ENGROSSED
H. B. 2820
(By Delegates Kiss, Rutledge and Browning
)
(Originating in the House Committee on Finance)
[March 31, 1993]
A BILL to amend and reenact section fifteen, article one, chapter
five-b of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, authorizing the transfer of
wildlife management areas to the division of natural
resources; authorizing reimbursement arrangements with the
parkway authority; and authorizing the sale or transfer of
specified state parks to the national park service.
Be it enacted by the Legislature of West Virginia:
That section fifteen, article one, section five-b of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 1. DIVISION OF TOURISM AND PARKS.
§5B-1-15. Contracts for operation of commissaries, restaurants,
recreational facilities and other establishments
limited to ten years' duration; renewal at option of
commissioner; termination of contract by the
commissioner; contracts for development of revenue
producing facilities within the state parks andrecreational facilities; level of investment of
contracts; term of investment contract; reservation
of option to renew; purchase of investment in event
of default and price determination upon such event;
authorizing the transfer of wildlife management areas
to the division of natural resources; authorizing the
conveyance of specified parks to the National Parks
Service; and authorizing reimbursement agreements.
(a) When it is deemed necessary by the commissioner to enter
into a contract with a person, firm or corporation for the
operation of a commissary, restaurant, recreational facility or
other such establishment within the state parks and public
recreation system, such contract shall be for a duration not to
exceed ten years, but a contract so made may provide for an
option to renew at the commissioner's discretion for an
additional term or terms not to exceed ten years at the time of
renewal.
Any contract entered into by the commissioner shall provide
an obligation upon the part of the operator that he or she
maintain a level of performance satisfactory to the commissioner,
and shall further provide that any such contract may be
terminated by the commissioner in the event he or she determines
that such performance is unsatisfactory and has given the
operator reasonable notice thereof.
(b) When it is deemed necessary by the commissioner to enter
into a contract with a person, firm or corporation for the
development of revenue producing facilities within the state
parks and public recreation system for a period of more than tenyears, such contract shall be at least a one million dollar level
of investment for such revenue producing facilities. The term of
the investment contract may be up to twenty-five years of
duration at the determination of the commissioner and based upon
the amount of the investment and the achievement of the
environmental, recreational and cultural goals of the state park
or recreation areas system of this state.
Any contract so entered into may provide for an option to
renew at the discretion of the commissioner for an additional
term not to exceed an additional fifteen-year term at the time of
renewal.
Any such investment contract entered into by the
commissioner shall contain a provision for the purchase of the
investment upon an event of default on the part of the investor
on the contract. Such purchase may be exercised only for default.
The purchase price of the investment shall be determined by
determining a percentage by dividing the number of years
remaining in the term of the contract at the time of default by
the number of years of the term of the contract and then reducing
the purchase price by such percentage of the amount of the
investment. The amount of the investment shall be the actual
cost of constructing the facilities, not including overhead,
called for in the contract, as certified by a certified public
accountant at the time the facilities are completed. The
contract shall provide that the payments to the defaulting
investor shall be made in equal payments yearly during the
remaining period of the term of the contract.
(c) The commissioner may not solicit nor enter intocontracts, except for the operation of a commissary, restaurant
or marina for a period of less than ten years, until a master
plan for the administration of that state park or recreation area
has been developed. He or she shall supervise the preparation of
the plan and may utilize the staff of the division of natural
resources or any other state governmental agency whose expertise
he or she desires to enlist in the preparation thereof. The
commissioner shall solicit public participation and involvement
in all stages of the preparation of the plan and in the
preparation of any requests for proposals for the development of
a revenue producing facility, as described herein, with a
contract duration in excess of ten years. The plan shall be
consistent with the environmental, recreational and cultural
goals of the state park and recreation areas system of the state
and, to the extent practical, with the public comments and input
received during plan development.
(d) If the commissioner considers a proposal for the
development of a revenue producing facility, as described herein,
such proposal shall be made available to the public in a
convenient location in the county wherein the proposed facility
may be located. The commissioner shall publish a notice of the
proposal by Class I legal advertisement in accordance with the
provisions of article three, chapter fifty-nine of this code.
The publication area is the county in which the proposed facility
would be located. Any citizen may communicate by writing to the
commissioner his or her opposition or approval to such proposal
within a period of not less than thirty days from the date of the
publication of notice.
(e) No contract of a term greater than ten years may be
entered into by the commissioner until a public hearing is held
in the vicinity of the location of the proposed facility with at
least two weeks notice of such hearing by Class I publication
pursuant to section two, article three, chapter fifty-nine of
this code. The commissioner shall make findings prior to
rendering a decision on any proposed contract of a duration of
more than ten years. All studies, records, documents and other
materials which are considered by the commissioner in making such
findings as required herein shall be made available for public
inspection at the time of the publication of the notice of public
hearing and at a convenient location in the county where the
proposed development may be located.
The commissioner shall make rules in accordance with chapter
twenty-nine-a of this code for the conduct of the hearing
required by this section. Persons attending such hearings shall
be permitted a reasonable opportunity to be heard on the proposed
development.
At such hearing the commissioner shall present in writing
the following findings and supporting statements therefor:
(1) That the proposed development will not deprive users of
the state park or recreational area of existing recreational
facilities in any significant fashion;
(2) That the proposed development will not have substantial
negative impact on the environmental, scenic or cultural
qualities of the said park or area; and
(3) That the proposed development, considered as a whole, is
of benefit to the recreational goals of the state and isconsistent with the master plan developed for that park or
recreational area.
(f) Following a public hearing as prescribed herein any
interested person may submit to the commissioner written comments
on the proposed development. All comments made at a hearing, in
addition to those received in writing within thirty days after
any such hearing, shall be considered by the commissioner in the
determination of whether to approve the proposed development.
(g) The commissioner may not enter into any contract of a
duration of more than ten years unless all procedures and
requirements as prescribed by this section have been complied
with.
(h) The commissioner shall make a decision whether to
approve any proposal to enter into a contract for a duration of
more than ten years within sixty days after the conclusion of the
hearing as specified herein.
(i) The commissioner, upon approval of the secretary of the
department of commerce, labor and environmental resources, may
transfer the following wildlife management areas to the division
of natural resources: Teter Creek, Big Ditch Lake, Pleasants
Creek, Plum Orchard. Upon such transfer, the commissioner, upon
approval of the secretary, shall transfer the lands, buildings,
personnel, assets and liabilities associated with the management
and operations of the wildlife management areas so transferred to
the division of natural resources:
Provided,
That any rights or
benefits of employees so transferred shall not be altered or
amended as a result of the transfer:
Provided, however,
that the
operating and administrative budgets for any wildlife managementarea so transferred shall be provided through funds, whether
state general revenue, federal funds or special revenue,
currently available to the division of natural resources or any
additional appropriations which may from time to time be
appropriated by the Legislature:
Provided further,
That the
division of tourism and parks shall not be required to transfer
any funds or appropriation to the division of natural resources.
(j) The commissioner is authorized, upon approval of the
secretary of the department of commerce, labor and environmental
resources, to enter into reimbursement arrangements with the West
Virginia Parkways, Economic Development and Tourism Authority
created pursuant to article sixteen-a, chapter seventeen of this
code to defray the cost of operating and maintaining any park or
recreation area under the jurisdiction of the division of tourism
and parks located within seventy-five miles of the turnpike as
that term is defined in section five, sixteen-a, chapter
seventeen of this code. The West Virginia Parkways, Economic
Development and Tourism Authority, upon request, may enter into
such reimbursement agreements:
Provided,
That at no time may the
Authority agree to reimburse the division of tourism and parks
for more than twenty percent of the actual operating and
administrative costs of any park or recreation area:
Provided,
however,
That prior to entering into any reimbursement agreement,
the division of tourism and parks and the West Virginia Parkways,
Economic Development and Tourism Authority shall prepare and
submit a report detailing the content of any such agreement to
the joint committee on government and finance.
(k) The commissioner is authorized, with the approval of thesecretary of the department of commerce, labor and environmental
resources and the governor, to convey the lands and property of
Pipestem, Babcock and Carnifax Ferry State Parks to the National
Park Service of the government of the United States of America:
Provided,
That the National Park Service agrees to any such
conveyance:
Provided, however,
That the division of tourism and
parks shall hold a public hearing in the county where the park is
located prior to any decision to convey the park in order to
elicit local input on whether to undertake any such conveyance:
Provided further,
That any conveyance shall be subject to the
provisions of article one-a, chapter twenty of this code:
And
provided further,
That it shall be prohibited to transfer or
convey any mineral rights pursuant any conveyance undertaken
pursuant to this subsection:
And provided further,
That the
National Park Service shall guarantee that any of the state parks
acquired through the provisions of this subsection will be
operated by the National Park Service as a separate and distinct
National Park:
And provided further,
That authorization for
these conveyances shall expire on the thirtieth day of June, one
thousand nine hundred ninety-five:
And provided further,
That
qualified persons who were employed at the park immediately prior
to the conveyance shall be employed by the National Park Service
at not less than a comparable total compensation package:
And
provided further,
That notwithstanding any other provisions of
this code to the contrary, in filling vacancies at other state
parks or within the division of tourism and parks, the secretary
of the department of commerce, labor and environmental resources
and other persons authorized to fill vacancies within otherdepartments or agencies shall for a period of twenty-four months
after the conveyance give preference for re-employment over all
existing employees in such parks or the division of tourism and
parks or any other state department or agency to qualified
persons who were permanently employed at the park prior to the
conveyance:
And provided further,
That qualified persons who
were permanently employed at the park immediately prior to the
conveyance shall not supersede those employees with recall rights
in other state departments or agencies. The National Park
Service shall agree as a part of any conveyance that all
historically significant landmarks shall be preserved and that
any monument or building which was dedicated or named to honor
any citizen shall retain such name.