The authority may exercise the following duties, privileges, immunities, rights, liabilities and disabilities appertaining to a public body politic and corporate and constituting a quasi-municipal corporation and political subdivision of the state established as an instrumentality exercising public and essential governmental and proprietary functions to provide for the public health, safety and general welfare:
A. have perpetual existence and succession;
B. adopt, have and use a corporate seal and alter the same at pleasure;
C. sue and be sued and be a party to suits, actions and proceedings;
D. commence, maintain, intervene in, defend, compromise, terminate by settlement or otherwise, and otherwise participate in, and assume the cost and expense of, any and all actions and proceedings now or hereafter begun and appertaining to the authority, its board, its officers, agents or employees, or any of the authority's duties, privileges, immunities, rights, liabilities and disabilities, or the authority's flood control system, other property of the authority or any project;
E. enter into contracts and agreements, including contracts with the federal government, the state and any other public body;
F. borrow money and issue securities evidencing any loan to or amount due by the authority, provide for and secure the payment of any securities and the rights of the holders thereof, and purchase, hold and dispose of securities, as hereinafter provided;
G. refund any loan or obligation of the authority and issue refunding securities to evidence such loan or obligation without any election;
H. purchase, trade, exchange, encumber and otherwise acquire, maintain and dispose of property and interests therein;
I. levy and cause to be collected general (ad valorem) taxes on all property subject to property taxation within the authority; provided that the total tax levy, excluding any levy for the payment of any debt of the authority authorized pursuant to the Arroyo Flood Control Act, for any fiscal year shall not exceed an aggregate total of fifty cents ($.50), or any lower amount required by operation of the rate limitation provisions of Section 7-37-7.1 NMSA 1978 upon this tax levy, for each one thousand dollars ($1,000) of net taxable value, as that term is defined in the Property Tax Code [Chapter 7, Articles 35 to 38 NMSA 1978], by certifying, on or before the fifteenth day of July in each year in which the board determines to levy a tax, to the board of county commissioners of Bernalillo county, or by such other date as the laws of the state may prescribe to such other body having authority to levy taxes within each county wherein the authority has any territory, the rate so fixed, with directions that, at the time and in the manner required by law for levying taxes for other purposes, such body having authority to levy taxes shall levy the tax upon the net taxable value of all property subject to property taxation within the authority, in addition to such other taxes as may be levied by such body, as provided in Sections 72-16-23 through 72-16-27 NMSA 1978. No taxes may be levied and collected for any purpose, or any contract made, until a bond issue has been submitted to and approved by the qualified electors as hereinafter provided;
J. hire and retain officers, agents, employees, engineers, attorneys and any other persons, permanent or temporary, necessary or desirable to effect the purposes hereof, defray any expenses incurred thereby in connection with the authority, and acquire office space, equipment, services, supplies, fire and extended coverage insurance, use and occupancy insurance, workers' compensation insurance, property damage insurance, public liability insurance for the authority and its officers, agents and employees, and other types of insurance, as the board may determine; provided, however, that no provision herein authorizing the acquisition of insurance shall be construed as waiving any immunity of the authority or any director, officer or agent thereof and otherwise existing under the laws of the state;
K. condemn property for public use;
L. acquire, improve, equip, hold, operate, maintain and dispose of a flood control system, storm sewer facilities, project and appurtenant works, or any interest therein, wholly within the authority, or partially within and partially without the authority, and wholly within, wholly without or partially within and partially without any public body all or any part of the area of which is situated within the authority;
M. pay or otherwise defray the cost of any project;
N. pay or otherwise defray and contract so to pay or defray, for any term not exceeding fifty years, without an election, except as hereinafter otherwise provided, the principal of, any interest on, and any other charges appertaining to, any securities or other obligations of the federal government or any public body or person incurred in connection with any such property so acquired by the authority;
O. establish and maintain facilities within or without the authority, across or along any public street, highway, bridge, viaduct or other public right of way, or in, upon, under or over any vacant public lands, which public lands are now, or may become, the property of the state, or across any stream of water or water course, without first obtaining a franchise from the municipality, county or other public body having jurisdiction over the same; provided that the authority shall cooperate with any public body having such jurisdiction, shall promptly restore any such street, highway, bridge, viaduct or other public right of way to its former state of usefulness as nearly as may be and shall not use the same in such manner as to impair completely or unnecessarily the usefulness thereof;
P. deposit any money of the authority, subject to the limitations in Article 8, Section 4 of the constitution of New Mexico, in any banking institution within or without the state and secured in such manner and subject to such terms and conditions as the board may determine, with or without the payment of any interest on any such deposit;
Q. invest any surplus money in the authority treasury, including such money in any sinking or reserve fund established for the purpose of retiring any securities of the authority, not required for the immediate necessities of the authority, in its own securities or in federal securities, by direct purchase of any issue of such securities, or part thereof, at the original sale of the same, or by the subsequent purchase of such securities;
R. sell any such securities thus purchased and held, from time to time;
S. reinvest the proceeds of any such sale in other securities of the authority or in federal securities, as provided in Subsection Q of this section;
T. sell in season from time to time such securities thus purchased and held, so that the proceeds may be applied to the purposes for which the money with which such securities were originally purchased was placed in the treasury of the authority;
U. accept contributions or loans from the federal government for the purpose of financing the planning, acquisition, improvement, equipment, maintenance and operation of any enterprise in which the authority is authorized to engage, and enter into contracts and cooperate with, and accept cooperation and participation from, the federal government for these purposes;
V. enter, without any election, into joint operating or service contracts and agreements, acquisition, improvement, equipment or disposal contracts or other arrangements, for any term not exceeding fifty years, with the federal government, any public body or any person concerning storm sewer facilities, or any project, whether acquired by the authority or by the federal government, any public body or any person, and accept grants and contributions from the federal government, any public body or any person in connection therewith;
W. enter into and perform, without any election, when determined by the board to be in the public interest and necessary for the protection of the public health, contracts and agreements, for any term not exceeding fifty years, with the federal government, any public body or any person for the provision and operation by the authority of storm sewer facilities;
X. enter into and perform, without any election, contracts and agreements with the federal government, any public body or any person for or concerning the planning, construction, lease or other acquisition, improvement, equipment, operation, maintenance, disposal, and the financing of any project, including any contract or agreement for any term not exceeding fifty years;
Y. enter upon any land, make surveys, borings, soundings and examinations for the purposes of the authority, and locate the necessary works of any project and roadways and other rights of way appertaining to any project herein authorized; acquire all property necessary or convenient for the acquisition, improvement or equipment of such works;
Z. cooperate with and act in conjunction with the state, or any of its engineers, officers, boards, commissions or departments, or with the federal government or any of its engineers, officers, boards, commissions or departments, or with any other public body or any person in the acquisition, improvement or equipment of any project for the controlling of flood or storm waters of the authority, or for the protection of life or property therein, or for any other works, acts or purposes provided for herein, and adopt and carry out any definite plan or system of work for any such purpose;
AA. cooperate with the federal government or any public body by an agreement therewith by which the authority may:
(1) acquire and provide, without cost to the operating entity, the land, easements and rights of way necessary for the acquisition, improvement or equipment of the flood control system or any project;
(2) hold and save harmless the cooperating entity free from any claim for damages arising from the acquisition, improvement, equipment, maintenance and operation of the flood control system or any project;
(3) maintain and operate any project in accordance with regulations prescribed by the cooperating entity; and
(4) establish and enforce flood channel limits and regulations, if any, satisfactory to the cooperating entity;
BB. carry on technical and other investigations of all kinds, make measurements, collect data and make analyses, studies and inspections pertaining to control of floods, sewer facilities, and any project, both within and without the authority, and for this purpose the authority has the right of access through its authorized representative to all lands and premises within the state;
CC. have the right to provide from revenues or other available funds an adequate fund for the improvement and equipment of the authority's flood control system or of any parts of the works and properties of the authority;
DD. prescribe and enforce reasonable rules and regulations for the prevention of further encroachment upon existing defined waterways, by their enlargement or other modification, for additional waterway facilities to prevent flooding;
EE. require any person desiring to make a connection to any storm water drain or flood control facility of the authority or to cause storm waters to be emptied into any ditch, drain, canal, floodway or other appurtenant structure of the authority firstly to make application to the board to make the connection, to require the connection to be made in such manner as the board may direct;
FF. refuse, if reasonably justified by the circumstances, permission to make any connection designated in Subsection DD or Subsection EE of this section;
GG. make and keep records in connection with any project or otherwise concerning the authority;
HH. arbitrate any differences arising in connection with any project or otherwise concerning the authority;
II. have the management, control and supervision of all the business and affairs appertaining to any project herein authorized, or otherwise concerning the authority, and of the acquisition, improvement, equipment, operation and maintenance of any such project;
JJ. prescribe the duties of officers, agents, employees and other persons and fix their compensation; provided that the compensation of employees and officers shall be established at prevailing rates of pay for equivalent work;
KK. enter into contracts of indemnity and guaranty, in such form as may be approved by the board, relating to or connected with the performance of any contract or agreement that the authority is empowered to enter into under the provisions hereof or of any other law of the state;
LL. provide, by any contract for any term not exceeding fifty years, or otherwise, without an election:
(1) for the joint use of personnel, equipment and facilities of the authority and any public body, including without limitation public buildings constructed by or under the supervision of the board of the authority or the governing body of the public body concerned, upon such terms and agreements and within such areas within the authority as may be determined, for the promotion and protection of health, comfort, safety, life, welfare and property of the inhabitants of the authority and any such public body; and
(2) for the joint employment of clerks, stenographers and other employees appertaining to any project, now existing or hereafter established in the authority, upon such terms and conditions as may be determined for the equitable apportionment of the expenses therefrom resulting;
MM. obtain financial statements, appraisals, economic feasibility reports and valuations of any type appertaining to any project or any property pertaining thereto;
NN. adopt any resolution authorizing a project or the issuance of securities, or both, or otherwise appertaining thereto, or otherwise concerning the authority;
OO. make and execute a mortgage, deed of trust, indenture or other trust instrument appertaining to a project or to any securities herein authorized, or to both, except as provided in Subsection PP of this section and in Section 72-16-54 NMSA 1978;
PP. make all contracts, execute all instruments and do all things necessary or convenient in the exercise of the powers granted herein, or in the performance of the authority's covenants or duties, or in order to secure the payment of its securities; provided that no encumbrance, mortgage or other pledge of property, excluding any money, of the authority is created thereby; and provided further that no property, excluding money, of the authority is liable to be forfeited or taken in payment of such securities;
QQ. have and exercise all rights and powers necessary or incidental to or implied from the specific powers granted herein, which specific powers shall not be considered as a limitation upon any power necessary or appropriate to carry out the purposes and intent hereof; and
RR. exercise all or any part or combination of the powers herein granted.
History: 1953 Comp., § 75-36-22, enacted by Laws 1963, ch. 311, § 22; 1985, ch. 190, § 3; 1986, ch. 32, § 30; 2018, ch. 79, § 107.
ANNOTATIONSThe 2018 amendment, effective July 1, 2018, made minor technical changes throughout the section; in Subsection I, deleted "taxpaying" and added "qualified" preceding "electors"; in Subsection J, deleted "workmen's" and added "workers'" preceding "compensation insurance"; in Subsection N, after "federal government", added "or"; in Subsection X, after "including", deleted "but not necessarily limited to"; and in Subsection PP, after "and provided", added "further that".
The 1986 amendment, in Subsection I, substituted "property subject to property taxation" for "taxable property," inserted "excluding any levy for the payment of debt of the authority authorized pursuant to the Arroyo Flood Control Act", substituted "fifty cents ($.50), or any lower amount required by operation of the rate limitation provisions of Section 7-37-7.1 NMSA 1978 upon this tax levy, for each one thousand dollars ($1,000) of net taxable value, as that term is defined in the Property Tax Code" for "one-half of one mill, excluding any levy for the payment of any debt of the authority authorized pursuant to the Arroyo Flood Control Act", "fifteenth day of July" for "first Monday in September," and "the tax upon the net taxable value of all property subject to property taxation" for "such tax upon the assessed valuation of all taxable property"; and made minor stylistic changes.
The 1985 amendment, effective June 14, 1985, combined the former introductory paragraph and Subsection A, deleting "powers" preceding "duties, privileges", redesignated former Subsections B through SS as present Subsections A through RR, substituted "pursuant to the Arroyo Flood Control Act" for "by the taxpaying electors of the authority" near the beginning, "Sections 72-16-23 through 72-16-27 NMSA 1978" for "Sections 23 to 27 both inclusive, hereof", and "or any contract made" for "nor any contract made" and deleted "and after" preceding "a bond issue has been submitted to" in Subsection I, inserted "storm" preceding "sewer facilities" near the beginning of Subsection L, substituted "money" for "moneys" near the beginning of Subsection P, substituted "Subsection Q of this section" for "Subsection R hereof" at the end of Subsection S, inserted "storm" preceding "sewer facilities" near the middle of Subsection V and near the end of Subsection W, substituted "such works" for "said works" at the end of Subsection Y, substituted "Subsection DD or Subsection EE of this section" for "Subsection EE or Subsection FF of this section 22 hereof" at the end of Subsection FF, substituted "provided in Subsection PP of this section and in Section 72-16-54 NMSA 1978" for "provided herein in Subsection QQ of this section 22 and in Section 54 hereof" at the end of Subsection OO, and substituted "authority" for "district" and "such securities" for "said securities" near the end of Subsection PP.
Authorized tax in reality assessment. — The tax authorized by Subsection J (now Subsection I) of this section is in reality an assessment because it is levied solely for the purpose of operating the flood control system which enhances the value of, protects, improves and otherwise specially benefits only that portion of land included within the Albuquerque flood control authority. 1964 Op. Att'y Gen. No. 64-90 (rendered under prior law).
While this provision denominates the levy a "tax," it actually is not. It is a special assessment. 1965 Op. Att'y Gen. No. 65-182 (rendered under prior law).
Tax not subject to constitutional limitation. — The "1/2 of one mill" property tax (now $.50 for each $1,000 of net taxable value) which the Albuquerque flood control authority may levy pursuant to Subsection J (now Subsection I) of this section is not a general tax, but a benefit assessment, and hence is not subject to the 20 mill limitation of N.M. Const., art. VIII, § 2. 1964 Op. Att'y Gen. No. 64-90 (rendered under prior law).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 52A C.J.S. Levees and Flood Control § 24.