SB686 INTR

Senate Bill No. 686
(By Senators Helmick, Fanning, Love, Anderson, Unger, Chafin, Edgell, Minard, McCabe, Bowman, Plymale, Snyder, Sharpe, Ross, Mitchell, Boley, Deem, Oliverio, Hunter and Rowe)
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[Introduced February 18, 2002; referred to the Committee
on Government Organization; and then to the Committee on Finance

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A BILL to amend chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article twenty-seven, relating to creating a coal heritage highway authority.

Be it enacted by the Legislature of West Virginia:

That chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article twenty-seven, to read as follows:
ARTICLE 27. COAL HERITAGE HIGHWAY AUTHORITY.
§29-27-1. Legislative findings.

The Legislature finds that the creation and empowering of a statutory corporation to work with landowners, county and municipal officials and community leaders, state and federal government agencies, recreational user groups, persons interested in historic preservation and other interested parties to enable and facilitate acquisition, development, preservation and enhancement of facilities and resources proximate to or associated with the coal heritage trail, a national scenic byway in West Virginia, will greatly assist in the economic development of the state through increased tourism.
§29-27-2. Definitions.

Unless the context clearly requires a different meaning, the terms used in this section have the following meanings:

(1) "Authority" means the coal heritage highway authority;

(2) "Board" means the board of the coal heritage highway authority;

(3) "Charge" means, for purposes of limiting liability for recreational purposes set forth in this article, the amount of money asked in return for an invitation to enter or go upon the land, including a one-time fee for a particular event, amusement, occurrence, adventure, incident, experience or occasion as set by the authority: Provided, That the authority may set charges in differing amounts for different categories of participants, including, but not limited to, in-state and out-of-state participants, as the authority sees fit;

(4) "Coal Heritage Trail" means that part of West Virginia Route 16 connecting Beckley and Welch, and United States Route 52, connecting Bluefield and Welch, all designated as a national scenic byway, and existing within the counties of Mercer, McDowell, Raleigh and Wyoming.
§29-27-3. Authority created; appointment of board; terms.

(a) There is created the "Coal Heritage Highway Authority" which is a public corporation and a government instrumentality existing for the purpose of promoting economic development and tourism in areas along the national scenic byway designated as the coal heritage trail, through the acquisition, development, preservation, restoration or enhancement of roads, trails, lands and structures, including areas or structures associated with surface transportation, which have unique and significant historic, architectural or cultural importance associated with the area's heritage of coal production, and which are located in one or more of the counties of Mercer, McDowell, Raleigh and Wyoming. The authority shall cooperate with counties, municipalities, state and federal agencies, public nonprofit corporations, private corporations, associations, partnerships and individuals for the purpose of planning, assisting and establishing recreational, tourism, industrial, economic and community development of the coal heritage trail for the benefit of West Virginia.

(b) The authority shall be governed by a board of five members. The secretary of arts and education, or the secretary's designee, shall serve as a member and shall act as the chair of the board. The county commission of each of the four counties in which the coal heritage trail is located shall appoint one person to serve on the board. Of the members of the board first appointed, the members representing Mercer and McDowell counties shall be appointed to terms ending the thirtieth day of June, two thousand three, and the members representing Raleigh and Wyoming counties shall be appointed to terms ending the thirtieth day of June, two thousand four. Persons appointed or reappointed to these positions shall be appointed for terms of two years in length.

(c) Any appointed member whose term has expired shall serve until his or her successor has been duly appointed. Any person appointed to fill a vacancy occurring prior to the expiration of the term for which his or her predecessor was appointed shall be appointed only for the remainder of the unexpired term. Any appointed member is eligible for reappointment. Members of the board are entitled to the same compensation and expense reimbursement for performance of official duties as is paid to members of the Legislature for their interim duties as recommended by the citizens legislative compensation commission and authorized by law. All expenses incurred shall be payable solely from funds of the authority or from funds appropriated for those purposes by the Legislature and no liability or obligation shall be incurred by the authority beyond the extent to which moneys are available from those sources.

(d) Before the authority issues any revenue bonds or revenue refunding bonds under the authority of this article, each appointed voting member of the board shall execute a surety bond in the penal sum of twenty-five thousand dollars and the officers and executive director of the board shall each execute a surety bond in the penal sum of fifty thousand dollars. Each surety bond shall be conditioned upon the faithful performance of the duties of the member, officer or director, shall be executed by a surety company authorized to transact business in this state as surety and shall be approved by the governor and filed in the office of the secretary of state. The authority shall pay premiums on the surety bonds from funds accruing to the authority.
§29-27-4. Board; quorum; executive director; expenses.

(a) The board is the governing body of the authority and the board shall exercise all the powers given the authority in this article. The board shall meet at least monthly. The chair of the board may call special meetings as required: Provided, That in July of each even-numbered year, the board shall meet to elect a secretary and treasurer from among its own members.

(b) A majority of the members of the board constitutes a quorum, and a quorum must be present for the board to conduct business. Unless the bylaws require a larger number, action may be taken by majority vote of the members present.

(c) The board may prescribe, amend and repeal bylaws governing the manner in which the business of the authority is conducted and shall review and approve an annual budget.

(d) The board shall appoint an executive director to act as its chief executive officer, to serve at the will and pleasure of the board. The executive director may be employed on a full-time or part-time basis. The board, acting through its executive director, may employ any other personnel considered necessary. The board shall set the compensation of authority employees. Unless otherwise prohibited by law, the board may appoint counsel and legal staff for the authority and retain temporary engineering, financial and other consultants or technicians as may be required for any special study or survey consistent with the provisions of this article. The executive director shall carry out plans to implement the provisions of this article and to exercise those powers enumerated in the bylaws. The executive director shall prepare annually a budget to be submitted to the board for its review and approval.

(e) All costs incidental to the administration of the authority, including office expenses, personal services expense and current expense, shall be paid in accordance with guidelines issued by the board from funds accruing to the authority.

(f) All expenses incurred in carrying out the provisions of this article are payable solely from funds provided under the authority of this article and no liability or obligation may be incurred by the authority under this article beyond the extent to which moneys have been provided under the authority of this article.
§29-27-5. Powers of authority.

The authority, as a public corporation and governmental instrumentality exercising public powers of the state, may exercise all powers necessary or appropriate to carry out the purposes of this article, except the power of eminent domain. Powers of the authority include, but are not limited to, the power:

(1) To acquire, own, hold and dispose of property, real and personal, tangible and intangible;

(2) To lease property, whether as lessee or lessor, and to acquire or grant through easement, license or other appropriate legal form, the right to develop and use property and open it to the use of the public;

(3) To mortgage or otherwise grant security interests in its property;

(4) To procure insurance against any losses in connection with its property; license or easements; contracts, including hold-harmless agreements; operations or assets in such amounts and from such insurers as the authority considers desirable;

(5) To maintain sinking funds and reserves as the board determines appropriate for the purposes of meeting future monetary obligations and needs of the authority;

(6) To sue and be sued, implead and be impleaded and complain and defend in any court;

(7) Unless otherwise prohibited by law, to contract for the provision of legal services by private counsel and, notwithstanding the provisions of article three, chapter five of this code, the counsel may, in addition to the provisions of other legal services, represent the authority in court, negotiate contracts and other agreements on behalf of the authority, render advice to the authority on any matter relating to the authority, prepare contracts and other agreements and provide other legal services requested by the authority;

(8) To adopt, use and alter at will a corporate seal;

(9) To make, amend, repeal and adopt bylaws for the management and regulation of its affairs;

(10) To appoint an executive director and other employees or agents and to contract for and engage the services of consultants;

(11) To make contracts of every kind and nature and to execute all instruments necessary or convenient for carrying on its business, including contracts with any other governmental agency of this state or of the federal government or with any person, individual, partnership or corporation to effect any or all of the purposes of this article;

(12) Without in any way limiting any other subdivision of this section, to accept grants and loans from and enter into contracts and other transactions with any federal agency;

(13) To maintain an office at such places within the state as it may designate;

(14) To borrow money and to issue its bonds, security interests or notes and to provide for and secure the payment of the bonds, security interests or notes and to provide for the rights of the holders of the bonds, security interests or notes and to purchase, hold and dispose of any of its bonds, security interests or notes;

(15) To sell, at public or private sale, any bond or other negotiable instrument, security interest or obligation of the authority in such manner and upon such terms as the authority considers would best serve the purposes of this article;

(16) To issue its bonds, security interests and notes payable solely from the revenues or other funds available to the authority, and the authority may issue its bonds, security interests or notes in such principal amounts as it considers necessary to provide funds for any purpose under this article, including:

(A) The payment, funding or refunding of the principal of, interest on or redemption premiums on, any bonds, security interests or notes issued by it whether the bonds, security interests, notes or interest to be funded or refunded have or have not become due;

(B) The establishment or increase of reserves to secure or to pay bonds, security interests, notes or the interest on the bonds, security interest or notes and all other costs or expenses of the authority incident to and necessary or convenient to carry out its corporate purposes and powers. Any bonds, security interests or notes may be additionally secured by a pledge of any revenues, funds, assets or moneys of the authority from any source whatsoever;

(17) To issue renewal notes or security interests, to issue bonds to pay notes or security interests and, whenever it considers refunding expedient, to refund any bonds by the issuance of new bonds, whether the bonds to be refunded have or have not matured except that no renewal notes may be issued to mature more than ten years from the date of issuance of the notes renewed and no refunding bonds may be issued to mature more than twenty-five years from the date of issuance;

(18) To apply the proceeds from the sale of renewal notes, security interests of refunding bonds to the purchase, redemption or payment of the notes, security interests or bonds to be refunded;

(19) To accept gifts or grants of property, funds, security interests, money, materials, labor, supplies or services from the federal government or from any governmental unit or any person, firm or corporation and to carry out the terms or provisions of or make agreements with respect to or pledge any gifts or grants and to do any and all things necessary, useful, desirable or convenient in connection with the procuring, acceptance or disposition of gifts or grants;

(20) To the extent permitted under its contracts with the holders of bonds, security interests or notes of the authority, to consent to any modification of the rate of interest, time of payment of any installment of principal or interest, security or any other term of any bond, security interest, note, contract or agreement of any kind to which the authority is a party;

(21) To sell security interests in the loan portfolio of the authority. The security interests shall be evidenced by instruments issued by the authority. Proceeds from the sale of security interests may be issued in the same manner and for the same purposes as bond and note venues;

(22) To propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code as necessary to implement and make effective the powers, duties and responsibilities invested in the authority by the provisions of this article and otherwise by law. Notwithstanding any other provisions of this code to the contrary, until the Legislature has authorized the rules, the authority may promulgate emergency rules for those purposes pursuant to section fifteen, article three, chapter twenty-nine-a of this code;

(23) To acquire, develop, preserve, restore or enhance lands and structures which are associated with surface transportation, which have unique and significant historic, architectural or cultural importance associated with the area's heritage of coal production and which are located in Mercer, McDowell, Raleigh or Wyoming county.

(24) To exercise all additional powers as may be necessary or appropriate for the exercise of the powers conferred in this section;

(25) To exercise all of the powers which a corporation may lawfully exercise under the laws of this state;

(26) To develop, maintain and operate or to contract for the development, maintenance and operation of projects appropriate to the authority;

(27) To enter into contract with landowners and other persons holding an interest in the land being used for its historic, cultural or tourist facilities to hold those landowners and other persons harmless with respect to any claim in tort growing out of the use of the land for public tourism or growing out of the tourism activities operated or managed by the authority from any claim except a claim for damages proximately caused by the willful or malicious conduct of the landowner or other person or any of his or her agents or employees;

(28) To assess and collect a reasonable fee from those persons who use trails, parking facilities, visitor centers or other facilities owned or operated by the authority, and to retain and use that revenue for any purposes consistent with this article;

(29) To cooperate with the state of Virginia and appropriate state and local officials and community leaders in Virginia to enhance the effectiveness of trails or other authority projects or facilities which may be located on the border which may connect to similar projects across the state border;

(30) To enter into contracts or other appropriate legal arrangements with landowners under which their land is made available for use consistent with the purposes of the authority;

(31) To directly operate and manage historic, cultural, architectural and recreational activities and facilities consistent with the purposes of the authority;

(32) To undertake promotion and advocacy of projects, programs or facilities related to the coal heritage highway and the purposes of this article, and to make grants consistent with the purposes and goals of the board; and

(33) To invest funds in excess of current needs in accordance with provisions of article six, chapter twelve of this code.
§29-27-6. Bonds not a debt of the state.

Revenue bonds and revenue refunding bonds of the authority issued under the provisions of this article do not constitute a debt of the state or of any political subdivision of the state or a pledge of the faith and credit of the state or of any political subdivision, but the bonds shall be payable solely from the funds provided pursuant to this article from revenues resulting from the issuance of bonds. Each bond shall contain on its face a statement to the effect that neither the state nor any political subdivision of the state is obligated to pay the bond or the interest on the bond except from revenues of the historic, cultural, architectural or recreational project or projects for which they are issued and that neither the faith or credit nor the taxing power of the state or any political subdivision of the state is pledged to the payment of the principal or the interest on the bonds.
§29-27-7. Criminal penalties.

Any person who violates any legislative rule authorized pursuant to this article is guilty of a misdemeanor and, upon conviction thereof, shall for each offense be fined not more than five hundred dollars.

§29-27-8. Limiting liability; insurance exemption for certain horsemen.

(a) Notwithstanding the provisions of section three, article twenty-five, chapter nineteen, an owner of land used by or for the stated purposes of the coal heritage highway authority, whether with or without charge, owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous or hazardous condition, use, structure or activity on the premises to persons entering for those purposes.

(b) Notwithstanding the provisions of section three, article twenty-five, chapter nineteen of this code, the landowner or lessor of the property used by the authority for purposes of this article does not thereby: (1) Extend any assurance that the premises are safe for any purpose; or (2) confer upon persons the legal status of an invitee or licensee to whom a duty of care is owed; or (3) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of these persons.

(c) Unless otherwise agreed in writing, an owner who grants a lease, easement or license of land to the authority for purposes provided in this article owes no duty of care to keep that land safe for entry or use by others or to give warning to persons entering or going upon the land of any dangerous or hazardous conditions, uses, structures or activities thereon. An owner who grants a lease, easement or license of land to the authority for recreational purposes does not by giving a lease, easement or license: (1) Extend any assurance to any person using the land that the premises are safe for any purpose; (2) confer upon those persons the legal status of an invitee or licensee to whom a duty of care is owed; or (3) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of a person who enters upon the leased land. The provisions of this section apply whether the person entering upon the land is an invitee, licensee, trespasser or otherwise.

(d) Nothing herein limits in any way any liability which otherwise exists for deliberate, willful or malicious infliction of injury to persons or property: Provided, That nothing herein limits in any way the obligation of a person entering upon or using the land of another for recreational purposes to exercise due care in his or her use of the land and in his or her activities thereon, so as to prevent the creation of hazards or the commission of waste by himself or herself: Provided, however, That horsemen, as defined in section two, article four, chapter twenty of this code, who are using land or facilities held or operated pursuant to this article for equestrian activities and who are in compliance with rules proposed by the authority and approved by the Legislature, but who are not engaged in a commercial profit-making venture are exempt from the provisions of subsection (d), section five, article four, chapter twenty of this code.
§29-27-9. Insurance policies.

Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any owner of lands covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing the policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of the policy within the policy limits, the immunity from liability of the insured by reason of the use of the insured's land for recreational purposes, unless the provision or endorsement is rejected in writing by the named insured.
§29-27-10. Exemption from taxation.

Revenues, properties, operations and activities of the authority are exempt from the payment of any taxes or fees to the state or any of its political subdivisions. Property, real and personal, owned by or leased and used exclusively by each authority shall be public property and therefore exempt from taxation in accordance with section nine, article three, chapter eleven of this code. Revenue bonds or other evidences of indebtedness issued pursuant to the provision of this article, and the interest thereon, shall be exempt from taxation, except inheritance and transfer taxes.
§29-27-11. Fund established; authorized expenditures; annual report.

(a) There is established in the state treasury a special revenue fund designated the "Coal Heritage Highway Authority Fund", which shall be administered by the coal heritage highway authority board.

(b) All funds accruing to the authority pursuant to the provisions of this article are not money due the state, and shall be deposited into the fund and expended in accordance with provisions of this article.

(c) Any remaining balance, including accrued interest, in the fund at the end of the fiscal year shall not revert to the general revenue fund, but shall remain in the account.

(d) On or before the first day of January of each year, the board shall submit to the Legislature an annual fiscal year report on the funds and the activities of the authority including, but not limited to, the previous fiscal year's receipts and expenditures; and projected receipts and expenditures for the current and next fiscal years. The board shall send the report to the legislative librarian.

NOTE: The purpose of this bill is to establish the Coal Heritage Highway Authority to promote economic development in the state related to the Coal Heritage Trail, a national scenic byway in Mercer, McDowell, Raleigh and Wyoming counties.

The article is new; therefore, strike-throughs and underscoring have been omitted.