[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.
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.
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.
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:
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:
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
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.
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.
