Senate Bill No. 188
(By Senators Minard and Williams)
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[Introduced January 13, 2010; referred to the Committee on
Natural Resources; and then to the Committee on Finance.]
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A BILL to amend and reenact §20-5-16 of the Code of West Virginia,
1931, as amended, relating to allowing the Director of the
Division of Natural Resources to enter into contracts granting
long-term usage and related rights and privileges to third
parties sufficient to attract private investment for the
financing, construction and operation of additional lodging
units at Stonewall Jackson Lake State Park; and directing the
Director of the Division of Natural Resources to file
emergency and legislative rules governing any such long-term
usage contracts and related rights and privileges.
Be it enacted by the Legislature of West Virginia:
That §20-5-16 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. PARKS AND RECREATION.
§20-5-16. Authority to enter into contracts with third parties to construct recreational facilities and cabins; public
comment.
(a) Notwithstanding any other provision of this code to the
contrary, in addition to all other powers and authority vested in
the director, he or she is hereby authorized and empowered to:
(1) Enter into contracts with third parties for the financing,
construction and operation of recreational, lodging and ancillary
facilities at Chief Logan State Park, Beech Fork State Park,
Tomlinson Run State Park, Stonewall Jackson Lake State Park, Lost
River State Park and Canaan Valley Resort State Park. The
contracts may allow and recognize both direct and subsidiary
investment arrangements. The term of the contracts may not exceed
a period of twenty-five years.
at which time the full title to the
recreational facilities shall vest in the state; except as
otherwise provided in this section; With respect to the financing,
construction and operation of lodging at Stonewall Jackson Lake
State Park in addition to the lodging in existence as of July 1,
2010, such contracts may grant, convey or provide for commercially
reasonable lodging usage and related rights and privileges all on
such terms and conditions as the director may deem appropriate,
desirable or necessary to attract private investment for the
construction of such additional lodging units: Provided, That the
director shall propose emergency and legislative rules, in
accordance with the provisions of article three, chapter twenty-nine-a of this code, governing the financing, construction
and operation of such additional lodging units at Stonewall Jackson
Lake State Park, which emergency and legislative rules shall
include at a minimum the following provisions:
(A) No more than one hundred additional lodging units may be
constructed, in addition to the lodging in existence as of July 1,
2010;
(B) Lodging unit contracts in respect of any and all such
additional lodging units that may be financed, constructed or
operated pursuant to the provision of this section shall generally
conform to the provisions of contracts entered into by federal
agencies or the National Park Service with private parties in
respect of privately financed property that is constructed,
developed or operated on public lands administered by federal
agencies or the National Park Service from time to time, subject to
modification and adaptation by the director as the director
considers appropriate, suitable and relevant to any such lodging
units to be constructed at Stonewall Jackson Lake State Park.
© A party granted rights and privileges under lodging unit
contracts awarded under the provisions of this section has the
right to renew his, her or its lodging unit contract for successive
terms not to exceed ninety-nine consecutive years. The party
extended such renewal rights must be in compliance with all
material rights, duties and obligations arising under his, her or its contract and all relevant and applicable provisions of federal,
state and local laws, rules, regulations, contracts or agreements
at the time of any such renewal. Such renewals may be extended for
more than ninety-nine successive years if and in the event the
director makes an affirmative determination that such renewal or
renewals are in the best interest of the state and Stonewall
Jackson Lake State Park, giving due consideration to financial,
operational and other considerations considered relevant and
material by the director;
(D) All rights and privileges arising under any lodging unit
contract shall be transferred to the state or the state's designee
upon the expiration or termination of any such contract, all on
such terms and conditions as each such contract may provide or as
may otherwise be agreed to between the parties;
(E) At the time of transfer of any lodging unit contract from
a private party to the state or the state's designee, whether at
the end of a contract term or otherwise, the private party shall be
paid the fair value of the private party's residual rights and
privileges under such lodging unit contract, such residual rights
and privileges to be valued generally in accordance with the
valuation standards set forth in the National Park Service's
standard contract provisions, or such other relevant federal agency
standards applicable to similar or like contract rights and
provisions as may be in existence at the time of such transfer, all as the same may be considered relevant and appropriate by the
director, and all in the exercise of the director's reasonable
discretion.
(2) Enter into contracts with third parties for the
construction, but not the operation, of cabins at any state park or
forest. Upon completion of the construction of the cabins, full
title to the cabins shall immediately vest in the state and the
cabins shall be operated by the parks and recreation section;
(3) Authorize the construction of at least five cabins by any
single third party in state parks and state forests which do not
offer such facilities on the effective date of this subsection; and
(4) Propose emergency and legislative rules, in accordance
with the provisions of article three, chapter twenty-nine-a of this
code, that set the conditions upon which the director may enter
into a contract with a single third party proposing to construct
cabins.
(b) All contracts shall be presented to the Joint Committee on
Government and Finance for review and comment prior to execution.
© A contract may provide for renewal for the purpose of
permitting continued operation of the facilities at the option of
the director for a term or terms not to exceed ten years.
(d) Except as otherwise authorized by this section, no
extension or renewal beyond the original twenty-five-year term may
be executed by the director absent the approval of the Joint Committee on Government and Finance.
(e)
Stonewall Jackson Lake State Park. --
(1) With respect to the financing, construction and operation
of lodging at Stonewall Jackson Lake State Park, in addition to the
lodging in existence as of July 1, 2008, contracts entered into
pursuant to this section may grant, convey or provide for
commercially reasonable lodging usage and related rights and
privileges all on terms and conditions as the director may deem
appropriate, desirable or necessary to attract private investment
for the construction of additional lodging units.
(2) No contracts may be entered into prior to the preparation
of lodging unit development plans and standard lodging unit
contract documents in a form and at a level of detail acceptable to
the United States Army Corps of Engineers and the director, and
subsequent to the presentation of the lodging unit development
plans and standard lodging unit contract documents to the Joint
Committee on Government and Finance for review and comment.
(3) At a minimum, the lodging unit development plans and
standard lodging unit contracts shall comply with the following
requirements:
(A) That no more than one hundred additional lodging units may
be constructed, in addition to the lodging in existence as of July
1, 2008;
(B) That lodging unit contracts, with respect to any additional lodging units that may be financed, constructed or
operated pursuant to the provision of this section, shall generally
conform to the contracts entered into by federal agencies or the
National Park Service with private parties regarding privately
financed property that is constructed, developed or operated on
public lands administered by federal agencies or the National Park
Service, subject to modification and adaptation by the director as
the director deems appropriate, suitable and relevant to any
lodging units to be constructed at Stonewall Jackson Lake State
Park.
© That a party granted rights and privileges under lodging
unit contracts awarded under the provisions of this subsection
shall have the right to renew his, her or its lodging unit contract
for successive terms not to extend beyond the termination date of
the state's lease with the United States Army Corps of Engineers;
or, in the event that the state's lease with the United States Army
Corps of Engineers is extended beyond the termination date of the
lease as of July 1, 2007, not to exceed five ten-year extensions or
renewals beyond the termination date of the lease between the state
and the United States Army Corps of Engineers in effect as of July
1, 2007:
Provided, That the party extended the renewal rights is
in compliance with all material rights, duties and obligations
arising under his, her or its contract and all relevant and
applicable provisions of federal, state and local laws, rules, regulations, contracts or agreements at the time of renewal:
Provided, however, That if and in the event the director makes an
affirmative determination that further renewals beyond the time
periods set forth in this subsection are in the best interest of
the state and Stonewall Jackson Lake State Park, giving due
consideration to financial, operational and other considerations
deemed relevant and material by the director, that the director may
authorize further renewals;
(D) That all rights and privileges arising under a lodging
unit contract shall be transferred to the state or the state's
designee upon the expiration or termination of the contract, upon
the terms and conditions as each contract may provide or as may
otherwise be agreed upon between the parties;
(E) That the state is not, and cannot be, obligated for any
costs, expenses, fees or other charges associated with the
development of the additional lodging units under this subsection
or the operation and maintenance of the additional lodging units
over time, including, but not limited to, costs associated with
infrastructure improvements associated with development or
operation of the additional lodging units. In his or her
discretion, the director may engage professionals to assist the
state in connection with its review and oversight of development of
the additional lodging units;
(F) That at any time following the initial term and first renewal period of any lodging unit contract entered into with a
private party with respect to an additional lodging unit that is
constructed under this section, the state shall have the right and
option, in its sole discretion, to purchase a lodging unit or
lodging units in accordance with the provisions of this subsection
and any and all contracts that may be entered into from time to
time under this section;
(G) That at its sole option and discretion, the state may
elect to purchase a lodging unit from a private party. In that
event, the private party shall be paid the fair value of the
private party's residual rights and privileges under the lodging
unit contract, the residual rights and privileges to be valued
generally in accordance with the valuation standards set forth in
the National Park Service's standard contract provisions, or other
relevant federal agency standards applicable to similar or like
contract rights and provisions as may be in existence at the time
of transfer, all as the same may be deemed relevant and appropriate
by the director, and all in the exercise of the director's
reasonable discretion. Nothing in this section is intended or
shall be construed to impose an obligation on the state to
purchase, buy, buy out or otherwise acquire or pay for any lodging
unit under this section, or to limit the right and ability of a
private party to donate or contribute his, her or its interest in
and to any lodging unit constructed under this section to the state or any charitable foundation that may be established and operating
from time to time to support the continued operation and
development of Stonewall Jackson Lake State Park;
(H) That the state shall have no obligation whatsoever to
purchase, buy, buy out or otherwise acquire or pay for any lodging
unit that is developed or constructed under this section; and
(I) The director shall have the right to review and approve
the form and content of all contracts that may be entered into
pursuant to this subsection in connection with the development,
operation and maintenance of additional lodging units at Stonewall
Jackson Lake State Park.
NOTE: The purpose of this bill is to attract private
investment for financing, construction and operation of additional
public cottages at Stonewall Jackson Lake State Park. The bill
authorizes and directs the Director of the Division of Natural
Resources to promulgate rules regarding the granting of long-term
lodging unit usage and related rights and privileges to private
parties on commercially reasonable terms that are deemed
appropriate, desirable or necessary by the Director to attract
additional private investment for such purposes.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.