Current through Register Vol. XLI, No. 24, June 14, 2024
Section 47-61-4 - Community Infrastructure Investment Agreements4.1. Each proposed Agreement must be submitted to the Secretary for review and approval as part of the application for a certificate, using a standard form of agreement as prescribed by the Secretary. The public utility and the person intending to construct a community infrastructure project may agree to terms which are different from or additional to those contained in the standard form of agreement provided such terms are set forth in an appendix to the standard form of agreement. The Secretary may approve, reject, or modify such additional or different terms. In the event the Secretary rejects or modifies such additional different terms, construction on the project will not be initiated until the certificate has been issued and a copy of the executed Agreement, as modified by the Secretary, has been returned to the Secretary.4.2. Each proposed Agreement must contain the following information: 4.2.a. The project facilities must be engineered and constructed in accordance with the requirements for new construction established by the public utility;4.2.b. Proof or certification of the financial ability of the public utility to maintain and operate the public facilities;4.2.c. Certification that upon completion and activation of the project facility or improvements to the project facility, the title to the public facility must be transferred without cost to the public utility;4.2.d. A finding that the construction of the new public facility, or the substantial improvement or expansion of an existing public facility, either: (I) fosters economic growth by promoting commercial, industrial or residential development; and (ii)improves water quality or otherwise enables the affected territory to achieve compliance with any applicable state or federal health or environmental law; 4.2.e. The public utility will receive or otherwise obtain without cost to the public all necessary rights-of-way for the operation of the public facility;4.2.f. The rates charged by a public utility to new customers to be served by the project facility must be the rates in effect at the time of transfer of the project facility to the utility, unless the revenues to be generated from new customers at the utility's rates in effect at the time of transfer are less than the utility's cost of service of the project facility, in which case the utility shall charge rates to the new customers to be served by the project facility which are expected to equal or exceed by no more than 15% the utility's expected cost of service of the project facility, until such time as new rates may be finally enacted by the public utility and approved by the Public Service Commission of West Virginia. The rates charged by the public utility to existing customers must not be adversely impacted as a result of the obligation of the public utility pursuant to the community infrastructure investment agreement;4.2.g. Confirmation that the agreement does not violate any of the bond covenants imposed on the public utility;4.2.h. Proof that necessary permits, where applicable, have been obtained from the Bureau for Public Health and the Department of Environmental Protection;4.2.i. Evidence that the person responsible for the construction of or improvements to the public facility has provided funding to the public utility for the engagement of an engineer qualified to inspect and certify that the project has been constructed in accordance with plans approved by the Bureau for Public Health and the Department, and that said project has been constructed in a good and workmanlike manner; and4.2.j. Proof that the person responsible for construction of or improvements to the public facility has obtained a performance bond securing performance for the benefit of the public utility equal to the estimated cost of construction: Provided, that the form of the bond required by this section shall be approved by the Secretary and may include, at the option of the Secretary, surety bonding, collateral bonding (including cash and securities), bonding fund participation as established by the Secretary, self-bonding or a combination of these methods.4.3. In addition to the requirements contained in section 4.2., each Agreement must contain or require the following items: 4.3.a. A one year warranty bond equal to the cost of construction from the person responsible for the construction of the project facilities;4.3.b. A payment bond equal to the cost of construction from the person responsible for the construction of the project facilities, or a release of liens regarding the system as specified in the Agreement;4.3.c. The required performance bond will remain in effect until the project facility has been accepted by the public utility; and4.3.d. The public utility must monitor the construction of the project facilities for quality control.4.4. In the absence of enough new customers to reasonably shoulder the initial burden of additional operation and maintenance expenses imposed upon the public utility as a result of completion and transfer of the project, the person responsible for the construction may be required to post a bond in a form approved by the Secretary in an amount necessary to cover any monthly revenue shortfalls for a reasonable period of time.