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WEST VIRGINIA CODE
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WVC 31 - CHAPTER 31. CORPORATIONS.

WVC 31 - 1 - ARTICLE 1. BUSINESS AND NONPROFIT CORPORATIONS.


WVC 31 - 1 - 1 §§31-1-1 to 31-1-160.
Repealed.

Acts, 2002 Reg. Sess., Ch. 25.
WVC 31 - 1 A- ARTICLE 1A. LIMITED LIABILITY COMPANIES.


WVC 31 - 1 A- 1 §§31-1A-1 to 31-1A-69.

Repealed.

Acts, 1996 Reg. Sess., Ch. 256.


WVC 31 - 2 - ARTICLE 2. RAILROAD COMPANIES.


WVC 31 - 2 - 1 §31-2-1. Railroad companies to be common carriers; general powers.
Every railroad company heretofore incorporated and organized under the laws of this state, or under the laws of any other state, and authorized or licensed to do business in this state, and every such company which hereafter shall be incorporated and organized under the provisions of article one of this chapter, or authorized or licensed to transact business under said article, is a common carrier, and is authorized to acquire, construct, and own, maintain, operate and hold, railway lines, plants and systems, and any and all other suitable facilities for, and to engage in transporting persons and all commodities, objects and things which are subjects of commerce or of transportation by any and all means and methods, which are now used, or which may hereafter be developed, for such purpose.

No such railroad company shall engage in any other business in this state, except as hereinafter authorized.


WVC 31 - 2 - 2 §31-2-2. Right to own and dispose of property.
Every such railroad company shall have the right to purchase, take by voluntary gift or grant, acquire by condemnation, own, hold and use, all real estate and other property necessary for its corporate objects and purposes, and, when any property so acquired shall be no longer required for its use and purposes, to sell and convey the same.


WVC 31 - 2 - 3 §31-2-3. Right to produce electricity for own uses.
Any such railroad company may acquire, construct, own, hold and operate plants and properties for the generation, production and transportation of electricity in this state, for its corporate uses and purposes: Provided, That it shall not build or construct any hydroelectric plant or any dams or impounding basins for the use of such plant in any waters of the state, without having first obtained the consent of the public service commission of the state so to do.


WVC 31 - 2 - 4 §31-2-4. Right to dispose of surplus electricity, power, etc.
Any such railroad company, owning and operating any plant in this state for the production of electricity and power primarily for its own use, may sell and dispose of any surplus electricity or power not required for its use, under such regulations as are prescribed by law or by the public service commission of the state by authority conferred upon it by any law: Provided, That in the case of a corporation engaged or heretofore engaged in the operation of street or interurban railways by electricity, or other motive power than steam, it shall have the right to furnish and sell to the public electricity, water and gas, either natural or artificial, or both, and to purchase, hold and use such property, rights, privileges and franchises as may be necessary in the generation, production, manufacture and sale to the public of such electricity and gas, and in the storage, filtration, distribution, delivery and sale to the public of water: Provided further, That no right, privilege or franchise granted under this section or now held shall be exercised without first obtaining from the public service commission, if provided by law, the authority so to do, and, in the event of sales within a municipality until after having first procured a franchise therefor from the municipality in which it seeks to operate.


WVC 31 - 2 - 5 §31-2-5. Buying, selling or transporting coal and coke.
It shall be unlawful for any railroad corporation to engage, directly or indirectly, in the business of buying and selling coal or coke, or to promise, pledge or lend its credit, money or other property or thing of value to another, either natural or corporate, engaged in such business, but nothing herein shall prevent such corporation from purchasing such articles for its own consumption, or when it is the owner of any such commodities from selling and shipping the same: Provided, That in doing so, such corporation shall not discriminate in rates, distribution of cars or otherwise against other shippers of like commodities on its lines: Provided further, That when such company has the right to sell either of such commodities, and is unable from any cause to fill any bona fide contracts it may have made to supply such commodities, or either of them, it may purchase them to enable it to fill such contracts.

Every railroad corporation, along whose line of railroad the industry of mining coal or manufacturing coke is carried on, shall without discrimination between or among shippers, and without unnecessary delay, make a reasonable provision for the transportation of all such coal and coke offered for transportation over its railroad, and no such railroad corporation shall discriminate in rates, distribution of cars or otherwise against or among shippers of coal or coke offered for shipment on its line or lines.

The circuit and criminal courts of every county through or into which the railroad of any such railroad corporation violating any or either of the provisions of this section may pass, shall have concurrent jurisdiction of all the offenses under and violations of the provisions of this section.

Any railroad corporation or officer or agent thereof who shall knowingly and wilfully violate any of the provisions of this section, shall, for each and every such offense, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than fifty nor more than five hundred dollars.


WVC 31 - 2 - 6 §31-2-6. Charter to show principal cities and towns to be served by railroad.
Any charter issued under article one of this chapter incorporating any railroad company for the purpose of constructing a railroad in the state of West Virginia shall name the principal towns and cities which are proposed to be reached and served by such railroad.


WVC 31 - 2 - 7 §31-2-7. Filing map of railroad.
Every railroad corporation shall, within a reasonable time after its railroad is located in this state, cause to be made a map and profile thereof, with the names of the owners of the lands through which it runs, and of the noted places along the same stated thereon, and file the same in the office of the secretary of state, and in the office of the clerk of the county court of each county in which any part of said road is located.


WVC 31 - 2 - 8 §31-2-8. Warning of approach of train at crossings; crossing railroad tracks.
A bell or steam whistle shall be placed on each locomotive engine, which shall be rung or whistled by the engineer or fireman, at a distance of at least sixty rods from the place where the railroad crosses any public street or highway, and be kept ringing or whistling for a time sufficient to give due notice of the approach of such train before such street or highway is reached, and any failure so to do is a misdemeanor punishable by a fine of not exceeding one hundred dollars; and the corporation owning or operating the railroad shall be liable to any party injured for all damages sustained by reason of such neglect. When the tracks, other than switch or sidetracks, of two railroads cross each other, or in any way connect at a common grade, the crossing shall be made and kept in repair, and watchmen maintained thereat at the joint expense of the companies owning the tracks; all trains or engines passing over such tracks shall come to a full stop not nearer than two hundred feet nor farther than eight hundred feet from the crossing and shall not cross until signaled so to do by the watchman, nor until the way is clear; and when two passenger or freight trains approach the crossing at the same time, the train on the road first built shall have precedence if the tracks are both main tracks over which all passengers and freights on the roads are transported; but if only one track is such main track, and the other is a side or depot track, the train on the main track shall have precedence; and if one of the trains is a passenger train and the other a freight train, the former shall take precedence; and regular trains on time shall take precedence over trains of the same grade not on time, and engines with cars attached not on time shall take precedence over engines without cars not on time: Provided, That if such two railroads crossing each other, or in any way connecting at a common grade, by works or fixtures to be erected by them render it safe to pass over such crossing without stopping, and such works and fixtures first be approved by the public service commission of West Virginia, and the plan thereof for such crossing designating the plan of crossing has been filed with said commission and approved by it, the provisions of this section relating to railroad crossings shall not apply.


WVC 31 - 2 - 9 §31-2-9. Signboards or warning notices at crossings.
Every railroad company shall, at every place where a road or street crosses its railroad on the same level, erect and maintain suitable signboards or notices of warning apprising persons of the danger in crossing its tracks. All such signboards or notices shall be of the design and construction and shall be located in the manner required or approved by the state road commission. Any railroad company failing to comply with the provisions of this section shall be fined five dollars for each week that any such failure continues.


WVC 31 - 2 - 10 §31-2-10. Watering troughs for livestock.
All railroads maintaining stations that are shipping points for livestock, where there are as many as one thousand head shipped in any one year, shall wherever practicable place within the stock pens owned or controlled by such railroad company suitable watering troughs which shall, at all times during the time stock is being shipped from the station, be supplied with pure drinking water such as stock will drink. It shall be considered practicable where there are waterworks from which water can be obtained (city or otherwise) by piping not to exceed one fourth of a mile.

Any railroad company which refuses to comply with this section shall be guilty of a misdemeanor and shall be fined not less than fifty dollars nor more than one hundred dollars for each offense. And each day that such pens are without water during the shipping season shall be considered a separate offense.


WVC 31 - 2 - 11 §31-2-11. Consolidation of railroad properties.
Any railroad company in this state may, with the assent and approval of the public service commission, consolidate its properties and franchises with the property and franchises of another railroad company or other railroad companies, or obtain the possession and control of the lines and tracks of another railroad company or of other railroad companies, by purchase or lease, whether such railroads are or are not parallel or competing lines.


WVC 31 - 2 - 12 §31-2-12. Passing into other states.
The railroad or any extension or lateral or branch line of any railroad company may pass out of this state into any other state, with the assent of such state, and back again into this state as often as may be found necessary or convenient in locating such railroad, extension or lateral or branch line.


WVC 31 - 2 - 13 §31-2-13. Enumerated powers.
In furtherance, and not in limitation, of the general or other powers of any railroad company, every such railroad company shall have the following powers, it being provided that the enumeration herein of specific powers shall not limit or restrict in any manner the general or other powers of such company:

(a) To cause such examination and survey for its proposed railroad or any extension or lateral or branch line, to be made as may be necessary to the selection of the most advantageous route, and for such purpose such company or its officers, agents, engineers or employees, may enter upon the lands or waters of any person or corporation; but subject to responsibility for all damages occasioned thereby.

(b) To lay out its road, not exceeding one hundred and fifty feet in width, with such additional width as may be necessary for the purpose of excavations and embankments for the proper construction, repair and security of the railroad; and to construct such road.

(c) To change or relocate at any time the line or lines, grade or location of its railroad, or any part thereof, and to construct a new line or lines, grade or location for the same for the purpose of reducing grades or curvature, or for the purpose of avoiding annoyance to public travel or dangerous or difficult or expensive curves or grades, or unsafe, impracticable, unsubstantial or expensive, or otherwise undesirable, locations, routes, grounds or foundations, or for otherwise improving the line or lines of railroad, or for other reasonable cause, and to construct cutoffs for any such purpose or cause; but this provision shall not be construed to give authority to such railroad company to abandon, unless otherwise provided by law, the use of such line or lines, as formerly located, if the continued use thereof shall be necessary to serve industries or communities thereon.

(d) To change the general route or termini of a proposed railroad, before the same has been originally completed; but such change of general route or termini before completion shall only be made when authorized by a majority of the stock of such corporation voting thereon at an annual or a special meeting of the stockholders, and it shall operate as a release of the right of such corporation to build on the abandoned location, and the order or resolution of the stockholders authorizing such change shall be certified by the corporation to the secretary of state, and recorded in his office. All the provisions of law shall apply to the changed or new route, termini, location, grade and line mentioned in this subdivision or the last preceding subdivision.

(e) To construct its railroad across, along or upon any stream of water, watercourse, street, highway, state or county-district road, or canal, which the route of such railroad shall intersect or touch; but the exercise of such power shall be in accordance with the provisions of chapters seventeen and fifty-four of this code in relation thereto; but nothing in this chapter contained shall be construed to authorize the construction of any railroad upon or across any street, in the inhabited portion of a city, or incorporated town or village, without the assent of the corporation of such city, town or village.

(f) To take and hold under any grant or ordinance made by a municipal corporation any interest or right such municipal corporation may have in any street, alley or public ground, and such railroad corporation may in exchange therefor, in whole or in part, dedicate or otherwise secure to public use, another street, alley or parcel of ground out of real estate owned by such railroad corporation whether acquired by purchase or condemnation; or under an agreement with such municipal corporation may condemn land for use as such new street, alley or public ground, in the same manner as it may condemn land for its own use.

(g) To cross at grade, or to cross over or under, intersect, join and unite its railroad with any other railroad now built and constructed, or hereafter to be built and constructed within thisstate, at any point on its route, and upon the grounds of such other railroad company, with the necessary turnouts, sidings and switches, and other conveniences in furtherance of the object of its connections, and every corporation whose railroad is, or shall be hereafter intersected by any new railroad, shall unite with the corporation owning such new railroad in forming such intersections and connections and grant the facilities aforesaid; and if the two corporations cannot agree upon the amount of compensation to be made therefor, or the points and manner of such crossing and connections, the same shall be ascertained and determined in the manner prescribed by chapter fifty-four of this code.

(h) To construct, maintain and operate lateral and branch lines; to use and operate any part of its main line and of a lateral or branch line or lines when completed as though the whole of its railroad was completed; and to construct, maintain and operate telegraph and telephone lines along the line of its railroad and the lateral and branch lines thereof, and connecting with any of its offices, works and improvements.

(i) To erect or otherwise acquire and maintain all necessary or convenient structures, fixtures, machinery and facilities for the construction, maintenance or operation of the railroad or business of such corporation.

(j) To regulate the time and manner in which passengers and property shall be transported, and the compensation to be paid therefor, subject, nevertheless, to the provisions of any law that has been or may be hereafter enacted.

(k) From time to time to borrow money for all or any of the purposes of the corporation and to issue, sell, pledge, dispose of and transfer bonds, evidences of indebtedness and preferred stock, or any of them, for any money so borrowed; and to issue, sell, pledge, dispose of and transfer its stock, bonds and evidences of indebtedness, or any of them, for land, money, labor, property or materials for all or any of the purposes of such corporation; and in case it be found necessary to do so, such corporation may sell and dispose of its stocks, bonds and evidences of indebtedness, or any of them, at less than the par value thereof. And such corporation shall have the power from time to time to mortgage or pledge its property, real and personal, and franchises, to secure any bonds, stock, evidences of indebtedness, or any of them. And the directors of such corporation may be empowered, in pursuance of any order or resolution of the stockholders, to confer on any holder of any such bond for money borrowed by it the right to convert the principal due or owing thereon into stock of such corporation at such time, on such terms and under such regulations as may be provided in such order or resolution or the bylaws of such corporation.

(l) With the assent of the holders of two thirds of its stock, had by a vote at a stockholders' meeting, to become surety for, or guarantee, the bonds, stock or debt of any railroad company, or in any other manner aid such railroad company in the construction of its railroad or other works or improvements.


WVC 31 - 2 - 14 §31-2-14. Foreclosure or judicial sale of railroad company.
If a sale shall be made under a trust deed or mortgage executed by a railroad corporation on all its works and property, or if the sale of such property shall be made under the decree of a court, and there be a conveyance to any person or persons pursuant to any such sale, said sale and conveyance shall pass to the purchaser at such sale, not only the works and property of the corporation as they were at the time of making the trust deed or mortgage, but any works which the company may, after that time and before the sale, have constructed, and all other property of which it may be possessed at the time of the sale, other than debts due to it. Upon such conveyance to the purchaser such company shall ipso facto be dissolved, and such purchaser shall forthwith be a corporation by any name which may be set forth in such conveyance, or in any writing signed by him or them, and recorded in the office of the clerk of the county court of any county wherein the property so sold, or any part thereof, is situated.


WVC 31 - 2 - 15 §31-2-15. Same -- Rights and duties of purchaser.
The corporation created by or in consequence of such sale and conveyance shall succeed to all such franchises, rights and privileges, but not immunity from taxation, and perform all such duties as would have been had, or should have been performed by the first company, but for such sale and conveyance; save only, that the corporation so created shall not be entitled to debts due to the first company, and shall not be liable for any debts of, or claims against the first company, which may not be expressly assumed in the contract of purchase; and that the whole profits of the business done by such corporation shall belong to such purchaser and his assigns. His interest in the corporation shall be personal estate, and he or his assigns may create so many shares of stock therein as he or they may think proper, not exceeding together the amount of stock in the first company at the time of the sale, and assign the same in a book kept for that purpose. Such shares shall thereupon be on the footing of shares in corporations generally, except only that the first meeting of the stockholders shall be held on such day and at such place as shall be fixed by such purchaser, of which notice shall be published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be each county in the state wherein such corporation may do business.


WVC 31 - 2 - 16 §31-2-16. Railroad company pesticide use..
               (a) No later than seven days before applying a pesticide to a right\of\way that a railroad company owns or maintains, the railroad company shall provide pesticide safety information, which may be obtained by the railroad company's contracted pesticide applicator, by posting at affected on-duty railroad locations and through train bulletins, dispatcher messages, or other required documentation for each train and engine crew that will be working in the affected pesticide spray area. Additionally, the railroad company shall provide appropriate documentation to ensure prompt notification for maintenance of way, mechanical, signal employees, or other rail workers that will be working in the affected pesticide spray area. A railroad company shall include all of the following in the safety information provided under this subdivision:

               (1) The location and description of the area to be treated.

               (2) The name of the pesticide, its active ingredients, and its registration number under 7 U.S.C. §§ 136 et seq. The material safety data sheet(MSDS) for the pesticide shall satisfy this purpose.

               (3) The approximate date and time that the pesticide is to be applied.

               (4) Any restricted entry interval specified on the pesticide labeling. The MSDS for the pesticide shall satisfy this purpose: Provided, That the railroad company shall not require an employee to reenter the pesticide spray area prior to the requirements specified by the MSDS on the pesticide being utilized: Provided however, That train and/or on-track movement is not prohibited.

               (5) A description of where the information required to be on the pesticide label under 7 U.S.C. §§ 136 et seq or under the provisions of article sixteen-a, chapter nineteen of this code is available for review. The MSDS for the pesticide shall satisfy this purpose.

               (6) Emergency medical contact information.

               (b) A railroad company shall keep the information required by subsection (a) posted at the location accessible to employees of the railroad for at least thirty days after the day of application.

               (c) No later than seven days before applying a pesticide to a right-of-way that a railroad company owns or maintains, the railroad company shall provide all of the following to each individual who directly supervises employees who work in the area to be treated:

               (1) The information described in subdivision (2) to (6) of subsection (a); and

               (2) A description of the central location where the railroad company provides the pesticide safety information to employees under the provisions of subsection (a).

               (d) A railroad company shall make available to the public on its Internet site a description of how to obtain answers to questions about pesticide use by the railroad company, including a telephone number for the railroad and any toll\free number maintained by the railroad company to provide information about pesticide use.

               (e) A railroad company shall provide annual pesticide safety training. This training may coincide with the annual railroad operating rules class or at any other operating or safety training class that is scheduled annually. This training shall be provided to railroad employees who work along railroad rights\of\way and in rail yards and to other employees who, due to the nature of their employment, may work in areas to which pesticides have been applied. It is the duty of the railroad company to keep records for each training session, which should include, but not be limited to, the date of the training session, the employees attending, and the name of the trainer and the trainer's employer. In the training under this subsection, a railroad company shall include, but not be limited to, information about restricted entry intervals, requirements for personal protective equipment, how to read pesticide labels, and incident and complaint reporting.

               (f) For purposes of this section, the term "pesticide" is defined by section three, article sixteen-a, chapter nineteen of this code.
WVC 31 - 2 - 17 §31-2-17. Selling railroad scrap metal.

          (a) As used in this section:

          (1) "Company" is a railroad carrier as defined in section twenty-eight, article three, chapter sixty-one;

          (2) "Railroad scrap metal" means any materials derived from railroad track, railroad track material, worn or used links, pins, journal bearings, or other worn, used, or detached appendages of railroad equipment or railroad track;

          (3) "Purchaser" means any person in the business of purchasing railroad scrap metal, any salvage yard owner or operator, any public or commercial recycling facility owner or operator and any agent or employee thereof, or other individual or entity who purchase any form of railroad scrap metal;

          (4) "Confusion of goods" means the intended mixture of similar railroad scrap metal done purposely by the purchaser without authorization of right or title to the railroad scrap metal.

          (b) Only a duly authorized individual, agent, officer or employee of a company may sell or dispose of railroad scrap metal owned by the company. Any sale or disposition of railroad scrap metal made by any unauthorized individual is void: Provided, That the purchaser knowingly purchased company railroad scrap metal.

          (c) All sales or disposition of company railroad scrap metal must:

          (1) Be in quantities equal to or greater than one ton;

          (2) Be accompanied by a bill of sale or other written evidence of authorization to sell the railroad scrap metal, a copy of which shall be retained by the purchaser and the duly authorized seller of railroad scrap metal; and,

          (3) Comply with other lawful requirements regarding the sale and purchase of railroad scrap metal.

          (d) If a duly authorized individual sells or disposes of railroad scrap metal in quantities less than one ton, or without delivering a bill of sale or other written evidence of authorization from the company for sale or disposition of railroad scrap metal to the purchaser, the company shall not thereafter be entitled to the benefit of subsections (g) through (i) of this section.

          (e) Before knowingly acquiring railroad scrap metal the purchaser shall attempt to ascertain the lawful ownership thereof, whether by evidence of a bill of sale from the company, or other form of written authorization from the company for sale or disposition of railroad scrap metal to the purchaser.

          (f) In any civil action where the company claims to be the rightful owner of railroad scrap metal in the possession of a purchaser, the company may, in addition to any other relief to which the company may be entitled, seek an immediate order from the court to physically preserve any railroad scrap metal which is the subject of the suit, and any other metals with which they may have been confused, while the suit is pending.

          (g) In a civil action regarding rightful possession and ownership of railroad scrap metal, if the purchaser cannot produce the bill of sale or other written evidence of authorization to sell the railroad scrap metal, the court shall presume that the subject railroad scrap metal was unlawfully taken from the company.

          (h) The purchaser claiming ownership of the railroad scrap metal in controversy may rebut this presumption and prove a lawful right or title to the subject railroad scrap metal, but in the absence of adequate proof, the company shall be held to be the general owner of the subject railroad scrap metal, and shall be entitled to immediate possession of the railroad scrap metal in controversy.

          (i) If the court finds that any portion, or all of the railroad scrap metal in controversy was unlawfully obtained by the purchaser, and mixed or confused with other railroad scrap metal, it shall be deemed a confusion of goods. In the case of a confusion of goods, the purchaser loses any right in all mixed railroad scrap metal unless the railroad scrap metal can be identified and separated among the company and the purchaser.

          (j) In a civil action regarding rightful possession and ownership of railroad scrap metal, if the court finds that the purchaser knowingly purchased company railroad scrap metal and failed to attempt to ascertain that the person selling the railroad scrap metal had a legal right to do so, the court shall award the company costs and attorneys fees related to that action.
WVC 31 - 2 A- ARTICLE 2A. RAILROAD CROSSING.


WVC 31 - 2 A- 1 §31-2A-1. Definitions.
As used in this article:

(a) "Carrier,""railroad" or "railroad company" means a common carrier by railroad.

(b) "Train" or "trains" mean engines, cars and any type of railroad equipment or rolling stock, or any part thereof, capable of blocking any crossing of a railroad track or tracks and any public street, road or highway.


WVC 31 - 2 A- 2 §31-2A-2. Blocking of crossing prohibited; time limit.
(a) It is unlawful for any railroad company, except in an emergency, to order, allow or permit the operation of or to operate or to so operate its system so that a train blocks the passage of vehicular traffic over the railroad crossing of any public street, road or highway of this state for a period longer than ten minutes. This section does not apply to an obstruction of any such street, road or highway caused by a continuously moving train or caused by circumstances wholly beyond the control of the railroad, but does apply to all other obstructions as aforesaid, including, but not limited to, those caused by a stopped train or a train engaged in switching, loading or unloading operations: Provided, That if any such train is within the jurisdictional limits of any municipality which now has or hereafter shall have in force and effect an ordinance limiting the time a railroad crossing may be blocked by a train, such ordinance shall govern, and the provisions of this article shall not be applicable.

(b) Upon receiving notification from a law-enforcement officer, member of a fire department, operator of an emergency medical vehicle, or a member of an emergency services provider that emergency circumstances require the immediate clearing of a public highway railroad grade crossing, the members of the train crew of the train, railroad car or equipment, or engine blocking such crossing shall immediately notify the appropriate railroad dispatcher of the pending emergency situation. Upon receipt of notice of such emergency circumstances by the train crew or dispatcher, the railroad shall immediately clear the crossing, consistent with the safe operation of the train.


WVC 31 - 2 A- 3 §31-2A-3. Responsibility of railroad company.
The railroad company shall be solely responsible for the acts of its agents and employees in violating any provision of this article or any provision of any ordinance of any municipality or any provision of any order of a county or other public authority regulating the period of time any such street, road or highway may be so blocked by a train.


WVC 31 - 2 A- 4 §31-2A-4. Presumption.
There shall be a rebuttable presumption that a train is operated by the carrier whose marks, numbers, signs and symbols of identification appear on the engine or caboose of such train.


WVC 31 - 2 A- 5 §31-2A-5. Service of process.
Process issuing for a violation of this article may be served upon the engineer or conductor of the train causing a violation of the provisions of this article or any other officer, agent or attorney-in-fact of the railroad company authorized by law to receive service of summons or other process issuing against said railroad company.


WVC 31 - 2 A- 6 §31-2A-6. Fines and penalties.
(a) Any railroad company, carrier or railroad violating the provisions of subsection (a), section two of this article is guilty of misdemeanor and, upon conviction thereof, shall be fined not less than one hundred fifty dollars; upon a second conviction occurring at the same crossing within one year thereafter, shall be fined not less than two hundred fifty dollars; and upon a third or subsequent conviction occurring at the same crossing within one year after the first conviction, shall be fined not less than three hundred fifty dollars.

(b) Any railroad company, carrier or railroad violating the provisions of subsection (b), section two of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one thousand dollars; upon a second conviction occurring at the same crossing within one year thereafter, shall be fined not less than two thousand five hundred dollars; and upon a third or subsequent conviction occurring at the same crossing within one year after the first conviction, shall be fined not less than five thousand dollars.


WVC 31 - 2 A- 7 §31-2A-7. Severability.
If any provision of this article or the application thereof to any person or circumstance be held invalid, such invalidity shall not affect other provisions or applications of the article, and to this end the provisions of this article are hereby declared to be severable.


WVC 31 - 2 B- ARTICLE 2B. ILLUMINATION EQUIPMENT FOR RAILROAD CABOOSES.


WVC 31 - 2 B- 1 §31-2B-1. Legislative findings and purposes.
The Legislature hereby finds that for the purpose of protecting the lives of workmen, other persons and railroad equipment there shall be maintained at the rear of cabooses illumination when they are being pushed during hours of darkness.


WVC 31 - 2 B- 2 §31-2B-2. Illumination requirements; time period for implementation; application of requirements.
(a) From the effective date of this article, there shall be maintained at the rear of all cabooses, while cabooses are being pushed during the hours of darkness, either a handheld or installed backup light which shall have sufficient candlepower to illuminate the track for a distance of at least two hundred fifty feet under clear atmospheric conditions on all local and mine runs.

(b) Every railroad company operating within this state shall be required to comply with the provisions of this article, but shall have one year from the effective date hereof to comply with such requirements.

(c) The provisions of this article shall apply to all local and mine run cabooses.


WVC 31 - 2 B- 3 §31-2B-3. Repair and maintenance; exemption.
Any railroad company operating a caboose to which the illumination requirements of section two of this article apply shall not be in violation of said article if the failure of lighting equipment required under the provisions of this article is corrected at the first point maintenance supplies are available, or in the case of repairs, the first point at which materials and repair facilities are available and repairs can reasonably be made.


WVC 31 - 2 B- 4 §31-2B-4. Runs originating from out of state.
Runs originating from without the state of West Virginia shall be exempt from the requirements of this article.


WVC 31 - 2 B- 5 §31-2B-5. Enforcement penalty.
The provisions of this article shall be enforced by the public service commission. If any railroad company violates the provisions of this article, it shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than five hundred dollars for each violation.


WVC 31 - 2 B- 6 §31-2B-6. No individual responsibility.
With the exception of intentional misconduct or negligence on the part of the employee, this article shall not be construed to impose any individual responsibility upon any railroad employee for damage to his employer due to breakage or loss of use while the employee is engaged in handling the lights as required by this article.

This article shall be construed as imposing upon the employer responsibility for securing and maintaining the lights required by this article.


WVC 31 - 3 - ARTICLE 3. BOOM COMPANIES.


WVC 31 - 3 - 1 §31-3-1. Consent of state to construction of booms.
The consent of the state is given for the construction of a boom or booms, by corporations incorporated for the purpose, with or without piers, dam or dams, in the rivers, creeks or other streams of this state which may be necessary for the purpose of stopping and securing boats, rafts, logs, masts, spars, lumber and other timber: Provided, however, That no such boom or dam shall be constructed in any of the rivers, creeks or other streams of the state, which are navigable by steamboats at an ordinary stage of water above the places where such boom or dam is proposed to be located.


WVC 31 - 3 - 2 §31-3-2. Powers of boom company; boomage; lien; sale for tolls; free passage of logs.
Every such corporation shall, after erecting its boom, have the exclusive privilege of maintaining a suitable boom or booms, with or without piers, dam or dams, across the stream designated, within two miles above its principal boom, for the purpose of stopping and securing boats, rafts, sawlogs and other timber of value, but such boom or booms shall be so constructed as to permit boats, rafts and other timber, when desired by the owner, to pass them without unavoidable delay and without paying toll, boomage or other charges, and may erect their booms on the rivers and other streams, and may dredge and clear the channels thereof, and remove obstructions therefrom; and such corporation may build sawmills on lands acquired in any other way than by condemnation; and may manufacture and sell lumber and construct tram-railways and dams, and do such other work as may be necessary for the purpose of getting logs and lumber to, down and from the river and its branches, on which such boom is located; and, in the event the lands necessary for such tram-railways cannot be purchased from the owner or owners thereof at a reasonable price, then such corporation may have the same condemned for such purpose in the manner now provided by law for cases of a similar nature: Provided, That nothing in this section shall be so construed as to prevent any boom company from using water surface for two miles below its boom for assorting and bunching its own and other boats, rafts, sawlogs and other timber of value, and that no company shall so construct its boom as to deprive another company of such right, nor shall any boom company which may construct a boom within two miles below a boom heretofore constructed have exclusive privileges of the water or stream above such other boom.

Boomage or toll shall be charged at a rate not less than twenty-five cents nor more than one dollar per thousand feet board measure; or not less than twenty nor more than eighty cents per one hundred cubic feet, except as hereinafter provided, which rate shall be determined by a commission in the manner following, to wit: The circuit court of each county, the timber of which can be floated into the boom, or the judge of such court in vacation, shall appoint one person, and such corporation shall appoint a person and if such persons are unable to agree, they shall choose another person. None of the persons so selected shall be a stockholder or interested in such corporation. The persons so appointed and chosen shall be versed in the timber and lumber business, and be qualified to make such measurements and calculations as may be necessary. Persons so appointed or chosen shall constitute a commission, whose duty it shall be to fix the rates of boomage which the corporation may charge; and in determining this rate they shall take into consideration the ease or difficulty, as the case may be, of booming logs, etc., in such boom, and also any extraordinary expenditure of money which the corporation may have made to facilitate its business; and such commissioners shall fix a rate, which shall be in their judgment a fair and just compensation to the corporation for the capital invested and labor performed in booming logs, timber, etc., in the limits above described. And such commissioners may, in their discretion, or when requested to do so by parties interested, fix the separate rate which shall be charged for logs, ties, lumber, staves, or any other specific kind of lumber or timber which may be floated in such boom, by the hundred, thousand, or by bulk, as the case may be. The report of such commissioners shall be filed in the office of the clerk of the circuit court of each county in which a commissioner was appointed, and published within ten days after the report has been agreed upon as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be each county interested in such boom. Should the corporation or any interested party not be satisfied with the report of the commissioners, they may take exceptions thereto, which exceptionsmay be heard by the judge of the circuit court of any county interested, in term time or in vacation, and, if it appear to the court or judge that the rates established by the commissioners are unjust, either to the corporation or private persons, such report may be set aside and a new commission appointed. But unless exceptions are taken to the report of such commissioners within sixty days after the filing of the same, the report shall be taken as confirmed, and be binding upon all parties interested. Any boom company organized under the provisions of this chapter, or any party interested, may, if it so desire, ask for a commission once every five years, to revise the rate of boomage; such commission to be constituted as provided for in this section. When the stream boomed lies wholly in one county, there shall be two commissioners appointed by the circuit court of that county, who, together with the one appointed by the corporation, as hereinbefore provided, shall constitute such commission. If any controversy shall arise between such corporation and any person or persons having timber or other lumber in such boom, on account of such lumber, or the rates of boomage, the commissioners authorized to be appointed by this section may, if the parties interested and such corporation so desire it, act as arbitrators to settle the same in such manner and with such result as the law provides in other cases of arbitration. The commissioners appointed under this section shall receive three dollars per day for their services, to be paid by such corporation, except that, after the rates have been fixed, any subsequent commission shall be paid by the party asking it.

Such corporation shall have a lien on all sawlogs and other timber and lumber thus boomed for the payment of all tolls for booming, until the same shall be paid.

If any timber shall have been boomed securely, as aforesaid, and no person shall appear to claim the same, and pay the tolls thereon, within ninety days, it shall be lawful for the corporation, after advertising the same as hereinafter provided, reciting the marks, if any, to make application to any justice of the peace of such county, whose duty it shall be, upon proper proof of the publication of such notice, to direct a sale of such timber, and designate some officer or other person to make such sale, either by public auction or by private sale, as to the justice shall seem most advantageous to the parties interested; and at any time within a year from such sale, the owner shall be entitled to receive the proceeds thereof, after deducting the toll and expenses; but if not claimed within one year, the proceeds shall inure to and be vested in the general school fund. Such advertisement shall be published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be each county in which such boom or booms are located.

Where several companies are operating on the same stream, the upper companies shall pass free of charge through or around their booms, with as little delay as possible, all logs, lumber, etc., distinctly marked as belonging to or in care of the boom or booms below them.


WVC 31 - 3 - 3 §31-3-3. Injuries to property of boom company.
If any person or persons shall wilfully and maliciously injure or destroy any of such booms or piers or other works connected therewith, or shall remove, alter or deface any mark or marks on any logs or other timber intended for such boom, he shall pay treble damages, to be recovered by an action brought in the name of such corporation, before a justice or any of the courts of the county having jurisdiction in which he or they shall reside, or in the county in which the offense was committed; and such person or persons so offending shall also be guilty of a misdemeanor, and, upon conviction thereof, may be fined not exceeding one hundred dollars or confined in the county jail not exceeding twelve months, or both, in the discretion of the court.


WVC 31 - 3 - 4 §31-3-4. Measurement of timber in boom.
If the parties interested shall not agree as to the measurement of the timber in such boom, it shall be done by commissioners, appointed by the circuit court or the judge thereof in vacation, of the county in which such boom is located; or the same may be measured, if the parties so desire it, by the commissioners authorized to be appointed by section two of this article; the expenses of such commission, in either case, shall be paid by the party in error as to the measurement, and if both parties shall be found to be in error, such expenses shall be paid by them equally.


WVC 31 - 3 - 5 §31-3-5. Removal of timber lodging on lands; damages; taking or carrying away without authority.
If any logs, timber, or other lumber, while floating down any stream, be lodged upon any improved lands or inclosure of another, it shall be the duty of the owner to cause the same to be removed therefrom within sixty days from the time such logs, timber or lumber is lodged. If any person shall, without the authority of the owner, during such sixty days, take, carry away, injure or destroy, or convert to his own use any of such logs, timber or lumber, he shall be guilty of a misdemeanor, and, upon conviction, fined not more than one hundred dollars, and, at the discretion of the court, be imprisoned not more than ninety days. The owner of such timber shall be liable to the owner of the land for any damages sustained by him by reason of such logs, timber or lumber lodging or remaining thereon.


WVC 31 - 3 - 6 §31-3-6. Obstruction of use of stream to drive logs into boom.
If the owner of logs or other lumber placed in a stream above a boom erected thereon shall unreasonably delay driving such logs or lumber into such boom, so that persons wishing to use such stream for driving or floating logs or other lumber into such boom shall be compelled to drive such logs or lumber into the boom; or break any jam, to enable such person so to use such stream, the reasonable expenses of driving or floating such logs or other lumber, or breaking such jam, shall be borne by the owner of such logs or other lumber so obstructing such stream, to be recovered before a justice of the peace or other judicial tribunal having jurisdiction, and shall constitute a lien on such logs or other lumber until the same shall be paid.


WVC 31 - 3 - 7 §31-3-7. Liability of boom company for timber within boom.
Such corporation shall be liable for all logs, timber and other floatables which may come into its boom, except when they sink in deep water, or are carried away by unusually high water, or are destroyed by fire, not caused by the negligence of such corporation, its agents or employees.


WVC 31 - 3 - 8 §31-3-8. Meaning of "logs or timber."
Wherever the words "logs or timber" occur in this article, they shall be taken to mean logs and timber of every kind and description manufactured or unmanufactured.


WVC 31 - 3 - 9 §31-3-9. Injury to mill and other riparian property.
Nothing in this article shall be so construed as to deprive the owners of mill property, and other proprietors on such river and branches thereof from recovering damages for injury to their property by such corporation, their agents or employees.


WVC 31 - 3 - 10 §31-3-10. Filing marks and brands before driving logs.
Before the persons driving logs shall put their logs in any of such streams for the purpose of driving them, they shall file a memorandum with the clerk of the county court wherein such logs are, stating distinctly the brand or marks of such persons; and unless these requirements are complied with, such corporation shall in no manner be held liable for any loss occasioned by the loss of such logs.


WVC 31-3-11 §31-3-11. Obstruction of public roads or fords.
No company incorporated under the provisions of this article shall so exercise its corporate privileges, as to materially obstruct any public road or ford across any stream.


WVC 31 - 4 - ARTICLE 4. BANKING INSTITUTIONS.


WVC 31 - 4 - 1 §§31-4-1 to 31-4-20.

Repealed.

Acts, 1969 Reg. Sess., Ch. 7.


WVC 31 - 4 A- ARTICLE 4A. BANK COLLECTION CODE.


WVC 31 - 4 A- 1 §§31-4A-1 to 31-4A-17.

Repealed.

Acts, 1963 Reg. Sess., Ch. 193.


WVC 31 - 4 B- ARTICLE 4B. FEDERAL DEPOSIT INSURANCE CORPORATION.


WVC 31 - 4 B- 1 §§31-4B-1 to 31-4B-7.

Repealed.

Acts, 1969 Reg. Sess., Ch. 7.


WVC 31 - 4 C- ARTICLE 4C. NOMINEE REGISTRATION OF FIDUCIARY SECURITIES.


WVC 31 - 4 C- 1 §§31-4C-1 to 31-4C-5.

Repealed.

Acts, 1969 Reg. Sess., Ch. 7.


WVC 31 - 4 D- ARTICLE 4D. UNIFORM ACT FOR SIMPLIFICATION OF FIDUCIARY SECURITY TRANSFERS.


WVC 31 - 4 D- 1 §31-4D-1. Definitions.
In this article, unless the context otherwise requires:

(a) "Assignment" includes any written stock power, bond power, bill of sale, deed, declaration of trust or other instrument of transfer.

(b) "Claim of beneficial interest" includes a claim of any interest by a decedent's legatee, distributee, heir or creditor, a beneficiary under a trust, a ward, a beneficial owner of a security registered in the name of a nominee, or a minor owner of a security registered in the name of a custodian, or a claim of any similar interest, whether the claim is asserted by the claimant or by a fiduciary or by any other authorized person on his behalf, and includes a claim that the transfer would be in breach of fiduciary duties.

(c) "Corporation" means a private or public corporation, association or trust issuing a security.

(d) "Fiduciary" means an executor, administrator, trustee, guardian, committee, conservator, curator, tutor, custodian or nominee.

(e) "Person" includes an individual, a corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal or commercial entity.

(f) "Security" includes any share of stock, bond, debenture, note or other security issued by a corporation which is registered as to ownership on the books of the corporation.

(g) "Transfer" means a change on the books of a corporation in the registered ownership of a security.

(h) "Transfer agent" means a person employed or authorized by a corporation to transfer securities issued by the corporation.


WVC 31 - 4 D- 2 §31-4D-2. Registration in name of fiduciary.
A corporation or transfer agent registering a security in the name of a person who is a fiduciary or who is described as a fiduciary is not bound to inquire into the existence, extent, or correct description of the fiduciary relationship, and thereafter the corporation and its transfer agent may assume without inquiry that the newly registered owner continues to be the fiduciary until the corporation or transfer agent receives written notice that the fiduciary is no longer acting as such with respect to the particular security.


WVC 31 - 4 D- 3 §31-4D-3. Transfer pursuant to assignment by fiduciary.
Except as otherwise provided in this article, a corporation or transfer agent making a transfer of a security pursuant to an assignment by a fiduciary:

(a) May assume without inquiry that the assignment, even though to the fiduciary himself or to his nominee, is within his authority and capacity and is not in breach of his fiduciary duties;

(b) May assume without inquiry that the fiduciary has complied with any controlling instrument and with the law of the jurisdiction governing the fiduciary relationship, including any law requiring the fiduciary to obtain court approval of the transfer; and

(c) Is not charged with notice of and is not bound to obtain or examine any court record or any recorded or unrecorded document relating to the fiduciary relationship or the assignment, even though the record or document is in its possession.


WVC 31 - 4 D- 4 §31-4D-4. Obtaining evidence of appointment or incumbency of fiduciary.
A corporation or transfer agent making a transfer pursuant to an assignment by a fiduciary who is not the registered owner shall obtain the following evidence of appointment or incumbency:

(a) In the case of a fiduciary appointed or qualified by a court, a certificate issued by or under the direction or supervision of that court or an officer thereof and dated within sixty days before the transfer; or

(b) In any other case, a copy of a document showing the appointment or a certificate issued by or on behalf of a person reasonably believed by the corporation or transfer agent to be responsible or, in the absence of such a document or certificate, other evidence reasonably deemed by the corporation or transfer agent to be appropriate. Corporations and transfer agents may adopt standards with respect to evidence of appointment or incumbency under this subsection (b) provided such standards are not manifestly unreasonable. Neither the corporation nor transfer agent is charged with notice of the contents of any document obtained pursuant to this subsection (b) except to the extent that the contents relate directly to the appointment or incumbency.


WVC 31 - 4 D- 5 §31-4D-5. Adverse claims.
(a) A person asserting a claim of beneficial interest adverse to the transfer of a security pursuant to an assignment by a fiduciary may give the corporation or transfer agent written notice of the claim. The corporation or transfer agent is not put on notice unless the written notice identifies the claimant, the registered owner and the issue of which the security is a part, provides an address for communications directed to the claimant and is received before the transfer. Nothing in this article relieves the corporation or transfer agent of any liability for making or refusing to make the transfer after it is so put on notice, unless it proceeds in the manner authorized in subsection (b).

(b) As soon as practicable after the presentation of a security for transfer pursuant to an assignment by a fiduciary, a corporation or transfer agent which has received notice of a claim of beneficial interest adverse to the transfer may send notice of the presentation by registered or certified mail to the claimant at the address given by him. If the corporation or transfer agent so mails such a notice it shall withhold the transfer for thirty days after the mailing and shall then make the transfer unless restrained by a court order.


WVC 31 - 4 D- 6 §31-4D-6. Nonliability of corporation or transfer agent.
A corporation or transfer agent incurs no liability to any person by making a transfer or otherwise acting in a manner authorized by this article.


WVC 31 - 4 D- 7 §31-4D-7. Nonliability of third persons.
(a) No person who participates in the acquisition, disposition, assignment or transfer of a security by or to a fiduciary including a person who guarantees the signature of the fiduciary is liable for participation in any breach of fiduciary duty by reason of failure to inquire whether the transaction involves such a breach unless it is shown that he acted with actual knowledge that the proceeds of the transaction were being or were to be used wrongfully for the individual benefit of the fiduciary or that the transaction was otherwise in breach of duty.

(b) If a corporation or transfer agent makes a transfer pursuant to an assignment by a fiduciary, a person who guaranteed the signature of the fiduciary is not liable on the guarantee to any person to whom the corporation or transfer agent by reason of this article incurs no liability.

(c) This section does not impose any liability upon the corporation or its transfer agent.


WVC 31 - 4 D- 8 §31-4D-8. Law governing registering or transferring securities; application of article.
(a) The rights and duties of a corporation and its transfer agents in registering a security in the name of a fiduciary or in making a transfer of a security pursuant to an assignment by a fiduciary are governed by the law of the jurisdiction under whose laws the corporation is organized.

(b) This article applies to the rights and duties of a person other than the corporation and its transfer agents with regard to acts and omissions in this state in connection with the acquisition, disposition, assignment or transfer of a security by or to a fiduciary and of a person who guarantees in this state the signature of a fiduciary in connection with such a transaction.


WVC 31 - 4 D- 9 §31-4D-9. Tax obligations.
This article shall not affect any obligation of a corporation or transfer agent with respect to estate, inheritance, succession or other taxes imposed by the laws of this state.


WVC 31 - 4 D- 10 §31-4D-10. Uniformity of interpretation.
This article shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.


WVC 31 - 4 D- 11 §31-4D-11. Short title.

This article may be cited as the Uniform Act for Simplification of Fiduciary Security Transfers.


WVC 31 - 4 E- ARTICLE 4E. BANK SERVICE CORPORATIONS AND BANK SERVICES.


WVC 31 - 4 E- 1 §§31-4E-1 to 31-4E-5.

Repealed.

Acts, 1969 Reg. Sess., Ch. 7.


WVC 31 - 5 - ARTICLE 5. INDEMNITY COMPANIES.


WVC 31 - 5 - 1 §§31-5-1 to 31-5-15.

Repealed.

Acts, 1957 Reg. Sess., Ch. 97.


WVC 31 - 6 - ARTICLE 6. BUILDING AND LOAN ASSOCIATIONS.


WVC 31 - 6 - 1 §§31-6-1 to 31-6-44.

Repealed.

Acts, 1991 Reg. Sess., Ch. 30.


WVC 31 - 6 A- ARTICLE 6A. FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION.


WVC 31 - 6 A- 1 §§31-6A-1 to 31-6A-6.

Repealed.

Acts, 1991 Reg. Sess., Ch. 31.


WVC 31 - 7 - ARTICLE 7. INDUSTRIAL LOAN COMPANIES.


WVC 31 - 7 - 1 §§31-7-1 to 31-7-29.

Repealed.

Acts, 1996 Reg. Sess., Ch. 73.


WVC 31 - 8 - ARTICLE 8. BUSINESS OPERATIONS AND SUPERVISION OF BANKING INSTITUTIONS, INDUSTRIAL LOAN COMPANIES AND BUILDING AND LOAN ASSOCIATIONS.


WVC 31 - 8 - 1 §§31-8-1 to 31-8-46.

Repealed.

Acts, 1969 Reg. Sess., Ch. 7.


WVC 31 - 9 - ARTICLE 9. WATER POWER COMPANIES.


WVC 31 - 9 - 1 §§31-9-1 to 31-9-18.

Held unconstitutional.


WVC 31 - 10 - ARTICLE 10. CREDIT UNIONS.


WVC 31 - 10 - 1 §§31-10-1 to 31-10-35.
Repealed.

Acts, 1996 Reg. Sess., Ch. 98.


WVC 31 - 11 - ARTICLE 11. THE SAVINGS AND LOAN ASSOCIATION OF THE STATE OF WEST VIRGINIA.


WVC 31 - 11 - 1 §§31-11-1 to 31-11-21.

Repealed.

Acts, 1991 Reg. Sess., Ch. 149.


WVC 31 - 12 - ARTICLE 12. MEMBERSHIP IN FEDERAL SAVINGS AND LOAN ASSOCIATIONS.


WVC 31 - 12 - 1 §31-12-1. Certain building and loan associations and other institutions may subscribe to shares of federal savings and loan association.
Any building and loan association or company or savings and loan association or company or savings bank or any other association or corporation that may now or hereafter be eligible to become a member of any federal home loan bank according to the terms of the Federal Home Loan Bank Act, as the same may be amended from time to time, is authorized and empowered to subscribe to the shares of a federal savings and loan association, and may pay for such shares in cash or by the transfer or assignment of such assets of the subscriber as are approved by the federal home loan bank board in writing, evidenced by the certificate of the federal home loan bank board on file with the subscriber.


WVC 31 - 12 - 2 §31-12-2. Powers of federal savings and loan associations in state.
Whenever, by the terms of any general or special laws of this state, any restriction is imposed upon the conduct in this state of any building and loan association or company or savings and loan association or company or savings bank or any other association or corporation, the same shall not apply to the affairs or conduct of the business in this state of any savings and loan association formed under and pursuant to the act of Congress known as the Home Owners' Loan Act of one thousand nine hundred thirty-three, as the same may be amended from time to time, but such federal savings and loan association or associations may conduct business in this state according to the terms of the said Home Owners' Loan Act and the Federal Home Loan Bank Act and the rules and regulations from time to time fixed and prescribed by the federal home loan bank board and the federal home loan bank, and may do all things authorized or required by the said acts of Congress, as amended from time to time, whereby the said rules and regulations and the said federal savings and loan association or associations shall not be deemed foreign corporation or corporations as defined by any general or special law of this state.


WVC 31 - 12 - 3 §31-12-3. Powers of state building and loan associations, etc., in relation to federal home loan bank.
Any building and loan association or company or savings and loan association or company or savings bank or any other association or corporation that may now or hereafter be eligible to become a member of any federal home loan bank according to the terms of the Federal Home Loan Bank Act, as the same may be amended from time to time, is authorized and empowered to subscribe for and own and hold stock in such federal home loan bank and become a member thereof, or to borrow money from any federal home loan bank pursuant to the said act of Congress, as the same may be amended, and also to invest in the bonds of any federal home loan bank or the home owners' loan corporation, and also to give and pledge securities and conform to the provisions of the said Federal Home Loan Bank Act and to the rules and regulations from time to time fixed and prescribed either by the federal home loan bank board or the federal home loan bank, and to perform any acts and execute any instruments authorized or required by the said act of Congress, as amended from time to time, or by said rules and regulations.


WVC 31 - 12 - 4 §31-12-4. Joint offices, etc., with federal savings and loan association.
Any building and loan association or company or savings and loan association or company or savings bank or any other association or corporation that may now or hereafter be eligible to become a member of any federal home loan bank according to the terms of the Federal Home Loan Bank Act, as the same may be amended from time to time, is authorized and empowered to occupy the same office or offices and use the same facilities, officers, directors, and employees as and in conjunction with a federal savings and loan association upon such terms and conditions as may be agreed upon with the said federal savings and loan association.


WVC 31 - 12 - 5 §31-12-5. Conversion of state building and loan associations, etc., into federal savings and loan associations; effect.

Any building and loan association or company or savings and loan association or company or savings bank or any other association or corporation organized under the laws of this state may convert into a federal savings and loan association according to the terms of the Federal Home Loan Bank Act and the rules and regulations of the federal home loan bank board, as the same may be amended from time to time, by a resolution to such effect adopted at a meeting of the shareholders of any such association or corporation by the affirmative vote of a majority of the shareholders present in person or by proxy. Whenever any such association or corporation shall so convert itself into a federal savings and loan association, it shall thereupon come under the sole supervision of the federal home loan bank or the federal home loan bank board. At the time when such conversion becomes effective all the property of such association or corporation, including all its right, title, and interest in and to all property of whatsoever kind, whether real, personal, or mixed, and things in action, and every right, privilege, interest, and asset of any conceivable value of benefit then existing, belonging, or pertaining to it, or which would enure to it, shall immediately by act of law and without any conveyance or transfer or assignment, and without any further act or deed, be vested in and become the property of the federal savings and loan association, which shall have, hold, and enjoy the same in its own right as fully and to the same extent as the same was possessed, held, and enjoyed by such association or corporation so converting, and the federal savings and loan association as of the time of the taking effect of such conversion shall succeed to all the rights, obligations, and relations of such association or corporation.


WVC 31 - 13 - ARTICLE 13. HOSPITAL SERVICE CORPORATIONS AND MEDICAL SERVICE CORPORATIONS.


WVC 31 - 13 - 1 §§31-13-1 to 31-13-13.

Repealed.

Acts, 1957 Reg. Sess., Ch. 97.


WVC 31 - 14 - ARTICLE 14. WEST VIRGINIA BUSINESS DEVELOPMENT CORPORATIONS.


WVC 31 - 14 - 1 §31-14-1. Short title; definitions.
This article shall be known and may be cited as the "West Virginia Business Development Corporation Act."

As used in this article, the following words and phrases, unless definitely defined or described, shall have the meanings and references as follows:

(1) "Business Development Corporation": A West Virginia business development corporation created and organized under the provisions of this article.

(2) "Financial Institution": Any banking corporation or trust company, savings bank, building and loan association, industrial loan company, insurance company, or similar corporation, partnership, foundation, or other institution, either domestic or foreign, which is engaged in lending or investing funds.

(3) "Member": Any financial institution authorized to do business within this state which shall undertake to lend money to a corporation created under this article, upon its call, and in accordance with the provisions of this article.

(4) "Board of Directors": The board of directors created under this article.

(5) "Loan Limit": For any member, the maximum amount permitted to be outstanding at one time on loans made by such member to the corporation, as determined under the provisions of this article.


WVC 31 - 14 - 2 §31-14-2. Incorporators; purposes; agreement of incorporation.
Any number of persons, not fewer than ten, a majority of whom shall be bona fide residents of this state, may associate to create a business development corporation under the provisions of this article for the purpose of promoting, developing and advancing business and industrial development within the state and, to that end, may exercise the powers, rights and privileges hereinafter provided. The persons desiring to form the corporation shall sign, acknowledge and file with the Secretary of State an agreement in the general form prescribed by the Secretary of State, in which shall be set forth:

(1) The name of the corporation, which shall contain the words "Business Development Corporation," together with a designation of the area or locality within the state in which the corporation is intended to operate.

(2) The post-office address of its principal office or place of business.

(3) The object or objects for which the corporation is formed, which shall include the following:

To promote, develop and advance the business prosperity and economic welfare of the State of West Virginia and its citizens; to encourage and assist through loans, investments or other business transactions in the locating of new business and industry within the state and to rehabilitate and assist existing businesses and industries; to stimulate and promote the expansion of all kinds of business and industrial activity which will tend to advance business and industrial development and maintain the economic stability of the state, provide maximum opportunities for employment, encourage thrift, and improve the standard of living of the citizens of the state; to cooperate and act in conjunction with the Department of Commerce and with other organizations, federal, state or local, in the promotion and advancement of industrial, commercial, agricultural and recreational developments within the state; and to furnish money and credit, land and industrial sites, technical assistance and such other aid as may be deemed requisite to approved and deserving applicants for the promotion, development and conduct of all kinds of business activity within the state.

(4) The names and post-office addresses of the incorporators, and the number of shares of stock subscribed by each.

(5) Whether or not the corporation is to have perpetual existence; if not, the time when its existence is to commence and the time when its existence is to cease.

(6) Any provision in which the incorporators may choose to insert for the management of the business and for the conduct of the affairs of the corporation, and any provisions creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders and members thereof: Provided, however, That such provisions are not contrary to the provisions of this article.

(7) The agreement may also contain the following provision in these words verbatim:

"Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of West Virginia may, on the application in a summary way of this corporation or of any creditor or stockholder thereof, or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the laws of the State of West Virginia, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, such compromise or arrangement and such reorganization shall, if sanctioned by the court to which such application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this corporation, as the case may be, and also on this corporation."


WVC 31 - 14 - 3 §31-14-3. Authorized capital stock; description of shares; consideration for sale of shares.
The agreement of incorporation shall set forth the total amount of authorized capital stock, the number of shares in which it is divided, the par value of each of such shares and the amount of capital stock with which it will commence business and, if there be more than one class of stock, the total number of shares of all classes of stock which the corporation shall have authority to issue, with a description of the different classes and all other information with respect thereto required by section six, article one of this chapter. No corporation organized hereunder shall sell its shares for any consideration other than money.


WVC 31 - 14 - 4 §31-14-4. Issuance of charter; exemption from license tax.
Upon the filing in the office of the secretary of state of the agreement provided for in section two of this article, the secretary of state shall issue his certificate as provided in section seven, article one of this chapter, except that the secretary of state shall not require the payment of the license tax provided for in sections seventy-eight and seventy-nine, article twelve, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended. A corporation organized under the provisions of this article shall be exempt from such license tax.


WVC 31 - 14 - 5 §31-14-5. Corporate powers.
In furtherance of the purposes set out in section two of this article, and to aid in providing an effective program to alleviate conditions of substantial and persistent unemployment, underemployment, and lack of stable economic development, by taking effective steps in planning and financing economic redevelopment, utilizing such facilities and resources as are provided by the provisions of the federal "Area Redevelopment Act of 1961," as amended, the federal "Public Works and Economic Development Act of 1965," as amended, the federal "Appalachian Regional Development Act of 1965," as amended, the federal "Housing Act of 1968," as amended, the "West Virginia Housing Fund Development Act of 1968," as amended, and the "West Virginia Industrial Development Authority Act of 1961," as amended, and in addition to the powers conferred on business corporations by the provisions of this chapter, such corporation shall, subject to the restrictions and limitations herein contained, have the following powers:

(a) To enter into contracts and incur liabilities for any purposes of the corporation; except that the corporation shall not incur any secondary liability by way of guaranty or endorsement of the obligations of any person, firm, corporation, joint-stock company, association or trust, or in any other manner.

(b) To borrow money for any of the purposes of the corporation, including, but without implied limitation, the right to obtain loans under the provisions of "Title V of the Small Business Investment Act of 1958," as amended, or from any other similar governmental agency; to issue therefor its bonds, debentures, notes or other evidences of indebtedness, whether secured or unsecured, and to secure the same by mortgage, pledge, deed of trust or other lien on its property, franchises, rights and privileges of every kind and nature or any part thereof or interest therein, without securing stockholder or member approval.

(c) To make loans to any person, firm, corporation, joint- stock company, association or trust, and to establish and regulate the terms and conditions with respect to any such loans and the charges for interest and services connected therewith; however, no loans shall be made hereunder unless the loan applied for is not otherwise available through ordinary banking channels, private lenders, or other governmental agencies, on reasonable terms.

(d) To purchase, receive, hold, lease, or otherwise acquire and to sell, convey, transfer, lease, or otherwise dispose of real and personal property, together with such rights and privileges as may be incidental and appurtenant thereto and the use thereof, including, but not restricted to, any real or personal property acquired by the corporation from time to time in the satisfaction of debts or enforcement of obligations.

(e) To acquire, by gift or purchase, the good will, business, rights, real and personal property, both tangible and intangible, and other assets, or any part thereof, or interest therein, from any persons, firms, partnerships, corporations, joint-stock companies, associations or trusts, and to assume, undertake or pay the obligations, debts and liabilities of any such person, firm, partnership, corporation, joint-stock company, association or trust; to acquire improved or unimproved real estate for the purpose of constructing industrial plants or other business establishments thereon or for the purpose of disposing of such real estate to others for the construction of industrial plants or other business establishments; and to acquire, construct or reconstruct, alter, repair, maintain, operate, sell, convey, transfer, lease or otherwise dispose of industrial plants or business establishments.

(f) To acquire, subscribe for, own, hold, sell, assign, transfer, mortgage, pledge or otherwise dispose of the stock, shares, bonds, debentures, notes or other securities and evidences of interest in, or indebtedness of, any person, firm, corporation, joint-stock company, association or trust, and while the owner or holder thereof to exercise all the rights, powers and privileges of ownership, including the right to vote any such shares of stock.

(g) To mortgage, pledge, or otherwise encumber any property, right or thing of value, acquired pursuant to the powers contained in subdivisions (d), (e) or (f), as security for the payment of any part of the purchase price thereof.

(h) To cooperate with and avail itself of the facilities of the department of commerce and the office of commissioner of commerce of this state, the West Virginia industrial development authority, the federal area redevelopment administrator, and any similar federal and state governmental agencies and officers; and to cooperate with and assist, and otherwise encourage organizations in the various communities of the state in the promotion, assistance, and development of the business prosperity and economic welfare of such communities or of this state or any part thereof.

(i) To do all acts and things necessary or convenient to carry out the powers expressly granted in this article.


WVC 31 - 14 - 6 §31-14-6. Board of directors; officers.
The business and affairs of the corporation shall be managed and conducted by a board of directors, a president and treasurer, and such other officers and such agents as the corporation by its bylaws shall authorize. The board of directors shall be determined by the incorporators and, thereafter, by the stockholders and the members of the corporation, but the number of directors shall be a multiple of three.

The board of directors may exercise all the powers of the corporation except such as are conferred by law or by the bylaws of the corporation upon the stockholders or members and shall choose and appoint all the agents and officers of the corporation and fill all vacancies except vacancies in the office of director which shall be filled as hereinafter provided.

The board of directors shall be elected in the first instance by the incorporators and thereafter at each annual meeting of the corporation, or, if no annual meeting shall be held in any year at the time fixed by the bylaws, at a special meeting held in lieu thereof, the members of the corporation shall elect two thirds of the board of directors and the stockholders shall elect the remaining directors. The directors shall hold office until the next annual meeting of the corporation or special meeting held in lieu of the annual meeting after their election, and until their successors are elected and qualified unless sooner removed in accordance with the provisions of the bylaws.

Any vacancy in the office of a director elected by the members shall be filled by the directors elected by the members, and any vacancy in the office of a director elected by the stockholders shall be filled by the directors elected by the stockholders.

Directors and officers shall not be responsible for losses unless the same shall have been occasioned by the wilful misconduct of such directors and officers.


WVC 31 - 14 - 7 §31-14-7. Financial institutions as members of corporation; loans to corporation by members.
Any financial institution as defined in section one of this article is authorized to become a member of a corporation organized under the provisions of this article by making application to the board of directors on such form and in such manner as the board of directors may require and membership shall become effective upon acceptance of such application by said board. Membership in the corporation shall be for the duration of the corporation: Provided, That upon written notice given to the corporation one year in advance, a member may withdraw from membership in the corporation at the expiration date of such notice and shall not thereafter be obligated to make any loans to the corporation.

Each member of the corporation shall make loans to the corporation as and when called upon by it to do so on such terms and other conditions as shall be mutually approved from time to time by the board of directors of the corporation and such member, subject to the following conditions:

(1) All loan limits shall be established at the thousand- dollar amount nearest to the amount computed in accordance with the provisions of this section.

(2) No loans to the corporation shall be made if immediately thereafter, the total amount of the obligations of the corporation would exceed ten times the amount then paid in on the outstanding capital stock of the corporation. This limitation shall not apply with respect to that portion of the corporation's obligations incurred for the purpose of providing funds for making loans or for the acquisition of assets or investments to the extent that such loans, assets or investments are federally guaranteed, which for the purposes of this section seven means secured or covered by guaranties or by commitments or agreements to take over, or purchase, made by the United States of America, or by any department, bureau, agency, board, commission or establishment of the United States including any corporation, wholly owned, directly or indirectly, by the United States.

(3) The total amount outstanding on loans to the corporation made by any member at any one time, when added to the amount of the investment in the capital stock of the corporation then held by such member, shall not exceed:

(a) Twenty percent of the total amount then outstanding on loans to the corporation by all members, including in said total amount outstanding, amounts validly called for loans but not yet loaned.

(b) The following limit, to be adjusted annually on the basis of the audited balance sheet of such member at the close of its fiscal year, or, in the case of an insurance company, its annual statement to the commissioner of insurance: Two percent of the capital, surplus and undivided profits of commercial banks and trust companies; one percent of the total outstanding loans made by a building and loan association or industrial loan company; one percent of the capital and unassigned surplus of stock insurance companies, except fire insurance companies; one percent of the unassigned surplus of mutual insurance companies, except fire insurance companies; one tenth of one percent of the assets of fire insurance companies; and such limits as may be approved by the board of directors of the corporation for other financial institutions.

In computing the total amount outstanding on loans to the corporation made by a member at any time, there shall be excluded such portion of such loans as were obtained by the corporation for the purpose of providing funds for the making of loans or for the acquisition of assets or investments to the extent that such loans, assets or investments are federally guaranteed.

Subject to paragraph three (a) of this section, each call made by the corporation shall be prorated among the members of the corporation in substantially the same proportion that the adjusted loan limit of each member bears to the aggregate of the adjusted loan limit of all members. The adjusted loan limit of a member shall be the amount of such member's loan limit, reduced by the balance of outstanding loans by such member to the corporation and the investment in capital stock of the corporation held by such member at the time of such call.

All loans to the corporation by members shall be evidenced by bonds, debentures, notes or other evidences of indebtedness of the corporation, which shall be freely transferable at all times, and which shall bear interest at a rate of not less than one quarter of one percent in excess of the rate of interest determined by the board of directors to be the prime rate prevailing at the date of issuance thereof on unsecured commercial loans.


WVC 31 - 14 - 8 §31-14-8. Powers of stockholders and members; voting.
The stockholders and the members of the corporation shall have the power to determine the number of and to elect directors as provided heretofore, to make, amend and repeal bylaws, to amend the corporate charter in the manner hereinafter provided, and to exercise such other of the powers of the corporation as may be conferred on the stockholders and the members by the bylaws. As to all matters requiring action by the stockholders and the members of the corporation, said stockholders and said members shall vote separately thereon by classes, and, except as otherwise herein provided, such matters shall require the affirmative vote of a majority of the votes to which the stockholders present or represented at the meeting shall be entitled and the affirmative vote of a majority of the votes to which the members present or represented at the meeting shall be entitled. Each stockholder shall have one vote, in person or by proxy, for each share of capital stock held by him, and each member shall have one vote, in person or by proxy, except that any member having a loan limit of more than one thousand dollars shall have one additional vote, in person or by proxy, for each additional one thousand dollars which such member is authorized to have outstanding on loans to the corporation at any one time.


WVC 31 - 14 - 8 A §31-14-8a. Statewide corporation; economic regions created; loan committees.

1. Without limitation upon the power created by this article for the formation of business development corporations restricted in activity or in membership to areas or regions less than statewide, there may be created under the provision hereof a business development corporation coextensive, in the area to be served and from which membership may be drawn, with the state of West Virginia.

2. In the event of organization of such statewide business development corporation, and for the purpose of this section the state is hereby divided into ten economic regions as follows:

(1) Wheeling region: The counties of Hancock, Brooke, Ohio, Marshall, Wetzel and Tyler.

(2) Parkersburg region: The counties of Pleasants, Wood, Ritchie, Wirt, Calhoun, Roane and Jackson.

(3) Clarksburg region: The counties of Harrison, Doddridge, Taylor, Marion, Monongalia and Preston.

(4) Keyser region: The counties of Grant, Hardy, Mineral, Hampshire, Berkeley, Morgan and Jefferson.

(5) Elkins region: The counties of Barbour, Randolph, Pocahontas, Tucker and Pendleton.

(6) Weston region: The counties of Lewis, Gilmer, Braxton, Webster and Upshur.

(7) Lewisburg region: The counties of Greenbrier, Nicholas, Fayette, Summers and Monroe.

(8) Charleston region: The counties of Kanawha, Clay, Putnam, Mason and Boone.

(9) Huntington region: The counties of Cabell, Wayne, Lincoln, Mingo and Logan.

(10) Bluefield region: The counties of Raleigh, Wyoming, McDowell and Mercer.

3. Loan Committees: (a) There shall be a loan committee of such corporation for each of the ten economic regions as defined in this section. The members of the board of directors elected from such regions shall serve as members and chairman of each such loan committee for their respective regions. Each such loan committee shall have four additional members who shall be elected by the members of such corporation from such region and each of whom shall be of full age and a citizen of the United States and shall be a resident of such region or maintain a regular place of business therein.

In such elections, members of the corporation from each such region shall have one vote each, and each member having a loan limit, as defined by section seven of this article, of more than fifty thousand dollars, shall have one additional vote. The elected members of each such loan committee shall be elected at the annual meetings of such corporation and shall serve for terms of one year.

(b) If a vacancy occurs in the elected membership of any such loan committee, the remaining members of such committee shall elect a person from its economic region to fill such vacancy for the unexpired term. Upon the expiration of their terms the elected members of each such loan committee shall continue as such until their successors have been elected and have qualified.

(c) The board of directors of such corporation may establish an office for any such loan committee, within such committee's economic region.

(d) Every application to such corporation for a loan or financial assistance shall be made through the loan committee for the economic region wherein the applicant resides or maintains a regular place of business, and such application shall thereupon be reviewed by such loan committee and promptly transmitted by it to the board of directors for consideration, along with the recommendation of such loan committee with respect thereto: Provided, however, That where there is no member of such corporation from the economic region wherein the applicant resides or maintains a regular place of business, such applicant may make his application through the loan committee for any other economic region.


WVC 31 - 14 - 9 §31-14-9. Purchase of securities and stock by other corporations, fiduciaries and financial institutions.
Notwithstanding any other provision of law or any provision in their respective charters or trust indentures, any domestic corporation, including without implied limitation, any public utility company or insurance or casualty company; all foreign corporations licensed to do business in this state; all trusts or other fiduciaries and any financial institution as defined in section one of this article are hereby authorized and empowered to acquire, purchase, hold, sell, assign, transfer, mortgage, pledge or otherwise dispose of any bonds, notes, debentures, securities or other evidences of indebtedness created by, or the shares of the capital stock of any corporation organized under the provisions of this article and, while owners of such stock, to exercise all of the rights, powers and privileges of owners, including the right to vote said stock, all without the approval of any regulatory authority of the state; except, however, that the amount of the capital stock of such corporation which may be acquired by any member pursuant to the authority granted herein shall not exceed ten percent of the loan limit of such member. A financial institution which does not become a member of the corporation shall not be permitted to acquire any shares of the capital stock of the corporation. The amount of capital stock of such corporation which any member is authorized to acquire pursuant to the authority granted herein is in addition to the amount of capital stock in corporations which such member may otherwise be authorized to acquire.


WVC 31 - 14 - 10 §31-14-10. Creation of surplus from annual net earnings.
Each year the corporation shall set apart as earned surplus not less than ten percent of its net earnings for the preceding fiscal year until such surplus shall be equal in value to one half of the amount paid in on the capital stock then outstanding. Whenever the amount of surplus established herein shall become impaired, it shall be built up again to the required amount in the manner provided for its original accumulation. Net earnings and surplus shall be determined by the board of directors, after providing for such reserves as said directors deem desirable, and the determination of the directors, made in good faith, shall be conclusive on all persons.


WVC 31 - 14 - 11 §31-14-11. Corporation not to receive deposits; designation of depository bank.
No corporation organized under the provisions hereof shall at any time be authorized to receive money on deposit. The corporation shall not deposit any of its funds in any banking institution unless such institution has been designated as a depository by a vote of a majority of the directors present at an authorized meeting of the board of directors, exclusive of any director who is an officer or director of the depository so designated.


WVC 31 - 14 - 12 §31-14-12. Examination by and reports to banking commissioner.

Every corporation organized under the provisions of this article shall be subject to the examination and supervision of the commissioner of banking of this state, and shall make a report annually of its condition in such form and containing such information as the commissioner may require, who shall transmit a copy of such annual report to the insurance commissioner of the state.


WVC 31 - 14 - 13 §31-14-13. Exemption from payment of business and occupation taxes; treatment as banking institution for purposes of property taxation.
Every corporation organized under the provisions of this article shall be exempt from payment or collection of the business and occupation tax as provided for by chapter eleven, article thirteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, upon the business done by it. Upon certification by the corporation to the state tax commissioner that it is a corporation organized under and pursuant to the provisions of this article, such corporation shall not be required to file annual or other returns under the requirements of said chapter and article. Every business development corporation organized under the provisions of this article shall be taxed as a banking institution for the purposes of article three, chapter eleven of this code.


WVC 31 - 14 - 14 §31-14-14. Amendment of charter.
The charter of any corporation organized under the provisions of this article may be amended by the vote of the stockholders and the members of the corporation, voting separately by classes, and such amendments shall require approval by the affirmative vote of two thirds of the votes to which the stockholders shall be entitled and two thirds of the votes to which the members shall be entitled, except that no amendment which affects or limits the right of the commissioner of banking to examine the corporation or the obligation of the corporation to make annual reports to the commissioner as provided in section twelve shall be made without amendment of this article; and except, further, that no amendment to the charter of the corporation which increases the obligation of a member to make loans to the corporation, or makes any change in the principal amount, maturity date or in the security or credit position of any outstanding loan of a member to the corporation, or affects a member's right to withdraw from membership, or its voting rights as provided in sections seven and eight, shall be made without the consent of each member affected by such amendment.

Within thirty days after any meeting at which amendment of the charter has been adopted, certification thereof shall be made by the corporation to the secretary of state in the manner provided for by section twelve, article one of this chapter, whereupon the secretary of state shall issue his certificate as therein provided for.


WVC 31 - 14 - 15 §31-14-15. Applicability of general corporation law.
Every corporation organized under the provisions of this article shall be governed by the provisions of chapter thirty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, except insofar as the provisions of that chapter are in conflict with the provisions of this article, in which case the provisions of this article shall prevail.


WVC 31 - 14 - 16 §31-14-16. Severability of provisions.
The provisions of this article are severable, and if any of its provisions shall be held unconstitutional by any court of competent jurisdiction, the decision of such court with respect thereto shall not affect or impair any of the remaining provisions hereof.


WVC 31 - 15 - ARTICLE 15. WEST VIRGINIA ECONOMIC DEVELOPMENT AUTHORITY.


WVC 31 - 15 - 1 §31-15-1. Short title.

This article shall be known and may be cited as "The West Virginia Economic Development Authority Act."


WVC 31 - 15 - 2 §31-15-2. Legislative findings.
It is hereby determined and declared as a matter of legislative finding: (a) That unemployment exists in many areas of the state and may well come about, from time to time, in other areas of the state; (b) that in some areas of the state, unemployment is a serious problem and has been for so long a period of time that, without remedial measures, it may become so in other areas of the state; (c) that economic insecurity due to unemployment is a serious menace to the health, safety, morals and general welfare of the people of the entire state; (d) that widespread industry unemployment produces indigency which falls with crushing force upon all unemployed workers and ultimately upon the state in the form of welfare and unemployment compensation; (e) that the absence of employment and business opportunities for youth is a serious threat to the strength and permanence of their faith in our American political and economic institutions and the philosophy of freedom on which those institutions are based; (f) that lack of employment and business opportunities has resulted in thousands of workers and their families leaving the state to find such opportunities elsewhere and that this exodus has adversely affected the tax base of counties and municipalities resulting in an impairment of their financial ability to support education and other local government services; (g) that security against unemployment and the spread of indigency and economic stagnation can best be provided by the promotion, attraction, stimulation, rehabilitation and revitalization of commerce, tourism, industry and manufacturing; (h) that the present and future health, safety, morals, right to gainful employment and general welfare of the people of the state require as a public purpose the promotion and development of new and expanded coal and other energy production, industrial, commercial, tourist and manufacturing enterprises within this state; (i) that the means and measures being authorized for the financing of projects, including the insuring of loans or other debt issued for working capital or the refinancing of existing debt of an enterprise, are, as a matter of public policy, for the public purposes of the several counties, municipalities and the state; (j) that the device under which private community industrial development organizations in the state acquire or build industrial buildings or sites and equip the same with funds raised through popular subscription, loans or otherwise for lease and sale to new or expanding industries has proven effective in creating new employment and business opportunities locally, is in accord with the American tradition of community initiative and enterprise and requires and deserves encouragement and support from the state as a means toward alleviation of unemployment and economic distress; (k) that community industrial development corporations in the state have invested substantial funds in successful coal production, industrial projects and are experiencing difficulty in undertaking additional projects by reason of the partial inadequacy of their own funds potentially available from local subscription sources and by reason of limitations of local financial institutions in providing additional and sufficiently sizable first deed of trust or mortgage loans or letters of credit and other forms of credit enhancement; (l) that minority business ownership, especially among African-Americans in the area of Charleston, West Virginia, is proportionately less than minority business ownership nationwide and statewide, the unemployment rate for African-Americans recently has been about twice the unemployment rate for caucasians and significantly higher in some counties with a greater concentration of African-Americans and an urgent need exists to encourage African-Americans and minority business ownership and higher employment; (m) that an urgent need exists to stimulate a larger flow of private investment funds from banks, investment houses, insurance companies and other financial institutions into projects; (n) that by increasing the number of projects presenting attractive opportunities for private investment, a larger portion of the private capital available in this state for investment can be put to use for the general economic development of the state; (o) that the availability of financial assistance through the creation of an insurance fund will promote the economic development of the state; and that it is in the public interest, in order to address the needs aforesaid, that a state instrumentality be created as a public body corporate with full powers to accept grants, gifts and appropriations, to generate revenues, to borrow money and issue its bonds, notes, commercial paper, other debt instruments and security interests to the end that funds obtained thereby may be used to furnish money and credit to approved industrial development agencies or enterprises or to promote the establishment of new projects or to retain existing projects.


WVC 31 - 15 - 3 §31-15-3. Purposes of article.
The purposes of this article shall be to provide for the formation of a public economic development authority to promote, assist, encourage and, in conjunction with such banking corporations or institutions, trust companies, savings banks, building and loan associations, insurance companies or related corporations, partnerships, foundations, nonprofit organizations or other institutions, to develop and advance the business prosperity and economic welfare of the state of West Virginia; to encourage and assist in the location of new business and industry; to stimulate and assist in the expansion of all kinds of business activity which will tend to promote the business development and maintain the economic stability of this state, provide maximum opportunities for employment, encourage thrift and improve the standard of living of the citizens of this state; to cooperate and act in conjunction with other organizations, public or private, the objects of which are the promotion and advancement of industrial, commercial, tourist or manufacturing developments in this state; to borrow moneys and to issue its bonds, notes, commercial paper, other debt instruments and security interests as well as creating an insurance fund for credit enhancement purposes; to furnish money and credit or credit enhancement to approved industrial development agencies or enterprises in this state or for the promotion of new projects or to retain existing projects or to financially assist projects by insuring bonds, notes, loans and other instruments, including, but not limited to, the insuring of financing of working capital or the refinancing of existing debt of an enterprise, thereby establishing a source of credit and credit enhancement not otherwise available; to review state procurement policies and practices to assure that they meet federal and state requirements and that they effectively encourage meaningful participation of African-Americans and other minority persons in the process of competing for and awarding of state contracts for goods and services; to encourage the state to continue to support and expand small business incubator programs, including the program at institutions of higher education in the state; to encourage new and minority small business development; to undertake initiatives to encourage minority business ownership similar to those efforts used to encourage greater rates of business ownership among women; to assist community and economic development corporations to provide effective technical and business advisory services to minority-owned and -operated enterprises; to encourage industry, banks and other private businesses to hire African-Americans and other minority persons; to encourage governmental agencies and bodies and businesses to be more aggressive in establishing diversity-conscious practices as employers and for their operations; to enlist traditional and nontraditional lending institutions to be more creative and favorable to lending in minority communities and to minority persons, especially for business enterprises; to encourage small business start-up and expansion and provide funding to assist minority vendors to meet bid bonding requirements; and to encourage workforce investment boards to be accountable for educating poor and minority persons for jobs better than low-paying service jobs. These purposes are hereby declared to be public purposes for which public money may be spent and are purposes which will promote the health, safety, morals, right to gainful employment, business opportunities and general welfare of the inhabitants of the state.


WVC 31 - 15 - 3 A §31-15-3a. West Virginia industry and jobs development corporation abolished; establishment of economic development authority as successor to corporation.

The authority shall be the corporate successor to the West Virginia industry and jobs development corporation and is hereby vested with all right, title and interest of such corporation in and to all property, rights and choses in action heretofore owned by or vested in such corporation, including, but not limited to, its loan portfolio, and shall assume all debts, liabilities and other obligations, if any, of such corporation. As of the effective date of this legislation, such corporation shall cease to exist and all rights and interests heretofore vested in such corporation shall be vested in the authority.

The unexpended balance of funds authorized under section seventeen, article one, chapter five-c of this code available for use of the West Virginia industry and jobs development corporation as of the effective date of this legislation is hereby transferred to the authority.


WVC 31 - 15 - 4 §31-15-4. Definitions.
Unless the context clearly indicates otherwise, as used in this article:

(a) "Authority" means the West Virginia economic development authority;

(b) "Board" means the governing body of the authority;

(c) "Board of investments" means the board of investments established by article six, chapter twelve of this code;

(d) "Bonds" means bonds or other debt instruments of the authority issued under this article, whether the interest thereon is taxable or tax-exempt for federal income tax purposes;

(e) "Business plan" means a document detailing the sales, production and distribution plans of an enterprise, together with the expenditures necessary to carry out those plans (including budget and cash flow projections) on an annual basis, and an employment plan setting forth steps to be taken by the enterprise to retain jobs or reduce unemployment in this state;

(f) "Costs of establishing an industrial development project" means the cost of acquiring existing facilities, cost of machinery, cost of equipment and fixtures, the cost of construction ,including with out limitation, cost of improvements, repairs, and renovations, costs of all lands, water areas, property rights and easements, financing charges, interest prior to and during construction, cost of architectural, engineering, legal and financial or other consulting services, plans, site assessments, site remediation costs, specifications and surveys, estimates of costs and any other expenses necessary or incident to determining the feasibility or practicability of any project, together with such other costs and expenses as may be necessary or incidental to the financing and the construction or acquisition of the project and the placing of the same in operation;

(g) "County" means any county of this state;

(h) "Enterprise" means an entity which is or proposes to be engaged in this state in any business activity for profit. The entity may be owned, operated, controlled or under the management of a person, partnership, corporation, trust, community-based development organization or council, local commerce group, employee stock ownership plan, pension or profit-sharing plan, a group of participating employees who desire to own an entity which does not presently exist, or any similar entity or organization;

(i) "Federal agency" means the United States of America and any department, corporation, agency or instrumentality created, designated or established by the United States of America;

(j) "Financing plan" means a plan designed to meet the financing needs of an enterprise as reflected in the business plan; (k) "Fund" means the economic development fund provided for in section twenty-three of this article;

(l) "Government" means state and federal government, and any political subdivision, agency or instrumentality thereof, corporate or otherwise;

(m) "Industrial development agency" means any incorporated organization, foundation, association or agency to whose members or shareholders no profit inures, which has as its primary function the promotion, encouragement and development of industrial, commercial, manufacturing and tourist enterprises or projects in this state;

(n) "Insurance fund" means the insurance fund created in this article;

(o) "Loan" means an extension of financing by the authority to an industrial development agency or an enterprise, including, but not limited to, a loan, a lease or an installment sale;

(p) "Municipality" means any city or town in this state;

(q) "Notes" means any notes, including commercial paper, of the authority issued under this article whether the interest thereon is taxable or tax-exempt for federal income tax purposes;

(r) "Project" means a commercial or industrial undertaking and all of the assets reasonably and necessarily required therefor, all as determined by the authority, which determination shall be conclusive, and shall include, without limiting the generality of the foregoing, industrial projects and commercial projects as presently defined in section three, article two-c, chapter thirteen;

(s) "Revenues" means all fees, premiums, charges, moneys, profits, payment or principal of or interest on, loans and other investments, gifts, grants, appropriations, contributions and all other income derived or to be derived by the authority under this article; and

(t) "Security interest" means an interest in the loan portfolio of the authority which interest is secured by an underlying loan or loans and is evidenced by a note issued by the authority.


WVC 31 - 15 - 5 §31-15-5. West Virginia economic development authority; composition; appointment; terms; delegation of authority by chairman; voting; compensation and expenses.
(a) The West Virginia economic development authority is continued as a body corporate and politic, constituting a public corporation and government instrumentality.

(b) The authority shall be composed of a board of members consisting of a chairman, who shall be the governor, or his or her designated representative, the tax commissioner and seven members who shall be appointed by the governor, by and with the advice and consent of the Senate, and who shall be broadly representative of the geographic regions of the state. One member of the House of Delegates to be appointed by the speaker and one member of the Senate to be appointed by the president shall serve on the board in an advisory capacity as ex officio, nonvoting members. The board shall direct the exercise of all the powers given to the authority in this article. The governor shall also be the chief executive officer of the authority, and shall designate the treasurer and the secretary of the board.

(c) As appointments expire, each subsequent appointment shall be for a full four-year term. Any member whose term has expired shall serve until his or her successor has been duly appointed and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired term. Any member is eligible for reappointment. (d) The governor may, by written notice filed with the secretary of the authority, from time to time, delegate to any subordinate the power to represent him or her at any meeting of the authority. In that case, the subordinate has the same power and privileges as the governor and may vote on any question.

(e) Members of the authority are not entitled to compensation for services performed as members, but are entitled to reimbursement for all reasonable and necessary expenses actually incurred in the performance of their duties.

(f) A majority of the members constitutes a quorum for the purpose of conducting business. Except in the case of a loan or insurance application or unless the bylaws require a larger number, action may be taken by majority vote of the members present. Approval or rejection of a loan or insurance application shall be made by majority vote of the full membership of the board.

(g) The board shall manage the property and business of the authority and may prescribe, amend, adopt and repeal bylaws and rules and regulations governing the manner in which the business of the authority is conducted.

(h) The board shall, without regard to the provisions of civil service laws applicable to officers and employees of the state of West Virginia, appoint any necessary managers, assistant managers, officers, employees, attorneys and agents for the transaction of its business, fix their compensation, define their duties and provide a system of organization to fix responsibility and promote efficiency. Any appointee of the board may be removed at the discretion of the board. The authority may reimburse any state spending unit for any special expense actually incurred in providing any service or the use of any facility to the authority.

(i) In cases of any vacancy in the office of a voting member, the vacancy shall be filled by the governor. Any member appointed to fill a vacancy in the board occurring prior to the expiration of the term for which his or her predecessor was appointed shall be appointed for the remainder of the term.

(j) The governor may remove a member in the case of incompetence, neglect of duty, gross immorality or malfeasance in office, and may declare the member's office vacant and appoint a person for the vacancy as provided in other cases of vacancy.

(k) The secretary of the board shall keep a record of the proceedings of the board and perform any other duties determined appropriate by the board. The treasurer shall be custodian of all funds of the authority and shall be bonded in the amount designated by other members of the board.


WVC 31 - 15 - 6 §31-15-6. General powers of authority.
The authority, as a public corporation and governmental instrumentality exercising public powers of the state, shall have and may exercise all powers necessary or appropriate to carry out the purposes of this article, including the power:

(a) To cooperate with industrial development agencies in efforts to promote the expansion of industrial, commercial, manufacturing and tourist activity in this state.

(b) To determine, upon the proper application of an industrial development agency or an enterprise, whether the declared public purposes of this article have been or will be accomplished by the establishment by such agency or enterprise of a project in this state.

(c) To conduct examinations and investigations and to hear testimony and take proof, under oath or affirmation, at public or private hearings, on any matter relevant to this article and necessary for information on the establishment of any project.

(d) To issue subpoenas requiring the attendance of witnesses and the production of books and papers relevant to any hearing before such authority or one or more members appointed by it to conduct any hearing.

(e) To apply to the circuit court having venue of such offense to have punished for contempt any witness who refuses to obey a subpoena, to be sworn or affirmed or to testify or who commits any contempt after being summoned to appear.

(f) To authorize any member of the authority to conduct hearings, administer oaths, take affidavits and issue subpoenas.

(g) To financially assist projects by insuring obligations in the manner provided in this article through the use of the insurance fund.

(h) To finance any projects by making loans to industrial development agencies or enterprises upon such terms as the authority shall deem appropriate: Provided, That nothing contained in this subsection (h) or under any other provision in this article shall be construed as permitting the authority to make loans for working capital: Provided, however, That nothing contained in this article shall be construed as prohibiting the authority from insuring loans for working capital made to industrial development agencies or to enterprises by financial institutions: Provided further, That nothing contained in this subsection or any other provision of this article shall be construed as permitting the authority to refinance existing debt except when such refinancing will result in the expansion of the enterprise whose debt is to be refinanced or in the creation of new jobs.

(i) To issue revenue bonds or notes to fulfill the purposes of this article, and to secure the payment of such bonds or notes, all as hereinafter provided.

(j) To issue and deliver revenue bonds or notes in exchange for a project.

(k) To borrow money for its purposes and issue bonds or notes for the money and provide for the rights of the holders of the bonds or notes or other negotiable instruments, to secure the bonds or notes by a deed of trust on, or an assignment or pledge of, any or all of its property and property of the project, including any part of the security for loans, and the authority may issue and sell its bonds and notes, by public or private sale, in such principal amounts as it shall deem necessary to provide funds for any purposes under this article, including the making of loans for the purposes set forth in this article.

(l) To maintain such sinking funds and reserves as the board shall determine appropriate for the purposes of meeting future monetary obligations and needs of the authority.

(m) To sue and be sued, implead and be impleaded, and complain and defend in any court.

(n) To adopt, use and alter at will a corporate seal.

(o) To make, amend, repeal and adopt both bylaws and rules and regulations for the management and regulation of its affairs.

(p) To appoint officers, agents and employees and to contract for and engage the services of consultants.

(q) To make contracts of every kind and nature to execute all instruments necessary or convenient for carrying on its business.

(r) To accept grants and loans from and enter into contracts and other transactions with any federal agency.

(s) To take title by conveyance or foreclosure to any project where acquisition is necessary to protect any loan previously made by the authority and to sell, by public or private sale, transfer, lease or convey such project to any enterprise.

(t) To participate in any reorganization proceeding pending pursuant to the United States Code (being the act of Congress establishing a uniform system of bankruptcy throughout the United States, as amended) or in any receivership proceeding in a state or federal court for the reorganization or liquidation of an enterprise. The authority may file its claim against any such enterprise in any of the foregoing proceedings, vote upon any questions pending therein which requires the approval of the creditors participating in any reorganization proceeding or receivership, exchange any evidence of such indebtedness for any property, security or evidence of indebtedness offered as a part of the reorganization of such enterprise or of any other entity formed to acquire the assets thereof and may compromise or reduce the amount of any indebtedness owing to it as a part of any such reorganization.

(u) To acquire, construct, maintain, improve, repair, replace and operate projects within this state, as well as streets, roads, alleys, sidewalks, crosswalks and other means of ingress and egress to and from projects located within this state.

(v) To acquire, construct, maintain, improve, repair and replace and operate pipelines, electric transmission lines, waterlines, sewer lines, electric power substations, waterworks systems, sewage treatment and disposal facilities and any combinations thereof for the use and benefit of any enterprise located within this state.

(w) To acquire watersheds, water and riparian rights, rights-of-way, easements, licenses and any and all other property, property rights and appurtenances for the use and benefit of any enterprise located within this state.

(x) To acquire, by purchase, lease, donation or eminent domain, any real or personal property, or any right or interest therein, as may be necessary or convenient to carry out the purposes of the authority. Title to all property, property rights and interests acquired by the authority shall be taken in the name of the authority.

(y) To issue renewal notes, or security interests, to issue bonds to pay notes or security interests and, whenever it deems refunding expedient, to refund any bonds or notes by the issuance of new bonds or notes, whether the bonds or notes to be refunded have or have not matured and whether or not the authority originally issued the bonds or notes to be refunded.

(z) To apply the proceeds from the sale of renewal notes, security interests or refunding bonds or notes to the purchase, redemption or payment of the notes, security interests or bonds or notes to be refunded.

(aa) To accept gifts or grants of property, funds, security interests, money, materials, labor, supplies or services from the United States of America or from any governmental unit or any person, firm or corporation, and to carry out the terms or provisions of, or make agreements with respect to, or pledge, any gifts or grants, and to do any and all things necessary, useful, desirable or convenient in connection with the procuring, acceptance or disposition of gifts or grants.

(bb) To the extent permitted under its contracts with the holders of bonds, security interests or notes of the authority, to consent to any modification of the rate of interest, time of payment of any installment of principal or interest, security or any other term of any bond, security interests, note or contract or agreement of any kind to which the authority is a party.

(cc) To sell loans, security interests or other obligations in the loan portfolio of the authority. Such security interests shall be evidenced by instruments issued by the authority. Proceeds from the sale of loans, security interests, or other obligations may be used in the same manner and for the same purposes as bond and note revenues.

(dd) To procure insurance against any losses in connection with its property, operations or assets in such amounts and from such insurers as the authority deems desirable.

(ee) To sell, license, lease, mortgage, assign, pledge or donate its property, both real and personal, or any right or interest therein to another or authorize the possession, occupancy or use of such property or any right or interest therein by another, in such manner and upon such terms as it deems appropriate.

(ff) To participate with the state and federal agencies in efforts to promote the expansion of commercial and industrial development in this state.

(gg) To finance, organize, conduct, sponsor, participate and assist in the conduct of special institutes, conferences, demonstrations and studies relating to the stimulation and formation of business, industry and trade endeavors.

(hh) To conduct, finance and participate in technological, business, financial and other studies related to business and economic development.

(ii) To conduct, sponsor, finance, participate and assist in the preparation of business plans, financing plans and other proposals of new or established businesses suitable for support by the authority.

(jj) To prepare, publish and distribute, with or without charge as the authority may determine, such technical studies, reports, bulletins and other materials as it deems appropriate, subject only to the maintenance and respect for confidentiality of client proprietary information.

(kk) To exercise such other and additional powers as may be necessary or appropriate for the exercise of the powers herein conferred.

(ll) To exercise all of the powers which a corporation may lawfully exercise under the laws of this state.

(mm) To contract for the provision of legal services by private counsel, and notwithstanding the provisions of article three, chapter five, such counsel may, but is not limited to, represent the authority in court, negotiate contracts and other agreements on behalf of the authority, render advice to the authority on any matter relating thereto, prepare contracts and other agreements, and provide such other legal services as may be requested by the authority.

(nn) To develop, maintain, operate and apply for the establishment of foreign trade zones pursuant to and in accordance with all applicable provisions of federal law.

(oo) To exercise the powers and responsibilities previously vested in the state building commission by section eleven-a, article six, chapter five including, but not limited to, the authority to refund bonds issued in accordance with that section.


WVC 31 - 15 - 6 A §31-15-6a. Special power of authority to transfer funds; limitations; fund created; use of funds to provide customized job training program by governor's office of economic and community development.

(a) The Legislature finds and declares that in order to attract the new business and industry to this state and retain the business and industry in this state which provide the citizens of this state with economic security; to advance the business prosperity and economic welfare of this state and to assure a pool of qualified employees it is necessary that a training program exist to provide both unemployed and under-employed workers of this state a means to acquire or improve their working skills so as to insure availability of qualified employees that is fundamental for business and industry to prosper.

(b) The authority is hereby empowered to transfer to the special revenue fund herein created, a sum of money not to exceed two million five hundred thousand dollars, to be used by the governors office of community development to establish, administer and operate a customized job training program. The authority may only make transfers to said fund between the time period commencing with the effective date of this section and ending the last day of June, one thousand nine hundred ninety-one. Such transfers may only be made from repayments of principal amounts from loans made by the authority where such repayments of principal are available for such use and are not otherwise restricted. Transfers into the special revenue fund created above may be made at such times and in such amounts as the authority, in its discretion, deems reasonable: Provided, That the total amount of all such transfers may not exceed two million five hundred thousand dollars in the aggregate.

(c) There is hereby created in the state treasury a special revenue fund entitled the "Governor's Office of Community and Industrial Development Customized Job Training Program Fund." This fund shall consist of moneys paid into such fund in accordance with this section. Moneys in said fund shall be used by the governors office of community and industrial development to establish and administer a customized job training program to meet the needs of expanding business and industry or to create new jobs, and the governor's office of community and industrial development may make such withdrawals from this fund as required to establish and administer said customized job training program.
WVC 31 - 15 - 6 B §31-15-6b. Special power of authority to issue bonds or notes to repay and refinance capital investment of investment management board in regional jail and correctional facility authority; authorizing issuance of bonds to finance regional jail facilities, correctional facilities, juvenile facilities and state police facilities.
(a) The Legislature finds and declares that the supreme court of appeals has determined and ordered that the constitution of this state imposes a duty on behalf of the state to make significant improvements in the jail and correctional facility system, including the duty to make capital improvements to facilities and to pay for the cost of those improvements; that many of the existing facilities used by the West Virginia state police, including those facilities identified in section ten, article two, chapter fifteen of this code, are in need of significant capital improvement or replacement, and that in some cases the acquisition and construction of additional state police facilities is needed; that the acquisition and construction of the capital improvements identified in this subsection require that the cost of the facilities be financed over time; that section fifty-one, article six of the constitution prohibits the Legislature amending the budget bill so as to create a deficit; that the enacting of new taxes, or the diversion of revenues from other essential departments and functions of government, in order to support capital improvements in regional jail facilities, correctional facilities, juvenile facilities and state police facilities is not in the interests of the people of the state represented in the Legislature, and is specifically rejected by the Legislature in its exercise of its legitimate constitutional powers; that there have been previously funded certain regional jail facilities and correctional facilities through funds available for investment through the West Virginia investment management board, the proceeds of which have and are being used by the regional jail and correctional facility authority to finance the cost of capital improvements to regional jail facilities and correctional facilities, the repayment of such investment being made from transfers to the regional jail and correctional facility investment fund established under section twenty-one, article six, chapter twelve of this code, from funds on deposit in the insurance tax fund established under subsection (b), section fourteen, article three, chapter thirty-three of this code, such transfers undertaken in the manner set forth in subsection (c), section fourteen, article three, chapter thirty-three of this code; that the rate of return being paid under subsection (b), section twenty-one, article six, chapter twelve for the investment is subject to annual adjustment and theretofore subject to the volatility of the financial markets and it is anticipated that the rate of return paid on such investment will be in excess of the interest rate that would be payable with respect to bonds issued under this article to repay the investment, to make the capital improvements identified in this subsection, and to acquire or construct certain regional jail facilities, correctional facilities, juvenile facilities and state police facilities.

(b) To provide for (1) the repayment of all or a portion of the investment, (2) the financing of capital improvements to regional jail facilities, correctional facilities, juvenile facilities and state police facilities, (3) the financing of the acquisition of certain existing regional jail facilities, correctional facilities, juvenile facilities and state police facilities, (4) the financing of the acquisition and construction of new regional jail facilities, correctional facilities, juvenile facilities and state police facilities, and (5) the payment of the costs of issuance of the bonds, bonds of the authority may be issued in accordance with the provisions of this article. Any bonds issued pursuant to the provisions of this section shall mature at a time or times not exceeding twenty-five years from their respective dates. In no event may the outstanding principal amount of the bonds exceed a total amount that would require annual debt service payments in excess of sixteen million dollars.

(c) (1) The proceeds from the sale of the bonds shall be allocated and expended for the following purposes in the following order of priority:

(A) For the costs of issuance of the bonds;

(B) For payment of the return of the investment made pursuant to section twenty-one, article six, chapter twelve of this code;

(C) For the costs of the projects included in the letter submitted by the regional jail and correctional facility authority to the joint committee on government and finance dated the first day of April, two thousand one, pursuant to the amendment and reenactment of section twenty-one, article six, chapter twelve of this code in chapter sixty-six, acts of the Legislature, regular session, two thousand one: Provided, That the letter shall not be construed to prioritize any project or projects which are included in the letter;

(D) For the costs of completion of any other capital improvement projects for regional jail facilities, correctional facilities or juvenile facilities that may be determined by the regional jail and correctional facility authority, subject to the provisions of subdivision (2) of this subsection. Prior to the expenditure of any funds for these additional projects, the regional jail and correctional facility authority shall certify to the joint committee on government and finance a separate list of the additional projects to be funded from the bond proceeds. This certified list may not thereafter be altered or amended other than by legislative enactment; and

(E) For the costs of capital improvements to or the acquisition or construction of state police facilities: Provided, That no proceeds of the bonds may be expended for a state police facility purpose unless and until the Legislature by concurrent resolution has approved the purpose and amount of each project for which proceeds from the issuance of the bonds have been allocated under this subsection.

(2) From the balance of the proceeds of the bonds remaining after meeting the requirements of paragraphs (A) and (B), subdivision (1) of this subsection, an amount not less than eighty million dollars shall be allocated for expenditure for the purposes set forth in paragraphs (C) and (D), subdivision (1) of this subsection. In the event the regional jail and correctional facility authority determines that an amount less than eighty million dollars is necessary for those purposes, the difference may be allocated for expenditure for the purposes and subject to the conditions set forth in paragraph (E), subdivision (1) of this subsection.

(d) The economic development authority may lease facilities acquired or constructed pursuant to the provisions of this section to the department of administration.

(e) For purposes of this section, the terms "regional jail facilities", "correctional facilities" and "juvenile facilities" have the meanings set forth in section two, article twenty of this chapter.


WVC 31 - 15 - 6 C §31-15-6c. Neighborhood Housing and Economic Development Stabilization Program; authority to contract with Housing Development Fund; funding.
(a) It is hereby determined and declared, as a matter of legislative finding:

(1) Local housing initiatives offer a unique opportunity to revitalize and stimulate economic development in low income neighborhoods with high minority populations, which typically have high levels of unemployment and include a large number of distressed properties.

(2) Local housing initiatives may include, but are not limited to, demolition, rehabilitation, new construction, land purchases for development, affordable mortgage initiatives and related job training and community service activities.

(3) In order to promote a positive long-term economic impact on the community, an effective local housing initiative should include a job training component that is designed to provide additional educational and vocational job opportunities and foster the development of marketable skills among the people living within the targeted neighborhoods served by the program.

(4) If done as a part of a focused and coordinated effort, the rehabilitation or replacement of deteriorating residential properties or structures would enhance the value of other properties in the community and improve the overall quality of their neighborhood.

(5) A successful neighborhood revitalization and recovery program can attract new businesses and spur additional investment in the community.

(6) Using locally based or community based not-for-profit entities to spearhead local housing initiatives encourages the development of additional resources, leadership and administrative skills at a local level which, once in place, would continue to focus on the needs and revitalization of the targeted community, after the initial project is complete.

(7) It is reasonable and appropriate to establish a funding mechanism for selected qualifying entities to implement projects that are designed to revitalize and stimulate economic development in low income neighborhoods with relatively high minority populations.

(8) The effectiveness of the initial programs can best be assessed if significant funding is awarded to a limited number of qualifying programs serving targeted communities.

(9) The state would benefit from the development of a working model for stimulating economic development and neighborhood revitalization through local housing initiatives, so that it may be replicated in other parts of the state which have similar demographic and economic conditions.

(10) Substantial federal funds have been earmarked for housing stabilization and stimulating economic recovery, including but not limited to, housing rehabilitation, construction, upgrades and weatherization programs.

(b) There is hereby established within the Economic Development Authority the Neighborhood Housing and Economic Development Stabilization Program. The purpose of the program is to provide loans, grants and forgivable loans to support and carry out local economic development initiatives and locally designed housing initiatives in minority neighborhoods with low-income demographics in this state. Housing initiatives funded by this program may include, but are not limited to, demolition, rehabilitation, new construction, land purchases for development, affordable mortgage initiatives and related job training and community service activities.

(c) To accomplish these objectives and to administer and distribute the funds provided by the Legislature for this purpose, the Economic Development Authority is authorized to contract with the Housing Development Fund to administer the Neighborhood Housing and Economic Stabilization Program.

(d) Upon the effective date of this section, the Economic Development Authority shall, upon appropriation by the Legislature, transfer $2.4 million from the Economic Development Project Bridge Loan Fund established in section eighteen-a, article twenty-two, chapter twenty-nine of this code to the Housing Development Fund. The fund will administer the program and distribute the funds to locally based West Virginia not-for-profit entities to operate local economic development initiatives and locally designed housing initiatives as described in this section. The project's funds shall be awarded through a statewide request for proposal solicitation issued by the Housing Development Fund, after requests for proposals have been reviewed and accepted by the authority.

(e) In awarding the funds, the Housing Development Fund shall give priority to proposals received from local not-for-profit organizations for low-income housing initiatives which include a job training component and promote the employment or utilization of people and businesses who reside within the targeted neighborhoods. A recipient organization must have written established guidelines to promote investment from within and outside the community where the neighborhood is located.


WVC 31 - 15 - 7 §31-15-7. Loans to industrial development agencies or enterprises for projects.

(a) When it has determined upon application of an industrial development agency or an enterprise that the establishment or acquisition of a particular project has accomplished or will accomplish the public purposes of this article, the authority may contract to loan such agency or enterprise up to one hundred percent of the estimated cost of such project from any or all of the following sources:

(1) The proceeds of bonds or notes issued by the authority pursuant to this article;

(2) Moneys in the fund available to make loans; or

(3) The investment in such loans by the board of investments through the consolidated fund of the state as provided in this article.

(b) Loans made under subsection (a) of this section shall be subject to the following conditions:

(1) If the authority is providing less than one hundred percent financing for the project, the authority shall determine that other sources of funds will be available to complete the project;

(2) The loan shall contain such terms and conditions as the authority deems appropriate, which terms and conditions shall be set forth in a resolution adopted by the board in accordance with the provisions of section ten of this article;

(3) The authority may, in its discretion, include within the terms of a loan minimum project operating periods, liquidated damage provisions for cessation of operations prior to the end of the loan period, loan acceleration provisions, project equipment purchase options in the event of early closure and other provisions to protect the jobs intended to be created by the project;

(4) The industrial development agency or enterprise shall pay such loan fees as may be prescribed by the authority from time to time pursuant to the provisions of this article.

Money loaned by the authority to an industrial development agency or enterprise pursuant to subdivisions (2) and (3), subsection (a) of this section seven shall be withdrawn from the fund and paid over to the agency or enterprise in such manner as shall be determined by the authority, and the authority shall deposit all payments of interest on such loans and the principal thereof in the fund.


WVC 31 - 15 - 7 A §31-15-7a.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 B §31-15-7b.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 C §31-15-7c.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 D §31-15-7d.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 E §31-15-7e.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 F §31-15-7f.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 G §31-15-7g.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 H §31-15-7h.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 I §31-15-7i.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 J §31-15-7j.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 K §31-15-7k.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 L §31-15-7l.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 M §31-15-7m.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 N §31-15-7n.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 O §31-15-7o.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 P §31-15-7p.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 Q §31-15-7q.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 7 R §31-15-7r.

Repealed.

Acts, 1989 Reg. Sess., Ch. 54.


WVC 31 - 15 - 8 §31-15-8. Insurance fund.

(a) There is hereby created an insurance fund which shall be a continuing, nonlapsing, revolving fund that consists of:

(1) Moneys appropriated by the state to the insurance fund;

(2) Premiums, fees, and any other amounts received by the authority with respect to financial assistance provided by the authority from the insurance fund;

(3) Upon the satisfaction of any indebtedness or other obligation owed on any property held or acquired by the authority, such proceeds as designated by the authority from the sale, lease, or other disposition of such property;

(4) Income from investments made from moneys in the insurance fund; and

(5) Any other moneys transferred to the insurance fund or made available to it for the purposes described under this section, under this article or pursuant to any other provisions of this code.

Subject to the provisions of any outstanding insurance agreements entered into by the authority under this section, the authority may enter into covenants or agreements with respect to the insurance fund, and establish accounts within the insurance fund which may be used to implement the purposes of this article. If the authority elects to establish separate accounts within the insurance fund, the authority may allocate its revenues and receipts among the respective accounts in any manner the authority considers appropriate.

If the authority at any time finds that more money is needed to keep the reserves of the insurance fund at an adequate level, the authority, with the consent of the chairman, shall send a written request to the Legislature for additional funds.

(b) The insurance fund shall be used for the following purposes by the authority to financially assist projects so long as such financial assistance will, as determined by the authority, fulfill the public purposes of this article:

(1) To insure the payment or repayment of all or any part of the principal of, redemption or prepayment premiums or penalties on, and interest on bonds or notes whether issued under the provisions of this article or under the Industrial Development and Commercial Development Bond Act, the West Virginia Hospital Finance Authority Act or, with respect to health care facilities only, article thirty-three, chapter eight of this code;

(2) To insure the payment or repayment of all or any part of the principal of, redemption or prepayment premiums or penalties on, and interest on any instrument executed, obtained, or delivered in connection with the issuance and sale of bonds or notes whether under the provisions of this article or under the Industrial Development and Commercial Development Bond Act, the West Virginia Hospital Finance Authority Act or, with respect to health care facilities only, article thirty-three, chapter eight of this code;

(3) To insure the payment or repayment of all or any part of the principal of, prepayment premiums or penalties on, and interest on any form of debt instrument entered into by an enterprise, public body or authority of the state with a financial institution, including, but not limited to, banks, insurance companies and other institutions in the business of lending money, which debt instruments shall include, but not be limited to, instruments relating to loans for working capital and to the refinancing of existing debt: Provided, That nothing contained in this subsection or any other provision of this article shall be construed as permitting the authority to insure the refinancing of existing debt except when such insurance will result in the expansion of the enterprise whose debt is to be refinanced or in the creation of new jobs;

(4) To pay or insure the payment of any fees or premiums necessary to obtain insurance, guarantees, letters of credit or other credit support from any person or financial institution in connection with financial assistance provided by the authority under this section; and

(5) To pay any and all expenses of the authority, including, but not limited to:

(i) Any and all expenses for administrative, legal, actuarial, and other services related to the operation of the insurance fund; and

(ii) All costs, charges, fees, and expenses of the authority related to the authorizing, preparing, printing, selling, issuing, and insuring of bonds or notes (including, by way of example, bonds or notes, the proceeds of which are used to refund outstanding bonds or notes) and the funding of reserves.

(c) The total aggregate amount of insurance from the insurance fund with respect to the insured portions of principal of bonds or notes or other instruments may not exceed at any time an amount equal to five times the balance in the insurance fund.

(d) The authority may, in its sole and absolute discretion, set the premiums and fees to be paid to it for providing financial assistance under this section. The premiums and fees set by the authority shall be payable in the amounts, at the time, and in the manner that the authority, in its sole and absolute discretion, requires. The premiums and fees need not be uniform among transactions, and may vary in amount: (1) among transactions, and (2) at different stages during the terms of transactions.

(e) The authority may, in its sole and absolute discretion, require the security it believes sufficient in connection with its insuring of the payment or repayment of any bonds, notes, debt or other instruments described in subdivisions (1), 2), (3) and (4), subsection (b) of this section.

(f) The authority may itself approve the form of any insurance agreement entered into under this section or may authorize the chairman or his designee to approve the form of any such agreement. Any payment by the authority under an agreement entered into by the authority under this section shall be made at the time and in the manner that the authority, in its sole and absolute discretion, determines.

(g) The obligations of the authority under any insurance agreement entered into pursuant to this article shall not constitute a debt or a pledge of the faith and credit or taxing powers of this state or of any county, municipality or any political subdivision of this state for the payment of any amount due thereunder or pursuant thereto, but the obligations evidenced by such insurance agreement shall be payable solely from the funds pledged for their payment. All such insurance agreements shall contain on the face thereof a statement to the effect that such agreements and the obligations evidenced thereby are not debts of the state or any county, municipality or political subdivision thereof but are payable solely from funds pledged for their payment.


WVC 31 - 15 - 8 A §31-15-8a.

Repealed.

Acts, 1989, Ch. 54.


WVC 31 - 15 - 9 §31-15-9. Bonds and notes issued pursuant to this article.

(a) The authority may issue its bonds or notes to fulfill the purposes set forth in this article.

(b) The authority may issue renewal notes to pay notes and, if it considers refunding expedient, may refund or refund in advance, bonds or notes, whether or not originally issued by the authority, by the issuance of new bonds or notes.

(c) Except as may otherwise be expressly provided by the authority, every issue of its notes or bonds shall be special obligations of the authority, payable solely from the property, revenues or other sources of or available to the authority pledged therefor.

(d) The bonds and the notes shall be authorized by the authority pursuant to section ten of this article, and shall be secured, be in such denominations, may bear interest at such rate or rates, be in such form, either coupon or registered, carry such registration privileges, be payable in such medium of payment and at such place or places and such time or times and be subject to such terms of redemption as the authority may authorize. The bonds and notes of the authority may be sold by the authority, at public or private sale, at or not less than the price the authority determines. The bonds and notes shall be executed by manual or facsimile signature by the chairman of the board, and the official seal of the authority or a facsimile thereof shall be affixed to or printed on each bond and note and attested, manually or by facsimile signature, by the secretary of the board, and any coupons attached to any bond or note shall bear the manual or facsimile signature of the chairman of the board. In case any officer whose signature, or a facsimile of whose signature, appears on any bonds, notes or coupons ceases to be such officer before delivery of such bonds or notes, such signature or facsimile is nevertheless sufficient for all purposes the same as if he had remained in office until such delivery; and, in case the seal of the authority has been changed after a facsimile has been imprinted on such bonds or notes, such facsimile seal will continue to be sufficient for all purposes.


WVC 31 - 15 - 10 §31-15-10. Approval by authority.

(a) To implement the powers and authority conferred upon it by this article, the board of the authority may adopt a resolution pursuant to which it shall:

(1) specify and describe the project;

(2) generally describe the public purpose to be served and the financing transaction to be accomplished under this article;

(3) specify the maximum principal amount of any bonds or notes to be issued by the authority, the maximum principal amount of the loan, and the amount of insurance, if any, to be provided by the authority; and

(4) impose any terms or conditions on the issuance of notes or bonds, the making of a loan or the provision of insurance that the authority deems appropriate.

(b) The board of the authority may, by resolution, or may delegate to the chairman or other designee the authority to, specify, prescribe, determine, provide for and approve such matters, details, forms, documents or procedures as the authority deems appropriate to the making of a loan, the authorization, sale, issuance, security, delivery, or payment of or for bonds or notes, or the authority's insurance of bonds, notes, loans or other instruments, including, without limitation, the rate or rates of interest and any security for the loan or insurance.

(c) The resolution adopted pursuant to this section is administrative in nature, is not subject to procedures required for legislative acts, and is not subject to referendum.

(d) In any suit, action, or proceeding involving the validity or enforceability of any bonds or notes issued, loan made, or insurance extended by the authority under this article or any security therefor, any finding by the authority as to the public purpose of any actions taken under this article and the appropriateness of those actions to serve the public purpose shall be conclusive.

(e) Any resolution authorizing the issuance of bonds or notes shall provide that such bonds or notes shall contain a recital that they are issued pursuant to this article, which recital shall be conclusive evidence of their validity and of the regularity of their issuance.


WVC 31 - 15 - 11 §31-15-11. Trustee for bondholders; contents of trust agreement; pledge or assignment of revenues.

For bonds or notes issued pursuant to the provisions of this article, in the discretion of the authority, any bonds or notes, including refunding bonds or notes issued by the authority, may be secured by a trust agreement between the authority and a corporate trustee, which trustee may be any bank or trust company within or without the state. Any such trust agreement may contain such binding covenants with the holders of such bonds or notes as to any matter or provisions as are deemed necessary or advisable to the authority to enhance the marketability and security of such bonds or notes and may also contain such other provisions with respect thereto as the authority may authorize and approve. Any resolution adopted by the authority or any trust agreement may contain a pledge or assignment of revenues to be received in connection with the financing.


WVC 31 - 15 - 12 §31-15-12. Use of funds by authority; restrictions thereon relating to projects.

All moneys, properties and assets acquired by the authority, whether as proceeds from the sale of bonds or notes or as revenues or otherwise, shall be held by it in trust for the purposes of carrying out its powers and duties and shall be used and reused in accordance with the purposes and provisions of this article. Such moneys shall at no time be commingled with other public funds. Such moneys, except as otherwise provided in any resolution authorizing the issuance of bonds or notes or in any trust agreement securing the same, or except when invested pursuant to this article, shall be kept in appropriate depositories and secured as provided and required by law. The resolution authorizing the issuance of such bonds or notes of any issue or the trust agreement securing such bonds or notes shall provide that any officer to whom, or any banking institution or trust company to which, such moneys are paid, shall act as trustee of such moneys and hold and apply them for the purposes hereof, subject to the conditions this article and such resolution or trust agreement provide.


WVC 31 - 15 - 12 A §31-15-12a. Horseshoe pitcher's hall of fame.

Not later than the first day of July, one thousand nine hundred ninety-two, the West Virginia economic development authority may enter into negotiations with the county commission of Marion County to develop, organize, construct and manage a national horseshoe pitcher's hall of fame shrine and multipurpose building project.

The authority may provide funds through a loan, staff support and technical assistance to the Marion County commission to target the project for completion within five years: Provided, That the Marion County commission has the commitment, support and assistance of the National Horseshoe Pitcher's Association to locate the hall of fame in Marion County.


WVC 31 - 15 - 13 §31-15-13. Refunding bonds or notes.

Any bonds or notes issued by the authority or any other public body or authority of the state pursuant to the provisions of this article or any other provision of this code and at any time outstanding may at any time and from time to time be refunded by the authority by the issuance of its refunding bonds or notes in such amount as it may deem necessary to refund the principal of the bonds or notes so to be refunded, together with any unpaid interest thereon; to provide additional funds for the purposes of the authority; and to pay any premiums and commissions necessary to be paid in connection therewith. Any such refunding may be effected whether the bonds or notes to be refunded shall have then matured or shall thereafter mature, either by sale of the refunding bonds or notes and the application of the proceeds thereof for the redemption of the bonds or notes to be refunded thereby or by exchange of the refunding bonds or notes for the bonds or notes to be refunded thereby. Such refunding bonds or notes shall be issued in conformance with the provisions of sections nine and ten of this article.


WVC 31 - 15 - 14 §31-15-14. Obligations of authority undertaken pursuant to this article not debt of state, county, municipality or any political subdivision.

Bonds and notes, including refunding bonds and notes, issued under the authority of this article and any coupons in connection therewith, and any other obligations undertaken by the authority pursuant to this article, shall not constitute a debt or a pledge of the faith and credit or taxing power of this state or of any county, municipality or any other political subdivision of this state, and the holders and owners thereof shall have no right to have taxes levied by the Legislature or the taxing authority of any county, municipality or any other political subdivision of this state for the payment of the principal thereof or interest thereon, but such bonds, notes and other obligations shall be payable solely from revenues and funds pledged for their payment as authorized by this article unless the notes are issued in anticipation of the issuance of bonds or the notes are refunded by refunding bonds issued under the authority of this article, which bonds or refunding bonds shall be payable solely from revenues and funds pledged for their payment as authorized by this article. All such bonds and notes, and all documents evidencing any other obligation, shall contain on the face thereof a statement to the effect that the bonds, notes or such other obligation as to both principal and interest, are not debts of the state or any county, municipality or political subdivision thereof, but are payable solely from revenues and funds pledged for their payment.


WVC 31 - 15 - 15 §31-15-15. Negotiability of bonds and notes issued pursuant to this article.

Whether or not the bonds or notes issued pursuant to this article are of such form or character as to be negotiable instruments under the Uniform Commercial Code, such bonds or notes are negotiable instruments within the meaning of and for all the purposes of the Uniform Commercial Code, subject only to the provisions of the bonds or notes for registration.


WVC 31 - 15 - 16 §31-15-16. Bonds and notes issued pursuant to this article; legal investments.

The provisions of sections nine and ten, article six, chapter twelve of this code to the contrary notwithstanding, the bonds and notes issued pursuant to the provisions of this article are securities in which all public officers and bodies of this state, including the West Virginia state board of investments, all municipalities and other political subdivisions of this state, all insurance companies and associations and other persons carrying on an insurance business, including domestic for life and domestic not for life insurance companies, all banks, trust companies, societies for savings, building and loan associations, savings and loan associations, deposit guarantee associations and investment companies, all administrators, guardians, executors, trustees and other fiduciaries and all other persons whatsoever who are authorized to invest in bonds or other obligations of the state may properly and legally invest funds, including capital, in their control or belonging to them.


WVC 31 - 15 - 16 A §31-15-16a. Bonds for capital improvements at institutions of higher education, state parks, the State Capitol complex, other state facilities or tourism sites; limitations; authority to issue revenue bonds; use of funds to pay for projects.
(a)(1) The economic development authority shall, in accordance with the provisions of this article, issue revenue bonds from time to time, to pay for a portion of the cost of constructing, equipping, improving or maintaining capital improvement projects under this section or to refund the bonds, at the discretion of the authority. The principal amount of the bonds issued under this section shall not exceed, in the aggregate, an amount that, in the opinion of the authority, is necessary to provide sufficient funds for achievement of the purposes of this section and is within the limits of moneys pledged for the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding bonds authorized by this section. Any revenue bonds issued on or after the effective date of this section which are secured by lottery proceeds shall mature at a time or times not exceeding thirty years from their respective dates. The principal of, and the interest and redemption premium, if any, on the bonds shall be payable solely from the Education, Arts, Sciences and Tourism Debt Service Fund established in section eleven-a, article six, chapter five and continued by this section.

(2) 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 this section. The authority may further provide in the trust agreement for priorities on the revenues paid into the Education, Arts, Sciences and Tourism Debt Service Fund as may be necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this section or section eleven-a, article six, chapter five of this code. The bonds issued pursuant to this section shall be separate from all other bonds which may be or have been issued from time to time under the provisions of section eleven-a, article six, chapter five of this code. The Education, Arts, Sciences and Tourism Debt Service Fund shall be pledged solely for the repayment of bonds issued pursuant to this section and section eleven-a, article six, chapter five of this code. On or prior to May 1 of each year, commencing May 1, 2010, the authority shall certify to the state lottery director the principal and interest and coverage ratio requirements for the following fiscal year on any revenue bonds or refunding revenue bonds issued pursuant to this section, and for which moneys deposited in the Education, Arts, Sciences and Tourism Debt Service Fund have been pledged, or will be pledged, for repayment pursuant to this section.

(3) After the authority has issued bonds authorized by this section, and after the requirements of all funds have been satisfied, including coverage and reserve funds established in connection with the bonds issued pursuant to this section, any balance remaining in the Education, Arts, Sciences and Tourism Debt Service Fund may be used for the redemption of any of the outstanding bonds issued under this section which, by their terms, are then redeemable or for the purchase of the outstanding bonds at the market price, but not to exceed the price, if any, at which redeemable, and all bonds redeemed or purchased shall be immediately canceled and shall not again be issued.

(b) The authority shall expend sixty percent of the bond proceeds, net of issuance costs, reserve funds and refunding costs, for certified capital improvement projects at state institutions of higher education. The Higher Education Policy Commission shall submit a proposed list of capital improvement projects to the Governor on or before January 1, 2010. Thereafter, the Governor shall certify to the authority on or before February 1, 2010, a list of those capital improvement projects at state institutions of higher education that will receive funds from the proceeds of bonds issued pursuant to this section.

At any time prior to the issuance of bonds under this section, the Governor may certify to the authority a revised list of capital improvement projects at state institutions of higher education that will receive funds from the proceeds of bonds issued pursuant to this section. The Governor shall consult with the Higher Education Policy Commission prior to certifying a revised list of capital improvement projects to the authority.

(c) The authority shall expend the balance of the bond proceeds for certified projects at state parks, the capitol complex, other state facilities or tourism sites.

(1) A committee comprised of the secretary of the Department of Administration, the director of the Division of Natural Resources, the director of the West Virginia Development Office and a representative of the capitol building commission, other than the secretary of the Department of Administration, who shall be selected by the capitol building commission, shall submit a proposed list of capital improvement projects to the Governor on or before January 1, 2010. Thereafter, the Governor shall certify to the authority on or before February 1, 2010, a list of those capital improvement projects at state parks, the State Capitol complex, other state facilities or tourism sites that will receive funds from the proceeds of bonds issued pursuant to this section. (2) At any time prior to the issuance of bonds under this section, the Governor may certify to the authority a revised list of capital improvement projects at state parks, the State Capitol Complex, other state facilities or tourism sites that will receive funds from the proceeds of bonds issued pursuant to this section. The Governor shall consult with the committee established by this subsection prior to certifying a revised list of capital improvement projects to the authority.


WVC 31 - 15 - 16 B §31-15-16b. Lottery revenue bonds for Cacapon Resort State Park                and Beech Fork State Park.

  (a) (1) The economic development authority shall, in accordance with the provisions of this article, issue revenue bonds, in one or more series, from time to time, to pay for all or a portion of the cost of constructing, equipping, improving or maintaining capital improvement projects under this section or to refund the bonds, at the discretion of the authority. The principal amount of the bonds issued under this section shall not exceed, in the aggregate principal amount of $52.5 million. Any revenue bonds issued on or after the effective date of this section which are secured by lottery proceeds shall mature at a time or times not exceeding thirty years from their respective dates. The principal of, and the interest and redemption premium, if any, on the bonds shall be payable solely from the Cacapon and Beech Fork State Parks Lottery Revenue Debt Service Fund established in this section.

  (2) There is hereby created in the State Treasury a special revenue fund named the "Cacapon and Beech Fork State Parks Lottery Revenue Service Fund" into which shall be deposited those amounts specified in section eighteen-e, 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 this section. The authority may further provide in the trust agreement for priorities on the revenues paid into the Cacapon and Beech Fork State Parks Lottery Revenue Debt Service Fund as may be necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this section. The Cacapon and Beech Fork State Parks Lottery Revenue Debt Service Fund shall be pledged solely for the repayment of bonds issued pursuant to this section. On or prior to May 1 of each year, commencing May 1, 2014, the authority shall certify to the state lottery director the principal and interest and coverage ratio requirements for the following fiscal year on any revenue bonds or refunding revenue bonds issued pursuant to this section, and for which moneys deposited in the Cacapon and Beech Fork State Parks Lottery Revenue Debt Service Fund have been pledged, or will be pledged, for repayment pursuant to this section.

  (3) After the authority has issued bonds authorized by this section, and after the requirements of all funds have been satisfied, including coverage and reserve funds established in connection with the bonds issued pursuant to this section, any balance remaining in the Cacapon and Beech Fork State Parks Lottery Revenue Debt Service Fund may be used for the redemption of any of the outstanding bonds issued under this section which, by their terms, are then redeemable or for the purchase of the outstanding bonds at the market price, but not to exceed the price, if any, at which redeemable, and all bonds redeemed or purchased shall be immediately canceled and shall not again be issued.

  (b) The authority shall expend the bond proceeds, net of issuance costs, reserve funds and refunding costs, for certified capital improvement projects at Cacapon Resort State Park and Beech Fork State Park. The Division of Natural Resources shall submit a proposed list of capital improvement projects to the Governor on or before January 1, 2013. Thereafter, the Governor shall certify to the authority on or before February 1, 2013, a list of those capital improvement projects at Cacapon Resort State Park and Beech Fork State Park that will receive funds from the proceeds of bonds issued pursuant to this section.

  At any time prior to the issuance of bonds under this section, the Governor may certify to the authority a revised list of capital improvement projects at Cacapon Resort State Park and Beech Fork State Park that will receive funds from the proceeds of bonds issued pursuant to this section. The Governor shall consult with the Division of Natural Resources prior to certifying a revised list of capital improvement projects to the authority.

  (c) Except as may otherwise be expressly provided by the authority, every issue of its notes or bonds shall be special obligations of the authority, payable solely from the property, revenues or other sources of or available to the authority pledged therefor.

  (d) The bonds and the notes shall be authorized by the authority pursuant to this section, and shall be secured, be in such denominations, may bear interest at such rate or rates, taxable or tax-exempt, be in such form, either coupon or registered, carry such registration privileges, be payable in such medium of payment and at such place or places and such time or times and be subject to such terms of redemption as the authority may authorize. The bonds and notes of the authority may be sold by the authority, at public or private sale, at or not less than the price the authority determines. The bonds and notes shall be executed by manual or facsimile signature by the chairman of the board, and the official seal of the authority or a facsimile thereof shall be affixed to or printed on each bond and note and attested, manually or by facsimile signature, by the secretary of the board, and any coupons attached to any bond or note shall bear the manual or facsimile signature of the chairman of the board. In case any officer whose signature, or a facsimile of whose signature, appears on any bonds, notes or coupons ceases to be such officer before delivery of such bonds or notes, such signature or facsimile is nevertheless sufficient for all purposes the same as if he or she had remained in office until such delivery; and, in case the seal of the authority has been changed after a facsimile has been imprinted on such bonds or notes, such facsimile seal will continue to be sufficient for all purposes.
WVC 31 - 15 - 17 §31-15-17. Exemption from taxation.

The exercise of the powers granted to the authority by this article will be in all respects for the benefit of the people of the state for the improvement of their health, safety, convenience and welfare and is a public purpose. As the operation and maintenance of projects financed under this article will constitute the performance of essential governmental functions, the authority shall not be required to pay any taxes or assessments upon any property acquired or used by the authority or upon the income therefrom. All bonds and notes of the authority, and all interest and income thereon, shall be exempt from all taxation by this state and any county, municipality, political subdivision or agency thereof, except inheritance taxes.


WVC 31 - 15 - 18 §31-15-18. Personal liability; persons executing bonds or notes issued pursuant to this article.

Neither the members or officers of the authority or of any authority, agency or office, nor any person executing the bonds or notes issued pursuant to the provisions of this article, shall be liable personally on such bonds or notes or be subject to any personal liability or accountability by reason of the issuance thereof.


WVC 31 - 15 - 19 §31-15-19. Cumulative authority as to powers conferred; applicability of other statutes and charters; bonds and notes issued pursuant to this article.

The provisions of this article relating to the making of loans and to the issuance of bonds and notes shall be construed as granting cumulative authority for the exercise of the various powers herein conferred, and neither the powers nor any bonds or notes issued hereunder shall be affected or limited by any other statutory or charter provision now or hereafter in force, other than as may be provided in this article, it being the purpose and intention of this article to create full, separate and complete additional powers. The various powers conferred herein may be exercised independently and notwithstanding that no bonds or notes are issued hereunder.


WVC 31 - 15 - 20 §31-15-20. Authority of the board of investments.

The board of investments shall, under the provisions of this article, invest moneys, securities and other assets of the special account for the common investment of state funds designated as the state account within the special investment fund designated as the consolidated fund established under the provisions of subsection (b), section eight, article six, chapter twelve of this code as a revolving loan fund with the authority, to enable the authority to make loans approved by the authority and to be funded from such consolidated fund in an amount which shall not at anytime exceed one hundred fifty million dollars in the aggregate principal amount outstanding. With respect to loans funded under this article through the consolidated fund of the state, such loans shall be made in the name of the consolidated fund by the authority.


WVC 31 - 15 - 21 §31-15-21. Loan and insurance application requirements.

Prior to the loaning of any funds to an industrial development agency or an enterprise for a project or the insuring of any bonds, notes, loans or other instruments pursuant to section eight of this article, the authority shall receive from such agency or enterprise an application in such form as adopted by the authority for either the loan or the insurance.


WVC 31 - 15 - 22 §31-15-22. Documentary materials concerning trade secrets; commercial or financial information; or confidentiality.

Any documentary material or data made or received by the authority for the purpose of furnishing assistance to a business, to the extent that such material or data consists of trade secrets or commercial or financial information regarding the financial position or business operation of such business, shall not be considered public records and shall be exempt from disclosure pursuant to the provisions of chapter twenty-nine-b of this code. Any discussion or consideration of such trade secrets or commercial or financial information may be held by the authority in executive session closed to the public, notwithstanding the provisions of article nine-a, chapter six of this code: Provided, That the authority shall make publicly available the following information regarding executed loans or its provision of insurance: (1) the name of the debtor, (2) location(s) of the project, (3) amount of the authority loan or financial assistance provided by the insurance fund, (4) the purpose of the loan or financial assistance, (5) the term, rate and interest of the loan, and (6) the fixed assets which serve as security for the loan or insurance provided.


WVC 31 - 15 - 23 §31-15-23. Economic development fund.

The economic development fund, to which shall be credited any appropriation made by the Legislature to the authority, any funds which the authority is authorized to receive under any provision of this code, other funds which the board directs to be deposited into the fund, and such other deposits as are provided for in this section, is hereby continued in the state treasury as a special account.

The authority may requisition from the fund such amounts as are necessary to provide for the payment of the administrative expenses of this article. Notwithstanding any other provision of this article, whenever the authority determines it to be necessary to purchase at a foreclosure sale any project pursuant to subdivision (t), section six of this article, it may requisition from the fund such amount as is necessary to pay the purchase price thereof.

The authority shall requisition from the fund such amounts as are allocated and appropriated for loans to industrial development agencies or enterprises for projects. As loans to industrial development agencies or enterprises are repaid to the authority pursuant to the terms of mortgages and other agreements, the authority shall pay such amounts into the fund, consistent with the intent of this article that the fund shall operate as a revolving fund whereby all appropriations and payments made thereto may be applied and reapplied for the purposes of this article. Revenues deposited into the fund may be used to make payments of interest and principal and may be pledged as security for bonds, security interests or notes issued by the authority pursuant to this article.

Whenever the authority determines that the balance in the fund is in excess of the immediate requirements for loans, it may request that such excess be invested until needed for loan purposes, in which case such excess shall be invested in a manner consistent with the investment of other temporary state funds. Interest earned on any money invested pursuant to this section shall be credited to the fund.

If the authority determines that funds held in the fund are in excess of the amount needed to carry out the purposes of this article, it may take such action as is necessary to release such excess and transfer it to the general fund of the state treasury.


WVC 31 - 15 - 24 §31-15-24. Transfer of state property to the authority.

The governor is authorized to provide for the transfer to the authority of the use, possession and control of such real or personal property of the state as he may from time to time deem useful to the authority in the conduct of its activities as authorized by this article.


WVC 31 - 15 - 25 §31-15-25. Validity of any pledge, mortgage, deed of trust or security instrument.

It is the intention hereof that any pledge, mortgage, deed of trust or security instrument made by or for the benefit of the authority shall be valid and binding between the parties from the time the pledge, mortgage, deed of trust or security instrument is made; and that the moneys or property so pledged, encumbered, mortgaged or entrusted shall immediately be subject to the lien of such pledge, mortgage, deed of trust or security instrument without any physical delivery thereof or further act.


WVC 31 - 15 - 26 §31-15-26. Money of the authority.

All money accruing to the authority from whatever source derived, except legislative appropriations, shall be collected and received by the treasurer of the authority, who shall pay it into the state treasury in the manner required by section two, article two, chapter twelve of this code, which shall be credited to the appropriate fund of the authority.


WVC 31 - 15 - 27 §31-15-27. Conflict of interest; when contracts void.

No member, officer or employee of the authority shall either directly or indirectly be a party to or interested in any manner in any contract or agreement with the authority whereby liability or indebtedness against or to the authority is in any manner created. Any contract or agreement made in violation of the provisions of this section shall be void and no action thereon shall be maintained against the authority.


WVC 31 - 15 - 28 §31-15-28. Agreement with federal agencies not to alter or limit powers of authority.

The state hereby pledges to and agrees with each federal agency that, if such agency constructs or loans or contributes any funds for any project, the state will not alter or limit the rights and powers of the authority in any manner which would be inconsistent with the due performance of any agreement between the authority and such federal agency and that the authority shall continue to have and exercise all powers granted for carrying out the purposes of this article for so long as necessary.


WVC 31 - 15 - 29 §31-15-29. Audits.

As soon as possible after the close of each fiscal year, the authority shall make an annual report of its activities for the preceding fiscal year to the governor and the Legislature. Each such report shall set forth a complete operating and financial statement covering the authority's operations during the preceding fiscal year. The authority shall cause an audit of its books and accounts to be made at least once each fiscal year by certified public accountants and the cost thereof may be treated as a part of the cost of construction or of operations of its projects.


WVC 31 - 15 - 30 §31-15-30. Projects not to be considered public improvements.

No project, enterprise or business facility which conducts as its primary activity a manufacturing process or other nongovernmental or nonpublic activity may be deemed to be a "public improvement" within the meaning of the provisions of article five-a, chapter twenty-one of this code.


WVC 31 - 15 - 31 §31-15-31. Foreign trade zones; authority approval.

Any public corporation located in the state is hereby authorized to apply for, develop, maintain and operate a foreign trade zone in the state pursuant to and in accordance with all applicable provisions of federal law: Provided, That any public corporation desiring to apply for or develop a foreign trade zone must first receive the approval of the authority.


WVC 31 - 15 - 32 §31-15-32. Severability.

If any section, subsection, subdivision, subparagraph, sentence or clause of this article is adjudged to be unconstitutional or invalid, such adjudication shall not affect the validity of the remaining portions of this article, and, to this end, the provisions of this article are hereby declared to be severable.


WVC 31 - 15 - 33 §31-15-33. Construction.

The provisions of this article are remedial and shall be liberally construed and applied so as to promote the purposes set out in section three of this article.


WVC 31 - 15 A- ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT COUNCIL.


WVC 31 - 15 A- 1 §31-15A-1. Short title.

This article shall be known and may be cited as the "West Virginia Infrastructure and Jobs Development Act."


WVC 31 - 15 A- 2 §31-15A-2. Definitions.
For purposes of this article:

(a) "Bond" or "infrastructure revenue bond" means a revenue bond, note, or other obligation issued by the water development authority pursuant to this article, including bonds to refund such bonds and notes to renew such notes, and notes in anticipation of and payable from the proceeds of such bonds.

(b) "Code" means the code of West Virginia, one thousand nine hundred thirty-one, as amended;

(c) "Cost" means, as applied to any project to be financed, in whole or in part, with infrastructure revenues or funds otherwise provided pursuant to this article, the cost of planning, acquisition, improvement and construction of the project; the cost of preliminary design and analysis, surveys, borings; the cost of environmental, financial, market and engineering feasibility studies, assessments, applications, approvals, submissions or clearances; the cost of preparation of plans and specifications and other engineering services; the cost of acquisition of all land, rights-of-way, property rights, easements, franchise rights and any other interests required for the acquisition, repair, improvement or construction of the project; the cost of demolishing or removing any buildings or structures on land so acquired, including the cost of acquiring any lands to which buildings or structures may be moved; the cost of excavation, grading, shaping or treatment of earth, demolishing or removing any buildings or structures; the cost of constructing any buildings or other improvements; the cost of all pumps, tanks, vehicles, apparatus and other machinery, furnishings and equipment; loan or origination fees and all finance charges and interest incurred prior to and during the construction and for no more than six months after completion of construction; the cost of all legal services and expenses; the cost of all plans, specifications, surveys and estimates of cost; all working capital and other expenses necessary or incident to determining the feasibility or practicability of acquiring, repairing, improving or constructing any project; the cost of placing any project in operation; and all other costs and expenses of any kind or nature incurred or to be incurred by the project sponsor developing the project that are reasonable and necessary for carrying out all works and undertakings necessary or incident to the accomplishment of any project: Provided, That costs shall not include any amounts related to the ongoing operations of the owner or operator, depreciation thereof or any other cost which the council or the water development authority has not determined to be consistent with the purposes and objectives of this article;

(d) "Council" means the West Virginia infrastructure and jobs development council created in section three of this article;

(e) "Division of environmental protection" means the division of environmental protection established under article one, chapter twenty-two of this code, or any successor to all or any substantial part of its powers and duties;

(f) "Division of health" means the division of health created in article one, chapter sixteen of this code, or any successor to all or any substantial part of its powers and duties;

(g) "Economic development authority" means the economic development authority established under article fifteen, chapter thirty-one of the code, or any successor to all or any substantial part of its powers and duties;

(h) "Emergency project" means a project which the council has determined: (1) Is essential to the immediate economic development of an area of the state; and (2) will not likely be developed in that area if construction of the project is not commenced immediately;

(i) "Governmental agency" means any county; municipality; watershed improvement district; assessment district; soil conservation district; sanitary district; public service district; drainage district; regional governmental authority and any other state governmental agency, entity, political subdivision or public corporation or agency authorized to acquire, construct or operate water or wastewater facilities or infrastructure projects;

(j) "Housing development fund" means the West Virginia housing development fund established under article eighteen of this chapter, or any successor to all or any substantial part of its powers and duties;

(k) "Infrastructure fund" means the West Virginia infrastructure fund created and established in section nine of this article;

(l) "Infrastructure project" means a project in the state which the council determines is likely to foster and enhance economic growth and development in the area of the state in which the project is developed, for commercial, industrial, community improvement or preservation or other proper purposes, including, without limitation, tourism and recreational housing, land, air or water transportation facilities and bridges, industrial or commercial projects and facilities, mail order, warehouses, wholesale and retail sales facilities and other real and personal properties, including facilities owned or leased by this state or any other project sponsor, and includes, without limitation: (1) The process of acquiring, holding, operating, planning, financing, demolition, construction, improving, expanding, renovation, leasing or otherwise disposing of the project or any part thereof or interest therein; and (2) preparing land for construction and making, installing or constructing improvements on the land, including water or wastewater facilities or any part thereof, steam, gas, telephone and telecommunications and electric lines and installations, roads, bridges, railroad spurs, buildings, docking and shipping facilities, curbs, gutters, sidewalks, and drainage and flood control facilities, whether on or off the site;

(m) "Infrastructure revenue" means all amounts appropriated by the Legislature; all amounts deposited into the infrastructure fund; any amounts received, directly or indirectly, from any source for the use of all or any part of any project completed pursuant to this article; and any other amounts received by the state treasurer, council or the water development authority for the purposes of this article;

(n) "Need of the project sponsors" means there is a public need for a project. The council shall construe a population increase evidenced by the last two decennial censuses in a county in which a project is proposed, as a factor supporting the conclusion that a need exists for projects in that county.

(o) "Project" means any wastewater facility, water facility project or any combination thereof, constructed or operated or to be constructed or operated by a project sponsor;

(p) "Project sponsor" means any governmental agency or person, or any combination thereof, including, but not limited to, any public utility, which intends to plan, acquire, construct, improve or otherwise develop a project;

(q) "Public service commission" means the public service commission of West Virginia created and established under section three, article one, chapter twenty-four of this code, or any successor to all or any substantial part of its powers and duties;

(r) "Person" means any individual, corporation, partnership, association, limited liability company or any other form of business organization;

(s) "Public utility" means any person or persons, or association of persons, however associated, whether incorporated or not, including, without limitation, any governmental agency, operating a wastewater facility or water facility as a public service, which is regulated by the public service commission as a public utility under chapter twenty-four of this code or which is required to file its tariff with the public service commission;

(t) "State development office" means the West Virginia development office established under article two, chapter five-b of this code, or any successor to all or any substantial part of its powers and duties;

(u) "State infrastructure agency" means the division of health, division of environmental protection, housing development fund, public service commission, state development office, water development authority, economic development authority and any other state agency, division, body, authority, commission, instrumentality or entity which now or in the future receives applications for the funding of, and provides funding or technical assistance to, the planning, acquisition, construction or improvement of a project;

(v) "Wastewater facility" means all facilities, land and equipment used for or in connection with treating, neutralizing, disposing of, stabilizing, cooling, segregating or holding wastewater, including, without limitation, facilities for the treatment and disposal of sewage, industrial wastes or other wastes, wastewater, and the residue thereof; facilities for the temporary or permanent impoundment of wastewater, both surface and underground; and sanitary sewers or other collection systems, whether on the surface or underground, designed to transport wastewater together with the equipment and furnishings therefor or thereof and their appurtenances and systems, whether on the surface or underground including force mains and pumping facilities therefor;

(w) "Water development authority" means the West Virginia water development authority continued pursuant to the provisions of article one, chapter twenty-two-c of this code, or any successor to all or any substantial part of its powers and duties; and

(x) "Water facility" means all facilities, land and equipment used for or in connection with the collection and/or storage of water, both surface and underground, transportation of water, storage of water, treatment of water and distribution of water all for the purpose of providing potable, sanitary water suitable for human consumption and use.


WVC 31 - 15 A- 3 §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 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 determined to be, essential governmental functions and for a public purpose.

(b) The council shall consist of thirteen members, including:

(1) The Governor or designee;

(2) The Executive Director of the Housing Development Fund or his or her designee;

(3) The Director of the Division of Environmental Protection or his or her designee;

(4) The Director of the Economic Development Authority or his or her designee;

(5) The Director of the Water Development Authority or his or her designee;

(6) The Director of the Division of Health or his or her designee;

(7) The Chairman of the Public Service Commission or his or her designee; and

(8) Six members representing the general public: Provided, That there shall be at least one member representing the general public from each congressional district. No more than one member representing the general public may be a resident of the same county.

(c) The Governor shall appoint the public members of the Council who shall serve three-year staggered terms.

(d) 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 advisory members shall be ex officio, nonvoting members of the Council.

(e) The Governor shall appoint the legislative members of the council: Provided, That no more than three of the legislative members may be of the same political party.

(f) The Governor shall appoint the representatives of the governing boards from a list of three names submitted by each governing board.

(g) 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. 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.

(h) 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.

(i) 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.

(j) 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.

(k) 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 other appropriate parties as is necessary to effectuate the purposes of this article.


WVC 31 - 15 A- 4 §31-15A-4. Development of guidelines and preliminary application for funding assistance.

(a) To implement and carry out the intent of this article, the council shall promulgate legislative rules in accordance with article three, chapter twenty-nine-a of this code to develop comprehensive, uniform guidelines for use by the council and other state infrastructure agencies in evaluating any request by a project sponsor for funding assistance to plan, acquire, construct, improve or otherwise develop a project or infrastructure project. The guidelines shall include the following factors: (1) The public health benefits of the project or infrastructure project; (2) the economic development benefits of the project or infrastructure project; (3) the degree to which the project or infrastructure project will correct deficiencies in the compliance of water supply or sewage treatment facilities with state or federal laws, regulations or standards; (4) the degree to which the project or infrastructure project encourages effective and efficient consolidation of water or sewage treatment systems consistent with the comprehensive plan developed pursuant to section six of this article; (5) the cost effectiveness of the project or infrastructure project as compared with alternatives which achieve substantially the same public health or economic development benefits, including the consideration of providing maximum feasible fire protection; (6) the availability of alternative sources of funding which could finance all or a part of the project and infrastructure project, and the need for the assistance of the council to finance the project or infrastructure project or attract other sources of funding; (7) the applicant's ability to operate and maintain the system if the project or infrastructure project is approved; (8) the degree to which the project or infrastructure project achieves other state or regional planning goals; (9) the estimated date upon which the project or infrastructure project could commence if funding were available and the estimated completion date of the project or infrastructure project; and (10) such other considerations as the council may consider necessary or appropriate to accomplish the purpose and intent of this article.

(b) The council shall create a preliminary application form which shall be used by all project sponsors requesting funding assistance from state infrastructure agencies to plan, acquire, construct, improve or otherwise develop an infrastructure project or project. The preliminary application form shall contain all information required by all state infrastructure agencies that will be required to issue permits and/or certificates regarding the project or infrastructure project. The preliminary application shall require the project sponsor to set forth the type and proposed location of the infrastructure project or project; the estimated total cost of the project; the amount of funding assistance required and the specific uses of the funding; other sources of funding available or potentially available for the infrastructure project or project; information demonstrating the need for the infrastructure project or project and that the proposed funding of the project is the most economically feasible and viable alternative to completing the project or infrastructure project; and such other information as the council considers necessary to enable it to recommend the type of project or infrastructure project financing, in terms of the kind, amount and source of funding, which the project sponsor should pursue and which the state infrastructure agency or agencies should consider an appropriate investment of public funds, and to otherwise carry out the intent of this article.


WVC 31 - 15 A- 5 §31-15A-5. Requirements for project funding assistance; review of project preliminary applications by council.

(a) No project sponsor may apply for or receive any loan, loan guarantee, grant or other funding assistance for a project or infrastructure project from any state infrastructure agency (i) unless the project sponsor requiring the funding assistance first submits a completed preliminary application to the council on the form prepared for such purpose by the council pursuant to section four of this article, and (ii) except as may be recommended by the council after consideration of the preliminary application: Provided, That any project sponsor which has an infrastructure project or project with either acceptable bids or all funding in place on the effective date of this act is not required to comply with the provisions of this section.

(b) The council shall, within thirty days of receipt of each completed preliminary application submitted to it, review the preliminary application and either (i) make a written recommendation as to the infrastructure project or project financing, in terms of the kind, amount and source of funding, which the project sponsor submitting the application should pursue and which the state infrastructure agency or agencies should consider an appropriate investment of public funds, or (ii) if the council determines that (1) the proposed project or infrastructure project is not eligible for funding assistance from any state infrastructure agency, or (2) the proposed project or infrastructure project is not otherwise an appropriate or prudent investment of state funds, the council shall recommend that the project sponsor not seek funding from any state infrastructure agency. A project sponsor shall include the preliminary application and the council's recommendations in any application to a state infrastructure agency.

(c) The council shall provide a copy of its recommendation with respect to each preliminary application, together with a copy of the preliminary application, to all appropriate state infrastructure agencies, which shall take into account the council's recommendations with respect to a project or infrastructure project before taking any action with respect to the project. No state infrastructure agency shall take any action inconsistent with the recommendation of the council unless the governing body of the agency, or the head of the agency if it has no governing body, expressly finds and determines that the recommendation is not in the best interest of the state or the area in which the proposed infrastructure project or project is to be located.

(d) In reviewing each preliminary application, the council shall use the engineering, financial and technical expertise of the respective staffs of the state infrastructure agencies represented on the council so as to recommend for funding those projects or infrastructure projects which are consistent with the purposes and intent of this article and with the policies and priorities of this state generally. The council may include in its findings a recommendation that a state infrastructure agency consider technical reports on the project prepared by other infrastructure agencies or by any federal agency.


WVC 31 - 15 A- 6 §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 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. 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 in 1996.

(c) The council shall study the viability of the consolidation of public service districts throughout the state. 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.


WVC 31 - 15 A- 7 §31-15A-7. Current and prospective planning; roads and highways; report to division of highways.

(a) The council shall take into account the current and prospective infrastructure needs in relation to plans of the division of highways for the development and building of new roads. Upon completion of an environmental impact study, the commissioner of highways shall provide the council with plans for any and all new roads. In a timely manner, the council shall advise the commissioner of the division of highways on the feasibility of the expansion of new or existing water and sewer lines concomitant to the construction of the new roads.

(b) The council has the authority to appoint local infrastructure planning teams. The local infrastructure planning teams may consist of the following: A designee of the division of highways from the region where the new road is being built; a designee of the division of highways from the central state office; a designee from the environmental engineers division of the department of health and human resources; a designee from the local developmental authority where the new road is being built; a designee from the regional developmental authority in the area where the new road is being built; a designee from the public service commission; a designee from the division of environmental protection; a designee from the county commission where the new road is being built who shall serve as chairperson of the planning team; a citizen of the county where the new road is being built to be chosen by the county commission; and the elected state delegates and senators from the area where the new road is being built. In order to avoid delay of any highway project, immediately upon appointment of a local infrastructure planning team, the director of the division of highways shall submit to the council a time frame within which the planning team must act and within which the planning team must submit any plans, maps, recommendations or reports developed pursuant to this subsection. The local infrastructure planning team shall meet prior to the development and building of a new road. Members of the local infrastructure planning team shall only receive payment for actual expenses incurred. The local infrastructure planning team shall advise the commissioner of the division of highways on the feasibility of an infrastructure plan. The local infrastructure planning team shall meet to develop an infrastructure plan that includes an assessment study of existing water and sewer lines and a feasibility study on future development and laying of water and sewer lines. After these studies are completed, a developmental map shall be drawn of the proposed road route with overlays of the proposed water and sewer lines. These studies and the map shall be presented to the commissioner of the division of highways and shall be used by the commissioner in the planning, developing and building of the road.

(c) The water development authority shall establish a restricted account within the infrastructure fund to be expended for the construction of water and sewage lines as may be recommended by the council in accordance with this article and specifically, in accordance with the plan developed under subsection (b) of this section. The reserve account shall be known as the "infrastructure road improvement reserve account". The council and the division of highways may enter into agreements to share the cost of financing projects approved in accordance with this section from moneys available in the infrastructure road reserve account and moneys available from the state road fund. Annually, the council may direct the water development authority to transfer funds from the infrastructure fund in an amount not to exceed one million dollars to the restricted account:Provided, That at no time may the balance of the restricted account exceed one million dollars.

(d) For the purposes of this section the term "new" means a road right-of-way being built for the first time.

(e) After the construction of water and sewer lines adjacent to the new road, these new lines shall be turned over to existing utilities by expansion of boundaries of public service districts or shall be main extensions from the municipality.


WVC 31-15A-8 §31-15A-8. Exemption of certain emergency projects from certificate of public convenience and necessity requirements; review of certain emergency projects by public service commission; and exemption for North Fork Hughes River watershed project.
(a) If the council determines a project to be an emergency and the emergency project will be funded solely with grant money for the extension of an existing certificated water facility or wastewater facility, and if the council finds in its recommendation that the construction and acquisition of the emergency project will have no effect on the public utility's customer rates and will have no significant effect on its operational costs as a result of the project cost, then the emergency project is exempt from the requirement to obtain a certificate of public convenience and necessity under section eleven, article two, chapter twenty-four of this code. If the public utility is a public service district, it is exempt from the approval of the public service commission required under section twenty-five, article thirteen-a, chapter sixteen of this code.

(b) Any public utility, and any other entity that will operate as a public utility, must obtain a certificate of public convenience and necessity pursuant to section eleven, article two, chapter twenty-four of this code for any emergency project that is not exempt under subsection (a) of this section. The public service commission shall render its final decision on any application for a certificate within one hundred twenty days of the filing of the application: Provided, That the thirty-day prefiling requirement is not required. If the project sponsor is a public service district, then the project will be exempted from the approval requirements of section twenty-five, article thirteen-a, chapter sixteen of this code.

(c) Projects that are not emergency projects are subject to the requirements of section eleven, article two, chapter twenty-four of this code to the extent they would be otherwise.

(d) The North Fork Hughes River watershed project, proposed to enhance economic growth and development through tourism as provided in subsection (l), section two of this article and to include a water facility project as defined in subsection (n), section two of this article, is hereby specifically exempted from any requirement imposed by this article, except that the provisions of subsection (a) of this section are specifically made applicable to the project. The project is hereby specifically authorized and the public land corporation shall have and may exercise the power of eminent domain and all authority otherwise prescribed by law to acquire necessary land and rights-of-way, to include approximately four hundred seventy-eight acres, in connection with the project. Funding for the project shall be provided by the federal government from the Appalachian regional commission through the United States soil conservation service. Upon completion of the project, the property acquired shall be transferred to the state park system. The commissioner of the division of tourism and parks or the successor to the commissioner's powers and duties is directed to expand the boundaries of North Bend state park to include the project area and to operate the expanded park property, including improved recreational facilities, from funds appropriated for that purpose.


WVC 31 - 15 A- 9 §31-15A-9. Infrastructure fund; deposits in fund; disbursements to provide loans, loan guarantees, grants and other assistance; loans, loan guarantees, grants and other assistance shall be subject to assistance agreements; West Virginia Infrastructure Lottery Revenue Debt Service Fund; use of funds for projects.
     (a) The Water Development Authority shall create and establish a special revolving fund of moneys made available by appropriation, grant, contribution or loan to be known as the "West Virginia Infrastructure Fund". This fund shall be governed, administered and accounted for by the directors, officers and managerial staff of the Water Development Authority as a special purpose account separate and distinct from any other moneys, funds or funds owned and managed by the Water Development Authority. The infrastructure fund shall consist of sub-accounts, as deemed necessary by the council or the Water Development Authority, for the deposit of: (1) Infrastructure revenues; (2) any appropriations, grants, gifts, contributions, loan proceeds or other revenues received by the infrastructure fund from any source, public or private; (3) amounts received as payments on any loans made by the Water Development Authority to pay for the cost of a project or infrastructure project; (4) insurance proceeds payable to the Water Development Authority or the infrastructure fund in connection with any infrastructure project or project; (5) all income earned on moneys held in the infrastructure fund; (6) all funds deposited in accordance with section four of article fifteen-b; and (7) all proceeds derived from the sale of bonds issued pursuant to article fifteen-b of this chapter.

     Any money collected pursuant to this section shall be paid into the West Virginia infrastructure fund by the state agent or entity charged with the collection of the same, credited to the infrastructure fund, and used only for purposes set forth in this article or article fifteen-b.

 Amounts in the infrastructure fund shall be segregated and administered by the Water Development Authority separate and apart from its other assets and programs. Amounts in the infrastructure fund may not be transferred to any other fund or account or used, other than indirectly, for the purposes of any other program of the Water Development Authority, except that the Water Development Authority may use funds in the infrastructure fund to reimburse itself for any administrative costs incurred by it and approved by the council in connection with any loan, loan guarantee, grant or other funding assistance made by the Water Development Authority pursuant to this article.

     (b) Notwithstanding any provision of this code to the contrary, amounts in the infrastructure fund shall be deposited by the Water Development Authority in one or more banking institutions: Provided, That any moneys so deposited shall be deposited in a banking institution located in this state. The banking institution shall be selected by the Water Development Authority by competitive bid. Pending the disbursement of any money from the infrastructure fund as authorized under this section, the Water Development Authority shall invest and reinvest the moneys subject to the limitations set forth in article eighteen, chapter thirty-one of this code.

     (c) To further accomplish the purposes and intent of this article and article fifteen-b of this chapter, the Water Development Authority may pledge infrastructure revenues and from time to time establish one or more restricted accounts within the infrastructure fund for the purpose of providing funds to guarantee loans for infrastructure projects or projects: Provided, That for any fiscal year the Water Development Authority may not deposit into the restricted accounts more than twenty percent of the aggregate amount of infrastructure revenues deposited into the infrastructure fund during the fiscal year. No loan guarantee shall be made pursuant to this article unless recourse under the loan guarantee is limited solely to amounts in the restricted account or accounts. No person shall have any recourse to any restricted accounts established pursuant to this subsection other than those persons to whom the loan guarantee or guarantees have been made.

     (d) Each loan, loan guarantee, grant or other assistance made or provided by the Water Development Authority shall be evidenced by a loan, loan guarantee, grant or assistance agreement between the Water Development Authority and the project sponsor to which the loan, loan guarantee, grant or assistance shall be made or provided, which agreement shall include, without limitation and to the extent applicable, the following provisions:

     (1) The estimated cost of the infrastructure project or project, the amount of the loan, loan guarantee or grant or the nature of the assistance, and in the case of a loan or loan guarantee, the terms of repayment and the security therefor, if any;

     (2) The specific purposes for which the loan or grant proceed shall be expended or the benefits to accrue from the loan guarantee or other assistance, and the conditions and procedure for disbursing loan or grant proceeds;

     (3) The duties and obligations imposed regarding the acquisition, construction, improvement or operation of the project or infrastructure project; and

     (4) The agreement of the governmental agency to comply with all applicable federal and state laws, and all rules and regulations issued or imposed by the Water Development Authority or other state, federal or local bodies regarding the acquisition, construction, improvement or operation of the infrastructure project or project and granting the Water Development Authority the right to appoint a receiver for the project or infrastructure if the project sponsor should default on any terms of the agreement.

     (e) Any resolution of the Water Development Authority approving loan, loan guarantee, grant or other assistance shall include a finding and determination that the requirements of this section have been met.

     (f) The interest rate on any loan to governmental, quasi- governmental, or not for profit project sponsors for projects made pursuant to this article shall not exceed three percent per annum. Due to the limited availability of funds available for loans for projects, it is the public policy of this state to prioritize funding needs to first meet the needs of governmental, quasi- governmental and not for profit project sponsors and to require that loans made to for-profit entities shall bear interest at the current market rates. Therefore, no loan may be made by the council to a for-profit entity at an interest rate which is less than the current market rate at the time of the loan agreement.

     (g) The Water Development Authority shall cause an annual audit to be made by an independent certified public accountant of its books, accounts and records, with respect to the receipts, disbursements, contracts, leases, assignments, loans, grants and all other matters relating to the financial operation of the infrastructure fund, including the operating of any sub-account within the infrastructure fund. The person performing such audit shall furnish copies of the audit report to the commissioner of finance and administration, where they shall be placed on file and made available for inspection by the general public. The person performing such audit shall also furnish copies of the audit report to the Legislature's Joint Committee on Government and Finance.

     (h) There is hereby created in the Water Development Authority a separate, special account which shall be designated and known as the "West Virginia Infrastructure Lottery Revenue Debt Service Fund," into which shall be deposited annually for the fiscal year beginning July 1, 2011, and each fiscal year thereafter, the first $6 million transferred pursuant to section eighteen-d, article twenty-two, chapter twenty-nine of this code and any other funds provided therefor: Provided, That such deposits and transfers are not subject to the reservations of funds or requirements for distributions of funds established by sections ten and eleven of this article. Moneys in the West Virginia infrastructure lottery revenue debt service fund shall be used to pay debt service on bonds or notes issued by the Water Development Authority for watershed compliance projects as provided in section seventeen-b of this article, and to the extent not needed to pay debt service, for the design or construction of improvements for watershed compliance projects. Moneys in the West Virginia infrastructure lottery revenue debt service fund not expended at the close of the fiscal year do not lapse or revert to the General Fund but are carried forward to the next fiscal year.
WVC 31-15A-10 §31-15A-10. Recommendations by council for expenditures of funds by loan, grant or for engineering assistance.
(a) To further accomplish the purpose and intent of this article, the water development authority shall use the moneys in the infrastructure fund created pursuant to section nine of this article, upon receipt of one or more recommendations from the council pursuant to section five of this article, to make loans, with or without interest, loan guarantees or grants and to provide other assistance, financial, technical or otherwise, to finance all or part of the costs of infrastructure projects or projects to be undertaken by a project sponsor: Provided, That any moneys disbursed from the infrastructure fund in the form of grants shall not exceed twenty percent of the total funds available for the funding of projects. No loan, loan guarantee, grant or other assistance shall be made or provided except upon a determination by the council that the loan, loan guarantee, grant or other assistance and the manner in which it will be provided are necessary or appropriate to accomplish the purposes and intent of this article, based upon an application submitted to the council: Provided, however, That no grant shall be made to a project sponsor that is not a governmental agency or a not for profit corporation under the provisions of section 501(c) of the Internal Revenue Code of 1986, as amended. Applications for loans, loan guarantees, grants or other assistance may be submitted by a project sponsor for one or more infrastructure projects on preliminary application forms prepared by the council pursuant to section four of this article. Any recommendation of the council approving a loan, loan guarantee, grant or other assistance shall include a finding and determination by the council that the requirements of this section have been met. The council shall base any decisions to loan money for projects to project sponsors pursuant to this article solely on the need of the project sponsors.

(b) The council has the authority in its sole discretion to make grants to project sponsors if it finds that: (1) The level of rates for the users would otherwise be an unreasonable burden given the users' likely ability to pay; or (2) the absence of a sufficient number of users prevents funding of the project except through grants: Provided, That no project sponsor shall receive infrastructure grant money in an amount in excess of fifty percent of the total cost of the project. Therefore, the council may consider the economic or financial conditions of the area to be served. As a condition for receipt of a grant under this subsection, the council may require, in addition to any other conditions, that the applicant pursue other state or federal grant or loan programs. Upon a recommendation by the council, the water development authority shall provide the grant in accordance with the recommendation. The council shall develop criteria to be considered in making grants to project sponsors which shall require consideration of the economic or financial conditions of the area to be served and the availability of other funding sources. The council shall adopt procedural rules regarding the manner in which grants will be awarded in conformity with this section. The procedural rules shall be adopted pursuant to article three, chapter twenty-nine-a of this code.

(c) Notwithstanding any other provision of this article to the contrary, the council shall apply a mandatory minimum end user utility rate that must be met by the project sponsor before funding assistance may be awarded. The mandatory minimum end utility rate shall be based upon a uniform statewide percentage of the median household income in a particular geographic area and said rate shall not exceed six tenths of one percent: Provided, That funding assistance made from the proceeds of any general obligation bonds and revenue bonds issued after the fifteenth day of March, one thousand nine hundred ninety-eight, after transfers required to make the state match for the water and wastewater revolving loan programs pursuant to article two, chapter twenty-two-c and article thirteen-c, chapter sixteen of this code, shall be provided by the council on a pro rata basis divided equally among the congressional districts of this state as delineated in accordance with section three, article two, chapter one of this code: Provided, however, That infrastructure projects as defined in subsection (l), section two of this article shall not be subject to pro rata distribution. When determining median household income of a geographic area of the project to be served, the council shall consider any surveys of the income of the households that will be served by the project.

(d) No loan or grant funds may be made available for a project if the project to be funded will provide subsidized services to certain users in the service area of the project.

(e) Notwithstanding any other provision of this article to the contrary, engineering studies and requirements imposed by the council for preliminary applications shall not exceed those engineering studies and requirements which are necessary for the council to determine the economic feasibility of the project. If the council determines that the engineering studies and requirements for the preapplication would impose an undue hardship on any project sponsor, the council may provide funding assistance to project sponsors to defray the expenses of the preapplication process from moneys available in the infrastructure fund for making loans: Provided, That the council may only provide funding assistance in an amount equal to five thousand dollars or fifty percent of the total preapplication cost of the project, whichever amount is greater. If the project is ultimately approved for a loan by the council, the amount of funding assistance provided to the project sponsor for the preapplication process shall be included in the total amount of the loan to be repaid by the project sponsor. If the project is not ultimately approved by the council, then the amount of funding assistance provided to the project sponsor will be considered a grant by the council and the total amount of the assistance shall be forgiven. In no event may the amount of funding assistance provided to all project sponsors exceed, in the aggregate, one hundred thousand dollars annually.

(f) The council shall report to the governor, the speaker of the House of Delegates and the president of the Senate during each regular and interim session of the Legislature, on its activities and decisions relating to distribution or planned distribution of grants and loans under the criteria to be developed pursuant to this article.


WVC 31 - 15 A- 11 §31-15A-11. Reservation of funds for projects and infrastructure projects.
Eighty percent of the funds deposited in the West Virginia infrastructure fund shall be dedicated for the purpose of providing funding for the cost of projects as defined in subsection (n), section two of this article. Twenty percent of the funds deposited in the West Virginia infrastructure fund shall be dedicated for the purpose of providing funding for costs of infrastructure projects as defined in subsection (l), section two of this article. Project sponsors of infrastructure projects shall follow the application process as established by this article: Provided, That notwithstanding any provision of this article to the contrary, all applications for any infrastructure project shall be submitted to the executive director of the West Virginia development office for review, recommendation and approval regarding infrastructure project funding.


WVC 31 - 15 A- 12 §31-15A-12. Additional powers of water development authority.

To accomplish the purpose and intent of this article, the water development authority is hereby empowered, in addition to all other powers granted to it under this code, upon approval of the council, to (1) enter into agreements or other transactions with any federal or state agency in connection with any infrastructure project or project; (2) receive or administer on behalf of any federal or state agency grants, subsidies or other payments to be applied to the costs of any infrastructure project or project financed, in whole or in part, or otherwise assisted by the water development authority, including, but not limited to, payments to be applied to operating costs and debt service or obligations of any project sponsor; (3) receive and accept aid or contributions from any source of money, property, labor or other things of value, to be held, used and applied only for the purposes for which such grants and contributions are made; (4) establish and amend the criteria and qualifications for making loans, loan guarantees or grants, or providing any other assistance, for any infrastructure project or project, and the terms of any loans, loan guarantee, grant or assistance agreement for any project; and (5) do all things which are necessary to further the purposes and intent of this article.


WVC 31-15A-13 §31-15A-13. Prohibition on funds inuring to the benefit of or being distributable to water development board; transactions between the water development board and officers having certain interests in such transactions.

No part of the infrastructure fund or the West Virginia infrastructure revenue debt service fund shall inure to the benefit of or be distributable to the water development board directors or officers of the water development authority except that the water development authority is authorized and empowered to pay reasonable compensation, other than to members of the water development board, including the chairman, vice chairman, secretary-treasurer for services rendered and to make loans and exercise its other powers as previously specified in furtherance of its corporate purpose: Provided, That no loans shall be made, and no property shall be purchased or leased from, or sold, leased or otherwise disposed of, to any water development board member or officer of the water development authority.


WVC 31 - 15 A- 14 §31-15A-14. Termination or dissolution.

Upon the termination or dissolution of the water development authority, all rights and properties of the water development authority with respect to the infrastructure fund shall pass to and be vested in the state, subject to the rights of lienholders and other creditors.


WVC 31 - 15 A- 15 §31-15A-15. Projects not to be considered public improvements; competitive bid requirements.
(a) No project or infrastructure project acquired, constructed, maintained or financed, in whole or in part, by the water development authority shall be considered to be a "public improvement" within the meaning of the provisions of article five-a, chapter twenty-one of this code as a result of the financing.

(b) The state and its subdivisions shall, except as provided in subsection (c) of this section, solicit competitive bids and require the payment of prevailing wage rates as provided in article five-a, chapter twenty-one of this code for every project or infrastructure project funded pursuant to this article exceeding twenty-five thousand dollars in total cost.

Following the solicitation of the bids, the construction contract shall be awarded to the lowest qualified responsible bidder, who shall furnish a sufficient performance and payment bond: Provided, That the state and its subdivisions may reject all bids and solicit new bids on the project.

(c) This section does not:

(1) Apply to work performed on construction or repair projects not exceeding a total cost of fifty thousand dollars by regular full-time employees of the state or its subdivisions: Provided, That no more than fifty thousand dollars shall be expended on an individual project in a single location in a twelve-month period;

(2) Prevent students enrolled in vocational educational schools from being used in the construction or repair projects when such use is a part of the students' training program;

(3) Apply to emergency repairs to building components and systems: Provided, That the term "emergency repairs" means repairs that, if not made immediately, will seriously impair the use of the building components and systems or cause danger to those persons using the building components and systems; or

(4) Apply to any situation where the state or a subdivision of the state comes to an agreement with volunteers, or a volunteer group, by which the governmental body will provide construction or repair materials, architectural, engineering, technical or any other professional services and the volunteers will provide the necessary labor without charge to, or liability upon, the governmental body: Provided, That the total cost of the construction or repair projects does not exceed fifty thousand dollars.

(d) The provisions of subsection (b) of this section do not apply to privately owned projects or infrastructure projects constructed on lands not owned by the state or a subdivision of the state.


WVC 31 - 15 A- 16 §31-15A-16. Dedication of severance tax proceeds.

     (a) There shall be dedicated an annual amount from the collections of the tax collected pursuant to article thirteen-a, chapter eleven of this code for the construction, extension, expansion, rehabilitation, repair and improvement of water supply and sewage treatment systems and for the acquisition, preparation, construction and improvement of sites for economic development in this state as provided in this article.

     (b) Notwithstanding any other provision of this code to the contrary, beginning on July 1, 1995, the first $16 million of the tax collected pursuant to article thirteen-a, chapter eleven of this code shall be deposited to the credit of the West Virginia Infrastructure General Obligation Debt Service Fund created pursuant to section three, article fifteen-b of this chapter: Provided, That beginning on July 1, 1998, the first $24 million of the tax annually collected pursuant to article thirteen-a of this code shall be deposited to the credit of the West Virginia Infrastructure General Obligation Debt Service Fund created pursuant to section three, article fifteen-b of this chapter: Provided, however, That subject to the conditions, limitations, exclusions and constraints prescribed by subsection (c) of this section, beginning on July 1, 2013, the amount deposited under this subsection to the credit of the West Virginia Infrastructure General Obligation Debt Service Fund created pursuant to section three, article fifteen-b of this chapter shall be the first $23 million of the tax annually collected pursuant to article thirteen- a, chapter eleven of this code.

     (c) Notwithstanding any provision of subsection (b) of this section to the contrary: (1) None of the collections from the tax imposed pursuant to section six, article thirteen-a, chapter eleven of this code shall be so dedicated or deposited; and (2) the portion of the tax imposed by article thirteen-a, chapter eleven and dedicated for purposes of Medicaid and the Division of Forestry pursuant to section twenty-a of said article thirteen-a shall remain dedicated for the purposes set forth in that section twenty-a.

     (d) On or before May 1 of each year, commencing May 1, 1995, the council, by resolution, shall certify to the Treasurer and the Water Development Authority the principal and interest coverage ratio and amount for the following fiscal year on any infrastructure general obligation bonds issued pursuant to the provisions of article fifteen-b of this chapter.
WVC 31-15A-17 §31-15A-17. Water development authority empowered to issue infrastructure revenue bonds and refunding bonds; creation of infrastructure revenue debt service fund; funding of infrastructure revenue debt service fund; requirements and manner of such issuance.
(a) To accomplish the purpose and intent of this article, the water development authority is hereby empowered at the written request of the council to issue from time to time infrastructure revenue bonds of the state in such principal amounts as the council deems necessary to make loans and loan guarantees and other forms of financial assistance to project sponsors for one or more projects or infrastructure projects: Provided, That the water development authority may not issue any such bonds, other than refunding bonds, unless the council by resolution determines that the aggregate cost of the projects or infrastructure projects expected to be constructed during any annual period exceeds (1) the projected annual infrastructure revenues for the same period, and (2) the principal and interest payments not otherwise pledged to the infrastructure revenue debt service fund that are due the water development authority on all outstanding loans previously made by the water development authority pursuant to the provisions of this article.

(b) The proceeds of infrastructure revenue bonds shall be used solely for the purpose of making loans and loan guarantees and other forms of financial assistance to sponsors of one or more projects or infrastructure projects, and shall be deposited in one or more special accounts with the trustee under the trust agreement securing such bonds and disbursed from time to time for projects or infrastructure projects in accordance with this article: Provided, That notwithstanding any provision of this code to the contrary, twenty percent of the funds deposited in the special account shall be dedicated for the purpose of providing funding for costs of infrastructure projects as defined in subsection (l), section two, of this article.

(c) The water development authority may not authorize the disbursement of any proceeds of infrastructure revenue bonds unless it has received documentation from the council pursuant to the provisions of section ten of this article.

(d) There is hereby created in the water development authority a special fund which shall be designated and known as the "West Virginia Infrastructure Revenue Debt Service Fund," into which shall be transferred solely from the loan repayments deposited in the infrastructure fund the amounts certified by the director of the water development authority as necessary to pay the principal, premium, if any, and interest on infrastructure revenue bonds and any reserve requirements, subject to the terms of any agreement with the holders of the infrastructure revenue bonds. All amounts deposited in the West Virginia infrastructure revenue debt service fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any infrastructure revenue bonds authorized by this article: Provided, That amounts on deposit in the fund may be used to establish or maintain reserves created for the purposes of securing such infrastructure revenue bonds. The pledge shall be valid and binding from the time the pledge is made, and the West Virginia infrastructure revenue debt service fund so pledged shall immediately be subject to the lien of the pledge without any physical delivery thereof or further act, and the lien of any such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the water development authority irrespective of whether the parties have notice thereof.

(e) Except as may otherwise be expressly provided in this article or by resolution of the water development authority, every issue of infrastructure revenue bonds shall be special obligations of the water development authority payable solely from amounts in the West Virginia infrastructure revenue debt service fund, and the reserves created for this purpose by the water development authority, without preference or priority among the bonds regardless of when issued, subject only to any agreements with the holders of any bonds to the contrary. All such bonds are hereby declared to be negotiable instruments.

(f) Infrastructure revenue bonds shall be authorized by resolution of the water development authority. These bonds shall bear such dates and shall mature at such times, in case of any note or renewal thereof not exceeding five years from the date of issue of the original note, and in the case of any bond not exceeding fifty years from the date of issue, as the resolution may provide. Infrastructure revenue bonds shall bear interest at a rate or rates, including variable rates, shall be taxable or tax-exempt, shall be in the denominations, shall be in registered form, shall carry the registration privileges, shall be payable in the medium and place of payment, and shall be subject to the terms of redemption as the water development authority may authorize. Infrastructure revenue bonds may be sold by the water development authority at public or private sale at the price the water development authority determines in consultation with the council. Infrastructure revenue bonds shall be executed by the chairman and the vice chairman of the water development authority, either or both of whom may use a facsimile signature. The official seal of the water development authority or a facsimile thereof shall be affixed thereto or printed thereon and attested by manual or facsimile signature by the secretary-treasurer of the water development authority. If any officer whose signature, or a facsimile of whose signature appears on any infrastructure revenue bond ceases to be such officer before delivery of such bond, such signature or facsimile is nevertheless sufficient for all purposes to the same extent as if he or she had remained in office until such delivery, and if the seal of the water development authority has been changed after a facsimile has been imprinted on such bond, the facsimile will continue to be sufficient for all purposes.

(g) Any resolution authorizing any infrastructure revenue bonds may contain provisions, subject to any agreement with bondholders or noteholders which may then exist, which agreements shall be part of the contract with the holder thereof, with respect to the pledge of or other use and disposition of amounts in the infrastructure revenue debt service fund; the setting aside of reserve funds; the disposition of any assets of the water development authority; limitations on the purpose to which the proceeds of sale of bonds may be applied; the authorization of notes issued in anticipation of the issuance of bonds; an agreement of the water development authority to do all things necessary for the authorization, issuance and sale of such bonds in such amounts as may be necessary for the timely retirement of such notes; limitations on the issuance of additional bonds; the terms upon which additional bonds may be issued and secured; the refunding of outstanding bonds and the renewal of outstanding notes; the procedures, if any, by which the terms of any contract with bondholders or noteholders may be amended or abrogated; the amount of bonds the holders of which must consent thereto and the manner in which such consent may be given; and any other matter which in any way affects the security for or protection of the bonds.

(h) In the event that the sum of all reserves pledged to the payment of the bonds is less than the minimum reserve requirements established in any resolution or resolutions authorizing the issuance of the bonds, the chairman or the director of the water development authority shall certify, on or before the first day of December of each year, the amount of such deficiency to the governor of the state for inclusion, if the governor shall so elect, of the amount of such deficiency in the budget to be submitted to the next session of the Legislature for appropriation to the water development authority to be pledged for payment of such bonds: Provided, That the Legislature shall not be required to make any appropriations so requested, and the amount of such deficiencies shall not constitute a debt or liability of the state.

(i) Neither the officers or board members of the water development authority, nor any person executing the infrastructure revenue bonds, shall be liable personally on the bonds or be subject to any personal liability or accountability by reason of the issuance thereof.


WVC 31 - 15 A- 17 A §31-15A-17a. Infrastructure revenue bonds payable from A. James Manchin Fund.
Notwithstanding any other provision of this code to the contrary, the Water Development Authority may issue, in accordance with the provisions of section seventeen of this article, infrastructure revenue bonds payable from the A. James Manchin Fund created by section nine, article fifteen-a, chapter twenty-two of this code and such other sources as may be legally pledged for such purposes other than the West Virginia Infrastructure Revenue Debt Service Fund created by section seventeen of this article.


WVC 31 - 15 A- 17 B §31-15A-17b. Infrastructure lottery revenue bonds for watershed compliance projects.

     (a) (1) The Chesapeake Bay has been identified as an impaired water body due to excessive nutrients entering the bay from various sources in six states, including wastewater facilities in West Virginia. To restore the Chesapeake Bay, the states have agreed to reduce their respective nutrient contributions to the Chesapeake Bay.

     (2) The Greenbrier River Watershed in southeastern West Virginia which encompasses approximately 1,646 square miles, the majority of which lies within Pocahontas, Greenbrier, Monroe and Summers counties, has been identified as an impaired water body due to excessive levels of fecal coliform and phosphorus entering the watershed from various sources, including wastewater facilities in West Virginia. To restore the Greenbrier River Watershed, the state agrees to reduce the fecal coliform and phosphorus contributions to the Greenbrier River Watershed.

     (b) Notwithstanding any other provision of this code to the contrary, the Water Development Authority may issue, in accordance with the provisions of section seventeen of this article, infrastructure lottery revenue bonds payable from the West Virginia Infrastructure Lottery Revenue Debt Service Fund created by section nine of this article and such other sources as may be legally pledged for such purposes other than the West Virginia Infrastructure Revenue Debt Service Fund created by section seventeen of this article.

     (c) The council shall direct the Water Development Authority to issue bonds in one or more series when it has approved Chesapeake Bay watershed compliance projects and Greenbrier River watershed compliance projects with an authorized permitted flow of four hundred thousand gallons per day or more. The proceeds of the bonds shall be used solely to pay costs of issuance, fund a debt service reserve account, capitalize interest, pay for security instruments necessary to market the bonds and to make grants to governmental instrumentalities of the state for the construction of approved Chesapeake Bay watershed compliance projects and Greenbrier River watershed compliance projects. To the extent funds are available in the West Virginia Infrastructure Lottery Revenue Debt Service Fund that are not needed for debt service, the council may direct the Water Development Authority to make grants to project sponsors for the design or construction of approved Chesapeake Bay watershed compliance projects and Greenbrier River watershed compliance projects: Provided, That the council shall direct the Water Development Authority to provide from moneys in the Lottery Revenue Debt Service Fund not needed to pay debt service in fiscal year 2013 a grant of $6 million to a Chesapeake Bay watershed compliance project which opened bids on December 28, 2011, and further provided that such Chesapeake Bay watershed compliance project shall receive no further grant funding under this section after receipt of the $6 million grant.

     (d) No later than June 30, 2012, each publicly owned facility with an authorized permitted flow of four hundred thousand gallons per day or more that is subject to meeting Chesapeake Bay compliance standards or Greenbrier River watershed compliance standards shall submit to the council a ten-year projected capital funding plan for Chesapeake Bay watershed compliance projects or Greenbrier River watershed compliance projects, as the case may be, including a general project description, cost estimate and estimated or actual project start date and project completion date, if any. The council shall timely review the submitted capital funding plans and forward approved plans to the Water Development Authority for further processing and implementation pursuant to this article. If the council finds a plan to be incomplete, inadequate or otherwise problematic, it shall return the plan to the applicant with comment on the plan shortcomings. The applicant may then resubmit to council an amended capital funding plan for further consideration pursuant to the terms of this subsection.

     (e) Upon approval, each proposed Chesapeake Bay watershed compliance project or Greenbrier River watershed compliance project, or portion of a larger project, which portion is dedicated to compliance with nutrient standards, or fecal coliform and phosphorus standards, established for the protection and restoration of the Chesapeake Bay or the Greenbrier River watershed, as the case may be, shall be eligible for grant funding by funds generated by the infrastructure lottery revenue bonds described in subsection (b) of this section. At the request of the applicant, the remaining percentage of project funding not otherwise funded by grant under the provisions of this article may be reviewed as a standard project funding application.

     (f) No later than December 1, 2012, the Water Development Authority shall report to the Joint Committee on Government and Finance the total cost of Chesapeake Bay watershed compliance projects and the Greenbrier River watershed compliance projects and the proposed grant awards for each eligible project. From the proceeds of bonds issued under subsection (b) of this section, the council shall direct the Water Development Authority to make grants to eligible projects ready to proceed to construction and those grant awards shall be pro rated to an equal percentage of total eligible costs among all applicants for each eligible project as certified by the Water Development Authority in its report to the Joint Committee on Government and Finance dated November 28, 2012: Provided, That the final project, and its financing, is consistent with the scope of the eligible project included in the council's approval on December 5, 2012.

     (g) Eligible projects that have obtained project financing prior to December 31, 2012, may apply to the council for funding under the provisions of this section. These applications shall be processed and considered as all other eligible projects, and a grant funding awarded shall, to the extent allowed by law, be dedicated to prepay all or a portion of debt previously incurred by governmental instrumentalities of the state for required Chesapeake Bay nutrient removal projects or Greenbrier River watershed fecal coliform and phosphorus removal projects, subject to the bond covenants and contractual obligations of the borrowing governmental entity. However, any private portion of funding provided by agreement between a political subdivision and one or more private entities, either by direct capital investment or debt service obligation, shall not be eligible for grant funding under the provisions of this article.
WVC 31-15A-18 §31-15A-18. Trustee for holders of infrastructure revenue bonds; contents of trust agreement.
(a) Any infrastructure revenue bonds issued by the water development authority under this article shall be secured by a trust agreement between the water development authority and a corporate trustee, which trustee may be any trust company or banking institution having the powers of a trust company within this state.

(b) Any trust agreement may pledge or assign the infrastructure revenue debt service fund. Any trust agreement or any resolution providing for the issuance of such bonds may contain such provisions for protecting and enforcing the rights and remedies of the bondholders or noteholders as are reasonable and proper and not in violation of law, including the provisions contained in section seventeen of this article, and covenants setting forth the duties of the water development authority in respect to the payment of the principal of and interest, charges and fees on loans made to, or bond purchases from, governmental agencies from the proceeds of the bonds, and the custody, safeguarding and application of all moneys. Any banking institution or trust company incorporated under the laws of this state which may act as depository of the proceeds of bonds or of the infrastructure debt service fund shall furnish such indemnifying bonds or pledge securities as are required by the water development authority. The trust agreement may set forth the rights and remedies of the bondholders and noteholders and of the trustee and may restrict individual rights of action by bondholders and noteholders as customarily provided in trust agreements or trust indentures securing similar bonds and notes. The trust agreement may contain such other provisions as the water development authority deems reasonable and proper for the security of the bondholders or noteholders. All expenses incurred in carrying out the provisions of any such trust agreement may be treated as part of the cost of the construction, renovation, repair, improvement or acquisition of a project or infrastructure project.


WVC 31-15A-19 §31-15A-19. Legal remedies of infrastructure revenue bondholders or noteholders and trustees.
Any holder of infrastructure revenue bonds issued pursuant to this article and the trustee under any trust agreement, except to the extent the rights given by this article may be restricted by the applicable resolution or trust agreement, may by civil action, mandamus or other proceedings protect and enforce any rights granted under the laws of this state or granted under this article, by the trust agreement or by the resolution in the issuance of the bonds, and may enforce and compel the performance of all duties required by this article, pursuant to the trust agreement or resolution, to be performed by the water development authority or any officer thereof.


WVC 31-15A-20 §31-15A-20. Infrastructure revenue bonds lawful investments.
All infrastructure revenue bonds issued pursuant to this article shall be lawful investments for banking institutions, societies for savings, building and loan associations, savings and loan associations, deposit guarantee associations, trust companies, and insurance companies, including domestic for life and domestic not for life insurance companies.


WVC 31-15A-21 §31-15A-21. Purchase and cancellation of infrastructure revenue bonds.
(a) The water development authority, subject to such agreements with noteholders or bondholders as may then exist, shall have the power, from any funds available therefor, to purchase or redeem infrastructure revenue bonds of the water development authority.

(b) If the infrastructure revenue bonds are then redeemable, the price of the purchase shall not exceed the redemption price then applicable, plus accrued interest to the next interest payment date thereon. If the infrastructure revenue bonds are not then redeemable, the price of the purchase shall not exceed the redemption price applicable on the first date after the purchase upon which the bonds become subject to redemption, plus accrued interest to such date. Upon purchase or redemption, the bonds shall be canceled.


WVC 31-15A-22 §31-15A-22. Refunding revenue bonds.
Any infrastructure revenue bonds issued pursuant to the provisions of this article and at any time outstanding may at any time and from time to time be refunded by the water development authority by the issuance of its refunding revenue bonds in an amount it deems necessary to refund the principal of the bonds to be refunded, together with any unpaid interest thereon, to provide additional funds for the water development authority to accomplish the purpose of this article, and to pay any premiums and commissions necessary to be paid in connection therewith. Any refunding may be effected whether the infrastructure revenue bonds to be refunded shall have then matured or shall thereafter mature: Provided, That the holders of any infrastructure revenue bonds so to be refunded shall not be compelled without their consent to surrender their infrastructure revenue bonds for payment or exchange prior to the date on which they are payable or, if they are called for redemption, prior to the date on which they are by their terms subject to redemption. Any refunding revenue bonds issued pursuant to this article shall be payable from the West Virginia infrastructure revenue debt service fund, and shall be subject to the provisions contained in section seventeen of this article, and shall be secured in accordance with the provisions of sections seventeen and eighteen of this article.


WVC 31-15A-23 §31-15A-23. Infrastructure revenue bonds not debt of state, county, municipality or any political subdivision.
Infrastructure revenue bonds issued pursuant to the provisions of this article shall not constitute a debt or a pledge of the faith and credit or taxing power of this state or of any county, municipality or any other political subdivision of this state. The holders or owners thereof shall have no right to have taxes levied by the Legislature or the taxing authority of any county, municipality or any other political subdivision of this state for the payment of the principal thereof or interest thereon. The bonds shall be payable solely from the revenues and funds pledged for their payment as authorized by this article. All such bonds shall contain on the face thereof a statement to the effect that the bonds, as to both principal and interest, are not debts of the state or any county, municipality or political subdivision thereof, but are payable solely from revenues and funds pledged for their payment.


WVC 31-15A-24 §31-15A-24. Infrastructure revenue bonds exempt from taxation.
The exercise of the powers granted to the water development authority by this article will be in all respects for the benefit of the people of the state, for the improvement of their health, safety, convenience and welfare and for the enhancement of their residential, agricultural, recreational, economic, commercial and industrial opportunities and is for a public purpose. As the construction, acquisition, repair or renovation of projects or infrastructure projects will constitute the performance of essential governmental functions, the water development authority shall not be required to pay any taxes or assessments upon any project or upon any property acquired or used by the water development authority or upon the income therefrom. The infrastructure revenue bonds and all interest and income thereon shall be exempt from all taxation by this state, or any county, municipality, political subdivision or agency thereof, except estate taxes.


WVC 31 - 15 A- 17 B §31-15A-17b. Infrastructure lottery revenue bonds for watershed compliance projects.
     (a)(1) The Chesapeake Bay has been identified as an impaired water body due to excessive nutrients entering the Bay from various sources in six states, including wastewater facilities in West Virginia. To restore the Chesapeake Bay, the states have agreed to reduce their respective nutrient contributions to the Chesapeake Bay.

     (2) The Greenbrier River Watershed in southeastern West Virginia which encompasses approximately 1,646 square miles, the majority of which lies within Pocahontas, Greenbrier, Monroe and Summers counties, has been identified as an impaired water body due to excessive levels of fecal coliform and phosphorus entering the Watershed from various sources, including wastewater facilities in West Virginia. To restore the Greenbrier River Watershed, the state agrees to reduce the fecal coliform and phosphorus contributions to the Greenbrier River Watershed.

     (b) Notwithstanding any other provision of this code to the contrary, the Water Development Authority may issue, in accordance with the provisions of section seventeen of this article, infrastructure lottery revenue bonds payable from the West Virginia infrastructure lottery revenue debt service fund created by section nine of this article and such other sources as may be legally pledged for such purposes other than the West Virginia infrastructure revenue debt service fund created by section seventeen of this article.

     (c) The council shall direct the Water Development Authority to issue bonds in one or more series when it has approved Chesapeake Bay watershed compliance projects and Greenbrier River watershed compliance projects with an authorized permitted flow of four hundred thousand gallons per day or more. The proceeds of the bonds shall be used solely to pay costs of issuance, fund a debt service reserve account, capitalize interest, pay for security instruments necessary to market the bonds and to make grants to governmental instrumentalities of the state for the construction of approved Chesapeake Bay watershed compliance projects and Greenbrier River watershed compliance projects. To the extent funds are available in the West Virginia Infrastructure Lottery Revenue Debt Service Fund that are not needed for debt service, the council may direct the Water Development Authority to make grants to project sponsors for the design or construction of approved Chesapeake Bay watershed compliance projects and Greenbrier River watershed compliance projects.

     (d) No later than June 30, 2012, each publicly owned facility with an authorized permitted flow of 400,000 gallons per day or more that is subject to meeting Chesapeake Bay compliance standards or Greenbrier River watershed compliance standards shall submit to the council a ten year projected capital funding plan for Chesapeake Bay watershed compliance projects or Greenbrier River watershed compliance projects, as the case may be, including a general project description, cost estimate and estimated or actual project start date and project completion date, if any. The council shall timely review the submitted capital funding plans and forward approved plans to the Water Development Authority for further processing and implementation pursuant to this article. If the council finds a plan to be incomplete, inadequate or otherwise problematic, it shall return the plan to the applicant with comment on the plan shortcomings. The applicant may then resubmit to council an amended capital funding plan for further consideration pursuant to the terms of this subsection.

     (e) Upon approval, each proposed Chesapeake Bay watershed compliance project or Greenbrier River watershed compliance project, or portion of a larger project, which portion is dedicated to compliance with nutrient standards, or fecal coliform and phosphorus standards, established for the protection and restoration of the Chesapeake Bay or the Greenbrier River Watershed, as the case may be, shall be eligible for grant funding by funds generated by the infrastructure lottery revenue bonds described in section (b) of this section. At the request of the applicant, the remaining percentage of project funding not otherwise funded by grant under the provisions of this article may be reviewed as a standard project funding application.

     (f) No later than December 1, 2012, the Water Development Authority shall report to the Joint Committee on Government and Finance the total cost of Chesapeake Bay watershed compliance projects and the Greenbrier River watershed compliance projects and the proposed grant awards for each eligible project. Grant awards shall be of equal ratio among all applicants of the total cost of each eligible project.

     (g) Eligible projects that have obtained project financing prior to December 31, 2011 may apply to the council for funding under the provisions of this section. These applications shall be processed and considered as all other eligible projects, and any grant funding awarded shall, to the extent allowed by law, be dedicated to prepay all or a portion of debt previously incurred by governmental instrumentalities of the state for required Chesapeake Bay nutrient removal projects or Greenbrier River watershed fecal coliform and phosphorus removal projects, subject to the bond covenants and contractual obligations of the borrowing governmental entity. However, any private portion of funding provided by agreement between a political subdivision and one or more private entities, either by direct capital investment or debt service obligation, shall not be eligible for grant funding under the provisions of this article.
WVC 31 - 15 B- ARTICLE 15B. INFRASTRUCTURE BONDS.


WVC 31 - 15 B- 1 §31-15B-1. Definitions.
For purposes of this article and article fifteen-a of this chapter:

(a) "Council" means the West Virginia infrastructure and jobs development council created in section three, article fifteen-a of this chapter;

(b) "Infrastructure amendment" means the amendment to the constitution of this state entitled "infrastructure amendment" as approved by referendum in the month of November, one thousand nine hundred ninety-four;

(c) "Infrastructure general obligation bond" means any bond or bonds issued by the state pursuant to section two of this article;

(d) "Water development authority" means the West Virginia water development authority established under article one, chapter twenty-two-c of this code, or any successor to all or any substantial part of its powers and duties.


WVC 31 - 15 B- 2 §31-15B-2. Infrastructure general obligation bonds; amount; when may issue.
Bonds of the state of West Virginia, under authority of the infrastructure improvement amendment of 1994, of the par value not to exceed in the aggregate three hundred million dollars, are hereby authorized to be issued and sold solely for the construction, extension, expansion, rehabilitation, repair and improvement of water supply and sewage treatment systems and for the acquisition, preparation, construction and improvement of sites for economic development as provided for by the constitution and the provisions of this article.

These bonds may be issued by the governor upon resolution by the infrastructure council and certification to the governor. The bonds shall bear such date and mature at such time, bear interest at such rate not to exceed eight percent per annum, be in such amounts, be in such denominations, be in such registered form, carry such registration privileges, be due and payable at such time and place and in such amounts, and subject to such terms of redemption as such resolution may provide: Provided, That in no event may the amount of bonds outstanding exceed an amount for which twenty-four million dollars would not be sufficient to provide annual service on the total amount of debt outstanding.

Both the principal and interest of the bonds shall be payable in the lawful money of the United States of America and the bonds and the interest thereon shall be exempt from taxation by the state of West Virginia, or by any county, district or municipality thereof, which fact shall appear on the face of the bonds as part of the contract with the holder of the bond.

The bonds shall be executed on behalf of the state of West Virginia, by the manual or facsimile signature of the treasurer thereof, under the great seal of the state or a facsimile thereof, and countersigned by the manual or facsimile signature of the auditor of the state.


WVC 31 - 15 B- 3 §31-15B-3. Creation of debt service fund; disbursements to pay

debt service on infrastructure general obligation bonds.
There is hereby created a special account in the state treasury, which shall be designated and known as the "West Virginia Infrastructure General Obligation Debt Service Fund", into which shall be deposited amounts pursuant to the provisions of section sixteen, article fifteen-a of this chapter, as well as any amounts appropriated by the Legislature.


WVC 31 - 15 B- 4 §31-15B-4. Infrastructure general obligation debt service fund;

sources used to pay bonds and interest; investment of remainder.

All money from any and all appropriations made by the state, all moneys transferred pursuant to the provisions of section sixteen, article fifteen-a of this chapter and all moneys from any other source whatsoever which is made liable by law for the payment of the principal of such bonds or the interest thereon shall be deposited into the infrastructure general obligation debt service fund. Moneys shall be kept by the treasurer in a separate account, under the designation aforesaid, and all moneys belonging to the infrastructure general obligation debt service fund shall be deposited in the state treasury to the credit thereof.

This fund shall be applied by the treasurer to the payment of the principal and interest on such bonds as shall become due as herein provided. Any funds remaining after certification of the amount necessary for the payment of principal and interest as provided by section sixteen, article fifteen-a and expenses authorized pursuant to section thirteen of this article shall be deposited to the credit of the infrastructure fund.


WVC 31 - 15 B- 5 §31-15B-5. Covenants of state.
The state of West Virginia covenants and agrees with the holders of the bonds issued pursuant hereto as follows: (1) That such bonds shall constitute a direct and general obligation of the state of West Virginia; (2) that the full faith and credit of the state is hereby pledged to secure the payment of the principal and interest of such bonds; (3) that an annual state tax shall be collected in an amount sufficient to pay as it may accrue the interest on such bonds and the principal thereof; and (4) that such tax shall be levied in any year only to the extent that the moneys transferred to the infrastructure general obligation debt service fund as provided in section sixteen, article fifteen-a of this chapter which are irrevocably set aside and appropriated for and applied to the payment of the interest on and principal of any bond becoming due and payable in such year are insufficient therefor.


WVC 31 - 15 B- 6 §31-15B-6. Sale by governor; minimum price.
The governor shall sell the bonds herein authorized at such time or times as the council, by resolution, may determine necessary to provide funds for purposes set forth in this article and article fifteen-a of this chapter. Sales shall be at not less than par and accrued interest.

The bonds must be offered for competitive bids from recognized financial investment institutions before the bonds may be sold: Provided, That the bid process is not subject to the provisions of article three-a, chapter five-a of this code. Any and all of the bids may be rejected. If the bonds are not sold pursuant to the competitive bid process, the bonds may, within sixty days after the date the bids are received, be sold at private sale: Provided, however, That no private sale shall be made at a price less than the highest bid received.


WVC 31 - 15 B- 7 §31-15B-7. Prohibition on funds inuring to the benefit of or being distributable to directors or officers; transactions between the council and West Virginia water development authority and directors or officers having certain interests in such transactions.
No part of the infrastructure fund shall inure to the benefit of or be distributable to the commissioners of the public service commission, the council, or the West Virginia water development authority's directors or officers. The council may approve and the water development authority make loans and exercise other powers as previously specified in furtherance of their corporate purpose: Provided, That no loans shall be made, nor shall any property be purchased or leased from, or sold, leased or otherwise disposed of, to any commissioner, director or officer of the council, the public service commission or the West Virginia water development authority.


WVC 31 - 15 B- 8 §31-15B-8. Infrastructure bonds lawful investments.
All infrastructure bonds issued pursuant to this article shall be lawful investments for banking institutions, societies for savings, building and loan associations, savings and loan associations, deposit guarantee associations, trust companies, insurance companies, including domestic for life and domestic not for life insurance companies.


WVC 31 - 15 B- 9 §31-15B-9. Refunding bonds.
Any infrastructure general obligation bonds which are outstanding may at any time be refunded by the issuance of refunding bonds in an amount deemed necessary to refund the principal of the bonds to be refunded, together with any unpaid interest thereon; to accomplish the purpose of this article and article fifteen-a of this chapter; and to pay any premiums and commissions necessary to be paid in connection therewith. Any refunding may be effected whether the infrastructure general obligation bonds to be refunded shall have then matured or shall thereafter mature. Any refunding bonds issued pursuant to this article shall be payable from the infrastructure general obligation bond debt service fund, and shall be subject to the provisions contained in section eleven, article fifteen-a of this chapter and shall be secured in accordance with the provisions of this article.


WVC 31 - 15 B- 10 §31-15B-10. Termination or dissolution.
Upon the termination or dissolution of the West Virginia water development authority, all rights and properties of the West Virginia water development authority with respect to the infrastructure fund shall pass to and be vested in the state, subject to the rights of bondholders, lienholders and other creditors.


WVC 31 - 15 B- 11 §31-15B-11. Treasurer to determine financial advisor.
The treasurer shall select a competent person or firm to serve as financial advisor for the issuance and sale of general obligation bonds issued pursuant to this article.


WVC 31 - 15 B- 12 §31-15B-12. Governor to determine bond counsel.
The governor shall select a competent person or firm to serve as bond counsel who shall be responsible for the issuance of a final approving opinion regarding the legality of the sale of general obligation bonds issued pursuant to this article. Notwithstanding the provisions of article three, chapter five of this code, bond counsel may represent the council in court, render advice to the council and provide other legal services as may be requested by the council regarding any bond issuance pursuant to this article and all other matter relating to the bond issue.


WVC 31 - 15 B- 13 §31-15B-13. Approval and payment of all necessary expenses.
All necessary expenses, including legal expenses, incurred in the issuance of any general obligation bonds pursuant to this article shall be paid out of the infrastructure general obligation debt service fund. The amount of any expenses incurred shall be certified to the water development authority.


WVC 31 - 15 C- ARTICLE 15C. Broadband Deployment.

WVC 31 - 15 C- 1 §31-15C-1. Legislative findings and purpose.
The Legislature finds as follows:

(1) That it is a primary goal of the Governor, the Legislature and the citizens of this state, by the year two thousand ten, to make every municipality, community, and rural area in this state, border to border, accessible to internet communications through the expansion, extension and general availability of broadband services and technology.

(2) That although market-driven deployment has extended broadband access to most of West Virginia's cities, towns, and other concentrated population areas, some areas of the state, mostly rural, remain unserved.

(3) That based upon the same network principles that providers of telephony services have faced since the inception of the telecommunications industry, rising fixed costs and technological limitations prohibit broadband networks from being extended into rural areas where the level of demand in sparsely populated areas may not justify the required costs of construction.

(4) That the unique topography and demography of this state that hinders the provision of broadband access to rural areas of the state specifically disadvantages the elderly and low-income households that are the least likely to own computers or subscribe to internet service. In light of these topographical and demographic challenges, any attempt to fill the gaps in West Virginia's broadband availability must be organized according to the levels of demand in the various unserved areas to which service is sought to be extended.

(5) That, in particular, fair and equitable access to twenty-first century technology that will maximize the functionality of educational resources and educational facilities that are conducive to enabling our children to be exposed to and to receive the best of future teaching and learning is absolutely essential to this state. A quality educational system of the twenty-first century should have access to the best technology tools and processes. Administrators should have, among other things, the electronic resources to monitor student performance, to manage data, and to communicate effectively. In the classroom, every teacher in every school should be provided with online access to educational technology resources and the ability to deliver content standard and objectives to the students of West Virginia. Schools of the twenty-first century require facilities that accommodate changing technologies and twenty-first century instructional processes.

(6) Accordingly, it is the purpose of the Legislature to provide for the development of plans, processes and procedures to be employed and dedicated to extending broadband access to West Virginians, and to their families, by stimulating demand for those services and for encouraging and facilitating the construction of the necessary infrastructure to meet their needs and demands.

(7) In implementing this initiative, progress by market forces and industry is to be respected, and the Legislature intends that governmental assistance and funding is to be used only in those areas without broadband service and not to duplicate or displace broadband service in areas already served or where industry feasibly can be expected to offer services in the reasonably foreseeable future.


WVC 31 - 15 C- 2 §31-15C-2. Definitions.

     For the purposes of this article:

     (1) "Broadband" or "broadband service" means any service providing advanced telecommunications capability with the same downstream data rate and upstream data rate as is specified by the Federal Communications Commission and that does not require the end-user to dial up a connection that has the capacity to always be on, and for which the transmission speeds are based on regular available bandwidth rates, not sporadic or burstable rates, with latency suitable for real-time applications and services such as VoIP and video conferencing, and with monthly usage capacity reasonably comparable to that of residential terrestrial fixed broadband offerings in urban areas: Provided, That as the Federal Communications Commission updates the downstream data rate and the upstream data rate the Council will publish the revised data rates in the State Register within sixty days of the federal update.

     (2) "Broadband demand promotion project" means a statewide or regional project to undertake activities to promote demand for broadband services and broadband applications.

     (3) "Broadband deployment project" means a project to provide broadband services in a type 2 and/or type 3 unserved area, as defined in section six of this article.

     (4) "Council" means the Broadband Deployment Council.

     (5) "Downstream data rate" means the transmission speed from the service provider source to the end-user.

     (6) "Upstream data rate" means the transmission speed from the end-user to the service provider source.

     (7) "Unserved area" means a community that has no access to broadband service.
WVC 31 - 15 C- 3 §31-15C-3. Broadband Deployment Council established; members of council; administrative support.

     (a) The Broadband Deployment Council is 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 are considered and held to be, and are hereby determined to be, essential governmental functions and for a public purpose. The council is created under the Department of Commerce for administrative, personnel and technical support services only.

     (b) The council shall consist of fifteen voting members, designated as follows:

     (1) The Governor or his or her designee;

     (2) The Secretary of Commerce or his or her designee;

     (3) The Secretary of Administration or his or her designee;

     (4) The Director of Homeland Security and Emergency Management or his or her designee;

     (5) The State Superintendent of Schools or his or her designee; and

     (6) Ten public members that serve at the will and pleasure of the Governor and are appointed by the Governor with the advice and consent of the Senate, as follows:

     (i) One member representing employees of communications and cable providers who is a member or representative of a union representing communications workers;

     (ii) One member representing the interests of the business community in this state;

     (iii) One member representing incumbent local exchange carriers who provide broadband services in this state;

     (iv) One member representing cable operators who provide broadband services in this state;

     (v) One member representing competitive local exchange carriers who provide broadband services in this state;

     (vi) One member representing broadband equipment or device manufacturers;

     (vii) One member representing higher education or secondary education; and

     (viii) Three members representing the general public who are residents of the state, one of whom shall represent rural communities, and who may not reside in the same congressional district.

     (7) In addition to the fifteen voting members of the council, the President of the Senate shall name two senators from the West Virginia Senate and the Speaker of the House shall name two delegates from the West Virginia House of Delegates, each to serve in the capacity of an ex officio, nonvoting advisory member of the council.

     (c) The Secretary of Commerce or his or her designee shall chair the council and appoint one of the other council members to serve as vice chair. In the absence of the Secretary of Commerce or his or her designee, the vice chair shall serve as chair. The council shall appoint a secretary-treasurer who need not be a member of the council and who, among other tasks or functions designated by the council, shall keep records of its proceedings.

     (d) The council may appoint committees or subcommittees to investigate and make recommendations to the full council. Members of these committees or subcommittees need not be members of the council.

     (e) Eight voting members of the council constitute a quorum and the affirmative vote of at least the majority of those members present is necessary for any action taken by vote of the council.

     (f) The council is part time. Public members appointed by the Governor may pursue and engage in another business or occupation or gainful employment. Any person employed by, owning an interest in or otherwise associated with a broadband deployment project, project sponsor or project participant may serve as a council member and is not disqualified from serving as a council member because of a conflict of interest prohibited under section five, article two, chapter six-b of this code and is not subject to prosecution for violation of said section when the violation is created solely as a result of his or her relationship with the broadband deployment project, project sponsor or project participant so long as the member recuses himself or herself from board participation regarding the conflicting issue in the manner set forth in legislative rules promulgated by the West Virginia Ethics Commission.

     (g) No member of the council who serves by virtue of his or her office receives any compensation or reimbursement of expenses for serving as a member. The public members and members of any committees or subcommittees are entitled to be reimbursed for actual and necessary expenses incurred for each day or portion thereof engaged in the discharge of his or her official duties in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration.
WVC 31 - 15 C- 4 §31-15C-4. Powers and duties of the council generally.

     (a) The council shall:

     (1) Explore the potential for increased use of broadband service for the purposes of education, career readiness, workforce preparation and alternative career training;

     (2) Explore ways for encouraging state and municipal agencies to expand the development and use of broadband services for the purpose of better serving the public, including audio and video streaming, voice-over Internet protocol, teleconferencing and wireless networking; and

     (3) Cooperate and assist in the expansion of electronic instruction and distance education services by July 2014.

     (b) 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 purpose 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 broadband deployment project;

     (2) Promote awareness of public facilities that have community broadband access that can be used for distance education and workforce development;

     (3) Advise on deployment of e-government portals such that all public bodies and political subdivisions have homepages, encourage one-stop government access and that all public entities stream audio and video of all public meetings;

     (4) To make and execute contracts, commitments and other agreements necessary or convenient for the exercise of its powers, including, but not limited to, the hiring of consultants to assist in the mapping of the state, categorization of areas within the state and evaluation of project applications: Provided, That the provisions of article three, chapter five-a of this code do not apply to the agreements and contracts executed under the provisions of this article;

     (5) Acquire by gift or purchase, hold or dispose of real property and personal property in the exercise of its powers and performance of its duties as set forth in this article;

     (6) Receive and dispense funds appropriated for its use by the Legislature or other funding sources or solicit, apply for and receive any funds, property or services from any person, governmental agency or organization to carry out its statutory duties; and

     (7) Perform any and all other activities in furtherance of its purpose.

     (c) The council shall exercise its powers and authority to bring broadband service to unserved areas. The council may not duplicate or displace broadband service in areas already served or where private industry feasibly can be expected to offer services in the reasonably foreseeable future.

     In providing governmental funding for broadband deployment projects, the council shall give priority to funding for projects in areas without access to broadband service of any type or any speed before providing governmental funding for projects in areas with existing broadband service below the minimum speeds specified in section two of this article.

     (d) The council shall report to the Joint Committee on Government and Finance on or before January 1 of each year. The report shall include the action that was taken by the council during the previous year in carrying out the provisions of this article. The council shall also make any other reports as may be required by the Legislature or the Governor.
WVC 31 - 15 C- 5 §31-15C-5. Creation of the Broadband Deployment Fund.
All moneys collected by the council, which may, in addition to appropriations, include gifts, bequests or donations, shall be deposited in a special revenue account in the State Treasury known as the Broadband Deployment Fund. The fund shall be administered by and under the control of the council. Expenditures from the fund shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article two, chapter eleven-b of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand nine, expenditures are authorized from collections rather than pursuant to appropriations by the Legislature.


WVC 31 - 15 C- 6 §31-15C-6. Categorization of areas within state for broadband deployment purposes.
Based on its analysis of mapping, broadband demand, and other relevant data, the council shall designate unserved areas of the state as being one of three distinct types. These types are as follows:

(1) Type 1 unserved area: an area in which broadband may be deployed by service providers in an economically feasible manner;

2) Type 2 unserved area: an unserved area in which broadband may be deployed by broadband service providers and other entities in an economically feasible manner, provided some form of public moneys is made available; and

(3) Type 3 unserved area: an unserved area in which, at present, cable or wireline broadband cannot be deployed in an economically feasible manner and an intermodal approach employing other technologies, such as satellite and wireless, is required to provide that area with high-speed internet access.


WVC 31 - 15 C- 7 §31-15C-7. Retention of outside expert consultant.
In order to assist the council with the highly technical task of categorizing the areas of the state and evaluating and prioritizing projects, the council may retain an outside expert consultant or consultants qualified to map the state on the basis of broadband availability, to evaluate, categorize and prioritize projects, to assist in public outreach and education in order to stimulate demand, to advise the council on the granting or denying of funding to projects, and to provide other support and assistance as necessary to accomplish the purposes of this article. The provisions of article three, chapter five-a of this code, shall not apply to the retention of an outside expert consultant pursuant to this section: Provided, that the council shall select the expert or experts by a competitive selection process.


WVC 31 - 15 C- 8 §31-15C-8. Stimulation of demand through public outreach and education.

  In order to implement and carry out the intent of this article, the council may take such actions as it deems necessary or advisable in order to stimulate demand through public outreach and education. The council shall consider the views, if offered, of affected members of the public, including private industry.
WVC 31 - 15 C- 9 §31-15C-9. Development of guidelines and application for funding   assistance; emergency rule-making authority.

  (a) In order to implement and carry out the intent of this article in type 2 and type 3 unserved areas, the council shall propose rules for legislative approval, pursuant to the provisions of article three, chapter twenty-nine-a of this code, to develop comprehensive, uniform guidelines for use by the council in evaluating any request by a project sponsor for funding assistance to plan, acquire, construct, improve or otherwise develop and execute a broadband deployment project in a type 2 or type 3 unserved area. The council may promulgate emergency rules pending authorization of the legislative rules.

  (b) The guidelines shall include the following:

  (1) The cost-effectiveness of the project;

  (2) The economic development benefits of the project;

  (3) The availability of alternative sources of funding that could help finance the project, including, but not limited to, private grants or federal funding and the efforts undertaken to obtain such funding;

  (4) If the project requires the construction of a network, the applicant's ability to operate and maintain such network;

  (5) The degree to which the project advances statewide broadband access and other state broadband planning goals;

  (6) If the project involves the construction of a network, the proposed technologies, bandwidths, upstream data rates and downstream data rates;

  (7) The estimated dates the project would commence and be completed;

  (8) How the proposed project compares to alternative proposals for the same unserved area with regard to the number of people served, the amount of financial assistance sought, and the long- term viability of the proposed project; and

  (9) Any other consideration the council deems pertinent in evaluating requests for funding assistance.

  (c) Under no circumstances may the council's guidelines allow for the approval of any project for broadband service involving the construction of a network that does not meet the minimum specifications for broadband service as set by the Federal Communications Commission.

  (d) The council shall create an application form that shall be used by all project sponsors requesting funding assistance from the council to plan, acquire, construct, improve or otherwise develop and execute broadband deployment projects in type 2 or type 3 unserved areas or broadband demand promotion projects. The application form shall advise applicants of information required by state agencies that will issue permits and certificates regarding the project.

  (e) The application form shall require the project sponsor to set forth:

  (1) The proposed location of the project;

  (2) If the project involves the construction of a network, the type(s) of unserved area(s) the project proposes to address;

  (3) The estimated total cost of the project;

  (4) The amount of funding assistance required and the specific uses of the funding;

  (5) Other sources of funding available or potentially available for the project;

  (6) Information demonstrating the need for the project;

  (7) That the proposed funding of the project is the most economically feasible and viable alternative to completing the project; and

  (8) Such other information as the council considers necessary.
WVC 31 - 15 C- 10 §31-15C-10. Requirements for project funding assistance; review of project application by council; competitive applications.

     (a) As determined by the council, project sponsors may submit applications for funding assistance.    (b) Broadband deployment projects, including projects involving the construction of a network, may be submitted for type 2 and/or type 3 unserved areas as those areas are categorized pursuant to section six of this article. Broadband demand promotion projects may be submitted on a statewide or regional basis.

     (c) When a completed application is received for a project area, the council shall post notice with the Secretary of State of the first completed application received for that project area. The notice shall be published in the State Register for sixty days to allow for competing applications to be submitted to the council.

     (d) Within thirty days of the close of the sixty-day notice period, the council shall review all applications timely received during the sixty-day period and either:

     (1) Approve funding for one or more projects after determining that the funding would constitute an appropriate investment of public funds; or

     (2) Deny the project funding request if the council determines that:

     (A) The application does not contain all of the required information;

     (B) Is incomplete;

     (C) A proposed project is not eligible for funding assistance; or

     (D) The proposed project is otherwise not an appropriate or prudent investment of state funds.

     (e) Prior to approving or denying any funding request, the council may seek the advice of any expert consultant retained pursuant to section seven of this article, but the council is not bound by that advice. The council shall also consider the views, if offered, of affected members of the public, including private industry.

     (f) To apply for or receive any funding assistance for a broadband deployment project or a broadband demand promotion project from the council pursuant to this section, the project sponsor seeking the funding assistance shall submit a completed application to the council on the form prepared for such purpose by the council pursuant to section nine of this article.

     (g) In reviewing each application, the council may use the engineering, financial and technical expertise of outside consultants in addition to the respective staffs of the government agencies and private-sector entities represented on the council or other government agencies.

     (h) Notwithstanding any provision of article fifteen-a, chapter thirty-one or any other provision of this code, broadband deployment project proposals and broadband demand promotion project proposals submitted to the council for its consideration pursuant to this article and the council's decisions with regard to such projects shall not be subject to review by the West Virginia Infrastructure and Jobs Development Council.
WVC 31 - 15 C- 11 §31-15C-11. Required reporting by state entities.
(a) The Secretary of Administration shall submit a written report to the council by the thirty-first day of October of each year describing in detail the existing broadband infrastructure owned, leased, used, or operated by the state; broadband infrastructure purchased by the state; the demand for the infrastructure in the state; and whether or not that infrastructure is available to the public. If significant changes to any of the information submitted to the council occur, the secretary of administration shall submit a written update to the council within sixty days of the change or in the next report, whichever date is sooner.

(b) The Secretary of Administration shall submit a written report to the council by the thirty-first day of October of each year describing in detail the state portal, any state services or programs that are available to the public on the state portal; the amount of usage of the portal; and efforts to create demand for the portal. If significant changes to any of the information submitted to the council occur, the secretary of administration shall submit a written update to the council within sixty days of the change or in the next report, whichever date is sooner.

(c) The chancellor of the higher education policy commission shall submit a written report to the council by the thirty-first day of October of each year describing in detail the existing broadband infrastructure owned, leased, used, operated, or purchased by all public baccalaureate and graduate institutions in the state; all programs or initiatives designed to increase the usage of broadband and broadband based educational applications in the public baccalaureate and graduate institutions; and all training provided to instructors in the use of broadband and broadband based educational applications. If significant changes to any of the information submitted to the council occur, the chancellor of the higher education policy commission shall submit a written update to the council within sixty days of the change or in the next report, whichever date is sooner.

(d) The chancellor of the West Virginia Council for Community and Technical College Education shall submit a written report to the council by the thirty-first day of October of each year describing in detail the existing broadband infrastructure owned, leased, used, operated, or purchased by all public baccalaureate and graduate institutions in the state; all programs or initiatives designed to increase the usage of broadband and broadband based educational applications in the public baccalaureate and graduate institutions; and all training provided to instructors in the use of broadband and broadband based educational applications. If significant changes to any of the information submitted to the council occur, the chancellor of the West Virginia Council for Community and Technical College Education shall submit a written update to the council within sixty days of the change or in the next report, whichever date is sooner.

(e) The State Superintendent of schools shall submit a written report to the council by the thirty-first day of October of each year describing in detail the existing broadband infrastructure owned, leased, used, operated, or purchased by all state schools; all programs or initiatives designed to increase the usage of broadband and broadband based educational applications in the schools and in Pre-K and early childhood education programs; all training provided to teachers in the use of broadband and broadband based educational applications; the availability of an access to broadband in homes and families with children aged four years to eight years; estimates of the number of families with children aged four years to eight years who are using broadband in the homes; estimates of the ownership of computers in families with children aged four years to eight years; and any unmet demand for broadband infrastructure in state schools. If significant changes to any of the information submitted to the council occur, the state superintendent of schools shall submit a written update to the council within sixty days of the change or in the next report, whichever date is sooner.

(f) The chair of the West Virginia healthcare authority shall submit a written report to the council by the thirty-first day of October of each year describing in detail the existing broadband infrastructure owned, leased, used, operated, or purchased by all hospitals, medical facilities, clinics, or healthcare providers; all programs, initiatives, or applications utilizing broadband that are promoted by hospitals, medical facilities, clinics, or healthcare providers; and any unmet demand for broadband by hospitals, medical facilities, clinics, or healthcare providers.


WVC 31 - 15 C- 12 §31-15C-12. Limitation of liability.
No person is subject to antitrust or unfair competition liability based on membership or participation in the council, which provides an essential governmental function and enjoys state action immunity.


WVC 31 - 15 C- 13 §31-15C-13. Protection of proprietary business information.
(a) Broadband deployment information provided to the council or its consultants and other agents, including, but not limited to, physical plant locations, subscriber levels, and market penetration data, constitutes proprietary business information and, along with any other information that constitutes trade secrets, shall be exempt from disclosure under the provisions of chapter twenty-nine-b of this code: Provided, That the information is identified as confidential information when submitted to the council.

(b) Trade secrets or proprietary business information obtained by the council from broadband providers and other persons or entities shall be secured and safeguarded by the state. Such information or data shall not be disclosed to the public or to any firm, individual or agency other than officials or authorized employees of the state. Any person who makes any unauthorized disclosure of such confidential information or data is guilty of a misdemeanor and, upon conviction thereof, may be fined not more than five thousand dollars or confined in a correctional facility for not more than one year, or both.

(c) The official charged with securing and safeguarding trade secrets and proprietary data for the council is the Secretary of Administration, who is authorized to establish and administer appropriate security measures. The council chair shall designate two additional persons to share the responsibility of securing trade secrets or proprietary information. No person will be allowed access to trade secrets or proprietary information without written approval of a minimum of two of the three authorized persons specified above.


WVC 31 - 15 C- 14 §31-15C-14. Expiration of council.
     The council shall continue to exist until December 31, 2014, unless sooner terminated, continued or reestablished pursuant to an act of the Legislature.
WVC 31 - 16 - ARTICLE 16. WEST VIRGINIA STEEL FUTURES PROGRAM.


WVC 31 - 16 - 1 §31-16-1. Legislative intent; purpose and administration.
The Legislature recognizes that the steel industry plays a significant role in West Virginia's economy, and the industry's survival and success is of significant importance to the residents and the tax base of the state. Because of this significant economic role, there is hereby created in the bureau of commerce a steel advisory commission and a new program entitled "The Steel Futures Program". The purpose of the commission and the program is to preserve and improve the economy of the state by promoting employment and increased productivity, thereby ensuring continued economic development consistent with these goals, and to maintain a high standard of living for the residents of the state. The commission, through the steel futures program, may supplement any other enterprise assistance program administered by the West Virginia development office. The steel futures program shall be administered so as to provide financial and technical assistance as provided in this article to increase the competitiveness of existing steel and steel-related industries within the state and to encourage the establishment and development of new steel and steel-related industries within the state.


WVC 31 - 16 - 2 §31-16-2. Steel advisory commission; membership, appointment, terms, quorum and selection of officers.
(a) There is hereby created the West Virginia steel advisory commission within the bureau of commerce, which shall consist of fifteen members. The governor or his or her designee shall be a member of the commission and shall serve as its chairperson. Ten members shall be appointed by the governor with the advice and consent of the Senate. At least four of the members appointed by the governor shall be senior management representatives of steel manufacturing companies that employ over fifty people. At least two of the members appointed by the governor shall be representatives of organized labor. One of the members appointed by the governor shall be a member of the united steelworkers of America. One of the members appointed by the governor shall be a member of the independent steelworkers union. One member shall be appointed by the university of West Virginia board of trustees and one member shall be appointed by the board of directors of the state college system. Of the remaining members, the president of the Senate and the speaker of the House of Delegates shall each appoint one member from their respective houses who shall serve as ex officio nonvoting members. No more than seven of the governor's appointees shall be of the same political party. Prior to making the appointments, the governor shall solicit recommendations from individuals representing the steel industry and labor organizations representing steelworkers. The governor shall make appointments based upon the knowledge and experience of the individual in the steel industry.

(b) Within thirty days after the effective date of this section, the governor, the University of West Virginia board of trustees and the board of directors of the state college system, the president of the Senate and the speaker of the House of Delegates shall make their respective initial appointments to the commission. The terms of office for nonlegislative appointed members are seven years. Each member shall hold office from the date of his or her appointment until the end of the term for which he or she was appointed. Members may be reappointed. Vacancies shall be filled in the manner provided for original appointments. A member shall continue in office until his or her successor takes office or until a period of sixty days has elapsed, whichever occurs first. The terms of legislative members shall be for the term for which they were elected.

(c) Notwithstanding the terms of office stated for members in subsection (b) of this section, each member serves at the pleasure of his or her appointing authority and the appointing authority may remove his or her appointee at any time and for any reason.

(d) Seven members constitute a quorum and an affirmative vote of a majority of those members present is necessary to transact business of the commission. In the event of the absence of a member appointed by the president of the Senate or by the speaker of the House of Delegates, the president of the Senate or the speaker of the House of Delegates may become a member, as the case may be, or may designate an alternative member of the commission.

(e) Before entering upon the duties of office, each member shall take the oath of office prescribed by the constitution of West Virginia.

(f) Members of the commission shall receive no compensation but shall be reimbursed for their necessary and actual expenses incurred in the course of duties as members of the commission.

(g) The commission shall provide for the election of officers. The commission shall meet at least three times annually or upon the call of the chairperson or upon the request of five or more members.

(h) The West Virginia development office, as requested by the commission, shall provide the commission with meeting space and staff services and other technical assistance. The West Virginia development office shall assist the commission with the costs of production and distribution of commission reports. If the commission determines, by a majority vote, to have any study conducted by a third party, the funds for the study shall be derived from contributions from the steel industry or other interested parties.


WVC 31 - 16 - 3 §31-16-3. General powers of the commission.
The West Virginia steel industry advisory commission shall

have and may exercise all powers necessary or appropriate to carry out the purposes of this article, including the power:

(a) To conduct an examination of existing federal and state laws which currently affect the production and consumption of West Virginia steel;

(b) To study problems which the West Virginia steel and steel-related industries currently face including unfair competition from foreign industries, the economic factors affecting the West Virginia steel industry, and other matters relevant to the future of the steel and steel-related industries in this state;

(c) To facilitate and provide technical assistance in the creation of public-private partnerships that use incentive packaging as a means to encourage economic growth and the creation of value-added, better paying jobs;

(d) To develop a steel futures program;

(e) To identify training and educational opportunities that enhance the job skills of the workforce of the steel and steel-related industries;

(f) To identify and encourage partnering opportunities between the college and university systems of West Virginia and the steel and steel-related industries that provide education and training support to the growth and stability of those industries in this state;

(g) To recommend that the West Virginia development office enter into contractual agreements that promote the interests of the West Virginia steel and steel-related industries.


WVC 31 - 16 - 4 §31-16-4. Steel futures program.
(a) The commission shall develop and recommend a strategy for financial and technical assistance to steel and steel-related industries in the state. The strategy shall include investment policies with regard to these industries. In administering the program, the commission shall consult with appropriate representatives of steel, and steel-related industries, appropriate representatives of any union that represents workers in these industries, and any other persons with expert knowledge of these industries. The commission shall consult with the chairman of the public service commission to foster the development of public and private cooperative efforts that would result in energy savings and reduced energy costs for steel and steel-related industries. The commission shall consult with the division of environmental protection and other agencies with which the steel and steel-related industries must interact to assist the steel and steel-related industries in adhering to regulations in a manner conducive to economic viability. Assistance may be made available to steel and steel-related industries undertaking projects the commission determines to have long-term implications for and broad applicability to the economy of this state when the West Virginia development office finds that:

(1) The undertaking of projects by the steel and steel-related industries will benefit the people of the state by creating or preserving jobs and employment opportunities; and

(2) The undertaking of projects by the steel and steel-related industries will allow them to compete more effectively in the marketplace.

(b) Projects eligible to receive assistance under the steel futures program may include, but are not limited to, the following:

(1) Research and development specifically related to steel and steel-related industries and feasibility studies for business development within these industries;

(2) Employee training;

(3) Labor and management relations; and

(4) Technology-driven capital investment.

(c) Financial and technical assistance may be in the form and conditioned upon terms as stipulated by each enterprise assistance program administered by the West Virginia development office. No later than the thirtieth day of June, one thousand nine hundred ninety-four, and no later than the thirtieth day of June of each year thereafter, the commission shall submit a report to the governor and Legislature describing projects of the steel futures program, results obtained from completed projects of the program and program projects for the next fiscal year.


WVC 31 - 16 - 5 §31-16-5.
Repealed.

Acts, 2010 Reg. Sess., Ch. 32.
WVC 31 - 17 - ARTICLE 17. WEST VIRGINIA RESIDENTIAL MORTGAGE LENDER, BROKER AND SERVICER ACT.
WVC 31 - 17 - 1 §31-17-1. Definitions and general provisions.
As used in this article:

(a) "Additional charges" means every type of charge arising out of the making or acceptance of a primary or subordinate mortgage loan, except finance charges, including, but not limited to, official fees and taxes, reasonable closing costs and certain documentary charges and insurance premiums and other charges which definition is to be read in conjunction with and permitted by section one hundred nine, article three, chapter forty-six-a of this code;

(b) "Affiliated" means persons under the same ownership or management control. As to corporations, limited liability companies or partnerships, where common owners manage or control a majority of the stock, membership interests or general partnership interests of one or more such corporations, limited liability companies or partnerships, those persons are considered affiliated. In addition, persons under the ownership or management control of the members of an immediate family shall be considered affiliated. For purposes of this section, "immediate family" means mother, stepmother, father, stepfather, sister, stepsister, brother, stepbrother, spouse, child and grandchildren;

(c) "Amount financed" means the total of the following items to the extent that payment is deferred:

(1) The cash price of the goods, services or interest in land, less the amount of any down payment, whether made in cash or in property traded in;

(2) The amount actually paid or to be paid by the seller pursuant to an agreement with the buyer to discharge a security interest in or a lien on property traded in; and

(3) If not included in the cash price:

(A) Any applicable sales, use, privilege, excise or documentary stamp taxes;

(B) Amounts actually paid or to be paid by the seller for registration, certificate of title or license fees; and

(C) Additional charges permitted by this article;

(d) "Applicant" means a person who has applied for a lender or broker license;

(e) "Broker" means any person acting in the regular course of business who, for a fee or commission or other consideration, negotiates or arranges, or who offers to negotiate or arrange, or originates or assigns a primary or subordinate mortgage loan between a lender and a borrower. A person is considered to be acting in the regular course of business if he or she negotiates or arranges, or offers to negotiate or arrange, or originates, processes or assigns any primary or subordinate mortgage loans in any one calendar year; or if he or she seeks to charge a borrower or receive from a borrower money or other valuable consideration in any primary or subordinate mortgage transaction before completing performance of all broker services that he or she has agreed to perform for the borrower;

(f) "Brokerage fee" means the fee or commission or other consideration charged by a broker or loan originator for the services described in subdivision(e) of this section;

(g) "Commissioner" means the Commissioner of Banking of this state;

(h) "Finance charge" means the sum of all interest and similar charges payable directly or indirectly by the debtor imposed or collected by the lender incident to the extension of credit as coextensive with the definition of "loan finance charge" set forth in section one hundred two, article one, chapter forty-six-a of this code;

(i) "Lender" means any person who makes or offers to make or accepts or offers to accept or purchases or services any primary or subordinate mortgage loan in the regular course of business. A person is considered to be acting in the regular course of business if he or she makes or accepts, or offers to make or accept, any primary or subordinate mortgage loans in any one calendar year;

(j) "Licensee" means any person duly licensed by the commissioner under the provisions of this article or article seventeen-a of this chapter as a lender, broker or mortgage loan originator;

(k) "Nationwide Mortgage Licensing System and Registry" means a mortgage licensing system developed and maintained by the Conference of State Bank Supervisors and the American Association of Residential Mortgage Regulators for the licensing and registration of licensed mortgage brokers and lenders licensed under this article and mortgage loan originators licensed under article seventeen-a of this chapter;

(l) "Person" means an individual, partnership, association, trust, corporation or any other legal entity, or any combination thereof;

(m) "Primary mortgage loan" means any loan primarily for personal, family or household use that is secured by a mortgage, deed of trust or other equivalent consensual security interest on a dwelling as defined in Section 103(v) of the Truth in Lending Act or residential real estate upon which is constructed or intended to be constructed a dwelling;

(n) "Servicing" or "servicing a residential mortgage loan" means through any medium or mode of communication the collection or remittance for, or the right or obligation to collect or remit for another lender, note owner or noteholder, payments of principal, interest, including sales finance charges in a consumer credit sale, and escrow items as insurance and taxes for property subject to a residential mortgage loan; and

(o) "Subordinate mortgage loan" means any loan primarily for personal, family or household use that is secured by a mortgage, deed of trust or other equivalent consensual security interest on a dwelling as defined in Section 103(v) of the Truth in Lending Act or residential real estate upon which is constructed or intended to be constructed a dwelling and is subject to the lien of one or more prior recorded mortgages or deeds of trust."


WVC 31 - 17 - 2 §31-17-2. License required for lender and broker originator; exemptions.
(a) A person may not engage in this state in the business of lender or broker unless and until he or she first obtains a license to do so from the commissioner, which license remains unexpired, unsuspended and unrevoked, and no foreign corporation may engage in business in this state unless it is registered with the Secretary of State to transact business in this state.

(b) All mortgage loan originators, as that term is defined by section two, article seventeen-a of this chapter, shall obtain a mortgage loan originator license pursuant to said article.

(c) Brokerage fees, additional charges and finance charges imposed by licensed mortgage brokers, lenders and loan originators are exempt from the tax imposed by article fifteen, chapter eleven of this code beginning on January 1, 2004.

(d) The provisions of this article do not apply to loans made by the following:

(1) Federally insured depository institutions;

(2) Regulated consumer lender licensees;

(3) Insurance companies;

(4) Any other lender under the regular supervision and examination for consumer compliance of any agency of the federal government;

(5) Any agency or instrumentality of this state, federal, county or municipal government or on behalf of the agency or instrumentality;

(6) By a nonprofit community development organization making mortgage loans to promote home ownership or improvements for the disadvantaged which loans are subject to federal, state, county or municipal government supervision and oversight; or

(7) Habitat for Humanity International, Inc., and its affiliates providing low-income housing within this state. Loans made subject to this exemption may be assigned, transferred, sold or otherwise securitized to any person and shall remain exempt from the provisions of this article, except as to reporting requirements in the discretion of the commissioner where the person is a licensee under this article. Nothing herein shall prohibit a broker licensed under this article from acting as broker of an exempt loan and receiving compensation as permitted under the provisions of this article.

(e) The provisions of this article do not apply to loans brokered by a federally insured depository institution.

(f) A person or entity designated in subsection (d) of this section may take assignments of a primary or subordinate mortgage loan from a licensed lender and the assignments of said loans that they themselves could have lawfully made as exempt from the provisions of this article under this section do not make that person or entity subject to the licensing, bonding, reporting or other provisions of this article except as the defense or claim would be preserved pursuant to section one hundred two, article two, chapter forty-six-a of this code.

(g) The placement or sale for securitization of a primary or subordinate mortgage loan into a secondary market by a licensee may not subject the warehouser or final securitization holder or trustee to the provisions of this article: Provided, That the warehouser, final securitization holder or trustee under an arrangement is either a licensee, or person or entity entitled to make exempt loans of that type under this section, or the loan is held with right of recourse to a licensee.


WVC 31 - 17 - 3 §31-17-3. Supervision by Commissioner of Banking; rules and regulations; personnel; participation in the Nationwide Mortgage Licensing System and Registry.
(a) It shall be the duty of the commissioner to enforce the provisions of this article and, to implement and make effective such provisions, he or she is hereby authorized and empowered to promulgate reasonable rules in accordance with the provisions of article three, chapter twenty-nine-a of this code and to employ such personnel as may be necessary.

(b) The commissioner may participate in the Nationwide Mortgage Licensing System and Registry and permit such system to process applications for mortgage lender and mortgage broker licenses in this state and receive and maintain records related to such licenses that are allowed or required to be maintained by the commissioner. The commissioner is authorized to establish relationships or contracts with the Nationwide Mortgage Licensing System and Registry or other entities designated by the Nationwide Mortgage Licensing System and Registry to collect and maintain records and process transaction fees or other fees related to licensees subject to this article. The Nationwide Mortgage Licensing System and Registry shall transfer electronically all fees payable to the Division of Banking directly to the credit of the commissioner's special revenue account with the State Treasurer.

(c) Mortgage lenders and brokers licensed pursuant to this article shall submit renewals for calendar year 2010 on or before October 1, 2009, in accordance with the amendments to this article and on a form prescribed by the commissioner. Beginning January 2, 2010, licensees shall transition to the Nationwide Mortgage Licensing System and Registry according to the terms established by that system.


WVC 31 - 17 - 4 §31-17-4. Applications for licenses; requirements; bonds; fees; renewals; waivers and reductions; per loan fee.
(a) In connection with an application for licensing as a mortgage lender or mortgage broker, the applicant shall, at a minimum, furnish to the Nationwide Mortgage Licensing System and Registry information concerning the applicant's identity, including:

(1) Fingerprints for submission to the Federal Bureau of Investigation and any governmental agency or entity authorized to receive such information for a state, national and international criminal history background check; and

(2) Personal history and experience in a form prescribed by the Nationwide Mortgage Licensing System and Registry and the commissioner, including the submission of authorization for the Nationwide Mortgage Licensing System and Registry and the commissioner to obtain:

(A) An independent credit report obtained from a consumer reporting agency described in Section 603(p) of the Fair Credit Reporting Act; and

(B) Information related to any administrative, civil or criminal findings by any governmental jurisdiction.

(b) In order to reduce the points of contact which the Federal Bureau of Investigation may have to maintain for purposes of this article, the commissioner may use the Nationwide Mortgage Licensing System and Registry or its designated vendor as a channeling agent for requesting information from and distributing information to the Department of Justice or any governmental agency.

(c) In order to reduce the points of contact which the commissioner may have to maintain, for purposes of this article, the commissioner may use the Nationwide Mortgage Licensing System and Registry as a channeling agent for requesting and distributing information to and from any source so directed by the commissioner.

(d) Application for a lender's or broker's license shall each year be submitted under oath, in the form prescribed by the commissioner, and shall contain the full name and address of the applicant and, if the applicant is a partnership, limited liability company or association, of every member thereof, and, if a corporation, of each officer, director and owner of ten percent or more of the capital stock thereof and further information as the commissioner may reasonably require. Background and credit checks shall be conducted in accordance with this section for any officer, director or owner, directly or indirectly, of ten percent or more of the capital stock of a corporation or any member of a limited liability or partnership with, directly or indirectly, a ten percent or greater ownership interest. Any application shall also disclose the location at which the business of lender or broker is to be conducted.

(e) At the time of making application for a lender's license, the applicant therefor shall:

(1) If a foreign corporation, submit a certificate from the Secretary of State certifying that the applicant is registered with the Secretary of State to transact business in this state;

(2) Submit proof that he or she has available for the operation of the business at the location specified in the application net worth of at least $250,000;

(3) File with the commissioner a bond in favor of the state for the benefit of consumers or for a claim by the commissioner for an unpaid civil administrative penalty or an unpaid examination invoice in the amount of $100,000 for licensees with West Virginia annual loan originations of $0 to $3 million, $150,000 for West Virginia annual loan originations greater than $3 million and up to $10 million, and $250,000 for West Virginia annual loan originations over $10 million in a form and with conditions as the commissioner may prescribe and executed by a surety company authorized to do business in this state: Provided, That lender licensees who service West Virginia mortgage loans shall file with the commissioner a bond under the same conditions listed above in the amount of $200,000;

(4) Pay to the commissioner a license fee of $1,250 plus the actual cost of fingerprint processing and the processing fees assessed by the Nationwide Mortgage Licensing System and Registry. If the commissioner shall determine that an investigation outside this state is required to ascertain facts or information relative to the applicant or information set forth in the application, the applicant may be required to advance sufficient funds to pay the estimated cost of the investigation. An itemized statement of the actual cost of the investigation outside this state shall be furnished to the applicant by the commissioner and the applicant shall pay or shall have returned to him or her, as the case may be, the difference between his or her payment in advance of the estimated cost and the actual cost of the investigation; and

(5) Submit a full and complete disclosure of any litigation or unresolved complaint filed by a governmental authority or class action lawsuit on behalf of consumers relating to the operation of the license applicant.

(f) At the time of making application for a broker's license, the applicant therefor shall:

(1) If a foreign corporation, submit a certificate from the Secretary of State certifying that the applicant is registered with the Secretary of State to transact business in this state;

(2) Submit proof that he or she has available for the operation of the business at the location specified in the application net worth of at least $10,000;

(3) File with the commissioner a bond in favor of the state for the benefit of consumers or for a claim by the commissioner for an unpaid civil administrative penalty or an unpaid examination invoice in the amount of $50,000 for licensees with West Virginia loan originations of $0 to $3 million, $75,000 for West Virginia loan originations greater than $3 million and up to $10 million, and $100,000 for West Virginia loan originations over $10 million in a form and with conditions as the commissioner may prescribe and executed by a surety company authorized to do business in this state: Provided, That the bond must be in the amount of $150,000 before a broker may participate in a table-funded residential mortgage loan;

(4) Pay to the commissioner a license fee of $350 plus the actual cost of fingerprint processing and the processing fees assessed by the Nationwide Mortgage Licensing System and Registry; and

(5) Submit a full and complete disclosure of any litigation or unresolved complaint filed by a governmental authority or class action lawsuit on behalf of consumers relating to the operation of the license applicant.

(g) The aggregate liability of the surety on any bond given pursuant to the provisions of this section shall in no event exceed the amount of the bond.

(h) Nonresident lenders and brokers licensed under this article by their acceptance of the license acknowledge that they are subject to the jurisdiction of the courts of West Virginia and the service of process pursuant to section one hundred thirty-seven, article two, chapter forty-six-a of this code and section thirty-three, article three, chapter fifty-six of this code.

(i) The commissioner may elect to reduce or waive the application fees, bond amounts and net worth requirements imposed by this section for bona fide nonprofit corporations or other bona fide nonprofit business entities, including community housing development organizations, whose residential mortgage lending or brokering activities provide housing primarily to households or persons below the HUD-established median income for their area of residence. Any waiver of fees or other costs under this paragraph shall not be construed as a waiver of the duty to comply with all other provisions of this article.

(j) Every broker and lender licensee shall pay a fee of $5 for each residential mortgage loan originated, made or brokered in a calendar year. This fee shall be paid annually for the benefit of the Division of Banking and remitted with the report required pursuant to subsection (b), section eleven of this article for loans made, brokered or originated during the previous calendar year. If a licensee ceases operation, it shall remit any fees due since the last reporting period when it relinquishes its license.

(k) If a claim for a consumer restitution is pending on a bond required pursuant to this section when the commissioner makes a claim for a civil administrative penalty or an unpaid examination invoice, the consumer claim shall be resolved before any payments may be made for an unpaid penalty or examination invoice.


WVC 31 - 17 - 5 §31-17-5. Refusal or issuance of license.
(a) Upon an applicant's full compliance with the provisions of section four of this article, the commissioner shall investigate the relevant facts with regard to the applicant and his or her application for a lender's or broker's license, as the case may be. Upon the basis of the application and all other information before him or her, the commissioner shall make and enter an order denying the application and refusing the license sought if the commissioner finds that:

(1) The applicant does not have available the net worth required by the provisions of section four of this article, if applicable;

(2) The financial responsibility, character, reputation, experience or general fitness of the applicant, including its officers, directors, principals and employees, reasonably warrants the belief that the business will not be operated lawfully and properly in accordance with the provisions of this article; and

(3) The applicant has done any act or has failed or refused to perform any duty or obligation for which the license sought could be suspended or revoked were it then issued and outstanding.

Otherwise, the commissioner shall issue to the applicant a lender's or broker's license which shall entitle the applicant to engage in the business of lender or broker, as the case may be, during the period, unless sooner suspended or revoked, for which the license is issued.

(b) Every application for a lender's or broker's license shall be passed upon and the license issued or refused within sixty days after the applicant therefor has fully complied with the provisions of this article. Under no circumstances whatever may a person or licensee act as a broker and lender in the same transaction. Whenever an application for a lender's or broker's license is denied and the license sought is refused, which refusal has become final, the commissioner shall retain all fees to cover administrative costs of processing the broker or lender application.


WVC 31 - 17 - 6 §31-17-6. Minimum net worth to be maintained; bond to be kept in full force and effect; foreign corporation to remain qualified to do business in this state.
At all times, a lender and broker licensee shall: (1) Have available the net worth required by the provisions of section four of this article; (2) keep the bond required by said section in full force and effect; and (3) if the licensee be a foreign corporation, remain qualified to transact business in this state unless otherwise exempt.


WVC 31 - 17 - 7 §31-17-7. License not transferable or assignable; license may not be franchised; renewal of license.
(a) A license may not be transferable or assignable. A licensee may not offer a franchise under that license to another person. The commissioner may allow licensees to have branch offices without requiring additional licenses provided the location of all branch offices is registered with the Division of Banking by the licensee. Whenever a licensee changes his or her place of business to a location other than that set forth in his or her license and branch registration, he or she shall give written notice thirty days prior to such change to the commissioner and pay a relocation fee of $100 for each office relocation.

(b) Every lender's or broker's license shall, unless sooner suspended or revoked, expire on December 31 of each year and any license may be renewed each year in the same manner, for the same license fee or fees specified above and upon the same basis as an original license is issued in accordance with the provisions of this article. All applications for the renewal of licenses shall be filed with the Nationwide Mortgage Licensing System and Registry according to the renewal schedule published for the system, but no later than sixty days before the expiration thereof.

(c) Any change in control of a licensee whereby equitable interest of fifty percent or more is transferred to an outside party, a new application must be submitted according to this article.


WVC 31 - 17 - 8 §31-17-8. Maximum interest rate on subordinate loans; prepayment rebate; maximum points, fees and charges; overriding of federal limitations; limitations on lien documents; prohibitions on primary and subordinate mortgage loans; civil remedy.

     (a) The maximum rate of finance charges on or in connection with any subordinate mortgage loan may not exceed eighteen percent per year on the unpaid balance of the amount financed.

     (b) A borrower shall have the right to prepay his or her debt, in whole or in part, at any time and shall receive a rebate for any unearned finance charge, exclusive of any points, investigation fees and loan origination fees, which rebate shall be computed under the actuarial method.

     (c) Except as provided by section one hundred nine, article three, chapter forty-six-a of this code and by subsection (g) of this section, no additional charges may be made, nor may any charge permitted by this section be assessed unless the loan is made: Provided, That in the event the loan is not made, the licensee is not required to refund an appraisal fee that is collected from a loan applicant by the licensee and paid to an unrelated third-party appraiser unless the fee is required to be refunded pursuant to federal law.

     (d) Where loan origination fees, investigation fees or points have been charged by the licensee, the charges may not be imposed again in any refinancing of that loan or any additional loan on that property made within twenty-four months thereof, unless the new loan has a reasonable, tangible net benefit to the borrower considering all of the circumstances, including the terms of both the new and the refinanced loans, the cost of the new loan and the borrower's circumstances. The licensee shall document this benefit in writing on a form prescribed by the commissioner and maintain the documentation in the loan file. To the extent this subdivision overrides the preemption on limiting points and other charges on first lien residential mortgage loans contained in the United States Depository Institutions Deregulation and Monetary Control Act of 1980, 12 U. S. C. §1735f-7a, the state law limitations contained in this section shall apply.

     (e) Notwithstanding other provisions of this section, a delinquent charge or late charge may be charged on any installment made ten or more days after the regularly scheduled due date in accordance with section one hundred twelve or one hundred thirteen, article three, chapter forty-six-a of this code, whichever is applicable. The charge may be made only once on any one installment during the term of the primary or subordinate mortgage loan.

     (f) Hazard insurance may be required by the lender. The charges for any insurance shall not exceed the standard rate approved by the Insurance Commissioner for the insurance. Proof of all insurance in connection with primary and subordinate mortgage loans subject to this article shall be furnished to the borrower within thirty days from and after the date of application therefor by the borrower.

     (g) Except for fees for services provided by unrelated third parties for appraisals, inspections, title searches and credit reports, no application fee may be allowed whether or not the mortgage loan is consummated; however, the borrower may be required to reimburse the licensee for actual expenses incurred by the licensee in a purchase money transaction after acceptance and approval of a mortgage loan proposal made in accordance with the provisions of this article which is not consummated because of:

     (1) The borrower's willful failure to close the loan; or

     (2) The borrower's false or fraudulent representation of a material fact which prevents closing of the loan as proposed.

     (h) No licensee shall make, offer to make, accept or offer to accept any primary or subordinate mortgage loan except on the terms and conditions authorized in this article.

     (i) No licensee shall induce or permit any borrower to become obligated to the licensee under this article, directly or contingently, or both, under more than one subordinate mortgage loan at the same time for the purpose or with the result of obtaining greater charges than would otherwise be permitted under the provisions of this article.

     (j) No instrument evidencing or securing a primary or subordinate mortgage loan shall contain:

     (1) Any power of attorney to confess judgment;

     (2) Any provision whereby the borrower waives any rights accruing to him or her under the provisions of this article;

     (3) Any requirement that more than one installment be payable in any one installment period, or that the amount of any installment be greater or less than that of any other installment, except for the final installment which may be in a lesser amount, or unless the loan is structured as a revolving line of credit having no set final payment date;

     (4) Any assignment of or order for the payment of any salary, wages, commissions or other compensation for services, or any part thereof, earned or to be earned;

     (5) A requirement for compulsory arbitration which does not comply with federal law; or

     (6) Blank or blanks to be filled in after the consummation of the loan. A borrower must be given a copy of every signed document executed by the borrower at the time of closing.

     (k) No licensee shall charge a borrower or receive from a borrower money or other valuable consideration as compensation before completing performance of all services the licensee has agreed to perform for the borrower unless the licensee also registers and complies with all requirements set forth for credit service organizations in article six-c, chapter forty-six-a of this code, including all additional bonding requirements as may be established therein.

     (l) No licensee shall make or broker revolving loans secured by a primary or subordinate mortgage lien for the retail purchase of consumer goods and services by use of a lender credit card.

     (m) In making any primary or subordinate mortgage loan, no licensee may, and no primary or subordinate mortgage lending transaction may, contain terms which:

     (1) Collect a fee not disclosed to the borrower; collect any attorney fee at closing in excess of the fee that has been or will be remitted to the attorney; collect a fee for a product or service where the product or service is not actually provided; misrepresent the amount charged by or paid to a third party for a product or service; or collect duplicate fee or points to act as both broker and lender for the same mortgage loan, however, fees and points may be divided between the broker and the lender as they agree, but may not exceed the total charges otherwise permitted under this article: Provided, That the fact of any fee, point or compensation is disclosed to the borrower consistent with the solicitation representation made to the borrower;

     (2) Compensate, whether directly or indirectly, coerce or intimidate an appraiser for the purpose of influencing the independent judgment of the appraiser with respect to the value of real estate that is to be covered by a deed of trust or is being offered as security according to an application for a primary or subordinate mortgage loan;

     (3) Make or assist in making any primary or subordinate mortgage loan with the intent that the loan will not be repaid and that the lender will obtain title to the property through foreclosure: Provided, That this subdivision shall not apply to reverse mortgages obtained under the provisions of article twenty-four, chapter forty-seven of this code;

     (4) Require the borrower to pay, in addition to any periodic interest, combined fees, compensation or points of any kind to the lender and broker to arrange, originate, evaluate, maintain or service a loan secured by any encumbrance on residential property that exceed, in the aggregate, six percent of the loan amount financed, including any yield spread premium paid by the lender to the broker: Provided, That reasonable closing costs, as defined in section one hundred two, article one, chapter forty-six-a of this code, payable to unrelated third parties may not be included within this limitation: Provided, however, That no yield spread premium is permitted for any loan for which the annual percentage rate exceeds eighteen percent per year on the unpaid balance of the amount financed: Provided further, That if no yield spread premium is charged, the aggregate of fees, compensation or points can be no greater than five percent of the loan amount financed. The financing of the fees and points are permissible and, where included as part of the finance charge, does not constitute charging interest on interest. To the extent that this section overrides the preemption on limiting points and other charges on first lien residential mortgage loans contained in the United States Depository Institutions Deregulation and Monetary Control Act of 1980, 12 U. S. C. §1735f-7a, the state law limitations contained in this section apply;

     (5) Secure a primary or subordinate mortgage loan by any security interest in personal property unless the personal property is affixed to the residential dwelling or real estate;

     (6) Allow or require a primary or subordinate mortgage loan to be accelerated because of a decrease in the market value of the residential dwelling that is securing the loan;

     (7) Require terms of repayment which do not result in continuous monthly reduction of the original principal amount of the loan: Provided, That the provisions of this subdivision may not apply to reverse mortgage loans obtained under article twenty-four, chapter forty-seven of this code, home equity, open-end lines of credit, bridge loans used in connection with the purchase or construction of a new residential dwelling or commercial loans for multiple residential purchases;

     (8) Secure a primary or subordinate mortgage loan in a principal amount that, when added to the aggregate total of the outstanding principal balances of all other primary or subordinate mortgage loans secured by the same property, exceeds the fair market value of the property on the date that the latest mortgage loan is made. For purposes of this paragraph, a broker or lender may rely upon a bona fide written appraisal of the property made by an independent third-party appraiser, duly licensed or certified by the West Virginia Real Estate Appraiser Licensing and Certification Board and prepared in compliance with the uniform standards of professional appraisal practice: Provided, That commencing January 1, 2012, and continuing until January 1, 2015, this prohibition does not apply to any mortgage modification or refinancing loan made in participation with and in compliance with the federal Homes Affordable Modification Program, a part of the federal Making Home Affordable program, or any other mortgage modification or refinancing loan funded through any other federal or state program or litigation settlement;

     (9) Advise or recommend that the consumer not make timely payments on an existing loan preceding loan closure of a refinancing transaction; or

     (10) Knowingly violate any provision of any other applicable state or federal law regulating primary or subordinate mortgage loans, including, without limitation, chapter forty-six-a of this code.
WVC 31 - 17 - 9 §31-17-9. Disclosure; closing statements; other records required; record-keeping requirements.
(a) Any licensee or person making on his or her own behalf, or as agent, broker or in other representative capacity on behalf of any other person, a primary or subordinate mortgage loan shall at the time of the closing furnish to the borrower a complete and itemized closing statement which shall show in detail:

(1) The amount and date of the note or primary and subordinate mortgage loan contract and the date of maturity;

(2) The nature of the security;

(3) The finance charge rate per annum and the itemized amount of finance charges and additional charges;

(4) The principal and total of payments;

(5) Disposition of the principal;

(6) A description of the payment schedule;

(7) The terms on which additional advances, if any, will be made;

(8) The charge to be imposed for past-due installments;

(9) A description and the cost of insurance required by the lender or purchased by the borrower in connection with the primary or subordinate mortgage loan;

(10) The name and address of the borrower and of the lender; and

(11) That the borrower may prepay the primary or subordinate mortgage loan, in whole or in part, on any installment date and that the borrower will receive a rebate in full for any unearned finance charge.

Such detailed closing statement shall be signed by the broker, lender or closing representative and a completed and signed copy thereof is retained by the broker or lender and made available at all reasonable times to the borrower, the borrower's successor in interest to the residential property or the authorized agent of the borrower or the borrower's successor, until the time as the indebtedness is satisfied in full. Providing a HUD 1 or HUD 1A settlement statement that provides the disclosures required by this subsection and the residential mortgage disclosures required by federal law is considered to meet the requirements of this subsection.

The commissioner may, from time to time, by rules prescribe additional information to be included in a closing statement.

(b) Upon written request from the borrower, the holder of a primary or subordinate mortgage loan instrument shall deliver to the borrower, within ten business days from and after receipt of the written request, a statement of the borrower's account as required by subsection (2), section one hundred fourteen, article two, chapter forty-six-a of this code.

(c) Upon satisfaction of a primary or subordinate mortgage loan obligation in full, the holder of the instrument evidencing or securing the obligation shall comply with the requirements of section one, article twelve, chapter thirty-eight of this code in the prompt release of the lien which had secured the primary or subordinate mortgage loan obligation.

(d) Upon written request or authorization from the borrower, the holder of a primary or subordinate mortgage loan instrument shall send or otherwise provide to the borrower or his or her designee, within three business days after receipt of the written request or authorization, a payoff statement of the borrower's account. Except as provided by this subsection, no charge may be made for providing the payoff statement. Charges for the actual expenses associated with using a third-party courier delivery or expedited mail delivery service may be assessed when this type of delivery is requested and authorized by the borrower following disclosure to the borrower of its cost. The payoff information is provided by mail, telephone, courier, facsimile or other transmission as requested by the borrower or his or her designee.

(e) A licensee shall keep and maintain for thirty-six months after the date of final entry the business records regarding residential mortgage loans applied for, brokered, originated or serviced in the course of its business.


WVC 31 - 17 - 10 §31-17-10. Advertising requirements.
It shall be unlawful and an unfair trade practice for any person to cause to be placed before the public in this state, directly or indirectly, any false, misleading or deceptive advertising matter pertaining to primary or subordinate mortgage loans or the availability thereof: Provided, That this section shall not apply to the owner, publisher, operator or employees of any publication or radio or television station which disseminates such advertising matter without actual knowledge of the false or misleading character thereof.


WVC 31 - 17 - 11 §31-17-11. Records and reports; examination of records; analysis.
(a) Every lender and broker licensee shall maintain at his or her place of business in this state, if any, or if he or she has no place of business in this state, at his or her principal place of business outside this state, such books, accounts and records relating to all transactions within this article as are necessary to enable the commissioner to enforce the provisions of this article. All the books, accounts and records shall be preserved, exhibited to the commissioner and kept available as provided herein for the reasonable period of time as the commissioner may by rules require. The commissioner is hereby authorized to prescribe by rules the minimum information to be shown in the books, accounts and records.

(b) Each licensee shall file with the commissioner a report under oath or affirmation concerning his or her business and operations in this state for the preceding license year upon participation in the Nationwide Mortgage Licensing System and Registry and on a date established by the Nationwide Mortgage Licensing System and Registry. For license years 2008 and 2009, all licensees shall submit an annual report to the Division of Banking on or before March 15, 2009, and March 15, 2010, respectively, on a form prescribed by the commissioner.

(c) The commissioner may, at his or her discretion, make or cause to be made an examination of the books, accounts and records of every lender or broker licensee pertaining to primary and subordinate mortgage loans made in this state under the provisions of this article, for the purpose of determining whether each lender and broker licensee is complying with the provisions hereof and for the purpose of verifying each lender or broker licensee's annual report. If the examination is made outside this state, the licensee shall pay the cost thereof in like manner as applicants are required to pay the cost of investigations outside this state.

(d) The commissioner shall publish annually an aggregate analysis of the information furnished in accordance with the provisions of subsection (b) or (c) of this section, but the individual reports are not public records and may not be open to public inspection.

(e) The commissioner may enter into cooperative and information-sharing agreements with regulators in other states or with federal authorities to discharge his or her responsibilities under this article.


WVC 31 - 17 - 12 §31-17-12. Grounds for suspension or revocation of license; suspension and revocation generally; reinstatement or new license; penalties and fines for violation of this article.
     (a) The commissioner may suspend or revoke any broker or lender license issued hereunder if he or she finds that the licensee or any owner, director, officer, member, partner, stockholder, employee or agent of the licensee:

     (1) Has knowingly violated any provision of this article or any order, decision or rule of the commissioner lawfully made pursuant to the authority of this article;

     (2) Has knowingly made any material misstatement in the application for the license;

     (3) Does not have available the net worth required by the provisions of section four of this article, if applicable;

     (4) Has failed or refused to keep the bond required by this article in full force and effect, if applicable;

     (5) In the case of a foreign corporation, does not remain qualified to do business in this state;

     (6) Has committed any fraud or engaged in any dishonest activities with respect to any mortgage loan business in this state or failed to disclose any of the material particulars of any mortgage loan transaction in this state to anyone entitled to the information; or

     (7) Has otherwise demonstrated bad faith, dishonesty or any other quality indicating that the business of the licensee in this state has not been or will not be conducted honestly or fairly within the purpose of this article. It shall be a demonstration of bad faith and an unfair or deceptive act or practice to engage in a pattern of making loans where the consumer has insufficient sources of income to timely repay the debt and the lender had the primary intent to acquire the property upon default rather than to derive profit from the loan. This section may not limit any right the consumer may have to bring an action for a violation of section one hundred four, article six, chapter forty-six-a of this code in an individual case.

     The commissioner may also suspend or revoke the license of a licensee if he or she finds the existence of any ground upon which the license could have been refused or any ground which would be cause for refusing a license to the licensee were he or she then applying for the same. The commissioner may also suspend or revoke the license of a licensee pursuant to his or her authority under section thirteen, article two, chapter thirty-one-a of this code.

     (b) The suspension or revocation of the license of any licensee does not impair or affect the obligation of any preexisting lawful mortgage loan between the licensee and any obligor.

     (c) The commissioner may reinstate a suspended license, or issue a new license to a licensee whose license has been revoked, if the grounds upon which any license was suspended or revoked have been eliminated or corrected and the commissioner is satisfied that the grounds are not likely to recur.

     (d) In addition to the authority conferred under this section, the commissioner may impose a fine or penalty not exceeding$2,000 upon any lender or broker required to be licensed under this article who the commissioner determines has violated any of the provisions of this article. For the purposes of this section, each separate violation is subject to the fine or penalty provided in this section. Each day excluding Sundays and holidays, that an unlicensed person engages in the business or holds himself or herself out to the general public as a mortgage lender or broker is a separate violation.
WVC 31 - 17 - 13 §31-17-13. Notice of refusal, or suspension or revocation, of license; relinquishing license.
(a) Whenever the commissioner refuses to issue a license, or suspends or revokes a license, he shall make and enter an order to that effect and shall cause a copy of the order to be served in person or by certified mail, return receipt requested, or in any other manner in which process in a civil action in this state may be served, on the applicant or licensee, as the case may be. The commissioner shall also submit a copy of any such order for publication by the Nationwide Mortgage Licensing System and Registry.

(b) It shall be the duty of the licensee to comply with any such order: (i) Immediately if the license was suspended either following a hearing or for failure to keep the bond required by the provisions of section four of this article in full force and effect; or otherwise (ii) following expiration of the period provided in section fourteen of this article in which such licensee, if not previously provided the opportunity to a hearing on the matter, may demand a hearing before the commissioner without such demand having been timely made.


WVC 31 - 17 - 14 §31-17-14. Hearing before commissioner; provisions pertaining to hearing.
(a) Any applicant or licensee, as the case may be, adversely affected by an order made and entered by the commissioner in accordance with the provisions of section thirteen of this article, if not previously provided the opportunity to a hearing on the matter, may in writing demand a hearing before the commissioner. The commissioner may appoint a hearing examiner to conduct the hearing and prepare a recommended decision. The written demand for a hearing must be filed with the commissioner within thirty days after the date upon which the applicant or licensee was served with a copy of the order. The timely filing of a written demand for hearing shall stay or suspend execution of the order in question, pending a final determination, except for an order suspending a license for failure of the licensee to maintain the bond required by section four of this article in full force and effect. If a written demand is timely filed as aforesaid, the aggrieved party is entitled to a hearing as a matter of right.

(b) All of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply to and govern the hearing and the administrative procedures in connection with and following such hearing, with like effect as if the provisions of the article were set forth in extenso in this subsection.

(c) For the purpose of conducting any such hearing hereunder, the commissioner or appointed hearing examiner shall have the power and authority to issue subpoenas and subpoenas duces tecum in accordance with the provisions of section one, article five, chapter twenty-nine-a of this code. All subpoenas and subpoenas duces tecum are issued and served in the manner, within the time and for the fees and shall be enforced, as specified in the section, and all of the section provisions dealing with subpoenas and subpoenas duces tecum shall apply to subpoenas and subpoenas duces tecum issued for the purpose of a hearing hereunder.

(d) Any hearing shall be held within twenty days after the date upon which the commissioner received the timely written demand therefor unless there is a postponement or continuance. The commissioner or hearing examiner may postpone or continue any hearing on his or her own motion or for good cause shown upon the application of the aggrieved party. At any hearing, the aggrieved party may represent himself or herself or be represented by any attorney-at-law admitted to practice before any circuit court of this state.

(e) After the hearing and consideration of all of the testimony, evidence and record in the case, the commissioner shall make and enter an order affirming, modifying or vacating his or her earlier order, or shall make and enter an order as is considered appropriate, meet and proper. If the commissioner appoints a hearing examiner then the commissioner must issue his or her final order within fifteen days of receiving the recommended decision of the hearing examiner. The order shall be accompanied by findings of fact and conclusions of law as specified in section three, article five, chapter twenty-nine-a of this code and a copy of the order and accompanying findings and conclusions shall be served upon the aggrieved party and his or her attorney of record, if any, in person or by certified mail, return receipt requested, or in any other manner in which process in a civil action in this state may be served. The order of the commissioner is final unless vacated or modified on judicial review thereof in accordance with the provisions of section fifteen of this article.


WVC 31 - 17 - 15 §31-17-15. Judicial review.
(a) Any person adversely affected by a final order made and entered by the commissioner after hearing held in accordance with the provisions of section fourteen of this article is entitled to judicial review thereof. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code shall apply to and govern such review with like effect as if the provisions of said section were set forth in extenso in this section.

(b) The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the supreme court of appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.

(c) Legal counsel and services for the commissioner in all appeal proceedings in any circuit court and the supreme court of appeals shall upon request be provided by the attorney general or his assistants, all without additional compensation.


WVC 31 - 17 - 16 §31-17-16. Actions to enjoin violations.
(a) Whenever it appears to the commissioner that any person has been or is violating or is about to violate any provision of this article, any rules of the commissioner or any final order of the commissioner, the commissioner may apply in the name of the state, to the circuit court of the county in which the violation or violations, or any part thereof, has occurred, is occurring or is about to occur, or the judge thereof in vacation, for an injunction against such person and any other persons who have been, are or are about to be, involved in, or in any way participating in, any practices, acts or omissions, so in violation, enjoining such person or persons from any such violation or violations. Such application may be made and prosecuted to conclusion whether or not any such violation or violations have resulted or shall result in prosecution or conviction under the provisions of section eighteen of this article.

(b) Upon application by the commissioner as aforesaid, the circuit courts of this state may by mandatory or prohibitory injunction compel compliance with the provisions of this article, any rules of the commissioner and all final orders of the commissioner. The court may issue a temporary injunction in any case pending a decision on the merits of any application filed.

(c) The judgment of the circuit court upon any application permitted by the provisions of this section shall be final unless reversed, vacated or modified on appeal to the supreme court of appeals. Any such appeal shall be sought in the manner and within the time provided by law for appeals from circuit courts in other civil cases.

(d) The commissioner shall upon request be represented in all such proceedings by the attorney general or his assistants, all without additional compensation.


WVC 31 - 17 - 17 §31-17-17. Loans made in violation of this article void; agreements to waive article void.
(a) If any primary or subordinate mortgage loan is made in willful violation of the provisions of this article, except as a result of a bona fide error, such loan may be canceled by a court of competent jurisdiction.

(b) Any agreement whereby the borrower waives the benefits of this article shall be deemed to be against public policy and void.

(c) Any residential mortgage loan transaction in violation of this article shall be subject to an action, which may be brought in a circuit court having jurisdiction, by the borrower seeking damages, reasonable attorneys fees and costs.

(d) A licensee who, when acting in good faith in a lending transaction, inadvertently and without intention, violates any provision of this article or fails to comply with any provision of this article, will be excused from such violation if within thirty days of becoming aware of such violation, or being notified of such violation, and prior to the institution of any civil action or criminal proceeding against the licensee, the licensee notifies the borrower of the violation, makes full restitution of any overcharges, and makes all other adjustments as are necessary to make the lending transaction comply with this article.


WVC 31 - 17 - 18 §31-17-18. Violations and penalties.
(a) Any person, or any member, officer, director, agent or employee of such person, who violates or participates in the violation of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars, or imprisoned in a county or regional jail for not more than six months, or both fined and imprisoned, at the discretion of the court.

(b) The penalties and remedies embodied in this article are not exclusive, but are cumulative with other applicable provisions of this code, including, but not limited to, the consumer protection laws in chapter forty-six-a of this code.


WVC 31 - 17 - 19 §31-17-19. Severability.
If any provision of this article or its application to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other provisions or applications of the article, and to this end the provisions of this article are hereby declared to be severable.


WVC 31 - 17 - 20 §31-17-20. Effective date.
The amendments to this article enacted during the regular session of the Legislature in the year 2009 shall be effective as of July 1, 2009.


WVC 31 - 17 A- ARTICLE 17A. WEST VIRGINIA SAFE MORTGAGE LICENSING ACT.

WVC 31 - 17 A- 1 §31-17A-1. Purpose.
The activities of mortgage loan originators and the origination or offering of financing for residential real property have a direct, valuable and immediate impact upon West Virginia's consumers, West Virginia's economy, the neighborhoods and communities of West Virginia and the housing and real estate industry. The Legislature finds that accessibility to mortgage credit is vital to the state's citizens. The Legislature also finds that it is essential for the protection of the citizens of West Virginia and the stability of West Virginia's economy that reasonable standards for licensing and regulation of the business practices of mortgage loan originators be imposed. The Legislature further finds that the obligations of mortgage loan originators to consumers in connection with originating or making residential mortgage loans are such as to warrant the regulation of the mortgage lending process. The purpose of this article is to protect consumers seeking mortgage loans and to ensure that the mortgage lending industry is operating without unfair, deceptive and fraudulent practices on the part of mortgage loan originators.


WVC 31 - 17 A- 2 §31-17A-2. Definitions.
As used in this article:

(a) "Commissioner" means the Commissioner of Banking of this state;

(b) "Depository institution" has the same meaning as in section three of the Federal Deposit Insurance Act and includes any federally insured credit union; and,

(c) "Division" means the West Virginia Division of Banking;

(d) "Federal banking agencies" means the board of Governors of the Federal Reserve System, the Comptroller of the Currency, the Director of the Office of Thrift Supervision, the National Credit Union Administration and the Federal Deposit Insurance Corporation;

(e) "Immediate family member" means a spouse, child, sibling, parent, grandparent or grandchild. This includes stepparents, stepchildren, stepsiblings and adoptive relationships;

(f) "Individual" means a natural person; and,

(g) "Loan processor or underwriter" means an individual who performs clerical or support duties as an employee at the direction of and subject to the supervision and instruction of a person licensed or exempt from licensing under article seventeen of this chapter.

(1) For purposes of this paragraph, "clerical or support duties" may include subsequent to the receipt of an application:

(A) The receipt, collection, distribution and analysis of information common for the processing or underwriting of a residential mortgage loan; and,

(B) Communicating with a consumer to obtain the information necessary for the processing or underwriting of a loan, to the extent that such communication does not include offering or negotiating loan rates or terms, or counseling consumers about residential mortgage loan rates or terms; or

(2) An individual engaging solely in loan processor or underwriter activities shall not represent to the public, through advertising or other means of communicating or providing information, including the use of business cards, stationery, brochures, signs, rate lists or other promotional items, that such individual can or will perform any of the activities of a mortgage loan originator;

(h) "Mortgage loan originator" means an individual who for compensation or gain or in the expectation of compensation or gain takes a residential mortgage loan application or offers or negotiates terms of a residential mortgage loan and is sponsored by a mortgage lender, broker or regulated consumer lender licensed by the Division of Banking.

"Mortgage loan originator" does not include:

(1) An individual engaged solely as a loan processor or underwriter except as otherwise provided in section three of this article;

(2) A person or entity that only performs real estate brokerage activities and is licensed or registered in accordance with West Virginia law, unless the person or entity is compensated by a lender, a mortgage broker or other mortgage loan originator or by any agent of such lender, mortgage broker or other mortgage loan originator;

(3) A person or entity solely involved in extensions of credit relating to timeshare plans, as that term is defined in Section 101(53D) of Title 11, United States Code; or

(4) A manufactured or modular home retailer employee who performs purely administrative or clerical tasks and who receives only the customary salary or commission from the employer in connection with the sales transaction;

(i) "Real estate brokerage activity" means any activity that involves offering or providing real estate brokerage services to the public, including:

(1) Acting as a real estate salesperson or real estate broker for a buyer, seller, lessor or lessee of real property;

(2) Bringing together parties interested in the sale, purchase, lease, rental or exchange of real property;

(3) Negotiating, on behalf of any party, any portion of a contract relating to the sale, purchase, lease, rental or exchange of real property other than in connection with providing financing with respect to any such transaction;

(4) Engaging in any activity for which a person engaged in the activity is required to be registered or licensed as a real estate agent or real estate broker under any applicable law; and

(5) Offering to engage in any activity, or act in any capacity, described in subsection (1), (2), (3) or (4) of this section;

(j) "Nationwide Mortgage Licensing System and Registry" means a mortgage licensing system developed and maintained by the Conference of State Bank Supervisors and the American Association of Residential Mortgage Regulators for the licensing and registration of mortgage brokers and lenders licensed pursuant to article seventeen of this chapter and mortgage loan originators licensed pursuant to this article;

(k) "Nontraditional mortgage product" means any mortgage product other than a fixed rate mortgage;

(l) "Person" means a natural person, corporation, company, limited liability company, partnership or association;

(m) "Registered mortgage loan originator" means any individual who:

(1) Meets the definition of mortgage loan originator and is an employee of:

(A) A depository institution;

(B) A subsidiary that is:

(i) Owned and controlled by a depository institution; and

(ii) Regulated by a federal banking agency; or

(C) An institution regulated by the Farm Credit Administration; and

(2) Is registered with, and maintains a unique identifier through, the Nationwide Mortgage Licensing System and Registry;

(n) "Residential mortgage loan" means any loan primarily for personal, family or household use that is secured by a mortgage, deed of trust or other equivalent consensual security interest on a dwelling as defined in Section 103(v) of the Truth in Lending Act or residential real estate upon which is constructed or intended to be constructed a dwelling;

(o) "Residential real estate" means any real property located in West Virginia, upon which is constructed or intended to be constructed a dwelling; and

(p) "Unique identifier" means a number or other identifier assigned by protocols established by the Nationwide Mortgage Licensing System and Registry.


WVC 31 - 17 A- 3 §31-17A-3. License and registration required.
(a) An individual, unless specifically exempted under subsection (c) of this section, shall not engage in the business of a mortgage loan originator with respect to any dwelling located in this state without first obtaining and maintaining annually a license under this article. Each licensed mortgage loan originator must register with and maintain a valid unique identifier issued by the Nationwide Mortgage Licensing System and Registry. A Mortgage loan originator licensed under this article may be employed by, or under contract to provide mortgage loan originator services for, only one entity licensed or exempt from licensing under article seventeen of this chapter at any time.

(b) To facilitate an orderly transition to licensing and minimize disruption in the mortgage marketplace, the effective date for subsection (a) of this section:

(1) For all individuals other than individuals described in subdivision (2) of this subsection shall be January 31, 2010; and

(2) For all individuals licensed as mortgage loan originators before July 1, 2009, shall be January 1, 2011.

(c) The following are exempt from this article:

(1) Registered Mortgage Loan Originators, when acting for an entity described in subdivision (11), section two of this article;

(2) Any individual who offers or negotiates terms of a residential mortgage loan with or on behalf of an immediate family member of the individual;

(3) Any individual who offers or negotiates terms of a residential mortgage loan secured by a dwelling that served as the individual's residence; and

(4) A licensed attorney who negotiates the terms of a residential mortgage loan on behalf of a client as an ancillary matter to the attorney's representation of the client, unless the attorney is compensated by a lender, a mortgage broker or other mortgage loan originator or by any agent of such lender, mortgage broker or other mortgage loan originator.

(d) A loan processor or underwriter who is an independent contractor may not engage in the activities of a loan processor or underwriter unless such independent contractor loan processor or underwriter obtains and maintains a license under subsection (a) of this section. Each independent contractor loan processor or underwriter licensed as a mortgage loan originator must have and maintain a valid unique identifier issued by the Nationwide Mortgage Licensing System and Registry.

(e) To implement an orderly and efficient licensing and transition process, the commissioner may establish interim policies and procedures for licensing and acceptance of applications as follows:

(1) Mortgage loan originators employed by or under exclusive contract to licensed mortgage brokers after the effective date of this article shall submit an application on a form prescribed by the commissioner, including all necessary information, fees and authorizations for investigation as the commissioner may determine necessary, and must meet the standards for licensure set forth in this article. Any license issued under this subdivision and any license current as of the effective date of this article will expire on December 31, 2010: Provided, That notwithstanding the licensing requirements under this section, an individual acting exclusively as an employee of a servicer who is engaging in loss mitigation efforts with respect to an existing mortgage transaction serviced by his or her employer is not required to meet the education, testing, background and licensing standards of this article until July 1, 2011, to the extent that this extension of time is not denied by guideline, rule, regulation or interpretive letter issued by the United States Department of Housing and Urban Development. In the event this extension of time is denied, such individuals shall apply for a license under this section within ninety days of the denial; and

(2) Mortgage loan originators employed by or under exclusive contract to licensed mortgage lenders and regulated consumer lenders shall comply with this article and submit all applications through the Nationwide Mortgage Licensing System and Registry on or before January 31, 2010.


WVC 31 - 17 A- 4 §31-17A-4. State license application and issuance.
(a) Applicants for a license must apply in a form as prescribed by the commissioner. Each form shall contain content as set forth by instruction or procedure of the commissioner and may be changed or updated as necessary by the commissioner in order to carry out the purposes of this article. The application must be submitted with an application fee of $50 plus the actual cost of fingerprint processing, together with any processing fee assessed by the Nationwide Mortgage Licensing System and Registry. The commissioner may elect to reduce or waive the application fees for mortgage loan originators employed by bona fide nonprofit organizations or other community housing development organizations that serve the housing needs of households or persons below the HUD-established median income for their area of residence. Any waiver of fees or other costs under this paragraph shall not be construed as a waiver of the duty to comply with all other provisions of this article.

(b) The commissioner is authorized to establish relationships or contracts with the Nationwide Mortgage Licensing System and Registry or other entities designated by the Nationwide Mortgage Licensing System and Registry to collect and maintain records and process transaction fees or other fees related to licensees or other persons subject to this article.

(c) In connection with an application for licensing as a mortgage loan originator, the applicant shall, at a minimum, furnish to the Nationwide Mortgage Licensing System and Registry information concerning the applicant's identity, including:

(1) Fingerprints for submission to the Federal Bureau of Investigation and any governmental agency or entity authorized to receive such information for a state, national and international criminal history background check; and

(2) Personal history and experience in a form prescribed by the Nationwide Mortgage Licensing System and Registry and the commissioner, including the submission of authorization for the Nationwide Mortgage Licensing System and Registry and the commissioner to obtain:

(A) An independent credit report obtained from a consumer reporting agency described in Section 603(p) of the Fair Credit Reporting Act; and

(B) Information related to any administrative, civil or criminal findings by any governmental jurisdiction.

(d) To reduce the points of contact which the Federal Bureau of Investigation may have to maintain, the commissioner may use the Nationwide Mortgage Licensing System and Registry or its designated vendor as a channeling agent for requesting information from and distributing information to the Department of Justice or any governmental agency.

(e) To reduce the points of contact which the commissioner may have to maintain, the commissioner may use the Nationwide Mortgage Licensing System and Registry as a channeling agent for requesting and distributing information to and from any source so directed by the commissioner.

(f) Nonresident mortgage loan originators licensed under this article by their acceptance of the license acknowledge that they are subject to the jurisdiction of the courts of West Virginia and the service of process pursuant to section one hundred thirty-seven, article two, chapter forty-six-a of this code and section thirty-three, article three, chapter fifty-six of this code.

(g) The Commissioner may grant a provisional license to a mortgage loan originator who has met all other requirements for licensing under this article but: (1) has not passed a test regarding West Virginia mortgage laws and regulations required for licensure: Provided, That the provisionally licensed mortgage loan originator takes and passes that test within sixty days of the test becoming available; or (2) for whom the Commissioner has not received the results of a criminal background check despite the good faith effort of the applicant to provide in a timely manner the information necessary to obtain a criminal background check.


WVC 31 - 17 A- 5 §31-17A-5. Issuance of license.
The commissioner may not issue a mortgage loan originator license unless the commissioner makes at a minimum the following findings:

(a) The applicant has never had a mortgage loan originator license revoked in any governmental jurisdiction, except that a subsequent formal vacation of the revocation may not be considered a revocation.

(b) The applicant has not been convicted of, or pled guilty or nolo contendere to, a felony in a domestic, foreign or military court: Provided, That any pardon of a conviction may not be a conviction for purposes of this subsection:

(1) During the seven-year period preceding the date of the application for licensing and registration; or

(2) At any time preceding the date of application if the felony involved an act of fraud, dishonesty or a breach of trust, or money laundering.

(c) The applicant has demonstrated financial responsibility, character and general fitness such as to command the confidence of the community and to warrant a determination that the mortgage loan originator will operate honestly, fairly and efficiently within the purposes of this article.

For purposes of this subsection a person has shown that he or she is not financially responsible when he or she has shown a disregard in the management of his or her own financial condition. The commissioner shall not use a credit score as the sole basis for license denial. A determination that an individual has not shown financial responsibility may include, but not be limited to:

(1) Current outstanding judgments, except judgments solely as a result of medical expenses;

(2) Current outstanding tax liens or other government liens and filings;

(3) Foreclosures within the past three years; and

(4) A pattern of seriously delinquent accounts within the past three years.

(d) The applicant has completed the prelicensing education requirement described in section six of this article.

(e) The applicant has passed a written test that meets the test requirement described in section seven of this article.

(f) The applicant has met the surety bond requirement as required pursuant to section thirteen of this article.


WVC 31 - 17 A- 6 §31-17A-6. Prelicensing and relicensing education of loan originators.
(a) To meet the prelicensing education requirement, a person must complete at least twenty-two hours of education approved in accordance with subsection (b) of this section, which shall include at least:

(1) Three hours of federal law and regulations;

(2) Three hours of ethics, which shall include instruction on fraud, consumer protection and fair lending issues;

(3) Two hours of training related to lending standards for the nontraditional mortgage product marketplace; and

(4) Two hours of training related to West Virginia mortgage and consumer laws or issues.

(b) For purposes of subsection (a) of this section, prelicensing education courses shall be reviewed and approved by the Nationwide Mortgage Licensing System and Registry or the Division based upon reasonable standards. Review and approval of a prelicensing education course shall include review and approval of the course provider.

(c) Nothing in this section precludes any prelicensing education course, as approved by the Nationwide Mortgage Licensing System and Registry or the Division, that is provided by the employer of the applicant or an entity which is affiliated with the applicant by an agency contract, or any subsidiary or affiliate of such employer or entity.

(d) Prelicensing education may be offered either in a classroom, online or by any other means approved by the Nationwide Mortgage Licensing System and Registry.

(e) The prelicensing education requirements approved by the Nationwide Mortgage Licensing System and Registry or the Division in subdivisions (1), (2) and (3) subsection (a) of this section for any state shall be accepted as credit towards completion of prelicensing education requirements in West Virginia.

(f) A person previously licensed under this article subsequent to July 1, 2009, applying to be licensed again must prove that they have completed all of the continuing education requirements for the year in which the license was last held.


WVC 31 - 17 A- 7 §31-17A-7. Testing of loan originators.
(a) To meet the written test requirement, an individual must pass, in accordance with the standards established under this subsection, a qualified written test developed by the Nationwide Mortgage Licensing System and Registry and administered by a test provider approved by the Nationwide Mortgage Licensing System and Registry based upon reasonable standards.

(b) A written test may not be treated as a qualified written test for purposes of subsection (a) of this section unless the test adequately measures the applicant's knowledge and comprehension in appropriate subject areas, including:

(1) Ethics;

(2) Federal law and regulation pertaining to mortgage origination;

(3) State law and regulation pertaining to mortgage origination; and

(4) Federal and state law and regulation, including instruction on fraud, consumer protection, the nontraditional mortgage marketplace and fair lending issues.

(c) Nothing in this section prohibits a test provider approved by the Nationwide Mortgage Licensing System and Registry from providing a test at the location of the employer of the applicant or the location of any subsidiary or affiliate of the employer of the applicant or the location of any entity with which the applicant holds an exclusive arrangement to conduct the business of a mortgage loan originator.

(d) An individual may not be considered to have passed a qualified written test unless the individual achieves a test score of not less than seventy-five percent correct answers to questions.

(e) An individual may retake a test three consecutive times with each consecutive taking occurring at least thirty days after the preceding test. After failing three consecutive tests, an individual must wait at least six months before taking the test again.

(f) A licensed mortgage loan originator who fails to maintain a valid license for a period of five consecutive years or longer must retake the test, not taking into account any time during which the individual is a registered mortgage loan originator.


WVC 31 - 17 A- 8 §31-17A-8. Standards for license renewal.
(a) The minimum standards for license renewal for mortgage loan originators shall include the following:

(1) The mortgage loan originator continues to meet the minimum standards for license issuance under section five of this article;

(2) The mortgage loan originator has satisfied the annual continuing education requirements described in section nine of this article; and

(3) The mortgage loan originator has paid all required fees for renewal of the license.

(b) The license of a mortgage loan originator failing to satisfy the minimum standards for license renewal shall expire. The commissioner may adopt procedures for the reinstatement of expired licenses consistent with the standards established by the Nationwide Mortgage Licensing System and Registry.


WVC 31 - 17 A- 9 §31-17A-9. Continuing education for mortgage loan originators.
(a) To meet the annual continuing education requirements, a licensed mortgage loan originator must complete at least eight hours of education approved in accordance with subsection (b) of this section, which shall include at least:

(1) Three hours of federal law and regulations;

(2) Two hours of ethics, which shall include instruction on fraud, consumer protection and fair lending issues;

(3) Two hours of training related to lending standards for the nontraditional mortgage product marketplace; and

(4) One hour of West Virginia law or regulations.

(b) For purposes of subsection (a) of this section, continuing education courses shall be reviewed and approved by the Nationwide Mortgage Licensing System and Registry or the Division based upon reasonable standards. Review and approval of a continuing education course shall include review and approval of the course provider.

(c) Nothing in this section precludes any education course, as approved by the Nationwide Mortgage Licensing System and Registry, that is provided by the employer of the mortgage loan originator or an entity which is affiliated with the mortgage loan originator by an agency contract, or any subsidiary or affiliate of the employer or entity.

(d) Continuing education may be offered either in a classroom, online or by any other means approved by the Nationwide Mortgage Licensing System and Registry.

(e) A licensed mortgage loan originator:

(1) Except for subsection (b), section eight of this article and subsection (i) of this section, may only receive credit for a continuing education course in the year in which the course is taken; and

(2) May not take the same approved course in the same or successive years to meet the annual requirements for continuing education.

(f) A licensed mortgage loan originator who is an approved instructor of an approved continuing education course may receive credit for the licensed mortgage loan originator's own annual continuing education requirement at the rate of two hours credit for every one hour taught.

(g) A person having successfully completed the education requirements approved by the Nationwide Mortgage Licensing System and Registry in subdivisions (1), (2) and (3), subsection (a) of this section for any state shall be accepted as credit towards completion of continuing education requirements in West Virginia.

(h) A licensed mortgage loan originator who subsequently becomes unlicensed must complete the continuing education requirements for the last year in which the license was held prior to issuance of a new or renewed license.

(i) A person meeting the renewal requirements of subsections (a)(1) and (3) of section eight may make up any deficiency in continuing education as established by the commissioner.


WVC 31 - 17 A- 10 §31-17A-10. Authority to require license.
In addition to any other duties imposed upon the commissioner by law, the commissioner shall require mortgage loan originators to be licensed and registered through the Nationwide Mortgage Licensing System and Registry. The commissioner is authorized to participate in the Nationwide Mortgage Licensing System and Registry to carry out this requirement. The commissioner may establish requirements as necessary, including, but not limited to:

(1) Background checks for:

(A) Criminal history through fingerprint or other databases;

(B) Civil or administrative records;

(C) Credit history; or

(D) Any other information as deemed necessary by the Nationwide Mortgage Licensing System and Registry.

(2) The payment of fees to apply for or renew licenses through the Nationwide Mortgage Licensing System and Registry;

(3) The setting or resetting as necessary of renewal or reporting dates;

(4) Requirements for amending or surrendering a license; and

(5) Any other activities the commissioner deems necessary for participation in the Nationwide Mortgage Licensing System and Registry.


WVC 31 - 17 A- 11 §31-17A-11. Nationwide Mortgage Licensing System and Registry information challenge process.
The commissioner shall establish a process in accordance with the Administrative Procedures Act, provided in article five, chapter twenty-nine-a of this code, whereby mortgage loan originators may challenge information entered into the Nationwide Mortgage Licensing System and Registry by the commissioner.


WVC 31 - 17 A- 12 §31-17A-12. Enforcement authorities, violations and penalties.
(a) To ensure the effective supervision and enforcement of this article, the commissioner may:

(1) Deny, suspend, revoke, condition or decline to renew a license issued under this article for a violation of this article or rules or order or directive entered under this article;

(2) Deny, suspend, revoke, condition or decline to renew a license if an applicant or licensee fails at any time to meet the requirements of section five or eight of this article, or withholds information or makes a material misstatement in an application for a license or renewal of a license;

(3) Order restitution against persons subject to this article for violations of this article;

(4) Impose civil administrative penalties on persons subject to this article pursuant to subsections (b), (c) and (d) of this section; and

(5) Issue orders or directives under this article as follows:

(A) Order or direct persons subject to this article to cease and desist from conducting business, including immediate temporary orders to cease and desist;

(B) Order or direct persons subject to this article to cease any harmful activities or violations of this article, including immediate temporary orders to cease and desist;

(C) Enter immediate temporary orders to cease business under a license or interim license issued pursuant to the authority granted under section three if the commissioner determines that such license was erroneously issued or the licensee is currently in violation of this article; and

(D) Order or direct such other affirmative action as the commissioner deems necessary.

(b) The commissioner may impose a civil administrative penalty on a mortgage loan originator or person subject to this article if the commissioner finds, on the record after notice and opportunity for hearing, that such mortgage loan originator or person subject to this article has violated or failed to comply with any requirement of this article or any rule prescribed by the commissioner under this article or order issued under authority of this article.

(c) The maximum amount of penalty for each act or omission described in subsection (b) of this section shall be $25,000.

(d) Each violation or failure to comply with any directive or order of the commissioner is a separate and distinct violation or failure.

(e) If the commissioner takes any enforcement action under this article, he or she shall enter an order to that effect and shall cause a copy of that order to be served in person or by certified mail, return receipt requested, or in any other manner in which process in a civil action in this state may be served, on the applicant or licensee. The commissioner shall also submit a copy of the order for publication in the Nationwide Mortgage Licensing System and Registry when that functionality of the system becomes available. An applicant or licensee adversely affected by an order may request an appeal and shall be provided a hearing as provided in section fourteen, article seventeen of this chapter.


WVC 31 - 17 A- 13 §31-17A-13. Surety bond required.
(a) Each mortgage loan originator must be covered by a surety bond in accordance with this section in favor of the state for the benefit of consumers or for a claim by the commissioner for an unpaid civil administrative penalty or unpaid examination invoice. If the mortgage loan originator is an employee or exclusive agent of a person subject to this article, article seventeen of this chapter, or article four, chapter forty-six-a of this code, the surety bond of that person may be used in lieu of the mortgage loan originator's individual surety bond requirement. Any person not subject to licensing as a mortgage lender or broker under article seventeen, chapter thirty-one of this code or article four, chapter forty-six-a of this code that employs a mortgage loan originator licensed under this article may elect to register with the Nationwide Mortgage Licensing System and Registry and provide a surety bond in the appropriate amount for the mortgage loan originator employed.

(1) The surety bond must provide coverage for each mortgage loan originator in an amount as prescribed in subsection (b) of this section.

(2) The surety bond shall be in a form as prescribed by the commissioner.

(3) The commissioner may promulgate rules with respect to the requirements for such surety bonds as are necessary to accomplish the purposes of this article.

(b) The penal sum of the surety bond shall be maintained in an amount as required by article seventeen of this chapter for licensed mortgage lenders and brokers or article four, chapter forty-six-a of this code for regulated consumer lenders.

(c) When an action is commenced on a licensee's bond or any bond covering the activities of a licensee under this article, the commissioner may require the filing of a new bond.

(d) Immediately upon recovery upon any action on a bond covering any licensee under this article, a new bond shall be filed.

(e) The commissioner may elect to reduce or waive the bond amounts imposed by this section for mortgage loan originators employed by bona fide nonprofit corporations or other bona fide nonprofit business entities, including community housing development organizations, or any agency or instrumentality of this state, federal, county or municipal government whose residential mortgage lending or brokering activities provide housing primarily to households or persons below the HUD-established median income for their area of residence if the commissioner determines that a reduction or waiver would not violate any applicable law. Any waiver of fees or other costs under this paragraph shall not be construed as a waiver of the duty to comply with all other provisions of this article.


WVC 31 - 17 A- 14 §31-17A-14. Confidentiality.
(a) Except as otherwise provided in Public Law 110-289, Section 1512, the requirements under any federal law or any provision of this code regarding the privacy or confidentiality of any information or material provided to the Nationwide Mortgage Licensing System and Registry, and any privilege arising under federal or state law, including the rules of any federal or state court, with respect to the information or material, shall continue to apply to the information or material after the information or material has been disclosed to the Nationwide Mortgage Licensing System and Registry. This information and material may be shared with all state and federal regulatory officials with mortgage industry oversight authority without the loss of privilege or the loss of confidentiality protections provided by federal law or any provision of this code.

(b) For these purposes, the commissioner is authorized to enter agreements or sharing arrangements with other governmental agencies, the Conference of State Bank Supervisors, the American Association of Residential Mortgage Regulators or other associations representing governmental agencies as established by rule or order of the commissioner.

(c) Information or material that is subject to a privilege or confidentiality under subsection (a) of this section may not be subject to:

(1) Disclosure under any federal or state law governing the disclosure to the public of information held by an officer or an agency of the federal government or the respective state; or

(2) Subpoena or discovery, or admission into evidence, in any private civil action or administrative process, unless with respect to any privilege held by the Nationwide Mortgage Licensing System and Registry with respect to the information or material, the person to whom the information or material pertains waives, in whole or in part, in the discretion of that person, the privilege.

(d) Any provision of this code relating to the disclosure of confidential supervisory information or any information or material described in subsection (a) of this section that is inconsistent with said subsection shall be superseded by the requirements of this section.

(e) This section does not apply with respect to the information or material relating to the employment history of, and publicly adjudicated disciplinary and enforcement actions against, mortgage loan originators that is included in the Nationwide Mortgage Licensing System and Registry for access by the public.


WVC 31 - 17 A- 15 §31-17A-15. Investigation and examination authority.
(a) For purposes of initial licensing, license renewal, license suspension, license conditioning, license revocation or termination, or general or specific inquiry or investigation to determine compliance with this article, the commissioner may access, receive and use any books, accounts, records, files, documents, information or evidence including, but not limited to:

(1) Criminal, civil and administrative history information, including nonconviction data;

(2) Personal history and experience information including independent credit reports obtained from a consumer reporting agency described in Section 603(p) of the Fair Credit Reporting Act; and

(3) Any other documents, information or evidence the commissioner deems relevant to the inquiry or investigation regardless of the location, possession, control or custody of such documents, information or evidence.

(b) For the purposes of investigating violations or complaints arising under this article, or for the purposes of examination, the commissioner may review, investigate or examine any licensee, individual or person subject to this article and his or her employer or sponsoring company as often as necessary. The commissioner may direct, subpoena or order the attendance of and examine under oath all persons whose testimony may be required about the loans or the business or subject matter of any such examination or investigation, and may direct, subpoena or order such person to produce books, accounts, records, files and any other documents the commissioner deems relevant to the inquiry.

(c) Each licensee, individual or person subject to this article, including his or her employer or sponsoring company, must make available to the commissioner upon request the books and records relating to the operations of the licensee, individual or person subject to this article. The commissioner shall have access to the books and records and interview the officers, principals, mortgage loan originators, employees, independent contractors, agents and customers of the licensee, individual or person subject to this article concerning their business.

(d) Each licensee, individual or person subject to this article, including his or her employer or sponsoring company, shall make or compile reports or prepare other information as directed by the commissioner in order to carry out the purposes of this section, including, but not limited to:

(1) Accounting compilations;

(2) Information lists and data concerning loan transactions in a format prescribed by the commissioner; or

(3) Such other information considered necessary to carry out the purposes of this section.

(e) In making any examination or investigation authorized by this article, the commissioner may control access to any documents and records of the licensee or person under examination or investigation. The commissioner may take possession of the documents and records or place a person in exclusive charge of the documents and records in the place where they are usually kept. During the period of control, an individual or person may not remove or attempt to remove any of the documents and records except pursuant to a court order or with the consent of the commissioner. Unless the commissioner has reasonable grounds to believe the documents or records of the licensee have been, or are at risk of being, altered or destroyed for purposes of concealing a violation of this article, the licensee or owner of the documents and records shall have access to the documents or records as necessary to conduct its ordinary business affairs.

(f) In order to carry out the purposes of this section, the commissioner may:

(1) Retain attorneys, accountants or other professionals and specialists as examiners, auditors or investigators to conduct or assist in the conduct of examinations or investigations;

(2) Enter into agreements or relationships with other government officials or regulatory associations in order to improve efficiencies and reduce regulatory burden by sharing resources, standardized or uniform methods or procedures and documents, records, information or evidence obtained under this section;

(3) Use, hire, contract or employ public or privately available analytical systems, methods or software to examine or investigate the licensee, individual or person subject to this article;

(4) Accept and rely on examination or investigation reports made by other government officials, within or without this state; or

(5) Accept audit reports made by an independent certified public accountant for the licensee, individual or person subject to this article in the course of that part of the examination covering the same general subject matter as the audit and may incorporate the audit report in the report of the examination, report of investigation or other writing of the commissioner.

(g) The authority of this section shall remain in effect whether a licensee, individual or person subject to this article acts or claims to act under any licensing or registration law of this state or claims to act without that authority.

(h) A licensee, individual or person subject to investigation or examination under this section may not knowingly withhold, abstract, remove, mutilate, destroy or secrete any books, records, computer records or other information.


WVC 31 - 17 A- 16 §31-17A-16. Prohibited acts and practices.
It is a violation of this article for a person or individual subject to this article to:

(1) Directly or indirectly employ any scheme, device or artifice to defraud or mislead borrowers or lenders or to defraud any person.

(2) Engage in any unfair or deceptive practice toward any person.

(3) Obtain property by fraud or misrepresentation.

(4) Solicit or enter into a contract with a borrower that provides in substance that the person or individual subject to this article may earn a fee or commission through "best efforts" to obtain a loan even though no loan is actually obtained for the borrower.

(5) Solicit, advertise or enter into a contract for specific interest rates, points, or other financing terms unless the terms are actually available at the time of soliciting, advertising or contracting.

(6) Conduct any business covered by this article without holding a valid license as required under this article, or assist or aide and abet any person in the conduct of business under this article without a valid license as required under this article.

(7) Fail to make disclosures as required by this article and any other applicable state or federal law including rules and regulations thereunder.

(8) Fail to comply with this article or rules promulgated under this article, or fail to comply with any other state or federal law, including the rules and regulations thereunder, applicable to any business authorized or conducted under this article.

(9) Make, in any manner, any false or deceptive statement or representation with regard to the rates, points or other financing terms or conditions for a residential mortgage loan, or engage in bait and switch advertising.

(10) Negligently make any false statement or knowingly and willfully make any omission of material fact in connection with any information or reports filed with a governmental agency or the Nationwide Mortgage Licensing System and Registry or in connection with any investigation conducted by the commissioner or another governmental agency.

(11) Make any payment, threat or promise, directly or indirectly, to any person for the purposes of influencing the independent judgment of the person in connection with a residential mortgage loan, or make any payment threat or promise, directly or indirectly, to any appraiser of a property for the purposes of influencing the independent judgment of the appraiser with respect to the value of the property.

(12) Collect, charge, attempt to collect or charge or use or propose any agreement purporting to collect or charge any fee prohibited by this article.

(13) Cause or require a borrower to obtain property insurance coverage in an amount that exceeds the replacement cost of the improvements as established by the property insurer.

(14) Fail to truthfully account for moneys belonging to a party to a residential mortgage loan transaction.


WVC 31 - 17 A- 17 §31-17A-17. Report to mortgage licensing system and registry.
The commissioner is required to report violations of this act, as well as enforcement actions and other relevant information to the Nationwide Mortgage Licensing System and Registry subject to the provisions of section fourteen of this article.


WVC 31 - 17 A- 18 §31-17A-18. Unique identifier shown.
The unique identifier of any person originating a residential mortgage loan must be clearly shown on all residential mortgage loan application forms, solicitations or advertisements, including business cards or websites, and any other documents as established by rule or order of the commissioner.


WVC 31 - 17 A- 19 §31-17A-19. Severability.
If any provision of this article or its application to any person or circumstance is held invalid, the remainder of the article or the application of the provision to other persons or circumstances is not affected.


WVC 31 - 17 A- 20 §31-17A-20. Effective date.
The effective date of this article shall be July 1, 2009.


WVC 31 - 18 - ARTICLE 18. WEST VIRGINIA HOUSING DEVELOPMENT FUND.


WVC 31 - 18 - 1 §31-18-1. Short title.
This article shall be known and may be cited as the "West Virginia Housing Development Fund Act."


WVC 31 - 18 - 2 §31-18-2. Legislative findings and purpose.

(a) The Legislature hereby finds and declares that as a result of public actions involving highways, public facilities, flood-control projects and urban renewal activities, and as a result of the spread of slum conditions and blight to formerly sound urban and rural neighborhoods, there exists in the state of West Virginia a serious shortage of sanitary, decent and safe residential housing available at low prices or rentals to persons and families of low and moderate income. This shortage is severe in certain urban areas of the state, is especially critical in the rural areas of West Virginia, and is inimical to the health, welfare and prosperity of all residents of the state and to the sound growth of West Virginia communities.

(b) The Legislature hereby finds and declares further that private enterprise and investment have not been able to produce, without assistance, the needed construction of sanitary, decent and safe residential housing at low prices or rentals which persons and families of low and moderate income can afford, to provide sufficient long-term mortgage financing for residential housing for occupancy by persons and families of low and moderate income or to achieve the urgently needed rehabilitation of much of the present low and moderate income housing stock. It is imperative that the supply of residential housing for persons and families displaced by public actions or natural disaster be increased; that private enterprise and investment be encouraged both to sponsor land development for residential housing for such persons and families and to sponsor, build and rehabilitate residential housing for such persons and families; and that private financing be supplemented by financing as in this article provided, to help prevent the recurrence of slum conditions and blight and assist in their permanent elimination throughout West Virginia.

(c) The Legislature hereby finds and declares further that experience has demonstrated that concentration in residential housing developments, or residential housing areas, of only persons and families who, without some form of private or public assistance, do not have incomes sufficient to afford sanitary, decent and safe residential housing, frequently does not eliminate, or avoid, undesirable social conditions and frequently does not permanently eliminate, or avoid, slum conditions, and that in such instances occupancy of some of the residential housing units in such residential housing developments, or residential housing areas, by persons and families of higher income is desirable and beneficial in achieving the stated public purposes for enacting this legislation.

(d) The Legislature hereby finds and declares further that depressed economic conditions in this state and a related lack of employment and business opportunities caused thousands of people to leave this state to find employment elsewhere; that such depressed economic conditions and related exodus of population adversely affected the property tax base of this state, adversely affected the excise tax base of this state, diminished the manpower resources of this state necessary for modern mining, industrial and commercial operations and development in this state, caused the population of this state to include a disproportionately high number of elderly, disabled and economically disadvantaged persons, resulted in the spread of slum conditions and blight to formerly sound urban and rural neighborhoods, retarded, and continue to retard, the repair and improvement of existing residential housing and the construction of new residential housing, adversely affected, and continue to adversely affect, land development, including the extension and construction of water systems, nonpolluting sewer systems, other utility facilities and off- highway streets and roads essential to new industrial, commercial and residential housing development, critically restricted, and continue to critically restrict, the construction of public housing for occupancy by persons and families at the lowest level of the low and moderate income segment of the population of this state, critically restricted, and continue to critically restrict, the opportunities of persons and families at all levels of the low and moderate income segment of the population of this state for improved residential housing, either newly constructed or which would normally become available to them when vacated by persons and families of higher income occupying newly constructed residential housing, and critically restricted, and continue to critically restrict, the construction of new residential housing, including, but not limited to, nursing homes and intermediate care facilities, of design and location suitable for occupancy by disabled and by elderly persons; that as a result of public actions involving highways, public facilities, flood-control projects and urban-renewal activities undertaken as a part of the programs of this state to improve economic conditions and increase employment opportunities in this state with a view to improving the health, welfare and prosperity of residents of this state and reversing the outward movement of population in this state, extensive areas which are suitable for industrial, commercial and residential housing uses have been, or in the near future will be, opened up for development for such purposes but in many instances will be without the land development, including water and nonpolluting sewer systems, other utility facilities and off-highway street and road improvements essential to use of the same for such purposes; that as a result of the unique physical, economic, demographic and other characteristics of this state, including its rugged mountainous terrain, scarcity of land at low or moderate cost suitable for residential housing, low population density and cultural preferences which are not suited for the denser, larger-scale housing projects typical of more urban areas and high costs of land development and housing construction, the difficulties of providing land development, including water and nonpolluting sewer systems, other utility facilities and off-highway streets and roads, and of providing residential housing, are unusually severe within this state and have restricted and continue to restrict, land development and housing construction needed for the people of the state; that as a direct consequence of the foregoing there exists in this state a serious shortage of sanitary, decent and safe residential housing available for occupancy by persons and families of all but the highest income levels and there exists in this state a serious shortage of water and nonpolluting sewer systems, other utility facilities and off-highway street and road developments essential to utilization of land for industrial, commercial and residential housing purposes which, due to public actions involving highways, public facilities, flood-control projects and urban-renewal activities, is, or will soon become, available for needed industrial, commercial and residential housing purposes; that these shortages are severe in certain urban areas of this state, are especially critical in rural areas of this state and are inimical to the present and future health, welfare and prosperity of all residents of this state and to the sound growth and development of communities in this state; and that unless promptly remedied these shortages will continue to seriously retard the sound economic growth and development of this state, the related property tax and excise tax bases of this state and the availability in this state of manpower resources essential to modern mining, industrial and commercial operations and development which are essential to the health, welfare and prosperity of this state and its residents.

(e) The Legislature hereby finds and declares further that private enterprise and investment have not been able to produce, or provide mortgage financing for, sufficient new sanitary, decent and safe residential housing at prices or rentals low enough to enable sufficient persons and families having incomes at or immediately above the higher level of the low and moderate income segment of the population of this state to occupy the same and thereby provide opportunities for persons and families of lesser income to occupy existing sanitary, decent and safe residential housing thereby vacated, have not been able to produce, or provide mortgage financing for, sufficient new residential housing essential to retain and attract qualified manpower resources in and to many areas of this state where such resources are, or shortly will be, critically needed for existing, expanding and new mining, industrial and commercial operations and development, have not been able to produce, or provide mortgage financing for, sufficient new residential housing, including, but not limited to, nursing homes and intermediate care facilities, of design and location suitable for occupancy by elderly and by disabled persons, have not been able to finance sufficient land development, including extensions or construction of water and nonpolluting sewer systems, other utility facilities and off-highway streets and roads, essential to utilization of undeveloped areas of this state for industrial, commercial and residential housing purposes, and have not been able to achieve urgently needed rehabilitation of much of the present housing stock of this state; that it is imperative that the supply of residential housing necessary to retain and attract qualified manpower resources in and to many areas of this state where such resources are, or shortly will be, critically needed for existing, expanding and new mining, industrial and commercial operations and developments be provided, that sufficient new residential housing, including, without limitation, nursing homes and intermediate care facilities, designed and located so as to be suitable for occupancy by elderly persons and by disabled persons be provided, that needed public housing for occupancy by persons and families at the lowest level of the low and moderate income segment of the population of this state be provided, that land development, including water and nonpolluting sewer systems and other utilities and off-highway streets and roads in this state necessary or desirable for new commercial, industrial and residential housing uses be provided, and that the existing political subdivisions of this state, and private enterprise and investment resources in this state, be encouraged to sponsor and finance land development, including water and nonpolluting sewer systems, other utilities and off-highway streets and roads, and to finance, construct and rehabilitate such residential housing; and that it is necessary that such efforts be supplemented by this state as in this article provided.

(f) The Legislature hereby finds and declares further that political subdivisions in West Virginia which are presently authorized and empowered by law to acquire, construct, operate and manage public housing projects have not been able to acquire and construct, even with available federal and state assistance, public housing projects sufficient to fulfill the needs for sanitary, decent and safe residential housing for occupancy by persons and families at the lowest level of the low and moderate income segment of the population of this state who have been entitled to occupy public housing in many smaller municipalities in West Virginia and especially in the rural areas of West Virginia; that the primary cause of such shortage of needed public housing projects is the inability of such political subdivisions to remedy such shortages because the number of units of public housing needed within its territorial jurisdiction is not sufficient to generate, and justify the expenditure of, adequate funds to provide the requisite arranging of financing for, and planning, development, acquisition, construction, operation and management of such public housing; and that the acquisition, construction, planning, development, financing and management of public housing projects in this state by a governmental instrumentality and public body corporate with statewide jurisdiction as authorized herein will permit or facilitate the arranging of financing for, and planning, development, acquisition, construction, operation or management of public housing units, even though such units are included in several projects each of which contains a relatively small number of such units, sufficient in the aggregate to generate, and justify the expenditure of, sufficient funds to provide the requisite arranging of financing for, and planning, development, acquisition, construction, operation and management of such public housing, thereby providing the means to alleviate the existing shortages of public housing in many municipalities in West Virginia and in the rural areas of West Virginia.

(g) The Legislature hereby finds and declares further that its intention by enacting this legislation is to provide for the continuation of the West Virginia housing development fund, the corporate purpose of which is to provide financing for development costs and land development to public and private sponsors of land development in this state; further to provide federally insured construction loans to public and private sponsors of land development or to public and private sponsors of residential housing for occupancy by eligible persons and families; further to provide uninsured construction loans to public and private sponsors of land development or to public and private sponsors of residential housing for occupancy by eligible persons and families or to eligible persons and families who may construct such housing; further to provide long term federally insured mortgage loans to public and private sponsors of residential housing for occupancy by eligible persons and families and to eligible persons and families who may purchase or construct such housing; further to provide long-term uninsured mortgage loans to public and private sponsors of residential housing for occupancy by eligible persons and families and to eligible persons and families who may purchase or construct such housing; further to provide technical, consultative and project assistance service to public and private sponsors of such land development or residential housing; further to increase the construction of residential housing for occupancy by eligible persons and families through participating in the making of, or the making of, loans to mortgagees approved by the housing development fund, and taking as collateral security therefor, or purchasing, or investing in long-term federal mortgages or federally insured mortgages, or uninsured mortgages, on residential housing constructed in this state, thereby increasing the supply of funds for long-term mortgage financing of residential housing for occupancy by eligible persons and families and freeing funds for use in short-term construction financing of residential housing for occupancy by eligible persons and families; further to plan, develop, finance, acquire, construct, mortgage or otherwise encumber, operate, manage, sell, lease or otherwise dispose of public housing projects; and finally to assist in coordinating federal, state, regional and local public and private efforts and resources to otherwise increase the supply of such residential housing.

(h) The Legislature hereby finds and declares further that in accomplishing this purpose, the West Virginia housing development fund, heretofore created and established by this article, is acting in all respects for the benefit of the people of the state of West Virginia to serve a public purpose in improving and otherwise promoting their health, welfare and prosperity, and that the West Virginia housing development fund, heretofore created and established, is empowered, hereby, to act on behalf of the state of West Virginia and its people in serving this public purpose for the benefit of the general public.

(i) The Legislature hereby finds and declares further that during a period of national growth this state has experienced a lack of employment and business opportunities, which have caused a reduction in the tax base of the state, diminishing the resources available to this state to provide for the health, safety and welfare of its citizens; that there has been and continues to be a need for economic development and improvement and capital investment in this state, including, but not limited to, the real estate and construction industries, both residential and nonresidential; that there exists in this state a shortage of the capital needed to finance general economic development through investment in enterprises which have the potential to create new employment opportunities in this state and that there also exists a shortage of construction and real estate development financing, underwriting and construction expertise, which shortage can be alleviated by utilizing the expertise of the housing development fund and its staff, which are hereby determined to be suited to facilitate, implement and undertake the general economic development and real estate construction and development projects, both residential and nonresidential, which are necessary to support the capital base and employment levels and remedy many of the underlying causes of the current economic difficulties existing in this state; that many other states have facilitated the development of capital and the growth of employment opportunities through state programs which provide combined technical and financial assistance for business and real estate development in such states; and the Legislature hereby finds and declares further in support of the foregoing that it shall be a corporate purpose of the housing development fund to provide assistance by loans, grants or otherwise for the costs, including development and direct and indirect costs, and financing for public and private sponsors of land development, residential housing and nonresidential projects in this state, and further to provide construction loans and mortgage loans (including privately insured and uninsured) to public and private sponsors of land development and residential housing and nonresidential projects in this state, to make grants and provide technical, consultative and project assistance services to public and private sponsors of land development and residential housing and nonresidential projects in this state, and to plan, develop, finance, acquire, construct, renovate, improve, mortgage or otherwise encumber, operate, manage, sell, lease or otherwise dispose of general economic development and land development projects and residential projects and nonresidential projects in this state.

(j) The Legislature hereby finds and declares further that the housing development fund and its staff have extensive expertise in real estate development financing, underwriting and construction activities, and further that there is a need on behalf of public and educational bodies to facilitate the construction of new facilities or renovation of existing facilities, which need can best be met by making available to such public agencies and bodies the real estate and construction development services and consultative expertise of the housing development fund at such cost and fees as the housing development fund would normally impose, subject to the provisions of this article relating to the powers of the housing development fund.


WVC 31 - 18 - 3 §31-18-3. Definitions.

As used in this article, unless the context otherwise requires:

(1) "Annual sinking fund payment" means the amount of money specified in the resolution or resolutions authorizing term bonds as payable into a sinking fund during a particular calendar year for the retirement of term bonds at maturity after such calendar year, but shall not include any amount payable by reason only of the maturity of a bond.

(2) "Development costs" means the costs approved by the housing development fund as appropriate expenditures by the housing development fund or by sponsors, for land development, residential housing, or nonresidential projects within this state, including, but not limited to:

(a) Payments for options to purchase proposed sites, necessary easements and other related property rights, deposits on contracts of purchase, or, with prior approval of the housing development fund, payments for the purchase of such properties;

(b) Legal and organizational expenses, including payments of attorneys' fees, utility and governmental application and filing fees and expenses, project manager and clerical staff salaries, office rent and other incidental expenses;

(c) Payment of fees and expenses for preliminary feasibility studies and costs estimates and advances for planning, engineering and architectural work;

(d) Expenses for tenant surveys and market analyses; and

(e) Necessary application, approval and other fees.

(3) "Eligible persons and families" means:

(a) Persons and families of low and moderate income; or

(b) Persons or families of higher income to the extent the housing development fund shall find and determine, by resolution, that construction of new or rehabilitated residential housing for occupancy by them will cause to be vacated existing sanitary, decent and safe residential housing available at prices or rentals which persons and families of low and moderate income can afford; or

(c) Persons or families of higher income to the extent the housing development fund shall find and determine, by resolution, that construction of new or rehabilitated multi-family rental housing or new, rehabilitated or existing home ownership housing in the state for occupancy by them will further economic growth, increase the housing stock in the state by eliminating substandard or deteriorating housing conditions, or provide additional housing opportunities in the state; or

(d) Persons who because of age or physical disability are found and determined by the housing development fund, by resolution, to require residential housing of a special location or design in order to provide them with sanitary, decent and safe residential housing; or

(e) Persons and families for whom, as found and determined by the housing development fund by resolution, construction of new or rehabilitated residential housing in some designated area or areas of the state is necessary for the purpose of retaining in, or attracting to, such area or areas qualified manpower resources essential to modern mining, industrial and commercial operations and development in such area or areas.

(4) "Federally insured construction loan" means a construction loan for land development, residential housing or nonresidential projects, which are either secured or guaranteed, in whole or in part, by a federally insured mortgage or a federal mortgage, or which are insured or guaranteed, in whole or in part, by the United States or an instrumentality thereof, or a commitment by the United States or an instrumentality thereof to insure such loan.

(5) "Federally insured mortgage" means a mortgage loan for land development, residential housing or nonresidential projects with a commitment by the United States or an instrumentality thereof to insure or guarantee such a mortgage.

(6) "Federal mortgage" means a mortgage loan for land development, residential housing or nonresidential projects made by the United States or an instrumentality thereof, or a commitment by the United States or an instrumentality thereof to make such a mortgage loan.

(7) "Housing development fund" means the West Virginia housing development fund heretofore created and established by section four of this article.

(8) "Land development" means the process of acquiring land for residential housing construction or nonresidential projects or of making, installing or constructing improvements, including waterlines and water supply installations, sewer lines and sewage disposal installations, steam, gas, telephone and telecommunications and electric lines and installations, roads, railroad spurs, docking and shipping facilities, streets, curbs, gutters, sidewalks, drainage and flood control facilities, whether on or off the site, which the housing development fund deems necessary or desirable to prepare such land for construction within this state.

(9) "Land development fund" means the land development fund which may be created and established by the housing development fund in accordance with section twenty-a of this article.

(10) "Minimum bond insurance requirement" means, as of any particular date of computation, an amount of money equal to the greatest of the respective amounts, for the then current or any future calendar year, of annual debt service of the housing development fund on all outstanding mortgage finance bonds, such annual debt service for any calendar year being the amount of money equal to the aggregate of (a) all interest payable during such calendar year on such mortgage finance bonds on said date of computation, plus (b) the principal amount of such mortgage finance bonds outstanding which matures during such calendar year, other than mortgage finance bonds for which annual sinking fund payments have been or are to be made in accordance with the resolution authorizing such bonds, plus (c) the amount of all annual sinking fund payments payable during such calendar year with respect to any such mortgage finance bonds, all calculated on the assumption that bonds will after said date of computation cease to be outstanding by reason, but only by reason, of the payment of bonds when due, and the payment when due and application in accordance with the resolution authorizing such bonds of all such sinking fund payments payable at or after said date of computation.

(11) "Mortgage finance bonds" means bonds issued or to be issued by the housing development fund and secured by a pledge of amounts payable from the mortgage finance bond insurance fund in the manner and to the extent provided in section twenty-b of this article.

(12) "Mortgage finance bond insurance fund" means the special trust fund created and established in the state treasury in accordance with section twenty-b of this article.

(13) "Nonresidential project" means a project in the state, whether or not directly related to the providing of residential housing, determined by the housing development fund as likely to foster and enhance economic growth and development in the area of the state in which such project is developed, for retail, commercial, industrial, community improvement or preservation or other proper purpose, including tourism and recreational housing, land, air or water transportation facilities, facilities for vocational or other training or to provide medical care and other special needs of persons residing in the state, sports complexes and cultural, artistic and other exhibition centers, industrial or commercial projects and facilities, mail order, wholesale and retail sales facilities and other real or personal properties including facilities which are owned or leased by this state, any county or municipality or other public body within the state, and includes, without limitation, the process of acquiring, holding, operating, planning, financing, demolition, construction, renovation, leasing or otherwise disposing of such project or any part thereof or interest therein. Any such project may include appurtenant machinery and equipment.

(14) "Operating loan fund" means the operating loan fund which may be created and established by the housing development fund in accordance with section nineteen of this article.

(15) "Persons and families of low and moderate income" means persons and families, irrespective of race, creed, national origin or sex, determined by the housing development fund to require such assistance as is made available by this article on account of personal or family income not sufficient to afford sanitary, decent and safe housing, and to be eligible or potentially eligible to occupy residential housing constructed and financed, wholly or in part, with federally insured construction loans, federally insured mortgages, federal mortgages or with other public or private assistance, or with uninsured construction loans, or uninsured mortgage loans, and in making such determination the fund shall take into account the following: (a) The amount of the total income of such persons and families available for housing needs, (b) the size of the family, (c) the cost and condition of housing facilities available, (d) the eligibility of such persons and families for federal housing assistance of any type predicated upon low or moderate income basis, and (e) the ability of such persons and families to compete successfully in the normal housing market and to pay the amounts at which private enterprise is providing sanitary, decent and safe housing: Provided, That to the extent found and determined by the housing development fund, by resolution, to be necessary or appropriate for the purposes of eliminating undesirable social conditions and permanently eliminating slum conditions, the income limitation requirements of this article may be waived as to any persons or families who are eligible to occupy residential housing constructed in whole, or in part, with federally insured construction loans, federally insured mortgages or federal mortgages under housing assistance or mortgage insurance programs of the United States, or an instrumentality thereof, predicated upon any low or moderate income basis.

(16) "Residential housing" means a specific work or improvement within this state undertaken primarily to provide dwelling accommodations, including the acquisition, construction or rehabilitation of land, buildings and improvements thereto, for residential housing for occupancy by eligible persons and families, including, but not limited to, facilities for temporary housing and emergency housing, nursing homes and intermediate care facilities, and such other nonhousing facilities as may be incidental or appurtenant thereto.

(17) "Special bond insurance commitment fee" means a fee in the amount of one per centum of the total principal amount of each loan which is to be temporarily or permanently financed from the proceeds of mortgage finance bonds, other than a federally insured construction loan, a federally insured mortgage or a federal mortgage, or an amount equal to an equivalent discount on each loan purchased or invested in by the housing development fund from the proceeds of mortgage finance bonds, other than a federally insured construction loan, a federally insured mortgage or a federal mortgage, and which may be payable from the proceeds of such bonds or any other source available to the housing development fund for such use: Provided, That if the period of time between the first disbursement of proceeds of such loan and the date upon which it is specified that the first repayment of principal of such a loan shall be payable exceeds twelve months, an additional amount computed on the basis of one twelfth of one per centum per month on the total principal amount of such loan over the number of months of such period of time in excess of twelve months shall be included in such fee.

(18) "Special bond insurance premium" means (i) a fee at the rate of one half of one percent per annum on the outstanding principal balance which the housing development fund shall charge the borrower of a mortgage loan, or of a loan secured by a mortgage, financed from the proceeds of mortgage finance bonds, other than a federally insured construction loan, a federally insured mortgage or a federal mortgage, which shall accrue from a date which is one month prior to the date on which the first installment payment of principal of such a loan is payable and which shall be payable thereafter in monthly installments on the same day of each successive month that installment payments of principal of such a loan are payable, and (ii) with respect to any loan, other than a federally insured construction loan, a federally insured mortgage or a federal mortgage, purchased, or invested in with such proceeds, an equivalent amount which the housing development fund shall set aside from payments it receives on such loan or from any other source available to the housing development fund for such use.

(19) "State sinking fund commission" means the commission known as such and continued in existence pursuant to article three, chapter thirteen of this code and any body, board, person or commission which shall, by law, hereafter succeed to the powers and duties of such commission.

(20) "Temporary housing" means a specific work or improvement within this state undertaken primarily to provide dwelling accommodations, including the acquisition, construction or rehabilitation of land, buildings and improvements thereto, for temporary residential housing, including, but not limited to, shelters for homeless people, housing for victims of floods and other disasters, shelters for abused or battered persons and their children, housing for families with hospitalized family members, housing for students and student families, and housing for the handicapped and such other nonhousing facilities as may be incidental or appurtenant thereto.

(21) "Uninsured construction loans" means a construction loan for land development, residential housing or nonresidential projects which is not secured by either a federally insured mortgage or a federal mortgage, and which is not insured by the United States or an instrumentality thereof, and as to which there is no commitment by the United States or an instrumentality thereof to provide insurance.

(22) "Uninsured mortgage" and "uninsured mortgage loan" means mortgage loans for land development, residential housing or nonresidential projects which are not insured or guaranteed by the United States or an instrumentality thereof, and as to which there is no commitment by the United States or an instrumentality thereof to provide insurance.


WVC 31 - 18 - 4 §31-18-4. Composition; board of directors; appointment, term, etc., of private members; chairman and vice chairman; quorum.
(a) There is continued as a governmental instrumentality of the State of West Virginia, a public body corporate to be known as the West Virginia Housing Development Fund.

(b) The Housing Development Fund is created and established to serve a public corporate purpose and to act for the public benefit and as a governmental instrumentality of the state of West Virginia, to act on behalf of the state and its people in improving and otherwise promoting their health, welfare and prosperity.

(c) The Housing Development Fund shall be governed by a board of directors, consisting of eleven members, four of whom shall be the Governor, the Attorney General, the Commissioner of Agriculture, and the State Treasurer, or their designated representatives as public directors, and seven of whom shall be chosen from the general public residing in the state, as private directors. No more than four of the private directors shall be from the same political party.

(d) Upon organization of the Housing Development Fund, the Governor shall appoint, by and with the advice and consent of the Senate, the seven private directors to take office and to exercise all powers thereof immediately, with two each appointed for terms of two years and three years, and with three each appointed for terms of four years, respectively, as the Governor shall designate; at the expiration of said terms and for all succeeding terms, the Governor shall appoint a successor to the office of private director for a term of four years in each case.

(e) A vacancy in the office of a private director is filled by appointment by the Governor for the remainder of the unexpired term.

(f) The Governor may remove any private director for reason of incompetency, neglect of duty, gross immorality, or malfeasance in office and appoint a director to fill the vacancy as provided in other cases of vacancy.

(g) The Governor or designee serves as chair. The board of directors shall annually elect one of its public members as vice chair and appoint a secretary to keep records of its proceedings, who need not be a member of the board.

(h) Six members of the board of directors constitutes a quorum. A vacancy in the membership of the board does not impair the duties of the board of directors.

(i) Action may not be taken by the board of directors except upon the affirmative vote of at least six of the directors.

(j) The directors, including the chair, vice chair and treasurer, and the secretary of the board are not compensated for their services but receive reasonable and necessary expenses actually incurred in discharging their duties under this article in a manner consistent with guidelines of the travel management office of the Department of Administration.


WVC 31 - 18 - 5 §31-18-5. Management and control of Housing Development Fund vested in board; officers; liability.
(a) The management and control of the Housing Development Fund shall be vested solely in the board of directors in accordance with the provisions of this article.

(b) The chairman shall be the chief executive officer of the Housing Development Fund, and, in his or her absence, the vice chairman shall act as chief executive officer.

(c) The Governor appoints an executive director of the housing development fund, with the advice and consent of the Senate, who serves at the Governor's will and pleasure. The director is responsible for managing and administering the daily functions of the Housing Development Fund and for performing other functions necessary to the effective operation of the housing development fund. The executive director's compensation is fixed annually by the board of directors.

(d) The board of directors of the Housing Development Fund shall annually elect from its membership a treasurer and shall annually elect a secretary, who need not be a member of the board, to keep a record of the proceedings of the Housing Development Fund.

(e) The treasurer of the Housing Development Fund shall be custodian of all funds of the Housing Development Fund and shall be bonded in such amount as the other members of the board of directors may designate.

(f) The directors and officers of the West Virginia Housing Development Fund shall not be liable personally, either jointly or severally, for any debt or obligation created by the West Virginia Housing Development Fund.


WVC 31 - 18 - 6 §31-18-6. Corporate powers.
The housing development fund is hereby granted, has and may exercise all powers necessary or appropriate to carry out and effectuate its corporate purpose, including, but not limited to, the following:

(1) To make or participate in the making of federally insured construction loans to sponsors of land development, residential housing or nonresidential projects. Such loans shall be made only upon determination by the housing development fund that construction loans are not otherwise available, wholly or in part, from private lenders upon reasonably equivalent terms and conditions;

(2) To make temporary loans, with or without interest, but with such security for repayment as the housing development fund determines reasonably necessary and practicable, from the operating loan fund, if created, established, organized and operated in accordance with the provisions of section nineteen of this article, to defray development costs to sponsors of land development, residential housing or nonresidential projects which are eligible or potentially eligible for federally insured construction loans, federally insured mortgages, federal mortgages or uninsured construction loans or uninsured mortgage loans;

(3) To make or participate in the making of long-term federally insured mortgage loans to sponsors of land development, residential housing or nonresidential projects. Such loans shall be made only upon determination by the housing development fund that long-term mortgage loans are not otherwise available, wholly or in part, from private lenders upon reasonably equivalent terms and conditions;

(4) To establish residential housing and nonresidential and land development projects for counties declared to be in a disaster area by the Federal Emergency Management Agency or other agency or instrumentality of the United States or this state;

(5) To accept appropriations, gifts, grants, bequests and devises and to utilize or dispose of the same to carry out its corporate purpose;

(6) To make and execute contracts, releases, compromises, compositions and other instruments necessary or convenient for the exercise of its powers, or to carry out its corporate purpose;

(7) To collect reasonable fees and charges in connection with making and servicing loans, notes, bonds, obligations, commitments and other evidences of indebtedness, and in connection with providing technical, consultative and project assistance services;

(8) To invest any funds not required for immediate disbursement in any of the following securities:

(i) Direct obligations of or obligations guaranteed by the United States of America or for the payment of the principal and interest on which the full faith and credit of the United States of America is pledged;

(ii) Bonds, debentures, notes or other evidences of indebtedness issued by any of the following agencies: Banks for cooperatives; federal intermediate credit banks; federal home loan bank system; export-import bank of the United States; federal land banks; Tennessee valley authority; United States postal service; inter-American development bank; international bank for reconstruction and development; small business administration; Washington metropolitan area transit authority; general services administration; federal financing bank; federal home loan mortgage corporation; student loan marketing association; farmer's home administration; the federal national mortgage association or the government national mortgage association; or any bond, debenture, note, participation certificate or other similar obligation to the extent such obligations are guaranteed by the government national mortgage association or federal national mortgage association or are issued by any other federal agency and backed by the full faith and credit of the United States of America;

(iii) Public housing bonds issued by public agencies or municipalities and fully secured as to the payment of both principal and interest by a pledge of annual contributions under an annual contributions contract or contracts with the United States of America; or temporary notes, preliminary loan notes, or project notes issued by public agencies or municipalities, in each case, fully secured as to the payment of both principal and interest by a requisition or payment agreement with the United States of America;

(iv) Certificates of deposit, time deposits, investment agreements, repurchase agreements or similar banking arrangements with a member bank or banks of the federal reserve system or a bank the deposits of which are insured by the federal deposit insurance corporation, or its successor, or a savings and loan association or savings bank the deposits of which are insured by the federal savings and loan insurance corporation, or its successor, or government bond dealers reporting to, trading with and recognized as primary dealers by a federal reserve bank: Provided, That such investments shall only be made to the extent insured by the federal deposit insurance corporation or the federal savings and loan insurance corporation or to the extent that the principal amount thereof shall be fully collateralized by obligations which are authorized investments for the housing development fund pursuant to this section;

(v) Direct obligations of or obligations guaranteed by the state of West Virginia;

(vi) Direct and general obligations of any other state, municipality or other political subdivision within the territorial United States: Provided, That at the time of their purchase, such obligations are rated in either of the two highest rating categories by a nationally recognized bond-rating agency;

(vii) Any bond, note, debenture or annuity issued by any corporation organized and operating within the United States: Provided, That such corporation shall have a minimum net worth of $15 million and its securities or its parent corporation's securities are listed on one or more of the national stock exchanges: Provided, however, That: (1) Such corporation has earned a profit in eight of the preceding ten fiscal years as reflected in its statements; and (2) such corporation has not defaulted in the payment of principal or interest on any of its outstanding funded indebtedness during its preceding ten fiscal years; and (3) the bonds, notes or debentures of such corporation to be purchased are rated "AA" or the equivalent thereof or better than "AA" or the equivalent thereof by at least two or more nationally recognized rating services such as Standard and Poor's, Dunn & Bradstreet, Best's or Moody's;

(viii) If entered into solely for the purpose of reducing investment, interest rate, liquidity or other market risks in relation to obligations issued or to be issued or owned or to be owned by the housing development fund, options, futures contracts (including index futures but exclusive of commodities futures, options or other contracts), standby purchase agreements or similar hedging arrangements listed by a nationally recognized securities exchange or a corporation described in paragraph (vii) above;

(ix) Certificates, shares or other interests in mutual funds, unit trusts or other entities registered under section eight of the United States Investment Company Act of 1940, but only to the extent that the terms on which the underlying investments are to be made prevent any more than a minor portion of the pool which is being invested in to consist of obligations other than investments permitted pursuant to this section; and

(x) To the extent not inconsistent with the express provisions of this section, obligations of the West Virginia state board of investments or any other obligation authorized as an investment for the West Virginia state board of investments under article six, chapter twelve of this code or for a public housing authority under article fifteen, chapter sixteen of this code;

(9) To sue and be sued;

(10) To have a seal and alter the same at will;

(11) To make, and from time to time, amend and repeal bylaws and rules and regulations not inconsistent with the provisions of this article;

(12) To appoint such officers, employees and consultants as it deems advisable and to fix their compensation and prescribe their duties;

(13) To acquire, hold and dispose of real and personal property for its corporate purposes;

(14) To enter into agreements or other transactions with any federal or state agency, any person and any domestic or foreign partnership, corporation, association or organization;

(15) To acquire real property, or an interest therein, in its own name, by purchase or foreclosure, where such acquisition is necessary or appropriate to protect any loan in which the housing development fund has an interest and to sell, transfer and convey any such property to a buyer and, in the event of such sale, transfer or conveyance cannot be effected with reasonable promptness or at a reasonable price, to lease such property to a tenant;

(16) To purchase or sell, at public or private sale, any mortgage or other negotiable instrument or obligation securing a construction, rehabilitation, improvement, land development, mortgage or temporary loan;

(17) To procure insurance against any loss in connection with its property in such amounts, and from such insurers, as may be necessary or desirable;

(18) To consent, whenever it deems it necessary or desirable in the fulfillment of its corporate purpose, to the modification of the rate of interest, time of payment or any installment of principal or interest, or any other terms, of mortgage loan, mortgage loan commitment, construction loan, rehabilitation loan, improvement loan, temporary loan, contract or agreement of any kind to which the housing development fund is a party;

(19) To make and publish rules and regulations respecting its federally insured mortgage lending, uninsured mortgage lending, construction lending, rehabilitation lending, improvement lending and lending to defray development costs and any such other rules and regulations as are necessary to effectuate its corporate purpose;

(20) To borrow money to carry out and effectuate its corporate purpose and to issue its bonds or notes as evidence of any such borrowing in such principal amounts and upon such terms as shall be necessary to provide sufficient funds for achieving its corporate purpose, except that no notes shall be issued to mature more than ten years from date of issuance and no bonds shall be issued to mature more than fifty years from date of issuance;

(21) To issue renewal notes, to issue bonds to pay notes and, whenever it deems refunding expedient, to refund any bonds by the issuance of new bonds, whether the bonds to be refunded have or have not matured except that no such renewal notes shall be issued to mature more than ten years from date of issuance of the notes renewed and no such refunding bonds shall be issued to mature more than fifty years from the date of issuance;

(22) To apply the proceeds from the sale of renewal notes or refunding bonds to the purchase, redemption or payment of the notes or bonds to be refunded;

(23) To make grants and provide technical services to assist in the purchase or other acquisition, planning, processing, design, construction, or rehabilitation, improvement or operation of residential housing, nonresidential projects or land development: Provided, That no such grant or other financial assistance shall be provided except upon a finding by the housing development fund that such assistance and the manner in which it will be provided will preserve and promote residential housing in this state or the interests of this state in maintaining or increasing employment or the tax base;

(24) To provide project assistance services for residential housing, nonresidential projects and land development, including, but not limited to, management, training and social and other services;

(25) To promote research and development in scientific methods of constructing low cost land development, residential housing or nonresidential projects of high durability including grants, loans or equity contributions for research and development purposes: Provided, That no such grant or other financial assistance shall be provided except upon a finding by the housing development fund that such assistance and the manner in which it will be provided will preserve and promote residential housing in this state or the interests of this state in maintaining and increasing employment and the tax base;

(26) With the proceeds from the issuance of notes or bonds of the housing development fund, including, but not limited to, mortgage finance bonds, or with other funds available to the housing development fund for such purpose, to participate in the making of or to make loans to mortgagees approved by the housing development fund and take such collateral security therefor as is approved by the housing development fund and to invest in, purchase, acquire, sell or participate in the sale of, or take assignments of, notes and mortgages, evidencing loans for the construction, rehabilitation, improvement, purchase or refinancing of land development, residential housing or nonresidential projects in this state: Provided, That the housing development fund shall obtain such written assurances as shall be satisfactory to it that the proceeds of such loans, investments or purchases will be used, as nearly as practicable, for the making of or investment in long- term federally insured mortgage loans or federally insured construction loans, uninsured mortgage loans or uninsured construction loans, for land development, residential housing or nonresidential projects or that other moneys in an amount approximately equal to such proceeds shall be committed and used for such purpose;

(27) To make or participate in the making of uninsured construction loans for land development, residential housing or nonresidential projects. Such loans shall be made only upon determination by the housing development fund that construction loans are not otherwise available, wholly or in part, from private lenders upon reasonably equivalent terms and conditions;

(28) To make or participate in the making of long-term uninsured mortgage loans for land development, residential housing or nonresidential projects. Such loans shall be made only upon determination by the housing development fund that long-term mortgage loans are not otherwise available, wholly or in part, from private lenders upon reasonably equivalent terms and conditions;

(29) To obtain options to acquire real property, or any interest therein, in its own name, by purchase, or lease or otherwise, which is found by the housing development fund to be suitable, or potentially suitable, as a site, or as part of a site, for land development or the construction of residential housing or nonresidential projects; to hold such real property or to acquire by purchase or otherwise and to transfer by sale or otherwise any ownership or equity interests in any other legal entity which holds such real property; to finance the performance of land development, residential housing or nonresidential projects on or in connection with any such real property or to perform land development, residential housing or nonresidential projects on or in connection with any such real property; to own, operate and sponsor or participate in the sponsorship of land development, residential housing or nonresidential projects; or to sell, transfer and convey, lease or otherwise dispose of such real property, or lots, tracts or parcels of such real property, for such prices, upon such terms, conditions and limitations, and at such time or times as the housing development fund shall determine;

(30) To make loans, with or without interest, but with such security for repayment as the housing development fund determines reasonably necessary and practicable from the land development fund, if created, established, organized and operated in accordance with the provisions of section twenty-a of this article, to sponsors of land development, to defray development costs and other costs of land development;

(31) To exercise all of the rights, powers and authorities of a public housing authority as set forth and provided in article fifteen, chapter sixteen of this code, in any area or areas of the state which the housing development fund shall determine by resolution to be necessary or appropriate;

(32) To provide assistance to urban renewal projects in accordance with the provisions of section twenty-eight, article eighteen, chapter sixteen of this code and in so doing to exercise all of the rights, powers and authorities granted in this article or in said article, in and for any communities of the state which the housing development fund shall determine by resolution to be necessary or appropriate;

(33) To make or participate in the making of loans for the purpose of rehabilitating or improving existing residential and temporary housing or nonresidential projects, or to owners of existing residential or temporary housing for occupancy by eligible persons and families for the purpose of rehabilitating or improving such residential or temporary housing or nonresidential projects and, in connection therewith, to refinance existing loans involving the same property. Such loans shall be made only upon determination by the housing development fund that rehabilitation or improvement loans are not otherwise available, wholly or in part, from private lenders upon reasonably equivalent terms and conditions;

(34) Whenever the housing development fund deems it necessary in order to exercise any of its powers set forth in subdivision (29) of this section, and upon being unable to agree with the owner or owners of real property or interest therein sought to be acquired by the fund upon a price for acquisition of private property not being used or operated by the owner in the production of agricultural products, to exercise the powers of eminent domain in the acquisition of such real property or interest therein in the manner provided under chapter fifty-four of this code, and the purposes set forth in said subdivision are hereby declared to be public purposes for which private property may be taken. For the purposes of this section, the determination of "use or operation by the owner in the production of agricultural products" means that the principal use of such real estate is for the production of food and fiber by agricultural production other than forestry, and the fund shall not initiate or exercise any powers of eminent domain without first receiving an opinion in writing from both the governor and the commissioner of agriculture of this state that at the time the fund had first attempted to acquire such real estate or interest therein, such real estate or interest therein was not in fact being used or operated by the owner in the production of agricultural products;

(35) To acquire, by purchase or otherwise, and to hold, transfer, sell, assign, pool or syndicate, or participate in the syndication of, any loans, notes, mortgages, securities or debt instruments collateralized by mortgages or interests in mortgages or other instruments evidencing loans or equity interests in or for the construction, rehabilitation, improvement, renovation, purchase or refinancing of land development, residential housing and nonresidential projects in this state; and

(36) To form one or more nonprofit corporations, whose board of directors shall be the same as the board of directors of the housing development fund, which shall be authorized and empowered to carry out any or all of the corporate powers or purposes of the housing development fund, including, without limitation, acquiring limited or general partnership interests and other forms of equity ownership.

(37) To receive and compile data into an electronic database and make available the raw mortgage foreclosure data that is required to be reported to county clerks by trustees pursuant to the provisions of section eight-a, article one, chapter thirty-eight of this code, including all data that has been received by the banking commissioner pursuant to subsection (a) of section four-c, article two, chapter thirty-one-a of this code, as of the effective date of the effective date of the amendments made to said section during the regular session of the 2010 legislature. This information shall be periodically forwarded by county clerks to the housing development fund, in accordance with the provisions of section four-a, article thirteen, chapter forty-four of this code.


WVC 31 - 18 - 6 A §31-18-6a. Certain loans exempt from laws limiting interest rates or providing forfeitures, etc.

Notwithstanding any other provision to the contrary, no law limiting interest rates or providing for forfeiture, penalty or other loss or liability because of rate of interest charged shall apply to any loan in a principal amount of more than one hundred thousand dollars on loans made by the housing development fund in the furtherance of its corporate purposes or to any addition to or refinancing of a loan in the original principal amount of more than one hundred thousand dollars, made by the housing development fund for such purposes.


WVC 31 - 18 - 7 §31-18-7. Notes or bonds as general obligations of housing development fund.
Except as may otherwise be provided by the housing development fund, every issue of its notes or bonds shall be general obligations of the housing development fund payable out of any revenues or moneys of the housing development fund, subject only to any agreements with the holders of particular notes or bonds pledging any particular receipts or revenues.


WVC 31 - 18 - 8 §31-18-8. Notes and bonds as negotiable instruments.
The notes and bonds shall be and hereby are made negotiable instruments under the provisions of article eight, chapter forty-six of this code, subject only to the provisions of the notes or bonds for registration, unless otherwise provided by resolution of the housing development fund.


WVC 31 - 18 - 9 §31-18-9. Borrowing of money.
The borrowing of money and the notes and bonds evidencing any such borrowing shall be authorized by resolution approved by the board of directors of the housing development fund, shall bear such date or dates, and shall mature at such time or times, in the case of any such note or any renewal thereof, not exceeding ten years from the date of issue of such original note, and, in the case of any such bond, not exceeding fifty years from the date of issue, as such resolution or resolutions may provide. The notes and bonds shall bear interest at such rate or rates, be in such denominations, be in such form, either coupon or registered, carry such registration privileges, be executed in such manner, be payable in such medium of payment, at such place or places, and be subject to such terms or conditions of redemption as such resolution or resolutions may provide.


WVC 31 - 18 - 10 §31-18-10. Sale of notes or bonds.
Any notes or bonds issued by the West Virginia housing development fund may be sold in such manner, either at public or private sale, and for such price, upon such terms and at such interest rates per annum, as the fund shall determine to be for the best interests of the fund and to be necessary to effectuate the purposes of this article.


WVC 31 - 18 - 11 §31-18-11. Authorizing resolutions.
Any resolution or resolutions authorizing any notes or bonds, or any issue thereof, may contain provisions, which shall be a part of the contract with the holders thereof, as to:

(1) Pledging all or part of the mortgage or deed of trust payments, charges and other fees made or received by the housing development fund and other moneys received or to be received to secure the payment of the notes or bonds or of any issue thereof, subject to such agreements with bondholders or noteholders as may then exist;

(2) Pledging all or any part of the assets of the housing development fund to secure the payment of the notes or bonds or any issue of notes or bonds, subject to such agreements with bondholders or noteholders as may then exist;

(3) Pledging as security, or as part of the security, for the payment of any mortgage finance bonds, including, but not limited to mortgage finance bonds issued to pay outstanding notes, amounts payable from the mortgage finance bond insurance fund;

(4) The setting aside of reserves or sinking funds and the regulation and disposition thereof;

(5) Limitations on the purpose to which the proceeds of sale of notes or bonds may be applied and pledging such proceeds to secure the payments of the notes or bonds or of any issue thereof;

(6) Limitations on the issuance of additional notes or bonds; the terms upon which additional notes or bonds may be issued and secured; and the refunding of outstanding or other notes or bonds;

(7) The procedure, if any, by which the terms of any contract with noteholders or bondholders may be amended or abrogated, the amount of notes or bonds the holders of which must consent thereto, and the manner in which such consent may be given;

(8) Limitations on the amount of moneys to be expended by the housing development fund for operating, administrative or other expenses of the housing development fund;

(9) Vesting in a trustee or trustees such property, rights, powers and duties of any trustee appointed by the bondholders pursuant to section sixteen of this article, and limiting or abrogating the right of the bondholders to appoint a trustee under section sixteen of this article or limiting the rights, powers and duties of such trustee; and

(10) Any other matters, of like or different character, which in any way affect the security or protection of the notes or bonds.


WVC 31 - 18 - 12 §31-18-12. Validity of any pledge, mortgage, deed of trust or security instrument.
It is the intention hereof that any pledge, mortgage, deed of trust or security instrument made by or for the benefit of the housing development fund, including, but not limited to amounts in the mortgage finance bond insurance fund, shall be valid and binding between the parties from the time the pledge, mortgage, deed of trust or security instrument is made; and that the moneys or property so pledged, encumbered, mortgaged or entrusted shall immediately be subject to the lien of such pledge, mortgage, deed of trust or security instrument without any physical delivery thereof or further act. The lien of such pledge shall be valid and binding against all parties having claims of any kind in tort, contract, or otherwise, irrespective of whether such parties have notice of the lien of such pledge. Nothing herein shall be construed to prohibit the housing development fund from selling any property subject to any such pledge, mortgage, deed of trust or security instrument. Such property is not to be sold for less than its fair market value.


WVC 31 - 18 - 13 §31-18-13. Redemption of notes or bonds.
The housing development fund, subject to such agreements with noteholders or bondholders as may then exist, shall have power, out of any funds available therefor, to purchase notes or bonds of the housing development fund.

If the notes or bonds are then redeemable, the price of such purchase shall not exceed the redemption price then applicable plus accrued interest to the next interest payment date thereon. If the notes or bonds are not then redeemable, the price of such purchase shall not exceed the redemption price applicable on the first date after such purchase upon which the notes or bonds become subject to redemption plus accrued interest to such date. Upon such purchase such notes or bonds shall be canceled.


WVC 31 - 18 - 14 §31-18-14. Disclaimer of any liability of state of West Virginia.
The state of West Virginia shall not be liable on notes, bonds or other evidences of indebtedness of the housing development fund and such notes, bonds or other evidences of indebtedness shall not be a debt of the state of West Virginia, and such notes, bonds or other evidences of indebtedness shall contain on the face thereof a statement to such effect.


WVC 31 - 18 - 15 §31-18-15. Limitation of rights vested in housing development fund by state.
The state of West Virginia does hereby pledge to and agree with the holders of any notes or bonds issued under this article, that the state will not limit or alter the rights hereby vested in the housing development fund to fulfill the terms of any agreements made with the holders thereof, or in any way impair the rights and remedies of such holders until such notes or bonds, together with the interest thereon, with interest on any unpaid installments of interest, and all costs and expenses for which the housing development fund is liable in connection with any action or proceeding by or on behalf of such holders, are fully met and discharged. The housing development fund is hereby authorized to include this pledge and agreement of the state in any agreement with the holders of such notes and bonds.


WVC 31 - 18 - 16 §31-18-16. Default in payment of principal or interest.
(a) In the event the housing development fund shall default in the payment of principal of or interest on any issue of notes or bonds after the same shall become due, whether at maturity or upon call for redemption, and such default shall continue for a period of thirty days, or in the event the housing development fund shall fail or refuse to comply with the provisions of this article or shall default in any agreement made with the holders of any issue of notes or bonds, the holders of twenty-five per centum in aggregate principal amount of the notes or bonds of such issue then outstanding, by instrument or instruments filed in the office of the clerk of the county court of any county in which the housing development fund operates and has an office and acknowledged in the same manner as a deed to be recorded, may appoint a trustee to represent the holders of such notes or bonds for the purposes herein provided.

(b) Any such trustee upon the written request of the holders of twenty-five per centum in principal amount of such notes or bonds then outstanding shall, in his or its own name, do any one or more of the following:

(1) By civil action or other proceeding, enforce all rights of the noteholders or bondholders, including the right to require the housing development fund to perform its duties under this article;

(2) Bring a civil action upon such notes or bonds;

(3) By civil action or other proceeding, require the housing development fund to account as if it were the trustee of an express trust for the holders of such notes or bonds;

(4) By civil action or other proceeding, enjoin any acts or things which may be unlawful or in violation of the rights of the holders of such notes or bonds;

(5) Declare all such notes or bonds due and payable, and if all defaults shall be made good, then, with the consent of the holders of twenty-five per centum of the principal amount of such notes or bonds then outstanding, annul such declaration and its consequences.

(c) In addition to the foregoing, such trustee shall have and possess all of the powers necessary or appropriate for the exercise of any functions specifically set forth herein or incident to the general representation of bondholders or noteholders in the enforcement and protection of their rights.

(d) Before declaring the principal of any notes or bonds due and payable, the trustee shall first give thirty days' notice in writing to the housing development fund.


WVC 31 - 18 - 17 §31-18-17. Investment in notes and bonds.
The notes and bonds of the housing development fund are hereby made securities in which all insurance companies and associations, and other persons carrying on an insurance business, all banks, bankers, trust companies, building and loan associations, savings and loan associations, investment companies and other persons carrying on a banking business, and other persons, except administrators, guardians, executors, trustees and fiduciaries, who are now or who may hereafter be authorized to invest in bonds or other obligations of the state, may properly and legally invest funds including capital in their control or belonging to them.


WVC 31 - 18 - 18 §31-18-18. Tax exemption.
The housing development fund shall not be required to pay any taxes and assessments to the state of West Virginia, or any county, municipality or other governmental subdivision of the state of West Virginia, upon any of its property or upon its obligations or other evidences of indebtedness pursuant to the provisions of this article, or upon any moneys, funds, revenues or other income held or received by the housing development fund. The notes and bonds of the housing development fund and the income therefrom shall at all times be exempt from taxation, except for death and gift taxes, taxes on transfers, sales taxes, real property taxes and business and occupation taxes.


WVC 31 - 18 - 19 §31-18-19. Operating loan fund.
(a) The board of directors of the housing development fund may create and establish a special revolving loan fund of moneys made available by contribution or loan, to be known as the operating loan fund and to be governed, administered and accounted for by the directors, officers and managerial staff of the housing development fund as a public purpose trust account separate and distinct from any other moneys, fund or funds owned and managed by the housing development fund.

(b) The purpose for organizing and operating the operating loan fund shall be to provide a source from which the housing development fund may make temporary loans, with or without interest, but with such security for repayment as the housing development fund deems reasonably necessary and practicable; such loans to be used to defray development costs to sponsors of land development for residential housing construction for occupancy by persons and families of low and moderate income or residential housing construction for occupancy by persons and families of low and moderate income which is eligible or potentially eligible for federally insured construction loans, federally insured mortgages or federal mortgages or other public assistance programs or uninsured construction loans or uninsured mortgage loans.

(c) No temporary loans shall be made by the housing development fund from the operating loan fund except in accordance with a written loan agreement which shall include, but not be limited to, the following terms and conditions:

(1) The proceeds of all such loans shall be used only to defray the development costs of such proposed residential housing;

(2) All such loans shall be repaid in full, with or without interest as provided in the agreement;

(3) All repayments shall be made concurrent with receipt by the borrower of the proceeds of a construction loan or mortgage, as the case may be, or at such other times as the housing development fund deems reasonably necessary or practicable; and

(4) Specification of such security for repayments upon such terms and conditions as the housing development fund deems reasonably necessary or practicable to ensure all repayments.

(d) No funds from the operating loan fund shall be used to carry on propaganda, or otherwise attempt to influence legislation.


WVC 31 - 18 - 20 §31-18-20. Authorized limit on borrowing.
The aggregate principal amount of bonds and notes issued by the housing development fund shall not exceed one billion, two hundred fifty million dollars outstanding at any one time: Provided, That in computing the total amount of bonds and notes which may at any one time be outstanding, the principal amount of any outstanding bonds or notes refunded or to be refunded either by application of the proceeds of the sale of any refunding bonds or notes of the housing development fund or by exchange for any such refunding bonds or notes, shall be excluded.


WVC 31 - 18 - 20 A §31-18-20a. Land development fund.

(a) The board of directors of the housing development fund may create and establish a special revolving fund of moneys made available by appropriation, grant, contribution or loan, to be known as the land development fund and to be governed, administered and accounted for by the directors, officers and managerial staff of the housing development fund as a special purpose account separate and distinct from any other moneys, fund or funds owned and managed by the housing development fund.

(b) The purpose of the land development fund is to provide a source from which the housing development fund may finance development costs and land development in this state by making loans or grants therefrom, such loans to be with or without interest and with such security for repayment as the housing development fund deems reasonably necessary and practicable, or by expending moneys therefrom, for development costs and land development in this state.

(c) The housing development fund may invest and reinvest all moneys in the land development fund in any investments authorized under section six of this article, pending the disbursement thereof in connection with the financing of development costs and land development in this state.

(d) No loans shall be made by the housing development fund from the land development fund except in accordance with a written loan agreement which shall include, but not be limited to, the following terms and conditions:

(1) The proceeds of all such loans shall be used only for development costs and land development;

(2) All such loans shall be repaid in full, with or without interest, as provided in the agreement;

(3) All repayments shall be made concurrent with receipt by the borrower of the proceeds of a construction loan or mortgage, as the case may be, or at such other times as the housing development fund deems reasonably necessary or practicable; and

(4) Specification of such security for repayments upon such terms and conditions as the housing development fund deems reasonably necessary or practicable.

(e) No grants shall be made by the housing development fund from the land development fund except in accordance with a written grant agreement which shall require that the proceeds of all such grants shall be used only for development costs or land development and containing such other terms and provisions as the housing development fund may require to ensure that the public purposes of this article are furthered by such grant.

(f) The housing development fund may expend any income from the financing of development costs and land development with moneys in the land development fund, and from investment of such moneys, in payment, or reimbursement, of all expenses of the housing development fund which, as determined in accordance with procedures approved by the board of directors of the housing development fund, are fairly allocable to such financing or its land-development activities: Provided, That no funds from the land development fund shall be used to carry on propaganda, or otherwise attempt to influence legislation.

(g) The housing development fund shall create and establish a special account within the land development fund to be designated as the "special project account" into which the housing development fund shall, effective the first day of July, one thousand nine hundred ninety-two, deposit the sum of ten million dollars. Such funds shall be governed, administered and accounted for by the housing development fund as a special purpose account separate and distinct from any other moneys, fund or funds owned or managed by the housing development fund. The sole and exclusive purpose of such account is to provide a source of funds for the financing of infrastructure projects including distribution from time to time to the West Virginia water pollution control revolving fund created pursuant to section three, article two, chapter twenty-two-c of this code: Provided, That such distribution shall not exceed five million four hundred fifty thousand dollars; and distribution from time to time to fund soil conservation projects: Provided, however, That such distribution shall not exceed four million five hundred fifty thousand dollars. Until so disbursed, the moneys initially deposited or thereafter from time to time deposited in such special project account, may be invested and reinvested by the housing development fund as permitted under subdivision (8), section six of this article. Any funds remaining in the special project account on the first day of July, one thousand nine hundred ninety-five, shall automatically revert to the general fund of the housing development fund free of any limitations provided in this section. The provisions of subsections (c), (d), (e) and (f) of this section do not apply to the special project account created in this section.


WVC 31 - 18 - 20 B §31-18-20b. Mortgage finance bond insurance fund.

(a) There is hereby created and established in the state treasury a special trust fund to be designated the "mortgage finance bond insurance fund" into and from which moneys shall be paid as provided in this section. The mortgage finance bond insurance fund shall be under the supervision and control of the state sinking fund commission and all moneys and securities held therein or investments thereof shall be held in trust subject to use and application only as provided herein and in the resolution or resolutions of the housing development fund authorizing the issuance of any mortgage finance bonds, notwithstanding any other provision of law. The mortgage finance bond insurance fund shall be kept separate and apart from all other moneys and funds of the state and the housing development fund is hereby authorized to pledge any amount or amounts held therein to the payment of the principal (including annual sinking fund payments) of, and interest on, mortgage finance bonds in the manner and to the extent and on such terms and conditions as may be provided by the housing development fund.

(b) In addition to any other fees and charges which the housing development fund may charge on loans, it shall charge on all loans or mortgages made or purchased with the proceeds of sale of mortgage finance bonds, except federally insured construction loans, federally insured mortgages, or federal mortgages, a special bond insurance commitment fee and special bond insurance premiums. The special bond insurance commitment fees and special bond insurance premiums so charged shall be remitted to the state sinking fund commission, promptly after the last day of each calendar quarter, by the housing development fund, or by any trustee, trustees, agent or agents designated by the housing development fund to receive the same and shall be held, invested and, together with all investment income thereon, reinvested by the state sinking fund commission in investments authorized under section six of this article.

(c) Simultaneously with the issuance of any mortgage finance bonds, the housing development fund shall cause to be deposited in the mortgage finance bond insurance fund an amount of the proceeds of sale and delivery of such mortgage finance bonds which together with the sum of the amount then on deposit in the mortgage finance bond insurance fund and in reserves theretofore or then set aside with a trustee or trustees and held pursuant to the resolution or resolutions authorizing the issuance of such bonds only for the payment of designated mortgage finance bonds prior to, or at, their maturity, shall equal the minimum bond insurance requirement. Except as provided in subsection (e) of this section, amounts on deposit in the mortgage finance bond insurance fund which are in excess of the minimum bond insurance requirement may be withdrawn from the mortgage finance bond insurance fund and paid to or upon the order of the housing development fund upon thirty days' notice in writing to the state sinking fund commission. For the purposes of determining any amounts held in the mortgage finance bond insurance fund, securities held in or other investments of the mortgage finance bond insurance fund shall be valued at par. If, at any time, the housing development fund shall determine that because of defaults or other reasons, the moneys available therefor shall be insufficient to pay the principal, including the annual sinking fund payment, of, and interest on, mortgage finance bonds becoming due during the next ensuing six-month period, the housing development fund shall give written notice to the state sinking fund commission to transfer the amount of moneys required for such payment, on or before the time and to such trustee or paying agent for any of the mortgage finance bonds as shall be specified in such notice, and the state sinking fund commission shall make such transfer.

(d) In the event that the sum of the amount held in the mortgage finance bond insurance fund and in reserves set aside with a trustee or trustees and held pursuant to the resolution or resolutions authorizing the issuance of such bonds only for the payment of designated mortgage finance bonds prior to, or at, their maturity, shall be less than the minimum bond insurance requirement, the chairman of the housing development fund shall certify, on or before the first day of December of each year, the amount of such deficiency to the governor of the state, for inclusion, if the governor shall so elect, of the amount of such deficiency in the budget to be submitted to the next session of the Legislature for appropriation to the state sinking fund commission for deposit in the mortgage finance bond insurance fund: Provided, That the Legislature shall not be required to make any appropriation so requested, and the amount of such deficiencies shall not constitute a debt or liability of the state.

(e) Subject to any agreement or agreements with holders of outstanding notes and bonds of the housing development fund, any amount or amounts paid by the state into the mortgage finance bond insurance fund pursuant to this section shall be repaid to the state as, when, and to the extent, amounts held in the mortgage finance bond insurance fund at any time or times after any payment by the state into the mortgage finance bond insurance fund shall exceed the minimum bond insurance requirement at such time or times or as may otherwise be provided by law.


WVC 31 - 18 - 20 C §31-18-20c. Jobs development fund.

There is hereby created and established a special fund to be designated as the "jobs development fund" into which the housing development fund shall, effective the first day of July, one thousand nine hundred ninety-two, deposit the sum of ten million dollars. Thereafter, the housing development fund shall have no further duty or obligation to, but may in its sole discretion, deposit additional funds. Such funds shall be governed, administered and accounted for by the housing development fund as a special purpose account separate and distinct from any other moneys, fund or funds owned or managed by the housing development fund. The sole and exclusive purpose of such fund shall be to provide a source for distribution from time to time to the jobs investment trust as provided for in article seven, chapter twelve of this code. Upon receipt by the housing development fund from time to time of a written requisition from the trust together with a certificate that the funds so requisitioned will be used in accordance with the provisions of article seven, chapter twelve of this code and are expected to be expended within thirty days after such disbursement to fund a loan or other investment or to pay the operating expenses of the trust, the housing development fund shall disburse the amount so requisitioned. Until so disbursed, the moneys initially deposited or thereafter from time to time deposited in such fund may be invested and reinvested by the housing development fund as permitted under subdivision (8), section six of this article. Upon the dissolution or the termination of the jobs investment trust board, any funds remaining in the jobs development fund shall automatically revert to the general fund of the housing development fund free of any limitations provided in this section.


WVC 31 - 18 - 21 §31-18-21. Prohibition on funds inuring to the benefit of or being distributable to directors, officers or private persons; transactions between the housing development fund and directors or officers having certain interests in such transactions.

(a) No part of the funds of the housing development fund, or of the operating loan fund, or of the land development fund, shall inure to the benefit of or be distributable to its directors or officers or other private persons except that the housing development fund shall be authorized and empowered to pay reasonable compensation, other than to the directors, including the chairman, vice chairman and treasurer of the board of directors and the secretary of the board of directors, for services rendered and to make loans and exercise its other powers as previously specified in furtherance of its corporate purpose: Provided, That no such loans shall be made, and no property shall be purchased or leased from, or sold, leased or otherwise disposed of, to any director or officer of the housing development fund.

(b) Notwithstanding any provision contained in paragraph (a) of this section, no loans shall be made by the housing development fund to, and no property shall be purchased or leased from, or sold, leased or otherwise disposed of to, any corporation or other entity in which any officer or director is a stockholder or is otherwise financially interested, unless:

(1) The interest of such director or officer in such transaction is specifically and fully disclosed to the board of directors of the housing development fund at the time it authorizes, approves or ratifies such transaction and the fact and nature of such interest are stated in the minutes of each meeting of the board of directors at which such transaction is considered;

(2) Such transaction is fair and reasonable to the housing development fund; and

(3) In the case of a director, such director abstains from voting or written consent as to the authorization, approval or ratification of such transaction by the board of directors of the housing development fund.


WVC 31 - 18 - 22 §31-18-22. Termination or dissolution.
Upon the termination or dissolution, all rights and properties of the housing development fund, including the operating loan fund, the land development fund, and the mortgage finance bond insurance fund, shall pass to and be vested in the state of West Virginia, subject to the rights of bondholders, lienholders and other creditors.


WVC 31 - 18 - 23 §31-18-23. Services to the state of West Virginia and its political subdivisions.
(a) The housing development fund may provide technical, consultative and project assistance services to the state of West Virginia and any of its political subdivisions and is hereby authorized to enter into contracts with the state of West Virginia and any of its political subdivisions to provide such services.

(b) The state of West Virginia or any political subdivision thereof is hereby authorized to enter into contracts with the housing development fund for such services and to pay for such services as may be provided to it.


WVC 31 - 18 - 23 A §31-18-23a. Bond issues under the Federal Revenue Adjustments Act of 1980.

Under subtitle A of Public Law 96-499, which is called the "Mortgage Subsidy Bond Tax Act," a subtitle of the "Revenue Adjustments Act of 1980," this state is permitted to issue up to two hundred million dollars per year during the three year life of the act. Pursuant to that act, the Legislature hereby authorizes the West Virginia housing development fund to issue bonds in the aggregate amount of one hundred million dollars in the year one thousand nine hundred eighty-three. County and municipal governments are hereby authorized to issue bonds in the amount of one hundred million dollars during the year one thousand nine hundred eighty-three: Provided, That the allocation to a county or municipality is to be based on a formula using the percentage of the state population residing in the county or municipality based on the 1980 census: Provided, however, That use of the allocation by a county or municipality is conditioned upon such county or municipality providing to the housing development fund an analysis supporting the demand for the bonds to be issued or firm commitments from qualified lenders participating in the program. Each county and municipality shall have until the thirtieth day of September, one thousand nine hundred eighty-three, to sell bonds allocated under this act, after which time all unused authority is then allocated to the housing development fund. The housing development fund shall determine the manner of reallocation for such unused authority or may itself issue bonds for all or part of the unused authority. Counties and municipalities choosing not to issue bonds may assign any unused authority to another county or municipality upon notification of such action to the housing development fund. Such transfer must result in a sale of bonds by the thirtieth day of September of that year. Any county or municipality may apply in the manner prescribed by the housing development fund for reallocation or an additional allocation.


WVC 31 - 18 - 24 §31-18-24. Annual audit; reports to joint committee on government and finance; information to joint committee or legislative auditor.

The housing development fund shall cause an annual audit to be made by an independent certified public accountant of its books, accounts and records, with respect to its receipts, disbursements, contracts, mortgages, leases, assignments, loans and all other matters relating to its financial operations, including those of the operating loan fund, the land development fund, and the mortgage finance bond insurance fund. The person performing such audit shall furnish copies of the audit report to the commissioner of finance and administration, where they shall be placed on file and made available for inspection by the general public. The person performing such audit shall also furnish copies of the audit report to the speaker of the House of Delegates, the president of the Senate and the majority and minority leaders of both houses.

In addition to the foregoing annual audit report, the housing development fund shall also render every six months to the joint committee on government and finance a report setting forth in detail a complete analysis of the activities, indebtedness, receipts and financial affairs of such fund and the operating loan fund, the land development fund, and the mortgage finance bond insurance fund. Upon demand, the housing development fund shall also submit to the joint committee on government and finance or the legislative auditor any other information requested by such committee or the legislative auditor.


WVC 31 - 18 - 25 §31-18-25. Severability clause.
If any provision of this article or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the article, and to this end the provisions of this article are severable.


WVC 31 - 18 - 26 §31-18-26. Projects not to be deemed public improvements.

No project or business facility acquired, constructed, maintained, or financed in whole or in part by the housing development fund shall be deemed to be a "public improvement" within the meaning of the provisions of article five-a, chapter twenty-one of this code, as a result of such financing.


WVC 31 - 18 - 27 §31-18-27. Documentary materials concerning trade secrets; commercial, financial, or personal information; confidentiality.

Any documentary material or data made or received by the housing development fund for the purpose of furnishing assistance, to the extent that such material or data consists of trade secrets, commercial, financial or personal information regarding the financial position or business operation of such business or person, shall not be considered public records and shall be exempt from disclosure pursuant to the provisions of chapter twenty-nine-b of this code. Any discussion or consideration of such trade secrets, commercial, financial or personal information may be held by the housing development fund in executive session closed to the public, notwithstanding the provisions of article nine-a, chapter six of this code: Provided, That the housing development fund shall make publicly available the following information regarding executed loans: (1) the name of the debtor, (2) location(s) of the project, (3) amount of the loan or financial assistance provided by the fund, (4) the purpose of the loan or financial assistance, (5) the term, rate, and interest of the loan, and (6) the fixed assets which serve as security for the loan.


WVC 31 - 18 A- ARTICLE 18A. WEST VIRGINIA ENERGY CONSERVATION REVOLVING LOAN FUND.


WVC 31 - 18 A- 1 §31-18A-1. Short title.
This article shall be known and may be cited as the "West Virginia Energy Conservation Revolving Loan Fund."


WVC 31 - 18 A- 2 §31-18A-2. Legislative findings; declaration of policy and responsibility; purpose and intent of article.
It is hereby determined and declared as a matter of legislative finding: (a) That an energy shortage exists within the state of West Virginia; (b) that the energy shortage is severe in certain areas of the state and may become severe, from time to time, in other areas of the state; (c) that the cost to the consumer for energy usage continues to increase at an accelerated rate; (d) that the energy shortage has produced widespread unemployment, threatening the economic stability of this state; and (e) that these conditions are inimical to the health, welfare and prosperity of all residents of the state and to the sound growth of the state.

It is hereby declared to be the public policy and a responsibility of this state to assist its residents in improving the energy efficiency of their residential dwellings. It is the purpose and intent of the Legislature in enacting this article to provide low interest loans to residents of this state of low and moderate income, who own and occupy single family residential dwellings, as an incentive for the improvement of the energy efficiency of such dwellings.

The Legislature finds that the public policy and responsibility of the state as set forth in this section cannot be effectively attained without the funding, establishment, operation and maintenance of the energy conservation revolving loan fund.


WVC 31 - 18 A- 3 §31-18A-3. Definitions.
As used in this article, unless the context otherwise requires:

(1) "Residential dwelling" means a single family residence located in the state of West Virginia, which it is determined by the housing development fund can be substantially aided in the conservation of energy by the making of improvements financed with a loan under this article;

(2) "Eligible owner of a residential dwelling" means:

(a) Person or persons of low and moderate income who own and occupy a residential dwelling; or

(b) Person or persons of higher income who own and occupy a residential dwelling in such area or areas of this state which are determined by the West Virginia housing development fund, in consultation with the public service commission, by resolution, to be a critical energy shortage area; or

(c) Person or persons who own and occupy a residential dwelling and who because of age or disability are found and determined by the West Virginia housing development fund, by resolution, to require assistance in improving the energy efficiency of such dwellings to insure their health, safety and welfare;

(3) "Housing development fund" means the West Virginia housing development fund created and established by section four, article eighteen, chapter thirty-one of this code;

(4) "Revolving loan fund" means the West Virginia energy conservation revolving loan fund which is created and established by section six of this article;

(5) "Person or persons of low and moderate income" means a person or persons, irrespective of race, creed, national origin or sex, determined by the housing development fund to require such assistance as is made available by this article on account of personal or family income not sufficient to afford to implement or install energy conservation materials or equipment designed to improve the energy efficiency of residential dwellings, and in making such determination the housing development fund shall take into account the following: (a) The amount of the total income of such persons and families for housing energy needs; (b) the size of the family; (c) the cost and condition of the residential dwelling; and (d) the eligibility of such persons or families for federal housing energy conservation assistance of any type based upon low or moderate income basis.


WVC 31 - 18 A- 4 §31-18A-4. Administration of revolving loan fund by West Virginia housing development fund.
The West Virginia energy conservation revolving loan fund, established and authorized by section six of this article, shall be administered by the board of directors of the West Virginia housing development fund, a public corporate body, created and established by section four, article eighteen, chapter thirty-one of this code.


WVC 31 - 18 A- 5 §31-18A-5. Powers and duties of housing development fund regarding revolving loan fund.
The West Virginia housing development fund is hereby authorized and empowered:

(1) To accept appropriations, gifts, grants, bequests and devises, and to utilize or dispose of the same to carry out the purposes of this article;

(2) To make and execute contracts, releases, compromises, compositions and other instruments necessary or convenient for the exercise of its powers, or to carry out its purposes under this article;

(3) To collect reasonable fees and charges in connection with making and servicing loans, notes, obligations, commitments and other evidences of indebtedness, which fees shall be limited to the amounts required to pay the costs of the housing development fund, including operating and administrative costs;

(4) To invest funds not required for immediate disbursement in any of the following securities:

(i) Direct obligations of or obligations guaranteed by the United States of America;

(ii) Bonds, debentures, notes or other evidences of indebtedness issued by any of the following agencies: Bank for cooperatives; federal intermediate credit banks; federal home loan bank system; Export-Import Bank of the United States; federal land banks; the Federal National Mortgage Association or the Government National Mortgage Association;

(iii) Public housing bonds issued by public agencies or municipalities and fully secured as to the payment of both principal and interest by a pledge or annual contributions under an annual contributions contract or contracts with the United States of America; or temporary notes issued by public agencies or municipalities or preliminary loan notes issued by public agencies or municipalities, in each case, fully secured as to the payment of both principal and interest by a requisite or payment agreement with the United States of America;

(iv) Certificates of deposit secured by obligations of the United States of America;

(v) Direct obligations of or obligations guaranteed by the state of West Virginia;

(vi) Direct and general obligations of any other state within the territorial United States, to the payment of the principal of and interest on which the full faith and credit of such state is pledged: Provided, That at the time of their purchase, such obligations are rated in either of the two highest rating categories by a nationally recognized bond rating agency; and

(vii) Any fixed interest bond, note or debenture of any corporation organized and operating within the United States: Provided, That such corporation shall have a minimum net worth of fifteen million dollars and its securities or its parent corporation's securities are listed on one or more of the national stock exchanges: Provided, however, That (1) such corporation has earned a profit in eight of the preceding ten fiscal years as reflected in its statements, and (2) such corporation has not defaulted in the payment of principal or interest on any of its outstanding funded indebtedness during its preceding ten fiscal years, and (3) the bonds, notes or debentures of such corporation to be purchased are rated "AA" or the equivalent thereof or better than "AA" or the equivalent thereof by at least two or more nationally recognized rating services such as Standard and Poor's, Dun & Bradstreet or Moody's;

(5) To sue and be sued;

(6) To promulgate and publish rules and regulations not inconsistent with the provisions of this article;

(7) To appoint such employees and consultants as it deems advisable and to fix their compensation and prescribe their duties;

(8) To acquire, hold and dispose of personal property for its purposes under this article;

(9) To enter into agreements or other transactions with any federal or state agency, any person, or any domestic or foreign partnership, corporation, association or organization;

(10) To sell, at public or private sale, any mortgage or other negotiable instrument or obligation securing a loan made under the provisions of this article;

(11) To establish guidelines to be complied with by any person, firm, association, partnership or corporation, engaged in supplying, retailing or installing energy conservation materials or equipment designed to improve the energy efficiency of residential dwellings to be improved with financing under this article;

(12) To approve any person, firm, association, partnership or corporation who shall enter into any bargain, agreement or contract to furnish or install energy conservation materials or equipment for a residential dwelling, the cost and expense of which shall be defrayed by a loan made pursuant to this article;

(13) To make loans in the manner and under the terms and conditions prescribed by this article to eligible owners of residential dwellings to defray the costs of financing the purchase and installation of energy conservation materials and equipment, designed to improve the energy efficiency of such dwelling;

(14) To establish and supervise an inspection program to assure the satisfactory nature of all materials and workmanship for energy efficiency improvements financed by loans made pursuant to this article and to utilize to the extent possible the services of municipal building inspectors;

(15) To enter into agreements with banks, public utilities and other entities for advertising the energy conservation revolving loan fund, for taking applications for loans from such fund, for supervising the execution of promissory notes, deeds of trust and other papers associated with the energy conservation revolving loan fund, for approving and inspecting energy conservation loan contracts to insure compliance with the provisions of this article, for accepting and transmitting loan payments, for the operation and administration of any other aspect of the energy conservation revolving loan fund established by this article and for reimbursing such banks, public utilities and other entities for any reasonable and necessary expenses incurred in the implementation of any such agreements.


WVC 31 - 18 A- 6 §31-18A-6. Revolving loan fund created; purpose; investment of funds; loan agreements; expenditures.
(a) The board of directors of the housing development fund shall create and establish a special revolving fund of moneys made available by appropriations, grants, contributions, bequests, devises, loan payments, interest and investment income, to be known as the energy conservation revolving loan fund and to be governed, administered and accounted for by the directors, officers and managerial staff of the housing development fund as a special purpose trust account separate and distinct from any other moneys, fund or funds owned and managed by the housing development fund.

(b) The purpose of the energy conservation revolving loan fund shall be to provide a source from which the housing development fund may make loans to eligible owners of residential dwellings.

(c) The housing development fund may invest and reinvest all moneys in the revolving loan fund in any investments authorized by section five of this article, pending the disbursement thereof in connection with loans made pursuant to this article.

(d) The housing development fund may expend any income from loans or investments authorized by this article in payment or reimbursement of all expenses of the housing development fund which, as determined in accordance with procedures approved by the board of directors, are fairly allocable to such financing or activities authorized by this article: Provided, That no funds shall be used to carry on propaganda or otherwise attempt to influence legislation.


WVC 31 - 18 A- 7 §31-18A-7. Terms and conditions of loans from revolving loan fund.
No loans shall be made by the housing development fund except to eligible owners of residential dwellings who meet reasonable criteria of credit worthiness as defined by the housing development fund and in accordance with a written loan agreement which shall include, but not be limited to, the following terms and conditions:

(1) No loan shall be made under the provisions of this article, unless an affidavit shall be executed by the eligible owner asserting his title to the residential dwelling and submitted to the housing development fund together with evidence of his source of title;

(2) The proceeds of all such loans shall be used only for financing the cost of improving the energy efficiency of residential dwellings through the installation or upgrading of insulation, storm windows and doors, caulking, weather stripping, heat pumps, or other energy conservation materials or equipment in such dwellings;

(3) All such loans shall be repaid in full over a period of time not to exceed three years and at a rate of interest not to exceed three percent;

(4) All such loans shall be limited to a maximum amount of two thousand dollars for each residential dwelling: Provided, That in no event shall the amount of the loan exceed the actual cost of materials purchased, or the actual cost of materials and labor furnished or supplied by any person, firm, association, partnership or corporation certified by the housing development fund;

(5) Each such loan shall be evidenced by a negotiable promissory note executed and delivered by the eligible owner or owners and shall be secured by a deed of trust upon the property and dwelling improved by the proceeds of the loan: Provided, That in no event shall a certificate of title, title insurance or other title security be required;

(6) All notes and deeds of trust accepted as security for loans under this article shall be payable to the order of and for the use and benefit of the West Virginia housing development fund;

(7) Payment of the loan proceeds shall be made by the housing development fund jointly to the owner and any person, firm, association, partnership or corporation supplying and furnishing materials or labor and materials upon a determination by the housing development fund and certification by the eligible owner that the workmanship and materials for energy efficiency improvements are satisfactory.


WVC 31 - 18 A- 8 §31-18A-8. Prohibition on funds inuring to the benefit of or being distributable to the directors or officers.
No part of the funds of the energy conservation revolving loan fund shall inure to the benefit of or be distributable to the directors or officers of the housing development fund except that the housing development fund shall be authorized and empowered to pay reasonable compensation for services rendered and to make loans as previously specified in furtherance of its purposes under this article.


WVC 31 - 18 A- 9 §31-18A-9. Termination or dissolution.
Upon termination or dissolution of the housing development fund or the energy conservation revolving loan fund, all rights and properties held pursuant to the provisions of this article shall pass to and be vested in the state of West Virginia, subject to the rights of lienholders and other creditors.


WVC 31 - 18 A- 10 §31-18A-10. Annual audit.
The housing development fund shall cause an annual audit to be made of the energy conservation revolving loan fund by a resident independent certified public accountant of its books, accounts, and records, with respect to its receipts, disbursements, contracts, mortgages or deeds of trust, assignments, loans and all other matters relating to its financial operations of the revolving loan fund. The person, firm, association, partnership or corporation performing such audit shall furnish copies of the audit report to the commissioner of finance and administration, where they shall be placed on file and made available for inspection by the general public.


WVC 31 - 18 A- 11 §31-18A-11. Severability clause.
If any provision of this article or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable.


WVC 31 - 18 B- ARTICLE 18B. MORTGAGE AND INDUSTRIAL DEVELOPMENT INVESTMENT POOL.


WVC 31 - 18 B- 1 §31-18B-1. Legislative intent.

The Legislature finds and declares that:

(1) The vast majority of West Virginians have pursued a goal of owning a home, a center of family life and family independence deeply cherished and highly valued.

(2) In many parts of the state there is a large number of single-family residential units that cannot presently be marketed because of high interest rates and adverse economic conditions, or because of having been declared to be a federal disaster area by the Federal Emergency Management Agency.

(3) In addition, the state and its inhabitants are suffering high unemployment and low income because of the depressed state of the housing market and because of its inability to attract new business. This situation adversely affects potential home buyers, home builders, skilled craftsmen, realtors and their employees and other citizens. These conditions also reduce state revenues and frustrate the laudable aspirations of many West Virginians to enjoy the pleasures of home ownership and pursue productive employment, or because of having been declared to be a federal disaster area by the Federal Emergency Management Agency.

(4) By the cooperative efforts of our citizens there is a large pool of resources held in trust by the state for the sole benefit of West Virginians, including funds reserved for workers injured in the course of employment.

(5) Some of these funds, particularly the workers' compensation fund, are invested under the actuarial assumption of a yield less than that of current market investments. Yet the current yield on some of these funds, and particularly the workers' compensation fund, is lower than the actuarially assumed interest rate, and has been for at least three years.

(6) The common good does not require that all of these funds be invested so as to yield the very highest investment return offered in the market, especially when the current rate of market interest is:

(a) So high that it stifles the legitimate aspirations and attainable dreams of so many West Virginians and West Virginia businesses; and

(b) So high that it encourages the flight of capital accumulated by West Virginians for the benefit of West Virginians to national markets where the only consideration is the highest rate of return.

(7) In these circumstances, prudence does not require that the state board of investments seek the highest rate of return on all investments. Rather, prudence requires that in investing federally tax-free funds the state board of investments should seek a rate of return commensurate with its public charter. Furthermore, prudence demands that the board immediately seek fiscally sound investments within the state of West Virginia which offer sound security and directly serve the hopes and aspirations in housing and employment of the inhabitants of this state.

(8) The survival and renewal of a vibrant market for single- family residential units and the opportunity to attract new businesses to the state is a sound and preferred investment for the resources held in trust by this state for its citizens. Such investments deserve precedence and encouragement, even at the expense of foregoing the highest rate of investment return, an investment return which the tax paying investor might gain in the current market place but which prudence dictates that the state board of investments need not pursue.

(9) The success of the undertakings required by this article will be amply demonstrated by: (a) The increased financial stability of the state, (b) the contribution which will occur when the dreams of hundreds of West Virginians are realized, (c) the intrinsic worth of enhancing the cooperative spirit of the inhabitants of this state in employment and housing, and (d) the enhancement of revenue to the state which will be generated by the commerce West Virginia seeks to stimulate. In addition, the rate of return realized by these funds will be at least as high as the actuarial assumptions, and, given the rates of return demonstrated over the past three years, probably higher than the current rate of return.


WVC 31 - 18 B- 2 §31-18B-2. Establishment of state mortgage and industrial development investment pool; investment of workers' compensation funds and other funds in such pool; schedule of moneys invested; authority of state board of investments to invest funds from the pool in short-term investments; reversion of control of state board of investments.

(a) There is hereby created and established a "state mortgage and industrial development investment pool" into which moneys shall be paid as provided in this section. The state mortgage and industrial development investment pool shall consist of a portion of the moneys and funds entrusted to the state board of investments by the commissioner of workers' compensation and other state agencies and organizations, which funds are invested by the state board of investments in long-term securities according to the provisions of this code: Provided , That no moneys or funds from any pension plan shall be invested in the state mortgage and industrial development investment pool.

(b) Notwithstanding any of the restrictions of section nine, article six, chapter twelve, the state board of investments shall make available from the workers' compensation funds and other such funds which it invests, moneys for the state mortgage and industrial development investment pool. Such moneys shall be drawn from workers' compensation funds and other funds except pension funds currently invested by the state board of investments and shall be made available for investment on or before the dates established in subsection (c) of this section: Provided , That should the workers' compensation fund fall below three hundred million dollars, then no further transfers provided in this section be granted until the fund again reaches four hundred million dollars.

(c) The state board of investments shall make available for investment in the state mortgage and industrial development investment pool the funds identified in subsections (a) and (b) of this section according to the following schedule:

(1) On the effective date of this act, twenty-five million dollars, of which twenty million dollars is to be deposited in the pool for investment by the housing development fund and five million dollars is to be deposited in the pool for investment by the economic development authority.

(2) On the first day of October, one thousand nine hundred eighty-two, twenty-five million dollars, of which twenty million is to be deposited in the pool for investment by the housing development fund, and five million is to be deposited in the pool for investment by the economic development authority.

(3) On the first day of January, one thousand nine hundred eighty-three, twenty-five million dollars, of which ten million dollars is to be deposited in the pool for investment by the housing development fund, and fifteen million dollars is to be deposited in the pool for investment by the economic development authority.

(4) On the first day of April, one thousand nine hundred eighty-three, twenty-five million dollars, all of which is to be deposited in the pool for investment by the economic development authority.

Investments by the housing development fund are to be made pursuant to the provisions of section three of this article, and by the economic development authority pursuant to section four of this article.

(d) The state board of investment may, after committing these funds to the state mortgage and industrial development investment pool, at the discretion of the treasurer's office, invest the moneys of such pool in any short-term investments as may be deemed to be prudent and proper until such funds are invested by the housing development fund or the West Virginia economic development authority. The income from such short-term investments shall accrue to and be credited to the accounts from which such funds were drawn in proportion to the amount of funds so drawn.

(e) The funds invested in the state mortgage and industrial development pool shall be invested solely for the benefit of the accounts from which the funds are drawn in proportion to the amount so drawn. For purposes of crediting of investment returns to the proper account, the state board of investments is to consider the state mortgage and industrial development investment pool as it would any other long-term investment at a fixed rate of return.

(f) The housing development fund and the West Virginia economic development authority may release the funds from the state mortgage and industrial development investment pool to the control of the state board of investments if it determines that lower interest rates than those now prevailing require that such funds cannot be competitively invested in first mortgages on residential property or industrial development projects located in the state.


WVC 31 - 18 B- 3 §31-18B-3. Housing development fund to make available state mortgage and industrial development investment pool funds for mortgages on single-family residential units; limitations upon type and size of such mortgages.
(a) The housing development fund shall make available at the interest rate specified in section six of this article, one half of the moneys from the state mortgage and industrial development investment pool for investment in mortgages on single-family residential units, twenty-five percent of which shall be designated and restricted, for a period of twelve months, to new and never occupied single-family residential units which shall, if not so used, revert to investments in other nonrestricted mortgages. For the purposes of this article, a single-family residential unit means a detached unit on a separate piece of land used solely for the housing of one family, and only one family, which family owns the dwelling and the land or has a mortgage thereupon, and also includes townhouses or row houses used by a family as a residential dwelling, and owned by the family.

(b) Loans made by the housing development fund from the state mortgage and industrial development investment pool are to be made solely for the purpose of purchasing real estate upon which is situate a single-family unit, or for the construction of a single- family residential unit upon real estate by the buyer of such unit to provide housing for only himself and his family, or for the purpose of the payment of a loan theretofore made for the construction of a single-family residential unit, or for the purpose of purchasing real estate upon which is situate a single- family residential unit and making additions or improvements thereto: Provided, That none of these loans shall be used to refinance existing loans, except construction loans or loans made to such units situated in a federal disaster area as so declared by the Federal Emergency Management Agency. Each such loan must be secured by a first mortgage or first deed of trust upon such real property. Such mortgage or deed of trust shall be held by the housing development fund or its assignee.

(c) Loans made pursuant to the provisions of this section may not exceed eighty-five percent of the appraised value of the real estate and single-family residential unit: Provided, That if the loan is for the purchase of a single-family residential unit for the purpose of making additions and improvements thereto, such loan shall be no more than eighty-five percent of the appraised value of the property including such improvements when made, as estimated by an appraiser retained by the fund.

(d) In no event may a loan obtained pursuant to this section be for an amount greater than seventy-five thousand dollars.

(e) Mortgage loans made pursuant to the provisions of this section shall be insured for at least twenty percent of the amount of the loan by either an agency of the federal government or a private mortgage insurance company licensed in the state.


WVC 31 - 18 B- 4 §31-18B-4. West Virginia economic development authority to make available state mortgage and industrial development investment pool funds for investment in industrial development; amount of funds available; interest rate specified.

(a) The West Virginia economic development authority may use for any investments authorized by sections seven and seven-a, article fifteen, chapter thirty-one of this code, up to one half of the funds of the state mortgage and industrial development investment pool: Provided , That the economic development authority shall deposit with the treasurer of the state for the credit of the state mortgage and industrial development pool such notes, security interests or bonds issued by the economic development authority evidencing the indebtedness of the authority to the pool.

(b) Such notes, security interests or bonds issued by the authority shall be secured by security equal to or better than one of the three highest rating grades by an agency which is nationally known in the field of rating corporate securities: Provided , That notes, security interests or bonds evidencing indebteness of two million dollars or less may be secured by a letter of credit guarantee issued by a bank having an unsecured legal lending limit greater than one million dollars.

(c) The interest rate and the maturity dates of the notes, security interests or bonds held by the treasurer for the state mortgage and industrial development investment pool shall be determined by the economic development authority according to the provisions of section eleven, article fifteen, chapter thirty-one of this code: Provided , That such interest rate shall not be less than the prior four-week auction average yield for thirteen-week treasury bills and such rate shall be valid for a term of not more than three years: Provided, however , That the economic development authority may determine a variable rate of interest to be adjusted no less frequently than semiannually, and such variable interest rate shall not be less than the prior four-week auction average yield for thirteen-week treasury bills.


WVC 31 - 18 B- 5 §31-18B-5. Reversion to state board of investments of money not used for mortgages.

Should the housing development fund or its agents fail to loan all or a portion of the funds made available pursuant to section two of this article within one year of the date those funds become a part of the state mortgage and industrial development investment pool, then that portion of the funds not invested shall revert to the exclusive control of the state board of investments and shall no longer be required to be available to the state mortgage and industrial development investment pool.


WVC 31 - 18 B- 6 §31-18B-6. Interest rate charged by housing development fund; other charges; points .

(a) The interest charged for mortgage loans obtained according to the provisions of section three of this article shall not exceed the monthly index of long-term United States government bond yields for the calendar month preceding the date the commitment for such loan is made: Provided, That in no event shall the interest rate be more than twelve percent per annum, nor less than ten percent per annum. For the purposes of this section, the monthly index of long-term United States government bond yields means the monthly unweighted average of the daily unweighted average of the closing bid yield quotations in the over-the-counter market for all outstanding United States treasury bond issues which mature twenty years or more from the date the index is calculated, but shall not include such bonds as are redeemable at par for payment of federal estate taxes.

(b) The housing development fund may charge such points to the seller of the real estate covered by the first mortgage deed or deed of trust as are necessary to offset costs of making the loan, including, but not limited to, the costs of processing the loan application and the costs of interest charges incurred between the commitment date of the loan and the date the property is actually purchased: Provided, That such points charged shall not exceed two points and shall be charged to the seller: Provided, however , That the real estate broker shall, from his or her commission, pay an amount equal to one point. The seller shall furnish to the fund satisfactory proof that he or she has not within the two years preceding the contract of the sale offered the house to the buyer for less than the sale price provided in the contract or sale between them. The proceeds from such points paid by the seller and broker to the housing development fund, less actual housing development fund expenses up to one half of one point, and less an amount equal to the first year cost for mortgage insurance required by section three of this article, shall be transmitted to the state board of investments as provided in section ten of this article.


WVC 31 - 18 B- 7 §31-18B-7. Term of mortgage loans; renegotiation after ten years; promulgation of legislative rules.

(a) The term of the loans made pursuant to the provisions of this article shall be not less than twenty nor more than thirty years and shall be assumable by a person financially qualified according to the provisions of section eight of this article.

(b) The housing development fund may include in the first mortgage agreement or deed of trust a provision which allows it to renegotiate the rate of return after ten years. Such provision may be written to allow the housing development fund to increase the interest rate for the remainder of the loan to the then monthly index of long-term United States government bond yields as defined in section six of this article for the calendar month preceding registration, as defined in section six of this article, plus two percent per annum: Provided , That the maximum renegotiated rate may not exceed fourteen percent per annum: Provided, however , That if the holder of the mortgage presents evidence that his average gross income for the two years prior to the renegotiation is no more than one sixth greater than his income at the time the loan was made, then the loan shall not be renegotiated.

(c) The housing development fund shall propose legislative rules according to the provisions of chapter twenty-nine-a of this code to implement this section.


WVC 31 - 18 B- 8 §31-18B-8. Persons eligible for loans from the state mortgage and industrial development investment pool; housing development fund to have sole discretion in determining who is to receive loans; discrimination prohibited .

(a) Any person is entitled to receive a first mortgage or deed of trust from the state mortgage and industrial development investment pool for real estate situated within the boundaries of the state if the person's family income for each of the two years preceding the commitment year is fifty thousand dollars or less: Provided, That such person must be purchasing the real estate for use as his or her single- family residential unit as defined in section three of this article: Provided, however, That such person is qualified for the loan as provided in this section.

(b) The housing development fund shall have sole discretion in determining who is qualified to receive mortgage loans from the state mortgage and industrial development investment pool, subject to the provisions of section fourteen of this article. The housing development fund shall establish by interpretive rule promulgated pursuant to the provisions of chapter twenty-nine-a guidelines for the exercise of this discretion.

(c) The housing development fund shall issue mortgage loans to such qualified buyers on the basis of the first of such buyers in the order in which the applications are approved.

(d) In view of the uncertain economic conditions prevailing, the fund may propose legislative rules which, if promulgated, suspend all or any of the provisions of this section.

(e) The housing development fund shall not discriminate against buyers on the basis of race, sex, national origin, religion or location in the state in which the buyer resides.


WVC 31 - 18 B- 9 §31-18B-9. Housing development fund may contract with private institutions to place and service loans or may itself provide such servicing; increasing interest rate and payment of a portion of interest to cover cost of servicing.
(a) The housing development fund may contract with private mortgage companies, savings and loan associations or banks to provide for the placement, origination and servicing of the mortgages described in this article or the housing development fund may provide such servicing: Provided, That such institutions must be licensed to do business in West Virginia and, in the case of a savings and loan, or a bank, must be under the supervision of the department of banking of this state as provided in chapter thirty- one-a of this code or must be a national bank or a federally insured savings and loan. Such institutions shall follow the same restrictions as the housing development fund, and shall act only as the agent for such.

(b) Notwithstanding the maximum interest rate specified in section six of this article, the housing development fund is authorized to increase the interest rate, up to one half of one percent over the rate provided in section six to pay the cost of placing and servicing the mortgages.

(c) If the housing development fund so determines, one of the points provided for in section six of this article may be paid to the private mortgage company, bank or savings and loan to cover the expense of origination of the loan.


WVC 31 - 18 B- 10 §31-18B-10. Disposition of interest income and repayments of principal.

(a) The interest received from mortgage payments made pursuant to the provisions of this article shall be transmitted to the state board of investments monthly.

(b) Such interest shall be treated by the state board of investments as an investment return, and shall be credited to the workers' compensation account or other appropriate accounts in the same manner as interest received on other investments.

(c) The funds from repayment of principal of mortgage loans shall be reinvested by the housing development fund according to the provisions of section five of this article. Funds which have been repaid to the state mortgage and industrial development investment pool and not reinvested in mortgages within one year shall revert to the sole control of the state board of investments and shall no longer be considered part of the state mortgage and industrial development investment pool.


WVC 31 - 18 B- 11 §31-18B-11. Procedural rules required.

The housing development fund may promulgate procedural rules pursuant to chapter twenty-nine-a which describe procedures used to procure a loan pursuant to the provisions of this article and to introduce such forms as may be required.


WVC 31 - 18 B- 12 §31-18B-12. Rules of construction and interpretation for prompt implementation of this article.
It is the intent of the Legislature that the housing development fund shall proceed with the implementation of this article promptly upon the effective date of this article under the provisions of this section and of Enrolled Committee Substitute for Senate Bill No. 409, enacted at the regular session of the Legislature in the year one thousand nine hundred eighty-two.

Notwithstanding the provisions of sections seven and eight of this article for the promulgation of legislative rules and notwithstanding any contrary provisions of chapter twenty-nine-a of this code:

(1) The housing development fund may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to implement this article. Any such emergency rule, whether procedural, interpretive or legislative, shall be effective upon filing thereof in the state register. No findings of circumstances to justify such emergency rules shall be required; such emergency rules shall be deemed to have been promulgated to comply with a time limitation established by this code. No action shall lie for de novo or other review of such rule to contest or question the existence of circumstances justifying the promulgation of an emergency rule nor to challenge the validity of such rule because of its classification as an emergency rule: Provided, That no such rule shall suspend the provisions of section eight of this article.

(2) Any deed, deed of trust, mortgage or other instrument or document utilized in connection with any transaction arising under or affected by this article may contain provisions related to any emergency rule promulgated under this section and any extension or amendment thereof and shall, to the extent the instrument or document so provides, fully bind and be enforceable by the parties thereto as if such rule had been properly made effective under law and whether or not such rule thereafter expires or is revoked: Provided, That no such provision or agreement under this subdivision shall suspend the provisions of this article or exceed its limitations.


WVC 31 - 18 C- ARTICLE 18C. VETERANS' MORTGAGE FUND.


WVC 31 - 18 C- 1 §31-18C-1. Short title.
This article shall be known and may be cited as the "West Virginia Veterans' Mortgage Fund Act."


WVC 31 - 18 C- 2 §31-18C-2. Legislative findings; purpose and intent of article.

It is hereby found, determined and declared as a matter of legislative finding: (a) That veterans, who have sacrificed in the service of their country valuable years of their lives and considerable earning potential, constitute a readily identifiable and particularly deserving segment of this state's population; (b) that by making additional housing loans available to eligible veterans, limited below-market rate private home loan funds will be more readily available to those qualified to receive such loans; and (c) that the provisions of the Qualified Veterans Housing Bond Amendment of 1984 authorize the Legislature to enact legislation to establish a fund for the purpose of making loans to qualified veterans.

It is hereby declared to be the public policy of this state to assist its qualified veterans in financing owner-occupied residences. It is the purpose and intent of the Legislature in enacting this article to provide loans to qualified veterans of this state to finance owner-occupied single-family residential dwellings, as a recognition of their sacrifice and service.

The Legislature finds that the public policy of the state as set forth in this section cannot be effectively attained without the funding, establishment, operation and maintenance of the veterans' mortgage fund, and further, that although federal law now effectively prohibits the issuance of tax-exempt bonds to finance the operation of the veterans' mortgage fund program, at such time as federal law is amended so as to permit the issuance of such bonds, because of the critical need to provide such financing for veterans and because of the possibility that Congress might at any time thereafter again take action which would prohibit the operation of the veterans' mortgage fund program, an emergency will exist, requiring that any procedural, interpretive or legislative rules determined by the West Virginia housing development fund to be necessary for the administration of the veterans' mortgage fund program, be promulgated by the West Virginia housing development fund as emergency rules, in accordance with and subject to the provisions of section fifteen, article three, chapter twenty-nine-a of this code. This article authorizes the issuing and selling of general obligation bonds of the state secured by the general credit and taxing power of the state to be issued to provide financing for mortgage loans to qualifying veterans.


WVC 31 - 18 C- 3 §31-18C-3. Definitions.
As used in this article, unless the context otherwise requires:

(1) "Bond" means any veterans' mortgage bond, a state general obligation bond issued pursuant to this article;

(2) "Housing development fund" means the West Virginia housing development fund created and established under article eighteen, chapter thirty-one of this code;

(3) "Lending institution" means a bank, trust company, savings bank, national banking association, savings and loan association, building and loan association, mortgage bank, mortgage company, credit union, life insurance company or other financial institution that customarily provides service or aids in the financing of mortgages on single-family residential housing which has been approved for participation in the program by the housing development fund; the term includes a holding company for any of the foregoing;

(4) "Loan" means a veterans' mortgage loan to finance the purchase, construction, improvement or rehabilitation of a residential dwelling, made or acquired by the housing development fund under this article, in the name of and on behalf of the state, secured by a deed of trust or mortgage on such residential dwelling;

(5) "Outstanding bond" means a bond which has been issued pursuant to this article and has not been repaid, but does not include bonds which are to be paid from designated moneys or securities which are irrevocably held in trust solely for such purpose;

(6) "Program" means the veterans' mortgage fund program administered by the housing development fund pursuant to this article;

(7) "Residential dwelling" means a single-family residence located in the state, in which a veteran intends to reside as his or her principal residence;

(8) "State" means the state of West Virginia; and

(9) "Veteran" means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable.


WVC 31 - 18 C- 4 §31-18C-4. Veterans' mortgage fund created; purpose.
(a) There is hereby created and established under the jurisdiction of the office of the treasurer of the state a veterans' mortgage fund. All moneys resulting from the sale of bonds pursuant to this article shall be credited to such fund.

(b) For the purpose of creating and maintaining a fund to provide loans for veterans in accordance with this article, the state shall issue its negotiable bonds to provide funds for a veterans' mortgage fund loan program to be made pursuant to this article.


WVC 31 - 18 C- 5 §31-18C-5. Money and interests included in the veterans' mortgage fund.
(a) The veterans' mortgage fund shall include:

(1) Any interest of the state in all loans made to veterans pursuant to the program including any guaranty or insurance thereon or on the homes or any mortgage-backed certificates or like instruments taken in exchange therefor, until the principal amount of such loans together with any interest and penalties due have been received by the state;

(2) The proceeds from the issuance and sale of such bonds;

(3) Income, rents and any other pecuniary benefits received by the state as a result of making or acquiring veterans' mortgage loans;

(4) Sums received by way of indemnity or forfeiture for the failure of any bidder for the purchase of any such bonds to comply with his bid and accept and pay for such bonds;

(5) Interest received from investments of any such money including earnings received on bond proceeds prior to disbursement for the purchase of loans; and

(6) Any equitable interest in properties encumbered under this program.

(b) Money in the veterans' mortgage fund shall be deposited in the state treasury to the credit of the veterans' mortgage fund.

(c) Money in the fund shall be held in the following accounts:

(1) A loan account, into which shall be deposited the proceeds from the issuance and sale of bonds, from which loans shall be made or repaid; and

(2) A general account, into which shall be deposited all other money properly credited to the fund, from which shall be paid the principal of and interest on the bonds, and all expenses relating to the administration and operation of such fund.


WVC 31 - 18 C- 6 §31-18C-6. Veterans' mortgage bonds; amount; terms of bonds; when may issue.
(a) Bonds of the state, under authority of the Qualified Veterans Housing Bond Amendment of 1984, are hereby authorized to be issued and sold for the sole purpose of raising funds for the veterans' mortgage fund, to be used for financing loans. No such bonds may be issued, however, unless they are part of an issue described in a written declaration executed by the governor and filed in the office of the secretary of state. The aggregate annual amount payable on all such bonds, including both principal and interest, shall be limited such that the debt service accruing on such bonds in any fiscal year shall not exceed thirty-five million dollars exclusive of any amounts payable on such bonds for which moneys or securities have been irrevocably set aside and dedicated solely for the purpose of such payment. The total proceeds of each bond sale shall be deposited in the manner hereinafter provided and shall be earmarked, designated and used for the purposes of this article.

(b) The description contained in any declaration with respect to an issue of bonds hereunder shall specify that the veterans' mortgage fund program is to be financed through the issuance of the bonds, the estimate of the cost of loans, the aggregate amount of outstanding bonds which may at any point in time constitute a part of such issue, the time or times and manner of sale of such bonds, and the particular terms of such bonds, or the manner in which such terms will be determined, including the date or dates, time or times of issuance, time or times and amount or amounts of maturity or maturities, specified or variable rate or rates of interest, the form of such bonds and provisions for registration or exchange, if applicable, the method and manner of payment of such bonds, the provisions, if any, for redemption or renewal of such bonds, and specifying such other similar matters as the governor may determine to be necessary and appropriate in connection with the sale and issuance of the bonds.

(c) Such bonds shall be executed by the governor under the great seal of the state, attested by the signature of the secretary of state, and the coupons, if any, attached thereto shall be authenticated by the signature of the governor. Such signatures may be by facsimile signature, but, unless provision has been made for the authentication thereof by a bond registrar determined to be responsible by the governor, each bond shall bear at least one manual signature.

(d) Prior to the preparation of definitive bonds, the governor may under like restrictions issue temporary bonds with or without coupons, exchangeable for definitive bonds upon the issuance of the latter. Such bonds may be issued without any other proceedings, or the happening of any other conditions or things than those proceedings, conditions or things which are specified and required by this article or by the constitution of the state.


WVC 31 - 18 C- 7 §31-18C-7. Pledge of credit of state and security for bonds.
(a) The state covenants and agrees with the holders of the bonds issued pursuant hereto as follows: (1) That such bonds shall constitute a direct and general obligation of the state; (2) that the full faith and credit of the state is hereby pledged to secure the payment of the principal of and interest on such bonds; (3) that an annual state tax shall be collected in an amount sufficient to pay, as it may accrue, the interest on such bonds and the principal thereof; and (4) that such tax shall be levied in any year only to the extent that the moneys in the veterans' mortgage fund irrevocably set aside for and applied to the payment of the interest on and principal of said bonds becoming due and payable in such year are insufficient therefor.

(b) In addition, in connection with any issue of bonds hereunder, the governor may pledge or assign as security for the payment of the principal of or interest on such bonds, any of the following:

(1) The proceeds of any such bonds pending their use or of bonds which may be issued to renew such bonds;

(2) The loans made with the proceeds of such bonds including all collateral security for the payment of such loans;

(3) The proceeds of any mortgage or other insurance or guaranty or letters of credit or similar arrangements undertaken in connection with the financing of the program; and

(4) Any other assets, including certificates of any entity approved by the governor received in exchange for loans pursuant to subdivision (k), section sixteen of this article, specifically designated for the purpose of paying any such principal or interest.

(c) Any such pledge or assignment by the governor shall be valid and binding from the time it is made, and the lien of such pledge or assignment shall be enforceable and need not be perfected by delivery or any filing or further act. Such lien shall be valid against all parties having claims of any kind in tort, contract or otherwise, irrespective of whether such parties have notice of the lien of such pledge or assignment.


WVC 31 - 18 C- 8 §31-18C-8. Legality for investment; tax exemption.
(a) The bonds are hereby made securities in which all insurance companies and associations, and other persons carrying on an insurance business, all banks, bankers, trust companies, building and loan associations, savings and loan associations, investment companies and other persons carrying on a banking business, and other persons, except administrators, guardians, executors, trustees and fiduciaries, who are now or who may hereafter be authorized to invest in bonds or other obligations of the state, may properly and legally invest funds including capital in their control or belonging to them.

(b) The bonds and the income therefrom shall at all times be exempt from taxation.


WVC 31 - 18 C- 9 §31-18C-9. Listing by auditor; agent for registration.
All bonds issued under this article shall be separately listed by the auditor of the state in books provided for the purpose, in each case giving the date, number, character and amount of obligations issued, and in case of registered bonds, the name and post office address of the person, firm or corporation registered as the owner thereof, but the governor may, in his declaration with respect to such bonds, designate an agent within or without the state for the purpose of registration of transfer of such bonds.


WVC 31 - 18 C- 10 §31-18C-10. Veterans' loan payments used to pay bonds and interest; investment of remainder.
(a) There shall be paid into the general account in the veterans' mortgage fund all money from any and all loan payments made by veterans under the terms of the loans for the purpose of paying the interest on and principal of such bonds and from any other source whatsoever which is made liable by law or contract for the payment of the principal of such bonds or the interest thereon.

(b) Moneys from time to time in the general account in the fund in excess of the amount currently required for the payment of the due principal of, or interest on, the bonds, and the current expenses of the fund shall be invested by the state treasurer at the direction of the governor.


WVC 31 - 18 C- 11 §31-18C-11. Sale by governor; minimum price.
The governor shall sell the bonds herein authorized at such time or times as he may determine necessary to provide funds for the making or purchase of loans, as herein provided, and after consultation with the housing development fund regarding the status and requirements of the program and subject to the limitations contained in this article. All sales shall be at not less than at such price or prices as he shall determine to be in the best interest of the state.


WVC 31 - 18 C- 12 §31-18C-12. Auditor to be custodian of unsold bonds.
The state auditor shall be the custodian of all unsold bonds issued pursuant to the provisions of this article.


WVC 31 - 18 C- 13 §31-18C-13. Bond counsel and financial advisor.
The governor shall designate the bond counsel responsible for the issuance of a final approving opinion regarding the legality of the sale of such bonds and may at his discretion designate a financial advisor to the governor for the issuance and sale of such bonds.


WVC 31 - 18 C- 14 §31-18C-14. Approval and payment of all necessary expenses.
All necessary expenses, including legal expenses incurred in the execution of this article, to the extent such expenses are not otherwise paid out of the veterans' mortgage fund, shall be paid out of the general fund of the state on warrants of the auditor of the state drawn on the state treasurer.


WVC 31 - 18 C- 15 §31-18C-15. Administration of veterans' mortgage fund program by West Virginia housing development fund.
The program shall be administered by the West Virginia housing development fund.


WVC 31 - 18 C- 16 §31-18C-16. Powers and duties of housing development fund regarding veterans' mortgage fund.
The West Virginia housing development fund is hereby authorized and empowered:

(a) To make available the moneys from the veterans' mortgage fund for the making or purchase of loans in the name of and on behalf of the state;

(b) To make and execute contracts, including contracts for the purchase of bond or pool insurance, releases, compromises, compositions and other instruments necessary or convenient for the exercise of its powers, or to carry out its purposes under this article;

(c) To impose and collect reasonable fees and charges in connection with the making, purchase and servicing of loans, which fees and charges shall be limited to the amounts required to pay the expenses related to the administration of the program, including operating and administrative costs and any bond guaranty fees;

(d) To employ such agents and consultants as it deems advisable and to fix their compensation and prescribe their duties with respect to the program;

(e) To acquire, hold and dispose of personal and real property for its purposes under this article;

(f) To enter into agreements or other transactions with any federal or state agency, any lending institution or any other person, partnership, corporation, association or organization;

(g) To sell, at public or private sale, any loan or other negotiable instrument or obligation securing a loan made under the provisions of this article;

(h) To make loans or to purchase loans from lending institutions in the manner and under the terms and conditions prescribed by this article;

(i) To enter into agreements with lending institutions and other entities for advertising the program, for taking applications for loans, for originating loans in the name of the state or in the name of such lending institution, for supervising the execution of promissory notes, deeds of trust and other documents and agreements associated with the program, for accepting and transmitting loan payments and otherwise servicing loans, for the operation and administration of any other aspect of the program or to operate and administer any and all aspects of the program;

(j) To reimburse itself or to pay such lending institutions or other entities pursuant to any such agreements for any reasonable and necessary fees and expenses incurred in the operation and administration of the program; and

(k) To exchange loans for certificates issued by an entity approved by the governor for amounts and on terms and conditions acceptable to the governor.


WVC 31 - 18 C- 17 §31-18C-17. Terms and conditions of loans from veterans' mortgage fund.
No loans shall be made or acquired by the housing development fund except loans to veterans who meet reasonable criteria of creditworthiness as defined by the housing development fund and in accordance with the following terms and conditions, among other terms and conditions which the housing development fund shall require that:

(a) No loan shall be made unless an affidavit shall be executed by the veteran establishing his eligibility and submitted to the housing development fund together with evidence of his or her eligible status;

(b) The proceeds of all loans shall be used only for financing the purchase of residential dwellings by veterans;

(c) All loans shall be repaid in full over a term not to exceed thirty years plus a reasonable construction period in the case of a construction loan, and at a rate of interest determined by the housing development fund, which may set the interest rate to provide a margin over the rate paid on the bonds issued under this article. The difference between the interest rate on the loans and the interest rate on such bonds may be used in whole or in part to defray the expense of administering the program;

(d) The principal amount of each loan shall be limited to the appraised value of the residential dwelling;

(e) Each loan shall be evidenced by a negotiable promissory note executed and delivered by the veteran and shall be secured by a first lien deed of trust upon the residential dwelling financed by the proceeds of the loan, subject only to such exceptions as shall be acceptable to the housing development fund; and

(f) All notes and deeds of trust accepted as security for loans under this article shall be payable to the order of and for the use and benefit of the state.

The housing development fund is hereby empowered and authorized to propose and promulgate such rules and regulations as it determines are necessary or desirable in the administration of the program, including procedural, interpretive, legislative and emergency rules.


WVC 31 - 18 C- 18 §31-18C-18. Prohibition of funds inuring to the benefit of or being distributable to the directors or officers.
No part of the funds of the veterans' mortgage fund shall inure to the benefit of or be distributable to the directors or officers of the housing development fund or other private persons except that the housing development fund shall be authorized and empowered to pay reasonable compensation for services rendered, and to make loans as previously specified in furtherance of its purposes under this article: Provided, That no such loans shall be made to and no property shall be purchased or leased from, or sold, leased or otherwise disposed of to any director or officer of the housing development fund.


WVC 31 - 18 C- 19 §31-18C-19. Annual audit.
The housing development fund shall cause an annual audit to be made by an independent certified public accountant of the books, accounts and records of the program, and with respect to the receipts, disbursements, contracts, mortgages or deeds of trust, assignments, loans and all other matters relating to its operation of the program. The person, firm, association, partnership or corporation performing such audit shall furnish copies of the audit report to the treasurer, where such audit report shall be placed on file and made available for inspection by the general public.


WVC 31 - 18 D- ARTICLE 18D. WEST VIRGINIA AFFORDABLE HOUSING TRUST FUND.


WVC 31 - 18 D- 1 §31-18D-1. Short title.
This article may be known and cited as the "West Virginia Affordable Housing Trust Fund Act."


WVC 31 - 18 D- 2 §31-18D-2. Legislative finding and purpose.
The Legislature finds that current and past economic conditions in this state, changing federal housing policies which devolve responsibility for housing back to state government, declining resources at the federal level and changing demographics have resulted in low and moderate income persons, including elderly persons and persons with special needs, being unable to obtain safe, decent and affordable housing in this state. Lack of affordable housing affects the ability of communities to develop and maintain strong and stable economies and impairs the health, stability and self-esteem of individuals and families. The Legislature further finds that financing affordable housing, especially in rural areas and small communities, is becoming increasingly difficult and is often characterized by fragmented, uncoordinated, burdensome and expensive funding mechanisms. For these reasons, it is in the public interest to establish a new resource known as the West Virginia affordable housing trust fund to encourage stronger partnerships, collaboration and greater involvement of local communities in meeting housing needs in West Virginia. It is the intent of the Legislature that this trust fund assist in increasing the capacity of community housing organizations and encourage private sector businesses and individuals to contribute capital to community-based organizations and assist them in providing safe, decent and affordable housing to our citizens.


WVC 31 - 18 D- 3 §31-18D-3. Definitions.
(a) "Board" is the board of directors of the West Virginia affordable housing trust fund established pursuant to this article.

(b) "Housing" includes owner-occupied dwellings, rental units and other types of shelter for individuals and families.

(c) "Low or moderate income" means the income of individuals or families that is determined from time to time by the board as a percentage of the area median income for the state. The board may use the income data provided by the United States department of housing and urban development or other reliable income data as determined by a resolution of the board.

(d) "Technical assistance" means activities that are directly related to a nonprofit organization's ability to provide housing for low income persons and includes, but is not limited to, land use and planning costs, design and engineering services, loan packaging assistance, program development assistance and construction consultation.

(e) "Trust fund" means the West Virginia affordable housing trust fund established by this article.


WVC 31 - 18 D- 4 §31-18D-4. Affordable housing trust fund.
The West Virginia affordable housing trust fund is established as a governmental instrumentality of the state and public body corporate.


WVC 31 - 18 D- 5 §31-18D-5. Housing Trust Fund Board of Directors.
(a) The Affordable Housing Trust Fund has a Board of Directors, which consists of eleven voting members. The members of the Board are responsible for administering the Trust Fund.

(b) The Trust Fund Board of Directors consists of:

(1) The Secretary of the Department of Health and Human Resources, ex officio, or his or her designee;

(2) The Executive Director of the West Virginia Development Office, ex officio, or his or her designee;

(3) The Executive Director of the West Virginia Housing Development Fund, ex officio, or his or her designee;

(4) One member representative of the manufactured housing sales industry, with special consideration of three nominees submitted by the West Virginia Manufactured Housing Association;

(5) One member representative of the real estate development or real estate sales industry, with special consideration of three nominees submitted by the West Virginia Association of Realtors;

(6) One member who is an executive director or an officer of a local, community-based not-for-profit organization currently licensed to do business in West Virginia and which is exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, as amended, codified in 26 U.S.C. §501 (c)(3), and are organized and operated exclusively for charitable purposes within the meaning of that section, and in accordance with those purposes, provide housing assistance to low or moderate income citizens of this state;

(7) One member representative of the banking industry;

(8) One member who is an officer or member of a municipality or county commission, or his or her designee;

(9) One member who is an executive director of a public housing authority operating in a county or municipality in this state;

(10) One member who is an executive director or officer of a statewide not-for-profit organization which has as one of its primary missions the provision of housing assistance to low and moderate income citizens of this state, currently licensed to do business in West Virginia and is exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, as amended, codified in 26 U.S.C. §501 (c)(3), and is organized and operated exclusively for charitable purposes within the meaning of that section; and

(11) One member representative of the homebuilding industry, with special consideration of three nominees submitted by the Homebuilders Association of West Virginia.

(c) Not more than four of the members, excluding the ex officio members, may belong to the same political party. Except for midterm special appointments made to fill irregular vacancies on the Board, members shall be appointed for terms of three years each. Members are eligible for reappointment. However, no member may serve for more than two consecutive full terms. Except for midterm special appointments made to fill irregular vacancies on the Board, appointment terms shall begin on the first day of July of the beginning year. All appointment terms, special and regular, end on the thirtieth day of June of the final year of the term.

(d) All members of the Board except those who serve ex officio shall be appointed by the Governor, with the advice and consent of the Senate.

(e) The Governor may remove any appointed member in case of incompetency, neglect of duty, moral turpitude or malfeasance in office, and the Governor may declare the office vacant and fill the vacancy as provided in other cases of vacancy.

(f) The Board shall annually select its chairperson.

(g) The Board shall meet not less than four times during the fiscal year, and additional meetings may be held upon a call of the chairperson or of a majority of the members. Board members shall be reimbursed for sums necessary to carry out responsibilities of the Board and for reasonable travel expenses to attend Board meetings. The ex officio members may not be reimbursed by the Fund for travel expenses to attend Board meetings.

(h) Six members of the Board is a quorum. No vacancy in the membership of the Board impairs the right of a quorum to exercise all the rights and perform all the duties of the Board. Action may be taken by the affirmative vote of a majority of members present at a properly noticed and legally convened meeting of the Board.


WVC 31 - 18 D- 6 §31-18D-6. Powers and responsibilities of the Board.
(a) The Board shall manage and control the Affordable Housing Trust Fund. In order to carry out the day-to-day management and control of the Trust Fund and effectuate the purposes of this article, the Board may appoint an Executive Director and other staff. The Board shall fix the Executive Director's duties and compensation as well as that of other staff. The Executive Director and other staff serve at the will and pleasure of the Board. The Board may provide for staff payroll and employee benefits in the same manner as the West Virginia Housing Development Fund provides for its employees.

(b) The members of the Board and its officers are not liable personally, either jointly or severally, for any debt or obligation created by the Board.

(c) Members of the Board and its officers and employees shall be provided insurance coverage by the state's Risk and Insurance Management Board to the same extent and in the same manner the coverage is applicable to state government agencies and appointed state officials and employees. The Board may elect to obtain other forms of insurance coverage it considers reasonable for its operations.

(d) The acts of the Board are solely acts of its corporation and are not those of an agent of the state, nor is any debt or obligation of the Board a debt or obligation of the state.

(e) The Board shall:

(1) Develop and implement comprehensive policies and programs for the use of the Trust Fund that ensures the equitable distribution of moneys from the Trust Fund throughout the various geographic areas of this state and between urban and rural areas of this state;

(2) Develop and implement an application and selection system to identify housing sponsors or providers of affordable housing developments or programs that qualify to receive assistance from the Trust Fund for eligible activities;

(3) Provide funds for technical assistance to prospective applicants;

(4) Monitor services, developments, projects or programs receiving assistance from the Trust Fund to ensure that the developments are operated in a manner consistent with this article and in accordance with the representations made to the Trust Fund Board by the sponsors of the services, developments, projects or programs;

(5) Recommend legislation to further its mission of providing housing for low to moderate income citizens of this state;

(6) Provide funding to increase the capacity of nonprofit community housing organizations to serve their communities;

(7) Research and study housing needs and potential solutions to the substandard quality or lack of affordable housing;

(8) Coordinate programs with other entities when doing so fulfills its mission to provide housing to low to moderate income citizens of this state;

(9) Convene public meetings to gather information or receive public comments regarding housing policy or issues;

(10) Distribute available funds pursuant to policies established by it which may permit the establishment of a permanent endowment; and

(11) Serve as a clearinghouse for information regarding housing services and providers within this state.

(f) The West Virginia Housing Development Fund shall provide office space and staff support services for the Executive Director and the Board, shall act as fiscal agent for the Board and, as such, shall provide accounting services for the Board, invest all funds as directed by the Board, service all investment and loan activities of the Board as requested, and shall make the disbursements of all funds as directed by the Board, and establish best practices for recipient organizations, for which the West Virginia Housing Development Fund shall be reasonably compensated, as determined by the Board.


WVC 31 - 18 D- 7 §31-18D-7. Eligible activities; eligible organizations.
(a) The Board shall use the moneys from the Trust Fund to make, or participate in the making of, loans or grants for eligible activities that shall include, but not be limited to:

(1) Providing funds for new construction, rehabilitation, repair or acquisition of housing to assist low or moderate income citizens including land and land improvements;

(2) Providing matching funds for federal housing moneys requiring a local or state match;

(3) Providing funds for administrative costs for housing assistance programs or nonprofit organizations eligible for funding pursuant to subsection (b) of this section if the grants or loans provided will substantially increase the recipient's access to housing funds or increase its capacity to supply affordable housing;

(4) Providing loan guarantees and other financial mechanisms to facilitate the provision of housing products or services;

(5) Providing funds for down payments, closing costs, foreclosure prevention, home ownership counseling and security bonds which facilitate the construction, rehabilitation, repair or acquisition of housing by low to moderate income citizens;

(6) Providing risk underwriting products not provided by private sector entities to facilitate broader accessibility of citizens to other federal or state housing funds or loan programs. The products shall be established using professional risk underwriting standards and separate corporate vehicles may be created and capitalized by the Trust Fund to provide the products; and

(7) Providing start-up funds for initial operational expenses of local government programs to reduce substandard housing or inappropriate land use patterns.

(b) Organizations eligible for funding from the Trust Fund include the following: (1) Local governments; (2) local government housing authorities; (3) nonprofit organizations recognized as exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, as amended, codified in 26 U.S.C. §501 (c)(3), and which are organized and operated exclusively for charitable purposes within the meaning of that section, and in accordance with those purposes provide assistance to low or moderate income citizens of this state; and (4) regional or statewide housing assistance organizations that have been recognized as exempt under Section 501(c)(3) of the Internal Revenue Code, as amended, and which provide assistance to low and moderate income or low income citizens of this state.


WVC 31 - 18 D- 8 §31-18D-8. Corporate powers.
The board has the power:

(1) To make loans or grants;

(2) To accept appropriations, gifts, grants, bequests and devises and to utilize or dispose of the same to carry out its corporate purposes. The board has the discretion to refuse any gift it considers inappropriate;

(3) To make and execute contracts, releases, compromises, agreements and other instruments necessary or convenient for the exercise of its powers or to carry out its corporate purposes;

(4) To collect reasonable fees and charges in connection with making and servicing loans, notes, bonds, obligations, commitments and other evidences of indebtedness, and in connection with providing technical, consultative and project assistance services;

(5) To sue and be sued;

(6) To have a seal and alter the same at will;

(7) To hire its own employees and appoint officers and consultants as it considers advisable, and to fix their compensation and prescribe their duties;

(8) To acquire, hold and dispose of real and personal property for its corporate purposes;

(9) To enter into agreements or other transactions with any federal or state agency, any person and any domestic or foreign partnership, corporation, association or organization;

(10) To acquire real property, or an interest in real property, in its own name, by purchase, transfer, bequest, gift or foreclosure, where appropriate or is necessary to protect any loan in which the board has an interest and to sell, transfer and convey any property to a buyer and, in the event that a sale, transfer or conveyance cannot be effected with reasonable promptness or at a reasonable price, to lease property to a tenant. Before any real property is transferred to the trust, the seller or donor must have clear title to the property. The board has the discretion to require that the seller or donor agree, in the terms of the transfer, that any liability for environmental defects on the property is not waived by the transfer and that the seller or donor indemnify the trust for any liability associated with activities that occurred or conditions that exist on the property. The board may require the transferor of the property to bear the costs of an environmental assessment of the property, conducted in a manner satisfactory to the board;

(11) To purchase or sell, at public or private sale, any mortgage or other negotiable instrument or obligation securing a loan;

(12) To procure insurance against any loss in connection with its property in such amounts, and from such insurers, as may be necessary or desirable;

(13) To consent, whenever it considers it necessary or desirable in the fulfillment of its corporate purpose, to the modification of the rate of interest, time of payment or any installment of principal or interest or any other terms, of an investment, loan, contract or agreement of any kind to which the board is a party;

(14) To establish training and educational programs to further the purposes of this article;

(15) To acquire, by purchase or otherwise, and to hold, transfer, sell, assign, pool or syndicate or participate in the syndication of, any loans, notes, mortgages, securities or debt instruments or other instruments evidencing loans or equity interests in or for the fostering, repairing, or providing affordable housing to the citizens of this state;

(16) The board has the authority to make, and from time to time, amend and repeal bylaws and rules not inconsistent with the provisions of this article; and

(17) To have and exercise all other general powers of a corporation in this state.


WVC 31 - 18 D- 9 §31-18D-9. Applications and selection criteria.
(a) No moneys may be expended from the Trust Fund for projects that discriminate against any buyer or renter because of race, religion, sex, familial status or national origin.

(b) The Board shall forward to the West Virginia Housing Development Fund for its review and information approved requests, applications and proposals for funding containing information as is necessary to permit the West Virginia Housing Development Fund to carry out its duties under this article.


WVC 31 - 18 D- 10 §31-18D-10. Documentary materials concerning financial or personal information; confidentiality.
Any documentary material or data made or received by the board for the purpose of furnishing assistance, to the extent that the material or data consists of financial or personal information regarding the financial position or activities of a for-profit business or natural person, are not public records and are exempt from any disclosure pursuant to the provisions of chapter twenty-nine-b of this code. Any discussion or consideration of the financial or personal information may be held by the board in executive session closed to the public, notwithstanding the provisions of article nine-a, chapter six of this code.


WVC 31 - 18 D- 11 §31-18D-11. Conflicts.
In addition to any requirements imposed in article two, chapter six-b of this code, if the board receives an application, request for funding or proposal from any entity of which a member of the board, or an immediate family member of a board member, is also an officer, director, employee or owner of any entity which is a party to the proposed transaction, the board member shall:

(1) Disclose the relationship to the board, in writing;

(2) Refrain from participating in board discussions concerning the application, request for funding or proposal; and

(3) Refrain from voting the application, request for funding or proposal.


WVC 31 - 18 D- 12 §31-18D-12. Tax exemption.
The trust fund is not required to pay any taxes and assessments to the state of West Virginia, or any county, municipality or other governmental subdivision of the state of West Virginia, upon any of its property or upon its obligations or other evidences of indebtedness pursuant to the provisions of this article, or upon any moneys, funds, revenues or other income held or received by the trust fund and the income from it is exempt from taxation, except for death and gift taxes, taxes on transfers, sales taxes, real property taxes and business and occupation taxes.


WVC 31 - 18 D- 13 §31-18D-13. Annual report.
The board shall make a report to the governor and the Legislature within ninety days of the close of each fiscal year. The report shall include summaries of all meetings of the board, an analysis of the overall progress of the program, fiscal concerns, the relative impact the program is having on the state, and any suggestions and policy or legislative recommendations that the board may have. The report shall include: (1) The applications funded in the previous calendar year; (2) the identity of organizations receiving funds and significant private sector partners of each project or program; (3) the location of each project unless the disclosure would endanger occupants or unduly invade the privacy of occupants; (4) the amount, maturity, interest rate, collateral and other pertinent terms of funding provided to the project or program and the amount of other funds leveraged; (5) the number of units of housing created by the project and the occupancy rate; (6) the expected cost of rent or monthly payment for those units; and (7) the amount of revenue deposited into the West Virginia affordable housing trust fund. The report is public information and shall be made available to the general public for examination and copying.


WVC 31 - 18 D- 14 §31-18D-14. Exemption from certain requirements; audit.
(a) In order to provide the greatest flexibility to entities receiving funding from the trust fund, the proposals, applications and requests funded under this article are exempt from the bidding and public sale requirements, from the approval of contractual agreements by the department of administration or the attorney general and from the requirements of chapter five-a of this code.

(b) The trust fund's financial position, activities, transactions, documents and records are subject to an annual audit by an independent firm of certified public accountants.


WVC 31 - 18 D- 15 §31-18D-15. Dissolution or liquidation of trust fund.
In the event that the trust fund is dissolved or liquidated by the Legislature, after payment of all debts, obligations or expenses of the trust fund, all assets then remaining in the trust fund shall be distributed to the West Virginia housing development fund, a governmental instrumentality of the state of West Virginia created pursuant to section four, article eighteen of chapter thirty-one.


WVC 31 - 19 - ARTICLE 19. WEST VIRGINIA COMMUNITY INFRASTRUCTURE AUTHORITY.


WVC 31 - 19 - 1 §31-19-1. Short title.

This article shall be known as the "West Virginia Community Infrastructure Authority Act."


WVC 31 - 19 - 2 §31-19-2. Legislative findings and purposes.

(a) The Legislature hereby finds and declares that increasing requirements for essential public improvements and escalating costs of providing such improvements have created inordinate demands upon the financial resources of counties and municipalities necessitating legislation to enable counties and municipalities to attain a more competitive position in capital markets.

(b) The Legislature hereby finds and declares further that it is in the public interest and is the responsibility of the state of West Virginia to foster and promote by all lawful means the provision of adequate capital markets and facilities for borrowing money by counties and municipalities for the financing of public improvements and the fulfillment of public purposes, and to make it possible for counties and municipalities to obtain new or additional sources of capital funds at acceptable interest costs, including activities to encourage investor interest in the purchase of bonds or notes of counties or municipalities as sound and preferred securities for investments.

(c) The Legislature hereby finds and declares further that it is in the public interest and is the responsibility of the state of West Virginia to encourage counties and municipalities to continue their independent undertakings of public improvements and fulfillment of public purposes and the financing thereof and to improve or enhance the possibilities of counties and municipalities obtaining funds, to the extent possible, at reduced interest costs, for orderly financing of public improvements and fulfillment of public purposes, particularly those counties or municipalities not otherwise able to borrow for such purposes during periods of need.

(d) The Legislature hereby finds and declares further that it is in the public interest, in order to implement and aid in the discharge of the responsibilities of the aforesaid, that a state instrumentality be created as a public body corporate with full powers to borrow money and issue its bonds and notes to the end that funds obtained thereby may be used for the purchase by such state instrumentality of the bonds or notes of counties and municipalities or for the purposes of making loans to the counties or municipalities for community infrastructure projects, and that such state instrumentality be granted all powers necessary or appropriate to accomplish and to carry out the aforesaid public purposes and responsibilities of the state of West Virginia in a manner to make it possible for counties or municipalities to sell their bonds and borrow funds at as low an interest rate as said instrumentality finds and determines to be feasible.

(e) The Legislature further finds and declares that in accomplishing these purposes, the West Virginia community infrastructure authority, created and established by this article, will be acting in all respects for the benefit of the people of the state of West Virginia to serve the public purposes of improving and otherwise promoting their health, education, welfare, safety and prosperity, and that the West Virginia community infrastructure authority, so created and established, is hereby empowered to act on behalf of the state of West Virginia and its people in serving the aforesaid public purposes for the benefit of the general public of said state.


WVC 31 - 19 - 3 §31-19-3. Definitions.

As used in this article, unless the context clearly requires a different meaning:

(1) "Authority" means the West Virginia community infrastructure authority created in section four of this article, the duties, powers, responsibilities and functions of which are specified in this article.

(2) "Board" means the West Virginia community infrastructure authority board created in section four of this article, which shall manage and control the West Virginia community infrastructure authority.

(3) "Bond" or "community infrastructure revenue bond" means a revenue bond or note issued by the West Virginia community infrastructure authority to effect the intents and purposes of this article.

(4) "Community infrastructure project" or "project" means any project of a public nature which is considered a part of the infrastructure of a county or municipality, including, but not limited to, roads and other appurtenances to community or economic development, which are specifically declared to be for a public purpose.

(5) "Cost" means, as applied to community infrastructure projects, the cost of acquisition, repair, renovation and construction thereof; the cost of acquisition of all land, rights-of-way, property rights, easements, franchise rights, and interests required by the county or municipality for such acquisition, renovation, repair or construction; the cost of demolishing or removing any buildings or structures on land so acquired, including the cost of acquiring any lands to which buildings or structures may be moved; the cost of diverting highways, interchange of highways, access roads to private property, including the cost of land or easement therefor; the cost of all machinery, furnishing, and equipment; all finance charges, and interest prior to and during the construction and for no more than eighteen months after completion of construction; the cost of all legal services and expenses; the cost of all plans, specifications, surveys and estimates of cost; all working capital and other expenses necessary or incident to determining the feasibility or practicability of acquiring, renovating, repairing or constructing any such project; the financing of such acquisition, renovation, or repair or construction, including the amount authorized in the resolution of the authority providing for the issuance of community infrastructure revenue bonds to be paid into any special funds from the proceeds of such bonds; and the financing of the placing of any such project in operation, if necessary. Any obligations or expenses incurred after the effective date of this article by any county or municipality, with the approval of the authority, for surveys, borings, preparation of plans and specifications and other engineering services in connection with the acquisition, renovation, repair or construction of a project shall be regarded as a part of the cost of such project and shall be reimbursed out of the proceeds of grants, loans or community infrastructure revenue bonds as authorized by the provisions of this article.

(6) "Department" means the governor's office of community and industrial development.

(7) "Revenue" means any money or thing of value collected by, or paid to, the West Virginia community infrastructure authority in connection with any community infrastructure project or as principal of or interest, charges or other fees on loans, or any other collections on loans made by the West Virginia community infrastructure authority to counties or municipalities to finance in whole or in part the acquisition, renovation, repair or construction of any community infrastructure project or projects, or other money or property which is received and may be expended for or pledged as revenues pursuant to this article.


WVC 31 - 19 - 4 §31-19-4. West Virginia community infrastructure authority created; West Virginia community infrastructure board created; organization of authority and board; appointment of board members; their term of office, compensation and expenses; duties and responsibilities of director and staff of authority.

(a) There is hereby created the West Virginia community infrastructure authority. The authority is a governmental instrumentality of the state and a body corporate. The exercise by the authority of the powers conferred by this article and the carrying out of its purposes and duties are essential governmental functions and for a public purpose.

The authority shall be controlled, managed and operated by the five member board known as the West Virginia community infrastructure board, which is hereby created. The director of the West Virginia development office, or her or his designee, the director of the division of environmental protection, or her or his designee, and the commissioner of the division of highways, or her or his designee, are members ex officio of the board. The executive director of the West Virginia development office, or her or his designee, is the ex officio chair. Two members of the board shall be representative of the general public, one of which shall have had experience or a demonstrated interest in local government. The two members who are not ex officio members of the board shall be appointed by the governor, by and with the advice and consent of the Senate, for initial terms of three and six years, respectively. The successor of each such appointed member shall be appointed for a term of six years in the same manner as the original appointments were made, except that any person appointed to fill a vacancy occurring prior to the expiration of the term for which her or his predecessor was appointed shall be appointed only for the remainder of such term. Each board member shall serve until the appointment and qualification of her or his successor. The two appointed board members shall not at any one time belong to the same political party. Appointed board members may be reappointed to serve additional terms, not to exceed two consecutive full terms. All members of the board shall be citizens of the state. Each appointed member of the board, before entering upon her or his duties, shall comply with the requirements of article one, chapter six of this code and give bond in the sum of twenty thousand dollars in the manner provided in article two, chapter six of this code. The governor may remove any board member for cause as provided in article six, chapter six of this code.

Annually the board shall elect one of its appointed members as chair, and shall appoint a secretary-treasurer, who need not be a member of the board. Three members of the board is a quorum and the affirmative vote of three members is necessary for any action taken by vote of the board. No vacancy in the membership of the board impairs the rights of a quorum by such vote to exercise all the rights and perform all the duties of the board and the authority. The person appointed as secretary-treasurer, including a board member if she or he is so appointed, shall give bond in the sum of fifty thousand dollars in the manner provided in article two, chapter six of this code.

The executive director of the West Virginia development office or her or his designee, the director of the division of environmental protection or her or his designee, and the commissioner of the division of highways or her or his designee, shall not receive any compensation for serving as board members. Each of the two appointed board members of the board shall receive an annual salary of five thousand dollars, payable in monthly installments. Each of the five board members shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of her or his duties as a member of such board. All such expenses incurred by the board are payable solely from funds of the authority or from funds appropriated for such purpose by the Legislature and no liability or obligation shall be incurred by the authority beyond the extent for which moneys are available fromfunds of the authority or from such appropriations.

(b) There shall be a director of the authority appointed by the board who shall supervise and manage the community infrastructure authority, and the West Virginia development office shall serve as the staff for the authority. Except as otherwise provided in this section, the duties and responsibilities of the director and of the staff shall be established by the authority. At the board's discretion, it may provide for the position of general counsel, who shall be an employee of the authority, or for the appointment of special counsel. As the board deems necessary and desirable, it may at any time elect to change its decision on the employment or appointment of a counsel.

(c) The director, or her or his designee, may employ or appoint any staff members in addition to those provided by the West Virginia development office, including general or special counsel if the position is established by the board. The number of employees needed, the positions to be filled and their salaries or wages shall be determined by the director with the approval of the board, unless the board elects to not require its approval. At any time the board may elect to change its decision concerning approval of additional staff hiring and salaries.

(d) The board shall meet at least quarterly, and more often as it deems necessary. The director and any other staff member or members as the director deems expedient shall attend board meetings.


WVC 31 - 19 - 5 §31-19-5. Authority may finance community infrastructure projects; loans to or bond purchases from counties and municipalities shall be subject to terms of loan or bond purchase agreements.

To accomplish the public policies and purposes and to meet the responsibility of the state as set forth in this article, the West Virginia community infrastructure authority may make loans to counties and municipalities for the acquisition, renovation, repair or construction of community infrastructure projects by such counties and municipalities, and may issue community infrastructure revenue bonds of this state, payable solely from revenues, to pay the cost of, or finance, in whole or in part, by loans to counties and municipalities, such projects. A community infrastructure project shall not be undertaken unless it has been determined by the authority based upon information provided to it by the county or municipality or other agency charged by law with the responsibility of reporting to be consistent with any applicable requirements of law. Any resolution of the authority providing for making a loan or bond purchase pursuant to this article shall include a finding by the authority that such determinations have been made. A loan or bond purchase agreement shall be entered into between the authority and each county or municipality to which a loan is made or from which bonds are purchased for the acquisition, renovation, repair or construction of a community infrastructure project, which loan or bond purchase agreement shall include without limitation the following provisions:

(1) The cost of such project, the amount of the loan or bond purchase, the terms of repayment of such loan or bond purchase and the security therefor;

(2) The specific purposes for which the proceeds of the loan or bond purchase shall be expended, the procedures as to the disbursements of loan or bond purchase proceeds and the duties and obligations imposed upon the county or municipality in regard to the construction, renovation, repair or acquisition of the project;

(3) The agreement of the county or municipality to raise the funds for repayment, through levy, pursuant to an election pursuant to article one, chapter thirteen of this code; and

(4) The agreement of the county or the municipality to comply with all applicable laws, rules and regulations issued by the authority or other state, federal or local bodies in regard to the construction, repair, renovation or acquisition of the project.


WVC 31 - 19 - 6 §31-19-6. Powers, duties and responsibilities of the authority generally.

The West Virginia community infrastructure authority is hereby granted, has and may exercise all powers necessary or appropriate to carry out and effectuate its corporate purpose. The authority shall have the power and capacity to:

(1) Adopt, and from time to time, amend and repeal bylaws necessary and proper for the regulation of its affairs and the conduct of its business and rules and regulations to implement and make effective its powers and duties, such rules and regulations to be promulgated in accordance with the provisions of chapter twenty-nine-a of this code.

(2) Adopt an official seal.

(3) Maintain a principal office and, if necessary, regional suboffices at locations properly designated or provided.

(4) Sue and be sued in its own name and plead and be impleaded in its own name, particularly to enforce the obligations and covenants made under sections seven and eight of this article. Any actions against the authority shall be brought in the circuit court of Kanawha County, in which the principal office of the authority shall be located.

(5) Establish and operate a revolving loan fund for the purpose of making loans to counties and municipalities for the acquisition, renovation, repair or construction of community infrastructure projects by such counties or municipalities; purchase the bonds of counties and municipalities issued for the acquisition, renovation, repair or construction of community infrastructure projects by such county or municipality; and, in accordance with the provisions of chapter twenty-nine-a of this code, adopt rules and procedures for making such loans or purchasing such bonds.

(6) Issue community infrastructure revenue bonds and notes and community infrastructure revenue refunding bonds of the state, payable as provided in section seven of this article unless the bonds are refunded by refunding bonds, for the purpose of making loans to or bond purchases from counties or municipalities for one or more community infrastructure projects or parts thereof.

(7) Acquire by gift or purchase, hold or dispose of real and personal property in the exercise of its powers and performance of its duties as set forth in this article.

(8) Make and enter into all contracts and agreements and execute all instruments necessary or incidental to the performance of its duties and the execution of its powers.

(9) Receive and accept from any federal agency, subject to the approval of the governor, grants for or in aid of the construction, repair, renovation or acquisition of community infrastructure projects, and receive and accept aid or contributions from any source of money, property, labor or other things of value, to be held, used and applied only for the purposes for which such grants and contributions are made.

(10) Purchase property coverage and liability insurance for any community infrastructure project and for any offices of the authority, insurance protecting the authority and its officers and employees against liability, if any, or damage to property or injury to or death of persons arising from its operations and any other insurance the authority may agree to provide under any resolution authorizing the issuance of community infrastructure revenue bonds or in any trust agreement securing the same.

(11) Establish or increase reserves from moneys received or to be received by the authority to secure or pay the principal of and interest on bonds and notes issued by the authority pursuant to this article or other law.

(12) Receive and disburse the proceeds of such general obligation bonds of the state as may be allowed by law pursuant to any resolution or act of the Legislature.

(13) To the extent permitted under its contracts with the holders of bonds or notes of the authority, consent to modification of the rate of interest, time and payment of installment of principal or interest, security, or any other term of a bond or note, contract or agreement of any kind to which the authority isa party.

(14) Make grants to counties or municipalities for one or more community infrastructure projects or parts thereof.

(15) Provide consultation services to municipalities or counties in connection with the acquisition, renovation, repair or construction of any community infrastructure project.

(16) Establish and amend the criteria and qualifications for the making of any loan to or the purchasing of any bond from a county or municipality and the terms not inconsistent with this article of any loan or bond purchase agreement with any county or municipality.

(17) Do all acts necessary and proper to carry out the powers expressly granted to the authority in this article.


WVC 31 - 19 - 7 §31-19-7. Authority empowered to issue community infrastructure revenue bonds, renewal notes and refunding bonds; requirements and manner of such issuance.

The authority is hereby empowered to issue from time to time community infrastructure revenue bonds and notes of the state in such principal amounts as the authority deems necessary to make loans to or bond purchases from counties and municipalities for one or more community infrastructure projects.

The authority may, from time to time, issue renewal notes, issue bonds to pay such notes and whenever it deems refunding expedient, refund any bonds by the issuance of community infrastructure revenue refunding bonds by the state pursuant to the provisions of section sixteen of this article. Except as may otherwise be expressly provided in this article or by the authority, every issue of its bond or notes shall be obligations of the authority payable out of the revenues and reserves created for such purposes by the authority which are expressly pledged for such payment, without preference or priority of the first bonds issued, subject only to any agreements with the holders of particular bonds or notes pledging any particular revenues. Such pledge shall be valid and binding from the time the pledge is made and the revenues so pledged and thereafter received by the authority shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act and the lien of any such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the authority irrespective of whether such parties have notice thereof.

All such bonds and notes shall have and are hereby declared to have all the qualities of negotiable instruments.

The bonds and notes shall be authorized by resolution of the authority, shall bear such date and shall mature at such time, in case of any such note or any renewal thereof not exceeding five years from the date of issue of such original note, and in the case of any such bond not exceeding fifty years from the date of issue, as such resolution may provide. The bonds and notes shall bear interest at such rate or rates, including variable rates, be in such denominations, be in such form, either coupon or registered, carry such registration privileges, be payable in such medium of payment, in such place and be subject to such terms of redemption as the authority may authorize. The bonds and notes of the authority may be sold by the authority at public or private sale, at or not less than the price the authority determines. The bonds and notes shall be executed by the chairman of the authority who may use a facsimile signature. The official seal of the authority or a facsimile shall be affixed thereto or printed thereon and attested, manually or by facsimile signature by the secretary-treasurer of the authority, and any coupons attached thereto shall bear the signature or facsimile signature of the chairman of the authority. In case any officer whose signature, or a facsimile of whose signature appears on any bonds, notes or coupons ceases to be such officer before delivery of such bonds or notes, such signature or facsimile is nevertheless sufficient for all purposes the same as if he had remained in office until such delivery and in case the seal of the authority have been changed after a facsimile has been imprinted on such bonds or notes, such facsimile will continue to be sufficient for all purposes.

Any resolution authorizing any bonds or notes or any issue thereof may contain provisions (subject to such agreements with bondholders or noteholders as may then exist, which provisions shall be a part of the contract with the holders thereof) as to pledging all or any part of the revenues of the authority to secure the payment of the bonds or notes or of any issue thereof; the use and disposition of revenues of the authority; the setting aside of reserve funds, sinking funds or replacement and improvement funds and the regulation and disposition thereof; the crediting of the proceeds of the sale of bonds or notes to and among the funds referred to and provided for in the resolution authorizing the issuance of the bonds or notes; the use, lease, sale or other disposition of any assets of the authority; limitations on thepurpose to which the proceeds of sale of bonds or notes may be applied; notes issued in anticipation of the issuance of bonds; the agreement of authority to do all things necessary for the authorization, issuance and sale of such bonds in such amounts as may be necessary for the timely retirement of such notes; limitation on the issuance of additional bonds or notes; the terms upon which additional bonds or notes may be issued and secured; the refunding of outstanding bonds or notes; the procedure, if any, by which the terms of any contract with bondholders or noteholders may be amended or abrogated; the amount of bonds or notes the holders of which must consent thereof and the manner in which such consent may be given; limitations on the amount of moneys to be expended by the authority for operating, administrative or other expenses of the authority securing any bonds or notes by a trust agreement; and any other matter, of like or different character, which in any way affect the security or protection of the bonds or notes.

In the event that the sum of all reserves pledged to the payment of such bonds or notes shall be less than the minimum reserve requirements established in any resolution or resolutions authorizing the issuance of such bonds or notes, the chairman of the authority shall certify, on or before the first day of December of each year, the amount of such deficiency to the governor of the state for inclusion, if the governor shall so elect, of the amount of such deficiency in the budget to be submitted to the next session of the Legislature for appropriation to the authority to be pledged for payment of such bonds or notes: Provided, That the Legislature shall not be required to make any appropriations so requested, and the amount of such deficiencies shall not constitute a debt or liability of the state.

Neither the members of the authority nor any person executing the bonds or notes shall be liable personally on the bonds or notes or be subject to any personal liability or accountability by reason of the issuance thereof.


WVC 31 - 19 - 8 §31-19-8. Trustee for bondholders; contents of trust agreement.

Any community infrastructure revenue bonds or notes or community infrastructure revenue refunding bonds issued by the authority under this article may be secured by a trust agreement between the authority and a corporate trustee, which trustee may be any trust company or banking institution having the powers of a trust company within or without this state. The authority shall promulgate rules and regulations pursuant to article three, chapter twenty-nine-a of this code establishing the method of choosing any such trustee which shall be done by a public competitive bidding procedure.

The authority shall, in all instances, seek to achieve the highest possible rating for any community infrastructure revenue bonds or notes or community infrastructure revenue refunding bonds or notes.

Any such trust agreement may pledge or assign revenues of the authority to be received. Any such trust agreement or any resolution providing for the issuance of such bonds or notes may contain such provisions for protecting and enforcing the rights and remedies of the bondholders or noteholders as are reasonable and proper and not in violation of law, including the provisions contained in section seven of this article and covenants setting forth the duties of the authority in relation to provisions regarding the payment of the principal of and interest, charges and fees on loans made to, or bond purchases from, counties and municipalities from the proceeds of such bonds or notes, the custody, safeguarding and application of all moneys. Any banking institution or trust company incorporated under the laws of this state which may act as depository of the proceeds of bonds or notes or of revenues shall furnish such indemnifying bonds or pledge such securities as are required by the authority. Any such trust agreement may set forth the rights and remedies of the bondholders and noteholders and of the trustee and may restrict individual rights of action by bondholders and noteholders as customarily provided in trust agreement or trust indentures securing similar bonds. Such trust agreement may contain such other provisions as the authority deems reasonable and proper for the security of the bondholders or noteholders. All expenses incurred in carrying out the provisions of any such trust agreement may be treated as part of the cost of the construction, renovation, repair or acquisition of a community infrastructure project.


WVC 31 - 19 - 9 §31-19-9. Legal remedies of bondholders and trustees.

Any holder of community infrastructure revenue bonds issued pursuant to this article or any of the coupons appertaining thereto and the trustee under any trust agreement, except the extent the rights given by this article may be restricted by the applicable resolution or such trust agreement, may by civil action, mandamus or other proceedings protect and enforce any rights granted under the laws of the state or granted under this article by the trust agreement or by the resolution in the issuance of such bonds, and may enforce and compel the performance or all duties required by this article, pursuant to the trust agreement or resolution, to be performed by the authority or any officer thereof.


WVC 31 - 19 - 10 §31-19-10. Bonds and notes not debt of state, county, or municipality; expenses incurred pursuant to article.

Community infrastructure revenue bonds and notes and community infrastructure revenue refunding bonds issued pursuant to this article and any coupons in connection therewith shall not constitute a debt or a pledge of the faith and credit or taxing power of this state or of any county or municipality of the state and the holders or owners thereof shall have no right to have taxes levied by the Legislature or taxing authority of any county or municipality for the payment of the principal thereof or interest thereon, but such bonds and notes shall be payable solely from the revenues and funds pledged for their payment as authorized by this article unless the notes are issued in anticipation of the issuance of bonds or the bonds are refunded by refunding bonds issued pursuant to this article which bonds or refunding bonds shall be payable solely from revenues and funds pledged for their payment as authorized by this article. All such bonds and notes shall contain on the face thereof a statement to the effect that the bonds or notes, as to both principal and interest, are not debts of the state or any county or municipality thereof, but are payable solely from revenues and funds pledged for their payment.

All expenses incurred in the carrying out of the provisions of this article shall be payable solely from funds provided under the authority of this article. Such article does not authorize the authority to incur indebtedness or liability on behalf of or payable by the state or any county or municipality thereof.


WVC 31 - 19 - 11 §31-19-11. Use of funds by authority; restrictions thereon.

All moneys, properties and assets acquired by the authority whether as proceeds from the sale of community infrastructure revenue bonds or as revenues or otherwise, shall be held by it in trust for the purposes of carrying out its powers and duties, and shall be used and reused in accordance with the purposes and provisions of this article. Such moneys shall at no time be commingled with other public funds. Such moneys, except as otherwise provided in any resolution authorizing the issuance of community infrastructure revenue bonds or in any trust agreement securing the same, or except when invested pursuant to section twelve of this article, shall be kept in appropriate depositories and secured as provided and required by law. The resolution authorizing the issuance of such bonds of any issue or of the trust agreement securing such bonds shall provide that any officer to whom, or any banking institution or trust company to which, such moneys are paid shall act as trustee of such moneys and hold and apply them for the purposes hereof, subject to the conditions this article and such resolution or trust agreement provide.


WVC 31 - 19 - 12 §31-19-12. Investment of funds by authority.

Except as otherwise provided in any resolution authorizing the issuance of community infrastructure revenue bonds or in any trust agreement securing the same, the authority is hereby authorized and empowered to invest any funds not needed for immediate disbursement in any of the following securities:

(1) Direct obligations of or obligations guaranteed by the United States of America;

(2) Bonds, debentures, notes or other evidences of indebtedness issued by any of the following agencies: Banks for cooperatives; federal intermediate credit banks; federal home loan bank system; Export-Import Bank of the United States; federal land banks; The Federal National Mortgage Association or the Government National Mortgage Association;

(3) Public housing bonds issued by the public agencies or municipalities and fully secured as to the payment of both principal and interest by a pledge of annual contributions under an annual contributions contract or contracts with United States of America; or temporary notes issued by public agencies or municipalities or preliminary loan notes issued by public agencies or municipalities, in each case, fully secured as to the payment of both principal and interest by a requisition or payment agreement with United States of America;

(4) Certificates of deposit secured by obligations of the United States of America;

(5) Direct obligations of or obligations guaranteed by the state of West Virginia;

(6) Direct and general obligations of any other state within the territorial United States, to the payment of the principal of and interest of which the full faith and credit of such state is pledged: Provided, That at the time of their purchase, such obligations are rated in either of the two highest rating categories by nationally recognized bond-rating agencies; and

(7) Any fixed interest bond, note or debenture of any corporation organized and operating with the United States: Provided, That such corporation shall have a minimum net worth of fifteen million dollars and its securities or its parent corporation's securities are listed on one or more of the national stock exchanges: Provided, however, That (i) such corporation has earned a profit in eight of the preceding ten fiscal years as reflected in its statements, (ii) such corporation has not defaulted in the payment of principal or interest on any of its outstanding funded indebtedness during its preceding ten fiscal years, and (iii) the bonds, notes or debentures of such corporation to be purchased are rated "AA" or the equivalent thereof or better than "AA" or the equivalent thereof by at least two or more nationally recognized rating services such as Standard and Poor's, Dun & Bradstreet or Moody's.


WVC 31 - 19 - 13 §31-19-13. Reports by authority to governor and Legislature.

As soon as possible after the close of each fiscal year, the authority shall make an annual report of its activities for the preceding fiscal year to the governor and the Legislature. Each such report shall set forth a complete operating and financial statement covering the authority's operations during the preceding fiscal year. The authority shall cause an audit of its books and accounts to be made at least once each fiscal year by certified public accountants.

The cost of such audit shall be treated as a part of the cost of operation of the authority.


WVC 31 - 19 - 14 §31-19-14. Community infrastructure bonds lawful investments.

The provisions of sections nine and ten, article six, chapter twelve of this code to the contrary notwithstanding all community infrastructure revenue bonds issued pursuant to this article shall be lawful investments for the West Virginia state board of investments and shall also be lawful investments for banking institutions, societies for savings, building and loan associations, savings and loan associations, deposit guarantee associations, trust companies, insurance companies, including domestic for life and domestic not for life insurance companies.


WVC 31 - 19 - 15 §31-19-15. Purchase and cancellation of notes or bonds.

The authority, subject to such agreements with noteholders or bondholders as may then exist, shall have power, out of any funds available therefor, to purchase notes or bonds of the authority.

If the notes or bonds are then redeemable, the price of such purchase shall not exceed the redemption price then applicable plus accrued interest to the next interest payment date thereon. If the notes or bonds are not then redeemable, the price of such purchase shall not exceed the redemption price applicable on the first day after such purchase upon which the notes or bonds become subject to redemption plus accrued interest to such date. Upon such purchase such notes or bonds shall be cancelled.


WVC 31 - 19 - 16 §31-19-16. Refunding bonds.

Any bonds issued hereunder and at any time outstanding may at any time and from time to time be refunded by the authority by the issuance of its refunding bonds in such amount as it may deem necessary to refund the principal of the bonds so to be refunded, together with any unpaid interest thereon; to provide additional funds for the purpose of the authority; and any premiums and commissions necessary to be paid in connection therewith. Any such refunding may be effected whether the bonds to be refunded shall have then matured or shall thereafter mature, either by sale of the refunding bonds and the application of the proceeds thereof for the redemption of the bonds for the bonds to be refunded thereby: Provided, That the holders of any bonds so to be refunded shall not be compelled without their consent to surrender their bonds for payment or exchange prior to the date on which they are payable or, if they are called for redemption, prior to the date on which they are by their terms subject to redemption. Any refunding bonds issued pursuant to this article shall be payable from the revenues out of which the bonds to be refunded thereby were payable, or from other moneys or the principal of and interest on or other investment yield from, investments or proceeds of bonds or other applicable funds or moneys, including investments of proceeds of any refunding bonds, and shall be subject to the provisions contained in section seven of this article and shall be secured in accordance with the provisions of sections seven and eight of this article.


WVC 31 - 19 - 17 §31-19-17. Exemption from taxation.

The exercise of the powers granted to the authority by this article will be in all respects for the benefit of the people of the state, for the improvement of their health, safety, convenience and welfare and for the enhancement of their residential, agricultural, recreational, economic, commercial and industrial opportunities and is a public purpose. As the construction, acquisition, repair or renovation of community infrastructure projects will constitute the performance of essential governmental functions, the authority shall not be required to pay any taxes or assessments upon any community infrastructure project or upon any property acquired or used by the authority or upon the income therefrom. Such bonds and notes and all interests and income thereon shall be exempt from all taxation by this state, or any county, municipality, political subdivision or agency thereof, except inheritance taxes.


WVC 31 - 19 - 18 §31-19-18. Financial interests in contracts prohibited; penalty.

No officer, member or employee of the authority shall be financially interested, directly or indirectly, in any contract of any person with the authority, or in the sale of any property, real or personal, to or from the authority. This section does not apply to contracts or purchases of property, real or personal, between the authority and any governmental agency. If any officer, member or employee of the authority has such financial interests in the contract or sale of property prohibited hereby, he shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one thousand dollars or imprisoned in the county jail not more than one year, or both fined and imprisoned.


WVC 31 - 19 - 19 §31-19-19. Meetings and records of authority to be kept public.

All meetings of the authority shall be open to the public and the records of the authority shall be open to public inspection at all reasonable times, except as otherwise provided in this section. All final actions of the authority shall be journalized and such journals shall also be open to the inspection of the public at all reasonable times. Any records or information relating to secret processes or secret methods of manufacture or production which may be obtained by the authority or other persons acting under authority of this article are confidential and shall not be disclosed.


WVC 31 - 19 - 20 §31-19-20. Liberal construction of article.

The provisions of this article are hereby declared to be remedial and shall be liberally construed to effectuate its purposes and intents.


WVC 31 - 19 - 21 §31-19-21. Severability.

If any section, part or provision of this article or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect any other section, part or provision of this article or its application and to this end the provisions of this article are declared to be severable.


WVC 31 - 20 - ARTICLE 20. WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY.


WVC 31 - 20 - 1 §31-20-1. Short title.

This article shall be known and may be cited as "The West Virginia Regional Jail and Correctional Facility Authority Act."


WVC 31-20-1A §31-20-1a. Legislative findings and purposes.
(a) The Legislature finds as follows:

(1) That some existing jails, adult correctional facilities and juvenile detention and correctional facilities in this state serve neither the best interests of the incarcerated populations of the jails and facilities nor the citizens of West Virginia;

(2) That due to time constraints established and imposed by judicial decisions, it is imperative that the Legislature give immediate and diligent attention to the improvement of existing facilities and the construction and maintenance of new facilities, as well as to the development and implementation of new, innovative and effective programs dealing with incarcerated persons;

(3) That the physical condition of some existing jails, adult correctional facilities and juvenile facilities contribute to a frustration of efforts to provide rehabilitation, education, vocational training, and social and psychological adjustment and improvement for incarcerated persons, with the result that those existing facilities are utilized largely for the limited purposes of confinement;

(4) That there is a need to examine, understand and implement various new and innovative trends which are being advanced in the area of correctional institution design, and to explore the developing alternatives to incarceration which are being experimented with in other jurisdictions; and

(5) That the revenues of this state, insofar as they are currently used to maintain a traditional penal system, are not efficiently utilized to provide facilities or produce programs which could direct an adult or juvenile inmate's or detainee's time and effort to prepare him or her for life outside of confinement; nor do the revenues provide corrections officials with the resources necessary to address the issues and problems with which they are confronted.

(b) The purposes of this article are as follows:

(1) To provide a cost-efficient system within this state for the construction, maintenance and operation of adult jails and correctional facilities;

(2) To develop and implement plans for the renovation and improvement of existing facilities and the design and construction of new facilities to better serve the incarcerated and detained juvenile and adult populations and the citizens of this state;

(3) To provide an environment in which new and innovative corrections programs may be considered and undertaken, and in which opportunities may be offered to incarcerated persons to overcome personal deficiencies which are educational, vocational, social or psychological in nature; and

(4) To investigate the feasibility of individualizing and classifying adult inmates according to their psychological and physical conditions at the time they are incarcerated, and the feasibility of designing for each such inmate a plan for self-improvement and rehabilitation.


WVC 31 - 20 - 2 §31-20-2. Definitions.
Unless the context indicates clearly otherwise, as used in this article:

(a) "Adjacent regional juvenile detention facility" means a facility constructed or maintained on property owned or controlled by the regional jail authority and designed (1) for the short term preadjudicatory detention of juveniles, for the confinement of juveniles who are awaiting transportation to or placement at another juvenile detention facility or juvenile correctional facility or who are awaiting trial as an adult pursuant to section ten, article five, chapter forty-nine of this code; or (2) for the court-ordered, short term placement of juveniles in a facility that is characterized by programmatic intervention and by staff restrictions of the movements and activities of juveniles placed there, that limits the juveniles' access to the surrounding community and that is not characterized by construction fixtures designed to physically restrict the movements and activities of juveniles.

(b) "Authority" or "West Virginia Regional Jail Authority" means the West Virginia regional jail and correctional facility authority created by this article.

(c) "Board" means the governing body of the authority.

(d) "Bonds" means bonds of the authority issued under this article.

(e) "Cost of construction or renovation of a local jail facility, regional jail facility or juvenile facility" means the cost of all lands, water areas, property rights and easements, financing charges, interest prior to and during construction and for a period not exceeding six months following the completion of construction, equipment, engineering and legal services, plans, specifications and surveys, estimates of costs and other expenses necessary or incidental to determining the feasibility or practicability of any project, together with any other expenses necessary or incidental to the financing and the construction or renovation of the facilities and the placing of the facilities in operation.

(f) "County" means any county of this state.

(g) "Federal agency" means the United States of America and any department, corporation, agency or instrumentality created, designated or established by the United States of America.

(h) "Fund" or "funds" means a regional jail and correctional facility authority fund provided in section ten of this article, including those accounts that may be established by the authority for accurate accounting of the expenditure of public funds by that agency.

(i) "Government" means state and federal government, and any political subdivision, agency or instrumentality of the state or federal government, corporate or otherwise.

(j) "Inmate" means any adult person properly committed to a local or regional jail facility or a correctional facility.

(k) "Local jail facility" means any county facility for the confinement, custody, supervision or control of adult persons convicted of misdemeanors, awaiting trial or awaiting transportation to a state correctional facility.

(l) "Municipality" means any city, town or village in this state.

(m) "Notes" means any notes as defined in section one hundred four, article three, chapter forty-six of this code issued under this article by the authority.

(n) "Correctional facility" means any correctional facility, penitentiary or other correctional institution operated by the division of corrections for the incarceration of adults.

(o) "Regional jail facility" or "regional jail" means any facility operated by the authority and used jointly by two or more counties for the confinement, custody, supervision or control of adult persons convicted of misdemeanors or awaiting trial or awaiting transportation to a state correctional facility.

(p) "Revenues" means all fees, charges, moneys, profits, payments of principal of, or interest on, loans and other investments, grants, contributions and all other income received by the authority.

(q) "Security interest" means an interest in the loan portfolio of the authority which is secured by an underlying loan or loans and is evidenced by a note issued by the authority.

(r) "Work farm" has the same meaning as that term is used in section twelve, article eight, chapter seven of this code authorizing work farms for individual counties.

(s) "Juvenile detention facility" or "juvenile detention center" means a facility operated by the division of juvenile services (1) for the short term preadjudicatory detention of juveniles, for the confinement of juveniles who are awaiting transportation to or placement at another juvenile detention facility or juvenile correctional facility or who are awaiting trial as an adult pursuant to section ten, article five, chapter forty-nine of this code; or (2) for the court-ordered, short term placement of juveniles in a facility that is characterized by programmatic intervention and by staff restrictions of the movements and activities of juveniles placed there, that limits the juveniles' access to the surrounding community and that is not characterized by construction fixtures designed to physically restrict the movements and activities of juveniles.

(t) "Juvenile correctional facility" means a facility operated by the division of juvenile services (1) for the postdispositional confinement of juveniles adjudicated of offenses that would be criminal offenses if committed by an adult; or (2) for the court-ordered placement of juveniles in a facility that is characterized by programmatic intervention and by staff restrictions of the movements and activities of juveniles placed there, that limits the juveniles' access to the surrounding community and that is not characterized by construction fixtures designed to physically restrict the movements and activities of juveniles.

(u) "Juvenile facility" means an adjacent regional juvenile detention facility, a juvenile detention facility, a juvenile detention center or a juvenile correctional facility.


WVC 31 - 20 - 3 §31-20-3. West Virginia regional jail and correctional facility authority; composition; appointment; terms; compensation and expenses.
There is hereby created the West Virginia regional jail and correctional facility authority which shall be a body corporate and a government instrumentality. Wherever in this chapter and elsewhere in law reference is made to the West Virginia regional jail and prison authority, that reference means the West Virginia regional jail and correctional facility authority.

The authority shall be governed by a board of nine members, seven of whom are entitled to vote on matters coming before the authority. The complete governing board shall consist of the commissioner of the division of corrections; the director of the division of juvenile services; the secretary of the department of military affairs and public safety; the secretary of the department of administration, or his or her designated representative; three county officials appointed by the governor, no more than two of which may be of the same political party; and two citizens appointed by the governor to represent the areas of law and medicine. The commissioner of the division of corrections and the director of the division of juvenile services shall serve in an advisory capacity and are not entitled to vote on matters coming before the authority. Members of the Legislature are not eligible to serve on the board.

The governor shall nominate and, by and with the advice and consent of the Senate, appoint the five appointed members of the authority for staggered terms of four years beginning the first day of July, one thousand nine hundred eighty-nine. Of the members of the board first appointed, one shall be appointed for a term ending the thirtieth day of June, one thousand nine hundred ninety-one, two shall be appointed for terms ending the thirtieth day of June, one thousand nine hundred ninety-two, and two shall be appointed for terms ending the thirtieth day of June, one thousand nine hundred ninety-three. As these original appointments expire, each subsequent appointment shall be for a full four-year term.

Any appointed member whose term has expired shall serve until his or her successor has been duly appointed and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired term. Any appointed member is eligible for reappointment. Members of the authority are not entitled to compensation for services performed as members but are entitled to reimbursement for all reasonable and necessary expenses actually incurred in the performance of their duties.

All members of the board of the authority shall execute an official bond in a penalty of ten thousand dollars, conditioned as required by law. Premiums on the bond shall be paid from funds accruing to the authority. The bond shall be approved as to form by the attorney general and as to sufficiency by the governor and, when fully executed and approved, shall be filed in the office of the secretary of state.


WVC 31 - 20 - 4 §31-20-4. Governing body; organization and meetings; quorum; administrative expenses.
(a) The governing body of the authority shall consist of the voting members of the board as provided for in section three of this article and shall exercise all the powers given to the authority in this article. On the second Monday of July of each odd-numbered year, the board shall meet to elect a chairman and a secretary from among its own members. The secretary of the department of administration or his or her designated representative shall serve as treasurer of the board. The board shall otherwise meet quarterly, unless a special meeting is called by its chairman.

(b) A majority of the members of the board constitute a quorum, and a quorum must be present for the board to conduct business. Unless the bylaws require a larger number, action may be taken by majority vote of the members present.

(c) The board shall prescribe, amend and repeal bylaws and rules governing the manner in which the business of the authority is conducted and shall review and approve the budget prepared by the executive director annually.

(d) On or before the first day of April, two thousand, the West Virginia regional jail and correctional facility authority board shall, with the advice and consent of the Senate, appoint an executive director to act as its chief executive officer, to serve at the will and pleasure of the board. The compensation of the director shall be at the same rate as the commissioner of corrections. The appointment shall be for a term of five years to begin on the first day of April, two thousand. The executive director may employ any other personnel he or she determines necessary and may appoint counsel and legal staff for the authority and retain any temporary engineering, financial and other consultants or technicians that are required for any special study or survey consistent with the provisions of this article. The executive director may engage in negotiations and carry out plans to implement the provisions of this article and exercise those powers listed in section five of this article on behalf of the authority. The executive director shall prepare annually a budget to be submitted to the board for its review and approval.

(e) All costs incidental to the administration of the authority, including office expense, personal services expense and current expense, shall be paid from the regional jail and correctional facility development fund in accordance with guidelines issued by the board of the authority.


WVC 31-20-5 §31-20-5. Powers and duties of the authority; bidding procedures.
Public hearings pursuant to this section shall be held by the authority in convenient locations for public comment on the establishment of regional jails. The authority shall cause to be published at least two weeks in advance of a hearing a Class II-0 legal advertisement, as provided in section two, article three, chapter fifty-nine of this code, setting forth the reason for the hearing and the time, place and date thereof. The publication area shall be each county which may be included in a region for the purposes of a regional jail with the county in which the public hearing is held.

In addition to the hearing requirements above, before beginning construction of a new facility for use as a regional jail or correctional facility or before beginning renovation or acquisition of an existing facility for use as a regional jail facility, which existing facility is not already a jail, correctional facility or secure facility for the detention of juveniles or persons otherwise involuntarily committed or confined, the authority shall hold a hearing for comment by all members of the public on all aspects relating to the advisability of the use of the site for that regional jail facility. The authority shall promulgate legislative rules pursuant to chapter twenty-nine-a of this code for the requirements for notice and other procedures of said public hearings, which requirements shall be as similar as practicable to those hearings conducted regarding the construction of bridges by the West Virginia department of highways.

The authority, as a public corporation and governmental instrumentality exercising public powers of the state, may exercise all powers necessary or appropriate to carry out the purposes of this article, including, but not limited to, the power:

(a) To acquire, own, hold and dispose of property, real and personal, tangible and intangible.

(b) To lease property, whether as a lessee or lessor.

(c) To mortgage or otherwise grant security interests in its property.

(d) To conduct examinations and investigations and to hear testimony and take proof, under oath or affirmation at public or private hearings, on any matter relevant to this article and necessary for information on the construction or renovation of any adult correctional facility or juvenile facility or the establishment of any correctional facility industries project.

(e) To issue subpoenas requiring the attendance of witnesses and the production of books and papers relevant to any hearing before the authority or one or more members appointed by it to conduct any hearing.

(f) To apply to the circuit court having venue of the offense to have punished for contempt any witness who refuses to obey a subpoena, refuses to be sworn or affirmed, or refuses to testify, or who commits any contempt after being summoned to appear.

(g) To sue and be sued, implead and be impleaded, and complain and defend in any court.

(h) To adopt, use and alter at will a corporate seal.

(i) To make rules for the management and regulation of its affairs pursuant to article three, chapter twenty-nine-a of this code.

(j) To appoint officers, agents and employees.

(k) To make contracts of every kind and nature and to execute all instruments necessary or convenient for carrying on its business, including contracts with any other governmental agency of this state or of the federal government or with any person, individual, partnership or corporation to effect any or all of the purposes of this article.

(l) Without in any way limiting any other subdivision of this section, to accept grants from and enter into contracts and other transactions with any federal agency.

(m) To borrow money and to issue its negotiable bonds, security interests or notes and to provide for and secure the payment thereof, and to provide for the rights of the holders thereof, and to purchase, hold and dispose of any of its bonds, security interests or notes: Provided, That no bond or other obligation may be issued or incurred unless and until the Legislature by concurrent resolution has approved the purpose and amount of each project for which proceeds from the issuance of the bond or other obligation will be used.

(n) To sell, at public or private sale, any bond or other negotiable instrument, security interest or obligation of the authority in a manner and upon terms that the authority considers would best serve the purposes of this article.

(o) To issue its bonds, security interests and notes payable solely from the revenues or other funds available to the authority therefor; and the authority may issue its bonds, security interests or notes in such principal amounts as it considers necessary to provide funds for any purposes under this article, including:

(1) The payment, funding or refunding of the principal of, interest on or redemption premiums on, any bonds, security interests or notes issued by it whether the bonds, security interests, notes or interest to be funded or refunded have or have not become due.

(2) The establishment or increase of reserves to secure or to pay bonds, security interests, notes or the interest thereon and all other costs or expenses of the authority incident to and necessary or convenient to carry out its corporate purposes and powers. Any bonds, security interests or notes may be additionally secured by a pledge of any revenues, funds, assets or moneys of the authority from any source whatsoever.

(p) To issue renewal notes or security interests, to issue bonds to pay notes or security interests and, whenever it considers refunding expedient, to refund any bonds by the issuance of new bonds, whether the bonds to be refunded have or have not matured except that no renewal notes shall be issued to mature more than ten years from date of issuance of the notes renewed and no refunding bonds may be issued to mature more than twenty-five years from the date of issuance.

(q) To apply the proceeds from the sale of renewal notes, security interests or refunding bonds to the purchase, redemption or payment of the notes, security interests or bonds to be refunded.

(r) To accept gifts or grants of property, funds, security interests, money, materials, labor, supplies or services from the United States of America or from any governmental unit or any person, firm or corporation, and to carry out the terms or provisions of, or make agreements with respect to, or pledge, any gifts or grants, and to do any and all things necessary, useful, desirable or convenient in connection with the procuring, acceptance or disposition of gifts or grants.

(s) To the extent permitted under its contracts with the holders of bonds, security interests or notes of the authority, to consent to any modification of the rate of interest, time of payment of any installment of principal or interest, security or any other term of any bond, security interest, note or contract or agreement of any kind to which the authority is a party.

(t) To sell security interests in the loan portfolio of the authority. The security interests shall be evidenced by instruments issued by the authority. Proceeds from the sale of security interests may be issued in the same manner and for the same purposes as bond and note revenues.

(u) To propose legislative rules for promulgation, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement and make effective the powers, duties and responsibilities invested in the authority by the provisions of this article and otherwise by law.

(v) To assume the responsibility for operation and management of regional jail facilities under the jurisdiction of the state regional jail and correctional facility authority. The authority shall provide for the transportation of inmates between the regional jails and local holding facilities for court appearances.

(w) To exercise all power and authority provided in this article necessary and convenient to plan, finance, construct, renovate, maintain and operate or oversee the operation of regional jails and correctional facilities.

(x) To exercise all power and authority provided in this article necessary and convenient to plan, finance, construct, renovate, repair and replace juvenile detention facilities and juvenile correctional facilities.

(y) To cooperate with the commission for distribution of surplus foods and to authorize the executive director to exercise all power and authority provided in this section necessary to implement the pilot program for delivery of leftover prepared foods at the regional jail located in Marshall County, pursuant to section seventeen, article two, chapter eighteen of this code.


WVC 31 - 20 - 5 A §31-20-5a. Bidding procedures.

When the cost under any contract or agreement entered into by the authority other than compensation for personal services involves an expenditure of more than two thousand dollars, the authority shall make a written contract with the lowest responsible bidder after public notice published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, the publication area for such publication to be the county or counties wherein the work is to be performed or which is affected by the contract, which notice shall state the general character of the work and general character of the materials to be furnished, the place where plans and specifications therefor may be examined and the time and place of receiving bids, but a contract for lease of a correctional facility or regional or county jail project constructed and owned by the authority is not subject to the foregoing requirements and the authority may enter into such contract for lease pursuant to negotiation upon such terms and conditions and for such period as it finds to be reasonable and proper under the circumstances and in the best interests of proper operation or efficient acquisition or construction of such projects. The authority may reject any and all bids. A bond with good and sufficient surety, approved by the authority, shall be required of all contractors in an amount equal to at least fifty percent of the contract price, conditioned upon faithful performance of the contract.


WVC 31 - 20 - 5 B §31-20-5b. Prohibition against use or possession of tobacco products by inmates held by regional facility authority in regional jails operated solely by the authority; authorization to establish smoking cessation program.

Notwithstanding any provision of this code to the contrary, the authority shall prohibit the use or possession of tobacco products by inmates held in facilities operated solely by the authority. The authority may establish smoking cessation programs to facilitate the prohibition set forth in this section.


WVC 31 - 20 - 5 D §31-20-5d. Good-time credit.

          (a) Any person convicted of a criminal offense and sentenced to confinement in a regional jail is to be granted reduction of his or her sentence for good conduct in accordance with this section.

          (b) The reduction of sentence or good time is to be deducted from the fixed term of determinate sentences. An inmate under two or more consecutive sentences is allowed good time as if the several sentences, when the maximum terms thereof are added together, were all one sentence.

          (c) Every inmate sentenced to a regional jail for a term of confinement exceeding six months who, in the judgment of the administrator of the regional jail facility, faithfully complies with all rules of the regional jail during his or her term of confinement is entitled to a deduction of five days from each month of his or her sentence. No inmate may be granted any good time under the provisions of this section for time spent on bond or for time served on parole or in any other status in which he or she is not physically incarcerated.

          (d) Each inmate sentenced to a term of confinement in a regional jail facility who participates in a general equivalency diploma program is to be granted three days of good time for the completion of each educational literacy level, as demonstrated by achieving a passing score on standardized tests required by the Department of Education, and ten days of good time for completion of the requirements for a general equivalency diploma or high school diploma.

          (e) An inmate sentenced to a term of confinement in a regional jail for a period of six months or more, shall be granted five days of good time for the successful completion of any of the following rehabilitation programs: Domestic violence, parenting, substance abuse, life skills, alcohol abuse, anger management or any special rehabilitation or educational program designated by the executive director. Good time credit pursuant to this subsection is cumulative, however an inmate is eligible for a maximum of thirty days good time credit for the successful completion of rehabilitation programs authorized by this subsection. The fee for each class is $25 which is due upon enrollment. If an inmate is unable to pay a fee or fees in full at the time of enrollment, it may be paid by deductions from his or her inmate trust account, subject to the provisions of subsection (f), section thirty-one of this article. No more than one half of the amount in the inmate trust account during any one-week period may be so deducted.

          (f) The administrator of a regional jail facility may, with the approval of the Governor, allow extra good time for inmates who perform exceptional work or service.

          (g) The Regional Jail and Correctional Facility Authority shall promulgate disciplinary rules for the regional jail facilities. The rules are to describe prohibited acts, procedures for charging individual inmates for violations of the rules and for determining the guilt or innocence of inmates charged with the violations and sanctions that may be imposed for the violations. For each violation by an inmate, any part or all of the good time that has been granted to the inmate may be forfeited and revoked by the administrator of the regional jail facility. The administrator, when appropriate and with approval of the executive director, may restore any good time forfeited for a violation of the rules promulgated or adopted pursuant to this subsection.

          (h) Each inmate sentenced to a term of confinement in a regional jail in excess of six months shall, within seventy-two hours of being received into a regional jail, be given a copy of the disciplinary rules, a statement setting forth the term or length of his or her sentence or sentences and the time of his or her minimum discharge.
WVC 31 - 20 - 5 E §31-20-5e. Monitoring of inmate telephone calls; procedures and restrictions; attorney-client privilege protected and exempted.
The executive director or his or her designee is authorized to monitor, intercept, record and disclose telephone calls to or from inmates housed in regional jails in accordance with the following provisions:

(1) All inmates housed in regional jails shall be notified in writing that their telephone conversations may be monitored, intercepted, recorded and disclosed;

(2) Only the executive director and his or her designee shall have access to recordings of inmates' telephone calls unless disclosed pursuant to subdivision (4) of this subsection;

(3) Notice shall be prominently placed on or immediately near every telephone that may be monitored;

(4) The contents of inmates' telephone calls may be disclosed to the appropriate law-enforcement agency only if the disclosure is:

(A) Necessary to safeguard the orderly operation of the regional jails;

(B) Necessary for the investigation of a crime;

(C) Necessary for the prevention of a crime;

(D) Necessary for the prosecution of a crime;

(E) Required by an order of a court of competent jurisdiction; or

(F) Necessary to protect persons from physical harm or the threat of physical harm;

(5) Recordings of telephone calls may be destroyed after twelve months unless further retention is required for disclosure pursuant to subdivision (4) of this subsection or, in the discretion of the executive secretary, for other good cause; and

(6) To safeguard the sanctity of the attorney-client privilege, an adequate number of telephone lines that are not monitored shall be made available for telephone calls between inmates and their attorneys. Such calls shall not be monitored, intercepted, recorded or disclosed in any matter.


WVC 31 - 20 - 5 F §31-20-5f. Charges assessed against inmates for services provided by the authority.
(a) The executive director is authorized to assess inmates serving a sentence in any regional jail reasonable charges for health care and treatment services provided to them by the authority. The charges assessed against an inmate may be deducted directly from the inmate's trustee account without the inmate's consent. The inmate shall be notified of the amount deducted and the charges to which it has been applied.

(b) As used in this section, a "reasonable charge" may not exceed the sum of $5 for any billable service. Inmates shall be notified of the fee schedule, billable services and exempt services. Services initiated by the inmate shall be assessed a fee, except that no charge may be assessed for:

(1) A specific health care service required under the law of this state;

(2) An emergency service following a traumatic injury other than a self-induced injury, or necessary to prevent death or severe or permanent disability;

(3) Diagnosis and treatment of communicable diseases;

(4) Treatment of diagnosed severe mental illness;

(5) Treatment of specific chronic conditions identified by the executive director;

(6) Staff-initiated care, including follow-up and referral visits;

(7) Preventative services that the executive director determines are to be provided or made available to all inmates, including services related to disease prevention and promotion of proper health habits; or

(8) Other services as may be exempted by the rule of the authority.

No inmate may be denied any necessary billable medical service because of the inability to pay the charge.

(c) Each inmate shall be afforded an opportunity at least quarterly to review all deposits into, withdrawals from and balance remaining in the inmate's trustee account during the preceding three months.

(d) The executive director shall promulgate interpretive rules implementing this section pursuant to article three, chapter twenty-nine-a of this code prior to making any assessment under this section. The rules may establish the fee schedule and list of billable services and further define services to be exempted.


WVC 31 - 20 - 5 G §31-20-5g. Pretrial risk assessment.

     (a) Within three calender days of the arrest and placement of any person in a regional jail, the authority shall conduct a pretrial risk assessment using a standardized risk assessment instrument approved and adopted by the Supreme Court of Appeals of West Virginia. The results of all standardized risk and needs assessments are confidential and shall only be provided to the court, court personnel, the prosecuting attorney, defense counsel and the person who is the subject of the pretrial risk assessment. Upon completion of the assessment, the authority shall provide it to the magistrate and circuit clerks for delivery to the appropriate circuit judge or magistrate.

     (b) The pretrial risk assessment and all oral or written statements made by an individual during risk assessment shall be inadmissable evidence at any criminal or civil trial.
WVC 31 - 20 - 5 H §31-20-5h. Programs for inmates committed to prison.

     The Division of Corrections may develop and implement a cognitive behavioral program to address the needs of inmates detained in a regional jail, but committed to the custody of the Commissioner of Corrections. The program shall be developed in consultation with the Regional Jail Authority, and may be offered by video teleconference or webinar technology. The costs of the program shall be paid out of funds appropriated to the Division of Corrections. The program shall be covered by the rehabilitation plan policies and procedures adopted by the Division of Corrections under subsection (h), section thirteen, article twelve, chapter sixty-two of this code.
WVC 31 - 20 - 6 §31-20-6.
Repealed.

Acts, 2001 Reg. Sess., Ch. 67.


WVC 31 - 20 - 7 §31-20-7.
Repealed.

Acts, 2001 Reg. Sess., Ch. 67.


WVC 31-20-8 §31-20-8. Jail facilities standards commission; appointment; compensation; vacancies; quorum.
(a) A jail facilities standards commission of twelve members is hereby created. The superintendent of the state police or his or her designee shall serve as chairperson of the commission and is eligible to vote on matters before the commission. The governor shall appoint two county sheriffs, to be chosen from a list of three names provided by the president of the West Virginia sheriffs' association, three county commissioners, to be chosen from a list of five names provided by the president of the West Virginia county commissioners' association, and one chief of police, to be chosen from a list of three names provided by the president of the West Virginia police chiefs' association. Each of the appointed members shall serve for a term of three years, is eligible for reappointment and may vote on matters before the commission. The executive director of the regional jail and correctional facility authority, the commissioner of the division of corrections, the commissioner of the bureau of public health, the state fire marshal, and the superintendent of schools or their designees shall be members ex officio in an advisory capacity.

(b) Members of the commission shall serve without compensation, but may be reimbursed by the regional jail and correctional facility authority for reasonable and necessary expenses incurred in the performance of their duties. The regional jail and correctional facility authority shall provide the commission with secretarial and other necessary services.

(c) A vacancy among the appointed members of the commission shall be filled, within thirty days, in the same manner as the original appointment. A quorum consists of four of the seven voting members.


WVC 31 - 20 - 8 A §31-20-8a. Juvenile facilities standards commission; appointment; compensation; vacancies; quorum.
(a) A juvenile facilities standards commission consisting of fourteen members is hereby created. The governor shall appoint two citizen members who are experienced and knowledgeable in the field of law enforcement; two citizen members who are experienced and knowledgeable in the field of juvenile development; one educator; one health care professional; and one lay member. Each of these appointed members shall serve for a term of three years and be eligible for reappointment. The secretary of the department of military affairs and public safety shall be a nonvoting member, ex officio, and shall serve as the commission's chairman. The state fire marshal, the chairman of the juvenile justice subcommittee of the governor's committee on crime, delinquency and correction, a child care licensing specialist from the department of health and human resources, designated by the secretary thereof, and a representative from the administrative office of the supreme court of appeals, designated by the director of that office, shall be nonvoting members, ex officio. The director of the division of juvenile services and the executive director of the regional jail and correctional facility authority shall be nonvoting members, ex officio, and shall serve in an advisory capacity.

(b) Members of the commission shall serve without compensation, but may be reimbursed by the division of juvenile services for reasonable and necessary expenses incurred in the performance of their duties. The division of juvenile services shall provide the commission with secretarial and other necessary services.

(c) A vacancy among the appointed members of the commission shall be filled, within thirty days, in the same manner as the original appointment. A quorum consists of four of the seven voting members.


WVC 31 - 20 - 9 §31-20-9. Jail facilities standards commission: Purpose, powers and duties.
(a) The purpose of the jail facilities standards commission is to assure that proper minimum standards and procedures are developed for jail facility operation, maintenance and management of inmates for regional jails and local jail facilities. In order to accomplish this purpose, the commission shall:

(1) Prescribe standards for the maintenance and operation of county and regional jails. The standards shall include, but not be limited to, requirements assuring adequate space, lighting and ventilation; fire protection equipment and procedures; provision of specific personal hygiene articles; bedding, furnishings and clothing; food services; appropriate staffing and training; sanitation, safety and hygiene; isolation and suicide prevention; appropriate medical, dental and other health services; indoor and outdoor exercise; appropriate vocational and educational opportunities; classification; inmate rules and discipline; inmate money and property; religious services; inmate work programs; library services; visitation, mail and telephone privileges; and other standards necessary to assure proper operation: Provided, That the standards developed for the construction, operation and maintenance of jails apply only to jail facilities completed after April 5, 1988, and that the standards serve only as guidelines for any jail facility in operation prior to that date: Provided, however, That the commission shall establish standards and procedures permitting and implementing in those facilities the double bunking of inmates in all appropriate cases to the extent that this practice does not violate federal law;

(2) Propose legislative rules for promulgation pursuant to the provisions of article three, chapter twenty-nine-a of this code that are necessary to implement the provisions of this article relating to jail facilities, including, without limitation, minimum jail and work farm standards which shall be proposed for promulgation on or before July 1, 1999: Provided, That rules filed by the jail and correctional facilities standards commission and authorized by the Legislature to be promulgated before the amendment to this section enacted in the regular session of the Legislature in the year 1998 remain in force except that such previously promulgated rules no longer apply to: (i) Correctional facilities; and (ii) jail facilities that were originally constructed for use as a jail which were completed and placed in operation before April 5, 1998: Provided, however, That such previously promulgated rules shall serve as guidelines for those facilities that fall within the specifications of (ii) herein;

(3) Develop a process for reviewing and updating the jail and work farm standards pursuant to the provisions of article three, chapter twenty-nine-a of this code as necessary to assure that they conform to current law; and

(4) Report periodically to the regional jail and correctional facility authority and the appropriate county and municipal authorities to advise, recommend, and direct actions to be taken by the authority, the county or the municipality to implement proper minimum jail and work farm standards.

(b) Notwithstanding any other provision of this code to the contrary, any county commission providing and maintaining a jail on the effective date of this article may not be required to provide and maintain a jail after a regional jail becomes available pursuant to the provisions of article twenty, chapter thirty-one of this code, unless the county commission determines that a facility is necessary: Provided, That the county commission may provide and maintain a facility which complies with the standards set forth for holding facilities in legislative rules promulgated by the jail facilities standards commission or its predecessor, the jail and correctional facilities standards commission.


WVC 31 - 20 - 9 A §31-20-9a. Juvenile facilities standards commission; purpose; powers; and duties.
The purpose of the commission is to assure that proper minimum standards and procedures are developed for the structure and physical plant of juvenile detention and juvenile correctional facilities and their operation, maintenance and management. To this end, the commission shall:

(1) Develop standards for the structure and physical plant, maintenance and operation of juvenile detention and correctional facilities. These standards shall include, but not be limited to, requirements assuring adequate space, lighting and ventilation; fire protection equipment and procedures; provision of specific personal hygiene articles; bedding, furnishings and clothing; food services; appropriate staffing and training; sanitation, safety and hygiene; isolation and suicide prevention; appropriate medical, dental, behavioral and other health services; indoor and outdoor exercise; appropriate vocational and educational opportunities; rules and discipline; religious services; vocational programs; library services; visitation, mail and telephone privileges; and other standards necessary to assure proper operation.

(2) Propose legislative rules for promulgation pursuant to article three, chapter twenty-nine-a of this code, including, without limitation, the minimum standards for juvenile detention and correctional facilities as provided in subdivision (1) of this section not later than the first day of December, two thousand one.

(3) Develop a process for reviewing and updating these rules and standards as necessary to assure that they conform to current law.

(4) Report periodically to the authority to advise and recommend actions to be taken by the authority, if necessary, to implement proper standards in the state's juvenile detention and correctional facilities.

The commission is hereby directed to promulgate an emergency rule, pursuant to the provisions of article three, chapter twenty-nine-a of this code, relating to licensing and accreditation for juvenile detention facilities and juvenile correctional facilities: Provided, That such emergency rule shall make provision for grandfathering existing juvenile detention facilities and juvenile correctional facilities into the licensing and accreditation scheme.


WVC 31 - 20 - 10 §31-20-10. Regional jail and correctional facility authority funds.
(a) The Regional Jail and Correctional Facility Authority may create special funds in the State Treasury to identify various revenue sources and payment of specific obligations. These funds may be used for purposes that include, but are not limited to, the construction, renovation or repair of specific facilities, cash control, facility maintenance and the individual operations accounts of facilities operated by the authority. The authority may create other separate accounts within these funds that it determines are necessary for the efficient operation of the authority.

(b) Revenues deposited into these funds shall be used to make payments of interest and shall be pledged as security for bonds, security interests or notes issued or lease-purchase obligations entered into with another state entity by the authority pursuant to this article.

(c) Whenever the authority determines that the balance in these funds is in excess of the immediate requirements of this article, it may request that the excess be invested until needed. In this case, the excess shall be invested in a manner consistent with the investment of temporary state funds. Interest earned on any money invested pursuant to this section shall be credited to these funds.

(d) If the authority determines that moneys held in these funds are in excess of the amount needed to carry out the purposes of this article, it shall take any action that is necessary to release the excess and transfer it to the General Revenue Fund of the State Treasury.

(e) These funds consist of the following:

(1) Amounts raised by the authority by the sale of bonds or other borrowing authorized by this article;

(2) Moneys collected and deposited in the State Treasury which are specifically designated by Acts of the Legislature for inclusion in these funds;

(3) Contributions, grants and gifts from any source, both public and private, which may be used by the authority for any project or projects;

(4) All sums paid by the counties pursuant to subsection (h) of this section; and

(5) All interest earned on investments made by the state from moneys deposited in these funds.

(f) The amounts deposited in these funds shall be accounted for and expended in the following manner:

(1) Amounts raised by the sale of bonds or other borrowing authorized by this article shall be deposited in a separate account within these funds and expended for the purpose of construction, renovation and repair of correctional facilities, regional jails and juvenile detention and correctional facilities for which need has been determined by the authority;

(2) Amounts deposited from all other sources shall be pledged first to the debt service on any bonded indebtedness, including lease-purchase obligations entered into by the authority with another state entity or other obligation incurred by borrowing of the authority;

(3) After any requirements of debt service have been satisfied, the authority shall requisition from these funds the amounts that are necessary to provide for payment of the administrative expenses of this article;

(4) The authority shall requisition from these funds, after any requirements of debt service have been satisfied, the amounts that are necessary for the maintenance and operation of regional jails that are constructed pursuant to the provisions of this article and shall expend those amounts for that purpose. These funds shall make an accounting of all amounts received from each county by virtue of any filing fees, court costs or fines required by law to be deposited in these funds and amounts from the jail improvement funds of the various counties. After the expenses of administration have been deducted, the amounts expended in the respective regions from those sources shall be in proportion to the percentage the amount contributed to these funds by the counties in each region bears to the total amount received by these funds from those sources;

(5) Notwithstanding any other provisions of this article, sums paid into these funds by each county pursuant to subsection (h) of this section for each inmate shall be placed in a separate account and shall be requisitioned from these funds to pay for costs incurred at the regional jail facility at which each inmate was incarcerated; and

(6) Any amounts deposited in these funds from other sources permitted by this article shall be expended in the respective regions based on particular needs to be determined by the authority.

(g) (1) After a regional jail facility becomes available pursuant to this article for the incarceration of inmates, each county within the region shall incarcerate all persons whom the county would have incarcerated in any jail prior to the availability of the regional jail facility in the regional jail facility except those whose incarceration in a local jail facility used as a local holding facility is specified as appropriate under the standards and procedures developed pursuant to section nine of this article and who the sheriff or the circuit court elects to incarcerate therein.

(2) Notwithstanding the provisions of subdivision (1) of this subsection, circuit and magistrate courts are authorized to:

(A) Detain persons who have been arrested or charged with a crime, in a county or municipal jail, specified as appropriate under the standards and procedures developed pursuant to section nine of this article, for a period not to exceed ninety-six hours; or

(B) Commit persons convicted of a crime in a county or municipal jail, specified as appropriate under the standards and procedures developed pursuant to section nine of this article, for a period not to exceed fourteen days.

(h) When inmates are placed in a regional jail facility pursuant to subsection (g) of this section, the county shall pay into the Regional Jail and Correctional Facility Authority Fund a cost per day for each incarcerated inmate to be determined by the Regional Jail and Correctional Facility Authority according to criteria and by procedures established by legislative rules proposed for promulgation pursuant to article three, chapter twenty-nine-a of this code and as established in section ten-a of this article to cover the costs of operating the regional jail facilities of this state to maintain each inmate. The per diem costs for incarcerating inmates may not include the cost of construction, acquisition or renovation of the regional jail facilities: Provided, That each regional jail facility operating in this state shall keep a record of the date and time that an inmate is incarcerated and a county may not be charged for a second day of incarceration for an individual inmate until that inmate has remained incarcerated for more than twenty-four hours. After that, in cases of continuous incarceration, subsequent per diem charges shall be made upon a county only as subsequent intervals of twenty-four hours pass from the original time of incarceration.


WVC 31 - 20 - 10 A §31-20-10a. Criteria and procedures for determining the cost per day for inmates incarcerated in facilities operated by the authority and allocating cost.
(a) This section applies to the regional jail and correctional facility authority, counties, municipalities, the division of corrections, the United States marshal service, the United States bureau of prisons and any other entity by whose authority inmates are incarcerated and maintained in facilities operated by the authority.

(b)(1) The authority shall develop and approve a schedule of anticipated operational expenditures for each regional jail. The schedules shall include funds for personal services and fringe benefits for personnel necessary to the operation of the facilities, as well as allocations of funds for food, clothing, utilities, supplies, transportation and all other costs necessary to operate and maintain the facilities. The operational expenditure schedule shall include all costs, both direct and indirect, for operating and maintaining the regional jail. The authority shall develop and approve an operational expenditure schedule for each regional jail on an annual basis, consistent with the state fiscal year.

(2) If the actual operational costs exceed the approved schedule of operational expenditures by more than ten percent in a line item, the authority's executive director shall add a temporary surcharge to the cost per inmate day in an amount sufficient to cover the actual expenditures.

(c) The county is responsible for costs incurred by the authority for housing and maintaining inmates in its facilities who have not been committed to the custody of the commissioner of corrections.

(d) The county is responsible for the costs incurred by the authority for housing and maintaining inmates who, prior to sentencing, are awaiting transportation to a state correctional facility for a sixty-day evaluation period as provided in section seven, article twelve, chapter sixty-two of this code.

(e) The division of corrections is responsible for the costs incurred by the authority for housing and maintaining inmates who have been sentenced to the custody of the division of corrections beginning the calendar day following the day the commitment order was entered into the court record. The circuit clerk of the county from which the commitment order has been entered shall immediately transmit by facsimile machine an advance copy of the certified commitment order to the division of corrections and to the regional jail in which the inmate is confined.

(f) The division of corrections is responsible for the costs incurred by the authority for housing and maintaining inmates who have been held on a parole violation warrant.

(g) The division of corrections is responsible for the costs incurred by the authority for housing and maintaining inmates who have been returned to a regional jail under court order, except that the county from which the inmate was charged is responsible for the per diem costs in the event that a court of competent jurisdiction sets aside or vacates the order of commitment to the division of corrections, from the date of the order or the return of the inmate to a regional jail, whichever is later.

(h) The costs incurred by the authority for housing and maintaining inmates who are being held as fugitives from justice from another jurisdiction shall be billed to the fugitive's demanding jurisdiction, except the costs incurred by the authority for housing and maintaining any person who is arrested and confined in one of the authority's facilities on the basis of the commission of a new crime shall be billed to the arresting county until the pending West Virginia charges have been properly resolved.

(i) Any other entity or jurisdiction, unless otherwise stipulated in this section, is responsible for any and all costs associated with housing its inmates in a facility operated by the authority.


WVC 31 - 20 - 10 B §31-20-10b. Regional Jail Operations Partial Reimbursement Fund.
(a) There is created in the State Treasury a new fund designated the Regional Jail Operations Partial Reimbursement Fund.

(b) Revenues deposited into this Fund shall be composed of fees collected by magistrate courts pursuant to subsection (g), section one and subdivision (3), subsection (a), section two, article three, chapter fifty of this code and by circuit courts pursuant to section eleven, article one, chapter fifty-nine of this code.

(c) Revenues deposited into this Fund shall be used to reimburse those counties and municipalities participating in the regional jail system for the cost of incarceration.

(d) The State Treasurer shall, in cooperation with the Regional Jail and Correctional Facility Authority, administer the Fund. The State Treasurer shall determine the amount of funds available for reimbursement and, upon receiving a report from the Regional Jail and Correctional Facility Authority which presents the total number of inmate days in the fiscal year immediately concluded, the State Treasurer shall calculate the reimbursement to each participant based upon a pro rata share formula.

(e) A participant's share shall be comparable with its total of inmate days, which shall consist of the number of inmates it contributed to the regional jail system and the number of days those inmates remained incarcerated.

(f) Within ninety days of the first day of July, two thousand six, and annually thereafter, each participant shall receive its reimbursement from this Fund.


WVC 31 - 20 - 11 §31-20-11. Borrowing of money.
The borrowing of money and the notes, bonds and security interests evidencing any such borrowing shall be authorized by resolution approved by the board, shall bear such date or dates and shall mature at such time or times, in the case of any such bonds, not exceeding twenty-five years from the date of issue, as such resolution or resolutions may provide. The notes, bonds and security interests shall bear interest at such rate or rates, be in such denominations, be in such form, either coupon or registered, carry such registration privileges, be executed in such manner, be payable in such medium of payment and at such place or places, and be subject to such terms or conditions of redemption as such resolution or resolutions may provide.


WVC 31 - 20 - 12 §31-20-12. Notes, security interests and bonds as general obligations of authority.
Except as may otherwise be provided by the authority every issue of its notes, security interests and bonds shall be general obligations of the authority payable out of any revenues or moneys of the authority, subject only to any agreements with the holders of particular notes, security interests or bonds pledging any particular revenues.


WVC 31 - 20 - 13 §31-20-13. Notes, security interests and bonds as negotiable instruments.
The notes, security interests and bonds issued by the authority shall be and hereby are made negotiable instruments under the provisions of article eight, chapter forty-six of this code, subject only to the provisions of the notes, security interests or bonds for registration.


WVC 31 - 20 - 14 §31-20-14. Authorizing resolutions.
Any resolution or resolutions authorizing any notes, security interests or bonds or any issue thereof, may contain provisions, which shall be a part of the contract with holders, as to:

(1) Pledging all or part of the revenues of the authority to secure the payment of the notes, security interests or bonds or any issue thereof, subject to such agreements with noteholders, holders of security interests or bondholders as may then exist;

(2) Pledging all or any part of the assets of the authority to secure the payment of the notes, security interests or bonds or any issue thereof, subject to such agreements with noteholders, holders of security interests or bondholders as may then exist;

(3) The setting aside of reserves or sinking funds and the regulation and disposition thereof;

(4) Limitations on the purposes to which proceeds of sale of notes, security interests or bonds may be applied and pledging such proceeds to secure the payment on the notes, security interests or bonds or of any issue thereof;

(5) Limitations on the issuance of additional notes, security interests or bonds; the terms upon which additional notes, security interests or bonds may be issued and secured; and the refunding of outstanding or other notes, security interests or bonds;

(6) The procedure, if any, by which the terms of any contract with noteholders, holders of security interests or bondholders may be amended or abrogated, the amount of notes, security interests or bonds the holders of which must consent thereto, and the manner in which such consent may be given;

(7) Limitations on the amount of moneys to be expended by the authority for operating, administrative or other expenses of the authority;

(8) Vesting in a trustee or trustees the property, rights, powers and duties of a trustee appointed by the bondholders pursuant to section thirteen of this article, and limiting or abrogating the right of the bondholders to appoint a trustee under section thirteen of this article or limiting the rights, powers and duties of such trustees; and

(9) Any other matters, of like or different character, which in any way affect the security or protection of the notes, security interests or bonds.


WVC 31 - 20 - 15 §31-20-15. Redemption of notes, security interests or bonds.
The authority, subject to such agreements with noteholders, holders of security interests or bondholders as may then exist, may, out of any funds available therefor, purchase notes, security interests or bonds of the authority.

If the notes, security interests or bonds are then redeemable, the price of such purchase shall not exceed the redemption price then applicable plus accrued interest to the next interest payment date thereon. If the notes, security interests or bonds are not then redeemable, the price of such purchase shall not exceed the redemption price applicable on the first date after such purchase upon which the notes, security interests or bonds become subject to redemption plus accrued interest to such date. Upon such purchase, such notes, security interests or bonds shall be canceled.


WVC 31 - 20 - 16 §31-20-16. Disclaimer of any liability of state of West Virginia.
The state of West Virginia shall not be liable on notes, security interests or bonds or other evidences of indebtedness of the authority and such notes, security interests or bonds or other evidences of indebtedness shall not be a debt of the state of West Virginia, and such notes, security interests or bonds or other evidences of indebtedness shall contain on the face thereof a statement to such effect.


WVC 31 - 20 - 17 §31-20-17. Default in payment of principal or interest.
In the event the authority shall default in the payment of principal of or interest on any issue of its notes, security interests or bonds after they become due, whether at maturity or upon call for redemption, and such default continues for a period of thirty days, or in the event the authority fails or refuses to comply with the provisions of this article or defaults in any agreement made with the holders of any issue of notes, security interests or bonds, the holders of twenty-five percent in aggregate principal amount of the notes, security interests or bonds of such issue then outstanding, by instrument or instruments filed in the office of the clerk of the county commission of any county in which the authority operates and has an office and acknowledged in the same manner as a deed to be recorded, may appoint a trustee to represent the holders of such notes, security interests or bonds for the purposes herein provided:

(a) Any such trustee, upon the written request of the holders of twenty-five percent in the principal amount of such notes, security interests or bonds of the authority then outstanding, shall, in his or its own name, do any one or more of the following:

(1) By civil action or other proceeding, enforce all rights of the noteholders, holders of security interests or bondholders, including the right to require the authority to perform its duties under this article;

(2) Bring a civil action upon such notes, security interests or bonds;

(3) By civil action or other proceeding, require the authority to account as if it were the trustee of an express trust for the holders of such notes, security interests or bonds;

(4) By civil action or other proceeding, enjoin any acts or things which may be unlawful or in violation of the rights of the holders of such notes, security interests or bonds; or

(5) Declare all such notes, security interests or bonds due and payable, and, if all defaults are made good, then annul such declaration and its consequences.

(b) In addition to the foregoing, such trustee shall have and possess all of the powers necessary or appropriate for the exercise of any functions specifically set forth herein or incident to the general representation of holders of notes, security interests or bonds of the authority in the enforcement and protection of their rights.

(c) Before declaring the principal of any notes, security interests or bonds due and payable, the trustee shall first give thirty days' notice in writing to the authority.


WVC 31 - 20 - 18 §31-20-18. Investment in notes, security interests and bonds.
The notes, security interests and bonds of the authority are hereby made securities in which the state board of investments, all insurance companies and associations and other persons carrying on an insurance business, all banking institutions, trust companies, building and loan associations, savings and loan associations, investment companies and other persons carrying on a banking business and other persons, except administrators, guardians, executors, trustees and fiduciaries, who are now or who may hereafter be authorized to invest in bonds or other obligations of the state, may properly and legally invest funds, including capital in their control or belonging to them. The state board of investments, prior to investing funds, including capital in such notes, security interests or bonds of the authority shall first inquire fully into the integrity and sufficiency of the collateral securing such investment and shall be fully satisfied as to the sufficiency and integrity thereof; and may only so invest if the yield therefrom is at least equal to or greater than the prevailing market yield from similar United States twenty-six-week treasury bills. The state board of investments shall not purchase evidences of indebtedness having terms in excess of eighteen months from date of purchase to date of maturity.


WVC 31 - 20 - 19 §31-20-19. Tax exemption.

The exercise of the powers granted to the authority by this article will be in all respects for the benefit of the people of the state for the improvement of their safety, convenience and welfare. Since the operation and maintenance of correctional facilities and correctional facility industries projects will constitute the performance of essential governmental functions, the authority is not required to pay any taxes or assessments upon any such facilities or projects or upon any property acquired or used by the authority or upon the income therefrom. Such bonds, security interests and notes and all interest and income thereon are exempt from all taxation by this state, or any county, municipality, political subdivision or agency thereof, except inheritance taxes.


WVC 31 - 20 - 20 §31-20-20. Authorized limit on borrowing.
The aggregate principal amount of notes, security interests and bonds issued by the authority may not exceed two hundred million dollars outstanding at any one time. In computing the total amount of notes, security interests and bonds which may be outstanding at any one time, the principal amount of any outstanding notes, security interests and bonds refunded or to be refunded either by application of the proceeds of the sale of any refunding notes, security interests or refunding bonds of the authority or by exchange for any such notes, security interests or refunding bonds shall be excluded. The state board of investments may have invested no more than a total aggregate principal amount of fifteen million dollars at any one time in such notes, security interests or bonds.


WVC 31 - 20 - 21 §31-20-21. Validity of any pledge, mortgage, deed of trust or security instrument.
It is the intention hereof that any pledge, mortgage, deed of trust or security instrument made by or for the benefit of the authority shall be valid and binding between the parties from the time the pledge, mortgage, deed of trust or security instrument is made; and that the moneys or property so pledged, encumbered, mortgaged or entrusted shall immediately be subject to the lien of such pledge, mortgage, deed of trust or security instrument without any physical delivery thereof or further act.


WVC 31 - 20 - 22 §31-20-22. Money of the authority.
All money accruing to the authority from whatever source derived, except legislative appropriations, and except that authorized to be deposited directly into a regional jail and correctional facility authority fund shall be collected and received by the treasurer of the authority, who shall pay it into the state treasury in the manner required by section two, article two, chapter twelve of this code, to be credited to the fund.


WVC 31 - 20 - 23 §31-20-23. Conflict of interest; when contracts void.
No member, officer or employee of the authority may be interested, either directly or indirectly, in any manner in any contract or agreement of any person with the authority. Any contract or agreement made in violation of the provisions of this section is void and no action thereon may be maintained against the authority.


WVC 31 - 20 - 24 §31-20-24. Agreement with federal agencies not to alter or limit powers of authority.

The state hereby pledges to and agrees with each federal agency that, if such agency constructs or loans or contributes any funds for the acquisition, construction, extension, improvement or enlargement of any correctional facility or correctional facility industries project, the state will not alter or limit the rights and powers of the authority in any manner which would be inconsistent with the due performance of any agreement between the authority and such federal agency and that the authority shall continue to have and exercise all powers granted for carrying out the purposes of this article for so long as necessary.


WVC 31 - 20 - 25 §31-20-25.
Repealed.

Acts, 2001 Reg. Sess., Ch. 67.


WVC 31-20-26 §31-20-26. Legislative oversight committee.
The president of the Senate and the speaker of the House of Delegates shall each designate five members of their respective houses, at least one of whom shall be a member of the minority party, to serve on a legislative oversight committee charged with immediate and ongoing oversight of the authority and the commissions, and functions and duties of the authority and the commissions created by this article. This committee shall report regularly at each legislative session on the implementation of the purposes set forth in section one-a of this article. It shall regularly investigate all matters relating to integrity, probity and foresight in funding, operating and planning the correctional system on state, regional and county levels, and may include the planning, funding, constructing and operating of juvenile detention and correctional facilities. Specifically, the committee shall study and make recommendations to the Legislature as to the revision of the system of classifying adult inmates, with a view variously to decreasing the prison population confined in "maximum security" facilities and to designating and meeting the needs of inmates classified as elderly, disabled or otherwise handicapped. In addition, the committee may study and make recommendations to the Legislature relating to the system of juvenile detention and juvenile corrections.

The committee shall further study and inform the state judiciary of the impact of sentencing on the composition of the prison population in proportion to the use of facilities. It shall recommend alternatives to long-term sentencing, and shall recommend measures to improve the quality of correctional staff and facilitate nonconfrontational contacts with inmates. The committee shall investigate means to structure inmates' time to ensure genuine and willing reaccommodations to societal norms; shall probe and coordinate all available means for funding state, regional and county correctional facilities; and shall contract with penal experts to study these issues in appropriate depth and perspective. Annually, to predict a prudent use of available funds, the committee shall study the profile of the inmate population with regard to its age and social background and needs.

The committee shall recommend to the Legislature the funding required to execute these functions. It shall meet regularly with the governing body of the authority established in this article to determine what may be required for full and timely compliance with all federal mandates and court-ordered changes in the correctional system and shall recommend funding for these changes.


WVC 31 - 20 - 27 §31-20-27. Employees of Regional Jail Authority; priority of hiring; civil service coverage.

(a) Notwithstanding any provision of this code to the contrary, the authority, when hiring employees to complete the approved staffing plan of a regional jail shall do so at a salary and with benefits consistent with the approved plan of compensation of the Division of Personnel, created under section five, article six, chapter twenty-nine of this code. All persons employed under this subsection shall be placed in the civil service system as covered employees. On and after the first day of January, two thousand eight, the executive director, of the Regional Jail and Correctional Facility Authority; all employees within the office of the executive director and all regional jail administrators are exempt from coverage under the classified service.

(b) Persons employed under the provisions of this subsection shall be employed at a salary and with benefits consistent with the approved plan of compensation of the Division of Personnel, created under section five, article six, chapter twenty-nine of this code. All persons employed under this subsection shall also be covered by the policies and procedures of the West Virginia Public Employees Grievance Board created under section one, article three, chapter six-c of this code.

(c) Not withstanding the provisions of section ten, article six, chapter twenty-nine of this code, and any rule promulgated thereunder, on and after the first day of July, two thousand seven, any person applying for employment with the Regional Jail and Correctional Facility Authority shall be hired based on passage of the correctional officer examination without regard to his or her position on the correctional officer register and shall be placed in the civil service system as covered employees: Provided, That no such person shall be hired before an otherwise qualified person on a preference register.


WVC 31 - 20 - 27 A §31-20-27a. Regional jail employees right to carry firearm; arrest authority of correctional officers.
(a) The executive director may issue a certificate authorizing any regional jail employee who has successfully completed the authority's training program for firearms certification, which shall be the equivalent of that required of deputy sheriffs, to carry firearms and concealed weapons while on duty. Any regional jail employee authorized by the executive director has the right, without a state license, to carry firearms and concealed weapons while on duty, pursuant to the provisions and limitations of this section. Each employee authorized by the executive director shall carry with him or her a certificate, authorizing him or her to carry a firearm or concealed weapon when performing his or her official duties as a regional jail employee, bearing the official signature of the executive director and administrator. The right is extended to a regional jail employee during the time the employee travels from place to place within the state for the purpose of transporting inmates, and during the time the employee is pursuing and apprehending escaped inmates, and during any other time the employee is performing official duties as a regional jail employee. The regional jail employee's carrying of a firearm or concealed weapon while on regional jail property must also comply with rules and procedures established by the Regional Jail Authority. No regional jail employee has the right to carry a firearm or concealed weapon for any other purpose or during any other time, including when traveling to and from the employee's residence and a regional jail, unless the employee has obtained a state license in the manner prescribed in article seven, chapter sixty-one of this code.

(b) Persons employed by the Regional Jail Authority as correctional officers are hereby authorized and empowered to make arrests of persons already charged with a violation of law who surrender themselves to such correctional officer, to arrest persons already in the custody of the Regional Jail Authority for violations of law occurring in the officer's presence, to detain persons for violations of state law committed on the property of any regional jail, and to conduct investigations, pursue and apprehend escapees from the custody of regional jail.

(c) Nothing in this section shall be construed as to make a correctional officer employed by the Regional Jail Authority a law-enforcement officer as defined in section one, article twenty-nine, chapter thirty of this code.


WVC 31 - 20 - 28 §31-20-28. Limitations on contracts for sale of bonds or other securities.

(a) When issuing its bonds or other securities pursuant to the provisions of this article, the regional jail and correctional facility authority shall not employ or contract with any person or business entity acting as an investment adviser, underwriter, broker, dealer, government securities broker, government securities dealer, transfer agent, attorney, bond counsel, trustee or accountant, if the authority finds, on the record after notice and opportunity for hearing, that employing or contracting with such person or business entity would be contrary to the public interest, and that such person or business entity, or any person associated with such person or entity, whether prior to or subsequent to becoming so associated, has been convicted, within the five years preceding the date when such bonds or other securities are proposed to be issued, of a felony or misdemeanor under the laws of this state, a sister state or the United States of America, involving the sale or purchase of any government security, and if the authority further finds that the offense committed involves:

(1) The bribery of a public officer or employee or a member of the immediate family of a public officer or employee;

(2) Perjury;

(3) Larceny;

(4) Any substantially equivalent activity, however denominated by the laws of the relevant jurisdiction; or

(5) The conspiracy to commit any such offense.

(b) When issuing its bonds or other securities, the regional jail and correctional facility authority shall not employ or contract with any person or business entity acting as an investment adviser, underwriter, broker, dealer, government securities broker, government securities dealer, transfer agent, attorney, bond counsel, trustee or accountant, if the authority finds, on the record after notice and opportunity for hearing, that employing or contracting with such person or business entity would be contrary to the public interest, and that such person or business entity, or any person associated with such person or entity, whether prior to or subsequent to becoming so associated, has, within the five years preceding the date when such bonds or other securities are proposed to be issued:

(1) Directly or indirectly given, offered or promised money, services, or any other thing of value having a value of greater than one hundred dollars to a public officer or employee or a member of the immediate family of a public officer or employee when the money, service or other thing of value constituted a material part of the factual basis upon which the public officer or employee or a member of the immediate family of the public officer or employee was convicted of a felony or misdemeanor under the laws of this state, a sister state or the United States of America, involving the sale or purchase of any government security; or

(2) Willfully aided, abetted, counseled, commanded, induced, or procured a violation which constitutes the basis for a misdemeanor or felony conviction as described in subsection (a) of this section or subdivision (1) of this subsection.

(c) When issuing its bonds or other securities pursuant to the provisions of this article, the regional jail and correctional facility authority shall not employ or contract with any person or business entity acting as an investment adviser, underwriter, broker, dealer, government securities broker, government securities dealer, transfer agent, attorney, bond counsel, trustee or accountant, if the authority finds, on the record after notice and opportunity for hearing, that employing or contracting with such person or business entity would be contrary to the public interest, and that such person or business entity, or any person associated with such person or entity, whether prior to or subsequent to becoming so associated, has conducted or is conducting any business or transaction in which a financial interest is held by a public officer or employee, agent or attorney of the government of this state, or a member of the immediate family of such persons, if the public officer or employee, agent or attorney is in a positionwhereby he or she may personally and substantially influence the discretionary actions of the authority in connection with the issuance of bonds or other securities, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise: Provided, That the ethics commission shall, on or before the fifteenth day of December, one thousand nine hundred ninety-three, promulgate an emergency rule to establish guidelines and standards for the implementation of this subsection by the authority.

(d) For purposes of this section, the term "immediate family" means a spouse and any unemancipated child of a person.

(e) The regional jail and correctional facility authority may declare void and rescind any contract with any person or business entity acting as an investment adviser, underwriter, broker, dealer, government securities broker, government securities dealer, transfer agent, attorney, bond counsel, trustee or accountant, if the authority finds, on the record after notice and opportunity for hearing, that continuing to employ or contract with such person or business entity would be contrary to the public interest, and that such person or business entity, or any person associated with such person or entity, whether prior to or subsequent to becoming so associated, has engaged in conduct which would prohibit the authority, under the provisions of this section, from entering into a contract with such person or business entity if the contract was yet to be executed.


WVC 31 - 20 - 29 §31-20-29. Furlough program.
(a) The Executive Director, or his or her designee, is authorized to establish under legislative rules promulgated by the Executive Director pursuant to article three, chapter twenty-nine-a of this code a furlough program for inmates under the Authority's control and custody in accordance with the following provisions:

(1) The program may include, but is not limited to, granting furloughs or special escorts for specified inmates under the Authority's control and custody to attend funerals or make hospital visits to terminally ill family members.

(2) The Executive Director shall establish criteria to be used in determining which inmates are not likely to jeopardize public safety and should be granted a furlough or a special escort through this program.

(3) The Executive Director is authorized to establish any other guidelines he or she considers necessary to administer the program and to ensure public safety, including, but not limited to:

(A) Guidelines relating to eligibility for consideration, restrictions, conditions and procedures; and

(B) The family relationship an inmate must have with the deceased or terminally ill individual in order to qualify for consideration for a furlough.

(b)(1) The Regional Jail and Correctional Facility Authority, its members, Executive Director and employees of the Authority are immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of any actual or alleged act of an inmate while on a furlough granted under this section.

(2) The immunity from suit and liability provided in this subsection does not extend to liability for any damage, loss, injury or liability caused by the intentional or willful and wanton misconduct of any person identified in subdivision (1) of this subsection.


WVC 31 - 20 - 30 §31-20-30. Limitation on reimbursement rate to medical service providers for services outside regional jail facilities.
(a) Effective the first day of July, two thousand seven, the authority, or its contracted medical provider, may not pay an amount to an outside provider of a medical service for a person residing in a regional jail greater than seventy-three percent of the billed charges: Provided, That critical access hospitals shall be reimbursed at eighty-five percent of the billed charges. These limitations apply to all medical care services, goods, prescription drugs and medications provided to a person who is in the custody of a regional jail and is provided these services outside of a regional jail.

(b) Effective the first day of July, two thousand eight, the authority, or its contracted medical providers, may not pay an amount to an outside provider of a medical service for a person residing in a regional jail greater than the reimbursement rate applicable to service providers established by legislative rule of the Bureau for Medical Service within the Department of Health and Human Resources: Provided, That critical access hospitals shall be reimbursed at seventy-five percent of the billed charges. This limitation applies to all medical care services, goods, prescription drugs and medications provided to a person who is in the custody of a regional jail and is provided these services outside of a regional jail: Provided, however, That the Department of Military Affairs and Public Safety and the Department of Health and Human Resources effectuate an interagency agreement for the electronic processing and payment of medical services.


WVC 31 - 20 - 30 A §31-20-30a. Mechanical restraints during pregnancy.
In providing or arranging for the necessary medical and other care and treatment of inmates committed to the Regional Jail Authority's custody, the authority shall assure that pregnant inmates will not be restrained after reaching the second trimester of pregnancy until the end of the pregnancy: Provided, That if the inmate, based upon her classification, discipline history, or other factors deemed relevant by the authority poses a threat of escape, or to the safety of herself, the public, staff or the fetus, the inmate may be restrained in a manner reasonably necessary: Provided, however, That prior to directing the application of restraints and where there is no threat to the safety of the inmate, the public, staff or the fetus, the director or designee shall consult with an appropriate health care professional to assure that the manner of restraint will not pose an unreasonable risk of harm to the inmate or the fetus.


WVC 31 - 20 - 31 §31-20-31. Work program.
(a) The executive director is authorized to establish at each regional jail facility a work program for qualified inmates and to establish at each regional jail facility under his or her jurisdiction an inmate trustee account. The authority shall establish guidelines and qualifications to allow inmates sentenced to a regional jail facility to be gainfully employed with local businesses and governmental entities as part of a job program: Provided, That with regard to an inmate sentenced to the Division of Corrections that is domiciled at a regional jail facility under the supervision of the authority, the Commissioner of the Division of Corrections or designee shall first determine the eligibility of such inmate for participation in the work program authorized by this section and consent to such inmate's participation therein. A qualified inmate does not include an inmate convicted of a sexual offense or a violent felony.

(b) The administrator or designee of each regional jail facility shall receive and take charge of the money of all inmates in his or her regional jail and all money sent to the inmates or earned by the inmates as compensation for work performed under this section. The administrator or designee shall credit the money and earnings to the inmate entitled to it and shall keep an accurate account of all the money so received, which account is subject to examination by the executive director or designee. The administrator or designee shall deposit the moneys in one or more responsible banks in accounts to be designated inmate trustee account.

(c) For each inmate sentenced to the Division of Corrections participating in a work program authorized by this section, the administrator or designee of the regional jail facility shall keep in an account at least ten percent of all money earned during the inmate's incarceration and pay the money to the inmate at the time of the inmate's release. The administrator may authorize the inmate to withdraw money from his or her mandatory savings for the purpose of preparing the inmate for reentry into society.

(d) An inmate who works in work programs established under this section shall make reimbursement to the authority toward the cost of his or her incarceration to be credited to the agency billed for that incarceration: Provided, That prior to directing a qualified inmate to make reimbursement under this section, the executive director or designee shall consider the following:

(1) The inmate's ability to pay;

(2) The nature and extent of the inmate's responsibilities to his or her dependents, if any;

(3) The length of probable incarceration under the court's sentence; and

(4) The effect, if any, that reimbursement might have on the inmate's rehabilitation.

(e)(1) The administrator shall deduct from the earnings of each qualified inmate legitimate court-ordered financial obligations including, but not limited to, child support payments, liens and any other court-ordered financial obligation. The executive director shall develop a policy that outlines the formula for the distribution of the qualified inmate's income and the formula shall include a percentage deduction, not to exceed forty percent in the aggregate, for any court ordered victim restitution, court fees and child support obligations owed under a support order, including an administrative fee not to exceed one dollar, consistent with the provisions of subsection (c), section four hundred six, article fourteen, chapter forty-eight of this code, to support the authority's administration of this financial service.

(2) In the event that the qualified inmate's income is subject to garnishment for child support enforcement deductions, it shall be calculated on the net wages after taxes, legal financial obligations and garnishment: Provided, That nothing in this section limits the authority of the Bureau for Child Support Enforcement of the Department of Health and Human Resources from taking collection action against an inmate's moneys, assets or property.

(f) The administrator or designee of a regional jail facility, upon request of an inmate to release funds, on behalf of the family of the inmate, may authorize the release of funds up to one half of the money earned by the inmate participating in a work program as authorized by this section: Provided, That the court-ordered financial obligations provided in subsection (e) of this section and other fees owed by the inmate including, but not limited to, the costs of incarceration and any restitution for facility rule infractions, have been paid. The remainder of the money earned, after deducting amounts expended as authorized, shall be accumulated to the credit of the inmate and be paid to the inmate at times as may be prescribed by rules. The funds so accumulated on behalf of inmates shall be held by the administrator or designee of each institution under a bond approved by the Attorney General.

(g) The administrator or designee shall deliver to the inmate at the time he or she leaves the regional jail facility, or as soon as practicable after departure, moneys and earnings then credited to the inmate: Provided, That if an inmate is transferred to the physical custody of the Commissioner of the Division of Corrections, as defined in section two of this article, at the time he or she leaves the regional jail facility, the administrator or designee shall deliver moneys and earnings then credited to the inmate to the Commissioner of the Division of Corrections for administration in accordance with the provisions of section three-a, article one, chapter twenty-five of this code. In case of the death of the inmate before authorized release from the regional jail facility, the administrator or designee shall deliver the property to the inmate's lawful representative. In case a conservator is appointed for the inmate while he or she is domiciled at the regional jail facility, the administrator shall deliver to the conservator, upon proper demand, all moneys and personal property belonging to the inmate that are in the custody of the administrator.

(h) The executive director shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to administer and establish the work programs authorized by this section.

(i) Notwithstanding any provision of this code to the contrary, the county commission, its members and agents, the Executive Director of the West Virginia Regional Jail and Correctional Facility Authority or designee its members or agents, the sheriff, his or her deputies, correctional officers and agents shall be immune from all liability of any kind except for accident, injury or death resulting directly from gross negligence or malfeasance.


WVC 31 - 20 - 32 §31-20-32. Jail processing fee.
(a) A person committed to be housed in jail by order of magistrate, circuit judge or by temporary commitment order shall, at the time of booking into the jail, pay a processing fee of thirty dollars. If the person is unable to pay at the time of booking, the fee shall be deducted, at a rate of fifty percent, from any new deposits made into the person's jail trust account until the jail processing fee is paid in full. The fee shall be credited to:

(1) the Regional Jail and Correctional Facility Authority's operating budget if the person is committed to and housed in a regional jail;

(2) to the county commission if the person is committed to and housed in a county jail; or

(3) to the municipality if the person is committed to and housed in a municipal jail. The fee should be paid prior to the offender being released.

(b) A refund of a fee collected under this section shall be made to a person who has paid the fee if the person is not convicted of the offense for which the person was booked and the person provides documentation from the court showing that all charges for which the person was booked were dismissed, accurate current name and address and a valid photographic identification. In the case of multiple offenses, if the person is convicted of any of the offenses the fee may not be refunded. If the person is convicted of a lesser included offense or a related offense, no refund may be made.


WVC 31 - 20 - 5 D §31-20-5d. Good time credit.
          (a) Any person convicted of a criminal offense and sentenced to confinement in a regional jail is to be granted reduction of his or her sentence for good conduct in accordance with this section.

          (b) The reduction of sentence or good time is to be deducted from the fixed term of determinate sentences. An inmate under two or more consecutive sentences is allowed good time as if the several sentences, when the maximum terms thereof are added together, were all one sentence.

          (c) Every inmate sentenced to a regional jail for a term of confinement exceeding six months who, in the judgment of the administrator of the regional jail facility, faithfully complies with all rules of the regional jail during his or her term of confinement is entitled to a deduction of five days from each month of his or her sentence. No inmate may be granted any good time under the provisions of this section for time spent on bond or for time served on parole or in any other status in which he or she is not physically incarcerated.

          (d) Each inmate sentenced to a term of confinement in a regional jail facility who participates in a general equivalency diploma program is to be granted three days of good time for the completion of each educational literacy level, as demonstrated by achieving a passing score on standardized tests required by the department of education, and ten days of good time for completion of the requirements for a general equivalency diploma or high school diploma.

          (e) Each inmate sentenced to a term of confinement in a regional jail in excess of six months shall be granted five days of good time for successful completion for each of the following rehabilitation programs: Domestic violence, parenting, substance abuse, life skills, alcohol abuse, and anger management or any special rehabilitation or educational program designated by the executive director. A maximum of thirty days good time shall be granted for successful completion of all six programs. The fee for each class is $25 which is due upon enrollment. If an inmate is unable to pay a fee or fees in full at the time of enrollment, it may be paid by deductions from his or her inmate trust account, subject to the provisions of subsection (f), section thirty-one of this article. No more than one half of the amount in the inmate trust account during any one week period may be so deducted.

          (f) The administrator of a regional jail facility may, with the approval of the Governor, allow extra good time for inmates who perform exceptional work or service.

          (g) The Regional Jail and Correctional Facility Authority shall promulgate disciplinary rules for the regional jail facilities. The rules are to describe prohibited acts, procedures for charging individual inmates for violations of the rules and for determining the guilt or innocence of inmates charged with the violations, and sanctions that may be imposed for the violations. For each violation by an inmate, any part or all of the good time that has been granted to the inmate may be forfeited and revoked by the administrator of the regional jail facility. The administrator, when appropriate and with approval of the executive director may restore any good time forfeited for a violation of the rules promulgated or adopted pursuant to this subsection.

          (h) Each inmate sentenced to a term of confinement in a regional jail in excess of six months shall, within seventy-two hours of being received into a regional jail, be given a copy of the disciplinary rules, a statement setting forth the term or length of his or her sentence or sentences, and the time of his or her minimum discharge.
WVC 31 - 21 - ARTICLE 21. WEST VIRGINIA LAND STEWARDSHIP CORPORATION.
WVC 31 - 21 - 1

PART I. SHORT TITLE, DECLARATION OF POLICY, PURPOSE

OF ARTICLE AND DEFINITIONS.

§31-21-1. Short title.

     This article shall be known and may be cited as The West Virginia Land Stewardship Corporation Act.
WVC 31 - 21 - 2 §31-21-2. Definitions.

     The following words used in this article, unless the context clearly indicates a different meaning, are defined as follows:

     (1) "Agreement" means any agreement being entered into between the nonprofit corporation and a business, corporation, private party or local or state government.

     (2) "All appropriate inquiries" or "AAI" means the process of evaluating a property's environmental conditions and assessing the likelihood of any contamination. Every Phase I environmental assessment must be conducted in compliance with the All Appropriate Inquiries Final Rule at 40 CFR Part 312.

     (3) "Board of directors" or "board" means the board of directors of the corporation to be appointed under the provisions of section six of this article.

     (4) "Certified sites" means those sites that are developable properties that have been prequalified as having proper land use designation, utilities, transportation improvements, availability, and pricing. Criteria for prequalification include, but are not limited to, established pricing terms and conditions so that property acquisition can be negotiated quickly and without time- consuming delays.

     (5) "Charitable purposes" means the 501(c)(3) subclasses of "lessening the burden of the government" where the government identifies a need for the nonprofit entity to assist with a governmental service and the nonprofit collaborates with the government entity, and "environmental protection for the benefit of the public" where the services of the corporation benefit the general public by protecting public health and the environment as well as assisting with state and local economic development initiatives.

     (6) "Contaminants" has the same meaning as defined in the environmental acts referenced in subdivision (13) of this section.

     (7) "Corporation" means the West Virginia Land Stewardship Corporation, a nonstock, nonprofit corporation to be established under the West Virginia Nonprofit Corporation Act, article two, chapter thirty-one-e of this code, and with nonprofit status under one or more charitable purposes under 501(c) of the Internal Revenue Code of 1986, as amended.

     (8) "Corporate directors" means the members of the board of directors of the corporation.

     (9) "Department of Environmental Protection" or the "DEP" means the West Virginia Department of Environmental Protection or any successor agency.

     (10) "Enforcement tools" means any order, permit, consent decree or environmental covenant or similar mechanisms which restrict or control certain land uses implemented at IEC Sites.

     (11) "Engineering controls" or "ECs" means physical controls or measures designed to eliminate the potential for human exposure to contamination by limiting direct contact with contaminated areas, or controlling contaminants from migrating through environmental media into soil, groundwater or off-site.

     (12) "Enrolled sites" means properties enrolled and accepted for participation in the voluntary Land Stewardship Program.

     (13) "Environmental acts" means the Surface Coal Mining and Reclamation Act set forth in article three, chapter twenty-two of this code; the Air Pollution Control Act set forth in article five, chapter twenty-two of this code; the Water Pollution Control Act set forth in article eleven, chapter twenty-two of this code; the Groundwater Protection Act set forth in article twelve, chapter twenty-two of this code; the Solid Waste Management Act set forth in article fifteen, chapter twenty-two of this code; the Solid Waste Landfill Closure Assistance Program set forth in article sixteen, chapter twenty-two of this code; the Underground Storage Tank Act set forth in article seventeen, chapter twenty-two of this code; the Hazardous Waste Management Act set forth in article eighteen, chapter twenty-two of this code; section 103(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U. S. C. §9603(a)); section 304 of the Emergency Planning and Community Right-To-Know Act of 1986 (42 U. S. C. §§11001 to 11050); the Occupational Safety and Health Act set forth in 29 U. S. C. §§651 to 678; the Hazardous and Solid Waste Amendments of 1984, as amended, set forth in 42 U. S. C. §§6901, et seq.; and the Toxic Substances Control Act set forth in 15 U. S. C. §§2601, et seq.; and any applicable regulations promulgated under the foregoing environmental statutes.

     (14) "Governmental controls" means any state laws, ordinances, orders, permits, consent decrees and similar mechanisms which restrict or control certain land uses implemented at IEC Sites in this state.

     (15) "Institutional and Engineering Control Sites" or "IEC Sites" means sites in this state that have been remediated or closed under a federal or state environmental program, including, but not limited to, brownfields, underground storage tanks, closed landfills, open dumps, hazardous waste sites, and former mining sites with ongoing water treatment as part of mine reclamation efforts.

     (16) "Informational devices" means deed notices or other written documents that describe the remediation that was conducted on an IEC Site, the constituents of concern, and the remediation standards that were achieved. Informational devices shall be filed with property records in the office of the county clerk of the county in which the property is located as an advisory to provide environmental information to future buyers or users of the IEC Site.

     (17) "Institutional Controls" or "ICs" means administrative and legal controls that do not involve construction or physically changing the site and are generally divided into four categories: 1) Government controls, 2) Proprietary controls, 3) Enforcement tools, and 4) Informational devices. ICs are nonengineering measures that help minimize the potential for human exposure to contamination and/or protect the integrity of the remedy by limiting land or resource use.

     (18) "Nonprofit corporation" means a corporation established under the West Virginia Nonprofit Corporation Act, article two, chapter thirty-one-e of this code, to fulfill the purposes of this article.

     (19) "Pollutants" has the same meaning as defined in the environmental acts referenced in subdivision (13) of this section.

     (20) "Proprietary controls" mean legal property interests created under real property laws that rely on legal documents recorded in the chain of title for the site, and "run with the land" to bind future landowners. Examples of proprietary controls include, but are not limited to, environmental covenants, deed land use restrictions, water withdrawal prohibitions and continuing right-of-entry easements for former owners or regulators to inspect, monitor and maintain the IECs.

     (21) "Regulated substances" has the same meaning as defined in the environmental acts referenced in subdivision (13) of this section.

     (22) "Releases" has the same meaning as defined in the environmental acts referenced in subdivision (13) of this section.
WVC 31 - 21 - 3 §31-21-3. Declaration of policy.

     (a) The Legislature finds and declares that developable land is one of West Virginia's most valuable resources in terms of net contributions to the state's economy and tax base.

     (b) The Legislature further finds that:

     (1) Due to topography, the state has somewhat limited amounts of developable land and that promoting the productive reuse of idled and underutilized commercial, industrial and mining properties will maximize this valuable resource and foster reuse of sites with existing public infrastructure;

     (2) An entity that specializes in promoting the productive reuse of idled or underutilized commercial, industrial and mining properties will help the state and its citizenry to plan more wisely for sustainable property reuse and economic development efforts;

     (3) An entity created to address and reduce regulatory and economic uncertainty by being a repository of site history and remediation information about formerly used properties can be a benefit to attracting new employers or encouraging businesses to relocate, remain or expand within the state;

     (4) An entity that assists the Department of Environmental Protection with a voluntary land stewardship program for the long- term safeguarding of remediated sites using institutional controls and engineering controls can ensure that the remedy remains protective of human health and the environment;

     (5) An entity that also assists in identifying formerly used properties that are ready for redevelopment and construction within twelve months or less from acquisition and certifies these properties as "project-ready" for specific industry profiles can increase economic development efforts within the state;

     (6) An entity that also acts as a land bank to accept title to formerly used properties as an intermediary step to help seek a purchaser, and ready the properties for reuse through environmental assessment, remediation, building demolition or other efforts, can be a useful ally to the state, local governments, real estate developers and businesses for transacting property conveyances, redevelopment and creating or retaining jobs; and

     (7) The promotion of private investment in our developable land and West Virginia businesses will reduce unemployment by creating new or maintaining existing opportunities for the citizens of this state.
WVC 31 - 21 - 4 §31-21-4. Purpose of article.

     The purpose of this article is to provide for the creation of a special purpose nonprofit corporation with a comprehensive mission to:

     (1) Assist the DEP in utilizing a voluntary land stewardship program for the long-term safeguarding of IEC Sites to ensure that the remedy remains protective of human health and the environment and to facilitate further economic development and reuse opportunities;

     (2) Provide the DEP and other parties with a reliable source of oversight, monitoring and information about IEC Sites under the voluntary land stewardship program;

     (3) Establish a land bank as a legal and financial mechanism to accept title to properties and assist in transforming idled and underutilized properties back to productive reuse;

     (4) Facilitate reuse and redevelopment by authorizing the conveyance of certain properties to a land bank under a voluntary land bank program and assist the state and local governments with the assembly and clearance of title to property in a coordinated manner;

     (5) Promote economic growth by implementing a state certified sites program to identify sites that are ready for construction within twelve months or less and that are certified "project-ready" for specific industry profiles as well as other categories of sites identified for economic development opportunities;

     (6) Provide voluntary programs on a fee or subscription basis with the nonprofit corporation to protect human health and the environment as well as assist with a variety of economic development efforts throughout the state; and

     (7) Prescribe the powers and duties of the nonprofit corporation; provide for the creation and appointment of a board to govern the nonprofit corporation and to prescribe its powers and duties; and to extend protections against certain environmental liabilities to the nonprofit corporation in order to protect it from liabilities created by third parties.
WVC 31 - 21 - 5

PART II. WEST VIRGINIA LAND STEWARDSHIP CORPORATION.

§31-21-5. Creation of the West Virginia Land Stewardship Corporation; powers and limitations.

  (a) The corporation shall be organized as a nonprofit, nonstock corporation under the West Virginia Nonprofit Corporation Act, article two, chapter thirty-one-e of this code. The property thereof is deemed to be held for an area economic development purpose under subdivision fourteen, subsection (a), section nine, article three, chapter eleven of this code.

  (b) The corporation shall apply for recognition of nonprofit exempt status by the United States Internal Revenue Service under one or more charitable purposes within the meaning of section 501(c) of the Internal Revenue Code of 1986, as amended.

  (c) The corporate name for the corporation shall be the "West Virginia Land Stewardship Corporation".

  (d) The corporation shall have all of the powers of a nonprofit corporation as set forth in chapter thirty-one-e of this code.

  (e) Except as otherwise provided in chapter thirty-one-e of this code or in this article, the corporation may do all things necessary or convenient to implement the purposes, objectives and provisions of this article and the purposes, objectives and powers delegated to the board of directors of a nonprofit corporation by other laws or executive orders, including, but not limited to, all of the following:

  (1) Adopt, amend and repeal bylaws for the regulation of its affairs and the conduct of its business;

  (2) Establish the service offerings and related fees for such services under each of the voluntary programs described herein;

  (3) Sue and be sued in its own name and plead and be impleaded, including, but not limited to, defending the corporation in an action arising or resulting from the services, programs and responsibilities arising under this article;

  (4) Solicit and accept gifts, grants, labor, loans, services and other aid from any person, or the federal government, this state or a political subdivision of this state or any agency of the federal government or a state institution of higher education or nonprofit affiliates or an intergovernmental entity created under the laws of this state, or participate in any other way in a program of the federal government;

  (5) Procure insurance against risk and loss in connection with the programs, property, assets or activities of the corporation;

  (6) Invest money of the corporation, at the discretion of the board of directors, in instruments, obligations, securities or property determined proper by the board of directors of the corporation and name and use depositories for its money;

  (7) Employ legal and technical experts, contractors, consultants, agents or employees, permanent or temporary, paid from the funds of the corporation. The corporation shall determine the qualifications, duties and compensation of those it employs;

  (8) Contract for goods and services and engage personnel as necessary, contract with Regional Brownfield Assistance Centers as set out in section seven, article eleven, chapter eighteen-b of this code, and engage the services of private consultants, managers, legal counsel, engineers, accountants and auditors for rendering professional environmental, legal and financial assistance and advice payable from funds of the corporation;

  (9) Create limited liability companies or other sole purpose entities or devices to accept and hold real property as part of administering its programs;

  (10) Study, develop and prepare the reports or plans the corporation considers necessary to assist it in the exercise of its powers under this article and to monitor and evaluate progress under this article; and

  (11) Enter into contracts for the management of, the collection of rent from, or the sale of real property held by the corporation.

  (f) The enumeration of a power in this article may not be construed as a limitation upon the general powers of the corporation. The powers granted under this article are in addition to those powers granted by any other statute or as provided in articles of incorporation filed with the Secretary of State.

  (g) The property of the corporation and its income and operations are exempt from all taxation by this state or any of its political subdivisions. Property owned and leased by the corporation as lessor to a commercial lessee or an industrial lessee is hereby declared to be tax exempt and held by the corporation for a public purpose. A payment in lieu of taxes, payable by the lessee, shall be established for any property so leased, in an amount not less than the property tax otherwise payable on the property. The lessee's leasehold interest therein is hereby declared to be a tax exempt leasehold interest held for a public purpose so long as the payment in lieu of taxes is timely paid. Payments made to any county commission, county school board or municipality in lieu of tax pursuant to such agreement shall be distributed as if the payments resulted from ad valorem property taxation.

  (h) The corporation may not issue tax-exempt financing or issue bonds.

  (i) The corporation does not have the power of eminent domain or the ability to condemn property.

  (j) The exercise by the corporation of powers and duties under this article and its activities under the programs described herein shall be considered a necessary public purpose and for the benefit of the public.

  (k) The corporation is not liable under the environmental acts or common law equivalents to the state or to any other person by virtue of the fact that the corporation is fulfilling the purposes of this article including, but not limited to, providing land stewardship services or accepting title to property under any program established under this article unless:

  (1) The corporation, its employees or agents directly cause an immediate release or directly exacerbate a release of regulated substances on or from a property that is an enrolled site or accepted into the land bank program; or

  (2) The corporation, its employees or agents knowingly and willfully do an action which causes an immediate release of regulated substances or violates an environmental act. Liability pursuant to this article is limited to the cost for a response action which may be directly attributable to the corporation's activities, and only if these activities are the proximate and efficient cause of the release or violation. Ownership or control of the property after accepting title in the land bank program does not by itself trigger liability.

  (l) The corporation shall adopt a code of ethics for its directors, officers and employees.

  (m) The corporation shall establish policies and procedures requiring the disclosure of relationships that may give rise to a conflict of interest. The board of directors of the corporation shall require that any member of the board with a direct or indirect interest in any matter before the corporation disclose the member's interest to the governing body before the board takes any action on the matter.

  (n) The programs that are established under this article and administered by the corporation are voluntary programs. Parties can participate in the land stewardship program, certified sites program and land bank program at their option.

  (o) In the event of a conveyance of property to the corporation, at the discretion of the corporation, the prior owner may be required to post a bond or other type of financial assurance for any potential future remediation, in order to ensure the original owner's liability is maintained.

  (p) The state may contract with the corporation for services for properties for which the state is responsible and may enter into long-term contracts for services that are funded under a trust agreement or provided in an escrow account.
WVC 31 - 21 - 6 §31-21-6. Board of directors.

     (a) The purposes, powers and duties of the corporation shall be exercised by its board of directors. Board meetings shall be chaired by the Governor or his or her designee. The corporation's board shall also consist of the following thirteen members:

     (1) The Governor shall appoint three residents of this state;

     (2) The West Virginia Chamber of Commerce shall nominate three residents of this state for the Governor's consideration, one of whom the Governor shall appoint;

     (3) The West Virginia Manufacturers' Association shall nominate three residents of this state for the Governor's consideration, one of whom the Governor shall appoint;

     (4) The West Virginia Coal Association shall nominate three residents of this state for the Governor's consideration, one of whom the Governor shall appoint;

     (5) The United Mine Workers Association shall nominate three residents of this state for the Governor's consideration, one of whom the Governor shall appoint;

     (6) The West Virginia Environmental Council shall nominate three residents of this state for the Governor's consideration, one of whom the Governor shall appoint;

     (7) The AFL-CIO shall nominate three residents of this state for the Governor's consideration, one of whom the Governor shall appoint;

     (8) The Secretary of the DEP or his or her designee;

     (9) The Secretary of the Department of Commerce or his or her designee;

     (10) One member of the Senate appointed by the Senate President who shall serve as an ex officio nonvoting member; and

     (11) One member of the House of Delegates appointed by the Speaker who shall serve as an ex officio nonvoting member.

     (b) The members appointed by the Governor shall serve terms of four years: Provided, That for the initial appointments the Governor shall designate five to serve for four years each, three to serve for three years each and one to serve for two years. When an appointee resigns, dies or is removed during that person's term, his or her successor shall be appointed for the remaining portion of the unexpired term. Once appointed, a person may be reappointed to successive four-year terms.

     (c) Corporate directors shall serve without compensation, but shall be reimbursed for actual and necessary expenses in accordance with the regulations of the board.

     (d) The corporate directors shall appoint a person to serve as the executive director of the corporation and at the will and pleasure of the board. A member of the board is not eligible to hold the position of executive director.

     (e) Subject to the approval of the board, the executive director shall supervise, and be responsible for, the performance of the functions and programs of the corporation under this article. The executive director shall attend the meetings of the board and shall provide the board of directors with a regular report describing the activities and financial condition of the corporation. The executive director shall furnish the board of directors with information or reports governing the operation of the corporation as the board requires.

     (f) The board may do all other things necessary or convenient to achieve the objectives and purposes of the corporation or other laws that relate to the purposes and responsibilities of the corporation.
WVC 31 - 21 - 7

PART III. VOLUNTARY LAND STEWARDSHIP PROGRAM.

§31-21-7. Voluntary land stewardship program.

     (a) When the voluntary land stewardship program is implemented, remediation parties and site owners of IEC Sites will have the option, for a fee, to participate in this program. The fee shall be established by the corporation for services provided for an enrolled site as that term is defined in section four of this article. The fees once established may be revised from time to time in the discretion of the board.

     (b) The universe of sites or properties covered under this section of this article includes, but is not limited to, those IEC Sites remediated or closed under a federal or state environmental program, including brownfields, underground storage tanks, closed landfills, open dumps, hazardous waste sites, and former mining sites with ongoing water treatment as part of mine reclamation efforts.

     (c) The corporation is further authorized to provide at a minimum the following voluntary land stewardship services for enrolled sites:

     (1) Establish or maintain any ICs by filing the appropriate documents or updating such documents when the site is leased, conveyed, subdivided or when remediation occurs: Provided, That the corporation's responsibilities for those activities are expressly identified in agreements for the IEC Site that will be negotiated when a site is enrolled in the voluntary land stewardship program;

     (2) Conduct physical inspections of the enrolled sites, including inspecting or monitoring any ECs (e.g., media treatment systems, fences, caps and other mechanisms used as part of the remedy at the IEC Site) and site activities to assure that the enrolled sites continue to comply with the IECs, such as maintenance of ECs and inspecting for compliance with restrictions of specific land uses;

     (3) Monitor and operate any required media treatment systems and/or conduct routine surface water, groundwater and or gas monitoring and prepare any monitoring or inspection reports that may be part of the corporation's responsibilities under site enrollment agreements;

     (4) Conduct periodic reviews of the county land records to monitor transfers or deed filings to assure that the records are consistent with the required IECs for the enrolled sites, and provide notices to the clerk of the county commission about the results of monitoring or tracking of such records;

     (5) Develop administrative records concerning the remediation at enrolled sites in an electronic database, respond to inquiries and coordinate the sharing of such data among various stakeholders, including the DEP, current owners, the remediating parties if not the owners, other state or local agencies (such as county and regional economic development authorities), assessors, potential purchasers, landowners and tenants;

     (6) Develop and maintain records and information about enrolled sites for posting on the DEP environmental registry, or any other registry that is used for tracking IECs for IEC Sites in West Virginia and provide for public access to such information; and

     (7) Coordinate and share data with West Virginia Miss Utility, the "One-Call" System, including verifying the location of ECs on enrolled sites, providing information about remediation, and sharing any health and safety plans or soil management plans that may be associated with an enrolled site in order to assist any planned excavation at the enrolled site.
WVC 31 - 21 - 8 §31-21-8. Underwriting.

     The enrollment and acceptance process to participate in the land stewardship program shall be developed to include an underwriting review that focuses on: (1) The nature and extent of contamination; (2) the selected remedy; (3) the type of services selected and duration thereof; and (4) the financial costs and risks associated with fulfilling the services.
WVC 31 - 21 - 9

PART IV. STATE CERTIFIED SITES PROGRAM.

§31-21-9. State certified sites program.

     (a) This article hereby authorizes the establishment of a statewide certified sites program. The program shall consist of the development and preparation of certain site specific decision ready documentation or reports that will enable the expedited property transaction for sites that participate in the certified sites program.

     (b) The objectives of the certified sites program include, but are not limited to:

     (1) Establishing an inventory of identified sites that are ready for development or redevelopment and construction within twelve months or less from the date of acquisition and certify these properties as "project-ready" for specific industry profiles and other categories of developable properties available that can increase economic development efforts within the state;

     (2) Improving the state's competitive edge by giving more certainty in time, steps and costs to businesses expanding or locating within the state;

     (3) Developing standard criteria that most real estate developers or businesses need when selecting a site for development;

     (4) Developing a central source of certified sites and assisting local governments in identifying potential redevelopment properties; and

     (5) Demonstrating that the state is committed to promoting and expediting economic development projects for the benefit of its citizenry.

     (c) The corporation shall issue a site certification if it determines that the decision ready document has been prepared and completed in accordance with the requirements set forth by the corporation. The corporation may require some or all of the following information set forth in section ten of this article based on the site specific circumstances of the property to be certified.

     (d) The issuance of a site certification shall be based on the review and approval of the information submitted to the corporation in an application for the site certification.
WVC 31 - 21 - 10 §31-21-10. Minimum standards for certified sites.

     (a) The corporation shall establish minimum standards that a site must meet to be considered for certification. Minimum standards include, but are not limited to:

     (1) Letter of support from a mayor, county commissioner, or county, regional, or municipal economic development official;

     (2) Site ownership/control:

     (A) Preliminary fifty-year title report and description of liens and encumbrances, unless the corporation determines a shorter period is adequate, or a longer period is necessary, to protect the corporation and a subsequent purchaser of the site;

     (B) Letter from the property owner/option holder stating that the site is for sale/lease. If possible, proposed pricing or transactional requirements with a description of any on-site improvements, the current level of investment, and whether the property can be parceled;

     (C) Acreage; and

     (D) Full legal property description.

     (3) Maps:

     (A) ALTA map;

     (B) Site map showing lot layout, transportation access, roads and likely access points;

     (C) USGS topographical map; and

     (D) Aerial map.

     (4) Phase I environmental site assessment performed by a certified professional within the prior six months, and, if appropriate, any additional environmental site assessments performed by a certified professional within the prior six months. For any properties being remediated, documentation shall be provided about the status and cleanup objectives. For remediated sites, documentation shall be provided about liability protection.

     (5) Wetland delineation demonstrating that impacts to waters of the state will be avoided or a mitigation plan approved by the DEP.

     (6) Water and wastewater infrastructure to the property line with capacity clearly defined, or a demonstration of the ability to construct and pay for the infrastructure up to the property line.

     (7) Transportation infrastructure to the property line, including, but not limited to, the type of roads near the site and whether the roads are local, state or U. S. roads.

     (8) Electric infrastructure to the property line with its capacity clearly identified.

     (9) Natural gas infrastructure to the property line with its capacity clearly identified.

     (10) Water infrastructure to the property line with its capacity clearly identified.

     (11) Sewer infrastructure to the property line with its capacity clearly identified.

     (12) Telecommunications and/or high speed communications infrastructure to the property line with its capacity clearly identified.

     (b) The complete list of certified sites criteria shall be developed into a program application along with appropriate fees for participation as the certified sites program is implemented, and may be revised from time to time as warranted.
WVC 31 - 21 - 11

PART V. LAND BANK PROGRAM.

§31-21-11. Land bank program.

     (a) This article hereby authorizes the establishment of a voluntary state land bank program. Under this program, the corporation is authorized to acquire properties, hold title and prepare them for future use. Prior to acquiring any properties, the corporation shall conduct all appropriate inquiries to determine the environmental conditions or issues associated with a particular property. The corporation shall not acquire title to any property unless all pending liens have been satisfied and released. Liabilities, including, but not limited to, environmental liabilities, shall not pass to the corporation by its acquisition of title. Participation in the land bank program under this article shall not relieve an entity of any of its liabilities.

     (b) The objective of the land bank program is to assist state and local government efforts for economic development by accepting formerly used or developable properties and preparing the properties so they can be conveyed to other parties to locate or expand businesses and create or retain jobs in this state.

     (c) The corporation may acquire by gift, devise, transfer, exchange, foreclosure, purchase or otherwise on terms and conditions and in a manner the corporation considers proper, real or personal property or rights or interests in real or personal property. The corporation may not accept by any conveyance or other action, any liability for prior pollution or contamination liabilities that occurred on the property prior to its conveyance to the corporation.

     (d) Real property acquired by the corporation may be by purchase and sale agreement, lease purchase agreement, installment sales contract, land contract or otherwise as may be negotiated or structured. The corporation may acquire real property or rights or interests in real property for any purpose the corporation considers necessary to carry out the purposes of this article including, but not limited to, one or more of the following purposes:

     (1) Use or development of property the corporation has otherwise acquired;

     (2) To facilitate the assembly of property for sale or lease to any other public or private person, including, but not limited to, a nonprofit or for profit corporation;

     (3) To conduct environmental remediation and monitoring activities.

     (e) The corporation may also acquire by purchase, on terms and conditions and in a manner the corporation considers proper, property or rights or interests in property.

     (f) The corporation may hold and own in its name any property acquired by it or conveyed to it by this state, a foreclosing governmental unit, a local unit of government, an intergovernmental entity created under the laws of this state or any other public or private person.

     (g) All deeds, mortgages, contracts, leases, purchases or other agreements regarding property of the corporation, including agreements to acquire or dispose of real property, shall be approved by the board of directors and executed in the name of the corporation or any single purpose entity created by the board for the transaction.

     (h) All property held by the corporation or a single purpose entity created by the board for a transaction shall be inventoried and classified by the corporation according to title status and suitability for use.

     (i) A document including, but not limited to, a deed evidencing the transfer under this article of one or more parcels of property to the corporation by this state or a political subdivision of this state may be recorded within the office of the county clerk of the county in which the property is located without the payment of a fee.

     (j) The corporation shall notify the county commission and county assessor in the affected county or counties upon receipt of an application for participation in the land bank program.
WVC 31 - 21 - 12 §31-21-12. Preserve property value.

     (a) The corporation may, without the approval of a local unit of government in which property held by the corporation is located, control, hold, manage, maintain, operate, repair, lease as lessor, secure, prevent the waste or deterioration of, demolish and take all other actions necessary to preserve the value of the property held or owned directly by the corporation or by a single purpose entity created by the board for that purpose.

     (b) The corporation may take or perform the following with respect to property held or owned by the corporation or by any special purpose entity created by the board:

     (1) Grant or acquire a license, easement, or option with respect to property as the corporation determines is reasonably necessary to achieve the purposes of this article;

     (2) Fix, charge, and collect rents, fees and charges for use of property under the direct or indirect control of the corporation or for services provided by the corporation;

     (3) Take any action, provide any notice or institute any proceeding required to clear or quiet title to property held by the corporation in order to establish ownership by and vest title to property in the corporation or a special purpose entity created by the board; and

     (4) Remediate environmental contamination on any property held by the corporation.

     (c) Except as the corporation otherwise agrees by agreement or otherwise, on terms and conditions, and in a manner and for an amount of consideration the corporation considers proper, fair and valuable, including for no monetary consideration, the corporation may convey, sell, transfer, exchange, lease as lessor or otherwise dispose of property or rights or interests in property in which the corporation directly or indirectly holds a legal interest to any public or private person for value determined by the corporation.

     (d) The corporation shall be made a party to and shall defend any action or proceeding concerning title claims against property held directly or indirectly by the corporation.
WVC 31 - 21 - 13 §31-21-13. Contaminated property.

     (a) If the DEP determines that conditions on a property transferred to the corporation under this article present an immediate threat to public health, safety and welfare, or to the environment, the corporation may not convey, sell, transfer, exchange, lease or otherwise dispose of the property until after a determination by the DEP that the threat has been remediated and/or eliminated and that conveyance, sale, transfer, exchange, lease or other disposal of the property by the corporation will not interfere with any of the DEP's response activities and will coordinate with the DEP regarding the corporation's activities at the property.

     (b) If the corporation has reason to believe that property held by the corporation may be the site of environmental contamination, the corporation shall provide the DEP with any information in the possession of the corporation that suggests that the property may be the site of environmental contamination.

     (c) If property held directly or indirectly by the corporation is a site impacted by contamination, pollution, hazardous substances, hazardous or other wastes as defined in the environmental acts described in section four of this article, prior to the sale or transfer of the property under this section, the property is subject to all of the following:

     (1) Upon reasonable written notice from the DEP, the corporation shall provide access to the DEP, its employees, its contractors and any other person expressly authorized by the DEP to conduct an investigation and/or response activities at the property. Reasonable written notice may include, but is not limited to, notice by electronic mail or facsimile, in advance of access as the DEP and corporation may agree.

     (2) If the DEP determines it is necessary to protect public health, safety and welfare or the environment, the corporation shall place and record deed restrictions on the property as authorized under state environmental statutes.
WVC 31 - 21 - 14 §31-21-14. Liberal construction.

     This article shall be construed liberally to effectuate the legislative intent and the purposes as complete and independent authorization for the performance of every act and thing authorized by this article. All powers granted shall be broadly interpreted to effectuate the intent and purposes of this article and not as a limitation thereof. The corporation has complete control as if it is a private property owner.
WVC 31 - 21 - 15 §31-21-15. Exemption from taxation.

     The property of the corporation shall be exempt from ad valorem property taxation. Property owned and leased by the corporation as lessor to a commercial lessee or an industrial lessee is hereby declared to be tax exempt and held by the corporation for a public purpose. A payment in lieu of taxes, payable by the lessee, shall be established for any property so leased, in an amount not less than the property tax otherwise payable on the property. The lessee's leasehold interest therein is hereby declared to be a tax exempt leasehold interest held for a public purpose so long as the payment in lieu of taxes is timely paid. Payments made to any county commission, county school board or municipality in lieu of tax pursuant to such agreement shall be distributed as if the payments resulted from ad valorem property taxation. The corporation shall be exempt from the taxes imposed by chapter eleven of this code, except that the corporation shall comply with the employer withholding of tax requirements in sections seventy-one through seventy-six, article twenty-one of said chapter eleven. The corporation shall be exempt from sales and use taxes, business and occupation taxes and all other taxes imposed by a county commission, a municipal corporation or other unit of local government, whether now or hereinafter in effect.
WVC 31 - 21 - 16 §31-21-16. Audits and reports.

     (a) As soon as possible after the close of each year, the corporation shall cause an annual audit to be made by an independent certified public accountant of its books, records, accounts and operations. The person performing this audit shall furnish copies of the audit report to the Governor, the secretary of the DEP and the Joint Committee on Government and Finance of the Legislature.

     (b) The corporation shall report biannually to the Joint Committee on Government and Finance of the Legislature on the activities of the corporation. The first report shall be filed on or before the second Wednesday in January, 2016.
WVC 31 - 21 - 17 §31-21-17. Completed purpose.

     If the corporation has completed the purposes for which the corporation was organized, the board of directors, by vote of at least a majority of a quorum of the directors and with the written consent of the Governor, may provide for the dissolution of the corporation and may provide for the transfer of any property held by the corporation as required by agreement or, if there are no related agreements, then to the DEP or another state agency or to another nonprofit corporation as directed by the DEP.
WVC 31 - 21 - 18 §31-21-18. Conflicts of interest.

     Notwithstanding any other provision of this article to the contrary, officers and employees of the corporation and its board of directors may hold appointments to offices of any other corporations or businesses and be corporate directors or officers or employees of other entities but are prohibited to be a party or otherwise participate in the transfer of real property and funds from the corporation to the corporations or businesses for which they serve.
WVC 31 - 21 - 19 §31-21-19. No waiver of sovereign immunity.

     Nothing contained in this article may be determined or construed to waive or abrogate in any way the sovereign immunity of the state or to deprive the nonprofit corporation created pursuant to this article, its board of directors, or any officer or employee thereof of sovereign immunity.
WVC 31 - 21 - 20 §31-21-20. No obligation of the state.

     Obligations of the corporation are not debts or obligations of the DEP or the state.
Note: WV Code updated with legislation passed through the 2013 1st Special Session
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