ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 352
(Senators Unger, Fanning, Jenkins, Plymale, Foster, Stollings, D. Facemire
and Prezioso, original sponsors)
____________
[Passed March 13, 2010; in effect ninety days from passage.]
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AN ACT to amend and reenact §13-1-2 of the Code of West Virginia,
1931, as amended; to amend and reenact §17-4-47 and §17-4-49
of said code; and to amend said code by adding thereto a new
article, designated §17-28-1, §17-28-2, §17-28-3, §17-28-4,
§17-28-5, §17-28-6, §17-28-7, §17-28-8, §17-28-9, §17-28-10,
§17-28-11 and §17-28-12, all relating generally to the
creation of the West Virginia Community Empowerment
Transportation Act; authorizing county commissions to issue
general obligation bonds for acquiring, maintaining, improving
public roads and transportation facilities; giving counties
authority to impose, administer, collect and enforce payment
of voter-approved user fees to pay for or finance cost of
transportation projects within their counties; defining
certain terms; giving county commissions authority to issue
special revenue bonds to finance transportation projects and
including authority to issue refunding bonds; giving authority to take other actions to finance and complete transportation
projects; authorizing the Commissioner of Highways to
establish procedures relating to review of transportation
projects; making legislative findings; stating legislative
purpose; requiring certain governmental entities seeking state
funds for transportation projects to submit a transportation
project plan to Commissioner of Highways; setting forth
transportation project plan requirements; setting forth
conditions for approval by the Commissioner of Highways;
providing notice, advertisement and election requirements for
user fees; providing for a comprehensive agreement for a
transportation facility between the sponsoring governmental
entity and the Division of Highways; establishing the
requirements for qualifying a transportation facility as a
public improvement; authorizing information sharing; requiring
a bond covering the division for improvements to highway
facilities required as a result of development; providing that
transportation projects are awarded by competitive bidding and
subject to prevailing wages; authorizing municipal utilities
and public service districts to include into rates costs borne
by the utility in contributing moneys or dedicate revenue to
transportation project costs; and regulating access from
properties to and from state roads.
Be it enacted by the Legislature of West Virginia:
That §13-1-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §17-4-47 and §17-4-49 of said code be amended and reenacted; and that said code be amended by adding
thereto a new article, designated §17-28-1, §17-28-2, §17-28-3,
§17-28-4, §17-28-5, §17-28-6, §17-28-7, §17-28-8, §17-28-9,
§17-28-10, §17-28-11 and §17-28-12 all to read as follows:
CHAPTER 13. PUBLIC BONDED INDEBTEDNESS.
ARTICLE 1. BOND ISSUES FOR ORIGINAL INDEBTEDNESS.
§13-1-2. Purposes for which bonds may be issued.
Debt may be incurred and bonds issued under this article for
the purpose of acquiring, constructing and erecting, enlarging,
extending, reconstructing or improving any building, work, utility
or undertaking, or for furnishing, equipping and acquiring or
procuring the necessary apparatus for any building, work,
improvement or department, or for establishing and maintaining a
library or museum for the public use, or a building or structure
for educational purposes, or acquiring a recreation park for the
public use, or for acquiring, constructing, furnishing, equipping
and maintaining civic arenas, auditoriums, exhibition halls and
theaters, or for other similar corporate purpose, or for the
acquiring, constructing, maintaining, repairing, improving public
roads and transportation facilities, for which the political
division is authorized to levy taxes or expend public money. But
no bonds shall be issued for the purpose of providing funds for the
current expenses of any body or political division. Interest
accruing during the construction period, that is to say, the time
when an improvement is under construction and six months thereafter, shall be deemed a part of the cost of the improvement,
and shall not be deemed current expenses. All engineering and
inspection costs, including a proper proportion of the
compensation, salaries and expenses of the engineering staff of the
political division properly chargeable to any work or improvements,
as determined by the governing body, or the estimated amount of
such costs, shall be deemed part of the cost of an improvement.
All costs and estimated costs of the issuance of bonds shall be
deemed a part of the cost of the work or improvement, or of the
property, or of the carrying out of the purposes for which such
bonds are to be issued. The power to acquire or construct any
building, work or improvement as herein provided shall be deemed to
include the power to acquire the necessary lands, sites and rights-
of-way therefor.
Bonds may also be issued by any municipality having a
population of fifty thousand or more or by any county for the
purpose of acquiring land and constructing a building or buildings
for use and occupancy as a college. The proposal for such a bond
issue shall contain a provision that there shall be created a
commission or committee for the purpose of operating the building
or buildings and for renting the same for an amount sufficient to
pay the interest and sinking fund on the bonds proposed to be
issued, and shall contain a further provision that in the event a
sufficient amount is not realized from rent or rents for the
purpose of meeting the debt service, then the city or county shall
lay a levy for such purpose in an amount sufficient within the constitutional and statutory limitation to pay the interest and
principal on such bonds as the same become due and payable. The
proposal may also contain a provision that when the bonds and the
interest thereon shall have been paid, then the title to the land
and the building or buildings situated thereon may be transferred
to the college to which the same have been rented.
CHAPTER 17. ROADS AND HIGHWAYS
ARTICLE 4. STATE ROAD SYSTEM.
§17-4-47. Access from commercial, etc., property and subdivisions
to highways -- Purposes of regulation; right of
access; provisions inapplicable to controlled-access
facilities; removal of unauthorized access; bond for
access.
(a) Reciprocal access between state highways and real property
used or to be used for commercial, industrial or mercantile
purposes and reciprocal access between state highways and real
property that is subdivided into lots is a matter of public concern
and shall be regulated by the Commissioner of Highways to achieve
the following purposes:
(1) To provide for maximum safety of persons traveling upon,
entering or leaving state highways;
(2) To provide for efficient and rapid movement of traffic
upon state highways;
(3) To permit proper maintenance, repair and drainage of state
highways; and
(4) To facilitate appropriate public use of state highways.
(b) Except where the right of access has been limited by or
pursuant to law, every owner or occupant of real property abutting
upon any existing state highway has a right of reasonable means of
ingress to and egress from such state highway consistent with those
policies expressed in subsection (a) of this section and any
regulations issued by the commissioner under section forty-eight of
this article.
(c) If the construction, relocation or reconstruction of any
state highway, to be paid for, in whole or in part, with federal or
state road funds, results in the abutment of real property as
defined in subsection (a) of this section on the state highway that
did not previously abut on it, no rights of direct access shall
accrue because of such abutment. However, the commissioner may
authorize or limit access from an abutting property if the property
is compatible with the policies stated in subsection (a) of this
section and any regulations issued by the commissioner as
authorized by section forty-eight of this article.
(d) The policies expressed in this section are applicable to
state highways generally and shall in no way limit the authority of
the Commissioner of Highways to establish controlled-access
facilities under sections thirty-nine through forty-six, inclusive,
of this article.
(e) Any unauthorized access to a state highway may be removed,
blocked, barricaded or closed in any manner considered necessary by
the commissioner to protect the safety of the public and enforce the policies of this section and sections forty-eight, forty-nine
and fifty of this article.
(f) As a condition of granting access to a state highway, the
commissioner may require the owners of real property developed or
to be developed to provide a bond in an amount the commissioner
determines necessary to compensate the division for improvements to
highway facilities required as a result of the development. This
bond shall be held a maximum of ten years: Provided, that no bond
shall be required for any residential development consisting of one
hundred homes or less.
§17-4-49. Same -- Points of commercial, etc.; access to comply;
plans, objections and procedures for new points;
review of and changes in existing points;
commissioner's preliminary determination.
(a) No new points of access to and from state highways from
and to real property used or to be used for commercial, industrial
or mercantile purposes may be opened, constructed or maintained
without first complying with this section and sections forty-seven
and forty-eight of this article. Access points opened, constructed
or maintained without compliance are unauthorized.
(b) Plans for any new point of access shall be submitted to
the Commissioner of Highways directly and the following rules shall
apply:
(1) Notice of the proposed new point of access shall be filed
with the commissioner, along with a plan of the proposed new point of access.
(2) The commissioner shall review the plan to ensure
compliance with the policies stated in section forty-seven of this
article and with any regulations issued by the commissioner under
section forty-eight of this article.
(3) If the commissioner objects to a plan, he or she shall
reduce his or her objections to the proposed new point of access to
writing and promptly furnish notice of the objection to the owner
or owners of the real property affected and advise the owner or
owners of the right to demand a hearing on the proposed plan and
the objections. If a plan is not objected to within six weeks from
the time it is filed with the commissioner, it is considered
approved by the commissioner.
(4) In any case where the commissioner objects to the proposed
new point of access, the owner or owners of the real property
affected shall have reasonable opportunity for a hearing on such
objections.
(c)(1) Existing points of access to and from state highways
from and to real property used for commercial, industrial or
mercantile purposes may be reviewed by the commissioner to
determine whether such points of access comply with the policies
stated in section forty-seven of this article and with any
regulations issued by the commissioner under section forty-eight of
this article. The commissioner may direct reasonable changes in
existing points of access to and from state highways from and to
property used for commercial, industrial or mercantile purposes if he or she determines from accident reports or traffic surveys that
the public safety is seriously affected by such points of access
and that such reasonable changes would substantially reduce the
hazard to public safety.
When such changes require construction,
reconstruction or repair, such work shall be done at state expense
as any other construction, reconstruction or repair.
(2) If the commissioner makes a preliminary determination that
any changes should be made, the following rules apply:
(A) The commissioner shall reduce his or her preliminary
determination to writing and promptly furnish notice of such
preliminary determination to the owner or owners of the real
property affected and of their right to demand a hearing on the
preliminary determination. The commissioner's notice shall include
a description of suggested changes suitable for reducing the hazard
to the public safety.
(B) In any case where the commissioner makes a preliminary
determination that any changes should be made, the owner or owners
of the real property affected shall have reasonable opportunity for
a hearing on the preliminary determination.
ARTICLE 28. WEST VIRGINIA COMMUNITY EMPOWERMENT TRANSPORTATION
ACT.
§17-28-1. Short title.
This article may be known and referred to as the "West
Virginia Community Empowerment Transportation Act."
§17-28-2. Legislative findings.
The Legislature finds as follows:
(1) That a broad and unified system should be continued and
persistently upgraded by state law for financing, planning,
designing, constructing, expanding, improving, maintaining and
operating the public road system and transportation facilities that
together comprise the transportation infrastructure of this state;
(2) That, in addition to traditional means and methods of
putting transportation infrastructure into place, a significant
contribution to a system as described in subdivision one of this
section can be made by public-private partnerships that will assist
federal, state and local governments in their efforts to meet the
evolving needs of governmental entities, industry, labor, commerce,
and, most importantly, the citizens of this state;
(3) That available public funding necessary to provide for an
adequate or more than adequate transportation infrastructure have
not kept pace with the needs of the governmental entities that are
charged with financing, developing and maintaining an optimal
transportation infrastructure in this state;
(4) That investment in transportation infrastructure by
private entities should be facilitated, and innovative financing
mechanisms should be encouraged and developed, so as to utilize
private capital and other funding sources to supplement
governmental actions taken in support of transportation projects,
to the end that the financial and technical expertise and other
experience of private entities regarding the development of
transportation facilities may be garnered and put into service on behalf of the state;
(5) That public and private entities should have a clear and
well-designed statutory framework to work within that allows for
flexibility in partnering with each other and developing
transportation infrastructure projects; and
(6) This article should not be limited by any rule of strict
construction, but should be liberally construed to effect the
legislative purpose of conceiving and creating a modern
transportation infrastructure under the leadership and guidance of
governmental entities, with corresponding and cooperative
assistance, under appropriate circumstances, by public-private
partnerships, inuring to the benefit and prosperity of the state
and the welfare of its citizens.
§17-28-3. Definitions.
Unless the context clearly indicates otherwise, as used in
this article:
(1) "Affected local jurisdiction" means any county or
incorporated municipality of this state in which all or any part of
a transportation facility is or will be located, or any other local
public entity, including, but not limited to, a public service
district or highway authority or highway association that is
directly affected by a transportation project.
(2) "Commissioner" means the Commissioner of Highways who is
the chief executive officer of the Division of Highways.
(3) "Department" means the West Virginia Department of
Transportation.
(4) "Division" refers to the Division of Highways, a division
within the West Virginia Department of Transportation.
(5) "Governmental entity" means any county, municipality, or
other governmental unit or political subdivision of the State.
(6) "Highway authority" or "highway association" means any
entity created by the Legislature for the advancement and
improvement of the state road and highway system, including, but
not limited to, the New River Parkway Authority, Midland Trail
Scenic Highway Association, Shawnee Parkway Authority, Corridor G
Regional Development Authority, Coalfields Expressway Authority,
Robert C. Byrd Corridor H Highway Authority, West Virginia 2 and
I-68 Authority, Little Kanawha River Parkway Authority, King Coal
Highway Authority, Coal Heritage Highway Authority, Blue and Gray
Intermodal Highway Authority and the West Virginia Eastern
Panhandle Transportation Authority or, if an authority is
abolished, any entity succeeding to the principal functions of the
highway authority or to whom the powers given to the highway
authority are given by law.
(7) "Private entity" means any natural person, corporation,
general partnership, limited liability company, limited
partnership, joint venture, business trust, public benefit
corporation, nonprofit entity or other business entity.
(8) "Project costs" means capital costs, costs of financing,
planning, designing, constructing, expanding, improving,
maintaining or controlling a transportation facility, the cost of
land, equipment, machinery, installation of utilities and other similar expenditures and all other charges or expenses necessary,
appurtenant or incidental to the foregoing.
(9) "Sponsor" or "project sponsor" means a governmental entity
proposing a transportation project.
(10) "Public-private partnership" means a consortium that
includes the Division of Highways, a governmental entity, a highway
authority or any combination thereof, together with a private
entity or entities, which proposes to finance, acquire, plan,
design, construct, expand, improve, maintain or control a
transportation facility.
(11) "Public service district" means a public corporation or
political subdivision of this state created pursuant to section
two, article thirteen-a, chapter sixteen of this code.
(12) "Revenue" means all revenue, income, earnings, user fees,
lease payments or other service payments arising out of or in
connection with supporting the development or operation of a
transportation facility, including, without limitation, money
received as grants or otherwise from the United States of America,
from any public entity or from any agency or instrumentality of the
foregoing in aid of such transportation project, moneys generated
by way of contract, pledge, donation, bequest or bonds and moneys
generated by taxes which are authorized to be assessed and levied
by the Legislature or another governmental entity.
(13) "Secretary" means the Cabinet Secretary of the West
Virginia Department of Transportation.
(14) "Transportation facility" means a public highway, road, bridge, tunnel, overpass, building, structure, airport, vehicle
parking facility, riverport facility, rail facility, or intermodal
facility used for the transportation of persons or goods.
(15) "Transportation project" means any project to acquire,
design, construct, expand, renovate, extend, enlarge, increase,
equip, improve, maintain or operate a transportation facility in
this state for which a governmental entity is permitted by law to
expend public funds but does not include any project that would
otherwise be under the authority of the Public Port Authority, the
Aeronautics Commission or the Parkways, Economic Development and
Tourism Authority.
(16) "User fee" means a rate, toll, or fee imposed by an
operator for use of all or a part of a transportation facility
authorized in section five of this article.Is this ok? Referring to in this article
(17) "Utility" means a privately, publicly or cooperatively
owned line, facility or system for producing, transmitting or
distributing communications, cable television, power, electricity,
light, heat, gas, oil, crude products, water, steam, waste, storm
water not connected with highway drainage, or any other similar
commodity, including fire or police signal system or street
lighting system, which directly or indirectly serves the public.
§17-28-4. Governmental entities to submit transportation project
requests to commissioner of highways generally;
commissioner's powers and duties to implement the
act; transportation project plan requirements; Division of Highways plan review; proprietary
information.
(a) In addition to any other powers which a governmental
entity may now have, a governmental entity seeking state funds for
a transportation project may submit a transportation project plan
to the commissioner as a project sponsor. The commissioner shall
review the transportation project plan and the available financing
for the project and shall encourage project sponsors to pursue
alternative funding sources. Alternative funding sources may
include, without limitation, utilization of tax increment
financing, issuance of general obligations bonds, special revenue
bonds or anticipation notes, cooperation with other governmental
units, dedicated user fees and public-private partnerships.
(b) To implement and carry out the intent of this article, the
commissioner shall propose legislative rules in accordance with
article three, chapter twenty-nine-a of this code. The
commissioner shall establish comprehensive, uniform guidelines in
order to evaluate any transportation project plan. The guidelines
shall address the following:
(1) The use of alternative sources of funding which could
finance all or a portion of the transportation project;
(2) The transportation needs of the region;
(3) Project costs;
(4) Whether dedicated revenues from a project sponsor are
offered for project costs;
(5) Available federal and state funds;
(6) The degree to which the transportation project impacts
other infrastructure projects and implements cost-effective and
efficient development of transportation projects with other
infrastructure improvements;
(7) The cost effectiveness of the transportation project as
compared with alternatives which achieve substantially the same
economic development benefits;
(8) The project sponsor's ability to operate and maintain the
transportation project or finance the continued operation and
maintenance of the transportation project if approved;
(9) The degree to which the transportation project achieves
other state or regional planning goals;
(10) The estimated date upon which the transportation project
could commence if funding were available and the estimated
completion date of the transportation project; and
(11) Other factors the commissioner considers necessary or
appropriate to accomplish the purpose and intent of this article.
(c) The commissioner shall create a transportation project
plan application form that is to be used by project sponsors
requesting funding assistance from the state for transportation
projects. The application must require a preliminary proposal that
includes:
(1) The location of the transportation project and affected
local jurisdictions;
(2) The estimated total project cost of the transportation
project;
(3) The amount of funding assistance desired from the Division
of Highways and the specific uses of the funding;
(4) Other sources of funding available for the transportation
project;
(5) Information demonstrating the need for the transportation
project and documentation that the proposed funding of the project
is the most economically feasible alternative to completing the
transportation project;
(6) A timeline for activities to be performed by the project
sponsors;
(7) A statement setting forth the financing of the project
costs, including the sources of the funds and identification of any
dedicated revenues, proposed debt, tax increment financing plans,
issuance of bonds or notes, in-kind services or equity investment
of project sponsors;
(8) A list of utilities that can be constructed in
coordination with the transportation project and a statement of the
plans to accommodate those utilities;
(9) Project sponsor contact information;
(10) A statement of the projected availability and use of
dedicated revenues from user fees, lease payments, taxes, and other
service payments over time; and
(11) Other information as the commissioner considers necessary
to enable the review of the transportation project.
(12) The commissioner may also require the submission of
geographic information system mapping of the transportation project and electronic filing of the preliminary proposal.
(d) If a preliminary proposal is approved by the commissioner
for detailed review, the division will advise the project sponsors
of the estimated cost of a detailed review. The project sponsor
must deposit a bond with the commissioner, irrevocable letter of
credit or other acceptable instrument guaranteeing payment by the
project sponsors of the actual costs incurred by the division to
perform a detailed transportation project plan review, to the
maximum of the estimated costs, before a detailed review may begin.
(e) In evaluating any transportation project, the commissioner
may rely upon internal staff reports or the advice of outside
advisors or consultants.
(f) The commissioner is to encourage collaboration among
project sponsors, affected local jurisdictions and private entities
through intergovernmental agreements and public-private
partnerships including, without limitation, recommending the
amounts and sources of funding which affected local jurisdictions
or project sponsors may pursue, which state transportation or
infrastructure agency or agencies may be consulted for appropriate
investment of public funds and alternatives to carry out the intent
of this article.
(g) After a detailed review, the commissioner may recommend to
the Governor those transportation projects which are a prudent and
resourceful expenditure of public funds. No proposal may be
recommended or approved which is inconsistent with the division's
twenty-year long range plans or other transportation plans.
(h) The commissioner must prepare and publish an annual report
of activities and accomplishments and submit it to the Governor and
to the Joint Committee on Government and Finance on or before
December 15 of each year. The commissioner must also prepare and
submit an annual report to the Governor and the Legislature
outlining alternative road funding models and incentive packages.
The report may also recommend legislation relating to third-party
donation of funds, materials or services, federal credit
instruments, secured loans, federal Transportation Infrastructure
Finance and Innovation Act funds, state infrastructure banks
(SIBS), private activity bonds or other matters respecting
transportation considered by the commissioner to be in the public
interest. The commissioner may consider alternatives to the
current system of taxing highway use through motor vehicle fuel
taxes including, without limitation, pilot programs for testing
technology and methods for the collection of mileage fees.
(
i) All documents maintained pursuant to this article shall be
subject to the requirements of chapter twenty-nine-b of this code.
§17-28-5. Powers conferred on counties; special charges for
transportation facilities and projects; election on
ordinance for user fees; form of ballots;
procedure.
(a) In addition to any other powers which a county may now
have, each county, by and through its county commission, shall have
the following powers:
(1) To finance one or more transportation projects, or
additions thereto, which shall be located within the county;
(2) To impose by ordinance reasonable user fees upon users of
transportation facilities within a county to be collected in the
manner specified in the ordinance, including, but not limited to,
paying the costs of one or more transportation projects, the
payment of debt service on any revenue bonds issued under section
six of this article. The ordinance shall provide for the
administration, collection and enforcement of the fee; and
(3) To establish a special transportation fund as a separate
fund into which all user fees and other revenues designated by the
county commission shall be deposited, and from which all
transportation project costs shall be paid, which may be assigned
to and held by a trustee for the benefit of bondholders if special
transportation revenue bonds are issued by the county commission
under section six of this article.
(b) No ordinance imposing a user fee authorized by this
section is effective until it is ratified by a majority of the
legal votes cast by the qualified voters of the county at a primary
or general election. The ballot question must set forth the amount
of the fee, the manner in which it will be imposed, the general use
to which the proceeds of the fee will be put, a description of the
transportation project to be financed with the fee, whether revenue
bonds will be issued, and if bonds are to be issued, the estimated
term and amount of the revenue bonds. The county commission may
include additional information in the notice. Notice of the election shall be provided and the ballots shall be printed as set
forth in subsection (c) of this section.
(c) On the election ballots shall be printed the following:
Shall the County Commission of (name of county) be authorized
to adopt an ordinance to establish a fee for the use of the
(transportation facility description) in accordance with section
five, article twenty-eight, chapter seventeen of the code of West
Virginia?
? Yes
? No
(d) If a majority of the legal votes cast upon the question be
for the ordinance, the provisions of the ordinance become effective
upon the date the results of the election are declared. If a
majority of the legal votes cast upon the question be against the
ordinance, the ordinance shall not take effect.
(e) Subject to the provisions of subsection (d) of this
section, an election permitted by this section may be conducted at
any regular primary or general election as the county commission in
its order submitting the same to a vote may designate.
(f) Notice of an election pursuant to this section shall be
given by publication of the order calling for a vote on the
question as a Class II-0 legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code and
the publication area for the publication shall be the county in
which the election is to be conducted.
(g) Any election permitted by this section shall be held at the voting precincts established for holding primary or general
elections. All of the provisions of the general election laws of
this state applicable to primary or general elections not
inconsistent with the provisions of this section shall apply to
voting and elections authorized by this section.
(h) Before an election is held, the county commission shall
obtain written confirmation from the commissioner approving the
user fee and a transportation project plan within the county that
was reviewed by commissioner under section four of this article.
§17-28-6. Issuance of transportation project revenue bonds by
county.
(a) The county commission, in its discretion, may use the
moneys in such special transportation fund established under
section five of this article to finance the costs of transportation
projects on a cash basis. Every county commission is empowered and
authorized to issue, in the manner prescribed by this section,
special revenue bonds secured by user fees authorized by section
five of this article to finance or refinance all or part of a
transportation project and pledge all or any part of the user fees
for the payment of the principal of and interest on such bonds and
the reserves therefor. Bonds issued for any of the purposes stated
in this section shall contain in the title or subtitle thereto the
word "transportation", in order to identify the same.
(b) The transportation revenue bonds may be authorized and
issued by the county commission to finance or refinance, in whole
or in part, public transportation projects in an aggregate principal amount not exceeding the amount which the county
commission determines can be paid as to both principal and interest
and reasonable margins for a reserve therefor from user fee
revenues. A county commission issuing transportation revenue bonds
shall establish a fund to deposit user fee revenues. The county
commission shall thereafter deposit all revenues pledged to the
payment of principal and interest of transportation revenue bonds
into the fund.
(c) The issuance of transportation revenue bonds may be
authorized by an order of the county commission. The
transportation revenue bonds shall: (1) Bear a date or dates; (2)
mature at a time or times not exceeding forty years from their
respective dates; (3) be in a denomination not more than a maximum
denomination fixed by the county commission; (4) be in a registered
form with exchangeability and interchangeability privileges; (5) be
payable in a medium of payment and at a place or places within or
without the state; (6) be subject to such terms and prices for
redemption, if any, as approved by the county commission; (7) bear
a rate of interest that is not more than a maximum rate fixed by
the county commission; and (8) may have such other terms and
provisions as determined by the county commission. The
transportation revenue bonds shall be signed by the president of
the county commission under the seal of the county commission,
attested by the clerk of the county commission. Transportation
revenue bonds may be sold in a manner as the county commission
determines is for the best interests of the county.
(d) The county commission may enter into: (1) Trust agreements
with banks or trust companies within or without the state and in
trust agreements or orders authorizing the issuance of bonds; (2)
valid and legally binding covenants with the holders of the
transportation revenue bonds as to the custody, safeguarding and
disposition of the proceeds of the transportation revenue bonds,
the moneys in the user fee revenue fund, sinking funds, reserve
funds or any other moneys or funds; as to the rank and priority, if
any, or different issues of transportation revenue bonds by the
county commission under the provisions of this section; (3)
agreements as to such provisions as payment, term, security,
default and remedy provisions as the county commission shall
consider necessary or desirable; and (4) agreements as to any other
matters or provisions which are considered necessary and advisable
by the county commission in the best interests of the county and to
enhance the marketability of such transportation revenue bonds.
(e) The transportation revenue bonds are negotiable
instruments under the Uniform Commercial Code of this state and are
not obligations or debts of the state or of the county issuing the
bonds and the credit or taxing power of the state or county may not
be pledged therefor, but the transportation revenue bonds may be
payable only from the revenue pledged therefor as provided in this
article.
(f) A holder of transportation revenue bonds has a lien
against the user fee revenues and the user fee revenue fund for
payment of the transportation revenue bond and the interest thereon and may bring suit to enforce the lien.
(g) A county commission may issue and secure additional bonds
payable out of the user fee revenues and the user fee revenue fund
which bonds may rank on a parity with, or be subordinate or
superior to, other bonds issued by the county commission and
payable from the user revenue fee fund.
(h) For the purposes of this section, a county commission is
authorized to sue and be sued; make contracts and guarantees; incur
liabilities; borrow or lend money for any time period considered
advisable by the county commission; sell, mortgage, lease,
exchange, transfer or otherwise dispose of its property; or pledge
its property as collateral or security for any time period
considered advisable by the commission. All sales, leases or other
disposition of real property acquired with state road funds or
federal funds, or of real property dedicated to the state road
system, must be done in accordance with applicable federal and
state law and may be done only with the approval of the
commissioner. A county commission is also authorized to create
trusts as will expedite the efficient management of transportation
projects and other assets owned or controlled by the county
commission. The trustee, whether individual or corporate, in any
trust has a fiduciary relationship with the county commission and
may be removed by the county commission for good cause shown or for
a breach of the fiduciary relationship with the county commission.
Nothing in this article effects a waiver of the sovereign,
constitutional or governmental immunity of the state or its agencies.
(i) The powers conferred by this article are in addition and
supplemental to any other powers conferred upon county commissions
by the Legislature relating to streets, road maintenance or to
construct and maintain transportation facilities.
(j) After the issuance of any transportation revenue bonds,
the user fee pledged to the payment thereof may not be reduced as
long as any of the bonds are outstanding and unpaid except under
such terms, provisions and conditions as shall be contained in the
order, trust, agreement or other proceedings under which the
transportation revenue bonds were issued.
§17-28-7. Comprehensive agreement.
(a) Prior to acquiring, constructing or improving a
transportation facility, the project sponsors shall enter into a
comprehensive agreement with the division. The comprehensive
agreement shall provide for:
(1) Delivery of performance or payment bonds in connection
with the construction of or improvements to the transportation
facility, in the forms and amounts satisfactory to the division;
(2) Review and approval of the final plans and specifications
for the transportation facility by the division;
(3) Inspection of the construction of or improvements to the
transportation facility to ensure that they conform to the
engineering standards acceptable to the division;
(4) Maintenance of a policy or policies of public liability
insurance or self-insurance, in a form and amount satisfactory to the division and reasonably sufficient to insure coverage of tort
liability to the public and employees and to enable the continued
operation of the transportation facility. However, in no event may
the insurance impose any pecuniary liability on the state, its
agencies or any political subdivision of the state. Copies of the
policies must be filed with the division accompanied by proofs of
coverage;
(5) Monitoring of the maintenance and operating practices of
the sponsoring governmental entity by the division and the taking
of any actions the division finds appropriate to ensure that the
transportation facility is properly maintained and operated;
(6) Itemization and reimbursement to be paid to the division
for the review and any services provided by the division;
(7) Filing of appropriate financial statements on a periodic
basis;
(8) The date of termination of the sponsoring governmental
entity's duties under this article and dedication to the division;
and
(9) That a transportation facility must accommodate all public
utilities on a reasonable, nondiscriminatory and completely neutral
basis and in compliance with section seventeen-b, article four,
chapter seventeen of this code.
(b) In the comprehensive agreement, the division may agree to
accept grants or loans from the sponsoring governmental entity,
from time to time, from amounts received from the state or federal
government or any agency or instrumentality of the state or federal government.
(c) The comprehensive agreement is to incorporate the duties
of the sponsoring governmental entity under this article and may
contain any other terms and conditions that the division determines
serve the public purpose of this chapter. Without limitation, the
comprehensive agreement may contain provisions under which the
division agrees to provide notice of default and cure rights for
the benefit of the sponsoring governmental entity and the persons
specified in the comprehensive agreement as providing financing for
the qualifying transportation facility. The comprehensive
agreement may contain any other lawful terms and conditions to
which the sponsoring governmental entity and the division mutually
agree.
(d) Any changes in the terms of the comprehensive agreement,
agreed upon by the parties must be added to the comprehensive
agreement by written amendment.
§17-28-8. Commissioner's authority over transportation projects
accepted into the state road system; use of state
road funds.
(a) Notwithstanding anything in this article to the contrary,
the commissioner has final approval of any transportation project.
However, no state road funds may be used, singly or together with
funds from any other source, for any purpose or in any manner
contrary to or prohibited by the constitution and laws of this
state or the federal government or where such use, in the sole discretion of the commissioner, would jeopardize receipt of federal
funds.
(b) All transportation projects that are accepted as part of
the state road system, and all real property interests and
appurtenances, are under the exclusive jurisdiction and control of
the commissioner, who may exercise the same rights and authority as
he or she has over other transportation facilities in the state
road system. As a condition of acceptance of a transportation
project into the state road system, the commissioner may require
that the project sponsor provide a dedicated revenue source for the
continued operation and maintenance of the transportation project.
(c) No state road funds may be used to finance a
transportation project without the written approval of the
commissioner.
§17-28-9. Qualifying a transportation project as a public
improvement.
All transportation projects authorized under this article are
public improvements and are subject to article five-a, chapter
twenty-one of this code. Article twenty-two, chapter five of this
code applies to all transportation projects authorized under this
article. All construction, reconstruction, repair or improvement
of transportation projects under this article will be awarded by
competitive bidding. Competitive bids are to be solicited by the
governmental entity sponsoring a transportation project for each
construction contract in excess of $25,000 in total cost.
Competitive bids must be solicited by the sponsoring governmental entity through publication of a Class II legal advertisement, as
required by article three, chapter fifty-nine of this code, and the
publication area is the county or municipality where the
transportation facility is to be located. The advertisement must
also be published as a Class II advertisement in a newspaper of
general circulation published in the city of Charleston. The
advertisement is to include the solicitations of sealed proposals
for the construction of the transportation project, stating the
time and place for the opening of bids. All bids will be publicly
opened and read aloud. Construction contracts must be awarded to
the lowest qualified responsible bidder, who furnishes a sufficient
performance or payment bond. The sponsoring governmental entity
has the right to reject all bids and solicit new bids for the
construction contract. Article one-c, chapter twenty-one of this
code applies to the construction of all transportation projects
approved under this article.
§17-28-10. Coordination and development of transportation projects
with other infrastructure; information sharing;
agreements among municipal utilities and public
service districts to participate in transportation
projects; rates to include costs borne by municipal
utilities and public service districts in coordination
with transportation projects; exemption from Public
Service Commission approval.
(a) The commissioner is to encourage the joint and concurrent development and construction of transportation projects with other
infrastructure including, without limitation, water and sewer
infrastructure.
(b) To coordinate and integrate the planning of transportation
projects among local jurisdictions, all governing bodies, units of
government, municipal utilities and public service districts within
the affected local jurisdiction are to cooperate, participate,
share information and give input when a project sponsor prepares a
transportation project plan.
(c) Municipal utilities and public service districts may enter
into agreements with any project sponsor for the purpose of
constructing new infrastructure facilities or substantially
improving or expanding infrastructure facilities in conjunction
with a transportation project and dedicating revenue or
contributing moneys to transportation project costs. Each
agreement must contain, at a minimum, engineering and construction
standards, terms regarding the revenue sources, allocation of
project costs and confirmation that the agreement does not violate
any existing bond covenants. Each agreement shall also comply and
be consistent with the comprehensive agreement applicable to the
transportation project. No infrastructure facilities may be
located or relocated within a right-of-way in, or to be included
within, the state road system except in accordance with
transportation project plans approved by the commissioner.
(d) The rates charged by a municipal utility or public service
district to customers in an affected local jurisdiction may include the additional cost borne by the municipal utility or public
service district as a result of entering into an agreement with a
project sponsor to contribute moneys or dedicate revenue to
transportation project costs.
(e) This article may not be construed to affect the authority
of the Department of Environmental Protection nor the authority of
the Department of Health and Human Resources pursuant to this code.
(f) This article may not be construed to give the Public
Service Commission authority to regulate or intervene in the
approval and construction of any transportation project or any
agreement between a project sponsor and a municipal utility or
public service district under this article.
§17-28-11. Excess funds; termination of user fee.
(a) When revenue bonds have been issued as provided in this
article and the amount of user fees imposed pursuant to section
five of this article and collected, less costs of administration,
collection and enforcement, exceeds the amount needed to pay
project costs and annual debt service, including the finding of
required debt service and maintenance reserves, the additional
amount shall be set aside in a separate fund and used to either
fund transportation projects on a cash basis or retire some or all
of the outstanding revenue bonds before their maturity date. The
county commission may establish a call date for which bonds must be
refunded with excess funds after a date determined by the county
commission.
(b) Once the revenue bonds issued as provided in this article are no longer outstanding or a certified public accountant
certifies that sufficient reserves have been or will be accumulated
as of a specified date to pay all future debt service on the
outstanding bonds, the user fee that is applicable to those
specific bonds shall be discontinued. Termination of the user fee
as provided in this section shall not bar or otherwise prevent the
county commission from collecting user fees that accrued before the
termination date.
§17-28-12. Severability.
If any section, clause, provision or portion of this article
shall be held to be invalid or unconstitutional by any court of
competent jurisdiction, such holding shall not affect any other
section, clause or provision of this article which is not in and of
itself unconstitutional.