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.
_____________
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.