Email: Chapter 31
§31-1-1.
Repealed.
Acts, 2002 Reg. Sess., Ch. 25.
§31-1-10.
Repealed.
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§31-1-100.
Repealed.
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§31-1-101.
Repealed.
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§31-1-102.
Repealed.
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§31-1-103.
Repealed.
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§31-1-104.
Repealed.
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§31-1-105.
Repealed.
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§31-1-106.
Repealed.
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§31-1-107.
Repealed.
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§31-1-108.
Repealed.
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§31-1-109.
Repealed.
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§31-1-11.
Repealed.
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§31-1-110.
Repealed.
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§31-1-111.
Repealed.
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§31-1-112.
Repealed.
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§31-1-113.
Repealed.
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§31-1-114.
Repealed.
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§31-1-115.
Repealed.
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§31-1-116.
Repealed.
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§31-1-117.
Repealed.
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§31-1-118.
Repealed.
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§31-1-119.
Repealed.
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§31-1-12.
Repealed.
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§31-1-120.
Repealed.
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§31-1-121.
Repealed.
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§31-1-122.
Repealed.
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§31-1-123.
Repealed.
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§31-1-124.
Repealed.
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§31-1-125.
Repealed.
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§31-1-126.
Repealed.
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§31-1-127.
Repealed.
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§31-1-128.
Repealed.
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§31-1-129.
Repealed.
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§31-1-13.
Repealed.
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§31-1-130.
Repealed.
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§31-1-131.
Repealed.
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§31-1-132.
Repealed.
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§31-1-133.
Repealed.
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§31-1-134.
Repealed.
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§31-1-135.
Repealed.
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§31-1-136.
Repealed.
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§31-1-137.
Repealed.
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§31-1-138.
Repealed.
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§31-1-139.
Repealed.
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§31-1-14.
Repealed.
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§31-1-140.
Repealed.
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§31-1-141.
Repealed.
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§31-1-142.
Repealed.
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§31-1-143.
Repealed.
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§31-1-144.
Repealed.
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§31-1-145.
Repealed.
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§31-1-146.
Repealed.
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§31-1-147.
Repealed.
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§31-1-148.
Repealed.
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§31-1-149.
Repealed.
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§31-1-15.
Repealed.
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§31-1-150.
Repealed.
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§31-1-151.
Repealed.
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§31-1-152.
Repealed.
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§31-1-153.
Repealed.
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§31-1-154.
Repealed.
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§31-1-155.
Repealed.
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§31-1-156.
Repealed.
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§31-1-157.
Repealed.
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§31-1-158.
Repealed.
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§31-1-159.
Repealed.
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§31-1-16.
Repealed.
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§31-1-160.
Repealed.
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§31-1-17.
Repealed.
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§31-1-18.
Repealed.
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§31-1-19.
Repealed.
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§31-1-2.
Repealed.
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§31-1-20.
Repealed.
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§31-1-21.
Repealed.
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§31-1-22.
Repealed.
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§31-1-23.
Repealed.
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§31-1-24.
Repealed.
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§31-1-25.
Repealed.
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§31-1-26.
Repealed.
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§31-1-27.
Repealed.
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§31-1-28.
Repealed.
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§31-1-29.
Repealed.
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§31-1-3.
Repealed.
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§31-1-30.
Repealed.
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§31-1-31.
Repealed.
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§31-1-32.
Repealed.
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§31-1-33.
Repealed.
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§31-1-34.
Repealed.
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§31-1-35.
Repealed.
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§31-1-36.
Repealed.
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§31-1-37.
Repealed.
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§31-1-38.
Repealed.
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§31-1-39.
Repealed.
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§31-1-4.
Repealed.
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§31-1-40.
Repealed.
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§31-1-41.
Repealed.
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§31-1-42.
Repealed.
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§31-1-43.
Repealed.
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§31-1-44.
Repealed.
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§31-1-45.
Repealed.
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§31-1-46.
Repealed.
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§31-1-47.
Repealed.
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§31-1-48.
Repealed.
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§31-1-49.
Repealed.
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§31-1-5.
Repealed.
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§31-1-50.
Repealed.
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§31-1-51.
Repealed.
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§31-1-52.
Repealed.
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§31-1-53.
Repealed.
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§31-1-54.
Repealed.
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§31-1-55.
Repealed.
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§31-1-56.
Repealed.
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§31-1-57.
Repealed.
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§31-1-58.
Repealed.
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§31-1-59.
Repealed.
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§31-1-6.
Repealed.
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§31-1-60.
Repealed.
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§31-1-61.
Repealed.
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§31-1-62.
Repealed.
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§31-1-63.
Repealed.
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§31-1-64.
Repealed.
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§31-1-65.
Repealed.
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§31-1-66.
Repealed.
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§31-1-67.
Repealed.
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§31-1-68.
Repealed.
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§31-1-69.
Repealed.
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§31-1-7.
Repealed.
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§31-1-70.
Repealed.
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§31-1-71.
Repealed.
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§31-1-72.
Repealed.
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§31-1-73.
Repealed.
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§31-1-74.
Repealed.
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§31-1-75.
Repealed.
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§31-1-76.
Repealed.
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§31-1-77.
Repealed.
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§31-1-78.
Repealed.
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§31-1-79.
Repealed.
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§31-1-8.
Repealed.
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§31-1-80.
Repealed.
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§31-1-81.
Repealed.
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§31-1-82.
Repealed.
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§31-1-83.
Repealed.
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§31-1-84.
Repealed.
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§31-1-85.
Repealed.
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§31-1-86.
Repealed.
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§31-1-87.
Repealed.
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§31-1-88.
Repealed.
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§31-1-89.
Repealed.
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§31-1-9.
Repealed.
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§31-1-90.
Repealed.
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§31-1-91.
Repealed.
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§31-1-92.
Repealed.
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§31-1-93.
Repealed.
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§31-1-94.
Repealed.
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§31-1-95.
Repealed.
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§31-1-96.
Repealed.
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§31-1-97.
Repealed.
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§31-1-98.
Repealed.
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§31-1-99.
Repealed.
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§31-1A-1.
Repealed.
Acts, 1996 Reg. Sess., Ch. 256.
§31-1A-10.
Repealed.
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§31-1A-11.
Repealed.
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§31-1A-12.
Repealed.
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§31-1A-13.
Repealed.
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§31-1A-14.
Repealed.
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§31-1A-15.
Repealed.
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§31-1A-16.
Repealed.
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§31-1A-17.
Repealed.
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§31-1A-18.
Repealed.
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§31-1A-19.
Repealed.
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§31-1A-2.
Repealed.
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§31-1A-20.
Repealed.
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§31-1A-21.
Repealed.
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§31-1A-22.
Repealed.
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§31-1A-23.
Repealed.
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§31-1A-24.
Repealed.
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§31-1A-25.
Repealed.
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§31-1A-26.
Repealed.
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§31-1A-27.
Repealed.
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§31-1A-28.
Repealed.
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§31-1A-29.
Repealed.
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§31-1A-3.
Repealed.
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§31-1A-30.
Repealed.
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§31-1A-31.
Repealed.
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§31-1A-32.
Repealed.
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§31-1A-33.
Repealed.
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§31-1A-34.
Repealed.
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§31-1A-35.
Repealed.
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§31-1A-36.
Repealed.
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§31-1A-37.
Repealed.
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§31-1A-38.
Repealed.
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§31-1A-39.
Repealed.
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§31-1A-4.
Repealed.
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§31-1A-40.
Repealed.
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§31-1A-41.
Repealed.
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§31-1A-42.
Repealed.
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§31-1A-43.
Repealed.
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§31-1A-44.
Repealed.
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§31-1A-45.
Repealed.
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§31-1A-46.
Repealed.
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§31-1A-47.
Repealed.
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§31-1A-48.
Repealed.
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§31-1A-49.
Repealed.
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§31-1A-5.
Repealed.
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§31-1A-50.
Repealed.
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§31-1A-51.
Repealed.
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§31-1A-52.
Repealed.
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§31-1A-53.
Repealed.
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§31-1A-54.
Repealed.
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§31-1A-55.
Repealed.
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§31-1A-56.
Repealed.
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§31-1A-57.
Repealed.
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§31-1A-58.
Repealed.
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§31-1A-59.
Repealed.
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§31-1A-6.
Repealed.
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§31-1A-60.
Repealed.
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§31-1A-61.
Repealed.
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§31-1A-62.
Repealed.
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§31-1A-63.
Repealed.
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§31-1A-64.
Repealed.
Acts, 1996 Reg. Sess., Ch. 256.
§31-1A-65.
Repealed.
Acts, 1996 Reg. Sess., Ch. 256.
§31-1A-66.
Repealed.
Acts, 1996 Reg. Sess., Ch. 256.
§31-1A-67.
Repealed.
Acts, 1996 Reg. Sess., Ch. 256.
§31-1A-68.
Repealed.
Acts, 1996 Reg. Sess., Ch. 256.
§31-1A-69.
Repealed.
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§31-1A-7.
Repealed.
Acts, 1996 Reg. Sess., Ch. 256.
§31-1A-8.
Repealed.
Acts, 1996 Reg. Sess., Ch. 256.
§31-1A-9.
Repealed.
Acts, 1996 Reg. Sess., Ch. 256.
§31-2-1. Railroad companies to be common carriers; general powers.
Every railroad company heretofore incorporated and organized under the laws of this state, or under the laws of any other state, and authorized or licensed to do business in this state, and every such company which hereafter shall be incorporated and organized under the provisions of article one of this chapter, or authorized or licensed to transact business under said article, is a common carrier, and is authorized to acquire, construct, and own, maintain, operate and hold, railway lines, plants and systems, and any and all other suitable facilities for, and to engage in transporting persons and all commodities, objects and things which are subjects of commerce or of transportation by any and all means and methods, which are now used, or which may hereafter be developed, for such purpose.
No such railroad company shall engage in any other business in this state, except as hereinafter authorized.
§31-2-2. Right to own and dispose of property.
Every such railroad company shall have the right to purchase, take by voluntary gift or grant, acquire by condemnation, own, hold and use, all real estate and other property necessary for its corporate objects and purposes, and, when any property so acquired shall be no longer required for its use and purposes, to sell and convey the same.
§31-2-3. Right to produce electricity for own uses.
Any such railroad company may acquire, construct, own, hold and operate plants and properties for the generation, production and transportation of electricity in this state, for its corporate uses and purposes: Provided, That it shall not build or construct any hydroelectric plant or any dams or impounding basins for the use of such plant in any waters of the state, without having first obtained the consent of the Public Service Commission of the state so to do.
§31-2-4. Right to dispose of surplus electricity, power, etc.
Any such railroad company, owning and operating any plant in this state for the production of electricity and power primarily for its own use, may sell and dispose of any surplus electricity or power not required for its use, under such regulations as are prescribed by law or by the Public Service Commission of the state by authority conferred upon it by any law: Provided, That in the case of a corporation engaged or heretofore engaged in the operation of street or interurban railways by electricity, or other motive power than steam, it shall have the right to furnish and sell to the public electricity, water and gas, either natural or artificial, or both, and to purchase, hold and use such property, rights, privileges and franchises as may be necessary in the generation, production, manufacture and sale to the public of such electricity and gas, and in the storage, filtration, distribution, delivery and sale to the public of water: Provided further, That no right, privilege or franchise granted under this section or now held shall be exercised without first obtaining from the Public Service Commission, if provided by law, the authority so to do, and, in the event of sales within a municipality until after having first procured a franchise therefor from the municipality in which it seeks to operate.
§31-2-5. Buying, selling or transporting coal and coke.
It shall be unlawful for any railroad corporation to engage, directly or indirectly, in the business of buying and selling coal or coke, or to promise, pledge or lend its credit, money or other property or thing of value to another, either natural or corporate, engaged in such business, but nothing herein shall prevent such corporation from purchasing such articles for its own consumption, or when it is the owner of any such commodities from selling and shipping the same: Provided, That in doing so, such corporation shall not discriminate in rates, distribution of cars or otherwise against other shippers of like commodities on its lines: Provided further, That when such company has the right to sell either of such commodities, and is unable from any cause to fill any bona fide contracts it may have made to supply such commodities, or either of them, it may purchase them to enable it to fill such contracts.
Every railroad corporation, along whose line of railroad the industry of mining coal or manufacturing coke is carried on, shall without discrimination between or among shippers, and without unnecessary delay, make a reasonable provision for the transportation of all such coal and coke offered for transportation over its railroad, and no such railroad corporation shall discriminate in rates, distribution of cars or otherwise against or among shippers of coal or coke offered for shipment on its line or lines.
The circuit and criminal courts of every county through or into which the railroad of any such railroad corporation violating any or either of the provisions of this section may pass, shall have concurrent jurisdiction of all the offenses under and violations of the provisions of this section.
Any railroad corporation or officer or agent thereof who shall knowingly and wilfully violate any of the provisions of this section, shall, for each and every such offense, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than fifty nor more than $500.
§31-2-6. Charter to show principal cities and towns to be served by railroad.
Any charter issued under article one of this chapter incorporating any railroad company for the purpose of constructing a railroad in the State of West Virginia shall name the principal towns and cities which are proposed to be reached and served by such railroad.
§31-2-7. Filing map of railroad.
Every railroad corporation shall, within a reasonable time after its railroad is located in this state, cause to be made a map and profile thereof, with the names of the owners of the lands through which it runs, and of the noted places along the same stated thereon, and file the same in the office of the Secretary of State, and in the office of the clerk of the county court of each county in which any part of said road is located.
§31-2-8. Warning of approach of train at crossings; crossing railroad tracks.
A bell or steam whistle shall be placed on each locomotive engine, which shall be rung or whistled by the engineer or fireman, at a distance of at least sixty rods from the place where the railroad crosses any public street or highway, and be kept ringing or whistling for a time sufficient to give due notice of the approach of such train before such street or highway is reached, and any failure so to do is a misdemeanor punishable by a fine of not exceeding $100; and the corporation owning or operating the railroad shall be liable to any party injured for all damages sustained by reason of such neglect. When the tracks, other than switch or sidetracks, of two railroads cross each other, or in any way connect at a common grade, the crossing shall be made and kept in repair, and watchmen maintained thereat at the joint expense of the companies owning the tracks; all trains or engines passing over such tracks shall come to a full stop not nearer than two hundred feet nor farther than eight hundred feet from the crossing and shall not cross until signaled so to do by the watchman, nor until the way is clear; and when two passenger or freight trains approach the crossing at the same time, the train on the road first built shall have precedence if the tracks are both main tracks over which all passengers and freights on the roads are transported; but if only one track is such main track, and the other is a side or depot track, the train on the main track shall have precedence; and if one of the trains is a passenger train and the other a freight train, the former shall take precedence; and regular trains on time shall take precedence over trains of the same grade not on time, and engines with cars attached not on time shall take precedence over engines without cars not on time: Provided, That if such two railroads crossing each other, or in any way connecting at a common grade, by works or fixtures to be erected by them render it safe to pass over such crossing without stopping, and such works and fixtures first be approved by the Public Service Commission of West Virginia, and the plan thereof for such crossing designating the plan of crossing has been filed with said commission and approved by it, the provisions of this section relating to railroad crossings shall not apply.
§31-2-9. Signboards or warning notices at crossings.
Every railroad company shall, at every place where a road or street crosses its railroad on the same level, erect and maintain suitable signboards or notices of warning apprising persons of the danger in crossing its tracks. All such signboards or notices shall be of the design and construction and shall be located in the manner required or approved by the state road commission. Any railroad company failing to comply with the provisions of this section shall be fined $5 for each week that any such failure continues.
§31-2-10. Watering troughs for livestock.
All railroads maintaining stations that are shipping points for livestock, where there are as many as one thousand head shipped in any one year, shall wherever practicable place within the stock pens owned or controlled by such railroad company suitable watering troughs which shall, at all times during the time stock is being shipped from the station, be supplied with pure drinking water such as stock will drink. It shall be considered practicable where there are waterworks from which water can be obtained (city or otherwise) by piping not to exceed one fourth of a mile.
Any railroad company which refuses to comply with this section shall be guilty of a misdemeanor and, shall be fined not less than $50 nor more than $100 for each offense. And each day that such pens are without water during the shipping season shall be considered a separate offense.
§31-2-11. Consolidation of railroad properties.
Any railroad company in this state may, with the assent and approval of the Public Service Commission, consolidate its properties and franchises with the property and franchises of another railroad company or other railroad companies, or obtain the possession and control of the lines and tracks of another railroad company or of other railroad companies, by purchase or lease, whether such railroads are or are not parallel or competing lines.
§31-2-12. Passing into other states.
The railroad or any extension or lateral or branch line of any railroad company may pass out of this state into any other state, with the assent of such state, and back again into this state as often as may be found necessary or convenient in locating such railroad, extension or lateral or branch line.
§31-2-13. Enumerated powers.
In furtherance, and not in limitation, of the general or other powers of any railroad company, every such railroad company shall have the following powers, it being provided that the enumeration herein of specific powers shall not limit or restrict in any manner the general or other powers of such company:
(a) To cause such examination and survey for its proposed railroad or any extension or lateral or branch line, to be made as may be necessary to the selection of the most advantageous route, and for such purpose such company or its officers, agents, engineers or employees, may enter upon the lands or waters of any person or corporation; but subject to responsibility for all damages occasioned thereby.
(b) To lay out its road, not exceeding one hundred and fifty feet in width, with such additional width as may be necessary for the purpose of excavations and embankments for the proper construction, repair and security of the railroad; and to construct such road.
(c) To change or relocate at any time the line or lines, grade or location of its railroad, or any part thereof, and to construct a new line or lines, grade or location for the same for the purpose of reducing grades or curvature, or for the purpose of avoiding annoyance to public travel or dangerous or difficult or expensive curves or grades, or unsafe, impracticable, unsubstantial or expensive, or otherwise undesirable, locations, routes, grounds or foundations, or for otherwise improving the line or lines of railroad, or for other reasonable cause, and to construct cutoffs for any such purpose or cause; but this provision shall not be construed to give authority to such railroad company to abandon, unless otherwise provided by law, the use of such line or lines, as formerly located, if the continued use thereof shall be necessary to serve industries or communities thereon.
(d) To change the general route or termini of a proposed railroad, before the same has been originally completed; but such change of general route or termini before completion shall only be made when authorized by a majority of the stock of such corporation voting thereon at an annual or a special meeting of the stockholders, and it shall operate as a release of the right of such corporation to build on the abandoned location, and the order or resolution of the stockholders authorizing such change shall be certified by the corporation to the Secretary of State, and recorded in his office. All the provisions of law shall apply to the changed or new route, termini, location, grade and line mentioned in this subdivision or the last preceding subdivision.
(e) To construct its railroad across, along or upon any stream of water, watercourse, street, highway, state or county-district road, or canal, which the route of such railroad shall intersect or touch; but the exercise of such power shall be in accordance with the provisions of chapters seventeen and fifty-four of this code in relation thereto; but nothing in this chapter contained shall be construed to authorize the construction of any railroad upon or across any street, in the inhabited portion of a city, or incorporated town or village, without the assent of the corporation of such city, town or village.
(f) To take and hold under any grant or ordinance made by a municipal corporation any interest or right such municipal corporation may have in any street, alley or public ground, and such railroad corporation may in exchange therefor, in whole or in part, dedicate or otherwise secure to public use, another street, alley or parcel of ground out of real estate owned by such railroad corporation whether acquired by purchase or condemnation; or under an agreement with such municipal corporation may condemn land for use as such new street, alley or public ground, in the same manner as it may condemn land for its own use.
(g) To cross at grade, or to cross over or under, intersect, join and unite its railroad with any other railroad now built and constructed, or hereafter to be built and constructed within this state, at any point on its route, and upon the grounds of such other railroad company, with the necessary turnouts, sidings and switches, and other conveniences in furtherance of the object of its connections, and every corporation whose railroad is, or shall be hereafter intersected by any new railroad, shall unite with the corporation owning such new railroad in forming such intersections and connections and grant the facilities aforesaid; and if the two corporations cannot agree upon the amount of compensation to be made therefor, or the points and manner of such crossing and connections, the same shall be ascertained and determined in the manner prescribed by chapter fifty-four of this code.
(h) To construct, maintain and operate lateral and branch lines; to use and operate any part of its main line and of a lateral or branch line or lines when completed as though the whole of its railroad was completed; and to construct, maintain and operate telegraph and telephone lines along the line of its railroad and the lateral and branch lines thereof, and connecting with any of its offices, works and improvements.
(i) To erect or otherwise acquire and maintain all necessary or convenient structures, fixtures, machinery and facilities for the construction, maintenance or operation of the railroad or business of such corporation.
(j) To regulate the time and manner in which passengers and property shall be transported, and the compensation to be paid therefor, subject, nevertheless, to the provisions of any law that has been or may be hereafter enacted.
(k) From time to time to borrow money for all or any of the purposes of the corporation and to issue, sell, pledge, dispose of and transfer bonds, evidences of indebtedness and preferred stock, or any of them, for any money so borrowed; and to issue, sell, pledge, dispose of and transfer its stock, bonds and evidences of indebtedness, or any of them, for land, money, labor, property or materials for all or any of the purposes of such corporation; and in case it be found necessary to do so, such corporation may sell and dispose of its stocks, bonds and evidences of indebtedness, or any of them, at less than the par value thereof. And such corporation shall have the power from time to time to mortgage or pledge its property, real and personal, and franchises, to secure any bonds, stock, evidences of indebtedness, or any of them. And the directors of such corporation may be empowered, in pursuance of any order or resolution of the stockholders, to confer on any holder of any such bond for money borrowed by it the right to convert the principal due or owing thereon into stock of such corporation at such time, on such terms and under such regulations as may be provided in such order or resolution or the bylaws of such corporation.
(l) With the assent of the holders of two thirds of its stock, had by a vote at a stockholders' meeting, to become surety for, or guarantee, the bonds, stock or debt of any railroad company, or in any other manner aid such railroad company in the construction of its railroad or other works or improvements.
§31-2-14. Foreclosure or judicial sale of railroad company.
If a sale shall be made under a trust deed or mortgage executed by a railroad corporation on all its works and property, or if the sale of such property shall be made under the decree of a court, and there be a conveyance to any person or persons pursuant to any such sale, said sale and conveyance shall pass to the purchaser at such sale, not only the works and property of the corporation as they were at the time of making the trust deed or mortgage, but any works which the company may, after that time and before the sale, have constructed, and all other property of which it may be possessed at the time of the sale, other than debts due to it. Upon such conveyance to the purchaser such company shall ipso facto be dissolved, and such purchaser shall forthwith be a corporation by any name which may be set forth in such conveyance, or in any writing signed by him or them, and recorded in the office of the clerk of the county court of any county wherein the property so sold, or any part thereof, is situated.
§31-2-15. Same -- Rights and duties of purchaser.
The corporation created by or in consequence of such sale and conveyance shall succeed to all such franchises, rights and privileges, but not immunity from taxation, and perform all such duties as would have been had, or should have been performed by the first company, but for such sale and conveyance; save only, that the corporation so created shall not be entitled to debts due to the first company, and shall not be liable for any debts of, or claims against the first company, which may not be expressly assumed in the contract of purchase; and that the whole profits of the business done by such corporation shall belong to such purchaser and his assigns. His interest in the corporation shall be personal estate, and he or his assigns may create so many shares of stock therein as he or they may think proper, not exceeding together the amount of stock in the first company at the time of the sale, and assign the same in a book kept for that purpose. Such shares shall thereupon be on the footing of shares in corporations generally, except only that the first meeting of the stockholders shall be held on such day and at such place as shall be fixed by such purchaser, of which 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 such publication shall be each county in the state wherein such corporation may do business.
§31-2-16. Railroad company pesticide use.
(a) No later than seven days before applying a pesticide to a rightofway that a railroad company owns or maintains, the railroad company shall provide pesticide safety information, which may be obtained by the railroad company's contracted pesticide applicator, by posting at affected on-duty railroad locations and through train bulletins, dispatcher messages, or other required documentation for each train and engine crew that will be working in the affected pesticide spray area. Additionally, the railroad company shall provide appropriate documentation to ensure prompt notification for maintenance of way, mechanical, signal employees, or other rail workers that will be working in the affected pesticide spray area. A railroad company shall include all of the following in the safety information provided under this subdivision:
(1) The location and description of the area to be treated.
(2) The name of the pesticide, its active ingredients, and its registration number under 7 U.S.C. §§ 136 et seq. The material safety data sheet(MSDS) for the pesticide shall satisfy this purpose.
(3) The approximate date and time that the pesticide is to be applied.
(4) Any restricted entry interval specified on the pesticide labeling. The MSDS for the pesticide shall satisfy this purpose: Provided, That the railroad company shall not require an employee to reenter the pesticide spray area prior to the requirements specified by the MSDS on the pesticide being utilized: Provided however, That train and/or on-track movement is not prohibited.
(5) A description of where the information required to be on the pesticide label under 7 U.S.C. §§ 136 et seq or under the provisions of article sixteen-a, chapter nineteen of this code is available for review. The MSDS for the pesticide shall satisfy this purpose.
(6) Emergency medical contact information.
(b) A railroad company shall keep the information required by subsection (a) posted at the location accessible to employees of the railroad for at least thirty days after the day of application.
(c) No later than seven days before applying a pesticide to a right-of-way that a railroad company owns or maintains, the railroad company shall provide all of the following to each individual who directly supervises employees who work in the area to be treated:
(1) The information described in subdivision (2) to (6) of subsection (a); and
(2) A description of the central location where the railroad company provides the pesticide safety information to employees under the provisions of subsection (a).
(d) A railroad company shall make available to the public on its Internet site a description of how to obtain answers to questions about pesticide use by the railroad company, including a telephone number for the railroad and any tollfree number maintained by the railroad company to provide information about pesticide use.
(e) A railroad company shall provide annual pesticide safety training. This training may coincide with the annual railroad operating rules class or at any other operating or safety training class that is scheduled annually. This training shall be provided to railroad employees who work along railroad rightsofway and in rail yards and to other employees who, due to the nature of their employment, may work in areas to which pesticides have been applied. It is the duty of the railroad company to keep records for each training session, which should include, but not be limited to, the date of the training session, the employees attending, and the name of the trainer and the trainer's employer. In the training under this subsection, a railroad company shall include, but not be limited to, information about restricted entry intervals, requirements for personal protective equipment, how to read pesticide labels, and incident and complaint reporting.
(f) For purposes of this section, the term "pesticide" is defined by section three, article sixteen-a, chapter nineteen of this code.
§31-2-17. Selling railroad scrap metal.
(a) As used in this section:
(1) "Company" is a railroad carrier as defined in section twenty-eight, article three, chapter sixty-one;
(2) "Railroad scrap metal" means any materials derived from railroad track, railroad track material, worn or used links, pins, journal bearings, or other worn, used, or detached appendages of railroad equipment or railroad track;
(3) "Purchaser" means any person in the business of purchasing railroad scrap metal, any salvage yard owner or operator, any public or commercial recycling facility owner or operator and any agent or employee thereof, or other individual or entity who purchase any form of railroad scrap metal;
(4) "Confusion of goods" means the intended mixture of similar railroad scrap metal done purposely by the purchaser without authorization of right or title to the railroad scrap metal.
(b) Only a duly authorized individual, agent, officer or employee of a company may sell or dispose of railroad scrap metal owned by the company. Any sale or disposition of railroad scrap metal made by any unauthorized individual is void: Provided, That the purchaser knowingly purchased company railroad scrap metal.
(c) All sales or disposition of company railroad scrap metal must:
(1) Be in quantities equal to or greater than one ton;
(2) Be accompanied by a bill of sale or other written evidence of authorization to sell the railroad scrap metal, a copy of which shall be retained by the purchaser and the duly authorized seller of railroad scrap metal; and,
(3) Comply with other lawful requirements regarding the sale and purchase of railroad scrap metal.
(d) If a duly authorized individual sells or disposes of railroad scrap metal in quantities less than one ton, or without delivering a bill of sale or other written evidence of authorization from the company for sale or disposition of railroad scrap metal to the purchaser, the company shall not thereafter be entitled to the benefit of subsections (g) through (i) of this section.
(e) Before knowingly acquiring railroad scrap metal the purchaser shall attempt to ascertain the lawful ownership thereof, whether by evidence of a bill of sale from the company, or other form of written authorization from the company for sale or disposition of railroad scrap metal to the purchaser.
(f) In any civil action where the company claims to be the rightful owner of railroad scrap metal in the possession of a purchaser, the company may, in addition to any other relief to which the company may be entitled, seek an immediate order from the court to physically preserve any railroad scrap metal which is the subject of the suit, and any other metals with which they may have been confused, while the suit is pending.
(g) In a civil action regarding rightful possession and ownership of railroad scrap metal, if the purchaser cannot produce the bill of sale or other written evidence of authorization to sell the railroad scrap metal, the court shall presume that the subject railroad scrap metal was unlawfully taken from the company.
(h) The purchaser claiming ownership of the railroad scrap metal in controversy may rebut this presumption and prove a lawful right or title to the subject railroad scrap metal, but in the absence of adequate proof, the company shall be held to be the general owner of the subject railroad scrap metal, and shall be entitled to immediate possession of the railroad scrap metal in controversy.
(i) If the court finds that any portion, or all of the railroad scrap metal in controversy was unlawfully obtained by the purchaser, and mixed or confused with other railroad scrap metal, it shall be deemed a confusion of goods. In the case of a confusion of goods, the purchaser loses any right in all mixed railroad scrap metal unless the railroad scrap metal can be identified and separated among the company and the purchaser.
(j) In a civil action regarding rightful possession and ownership of railroad scrap metal, if the court finds that the purchaser knowingly purchased company railroad scrap metal and failed to attempt to ascertain that the person selling the railroad scrap metal had a legal right to do so, the court shall award the company costs and attorneys fees related to that action.
§31-2A-1. Definitions.
As used in this article:
(a) "Carrier,""railroad" or "railroad company" means a common carrier by railroad.
(b) "Train" or "trains" mean engines, cars and any type of railroad equipment or rolling stock, or any part thereof, capable of blocking any crossing of a railroad track or tracks and any public street, road or highway.
§31-2A-2. Blocking of crossing prohibited; time limit.
(a) It is unlawful for any railroad company, except in an emergency, to order, allow or permit the operation of or to operate or to so operate its system so that a train blocks the passage of vehicular traffic over the railroad crossing of any public street, road or highway of this state for a period longer than ten minutes. This section does not apply to an obstruction of any such street, road or highway caused by a continuously moving train or caused by circumstances wholly beyond the control of the railroad, but does apply to all other obstructions as aforesaid, including, but not limited to, those caused by a stopped train or a train engaged in switching, loading or unloading operations: Provided, That if any such train is within the jurisdictional limits of any municipality which now has or hereafter shall have in force and effect an ordinance limiting the time a railroad crossing may be blocked by a train, such ordinance shall govern, and the provisions of this article shall not be applicable.
(b) Upon receiving notification from a law-enforcement officer, member of a fire department, operator of an emergency medical vehicle, or a member of an emergency services provider that emergency circumstances require the immediate clearing of a public highway railroad grade crossing, the members of the train crew of the train, railroad car or equipment, or engine blocking such crossing shall immediately notify the appropriate railroad dispatcher of the pending emergency situation. Upon receipt of notice of such emergency circumstances by the train crew or dispatcher, the railroad shall immediately clear the crossing, consistent with the safe operation of the train.
§31-2A-3. Responsibility of railroad company.
The railroad company shall be solely responsible for the acts of its agents and employees in violating any provision of this article or any provision of any ordinance of any municipality or any provision of any order of a county or other public authority regulating the period of time any such street, road or highway may be so blocked by a train.
§31-2A-4. Presumption.
There shall be a rebuttable presumption that a train is operated by the carrier whose marks, numbers, signs and symbols of identification appear on the engine or caboose of such train.
§31-2A-5. Service of process.
Process issuing for a violation of this article may be served upon the engineer or conductor of the train causing a violation of the provisions of this article or any other officer, agent or attorney-in-fact of the railroad company authorized by law to receive service of summons or other process issuing against said railroad company.
§31-2A-6. Fines and penalties.
(a) Any railroad company, carrier or railroad violating the provisions of subsection (a), section two of this article is guilty of misdemeanor and, upon conviction thereof, shall be fined not less than $150; upon a second conviction occurring at the same crossing within one year thereafter, shall be fined not less than $250; and upon a third or subsequent conviction occurring at the same crossing within one year after the first conviction, shall be fined not less than $350.
(b) Any railroad company, carrier or railroad violating the provisions of subsection (b), section two of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000; upon a second conviction occurring at the same crossing within one year thereafter, shall be fined not less than $2,500; and upon a third or subsequent conviction occurring at the same crossing within one year after the first conviction, shall be fined not less than $5,000.
§31-2A-7. Severability.
If any provision of this article or the application thereof to any person or circumstance be held invalid, such invalidity shall not affect other provisions or applications of the article, and to this end the provisions of this article are hereby declared to be severable.
§31-2B-1. Legislative findings and purposes.
The Legislature hereby finds that for the purpose of protecting the lives of workmen, other persons and railroad equipment there shall be maintained at the rear of cabooses illumination when they are being pushed during hours of darkness.
§31-2B-2. Illumination requirements; time period for implementation; application of requirements.
(a) From the effective date of this article, there shall be maintained at the rear of all cabooses, while cabooses are being pushed during the hours of darkness, either a handheld or installed backup light which shall have sufficient candlepower to illuminate the track for a distance of at least two hundred fifty feet under clear atmospheric conditions on all local and mine runs.
(b) Every railroad company operating within this state shall be required to comply with the provisions of this article, but shall have one year from the effective date hereof to comply with such requirements.
(c) The provisions of this article shall apply to all local and mine run cabooses.
§31-2B-3. Repair and maintenance; exemption.
Any railroad company operating a caboose to which the illumination requirements of section two of this article apply shall not be in violation of said article if the failure of lighting equipment required under the provisions of this article is corrected at the first point maintenance supplies are available, or in the case of repairs, the first point at which materials and repair facilities are available and repairs can reasonably be made.
§31-2B-4. Runs originating from out of state.
Runs originating from without the State of West Virginia shall be exempt from the requirements of this article.
§31-2B-5. Enforcement penalty.
The provisions of this article shall be enforced by the Public Service Commission. If any railroad company violates the provisions of this article, it shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $500 for each violation.
§31-2B-6. No individual responsibility.
With the exception of intentional misconduct or negligence on the part of the employee, this article shall not be construed to impose any individual responsibility upon any railroad employee for damage to his employer due to breakage or loss of use while the employee is engaged in handling the lights as required by this article.
This article shall be construed as imposing upon the employer responsibility for securing and maintaining the lights required by this article.
§31-3-1. Consent of State to construction of booms.
[Repealed.]
§31-3-2. Powers of boom company; boomage; lien; sale for tolls; free passage of logs.
[Repealed.]
§31-3-3. Injuries to property of boom company.
[Repealed.]
§31-3-4. Measurement of timber in boom.
[Repealed.]
§31-3-5. Removal of timber lodging on lands; damages; taking or carrying away without authority.
[Repealed.]
§31-3-6. Obstruction of use of stream to drive logs into boom.
[Repealed.]
§31-3-7. Liability of boom company for timber within boom.
[Repealed.]
§31-3-8. Meaning of “logs or timber.”
[Repealed.]
§31-3-9. Injury to mill and other riparian property.
[Repealed.]
§31-3-10. Filing marks and brands before driving logs.
[Repealed.]
§31-3-11. Obstruction of public roads or fords.
[Repealed.]
§31-4-1.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-10.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-11.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-12.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-13.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-14.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-15.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-16.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-17.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-18.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-19.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-2.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-20.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-3.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-4.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-5.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-6.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-7.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-8.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4-9.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4A-1.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4A-10.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4A-11.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4A-12.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4A-13.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4A-14.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4A-15.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4A-16.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4A-17.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4A-2.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4A-3.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4A-4.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4A-5.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4A-6.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4A-7.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4A-8.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4A-9.
Repealed.
Acts, 1963 Reg. Sess., Ch. 193.
§31-4B-1.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4B-2.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4B-3.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4B-4.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4B-5.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4B-6.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4B-7.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4C-1.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4C-2.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4C-3.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4C-4.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4C-5.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4D-1. Definitions.
In this article, unless the context otherwise requires:
(a) "Assignment" includes any written stock power, bond power, bill of sale, deed, declaration of trust or other instrument of transfer.
(b) "Claim of beneficial interest" includes a claim of any interest by a decedent's legatee, distributee, heir or creditor, a beneficiary under a trust, a ward, a beneficial owner of a security registered in the name of a nominee, or a minor owner of a security registered in the name of a custodian, or a claim of any similar interest, whether the claim is asserted by the claimant or by a fiduciary or by any other authorized person on his behalf, and includes a claim that the transfer would be in breach of fiduciary duties.
(c) "Corporation" means a private or public corporation, association or trust issuing a security.
(d) "Fiduciary" means an executor, administrator, trustee, guardian, committee, conservator, curator, tutor, custodian or nominee.
(e) "Person" includes an individual, a corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal or commercial entity.
(f) "Security" includes any share of stock, bond, debenture, note or other security issued by a corporation which is registered as to ownership on the books of the corporation.
(g) "Transfer" means a change on the books of a corporation in the registered ownership of a security.
(h) "Transfer agent" means a person employed or authorized by a corporation to transfer securities issued by the corporation.
§31-4D-2. Registration in name of fiduciary.
A corporation or transfer agent registering a security in the name of a person who is a fiduciary or who is described as a fiduciary is not bound to inquire into the existence, extent, or correct description of the fiduciary relationship, and thereafter the corporation and its transfer agent may assume without inquiry that the newly registered owner continues to be the fiduciary until the corporation or transfer agent receives written notice that the fiduciary is no longer acting as such with respect to the particular security.
§31-4D-3. Transfer pursuant to assignment by fiduciary.
Except as otherwise provided in this article, a corporation or transfer agent making a transfer of a security pursuant to an assignment by a fiduciary:
(a) May assume without inquiry that the assignment, even though to the fiduciary himself or to his nominee, is within his authority and capacity and is not in breach of his fiduciary duties;
(b) May assume without inquiry that the fiduciary has complied with any controlling instrument and with the law of the jurisdiction governing the fiduciary relationship, including any law requiring the fiduciary to obtain court approval of the transfer; and
(c) Is not charged with notice of and is not bound to obtain or examine any court record or any recorded or unrecorded document relating to the fiduciary relationship or the assignment, even though the record or document is in its possession.
§31-4D-4. Obtaining evidence of appointment or incumbency of fiduciary.
A corporation or transfer agent making a transfer pursuant to an assignment by a fiduciary who is not the registered owner shall obtain the following evidence of appointment or incumbency:
(a) In the case of a fiduciary appointed or qualified by a court, a certificate issued by or under the direction or supervision of that court or an officer thereof and dated within sixty days before the transfer; or
(b) In any other case, a copy of a document showing the appointment or a certificate issued by or on behalf of a person reasonably believed by the corporation or transfer agent to be responsible or, in the absence of such a document or certificate, other evidence reasonably deemed by the corporation or transfer agent to be appropriate. Corporations and transfer agents may adopt standards with respect to evidence of appointment or incumbency under this subsection (b) provided such standards are not manifestly unreasonable. Neither the corporation nor transfer agent is charged with notice of the contents of any document obtained pursuant to this subsection (b) except to the extent that the contents relate directly to the appointment or incumbency.
§31-4D-5. Adverse claims.
(a) A person asserting a claim of beneficial interest adverse to the transfer of a security pursuant to an assignment by a fiduciary may give the corporation or transfer agent written notice of the claim. The corporation or transfer agent is not put on notice unless the written notice identifies the claimant, the registered owner and the issue of which the security is a part, provides an address for communications directed to the claimant and is received before the transfer. Nothing in this article relieves the corporation or transfer agent of any liability for making or refusing to make the transfer after it is so put on notice, unless it proceeds in the manner authorized in subsection (b).
(b) As soon as practicable after the presentation of a security for transfer pursuant to an assignment by a fiduciary, a corporation or transfer agent which has received notice of a claim of beneficial interest adverse to the transfer may send notice of the presentation by registered or certified mail to the claimant at the address given by him If the corporation or transfer agent so mails such a notice it shall withhold the transfer for thirty days after the mailing and shall then make the transfer unless restrained by a court order.
§31-4D-6. Nonliability of corporation or transfer agent.
A corporation or transfer agent incurs no liability to any person by making a transfer or otherwise acting in a manner authorized by this article.
§31-4D-7. Nonliability of third persons.
(a) No person who participates in the acquisition, disposition, assignment or transfer of a security by or to a fiduciary including a person who guarantees the signature of the fiduciary is liable for participation in any breach of fiduciary duty by reason of failure to inquire whether the transaction involves such a breach unless it is shown that he acted with actual knowledge that the proceeds of the transaction were being or were to be used wrongfully for the individual benefit of the fiduciary or that the transaction was otherwise in breach of duty.
(b) If a corporation or transfer agent makes a transfer pursuant to an assignment by a fiduciary, a person who guaranteed the signature of the fiduciary is not liable on the guarantee to any person to whom the corporation or transfer agent by reason of this article incurs no liability.
(c) This section does not impose any liability upon the corporation or its transfer agent.
§31-4D-8. Law governing registering or transferring securities; application of article.
(a) The rights and duties of a corporation and its transfer agents in registering a security in the name of a fiduciary or in making a transfer of a security pursuant to an assignment by a fiduciary are governed by the law of the jurisdiction under whose laws the corporation is organized.
(b) This article applies to the rights and duties of a person other than the corporation and its transfer agents with regard to acts and omissions in this state in connection with the acquisition, disposition, assignment or transfer of a security by or to a fiduciary and of a person who guarantees in this state the signature of a fiduciary in connection with such a transaction.
§31-4D-9. Tax obligations.
This article shall not affect any obligation of a corporation or transfer agent with respect to estate, inheritance, succession or other taxes imposed by the laws of this state.
§31-4D-10. Uniformity of interpretation.
This article shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.
§31-4D-11. Short title.
This article may be cited as the Uniform Act for Simplification of Fiduciary Security Transfers.
§31-4E-1.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4E-2.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4E-3.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4E-4.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-4E-5.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-5-1.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-5-10.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-5-11.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-5-12.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-5-13.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-5-14.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-5-15.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-5-2.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-5-3.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-5-4.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-5-5.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-5-6.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-5-7.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-5-8.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-5-9.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-6-1.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-10.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-11.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-12.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-13.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-14.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-15.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-16.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-17.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-18.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-19.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-2.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-20.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-21.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-22.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-23.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-24.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-25.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-26.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-27.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-28.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-29.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-3.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-30.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-31.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-32.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-33.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-34.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-35.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-36.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-37.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-38.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-39.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-4.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-40.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-41.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-42.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-43.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-44.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-5.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-6.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-7.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-8.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6-9.
Repealed.
Acts, 1991 Reg. Sess., Ch. 30.
§31-6A-1.
Repealed.
Acts, 1991 Reg. Sess., Ch. 31.
§31-6A-3.
Repealed.
Acts, 1991 Reg. Sess., Ch. 31.
§31-6A-3.
Repealed.
Acts, 1991 Reg. Sess., Ch. 31.
§31-6A-4.
Repealed.
Acts, 1991 Reg. Sess., Ch. 31.
§31-6A-5.
Repealed.
Acts, 1991 Reg. Sess., Ch. 31.
§31-6A-6.
Repealed.
Acts, 1991 Reg. Sess., Ch. 31.
§31-7-1.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-10.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-11.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-12.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-13.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-14.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-15.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-16.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-17.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-18.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-19.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-2.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-20.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-21.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-22.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-23.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-24.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-25.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-26.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-27.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-28.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-29.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-3.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-4.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-5.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-6.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-7.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-8.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-7-9.
Repealed.
Acts, 1996 Reg. Sess., Ch. 73.
§31-8-1.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-10.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-11.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-12.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-13.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-14.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-15.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-16.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-17.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-18.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-19.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-2.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-20.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-21.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-22.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-23.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-24.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-25.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-26.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-27.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-28.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-29.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-3.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-30.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-31.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-32.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-33.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-34.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-35.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-36.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-37.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-38.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-39.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-4.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-40.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-41.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-42.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-43.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-44.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-45.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-46.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-5.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-6.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-7.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-8.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-8-9.
Repealed.
Acts, 1969 Reg. Sess., Ch. 7.
§31-9-1.
Held unconstitutional.
§31-9-10.
Held unconstitutional.
§31-9-11.
Held unconstitutional.
§31-9-12.
Held unconstitutional.
§31-9-13.
Held unconstitutional.
§31-9-14.
Held unconstitutional.
§31-9-15.
Held unconstitutional.
§31-9-16.
Held unconstitutional.
§31-9-17.
Held unconstitutional.
§31-9-18.
Held unconstitutional.
§31-9-2.
Held unconstitutional.
§31-9-3.
Held unconstitutional.
§31-9-4.
Held unconstitutional.
§31-9-5.
Held unconstitutional.
§31-9-6.
Held unconstitutional.
§31-9-7.
Held unconstitutional.
§31-9-8.
Held unconstitutional.
§31-9-9.
Held unconstitutional.
§31-10-1.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-10.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-11.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-12.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-13.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-14.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-15.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-16.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-17.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-18.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-19.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-2.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-20.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-21.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-22.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-23.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-24.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-25.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-26.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-27.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-28.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-29.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-3.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-30.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-31.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-32.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-33.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-34.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-35.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-4.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-5.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-6.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-7.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-8.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-10-9.
Repealed.
Acts, 1996 Reg. Sess., Ch. 98.
§31-11-1.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-10.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-11.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-12.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-13.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-14.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-15.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-16.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-17.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-18.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-19.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-2.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-20.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-21.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-3.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-4.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-5.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-6.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-7.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-8.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-11-9.
Repealed.
Acts, 1991 Reg. Sess., Ch. 149.
§31-12-1. Certain building and loan associations and other institutions may subscribe to shares of federal savings and loan association.
Any building and loan association or company or savings and loan association or company or savings bank or any other association or corporation that may now or hereafter be eligible to become a member of any federal home loan bank according to the terms of the Federal Home Loan Bank Act, as the same may be amended from time to time, is authorized and empowered to subscribe to the shares of a federal savings and loan association, and may pay for such shares in cash or by the transfer or assignment of such assets of the subscriber as are approved by the federal home loan bank board in writing, evidenced by the certificate of the federal home loan bank board on file with the subscriber.
§31-12-2. Powers of federal savings and loan associations in state.
Whenever, by the terms of any general or special laws of this state, any restriction is imposed upon the conduct in this state of any building and loan association or company or savings and loan association or company or savings bank or any other association or corporation, the same shall not apply to the affairs or conduct of the business in this state of any savings and loan association formed under and pursuant to the act of Congress known as the Home Owners' Loan Act of one thousand nine hundred thirty-three, as the same may be amended from time to time, but such federal savings and loan association or associations may conduct business in this state according to the terms of the said Home Owners' Loan Act and the Federal Home Loan Bank Act and the rules and regulations from time to time fixed and prescribed by the federal home loan bank board and the federal home loan bank, and may do all things authorized or required by the said acts of Congress, as amended from time to time, whereby the said rules and regulations and the said federal savings and loan association or associations shall not be deemed foreign corporation or corporations as defined by any general or special law of this state.
§31-12-3. Powers of state building and loan associations, etc., in relation to federal home loan bank.
Any building and loan association or company or savings and loan association or company or savings bank or any other association or corporation that may now or hereafter be eligible to become a member of any federal home loan bank according to the terms of the Federal Home Loan Bank Act, as the same may be amended from time to time, is authorized and empowered to subscribe for and own and hold stock in such federal home loan bank and become a member thereof, or to borrow money from any federal home loan bank pursuant to the said act of Congress, as the same may be amended, and also to invest in the bonds of any federal home loan bank or the home owners' loan corporation, and also to give and pledge securities and conform to the provisions of the said Federal Home Loan Bank Act and to the rules and regulations from time to time fixed and prescribed either by the federal home loan bank board or the federal home loan bank, and to perform any acts and execute any instruments authorized or required by the said act of Congress, as amended from time to time, or by said rules and regulations.
§31-12-4. Joint offices, etc., with federal savings and loan association.
Any building and loan association or company or savings and loan association or company or savings bank or any other association or corporation that may now or hereafter be eligible to become a member of any federal home loan bank according to the terms of the Federal Home Loan Bank Act, as the same may be amended from time to time, is authorized and empowered to occupy the same office or offices and use the same facilities, officers, directors, and employees as and in conjunction with a federal savings and loan association upon such terms and conditions as may be agreed upon with the said federal savings and loan association.
§31-12-5. Conversion of state building and loan associations, etc., into federal savings and loan associations; effect.
Any building and loan association or company or savings and loan association or company or savings bank or any other association or corporation organized under the laws of this state may convert into a federal savings and loan association according to the terms of the Federal Home Loan Bank Act and the rules and regulations of the federal home loan bank board, as the same may be amended from time to time, by a resolution to such effect adopted at a meeting of the shareholders of any such association or corporation by the affirmative vote of a majority of the shareholders present in person or by proxy. Whenever any such association or corporation shall so convert itself into a federal savings and loan association, it shall thereupon come under the sole supervision of the federal home loan bank or the federal home loan bank board. At the time when such conversion becomes effective all the property of such association or corporation, including all its right, title, and interest in and to all property of whatsoever kind, whether real, personal, or mixed, and things in action, and every right, privilege, interest, and asset of any conceivable value of benefit then existing, belonging, or pertaining to it, or which would enure to it, shall immediately by act of law and without any conveyance or transfer or assignment, and without any further act or deed, be vested in and become the property of the federal savings and loan association, which shall have, hold, and enjoy the same in its own right as fully and to the same extent as the same was possessed, held, and enjoyed by such association or corporation so converting, and the federal savings and loan association as of the time of the taking effect of such conversion shall succeed to all the rights, obligations, and relations of such association or corporation.
§31-13-1.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-13-10.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-13-11.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-13-12.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-13-13.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-13-2.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-13-3.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-13-4.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-13-5.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-13-6.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-13-7.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-13-8.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-13-9.
Repealed.
Acts, 1957 Reg. Sess., Ch. 97.
§31-14-1. Short title; definitions.
This article shall be known and may be cited as the "West Virginia Business Development Corporation Act."
As used in this article, the following words and phrases, unless definitely defined or described, shall have the meanings and references as follows:
(1) "Business Development Corporation": A West Virginia business development corporation created and organized under the provisions of this article.
(2) "Financial Institution": Any banking corporation or trust company, savings bank, building and loan association, industrial loan company, insurance company, or similar corporation, partnership, foundation, or other institution, either domestic or foreign, which is engaged in lending or investing funds.
(3) "Member": Any financial institution authorized to do business within this state which shall undertake to lend money to a corporation created under this article, upon its call, and in accordance with the provisions of this article.
(4) "Board of Directors": The board of directors created under this article.
(5) "Loan Limit": For any member, the maximum amount permitted to be outstanding at one time on loans made by such member to the corporation, as determined under the provisions of this article.
§31-14-2. Incorporators; purposes; agreement of incorporation.
Any number of persons, not fewer than ten, a majority of whom shall be bona fide residents of this state, may associate to create a business development corporation under the provisions of this article for the purpose of promoting, developing and advancing business and industrial development within the state and, to that end, may exercise the powers, rights and privileges hereinafter provided. The persons desiring to form the corporation shall sign, acknowledge and file with the Secretary of State an agreement in the general form prescribed by the Secretary of State, in which shall be set forth:
(1) The name of the corporation, which shall contain the words "Business Development Corporation," together with a designation of the area or locality within the state in which the corporation is intended to operate.
(2) The post-office address of its principal office or place of business.
(3) The object or objects for which the corporation is formed, which shall include the following:
To promote, develop and advance the business prosperity and economic welfare of the State of West Virginia and its citizens; to encourage and assist through loans, investments or other business transactions in the locating of new business and industry within the state and to rehabilitate and assist existing businesses and industries; to stimulate and promote the expansion of all kinds of business and industrial activity which will tend to advance business and industrial development and maintain the economic stability of the state, provide maximum opportunities for employment, encourage thrift, and improve the standard of living of the citizens of the state; to cooperate and act in conjunction with the Department of Commerce and with other organizations, federal, state or local, in the promotion and advancement of industrial, commercial, agricultural and recreational developments within the state; and to furnish money and credit, land and industrial sites, technical assistance and such other aid as may be deemed requisite to approved and deserving applicants for the promotion, development and conduct of all kinds of business activity within the state.
(4) The names and post-office addresses of the incorporators, and the number of shares of stock subscribed by each.
(5) Whether or not the corporation is to have perpetual existence; if not, the time when its existence is to commence and the time when its existence is to cease.
(6) Any provision in which the incorporators may choose to insert for the management of the business and for the conduct of the affairs of the corporation, and any provisions creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders and members thereof: Provided, however, That such provisions are not contrary to the provisions of this article.
(7) The agreement may also contain the following provision in these words verbatim:
"Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of West Virginia may, on the application in a summary way of this corporation or of any creditor or stockholder thereof, or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the laws of the State of West Virginia, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, such compromise or arrangement and such reorganization shall, if sanctioned by the court to which such application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this corporation, as the case may be, and also on this corporation."
§31-14-3. Authorized capital stock; description of shares; consideration for sale of shares.
The agreement of incorporation shall set forth the total amount of authorized capital stock, the number of shares in which it is divided, the par value of each of such shares and the amount of capital stock with which it will commence business and, if there be more than one class of stock, the total number of shares of all classes of stock which the corporation shall have authority to issue, with a description of the different classes and all other information with respect thereto required by section six, article one of this chapter. No corporation organized hereunder shall sell its shares for any consideration other than money.
§31-14-4. Issuance of charter; exemption from license tax.
Upon the filing in the office of the Secretary of State of the agreement provided for in section two of this article, the Secretary of State shall issue his certificate as provided in section seven, article one of this chapter, except that the Secretary of State shall not require the payment of the license tax provided for in sections seventy-eight and seventy-nine, article twelve, chapter eleven of the Code of West Virginia, 1931, as amended. A corporation organized under the provisions of this article shall be exempt from such license tax.
§31-14-5. Corporate powers.
In furtherance of the purposes set out in section two of this article, and to aid in providing an effective program to alleviate conditions of substantial and persistent unemployment, underemployment, and lack of stable economic development, by taking effective steps in planning and financing economic redevelopment, utilizing such facilities and resources as are provided by the provisions of the federal "Area Redevelopment Act of 1961," as amended, the federal "Public Works and Economic Development Act of 1965," as amended, the federal "Appalachian Regional Development Act of 1965," as amended, the federal "Housing Act of 1968," as amended, the "West Virginia Housing Fund Development Act of 1968," as amended, and the "West Virginia Industrial Development Authority Act of 1961," as amended, and in addition to the powers conferred on business corporations by the provisions of this chapter, such corporation shall, subject to the restrictions and limitations herein contained, have the following powers:
(a) To enter into contracts and incur liabilities for any purposes of the corporation; except that the corporation shall not incur any secondary liability by way of guaranty or endorsement of the obligations of any person, firm, corporation, joint-stock company, association or trust, or in any other manner.
(b) To borrow money for any of the purposes of the corporation, including, but without implied limitation, the right to obtain loans under the provisions of "Title V of the Small Business Investment Act of 1958," as amended, or from any other similar governmental agency; to issue therefor its bonds, debentures, notes or other evidences of indebtedness, whether secured or unsecured, and to secure the same by mortgage, pledge, deed of trust or other lien on its property, franchises, rights and privileges of every kind and nature or any part thereof or interest therein, without securing stockholder or member approval.
(c) To make loans to any person, firm, corporation, joint- stock company, association or trust, and to establish and regulate the terms and conditions with respect to any such loans and the charges for interest and services connected therewith; however, no loans shall be made hereunder unless the loan applied for is not otherwise available through ordinary banking channels, private lenders, or other governmental agencies, on reasonable terms.
(d) To purchase, receive, hold, lease, or otherwise acquire and to sell, convey, transfer, lease, or otherwise dispose of real and personal property, together with such rights and privileges as may be incidental and appurtenant thereto and the use thereof, including, but not restricted to, any real or personal property acquired by the corporation from time to time in the satisfaction of debts or enforcement of obligations.
(e) To acquire, by gift or purchase, the good will, business, rights, real and personal property, both tangible and intangible, and other assets, or any part thereof, or interest therein, from any persons, firms, partnerships, corporations, joint-stock companies, associations or trusts, and to assume, undertake or pay the obligations, debts and liabilities of any such person, firm, partnership, corporation, joint-stock company, association or trust; to acquire improved or unimproved real estate for the purpose of constructing industrial plants or other business establishments thereon or for the purpose of disposing of such real estate to others for the construction of industrial plants or other business establishments; and to acquire, construct or reconstruct, alter, repair, maintain, operate, sell, convey, transfer, lease or otherwise dispose of industrial plants or business establishments.
(f) To acquire, subscribe for, own, hold, sell, assign, transfer, mortgage, pledge or otherwise dispose of the stock, shares, bonds, debentures, notes or other securities and evidences of interest in, or indebtedness of, any person, firm, corporation, joint-stock company, association or trust, and while the owner or holder thereof to exercise all the rights, powers and privileges of ownership, including the right to vote any such shares of stock.
(g) To mortgage, pledge, or otherwise encumber any property, right or thing of value, acquired pursuant to the powers contained in subdivisions (d), (e) or (f), as security for the payment of any part of the purchase price thereof.
(h) To cooperate with and avail itself of the facilities of the Department of Commerce and the office of commissioner of commerce of this state, the West Virginia industrial development authority, the federal area redevelopment administrator, and any similar federal and state governmental agencies and officers; and to cooperate with and assist, and otherwise encourage organizations in the various communities of the state in the promotion, assistance, and development of the business prosperity and economic welfare of such communities or of this state or any part thereof.
(i) To do all acts and things necessary or convenient to carry out the powers expressly granted in this article.
§31-14-6. Board of directors; officers.
The business and affairs of the corporation shall be managed and conducted by a board of directors, a president and treasurer, and such other officers and such agents as the corporation by its bylaws shall authorize. The board of directors shall be determined by the incorporators and, thereafter, by the stockholders and the members of the corporation, but the number of directors shall be a multiple of three.
The board of directors may exercise all the powers of the corporation except such as are conferred by law or by the bylaws of the corporation upon the stockholders or members and shall choose and appoint all the agents and officers of the corporation and fill all vacancies except vacancies in the office of director which shall be filled as hereinafter provided.
The board of directors shall be elected in the first instance by the incorporators and thereafter at each annual meeting of the corporation, or, if no annual meeting shall be held in any year at the time fixed by the bylaws, at a special meeting held in lieu thereof, the members of the corporation shall elect two thirds of the board of directors and the stockholders shall elect the remaining directors. The directors shall hold office until the next annual meeting of the corporation or special meeting held in lieu of the annual meeting after their election, and until their successors are elected and qualified unless sooner removed in accordance with the provisions of the bylaws.
Any vacancy in the office of a director elected by the members shall be filled by the directors elected by the members, and any vacancy in the office of a director elected by the stockholders shall be filled by the directors elected by the stockholders.
Directors and officers shall not be responsible for losses unless the same shall have been occasioned by the wilful misconduct of such directors and officers.
§31-14-7. Financial institutions as members of corporation; loans to corporation by members.
Any financial institution as defined in section one of this article is authorized to become a member of a corporation organized under the provisions of this article by making application to the board of directors on such form and in such manner as the board of directors may require and membership shall become effective upon acceptance of such application by said board. Membership in the corporation shall be for the duration of the corporation: Provided, That upon written notice given to the corporation one year in advance, a member may withdraw from membership in the corporation at the expiration date of such notice and shall not thereafter be obligated to make any loans to the corporation.
Each member of the corporation shall make loans to the corporation as and when called upon by it to do so on such terms and other conditions as shall be mutually approved from time to time by the board of directors of the corporation and such member, subject to the following conditions:
(1) All loan limits shall be established at the thousand-dollar amount nearest to the amount computed in accordance with the provisions of this section.
(2) No loans to the corporation shall be made if immediately thereafter, the total amount of the obligations of the corporation would exceed ten times the amount then paid in on the outstanding capital stock of the corporation. This limitation shall not apply with respect to that portion of the corporation's obligations incurred for the purpose of providing funds for making loans or for the acquisition of assets or investments to the extent that such loans, assets or investments are federally guaranteed, which for the purposes of this section seven means secured or covered by guaranties or by commitments or agreements to take over, or purchase, made by the United States of America, or by any department, bureau, agency, board, commission or establishment of the United States including any corporation, wholly owned, directly or indirectly, by the United States.
(3) The total amount outstanding on loans to the corporation made by any member at any one time, when added to the amount of the investment in the capital stock of the corporation then held by such member, shall not exceed:
(a) Twenty percent of the total amount then outstanding on loans to the corporation by all members, including in said total amount outstanding, amounts validly called for loans but not yet loaned.
(b) The following limit, to be adjusted annually on the basis of the audited balance sheet of such member at the close of its fiscal year, or, in the case of an insurance company, its annual statement to the commissioner of insurance: Two percent of the capital, surplus and undivided profits of commercial banks and trust companies; one percent of the total outstanding loans made by a building and loan association or industrial loan company; one percent of the capital and unassigned surplus of stock insurance companies, except fire insurance companies; one percent of the unassigned surplus of mutual insurance companies, except fire insurance companies; one tenth of one percent of the assets of fire insurance companies; and such limits as may be approved by the board of directors of the corporation for other financial institutions.
In computing the total amount outstanding on loans to the corporation made by a member at any time, there shall be excluded such portion of such loans as were obtained by the corporation for the purpose of providing funds for the making of loans or for the acquisition of assets or investments to the extent that such loans, assets or investments are federally guaranteed.
Subject to paragraph three (a) of this section, each call made by the corporation shall be prorated among the members of the corporation in substantially the same proportion that the adjusted loan limit of each member bears to the aggregate of the adjusted loan limit of all members. The adjusted loan limit of a member shall be the amount of such member's loan limit, reduced by the balance of outstanding loans by such member to the corporation and the investment in capital stock of the corporation held by such member at the time of such call.
All loans to the corporation by members shall be evidenced by bonds, debentures, notes or other evidences of indebtedness of the corporation, which shall be freely transferable at all times, and which shall bear interest at a rate of not less than one quarter of one percent in excess of the rate of interest determined by the board of directors to be the prime rate prevailing at the date of issuance thereof on unsecured commercial loans.
§31-14-8. Powers of stockholders and members; voting.
The stockholders and the members of the corporation shall have the power to determine the number of and to elect directors as provided heretofore, to make, amend and repeal bylaws, to amend the corporate charter in the manner hereinafter provided, and to exercise such other of the powers of the corporation as may be conferred on the stockholders and the members by the bylaws. As to all matters requiring action by the stockholders and the members of the corporation, said stockholders and said members shall vote separately thereon by classes, and, except as otherwise herein provided, such matters shall require the affirmative vote of a majority of the votes to which the stockholders present or represented at the meeting shall be entitled and the affirmative vote of a majority of the votes to which the members present or represented at the meeting shall be entitled. Each stockholder shall have one vote, in person or by proxy, for each share of capital stock held by him and each member shall have one vote, in person or by proxy, except that any member having a loan limit of more than $1,000 shall have one additional vote, in person or by proxy, for each additional $1,000 which such member is authorized to have outstanding on loans to the corporation at any one time.
§31-14-8a. Statewide corporation; economic regions created; loan committees.
1. Without limitation upon the power created by this article for the formation of business development corporations restricted in activity or in membership to areas or regions less than statewide, there may be created under the provision hereof a business development corporation coextensive, in the area to be served and from which membership may be drawn, with the State of West Virginia.
2. In the event of organization of such statewide business development corporation, and for the purpose of this section the state is hereby divided into ten economic regions as follows:
(1) Wheeling region: The counties of Hancock, Brooke, Ohio, Marshall, Wetzel and Tyler.
(2) Parkersburg region: The counties of Pleasants, Wood, Ritchie, Wirt, Calhoun, Roane and Jackson.
(3) Clarksburg region: The counties of Harrison, Doddridge, Taylor, Marion, Monongalia and Preston.
(4) Keyser region: The counties of Grant, Hardy, Mineral, Hampshire, Berkeley, Morgan and Jefferson.
(5) Elkins region: The counties of Barbour, Randolph, Pocahontas, Tucker and Pendleton.
(6) Weston region: The counties of Lewis, Gilmer, Braxton, Webster and Upshur.
(7) Lewisburg region: The counties of Greenbrier, Nicholas, Fayette, Summers and Monroe.
(8) Charleston region: The counties of Kanawha, Clay, Putnam, Mason and Boone.
(9) Huntington region: The counties of Cabell, Wayne, Lincoln, Mingo and Logan.
(10) Bluefield region: The counties of Raleigh, Wyoming, McDowell and Mercer.
3. Loan Committees: (a) There shall be a loan committee of such corporation for each of the ten economic regions as defined in this section. The members of the board of directors elected from such regions shall serve as members and chairman of each such loan committee for their respective regions. Each such loan committee shall have four additional members who shall be elected by the members of such corporation from such region and each of whom shall be of full age and a citizen of the United States and shall be a resident of such region or maintain a regular place of business therein.
In such elections, members of the corporation from each such region shall have one vote each, and each member having a loan limit, as defined by section seven of this article, of more than $50,000, shall have one additional vote. The elected members of each such loan committee shall be elected at the annual meetings of such corporation and shall serve for terms of one year.
(b) If a vacancy occurs in the elected membership of any such loan committee, the remaining members of such committee shall elect a person from its economic region to fill such vacancy for the unexpired term. Upon the expiration of their terms the elected members of each such loan committee shall continue as such until their successors have been elected and have qualified.
(c) The board of directors of such corporation may establish an office for any such loan committee, within such committee's economic region.
(d) Every application to such corporation for a loan or financial assistance shall be made through the loan committee for the economic region wherein the applicant resides or maintains a regular place of business, and such application shall thereupon be reviewed by such loan committee and promptly transmitted by it to the board of directors for consideration, along with the recommendation of such loan committee with respect thereto: Provided, however, That where there is no member of such corporation from the economic region wherein the applicant resides or maintains a regular place of business, such applicant may make his application through the loan committee for any other economic region.
§31-14-9. Purchase of securities and stock by other corporations, fiduciaries and financial institutions.
Notwithstanding any other provision of law or any provision in their respective charters or trust indentures, any domestic corporation, including without implied limitation, any public utility company or insurance or casualty company; all foreign corporations licensed to do business in this state; all trusts or other fiduciaries and any financial institution as defined in section one of this article are hereby authorized and empowered to acquire, purchase, hold, sell, assign, transfer, mortgage, pledge or otherwise dispose of any bonds, notes, debentures, securities or other evidences of indebtedness created by, or the shares of the capital stock of any corporation organized under the provisions of this article and, while owners of such stock, to exercise all of the rights, powers and privileges of owners, including the right to vote said stock, all without the approval of any regulatory authority of the state; except, however, that the amount of the capital stock of such corporation which may be acquired by any member pursuant to the authority granted herein shall not exceed ten percent of the loan limit of such member. A financial institution which does not become a member of the corporation shall not be permitted to acquire any shares of the capital stock of the corporation. The amount of capital stock of such corporation which any member is authorized to acquire pursuant to the authority granted herein is in addition to the amount of capital stock in corporations which such member may otherwise be authorized to acquire.
§31-14-10. Creation of surplus from annual net earnings.
Each year the corporation shall set apart as earned surplus not less than ten percent of its net earnings for the preceding fiscal year until such surplus shall be equal in value to one half of the amount paid in on the capital stock then outstanding. Whenever the amount of surplus established herein shall become impaired, it shall be built up again to the required amount in the manner provided for its original accumulation. Net earnings and surplus shall be determined by the board of directors, after providing for such reserves as said directors deem desirable, and the determination of the directors, made in good faith, shall be conclusive on all persons.
§31-14-11. Corporation not to receive deposits; designation of depository bank.
No corporation organized under the provisions hereof shall at any time be authorized to receive money on deposit. The corporation shall not deposit any of its funds in any banking institution unless such institution has been designated as a depository by a vote of a majority of the directors present at an authorized meeting of the board of directors, exclusive of any director who is an officer or director of the depository so designated.
§31-14-12. Examination by and reports to banking commissioner.
Every corporation organized under the provisions of this article shall be subject to the examination and supervision of the commissioner of banking of this state, and shall make a report annually of its condition in such form and containing such information as the commissioner may require, who shall transmit a copy of such annual report to the Insurance Commissioner of the state.
§31-14-13. Exemption from payment of business and occupation taxes; treatment as banking institution for purposes of property taxation.
Every corporation organized under the provisions of this article shall be exempt from payment or collection of the business and occupation tax as provided for by chapter eleven, article thirteen of the Code of West Virginia, 1931, as amended, upon the business done by it. Upon certification by the corporation to the State Tax Commissioner that it is a corporation organized under and pursuant to the provisions of this article, such corporation shall not be required to file annual or other returns under the requirements of said chapter and article. Every business development corporation organized under the provisions of this article shall be taxed as a banking institution for the purposes of article three, chapter eleven of this code.
§31-14-14. Amendment of charter.
The charter of any corporation organized under the provisions of this article may be amended by the vote of the stockholders and the members of the corporation, voting separately by classes, and such amendments shall require approval by the affirmative vote of two thirds of the votes to which the stockholders shall be entitled and two thirds of the votes to which the members shall be entitled, except that no amendment which affects or limits the right of the commissioner of banking to examine the corporation or the obligation of the corporation to make annual reports to the commissioner as provided in section twelve shall be made without amendment of this article; and except, further, that no amendment to the charter of the corporation which increases the obligation of a member to make loans to the corporation, or makes any change in the principal amount, maturity date or in the security or credit position of any outstanding loan of a member to the corporation, or affects a member's right to withdraw from membership, or its voting rights as provided in sections seven and eight, shall be made without the consent of each member affected by such amendment.
Within thirty days after any meeting at which amendment of the charter has been adopted, certification thereof shall be made by the corporation to the Secretary of State in the manner provided for by section twelve, article one of this chapter, whereupon the Secretary of State shall issue his certificate as therein provided for.
§31-14-15. Applicability of general corporation law.
Every corporation organized under the provisions of this article shall be governed by the provisions of chapter thirty-one of the Code of West Virginia, 1931, as amended, except insofar as the provisions of that chapter are in conflict with the provisions of this article, in which case the provisions of this article shall prevail.
§31-14-16. Severability of provisions.
The provisions of this article are severable, and if any of its provisions shall be held unconstitutional by any court of competent jurisdiction, the decision of such court with respect thereto shall not affect or impair any of the remaining provisions hereof.
§31-15-1. Short title.
This article shall be known and may be cited as "The West Virginia Economic Development Authority Act."
§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.
§31-15-3. Purposes of article.
The purposes of this article shall be to provide for the formation of a public economic development authority to promote, assist, encourage and, in conjunction with such banking corporations or institutions, trust companies, savings banks, building and loan associations, insurance companies or related corporations, partnerships, foundations, nonprofit organizations or other institutions, to develop and advance the business prosperity and economic welfare of the State of West Virginia; to encourage and assist in the location of new business and industry; to stimulate and assist in the expansion of all kinds of business activity which will tend to promote the business development and maintain the economic stability of this state, provide maximum opportunities for employment, encourage thrift and improve the standard of living of the citizens of this state; to cooperate and act in conjunction with other organizations, public or private, the objects of which are the promotion and advancement of industrial, commercial, tourist or manufacturing developments in this state; to borrow moneys and to issue its bonds, notes, commercial paper, other debt instruments and security interests as well as creating an insurance fund for credit enhancement purposes; to furnish money and credit or credit enhancement to approved industrial development agencies or enterprises in this state or for the promotion of new projects or to retain existing projects or to financially assist projects by insuring bonds, notes, loans and other instruments, including, but not limited to, the insuring of financing of working capital or the refinancing of existing debt of an enterprise, thereby establishing a source of credit and credit enhancement not otherwise available; to review state procurement policies and practices to assure that they meet federal and state requirements and that they effectively encourage meaningful participation of African-Americans and other minority persons in the process of competing for and awarding of state contracts for goods and services; to encourage the state to continue to support and expand small business incubator programs, including the program at institutions of higher education in the state; to encourage new and minority small business development; to undertake initiatives to encourage minority business ownership similar to those efforts used to encourage greater rates of business ownership among women; to assist community and economic development corporations to provide effective technical and business advisory services to minority-owned and -operated enterprises; to encourage industry, banks and other private businesses to hire African-Americans and other minority persons; to encourage governmental agencies and bodies and businesses to be more aggressive in establishing diversity-conscious practices as employers and for their operations; to enlist traditional and nontraditional lending institutions to be more creative and favorable to lending in minority communities and to minority persons, especially for business enterprises; to encourage small business start-up and expansion and provide funding to assist minority vendors to meet bid bonding requirements; and to encourage workforce investment boards to be accountable for educating poor and minority persons for jobs better than low-paying service jobs. These purposes are hereby declared to be public purposes for which public money may be spent and are purposes which will promote the health, safety, morals, right to gainful employment, business opportunities and general welfare of the inhabitants of the state.
§31-15-3a. West Virginia industry and jobs development corporation abolished; establishment of economic development authority as successor to corporation.
The authority shall be the corporate successor to the West Virginia industry and jobs development corporation and is hereby vested with all right, title and interest of such corporation in and to all property, rights and choses in action heretofore owned by or vested in such corporation, including, but not limited to, its loan portfolio, and shall assume all debts, liabilities and other obligations, if any, of such corporation. As of the effective date of this legislation, such corporation shall cease to exist and all rights and interests heretofore vested in such corporation shall be vested in the authority.
The unexpended balance of funds authorized under section seventeen, article one, chapter five-c of this code available for use of the West Virginia industry and jobs development corporation as of the effective date of this legislation is hereby transferred to the authority.
§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.
§31-15-5. West Virginia economic development authority; composition; appointment; terms; delegation of authority by chairman; voting; compensation and expenses.
(a) The West Virginia Economic Development Authority is continued as a body corporate and politic, constituting a public corporation and government instrumentality.
(b) The authority shall be composed of a board of members consisting of a chairperson, who shall be the Governor, or his or her designated representative, the State Treasurer, or his or her designated representative, the Tax Commissioner, and seven members who shall be appointed by the Governor, by and with the advice and consent of the Senate, and who shall be broadly representative of the geographic regions of the state. One member of the House of Delegates to be appointed by the Speaker and one member of the Senate to be appointed by the President shall serve on the board in an advisory capacity as ex officio, nonvoting members. The board shall direct the exercise of all the powers given to the authority in this article. The Governor shall also be the chief executive officer of the authority, and shall designate the treasurer and the secretary of the board.
(c) As appointments expire, each subsequent appointment shall be for a full four-year term. Any member whose term has expired shall serve until his or her successor has been duly appointed and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired term. Any member is eligible for reappointment.
(d) The Governor may, by written notice filed with the secretary of the authority, from time to time, delegate to any subordinate the power to represent him or her at any meeting of the authority. In that case, the subordinate has the same power and privileges as the Governor and may vote on any question.
(e) Members of the authority are not entitled to compensation for services performed as members, but are entitled to reimbursement for all reasonable and necessary expenses actually incurred in the performance of their duties.
(f) A majority of the members constitutes a quorum for the purpose of conducting business. Except in the case of a loan or insurance application or unless the bylaws require a larger number, action may be taken by majority vote of the members present. Approval or rejection of a loan or insurance application shall be made by majority vote of the full membership of the board.
(g) The board shall manage the property and business of the authority and may prescribe, amend, adopt, and repeal bylaws and rules and regulations governing the manner in which the business of the authority is conducted.
(h) The board shall, without regard to the provisions of civil service laws applicable to officers and employees of the State of West Virginia, appoint any necessary managers, assistant managers, officers, employees, attorneys, and agents for the transaction of its business, fix their compensation, define their duties, and provide a system of organization to fix responsibility and promote efficiency. Any appointee of the board may be removed at the discretion of the board. The authority may reimburse any state spending unit for any special expense actually incurred in providing any service or the use of any facility to the authority.
(i) The board may delegate to the executive director the authority to make and execute all contracts and other agreements or instruments necessary to carry out the duties and powers of the authority, as provided in this article: Provided, That nothing in this article authorizes the authority to enter into contracts or agreements with financial institutions, as that term is defined in §31A-1-2 of this code, for banking goods or services without approval of the State Treasurer, in accordance with §12-1-1 et seq. of this code.
(j) In cases of any vacancy in the office of a voting member, the vacancy shall be filled by the Governor. Any member appointed to fill a vacancy in the board occurring prior to the expiration of the term for which his or her predecessor was appointed shall be appointed for the remainder of the term.
(k) The Governor may remove a member in the case of incompetence, neglect of duty, gross immorality, or malfeasance in office, and may declare the member’s office vacant and appoint a person for the vacancy as provided in other cases of vacancy.
(l) The secretary of the board shall keep a record of the proceedings of the board and perform any other duties determined appropriate by the board. The treasurer shall be custodian of all funds of the authority and shall be bonded in the amount designated by other members of the board.
§31-15-6. General powers of authority.
The authority, as a public corporation and governmental instrumentality exercising public powers of the state, shall have and may exercise all powers necessary or appropriate to carry out the purposes of this article, including the power:
(1) To cooperate with industrial development agencies in efforts to promote the expansion of industrial, commercial, manufacturing, and tourist activity in this state.
(2) To determine, upon the proper application of an industrial development agency or an enterprise, whether the declared public purposes of this article have been or will be accomplished by the establishment by such agency or enterprise of a project in this state.
(3) To conduct examinations and investigations and to hear testimony and take proof, under oath or affirmation, at public or private hearings, on any matter relevant to this article and necessary for information on the establishment of any project.
(4) To issue subpoenas requiring the attendance of witnesses and the production of books and papers relevant to any hearing before such authority or one or more members appointed by it to conduct any hearing.
(5) To apply to the circuit court having venue of such offense to have punished for contempt any witness who refuses to obey a subpoena, to be sworn or affirmed, or to testify or who commits any contempt after being summoned to appear.
(6) To authorize any member of the authority to conduct hearings, administer oaths, take affidavits, and issue subpoenas.
(7) To financially assist projects by insuring obligations in the manner provided in this article through the use of the insurance fund.
(8) To finance any projects by making loans to industrial development agencies or enterprises upon such terms as the authority shall deem appropriate: Provided, That nothing contained in this subsection or under any other provision in this article shall be construed as permitting the authority to make loans for working capital: Provided, however, That nothing contained in this article shall be construed as prohibiting the authority from insuring loans for working capital made to industrial development agencies or to enterprises by financial institutions: Provided further, That nothing contained in this subsection or any other provision of this article shall be construed as permitting the authority to refinance existing debt except when such refinancing will result in the expansion of the enterprise whose debt is to be refinanced or in the creation of new jobs: And provided further, That nothing contained in this subsection or any other provision of this article shall be construed as prohibiting the authority from making working capital loans from a revolving loan fund capitalized with federal grant funds including, but not limited to, federal grant funds received from the United States Economic Development Administration.
(9) To issue revenue bonds or notes to fulfill the purposes of this article, and to secure the payment of such bonds or notes, all as hereinafter provided.
(10) To issue and deliver revenue bonds or notes in exchange for a project.
(11) To borrow money for its purposes and issue bonds or notes for the money and provide for the rights of the holders of the bonds or notes or other negotiable instruments, to secure the bonds or notes by a deed of trust on, or an assignment or pledge of, any or all of its property and property of the project, including any part of the security for loans, and the authority may issue and sell its bonds and notes, by public or private sale, in such principal amounts as it shall deem necessary to provide funds for any purposes under this article, including the making of loans for the purposes set forth in this article.
(12) To maintain such sinking funds and reserves as the board shall determine appropriate for the purposes of meeting future monetary obligations and needs of the authority.
(13) To sue and be sued, implead and be impleaded, and complain and defend in any court.
(14) To adopt, use, and alter a corporate seal.
(15) To make, amend, repeal, and adopt both bylaws and rules and regulations for the management and regulation of its affairs.
(16) To appoint officers, agents, and employees and to contract for and engage the services of consultants.
(17) To make contracts and to execute all instruments necessary to carry out the powers and duties of the authority, as provided in this article: Provided, That the provisions of §5A-3-3 of this code do not apply to contracts made pursuant to this subdivision: Provided, however, That nothing in this article authorizes the authority to enter into contracts or agreements with financial institutions, as that term is defined in §31A-1-2 of this code, for banking goods and services without approval of the State Treasurer, in accordance with §12-1-1 et seq. of this code.
(18) To accept grants and loans from and enter into contracts and other transactions with any federal agency.
(19) To take title by conveyance or foreclosure to any project where acquisition is necessary to protect any loan previously made by the authority and to sell, by public or private sale, transfer, lease, or convey such project to any enterprise.
(20) To participate in any reorganization proceeding pending pursuant to the United States Code (being the act of Congress establishing a uniform system of bankruptcy throughout the United States, as amended) or in any receivership proceeding in a state or federal court for the reorganization or liquidation of an enterprise. The authority may file its claim against any such enterprise in any of the foregoing proceedings, vote upon any questions pending therein which requires the approval of the creditors participating in any reorganization proceeding or receivership, exchange any evidence of such indebtedness for any property, security, or evidence of indebtedness offered as a part of the reorganization of such enterprise or of any other entity formed to acquire the assets thereof and may compromise or reduce the amount of any indebtedness owing to it as a part of any such reorganization.
(21) To acquire, construct, maintain, improve, repair, replace, and operate projects within this state, as well as streets, roads, alleys, sidewalks, crosswalks, and other means of ingress and egress to and from projects located within this state.
(22) To acquire, construct, maintain, improve, repair, and replace and operate pipelines, electric transmission lines, waterlines, sewer lines, electric power substations, waterworks systems, sewage treatment and disposal facilities, and any combinations thereof for the use and benefit of any enterprise located within this state.
(23) To acquire watersheds, water and riparian rights, rights-of-way, easements, licenses, and all other property, property rights, and appurtenances for the use and benefit of any enterprise located within this state.
(24) To acquire, by purchase, lease, donation, or eminent domain, any real or personal property, or any right or interest therein, as may be necessary or convenient to carry out the purposes of the authority. Title to all property, property rights, and interests acquired by the authority shall be taken in the name of the authority.
(25) To issue renewal notes, or security interests, to issue bonds to pay notes or security interests and, whenever it deems refunding expedient, to refund any bonds or notes by the issuance of new bonds or notes, whether the bonds or notes to be refunded have or have not matured and whether the authority originally issued the bonds or notes to be refunded.
(26) To apply the proceeds from the sale of renewal notes, security interests, or refunding bonds or notes to the purchase, redemption or payment of the notes, security interests, or bonds or notes to be refunded.
(27) To accept gifts or grants of property, funds, security interests, money, materials, labor, supplies, or services from the United States of America or from any governmental unit or any person, firm, or corporation, and to carry out the terms or provisions of, or make agreements with respect to, or pledge, any gifts or grants, and to do any and all things necessary, useful, desirable, or convenient in connection with the procuring, acceptance, or disposition of gifts or grants.
(28) To the extent permitted under its contracts with the holders of bonds, security interests, or notes of the authority, to consent to any modification of the rate of interest, time of payment of any installment of principal or interest, security or any other term of any bond, security interests, note or contract or agreement of any kind to which the authority is a party.
(29) To sell loans, security interests, or other obligations in the loan portfolio of the authority. Such security interests shall be evidenced by instruments issued by the authority. Proceeds from the sale of loans, security interests, or other obligations may be used in the same manner and for the same purposes as bond and note revenues.
(30) To procure insurance against any losses in connection with its property, operations, or assets in such amounts and from such insurers as the authority deems desirable.
(31) To sell, license, lease, mortgage, assign, pledge, or donate its property, both real and personal, or any right or interest therein to another or authorize the possession, occupancy, or use of such property or any right or interest therein by another, in such manner and upon such terms as it deems appropriate.
(32) To participate with state and federal agencies in efforts to promote the expansion of commercial and industrial development in this state.
(33) To finance, organize, conduct, sponsor, participate, and assist in the conduct of special institutes, conferences, demonstrations, and studies relating to the stimulation and formation of business, industry, and trade endeavors.
(34) To conduct, finance, and participate in technological, business, financial, and other studies related to business and economic development.
(35) To conduct, sponsor, finance, participate, and assist in the preparation of business plans, financing plans, and other proposals of new or established businesses suitable for support by the authority.
(36) To prepare, publish, and distribute, with or without charge, as the authority may determine, such technical studies, reports, bulletins, and other materials as it deems appropriate, subject only to the maintenance and respect for confidentiality of client proprietary information.
(37) To exercise such other and additional powers as may be necessary or appropriate for the exercise of the powers herein conferred.
(38) To exercise all the powers which a corporation may lawfully exercise under the laws of this state.
(39) To contract for the provision of legal services by private counsel and, notwithstanding the provisions of §5-3-1 et seq. of this code, such counsel may, but is not limited to, represent the authority in court, negotiate contracts and other agreements on behalf of the authority, render advice to the authority on any matter relating thereto, prepare contracts and other agreements, and provide such other legal services as may be requested by the authority.
(40) To develop, maintain, operate, and apply for the establishment of foreign trade zones pursuant to and in accordance with all applicable provisions of federal law.
(41) To exercise the powers and responsibilities previously vested in the State Building Commission by §5-6-11a of this code, including, but not limited to, the authority to refund bonds issued in accordance with said section.
(42) To manage the Jobs Investment Trust described in §12-7-1 et seq. of this code, and to exercise those powers and responsibilities previously vested in the Jobs Investment Trust Board, as outlined in §12-7-6 of this code.
§31-15-6a. Special power of authority to transfer funds; limitations; fund created; use of funds to provide customized job training program by Governor's office of economic and community development.
(a) The Legislature finds and declares that in order to attract the new business and industry to this state and retain the business and industry in this state which provide the citizens of this state with economic security; to advance the business prosperity and economic welfare of this state and to assure a pool of qualified employees it is necessary that a training program exist to provide both unemployed and under-employed workers of this state a means to acquire or improve their working skills so as to insure availability of qualified employees that is fundamental for business and industry to prosper.
(b) The authority is hereby empowered to transfer to the special revenue fund herein created, a sum of money not to exceed $2,500,000, to be used by the Governors office of community development to establish, administer and operate a customized job training program. The authority may only make transfers to said fund between the time period commencing with the effective date of this section and ending June 30, 1991. Such transfers may only be made from repayments of principal amounts from loans made by the authority where such repayments of principal are available for such use and are not otherwise restricted. Transfers into the special revenue fund created above may be made at such times and in such amounts as the authority, in its discretion, deems reasonable: Provided, That the total amount of all such transfers may not exceed $2,500,000 in the aggregate.
(c) There is hereby created in the State Treasury a special revenue fund entitled the "Governor's Office of Community and Industrial Development Customized Job Training Program Fund." This fund shall consist of moneys paid into such fund in accordance with this section. Moneys in said fund shall be used by the Governors office of community and industrial development to establish and administer a customized job training program to meet the needs of expanding business and industry or to create new jobs, and the Governor's office of community and industrial development may make such withdrawals from this fund as required to establish and administer said customized job training program.
§31-15-6b. Special power of authority to issue bonds or notes to repay and refinance capital investment of Investment Management Board in Regional Jail and Correctional Facility Authority; authorizing issuance of bonds to finance regional jail facilities, correctional facilities, juvenile facilities and state police facilities.
(a) The Legislature finds and declares that the Supreme Court of Appeals has determined and ordered that the Constitution of this state imposes a duty on behalf of the state to make significant improvements in the jail and correctional facility system, including the duty to make capital improvements to facilities and to pay for the cost of those improvements; that many of the existing facilities used by the West Virginia state police, including those facilities identified in section ten, article two, chapter fifteen of this code, are in need of significant capital improvement or replacement, and that in some cases the acquisition and construction of additional state police facilities is needed; that the acquisition and construction of the capital improvements identified in this subsection require that the cost of the facilities be financed over time; that section fifty-one, article six of the Constitution prohibits the Legislature amending the budget bill so as to create a deficit; that the enacting of new taxes, or the diversion of revenues from other essential departments and functions of government, in order to support capital improvements in regional jail facilities, correctional facilities, juvenile facilities and state police facilities is not in the interests of the people of the state represented in the Legislature, and is specifically rejected by the Legislature in its exercise of its legitimate Constitutional powers; that there have been previously funded certain regional jail facilities and correctional facilities through funds available for investment through the West Virginia Investment Management Board, the proceeds of which have and are being used by the Regional Jail and Correctional Facility Authority to finance the cost of capital improvements to regional jail facilities and correctional facilities, the repayment of such investment being made from transfers to the regional jail and correctional facility investment fund established under section twenty-one, article six, chapter twelve of this code, from funds on deposit in the insurance tax fund established under subsection (b), section fourteen, article three, chapter thirty-three of this code, such transfers undertaken in the manner set forth in subsection (c), section fourteen, article three, chapter thirty-three of this code; that the rate of return being paid under subsection (b), section twenty-one, article six, chapter twelve for the investment is subject to annual adjustment and theretofore subject to the volatility of the financial markets and it is anticipated that the rate of return paid on such investment will be in excess of the interest rate that would be payable with respect to bonds issued under this article to repay the investment, to make the capital improvements identified in this subsection, and to acquire or construct certain regional jail facilities, correctional facilities, juvenile facilities and state police facilities.
(b) To provide for (1) the repayment of all or a portion of the investment, (2) the financing of capital improvements to regional jail facilities, correctional facilities, juvenile facilities and state police facilities, (3) the financing of the acquisition of certain existing regional jail facilities, correctional facilities, juvenile facilities and state police facilities, (4) the financing of the acquisition and construction of new regional jail facilities, correctional facilities, juvenile facilities and state police facilities, and (5) the payment of the costs of issuance of the bonds, bonds of the authority may be issued in accordance with the provisions of this article. Any bonds issued pursuant to the provisions of this section shall mature at a time or times not exceeding twenty-five years from their respective dates. In no event may the outstanding principal amount of the bonds exceed a total amount that would require annual debt service payments in excess of $16 million.
(c) (1) The proceeds from the sale of the bonds shall be allocated and expended for the following purposes in the following order of priority:
(A) For the costs of issuance of the bonds;
(B) For payment of the return of the investment made pursuant to section twenty-one, article six, chapter twelve of this code;
(C) For the costs of the projects included in the letter submitted by the Regional Jail and Correctional Facility Authority to the Joint Committee on Government and Finance dated April 1, two thousand one, pursuant to the amendment and reenactment of section twenty-one, article six, chapter twelve of this code in chapter sixty-six, acts of the Legislature, regular session, two thousand one: Provided, That the letter shall not be construed to prioritize any project or projects which are included in the letter;
(D) For the costs of completion of any other capital improvement projects for regional jail facilities, correctional facilities or juvenile facilities that may be determined by the Regional Jail and Correctional Facility Authority, subject to the provisions of subdivision (2) of this subsection. Prior to the expenditure of any funds for these additional projects, the Regional Jail and Correctional Facility Authority shall certify to the Joint Committee on Government and Finance a separate list of the additional projects to be funded from the bond proceeds. This certified list may not thereafter be altered or amended other than by legislative enactment; and
(E) For the costs of capital improvements to or the acquisition or construction of state police facilities: Provided, That no proceeds of the bonds may be expended for a state police facility purpose unless and until the Legislature by concurrent resolution has approved the purpose and amount of each project for which proceeds from the issuance of the bonds have been allocated under this subsection.
(2) From the balance of the proceeds of the bonds remaining after meeting the requirements of paragraphs (A) and (B), subdivision (1) of this subsection, an amount not less than $80 million shall be allocated for expenditure for the purposes set forth in paragraphs (C) and (D), subdivision (1) of this subsection. In the event the Regional Jail and Correctional Facility Authority determines that an amount less than $80 million is necessary for those purposes, the difference may be allocated for expenditure for the purposes and subject to the conditions set forth in paragraph (E), subdivision (1) of this subsection.
(d) The economic development authority may lease facilities acquired or constructed pursuant to the provisions of this section to the Department of Administration.
(e) For purposes of this section, the terms "regional jail facilities", "correctional facilities" and "juvenile facilities" have the meanings set forth in section two, article twenty of this chapter.
§31-15-6c. Neighborhood Housing and Economic Development Stabilization Program; authority to contract with Housing Development Fund; funding.
(a) It is hereby determined and declared, as a matter of legislative finding:
(1) Local housing initiatives offer a unique opportunity to revitalize and stimulate economic development in low income neighborhoods with high minority populations, which typically have high levels of unemployment and include a large number of distressed properties.
(2) Local housing initiatives may include, but are not limited to, demolition, rehabilitation, new construction, land purchases for development, affordable mortgage initiatives and related job training and community service activities.
(3) In order to promote a positive long-term economic impact on the community, an effective local housing initiative should include a job training component that is designed to provide additional educational and vocational job opportunities and foster the development of marketable skills among the people living within the targeted neighborhoods served by the program.
(4) If done as a part of a focused and coordinated effort, the rehabilitation or replacement of deteriorating residential properties or structures would enhance the value of other properties in the community and improve the overall quality of their neighborhood.
(5) A successful neighborhood revitalization and recovery program can attract new businesses and spur additional investment in the community.
(6) Using locally based or community based not-for-profit entities to spearhead local housing initiatives encourages the development of additional resources, leadership and administrative skills at a local level which, once in place, would continue to focus on the needs and revitalization of the targeted community, after the initial project is complete.
(7) It is reasonable and appropriate to establish a funding mechanism for selected qualifying entities to implement projects that are designed to revitalize and stimulate economic development in low income neighborhoods with relatively high minority populations.
(8) The effectiveness of the initial programs can best be assessed if significant funding is awarded to a limited number of qualifying programs serving targeted communities.
(9) The state would benefit from the development of a working model for stimulating economic development and neighborhood revitalization through local housing initiatives, so that it may be replicated in other parts of the state which have similar demographic and economic conditions.
(10) Substantial federal funds have been earmarked for housing stabilization and stimulating economic recovery, including but not limited to, housing rehabilitation, construction, upgrades and weatherization programs.
(b) There is hereby established within the Economic Development Authority the Neighborhood Housing and Economic Development Stabilization Program. The purpose of the program is to provide loans, grants and forgivable loans to support and carry out local economic development initiatives and locally designed housing initiatives in minority neighborhoods with low-income demographics in this state. Housing initiatives funded by this program may include, but are not limited to, demolition, rehabilitation, new construction, land purchases for development, affordable mortgage initiatives and related job training and community service activities.
(c) To accomplish these objectives and to administer and distribute the funds provided by the Legislature for this purpose, the Economic Development Authority is authorized to contract with the Housing Development Fund to administer the Neighborhood Housing and Economic Stabilization Program.
(d) Upon the effective date of this section, the Economic Development Authority shall, upon appropriation by the Legislature, transfer $2.4 million from the Economic Development Project Bridge Loan Fund established in section eighteen-a, article twenty-two, chapter twenty-nine of this code to the Housing Development Fund. The fund will administer the program and distribute the funds to locally based West Virginia not-for-profit entities to operate local economic development initiatives and locally designed housing initiatives as described in this section. The project's funds shall be awarded through a statewide request for proposal solicitation issued by the Housing Development Fund, after requests for proposals have been reviewed and accepted by the authority.
(e) In awarding the funds, the Housing Development Fund shall give priority to proposals received from local not-for-profit organizations for low-income housing initiatives which include a job training component and promote the employment or utilization of people and businesses who reside within the targeted neighborhoods. A recipient organization must have written established guidelines to promote investment from within and outside the community where the neighborhood is located.
§31-15-7. Loans to industrial development agencies or enterprises for projects.
(a) When it has determined upon application of an industrial development agency or an enterprise that the establishment or acquisition of a particular project has accomplished or will accomplish the public purposes of this article, the authority may contract to loan such agency or enterprise up to one hundred percent of the estimated cost of such project from any or all of the following sources:
(1) The proceeds of bonds or notes issued by the authority pursuant to this article;
(2) Moneys in the fund available to make loans; or
(3) The investment in such loans by the Board of Investments through the consolidated fund of the state as provided in this article.
(b) Loans made under subsection (a) of this section shall be subject to the following conditions:
(1) If the authority is providing less than one hundred percent financing for the project, the authority shall determine that other sources of funds will be available to complete the project;
(2) The loan shall contain such terms and conditions as the authority deems appropriate, which terms and conditions shall be set forth in a resolution adopted by the board in accordance with the provisions of section ten of this article;
(3) The authority may, in its discretion, include within the terms of a loan minimum project operating periods, liquidated damage provisions for cessation of operations prior to the end of the loan period, loan acceleration provisions, project equipment purchase options in the event of early closure and other provisions to protect the jobs intended to be created by the project;
(4) The industrial development agency or enterprise shall pay such loan fees as may be prescribed by the authority from time to time pursuant to the provisions of this article.
Money loaned by the authority to an industrial development agency or enterprise pursuant to subdivisions (2) and (3), subsection (a) of this section seven shall be withdrawn from the fund and paid over to the agency or enterprise in such manner as shall be determined by the authority, and the authority shall deposit all payments of interest on such loans and the principal thereof in the fund.
§31-15-7a.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7b.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7c.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7d.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7e.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7f.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7g.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7h.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7i.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7j.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7k.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7l.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7m.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7n.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7o.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7p.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7q.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-7r.
Repealed.
Acts, 1989 Reg. Sess., Ch. 54.
§31-15-8. Insurance fund.
(a) There is hereby created an insurance fund which shall be a continuing, nonlapsing, revolving fund that consists of:
(1) Moneys appropriated by the state to the insurance fund;
(2) Premiums, fees, and any other amounts received by the authority with respect to financial assistance provided by the authority from the insurance fund;
(3) Upon the satisfaction of any indebtedness or other obligation owed on any property held or acquired by the authority, such proceeds as designated by the authority from the sale, lease, or other disposition of such property;
(4) Income from investments made from moneys in the insurance fund; and
(5) Any other moneys transferred to the insurance fund or made available to it for the purposes described under this section, under this article, or pursuant to any other provisions of this code.
Subject to the provisions of any outstanding insurance agreements entered into by the authority under this section, the authority may enter into covenants or agreements with respect to the insurance fund, and establish accounts within the insurance fund which may be used to implement the purposes of this article. If the authority elects to establish separate accounts within the insurance fund, the authority may allocate its revenues and receipts among the respective accounts in any manner the authority considers appropriate.
If the authority at any time finds that more money is needed to keep the reserves of the insurance fund at an adequate level, the authority, with the consent of the chair, shall send a written request to the Legislature for additional funds.
(b) The insurance fund shall be used for the following purposes by the authority to financially assist projects so long as such financial assistance will, as determined by the authority, fulfill the public purposes of this article:
(1) To insure the payment or repayment of all or any part of the principal of, redemption or prepayment premiums or penalties on, and interest on bonds or notes whether issued under this article or under the Industrial Development and Commercial Development Bond Act, the West Virginia Hospital Finance Authority Act or, with respect to health care facilities only, §8-33-1 et seq. of this code;
(2) To insure the payment or repayment of all or any part of the principal of, redemption or prepayment premiums or penalties on, and interest on any instrument executed, obtained, or delivered in connection with the issuance and sale of bonds or notes whether under this article or under the Industrial Development and Commercial Development Bond Act, the West Virginia Hospital Finance Authority Act or, with respect to health care facilities only, §8-33-1 et seq. of this code;
(3) To insure the payment or repayment of all or any part of the principal of, prepayment premiums or penalties on, and interest on any form of debt instrument entered into by an enterprise, public body or authority of the state with a financial institution, including, but not limited to, banks, insurance companies and other institutions in the business of lending money, which debt instruments shall include, but not be limited to, instruments relating to loans for working capital and to the refinancing of existing debt: Provided, That nothing contained in this subsection or any other provision of this article shall be construed as permitting the authority to insure the refinancing of existing debt except when such insurance will result in the expansion of the enterprise whose debt is to be refinanced or in the creation of new jobs;
(4) To pay or insure the payment of any fees or premiums necessary to obtain insurance, guarantees, letters of credit, or other credit support from any person or financial institution in connection with financial assistance provided by the authority under this section;
(5) To pay any and all expenses of the authority, including, but not limited to:
(A) Any and all expenses for administrative, legal, actuarial, and other services related to the operation of the insurance fund; and
(B) All costs, charges, fees, and expenses of the authority related to the authorizing, preparing, printing, selling, issuing, and insuring of bonds or notes (including, by way of example, bonds or notes, the proceeds of which are used to refund outstanding bonds or notes) and the funding of reserves; and
(6) To insure, for up to 20 years, the payment or repayment of all or any part of the principal of and interest on any form of debt instrument entered into by an eligible broadband provider with a financial institution, including, but not limited to, banks, insurance companies, and other institutions in the business of lending money, which debt instruments are to be solely for capital costs relating to the purposes authorized in §31-15-8a of this code: Provided, That beginning on the effective date of the amendments made to this section during the regular session of the Legislature, 2021, loan moneys shall not be transferred to the fund except as authorized by §12-6C-11a of this code.
(c) Except as relating to insured portions of debt instruments under subdivision (6), subsection (b) of this section, the total aggregate amount of insurance from the insurance fund with respect to the insured portions of principal of bonds or notes or other instruments may not exceed at any time an amount equal to five times the balance in the insurance fund.
(d) The authority may, in its sole and absolute discretion, set the premiums and fees to be paid to it for providing financial assistance under this section. The premiums and fees set by the authority shall be payable in the amounts, at the time, and in the manner that the authority, in its sole and absolute discretion, requires. The premiums and fees need not be uniform among transactions and may vary in amount: (1) Among transactions; and (2) at different stages during the terms of transactions.
(e) The authority may, in its sole and absolute discretion, require the security it believes sufficient in connection with its insuring of the payment or repayment of any bonds, notes, debt, or other instruments described in subdivisions (1) through (4), subsection (b) of this section.
(f) The authority may itself approve the form of any insurance agreement entered into under this section or may authorize the chair or his or her designee to approve the form of any such agreement. Any payment by the authority under an agreement entered into by the authority under this section shall be made at the time and in the manner that the authority, in its sole and absolute discretion, determines.
(g) The obligations of the authority under any insurance agreement entered into pursuant to this article shall not constitute a debt or a pledge of the faith and credit or taxing powers of this state or of any county, municipality, or any political subdivision of this state for the payment of any amount due thereunder or pursuant thereto, but the obligations evidenced by such insurance agreement shall be payable solely from the funds pledged for their payment.
(h) By October 30, 2021, and on or before the 30th day of January, April, July, and October of each year thereafter, the authority shall prepare and submit to the Joint Committee on Government and Finance and the Governor a quarterly report which shall include, at a minimum:
(A) The aggregate outstanding amount of insurance issued from the insurance fund; and
(B) For each agreement to insure a debt or security instrument, the name of the parties to the agreement; the lending financial institution to which any insured debt or security instrument is owed; the total value of any insured debt or security interest; the maturity date of the insured debt or security instrument; and the status of the insured debt or security instrument, including whether the party to the insurance agreement is delinquent or in default on any insured debt or security instrument.
§31-15-8a. Broadband Loan Insurance Program; requirements.
(a) Definitions. – For the purposes of this section:
(1) “Broadband Enhancement Council” or “council” refers to the governmental instrumentality established by §31G-1-3 of this code.
(2) “Broadband Loan Insurance Program” or the “program” refers to the program through which the authority issues loan insurance, as authorized by this section.
(3) “Broadband provider” or “provider” means a business or enterprise providing broadband service, as defined in §31G-1-2 of this code.
(4) “Debt instrument” means any note, loan agreement, or any other form of indebtedness whatsoever and shall expressly include a letter of credit or other agreement relating to a letter of credit.
(5) “Eligible broadband provider” means a business or enterprise certified, in writing, by the Broadband Enhancement Council to the authority to be a broadband provider, and that is not disqualified from participating in the Broadband Loan Insurance Program according to subdivision (4), subsection (c) of this section, as certified, in writing, by the authority.
(6) “Federally funded broadband expansion program” means the Rural Digital Opportunity Fund of the Federal Communications Commission, the Broadband ReConnect Program of the United States Department of Agriculture, or any other federally funded broadband expansion or enhancement program that Congress may from time to time establish.
(7) “Financial institution” means the bank, insurance company, or other institution in the business of lending money, that conditions issuance of a debt or security instrument on loan insurance by the authority, as provided in subdivision (2), subsection (b) of this section.
(8) “Loan insurance” refers to an agreement to insure the payment or repayment of all or any part of the principal of and interest on a debt or security instrument.
(b) Insurance of certain debt or security instruments authorized. –
(1) The authority is authorized to insure, for up to 20 years, the payment or repayment of all or any part of the principal of and interest on any form of debt or security instrument entered into by an eligible broadband provider with a financial institution, which debt or security instruments are to be solely for capital costs relating to:
(A) A project which has as its principal purpose providing broadband service, as defined in §31G-1-2 of this code, to a household or business located in an unserved area, as defined in §31G-1-2 of this code, or to an underserved area meeting the following criteria:
(i) Access to internet service is only available by wireline or fixed wireless technology; and
(ii) Access to internet service in which 15 percent or more of households and businesses cannot obtain internet service with an actual downstream or upstream data rate equivalent to or faster than the current definition of broadband service as defined by the Federal Communications Commission and further certified by the council; or
(B) A project which has as its principal purpose building a segment of a telecommunications network that links a network operator’s core network to a local network plant that serves either an unserved area, as defined in §31G-1-2 of this code, or an area in which no more than two wireline providers are operating.
(2) The authority may not issue loan insurance to a provider, unless the participating financial institution provides written certification to the authority that, but for the authority’s insuring the debt instrument, the financial institution would not otherwise make the loan based solely on the creditworthiness of the loan applicant: Provided, That nothing contained in this section or any other provision of this article may be construed as permitting the authority to insure the refinancing of existing debt.
(3) The authority may make the provision of loan insurance authorized by this section contingent upon the eligible broadband provider receiving an award under a federally funded broadband expansion program.
(4) To fund the loan insurance authorized by this section, the authority shall request a loan from the West Virginia Board of Treasury Investments, according to the requirements of §12-6C-11a of this code.
(c) Insurance application requirements. –
(1) An eligible provider may apply to the authority for loan insurance. The authority shall make the application form or forms available to the public on its website.
(2) The application for loan insurance shall, at a minimum, require the applicant to submit:
(A) Proof of business ownership and other business registration information;
(B) Detailed information regarding all current, previous, and pending business debt, including any past instances of loan delinquency or default or any breach of a borrower covenant;
(C) Detailed records of the provider’s financial history, including, but not limited to, tax returns and financial statements detailing the provider’s income, cash flow, and account balances for the past five years;
(D) The number of persons employed by the provider and the names and contact information for all managers of the project to be insured;
(E) Detailed information regarding assets being presented as collateral, including, but not limited to, serial or identification numbers for all large value machinery, equipment, furniture and fixtures, inventory records, and accounts receivable;
(F) Detailed business plans, financial plans, and financial projections related to the broadband deployment project for which the applicant is requesting loan insurance; and
(G) Any additional information that is relevant to the provider’s eligibility to receive loan insurance and the provider’s ability to deploy broadband in the state, including, but not limited to, any required authorizations or determinations by any applicable regulatory bodies.
(3) The authority shall ensure that applicants are eligible to receive loan insurance and shall select applicants who demonstrate a minimal risk of default on any debt or security instrument to be insured through the program. At a minimum, the authority shall consider the following criteria in determining whether to approve a loan insurance application:
(A) The financial ability of the applicant to complete the insured project and repay the loan;
(B) The credit history of the provider;
(C) The past earnings and projected cash flow of the provider;
(D) The provider’s past performance as a participant in any previous economic development program of this state or of any other state;
(E) The provider’s experience with broadband service deployment in the state or any other state; and
(F) The nature and value of the collateral being offered for the loan insurance.
(4) The authority may not issue loan insurance to a provider if the provider, or a parent company of the provider, has previously defaulted on a debt or security instrument insured by the authority.
(5) The requirements of this subsection do not apply to applications received by the authority for broadband loan insurance or debt instrument insurance prior to the effective date of this section for such applications.
(d) Public notice by applicant. –
(1) Upon the filing of an application for loan insurance under this section, the broadband provider shall cause to be published as a Class II legal advertisement in compliance with §59-3-1 et seq. of this code notice of the filing of the application and that the authority may approve the same unless within 10 business days after completion of publication a written objection is received by the authority from a person or persons alleging that the proposed broadband project does not satisfy the provisions of this section.
(2) The publication area for such notice is to be the county or counties in which any portion of the proposed broadband project is to be constructed. The notice shall be in such form as the authority shall direct and shall include a map of the area or areas to be served by the proposed broadband project. The applicant shall also cause to be mailed by first class, on or before the first day of publication of the notice, a copy of the notice to all known current providers of broadband service within the area proposed to be served.
(3) If an objection under this subsection is timely received by the authority, the authority shall advise the council within five business days. The council shall set the matter for hearing within 30 days of receipt of notice from the authority. The council may establish procedural rules governing such hearings by legislative rule, or the council may follow the Rules of Practice and Procedure of the Public Service Commission. The council shall issue a decision on whether the proposed project satisfies the requirements of this section or not within 30 days of completion of the hearing. Any party participating in the hearing may appeal the council’s decision within 30 days of the issuance of the council’s decision to the Circuit Court of Kanawha County.
(4) This subsection shall apply to all applicants except to those broadband providers that plan on providing a downstream data rate of at least one gigabyte per second to the end user or applicants that have been preliminarily determined to be eligible for a federally funded broadband expansion program.
(5) The requirements this subsection do not apply to applications received by the authority for broadband loan insurance or debt instrument insurance prior to the effective date of this section.
(e) Information to be posted by the authority. — The authority shall make the following information, pertaining to all loan insurance agreements, available on its website:
(1) The name of the insured provider;
(2) The location or locations of the project;
(3) The amount of the authority loan or financial assistance provided by the insurance fund;
(4) The purpose of the loan or financial assistance;
(5) The term, rate, and interest of the loan; and
(6) The fixed assets that serve as security for the loan or insurance provided.
(f) Internal controls and accounting. — The authority shall keep itemized records of all transactions and agreements entered into in furtherance of the program. In administering the program, the authority shall adopt appropriate accounting practices and develop internal controls, including, but not limited to, strict compliance with the requirements of §5A-8-9 of this code.
(g) Quarterly reports and biennial legislative audits. —
(1) By October 30, 2021, and on or before the 30th day of January, April, July, and October of each year thereafter, the authority shall prepare and submit to the Joint Committee on Government and Finance, the Governor, and the West Virginia Board of Treasury Investments a quarterly report which shall include, at a minimum:
(A) For each insured project, the provider name; the lending financial institution; the total value of the loan; the total amount of the loan that is insured pursuant to this section; the maturity date of the loan; the balance of loan moneys outstanding with the authority; and the status of the loan, including whether the loan is in delinquent or in default status.
(B) For loans not in good standing with the financial institution, the reason for the delinquent or default status of the loan; the provider’s plans to address the delinquency or default; the availability of loan collateral that may be seized by the state; the expected outcome of the delinquency or default; and the estimated loss to any state funds that will result from the delinquency or default.
(2) Beginning in 2022, and during each year in which a loan insurance agreement entered into pursuant to this section remains in effect, the authority shall prepare and submit to the Joint Committee on Government and Finance, the Governor, and the board an annual report addressing the status of each project that is insured, pursuant to this section. The report shall, at a minimum, provide project-specific data addressing the broadband service levels being provided by the project, the geographic area to which different broadband service levels are being provided by the project, and the number of households actively receiving broadband service from the project.
(3) Beginning in 2022, and every other year thereafter so long as a loan insurance agreement entered into pursuant to this section remains in effect, the Legislative Auditor shall audit the procedures, accounting practices, and internal controls of the authority for compliance with this section and §12-6C-11a of this code and report the findings of the audit to the Joint Committee on Government and Finance.
§31-15-9. Bonds and notes issued pursuant to this article.
(a) The authority may issue its bonds or notes to fulfill the purposes set forth in this article.
(b) The authority may issue renewal notes to pay notes and, if it considers refunding expedient, may refund or refund in advance, bonds or notes, whether or not originally issued by the authority, by the issuance of new bonds or notes.
(c) Except as may otherwise be expressly provided by the authority, every issue of its notes or bonds shall be special obligations of the authority, payable solely from the property, revenues or other sources of or available to the authority pledged therefor.
(d) The bonds and the notes shall be authorized by the authority pursuant to section ten of this article, and shall be secured, be in such denominations, may bear interest at such rate or rates, be in such form, either coupon or registered, carry such registration privileges, be payable in such medium of payment and at such place or places and such time or times and be subject to such terms of redemption as the authority may authorize. The bonds and notes of the authority may be sold by the authority, at public or private sale, at or not less than the price the authority determines. The bonds and notes shall be executed by manual or facsimile signature by the chairman of the board, and the official seal of the authority or a facsimile thereof shall be affixed to or printed on each bond and note and attested, manually or by facsimile signature, by the secretary of the board, and any coupons attached to any bond or note shall bear the manual or facsimile signature of the chairman of the board. In case any officer whose signature, or a facsimile of whose signature, appears on any bonds, notes or coupons ceases to be such officer before delivery of such bonds or notes, such signature or facsimile is nevertheless sufficient for all purposes the same as if he had remained in office until such delivery; and, in case the seal of the authority has been changed after a facsimile has been imprinted on such bonds or notes, such facsimile seal will continue to be sufficient for all purposes.
§31-15-10. Approval by authority.
(a) To implement the powers and authority conferred upon it by this article, the board of the authority may adopt a resolution pursuant to which it shall:
(1) specify and describe the project;
(2) generally describe the public purpose to be served and the financing transaction to be accomplished under this article;
(3) specify the maximum principal amount of any bonds or notes to be issued by the authority, the maximum principal amount of the loan, and the amount of insurance, if any, to be provided by the authority; and
(4) impose any terms or conditions on the issuance of notes or bonds, the making of a loan or the provision of insurance that the authority deems appropriate.
(b) The board of the authority may, by resolution, or may delegate to the chairman or other designee the authority to, specify, prescribe, determine, provide for and approve such matters, details, forms, documents or procedures as the authority deems appropriate to the making of a loan, the authorization, sale, issuance, security, delivery, or payment of or for bonds or notes, or the authority's insurance of bonds, notes, loans or other instruments, including, without limitation, the rate or rates of interest and any security for the loan or insurance.
(c) The resolution adopted pursuant to this section is administrative in nature, is not subject to procedures required for legislative acts, and is not subject to referendum.
(d) In any suit, action, or proceeding involving the validity or enforceability of any bonds or notes issued, loan made, or insurance extended by the authority under this article or any security therefor, any finding by the authority as to the public purpose of any actions taken under this article and the appropriateness of those actions to serve the public purpose shall be conclusive.
(e) Any resolution authorizing the issuance of bonds or notes shall provide that such bonds or notes shall contain a recital that they are issued pursuant to this article, which recital shall be conclusive evidence of their validity and of the regularity of their issuance.
§31-15-11. Trustee for bondholders; contents of trust agreement; pledge or assignment of revenues.
For bonds or notes issued pursuant to the provisions of this article, in the discretion of the authority, any bonds or notes, including refunding bonds or notes issued by the authority, may be secured by a trust agreement between the authority and a corporate trustee, which trustee may be any bank or trust company within or without the state. Any such trust agreement may contain such binding covenants with the holders of such bonds or notes as to any matter or provisions as are deemed necessary or advisable to the authority to enhance the marketability and security of such bonds or notes and may also contain such other provisions with respect thereto as the authority may authorize and approve. Any resolution adopted by the authority or any trust agreement may contain a pledge or assignment of revenues to be received in connection with the financing.
§31-15-12. Use of funds by authority; restrictions thereon relating to projects.
All moneys, properties and assets acquired by the authority, whether as proceeds from the sale of bonds or notes or as revenues or otherwise, shall be held by it in trust for the purposes of carrying out its powers and duties and shall be used and reused in accordance with the purposes and provisions of this article. Such moneys shall at no time be commingled with other public funds. Such moneys, except as otherwise provided in any resolution authorizing the issuance of bonds or notes or in any trust agreement securing the same, or except when invested pursuant to this article, shall be kept in appropriate depositories and secured as provided and required by law. The resolution authorizing the issuance of such bonds or notes of any issue or the trust agreement securing such bonds or notes shall provide that any officer to whom, or any banking institution or trust company to which, such moneys are paid, shall act as trustee of such moneys and hold and apply them for the purposes hereof, subject to the conditions this article and such resolution or trust agreement provide.
§31-15-12a. Horseshoe pitcher’s hall of fame.
[Repealed.]
§31-15-12b. Loans to support tourism.
(a) In order to preserve jobs and support tourism, the Economic Development Authority may make loans, consistent with this section.
(b) For purpose of this section an applicant is:
(1) A licensed entity that has filed an application for a loan under this section no later than July 1, 2016;
(2) A licensed entity operating in West Virginia; and
(3) A licensed entity that operates a resort comprised of at least seventy-five acres and employing a minimum of one hundred employees.
(c) The proceeds of the loans:
(1) May be used only to refinance the existing indebtedness of qualifying applicants; and
(2) May not exceed the outstanding indebtedness of the qualifying applicants as of January 1, 2016.
(d) The loans shall be:
(1) Made under terms and conditions established by the Economic Development Authority.
(2) Collateralized as determined by the Economic Development Authority.
(e) The total refinancing provided pursuant to this section by the Economic Development Authority shall not exceed 2.5 percent of the Economic Development Authority’s direct loan portfolio.
§31-15-13. Refunding bonds or notes.
Any bonds or notes issued by the authority or any other public body or authority of the state pursuant to the provisions of this article or any other provision of this code and at any time outstanding may at any time and from time to time be refunded by the authority by the issuance of its refunding bonds or notes in such amount as it may deem necessary to refund the principal of the bonds or notes so to be refunded, together with any unpaid interest thereon; to provide additional funds for the purposes of the authority; and to pay any premiums and commissions necessary to be paid in connection therewith. Any such refunding may be effected whether the bonds or notes to be refunded shall have then matured or shall thereafter mature, either by sale of the refunding bonds or notes and the application of the proceeds thereof for the redemption of the bonds or notes to be refunded thereby or by exchange of the refunding bonds or notes for the bonds or notes to be refunded thereby. Such refunding bonds or notes shall be issued in conformance with the provisions of sections nine and ten of this article.
§31-15-14. Obligations of authority undertaken pursuant to this article not debt of state, county, municipality or any political subdivision.
Bonds and notes, including refunding bonds and notes, issued under the authority of this article and any coupons in connection therewith, and any other obligations undertaken by the authority pursuant to this article, shall not constitute a debt or a pledge of the faith and credit or taxing power of this state or of any county, municipality or any other political subdivision of this state, and the holders and owners thereof shall have no right to have taxes levied by the Legislature or the taxing authority of any county, municipality or any other political subdivision of this state for the payment of the principal thereof or interest thereon, but such bonds, notes and other obligations shall be payable solely from revenues and funds pledged for their payment as authorized by this article unless the notes are issued in anticipation of the issuance of bonds or the notes are refunded by refunding bonds issued under the authority of this article, which bonds or refunding bonds shall be payable solely from revenues and funds pledged for their payment as authorized by this article. All such bonds and notes, and all documents evidencing any other obligation, shall contain on the face thereof a statement to the effect that the bonds, notes or such other obligation as to both principal and interest, are not debts of the state or any county, municipality or political subdivision thereof, but are payable solely from revenues and funds pledged for their payment.
§31-15-15. Negotiability of bonds and notes issued pursuant to this article.
Whether or not the bonds or notes issued pursuant to this article are of such form or character as to be negotiable instruments under the Uniform Commercial Code, such bonds or notes are negotiable instruments within the meaning of and for all the purposes of the Uniform Commercial Code, subject only to the provisions of the bonds or notes for registration.
§31-15-16. Bonds and notes issued pursuant to this article; legal investments.
The provisions of sections nine and ten, article six, chapter twelve of this code to the contrary notwithstanding, the bonds and notes issued pursuant to the provisions of this article are securities in which all public officers and bodies of this state, including the West Virginia state Board of Investments, all municipalities and other political subdivisions of this state, all insurance companies and associations and other persons carrying on an insurance business, including domestic for life and domestic not for life insurance companies, all banks, trust companies, societies for savings, building and loan associations, savings and loan associations, deposit guarantee associations and investment companies, all administrators, guardians, executors, trustees and other fiduciaries and all other persons whatsoever who are authorized to invest in bonds or other obligations of the state may properly and legally invest funds, including capital, in their control or belonging to them.
§31-15-16a. Bonds for capital improvements at institutions of higher education, state parks, the State Capitol complex, other state facilities or tourism sites; limitations; authority to issue revenue bonds; use of funds to pay for projects.
(a)(1) The economic development authority shall, in accordance with the provisions of this article, issue revenue bonds from time to time, to pay for a portion of the cost of constructing, equipping, improving or maintaining capital improvement projects under this section or to refund the bonds, at the discretion of the authority. The principal amount of the bonds issued under this section shall not exceed, in the aggregate, an amount that, in the opinion of the authority, is necessary to provide sufficient funds for achievement of the purposes of this section and is within the limits of moneys pledged for the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding bonds authorized by this section. Any revenue bonds issued on or after the effective date of this section which are secured by lottery proceeds shall mature at a time or times not exceeding thirty years from their respective dates. The principal of, and the interest and redemption premium, if any, on the bonds shall be payable solely from the Education, Arts, Sciences and Tourism Debt Service Fund established in section eleven-a, article six, chapter five and continued by this section.
(2) All amounts deposited in the fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding revenue bonds authorized by this section. The authority may further provide in the trust agreement for priorities on the revenues paid into the Education, Arts, Sciences and Tourism Debt Service Fund as may be necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this section or section eleven-a, article six, chapter five of this code. The bonds issued pursuant to this section shall be separate from all other bonds which may be or have been issued from time to time under the provisions of section eleven-a, article six, chapter five of this code. The Education, Arts, Sciences and Tourism Debt Service Fund shall be pledged solely for the repayment of bonds issued pursuant to this section and section eleven-a, article six, chapter five of this code. On or prior to May 1 of each year, commencing May 1, 2010, the authority shall certify to the state lottery director the principal and interest and coverage ratio requirements for the following fiscal year on any revenue bonds or refunding revenue bonds issued pursuant to this section, and for which moneys deposited in the Education, Arts, Sciences and Tourism Debt Service Fund have been pledged, or will be pledged, for repayment pursuant to this section.
(3) After the authority has issued bonds authorized by this section, and after the requirements of all funds have been satisfied, including coverage and reserve funds established in connection with the bonds issued pursuant to this section, any balance remaining in the Education, Arts, Sciences and Tourism Debt Service Fund may be used for the redemption of any of the outstanding bonds issued under this section which, by their terms, are then redeemable or for the purchase of the outstanding bonds at the market price, but not to exceed the price, if any, at which redeemable, and all bonds redeemed or purchased shall be immediately canceled and shall not again be issued.
(b) The authority shall expend sixty percent of the bond proceeds, net of issuance costs, reserve funds and refunding costs, for certified capital improvement projects at state institutions of higher education. The Higher Education Policy Commission shall submit a proposed list of capital improvement projects to the Governor on or before January 1, 2010. Thereafter, the Governor shall certify to the authority on or before February 1, 2010, a list of those capital improvement projects at state institutions of higher education that will receive funds from the proceeds of bonds issued pursuant to this section.
At any time prior to the issuance of bonds under this section, the Governor may certify to the authority a revised list of capital improvement projects at state institutions of higher education that will receive funds from the proceeds of bonds issued pursuant to this section. The Governor shall consult with the Higher Education Policy Commission prior to certifying a revised list of capital improvement projects to the authority.
(c) The authority shall expend the balance of the bond proceeds for certified projects at state parks, the capitol complex, other state facilities or tourism sites.
(1) A committee comprised of the secretary of the Department of Administration, the director of the Division of Natural Resources, the director of the West Virginia Development Office and a representative of the capitol building commission, other than the secretary of the Department of Administration, who shall be selected by the capitol building commission, shall submit a proposed list of capital improvement projects to the Governor on or before January 1, 2010. Thereafter, the Governor shall certify to the authority on or before February 1, 2010, a list of those capital improvement projects at state parks, the State Capitol complex, other state facilities or tourism sites that will receive funds from the proceeds of bonds issued pursuant to this section. (2) At any time prior to the issuance of bonds under this section, the Governor may certify to the authority a revised list of capital improvement projects at state parks, the State Capitol Complex, other state facilities or tourism sites that will receive funds from the proceeds of bonds issued pursuant to this section. The Governor shall consult with the committee established by this subsection prior to certifying a revised list of capital improvement projects to the authority.
§31-15-16b. Lottery revenue bonds for Cacapon Resort State Park and Beech Fork State Park.
(a)(1) The economic development authority shall, in accordance with the provisions of this article, issue revenue bonds, in one or more series, from time to time, to pay for all or a portion of the cost of constructing, equipping, improving or maintaining capital improvement projects under this section or to refund the bonds, at the discretion of the authority. The principal amount of the bonds issued under this section shall not exceed, in the aggregate principal amount of $52.5 million. Any revenue bonds issued on or after the effective date of this section which are secured by lottery proceeds shall mature at a time or times not exceeding thirty years from their respective dates. The principal of, and the interest and redemption premium, if any, on the bonds shall be payable solely from the Cacapon and Beech Fork State Parks Lottery Revenue Debt Service Fund established in this section.
(2) There is hereby created in the State Treasury a special revenue fund named the "Cacapon and Beech Fork State Parks Lottery Revenue Service Fund" into which shall be deposited those amounts specified in section eighteen-e, article twenty-two, chapter twenty-nine of this code. All amounts deposited in the fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding revenue bonds authorized by this section. The authority may further provide in the trust agreement for priorities on the revenues paid into the Cacapon and Beech Fork State Parks Lottery Revenue Debt Service Fund as may be necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this section. The Cacapon and Beech Fork State Parks Lottery Revenue Debt Service Fund shall be pledged solely for the repayment of bonds issued pursuant to this section. On or prior to May 1 of each year, commencing, upon issuance of the bonds, the authority shall certify to the state lottery director the principal and interest and coverage ratio requirements for the following fiscal year on any revenue bonds or refunding revenue bonds issued pursuant to this section, and for which moneys deposited in the Cacapon and Beech Fork State Parks Lottery Revenue Debt Service Fund have been pledged, or will be pledged, for repayment pursuant to this section.
(3) After the authority has issued bonds authorized by this section, and after the requirements of all funds have been satisfied, including coverage and reserve funds established in connection with the bonds issued pursuant to this section, any balance remaining in the Cacapon and Beech Fork State Parks Lottery Revenue Debt Service Fund may be used for the redemption of any of the outstanding bonds issued under this section which, by their terms, are then redeemable or for the purchase of the outstanding bonds at the market price, but not to exceed the price, if any, at which redeemable, and all bonds redeemed or purchased shall be immediately canceled and shall not again be issued.
(b) The authority shall expend the bond proceeds, net of issuance costs, reserve funds and refunding costs, for certified capital improvement projects at Cacapon Resort State Park and Beech Fork State Park. The Division of Natural Resources shall submit a proposed list of capital improvement projects to the Governor on or before January 1, 2013. Thereafter, the Governor shall certify to the authority on or before February 1, 2013, a list of those capital improvement projects at Cacapon Resort State Park and Beech Fork State Park that will receive funds from the proceeds of bonds issued pursuant to this section. At any time prior to the issuance of bonds under this section, the Governor may certify to the authority a revised list of capital improvement projects at Cacapon Resort State Park and Beech Fork State Park that will receive funds from the proceeds of bonds issued pursuant to this section. The Governor shall consult with the Division of Natural Resources prior to certifying a revised list of capital improvement projects to the authority.
(c) Except as may otherwise be expressly provided by the authority, every issue of its notes or bonds shall be special obligations of the authority, payable solely from the property, revenues or other sources of or available to the authority pledged therefor.
(d) The bonds and the notes shall be authorized by the authority pursuant to this section, and shall be secured, be in such denominations, may bear interest at such rate or rates, taxable or tax-exempt, be in such form, either coupon or registered, carry such registration privileges, be payable in such medium of payment and at such place or places and such time or times and be subject to such terms of redemption as the authority may authorize. The bonds and notes of the authority may be sold by the authority, at public or private sale, at or not less than the price the authority determines. The bonds and notes shall be executed by manual or facsimile signature by the chairman of the board, and the official seal of the authority or a facsimile thereof shall be affixed to or printed on each bond and note and attested, manually or by facsimile signature, by the secretary of the board, and any coupons attached to any bond or note shall bear the manual or facsimile signature of the chairman of the board. In case any officer whose signature, or a facsimile of whose signature, appears on any bonds, notes or coupons ceases to be such officer before delivery of such bonds or notes, such signature or facsimile is nevertheless sufficient for all purposes the same as if he or she had remained in office until such delivery; and, in case the seal of the authority has been changed after a facsimile has been imprinted on such bonds or notes, such facsimile seal will continue to be sufficient for all purposes.
§31-15-16c. Bonds for county capital improvements; limitations; authority to issue revenue bonds; use of funds to pay for projects.
(a) The West Virginia Economic Development Authority may, in accordance with the provisions of this article and article twenty seven, chapter seven of this code, issue special revenue bonds from time to time, to pay for a portion of the cost of constructing, equipping, improving or maintaining road projects under article twenty seven, chapter seven of this code or to refund the bonds, at the request of the county. The principal amount of the bonds issued under this section may not exceed, in the aggregate, an amount that, in the opinion of the Authority, is necessary to provide sufficient funds for achievement of the purposes of this section and article twenty seven, chapter seven of this code, and is within the limits of moneys pledged for the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding bonds authorized by this section and article twenty seven, chapter seven of the code. Any revenue bonds issued on or after the effective date of this section which are secured by county transportation sales and use tax shall mature at a time or times not exceeding thirty years from their respective dates except as otherwise provided in article twenty-seven, chapter seven of the code. The principal, interest and redemption premium, if any, on the bonds shall be payable solely from the county’s subaccount in the County Road Improvement Account in the State Treasury established in article twenty-seven, chapter seven of this code.
(b) All amounts deposited in the fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding revenue bonds authorized by this section. The Authority may further provide in the trust agreement for priorities on the revenues paid into the county's subaccount in the County Road Improvement Account as may be necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this section or article twenty seven, chapter seven of this code. The bonds issued pursuant to this section shall be separate from all other bonds which may be or have been issued from time to time under the provisions of this article or article twenty seven, chapter seven of this code. The debt service fund established for each bond issue shall be pledged solely for the repayment of bonds issued pursuant to this section and article twenty seven, chapter seven of this code. On or prior to May 1 of each year, commencing May 1, 2017, the Authority shall certify to each county commission the principal and interest and coverage ratio requirements for the following fiscal year on any revenue bonds or refunding revenue bonds issued pursuant to this section, and for which moneys deposited in the debt service fund have been pledged, or will be pledged, for repayment pursuant to this section.
(c) After the Authority has issued bonds authorized by this section, and after the requirements of all funds have been satisfied, including coverage and reserve funds established in connection with the bonds issued pursuant to this section, any balance remaining in the debt service fund may be used for the redemption of any of the outstanding bonds issued under this section which, by their terms, are then redeemable or for the purchase of the outstanding bonds at the market price, but not to exceed the price, if any, at which redeemable, and all bonds redeemed or purchased shall be immediately canceled and shall not again be issued. Any funds not used as provided in this subsection shall be returned to the county commission of the county for which the bonds were issued.
§31-15-17. Exemption from taxation.
The exercise of the powers granted to the authority by this article will be in all respects for the benefit of the people of the state for the improvement of their health, safety, convenience and welfare and is a public purpose. As the operation and maintenance of projects financed under this article will constitute the performance of essential governmental functions, the authority shall not be required to pay any taxes or assessments upon any property acquired or used by the authority or upon the income therefrom. All bonds and notes of the authority, and all interest and income thereon, shall be exempt from all taxation by this state and any county, municipality, political subdivision or agency thereof, except inheritance taxes.
§31-15-18. Personal liability; persons executing bonds or notes issued pursuant to this article.
Neither the members or officers of the authority or of any authority, agency or office, nor any person executing the bonds or notes issued pursuant to the provisions of this article, shall be liable personally on such bonds or notes or be subject to any personal liability or accountability by reason of the issuance thereof.
§31-15-19. Cumulative authority as to powers conferred; applicability of other statutes and charters; bonds and notes issued pursuant to this article.
The provisions of this article relating to the making of loans and to the issuance of bonds and notes shall be construed as granting cumulative authority for the exercise of the various powers herein conferred, and neither the powers nor any bonds or notes issued hereunder shall be affected or limited by any other statutory or charter provision now or hereafter in force, other than as may be provided in this article, it being the purpose and intention of this article to create full, separate and complete additional powers. The various powers conferred herein may be exercised independently and notwithstanding that no bonds or notes are issued hereunder.
§31-15-20. Authority of the Board of Investments.
[Repealed].
§31-15-21. Loan and insurance application requirements.
Prior to the loaning of any funds to an industrial development agency or an enterprise for a project or the insuring of any bonds, notes, loans or other instruments pursuant to section eight of this article, the authority shall receive from such agency or enterprise an application in such form as adopted by the authority for either the loan or the insurance.
§31-15-22. Documentary materials concerning trade secrets; commercial or financial information; or confidentiality.
Any documentary material or data made or received by the authority for the purpose of furnishing assistance to a business, to the extent that such material or data consists of trade secrets or commercial or financial information regarding the financial position or business operation of such business, shall not be considered public records and shall be exempt from disclosure pursuant to the provisions of chapter twenty-nine-b of this code. Any discussion or consideration of such trade secrets or commercial or financial information may be held by the authority in executive session closed to the public, notwithstanding the provisions of article nine-a, chapter six of this code: Provided, That the authority shall make publicly available the following information regarding executed loans or its provision of insurance: (1) the name of the debtor, (2) location(s) of the project, (3) amount of the authority loan or financial assistance provided by the insurance fund, (4) the purpose of the loan or financial assistance, (5) the term, rate and interest of the loan, and (6) the fixed assets which serve as security for the loan or insurance provided.
§31-15-23. Economic development fund.
The economic development fund, to which shall be credited any appropriation made by the Legislature to the authority, any funds which the authority is authorized to receive under any provision of this code, other funds which the board directs to be deposited into the fund, and such other deposits as are provided for in this section, is hereby continued in the State Treasury as a special account.
The authority may requisition from the fund such amounts as are necessary to provide for the payment of the administrative expenses of this article. Notwithstanding any other provision of this article, whenever the authority determines it to be necessary to purchase at a foreclosure sale any project pursuant to subdivision (t), section six of this article, it may requisition from the fund such amount as is necessary to pay the purchase price thereof.
The authority shall requisition from the fund such amounts as are allocated and appropriated for loans to industrial development agencies or enterprises for projects. As loans to industrial development agencies or enterprises are repaid to the authority pursuant to the terms of mortgages and other agreements, the authority shall pay such amounts into the fund, consistent with the intent of this article that the fund shall operate as a revolving fund whereby all appropriations and payments made thereto may be applied and reapplied for the purposes of this article. Revenues deposited into the fund may be used to make payments of interest and principal and may be pledged as security for bonds, security interests or notes issued by the authority pursuant to this article.
Whenever the authority determines that the balance in the fund is in excess of the immediate requirements for loans, it may request that such excess be invested until needed for loan purposes, in which case such excess shall be invested in a manner consistent with the investment of other temporary state funds. Interest earned on any money invested pursuant to this section shall be credited to the fund.
If the authority determines that funds held in the fund are in excess of the amount needed to carry out the purposes of this article, it may take such action as is necessary to release such excess and transfer it to the General Fund of the State Treasury.
§31-15-24. Transfer of state property to the authority.
The Governor is authorized to provide for the transfer to the authority of the use, possession and control of such real or personal property of the state as he may from time to time deem useful to the authority in the conduct of its activities as authorized by this article.
§31-15-25. Validity of any pledge, mortgage, deed of trust or security instrument.
It is the intention hereof that any pledge, mortgage, deed of trust or security instrument made by or for the benefit of the authority shall be valid and binding between the parties from the time the pledge, mortgage, deed of trust or security instrument is made; and that the moneys or property so pledged, encumbered, mortgaged or entrusted shall immediately be subject to the lien of such pledge, mortgage, deed of trust or security instrument without any physical delivery thereof or further act.
§31-15-26. Money of the authority.
All money accruing to the authority from whatever source derived, except legislative appropriations, shall be collected and received by the treasurer of the authority, who shall pay it into the State Treasury in the manner required by section two, article two, chapter twelve of this code, which shall be credited to the appropriate fund of the authority.
§31-15-27. Conflict of interest; when contracts void.
No member, officer or employee of the authority shall either directly or indirectly be a party to or interested in any manner in any contract or agreement with the authority whereby liability or indebtedness against or to the authority is in any manner created. Any contract or agreement made in violation of the provisions of this section shall be void and no action thereon shall be maintained against the authority.
§31-15-28. Agreement with federal agencies not to alter or limit powers of authority.
The state hereby pledges to and agrees with each federal agency that, if such agency constructs or loans or contributes any funds for any project, the state will not alter or limit the rights and powers of the authority in any manner which would be inconsistent with the due performance of any agreement between the authority and such federal agency and that the authority shall continue to have and exercise all powers granted for carrying out the purposes of this article for so long as necessary.
§31-15-29. Audits.
As soon as possible after the close of each fiscal year, the authority shall make an annual report of its activities for the preceding fiscal year to the Governor and the Legislature. Each such report shall set forth a complete operating and financial statement covering the authority's operations during the preceding fiscal year. The authority shall cause an audit of its books and accounts to be made at least once each fiscal year by certified public accountants and the cost thereof may be treated as a part of the cost of construction or of operations of its projects.
§31-15-30. Projects not to be considered public improvements.
No project, enterprise or business facility which conducts as its primary activity a manufacturing process or other nongovernmental or nonpublic activity may be deemed to be a "public improvement" within the meaning of the provisions of article five-a, chapter twenty-one of this code.
§31-15-31. Foreign trade zones; authority approval.
Any public corporation located in the state is hereby authorized to apply for, develop, maintain and operate a foreign trade zone in the state pursuant to and in accordance with all applicable provisions of federal law: Provided, That any public corporation desiring to apply for or develop a foreign trade zone must first receive the approval of the authority.
§31-15-32. Severability.
If any section, subsection, subdivision, subparagraph, sentence or clause of this article is adjudged to be unconstitutional or invalid, such adjudication shall not affect the validity of the remaining portions of this article, and, to this end, the provisions of this article are hereby declared to be severable.
§31-15-33. 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.
§31-15A-1. Short title.
This article shall be known and may be cited as the "West Virginia Infrastructure and Jobs Development Act."
§31-15A-2. Definitions.
For purposes of this article:
(a) "Bond" or "infrastructure revenue bond" means a revenue bond, note, or other obligation issued by the water development authority pursuant to this article, including bonds to refund such bonds and notes to renew such notes, and notes in anticipation of and payable from the proceeds of such bonds.
(b) "Code" means the Code of West Virginia, 1931, as amended;
(c) "Cost" means, as applied to any project to be financed, in whole or in part, with infrastructure revenues or funds otherwise provided pursuant to this article, the cost of planning, acquisition, improvement and construction of the project; the cost of preliminary design and analysis, surveys, borings; the cost of environmental, financial, market and engineering feasibility studies, assessments, applications, approvals, submissions or clearances; the cost of preparation of plans and specifications and other engineering services; the cost of acquisition of all land, rights-of-way, property rights, easements, franchise rights and any other interests required for the acquisition, repair, improvement or construction of the project; the cost of demolishing or removing any buildings or structures on land so acquired, including the cost of acquiring any lands to which buildings or structures may be moved; the cost of excavation, grading, shaping or treatment of earth, demolishing or removing any buildings or structures; the cost of constructing any buildings or other improvements; the cost of all pumps, tanks, vehicles, apparatus and other machinery, furnishings and equipment; loan or origination fees and all finance charges and interest incurred prior to and during the construction and for no more than six months after completion of construction; the cost of all legal services and expenses; the cost of all plans, specifications, surveys and estimates of cost; all working capital and other expenses necessary or incident to determining the feasibility or practicability of acquiring, repairing, improving or constructing any project; the cost of placing any project in operation; and all other costs and expenses of any kind or nature incurred or to be incurred by the project sponsor developing the project that are reasonable and necessary for carrying out all works and undertakings necessary or incident to the accomplishment of any project: Provided, That costs shall not include any amounts related to the ongoing operations of the owner or operator, depreciation thereof or any other cost which the council or the water development authority has not determined to be consistent with the purposes and objectives of this article;
(d) "Council" means the West Virginia infrastructure and jobs development council created in section three of this article;
(e) "Division of environmental protection" means the Division of Environmental Protection established under article one, chapter twenty-two of this code, or any successor to all or any substantial part of its powers and duties;
(f) "Division of health" means the division of health created in article one, chapter sixteen of this code, or any successor to all or any substantial part of its powers and duties;
(g) "Economic development authority" means the economic development authority established under article fifteen, chapter thirty-one of the code, or any successor to all or any substantial part of its powers and duties;
(h) "Emergency project" means a project which the council has determined: (1) Is essential to the immediate economic development of an area of the state; and (2) will not likely be developed in that area if construction of the project is not commenced immediately;
(i) "Governmental agency" means any county; municipality; watershed improvement district; assessment district; soil conservation district; sanitary district; public service district; drainage district; regional governmental authority and any other state governmental agency, entity, political subdivision or public corporation or agency authorized to acquire, construct or operate water or wastewater facilities or infrastructure projects;
(j) "Housing development fund" means the West Virginia Housing Development Fund established under article eighteen of this chapter, or any successor to all or any substantial part of its powers and duties;
(k) "Infrastructure fund" means the West Virginia infrastructure fund created and established in section nine of this article;
(l) "Infrastructure project" means a project in the state which the council determines is likely to foster and enhance economic growth and development in the area of the state in which the project is developed, for commercial, industrial, community improvement or preservation or other proper purposes, including, without limitation, tourism and recreational housing, land, air or water transportation facilities and bridges, industrial or commercial projects and facilities, mail order, warehouses, wholesale and retail sales facilities and other real and personal properties, including facilities owned or leased by this state or any other project sponsor, and includes, without limitation: (1) The process of acquiring, holding, operating, planning, financing, demolition, construction, improving, expanding, renovation, leasing or otherwise disposing of the project or any part thereof or interest therein; and (2) preparing land for construction and making, installing or constructing improvements on the land, including water or wastewater facilities or any part thereof, steam, gas, telephone and telecommunications and electric lines and installations, roads, bridges, railroad spurs, buildings, docking and shipping facilities, curbs, gutters, sidewalks, and drainage and flood control facilities, whether on or off the site;
(m) "Infrastructure revenue" means all amounts appropriated by the Legislature; all amounts deposited into the infrastructure fund; any amounts received, directly or indirectly, from any source for the use of all or any part of any project completed pursuant to this article; and any other amounts received by the State Treasurer, council or the water development authority for the purposes of this article;
(n) "Need of the project sponsors" means there is a public need for a project. The council shall construe a population increase evidenced by the last two decennial censuses in a county in which a project is proposed, as a factor supporting the conclusion that a need exists for projects in that county.
(o) "Project" means any wastewater facility, water facility project or any combination thereof, constructed or operated or to be constructed or operated by a project sponsor;
(p) "Project sponsor" means any governmental agency or person, or any combination thereof, including, but not limited to, any public utility, which intends to plan, acquire, construct, improve or otherwise develop a project;
(q) "Public service commission" means the Public Service Commission of West Virginia created and established under section three, article one, chapter twenty-four of this code, or any successor to all or any substantial part of its powers and duties;
(r) "Person" means any individual, corporation, partnership, association, limited liability company or any other form of business organization;
(s) "Public utility" means any person or persons, or association of persons, however associated, whether incorporated or not, including, without limitation, any governmental agency, operating a wastewater facility or water facility as a public service, which is regulated by the Public Service Commission as a public utility under chapter twenty-four of this code or which is required to file its tariff with the Public Service Commission;
(t) "State Development Office" means the West Virginia Development Office established under article two, chapter five-b of this code, or any successor to all or any substantial part of its powers and duties;
(u) "State infrastructure agency" means the division of health, Division of Environmental Protection, Housing Development Fund, Public Service Commission, state Development Office, water development authority, economic development authority and any other state agency, division, body, authority, commission, instrumentality or entity which now or in the future receives applications for the funding of, and provides funding or technical assistance to, the planning, acquisition, construction or improvement of a project;
(v) "Wastewater facility" means all facilities, land and equipment used for or in connection with treating, neutralizing, disposing of, stabilizing, cooling, segregating or holding wastewater, including, without limitation, facilities for the treatment and disposal of sewage, industrial wastes or other wastes, wastewater, and the residue thereof; facilities for the temporary or permanent impoundment of wastewater, both surface and underground; and sanitary sewers or other collection systems, whether on the surface or underground, designed to transport wastewater together with the equipment and furnishings therefor or thereof and their appurtenances and systems, whether on the surface or underground including force mains and pumping facilities therefor;
(w) "Water development authority" means the West Virginia water development authority continued pursuant to the provisions of article one, chapter twenty-two-c of this code, or any successor to all or any substantial part of its powers and duties; and
(x) "Water facility" means all facilities, land and equipment used for or in connection with the collection and/or storage of water, both surface and underground, transportation of water, storage of water, treatment of water and distribution of water all for the purpose of providing potable, sanitary water suitable for human consumption and use.
§31-15A-3. West Virginia Infrastructure and Jobs Development Council continued; members of council; staff of council.
(a) The West Virginia Infrastructure and Jobs Development Council is continued. The council is a governmental instrumentality of the state. The exercise by the council 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 determined to be, essential governmental functions and for a public purpose.
(b) The council shall consist of thirteen members, including:
(1) The Governor or designee;
(2) The Executive Director of the Housing Development Fund or his or her designee;
(3) The Director of the Division of Environmental Protection or his or her designee;
(4) The Director of the Economic Development Authority or his or her designee;
(5) The Director of the Water Development Authority or his or her designee;
(6) The Director of the Division of Health or his or her designee;
(7) The Chairman of the Public Service Commission or his or her designee; and
(8) Six members representing the general public: Provided, That there shall be at least one member representing the general public from each congressional district. No more than one member representing the general public may be a resident of the same county.
(c) The Governor shall appoint the public members of the council who shall serve three-year staggered terms.
(d) The Commissioner of the Division of Highways, the Executive Director of the State Rail Authority, two members of the West Virginia Senate, two members of the West Virginia House of Delegates, the Chancellor of the Higher Education Policy Commission and the Chancellor of the West Virginia Council for Community and Technical College Education serve as advisory members of the council. The advisory members shall be ex officio, nonvoting members of the council.
(e) The Governor shall appoint the legislative members of the council: Provided, That no more than three of the legislative members may be of the same political party.
(f) The Governor or designee shall serve as chairman and the council shall annually appoint a vice chairperson and shall appoint a secretary, who need not be a member of the council and who shall keep records of its proceedings. Seven members of the council 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 council. A vacancy in the membership of the council does not impair the rights of a quorum by such vote to exercise all the rights and perform all the duties of the council.
(g) A member of the council who serves by virtue of his or her office does not receive compensation or reimbursement of expenses for serving as a member. The public members are reimbursed for actual expenses incurred in the service of the council in a manner consistent with guidelines of the travel management office of the Department of Administration.
(h) The council meets at least monthly to review projects and infrastructure projects requesting funding assistance and otherwise to conduct its business and may meet more frequently if necessary. Notwithstanding any other provision of this article to the contrary, the Economic Development Authority is not subject to council review with regard to any action taken pursuant to the authority established in article fifteen, chapter thirty-one of this code. The Governor’s Civil Contingent Fund is not subject to council review with regard to projects or infrastructure projects funded through the Governor’s Civil Contingent Fund.
(i) The Water Development Authority shall provide office space for the council and each governmental agency represented on the council shall provide staff support for the council in the manner determined appropriate by the council.
(j) The council shall invite to each meeting 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 Army Corps of Engineers or any successors thereto. The council shall invite other appropriate parties as is necessary to effectuate the purposes of this article.
§31-15A-4. Development of guidelines and preliminary application for funding assistance.
(a) To implement and carry out the intent of this article, the council shall promulgate legislative rules in accordance with article three, chapter twenty-nine-a of this code to develop comprehensive, uniform guidelines for use by the council and other state infrastructure agencies in evaluating any request by a project sponsor for funding assistance to plan, acquire, construct, improve or otherwise develop a project or infrastructure project. The guidelines shall include the following factors: (1) The public health benefits of the project or infrastructure project; (2) the economic development benefits of the project or infrastructure project; (3) the degree to which the project or infrastructure project will correct deficiencies in the compliance of water supply or sewage treatment facilities with state or federal laws, regulations or standards; (4) the degree to which the project or infrastructure project encourages effective and efficient consolidation of water or sewage treatment systems consistent with the comprehensive plan developed pursuant to section six of this article; (5) the cost effectiveness of the project or infrastructure project as compared with alternatives which achieve substantially the same public health or economic development benefits, including the consideration of providing maximum feasible fire protection; (6) the availability of alternative sources of funding which could finance all or a part of the project and infrastructure project, and the need for the assistance of the council to finance the project or infrastructure project or attract other sources of funding; (7) the applicant's ability to operate and maintain the system if the project or infrastructure project is approved; (8) the degree to which the project or infrastructure project achieves other state or regional planning goals; (9) the estimated date upon which the project or infrastructure project could commence if funding were available and the estimated completion date of the project or infrastructure project; and (10) such other considerations as the council may consider necessary or appropriate to accomplish the purpose and intent of this article.
(b) The council shall create a preliminary application form which shall be used by all project sponsors requesting funding assistance from state infrastructure agencies to plan, acquire, construct, improve or otherwise develop an infrastructure project or project. The preliminary application form shall contain all information required by all state infrastructure agencies that will be required to issue permits and/or certificates regarding the project or infrastructure project. The preliminary application shall require the project sponsor to set forth the type and proposed location of the infrastructure project or 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 infrastructure project or project; information demonstrating the need for the infrastructure project or project and that the proposed funding of the project is the most economically feasible and viable alternative to completing the project or infrastructure project; and such other information as the council considers necessary to enable it to recommend the type of project or infrastructure project financing, in terms of the kind, amount and source of funding, which the project sponsor should pursue and which the state infrastructure agency or agencies should consider an appropriate investment of public funds, and to otherwise carry out the intent of this article.
§31-15A-5. Requirements for project funding assistance; review of project preliminary applications by council.
(a) No project sponsor may apply for or receive any loan, loan guarantee, grant or other funding assistance for a project or infrastructure project from any state infrastructure agency (i) unless the project sponsor requiring the funding assistance first submits a completed preliminary application to the council on the form prepared for such purpose by the council pursuant to section four of this article, and (ii) except as may be recommended by the council after consideration of the preliminary application: Provided, That any project sponsor which has an infrastructure project or project with either acceptable bids or all funding in place on the effective date of this act is not required to comply with the provisions of this section.
(b) The council shall, within thirty days of receipt of each completed preliminary application submitted to it, review the preliminary application and either (i) make a written recommendation as to the infrastructure project or 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 infrastructure agency or agencies should consider an appropriate investment of public funds, or (ii) if the council determines that (1) the proposed project or infrastructure project is not eligible for funding assistance from any state infrastructure agency, or (2) the proposed project or infrastructure project is not otherwise an appropriate or prudent investment of state funds, the council shall recommend that the project sponsor not seek funding from any state infrastructure agency. A project sponsor shall include the preliminary application and the council's recommendations in any application to a state infrastructure agency.
(c) The council shall provide a copy of its recommendation with respect to each preliminary application, together with a copy of the preliminary application, to all appropriate state infrastructure agencies, which shall take into account the council's recommendations with respect to a project or infrastructure project before taking any action with respect to the project. No state infrastructure agency shall take any action inconsistent with the recommendation of the council unless the governing body of the agency, or the head of the agency if it has no governing body, expressly finds and determines that the recommendation is not in the best interest of the state or the area in which the proposed infrastructure project or project is to be located.
(d) In reviewing each preliminary application, the council shall use the engineering, financial and technical expertise of the respective staffs of the state infrastructure agencies represented on the council so as to recommend for funding those projects or infrastructure projects which are consistent with the purposes and intent of this article and with the policies and priorities of this state generally. The council may include in its findings a recommendation that a state infrastructure agency consider technical reports on the project prepared by other infrastructure agencies or by any federal agency.
§31-15A-6. Powers, duties and responsibilities of the council generally; comprehensive assessment.
(a) In addition to the powers set forth elsewhere in this article, the council is granted, has and may exercise all powers necessary or appropriate to carry out and effectuate the purposes and intent of this article. The council shall have the power and capacity to:
(1) Provide consultation services to project sponsors in connection with the planning, acquisition, improvement, construction or development of any infrastructure project or project;
(2) Periodically prepare a list of infrastructure projects or projects which cannot meet the established funding guidelines of the various state infrastructure agencies, other than the Housing Development Fund, but which are consistent with the mandates of this article and recommend to the Water Development Authority that it make a grant or loan to the project sponsors from the infrastructure fund to finance the cost of one or more such projects or infrastructure projects;
(3) Do all other acts necessary and proper to carry out the powers expressly granted to the authority in this article; and
(4) Make and execute contracts, commitments and obligations and other instruments necessary or convenient for the exercise of its powers.
(b) The council shall develop a comprehensive statewide inventory of water supply systems and sewage treatment systems and an assessment of current and future needs. The assessment shall identify the areas of the state which do not have adequate public water or sewage systems and offer recommendations for the construction of new facilities or the extension or expansion of existing facilities to meet the identified needs. The council shall include in the assessment an identification of the obstacles, issues and problems which prevent or inhibit development of adequate infrastructure throughout the state, including financial, governmental, physical, or geographical factors and make recommendation as the council 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 in 1996.
(c) The council shall study the viability of the consolidation of public service districts throughout the state. The council shall report their findings and conclusions on or before January 16, 1995 to the Governor, Speaker of the House of Delegates and President of the Senate.
§31-15A-7. Current and prospective planning; roads and highways; report to Division of Highways.
(a) The council shall take into account the current and prospective infrastructure needs in relation to plans of the Division of Highways for the development and building of new roads. Upon completion of an environmental impact study, the commissioner of highways shall provide the council with plans for any and all new roads. In a timely manner, the council shall advise the commissioner of the Division of Highways on the feasibility of the expansion of new or existing water and sewer lines concomitant to the construction of the new roads.
(b) The council has the authority to appoint local infrastructure planning teams. The local infrastructure planning teams may consist of the following: A designee of the Division of Highways from the region where the new road is being built; a designee of the Division of Highways from the central state office; a designee from the Environmental Engineers Division; a designee from the local developmental authority where the new road is being built; a designee from the regional developmental authority in the area where the new road is being built; a designee from the Public Service Commission; a designee from the Division of Environmental Protection; a designee from the county commission where the new road is being built who shall serve as chairperson of the planning team; a citizen of the county where the new road is being built to be chosen by the county commission; and the elected state delegates and senators from the area where the new road is being built. In order to avoid delay of any highway project, immediately upon appointment of a local infrastructure planning team, the director of the Division of Highways shall submit to the council a time frame within which the planning team must act and within which the planning team must submit any plans, maps, recommendations or reports developed pursuant to this subsection. The local infrastructure planning team shall meet prior to the development and building of a new road. Members of the local infrastructure planning team shall only receive payment for actual expenses incurred. The local infrastructure planning team shall advise the commissioner of the Division of Highways on the feasibility of an infrastructure plan. The local infrastructure planning team shall meet to develop an infrastructure plan that includes an assessment study of existing water and sewer lines and a feasibility study on future development and laying of water and sewer lines. After these studies are completed, a developmental map shall be drawn of the proposed road route with overlays of the proposed water and sewer lines. These studies and the map shall be presented to the commissioner of the Division of Highways and shall be used by the commissioner in the planning, developing and building of the road.
(c) The water development authority shall establish a restricted account within the infrastructure fund to be expended for the construction of water and sewage lines as may be recommended by the council in accordance with this article and specifically, in accordance with the plan developed under subsection (b) of this section. The reserve account shall be known as the "infrastructure road improvement reserve account". The council and the Division of Highways may enter into agreements to share the cost of financing projects approved in accordance with this section from moneys available in the infrastructure road reserve account and moneys available from the state road fund. Annually, the council may direct the water development authority to transfer funds from the infrastructure fund in an amount not to exceed $1 million to the restricted account: Provided, That at no time may the balance of the restricted account exceed $1 million.
(d) For the purposes of this section the term "new" means a road right-of-way being built for the first time.
(e) After the construction of water and sewer lines adjacent to the new road, these new lines shall be turned over to existing utilities by expansion of boundaries of public service districts or shall be main extensions from the municipality.
§31-15A-8. Exemption of certain emergency projects from certificate of public convenience and necessity requirements; review of certain emergency projects by Public Service Commission; and exemption for North Fork Hughes River watershed project.
(a) If the council determines a project to be an emergency and the emergency project will be funded solely with grant money for the extension of an existing certificated water facility or wastewater facility, and if the council finds in its recommendation that the construction and acquisition of the emergency project will have no effect on the public utility's customer rates and will have no significant effect on its operational costs as a result of the project cost, then the emergency project is exempt from the requirement to obtain a certificate of public convenience and necessity under section eleven, article two, chapter twenty-four of this code. If the public utility is a public service district, it is exempt from the approval of the Public Service Commission required under section twenty-five, article thirteen-a, chapter sixteen of this code.
(b) Any public utility, and any other entity that will operate as a public utility, must obtain a certificate of public convenience and necessity pursuant to section eleven, article two, chapter twenty-four of this code for any emergency project that is not exempt under subsection (a) of this section. The Public Service Commission shall render its final decision on any application for a certificate within one hundred twenty days of the filing of the application: Provided, That the thirty-day prefiling requirement is not required. If the project sponsor is a public service district, then the project will be exempted from the approval requirements of section twenty-five, article thirteen-a, chapter sixteen of this code.
(c) Projects that are not emergency projects are subject to the requirements of section eleven, article two, chapter twenty-four of this code to the extent they would be otherwise.
(d) The North Fork Hughes River watershed project, proposed to enhance economic growth and development through tourism as provided in subsection (l), section two of this article and to include a water facility project as defined in subsection (n), section two of this article, is hereby specifically exempted from any requirement imposed by this article, except that the provisions of subsection (a) of this section are specifically made applicable to the project. The project is hereby specifically authorized and the public land corporation shall have and may exercise the power of eminent domain and all authority otherwise prescribed by law to acquire necessary land and rights-of-way, to include approximately four hundred seventy-eight acres, in connection with the project. Funding for the project shall be provided by the federal government from the Appalachian regional commission through the United States soil conservation service. Upon completion of the project, the property acquired shall be transferred to the state park system. The commissioner of the Division of Tourism and parks or the successor to the commissioner's powers and duties is directed to expand the boundaries of North Bend state park to include the project area and to operate the expanded park property, including improved recreational facilities, from funds appropriated for that purpose.
§31-15A-9. Infrastructure fund; 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; West Virginia Infrastructure Lottery Revenue Debt Service Fund; use of funds for projects.
(a) The Water Development Authority shall create and establish a special revolving fund of moneys made available by appropriation, grant, contribution or loan to be known as the West Virginia Infrastructure Fund. This fund shall be governed, administered and accounted for by the directors, officers and managerial staff of the Water Development Authority as a special purpose account separate and distinct from any other moneys, funds or funds owned and managed by the Water Development Authority. The infrastructure fund shall consist of sub-accounts, as deemed necessary by the council or the Water Development Authority, for the deposit of: (1) Infrastructure revenues; (2) any appropriations, grants, gifts, contributions, loan proceeds, or other revenues received by the infrastructure fund from any source, public or private; (3) amounts received as payments on any loans made by the Water Development Authority to pay for the cost of a project or infrastructure project; (4) insurance proceeds payable to the Water Development Authority or the infrastructure fund in connection with any infrastructure project or project; (5) all income earned on moneys held in the infrastructure fund; (6) all funds deposited in accordance with §31-15B-4 of this code; and (7) all proceeds derived from the sale of bonds issued pursuant to §31-15B-1 et seq. of this code.
Any money collected pursuant to this section shall be paid into the West Virginia infrastructure fund by the state agent or entity charged with the collection of the same, credited to the infrastructure fund, and used only for purposes set forth in this article or §31-15B-1 et seq. of this code.
Amounts in the infrastructure fund shall be segregated and administered by the Water Development Authority separate and apart from its other assets and programs. Amounts in the infrastructure fund may not be transferred to any other fund or account or used, other than indirectly, for the purposes of any other program of the Water Development Authority, except that the Water Development Authority may use funds in the infrastructure fund to reimburse itself for any administrative costs incurred by it and approved by the council in connection with any loan, loan guarantee, grant or other funding assistance made by the Water Development Authority pursuant to this article.
(b) Notwithstanding any provision of this code to the contrary, amounts in the infrastructure fund shall be deposited by the Water Development Authority in one or more banking institutions: Provided, That any moneys so deposited shall be deposited in a banking institution located in this state. The banking institution shall be selected by the Water Development Authority by competitive bid. Pending the disbursement of any money from the infrastructure fund as authorized under this section, the Water Development Authority shall invest and reinvest the moneys subject to the limitations set forth in §31-18-1 et seq. of this code.
(c) To further accomplish the purposes and intent of this article and §31-15B-1 et seq. of this code, the Water Development Authority may pledge infrastructure revenues and from time to time establish one or more restricted accounts within the infrastructure fund for the purpose of providing funds to guarantee loans for infrastructure projects or projects: Provided, That for any fiscal year the Water Development Authority may not deposit into the restricted accounts more than 20 percent of the aggregate amount of infrastructure revenues deposited into the infrastructure fund during the fiscal year. No loan guarantee shall be made pursuant to this article unless recourse under the loan guarantee is limited solely to amounts in the restricted account or accounts. No person shall have any recourse to any restricted accounts established pursuant to this subsection other than those persons to whom the loan guarantee or guarantees have been made.
(d) Each loan, loan guarantee, grant or other assistance made or provided by the Water Development Authority shall be evidenced by a loan, loan guarantee, grant or assistance agreement between the Water Development Authority and the project sponsor to which the loan, loan guarantee, grant or assistance shall be made or provided, which agreement shall include, without limitation and to the extent applicable, the following provisions:
(1) The estimated cost of the infrastructure project or project, the amount of the loan, loan guarantee or grant or the nature of the assistance, and in the case of a loan or loan guarantee, the terms of repayment and the security therefor, if any;
(2) The specific purposes for which the loan or grant proceed shall be expended or the benefits to accrue from the loan guarantee or other assistance, and the conditions and procedure for disbursing loan or grant proceeds;
(3) The duties and obligations imposed regarding the acquisition, construction, improvement, or operation of the project or infrastructure project; and
(4) The agreement of the governmental agency to comply with all applicable federal and state laws, and all rules and regulations issued or imposed by the Water Development Authority or other state, federal, or local bodies regarding the acquisition, construction, improvement, or operation of the infrastructure project or project and granting the Water Development Authority the right to appoint a receiver for the project or infrastructure if the project sponsor should default on any terms of the agreement.
(e) Any resolution of the Water Development Authority approving loan, loan guarantee, grant, or other assistance shall include a finding and determination that the requirements of this section have been met.
(f) The interest rate on any loan to governmental, quasi-governmental, or not-for-profit project sponsors for projects made pursuant to this article shall not exceed three percent per annum. Due to the limited availability of funds available for loans for projects, it is the public policy of this state to prioritize funding needs to first meet the needs of governmental, quasi- governmental and not-for-profit project sponsors and to require that loans made to for-profit entities shall bear interest at the current market rates. Therefore, no loan may be made by the council to a for-profit entity at an interest rate which is less than the current market rate at the time of the loan agreement.
(g) The Water Development Authority shall cause an annual audit to be made by an independent certified public accountant of its books, accounts, and records, with respect to the receipts, disbursements, contracts, leases, assignments, loans, grants, and all other matters relating to the financial operation of the infrastructure fund, including the operating of any sub-account within the infrastructure fund. The person performing such audit shall furnish copies of the audit report to the Commissioner of Finance and Administration, where they shall be placed on file and made available for inspection by the general public. The person performing such audit shall also furnish copies of the audit report to the Legislature’s Joint Committee on Government and Finance.
(h) There is hereby created in the Water Development Authority a separate, special account which shall be designated and known as the West Virginia Infrastructure Lottery Revenue Debt Service Fund, into which shall be deposited annually for the fiscal year beginning July 1, 2011, and each fiscal year thereafter, the first $6 million transferred pursuant to §29-22-18d of this code and any other funds provided therefor: Provided, That such deposits and transfers are not subject to the reservations of funds or requirements for distributions of funds established by §31-15A-10 and §31-15A-11 of this code. Moneys in the West Virginia Infrastructure Lottery Revenue Debt Service Fund shall be used to pay debt service on bonds or notes issued by the Water Development Authority for watershed compliance projects as provided in §31-15A-17b, and to the extent not needed to pay debt service, for the design or construction of improvements for watershed compliance projects. Moneys in the West Virginia Infrastructure Lottery Revenue Debt Service Fund not expended at the close of the fiscal year do not lapse or revert to the General Fund but are carried forward to the next fiscal year.
(i) The Water Development Authority shall establish a separate restricted account within the infrastructure fund to be expended for the repair and improvement of failing water and wastewater systems by nonprofit public utilities from grants approved by the council and supported by recommendations from the Public Service Commission in accordance with the plan developed under §24-2H-1 et seq. of this code. The restricted account shall be known as the Distressed Utilities Account. Annually, the council may request the Water Development Authority to transfer from the uncommitted loan balances for each year a total amount not to exceed $5 million to the restricted account to fund the grants approved by the council during that fiscal year. Notwithstanding the provisions of §31-15A-10(b) of this code, the council may approve grants from this account for up to 100 percent of the cost of failing utility repairs, replacements and improvements and such grant along with other grants awarded by the council may exceed 50 percent of the total project cost: Provided, That at no time may the balance of the restricted account exceed $5 million.
§31-15A-10. Recommendations by council for expenditures of funds by loan, grant, or for engineering assistance.
(a) To further accomplish the purpose and intent of this article, the Water Development Authority shall use the moneys in the Infrastructure Fund created pursuant to §31-15A-9 of this code, upon receipt of one or more recommendations from the council pursuant to §31-15A-5 of this code, to make loans, with or without interest, loan guarantees, or grants, and to provide other assistance, financial, technical, or otherwise, to finance all or part of the costs of infrastructure projects or projects to be undertaken by a project sponsor: Provided, That any moneys disbursed from the Infrastructure Fund in the form of grants shall not exceed 25 percent of the total funds available for the funding of projects: Provided, however, That if on the first day of each month, the amount available for grants is below $1,000,000 the council may convert up to 30 percent of the funds available for loans to be used for grants, if and when needed to make an award. No loan, loan guarantee, grant, or other assistance shall be made or provided except upon a determination by the council that the loan, loan guarantee, grant, or other assistance and the manner in which it will be provided are necessary or appropriate to accomplish the purposes and intent of this article, based upon an application submitted to the council: Provided further, That no grant shall be made to a project sponsor that is not a governmental agency or a not-for-profit corporation under the provisions of Section 501(c) of the Internal Revenue Code of 1986, as amended. Applications for loans, loan guarantees, grants, or other assistance may be submitted by a project sponsor for one or more infrastructure projects on preliminary application forms prepared by the council pursuant to §31-15A-4 of this code. Any recommendation of the council approving a loan, loan guarantee, grant, or other assistance shall include a finding and determination by the council that the requirements of this section have been met. The council shall base any decisions to loan money for projects to project sponsors pursuant to this article solely on the need of the project sponsors.
(b) The council has the authority in its sole discretion to make grants to project sponsors if it finds that: (1) The level of rates for the users would otherwise be an unreasonable burden given the users’ likely ability to pay; or (2) the absence of a sufficient number of users prevents funding of the project except through grants: Provided, That no project sponsor shall receive infrastructure grant money in an amount in excess of 50 percent of the total cost of the project. Therefore, the council may consider the economic or financial conditions of the area to be served. As a condition for receipt of a grant under this subsection, the council may require, in addition to any other conditions, that the applicant pursue other state or federal grant or loan programs. Upon a recommendation by the council, the Water Development Authority shall provide the grant in accordance with the recommendation. The council shall develop criteria to be considered in making grants to project sponsors which shall require consideration of the economic or financial conditions of the area to be served and the availability of other funding sources. The council shall adopt procedural rules regarding the manner in which grants will be awarded in conformity with this section. The procedural rules shall be adopted pursuant to §29A-3-1 et seq. of this code.
(c) Notwithstanding any other provision of this article to the contrary, the council shall apply a mandatory minimum end user utility rate that must be met by the project sponsor before funding assistance may be awarded. The mandatory minimum end utility rate shall be based upon a uniform statewide percentage of the median household income in a particular geographic area and said rate shall not exceed six-tenths of one percent. Effective June 15, 2022, funding assistance shall be made from the Infrastructure Fund for loans and grants to projects, after transfers required to make the state match for the water and wastewater revolving loan programs pursuant to §22C-2-1 et seq. and §16-13C-1 et seq. of this code. When determining median household income of a geographic area of the project to be served, the council shall consider any surveys of the income of the households that will be served by the project.
(d) No loan or grant funds may be made available for a project if the project to be funded will provide subsidized services to certain users in the service area of the project.
(e) Notwithstanding any other provision of this article to the contrary, engineering studies and requirements imposed by the council for preliminary applications shall not exceed those engineering studies and requirements which are necessary for the council to determine the economic feasibility of the project. If the council determines that the engineering studies and requirements for the preapplication would impose an undue hardship on any project sponsor, the council may provide funding assistance to project sponsors to defray the expenses of the preapplication process from moneys available in the Infrastructure Fund for making loans: Provided, That the council may only provide funding assistance in an amount equal to $5,000 or 50 percent of the total preapplication cost of the project, whichever amount is greater. If the project is ultimately approved for a loan by the council, the amount of funding assistance provided to the project sponsor for the preapplication process shall be included in the total amount of the loan to be repaid by the project sponsor. If the project is not ultimately approved by the council, then the amount of funding assistance provided to the project sponsor will be considered a grant by the council and the total amount of the assistance shall be forgiven. In no event may the amount of funding assistance to defray the expenses of the preapplication process provided to all project sponsors exceed, in the aggregate, $1,300,000 annually.
(f) The council shall report to the Governor, the Speaker of the House of Delegates, and the President of the Senate during each regular and interim session of the Legislature, on its activities and decisions relating to distribution or planned distribution of grants and loans under the criteria to be developed pursuant to this article.
§31-15A-11. Reservation of funds for projects and infrastructure projects.
Eighty percent of the funds deposited in the West Virginia infrastructure fund shall be dedicated for the purpose of providing funding for the cost of projects as defined in subsection (n), section two of this article. Twenty percent of the funds deposited in the West Virginia infrastructure fund shall be dedicated for the purpose of providing funding for costs of infrastructure projects as defined in subsection (l), section two of this article. Project sponsors of infrastructure projects shall follow the application process as established by this article: Provided, That notwithstanding any provision of this article to the contrary, all applications for any infrastructure project shall be submitted to the executive director of the West Virginia Development Office for review, recommendation and approval regarding infrastructure project funding.
§31-15A-12. Additional powers of water development authority.
To accomplish the purpose and intent of this article, the water development authority is hereby empowered, in addition to all other powers granted to it under this code, upon approval of the council, to (1) enter into agreements or other transactions with any federal or state agency in connection with any infrastructure project or project; (2) receive or administer on behalf of any federal or state agency grants, subsidies or other payments to be applied to the costs of any infrastructure project or project financed, in whole or in part, or otherwise assisted by the water development authority, including, but not limited to, payments to be applied to operating costs and debt service or obligations of any project sponsor; (3) receive and accept aid or contributions from any source of money, property, labor or other things of value, to be held, used and applied only for the purposes for which such grants and contributions are made; (4) establish and amend the criteria and qualifications for making loans, loan guarantees or grants, or providing any other assistance, for any infrastructure project or project, and the terms of any loans, loan guarantee, grant or assistance agreement for any project; and (5) do all things which are necessary to further the purposes and intent of this article.
§31-15A-13. Prohibition on funds inuring to the benefit of or being distributable to water development board; transactions between the water development board and officers having certain interests in such transactions.
No part of the infrastructure fund or the West Virginia infrastructure revenue debt service fund shall inure to the benefit of or be distributable to the water development board directors or officers of the water development authority except that the water development authority is authorized and empowered to pay reasonable compensation, other than to members of the water development board, including the chairman, vice chairman, secretary-treasurer for services rendered and to make loans and exercise its other powers as previously specified in furtherance of its corporate purpose: Provided, That no loans shall be made, and no property shall be purchased or leased from, or sold, leased or otherwise disposed of, to any water development board member or officer of the water development authority.
§31-15A-14. Termination or dissolution.
Upon the termination or dissolution of the water development authority, all rights and properties of the water development authority with respect to the infrastructure fund shall pass to and be vested in the state, subject to the rights of lienholders and other creditors.
§31-15A-15. Projects not to be considered public improvements; competitive bid requirements.
(a) No project or infrastructure project acquired, constructed, maintained or financed, in whole or in part, by the water development authority shall be considered to be a "public improvement" within the meaning of the provisions of article five-a, chapter twenty-one of this code as a result of the financing.
(b) The state and its subdivisions shall, except as provided in subsection (c) of this section, solicit competitive bids and require the payment of prevailing wage rates as provided in article five-a, chapter twenty-one of this code for every project or infrastructure project funded pursuant to this article exceeding $25,000 in total cost.
Following the solicitation of the bids, the construction contract shall be awarded to the lowest qualified responsible bidder, who shall furnish a sufficient performance and payment bond: Provided, That the state and its subdivisions may reject all bids and solicit new bids on the project.
(c) This section does not:
(1) Apply to work performed on construction or repair projects not exceeding a total cost of $50,000 by regular full-time employees of the state or its subdivisions: Provided, That no more than $50,000 shall be expended on an individual project in a single location in a twelve-month period;
(2) Prevent students enrolled in vocational educational schools from being used in the construction or repair projects when such use is a part of the students' training program;
(3) Apply to emergency repairs to building components and systems: Provided, That the term "emergency repairs" means repairs that, if not made immediately, will seriously impair the use of the building components and systems or cause danger to those persons using the building components and systems; or
(4) Apply to any situation where the state or a subdivision of the state comes to an agreement with volunteers, or a volunteer group, by which the governmental body will provide construction or repair materials, architectural, engineering, technical or any other professional services and the volunteers will provide the necessary labor without charge to, or liability upon, the governmental body: Provided, That the total cost of the construction or repair projects does not exceed $50,000.
(d) The provisions of subsection (b) of this section do not apply to privately owned projects or infrastructure projects constructed on lands not owned by the state or a subdivision of the state.
§31-15A-16. Dedication of severance tax proceeds.
(a) There shall be dedicated an annual amount from the collections of the tax collected pursuant to article thirteen-a, chapter eleven of this code for the construction, extension, expansion, rehabilitation, repair and improvement of water supply and sewage treatment systems and for the acquisition, preparation, construction and improvement of sites for economic development in this state as provided in this article.
(b) Notwithstanding any other provision of this code to the contrary, beginning on July 1, 1995, the first $16 million of the tax collected pursuant to article thirteen-a, chapter eleven of this code shall be deposited to the credit of the West Virginia Infrastructure General Obligation Debt Service Fund created pursuant to section three, article fifteen-b of this chapter: Provided, That beginning on July 1, 1998, the first $24 million of the tax annually collected pursuant to article thirteen-a of this code shall be deposited to the credit of the West Virginia Infrastructure General Obligation Debt Service Fund created pursuant to section three, article fifteen-b of this chapter: Provided, however, That subject to the conditions, limitations, exclusions and constraints prescribed by subsection (c) of this section, beginning on July 1, 2013, the amount deposited under this subsection to the credit of the West Virginia Infrastructure General Obligation Debt Service Fund created pursuant to section three, article fifteen-b of this chapter shall be the first $23 million of the tax annually collected pursuant to article thirteen-a, chapter eleven of this code: Provided further, That subject to the conditions, limitations, exclusions and constraints prescribed by subsection (c) of this section, beginning on July 1, 2015, the amount deposited under this subsection to the credit of the West Virginia Infrastructure General Obligation Debt Service Fund created pursuant to section three, article fifteen-b of this chapter shall be the first $22.5 million of the tax annually collected pursuant to article thirteen-a, chapter eleven of this code: And provided further, That subject to the conditions, limitations, exclusions and constraints prescribed by subsection (c) of this section, beginning on July 1, 2016, the amount deposited under this subsection to the credit of the West Virginia Infrastructure General Obligation Debt Service Fund created pursuant to section three, article fifteen-b of this chapter shall be an amount of the tax first collected in the fiscal year pursuant to article thirteen-a, chapter eleven of this code, equal to the annual debt service necessary to pay principle, and interest and to ultimately retire bonds over their scheduled amortization life, in accordance with the provisions of article fifteen-b of this chapter. Such annual debt service amount shall be determined in accordance with a debt amortization table to be published by the Treasurer, not later than April 1, 2016, and subject to amendment, from time to time, as the Treasurer considers necessary. In no case may the amount so deposited in any fiscal year exceed $22.25 million of the tax annually collected pursuant to article thirteen-a, chapter eleven of this code.
(c) Notwithstanding any provision of subsection (b) of this section to the contrary: (1) None of the collections from the tax imposed pursuant to section six, article thirteen-a, chapter eleven of this code shall be so dedicated or deposited; and (2) the portion of the tax imposed by article thirteen-a, chapter eleven and dedicated for purposes of Medicaid and the Division of Forestry pursuant to section twenty-a of said article shall remain dedicated for the purposes set forth in said section.
(d) On or before May 1 of each year, commencing May 1, 1995, the council, by resolution, shall certify to the Treasurer and the Water Development Authority the principal and interest coverage ratio and amount for the following fiscal year on any infrastructure general obligation bonds issued pursuant to the provisions of article fifteen-b of this chapter.
§31-15A-17. Water development authority empowered to issue infrastructure revenue bonds and refunding bonds; creation of infrastructure revenue debt service fund; funding of infrastructure revenue debt service fund; requirements and manner of such issuance.
(a) To accomplish the purpose and intent of this article, the water development authority is hereby empowered at the written request of the council to issue from time to time infrastructure revenue bonds of the state in such principal amounts as the council deems necessary to make loans and loan guarantees and other forms of financial assistance to project sponsors for one or more projects or infrastructure projects: Provided, That the water development authority may not issue any such bonds, other than refunding bonds, unless the council by resolution determines that the aggregate cost of the projects or infrastructure projects expected to be constructed during any annual period exceeds (1) the projected annual infrastructure revenues for the same period, and (2) the principal and interest payments not otherwise pledged to the infrastructure revenue debt service fund that are due the water development authority on all outstanding loans previously made by the water development authority pursuant to the provisions of this article.
(b) The proceeds of infrastructure revenue bonds shall be used solely for the purpose of making loans and loan guarantees and other forms of financial assistance to sponsors of one or more projects or infrastructure projects, and shall be deposited in one or more special accounts with the trustee under the trust agreement securing such bonds and disbursed from time to time for projects or infrastructure projects in accordance with this article: Provided, That notwithstanding any provision of this code to the contrary, twenty percent of the funds deposited in the special account shall be dedicated for the purpose of providing funding for costs of infrastructure projects as defined in subsection (l), section two, of this article.
(c) The water development authority may not authorize the disbursement of any proceeds of infrastructure revenue bonds unless it has received documentation from the council pursuant to the provisions of section ten of this article.
(d) There is hereby created in the water development authority a special fund which shall be designated and known as the "West Virginia Infrastructure Revenue Debt Service Fund," into which shall be transferred solely from the loan repayments deposited in the infrastructure fund the amounts certified by the director of the water development authority as necessary to pay the principal, premium, if any, and interest on infrastructure revenue bonds and any reserve requirements, subject to the terms of any agreement with the holders of the infrastructure revenue bonds. All amounts deposited in the West Virginia infrastructure revenue debt service fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any infrastructure revenue bonds authorized by this article: Provided, That amounts on deposit in the fund may be used to establish or maintain reserves created for the purposes of securing such infrastructure revenue bonds. The pledge shall be valid and binding from the time the pledge is made, and the West Virginia infrastructure revenue debt service fund so pledged shall immediately be subject to the lien of the pledge without any physical delivery thereof or further act, and the lien of any such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the water development authority irrespective of whether the parties have notice thereof.
(e) Except as may otherwise be expressly provided in this article or by resolution of the water development authority, every issue of infrastructure revenue bonds shall be special obligations of the water development authority payable solely from amounts in the West Virginia infrastructure revenue debt service fund, and the reserves created for this purpose by the water development authority, without preference or priority among the bonds regardless of when issued, subject only to any agreements with the holders of any bonds to the contrary. All such bonds are hereby declared to be negotiable instruments.
(f) Infrastructure revenue bonds shall be authorized by resolution of the water development authority. These bonds shall bear such dates and shall mature at such times, in case of any note or renewal thereof not exceeding five years from the date of issue of the original note, and in the case of any bond not exceeding fifty years from the date of issue, as the resolution may provide. Infrastructure revenue bonds shall bear interest at a rate or rates, including variable rates, shall be taxable or tax-exempt, shall be in the denominations, shall be in registered form, shall carry the registration privileges, shall be payable in the medium and place of payment, and shall be subject to the terms of redemption as the water development authority may authorize. Infrastructure revenue bonds may be sold by the water development authority at public or private sale at the price the water development authority determines in consultation with the council. Infrastructure revenue bonds shall be executed by the chairman and the vice chairman of the water development authority, either or both of whom may use a facsimile signature. The official seal of the water development authority or a facsimile thereof shall be affixed thereto or printed thereon and attested by manual or facsimile signature by the secretary-treasurer of the water development authority. If any officer whose signature, or a facsimile of whose signature appears on any infrastructure revenue bond ceases to be such officer before delivery of such bond, such signature or facsimile is nevertheless sufficient for all purposes to the same extent as if he or she had remained in office until such delivery, and if the seal of the water development authority has been changed after a facsimile has been imprinted on such bond, the facsimile will continue to be sufficient for all purposes.
(g) Any resolution authorizing any infrastructure revenue bonds may contain provisions, subject to any agreement with bondholders or noteholders which may then exist, which agreements shall be part of the contract with the holder thereof, with respect to the pledge of or other use and disposition of amounts in the infrastructure revenue debt service fund; the setting aside of reserve funds; the disposition of any assets of the water development authority; limitations on the purpose to which the proceeds of sale of bonds may be applied; the authorization of notes issued in anticipation of the issuance of bonds; an agreement of the water development authority to do all things necessary for the authorization, issuance and sale of such bonds in such amounts as may be necessary for the timely retirement of such notes; limitations on the issuance of additional bonds; the terms upon which additional bonds may be issued and secured; the refunding of outstanding bonds and the renewal of outstanding notes; the procedures, if any, by which the terms of any contract with bondholders or noteholders may be amended or abrogated; the amount of bonds the holders of which must consent thereto and the manner in which such consent may be given; and any other matter which in any way affects the security for or protection of the bonds.
(h) In the event that the sum of all reserves pledged to the payment of the bonds is less than the minimum reserve requirements established in any resolution or resolutions authorizing the issuance of the bonds, the chairman or the director of the water development authority shall certify, on or before December 1, of each year, the amount of such deficiency to the Governor of the state for inclusion, if the Governor shall so elect, of the amount of such deficiency in the budget to be submitted to the next session of the Legislature for appropriation to the water development authority to be pledged for payment of such bonds: Provided, That the Legislature shall not be required to make any appropriations so requested, and the amount of such deficiencies shall not constitute a debt or liability of the state.
(i) Neither the officers or board members of the water development authority, nor any person executing the infrastructure revenue bonds, shall be liable personally on the bonds or be subject to any personal liability or accountability by reason of the issuance thereof.
§31-15A-17a. Infrastructure revenue bonds payable from A. James Manchin Fund.
Notwithstanding any other provision of this code to the contrary, the Water Development Authority may issue, in accordance with the provisions of section seventeen of this article, infrastructure revenue bonds payable from the A. James Manchin Fund created by section nine, article fifteen-a, chapter twenty-two of this code and such other sources as may be legally pledged for such purposes other than the West Virginia Infrastructure Revenue Debt Service Fund created by section seventeen of this article.
§31-15A-17b. Infrastructure lottery revenue bonds for watershed compliance projects.
(a)(1) The Chesapeake Bay has been identified as an impaired water body due to excessive nutrients entering the bay from various sources in six states, including wastewater facilities in West Virginia. To restore the Chesapeake Bay, the states have agreed to reduce their respective nutrient contributions to the Chesapeake Bay.
(2) The Greenbrier River Watershed in southeastern West Virginia which encompasses approximately 1,646 square miles, the majority of which lies within Pocahontas, Greenbrier, Monroe, and Summers counties, has been identified as an impaired water body due to excessive levels of fecal coliform and phosphorus entering the watershed from various sources, including wastewater facilities in West Virginia. To restore the Greenbrier River Watershed, the state agrees to reduce the fecal coliform and phosphorus contributions to the Greenbrier River Watershed.
(b) Notwithstanding any other provision of this code to the contrary, the Water Development Authority may issue, in accordance with the provisions of §31-15A-17 of this code, infrastructure lottery revenue bonds payable from the West Virginia Infrastructure Lottery Revenue Debt Service Fund created by §31-15A-9 of this code and such other sources as may be legally pledged for such purposes other than the West Virginia Infrastructure Revenue Debt Service Fund created by §31-15A-17 of this code.
(c) The council shall direct the Water Development Authority to issue bonds in one or more series when it has approved Chesapeake Bay watershed compliance projects and Greenbrier River watershed compliance projects with an authorized permitted flow of 400,000 gallons per day or more. The proceeds of the bonds shall be used solely to pay costs of issuance, fund a debt service reserve account, capitalize interest, pay for security instruments necessary to market the bonds, and to make grants to governmental instrumentalities of the state for the construction of approved Chesapeake Bay watershed compliance projects and Greenbrier River watershed compliance projects. To the extent funds are available in the West Virginia Infrastructure Lottery Revenue Debt Service Fund that are not needed for debt service, the council may direct the Water Development Authority to make grants to project sponsors for the design or construction of approved Chesapeake Bay watershed compliance projects and Greenbrier River watershed compliance projects: Provided, That the council shall direct the Water Development Authority to provide from moneys in the Lottery Revenue Debt Service Fund not needed to pay debt service in fiscal year 2013, a grant of $6 million to a Chesapeake Bay watershed compliance project which opened bids on December 28, 2011, and further provided that such Chesapeake Bay watershed compliance project shall receive no further grant funding under this section after receipt of the $6 million grant.
(d) No later than June 30, 2012, each publicly owned facility with an authorized permitted flow of 400,000 gallons per day or more that is subject to meeting Chesapeake Bay compliance standards or Greenbrier River watershed compliance standards shall submit to the council a 10-year projected capital funding plan for Chesapeake Bay watershed compliance projects or Greenbrier River watershed compliance projects, as the case may be, including a general project description, cost estimate, and estimated or actual project start date and project completion date, if any. The council shall timely review the submitted capital funding plans and forward approved plans to the Water Development Authority for further processing and implementation pursuant to this article. If the council finds a plan to be incomplete, inadequate, or otherwise problematic, it shall return the plan to the applicant with comment on the plan shortcomings. The applicant may then resubmit to council an amended capital funding plan for further consideration pursuant to the terms of this subsection.
(e) Upon approval, each proposed Chesapeake Bay watershed compliance project or Greenbrier River watershed compliance project, or portion of a larger project, which portion is dedicated to compliance with nutrient standards, or fecal coliform and phosphorus standards, established for the protection and restoration of the Chesapeake Bay or the Greenbrier River watershed, as the case may be, shall be eligible for grant funding by funds generated by the infrastructure lottery revenue bonds described in subsection (b) of this section. At the request of the applicant, the remaining percentage of project funding not otherwise funded by grant under the provisions of this article may be reviewed as a standard project funding application.
(f) Eligible projects that have obtained project financing prior to December 31, 2012, may apply to the council for funding under the provisions of this section. These applications shall be processed and considered as all other eligible projects, and a grant funding awarded shall, to the extent allowed by law, be dedicated to prepay all or a portion of debt previously incurred by governmental instrumentalities of the state for required Chesapeake Bay nutrient removal projects or Greenbrier River watershed fecal coliform and phosphorus removal projects, subject to the bond covenants and contractual obligations of the borrowing governmental entity. However, any private portion of funding provided by agreement between a political subdivision and one or more private entities, either by direct capital investment or debt service obligation, shall not be eligible for grant funding under the provisions of this article.
§31-15A-18. Trustee for holders of infrastructure revenue bonds; contents of trust agreement.
(a) Any infrastructure revenue bonds issued by the water development authority under this article shall be secured by a trust agreement between the water development authority and a corporate trustee, which trustee may be any trust company or banking institution having the powers of a trust company within this state.
(b) Any trust agreement may pledge or assign the infrastructure revenue debt service fund. Any trust agreement or any resolution providing for the issuance of such bonds may contain such provisions for protecting and enforcing the rights and remedies of the bondholders or noteholders as are reasonable and proper and not in violation of law, including the provisions contained in section seventeen of this article, and covenants setting forth the duties of the water development authority in respect to the payment of the principal of and interest, charges and fees on loans made to, or bond purchases from, governmental agencies from the proceeds of the bonds, and the custody, safeguarding and application of all moneys. Any banking institution or trust company incorporated under the laws of this state which may act as depository of the proceeds of bonds or of the infrastructure debt service fund shall furnish such indemnifying bonds or pledge securities as are required by the water development authority. The trust agreement may set forth the rights and remedies of the bondholders and noteholders and of the trustee and may restrict individual rights of action by bondholders and noteholders as customarily provided in trust agreements or trust indentures securing similar bonds and notes. The trust agreement may contain such other provisions as the water development authority deems reasonable and proper for the security of the bondholders or noteholders. All expenses incurred in carrying out the provisions of any such trust agreement may be treated as part of the cost of the construction, renovation, repair, improvement or acquisition of a project or infrastructure project.
§31-15A-19. Legal remedies of infrastructure revenue bondholders or noteholders and trustees.
Any holder of infrastructure revenue bonds issued pursuant to this article and the trustee under any trust agreement, except to the extent the rights given by this article may be restricted by the applicable resolution or trust agreement, may by civil action, mandamus or other proceedings protect and enforce any rights granted under the laws of this state or granted under this article, by the trust agreement or by the resolution in the issuance of the bonds, and may enforce and compel the performance of all duties required by this article, pursuant to the trust agreement or resolution, to be performed by the water development authority or any officer thereof.
§31-15A-20. Infrastructure revenue bonds lawful investments.
All infrastructure revenue bonds issued pursuant to this article shall be lawful investments for banking institutions, societies for savings, building and loan associations, savings and loan associations, deposit guarantee associations, trust companies, and insurance companies, including domestic for life and domestic not for life insurance companies.
§31-15A-21. Purchase and cancellation of infrastructure revenue bonds.
(a) The water development authority, subject to such agreements with noteholders or bondholders as may then exist, shall have the power, from any funds available therefor, to purchase or redeem infrastructure revenue bonds of the water development authority.
(b) If the infrastructure revenue bonds are then redeemable, the price of the purchase shall not exceed the redemption price then applicable, plus accrued interest to the next interest payment date thereon. If the infrastructure revenue bonds are not then redeemable, the price of the purchase shall not exceed the redemption price applicable on the first date after the purchase upon which the bonds become subject to redemption, plus accrued interest to such date. Upon purchase or redemption, the bonds shall be canceled.
§31-15A-22. Refunding revenue bonds.
Any infrastructure revenue bonds issued pursuant to the provisions of this article and at any time outstanding may at any time and from time to time be refunded by the water development authority by the issuance of its refunding revenue bonds in an amount it deems necessary to refund the principal of the bonds to be refunded, together with any unpaid interest thereon, to provide additional funds for the water development authority to accomplish the purpose of this article, and to pay any premiums and commissions necessary to be paid in connection therewith. Any refunding may be effected whether the infrastructure revenue bonds to be refunded shall have then matured or shall thereafter mature: Provided, That the holders of any infrastructure revenue bonds so to be refunded shall not be compelled without their consent to surrender their infrastructure revenue bonds for payment or exchange prior to the date on which they are payable or, if they are called for redemption, prior to the date on which they are by their terms subject to redemption. Any refunding revenue bonds issued pursuant to this article shall be payable from the West Virginia infrastructure revenue debt service fund, and shall be subject to the provisions contained in section seventeen of this article, and shall be secured in accordance with the provisions of sections seventeen and eighteen of this article.
§31-15A-23. Infrastructure revenue bonds not debt of state, county, municipality or any political subdivision.
Infrastructure revenue bonds issued pursuant to the provisions of this article shall not constitute a debt or a pledge of the faith and credit or taxing power of this state or of any county, municipality or any other political subdivision of this state. The holders or owners thereof shall have no right to have taxes levied by the Legislature or the taxing authority of any county, municipality or any other political subdivision of this state for the payment of the principal thereof or interest thereon. The bonds shall be payable solely from the revenues and funds pledged for their payment as authorized by this article. All such bonds shall contain on the face thereof a statement to the effect that the bonds, as to both principal and interest, are not debts of the state or any county, municipality or political subdivision thereof, but are payable solely from revenues and funds pledged for their payment.
§31-15A-24. Infrastructure revenue bonds exempt from taxation.
The exercise of the powers granted to the water development authority by this article will be in all respects for the benefit of the people of the state, for the improvement of their health, safety, convenience and welfare and for the enhancement of their residential, agricultural, recreational, economic, commercial and industrial opportunities and is for a public purpose. As the construction, acquisition, repair or renovation of projects or infrastructure projects will constitute the performance of essential governmental functions, the water development authority shall not be required to pay any taxes or assessments upon any project or upon any property acquired or used by the water development authority or upon the income therefrom. The infrastructure revenue bonds and all interest and income thereon shall be exempt from all taxation by this state, or any county, municipality, political subdivision or agency thereof, except estate taxes.
§31-15B-1. Definitions.
For purposes of this article and article fifteen-a of this chapter:
(a) "Council" means the West Virginia infrastructure and jobs development council created in section three, article fifteen-a of this chapter;
(b) "Infrastructure amendment" means the amendment to the Constitution of this state entitled "infrastructure amendment" as approved by referendum in November, 1994;
(c) "Infrastructure general obligation bond" means any bond or bonds issued by the state pursuant to section two of this article;
(d) "Water development authority" means the West Virginia water development authority established under article one, chapter twenty-two-c of this code, or any successor to all or any substantial part of its powers and duties.
§31-15B-2. Infrastructure general obligation bonds; amount; when may issue.
Bonds of the State of West Virginia, under authority of the infrastructure improvement amendment of 1994, of the par value not to exceed in the aggregate $300 million, are hereby authorized to be issued and sold solely for the construction, extension, expansion, rehabilitation, repair and improvement of water supply and sewage treatment systems and for the acquisition, preparation, construction and improvement of sites for economic development as provided for by the Constitution and the provisions of this article.
These bonds may be issued by the Governor upon resolution by the infrastructure council and certification to the Governor. The bonds shall bear such date and mature at such time, bear interest at such rate not to exceed eight percent per annum, be in such amounts, be in such denominations, be in such registered form, carry such registration privileges, be due and payable at such time and place and in such amounts, and subject to such terms of redemption as such resolution may provide: Provided, That in no event may the amount of bonds outstanding exceed an amount for which $24 million would not be sufficient to provide annual service on the total amount of debt outstanding.
Both the principal and interest of the bonds shall be payable in the lawful money of the United States of America and the bonds and the interest thereon shall be exempt from taxation by the State of West Virginia, or by any county, district or municipality thereof, which fact shall appear on the face of the bonds as part of the contract with the holder of the bond.
The bonds shall be executed on behalf of the State of West Virginia, by the manual or facsimile signature of the treasurer thereof, under the great seal of the state or a facsimile thereof, and countersigned by the manual or facsimile signature of the Auditor of the state.
§31-15B-3. Creation of debt service fund; disbursements to pay debt service on infrastructure general obligation bonds.
There is hereby created a special account in the State Treasury, which shall be designated and known as the "West Virginia Infrastructure General Obligation Debt Service Fund", into which shall be deposited amounts pursuant to the provisions of section sixteen, article fifteen-a of this chapter, as well as any amounts appropriated by the Legislature.
§31-15B-4. Infrastructure general obligation debt service fund; sources used to pay bonds and interest; investment of remainder.
All money from any and all appropriations made by the state, all moneys transferred pursuant to the provisions of section sixteen, article fifteen-a of this chapter and all moneys from any other source whatsoever which is made liable by law for the payment of the principal of such bonds or the interest thereon shall be deposited into the infrastructure general obligation debt service fund. Moneys shall be kept by the treasurer in a separate account, under the designation aforesaid, and all moneys belonging to the infrastructure general obligation debt service fund shall be deposited in the State Treasury to the credit thereof.
This fund shall be applied by the treasurer to the payment of the principal and interest on such bonds as shall become due as herein provided. Any funds remaining after certification of the amount necessary for the payment of principal and interest as provided by section sixteen, article fifteen-a and expenses authorized pursuant to section thirteen of this article shall be deposited to the credit of the infrastructure fund.
§31-15B-5. Covenants of state.
The state of West Virginia covenants and agrees with the holders of the bonds issued pursuant hereto as follows: (1) That such bonds shall constitute a direct and general obligation of the State of West Virginia; (2) that the full faith and credit of the state is hereby pledged to secure the payment of the principal and interest of such bonds; (3) that an annual state tax shall be collected in an amount sufficient to pay as it may accrue the interest on such bonds and the principal thereof; and (4) that such tax shall be levied in any year only to the extent that the moneys transferred to the infrastructure general obligation debt service fund as provided in section sixteen, article fifteen-a of this chapter which are irrevocably set aside and appropriated for and applied to the payment of the interest on and principal of any bond becoming due and payable in such year are insufficient therefor.
§31-15B-6. Sale by Governor; minimum price.
The Governor shall sell the bonds herein authorized at such time or times as the council, by resolution, may determine necessary to provide funds for purposes set forth in this article and article fifteen-a of this chapter. Sales shall be at not less than par and accrued interest.
The bonds must be offered for competitive bids from recognized financial investment institutions before the bonds may be sold: Provided, That the bid process is not subject to the provisions of article three-a, chapter five-a of this code. Any and all of the bids may be rejected. If the bonds are not sold pursuant to the competitive bid process, the bonds may, within sixty days after the date the bids are received, be sold at private sale: Provided, however, That no private sale shall be made at a price less than the highest bid received.
§31-15B-7. Prohibition on funds inuring to the benefit of or being distributable to directors or officers; transactions between the council and West Virginia water development authority and directors or officers having certain interests in such transactions.
No part of the infrastructure fund shall inure to the benefit of or be distributable to the commissioners of the Public Service Commission, the council, or the West Virginia water development authority's directors or officers. The council may approve and the water development authority make loans and exercise other powers as previously specified in furtherance of their corporate purpose: Provided, That no loans shall be made, nor shall any property be purchased or leased from, or sold, leased or otherwise disposed of, to any commissioner, director or officer of the council, the Public Service Commission or the West Virginia water development authority.
§31-15B-8. Infrastructure bonds lawful investments.
All infrastructure bonds issued pursuant to this article shall be lawful investments for banking institutions, societies for savings, building and loan associations, savings and loan associations, deposit guarantee associations, trust companies, insurance companies, including domestic for life and domestic not for life insurance companies.
§31-15B-9. Refunding bonds.
Any infrastructure general obligation bonds which are outstanding may at any time be refunded by the issuance of refunding bonds in an amount deemed necessary to refund the principal of the bonds to be refunded, together with any unpaid interest thereon; to accomplish the purpose of this article and article fifteen-a of this chapter; and to pay any premiums and commissions necessary to be paid in connection therewith. Any refunding may be effected whether the infrastructure general obligation bonds to be refunded shall have then matured or shall thereafter mature. Any refunding bonds issued pursuant to this article shall be payable from the infrastructure general obligation bond debt service fund, and shall be subject to the provisions contained in section eleven, article fifteen-a of this chapter and shall be secured in accordance with the provisions of this article.
§31-15B-10. Termination or dissolution.
Upon the termination or dissolution of the West Virginia water development authority, all rights and properties of the West Virginia water development authority with respect to the infrastructure fund shall pass to and be vested in the state, subject to the rights of bondholders, lienholders and other creditors.
§31-15B-11. Treasurer to determine financial advisor.
The treasurer shall select a competent person or firm to serve as financial advisor for the issuance and sale of general obligation bonds issued pursuant to this article.
§31-15B-12. Governor to determine bond counsel.
The Governor shall select a competent person or firm to serve as bond counsel who shall be responsible for the issuance of a final approving opinion regarding the legality of the sale of general obligation bonds issued pursuant to this article. Notwithstanding the provisions of article three, chapter five of this code, bond counsel may represent the council in court, render advice to the council and provide other legal services as may be requested by the council regarding any bond issuance pursuant to this article and all other matter relating to the bond issue.
§31-15B-13. Approval and payment of all necessary expenses.
All necessary expenses, including legal expenses, incurred in the issuance of any general obligation bonds pursuant to this article shall be paid out of the infrastructure general obligation debt service fund. The amount of any expenses incurred shall be certified to the water development authority.
§31-15C-1
Repealed
Acts, 2017 Reg. Sess., Ch. 22.
§31-15C-2
Repealed
Acts, 2017 Reg. Sess., Ch. 22.
§31-15C-3
Repealed
Acts, 2017 Reg. Sess., Ch. 22.
§31-15C-4
Repealed
Acts, 2017 Reg. Sess., Ch. 22.
§31-15C-5
Repealed
Acts, 2017 Reg. Sess., Ch. 22.
§31-15C-6
Repealed
Acts, 2017 Reg. Sess., Ch. 22.
§31-15C-7
Repealed
Acts, 2017 Reg. Sess., Ch. 22.
§31-15C-8
Repealed
Acts, 2017 Reg. Sess., Ch. 22.
§31-15C-9
Repealed
Acts, 2017 Reg. Sess., Ch. 22.
§31-15C-10.
Repealed.
Acts, 2015 Reg. Sess., Ch. 41.
§31-15C-11.
Repealed.
Acts, 2015 Reg. Sess., Ch. 41.
§31-15C-12
Repealed
Acts, 2017 Reg. Sess., Ch. 22.
§31-15C-13
Repealed
Acts, 2017 Reg. Sess., Ch. 22.
§31-15C-14.
Repealed.
Acts, 2015 Reg. Sess., Ch. 41.
§31-16-1.
Repealed.
Acts, 2015 Reg. Sess., Ch. 53.
§31-16-2.
Repealed.
Acts, 2015 Reg. Sess., Ch. 53.
§31-16-3.
Repealed.
Acts, 2015 Reg. Sess., Ch. 53.
§31-16-4.
Repealed.
Acts, 2015 Reg. Sess., Ch. 53.
§31-16-5.
Repealed.
Acts, 2010 Reg. Sess., Ch. 32.
§31-17-1. Definitions and general provisions.
As used in this article:
(a) "Additional charges" means every type of charge arising out of the making or acceptance of a primary or subordinate mortgage loan, except finance charges, including, but not limited to, official fees and taxes, reasonable closing costs and certain documentary charges and insurance premiums and other charges which definition is to be read in conjunction with and permitted by section one hundred nine, article three, chapter forty-six-a of this code;
(b) "Affiliated" means persons under the same ownership or management control. As to corporations, limited liability companies or partnerships, where common owners manage or control a majority of the stock, membership interests or general partnership interests of one or more such corporations, limited liability companies or partnerships, those persons are considered affiliated. In addition, persons under the ownership or management control of the members of an immediate family shall be considered affiliated. For purposes of this section, "immediate family" means mother, stepmother, father, stepfather, sister, stepsister, brother, stepbrother, spouse, child and grandchildren;
(c) "Amount financed" means the total of the following items to the extent that payment is deferred:
(1) The cash price of the goods, services or interest in land, less the amount of any down payment, whether made in cash or in property traded in;
(2) The amount actually paid or to be paid by the seller pursuant to an agreement with the buyer to discharge a security interest in or a lien on property traded in; and
(3) If not included in the cash price:
(A) Any applicable sales, use, privilege, excise or documentary stamp taxes;
(B) Amounts actually paid or to be paid by the seller for registration, certificate of title or license fees; and
(C) Additional charges permitted by this article;
(d) "Applicant" means a person who has applied for a lender or broker license;
(e) "Broker" means any person acting in the regular course of business who, for a fee or commission or other consideration, negotiates or arranges, or who offers to negotiate or arrange, or originates or assigns a primary or subordinate mortgage loan between a lender and a borrower. A person is considered to be acting in the regular course of business if he or she negotiates or arranges, or offers to negotiate or arrange, or originates, processes or assigns any primary or subordinate mortgage loans in any one calendar year; or if he or she seeks to charge a borrower or receive from a borrower money or other valuable consideration in any primary or subordinate mortgage transaction before completing performance of all broker services that he or she has agreed to perform for the borrower;
(f) "Brokerage fee" means the fee or commission or other consideration charged by a broker or loan originator for the services described in subdivision (e) of this section;
(g) "Commissioner" means the Commissioner of Financial Institutions of this state;
(h) "Finance charge" means the sum of all interest and similar charges payable directly or indirectly by the debtor imposed or collected by the lender incident to the extension of credit as coextensive with the definition of "loan finance charge" set forth in section one hundred two, article one, chapter forty-six-a of this code;
(i) "Lender" means any person who makes or offers to make or accepts or offers to accept or purchases or services any primary or subordinate mortgage loan in the regular course of business. A person is considered to be acting in the regular course of business if he or she makes or accepts, or offers to make or accept, any primary or subordinate mortgage loans in any one calendar year.
"Lender" does not include any person who does not currently have and has never held a residential mortgage lender license in this or in any other state and who makes no more than three primary or subordinate mortgage loans in any calendar year to purchasers of any dwelling owned by that person: Provided, That the person is required to report within thirty days of the date of the loan any such mortgage loan to the Division of Financial Institutions on a form available from the division upon request. Failure to timely report as required by this subsection may result in imposition by the commissioner of a civil administrative penalty of up to $250;
(j) "Licensee" means any person duly licensed by the commissioner under the provisions of this article or article seventeen-a of this chapter as a lender, broker or mortgage loan originator;
(k) "Nationwide Mortgage Licensing System and Registry" means a mortgage licensing system developed and maintained by the Conference of State Bank Supervisors and the American Association of Residential Mortgage Regulators for the licensing and registration of licensed mortgage brokers and lenders licensed under this article and mortgage loan originators licensed under article seventeen-a of this chapter;
(l) "Person" means an individual, partnership, association, trust, corporation or any other legal entity, or any combination thereof;
(m) "Primary mortgage loan" means any loan primarily for personal, family or household use that is secured by a mortgage, deed of trust or other equivalent consensual security interest on a dwelling as defined in Section 103(w) of the Truth in Lending Act or residential real estate upon which is constructed or intended to be constructed a dwelling;
(n) "Servicing" or "servicing a residential mortgage loan" means through any medium or mode of communication the collection or remittance for, or the right or obligation to collect or remit for another lender, note owner or noteholder, payments of principal, interest, including sales finance charges in a consumer credit sale, and escrow items as insurance and taxes for property subject to a residential mortgage loan; and
(o) "Subordinate mortgage loan" means any loan primarily for personal, family or household use that is secured by a mortgage, deed of trust or other equivalent consensual security interest on a dwelling as defined in Section 103(w) of the Truth in Lending Act or residential real estate upon which is constructed or intended to be constructed a dwelling and is subject to the lien of one or more prior recorded mortgages or deeds of trust.
§31-17-2. License required for lender and broker originator; exemptions.
(a) A person may not engage in this state in the business of lender or broker unless and until he or she first obtains a license to do so from the commissioner, which license remains unexpired, unsuspended and unrevoked, and no foreign corporation may engage in business in this state unless it is registered with the Secretary of State to transact business in this state.
(b) All mortgage loan originators, as that term is defined by section two, article seventeen-a of this chapter, shall obtain a mortgage loan originator license pursuant to said article.
(c) Brokerage fees, additional charges and finance charges imposed by licensed mortgage brokers, lenders and loan originators are exempt from the tax imposed by article fifteen, chapter eleven of this code beginning on January 1, 2004.
(d) The provisions of this article do not apply to loans made by the following:
(1) Federally insured depository institutions;
(2) Regulated consumer lender licensees;
(3) Insurance companies;
(4) Any agency or instrumentality of this state, federal, county or municipal government or on behalf of the agency or instrumentality;
(5) By a nonprofit community development organization making mortgage loans to promote home ownership or improvements for the disadvantaged which loans are subject to federal, state, county or municipal government supervision and oversight; or
(6) Habitat for Humanity International, Inc., and its affiliates providing low-income housing within this state. Loans made subject to this exemption may be assigned, transferred, sold or otherwise securitized to any person and shall remain exempt from the provisions of this article, except as to reporting requirements in the discretion of the commissioner where the person is a licensee under this article. Nothing herein shall prohibit a broker licensed under this article from acting as broker of an exempt loan and receiving compensation as permitted under the provisions of this article.
(e) The provisions of this article do not apply to loans brokered by a federally insured depository institution.
(f) A person or entity designated in subsection (d) of this section may take assignments of a primary or subordinate mortgage loan from a licensed lender and the assignments of said loans that they themselves could have lawfully made as exempt from the provisions of this article under this section do not make that person or entity subject to the licensing, bonding, reporting or other provisions of this article except as the defense or claim would be preserved pursuant to section one hundred two, article two, chapter forty-six-a of this code.
(g) The placement or sale for securitization of a primary or subordinate mortgage loan into a secondary market by a licensee may not subject the warehouser or final securitization holder or trustee to the provisions of this article: Provided, That the warehouser, final securitization holder or trustee under an arrangement is either a licensee or person or entity entitled to make exempt loans of that type under this section, or the loan is held with right of recourse to a licensee.
§31-17-3. Supervision by Commissioner of Banking; rules and regulations; personnel; participation in the Nationwide Mortgage Licensing System and Registry.
(a) It shall be the duty of the commissioner to enforce the provisions of this article and, to implement and make effective such provisions, he or she is hereby authorized and empowered to promulgate reasonable rules in accordance with the provisions of article three, chapter twenty-nine-a of this code and to employ such personnel as may be necessary.
(b) The commissioner may participate in the Nationwide Mortgage Licensing System and Registry and permit such system to process applications for mortgage lender and mortgage broker licenses in this state and receive and maintain records related to such licenses that are allowed or required to be maintained by the commissioner. The commissioner is authorized to establish relationships or contracts with the Nationwide Mortgage Licensing System and Registry or other entities designated by the Nationwide Mortgage Licensing System and Registry to collect and maintain records and process transaction fees or other fees related to licensees subject to this article. The Nationwide Mortgage Licensing System and Registry shall transfer electronically all fees payable to the Division of Banking directly to the credit of the commissioner's special revenue account with the state Treasurer.
(c) Mortgage lenders and brokers licensed pursuant to this article shall submit renewals for calendar year 2010 on or before October 1, 2009, in accordance with the amendments to this article and on a form prescribed by the commissioner. Beginning January 2, 2010, licensees shall transition to the Nationwide Mortgage Licensing System and Registry according to the terms established by that system.
§31-17-4. Applications for licenses; requirements; bonds; fees; renewals; waivers and reductions; per loan fee.
(a) In connection with an application for licensing as a mortgage lender or mortgage broker, the applicant shall, at a minimum, furnish to the Nationwide Mortgage Licensing System and Registry information concerning the applicant's identity, including:
(1) Fingerprints for submission to the Federal Bureau of Investigation and any governmental agency or entity authorized to receive such information for a state, national and international criminal history background check; and
(2) Personal history and experience in a form prescribed by the Nationwide Mortgage Licensing System and Registry and the commissioner, including the submission of authorization for the Nationwide Mortgage Licensing System and Registry and the commissioner to obtain:
(A) An independent credit report obtained from a consumer reporting agency described in Section 603(p) of the Fair Credit Reporting Act; and
(B) Information related to any administrative, civil or criminal findings by any governmental jurisdiction.
(b) In order to reduce the points of contact which the Federal Bureau of Investigation may have to maintain for purposes of this article, the commissioner may use the Nationwide Mortgage Licensing System and Registry or its designated vendor as a channeling agent for requesting information from and distributing information to the Department of Justice or any governmental agency.
(c) In order to reduce the points of contact which the commissioner may have to maintain, for purposes of this article, the commissioner may use the Nationwide Mortgage Licensing System and Registry as a channeling agent for requesting and distributing information to and from any source so directed by the commissioner.
(d) Application for a lender's or broker's license shall each year be submitted under oath, in the form prescribed by the commissioner, and shall contain the full name and address of the applicant and, if the applicant is a partnership, limited liability company or association, of every member thereof, and, if a corporation, of each officer, director and owner of ten percent or more of the capital stock thereof and further information as the commissioner may reasonably require. Background and credit checks shall be conducted in accordance with this section for any officer, director or owner, directly or indirectly, of ten percent or more of the capital stock of a corporation or any member of a limited liability or partnership with, directly or indirectly, a ten percent or greater ownership interest. Any application shall also disclose the location at which the business of lender or broker is to be conducted.
(e) At the time of making application for a lender's license, the applicant therefor shall:
(1) If a foreign corporation, submit a certificate from the Secretary of State certifying that the applicant is registered with the Secretary of State to transact business in this state;
(2) Submit proof that he or she has available for the operation of the business at the location specified in the application net worth of at least $250,000;
(3) File with the commissioner a bond in favor of the state for the benefit of consumers or for a claim by the commissioner for an unpaid civil administrative penalty or an unpaid examination invoice in the amount of $100,000 for licensees with West Virginia annual loan originations of $0 to $3 million, $150,000 for West Virginia annual loan originations greater than $3 million and up to $10 million, and $250,000 for West Virginia annual loan originations over $10 million in a form and with conditions as the commissioner may prescribe and executed by a surety company authorized to do business in this state: Provided, That lender licensees who service West Virginia mortgage loans shall file with the commissioner a bond under the same conditions listed above in the amount of $200,000;
(4) Pay to the commissioner a license fee of $1,250 plus the actual cost of fingerprint processing and the processing fees assessed by the Nationwide Mortgage Licensing System and Registry. If the commissioner shall determine that an investigation outside this state is required to ascertain facts or information relative to the applicant or information set forth in the application, the applicant may be required to advance sufficient funds to pay the estimated cost of the investigation. An itemized statement of the actual cost of the investigation outside this state shall be furnished to the applicant by the commissioner and the applicant shall pay or shall have returned to him or her, as the case may be, the difference between his or her payment in advance of the estimated cost and the actual cost of the investigation; and
(5) Submit a full and complete disclosure of any litigation or unresolved complaint filed by a governmental authority or class action lawsuit on behalf of consumers relating to the operation of the license applicant.
(f) At the time of making application for a broker's license, the applicant therefor shall:
(1) If a foreign corporation, submit a certificate from the Secretary of State certifying that the applicant is registered with the Secretary of State to transact business in this state;
(2) Submit proof that he or she has available for the operation of the business at the location specified in the application net worth of at least $10,000;
(3) File with the commissioner a bond in favor of the state for the benefit of consumers or for a claim by the commissioner for an unpaid civil administrative penalty or an unpaid examination invoice in the amount of $50,000 for licensees with West Virginia loan originations of $0 to $3 million, $75,000 for West Virginia loan originations greater than $3 million and up to $10 million, and $100,000 for West Virginia loan originations over $10 million in a form and with conditions as the commissioner may prescribe and executed by a surety company authorized to do business in this state: Provided, That the bond must be in the amount of $150,000 before a broker may participate in a table-funded residential mortgage loan;
(4) Pay to the commissioner a license fee of $350 plus the actual cost of fingerprint processing and the processing fees assessed by the Nationwide Mortgage Licensing System and Registry; and
(5) Submit a full and complete disclosure of any litigation or unresolved complaint filed by a governmental authority or class action lawsuit on behalf of consumers relating to the operation of the license applicant.
(g) The aggregate liability of the surety on any bond given pursuant to the provisions of this section shall in no event exceed the amount of the bond.
(h) Nonresident lenders and brokers licensed under this article by their acceptance of the license acknowledge that they are subject to the jurisdiction of the courts of West Virginia and the service of process pursuant to section one hundred thirty-seven, article two, chapter forty-six-a of this code and section thirty-three, article three, chapter fifty-six of this code.
(i) The commissioner may elect to reduce or waive the application fees, bond amounts and net worth requirements imposed by this section for bona fide nonprofit corporations or other bona fide nonprofit business entities, including community housing development organizations, whose residential mortgage lending or brokering activities provide housing primarily to households or persons below the HUD-established median income for their area of residence. Any waiver of fees or other costs under this paragraph shall not be construed as a waiver of the duty to comply with all other provisions of this article.
(j) Every broker and lender licensee shall pay a fee of $5 for each residential mortgage loan originated, made or brokered in a calendar year. This fee shall be paid annually for the benefit of the Division of Banking and remitted with the report required pursuant to subsection (b), section eleven of this article for loans made, brokered or originated during the previous calendar year. If a licensee ceases operation, it shall remit any fees due since the last reporting period when it relinquishes its license.
(k) If a claim for a consumer restitution is pending on a bond required pursuant to this section when the commissioner makes a claim for a civil administrative penalty or an unpaid examination invoice, the consumer claim shall be resolved before any payments may be made for an unpaid penalty or examination invoice.
§31-17-5. Refusal or issuance of license.
(a) Upon an applicant's full compliance with the provisions of section four of this article, the commissioner shall investigate the relevant facts with regard to the applicant and his or her application for a lender's or broker's license, as the case may be. Upon the basis of the application and all other information before him or her, the commissioner shall make and enter an order denying the application and refusing the license sought if the commissioner finds that:
(1) The applicant does not have available the net worth required by the provisions of section four of this article, if applicable;
(2) The financial responsibility, character, reputation, experience or general fitness of the applicant, including its officers, directors, principals and employees, reasonably warrants the belief that the business will not be operated lawfully and properly in accordance with the provisions of this article; and
(3) The applicant has done any act or has failed or refused to perform any duty or obligation for which the license sought could be suspended or revoked were it then issued and outstanding.
Otherwise, the commissioner shall issue to the applicant a lender's or broker's license which shall entitle the applicant to engage in the business of lender or broker, as the case may be, during the period, unless sooner suspended or revoked, for which the license is issued.
(b) Every application for a lender's or broker's license shall be passed upon and the license issued or refused within sixty days after the applicant therefor has fully complied with the provisions of this article. Under no circumstances whatever may a person or licensee act as a broker and lender in the same transaction. Whenever an application for a lender's or broker's license is denied and the license sought is refused, which refusal has become final, the commissioner shall retain all fees to cover administrative costs of processing the broker or lender application.
§31-17-6. Minimum net worth to be maintained; bond to be kept in full force and effect; foreign corporation to remain qualified to do business in this state.
At all times, a lender and broker licensee shall: (1) Have available the net worth required by the provisions of section four of this article; (2) keep the bond required by said section in full force and effect; and (3) if the licensee be a foreign corporation, remain qualified to transact business in this state unless otherwise exempt.
§31-17-7. License not transferable or assignable; license may not be franchised; renewal of license.
(a) A license may not be transferable or assignable. A licensee may not offer a franchise under that license to another person. The commissioner may allow licensees to have branch offices without requiring additional licenses provided the location of all branch offices is registered with the Division of Banking by the licensee. Whenever a licensee changes his or her place of business to a location other than that set forth in his or her license and branch registration, he or she shall give written notice thirty days prior to such change to the commissioner and pay a relocation fee of $100 for each office relocation.
(b) Every lender's or broker's license shall, unless sooner suspended or revoked, expire on December 31 of each year and any license may be renewed each year in the same manner, for the same license fee or fees specified above and upon the same basis as an original license is issued in accordance with the provisions of this article. All applications for the renewal of licenses shall be filed with the Nationwide Mortgage Licensing System and Registry according to the renewal schedule published for the system, but no later than sixty days before the expiration thereof.
(c) Any change in control of a licensee whereby equitable interest of fifty percent or more is transferred to an outside party, a new application must be submitted according to this article.
§31-17-8. Maximum interest rate on subordinate loans; prepayment rebate; maximum points, fees and charges; overriding of federal limitations; limitations on lien documents; prohibitions on primary and subordinate mortgage loans; civil remedy.
(a) The maximum rate of finance charges on or in connection with any subordinate mortgage loan may not exceed 18 percent per year on the unpaid balance of the amount financed.
(b) A borrower has the right to prepay his or her debt, in whole or in part, at any time and shall receive a rebate for any unearned finance charge, exclusive of any points, investigation fees and loan origination fees, which rebate shall be computed under the actuarial method.
(c) Except as provided by §46A-3-109 of this code and by subsection (g) of this section, no additional charges may be made, nor may any charge permitted by this section be assessed unless the loan is made: Provided, That if the loan is not made, the licensee is not required to refund an appraisal fee that is collected from a loan applicant by the licensee and paid to an unrelated third-party appraiser unless the fee is required to be refunded pursuant to federal law.
(d) Where loan origination fees, investigation fees or points have been charged by the licensee, the charges may not be imposed again in any refinancing of that loan or any additional loan on that property made within 24 months thereof, unless the new loan has a reasonable, tangible net benefit to the borrower considering all of the circumstances, including the terms of both the new and the refinanced loans, the cost of the new loan and the borrower’s circumstances. The licensee shall document this benefit in writing on a form prescribed by the commissioner and maintain the documentation in the loan file. To the extent this subdivision overrides the preemption on limiting points and other charges on first lien residential mortgage loans contained in the United States Depository Institutions Deregulation and Monetary Control Act of 1980, 12 U. S. C. §1735f-7a, the state law limitations contained in this section apply.
(e) Notwithstanding other provisions of this section, a delinquent charge or late charge may be charged on any installment made 10 or more days after the regularly scheduled due date in accordance with §46A-3-112 or §46A-3-113 of this code, whichever is applicable. The charge may be made only once on any one installment during the term of the primary or subordinate mortgage loan.
(f) Hazard insurance may be required by the lender. The charges for any insurance may not exceed the standard rate approved by the Insurance Commissioner for the insurance. Proof of all insurance in connection with primary and subordinate mortgage loans subject to this article shall be furnished to the borrower within 30 days from and after the date of application therefor by the borrower.
(g) Except for fees for services provided by unrelated third parties for appraisals, inspections, title searches and credit reports, no application fee is allowed whether or not the mortgage loan is consummated; however, the borrower may be required to reimburse the licensee for actual expenses incurred by the licensee in a purchase money transaction after acceptance and approval of a mortgage loan proposal made in accordance with the provisions of this article which is not consummated because of:
(1) The borrower’s willful failure to close the loan; or
(2) The borrower’s false or fraudulent representation of a material fact which prevents closing of the loan as proposed.
(h) A licensee may not make, offer to make, accept or offer to accept any primary or subordinate mortgage loan except on the terms and conditions authorized in this article.
(i) A licensee may not induce or permit any borrower to become obligated to the licensee under this article, directly or contingently, or both, under more than one subordinate mortgage loan at the same time for the purpose or with the result of obtaining greater charges than would otherwise be permitted under the provisions of this article.
(j) An instrument evidencing or securing a primary or subordinate mortgage loan may not contain:
(1) A power of attorney to confess judgment;
(2) A provision whereby the borrower waives any rights accruing to him or her under the provisions of this article;
(3) A requirement that more than one installment be payable in any one installment period, or that the amount of any installment be greater or less than that of any other installment, except for the final installment which may be in a lesser amount or no more than $5 greater than any previous payment installment, or unless the loan is structured as a revolving line of credit having no set final payment date: Provided, That this prohibition does not apply to any mortgage modification or refinancing loan made in participation with and in compliance with the federal Making Homes Affordable program, or any other mortgage modification or refinancing loan eligible under any government sponsored enterprise requirements or funded through any federal or state program or litigation settlement;
(4) An assignment of or order for the payment of any salary, wages, commissions or other compensation for services, or any part thereof, earned or to be earned;
(5) A requirement for compulsory arbitration which does not comply with federal law; or
(6) Blank or blanks to be filled in after the consummation of the loan. A borrower must be given a copy of every signed document executed by the borrower at the time of closing.
(k) A licensee may not charge a borrower or receive from a borrower money or other valuable consideration as compensation before completing performance of all services the licensee has agreed to perform for the borrower unless the licensee also registers and complies with all requirements set forth for credit service organizations in §46A-6C-1 et seq. of this code, including all additional bonding requirements as may be established therein.
(l) A licensee may not make or broker revolving loans secured by a primary or subordinate mortgage lien for the retail purchase of consumer goods and services by use of a lender credit card.
(m) In making any primary or subordinate mortgage loan, a licensee may not, and a primary or subordinate mortgage lending transaction may not, contain terms which:
(1) Collect a fee not disclosed to the borrower; collect any attorney fee at closing in excess of the fee that has been or will be remitted to the attorney; collect a fee for a product or service where the product or service is not actually provided; misrepresent the amount charged by or paid to a third party for a product or service; or collect duplicate fee or points to act as both broker and lender for the same mortgage loan, however, fees and points may be divided between the broker and the lender as they agree, but may not exceed the total charges otherwise permitted under this article: Provided, That the fact of any fee, point or compensation is disclosed to the borrower consistent with the solicitation representation made to the borrower;
(2) Compensate, whether directly or indirectly, coerce or intimidate an appraiser for the purpose of influencing the independent judgment of the appraiser with respect to the value of real estate that is to be covered by a deed of trust or is being offered as security according to an application for a primary or subordinate mortgage loan;
(3) Make or assist in making any primary or subordinate mortgage loan with the intent that the loan will not be repaid and that the lender will obtain title to the property through foreclosure: Provided, That this subdivision may not apply to reverse mortgages obtained under §47-24-1 et seq. of this code;
(4) Require the borrower to pay, in addition to any periodic interest, combined fees, compensation or points of any kind to the lender and broker to arrange, originate, evaluate, maintain or service a loan secured by any encumbrance on residential property that exceed, in the aggregate, six percent of the loan amount financed, including any yield spread premium paid by the lender to the broker: Provided, That reasonable closing costs, as defined in §46A-1-102 of this code, payable to unrelated third parties may not be included within this limitation: Provided, however, That no yield spread premium is permitted for any loan for which the annual percentage rate exceeds 18 percent per year on the unpaid balance of the amount financed: Provided further, That if no yield spread premium is charged, the aggregate of fees, compensation or points can be no greater than five percent of the loan amount financed. The financing of the fees and points are permissible and, where included as part of the finance charge, does not constitute charging interest on interest. To the extent that this section overrides the preemption on limiting points and other charges on first lien residential mortgage loans contained in the United States Depository Institutions Deregulation and Monetary Control Act of 1980, 12 U. S. C. §1735f-7a, the state law limitations contained in this section apply;
(5) Secure a primary or subordinate mortgage loan by any security interest in personal property unless the personal property is affixed to the residential dwelling or real estate;
(6) Allow or require a primary or subordinate mortgage loan to be accelerated because of a decrease in the market value of the residential dwelling that is securing the loan;
(7) Require terms of repayment which do not result in continuous monthly reduction of the original principal amount of the loan: Provided, That the provisions of this subdivision do not apply to reverse mortgage loans obtained under §47-24-1 et seq. of this code, home equity, open-end lines of credit, bridge loans used in connection with the purchase or construction of a new residential dwelling or commercial loans for multiple residential purchases;
(8) Secure a primary or subordinate mortgage loan in a principal amount that, when added to the aggregate total of the outstanding principal balances of all other primary or subordinate mortgage loans secured by the same property, exceeds the fair market value of the property on the date that the latest mortgage loan is made. For purposes of this paragraph, a broker or lender may rely upon a bona fide written appraisal of the property made by an independent third-party appraiser, duly licensed or certified by the West Virginia Real Estate Appraiser Licensing and Certification Board and prepared in compliance with the uniform standards of professional appraisal practice: Provided, That this prohibition does not apply to any mortgage modification or refinancing loan made in participation with and in compliance with the federal Making Homes Affordable program, or any other mortgage modification or refinancing loan eligible under any government sponsored enterprise requirements or funded through any federal or state program or litigation settlement;
(9) Advise or recommend that the consumer not make timely payments on an existing loan preceding loan closure of a refinancing transaction; or
(10) Knowingly violate any provision of any other applicable state or federal law regulating primary or subordinate mortgage loans, including, without limitation, §46A-1-1 et seq. of this code.
§31-17-9. Disclosure; closing statements; other records required; record-keeping requirements.
(a) Any licensee or person making on his or her own behalf, or as agent, broker or in other representative capacity on behalf of any other person, a primary or subordinate mortgage loan shall at the time of the closing furnish to the borrower a complete and itemized closing statement which shall show in detail:
(1) The amount and date of the note or primary and subordinate mortgage loan contract and the date of maturity;
(2) The nature of the security;
(3) The finance charge rate per annum and the itemized amount of finance charges and additional charges;
(4) The principal and total of payments;
(5) Disposition of the principal;
(6) A description of the payment schedule;
(7) The terms on which additional advances, if any, will be made;
(8) The charge to be imposed for past-due installments;
(9) A description and the cost of insurance required by the lender or purchased by the borrower in connection with the primary or subordinate mortgage loan;
(10) The name and address of the borrower and of the lender; and
(11) That the borrower may prepay the primary or subordinate mortgage loan, in whole or in part, on any installment date and that the borrower will receive a rebate in full for any unearned finance charge.
Such detailed closing statement shall be signed by the broker, lender or closing representative and a completed and signed copy thereof is retained by the broker or lender and made available at all reasonable times to the borrower, the borrower's successor in interest to the residential property or the authorized agent of the borrower or the borrower's successor, until the time as the indebtedness is satisfied in full. Providing a HUD 1 or HUD 1A settlement statement that provides the disclosures required by this subsection and the residential mortgage disclosures required by federal law is considered to meet the requirements of this subsection.
The commissioner may, from time to time, by rules prescribe additional information to be included in a closing statement.
(b) Upon written request from the borrower, the holder of a primary or subordinate mortgage loan instrument shall deliver to the borrower, within ten business days from and after receipt of the written request, a statement of the borrower's account as required by subsection (2), section one hundred fourteen, article two, chapter forty-six-a of this code.
(c) Upon satisfaction of a primary or subordinate mortgage loan obligation in full, the holder of the instrument evidencing or securing the obligation shall comply with the requirements of section one, article twelve, chapter thirty-eight of this code in the prompt release of the lien which had secured the primary or subordinate mortgage loan obligation.
(d) Upon written request or authorization from the borrower, the holder of a primary or subordinate mortgage loan instrument shall send or otherwise provide to the borrower or his or her designee, within three business days after receipt of the written request or authorization, a payoff statement of the borrower's account. Except as provided by this subsection, no charge may be made for providing the payoff statement. Charges for the actual expenses associated with using a third-party courier delivery or expedited mail delivery service may be assessed when this type of delivery is requested and authorized by the borrower following disclosure to the borrower of its cost. The payoff information is provided by mail, telephone, courier, facsimile or other transmission as requested by the borrower or his or her designee.
(e) A licensee shall keep and maintain for thirty-six months after the date of final entry the business records regarding residential mortgage loans applied for, brokered, originated or serviced in the course of its business.
§31-17-10. Advertising requirements.
It shall be unlawful and an unfair trade practice for any person to cause to be placed before the public in this state, directly or indirectly, any false, misleading or deceptive advertising matter pertaining to primary or subordinate mortgage loans or the availability thereof: Provided, That this section shall not apply to the owner, publisher, operator or employees of any publication or radio or television station which disseminates such advertising matter without actual knowledge of the false or misleading character thereof.
§31-17-11. Records and reports; examination of records; analysis.
(a) Every lender and broker licensee shall maintain at his or her place of business in this state, if any, or if he or she has no place of business in this state, at his or her principal place of business outside this state, such books, accounts and records relating to all transactions within this article as are necessary to enable the commissioner to enforce the provisions of this article. All the books, accounts and records shall be preserved, exhibited to the commissioner and kept available as provided herein for the reasonable period of time as the commissioner may by rules require. The commissioner is hereby authorized to prescribe by rules the minimum information to be shown in the books, accounts and records.
(b) Each licensee shall file a report through the Nationwide Mortgage Licensing System and Registry under oath or affirmation concerning his or her business and operations in this state for the defined reporting period established by the Nationwide Mortgage Licensing System and Registry and on a date established by the Nationwide Mortgage Licensing System and Registry. The commissioner may direct that the reports required by this subsection and any other reports, data or information deemed necessary by the commissioner be filed directly with the Division of Financial Institutions on a date to be determined by the commissioner. The reports, data and information filed pursuant to this subsection are not public records and may not be open to public inspection.
(c) The commissioner may, at his or her discretion, make or cause to be made an examination of the books, accounts and records of every lender or broker licensee pertaining to primary and subordinate mortgage loans made in this state under the provisions of this article, for the purpose of determining whether each lender and broker licensee is complying with the provisions hereof and for the purpose of verifying each lender or broker licensee's annual report. If the examination is made outside this state, the licensee shall pay the cost thereof in like manner as applicants are required to pay the cost of investigations outside this state.
(d) The commissioner shall publish annually a list of the licenses issued under this chapter and shall direct consumers to public information available through the Nationwide Mortgage Licensing System and Registry.
(e) The commissioner may enter into cooperative and information-sharing agreements with regulators in other states or with federal authorities to discharge his or her responsibilities under this article.
§31-17-12. Grounds for suspension or revocation of license; suspension and revocation generally; reinstatement or new license; penalties and fines for violation of this article.
(a) The commissioner may suspend or revoke any broker or lender license issued hereunder if he or she finds that the licensee or any owner, director, officer, member, partner, stockholder, employee or agent of the licensee:
(1) Has knowingly violated any provision of this article or any order, decision or rule of the commissioner lawfully made pursuant to the authority of this article;
(2) Has knowingly made any material misstatement in the application for the license;
(3) Does not have available the net worth required by the provisions of section four of this article, if applicable;
(4) Has failed or refused to keep the bond required by this article in full force and effect, if applicable;
(5) In the case of a foreign corporation, does not remain qualified to do business in this state;
(6) Has committed any fraud or engaged in any dishonest activities with respect to any mortgage loan business in this state or failed to disclose any of the material particulars of any mortgage loan transaction in this state to anyone entitled to the information; or
(7) Has otherwise demonstrated bad faith, dishonesty or any other quality indicating that the business of the licensee in this state has not been or will not be conducted honestly or fairly within the purpose of this article. It shall be a demonstration of bad faith and an unfair or deceptive act or practice to engage in a pattern of making loans where the consumer has insufficient sources of income to timely repay the debt and the lender had the primary intent to acquire the property upon default rather than to derive profit from the loan. This section may not limit any right the consumer may have to bring an action for a violation of section one hundred four, article six, chapter forty-six-a of this code in an individual case.
The commissioner may also suspend or revoke the license of a licensee if he or she finds the existence of any ground upon which the license could have been refused or any ground which would be cause for refusing a license to the licensee were he or she then applying for the same. The commissioner may also suspend or revoke the license of a licensee pursuant to his or her authority under section thirteen, article two, chapter thirty-one-a of this code.
(b) The suspension or revocation of the license of any licensee does not impair or affect the obligation of any preexisting lawful mortgage loan between the licensee and any obligor.
(c) The commissioner may reinstate a suspended license, or issue a new license to a licensee whose license has been revoked, if the grounds upon which any license was suspended or revoked have been eliminated or corrected and the commissioner is satisfied that the grounds are not likely to recur.
(d) In addition to the authority conferred under this section, the commissioner may impose a fine or penalty not exceeding$2,000 upon any lender or broker required to be licensed under this article who the commissioner determines has violated any of the provisions of this article. For the purposes of this section, each separate violation is subject to the fine or penalty provided in this section. Each day excluding Sundays and holidays, that an unlicensed person engages in the business or holds himself or herself out to the general public as a mortgage lender or broker is a separate violation.
§31-17-13. Notice of refusal, or suspension or revocation, of license; relinquishing license.
(a) Whenever the commissioner refuses to issue a license, or suspends or revokes a license, he shall make and enter an order to that effect and shall cause a copy of the order to be served in person or by certified mail, return receipt requested, or in any other manner in which process in a civil action in this state may be served, on the applicant or licensee, as the case may be. The commissioner shall also submit a copy of any such order for publication by the Nationwide Mortgage Licensing System and Registry.
(b) It shall be the duty of the licensee to comply with any such order: (i) Immediately if the license was suspended either following a hearing or for failure to keep the bond required by the provisions of section four of this article in full force and effect; or otherwise (ii) following expiration of the period provided in section fourteen of this article in which such licensee, if not previously provided the opportunity to a hearing on the matter, may demand a hearing before the commissioner without such demand having been timely made.
§31-17-14. Hearing before commissioner; provisions pertaining to hearing.
(a) Any applicant or licensee, as the case may be, adversely affected by an order made and entered by the commissioner in accordance with the provisions of section thirteen of this article, if not previously provided the opportunity to a hearing on the matter, may in writing demand a hearing before the commissioner. The commissioner may appoint a hearing examiner to conduct the hearing and prepare a recommended decision. The written demand for a hearing must be filed with the commissioner within thirty days after the date upon which the applicant or licensee was served with a copy of the order. The timely filing of a written demand for hearing shall stay or suspend execution of the order in question, pending a final determination, except for an order suspending a license for failure of the licensee to maintain the bond required by section four of this article in full force and effect. If a written demand is timely filed as aforesaid, the aggrieved party is entitled to a hearing as a matter of right.
(b) All of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply to and govern the hearing and the administrative procedures in connection with and following such hearing, with like effect as if the provisions of the article were set forth in extenso in this subsection.
(c) For the purpose of conducting any such hearing hereunder, the commissioner or appointed hearing examiner shall have the power and authority to issue subpoenas and subpoenas duces tecum in accordance with the provisions of section one, article five, chapter twenty-nine-a of this code. All subpoenas and subpoenas duces tecum are issued and served in the manner, within the time and for the fees and shall be enforced, as specified in the section, and all of the section provisions dealing with subpoenas and subpoenas duces tecum shall apply to subpoenas and subpoenas duces tecum issued for the purpose of a hearing hereunder.
(d) Any hearing shall be held within twenty days after the date upon which the commissioner received the timely written demand therefor unless there is a postponement or continuance. The commissioner or hearing examiner may postpone or continue any hearing on his or her own motion or for good cause shown upon the application of the aggrieved party. At any hearing, the aggrieved party may represent himself or herself or be represented by any attorney-at-law admitted to practice before any circuit court of this state.
(e) After the hearing and consideration of all of the testimony, evidence and record in the case, the commissioner shall make and enter an order affirming, modifying or vacating his or her earlier order, or shall make and enter an order as is considered appropriate, meet and proper. If the commissioner appoints a hearing examiner then the commissioner must issue his or her final order within fifteen days of receiving the recommended decision of the hearing examiner. The order shall be accompanied by findings of fact and conclusions of law as specified in section three, article five, chapter twenty-nine-a of this code and a copy of the order and accompanying findings and conclusions shall be served upon the aggrieved party and his or her attorney of record, if any, in person or by certified mail, return receipt requested, or in any other manner in which process in a civil action in this state may be served. The order of the commissioner is final unless vacated or modified on judicial review thereof in accordance with the provisions of section fifteen of this article.
§31-17-15. Judicial review.
(a) Any person adversely affected by a final order made and entered by the commissioner after hearing held in accordance with the provisions of section fourteen of this article is entitled to judicial review thereof. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code shall apply to and govern such review with like effect as if the provisions of said section were set forth in extenso in this section.
(b) The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.
(c) Legal counsel and services for the commissioner in all appeal proceedings in any circuit court and the Supreme Court of Appeals shall upon request be provided by the Attorney General or his assistants, all without additional compensation.
§31-17-16. Actions to enjoin violations.
(a) Whenever it appears to the commissioner that any person has been or is violating or is about to violate any provision of this article, any rules of the commissioner or any final order of the commissioner, the commissioner may apply in the name of the state, to the circuit court of the county in which the violation or violations, or any part thereof, has occurred, is occurring or is about to occur, or the judge thereof in vacation, for an injunction against such person and any other persons who have been, are or are about to be, involved in, or in any way participating in, any practices, acts or omissions, so in violation, enjoining such person or persons from any such violation or violations. Such application may be made and prosecuted to conclusion whether or not any such violation or violations have resulted or shall result in prosecution or conviction under the provisions of section eighteen of this article.
(b) Upon application by the commissioner as aforesaid, the circuit courts of this state may by mandatory or prohibitory injunction compel compliance with the provisions of this article, any rules of the commissioner and all final orders of the commissioner. The court may issue a temporary injunction in any case pending a decision on the merits of any application filed.
(c) The judgment of the circuit court upon any application permitted by the provisions of this section shall be final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals. Any such appeal shall be sought in the manner and within the time provided by law for appeals from circuit courts in other civil cases.
(d) The commissioner shall upon request be represented in all such proceedings by the Attorney General or his assistants, all without additional compensation.
§31-17-17. Loans made in violation of this article void; agreements to waive article void.
(a) If any primary or subordinate mortgage loan is made in willful violation of the provisions of this article, except as a result of a bona fide error, such loan may be canceled by a court of competent jurisdiction: Provided, That it may not be construed to have been a willful violation of the provisions of this article if the violation is due to a violation of subdivision (3), subsection (j) or subdivision (8), subsection (m), section eight of this article for a mortgage modification or refinancing loan made after May 1, 2009, in participation with and in compliance with the federal Making Homes Affordable program, or any other mortgage modification or refinancing loan eligible under any government sponsored enterprise requirements or funded through any federal or state program or litigation settlement.
(b) Any agreement whereby the borrower waives the benefits of this article shall be deemed to be against public policy and void.
(c) Any residential mortgage loan transaction in violation of this article shall be subject to an action, which may be brought in a circuit court having jurisdiction, by the borrower seeking damages, reasonable attorneys fees and costs: Provided, That this action may not be brought if the violation is due to a violation of subdivision (3), subsection (j) or subdivision (8), subsection (m), section eight of this article for a mortgage modification or refinancing loan made after May 1, 2009, in participation with and in compliance with the federal Making Homes Affordable program, or any other mortgage modification or refinancing loan eligible under any government sponsored enterprise requirements or funded through any federal or state program or litigation settlement.
(d) A licensee who, when acting in good faith in a lending transaction, inadvertently and without intention, violates any provision of this article or fails to comply with any provision of this article, will be excused from such violation if within thirty days of becoming aware of such violation, or being notified of such violation, and prior to the institution of any civil action or criminal proceeding against the licensee, the licensee notifies the borrower of the violation, makes full restitution of any overcharges, and makes all other adjustments as are necessary to make the lending transaction comply with this article.
§31-17-18. Violations and penalties.
(a) Any person, or any member, officer, director, agent or employee of such person, who violates or participates in the violation of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500, or imprisoned in a county or regional jail for not more than six months, or both fined and imprisoned, at the discretion of the court.
(b) The penalties and remedies embodied in this article are not exclusive, but are cumulative with other applicable provisions of this code, including, but not limited to, the consumer protection laws in chapter forty-six-a of this code.
§31-17-19. Severability.
If any provision of this article or its application to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other provisions or applications of the article, and to this end the provisions of this article are hereby declared to be severable.
§31-17-20. Effective date.
The amendments to this article enacted during the regular session of the Legislature in the year 2009 shall be effective as of July 1, 2009.
§31-17A-1. Purpose.
The activities of mortgage loan originators and the origination or offering of financing for residential real property have a direct, valuable and immediate impact upon West Virginia's consumers, West Virginia's economy, the neighborhoods and communities of West Virginia and the housing and real estate industry. The Legislature finds that accessibility to mortgage credit is vital to the state's citizens. The Legislature also finds that it is essential for the protection of the citizens of West Virginia and the stability of West Virginia's economy that reasonable standards for licensing and regulation of the business practices of mortgage loan originators be imposed. The Legislature further finds that the obligations of mortgage loan originators to consumers in connection with originating or making residential mortgage loans are such as to warrant the regulation of the mortgage lending process. The purpose of this article is to protect consumers seeking mortgage loans and to ensure that the mortgage lending industry is operating without unfair, deceptive and fraudulent practices on the part of mortgage loan originators.
§31-17A-2. Definitions.
As used in this article:
(a) “Commissioner” means the Commissioner of Financial Institutions of this state;
(b) “Depository institution” has the same meaning as in Section three of the Federal Deposit Insurance Act and includes any federally insured credit union;
(c) “Division” means the West Virginia Division of Financial Institutions;
(d) “Federal banking agencies” means the Board of Governors of the Federal Reserve System, the Comptroller of the Currency, the Director of the Office of Thrift Supervision, the National Credit Union Administration, and the Federal Deposit Insurance Corporation;
(e) “Immediate family member” means a spouse, child, sibling, parent, grandparent, or grandchild. This includes stepparents, stepchildren, stepsiblings, and adoptive relationships;
(f) “Individual” means a natural person;
(g) “Loan processor or underwriter” means an individual who performs clerical or support duties as an employee at the direction of and subject to the supervision and instruction of a person licensed or exempt from licensing under §31-17-1 et seq. of this code.
(1) For purposes of this paragraph, “clerical or support duties” may include subsequent to the receipt of an application:
(A) The receipt, collection, distribution, and analysis of information common for the processing or underwriting of a residential mortgage loan; and
(B) Communicating with a consumer to obtain the information necessary for the processing or underwriting of a loan, to the extent that such communication does not include offering or negotiating loan rates or terms, or counseling consumers about residential mortgage loan rates or terms; or
(2) An individual engaging solely in loan processor or underwriter activities shall not represent to the public, through advertising or other means of communicating or providing information, including the use of business cards, stationery, brochures, signs, rate lists, or other promotional items, that such individual can or will perform any of the activities of a mortgage loan originator;
(h) “Mortgage loan originator” means an individual who for compensation or gain or in the expectation of compensation or gain takes a residential mortgage loan application or offers or negotiates terms of a residential mortgage loan and is sponsored by a mortgage lender, broker, or regulated consumer lender licensed by the Division of Financial Institutions. “Mortgage loan originator” does not include:
(1) An individual engaged solely as a loan processor or underwriter except as otherwise provided in §31-17A-3 of this code;
(2) A person or entity who does not currently have and has never held a residential mortgage loan originator license in this or any other state and who acts as a mortgage loan originator on no more than three residential mortgage loans to purchasers of any dwelling owned by the person or entity in any calendar year: Provided, That the person or entity is required to report any such loan within 30 days of the date of the loan to the Division of Financial Institutions on a form available from the division upon request. Failure to timely report as required by this subdivision may result in imposition by the commissioner of a civil administrative penalty of up to $250;
(3) A person or entity that only performs real estate brokerage activities and is licensed or registered in accordance with West Virginia law, unless the person or entity is compensated by a lender, a mortgage broker, or other mortgage loan originator or by any agent of such lender, mortgage broker, or other mortgage loan originator;
(4) A person or entity solely involved in extensions of credit relating to timeshare plans, as that term is defined in Section 101(53D) of Title 11, United States Code; or
(5) A retailer of manufactured or modular homes or an employee of the retailer if the retailer or employee, as applicable:
(A) Does not receive compensation or gain for engaging in activities described in this subsection, that is in excess of any compensation or gain received in a comparable cash transaction;
(B) Discloses to the consumer:
(i) In writing, any corporate affiliation with any mortgage lender; and
(ii) If the retailer has a corporate affiliation with any mortgage lender, at least one unaffiliated mortgage lender;
(C) Does not directly negotiate with the consumer or mortgage lender on loan terms (including rates, fees, and other costs); and
(D) Does not represent to the public, through advertising or other means of communicating or providing information, including the use of business cards, stationery, brochures, signs, rate lists, social media, or other promotional items, that the individual can or will perform the activities described in this subsection;
(i) “Real estate brokerage activity” means any activity that involves offering or providing real estate brokerage services to the public, including:
(1) Acting as a real estate salesperson or real estate broker for a buyer, seller, lessor, or lessee of real property;
(2) Bringing together parties interested in the sale, purchase, lease, rental, or exchange of real property;
(3) Negotiating, on behalf of any party, any portion of a contract relating to the sale, purchase, lease, rental, or exchange of real property other than in connection with providing financing with respect to any such transaction;
(4) Engaging in any activity for which a person engaged in the activity is required to be registered or licensed as a real estate agent or real estate broker under any applicable law; and
(5) Offering to engage in any activity, or act in any capacity, described in paragraph (1), (2), (3), or (4) of this subdivision;
(j) “Nationwide Mortgage Licensing System and Registry” means a mortgage licensing system developed and maintained by the Conference of State Bank Supervisors and the American Association of Residential Mortgage Regulators for the licensing and registration of mortgage brokers and lenders licensed pursuant to §31-17-1 et seq. of this code and mortgage loan originators licensed pursuant to this article;
(k) “Nontraditional mortgage product” means any mortgage product other than a fixed rate mortgage;
(l) “Person” means a natural person, corporation, company, limited liability company, partnership, or association;
(m) “Registered mortgage loan originator” means any individual who:
(1) Meets the definition of mortgage loan originator and is an employee of:
(A) A depository institution;
(B) A subsidiary that is:
(i) Owned and controlled by a depository institution; and
(ii) Regulated by a federal banking agency; or
(C) An institution regulated by the Farm Credit Administration; and
(2) Is registered with, and maintains a unique identifier through, the Nationwide Mortgage Licensing System and Registry;
(n) “Residential mortgage loan” means any loan primarily for personal, family, or household use that is secured by a mortgage, deed of trust, or other equivalent consensual security interest on a dwelling as defined in Section 103(w) of the Truth in Lending Act or residential real estate upon which is constructed or intended to be constructed a dwelling;
(o) “Residential real estate” means any real property located in West Virginia, upon which is constructed or intended to be constructed a dwelling; and
(p) “Unique identifier” means a number or other identifier assigned by protocols established by the Nationwide Mortgage Licensing System and Registry.
§31-17A-3. License and registration required.
(a) An individual, unless specifically exempted under subsection (c) of this section, shall not engage in the business of a mortgage loan originator with respect to any dwelling located in this state without first obtaining and maintaining annually a license under this article. Each licensed mortgage loan originator must register with and maintain a valid unique identifier issued by the Nationwide Mortgage Licensing System and Registry. A Mortgage loan originator licensed under this article may be employed by, or under contract to provide mortgage loan originator services for, only one entity licensed or exempt from licensing under article seventeen of this chapter at any time.
(b) To facilitate an orderly transition to licensing and minimize disruption in the mortgage marketplace, the effective date for subsection (a) of this section:
(1) For all individuals other than individuals described in subdivision (2) of this subsection shall be January 31, 2010; and
(2) For all individuals licensed as mortgage loan originators before July 1, 2009, shall be January 1, 2011.
(c) The following are exempt from this article:
(1) Registered Mortgage Loan Originators, when acting for an entity described in subdivision (11), section two of this article;
(2) Any individual who offers or negotiates terms of a residential mortgage loan with or on behalf of an immediate family member of the individual;
(3) Any individual who offers or negotiates terms of a residential mortgage loan secured by a dwelling that served as the individual's residence; and
(4) A licensed attorney who negotiates the terms of a residential mortgage loan on behalf of a client as an ancillary matter to the attorney's representation of the client, unless the attorney is compensated by a lender, a mortgage broker or other mortgage loan originator or by any agent of such lender, mortgage broker or other mortgage loan originator.
(d) A loan processor or underwriter who is an independent contractor may not engage in the activities of a loan processor or underwriter unless such independent contractor loan processor or underwriter obtains and maintains a license under subsection (a) of this section. Each independent contractor loan processor or underwriter licensed as a mortgage loan originator must have and maintain a valid unique identifier issued by the Nationwide Mortgage Licensing System and Registry.
(e) To implement an orderly and efficient licensing and transition process, the commissioner may establish interim policies and procedures for licensing and acceptance of applications as follows:
(1) Mortgage loan originators employed by or under exclusive contract to licensed mortgage brokers after the effective date of this article shall submit an application on a form prescribed by the commissioner, including all necessary information, fees and authorizations for investigation as the commissioner may determine necessary, and must meet the standards for licensure set forth in this article. Any license issued under this subdivision and any license current as of the effective date of this article will expire on December 31, 2010: Provided, That notwithstanding the licensing requirements under this section, an individual acting exclusively as an employee of a servicer who is engaging in loss mitigation efforts with respect to an existing mortgage transaction serviced by his or her employer is not required to meet the education, testing, background and licensing standards of this article until July 1, 2011, to the extent that this extension of time is not denied by guideline, rule, regulation or interpretive letter issued by the United States Department of Housing and Urban Development. In the event this extension of time is denied, such individuals shall apply for a license under this section within ninety days of the denial; and
(2) Mortgage loan originators employed by or under exclusive contract to licensed mortgage lenders and regulated consumer lenders shall comply with this article and submit all applications through the Nationwide Mortgage Licensing System and Registry on or before January 31, 2010.
§31-17A-4. State license application and issuance.
(a) Applicants for a license must apply in a form as prescribed by the commissioner. Each form shall contain content as set forth by instruction or procedure of the commissioner and may be changed or updated as necessary by the commissioner in order to carry out the purposes of this article. The application must be submitted with an application fee of $200 plus the actual cost of fingerprint processing, together with any processing fee assessed by the Nationwide Mortgage Licensing System and Registry. The commissioner may elect to reduce or waive the application fees for mortgage loan originators employed by bona fide nonprofit organizations or other community housing development organizations that serve the housing needs of households or persons below the HUD-established median income for their area of residence. Any waiver of fees or other costs under this paragraph shall not be construed as a waiver of the duty to comply with all other provisions of this article.
(b) The commissioner is authorized to establish relationships or contracts with the Nationwide Mortgage Licensing System and Registry or other entities designated by the Nationwide Mortgage Licensing System and Registry to collect and maintain records and process transaction fees or other fees related to licensees or other persons subject to this article.
(c) In connection with an application for licensing as a mortgage loan originator, the applicant shall, at a minimum, furnish to the Nationwide Mortgage Licensing System and Registry information concerning the applicant’s identity, including:
(1) Fingerprints for submission to the Federal Bureau of Investigation and any governmental agency or entity authorized to receive such information for a state, national and international criminal history background check; and
(2) Personal history and experience in a form prescribed by the Nationwide Mortgage Licensing System and Registry and the commissioner, including the submission of authorization for the Nationwide Mortgage Licensing System and Registry and the commissioner to obtain:
(A) An independent credit report obtained from a consumer reporting agency described in Section 603(p) of the Fair Credit Reporting Act; and
(B) Information related to any administrative, civil or criminal findings by any governmental jurisdiction.
(d) To reduce the points of contact which the Federal Bureau of Investigation may have to maintain, the commissioner may use the Nationwide Mortgage Licensing System and Registry or its designated vendor as a channeling agent for requesting information from and distributing information to the Department of Justice or any governmental agency.
(e) To reduce the points of contact which the commissioner may have to maintain, the commissioner may use the Nationwide Mortgage Licensing System and Registry as a channeling agent for requesting and distributing information to and from any source so directed by the commissioner.
(f) Nonresident mortgage loan originators licensed under this article by their acceptance of the license acknowledge that they are subject to the jurisdiction of the courts of West Virginia and the service of process pursuant to §46A-2-137 and §56-3-33 of this code.
(g) The commissioner may grant a provisional license to a mortgage loan originator who has met all other requirements for licensing under this article but: (1) Has not passed a test regarding West Virginia mortgage laws and regulations required for licensure: Provided, That the provisionally licensed mortgage loan originator takes and passes that test within 60 days of the test becoming available; or (2) for whom the commissioner has not received the results of a criminal background check despite the good faith effort of the applicant to provide in a timely manner the information necessary to obtain a criminal background check.
§31-17A-5. Issuance of license.
(a) The commissioner may not issue a mortgage loan originator license unless the commissioner makes at a minimum the following findings:
(1) The applicant has never had a mortgage loan originator license revoked in any governmental jurisdiction, except that a subsequent formal vacation of the revocation may not be considered a revocation.
(2) The applicant has not been convicted of, or pled guilty or nolo contendere to, a felony in a domestic, foreign or military court: Provided, That any pardon of a conviction may not be a conviction for purposes of this subsection: Provided, however, That the commissioner shall apply §31-17A-5(b) and §31-17A-5(c) of this code in determining whether an applicant’s prior criminal convictions bear a rational nexus to the license being sought;
(A) During the five-year period preceding the date of the application for licensing and registration; or
(B) At any time preceding the date of application if the crime bears a rational nexus to the license being sought.
(3) The applicant has demonstrated financial responsibility, character, and general fitness such as to command the confidence of the community and to warrant a determination that the mortgage loan originator will operate honestly, fairly, and efficiently within the purposes of this article.
For purposes of this subsection a person has shown that he or she is not financially responsible when he or she has shown a disregard in the management of his or her own financial condition. The commissioner shall not use a credit score as the sole basis for license denial. A determination that an individual has not shown financial responsibility may include, but not be limited to:
(A) Current outstanding judgments, except judgments solely as a result of medical expenses;
(B) Current outstanding tax liens or other government liens and filings;
(C) Foreclosures within the past three years; and
(D) A pattern of seriously delinquent accounts within the past three years.
(4) The applicant has completed the pre-licensing education requirement described in §31-17A-6 of this code.
(5) The applicant has passed a written test that meets the test requirement described in §31-17A-7 of this code.
(6) The applicant has met the surety bond requirement as required pursuant to §31-17A-13 of this code.
(b) The commissioner may not disqualify an applicant from initial licensure because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the activity requiring licensure. In determining whether a criminal conviction bears a rational nexus to a profession or occupation, the commissioner shall consider at a minimum:
(1) The nature and seriousness of the crime for which the individual was convicted;
(2) The passage of time since the commission of the crime;
(3) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and
(4) Any evidence of rehabilitation or treatment undertaken by the individual.
(c) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, the commissioner shall permit the applicant to apply for initial licensure if:
(1) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;
(2) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and
(3) The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the commissioner.
(d) An individual with a criminal record who has not previously applied for licensure may petition the commissioner at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license. This petition shall include sufficient details about the individual’s criminal record to enable the commissioner to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction. The commissioner shall provide the determination within 60 days of receiving the petition from the applicant. The commissioner may charge a fee to recoup its costs for each petition.
§31-17A-6. Prelicensing and relicensing education of loan originators.
(a) To meet the prelicensing education requirement, a person must complete at least 24 hours of education approved in accordance with subsection (b) of this section, which shall include at least:
(1) Three hours of federal law and regulations;
(2) Three hours of ethics, which shall include instruction on fraud, consumer protection and fair lending issues;
(3) Two hours of training related to lending standards for the nontraditional mortgage product marketplace; and
(4) Four hours of training related to West Virginia mortgage and consumer laws or issues.
(b) For purposes of subsection (a) of this section, prelicensing education courses shall be reviewed and approved by the Nationwide Mortgage Licensing System and Registry or the Division based upon reasonable standards. Review and approval of a prelicensing education course shall include review and approval of the course provider.
(c) Nothing in this section precludes any prelicensing education course, as approved by the Nationwide Mortgage Licensing System and Registry or the Division, that is provided by the employer of the applicant or an entity which is affiliated with the applicant by an agency contract, or any subsidiary or affiliate of such employer or entity.
(d) Prelicensing education may be offered either in a classroom, online or by any other means approved by the Nationwide Mortgage Licensing System and Registry.
(e) The prelicensing education requirements approved by the Nationwide Mortgage Licensing System and Registry or the Division in subdivisions (1), (2) and (3) subsection (a) of this section for any state shall be accepted as credit towards completion of prelicensing education requirements in West Virginia.
(f) A person previously licensed under this article subsequent to July 1, 2009, applying to be licensed again must prove that they have completed all of the continuing education requirements for the year in which the license was last held.
§31-17A-7. Testing of loan originators.
(a) To meet the written test requirement, an individual must pass, in accordance with the standards established under this subsection, a qualified written test developed by the Nationwide Mortgage Licensing System and Registry and administered by a test provider approved by the Nationwide Mortgage Licensing System and Registry based upon reasonable standards.
(b) A written test may not be treated as a qualified written test for purposes of subsection (a) of this section unless the test adequately measures the applicant's knowledge and comprehension in appropriate subject areas, including:
(1) Ethics;
(2) Federal law and regulation pertaining to mortgage origination;
(3) State law and regulation pertaining to mortgage origination; and
(4) Federal and state law and regulation, including instruction on fraud, consumer protection, the nontraditional mortgage marketplace and fair lending issues.
(c) Nothing in this section prohibits a test provider approved by the Nationwide Mortgage Licensing System and Registry from providing a test at the location of the employer of the applicant or the location of any subsidiary or affiliate of the employer of the applicant or the location of any entity with which the applicant holds an exclusive arrangement to conduct the business of a mortgage loan originator.
(d) An individual may not be considered to have passed a qualified written test unless the individual achieves a test score of not less than seventy-five percent correct answers to questions.
(e) An individual may retake a test three consecutive times with each consecutive taking occurring at least thirty days after the preceding test. After failing three consecutive tests, an individual must wait at least six months before taking the test again.
(f) A licensed mortgage loan originator who fails to maintain a valid license for a period of five consecutive years or longer must retake the test, not taking into account any time during which the individual is a registered mortgage loan originator.
§31-17A-8. Standards for license renewal.
(a) The minimum standards for license renewal for mortgage loan originators shall include the following:
(1) The mortgage loan originator continues to meet the minimum standards for license issuance under section five of this article;
(2) The mortgage loan originator has satisfied the annual continuing education requirements described in section nine of this article; and
(3) The mortgage loan originator has paid all required fees for renewal of the license.
(b) The license of a mortgage loan originator failing to satisfy the minimum standards for license renewal shall expire. The commissioner may adopt procedures for the reinstatement of expired licenses consistent with the standards established by the Nationwide Mortgage Licensing System and Registry.
§31-17A-9. Continuing education for mortgage loan originators.
(a) To meet the annual continuing education requirements, a licensed mortgage loan originator must complete at least nine hours of education approved in accordance with subsection (b) of this section, which shall include at least:
(1) Three hours of federal law and regulations;
(2) Two hours of ethics, which shall include instruction on fraud, consumer protection and fair lending issues;
(3) Two hours of training related to lending standards for the nontraditional mortgage product marketplace; and
(4) Two hours of West Virginia law or regulations.
(b) For purposes of subsection (a) of this section, continuing education courses shall be reviewed and approved by the Nationwide Mortgage Licensing System and Registry or the Division based upon reasonable standards. Review and approval of a continuing education course shall include review and approval of the course provider.
(c) Nothing in this section precludes any education course, as approved by the Nationwide Mortgage Licensing System and Registry, that is provided by the employer of the mortgage loan originator or an entity which is affiliated with the mortgage loan originator by an agency contract, or any subsidiary or affiliate of the employer or entity.
(d) Continuing education may be offered either in a classroom, online or by any other means approved by the Nationwide Mortgage Licensing System and Registry.
(e) A licensed mortgage loan originator:
(1) Except for §31-17A-8(b) of this code and subsection (i) of this section, may only receive credit for a continuing education course in the year in which the course is taken; and
(2) May not take the same approved course in the same or successive years to meet the annual requirements for continuing education.
(f) A licensed mortgage loan originator who is an approved instructor of an approved continuing education course may receive credit for the licensed mortgage loan originator’s own annual continuing education requirement at the rate of two hours credit for every one hour taught.
(g) A person having successfully completed the education requirements approved by the Nationwide Mortgage Licensing System and Registry in subdivisions (1), (2) and (3), subsection (a) of this section for any state shall be accepted as credit towards completion of continuing education requirements in West Virginia.
(h) A licensed mortgage loan originator who subsequently becomes unlicensed must complete the continuing education requirements for the last year in which the license was held prior to issuance of a new or renewed license.
(i) A person meeting the renewal requirements of §31-17A-8(a)(1) and §31-17A-8(a)(3) of this code may make up any deficiency in continuing education as established by the commissioner.
§31-17A-10. Authority to require license.
In addition to any other duties imposed upon the commissioner by law, the commissioner shall require mortgage loan originators to be licensed and registered through the Nationwide Mortgage Licensing System and Registry. The commissioner is authorized to participate in the Nationwide Mortgage Licensing System and Registry to carry out this requirement. The commissioner may establish requirements as necessary, including, but not limited to:
(1) Background checks for:
(A) Criminal history through fingerprint or other databases;
(B) Civil or administrative records;
(C) Credit history; or
(D) Any other information as deemed necessary by the Nationwide Mortgage Licensing System and Registry.
(2) The payment of fees to apply for or renew licenses through the Nationwide Mortgage Licensing System and Registry;
(3) The setting or resetting as necessary of renewal or reporting dates;
(4) Requirements for amending or surrendering a license; and
(5) Any other activities the commissioner deems necessary for participation in the Nationwide Mortgage Licensing System and Registry.
§31-17A-11. Nationwide Mortgage Licensing System and Registry information challenge process.
The commissioner shall establish a process in accordance with the Administrative Procedures Act, provided in article five, chapter twenty-nine-a of this code, whereby mortgage loan originators may challenge information entered into the Nationwide Mortgage Licensing System and Registry by the commissioner.
§31-17A-12. Enforcement authorities, violations and penalties.
(a) To ensure the effective supervision and enforcement of this article, the commissioner may:
(1) Deny, suspend, revoke, condition or decline to renew a license issued under this article for a violation of this article or rules or order or directive entered under this article;
(2) Deny, suspend, revoke, condition or decline to renew a license if an applicant or licensee fails at any time to meet the requirements of section five or eight of this article, or withholds information or makes a material misstatement in an application for a license or renewal of a license;
(3) Order restitution against persons subject to this article for violations of this article;
(4) Impose civil administrative penalties on persons subject to this article pursuant to subsections (b), (c) and (d) of this section; and
(5) Issue orders or directives under this article as follows:
(A) Order or direct persons subject to this article to cease and desist from conducting business, including immediate temporary orders to cease and desist;
(B) Order or direct persons subject to this article to cease any harmful activities or violations of this article, including immediate temporary orders to cease and desist;
(C) Enter immediate temporary orders to cease business under a license or interim license issued pursuant to the authority granted under section three if the commissioner determines that such license was erroneously issued or the licensee is currently in violation of this article; and
(D) Order or direct such other affirmative action as the commissioner deems necessary.
(b) The commissioner may impose a civil administrative penalty on a mortgage loan originator or person subject to this article if the commissioner finds, on the record after notice and opportunity for hearing, that such mortgage loan originator or person subject to this article has violated or failed to comply with any requirement of this article or any rule prescribed by the commissioner under this article or order issued under authority of this article.
(c) The maximum amount of penalty for each act or omission described in subsection (b) of this section shall be $25,000.
(d) Each violation or failure to comply with any directive or order of the commissioner is a separate and distinct violation or failure.
(e) If the commissioner takes any enforcement action under this article, he or she shall enter an order to that effect and shall cause a copy of that order to be served in person or by certified mail, return receipt requested, or in any other manner in which process in a civil action in this state may be served, on the applicant or licensee. The commissioner shall also submit a copy of the order for publication in the Nationwide Mortgage Licensing System and Registry when that functionality of the system becomes available. An applicant or licensee adversely affected by an order may request an appeal and shall be provided a hearing as provided in section fourteen, article seventeen of this chapter.
§31-17A-13. Surety bond required.
(a) Each mortgage loan originator must be covered by a surety bond in accordance with this section in favor of the state for the benefit of consumers or for a claim by the commissioner for an unpaid civil administrative penalty or unpaid examination invoice. If the mortgage loan originator is an employee or exclusive agent of a person subject to this article, article seventeen of this chapter, or article four, chapter forty-six-a of this code, the surety bond of that person may be used in lieu of the mortgage loan originator's individual surety bond requirement. Any person not subject to licensing as a mortgage lender or broker under article seventeen, chapter thirty-one of this code or article four, chapter forty-six-a of this code that employs a mortgage loan originator licensed under this article may elect to register with the Nationwide Mortgage Licensing System and Registry and provide a surety bond in the appropriate amount for the mortgage loan originator employed.
(1) The surety bond must provide coverage for each mortgage loan originator in an amount as prescribed in subsection (b) of this section.
(2) The surety bond shall be in a form as prescribed by the commissioner.
(3) The commissioner may promulgate rules with respect to the requirements for such surety bonds as are necessary to accomplish the purposes of this article.
(b) The penal sum of the surety bond shall be maintained in an amount as required by article seventeen of this chapter for licensed mortgage lenders and brokers or article four, chapter forty-six-a of this code for regulated consumer lenders.
(c) When an action is commenced on a licensee's bond or any bond covering the activities of a licensee under this article, the commissioner may require the filing of a new bond.
(d) Immediately upon recovery upon any action on a bond covering any licensee under this article, a new bond shall be filed.
(e) The commissioner may elect to reduce or waive the bond amounts imposed by this section for mortgage loan originators employed by bona fide nonprofit corporations or other bona fide nonprofit business entities, including community housing development organizations, or any agency or instrumentality of this state, federal, county or municipal government whose residential mortgage lending or brokering activities provide housing primarily to households or persons below the HUD-established median income for their area of residence if the commissioner determines that a reduction or waiver would not violate any applicable law. Any waiver of fees or other costs under this paragraph shall not be construed as a waiver of the duty to comply with all other provisions of this article.
§31-17A-14. Confidentiality.
(a) Except as otherwise provided in Public Law 110-289, Section 1512, the requirements under any federal law or any provision of this code regarding the privacy or confidentiality of any information or material provided to the Nationwide Mortgage Licensing System and Registry, and any privilege arising under federal or state law, including the rules of any federal or state court, with respect to the information or material, shall continue to apply to the information or material after the information or material has been disclosed to the Nationwide Mortgage Licensing System and Registry. This information and material may be shared with all state and federal regulatory officials with mortgage industry oversight authority without the loss of privilege or the loss of confidentiality protections provided by federal law or any provision of this code.
(b) For these purposes, the commissioner is authorized to enter agreements or sharing arrangements with other governmental agencies, the Conference of State Bank Supervisors, the American Association of Residential Mortgage Regulators or other associations representing governmental agencies as established by rule or order of the commissioner.
(c) Information or material that is subject to a privilege or confidentiality under subsection (a) of this section may not be subject to:
(1) Disclosure under any federal or state law governing the disclosure to the public of information held by an officer or an agency of the federal government or the respective state; or
(2) Subpoena or discovery, or admission into evidence, in any private civil action or administrative process, unless with respect to any privilege held by the Nationwide Mortgage Licensing System and Registry with respect to the information or material, the person to whom the information or material pertains waives, in whole or in part, in the discretion of that person, the privilege.
(d) Any provision of this code relating to the disclosure of confidential supervisory information or any information or material described in subsection (a) of this section that is inconsistent with said subsection shall be superseded by the requirements of this section.
(e) This section does not apply with respect to the information or material relating to the employment history of, and publicly adjudicated disciplinary and enforcement actions against, mortgage loan originators that is included in the Nationwide Mortgage Licensing System and Registry for access by the public.
§31-17A-15. Investigation and examination authority.
(a) For purposes of initial licensing, license renewal, license suspension, license conditioning, license revocation or termination, or general or specific inquiry or investigation to determine compliance with this article, the commissioner may access, receive and use any books, accounts, records, files, documents, information or evidence including, but not limited to:
(1) Criminal, civil and administrative history information, including nonconviction data;
(2) Personal history and experience information including independent credit reports obtained from a consumer reporting agency described in Section 603(p) of the Fair Credit Reporting Act; and
(3) Any other documents, information or evidence the commissioner deems relevant to the inquiry or investigation regardless of the location, possession, control or custody of such documents, information or evidence.
(b) For the purposes of investigating violations or complaints arising under this article, or for the purposes of examination, the commissioner may review, investigate or examine any licensee, individual or person subject to this article and his or her employer or sponsoring company as often as necessary. The commissioner may direct, subpoena or order the attendance of and examine under oath all persons whose testimony may be required about the loans or the business or subject matter of any such examination or investigation, and may direct, subpoena or order such person to produce books, accounts, records, files and any other documents the commissioner deems relevant to the inquiry.
(c) Each licensee, individual or person subject to this article, including his or her employer or sponsoring company, must make available to the commissioner upon request the books and records relating to the operations of the licensee, individual or person subject to this article. The commissioner shall have access to the books and records and interview the officers, principals, mortgage loan originators, employees, independent contractors, agents and customers of the licensee, individual or person subject to this article concerning their business.
(d) Each licensee, individual or person subject to this article, including his or her employer or sponsoring company, shall make or compile reports or prepare other information as directed by the commissioner in order to carry out the purposes of this section, including, but not limited to:
(1) Accounting compilations;
(2) Information lists and data concerning loan transactions in a format prescribed by the commissioner; or
(3) Such other information considered necessary to carry out the purposes of this section.
(e) In making any examination or investigation authorized by this article, the commissioner may control access to any documents and records of the licensee or person under examination or investigation. The commissioner may take possession of the documents and records or place a person in exclusive charge of the documents and records in the place where they are usually kept. During the period of control, an individual or person may not remove or attempt to remove any of the documents and records except pursuant to a court order or with the consent of the commissioner. Unless the commissioner has reasonable grounds to believe the documents or records of the licensee have been, or are at risk of being, altered or destroyed for purposes of concealing a violation of this article, the licensee or owner of the documents and records shall have access to the documents or records as necessary to conduct its ordinary business affairs.
(f) In order to carry out the purposes of this section, the commissioner may:
(1) Retain attorneys, accountants or other professionals and specialists as examiners, Auditors or investigators to conduct or assist in the conduct of examinations or investigations;
(2) Enter into agreements or relationships with other government officials or regulatory associations in order to improve efficiencies and reduce regulatory burden by sharing resources, standardized or uniform methods or procedures and documents, records, information or evidence obtained under this section;
(3) Use, hire, contract or employ public or privately available analytical systems, methods or software to examine or investigate the licensee, individual or person subject to this article;
(4) Accept and rely on examination or investigation reports made by other government officials, within or without this state; or
(5) Accept audit reports made by an independent certified public accountant for the licensee, individual or person subject to this article in the course of that part of the examination covering the same general subject matter as the audit and may incorporate the audit report in the report of the examination, report of investigation or other writing of the commissioner.
(g) The authority of this section shall remain in effect whether a licensee, individual or person subject to this article acts or claims to act under any licensing or registration law of this state or claims to act without that authority.
(h) A licensee, individual or person subject to investigation or examination under this section may not knowingly withhold, abstract, remove, mutilate, destroy or secrete any books, records, computer records or other information.
§31-17A-16. Prohibited acts and practices.
It is a violation of this article for a person or individual subject to this article to:
(1) Directly or indirectly employ any scheme, device or artifice to defraud or mislead borrowers or lenders or to defraud any person.
(2) Engage in any unfair or deceptive practice toward any person.
(3) Obtain property by fraud or misrepresentation.
(4) Solicit or enter into a contract with a borrower that provides in substance that the person or individual subject to this article may earn a fee or commission through "best efforts" to obtain a loan even though no loan is actually obtained for the borrower.
(5) Solicit, advertise or enter into a contract for specific interest rates, points, or other financing terms unless the terms are actually available at the time of soliciting, advertising or contracting.
(6) Conduct any business covered by this article without holding a valid license as required under this article, or assist or aide and abet any person in the conduct of business under this article without a valid license as required under this article.
(7) Fail to make disclosures as required by this article and any other applicable state or federal law including rules and regulations thereunder.
(8) Fail to comply with this article or rules promulgated under this article, or fail to comply with any other state or federal law, including the rules and regulations thereunder, applicable to any business authorized or conducted under this article.
(9) Make, in any manner, any false or deceptive statement or representation with regard to the rates, points or other financing terms or conditions for a residential mortgage loan, or engage in bait and switch advertising.
(10) Negligently make any false statement or knowingly and willfully make any omission of material fact in connection with any information or reports filed with a governmental agency or the Nationwide Mortgage Licensing System and Registry or in connection with any investigation conducted by the commissioner or another governmental agency.
(11) Make any payment, threat or promise, directly or indirectly, to any person for the purposes of influencing the independent judgment of the person in connection with a residential mortgage loan, or make any payment threat or promise, directly or indirectly, to any appraiser of a property for the purposes of influencing the independent judgment of the appraiser with respect to the value of the property.
(12) Collect, charge, attempt to collect or charge or use or propose any agreement purporting to collect or charge any fee prohibited by this article.
(13) Cause or require a borrower to obtain property insurance coverage in an amount that exceeds the replacement cost of the improvements as established by the property insurer.
(14) Fail to truthfully account for moneys belonging to a party to a residential mortgage loan transaction.
§31-17A-17. Report to mortgage licensing system and registry.
The commissioner is required to report violations of this act, as well as enforcement actions and other relevant information to the Nationwide Mortgage Licensing System and Registry subject to the provisions of section fourteen of this article.
§31-17A-18. Unique identifier shown.
The unique identifier of any person originating a residential mortgage loan must be clearly shown on all residential mortgage loan application forms, solicitations or advertisements, including business cards or websites, and any other documents as established by rule or order of the commissioner.
§31-17A-19. Severability.
If any provision of this article or its application to any person or circumstance is held invalid, the remainder of the article or the application of the provision to other persons or circumstances is not affected.
§31-17A-20. Effective date.
The effective date of this article shall be July 1, 2009.
§31-18-1. Short title.
This article shall be known and may be cited as the "West Virginia Housing Development Fund Act."
§31-18-2. Legislative findings and purpose.
(a) The Legislature hereby finds and declares that as a result of public actions involving highways, public facilities, flood-control projects and urban renewal activities, and as a result of the spread of slum conditions and blight to formerly sound urban and rural neighborhoods, there exists in the State of West Virginia a serious shortage of sanitary, decent and safe residential housing available at low prices or rentals to persons and families of low and moderate income. This shortage is severe in certain urban areas of the state, is especially critical in the rural areas of West Virginia, and is inimical to the health, welfare and prosperity of all residents of the state and to the sound growth of West Virginia communities.
(b) The Legislature hereby finds and declares further that private enterprise and investment have not been able to produce, without assistance, the needed construction of sanitary, decent and safe residential housing at low prices or rentals which persons and families of low and moderate income can afford, to provide sufficient long-term mortgage financing for residential housing for occupancy by persons and families of low and moderate income or to achieve the urgently needed rehabilitation of much of the present low and moderate income housing stock. It is imperative that the supply of residential housing for persons and families displaced by public actions or natural disaster be increased; that private enterprise and investment be encouraged both to sponsor land development for residential housing for such persons and families and to sponsor, build and rehabilitate residential housing for such persons and families; and that private financing be supplemented by financing as in this article provided, to help prevent the recurrence of slum conditions and blight and assist in their permanent elimination throughout West Virginia.
(c) The Legislature hereby finds and declares further that experience has demonstrated that concentration in residential housing developments, or residential housing areas, of only persons and families who, without some form of private or public assistance, do not have incomes sufficient to afford sanitary, decent and safe residential housing, frequently does not eliminate, or avoid, undesirable social conditions and frequently does not permanently eliminate, or avoid, slum conditions, and that in such instances occupancy of some of the residential housing units in such residential housing developments, or residential housing areas, by persons and families of higher income is desirable and beneficial in achieving the stated public purposes for enacting this legislation.
(d) The Legislature hereby finds and declares further that depressed economic conditions in this state and a related lack of employment and business opportunities caused thousands of people to leave this state to find employment elsewhere; that such depressed economic conditions and related exodus of population adversely affected the property tax base of this state, adversely affected the excise tax base of this state, diminished the manpower resources of this state necessary for modern mining, industrial and commercial operations and development in this state, caused the population of this state to include a disproportionately high number of elderly, disabled and economically disadvantaged persons, resulted in the spread of slum conditions and blight to formerly sound urban and rural neighborhoods, retarded, and continue to retard, the repair and improvement of existing residential housing and the construction of new residential housing, adversely affected, and continue to adversely affect, land development, including the extension and construction of water systems, nonpolluting sewer systems, other utility facilities and off-highway streets and roads essential to new industrial, commercial and residential housing development, critically restricted, and continue to critically restrict, the construction of public housing for occupancy by persons and families at the lowest level of the low and moderate income segment of the population of this state, critically restricted, and continue to critically restrict, the opportunities of persons and families at all levels of the low and moderate income segment of the population of this state for improved residential housing, either newly constructed or which would normally become available to them when vacated by persons and families of higher income occupying newly constructed residential housing, and critically restricted, and continue to critically restrict, the construction of new residential housing, including, but not limited to, nursing homes and intermediate care facilities, of design and location suitable for occupancy by disabled and by elderly persons; that as a result of public actions involving highways, public facilities, flood-control projects and urban-renewal activities undertaken as a part of the programs of this state to improve economic conditions and increase employment opportunities in this state with a view to improving the health, welfare and prosperity of residents of this state and reversing the outward movement of population in this state, extensive areas which are suitable for industrial, commercial and residential housing uses have been, or in the near future will be, opened up for development for such purposes but in many instances will be without the land development, including water and nonpolluting sewer systems, other utility facilities and off-highway street and road improvements essential to use of the same for such purposes; that as a result of the unique physical, economic, demographic and other characteristics of this state, including its rugged mountainous terrain, scarcity of land at low or moderate cost suitable for residential housing, low population density and cultural preferences which are not suited for the denser, larger-scale housing projects typical of more urban areas and high costs of land development and housing construction, the difficulties of providing land development, including water and nonpolluting sewer systems, other utility facilities and off-highway streets and roads, and of providing residential housing, are unusually severe within this state and have restricted and continue to restrict, land development and housing construction needed for the people of the state; that as a direct consequence of the foregoing there exists in this state a serious shortage of sanitary, decent and safe residential housing available for occupancy by persons and families of all but the highest income levels and there exists in this state a serious shortage of water and nonpolluting sewer systems, other utility facilities and off-highway street and road developments essential to utilization of land for industrial, commercial and residential housing purposes which, due to public actions involving highways, public facilities, flood-control projects and urban-renewal activities, is, or will soon become, available for needed industrial, commercial and residential housing purposes; that these shortages are severe in certain urban areas of this state, are especially critical in rural areas of this state and are inimical to the present and future health, welfare and prosperity of all residents of this state and to the sound growth and development of communities in this state; and that unless promptly remedied these shortages will continue to seriously retard the sound economic growth and development of this state, the related property tax and excise tax bases of this state and the availability in this state of manpower resources essential to modern mining, industrial and commercial operations and development which are essential to the health, welfare and prosperity of this state and its residents.
(e) The Legislature hereby finds and declares further that private enterprise and investment have not been able to produce, or provide mortgage financing for, sufficient new sanitary, decent and safe residential housing at prices or rentals low enough to enable sufficient persons and families having incomes at or immediately above the higher level of the low and moderate income segment of the population of this state to occupy the same and thereby provide opportunities for persons and families of lesser income to occupy existing sanitary, decent and safe residential housing thereby vacated, have not been able to produce, or provide mortgage financing for, sufficient new residential housing essential to retain and attract qualified manpower resources in and to many areas of this state where such resources are, or shortly will be, critically needed for existing, expanding and new mining, industrial and commercial operations and development, have not been able to produce, or provide mortgage financing for, sufficient new residential housing, including, but not limited to, nursing homes and intermediate care facilities, of design and location suitable for occupancy by elderly and by disabled persons, have not been able to finance sufficient land development, including extensions or construction of water and nonpolluting sewer systems, other utility facilities and off-highway streets and roads, essential to utilization of undeveloped areas of this state for industrial, commercial and residential housing purposes, and have not been able to achieve urgently needed rehabilitation of much of the present housing stock of this state; that it is imperative that the supply of residential housing necessary to retain and attract qualified manpower resources in and to many areas of this state where such resources are, or shortly will be, critically needed for existing, expanding and new mining, industrial and commercial operations and developments be provided, that sufficient new residential housing, including, without limitation, nursing homes and intermediate care facilities, designed and located so as to be suitable for occupancy by elderly persons and by disabled persons be provided, that needed public housing for occupancy by persons and families at the lowest level of the low and moderate income segment of the population of this state be provided, that land development, including water and nonpolluting sewer systems and other utilities and off-highway streets and roads in this state necessary or desirable for new commercial, industrial and residential housing uses be provided, and that the existing political subdivisions of this state, and private enterprise and investment resources in this state, be encouraged to sponsor and finance land development, including water and nonpolluting sewer systems, other utilities and off-highway streets and roads, and to finance, construct and rehabilitate such residential housing; and that it is necessary that such efforts be supplemented by this state as in this article provided.
(f) The Legislature hereby finds and declares further that political subdivisions in West Virginia which are presently authorized and empowered by law to acquire, construct, operate and manage public housing projects have not been able to acquire and construct, even with available federal and state assistance, public housing projects sufficient to fulfill the needs for sanitary, decent and safe residential housing for occupancy by persons and families at the lowest level of the low and moderate income segment of the population of this state who have been entitled to occupy public housing in many smaller municipalities in West Virginia and especially in the rural areas of West Virginia; that the primary cause of such shortage of needed public housing projects is the inability of such political subdivisions to remedy such shortages because the number of units of public housing needed within its territorial jurisdiction is not sufficient to generate, and justify the expenditure of, adequate funds to provide the requisite arranging of financing for, and planning, development, acquisition, construction, operation and management of such public housing; and that the acquisition, construction, planning, development, financing and management of public housing projects in this state by a governmental instrumentality and public body corporate with statewide jurisdiction as authorized herein will permit or facilitate the arranging of financing for, and planning, development, acquisition, construction, operation or management of public housing units, even though such units are included in several projects each of which contains a relatively small number of such units, sufficient in the aggregate to generate, and justify the expenditure of, sufficient funds to provide the requisite arranging of financing for, and planning, development, acquisition, construction, operation and management of such public housing, thereby providing the means to alleviate the existing shortages of public housing in many municipalities in West Virginia and in the rural areas of West Virginia.
(g) The Legislature hereby finds and declares further that its intention by enacting this legislation is to provide for the continuation of the West Virginia Housing Development Fund, the corporate purpose of which is to provide financing for development costs and land development to public and private sponsors of land development in this state; further to provide federally insured construction loans to public and private sponsors of land development or to public and private sponsors of residential housing for occupancy by eligible persons and families; further to provide uninsured construction loans to public and private sponsors of land development or to public and private sponsors of residential housing for occupancy by eligible persons and families or to eligible persons and families who may construct such housing; further to provide long term federally insured mortgage loans to public and private sponsors of residential housing for occupancy by eligible persons and families and to eligible persons and families who may purchase or construct such housing; further to provide long-term uninsured mortgage loans to public and private sponsors of residential housing for occupancy by eligible persons and families and to eligible persons and families who may purchase or construct such housing; further to provide technical, consultative and project assistance service to public and private sponsors of such land development or residential housing; further to increase the construction of residential housing for occupancy by eligible persons and families through participating in the making of, or the making of, loans to mortgagees approved by the Housing Development Fund, and taking as collateral security therefor, or purchasing, or investing in long-term federal mortgages or federally insured mortgages, or uninsured mortgages, on residential housing constructed in this state, thereby increasing the supply of funds for long-term mortgage financing of residential housing for occupancy by eligible persons and families and freeing funds for use in short-term construction financing of residential housing for occupancy by eligible persons and families; further to plan, develop, finance, acquire, construct, mortgage or otherwise encumber, operate, manage, sell, lease or otherwise dispose of public housing projects; and finally to assist in coordinating federal, state, regional and local public and private efforts and resources to otherwise increase the supply of such residential housing.
(h) The Legislature hereby finds and declares further that in accomplishing this purpose, the West Virginia Housing Development Fund, heretofore created and established by this article, is acting in all respects for the benefit of the people of the State of West Virginia to serve a public purpose in improving and otherwise promoting their health, welfare and prosperity, and that the West Virginia Housing Development Fund, heretofore created and established, is empowered, hereby, to act on behalf of the State of West Virginia and its people in serving this public purpose for the benefit of the general public.
(i) The Legislature hereby finds and declares further that during a period of national growth this state has experienced a lack of employment and business opportunities, which have caused a reduction in the tax base of the state, diminishing the resources available to this state to provide for the health, safety and welfare of its citizens; that there has been and continues to be a need for economic development and improvement and capital investment in this state, including, but not limited to, the real estate and construction industries, both residential and nonresidential; that there exists in this state a shortage of the capital needed to finance general economic development through investment in enterprises which have the potential to create new employment opportunities in this state and that there also exists a shortage of construction and real estate development financing, underwriting and construction expertise, which shortage can be alleviated by utilizing the expertise of the Housing Development Fund and its staff, which are hereby determined to be suited to facilitate, implement and undertake the general economic development and real estate construction and development projects, both residential and nonresidential, which are necessary to support the capital base and employment levels and remedy many of the underlying causes of the current economic difficulties existing in this state; that many other states have facilitated the development of capital and the growth of employment opportunities through state programs which provide combined technical and financial assistance for business and real estate development in such states; and the Legislature hereby finds and declares further in support of the foregoing that it shall be a corporate purpose of the Housing Development Fund to provide assistance by loans, grants or otherwise for the costs, including development and direct and indirect costs, and financing for public and private sponsors of land development, residential housing and nonresidential projects in this state, and further to provide construction loans and mortgage loans (including privately insured and uninsured) to public and private sponsors of land development and residential housing and nonresidential projects in this state, to make grants and provide technical, consultative and project assistance services to public and private sponsors of land development and residential housing and nonresidential projects in this state, and to plan, develop, finance, acquire, construct, renovate, improve, mortgage or otherwise encumber, operate, manage, sell, lease or otherwise dispose of general economic development and land development projects and residential projects and nonresidential projects in this state.
(j) The Legislature hereby finds and declares further that the Housing Development Fund and its staff have extensive expertise in real estate development financing, underwriting and construction activities, and further that there is a need on behalf of public and educational bodies to facilitate the construction of new facilities or renovation of existing facilities, which need can best be met by making available to such public agencies and bodies the real estate and construction development services and consultative expertise of the Housing Development Fund at such cost and fees as the Housing Development Fund would normally impose, subject to the provisions of this article relating to the powers of the Housing Development Fund.
§31-18-3. Definitions.
As used in this article, unless the context otherwise requires:
(1) “Affordable Housing Fund” means the affordable housing fund created and established by the Housing Development Fund in accordance with §31-18-20d of this code.
(2) “Annual sinking fund payment” means the amount of money specified in the resolution or resolutions authorizing term bonds as payable into a sinking fund during a particular calendar year for the retirement of term bonds at maturity after such calendar year, but shall not include any amount payable by reason only of the maturity of a bond.
(3) “Development costs” means the costs approved by the Housing Development Fund as appropriate expenditures by the Housing Development Fund or by sponsors, for land development, residential housing, or nonresidential projects within this state, including, but not limited to:
(a) Payments for options to purchase proposed sites, necessary easements, and other related property rights, deposits on contracts of purchase, or, with prior approval of the Housing Development Fund, payments for the purchase of such properties;
(b) Legal and organizational expenses, including payments of attorneys’ fees, utility and governmental application and filing fees and expenses, project manager and clerical staff salaries, office rent, and other incidental expenses;
(c) Payment of fees and expenses for preliminary feasibility studies and costs estimates and advances for planning, engineering, and architectural work;
(d) Expenses for tenant surveys and market analyses; and
(e) Necessary application, approval, and other fees.
(4) “Eligible persons and families” means:
(a) Persons and families of low and moderate income; or
(b) Persons or families of higher income to the extent the Housing Development Fund shall find and determine, by resolution, that construction of new or rehabilitated residential housing for occupancy by them will cause to be vacated existing sanitary, decent, and safe residential housing available at prices or rentals which persons and families of low and moderate income can afford; or
(c) Persons or families of higher income to the extent the Housing Development Fund shall find and determine, by resolution, that construction of new or rehabilitated multifamily rental housing or new, rehabilitated, or existing home ownership housing in the state for occupancy by them will further economic growth, increase the housing stock in the state by eliminating substandard or deteriorating housing conditions, or provide additional housing opportunities in the state; or
(d) Persons who because of age or physical disability are found and determined by the Housing Development Fund, by resolution, to require residential housing of a special location or design in order to provide them with sanitary, decent, and safe residential housing; or
(e) Persons and families for whom, as found and determined by the Housing Development Fund by resolution, construction of new or rehabilitated residential housing in some designated area or areas of the state is necessary for the purpose of retaining in, or attracting to, such area or areas qualified manpower resources essential to modern mining, industrial and commercial operations, and development in such area or areas.
(5) “Federally insured construction loan” means a construction loan for land development, residential housing, or nonresidential projects, which are either secured or guaranteed, in whole or in part, by a federally insured mortgage or a federal mortgage, or which are insured or guaranteed, in whole or in part, by the United States or an instrumentality thereof, or a commitment by the United States or an instrumentality thereof to insure such loan.
(6) “Federally insured mortgage” means a mortgage loan for land development, residential housing, or nonresidential projects with a commitment by the United States or an instrumentality thereof to insure or guarantee such a mortgage.
(7) “Federal mortgage” means a mortgage loan for land development, residential housing, or nonresidential projects made by the United States or an instrumentality thereof, or a commitment by the United States or an instrumentality thereof to make such a mortgage loan.
(8) “Housing Development Fund” means the West Virginia Housing Development Fund heretofore created and established by §31-18-4 of this code.
(9) “Land development” means the process of acquiring land for residential housing construction or nonresidential projects or of making, installing, or constructing improvements, including waterlines and water supply installations, sewer lines and sewage disposal installations, steam, gas, telephone, and telecommunications and electric lines and installations, roads, railroad spurs, docking and shipping facilities, streets, curbs, gutters, sidewalks, drainage, and flood control facilities, whether on or off the site, which the Housing Development Fund deems necessary or desirable to prepare such land for construction within this state.
(10) “Land Development Fund” means the land development fund which may be created and established by the Housing Development Fund in accordance with §31-18-20a of this code.
(11) “Minimum bond insurance requirement” means, as of any particular date of computation, an amount of money equal to the greatest of the respective amounts, for the then current or any future calendar year, of annual debt service of the Housing Development Fund on all outstanding mortgage finance bonds, such annual debt service for any calendar year being the amount of money equal to the aggregate of: (a) All interest payable during such calendar year on such mortgage finance bonds on said date of computation; plus (b) the principal amount of such mortgage finance bonds outstanding which matures during such calendar year, other than mortgage finance bonds for which annual sinking fund payments have been or are to be made in accordance with the resolution authorizing such bonds; plus (c) the amount of all annual sinking fund payments payable during such calendar year with respect to any such mortgage finance bonds, all calculated on the assumption that bonds will after said date of computation cease to be outstanding by reason, but only by reason, of the payment of bonds when due, and the payment when due and application in accordance with the resolution authorizing such bonds of all such sinking fund payments payable at or after said date of computation.
(12) “Mortgage finance bonds” means bonds issued or to be issued by the Housing Development Fund and secured by a pledge of amounts payable from the mortgage finance bond insurance fund in the manner and to the extent provided in §31-18-20b of this code.
(13) “Mortgage Finance Bond Insurance Fund” means the special trust fund created and established in the State Treasury in accordance with §31-18-20b of this code.
(14) “Nonresidential project” means a project in the state, whether or not directly related to the providing of residential housing, determined by the Housing Development Fund as likely to foster and enhance economic growth and development in the area of the state in which such project is developed, for retail, commercial, industrial, community improvement, or preservation or other proper purpose, including tourism and recreational housing, land, air, or water transportation facilities, facilities for vocational or other training or to provide medical care and other special needs of persons residing in the state, sports complexes and cultural, artistic, and other exhibition centers, industrial or commercial projects and facilities, mail order, wholesale, and retail sales facilities, and other real or personal properties including facilities which are owned or leased by this state, any county or municipality or other public body within the state, and includes, without limitation, the process of acquiring, holding, operating, planning, financing, demolition, construction, renovation, leasing, or otherwise disposing of such project or any part thereof or interest therein. Any such project may include appurtenant machinery and equipment.
(15) “Operating Loan Fund” means the operating loan fund which may be created and established by the Housing Development Fund in accordance with §31-18-19 of this code.
(16) “Persons and families of low and moderate income” means persons and families, irrespective of race, creed, national origin, or sex, determined by the Housing Development Fund to require such assistance as is made available by this article on account of personal or family income not sufficient to afford sanitary, decent, and safe housing, and to be eligible or potentially eligible to occupy residential housing constructed and financed, wholly or in part, with federally insured construction loans, federally insured mortgages, federal mortgages, or with other public or private assistance, or with uninsured construction loans, or uninsured mortgage loans, and in making such determination the fund shall take into account the following: (a) The amount of the total income of such persons and families available for housing needs; (b) the size of the family; (c) the cost and condition of housing facilities available; (d) the eligibility of such persons and families for federal housing assistance of any type predicated upon low or moderate income basis; and (e) the ability of such persons and families to compete successfully in the normal housing market and to pay the amounts at which private enterprise is providing sanitary, decent, and safe housing: Provided, That to the extent found and determined by the Housing Development Fund, by resolution, to be necessary or appropriate for the purposes of eliminating undesirable social conditions and permanently eliminating slum conditions, the income limitation requirements of this article may be waived as to any persons or families who are eligible to occupy residential housing constructed in whole, or in part, with federally insured construction loans, federally insured mortgages or federal mortgages under housing assistance or mortgage insurance programs of the United States, or an instrumentality thereof, predicated upon any low- or moderate-income basis.
(17) “Residential housing” means a specific work or improvement within this state undertaken primarily to provide dwelling accommodations, including the acquisition, construction, or rehabilitation of land, buildings, and improvements thereto, for residential housing for occupancy by eligible persons and families, including, but not limited to, facilities for temporary housing and emergency housing, nursing homes and intermediate care facilities, and such other nonhousing facilities as may be incidental or appurtenant thereto.
(18) “Special bond insurance commitment fee” means a fee in the amount of one per centum of the total principal amount of each loan which is to be temporarily or permanently financed from the proceeds of mortgage finance bonds, other than a federally insured construction loan, a federally insured mortgage or a federal mortgage, or an amount equal to an equivalent discount on each loan purchased or invested in by the Housing Development Fund from the proceeds of mortgage finance bonds, other than a federally insured construction loan, a federally insured mortgage or a federal mortgage, and which may be payable from the proceeds of such bonds or any other source available to the Housing Development Fund for such use: Provided, That if the period of time between the first disbursement of proceeds of such loan and the date upon which it is specified that the first repayment of principal of such a loan shall be payable exceeds 12 months, an additional amount computed on the basis of one twelfth of one per centum per month on the total principal amount of such loan over the number of months of such period of time in excess of 12 months shall be included in such fee.
(19) “Special bond insurance premium” means: (i) A fee at the rate of one half of one percent per annum on the outstanding principal balance which the Housing Development Fund shall charge the borrower of a mortgage loan, or of a loan secured by a mortgage, financed from the proceeds of mortgage finance bonds, other than a federally insured construction loan, a federally insured mortgage or a federal mortgage, which shall accrue from a date which is one month prior to the date on which the first installment payment of principal of such a loan is payable and which shall be payable thereafter in monthly installments on the same day of each successive month that installment payments of principal of such a loan are payable; and (ii) with respect to any loan, other than a federally insured construction loan, a federally insured mortgage or a federal mortgage, purchased, or invested in with such proceeds, an equivalent amount which the Housing Development Fund shall set aside from payments it receives on such loan or from any other source available to the Housing Development Fund for such use.
(20) “State sinking fund commission” means the commission known as such and continued in existence pursuant to §13-3-1 et seq. of this code and any body, board, person, or commission which shall, by law, hereafter succeed to the powers and duties of such commission.
(21) “Temporary housing” means a specific work or improvement within this state undertaken primarily to provide dwelling accommodations, including the acquisition, construction, or rehabilitation of land, buildings, and improvements thereto, for temporary residential housing, including, but not limited to, shelters for homeless people, housing for victims of floods and other disasters, shelters for abused or battered persons and their children, housing for families with hospitalized family members, housing for students and student families, and housing for the handicapped and such other nonhousing facilities as may be incidental or appurtenant thereto.
(22) “Uninsured construction loans” means a construction loan for land development, residential housing or nonresidential projects which is not secured by either a federally insured mortgage or a federal mortgage, and which is not insured by the United States or an instrumentality thereof, and as to which there is no commitment by the United States or an instrumentality thereof to provide insurance.
(23) “Uninsured mortgage” and “uninsured mortgage loan” means mortgage loans for land development, residential housing or nonresidential projects which are not insured or guaranteed by the United States or an instrumentality thereof, and as to which there is no commitment by the United States or an instrumentality thereof to provide insurance.
§31-18-4. Composition; board of directors; appointment, term, etc., of private members; chairman and vice chairman; quorum.
(a) There is continued as a governmental instrumentality of the State of West Virginia, a public body corporate to be known as the West Virginia Housing Development Fund.
(b) The Housing Development Fund is created and established to serve a public corporate purpose and to act for the public benefit and as a governmental instrumentality of the State of West Virginia, to act on behalf of the state and its people in improving and otherwise promoting their health, welfare and prosperity.
(c) The Housing Development Fund shall be governed by a board of directors, consisting of eleven members, four of whom shall be the Governor, the Attorney General, the Commissioner of Agriculture, and the state Treasurer, or their designated representatives as public directors, and seven of whom shall be chosen from the general public residing in the state, as private directors. No more than four of the private directors shall be from the same political party.
(d) Upon organization of the Housing Development Fund, the Governor shall appoint, by and with the advice and consent of the Senate, the seven private directors to take office and to exercise all powers thereof immediately, with two each appointed for terms of two years and three years, and with three each appointed for terms of four years, respectively, as the Governor shall designate; at the expiration of said terms and for all succeeding terms, the Governor shall appoint a successor to the office of private director for a term of four years in each case.
(e) A vacancy in the office of a private director is filled by appointment by the Governor for the remainder of the unexpired term.
(f) The Governor may remove any private director for reason of incompetency, neglect of duty, gross immorality, or malfeasance in office and appoint a director to fill the vacancy as provided in other cases of vacancy.
(g) The Governor or designee serves as chair. The board of directors shall annually elect one of its public members as vice chair and appoint a secretary to keep records of its proceedings, who need not be a member of the board.
(h) Six members of the board of directors constitutes a quorum. A vacancy in the membership of the board does not impair the duties of the board of directors.
(i) Action may not be taken by the board of directors except upon the affirmative vote of at least six of the directors.
(j) The directors, including the chair, vice chair and treasurer, and the secretary of the board are not compensated for their services but receive reasonable and necessary expenses actually incurred in discharging their duties under this article in a manner consistent with guidelines of the travel management office of the Department of Administration.
§31-18-5. Management and control of Housing Development Fund vested in board; officers; liability.
(a) The management and control of the Housing Development Fund shall be vested solely in the board of directors in accordance with the provisions of this article.
(b) The chairman shall be the chief executive officer of the Housing Development Fund, and, in his or her absence, the vice chairman shall act as chief executive officer.
(c) The Governor appoints an executive director of the Housing Development Fund, with the advice and consent of the Senate, who serves at the Governor's will and pleasure. The director is responsible for managing and administering the daily functions of the Housing Development Fund and for performing other functions necessary to the effective operation of the Housing Development Fund. The executive director's compensation is fixed annually by the board of directors.
(d) The board of directors of the Housing Development Fund shall annually elect from its membership a treasurer and shall annually elect a secretary, who need not be a member of the board, to keep a record of the proceedings of the Housing Development Fund.
(e) The treasurer of the Housing Development Fund shall be custodian of all funds of the Housing Development Fund and shall be bonded in such amount as the other members of the board of directors may designate.
(f) The directors and officers of the West Virginia Housing Development Fund shall not be liable personally, either jointly or severally, for any debt or obligation created by the West Virginia Housing Development Fund.
§31-18-6. Corporate Powers.
The Housing Development Fund is hereby granted, has and may exercise all powers necessary or appropriate to carry out and effectuate its corporate purpose, including, but not limited to, the following:
(1) To make or participate in the making of federally insured construction loans to sponsors of land development, residential housing, or nonresidential projects. Such loans shall be made only upon determination by the Housing Development Fund that construction loans are not otherwise available, wholly or in part, from private lenders upon reasonably equivalent terms and conditions;
(2) To make temporary loans, with or without interest, but with such security for repayment as the Housing Development Fund determines reasonably necessary and practicable, from the operating loan fund, if created, established, organized, and operated in accordance with the provisions of §31-18-19 of this code, to defray development costs to sponsors of land development, residential housing, or nonresidential projects which are eligible or potentially eligible for federally insured construction loans, federally insured mortgages, federal mortgages or uninsured construction loans or uninsured mortgage loans;
(3) To make or participate in the making of long-term federally insured mortgage loans to sponsors of land development, residential housing, or nonresidential projects. Such loans shall be made only upon determination by the Housing Development Fund that long-term mortgage loans are not otherwise available, wholly or in part, from private lenders upon reasonably equivalent terms and conditions;
(4) To establish residential housing and nonresidential and land development projects for counties declared to be in a disaster area by the Federal Emergency Management Agency or other agency or instrumentality of the United States or this state;
(5) To accept appropriations, gifts, grants, bequests, and devises and to utilize or dispose of the same to carry out its corporate purpose;
(6) To make and execute contracts, releases, compromises, compositions, and other instruments necessary or convenient for the exercise of its powers, or to carry out its corporate purpose;
(7) To collect reasonable fees and charges in connection with making and servicing loans, notes, bonds, obligations, commitments, and other evidences of indebtedness, and in connection with providing technical, consultative, and project assistance services;
(8) To invest any funds not required for immediate disbursement in any of the following securities:
(i) Direct obligations of or obligations guaranteed by the United States of America or for the payment of the principal and interest on which the full faith and credit of the United States of America is pledged;
(ii) Bonds, debentures, notes, or other evidences of indebtedness issued by any of the following agencies: Banks for Cooperatives; Federal Intermediate Credit Banks; Federal Home Loan Bank System; Export-Import Bank of the United States; Federal Land Banks; Tennessee Valley Authority; United States Postal Service; Inter-American Development Bank; International Bank for Reconstruction and Development; Small Business Administration; Washington Metropolitan Area Transit Authority; General Services Administration; Federal Financing Bank; Federal Home Loan Mortgage Corporation; Student Loan Marketing Association; Farmer’s Home Administration; the Federal National Mortgage Association or the Government National Mortgage Association; or any bond, debenture, note, participation certificate or other similar obligation to the extent such obligations are guaranteed by the Government National Mortgage Association or Federal National Mortgage Association or are issued by any other federal agency and backed by the full faith and credit of the United States of America;
(iii) Public housing bonds issued by public agencies or municipalities and fully secured as to the payment of both principal and interest by a pledge of annual contributions under an annual contributions contract or contracts with the United States of America; or temporary notes, preliminary loan notes, or project notes issued by public agencies or municipalities, in each case, fully secured as to the payment of both principal and interest by a requisition or payment agreement with the United States of America;
(iv) Certificates of deposit, time deposits, investment agreements, repurchase agreements, or similar banking arrangements with a member bank or banks of the federal reserve system or a bank the deposits of which are insured by the federal deposit insurance corporation, or its successor, or a savings and loan association or savings bank the deposits of which are insured by the federal savings and loan insurance corporation, or its successor, or government bond dealers reporting to, trading with and recognized as primary dealers by a federal reserve bank: Provided, That such investments shall only be made to the extent insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation or to the extent that the principal amount thereof shall be fully collateralized by obligations which are authorized investments for the Housing Development Fund pursuant to this section;
(v) Direct obligations of or obligations guaranteed by the State of West Virginia;
(vi) Direct and general obligations of any other state, municipality, or other political subdivision within the territorial United States: Provided, That at the time of their purchase, such obligations are rated in either of the two highest rating categories by a nationally recognized bond-rating agency;
(vii) Any bond, note, debenture, or annuity issued by any corporation organized and operating within the United States: Provided, That such corporation shall have a minimum net worth of $15 million and its securities or its parent corporation’s securities are listed on one or more of the national stock exchanges: Provided, however, That: (1) Such corporation has earned a profit in eight of the preceding 10 fiscal years as reflected in its statements; and (2) such corporation has not defaulted in the payment of principal or interest on any of its outstanding funded indebtedness during its preceding 10 fiscal years; and (3) the bonds, notes, or debentures of such corporation to be purchased are rated “AA” or the equivalent thereof or better than “AA” or the equivalent thereof by at least two or more nationally recognized rating services such as Standard and Poor’s, Dunn & Bradstreet, Best’s, or Moody’s;
(viii) If entered into solely for the purpose of reducing investment, interest rate, liquidity, or other market risks in relation to obligations issued or to be issued or owned or to be owned by the Housing Development Fund, options, futures contracts (including index futures but exclusive of commodities futures, options, or other contracts), standby purchase agreements or similar hedging arrangements listed by a nationally recognized securities exchange or a corporation described in §31-18-6(8)(vii) of this code;
(ix) Certificates, shares, or other interests in mutual funds, unit trusts or other entities registered under section eight of the United States Investment Company Act of 1940, but only to the extent that the terms on which the underlying investments are to be made prevent any more than a minor portion of the pool which is being invested in to consist of obligations other than investments permitted pursuant to this section; and
(x) To the extent not inconsistent with the express provisions of this section, obligations of the West Virginia State Board of Investments or any other obligation authorized as an investment for the West Virginia State Board of Investments under §12-6-1 et seq. of this code or for a public housing authority under §16-15-1 et seq. of this code;
(9) To sue and be sued;
(10) To have a seal and alter the same at will;
(11) To make, and from time to time, amend, and repeal bylaws and rules and regulations not inconsistent with the provisions of this article;
(12) To appoint such officers, employees, and consultants as it deems advisable and to fix their compensation and prescribe their duties;
(13) To acquire, hold, and dispose of real and personal property for its corporate purposes;
(14) 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;
(15) To acquire real property, or an interest therein, in its own name, by purchase or foreclosure, where such acquisition is necessary or appropriate to protect any loan in which the Housing Development Fund has an interest and to sell, transfer, and convey any such property to a buyer and, in the event of such sale, transfer, or conveyance cannot be effected with reasonable promptness or at a reasonable price, to lease such property to a tenant;
(16) To purchase or sell, at public or private sale, any mortgage or other negotiable instrument or obligation securing a construction, rehabilitation, improvement, land development, mortgage, or temporary loan;
(17) To procure insurance against any loss in connection with its property in such amounts, and from such insurers, as may be necessary or desirable;
(18) To consent, whenever it deems it necessary or desirable in the fulfillment of its corporate purpose, to the modification of the rate of interest, time of payment or any installment of principal or interest, or any other terms, of mortgage loan, mortgage loan commitment, construction loan, rehabilitation loan, improvement loan, temporary loan, contract, or agreement of any kind to which the Housing Development Fund is a party;
(19) To make and publish rules and regulations respecting its federally insured mortgage lending, uninsured mortgage lending, construction lending, rehabilitation lending, improvement lending and lending to defray development costs and any such other rules and regulations as are necessary to effectuate its corporate purpose;
(20) To borrow money to carry out and effectuate its corporate purpose and to issue its bonds or notes as evidence of any such borrowing in such principal amounts and upon such terms as shall be necessary to provide sufficient funds for achieving its corporate purpose, except that no notes shall be issued to mature more than 20 years from date of issuance and no bonds shall be issued to mature more than 50 years from date of issuance;
(21) To issue renewal notes, to issue bonds to pay notes and, whenever it deems refunding expedient, to refund any bonds by the issuance of new bonds, whether the bonds to be refunded have or have not matured except that no such renewal notes shall be issued to mature more than 20 years from date of issuance of the notes renewed and no such refunding bonds shall be issued to mature more than 50 years from the date of issuance;
(22) To apply the proceeds from the sale of renewal notes or refunding bonds to the purchase, redemption, or payment of the notes or bonds to be refunded;
(23) To make grants and provide technical services to assist in the purchase or other acquisition, planning, processing, design, construction, or rehabilitation, improvement, or operation of residential housing, nonresidential projects, or land development: Provided, That no such grant or other financial assistance shall be provided except upon a finding by the Housing Development Fund that such assistance and the manner in which it will be provided will preserve and promote residential housing in this state or the interests of this state in maintaining or increasing employment or the tax base;
(24) To provide project assistance services for residential housing, nonresidential projects, and land development, including, but not limited to, management, training, and social and other services;
(25) To promote research and development in scientific methods of constructing low-cost land development, residential housing, or nonresidential projects of high durability including grants, loans, or equity contributions for research and development purposes: Provided, That no such grant or other financial assistance shall be provided except upon a finding by the Housing Development Fund that such assistance and the manner in which it will be provided will preserve and promote residential housing in this state or the interests of this state in maintaining and increasing employment and the tax base;
(26) With the proceeds from the issuance of notes or bonds of the Housing Development Fund, including, but not limited to, mortgage finance bonds, or with other funds available to the Housing Development Fund for such purpose, to participate in the making of or to make loans to mortgagees approved by the Housing Development Fund and take such collateral security therefor as is approved by the Housing Development Fund and to invest in, purchase, acquire, sell, or participate in the sale of, or take assignments of, notes and mortgages, evidencing loans for the construction, rehabilitation, improvement, purchase, or refinancing of land development, residential housing, or nonresidential projects in this state: Provided, That the Housing Development Fund shall obtain such written assurances as shall be satisfactory to it that the proceeds of such loans, investments, or purchases will be used, as nearly as practicable, for the making of or investment in long-term federally insured mortgage loans or federally insured construction loans, uninsured mortgage loans, or uninsured construction loans, for land development, residential housing, or nonresidential projects or that other moneys in an amount approximately equal to such proceeds shall be committed and used for such purpose;
(27) To make or participate in the making of uninsured construction loans for land development, residential housing or nonresidential projects. Such loans shall be made only upon determination by the Housing Development Fund that construction loans are not otherwise available, wholly or in part, from private lenders upon reasonably equivalent terms and conditions;
(28) To make or participate in the making of long-term uninsured mortgage loans for land development, residential housing, or nonresidential projects. Such loans shall be made only upon determination by the Housing Development Fund that long-term mortgage loans are not otherwise available, wholly or in part, from private lenders upon reasonably equivalent terms and conditions;
(29) To obtain options to acquire real property, or any interest therein, in its own name, by purchase, or lease or otherwise, which is found by the Housing Development Fund to be suitable, or potentially suitable, as a site, or as part of a site, for land development or the construction of residential housing or nonresidential projects; to hold such real property or to acquire by purchase or otherwise and to transfer by sale or otherwise any ownership or equity interests in any other legal entity which holds such real property; to finance the performance of land development, residential housing, or nonresidential projects on or in connection with any such real property or to perform land development, residential housing, or nonresidential projects on or in connection with any such real property; to own, operate, and sponsor or participate in the sponsorship of land development, residential housing, or nonresidential projects; or to sell, transfer and convey, lease, or otherwise dispose of such real property, or lots, tracts, or parcels of such real property, for such prices, upon such terms, conditions, and limitations, and at such time or times as the Housing Development Fund shall determine;
(30) To make loans, with or without interest, but with such security for repayment as the Housing Development Fund determines reasonably necessary and practicable from the land development fund, if created, established, organized, and operated in accordance with the provisions of §31-18-20a of this code, to sponsors of land development, to defray development costs and other costs of land development;
(31) To exercise all of the rights, powers, and authorities of a public housing authority as set forth and provided in §16-15-1 et seq. of this code, in any area or areas of the state which the Housing Development Fund shall determine by resolution to be necessary or appropriate;
(32) To provide assistance to urban renewal projects in accordance with the provisions of §16-18-28 of this code and in so doing to exercise all of the rights, powers, and authorities granted in this article or in said article, in and for any communities of the state which the Housing Development Fund shall determine by resolution to be necessary or appropriate;
(33) To make or participate in the making of loans for the purpose of rehabilitating or improving existing residential and temporary housing or nonresidential projects, or to owners of existing residential or temporary housing for occupancy by eligible persons and families for the purpose of rehabilitating or improving such residential or temporary housing or nonresidential projects and, in connection therewith, to refinance existing loans involving the same property. Such loans shall be made only upon determination by the Housing Development Fund that rehabilitation or improvement loans are not otherwise available, wholly or in part, from private lenders upon reasonably equivalent terms and conditions;
(34) Whenever the Housing Development Fund deems it necessary in order to exercise any of its powers set forth in §31-18-6(29) of this code, and upon being unable to agree with the owner or owners of real property or interest therein sought to be acquired by the fund upon a price for acquisition of private property not being used or operated by the owner in the production of agricultural products, to exercise the powers of eminent domain in the acquisition of such real property or interest therein in the manner provided under §54-1-1 et seq. of this code, and the purposes set forth in said subdivision are hereby declared to be public purposes for which private property may be taken. For the purposes of this section, the determination of “use or operation by the owner in the production of agricultural products” means that the principal use of such real estate is for the production of food and fiber by agricultural production other than forestry, and the fund shall not initiate or exercise any powers of eminent domain without first receiving an opinion in writing from both the Governor and the Commissioner of Agriculture of this state that at the time the fund had first attempted to acquire such real estate or interest therein, such real estate or interest therein was not in fact being used or operated by the owner in the production of agricultural products;
(35) To acquire, by purchase or otherwise, and to hold, transfer, sell, assign, pool, or syndicate, or participate in the syndication of, any loans, notes, mortgages, securities, or debt instruments collateralized by mortgages or interests in mortgages or other instruments evidencing loans or equity interests in or for the construction, rehabilitation, improvement, renovation, purchase, or refinancing of land development, residential housing, and nonresidential projects in this state;
(36) To form one or more nonprofit corporations, whose board of directors shall be the same as the Board of Directors of the Housing Development Fund, which shall be authorized and empowered to carry out any or all of the corporate powers or purposes of the Housing Development Fund, including, without limitation, acquiring limited or general partnership interests and other forms of equity ownership;
(37) To receive and compile data into an electronic database and make available the raw mortgage foreclosure data that is required to be reported to county clerks by trustees pursuant to the provisions of §38-1-8a of this code, including all data that has been received by the banking commissioner pursuant to §31A-2-4c(a) of this code, as of the effective date of the amendments made to said section during the regular session of the 2010 Legislature. This information shall be periodically forwarded by county clerks to the Housing Development Fund, in accordance with the provisions of §44-13-4a of this code;
(38) Provide funding to increase the capacity of nonprofit community housing organizations to serve their communities;
(39) Notwithstanding any other provision of law, no loan may be made or purchased with proceeds of notes or bonds of the Housing Development Fund unless: (i) The related note or bond has received an investment grade rating from a nationally recognized bond-rating agency; or (ii) all payments of principal of and interest on such loan are the subject of credit enhancement that is a senior obligation of a bank, national bank, trust company, savings bank, savings and loan association, insurance company, governmental agency of the United States, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, or any combination thereof; or (iii) at or prior to the issuance of the related note or bond, permanent financing is in full force and effect which will be drawn upon to pay all unpaid amounts with respect to such loan remaining at its maturity; or (iv) all payments of principal and interest on the related note or bond are the subject of credit enhancement that is a senior obligation of a bank, national bank, trust company, savings bank, savings and loan association, insurance company, governmental agency of the United States, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, or any combination thereof; or (v) the related note or bond is fully cash-collateralized; or (vi) the related note or bond is a mortgage finance bond; and
(40) To allocate from time to time a portion of its state ceiling allocation under §13-2C-21(b) of this code to any political subdivision or city or county housing authority authorized to issue bonds or notes for qualified residential rental projects, upon such terms and conditions as the board of directors deems reasonable and appropriate: Provided, That any amounts so allocated by the Housing Development Fund that remain unused by December 31 in any year not otherwise subject to a carryforward pursuant to section 146(f) of the Internal Revenue Code shall be allocated to the Housing Development Fund, which shall be considered to have elected to carryforward the unused allocation for the purpose of issuing qualified mortgage bonds, qualified mortgage credit certificates or bonds for qualified residential rental projects, each as defined in the Internal Revenue Code.
§31-18-6a. Certain loans exempt from laws limiting interest rates or providing forfeitures, etc.
Notwithstanding any other provision to the contrary, no law limiting interest rates or providing for forfeiture, penalty or other loss or liability because of rate of interest charged shall apply to any loan in a principal amount of more than $100,000 on loans made by the Housing Development Fund in the furtherance of its corporate purposes or to any addition to or refinancing of a loan in the original principal amount of more than $100,000, made by the Housing Development Fund for such purposes.
§31-18-7. Notes or bonds as general obligations of Housing Development Fund.
Except as may otherwise be provided by the Housing Development Fund, every issue of its notes or bonds shall be general obligations of the Housing Development Fund payable out of any revenues or moneys of the Housing Development Fund, subject only to any agreements with the holders of particular notes or bonds pledging any particular receipts or revenues.
§31-18-8. Notes and bonds as negotiable instruments.
The notes and bonds shall be and hereby are made negotiable instruments under the provisions of article eight, chapter forty-six of this code, subject only to the provisions of the notes or bonds for registration, unless otherwise provided by resolution of the Housing Development Fund.
§31-18-9. Borrowing of money.
The borrowing of money and the notes and bonds evidencing any such borrowing shall be authorized by resolution approved by the Board of Directors of the Housing Development Fund, shall bear such date or dates, and shall mature at such time or times, in the case of any such note or any renewal thereof, not exceeding 20 years from the date of issue of such original note, and, in the case of any such bond, not exceeding 50 years from the date of issue, as such resolution or resolutions may provide. The notes and bonds shall bear interest at such rate or rates, be in such denominations, be in such form, either coupon or registered, carry such registration privileges, be executed in such manner, be payable in such medium of payment, at such place or places, and be subject to such terms or conditions of redemption as such resolution or resolutions may provide.
§31-18-10. Sale of notes or bonds.
Any notes or bonds issued by the West Virginia Housing Development Fund may be sold in such manner, either at public or private sale, and for such price, upon such terms and at such interest rates per annum, as the fund shall determine to be for the best interests of the fund and to be necessary to effectuate the purposes of this article.
§31-18-11. Authorizing resolutions.
Any resolution or resolutions authorizing any notes or bonds, or any issue thereof, may contain provisions, which shall be a part of the contract with the holders thereof, as to:
(1) Pledging all or part of the mortgage or deed of trust payments, charges and other fees made or received by the Housing Development Fund and other moneys received or to be received to secure the payment of the notes or bonds or of any issue thereof, subject to such agreements with bondholders or noteholders as may then exist;
(2) Pledging all or any part of the assets of the Housing Development Fund to secure the payment of the notes or bonds or any issue of notes or bonds, subject to such agreements with bondholders or noteholders as may then exist;
(3) Pledging as security, or as part of the security, for the payment of any mortgage finance bonds, including, but not limited to mortgage finance bonds issued to pay outstanding notes, amounts payable from the mortgage finance bond insurance fund;
(4) The setting aside of reserves or sinking funds and the regulation and disposition thereof;
(5) Limitations on the purpose to which the proceeds of sale of notes or bonds may be applied and pledging such proceeds to secure the payments of the notes or bonds or of any issue thereof;
(6) Limitations on the issuance of additional notes or bonds; the terms upon which additional notes or bonds may be issued and secured; and the refunding of outstanding or other notes or bonds;
(7) The procedure, if any, by which the terms of any contract with noteholders or bondholders may be amended or abrogated, the amount of notes or bonds the holders of which must consent thereto, and the manner in which such consent may be given;
(8) Limitations on the amount of moneys to be expended by the Housing Development Fund for operating, administrative or other expenses of the Housing Development Fund;
(9) Vesting in a trustee or trustees such property, rights, powers and duties of any trustee appointed by the bondholders pursuant to section sixteen of this article, and limiting or abrogating the right of the bondholders to appoint a trustee under section sixteen of this article or limiting the rights, powers and duties of such trustee; and
(10) Any other matters, of like or different character, which in any way affect the security or protection of the notes or bonds.
§31-18-12. Validity of any pledge, mortgage, deed of trust or security instrument.
It is the intention hereof that any pledge, mortgage, deed of trust or security instrument made by or for the benefit of the Housing Development Fund, including, but not limited to amounts in the mortgage finance bond insurance fund, shall be valid and binding between the parties from the time the pledge, mortgage, deed of trust or security instrument is made; and that the moneys or property so pledged, encumbered, mortgaged or entrusted shall immediately be subject to the lien of such pledge, mortgage, deed of trust or security instrument without any physical delivery thereof or further act. The lien of such pledge shall be valid and binding against all parties having claims of any kind in tort, contract, or otherwise, irrespective of whether such parties have notice of the lien of such pledge. Nothing herein shall be construed to prohibit the Housing Development Fund from selling any property subject to any such pledge, mortgage, deed of trust or security instrument. Such property is not to be sold for less than its fair market value.
§31-18-13. Redemption of notes or bonds.
The Housing Development Fund, subject to such agreements with noteholders or bondholders as may then exist, shall have power, out of any funds available therefor, to purchase notes or bonds of the Housing Development Fund.
If the notes or bonds are then redeemable, the price of such purchase shall not exceed the redemption price then applicable plus accrued interest to the next interest payment date thereon. If the notes or bonds are not then redeemable, the price of such purchase shall not exceed the redemption price applicable on the first date after such purchase upon which the notes or bonds become subject to redemption plus accrued interest to such date. Upon such purchase such notes or bonds shall be canceled.
§31-18-14. Disclaimer of any liability of state of West Virginia.
The state of West Virginia shall not be liable on notes, bonds or other evidences of indebtedness of the Housing Development Fund and such notes, bonds or other evidences of indebtedness shall not be a debt of the State of West Virginia, and such notes, bonds or other evidences of indebtedness shall contain on the face thereof a statement to such effect.
§31-18-15. Limitation of rights vested in Housing Development Fund by state.
The state of West Virginia does hereby pledge to and agree with the holders of any notes or bonds issued under this article, that the state will not limit or alter the rights hereby vested in the Housing Development Fund to fulfill the terms of any agreements made with the holders thereof, or in any way impair the rights and remedies of such holders until such notes or bonds, together with the interest thereon, with interest on any unpaid installments of interest, and all costs and expenses for which the Housing Development Fund is liable in connection with any action or proceeding by or on behalf of such holders, are fully met and discharged. The Housing Development Fund is hereby authorized to include this pledge and agreement of the state in any agreement with the holders of such notes and bonds.
§31-18-16. Default in payment of principal or interest.
(a) In the event the Housing Development Fund shall default in the payment of principal of or interest on any issue of notes or bonds after the same shall become due, whether at maturity or upon call for redemption, and such default shall continue for a period of thirty days, or in the event the Housing Development Fund shall fail or refuse to comply with the provisions of this article or shall default in any agreement made with the holders of any issue of notes or bonds, the holders of twenty-five per centum in aggregate principal amount of the notes or bonds of such issue then outstanding, by instrument or instruments filed in the office of the clerk of the county court of any county in which the Housing Development Fund operates and has an office and acknowledged in the same manner as a deed to be recorded, may appoint a trustee to represent the holders of such notes or bonds for the purposes herein provided.
(b) Any such trustee upon the written request of the holders of twenty-five per centum in principal amount of such notes or bonds then outstanding shall, in his or its own name, do any one or more of the following:
(1) By civil action or other proceeding, enforce all rights of the noteholders or bondholders, including the right to require the Housing Development Fund to perform its duties under this article;
(2) Bring a civil action upon such notes or bonds;
(3) By civil action or other proceeding, require the Housing Development Fund to account as if it were the trustee of an express trust for the holders of such notes or bonds;
(4) By civil action or other proceeding, enjoin any acts or things which may be unlawful or in violation of the rights of the holders of such notes or bonds;
(5) Declare all such notes or bonds due and payable, and if all defaults shall be made good, then, with the consent of the holders of twenty-five per centum of the principal amount of such notes or bonds then outstanding, annul such declaration and its consequences.
(c) In addition to the foregoing, such trustee shall have and possess all of the powers necessary or appropriate for the exercise of any functions specifically set forth herein or incident to the general representation of bondholders or noteholders in the enforcement and protection of their rights.
(d) Before declaring the principal of any notes or bonds due and payable, the trustee shall first give thirty days' notice in writing to the Housing Development Fund.
§31-18-17. Investment in notes and bonds.
The notes and bonds of the Housing Development Fund are hereby made securities in which all insurance companies and associations, and other persons carrying on an insurance business, all banks, bankers, trust companies, building and loan associations, savings and loan associations, investment companies and other persons carrying on a banking business, and other persons, except administrators, guardians, executors, trustees and fiduciaries, who are now or who may hereafter be authorized to invest in bonds or other obligations of the state, may properly and legally invest funds including capital in their control or belonging to them.
§31-18-18. Tax exemption.
The Housing Development Fund shall not be required to pay any taxes and assessments to the State of West Virginia, or any county, municipality or other governmental subdivision of the State of West Virginia, upon any of its property or upon its obligations or other evidences of indebtedness pursuant to the provisions of this article, or upon any moneys, funds, revenues or other income held or received by the Housing Development Fund. The notes and bonds of the Housing Development Fund and the income therefrom shall at all times be exempt from taxation, except for death and gift taxes, taxes on transfers, sales taxes, real property taxes and business and occupation taxes.
§31-18-19. Operating loan fund.
(a) The board of directors of the Housing Development Fund may create and establish a special revolving loan fund of moneys made available by contribution or loan, to be known as the operating loan fund and to be governed, administered and accounted for by the directors, officers and managerial staff of the Housing Development Fund as a public purpose trust account separate and distinct from any other moneys, fund or funds owned and managed by the Housing Development Fund.
(b) The purpose for organizing and operating the operating loan fund shall be to provide a source from which the Housing Development Fund may make temporary loans, with or without interest, but with such security for repayment as the Housing Development Fund deems reasonably necessary and practicable; such loans to be used to defray development costs to sponsors of land development for residential housing construction for occupancy by persons and families of low and moderate income or residential housing construction for occupancy by persons and families of low and moderate income which is eligible or potentially eligible for federally insured construction loans, federally insured mortgages or federal mortgages or other public assistance programs or uninsured construction loans or uninsured mortgage loans.
(c) No temporary loans shall be made by the Housing Development Fund from the operating loan fund except in accordance with a written loan agreement which shall include, but not be limited to, the following terms and conditions:
(1) The proceeds of all such loans shall be used only to defray the development costs of such proposed residential housing;
(2) All such loans shall be repaid in full, with or without interest as provided in the agreement;
(3) All repayments shall be made concurrent with receipt by the borrower of the proceeds of a construction loan or mortgage, as the case may be, or at such other times as the Housing Development Fund deems reasonably necessary or practicable; and
(4) Specification of such security for repayments upon such terms and conditions as the Housing Development Fund deems reasonably necessary or practicable to ensure all repayments.
(d) No funds from the operating loan fund shall be used to carry on propaganda, or otherwise attempt to influence legislation.
§31-18-20. Authorized limit on borrowing.
The aggregate principal amount of bonds and notes issued by the Housing Development Fund shall not exceed $1,250,000,000 outstanding at any one time: Provided, That in computing the total amount of bonds and notes which may at any one time be outstanding, the principal amount of any outstanding bonds or notes refunded or to be refunded either by application of the proceeds of the sale of any refunding bonds or notes of the Housing Development Fund or by exchange for any such refunding bonds or notes, shall be excluded.
§31-18-20a. Land development fund.
(a) The board of directors of the Housing Development Fund may create and establish a special revolving fund of moneys made available by appropriation, grant, contribution or loan, to be known as the land development fund and to be governed, administered and accounted for by the directors, officers and managerial staff of the Housing Development Fund as a special purpose account separate and distinct from any other moneys, fund or funds owned and managed by the Housing Development Fund.
(b) The purpose of the land development fund is to provide a source from which the Housing Development Fund may finance development costs and land development in this state by making loans or grants therefrom, such loans to be with or without interest and with such security for repayment as the Housing Development Fund deems reasonably necessary and practicable, or by expending moneys therefrom, for development costs and land development in this state.
(c) The Housing Development Fund may invest and reinvest all moneys in the land development fund in any investments authorized under section six of this article, pending the disbursement thereof in connection with the financing of development costs and land development in this state.
(d) No loans shall be made by the Housing Development Fund from the land development fund except in accordance with a written loan agreement which shall include, but not be limited to, the following terms and conditions:
(1) The proceeds of all such loans shall be used only for development costs and land development;
(2) All such loans shall be repaid in full, with or without interest, as provided in the agreement;
(3) All repayments shall be made concurrent with receipt by the borrower of the proceeds of a construction loan or mortgage, as the case may be, or at such other times as the Housing Development Fund deems reasonably necessary or practicable; and
(4) Specification of such security for repayments upon such terms and conditions as the Housing Development Fund deems reasonably necessary or practicable.
(e) No grants shall be made by the Housing Development Fund from the land development fund except in accordance with a written grant agreement which shall require that the proceeds of all such grants shall be used only for development costs or land development and containing such other terms and provisions as the Housing Development Fund may require to ensure that the public purposes of this article are furthered by such grant.
(f) The Housing Development Fund may expend any income from the financing of development costs and land development with moneys in the land development fund, and from investment of such moneys, in payment, or reimbursement, of all expenses of the Housing Development Fund which, as determined in accordance with procedures approved by the board of directors of the Housing Development Fund, are fairly allocable to such financing or its land-development activities: Provided, That no funds from the land development fund shall be used to carry on propaganda, or otherwise attempt to influence legislation.
(g) The Housing Development Fund shall create and establish a special account within the land development fund to be designated as the "special project account" into which the Housing Development Fund shall, effective July 1, 1992, deposit the sum of $10,000,000. Such funds shall be governed, administered and accounted for by the Housing Development Fund as a special purpose account separate and distinct from any other moneys, fund or funds owned or managed by the Housing Development Fund. The sole and exclusive purpose of such account is to provide a source of funds for the financing of infrastructure projects including distribution from time to time to the West Virginia water pollution control revolving fund created pursuant to section three, article two, chapter twenty-two-c of this code: Provided, That such distribution shall not exceed $5,450,000; and distribution from time to time to fund soil conservation projects: Provided, however, That such distribution shall not exceed $4,550,000. Until so disbursed, the moneys initially deposited or thereafter from time to time deposited in such special project account, may be invested and reinvested by the Housing Development Fund as permitted under subdivision (8), section six of this article. Any funds remaining in the special project account on July 1, 1995, shall automatically revert to the General Fund of the Housing Development Fund free of any limitations provided in this section. The provisions of subsections (c), (d), (e) and (f) of this section do not apply to the special project account created in this section.
§31-18-20b. Mortgage finance bond insurance fund.
(a) There is hereby created and established in the State Treasury a special trust fund to be designated the "mortgage finance bond insurance fund" into and from which moneys shall be paid as provided in this section. The mortgage finance bond insurance fund shall be under the supervision and control of the state sinking fund commission and all moneys and securities held therein or investments thereof shall be held in trust subject to use and application only as provided herein and in the resolution or resolutions of the Housing Development Fund authorizing the issuance of any mortgage finance bonds, notwithstanding any other provision of law. The mortgage finance bond insurance fund shall be kept separate and apart from all other moneys and funds of the state and the Housing Development Fund is hereby authorized to pledge any amount or amounts held therein to the payment of the principal (including annual sinking fund payments) of, and interest on, mortgage finance bonds in the manner and to the extent and on such terms and conditions as may be provided by the Housing Development Fund.
(b) In addition to any other fees and charges which the Housing Development Fund may charge on loans, it shall charge on all loans or mortgages made or purchased with the proceeds of sale of mortgage finance bonds, except federally insured construction loans, federally insured mortgages, or federal mortgages, a special bond insurance commitment fee and special bond insurance premiums. The special bond insurance commitment fees and special bond insurance premiums so charged shall be remitted to the state sinking fund commission, promptly after the last day of each calendar quarter, by the Housing Development Fund, or by any trustee, trustees, agent or agents designated by the Housing Development Fund to receive the same and shall be held, invested and, together with all investment income thereon, reinvested by the state sinking fund commission in investments authorized under section six of this article.
(c) Simultaneously with the issuance of any mortgage finance bonds, the Housing Development Fund shall cause to be deposited in the mortgage finance bond insurance fund an amount of the proceeds of sale and delivery of such mortgage finance bonds which together with the sum of the amount then on deposit in the mortgage finance bond insurance fund and in reserves theretofore or then set aside with a trustee or trustees and held pursuant to the resolution or resolutions authorizing the issuance of such bonds only for the payment of designated mortgage finance bonds prior to, or at, their maturity, shall equal the minimum bond insurance requirement. Except as provided in subsection (e) of this section, amounts on deposit in the mortgage finance bond insurance fund which are in excess of the minimum bond insurance requirement may be withdrawn from the mortgage finance bond insurance fund and paid to or upon the order of the Housing Development Fund upon thirty days' notice in writing to the state sinking fund commission. For the purposes of determining any amounts held in the mortgage finance bond insurance fund, securities held in or other investments of the mortgage finance bond insurance fund shall be valued at par. If, at any time, the Housing Development Fund shall determine that because of defaults or other reasons, the moneys available therefor shall be insufficient to pay the principal, including the annual sinking fund payment, of, and interest on, mortgage finance bonds becoming due during the next ensuing six-month period, the Housing Development Fund shall give written notice to the state sinking fund commission to transfer the amount of moneys required for such payment, on or before the time and to such trustee or paying agent for any of the mortgage finance bonds as shall be specified in such notice, and the state sinking fund commission shall make such transfer.
(d) In the event that the sum of the amount held in the mortgage finance bond insurance fund and in reserves set aside with a trustee or trustees and held pursuant to the resolution or resolutions authorizing the issuance of such bonds only for the payment of designated mortgage finance bonds prior to, or at, their maturity, shall be less than the minimum bond insurance requirement, the chairman of the Housing Development Fund shall certify, on or before December 1, of each year, the amount of such deficiency to the Governor of the state, for inclusion, if the Governor shall so elect, of the amount of such deficiency in the budget to be submitted to the next session of the Legislature for appropriation to the state sinking fund commission for deposit in the mortgage finance bond insurance fund: Provided, That the Legislature shall not be required to make any appropriation so requested, and the amount of such deficiencies shall not constitute a debt or liability of the state.
(e) Subject to any agreement or agreements with holders of outstanding notes and bonds of the Housing Development Fund, any amount or amounts paid by the state into the mortgage finance bond insurance fund pursuant to this section shall be repaid to the state as, when, and to the extent, amounts held in the mortgage finance bond insurance fund at any time or times after any payment by the state into the mortgage finance bond insurance fund shall exceed the minimum bond insurance requirement at such time or times or as may otherwise be provided by law.
§31-18-20c. Jobs Development Fund.
There is hereby created and established a special fund to be designated as the Jobs Development Fund into which the Housing Development Fund shall, effective July 1, 1992, deposit the sum of $10 million. Thereafter, the Housing Development Fund shall have no further duty or obligation to, but may in its sole discretion, deposit additional funds. Effective July 1, 2022, such funds shall be governed, administered, and accounted for by the West Virginia Economic Development Authority established pursuant to §31-15-1 et seq. of this code as a special purpose account separate and distinct from any other moneys, fund, or funds owned or managed by the authority. The sole and exclusive purpose of such fund shall be to provide a source for distribution from time to time to the jobs investment trust as provided for in §12-7-1 et seq. of this code. Upon receipt by the authority from time to time of a written requisition from the trust together with a certificate that the funds so requisitioned will be used in accordance with the provisions of §12-7-1 et seq. of this code and are expected to be expended within 30 days after such disbursement to fund a loan or other investment or to pay the operating expenses of the trust, the authority shall disburse the amount so requisitioned. Until so disbursed, the moneys initially deposited or thereafter from time to time deposited in such fund may be invested and reinvested by the authority as permitted under §31-18-6 of this code.
§31-18-21. Prohibition on funds inuring to the benefit of or being distributable to directors, officers or private persons; transactions between the Housing Development Fund and directors or officers having certain interests in such transactions.
(a) No part of the funds of the Housing Development Fund, or of the operating loan fund, or of the land development fund, shall inure to the benefit of or be distributable to its directors or officers or other private persons except that the Housing Development Fund shall be authorized and empowered to pay reasonable compensation, other than to the directors, including the chairman, vice chairman and treasurer of the board of directors and the secretary of the board of directors, for services rendered and to make loans and exercise its other powers as previously specified in furtherance of its corporate purpose: Provided, That no such loans shall be made, and no property shall be purchased or leased from, or sold, leased or otherwise disposed of, to any director or officer of the Housing Development Fund.
(b) Notwithstanding any provision contained in paragraph (a) of this section, no loans shall be made by the Housing Development Fund to, and no property shall be purchased or leased from, or sold, leased or otherwise disposed of to, any corporation or other entity in which any officer or director is a stockholder or is otherwise financially interested, unless:
(1) The interest of such director or officer in such transaction is specifically and fully disclosed to the board of directors of the Housing Development Fund at the time it authorizes, approves or ratifies such transaction and the fact and nature of such interest are stated in the minutes of each meeting of the board of directors at which such transaction is considered;
(2) Such transaction is fair and reasonable to the Housing Development Fund; and
(3) In the case of a director, such director abstains from voting or written consent as to the authorization, approval or ratification of such transaction by the board of directors of the Housing Development Fund.
§31-18-22. Termination or dissolution.
Upon the termination or dissolution, all rights and properties of the Housing Development Fund, including the Operating Loan Fund, the Land Development Fund, the Mortgage Finance Bond Insurance Fund, and the Affordable Housing Fund, shall pass to and be vested in the State of West Virginia, subject to the rights of bondholders, lienholders, and other creditors.
§31-18-23. Services to the State of West Virginia and its political subdivisions.
(a) The Housing Development Fund may provide technical, consultative and project assistance services to the State of West Virginia and any of its political subdivisions and is hereby authorized to enter into contracts with the State of West Virginia and any of its political subdivisions to provide such services.
(b) The state of West Virginia or any political subdivision thereof is hereby authorized to enter into contracts with the Housing Development Fund for such services and to pay for such services as may be provided to it.
§31-18-23a. Bond issues under the Federal Revenue Adjustments Act of 1980.
Under subtitle A of Public Law 96-499, which is called the "Mortgage Subsidy Bond Tax Act," a subtitle of the "Revenue Adjustments Act of 1980," this state is permitted to issue up to $200,000,000 per year during the three year life of the act. Pursuant to that act, the Legislature hereby authorizes the West Virginia Housing Development Fund to issue bonds in the aggregate amount of$100,000,000 in the year 1983. County and municipal governments are hereby authorized to issue bonds in the amount of $100,000,000 during the year 1983: Provided, That the allocation to a county or municipality is to be based on a formula using the percentage of the state population residing in the county or municipality based on the 1980 census: Provided, however, That use of the allocation by a county or municipality is conditioned upon such county or municipality providing to the Housing Development Fund an analysis supporting the demand for the bonds to be issued or firm commitments from qualified lenders participating in the program. Each county and municipality shall have until September 30, 1983, to sell bonds allocated under this act, after which time all unused authority is then allocated to the Housing Development Fund. The Housing Development Fund shall determine the manner of reallocation for such unused authority or may itself issue bonds for all or part of the unused authority. Counties and municipalities choosing not to issue bonds may assign any unused authority to another county or municipality upon notification of such action to the Housing Development Fund. Such transfer must result in a sale of bonds by September 30, of that year. Any county or municipality may apply in the manner prescribed by the Housing Development Fund for reallocation or an additional allocation.
§31-18-24. Annual audit; reports to Joint Committee on Government and Finance; information to joint committee or legislative auditor.
The Housing Development Fund shall cause an annual audit to be made by an independent certified public accountant of its books, accounts, and records, with respect to its receipts, disbursements, contracts, mortgages, leases, assignments, loans, and all other matters relating to its financial operations, including those of the Operating Loan Fund, the Land Development Fund, and the Mortgage Finance Bond Insurance Fund. The person performing such audit shall furnish copies of the audit report to the commissioner of finance and administration, where they shall be placed on file and made available for inspection by the general public. The person performing such audit shall also furnish copies of the audit report to the Speaker of the House of Delegates, the President of the Senate, and the majority and minority leaders of both houses. The audit report shall be transmitted to the Speaker of the House of Delegates, the President of the Senate, and the majority and minority leaders of both houses of the Legislature electronically. Further, the report shall be provided to the legislative librarian to be posted to the legislative website. No hard copy of the audit report shall be issued; however, upon request a hard copy shall be provided.
In addition to the foregoing annual audit report, the Housing Development Fund shall also render every six months to the Joint Committee on Government and Finance a report setting forth in detail a complete analysis of the activities, indebtedness, receipts, and financial affairs of such fund and the Operating Loan Fund, the Land Development Fund, Affordable Housing Fund, and the Mortgage Finance Bond Insurance Fund. Upon demand, the Housing Development Fund shall also submit to the Joint Committee on Government and Finance or the Legislative Auditor any other information requested by such committee or the Legislative Auditor. The report shall be available electronically only, and no hard copy of the report shall be issued; however, upon request a hard copy shall be provided.
§31-18-25. Severability clause.
If any provision of this article or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the article, and to this end the provisions of this article are severable.
§31-18-26. Projects not to be deemed public improvements.
No project or business facility acquired, constructed, maintained, or financed in whole or in part by the Housing Development Fund shall be deemed to be a "public improvement" within the meaning of the provisions of article five-a, chapter twenty-one of this code, as a result of such financing.
§31-18-27. Documentary materials concerning trade secrets; commercial, financial, or personal information; confidentiality.
Any documentary material or data made or received by the Housing Development Fund for the purpose of furnishing assistance, to the extent that such material or data consists of trade secrets, commercial, financial or personal information regarding the financial position or business operation of such business or person, shall not be considered public records and shall be exempt from disclosure pursuant to the provisions of chapter twenty-nine-b of this code. Any discussion or consideration of such trade secrets, commercial, financial or personal information may be held by the Housing Development Fund in executive session closed to the public, notwithstanding the provisions of article nine-a, chapter six of this code: Provided, That the Housing Development Fund shall make publicly available the following information regarding executed loans: (1) the name of the debtor, (2) location(s) of the project, (3) amount of the loan or financial assistance provided by the fund, (4) the purpose of the loan or financial assistance, (5) the term, rate, and interest of the loan, and (6) the fixed assets which serve as security for the loan.
§31-18-28. West Virginia Property Rescue Initiative: findings; technical assistance and revolving loan program for removal of dilapidated housing; reporting required.
(a) The program set forth in this section shall be known as the "West Virginia Property Rescue Initiative".
(b) The Legislature finds that a great number of dilapidated housing structures exist throughout the state and that county and municipal officials often lack the training and resources to identify, purchase, remove, or rehabilitate these structures and return the property to a condition beneficial to their communities. The Legislature further finds that these structures contribute to increased crime in neighborhoods, including illicit drug use and sales; pose threats to health and safety; decrease the values of surrounding properties; and reduce the quality of life in their communities and neighborhoods. The Legislature further finds that improved properties expand housing opportunities, increase property values and enhance the quality of life in communities and neighborhoods.
(c) The Legislature finds that the housing development fund, as a public body corporate and the state's leading housing authority, has the expertise and resources to lead a property rescue initiative to assist counties and municipalities in removing or rehabilitating dilapidated housing and improving their communities and neighborhoods by providing technical assistance, training and consultation as well as needed financial resources.
(d) The housing development fund shall implement the West Virginia Property Rescue Initiative to provide technical assistance, training and consultation to counties and municipalities which include, but are not limited to, the following: (1) maintaining lists of contractors, developers, nonprofit organizations, disposal companies and land fills available to assist counties and municipalities in the removal or rehabilitation of dilapidated properties; (2) providing information on the use of the West Virginia Property Rescue Initiative in other jurisdictions; and (3) conducting or facilitating seminars in strategic areas of the state to encourage and inform community leaders in counties and municipalities on how to successfully use the West Virginia Property Rescue Initiative to improve their communities and neighborhoods individually and in combination with other counties or municipalities for economies of scale and efficient use of local resources.
(e) For the purpose of the West Virginia Property Rescue Initiative, the housing development fund shall establish and fund a revolving loan program to make funding available to counties and municipalities for the removal of dilapidated structures on such terms for repayment of loans, with or without interest, as the housing development fund finds appropriate and to provide technical assistance, training and consulting services to counties and municipalities regarding the identification, purchase, removal and rehabilitation of properties to maximize the benefits of the West Virginia Property Rescue Initiative on an ongoing basis, with a commitment by the housing development fund to deposit at least $5 million dollars to the West Virginia Property Rescue Initiative Revolving Loan Fund over a five year period beginning on July, 2015, at the rate of at least $1 million dollars per fiscal year.
(f) Notwithstanding any other provision to the contrary, the revolving loan fund established in this section shall not be considered or construed as an obligation of the state.
(g) To enhance the success of the West Virginia Property Rescue Initiative, the housing development fund may, as a form of its technical assistance, seek grants and awards of funding to be made to the housing development fund or directly to counties and municipalities for their property rescue initiatives, from public and private organizations and government agencies, federal and state, in order to provide both for additional funding for the property rescue revolving loan fund or the repayment of loans and for grants to counties and municipalities with dire need and limited resources such that special aid and funding is needed to begin and complete their local property rescue initiatives.
(h) The executive director of the housing development fund shall report on the West Virginia Property Rescue Initiative to the Joint Committee on Government and Finance annually during the initial five years of the West Virginia Property Rescue Initiative. At the end of the initial five years of the West Virginia Property Rescue Initiative, the housing development fund board of directors shall evaluate participation and success of the West Virginia Property Rescue Initiative as well as other aspects of the West Virginia Property Rescue Initiative in order determine whether and how to adjust services and levels of funding under this section.
§31-18A-1. Short title.
This article shall be known and may be cited as the "West Virginia Energy Conservation Revolving Loan Fund."
§31-18A-2. Legislative findings; declaration of policy and responsibility; purpose and intent of article.
It is hereby determined and declared as a matter of legislative finding: (a) That an energy shortage exists within the State of West Virginia; (b) that the energy shortage is severe in certain areas of the state and may become severe, from time to time, in other areas of the state; (c) that the cost to the consumer for energy usage continues to increase at an accelerated rate; (d) that the energy shortage has produced widespread unemployment, threatening the economic stability of this state; and (e) that these conditions are inimical to the health, welfare and prosperity of all residents of the state and to the sound growth of the state.
It is hereby declared to be the public policy and a responsibility of this state to assist its residents in improving the energy efficiency of their residential dwellings. It is the purpose and intent of the Legislature in enacting this article to provide low interest loans to residents of this state of low and moderate income, who own and occupy single family residential dwellings, as an incentive for the improvement of the energy efficiency of such dwellings.
The Legislature finds that the public policy and responsibility of the state as set forth in this section cannot be effectively attained without the funding, establishment, operation and maintenance of the energy conservation revolving loan fund.
§31-18A-3. Definitions.
As used in this article, unless the context otherwise requires:
(1) "Residential dwelling" means a single family residence located in the State of West Virginia, which it is determined by the Housing Development Fund can be substantially aided in the conservation of energy by the making of improvements financed with a loan under this article;
(2) "Eligible owner of a residential dwelling" means:
(a) Person or persons of low and moderate income who own and occupy a residential dwelling; or
(b) Person or persons of higher income who own and occupy a residential dwelling in such area or areas of this state which are determined by the West Virginia Housing Development Fund, in consultation with the Public Service Commission, by resolution, to be a critical energy shortage area; or
(c) Person or persons who own and occupy a residential dwelling and who because of age or disability are found and determined by the West Virginia Housing Development Fund, by resolution, to require assistance in improving the energy efficiency of such dwellings to insure their health, safety and welfare;
(3) "Housing development fund" means the West Virginia Housing Development Fund created and established by section four, article eighteen, chapter thirty-one of this code;
(4) "Revolving loan fund" means the West Virginia energy conservation revolving loan fund which is created and established by section six of this article;
(5) "Person or persons of low and moderate income" means a person or persons, irrespective of race, creed, national origin or sex, determined by the Housing Development Fund to require such assistance as is made available by this article on account of personal or family income not sufficient to afford to implement or install energy conservation materials or equipment designed to improve the energy efficiency of residential dwellings, and in making such determination the Housing Development Fund shall take into account the following: (a) The amount of the total income of such persons and families for housing energy needs; (b) the size of the family; (c) the cost and condition of the residential dwelling; and (d) the eligibility of such persons or families for federal housing energy conservation assistance of any type based upon low or moderate income basis.
§31-18A-4. Administration of revolving loan fund by West Virginia Housing Development Fund.
The West Virginia energy conservation revolving loan fund, established and authorized by section six of this article, shall be administered by the board of directors of the West Virginia Housing Development Fund, a public corporate body, created and established by section four, article eighteen, chapter thirty-one of this code.
§31-18A-5. Powers and duties of Housing Development Fund regarding revolving loan fund.
The West Virginia Housing Development Fund is hereby authorized and empowered:
(1) To accept appropriations, gifts, grants, bequests and devises, and to utilize or dispose of the same to carry out the purposes of this article;
(2) To make and execute contracts, releases, compromises, compositions and other instruments necessary or convenient for the exercise of its powers, or to carry out its purposes under this article;
(3) To collect reasonable fees and charges in connection with making and servicing loans, notes, obligations, commitments and other evidences of indebtedness, which fees shall be limited to the amounts required to pay the costs of the Housing Development Fund, including operating and administrative costs;
(4) To invest funds not required for immediate disbursement in any of the following securities:
(i) Direct obligations of or obligations guaranteed by the United States of America;
(ii) Bonds, debentures, notes or other evidences of indebtedness issued by any of the following agencies: Bank for cooperatives; federal intermediate credit banks; federal home loan bank system; Export-Import Bank of the United States; federal land banks; the Federal National Mortgage Association or the Government National Mortgage Association;
(iii) Public housing bonds issued by public agencies or municipalities and fully secured as to the payment of both principal and interest by a pledge or annual contributions under an annual contributions contract or contracts with the United States of America; or temporary notes issued by public agencies or municipalities or preliminary loan notes issued by public agencies or municipalities, in each case, fully secured as to the payment of both principal and interest by a requisite or payment agreement with the United States of America;
(iv) Certificates of deposit secured by obligations of the United States of America;
(v) Direct obligations of or obligations guaranteed by the State of West Virginia;
(vi) Direct and general obligations of any other state within the territorial United States, to the payment of the principal of and interest on which the full faith and credit of such state is pledged: Provided, That at the time of their purchase, such obligations are rated in either of the two highest rating categories by a nationally recognized bond rating agency; and
(vii) Any fixed interest bond, note or debenture of any corporation organized and operating within the United States: Provided, That such corporation shall have a minimum net worth of $15 million and its securities or its parent corporation's securities are listed on one or more of the national stock exchanges: Provided, however, That (1) such corporation has earned a profit in eight of the preceding ten fiscal years as reflected in its statements, and (2) such corporation has not defaulted in the payment of principal or interest on any of its outstanding funded indebtedness during its preceding ten fiscal years, and (3) the bonds, notes or debentures of such corporation to be purchased are rated "AA" or the equivalent thereof or better than "AA" or the equivalent thereof by at least two or more nationally recognized rating services such as Standard and Poor's, Dun & Bradstreet or Moody's;
(5) To sue and be sued;
(6) To promulgate and publish rules and regulations not inconsistent with the provisions of this article;
(7) To appoint such employees and consultants as it deems advisable and to fix their compensation and prescribe their duties;
(8) To acquire, hold and dispose of personal property for its purposes under this article;
(9) To enter into agreements or other transactions with any federal or state agency, any person, or any domestic or foreign partnership, corporation, association or organization;
(10) To sell, at public or private sale, any mortgage or other negotiable instrument or obligation securing a loan made under the provisions of this article;
(11) To establish guidelines to be complied with by any person, firm, association, partnership or corporation, engaged in supplying, retailing or installing energy conservation materials or equipment designed to improve the energy efficiency of residential dwellings to be improved with financing under this article;
(12) To approve any person, firm, association, partnership or corporation who shall enter into any bargain, agreement or contract to furnish or install energy conservation materials or equipment for a residential dwelling, the cost and expense of which shall be defrayed by a loan made pursuant to this article;
(13) To make loans in the manner and under the terms and conditions prescribed by this article to eligible owners of residential dwellings to defray the costs of financing the purchase and installation of energy conservation materials and equipment, designed to improve the energy efficiency of such dwelling;
(14) To establish and supervise an inspection program to assure the satisfactory nature of all materials and workmanship for energy efficiency improvements financed by loans made pursuant to this article and to utilize to the extent possible the services of municipal building inspectors;
(15) To enter into agreements with banks, public utilities and other entities for advertising the energy conservation revolving loan fund, for taking applications for loans from such fund, for supervising the execution of promissory notes, deeds of trust and other papers associated with the energy conservation revolving loan fund, for approving and inspecting energy conservation loan contracts to insure compliance with the provisions of this article, for accepting and transmitting loan payments, for the operation and administration of any other aspect of the energy conservation revolving loan fund established by this article and for reimbursing such banks, public utilities and other entities for any reasonable and necessary expenses incurred in the implementation of any such agreements.
§31-18A-6. Revolving loan fund created; purpose; investment of funds; loan agreements; expenditures.
(a) The board of directors of the Housing Development Fund shall create and establish a special revolving fund of moneys made available by appropriations, grants, contributions, bequests, devises, loan payments, interest and investment income, to be known as the energy conservation revolving loan fund and to be governed, administered and accounted for by the directors, officers and managerial staff of the Housing Development Fund as a special purpose trust account separate and distinct from any other moneys, fund or funds owned and managed by the Housing Development Fund.
(b) The purpose of the energy conservation revolving loan fund shall be to provide a source from which the Housing Development Fund may make loans to eligible owners of residential dwellings.
(c) The Housing Development Fund may invest and reinvest all moneys in the revolving loan fund in any investments authorized by section five of this article, pending the disbursement thereof in connection with loans made pursuant to this article.
(d) The Housing Development Fund may expend any income from loans or investments authorized by this article in payment or reimbursement of all expenses of the Housing Development Fund which, as determined in accordance with procedures approved by the board of directors, are fairly allocable to such financing or activities authorized by this article: Provided, That no funds shall be used to carry on propaganda or otherwise attempt to influence legislation.
§31-18A-7. Terms and conditions of loans from revolving loan fund.
No loans shall be made by the Housing Development Fund except to eligible owners of residential dwellings who meet reasonable criteria of credit worthiness as defined by the Housing Development Fund and in accordance with a written loan agreement which shall include, but not be limited to, the following terms and conditions:
(1) No loan shall be made under the provisions of this article, unless an affidavit shall be executed by the eligible owner asserting his title to the residential dwelling and submitted to the Housing Development Fund together with evidence of his source of title;
(2) The proceeds of all such loans shall be used only for financing the cost of improving the energy efficiency of residential dwellings through the installation or upgrading of insulation, storm windows and doors, caulking, weather stripping, heat pumps, or other energy conservation materials or equipment in such dwellings;
(3) All such loans shall be repaid in full over a period of time not to exceed three years and at a rate of interest not to exceed three percent;
(4) All such loans shall be limited to a maximum amount of $2,000 for each residential dwelling: Provided, That in no event shall the amount of the loan exceed the actual cost of materials purchased, or the actual cost of materials and labor furnished or supplied by any person, firm, association, partnership or corporation certified by the Housing Development Fund;
(5) Each such loan shall be evidenced by a negotiable promissory note executed and delivered by the eligible owner or owners and shall be secured by a deed of trust upon the property and dwelling improved by the proceeds of the loan: Provided, That in no event shall a certificate of title, title insurance or other title security be required;
(6) All notes and deeds of trust accepted as security for loans under this article shall be payable to the order of and for the use and benefit of the West Virginia Housing Development Fund;
(7) Payment of the loan proceeds shall be made by the Housing Development Fund jointly to the owner and any person, firm, association, partnership or corporation supplying and furnishing materials or labor and materials upon a determination by the Housing Development Fund and certification by the eligible owner that the workmanship and materials for energy efficiency improvements are satisfactory.
§31-18A-8. Prohibition on funds inuring to the benefit of or being distributable to the directors or officers.
No part of the funds of the energy conservation revolving loan fund shall inure to the benefit of or be distributable to the directors or officers of the Housing Development Fund except that the Housing Development Fund shall be authorized and empowered to pay reasonable compensation for services rendered and to make loans as previously specified in furtherance of its purposes under this article.
§31-18A-9. Termination or dissolution.
Upon termination or dissolution of the Housing Development Fund or the energy conservation revolving loan fund, all rights and properties held pursuant to the provisions of this article shall pass to and be vested in the State of West Virginia, subject to the rights of lienholders and other creditors.
§31-18A-10. Annual audit.
The Housing Development Fund shall cause an annual audit to be made of the energy conservation revolving loan fund by a resident independent certified public accountant of its books, accounts, and records, with respect to its receipts, disbursements, contracts, mortgages or deeds of trust, assignments, loans and all other matters relating to its financial operations of the revolving loan fund. The person, firm, association, partnership or corporation performing such audit shall furnish copies of the audit report to the commissioner of finance and administration, where they shall be placed on file and made available for inspection by the general public.
§31-18A-11. Severability clause.
If any provision of this article or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable.
§31-18B-1. Legislative intent.
The Legislature finds and declares that:
(1) The vast majority of West Virginians have pursued a goal of owning a home, a center of family life and family independence deeply cherished and highly valued.
(2) In many parts of the state there is a large number of single-family residential units that cannot presently be marketed because of high interest rates and adverse economic conditions, or because of having been declared to be a federal disaster area by the Federal Emergency Management Agency.
(3) In addition, the state and its inhabitants are suffering high unemployment and low income because of the depressed state of the housing market and because of its inability to attract new business. This situation adversely affects potential home buyers, home builders, skilled craftsmen, realtors and their employees and other citizens. These conditions also reduce state revenues and frustrate the laudable aspirations of many West Virginians to enjoy the pleasures of home ownership and pursue productive employment, or because of having been declared to be a federal disaster area by the Federal Emergency Management Agency.
(4) By the cooperative efforts of our citizens there is a large pool of resources held in trust by the state for the sole benefit of West Virginians, including funds reserved for workers injured in the course of employment.
(5) Some of these funds, particularly the workers' compensation fund, are invested under the actuarial assumption of a yield less than that of current market investments. Yet the current yield on some of these funds, and particularly the workers' compensation fund, is lower than the actuarially assumed interest rate, and has been for at least three years.
(6) The common good does not require that all of these funds be invested so as to yield the very highest investment return offered in the market, especially when the current rate of market interest is:
(a) So high that it stifles the legitimate aspirations and attainable dreams of so many West Virginians and West Virginia businesses; and
(b) So high that it encourages the flight of capital accumulated by West Virginians for the benefit of West Virginians to national markets where the only consideration is the highest rate of return.
(7) In these circumstances, prudence does not require that the state Board of Investments seek the highest rate of return on all investments. Rather, prudence requires that in investing federally tax-free funds the state Board of Investments should seek a rate of return commensurate with its public charter. Furthermore, prudence demands that the board immediately seek fiscally sound investments within the State of West Virginia which offer sound security and directly serve the hopes and aspirations in housing and employment of the inhabitants of this state.
(8) The survival and renewal of a vibrant market for single-family residential units and the opportunity to attract new businesses to the state is a sound and preferred investment for the resources held in trust by this state for its citizens. Such investments deserve precedence and encouragement, even at the expense of foregoing the highest rate of investment return, an investment return which the tax paying investor might gain in the current market place but which prudence dictates that the state Board of Investments need not pursue.
(9) The success of the undertakings required by this article will be amply demonstrated by: (a) The increased financial stability of the state, (b) the contribution which will occur when the dreams of hundreds of West Virginians are realized, (c) the intrinsic worth of enhancing the cooperative spirit of the inhabitants of this state in employment and housing, and (d) the enhancement of revenue to the state which will be generated by the commerce West Virginia seeks to stimulate. In addition, the rate of return realized by these funds will be at least as high as the actuarial assumptions, and, given the rates of return demonstrated over the past three years, probably higher than the current rate of return.
§31-18B-2. Establishment of state mortgage and industrial development investment pool; investment of workers' compensation funds and other funds in such pool; schedule of moneys invested; authority of state board of investments to invest funds from the pool in short-term investments; reversion of control of state board of investments.
(a) There is hereby created and established a "state mortgage and industrial development investment pool" into which moneys shall be paid as provided in this section. The state mortgage and industrial development investment pool shall consist of a portion of the moneys and funds entrusted to the state Board of Investments by the commissioner of workers' compensation and other state agencies and organizations, which funds are invested by the state Board of Investments in long-term securities according to the provisions of this code: Provided, That no moneys or funds from any pension plan shall be invested in the state mortgage and industrial development investment pool.
(b) Notwithstanding any of the restrictions of section nine, article six, chapter twelve, the state Board of Investments shall make available from the workers' compensation funds and other such funds which it invests, moneys for the state mortgage and industrial development investment pool. Such moneys shall be drawn from workers' compensation funds and other funds except pension funds currently invested by the state Board of Investments and shall be made available for investment on or before the dates established in subsection (c) of this section: Provided, That should the workers' compensation fund fall below $300,000,000, then no further transfers provided in this section be granted until the fund again reaches $400,000,000.
(c) The state Board of Investments shall make available for investment in the state mortgage and industrial development investment pool the funds identified in subsections (a) and (b) of this section according to the following schedule:
(1) On the effective date of this act, $25,000,000, of which $20,000,000 is to be deposited in the pool for investment by the Housing Development Fund and $5,000,000 is to be deposited in the pool for investment by the economic development authority.
(2) On October 1, 1982, $25,000,000, of which $20,000,000 is to be deposited in the pool for investment by the Housing Development Fund, and $5,000,000 is to be deposited in the pool for investment by the economic development authority.
(3) On January 1, 1983, $25,000,000, of which $10,000,000 is to be deposited in the pool for investment by the Housing Development Fund, and $15,000,000 is to be deposited in the pool for investment by the economic development authority.
(4) On April 1, 1983, $25,000,000, all of which is to be deposited in the pool for investment by the economic development authority.
Investments by the Housing Development Fund are to be made pursuant to the provisions of section three of this article, and by the economic development authority pursuant to section four of this article.
(d) The state board of investment may, after committing these funds to the state mortgage and industrial development investment pool, at the discretion of the Treasurer's Office, invest the moneys of such pool in any short-term investments as may be deemed to be prudent and proper until such funds are invested by the Housing Development Fund or the West Virginia economic development authority. The income from such short-term investments shall accrue to and be credited to the accounts from which such funds were drawn in proportion to the amount of funds so drawn.
(e) The funds invested in the state mortgage and industrial development pool shall be invested solely for the benefit of the accounts from which the funds are drawn in proportion to the amount so drawn. For purposes of crediting of investment returns to the proper account, the state Board of Investments is to consider the state mortgage and industrial development investment pool as it would any other long-term investment at a fixed rate of return.
(f) The Housing Development Fund and the West Virginia economic development authority may release the funds from the state mortgage and industrial development investment pool to the control of the state Board of Investments if it determines that lower interest rates than those now prevailing require that such funds cannot be competitively invested in first mortgages on residential property or industrial development projects located in the state.
§31-18B-3. Housing development fund to make available state mortgage and industrial development investment pool funds for mortgages on single-family residential units; limitations upon type and size of such mortgages.
(a) The Housing Development Fund shall make available at the interest rate specified in section six of this article, one half of the moneys from the state mortgage and industrial development investment pool for investment in mortgages on single-family residential units, twenty-five percent of which shall be designated and restricted, for a period of twelve months, to new and never occupied single-family residential units which shall, if not so used, revert to investments in other nonrestricted mortgages. For the purposes of this article, a single-family residential unit means a detached unit on a separate piece of land used solely for the housing of one family, and only one family, which family owns the dwelling and the land or has a mortgage thereupon, and also includes townhouses or row houses used by a family as a residential dwelling, and owned by the family.
(b) Loans made by the Housing Development Fund from the state mortgage and industrial development investment pool are to be made solely for the purpose of purchasing real estate upon which is situate a single-family unit, or for the construction of a single-family residential unit upon real estate by the buyer of such unit to provide housing for only himself and his family, or for the purpose of the payment of a loan theretofore made for the construction of a single-family residential unit, or for the purpose of purchasing real estate upon which is situate a single-family residential unit and making additions or improvements thereto: Provided, That none of these loans shall be used to refinance existing loans, except construction loans or loans made to such units situated in a federal disaster area as so declared by the Federal Emergency Management Agency. Each such loan must be secured by a first mortgage or first deed of trust upon such real property. Such mortgage or deed of trust shall be held by the Housing Development Fund or its assignee.
(c) Loans made pursuant to the provisions of this section may not exceed eighty-five percent of the appraised value of the real estate and single-family residential unit: Provided, That if the loan is for the purchase of a single-family residential unit for the purpose of making additions and improvements thereto, such loan shall be no more than eighty-five percent of the appraised value of the property including such improvements when made, as estimated by an appraiser retained by the fund.
(d) In no event may a loan obtained pursuant to this section be for an amount greater than $75,000.
(e) Mortgage loans made pursuant to the provisions of this section shall be insured for at least twenty percent of the amount of the loan by either an agency of the federal government or a private mortgage insurance company licensed in the state.
§31-18B-4. West Virginia economic development authority to make available state mortgage and industrial development investment pool funds for investment in industrial development; amount of funds available; interest rate specified.
(a) The West Virginia economic development authority may use for any investments authorized by sections seven and seven-a, article fifteen, chapter thirty-one of this code, up to one half of the funds of the state mortgage and industrial development investment pool: Provided, That the economic development authority shall deposit with the treasurer of the state for the credit of the state mortgage and industrial development pool such notes, security interests or bonds issued by the economic development authority evidencing the indebtedness of the authority to the pool.
(b) Such notes, security interests or bonds issued by the authority shall be secured by security equal to or better than one of the three highest rating grades by an agency which is nationally known in the field of rating corporate securities: Provided, That notes, security interests or bonds evidencing indebteness of $2 million or less may be secured by a letter of credit guarantee issued by a bank having an unsecured legal lending limit greater than $1 million.
(c) The interest rate and the maturity dates of the notes, security interests or bonds held by the treasurer for the state mortgage and industrial development investment pool shall be determined by the economic development authority according to the provisions of section eleven, article fifteen, chapter thirty-one of this code: Provided, That such interest rate shall not be less than the prior four-week auction average yield for thirteen-week treasury bills and such rate shall be valid for a term of not more than three years: Provided, however, That the economic development authority may determine a variable rate of interest to be adjusted no less frequently than semiannually, and such variable interest rate shall not be less than the prior four-week auction average yield for thirteen-week treasury bills.
§31-18B-5. Reversion to state Board of Investments of money not used for mortgages.
Should the Housing Development Fund or its agents fail to loan all or a portion of the funds made available pursuant to section two of this article within one year of the date those funds become a part of the state mortgage and industrial development investment pool, then that portion of the funds not invested shall revert to the exclusive control of the state Board of Investments and shall no longer be required to be available to the state mortgage and industrial development investment pool.
§31-18B-6. Interest rate charged by housing development fund; other charges; points .
(a) The interest charged for mortgage loans obtained according to the provisions of section three of this article shall not exceed the monthly index of long-term United States government bond yields for the calendar month preceding the date the commitment for such loan is made: Provided, That in no event shall the interest rate be more than twelve percent per annum, nor less than ten percent per annum. For the purposes of this section, the monthly index of long-term United States government bond yields means the monthly unweighted average of the daily unweighted average of the closing bid yield quotations in the over-the-counter market for all outstanding United States treasury bond issues which mature twenty years or more from the date the index is calculated, but shall not include such bonds as are redeemable at par for payment of federal estate taxes.
(b) The Housing Development Fund may charge such points to the seller of the real estate covered by the first mortgage deed or deed of trust as are necessary to offset costs of making the loan, including, but not limited to, the costs of processing the loan application and the costs of interest charges incurred between the commitment date of the loan and the date the property is actually purchased: Provided, That such points charged shall not exceed two points and shall be charged to the seller: Provided, however , That the real estate broker shall, from his or her commission, pay an amount equal to one point. The seller shall furnish to the fund satisfactory proof that he or she has not within the two years preceding the contract of the sale offered the house to the buyer for less than the sale price provided in the contract or sale between them. The proceeds from such points paid by the seller and broker to the Housing Development Fund, less actual Housing Development Fund expenses up to one half of one point, and less an amount equal to the first year cost for mortgage insurance required by section three of this article, shall be transmitted to the state Board of Investments as provided in section ten of this article.
§31-18B-7. Term of mortgage loans; renegotiation after ten years; promulgation of legislative rules.
(a) The term of the loans made pursuant to the provisions of this article shall be not less than twenty nor more than thirty years and shall be assumable by a person financially qualified according to the provisions of section eight of this article.
(b) The Housing Development Fund may include in the first mortgage agreement or deed of trust a provision which allows it to renegotiate the rate of return after ten years. Such provision may be written to allow the Housing Development Fund to increase the interest rate for the remainder of the loan to the then monthly index of long-term United States government bond yields as defined in section six of this article for the calendar month preceding registration, as defined in section six of this article, plus two percent per annum: Provided , That the maximum renegotiated rate may not exceed fourteen percent per annum: Provided, however , That if the holder of the mortgage presents evidence that his average gross income for the two years prior to the renegotiation is no more than one sixth greater than his income at the time the loan was made, then the loan shall not be renegotiated.
(c) The Housing Development Fund shall propose legislative rules according to the provisions of chapter twenty-nine-a of this code to implement this section.
§31-18B-8. Persons eligible for loans from the state mortgage and industrial development investment pool; Housing Development Fund to have sole discretion in determining who is to receive loans; discrimination prohibited .
(a) Any person is entitled to receive a first mortgage or deed of trust from the state mortgage and industrial development investment pool for real estate situated within the boundaries of the state if the person's family income for each of the two years preceding the commitment year is $50,000 or less: Provided, That such person must be purchasing the real estate for use as his or her single- family residential unit as defined in section three of this article: Provided, however, That such person is qualified for the loan as provided in this section.
(b) The Housing Development Fund shall have sole discretion in determining who is qualified to receive mortgage loans from the state mortgage and industrial development investment pool, subject to the provisions of section fourteen of this article. The Housing Development Fund shall establish by interpretive rule promulgated pursuant to the provisions of chapter twenty-nine-a guidelines for the exercise of this discretion.
(c) The Housing Development Fund shall issue mortgage loans to such qualified buyers on the basis of the first of such buyers in the order in which the applications are approved.
(d) In view of the uncertain economic conditions prevailing, the fund may propose legislative rules which, if promulgated, suspend all or any of the provisions of this section.
(e) The Housing Development Fund shall not discriminate against buyers on the basis of race, sex, national origin, religion or location in the state in which the buyer resides.
§31-18B-9. Housing development fund may contract with private institutions to place and service loans or may itself provide such servicing; increasing interest rate and payment of a portion of interest to cover cost of servicing.
(a) The Housing Development Fund may contract with private mortgage companies, savings and loan associations or banks to provide for the placement, origination and servicing of the mortgages described in this article or the Housing Development Fund may provide such servicing: Provided, That such institutions must be licensed to do business in West Virginia and, in the case of a savings and loan, or a bank, must be under the supervision of the department of banking of this state as provided in chapter thirty-one-a of this code or must be a national bank or a federally insured savings and loan. Such institutions shall follow the same restrictions as the Housing Development Fund, and shall act only as the agent for such.
(b) Notwithstanding the maximum interest rate specified in section six of this article, the Housing Development Fund is authorized to increase the interest rate, up to one half of one percent over the rate provided in section six to pay the cost of placing and servicing the mortgages.
(c) If the Housing Development Fund so determines, one of the points provided for in section six of this article may be paid to the private mortgage company, bank or savings and loan to cover the expense of origination of the loan.
§31-18B-10. Disposition of interest income and repayments of principal.
(a) The interest received from mortgage payments made pursuant to the provisions of this article shall be transmitted to the state Board of Investments monthly.
(b) Such interest shall be treated by the state Board of Investments as an investment return, and shall be credited to the workers' compensation account or other appropriate accounts in the same manner as interest received on other investments.
(c) The funds from repayment of principal of mortgage loans shall be reinvested by the Housing Development Fund according to the provisions of section five of this article. Funds which have been repaid to the state mortgage and industrial development investment pool and not reinvested in mortgages within one year shall revert to the sole control of the state Board of Investments and shall no longer be considered part of the state mortgage and industrial development investment pool.
§31-18B-11. Procedural rules required.
The Housing Development Fund may promulgate procedural rules pursuant to chapter twenty-nine-a which describe procedures used to procure a loan pursuant to the provisions of this article and to introduce such forms as may be required.
§31-18B-12. Rules of construction and interpretation for prompt implementation of this article.
It is the intent of the Legislature that the Housing Development Fund shall proceed with the implementation of this article promptly upon the effective date of this article under the provisions of this section and of Enrolled Committee Substitute for Senate Bill No. 409, enacted at the regular session of the Legislature in the year one thousand nine hundred eighty-two.
Notwithstanding the provisions of sections seven and eight of this article for the promulgation of legislative rules and notwithstanding any contrary provisions of chapter twenty-nine-a of this code:
(1) The Housing Development Fund may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to implement this article. Any such emergency rule, whether procedural, interpretive or legislative, shall be effective upon filing thereof in the state register. No findings of circumstances to justify such emergency rules shall be required; such emergency rules shall be deemed to have been promulgated to comply with a time limitation established by this code. No action shall lie for de novo or other review of such rule to contest or question the existence of circumstances justifying the promulgation of an emergency rule nor to challenge the validity of such rule because of its classification as an emergency rule: Provided, That no such rule shall suspend the provisions of section eight of this article.
(2) Any deed, deed of trust, mortgage or other instrument or document utilized in connection with any transaction arising under or affected by this article may contain provisions related to any emergency rule promulgated under this section and any extension or amendment thereof and shall, to the extent the instrument or document so provides, fully bind and be enforceable by the parties thereto as if such rule had been properly made effective under law and whether or not such rule thereafter expires or is revoked: Provided, That no such provision or agreement under this subdivision shall suspend the provisions of this article or exceed its limitations.
§31-18C-1. Short title.
This article shall be known and may be cited as the "West Virginia Veterans' Mortgage Fund Act."
§31-18C-2. Legislative findings; purpose and intent of article.
It is hereby found, determined and declared as a matter of legislative finding: (a) That veterans, who have sacrificed in the service of their country valuable years of their lives and considerable earning potential, constitute a readily identifiable and particularly deserving segment of this state's population; (b) that by making additional housing loans available to eligible veterans, limited below-market rate private home loan funds will be more readily available to those qualified to receive such loans; and (c) that the provisions of the Qualified Veterans Housing Bond Amendment of 1984 authorize the Legislature to enact legislation to establish a fund for the purpose of making loans to qualified veterans.
It is hereby declared to be the public policy of this state to assist its qualified veterans in financing owner-occupied residences. It is the purpose and intent of the Legislature in enacting this article to provide loans to qualified veterans of this state to finance owner-occupied single-family residential dwellings, as a recognition of their sacrifice and service.
The Legislature finds that the public policy of the state as set forth in this section cannot be effectively attained without the funding, establishment, operation and maintenance of the veterans' mortgage fund, and further, that although federal law now effectively prohibits the issuance of tax-exempt bonds to finance the operation of the veterans' mortgage fund program, at such time as federal law is amended so as to permit the issuance of such bonds, because of the critical need to provide such financing for veterans and because of the possibility that Congress might at any time thereafter again take action which would prohibit the operation of the veterans' mortgage fund program, an emergency will exist, requiring that any procedural, interpretive or legislative rules determined by the West Virginia Housing Development Fund to be necessary for the administration of the veterans' mortgage fund program, be promulgated by the West Virginia Housing Development Fund as emergency rules, in accordance with and subject to the provisions of section fifteen, article three, chapter twenty-nine-a of this code. This article authorizes the issuing and selling of general obligation bonds of the state secured by the general credit and taxing power of the state to be issued to provide financing for mortgage loans to qualifying veterans.
§31-18C-3. Definitions.
As used in this article, unless the context otherwise requires:
(1) "Bond" means any veterans' mortgage bond, a state general obligation bond issued pursuant to this article;
(2) "Housing development fund" means the West Virginia Housing Development Fund created and established under article eighteen, chapter thirty-one of this code;
(3) "Lending institution" means a bank, trust company, savings bank, national banking association, savings and loan association, building and loan association, mortgage bank, mortgage company, credit union, life insurance company or other financial institution that customarily provides service or aids in the financing of mortgages on single-family residential housing which has been approved for participation in the program by the Housing Development Fund; the term includes a holding company for any of the foregoing;
(4) "Loan" means a veterans' mortgage loan to finance the purchase, construction, improvement or rehabilitation of a residential dwelling, made or acquired by the Housing Development Fund under this article, in the name of and on behalf of the state, secured by a deed of trust or mortgage on such residential dwelling;
(5) "Outstanding bond" means a bond which has been issued pursuant to this article and has not been repaid, but does not include bonds which are to be paid from designated moneys or securities which are irrevocably held in trust solely for such purpose;
(6) "Program" means the veterans' mortgage fund program administered by the Housing Development Fund pursuant to this article;
(7) "Residential dwelling" means a single-family residence located in the state, in which a veteran intends to reside as his or her principal residence;
(8) "State" means the State of West Virginia; and
(9) "Veteran" means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable.
§31-18C-4. Veterans' mortgage fund created; purpose.
(a) There is hereby created and established under the jurisdiction of the Office of the Treasurer of the state a veterans' mortgage fund. All moneys resulting from the sale of bonds pursuant to this article shall be credited to such fund.
(b) For the purpose of creating and maintaining a fund to provide loans for veterans in accordance with this article, the state shall issue its negotiable bonds to provide funds for a veterans' mortgage fund loan program to be made pursuant to this article.
§31-18C-5. Money and interests included in the veterans' mortgage fund.
(a) The veterans' mortgage fund shall include:
(1) Any interest of the state in all loans made to veterans pursuant to the program including any guaranty or insurance thereon or on the homes or any mortgage-backed certificates or like instruments taken in exchange therefor, until the principal amount of such loans together with any interest and penalties due have been received by the state;
(2) The proceeds from the issuance and sale of such bonds;
(3) Income, rents and any other pecuniary benefits received by the state as a result of making or acquiring veterans' mortgage loans;
(4) Sums received by way of indemnity or forfeiture for the failure of any bidder for the purchase of any such bonds to comply with his bid and accept and pay for such bonds;
(5) Interest received from investments of any such money including earnings received on bond proceeds prior to disbursement for the purchase of loans; and
(6) Any equitable interest in properties encumbered under this program.
(b) Money in the veterans' mortgage fund shall be deposited in the State Treasury to the credit of the veterans' mortgage fund.
(c) Money in the fund shall be held in the following accounts:
(1) A loan account, into which shall be deposited the proceeds from the issuance and sale of bonds, from which loans shall be made or repaid; and
(2) A general account, into which shall be deposited all other money properly credited to the fund, from which shall be paid the principal of and interest on the bonds, and all expenses relating to the administration and operation of such fund.
§31-18C-6. Veterans' mortgage bonds; amount; terms of bonds; when may issue.
(a) Bonds of the state, under authority of the Qualified Veterans Housing Bond Amendment of 1984, are hereby authorized to be issued and sold for the sole purpose of raising funds for the veterans' mortgage fund, to be used for financing loans. No such bonds may be issued, however, unless they are part of an issue described in a written declaration executed by the Governor and filed in the office of the Secretary of State. The aggregate annual amount payable on all such bonds, including both principal and interest, shall be limited such that the debt service accruing on such bonds in any fiscal year shall not exceed $35 million exclusive of any amounts payable on such bonds for which moneys or securities have been irrevocably set aside and dedicated solely for the purpose of such payment. The total proceeds of each bond sale shall be deposited in the manner hereinafter provided and shall be earmarked, designated and used for the purposes of this article.
(b) The description contained in any declaration with respect to an issue of bonds hereunder shall specify that the veterans' mortgage fund program is to be financed through the issuance of the bonds, the estimate of the cost of loans, the aggregate amount of outstanding bonds which may at any point in time constitute a part of such issue, the time or times and manner of sale of such bonds, and the particular terms of such bonds, or the manner in which such terms will be determined, including the date or dates, time or times of issuance, time or times and amount or amounts of maturity or maturities, specified or variable rate or rates of interest, the form of such bonds and provisions for registration or exchange, if applicable, the method and manner of payment of such bonds, the provisions, if any, for redemption or renewal of such bonds, and specifying such other similar matters as the Governor may determine to be necessary and appropriate in connection with the sale and issuance of the bonds.
(c) Such bonds shall be executed by the Governor under the great seal of the state, attested by the signature of the Secretary of State, and the coupons, if any, attached thereto shall be authenticated by the signature of the Governor. Such signatures may be by facsimile signature, but, unless provision has been made for the authentication thereof by a bond registrar determined to be responsible by the Governor, each bond shall bear at least one manual signature.
(d) Prior to the preparation of definitive bonds, the Governor may under like restrictions issue temporary bonds with or without coupons, exchangeable for definitive bonds upon the issuance of the latter. Such bonds may be issued without any other proceedings, or the happening of any other conditions or things than those proceedings, conditions or things which are specified and required by this article or by the Constitution of the state.
§31-18C-7. Pledge of credit of state and security for bonds.
(a) The state covenants and agrees with the holders of the bonds issued pursuant hereto as follows: (1) That such bonds shall constitute a direct and general obligation of the state; (2) that the full faith and credit of the state is hereby pledged to secure the payment of the principal of and interest on such bonds; (3) that an annual state tax shall be collected in an amount sufficient to pay, as it may accrue, the interest on such bonds and the principal thereof; and (4) that such tax shall be levied in any year only to the extent that the moneys in the veterans' mortgage fund irrevocably set aside for and applied to the payment of the interest on and principal of said bonds becoming due and payable in such year are insufficient therefor.
(b) In addition, in connection with any issue of bonds hereunder, the Governor may pledge or assign as security for the payment of the principal of or interest on such bonds, any of the following:
(1) The proceeds of any such bonds pending their use or of bonds which may be issued to renew such bonds;
(2) The loans made with the proceeds of such bonds including all collateral security for the payment of such loans;
(3) The proceeds of any mortgage or other insurance or guaranty or letters of credit or similar arrangements undertaken in connection with the financing of the program; and
(4) Any other assets, including certificates of any entity approved by the Governor received in exchange for loans pursuant to subdivision (k), section sixteen of this article, specifically designated for the purpose of paying any such principal or interest.
(c) Any such pledge or assignment by the Governor shall be valid and binding from the time it is made, and the lien of such pledge or assignment shall be enforceable and need not be perfected by delivery or any filing or further act. Such lien shall be valid against all parties having claims of any kind in tort, contract or otherwise, irrespective of whether such parties have notice of the lien of such pledge or assignment.
§31-18C-8. Legality for investment; tax exemption.
(a) The bonds are hereby made securities in which all insurance companies and associations, and other persons carrying on an insurance business, all banks, bankers, trust companies, building and loan associations, savings and loan associations, investment companies and other persons carrying on a banking business, and other persons, except administrators, guardians, executors, trustees and fiduciaries, who are now or who may hereafter be authorized to invest in bonds or other obligations of the state, may properly and legally invest funds including capital in their control or belonging to them.
(b) The bonds and the income therefrom shall at all times be exempt from taxation.
§31-18C-9. Listing by Auditor; agent for registration.
All bonds issued under this article shall be separately listed by the Auditor of the state in books provided for the purpose, in each case giving the date, number, character and amount of obligations issued, and in case of registered bonds, the name and post office address of the person, firm or corporation registered as the owner thereof, but the Governor may, in his declaration with respect to such bonds, designate an agent within or without the state for the purpose of registration of transfer of such bonds.
§31-18C-10. Veterans' loan payments used to pay bonds and interest; investment of remainder.
(a) There shall be paid into the general account in the veterans' mortgage fund all money from any and all loan payments made by veterans under the terms of the loans for the purpose of paying the interest on and principal of such bonds and from any other source whatsoever which is made liable by law or contract for the payment of the principal of such bonds or the interest thereon.
(b) Moneys from time to time in the general account in the fund in excess of the amount currently required for the payment of the due principal of, or interest on, the bonds, and the current expenses of the fund shall be invested by the State Treasurer at the direction of the Governor.
§31-18C-11. Sale by Governor; minimum price.
The Governor shall sell the bonds herein authorized at such time or times as he may determine necessary to provide funds for the making or purchase of loans, as herein provided, and after consultation with the Housing Development Fund regarding the status and requirements of the program and subject to the limitations contained in this article. All sales shall be at not less than at such price or prices as he shall determine to be in the best interest of the state.
§31-18C-12. Auditor to be custodian of unsold bonds.
The State Auditor shall be the custodian of all unsold bonds issued pursuant to the provisions of this article.
§31-18C-13. Bond counsel and financial advisor.
The Governor shall designate the bond counsel responsible for the issuance of a final approving opinion regarding the legality of the sale of such bonds and may at his discretion designate a financial advisor to the Governor for the issuance and sale of such bonds.
§31-18C-14. Approval and payment of all necessary expenses.
All necessary expenses, including legal expenses incurred in the execution of this article, to the extent such expenses are not otherwise paid out of the veterans' mortgage fund, shall be paid out of the General Fund of the state on warrants of the Auditor of the state drawn on the State Treasurer.
§31-18C-15. Administration of veterans' mortgage fund program by West Virginia Housing Development Fund.
The program shall be administered by the West Virginia Housing Development Fund.
§31-18C-16. Powers and duties of Housing Development Fund regarding veterans' mortgage fund.
The West Virginia Housing Development Fund is hereby authorized and empowered:
(a) To make available the moneys from the veterans' mortgage fund for the making or purchase of loans in the name of and on behalf of the state;
(b) To make and execute contracts, including contracts for the purchase of bond or pool insurance, releases, compromises, compositions and other instruments necessary or convenient for the exercise of its powers, or to carry out its purposes under this article;
(c) To impose and collect reasonable fees and charges in connection with the making, purchase and servicing of loans, which fees and charges shall be limited to the amounts required to pay the expenses related to the administration of the program, including operating and administrative costs and any bond guaranty fees;
(d) To employ such agents and consultants as it deems advisable and to fix their compensation and prescribe their duties with respect to the program;
(e) To acquire, hold and dispose of personal and real property for its purposes under this article;
(f) To enter into agreements or other transactions with any federal or state agency, any lending institution or any other person, partnership, corporation, association or organization;
(g) To sell, at public or private sale, any loan or other negotiable instrument or obligation securing a loan made under the provisions of this article;
(h) To make loans or to purchase loans from lending institutions in the manner and under the terms and conditions prescribed by this article;
(i) To enter into agreements with lending institutions and other entities for advertising the program, for taking applications for loans, for originating loans in the name of the state or in the name of such lending institution, for supervising the execution of promissory notes, deeds of trust and other documents and agreements associated with the program, for accepting and transmitting loan payments and otherwise servicing loans, for the operation and administration of any other aspect of the program or to operate and administer any and all aspects of the program;
(j) To reimburse itself or to pay such lending institutions or other entities pursuant to any such agreements for any reasonable and necessary fees and expenses incurred in the operation and administration of the program; and
(k) To exchange loans for certificates issued by an entity approved by the Governor for amounts and on terms and conditions acceptable to the Governor.
§31-18C-17. Terms and conditions of loans from veterans' mortgage fund.
No loans shall be made or acquired by the Housing Development Fund except loans to veterans who meet reasonable criteria of creditworthiness as defined by the Housing Development Fund and in accordance with the following terms and conditions, among other terms and conditions which the Housing Development Fund shall require that:
(a) No loan shall be made unless an affidavit shall be executed by the veteran establishing his eligibility and submitted to the Housing Development Fund together with evidence of his or her eligible status;
(b) The proceeds of all loans shall be used only for financing the purchase of residential dwellings by veterans;
(c) All loans shall be repaid in full over a term not to exceed thirty years plus a reasonable construction period in the case of a construction loan, and at a rate of interest determined by the Housing Development Fund, which may set the interest rate to provide a margin over the rate paid on the bonds issued under this article. The difference between the interest rate on the loans and the interest rate on such bonds may be used in whole or in part to defray the expense of administering the program;
(d) The principal amount of each loan shall be limited to the appraised value of the residential dwelling;
(e) Each loan shall be evidenced by a negotiable promissory note executed and delivered by the veteran and shall be secured by a first lien deed of trust upon the residential dwelling financed by the proceeds of the loan, subject only to such exceptions as shall be acceptable to the Housing Development Fund; and
(f) All notes and deeds of trust accepted as security for loans under this article shall be payable to the order of and for the use and benefit of the state.
The Housing Development Fund is hereby empowered and authorized to propose and promulgate such rules and regulations as it determines are necessary or desirable in the administration of the program, including procedural, interpretive, legislative and emergency rules.
§31-18C-18. Prohibition of funds inuring to the benefit of or being distributable to the directors or officers.
No part of the funds of the veterans' mortgage fund shall inure to the benefit of or be distributable to the directors or officers of the Housing Development Fund or other private persons except that the Housing Development Fund shall be authorized and empowered to pay reasonable compensation for services rendered, and to make loans as previously specified in furtherance of its purposes under this article: Provided, That no such loans shall be made to and no property shall be purchased or leased from, or sold, leased or otherwise disposed of to any director or officer of the Housing Development Fund.
§31-18C-19. Annual audit.
The Housing Development Fund shall cause an annual audit to be made by an independent certified public accountant of the books, accounts and records of the program, and with respect to the receipts, disbursements, contracts, mortgages or deeds of trust, assignments, loans and all other matters relating to its operation of the program. The person, firm, association, partnership or corporation performing such audit shall furnish copies of the audit report to the treasurer, where such audit report shall be placed on file and made available for inspection by the general public.
§31-18D-1
Repealed
Acts, 2018 Reg. Sess., Ch. 116.
§31-18D-2
Repealed
Acts, 2018 Reg. Sess., Ch. 116.
§31-18D-3
Repealed
Acts, 2018 Reg. Sess., Ch. 116.
§31-18D-4
Repealed
Acts, 2018 Reg. Sess., Ch. 116.
§31-18D-5
Repealed
Acts, 2018 Reg. Sess., Ch. 116.
§31-18D-6
Repealed
Acts, 2018 Reg. Sess., Ch. 116.
§31-18D-7
Repealed
Acts, 2018 Reg. Sess., Ch. 116.
§31-18D-8
Repealed
Acts, 2018 Reg. Sess., Ch. 116.
§31-18D-9
Repealed
Acts, 2018 Reg. Sess., Ch. 116.
§31-18D-10
Repealed
Acts, 2018 Reg. Sess., Ch. 116.
§31-18D-11
Repealed
Acts, 2018 Reg. Sess., Ch. 116.
§31-18D-12
Repealed
Acts, 2018 Reg. Sess., Ch. 116.
§31-18D-13
Repealed
Acts, 2018 Reg. Sess., Ch. 116.
§31-18D-14
Repealed
Acts, 2018 Reg. Sess., Ch. 116.
§31-18D-15
Repealed
Acts, 2018 Reg. Sess., Ch. 116.
§31-18E-1. Short title.
This article may be known and cited as the West Virginia Land Reuse Agency Authorization Act.
§31-18E-2. Legislative findings.
The Legislature finds and declares that:
(1) Strong communities are important to the social and economic vitality of this state. Whether urban, suburban or rural, many communities are struggling to cope with vacant, abandoned and tax-delinquent properties.
(2) Citizens of this state are affected adversely by vacant, abandoned and tax-delinquent properties, including properties which have been vacated or abandoned due to mortgage foreclosure.
(3) Vacant, abandoned and tax-delinquent properties impose significant costs on neighborhoods, communities, municipalities and counties by lowering property values, increasing fire and police protection costs, decreasing tax revenues and undermining community cohesion.
(4) Vacant, abandoned and tax-delinquent properties contribute to blight, invite crime and pests and provide unsafe play spaces.
(5) There is an overriding public need to confront the problems caused by vacant, abandoned and tax-delinquent properties through the creation of new tools to enable municipalities and counties to turn vacant, abandoned and tax-delinquent spaces into vibrant places.
(6) Land reuse agencies, often called land banks in other jurisdictions, are one of the tools that municipalities and counties may use to facilitate the return of vacant, abandoned and tax-delinquent properties to productive use.
§31-18E-3. Definitions.
As used in this article:
(1) “Board” means the board of directors of a land reuse agency;
(2) “Deconstruct” means to attempt to remove salvageable pieces of a housing unit prior to or as part of demolition or renovation;
(3) “Financial institution” means a bank, savings association, operating subsidiary of a bank or savings association, credit union, association licensed to originate mortgage loans or an assignee of a mortgage or note originated by such an institution;
(4) “Land reuse agency” means a public body established under this article;
(5) “Land reuse jurisdiction” means: (A) A county or municipality in this state; or (B) two or more municipalities or counties that enter into an intergovernmental cooperation agreement to establish and maintain a land reuse agency;
(6) “Municipal land bank” means a department or agency of a municipality, or an entity lawfully created by a municipality, engaged in activities designed to address issues related to vacant, abandoned and tax-delinquent real property, including but not limited to, the purchase, rehabilitation, improvement or sale of such properties for the purpose of eliminating blight and returning those properties to productive use.
(7) “Municipality” means a municipality as defined in section two, article one, chapter eight of this code; and
(8) “Real property” means all lands, including improvements and fixtures on them and property of any nature appurtenant to them or used in connection with them and every estate, interest and right, legal or equitable, in them, including terms of years and liens by way of judgment, mortgage or otherwise, and indebtedness secured by the liens.
§31-18E-4. Creation and existence.
(a) Authority. -- A land reuse jurisdiction may elect to create a land reuse agency by the adoption of an ordinance to create a binding legal obligation. The ordinance must specify the type of entity created and the following:
(1) The name of the land reuse agency;
(2) The number of members of the board;
(3) The names of individuals to serve as initial members of the board;
(4) The qualifications, manner of selection or appointment and terms of office of members of the board;
(5) The manner by which residents will be provided an opportunity to have input into the land reuse agency decision-making process; and
(6) Additional terms and conditions the land reuse jurisdiction deems reasonable and necessary for operation of the land reuse agency that are not inconsistent with this article.
(b) Filing. -- The governing body of the land reuse jurisdiction which creates a land reuse agency shall file a copy of the ordinance with the West Virginia Housing Development Fund and with the Secretary of State. After receipt of the ordinance, the Secretary of State shall issue the appropriate documentation indicating the formation of the entity.
(c) Combinations. -- (1) The authority under subsection (a) of this section may be exercised in combination pursuant to an intergovernmental cooperation agreement by:
(A) More than one land reuse jurisdiction; or
(B) A land reuse jurisdiction and one or more municipalities or counties.
(2) If a land reuse agency is established under subdivision (1) of this subsection, the intergovernmental cooperation agreement must specify matters identified in subsection (a) of this section.
(d) Limitation. -- Except as set forth in subsection (c) of this section, if a county establishes a land reuse agency, the land reuse agency may acquire real property only in those portions of the county located outside of the geographical boundaries of any other land reuse agency established by another land reuse jurisdiction located partially or entirely within the county.
(e) Legal status of land reuse agency. -- A land reuse agency:
(1) Is a public body corporate and politic, exercising public and essential governmental functions, and having all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this article; and
(2) Exists until terminated and dissolved under section fourteen of this article.
(f) Collaboration. -- A land reuse agency, a political subdivision and another municipal entity may enter into an intergovernmental cooperation agreement relative to the operations of a land reuse agency.
§31-18E-5. Board of directors of a land reuse agency.
(a) Membership. -- A board shall consist of an odd number of members and be not less than five members nor more than eleven members. Unless restricted by the actions or agreements specified in section four of this article and subject to the limits stated in this section, the size of the board may be adjusted in accordance with bylaws of the land reuse agency.
(b) Eligibility to serve on board. --
(1) Notwithstanding any law to the contrary, a public officer is eligible to serve as a board member, and the acceptance of the appointment neither terminates nor impairs that public office;
(2) A municipal employee is eligible to serve as a board member;
(3) An established land reuse agency board shall include at least one voting member who:
(A) Is a resident of the land reuse jurisdiction;
(B) Is not a public official or municipal employee; and
(C) Maintains membership with a recognized civic organization within the land reuse jurisdiction;
(4) A member removed under subdivision (3), subsection (d) of this section is ineligible for reappointment to the board unless the reappointment is confirmed unanimously by the board;
(5) As used in this subsection, the term "public officer" means an individual who is elected to office.
(c) Officers. -- The members of the board shall select annually from among their members a chair, vice chair, secretary, treasurer and other officers as the board determines.
(d) Rules. -- The board shall establish rules on all of the following:
(1) Duties of officers;
(2) Attendance and participation of members in its regular and special meetings;
(3) A procedure to remove a member by a majority vote of the other members for failure to comply with a rule; and
(4) Other matters necessary to govern the conduct of a land reuse agency.
(e) Vacancies. -- A vacancy on the board shall be filled in the same manner as the original appointment. Upon removal under subdivision (3), subsection (d) of this section, the position becomes vacant.
(f) Compensation. -- Board members serve without compensation. The board may reimburse a member for expenses actually incurred in the performance of duties on behalf of the land reuse agency.
(g) Meetings. -- (1) The board shall meet as follows:
(A) In regular session according to a schedule adopted by the board;
(B) In special session:
(I) As convened by the chair; or
(ii) Upon written notice signed by a majority of the members;
(2) A majority of the board, excluding vacancies, is a quorum. Physical presence is required under this paragraph.
(h) Voting. -- (1) Except as set forth in subdivision (2) or (3) of this subsection or elsewhere in this article, action of the board must be approved by the affirmative vote of a majority of the board present and voting.
(2) Action of the board on the following matters must be approved by a majority of the entire board membership:
(A) Adoption of bylaws;
(B) Adoption of rules under subsection (d) of this section;
(C) Hiring or firing of an employee or contractor of the land reuse agency. This function may, by majority vote of the entire board membership, be delegated by the board to a specified officer or committee of the land reuse agency;
(D) Incurring of debt;
(E) Adoption or amendment of the annual budget; or
(F) Sale, lease, encumbrance or alienation of real property or personal property with a value of more than $50,000.
(3) A resolution under section fourteen of this article, relating to dissolution of a land reuse agency, must be approved by two thirds of the entire board membership.
(4) A member of the board may not vote by proxy.
(5) A member may request a recorded vote on any resolution or action of the land reuse agency.
(i) Immunity. -- A land reuse jurisdiction which establishes a land reuse agency and a municipality or county which are parties to an intergovernmental cooperation agreement establishing a land reuse agency shall not be liable personally on the bonds or other obligations of the land reuse agency. Rights of creditors of a land reuse agency are solely against the land reuse agency.
§31-18E-6. Staff of the land reuse agency.
(a) Employees. -- A land reuse agency may employ or enter into a contract for an executive director, counsel and legal staff, technical experts and other individuals and may determine the qualifications and fix the compensation and benefits of those employees.
(b) Contracts. -- A land reuse agency may enter into a contract with a municipality or county for:
(1) The municipality or county to provide staffing services to the land reuse agency; or
(2) The land reuse agency to provide staffing services to the municipality or county.
§31-18E-7. Powers of the land reuse agency.
A land reuse agency is a public body, corporate and politic, exercising public and essential governmental functions, and having all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this article, including but not limited to the following:
(1) To adopt, amend and repeal bylaws for the regulation of its affairs and the conduct of its business;
(2) To sue and be sued in its own name and be a party in a civil action. This paragraph includes an action to clear title to property of the land reuse agency;
(3) To adopt a seal and to alter the same at pleasure;
(4) To borrow from federal government funds, from the state, from private lenders or from municipalities or counties, as necessary, for the operation and work of the land reuse agency;
(5) To issue negotiable revenue bonds and notes according to the provisions of this article;
(6) To procure insurance or guarantees from the federal government or the state of the payment of debt incurred by the land reuse agency and to pay premiums in connection with the insurance or guarantee;
(7) To enter into contracts and other instruments necessary, incidental or convenient to the performance of its duties and the exercise of its powers. This paragraph includes intergovernmental cooperation agreements for the joint exercise of powers under this article;
(8) To enter into contracts and intergovernmental cooperation agreements with municipalities or counties for the performance of functions by municipalities or counties on behalf of the land reuse agency or by the land reuse agency on behalf of municipalities or counties;
(9) To make and execute contracts and other instruments necessary or convenient to the exercise of the powers of the land reuse agency. Any contract or instrument signed shall be executed by and for the land reuse agency if the contract or instrument is signed, including an authorized facsimile signature, by:
(A) The chair or vice chair of the land reuse agency; and
(B) Either:
(i) The secretary or assistant secretary of the land reuse agency; or
(ii) The treasurer or assistant treasurer of the land reuse agency;
(10) To procure insurance against losses in connection with the real property, assets or activities of the land reuse agency;
(11) To invest money of the land reuse agency at the discretion of the board in instruments, obligations, securities or property determined proper by the board and to name and use depositories for its money;
(12) To enter into contracts for the management of, the collection of rent from or the sale of real property of the land reuse agency;
(13) To design, develop, construct, demolish, reconstruct, deconstruct, rehabilitate, renovate, relocate and otherwise improve real property or rights or interests in real property;
(14) To fix, charge and collect rents, fees and charges for the use of real property of the land reuse agency and for services provided by the land reuse agency;
(15) To grant or acquire licenses, easements, leases or options with respect to real property of the land reuse agency;
(16) To enter into partnerships, joint ventures and other collaborative relationships with municipalities, counties and other public and private entities for the ownership, management, development and disposition of real property;
(17) To organize and reorganize the executive, administrative, clerical and other departments of the land reuse agency and to fix the duties, powers and compensation of employees, agents and consultants of the land reuse agency; and
(18) To do all other things necessary or convenient to achieve the objectives and purposes of the land reuse agency or other law related to the purposes and responsibility of the land reuse agency.
§31-18E-8. Eminent domain.
A land reuse agency does not possess the power of eminent domain. Any property obtained by the power of eminent domain after the effective date of this article may not be acquired by a land reuse agency by any means.
§31-18E-9. Acquisition of property.
(a) Title to be held in its name.— A land reuse agency or municipal land bank shall hold in its own name all real property it acquires.
(b) Tax exemption.— (1) Except as set forth in subdivision (2) of this subsection, the real property of a land reuse agency or municipal land bank and its income and operations are exempt from property tax.
(2) Subdivision (1) of this subsection does not apply to real property of a land reuse agency or municipal land bank after the fifth consecutive year in which the real property is continuously leased to a private third party. However, real property continues to be exempt from property taxes if it is leased to a nonprofit or governmental agency at substantially less than fair market value.
(c) Methods of acquisition. — A land reuse agency or municipal land bank may acquire real property or interests in real property by any means on terms and conditions and in a manner the land reuse agency considers proper: Provided, That a land reuse agency or municipal land bank may not acquire any interest in oil, gas, or minerals which have been severed from the realty.
(d) Acquisitions from municipalities or counties. — (1) A land reuse agency or municipal land bank may acquire real property by purchase contracts, lease purchase agreements, installment sales contracts, and land contracts and may accept transfers from municipalities or counties upon terms and conditions as agreed to by the land reuse agency or municipal land bank and the municipality or county.
(2) A municipality or county may transfer to a land reuse agency or municipal land bank real property and interests in real property of the municipality or county on terms and conditions and according to procedures determined by the municipality or county as long as the real property is located within the jurisdiction of the land reuse agency or municipal land bank.
(3) An urban renewal authority, as defined in §16-18-4 of this code, located within a land reuse jurisdiction established under this article may, with the consent of the local governing body and without a redevelopment contract, convey property to the land reuse agency. A conveyance under this subdivision shall be with fee simple title, free of all liens and encumbrances.
(e) Maintenance. — A land reuse agency or municipal land bank shall maintain all of its real property in accordance with the statutes and ordinances of the jurisdiction in which the real property is located.
(f) Prohibition. — (1) Subject to the provisions of subdivision (2) of this subsection, a land reuse agency or municipal land bank may not own or hold real property located outside the jurisdictional boundaries of the entities which created the land reuse agency under §31-18E-4(c) of this code.
(2) A land reuse agency or municipal land bank may be granted authority pursuant to an intergovernmental cooperation agreement with a municipality or county to manage and maintain real property located within the jurisdiction of the municipality or county.
(g) Acquisition of tax-delinquent properties. — (1) Notwithstanding any other provision of this code to the contrary, if authorized by the land reuse jurisdiction which created a land reuse agency or municipal land bank or otherwise by intergovernmental cooperation agreement, a land reuse agency or municipal land bank may acquire an interest in tax-delinquent property through the provisions of Chapter 11A of this code. If any unredeemed tract or lot or undivided interest in real estate offered for sale at public auction remain unsold following the auction, , the Auditor shall provide a list of all of said real estate within a land reuse or municipal land bank jurisdiction to the land reuse agency or municipal land bank and the land reuse agency or municipal land bank shall be given an opportunity to purchase the tax lien and pay the taxes, interest, and charges due for any unredeemed tract or lot or undivided interest therein as if the land reuse agency or municipal land bank purchased the tax lien at the tax sale.
(2) Notwithstanding any other provision of this code to the contrary, if authorized by the land reuse jurisdiction which created a land reuse agency or municipal land bank or otherwise by intergovernmental cooperation agreement, the land reuse agency or municipal land bank shall have the right of first refusal to purchase any tax-delinquent property which is within municipal limits, and meets one or more of the following criteria: (A) It has an assessed value of $50,000 or less; (B) there are municipal liens on the property that exceed the amount of back taxes owed in the current tax cycle; (C) the property has been on the municipality’s vacant property registry for 24 consecutive months or longer; (D) the property was sold at a tax sale within the previous three years, was not redeemed, and no deed was secured by the previous lien purchaser; or (E) has been condemned: Provided, That the land reuse agency or municipal land bank satisfies the requirements of subdivision (3) of this subsection. A list of properties which meet the criteria of this subdivision shall regularly be compiled by the sheriff of the county, and a land reuse agency or municipal land bank may purchase any qualifying tax-delinquent property for an amount equal to the taxes owed and any related fees before such property is placed for public auction.
(3) When a land reuse agency or municipal land bank exercises a right of first refusal in accordance with subdivision (2) of this section, the land reuse agency or municipal land bank shall, within 15 days of obtaining a tax deed, provide written notice to all owners of real property that is adjacent to the tax-delinquent property. Any such property owner shall have a period of 120 days from the receipt of notice, actual or constructive, to express an interest in purchasing the tax-delinquent property from the land reuse agency or municipal land bank for an amount equal to the amount paid for the property plus expenses incurred by the land reuse agency or municipal land bank: Provided, That the land reuse agency or municipal land bank may refuse to sell the property to the adjacent property owner that expressed interest in the tax-delinquent property if that property owner or an entity owned by the property owner or its directors is delinquent on any state and local taxes or municipal fees on any of their property.
(4) Effective July 1, 2025, the provisions of subdivisions (2) and (3) of this subsection shall sunset and have no further force and effect.
(5) Prior to January 1, 2025, any land reuse agency or municipal land bank which exercises the authority granted by this subsection shall submit to the Joint Committee on Government and Finance a report on the entity’s activities related to the purchase of tax-delinquent properties and any benefits realized from the authority granted by this subsection.
§31-18E-10. Disposition of property.
(a) Public access to inventory. -- A land reuse agency shall maintain and make available for public review and inspection an inventory of real property held by the land reuse agency.
(b) Power. -- A land reuse agency may convey, exchange, sell, transfer, lease, grant or mortgage interests in real property of the land reuse agency in the form and by the method determined to be in the best interests of the land reuse agency.
(c) Consideration. -- (1) A land reuse agency shall determine the amount and form of consideration necessary to convey, exchange, sell, transfer, lease as lessor, grant or mortgage interests in real property.
(2) Consideration may take the form of monetary payments and secured financial obligations, covenants and conditions related to the present and future use of the property, contractual commitments of the transferee and other forms of consideration as determined by the board to be in the best interest of the land reuse agency.
(d) Policies and procedures. -- (1) A board shall determine and state in the land reuse agency policies and procedures the general terms and conditions for consideration to be received by the land reuse agency for the transfer of real property and interests in real property, including but not limited to, a process for distribution of any proceeds to any claimants, taxing entities and the land reuse agency.
(2) Requirements which may be applicable to the disposition of real property and interests in real property by municipalities or counties shall not be applicable to the disposition of real property and interests in real property by a land reuse agency.
(e) Ranking of priorities. -- (1) A land reuse jurisdiction may establish a hierarchical ranking of priorities for the use of real property conveyed by a land reuse agency, including use for:
(A) Purely public spaces and places;
(B) Affordable housing;
(C) Conservation areas; and
(D) Retail, commercial and industrial activities.
(2) The priorities established may be for the entire land reuse jurisdiction or may be set according to the needs of different neighborhoods, municipalities or other locations within the land reuse jurisdiction, or according to the nature of the real property.
(f) Land use plans. -- A land reuse agency shall consider all duly adopted land use plans and make reasonable efforts to coordinate the disposition of land reuse agency real property with the land use plans.
(g) Specific voting and approval requirements. -- (1) A land reuse jurisdiction may, in its ordinance creating a land reuse agency or in the case of multiple land reuse jurisdictions and municipalities or counties creating a single land reuse agency in the applicable intergovernmental cooperation agreement, require that a particular form of disposition of real property or a disposition of real property located within specified jurisdictions be subject to specified voting and approval requirements of the board.
(2) Except as restricted or constrained under paragraph (1) of this subsection, the board may delegate to officers and employees the authority to enter into and execute agreements, instruments of conveyance and other related documents pertaining to the conveyance of real property by the land reuse agency.
§31-18E-11. Financing of land reuse agency operations.
(a) General rule. -- A land reuse agency may receive funding through grants and loans from:
(1) The federal government;
(2) The state;
(3) A municipality or county;
(4) The land reuse jurisdiction which created the land reuse agency; and
(5) Private or other public sources.
(b) Funding. -- A land reuse agency may receive and retain payments for services rendered, for rents and leasehold payments received, for consideration for disposition of real and personal property, for proceeds of insurance coverage for losses incurred, for income from investments and for an asset and activity lawfully permitted to a land reuse agency under this article.
(c) Allocated real property taxes. -- (1) A taxing jurisdiction may authorize the remittance or dedication of a portion of real property taxes collected pursuant to the laws of this state to a land reuse agency on real property conveyed by a land reuse agency.
(2) Allocation of property tax revenues in accordance with this subsection, if authorized by the taxing jurisdiction, begins with the first taxable year following the date of conveyance and continues for a period of up to five years and may not exceed a maximum of fifty percent of the aggregate property tax revenues generated by the property.
(3) Remittance or dedication of real property taxes include the real property taxes of a county board of education only if the county board of education enters into an agreement with the land reuse agency for the remittance or dedication.
§31-18E-12. Borrowing and issuance of bonds.
(a) Authority. -- (1) A land reuse agency may issue a bond for any of its corporate purposes.
(2) The principal and interest of a bond is payable from the land reuse agency's general revenue.
(3) The bond may be secured by any of the following:
(A) A pledge of revenue. This paragraph includes a grant or contribution from: (i) The federal government or a federal agency or instrumentality; or (ii) the state, a state agency or an instrumentality of the state; or
(B) A mortgage of property of the land reuse agency.
(b) Nature. -- The bond is a negotiable instrument under the provisions of article eight, chapter forty-six of this code.
(c) Tax exempt. -- A bond and the income from the bond is exempt from taxation by: (1) The state; and (2) a political subdivision.
(d) Procedure. -- (1) A bond must be authorized by resolution of the board and shall be a limited obligation of the land reuse agency.
(2) The principal and interest, costs of issuance and other costs incidental to the bond are payable solely from the income and revenue derived from the sale, lease or other disposition of the assets of the land reuse agency. The land reuse agency may secure the bond by a mortgage or other security device covering all or part of the project from which the pledged revenues may be derived.
(3) A refunding bond issued under this section:
(A) Is payable from: (i) A source described in this article; or (ii) the investment of the proceeds of the refunding bonds; and
(B) Is not an indebtedness or pledge of the general credit of a political subdivision within the meaning of a constitutional or statutory limitation of indebtedness and shall contain a recital to that effect.
(4) A bond must comply with the authorizing resolution as to:
(A) Form;
(B) Denomination;
(C) Interest rate;
(D) Maturity; and
(E) Execution.
(5) A bond may be subject to redemption at the option of and in the manner determined by the board in the authorizing resolution.
(e) Powers of municipalities or counties. -- A municipality or county may elect to guarantee, insure or otherwise become primarily or secondarily obligated on the indebtedness of a land reuse agency, subject, however, to all other provisions of law of this state applicable to municipal or county indebtedness.
(f) Sale. -- (1) A bond shall be issued, sold and delivered in accordance with the terms and provisions of the authorizing resolution. The board, to effectuate its best interest, may determine the manner of sale, public or private, and the price of the bond.
(2) The resolution issuing a bond must be published in a newspaper of general circulation within the jurisdiction in which the land reuse agency is located.
(g) Liability. -- (1) Neither the members of a land reuse agency nor a person executing the bond shall be liable personally on the bonds by reason of the issuance of the bond.
(2) The bond or other obligation of a land reuse agency related to a bond shall not be a debt of a municipality, county or of the state. A statement to this effect shall appear on the face of the bond or obligation.
(3) On the bond or other obligation of a land reuse agency related to a bond, all of the following apply:
(A) The state has no liability. This paragraph applies to the revenue and property of the state; and
(B) A municipality or county has no liability. This paragraph applies to the revenue and property of a municipality or county.
§31-18E-13. Public records and public access.
(a) Public records. -- A board shall keep minutes and a record of its proceedings.
(b) Public access. -- A land reuse agency is subject to article nine-a, chapter six of this code, relating to open meetings, and chapter twenty-nine-b of this code, relating to public records.
§31-18E-14. Dissolution of land reuse agency.
(a) General rule. -- A land reuse agency may be dissolved as a public body corporate and politic upon compliance with all of the following:
(1) Sixty calendar days advance written notice of consideration of a resolution to request dissolution must be:
(A) Given to the land reuse jurisdiction which created the land reuse agency;
(B) Published in a local newspaper of general circulation; and
(C) Sent by certified mail to the trustees of outstanding bonds of the land reuse agency;
(2) Satisfaction of all outstanding liabilities; and
(3) Approval of a resolution requesting dissolution, pursuant to subdivision (3), subsection (h), section five of this article.
(b) Authority. -- Upon receipt of a proper resolution described in subsection (a) of this section, the land reuse jurisdiction which created the land reuse agency may dissolve the land reuse agency by adoption of an ordinance or order. If approved, the governing body of the land reuse jurisdiction which created the land reuse agency shall file a certified copy of the ordinance or order with the Secretary of State and notify the West Virginia Housing Development Fund of the dissolution of the land reuse agency. The Secretary of State shall cause the termination of the existence of the land reuse agency to be noted on the record of incorporation. Upon the filing, the land reuse agency shall cease to function.
(c) Transfer of assets. -- Upon dissolution of the land reuse agency, real property, personal property and other assets of the land reuse agency become the assets of the municipality in which the property is located or the county in which the property is located, if it is not within a municipality. The following apply:
(1) Personal property, including financial assets, of the land reuse agency shall be divided among participating land reuse jurisdictions in proportion to the population of each jurisdiction.
(2) The municipality in which real property is located or the county in which the property is located, if it is not within a municipality, shall approve the transfer of title to the municipality or county.
(d) Multiple jurisdictions. -- If multiple land reuse jurisdictions create a land reuse agency under section four of this article, the withdrawal of one or more land reuse jurisdictions does not require dissolution of the land reuse agency unless:
(1) The intergovernmental cooperation agreement provides for dissolution in this event; and
(2) There is no land reuse jurisdiction which desires to continue the existence of the land reuse agency.
§31-18E-15. Conflicts of interest.
(a) Ethics Act. -- The acts and decisions of members of a board and of employees of a land reuse agency are subject to chapter six-b of this code.
(b) Supplemental rules and guidelines. -- The board may adopt:
(1) Supplemental rules addressing potential conflicts of interest; and
(2) Ethical guidelines for members of the board and land reuse agency employees.
§31-18E-16. Expedited quiet title proceedings.
(a) Authorization. -- (1) A land reuse agency may file an action in circuit court to quiet title to real property in which the land reuse agency has an interest.
(2) A land reuse agency may join in a single complaint to quiet title to one or more parcels of real property.
(3) For purposes of an action under this section, the land reuse agency shall be deemed to be the holder of sufficient legal and equitable interests and possessory rights so as to qualify the land reuse agency as an adequate complainant in the action.
(b) Procedural requirements. -- (1) Prior to the filing of an action to quiet title, the land reuse agency must conduct an examination of title to determine the identity of any person possessing a claim or interest in or to the real property.
(2) Service of the complaint to quiet title shall be provided in accordance with the requirements to serve a civil complaint generally, including that service to interested parties be made as follows:
(A) By first class mail to the identity and address reasonably ascertainable by an inspection of public records;
(B) In the case of occupied real property, by first class mail, addressed to "occupant";
(C) By posting a copy of the notice on the real property.
(D) By publication; and
(E) As ordered by the court.
(3) As part of the complaint to quiet title, the land reuse agency must file an affidavit identifying:
(A) Persons discovered under subdivision (1) of this subsection; and
(B) The form of service under subdivision (2) of this subsection.
(c) Hearing. -- (1) The court shall schedule a hearing on the complaint within ninety days following filing of the complaint and as to all matters upon which an answer was not filed by an interested party.
(2) The court shall issue its final judgment within one hundred twenty days of the filing of the complaint.
§31-18E-17. Construction, intent and scope.
This article shall be construed liberally to effectuate the legislative intent and the purposes as complete and independent authorization for the implementation of this article, and all powers granted shall be broadly interpreted to effectuate the intent and purposes and not as a limitation of powers.
§31-18E-18. Annual audit and report.
(a) The land reuse agency shall annually, within one hundred twenty days after the end of the fiscal year, submit an audit of income and expenditures, together with a report of its activities for the preceding year, to the West Virginia Housing Development Fund.
(b) A duplicate of the audit and the report shall be filed with the governing body of:
(1) The land reuse jurisdiction which created the land reuse agency; and
(2) Each political subdivision which opted to participate in the land reuse agency pursuant to an intergovernmental agreement.
§31-19-1. Short title.
This article shall be known as the "West Virginia Community Infrastructure Authority Act."
§31-19-2. Legislative findings and purposes.
(a) The Legislature hereby finds and declares that increasing requirements for essential public improvements and escalating costs of providing such improvements have created inordinate demands upon the financial resources of counties and municipalities necessitating legislation to enable counties and municipalities to attain a more competitive position in capital markets.
(b) The Legislature hereby finds and declares further that it is in the public interest and is the responsibility of the State of West Virginia to foster and promote by all lawful means the provision of adequate capital markets and facilities for borrowing money by counties and municipalities for the financing of public improvements and the fulfillment of public purposes, and to make it possible for counties and municipalities to obtain new or additional sources of capital funds at acceptable interest costs, including activities to encourage investor interest in the purchase of bonds or notes of counties or municipalities as sound and preferred securities for investments.
(c) The Legislature hereby finds and declares further that it is in the public interest and is the responsibility of the State of West Virginia to encourage counties and municipalities to continue their independent undertakings of public improvements and fulfillment of public purposes and the financing thereof and to improve or enhance the possibilities of counties and municipalities obtaining funds, to the extent possible, at reduced interest costs, for orderly financing of public improvements and fulfillment of public purposes, particularly those counties or municipalities not otherwise able to borrow for such purposes during periods of need.
(d) The Legislature hereby finds and declares further that it is in the public interest, in order to implement and aid in the discharge of the responsibilities of the aforesaid, that a state instrumentality be created as a public body corporate with full powers to borrow money and issue its bonds and notes to the end that funds obtained thereby may be used for the purchase by such state instrumentality of the bonds or notes of counties and municipalities or for the purposes of making loans to the counties or municipalities for community infrastructure projects, and that such state instrumentality be granted all powers necessary or appropriate to accomplish and to carry out the aforesaid public purposes and responsibilities of the State of West Virginia in a manner to make it possible for counties or municipalities to sell their bonds and borrow funds at as low an interest rate as said instrumentality finds and determines to be feasible.
(e) The Legislature further finds and declares that in accomplishing these purposes, the West Virginia community infrastructure authority, created and established by this article, will be acting in all respects for the benefit of the people of the State of West Virginia to serve the public purposes of improving and otherwise promoting their health, education, welfare, safety and prosperity, and that the West Virginia community infrastructure authority, so created and established, is hereby empowered to act on behalf of the State of West Virginia and its people in serving the aforesaid public purposes for the benefit of the general public of said state.
§31-19-3. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) "Authority" means the West Virginia community infrastructure authority created in section four of this article, the duties, powers, responsibilities and functions of which are specified in this article.
(2) "Board" means the West Virginia community infrastructure authority board created in section four of this article, which shall manage and control the West Virginia community infrastructure authority.
(3) "Bond" or "community infrastructure revenue bond" means a revenue bond or note issued by the West Virginia community infrastructure authority to effect the intents and purposes of this article.
(4) "Community infrastructure project" or "project" means any project of a public nature which is considered a part of the infrastructure of a county or municipality, including, but not limited to, roads and other appurtenances to community or economic development, which are specifically declared to be for a public purpose.
(5) "Cost" means, as applied to community infrastructure projects, the cost of acquisition, repair, renovation and construction thereof; the cost of acquisition of all land, rights-of-way, property rights, easements, franchise rights, and interests required by the county or municipality for such acquisition, renovation, repair or construction; 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 diverting highways, interchange of highways, access roads to private property, including the cost of land or easement therefor; the cost of all machinery, furnishing, and equipment; all finance charges, and interest prior to and during the construction and for no more than eighteen months after completion of construction; the cost of all legal services and expenses; the cost of all plans, specifications, surveys and estimates of cost; all working capital and other expenses necessary or incident to determining the feasibility or practicability of acquiring, renovating, repairing or constructing any such project; the financing of such acquisition, renovation, or repair or construction, including the amount authorized in the resolution of the authority providing for the issuance of community infrastructure revenue bonds to be paid into any special funds from the proceeds of such bonds; and the financing of the placing of any such project in operation, if necessary. Any obligations or expenses incurred after the effective date of this article by any county or municipality, with the approval of the authority, for surveys, borings, preparation of plans and specifications and other engineering services in connection with the acquisition, renovation, repair or construction of a project shall be regarded as a part of the cost of such project and shall be reimbursed out of the proceeds of grants, loans or community infrastructure revenue bonds as authorized by the provisions of this article.
(6) "Department" means the Governor's office of community and industrial development.
(7) "Revenue" means any money or thing of value collected by, or paid to, the West Virginia community infrastructure authority in connection with any community infrastructure project or as principal of or interest, charges or other fees on loans, or any other collections on loans made by the West Virginia community infrastructure authority to counties or municipalities to finance in whole or in part the acquisition, renovation, repair or construction of any community infrastructure project or projects, or other money or property which is received and may be expended for or pledged as revenues pursuant to this article.
§31-19-4. West Virginia Community Infrastructure Authority created; West Virginia Community Infrastructure Board created; organization of Authority and Board; appointment of board members; their term of office, compensation and expenses; duties and responsibilities of director and staff of authority.
(a) There is hereby created the West Virginia Community Infrastructure Authority. The authority is a governmental instrumentality of the state and a body corporate. The exercise by the authority of the powers conferred by this article and the carrying out of its purposes and duties are essential governmental functions and for a public purpose.
The authority shall be controlled, managed and operated by the five-member board known as the West Virginia Community Infrastructure Board, which is hereby created. The Director of the West Virginia Development Office, or her or his designee, the Director of the Division of Environmental Protection, or her or his designee, and the Commissioner of the Division of Highways, or her or his designee, are members ex officio of the board. The Executive Director of the West Virginia Development Office, or her or his designee, is the ex officio chair. Two members of the board shall be representative of the general public, one of which shall have had experience or a demonstrated interest in local government. The two members who are not ex officio members of the board shall be appointed by the Governor, by and with the advice and consent of the Senate, for initial terms of three and six years, respectively. The successor of each such appointed member shall be appointed for a term of six years in the same manner as the original appointments were made, except that any person appointed to fill a vacancy occurring prior to the expiration of the term for which her or his predecessor was appointed shall be appointed only for the remainder of such term. Each board member shall serve until the appointment and qualification of her or his successor. The two appointed board members shall not at any one time belong to the same political party. Appointed board members may be reappointed to serve additional terms, not to exceed two consecutive full terms. All members of the board shall be citizens of the state. Each appointed member of the board, before entering upon her or his duties, shall comply with the requirements of article one, chapter six of this code and give bond in the sum of $20,000 in the manner provided in article two, chapter six of this code. The Governor may remove any board member for cause as provided in article six, chapter six of this code.
Annually the board shall elect one of its appointed members as chair, and shall appoint a secretary-treasurer, who need not be a member of the board. Three members of the board is a quorum and the affirmative vote of three members is necessary for any action taken by vote of the board. No vacancy in the membership of the board impairs the rights of a quorum by such vote to exercise all the rights and perform all the duties of the board and the authority. The person appointed as secretary-treasurer, including a board member if she or he is so appointed, shall give bond in the sum of $50,000 in the manner provided in article two, chapter six of this code.
The Executive Director of the West Virginia Development Office or her or his designee, the Director of the Division of Environmental Protection or her or his designee, and the Commissioner of the Division of Highways or her or his designee, shall not receive any compensation for serving as board members. Each of the two appointed board members of the board shall receive an annual salary of $5,000, payable at least twice per month. Each of the five board members shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of her or his duties as a member of such board. All such expenses incurred by the board are payable solely from funds of the authority or from funds appropriated for such purpose by the Legislature and no liability or obligation shall be incurred by the authority beyond the extent for which moneys are available from funds of the authority or from such appropriations.
(b) There shall be a director of the authority appointed by the board who shall supervise and manage the Community Infrastructure Authority, and the West Virginia Development Office shall serve as the staff for the authority. Except as otherwise provided in this section, the duties and responsibilities of the director and of the staff shall be established by the authority. At the board’s discretion, it may provide for the position of general counsel, who shall be an employee of the authority, or for the appointment of special counsel. As the board deems necessary and desirable, it may at any time elect to change its decision on the employment or appointment of a counsel.
(c) The director, or her or his designee, may employ or appoint any staff members in addition to those provided by the West Virginia Development Office, including general or special counsel if the position is established by the board. The number of employees needed, the positions to be filled and their salaries or wages shall be determined by the director with the approval of the board, unless the board elects to not require its approval. At any time the board may elect to change its decision concerning approval of additional staff hiring and salaries.
(d) The board shall meet at least quarterly, and more often as it deems necessary. The director and any other staff member or members as the director deems expedient shall attend board meetings.
§31-19-5. Authority may finance community infrastructure projects; loans to or bond purchases from counties and municipalities shall be subject to terms of loan or bond purchase agreements.
To accomplish the public policies and purposes and to meet the responsibility of the state as set forth in this article, the West Virginia community infrastructure authority may make loans to counties and municipalities for the acquisition, renovation, repair or construction of community infrastructure projects by such counties and municipalities, and may issue community infrastructure revenue bonds of this state, payable solely from revenues, to pay the cost of, or finance, in whole or in part, by loans to counties and municipalities, such projects. A community infrastructure project shall not be undertaken unless it has been determined by the authority based upon information provided to it by the county or municipality or other agency charged by law with the responsibility of reporting to be consistent with any applicable requirements of law. Any resolution of the authority providing for making a loan or bond purchase pursuant to this article shall include a finding by the authority that such determinations have been made. A loan or bond purchase agreement shall be entered into between the authority and each county or municipality to which a loan is made or from which bonds are purchased for the acquisition, renovation, repair or construction of a community infrastructure project, which loan or bond purchase agreement shall include without limitation the following provisions:
(1) The cost of such project, the amount of the loan or bond purchase, the terms of repayment of such loan or bond purchase and the security therefor;
(2) The specific purposes for which the proceeds of the loan or bond purchase shall be expended, the procedures as to the disbursements of loan or bond purchase proceeds and the duties and obligations imposed upon the county or municipality in regard to the construction, renovation, repair or acquisition of the project;
(3) The agreement of the county or municipality to raise the funds for repayment, through levy, pursuant to an election pursuant to article one, chapter thirteen of this code; and
(4) The agreement of the county or the municipality to comply with all applicable laws, rules and regulations issued by the authority or other state, federal or local bodies in regard to the construction, repair, renovation or acquisition of the project.
§31-19-6. Powers, duties and responsibilities of the authority generally.
The West Virginia community infrastructure authority is hereby granted, has and may exercise all powers necessary or appropriate to carry out and effectuate its corporate purpose. The authority shall have the power and capacity to:
(1) Adopt, and from time to time, amend and repeal bylaws necessary and proper for the regulation of its affairs and the conduct of its business and rules and regulations to implement and make effective its powers and duties, such rules and regulations to be promulgated in accordance with the provisions of chapter twenty-nine-a of this code.
(2) Adopt an official seal.
(3) Maintain a principal office and, if necessary, regional suboffices at locations properly designated or provided.
(4) Sue and be sued in its own name and plead and be impleaded in its own name, particularly to enforce the obligations and covenants made under sections seven and eight of this article. Any actions against the authority shall be brought in the circuit court of Kanawha County, in which the principal office of the authority shall be located.
(5) Establish and operate a revolving loan fund for the purpose of making loans to counties and municipalities for the acquisition, renovation, repair or construction of community infrastructure projects by such counties or municipalities; purchase the bonds of counties and municipalities issued for the acquisition, renovation, repair or construction of community infrastructure projects by such county or municipality; and, in accordance with the provisions of chapter twenty-nine-a of this code, adopt rules and procedures for making such loans or purchasing such bonds.
(6) Issue community infrastructure revenue bonds and notes and community infrastructure revenue refunding bonds of the state, payable as provided in section seven of this article unless the bonds are refunded by refunding bonds, for the purpose of making loans to or bond purchases from counties or municipalities for one or more community infrastructure projects or parts thereof.
(7) Acquire by gift or purchase, hold or dispose of real and personal property in the exercise of its powers and performance of its duties as set forth in this article.
(8) Make and enter into all contracts and agreements and execute all instruments necessary or incidental to the performance of its duties and the execution of its powers.
(9) Receive and accept from any federal agency, subject to the approval of the Governor, grants for or in aid of the construction, repair, renovation or acquisition of community infrastructure projects, and receive and accept aid or contributions from any source of money, property, labor or other things of value, to be held, used and applied only for the purposes for which such grants and contributions are made.
(10) Purchase property coverage and liability insurance for any community infrastructure project and for any offices of the authority, insurance protecting the authority and its officers and employees against liability, if any, or damage to property or injury to or death of persons arising from its operations and any other insurance the authority may agree to provide under any resolution authorizing the issuance of community infrastructure revenue bonds or in any trust agreement securing the same.
(11) Establish or increase reserves from moneys received or to be received by the authority to secure or pay the principal of and interest on bonds and notes issued by the authority pursuant to this article or other law.
(12) Receive and disburse the proceeds of such general obligation bonds of the state as may be allowed by law pursuant to any resolution or act of the Legislature.
(13) To the extent permitted under its contracts with the holders of bonds or notes of the authority, consent to modification of the rate of interest, time and payment of installment of principal or interest, security, or any other term of a bond or note, contract or agreement of any kind to which the authority is a party.
(14) Make grants to counties or municipalities for one or more community infrastructure projects or parts thereof.
(15) Provide consultation services to municipalities or counties in connection with the acquisition, renovation, repair or construction of any community infrastructure project.
(16) Establish and amend the criteria and qualifications for the making of any loan to or the purchasing of any bond from a county or municipality and the terms not inconsistent with this article of any loan or bond purchase agreement with any county or municipality.
(17) Do all acts necessary and proper to carry out the powers expressly granted to the authority in this article.
§31-19-7. Authority empowered to issue community infrastructure revenue bonds, renewal notes and refunding bonds; requirements and manner of such issuance.
The authority is hereby empowered to issue from time to time community infrastructure revenue bonds and notes of the state in such principal amounts as the authority deems necessary to make loans to or bond purchases from counties and municipalities for one or more community infrastructure projects.
The authority may, from time to time, issue renewal notes, issue bonds to pay such notes and whenever it deems refunding expedient, refund any bonds by the issuance of community infrastructure revenue refunding bonds by the state pursuant to the provisions of section sixteen of this article. Except as may otherwise be expressly provided in this article or by the authority, every issue of its bond or notes shall be obligations of the authority payable out of the revenues and reserves created for such purposes by the authority which are expressly pledged for such payment, without preference or priority of the first bonds issued, subject only to any agreements with the holders of particular bonds or notes pledging any particular revenues. Such pledge shall be valid and binding from the time the pledge is made and the revenues so pledged and thereafter received by the authority shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act and the lien of any such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the authority irrespective of whether such parties have notice thereof.
All such bonds and notes shall have and are hereby declared to have all the qualities of negotiable instruments.
The bonds and notes shall be authorized by resolution of the authority, shall bear such date and shall mature at such time, in case of any such note or any renewal thereof not exceeding five years from the date of issue of such original note, and in the case of any such bond not exceeding fifty years from the date of issue, as such resolution may provide. The bonds and notes shall bear interest at such rate or rates, including variable rates, be in such denominations, be in such form, either coupon or registered, carry such registration privileges, be payable in such medium of payment, in such place and be subject to such terms of redemption as the authority may authorize. The bonds and notes of the authority may be sold by the authority at public or private sale, at or not less than the price the authority determines. The bonds and notes shall be executed by the chairman of the authority who may use a facsimile signature. The official seal of the authority or a facsimile shall be affixed thereto or printed thereon and attested, manually or by facsimile signature by the secretary-treasurer of the authority, and any coupons attached thereto shall bear the signature or facsimile signature of the chairman of the authority. In case any officer whose signature, or a facsimile of whose signature appears on any bonds, notes or coupons ceases to be such officer before delivery of such bonds or notes, such signature or facsimile is nevertheless sufficient for all purposes the same as if he had remained in office until such delivery and in case the seal of the authority have been changed after a facsimile has been imprinted on such bonds or notes, such facsimile will continue to be sufficient for all purposes.
Any resolution authorizing any bonds or notes or any issue thereof may contain provisions (subject to such agreements with bondholders or noteholders as may then exist, which provisions shall be a part of the contract with the holders thereof) as to pledging all or any part of the revenues of the authority to secure the payment of the bonds or notes or of any issue thereof; the use and disposition of revenues of the authority; the setting aside of reserve funds, sinking funds or replacement and improvement funds and the regulation and disposition thereof; the crediting of the proceeds of the sale of bonds or notes to and among the funds referred to and provided for in the resolution authorizing the issuance of the bonds or notes; the use, lease, sale or other disposition of any assets of the authority; limitations on the purpose to which the proceeds of sale of bonds or notes may be applied; notes issued in anticipation of the issuance of bonds; the agreement of authority to do all things necessary for the authorization, issuance and sale of such bonds in such amounts as may be necessary for the timely retirement of such notes; limitation on the issuance of additional bonds or notes; the terms upon which additional bonds or notes may be issued and secured; the refunding of outstanding bonds or notes; the procedure, if any, by which the terms of any contract with bondholders or noteholders may be amended or abrogated; the amount of bonds or notes the holders of which must consent thereof and the manner in which such consent may be given; limitations on the amount of moneys to be expended by the authority for operating, administrative or other expenses of the authority securing any bonds or notes by a trust agreement; and any other matter, of like or different character, which in any way affect the security or protection of the bonds or notes.
In the event that the sum of all reserves pledged to the payment of such bonds or notes shall be less than the minimum reserve requirements established in any resolution or resolutions authorizing the issuance of such bonds or notes, the chairman of the authority shall certify, on or before December 1, of each year, the amount of such deficiency to the Governor of the state for inclusion, if the Governor shall so elect, of the amount of such deficiency in the budget to be submitted to the next session of the Legislature for appropriation to the authority to be pledged for payment of such bonds or notes: Provided, That the Legislature shall not be required to make any appropriations so requested, and the amount of such deficiencies shall not constitute a debt or liability of the state.
Neither the members of the authority nor any person executing the bonds or notes shall be liable personally on the bonds or notes or be subject to any personal liability or accountability by reason of the issuance thereof.
§31-19-8. Trustee for bondholders; contents of trust agreement.
Any community infrastructure revenue bonds or notes or community infrastructure revenue refunding bonds issued by the authority under this article may be secured by a trust agreement between the authority and a corporate trustee, which trustee may be any trust company or banking institution having the powers of a trust company within or without this state. The authority shall promulgate rules and regulations pursuant to article three, chapter twenty-nine-a of this code establishing the method of choosing any such trustee which shall be done by a public competitive bidding procedure.
The authority shall, in all instances, seek to achieve the highest possible rating for any community infrastructure revenue bonds or notes or community infrastructure revenue refunding bonds or notes.
Any such trust agreement may pledge or assign revenues of the authority to be received. Any such trust agreement or any resolution providing for the issuance of such bonds or notes may contain such provisions for protecting and enforcing the rights and remedies of the bondholders or noteholders as are reasonable and proper and not in violation of law, including the provisions contained in section seven of this article and covenants setting forth the duties of the authority in relation to provisions regarding the payment of the principal of and interest, charges and fees on loans made to, or bond purchases from, counties and municipalities from the proceeds of such bonds or notes, the custody, safeguarding and application of all moneys. Any banking institution or trust company incorporated under the laws of this state which may act as depository of the proceeds of bonds or notes or of revenues shall furnish such indemnifying bonds or pledge such securities as are required by the authority. Any such trust agreement may set forth the rights and remedies of the bondholders and noteholders and of the trustee and may restrict individual rights of action by bondholders and noteholders as customarily provided in trust agreement or trust indentures securing similar bonds. Such trust agreement may contain such other provisions as the authority deems reasonable and proper for the security of the bondholders or noteholders. All expenses incurred in carrying out the provisions of any such trust agreement may be treated as part of the cost of the construction, renovation, repair or acquisition of a community infrastructure project.
§31-19-9. Legal remedies of bondholders and trustees.
Any holder of community infrastructure revenue bonds issued pursuant to this article or any of the coupons appertaining thereto and the trustee under any trust agreement, except the extent the rights given by this article may be restricted by the applicable resolution or such trust agreement, may by civil action, mandamus or other proceedings protect and enforce any rights granted under the laws of the state or granted under this article by the trust agreement or by the resolution in the issuance of such bonds, and may enforce and compel the performance or all duties required by this article, pursuant to the trust agreement or resolution, to be performed by the authority or any officer thereof.
§31-19-10. Bonds and notes not debt of state, county, or municipality; expenses incurred pursuant to article.
Community infrastructure revenue bonds and notes and community infrastructure revenue refunding bonds issued pursuant to this article and any coupons in connection therewith shall not constitute a debt or a pledge of the faith and credit or taxing power of this state or of any county or municipality of the state and the holders or owners thereof shall have no right to have taxes levied by the Legislature or taxing authority of any county or municipality for the payment of the principal thereof or interest thereon, but such bonds and notes shall be payable solely from the revenues and funds pledged for their payment as authorized by this article unless the notes are issued in anticipation of the issuance of bonds or the bonds are refunded by refunding bonds issued pursuant to this article which bonds or refunding bonds shall be payable solely from revenues and funds pledged for their payment as authorized by this article. All such bonds and notes shall contain on the face thereof a statement to the effect that the bonds or notes, as to both principal and interest, are not debts of the state or any county or municipality thereof, but are payable solely from revenues and funds pledged for their payment.
All expenses incurred in the carrying out of the provisions of this article shall be payable solely from funds provided under the authority of this article. Such article does not authorize the authority to incur indebtedness or liability on behalf of or payable by the state or any county or municipality thereof.
§31-19-11. Use of funds by authority; restrictions thereon.
All moneys, properties and assets acquired by the authority whether as proceeds from the sale of community infrastructure revenue bonds or as revenues or otherwise, shall be held by it in trust for the purposes of carrying out its powers and duties, and shall be used and reused in accordance with the purposes and provisions of this article. Such moneys shall at no time be commingled with other public funds. Such moneys, except as otherwise provided in any resolution authorizing the issuance of community infrastructure revenue bonds or in any trust agreement securing the same, or except when invested pursuant to section twelve of this article, shall be kept in appropriate depositories and secured as provided and required by law. The resolution authorizing the issuance of such bonds of any issue or of the trust agreement securing such bonds shall provide that any officer to whom, or any banking institution or trust company to which, such moneys are paid shall act as trustee of such moneys and hold and apply them for the purposes hereof, subject to the conditions this article and such resolution or trust agreement provide.
§31-19-12. Investment of funds by authority.
Except as otherwise provided in any resolution authorizing the issuance of community infrastructure revenue bonds or in any trust agreement securing the same, the authority is hereby authorized and empowered to invest any funds not needed for immediate disbursement in any of the following securities:
(1) Direct obligations of or obligations guaranteed by the United States of America;
(2) Bonds, debentures, notes or other evidences of indebtedness issued by any of the following agencies: Banks for cooperatives; federal intermediate credit banks; federal home loan bank system; Export-Import Bank of the United States; federal land banks; The Federal National Mortgage Association or the Government National Mortgage Association;
(3) Public housing bonds issued by the public agencies or municipalities and fully secured as to the payment of both principal and interest by a pledge of annual contributions under an annual contributions contract or contracts with United States of America; or temporary notes issued by public agencies or municipalities or preliminary loan notes issued by public agencies or municipalities, in each case, fully secured as to the payment of both principal and interest by a requisition or payment agreement with United States of America;
(4) Certificates of deposit secured by obligations of the United States of America;
(5) Direct obligations of or obligations guaranteed by the State of West Virginia;
(6) Direct and general obligations of any other state within the territorial United States, to the payment of the principal of and interest of which the full faith and credit of such state is pledged: Provided, That at the time of their purchase, such obligations are rated in either of the two highest rating categories by nationally recognized bond-rating agencies; and
(7) Any fixed interest bond, note or debenture of any corporation organized and operating with the United States: Provided, That such corporation shall have a minimum net worth of $15 million and its securities or its parent corporation's securities are listed on one or more of the national stock exchanges: Provided, however, That (i) such corporation has earned a profit in eight of the preceding ten fiscal years as reflected in its statements, (ii) such corporation has not defaulted in the payment of principal or interest on any of its outstanding funded indebtedness during its preceding ten fiscal years, and (iii) the bonds, notes or debentures of such corporation to be purchased are rated "AA" or the equivalent thereof or better than "AA" or the equivalent thereof by at least two or more nationally recognized rating services such as Standard and Poor's, Dun & Bradstreet or Moody's.
§31-19-13. Reports by authority to Governor and Legislature.
As soon as possible after the close of each fiscal year, the authority shall make an annual report of its activities for the preceding fiscal year to the Governor and the Legislature. Each such report shall set forth a complete operating and financial statement covering the authority's operations during the preceding fiscal year. The authority shall cause an audit of its books and accounts to be made at least once each fiscal year by certified public accountants.
The cost of such audit shall be treated as a part of the cost of operation of the authority.
§31-19-14. Community infrastructure bonds lawful investments.
The provisions of sections nine and ten, article six, chapter twelve of this code to the contrary notwithstanding all community infrastructure revenue bonds issued pursuant to this article shall be lawful investments for the West Virginia state Board of Investments and shall also be lawful investments for banking institutions, societies for savings, building and loan associations, savings and loan associations, deposit guarantee associations, trust companies, insurance companies, including domestic for life and domestic not for life insurance companies.
§31-19-15. Purchase and cancellation of notes or bonds.
The authority, subject to such agreements with noteholders or bondholders as may then exist, shall have power, out of any funds available therefor, to purchase notes or bonds of the authority.
If the notes or bonds are then redeemable, the price of such purchase shall not exceed the redemption price then applicable plus accrued interest to the next interest payment date thereon. If the notes or bonds are not then redeemable, the price of such purchase shall not exceed the redemption price applicable on the first day after such purchase upon which the notes or bonds become subject to redemption plus accrued interest to such date. Upon such purchase such notes or bonds shall be cancelled.
§31-19-16. Refunding bonds.
Any bonds issued hereunder and at any time outstanding may at any time and from time to time be refunded by the authority by the issuance of its refunding bonds in such amount as it may deem necessary to refund the principal of the bonds so to be refunded, together with any unpaid interest thereon; to provide additional funds for the purpose of the authority; and any premiums and commissions necessary to be paid in connection therewith. Any such refunding may be effected whether the bonds to be refunded shall have then matured or shall thereafter mature, either by sale of the refunding bonds and the application of the proceeds thereof for the redemption of the bonds for the bonds to be refunded thereby: Provided, That the holders of any bonds so to be refunded shall not be compelled without their consent to surrender their bonds for payment or exchange prior to the date on which they are payable or, if they are called for redemption, prior to the date on which they are by their terms subject to redemption. Any refunding bonds issued pursuant to this article shall be payable from the revenues out of which the bonds to be refunded thereby were payable, or from other moneys or the principal of and interest on or other investment yield from, investments or proceeds of bonds or other applicable funds or moneys, including investments of proceeds of any refunding bonds, and shall be subject to the provisions contained in section seven of this article and shall be secured in accordance with the provisions of sections seven and eight of this article.
§31-19-17. Exemption from taxation.
The exercise of the powers granted to the authority by this article will be in all respects for the benefit of the people of the state, for the improvement of their health, safety, convenience and welfare and for the enhancement of their residential, agricultural, recreational, economic, commercial and industrial opportunities and is a public purpose. As the construction, acquisition, repair or renovation of community infrastructure projects will constitute the performance of essential governmental functions, the authority shall not be required to pay any taxes or assessments upon any community infrastructure project or upon any property acquired or used by the authority or upon the income therefrom. Such bonds and notes and all interests and income thereon shall be exempt from all taxation by this state, or any county, municipality, political subdivision or agency thereof, except inheritance taxes.
§31-19-18. Financial interests in contracts prohibited; penalty.
No officer, member or employee of the authority shall be financially interested, directly or indirectly, in any contract of any person with the authority, or in the sale of any property, real or personal, to or from the authority. This section does not apply to contracts or purchases of property, real or personal, between the authority and any governmental agency. If any officer, member or employee of the authority has such financial interests in the contract or sale of property prohibited hereby, he shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned in the county jail not more than one year, or both fined and imprisoned.
§31-19-19. Meetings and records of authority to be kept public.
All meetings of the authority shall be open to the public and the records of the authority shall be open to public inspection at all reasonable times, except as otherwise provided in this section. All final actions of the authority shall be journalized and such journals shall also be open to the inspection of the public at all reasonable times. Any records or information relating to secret processes or secret methods of manufacture or production which may be obtained by the authority or other persons acting under authority of this article are confidential and shall not be disclosed.
§31-19-20. Liberal construction of article.
The provisions of this article are hereby declared to be remedial and shall be liberally construed to effectuate its purposes and intents.
§31-19-21. Severability.
If any section, part or provision of this article or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect any other section, part or provision of this article or its application and to this end the provisions of this article are declared to be severable.
§31-20-1
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-1a
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-2
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-3
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-4
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-5
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-5a
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-5b
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-5c
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-5d
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-5e
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-5f
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-5g
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-5h
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-6.
Repealed.
Acts, 2001 Reg. Sess., Ch. 67.
§31-20-7.
Repealed.
Acts, 2001 Reg. Sess., Ch. 67.
§31-20-8
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-8a
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-9
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-9a
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-10
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-10a
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-10b
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-11
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-12
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-13
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-14
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-15
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-16. Disclaimer of any liability of state of West Virginia.
The state of West Virginia shall not be liable on notes, security interests or bonds or other evidences of indebtedness of the authority and such notes, security interests or bonds or other evidences of indebtedness shall not be a debt of the State of West Virginia, and such notes, security interests or bonds or other evidences of indebtedness shall contain on the face thereof a statement to such effect.
§31-20-17. Default in payment of principal or interest.
In the event the authority shall default in the payment of principal of or interest on any issue of its notes, security interests or bonds after they become due, whether at maturity or upon call for redemption, and such default continues for a period of thirty days, or in the event the authority fails or refuses to comply with the provisions of this article or defaults in any agreement made with the holders of any issue of notes, security interests or bonds, the holders of twenty-five percent in aggregate principal amount of the notes, security interests or bonds of such issue then outstanding, by instrument or instruments filed in the office of the clerk of the county commission of any county in which the authority operates and has an office and acknowledged in the same manner as a deed to be recorded, may appoint a trustee to represent the holders of such notes, security interests or bonds for the purposes herein provided:
(a) Any such trustee, upon the written request of the holders of twenty-five percent in the principal amount of such notes, security interests or bonds of the authority then outstanding, shall, in his or its own name, do any one or more of the following:
(1) By civil action or other proceeding, enforce all rights of the noteholders, holders of security interests or bondholders, including the right to require the authority to perform its duties under this article;
(2) Bring a civil action upon such notes, security interests or bonds;
(3) By civil action or other proceeding, require the authority to account as if it were the trustee of an express trust for the holders of such notes, security interests or bonds;
(4) By civil action or other proceeding, enjoin any acts or things which may be unlawful or in violation of the rights of the holders of such notes, security interests or bonds; or
(5) Declare all such notes, security interests or bonds due and payable, and, if all defaults are made good, then annul such declaration and its consequences.
(b) In addition to the foregoing, such trustee shall have and possess all of the powers necessary or appropriate for the exercise of any functions specifically set forth herein or incident to the general representation of holders of notes, security interests or bonds of the authority in the enforcement and protection of their rights.
(c) Before declaring the principal of any notes, security interests or bonds due and payable, the trustee shall first give thirty days' notice in writing to the authority.
§31-20-18. Investment in notes, security interests and bonds.
The notes, security interests and bonds of the authority are hereby made securities in which the state Board of Investments, all insurance companies and associations and other persons carrying on an insurance business, all banking institutions, trust companies, building and loan associations, savings and loan associations, investment companies and other persons carrying on a banking business and other persons, except administrators, guardians, executors, trustees and fiduciaries, who are now or who may hereafter be authorized to invest in bonds or other obligations of the state, may properly and legally invest funds, including capital in their control or belonging to them. The state Board of Investments, prior to investing funds, including capital in such notes, security interests or bonds of the authority shall first inquire fully into the integrity and sufficiency of the collateral securing such investment and shall be fully satisfied as to the sufficiency and integrity thereof; and may only so invest if the yield therefrom is at least equal to or greater than the prevailing market yield from similar United States twenty-six-week treasury bills. The state Board of Investments shall not purchase evidences of indebtedness having terms in excess of eighteen months from date of purchase to date of maturity.
§31-20-19. Tax exemption.
The exercise of the powers granted to the authority by this article will be in all respects for the benefit of the people of the state for the improvement of their safety, convenience and welfare. Since the operation and maintenance of correctional facilities and correctional facility industries projects will constitute the performance of essential governmental functions, the authority is not required to pay any taxes or assessments upon any such facilities or projects or upon any property acquired or used by the authority or upon the income therefrom. Such bonds, security interests and notes and all interest and income thereon are exempt from all taxation by this state, or any county, municipality, political subdivision or agency thereof, except inheritance taxes.
§31-20-20
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-21. Validity of any pledge, mortgage, deed of trust or security instrument.
It is the intention hereof that any pledge, mortgage, deed of trust or security instrument made by or for the benefit of the authority shall be valid and binding between the parties from the time the pledge, mortgage, deed of trust or security instrument is made; and that the moneys or property so pledged, encumbered, mortgaged or entrusted shall immediately be subject to the lien of such pledge, mortgage, deed of trust or security instrument without any physical delivery thereof or further act.
§31-20-22
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-23
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-24
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-25.
Repealed.
Acts, 2001 Reg. Sess., Ch. 67.
§31-20-26. Legislative oversight committee.
The President of the Senate and the Speaker of the House of Delegates shall each designate five members of their respective houses, at least one of whom shall be a member of the minority party, to serve on a Legislative Oversight committee charged with immediate and ongoing oversight of the authority and the commissions, and functions and duties of the authority and the commissions created by this article. This committee shall report regularly at each legislative session on the implementation of the purposes set forth in section one-a of this article. It shall regularly investigate all matters relating to integrity, probity and foresight in funding, operating and planning the correctional system on state, regional and county levels, and may include the planning, funding, constructing and operating of juvenile detention and correctional facilities. Specifically, the committee shall study and make recommendations to the Legislature as to the revision of the system of classifying adult inmates, with a view variously to decreasing the prison population confined in "maximum security" facilities and to designating and meeting the needs of inmates classified as elderly, disabled or otherwise handicapped. In addition, the committee may study and make recommendations to the Legislature relating to the system of juvenile detention and juvenile corrections.
The committee shall further study and inform the state judiciary of the impact of sentencing on the composition of the prison population in proportion to the use of facilities. It shall recommend alternatives to long-term sentencing, and shall recommend measures to improve the quality of correctional staff and facilitate nonconfrontational contacts with inmates. The committee shall investigate means to structure inmates' time to ensure genuine and willing reaccommodations to societal norms; shall probe and coordinate all available means for funding state, regional and county correctional facilities; and shall contract with penal experts to study these issues in appropriate depth and perspective. Annually, to predict a prudent use of available funds, the committee shall study the profile of the inmate population with regard to its age and social background and needs.
The committee shall recommend to the Legislature the funding required to execute these functions. It shall meet regularly with the governing body of the authority established in this article to determine what may be required for full and timely compliance with all federal mandates and court-ordered changes in the correctional system and shall recommend funding for these changes.
§31-20-27
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-27a
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-28
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-29
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-30
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-30a
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-31
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
§31-20-32
Repealed
Acts, 2018 Reg. Sess., Ch. 107.
PART I. SHORT TITLE, DECLARATION OF POLICY, PURPOSE
OF ARTICLE AND DEFINITIONS.
§31-21-1. Short title.
This article shall be known and may be cited as The West Virginia Land Stewardship Corporation Act.
§31-21-2. Definitions.
The following words used in this article, unless the context clearly indicates a different meaning, are defined as follows:
(1) "Agreement" means any agreement being entered into between the nonprofit corporation and a business, corporation, private party or local or state government.
(2) "All appropriate inquiries" or "AAI" means the process of evaluating a property's environmental conditions and assessing the likelihood of any contamination. Every Phase I environmental assessment must be conducted in compliance with the All Appropriate Inquiries Final Rule at 40 CFR Part 312.
(3) "Board of directors" or "board" means the board of directors of the corporation to be appointed under the provisions of section six of this article.
(4) "Certified sites" means those sites that are developable properties that have been prequalified as having proper land use designation, utilities, transportation improvements, availability, and pricing. Criteria for prequalification include, but are not limited to, established pricing terms and conditions so that property acquisition can be negotiated quickly and without time-consuming delays.
(5) "Charitable purposes" means the 501(c)(3) subclasses of "lessening the burden of the government" where the government identifies a need for the nonprofit entity to assist with a governmental service and the nonprofit collaborates with the government entity, and "environmental protection for the benefit of the public" where the services of the corporation benefit the general public by protecting public health and the environment as well as assisting with state and local economic development initiatives.
(6) "Contaminants" has the same meaning as defined in the environmental acts referenced in subdivision (13) of this section.
(7) "Corporation" means the West Virginia Land Stewardship Corporation, a nonstock, nonprofit corporation to be established under the West Virginia Nonprofit Corporation Act, article two, chapter thirty-one-e of this code, and with nonprofit status under one or more charitable purposes under 501(c) of the Internal Revenue Code of 1986, as amended.
(8) "Corporate directors" means the members of the board of directors of the corporation.
(9) "Department of Environmental Protection" or the "DEP" means the West Virginia Department of Environmental Protection or any successor agency.
(10) "Enforcement tools" means any order, permit, consent decree or environmental covenant or similar mechanisms which restrict or control certain land uses implemented at IEC Sites.
(11) "Engineering controls" or "ECs" means physical controls or measures designed to eliminate the potential for human exposure to contamination by limiting direct contact with contaminated areas, or controlling contaminants from migrating through environmental media into soil, groundwater or off-site.
(12) "Enrolled sites" means properties enrolled and accepted for participation in the voluntary Land Stewardship Program.
(13) "Environmental acts" means the Surface Coal Mining and Reclamation Act set forth in article three, chapter twenty-two of this code; the Air Pollution Control Act set forth in article five, chapter twenty-two of this code; the Water Pollution Control Act set forth in article eleven, chapter twenty-two of this code; the Groundwater Protection Act set forth in article twelve, chapter twenty-two of this code; the Solid Waste Management Act set forth in article fifteen, chapter twenty-two of this code; the Solid Waste Landfill Closure Assistance Program set forth in article sixteen, chapter twenty-two of this code; the Underground Storage Tank Act set forth in article seventeen, chapter twenty-two of this code; the Hazardous Waste Management Act set forth in article eighteen, chapter twenty-two of this code; section 103(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U. S. C. §9603(a)); section 304 of the Emergency Planning and Community Right-To-Know Act of 1986 (42 U. S. C. §§11001 to 11050); the Occupational Safety and Health Act set forth in 29 U. S. C. §§651 to 678; the Hazardous and Solid Waste Amendments of 1984, as amended, set forth in 42 U. S. C. §§6901, et seq.; and the Toxic Substances Control Act set forth in 15 U. S. C. §§2601, et seq.; and any applicable regulations promulgated under the foregoing environmental statutes.
(14) "Governmental controls" means any state laws, ordinances, orders, permits, consent decrees and similar mechanisms which restrict or control certain land uses implemented at IEC Sites in this state.
(15) "Institutional and Engineering Control Sites" or "IEC Sites" means sites in this state that have been remediated or closed under a federal or state environmental program, including, but not limited to, brownfields, underground storage tanks, closed landfills, open dumps, hazardous waste sites, and former mining sites with ongoing water treatment as part of mine reclamation efforts.
(16) "Informational devices" means deed notices or other written documents that describe the remediation that was conducted on an IEC Site, the constituents of concern, and the remediation standards that were achieved. Informational devices shall be filed with property records in the office of the county clerk of the county in which the property is located as an advisory to provide environmental information to future buyers or users of the IEC Site.
(17) "Institutional Controls" or "ICs" means administrative and legal controls that do not involve construction or physically changing the site and are generally divided into four categories: 1) Government controls, 2) Proprietary controls, 3) Enforcement tools, and 4) Informational devices. ICs are nonengineering measures that help minimize the potential for human exposure to contamination and/or protect the integrity of the remedy by limiting land or resource use.
(18) "Nonprofit corporation" means a corporation established under the West Virginia Nonprofit Corporation Act, article two, chapter thirty-one-e of this code, to fulfill the purposes of this article.
(19) "Pollutants" has the same meaning as defined in the environmental acts referenced in subdivision (13) of this section.
(20) "Proprietary controls" mean legal property interests created under real property laws that rely on legal documents recorded in the chain of title for the site, and "run with the land" to bind future landowners. Examples of proprietary controls include, but are not limited to, environmental covenants, deed land use restrictions, water withdrawal prohibitions and continuing right-of-entry easements for former owners or regulators to inspect, monitor and maintain the IECs.
(21) "Regulated substances" has the same meaning as defined in the environmental acts referenced in subdivision (13) of this section.
(22) "Releases" has the same meaning as defined in the environmental acts referenced in subdivision (13) of this section.
§31-21-3. Declaration of policy.
(a) The Legislature finds and declares that developable land is one of West Virginia's most valuable resources in terms of net contributions to the state's economy and tax base.
(b) The Legislature further finds that:
(1) Due to topography, the state has somewhat limited amounts of developable land and that promoting the productive reuse of idled and underutilized commercial, industrial and mining properties will maximize this valuable resource and foster reuse of sites with existing public infrastructure;
(2) An entity that specializes in promoting the productive reuse of idled or underutilized commercial, industrial and mining properties will help the state and its citizenry to plan more wisely for sustainable property reuse and economic development efforts;
(3) An entity created to address and reduce regulatory and economic uncertainty by being a repository of site history and remediation information about formerly used properties can be a benefit to attracting new employers or encouraging businesses to relocate, remain or expand within the state;
(4) An entity that assists the Department of Environmental Protection with a voluntary land stewardship program for the long-term safeguarding of remediated sites using institutional controls and engineering controls can ensure that the remedy remains protective of human health and the environment;
(5) An entity that also assists in identifying formerly used properties that are ready for redevelopment and construction within twelve months or less from acquisition and certifies these properties as "project-ready" for specific industry profiles can increase economic development efforts within the state;
(6) An entity that also acts as a land bank to accept title to formerly used properties as an intermediary step to help seek a purchaser, and ready the properties for reuse through environmental assessment, remediation, building demolition or other efforts, can be a useful ally to the state, local governments, real estate developers and businesses for transacting property conveyances, redevelopment and creating or retaining jobs; and
(7) The promotion of private investment in our developable land and West Virginia businesses will reduce unemployment by creating new or maintaining existing opportunities for the citizens of this state.
§31-21-4. Purpose of article.
The purpose of this article is to provide for the creation of a special purpose nonprofit corporation with a comprehensive mission to:
(1) Assist the DEP in utilizing a voluntary land stewardship program for the long-term safeguarding of IEC Sites to ensure that the remedy remains protective of human health and the environment and to facilitate further economic development and reuse opportunities;
(2) Provide the DEP and other parties with a reliable source of oversight, monitoring and information about IEC Sites under the voluntary land stewardship program;
(3) Establish a land bank as a legal and financial mechanism to accept title to properties and assist in transforming idled and underutilized properties back to productive reuse;
(4) Facilitate reuse and redevelopment by authorizing the conveyance of certain properties to a land bank under a voluntary land bank program and assist the state and local governments with the assembly and clearance of title to property in a coordinated manner;
(5) Promote economic growth by implementing a state certified sites program to identify sites that are ready for construction within twelve months or less and that are certified "project-ready" for specific industry profiles as well as other categories of sites identified for economic development opportunities;
(6) Provide voluntary programs on a fee or subscription basis with the nonprofit corporation to protect human health and the environment as well as assist with a variety of economic development efforts throughout the state; and
(7) Prescribe the powers and duties of the nonprofit corporation; provide for the creation and appointment of a board to govern the nonprofit corporation and to prescribe its powers and duties; and to extend protections against certain environmental liabilities to the nonprofit corporation in order to protect it from liabilities created by third parties.
PART II. WEST VIRGINIA LAND STEWARDSHIP CORPORATION.
§31-21-5. Creation of the West Virginia Land Stewardship Corporation; powers and limitations.
(a) The corporation shall be organized as a nonprofit, nonstock corporation under the West Virginia Nonprofit Corporation Act, article two, chapter thirty-one-e of this code. The property thereof is deemed to be held for an area economic development purpose under subdivision fourteen, subsection (a), section nine, article three, chapter eleven of this code.
(b) The corporation shall apply for recognition of nonprofit exempt status by the United States Internal Revenue Service under one or more charitable purposes within the meaning of section 501(c) of the Internal Revenue Code of 1986, as amended.
(c) The corporate name for the corporation shall be the "West Virginia Land Stewardship Corporation".
(d) The corporation shall have all of the powers of a nonprofit corporation as set forth in chapter thirty-one-e of this code.
(e) Except as otherwise provided in chapter thirty-one-e of this code or in this article, the corporation may do all things necessary or convenient to implement the purposes, objectives and provisions of this article and the purposes, objectives and powers delegated to the board of directors of a nonprofit corporation by other laws or executive orders, including, but not limited to, all of the following:
(1) Adopt, amend and repeal bylaws for the regulation of its affairs and the conduct of its business;
(2) Establish the service offerings and related fees for such services under each of the voluntary programs described herein;
(3) Sue and be sued in its own name and plead and be impleaded, including, but not limited to, defending the corporation in an action arising or resulting from the services, programs and responsibilities arising under this article;
(4) Solicit and accept gifts, grants, labor, loans, services and other aid from any person, or the federal government, this state or a political subdivision of this state or any agency of the federal government or a state institution of higher education or nonprofit affiliates or an intergovernmental entity created under the laws of this state, or participate in any other way in a program of the federal government;
(5) Procure insurance against risk and loss in connection with the programs, property, assets or activities of the corporation;
(6) Invest money of the corporation, at the discretion of the board of directors, in instruments, obligations, securities or property determined proper by the board of directors of the corporation and name and use depositories for its money;
(7) Employ legal and technical experts, contractors, consultants, agents or employees, permanent or temporary, paid from the funds of the corporation. The corporation shall determine the qualifications, duties and compensation of those it employs;
(8) Contract for goods and services and engage personnel as necessary, contract with Regional Brownfield Assistance Centers as set out in section seven, article eleven, chapter eighteen-b of this code, and engage the services of private consultants, managers, legal counsel, engineers, accountants and auditors for rendering professional environmental, legal and financial assistance and advice payable from funds of the corporation;
(9) Create limited liability companies or other sole purpose entities or devices to accept and hold real property as part of administering its programs;
(10) Study, develop and prepare the reports or plans the corporation considers necessary to assist it in the exercise of its powers under this article and to monitor and evaluate progress under this article; and
(11) Enter into contracts for the management of, the collection of rent from, or the sale of real property held by the corporation.
(f) The enumeration of a power in this article may not be construed as a limitation upon the general powers of the corporation. The powers granted under this article are in addition to those powers granted by any other statute or as provided in articles of incorporation filed with the Secretary of State.
(g) The property of the corporation and its income and operations are exempt from all taxation by this state or any of its political subdivisions. Property owned and leased by the corporation as lessor to a commercial lessee or an industrial lessee is hereby declared to be tax exempt and held by the corporation for a public purpose. A payment in lieu of taxes, payable by the lessee, shall be established for any property so leased, in an amount not less than the property tax otherwise payable on the property. The lessee's leasehold interest therein is hereby declared to be a tax exempt leasehold interest held for a public purpose so long as the payment in lieu of taxes is timely paid. Payments made to any county commission, county school board or municipality in lieu of tax pursuant to such agreement shall be distributed as if the payments resulted from ad valorem property taxation.
(h) The corporation may not issue tax-exempt financing or issue bonds.
(i) The corporation does not have the power of eminent domain or the ability to condemn property.
(j) The exercise by the corporation of powers and duties under this article and its activities under the programs described herein shall be considered a necessary public purpose and for the benefit of the public.
(k) The corporation is not liable under the environmental acts or common law equivalents to the state or to any other person by virtue of the fact that the corporation is fulfilling the purposes of this article including, but not limited to, providing land stewardship services or accepting title to property under any program established under this article unless:
(1) The corporation, its employees or agents directly cause an immediate release or directly exacerbate a release of regulated substances on or from a property that is an enrolled site or accepted into the land bank program; or
(2) The corporation, its employees or agents knowingly and willfully do an action which causes an immediate release of regulated substances or violates an environmental act. Liability pursuant to this article is limited to the cost for a response action which may be directly attributable to the corporation's activities, and only if these activities are the proximate and efficient cause of the release or violation. Ownership or control of the property after accepting title in the land bank program does not by itself trigger liability.
(l) The corporation shall adopt a code of ethics for its directors, officers and employees.
(m) The corporation shall establish policies and procedures requiring the disclosure of relationships that may give rise to a conflict of interest. The board of directors of the corporation shall require that any member of the board with a direct or indirect interest in any matter before the corporation disclose the member's interest to the governing body before the board takes any action on the matter.
(n) The programs that are established under this article and administered by the corporation are voluntary programs. Parties can participate in the land stewardship program, certified sites program and land bank program at their option.
(o) In the event of a conveyance of property to the corporation, at the discretion of the corporation, the prior owner may be required to post a bond or other type of financial assurance for any potential future remediation, in order to ensure the original owner's liability is maintained.
(p) The state may contract with the corporation for services for properties for which the state is responsible and may enter into long-term contracts for services that are funded under a trust agreement or provided in an escrow account.
§31-21-6. Board of directors.
(a) The purposes, powers and duties of the corporation shall be exercised by its board of directors. Board meetings shall be chaired by the Governor or his or her designee. The corporation's board shall also consist of the following thirteen members:
(1) The Governor shall appoint three residents of this state;
(2) The West Virginia Chamber of Commerce shall nominate three residents of this state for the Governor's consideration, one of whom the Governor shall appoint;
(3) The West Virginia Manufacturers' Association shall nominate three residents of this state for the Governor's consideration, one of whom the Governor shall appoint;
(4) The West Virginia Coal Association shall nominate three residents of this state for the Governor's consideration, one of whom the Governor shall appoint;
(5) The United Mine Workers Association shall nominate three residents of this state for the Governor's consideration, one of whom the Governor shall appoint;
(6) The West Virginia Environmental Council shall nominate three residents of this state for the Governor's consideration, one of whom the Governor shall appoint;
(7) The AFL-CIO shall nominate three residents of this state for the Governor's consideration, one of whom the Governor shall appoint;
(8) The Secretary of the DEP or his or her designee;
(9) The Secretary of the Department of Commerce or his or her designee;
(10) One member of the Senate appointed by the Senate President who shall serve as an ex officio nonvoting member; and
(11) One member of the House of Delegates appointed by the Speaker who shall serve as an ex officio nonvoting member.
(b) The members appointed by the Governor shall serve terms of four years: Provided, That for the initial appointments the Governor shall designate five to serve for four years each, three to serve for three years each and one to serve for two years. When an appointee resigns, dies or is removed during that person's term, his or her successor shall be appointed for the remaining portion of the unexpired term. Once appointed, a person may be reappointed to successive four-year terms.
(c) Corporate directors shall serve without compensation, but shall be reimbursed for actual and necessary expenses in accordance with the regulations of the board.
(d) The corporate directors shall appoint a person to serve as the executive director of the corporation and at the will and pleasure of the board. A member of the board is not eligible to hold the position of executive director.
(e) Subject to the approval of the board, the executive director shall supervise, and be responsible for, the performance of the functions and programs of the corporation under this article. The executive director shall attend the meetings of the board and shall provide the board of directors with a regular report describing the activities and financial condition of the corporation. The executive director shall furnish the board of directors with information or reports governing the operation of the corporation as the board requires.
(f) The board may do all other things necessary or convenient to achieve the objectives and purposes of the corporation or other laws that relate to the purposes and responsibilities of the corporation.
PART III. VOLUNTARY LAND STEWARDSHIP PROGRAM.
§31-21-7. Voluntary land stewardship program.
(a) When the voluntary land stewardship program is implemented, remediation parties and site owners of IEC Sites will have the option, for a fee, to participate in this program. The fee shall be established by the corporation for services provided for an enrolled site as that term is defined in section four of this article. The fees once established may be revised from time to time in the discretion of the board.
(b) The universe of sites or properties covered under this section of this article includes, but is not limited to, those IEC Sites remediated or closed under a federal or state environmental program, including brownfields, underground storage tanks, closed landfills, open dumps, hazardous waste sites, and former mining sites with ongoing water treatment as part of mine reclamation efforts.
(c) The corporation is further authorized to provide at a minimum the following voluntary land stewardship services for enrolled sites:
(1) Establish or maintain any ICs by filing the appropriate documents or updating such documents when the site is leased, conveyed, subdivided or when remediation occurs: Provided, That the corporation's responsibilities for those activities are expressly identified in agreements for the IEC Site that will be negotiated when a site is enrolled in the voluntary land stewardship program;
(2) Conduct physical inspections of the enrolled sites, including inspecting or monitoring any ECs (e.g., media treatment systems, fences, caps and other mechanisms used as part of the remedy at the IEC Site) and site activities to assure that the enrolled sites continue to comply with the IECs, such as maintenance of ECs and inspecting for compliance with restrictions of specific land uses;
(3) Monitor and operate any required media treatment systems and/or conduct routine surface water, groundwater and or gas monitoring and prepare any monitoring or inspection reports that may be part of the corporation's responsibilities under site enrollment agreements;
(4) Conduct periodic reviews of the county land records to monitor transfers or deed filings to assure that the records are consistent with the required IECs for the enrolled sites, and provide notices to the clerk of the county commission about the results of monitoring or tracking of such records;
(5) Develop administrative records concerning the remediation at enrolled sites in an electronic database, respond to inquiries and coordinate the sharing of such data among various stakeholders, including the DEP, current owners, the remediating parties if not the owners, other state or local agencies (such as county and regional economic development authorities), assessors, potential purchasers, landowners and tenants;
(6) Develop and maintain records and information about enrolled sites for posting on the DEP environmental registry, or any other registry that is used for tracking IECs for IEC Sites in West Virginia and provide for public access to such information; and
(7) Coordinate and share data with West Virginia Miss Utility, the "One-Call" System, including verifying the location of ECs on enrolled sites, providing information about remediation, and sharing any health and safety plans or soil management plans that may be associated with an enrolled site in order to assist any planned excavation at the enrolled site.
§31-21-8. Underwriting.
The enrollment and acceptance process to participate in the land stewardship program shall be developed to include an underwriting review that focuses on: (1) The nature and extent of contamination; (2) the selected remedy; (3) the type of services selected and duration thereof; and (4) the financial costs and risks associated with fulfilling the services.
PART IV. STATE CERTIFIED SITES PROGRAM.
§31-21-9. State certified sites program.
(a) This article hereby authorizes the establishment of a statewide certified sites program. The program shall consist of the development and preparation of certain site specific decision ready documentation or reports that will enable the expedited property transaction for sites that participate in the certified sites program.
(b) The objectives of the certified sites program include, but are not limited to:
(1) Establishing an inventory of identified sites that are ready for development or redevelopment and construction within twelve months or less from the date of acquisition and certify these properties as "project-ready" for specific industry profiles and other categories of developable properties available that can increase economic development efforts within the state;
(2) Improving the state's competitive edge by giving more certainty in time, steps and costs to businesses expanding or locating within the state;
(3) Developing standard criteria that most real estate developers or businesses need when selecting a site for development;
(4) Developing a central source of certified sites and assisting local governments in identifying potential redevelopment properties; and
(5) Demonstrating that the state is committed to promoting and expediting economic development projects for the benefit of its citizenry.
(c) The corporation shall issue a site certification if it determines that the decision ready document has been prepared and completed in accordance with the requirements set forth by the corporation. The corporation may require some or all of the following information set forth in section ten of this article based on the site specific circumstances of the property to be certified.
(d) The issuance of a site certification shall be based on the review and approval of the information submitted to the corporation in an application for the site certification.
§31-21-10. Minimum standards for certified sites.
(a) The corporation shall establish minimum standards that a site must meet to be considered for certification. Minimum standards include, but are not limited to:
(1) Letter of support from a mayor, county commissioner, or county, regional, or municipal economic development official;
(2) Site ownership/control:
(A) Preliminary fifty-year title report and description of liens and encumbrances, unless the corporation determines a shorter period is adequate, or a longer period is necessary, to protect the corporation and a subsequent purchaser of the site;
(B) Letter from the property owner/option holder stating that the site is for sale/lease. If possible, proposed pricing or transactional requirements with a description of any on-site improvements, the current level of investment, and whether the property can be parceled;
(C) Acreage; and
(D) Full legal property description.
(3) Maps:
(A) ALTA map;
(B) Site map showing lot layout, transportation access, roads and likely access points;
(C) USGS topographical map; and
(D) Aerial map.
(4) Phase I environmental site assessment performed by a certified professional within the prior six months, and, if appropriate, any additional environmental site assessments performed by a certified professional within the prior six months. For any properties being remediated, documentation shall be provided about the status and cleanup objectives. For remediated sites, documentation shall be provided about liability protection.
(5) Wetland delineation demonstrating that impacts to waters of the state will be avoided or a mitigation plan approved by the DEP.
(6) Water and wastewater infrastructure to the property line with capacity clearly defined, or a demonstration of the ability to construct and pay for the infrastructure up to the property line.
(7) Transportation infrastructure to the property line, including, but not limited to, the type of roads near the site and whether the roads are local, state or U. S. roads.
(8) Electric infrastructure to the property line with its capacity clearly identified.
(9) Natural gas infrastructure to the property line with its capacity clearly identified.
(10) Water infrastructure to the property line with its capacity clearly identified.
(11) Sewer infrastructure to the property line with its capacity clearly identified.
(12) Telecommunications and/or high speed communications infrastructure to the property line with its capacity clearly identified.
(b) The complete list of certified sites criteria shall be developed into a program application along with appropriate fees for participation as the certified sites program is implemented, and may be revised from time to time as warranted.
§31-21-11. Land bank program.
(a) This article hereby authorizes the establishment of a voluntary state land bank program. Under this program, the corporation is authorized to acquire properties, hold title and prepare them for future use. Prior to acquiring any properties, the corporation shall conduct site appropriate assessments to determine the environmental conditions or issues associated with a particular property. The corporation shall not acquire title to any property unless all pending liens have been satisfied and released. Liabilities, including, but not limited to, environmental liabilities, shall not pass to the corporation by its acquisition of title. Participation in the land bank program under this article shall not relieve an entity of any of its liabilities.
(b) The objective of the land bank program is to assist state and local government efforts for economic development by accepting formerly used or developable properties and preparing the properties so they can be conveyed to other parties to locate or expand businesses and create or retain jobs in this state.
(c) The corporation may acquire by gift, devise, transfer, exchange, foreclosure, purchase or otherwise on terms and conditions and in a manner the corporation considers proper, real or personal property or rights or interests in real or personal property. The corporation may not accept by any conveyance or other action any liability for prior pollution or contamination liabilities that occurred on the property prior to its conveyance to the corporation.
(d) Real property acquired by the corporation may be by purchase and sale agreement, lease purchase agreement, installment sales contract, land contract or otherwise as may be negotiated or structured. The corporation may acquire real property or rights or interests in real property for any purpose the corporation considers necessary to carry out the purposes of this article including, but not limited to, one or more of the following purposes:
(1) Use or development of property the corporation has otherwise acquired;
(2) To facilitate the assembly of property for sale or lease to any other public or private person, including, but not limited to, a nonprofit or for-profit corporation;
(3) To conduct environmental remediation and monitoring activities.
(e) The corporation may also acquire by purchase, on terms and conditions and in a manner the corporation considers proper, property or rights or interests in property.
(f) The corporation may hold and own in its name any property acquired by it or conveyed to it by this state, a foreclosing governmental unit, a local unit of government, an intergovernmental entity created under the laws of this state, or any other public or private person.
(g) All deeds, mortgages, contracts, leases, purchases, or other agreements regarding property of the corporation, including agreements to acquire or dispose of real property, shall be approved by the board of directors and executed in the name of the corporation or any single purpose entity created by the board for the transaction.
(h) All property held by the corporation or a single purpose entity created by the board for a transaction shall be inventoried and classified by the corporation according to title status and suitability for use.
(i) A document including, but not limited to, a deed evidencing the transfer under this article of one or more parcels of property to the corporation by this state or a political subdivision of this state may be recorded within the office of the county clerk of the county in which the property is located without the payment of a fee.
(j) The corporation shall notify the county commission and county assessor in the affected county or counties upon receipt of an application for participation in the land bank program.
§31-21-12. Preserve property value.
(a) The corporation may, without the approval of a local unit of government in which property held by the corporation is located, control, hold, manage, maintain, operate, repair, lease as lessor, secure, prevent the waste or deterioration of, demolish and take all other actions necessary to preserve the value of the property held or owned directly by the corporation or by a single purpose entity created by the board for that purpose.
(b) The corporation may take or perform the following with respect to property held or owned by the corporation or by any special purpose entity created by the board:
(1) Grant or acquire a license, easement, or option with respect to property as the corporation determines is reasonably necessary to achieve the purposes of this article;
(2) Fix, charge, and collect rents, fees and charges for use of property under the direct or indirect control of the corporation or for services provided by the corporation;
(3) Take any action, provide any notice or institute any proceeding required to clear or quiet title to property held by the corporation in order to establish ownership by and vest title to property in the corporation or a special purpose entity created by the board; and
(4) Remediate environmental contamination on any property held by the corporation.
(c) Except as the corporation otherwise agrees by agreement or otherwise, on terms and conditions, and in a manner and for an amount of consideration the corporation considers proper, fair and valuable, including for no monetary consideration, the corporation may convey, sell, transfer, exchange, lease as lessor or otherwise dispose of property or rights or interests in property in which the corporation directly or indirectly holds a legal interest to any public or private person for value determined by the corporation.
(d) The corporation shall be made a party to and shall defend any action or proceeding concerning title claims against property held directly or indirectly by the corporation.
§31-21-13. Contaminated property.
(a) If the DEP determines that conditions on a property transferred to the corporation under this article present an immediate threat to public health, safety and welfare, or to the environment, the corporation may not convey, sell, transfer, exchange, lease or otherwise dispose of the property until after a determination by the DEP that the threat has been remediated and/or eliminated and that conveyance, sale, transfer, exchange, lease or other disposal of the property by the corporation will not interfere with any of the DEP's response activities and will coordinate with the DEP regarding the corporation's activities at the property.
(b) If the corporation has reason to believe that property held by the corporation may be the site of environmental contamination, the corporation shall provide the DEP with any information in the possession of the corporation that suggests that the property may be the site of environmental contamination.
(c) If property held directly or indirectly by the corporation is a site impacted by contamination, pollution, hazardous substances, hazardous or other wastes as defined in the environmental acts described in section four of this article, prior to the sale or transfer of the property under this section, the property is subject to all of the following:
(1) Upon reasonable written notice from the DEP, the corporation shall provide access to the DEP, its employees, its contractors and any other person expressly authorized by the DEP to conduct an investigation and/or response activities at the property. Reasonable written notice may include, but is not limited to, notice by electronic mail or facsimile, in advance of access as the DEP and corporation may agree.
(2) If the DEP determines it is necessary to protect public health, safety and welfare or the environment, the corporation shall place and record deed restrictions on the property as authorized under state environmental statutes.
§31-21-14. Liberal construction.
This article shall be construed liberally to effectuate the legislative intent and the purposes as complete and independent authorization for the performance of every act and thing authorized by this article. All powers granted shall be broadly interpreted to effectuate the intent and purposes of this article and not as a limitation thereof. The corporation has complete control as if it is a private property owner.
§31-21-15. Exemption from taxation.
The property of the corporation shall be exempt from ad valorem property taxation. Property owned and leased by the corporation as lessor to a commercial lessee or an industrial lessee is hereby declared to be tax exempt and held by the corporation for a public purpose. A payment in lieu of taxes, payable by the lessee, shall be established for any property so leased, in an amount not less than the property tax otherwise payable on the property. The lessee's leasehold interest therein is hereby declared to be a tax exempt leasehold interest held for a public purpose so long as the payment in lieu of taxes is timely paid. Payments made to any county commission, county school board or municipality in lieu of tax pursuant to such agreement shall be distributed as if the payments resulted from ad valorem property taxation. The corporation shall be exempt from the taxes imposed by chapter eleven of this code, except that the corporation shall comply with the employer withholding of tax requirements in sections seventy-one through seventy-six, article twenty-one of said chapter eleven. The corporation shall be exempt from sales and use taxes, business and occupation taxes and all other taxes imposed by a county commission, a municipal corporation or other unit of local government, whether now or hereinafter in effect.
§31-21-16. Audits and reports.
(a) As soon as possible after the close of each year, the corporation shall cause an annual audit to be made by an independent certified public accountant of its books, records, accounts and operations. The person performing this audit shall furnish copies of the audit report to the Governor, the secretary of the DEP and the Joint Committee on Government and Finance of the Legislature.
(b) The corporation shall report biannually to the Joint Committee on Government and Finance of the Legislature on the activities of the corporation. The first report shall be filed on or before the second Wednesday in January, 2016.
§31-21-17. Completed purpose.
If the corporation has completed the purposes for which the corporation was organized, the board of directors, by vote of at least a majority of a quorum of the directors and with the written consent of the Governor, may provide for the dissolution of the corporation and may provide for the transfer of any property held by the corporation as required by agreement or, if there are no related agreements, then to the DEP or another state agency or to another nonprofit corporation as directed by the DEP.
§31-21-18. Conflicts of interest.
Notwithstanding any other provision of this article to the contrary, officers and employees of the corporation and its board of directors may hold appointments to offices of any other corporations or businesses and be corporate directors or officers or employees of other entities but are prohibited to be a party or otherwise participate in the transfer of real property and funds from the corporation to the corporations or businesses for which they serve.
§31-21-19. No waiver of sovereign immunity.
Nothing contained in this article may be determined or construed to waive or abrogate in any way the sovereign immunity of the state or to deprive the nonprofit corporation created pursuant to this article, its board of directors, or any officer or employee thereof of sovereign immunity.
§31-21-20. No obligation of the state.
Obligations of the corporation are not debts or obligations of the DEP or the state.
§31-15-16d. Lottery revenue bonds for state park projects.
(a)(1) The Economic Development Authority shall, in accordance with the provisions of this article, issue revenue bonds, in one or more series, from time to time, to pay for all or a portion of the cost of constructing, equipping, improving, or maintaining capital improvement projects under this section or to refund the bonds issued for such purposes, at the discretion of the authority. The principal amount of the bonds issued under this section shall not exceed, in the aggregate principal amount, $80 million. Any revenue bonds issued on or after the effective date of this section which are secured by lottery proceeds shall mature at a time or times not exceeding 30 years from their issuance dates. The principal of, and the interest and redemption premium if any on, the bonds shall be payable solely from the State Parks Lottery Revenue Debt Service Fund established in this section.
(2) There is hereby created in the State Treasury a special revenue fund named the State Parks Lottery Revenue Debt Service Fund into which shall be deposited those amounts specified in §29-22-18e of this code. All amounts deposited in the fund shall be pledged to the repayment of the principal, interest, and redemption premium, if any, on any revenue bonds or refunding revenue bonds authorized by this section. The authority may further provide in the trust agreement for priorities on the revenues paid into the State Parks Lottery Revenue Debt Service Fund as may be necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this section. The State Parks Lottery Revenue Debt Service Fund shall be pledged solely for the repayment of bonds issued pursuant to this section. On or prior to May 1 of each year, commencing upon issuance of the bonds, the authority shall certify to the State Lottery director the principal and interest and coverage ratio requirements for the following fiscal year on any revenue bonds or refunding revenue bonds issued pursuant to this section, and for which moneys deposited in the State Parks Lottery Revenue Debt Service Fund have been pledged, or will be pledged, for repayment pursuant to this section.
(3) After the authority has issued bonds authorized by this section, and after the requirements of all funds have been satisfied, including coverage and reserve funds established in connection with the bonds issued pursuant to this section, any balance remaining in the State Parks Lottery Revenue Debt Service Fund may be used for the redemption of any of the outstanding bonds issued under this section which, by their terms, are then redeemable or for the purchase of the outstanding bonds at the market price, but not to exceed the price, if any, at which redeemable, and all bonds redeemed or purchased shall be immediately canceled and shall not again be issued.
(b) The authority shall expend the bond proceeds, net of issuance costs, reserve funds, and refunding costs, for certified capital improvement projects at any state park. The Division of Natural Resources shall submit a proposed list of capital improvement projects to the Governor. Thereafter, the Governor shall certify to the authority at any time prior to the issuance of bonds under this section, a list of those capital improvement projects at state parks that will receive funds from the proceeds of bonds issued pursuant to this section. At any time prior to the issuance of bonds under this section, the Governor may certify to the authority a revised list of capital improvement projects at state parks that will receive funds from the proceeds of bonds issued pursuant to this section. The Governor shall consult with the Division of Natural Resources prior to certifying a revised list of capital improvement projects to the authority.
(c) Except as may otherwise be expressly provided by the authority, every issue of its notes or bonds shall be special obligations of the authority, payable solely from the property, revenues, or other sources of, or available to, the authority pledged therefor.
(d) The bonds and the notes shall be authorized by the authority pursuant to this section, and shall be secured, be in such denominations, may bear interest at such rate or rates, taxable or tax-exempt, be in such form, either coupon or registered, carry such registration privileges, be payable in such medium of payment and at such place or places and such time or times, and be subject to such terms of redemption as the authority may authorize. The bonds and notes of the authority may be sold by the authority, at public or private sale, at or not less than the price the authority determines. The bonds and notes shall be executed by manual or facsimile signature by the chairman of the board, and the official seal of the authority or a facsimile thereof shall be affixed to or printed on each bond and note and attested, manually or by facsimile signature, by the secretary of the board. In case any officer whose signature, or a facsimile of whose signature, appears on any bonds, notes, or coupons ceases to be such officer before delivery of such bonds or notes, such signature or facsimile is nevertheless sufficient for all purposes the same as if he or she had remained in office until such delivery; and, in case the seal of the authority has been changed after a facsimile has been imprinted on such bonds or notes, such facsimile seal will continue to be sufficient for all purposes.
§31-18-20d. Affordable Housing Fund.
(a) There is hereby created and established a special fund to be designated as the Affordable Housing Fund into which the Housing Development Fund shall deposit the funds received pursuant to §11-15-4c and §11-22-2 of this code. Such funds shall be governed, administered, and accounted for by the Housing Development Fund as a special purpose account separate and distinct from any other moneys, fund or funds owned or managed by the Housing Development Fund. Additionally, the Housing Development Fund shall deposit an additional amount at least equal to the funds received pursuant to §31-18-29 of this code. The moneys deposited in such fund may be invested and reinvested by the Housing Development Fund as authorized under §31-18-6(8) of this code.
(b) The Housing Development Fund shall use the moneys from the Affordable Housing Fund to make, or participate in the making of, loans or grants for eligible activities that shall include, but not be limited to:
(1) Providing funds for new construction, rehabilitation, repair, or acquisition of housing to assist low or moderate income citizens including land and land improvements;
(2) Providing matching funds for federal housing moneys requiring a local or state match;
(3) Providing funds for administrative costs for housing assistance programs or nonprofit organizations eligible for funding pursuant to §31-18-20d(c) of this code if the grants or loans provided will substantially increase the recipient’s access to housing funds or increase its capacity to supply affordable housing;
(4) Providing loan guarantees and other financial mechanisms to facilitate the provision of housing products or services;
(5) Providing funds for down payments, closing costs, foreclosure prevention, home ownership counseling, and security bonds which facilitate the construction, rehabilitation, repair, or acquisition of housing by low to moderate income citizens;
(6) Providing risk underwriting products not provided by private sector entities to facilitate broader accessibility of citizens to other federal or state housing funds or loan programs. The products shall be established using professional risk underwriting standards and separate corporate vehicles may be created and capitalized by the Housing Development Fund to provide the products; and
(7) Providing start-up funds for initial operational expenses of local government programs to reduce substandard housing or inappropriate land use patterns.
(c) Organizations eligible for funding from the Affordable Housing Fund include: (1) Local governments; (2) local government housing authorities; (3) nonprofit organizations recognized as exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code, as amended, codified in 26 U.S.C. § 501(c)(3), and which are organized and operated exclusively for charitable purposes within the meaning of that section, and in accordance with those purposes provide assistance to low or moderate income citizens of this state; and (4) regional or statewide housing assistance organizations that have been recognized as exempt under Section 501(c)(3) of the Internal Revenue Code, as amended, and which provide assistance to low and moderate income or low income citizens of this state.
§31-18-29. Dissolution of West Virginia Affordable Housing Trust Fund.
Upon termination of the West Virginia Affordable Housing Trust Fund, the Housing Development Fund shall provide for the payment of all debts, obligations, or expenses of the Affordable Housing Trust Fund, and all assets remaining in the Affordable Housing Trust Fund shall be transferred to the West Virginia Housing Development Fund.
§31-15A-17c. Critical Needs and Failing Systems Sub Account.
Notwithstanding any provision of this article to the contrary:
(a) The Water Development Authority shall establish a separate and segregated sub account in the Infrastructure Fund designated the Critical Needs and Failing Systems Sub Account into which the council may instruct the Water Development Authority to transfer from the uncommitted loan balances on June 30 each year, up to $12 million.
(b) The council shall direct the Water Development Authority to make loans or grants from the Critical Needs and Failing Systems Sub Account when the council determines that a project will address a critical immediate need by:
(1) The continuation of water or wastewater services;
(2) Addressing water facility or wastewater facility failure due to the age of the facility or facilities; or
(3) Providing extensions to a water facility or wastewater facility that will add customers with a total project cost of less than $2 million: Provided, That a person or governmental agency, as those terms are defined in §31-15A-2 of this code, shall pay any overage not to exceed 10 percent of the total project cost.
(c) Grant limitations and allocations contained in §31-15A-10(b) and §31-15A-10(c) of this code do not apply to grants made from the Critical Needs and Failing Systems Sub Account.
§31-15-23a. Economic Development Project Fund.
(a) For the purposes of this section, the term "high impact development project" means a project meeting the following criteria, according to a resolution adopted by the authority:
(1) The Governor has requested, in writing, that the project be approved for financing by the authority in an amount of $50 million or greater;
(2) The industrial development agency or enterprise undertaking the project will privately invest an amount of $50 million or greater in the project; and
(3) The project meets or exceeds the loan per job ratio criteria for high-impact development projects that may be established, in consultation with the Secretary of the Department of Economic Development, by the board of directors.
(b) There is hereby created a special revenue fund in the State Treasury known as the Economic Development Project Fund. The fund shall consist of all moneys appropriated to the authority during the regular session of the Legislature, 2022, from available revenue surplus funds, transfers from the Industrial Development Loans fund, gifts, grants, contributions, any earnings or interest accruing to said fund, and any other moneys appropriated to said fund by the Legislature. The authority may invest and reinvest moneys in the fund with the West Virginia Investment Management Board or the Board of Treasury Investments.
(c) The authority may transfer funds in the Industrial Development Loans fund to the Economic Development Project Fund created by this section and any loan repayments or other amounts that would otherwise have been paid into the Industrial Development Loans fund may be paid into the Economic Development Project Fund created by this section.
(d) The authority may use moneys in the Economic Development Project Fund to offer incentives for business formation or expansion and provide assistance with site development or other concerns to industrial development agencies or enterprises according to the requirements of this article as set forth in this subsection.
(1) High impact development projects. — In addition to any powers granted to the authority under any other section of this code, the authority may finance any high impact development project under this section by offering incentives for business formation or expansion to industrial development agencies or enterprises in this state in the form of loans, grants, or other offers of financial assistance or aid upon such terms as the Governor may request and the authority shall deem appropriate: Provided, That money available to fund such high impact development projects may not exceed $300 million dollars annually, unless otherwise appropriated by the Legislature or increased by interest payments received pursuant to this subsection. Funds which are paid back to the authority as principal pursuant to this subsection may be utilized and relent by the authority for the same purpose. Any interest accruing shall be retained and made available for high impact projects as set forth in this subsection and shall not revert to the General Revenue Fund.
(2) Traditional loans. — The authority may finance any economic development project under this section by offering incentives for business formation or expansion to industrial development agencies or enterprises in this state in the form of loans, which shall be repaid to provide financing for subsequent borrowers: Provided, That money available to fund such traditional loans may not exceed $250 million dollars annually, on a rolling basis, unless otherwise appropriated by the Legislature or increased by interest payments received pursuant to this subsection. Funds which are paid back to the authority as principal pursuant to this subsection may be utilized and relent by the authority for the same purpose. Any interest accruing shall be retained and made available for traditional loans as set forth in this subsection and shall not revert to the General Revenue Fund.
(3) Business retention projects. — The authority may finance any economic development project under this section by offering incentives for business development and expansion to industrial development agencies or enterprises already existing and operating in the State of West Virginia in the form of loans, which shall be repaid to provide financing for subsequent borrowers: Provided, That money available to fund such business retention loans may not exceed $50 million dollars annually, on a rolling basis, unless otherwise appropriated by the Legislature or increased by interest payments received pursuant to this subsection. Funds which are paid back to the authority as principal pursuant to this subsection may be utilized and relent by the authority for the same purpose. Any interest accruing shall be retained and made available for business retention projects as set forth in this subsection and shall not revert to the General Revenue Fund.
(e) The authority shall keep itemized records of all fund transactions and agreements entered into in furtherance of the Economic Development Project Fund expenditures. In administering the fund, the authority shall adopt appropriate accounting practices and internal controls, including, but not limited to, strict compliance with the requirements of §5A-8-9 of this code. Fund transactions shall be subject to an annual audit by an independent firm of certified public accountants.
(f) The authority shall prepare and submit to the Joint Committee on Government and Finance and the Governor an annual report addressing the status of each project with outstanding financing issued pursuant to this section. The report shall, at a minimum, provide project-specific data addressing:
(1) The outstanding amount of authority financing for each project;
(2) The total amount of private investment in each project;
(3) The number of jobs created by each project since the project’s inception; and
(4) The number of jobs maintained by each project.
(g) Except for the records and audit required under subsection (e) of this section and the annual reports required under subsection (f) of this section, any documentary material, data, or other writing made or received by the authority relating to high impact development projects under this section, shall be exempt from §29B-1-1 et seq. of this code: Provided, That any agreement or resolution entered into or signed by the authority which obligates public funds for any high-impact development project shall be subject to inspection and copying pursuant to §29B-1-1 et seq. of this code as of the date the agreement or resolution is entered into, signed, or otherwise made public.
§31-15-8b. Facilitation of the State Parks Enhancement Loan Insurance Program.
The authority shall cooperate with the Division of Natural Resources and the Board of Trustees of the West Virginia State Parks and Recreation Endowment Fund to facilitate the administration of the State Parks Enhancement Loan Insurance Program established by §20-5A-3 of this code. The executive director shall make the authority's staff available to provide guidance and assistance for the administration of the program. Any requirement or restriction on the authority's loan insurance programs and other operations established by this article shall not be applicable to the administration of the State Parks Enhancement Loan Insurance Program.