2005 Committee Substitute for SB0577CTS

SENATE CORPORATIONS AND TRANSPORTATION COMMITTEE SUBSTITUTE FOR

SENATE BILL 577

47th legislature - STATE OF NEW MEXICO - first session, 2005

AN ACT

RELATING TO LOCAL GOVERNMENTS; ENACTING THE MUNICIPAL CULTURAL AND CONVENTION COMPLEX FINANCING ACT; AUTHORIZING CERTAIN LOCAL GOVERNMENTAL ENTITIES TO IMPOSE A DAILY FEE ON THE USE OF LODGING FACILITIES; AUTHORIZING QUALIFIED MUNICIPALITIES TO ISSUE BONDS; PROVIDING PENALTIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the "Municipal Cultural and Convention Complex Financing Act".

Section 2. DEFINITIONS.--As used in the Municipal Cultural and Convention Complex Financing Act:

A. "additional municipality" means an incorporated municipality, not a qualified municipality, that is authorized to impose municipal cultural and convention complex fees pursuant to the Municipal Cultural and Convention Complex Financing Act;

B. "local governmental entity" means a qualified municipality, a county or an additional municipality authorized by the Municipal Cultural and Convention Complex Financing Act to impose municipal cultural and convention complex fees;

C. "lodging facility" means a hotel, motel or motor hotel, a bed and breakfast facility, an inn, a resort or other facility offering rooms for payment of rent or other consideration;

D. "municipal cultural and convention complex fee" means the fee imposed by a local government entity pursuant to the Municipal Cultural and Convention Complex Financing Act on vendees for the use of lodging facilities;

E. "qualified municipality" means an incorporated municipality that has a population of more than one thousand but less than one thousand one hundred, according to the most recent federal decennial census, and located in a class B county with a population greater than eleven thousand but less than fifteen thousand, according to the most recent federal decennial census;

F. "room" means a unit of a lodging facility, such as a hotel room;

G. "vendee" means a person who rents or pays consideration to a vendor for use of a room; and

H. "vendor" means a person or his agent who furnishes rooms for occupancy for consideration.

Section 3. AUTHORIZED LOCAL GOVERNMENTAL ENTITIES.--The following local governmental entities are authorized to impose municipal cultural and convention complex fees:

A. a qualified municipality if the governing body of the qualified municipality has enacted an ordinance to impose a municipal cultural and convention complex fee; B. a county in which a qualified municipality is located, provided that:

(1) a qualified municipality within the county has enacted an ordinance to impose a municipal cultural and convention complex fee;

(2) the board of county commissioners of the county has enacted an ordinance to impose a municipal cultural and convention complex fee;

(3) the qualified municipality and the county have entered into a joint powers agreement pursuant to the Joint Powers Agreements Act to collect the revenue from the municipal cultural and convention complex fee and to expend the revenue as required in the Municipal Cultural and Convention Complex Financing Act; and

(4) the fee shall only apply to lodging facilities located within twenty miles of the corporate limits of the qualified municipality; and

C. an additional municipality located within twenty miles of the corporate limits of a qualified municipality in the same county in which that qualified municipality is located, provided that:

(1) the qualified municipality has enacted an ordinance imposing a municipal cultural and convention complex fee;

(2) the additional municipality has enacted an ordinance imposing a municipal cultural and convention complex fee; and

(3) the qualified municipality and the additional municipality have entered into a joint powers agreement pursuant to the Joint Powers Agreements Act to collect the revenue from the municipal cultural and convention complex fee and to expend the revenue as required by the Municipal Cultural and Convention Complex Financing Act.

Section 4. IMPOSITION OF MUNICIPAL CULTURAL AND CONVENTION COMPLEX FEE--USE OF PROCEEDS.--

A. A local governmental entity may impose by ordinance a fee on the use of a room within a lodging facility within the local governmental entity. The fee may be referred to as the "municipal cultural and convention complex fee". The amount of the municipal cultural and convention complex fee shall not exceed two dollars fifty cents ($2.50) per room for each day the room is occupied by a vendee.

B. A municipal cultural and convention complex fee imposed pursuant to this section shall be reviewed by the governing body of the local governmental entity annually. The local governmental entity shall adjust the amount of the municipal cultural and convention complex fee by ordinance to result in an amount of revenue equivalent to the following percentage of the actual operating and maintenance costs for the preceding fiscal year of the municipal cultural and convention complex to which the revenue from the municipal cultural and convention complex fee is dedicated pursuant to Subsection E of this section:

(1) through fiscal year 2026, one hundred twenty percent; and

(2) for fiscal year 2027 and subsequent fiscal years, a percentage that is two percent less than the prior fiscal year.

C. If municipal cultural and convention complex fees imposed are subject to the provisions of a joint powers agreement between two local governmental entities, the local governmental entities that are parties to the joint powers agreement shall jointly determine changes in the rate of municipal cultural and convention complex fees to be imposed.

D. A qualified municipality shall not decrease the municipal cultural and convention complex fee while revenue bonds to which the revenue of the municipal cultural and convention complex fees is pledged remain outstanding.

E. A local governmental entity shall dedicate the revenue from the municipal cultural and convention complex fee as provided in this subsection at the time that the ordinance imposing the fee is enacted. A local governmental entity that is a party to a joint powers agreement regarding the imposition of a municipal cultural and convention complex fee shall enact an ordinance that includes the provisions stated in the joint powers agreement and limits the use of the revenue to the following:

(1) costs of acquisition of land for and the design, construction, equipping, furnishing, landscaping, operation and maintenance of a municipal cultural and convention complex located within the qualified municipality;

(2) payments of principal, interest or prior redemption premiums due in connection with and any other charges pertaining to revenue bonds authorized by the Municipal Cultural and Convention Complex Financing Act; and

(3) costs of collecting and otherwise administering the municipal cultural and convention complex fee; provided that administration costs shall not be paid until all required payments on the revenue bonds issued pursuant to the Municipal Cultural and Convention Complex Financing Act are made and that no more than five percent of the revenue collected in any fiscal year shall be used to pay administration costs.

Section 5. EXEMPTIONS.--The municipal cultural and convention complex fee shall not apply:

A. if a vendee:

(1) has been a permanent resident of the lodging facility for a period of at least thirty consecutive days; or

(2) enters into or has entered into a written agreement for a room at a lodging facility for a period of at least thirty consecutive days;

B. if the consideration paid by a vendee is less than two dollars ($2.00) a day;

C. to rooms at institutions of the federal government, the state or any political subdivision thereof;

D. to rooms at religious, charitable, educational or philanthropic institutions, including rooms at summer camps operated by such institutions;

E. to clinics, hospitals or other medical facilities;

F. to privately owned and operated convalescent homes or homes for the aged, infirm, indigent or chronically ill; or

G. if the vendor does not offer at least three rooms at its lodging facility, provided that the municipal cultural and convention complex fee shall be imposed on the lodging facilities of a vendor that owns three or more lodging facilities within local governmental entities that have imposed a municipal cultural and convention complex fee, regardless of the number of rooms available for occupancy.

Section 6. COLLECTION OF MUNICIPAL CULTURAL AND CONVENTION COMPLEX FEE.--

A. A vendor providing rooms in a local governmental entity that has imposed a municipal cultural and convention complex fee shall collect the proceeds on behalf of the local governmental entity and shall act as a trustee for the fees collected.

B. The municipal cultural and convention complex fee shall be collected from vendees in accordance with the ordinance imposing the municipal cultural and convention complex fee and shall be accounted for separately from the rent fixed by the vendor for rooms.

Section 7. AUDIT OF VENDORS.--A local governmental entity assessing a municipal cultural and convention complex fee shall include verification of the collection of the correct municipal cultural and convention complex fee in any audit of a vendor conducted pursuant to Section 3-38-17.1 NMSA 1978.

Section 8. FINANCIAL REPORTING.--The chief executive officer of a local governmental entity assessing a municipal cultural and convention complex fee shall report to the local government division of the department of finance and administration on a quarterly basis any expenditure of municipal cultural and convention complex fee funds.

Section 9. ENFORCEMENT.--

A. An action to enforce the Municipal Cultural and Convention Complex Financing Act may be brought by:

(1) the attorney general or the district attorney in the county of jurisdiction; or

(2) a vendor who is collecting the proceeds of a municipal cultural and convention complex fee in the county of jurisdiction.

B. A district court may issue a writ of mandamus or order an injunction or other appropriate remedy to enforce the provisions of the Municipal Cultural and Convention Complex Financing Act.

C. The court shall award costs and reasonable attorney fees to the prevailing party in a court action to enforce the provisions of the Municipal Cultural and Convention Complex Financing Act.

Section 10. COLLECTION OF DELINQUENCIES.--

A. A local governmental entity shall by ordinance provide that a vendor is liable for the payment of the proceeds of municipal cultural and convention complex fees that the vendor failed to remit to the local governmental entity. Failure of the vendor to collect the fee is not cause for the local governmental entity to forgive municipal cultural and convention complex fees due and owed by the vendor. The ordinance shall provide for a civil penalty for each occurrence of failure to remit municipal cultural and convention complex fees in an amount equal to the greater of ten percent of the amount that was not duly remitted to the local governmental entity or one hundred dollars ($100).

B. The local governmental entity may bring an action in the district court of the judicial district in which the local governmental entity is located for collection of amounts due, including penalties on the amounts due on the unpaid principal at a rate not exceeding one percent per month, the costs of collection and reasonable attorney fees incurred in connection with the court action to collect the unpaid municipal cultural and convention complex fees.

Section 11. LIEN FOR MUNICIPAL CULTURAL AND CONVENTION COMPLEX FEE--PAYMENT--CERTIFICATE OF LIEN.--

A. The municipal cultural and convention complex fee assessed by a local governmental entity constitutes a lien in favor of that local governmental entity upon the personal and real property of the vendor providing lodging facilities in that local governmental entity. The lien may be enforced as provided in Sections 3-36-1 through 3-36-7 NMSA 1978. Priority of the lien shall be determined from the date of filing.

B. Under process or order of court, a person shall not sell the property of a vendor without first ascertaining from the clerk or treasurer of the local governmental entity in which the vendor is located the amount of any municipal cultural and convention complex fees due. Municipal cultural and convention complex fees due the local governmental entity shall be paid from the proceeds of the sale before payment is made to the judgment creditor or any other person with a claim on the sale proceeds.

C. The clerk or treasurer of the local governmental entity shall furnish a certificate of lien to a person applying for a certificate showing the amount of all liens in the records of the local governmental entity against any vendor pursuant to the Municipal Cultural and Convention Complex Financing Act.

Section 12. ORDINANCE REQUIREMENTS.--The ordinance imposing a municipal cultural and convention complex fee or any ordinance amending the imposition of a municipal cultural and convention complex fee shall:

A. state:

(1) the rate of the municipal cultural and convention complex fee to be imposed;

(2) the times, place and method for the payment of the municipal cultural and convention complex fee proceeds to the local governmental entity;

(3) the accounts and other records to be maintained in connection with the municipal cultural and convention complex fee;

(4) a procedure for making refunds and resolving disputes relating to the municipal cultural and convention complex fee;

(5) the procedure for preservation and destruction of records and for their inspection and investigation;

(6) vendor audit requirements;

(7) applicable civil and criminal penalties; and

(8) a procedure of liens, distraint and sales to satisfy those liens; and

B. provide other rights, privileges, powers, immunities and other details relating to the collection of the municipal cultural and convention complex fee and the remittance of the proceeds thereof to the local governmental entity.

Section 13. REVENUE BONDS.--

A. Revenue bonds may be issued at any time by a qualified municipality that has imposed a municipal cultural and convention complex fee to defray wholly or in part the costs authorized in Paragraph (1) of Subsection E of Section 4 of the Municipal Cultural and Convention Complex Financing Act. The revenue bonds may be payable from and payment may be secured by a pledge of and lien on the revenue derived from:

(1) the proceeds of the municipal cultural and convention complex fee of the qualified municipality and the proceeds of the municipal cultural and convention complex fee of a local governmental entity that has entered into a joint powers agreement with the qualified municipality to impose a municipal cultural and convention complex fee, the proceeds of which shall be dedicated to the payment of revenue bonds for a municipal cultural and convention complex in the qualified municipality;

(2) a municipal cultural and convention complex to which the bonds pertain, after provision is made for the payment of the operation and maintenance expenses of the municipal cultural and convention complex;

(3) any other legal available revenues of the qualified municipality; or

(4) a combination of revenues from the sources designated in Paragraphs (1) through (3) of this subsection.

B. The bonds shall bear interest at a rate or rates as authorized in the Public Securities Act, and the first interest payment may be for any period authorized in the Public Securities Act.

C. Except as otherwise provided in the Municipal Cultural and Convention Complex Financing Act, revenue bonds authorized in that act shall be issued in accordance with the provisions of Sections 3-31-2 through 3-31-6 NMSA 1978.

Section 14. REFUNDING BONDS.--

A. A qualified municipality having issued revenue bonds as authorized in the Municipal Cultural and Convention Complex Financing Act may issue refunding revenue bonds payable from pledged revenues authorized for the payment of revenue bonds at the time of the refunding or at the time of the issuance of the bonds being refunded as the governing body of the qualified municipality may determine, notwithstanding that the revenue sources or the pledge of such revenues or both are thereby modified.

B. Refunding bonds may be issued for the purpose of refinancing, paying and discharging all or a part of outstanding bonds of any one or more outstanding bond issues:

(1) for the acceleration, deceleration or other modification of the payment of the obligations, including any capitalization of any interest in arrears or about to become due for any period not exceeding one year from the date of the refunding bonds;

(2) for the purpose of reducing interest costs or effecting other economies;

(3) for the purpose of modifying or eliminating restrictive contractual limitations pertaining to the issuance of additional bonds or otherwise concerning the outstanding bonds; or

(4) for any combination of the purposes specified in Paragraphs (1) through (3) of this subsection.

C. The interest on a bond refunded shall not be increased to a rate in excess of the rate authorized in the Public Securities Act and shall be paid as authorized in that act.

D. Refunding bonds for any other purpose permitted by the Municipal Cultural and Convention Complex Financing Act may be issued separately or issued in combination in one series or more.

E. Except as otherwise provided in the Municipal Cultural and Convention Complex Financing Act, refunding bonds authorized in that act shall be issued in accordance with the provisions of Sections 3-31-10 and 3-31-11 NMSA 1978.

Section 15. PENALTIES.--A local governmental entity shall by ordinance provide for penalties by creating a misdemeanor and imposing a fine of not more than five hundred dollars ($500) or imprisonment for not more than ninety days or both for a violation by any person of the provisions of the municipal cultural and convention complex fee ordinance for a failure to pay the fee or to remit the proceeds thereof to the local governmental entity.

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