W. Va. Code R. § 145-16-3

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 145-16-3 - Definitions

For purposes of this rule:

3.1. "Act" means the West Virginia Tourism Development District Act set forth in W. Va. Code § 5B-1-9.

3.2. "Applicant" means an Approved Company that is applying or has applied to the Development Office for establishment of a Tourism Development District and which has entered into a TDA Agreement with the Development Office pursuant to W. Va. Code § 5B-2E-6 to design, acquire, construct, and equip a Tourism Development Project or a Tourism Development Expansion Project.

3.3. "Application" means an application for establishment of a Tourism Development District that is filed with the Director of the Development Office pursuant to W. Va. Code § 5B-1-9 and this rule, which provides all the information and documentation required by this rule.

3.4. "Application Fee" or "Fees" means the fee provided for in section five of this rule.

3.5. "Approved Company" means any eligible company approved by the Development Office pursuant to W. Va. § 5B-2E-3 seeking to design, acquire, construct, and equip a Tourism Development Project or a Tourism Development Expansion Project.

3.6. "Approved Costs" or "Project Costs" means:

3.6.1. Obligations incurred for labor and to vendors, contractors, subcontractors, builders, suppliers, delivery persons and material persons in connection with the acquisition, construction, equipping, or installation of a Project;

3.6.2. The costs of acquiring real property or interests in real property and any costs incidental thereto for a Project;

3.6.3. The costs of contract bonds and of insurance of all kinds that may be required or necessary during the course of the acquisition, construction, equipping, or installation of a Project which is not paid by the vendor, supplier, delivery person, contractor or otherwise provided;

3.6.4. All costs of architectural and engineering services, including, but not limited to estimates, plans and specifications, preliminary investigations and supervision of construction, installation, as well as for the performance of all the duties required by or consequent to the acquisition, construction, equipping, or installation of a Project;

3.6.5. All costs required to be paid under the terms of any contract for the acquisition, construction, equipping, or installation or installation of a Project;

3.6.6. All costs required for the acquisition, construction, equipping, or installation of Infrastructure on the real property on which the Project is located, or necessary to provide such services to the Project; and

3.6.7. All other costs comparable with those described in this subdivision.

3.7. "Control" means with respect to a corporation, ownership, directly or indirectly, of stock possessing fifty percent (50%) or more of the total combined voting power of all classes of the stock of the corporation entitled to vote. "Control" means with respect to a trust, ownership, directly or indirectly, of fifty percent (50%) or more of the beneficial interest in the principal or income of the trust. The ownership of stock in a corporation or of a capital or profits interest in a partnership or association or of a beneficial interest in a trust is determined in accordance with the rules for constructive ownership of stock provided in section 267(c) of the United States Internal Revenue Code of 1986, as amended, other than paragraph (3) of that section.

3.8. "Department of Commerce" means the Department of Commerce created in the executive branch of state government in W. Va. Code § 5F-1-2(a).

3.9. "Department of Transportation" means the Department of Transportation created in the executive branch of state government in W. Va. Code § 5F-1-2(a).

3.10. "Designee" means any officer or employee of the Director of the Development Office or the Secretary of Commerce, duly authorized, directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this rule.

3.11. "Development Office" means the West Virginia Development Office created in W. Va. Code § 5B-2-1et seq., which is an agency that is incorporated in and administered as part of the Department of Commerce, as provided in W. Va. Code § 5B-1-2.

3.12. "Director" means the Executive Director of the West Virginia Development Office.

3.13. "Economic Development Project and/or Plan" means written and graphic material for provision of a Tourism Development Project or Tourism Development Expansion Project that at a minimum includes the following information:

3.13.1. Name, address and phone number of property owner(s).

3.13.2. Name, address and phone number of property developer (if not the owner).

3.13.3. Name of the development project, date, direction, and scale.

3.13.4. Date Economic Development Plan was prepared.

3.13.5. Name, address and phone numbers of project architect(s), engineer(s) and landscape architect(s).

3.13.6. Intended land-use or nature of development.

3.13.7. Vicinity map showing general location, surrounding property and major physical features.

3.13.8. General layout of property showing shape, approximate dimensions, and total acreage.

3.13.9. A conceptual site development plan showing alignment of building(s), what developer anticipates will be the use of the building(s) and any phases of the project, if the project will be done in phases.

3.13.10. A description of the infrastructure that will be provided by the developer.

3.14. "Infrastructure" includes, but is not limited to, broadband Internet, electric lines, natural gas or propane lines, water lines, water storage and treatment facilities, fiber optic communication lines, sewer lines, sewer treatment facilities, storm water management and control facilities, electrical power facilities, solar power generation facilities, roads, streets, turn lanes, traffic signals, bridges, sidewalks, pedestrian trails, bike paths, parking lots, parking structures, curbs, gutters, street lighting, street signage, and street scaping located within the Tourism Development District, or located outside the Tourism Development District but necessary to serve the Project. "Infrastructure" does not include customer charges for connection to a utility or charges for the utility service used to consumed by the utility customer.

3.15. "Own or control the property in the Tourism Development District" means that the Applicant or a related person as defined in this rule shall own, control, or have the right of use to all real property located within the proposed Tourism Development District.

3.16. "Person" includes any natural person, corporation, partnership, or entity treated as a partnership for federal and state income tax purposes.

3.17. "Project" means a Tourism Development Project and/or a Tourism Development Expansion Project for which a Tourism Development District is proposed or for which the Director of the West Virginia Development Office has approved the creation of a Tourism Development District.

3.18. "Related person" means:

3.18.1. A corporation, partnership, or entity treated as a partnership for federal and state income tax purposes, or an association or trust controlled by the Applicant;

3.18.2. An individual, corporation, partnership, or entity treated as a partnership for federal and state income tax purposes, or an association or trust that is in control of the Applicant;

3.18.3. A corporation, partnership, or entity treated as a partnership for federal and state income tax purposes, or an association or trust controlled by an individual, corporation, partnership, or entity treated as a partnership for federal and state income tax purposes, or by an association or trust that is in control of the Applicant; or

3.18.4. A member of the same controlled group as the Applicant.

3.19. "Secretary of Commerce" means the chief executive officer of the Department of Commerce, or his or her designee.

3.20. "Significant economic development activity" means:

3.20.1. Total private real and personal property investment in a project that is in excess of twenty-five million dollars ($25,000,000), through acquisition of real property, infrastructure, new construction, reconstruction, installation of fixtures, and equipping of the Project; and

3.20.2. Creation of additional annual payroll within the Tourism Development District in excess of one million dollars ($1,000,000).

3.21. "Site" means the real property owned or controlled by the Approved Company, or real property for which the Approved Company has the right of use, in the proposed Tourism Development District which is subject to a TDA Agreement; provided, however that the Site may include public rights of way and easements, specifically including, but not limited to roads, sidewalks, and bridges.

3.22. "TDA Act" means the West Virginia Tourism Development Act set forth in W. Va. Code § 5B-2E-1, et seq.

3.23. "TDA Agreement" means a Tourism Development Agreement entered into, pursuant to W. Va. Code § 5B-2E-6, between the Development Office and an Approved Company with respect to a Tourism Development Project or Tourism Development Expansion Project.

3.24. "Tourism Development District" means an area designated by the Director of the Development Office, pursuant to W. Va. Code § 5B-1-9 and in accordance with this rule, where a Tourism Development Project or Tourism Development Expansion Project is to be acquired, constructed, equipped, developed, expanded, and operated, and which satisfies the following criteria:

3.24.1. The Tourism Development District shall be entirely or partially within the corporate limits of a municipality which has a population of two thousand (2,000) or less as of the most recent census, as specified in W. Va. Code § 8-1-4;

3.24.2. The Applicant shall designate the boundaries of the proposed Tourism Development District;

3.24.3. The Approved Costs of the Project shall equal or exceed twenty-five million dollars ($25,000,000); and

3.24.4. The Applicant shall have a TDA Agreement with the Development Office for the Project.

3.25. "Tourism Development District Agreement" means an agreement entered into between the Development Office and Approved Company, pursuant to the Act, which agreement sets forth the agreement of the parties thereto for the design, acquisition, construction and equipping, and all permits and regulations related to the subsequent operation, of the Project.

3.26. "Tourism Development Expansion Project" shall have the meaning defined in W. Va. Code § 5B-2E-3.

3.27. "Tourism Development Project" shall have the meaning defined in W. Va. Code § 5B-2E-3.

3.28. "West Virginia Code" or "W. Va. Code" means the Code of West Virginia, one thousand nine hundred thirty-one (1931), as amended.

W. Va. Code R. § 145-16-3