Doña Ana County, NM
 
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Board of County Commissioners of Doña Ana County as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Fees — See Ch. 179.
[Adopted 9-12-2006 by Ord. No. 223-06]
A. 
General use. Public improvements districts (PIDs) should be utilized primarily in connection with the financing of infrastructure for development of residential projects, master-planned communities or substantial commercial development and redevelopment. PIDs may also be used to provide an enhanced level of public infrastructure amenities and/or services. In order to avoid inefficient use of the limited resources of the County, unless otherwise agreed by the County Commission, PIDs will not be approved to finance less than $3,000,000. The County's approval of a PID shall be based on an applicant's demonstration, to the reasonable satisfaction of the County, that the PID will provide a benefit to the end-users of the PID-financed infrastructure or to the County, which benefit may include, without limitation, additional amenities, services, increased quality of development or pricing benefits. A master-planned development which has had a fiscal impact analysis which demonstrates that the cost of infrastructure delivery to the development will not have a net cost to the County will be deemed to have met the end-user benefit requirements of the County. Public improvements financed by a PID should conform to applicable County policies for development. Except as expressly agreed by the County based upon its determination that County-owned utilities will not be adversely affected, "stand-alone" utilities which compete directly or indirectly with County services shall not be financed through PIDs. Real property dedications and conveyances required by existing County policies for development, growth management and conservation shall remain in effect notwithstanding the establishment of a PID.
B. 
Costs and expenses. Unless otherwise agreed by the County, all costs and expenses incurred by the County in connection with the review of a PID application and the formation of a PID shall be paid by the applicant through advance payments as provided in §§ 159-4A and 159-5A hereof. Costs and expenses incurred by the County in connection with the application and formation of a PID shall not be liabilities of the County. Costs and expenses shall include the costs of services rendered by County staff and services rendered by outside consultants who may be retained by the County, including, but not limited to, bond counsel and other attorneys, financial advisers, engineers, appraisers, and tax consultants at the rates normally charged by those consultants.
C. 
Reimbursement. If authorized by the PID, all or part of such costs may be reimbursed to the applicant from a PID tax levy, PID special levies, PID revenues or PID bond proceeds, provided that such reimbursement shall be in conformity with federal law, state law and these guidelines. Except as otherwise agreed by the County, PIDs will construct or finance improvements on such terms and with such persons as the PID Board of Directors determines to be appropriate, in accordance with NMSA § 5-11-10(D), as amended. Public infrastructure constructed within the boundaries of the PID may be dedicated to and accepted by either the County or the PID. Unless otherwise agreed by the County, all costs of administration and operation of the PID and the operation and maintenance of public infrastructure in the PID which has not been dedicated to and accepted by the County shall be the responsibility of the PID, the applicant, applicable homeowners' associations, or any combination of the foregoing, as may be acceptable to the County and the PID.
D. 
PID Board of Directors; delegated authority. The PID initially shall be governed by a Board of Directors comprised of members of the County Commission, ex officio, or, at the option of the County Commission, five directors appointed by the County Commission, (the "PID Board"). The County Commission may, in accordance with law, delegate certain responsibilities of governance of the PID to public officials employed by the County. The day-to-day responsibilities of the PID may be performed by outside personnel pursuant to an agreement [including a PID development agreement, constituting a development agreement pursuant to NMSA § 5-11-10(A)(2), or the County staff (which development agreement may be denominated a "PID development agreement" or otherwise, at the parties' discretion, in order to avoid confusion with other development agreements entered into by the parties with respect to real property within the County]. Each PID development agreement shall comply with this article; provided that the development agreement may contain certain terms and conditions more stringent than those set forth in this article. On a date not more than six years after the formation of a PID, new PID Board members shall be elected or the governance of the PID shall revert to five members of the County Commission, in accordance with the Public Improvement District Act.[1]
[1]
Editor's Note: See NMSA § 5-11-1 et seq.
E. 
No impact on County. Unless otherwise agreed to by the County, the PIDs must be self-supporting with regard to financing, operations and maintenance, and no County funds shall be used for PID purposes. Notwithstanding anything to the contrary which may be contained herein, neither the County's property, the full faith and credit nor the taxing power of the County shall be pledged to the payment of any PID obligation or similar indebtedness. The amount and structure of debt of a PID should not have any direct negative material impact on the County's debt ratings with Standard and Poor's Corporation, Moody's Investors Services, Inc., Fitch Investor Services, Inc. or any other nationally recognized bond-rating agency service then rating the County's outstanding bonds.
F. 
PID development agreement; feasibility reports. The amount, timing and form of financing to be used by a PID shall be determined by the PID Board based upon a project feasibility report and established by agreement of the County, the PID and the applicant through a PID development agreement pursuant to NMSA § 5-11-10(A)(2).
A. 
PID review staff; preliminary tasks. The County hereby appoints PID review staff, which shall be comprised of the County Manager and additional staff designated by the County Manager. The PID review staff is authorized to obtain the input and recommendation of the County's bond counsel and financial adviser, and from other County personnel concerning the legal, financial, operational and administrative feasibility of the proposed PID financing and/or delivery of enhanced services and the sufficiency of the application and supporting documents. Each PID applicant shall meet with the PID review staff, which shall do the following:
(1) 
Make an initial assessment whether the proposed PID is consistent with the County's growth policies, land use and development policies, zoning and other applicable regulations.
(2) 
Identify any related County approvals that will be required to permit the PID, if approved by the County Commission, to construct the proposed improvements.
(3) 
Make an initial determination whether the PID applicant's ownership interest, delegation of ownership rights or other legal control of the real property proposed to be included in the PID have standing to submit a PID application.
(4) 
Establish a proposed schedule for:
(a) 
The applicant's submittal of a PID application;
(b) 
County PID staff review of the application for completeness; and
(c) 
County Commission meeting or meetings for its consideration of and action on the application.
B. 
Role of PID review staff. The determinations of the PID review staff shall be of an advisory nature, for the purposes of assisting applicants in submitting completed applications with detail and information required to enable meaningful consideration by the County Commission. Staff determinations and recommendations shall be considered by, but not be binding on, the County Commission.
C. 
Invitation to apply for PID. If the PID review staff concludes that an application is consistent with applicable County ordinances, regulations, and policies, including this article, then an invitation to submit an application will be extended to the applicant and the PID review staff will advise the applicant of the requested application contents in the matter set forth in § 159-3 hereof. If the PID review staff concludes that the application is inconsistent with applicable County ordinances, regulations and policies, including this article, then the PID review staff will notify the applicant that the applicant will not receive an invitation to submit an application. The applicant may appeal to the County Commission the decision of the PID review staff not to extend an invitation to submit an application.
Based on the recommendations of the PID review staff or the County Commission, the application should include the following information and documentation:
A. 
Legal description; consent: a description of the proposed PID, including a legal description of its boundaries, identity and addresses of all persons or entities with any interest in the property, and the names and addresses of any qualified electors [as defined in NMSA § 3-1-2(K)] located within the proposed boundaries. A current title report on the property and a certificate from the County Clerk shall be submitted as evidence of the names of persons with any interest in the land and qualified electors located within the proposed PID boundaries. Evidence satisfactory to the County of the irrevocable, unanimous consent of the number of property owners and qualified electors required by the Public Improvement District Act[1] for the creation of the PID.
[1]
Editor's Note: See NMSA § 5-11-1 et seq..
B. 
General plan: a detailed description of the types of public infrastructure to be financed by the PID, including the estimated construction or acquisition costs of the public infrastructure, projection of working capital needs, including adequate funds for repair and replacement of infrastructure, the annual operation and maintenance costs of the public infrastructure and the governmental approvals that shall be required for both the public and private improvements to be constructed and operated. The description shall contain adequate information to establish financial parameters for the operation and financing of the PID as set forth in § 159-5 of this article.
C. 
Preliminary financing plan and schedule: a proposed project schedule for construction commencement and completion of (a) the public infrastructure and (b) the private development, which shall include a financing plan for the public infrastructure, including both capital and operating/maintenance costs for all improvements that will not be dedicated to or accepted by the County but will be operated and maintained by the PID.
(1) 
The financing plan shall include projections for a period which shall be the longer of
(a) 
The expected term of existence of the PID;
(b) 
Thirty years following the creation of a PID property tax or special levy; or
(c) 
The final maturity date of any bonds issued by the PID.
(2) 
The financing plan shall include:
(a) 
The estimated costs of improvements;
(b) 
Projected costs of maintenance after construction; and
(c) 
A preliminary description of the improvements to be owned and maintained by the County and the PID.
D. 
Feasibility study: a financial feasibility study prepared by an independent professional with appropriate expertise for the entire project (or such phases of the project that are expected to be constructed during the term of the development), covering both the public infrastructure and the private development. The feasibility study shall include:
(1) 
An analysis of how the proposed debt financing, operation and maintenance costs, user charges and other PID costs shall impact the ultimate end users of the property.
(2) 
Specifically projected property taxes, property tax rates, special levies, special assessments, fees, charges and other costs that would be borne by property in the PID and an analysis of the potential impact that these taxes, levies and charges will have on the marketability of the private development and a comparison of proposed tax rates and charges in adjoining and similar areas outside of the proposed PID.
E. 
Appraisal: To the extent applicable to a request for debt financing the applicant shall provide a current appraisal (the "MAI appraisal") of the fair market value of the property within the proposed PID, including (i) the improvements to be financed by the PID and (ii) other improvements being constructed by the applicant during the PID construction period, the completion of which is guaranteed by the applicant. The MAI appraisal shall be prepared by a person who is designated as a "member appraisal institute" (MAI) and a certified general real estate appraiser (such person hereafter referred to as an "MAI appraiser"). The form and substance of the MAI appraisal shall be acceptable to the County, in its discretion.
F. 
Market demand study: to the extent applicable, a market demand study for the private development in the PID prepared or reviewed and concurred with by an independent consultant acceptable to the County. Such study shall include estimates of the revenue to be generated by the development and estimated market absorption of the private development.
G. 
Applicant financial information: upon the request of the County, a description of the applicant's professional experience and evidence demonstrating its financial capacity to undertake the development associated with the public infrastructure and private development. Such information may be accompanied by audited, reviewed or, at minimum, compiled financial statements for the most recent three years, and a description of past projects and disclosure of any material litigation.
H. 
Draft disclosure: an initial draft form of disclosure to prospective PID landowners which may be filed and recorded with the County Clerk at the time of each sale of real property within the PID, describing the anticipated and maximum tax, special levy, assessment, charge, and any other financial obligation that is anticipated to be imposed on real property within the PID, which shall be subject to County review and approval.
I. 
Operating plan: an operating plan for the PID describing the operation and maintenance of the infrastructure and all other services in the PID, the estimated costs of the same, and whether operation and maintenance is proposed to be provided by the PID or by the County.
J. 
Compliance statement: a statement describing any zoning or other development approvals that must be obtained in order to construct the improvements proposed to be financed by the PID, as well as any approvals required for the overall development of the real property which is to be served by the proposed PID.
K. 
Other information: such other information as the County may reasonably require after its initial review of the application, including but not limited to preliminary legal opinions, further information regarding the relationship of the application to the County's development objectives, additional proof of financial capability, business references, term sheets for financing and financial commitment letters. Following the application conference, the County shall, within 15 days, provide a list of the additional information items needed which is as complete as practicable.
A. 
Application submission. Ten copies of an application for the formation of a PID and an application fee as set forth in Chapter 179, Fees and Permits, (the "application fee") shall be submitted to the County Manager.
[Amended 9-27-2011 by Ord. No. 235-2011]
B. 
Application fees. The application fee shall be utilized by the County for initial application review and project feasibility analysis, including the payment of the County's financial and legal advisers, at their customary rates, to assist in the evaluation of the feasibility of the proposed PID project. Five thousand dollars of the application fee shall be nonrefundable. The balance of the application fee shall be used by the County in connection with its review of the application. If the applicant withdraws its application prior to the County's completion of its application review, the County shall remit the unused portion (if any) of the application fee (but not the nonrefundable $5,000 portion) to the applicant. Upon the applicant's request, the County will provide an accounting of expenditures of funds advanced. Any unused portion of advances shall be refunded to the applicant at such time as the County determines that all costs and expenses have been paid. The County and its legal consultants shall use reasonable efforts to determine whether any features of a PID proposed in an application appear not to be feasible, and to advise the applicant early in the review process, for the purpose of avoiding unnecessary additional costs of review.
C. 
Post-application conference.
(1) 
After the application fee has been submitted, the County Manager will arrange a conference with the appropriate PID review staff for the purpose of reviewing the application and determining whether the application is complete. The PID review staff will use its best efforts to review the application and conduct the initial conference within 30 days following receipt of the application and payment of the application fee.
(2) 
If, following the application conference or any other time during the application process, the PID review staff requests additional information, the applicant shall provide any and all supplemental information requested, in accordance with the provisions of § 159-3K of this article.
D. 
PID review staff report; forwarding of application to County Commission.
(1) 
After analysis of an application as supplemented, the PID review staff, under the direction of the County Manager or his/her designee, will prepare a report including recommendations relating to the PID, and an analysis of the impact of the formation of the PID and its effects on the County. The report may provide a recommended disposition of the application and any additional requirements that are recommended in connection with the application and/or the PID. The County shall use its best efforts to complete the analyses and report concerning the application within 15 days following the initial application conference. Recommendations of the PID review staff are advisory and are not binding on the County Commission.
(2) 
If all costs billed to or incurred by the County have been paid by the applicant by a date at least 14 days prior to the date of the meeting of the County Commission at which the appropriate resolution(s) approving the application is to be introduced, and if the application meets the qualifications provided herein, the application, along with any report and recommendations by the PID review staff, will be forwarded to the County Commission, along with drafts of the appropriate implementing resolution(s).
E. 
PID development agreement. The applicant and the staff of the County shall coordinate a schedule of events for formation of the PID and shall negotiate an appropriate PID development agreement between the County and the applicant which shall be entered into prior to formation of the PID which, if approved by the County Commission, shall incorporate the recommendations of the PID review staff relating to such PID, and any other restrictions, provisions and agreements required by the County.
F. 
Preliminary approval. An applicant may request preliminary, nonbinding approval of its PID application by the County Commission ("preliminary approval").
(1) 
A request for preliminary approval will be considered following payment of the application fee and information such as the following:
(a) 
A description of the proposed PID's boundaries;
(b) 
A description of the improvements to be constructed by the applicant;
(c) 
The estimated construction costs of the improvements and anticipated completion time;
(d) 
A description, by category, of improvements and related costs to be financed by the PID;
(e) 
The estimated issuance amount of PID bonds;
(f) 
The total annual special levy amount (i.e., estimated aggregate annual debt service on bonds); and
(g) 
The maximum annual PID property tax or, in the case of a special levy, the allocation method and maximum special levy per dwelling unit (single-family residences) or per acre (multifamily and commercial), and the method by which the levy will be allocated from a bulk tract to finished lots.
(2) 
The PID review staff report will advise the County Commission whether preliminary approval is recommended, not recommended, or that no recommendation is made.
G. 
Additional fees. An applicant that has received preliminary approval may be required to make additional advances as the County staff determines are necessary to pay the costs of reviewing the applicant's request for formal approval of the formation of the PID based on a PID development agreement within the meaning of the Public Improvement District Act.[1] An applicant may be required to submit an additional application fee if, in County staff's determination, the application for formal approval of a PID departs substantially from the parameters set forth in the application for preliminary approval.
[1]
Editor's Note: See NMSA § 5-11-1 et seq..
H. 
Approval of PID formation and PID financing. The County Commission may consider the granting of formal approval to the formation of the PID based on the terms of the PID development agreement, which may be approved prior to or concurrently with the approval of the formation of the PID. The County Commission may include in its approval of the formation of the PID the issuance of one or more series of PID bonds, subject to the terms and conditions of the PID development agreement. The County Commission's approval of PID formation and issuance of bonds shall be conditioned on the requirement that the PID shall utilize bond counsel, underwriters and/or other consultants selected by or otherwise acceptable to the County. PID development agreements shall not be amended without express written approval by the County Commission.
A. 
PID administration expense fee. In addition to the amounts set forth in § 159-4A, upon formation of a PID the applicant shall deposit with the PID a nonrefundable administrative expense fee (the "administrative expense fee") in the amount set forth in Chapter 179, Fees and Permits. The administrative expense fee shall be applied by the PID to the costs and expenses incurred in connection with the formation, election costs, administration, operation and maintenance of the PID or its public improvements. From time to time, upon depletion of the administrative expense fee, the PID may request, and the applicant shall promptly deposit with the PID, additional amounts deemed by the PID to be reasonably necessary for the purposes contemplated in this Subsection A. Nothing in this Subsection A shall preclude the reimbursement of such expenses from PID taxes, levies, charges or bond proceeds, as permitted by the Public Improvement District Act.
[Amended 9-27-2011 by Ord. No. 235-2011]
B. 
Administration, operation and maintenance charges. In order to provide for the PID to be self-supporting for its administrative, operation and maintenance expenses, and to finance services in addition to those provided by the County, the County may condition its approval of a PID upon the PID's imposition of an ad valorem tax of up to $3 per $1,000 of assessed value. The PID's imposition of such administration, operation and maintenance charges would not be a tax or charge of the County, but would be imposed in accordance with the provisions of NMSA § 5-11-23, as amended, upon the PID taxable property, for the administration, operation and maintenance of property which is not County-owned infrastructure otherwise maintained by the County. However, to the extent permitted by law, the PID shall be entitled to charge such rates, fees and charges to property owners as are necessary to address any shortfall in the expense required to operate and maintain the PID's improvements. Such rates, fees and charges shall be established in the development agreement for the PID. Nothing in this section shall be construed as limiting the authority of a PID to impose a special levy or other PID charges for administration, operation and maintenance expenses to the extent permitted under the Public Improvement District Act and determined to be feasible by the County or the PID Board, as applicable.
C. 
General obligation bonds. General obligation bonds of the PID shall be payable from an ad valorem tax on all taxable property located within the PID designated by the general plan for the PID as subject to the PID property tax as required by the Public Improvement District Act.
(1) 
An applicant for general obligation bonds shall describe to the PID Board, in a project feasibility report, the following:
(a) 
The current direct and overlapping tax and assessment burden on the taxable property that is proposed to be taxed and the fair market value and assessed valuation of the taxable property as shown on the most recent assessment roll.
(b) 
The projected amount and timing of PID general obligation bonds to be issued.
(c) 
The projected market absorption of development within the PID.
(d) 
The effect of the PID bond issuance on PID tax rates, calculated at the beginning, middle and end of the market absorption period or based on the phasing of the project to be financed, as applicable.
(e) 
An estimate of the applicant's construction costs associated with the public improvements, in excess of the estimated PID-funded costs of the project.
(f) 
The necessity of the applicant and the PID entering into a contribution agreement, which may require a letter of credit or other third-party guarantee by the applicant.
(2) 
The projected tax rate for debt service set forth in the feasibility report shall be established in the PID development agreement, and may include provisions which (i) limit the maximum tax rate that will be imposed by the PID for the payment of debt service on PID bonds, (ii) require a contribution agreement from the applicant for the payment of debt service in the event of a shortfall in revenue from the PID tax revenues projected in connection with, and at the time of, PID formation, or (iii) establish, to the County's satisfaction, other protection for homeowners or other end-users of the property located in the PID against excessive tax rates in the event that PID indebtedness exceeds PID tax revenues available to pay debt service in any particular year. The County shall exercise its foreclosure rights associated with the nonpayment of property taxes by owners of property located within the PID and reimburse the applicant, upon the applicant's written request, for any payments made by the applicant to cover shortfalls in revenue necessary to pay debt service resulting from the nonpayment of property taxes by such owners.
D. 
Special levy bonds. Special levy bonds shall be secured by a first lien (co-equal to the lien for general taxes and prior special assessments) on the property benefited in the manner contemplated by NMSA § 5-11-20(G).
(1) 
Applicants for special levy bonds shall describe, in each project feasibility report, the following:
(a) 
The current direct and overlapping tax assessment burdens and special levy on real property to comprise the PID and the full cash value and assessed valuation of that property as shown on the most recent assessment roll.
(b) 
The projected amount and timing of PID special levy bonds to be issued.
(c) 
The projected market absorption of development within the PID.
(d) 
The special levy burden to be placed on the prospective assessed parcels and the anticipated methodology of assessment.
(e) 
An estimate of the applicant's construction cost associated with the public improvements in excess of the estimated PID-funded costs of the project.
(f) 
The necessity of the applicant and the PID entering into a contribution agreement, which may require a letter of credit or other third-party guarantee by the applicant.
(2) 
Unless otherwise agreed by the County, at the time the PID is formed, the maximum allowable rate of special levy for residential property shall not cause the total tax and assessment obligation for such property, including projected ad valorem taxes, special levies and special assessments, to exceed 1.99% of the anticipated market value of residential property as determined by a then-current MAI appraisal. The 1.99% shall include all known and authorized, but unissued debt and any other anticipated fees or assessments which may be imposed by the County or special district on a property within the PID; i.e., special assessment districts, including the proposed maximum special levy, except service charges for utilities and refuse. The PID shall exercise its foreclosure rights associated with the nonpayment of special levies and special assessments by owners of property located within the PID and reimburse the applicant, upon the applicant's written request, for any payments made by the applicant to cover shortfalls in revenue necessary to pay debt service resulting from the nonpayment of special levies and special assessments by such owners.
E. 
Revenue bonds.
(1) 
Revenue bonds shall be payable from a PID revenue source.
(2) 
An applicant for revenue bonds shall describe, in each project feasibility report, the following:
(a) 
The current fee structure for comparable services or otherwise incurred by persons who would be responsible for paying the proposed rates, fees, and charges.
(b) 
The revenue source from which bonds shall be payable. The County reserves the right to require the applicant to produce such independently prepared feasibility studies or reports as it deems necessary to confirm the amount and availability of revenues.
(c) 
The projected market absorption of development within the PID.
(d) 
The projected amount and timing of PID revenue bonds to be issued.
(e) 
The financial impact of the proposed rates, fees and charges on prospective residents or other users of such rates, fees and charges.
(f) 
An estimate of the applicant's construction cost associated with the public improvements in excess of the estimated PID-funded costs of the project.
(g) 
The necessity of the applicant and the PID entering into a contribution agreement, which may require a letter of credit or other third-party guarantee by the applicant.
F. 
Suitability. The County may require that the PID only have the power to sell the proposed bonds to suitable investors. If the County chooses to impose limitations on the PID's power to sell the proposed bonds to suitable investors and the proposed bond issue is not rated (either on its own merits or by the use of appropriate credit enhancement) in one of the three highest rating categories used by Standard and Poor's Corporation, Moody's Investors Services, Inc., Fitch Investors Services, Inc. or any other nationally recognized bond-rating agency service, then the bonds must have minimum denominations of $100,000 and be available for purchase and restricted with respect to resale to "qualified institutional buyers" (as such term is defined in Rule 144A of the Securities and Exchange Commission) or to "accredited investors" (as such term is defined in Rule 501 of Regulation D of the Rules Governing the Limited Offering and Sale Securities without Registration under the Securities Act of 1933). The County may choose to have investor suitability achieved through the rating requirements set forth in the preceding sentence or the establishment of large minimum denominations (e.g., not less than $100,000) and, if the County determines it is appropriate, covenants limiting secondary market sales of PID bonds through registered broker-dealers. Notwithstanding the restrictions pertaining to public sales and private placements of bonds which the County may impose pursuant to this section, the restrictions may be modified or relaxed if other financing structures or features are presented which, in the sole discretion of the County Commission, provide other means to address investor suitability concerns. The minimum denomination requirements set forth above for PID bonds which are initially issued without rating shall not continue to apply if the PID subsequently obtains a rating in one of the three highest rating categories as provided in this section.
G. 
Bond counsel. Unless otherwise determined by the County, the County shall retain its own bond counsel to act as bond counsel in connection with the issuance of any PID bonds. From time to time the County may request from bond counsel such opinions as it deems necessary in connection with the formation and activities of the PID.
A. 
Contribution. At the time the PID is formed, financial projections must demonstrate that the landowners shall provide over the life of the project at least $0.25 in infrastructure or community improvements (which may include, for example, dry utilities and other improvements for the benefit of the property owners within the PID, irrespective of whether such improvements are publicly or privately owned) for each $1 of debt to be issued by a PID to finance public infrastructure purposes, except as otherwise determined by the County in its discretion. The County, in its discretion, may condition approval of PID formation on additional financing requirements, including, without limitation, the deposit of cash or a letter of credit (or similar credit facility) as security for completion of a portion of the infrastructure development as specified in the PID development agreement. If agreed to by the County or PID Board, as applicable, in the discretion of the County or PID Board, infrastructure and community improvements constructed or acquired by the applicant prior to, contemporaneously with or subsequent to the formation of the PID may be included in calculating the applicant's compliance with this § 159-6; provided that no improvements which have not already been constructed or acquired shall be included in that calculation unless the completion of the improvements is guaranteed or secured by an appropriate completion bond, cash deposit or other security acceptable to the County or PID Board, as applicable.
B. 
Debt service reserve funds. If allowed by law (including any applicable federal laws relating to the tax-free status of bonds) and required by the County, all bond issues shall include a debt service reserve fund in an amount acceptable to the County and the PID Board.
C. 
Indemnity.
(1) 
If the applicant owns 50% or more of the undeveloped land within the boundaries of the PID, the County may require the applicant (or such other third party acceptable to the County and the PID) to indemnify the County and the PID and their agents and employees and shall hold the County and the PID and their agents, officers and employees harmless for, from and against any and all liabilities, claims, costs and expenses, including attorneys' fees, incurred in any challenge or proceeding relevant to the formation, operation, administration of the PID, the offer and sale of PID bonds, and the levying by the PID of any tax, assessment, special levy or charge.
(2) 
If the applicant owns less than 50% of the undeveloped land within the boundaries of the PID, the County may require the applicant (or such other third party acceptable to the County and the PID) to indemnify the County and the PID and their agents and employees and shall hold the County and the PID and their agents, officers and employees harmless for, from and against any and all liabilities, claims, costs and expenses, including attorneys' fees, incurred in any challenge or proceeding relevant to the formation, operation, administration of the PID, the offer and sale of PID bonds, and the levying by the PID of any tax, assessment, special levy or charge in proportion to the percentage of the undeveloped land owned by the applicant.
(3) 
The applicant shall not be required to indemnify the County, the PID or its agents, officers or employees against any liability or claim relating to the continuing operation or maintenance of infrastructure after it is dedicated to and accepted by either the County or the PID. To the extent not prohibited by applicable law, the applicant's indemnity obligations shall not extend to claims arising from the negligence or wrongful conduct of the County, the PID or their respective agents, officers or employees or to claims arising from circumstances beyond the control of the applicant.
D. 
Environmental site assessments. Unless otherwise provided to the County pursuant to other requirements prior to PID financing and acquisition by the PID or County, the PID and County shall require an independent environmental report or assessment of any real property which shall be dedicated to or otherwise owned, leased or operated by the County or the PID and a proposed form of indemnity agreement with respect to all environmental liability.
E. 
Refinancing and refunding bonds. Refinancing and refunding of bonds issued on behalf of a PID shall be considered using the same criteria set forth in this article and, in particular, § 159-5. Refinancing and refunding shall be expected to either:
(1) 
Generate interest rate or net present value savings;
(2) 
Restructure payment of principal;
(3) 
Reimburse the applicant for actual costs expended for public improvements contemplated to be part of the proposed project; or
(4) 
Eliminate burdensome covenants.
F. 
Cost of change. Applicants shall be responsible for all additional costs and expenses incurred in any special levy or property tax modifications resulting from changes to the development not anticipated in the application.
G. 
Discretion and waiver. Based upon the recommendations of PID review staff and/or financing and legal consultants retained by the County, the County Commission may approve PID applications which do not meet the foregoing criteria, if the County Commission, in its discretion, determines that the particular features of the proposed PID, likelihood that the PID's projects and purposes will be successfully completed and mechanisms protecting against default on bonds warrant that the foregoing criteria need not be applied. In making that determination, the County Commission may consider an opinion of an underwriter with a reputation satisfactory to the County Commission that the particular features of the PID, the proposed projects and the bonds proposed to be issued can be successfully marketed and that the plan of finance is feasible.
H. 
Purchaser disclosure; marketing materials. Each purchaser of real property located in the PID shall execute an acknowledgment of the PID disclosure form. The applicant shall also supply the County with a copy of the receipt. (Applicants are required to describe in their promotional material the financial and other relative impacts on the developments being induced in a PID. Copies of the disclosure form must be placed on file with the County.)
I. 
Amendments. All amendments to this article shall have a prospective effect only and shall not in any way affect or otherwise modify the approval of a preexisting PID.
[Adopted 8-28-2007 by Ord. No. 231-07]
A. 
Purpose. This article is intended to serve as guidelines for the purpose of considering and, as appropriate, approving the establishment of tax increment development districts and the issuance of bonds of such districts pursuant to the Tax Increment for Development Act (the Act).[1] The purpose of this article is to enable the County to make a reasoned judgment concerning the terms and conditions upon which to approve the formation of a tax increment development district (TIDD) and to provide procedures for the County to consider TIDD applications. Capitalized terms not otherwise defined herein are as defined in the Act.
[1]
Editor's Note: See NMSA § 5-15-1 et seq.
B. 
Purpose of public infrastructure. TIDDs should be utilized for the financing of on-site and off-site public infrastructure for economic development or redevelopment that facilitates and supports development and job creation. Public infrastructure financed by a TIDD shall:
(1) 
Enhance the sustainability of the local, regional or statewide economy;
(2) 
Support the creation of jobs, school sites and facilities and workforce housing; and
(3) 
Generate tax revenue for the provision of public improvements.
C. 
Compliance with County policy. Public improvements financed by a TIDD should be in conformance with applicable long-range County policies for development; other ordinances applicable to the affected land, including annexation ordinances and any related annexation agreements and all supplements and subsequent enactments relating to these measures. Existing County policies for development, growth management and conservation shall remain in effect and shall not be waived or relaxed upon the creation of a TIDD. The TIDD may use bond proceeds or other TIDD funds to purchase land, including public rights-of-way or other real property to be used for public infrastructure improvements, unless such real property would be required to be dedicated and conveyed to the County by the applicant/landowner upon development of the applicant's/landowner's property.
D. 
Costs and expenses. Unless otherwise agreed by the County, all costs and expenses incurred by the County in connection with the application and formation of a TIDD shall be paid by the applicant/landowner through advance payments as provided in §§ 159-10B and 159-11A of this article. Costs and expenses incurred by the County in connection with the application and formation of a TIDD shall not be liabilities of the County. Advance payments shall include payments for services rendered by County staff, services rendered by outside consultants who may be retained by the County, including, but not limited to, bond counsel and other attorneys, financial advisers, planners, designers, engineers, appraisers, and tax consultants. If the County uses outside consultants as "staff," such as attorneys or engineers, those consultants shall be paid their normal rate for services.
E. 
Reimbursement. Subsequent to the approval of an application for formation of a TIDD by the County, and after authorization by the TIDD exercising its sole discretion, all or part of such advance payments may be reimbursed to the applicant/landowner or to the TIDD to the extent permitted by state or federal law, from the proceeds of bonds, tax increment revenues or other legally available revenues of the TIDD. The County may, in its sole discretion, based on a particular applicant's development plan and financing plan, authorize the TIDD to reimburse up to 100% of the applicant's equity contribution upon a demonstration satisfactory to the County that the goals served by the TIDD are not compromised by such reimbursement. NMSA § 5-15-20(B) requires property owners to contribute a minimum of 20% of initial infrastructure cost prior to the issuance of gross receipts or property tax increment bonds.
F. 
TIDD Board of Directors; delegated authority. The TIDD Board shall be governed by a five-member board composed of four members appointed by the County Commission and the fifth member is to be the New Mexico Secretary of Finance and Administration or the Secretary's designee with full voting privileges. In its discretion, the County Commission may include in its four appointees a representative or representatives of the TIDD applicant/landowner. The County Commission may, in accordance with law, delegate certain responsibilities of governance of the TIDD to a committee as approved by the County Commission. The day-to-day responsibilities of the TIDD may be performed pursuant to an agreement with outside personnel (including a development agreement entered into pursuant to the Act), or County staff. Advisory committees may, at the option of the TIDD Board, be utilized. An applicant may request the formation of a single TIDD or multiple TIDDs, which are designed to finance public infrastructure projects to serve separate, but related land uses, and which rely on discrete tax increment financing approaches.
[Amended 9-27-2011 by Ord. No. 235-2011]
G. 
No impact on County. Unless otherwise agreed to by the County, the TIDD shall be self-supporting with regard to operations and maintenance of TIDD-financed public infrastructure until the dedication of the infrastructure to the County and acceptance by the County after the one-year warranty period. Following the dedication of TIDD-financed public infrastructure to the County and acceptance by the County after the one-year warranty period, operations and maintenance of TIDD-financed public infrastructure may be payable from the portion of the gross receipts tax increment or property tax increment retained by the County or from other County financing sources.
H. 
Special, limited obligations. Bonds of the TIDD shall be payable only from special funds into which are deposited certain gross receipts tax increments and property tax increments dedicated for the purpose of securing TIDD bonds in accordance with the Act. Notwithstanding anything to the contrary which may be contained herein, neither the property, the full faith and credit nor the taxing power of the County shall be pledged to the payment of any TIDD obligation or indebtedness.
I. 
TIDD financing; Commission approval. The TIDD Board shall determine, in accordance with its policies and procedures, the amount, timing and form of financing to be used by a TIDD after review of the financial feasibility study required by § 159-9G of this article. All bond proceeds generated by the financing must be spent on project costs, which may include the construction, acquisition and renovation of public infrastructure, in accordance with the bond documents and the policies and procedures of the TIDD Board. All financing shall be subject to final review and approval by the County Commission; provided, however, that financing which contemplates the issuance of a multiple series of bonds shall be approved at the time of the approval of the first issuance of bonds and the TIDD Board shall not be required to receive further approvals from the County Commission except when there is a material change affecting the financial stability of the bond, such as the amount and timing of issuance in relation to the projected build-out of the TIDD project.
J. 
Procurement. Except as otherwise determined by the County Commission, the TIDD shall construct or finance improvements on such terms and with such persons as the TIDD Board determines to be appropriate, in accordance with NMSA § 5-15-12(B), as amended.
K. 
Costs of operation, administration and maintenance. Until the completion of the public infrastructure improvements financed by the TIDD, the expiration of the one-year warranty period for such improvements and the dedication of such improvements to the County, all costs incurred by the TIDD during such period for the administration and operation of the TIDD and the operation and maintenance of such public infrastructure improvements shall be the responsibility of the TIDD, the applicant/landowner, applicable homeowners' association, or any combination of the foregoing, as may be acceptable to the applicant/landowner, County and the TIDD.
A. 
TIDD review staff; preliminary tasks. The County hereby appoints a TIDD review staff, which shall be comprised of the County Manager and additional staff designated by the County Manager. The TIDD review staff is authorized to obtain the input and recommendation of the County's bond counsel and financial adviser, and from other County personnel concerning the legal, financial, operational and administrative feasibility of the proposed TIDD financing and/or delivery of enhanced services and the sufficiency of the application and supporting documents. Each TIDD applicant shall meet with the TIDD review staff, which shall do the following:
(1) 
Make an initial assessment whether the proposed TIDD appears to be consistent with the County's land use and development policies, zoning and other applicable regulations, including applicable policies relating to economic development and job growth;
(2) 
Identify any related County approvals that will be required to permit the TIDD;
(3) 
Identify other issues specific to the applicant's proposed project that should be addressed in its application in order for the County to make the findings required by NMSA § 5-15-4(C), such as compliance with applicable County policies, rules or regulations, and the proposed project's facilitation or support of economic development, job growth and job creation, workforce housing, public school facility development and enhancement, mixed-use transit-oriented development, traditional neighborhood design or sustainable development;
(4) 
Identify the proposed improvement of the specific property within the proposed TIDD, including the expectation of the future obligations of the owner or developer and the County concerning the zoning, subdivisions, improvements, impact fees, financial responsibilities and other matters relating to the development, improvement and use of the real property within the proposed TIDD; and
(5) 
Establish a preliminary schedule for:
(a) 
The applicant's submittal of a TIDD application.
(b) 
County staff review of the application for completeness.
(c) 
A County Commission meeting or meetings for its consideration of and action on the application.
B. 
Role of TIDD review staff. The determinations of the TIDD review staff shall be of an advisory nature, for the purposes of assisting applicants in submitting completed applications with detail and information required to enable meaningful consideration by the County Commission. TIDD review staff determinations and recommendations shall be considered by, but not be binding on, the County Commission.
C. 
Invitation to apply for TIDD. If the TIDD review staff concludes that an application is consistent with applicable County ordinances, regulations, and policies, including this article, then an invitation to submit an application will be extended to the applicant and the TIDD review staff will advise the applicant of the requested application contents in the matter set forth in § 159-9 of this article. If the TIDD review staff concludes that the application is inconsistent with applicable County ordinances, regulations and policies, including this article, then the TIDD review staff will notify the applicant that the applicant will not receive an invitation to submit an application. The applicant may appeal to the County Commission the decision of the TIDD review staff not to extend an invitation to submit an application.
Based on the recommendations of the TIDD review staff or the County Commission, the TIDD application shall, at a minimum, contain the following:
A. 
Legal description: a description of the proposed TIDD, including a legal description of its boundaries, identity and addresses of all persons or entities with any interest in the property, and the names and addresses of any qualified electors [as defined in NMSA § 3-1-2(K)] located within the proposed boundaries. The description must contain an analysis of the appropriateness of the TIDD boundaries. No TIDD will be approved if the boundaries of the proposed TIDD overlap the boundaries of an existing TIDD or a prior proposed TIDD under consideration; provided, however, that a single applicant may request that a common area be included in more than one district in order to provide for a unified plan of financing so long as each individual parcel is assigned to a particular district.
B. 
Consent: if the TIDD is proposed to be formed without an election through the waiver of election provided for in the Act, evidence satisfactory to the County of the unanimous consent of owners of real property within the proposed boundaries of the TIDD to the creation of the TIDD. A current title report on the property shall be submitted as evidence of the names of persons with any interest in the land and qualified electors. In the event that any owner of property within the proposed TIDD withdraws consent to the creation of a TIDD, the applicant shall have the opportunity to submit a revised application and shall not be required to submit a new application fee as provided in § 159-8 of this article; provided that the County may request that the applicant deposit additional funds to pay costs reasonably incurred by the County in reviewing an application which has been revised as a result of a property owner's withdrawal of consent to the creation of a TIDD.
C. 
Election: If the TIDD is proposed to be formed by election, the County may require evidence satisfactory to the County of the applicant's ability to pay for an election, whether or not an all-mail-in election, and a proposed election time table.
D. 
Project description: a detailed description of the types of public infrastructure to be financed by the TIDD, including the estimated construction or acquisition costs of the public infrastructure, projection of working capital needs, including adequate funds for repair and replacement of infrastructure, the annual operation and maintenance costs of the public infrastructure and the governmental approvals and licenses that shall be required for both the public and private improvements to be constructed and operated. The description shall contain adequate information to establish financial parameters for the operation and financing of the TIDD as set forth in § 159-11 of this article. The description shall include a representation concerning the future ownership and maintenance of the public infrastructure.
E. 
Schedule: a proposed project schedule for commencement and completion of:
(1) 
The public infrastructure; and
(2) 
The private development.
F. 
Tax increment development plan: a tax increment development plan that includes the following information:
(1) 
Whether gross receipts tax increment bonds or property tax increment bonds or both are proposed;
(2) 
The public improvements proposed to be financed by each type of bond financing proposed along with a description of the public improvements and an estimate of the costs of completion;
(3) 
The estimated annual gross receipts tax increment to be generated by the TIDD project; and the portion of that gross receipts tax increment proposed to be pledged as security for gross receipts tax increment bonds (which portion may not exceed 75% of the gross receipts tax increment), if applicable;
(4) 
The estimated annual property tax increment to be generated by the TIDD project and the portion of that property tax increment proposed to be pledged as security for property tax increment bonds (which portion may not exceed 75% of the property tax increment), if applicable;
(5) 
Any proposed use of gross receipts tax increment revenues or property tax increment revenues other than to secure the payment of bonds;
(6) 
The proposed land uses for the TIDD project, including a map depicting the geographic boundaries of the TIDD;
(7) 
The number and types of jobs expected to be created by the TIDD project during build-out of the TIDD and after completion of the TIDD;
(8) 
The amount and characteristics of workforce housing expected to be created by the TIDD project;
(9) 
The location and characteristics of public school facilities expected to be created, improved, rehabilitated or constructed by the TIDD project;
(10) 
A description of innovative planning techniques, including mixed-use transit-oriented development, traditional neighborhood design or sustainable development techniques, that the County should find to be beneficial and that are proposed to be incorporated into the TIDD project; and
(11) 
The amount, type and source of private investment in the TIDD project.
G. 
Financial feasibility study: a financial feasibility study (which shall be satisfactory to the County and prepared by an independent professional with appropriate expertise) for the entire project (or such phases of the project that are expected to be constructed during the term of the TIDD) covering both the public infrastructure and the private development and including appropriate cash flow analysis addressing projected tax increment revenues. The financial feasibility study shall include projections for a period which shall be the longest of (i) the expected term of existence of the TIDD, (ii) the anticipated period during which tax increment is to be collected by the TIDD, or (iii) the proposed final maturity date of any bonds issued by the TIDD. The financial feasibility study shall include:
(1) 
An analysis of the financing and the estimated costs of the improvements, services and benefits to result from the formation of the proposed TIDD (including the time estimated to be necessary to complete the TIDD improvements).
(2) 
Projected costs of maintenance after construction.
(3) 
A complete description of the improvements to be owned and maintained by the County.
(4) 
A financing plan for any private development in the TIDD which is not expected to be dedicated to the County.
(5) 
A market absorption study for the development in the TIDD prepared by an independent consultant acceptable to the County.
H. 
Equity contribution: a description of the proposed equity contribution from the applicant and a calendar showing the anticipated timing and sources of such contribution. An equity contribution shall be equal to a minimum of 20% of estimated initial infrastructure cost prior to the issuance of gross receipts or property tax increment bonds.
I. 
Applicant financial information: a description of the applicant's professional experience and evidence demonstrating its financial capacity to undertake the development associated with the public infrastructure and private development. The application shall also describe the direct and indirect benefits to all parties with financial interest in the proposed development. Such information shall be accompanied by three-year audited financial statements, if available, or comparable information attesting to the financial strength and experience of the development parties along with a description of past projects and disclosure of any material litigation.
J. 
Operating plan: an operating plan for the TIDD describing the extent of the TIDD's responsibilities for and anticipated costs of operation and maintenance of TIDD-financed public infrastructure prior to the dedication to the County of such infrastructure, the method of carrying out those responsibilities, and specifying whether the TIDD or another entity will be responsible for operation and maintenance of specific public infrastructure improvements until dedicated and accepted by the County. Following the dedication of TIDD-financed public infrastructure to the County, the costs of operation and maintenance of such infrastructure will be financed through the use of the portion of the gross receipts tax increment and/or property tax increment retained by the County or through other County financing sources.
K. 
Compliance statement: a description of how the proposed TIDD meets the existing development objectives of the County, including the degree to which the TIDD is consistent with growth management policies and zoning requirements, and the degree to which the land use plan for the TIDD is consistent with the County's applicable long-range policies for development, growth management and conservation.
L. 
Proposed development agreement: consistent with the policies set forth in this article, a description of the proposed terms of a development agreement including the improvement of the specific property within the proposed TIDD, including the expectation of the future obligations of the owner or developer and the County concerning the zoning, subdivisions, improvement, impact fees, financial responsibilities and other matters relating to the development, improvement and use of the real property within the proposed TIDD. The description of proposed development agreement terms shall not be required to include the level of detail expected to be included in the proposed development agreement to be negotiated and shall not be binding on the County or the developer and shall not constitute a legal cause of action or create vested rights.
M. 
Resolutions:
(1) 
A proposed resolution of intent to form the proposed TIDD:
(a) 
Providing that the tax increment development plan is approved pursuant to NMSA § 5-15-4(A); and
(b) 
Directing publication of notice of a public hearing concerning the formation of the TIDD, which hearing shall be held no sooner than 30 days and no later than 60 days after the adoption of the resolution of intent in accordance with NMSA §§ 5-15-8(E) and 5-15-6.
(2) 
A proposed resolution ordering the formation of the TIDD and setting the matter for an election or declaring that the election is waived. The proposed resolution ordering the formation of the TIDD must address those items set forth in NMSA §§ 5-75-4(C) and 5-15-7(C).
N. 
Other information: such other information as the County may reasonably require after its initial review of the application, including but not limited to preliminary legal opinions, appraisals, further information regarding the relationship of the application to the County's development objectives, additional proof of financial capability, business references, term sheets for financing and financial commitment letters.
A. 
Application submission. Ten copies of the application for the formation of a TIDD shall be submitted to the County Manager, who shall coordinate an interdepartmental analysis of each application.
B. 
Application fees. At the time of submission of the application, the applicant shall pay an application fee as set forth in Chapter 179, Fees and Permits. The application fee shall be used by the County for costs incurred in connection with the processing and review of the application and the formation of the TIDD in accordance with the provisions of § 159-7. Five thousand dollars of the application fee shall be nonrefundable. In calculating costs incurred by the County, the County may include reasonable costs associated with the preapplication discussion contained in § 159-8. An accounting of all costs incurred by the County shall be made to the applicant at its request and, if reasonably necessary, additional funds may be requested by the County and must be paid by the applicant. If an applicant withdraws its application prior to the County's completion of its application review, the County shall return the unexpended portion (if any) of the application fee (but not the nonrefundable $5,000 portion) to the applicant. Any unused portion of the application fee shall be refunded to the applicant at such time as the County determines that all costs and expenses have been paid. The County and its legal consultants shall use reasonable efforts to determine whether any features of a TIDD proposed in an application appear not to be feasible, and to advise the applicant early in the review process for the purpose of avoiding unnecessary additional costs of review.
[Amended 9-27-2011 by Ord. No. 235-2011]
C. 
Intent resolution.
(1) 
At the applicant's request, County staff may, in its discretion, present to the County Commission a nonbinding resolution expressing the County's intent to proceed with the formation of the TIDD. Such a resolution may be based upon a preliminary application outline containing, at a minimum, the following information:
(a) 
Ownership of property proposed to be included in the TIDD.
(b) 
Location and boundaries of the proposed TIDD.
(c) 
General description of improvements to be constructed with TIDD financing and estimated costs of construction.
(d) 
Estimated principal amount of TIDD bonds proposed to be issued.
(e) 
Estimated maximum annual debt service on TIDD bonds.
(f) 
Estimated annual gross receipts tax increment to be generated by the TIDD project and the portion of such increment to be allocated during the time necessary to complete the payment of the TIDD project.
(g) 
Estimated annual property tax increment to be generated by the TIDD project and the portion of such increment to be allocated during the time necessary to complete the payment of the TIDD project.
(2) 
Any resolution adopted pursuant to this section shall express the County's nonbinding intent to proceed with the formation of the TIDD, subject to such conditions as may be set forth in the resolution.
D. 
Existing agreements. Agreements by and between the County and the applicant/landowner relating to the provision of infrastructure within the boundaries of the TIDD may exist prior to the formation of the TIDD (the "existing agreements"). Upon the mutual agreement of the applicant/landowner and the County, those existing agreements may be modified or amended and made part of the proposed development agreement as provided for in § 159-9L above. The existing agreements relating to the provision of infrastructure proposed to be furnished by the TIDD shall be identified in the application and how those existing agreements are expected to be modified shall be described.
E. 
Post-application conference. After the application fee is submitted, the County Manager shall arrange an initial conference with the applicant and the appropriate TIDD review staff, for the purpose of reviewing the application for completeness and conformity with County policies. The TIDD review staff shall use its best efforts to review the application and conduct the initial conference within 15 business days following receipt of the application and payment of the application fee.
F. 
Additional information. If at any time during the application process County staff requests additional information, the applicant shall provide any and all supplemental information requested, in accordance with the provision of § 159-9N of this article.
G. 
TIDD review staff report. After analysis of an application as supplemented, the TIDD review staff, under the direction of the County Manager or his or her assignee, will prepare a report including recommendations relating to the TIDD and an analysis of the impact of the formation of the TIDD and its effects on the County. The report may provide a recommended disposition of the application and any additional requirements that shall be placed on the applicant/landowner and the TIDD. The County shall use its best efforts to complete the analysis and report concerning the application within 30 business days following the submission of a fully complete application. Recommendations of the TIDD review staff are advisory and are not binding on the County Commission.
H. 
Transmittal to County Commission. If all costs billed to or incurred by the County have been paid by the applicant by a date at least 14 calendar days prior to the date of the meeting of the County Commission at which the appropriate legislation approving the application is to be introduced and if the application meets the qualifications provided herein, the application, along with any report and recommendations of the TIDD review staff, shall be forwarded to the County Commission, along with appropriate implementing legislation. Implementing legislation shall consist of the following:
(1) 
A resolution of intent to form the proposed TIDD:
(a) 
Providing that the tax increment development plan included with the application is approved pursuant to NMSA § 5-15-4(A), subject to the further proceedings of the County Commission in connection with the formation of the proposed TIDD; and
(b) 
Directing publication of notice of a public hearing concerning the formation of the TIDD, which hearing shall be held no sooner than 30 days and no later than 60 days after the adoption of the resolution of intent, in accordance with NMSA §§ 5-15-6(B) and 5-15-7; and
[Amended 9-27-2011 by Ord. No. 235-2011]
(2) 
A resolution ordering that the TIDD be formed and setting the matter for an election or declaring that the election is waived as provided in NMSA § 5-15-8. This formation resolution shall occur upon completion of the public hearing referenced above. Final approval of the County Commission shall be conditioned on the County Commission's conclusion that all matters necessary to be completed prior to the formation of the TIDD have been completed.
I. 
Commission approval of TIDD development agreement. If the County Commission approves an application for formation of a TIDD, the applicant/landowner and the TIDD review staff shall coordinate a schedule of events for formation of the TIDD, including either the setting of an election for the matter or declaring that the election is waived, and shall negotiate an appropriate development agreement between the County and the applicant/landowner, which development agreement shall incorporate the requirements of any report, recommendations of the County review staff relating to such TIDD, the requirements of this article and any other restrictions, provisions and agreements required by the County in its discretion. The development agreement shall be subject to approval by the County Commission.
A. 
TIDD administration expense fee. In addition to the amounts set forth in § 159-10B of this article, upon formation of a TIDD, the applicant/landowner shall deposit with the TIDD a nonrefundable administrative expense fee in the amount set forth in Chapter 179, Fees and Permits. The administrative expense fee shall be applied by the TIDD to the costs and expenses incurred in connection with the formation, review of any feasibility study, election costs, administration, operation and maintenance of the TIDD or its public improvements. From time to time, upon depletion of the administrative expense fee, the TIDD may request, and the applicant/landowner shall promptly deposit with the TIDD, additional amounts deemed by the County to be necessary for the purposes contemplated in this section. In addition, the TIDD shall also pay, on an ongoing basis, the administrative fees of the County Treasurer related to the collection and distribution of property taxes relating to the TIDD.
[Amended 9-27-2011 by Ord. No. 235-2011]
B. 
Administration, operation and maintenance charges. In order to provide for the TIDD to be self-supporting for its administrative, operation and maintenance expenses, and to finance services in addition to those provided by the County, the TIDD, unless otherwise agreed, may require the imposition of up to $5 per $1,000 of net taxable value, not as a tax or charge of the County, but in accordance with the provisions of NMSA §§ 5-15-12(A)(11) and 5-15-13(A), as amended, upon the TIDD taxable property, for the administration of the TIDD, and the operation and maintenance of property which is not County-owned infrastructure otherwise maintained by the County. Failure to impose such tax shall not impose upon the County any obligations for operations.
C. 
Debt finance terms. The amount and structure of debt of a TIDD shall not have a net negative impact on the debt or financing capabilities of the County, taking into account the basic purposes and operation of a TIDD as provided in the Act. Any debt issued shall be in accordance with the provisions of § 159-7H of this article.
D. 
Gross receipts tax increment bonds.
(1) 
Gross receipts tax increment bonds shall be payable from the authorized gross receipts tax increment from the gross receipts taxes generated from taxable activities located within the TIDD. An applicant for gross receipts tax revenue bonds shall describe in each financial feasibility study required in § 159-9G of this article the following:
(a) 
The amount and timing of TIDD gross receipts tax increment bonds to be issued.
(b) 
The expected production of gross receipts tax increment within the TIDD, and its relationship to anticipated absorption of developed real property.
(c) 
The sources of gross receipts taxes or portions thereof to be pledged to the repayment of the gross receipts tax increment bonds.
(d) 
Whether the bonds shall be publicly offered or privately placed. Publicly offered bonds shall either
[1] 
Be rated (either on their own merits or by use of appropriate credit enhancement) in one of the three highest investment grade ratings from Standard and Poor's Ratings Group, Moody's Investors Service, Inc., Fitch Ratings, or other nationally recognized bond-rating services; or
[2] 
Be issued in connection with a transaction which meets all of the following criteria:
[a] 
The minimum equity contribution, excluding real property, of the developer is at least 20% of the estimated initial cost of the project; and
[b] 
The developer and the TIDD shall enter into an appropriate contribution agreement, which may require a letter of credit or other third-party guarantee of the bonds by the developer.
(2) 
Privately placed bonds need not be rated; however, the purchasers of such bonds must be "qualified institutional buyers" (as such term is defined in Rule 144A of the Securities Exchange Commission) or the applicant/landowner or an affiliate of the applicant/landowner must agree not to resell the bonds except to "qualified institutional buyers" or "accredited investors," as such terms are defined by the SEC, in a private placement, except that bond issues having a term of less than 30 days may be purchased by a governmental entity.
(3) 
If appropriate, the applicant shall enter into a "continuing disclosure undertaking" (as required by Rule 15c2-12 of the Securities Exchange Commission) relating to the issuance of the bonds.
E. 
Property tax increment bonds.
(1) 
Property tax increment bonds shall be payable from the authorized property tax increment from taxable property located within the TIDD. Applicants for property tax increment bonds shall describe, in each financial feasibility study as required by § 159-9G of this article, the following:
(a) 
The amount and timing of TIDD property tax increment bonds to be issued.
(b) 
The expected market absorption of development within the TIDD, and its relationship to anticipated absorption of developed real property.
(c) 
The sources of the property taxes or portions thereof to be pledged to the repayment of the property tax increment bonds.
(d) 
Whether the bonds shall be publicly offered or privately placed. Publicly offered bonds shall either:
[1] 
Be rated (either on their own merits or by use of appropriate credit enhancement) in one of the three highest investment grade ratings from Standard and Poor's Ratings Group, Moody's Investors Service, Inc., Fitch Ratings, or other nationally recognized bond-rating services; or
[2] 
Be issued in connection with a transaction which meets all of the following criteria:
[a] 
The minimum equity contribution, excluding real property, of the developer is at least 20% of the estimated initial cost of the project; and
[b] 
The developer and the TIDD shall enter into an appropriate contribution agreement, which may require a letter of credit or other third-party guarantee of the bonds by the developer.
(2) 
Privately placed bonds need not be rated; however, the purchasers of such bonds must be "qualified institutional buyers" (as such term is defined in Rule 144A of the Securities Exchange Commission) or the applicant/landowner or an affiliate of the applicant/landowner and must agree not to resell the bonds except to "qualified institutional buyers" or "accredited investors," as such terms are defined by the SEC, in a private placement, except that bond issues having a term of less than 30 days may be purchased by a governmental entity.
(3) 
If appropriate, the applicant shall enter into a "continuing disclosure undertaking" (as required by Rule 15c2-12 of the Securities Exchange Commission) relating to the issuance of the bonds.
F. 
Counsel. Unless otherwise determined by the County, the County shall retain its own counsel to advise it in connection with the formation of a TIDD and all activities taken by TIDD formed by the County, the cost of which shall be paid by the TIDD, and the County's bond counsel shall be bond counsel for the issuance of TIDD bonds. From time to time, the County may request from counsel such opinions as it deems necessary in connection with the formation and activities of the TIDD.
A. 
Debt service reserve fund. If allowed by law (including any applicable federal laws relating to the tax-free status of bonds), all bond issues, except bond issues having a term of less than 30 days or bond issues that are held by the applicant/landowner or an affiliate of the applicant/landowner, shall include a debt service reserve fund in an amount acceptable to the TIDD Board.
B. 
Protection from impairment. If the provisions set forth in the Tax Increment for Development Act[1] impair the ability of a municipality, County or other public body to meet its principal or interest payment obligations for revenue bonds or general obligation bonds outstanding prior to the effective date of the Tax Increment for Development Act (March 6, 2006) that are secured by the pledge of all or part of the municipality, County or other public body's revenue gross receipts tax or property tax, then the amount otherwise payable to the district pursuant to the Tax Increment for Development Act shall be paid instead to the municipality, County or public body in an amount sufficient to meet any required payment.
[1]
Editor's Note: See NMSA § 5-15-1 et seq.
C. 
Indemnity. The County may require the applicant (or such other third party acceptable to the County and the TIDD) to indemnify and hold harmless the County and the TIDD and their officers, agents and employees from and against any and all liabilities, claims, costs and expenses, including attorneys' fees, incurred in any proceeding challenging the formation, operation, administration of the TIDD, the offer and sale of TIDD bonds, and the levying by the TIDD of any tax in accordance with the Act. To the extent not prohibited by applicable law, the applicant's indemnity obligations shall not extend to claims arising from the negligence or wrongful conduct of the County, the TIDD or their respective agents, officers or employees.
D. 
Environmental condition. Unless otherwise provided to the County pursuant to other requirements prior to TIDD financing and acquisition by the TIDD or County, the TIDD and County shall require proof that the real property which shall be dedicated to or otherwise owned, leased or operated by the County or the TIDD is free from releases of or of the existence of any substances or materials in a quantity known by applicant/landowner to be considered hazardous or toxic and requiring remediation or removal under federal, state or local environmental laws, ordinances or regulations (collectively, "environmental laws") and shall require a proposed form of indemnity agreement for the benefit of the TIDD and County with respect to any liability under applicable environmental laws arising from the release or existence of hazardous or toxic substances on the real property as of the date that the real property is dedicated, conveyed, leased or otherwise transferred to the TIDD or County by the applicant/landowner.
E. 
Refinancing and refunding bonds. Refinancing and refunding of bonds issued on behalf of a TIDD shall be considered utilizing the same criteria set forth in this article and, in particular, § 159-11D and E. Refinancing and refunding shall be expected to either (i) generate industry-accepted interest rate savings; (ii) restructure payment of principal or (iii) eliminate burdensome covenants. If the refinancing or refunding is intended to address a material adverse change affecting the financial stability of the bonds or the intent of the original development agreement, the refinancing and refunding shall be submitted to the County Commission for approval. Any refinancing or refunding shall be subject to the final review and approval of the TIDD Board.
F. 
Cost of change. The applicant shall be responsible for all costs and expenses incurred in connection with proposed changes to a TIDD application after the County has begun its review process pursuant to this article.
The appropriate officers of the County, including, without limitation, the County Manager, County Finance Director and Assistant County Manager, are authorized to take all action necessary and appropriate to effectuate the provisions of this article. The appropriate officers of the County, including, without limitation, the County Manager, County Finance Director and Assistant County Manager, also are directed to make such changes or corrections to the procedures established in this article relating to the number of days in which actions are required to be taken, the persons responsible for particular actions, the types and forms of documents required to be submitted to the County and other administrative matters which, in their judgment, are necessary and appropriate to accomplish the purposes of this article and to provide efficient administration of the TIDD process. Notice of any such changes or corrections shall be given to all persons affected thereby, and a certificate of such changes and corrections shall be filed with the County Clerk.