Bill Text: WV HB2697 | 2018 | Regular Session | Introduced
Bill Title: Establishing regional recreation authorities and areas
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-01-10 - To House Political Subdivisions [HB2697 Detail]
Download: West_Virginia-2018-HB2697-Introduced.html
FISCAL
NOTE
WEST virginia Legislature
2017
regular session
By Delegate Boggs
[
to the Committee on Political Subdivisions then Government Organization.
A BILL to amend and
reenact §20-7-1 of the Code of West Virginia, 1931, as amended; to amend said
code by adding thereto a new article, designated §20-14A-1, §20-14A-2, §20-14A-3,
§20-14A-4, §20-14A-5, §20-14A-6, §20-14A-7, §20-14A-8, §20-14A-9, §20-14A-10
and §20-14A-11; and to amend and reenact §20-15-1, §20-15-2, §20-15-3, §20-15-4
and §20-15-5 of said code, all relating to establishing regional recreation
authorities and areas;
establishing trails for off-highway
recreational vehicle use; providing for reimbursement by authority for natural
resources police officers or county sheriffs; authorizing creation of regional
recreation authority as joint development entity formed by three or more
contiguous counties; setting forth findings and definitions; establishing
powers and composition of governing board; providing for financial review and
oversight of public funds; prohibiting certain conduct in regional recreation
area; establishing requirements for bidding and purchasing; prohibiting
conflicts of interest; limiting liability; clarifying duties and
responsibilities of participants to landowners and lessors in the regional
recreation area; and establishing criminal penalties and civil remedies.
Be it enacted by the
Legislature of West Virginia:
That §20-7-1 of the
Code of West Virginia, 1931, as amended, be amended and reenacted; that said
code be amended by adding thereto a new article, designated §20-14A-1, §20-14A-2,
§20-14A-3, §20-14A-4, §20-14A-5, §20-14A-6, §20-14A-7, §20-14A-8, §20-14A-9, §20-14A-10
and §20-14A-11; and that §20-15-1, §20-15-2, §20-15-3, §20-15-4 and §20-15-5 of
said code be amended and reenacted, all to read as follows:
ARTICLE
7. LAW ENFORCEMENT, MOTORBOATING,
LITTER.
§20-7-1. Chief natural
resources police officer; natural resources police officers; special and
emergency natural resources police officers; subsistence allowance; expenses.
(a) The division’s
law-enforcement policies, practices and programs are under the immediate
supervision and direction of the division law-enforcement officer selected by
the director and designated as chief natural resources police officer as
provided in section thirteen, article one of this chapter.
(b) Under the supervision
of the director, the chief natural resources police officer shall organize,
develop and maintain law-enforcement practices, means and methods geared, timed
and adjustable to seasonal, emergency and other needs and requirements of the
divisions comprehensive natural resources program. All division personnel
detailed and assigned to law-enforcement duties and services under this section
shall be known and designated as natural resources police officers and are
under the immediate supervision and direction of the chief natural resources
police officer except as otherwise provided. All natural resources police
officers shall be trained, equipped and conditioned for duty and services
wherever and whenever required by division law-enforcement needs. The chief
natural resources police officer may also assign natural resources police
officers to perform law-enforcement duties on any trail, grounds, appurtenant
facility or other areas accessible to the public within the Hatfield-McCoy
Recreation Area or other regional recreation areas, under agreement that
the Hatfield-McCoy Regional Recreation Authority or other regional
recreation authorities, created pursuant to article articles
fourteen and fourteen-a of this chapter, shall reimburse the division
for salaries paid to the officers and shall either pay directly or reimburse
the division for all other expenses of the officers in accordance with actual
or estimated costs determined by the chief natural resources police officer.
(c) The chief natural
resources police officer, acting under supervision of the director, is
authorized to select and appoint emergency natural resources police officers
for a limited period for effective enforcement of the provisions of this
chapter when considered necessary because of emergency or other unusual
circumstances. The emergency natural resources police officers shall be
selected from qualified civil service personnel of the division, except in
emergency situations and circumstances when the director may designate
officers, without regard to civil service requirements and qualifications, to
meet law-enforcement needs. Emergency natural resources police officers shall
exercise all powers and duties prescribed in section four of this article for
full-time salaried natural resources police officers except the provisions of
subdivision (8), subsection (b) of said section.
(d) The chief natural
resources police officer, acting under supervision of the director, is also
authorized to select and appoint as special natural resources police officers
any full-time civil service employee who is assigned to, and has direct
responsibility for management of, an area owned, leased or under the control of
the division and who has satisfactorily completed a course of training
established and administered by the chief natural resources police officer, when
the action is considered necessary because of law-enforcement needs. The powers
and duties of a special natural resources police officer, appointed under this
provision, is the same within his or her assigned area as prescribed for
full-time salaried natural resources police officers. The jurisdiction of the
person appointed as a special natural resources police officer, under this
provision, shall be limited to the division area or areas to which he or she is
assigned and directly manages.
(e) The Director of the
Division of Forestry is authorized to appoint and revoke Division of Forestry
special natural resources police officers who are full-time civil service
personnel who have satisfactorily completed a course of training as required by
the Director of the Division of Forestry. The jurisdiction, powers and duties
of Division of Forestry special natural resources police officers are set forth
by the Director of the Division of Forestry pursuant to article three of this
chapter and articles one-a and one-b, chapter nineteen of this code.
(f) The chief natural
resources police officer, with the approval of the director, has the power and
authority to revoke any appointment of an emergency natural resources police
officer or of a special natural resources police officer at any time.
(g) Natural resources
police officers are subject to seasonal or other assignment and detail to duty
whenever and wherever required by the functions, services and needs of the
division.
(h) The chief natural
resources police officer shall designate the area of primary residence of each
natural resources police officer, including himself or herself. Since the area
of business activity of the division is actually anywhere within the
territorial confines of the State of West Virginia, actual expenses incurred
shall be paid whenever the duties are performed outside the area of primary
assignment and still within the state.
(i) Natural resources
police officers shall receive, in addition to their base pay salary, a minimum
monthly subsistence allowance for their required telephone service, dry
cleaning or required uniforms, and meal expenses while performing their regular
duties in their area of primary assignment in the amount of $130 each month.
This subsistence allowance does not apply to special or emergency natural
resources police officers appointed under this section.
(j) After June 30, 2010,
all those full-time law-enforcement officers employed by the Division of
Natural Resources as conservation officers shall be titled and known as natural
resources police officers. Wherever used in this code the term “conservation
officer”, or its plural, means “natural resources police officer”, or its
plural, respectively.
Notwithstanding any
provision of this code to the contrary, the provisions of subdivision (6),
subsection c, section twelve, article twenty-one, chapter eleven of this code
are inapplicable to pensions of natural resources police officers paid through
the Public Employees Retirement System.
ARTICLE
14A. REGIONAL RECREATION AUTHORITY TRAIL ACT.
§20-14A-1.
Legislative findings.
The
West Virginia Legislature finds that there is interest within the state for
additional well-managed trails and facilities for off-highway recreational
vehicle enthusiasts and other recreational users. By empowering three or more contiguous
counties to form regional recreation authorities to work with private
landowners, county officials, community leaders, state and federal government agencies,
recreational user groups and recreational entrepreneurs, counties may use this
act to establish new recreational trail systems and recreation management
authorities tailored to the needs of their communities to increase tourism,
outdoor recreation and economic development.
§20-14A-2.
Definitions.
Unless
the context clearly requires a different meaning, the terms used in this
section have the following meanings:
(a)
“Board” means the board of a regional recreation authority;
(b)
“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. An 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. Regional
recreation authorities may also set a charge for the joint use of two or more
regional recreation areas;
(c) “Land” includes, but is not limited to,
roads, water, watercourses, private ways and buildings, structures and
machinery or equipment thereon when attached to the realty;
(d)
“Off-highway recreational vehicle,” or the plural, means a vehicle intended for
off-highway use and includes all-terrain vehicles, utility-terrain vehicles and
motorcycles as defined in article fifteen of this chapter. It may also include
full-size automotive vehicles designed for off-highway use, such as a jeep, as
determined by the authority;
(e)
“Owner” means those vested with title to real estate and those with the ability
to exercise control over real estate and includes, but is not limited to,
tenant, lessee, licensee, holder of a dominant estate or other lawful occupant;
(f)
“Participant” means any person using the land, trails and facilities of a
regional recreation authority;
(g)
“Participating county,” “county,” or the plural, means one of the three or more
contiguous counties that have agreed to operate a regional recreation authority
as a joint development entity and to participate in its governance and support;
(h)
“Recreational purposes” or “recreation” includes, but is not limited to, any
one or any combination of the following noncommercial recreational activities:
Off-highway recreational vehicle driving and riding, hunting, fishing,
swimming, boating, camping, picnicking, hiking, pleasure driving, motorcycle or
motor vehicle driving and riding, bicycling, horseback riding, nature study,
water skiing, winter sports and visiting, viewing or enjoying historical,
archaeological, scenic or scientific sites or otherwise using land for purposes
of recreation;
(i)
“Regional recreation area” or “area” means a system of recreational trails and
appurtenant facilities, including trail head centers, parking areas, camping
facilities, picnic areas, recreational areas, historic or cultural interpretive
sites and other facilities that are a part of the system established by the
regional recreation authority for recreational purposes; and
(j)
“Regional recreation authority” or “authority” means a regional recreational
authority established by three or more counties to create a regional recreation
area for recreational purposes.
§20-14A-3.
Creation; appointment of board; terms.
(a) A
regional recreation authority may be created by three or more contiguous
counties and operate as a joint development entity for the purpose of enabling
and facilitating the development and operation of a trail system for use by
off-highway recreational vehicle enthusiasts, with significant portions of the
area being located on private property made available for use through lease,
license, easement or other appropriate legal means by willing landowners.
(b) The
county commission of each participating county in the authority shall appoint
two members of the board as follows:
(1) One
member who is a county commissioner or his or her designee. This member shall
be appointed to a four-year term; and
(2) One
member who is a landowner or who represents travel, tourism, economic
development, real estate, resource-extraction, a licensed land surveyor or
licensed professional engineer. The initial appointment shall be for a two-year
term, but all subsequent appointments shall be for a four-year term.
(c) Any
appointed member whose term has expired shall serve until his or her successor
has been duly appointed and qualified. Any person appointed to fill a vacancy
shall serve only for the unexpired term. Any appointed member is eligible for
reappointment. Members of the board are not entitled to compensation for
services performed as members but are entitled to reimbursement for all
reasonable and necessary expenses actually incurred in the performance of their
duties.
(d) A
regional recreation authority is a “public body” for purposes of the West
Virginia Freedom of Information Act, as provided in article one, chapter
twenty-nine-b of this code.
§20-14A-4.
Board; quorum; executive director; expenses.
(a) The
board is the governing body of the regional recreation authority and the board
shall exercise all the powers given the authority in this article.
(b) The
board shall meet quarterly, unless a special meeting is called by its chairman.
At the first meeting of each fiscal year beginning in an odd-numbered year, or
as soon thereafter as feasible, the board shall elect a chairman, secretary and
treasurer from among its own members.
(c) A
majority of the members of the board constitutes a quorum and a quorum shall be
present for the board to conduct business.
(d) The
board may prescribe, amend and repeal bylaws and rules governing the manner in
which the business of the authority is conducted, and rules governing the use
of the trail system and the safety of participants.
(e) The
board shall review and approve an annual budget. The fiscal year for the
authority is July 1 to June 30 the following year.
(f) The
board shall appoint a part-time or full-time executive director to act as its
chief executive officer, to serve at the will and pleasure of the board. The
board, acting through its executive director, may employ any other personnel
considered necessary and 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 exercise those powers enumerated
in the bylaws. The executive director shall prepare an annual budget to be
submitted to the board for its review and approval prior to the commencement of
each fiscal year. The budget shall contain a detailed account of all planned
and proposed revenue and expenditures for the authority for the upcoming fiscal
year, including a detailed list of employees by title, salary, cost of
projected benefits and total compensation. Before August 15 of each year, the
executive director shall provide to the board and the county commission for
each participating county a detailed list of actual expenditures and revenue by
account and recipient name for the previous fiscal year and a copy of the
approved budget for the current fiscal year.
(g) 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.
(h) All
expenses incurred in carrying out the provisions of this article shall be
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.
§20-14A-5.
Financial review and oversight.
(a) The
authority shall contract for and obtain an annual financial audit to be
conducted by a private accounting firm in compliance with generally accepted
government auditing standards. When complete, the audit shall be transmitted to
the board and the president of the county commission of each participating
county. The cost of the audit shall be paid by the authority.
(b) If
the authority receives funds from the Legislature by appropriation or grant,
the Legislative Auditor shall have the power and authority to examine the audits,
revenues, expenditures and performance of the regional recreation authority and
for these purposes shall have the power to inspect the properties, equipment,
facilities of the authority, and to request, inspect and obtain copies of any
records of the authority. For each fiscal year in which the authority receives
funds from the Legislature by appropriation or grant, the executive director
shall provide to the Legislative Auditor and Secretary of Revenue a detailed
list of expenditures and revenue by account and recipient name for the previous
fiscal year within forty-five days of the close of that fiscal year.
§20-14A-6.
Powers of authority.
The
authority, as a public corporation and joint development entity, may exercise
all powers necessary or appropriate to carry out the purposes of this article,
including, but 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
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, licenses,
easements, contracts, including hold-harmless agreements, operations or assets
in amounts and from 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, and pursue legal remedies and defenses in court;
(7) To
contract for the provision of legal services by private counsel and,
notwithstanding the provisions of article three, chapter five of this code,
counsel may represent the authority in court, negotiate and prepare contracts
and other agreements on behalf of the authority, render advice to the authority
on any matter relating to the authority, and provide other legal services as
may be 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 officers, agents and employees 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, the federal government or with any
person, individual, partnership or corporation to effect any or all of the
purposes of this article;
(12) To
accept grants and loans from, and enter into contracts and other transactions
with, any federal agency without in any way limiting any other provision of
this section;
(13) To
name the regional recreation authority and trail system, and to maintain an
office;
(14) To
borrow money, issue notes, provide payment of notes, provide rights to the
holders of notes, and purchase, hold and dispose of notes;
(15) To
issue notes payable solely from the revenues or other funds available to the
authority, and the authority may issue its 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 notes issued by it, whether the notes or interest to be funded or
refunded have or have not become due;
(B) The
establishment or increase of reserves to secure or pay notes or the interest on
the notes and all other costs or expenses of the authority incident to and
necessary or convenient to carry out its corporate purposes and powers. Notes
may be additionally secured by a pledge of any revenues, funds, assets or
moneys of the authority from any source whatsoever;
(16) To
issue renewal notes, except that no renewal notes may be issued to mature more
than ten years from the date of issuance of the notes renewed;
(17) To
apply the proceeds from the sale of renewal notes to the purchase, redemption
or payment of the notes to be refunded;
(18) To
accept gifts or grants of property, funds, security interests, money,
materials, labor, supplies or services from the federal government, other
governmental unit or any person, firm or corporation, make agreements and
fulfill the terms of any gifts or grants, and take all necessary steps to
procure, accept or dispose of gifts or grants;
(19) 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 note,
contract or agreement of any kind to which the authority is a party to the
extent permitted under its contracts with the holders of notes of the
authority;
(20) To
construct, reconstruct, improve, maintain, repair, operate and manage the
regional recreation area at the locations within the participating counties as
may be determined by the authority;
(21) To
enter into an agreement with the West Virginia Division of Natural Resources or
with the county sheriffs to provide law-enforcement services within the
regional recreation area and to reimburse the Division of Natural Resources or
the county sheriffs for their costs;
(22) To
exercise all power and authority provided in this article necessary and
convenient to plan, finance, construct, renovate, maintain and operate or
oversee the operation of the regional recreation area facilities within the
participating counties;
(23) To
exercise any additional powers as may be necessary or appropriate to fulfill
the purposes of this article;
(24) To
exercise the powers that a corporation may lawfully exercise under the laws of
this state;
(25) To
develop, maintain and operate, or to contract for the development, maintenance
and operation of the regional recreation area facilities;
(26) To
enter into contracts with landowners and other persons holding an interest in
the land used for its recreational facilities to hold those landowners and
other persons harmless with respect to any claim in tort emanating from the use
of the land for recreational purposes or activities operated or managed by the
authority, except for 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;
(27) To
assess and collect a reasonable fee from those persons who use the trails,
parking facilities, visitor centers or other facilities that are part of the
regional recreation area and to retain and utilize that revenue for any purpose
consistent with this article;
(28) To
enter into contracts or other appropriate legal arrangements with landowners in
which their land is made available for use as part of the regional recreation
area; and
(29) To
directly operate and manage recreation activities and facilities within the
regional recreation area.
§20-14A-7.
Prohibited acts; criminal penalty.
(a) A
participant may not enter or remain upon the regional recreation area without a
valid, nontransferable user permit issued by the authority and properly
displayed, except properly identified landowners or leaseholders or their
officers, employees or agents while on the land that the person owns or leases
for purposes related to the ownership or lease of the land and not for
recreational purposes.
(b) A
participant may not consume or possess any alcoholic liquor or nonintoxicating
beer at any time or on any trail within the regional recreation area.
(c)
Participants, operators and passengers of a motor vehicle within the regional
recreation area shall wear size-appropriate protective helmets at all times as
required by article one, chapter seventeen-f of this code or as otherwise
required by the authority.
(d) A
participant shall obey all traffic laws, authority rules, traffic-control
devices and signs within the regional recreation area, including those which
restrict trails to certain types of off-highway recreational vehicles, and
drive on designated, marked trails in the area. A person may not be on any
trail in the area from one-half hour before sunset to one-half hour before
sunrise except in an emergency.
(e) A
participant within the regional recreation area who is under sixteen years of
age shall at all times be under the immediate supervision of, and within sight
of, a person who is at least eighteen years of age and who either is a parent
or guardian of the youth or has the express permission of a parent or guardian
to supervise the youth. No parent, guardian or supervising adult may allow a
child under the age of sixteen years to leave that person’s sight and
supervision within the regional recreation area.
(f) A
participant within the regional recreation area may not operate a motor vehicle
in any competition or exhibition of speed, acceleration, racing, test of
physical endurance or climbing ability unless the event is sanctioned by the
authority.
(g) A
participant operating a motor vehicle within the regional recreation area shall
be subject to all of the duties applicable to the driver of a motor vehicle by
the provisions of chapter seventeen-c of this code except where inconsistent
with the provisions of this article and except as to those provisions of
chapter seventeen-c of this code which by their nature can have no application
and may not operate a motor vehicle in violation of those duties.
(h) A
participant may not operate or ride in a utility terrain vehicle, as defined in
article one, chapter seventeen-f of this code, or any other motor vehicle with
bench or bucket seating and a steering wheel for control unless equipped with
seat belts meeting, at a minimum, federal motor vehicle safety standards and
properly worn by the driver and all passengers.
(i) A
participant may not ignite a flame or start a fire within the regional
recreation area.
(j) A
participant may not possess a glass container while riding on a motor vehicle
within the regional recreation area.
(k) A
person who violates any provision of this section is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not more than $100. Prosecution or
conviction for the misdemeanor described in this subsection shall not prevent
or disqualify any other civil or criminal penalties or remedies for the conduct
prohibited by this section.
§20-14A-8.
Limiting liability.
(a) An
owner of land used by, or for the stated purposes of, a regional recreation
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 recreational purposes.
(b)
Unless otherwise agreed in writing, an owner who grants a lease, easement or
license of land to the authority for recreational purposes, whether with or
without charge, 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.
(c)
Nothing herein limits in any way any liability that 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.
§20-14A-9.
Purchasing and bidding procedures.
(a)
Whenever the authority proposes to purchase or contract for commodities or
services reasonably anticipated to equal or exceed $2,500 in cost, the purchase
or contract shall be based on competitive bids. Where the purchase of
particular commodities or services is reasonably anticipated to be $25,000 or
less, the executive director may, on behalf of the authority, solicit bids or
price quotes in any manner that the executive director deems appropriate and
the authority shall obtain its commodities or services by the lowest bid. In
lieu of seeking bids or quotes for commodities or services in this price range,
the authority may purchase those commodities and services pursuant to state
master contracts as provided in section ten-e, article three, chapter five-a of
this code.
(b)
Where the cost for the purchase of commodities or services is reasonably
anticipated to exceed $25,000, the executive director shall solicit sealed bids
for the commodities or services to be provided: Provided, That the executive director may permit bids by electronic
transmission be accepted in lieu of sealed bids. Bids shall be solicited by
public notice. The notice shall be published as a Class II legal advertisement
in all participating counties in compliance with the provisions of article
three, chapter fifty-nine of this code and by such other means as the executive
director deems appropriate. The notice shall state the general character of the
work and 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. After all bids are received, the authority shall enter into a
written contract with the lowest responsible bidder, however, the authority may
reject any or all bids that fail to meet the specifications required by the
authority or that exceed the authority’s budget estimation for those
commodities or services. If the executive director determines in writing that
there is only one responsive and responsible bidder, and that there has been
sufficient public notice to attract competitive bids, he or she may negotiate
the price for a noncompetitive award or the specifications for a noncompetitive
award based solely on the original purpose of the solicitation.
(c) For
any contract that exceeds $25,000 in total cost, the authority shall require
the vendors to post a bond, with form and surety to be approved by the
authority, in an amount equal to at least fifty percent of the contract price
conditioned upon faithful performance and completion of the contract.
(d) The
bidding requirements specified in this section do not apply to any leases for
real property upon which the authority makes improvements for public access to
the recreation area, information distribution and welcome centers. This
exemption does not apply to leases for offices, vehicle and heavy equipment
storage or administrative facilities.
(e) Any
person who violates a provision of this section is guilty of a misdemeanor and,
upon conviction thereof, shall be confined in jail not less than ten days nor
more than one year, or fined not less than $10 nor more than $1,000, or both
confined and fined.
§20-14A-10.
Conflicts of interest prohibiting certain contracts.
(a) No
contract, change order to a prior contract, or renewal of any contract may be
awarded or entered into by the authority when: (1) The vendor or prospective
vendor is a member of the board or an employee of the authority; (2) the vendor
or prospective vendor is a spouse, sibling, child or parent of a member of the
board or an employee of the authority; or (3)
a member of the board or employee of the authority, or a spouse,
sibling, child or parent of a member of the board or an employee of the
authority, has an ownership interest of greater than five percent in the
company of the vendor or prospective vendor.
(b) No
contract, change order to a prior contract or renewal of any contract may be
awarded or entered by the authority when: (1) The vendor or prospective vendor
is a member of the West Virginia Legislature, or a spouse, sibling, child or
parent of a member of the Legislature; or (2) a member of the Legislature, or a
spouse, sibling, child or parent of a member of the Legislature, has an
ownership interest of greater than five percent in the company of the vendor or
prospective vendor.
(c) All
responses to bid solicitations, requests for quotation, requests for proposal,
contracts, change orders and contract renewals with the authority submitted or
approved under the provisions of this article shall include an affidavit that
the vendor or prospective vendor is not in violation of this section.
(d) Any
person who violates a provision of this section is guilty of a misdemeanor and,
upon conviction thereof, shall be confined in jail not less than ten days nor
more than one year, or fined not less than $10 nor more than $1,000, or both
confined and fined.
§20-14A-11.
Civil remedies for unlawful purchasing and contracts.
The
county commission of any participating county may challenge the validity of any
contract or purchase entered, solicited or proposed by the authority in
violation of this article by seeking declaratory or injunctive relief in the
circuit court of the county of the challenging party. If the court finds by a
preponderance of evidence that the provisions of this article have been
violated, the court may declare the contract or purchase to be void and may
grant any injunctive relief necessary to correct the violations and protect the
funds of the authority as a joint development entity.
ARTICLE
15. ATV, UTV AND MOTORCYCLE RESPONSIBILITY ACT.
§20-15-1.
Legislative findings.
The West
Virginia Legislature finds that trail-oriented recreation for all-terrain
and off-highway recreational vehicle enthusiasts offered by the
Hatfield-McCoy Regional Recreation Authority and other regional recreation
authorities formed pursuant to article fourteen-a of this chapter,
significantly contributes to the economy of West Virginia and is enjoyed by a
large and growing number of residents and nonresidents alike. Since it is
recognized that there are inherent risks in the operation of such
off-highway recreational vehicles which should be understood by each
operator and which cannot be eliminated by the Hatfield - McCoy Regional
Recreation Authority regional recreation authorities, or its and
their authorized outfitters or licensees, it is the purpose of this article
to define the areas of responsibility and affirmative acts which authorized
outfitters must perform or risk being liable for loss, damage or injury
suffered by participants and to define the risk which the participants
expressly assume and for which there can be no recovery.
§20-15-2.
Definitions.
The terms
in this article have the following meaning, unless the context clearly requires
a different meaning:
(1) “All-terrain
vehicle” or “ATV” means any motor vehicle designed for off-highway use and
designed to travel on not less than three low-pressure tires, having a seat
designed to be straddled by the operator and handlebars for steering control
and intended by the manufacturer to be used by a single operator or by an
operator and no more than one passenger;
(2) “Authorized
outfitter” or “licensee” means a commercial outfitter, which is a person,
partnership, limited liability company (LLC), corporation, other organization,
or any combination thereof, licensed by the Hatfield-McCoy Regional Recreation
Authority, or other regional recreation authorities, who operates from
any temporary or permanent camp, private or public lodge, or private home, who
provides guided tours or the rental of all-terrain vehicles, utility-terrain
vehicles or motorcycles for use on assigned lands for monetary profit or gain;
(3) “Low-pressure
tire” means every tire in which twenty pounds per square inch or less of
compressed air is designed to support the load;
(4) “Motorcycle”
means any motor vehicle manufactured with no more than two wheels and having a
seat or saddle for the use of the operator;
(5) “Participant”
means any person using the land, trails and facilities of the Hatfield-McCoy
Regional Recreation Authority and other regional recreation authorities;
“Regional recreational authority” means the
Hatfield-McCoy Regional Recreation Authority or any regional recreation
authority established and organized pursuant to the provisions of article
fourteen-a of this chapter; and
(6)
“Utility-terrain vehicle” or “UTV” means any motor vehicle with four or more
low-pressure tires designed for off-highway use, having bench or bucket seating
for each occupant and a steering wheel for control.
§20-15-3.
Scope.
This
article shall only apply to the Hatfield-McCoy Regional Recreation Authority, other
regional recreation authorities and their authorized outfitters or
licensees and any participant as defined in section two of this article.
(a) Every
authorized outfitter or licensee shall:
(1) Mark
for identification purposes all equipment and vehicles used in the business;
(2)
Maintain all equipment and vehicles used in the business in such condition that
the equipment and vehicles are safe to operate or use as intended and
recommended by the manufacturer;
(3)
Provide facilities, equipment and services conforming to safety and other
requirements established by the rules promulgated established by
the Hatfield-McCoy Regional Recreation Authority regional recreation
authorities;
(4)
Provide facilities, equipment and services as advertised or as agreed to by the
authorized outfitter or licensee and the participant;
(5)
Provide protective helmets which are size appropriate and which meet the
current performance specifications established by the American National
Standards Institute standard, z 90.1, the United States Department of
Transportation Federal Motor Vehicle Safety Standard no. 218 or Snell safety
standards for protective headgear for vehicle users as defined by subdivision
(5), subsection (a), section one, article one, chapter seventeen-f of this
code, to all persons using all-terrain vehicles, utility-terrain vehicles or
motorcycles;
(6)
Provide all-terrain vehicles or motorcycles which are age and size appropriate
as recommended by the manufacturer;
(7) Make
reasonable and prudent efforts to ensure that participants utilizing the
facilities, equipment or services of the authorized outfitter or licensee have
received the safety training required by the provisions of the legislative
rule rules for the use of the Hatfield-McCoy Regional Recreation
Area regional recreation areas;
(8) Make
certain that every guide offered to participants by the authorized outfitter or
licensee has a current standard first aid training certificate and CPR certificate
issued by the American Red Cross or its equivalent, and ATV safety training by
the Hatfield-McCoy Recreation Authority regional recreation authority
or its designee;
(9) Make
certain that employees carry first aid kits when acting as guides; and
(10) Make
known to any participant utilizing the facilities, equipment or services of the
authorized outfitter or licensee any dangerous condition as to trail lands,
facilities or equipment to be traversed or used which is known by the outfitter
or licensee.
(b) An
authorized outfitter or licensee may not rent or lease an all-terrain vehicle,
utility-terrain vehicle or motorcycle to a person under the age of eighteen
years or allow any owner-operated all-terrain vehicle, utility-terrain vehicle
or motorcycle on any guided tour when operated by any person under the age of
eighteen years without first obtaining a written statement, signed by the
minor’s parent or guardian certifying that:
(1) Any
machine to be operated by the minor or his or her parent or guardian is of a
model that is recommended by the manufacturer as appropriate to the minor’s age
and size;
(2) All
rules governing the use of the vehicle and the Hatfield-McCoy Recreation
Area regional recreation area have been explained to the minor in
sufficient detail to enable the minor to abide by the rules; and
(3) Any
minor under the age of sixteen will remain under the supervision of and the
sight of the parent or guardian at all times.
(c) An
authorized outfitter or licensee may not rent or lease a utility-terrain
vehicle to any person who is not at least sixteen years of age and in
possession of a valid driver’s license.
(d) An
authorized outfitter or licensee shall provide a participant utilizing the
facilities, equipment or services of the authorized outfitter or licensee with
written notification of his or her duties as prescribed in section five of this
article. The participant shall sign the notification prior to using the
equipment. The signed notification, or an electronically stored copy thereof,
shall be kept on file by the outfitter or licensee for not less than five
years.
(a) All
participants:
(1) Shall
comply with any requirements established by law, including those in section
one, article one, chapter seventeen-f of this code, which defines those acts
prohibited by operators of all-terrain vehicles;
(2) Shall
comply with the rules or regulations established for use of the Hatfield-McCoy
Recreation Area regional recreation area;
(3) Shall,
as to the Hatfield-McCoy Regional Recreation Authority or other regional
recreation authority, or to any recreation area landowner, lessor,
authorized outfitter or licensee, expressly assume the risk of and legal
responsibility for any injury, loss or damage to person or property which
results from participation in operating an all-terrain vehicle, utility-terrain
vehicle or motorcycle, and caused by any of the following:
(A)
Variations in terrain, slope or angle of terrain;
(B)
Surface or subsurface conditions, including rocks, trees or other forms of
forest growth or debris;
(C)
Collisions with signs, markers, width restrictors, culverts, bridges, pipes,
equipment, vehicles or any other objects or fixtures used in trail management,
maintenance, construction or development;
(D)
Collisions with signs, markers, pipes, equipment, vehicles or any component
thereof used in natural resource maintenance, development or extraction;
(E)
Collisions with electrical transmission poles, towers, lines, guy wires or any
component thereof;
(4) Shall
obey all rules or instructions announced by the Hatfield-McCoy Regional
Recreation Authority regional recreation authority, authorized
outfitter or licensee with regard to the operation of the all-terrain vehicle
or motorcycle he or she is operating; and
(5) Shall
wear all safety equipment provided by the authorized outfitter or licensee, or
which might otherwise be required by law.
(b) Each
participant shall have the sole individual responsibility for:
(1)
Knowing the range of his or her own ability to negotiate any slope or trail;
(2)
Operating the ATV, UTV or motorcycle within the limits of the participant’s own
ability;
(3)
Maintaining reasonable control of speed and course at all times;
(4)
Heeding all posted warnings;
(5)
Operating only on trails designated by the Hatfield-McCoy Regional Recreation
Authority; and
(6)
Refraining from acting in a manner which a reasonable person would believe to
be likely to cause or contribute to the injury of any person.
(c) If,
while riding an ATV, UTV or motorcycle, any participant collides with any
object or person, the responsibility for the collision shall be solely that of
the participant or participants involved and not that of the Hatfield-McCoy
Regional Recreation Authority, other regional recreation authority, any
recreation area landowner, lessor, authorized outfitter or licensee unless the
Hatfield-McCoy Regional Recreation Authority, other regional recreation
authority, recreation area landowner, lessor, authorized outfitter or
licensee or their agent caused the collision in a tortious manner.
(d) After
an accident, a participant may not leave the area where the accident took place
without:
(1)
Leaving personal identification, including his or her name and address;
(2) Notifying
the proper authorities; and
(3)
Obtaining assistance when he or she knows or reasonably should know that any
other person involved in the accident is in need of medical or other
assistance.
(e) Where
a participant is a lawful passenger, that participant may not distract or
perform any act which might interfere with the safe operation of the
all-terrain vehicle, utility-terrain vehicle or motorcycle of which he or she
is a passenger.
(f) Any
person under the age of sixteen years shall remain under the direct supervision
and within sight of a parent or guardian, both of whom must otherwise comply
with state or federal laws and any rules or regulations promulgated thereunder.
(g) A
participant may not make any alterations or tamper with the all-terrain
vehicle, utility-terrain vehicle or motorcycle he or she is operating, or in
which he or she is a passenger, in any a way which that
would interfere with the continued safe operation of that the
machine.
NOTE: The purpose of this bill is to create a new system for
three or more contiguous counties to create a regional recreation authority for
off- highway vehicle trail riding and for other recreational purposes.
Strike-throughs indicate language that would be stricken from
a heading or the present law and underscoring indicates new language that would
be added.
