2004 Senate Bill text for SB0422

SENATE BILL 422

46th legislature - STATE OF NEW MEXICO - second session, 2004

INTRODUCED BY

Manny M. Aragon

AN ACT

RELATING TO LOCAL GOVERNMENT; ENACTING THE ALBUQUERQUE-BERNALILLO COUNTY WATER UTILITY AUTHORITY ACT; CREATING THE AUTHORITY AS A POLITICAL SUBDIVISION OF THE STATE; PROVIDING POWERS AND DUTIES; PROVIDING FOR THE SETTING OF RATES; PROVIDING FOR THE ISSUANCE OF REVENUE BONDS AND REFUNDING BONDS; PROVIDING FOR FEES; EXEMPTING THE AUTHORITY FROM THE PROCUREMENT CODE, THE PUBLIC UTILITY ACT AND REGULATION BY THE PUBLIC REGULATION COMMISSION; PROVIDING FOR RETIREMENT BENEFITS FOR AUTHORITY EMPLOYEES; RECONCILING MULTIPLE AMENDMENTS TO SECTION 13-1-98 NMSA 1978 (BEING LAWS 1984, CHAPTER 65, SECTION 71, AS AMENDED BY LAWS 2001, CHAPTER 291, SECTION 8 AND BY LAWS 2001, CHAPTER 292, SECTION 3 AND BY LAWS 2001, CHAPTER 305, SECTION 28 AND ALSO BY LAWS 2001, CHAPTER 312, SECTION 13).

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

Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 22 of this act may be cited as the "Albuquerque-Bernalillo County Water Utility Authority Act".

Section 2. [NEW MATERIAL] LEGISLATIVE DECLARATION.--It is hereby declared as a matter of legislative determination that: A. the organization of the authority created pursuant to the Albuquerque-Bernalillo County Water Utility Authority Act having the purposes, powers, duties, privileges, immunities, rights, liabilities and disabilities provided in that act will serve a public use and will promote the health, safety, prosperity, security and general welfare of the inhabitants of Albuquerque and Bernalillo county and of the state;

B. the acquisition, improvement, maintenance and operation of a utility system authorized in the Albuquerque-Bernalillo County Water Utility Authority Act is in the public interest and constitutes a part of the established and permanent policy of the state;

C. the authority organized pursuant to the Albuquerque-Bernalillo County Water Utility Authority Act shall be a body corporate and politic and a political subdivision of the state;

D. the utility system authorized and directed to be acquired will be of special benefit to the property within the boundaries of the authority;

E. a general law cannot be made applicable to the designated utility system and the provisions in the Albuquerque-Bernalillo County Water Utility Authority Act appertaining to the utility system because of a number of atypical and special conditions concerning them; and

F. for the accomplishment of these purposes, the provisions of the Albuquerque-Bernalillo County Water Utility Authority Act shall be broadly construed.

Section 3. [NEW MATERIAL] DEFINITIONS.--As used in the Albuquerque-Bernalillo County Water Utility Authority Act:

A. "authority" means the Albuquerque-Bernalillo county water utility authority; and

B. "utility system" means the Albuquerque-Bernalillo water and wastewater system consisting of all properties, real, personal, mixed or otherwise, now owned or hereafter acquired by Albuquerque, Bernalillo county or the authority through purchase, construction, condemnation or otherwise, including all extensions, enlargements and improvements of or to the water and wastewater system and used in connection therewith or relating thereto, and any other related activity or enterprise of Albuquerque, Bernalillo county or the authority designated by the authority as part of the water and wastewater system, wherever situated.

Section 4. [NEW MATERIAL] CREATION OF AUTHORITY--OBJECTS AND PURPOSES--MEMBERSHIP--VACANCIES.--

A. The "Albuquerque-Bernalillo county water utility authority" is created. The authority shall set policy, administer, regulate and supervise the utility system, including determining and imposing rates for services.

B. The board of directors of the authority is composed of the mayor of Albuquerque, three city councilors and three county commissioners, who serve ex officio.

C. City council members shall serve one-year terms at the discretion of the city council president. County commission members shall serve one-year terms at the discretion of the county commission chairman.

D. A vacancy on the authority by a city council or county commission member shall be filled by appointment by the appropriate appointing authority. A vacancy on the authority by the mayor member shall be filled in accordance with the city charter.

E. The authority shall annually elect a chairman, who shall preside at meetings. In the absence of the chairman, the authority may appoint any other member to preside.

Section 5. [NEW MATERIAL] POLITICAL SUBDIVISION.--The authority is a public body politic and corporate, separate and apart from the municipality or the county. The authority is a political subdivision of the state.

Section 6. [NEW MATERIAL] AUTHORITY--POWERS AND DUTIES.--The authority is granted all powers necessary and appropriate to carry out and effectuate its public and corporate purposes, including the following powers to:

A. sue or be sued;

B. adopt and alter an official seal;

C. make and alter bylaws for its organization and internal management and to adopt such rules as are necessary and appropriate to implement the provisions of the Albuquerque-Bernalillo County Water Utility Authority Act;

D. make, enter into and enforce contracts and leases;

E. acquire and hold property, both real and personal, and acquire, construct, operate and maintain buildings, improvement and facilities;

F. establish rates for services provided by the authority, under contract to the authority or otherwise under the control of the authority and offered through the utility system, including amounts that the authority determines to be reasonable and consistent with amounts received by private enterprise in the operation of similar facilities;

G. apply for and accept grants, gifts, donations, bequests and devises;

H. appoint officers, agents and employees, prescribe their duties and qualifications and fix their compensation;

I. contract for consultants and such other persons as it deems necessary, including operators for all or any portion of the utility system and under such terms and conditions as may be established by the authority in any agreement relating to such contract operators;

J. adopt a procurement system;

K. make plans and conduct studies;

L. condemn real and personal property for public use;

M. issue revenue bonds in accordance with the provisions of the Albuquerque-Bernalillo County Water Utility Authority Act;

N. bill and collect any and all fees based on usage and the rates set by the authority and establish a procedure for the resolution of disputed fees;

O. determine eligibility of customers within the service territory of the authority;

P. impose conditions on the use of any facility or the utility system;

Q. suspend authorization to use the utility system for nonpayment or failure to abide by any rule of the authority;

R. adopt ordinances or resolutions necessary to carry out the purposes of the Albuquerque-Bernalillo County Water Utility Authority Act;

S. pledge the net revenues of the utility system to the payment of any revenue bonds authorized to be issued and to make such covenants as are necessary or advisable with respect to any revenue bonds;

T. adopt an annual budget; and

U. obtain necessary public liability and property insurance coverage.

Section 7. [NEW MATERIAL] JURISDICTION OVER WATER FACILITIES AND SOURCE--METHODS OF ACQUISITION--PROCEEDINGS.--

A. For purposes of acquiring, maintaining, contracting for, condemning or protecting its water facilities and water from pollution, the jurisdiction of the authority extends within and without the boundaries of Bernalillo county to:

(1) all territory occupied by the water facilities;

(2) all reservoirs, streams and other sources supplying the reservoirs and streams; and

(3) five miles above the point from which the water is taken.

B. In exercising its jurisdiction to acquire, maintain, contract for or condemn, the authority shall not act so as to physically isolate and make nonviable any portion of the water facilities within or without Bernalillo county. The authority may adopt any resolution or rule necessary to carry out the power conferred by this section.

C. The authority, within and without the Bernalillo county boundary, may:

(1) acquire, contract for or condemn:

(a) springs;

(b) wells;

(d) other water supplies; and

(e) right of way or other necessary ownership for the acquisition of water facilities;

(2) acquire, maintain, contract for or condemn for use privately owned water facilities used or to be used for the furnishing and supply of water; and

(3) change the place of diversion of any water to any place selected by the authority in order to make the water available to the authority.

D. Proceedings to obtain any condemnation authorized in the Albuquerque-Bernalillo County Water Utility Authority Act shall be in the manner provided by law.

Section 8. [NEW MATERIAL] JURISDICTION OVER WASTEWATER FACILITIES--METHODS OF ACQUISITION--PROCEEDINGS.--

A. For purposes of acquiring, maintaining, contracting for, condemning or protecting its wastewater facilities, the jurisdiction of the authority extends within and without the boundaries of Bernalillo county to the territory occupied by the wastewater facilities and to privately owned wastewater facilities interconnected to the utility system.

B. In exercising its jurisdiction to acquire, maintain, contract for or condemn, the authority shall not act so as to physically isolate and make nonviable any portion of the wastewater facilities within or without Bernalillo county. The authority may adopt any resolution or rule necessary to carry out the power conferred by this section.

C. The authority, within and without the Bernalillo county boundary, may:

(1) acquire, maintain, contract for or condemn facilities for the collection, treatment and disposal of wastewater;

(2) condemn private property for the construction, maintenance and operation of wastewater facilities; and

(3) acquire, maintain, contract for or condemn for use as a part of the utility system privately owned wastewater facilities used or to be used for the collection, treatment and disposal of wastewater of the authority or its customers.

D. Proceedings to obtain any condemnation authorized in the Albuquerque-Bernalillo County Water Utility Authority Act shall be in the manner provided by law.

Section 9. [NEW MATERIAL] AUTHORITY NOT SUBJECT TO PUBLIC REGULATION COMMISSION JURISDICTION--EXEMPT FROM PUBLIC UTILITY ACT--FORTY-YEAR WATER USE PLANNING.--

A. The authority is not subject to the jurisdiction or any approvals of the public regulation commission or the terms and provisions of the Public Utility Act.

B. The authority has the right to a water use planning period not to exceed forty years pursuant to Section 72-1-9 NMSA 1978.

Section 10. [NEW MATERIAL] DEVELOPMENT FEES.--The authority may impose any fee a municipality or county may impose in accordance with the Development Fees Act.

Section 11. [NEW MATERIAL] FRANCHISE AUTHORITY.--

Albuquerque or Bernalillo county may grant, by ordinance or resolution, a franchise to the authority for the operation, construction and maintenance of the utility system and for the use and rental of Albuquerque or Bernalillo county right of way. In exchange for granting a franchise, Albuquerque or Bernalillo county may exact consideration in the form of a franchise fee equal to some percentage of the authority's gross revenue or net earnings or some other negotiated consideration.

Section 12. [NEW MATERIAL] UTILITY SYSTEM REVENUE BONDS--AUTHORITY TO ISSUE--PLEDGE OF REVENUES--LIMITATION ON TIME OF ISSUANCE.--

A. Utility system revenue bonds may be issued by the authority for acquiring real and personal property needed for the utility system, including water rights, for extending, enlarging, bettering, repairing or otherwise improving the utility system or for any combination of those purposes. The authority may pledge irrevocably any or all of the net revenues from the operation of the utility system for payment of the interest on and principal of the revenue bonds.

B. Except for the purpose of refunding previous utility system revenue bond issues, the authority may not sell utility system revenue bonds payable from pledged revenues after the expiration of two years from the date of the resolution authorizing the issuance of the bonds. However, any period of time during which a particular revenue bond issue is in litigation shall not be counted in determining the expiration date of that issue.

C. Nothing in the Albuquerque-Bernalillo County Water Utility Authority Act shall be deemed to impair revenue bonds or other obligations payable from the net revenues of the water and wastewater system previously issued or incurred by Albuquerque. The authority shall not impair the rights of any holders of bonds or other obligations payable from the net revenues of the utility system previously issued or incurred by Albuquerque.

D. If required by the terms, covenants and provisions of revenue bonds or other obligations previously issued by Albuquerque, all additional bonds or other obligations issued or incurred by the authority pursuant to the Albuquerque-Bernalillo County Water Utility Authority Act shall contain any required terms, covenants or provisions required to avoid impairment of the previously issued or incurred bonds or other obligations.

Section 13. [NEW MATERIAL] USE OF PROCEEDS OF UTILITY SYSTEM REVENUE BOND ISSUE.--It is unlawful to divert, use or expend any money received from the issuance of utility system revenue bonds for any purpose other than the purpose for which the utility system revenue bonds were issued.

Section 14. [NEW MATERIAL] UTILITY SYSTEM REVENUE BONDS--TERMS.--Utility system revenue bonds:

A. may have interest, appreciated principal value or any part thereof payable at intervals or at maturity as may be determined by the authority;

B. may be subject to prior redemption at the authority's option at such time or times and upon such terms and conditions with or without the payment of such premium or premiums as may be determined by the authority;

C. may mature at any time or times not exceeding fifty years after the date of issuance;

D. may be serial in form and maturity or may consist of one bond payable at one time or in installments or may be in such other form as may be determined by the authority;

E. shall be sold for cash at above or below par and at a price that results in a net effective interest rate that does not exceed the maximum permitted by the Public Securities Act; and

F. may be sold at public or negotiated sale.

Section 15. [NEW MATERIAL] EXEMPTION FROM TAXATION.--The bonds authorized by the Albuquerque-Bernalillo County Water Utility Authority Act and the income from the bonds shall be exempt from all taxation by the state or any political subdivision of the state.

Section 16. [NEW MATERIAL] RESOLUTION AUTHORIZING REVENUE BONDS.--

A. At a regular or special meeting called for the purpose of issuing utility system revenue bonds, the authority may adopt a resolution that:

(1) declares the necessity for issuing utility system revenue bonds; and

(2) authorizes the issuance of utility system revenue bonds by an affirmative vote of two-thirds of all members of the authority.

B. Utility system revenue bonds and the resolution authorizing their issuance shall not be subject to the approval of the public regulation commission pursuant to Section 3-23-3 NMSA 1978 or subject to voter approval pursuant to Section 3-23-2 NMSA 1978.

Section 17. [NEW MATERIAL] UTILITY SYSTEM REVENUE BONDS NOT GENERAL OBLIGATIONS--AUTHENTICATION.--

A. Utility system revenue bonds or utility system refunding revenue bonds issued as authorized in the Albuquerque-Bernalillo County Water Utility Authority Act are:

(1) not general obligations of Albuquerque or Bernalillo county; and

(2) collectible only from the pledged revenues of the utility system, and each bond shall state that it is payable solely from the pledged revenues of the utility system and that the bondholders may not look to the state or any other political subdivision of the state to fund the payment of the interest and principal of the bond.

B. The bonds shall be executed by the chairman of the authority and may be authenticated by the secretary of the authority or any public or private transfer agent or registrar, or its successor, named or otherwise designated by the authority. The bonds may be executed as provided under the Uniform Facsimile Signature of Public Officials Act.

Section 18. [NEW MATERIAL] UTILITY SYSTEM REVENUE BONDS--MANDATORY RATES FOR THE UTILITY SYSTEM--MANDAMUS--IMPAIRMENT OF PAYMENT.--

A. The authority shall establish rates for services rendered by the utility system to provide revenue sufficient to meet the following requirements, and such rates shall remain in effect until the bond issue is liquidated:

(1) pay all reasonable expenses of operation of the utility system;

(2) pay all interest on the utility system revenue bonds as it comes due; and

(3) provide a sinking fund adequate to discharge the revenue bonds as they mature.

B. In the event the authority fails or refuses to establish rates for the utility system as required in this section, any bondholder may apply to the district court for a mandatory order requiring the authority to establish rates that will provide revenues adequate to meet the requirements of this section.

C. Any law, ordinance or resolution that authorizes the pledge of any or all of the pledged utility system revenues to the payment of any utility system revenue bonds issued pursuant to the Albuquerque-Bernalillo County Water Utility Authority Act or that affects the pledged revenues of the utility system, or any law supplemental to or otherwise appertaining to that act, shall not be repealed or amended or otherwise directly or indirectly modified in such a manner as to impair adversely any such outstanding revenue bonds, unless the outstanding revenue bonds have been discharged in full or provision has been fully made for payment of the bonds.

Section 19. [NEW MATERIAL] UTILITY SYSTEM REVENUE BONDS--REFUNDING AUTHORIZATION.--

A. The authority may issue refunding revenue bonds for the purpose of refinancing, paying and discharging all or any part of outstanding utility system bonds and outstanding bonds or other obligations payable from the net revenues of the utility system previously issued or incurred by Albuquerque.

B. The authority may pledge irrevocably for the payment of interest and principal on refunding bonds the pledged revenues of the utility system.

C. Bonds for refunding and bonds for any purpose permitted by the Albuquerque-Bernalillo County Water Utility Authority Act may be issued separately or issued in combination in one series or more.

Section 20. [NEW MATERIAL] UTILITY SYSTEM REFUNDING REVENUE BONDS--ESCROW--DETAIL.--

A. Utility system refunding revenue bonds issued pursuant to the Albuquerque-Bernalillo County Water Utility Authority Act shall be authorized by resolution. Any bonds that are refunded pursuant to the provisions of this section shall be paid at maturity or on any permitted prior redemption date in the amounts, at the time and places and, if called prior to maturity, in accordance with any applicable notice provisions, all as provided in the proceedings authorizing the issuance of the refunded bonds or otherwise appertaining to the bonds, except for any such bond that is voluntarily surrendered for exchange or payment by the holder or owner.

B. Provision shall be made for paying the bonds refunded at the time or times provided in Subsection A of this section. The principal amount of the refunding bonds may exceed the principal amount of the refunded bonds and may also be less than or the same as the principal amount of the bonds being refunded so long as provision is duly and sufficiently made for the payment of the refunded bonds.

C. The proceeds of refunding bonds, including any accrued interest and premium appertaining to the sale of refunding bonds, shall either be immediately applied to the retirement of the bonds being refunded or be placed in escrow in a commercial bank or trust company, which possesses and is exercising trust powers and which is a member of the federal deposit insurance corporation, to be applied to the payment of the principal of, interest on and any prior redemption premium due in connection with the bonds being refunded; provided that such refunding bond proceeds, including any accrued interest and any premium appertaining to a sale of refunding bonds, may be applied to the establishment and maintenance of a reserve fund and to the payment of expenses incidental to the refunding and the issuance of the refunding bonds, the interest on the bonds and the principal of the bonds or both interest and principal as the authority may determine. Nothing in this section requires the establishment of an escrow if the refunded bonds become due and payable within one year from the date of the refunding bonds and if the amounts necessary to retire the refunded bonds within that time are deposited with the paying agent for the refunded bonds. Any such escrow shall not necessarily be limited to proceeds of refunding bonds but may include other money available for its purpose. Any proceeds in escrow pending such use may be invested or reinvested in bills, certificates of indebtedness, notes or bonds that are direct obligations of or the principal and interest of which obligations are unconditionally guaranteed by the United States of America or in certificates of deposit of banks that are members of the federal deposit insurance corporation, the par value of which certificates of deposit is collateralized by a pledge of obligations of or the payment of which is unconditionally guaranteed by the United States of America, the par value of which obligations is at least seventy-five percent of the par value of the certificates of deposit. Such proceeds and investments in escrow together with any interest or other income to be derived from any such investment shall be in an amount at all times sufficient as to principal, interest, any prior redemption premium due and any charges of the escrow agent payable therefrom to pay the bonds being refunded as they become due at their respective maturities or due at any designated prior redemption date or dates in connection with which the authority shall exercise a prior redemption option. Any purchaser of any refunding bond is in no manner responsible for the application of the proceeds thereof by the authority or any of its officers, agents or employees.

D. Refunding bonds may bear such additional terms and provisions as may be determined by the authority and the refunding bonds are not subject to the provisions of any other statute except as may be provided in the Albuquerque-Bernalillo County Water Utility Authority Act.

Section 21. [NEW MATERIAL] UTILITY SYSTEM REFUNDING REVENUE BONDS--TERMS.--Utility system refunding revenue bonds:

A. may have interest, appreciated principal value or any part thereof payable at intervals or at maturity as may be determined by the authority;

B. may be subject to prior redemption at the authority's option at such time or times and upon such terms and conditions with or without the payment of premium or premiums as may be determined by the authority;

C. may mature at any time or times not exceeding fifty years after the date of issuance;

D. may be serial in form and maturity or may consist of a single bond payable in one or more installments or may be in such other form as may be determined by the authority; and

E. shall be exchanged for the bonds and any matured unpaid interest being refunded at not less than par or sold at public or negotiated sale at, above or below par and at a price that results in a net effective interest rate that does not exceed the maximum permitted by the Public Securities Act.

Section 22. [NEW MATERIAL] UTILITY SYSTEM REFUNDING REVENUE BONDS--RESOLUTION.--At any regular or special meeting called for the purpose of issuing utility system refunding revenue bonds, the authority by a majority vote of all the members of the authority may adopt a resolution authorizing the issuance of the refunding revenue bonds.

Section 23. Section 5-8-2 NMSA 1978 (being Laws 1993, Chapter 122, Section 2) is amended to read:

"5-8-2. DEFINITIONS.--As used in the Development Fees Act:

A. "affordable housing" means any housing development built to benefit those whose income is at or below eighty percent of the area median income and who will pay no more than thirty percent of their gross monthly income towards such housing;

B. "approved land use assumptions" means land use assumptions adopted originally or as amended under the Development Fees Act;

C. "assessment" means a determination of the amount of an impact fee;

D. "capital improvement" means any of the following facilities that have a life expectancy of ten or more years and are owned and operated by or on behalf of a municipality or county:

(1) water supply, treatment and distribution facilities; wastewater collection and treatment facilities; and storm water, drainage and flood control facilities;

(2) roadway facilities located within the service area, including roads, bridges, bike and pedestrian trails, bus bays, rights of way, traffic signals, landscaping and any local components of state and federal highways;

(3) buildings for fire, police and rescue and essential equipment costing ten thousand dollars ($10,000) or more and having a life expectancy of ten years or more; and

(4) parks, recreational areas, open space trails and related areas and facilities;

E. "capital improvements plan" means a plan required by the Development Fees Act that identifies capital improvements or facility expansion for which impact fees may be assessed;

F. "county" means a county of any classification;

G. "facility expansion" means the expansion of the capacity of an existing facility that serves the same function as an otherwise necessary new capital improvement, in order that the existing facility may serve new development. [The term] "Facility expansion" does not include the repair, maintenance, modernization or expansion of an existing facility to better serve existing development, including schools and related facilities;

H. "hook-up fee" means a reasonable fee for connection of a service line to an existing gas, water, sewer or municipal or county utility;

I. "impact fee" means a charge or assessment imposed by a municipality or county on new development in order to generate revenue for funding or recouping the costs of capital improvements or facility expansions necessitated by and attributable to the new development. [The term] "Impact fee" includes amortized charges, lump-sum charges, capital recovery fees, contributions in aid of construction, development fees and any other fee that functions as described by this definition. [The term] "Impact fee" does not include hook-up fees, dedication of rights of way or easements or construction or dedication of on-site water distribution, wastewater collection or drainage facilities or streets, sidewalks or curbs if the dedication or construction is required by a previously adopted valid ordinance or regulation and is necessitated by and attributable to the new development;

J. "land use assumptions" includes a description of the service area and projections of changes in land uses, densities, intensities and population in the service area over at least a five-year period;

K. "municipality" means any incorporated city, town or village, whether incorporated under general act, special act or special charter; [and] H class counties, including any home rule municipality or H class county chartered under the provisions of Article 10, Section 6 of the constitution of New Mexico; and the Albuquerque-Bernalillo county water utility authority;

L. "new development" means the subdivision of land; reconstruction, redevelopment, conversion, structural alteration, relocation or enlargement of any structure; or any use or extension of the use of land; any of which increases the number of service units;

M. "qualified professional" means a professional engineer, surveyor, financial analyst or planner providing services within the scope of his license, education or experience;

N. "roadway facilities" means arterial or collector streets or roads that have been designated on an officially adopted roadway plan of the municipality or county, including bridges, bike and pedestrian trails, bus bays, rights of way, traffic signals, landscaping and any local components of state or federal highways;

O. "service area" means the area within the corporate boundaries or extraterritorial jurisdiction of a municipality or the boundaries of a county to be served by the capital improvements or facility expansions specified in the capital improvements plan designated on the basis of sound planning and engineering standards; and

P. "service unit" means a standardized measure of consumption, use, generation or discharge attributable to an individual unit of development calculated in accordance with generally accepted engineering or planning standards for a particular category of capital improvements or facility expansions."

Section 24. Section 10-11-122 NMSA 1978 (being Laws 1987, Chapter 253, Section 122) is amended to read:

"10-11-122. PUBLIC EMPLOYER AFFILIATION.--

A. A public employer who is an affiliated public employer on the effective date of the Public Employees Retirement Act shall continue to be an affiliated public employer.

B. A public employer who is not an affiliated public employer on the effective date of [that] the Public Employees Retirement Act may become an affiliated public employer by resolution or ordinance adopted by its governing body. Affiliation shall be effective the first day of the month following completion of each of the following requirements:

(1) the public employer files a certified copy of the resolution or ordinance with the association; and

(2) the public employer furnishes the association with all information requested by the association.

C. An affiliated public employer may adopt a coverage plan by resolution or ordinance of its governing body, unless a procedure for adopting the change is otherwise provided in the Public Employees Retirement Act. The change shall be effective the first day of the month following completion of each of the following requirements:

(1) the public employer files a certified copy of the resolution or ordinance with the association; and

(2) the public employer furnishes the association with all information requested by the association.

D. An affiliated public employer that is created by the merger of two or more affiliated public employers, designation of a group of employees from two or more affiliated public employers or by a joint powers agreement between two or more affiliated public employers shall adopt the coverage plan that provides the highest pension applicable to the affiliated public employers or the designated group that they employ. Affiliation shall be effective the first day of the month following completion of each of the following requirements:

(1) the public employer files a certified copy of the resolution or ordinance with the association; and

(2) the public employer furnishes the association with all information requested by the association."

Section 25. Section 13-1-98 NMSA 1978 (being Laws 1984, Chapter 65, Section 71, as amended by Laws 2001, Chapter 291, Section 8 and by Laws 2001, Chapter 292, Section 3 and by Laws 2001, Chapter 305, Section 28 and also by Laws 2001, Chapter 312, Section 13) is amended to read:

"13-1-98. EXEMPTIONS FROM THE PROCUREMENT CODE.--The provisions of the Procurement Code shall not apply to:

A. procurement of items of tangible personal property or services by a state agency or a local public body from a state agency, a local public body or external procurement unit except as otherwise provided in Sections 13-1-135 through 13-1-137 NMSA 1978;

B. procurement of tangible personal property or services for the governor's mansion and grounds;

C. printing and duplicating contracts involving materials that are required to be filed in connection with proceedings before administrative agencies or state or federal courts;

D. purchases of publicly provided or publicly regulated gas, electricity, water, sewer and refuse collection services;

E. purchases of books and periodicals from the publishers or copyright holders thereof;

F. travel or shipping by common carrier or by private conveyance or to meals and lodging;

G. purchase of livestock at auction rings or to the procurement of animals to be used for research and experimentation or exhibit;

H. contracts with businesses for public school transportation services;

I. procurement of tangible personal property or services, as defined by Sections 13-1-87 and 13-1-93 NMSA 1978, by the corrections industries division of the corrections department pursuant to regulations adopted by the corrections commission, which shall be reviewed by the purchasing division of the general services department prior to adoption;

J. minor purchases not exceeding five thousand dollars ($5,000) consisting of magazine subscriptions, conference registration fees and other similar purchases where prepayments are required;

K. municipalities having adopted home rule charters and having enacted their own purchasing ordinances;

L. the Albuquerque-Bernalillo county water utility authority having enacted its own purchasing ordinance;

[L.] M. the issuance, sale and delivery of public securities pursuant to the applicable authorizing statute, with the exception of bond attorneys and general financial consultants;

[M.] N. contracts entered into by a local public body with a private independent contractor for the operation, or provision and operation, of a jail pursuant to Sections 33-3-26 and 33-3-27 NMSA 1978;

[N.] O. contracts for maintenance of grounds and facilities at highway rest stops and other employment opportunities, excluding those intended for the direct care and support of persons with handicaps, entered into by state agencies with private, nonprofit, independent contractors who provide services to persons with handicaps;

[O.] P. contracts and expenditures for services or items of tangible personal property to be paid or compensated by money or other property transferred to New Mexico law enforcement agencies by the United States department of justice drug enforcement administration;

[P.] Q. contracts for retirement and other benefits pursuant to Sections 22-11-47 through 22-11-52 NMSA 1978;

[Q.] R. contracts with professional entertainers;

[R.] S. contracts and expenditures for litigation expenses in connection with proceedings before administrative agencies or state or federal courts, including experts, mediators, court reporters, process servers and witness fees, but not including attorney contracts; [and

S.] T. contracts for service relating to the design, engineering, financing, construction and acquisition of public improvements undertaken in improvement districts pursuant to Subsection L of Section 3-33-14.1 NMSA 1978 and in county improvement districts pursuant to Subsection L of Section 4-55A-12.1 NMSA 1978;

U. works of art for museums or for display in public buildings or places; and

V. contracts entered into by a local public body with a person, firm, organization, corporation, association or a state educational institution named in Article 12, Section 11 of the constitution of New Mexico for the operation and maintenance of a hospital pursuant to Chapter 3, Article 44 NMSA 1978, for the lease or operation of a county hospital pursuant to the Hospital Funding Act or for the operation and maintenance of a hospital pursuant to the Special Hospital District Act."

Section 26. Section 62-3-3 NMSA 1978 (being Laws 1967, Chapter 96, Section 3, as amended) is amended to read:

"62-3-3. DEFINITIONS.--Unless otherwise specified, when used in the Public Utility Act:

A. "affiliated interest" means a person who directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with a public utility. Control includes instances where a person is an officer, director, partner, trustee or person of similar status or function or owns directly or indirectly or has a beneficial interest in ten percent or more of any class of securities of a person;

B. "commission" means the public regulation commission;

C. "commissioner" means a member of the commission;

D. "municipality" means a municipal corporation organized under the laws of the state, [and] H-class counties and the Albuquerque-Bernalillo county water utility authority;

E. "person" means an individual, firm, partnership, company, rural electric cooperative organized under Laws 1937, Chapter 100 or the Rural Electric Cooperative Act, corporation or lessee, trustee or receiver appointed by any court. "Person" does not mean a class A county as described in Section 4-36-10 NMSA 1978 or a class B county as described in Section 4-36-8 NMSA 1978. "Person" does not mean a municipality as defined in this section unless the municipality has elected to come within the terms of the Public Utility Act as provided in Section 62-6-5 NMSA 1978. In the absence of voluntary election by a municipality to come within the provisions of the Public Utility Act, the municipality shall be expressly excluded from the operation of that act and from the operation of all its provisions, and no such municipality shall for any purpose be considered a public utility;

F. "securities" means stock, stock certificates, bonds, notes, debentures, mortgages or deeds of trust or other evidences of indebtedness issued, executed or assumed by a utility;

G. "public utility" or "utility" means every person not engaged solely in interstate business and, except as stated in Sections 62-3-4 and 62-3-4.1 NMSA 1978, that may own, operate, lease or control:

(1) any plant, property or facility for the generation, transmission or distribution, sale or furnishing to or for the public of electricity for light, heat or power or other uses;

(2) any plant, property or facility for the manufacture, storage, distribution, sale or furnishing to or for the public of natural or manufactured gas or mixed or liquefied petroleum gas for light, heat or power or other uses; but the term "public utility" or "utility" shall not include any plant, property or facility used for or in connection with the business of the manufacture, storage, distribution, sale or furnishing of liquefied petroleum gas in enclosed containers or tank truck for use by others than consumers who receive their supply through any pipeline system operating under municipal authority or franchise and distributing to the public;

(3) any plant, property or facility for the supplying, storage, distribution or furnishing to or for the public of water for manufacturing, municipal, domestic or other uses; provided, however, nothing contained in this paragraph shall be construed to apply to irrigation systems, the chief or principal business of which is to supply water for the purpose of irrigation;

(4) any plant, property or facility for the production, transmission, conveyance, delivery or furnishing to or for the public of steam for heat or power or other uses; or

(5) any plant, property or facility for the supplying and furnishing to or for the public of sanitary sewers for transmission and disposal of sewage produced by manufacturing, municipal, domestic or other uses; provided that the terms "public utility" or "utility" as used in the Public Utility Act do not include any utility owned or operated by a class A county as described in Section 4-36-10 NMSA 1978 either directly or through a corporation owned by or under contract with such a county;

H. "rate" means every rate, tariff, charge or other compensation for utility service rendered or to be rendered by a utility and every rule, regulation, practice, act, requirement or privilege in any way relating to such rate, tariff, charge or other compensation and any schedule or tariff or part of a schedule or tariff thereof;

I. "renewable energy" means electrical energy generated by means of a low- or zero-emission generation technology that has substantial long-term production potential and may include, without limitation, solar, wind, hydropower, geothermal, landfill gas, anaerobically digested waste biomass or fuel cells that are not fossil fueled. "Renewable energy" does not include fossil fuel or nuclear energy;

J. "service" or "service regulation" means every rule, regulation, practice, act or requirement relating to the service or facility of a utility;

K. "Class I transaction" means the sale, lease or provision of real property, water rights or other goods or services by an affiliated interest to a public utility with which it is affiliated or by a public utility to its affiliated interest;

L. "Class II transaction" means:

(1) the formation after May 19, 1982 of a corporate subsidiary by a public utility or a public utility holding company by a public utility or its affiliated interest;

(2) the direct acquisition of the voting securities or other direct ownership interests of a person by a public utility if such acquisition would make the utility the owner of ten percent or more of the voting securities or other direct ownership interests of that person;

(3) the agreement by a public utility to purchase securities or other ownership interest of a person other than a nonprofit corporation, contribute additional equity to, acquire additional equity interest in or pay or guarantee any bonds, notes, debentures, deeds of trust or other evidence of indebtedness of any such person; provided, however, that a public utility may honor all agreements entered into by such utility prior to May 19, 1982; or

(4) the divestiture by a public utility of any affiliated interest that is a corporate subsidiary of the public utility;

M. "corporate subsidiary" means any person ten percent or more of whose voting securities or other ownership interests are directly owned by a public utility; and

N. "public utility holding company" means an affiliated interest that controls a public utility through the direct or indirect ownership of voting securities of that public utility."

Section 27. TEMPORARY PROVISION--TRANSFER OF ASSETS--VALIDATION OF PRIOR TRANSFER.--The transfer of all functions, appropriations, money, records, equipment, other real and personal property, including water rights, and all other assets from Albuquerque to the Albuquerque-Bernalillo water utility authority pursuant to Section 72-1-10 NMSA 1978 is validated and confirmed. All functions, appropriations, money, records, equipment, other real and personal property, including water rights, and all other assets of the Albuquerque-Bernalillo water utility authority created pursuant to Section 72-1-10 NMSA 1978 are transferred to the Albuquerque-Bernalillo county water utility authority created pursuant to the Albuquerque-Bernalillo County Water Utility Authority Act. All debts of the Albuquerque-Bernalillo water utility authority created pursuant to Section 72-1-10 NMSA 1978 or debts of Albuquerque or its water and wastewater utility pertaining to Albuquerque's water and wastewater system shall be debts of the authority. Any outstanding public securities of the Albuquerque water and wastewater utility or the Albuquerque-Bernalillo water utility authority are validated and confirmed in accordance with the 1988 Public Securities Validation Act.

Section 28. REPEAL.--Section 72-1-10 NMSA 1978 (being Laws 2003, Chapter 437, Section 1) is repealed.

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