ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4447
(By Mr. Speaker, Mr. Kiss, and Delegates Martin, Michael,
Staton, Mezzatesta, Varner and Ashley
)
[Passed March 14, 1998; in effect ninety days from passage.]
AN ACT to amend and reenact sections two, eight, ten, eleven,
thirteen and sixteen, article fifteen-a, chapter thirty-one
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to further amend said article by
adding thereto eight new sections, designated sections
seventeen, eighteen, nineteen, twenty, twenty-one, twenty- two, twenty-three and twenty-four; and to amend and reenact
section two, article fifteen-b of said chapter, all relating
to infrastructure development generally; defining
infrastructure revenue bond and needs of the project
sponsor; requiring application of mandatory minimum end user
rate; establishing uniform statewide percentage of the
median household income in a particular geographic area;
consideration of surveys of income of households; division
of funding assistance among regions; prohibiting water
development board members and water development authority
officers from receiving any benefit or distribution from
West Virginia infrastructure revenue debt service fund; exceptions; increasing portion of dedicated tax to be
deposited into infrastructure government obligation debt
service fund; authorizing water development authority to
issue infrastructure revenue bonds; restrictions; permitted
uses of revenue bond proceeds; required documentation from
infrastructure council; creation of West Virginia
infrastructure revenue debt service fund; sources of
funding of revenue debt service fund; purposes for which
revenue debt service fund may be used; procedures for the
issuance of revenue bonds; revenue bond requirements;
authorized revenue bond provisions and agreements;
procedures for certification of deficiency in reserves
pledged for payment of revenue bonds; liability of water
development board members and water development authority
officers; trust agreements required to secure revenue bonds;
required and authorized trust agreement provisions;
requirements of depositories of funds; remedies of
bondholders; legality of investments in revenue bonds;
redemption and refunding of revenue bonds; providing that
revenue bonds do not constitute debt or pledge of state;
exemption from taxation; and increasing limitation on amount
of outstanding government obligation bonds.
Be it enacted by the Legislature of West Virginia:
That sections two, eight, ten, eleven, thirteen and sixteen,
article fifteen-a, chapter thirty-one of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that said article be further amended by
adding thereto eight new sections, designated sections seventeen,
eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-three
and twenty-four; and that section two, article fifteen-b of said
chapter be amended and reenacted, all to read as follows:
ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT
COUNCIL.
§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) "Waste water facility" means all facilities, land and
equipment used for or in connection with treating, neutralizing,
disposing of, stabilizing, cooling, segregating or holding waste
water, 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.
§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.
§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 pre-application 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.
§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 council for community and
economic development, or its successor, for review,
recommendation and approval regarding infrastructure project
funding.
§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.
§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 the first day of July, one thousand nine
hundred ninety-five, the first sixteen million dollars 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 the first day of July, one thousand
nine hundred ninety-eight, the first twenty-four million dollars
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.
(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 said section
twenty-a.
(d) On or before the first day of May of each year,
commencing the first day of May, one thousand nine hundred
ninety-five, 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.
§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.
§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.
§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.
§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.
§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.
§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.
§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.
§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.
ARTICLE 15B. INFRASTRUCTURE BONDS.
§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.