COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 740
(By Senators Unger, Fanning, White, Deem and Facemyer)
____________
[Originating in the Committee on Finance;
reported March 28, 2005.]
_____________
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §5B-4-1, §5B-4-2,
§5B-4-3, §5B-4-4, §5B-4-5, §5B-4-6, §5B-4-7, §5B-4-8, §5B-4-9,
§5B-4-10, §5B-4-11, §5B-4-12, §5B-4-13, §5B-4-14, §5B-4-15,
§5B-4-16, §5B-4-17, §5B-4-18, §5B-4-19, §5B-4-20, §5B-4-21 and
§5B-4-22, all relating to conducting an inventory and
developing coordinated deployment and operation of technology
infrastructure within this state; legislative findings and
purpose; definitions; reporting requirements; rule-making
authority; exemptions from disclosure of confidential
information; creating Joint Legislative Oversight Commission
on Transportation and Infrastructure; creating Innovation
Center; appointment and qualifications of Chief Officer of
Innovation Center; powers and duties of Innovation Center;
reporting requirements; establishment of task force; providing technical and funding assistance for innovation; authorizing
Innovation Center to engage in consulting services for fee,
contractual and joint venture agreements; authorizing local
government to enter into public-private partnerships;
authorizes issuance of bonds; publication and hearing
requirements related to bonds; bonds not an indebtedness of
local government; redemption and form of bonds, exemption from
taxation of bonds; establishment of sinking fund, transfer of
balance of net revenues; enabling local government to
establish rates of service; and liberal construction of
article.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §5B-4-1, §5B-4-2, §5B-
4-3, §5B-4-4, §5B-4-5, §5B-4-6, §5B-4-7, §5B-4-8, §5B-4-9, §5B-4-
10, §5B-4-11, §5B-4-12, §5B-4-13, §5B-4-14, §5B-4-15, §5B-4-16,
§5B-4-17, §5B-4-18, §5B-4-19, §5B-4-20, §5B-4-21 and §5B-4-22, all
to read as follows:
ARTICLE 4. ELECTRONIC TELECOMMUNICATION OPEN INFRASTRUCTURE ACT.
§5B-4-1. Legislative findings; Purpose.
(a) This article is known as the Electronic Telecommunication
Open Infrastructure Act and shall be referred to as "ETOPIA".
(b) The Legislature finds and declares that the internet
revolution is driving today's economy and that information technology offers increased economic opportunities, higher living
standards, more individual choices and wider and more meaningful
participation in government and public life. The past decade has
brought considerable advancement in digital communications and the
way people communicate worldwide. Accordingly, digital
communications in general, and the internet in particular, are
becoming increasingly important to the efficiency and effectiveness
of private and public sector entities. With the advent of the
internet and its various commercial, educational, medical and
cultural applications, the ability of people in all parts of this
state to access the internet has become an important component in
the ability of the state and its people and institutions to remain
competitive in the information-based global economy. Internet
access is a major concern for rural health care. Telemedicine
gives health care providers the ability to connect with patients at
home and to share data with medical experts in academia and large
urban hospitals in this state and country, thereby greatly
enhancing the level of health care in these areas. Internet access
is also a concern for rural education. Access to the internet will
complement the learning experiences of children in rural areas by
giving them a window to the world and allowing them to gather data
from the information superhighway which would not otherwise be
available to them. Moreover, internet access will give rural
children planning to attend college a direct connection to academic information provided online by institutions of higher education in
this state and throughout this country. The benefits of the
internet are useless to people and businesses who are neither
connected to nor able to access the information superhighway.
Advanced ultra-high capacity network infrastructure will attract
investment capital to the cities and towns of West Virginia, in
particular those that house our research institutes, universities,
colleges and community colleges. Intergovernmental cooperation in
public-private partnership is an effective method to approach
common development where high technology services are not available
and will not be available in the reasonably near future through the
efforts of private industry. Implementing a coordinated approach to
advanced infrastructure will connect West Virginia directly to
global markets and enable West Virginia to attract and retain high-
caliber knowledge workers and bypass other regions of the country
in prosperity and economic expansion. Further, another public need
is to develop and implement technology infrastructure that supports
homeland security and public safety and continuity of government in
the event of emergencies. In particular, first responders
increasingly require ubiquitous wireless broadband coverage for
safety, security and public health applications. The Legislature
finds and declares that efficient and comprehensive development of
technology infrastructure is linked to the coordinated deployment
and operation of information systems, information technology, information equipment and telecommunications systems and that the
management, goals and purposes of government are furthered by the
completion of an inventory of information systems, information
technology, information equipment, telecommunications related
services and systems and generally technology infrastructure and
linked information systems across government. The Legislature
further finds and declares that technology infrastructure is
essential to business and economic development within the state.
Therefore, it is a purpose of this article to create, as an
integral part of the West Virginia Development Office, the
Innovation Center with the authority to advise, make
recommendations, coordinate research and development efforts
throughout the state and build sustainable communities through
technology infrastructure. The Legislature further finds technology
infrastructure promotes economic development. Technology
infrastructure can make distance far less important than it
historically has been, entrepreneurs can choose to live in small
towns and rural communities and still engage in global data
transmission marketplace. Advanced infrastructure can allow
products and services developed in our private industry and our
research institutes to reach a global marketplace and for capable
entrepreneurs, engineers and executives to build business and
careers in our state. Advanced infrastructure can also attract new
businesses and industries to our state. Advanced, ultra high-capacity infrastructure can also provide services more efficiently,
lowering the costs for consumers and providing a wider array of
communication, education, health, safety, security, business,
government and cultural services. The Legislature finds that
advanced technology infrastructure is vital if West Virginia
communities are to survive and prosper in the global economy. The
Legislature finds that while basic internet services are available
in many cities and towns in West Virginia, there are rural areas
and communities where broadband service are lacking, and that
ultra-high capacity infrastructure required for major economic
expansion not ubiquitous. The Legislature hereby further finds and
declares that, despite advances that have made in technology
deployment by private industry, problems of implementation of
technology infrastructure so transcends the boundary lines of
governmental units that no single unit can plan for the solution of
these problems without affecting other units of government; that
intergovernmental cooperation in public-private partnership is an
effective method to approach common development; where advanced
services are not available and will not be available in the
reasonably near future through the efforts of private industry; and
that assistance of the State may be needed to attract investment in
West Virginia and to make the most effective use of local, state,
federal and private resources. It is therefore the purpose of this
article to: (1) Ensure that technology infrastructure and related services are provided and provide the widest possible diversity of
information and resources to the general public; (2) advance the
exercise of rights under the First Amendment of the Constitution of
the United States; (3) enhance the development and widespread use
of technological advances; (4)achieve the objectives and policies
necessary for the orderly growth and development of the state; (5)
allow, in the first instance, that broadband and other advanced
services be provided by the efforts of private industry; (6) enable
government to partner with private entities where there has been a
failure of private concerns to provide broadband, wireless, ultra-
high capacity infrastructure or advanced services; (7) involve
government through public-private partnership, but never in
competition with like or substitute services already available at
competitive rates through the singular investments and other
efforts of private industry;(8)provide information and develop a
knowledge base for government entities and private industry to help
ensure the success of advanced technology infrastructure ventures
enabled through public-private partnerships; (9) enhance the effort
of private industry without interfering with its ability to provide
services over the current capacity or in planned capacities for the
reasonably foreseeable future; and (10) facilitate
intergovernmental cooperation and public-private partnerships to
accomplish the purposes of this article where closed markets have
failed to serve the people of West Virginia.
§5B-4-2. Definitions.
The following terms, wherever used or referred to in this
article, shall have the following meanings unless a different
meaning clearly appears from the context:
(a) "Information equipment" includes central processing units,
front-end processing units, miniprocessors, microprocessors and
related peripheral equipment such as data storage devices,
networking equipment, services, routers, document scanners, data
entry equipment, terminal controllers, data terminal equipment,
computer-based word processing systems other than memory
typewriters;
(b) "Information systems" mean computer-based information
equipment and related services designed for the automated
transmission, storage, manipulation and retrieval of data by
electronic or mechanical means;
(c) "Information technology" means data processing and data
communications hardware, software, services, supplies, personnel,
maintenance and training and includes the programs and routines
used to employ and control the capabilities of data processing
hardware;
(d) "Local government" means any municipality, county, metro
or regional government, or entities or affiliates of such entities
in the State of West Virginia;
(e) "Person" means an individual, partnership, association, company, trust, organization, or corporation;
(f) "Public body" means a department, division, agency,
bureau, board, commission, court in its nonjudicial functions only,
council, institution, spending unit, authority or other
instrumentality thereof of whatever description of the State of
West Virginia, or any county court or tribunal or commission in
lieu thereof, or any county board of education, or any incorporated
municipality, metro or regional government, or any other political
subdivision; and
(g) "Technology infrastructure" means information systems,
information technology, information equipment and facilities,
equipment, lines, and services designed for or used for the
transmission, emission or reception of signs, signals, writings,
images or sounds of intelligence of any nature by wire, radio,
microwave, or other electromagnetic or optical systems, related
hardware, software, and programming, and specifically including,
but not limited to, all features, facilities, equipment, systems,
functions, programming, and capabilities, and technical support
used in providing or related to:
(1) Cable service (as defined in 47 U. S. C. §522(6));
(2) Telecommunications service (as defined in 47 U. S. C.
§153(46);
(3) Information service (as defined in 47 U. S. C. §153(20);
(4) Advanced services (as defined in 47 CFR 51.5);
(5) Broadband service; or
(6) Internet Protocol enabled services, however classified by
the Federal Communications Commission.
§5B-4-3. Technology Infrastructure needs assessment and inventory;
agency and local government cooperation; information
gathering; reporting requirements; rule-making
authority.
(a) The state encourages the coordinated deployment and
operation of technology infrastructure for present and future use.
Therefore, it is necessary for the state to determine, and maintain
an ongoing, continually updated record of, the nature and extent of
its technology infrastructure comprising information systems,
information equipment, and information technology, the demands on
its technology infrastructure, and those governmental entities
which use or desire to use the resources of the technology
infrastructure providing information services, media services,
advanced services, broadband services, internet, internet protocol
enabled services, telecommunications services or similar services
or support.
(b) The Secretary of the Department of Administration shall
develop systems and processes for maintaining accurate information
on the state of the technology infrastructure in the state on an
ongoing basis and conduct an infrastructure resources survey of the
deployment and operation of technology infrastructure in this state. The Secretary shall determine the form and format of the
information submitted, including the use of electronic submissions.
(c) To facilitate the infrastructure resources survey the
Secretary of the Department of Administration, in consultation with
the Chief Officer of the Innovation Center established in this
article, shall propose emergency and legislative rules in
accordance with article three, chapter twenty-nine-a of this code.
These rules may include: (1) The manner of reporting the
information; (2) promulgation of a form or forms for reporting
purposes; (3) a means of providing training to individuals
responsible for the completion and submission of the information on
the proposed form; (4) a means of reporting back to individual
participating public bodies, from time to time, at the request of
a public body, on findings specific to that body to allow the
public body to evaluate independently the information provided; (5)
a limitation that the information is to be used solely for the
purposes of this article; (6) safeguards to protect the
confidential information as provided in section four of this
article; (7) methodology for collection of information and the
analysis of the information; and (8)protocols for an annual update
of the infrastructure resources survey including information
collection, analysis and reporting thereof by the Department of
Administration.
(d) Every public body shall complete an infrastructure resources survey no later than the first day of October, two
thousand five and a survey each year thereafter as provided in
rules promulgated pursuant to this section.
(e) The Secretary shall file annually a report with the joint
legislative oversight commission on transportation and
infrastructure created in section five of this article. The report
shall generally advise the joint oversight commission on
transportation and infrastructure about the deployment and
operation of technology infrastructure in this state and to make
recommendations on policy and statutory changes that may be needed.
The report shall include the following: (1) A discussion of the
connectivity, priorities, and interoperability of the technology
infrastructure owned, leased or used by public bodies; (2) a
discussion of the technology infrastructure that is owned, leased,
operated, or used by the public bodies of the state; (3) a
discussion of technology infrastructure as it affects homeland
security, public safety and health, systems reliability and
providing continuity of government operations; (4) a discussion of
the technology infrastructure identifying potential market demand
areas where expanded resources may be expected; (5) a discussion of
practices or suggestions to coordinate development of
infrastructure related to technology infrastructure and the
deployment of services between the public bodies through the
coordinated delivery of these systems; and (6) any other discussion that may be beneficial in adequately assessing technology
infrastructure.
(f) To the extent technology infrastructure information is
readily provided by private persons or otherwise available, the
Secretary shall utilize and incorporate that data to fulfill the
reporting requirements of this section.
(g) The provisions of this section shall be of no force or
effect after the thirty-first day of December, two thousand eight.
§5B-4-4. Confidential information; exemption from disclosure.
(a) Information submitted by a public body as part of the
survey that may be a trade secret or otherwise confidential shall
be identified by that body as confidential information. The public
body claiming confidentiality shall provide written justification
to the Secretary at the time the information is submitted stating
the reasons for confidentiality and why the information should not
be released.
(b) In addition to records or documents considered
confidential under this code, confidential information means
records, reports or information, or a particular portion or any
combination or aggregation thereof, that if made public would
present a threat to the safety and security of any system or
component relating to the technology infrastructure and related
systems.
(c) Information designated as confidential and the written justification shall be maintained in a file separate from the
general records related to the public body. The confidential
information will be exempt from disclosure requirements under this
code.
(d) Information designated as confidential may be released to
the Department of Administration, its employees and agents when
compiling and analyzing the infrastructure resources survey
information as necessary to develop the report required by this
article. Any individual receiving information designated
confidential shall protect the information as confidential.
§5B-4-5. Joint legislative oversight commission on transportation
and infrastructure.
The President of the Senate and the Speaker of the House of
Delegates shall each designate five members of their respective
houses, at least two of whom shall be a member of the minority
party, to serve on a joint legislative oversight commission charged
with immediate and ongoing oversight of transportation and
infrastructure matters, specifically including, but not limited to,
the ongoing oversight of the management and coordination of the
deployment and operation of infrastructure related to technology.
This commission shall be known as the "Joint Legislative Oversight
Commission on Transportation and Infrastructure" and shall
regularly investigate and monitor all matters relating to
transportation and infrastructure.
§5B-4-6. Innovation center; chief officer; appointment and
qualifications.
There is hereby created an office within the West Virginia
Development Office called the Innovation Center. There shall be a
chief officer of the Innovation Center, who shall be appointed by
and shall serve at the will and pleasure of the Governor. The
chief officer shall have knowledge in the fields of information
technology and telecommunications, business development in these
fields and an understanding of the special demands upon
entrepreneurship, industry, commerce, culture and public-private
partnerships.
§5B-4-7. Powers and duties Innovation Center.
(a) The primary responsibility of the Innovation Center is to
foster and support economic development and the advancement and
commercialization of new and emerging technologies.
(b) The Innovation Center has the authority and power to
provide consulting and additional services, including, but not
limited to, evaluation of technology, verification and assessment
of market applications, grant administration for any person engaged
in public-private collaborations with the West Virginia Development
Office pertaining to technology advancement and commercialization
activities and research into new areas of economic development
relating to technology, technology infrastructure and
telecommunications.
(c) The Innovation Center may receive and accept from any
public body or person or entity of any nature whatsoever grants to
be expended in accomplishing the objectives of this article and to
receive and accept from the state appropriations and grants from
any public body and from any other source, aid or contributions of
either money, property or other things of value to be held, used
and applied only for the purposes for which the grants and
contributions may be made or collect fees for consulting services
rendered to any public body.
(d) The Innovation Center may accept and expend any gift,
grant, contribution, bequest, endowment or other money for the
purposes of this article and to make a maximum effort to encourage
external support for the Center's programs. Any transfer of
endowment or other assets to the Center shall be formalized in a
memorandum of agreement to assure, at a minimum, that any
restrictions governing the future disposition of funds are
preserved.
(e) The Secretary of the Department of Commerce may promulgate
rules to fulfill the purposes of this section and to carry into
effect the purpose and scope of the Innovation Center. Any new
rules promulgated by the Secretary shall be promptly submitted to
the Joint Commission created in section five of this article.
These rules are not subject to the provisions of chapter twenty-
nine-a of this code, but shall be filed with the Secretary of State.
§5B-4-8. Need for study; reporting requirements; information
gathering; appointment and duties of task force.
(a) The Innovation Center shall enhance well-being,
prosperity, economic growth and community development through the
ongoing study and research into and development of best known
methods regarding the management practices, human factors and
cultural changes related to the implementation, operation and
utilization of technology, technology infrastructure, and related
services. For the purposes of this section, best known methods
refers to plans that outline strategies and activities designed to
continue, diversify or expand the economic base of the state as a
whole, create jobs, develop a highly capable work force, enhance
productivity, facilitate business access to capital, including
venture capital and capital markets, advertise and market the
resources offered by the state with respect to the technology needs
of business and industry, facilitate cooperation among state
government, entrepreneurship efforts, public-private partnerships,
universities and colleges and leverage funding from sources other
than the state, including federal and private sources.
(b) The Chief Officer of the Innovation Center shall serve as
the Chairman of the task force required by this section. The
Governor shall appoint the remaining members of the task force no
later than first day of June, two thousand five, and the remaining members of the task force are to serve at the governor's will and
pleasure. The task force is to be comprised of an official or
employee of a municipality in which the rapid advancement of
technology infrastructure and services could expand economic
opportunity, a representative of a research university with an
active role in entrepreneurial and innovating technology
development and commercialization, a county commissioner or his or
her designee in a county, in which the rapid advancement of
technology infrastructure and services could expand economic
opportunity, a representative of the Public Service Commission or
the staff of the Public Service Commission, the Director of the
Consumer Advocate Division of the Public Service Commission, a
representative of a nonrural exchange carrier as defined by the
rules and regulations of the Federal Communications Commission, a
representative of a rural exchange carrier as defined by the rules
and regulations of the Federal Communications Commission, a
representative of a incumbent local exchange carrier as defined by
the rules and regulations of the federal communications commission,
a representative of the cable service industry, a provider of
advanced services that require ultra-high capacity infrastructure.
(c) The task force shall study whether the best known methods
in private industry and public policy to deploy and utilize
technology infrastructure in those areas of the state where
competitive or advanced services to the state that have proven beneficial in other areas around the world and that reasonably and
practically can be deployed in those areas of the state that where
the population would most benefit from the services. Upon
completion of a study of those best known methods, the Chief
Officer shall file an initial, preliminary report with the Joint
Legislative Oversight Commission on Transportation and
Infrastructure created in section five of this article no later
than the first day of November, two thousand five. The report
shall include the following: (1) A discussion that outlines the
efforts of private industry to date, the efforts and investment
that might be expected of private industry in the reasonably
foreseeable future, sources of capital for expanded efforts and
cost of capital for such investments; (2) a discussion that
outlines strategies and activities designed to continue, diversify
or expand the resources offered by the state with respect to the
technology needs of business and industry in a manner that is
practical and affordable, and furthers the efforts of private
industry; (3) a discussion that outlines strategies to facilitate
cooperation among state government, local government,
entrepreneurship efforts, public-private partnerships, colleges and
universities, with respect to the technology needs of business and
industry for services that are not available through like or
substitute services of private industry and that would not be
available in the reasonably foreseeable future without the opening up of the market; (4) a discussion of the management and
utilization of technology infrastructure identifying potential
growth areas where expanded resources may be expected; (5) a
discussion of practices or methods to coordinate development and
utilization of technology infrastructure and the deployment of
technology infrastructure and related technology through the
coordinated delivery of these systems in a manner that favors and
encourages private investment; and (6) any other information that
may be beneficial in adequately assessing technology available in
determining the need for and the preparation of technology
infrastructure plans in a manner that favors and encourages private
investment.
(d) The Chief Officer shall, based upon the annual written
findings of the task force, report annually to the Joint Oversight
Commission on Transportation and Infrastructure to advise the
Commission about the deployment and operation of technology
infrastructure in this state and to make recommendations on policy
and statutory changes that may be needed, in the format and under
the criteria outlined in subsection (c) of this section.
(e) In developing its study, the Innovation Center shall
consider input from private industry and resources and technical
support available through other agencies, both public and private,
including, but not limited to, the state college and university
systems, the West Virginia Housing Development Fund, the West Virginia Economic Development Authority, the West Virginia
Parkways, Economic Development and Tourism Authority, the West
Virginia Chamber of Commerce, West Virginia Jobs Investment Trust,
venture capital funds of which the State of West Virginia is a
limited partner, regional planning and development councils,
regional partnership for progress councils and state
appropriations.
§5B-4-9. Innovation Center to provide technical and funding
assistance for innovation; consulting services;
contractual and joint venture agreements.
(a) The Innovation Center may provide assistance, including
funding assistance to develop technology infrastructure, and
related technology through a matching grant program. The Innovation
Center shall establish criteria for awarding matching grants within
the limits of funds appropriated by the Legislature for the program
or as available from other sources.
(b) The Innovation Center may provide technical assistance,
including consulting services for a fee to one or more public
bodies pertaining to the development of technology and technology
infrastructure.
(c) The Innovation Center is authorized to enter into
contractual or joint venture agreements with one or more persons
and public bodies pertaining to the development of technology and
technology infrastructure provided the agreements may not be considered a debt of the state or a pledge of the credit of the
state.
§5B-4-10. Authority of public-private partnerships to provide
cable services, telecommunications services,
information services, advanced services, broadband
services, internet protocol enable services, wireless
and broadband internet network services; legislative
rules to be proposed by the Secretary of the Commerce
Department in consultation with the Public Service
Commission and West Virginia Infrastructure and Jobs
Development Council.
(a) Local government may be authorized and empowered to enter
into public-private partnerships to construct, operate or
provide:(1) Cable service (as defined in 47 U. S. C. §522(6);(2)
telecommunications service (as defined in 47 U. S. C. §153(46);(3)
information service (as defined in 47 U. S. C. §153(20);(4)
advanced services (as defined in 47 CFR 51.5);(5) broadband
service;(6) internet protocol enabled services; or(7) wireless and
broadband internet network services only under the conditions set
forth in legislative rules to be proposed under this section by the
Secretary of the Department on Commerce, in consultation with the
Public Service Commission and the West Virginia Infrastructure and
Jobs Development Council and only with the prior authorization of
the Secretary of the Commerce Department.
(b) On or before the first day of January, two thousand six,
the Secretary of the Department of Commerce, in consultation with
the Public Service Commission and the West Virginia Infrastructure
and Jobs Development Council, shall in accordance with the
provisions of article three, chapter twenty-nine-a of this code
propose rules governing the conditions under which public-private
partnerships may provide any or all of the enumerated powers in
subsection (a) of this section where competition is stifled and
open markets are required to provide enhanced services in the
reasonably foreseeable future. Those rules may not be filed as
emergency rules. In those rules, the Secretary shall promote the
purposes of this article, and shall include the following:
(1) Requirements that the Secretary make a specific finding
that market forces have failed and that private industry cannot be
expected to provide the proposed services in the foreseeable
future;
(2) Requirements that the Secretary make a specific finding
that public demand and benefits exist or are reasonably anticipated
to develop to support the public-private partnership's provision of
the service and to ensure that any system project is on strong
economic grounds;
(3) Requirements that the system project proposed by the
public-private partnership is otherwise reasonable and in the
public interest;
(4) Requirements governing the ownership of the technology
infrastructure system, access company, management company and the
services' companies that operate any of the assets providing the
service or the services themselves and governing the assumption of,
risk or benefit from rewards of the system project;
(5) Requirements governing the managerial and financial
responsibility of the services public-private partnership, the
financial information on the proposed system project, including
projected revenues, expenses, capital investment and other
financial factors, the facility plan and feasibility study, any
proposed bonds and ordinances, funding sources, financial sources,
the business plan for the system project, engineering plans and
drawings, and any other information that the Secretary may require
to review an application for a system project proposed by a public-
private partnership;
(6) Requirements that the public-private partnership comply
with the applicable service level requirements and other
regulations applicable to the technology infrastructure system or
services;
(7) Requirements governing notice and hearing upon the
application of the public-private partnership to provide service
authorized by this section, including procedures for allowing
intervention by interested parties, including private industry and
labor organizations;
(8) Requirements governing any public bonds or other public
financing consistent with the bond provisions of this article;
(9) Requirements governing tax credits and other public
financing related to a proposed system project;
(10) Requirements that exempt from the provisions of this
section technology infrastructure or services used exclusively for
the purposes of local government in its governmental capacity,
homeland security or for the purposes of providing continuity of
governmental operations in the event of emergencies but otherwise
promote the efficient delivery of technology infrastructure;
(11) Requirements that local governments select private
partners by competitive bid, including requirements compliance with
articles one-c and five-a, chapter twenty-one of this code;
(12) Requirements that promote diversity in the supply of
existing and further advance technology infrastructure, services,
and products;
(13) Requirements that promote efficient delivery of
technological advances and new services throughout the state in
order to improve the health, safety, general welfare and quality of
life all state residents and businesses; and
(14) Any other requirements that the Secretary may find to be
reasonable and in the public interest.
§5B-4-11. Payment of preliminary expenses of surveys, etc.
All necessary preliminary expenses actually incurred by the local government in the making of surveys, estimates of costs and
of revenue, employment of engineers or other professionals or
agents, the giving of notices, taking of options and all other
expenses of any nature, necessary to be paid prior to the issuance
and delivery of the bonds authorized by this article may be met and
paid out of the general funds of the local government not otherwise
appropriated:
Provided, That the fund or funds of the local
government from which payments are made may be fully reimbursed and
repaid by the governing body out of the proceeds of the sale of
bonds hereinafter provided for or other monies available to the
technology infrastructure system.
§5B-4-12. Ordinance or resolution necessary before acquisition or
construction of technology infrastructure.
Before any local government shall issue bonds to finance the
construction, acquisition or improvements to the technology
infrastructure system under section ten of this article, the
governing body of the local government shall enact an ordinance,
adopt a resolution, or issue an order which shall: (a) Set forth a
brief and general description of the technology infrastructure
system; (b) order the construction or acquisition of the technology
infrastructure system; (c) direct that revenue bonds of the local
government shall be issued pursuant to this article in an amount
found necessary to pay all or a portion of the cost of the
technology infrastructure system; and (d) contain other provisions as necessary. Each ordinance, resolution, or order shall be passed
on first reading by the governing body at a meeting duly noticed
and held.
§5B-4-13. Publication and hearing upon ordinance, resolution or
order.
After the ordinance, resolution, or order is passed on first
reading, an abstract of the ordinance, resolution, or order,
determined by the governing body of the local government to contain
sufficient information as to give notice of the contents of the
ordinance, resolution, or order, together with the following
described 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
publication shall be the county where the technology infrastructure
system will be located, and said notice shall be also provided to
the Secretary of the Department of Administration. The notice
shall state that the ordinance, resolution or order has been passed
on first reading and that the local government contemplates the
construction or acquisition of the improvements described in the
ordinance, resolution or order and that the local government
contemplates the issuance of the bonds described in the ordinance,
resolution, or order and that any person interested may appear
before the governing body upon a certain date, which shall not be
less than ten days subsequent to the first date of publication of the abstract and notice which shall not be prior to the last date
of publication of the abstract and notice and present protests. At
the hearing all objections and suggestions shall be heard and the
governing body shall take action as it considers proper.
§5B-4-14.
Cost of technology infrastructure system pertaining to
the issuance of bonds authorized by the article.
The cost of acquisition, construction and improvements to the
technology infrastructure system is considered to include the cost
of acquisition or construction thereof, the cost of all property,
rights, easements, and franchises considered necessary or
convenient and for the improvements determined upon as provided in
this article, interest upon bonds prior to and during construction
or acquisition and for six months after completion of construction
or of acquisition of the improvement last mentioned, a reserve
account for any bonds, engineering and legal expenses, expense for
estimates of cost and of revenues, expenses for plans,
specifications and surveys, other expenses necessary or incident to
determining the feasibility or practicability of the enterprise,
administrative expense, operation and maintenance expenses for the
technology infrastructure system both during construction and for
a period of not more than twelve month after completion of
construction, and other expenses as necessary or incident to the
financing herein authorized and the construction or acquisition of
the technology infrastructure system and the placing of the technology infrastructure and service in operation and the
performance of the things herein required or permitted in
connection with any thereof.
§5B-4-15. Bonds not indebtedness of local government.
Any bonds issued under this article may not be a corporate
indebtedness of the local government, within the meaning of any
statutory or constitutional limitations. All the details of the
bonds not set forth by this article shall be determined by
ordinance, resolution or order of the local government.
§5B-4-16. Redemption of bonds; statement on face of bond;
negotiability; exemption from taxation; registration;
execution; sale; disposition of surplus proceeds;
additional and temporary bonds.
Revenue bonds shall be payable at any time, and shall mature
at any time or times determined by ordinance, resolution, or order.
The bonds may be made redeemable before maturity at the option of
the local government. The principal and interest of the bonds may
be made payable in any lawful medium and said bonds shall be
registered. The ordinance, resolution or order shall fix the
denomination or denominations of the bonds and the place or places
of payment of the principal and interest thereof, which may be at
any bank or trust company within or without the state or the West
Virginia Municipal Bond Commission. The bonds shall contain a
statement on their face that the local government shall not be obligated to pay the same or the interest thereon except from the
special fund provided from the net revenues of the technology
infrastructure system. All bonds shall be and are hereby declared
to have all the qualities and incidents of, negotiable instruments
under the Uniform Commercial Code of the state. The bonds shall be
exempt from all taxation, state, county and municipal. The bonds
shall be executed by the proper legally elected or duly appointed
officers of the local government, and be sealed with the corporate
seal of the local government, and in case any of the officers whose
signatures appear on the bonds or coupons shall cease to be
officers, before delivery of the bonds, the signatures shall
nevertheless be valid and sufficient for all purposes the same as
if they had remained in office until delivery. The bonds shall be
sold at a price not lower than a price, which when computed upon
standard tables of bond values, will show a net return of not more
than thirteen percent per annum to the purchaser upon the amount
paid therefor, and the bonds may be sold in one or more series. If
the proceeds of the bonds, by error of calculation or otherwise,
shall be less than the cost of the technology infrastructure
system, additional bonds may in like manner be issued to provide
the amount of the deficit and, unless otherwise provided in the
ordinance, resolution, or order authorizing the issuance of the
bonds first issued or in the trust indenture hereinafter
authorized, is considered to be of the same issue and shall be entitled to payment without preference or priority of the bonds
first issued. Prior to the preparation of the definitive bonds,
temporary bonds may under like restrictions be issued with or
without coupons, exchangeable for definitive bonds upon the
issuance of the latter.
§5B-4-17. Additional bonds to extend or improve technology
infrastructure system, equal priority with original
bonds; application of revenue from bonds; securing
bonds by trust indenture.
(a) The governing body of the local government may provide by
ordinance, resolution or order authorizing the issuance of the
bonds authorized by this article or in the trust indenture
hereinafter referred to, that additional bonds may thereafter be
authorized and issued, at one time or, from time to time, under
limitations and restrictions as set forth in the ordinance,
resolution, order or trust indenture, for the purpose of extending
or improving the technology infrastructure system when considered
necessary, the additional bonds to be secured and be payable from
the revenues of the technology infrastructure system equally with
all other bonds issued pursuant to the ordinance, resolution or
order without preference or distinction between any one bond and
any other bond by reason of priority of issuance or otherwise.
(b) All moneys received from any bonds issued pursuant to this
article shall be applied solely to the payment of the cost of the construction, acquisition, betterments or improvements to the
technology infrastructure system, or to the appurtenant sinking
fund, reserve account, or operation and maintenance fund, and there
shall be and hereby is created and granted a lien upon the moneys,
until so applied, in favor of the holders of the bonds or the
trustees hereinafter provided for.
(c) In the discretion of the governing body of the local
government the bonds may be secured by a trust indenture by and
between the local government and a corporate trustee, which may be
any trust company or bank having the powers of a trust company.
The ordinance, resolution, or order authorizing the bonds and
fixing the details thereof may provide that the trust indenture may
contain provisions for protecting and enforcing the rights and
remedies of the bondholders as reasonable and proper, not in
violation of law, including covenants setting forth the duties of
the local government in relation to the construction or acquisition
of the technology infrastructure system and the improvement,
operation, repair, maintenance and insurance thereof. The
indenture may set forth the rights and remedies of the bondholders
or trustee, restricting the individual right of action of
bondholders as is customary in trust indentures securing bonds and
debentures of corporations.
§5B-4-18. Sinking fund; transfer of balance of net revenues.
At or before the issuance of any bonds the governing body of the local government shall by ordinance, resolution, or order
create a sinking fund, to be remitted to and administered by the
West Virginia bond commission or, if the local government elects to
have an indenture, by the trustee thereunder, for the payment of
the bonds and the interest thereon, and shall set aside and pledge
a sufficient amount of the net revenues of the technology
infrastructure system, hereby defined to mean the revenues of the
technology infrastructure system remaining after the payment of
operation, repair and maintenance expenses, the amount to be paid
by the local government into said sinking fund at intervals to be
determined by ordinance, resolution, or order which authorizes
issuance of the bonds for: (a) The interest upon the bonds as
interest shall fall due; (b) the necessary fiscal agency charges
for paying bonds and interest; (c) the payment of the bonds as they
fall due, or, if all bonds mature at one time, the proper
maintenance of a sinking fund in any amount as is necessary and
sufficient for the payment thereof at the time. The required
payments shall constitute a first charge upon all the net revenue
of the technology infrastructure system. The West Virginia bond
commission is hereby authorized to act as fiscal agent for the
administration of the sinking fund, under any ordinance, resolution
or order passed pursuant to the provisions of this article, and
shall invest all sinking funds as provided by general law.
Notwithstanding the foregoing, payments of principal and interest on any bonds owned by the United States of America or any agency or
department thereof may be made by the governing body of the local
government directly thereto.
§5B-4-19. Rates for service.
The governing body of the local government shall have power to
establish and maintain rates, fees or charges for the use, lease or
grant of the technology infrastructure system or services provided
to subscribers. The governing body may change and readjust the
rates, fees or charges from time to time. The governing body may
collect from all new applicants for service a deposit to secure the
payment of service rates, fees and charges in the event they become
delinquent.
§5B-4-20. Statutory mortgage lien created; foreclosure thereof
There shall be and is hereby created a statutory mortgage lien
upon the technology infrastructure system, which shall exist in
favor of the holders of bonds hereby authorized to be issued, and
each of them, and the coupons attached to the bonds, and the
technology infrastructure system shall remain subject to the
statutory mortgage lien until payment in full of all principal of
and interest on the bonds. Any holder of bonds, of any coupons
attached thereto, may, either at law or in equity, enforce the
statutory mortgage lien conferred hereby and upon default in the
payment of the principal of or interest on said bonds, may
foreclose the statutory mortgage lien in the manner now provided by the laws of the State of West Virginia for the foreclosure of
mortgages on real property.
§5B-4-21. Refunding revenue bonds
The governing body of any local government having issued bonds
under the provisions of this article is hereby empowered after
ordinance, resolution, or order to issue refunding bonds of local
government for the purpose of retiring or refinancing outstanding
bonds, together with any unpaid interest thereon and redemption
premium thereunto appertaining and all of the provisions of this
article relating to the issuance, security and payment of bonds
shall be applicable to the refunding bonds, subject, however, to
the provisions of the proceedings which authorized the issuance of
the bonds to be so refunded.
§5B-4-22. Complete authority of article; liberal construction.
This article is full and complete authority for carrying out
the powers and duties of same as herein provided. The provisions of
this article shall be liberally construed to accomplish its purpose
and no procedure or proceedings, notices, consents or approvals are
required in connection therewith except as prescribed by this
article.
Email
Webmaster | © 2024 West Virginia Legislature **
