0001| HOUSE BILL 1008
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| JERRY LEE ALWIN
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO CORRECTIONS; AUTHORIZING THE CORRECTIONS DEPARTMENT
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0012| TO ENTER INTO A CONTRACT TO LEASE A PRIVATE CORRECTIONAL
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0013| FACILITY; AUTHORIZING THE NEW MEXICO FINANCE AUTHORITY TO ISSUE
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0014| REVENUE BONDS FOR THE CONSTRUCTION OF A STATE CORRECTIONAL
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0015| FACILITY; PROVIDING FOR DISTRIBUTION OF A PORTION OF GROSS
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0016| RECEIPTS TAX REVENUES; CREATING A FUND; AMENDING AND ENACTING
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0017| SECTIONS OF THE NMSA 1978; MAKING AN APPROPRIATION; DECLARING
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0018| AN EMERGENCY.
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0019|
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0020| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0021| Section 1. LEGISLATIVE FINDINGS--PURPOSE.--
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0022| A. The legislature recognizes that New Mexico's
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0023| correctional facilities are seriously overcrowded now and
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0024| cannot accommodate any anticipated growth in correctional
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0025| facility populations. To address this emergency, the state
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0001| must seek immediate opportunities to house inmates in existing
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0002| correctional facilities and to construct an additional
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0003| facility.
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0004| B. It is the purpose of this act to provide
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0005| authority for the corrections department to contract with
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0006| private correctional facility to house inmates as soon as
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0007| possible and to provide also for financing a new state
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0008| correctional facility in a location in the central part of the
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0009| state.
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0010| Section 2. [NEW MATERIAL] CONTRACT TO HOUSE INMATES.--
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0011| A. The corrections department shall solicit
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0012| proposals for the purpose of entering into a contract with a
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0013| private detention facility pursuant to Subsection G of Section
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0014| 31-20-2 NMSA 1978.
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0015| B. The facility contracting with the corrections
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0016| department pursuant to Subsection A of this section shall:
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0017| (1) be privately financed, designed,
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0018| constructed and operated by the contractor; provided that a
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0019| facility financed by bonds issued pursuant to the Industrial
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0020| Revenue Bond Act or the County Industrial Revenue Bond Act and
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0021| sold to the contractor shall be privately financed by the
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0022| contractor for the purposes of this paragraph;
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0023| (2) consist of one thousand two hundred or
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0024| more beds of which two hundred forty or more shall be
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0025| administrative segregation or maximum security beds and
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0001| expandable to two thousand two hundred beds; and
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0002| (3) be located in Bernalillo, Santa Fe,
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0003| Cibola, Socorro, Valencia, Sandoval or Torrance county.
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0004| C. The corrections department shall solicit
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0005| proposals and award any contract under this section in
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0006| accordance with the provisions of the Procurement Code. The
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0007| contract shall include such terms and conditions as the
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0008| department may require after consultation with the general
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0009| services department; provided that the terms and conditions
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0010| shall include provisions:
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0011| (1) setting forth comprehensive standards for
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0012| conditions of incarceration;
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0013| (2) requiring that the facility be accredited
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0014| by the American correctional association within one year after
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0015| beginning operation and remain accredited through the life of
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0016| the contract;
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0017| (3) that the contractor assumes all liability
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0018| caused by or arising out of all aspects of the provision or
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0019| operation of the facility;
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0020| (4) for liability insurance or other proof of
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0021| financial responsibility acceptable to the general services
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0022| department that covers the contractor and its officers,
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0023| employees and agents in an amount sufficient to cover all
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0024| liability caused by or arising out of all aspects of the
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0025| provision or operation of the facility;
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0001| (5) for termination for cause upon ninety
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0002| days' notice to the contractor for failure to meet contract
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0003| provisions when such failure seriously affects the availability
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0004| or operation of the facility;
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0005| (6) that venue for the enforcement of the
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0006| contract shall be in the district court for Santa Fe county;
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0007| (7) that continuation of the contract is
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0008| subject to the availability of funds;
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0009| (8) that compliance with the contract shall be
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0010| monitored by the corrections department and the contract may be
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0011| terminated for noncompliance; and
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0012| (9) that payments under the contract be made
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0013| only on a per diem per prisoner basis without any additional or
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0014| separate charge for capital costs.
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0015| Section 3. [NEW MATERIAL] EMERGENCY CONTRACT TO HOUSE
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0016| INMATES.--
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0017| A. In order to meet an immediate need for
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0018| additional facilities to house inmates, no later than December
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0019| 31, 1997 the corrections department may, pursuant to Subsection
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0020| G of Section 31-20-2 NMSA 1978, enter into a contract with a
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0021| private facility to house between six hundred and eight hundred
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0022| medium security inmates. Any facility contracting with the
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0023| corrections department pursuant to this section shall be
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0024| privately operated by the contractor.
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0025| B. The award of any contract pursuant to Subsection
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0001| A of this section shall be exempt from the provisions of the
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0002| Procurement Code. Any contact entered into pursuant to this
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0003| section shall contain the same provisions as required by
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0004| Paragraphs (1) though (9) of Subsection C of Section 2 of this
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0005| act.
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0006| Section 4. A new section of the New Mexico Finance
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0007| Authority Act is enacted to read:
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0008| "[NEW MATERIAL] PRISON FINANCING FUND CREATED.--
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0009| A. The "prison financing fund" is created within
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0010| the authority. The fund shall be administered by the authority
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0011| as a separate account. The authority is authorized to
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0012| establish procedures and adopt regulations as required to
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0013| administer the fund in accordance with the New Mexico Finance
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0014| Authority Act.
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0015| B. The prison financing fund shall consist of money
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0016| appropriated, distributed or otherwise allocated to the fund
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0017| for the purpose of financing a correctional facility in
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0018| Bernalillo, Santa Fe, Cibola, Socorro, Valencia, Sandoval or
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0019| Torrance county.
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0020| C. Money appropriated to pay administrative costs
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0021| and money available for administrative costs from other sources
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0022| shall not be deposited in the prison financing fund but shall
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0023| be deposited in a separate account of the authority and may be
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0024| used by the authority to meet administrative costs of the
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0025| authority. The authority is authorized to deduct
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0001| administrative costs annually from the fund prior to making the
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0002| transfer required by Subsection F of this section.
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0003| D. Money in the prison financing fund not needed
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0004| for immediate disbursement, including any money held in
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0005| reserve, may be deposited with the state treasurer for short-
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0006| term investment pursuant to Section 6-10-10.1 NMSA 1978 or may
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0007| be invested in direct and general obligations of or obligations
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0008| fully and unconditionally guaranteed by the United States,
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0009| obligations issued by agencies of the United States,
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0010| obligations of this state or any political subdivision of the
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0011| state, interest-bearing time deposits, commercial paper issued
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0012| by corporations organized and operating in the United States
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0013| and rated "prime" quality by a national rating service or as
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0014| otherwise provided by the trust indenture or bond resolution,
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0015| if money in the fund is pledged for or to secure payment of
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0016| bonds issued by the authority.
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0017| E. The authority shall establish fiscal controls
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0018| and accounting procedures that are sufficient to assure proper
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0019| accounting for correctional facilities financing fund payments,
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0020| disbursements and balances.
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0021| F. At the end of any fiscal year, after all debt
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0022| service charges, replenishment of reserves and administrative
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0023| costs on all outstanding revenue bonds, notes or other
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0024| obligations payable from the prison financing fund are
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0025| satisfied, the balance remaining in the correctional facilities
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0001| financing fund shall be transferred to the general fund for
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0002| appropriation by the legislature."
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0003| Section 5. A new section of the Tax Administration Act is
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0004| enacted to read:
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0005| "[NEW MATERIAL] DISTRIBUTION--NEW MEXICO FINANCE
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0006| AUTHORITY--GROSS RECEIPTS TAX.--
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0007| A. A distribution pursuant to Section 7-1-6.1 NMSA
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0008| 1978 shall be made to the prison financing fund administered by
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0009| the New Mexico finance authority in an amount equal to one and
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0010| one-fourth percent of the net receipts attributable to the
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0011| gross receipts tax imposed by the Gross Receipts and
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0012| Compensating Tax Act.
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0013| B. The state pledges to and agrees with the holders
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0014| of any bonds issued by the New Mexico finance authority and
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0015| payable from the net receipts attributable to the gross
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0016| receipts tax distributed to the prison financing fund
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0017| administered by the New Mexico finance authority pursuant to
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0018| this section that the state will not limit, reduce or alter the
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0019| distribution of the net receipts attributable to the gross
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0020| receipts tax to the prison financing fund or limit, reduce or
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0021| alter the rate of imposition of the gross receipts tax until
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0022| the bonds and the interest on the bonds are fully met and
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0023| discharged or provision has been made for the full payment and
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0024| discharge. The New Mexico finance authority is authorized to
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0025| include this pledge and agreement of the state in any agreement
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0001| with the holders of the bonds."
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0002| Section 6. Section 33-1-17 NMSA 1978 (being Laws 1985,
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0003| Chapter 149, Section 1, as amended) is amended to read:
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0004| "33-1-17. PRIVATE CONTRACT.--
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0005| A. The corrections department may contract for the
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0006| operation of any adult female facility or for housing adult
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0007| female inmates in a private facility with a person or entity in
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0008| the business of providing correctional or jail services to
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0009| government entities.
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0010| B. The corrections department may contract with a
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0011| person or entity in the business of providing correctional or
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0012| jail services to government entities for
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0013| [(1) a correctional facility in Guadalupe
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county of not less than five hundred fifty and not more than
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two thousand two hundred beds;
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(2) a correctional facility in Lea, Chaves or
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Santa Fe county of not less than one thousand two hundred and
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not more than two thousand two hundred beds;
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(3) design and construction of a support
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services building, a laundry and an infirmary at the
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penitentiary of New Mexico in Santa Fe; or
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(4)] construction of a public facility to
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0023| house a special incarceration alternative program for adult
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0024| male and adult female felony offenders.
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0025| [C. The authorization in Subsection B of this
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section for a correctional facility in Guadalupe county and a
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correctional facility in Lea, Chaves or Santa Fe county is
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contingent upon construction of both facilities, so that one of
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the facilities shall not be constructed unless both of the
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facilities are constructed, as nearly as practicable,
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simultaneously.
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D.] C. The corrections department shall
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0008| solicit proposals and award any contract under this section in
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0009| accordance with the provisions of the Procurement Code. The
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0010| contract shall include such terms and conditions as the
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0011| corrections department may require after consultation with
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0012| the general services department; provided that the terms and
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0013| conditions shall include provisions:
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0014| (1) setting forth comprehensive standards for
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0015| conditions of incarceration;
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0016| (2) that the contractor assumes all liability
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0017| caused by or arising out of all aspects of the provision or
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0018| operation of the facility;
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0019| (3) for liability insurance or other proof of
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0020| financial responsibility acceptable to the general services
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0021| department covering the contractor and its officers, employees
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0022| and agents in an amount sufficient to cover all liability
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0023| caused by or arising out of all aspects of the provision or
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0024| operation of the facility;
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0025| (4) for termination for cause upon ninety
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0001| days' notice to the contractor for failure to meet contract
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0002| provisions when such failure seriously affects the availability
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0003| or operation of the facility;
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0004| (5) that venue for the enforcement of the
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0005| contract shall be in the district court for Santa Fe county;
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0006| (6) that continuation of the contract is
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0007| subject to the availability of funds; and
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0008| (7) that compliance with the contract shall be
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0009| monitored by the corrections department and the contract may be
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0010| terminated for noncompliance.
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0011| [E.] D. When the contractor begins operation of
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0012| a facility for which private contractor operation is
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0013| authorized, his employees performing the functions of
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0014| correctional officers shall be deemed correctional officers for
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0015| the purposes of Sections 33-1-10 and 33-1-11 NMSA 1978 but for
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0016| no other purpose of state law, unless specifically stated.
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0017| [F.] E. Any contract awarded pursuant to this
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0018| section may include terms to provide for the renovation of the
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0019| facility or for the construction of new buildings. Work
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0020| performed pursuant to such terms and conditions shall not be
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0021| considered a capital project as defined in Section 15-3-23.3
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0022| NMSA 1978 or a state public works project as defined in Section
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0023| 13-1-91 NMSA 1978 nor shall it be subject to the requirements
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0024| of Section 13-1-150 NMSA 1978 or of the Capital Program Act,
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0025| review by the staff architect of the property control division
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0001| of the general services department pursuant to Section 15-3-20
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0002| NMSA 1978 or regulation by the director of that division
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0003| pursuant to Section 15-3-11 NMSA 1978.
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0004| [G.] F. Any contract entered into by the
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0005| corrections department with a private contractor to operate an
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0006| existing facility shall include a provision securing the right
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0007| of all persons employed by that facility prior to the effective
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0008| date of that contract to be employed by that contractor in any
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0009| position for which they qualify before that position is offered
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0010| to any person not employed by that facility prior to that
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0011| date."
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0012| Section 7. Section 33-1-18 NMSA 1978 (being Laws 1990
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0013| (1st. S.S.), Chapter 5, Section 1, as amended) is amended to
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0014| read:
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0015| "33-1-18. [FUNDS] FUND CREATED.--There [are] is
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0016| created in the state treasury a special [funds] fund to
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0017| be known as the "corrections department building fund" [the
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"Guadalupe county prison fund" and the "New Mexico prison
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fund"]. The [funds] fund shall consist of money
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0020| appropriated by the legislature, from year to year, from the
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0021| income of the permanent fund and land income of which the
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0022| penitentiary of New Mexico is the beneficiary [and any other
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revenues that are appropriated to the funds, other than
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revenues derived from property taxes or general fund
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revenues]. Income from investment of [each special] the
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0001| corrections department building fund [created by this
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section] shall be credited to [that] the fund."
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0003| Section 8. Section 33-1-19 NMSA 1978 (being Laws 1990
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0004| (1st. S.S.), Chapter 5, Section 2, as amended by Laws 1995,
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0005| Chapter 43, Section 1 and also by Laws 1995, Chapter 215,
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0006| Section 4) is amended to read:
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0007| "33-1-19. USE OF FUNDS.--
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0008| A. The [funds created in or pursuant to Section
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33-1-18 NMSA 1978] corrections department building fund
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0010| shall be used by the corrections department or the state
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0011| board of finance for the purpose of acquiring, designing,
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0012| constructing or equipping, by lease or lease-purchase, or by
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0013| financing the ownership by the corrections department through
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0014| the issuance of bonds or other obligations by the corrections
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0015| department or the state board of finance, or other means, a
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0016| corrections department central office complex, a personnel
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0017| training academy, a special incarceration alternative facility.
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0018| [correctional facilities or any combination of these
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facilities, and for paying the expenses relating to the lease,
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lease-purchase or financing of these facilities. Before any of
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the funds created in Section 33-1-18 NMSA 1978 may be used for
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any such purpose, the state board of finance shall approve the
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proposed facility and the proposed use of the funds.
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B. The funds created in or pursuant to Section
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33-1-18 NMSA 1978 shall be used so that available
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appropriations are devoted to the following projects:
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(1) payment for the corrections department
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central office complex;
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(2) a correctional facility in Guadalupe
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county of not less than five hundred fifty and not more than
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two thousand two hundred beds;
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(3) a correctional facility in Lea, Chaves or
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Santa Fe county of not less than one thousand two hundred and
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not more than two thousand two hundred beds; and
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(4) design and construction of a support
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services building, a laundry and an infirmary at the
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penitentiary of New Mexico in Santa Fe.
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C. The use of funds designated in Subsection B of
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this section for a correctional facility in Guadalupe county
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and a correctional facility in Lea, Chaves or Santa Fe county
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is contingent upon construction of both facilities, so that one
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of the facilities shall not be constructed unless both of the
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facilities are constructed, as nearly as possible,
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simultaneously.
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D.] B. Any balance at the end of any fiscal year
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0021| in the [special funds created in Section 33-1-18 NMSA 1978]
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0022| corrections department building fund that [are] is not
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0023| needed to pay leases, loans, bonds or other financing
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0024| instruments in that fiscal year may be appropriated by the
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0025| legislature for expenditure in succeeding fiscal years by the
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0001| corrections department for corrections purposes."
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0002| Section 9. NEW MEXICO FINANCE AUTHORITY--REVENUE
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0003| BONDS--PURPOSE--APPROPRIATION OF PROCEEDS.--
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0004| A. The New Mexico finance authority may issue and
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0005| sell revenue bonds, payable solely from the prison financing
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0006| fund, in compliance with the provisions of the New Mexico
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0007| Finance Authority Act in installments or at one time in an
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0008| amount not to exceed sixty-five million dollars ($65,000,000)
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0009| for the purpose of financing the design, construction and
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0010| equipping of a state correctional facility as provided in
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0011| Subsection B of this section when the corrections department
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0012| certifies the need for the issuance of the bonds.
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0013| B. The net proceeds from the bonds are appropriated
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0014| to the corrections department to design, construct and equip a
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0015| state correctional facility to be located in Bernalillo,
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0016| Cibola, Sandoval, Santa Fe, Socorro, Torrance or Valencia
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0017| county. The correctional facility shall consist of two hundred
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0018| forty administrative segregation or maximum security beds and
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0019| nine hundred sixty medium security beds. The facility shall be
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0020| designed and constructed so as to be expandable to one thousand
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0021| eight hundred beds.
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0022| Section 10. DELAYED REPEAL.--Section 5 of this act is
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0023| repealed effective July 1, 2002.
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0024| Section 11. EFFECTIVE DATE.--The effective date of the
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0025| provisions of Sections 4 and 5 of this act is July 1, 1997.
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0001| Section 12. EMERGENCY.--It is necessary for the public
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0002| peace, health and safety that this act take effect immediately.
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0003|
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