Download Zipped Enrolled WP 6.1 SB0114.ZIP 16,357 Bytes
[Introduced][Amended][Status][Bill Documents][Fiscal Note][Bills Directory]

S.B. 114 Enrolled

    

COMMERCIAL PROJECT ENTITIES

    
1997 GENERAL SESSION

    
STATE OF UTAH

    
Sponsor: Leonard M. Blackham

    AN ACT RELATING TO CITIES, COUNTIES, AND LOCAL TAXING UNITS; MODIFYING
    DEFINITIONS; MODIFYING THE ENERGY OUTPUT REQUIREMENT IN AN
    OFFER FOR A POWER SALES CONTRACT; MODIFYING THE REQUIREMENT
    FOR ENERGY OUTPUT AVAILABLE FOR USE WITHIN THE STATE;
    PROTECTING CERTAIN RECORDS RELATING TO COMMERCIAL PROJECT
    ENTITIES UNDER THE GOVERNMENT RECORDS ACCESS AND MANAGEMENT
    ACT; AND MAKING TECHNICAL CORRECTIONS.
    This act affects sections of Utah Code Annotated 1953 as follows:
    AMENDS:
         11-13-3, as last amended by Chapters 88 and 305, Laws of Utah 1995
         11-13-5.5, as last amended by Chapter 207, Laws of Utah 1996
         63-2-206, as last amended by Chapters 228 and 280, Laws of Utah 1992
         63-2-304, as last amended by Chapter 79, Laws of Utah 1996
    Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 11-13-3 is amended to read:
         11-13-3. Definitions.
        As used in this chapter:
        (1) "Board" means the Permanent Community Impact Fund Board created by Section
    9-4-304, and its successors.
        (2) "Candidate" means the state of Utah and any county, municipality, school district,
    prosecution district, special district, or any other political subdivision of the state of Utah or its
    authorized agent or any one or more of them.
        (3) "Commercial project entity" means a project entity, defined in Subsection (7), that:
        (a) has no taxing authority; and
        (b) is not supported in whole or in part by and does not expend or disburse tax revenues.


        [(3)] (4) "Direct impacts" [means] mean an increase in the need for any public facilities or
    services that is attributable to the project, except impacts resulting from the construction or operation
    of any facility owned by others that is used to furnish fuel, construction, or operation materials for
    use in the project.
        [(4)] (5) (a) "Facilities," "services," or "improvements" mean facilities, services, or
    improvements of any kind or character provided by a candidate with respect to any one or more of
    the following:
        (i) flood control;
        (ii) storm drainage;
        (iii) government administration;
        (iv) planning and zoning;
        (v) buildings and grounds;
        (vi) education;
        (vii) health care;
        (viii) parks and recreation;
        (ix) police and fire protection;
        (x) prosecution of violations of state criminal statutes;
        (xi) defense of individuals prosecuted for violations of state criminal statutes;
        (xii) transportation;
        (xiii) streets and roads;
        (xiv) utilities;
        (xv) culinary water;
        (xvi) sewage disposal;
        (xvii) social services;
        (xviii) solid waste disposal;
        (xix) economic development or new venture investment fund; and
        (xx) library.
        (b) "Facilities" and "improvements" [includes] include entire facilities and improvements

- 2 -


    or interests in facilities or improvements.
        [(5)] (6) "Project" means an electric generating and transmission project owned by a legal
    or administrative entity created under this chapter and shall include any electric generating facilities,
    transmission facilities, fuel or fuel transportation facilities, or water facilities owned by that entity
    and required for that project.
        [(6)] (7) "Project entity" means a legal or administrative entity created under this chapter
    which owns a project and which sells the capacity, services, or other benefits from it.
        [(7)] (8) "Public agency" means:
        (a) any political subdivision of this state including, but not limited to, cities, towns, counties,
    school districts, and special districts of various kinds;
        (b) the state of Utah or any department, division, or agency of the state of Utah;
        (c) any agency of the United States;
        (d) any political subdivision or agency of another state including any interlocal cooperation
    or joint powers agency formed under the authority of the law of another state; and
        (e) any Indian tribe, band, nation, or other organized group or community which is
    recognized as eligible for the special programs and services provided by the United States to Indians
    because of their status as Indians.
        [(8)] (9) "State" means a state of the United States and the District of Columbia.
        Section 2. Section 11-13-5.5 is amended to read:
         11-13-5.5. Contract by public agencies to create new entities to provide services --
     Powers and duties of new entities -- Generation of electricity.
        (1) Any two or more public agencies of Utah may agree to create a separate legal or
    administrative entity to accomplish the purpose of their joint or cooperative action, including the
    undertaking and financing of a facility or improvement to provide the service contemplated by that
    agreement.
        (2) (a) The separate legal or administrative entity created under the authority of this section
    is a political subdivision of Utah and may:
        (i) own, acquire, construct, operate, maintain, and repair or cause to be constructed, operated,

- 3 -


    maintained, and repaired any facility or improvement set forth in the agreement;
        (ii) borrow money, incur indebtedness, and issue revenue bonds or notes for the purposes
    for which it was created;
        (iii) offer, issue, and sell warrants, options, or other rights related to:
        (A) the bonds or notes issued by the entity; and
        (B) any rights or interests pertaining to the bonds or notes;
        (iv) assign, pledge, or otherwise convey as security for the payment of any bonded
    indebtedness, the revenues, and receipts from the facility, improvement, or service; or
        (v) sell or contract for the sale of the product of the service or other benefits from the facility
    or improvement to public agencies within or without the state on whatever terms that it considers
    to be in the best interest of its participants.
        (b) The assignment, pledge, or other conveyance specified in Subsection (2)(a)(iii) may rank
    prior in right to any other obligation except taxes or payments in lieu of taxes payable to the state
    or its political subdivisions.
        (3) (a) Any entity formed to construct any electrical generation facility shall, at least 150
    days before adoption of the bond resolution for financing the project, offer to enter into firm or
    withdrawable power sales contracts to suppliers of electric energy within Utah who are existing and
    furnishing services in this state at the time that the offer is made.
        (b) That offer must be:
        (i) accepted within 120 days from the date offered or it will be considered rejected; and
        (ii) for not less than 50% of its energy output.
        [(c) For any electrical generation facility for which construction begins after April 21, 1987,
    that offer shall be for not less than 25% of its energy output.]
        [(d)] (c) The demand by those electric energy suppliers or the amounts deliverable to any
    electric energy supplier or a combination of them may not exceed the amount allowable by the
    United States Internal Revenue Service in a way that would result in a change in or a loss of the tax
    exemption from federal income tax for the interest paid, or to be paid, under any bonds or
    indebtedness created or incurred by any entity formed under this section.

- 4 -


        [(e) In no event may the energy output available for use within this state be less than 20%
    of the total output.]
        [(f)] (d) For any electrical generation facility [for which construction begins after April 21,
    1987], the amount of energy output available within this state may not be less than 5% of the total
    output.
        (4) Subsection (3) applies only to the construction and operation of a facility to generate
    electricity.
        (5) Any entity formed to construct and operate facilities for the generation of electricity and
    any entity formed to facilitate the transmission or supply of electrical power under this section may
    include within the agreement creating the entity provisions authorizing any public agency located
    within a contiguous state to:
        (a) participate as a member of the project entity if it enters into an agreement in accordance
    with Section 11-13-11; and
        (b) vote on any issues affecting that public agency's interests, if the public agency enters into
    the agreement required by Subsection (5)(a).
        Section 3. Section 63-2-206 is amended to read:
         63-2-206. Sharing records.
        (1) A governmental entity may provide a record that is private, controlled, or protected to
    another governmental entity, a government-managed corporation, a political subdivision, the federal
    government, or another state if the requesting entity:
        (a) serves as a repository or archives for purposes of historical preservation, administrative
    maintenance, or destruction;
        (b) enforces, litigates, or investigates civil, criminal, or administrative law, and the record
    is necessary to a proceeding or investigation;
        (c) is authorized by state statute to conduct an audit and the record is needed for that
    purpose; or
        (d) is one that collects information for presentence, probationary, or parole purposes.
        (2) A governmental entity may provide a private or controlled record or record series to

- 5 -


    another governmental entity, a political subdivision, a government-managed corporation, the federal
    government, or another state if the requesting entity provides written assurance:
        (a) that the record or record series is necessary to the performance of the governmental
    entity's duties and functions;
        (b) that the record or record series will be used for a purpose similar to the purpose for which
    the information in the record or record series was collected or obtained; and
        (c) that the use of the record or record series produces a public benefit that outweighs the
    individual privacy right that protects the record or record series.
        (3) A governmental entity may provide a record or record series that is protected under
    Subsection 63-2-304(1) or (2) to another governmental entity, a political subdivision, a
    government-managed corporation, the federal government, or another state if:
        (a) the record is necessary to the performance of the requesting entity's duties and functions;
    or
        (b) the record will be used for a purpose similar to the purpose for which the information in
    the record or record series was collected or obtained.
        (4) (a) A governmental entity shall provide a private, controlled, or protected record to
    another governmental entity, a political subdivision, a government-managed corporation, the federal
    government, or another state if the requesting entity:
        [(a)] (i) is entitled by law to inspect the record; [or]
        [(b)] (ii) is required to inspect the record as a condition of participating in a state or federal
    program or for receiving state or federal funds[.]; or
        (iii) is an entity described in Subsection 63-2-206(1)(a), (b), (c), or (d).
        (b) Subsection (4)(a)(iii) applies only if the record is a record described in Subsection
    63-2-304(4).
        (5) Before disclosing a record or record series under this section to another governmental
    entity, another state, the United States, or a foreign government, the originating governmental entity
    shall:
        (a) inform the recipient of the record's classification and the accompanying restrictions on

- 6 -


    access; and
        (b) if the recipient is not a governmental entity to which this chapter applies, obtain the
    recipient's written agreement which may be by mechanical or electronic transmission that it will
    abide by those restrictions on access unless a statute, federal regulation, or interstate agreement
    otherwise governs the sharing of the record or record series.
        (6) A governmental entity may disclose a record to another state, the United States, or a
    foreign government for the reasons listed in Subsections (1), (2), and (3) without complying with
    the procedures of Subsection (2) or (5) if disclosure is authorized by executive agreement, treaty,
    federal statute, compact, federal regulation, or state statute.
        (7) A governmental entity receiving a record under this section is subject to the same
    restrictions on disclosure of the material as the originating entity.
        (8) Notwithstanding any other provision of this section, if a more specific court rule or order,
    state statute, federal statute, or federal regulation prohibits or requires sharing information, that rule,
    order, statute, or federal regulation controls.
        (9) The following records may not be shared under this section:
        (a) records held by the State Tax Commission that pertain to any person and that are
    gathered under authority of Title 59, Revenue and Taxation;
        (b) records held by the Division of Oil, Gas and Mining that pertain to any person and that
    are gathered under authority of Title 40, Chapter 6, Board and Division of Oil, Gas and Mining; and
        (c) records of publicly funded libraries as described in Subsection 63-2-302(1)(c).
        (10) Records that may evidence or relate to a violation of law may be disclosed to a
    government prosecutor, peace officer, or auditor.
        Section 4. Section 63-2-304 is amended to read:
         63-2-304. Protected records.
        The following records are protected if properly classified by a governmental entity:
        (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret has
    provided the governmental entity with the information specified in Section 63-2-308;
        (2) commercial information or nonindividual financial information obtained from a person

- 7 -


    if:
        (a) disclosure of the information could reasonably be expected to result in unfair competitive
    injury to the person submitting the information or would impair the ability of the governmental
    entity to obtain necessary information in the future;
        (b) the person submitting the information has a greater interest in prohibiting access than the
    public in obtaining access; and
        (c) the person submitting the information has provided the governmental entity with the
    information specified in Section 63-2-308;
        (3) commercial or financial information acquired or prepared by a governmental entity to
    the extent that disclosure would lead to financial speculations in currencies, securities, or
    commodities that will interfere with a planned transaction by the governmental entity or cause
    substantial financial injury to the governmental entity or state economy;
        (4) records the disclosure of which could cause commercial injury to, or confer a competitive
    advantage upon a potential or actual competitor of, a commercial project entity as defined in
    Subsection 11-13-3(3);
        [(4)] (5) test questions and answers to be used in future license, certification, registration,
    employment, or academic examinations;
        [(5)] (6) records the disclosure of which would impair governmental procurement
    proceedings or give an unfair advantage to any person proposing to enter into a contract or
    agreement with a governmental entity, except that this subsection does not restrict the right of a
    person to see bids submitted to or by a governmental entity after bidding has closed;
        [(6)] (7) records that would identify real property or the appraisal or estimated value of real
    or personal property, including intellectual property, under consideration for public acquisition
    before any rights to the property are acquired unless:
        (a) public interest in obtaining access to the information outweighs the governmental entity's
    need to acquire the property on the best terms possible;
        (b) the information has already been disclosed to persons not employed by or under a duty
    of confidentiality to the entity;

- 8 -


        (c) in the case of records that would identify property, potential sellers of the described
    property have already learned of the governmental entity's plans to acquire the property; or
        (d) in the case of records that would identify the appraisal or estimated value of property,
    the potential sellers have already learned of the governmental entity's estimated value of the
    property;
        [(7)] (8) records prepared in contemplation of sale, exchange, lease, rental, or other
    compensated transaction of real or personal property including intellectual property, which, if
    disclosed prior to completion of the transaction, would reveal the appraisal or estimated value of the
    subject property, unless:
        (a) the public interest in access outweighs the interests in restricting access, including the
    governmental entity's interest in maximizing the financial benefit of the transaction; or
        (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of the
    value of the subject property have already been disclosed to persons not employed by or under a duty
    of confidentiality to the entity;
        [(8)] (9) records created or maintained for civil, criminal, or administrative enforcement
    purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
    release of the records:
        (a) reasonably could be expected to interfere with investigations undertaken for enforcement,
    discipline, licensing, certification, or registration purposes;
        (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
    proceedings;
        (c) would create a danger of depriving a person of a right to a fair trial or impartial hearing;
        (d) reasonably could be expected to disclose the identity of a source who is not generally
    known outside of government and, in the case of a record compiled in the course of an investigation,
    disclose information furnished by a source not generally known outside of government if disclosure
    would compromise the source; or
        (e) reasonably could be expected to disclose investigative or audit techniques, procedures,
    policies, or orders not generally known outside of government if disclosure would interfere with

- 9 -


    enforcement or audit efforts;
        [(9)] (10) records the disclosure of which would jeopardize the life or safety of an individual;
        [(10)] (11) records the disclosure of which would jeopardize the security of governmental
    property, governmental programs, or governmental record-keeping systems from damage, theft, or
    other appropriation or use contrary to law or public policy;
        [(11)] (12) records that, if disclosed, would jeopardize the security or safety of a correctional
    facility, or records relating to incarceration, treatment, probation, or parole, that would interfere with
    the control and supervision of an offender's incarceration, treatment, probation, or parole;
        [(12)] (13) records that, if disclosed, would reveal recommendations made to the Board of
    Pardons and Parole by an employee of or contractor for the Department of Corrections, the Board
    of Pardons and Parole, or the Department of Human Services that are based on the employee's or
    contractor's supervision, diagnosis, or treatment of any person within the board's jurisdiction;
        [(13)] (14) records and audit workpapers that identify audit, collection, and operational
    procedures and methods used by the State Tax Commission, if disclosure would interfere with audits
    or collections;
        [(14)] (15) records of a governmental audit agency relating to an ongoing or planned audit
    until the final audit is released;
        [(15)] (16) records prepared by or on behalf of a governmental entity solely in anticipation
    of litigation that are not available under the rules of discovery;
        [(16)] (17) records disclosing an attorney's work product, including the mental impressions
    or legal theories of an attorney or other representative of a governmental entity concerning litigation;
        [(17)] (18) records of communications between a governmental entity and an attorney
    representing, retained, or employed by the governmental entity if the communications would be
    privileged as provided in Section 78-24-8;
        [(18)] (19) personal files of a legislator, including personal correspondence to or from a
    member of the Legislature, but not correspondence that gives notice of legislative action or policy;
        [(19)] (20) (a) records in the custody or control of the Office of Legislative Research and
    General Counsel, that, if disclosed, would reveal a particular legislator's contemplated legislation

- 10 -


    or contemplated course of action before the legislator has elected to support the legislation or course
    of action, or made the legislation or course of action public; and
        (b) for purposes of this subsection, a "Request For Legislation" submitted to the Office of
    Legislative Research and General Counsel is a public document unless a legislator submits the
    "Request For Legislation" with a request that it be maintained as a protected record until such time
    as the legislator elects to make the legislation or course of action public;
        [(20)] (21) research requests from legislators to the Office of Legislative Research and
    General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared in
    response to these requests;
        [(21)] (22) drafts, unless otherwise classified as public;
        [(22)] (23) records concerning a governmental entity's strategy about collective bargaining
    or pending litigation;
        [(23)] (24) records of investigations of loss occurrences and analyses of loss occurrences that
    may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the Uninsured
    Employers' Fund, or similar divisions in other governmental entities;
        [(24)] (25) records, other than personnel evaluations, that contain a personal
    recommendation concerning an individual if disclosure would constitute a clearly unwarranted
    invasion of personal privacy, or disclosure is not in the public interest;
        [(25)] (26) records that reveal the location of historic, prehistoric, paleontological, or
    biological resources that if known would jeopardize the security of those resources or of valuable
    historic, scientific, educational, or cultural information;
        [(26)] (27) records of independent state agencies if the disclosure of the records would
    conflict with the fiduciary obligations of the agency;
        [(27)] (28) records of a public institution of higher education regarding tenure evaluations,
    appointments, applications for admissions, retention decisions, and promotions, which could be
    properly discussed in a meeting closed in accordance with Title 52, Chapter 4, Open and Public
    Meetings, provided that records of the final decisions about tenure, appointments, retention,
    promotions, or those students admitted, may not be classified as protected under this section;

- 11 -


        [(28)] (29) records of the governor's office, including budget recommendations, legislative
    proposals, and policy statements, that if disclosed would reveal the governor's contemplated policies
    or contemplated courses of action before the governor has implemented or rejected those policies
    or courses of action or made them public;
        [(29)] (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
    revenue estimates, and fiscal notes of proposed legislation before issuance of the final
    recommendations in these areas;
        [(30)] (31) records provided by the United States or by a government entity outside the state
    that are given to the governmental entity with a requirement that they be managed as protected
    records if the providing entity certifies that the record would not be subject to public disclosure if
    retained by it;
        [(31)] (32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
    except as provided in Section 52-4-7[, Open and Public Meetings];
        [(32)] (33) records that would reveal the contents of settlement negotiations but not
    including final settlements or empirical data to the extent that they are not otherwise exempt from
    disclosure;
        [(33)] (34) memoranda prepared by staff and used in the decision-making process by an
    administrative law judge, a member of the Board of Pardons and Parole, or a member of any other
    body charged by law with performing a quasi-judicial function;
        [(34)] (35) records that would reveal negotiations regarding assistance or incentives offered
    by or requested from a governmental entity for the purpose of encouraging a person to expand or
    locate a business in Utah, but only if disclosure would result in actual economic harm to the person
    or place the governmental entity at a competitive disadvantage, but this section may not be used to
    restrict access to a record evidencing a final contract;
        [(35)] (36) materials to which access must be limited for purposes of securing or maintaining
    the governmental entity's proprietary protection of intellectual property rights including patents,
    copyrights, and trade secrets;
        [(36)] (37) the name of a donor or a prospective donor to a governmental entity, including

- 12 -


    a public institution of higher education, and other information concerning the donation that could
    reasonably be expected to reveal the identity of the donor, provided that:
        (a) the donor requests anonymity in writing;
        (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
    classified protected by the governmental entity under this subsection; and
        (c) except for public institutions of higher education, the governmental unit to which the
    donation is made is primarily engaged in educational, charitable, or artistic endeavors, and has no
    regulatory or legislative authority over the donor, a member of his immediate family, or any entity
    owned or controlled by the donor or his immediate family; and
        [(37)] (38) the following records of a public institution of education, which have been
    developed, discovered, or received by or on behalf of faculty, staff, employees, or students of the
    institution: unpublished lecture notes, unpublished research notes and data, unpublished manuscripts,
    creative works in process, scholarly correspondence, and confidential information contained in
    research proposals. Nothing in this subsection shall be construed to affect the ownership of a record.

- 13 -


[Bill Documents][Bills Directory]