H. B. 4453


(By Delegates Staton and Browning)
[Introduced February 11, 1994; referred to the
Committee on the Judiciary.]




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, relating to contracts for operation of commissaries and other facilities at state parks; requiring that contracts to privatize concession functions be authorized by an act of the Legislature; providing that certain contracts may continue until the expiration of current contract; and prohibiting renewals of contracts unless they are authorized by an act of the Legislature.
Be it enacted by the Legislature of West Virginia:

That section fifteen, article one, chapter 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; new and renewed contracts authorized by legislative act; termination of contract by the commissioner; contracts for development of revenue producing facilities within the state parks and recreational facilities; level of investment of contracts; term of investment contract; reservation of option to renew; and purchase of investment in event of default and price determination upon such event.

(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, the commissioner shall request that the Legislature enact a law authorizing the contract. A new contract or a renewal of a current contract may not be entered into by the commissioner unless authorized by an act of the Legislature. If authorized by an act of the Legislature, such the 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 if authorized by an act of the Legislature, 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 ten years and if authorized by an act of the Legislature, such the 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 as authorized by an act of the Legislature 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 as authorized by an act of the Legislature 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 into contracts, except for the operation of a commissary, restaurant or marina for a period of less than ten years unless authorized by an act of the Legislature, 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 as authorized by an act of the Legislature 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 is consistent with the master plan developed for that park or recreational area; and
(4) That an act of the Legislature has authorized this specific contract.
(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.
Notwithstanding any other provision of this code to the contrary, a contract, not in effect on the effective date of this amendment, 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 may not be entered into unless the contract is authorized by an act of the Legislature.



NOTE: The purpose of this bill is to require that contracts to privatize concession functions at state parks and recreational facilities be authorized by an act of the Legislature. The bill allows contracts currently in effect to continue until the expiration of current contract. The bill also prohibits renewals of contracts unless they are authorized by an act of the Legislature.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.