[HISTORY: Adopted by the Board of County Commissioners of
Doña Ana County 11-10-2015 by Ord. No. 280-2015. Amendments noted where applicable.]
This ordinance may be cited as the "Affordable Housing Ordinance."
This ordinance is adopted to implement the Doña Ana County
Affordable Housing Plan. In accordance with the New Mexico Constitution,
Article IX, § 14, the Affordable Housing Act, NMSA 1978,
§ 6-27-1 et seq. (the "Act"), NMMFA Rules, the purpose of
the Affordable Housing Ordinance is to:
A.
Establish procedures to ensure that state and local housing assistance
grantees are qualifying grantees who meet the requirements of the
Act and the rules promulgated pursuant to the Act, both at the time
of the award and throughout the term of any grant or loan under the
Program;
B.
Establish an application and award timetable for state housing assistance
grants or loans to permit the selection of the qualifying grantee(s)
by Doña Ana County.
C.
Create an evaluation process to determine in conjunction with the
MFA:
(1)
The financial and management stability of the applicant;
(2)
The demonstrated commitment of the applicant to the community;
(3)
A cost-benefit analysis of the project proposed by the applicant;
(4)
The benefits to the community of a proposed project;
(5)
The type or amount of assistance to be provided;
(6)
The scope of the affordable housing project;
(7)
Any substantive or matching contribution by the applicant to the
proposed project;
(8)
A performance schedule for the qualifying grantee with performance
criteria; and
(9)
Any other rules or procedures the County believes are necessary for
a full review and evaluation of the applicant and the application
or which the MFA believes is necessary for a full review of the County's
evaluation of the applicant.
D.
Require long-term affordability of Doña Ana County's
affordable housing projects so that a project cannot be sold shortly
after completion and taken out of the affordable housing market;
E.
Require that a grant or loan for a project must impose a contractual
obligation on the qualifying grantee that the affordable housing units
in any project be occupied by persons of low or moderate income as
defined in this ordinance;
F.
Provide for adequate security against the loss of public funds or
property in the event that the qualifying grantee abandons or otherwise
fails to complete the project;
G.
Require review and approval of a housing grant project budget by
the County and/or the MFA before any expenditure of grant funds or
transfer of granted property;
H.
Require that a condition of grant or loan approval be proof of compliance
with all applicable state and local laws, rules and ordinances;
I.
Provide definitions for "low-income" and "moderate-income" and set
out requirements for verification of income levels; and
J.
Require that the County enter into a contract with the qualifying
grantee consistent with the Act, which contract shall include remedies
and default provisions in the event of the unsatisfactory performance
by the qualifying grantee and which contract shall be subject to the
review of the MFA in its discretion.
The following words and terms shall have the following meanings:
The Affordable Housing Act, NMSA 1978, § 6-27-1
et seq.
If the fair market value of any housing assistance grant or
the total amount of affordable housing funds that have been awarded,
loaned, donated, or otherwise conveyed to the qualifying grantee is
from $1 to $14,999.99, then the affordability period shall be not
less than five years.
If the fair market value of any housing assistance grant or
the total amount of affordable housing funds is from $15,000 up to
and including $40,000, then the affordability period shall be not
less than 10 years.
If the fair market value of any housing assistance grant or
the total amount of affordable housing funds is from $40,000 up to
and including $100,000, then the affordability period shall be not
less than 15 years.
If the fair market value of any housing assistance grant or
the total amount of affordable housing funds is greater than $100,000,
then the affordability period shall be not less than 20 years.
Consistent with minimum rent and/or income limitations set
forth in the MFA Act and in guidelines established by MFA.
Residential housing primarily for persons or households of
low or moderate income.
Any or all funds awarded or to be awarded, loaned or otherwise
distributed under the Act.
A plan pursuant to detailed research and analysis of the
community and housing profile, including a review of land use and
policy regarding land use, which produces a housing needs assessment
for low- and moderate-income households in that locality.
Any programs the County establishes pursuant to the Act and
based on the findings of the approved Doña Ana County Affordable
Housing Plan.
Any work or undertaking, whether new construction, acquisition
of existing residential housing, remodeling, improvement, rehabilitation
or conversion, which may be developed in one or more phases, as approved
by the County and/or the MFA for the primary purposes as allowed by
the Act and in compliance with the findings of the Doña Ana
County Affordable Housing Plan.
An individual, a governmental housing agency, regional housing
authority, a for-profit organization, including a corporation, limited
liability company, partnership, joint venture, syndicate, or association
or a nonprofit organization meeting the appropriate criteria set by
the County and/or the MFA.
An application to participate in one or more affordable housing
projects or programs under the Act submitted by an applicant to the
County.
An individual or entity licensed as a general contractor
to construct residential housing in the state that satisfies the requirements
of a qualifying grantee and has been approved by the County and/or
the MFA to participate in an affordable housing program. The term
"builder" shall also include an individual or entity that satisfies
the requirements of a qualifying grantee and has been approved by
the County and/or the MFA to participate in an affordable housing
program, who is not licensed as a general contractor in the state,
provided that such individual or entity contracts with a general contractor
licensed in the state to construct residential housing.
A structure capable of being renovated or converted into
affordable housing or a structure that is to be demolished and is
located on land donated for use in connection with an affordable housing
project.
Residential housing designed for occupancy by more than four
persons of low or moderate income living independently of each other.
The facility may contain group dining, recreational, health care or
other communal living facilities, and each unit in a congregate housing
facility shall contain at least its own living, sleeping, and bathing
facilities.
Doña Ana County, New Mexico, a unit of local government
under the Constitution and laws of the State of New Mexico.
The United States of America and any agency or instrumentality,
corporate or otherwise, of the United States of America.
One or more persons occupying a housing unit.
The donation, provision or payment by the County of:
Land upon which affordable housing will be constructed;
An existing building that will be renovated, converted or demolished
and reconstructed as affordable housing; or
The costs of acquisition, development, construction, financing,
and operating or owning affordable housing; or
The costs of financing or infrastructure necessary to support
affordable housing.
The United States Department of Housing and Urban Development.
Infrastructure improvements and infrastructure purposes.
Includes, but is not limited to:
Sanitary sewage systems, including collection, transport, storage,
treatment, dispersal, effluent use and discharge;
Drainage and flood control systems, including collection, transport,
diversion, storage, detention, retention, dispersal, use and discharge;
Water systems for domestic purposes, including production, collection,
storage, treatment, transport, delivery, connection and dispersal;
Areas for motor vehicle use for road access, ingress, egress
and parking;
Trails and areas for pedestrian, equestrian, bicycle or other
non-motor vehicle use for access, ingress, egress and parking;
Parks, recreational facilities and open space areas for the
use of residents for entertainment, assembly and recreation;
Landscaping, including earthworks, structures, plants, trees
and related water delivery systems;
Electrical transmission and distribution facilities;
Natural gas distribution facilities;
Lighting systems;
Cable or other telecommunications lines and related equipment;
Traffic control systems and devices, including signals, controls,
markings and signs;
Inspection, construction management and related costs in connection
with the furnishing of the items listed in this subsection; and
Heating, air conditioning and weatherization facilities, systems
or services, and energy efficiency improvements that are affixed to
real property.
Planning, design, engineering, construction, acquisition or
installation of infrastructure, including the costs of applications,
impact fees and other fees, permits and approvals related to the construction,
acquisition or installation of the infrastructure, provided that the
County may determine it appropriate to reduce or waive building permit
fees, sewer and water hook-up fees and other fees with respect to
an affordable housing project for which affordable housing funds and/or
housing assistance grants are awarded, loaned, donated or otherwise
distributed under the Act;
Acquiring, converting, renovating or improving existing facilities
for infrastructure, including facilities owned, leased or installed
by the owner;
Acquiring interests in real property or water rights for infrastructure,
including interests of the owner; and
Incurring expenses incident to and reasonably necessary to carry
out the purposes specified in this subsection.
The New Mexico Mortgage Finance Authority.
The Mortgage Finance Authority Act, enacted as Chapter 303
of the Laws of 1975 of the State of New Mexico, as amended (being
NMSA 1978, §§ 58-18-1 through 58-18-27, inclusive,
as amended).
A mortgage, mortgage deed, deed of trust or other instrument
creating a lien, subject only to title exceptions as may be acceptable
to the County and/or the MFA, on a fee interest in real property located
within the state or on a leasehold interest that has a remaining term
at the time of computation that exceeds or is renewable at the option
of the lessee until after the maturity day of the mortgage loan.
Any bank or trust company, mortgage company, mortgage banker,
national banking association, savings bank, savings and loan association,
credit union, building and loan association and any other lending
institution, provided that the mortgage lender maintains an office
in the state, is authorized to make mortgage loans in the state and
is approved by the County and/or the MFA and either the Federal Housing
Authority, Veterans' Affairs, Federal National Mortgage Association
(now known as "Fannie Mae"), or Federal Home Loan Mortgage Corporation.
A financial obligation secured by a mortgage, including a
mortgage loan for a project.
A program involving a congregate housing facility, a multiple-family
housing project or a transitional housing facility.
Residential housing that is designed for occupancy by more
than four persons or families living independently of each other or
living in a congregate housing facility, at least 60% of whom are
persons of low or moderate income, including without limitation persons
of low or moderate income who are elderly and handicapped as determined
by the County and/or the MFA, provided that the percentage of low-income
persons and families shall be at least the minimum, if any, required
by federal tax law.
This Ordinance No. 280-2015.
Persons and families who are determined to lack sufficient
income to pay enough to cause private enterprise to build an adequate
supply of decent, safe and sanitary residential housing in the County
and whose incomes are below the income levels established by the MFA
and the plan to be in need of the assistance made available by the
Act, taking into consideration, without limitation, such factors as
defined under the Act. For purposes of this definition, the word "families"
shall mean a group of persons consisting of, but not limited to, the
head of a household; his or her spouse, if any; and children, if any,
who are allowable as personal exemptions for federal income tax purposes.
In accordance with the plan, persons of low and moderate income who
are eligible for assistance in accordance with the plan are as follows:
"Persons of low income" shall mean persons in households with
annual gross incomes below 60% of the Area Median Income for Doña
Ana County as approved and published each year by MFA and verified
by the County.
"Persons of moderate income" shall mean persons in households
with annual gross incomes between 60% and 80% of the Area Median Income
for Doña Ana County as approved and published each year by
MFA and verified by the County.
For purposes of this definition, "annual gross income" shall
mean the annual anticipated income from assets, regular cash or noncash
contributions, and any other resources and benefits determined to
be income by HUD, as defined in 24 CFR Section 5.609.
Policies and procedures of the MFA, including but not limited
to, mortgage loan purchasing, selling, servicing and reservation procedures,
which the MFA may update and revise from time to time as the MFA deems
appropriate.
Includes, but are not limited to, any entities that support
affordable housing and which believe that the program or project proposed
by the applicant is worthy and advisable, but which are not involved,
either directly or indirectly, in the affordable housing program or
project for which the applicant is applying.
The recertification of applicants and/or qualifying grantees
participating in any affordable housing programs or in any programs
under the Act as determined necessary from time to time by the County
and/or the MFA.
The substantial renovation or reconstruction of an existing
single-family residence or a multifamily housing project which complies
with requirements established by the MFA. Rehabilitation shall not
include routine or ordinary repairs, improvements or maintenance,
such as interior decorating, remodeling or exterior painting, except
in conjunction with other substantial renovation or reconstruction.
Any building, structure or portion thereof that is primarily
occupied, or designed or intended primarily for occupancy, as a residence
by one or more households and any real property that is offered for
sale or lease for the construction or location thereon of such a building,
structure or portion thereof. "Residential housing" includes congregate
housing, manufactured homes and housing intended to provide or providing
transitional or temporary housing for homeless persons.
The structure or the portion of the structure to benefit
from the affordable housing funds or housing assistance grant is designed
primarily for use as the principal residence of the occupant or occupants
and shall exclude vacation or recreational homes.
Any request for proposals made by the County.
The New Mexico Mortgage Finance Authority Affordable Housing
Rules adopted pursuant to NMSA 1978, § 6-27-8B.
The State of New Mexico.
Residential housing that is designed for temporary or transitional
occupancy by persons of low or moderate income or special needs.
The following requirements shall apply to all housing assistance
grants and/or affordable housing funds awarded, loaned or otherwise
distributed by the County under the Act to a qualifying grantee.
A.
Request for proposals. The County, in its discretion, may issue one
or more RFPs to solicit applications from applicants or shall otherwise
identify a qualifying grantee for the use of any affordable housing
funds or housing assistance grants to be awarded, loaned, donated
or otherwise distributed under the Act.
B.
Applicant eligibility. The following applicants are eligible under
the Act to apply for affordable housing funds or a housing assistance
grant to provide housing or related services to persons of low or
moderate income in the community:
(1)
All individuals who are qualified to receive assistance pursuant
to the Act, the Rules, and this ordinance that are approved by the
County.
(2)
All regional housing authorities and any governmental housing agencies.
(3)
All for-profit organizations, including any corporation, limited
liability company, partnership, joint venture, syndicate or association.
(4)
All nonprofit organizations meeting the following requirements:
(a)
A primary mission of the nonprofit organization must be to provide
housing or housing-related services to persons of low or moderate
income; and
(b)
The nonprofit organization must have received its 501(c)(3)
designation prior to submitting an application;
(c)
Have no part of its net earnings inuring to the benefit of any
member, founder, contributor, or individual.
(5)
All nonindividual applicants must:
(a)
Be organized under state or local laws and can provide proof
of such organization and be approved by the County;
(b)
Have a functioning accounting system that is operated in accordance
with generally accepted accounting principles or has designated an
entity that will maintain such an accounting system consistent with
generally accepted accounting principles;
(c)
Have among its purposes significant activities related to providing
housing or services to persons or households of low or moderate income;
and
(d)
Have no significant outstanding or unresolved monitoring findings
from the County, the MFA, or its most recent independent financial
audit, or if it has any such findings, it has a certified letter from
the County, the MFA, or auditor stating that the findings are in the
process of being resolved.
C.
Applications.
(1)
Process for applying. Applicants wishing to apply for a housing assistance
grant, including the use of any affordable housing funds, or to participate
in any affordable housing program are required to submit to the County
the following (as applicable):
(a)
One original application together with all required schedules,
documents, or such other information which may be required by the
County or in any RFP which may have been issued by the County.
(b)
A proposal describing the nature and scope of the affordable
housing project proposed by the applicant and for which the applicant
is applying for funds or a grant under the Act, and which documents
the need for the requested funds or grant, describes the type and/or
amount of assistance which the applicant proposes to provide to persons
of low or moderate income and documents the consistency of the proposal
with the County's affordable housing plan.
(c)
Executive summary and project narrative(s) that address the
evaluation criteria set forth in any RFP issued by the County for
the affordable housing funds or the housing assistance grant for which
the applicant is applying.
(d)
A proposed budget for the affordable housing project for which
the applicant is applying for affordable housing funds or for a housing
assistance grant.
(e)
Current independent financial audit.
(g)
If an applicant is a legal entity, including a nonprofit organization:
[1]
A current annual budget for the applicant, including all sources
and uses of funds not just those related to relevant programs and/or
a current annual budget only for the program for which the applicant
is applying for a housing assistance grant, or as otherwise may be
required by the County and/or the MFA in its discretion.
[2]
An approved mission statement that the applicant has among its
purposes significant activities related to providing housing or housing-related
services to persons or households of low or moderate income.
[3]
A list of members of the applicant's current board of directors
or other governing body, including designated homeless participation,
where required by the County.
[4]
Evidence (or a certification as may be allowed by the County)
that the applicant has a functioning accounting system that is operated
in accordance with generally accepted accounting principles or has
a designated entity that will maintain such an accounting system consistent
with generally accepted accounting principles.
[5]
Evidence that the applicant has no significant outstanding or
unresolved monitoring findings from the County, the MFA, or its most
recent independent financial audit; or if it has any significant outstanding
or unresolved monitoring findings from the County, the MFA or its
most recent independent financial audit, it has a certified letter
from the County, the MFA or the auditor stating that the findings
are in the process of being resolved.
[6]
An organizational chart, including job titles and qualifications,
for the applicant's employees or as otherwise may be required
by the County and/or the MFA in its discretion. Job descriptions may
be submitted as appropriate.
[7]
Documentation that the applicant is duly organized under state
or local law and certification that the applicant is in good standing
with any state authorities, including the Public Regulation Commission
and the Secretary of State.
(h)
Information as may be required by the County in order for it
to determine the financial and management stability of the applicant.
(i)
Information as may be required by the County in order for it
to determine the demonstrated commitment of the applicant to the community.
(j)
A completed cost-benefit analysis of the affordable housing
project proposed by the applicant. Any cost-benefit analysis must
include documentation that clearly evidences that there is a need
for the housing assistance grant being requested from the County,
that there is or will be a direct benefit from the project proposed
by the applicant to the community and/or to the purported beneficiaries
of the project, consistent with the provisions of the Act, and that
the affordable housing project will meet the needs and affordability
criteria defined in the County's affordable housing plan.
(k)
Information supporting the benefits to the community of the
affordable housing project proposed by the applicant.
(l)
Proof of substantive or matching funds or contributions and/or
in-kind donations to the proposed affordable housing project in connection
with the application for funds under the Act. Nothing contained herein
shall prevent or preclude an applicant from matching or using local,
private, or federal funds in connection with a specific housing assistance
grant or a grant of affordable housing funds under the Act.
(m)
Any certifications or other proof which the County may require
in order for the County to confirm that the applicant is in compliance
with all applicable federal, state and local laws, rules and ordinances.
(n)
A verification signed by the applicant before a notary public
that the information provided, upon penalty of perjury, is true and
correct to the best of the applicant's information, knowledge
and belief.
(o)
Certifications as may be required by the County and signed by
the chief executive officer, board president, or other authorized
official of the applicant.
(p)
Adequate information, as required by the County and/or MFA,
of the affordable housing project proposed by the applicant. The information
provided must clearly evidence the need for the subsidy, that the
value of the housing assistance grant reduces the housing costs to
persons of low or moderate income, and that there will be a direct
benefit from the project proposed by the applicant to the community
and/or to the purported beneficiaries of the project, consistent with
the provisions of the Act.
(2)
Additional requirements for multifamily housing projects applicants
who are submitting applications in connection with a multifamily housing
program. The applicant must also submit to the County following additional
information:
(a)
Verified certificate.
[1]
A verified certificate that, among other things:
[a]
Identifies every multifamily housing program, including
every assisted or insured project of HUD, RHS, FHA and any other state
or local government housing finance agency in which such applicant
has been or is a principal;
[b]
States that, except as shown on such certificate:
[i]
No mortgage on a project listed on such certificate
has ever been in default, assigned to the Federal Government or foreclosed,
nor has any mortgage relief by the mortgagee been given;
[ii]
There has not been a suspension or termination
of payments under any HUD assistance contract in which the applicant
has had a legal or beneficial interest;
[iii]
Such applicant has not been suspended, debarred
or otherwise restricted by any department or agency of the Federal
Government or any state government from doing business with such department
or agency because of misconduct or alleged misconduct; and
[iv]
The applicant has not defaulted on an obligation
covered by a surety or performance bond.
[2]
If such applicant cannot certify to each of the above, such
applicant shall submit a signed statement to explain the facts and
circumstances that such applicant believes will explain the lack of
certification. The County may then determine if such applicant is
or is not qualified.
(b)
The experience of the applicant in developing, financing and
managing multiple-family housing projects; and
(c)
Whether the applicant has been found by the United States Equal
Employment Opportunity Commission or the New Mexico Human Rights Commission
to be in noncompliance with any applicable civil rights laws.
(3)
Additional requirements for mortgage lenders. If the applicant is
a mortgage lender, the County shall consider, among other things:
(a)
The financial condition of the applicant;
(b)
The terms and conditions of any loans to be made;
(c)
The aggregate principal balances of any loans to be made to
each applicant compared with the aggregate principal balances of the
loans to be made to all other applicants;
(d)
The County's assessment of the ability of the applicant
or its designated servicer to act as originator and servicer of mortgage
loans for any multifamily housing programs or other programs to be
financed; and
(e)
Previous participation by the applicant in the MFA's programs
and HUD, Federal Housing Authority or Rural Housing Service programs.
(4)
Submission procedure.
(a)
Time, place and method of submission delivery.
[1]
If the County has issued an RFP, all applications must be received
by the County no later than the deadline set forth in the RFP; otherwise,
all applications must be received by the County by the deadline the
County has established in connection with the respective award or
grant. So that any qualifying grantees may be selected prior to January
of the year in which any housing assistance grant would be made, the
County shall issue any RFPs, solicit any applications, or otherwise
identify any qualifying grantees no later than October 15 of any year
in order to allow sufficient time for prospective applicants to respond
to any such RFP, solicitation, or otherwise, and further to allow
the MFA not less than 45 days in which to review any such applications
or otherwise determine or confirm that an applicant is a qualifying
grantee under the Act and consistent with the Rules.
[2]
Applications shall be submitted by applicants to the County
in the form required by the County and shall contain all information
which is required by this ordinance and any RFP which may have been
issued.
(b)
Additional factors. The application procedures shall take into
consideration:
[1]
Timely completion and submission to the County of an application
or other appropriate response to any solicitation by the County;
[2]
Timely submission of all other information and documentation
related to the program required by the County as set forth in this
ordinance or as set forth in the Rules;
[3]
Timely payment of any fees required to be paid to the County
at the time of submission of the application; and
[4]
Compliance with program eligibility requirements as set forth
in the Act, the Rules and this ordinance.
(c)
Submission format.
[1]
County forms or MFA forms (if available) must be used when provided
and no substitutions will be accepted; however, attachments may be
provided as necessary.
[2]
An applicant's failure to provide or complete any element
of an application, including all requirements of the County or as
may be listed on any RFP, may result in the rejection of the application
prior to review.
[3]
Illegible information, information inconsistent with other information
provided in the application, and/or incomplete forms will be treated
as missing information and evaluated accordingly.
[4]
Doña Ana County and the MFA reserve the right to request
further information from any applicant so long as the request is done
fairly and does not provide any applicant an undue advantage over
another applicant.
[5]
The County in its discretion may cancel any RFP or reject any
or all proposals in whole or part submitted by any applicant.
[6]
Neither the County nor the MFA shall be responsible for any
expenses incurred by an applicant in preparing and submitting an application.
However, the County or the MFA, as applicable, may establish and collect
fees from applicants who file applications. Notice that fees will
be charged and the amount of any such fees shall be included by the
County or the MFA, as applicable, in any RFP or otherwise shall be
advertised as part of the application solicitation process.
(5)
Review by the County. On receipt of an application, the County shall:
(a)
Determine whether the application submitted by the applicant
is complete and responsive;
(b)
Determine whether the applicant is a qualifying grantee as defined
herein and in the Act;
(c)
Review and analyze whether the applicant has shown a demonstrated
need for activities to promote and provide affordable housing and
related services to persons of low or moderate income and that the
proposal is consistent with the County's adopted Affordable Housing
Plan;
(d)
Determine whether the applicant has demonstrated experience
related to providing housing or services to persons of low or moderate
income; as well as experience and/or the capacity of the applicant
to administer the affordable housing program or project for which
the applicant has applied;
(e)
Determine whether the applicant's proposal provides a plan
for coordinating with other service providers in the community; whether
the applicant's plan addresses how persons of low income or moderate
income in need of housing and/or housing related supportive services
can receive supportive services and referrals to federal, state and
local resources; and, whether the applicant's plan addresses
outreach efforts to reach the population to be served as identified
by the County in any RFP, in the Affordable Housing Plan or otherwise;
(f)
Determine whether the applicant has support from public service
agencies, or such other support as may be required by the County and/or
the MFA in its discretion, for its proposed services in the community;
(g)
Ascertain the amount of any matching funds or in-kind services
specific to the program that may be utilized by the applicant in connection
with the program;
(h)
Ascertain whether any local, private, or federal funds will
be used by the applicant in connection with the specific grant for
which the applicant is applying;
(i)
Ascertain whether the applicant has and can demonstrate the
capability to manage the implementation of the program for which the
applicant is applying;
(j)
If the applicant is a prior recipient of either a housing assistance
grant, affordable housing funds and/or other program funds, confirm
that the applicant had no outstanding findings or matters of noncompliance
with program requirements from the County or the MFA, as applicable,
or if it has any such findings, it has a certified letter from the
County, the MFA, or auditor stating that the findings are in the process
of being resolved;
(k)
If the applicant is a prior recipient of either a housing assistance
grant, affordable housing funds and/or other program funds, confirm
that the applicant reasonably committed and expended the funds under
the prior program and/or met anticipated production levels as set
forth in any contract with the County or the MFA, as applicable, for
those prior program funds;
(l)
Evaluate the applicant's proposal in part based upon the
applicant's current financial audit;
(m)
Evaluate the applicant's proposed budget for the project
for which the applicant is applying for affordable housing funds or
a housing assistance grant, which proposed budget must be approved
by the County before the applicant can be approved as a qualifying
grantee and any expenditure of grant funds under the Act or granted
property is transferred to the applicant;
(n)
On receipt of an application from a builder, the County will
analyze the builder's ability to construct and sell sufficient
residential housing units to persons of low or moderate income within
the time or times as may be required by the County.
(o)
Consider other factors it deems appropriate to ensure a reasonable
geographic allocation for all affordable housing programs.
(6)
Certification by the County to the MFA. The County shall certify
an application to the MFA in writing upon:
(7)
Review by the MFA. The MFA upon its receipt of the certification
from the County may, in its discretion, review the application and
any of the materials submitted by the applicant to the County. The
MFA may also request any additional information from the applicant,
which it may require in order to determine whether the applicant is
a qualifying grantee under the Act and the application is complete.
The MFA will then notify the County of its determination of whether
or not the application is complete and that the requirements of the
Act and the Rules have been satisfied and the applicant is a qualifying
grantee. Unless the period is extended for good cause shown, the MFA
shall act on an application within 45 days of its receipt of any application,
which the MFA deems to be complete, and, if not acted upon, the application
shall be deemed to be approved.
(8)
Notification of acceptance. The County, upon completion of its review
of the application and an evaluation of the criteria for approval
of the application as set forth in the this ordinance and in any RFP
issued by the County and upon its determination that the applicant
is a qualifying grantee, and upon its receipt of notification from
the MFA that it agrees that the application is complete and that the
Act and Rules have been satisfied and the applicant is a qualifying
grantee, by written notice, shall notify each applicant who has submitted
an application of the approval or disapproval of its application.
Upon approval of its application, the applicant shall be considered
approved to participate in the affordable housing program. The County's
and the MFA's determination of any application shall be conclusive.
D.
Additional requirements. Upon acceptance, the following additional
requirements shall apply to any applicant who is a qualifying grantee:
(1)
Contractual requirements. The qualifying grantee shall enter into
one or more contracts with the County, which contract(s) shall be
consistent with the Act and subject to the review of the MFA, in its
discretion, and which contract(s) shall include remedies and default
provisions in the event of the unsatisfactory performance by the qualifying
grantee.
(2)
Security provisions; collateral requirements. In accordance with
the Act, the Rules and this ordinance, the County shall require the
qualifying grantee to execute documents, which will provide adequate
security against the loss of public funds or property in the event
the qualifying grantee abandons or fails to complete the affordable
housing project, and which shall further provide, as may be permitted
by law, for the recovery of any attorneys' fees and costs which
the County and/or the MFA may incur in enforcing the provisions of
this ordinance, the Rules, the Act and/or any agreement entered into
by the County and the qualifying grantee, and which documents may
include, but are not limited to the following: note, mortgage, loan
agreement, land use restriction agreement, restrictive covenant agreements
and/or any other agreement which the County may require in order to
allow for any funds which the qualifying grantee may receive under
a housing assistance grant or affordable housing funds to be adequately
secured and to allow the County and the MFA to ensure that such funds
shall be used by the qualifying grantee in accordance with the Act,
the Rules and this ordinance.
(3)
Performance schedule and criteria. The qualifying grantee shall be
required to abide by a reasonable performance schedule and performance
criteria that the County, in its discretion, may establish.
(4)
Examination of books and records. The qualifying grantee shall submit
to and the County shall cause to be made such examinations of the
books and records of each qualifying grantee as the County and/or
the MFA deems necessary or appropriate to determine the qualifying
grantee's compliance with the terms of the Act, the Rules, this
ordinance and any contracts between the qualifying grantee and the
County. The County and/or the MFA may require each qualifying grantee
to pay the costs of any such examination.
(5)
Infrastructure cost reimbursement contracts.
(a)
Cost reimbursements. Payment to a qualifying grantee under cost
reimbursable contract provisions shall be made upon the County's
receipt from the qualifying grantee of certified and documented invoices
for actual expenditures allowable under the terms of any agreement
between the qualifying grantee and the County.
(b)
Cost reimbursements for units of service. Payment under any
unit cost contract provisions shall be made upon the County's
receipt from the qualifying grantee of a certified and documented
invoice showing the number of units of service provided during the
billing period.
(c)
Rate at which costs incurred. Under unit cost or cost reimbursable
contracts, it is anticipated that costs will be incurred by the qualifying
grantee at an approximate level rate during the term of any agreement
between the qualifying grantee and the County. If the County determines
that the qualifying grantee is underspending or overspending, then
the County may reduce the budget and/or exercise such other budgetary
fiscal controls it deems appropriate.
(d)
Invoices. Qualifying grantees shall not submit invoices more
than once a month unless written approval is obtained in advance from
the County. Failure to submit invoices within 20 calendar days of
the close of the month for which payment is sought may result in the
nonavailability of funds for reimbursement.
(e)
No dual application of costs. The qualifying grantee shall certify
that any direct or indirect costs claimed by the qualifying grantee
will not be allocable to or included as a cost of any other program,
project, contract, or activity operated by the qualifying grantee
and which has not been approved by the County in advance, in writing.
(f)
Prohibition of substitution of funds. Any affordable housing
funds or other amounts received by qualifying grantee may not be used
by qualifying grantee to replace other amounts made available or designated
by the state or local governments through appropriations for use for
the purposes of the Act.
(g)
Cost allocation. The qualifying grantee shall clearly identify
and distribute all costs incurred pertaining to the affordable housing
project by a methodology and cost allocation plan at times and in
a manner prescribed by or acceptable to the County.
(6)
Additional information. Qualifying grantees shall provide the County
with any and all information which the County may reasonably require
in order for it to confirm that the qualifying grantees continue to
satisfy the requirements of the Act, the Rules and this ordinance
throughout the term of any contract and/or any affordability period
or otherwise as may be required by the County or the MFA in its discretion.
At a minimum, on an annual basis, the County shall certify to the
MFA in writing that to the best of its knowledge the qualifying grantee
is in compliance with applicable provisions of the Act, the Rules
and this ordinance.
E.
Affordable housing requirements. All affordable housing funds or
housing assistance grants awarded under the Act are to be used by
qualifying grantees for the benefit of persons of low or moderate
income subject to the provisions of the Act and with particular regard
to their housing related needs.
(1)
Single-family property. Qualifying grantees shall agree that they
shall maintain any single-family property which has been acquired,
rehabilitated, weatherized, converted, leased, repaired, constructed,
or which property has otherwise benefited from affordable housing
funds, including but not limited to any loans which have been repaid
with affordable housing funds and which loans previously were secured
by such properties, as Affordable Housing for so long as any or all
of the affordable housing funds which have been awarded, loaned, or
otherwise conveyed to the qualifying grantee are unpaid and outstanding
or the affordability period, whichever is longer.
(2)
Multifamily property.
(a)
Single apartment within a multifamily property. Qualifying grantees
shall agree that if any single apartments are to be rehabilitated,
weatherized, converted, leased, repaired, constructed or otherwise
are to benefit from affordable housing funds, those apartments shall
be leased to persons of low or moderate income at the time of any
such award. Qualifying grantees who are the landlords and/or owners
of such properties shall further agree to contribute at least 60%
of the cost of the rehabilitation, weatherization, conversion, lease,
repair, and/or construction. Qualifying grantees also shall agree
that the persons of low or moderate income who are tenants of those
apartments shall be allowed to remain tenants for so long as there
are no uncured defaults by those tenants under their respective leases
and provided that there is no just cause for the landlord to terminate
any lease agreement with those tenants.
(b)
Multiple apartments. Qualifying grantees shall agree that if
multiple apartments or an entire multifamily property is to be acquired,
rehabilitated, weatherized, converted, leased, repaired, constructed
or otherwise is to benefit from affordable housing funds, including
but not limited to any loans which have been repaid with affordable
housing funds and which loans previously were secured by such properties,
they shall maintain not less than 60% of the housing units as affordable
housing for so long as any or all of the affordable housing funds
which have been awarded, loaned, or otherwise conveyed to the qualifying
grantee are unpaid and outstanding or the affordability period, whichever
is longer.
(3)
Nonresidential property. Qualifying grantees shall agree that they
shall maintain any nonresidential property which has been acquired,
rehabilitated, weatherized, converted, leased, repaired, constructed,
or which property has otherwise benefitted from affordable housing
funds, including but not limited to any loans which have been repaid
with affordable housing funds and which loans previously were secured
by such properties, as a facility which provides housing-related services
to persons of low or moderate income for so long as any or all of
the affordable housing funds which have been awarded, loaned, or otherwise
conveyed to the qualifying grantee are unpaid and outstanding or the
affordability period, whichever is longer.
(4)
Housing assistance grant affordability requirements. Qualifying grantees shall agree that they shall maintain any land or buildings received as a housing assistance grant either as either single-family or multifamily affordable housing in accordance with § 123-4E(1) and (2) of this ordinance or as a facility which provides housing-related services to persons of low or moderate income in accordance with § 123-4E(3) of this ordinance (as applicable) for the duration of the affordability period. Qualifying grantees shall agree that they shall maintain any land or buildings for which they have received the costs of infrastructure as a housing assistance grant either as either single-family or multifamily affordable housing or as a facility which provides housing-related services to persons of low or moderate income (as applicable) for the duration of the affordability period. In calculating the affordability period for housing assistance grants of either land or buildings, the fair market value of the land or buildings or the costs of infrastructure at the time of the donation by the County shall apply.
(5)
Affordability period. The County, in its discretion, may increase the affordability period in any contract, note, mortgage, loan agreement, land use restriction agreement, restrictive covenant agreements and/or any other agreement which the County may enter into with any qualifying grantee or beneficiary of the affordable housing funds or of the housing assistance grant. (See definition of "affordability period" in § 123-3 of this ordinance.) Notwithstanding the foregoing, in the discretion of the MFA, weatherization funds conveyed from the state to the MFA and/or any other similar conveyances where an affordability period is not practical, shall not be subject to the affordability period requirements of this Subsection E, but nevertheless, any such conveyances may be subject to recapture on some prorated basis as determined by the County and/or the MFA.
F.
Consent to jurisdiction. Each qualifying grantee shall consent to
the jurisdiction of the courts of the state over any proceeding to
enforce compliance with the terms of the Act, the Rules and this ordinance
and any agreement between the qualifying grantee and the County and/or
the MFA.
G.
Recertification procedures.
(1)
The qualifying grantee must meet the requirements of the Act, the
Rules and this ordinance, both at the time of any award and throughout
the term of any grant and contract related thereto.
(2)
The County may establish procedures for recertifying qualifying grantees
from time to time.
(3)
Qualifying grantees that fail to satisfy the requirements for recertification
shall cease to be eligible and shall be denied further participation
in affordable housing programs until the requirements of the County
and the MFA are satisfied.
H.
Compliance with the law. The qualifying grantee shall provide the
County with any certifications or other proof that it may require
in order for the County and the MFA to confirm that the qualifying
grantee and the qualifying grantee's proposed project are in
compliance with all applicable federal, state and local laws, rules
and ordinances. At a minimum, on an annual basis, the qualifying grantee
shall provide the County with certifications and proof of compliance,
and the County shall certify to the MFA in writing that the qualifying
grantee is still in compliance with the Act and the Rules.
I.
Doña Ana County grant requirements.
(1)
The County is authorized to make housing assistance grants under
the Act. Upon determination that the County will make a housing assistance
grant, including the use of any affordable housing funds, the County
shall provide the MFA with the following:
(a)
Documentation that confirms that the County has an existing
valid Affordable Housing Plan;
(b)
Documentation that confirms that the County has an existing
valid affordable housing ordinance which provides for the authorization
of the housing assistance grant, including the use of any affordable
housing funds;
(c)
Written certification that the proposed grantee is in compliance
with the Act and the Rules so that the MFA may confirm that the application
is complete, and that the proposed grantee is a qualifying grantee
under the Act and the Rules.
(2)
Prior to the submission of the application and project authorization
to the Commission, the Commission must approve the budget submitted
by the applicant.
(3)
An action authorizing the County to make a housing assistance grant
and/or distribute affordable housing funds:
(a)
Must authorize the grant, including use of affordable housing
funds, if any;
(b)
Must state the requirements and purpose of the grant;
(c)
Must authorize the transfer or disbursement to the qualifying
grantee only after a budget is submitted to and approved by the Commission;
(d)
Must comply with the Rules, as amended; and
(e)
May provide for matching or using local, private or federal
funds either through direct participation with a federal agency pursuant
to federal law or through indirect participation through the MFA.
(5)
The County, in its discretion, may also hold any award of affordable
housing funds or any housing assistance grant made by the County in
suspense pending the issuance by the County of any RFP or pending
the award of the affordable housing funds or of the housing assistance
grant by the County to the qualifying grantee without the issuance
of an RFP by the County. Any award of affordable housing funds or
a housing assistance grant by the County shall subject the qualifying
grantee of the award or grant to the oversight of the County and the
MFA under this ordinance and the Rules.
J.
School district and public postsecondary educational institution
donations for housing projects.
(1)
If a school district or a public postsecondary education institution
intends to transfer land to the County to be further granted to a
qualifying grantee as part or all of an affordable housing project,
this transfer shall be subject to the limitations contained in the
Act that the school district and the Commission enter into a contract
that provides the school district with a negotiated number of affordable
housing units that will be reserved for employees of the school district.
Any transfer of land by a public postsecondary educational institution
shall be subject to the additional limitations contained in the Act
that:
(a)
The property transferred shall be granted to a qualifying grantee
by the County as part of a grant for an affordable housing project;
and
(b)
The governing board of the public post-secondary educational
institution and the Commission enter into a contract that provides
the public postsecondary educational institution with affordable housing
units.
(2)
As used in this section, "public postsecondary educational institution"
means a state university or a public community college. The County,
in its discretion, may also hold any housing assistance grant made
by any school district or public postsecondary educational institution
in suspense pending the issuance by the County of any RFP or pending
the award of the housing assistance grant by the County to the qualifying
grantee without the issuance of an RFP by the County. Any award of
a housing assistance grant by a school district or a public postsecondary
educational institution shall subject the qualifying grantee of the
grant to the oversight of the County and the MFA under the Rules.
The development, construction, occupancy and operation of an
affordable housing program or an affordable housing project financed
or assisted under the Act shall be undertaken in a manner consistent
with principles of nondiscrimination and equal opportunity, and the
County shall require compliance by all qualifying grantees with all
applicable federal and state laws and regulations relating to affirmative
action, nondiscrimination and equal opportunity.
The County shall administer any affordable housing programs
in accordance with provisions of the Act, the Rules, this ordinance,
any applicable state and federal laws and regulations as each of which
may be amended or supplemented from time to time. The County, in establishing,
funding and administering the affordable housing programs and by making,
executing, delivering and performing any award, contract, grant or
any other activity or transaction contemplated by the Act, shall not
violate any provision of law, rule or regulation or any decree, writ,
order, injunction, judgment, determination or award and will not contravene
the provisions of or otherwise cause a default under any of its agreements,
indentures, or other instruments to which it may be bound. Any proposed
amendment to this ordinance shall be submitted to MFA for review prior
to adoption by the Commission.
The Commission may repeal this ordinance and terminate the County's
affordable housing program and any or all contracts undertaken in
its authority. Termination shall be by ordinance at a public hearing
or in accordance with the terms of the contract. If an ordinance or
a contract is repealed or terminated, all contract provisions of the
contract regarding termination shall be satisfied.
