West Virginia Code 17-27-11 – Material default; remedies
(a) Except upon written agreement of the developer and any other parties identified in the comprehensive agreement, the division may exercise any or all of the following remedies provided in this section or elsewhere in this article to remedy any material default that has occurred or may continue to occur.
Terms Used In West Virginia Code 17-27-11
- Comprehensive agreement: means the comprehensive agreement by and between a developer and the division required by section nine of this article. See West Virginia Code 17-27-2
- Developer: means the private entity that is responsible for the acquisition, construction or improvement of a qualifying transportation facility. See West Virginia Code 17-27-2
- Division: means the Division of Highways. See West Virginia Code 17-27-2
- Lien: A claim against real or personal property in satisfaction of a debt.
- Material default: means any default by the developer in the performance of its duties under subsection (f), section eight of this article that jeopardizes adequate service to the public from a qualifying transportation facility and remains unremedied after the division has provided notice to the developer and a reasonable cure period has elapsed. See West Virginia Code 17-27-2
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Qualifying transportation facility: means one or more transportation facilities acquired, constructed or improved by a private entity pursuant to this article. See West Virginia Code 17-27-2
- Transportation facility: means any public inland waterway port facility, road, bridge, tunnel, overpass or existing airport used for the transportation of persons or goods, and the structures, equipment, facilities or improvements necessary or incident thereto. See West Virginia Code 17-27-2
- User fees: Fees charged to users of goods or services provided by the government. In levying or authorizing these fees, the legislature determines whether the revenue should go into the treasury or should be available to the agency providing the goods or services.
(1) To elect to take over the transportation facility or facilities and in that case, it shall succeed to all of the rights, title and interest in the transportation facility or facilities, subject to any liens on revenues previously granted by the developer to any person providing financing for the facility or facilities and the provisions of this section;
(2) To exercise the power of condemnation to acquire the qualifying transportation facility or facilities;
(3) To terminate the comprehensive agreement and exercise any other rights and remedies that may be available to it at law or in equity, subject only to the express limitations of the terms of the comprehensive agreement; and
(4) To make or cause to be made any appropriate claims under the performance or payment bonds required by this article.
(b) If the division elects to take over a qualifying transportation facility pursuant to subdivision (1), subsection (a) of this section, the division may acquire, construct, or improve the transportation facility, impose user fees for the use of the transportation facility and comply with any service contracts as if it were the developer. Any revenues that are subject to a lien shall be collected for the benefit of, and paid to, secured parties, as their interests may appear, to the extent necessary to satisfy the developer’s obligations to secured parties, including the maintenance of reserves and the liens shall be correspondingly reduced and, when paid off, released. The full faith and credit of the division may not be pledged to secure any financing of the developer by the election to take over the qualifying transportation facility. Assumption of development of the qualifying transportation facility does not obligate the division to pay any obligation of the developer from sources other than revenues.