; Work Session November 30_ 2010
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Work Session November 30_ 2010


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									Work Session                                                            November 30, 2010

The Board of County Commissioners, in and for the County of Otero, State of New Mexico, met in a

Regular Meeting at the Otero County Administration Building in Alamogordo, County and State aforesaid.

Meeting called to order by the Chairman at 6:00 p.m., 2010; and he announced that reasonable notice for

this meeting was given to the Alamogordo Daily News, and to Radio Stations, KPSA, KINN and KYEE.


       Doug Moore                           Chairman

       Clarissa McGinn                      Vice-Chairperson

       Ronny Rardin                         Member

       Ray Backstrom                        County Manager

       Dan Bryant                           County Attorney

       Sharon Hill                          Commission Liaison

       Lynn Estrada                         Deputy Clerk

       Commissioner Rardin gave the invocation. Commissioner McGinn led the Pledge of Allegiance

and the Salute to the Flag of the State of New Mexico.

       Janet White, Chairman of the Tea Party presented the Board of County Commissioners with a

First Amendment Wall Flag that was produced for the Otero County Tea Party Patriots.

       Commissioner Moore thanked Ms. White for the Wall Flag.

       1. Public Hearings:

       Commissioner Moore called the Public Hearing for Pisa Estates Subdivision containing 170 lots

and located approximately 55 miles south of Alamogordo. The Chairman recessed this item and called

to order the Public Hearing to discuss and consider approving Ordinance 10-09 to create an

Environmental Department within Otero County. The Chairman recessed the Public Hearing on

Ordinance 10-09 and reconvened the Public Hearing for the proposed Pisa Estates Subdivision.

       a. Diane Romo, Planning Coordinator, and Marvin McGee from McGee and Associates

approached the Board. Mr. McGee stated that on behalf of the client we are requesting the approval of

the Pisa Estates Subdivision located in Chaparral, New Mexico. This is a 170 proposed subdivision

and will tie into the existing community. The subdivision has been through the Planning Commission

and has received their recommended approval.

       Commissioner Moore stated that you have submitted all your documentation to the State

agencies including the State Engineer. Ms. Romo stated that all the required agencies have given their


       Commissioner Rardin made a motion to approve Pisa Estates Subdivision. The motion was

seconded by Commissioner McGinn. A vote was taken and the motion passed unanimously.

       The Chairman closed the Public Hearing on Pisa Estates Subdivision and reconvened the Public

Hearing on Ordinance 10-09 to create a Environment Department within Otero County.

       The following spoke on Ordinance 10-09;

            a. Bob Wood stated that he is a member of the committee that was established by

Commissioner Rardin and sanctioned by the Commission to develop a draft ordinance that would

establish a Otero County Environment Department. Mr. Wood and his wife voluntarily participated in

the ground work for the creation of this department due to numerous requests from Food Operators,

Realtors and other Otero County residents that have been adversely affected by the poor judgment of

the New Mexico State Environment Department. During the first public hearing it was clear the Otero

County residents were in need of assistance in trying to cope with the continued problems encountered

dealing with the New Mexico Environment Department. It was made clear that the State is staffed with

inexperienced Environmentalist that exhibited poor judgment in administering the New Mexico

Environment Regulations. The actions of the New Mexico Environmentalists resulted in significant

financial losses to area realtors, food service establishments, liquid waste installers and homeowners

throughout Otero County. The issues from the first meeting that remain unresolved were whether the

County could afford the cost of an Environment Department and what the liability might be. Mr. Wood

does not know anything about the liability or the insurance. The first figures that were quoted by the

NMSED were exaggerated or were definitely in error. An example NMED estimate for a vehicle lease,

maintenance, insurance and gasoline is $80,000.00 a year. This is quite ridiculous. New Mexico

currently has only two vehicles assigned to the two environmentalists in the local office. The lease for

these two vehicles with insurance, maintenance and fuel is $14,100.00 a year. The revenues suggested

by NMED that they receive from liquid waste, food services and swimming pools, were significantly

lower than what is real. Their estimate of $100.00 per permit for 2009, they are saying they issued 230

liquid waste permits and the number we got from the State was 354. Instead of $223,000.00 revenue it

would have been $35,200.00. There are errors throughout their estimates. If the County opens this

department and the revenues were less than $100,000.00 then the County could be faced with a possible

subsidy of $30,000.00 to $50,000.00 a year if things don’t change. One of the things we don’t want to

see is an increase of fees to the residents. We conducted a survey of one of the companies that do

property closings outside of the City limits which suggest that they were using onsite waste water

treatment. In the year 2009 the State said they did 300 property inspections and there was 200 they

didn’t do. That is a significant amount of money they overlooked. In 2005 the law passed for property

transfer inspections and this was an opportunity to identify failed systems. In the United States it was

estimated 20 percent of all installed systems were probably bad. Property transfer inspections are an

important part of the Environment push to try and protect our ground water. NMED has failed in not

capturing enough of these. If the County did their own inspections and charged $100.00 for each

inspection which they charge for a permit now and we did 500 inspections that would be $50,000.00 in

a year time. This would more than make up the difference and the County department could be self

sufficient in terms of expenses versus revenues. Mr. Wood believes it would be in the best interest of

the County to pass this ordinance if the people of the County were 100 percent behind it. We don’t

know what is going to happen with the new Governor coming into office and restructuring. It is

possible that some time next year residents may be having to deal with Las Cruces, Albuquerque or

Santa Fe because of budget cuts, they will have to close the local office.

       Commissioner McGinn stated that when the committee was looking at all the different costs,

one of the things that was brought up at the last Public Hearing was about the education and training

that was required for the Environment Department. If we said today we are going to start this

Environment Department for the County to run, how soon and what cost could those inspectors come

on board to work for the County to do these tasks? Mr. Wood stated that it would depend on whether

the County hired them as employees. To start the department you would have to hire someone who has

all the appropriate credentials.

       Commissioner Rardin stated that we hired a consultant, Dave Kirby. His figures were about

$140,000.00 and those figures are real close to what our committee came up with.

       Commissioner Moore stated that he would like to clarify for the folks in the audience. What the

public hearing is about tonight is Ordinance 10-09. We have had more than one public hearing. In the

past we have seated a Board and we have asked the folks to give us a budget. We have thrown the cost

of this department back and forth. It is a little bit off point of the discussion for the consideration of the

ordinance, but it is pertinent to the issue. He is going to allow the discussion about the money and the

budget. The concern is if we start this Department how much will it cost the County residents to start it

and how much of that money could be recouped through the fees. That’s the discussion you have heard

from Mr. Wood.

        Mr. Kirby stated that the fees generated would be at the current permit rates, $101,950.00 per

year. The total cost of equipping the department is $11,054.11 per year and this includes $1,355.00 a

year for training.

        Commissioner Moore stated that for the audience who aren’t familiar with these two gentlemen,

Dave Kirby and Bob Wood, they are past employees of the State Environment Department. We asked

their expertise as we tried to develop this department. So there is no misunderstanding, these

gentlemen have helped us as we try to move forward with this process. What the Commission has done

is tentatively set aside $300,000.00 for the development for this department. As we have had hearings

and asked folks to help us, we believe the numbers we are hearing it looks like it is going to cost us

about $150,000.00 to $160,000.00 the first year to get started. It looks like we may be able to generate

about $100,000.00 the first year to stand this program up. It will operate in a deficit position for the

first year and possibly more, in a shortfall of the revenues it can generate versus the cost to stand the

program up. Commissioner Moore just wants to clear where we are at in this discussion. We are not

going to change the regulations, we would still enforce the State requirements, but we could do so with

a little more diplomacy than what we have been subjected to for the last year and a half.

        Mr. Kirby stated that he would like to make a comment on the basis for the County considering

in taking over the Environment Department. If the County takes over there will be no less of public

safety in any of the three programs. Based on information provided to him by businesses in the County,

safety would be enhanced. Hassle and loss of money to the County and the City would be reduced.

          Commissioner McGinn stated that the service is only as good as the people that are providing it.

It begs the question, will that change by bringing it into the County? Her suggestion would be in an

ordinance, is that we’re trying to bring this closer to the public by bringing it into the County

government. A lot of people have commented that they can’t get any resolution or can’t get their

complaint heard at the State level. If we are going to say it’s going to be better because, why, we are

going to have different people? Commissioner McGinn’s suggestion is that there is some kind of

recourse for people to come to the Board of County Commissioners to have their complaints heard if

they have difficulty with the Environment Department once it’s in the County.

          Mr. Wood stated that it was stated in the draft ordinance the complaint process. In the State side

there is no relief of any kind. That is one of the main reasons for bringing it closer to the people within

the County is that we have County Commissioners that we elect that we can bring complaints to.

          Commissioner Rardin stated under the Constitution Article 2, Section 2 and 3 says that we have

the right to self government. Under the bureaucratic system of the State, it’s not a self government but

a bureaucratic government. We have a County Manager and if that doesn’t work, we have County

Commissioners to hear the complaints. We won’t be lessening up the rules or regulations in any way,

but maybe restricting them even harder in some areas. The whole intent of the ordinance today is by the


          Commissioner Moore stated that to address this issue he does not see within the draft ordinance

an appeals process that would name the Board of County Commissioners as the appellate.

Commissioner Moore directed staff to look into this with advice of legal council to inject that within

the ordinance.

       Mr. Kirby stated that to further address Commissioner McGinn’s statement and question. It is

obvious that a County government is much more grass roots than the State. The break down in the

system here with the State has been no oversight, no appeals process worthy of the name. There is a

system built into the State rules that you can appeal and have hearings, but those were determined not to

be heard. Mr. Kirby made the statement that anybody working for the Environment Department must

know the meaning of and will to be a public servant. Not a public slave, but a public servant.

       Commissioner Moore stated that he has some staff recommendations. Recommendation

Number 1, remove the extra M in the word amendment in the title. Number 2, the first Whereas,

“Whereas Otero County has been granted by the State Legislature to protect the health, safety and

welfare of it’s citizens through NMSA 19784-37-1, which permits New Mexico Counties to develop

land use, resource management, and environment planning resolutions and ordinances necessary to

secure public health, safety and welfare of their citizens”, this needs to be injected into the ordinance.

Number 3, delete the period after each Whereas and insert, and at that location. Number 4, is in the

sixth Whereas, delete the word “abusive” and insert the word “unresponsive”. Number 5, paragraph 2a

and C, insert the word after the regulation cite in the end of each sentence.”

       b. Bernard Millhouse stated that one of his concerns is the funding for the department and the

County being able to afford it. The figure of $150,000.00 that you quoted for operations, does that

include employees?

       Commissioner Moore stated from the estimates we received we believe the cost to operate this

department in the first year if we hire certified personnel is approximately $150,000.00 per annum.

This is only an estimate because we have never run a department like this before. We believe this

includes personnel and the ability for it to generate revenues, be it permit fees if they remain at the

current levels would be about $100,000.00. There is still some debate about taking on all three

departments. Do we take on the restaurant, solid waste and swimming pools? There were three entities

we were looking at based on some input from the State and from other folks that have been down this

road before, we may meet some resistance at the State level.

         Mr. Millhouse stated that the $100,000.00 revenue that you are speaking about, does that

include solid waste or does that include all three?

         Commissioner Moore stated that his understanding is that it included all three but he doesn’t

have that information. We believe given the statute that we cited the ordinance that we know within

our authority to take these over. We may meet some challenges at the State level and have to go to

court, that doesn’t mean we don’t have the authority that just means we have had a challenge. We

believe we are within our authority to serve the public in these three areas. If we decide as a

Commission to embrace this ordinance we will go down that path to begin to take control of these three


         Mr. Millhouse asked how many inspectors are you initially going to start with? Commissioner

Moore stated that we thought initially two and then see what develops.

         Mr. Millhouse had heard rumors that if the County were to take over, the liquid waste

contractors would be required to have a license through Otero County. Is that a possibility and will

there be a fee for that?

         Commissioner Moore stated that there is a possibility of a license and there may or may not be a

fee involved. To operate within the City of Alamogordo currently if you are a business venture, you

have to have a City business license, which is about $35.00 per year. It is not so much the fee, but if

you do a poor job there is a mechanism by which the resident would have a recourse.

       Mr. Millhouse stated that we are still talking about a $50,000.00 difference. He doesn’t want to

get hit with an increase in permit fees or having to have another license on top of his State license and a

fee added on to that. He also doesn’t care to see property taxes or sales tax go up. This is a concern for

him of where are we going to get the money.

       Commissioner Rardin stated that he believes rumors have gotten to Mr. Millhouse and you are

having second thoughts thinking we are going to come in and increase your fees. We work hard to

make things work here in Otero County. We are trying to give you back the service you used to have

and make the department user friendly.

       Commissioner McGinn stated that what she is hearing your main concern is, the fees increasing

by the County taking over the Environment Department. Commissioner McGinn asked Mr. Millhouse

if it was more appealing to him that you could come locally to have someone make the inspections

versus the way you are doing it now. Mr. Millhouse stated that initially he was in favor of creating the

Environment Department, but he has his reserves now why he prefers the State to keep it.

       Commissioner Moore asked Mr. Millhouse what his opposition is to this ordinance, what would

he add or take out. Mr. Millhouse stated that his biggest thing is can the County afford it. He wants no

increases in taxes or permits, this would hurt the industry. He believes the County is taking this a little

to fast and with two new Commissioners coming to the Board in January how are they going to be to

work with.

       c. Larry Carson, owner of KLM Septic System, stated that he wanted to hear what was going on.

There have been a lot of rumors and he is here to have them cleared up. His biggest issue is he wants a

fair group going into operating the Environment Department. He wants a group that is not bias. We

have had numerous instances here recently of the inspectors not being fair. It has affected his business

tremendously. In his business he doesn’t do installs, he is a non-approved inspector. Inspections have

become a large part of his business. If this department becomes reality, his inspection business is out

because we will only have County inspectors. He feels there are people in that core group that won’t be

fair. He believes it will be good old boy politics and he is against that.

       Commissioner Moore stated that the only question tonight is do we approve the ordinance.

With the approval of the ordinance, all that does is say Otero County intends to create an Environment

Department. How that department is developed would be a separate issue. We would get the

contingent from the folks that will be clientele, the installers and restaurants. We would get a group of

those folks together and we would create the system by which the department would operate. None of

that language has been written yet. This ordinance says Otero County intends to step up and create a

Environment Department, we intend to empower home rule and we will discuss with our citizens how

we intend to apply and enforce the New Mexico Statutes.

       Mr. Carson stated that he doesn’t want the County to jump to quick on this project. He would

like to have more time himself to read the ordinance.

       Commissioner Moore encouraged Mr. Carson to read the Ordinance and provide us with any

proposed language changes that would make it better.

       Commissioner Rardin stated that we have been working on creating this department for a year

and a half, so we aren’t rushing into this. Propaganda is the worst enemy we could have among

ourselves. We are trying to develop a department that will be run by the County Manager. He will hire

qualified people to help run the department. Commissioner Rardin stated that he didn’t know how long

it will be to develop this department. It could be 6 months or a year or more.

       Commissioner Moore encourages everyone again to read Ordinance 10-09 and provide any

comments that you think will make it better or any objections.

       d. Raymond Davis owner of Moonlight Construction stated that he is a septic installer. His

main concern is our economic status and changing government now. Most of the installers that are here

tonight that are putting in septic systems understand that we are going to be facing more regulation

under this department right now. His concern to the Commission is that we don’t get inundated with

more regulations and fall into the same hole that the contractors are in now with the State. We go to

classes and we have to have certifications and go to seminars to meet the requirements of the State right

now. With our economical status it’s killing us. He likes the theory of this Ordinance.

       e. Bill Short, Realtor for Alamogordo, stated that he would like to see us have a smaller

government. If we keep this job local, we could keep it small and under more control than you can the

State. He is for the issue for a whole lot of reasons, but his biggest one is to keep it small.

       Commissioner Rardin stated that in his endeavors talked to a Mr. Kasus in Albuquerque who

runs the Environmental Department. He took over their department in 1991 and said that he would do

anything to help Otero County to get started. Our intent is to do a better job at a lower cost.

       Commissioner McGinn stated that this ordinance tonight, if she heard correctly, is to say this is

our intent and it means nothing else. What is the difference between saying this in a resolution and

saying it in an ordinance?

       Dan Bryant stated that in terms of legal effect, an ordinance becomes a law and is binding. A

resolution is an expression of the intent to the Commission and an expression of it’s decision on a

particular matter but is not considered to be law. That’s the difference. In the context of this particular

document and the way it’s written, the Chairman did a great job in describing this as an effort to let the

Environment Department know we are serious about this topic. In that sense this is step one of a

thousand steps on a journey to having our own Environment Department. It does send the message, we

are serious about this and we are really going to go forward. By the time we get the department created,

staffed, the rules, regulations, the policies and procedures all put together, we are going to be dealing

with a set of documents that will be quite large. That’s the context in which our appeals hearing

process and all those things will be flushed out.

Whether you do it by an ordinance or a resolution in that context, the materiality is only as he described

first. What this ordinance does, it says it’s our intention to have a law that creates an Environment

Department that adopts by reference the relevant provisions of the Administrative Code and starts this

process forward.

Commissioner McGinn asked what part of this is binding and in what way? Mr. Bryant stated that it is

binding just as he just described it.

        Commissioner Moore stated that he has had proposed language changes and he doesn’t think we

will have a motion on this ordinance tonight. He directed staff to give us review and comment on the

gravity of ordinance or resolution, a recommendation. Commissioner Moore asked staff to inject the

staff recommendation for language, and to keep your ears open for any other comments that you may

get from the public. Please highlight any proposed language changes that may be brought forward prior

to the next public hearing. Commissioner Moore would like to have included the tentative one page

budget, estimated expenses and projected revenues as supporting documents for consideration at the

January Commission Meeting.

        The Chairman closed the Public Hearing and returned to regular session.

       2. Scheduled Citizen Communications:

       a. Sue Hooser-Consider maintaining roads in Tierra Verde Subdivision.

       Commissioner Moore stated that this was presented to us at the Work Session and have had an

inspection done by our Road Department and they have some minor recommendations. Bennie Carrillo

is representing the Road Department tonight.

       Mr. Carrillo stated that we do recommend that we take over maintenance. They meet the 20

percent occupancy. The only recommendation that we have is that they blade the roads before we take

over maintenance.

       Ms. Hooser is in agreement to run the blades over the roads before the County takes over


       Commissioner Moore stated that based on the recommendation from staff, the request is to

blade the roads and clean the bar ditches one time. As we enter into the one year requirement, you must

maintain them in that condition for one year. At the end of that one year, based on a motion and an

acceptance tonight they would be brought on to the County records as County maintained roads.

       Dan Bryant stated that he has reviewed Ordinance 97-03, which was the one in place in July of

02 when this subdivision was platted. That ordinance and appendix E required the 20 percent

occupancy. That ordinance also provides the County with the permissive rights to request the sub-

divider to enter into a contract with the County for the maintenance of the warranty period. It gives you

the discretion to do either do one year of warranty or two years of warranty. Bill Parker’s inspection

report alludes to that and suggests to the Commission in their motion tonight make a choice of one or

two year warranty. Mr. Bryant suggests that we also make that contingent upon the County and the sub-

divider entering into a County sub-divider contract.

         Commissioner McGinn made a motion to approve maintaining the roads in Tierra Verde

Subdivision for one year. Commissioner Rardin seconded the motion with an amendment.

         Commissioner McGinn amended the motion to add on the contingency of the signed contract.

The amended motion was seconded by Commissioner Rardin. A vote was taken and the motion passed


         b. Mike Nivision-RS2477 Road status on Grand Avenue for Cloudcroft area.

         Mr. Nivison stated that Commissioner Rardin came up and looked at Grand Avenue and this is

just one of many that need to be looked at. The map was platted before it was Forest Service. In his

tenure as a Village Trustee, on a couple of the other roads that are on this map, the Village was denied

access. Mr. Nivison would like to ask the Commission to declare everything on the map as RS2477


         Commissioner McGinn asked about the letter from the attorney Mr. Rhodes. The letter is

describing that the Village has the authority to request that the road be unblocked so that the public has

access because of a prescriptive easement and some of the legal ownership of the road. What has

transpired since this letter in June? Mr. Nivison stated that nothing has transpired, the fence is still up.

         Commissioner Rardin made a motion that we send a letter to the land owner along with attorney

Rhodes letter insisting that they remove their fence immediately and the County claims it as a RS2477

road as a designation of a public way. The motion was seconded by Commissioner McGinn. A vote

was taken and the motion passed unanimously.

         c. Amy Tuma-Request approval for Hatari-Safari animal sanctuary in Otero County.

         Amy Tuma stated that we have a drafted letter prepared for the Board.

         Commissioner Rardin made a motion that we accept the approval of Hatari-Safari animal

sanctuary. The motion was seconded by Commissioner McGinn. A vote was taken and the motion

passed unanimously.

       3. Unscheduled Citizen Communication:

       a. Commissioner elect Susan Flores stated that Sharon Hill received a letter from the New

Mexico Recycling Coalition approving Otero County for the grant for the Recycling Center. We need

to send a letter back to them telling them we accept and will comply.

       4. Elected Officials, Department Heads:

       a. Request approval establishing Bent Fire/Rescue as an Otero County EMS Department.

Commissioner Moore stated that his understanding is that we have had a fire operation in Bent, in the

past some of its membership weren’t able to comply with the minimums. These folks have re-

energized that community, not only do they want to rejoin us as a volunteer fire station, but they have

personnel that have the status to be qualified as a rescue as well.

       Paul Quairoli stated that the department has always been a fire department. There was some

question at some time about turning it over to somebody else. They have a new core group and they

were at once the EMS Department. Due to staffing levels and requirements of the State they could no

longer maintain that. They have sent numerous people to school to become EMT’s and First

Responders. They are asking to be reinstated as a EMS Department so they can receive State money to

fund and respond to their community there.

       Commissioner McGinn made a motion to accept the approval to establish the Bent Fire

Volunteers as a EMS Department. The motion was seconded by Commissioner Rardin. A vote was

taken and the motion passed unanimously.

       b. Request to appoint Mr. JB Colquitt as a Board member to the Planning Commission.

       Commissioner Rardin made a motion to appoint Mr. JB Colquitt as a Board member to the

Planning Commission. The motion was seconded by Commissioner McGinn. A vote was taken and

the motion passed unanimously.

       5. Consent Agenda:

       Commissioner McGinn made a motion to approve Consent Agenda items 9, 10, 11, 12, 13, 14,

15, 18, 19, 20, 21, 22, 23, 24, 26, 27 and omitting items 29, 28, 25 and 17. Item 16 is not part of the

Consent Agenda. The motion was seconded by Commissioner Rardin. A vote was taken and the

motion passed unanimously. See pages

       a. Item 16, Request approval of Sealed Bid 11-008 Bottle Water delivery for Otero County to

Alamo Crystal Clear Water and Ice.

       Commissioner Moore stated that at the last meeting we discussed how much this was. He

believes it was in the neighborhood of $5,000 a year. Ms. Herndon stated it was that for the current

year, but with this new company it will be about $3,000 a year.

       Commissioner Rardin made a motion to approve Sealed Bid 11-008 Bottle Water delivery for

Otero County to Alamo Crystal Clear Water and Ice. The motion was seconded by Commissioner

McGinn for discussion.

       Commissioner McGinn stated that Commissioner Rardin had mentioned that there are offices

that don’t have water. Who are they? Commissioner Rardin stated that the County Clerk’s Office have

no water in their office. There is no sink or drinking fountain only in the middle hallway by the

bathrooms. They can’t always leave their office to go get water downstairs or from the drinking

fountain in the hallway.

       Commissioner Moore stated that we shouldn’t spend County money on water that you can get

out of the tap. We have a motion on the floor to approve Sealed Bid 11-008.

A vote was taken and the motion failed. Commissioner Rardin voted yes, Commissioner McGinn

voted no and Commissioner Moore sustained. This item will be on the next meetings agenda.

          b. Item 17, Request approval to award Sealed Bid 11-014 to purchase a Chipper to Ditch Witch

of New Mexico in the amount of $260,000.00 for a 2011 Beast 2680 Grinder.

          Commissioner Rardin made a motion to approve Sealed Bid 11-014 to purchase a Chipper from

Ditch Witch of New Mexico. The motion was seconded by Commissioner Moore for discussion.

          Commissioner McGinn stated that the reason she wanted to discuss this item with item 29, the

Green Waste Service Contract, is right now we are paying $80,000.00 to have the Green Waste

contracted out and grinded. This $260,000.00 that’s going for a grinder that we aren’t going to use at

the Convenience Center, but will be used by somebody who is bidding to do the green waste processing

for us.

          Commissioner Rardin stated that the green waste from the Convenience Center will be moved to

the new location. Everyone in Otero County or anyone who brings green waste into Otero County will

be able to take it to them at no charge. The chipper will belong to us, but the work will belong to

Premier Pellets. The pay to us is that we no longer have green waste to deal with.

          Commissioner McGinn stated that we are paying 3 years worth of contracting for green waste by

buying this chipper.

          Commissioner Moore stated that he needs to clarify. Last year we paid an independent contract

$80,000.00. The amount we have to pay is based on the volume. We have in the past had our own tub

grinder at the Convenience Center which we operated. It has had mechanical failure and is no longer

operational. The $80,000.00 is not a set in stone number, if we get a small amount of waste it will be

less than that. We also have the potential to take on huge amounts of waste and that number will

exceed the $80,000.00.

       Commissioner McGinn stated that when Commissioner Moore and she came on board in 2003

we had a discussion about the same kind of issues about green waste at the Convenience Center. We

signed on with this Forest Service Clean Air Burner and bought two of them. We can’t use them

anymore because the EIB disqualified the air quality standard. Right now we can get by with the

$80,000.00 a year with the green waste contractor. What we do by buying this and contracting out with

the potential contactor is paying a little over 3 years worth of that green waste contracting out by buying

this equipment and never using the equipment. This is a big cost investment and what if that contractor

says, “I don’t want to do this anymore or we say, we don’t want you to do this anymore”. We have this

piece of equipment, are we going to have the people at the Convenience Center using this equipment.

       Commissioner Rardin stated that we would inherit back. Under the contract they will have to

maintain the equipment and if they don’t there will be a penalty involved. If they quit on us we take the

chipper back. We will always have green waste, it’s a renewable resource every year. The chipper is an

investment for us whether Premier Pellets runs it or we run it. Commissioner Rardin believes this is a

win win situation.

       Commissioner Moore stated that the tub grinder that we have is dysfunctional and it does not

work. Otero County has an obligation to deal with the green waste. If we stock pile it, we will be cited.

The premise is this grinder should have a life expectancy that exceeds 10 years. We are going to have

to pay someone else to grind it or buy us a grinder and pay our staff at the Convenience Center to grind

it. The premise here is on item 29, this grinder would be located at Premier Pellets and they in turn

would use the green waste to help fire some of their industrial equipment and provide economic

development in employees. Either way, we need to grind it. If we choose not to enterinto a contract

with Premier we still have to deal with the green waste in some way. Commissioner Moore sees the

purchase of the grinder as a requirement for us to deal with the green waste.

       Commissioner McGinn is looking at the option that we are operating under now. We contract it

out and don’t spend $260,000.00 at one time. It fluctuates and it may not be $80,000.00.

       Ray Backstrom stated that keep in mind even with the $80,000.00 that we spend, what ever that

number winds up being, we still have to deal with the ground up material. We have tried to give this

material to the community and a lot of it doesn’t go so we have to handle it by contracting it out.

       Commissioner McGinn stated that if we saying it’s alright to own a piece equipment and put it

on private property for a business to operate, then what’s the difference with this contractor coming out

and picking up all the limbs at the Convenience Center, grinding it and using it as they see fit.

       Commissioner Rardin thought that Commissioner McGinn was on board with purchasing this

chipper and would like to know what has changed her mind. Commissioner McGinn stated that

looking at a $260,000.00 investment with a piece of equipment that’s not going to stay on County

property, she doesn’t like that idea. Her question is, are we going to put it to use at the County

Convenience Center if we purchase it. We might be getting ahead of ourselves, what if this situation

doesn’t work out for the Contractor and they no longer want to provide that service.

       Commissioner Rardin stated, OK what if he does quit, we are still obligated to take care of our

green waste.

       Commissioner McGinn stated that her question has always been, how do we purchase a piece of

equipment that we don’t retain on County property, but it goes to private property for their use in a

profit business. She wanted to discuss the purchase of the grinder with the contract because she thinks

that is the reason we are buying the grinder.

       Commissioner Moore disagrees. The reason we are buying a grinder is because ours is broke

and has been for 3 years. The reason we have had to pay a sub-contractor is because our grinder doesn’t

work. If we are going to do a legitimate job of handling this kind of waste, we need a grinder. Whether

we put it on our site and operate it ourselves or have someone else do it at their location, he believes it

is more economically viable for us to own it.

       Commissioner Moore stated that we have a motion on the floor. A vote was taken and the

motion passed 2-1 with Commissioner McGinn voting against.

       c. Request approval of Resolution #11-30-10/99-14 making budget adjustments to reflect the

award of a Department of Justice grant to the Sheriff’s Department in the amount of $22,068.00.

       Commissioner McGinn made a motion to approve Resolution #11-30-10/99-14. The motion

was seconded by Commissioner Rardin for discussion.

       Donna Brandon, Financial Director, stated that the Sheriff came to the Board at the Regular

Meeting of June 24th and was approved to accept the grant. The purpose of the grant is to provide

training and the purchase of miscellaneous evidence materials. Ms. Brandon stated that you have

already accepted the budget of the grant and this is to make the budget adjustment.

       A vote was taken and the motion passed unanimously. See pages

       d. Item 28, Request approval of Resolution #11-30-10/99-11 making a budget increase of

$150,000 in the General Fund for the completion of the new Public Safety Answering Point Building


       Commissioner Rardin made a motion to approve Resolution #11-30-10/99-11 making a budget

increase of $150,000.00 in the General Fund for the completion of the new Public Safety Answering

Point Building. The motion was seconded by Commissioner McGinn for discussion.

       Commissioner McGinn stated that her understanding is that we don’t have to have a resolution

or a budget increase given some of the information that staff returned to us for utilizing items already

budgeted. Mr. Backstrom stated that this is correct. We have identified some monies that the Sheriff is

making available to us. The money was originally in Emergency Services budget along with some

money that is in the budget right now for Room 253 upgrades. That will cover the amount so a

resolution is not required. The Sheriff is giving up $29,000.00 that was going to be used for an


       Commissioner Moore stated that if we move forward with this tonight and Benny House finds

that he needs a new truck for the Sheriff’s Department, there is enough flexibility within the budget to

be able to make that possible.

       There is a motion on the floor to approve Resolution #11-30-10/99-11.

       Ray Backstrom stated that the resolution is required to increase the budget. We are not

increasing the budget at this point the money that we are going to be using is already in the budget

therefore, we don’t need a resolution. Commissioner Moore stated that we have a faux pas on the

agenda. We have a motion and second and he will call the question and just let it die.

Commissioner Rardin voted no Commissioner McGinn voted no and Commissioner Moore sustained.

       e. Item 29, Request approval and signatures for the Green Waste Services Contract between

Otero County and Premier Pellets, LLC.

       Commissioner Rardin made a motion to approve the Green Waste Services Contract between

Otero County and Premier Pellets LLC. The motion was seconded by Commissioner McGinn for


       Commissioner Rardin stated at the last meeting Mr. Backstrom had served this contract to

Premier Pellets. They have now signed it and sent it back. In good faith we have completed the first

step in this contract because he thought everything was going down the road smooth until tonight.

       Commissioner McGinn stated that last time we discussed this contract we didn’t approve it. We

had a discussion that was, these are the questions that we would like answered and some of them were

about the anti donation issue. What happened at that time, it went back to management and they were

going to work out some of the issues. It’s the same contract with the exception now it does have a

scope of work which we didn’t have last time.

       Commissioner Rardin stated that he would have to differ with Commissioner McGinn. We not

only discussed the contract but approved it and it’s been sent out.

       Ray Backstrom stated that the bid was put out, the bid came back before the Commission, the

bid was approved by the Commission which triggered the creation of a contract to fulfill the

specifications in the bid. The contract was put together by the attorney and sent out. It is now being

returned for signatures. It has been signed by Premier Pellets.

       Dan Bryant stated that his understanding of the status is as Manager Backstrom has described it.

We have awarded the bid, we have not approved the contract. He has not seen a contract that has been

signed by Premier Pellets yet. He believes we are going to send it to them after it is approved tonight, if

it is approved. In addition, looking at the contract in the book tonight he has found some errors. One is

that it says it is effective the 21st day of October 2010 and it can not be effective until the affirmative

vote of this Board. This needs to be corrected to reflect November the 30th 2010. He has done this on

his computer and it is being printed now. In addition to that he looked at the agreement and he

consulted with our Purchasing Agent because he recalls we did a renewal bid that was eligible for

renewal. With this kind of contract we can renew for up to four years. The Purchasing Agent has

confirmed this, so he has gone into paragraph 1 and added a sentence that says, “The parties may renew

this agreement for up to three additional one year contract periods by either party providing the other

party notice of their intent to renew in writing sixty days prior to the expiration date provided for herein.

The notice called for herein shall be due annually on or before the 1st day of November in each

calendar year”. Down below in status where it mentions again the 31st day of December 2011, he added

the phrase, subject to the renewal provided for above. Mr. Bryant has made those two adjustments and

the Commission will have those corrected copies in just a moment.

        Commissioner McGinn stated that we had an item on the agenda that was a request for a

proposal from Premier Pellets. We didn’t approve it at that meeting. We discussed that we needed

more details in the contract and it was not a majority vote to proceed with anything until we got a

contract back. There is a contract in tonight’s book that details more out with the scope of work. She

wants to discuss the terms of the contract. We didn’t have a contract to approve yet.

        Commissioner Rardin would like to know who sent the contract to Premier if Dan Bryant didn’t

approve it and send it. Mr. Backstrom stated the contract was written by the attorney and provided to us

and we filled in the dates post the Commission approving the bid, then it went out to Premier Pellets for

their review and signatures.

        Commissioner McGinn stated that there was only one bidder and when that bidder was selected

we got a request for proposal from Premier Pellets. We reviewed that at the Commission Meeting and

it wasn’t a lot of detail in it, it wasn’t a contract.

        Commissioner Moore doesn’t remember this as either way. What he remembers is we had

instructed Ginger to develop an RFP that would work within the framework of, we’re going to get the

grinder, they are going to grind it, you put out the RFP at our direction and you received one response.

We looked at that response and your recommendation was it met the requirement of the RFP. We

instructed staff to develop a contract and contract language.

        Ms. Herndon stated that when it was submitted and put on the agenda the bid was approved.

Not the contract.

        Commissioner Moore stated is everybody clear that we are discussing the draft language for

approval, not for the contract. Commissioner Moore would like to have input from the Commission

Elect on this item.

        Tommie Herrell stated that you all approved the RFP for proposal before the contract. The bid

has been awarded because there was only one bidder on the contract. Staff was instructed to come up

with a contract, is there a contract floating around that Premier has signed? Commissioner Moore

stated yes there is. Mr. Herrell is trying to get clarification himself. If this hasn’t been reviewed by

staff and if it changes then it needs to be clarified.

        Susan Flores stated that she is questioning the part on page 157, the scope of work.

Commissioner McGinn stated that she remembers the discussion that we couldn’t negotiate a contract

without approving the bidder and the request for proposal that was submitted. The discussion at the

time was let’s get details on the service they are going to provide. We now have a scope of work with

the contract.

        Commissioner Moore stated for clarification this is a no money contract. As we moved forward

in this process we visited with Premier about what our expectations were. So that we followed along

according to the procurement requirements we put out a request for proposal. We put it out there and

they responded. The odd thing about this one is that it’s a no money deal. We accepted in theory their

bid and then said develop a contract. There were some concerns, when we accepted in theory the bid,

we said we need to make sure we don’t have some liability if someone was to get hurt. We needed the

operational hours and what kind of insurance did this third party have if a citizen was to get hurt on

their property. All of this was supposed to be worked out prior to the contract.

        Commissioner McGinn stated that we have discussed this in theory. We need to discuss the

details of the contract for services.

        Commissioner Moore stated that we haven’t made a commitment to enter into this contract.

The discussion today is are we satisfied with the language in the 3 page contract or do we want to

include more language or delete some language.

        Commissioner McGinn stated that we reviewed the minutes back in August. We had an RFP

for approval. The Commission did not approve the RFP. What was approved was a motion to bring

back a contract negotiated by both parties for consideration which is here tonight that we can discuss

and consider.

        Commissioner Moore stated that this is an accurate statement. He has reviewed the minutes and

we did have a motion and it was amended three times. We did not approve specifically the RFP, we

directed staff to bring us a contract that could be negotiated. This is the action item that we are dealing

with tonight.

        Commissioner Rardin stated that on the scope of work we want Premier to be open longer on

Saturday. Their time should reflect our Convenience Center time exactly. In the contract does it spell

out the minimum insurance requirements?

        Dan Bryant stated that paragraph 5 of the draft provides the contractor will indemnify and hold

the County harmless from any and all liability whatsoever for services provided. As staff manages this

contract they would need to task the contractor for copies of his insurance and make sure that those

comply with Tort Claim requirements. It is also language that we can add in here.

       Commissioner McGinn stated that when we talked about the anti-donation, we purchased a

piece of equipment, but it’s not staying on County property like it did with Green Tree. What if, any

anti-donation issues do we have and also if the Company utilizing our equipment, are they going to

utilize it only for County green waste. Commissioner McGinn doesn’t think they should use it for any

other business venture.

       Commissioner Rardin stated that the intent of this contract was all the green waste that is

brought into the County to be grinded. He agrees that it shouldn’t be used for anything else.

       Dan Bryant stated that no there isn’t an anti-donation issue. In our RFP we said we would

provide a chipper that would be used by the vendor and return for the services rendered. The services

rendered are chipping all green waste that Otero County brings to the vendor. Currently this is costing

us $80,000.00 a year. The life of the chipper is 10 years, $80,000.00 times 10 is $800,000.00. The cost

of the chipper is $260,000.00. The benefit to the County is $540,000.00. We are making $540,000.00

over a decade. In the private industry a 10 year return of half a million dollars on your investment will

make you pretty happy. The second part is that in addition to that, Mr. Backstrom noted that we’re not

disposing of all the chips that we are generating at the Convenience Center and there is a cost associated

with those chips. The benefit to the County at a minimum is the $540,000.00 plus this unknown

number about what were having to do to dispose of those additional chips and those costs. That’s the

difference between going on somebody’s yard and running a motor grader to clear snow. Saying we’re

not going to pay you a nickel, we’ll buy the machine, you’re required to maintain it and over the 10

years we are going to make a profit based on our current $80,000.00 per year cost. It’s unrealistic of us

to assume that it’s going to stay at $80,000.00 going forward in time that cost will increase.

        Commissioner McGinn stated that is not anti-donation. The big issue is getting rid of the green

waste. We are taking it for no fee as a service to the public. Why can’t that contractor come pick it all

up and haul it to their facility and process it, then we won’t be paying $80,000.00 to process the green

waste. The company is benefiting because they are getting the green waste from us and they can

process it at their facility.

        Commissioner Moore stated that he can’t speak for the contractor but two things come to mind.

We can only store a certain amount of cubic yardage. If we store whatever raw material at our site then

the vendor is going to have to come with a truck and a loader, pick it up and haul it to his facility. So,

now this starts costing him money and this wasn’t the premise that we put the RFP out on.

        Commissioner McGinn is making a suggestion to put in the contract to make it available for the

public to take their green waste to either Premier Pellets or the Convenience Center.

        Commissioner Rardin has a real problem with this. Our Convenience Center is a solid waste

center. Once it crosses the fence it can’t come backwards. It is now trash not green waste. That’s one

of our big problems out there.

        Commissioner Moore stated that he is up for trying this. He isn’t sure that it’s a perfect fit, he

has some concerns about liability. He has at least four recommendations on proposed new language for

this contract and he is willing to give this a try. He has a recommendation on the existing contract

language that the date be modified, that we get a clause that clearly addresses the anti-donation issue

and cites our belief that we are not in violation of said statute. He also has a recommendation that we

include language that this device is to be used only for green waste that is generated by County

residents and not for use of Premier Pellets and their profit driven organization for their own use. A

request that we expand on the insurance language to be included in contract under 5 as a subparagraph

5A. Commissioner Moore needs staff to write an opinion on, if in fact we took green waste alternately

at our Convenience Center what is the opinion of Council, would we be able to take it from there and

transport it to secondary location for treatment or would we be required to haul it to the Landfill. Also,

to amend the operational hours to mirror those currently in use at the Convenience Center.     Staff was

directed to provide the amended contract for consideration in our December meeting.

       Commissioner McGinn stated that another thing she would like in the contract is about the

equipment. They have to maintain the equipment, what if the equipment is no long operational, she

wants that addressed.

       Commissioner Moore stated that we had a lot of language in our RFP to discuss what we

wanted. He thinks it needs to be an attachment to the contract and binding to the contract itself.

Compliance with the RFP is required for the contract to stay in place. If any terms of the RFP are not

met by the contractor that would invoke an exit clause on our part.

       Dan Bryant stated that if we put the whole RFP in there, they are bound to maintain the chipper

in working order as expressed in those two paragraphs.

       Commissioner Moore stated that we have a motion and a second on the floor to approve

signatures on the contract which we have directed staff to amend.

       Commissioner Rardin withdrew his motion and have this item tabled until the next meeting.

Commissioner McGinn withdrew her second.

       Commissioner Moore directed staff to make sure this item is included in the December agenda.

       6. Commission Discussion/Correspondence:

       a. Commissioner Moore stated that we attended a Franchise Legislative Hearing in Santa Fe in

an effort to get legislative relief on the recent Supreme Court decision where Counties are concerned

with Franchise Fees and utilities.

       b. Commissioner McGinn stated that she would like to go back to item #28. We did not

approve a resolution and increase the budget to finish out the Dispatch Center.

       Commissioner McGinn made a motion to direct staff per Donna Brandon’s instruction here

about the $29,000.00 vehicle for the Sheriff’s Department budget, the unencumbered appropriation for

furniture for the EOC at $23, 272.00 and the Room 253 Courthouse remodel for $97, 728.00 to make

up the difference so we don’t have to increase the budget. Donna’s request was that all is required is an

affirmative vote by the Board of County Commissioners to reallocate the existing appropriations. The

motion was seconded by Commissioner Rardin. A vote was taken and the motion passed unanimously.

       c. Commissioner Rardin stated that Monday we will be starting our aerial suppression of the

coyote. The Commission elect were invited by Commissioner Rardin to attend.

       Commissioner McGinn stated that our December 8th is our next Work Session which is next

Wednesday. She would propose that we cancel the Work Session and have the December 16th Meeting

and a closeout December meeting if we have need of one.

       Commissioner McGinn made a motion that we cancel the scheduled December 8th Work

Session and have the Regular Commission Meeting on December 16th. The motion was seconded by

Commissioner Rardin. A vote was taken and the motion passed unanimously.

       7. Managers Report:

       Ray Backstrom stated that our Human Resources Director has tendered her resignation. We are

starting the process of recruiting to replace her. Her last day will be December 17th.

       8. Executive Session:

       Commissioner McGinn made a motion to go into Executive Session to discuss items B. Pending

Threatening Litigation, C. Personnel Issues, D. Land, E. Roads, and G. Contracts. The motion was

seconded by Commissioner Rardin. Roll call was taken as follows:

                             Commissioner McGinn                                yes

                             Commissioner Rardin                                yes

                             Commissioner Moore                                 yes

       Commissioner Moore made a motion to come out of Executive Session having discussed items

B. Pending Threatening Litigation, C. Personnel Issues, D. Land, E. Roads and G. Contracts having

made no decisions. The motion was seconded by Commissioner McGinn. Roll call was taken as


                             Commissioner McGinn                                yes

                             Commissioner Rardin                                yes

                             Commissioner Moore                                 yes

There being no further business before the Board, the Chairman adjourned the meeting at 10:27 p.m.


                                                                   Doug Moore, Chairman

Robyn Holmes, County Clerk

Regular Meeting Nov. 30, 2010


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