Senate Bill No. 617
(By Senators McCabe and Unger)
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[Introduced February 23, 2004; referred to the Committee on
Economic Development; and then to the Committee on Finance.]
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A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §31-21-1, §31-21-2,
§31-21-3, §31-21-4, §31-21-5, §31-21-6, §31-21-7 and §31-21-8,
all relating to the creation of an economic development
funding committee; providing for the development of guidelines
and preliminary applications; requiring project funding
assistance review; establishing powers, duties and
responsibilities of the committee; and providing for an
economic development subaccount and the use of funds therein.
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 §31-21-1, §31-21-2,
§31-21-3, §31-21-4, §31-21-5, §31-21-6, §31-21-7 and §31-21-8, all
to read as follows:
ARTICLE 21. ECONOMIC DEVELOPMENT FUNDING COMMITTEE.
§31-21-1. Short title.
This article shall be known and may be cited as the "West
Virginia Economic Development Funding Committee Act."
§31-21-2. Definitions.
For purposes of this article:
(a)
"Code" means the code of West Virginia, one thousand nine
hundred thirty-one, as amended;
(b) "Cost" means, as applied to any project to be financed,
the cost of planning, acquisition, improvement and construction of
the project; the cost of preliminary design and analysis, surveys,
borings; the cost of environmental, financial, market and
engineering feasibility studies, assessments, applications,
approvals, submissions or clearances; the cost of preparation of
plans and specifications and other engineering services; the cost
of acquisition of all land, rights-of-way, property rights,
easements, franchise rights and any other interests required for
the acquisition, repair, improvement or construction of the
project; the cost of demolishing or removing any buildings or
structures on land so acquired, including the cost of acquiring any
lands to which buildings or structures may be moved; the cost of
excavation, grading, shaping or treatment of earth, demolishing or
removing any buildings or structures; the cost of constructing any buildings or other improvements; the cost of all pumps, tanks,
vehicles, apparatus and other machinery, furnishings and equipment;
loan or origination fees and all finance charges and interest
incurred prior to and during the construction; the cost of all
legal services and expenses; the cost of all plans, specifications,
surveys and estimates of cost; all working capital and other
expenses necessary or incident to determining the feasibility or
practicability of acquiring, repairing, improving or constructing
any project; the cost of placing any project in operation; and all
other costs and expenses of any kind or nature incurred or to be
incurred by the project sponsor developing the project that are
reasonable and necessary for carrying out all works and
undertakings necessary or incident to the accomplishment of any
project:
Provided, That costs shall not include any amounts
related to the ongoing operations of the owner or operator,
depreciation thereof or any other cost which the committee has not
determined to be consistent with the purposes and objectives of
this article;
(c) "Committee" means the West Virginia economic development
funding committee created in section three of this article;
(d) "Department of transportation" means the West Virginia
department of transportation established under chapter five-f,
article one of this code or any successor to all or any substantial part of its powers and duties;
(e) "Economic development authority" means the West Virginia
economic development authority established under article fifteen,
chapter thirty-one of this code, or any successor to all or any
substantial part of its powers and duties;
(f) "Economic development council" means the council for
community and economic development established under chapter
five-b, article two, section two
of this code or any successor to
all or any substantial part of its powers and duties;
(g) "Higher education policy commission" means the West
Virginia higher education policy commission established under
chapter eighteen-b, article one-b of this code or any successor to
all or any substantial part of its powers and duties;
(h) "Housing development fund" means the West Virginia housing
development fund established under article eighteen of this
chapter, or any successor to all or any substantial part of its
powers and duties;
(i) "Infrastructure council" means the West Virginia
infrastructure and jobs development council established under
article fifteen-a of this chapter, or any successor to all or any
substantial part of its powers and duties;
(j) "Infrastructure fund" means the West Virginia
infrastructure fund established by article fifteen-a, section nine of this chapter;
(k) "Jobs investment trust" means the West Virginia jobs
investment trust established under chapter twelve, article seven of
this code or any successor to all or any substantial part of its
powers and duties;
(l) "Parkways authority" means the West Virginia parkways,
economic development and tourism authority established under
chapter seventeen, article sixteen-a of this code, or any successor
to all or any substantial part of its powers and duties;
(m) "Project" means a project in the state which the committee
determines is likely to foster and enhance economic growth and
development in the area of the state in which the project is
developed, for commercial, industrial, community improvement or
preservation or other proper purposes, including, without
limitation, tourism and recreational housing, land, air or water
transportation facilities and bridges, industrial or commercial
projects and facilities, mail order, warehouses, wholesale and
retail sales facilities and other real and personal properties,
including facilities owned or leased by this state or any other
project sponsor, and includes, without limitation: (1) The process
of acquiring, holding, operating, planning, financing, demolition,
construction, improving, expanding, renovation, leasing or
otherwise disposing of the project or any part thereof or interest therein; and (2) preparing land for construction and making,
installing or constructing improvements on the land, including
water or wastewater facilities or any part thereof, steam, gas,
telephone and telecommunications and electric lines and
installations, roads, bridges, railroad spurs, buildings, docking
and shipping facilities, curbs, gutters, sidewalks, and drainage
and flood control facilities, whether on or off the site;
(n) "Project sponsor" means any governmental agency or person,
or any combination thereof, which intends to plan, acquire,
construct, improve or otherwise develop a project;
(o) "Person" means any individual, corporation, partnership,
association, limited liability company or any other form of
business organization;
(p) "School building authority" means the West Virginia school
building authority established under chapter eighteen, article nine
of this code, or any successor to all or any substantial part of
its powers and duties;
(q) "State economic development agency" means the housing
development fund, economic development authority, economic
development council, infrastructure council, parkways authority,
school building authority, tourism commission and any other state
agency, council, division, body, authority, commission,
instrumentality or entity which now or in the future receives applications for the funding of, and provides funding or technical
assistance to, the planning, acquisition, construction or
improvement of a project;
(r) "Tourism commission" means the West Virginia tourism
commission established under chapter five-b, article two, section
eight of this code, or any successor to all or any substantial part
of its powers and duties.
§31-21-3. West Virginia economic development funding committee
created; members of committee; staff of committee.
(a) To expedite economic development and thereby increase job
creation and the tax base of the state, and to maximize the use of
state funding resources, there is hereby created the West Virginia
economic development funding committee. The committee is a
governmental instrumentality of the state. The exercise by the
committee of the powers conferred by this article and the carrying
out of its purpose and duties shall be considered and held to be,
and are hereby determined to be, essential governmental functions
and for a public purpose.
(b) The committee shall consist of thirteen members, including
the executive director of the housing development fund or his or
her designee, the director of the economic development authority or
his or her designee, the chair of the economic development council
or his or her designee, the chairman of the infrastructure council or his or her designee, the secretary of the department of
transportation or his or her designee, the director of the jobs
investment trust or his or her designee, the general manager of the
parkways authority or his or her designee, the executive director
of the school building authority or his or her designee, the chair
of the tourism commission or his or her designee, and four
members
representing the general public:
Provided, That no more than one
member representing the general public may be a resident of the
same county and not more than two members may be from the same
congressional district. The governor shall appoint the public
members of the committee who shall serve three-year staggered
terms. The president of the West Virginia Senate and the speaker
of the West Virginia House of Delegates shall each appoint two
members to serve as advisory members of the committee. The
commissioner of agriculture or his or her designee, the executive
director of the school building authority or his or her designee
and one representative of the higher education policy commission
shall also serve as advisory members of the committee. The
advisory members shall be ex officio, nonvoting members of the
committee.
(c) The committee shall annually elect one of its public
members as chairman, and shall appoint a secretary, who need not be
a member of the committee and who shall keep records of its proceedings. Seven members of the committee shall constitute a
quorum and the affirmative vote of at least the majority of those
members present shall be necessary for any action taken by vote of
the committee. No vacancy in the membership of the committee
impairs the rights of a quorum by vote to exercise all the rights
and perform all the duties of the committee.
(d) No member of the committee who serves by virtue of his or
her office shall receive any compensation or reimbursement of
expenses for serving as a member. The members of the committee who
represent the general public shall receive reimbursement for actual
expenses incurred in the service of the committee from the money
dedicated to infrastructure projects in the infrastructure fund.
(e) The committee shall meet at least monthly to review
projects requesting funding assistance and otherwise to conduct its
business, and shall meet more frequently if necessary.
(f) The infrastructure council shall provide office space and
staff support services for the committee and each state economic
development agency represented on the committee shall provide staff
support for the committee in the manner determined by the committee
from the money dedicated to infrastructure projects in the
infrastructure fund. The committee shall prepare an annual budget
for the review and approval of the infrastructure council.
(g) The committee shall invite to all its meetings one or more representatives of the United States department of agriculture,
rural economic community development, the United States economic
development agency and the United States small business
administration or any successors thereto. The committee shall also
invite such other appropriate parties as may be necessary to
effectuate the purposes of this article.
§31-21-4. Development of guidelines and preliminary application
for funding assistance.
(a) To implement and carry out the intent of this article, the
committee shall promulgate procedural rules in accordance with
article three, chapter twenty-nine of this code to develop
comprehensive, uniform guidelines for use by the committee in
evaluating any request by a project sponsor for funding assistance
to plan, acquire, construct, improve or otherwise develop a
project. The guidelines shall include the following factors: (1)
The actual number of full-time or full-time equivalent jobs to be
created, the time frame for job creation and the economic impact of
jobs created based on wage rates and benefit packages; the extent
that the proposed project would compete with or eliminate existing
jobs; (2) the net effect on actual full-time equivalent employment
of the proposed project and the number of temporary or seasonal
jobs provided with respect to the construction aspect of the
proposed project and the economic impact of such temporary or seasonal jobs based on wage rates and benefit packages; (3)
projected impact on the state's tax base including projections for
business and occupation taxes, corporate net income taxes, personal
income taxes, consumer sales and service taxes, and real and
personal property taxes; (4) if appropriate, the ability of the
sponsor of the project to comply with the state workers'
compensation, employment security and other state regulatory
requirements; (5) degree that private and other public moneys are
available including bonds issued with an allocation under section
twenty-one, article two-c of chapter thirteen of this code and the
extent to which these funds can be leveraged with state dollars;
(6) the cost effectiveness of the project as compared with
alternatives which achieve substantially the same economic
development benefits; (7) the project sponsor's ability to operate
and maintain the project; (8) the degree to which the project
achieves state or regional planning goals; (9) other considerations
as the committee may consider necessary or appropriate to promote
job creation and economic growth; and (10) the estimated date upon
which the project could commence if funding were available and the
estimated completion date of the project.
(b) The committee shall create an application form which shall
be used by all project sponsors requesting funding assistance from
state economic development agencies to plan, acquire, construct, improve or otherwise develop a project. The application form shall
contain all information required by all state economic development
agencies. The application shall require the project sponsor to set
forth the type and proposed location of the project; the estimated
total cost of the project; the amount of funding assistance
required and the specific uses of the funding; other sources of
funding available or potentially available for the project;
information demonstrating the need for the project and that the
proposed funding of the project is the most economically feasible
and viable alternative to completing the project; and such other
information as the committee considers necessary to enable it to
recommend the type of project financing, in terms of the kind,
amount and source of funding, which the project sponsor should
pursue and which the state economic development agency or agencies
should consider an appropriate investment of public funds, and to
otherwise carry out the intent of this article.
(c) Any documentary material, data or other writing made or
received by the committee for the purpose of furnishing assistance
to a new or existing business shall be exempt from the provisions
of article one, chapter twenty-nine-b of this code:
Provided, That
any agreement entered into or signed by the committee shall be
subject to provisions of said article as of the date the agreement
is entered into, signed or otherwise made public.
§31-21-5. Requirements for project funding assistance; review of
project preliminary applications by committee
.
(a) No project sponsor may apply for or receive any loan, loan
guarantee, grant or other funding assistance for a project from any
state economic development agency: (1) Unless the project sponsor
requiring the funding assistance first submits a completed
application to the committee on the form prepared for such purpose
by the committee pursuant to section four of this article; and (2)
except as may be recommended by the committee after consideration
of the application:
Provided, That any project sponsor which has
all state funding in place on the effective date of this act is not
required to comply with the provisions of this section:
Provided.
however, That any project to be financed by the economic
development authority where the repayment will be made with
nonpublic funds must only provide the committee with a summary of
the proposed project and a statement of economic benefits.
(b) The committee shall, within thirty days of receipt of each
completed application submitted to it, review the application and
either: (1) Make a written recommendation as to the project
financing, in terms of the kind, amount and source of funding,
which the project sponsor submitting the application should pursue
and which the state economic development agency or agencies should
consider an appropriate investment of public funds; or (2) if the committee determines that the proposed project is not eligible for
funding assistance from any state economic development agency or
that the proposed project is not otherwise an appropriate or
prudent investment of state funds, the committee shall recommend
that the project sponsor not seek funding from any state economic
development agency. A project sponsor shall include the
application and the committee's recommendations in any application
to a state economic development agency.
(c) The committee shall provide a copy of its recommendation
with respect to each application, to all appropriate state economic
development agencies, which shall take into account the committee's
recommendations with respect to a project before taking any action.
The committee shall maintain an electronic data base of
applications under review and make that database available to
appropriate economic development agencies. The committee shall
also maintain a publicly available database containing the results
of its review and general, nonpropriety information about the
projects reviewed. No state economic development agency shall take
any action inconsistent with the recommendation of the committee:
Provided, That if the state economic development agency determines
that an emergency exists and the state risks a loss of jobs or
investment opportunity then the state economic development agency
may take action inconsistent with the committee's recommendation.
(d) The committee's recommendation shall replace the review,
recommendation and approval of the council for community and
economic development required under chapter thirty-one, article
fifteen-a, section eleven of this code.
(e) In reviewing each preliminary application, the committee
shall use the engineering, financial and technical expertise of the
respective staffs of the state economic development agencies
represented on the committee so as to recommend for funding those
projects which are consistent with the purposes and intent of this
article and with the policies and priorities of this state
generally.
§31-21-6. Powers, duties and responsibilities of the committee
generally; comprehensive assessment.
(a) In addition to the powers set forth elsewhere in this
article, the committee is hereby granted, has and may exercise all
powers necessary or appropriate to carry out and effectuate the
purposes and intent of this article. The committee shall have the
power and capacity to:
(1) Coordinate the funding activities in support of economic
development;
(2) Provide consultation services to project sponsors in
connection with the planning, acquisition, improvement,
construction or development of any project;
(3) Do all other acts necessary and proper to carry out the
powers expressly granted to the committee in this article;
(4) Make and execute contracts, commitments and obligations
and other instruments necessary or convenient for the exercise of
its powers;
(5) To accept appropriations, gifts, grants, bequests and
devises and to utilize or dispose of the same to carry out its
purposes;
(6) To use moneys available to it to make, or participate in
the making, of loans or grants for eligible activities that
facilitate the committee's goals; and
(7) To enter into agreements or other transactions with any
federal or state agency, any person and any domestic or foreign
partnership, corporation, association or organization.
(b) The committee shall develop a comprehensive statewide
inventory of potential economic development sites and an assessment
of current and future needs by the first day of July, two thousand
five. The committee shall include in the assessment an
identification of the obstacles, issues and problems which prevent
or inhibit economic development throughout the state, including
financial, governmental, physical, or geographical factors and make
recommendations as the committee considers appropriate regarding
the obstacles, issues or problems identified. This comprehensive inventory and assessment shall be updated at least once in every
three-year period after the initial assessment and inventory is
completed.
§31-21-7. Economic development subaccount; deposits in fund;
disbursements to provide loans, loan guarantees,
grants and other assistance; loans, loan guarantees,
grants and other assistance shall be subject to
assistance agreements.
(a) There is hereby created in the infrastructure fund a
special restricted subaccount to be known as the "economic
development subaccount." The economic development subaccount shall
consist of any appropriations, grants, gifts, contributions, loan
proceeds or other revenues received by the committee from any
source, public or private; amounts received as payments on any
loans made from the subaccount to pay for the cost of a project;
and all income earned on moneys held in the fund. Funds in this
subaccount shall be expended as approved by the committee. Funds
in the subaccount may be used to reimburse the infrastructure
council for any administrative costs incurred by it and approved by
the committee in connection with any funding assistance made by the
committee pursuant to this article.
(b) Each loan, loan guarantee, grant or other assistance made
or provided by the committee from the economic development subaccount shall be evidenced by a loan, loan guarantee, grant or
assistance agreement as provided in section nine(d), article
fifteen-a of this chapter.
§31-21-8. Construction.
The provisions of this article are remedial and shall be
liberally construed and applied so as to promote the purposes set
out in section three of this article.
NOTE: The purpose of this bill is to create a council
comprised of the major economic development funding agencies to
coordinate all economic development funding from state resources.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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