HOUSE BILL 461
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
Mimi Stewart
AN ACT
RELATING TO ENERGY EFFICIENCY; AMENDING THE ENERGY EFFICIENCY AND RENEWABLE ENERGY BONDING ACT TO EXTEND ITS PROVISIONS TO MUNICIPALITIES AND COUNTIES AND TO INCREASE THE MAXIMUM AMOUNT OF OUTSTANDING ENERGY EFFICIENCY BONDS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 6-21D-2 NMSA 1978 (being Laws 2005, Chapter 176, Section 2) is amended to read:
"6-21D-2. DEFINITIONS.--As used in the Energy Efficiency and Renewable Energy Bonding Act:
A. "authority" means the New Mexico finance authority;
B. "bonds" means energy efficiency bonds;
C. "department" means the energy, minerals and natural resources department;
D. "energy efficiency measure" means a modification or improvement to a building or complex of buildings that is designed to reduce energy consumption or operating costs or that provides a renewable energy source and may include:
(1) insulation of the building structure or systems within the building;
(2) storm windows or doors, caulking or weatherstripping, multiglazed windows or doors, heat-absorbing or heat-reflective glazed and coated window or door systems, additional glazing, reductions in glass area or other window and door system modifications that reduce energy consumption;
(3) automated or computerized energy control systems;
(4) heating, ventilating or air conditioning system modifications or replacements;
(5) replacement or modification of lighting fixtures to increase the energy efficiency of the lighting system;
(6) energy recovery systems;
(7) on-site photovoltaics, solar heating and cooling systems or other renewable energy systems; or
(8) cogeneration or combined heat and power systems that produce steam, chilled water or forms of energy such as heat, as well as electricity, for use primarily within a building or complex of buildings;
E. "fund" means the energy efficiency and renewable energy bonding fund;
F. "legally available gross receipts tax revenue" means revenue, distributed to a municipality pursuant to Section 7-1-6.4 NMSA 1978; transferred to a municipality pursuant to Section 7-1-6.12 NMSA 1978; or transferred to a county pursuant to Section 7-1-6.13 NMSA 1978, that is not:
(1) required by law to be expended for a purpose that is inconsistent with the installation of energy efficiency measures authorized by the Energy Efficiency and Renewable Energy Bonding Act; or
(2) otherwise pledged as debt service or other security for bonds or other debt obligations of the municipality or county;
G. "local government" means a county or an incorporated municipality;
H. "local government building" means a building, the title to which is held by a local government;
[F.] I. "school district" means a political subdivision of the state established for the administration of public schools, segregated geographically for taxation and bonding purposes and governed by the Public School Code;
[G.] J. "school district building" means a building, the title to which is held by a school district; and
[H.] K. "state building" means a building, the title to which is held by the state or an agency of the state."
SECTION 2. Section 6-21D-3 NMSA 1978 (being Laws 2005, Chapter 176, Section 3, as amended) is amended to read:
"6-21D-3. BUILDING ASSESSMENTS FOR ENERGY EFFICIENCY MEASURES.--
A. Upon the request of a state agency, a local government or a school district, the department may perform an energy efficiency assessment of a state, local government or school district building to identify the energy efficiency measures that can be installed and operated at a total price that is less than the energy cost savings realized. In addition, the assessment shall include a schedule for funding and installing the energy efficiency measures that will realize significant energy cost savings in the shortest time frame. The department shall develop the assessment of:
(1) state buildings, in conjunction with the property control division of the general services department, the staff architect of the division, the capitol buildings planning commission and other state agencies with control and management over buildings; [and]
(2) local government buildings, in conjunction with the local government division of the department of finance and administration and the affected local government; and
[(2)] (3) school district buildings, in conjunction with the public education department, the public school capital outlay council and the public school facilities authority.
B. State agencies, local governments and school districts shall cooperate with the department in the assessment performed pursuant to Subsection A of this section."
SECTION 3. Section 6-21D-4 NMSA 1978 (being Laws 2005, Chapter 176, Section 4, as amended) is amended to read:
"6-21D-4. CONTRACTS FOR THE INSTALLATION OF ENERGY EFFICIENCY MEASURES.--Pursuant to an energy efficiency assessment performed under Section 6-21D-3 NMSA 1978 and with the approval of the department, a state agency, local government or school district may install or enter into contracts for the installation of energy efficiency measures on the building identified in the assessment. An installation contract shall be entered into pursuant to the Procurement Code, except that the contract may be entered into for a term of up to ten years. The installation or contracts shall address provisions concerning payment schedules, monitoring, inspecting, measuring and warranties as are necessary to ensure that the energy efficiency measures will be installed and the energy cost savings realized in the manner most beneficial to the state; provided that bonds shall not be issued pursuant to the Energy Efficiency and Renewable Energy Bonding Act without a finding by the department that the energy cost savings realized from the energy efficiency measures will be greater than the debt service due on the bonds issued to finance the energy efficiency measures."
SECTION 4. Section 6-21D-5 NMSA 1978 (being Laws 2005, Chapter 176, Section 5) is amended to read:
"6-21D-5. ENERGY EFFICIENCY AND RENEWABLE ENERGY BONDING FUND--PLEDGE OF MONEY IN THE FUND.--
A. The "energy efficiency and renewable energy bonding fund" is created as a special fund within the authority. The fund shall be administered by the authority as a special account. The fund shall consist of gross receipts tax revenues distributed to the fund by law, money transferred to the fund pursuant to the provisions of the Energy Efficiency and Renewable Energy Bonding Act and other transfers and appropriations made to the fund. Earnings of the fund shall be credited to the fund. [Any unexpended or unencumbered balance in the energy efficiency and renewable energy bonding fund shall revert to the general fund at the end of a fiscal year.]
B. Money in the fund shall be pledged irrevocably by the authority for the payment of principal and interest on all bonds issued pursuant to the Energy Efficiency and Renewable Energy Bonding Act. Money in the fund is appropriated to the authority for the purpose of paying debt service, including redemption premiums, on the bonds and the expenses incurred in the issuance, payment and administration of the bonds.
C. On the last day of January and July of each year, the authority shall estimate the amount needed to make debt service payments on the bonds issued pursuant to the Energy Efficiency and Renewable Energy Bonding Act plus the amount that may be needed for any required reserves, administrative expenses or the obligations coming due during the next twelve months from the fund. Except as provided in Subsection D of this section, the authority shall transfer to the general fund any balance in the energy efficiency and renewable energy bonding fund above the estimated amounts. Amounts that revert to the general fund from the energy efficiency and renewable energy bonding fund may be appropriated by the legislature to the [department for the purposes of carrying out the provisions of the Energy Efficiency and Renewable Energy Bonding Act] energy efficiency assessment revolving fund.
D. The authority shall maintain a separate account in the fund for each pledge by a local government of legally available gross receipts tax revenue. If the amount in such a separate account exceeds a semiannual estimate of the amount needed during the next twelve months for debt service and other potential costs relating to the bonds for which the legally available gross receipts tax revenue is pledged, the excess shall be refunded to the local government.
[D.] E. Upon payment or defeasance of all principal, interest and other expenses or obligations related to the bonds, the authority shall certify to the public education department, the department of finance and administration and the secretary of taxation and revenue that all obligations for the bonds issued pursuant to the Energy Efficiency and Renewable Energy Bonding Act have been discharged and shall direct that distributions cease to the fund pursuant to that act and the Tax Administration Act.
[E.] F. The bonds issued pursuant to the Energy Efficiency and Renewable Energy Bonding Act shall be payable solely from the fund or such other special funds as may be provided by law and do not create an obligation or indebtedness of the state within the meaning of any constitutional provision. A breach of any contractual obligation incurred pursuant to that act shall not impose a pecuniary liability or a charge upon the general credit or taxing power of the state, and the bonds are not general obligations for which the state's full faith and credit is pledged.
[F.] G. The state does hereby pledge that the fund shall be used only for the purposes specified in this section and pledged first to pay the debt service on the bonds issued pursuant to the Energy Efficiency and Renewable Energy Bonding Act. The state further pledges that any law authorizing the distribution of taxes or other revenues to the fund or authorizing expenditures from the fund shall not be amended or repealed or otherwise modified so as to impair the bonds to which the fund is dedicated as provided in this section."
SECTION 5. Section 6-21D-6 NMSA 1978 (being Laws 2005, Chapter 176, Section 6) is amended to read:
"6-21D-6. CALCULATION OF COST SAVINGS--TRANSFERS TO ENERGY EFFICIENCY AND RENEWABLE ENERGY BONDING FUND.--
A. Upon the installation of energy efficiency measures in a state building, local government building or school district building, the department shall calculate the estimated energy cost savings, in the form of lower utility payments by the school district, the local government or the state, that will be annually realized as a result of the installation of the energy efficiency measures. The department shall certify the estimate to the department of finance and administration and the general services department or other state agency with jurisdiction, in the case of state buildings, [and] to the department of finance and administration, the public education department and the school district, in the case of school district buildings, and to the department of finance and administration and the local government, in the case of local government buildings.
B. In the case of a school district building, when calculating the state equalization guarantee distribution pursuant to Section 22-8-25 NMSA 1978, the public education department shall deduct ninety percent of the amount certified for the school district by the department.
C. Reduction of a school district's state equalization guarantee distribution shall cease when the school district's cumulative reductions equal its proportional share of the cumulative debt service payments necessary to service the bonds issued pursuant to the Energy Efficiency and Renewable Energy Bonding Act.
D. Prior to June 30 of each year, the total amount deducted for all school districts pursuant to Subsection B of this section shall be transferred to the fund.
E. In the case of a state building, the department of finance and administration shall deduct from the operating budget of the agency responsible for paying the utilities of the state building ninety percent of the amount certified for the agency by the department.
F. Deduction from the operating budget of the agency responsible for paying the utilities of the state building shall cease when the agency's cumulative deductions equal its proportional share of the cumulative debt service payments necessary to service the bonds issued pursuant to the Energy Efficiency and Renewable Energy Bonding Act.
G. Prior to June 30 of each year, the total amount deducted for all agencies and all state buildings pursuant to Subsection D of this section shall be transferred from the appropriate funds to the energy efficiency and renewable energy bonding fund.
H. In the case of a local government building, the local government shall, at such intervals as are agreed to between the local government and the authority, transfer to the fund that amount of its legally available gross receipts tax revenue that has been pledged by a resolution of the governing body of the local government; provided that:
(1) the amount pledged shall equal the debt service payments necessary to service the bonds issued for the purpose of financing the installation of energy efficiency measures in the local government building;
(2) no action shall be brought questioning the legality of the pledge of gross receipts tax revenue, the resolution, the bonds, the proceedings or any other matter concerning the pledge of gross receipts tax revenue after thirty days from the date of publication of the resolution pledging the revenue; and
(3) the legislature or local government shall not repeal, amend or otherwise modify any law, ordinance or resolution that adversely affects the pledge of the gross receipts tax revenue, unless the bonds have been paid."
SECTION 6. Section 6-21D-7 NMSA 1978 (being Laws 2005, Chapter 176, Section 7, as amended) is amended to read:
"6-21D-7. ENERGY EFFICIENCY BONDS AUTHORIZED--CONDITIONS--PROCEDURE.--
A. The authority is authorized to issue and sell from time to time revenue bonds, known as "energy efficiency bonds", in an amount outstanding at any one time not to exceed [twenty million dollars ($20,000,000)] one hundred fifty million dollars ($150,000,000), payable solely from the fund, in compliance with the Energy Efficiency and Renewable Energy Bonding Act and the New Mexico Finance Authority Act for the purpose of installing energy efficiency measures when the department has certified the need for the bonds and the conditions of Subsection C of this section have been satisfied.
B. The net proceeds from the bonds are appropriated to the authority for the purpose of making distributions to one or more state agencies, local governments or school districts that, pursuant to an energy efficiency assessment by the department, have committed to install energy efficiency measures or entered into contracts for the installation of the measures. Upon receipt of a distribution, the state agency, local governments or school district shall deposit into the energy efficiency assessment revolving fund the cost incurred by the department to make the energy efficiency assessment on the building and shall use the remainder for the installation of energy efficiency measures pursuant to the Energy Efficiency and Renewable Energy Bonding Act, provided that, after the installation of the energy efficiency measures, any unexpended balance of the bond proceeds shall revert to the energy efficiency and renewable energy bonding fund.
C. Bonds shall not be issued pursuant to this section unless:
(1) a state agency, local government or school district has committed to install or has entered into one or more contracts pursuant to Section 6-21D-4 NMSA 1978 for the installation of energy efficiency measures and the department has certified that the resulting energy cost savings will be realized within a reasonable time;
(2) considering the timeliness and amount of energy cost savings estimated to be realized from the energy efficiency measures, the department has certified the approximate date when the energy cost savings are most likely to equal or exceed the debt service due on the bonds to be issued to fund the energy efficiency measures;
(3) the life of energy efficiency measures meets or exceeds the life of the bonds allocable to those energy efficiency measures as determined by the department and the authority; [and]
(4) in the case of bonds issued for the installation of energy efficiency measures in a local government building, the governing body of the local government has, pursuant to Section 6-21D-6 NMSA 1978, passed a resolution pledging legally available gross receipts tax revenue for the debt service on the bonds; and
[(4)] (5) based on the department's certification, the debt service on the bonds has been structured by the authority to preclude the annual debt service payments due until the date that the cost savings equal or exceed the debt service.
D. Each series of bonds shall be issued pursuant to the provisions of the New Mexico Finance Authority Act, except as otherwise provided in the Energy Efficiency and Renewable Energy Bonding Act."
SECTION 7. A new section of Chapter 3, Article 18 NMSA 1978 is enacted to read:
"[NEW MATERIAL] PLEDGING OF GROSS RECEIPTS TAX REVENUE AUTHORIZED FOR ENERGY EFFICIENCY MEASURES.--Pursuant to the Energy Efficiency and Renewable Energy Bonding Act, a municipality may pledge a portion of its legally available gross receipts tax revenue to pay the debt service on energy efficiency bonds issued by the New Mexico finance authority for the purpose of financing the installation of energy efficiency measures in buildings owned by the municipality."
SECTION 8. A new section of Chapter 4, Article 36 NMSA 1978 is enacted to read:
"[NEW MATERIAL] PLEDGING OF GROSS RECEIPTS TAX REVENUE AUTHORIZED FOR ENERGY EFFICIENCY MEASURES.--Pursuant to the Energy Efficiency and Renewable Energy Bonding Act, a county may pledge a portion of its legally available gross receipts tax revenue to pay the debt service on energy efficiency bonds issued by the New Mexico finance authority for the purpose of financing the installation of energy efficiency measures in buildings owned by the county."
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