H. B. 2619
(By Delegates Kiss, Mezzatesta and Rutledge)
[Introduced March 17, 1993; referred to the
Committee on Government Organization then Finance.]
A BILL to amend and reenact section one, article two, chapter
five-f; to amend and reenact section two-a, article seven,
chapter six; and to amend and reenact sections one, three,
four, five, six, eight, ten, eleven, twelve, thirteen,
fourteen, fifteen, sixteen and eighteen, article eighteen,
chapter twenty-nine, all of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating
to changing the name of the West Virginia railroad
maintenance authority to the West Virginia railroad
authority and to increasing the salary of the director of
the railroad authority.
Be it enacted by the Legislature of West Virginia:
That section one, article two, chapter five-f be amended and
reenacted; that section two-a, article seven, chapter six be
amended and reenacted; and that sections one, three, four, five,
six, eight, ten, eleven, twelve, thirteen, fourteen, fifteen,
sixteen and eighteen, article eighteen, chapter twenty-nine, allof the code of West Virginia, one thousand nine hundred thirty-
one, as amended, be amended and reenacted, all to read as
follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards;
funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of administration:
(1) Building commission provided for in article six, chapter
five of this code;
(2) Public employees insurance agency and public employees
insurance agency advisory board provided for in article sixteen,
chapter five of this code;
(3) Council of finance and administration provided for in
article one, chapter five-a of this code;
(4) Employee suggestion award board provided for in article
one-a, chapter five-a of this code;
(5) Governor's mansion advisory committee provided for in
article four-a, chapter five-a of this code;
(6) Commission on uniform state laws provided for in article
one-a, chapter twenty-nine of this code;
(7) Education and state employees grievance board provided
for in article twenty-nine, chapter eighteen and article six-a,
chapter twenty-nine of this code;
(8) Board of risk and insurance management provided for in
article twelve, chapter twenty-nine of this code;
(9) Boundary commission provided for in article twenty-
three, chapter twenty-nine of this code;
(10) Public defender services provided for in article
twenty-one, chapter twenty-nine of this code;
(11) Division of personnel provided for in article six,
chapter twenty-nine of this code;
(12) The West Virginia ethics commission provided for in
article two, chapter six-b of this code; and
(13) Consolidated public retirement board provided for in
article ten-d, chapter five of this code.
(b) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of commerce, labor and environmental resources:
(1) Forest management review commission provided for in
article twenty-four, chapter five of this code;
(2) Division of tourism and parks provided for in article
one, chapter five-b of this code;
(3) Office of community and industrial development or
successor agency provided for in article two, chapter five-b of
this code;
(4) Enterprise zone authority provided for in article two-b,
chapter five-b of this code;
(5) Office of federal procurement assistance provided for in
article two-c, chapter five-b of this code;
(6) Labor-management council provided for in article four,
chapter five-b of this code;
(7) Public energy authority and board provided for in
chapter five-d of this code;
(8) Air pollution control commission provided for in article
twenty, chapter sixteen of this code;
(9) Solid waste management board provided for in article
twenty-six, chapter sixteen of this code;
(10) Division of forestry and forestry commission provided
for in article one-a, chapter nineteen of this code;
(11) Division of natural resources and natural resources
commission provided for in article one, chapter twenty of this
code;
(12) Water resources board provided for in article five,
chapter twenty of this code;
(13) Water development authority and board provided for in
article five-c, chapter twenty of this code;
(14) Division of labor provided for in article one, chapter
twenty-one of this code;
(15) Occupational safety and health review commission
provided for in article three-a, chapter twenty-one of this code;
(16) Board of manufactured housing construction and safety
provided for in article nine, chapter twenty-one of this code;
(17) Division of environmental protection provided for in
article one, chapter twenty-two of this code;
(18) Reclamation board of review provided for in article
four, chapter twenty-two of this code;
(19) Board of appeals provided for in article five, chapter
twenty-two of this code;
(20) Board of coal mine health and safety and coal mine
safety and technical review committee provided for in article
six, chapter twenty-two of this code;
(21) Shallow gas well review board provided for in article
seven, chapter twenty-two of this code;
(22) Oil and gas conservation commission provided for in
article eight, chapter twenty-two of this code;
(23) Board of miner training, education and certification
provided for in article nine, chapter twenty-two of this code;
(24) Mine inspectors' examining board provided for in
article eleven, chapter twenty-two of this code;
(25) Oil and gas inspectors' examining board provided for in
article thirteen, chapter twenty-two of this code;
(26) Geological and economic survey provided for in article
two, chapter twenty-nine of this code;
(27) Blennerhassett historical state park commissionprovided for in article eight, chapter twenty-nine of this code;
(28) Economic development authority provided for in article
fifteen, chapter thirty-one of this code;
(29) Division of banking provided for in article two,
chapter thirty-one-a of this code;
(30) Board of banking and financial institutions provided
for in article three, chapter thirty-one-a of this code;
(31) Lending and credit rate board provided for in chapter
forty-seven-a of this code; and
(32) Bureau of employment programs provided for in article
one, chapter twenty-one-a of this code.
(c) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of education and the arts:
(1) Library commission provided for in article one, chapter
ten of this code;
(2) Educational broadcasting authority provided for in
article five, chapter ten of this code;
(3) University of West Virginia board of trustees provided
for in article two and board of directors of the state college
system provided for in article three, chapter eighteen-b of this
code; and
(4) Division of culture and history provided for in article
one, chapter twenty-nine of this code.
(d) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of health and human resources:
(1) Human rights commission provided for in article eleven,
chapter five of this code;
(2) Division of human services provided for in article two,
chapter nine of this code;
(3) Division of health provided for in article one, chapter
sixteen of this code;
(4) Office of emergency medical services and advisory
council thereto provided for in article four-c, chapter sixteen
of this code;
(5) Hospital finance authority provided for in article
twenty-nine-a, chapter sixteen of this code;
(6) Health care cost review authority provided for in
article twenty-nine-b, chapter sixteen of this code;
(7) Structural barriers compliance board provided for in
article ten-f, chapter eighteen of this code;
(8) Commission on aging provided for in article fourteen,
chapter twenty-nine of this code;
(9) Commission on mental retardation provided for in article
fifteen, chapter twenty-nine of this code; and
(10) Women's commission provided for in article twenty,
chapter twenty-nine of this code.
(e) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of military affairs and public safety:
(1) Adjutant general's department provided for in article
one-a, chapter fifteen of this code;
(2) Armory board provided for in article six, chapter
fifteen of this code;
(3) Military awards board provided for in article one-g,
chapter fifteen of this code;
(4) Division of public safety provided for in article two,
chapter fifteen of this code;
(5) Office of emergency services and disaster recovery board
provided for in article five and emergency response commission
provided for in article five-a, chapter fifteen of this code;
(6) Sheriffs' bureau provided for in article eight, chapter
fifteen of this code;
(7) Division of corrections provided for in chapter twenty-
five of this code;
(8) Fire commission provided for in article three, chapter
twenty-nine of this code;
(9) Regional jail and correctional facility authority
provided for in article twenty, chapter thirty-one of this code;
(10) Board of probation and parole provided for in article
twelve, chapter sixty-two of this code; and
(11) Division of veterans' affairs and veterans' council
provided for in article one, chapter nine-a of this code.
(f) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of tax and revenue:
(1) Tax division provided for in article one, chapter eleven
of this code;
(2) Appraisal control and review commission provided for in
article one-a, chapter eleven of this code;
(3) Municipal bond commission provided for in article three,
chapter thirteen of this code;
(4) Racing commission provided for in article twenty-three,
chapter nineteen of this code;
(5) Lottery commission and position of lottery director
provided for in article twenty-two, chapter twenty-nine of this
code;
(6) Agency of insurance commissioner provided for in article
two, chapter thirty-three of this code;
(7) Office of alcohol beverage control commissioner provided
for in article sixteen, chapter eleven and article two, chapter
sixty of this code; and
(8) Division of professional and occupational licenses which
may be hereafter created by the Legislature.
(g) The following agencies and boards, including all of theallied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of transportation:
(1) Road commission provided for in article two, chapter
seventeen of this code;
(2) Division of highways provided for in article two-a,
chapter seventeen of this code;
(3) Parkways, economic development and tourism authority
provided for in article sixteen-a, chapter seventeen of this
code;
(4) Division of motor vehicles provided for in article two,
chapter seventeen-a of this code;
(5) Driver's licensing advisory board provided for in
article two, chapter seventeen-b of this code;
(6) Aeronautics commission provided for in article two-a,
chapter twenty-nine of this code;
(7) Railroad
maintenance authority provided for in article
eighteen, chapter twenty-nine of this code; and
(8) Port authority provided for in article sixteen-b,
chapter seventeen of this code.
(h) Except for such powers, authority and duties as have
been delegated to the secretaries of the departments by the
provisions of section two of this article, the existence of the
position of administrator and of the agency and the powers,
authority and duties of each administrator and agency shall notbe affected by the enactment of this chapter.
(i) Except for such powers, authority and duties as have
been delegated to the secretaries of the departments by the
provisions of section two of this article, the existence, powers,
authority and duties of boards and the membership, terms and
qualifications of members of such boards shall not be affected by
the enactment of this chapter, and all boards which are appellate
bodies or were otherwise established to be independent
decisionmakers shall not have their appellate or independent
decision-making status affected by the enactment of this chapter.
(j) Any department previously transferred to and
incorporated in a department created in section two, article one
of this chapter by prior enactment of this section in chapter
three, acts of the Legislature, first extraordinary session, one
thousand nine hundred eighty-nine, and subsequent amendments
thereto, shall henceforth be read, construed and understood to
mean a division of the appropriate department so created.
Wherever elsewhere in this code, in any act, in general or other
law, in any rule or regulation, or in any ordinance, resolution
or order, reference is made to any department transferred to and
incorporated in a department created in section two, article one
of this chapter, such reference shall henceforth be read,
construed and understood to mean a division of the appropriate
department so created, and any such reference elsewhere to a
division of a department so transferred and incorporated shall
henceforth be read, construed and understood to mean a section ofthe appropriate division of the department so created.
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.
ARTICLE 7. COMPENSATION AND ALLOWANCES.
§6-7-2a. Terms of certain appointive state officers;
appointment; qualifications; powers and salaries of
such officers.
(a) Notwithstanding any other provision of this code to the
contrary, each of the following appointive state officers named
in this subsection shall be appointed by the governor, by and
with the advice and consent of the Senate. Each of such
appointive state officers shall serve at the will and pleasure of
the governor for the term for which the governor was elected and
until the respective state officers' successors have been
appointed and qualified. Each of such appointive state officers
shall hereafter be subject to the existing qualifications for
holding each such respective office and each shall have and is
hereby granted all of the powers and authority and shall perform
all of the functions and services heretofore vested in and
performed by virtue of existing law respecting each such office.
Beginning on the first day of January, one thousand nine
hundred ninety, the annual salary of each such named appointive
state officer shall be as follows:
Administrator, division of highways, sixty thousand dollars;
administrator, division of health, fifty-seven thousand two
hundred dollars; administrator, division of human services,
forty-seven thousand eight hundred dollars; administrator, statetax division, forty-nine thousand nine hundred dollars;
administrator, division of energy, sixty-five thousand dollars;
administrator, division of finance and administration, forty-
seven thousand eight hundred dollars; administrator, division of
corrections, forty-five thousand dollars; administrator, division
of community and industrial development, sixty-three thousand six
hundred dollars; administrator, division of workers'
compensation, forty-five thousand dollars; administrator,
division of commerce, sixty-two thousand five hundred dollars;
administrator, division of natural resources, forty-seven
thousand eight hundred dollars; administrator, division of public
safety, forty-four thousand six hundred dollars; administrator,
lottery division, sixty thousand dollars; director, public
employees insurance agency, fifty-five thousand dollars;
administrator, division of employment security, forty-five
thousand dollars; administrator, division of banking,
thirty-eight thousand three hundred dollars; administrator,
division of insurance, thirty-six thousand seven hundred dollars;
administrator, division of culture and history, thirty-eight
thousand three hundred dollars; chairman, public service
commission, fifty thousand dollars; members, public service
commission, forty-six thousand two hundred dollars;
administrator, alcohol beverage control commission, thirty-eight
thousand three hundred dollars; administrator, division of motor
vehicles, forty thousand dollars; director, division of
personnel, thirty-eight thousand three hundred dollars; adjutantgeneral, thirty-five thousand seven hundred dollars; chairman,
health care cost review authority, forty thousand dollars;
members, health care cost review authority, thirty-six thousand
five hundred dollars; director, human rights commission, forty
thousand dollars; administrator, division of labor, thirty-five
thousand seven hundred dollars; administrator, division of
veterans affairs, thirty-two thousand dollars; administrator,
division of emergency services, thirty-two thousand dollars;
administrator, nonintoxicating beer commission, thirty-two
thousand dollars; members, board of probation and parole, twenty-
eight thousand three hundred dollars; members, employment
security review board, seventeen thousand dollars; members,
workers' compensation appeal board, seventeen thousand eight
hundred dollars.
Prior to the first day of January, one thousand nine hundred
ninety, each of the aforesaid officers shall continue to receive
the annual salaries they were receiving as of the last day of
March, one thousand nine hundred eighty-nine.
(b) Notwithstanding any other provisions of this code to the
contrary, each of the state officers named in this subsection
shall continue to be appointed in the manner prescribed in this
code, and shall be paid an annual salary as follows:
except that
any increase in salary over and above the salary being received
by any of the following state officers as of the last day of
March, one thousand nine hundred eighty-nine, shall not become
effective until the first day of January, one thousand ninehundred ninety:
Chancellor, board of regents, seventy thousand dollars;
state superintendent of schools, seventy thousand dollars;
administrator, division of risk and insurance management, forty-
two thousand dollars; director, division of rehabilitation
services, fifty-five thousand dollars; executive director,
educational broadcasting authority, forty-seven thousand five
hundred dollars; secretary, library commission, forty-seven
thousand five hundred dollars; director, geologic and economic
survey, forty-seven thousand five hundred dollars; executive
director, water development authority, fifty-four thousand two
hundred dollars; executive secretary, teacher's retirement
system, forty-seven thousand two hundred dollars; executive
secretary, public employees retirement system, forty thousand one
hundred dollars; director, air pollution control commission,
forty-four thousand eight hundred dollars; executive director,
public legal services council, forty seven thousand five hundred
dollars; director, commission on aging, forty thousand dollars;
commissioner, oil and gas conservation commission, forty thousand
dollars; director, farm management commission, thirty-two
thousand five hundred dollars; state fire administrator, twenty-
five thousand two hundred dollars; executive secretary, municipal
bond commission, thirty thousand two hundred dollars; director,
railroad
maintenance authority,
thirty-two forty-five thousand
five hundred dollars; executive secretary, women's commission,
thirty thousand one hundred dollars; executive director, regionaljail authority, forty-two thousand six hundred dollars; director,
hospital finance authority, twenty-five thousand eight hundred
dollars.
(c) No increase in the salary of any appointive state
officer pursuant to this section shall be paid until and unless
such appointive state officer shall have first filed with the
state auditor and the legislative auditor a sworn statement, on
a form to be prescribed by the attorney general, certifying that
such spending unit is in compliance with any general law
providing for a salary increase for his employees. The attorney
general shall prepare and distribute such form to the affected
spending units:
Provided,
That no decrease in salary shall be
effective for any current appointive state officer appointed
prior to the first day of January, one thousand nine hundred
eighty-nine:
Provided, however,
That such decreases shall take
effect at such time as any appointive office is vacated.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 18. WEST VIRGINIA RAILROAD AUTHORITY.
§29-18-1. Short title.
This article shall be known and cited as the "West Virginia
Railroad
Maintenance Authority Act."
§29-18-3. Definitions.
As used in this article unless the context clearly requires
a different meaning:
(1) "Authority" means the West Virginia railroad
maintenance
authority created by this article, the duties, powers,responsibilities and functions of which are specified in this
article.
(2) "Bond" or "railroad
maintenance authority bond" means a
revenue bond or rate issued by the railroad
maintenance authority
to effectuate the intents and purposes of this article.
(3) "Railroad" means a common carrier by railroad as defined
in section 1(3) of Part I of the Interstate Commerce Act (49
U.S.C. (1) 3).
(4) "Owner" means and includes all individuals,
copartnerships, associations, corporations, companies,
transportation companies, public service corporations, the United
States or any agency or instrumentality thereof, common carriers
by rail and railroad companies having any title or interest in
any rail properties authorized to be acquired, leased or used by
this article.
(5) "Income" means and includes all money accruing to the
authority from any source.
(6) "Person" means individuals, corporations, partnerships
or foreign and domestic associations, including railroads.
(7) "Rail properties" means assets or rights owned, leased,
or otherwise controlled by a railroad or other person which are
used, or useful, in rail transportation service:
Provided,
That
rail properties does not include any properties owned, leased, or
otherwise controlled by a railroad not in reorganization, unless
it consents to such properties' inclusion in the particular
transaction.
(8) "Rail service" means both freight and passenger service.
(9) "Railroad project" means the initiation, acquisition,
construction, maintenance, repair, equipping or operation of rail
properties or rail service, or the provisions of loans or grants
to or with government agencies, or to persons for such purposes,
by the authority.
§29-18-4. West Virginia railroad authority created;
organization of authority; appointment of members;
term of office, compensation and expenses; director
of authority.
There is hereby created the West Virginia railroad
maintenance authority. The authority is a governmental
instrumentality of the state and a body corporate. The exercise
by the authority of the powers conferred by this article and the
carrying out of its purposes and duties shall be deemed and held
to be, and are hereby determined to be, essential governmental
functions and for a public purpose.
The authority shall consist of seven members. The secretary
of the department of transportation shall be a member ex officio.
The other six members shall be appointed by the governor, by and
with the advice and consent of the Senate, for a term of six
years. Of the members of the authority first appointed, two
shall be appointed for a term ending on the thirtieth day of
June, one thousand nine hundred seventy-seven, two shall be
appointed for a term ending two years thereafter and two shall be
appointed for a term ending four years thereafter. A personappointed to fill a vacancy occurring prior to the expiration of
the term for which his predecessor was appointed shall be
appointed only for the remainder of such term. Each authority
member shall serve until the appointment and qualification of his
successor. No more than three of the appointed authority members
shall at any one time belong to the same political party.
Appointed authority members may be reappointed to serve
additional terms.
All members of the authority shall be citizens of the state.
Each appointed member of the board, before entering upon his
duties, shall comply with the requirements of article one,
chapter six of this code and give bond in the sum of twenty-five
thousand dollars in the manner provided in article two, chapter
six of this code. The governor may remove any authority member
for cause as provided in article six, chapter six of this code.
Annually the authority shall elect one of its members as
chairman and another as vice chairman, and shall appoint a
secretary-treasurer, who need not be a member of the authority.
Four members of the authority shall constitute a quorum and the
affirmative vote of four members shall be necessary for any
action taken by vote of the authority. No vacancy in the
membership of the authority shall impair the rights of a quorum
by such vote to exercise all the rights and perform all the
duties of the authority. The person appointed as secretary-
treasurer, including an authority member if he is so appointed,
shall give bond in the sum of fifty thousand dollars in themanner provided in article two, chapter six of this code.
The secretary of the department of transportation shall not
receive any compensation for serving as an authority member.
Each of the six appointed members of the authority shall receive
fifty dollars for each day or substantial part thereof actually
spent in attending meetings of the board or in discharging or
carrying out his duties and work as a member of the board. Each
of the six appointed members shall be reimbursed for all
reasonable and necessary expenses actually incurred in the
performance of his duties as a member of such authority. All
such compensation and expenses incurred shall be payable solely
from funds of the authority or from funds appropriated for such
purpose by the Legislature and no liability or obligation shall
be incurred by the authority beyond the extent to which moneys
are available from funds of the authority or from such
appropriations.
There shall also be a director of the authority appointed by
the authority.
§29-18-5. Authority may construct, maintain, etc., railroad
projects.
To accomplish the public policies and purposes and to meet
the responsibility of the state as set forth in this article, the
West Virginia railroad maintenance authority may carry out
railroad projects or cause railroad projects to be carried out
pursuant to a lease, sublease or agreement with any person or
governmental agency; may make loans and grants to or withgovernmental agencies or to persons for railroad projects; and
may issue railroad authority bonds of this state; payable solely
from revenues, to pay the cost of such projects. A railroad
project shall not be undertaken unless it has been determined by
the authority to be consistent with any applicable comprehensive
plan for railroad projects approved by the authority. Any
resolution of the authority authorizing a railroad project shall
include a finding by the authority that such determinations have
been made.
§29-18-6. Powers, duties and responsibilities of authority
generally.
The West Virginia railroad maintenance authority is hereby
granted, has and may exercise all powers necessary or appropriate
to carry out and effectuate its corporate purpose.
(a) The authority shall have the power and capacity to:
(1) Adopt, and from time to time, amend and repeal bylaws
necessary and proper for the regulation of its affairs and the
conduct of its business and rules and regulations to implement
and make effective its powers and duties, such rules and
regulations to be promulgated in accordance with the provisions
of chapter twenty-nine-a of this code.
(2) Adopt an official seal.
(3) Maintain a principal office and, if necessary, regional
suboffices at locations properly designated or provided.
(4) Sue and be sued in its own name and plead and be
impleaded in its own name, and particularly to enforce theobligations and covenants made under sections ten, eleven and
sixteen of this article. Any actions against the authority shall
be brought in the circuit court of Kanawha County. The location
of the principal office of the authority shall be determined by
the governor.
(5) Make loans and grants to governmental agencies and
persons for carrying out railroad projects by any such
governmental agency or person and, in accordance with chapter
twenty-nine-a of this code, adopt rules and procedures for making
such loans and grants.
(6) Acquire, construct, reconstruct, enlarge, improve,
furnish, equip, maintain, repair, operate, lease or rent to, or
contract for operation by a governmental agency or person,
railroad projects, and, in accordance with chapter twenty-nine-a
of this code, adopt rules and regulations for the use of such
projects.
(7) Make available the use or services of any railroad
project to one or more persons, one or more governmental
agencies, or any combination thereof.
(8) Issue railroad maintenance authority bonds and notes and
refunding bonds of the state, payable solely from revenues as
provided in section ten of this article unless the bonds are
refunded by refunding bonds, for the purpose of paying any part
of the cost of one or more railroad projects or parts thereof.
(9) Acquire, by gift or purchase, hold and dispose of real
and personal property in the exercise of its powers and theperformance of its duties as set forth in this article.
(10) Acquire in the name of the state, by purchase or
otherwise, on such terms and in such manner as it deems proper,
or by the exercise of the right of eminent domain in the manner
provided in chapter fifty-four of this code, rail properties and
appurtenant rights and interests necessary for carrying out
railroad projects.
(11) Make and enter into all contracts and agreements and
execute all instruments necessary or incidental to the
performance of its duties and the execution of its powers. When
the cost under any such contract or agreement, other than
compensation for personal services, involves an expenditure of
more than two thousand dollars, the authority shall make a
written contract with the lowest responsible bidder after public
notice published as a Class II legal advertisement in compliance
with the provisions of article three, chapter fifty-nine of this
code, the publication area for such publication to be the county
wherein the work is to be performed or which is affected by the
contract, which notice shall state the general character of the
work and the general character of the materials to be furnished,
the place where plans and specifications therefor may be examined
and the time and place of receiving bids, but a contract or lease
for the operation of a railroad project constructed and owned by
the authority or an agreement for cooperation in the acquisition
or construction of a railroad project pursuant to section sixteen
of this article is not subject to the foregoing requirements andthe authority may enter into such contract or lease or such
agreement pursuant to negotiation and upon such terms and
conditions and for such period as it finds to be reasonable and
proper under the circumstances and in the best interests of
proper operation or of efficient acquisition or construction of
such railroad project. The authority may reject any and all
bids. A bond with good and sufficient surety, approved by the
authority, shall be required of all contractors in an amount
equal to at least fifty percent of the contract price,
conditioned upon the faithful performance of the contract.
(12) Appoint a director and employ managers, superintendents
and other employees and retain or contract with consulting
engineers, financial consultants, accountants, attorneys and such
other consultants and independent contractors as are necessary in
its judgment to carry out the provisions of this article, and fix
the compensation or fees thereof. All expenses thereof shall be
payable from the proceeds of railroad maintenance authority
revenue bonds or notes issued by the authority, from revenues and
funds appropriated for such purpose by the Legislature or from
grants from the federal government which may be used for such
purpose.
(13) Receive and accept from any state or federal agency,
grants for or in aid of the construction of any railroad project
or for research and development with respect to railroads and
receive and accept aid or contributions from any source of money,
property, labor or other things of value, to be held, used andapplied only for the purposes for which such grants and
contributions are made.
(14) Engage in research and development with respect to
railroads.
(15) Purchase fire and extended coverage and liability
insurance for any railroad project and for the principal office
and suboffices of the authority, insurance protecting the
authority and its officers and employees against liability, if
any, for damage to property or injury to or death of persons
arising from its operations and be a member of, and to
participate in, the state workers' compensation program.
(16) Charge, alter and collect rates, rentals and other
charges for the use or services of any railroad project as
provided in this article.
(17) Do all acts necessary and proper to carry out the
powers expressly granted to the authority in this article.
(b) In addition, the authority shall have the power to:
(1) Acquire rail properties both within and not within the
jurisdiction of the interstate commerce commission and rail
properties within the purview of the federal Regional Rail
Reorganization Act of 1973, any amendments to it and any other
relevant federal legislation.
(2) Enter into agreements with owners of rail properties for
the acquisition of rail properties or use, or both of rail
properties upon such terms, conditions, rates or rentals as can
best effectuate the purposes of this article.
(3) Acquire rail properties and other property of a railroad
in concert with another state or states as is necessary to ensure
continued rail service in this state.
(4) Establish a state plan for rail transportation and local
rail services.
(5) Administer and coordinate such state plan.
(6) Provide in such state plan for the equitable
distribution of federal rail service continuation subsidies among
state, local and regional transportation authorities.
(7) Promote, supervise and support safe, adequate and
efficient rail services.
(8) Employ sufficiently trained and qualified personnel for
these purposes.
(9) Maintain adequate programs of investigation, research,
promotion and development in connection with such purposes and to
provide for public participation therein.
(10) Provide satisfactory assurances on behalf of the state
that fiscal control and fund accounting procedures will be
adopted by the state necessary to assure proper disbursement of
and accounting for federal funds paid to the state as rail
service continuation subsidies.
(11) Comply with the regulations of the secretary of
transportation of the United States department of transportation
affecting federal rail service continuation programs.
(12) Do all things otherwise necessary to maximize federal
assistance to the state under Title IV of the federal RegionalRail Reorganization Act of 1973 and to qualify for rail service
continuation subsidies pursuant to the federal Regional Rail
Reorganization Act of 1973.
§29-18-8. Creation of railroad authority fund.
There is hereby created in the state treasury a West
Virginia railroad maintenance authority fund. The authority
shall deposit proceeds derived from action taken pursuant to this
article and shall be the authority to use moneys in such fund to
effectuate the provisions and purposes of this article.
§29-18-10. Authority empowered to issue bonds, renewal notes
and refunding bonds; requirements and manner of
such issuance.
The authority is hereby empowered to raise the cost of one
or more railroad projects or parts thereof by the issuance from
time to time of railroad maintenance revenue bonds and notes of
the state in such principal amount as the authority deems
necessary, but the aggregate amount of all issues of bonds and
notes outstanding at one time for all projects authorized
hereunder shall not exceed that amount capable of being serviced
by revenues received from such projects.
The authority may, from time to time, issue renewal notes,
issue bonds to pay such notes and whenever it deems refunding
expedient, refund any bonds by the issuance of railroad
maintenance revenue refunding bonds of the state, whether the
bonds to be refunded have or have not matured, and issue bonds
partly to refund bonds then outstanding and partly for any otherauthorized purpose. The refunding bonds shall be sold and the
proceeds applied to the purchase, redemption or payment of the
bonds to be refunded. Except as may otherwise be expressly
provided by the authority, every issue of its bonds or notes
shall be obligations of the authority payable out of the revenues
of the authority, which are pledged for such payment, without
preference or priority of the first bonds issued, subject only to
any agreements with the holders of particular bonds or notes
pledging any particular revenues. Such pledge shall be valid and
binding from the time the pledge is made and the revenue so
pledged and thereafter received by the authority shall
immediately be subject to the lien of such pledge without any
physical delivery thereof or further act and the lien of any such
pledge shall be valid and binding as against all parties having
claims of any kind in tort, contract or otherwise against the
authority irrespective of whether such parties have notice
thereof.
All such bonds and notes shall have and are hereby declared
to have all the qualities of negotiable instruments.
The bonds and notes shall be authorized by resolution of the
authority, shall bear such date and shall mature at such time, in
the case of any such note or any renewals thereof not exceeding
five years from the date of issue of such original note, and in
the case of any such bond not exceeding fifty years from the date
of issue, as such resolution may provide. The bonds and notes
shall bear interest at such rate, be in such denominations, be insuch form, either coupon or registered, carry such registration
privileges, be payable in such medium of payment, at such place
and be subject to such terms of redemption as the authority may
authorize. The bonds and notes of the authority may be sold by
the authority, at public or private sale, at or not less than the
price the authority determines. The bonds and notes shall be
executed by the chairman and vice chairman of the authority, both
of whom may use facsimile signatures. The official seal of the
authority or a facsimile thereof shall be affixed thereto or
printed thereon and attested, manually or by facsimile signature,
by the secretary-treasurer of the authority, and any coupons
attached thereto shall bear the signature or facsimile signature
of the chairman of the authority. In case any officer whose
signature, or a facsimile of whose signature, appears on any
bonds, notes or coupons ceases to be such officer before delivery
of such bonds or notes, such signature or facsimile is
nevertheless sufficient for all purposes the same as if he had
remained in office until such delivery and in case the seal of
the authority has been changed after a facsimile has been
imprinted on such bonds or notes such facsimile seal will
continue to be sufficient for all purposes.
Any resolution authorizing any bonds or notes or any issue
thereof may contain provisions, subject to such agreements with
bondholders or noteholders as may then exist, which provisions
shall be a part of the contract with the holders thereof, as to
pledging all or any part of the revenues of the authority tosecure the payment of the bonds or notes or of any issue thereof;
the use and disposition of revenues of the authority; a covenant
to fix, alter and collect rates, rentals and other charges so
that pledged revenues will be sufficient to pay the costs of
operation, maintenance and repairs, pay principal of and interest
on bonds or notes secured by the pledge of such revenues and
provide such reserves as may be required by the applicable
resolution or trust agreement; the setting aside of reserve
funds, sinking funds or replacement and improvement funds and the
regulation and disposition thereof; the crediting of the proceeds
of the sale of bonds or notes to and among the funds referred to
or provided for in the resolution authorizing the issuance of the
bonds or notes; the use, lease, sale or other disposition of any
railroad project or any other assets of the authority;
limitations on the purpose to which the proceeds of sale of bonds
or notes may be applied and pledging such proceeds to secure the
payment of the bonds or notes or of any issue thereof; notes
issued in anticipation of the issuance of bonds, the agreement of
the authority to do all things necessary for the authorization,
issuance and sale of such bonds in such amounts as may be
necessary for the timely retirement of such notes; limitations on
the issuance of additional bonds or notes; the terms upon which
additional bonds or notes may be issued and secured; the
refunding of outstanding bonds or notes; the procedure, if any,
by which the terms of any contract with bondholders or
noteholders may be amended or abrogated, the amount of bonds ornotes the holders of which must consent thereto and the manner in
which such consent may be given; limitations on the amount of
moneys to be expended by the authority for operating,
administrative or other expenses of the authority; securing any
bonds or notes by a trust agreement; and any other matters, of
like or different character, which in any way affect the security
or protection of the bonds or notes.
Neither the members of the authority nor any person
executing the bonds or notes shall be liable personally on the
bonds or notes or be subject to any personal liability or
accountability by reason of the issuance thereof.
§29-18-11. Trustee for bondholders; contents of trust agreement.
In the discretion of the authority, any railroad maintenance
bonds or notes or railroad maintenance refunding bonds issued by
the authority under this article may be secured by a trust
agreement between the authority and a corporate trustee, which
trustee may be any trust company or banking institution having
the powers of a trust company within or without this state.
Any such trust agreement may pledge or assign revenues of
the authority to be received, but shall not convey or mortgage
any railroad project or any part thereof. Any such trust
agreement or any resolution providing for the issuance of such
bonds or notes may contain such provisions for protecting and
enforcing the rights and remedies of the bondholders or
noteholders as are reasonable and proper and not in violation of
law, including covenants setting forth the duties of theauthority in relation to the acquisition of property, the
construction, improvement, maintenance, repair, operation and
insurance of the railroad project in connection with which such
bonds or notes are authorized, the rentals or other charges to be
imposed for the use or services of any railroad project, the
custody, safeguarding, and application of all moneys and
provisions for the employment of consulting engineers in
connection with the construction or operation of such railroad
project. Any banking institution or trust company incorporated
under the laws of this state which may act as depository of the
proceeds of bonds or notes or of revenues shall furnish such
indemnifying bonds or pledge such securities as are required by
the authority. Any such trust agreement may set forth the rights
and remedies of the bondholders and noteholders and of the
trustee and may restrict individual rights of action by
bondholders and noteholders as customarily provided in trust
agreements or trust indentures securing similar bonds. Such
trust agreement may contain such other provisions as the
authority deems reasonable and proper for the security of the
bondholders or noteholders. All expenses incurred in carrying
out the provisions of any such trust agreement may be treated as
a part of the cost of the operation of the railroad project. Any
such trust agreement or resolution authorizing the issuance of
railroad maintenance revenue bonds may provide the method whereby
the general administrative overhead expenses of the authority
shall be allocated among the several projects acquired orconstructed by it as a factor of the operating expenses of each
such project.
§29-18-12. Legal remedies of bondholders and trustees.
Any holder of railroad maintenance revenue bonds issued
under the authority of this article or any of the coupons
appertaining thereto and the trustee under any trust agreement,
except to the extent the rights given by this article may be
restricted by the applicable resolution or such trust agreement,
may by civil action, mandamus or other proceedings, protect and
enforce any rights granted under the laws of this state or
granted under this article, by the trust agreement or by the
resolution authorizing the issuance of such bonds, and may
enforce and compel the performance of all duties required by this
article, or by the trust agreement or resolution, to be performed
by the authority or any officer thereof, including the fixing,
charging and collecting of sufficient rentals or other charges.
§29-18-13. Bonds and notes not debt of state, county,
municipality or of any political subdivision;
expenses incurred pursuant to article.
Railroad maintenance revenue bonds and notes and railroad
maintenance revenue refunding bonds issued under authority of
this article and any coupons in connection therewith shall not
constitute a debt or a pledge of the faith and credit or taxing
power of this state or of any county, municipality or any other
political subdivision of this state, and the holders or owners
thereof shall have no right to have taxes levied by theLegislature or taxing authority of any county, municipality or
any other political subdivision of this state for the payment of
the principal thereof or interest thereon, but such bonds and
notes shall be payable solely from the revenues and funds pledged
for their payment as authorized by this article unless the notes
are issued in anticipation of the issuance of bonds or the bonds
are refunded by refunding bonds issued under authority of this
article, which bonds or refunding bonds shall be payable solely
from revenues and funds pledged for their payment as authorized
by this article. All such bonds and notes shall contain on the
face thereof a statement to the effect that the bonds or notes,
as to both principal and interest, are not debts of the state or
any county, municipality or political subdivision thereof, but
are payable solely from revenues and funds pledged for their
payment.
All expenses incurred in carrying out the provisions of this
article shall be payable solely from funds provided under
authority of this article. Such article does not authorize the
authority to incur indebtedness or liability on behalf of or
payable by the state or any county, municipality or political
subdivision thereof.
§29-18-14. Use of funds by authority; restrictions thereon.
All moneys, properties and assets acquired by the authority,
whether as proceeds from the sale of railroad maintenance revenue
bonds or as revenues or otherwise, shall be held by it in trust
for the purposes of carrying out its powers and duties, and shallbe used and reused in accordance with the purposes and provisions
of this article. Such moneys shall at no time be commingled with
other public funds. Such moneys, except as otherwise provided in
any resolution authorizing the issuance of railroad maintenance
revenue bonds or in any trust agreement securing the same, or
except when invested pursuant to section thirteen of this
article, shall be kept in appropriate depositories and secured as
provided and required by law. The resolution authorizing the
issuance of such bonds of any issue or the trust agreement
securing such bonds shall provide that any officer to whom, or
any banking institution or trust company to which, such moneys
are paid shall act as trustee of such moneys and hold and apply
them for the purposes hereof, subject to the conditions this
article and such resolution or trust agreement provide.
§29-18-15. Investment of funds by authority.
Funds of the authority in excess of current needs, except as
otherwise provided in any resolution authorizing the issuance of
its railroad maintenance revenue bonds or in any trust agreement
securing the same, may be invested by the authority in any
security or securities in which the "West Virginia State Board of
Investments" is authorized to invest under sections nine and ten,
article six, chapter twelve of this code, except those securities
specified in subdivisions (f) and (g) of said section nine.
Income from all such investments of moneys in any fund shall be
credited to such funds as the authority determines, subject to
the provisions of any such resolution or trust agreement and suchinvestments may be sold at such times as the authority
determines.
§29-18-16. Rentals and other revenues from railroad projects;
contracts and leases of authority; cooperation of
other governmental agencies; bonds of such agencies.
The authority may charge, alter and collect rates, rentals
or other charges for the use or services of any project, and
contract in the manner provided by this section with one or more
persons, one or more governmental agencies, or any combination
thereof, desiring the use or services thereof, and fix the terms,
conditions, rates, rentals or other charges for such use or
services. Such rentals or other charges shall not be subject to
supervision, or regulation by any other authority, department,
commission, board, bureau or agency of the state, and such
contract may provide for acquisition by such person or
governmental agency of all or any part of such railroad project
for such consideration payable over the period of the contract or
otherwise as the authority in its sole discretion determines to
be appropriate, but subject to the provisions of any resolution
authorizing the issuance of railroad maintenance revenue bonds or
notes or railroad maintenance revenue refunding bonds of the
authority or any trust agreement securing the same. Any
governmental agency which has power to construct, operate and
maintain railroad projects may enter into a contract or lease
with the authority whereby the use or services of any railroad
project of the authority will be made available to suchgovernmental agency and pay for such use or services such rentals
or other charges as may be agreed to by such governmental agency
and the authority.
Any governmental agency or agencies or combination thereof
may cooperate with the authority in the acquisition or
construction of a railroad project and shall enter into such
agreements with the authority as are necessary, with a view to
effective cooperative action and safeguarding of the respective
interests of the parties thereto, which agreements shall provide
for such contributions by the parties thereto in such proportion
as may be agreed upon and such other terms as may be mutually
satisfactory to the parties, including without limitation the
authorization of the construction of the project by one of the
parties acting as agent for all of the parties and the ownership
and control of the project by the authority to the extent
necessary or appropriate for purposes of the issuance of railroad
maintenance revenue bonds by the authority. Any governmental
agency may provide such contribution as is required under such
agreements by the appropriation of money or, if authorized by a
favorable vote of the electors to issue bonds or notes or levy
taxes or assessments and issue notes or bonds in anticipation of
the collection thereof, by the issuance of bonds or notes or by
the levying of taxes or assessments and the issuance of bonds or
notes in anticipation of the collection thereof, and by the
payment of such appropriated money or the proceeds of such bonds
or notes to the authority pursuant to such agreements.
Any governmental agency, pursuant to a favorable vote of the
electors in an election held before or after the effective date
of this section for the purpose of issuing bonds to provide funds
to acquire, construct or equip, or provide real estate and
interests in real estate for a railroad project, whether or not
the governmental agency at the time of such election had the
authority to pay the proceeds from such bonds or notes issued in
anticipation thereof to the authority as provided in this
section, may issue such bonds or notes in anticipation of the
issuance thereof and pay the proceeds thereof to the authority in
accordance with an agreement between such governmental agency and
the authority:
Provided,
That the legislative authority of the
governmental agency finds and determines that the railroad
project to be acquired or constructed by the authority in
cooperation with such governmental agency will serve the same
public purpose and meet substantially the same public need as the
facility otherwise proposed to be acquired or constructed by the
governmental agency with the proceeds of such bonds or notes.
§29-18-18. Railroad bonds lawful investments.
The provisions of sections nine and ten, article six,
chapter twelve of this code to the contrary notwithstanding, all
railroad maintenance revenue bonds issued pursuant to this
article shall be lawful investments for the West Virginia state
board of investments and shall also be lawful investments for
banking institutions, societies for savings, building and loan
associations, savings and loan associations, deposit guaranteeassociations, trust companies, insurance companies, including
domestic for life and domestic not for life insurance companies.
NOTE: The purpose of this bill is to change the name of the
West Virginia Railroad Maintenance Authority to the West Virginia
Railroad Authority and to increase the salary of the director of
the West Virginia Railroad Authority.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.