House Bill text for HB0400

HOUSE BILL 400

48th legislature - STATE OF NEW MEXICO - second session, 2008

INTRODUCED BY

Daniel P. Silva

AN ACT

RELATING TO TRANSPORTATION; ENACTING THE COMMUTER RAIL TRANSIT DISTRICT ACT; CREATING THE COMMUTER RAIL TRANSIT DISTRICT; PROVIDING FOR POWERS AND DUTIES; AUTHORIZING BOND ISSUANCE; IMPOSING PENALTIES; AUTHORIZING COMMUTER RAIL TRANSIT DISTRICT POLICE OFFICERS; PROVIDING FOR THE IMPOSITION OF A COUNTY COMMUTER RAIL GROSS RECEIPTS TAX; DECLARING AN EMERGENCY.

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

Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 14 of this act may be cited as the "Commuter Rail Transit District Act".

Section 2. [NEW MATERIAL] DEFINITIONS.--As used in the Commuter Rail Transit District Act:

A. "board" means the board of directors of the commuter rail transit district;

B. "commuter rail system" means a New Mexico state-owned system that provides railroad transportation for commuters and other rail passengers between Belen and Santa Fe. "Commuter rail system" includes all real and personal property, tracks, rights of way, easements, locomotives, cars, equipment, tools and facilities that are owned, purchased, leased, licensed, acquired or donated by the district, either alone or in cooperation with other governmental entities, corporations, partnerships, individuals, firms or other public or private entities;

C. "district" means the commuter rail transit district created by the Commuter Rail Transit District Act;

D. "New Mexico rail runner express" means the commuter rail system in existence at the time the commuter rail transit district is created; and

E. "revenue" means the rates, fees and charges collected by the district from the operation of the commuter rail system, distributions from the commuter rail transit district gross receipts tax and all other appropriations or funds received by the district.

Section 3. [NEW MATERIAL] COMMUTER RAIL TRANSIT DISTRICT CREATED.--

A. The "commuter rail transit district" is created coextensive with the boundaries of Bernalillo county, Sandoval county, Santa Fe county and Valencia county.

B. The district is a public body, politic and corporate, separate and apart from the state, constituting a governmental instrumentality for the performance of essential governmental functions within the district.

Section 4. [NEW MATERIAL] BOARD.--

A. All powers, privileges and duties vested in or imposed on the district shall be exercised and performed by the board.

B. The board shall be composed of seven voting members and one nonvoting member as follows:

(1) a county commissioner of Bernalillo county appointed by the chair of the board of county commissioners of Bernalillo county for a term of two years;

(2) a county commissioner of Sandoval county appointed by the chair of the board of county commissioners of Sandoval county for a term of two years;

(3) a county commissioner of Santa Fe county appointed by the chair of the board of county commissioners of Santa Fe county for a term of two years;

(4) a county commissioner of Valencia county appointed by the chair of the board of county commissioners of Valencia county for a term of two years;

(5) an elected official from the Albuquerque city government appointed by the mayor of Albuquerque for a term of two years, provided that the initial appointment shall be for a term of one year;

(6) an elected official from the Santa Fe city government appointed by the mayor of Santa Fe for a term of two years, provided that the initial appointment shall be for a term of one year;

(7) the lieutenant governor for the lieutenant governor's term of office; and

(8) a nonvoting member appointed by the governor for a term of three years from recommendations submitted by pueblos located within the district to represent the pueblos located within the district.

C. A vacancy occurring by other than expiration of term shall be filled in the same manner as the original appointment, but only for the unexpired term.

D. The lieutenant governor shall serve as the chair of the board.

E. The board shall:

(1) annually elect a member from among the voting members to serve as vice-chair of the board and such other officers as it deems necessary;

(2) promulgate and adhere to policies and procedures that govern its conduct and provide meaningful opportunities for public input; and

(3) fix the time and place of meetings and the method of providing notice of the meetings.

F. In addition to all other powers conferred by the Commuter Rail Transit District Act, the board may:

(1) adopt bylaws;

(2) adopt and use a seal;

(3) appoint, hire and retain employees, agents, engineers, attorneys, accountants, financial advisors, investment bankers and other consultants;

(4) prescribe, in accordance with the Procurement Code, methods for auditing and allowing or rejecting claims and demands for:

(a) the awarding of contracts for the construction of improvements, works or structures;

(b) the acquisition of equipment; and

(c) the performance or furnishing of labor, materials or supplies as may be required for carrying out the purposes of the Commuter Rail Transit District Act; and (5) appoint advisory committees as needed and define the duties of the committees.

G. In addition to any other scheduled meeting, the board shall meet at the call of the chair or whenever four voting members so request in writing. A majority of voting members then serving constitutes a quorum for the transaction of business, but the affirmative vote of at least four members is necessary for any action to be taken by the district.

H. The board may delegate the exercise of any executive, administrative and ministerial power to officers and employees of the district or to any officer or employee contracted by agreement to manage and administer the operations of the district; provided, however, that the mid-region council of governments shall serve as the manager and administrator of the operations of the district for a minimum of three years after the creation of the district.

I. The members of the board shall receive no compensation for their services except that they shall be

reimbursed for actual and necessary expenses at the same rate and on the same basis as provided for public officers in the Per Diem and Mileage Act.

J. The district is not subject to the supervision or control of any other board, bureau, commission, department or agency of the state, except as specifically provided in the Commuter Rail Transit District Act. No use of the terms "state agency" or "instrumentality" in any other law of the state shall be deemed to refer to the district unless the district is specifically referred to in the law.

K. The district is a governmental instrumentality for purposes of the Tort Claims Act.

Section 5. [NEW MATERIAL] DISTRICT--DUTIES--POWERS.--

A. The district shall:

(1) plan, design, construct, maintain, operate, manage, equip and supervise a commuter rail system within the district;

(2) make and execute agreements, contracts, leases or licenses and other instruments necessary or convenient between the district and the state, the department of transportation or any other department, agency or commission for the operation, maintenance, equipping and repair of the New Mexico rail runner express, including the equipment, tracks, facilities, stations and other real and personal property of the New Mexico rail runner express system within the district, as the agent, operator, lessee or licensee of the state, the department of transportation or any other department, agency or commission having jurisdiction or ownership of the New Mexico rail runner express system;

(3) finance, construct, operate and maintain a commuter rail system and provide commuter rail transportation services within the district between Belen and Santa Fe; (4) adopt, establish, collect and increase or decrease fares, fees, tolls, rates or charges for the use of property of the commuter rail system;

(5) establish and determine schedules and terms and conditions of operation of the commuter rail system;

(6) have perpetual existence;

(7) do any and all things necessary or proper to accomplish the purposes of the Commuter Rail Transit District Act;

(8) hire an executive director and such other employees or other agents as it deems necessary for the performance of its powers and duties, including consultants, financial advisors and legal advisors, and prescribe the powers and duties and fix the compensation of the employees and agents; provided, however, that the mid-region council of governments shall serve as manager and administrator of operations of the district for a minimum of three years after creation of the district. The executive director of the district shall direct affairs and business of the district, subject to the policies, control and direction of the district;

(9) maintain such records and accounts of revenues and expenditures as required by the state auditor. The state auditor or the state auditor's designee shall conduct an annual financial and legal compliance audit of the accounts of the authority and file copies with the governor and the legislature; and

(10) maintain administrative offices in the city of Albuquerque.

B. The district may:

(1) sue or be sued;

(2) make and execute agreements, contracts, rental agreements, leases, licenses and other instruments necessary or convenient in the exercise of its powers and functions with any person or governmental agency;

(3) enter into contractual agreements, leases, licenses and other instruments with respect to the operation and maintenance of a commuter rail system within the district upon the terms and conditions the board considers advisable;

(4) enter into agreements and contracts with any bureau, department or agency of the United States government or with any state government, political subdivision, local public body or transit authority dealing with or concerning the planning, design, construction, maintenance, operation, management, equipping, acquisition or supervision of a commuter rail system;

(5) lease, license, grant or sell rights of way, easements or other property interests to governmental entities, corporations, partnerships, individuals or other public or private entities in any property of the district for reasonable consideration;

(6) utilize the services of executive departments, agencies and commissions of the state upon mutually agreeable terms and conditions;

(7) exercise the power of eminent domain for acquiring property, rights of way and interests in property for the uses and purposes of operating and maintaining a commuter rail system that are declared to be public uses and purposes;

(8) purchase, trade, exchange, acquire, buy, sell, lease, lease with option to purchase, dispose of and encumber real or personal property and interests therein, including easements, licenses and rights of way;

(9) acquire real or personal property by exchange, donation, gift, bequest, devise or eminent domain;

(10) negotiate and contract for the acquisition of property from any person, governmental entity, Indian tribe or Indian pueblo, political subdivision, local governmental bodies or the state or its departments or commissions for the construction and operation of a commuter rail system;

(11) receive by gift, grant, donation or otherwise, any sum of money, aid or assistance from the United States, the state of New Mexico or any other state, any political subdivision or any other public or private entity;

(12) use public rights of way and, with the permission of the owner, relocate or alter the construction of streets, highways, other public ways, electric and telephone lines and properties, pipelines, conduits and other properties, whether publicly or privately owned, if deemed necessary by the authority in the construction, reconstruction, repair, maintenance and operation of the commuter rail system. Liability for any damage that may occur to the property shall be borne by the district;

(13) provide connecting transit services and connections to and from the commuter rail system within and without the district;

(14) promulgate rules regarding collection of fees, tolls, rates or charges for use of the commuter rail system; and

(15) enter into toll enforcement agreements with state and local law enforcement authorities.

C. The district is not subject to the supervision or control of any other board, bureau, commission, department or agency of the state, except as specifically provided in the Commuter Rail Transit District Act.

Section 6. [NEW MATERIAL] RATES--PENALTIES.--

A. The fees, tolls, rates or charges adopted or established by the board are not subject to regulation by the public regulation commission.

B. A person who fails to pay a fee, toll, rate or charge required for the privilege of traveling on or using property of the commuter rail system may be assessed a fine of not less than fifty dollars ($50.00) and not more than one hundred fifty dollars ($150). The magistrate or metropolitan court where the offense took place has jurisdiction over actions brought pursuant to this subsection.

Section 7. [NEW MATERIAL] AUTHORIZATION TO EMPLOY COMMUTER RAIL TRANSIT DISTRICT POLICE OFFICERS--POWERS AND DUTIES OF OFFICERS.--

A. The district may employ and assign duties of commuter rail transit district police officers for the district.

B. At all times while on duty, commuter rail transit district police officers shall carry commissions of office issued by the district. Commuter rail transit district police officers shall have the powers of peace officers on the New Mexico rail runner express and on all property, tracks, rights of way, easements, locomotives, cars and facilities owned, leased, licenced or operated by the commuter rail transit district. Within this territory, a commuter rail transit police officer may enforce all applicable laws, ordinances and regulations, but no arrest for violation of any law, ordinance or regulation is valid unless, at the time of arrest, the commuter rail transit police officer is wearing:

(1) a distinctive badge bearing the name of the district issued by the district; or

(2) a distinctive uniform prescribed and issued by the district.

C. A person employed by the district as a commuter rail transit district police officer shall fulfill the requirements for certification in Subsection A of Section 29-7-6 NMSA 1978 within one year of the date of first employment.

Section 8. [NEW MATERIAL] BONDS.--

A. The district may issue bonds for the purpose of financing the purchase, construction, renovation, equipping or furnishing a commuter rail system. The district shall issue the bonds pursuant to resolution of the board, and the bonds shall be payable solely out of all or a specified portion of the revenues as designated by the board. Proceeds of the bonds may be used to pay expenses incurred in the preparation, issuance and sale of the bonds.

B. As provided in the resolution of the board under which the bonds are authorized to be issued, the bonds shall:

(1) be executed and delivered by the district;

(2) be in a form and denomination and include terms and maturities;

(3) be subject to optional or mandatory redemption prior to maturity with or without a premium;

(4) be in fully registered form or bearer form registrable as to principal or interest or both;

(5) bear conversion privileges;

(6) be payable in installments and at a time not exceeding forty years from the date of issuance;

(7) be payable within or without the state;

(8) have the principal paid in yearly amounts beginning not later than two years from the date of issuance of the bonds;

(9) be subject to purchase at the option of the holder or the district;

(10) be executed by the officers of the district, including the use of one or more facsimile signatures so long as at least one manual signature appears on the bonds, which signatures may be either of an officer of the district or of an agent authenticating the same;

(11) be in a form of coupon bonds that have attached interest coupons bearing a manual or facsimile signature of an officer of the district; and

(12) be sold at a net effective interest rate not exceeding the maximum net effective interest rate permitted by the Public Securities Act.

C. Bonds may be sold at public or private sale at a price, in a manner and at a time determined by the board, and the board may pay all fees, expenses and commissions that it deems necessary or advantageous in connection with the sale of the bonds. The power to fix the date of sale of the bonds, receive bids or proposals, award and sell bonds, fix interest rates and take all other action necessary to sell and deliver the bonds may be delegated to an officer or agent of the district. Outstanding bonds may be refunded by the district as provided in the Public Securities Act.

D. A resolution authorizing the issuance of bonds may pledge all or a portion of the revenues of the district, may contain a provision for protecting and enforcing the rights and remedies of holders of the bonds and may contain provisions that the board deems appropriate for the security of the holder of the bonds.

E. A pledge of revenues or property made by the district shall be valid and binding from the time the pledge is made. The revenues or property so pledged shall immediately be subject to the lien of the pledge without physical delivery or further act, and the lien of the pledge shall be valid and binding against all parties having claims in tort or contract or otherwise against the authority, irrespective of whether the claiming party has notice of the lien.

F. Neither the directors of the board, employees of the district or a person executing the bonds shall be liable personally on the bonds or subject to personal liability or accountability by reason of the issuance of the bonds.

G. The district may purchase its bonds out of available funds and may hold, pledge, cancel or resell the bonds subject to and in accordance with agreements with the holders.

H. Bonds shall be payable solely from pledgeable revenue and shall not constitute an indebtedness or general obligation of the district, the state or political subdivisions of the state.

I. The form and terms of bonds shall be approved by the state board of finance before issuance of the bonds.

Section 9. [NEW MATERIAL] AGREEMENT OF THE STATE NOT TO LIMIT OR ALTER RIGHTS OF OBLIGEES.--The state pledges and agrees with the holders of bonds issued under the Commuter Rail Transit District Act and with those parties who enter into contracts with the district that the state will not impair the right vested in the district or the rights or obligations of a person with which the district contracts to fulfill the terms of an agreement made pursuant to the Commuter Rail Transit District Act. The state further agrees that it will not impair the rights or remedies of the holders of the bonds of the district until the bonds have been paid or until adequate provision for payment has been made. The district may include this provision and undertaking for the state in bonds.

Section 10. [NEW MATERIAL] INVESTMENTS.--The board may invest or deposit funds in accordance with the prudent investor rule set forth in the Uniform Prudent Investor Act. The board may employ investment management services to invest the funds and may pay reasonable compensation for investment management services from the assets of the applicable funds. The board shall keep accurate and complete records and accounts concerning the investment portfolio.

Section 11. [NEW MATERIAL] EXEMPTION FROM TAXATION.--The income or other revenue of the district, all properties at any time owned by the district, all bonds issued by the district and the income from the bonds issued by the district are exempt from taxation in the state.

Section 12. [NEW MATERIAL] GOVERNMENTAL COOPERATION.--The state, or a department, commission or agency of the state, a political subdivision, municipality or a county may:

A. sell, lease, loan, donate, grant, convey, assign, transfer and otherwise dispose to the district real or personal property or interests therein, including rights of way, track, cars, locomotives and other rail equipment and facilities; or

B. enter into agreements for the joint financing, construction, operation or maintenance of a commuter rail system in connection with the financing, construction, operation or maintenance of a commuter rail system or a regional transit system under the Regional Transit District Act.

Section 13. [NEW MATERIAL] NOTICE--OPPORTUNITY FOR COMMENT.--At least ten days prior to a regularly scheduled meeting, the board shall make available to the public written or electronic notice of the time and agenda of the meeting. The board shall designate during each meeting a public comment period and shall offer the public an opportunity to comment.

Section 14. [NEW MATERIAL] TAXATION.--The district has no direct taxation authority.

Section 15. A new section of the County Local Option Gross Receipts Taxes Act is enacted to read:

"[NEW MATERIAL] COUNTY COMMUTER RAIL GROSS RECEIPTS TAX-- AUTHORITY TO IMPOSE--RATE--ELECTION REQUIRED.--

A. Within thirty days of a request by resolution of the board of directors of the commuter rail transit district, the governing body of each county that is within the commuter rail transit district shall impose by identical ordinances an excise tax at the rate of one-eighth of one percent of the gross receipts of any person engaging in business in the commuter rail transit district for the privilege of engaging in business. The tax may be referred to as the "county commuter rail gross receipts tax".

B. Each governing body, at the time of enacting an ordinance imposing the tax authorized in Subsection A of this section, shall dedicate the revenue for the purposes authorized by the Commuter Rail Transit District Act.

C. An ordinance imposing a county commuter rail gross receipt tax shall not go into effect until after a joint election is held by all counties within the commuter rail transit district, and a majority of the voters of the commuter rail transit district voting in the election votes in favor of imposing the tax. Each governing body shall adopt an ordinance calling for a joint election within seventy-five days of the date the resolution is adopted on the question of imposing the tax. The question shall be submitted to the voters of the commuter rail transit district as a separate question at the next general election or at a joint special election that is called for that purpose by each governing body before the next general election. A joint special election shall be called, conducted and canvassed substantially in the same manner as provided by law for general elections. If a majority of the voters in the commuter rail transit district voting on the question approves the ordinance imposing the county commuter rail gross receipts tax, the ordinance shall become effective in accordance with the provisions of the County Local Option Gross Receipts Taxes Act. If the question of imposing the county commuter rail gross receipts tax fails, the governing bodies shall not again propose the imposition of any increment of the tax for a period of one year from the date of the election.

D. The governing body of a county imposing a county commuter rail gross receipts tax shall transfer all proceeds from the tax to the commuter rail transit district for the purposes specified in the ordinance and in accordance with the provisions of the Commuter Rail Transit District Act."

Section 16. TEMPORARY PROVISIONS.--On July 1, 2008:

A. all real and personal property, personnel, contracts, leases, licenses, appropriations, money, records, user fees, equipment and supplies of the department of transportation that relate to the New Mexico rail runner express shall be transferred to the commuter rail transit district; and

B. all contracts of the department of transportation relating to the New Mexico rail runner express shall be binding on the commuter rail transit district.

Section 17. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

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