TITLE 18 TRANSPORTATION
AND HIGHWAYS
CHAPTER 1 TRANSPORTATION
GENERAL PROVISIONS
PART 6 LEASING
OF REAL PROPERTY FOR COMMERCIAL PURPOSES
18.1.6.1 ISSUING
AGENCY: New Mexico Department of Transportation - P.O.
Box 1149, Santa Fe, New Mexico 87504-1149.
[18.1.6.1 NMAC - N,
11/15/05]
18.1.6.2 SCOPE: General
public interested in conducting commercial activities on department land.
[18.1.6.2 NMAC - N,
11/15/05]
18.1.6.3 STATUTORY
AUTHORITY: This regulation is adopted pursuant to NMSA
1978, Section 67-3-12G and NMSA 1978, Section 67-11-9.
[18.1.6.3 NMAC - N,
11/15/05]
18.1.6.4 DURATION:
Permanent.
[18.1.6.4 NMAC - N,
11/15/05]
18.1.6.5 EFFECTIVE
DATE: November 15, 2005, unless a later date is
cited at the end of a section.
[18.1.6.5 NMAC - N,
11/15/05]
18.1.6.6 OBJECTIVE: The
purpose of this regulation is to establish procedures for the conduct,
permitting or authorization of commercial enterprises or activities on
department land.
[18.1.6.6 NMAC - N,
11/15/05]
18.1.6.7 DEFINITIONS:
A. "Commission" means the New
Mexico state transportation commission.
B. "Department" means the New Mexico department of
transportation.
C. "Department land" means New Mexico state transportation
commission or New Mexico department of transportation owned land or land leased
to or from the state of New Mexico.
D. "Determination" means the written documentation of a
decision by the secretary or his or her designee including findings of fact
required to support a decision. A
determination becomes part of the department record for the commercial
enterprise or activity.
E. "Person" means any individual, firm, corporation,
company, joint venture, voluntary association, partnership, trust, or unincorporated
organization, or combination thereof.
F. "Public entity" means any entity as defined by NMSA 1978,
Section 11-1-2 of the Joint Powers Agreements Act (NMSA 1978, 11-1-1 to 11-1-7).
G. "Secretary" means the New Mexico secretary of
transportation or his or her designee.
[18.1.6.7 NMAC - N,
11/15/05]
18.1.6.8 COMMERCIAL
ENTERPRISES AND ACTIVITIES:
A. This rule provides for commercial enterprises or activities on
department land where such development or activities is in the best interest of
the department and serves the public interest.
Since commercial use of department property generates proceeds or
payments which will be deposited into the state road fund and may have other
benefits to the department or the public, such uses are transportation, highway
or department uses or purposes and do not constitute a determination that the
property involved is excess of the department's needs or uses. This rule shall not apply to any lease or
agreement between the department and a public entity for non-commercial
purposes or use, nor shall it apply to commercial leases of department land
made pursuant to acquisition of property for right-of-way purposes under the
eminent domain code or special alternative condemnation procedure, for air
space agreements, oil and gas leases, employee housing arrangements or
residential leases of department property, including leases to security or law
enforcement personnel.
B. Authorized Use: In
furtherance of commercial enterprises or activities on department land for the
purpose of providing goods and services to the users of the property or
facilities or for generating payments to the state road fund, the department
may sell, exchange, or lease department property and may use any other powers
granted to it by law. Any commercial
enterprise or activity is authorized so long as it is in the department's best
interest or serves the public interest.
The department shall report all proposed commercial activity to the
commission at its regularly scheduled meetings.
The commission retains the authority to approve, disapprove and modify
all proposed commercial activity.
C. Determination Required: Prior
to the conduct or authorization of commercial enterprises or activities on
department land, the secretary shall determine that the commercial enterprise
or activity is in the best interest of the department or serves the public
interest. This determination shall be
approved by the commission and, once so approved, shall be a final action by
the department. This determination shall
be in writing and shall include:
(1) a description of the commercial enterprise
or activity to be authorized;
(2) a description of the department land to be
used for the commercial enterprise or activity;
(3) the form of the commercial enterprise or activity,
e.g. whether conducted by the department or by a person through license, permit
or other appropriate authorization granted by the department;
(4) the nature of any agreements into which
the department will enter to accomplish the commercial enterprise or activity;
(5) the method of establishing the commercial
enterprise or activity, e.g. through competitive proposal process or otherwise;
(6) if the commercial enterprise or activity
is not established through a competitive process, the reasons that a
competitive process was not chosen; and
(7) a statement as to why the commercial
enterprise or activity is in the best interest of the department or serves the
public interest.
D. Competition Favored: It is
the policy of the commission and the department to provide fair access to
persons who are able to conduct the commercial enterprises and activities
contemplated by this rule. As a result,
whenever practicable, the department shall pursue such commercial enterprises
and activities through a competitive process.
The department may adopt a competitive process for conducting commercial
leasing which will be governed by the Procurement Code (NMSA 1978, Section
13-1-28 through Section 13-1-199) and applicable regulations. Otherwise, any other appropriate competitive
process may be used. Any competitive
process used, other than the Procurement Code and applicable regulations, must
contain provision for any aggrieved competitor to protest the final award. When a competitive process is impracticable
or otherwise against the best interest of the department, the secretary shall
so determine and provide in writing the reasons that a competitive process is
not used.
E. Record of Action: For
each commercial enterprise or activity established pursuant to this rule, the
department shall keep a record of action.
The record shall contain the determination required in paragraph C and
any contracts, agreements, licenses, permits or other authorizations entered
into by the department as a result of that determination. This record shall be available for public
inspection to the extent required by law.
F. Proceeds: Any
proceeds or payments that are derived from these activities shall be deposited
into the state road fund.
[18.1.6.8 NMAC - N,
11/15/05]
HISTORY OF 18.1.6 NMAC:
[RESERVED]