ENGROSSED


Senate Bill No. 580

(By Senators Wagner, Bailey, Bowman, Buckalew, Miller,

Plymale, Walker, and White)

____________

[Originating in the Committee on Government Organization;


reported March 1, 1995.]



A BILL to amend chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article five, relating to the creation of the section of parks and recreation within the division of natural resources; the powers of the director; authorization of director to employ up to six unclassified personnel continued; purpose of the section of parks and recreation; utilization of former railroad subdivision for establishment of Greenbrier river trail and the North Bend rail trail; the authority of the director to issue park development revenue bonds; the reception of grants and gifts; tax exemption; investment in notes, bonds and security interests; liability; trustee for park development revenue bonds; proceeds of park development revenue bonds; grants and gifts; authority of director to pledge revenue from recreational facilities as security; management and control of project; provisions of constitution and law observed; restaurants and other facilities; contracts for operation of facilities; the correlation of projects and services; and discounts.


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Be it enacted by the Legislature of West Virginia:
That chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article five, to read as follows:
ARTICLE 5. PARKS AND RECREATION.
§20-5-1. Section created; chief of section; existing obligation;

appropriations.
(a) The section of parks and recreation of the division of natural resources shall have within its jurisdiction and supervision the parks functions of the former division of tourism and parks, transferred to the division of natural resources pursuant to the provisions of section twelve, article one, chapter five-b of this code enacted in the year one thousand nine hundred ninety-four. The section of parks and recreation shall be under the control of a chief, to be appointed by the director, who shall be qualified by reason of exceptional training and experience in the field of public recreation administration or natural resource management.
(b) The division of natural resources shall have the duty and authority to administer those properties which are a part of the state parks and public recreation system, to which legal title has remained with the division of natural resources, while the section of parks and recreation was part of the former division of tourism and parks.
(c) All existing contracts and obligations of the section of parks and recreation, including those in the name of the division of tourism and parks administered on behalf of the section of parks and recreation, shall remain in full force and effect and any existing contracts and obligations relating to parks and recreation shall be performed by the division of natural resources.
(d) The transfer, made pursuant to executive order, to the division of natural resources of the unexpended balance existing on the thirtieth day of June, one thousand nine hundred ninety-five, in any appropriation originally made to the division of tourism and parks is hereby ratified.
§20-5-2. Powers of the director with respect to the section of parks and recreation.

The director of the division of natural resources shall be responsible for the execution and administration of the provisions herein as an integral part of the parks and recreation program of the state and shall organize and staff the section of parks and recreation for the orderly, efficient and economical accomplishment of these ends. The authority granted in the year one thousand nine hundred ninety-four to the director of the division of natural resources to employ up to six additional unclassified personnel to carry out the parks functions of the division of natural resources is continued.
The director of the division of natural resources shall further have the authority, power and duty to:
(a) Establish, manage and maintain the state's parks and recreation system for the benefit of the people of this state, and do all things necessary and incidental to the development and administration thereof;
(b) Acquire property for the state in the name of the division of natural resources by purchase, lease or agreement, retain, employ and contract with legal advisors and consultants, or accept or reject for the state, in the name of the division, gifts, donations, contributions, bequests or devises of money, security or property, both real and personal, and any interest in such property, including lands and waters, for state park or recreational areas for the purpose of providing public recreation: Provided, That the provisions of section twenty, article one of this chapter are specifically made applicable to any acquisitions of land: Provided, however, That any sale, exchange or transfer of property for the purposes of completely land acquisitions or providing improved recreational opportunities to the citizens of the state shall be subject to the procedures of article one-a, chapter twenty of this code: Provided further, That no sale of any park or recreational area property, including lands or waters, used for purposes of providing public recreation on the effective date of this article and no privatization of any park may occur without statutory authority.
(c) Approve and direct the use of all revenue derived from the operation of the state parks and public recreation system for the operation, maintenance and improvement of the system or for the retirement of park development revenue bonds;
(d) Approve and direct the use of no less than twenty percent of the: (i) Funds appropriated for the purposes of advertising and marketing expenses related to the promotion and development of tourism, pursuant to subsection (j), section eighteen, article twenty-two, chapter twenty-nine of this code; and (ii) funds authorized for expenditure from the tourism promotion fund by the commissioner of the former division of tourism and parks, or its successor agency, for purposes of direct advertising, pursuant to section ten, article twenty-two-a, chapter twenty-nine of this code and section nine, article one, chapter five-b of this code, to effectively promote and market the state's parks, state forests, state recreation areas and wildlife recreational resources;
(e) Issue park development revenue bonds as provided in this article;
(f) Provide for the construction and operation of cabins, lodges, resorts, restaurants and other developed recreational service facilities;
(g) Promulgate rules to control uses of the parks, subject to the provisions of chapter twenty-nine-a of this code: Provided, That the director shall not permit public hunting, the exploitation of minerals or the harvesting of timber for commercial purposes in any state park;
(h) Notwithstanding any provision of this code to the contrary, the director may, for amounts less than two hundred fifty dollars, exempt designated state parks from the requirement that all payments must be deposited in a bank within twenty-four hours; and
(i) The director of the division of natural resources shall waive the use fee normally charged to an individual or group for one day's use of a picnic shelter or one week's use of a cabin in a state recreation area when the individual or group donates the materials and labor for the construction of the picnic shelter or cabin: Provided, That the individual or group was authorized by the director to construct the picnic shelter or cabin and that it was constructed in accordance with the authorization granted and the standards and requirements of the division pertaining to such construction.
The individual or group to whom the waiver is granted may use the picnic shelter for one reserved day or the cabin for one reserved week during each calendar year until the amount of the donation equals the amount of the loss of revenue from the waiver or until the individual dies or the group ceases to exist, whichever first occurs. The waiver is not transferable. The director shall permit free use of picnic shelters or cabins to individuals or groups who have contributed materials and labor for construction of picnic shelters or cabins prior to the effective date of this section. The director shall promulgate a legislative rule in accordance with the provisions of chapter twenty-nine-a of this code governing the free use of picnic shelters or cabins provided for in this section, the eligibility for free use, determining the value of the donations of labor and materials, the appropriate definitions of a group and the maximum time limit for such use.
§20-5-3. Section of parks and recreation; purpose; powers and duties generally.

The purposes of the section of parks and recreation shall be to promote conservation by preserving and protecting natural areas of unique or exceptional scenic, scientific, cultural, archaeological or historic significance and to provide outdoor recreational opportunities for the citizens of this state and its visitors. It shall be the duty of the section of parks and recreation to have within its jurisdiction and supervision:
(a) All state parks and recreation areas, including all lodges, cabins, swimming pools, motorboating and all other recreational facilities therein, except the roads therein which, by reason of section one, article four, chapter seventeen of this code, are transferred to the state road system and to the responsibility of the commissioner of highways with respect to the construction, reconstruction and maintenance of the roads or any future roads for public usage on publicly-owned lands for future state parks, state forests and public hunting and fishing areas;
(b) The authority and responsibility to do the necessary cutting and planting of vegetation along road rights-of-way in state parks and recreational areas;
(c) The administration of all laws and regulations relating to the establishment, development, protection, use and enjoyment of all state parks and state recreational facilities consistent with the provisions of this article;
(d) The continued operation and maintenance of the Berkeley Springs historical state park, in Morgan county, as a state recreational facility, designated the Berkeley Springs sanitarium under prior enactment of this code;
(e) The continued operation and maintenance of that portion of Washington Carver camp in Fayette county formerly incorporated within the boundaries of Babcock state park;
(f) The continued operation and maintenance of Camp Creek state park in Mercer county, as a state recreational facility formerly delineated according to section three, article one-a, chapter nineteen of this code;
(g) The continued operation and maintenance of Moncove Lake state park as a state recreational facility formerly delineated pursuant to enactment of section thirteen, article one, chapter five-b of this code in the year one thousand nine hundred ninety;
(h) The continued protection, operation and maintenance of approximately seventy-five miles of right-of-way along the former Greenbrier subdivision of the Chessie railroad system between Caldwell in Greenbrier county and Cass in Pocohontas county, designated the Greenbrier river trail, including the protection of the trail from motorized vehicular traffic and operation for the protection of adjacent public and private property; and
(i) The continued operation and maintenance of approximately sixty and fifty-seven one-hundredths miles of right-of-way of the CSX railway system between Walker in Wood county and Wilsonburg in Harrison county, designated the North Bend rail trail, including the protection of the trail from motorized vehicular traffic and operation for the protection of adjacent public and private property.
§20-5-4. Definitions; state parks and recreation system.

As used in this article, unless the context clearly requires otherwise:
"Bonds" shall mean bonds issued by the director.
"Cost of project" shall embrace the cost of construction, the cost of all land, property, material and labor which are deemed essential thereto, cost of improvements, financing charges, interest during construction and all other expenses, including legal fees, trustees', engineers' and architects' fees which are necessary or properly incidental to the project.
"Project" shall be deemed to mean collectively the acquisition of land, the construction of any buildings or other works, together with incidental approaches, structures and facilities, reasonably necessary and useful in order to provide new or improved recreational facilities.
"Recreational facilities" shall mean and embrace cabins, lodges, swimming pools, golf courses, restaurants, commissaries and other revenue producing facilities in any state park.
"Rent or rental" shall include all moneys received for the use of any recreational facility.
§20-5-5. Authority of director to issue park development revenue bonds; grants and gifts.

The director, with the approval of the governor, is hereby empowered to raise the cost of any project, as defined in this article, by the issuance of park development revenue bonds of the state, the principal of and interest on the bonds shall be payable solely from the special fund herein provided for the payment. The bonds shall be authorized by order of the director, approved by the governor, which shall recite an estimate by the director of the cost of the project, and shall provide for the issuance of bonds in an amount sufficient, when sold as hereinafter provided, to produce the cost, less the amount of any grant or grants, gift or gifts received, or in the opinion of the director expected to be received from the United States of America or from any other source. The acceptance by the director of any and all grants and gifts, whether in money or in land, labor or materials, is hereby expressly authorized. All bonds shall have and are hereby declared to have all the qualities of negotiable instruments under the provisions of article eight, chapter forty-six of this code. The director shall have the power:
(a) To issue negotiable bonds, security interests or notes and to provide for and secure the payment thereof, and to provide for the rights of the holders thereof, and to purchase, hold and dispose of any of its bonds, security interests or notes.
(b) To sell, at public or private sale, any bond or other negotiable instrument, security interests or obligation of the director in any manner and upon such terms as the director deems would best serve the purposes set forth herein.
(c) To issue its bonds, security interests and notes payable solely from the revenues or funds available to the director therefor; and the director may issue its bonds, security interests or notes in such principal amounts as it shall deem necessary to provide funds for any purposes herein including:
(i) The payment, funding or refunding of the principal of, interest on, or redemption premiums on any bonds, security interests or notes issued by it whether the bonds, security interests, notes or interest to be funded or refunded have or have not become due.
(ii) The establishment or increase of reserves to secure or to pay bonds, security interests, notes or the interest thereon and all other costs or expenses of the director incident to and necessary or convenient to carry out its purposes and powers. Any bonds, security interests or notes may be additionally secured by a pledge of any revenues, funds, assets or moneys of the special fund herein provided.
(d) 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 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 ten years from date of issuance of the notes renewed, and no such refunding bonds shall be issued to mature more than twenty-five years from the date of original issuance.
(e) To apply the proceeds from the sale of renewal notes, security interests or refunding bonds to the purchase, redemption or payment of the notes, security interests or bonds to be refunded.
(f) To accept gifts or grants or 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.
(g) 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 interest, note or contract or agreement of any kind to which the director is a party.
(h) The director shall determine the form of the bonds, including coupons to be attached thereto to evidence the right of interest payments, which bonds shall be signed by the director, under the great seal of the state, attested by the secretary of state, and the coupons attached thereto shall bear the facsimile signature of the director. In case any of the officers whose signatures appear on bonds or coupons shall cease to be officers before the delivery of the bonds, the signatures shall nevertheless be valid and sufficient for all purposes the same as if they had remained in office until such delivery.
(i) The director shall fix the denominations of the bonds, the principal and interest of which shall be payable at the office of the treasurer of the state of West Virginia, at the capitol of the state, or, at the option of the holder, at such other place to be named in the bonds in such medium as may be determined by the director.
(j) The director may provide for the registration of the bonds in the name of the owner as to principal alone, and as to both principal and interest under such terms and conditions as the director may determine, and shall sell the bonds in such manner as he or she may determine to be for the best interest of the state, taking into consideration the financial responsibility of the purchaser, and the terms and conditions of the purchase and especially the availability of the proceeds of the bonds when required for payment of the cost of the project.
(k) The proceeds of the bonds shall be used solely for the payment of the cost of the project, and shall be deposited and withdrawn as provided by section thirteen-g of this article, and under such further restrictions, if any, as the director may provide.
(l) If the proceeds of such bonds, by error in calculation or otherwise, shall be less than the cost of the project, additional bonds may in like manner be issued to provide the amount of the deficiency, and unless otherwise provided for in the trust agreement hereinafter mentioned, shall be deemed to be of the same issue, and shall be entitled to payment from the same fund, without preference or priority as the bonds before issued.
(m) If the proceeds of bonds issued for the project shall exceed the cost thereof, the surplus shall be paid into a special fund to be established for payment of the principal and interest of the bonds as specified in the trust agreement provided for in the following section. The fund may be used for the purchase of any of the outstanding bonds payable from such fund at the market price, but not exceeding the price, if any, which bonds shall in the same year be redeemable, and all bonds redeemed or purchased shall forthwith be canceled, and shall not again be issued. Prior to the preparation of definitive bonds, the director may, under like restrictions, issue temporary bonds with or without coupons, exchangeable for definitive bonds upon the issuance of the latter. The revenue bonds may be issued without any other proceedings or the happening of any other conditions or things than those proceedings, conditions and things which are specified and required herein or by the constitution of the state.
§20-5-6. Tax exemption.

The exercise of the powers granted to the director herein 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 recreational opportunities and is a public purpose. As the operation and maintenance of park development projects will constitute the performance of essential government functions, the director shall not be required to pay any taxes or assessments upon any park development projects or upon any property acquired or used by the director or upon the income therefrom, other than taxes collected from the consumer pursuant to article fifteen, chapter eleven of this code. The bonds and notes 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 inheritance taxes.
§20-5-7. Investment in notes, bonds and security interests.

The notes, bonds and security interests of the director are hereby made securities in which the state board of investments, all insurance businesses, all banking institutions, trust companies, building and loan associations, savings and loan associations may invest and upon which notes, security interests or bonds become subject to redemption plus accrued interest to such date. Upon the purchase the notes, security interests or bonds shall be canceled.
§20-5-8. 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 director and the notes, security interests or bonds or other evidence of indebtedness shall not be a debt of the state of West Virginia, and the notes, security interests or bonds or other evidence of indebtedness shall contain on the face thereof a statement to such effect.
§20-5-9. Trustee for holders of park development revenue bonds.

The director may enter into an agreement or agreements with any trust company, or with any bank having the powers of a trust company, either within or outside the state, as trustee for the holders of bonds issued hereunder, setting forth therein the duties of the state and of the director in respect to acquisition, construction, improvement, maintenance, operation, repair and insurance of the project, the conservation and application of all moneys, the insurance of moneys on hand or on deposit, and the rights and remedies of the trustee and the holders of the bonds, as may be agreed upon with the original purchasers of the bonds, and including therein provisions restricting the individual right of action of bondholders as is customary in trust agreements respecting bonds and debentures of corporations, protecting and enforcing the rights and remedies of the trustee and the bondholders, and providing for approval by the original purchaser of the bonds of the appointment of consulting architects, and of the security given by those who contract to construct the project, and by any bank or trust company in which the proceeds of bonds or rentals shall be deposited, and for approval by the consulting architects of all contracts for construction. All expenses incurred in carrying out the agreement may be treated as a part of the cost of maintenance, operation and repair of the project.
§20-5-10. Proceeds of park development revenue bonds, grants and

gifts.
The proceeds of all bonds sold for any park development project and the proceeds of any grant or gift received by the director for any project financed by the issuance of park development revenue bonds shall be paid to the treasurer of the state of West Virginia, who shall not commingle the funds with any other moneys, but shall deposit them in a separate bank account or accounts. The moneys in the accounts shall be paid by the treasurer on requisition of the director, or any other person as the director may authorize to make such requisition. All deposits of the moneys shall, if required by the treasurer or the director, be secured by obligation of the United States, of the state of West Virginia, or of the director, of a market value equal at all times to the amount of the deposit and all banking institutions are authorized to give such deposits.
§20-5-11. Authority of director to pledge revenue from recreational facilities as security.

The director, with the approval of the governor, shall have authority to pledge all revenue derived from any project as security for any bonds issued to defray the cost of the project. In any case in which the director may deem it advisable, he or she shall also have the authority to pledge the revenue derived from any existing recreational facilities under his or her control, or any state park or forest, as additional security for the payment of any bonds issued under the provisions of this article to pay the cost of any park development project.
§20-5-12. Management and control of project.

The division shall properly maintain, repair, operate, manage and control the project, fix the rates of rental and establish bylaws and rules for the use and operation of the project and may make and enter into all contracts or agreements necessary and incidental to the performance of its duties and the execution of its powers hereunder.
§20-5-13. Provisions of constitution and law observed; what

approval required.
It shall not be necessary to secure from any officer or board not named in this article any approval or consent, or any certificate or finding, or to hold an election, or to take any proceedings whatever, either for the construction of any project, or the improvement, maintenance, operation or repair thereof, or for the issuance of bonds hereunder, except as are prescribed by these provisions or are required by the constitution of this state.
Nothing contained herein shall be so construed or interpreted as to authorize or permit the incurring of state debt of any kind or nature as contemplated by the provisions of the constitution of the state in relation to state debt.
§20-5-14. Restaurants and other facilities.

The director may, on all areas under his or her jurisdiction and control, operate commissaries, restaurants and other establishments for the convenience of the public. For these purposes the director may purchase equipment, foodstuffs, supplies and commodities, according to law.
§20-5-15. Contracts for operation of commissaries, restaurants, recreational facilities and other establishments limited to ten years' duration; renewal at option of director; termination of contract by the director; necessity for prior legislative approval before certain lodge, cabin, camping, golf facility, including pro shop operations, ski facility or gift shop facilities are placed under contract.

When it is considered necessary by the director to enter into a contract with a person, firm, corporation, foundation or public agency for the operation of a commissary, restaurant, recreational facility or other establishment within the state parks and public recreation system, the contract shall be for a duration not to exceed ten years, but the contract may provide for an option to renew at the director's discretion for an additional term or terms not to exceed ten years at the time of renewal. Prior to initiating a contract for the operation of a state park lodge, cabin, campground, gift shop, golf facility, including pro shop operations, or ski facility, the director shall submit the specific location which would be subject to the contract to the Legislature for its approval and authorization: Provided, That for contracts for gift shops or golf facilities in specific locations operated under contract on the effective date of this section, and contracts for a duration of not more than one year which provide for options to renew for not more than five succeeding years, notice to the joint committee on government and finance, but not specific legislative authorization and approval, is required prior to execution of the contract.
Any contract entered into by the director shall provide an obligation upon the part of the operator that he or she maintain a level of performance satisfactory to the director, and shall further provide that any contact may be terminated by the director in the event he or she determines that the performance is unsatisfactory and has given the operator reasonable notice of the termination.
§20-5-16. Correlation of projects and services.

The director of the division of natural resources shall correlate and coordinate park and recreation programs, projects and developments with the functions and services of other offices and sections of the division and other agencies of the state government so as to provide, consistent with the provisions of this chapter, suitable and adequate facilities, landscaping, personnel and other services at and about all state parks and public recreation facilities under his or her jurisdiction.
§20-5-17. Discounts for West Virginia residents over the age of sixty-two.

The director shall provide to West Virginia citizens who are sixty-two years of age or older, and who document residency and age by a valid West Virginia driver's license, a fifty percent reduction in campground rental fees for each campsite to be used exclusively by said eligible camper: Provided, That the fifty percent reduction in campground rental fees shall only apply to those rentals occurring during the period of time beginning on the day after Labor Day and ending four days prior to Memorial day.
§20-5-18. Discounts for West Virginia residents who are totally and permanently disabled.

The director shall issue a discount card to West Virginia residents who are totally and permanently disabled, which would provide a fifty percent reduction in campground rental fees for each campsite to be used exclusively by the eligible camper: Provided, That in order to be eligible for the reduction, the person shall document that he or she is a resident of this state and that he or she has a total and permanent disability. The director shall promulgate rules in accordance with article three, chapter twenty-nine of this code setting forth the documentation which is necessary to prove residency and total and permanent disability: Provided, however, That the fifty percent reduction in campground rental fees applies only to those rentals occurring during the period of time beginning on the day after Labor Day and ending four days prior to Memorial Day.