COMMITTEE SUBSTITUTE

FOR

H. B. 2672

(By Delegate Michael)


(Originating in the Committee on Finance)


[February 24, 1998]


A BILL to amend and reenact section two, article two-a, chapter five-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact sections six and seven, article eighteen, chapter twenty- nine of said code, all relating to the state railroad authority generally; exempting the state rail authority as an agency for which the secretary of administration is to provide alternative fuel vehicles; legislative rules; providing special competitive bid requirements in certain circumstances; providing exemption from competitive bid requirements in certain circumstances; and permitting state rail authority to enter into contracts or agreements with the division of highways for the lease or purchase and maintenance of vehicles.

Be it enacted by the Legislature of West Virginia:
That section two, article two-a, chapter five-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that sections six and seven, article eighteen, chapter twenty-nine of said code be amended and reenacted, all to read as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.

ARTICLE 2A. USE OF ALTERNATIVE FUELS IN STATE-OWNED VEHICLES.
§5A-2A-2. Purchase or lease of fleet vehicles; use of alternative fuels.

(a) After the first day of September, one thousand nine hundred ninety-three, the secretary may purchase or lease alternative fuel vehicles for use by any state agency.
(b) The secretary may acquire or be provided with equipment or refueling facilities necessary to operate alternative fuel vehicles by any of the following methods:
(1) Purchase or lease as authorized by law;
(2) Gift or loan of the equipment or facilities; or
(3) Gift or loan of the equipment or facilities or other arrangement pursuant to a service contract for the supply of alternative fuels.
(c) If such equipment or facilities are donated, loaned or provided through other arrangement with the supplier of alternative fuels, the supplier shall be entitled to recoup its actual cost of donating, loaning or providing the equipment or facilities through its fuel charges under the fuel supply contract.
(d) Of the total number of vehicles acquired or caused to be acquired by the secretary for use by any state agency vehicle fleet:
(1) Twenty percent in fiscal year one thousand nine hundred ninety-five;
(2) Thirty percent in fiscal year one thousand nine hundred ninety-six;
(3) Fifty percent in fiscal year one thousand nine hundred ninety-seven, shall be alternative fuel vehicles.
(e) The secretary shall review this alternative fuel use program on or before the thirty-first day of December, one thousand nine hundred ninety-seven, and if the secretary determines that the program is effective in reducing costs to the state, taking into consideration the cost of operating alternative fuel vehicles over the expected useful life of such the vehicles, the secretary shall, of the total number of vehicles acquired in each fiscal year, acquire at least seventy-five percent alternative fuel vehicles for state agency fleets beginning the first day of September, one thousand nine hundred ninety-eight, and thereafter.
(f) The secretary shall, in the annual fiscal report to the Legislature, show the progress in achieving these percentage requirements by itemizing purchases, leases and conversions of motor vehicles and usage of alternative fuels.
(g) The secretary, in the development of the alternative fuel use program, shall consult with state agency fleet operators, vehicle manufacturers and converters, fuel distributors and others to delineate the vehicles to be covered, taking into consideration range, specialty uses, fuel availability, vehicle manufacturing and conversion capability, safety, resale values and other relevant factors. In order to maximize the savings to the state, the secretary shall attempt to the extent possible to convert first those vehicles that are used the most often for the most miles. The secretary may meet the percentage requirements of this section through purchase or lease of new vehicles, purchase or lease of used alternative fuel vehicles or the conversion of existing vehicles, in accordance with federal and state requirements and applicable safety laws and standards, to use alternative fuels.
(h) The secretary may reduce any percentage specified or waive the requirements of subsection (d) of this section for any state agency upon a determination by the secretary that either of the following situations apply:
(1) The agency's vehicles will be operating primarily in an area in which neither the agency nor a supplier has or can reasonably be expected to establish a central refueling station for alternative fuels.
(2) The agency is unable to acquire or be provided equipment or refueling facilities necessary to operate alternative fuel vehicles at a projected cost that is reasonably expected to result in no greater net costs than the continued use of traditional gasoline or diesel fuels measured over the expected useful life of the equipment or facilities supplied.
(i) The provisions of this section do not apply to:
(1) Vehicles operated by law-enforcement agencies;
(2) Emergency vehicles;
(3) Vehicles operated by public transit authorities;
(4) School buses; or
(5) Vehicles operated by the state rail authority; or
(5) (6) Nonroad vehicles, including farm and construction vehicles.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 18. WEST VIRGINIA STATE RAIL AUTHORITY.
§29-18-6. Powers, duties and responsibilities of authority generally.

The West Virginia railroad maintenance state rail 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 legislative 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 the obligations 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 legislative 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 legislative rules and regulations for the use of such these 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 the performance 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 considers 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)(A) 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 ten 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 the 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
(B) Where rolling stock, equipment or trackage of the authority is in need of immediate maintenance, repair or reconstruction in order to avoid a cessation of its operations, economic loss, the inability to provide essential service to customers or danger to authority personnel or the public, the following requirements and procedures for entering into the contract or agreement to remedy the condition shall be in lieu of those provided in article three, chapter five-a of this code or any legislative rule promulgated pursuant thereto:
(i) If the cost under the contract or agreement involves an expenditure of more than one thousand dollars, but ten thousand dollars or less, the authority shall award the contract to or enter into the agreement with the lowest responsible bidder based upon at least three oral bids made pursuant to the requirements of the contract or agreement.
(ii) If the cost under the contract or agreement, other than one for compensation for personal services, involves an expenditure of more than ten thousand dollars, but twenty-five thousand dollars or less, the authority shall award the contract to or enter into the agreement with the lowest responsible bidder based upon at least three bids, submitted to the authority in writing on letterhead stationery, made pursuant to the requirements of the contract or agreement.
(C) Notwithstanding any other provision of this code to the contrary, 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 the provisions of article three, chapter five-a of this code or any legislative rule promulgated pursuant thereto, and the authority may enter into such the contract or lease or such the agreement pursuant to negotiation and upon such terms and conditions and for such a period of time 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 the railroad project.
(D) 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 this 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 and applied 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 the terms, conditions, rates or rentals as that 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 the 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 Regional Rail Reorganization Act of 1973, and to qualify for rail service continuation subsidies pursuant to the federal Regional Rail Reorganization Act of 1973.
§29-18-7. Operations; purchases.
(a) The authority may sell, transfer or lease all, or any part, of the rail properties and other property acquired under the provisions of this article to any responsible person, firm or corporation for continued operation of a railroad or other public purpose: Provided, That approval for the continued operation or other public purpose, is granted by the interstate commerce commission of the United States, whenever approval is required. The sale, transfer or lease shall be for a price and subject to any further terms and conditions which the authority feels are necessary and appropriate to effectuate the purposes of this article.
(b) After acquiring any railroad lines within the state, the authority shall assist any responsible person, firm or corporation to secure, as promptly as possible, any order or certificate required by the interstate commerce commission for the performance of railroad service. The authority shall also give any assurances or guarantees which are necessary or desirable to carry out the purposes of this article.
(c) The authority may take whatever steps are necessary in order to determine the absolute fee simple title ownership of all rail properties of any railroad within the state. The determination may include the status of the rail properties with respect to easements, rights-of-way, leases, reversionary rights, fee simple title ownership and any and all related title matters. The authority may retain attorneys, experts or other assistants, and issue any contracts as are necessary to make the title determination.
(d) All rail properties within the state offered for sale by any railway corporation after the date of enactment of this article shall be offered for sale to the state in the first instance.
(e) The authority may cooperate with other states in connection with the purchase of any rail properties within this state. The authority may also acquire railroad rights in other states and rail properties lying in other states in order to carry out the intentions and purposes of this article. In carrying out the powers and duties conferred by this article, the authority may enter into general contractual arrangements, including joint purchasing and leasing of rail properties with other states.
(f) In weighing the varied interests of the residents of this state, the authority shall give consideration to the individual interest of any county or municipality expressing a desire to acquire a portion, or all, of the abandoned real estate located within its jurisdiction. The authority may exercise its powers under this article to acquire the abandoned property for subsequent conveyance to the county or municipality.
(g) The authority may utilize federal funds, grants, gifts or donations which are available and any sums that are appropriated in carrying out the purposes of this article. The authority may also apply for discretionary or other funds available under the provisions of the federal Regional Rail Reorganization Act of 1973 or other federal programs.
(h) The authority may apply for an acquisition and modernization loan, or a guarantee of a loan, pursuant to Section 403 of the federal Regional Rail Reorganization Act of 1973, or any other federal programs, within the limit of funds appropriated for those purposes.
(i) The authority is authorized to purchase any railroad rolling stock, equipment and machinery necessary for the operation and maintenance of any rail properties purchased by it on behalf of the state, with any funds made available for this purpose. The authority may also acquire and have available, a pool of equipment and machinery which may be utilized by the operators of the rail properties for the purpose of track maintenance and other related railroad activities, upon terms and conditions determined by the authority. Notwithstanding the provisions of sections forty-eight through fifty-three, article three, chapter five-a of this code to the contrary, the authority may enter into contracts or agreements for the lease or purchase and maintenance of any vehicles required for its purposes with the division of highways. For those purposes, the division of highways is authorized and empowered to enter into contracts or agreements for the lease or purchase and maintenance of any vehicles with the authority.
(j) The authority may contract for the rebuilding or relocation of any rail properties acquired pursuant to this article, within the provisions of the federal Regional Rail Reorganization Act of 1973, or any other applicable legislation. The authority may also spend any sums appropriated, as well as any other available funds, for the modernization, rebuilding and relocation of any rail properties owned by the state or by a private carrier. The authority may do any maintenance on any rail properties owned by the state as is necessary in the public interest.
(k) The authority may contract with any domestic or foreign person, firm, corporation, agency or government to provide, maintain or improve rail transportation service on the rail properties acquired by the state under this article.
(l) Whenever the authority determines that any rail properties acquired by the state are no longer needed for railroad purposes, it may, with the permission of the governor, permanently or temporarily transfer the rail properties to any other state department or agency or political subdivision of the state, which shall utilize the properties for a public purpose. Whenever more than one department or agency or political subdivision wishes to utilize the property, the authority shall resolve such a conflict and make a prompt determination of the reasonable and proper order of priority, taking into consideration any applicable state plans, policies or objectives. If no state department or agency or political subdivision wants the properties, the authority may sell them, with the proceeds deposited to the special railroad fund established by this article. A public hearing is required prior to the transfer or sale of any rail properties by the authority.