Senate Bill No. 169
(By Senators Browning and Plymale)
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[Introduced January 13, 2010; referred to the Committee on
Economic Development; and then to the Committee on Finance.]
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A BILL to amend and reenact §31-15-2 and §31-15-4 of the Code of
West Virginia, 1931, as amended; and to amend said code by
adding thereto a new section, designated §31-15-12b, all
relating to the West Virginia Economic Development Authority;
legislative findings; definitions; and providing that, in
developing criteria for loans to a tourism project, the
authority shall not require that any specific number of jobs
are or will be created by the project, nor that any existing
jobs or jobs to be created by the project are to meet any
specific compensation levels, nor that any existing jobs or
jobs be created by the project provide any specific employee
benefits.
Be it enacted by the Legislature of West Virginia:
That §31-15-2 and §31-15-4 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §31-15-12b, all to read
as follows:
ARTICLE 15. WEST VIRGINIA ECONOMIC DEVELOPMENT AUTHORITY.
§31-15-2. Legislative findings.
It is hereby determined and declared as a matter of
legislative finding:
(a) That unemployment exists in many areas of the state and
may well come about, from time to time, in other areas of the
state;
(b) That in some areas of the state, unemployment is a serious
problem and has been for so long a period of time that, without
remedial measures, it may become so in other areas of the state;
(c) That economic insecurity due to unemployment is a serious
menace to the health, safety, morals and general welfare of the
people of the entire state;
(d) That widespread industry unemployment produces indigency
which falls with crushing force upon all unemployed workers and
ultimately upon the state in the form of welfare and unemployment
compensation;
(e) That the absence of employment and business opportunities
for youth is a serious threat to the strength and permanence of
their faith in our American political and economic institutions and
the philosophy of freedom on which those institutions are based;
(f) That lack of employment and business opportunities has resulted in thousands of workers and their families leaving the
state to find such opportunities elsewhere and that this exodus has
adversely affected the tax base of counties and municipalities
resulting in an impairment of their financial ability to support
education and other local government services;
(g) That security against unemployment and the spread of
indigency and economic stagnation can best be provided by the
promotion, attraction, stimulation, rehabilitation and
revitalization of commerce, tourism, industry and manufacturing;
(h) That the present and future health, safety, morals, right
to gainful employment and general welfare of the people of the
state require as a public purpose the promotion and development of
new and expanded coal and other energy production, industrial,
commercial, tourist and manufacturing enterprises within this
state;
(i) That the means and measures being authorized for the
financing of projects, including the insuring of loans or other
debt issued for working capital or the refinancing of existing debt
of an enterprise, are, as a matter of public policy, for the public
purposes of the several counties, municipalities and the state;
(j) That the device under which private community industrial
development organizations in the state acquire or build industrial
buildings or sites and equip the same with funds raised through
popular subscription, loans or otherwise for lease and sale to new or expanding industries has proven effective in creating new
employment and business opportunities locally, is in accord with
the American tradition of community initiative and enterprise and
requires and deserves encouragement and support from the state as
a means toward alleviation of unemployment and economic distress;
(k) That community industrial development corporations in the
state have invested substantial funds in successful coal
production, industrial projects and are experiencing difficulty in
undertaking additional projects by reason of the partial inadequacy
of their own funds potentially available from local subscription
sources and by reason of limitations of local financial
institutions in providing additional and sufficiently sizable first
deed of trust or mortgage loans or letters of credit and other
forms of credit enhancement;
(l) That minority business ownership, especially among
African-Americans in the area of Charleston, West Virginia, is
proportionately less than minority business ownership nationwide
and statewide, the unemployment rate for African-Americans recently
has been about twice the unemployment rate for caucasians and
significantly higher in some counties with a greater concentration
of African-Americans and an urgent need exists to encourage
African-Americans and minority business ownership and higher
employment;
(m) That an urgent need exists to stimulate a larger flow of private investment funds from banks, investment houses, insurance
companies and other financial institutions into projects;
(n) That by increasing the number of projects presenting
attractive opportunities for private investment, a larger portion
of the private capital available in this state for investment can
be put to use for the general economic development of the state;
(o) That the availability of financial assistance through the
creation of an insurance fund will promote the economic development
of the state; and that it is in the public interest, in order to
address the needs aforesaid, that a state instrumentality be
created as a public body corporate with full powers to accept
grants, gifts and appropriations, to generate revenues, to borrow
money and issue its bonds, notes, commercial paper, other debt
instruments and security interests to the end that funds obtained
thereby may be used to furnish money and credit to approved
industrial development agencies or enterprises or to promote the
establishment of new projects or to retain existing projects;
(p) That tourism is one of the mainstays of the state's
economy and has a high potential for growth;
(q) That the success of tourism projects should not be
measured so much in the number of jobs or capital created, but in
the value created by patrons of such projects and their ancillary
economic contributions to the state; and
(r) That the authority must consider the uniqueness of tourism in the state's economic picture in determining participation of
tourism projects under this article.
§31-15-4. Definitions.
Unless the context clearly indicates otherwise, as used in
this article:
(a) "Authority" means the West Virginia Economic Development
Authority;
(b) "Board" means the governing body of the authority;
(c) "Board of investments" means the board of investments
established by article six, chapter twelve of this code;
(d) "Bonds" means bonds or other debt instruments of the
authority issued under this article, whether the interest thereon
is taxable or tax-exempt for federal income tax purposes;
(e) "Business plan" means a document detailing the sales,
production and distribution plans of an enterprise, together with
the expenditures necessary to carry out those plans (including
budget and cash flow projections) on an annual basis, and an
employment plan setting forth steps to be taken by the enterprise
to retain jobs or reduce unemployment in this state;
(f) "Costs of establishing an industrial development project"
means the cost of acquiring existing facilities, cost of machinery,
cost of equipment and fixtures, the cost of construction ,including
with out limitation, cost of improvements, repairs, and
renovations, costs of all lands, water areas, property rights and easements, financing charges, interest prior to and during
construction, cost of architectural, engineering, legal and
financial or other consulting services, plans, site assessments,
site remediation costs, specifications and surveys, estimates of
costs and any other expenses necessary or incident to determining
the feasibility or practicability of any project, together with
such other costs and expenses as may be necessary or incidental to
the financing and the construction or acquisition of the project
and the placing of the same in operation;
(g) "County" means any county of this state;
(h) "Enterprise" means an entity which is or proposes to be
engaged in this state in any business activity for profit. The
entity may be owned, operated, controlled or under the management
of a person, partnership, corporation, trust, community-based
development organization or council, local commerce group, employee
stock ownership plan, pension or profit-sharing plan, a group of
participating employees who desire to own an entity which does not
presently exist, or any similar entity or organization;
(i) "Federal agency" means the United States of America and
any department, corporation, agency or instrumentality created,
designated or established by the United States of America;
(j) "Financing plan" means a plan designed to meet the
financing needs of an enterprise as reflected in the business plan;
(k) "Fund" means the Economic Development Fund provided
for in section twenty-three of this article;
(l) "Government" means state and federal government, and any
political subdivision, agency or instrumentality thereof, corporate
or otherwise;
(m) "Industrial development agency" means any incorporated
organization, foundation, association or agency to whose members or
shareholders no profit inures, which has as its primary function
the promotion, encouragement and development of industrial,
commercial, manufacturing and tourist enterprises or projects in
this state;
(n) "Insurance fund" means the insurance fund created in this
article;
(o) "Loan" means an extension of financing by the authority to
an industrial development agency or an enterprise, including, but
not limited to, a loan, a lease or an installment sale;
(p) "Municipality" means any city or town in this state;
(q) "Notes" means any notes, including commercial paper, of
the authority issued under this article whether the interest
thereon is taxable or tax-exempt for federal income tax purposes;
(r) "Project" means a commercial or industrial undertaking and
all of the assets reasonably and necessarily required therefor, all
as determined by the authority, which determination shall be
conclusive, and shall include, without limiting the generality of
the foregoing, industrial projects and commercial projects as presently defined in section three, article two-c, chapter
thirteen;
(s) "Revenues" means all fees, premiums, charges, moneys,
profits, payment or principal of or interest on, loans and other
investments, gifts, grants, appropriations, contributions and all
other income derived or to be derived by the authority under this
article;
and
(t) "Security interest" means an interest in the loan
portfolio of the authority which interest is secured by an
underlying loan or loans and is evidenced by a note issued by the
authority;
and
(u) "Tourism project" means a commercial undertaking which
receives or projects to receive more than seventy-five percent of
its revenue from nonresident sources and is not a retail operation.
The State Director of Tourism may designate the project as
eligible.
§31-15-12b. Tourism projects; criteria for loans.
Any other provision of this article to the contrary
notwithstanding, in developing criteria for loans to a tourism
project under this article, the authority shall not require that
any specific number of jobs are or will be created by the project,
nor that any existing jobs or jobs to be created by the project are
to meet any specific compensation levels, nor that any existing
jobs or jobs to be created by the project provide any specific employee benefits.
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(NOTE: The purpose of this bill is to provide that the West
Virginia Economic Development Authority, in developing criteria for
loans to a tourism project, shall not require that any specific
number of jobs are or will be created by the project, nor that any
existing jobs or jobs to be created are to meet any specific
compensation levels, nor that any existing jobs or jobs to be
created provide any specific employee benefits.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§31-15-12b is new; therefore, strike-throughs and underscoring
are omitted.)