Chapter 36 FINANCE AND REVENUE

The fiscal year of the city shall begin on July 1st and end on June 30th of the following calendar year. For the sake of convenience, the fiscal year may be designated by the beginning and ending calendar years or by the ending calendar year only.

(’87 Code, § 7-1-1) (Ord. 82-31; Am. Ord. 90-043)

36.02 BUDGET PROCESS; REVISION.

(A) At or before the first regular meeting of the Governing Body in the month of May, the City Manager shall submit to the Governing Body a proposed budget for the fiscal year commencing the following July. The Governing Body shall examine and revise the proposed budget utilizing whatever mechanism, including committees, work session or other processes as are appropriate, and shall conduct at least one regular or special meeting constituting a hearing at which the public shall be invited to provide comments upon the proposed budget.

(B) The Governing Body and the City Manager shall comply with all DFA requirements in the preparation and administration of the city budget.

(1) Budget adjustments between funds, from the ending fund balance account, or that increase or decrease the total budget of any single fund shall be made in accordance with the State Department of Finance and Administration’s (DFA) regulations.

(2) Budget adjustments within a single fund and department may be approved administratively according to the following thresholds:

(a) Up to $1,000 – Budget and Grants Division Manager;

(b) Up to $5,000 – Director of Financial Services;

(3) When a department budget contains more than one fund, the total of administrative budget adjustments shall not exceed $50,000 in any one fund and shall not exceed $100,000 in aggregate.

(4) Budget adjustments that exceed the above limits within a single fund and department in the aggregate during a fiscal year must be approved by resolution.

(5) Budget adjustments between projects where Governing Body approval is not required shall be approved administratively according to the following thresholds:

(a) Up to $500,000 – Director of Financial Services or designee;

(b) Greater than $500,000 – City Manager or designee.

(D) The City Manager shall submit quarterly a report to the Governing Body summarizing all budget adjustments, including project budget adjustments.

(’87 Code, § 7-1-2) (Ord. 82-31; Am. Ord. 90-043; Am. Ord. 05-14; Am. Ord. 19-32; Am. Ord. 23-14)

36.03 CLAIMS AND WARRANTS EXCEEDING BUDGET.

Neither the governing body nor any official or employee of the city shall allow or approve any claim or pay any warrant which exceeds the approved budget appropriation.

(’87 Code, § 7-1-3) (Ord. 82-31; Am. Ord. 90-043)

36.04 EFFECT OF EXPIRING TERMS.

During a fiscal year containing a regular municipal election, the governing body shall expend no more prior to the end of expiring terms than the portion of the budget proportionate to the fiscal year.

(’87 Code, § 7-1-4) (Ord. 82-31; Am. Ord. 90-043)

36.05 EXPENDITURES LIMITED TO INCOME.

The governing body shall not indebt or contract to indebt the city for debts of any kind or nature which cannot be paid by the end of the current fiscal year out of money actually collected and belonging to the then-current fiscal year in compliance with the Bateman Act, NMSA § 6-6-11, as amended. This section shall not apply to exemptions of the Bateman Act included in NMSA § 6-6-12, as amended. If it is in the best interest of the city, and the city has reasonable assurance that sufficient revenue can be appropriated, the city may enter into multi-year contracts subject to the requirements and limitations of the procurement code and contingent upon sufficient appropriations being made therefor by the Governing Body.

(’87 Code, § 7-1-5) (Ord. 82-31; Am. Ord. 90-043; Am. Ord. 23-21)

36.06 FINANCIAL RECORDS AND REPORTS.

(A) The Treasurer shall establish financial accounts, records, reports and procedures in accordance with generally accepted accounting principles and the policies established by the governing body. The Treasurer shall conform to the rules and regulations established by the local government division of the State Department of Finance and Administration, shall keep all books, records and accounts in the form prescribed by the division and the governing body, and shall make all reports as may be required by the division, the Mayor and the City Council. The Treasurer shall prepare annually, at the close of the fiscal year, a financial report showing the receipts, expenditures and balances of each fund. A copy of the financial report shall be made available to the public.

(B) The Treasurer shall maintain a cash book wherein shall be entered daily, in detail, all items of receipts and disbursements of public money, and which shall be balanced daily so as to show the balance of public money on hand at the close of each day’s business; and the cash book shall be a public record and shall be open to public inspection. Receipts shall be furnished as prescribed by NMSA § 3-37-4, as amended.

(1) Payment of funds shall be made upon a warrant of the municipality or by an authorized electronic payment method. A warrant shall be signed by the Mayor or their authorized representative, and countersigned by the City Treasurer or as prescribed by the Uniform Facsimile Signature of Public Officials Act, NMSA §§ 6-9-1 to 6-9-6. An electronic payment may be authorized by the Treasurer or their authorized representative. A warrant or electronic payment shall state the:

(a) Account or account number to which the warrant or electronic payment is payable; and

(b) Name of the payee for which the warrant or electronic payment is issued.

(2) The Treasurer shall keep a record of all warrants and electronic payments issued. The record shall show the:

(a) Unique number identifying the warrant or electronic payment;

(b) Date it was issued;

(d) Account to which the warrant or electronic payment is chargeable; and

(e) Name of the payee for which the warrant or electronic payment was issued.

(’87 Code, §§ 7-1-6, 7-1-7, 7-1-9) (Ord. 82-31; Am. Ord. 90-043; Am. Ord. 23-21)

36.07 DEPOSITS AND INVESTMENTS.

Under direction of the governing body serving as the Board of Finance, the Treasurer shall deposit and invest municipal funds as authorized and permitted by state statute.

(’87 Code, § 7-1-8) (Ord. 82-31; Am. Ord. 90-043; Am. Ord. 23-21)

36.08 ANNUAL INDEPENDENT AUDIT.

Annually, following the close of the fiscal year, the Governing Body shall contract with an independent auditor of its choice, approved by the State Auditor, or with the State Auditor’s staff. If an independent auditor is used, progress payments paid by the city shall be made in accordance with the Audit Act, NMSA §§ 12-6-1 to 12-6-15 as amended, and the State Auditor Rule, 2.2.2 NMAC (5/14/1971, as amended through 3/28/2023). Final payment shall not be made until the State Auditor has issued a determination and written finding that the audit has been made in a competent manner in accordance with the contract and applicable regulations by the State Auditor and pursuant to the requirements of the Audit Act, NMSA §§ 12-6-1 to 12-6-15 as amended, and the State Auditor Rule, 2.2.2 NMAC (5/14/1971, as amended through 3/28/2023). The governing body may, as it deems necessary, contract for special independent audits conducted in accordance with regulations established by the State Auditor and with generally accepted audit standards.

(’87 Code, § 7-1-10) (Ord. 82-31; Am. Ord. 90-043; Am. Ord. 23-21)

36.09 ASSESSMENT OF COLLECTION COSTS.

In addition to all other rates, fees, charges, amounts and penalties provided in this Code of Ordinances, each person delinquent in the payment of any amount owing to the city under this Code of Ordinances, or under any other law, rule, regulation, agreement, tariff or contract, shall be charged, and shall be responsible for payment of, all costs of collecting such delinquent amounts otherwise chargeable to such person.

(Ord. 09-45)

PROCUREMENT CODE

36.20 APPLICATION OF THE CODE.

(A) This procurement code applies to all expenditures by the City of Rio Rancho (city) for procurement of tangible personal property, services and construction.

(B) Procurement involving the expenditure of federal funds must be conducted in accordance with the mandatory applicable federal laws and regulations. Such laws and regulations will supersede this procurement code where the procurement code is inconsistent with those federal laws and regulations. Nothing in this procurement code shall prevent the city from complying with the terms and conditions of any grant, gift, or bequest that is otherwise consistent with law.

(C) When mandatory applicable state or federal law or regulations are inconsistent with the provisions of this procurement code, compliance with such state or federal law or regulations shall constitute compliance with the procurement code.

(’87 Code, § 7-2-1) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19)

36.21 DEFINITIONS.

For purposes of this procurement code, the following definitions shall apply unless the context indicates or requires a different meaning:

AREA BUSINESS is a resident business or resident contractor which:

(1) Is authorized to do and is doing business under the laws of the State of New Mexico; and

(2) Possesses a current City of Rio Rancho business registration; and

(3) Maintains a bona fide place of business within the corporate limits of the City of Rio Rancho; and

(4) Conducts its business activities, to the extent practicable, relating to the bid or proposal submitted to the city at a place of business within the corporate limits of the city; and

(5) Agrees to furnish evidence, in a form suitable to the city, of its payment of New Mexico gross receipts tax.

CATALOG PRICE is the price of items of tangible personal property in the most current catalog, price list, schedule or other form that:

(1) Is regularly maintained by the manufacturer or vendor of an item; and

(2) Is either published or otherwise available for inspection by a customer.

CENTRAL PURCHASING OFFICE is the purchasing division within the Financial Services Department.

CHANGE ORDER is a written order signed and issued by the Procurement Officer that directs the construction contractor to make changes to the work, price, or project timeline.

CONCESSION CONTRACT is a revenue-producing contract that permits the use of city property by a business for the sale of goods or services.

CONFIDENTIAL INFORMATION is any information that is available to an employee because of the employee’s status with the city and which is not a matter of public knowledge or available to the public on request.

CONSTRUCTION is building, altering, repairing, installing or demolishing, in the ordinary course of business, any public structure or building. CONSTRUCTION shall not include the routine maintenance, operation or repair of existing facilities.

CONTRACT is any agreement for the procurement of items of tangible personal property, services, and/or construction.

CONTRACT MODIFICATION is alteration of any written contract provision by mutual assent and action of the parties to the contract.

CONTRACTOR is any person, organization, or business having a contract with the city.

EMPLOYEE is an individual receiving a salary, wage or per diem and mileage from the city, whether elected or not, and any noncompensated individual performing personal services as an elected or appointed official, or otherwise, for the city.

EXTERNAL PROCUREMENT UNIT is any procurement organization not located in New Mexico, which, if located in New Mexico, would qualify as a state agency or a local public body. An agency of the United States government is an external procurement unit.

IMMEDIATE FAMILY means a spouse, children, parents, brothers and sisters.

INFORMAL BID/REQUEST FOR QUOTE is a request for price quotations for an item of tangible goods, personal property or services that does not require sealed competitive bids.

INVITATION FOR BIDS (IFB) is a document that contains a brief description of the services, construction, or items of tangible personal property to be procured; the locations where the invitation for bid can be obtained and where bids are to be received; the cost, if any, for copies of plans and specifications; the date and place of the bid opening; and any other information used in soliciting bids.

INVOICE means a document provided by a vendor or supplier to the city indicating the products, quantities and agreed-upon prices for products or services rendered for payment.

LOCAL BUSINESS is a resident business or resident contractor which:

(1) Is authorized to do and is doing business under the laws of the State of New Mexico;

(2) Possesses a current city business registration;

(3) Maintains its principal place of business within the corporate limits of the city; and

(4) Agrees to furnish evidence, in a form suitable to the city, of its payment of New Mexico gross receipts tax.

PARTICIPATION – DIRECT is any direct involvement with a contract or purchase by decision, approval, disapproval, recommendation, formulation, specification, investigation, auditing, or advice resulting in any substantive change to language or content.

PARTICIPATION – INDIRECT is any indirect action which affects or intends to affect how a contract or purchase is conceived, formed, drafted, noticed, or awarded by employing any manner of communication, influence, persuasion, incentive, coercion, or any other indirect act to influence or manipulate a certain outcome.

PRE-BID/PRE-PROPOSAL CONFERENCE is a public meeting in which the scope, objectives, techniques and specifications are explained or discussed. If attendance is identified as mandatory, potential bidders or offerors shall attend to be qualified and eligible to submit bids or proposals.

PRICE AGREEMENT is a definite or indefinite quantity contract which includes a fixed or determinable price, and which requires the issuance of a city purchase order to obtain tangible personal property, services, or construction.

PROCUREMENT means:

(1) To purchase, rent, lease, lease-purchase, or otherwise transact to acquire items of tangible personal property or services, or construction.

(2) All procurement functions and operations, which include but are not limited to preparation of specifications, solicitation of sources, qualification or disqualification of sources, preparation and award of contracts, and contract administration.

PROCUREMENT OFFICER is the City Manager, who is authorized to delegate all or part of the city’s procurement functions to one or more city employees.

PROFESSIONAL SERVICES include but are not limited to the services of architects, archaeologists, engineers, land surveyors, landscape architects, medical arts practitioners, scientists, management and systems analysts, certified public accountants, registered public accountants, lawyers, psychologists, planners, researchers, and persons or businesses who provide similar services which require specialized knowledge, training, or education.

PUBLIC WORKS include projects for construction, construction management, architectural, landscape architectural, engineering, surveying, interior design services, repairs, alteration, removal, demolition, installation or extension of any improvement to real property or to improve real property owned, used, or leased by the city. (See NMSA 1978 § 13-4-2.)

PURCHASE ORDER is a document issued by the Central Purchasing Office which directs a contractor to deliver certain items of tangible personal property, services, professional services, or to arrange for construction pursuant to an existing contract and, thereby, the purchase order creates an encumbrance of funds necessary for payment.

PURCHASE ORDER AFTER THE FACT is an unauthorized financial commitment by a city department without having a properly authorized and issued purchase order from the Central Purchasing Office in place prior to obligating the city.

PURCHASE REQUEST/REQUISITION is a document by which a department requests the Central Purchasing Office obtain a purchase order for a specified service, professional service, construction, or any item of tangible personal property.

REGULATION is any rule, order or statement of policy, in whole or in part, and as may subsequently be amended or repealed, normally adopted by resolution or ordinance, issued by the city to affect members of the public.

REQUEST FOR INFORMATION is a nonbinding method whereby a jurisdiction publishes via newspaper, internet, or direct mail its need for input from interested parties for an upcoming solicitation.

REQUEST FOR PROPOSALS (RFP) is a document that contains a brief description of the personal property, services or construction to be procured; the location where the request for proposals can be obtained; the date and place proposals are due; and any other information used for soliciting proposals.

REQUEST FOR QUALIFICATIONS (RFQ) is a document, which is issued by a procurement entity to obtain statements of the qualifications of potential responders (development teams or consultants) to gauge potential competition in the marketplace, prior to issuing the solicitation.

RESPONSIBLE BID is a bid which conforms in all material respects to the requirements set forth in the IFB. Material respects of a bid include, but are not limited to, price, quality, quantity or delivery requirements.

RESPONSIBLE BIDDER is a person or entity that submits a responsive bid and furnishes, when required, information and data to prove that the bidder’s financial resources, production or service facilities, personnel, service reputation and experience are adequate to make satisfactory delivery of the services, construction, or items of tangible personal property described in the invitation for bids.

RESPONSIBLE OFFEROR is a person or entity that meets the same qualifications as required for a responsible bidder, except that the responsible offeror has submitted a responsive offer to an RFP.

RESPONSIVE BID is a bid which conforms in all material respects to the requirements set forth in the IFB. Material respects of a bid include, but are not limited to, price, quality, quantity or delivery requirements.

RESPONSIVE OFFER is an offer that conforms in all material respects to the requirements set forth in the RFP. Material respects of a request for a proposal may include, but are not limited to, price, quality, quantity or delivery requirements.

SCOPE OF WORK is a detailed description of the work which the Central Purchasing Office requires a contractor to perform.

SERVICES means the furnishing of labor, time or effort by a contractor not involving the delivery of a specific end product other than reports and other materials that are merely incidental to the required performance. Services include the furnishing of insurance but does not include construction, the services of city employees, or professional services.

SMALL PURCHASE is procurement of services, construction or items of tangible personal property having a value less than the small purchase threshold identified in Section 36.33.

SOLE SOURCE is a procurement where a particular supplier or person is identified as the only reasonably qualified source available.

SPONSORSHIP CONTRACT is a contract allowing a person or entity to publicize participation in city events in exchange for donations of goods and services.

STATUTORY PREFERENCE is the preference currently provided pursuant to NMSA 1978 § 13-1-21, 13-1-22 or 13-4-2, as amended from time to time.

(’87 Code, § 7-2-2) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19; Am. Ord. 19-18; Am. Ord. 22-05; Am. Ord. 22-22)

36.22 RESERVED.

(Ord. 14-19)

36.23 CENTRAL PURCHASING OFFICE.

(A) The Central Purchasing Office shall be responsible for all city procurement not expressly retained by the Procurement Officer and shall perform all duties required by the procurement code and other relevant statutes. The Central Purchasing Office shall coordinate with the State Purchasing Agent, the central purchasing offices of other local public bodies, and the purchasing office of external procurement units to maximize benefits of joint and cooperative efforts.

(B) The Procurement Officer oversees and supervises the Central Purchasing Office’s actions and operations. The Central Purchasing Office shall:

(1) Prepare and recommend procurement regulations for the city;

(2) Establish and maintain guidelines for the development and use of procurement specifications and for the inspection, testing and acceptance of services, professional services, construction and items of tangible personal property;

(3) Provide assistance in the preparation of statistical data concerning the acquisition and usage of all services, professional services, construction and items of tangible personal property; obtain reports from city departments concerning usage, needs and stocks for all procurement;

(4) Prepare and recommend forms to requisition and report all procurement; and

(5) Collect information on procurement matters and on quality control of commonly used services, professional services, construction and items of tangible personal property.

(’87 Code, § 7-2-4) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19; Am. Ord. 19-18)

36.24 EXEMPTIONS FROM THE PROCUREMENT CODE.

The following procurements are exempt from the competitive procurement procedures of this procurement code:

(A) Printing and duplicating contracts involving materials which are required to be filed in connection with proceedings before administrative agencies, municipal, state or federal courts.

(B) Purchases of publicly provided or publicly regulated gas, electricity, water, cable TV, internet service, telephone, cellular telephone, sewer, and refuse collection services.

(C) Purchases of books, periodicals, software (including software as service agreements and software maintenance agreements), films, music, training materials, subscriptions, online information services, or advertising from the publishers and distributors or agents thereof.

(D) Travel by city employees, including meals and lodging.

(E) Purchase of animals to be used for exhibit and/or public safety related services.

(F) Purchases consisting of magazine subscriptions, web-based or electronic subscriptions, conference registration fees, memberships and other similar purchases where prepayments are required.

(G) The issuance, sale and delivery of public securities pursuant to the applicable authorizing statute.

(H) Purchases of surety bonds or investments subject to the city’s investment policy.

(I) Services associated with debt issuance, servicing and compliance not including municipal advisory services and bond counsel services.

(J) Contracts with professional entertainers.

(K) Contracts and expenditures for litigation expenses in connection with proceedings before administrative agencies or state or federal courts, including attorneys, experts, mediators, court reporters, process servers, and witness fees.

(L) Legal services for advice, consultation, and representation of the city.

(M) Sponsorship contracts allowing a person or entity to publicize participation in city events in exchange for donations of goods and services.

(N) Works of art for display in public buildings or places.

(O) Purchases of advertising in all media, including radio, television, print and electronic.

(P) Relocation of utility lines within an easement owned by a public utility which requires its own contractors to move the utility lines.

(Q) Services provided by qualified individuals pursuant to the State Use Act (NMSA 1978 §§ 13-1C-1 through 13-1C-7 as amended).

(R) Purchase of parts and labor or maintenance agreements to repair equipment or machinery by a franchised dealer or by a factory authorized repair shop.

(S) Fire Department or Police Department purchases of chemicals, drugs, and other controlled substances, the distribution and use of which is controlled by law or requires licensing, provided that such purchases are properly receipted and accounted for with appropriate supporting documentation, which shall be subject to internal audit.

(T) Fire Department or Police Department purchases, rentals, leases (personal and real property), and professional/technical services contracts necessary for the investigation of criminal activities, if competitive procurement would compromise a criminal investigation, as determined by the Chief of the department in writing; provided, that all such expenditures are properly receipted and accounted for with appropriate supporting documentation, which shall be subject to internal audit. Exemption of a procurement under this paragraph will be limited to the term of the specific investigation.

(U) Contracts for service relating to the design, engineering, financing, construction and acquisition of public improvements undertaken in improvement districts pursuant to NMSA 1978 § 3-33-14.1(L) (as amended).

(V) Leases, exchanges, or purchases of real property, including closing costs.

(W) Purchases related to the acquisition of water rights.

(X) Postage or shipping services.

(Y) Services provided solely by other government agencies or institutions of higher learning.

(Z) Procurement of items of tangible personal property or services from a federal agency, state agency, or a local public body.

(AA) Payment for the installation or construction of city infrastructure by a developer engaged in construction, pursuant to development agreement, at the site of such infrastructure, pursuant to a written agreement or amendment to the development agreement.

(BB) Contracts for professional services relying on previous professional services rendered, when the vendor providing the previous professional services can provide the additional professional services in a manner clearly less expensive and expeditious in the opinion of the Procurement Officer.

(’87 Code, § 7-2-5) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19; Am. Ord. 16-05; Am. Ord. 19-18)

36.25 COMPETITIVE SEALED BIDS.

(A) Exceptions. All procurement shall be achieved by competitive sealed bids except:

(1) When competitive sealed proposals are authorized;

(2) For small purchases;

(3) For sole source procurement;

(4) For emergency procurement;

(5) When procured under existing contracts.

(B) Invitations for bids (IFB’s).

(1) The Central Purchasing Office shall prepare or review, and approve all IFB’s, which shall contain:

(a) The specifications for the services, construction or items of tangible personal property to be procured;

(b) All contract terms and conditions applicable to the procurement;

(d) The location where bids are to be received;

(e) Date, time and place of the bid opening;

(f) A notice that states:

The Rio Rancho Procurement Code imposes civil and criminal penalties for its violation in addition to the felony penalties for illegal bribes, gratuities and kickbacks imposed by the New Mexico Criminal Statutes;

(g) A statement that the Central Purchasing Office shall be the sole point of contact with the city during the procurement process, and that communications initiated by offerors with other city personnel or elected officials, without the coordination of the Central Purchasing Office, is grounds for offeror disqualification for that specific procurement.

(2) No notice of an invitation for bids shall be published prior to the completion or approval of the invitation for bids by the Central Purchasing Office.

(3) Any business requesting an invitation for bids shall, at the time the request is made, provide to the Central Purchasing Office a current mailing address, telephone and fax numbers, and email address, if available.

(4) Amendments to the invitation for bid.

(a) The Central Purchasing Office may amend the invitation for bid to:

1. Make material changes such as changes in quantity, purchase descriptions, specifications, delivery schedules and opening dates;

2. Correct defects or ambiguities;

3. Furnish all bidders information given to one bidder, if such information will assist the other bidders in submitting bids, or if the lack of such information would prejudice the other bidders.

(b) Any amendment shall be mailed first class or faxed or electronically transmitted to all bidders that have supplied their current contact information, pursuant to subsection (B)(3) of this section, not less than seven calendar days prior to the scheduled bid opening.

(1) Bidding time is the period of time between publication of the invitation for bids and the date of bid opening.

(2) The Central Purchasing Office shall allow a reasonable bidding time for preparation of bids, except when a shorter time is determined to be in the best interest of the city. In no event shall the bidding time be less than 10 calendar days.

(D) Public notice.

(1) Publications of invitations for bid, or a notice thereof, shall be made in a newspaper of general circulation in the city. The Central Purchasing Office may authorize additional publication as is commercially reasonable.

(2) Additional notices.

(a) In addition to publication, the city shall send copies of the notice or invitation for bids when an expenditure exceeds the amount defined as a small purchase to any business which has provided to the Central Purchasing Office a written statement of interest in submitting bids for particular categories of items of tangible personal property, construction, services and professional services.

(b) A copy of an IFB shall be made available for public inspection at the Central Purchasing Office or on the city website.

(3) The city may establish registration fees to cover the cost of providing copies of notices or IFB’s. Such fees must be related to the actual cost of furnishing copies of the notice of IFB’s and shall be used exclusively for such purpose.

(E) Pre-bid conference.

(1) Pre-bid conferences may be conducted to explain the procurement requirements. They shall be announced to all prospective bidders known to have received an IFB.

(2) Nothing stated at the pre-bid conference shall change the IFB’s unless a change is made by written amendment.

(F) Receipt and acceptance of bids.

(1) Bids must be accepted for consideration, without alteration or correction, except as authorized in the procurement code.

(2) Bids are to be evaluated on the requirements set forth in the invitation for bids. Any criteria that affects the bid price, such as discounts, transportation costs, total or life cycle costs, must be objectively measurable. No criteria may be used in bid evaluation that are not set forth in the invitation for bids.

(3) Each bid received by the Central Purchasing Office shall be stamped as received and labeled with date and time of filing. All bids shall be retained by the Central Purchasing Office in a secure place until the date and time for opening.

(G) Negotiations. If the lowest responsible bid has otherwise qualified, and if there is no change in the original terms and conditions, the city may negotiate with the lowest bidder for a lower total bid in order to avoid rejection of all bids for the reason that the lowest bid exceeded budgeted project funds. Such negotiation shall not be allowed if the lowest bid is more than 10% over budgeted project funds.

(H) Correction or withdrawal of bids.

(1) A bid mistake discovered before bid opening may be modified or withdrawn by a bidder prior to the opening by delivering a written notice to the Central Purchasing Office.

(2) After bid opening, no modifications in price or other provisions of bids are permitted. However, a low bidder, alleging a material mistake of fact which makes his bid non-responsive, may be permitted to withdraw his bid if:

(a) The mistake is clearly evident on the face of the bid; or

(b) The bidder submits evidence which clearly and convincingly demonstrates that a mistake was made.

(3) The decisions to permit or deny withdrawal of a bid on the basis of mistake is a decision to be made by the Procurement Officer and shall be supported by a written determination setting forth the grounds of the decision.

(4) After the bid opening and prior to the award, the following provisions apply:

(a) Technical irregularities are matters of form, rather than substance, which are evident from the bid document, or insignificant mistakes that can be waived or corrected without prejudice to other bidders; i.e. when there is no effect on the price, quantity, quality, delivery, or material contract conditions. The Procurement Officer may waive such irregularities, or allow the low bidder to correct them, if either action is in the best interest of the city. Examples include, but are not limited to, the failure of a low bidder to:

1. Return the number of signed bids required by the invitation for bids; or

2. Sign the bid, but only if the unsigned bid is accompanied by other material indicating the low bidder’s intent to be bound.

(b) Mistakes where the intent of a bid is clearly evident on the face of the bid document shall be corrected and may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, transposition errors, and arithmetical errors.

(c) All corrections or withdrawals allowed by the Procurement Officer shall be supported by a written determination placed in the specific procurement file.

(d) A bid is to be opened publicly in the presence of one or more witnesses at the time and place designated in the IFB. The amount of each bid, and each bid item (if appropriate), and other relevant information, together with the name of each bidder, shall be recorded in the procurement file and each bid shall be open to public inspection.

(I) Bid award.

(1) Following award, a record of the basis for the award and the names of all people present at the bid opening shall be made part of the procurement file.

(2) Written notice of the award shall be sent to all bidders of record.

(3) A contract shall be awarded on the bid amount exclusive of any applicable state gross receipts or local option tax. Contracts shall require the city to pay these applicable taxes, including any increase that becomes effective after the contract is executed. The applicable gross receipts tax or local option tax shall be shown as a separate amount on each billing or request for payment made under the contract.

(J) Multi-step sealed bidding.

(1) General. When the Central Purchasing Office makes a determination that it is impractical to prepare initial specifications to support an award based on price, an invitation for bids may be issued requesting the submission of unpriced offers to be followed by an IFB.

(2) Definition. Multi-step sealed bidding is a two-phase process consisting of a technical first phase composed of one or more steps in which bidders submit unpriced technical offers to be evaluated by the Central Purchasing Office, and a second phase in which those bidders whose technical offers are determined to be acceptable during the first phase have their price bids considered. It is designed to obtain the benefits of competitive sealed bidding by award of a contract to the lowest responsible bidder, and at the same time obtain the benefits of the competitive sealed proposals procedure through the solicitation of technical offers and the conduct of discussions to evaluate and determine their acceptability.

(3) Pre-bid conferences in multi-step sealed bidding. Prior to the submission of unpriced technical offers, a pre-bid conference may be conducted. In addition, a conference of all potential bidders may be held at any time during the evaluation of the unpriced technical offers.

(4) Receipt and handling of unpriced technical offers. Unpriced technical offers shall not be opened publicly, but shall be opened in front of two or more witnesses. Such offers shall not be disclosed to unauthorized persons or be made available to competing offerors.

(5) Procurement Officer decision. With the approval of the Procurement Officer, the Central Purchasing Office may initiate phase two of the procedure if there are sufficient acceptable unpriced technical offers to assure effective price competition in the second phase, without technical discussions. If such is not the case, the Central Purchasing Office shall issue an amendment to the invitation for bids or engage in technical discussions as set forth in subsection (J)(2) of this section.

(6) Mistakes during multi-step bidding. Mistakes may be corrected or bids may be withdrawn during phase one at any time. During phase two, mistakes may be corrected or withdrawn in accordance with the provisions of this procurement code for correcting mistakes in regular sealed bids.

(7) Procedure for phase two. Phase two shall be conducted as any other competitive sealed bid procurement except:

(a) No public notice need be given of this invitation to submit priced bids because such notice was previously given.

(b) Unpriced technical offers of bidders who are not awarded the contract shall not be open to public inspection unless the Procurement Officer determines in writing that public inspection of such offers is essential to assure confidence in the integrity of the procurement process.

(K) Identical low bids. When two or more identical low bids are received, the Central Purchasing Office may:

(1) Award pursuant to the multiple source award provisions of the procurement code; or

(2) Award by lottery to one of the identical low bidders.

(L) Bid security.

(1) When applicable, bidders for construction contracts must provide bid security when the price is estimated to exceed $25,000. The bid security shall be equal to at least five percent of the amount of the bid and shall be (1) a bond provided by a surety company authorized to do business in this state; or (2) the equivalent in cash; or (3) otherwise supplied in a form satisfactory to the city.

(2) Bid and performance bonds and other security.

(a) Bid security, performance bonds or other security may be required for contracts for items of tangible personal property or services as deemed necessary to protect the city.

(b) Any bonding requirements shall not be used as a substitute for a determination of the responsibility of a bidder or offeror.

(c) The Procurement Officer may reduce the bid bond, performance bond or payment bond to encourage procurement from small businesses.

(3) Rejection of bids.

(a) When the IFB requires bid security, failure to provide such security is grounds for rejection.

(b) If a bidder is permitted to withdraw its bid before award, no action shall be taken against the bidder or its surety.

(’87 Code, § 7-2-6) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19; Am. Ord. 22-05)

36.26 COMPETITIVE SEALED PROPOSALS.

(A) Competitive sealed proposals may be used when:

(1) Procuring professional services; or

(2) For a design and build project; or

(3) When the Central Purchasing Office makes a determination that the use of competitive sealed bidding is either not practicable or advantageous to the city; or

(4) Procuring contracts for construction, faci7lity maintenance, service and repairs.

(B) Request for proposals. Competitive sealed proposals are solicited through a request for proposals (RFP) and include the same material that an IFB includes. The RFP should include:

(1) The specifications for the services or items of tangible property to be procured;

(2) All contract terms and conditions applicable to the procurement;

(3) Instructions and information to offerors, including the date, time and place where proposals are to be received and reviewed;

(4) All evaluation factors, including the relative weight to be given to each factor, including price, when applicable;

(5) A statement that discussions may be conducted with offerors who submit proposals, but that proposals may be accepted without such discussions;

(6) A statement of when and how price should be submitted and a cost proposal form, when required;

(7) A notice that states:

The Rio Rancho Procurement Code imposes civil and criminal penalties for its violation, in addition to the felony penalties for illegal bribes, gratuities and kickbacks imposed by the New Mexico Criminal Statutes;

(8) A statement that the Central Purchasing Office shall be the sole point of contact with the city during the procurement process, and that communications initiated by offerors with other city personnel or elected officials, without the coordination of the Central Purchasing Office, is grounds for offeror disqualification for that specific procurement;

(9) Amendments to the request for proposal.

(a) The Central Purchasing Office may amend the request for proposal to:

1. Make material changes such as changes in quantity, purchase descriptions, specifications, delivery schedules and opening dates;

2. Correct defects or ambiguities;

3. Furnish all offerors information given to one offeror, if such information will assist the other offeror in submitting a proposal, or if the lack of such information would prejudice the other offerors.

(b) Any amendment shall be mailed first class or faxed or electronically transmitted to all offerors that have supplied their current contact information, not less than seven calendar days prior to the scheduled proposal submission deadline.

(C) Public notice. Publication of an RFP or a notice thereof shall be made in a newspaper of general circulation in the city.

(1) The Central Purchasing Office shall send copies of an RFP to those businesses which have signified in writing an interest in submitting proposals and which have paid any required fees.

(2) A copy of the RFP shall be made available for public inspection and shall be posted at the Central Purchasing Office or on the city website.

(D) Pre-proposal conference.

(1) Pre-proposal conferences may be conducted to explain the procurement requirements. Notice of a conference shall be given to all prospective offerors that have received an RFP.

(2) Nothing stated at the pre-proposal conference shall change the RFP, unless a change is made by written amendment.

(E) Evaluation of proposals.

(1) An evaluation committee established by the Central Purchasing Office shall evaluate a proposal’s merits as required by the evaluation factors in the RFP. Numerical rating systems may be used, but are not required.

(2) The Central Purchasing Office may require a cost proposal to be submitted under separate cover and scored independently, if necessary to prevent cost information from influencing the evaluation of other factors.

(3) Proposals for professional services shall be evaluated on the basis of demonstrated competence and qualifications for the type of professional service required, and shall be based on the evaluation factors set forth in the request for proposals, including price where applicable.

(F) Negotiations.

(1) Offerors submitting proposals may be afforded an opportunity for discussion and revision of proposals.

(2) Revision may be permitted after the submission of a proposal, but prior to award, and for the purpose of obtaining the best and final offers in response to an RFP. Negotiations may be conducted with the highest ranked responsible offerors.

(3) The contents of any proposal shall be available only to the evaluation committee and shall not be disclosed so as to be available to competing offerors or the public during the negotiation process or prior to award.

(G) Proposal award.

(1) The award shall be made to the responsible offeror or offerors whose proposal is most advantageous to the city, taking into consideration the evaluation factors set forth in the RFP.

(2) Written notice of the award shall be sent to all offerors of record.

(3) A contract shall be awarded on the proposal cost, exclusive of any applicable state gross receipts or local option tax. Contracts shall require the city to pay these applicable taxes, including any increase that becomes effective after the contract is executed. The applicable gross receipts tax or local option tax shall be shown as a separate amount on each billing or request for payment made under the contract.

(’87 Code, § 7-2-7) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19; Am. Ord. 22-05)

36.27 SPECIFICATIONS.

(A) Requirement.

(1) All specifications shall be drafted to ensure maximum practicable competition.

(2) Brand name specification may be used when the Central Purchasing Office determines that only the identified brand name item will satisfy the needs of the city.

(3) The Central Purchasing Office shall attempt to identify as many sources as possible from which the designated brand name items can be obtained and shall achieve whatever price competition is practicable. A sole source procurement may be made under this section.

(4) The city shall not accept any bid from a person who directly or indirectly participated in the preparation of specifications on which the bidding was held. This prohibition does not extend to vendors who suggest and have approved changes to bid specifications in a city pre-bid conference.

(B) Brand name or equal specifications.

(1) Normally, brand names or equal specifications shall include a description of the particular design, function or performance characteristics required. However, if the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, such a detailed description is not necessary.

(2) Where brand name or equal specifications is used in a solicitation, the solicitation shall contain explanatory language that the use of the brand name is for the purpose of describing a standard of quality, performance and characteristics desired and not intended to limit or restrict competition.

(1) The purchase request must contain a statement of need, the general characteristics of the item of tangible personal property, construction, service or professional service, and a statement of the quantity and quality desired.

(2) The Central Purchasing Office may consolidate similar types of procurement.

(’87 Code, § 7-2-8) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19)

36.28 MISCELLANEOUS BID AND PROPOSAL MATTERS.

(A) Rejection or cancellation of bid or request for proposals.

(1) An invitation for bids, a request for proposals, or any other solicitation may be cancelled or any or all bids or proposals may be rejected, in whole or in part, when it is in the best interest of the city. A determination containing the reasons therefor shall be made part of the procurement file. Any proposal received in response to a terminated solicitation is not public information and shall not be made available to competing offerors.

(2) If no bids are received, or if all bids received are rejected, and if the invitation for bid was for any tangible personal property, construction or services, then new invitations for bids may be requested. If upon rebid of the procurement, the bids received are unacceptable, or if no bids are secured, the Central Purchasing Office may purchase at the best obtainable price.

(B) Irregularities in bid or proposals. The Central Purchasing Office may waive technical irregularities in the form of the bid or proposal of the low bidder or offeror which do not alter the price, delivery time, quality or quantity of the services, professional services, construction or items of tangible personal property bid or offered.

(1) If a bidder or offeror who otherwise would have been awarded a contract is found not to be a responsible bidder or offeror, a determination that the bidder or offeror is not a responsible bidder or offeror, setting forth the basis of the finding, shall be prepared by the Central Purchasing Office. The unreasonable failure of bidder or offeror to promptly supply information in connection with inquiries with respect to responsibility is grounds for a determination of nonresponsibility.

(2) Factors to be considered in a determination of responsibility include whether a bidder or offeror has:

(a) Submitted a responsive bid or offer;

(b) Adequate financial resources, production or service facilities, personnel, service reputation and experience to make satisfactory delivery of the solicited procurement;

(d) A satisfactory record of integrity;

(e) Legally qualified to contract with the city;

(f) Supplied all necessary information and data in connection with the inquiry concerning responsibility;

(g) Been suspended or debarred under the provisions of this procurement code.

(3) The bidder or offeror may demonstrate the availability of adequate financial resources, production or service facilities, personnel and experience by submitting, upon request:

(a) Evidence that such contractor possesses such necessary items;

(b) Acceptable plans to subcontract for such necessary items; or

(D) Pre-qualification of bidders and offerors.

(1) Businesses may be pre-qualified by the Central Purchasing Office for particular types of services, professional services, construction or items of tangible personal property. The fact that a business has been pre-qualified does not represent a finding of responsibility.

(2) Mailing lists of potential bidders or offerors shall include, but not be limited to, such pre-qualified businesses.

(E) In addition to the definitions and criteria set forth in this section, the Central Purchasing Office may impose additional requirements regarding the nature, size and/or location of offerors or bidders, or their bids or proposals, in any request for proposals or invitation for bids. As a result, companies responding to such solicitations should review the solicitation documents thoroughly.

(’87 Code, § 7-2-9) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19; Am. Ord. 22-22)

36.29 CONTRACT MATTERS.

(A) Uniform contract clauses. All city contracts for supplies, services, professional services and construction shall include provisions necessary to define the responsibilities and rights of the parties to the contract. The Procurement Officer may require contract provisions appropriate for any such supply, service, professional service or construction contracts, addressing among others the following subjects:

(1) Unilateral right of the city to order, in writing, changes in the work within the scope of the contract or temporary stoppage of the work, or delay of performance;

(2) Variations occurring between estimated quantities of work in a contract and actual quantities, when a contract consists of pre-determined unit prices;

(3) Liquidated damages;

(4) Permissible excuses for delay or nonperformance;

(5) Termination for default;

(6) Termination, in whole or in part, for convenience of the city;

(7) Assignment clauses;

(8) Identification of subcontractors by bidders in bids;

(9) Uniform subcontract clauses;

(10) Compensation;

(11) Payment terms;

(12) Term;

(13) Nonappropriation clause;

(14) Other such similar clauses as may be appropriate.

(B) Price adjustments. Adjustments in price shall be computed in one or more of the following ways or as otherwise specified in the contract:

(1) By agreement on a fixed price adjustment before commencement of performance;

(2) By unit price as specified in the contract or subsequently agreed upon;

(3) By the cost attributable to the events or conditions as specified in the contract or subsequently agreed upon;

(4) In any other manner agreed upon by the parties.

(C) Notification to the governing body. A summary of all contracts and agreements approved by the City Manager, or his designated representative, shall be provided to the governing body on a quarterly basis in the form of a non-action agenda item review.

(’87 Code, § 7-2-10) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 96-031; Am. Ord. 14-19)

36.30 TYPES OF CONTRACTS.

(A) In general.

(1) Except as provided in the procurement code, any type of contract, including but not limited to definite quantity and indefinite quantity contracts and price agreements, is allowed which will promote the best interest of the city. Standard contracts include:

(a) Unit price contract: a price for each individual service or item;

(b) Lump sum contract: one price for the entire procurement;

(c) Time and materials contract: services are compensated by a predetermined schedule for specific types of labor, with reimbursement of costs incurred for materials and fees, and allowance for an agreed-upon percentage;

(d) List price plus discount: contract based on prices listed in current catalog, price list, schedule, or other format that:

1. Is regularly maintained by the manufacturer or vendor of an item;

2. Is either published or otherwise available for inspection by a customer.

(2) A cost-plus-a-percentage-of-the-cost contract is prohibited, except for the purchase of insurance.

(3) A cost reimbursement contract may be used when such contract is likely to be less costly, or it is impracticable to otherwise obtain the services, professional services, construction or items of tangible personal property required.

(B) Multi-year contracts.

(1) Prerequisites. Prior to the use of a multi-year contract, the Central Purchasing Office shall determine that:

(a) The estimated requirements cover the period of the contract and are reasonably firm and continuing; and

(b) The contract will serve the best interests of the city.

(2) A multi-year contract may be entered into for any period of time not to exceed:

(a) Four years, if the contract amount is under $25,000;

(b) Eight years, including all extensions, if the contract amount is over $25,000, except that for a contract entered into pursuant to the Public Facility Energy Efficiency and Water Conservation Act (Chapter 6, Article 23, NMSA 1978), the term shall not exceed 25 years, including all extensions and renewals. Payment and performance obligations for succeeding fiscal periods shall be subject to the availability and appropriation of funds therefor;

(c) A contract for professional services may not exceed a term of four years, including all extensions and renewals, except that a multi-year contract for the services of trustees, escrow agents, registrar, paying agents, letter of credit issuers and other forms of credit enhancement; and other similar services, excluding bond attorneys, underwriters and financial advisors with regard to the issuance, sale and delivery of public securities, may be for the life of the securities or as long as the securities remain outstanding;

(d) Notwithstanding the provisions of subsections (B)(2)(a), (b) and (c) of this section, the Procurement Officer may extend the term of any contract when, in his judgment, it is in the city’s interest to do so. However, except for trustee, escrow, registrar and paying agent services related to the city’s debt securities, no contract may be approved for more than 10 years.

(3) Availability of funds. Payment and contractor performance obligations for succeeding fiscal periods are subject to the availability and appropriation of funds.

(4) Cancellation. If funds are not appropriated or otherwise made available to support continuation of the multi-year contract, the contract shall be cancelled.

(’87 Code, § 7-2-11) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 05-002; Am. Ord. 14-19; Am. Ord. 16-05; Am. Ord. 17-15)

36.31 MULTIPLE SOURCE OR TASK AWARDS.

(A) A multiple source award may be made when awards to two or more bidders or offerors are necessary for adequate delivery of goods or services, or in the case of identical lowest cost bids.

(B) Multiple source awards shall not be made when a single award will meet the need of the city without sacrifice of economy or service. Awards shall be limited to the least number of suppliers necessary to meet the requirements of the city.

(C) The city may procure multiple architectural or engineering design contracts for multiple projects under a single qualifications-based request for proposals, provided the total amount of all projects awarded for a single contractor does not exceed $2,000,000 over four years and that a single project does not exceed $500,000.

(D) The city may procure multiple indefinite quantity construction contracts pursuant to a price agreement for multiple projects under a single request for proposals or invitation for bids, provided the total amount of all projects awarded for a single contractor does not exceed $8,000,000 over four years and that a single project does not exceed $2,000,000.

(’87 Code, § 7-2-13) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19; Am. Ord. 22-05)

36.32 MISCELLANEOUS PROCUREMENT MATTERS.

(A) Receipt of goods.

(1) The using department is responsible for inspecting and accepting or rejecting deliveries.

(2) The using department shall determine whether the quantity and quality of the goods meet the specifications of the purchase order or contract.

(3) In the event that goods are unacceptable, the using department shall immediately notify the Central Purchasing Office.

(4) The user department shall notify the vendor of rejection and shall demand the vendor to promptly make satisfactory replacement or supplementary delivery.

(5) In the event the vendor fails to cure the nonconforming delivery, the Central Purchasing Office has no obligation to pay for the nonconforming goods.

(6) If delivery is acceptable, the using department shall notify the Central Purchasing Office.

(B) Payment of purchases.

(1) Payment shall be made when the Central Purchasing Office or using department acknowledges that the services, professional services or items of personal property have been received and meet specifications. Payment is “Net 30” upon receipt of acceptable invoice or receipt of goods, whichever is later.

Construction project payments shall be paid within 21 days after approved by the user department pursuant to NMSA § 57-28-5 (as amended).

(2) Prepayment in an amount not to exceed $25,000 shall be allowed when approved by the Procurement Officer as being necessary to obtain a price discount or expedited delivery. The Procurement Officer shall not delegate his authority to approve prepayment to any other city employee or individual.

(C) Right to inspect the facility. A contract or solicitation may include a provision allowing the city, at reasonable times, to inspect the facility or place of business of a contractor or any subcontractor, which is related to the performance of any contract awarded or to be awarded.

(D) Audits.

(1) The city may, at reasonable times and places, audit the books and records of any person, organization, or business who has submitted cost or pricing data to the extent that such books or records relate to the cost or pricing data.

(2) Persons supplying cost or pricing data must maintain books and records that relate to such data for three years from the date of final payment under the contract, unless a shorter period is authorized in writing by the Procurement Officer.

(3) The provisions in subsections (D)(1) and (2) of this section relate to an audit of the books and records of any contractor or subcontractor under a negotiated contract or subcontract, other than a firm, fixed price contract.

(E) Advice and consent of the Governing Body. Prior to execution of any contract or task order for the purchase of goods or services that exceeds $500,000, regardless of the method of procurement used, such contract or task order shall be presented to the Governing Body for advice and consent.

(’87 Code, § 7-2-14) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19; Am. Ord. 19-18; Am. Ord. 22-05)

36.33 SMALL PURCHASES.

(A) The Central Purchasing Office may procure services, construction, or items of tangible personal property having a value not exceeding $60,000 in accordance with the following:

(1) All purchases under $20,000, excluding applicable gross receipts taxes, shall be made at the best obtainable price.

(2) Purchases between $20,000 and $60,000, excluding applicable gross receipts taxes, shall be made, when possible, with three written informal bids, which shall be attached to the purchase requisition.

(3) Procurement requirements shall not be artificially divided so as to constitute a small purchase under this section.

(4) In evaluating quotes or prices under this section, a five percent allowance shall be credited to bidders’ prices for businesses with offices located within city limits.

(B) Notwithstanding the requirements of subsection (A) of this section, professional services having a value not exceeding $60,000 may be procured without competitive sealed bids or proposals.

(C) City-issued purchasing cards (“P-Cards”) may only be used for purchase of tangible goods, registrations, memberships, subscriptions, business related meals, approved travel expenses and repairs to city-owned vehicles and equipment if such vehicles or equipment are out of town at the time such repair is needed. Use of a city P-card for any purpose other than legitimate city business may subject the holder to discipline in accordance with the city’s P-card policy. These purchases shall comply with all applicable federal, state and city procurement requirements.

(’87 Code, § 7-2-15) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 05-28; Am. Ord. 08-40; Am. Ord. 14-19; Am. Ord. 19-18)

36.34 SOLE SOURCE OR EMERGENCY PROCUREMENT.

(A) Sole source procurement.

(1) A contract may be awarded without competitive sealed bids or competitive sealed proposals, regardless of the estimated cost, when the Procurement Officer or designee makes a determination, after conducting a good faith review of available sources and consulting the using department, that there is only one reasonably qualified source for the required procurement.

(2) A request by a using department for a sole source procurement shall be submitted to the Procurement Officer or designee accompanied by a written justification which must be approved by the using department’s director.

(3) If a sole source situation exists, the Central Purchasing Office shall conduct negotiations to obtain the most advantageous terms for the city.

(4) Sole source procurements shall be posted on the city’s website for a period of 30 days from date of approval.

(B) Emergency procurement.

(1) An emergency is a situation creating a threat to public health, safety or welfare such as may arise by reason of flood, epidemic, riot, equipment failure, or other similar events. The emergency condition must create an immediate and serious need that cannot be met through normal procurement methods and which seriously threatens:

(a) The functioning of government;

(b) The preservation or protection of property; or

(2) The Procurement Officer may authorize emergency procurement; provided, that emergency procurement shall be made with such competition as is practicable under the circumstances.

(3) A written determination of the basis of the emergency procurement and for the selection of a particular contractor shall be included in the procurement file.

(4) Emergency procurement shall not include the purchase or lease-purchase of heavy road equipment.

(5) Emergency procurements will be posted on the city’s website within one week and shall remain on the website for 30 days.

(1) The Central Purchasing Office shall maintain records of all sole source and emergency procurement for a minimum of three years.

(2) The record of each procurement shall be a public record and shall contain:

(a) The contractor’s name and address;

(b) The amount and term of the contract;

(d) The justification for the procurement method and the conditions necessitating the purchase.

(D) Construction.

(1) If a sole source or emergency construction contract over the minimum threshold set forth by state statute is awarded, the contractor must obtain a state wage rate determination pursuant to NMSA § 13-4-11 (as amended).

(2) If the construction contract is over $25,000, the contractor must also obtain performance and labor material payment bonds pursuant to NMSA § 13-4-18 (as amended). At the city’s discretion, these bonds may also be required if the construction contract is under $25,000.

(’87 Code, § 7-2-16) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19; Am. Ord. 19-18; Am. Ord. 22-05)

36.35 APPLICATION OF PREFERENCES.

(A) All responsive bids or responsive offers shall receive the applicable statutory preference unless otherwise stated in the invitation for bid and/or request for proposal.

(B) When statutory preference is afforded pursuant to subsection (A) of this section, a preference for local businesses or area businesses shall be administered as follows:

(1) A responsive bidder or responsive offeror who is also a local business shall receive a two percent preference in addition to (and not in lieu of) the statutory preference; and

(2) A responsive bidder or responsive offeror who is also an area business shall receive a one percent preference in addition to (and not in lieu of) the statutory preference.

(’87 Code, § 7-2-16) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 10-12; Am. Ord. 12-03; Am. Ord. 12-16; Am. Ord. 14-19; Am. Ord. 22-05; Am. Ord. 22-22)

36.36 OTHER TYPES OF PROCUREMENT.

(A) Cooperative procurement.

(1) The city may participate in, sponsor or administer a cooperative agreement to procure any services, professional services, construction or items of tangible personal property with a state agency, another local public body, or an external procurement unit, in accordance with a joint powers agreement.

(2) The Central Purchasing Office may cooperate with the state purchasing agent in obtaining contracts or price agreements and such contracts or price agreements shall apply to purchase orders issued subsequently under the agreement.

(B) Small business assistance purchases.

(1) The city shall encourage small business participation in procurement processes.

(2) The Central Purchasing Office shall take reasonable action to ensure small businesses are solicited on each procurement for which they appear to be qualified.

(3) The Central Purchasing Office may make special provisions for progress payments to encourage procurement from small businesses.

(4) The Central Purchasing Office may reduce bid bond, performance bond or payment bond requirements, except for construction contract performance or payment bonds, to encourage procurement from small businesses. (See also Section 36.25(L), Bid security.)

(C) Procurement pursuant to Corrections Industries Act. The city may purchase items of tangible personal property and services offered pursuant to the provisions of the Corrections Industries Act (NMSA 1978 §§ 33-8-1 to 33-8-15 (as amended)).

(D) Used items.

(1) Notwithstanding the provisions of Section 36.33, the Central Purchasing Office, when procuring used items of tangible personal property, the estimated cost of which exceeds $20,000, shall request informal bids as though the items were new, adding specifications that permit used items under conditions which may include but are not limited to:

(a) Requiring a written warranty for at least 90 days after date of delivery; and

(b) An independent “certificate of working order” by a qualified mechanic or appraiser.

(2) All purchases of used items under $20,000 shall be made at the best obtainable price.

(3) The price paid for used items, including all fees and applicable surcharges, shall not exceed the current value established by:

(a) The current book value established by any well-recognized market-value guide or publication, where such information is available;

(b) Where such information is not available, price shall not exceed the value as established (i) by appraisal, or (ii) by the price of comparable goods.

(4) The provisions of this section shall apply to the purchase of used items by auction, through private sale, or through public sale.

(5) Trade-in or exchange of used items.

(a) The Central Purchasing Office, when trading in or exchanging used items of tangible personal property, the estimated value of which exceeds $10,000 as part-payment on the procurement of new items, shall:

1. Have an independent appraisal made of the items to be traded in or exchanged. The appraisal shall be in writing, be made part of the procurement file, and be a public record. The invitation for bids or request for proposals shall contain notice to prospective bidders or offerors of the description and specifications of the items to be traded in or exchanged, their appraised value, and the location where the items to be traded in or exchanged may be inspected; or

2. Have two written quotes for purchase of the property at a specified price.

(b) Bidders or offerors shall compute their net bid or offer by deducting the appraised value or highest quote of the items to be traded in or exchanged from the gross bid or offer on the new items of tangible personal property to be procured.

1. If an amount offered in trade is less than the appraised value or the highest quote, but is found to be a fair reflection of the current market, representative of the condition of the items of tangible personal property and in the best interest of the city, the bid or offer may be accepted.

2. Documentation of the terms of acceptance shall be in writing, be made a part of the procurement file, and be a public record.

(E) Procurement under existing contracts. Where the Procurement Officer or his/her designee has determined sufficient competitive processes have resulted in a contract which would otherwise be authorized under the city’s procurement code, the Contracting Officer or his/her designee may contract for services or goods without the use of city competitive bids or competitive proposals at a price equal to or less than:

(1) The current federal or state supply contract or catalogue price, whichever is lower, and the purchase order adequately identifies the contract relied upon. A copy of the federal supply contract or catalogue shall be made part of the procurement record.

(2) The current contract price held by other intrastate governmental bodies and their agencies. A copy of the contract relied upon shall be made part of the procurement record.

(3) The current contract price obtained by a regional or national governmental purchasing cooperative using competitive solicitation processes. A copy of the contract relied upon shall be made part of the procurement record.

(’87 Code, § 7-2-17) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 11-17; Am. Ord. 14-19; Am. Ord. 19-18)

36.37 ETHICAL CONDUCT.

(A) Employee participation.

(1) No employee of the city shall participate directly or indirectly in a procurement when the employee knows that the employee or any member of the employee’s immediate family has a financial interest in the business seeking or obtaining a contract.

(2) This prohibition does not apply if the financial interest is held in a blind trust.

(B) Bribes, gratuities, and kickbacks. All contracts and solicitations therefor shall contain reference to the criminal laws prohibiting bribes, gratuities and kickbacks.

(1) It is unlawful for a person or business to be retained, or for a business to retain a person or business, to solicit or secure a contract upon an agreement or understanding that the compensation is contingent upon the award of the contract.

(2) The only exceptions to the prohibitions set forth in subsection (C)(1) of this section are the retention of bona fide employees or bona fide established commercial selling agencies for the purpose of securing business; and persons or businesses which provide professional services in anticipation of the receipt of federal or state grants or loans.

(D) Contemporaneous employment. No employee of the city who is participating directly or indirectly in the procurement process can become or be, while employed by the city, an employee of any person or business contracting with the city.

(E) Waivers. The governing body of the city may grant a waiver from unlawful employee participation or contemporaneous employment if it determines that:

(1) The contemporaneous employment financial interest has been publicly disclosed;

(2) The employee will be able to perform his procurement functions without actual or apparent bias or favoritism; and

(3) The employee participation is in the best interest of the city.

(F) Use of confidential information. No employee of the city or former employee may knowingly use confidential information for actual or anticipated personal gain or for the actual or anticipated personal gain of any other person.

(’87 Code, § 7-2-18) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19)

36.38 PROTESTS.

(A) Rights.

(1) Any bidder or offeror who is aggrieved in connection with a solicitation or award of a contract may protest to the Central Purchasing Office.

(2) The protest must be submitted in writing within 10 calendar days after knowledge of the facts or occurrences giving rise thereto.

(B) Procurement after protest. In the event of a timely protest, the Central Purchasing Office shall not proceed further with the procurement unless the Procurement Officer determines that the award of the contract is necessary to protect a substantial interest of the city.

(C) Authority to resolve. The Procurement Officer has the authority to take any action reasonably necessary to resolve a protest. This authority shall be exercised in accordance with the procurement code, but does not include the authority to award money damages or attorney’s fees.

(D) Written determination. The Procurement Officer shall make a written determination on the merits of the protest as expeditiously as possible or, in any event, within 30 days of the receipt of all information or the date of any conference or hearing held on the matter, whichever is later.

(E) Notice of determination. A copy of the determination shall be mailed immediately to the protestant, and delivered to the using department that requested the procurement.

(F) Judicial review. Any aggrieved person may seek judicial review of the final determination of a protest made pursuant to the procurement code by filing an action in district court within 30 calendar days after issuance. On appeal, the record of the proceedings before the Central Purchasing Office and the Procurement Officer shall constitute the record of the actions by the city.

(G) Relief after award.

(1) No fraud or bad faith. If, after an award, the Central Purchasing Office makes a determination that a solicitation or award of a contract is in violation of law and that the business awarded the contract has not acted fraudulently or in bad faith, then:

(a) The contract may be ratified, affirmed and revised to comply with law; provided, that a determination is made that doing so is in the best interest of the city; or

(b) The contract may be terminated and the business awarded the contract shall be compensated for the reasonable actual expenses and profit incurred under the contract prior to termination.

(2) Fraud or bad faith. If, after an award, the Central Purchasing Office makes a determination that a solicitation or award of a contract is in violation of law and that the business awarded the contract has acted fraudulently or in bad faith, the contract shall be cancelled.

(H) Relief for protestant. The Procurement Officer may award the protestant the reasonable costs incurred in connection with the solicitation, including bid preparation costs, when a protest is sustained and the protestant should have been awarded the contract, but was not. No award of money damages or attorney fees is allowed.

(’87 Code, § 7-2-19) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19)

36.39 DEBARMENT OR SUSPENSION.

(A) Authority.

(1) The Procurement Officer, after reasonable notice to the business involved, has the authority to suspend or debar a business for cause.

(2) Debarment shall not exceed a period of three years and suspension shall not exceed three months. The authority to debar or suspend shall be exercised in accordance with procedures adopted by the city. There must be notice and an opportunity for a hearing.

(B) Causes. Although not a limitation on authority, the Procurement Officer may consider as grounds for debarment or suspension, the following, if the conduct or offense occurred within three years of procurement:

(1) Conviction of a bidder, offeror or contractor of a criminal offense related to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;

(2) Conviction of a bidder, offeror or contractor under the state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records or receiving stolen property;

(3) Conviction of a bidder, offeror or contractor under state or federal antitrust statutes arising out of the submission of bids or proposals;

(4) Violation by a bidder, offeror or contractor of contract provisions of a character which is reasonably regarded by the Procurement Officer to be so serious as to justify suspension or debarment action such as willful failure to perform in accordance with one or more contracts; provided, that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered as a basis for debarment;

(5) Any other cause occurring within three years of a procurement which the Central Purchasing Office determines to be so serious and compelling as to affect responsibility as a contractor;

(6) For a willful violation by a bidder, offeror or contractor of the provisions of the city procurement code.

(1) State the reasons for the actions taken; and

(2) Inform the business involved of its rights to judicial review.

(D) Notice. A copy of the determination shall be immediately mailed to the debarred or suspended business.

(’87 Code, § 7-2-20) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19)

36.40 JUDICIAL REVIEW.

(A) All actions for judicial review arising from city actions under this procurement code must be filed within 30 days of receipt of notice of any final determination.

(B) Venue is in the district court for the county in which the city is located.

(C) All determinations made by the city shall be sustained unless arbitrary, capricious, contrary to law, clearly erroneous or not based upon substantial evidence.

(’87 Code, § 7-2-21) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19)

36.41 PUBLIC WORKS (CONSTRUCTION) PERFORMANCE AND PAYMENT BONDS.

(A) When a construction contract is awarded in excess of $25,000, performance and payment bonds shall be delivered by the contractor upon the execution of the contract.

(1) If a contractor fails to deliver the required bonds, the contractor’s bid shall be rejected and its bid security shall be enforced to the extent of actual damages.

(2) The performance bond shall be satisfactory to the city, executed by a surety company authorized to do business in this state and the surety to be approved by either the city’s governing authority, the State Board of Finance or in Federal Circular 570 as published by the United States Treasury Department.

(a) The bond shall be in an amount equal to 100% of the contract price.

(b) Prior to bidding, the Central Purchasing Office may reduce the amount of the performance bond to not less than 50% of the contract price, if it is determined to be less costly or more advantageous to the city to self-insure a part of the performance of the contractor.

(3) The payment bond shall be satisfactory to the city, executed by a surety company authorized to do business in this state and the surety company to be approved by either the governing body of the city, the State Board of Finance or in Federal Circular 570.

(a) The bond shall be in an amount equal to 100% of the contract price, for the protection of all persons supplying labor and material to the contractor or its subcontractors for the performance of the work provided for in the contract.

(b) Prior to bidding, the Central Purchasing Office may reduce the amount of the payment bond to not less than 50% of the contract price, if it is determined that is in the best interest of the city to do so. Factors to be considered in order to make such a determination include, but are not limited to: the value and number of subcontracts to be awarded by the contractor and the value of the contract.

(B) Projects under $25,000. For contracts under $25,000 the city may, at its sole and complete discretion, require the bonds in this section.

(’87 Code, § 7-2-22) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19)

36.42 MINIMUM WAGE RATES (CONSTRUCTION).

Every proposed construction contract in excess of the minimum threshold set forth by state statute shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics. With respect to all such contracts, the New Mexico Department of Workforce Solutions (or successor agency) shall be contacted for a wage rate determination.

(’87 Code, § 7-2-23) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 14-19)

36.43 CONSTRUCTION CONTRACT PROGRESS PAYMENTS; SCHEDULE OF VALUES.

(A) Contracts for construction may require that the schedule of values by which progress payments are determined include an amount reasonably calculated to represent faithful completion of the contractor’s work and close-out of all outstanding, incomplete, or deficient work. If a dispute arises as to work performed or materials supplied, the city shall have no duty to pay such amount as may be reasonably calculated to secure the contractor’s faithful completion of such work. All other money due the contractor shall be paid.

(B) Construction contracts awarded by the city shall define a contract dispute in a manner that adequately protects the city and secures the faithful completion of the work. Contract disputes may include, but shall not be limited to:

(1) Defective work not remedied;

(2) Third party claims filed or reasonable evidence indicating probable filing of such claims;

(3) Failure of the contractor to make payments properly to subcontractors or for labor, materials or equipment;

(4) Reasonable evidence that the work cannot be completed for the unpaid balance of the contract sum;

(5) Damage to the city or another contractor;

(6) Reasonable evidence that the work will not be completed within the contract time; or

(7) Persistent failure to carry out the work in accordance with the contract documents.

(C) Upon completion and acceptance of each separate building, public work or other division of the contract, on which the price is stated separately in the contract, payment may be made without regard to the completion of other separate building(s), work(s) or division(s).

(’87 Code, § 7-2-24) (Ord. 82-31; Am. Ord. 94-001; Am. Ord. 08-40; Am. Ord. 14-19)

36.44 PUBLIC WORKS MEDIATION.

(A) State statute, NMSA 1978 §§ 13-4C-1 through 13-4C-11 (as amended), mandates that all disputes related to the performance of a public works project shall exhaust procedures set forth in the Public Works Mediation Act before seeking judicial relief. Disputes arising pursuant to the Public Works Minimum Wage Act, the Workers’ Compensation Act, or disputes regarding an apprenticeship, are exempted from the mandatory public works mediation process.

(B) A dispute that arises under an arbitration clause of a contract for a public works project that includes a clause in the contract that requires arbitration is exempt from the provisions of the Public Works Mediation Act.

(C) When a public works project involves the expenditure of federal funds, the mediation process shall be conducted in accordance with mandatory applicable federal law and regulations. When mandatory applicable federal law or regulations are inconsistent with the Public Works Mediation Act, compliance with federal law or regulations shall constitute compliance with the Public Works Mediation Act.

(Ord. 14-19; Am. Ord. 19-18)

INVESTMENTS

36.55 TITLE.

This subchapter may be referred to as the “Municipal Investment Subchapter.”

(’87 Code, § 7-16-1) (Ord. 98-015; Am. Ord. 10-29; Am. Ord. 17-09)

36.56 PURPOSE AND SCOPE.

(A) The purpose of this subchapter is to set forth the general requirements for the investment of city funds in a manner that maximizes safety of principal while ensuring that funds are available to meet the operating needs of the city and to meet unanticipated cash demands while earning the highest possible return within the parameters established by the Charter, this code and the laws of New Mexico.

(B) Unless otherwise noted, these requirements apply to all financial assets over which the city has direct control as well as those funds that the city is responsible for as custodian or trustee.

(’87 Code, §§ 7-16-2, 7-16-3) (Ord. 98-015; Am. Ord. 10-29; Am. Ord. 17-09)

36.57 DELEGATION OF AUTHORITY; INVESTMENT POLICY.

(A) Delegation of authority.

(1) Authority to manage the investment program is granted to the Treasurer, which is defined in Section 6.01 of the City Charter as the Director of the Department of Finance unless another person is designated by resolution. Any authority granted in state statute shall be secondary to lawfully enacted ordinances of the city. The Treasurer shall be responsible for all transactions undertaken and shall establish an investment policy to set the specific policy requirements and guidelines for the investment of city funds and a system of controls to regulate the activities of subordinate officials.

(2) No person may engage in an investment transaction except as provided under this subchapter, the investment policy and the procedures established by the Treasurer.

(3) The governing body has ultimate fiduciary responsibility for the investment of city funds.

(B) Investment policy.

(1) The investment policy shall, at a minimum, establish the following:

(a) Objectives for management of investments;

(b) Investment strategy considerations;

(c) Authority, responsibilities and duties for management of the investment program including but not limited to those of the Treasurer and Investment Advisory Board;

(d) Requirements for depository services and authorized security broker/dealers or other financial institutions used in the city’s investment program;

(e) An internal control structure designed to provide reasonable assurance that the investment program will protect against loss, theft and misuse;

(f) Requirements for delivery versus payment of investment trades;

(g) A list of authorized investment instruments in compliance with NMSA § 6-10-10 (NMSA 1978 annotated);

(h) Process for selection of investment instruments;

(i) Investment collateralization requirements;

(j) Safekeeping requirements;

(k) Parameters for investment diversification; and

(l) Requirements for reporting on the investment program.

(2) The investment policy shall be reviewed and approved by the governing body periodically as necessary to address changes in economic conditions, best practices and changes to state law but no less frequently than every three years.

(’87 Code, §§ 7-16-4, 7-16-6) (Ord. 98-015; Am. Ord. 10-29; Am. Ord. 17-09; Am. Ord. 22-25)

36.58 PRUDENCE REQUIRED.

The standard of prudence to be used by the city for managing its investments is the Uniform Prudent Investor Act (UPIA). Investment officers acting within the parameters of this subchapter and this investment policy and exercising due diligence shall be relieved of personal liability for an individual security’s credit risk or market price changes, provided deviations from expectations are reported in a timely fashion so that appropriate actions can be taken to reduce risk in accordance with the terms of this subchapter.

(’87 Code, §§ 7-16-5, 7-16-9, 7-16-10) (Ord. 98-015; Am. Ord. 00-018; Am. Ord. 10-29; Am. 17-09)

36.59 INTERNAL CONTROLS.

The Treasurer shall establish and maintain an internal control structure designed to ensure that the assets of the city are protected from loss, theft or misuse. The internal control structure shall be designed to provide reasonable assurance that these objectives are met. The concept of reasonable assurance recognizes that the cost of a control should not exceed the benefits likely to be derived and the valuation of costs and benefits requires estimates and judgments by management. Accordingly, the Treasurer shall establish a process for annual independent review by an external auditor to assure compliance with policies and procedures.

(’87 Code, §§ 7-16-7, 7-16-8, 7-16-12) (Ord. 98-015; Am. Ord. 10-29; Am. Ord. 17-09)

36.60 INVESTMENT ADVISORY BOARD.

The Governing Body has determined that formal citizen input regarding the management of a voter-approved City Charter permanent fund and associated investment policy, as well as other local government investment portfolios and associated policy, is appropriate and advantageous. An Investment Advisory Board is established in Chapter 33, Boards, Commissions, and Committees.

(’87 Code, § 7-16-11) (Ord. 98-015; Am. Ord. 10-29; Am. Ord. 11-18; Am. Ord. 17-09; Am. Ord. 22-25)

36.61 CONFLICTS OF INTEREST.

(A) Officers and employees involved in the investment process, including all members of the Investment Advisory Board, shall:

(1) Refrain from personal business activity that could conflict with the proper execution and management of the investment program or that could impair their ability to make impartial decisions;

(2) Disclose at the beginning of each fiscal year any material interests in financial institutions with which they conduct business;

(3) Disclose at the beginning of each fiscal year any personal, financial or investment positions that could be related to the performance of the investment portfolio; and

(4) Refrain from undertaking personal investment transactions with the same individual with whom business is conducted on behalf of the city.

(B) Nothing herein shall be construed to bar any individual from using any financial institution for normal consumer transactions, including but not limited to checking accounts, savings accounts, consumer credit cards, certificates of deposit and money market funds, all on the same terms as the institution offers to the general public.

(’87 Code, § 7-16-13) (Ord. 98-015; Am. Ord. 10-29; Am. Ord. 17-09; Am. Ord. 22-25)

36.62 EXEMPTIONS.

Any investment held by the city at the time of the enactment of this subchapter that does not meet the guidelines of this policy shall be liquidated as soon as possible.

(’87 Code, § 7-16-14) (Ord. 98-015; Am. Ord. 10-29; Am. Ord. 17-09)

GROSS RECEIPTS INVESTMENT POLICY

36.75 SHORT TITLE.

This subchapter may be referred to as the Gross Receipts Investment Policy or GRIP.

(Ord. 02-031; Am. Ord. 04-003; Am. Ord. 20-05)

36.76 PURPOSE.

This subchapter establishes standards and procedures for financing, through the refund of gross receipts taxes, the development and construction of city infrastructure necessary to recruit, secure and support the location of new retail and certain targeted commercial businesses within the city. The city, by written agreement, may repay the GRIP qualifying entity for the cost of reasonable and necessary public infrastructure related to the development of new retail and certain targeted commercial businesses and/or may reimburse impact fees where the reimbursement thereof is instrumental in bringing the retail or targeted commercial business to the city. Written agreements between the city and a GRIP qualifying entity for GRIP qualifying projects shall be submitted to the Governing Body for approval.

(Ord. 02-031; Am. Ord. 04-003; Am. Ord. 20-05)

36.77 GRIP PROJECT QUALIFICATIONS.

(A) GRIP is to be used to facilitate the attraction of large-scale retail or targeted commercial development, including malls; regional sports and entertainment venues or complexes; large-volume, destination restaurants, including nationally recognized chain outlets, not yet existing within the metropolitan area and meeting criteria set forth below; destination hotel/conference centers; automobile dealerships or auto malls; regional health centers; central office or headquarters of large-scale or regional professional or technical firms, including architects, engineers, attorneys, accountants, and/or physicians; and other mixed-use centers consisting of multiple retail and commercial businesses operating on a single site. However, small-scale retail or targeted commercial businesses or developments can be approved for a GRIP project if the Governing Body determines that the project qualifies under one or more established criteria and is in the public interest. The GRIP applicant must demonstrate financial responsibility and provide a performance bond or other acceptable guarantee for the satisfactory completion of infrastructure construction. GRIP agreements can also be used to refund impact fee payments for a new retail or targeted commercial business upon a showing that a refund is instrumental in the retail business decision to locate in the city.

(B) For a project to qualify under the GRIP, the GRIP applicant must demonstrate one or more of the following:

(1) Gross receipts tax (GRT) eligible transactions are projected to meet or exceed $3,000,000 per year after three years of operation for the project;

(a) For the period of July 1, 2020, through June 30, 2023, the gross receipts tax (GRT) eligible transactions requirement shall be reduced to $1,000,000 with the purpose of supporting small business creation. The aforementioned time frame shall correspond to the effective date of the ordinance (and no other dates related to the GRIP agreement or project);

(2) The project is a food service or restaurant with a seating capacity of not less than 50 persons;

(3) The project is a hotel of not less than 60 rooms;

(4) The project will provide employment for at least 25 employees (not including construction employment);

(a) For the period of July 1, 2020, through June 30, 2023, the employment requirement shall be reduced to five employees with the purpose of supporting small business creation. The aforementioned time frame shall correspond to the effective date of the ordinance (and no other dates related to the GRIP agreement or project);

(5) The project represents an expansion of an existing business operation within Rio Rancho, at least doubling existing square footage, adding a new location within municipal boundaries while maintaining existing operations, or increasing retail space by 10,000 square feet, whichever is less.

(Ord. 02-031; Am. Ord. 04-003; Am. Ord. 19-15; Am. Ord. 20-05)

36.78 AUTHORIZED USES AND ELIGIBLE EXPENDITURES.

The city is authorized to enter into a GRIP agreement for any one or more of the following:

(A) The acquisition, construction, rehabilitation, construction of additions or making of any improvements to city-owned parking lots;

(B) The acquisition, extension, enlargement, repair or other improvement of or maintenance of storm sewers and other drainage improvements, sanitary sewers, sewage treatment plants or other water utility infrastructure, including but not limited to the acquisition of rights-of-way and water rights, or any combination of the foregoing;

(D) The reconstruction, extension, resurfacing, maintenance, repair or otherwise improvement of existing alleys, streets, roads, or any combination of the foregoing, or for the construction or acquisition of new alleys, streets, roads, or any combination thereof, inclusive of acquisition of any rights-of-way and public transportation transfer facilities;

(E) The purchase, acquisition, or clearing of any land in conjunction with the authorized uses in this section, or the purchase or acquisition and beautification of land for open space;

(F) The acquisition, construction, equipping, furnishing, making additions to, renovating, rehabilitating, beautifying or otherwise improving public parks, public recreational facilities, civic, conference, or convention centers, sports stadiums or arenas, or any combination thereof;

(G) The refund of impact fees which provides a specific incentive for location of the retail or commercial business in the city;

(H) The acquisition or construction of any other related public infrastructure that enhances and encourages the location of new retail or commercial business within the city.

For the avoidance of doubt, GRIP is not solely limited to new construction projects. If a project entails adaptive reuse, infill and/or other forms of redevelopment and would incur eligible expenditures pursuant to this section, it could pursue a GRIP application for consideration by the Governing Body.

(Ord. 02-031; Am. Ord. 04-003; Am. Ord. 20-05)

36.79 PUBLIC HEARING AND APPROVAL BY THE GOVERNING BODY.

Prior to the initiation of a GRIP qualifying project, the Governing Body shall hold a public hearing in which the GRIP applicant must present a reasonable estimate of projected gross receipts tax revenues due the city from the planned development. The estimated tax revenues must be supported by an independent economic analysis. The GRIP applicant shall also present estimated eligible expenditures for which it is seeking GRIP reimbursement. The purpose of the hearing is to determine whether the project qualifies as a project under the GRIP, is in the public interest and justifies a GRIP agreement. The Governing Body shall by ordinance approve the agreement providing for the contingent liability of the GRIP project payments prior to the agreement becoming effective.

(Ord. 02-031; Am. Ord. 04-003; Am. Ord. 20-05)

36.80 REPAYMENT AND SPECIAL FUND.

Upon a finding that the proposed GRIP project qualifies as a GRIP qualifying project and is in the public interest, the city and GRIP qualifying entity may enter into an agreement wherein the city shall reimburse to the GRIP qualifying entity up to three-fourths (75%) of the city’s share of total gross receipts taxes directly attributable to the project, less any amount dedicated to other special purposes, received by the city each year for a specified number of years. Such payments shall not exceed the actual cost expended for the development of the public infrastructure. The GRIP qualifying entity shall provide clear documentation of the actual cost expended. The collection and pledge of allocated gross receipts tax revenues from the GRIP qualifying project constitute a special fund and are the sole and only source pledged or otherwise available for the repayment of the GRIP qualifying project.

(Ord. 02-031; Am. Ord. 04-003; Am. Ord. 20-05)

36.81 TERMS OF THE AGREEMENT.

Any agreement entered into pursuant to the GRIP must contain provisions for the following:

(A) A detailed description of the GRIP qualifying project, including, but not limited to, the authorized uses and eligible expenditures, pursuant to Section 36.78, eligible for GRIP repayment;

(B) An estimation of GRIP eligible expenditures for repayment. Pursuant to Section 36.80, GRIP repayments shall not exceed the actual cost expended for the authorized uses and eligible expenditures;

(C) The GRIP qualifying entity must pay all necessary and required fees, including impact fees, for all permits, licenses, inspections, approvals, and authorizations necessary for the construction of the project;

(D) At its own expense and on behalf of and for the city’s benefit, the GRIP qualifying entity must construct or otherwise acquire the reasonable and necessary infrastructure approved by the Governing Body as the GRIP qualifying project, or otherwise pay applicable impact fees;

(E) The GRIP qualifying entity shall adhere to statutory and ordinance requirements, including labor and employment laws and the city’s procurement code, which would otherwise apply if the city were undertaking the construction of the infrastructure;

(F) The GRIP qualifying entity shall dedicate the public infrastructure and associated land to the city upon completion or acquisition of such infrastructure;

(G) The GRIP qualifying entity shall pay all costs of acquisition if the city must assist in the acquisition of land for the public infrastructure through its power of condemnation or otherwise;

(H) The GRIP qualifying entity shall agree that its only recourse for payment of the GRIP qualifying project costs is the special fund created by revenues collected from the gross receipts taxes paid by the GRIP qualifying entity’s project pursuant to the agreement and that the city has no other liability of whatever kind, whether in law or equity, to the GRIP qualifying entity;

(I) The GRIP qualifying entity shall provide specific proof of financial responsibility and such proof shall be incorporated into the agreement, as well as evidence of a performance bond or other guaranty;

(J) The GRIP qualifying entity shall provide for an acceptable method of reporting applicable retail sales or gross operating receipts to the city in order to administer compliance with the agreement and shall agree to an annual audit by the city;

(K) The term of the GRIP agreement shall provide sufficient duration for the GRIP qualifying entity to receive repayment for the estimated cost of the authorized uses and eligible expenditures based on the forecasted gross receipts of the GRIP qualifying project. The GRIP agreement shall expire at the sooner of the established end date or full repayment of the actual cost expended for the authorized uses and eligible expenditures.

(Ord. 02-031; Am. Ord. 04-003; Am. Ord. 20-05. Formerly 36.82)

36.82 EXPEDITED PERMIT PROCEDURES.

The City Development Department shall provide for the expedited review of all permits and approvals necessary for both the construction of the new business and associated GRIP developments. Prior payment of all fees and receipt of all relevant building permits are prerequisites to eligibility for reimbursement under GRIP.

(Ord. 02-031; Am. Ord. 04-003; Am. Ord. 20-05. Formerly 36.81)

MUNICIPAL EVENT CENTER SURCHARGE

36.90 SHORT TITLE.

This subchapter may be cited as the “Municipal Event Center Surcharge Ordinance.”

(Ord. 05-20)

36.91 DEFINITIONS.

For purposes of this subchapter the following definitions shall apply unless the context clearly indicates or requires a different meaning.

CITY. The City of Rio Rancho, New Mexico.

EVENT CENTER RECEIPTS. The total amount of money or the value of other consideration paid to a vendor by a purchaser of property or services related to the Municipal Event Center or related to activities occurring at the Municipal Event Center, whether occurring at the Municipal Event Center or not, including but not limited to, tickets, parking, souvenirs, concessions, programs, advertising, merchandise, corporate suites or boxes, and broadcast revenues, for use by the purchaser of the property or service. EVENT CENTER RECEIPTS shall include interest and penalty related thereto. EVENT CENTER RECEIPTS shall not include:

(1) The total amount of money or the value of other consideration paid by the city for constructing, renovating, equipping, operating, maintaining or improving the Municipal Event Center or for administering the Event Center surcharge;

(2) Amounts paid by purchasers and collected by vendors as the Event Center surcharge;

(3) Motor vehicle sales subject to the New Mexico Motor Vehicle Excise Tax pursuant to Article 14 of Chapter 7, NMSA 1978; or

(4) Sales of boats subject to the excise tax on boats levied by NMSA 1978 § 66-12-6.1.

EVENT CENTER SURCHARGE or SURCHARGE. A surcharge to be included in each vendor contract on tickets, parking, souvenirs, concessions, programs, advertising, merchandise, corporate suites or boxes, broadcast revenues and all other products or services sold at or related to the Municipal Event Center or related to activities occurring at the Municipal Event Center.

MUNICIPAL EVENT CENTER or EVENT CENTER. An event center providing seats for a minimum of 4,000 people, including land, buildings and related improvements, primarily designed and intended for cultural, educational, entertainment and sporting events, but does not include a civic or convention center.

TREASURER. The City Treasurer or the Treasurer’s duly authorized delegate.

USE. Includes, use, storage or consumption. USE excludes subsequent sale or resale by the purchaser of the property or service.

VENDOR. Every person, corporation, partnership or other entity, including a division or department of the city, providing products or services sold at or related to a Municipal Event Center within the city, whether occurring at the Municipal Event Center or not, including but not limited to, tickets, parking, souvenirs, concessions, programs, advertising, merchandise, corporate suites or boxes, and broadcast revenues.

VENDOR CONTRACT. A contract, agreement or other written arrangement between the city and a vendor pursuant to which the vendor provides products or services sold at or related to the Municipal Event Center.

(Ord. 05-20; Am. Ord. 13-19)

36.92 IMPOSITION OF SURCHARGE.

(A) There is imposed an Event Center surcharge equal to 12% of the Event Center receipts which is to be included in each vendor contract, except for ticket sales and retail sales by a trade show vendor during a trade show on which there is imposed an Event Center surcharge equal to seven percent of the Event Center receipts, which is also to be included in each vendor contract. For non-event day restaurant food and beverage sales the surcharge imposed shall be equal to the prevailing Gross Receipts Tax for Rio Rancho Location Code 29-524 as published by the New Mexico Taxation and Revenue Department on the first of January and July of each year. Two percent of the Event Center receipts collected monthly by each vendor and paid to the City as Event Center surcharge revenues shall be transferred monthly to the tax administration suspense fund maintained by the New Mexico Taxation and Revenue Department. Ten percent of sales other than tickets and retail sales by trade show vendors during trade shows, five percent of sales of tickets and retail sales by trade show vendors during trade shows of the Event Center receipts, and the net of the prevailing Rio Rancho gross receipts tax for Rio Rancho Location Code 29-524, less two percent charged on non-event day restaurant food and beverage sales collected monthly by each vendor and paid to the City as Event Center surcharge revenues shall be deposited in the Municipal Event Center Fund created in Section 36.99.

(B) To facilitate collection of the surcharge, Event Center receipts paid to vendors are presumed to be Event Center receipts from the sale of property or performance of services for use by the purchaser of the property or service. Vendors or purchasers may overcome the presumption by presenting the Treasurer reasonable evidence that the receipts are receipts from a sale for resale by the vendor to the purchaser.

(C) No vendor may claim before the Treasurer that its receipts are from a sale for resale who has not first registered with the Treasurer as provided in Section 36.93.

(Ord. 05-20; Am. Ord. 09-28; Am. Ord. 11-13; Am. Ord. 12-24)

36.93 REGISTRATION REQUIRED.

(A) No vendor shall sell any product or service at the Municipal Event Center, or related to the Municipal Event Center, or related to activities occurring at the Municipal Event Center, who has not registered with the Treasurer.

(B) Any vendor who fails to register with the Treasurer shall be subject to a fine not to exceed $500.

(Ord. 05-20)

36.94 ADMINISTRATION OF SURCHARGE.

(A) Every vendor shall collect the surcharge on behalf of the city and shall act as trustee therefor. Vendors are liable for payment to the city of the surcharge, whether due to the vendor’s failure to collect the surcharge or otherwise.

(B) Receipts from the surcharge shall be remitted to the Treasurer no later than the 25th calendar day of the month following the month of collection of the surcharge. If any amount of the surcharge is not paid on or before the day on which it becomes due, interest shall be paid to the city from the first day following the day on which the surcharge becomes due, without regard to any extensions, until paid. Interest due shall be at a rate of 12% per annum and shall be computed on a daily basis.

(C) The Treasurer is authorized to require vendors to separately state the surcharge on any or all transactions subject to the surcharge, or to make such returns or provide such other information as will reasonably allow the Treasurer to determine the vendor’s liability for collection of the surcharge.

(D) Every vendor shall keep such records as will allow the Treasurer to determine accurately the amount of the surcharge due to the city. Every vendor liable for the surcharge shall make its books and records available for inspection by the Treasurer during regular business hours and shall retain such records for three years.

(E) The Treasurer may select for random audit(s), by the Treasurer or by an independent auditor, one or more vendors to verify the amount of Event Center receipts subject to the surcharge and to ensure that the full amount of the surcharge is collected from each vendor thus audited.

(F) On behalf of the city, Treasurer may bring suit to enforce the imposition and collection of the surcharge or enforce provisions of any vendor contract entered into pursuant to the Municipal Event Center Funding Act. The Treasurer is authorized to seek all remedies available at law or in equity.

(G) The Treasurer is authorized to enter into agreements with state and local governments and with vendors to facilitate reporting, payment or collection of the surcharge.

(Ord. 05-20)

36.95 LIEN FOR PAYMENT OF SURCHARGE.

(A) The surcharge imposed by the city constitutes a lien in favor of the city upon the personal and real property of the vendor. The lien may be enforced as provided in NMSA §§ 3-36-1 through 3-36-7. Priority of the lien shall be determined from the date of filing.

(B) The City Treasurer may release a lien against any specific property by signing a receipt of payment upon the notice of lien filed in the office of the Sandoval County Clerk after written verification of the amount due by the Treasurer including actual amounts due from monthly reports from the vendor plus accrued interest and penalties. If payment is made by check, actual release of lien will be available two weeks after payment is made.

(C) In the event a suit to foreclose the lien has been instituted, such suit shall be dismissed at any time before foreclosure sale upon receipt of all payments and interest provided for herein and payment of all costs of the foreclosure proceeding attributable to the property sought to be released, including reasonable attorney’s fees.

(D) Under the process or order of court, no person shall sell the property of a vendor without first ascertaining from the Treasurer the amount of any surcharge due to the city. Any surcharge due to the city shall be paid from the proceeds of the sale before payment is made to any judgment creditor or any other person with a claim on the proceeds of the sale.

(Ord. 05-20)

36.96 EXTENSION OF TIME.

The Treasurer may, for good cause shown, extend the date of payment of the surcharge, or other time limitation imposed by the this subchapter, for a total period not to exceed 60 days. No extension of the time to remit the surcharge shall prevent the accrual of interest.

(Ord. 05-20)

36.97 REFUND AND CREDIT.

If any person believes he or she has made payment of the surcharge in excess of that for which the person was liable, then that person may claim a refund thereof by directing to the Treasurer, no later than 90 days from the date payment was made, a written claim for refund. Every claim for refund shall identify the person claiming the refund, state the amount of the refund claimed and the basis for the claim for refund. The Treasurer shall allow the claim in whole or in part or may deny it.

(Ord. 05-20)

36.98 CONFIDENTIALITY OF RETURN AND AUDIT.

It is unlawful for any employee of the city to reveal to any individual other than another employee or elected official of the city any information contained in that return or audit of any vendors subject to the surcharge, except to a court of competent jurisdiction in response to an order thereof in an action relating to the surcharge to which the city is a party, and in which information sought is material to the inquiry; to the vendor himself or to his authorized representative; and in such manner, for statistical purposes, the information revealed is not identified as applicable to any individual vendor.

(Ord. 05-20)

36.99 CREATION OF FUND; USE AND DISTRIBUTION OF SURCHARGE REVENUES.

(A) Revenue from the surcharge to be transferred to the tax administration suspense fund maintained by the New Mexico Taxation and Revenue Department shall be transferred by the Treasurer no later than the 15th day of the month following payment of the revenue from the surcharge by the vendor to the city.

(B) Revenue from the surcharge not transferred to the tax administration suspense fund shall be held in a separate municipal event center fund to be established and maintained by the Treasurer as required by the Municipal Event Center Funding Act.

(1) Payments of principal, interest, premiums, charges, expenses or other obligations required to be paid relating to bonds issued by the city pursuant to the Municipal Event Center Funding Act;

(2) Costs of operating a municipal event center during the life of bonds issued by the city pursuant to the Municipal Event Center Funding Act;

(3) The direct or indirect costs of constructing, renovating, equipping, maintaining or otherwise improving a municipal event center or related parking facilities in the city; or

(4) The costs of collecting or administering the surcharge.

(Ord. 05-20)

36.100 SEVERABILITY CLAUSE.

If any section, paragraph, sentence, clause, word or phrase of this subchapter is for any reason held to be invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this subchapter. The Council hereby declares that it would have passed this subchapter and each section, paragraph, sentence, clause, word or phrase thereof irrespective of any provisions being declared unconstitutional or otherwise invalid.

(Ord. 05-20)

ART IN PUBLIC PLACES

36.101 PURPOSE.

The intent of this article is to implement the vision of Delma M. Petrullo by promoting and encouraging private and public programs to further the development and public awareness of, and interest in, the visual arts and fine crafts; to increase employment opportunities in the arts; and to encourage the integration of art into the architecture of municipal structures.

(Ord. 10-37)

36.102 DEFINITIONS.

For the purpose of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

CAPITAL IMPROVEMENTS PROGRAM. Except for water, wastewater and drainage facilities, all other capital improvements defined in Section 150.25(B), R.O. 2003, funded by the sale of city general obligation bonds for such purpose.

CITY MANAGER. The City Manager or the City Manager’s designee.

COMMISSION. The Arts Commission established by Section 33.27.

WORK OF ART. Any work of visual art, including but not limited to a drawing, painting, mural, fresco, sculpture, mosaic, photograph, work of calligraphy, work of graphic art (including an etching), works in clay, textile, fiber, wood, metal, plastic, glass, and like materials, or mixed media (including a collage, assemblage, or any combination of the foregoing art media). For projects which involve no structures, “work of art” may include a combination of landscaping and landscape design (including some natural and manufactured materials such as rocks, fountains, reflecting pools, sculpture, screens, benches, and other types of street furniture). Except as provided herein, the term “work of art” does not include environmental landscaping or the performing or literary arts such as dance, voice, music or poetry unless expressed in a manner defined above.

(Ord. 10-37)

36.103 ARTS COMMISSION.

(A) The Arts Commission established by Section 33.27 (“Commission”) shall have initial and primary responsibility for recommending expenditures of funds under this article.

(B) Conflict of Interest. A Commission or subcommittee member having a financial interest in the outcome of any policy, decision, or determination before the Commission or subcommittee on which he serves shall, as soon as possible after such interest becomes apparent, disclose to each of the other members voting on the matter the nature of his financial interest in the issue, and shall be disqualified from participating in any debate, decision or vote relating thereto.

(Ord. 10-37)

36.104 POWERS AND DUTIES.

In addition to the powers and duties given the Commission by Section 33.27, the Commission shall:

(A) Make recommendations to the City Manager on the acquisition of works of art for city-owned facilities.

(B) Make recommendations to the City Manager for any work of art to be funded from the capital improvement program as provided for in Section 36.105(A) with regard to an artist, a design proposal and/or a work of art to be approved.

(C) Make recommendations to the City Manager for any work of art which will be a part of the public art collection and which will be funded or partially funded by non-capital improvement program sources including the public site for the display of such art and establish criteria for the selection of the artist and/or the work of art or make recommendations regarding the proposed artist and/or work of art.

(D) Advise the City Manager on the proposed removal, relocation or alteration of any public arts project or works of art in the possession of the city but which are not collections or exhibitions of other city departments.

(E) Make recommendations to the City Manager on any arts program to be supported by the city other than the programs operated by other city departments.

(F) Recommend to the City Manager programs and facilities to further the development and public awareness of the visual arts and fine crafts.

(G) Seek private donations to the public art program, and advise the City Manager regarding additional sources of public funds for the program.

(H) Establish and recommend to the Governing Body guidelines necessary and appropriate to carry out the purposes of this article (Section 36.101 et seq.), including but not limited to criteria for selection of artists and artwork, maintenance of a file of interested artists, payment practices, procedures for artistic competitions, and requirements for the maintenance of works of art, to be adopted by the Governing Body in the city’s policies and procedures.

(I) Establish a system of active coordination with the city’s capital improvement program and other building activities to ensure that works of art are properly integrated into the built environment.

(J) Establish subcommittees or ad hoc task forces to advise and assist the Commission, including but not limited to recommending artists or artwork to be funded from the capital improvement program as provided for in Section 36.105(A). Local selection committees may be established as subcommittees to the Commission to recommend to the Commission an artist or a work of art to be funded from the capital improvement program as provided for in Section 36.105(A). Subcommittee and task force members shall be appointed by the Commission for terms to be specified by the Commission.

(K) Serve as an advisory commission for such city arts or cultural properties and programs as directed by the City Manager.

(Ord. 10-37)

36.105 FUNDS FOR THE ACQUISITION OF ART FOR MUNICIPAL PROPERTY.

(A) Projects in the capital improvement program shall include an amount for works of art equal to one percent of each bond purpose; provided, however, that if:

(1) The bond election ordinance; or

(2) Other appropriate laws or regulations; or

(3) An official interpretation by another governmental entity regarding allowable uses for funds which such entity is providing for the project precludes art as an expenditure of funds, then the amount of funds so restricted shall be excluded from the total project cost in calculating the amount to be committed to works of art.

(B) Funds generated as described in subsection (A) of this section shall be budgeted as part of the capital improvements program budget. Additional private or public funds for works of art may be added to these funds and shall be budgeted in a similar manner. Such funds may be earmarked for particular projects.

(C) The public art program shall expend no more than 20% of the total amount allocated to the public art program for the administrative costs of the program and to restore and conserve public works of art to protect public investment. The appropriation will be made at the same time as the appropriation for all projects within the capital improvement program.

(D) Progress payments may be made to the artist for works of art which have been approved by the City Manager. Such payments may reimburse the artist for the cost of materials or for services which have already been performed. At least 25% of the total amount to be paid to the artist shall not be disbursed to the artist until the work of art is formally accepted by the City Manager.

(E) Nothing contained herein shall preclude funding the acquisition of art for municipal property in other ways.

(Ord. 10-37)

36.106 GENERAL REQUIREMENTS FOR ART SELECTION.

(A) The work of art may be an integral part of a structure, attached to a structure or detached from the structure within or outside of it. It may also be located on publicly owned property where there are no structures.

(B) Any work of art which is chosen must comply with the following standards in addition to guidelines established by the Arts Commission and approved by the City Manager:

(1) The work of art must be located in a public place with public visibility and impact.

(2) The work of art shall have a permanence at least comparable to the lifetime of the bond funding the work of art and shall be likely to remain a thing of value for this time period.

(3) The work of art shall enhance the environment of the city.

(C) The Commission shall recommend an artist, a design proposal and/or a completed work of art, which shall be selected in a manner consistent with the guidelines promulgated by the Arts Commission and approved by the City Manager. The Commission may recommend purchasing a completed work of art, commissioning a work of art, holding a competition to select a work of art, or creating some other timely and appropriate mode of selection. The Commission shall consult with the user agency and project design consultants, if applicable, and involve them in the planning process in the manner that appears most feasible. The City Manager shall accept or reject the recommendation of the Commission. If the City Manager rejects the recommendation, the Commission shall make another recommendation in accordance with the standards and procedures outlined in this section.

(D) The Commission shall make its recommendations in a timely manner in accordance with the project schedule and timetable provided by the City Manager. If the Commission fails to make a recommendation within the timetable established by the City Manager, the City Manager may identify another appropriate public procedure to select an artist or work of art without receiving a recommendation from the Commission, unless the Commission and the City Manager have mutually agreed in writing to an extension of the time period. The time period shall be extended, if necessary, if the City Manager rejects the Commission’s recommendation.

(Ord. 10-37)

36.107 ADMINISTRATIVE RESPONSIBILITIES.

(A) The City Manager shall provide adequate staffing and administrative support for enabling the Arts Commission and any of its subcommittees to carry out their duties.

(B) The capital improvement program and/or user agency shall be responsible for the conservation and maintenance of all works of art in the public art program. The Commission shall prepare and deliver to the Governing Body an annual report on the condition and maintenance requirements of all works of art in the public art program.

(Ord. 10-37)

36.108 APPLICABILITY.

This article is not intended to amend any bond question submitted to the voters or any bond ordinance authorizing revenue bonds.

(Ord. 10-37)

36.109 LOCAL ECONOMIC DEVELOPMENT PLAN.

(A) Local economic development plan. In accordance with Sections 5-10-1 et seq. NMSA 1978 (the “Local Economic Development Act”), the purpose of the economic development plan ordinance is to allow public support of economic development projects to foster, promote and enhance local economic development efforts while continuing to protect against the unauthorized use of public money and other public resources. Further, the purpose of the Local Economic Development Act plan ordinance is to allow the city to enter into one or more joint powers agreements with other local governments to plan and support regional economic development projects. The Local Economic Development Act plan ordinance is not intended to restrict projects or assistance otherwise allowed by law.

(B) Definitions. The following definitions apply to the economic development plan ordinance:

ECONOMIC DEVELOPMENT PROJECT. The project of a qualifying entity for which public support may be provided pursuant to this section.

PROJECT PARTICIPATION AGREEMENT. An agreement between a qualifying entity and the city whereby the city provides public support to an economic development project in exchange for the benefits received as set forth in the Local Economic Development Act plan ordinance.

PUBLIC SUPPORT. The provision of assistance by the state to a local or regional government or the provision of direct or indirect assistance to a qualifying entity by a local or regional government for an economic development project. “Public support”:

(1) Includes the provision of:

(a) Land, buildings or other infrastructure, by purchase, lease, grant, construction, reconstruction, improvement or other acquisition or conveyance;

(b) The placement of new broadband telecommunications network facilities; provided, that the facilities shall not serve a public facility or location that already meets Federal Communications Commission baseline speed standards;

(c) Rights-of-way infrastructure, including trenching and conduit, for the placement of new broadband telecommunications network facilities;

(d) Public works improvements essential to the location or expansion of a qualifying entity;

(e) Payments for professional services contracts necessary for local or regional governments to implement a plan or provide public support for a project;

(f) Direct loans or grants for land, buildings or infrastructure;

(g) Technical assistance to cultural facilities;

(h) Loan guarantees securing the cost of land, buildings or infrastructure in an amount not to exceed the revenue that may be derived from an increment of the: (1) municipal gross receipts tax imposed at a rate not to exceed one-fourth percent and dedicated by the ordinance imposing the increment for projects; or (2) county gross receipts tax imposed at a rate not to exceed one-eighth percent and dedicated by the ordinance imposing the increment for projects;

(i) Grants for public works infrastructure improvements essential to the location or expansion of a qualifying entity and grants or subsidies to cultural facilities;

(j) Land for a publicly held industrial park or a publicly owned cultural facility, by purchase; and

(k) The construction of a building for use by a qualifying entity; but

(2) Does not include the purchase, lease, grant or other acquisition or conveyance of water rights.

QUALIFYING ENTITY. A corporation, limited liability company, partnership, joint venture, syndicate, association or other person that is one or a combination of two or more of the following:

(1) An industry for the manufacturing, processing, or assembling of any agricultural or manufactured products;

(2) A commercial enterprise for storing, warehousing, distributing or selling products of agriculture, mining or industry, but not including any enterprise for sale of goods or commodities at retail or for the distribution to the public of electricity, gas, water or telephone or other services commonly classified as public utilities, except as provided by subsection (5), (6) or (9) of this definition;

(3) A business, including a restaurant or lodging establishment, in which all or part of the activities of the business involves the supplying of services to the general public or to governmental agencies or to a specific industry or customer, but, other than as provided in subsection (5) or (9) of this definition, not including businesses primarily engaged in the sale of goods or commodities at retail;

(4) An Indian tribe or pueblo or a federally chartered tribal corporation;

(5) A telecommunications sales enterprise that makes the majority of its sales to persons outside New Mexico;

(6) A facility for the direct sales by growers of agricultural products, commonly known as farmer’s markets;

(7) A business that is the developer of a metropolitan redevelopment project;

(8) A cultural facility as defined by the Local Economic Development Act; and

(9) A retail business that is primarily engaged in the sale of goods or commodities at retail (as defined in State Statute 5-10-3(N)).

(1) The Governing Body may provide public support to qualifying entities in any legally permissible manner including but not limited to provision of land, buildings and infrastructure; provided, that all the requirements of the Local Economic Development Act plan ordinance are met. The city may provide land, buildings or infrastructure it already owns, or it may build, purchase or lease the facilities needed for an economic development project. The city at its discretion may bear the full cost or contribute a portion of the costs including the waiver of applicable fees. The city, at its discretion, may also contribute to the payment of costs for professional services contracts such as industry feasibility studies and planning and design services needed to implement a project. The city’s support may be direct, indirect, and/or by grant contribution(s). The source of funds may be the city’s general fund, appropriate special fund, and/or incremental gross receipts tax generated by the project.

(2) The Governing Body may consider offering all forms of public support allowed under this section and any other legally permissible forms of support; however, this does not establish any obligation on the city’s part to offer any specific type or level of support.

(D) Economic development projects eligible areas, targeted firms, and exclusions from consideration.

(1) Eligible areas. Qualifying entities may submit proposed projects in areas throughout the city. The city’s emphasis shall be, however, on projects in the following areas:

(a) Property designated as M-1 under the city’s applicable zoning ordinance;

(b) Mixed-use commercial developments with substantial amounts of C-1, C-2 and other zonings classification designations for qualified business enterprises; and

(2) Targeted firms. All qualifying entities may submit applications; however, the city’s emphasis shall be projects that:

(a) Are submitted from established qualifying entities, possessing a reputation for their commitment to being a good corporate citizen, understanding and respectful of the natural environment, pursuing high quality projects and the utilization of city’s public utilities is not disproportionate to the size of the project or economic benefits received by the city;

(b) Examples include economic base firms including aerospace, biotechnology, electronics, software developers, major administrative offices, pre- and post-film production enterprises, and others as may be defined from time to time in specific Rio Rancho focused targeted industry studies.

(3) Exclusions from consideration. No qualifying entity shall be excluded from submitting an application for consideration; however, the city’s stated position is that start-up firms and early-stage enterprises, due to the recognized increased and inherent risk for success, shall undergo enhanced economic, feasibility and managerial review.

(E) Application requirements.

(1) Any qualifying entity meeting the definition set forth in this local economic development act plan ordinance may propose a Local Economic Development Act project to the city. No obligation on the part of the city is created by an applicant meeting the definition of a qualifying entity.

(2) Applications from qualifying entities shall be submitted to the office of the City Manager on forms provided by the city. An application shall, as applicable and as determined by city staff, contain the following:

(a) A description of the project, including the nature of the business, a legal description of its boundaries, identity and addresses of all persons or entities with any interest in the facility and whether the facility is locally owned or operated;

(b) The number of new full-time economic base jobs (as defined in State Statute 5-10-3) to be created with detailed information on job types, wage rates and a description of the employee fringe benefits provided, and annual payroll as well as supplemental information on non-economic base and part-time jobs as applicable;

(d) A proposed project schedule for the acquisition, construction and installation of the project, including the expected date(s) the project will be operational;

(e) A statement of plans for project management;

(f) The total dollar amount of the project and financing arrangements;

(g) Information relating to the feasibility of the project including information relating to the ability of the facility to generate revenues to render the facility self-liquidating;

(h) The competition in the type of commerce or industry already existing within the city;

(i) The effect on existing industry and commerce in the city including during and after the construction period, including estimates of the number of local construction jobs created;

(j) Information regarding compliance with City planning and zoning policies and compliance with all federal, state, and local environmental laws, regulations and rules;

(k) Information about the project design, including conceptual site plans and the impacts on the neighborhood such as area enhancement and positive contribution to the neighborhood;

(l) Information about the applicant’s good corporate citizenship, both in terms of promoting donations and volunteerism, its willingness to commit to make local purchases, water use and water conservation practices, and whether facility emissions and/or waste is controlled and the facility has a satisfactory plan for reduction/disposal;

(m) Resumes showing the experience of the applicant/business facility, and the experience of the architect, contractor and leasing agent, if relevant;

(n) Such other information as the city may reasonably require after initial review of the application, including but not limited to preliminary legal opinions, further information regarding the relationship of the application to the city’s development objectives, additional proof of financial capability, business references, and term sheets for financing and financial commitment letters.

(F) Application review process.

(1) City staff, as are necessary and appropriate, shall review the application and advise the City Manager’s office if the entity and the proposed project meet the definitions of this section and the policies and objectives of the city’s economic development plan. The city may at its discretion engage independent consultants to assist in the review of applications. The city may require the applicant to pay for all or a portion of the cost of engaging the consultants. City staff will coordinate, as applicable, with the State of New Mexico Economic Development Department on application review for projects under consideration for state support.

(2) City staff shall determine whether the entity and the proposed project qualify under the city’s economic development plan ordinance.

(3) City staff shall then coordinate with the qualifying entity to develop a project participation agreement as set forth in the Local Economic Development Act plan ordinance.

(4) The City Manager’s office shall consider the economic development project and the project participation and recommend to the Governing Body that the proposal be adopted, conditionally adopted or not adopted.

(5) The recommendation will be forwarded with the project participation agreement, and any other pertinent information to the Governing Body for final consideration at a public hearing.

(G) Application review criteria.

(1) All applications for Local Economic Development Act projects requesting economic assistance from the city shall include an economic impact and/or net fiscal impact analysis. The cost of preparation of the economic impact and/or net fiscal impact analysis shall be the responsibility of the applicant. The city retains the right to specify a format and methodology for the analysis. City staff shall review and approve of the methodology used. The source and rationale for any multiplier effects shall be identified. The analysis shall show that the city will recoup the value of its donation within a period of 10 years. The city may waive this time period for good cause at its sole discretion. To the extent possible, the analysis should address the following:

(a) The number and types of jobs to be created, both temporary construction jobs and permanent jobs;

(b) Wage rates, pay scales, and employee fringe benefit package(s) of the jobs;

(d) Anticipated impact of project on the City of Rio Rancho tax base; and

(e) If practicable, anticipated impact on local school system, and other components of the application requirements of subsection (E) of this section.

(2) All applications for economic development projects requesting economic assistance from the city shall clearly demonstrate the benefits, which will accrue to the community as a result of the public support. The city has considerable flexibility in determining what is considered as adequate benefits. Benefits such as providing components or production capabilities, which enhance a targeted industry cluster or addressing critical deficiencies in the regional economy, may be recognized. The benefits claimed of any proposal will receive careful scrutiny. However, it is the intent of this section to be flexible in the evaluation of these benefits, and to recognize the qualitative as well as quantitative impacts of a proposal.

(3) All applications for economic development projects requesting public support from the city shall clearly demonstrate how the qualifying entity is making a substantive contribution to the community. The substantive contribution shall be of value and may be paid in money, in-kind services, jobs, expanded tax base, property or other thing or service of value for the expansion of the economy. Determination of what constitutes an acceptable contribution for a given project shall be at the discretion of the Governing Body.

(H) Project participation agreement.

(1) The qualifying entity shall prepare with the city a project participation agreement. This agreement is the formal document, which states the contributions and obligations of all parties in the Local Economic Development Act project. The agreement must clearly state the following items:

(a) The economic development goals of the project;

(b) The contributions of the city and the qualifying entity;

(d) A schedule for project development and goal attainment;

(e) The security being offered for the city’s investment;

(f) The procedures by which a project may be terminated and the city’s investment claw-backed; and

(g) The time period for which the city shall retain an interest in the project. Each project agreement shall have a “sunset” clause after which the city shall relinquish interest in and oversight of the project;

(h) Any other provisions required by the Local Economic Development Act in State Statute (Chapter 5, Article 10) as it may be amended from time to time.

(2) Each project participation agreement shall be adopted as an ordinance and adopted by the Governing Body at a public hearing.

(I) Public safeguards.

(1) All Local Economic Development Act projects receiving public support from the city shall be subject to an annual performance review conducted by city staff as established in the project participation agreement. This review shall evaluate whether the project is attaining the goals and objectives set forth in the project participation agreement.

(2) The qualifying entity shall provide security to the city as well as to any other New Mexico governmental entity providing public support for an economic development project. The security shall secure the qualifying entity’s obligations based on terms stated in the project participation agreement with the local or regional government and shall reflect the amount of public support provided to the qualifying entity and the substantive contribution expected from the qualifying entity.

If a qualifying entity fails to perform its substantive contribution, the city shall enforce the project participation agreement to recover that portion of the public support for which the qualifying entity failed to provide a substantive contribution. The recovery shall be proportional to the failed performance of the substantive contribution and shall take into account all previous substantive contributions for the economic development project performed by the qualifying entity, based on the terms stated in the project participation agreement.

The type of security given shall depend upon the nature of the Local Economic Development Act project and assistance provided by the city. Types of security may include, but are not limited to:

(a) Letter of credit in the city’s name;

(b) Performance bond equal to the city’s contribution;

(d) Other security agreeable to both parties.

(3) Should a qualifying entity move, sell, lease or transfer a majority interest in the Local Economic Development Act project before the expiration of project participation agreement, the city retains the right to deny any and all assignments, sales, leases or transfers of any interests in the Local Economic Development Act project until adequate assurances are made that the transferee, assignee or lessee is a qualifying entity and that the terms of the agreement will be satisfied by the transferee, assignee or lessee. Unless provided otherwise in a project participation agreement, at its sole discretion, the city may choose to deny said assignment, lease or transfer or may negotiate a new agreement with the new operator, or the city may reclaim the facility and enter into an agreement with a new qualifying entity.

(4) The qualifying entity seeking public support shall commit to operate in accordance with its project participation agreement for an agreed upon number of years from the date the ordinance adopting the project participation agreement is passed by the Governing Body.

(5) The Governing Body at a public hearing may terminate assistance to the Local Economic Development Act project by passage of an ordinance, which terminates the agreement and specifies the disposition of all assets and obligations of the project as set forth in the termination section.

(J) Approval by ordinance. Economic development projects and the corresponding project participation agreement shall be approved by ordinance, following application processing consistent with the provisions contained herein. Applications, and all relevant supporting documentation for economic development projects awaiting ordinance adoption, shall be made available for public inspection at the office of the City Clerk for at least the period from the date of publication of notice of the intent to adopt an ordinance approving the economic development project, through the date of the adoption of such ordinance.

(K) Project monies. All project monies shall be kept in separate accounts by the qualifying entity and the city, with such accounts clearly identified. These accounts shall be subject to an annual independent audit.

(L) Termination. The Governing Body may repeal the Local Economic Development Act plan ordinance and terminate the city’s community economic development plan and any or all project participation agreements undertaken under its authority. Termination shall be by ordinance at a public hearing or in accordance with the terms of the project participation agreement. If an ordinance or a project participation agreement is repealed or terminated, all contract provisions of the project participation agreement regarding termination shall be satisfied. Upon termination of the ordinance or any project participation agreement, any city monies remaining in city project accounts shall be transferred to the city’s general fund and/or the appropriate special fund.

(M) Joint or regional projects. The city may engage in Local Economic Development Act projects involving one or more other governmental entities for projects, which encompass more than one municipality or county. In such instances, a joint powers agreement or intergovernmental agreement may be adopted by the relevant governing bodies. This agreement may establish the application criteria and the terms of all project participation agreements. Criteria established under a joint powers agreement or intergovernmental agreement shall be consistent with the provisions of the Act and the LEDA plan of the city or local government entering into the project participation agreement (PPA) with the qualifying entity.

(Ord. 21-33)

PERMANENT FUND

36.120 SHORT TITLE.

This subchapter may be referred to as the “Permanent Fund Subchapter.”

(Ord. 22-23)

36.121 PURPOSE AND SCOPE.

The purpose of this subchapter is to set forth the general requirements for managing and administering the city’s permanent fund established in the Charter, Article 6.13.

(Ord. 22-23)

36.122 PERMANENT FUND ESTABLISHED.

A separate fund will be maintained within the city’s financial system into which an initial investment of $10,000,000 will be set aside as the fund’s initial principal amount, permanently restricted and accounted for apart from funds used for general purposes, other restricted governmental purposes, capital outlay, enterprises or debt service. Such fund will be a “permanent fund” as defined by governmental accounting standards, thus is restricted to the extent that only earnings (and not principal) may be used for purposes that support the city’s programs.

(Ord. 22-23)

36.123 DELEGATION OF AUTHORITY; INVESTMENT POLICY STATEMENT.

(A) Delegation of authority.

(1) Authority to manage the permanent fund is granted to the Treasurer, which is defined in Section 6.01 of the City Charter as the Director of the Department of Finance unless another person is designated by resolution. Any authority granted in state statute shall be secondary to lawfully enacted ordinances of the city. The Treasurer shall be responsible for all transactions undertaken and shall establish an investment policy statement to set the specific policy requirements and guidelines for the investment of the city’s permanent fund and a system of controls to regulate the activities of subordinate officials.

(2) No person may engage in an investment transaction except as provided under this subchapter, the investment policy statement and the procedures established by the Treasurer.

(3) The Governing Body has ultimate fiduciary responsibility for the investment of the city’s permanent fund.

(B) The investment policy statement shall, at a minimum, establish the following:

(1) Objectives for management of permanent fund investments;

(2) Permanent fund investment strategy considerations;

(3) Authority, responsibilities and duties for management of the permanent fund including but not limited to those of the Treasurer and Investment Advisory Board;

(4) A list of permissible investments for the permanent fund;

(5) Safekeeping requirements;

(6) Parameters for investment diversification;

(7) Requirements for delivery versus payment of investment trades;

(8) Investment collateralization requirements; and

(9) Requirements for reporting on the permanent fund.

(Ord. 22-23)

36.124 PRUDENCE REQUIRED.

The standard of prudence to be used by the city for managing the permanent fund is the Uniform Prudent Investor Act (UPIA) of 1992. Investment officers acting within the parameters of this subchapter and this permanent fund investment policy statement and exercising due diligence shall be relieved of personal liability for an individual security’s credit risk or market price changes, provided deviations from expectations are reported in a timely fashion so that appropriate actions can be taken to reduce risk in accordance with the terms of this subchapter.

(Ord. 22-23)

36.125 CONFLICTS OF INTEREST.

(A) Officials and employees involved in the investment process, including all members of the Investment Advisory Board, shall:

(1) Refrain from personal business activity that could conflict with the proper execution and management of the permanent fund’s investment activity or that could impair their ability to make impartial decisions;

(2) Disclose at the beginning of each fiscal year any material interests in financial institutions with which they conduct business;

(3) Disclose at the beginning of each fiscal year any personal, financial or investment positions that could be related to the performance of the permanent fund; and

(4) Refrain from undertaking personal investment transactions with the same individual with whom business is conducted on behalf of the city.

(Ord. 22-23)

36.126 DISTRIBUTIONS FROM THE PERMANENT FUND.

Each January beginning in January 2024, the Treasurer shall determine the fair value and interest and dividend earnings of the fund as of December 31st of the previous year. If the fair value plus interest and dividend earnings is higher than the prior year’s principal, a distribution of 50% of the amount above the prior year’s principal will be made to the general fund to be used for general purposes, as determined by the Governing Body. The remaining 50% of the amount above the prior year’s principal shall be retained in the permanent fund and, combined with the prior year’s principal, will become the new principal amount for future distributions. No distribution shall be made if the fair value plus interest and dividend earnings falls below the prior year’s principal amount. The Governing Body may, by resolution, direct the Treasurer to retain the annual distribution in the permanent fund to be added to the principal amount rather than distribute it to the general fund.

(Ord. 22-23)

36.127 ADDITION OF ONE-TIME REVENUE OR EXCESS RESERVES.

Nothing in this subchapter shall be construed to limit contribution of unrestricted one-time revenue or unrestricted excess reserves to the permanent fund. The Governing Body may, by resolution, add to the permanent fund principal amount. Such contributions shall be made in July of any year and added to the new principal for that year for purposes of determining future distributions.

(Ord. 22-23)

AFFORDABLE HOUSING ORDINANCE

36.130 SHORT TITLE. Revised 2/24

This article may be cited as the “Affordable Housing Ordinance.”

(Ord. 23-27)

36.131 PURPOSE. Revised 2/24

This article is adopted to implement the city’s affordable housing plan. In accordance with the New Mexico Constitution, Article IX, § 14, the Affordable Housing Act, NMSA 1978, § 6-27-1 et seq. and the rules adopted pursuant thereto, and MFA rules, the purpose of the affordable housing ordinance is to:

(A) Establish procedures to ensure that local housing assistance grantees are qualifying grantees who meet the requirements of the Act and the rules promulgated pursuant to the Act both at the time of the award and throughout the term of any grant or loan under the program;

(B) Establish an application and award timetable for local housing assistance grants or loans to permit the selection of the qualifying grantee(s);

(1) The financial and management stability of the applicant;

(2) The demonstrated commitment of the applicant to the community;

(3) A cost-benefit analysis of the project proposed by the applicant;

(4) The benefits to the community of a proposed project;

(5) The type or amount of assistance to be provided;

(6) The scope of the affordable housing project;

(7) Any substantive or matching contribution by the applicant to the proposed project;

(8) A performance schedule for the qualifying grantee with performance criteria; and

(9) Any other rules or procedures the city believes are necessary for a full review and evaluation of the applicant and the application or which the MFA believes is necessary for a full review of the city’s evaluation of the applicant;

(D) Require long-term affordability of the city’s affordable housing projects so that a project cannot be sold shortly after completion and taken out of the affordable housing market;

(E) Require that a grant or loan for a project must impose a contractual obligation on the qualifying grantee that the affordable housing units in any project be occupied by persons of low or moderate income as defined in this article;

(F) Provide for adequate security against the loss of public funds or property in the event that the qualifying grantee abandons or otherwise fails to complete the project;

(G) Require review and approval of a housing grant project budget by the city and/or the MFA before any expenditure of grant funds or transfer of granted property;

(H) Require that a condition of grant or loan approval be proof of compliance with all applicable state and local laws, rules and ordinances;

(I) Provide definitions for “low income” and “moderate income” and set out requirements for verification of income levels;

(J) Provide the city with a valid affordable housing program; and

(K) Require that the city enter into a contract with the qualifying grantee consistent with the Act, which contract shall include remedies and default provisions in the event of the unsatisfactory performance by the qualifying grantee and which contract shall be subject to the review of the MFA in its discretion.

(Ord. 23-27)

36.132 DEFINITIONS. Revised 2/24

The following words and terms shall have the following meanings:

ACT shall mean the Affordable Housing Act, NMSA 1978, § 6-27-1 et seq.

AFFORDABLE shall mean consistent with minimum rent and/or income limitations set forth in the MFA Act and in guidelines established by MFA.

AFFORDABLE HOUSING means residential housing primarily for persons or households of low or moderate income.

AFFORDABLE HOUSING FUNDS shall mean any or all funds awarded or to be awarded, loaned or otherwise distributed under the Act.

AFFORDABLE HOUSING PLAN or PLAN shall mean a plan pursuant to detailed research and analysis of the community and housing profile, including a review of land use and policy regarding land use, which produces a housing needs assessment for low and moderate income households in that locality.

AFFORDABLE HOUSING PROGRAM or PROGRAM shall mean any programs the city establishes pursuant to the Act.

AFFORDABLE HOUSING PROJECT or PROJECT shall mean any work or undertaking, whether new construction, acquisition of existing residential housing, remodeling, improvement, rehabilitation or conversion, which may be developed in one or more phases, as approved by the city and/or the MFA for the primary purposes as allowed by the Act.

AFFORDABILITY PERIOD shall mean:

(1) If the fair market value of any housing assistance grant or the total amount of affordable housing funds that have been awarded, loaned, donated, or otherwise conveyed to the qualifying grantee is from $1.00 to $14,999.99, then the affordability period shall be not less than five years.

(2) If the fair market value of any housing assistance grant or the total amount of affordable housing funds is from $15,000 up to and including $40,000, then the affordability period shall be not less than 10 years.

(3) If the fair market value of any housing assistance grant or the total amount of affordable housing funds is greater than $40,000 up to and including $100,000, then the affordability period shall be not less than 15 years.

(4) If the fair market value of any housing assistance grant or the total amount of affordable housing funds is greater than $100,000, then the affordability period shall be not less than 20 years.

APPLICANT shall mean an individual, a governmental housing agency, regional housing authority, a for-profit organization, including a corporation, limited liability company, partnership, joint venture, syndicate, or association or a nonprofit organization meeting the appropriate criteria set by the city and/or the MFA.

APPLICATION shall mean an application to participate in one or more affordable housing projects or programs under the Act submitted by an applicant to the city.

BUILDER shall mean an individual or entity licensed as a general contractor to construct residential housing in the state that satisfies the requirements of a qualifying grantee and has been approved by the city and/or the MFA to participate in an affordable housing program. The term “builder” shall also include an individual or entity that satisfies the requirements of a qualifying grantee and has been approved by the city and/or the MFA to participate in an affordable housing program, who is not licensed as a general contractor in the state, provided such individual or entity contracts with a general contractor licensed in the state to construct residential housing.

BUILDING shall mean a structure capable of being renovated or converted into affordable housing or a structure that is to be demolished and is located on land donated for use in connection with an affordable housing project.

CITY shall mean the City of Rio Rancho, New Mexico, a unit of local government under the constitution and laws of the State of New Mexico.

CONGREGATE HOUSING FACILITY shall mean residential housing designed for occupancy by more than four persons of low or moderate income living independently of each other. The facility may contain group dining, recreational, health care or other communal living facilities and each unit in a congregate housing facility shall contain at least its own living, sleeping, and bathing facilities.

FEDERAL GOVERNMENT shall mean the United States of America and any agency or instrumentality, corporate or otherwise, of the United States of America.

HOUSEHOLD shall mean one or more persons occupying a housing unit.

HOUSING ASSISTANCE GRANT means the donation, provision or payment by the city of:

(1) Land upon which affordable housing will be constructed; or

(2) An existing building that will be renovated, converted or demolished and reconstructed as affordable housing; or

(3) The costs of acquisition, development, construction, financing, and operating or owning affordable housing; or

(4) The costs of financing or infrastructure necessary to support affordable housing.

HUD shall mean the United States Department of Housing and Urban Development.

INFRASTRUCTURE shall mean infrastructure improvements and infrastructure purposes.

INFRASTRUCTURE IMPROVEMENT includes, but is not limited to:

(1) Sanitary sewage systems, including collection, transport, storage, treatment, dispersal, effluent use and discharge;

(2) Drainage and flood control systems, including collection, transport, diversion, storage, detention, retention, dispersal, use and discharge;

(3) Water systems for domestic purposes, including production, collection, storage, treatment, transport, delivery, connection and dispersal;

(4) Areas for motor vehicle use for road access, ingress, egress and parking;

(5) Trails and areas for pedestrian, equestrian, bicycle or other nonmotor vehicle use for access, ingress, egress and parking;

(6) Parks, recreational facilities and open space areas for the use of residents for entertainment, assembly and recreation;

(7) Landscaping, including earthworks, structures, plants, trees and related water delivery systems;

(8) Electrical transmission and distribution facilities;

(9) Natural gas distribution facilities;

(10) Lighting systems;

(11) Cable or other telecommunications lines and related equipment;

(12) Traffic control systems and devices, including signals, controls, markings and signs;

(13) Inspection, construction management and related costs in connection with the furnishing of the items listed in this subsection; and

(14) Heating, air conditioning and weatherization facilities, systems or services, and energy efficiency improvements that are affixed to real property.

INFRASTRUCTURE PURPOSE shall mean:

(1) Planning, design, engineering, construction, acquisition or installation of infrastructure, including the costs of applications, impact fees and other fees, permits and approvals related to the construction, acquisition or installation of the infrastructure, provided the city may determine it appropriate to reduce or waive building permit fees, sewer and water hook-up fees and other fees with respect to an affordable housing project for which affordable housing funds and/or housing assistance grants are awarded, loaned, donated or otherwise distributed under the Act;

(2) Acquiring, converting, renovating or improving existing facilities for infrastructure, including facilities owned, leased or installed by the owner;

(3) Acquiring interests in real property or water rights for infrastructure, including interests of the owner; and

(4) Incurring expenses incident to and reasonably necessary to carry out the purposes specified in this definition.

MFA shall mean the New Mexico Mortgage Finance Authority.

MFA ACT shall mean the Mortgage Finance Authority Act, enacted as Chapter 303 of the Laws of 1975 of the State of New Mexico, as amended (being Sections 58-18-1 through 58-18-27, inclusive, NMSA 1978, as amended).

MORTGAGE shall mean a mortgage, mortgage deed, deed of trust or other instrument creating a lien, subject only to title exceptions as may be acceptable to the city and/or the MFA, on a fee interest in real property located within the state or on a leasehold interest that has a remaining term at the time of computation that exceeds or is renewable at the option of the lessee until after the maturity day of the mortgage loan.

MORTGAGE LENDER shall mean any bank or trust company, mortgage company, mortgage banker, national banking association, savings bank, savings and loan association, credit union, building and loan association and any other lending institution; provided, that the mortgage lender maintains an office in the state, is authorized to make mortgage loans in the state and is approved by the city and/or the MFA and either the Federal Housing Authority, Veterans’ Affairs, Federal National Mortgage Association (now known as Fannie Mae), or Federal Home Loan Mortgage Corporation (now known as Freddie Mac).

MORTGAGE LOAN shall mean a financial obligation secured by a mortgage, including a mortgage loan for a project.

MULTIPLE-FAMILY HOUSING PROJECT shall mean residential housing that is designed for occupancy by more than four persons or families living independently of each other or living in a congregate housing facility, at least 60% of whom are persons of low or moderate income, including without limitation persons of low or moderate income who are elderly and handicapped as determined by the city and/or the MFA; provided, that the percentage of low-income persons and families shall be at least the minimum, if any, required by federal tax law.

MULTIFAMILY HOUSING PROGRAM shall mean a program involving a congregate housing facility, a multiple-family housing project or a transitional housing facility.

ORDINANCE shall mean this article, also cited as the “Affordable Housing Ordinance.”

PERSONS OF LOW OR MODERATE INCOME shall mean persons and families who are determined to lack sufficient income to pay enough to cause private enterprise to build an adequate supply of decent, safe and sanitary residential housing in the city and whose incomes are below the income levels established by the MFA and the plan to be in need of the assistance made available by the Act, taking into consideration, without limitation, such factors as defined under the Act. For purposes of this definition, the word “families” shall mean a group of persons consisting of, but not limited to, the head of a household; his or her spouse, if any; and children, if any, who are allowable as personal exemptions for federal income tax purposes. In accordance with the plan, persons of low and moderate income who are eligible for assistance in accordance with the plan are as follows:

(1) “Persons of low income” shall mean persons in households with annual gross incomes below 80% of area median income for city as approved and published each year by MFA and verified by the city.

(2) “Persons of moderate income” shall mean persons in households with annual gross incomes between 80% and 120% of area median income for city as approved and published each year by MFA and verified by the city.

(3) For purposes of this definition, “annual gross income” shall mean the annual anticipated income from assets, regular cash or noncash contributions, and any other resources and benefits determined to be income by HUD, as defined in 24 CFR Section 5.609.

POLICIES AND PROCEDURES shall mean policies and procedures of the MFA, including, but not limited to, mortgage loan purchasing, selling, servicing and reservation procedures, which the MFA may update and revise from time to time as the MFA deems appropriate.

PUBLIC SERVICE AGENCIES shall include, but is not limited to, any entities that support affordable housing and which believe that the program or project proposed by the applicant is worthy and advisable, but which are not involved, either directly or indirectly, in the affordable housing program or project for which the applicant is applying.

QUALIFYING GRANTEE means:

(1) An individual who is qualified to receive assistance pursuant to the Act and is approved by the city; and/or MFA.

(2) A governmental housing agency, regional housing authority, corporation, a limited liability company, partnership, joint venture, syndicate, association or a nonprofit organization that:

(a) Is organized under state or local laws and can provide proof of such organization;

(b) If a nonprofit organization has no part of its net earnings inuring to the benefit of any member, founder, contributor, or individual; and

RECERTIFICATION shall mean the recertification of applicants and/or qualifying grantees participating in any affordable housing programs or in any programs under the Act as determined necessary from time to time by the city and/or the MFA.

REHABILITATION shall mean the substantial renovation or reconstruction of an existing single-family residence or a multifamily housing project, which complies with requirements established by the MFA. “Rehabilitation” shall not include routine or ordinary repairs, improvements or maintenance, such as interior decorating, remodeling or exterior painting, except in conjunction with other substantial renovation or reconstruction.

RESIDENTIAL HOUSING shall mean any building, structure or portion thereof that is primarily occupied, or designed or intended primarily for occupancy, as a residence by one or more households and any real property that is offered for sale or lease for the construction or location thereon of such a building, structure or portion thereof. “Residential housing” includes congregate housing, manufactured homes and housing intended to provide or providing transitional or temporary housing for homeless persons.

RESIDENTIAL USE shall mean that the structure or the portion of the structure to benefit from the affordable housing funds or housing assistance grant is designed primarily for use as the principal residence of the occupant or occupants and shall exclude vacation or recreational homes.

RFP shall mean any request for proposals made by the city.

RULES shall mean the New Mexico Mortgage Finance Authority Affordable Housing Rules adopted pursuant to Section 6-27-8(B) NMSA 1978.

STATE shall mean the State of New Mexico.

TRANSITIONAL HOUSING FACILITY shall mean residential housing that is designed for temporary or transitional occupancy by persons of low or moderate income, or with special needs.

(Ord. 23-27)

36.133 GENERAL REQUIREMENTS. Revised 2/24

The following requirements shall apply to all housing assistance grants and/or affordable housing funds awarded, loaned or otherwise distributed by the city under the Act to a qualifying grantee:

(A) Request for proposals. The city, in its discretion, may issue one or more RFPs to solicit applications from applicants or shall otherwise identify a qualifying grantee for the use of any affordable housing funds or housing assistance grants to be awarded, loaned, donated or otherwise distributed under the Act.

(B) Applicant eligibility. The following applicants are eligible under the Act to apply for affordable housing funds or a housing assistance grant to provide housing or related services to persons of low or moderate income in the community:

(1) All individuals who are qualified to receive assistance pursuant to the Act, the rules, and this article that are approved by the city and/or MFA, as applicable;

(2) All regional housing authorities and any governmental housing agencies;

(3) All for-profit organizations, including any corporation, limited liability company, partnership, joint venture, syndicate or association;

(4) All nonprofit organizations meeting the following requirements:

(a) A primary mission of the nonprofit organization must be to provide housing or housing-related services to persons of low or moderate income;

(b) The nonprofit organization must have received its 501(c)(3) designation prior to submitting an application;

(5) All nonindividual applicants must:

(a) Be organized under state or local laws and can provide proof of such organization and be approved by the city;

(b) Have a functioning accounting system that is operated in accordance with generally accepted accounting principles (“GAAP”) or has designated an entity that will maintain such an accounting system consistent with GAAP;

(c) Have among its purposes significant activities related to providing housing or services to persons or households of low or moderate income; and

(d) Have no significant outstanding or unresolved monitoring findings from the city, the MFA, or its most recent independent financial audit, or, if it has any such findings, it has a certified letter from the city, the MFA, or auditor stating that the findings are in the process of being resolved.

(1) Process for applying. Applicants wishing to apply for a housing assistance grant, including the use of any affordable housing funds, or to participate in any affordable housing program are required to submit to the city the following (as applicable):

(a) One original application together with all required schedules, documents, or such other information which may be required by the city or in any RFP which may have been issued by the city;

(b) A proposal describing the nature and scope of the affordable housing project proposed by the applicant and for which the applicant is applying for funds or a grant under the Act, and which documents the need for the requested funds or grant, describes the type and/or amount of assistance which the applicant proposes to provide to persons of low or moderate income and documents the consistency of the proposal with the city’s affordable housing plan;

(c) Executive summary and project narrative(s) that address(es) the evaluation criteria set forth in any RFP issued by the city for the affordable housing funds or the housing assistance grant for which the applicant is applying;

(d) A proposed budget for the affordable housing project for which the applicant is applying for affordable housing funds or for a housing assistance grant;

(e) A copy of its most recent independent financial audit;

(f) If the applicant is a nonprofit organization:

1. Proof of 501(c)(3) tax status;

2. Documentation that confirms that no part of its net earnings inures to the benefit of any member, founder, contributor or individual;

(g) If an applicant is a legal entity, including a nonprofit organization:

1. A current annual budget for the applicant, including all sources and uses of funds not just those related to relevant programs and/or a current annual budget only for the program for which the applicant is applying for a housing assistance grant, or as otherwise may be required by the city and/or the MFA in its discretion;

2. An approved mission statement that the applicant has among its purposes significant activities related to providing housing or housing-related services to persons or households of low or moderate income;

3. A list of members of the applicant’s current board of directors or other governing body, including designated homeless participation, where required by the city;

4. Evidence (or a certification as may be allowed by the city) that the applicant has a functioning accounting system that is operated in accordance with GAAP or has a designated entity that will maintain such an accounting system consistent with GAAP;

5. Evidence that the applicant has no significant outstanding or unresolved monitoring findings from the city, the MFA, or its most recent independent financial audit; or if it has any significant outstanding or unresolved monitoring findings from the city, the MFA or its most recent independent financial audit, it has a certified letter from the city, the MFA or the auditor stating that the findings are in the process of being resolved;

6. An organizational chart, including job titles and qualifications for the applicant’s employees or as otherwise may be required by the city and/or the MFA in its discretion. Job descriptions may be submitted as appropriate;

7. Documentation that the applicant is duly organized under state or local law and certification that the applicant is in good standing with any state authorities, including the Public Regulation Commission and the Secretary of State;

(h) Information as may be required by the city and/or the MFA in order for it to determine the financial and management stability of the applicant;

(i) Information as may be required by the city and/or the MFA in order for it to determine the demonstrated commitment of the applicant to the community;

(j) A completed cost-benefit analysis of the affordable housing project proposed by the applicant. Any cost-benefit analysis must include documentation that clearly evidences that there is a need for the housing assistance grant being requested from the city, that there is or will be a direct benefit from the project proposed by the applicant to the community and/or to the purported beneficiaries of the project, consistent with the provisions of the Act, and that the affordable housing project will meet the needs and affordability criteria defined in the city’s affordable housing plan;

(k) Information supporting the benefits to the community of the affordable housing project proposed by the applicant;

(l) Proof of substantive or matching funds or contributions and/or in-kind donations to the proposed affordable housing project in connection with the application for funds under the Act. Nothing contained herein shall prevent or preclude an applicant from matching or using local, private, or federal funds in connection with a specific housing assistance grant or a grant of affordable housing funds under the Act;

(m) Any certifications or other proof which the city may require in order for the city to confirm that the applicant is in compliance with all applicable federal, state and local laws, rules and ordinances;

(n) A verification signed by the applicant before a notary public that the information provided, upon penalty of perjury, is true and correct to the best of the applicant’s information, knowledge and belief;

(o) Certifications as may be required by the city and signed by the chief executive officer, board president, or another authorized official of the applicant;

(p) Applicant shall submit adequate information, as required by the city and/or MFA, of the affordable housing project proposed by the applicant. The information provided must clearly evidence the need for the subsidy, that the value of the housing assistance grant reduces the housing costs to persons of low or moderate income, and that there will be a direct benefit from the project proposed by the applicant to the community and/or to the purported beneficiaries of the project, consistent with the provisions of the Act, the rules, and this article.

(2) Additional requirements for multifamily housing projects applicants who are submitting applications in connection with a multifamily housing program. The applicant must also submit to the city following additional information:

(a) A verified certificate that, among other things:

1. Identifies every multifamily housing program, including every assisted or insured project of HUD, RHS, FHA and any other state or local government housing finance agency in which such applicant has been or is a principal;

2. States that, except as shown on such certificate:

a. No mortgage on a project listed on such certificate has ever been in default, assigned to the federal government or foreclosed, nor has any mortgage relief by the mortgagee been given;

b. There has not been a suspension or termination of payments under any HUD assistance contract in which the applicant has had a legal or beneficial interest;

c. Such applicant has not been suspended, debarred or otherwise restricted by any department or agency of the federal government or any state government from doing business with such department or agency because of misconduct or alleged misconduct; and

d. The applicant has not defaulted on an obligation covered by a surety or performance bond.

If such applicant cannot certify to each of the above, such applicant shall submit a signed statement to explain the facts and circumstances that such applicant believes will explain the lack of certification. The city may then determine if such applicant is or is not qualified.

(b) The experience of the applicant in developing, financing and managing multiple-family housing projects; and

(c) Whether the applicant has been found by the United States Equal Employment Opportunity Commission or the New Mexico Human Rights Commission to be in noncompliance with any applicable civil rights laws.

(3) Additional requirements for mortgage lenders. If the applicant is a mortgage lender, the city shall consider, among other things:

(a) The financial condition of the applicant;

(b) The terms and conditions of any loans to be made;

(c) The aggregate principal balances of any loans to be made to each applicant compared with the aggregate principal balances of the loans to be made to all other applicants;

(d) The city’s assessment of the ability of the applicant or its designated servicer to act as originator and servicer of mortgage loans for any multifamily housing programs or other programs to be financed; and

(e) Previous participation by the applicant in the programs administered by the MFA, HUD, Federal Housing Authority or Rural Housing Service programs.

(4) Submission procedure.

(a) Time, place and method of submission delivery.

1. If the city has issued an RFP, all applications must be received by the city no later than the deadline set forth in the RFP; otherwise, all applications must be received by the city by the deadline the city has established in connection with the respective award or grant. So that any qualifying grantees may be selected prior to January of the year in which any housing assistance grant would be made, the city shall issue any RFPs, solicit any applications, or otherwise identify any qualifying grantees no later than October 15th of any year in order to allow sufficient time for prospective applicants to respond to any such RFP, solicitation, or otherwise, and further to allow the MFA not less than 45 days in which to review any such applications or otherwise determine or confirm that an applicant is a qualifying grantee under the Act and consistent with the rules.

2. Applications shall be submitted by applicants to the city in the form required by the city and shall contain all information which is required by this article and any RFP which may have been issued.

(b) Additional factors.

1. Timely completion and submission to the city of an application or other appropriate response to any solicitation by the city;

2. Timely submission of all other information and documentation related to the program required by the city as set forth in this article or as set forth in the rules;

3. Timely payment of any fees required to be paid to the city at the time of submission of the application; and

4. Compliance with program eligibility requirements as set forth in the Act, the rules and this article.

1. City forms or MFA forms (if available) must be used when provided and no substitutions will be accepted; however, attachments may be provided as necessary.

2. An applicant’s failure to provide or complete any element of an application, including all requirements of the city or as may be listed on any RFP, may result in the rejection of the application prior to review.

3. Illegible information, information inconsistent with other information provided in the application, and/or incomplete forms will be treated as missing information and evaluated accordingly.

4. City and the MFA reserve the right to request further information from any applicant so long as the request is done fairly and does not provide any applicant an undue advantage over another applicant.

5. The city in its discretion may cancel any RFP or reject any or all proposals in whole or part submitted by any applicant.

6. The applicant shall be responsible for any expenses incurred in preparing and submitting an application. The city or the MFA, as applicable, may establish and collect fees from applicants who file applications. Notice that fees will be charged and the amount of any such fees shall be included by the city or the MFA, as applicable, in any RFP or otherwise shall be advertised as part of the application solicitation process.

(5) Review by the city. On receipt of an application, the city shall:

(a) Determine whether the application submitted by the applicant is complete and responsive;

(b) Determine whether the applicant is a qualifying grantee as defined herein and in the Act;

(c) Review and analyze whether the applicant has shown a demonstrated need for activities to promote and provide affordable housing and related services to persons of low or moderate income and that the proposal is consistent with the city’s adopted affordable housing plan;

(d) Determine whether the applicant has demonstrated experience related to providing housing or services to persons of low or moderate income, as well as experience and/or the capacity of the applicant to administer the affordable housing program or project for which the applicant has applied;

(e) Determine whether the applicant’s proposal provides a plan for coordinating with other service providers in the community; whether the applicant’s proposal addresses how persons of low income or moderate income in need of housing and/or housing-related services can receive supportive services and referrals to federal, state and local resources; and whether the applicant’s proposal addresses outreach efforts to reach the population to be served as identified by the city in any RFP, in the affordable housing plan or otherwise;

(f) Determine whether the applicant has support from public service agencies, or such other support as may be required by the city and/or the MFA in its discretion, for its proposed services in the community;

(g) Ascertain the amount of any matching funds or in-kind services specific to the program that may be utilized by the applicant in connection with the program;

(h) Ascertain whether any local, private, or federal funds will be used by the applicant in connection with the specific grant for which the applicant is applying;

(i) Ascertain whether the applicant has and can demonstrate the capability to manage the implementation of the program for which the applicant is applying;

(j) If applicant is a prior recipient of either a housing assistance grant, affordable housing funds and/or other program funds, confirm that the applicant had no outstanding findings or matters of noncompliance with program requirements from the city or the MFA, as applicable, or, if it has any such findings, it has a certified letter from the city, the MFA, or auditor stating that the findings are in the process of being resolved;

(k) If applicant is a prior recipient of either a housing assistance grant, affordable housing funds and/or other program funds, confirm that the applicant reasonably committed and expended the funds under the prior program and/or met anticipated production levels as set forth in any contract with the city or the MFA, as applicable, for those prior program funds;

(l) Evaluate the applicant’s proposal in part based upon the applicant’s current financial audit;

(m) Evaluate the applicant’s proposed budget for the project for which the applicant is applying for affordable housing funds or a housing assistance grant, which proposed budget must be approved by the city before the applicant can be approved as a qualifying grantee and any expenditure of grant funds under the Act or granted property is transferred to the applicant;

(n) On receipt of an application from a builder, the city will analyze the builder’s ability to construct and sell sufficient residential housing units to persons of low or moderate income within the time or times as may be required by the city.

(o) Consider other factors it deems appropriate to ensure a reasonable geographic allocation for all affordable housing programs.

(6) Certification by the city to the MFA. The city shall certify an application to the MFA in writing upon:

(a) Completion of its review of the application;

(b) Determination that the application is complete;

(d) Determination that the applicant is a qualifying grantee.

(7) Discretionary review by the MFA for completeness. The MFA upon its receipt of the certification from the city may, in its discretion, review the application and any of the materials submitted by the applicant to the city. The MFA may also request any additional information from the applicant, which it may require in order to determine whether the applicant is a qualifying grantee under the Act and the application is complete. The MFA will then notify the city of its determination of whether or not the application is complete and that the requirements of the Act and the rules have been satisfied and the applicant is a qualifying grantee. Unless the period is extended for good cause shown, the MFA shall act on an application within 45 days of its receipt of any application which the MFA deems to be complete, and, if not acted upon by the MFA, the application shall be deemed to be approved.

(8) Notification of acceptance. The city, upon completion of its review of the application and an evaluation of the criteria for approval of the application as set forth in this article and in any RFP issued by the city and upon its determination that the applicant is a qualifying grantee, and upon its receipt of notification from the MFA that it agrees that the application is complete and that the Act and rules have been satisfied and the applicant is a qualifying grantee, by written notice, shall notify each applicant which has submitted an application of the approval or disapproval of its application. Upon approval of its application, the applicant shall be considered approved to participate in the affordable housing program. The city’s and the MFA’s determination of any application shall be conclusive.

(D) Additional requirements. Upon acceptance, the following additional requirements shall apply to any applicant who is a qualifying grantee:

(1) Contractual requirements. The qualifying grantee shall enter into one or more contracts with the city, which contract(s) shall be consistent with the Act and subject to the review of the MFA, in its discretion, and which contract(s) shall include remedies and default provisions in the event of the unsatisfactory performance by the qualifying grantee.

(2) Security provisions; collateral requirements. In accordance with the Act, the rules and this article, the city shall require the qualifying grantee to execute documents, which will provide adequate security against the loss of public funds or property in the event the qualifying grantee abandons or fails to complete the affordable housing project, and which shall further provide, as may be permitted by law, for the recovery of any attorneys’ fees and costs which the city and/or the MFA may incur in enforcing the provisions of this article, the rules, the Act and/or any agreement entered into by the city and the qualifying grantee, and which documents may include, but are not limited to, the following: note, mortgage, loan agreement, land use restriction agreement, restrictive covenant agreements and/or any other agreement which the city may require in order to allow for any funds which the qualifying grantee may receive under a housing assistance grant or affordable housing funds to be adequately secured and to allow the city and the MFA to ensure that such funds shall be used by the qualifying grantee in accordance with the Act, the rules and this article.

(3) Performance schedule and criteria. The qualifying grantee shall be required to abide by a reasonable performance schedule and performance criteria that the city, in its discretion, may establish.

(4) Examination of books and records. The qualifying grantee shall submit to and the city shall cause to be made such examinations of the books and records of each qualifying grantee as the city and/or the MFA deems necessary or appropriate to determine the qualifying grantee’s compliance with the terms of the Act, the rules, this article and any contracts between the qualifying grantee and the city. The city and/or the MFA may require each qualifying grantee to pay the costs of any such examination.

(5) Infrastructure cost reimbursement contracts.

(a) Cost reimbursements. Payment to a qualifying grantee under cost reimbursable contract provisions shall be made upon the city’s receipt from the qualifying grantee of certified and documented invoices for actual expenditures allowable under the terms of any agreement between the qualifying grantee and the city.

(b) Cost reimbursements for units of service. Payment under any unit cost contract provisions shall be made upon the city’s receipt from the qualifying grantee of a certified and documented invoice showing the number of units of service provided during the billing period.

(c) Rate at which costs incurred. Under unit cost or cost reimbursable contracts, it is anticipated that costs will be incurred by the qualifying grantee at an approximate level rate during the term of any agreement between the qualifying grantee and the city. If the city determines that the qualifying grantee is underspending or overspending, then the city may reduce the budget and/or exercise such other budgetary fiscal controls it deems appropriate.

(d) Invoices. Qualifying grantees shall not submit invoices more than once a month, unless written approval is obtained in advance from the city. Failure to submit invoices within 20 calendar days of the close of the month for which payment is sought may result in the nonavailability of funds for reimbursement.

(e) No dual application of costs. The qualifying grantee shall certify that any direct or indirect costs claimed by the qualifying grantee will not be allocable to or included as a cost of any other program, project, contract, or activity operated by the qualifying grantee and which has not been approved by the city in advance, in writing.

(f) Prohibition of substitution of funds. Any affordable housing funds or other amounts received by qualifying grantee may not be used by qualifying grantee to replace other amounts made available or designated by the state or local governments through appropriations for use for the purposes of the Act.

(g) Cost allocation. The qualifying grantee shall clearly identify and distribute all costs incurred pertaining to the affordable housing project by a methodology and cost allocation plan at times and in a manner prescribed by, or acceptable to, the city.

(h) Additional information. Qualifying grantees shall provide the city with any and all information which the city may reasonably require in order for it to confirm that the qualifying grantees continue to satisfy the requirements of the Act, the rules and this article throughout the term of any contract and/or any affordability period or otherwise as may be required by the city or the MFA in its discretion. At a minimum, on an annual basis, the city shall certify to the MFA in writing that to the best of its knowledge the qualifying grantee is in compliance with applicable provisions of the Act, the rules and this article.

(E) Affordable housing requirements. All affordable housing funds or housing assistance grants awarded under the Act are to be used by qualifying grantees for the benefit of persons of low or moderate income subject to the provisions of the Act and with particular regard to their housing-related needs.

(1) Single-family property.

(a) Qualifying grantees shall agree that they shall maintain any single-family property which has been acquired, rehabilitated, weatherized, converted, leased, repaired, constructed, or which property has otherwise benefited from affordable housing funds, including but not limited to any loans which have been repaid with affordable housing funds and which loans previously were secured by such properties, as affordable housing for so long as any or all of the affordable housing funds which have been awarded, loaned, or otherwise conveyed to the qualifying grantee are unpaid and outstanding or the affordability period, whichever is longer.

(b) If any single-family properties are to be rehabilitated, weatherized, converted, leased, repaired, constructed or otherwise are to benefit from affordable housing funds, and if the qualifying grantee intends to rent the single-family property out, those single-family properties shall be leased to persons of low or moderate income at the time of any such award. Grantees also shall agree that the persons of low or moderate income who are tenants of those apartments shall be allowed to remain tenants for so long as there are no uncured defaults by those tenants under their respective leases which must be compliant to the New Mexico Uniform Owner-Resident Relations Act (Sections 47-8-1 through 47-8-52 NMSA 1978); and provided, that there is no just cause, as outlined in Section 47-8-33 NMSA 1978, for the landlord to terminate any lease agreement with those tenants.

(2) Multifamily property.

(a) Single apartment within a multifamily property. Qualifying grantees shall agree that, if any single apartments are to be rehabilitated, weatherized, converted, leased, repaired, constructed or otherwise are to benefit from affordable housing funds, those apartments shall be leased to persons of low or moderate income at the time of any such award. Qualifying grantees, who are the landlords and/or owners of such properties, shall further agree to contribute at least 60% of the cost of the rehabilitation, weatherization, conversion, lease, repair, and/or construction. Qualifying grantees also shall agree that the persons of low or moderate income, who are tenants of those apartments, shall be allowed to remain tenants for so long as there are no uncured defaults by those tenants under their respective leases, which must be compliant to the New Mexico Uniform Owner-Resident Relations Act, Sections 47-8-1 through 47-8-52 NMSA 1978; and provided, that there is no just cause, as outlined in Section 47-8-33 NMSA 1978, for the landlord to terminate any lease agreement with those tenants.

(b) Multiple apartments. Qualifying grantees shall agree that, if multiple apartments or an entire multifamily property are to be acquired, rehabilitated, weatherized, converted, leased, repaired, constructed or otherwise are to benefit from affordable housing funds, including but not limited to any loans which have been repaid with affordable housing funds and which loans previously were secured by such properties, they shall maintain not less than 60% of the housing units as affordable housing for so long as any or all of the affordable housing funds which have been awarded, loaned, or otherwise conveyed to the qualifying grantee are unpaid and outstanding or the affordability period, whichever is longer.

(3) Nonresidential property. Qualifying grantees shall agree that they shall maintain any nonresidential property which has been acquired, rehabilitated, weatherized, converted, leased, repaired, constructed, or which property has otherwise benefitted from affordable housing funds, including but not limited to any loans which have been repaid with affordable housing funds and which loans previously were secured by such properties, as a facility which provides housing-related services to persons of low or moderate income for so long as any or all of the affordable housing funds which have been awarded, loaned, or otherwise conveyed to the qualifying grantee are unpaid and outstanding or the affordability period, whichever is longer.

(4) Housing assistance grant affordability requirements. Qualifying grantees shall agree that they shall maintain any land or buildings received as a housing assistance grant as either single-family or multifamily affordable housing in accordance with subsections (E)(1) and (2) of this section or as a facility which provides housing-related services to persons of low or moderate income in accordance with subsection (E)(3) of this section (as applicable) for the duration of the affordability period. Qualifying grantees shall agree that they shall maintain any land or buildings for which they have received the costs of infrastructure as a housing assistance grant as either single-family or multifamily affordable housing or as a facility which provides housing-related services to persons of low or moderate income (as applicable) for the duration of the affordability period. In calculating the affordability period for housing assistance grants of either land or buildings, the fair market value of the land or buildings or the costs of infrastructure at the time of the donation by the city shall apply.

(5) Affordability period. The city, in its discretion, may increase the affordability period in any contract, note, mortgage, loan agreement, land use restriction agreement, restrictive covenant agreements and/or any other agreement which the city may enter into with any qualifying grantee or beneficiary of the affordable housing funds or of the housing assistance grant. (See definition of “affordability period” in Section 36.132.) Notwithstanding the foregoing, in the discretion of the MFA, weatherization funds conveyed from the state to the MFA and/or any other similar conveyances where an affordability period is not practical shall not be subject to the affordability period requirements of this subsection; but nevertheless, any such conveyances may be subject to recapture on some prorated basis as determined by the city and/or the MFA.

(F) Consent to jurisdiction. Each qualifying grantee shall consent to the jurisdiction of the courts of the state over any proceeding to enforce compliance with the terms of the Act, the rules and this article and any agreement between the qualifying grantee and the city and/or the MFA.

(G) Recertification procedures.

(1) The qualifying grantee must meet the requirements of the Act, the rules and this article both at the time of any award and throughout the term of any grant and contract related thereto.

(2) The city may establish procedures for recertifying qualifying grantees from time to time.

(3) Qualifying grantees that fail to satisfy the requirements for recertification shall cease to be eligible and shall be denied further participation in affordable housing programs until the requirements of the city and the MFA are satisfied.

(H) Compliance with the law. Qualifying grantee shall provide the city with any certifications or other proof that it may require in order for the city and the MFA to confirm that the qualifying grantee and the qualifying grantee’s proposed project are in compliance with all applicable federal, state and local laws, rules and ordinances. At a minimum, on an annual basis, the qualifying grantee shall provide the city with certifications and proof of compliance, and the city shall certify to the MFA in writing that the qualifying grantee is still in compliance with the Act and the rules.

(I) Extension of affordable housing programs. The MFA shall have the power to create variations or extensions of affordable housing programs, or additional programs that comply with the Act and the rules.

(J) City grant requirements.

(1) The city is authorized to make housing assistance grants under the Act. Upon determination that the city will make a housing assistance grant, including the use of any affordable housing funds, the city shall provide the MFA with the following:

(a) Documentation that confirms that the city has an existing valid affordable housing plan;

(b) Documentation that confirms that the city has an existing valid affordable housing ordinance which provides for the authorization of the housing assistance grant, including the use of any affordable housing funds;

(c) Written certification that the proposed grantee is in compliance with Act and the rules so that the MFA may confirm that the application is complete, and that the proposed grantee is a qualifying grantee under the Act and the rules.

(2) Prior to the submission of the application and project authorization to the Governing Body, the Governing Body must approve the budget submitted by the applicant.

(3) An action authorizing the city to make a housing assistance grant and/or distribute affordable housing funds:

(a) Must authorize the grant, including use of affordable housing funds, if any;

(b) Must state the requirements and purpose of the grant;

(c) Must authorize the transfer or disbursement to the qualifying grantee only after a budget is submitted to and approved by the Governing Body;

(d) Must comply with the rules, as amended; and

(e) May provide for matching or using local, private or federal funds either through direct participation with a federal agency pursuant to federal law or through indirect participation through the MFA.

(4) The MFA shall act to approve the proposed housing assistance grant authorized by the city within 45 days of its receipt of the documentation required in subsections (J)(1) through (3) of this section.

(5) The city, in its discretion, may also hold any award of affordable housing funds or any housing assistance grant made by the city in suspense pending the issuance by the city of any RFP or pending the award of the affordable housing funds or of the housing assistance grant by the city to the qualifying grantee without the issuance of an RFP by the city. Any award of affordable housing funds or a housing assistance grant by the city shall subject the qualifying grantee of the award or grant to the oversight of the city and the MFA under this article and the rules.

(K) School district and public post-secondary educational institution donations for housing projects. If a school district or a public post-secondary education institution intends to transfer land to the city to be further granted to a qualifying grantee as part or all of an affordable housing project, this transfer shall be subject to the limitations contained in the Act that the school district and the city enter into a contract that provides the school district with a negotiated number of affordable housing units that will be reserved for employees of the school district. Any transfer of land by a public post-secondary educational institution shall be subject to the additional limitations contained in the Act that:

(1) The property transferred shall be granted to a qualifying grantee by the city as part of a grant for an affordable housing project; and

(2) The governing board of the public post-secondary educational institution and the city enter into a contract that provides the public post-secondary educational institution with affordable housing units.

As used in this section, “public post-secondary educational institution” means a state university or a public community college. The city, in its discretion, may also hold any housing assistance grant made by any school district or public post-secondary educational institution in suspense pending the issuance by the city of any RFP or pending the award of the housing assistance grant by the city to the qualifying grantee without the issuance of an RFP by the city. Any award of a housing assistance grant by a school district or a public post-secondary educational institution shall subject the qualifying grantee of the grant to the oversight of the city and the MFA under the rules.

(Ord. 23-27)

36.134 DISCRIMINATION PROHIBITED. Revised 2/24

The development, construction, occupancy and operation of an affordable housing program or an affordable housing project financed or assisted under the Act shall be undertaken in a manner consistent with principles of nondiscrimination and equal opportunity, and the city shall require compliance by all qualifying grantees with all applicable federal and state laws and regulations.

(Ord. 23-27)

36.135 ADMINISTRATION. Revised 2/24

The city shall administer any affordable housing programs in accordance with provisions of the Act, the rules, this article, any applicable state and federal laws and regulations as each of which may be amended or supplemented from time to time. The city, in establishing, funding and administering the affordable housing programs and by making, executing, delivering and performing any award, contract, grant or any other activity or transaction contemplated by the Act, shall not violate any provision of law, rule or regulation or any decree, writ, order, injunction, judgment, determination or award and will not contravene the provisions of or otherwise cause a default under any of its agreements, indentures, or other instruments to which it may be bound. Any proposed amendment to this article shall be submitted to MFA for review prior to adoption by the Governing Body.

(Ord. 23-27)