TITLE
2 PUBLIC FINANCE
CHAPTER
91 GRANTS
PART
2 REVIEW
AND SELECTION OF COLONIAS INFRASTRUCTURE PROJECTS
2.91.2.1 ISSUING AGENCY: New Mexico Colonias
Infrastructure Board.
[2.91.2.1 NMAC – N, 2/15/2012]
2.91.2.2 SCOPE: All persons or entities applying
for financial assistance under the colonias infrastructure project fund
administered by the New Mexico finance authority, Section 6-30-6 NMSA 1978, and
Section 6-30-8 NMSA 1978.
[2.91.2.2 NMAC – N, 2/15/2012]
2.91.2.3 STATUTORY AUTHORITY: Section 6-30-6 NMSA
1978, and Section 6-30-8 NMSA 1978.
[2.91.2.3 NMAC – N, 2/15/2012]
2.91.2.4 DURATION: Permanent.
[2.91.2.4 NMAC – N, 2/15/2012]
2.91.2.5 EFFECTIVE DATE: February 15, 2012,
unless a later date is cited at the end of a section.
[2.91.2.5 NMAC – N, 2/15/2012]
2.91.2.6 OBJECTIVE:
A. Section
6-30-5, NMSA 1978 provides that the New Mexico colonias infrastructure board is
required to adopt rules governing the acceptance, evaluation and prioritization
of applications by qualified entities for financial assistance from the
colonias infrastructure project fund; authorizes the board to prioritize the
qualified projects for financial assistance; and authorizes the board to
recommend the prioritized qualified projects to the New Mexico finance
authority for financial assistance.
B. Section
6-30-3, NMSA 1978, provides that a qualified project eligible for consideration
for financial assistance by the board shall be a capital outlay project which
may include a water system, a wastewater system, solid waste disposal
facilities, flood and drainage control, roads or housing infrastructure, but
does not include general operation and maintenance, equipment, housing
allowance payments or mortgage subsidies. The purpose of these rules is to set
forth the intent of the board and to outline, in general terms, the criteria
and procedures to be used in evaluating, prioritizing and funding qualified
projects from the colonias infrastructure project fund.
C. Section
6-30-6, NMSA 1978, provides that the authority shall provide staff support for
the colonias infrastructure board; administer the colonias infrastructure
project fund; at the direction of the board, process, review and evaluate
applications for financial assistance received from qualified entities; and at
the direction of the board, administer qualified projects that receive
financial assistance.
D. Section
6-30-8, NMSA 1978, provides that the authority may adopt separate procedures
and rules to administer the colonias infrastructure project fund, originate
grants or loans for qualified projects recommended by the board; recover from
the colonias infrastructure project fund the costs of administering the fund
and originating the grants and loans; and govern the process through which
qualified entities may apply for financial assistance from the colonias
infrastructure project fund.
[2.91.2.6 NMAC – N, 2/15/2012]
2.91.2.7 DEFINITIONS:
A. “Act” means the Colonias Infrastructure
Act, Sections 6-30-1 through 6-30-8, NMSA 1978, as the same may be amended and
supplemented.
B. “Agreement” means the document or
documents signed by the board and a qualified entity which specify the terms
and conditions of obtaining financial assistance from the colonias
infrastructure project fund.
C. “Applicant” means a qualified entity
which has filed a colonias infrastructure project proposal with the authority
for initial review and referral to the board, or to the board’s project review
committee.
D. “Authority” means the New Mexico
finance authority.
E. “Authorized representative” means one
or more individuals duly authorized to act on behalf of the qualified entity in
connection with its financial application, colonias infrastructure project
proposal or agreement.
F. “Board” means the New Mexico colonias
infrastructure board created by the act.
G. “Bylaws” means the bylaws of the board
adopted on October 7, 2011, as amended and supplemented from time to time.
H. “Colonia” means a rural community with
a population of 25,000 persons or less located within 150 miles of the United
States-Mexico border that (1) has been designated as a colonia by the
municipality or county in which it is located because of a lack of potable water
supply, a lack of adequate sewage systems, or a lack of decent, safe and
sanitary housing; (2) has been in existence as a colonia prior to November
1990; and (3) has submitted appropriate documentation to the board to
substantiate the conditions under (1) and (2) of this definition.
I. “Colonias infrastructure project account”
means a fund designated by a qualified entity exclusively for receipt of
financial assistance for a qualified project.
J. “Colonias infrastructure project fund”
means the fund of that name created in the authority by Section 6-30-8, NMSA
1978.
K. “Colonias infrastructure project proposal”
means a written project proposal submitted by a qualified entity for review by
the project review committee and consideration by the board.
L. “Colonias infrastructure trust fund”
means the fund of that name created in the state treasury by Section 6-30-7,
NMSA 1978.
M. “Financial application” means a written
document filed with the authority by an applicant for the purpose of evaluating
the applicant’s qualifications and proposed project or projects for types of
financial assistance which may be provided by the board under the act.
N. “Financial assistance” means loans,
grants and any other type of assistance authorized by the act, or a combination
thereof, provided from the colonias infrastructure project fund to a qualified
entity for the financing of a qualified project.
O. “Political subdivision of the state”
means a municipality, a county, a water and sanitation district, an association
organized and existing pursuant to the Sanitary Projects Act, Chapter 3,
Article 29 NMSA 1978, or any other entity recognized by statute as a political
subdivision of the state.
P. “Project review committee” means a
standing committee, appointed by the chairman of the board from the members of
the board pursuant to the bylaws to review proposed colonias infrastructure
projects to be recommended for funding from the colonias infrastructure project
fund.
Q. “Qualified entity” means a county,
municipality or other entity recognized as a political subdivision of the
state.
R. “Qualified project” means a capital
outlay project selected by the board for financial assistance that is primarily
intended to develop colonias infrastructure, and may include a water system, a
wastewater system, solid waste disposal facilities, flood and drainage control,
roads or housing infrastructure, but does not include general operation and
maintenance, equipment, housing allowance payments or mortgage subsidies.
S. “State” means the state of New Mexico.
[2.91.2.7 NMAC – N, 2/15/2012]
2.91.2.8 ELIGIBILITY: PRIORITIZATION OF COLONIAS
INFRASTRUCTURE PROJECTS: The board will develop and consider a variety of
factors in reviewing and evaluating colonias infrastructure project proposals
to determine which colonias infrastructure projects to recommend to the
authority as qualified projects for financial assistance from the colonias
infrastructure project fund. The board shall give priority to projects that
have urgent needs that ensure adequate financial resources for infrastructure
development for colonia recognized communities, that provide for the planning
and development of infrastructure in an efficient and cost-effective manner,
and that develop infrastructure projects to improve quality of life and
encourage economic development. The board shall seek to identify opportunities
to leverage federal and other funding. The board shall establish policies for
prioritization of colonias infrastructure projects.
[2.91.2.8 NMAC – N, 2/15/2012]
2.91.2.9 COLONIAS INFRASTRUCTURE PROJECT PROPOSAL,
REVIEW, PRIORITIZATION AND APPROVAL PROCESS:
A. The
board and the authority will administer an outreach program to notify qualified
entities that colonias infrastructure project proposals are being accepted to
identify colonias infrastructure projects for review by the project review
committee and the board for prioritization and recommendation for funding to
the authority as qualified projects.
B. The
authority will provide forms and guidelines for colonias infrastructure project
proposals and applications for financial assistance.
C. The
authority staff will complete an initial evaluation of the application for
financial assistance and colonias infrastructure project proposals promptly
following receipt. Such evaluation will include, to the extent applicable, an
evaluation of colonias infrastructure project feasibility, administrative
capacity of the qualified entity, financial position, debt management and
economic and demographic factors. The authority may rely upon the advice of an
interdisciplinary team in evaluating colonias infrastructure project proposals
and applications for financial assistance.
D. The
authority staff will forward all completed colonias infrastructure project
proposals and the initial evaluation of applications for financial assistance
and colonias infrastructure project proposals to the project review
committee. The project review committee
will consider the proposed colonias infrastructure project and may confer with
outside parties, including any local interdisciplinary teams familiar with the
proposed colonias infrastructure project, as necessary to obtain more
information on the feasibility, merit, and cost of the proposed colonias
infrastructure project. The project
review committee will make a recommendation to the board on each colonias infrastructure
project proposal.
E. Upon
the recommendation of the project review committee, the board will prioritize
the proposed colonias infrastructure projects for recommendation to the
authority for funding.
F. After
completion of the review process by the project review committee and the board
and receipt of a favorable recommendation on the colonias infrastructure
project proposal, the prioritized colonias infrastructure projects will be
recommended by the board to the authority for funding as qualified projects to
the extent of the available moneys in the colonias infrastructure project fund.
G. At
least annually, the board will recommend to the authority a list of qualified
projects recommended for funding. The authority will provide financial
assistance for qualified projects as recommended by the board under policies
jointly established by the board and authority.
[2.91.2.9 NMAC – N, 2/15/2012]
2.91.2.10 COLONIAS INFRASTRUCTURE QUALIFIED PROJECTS AND ELIGIBLE COSTS:
A. The board may authorize the
authority to provide financial assistance from the colonias infrastructure
project fund to qualified entities only for qualified colonias infrastructure
projects as provided by Section 6-30-3 and Section 6-30-5, NMSA 1978.
B. items,
which include:
(1) planning,
designing, construction, improving or expanding a qualified project;
(2) developing
engineering feasibility reports for qualified projects;
(3) inspecting
construction of qualified projects;
(4) providing
professional services;
(5) completing
environmental assessments or archeological clearances and other surveys for
qualified projects;
(6) acquiring
land, water rights, easements or rights of way; and
(7) paying
legal costs and fiscal agent fees associated with development of qualified
projects, within limits set by the board.
C. A
qualified entity which has had financial assistance approved by the board for
financing a qualified project may apply to the board to redirect the financial
assistance to a different colonias infrastructure project made necessary by
unanticipated events. The decision to
redirect the financial assistance to a different qualified project will be at
the sole discretion of the board upon the advice of the authority staff.
[2.91.2.10 NMAC – N, 2/15/2012]
2.91.2.11 QUALIFIED PROJECT FINANCING: The authority may recommend structured
financial assistance packages that include loans, grants and any other type of
assistance authorized by the authority.
The structure, terms and conditions of the financial assistance will be
determined by the authority in accordance with the policies jointly established
by the board and the authority. Any
variance from the policies in connection with financial assistance for any
qualified project shall be approved by the authority. Financial assistance for
qualified projects may be pooled, at the sole discretion of the authority,
under policies jointly established by the board and authority.
[2.91.2.11 NMAC – N, 2/15/2012; A, 4/6/2021]
2.91.2.12 FINANCING APPROVAL REQUIREMENTS:
Based on the priority and evaluation factors set forth in Sections 8, 9,
and 10, the board may recommend to the
authority approval of the qualified project for financial assistance.
[2.91.2.12 NMAC – N, 2/15/2012]
2.91.2.13 RECONSIDERATION OF BOARD DECISIONS: Any applicant or qualified entity
affected by a decision of the board may request reconsideration of the decision
of the board by notifying the board in writing within 15 days following the
meeting at which the decision was made. Notice of a decision made in an open
meeting of the board is deemed to be given on the date of the meeting, and the
time for notification of a request for reconsideration shall run from that
date, regardless whether any written notice of the decision is given by the
board. A request for reconsideration
shall state with particularity the grounds for reconsideration, including any
factual or legal matter on which the applicant or qualified entity believes
that there was an error by the board. Upon receiving a timely and proper
request for reconsideration, the chairman of the board will set the matter for
reconsideration at the board’s next regularly scheduled meeting or at a special
meeting called for the purpose, at the chairman’s discretion. Upon
reconsideration by the board, the board will notify the applicant or qualified
entity of the board’s decision, in writing, within five working days of the
decision. The decision of the board on
reconsideration is final. A request for
reconsideration not timely or properly made will not be considered by the
board.
[2.91.2.13 NMAC – N, 2/15/2012]
2.91.2.14 FINANCIAL ASSISTANCE AGREEMENT:
A. The
authority and the qualified entity will enter into an agreement to establish
the terms and conditions of financial assistance from the authority. The agreement will include the terms of
repayment and remedies available to the authority in the event of a
default. The authority will monitor
terms of the agreement and enforce or cause to be enforced all terms and
conditions thereof, including prompt notice and collection.
B. The
interest rate on any financial assistance extended shall be determined by the
authority based on the cost of funds and ability of a qualified entity to repay
a loan, and in accordance with the policies jointly established by the board
and the authority. The interest rate
shall not change during the term of the financial assistance unless refinanced
or unless the financial assistance is structured as a variable rate obligation.
C. The
agreement will contain provisions which require financial assistance recipients
to comply with all applicable federal, state and local laws and regulations.
D. In
the event of default under a financial assistance agreement by a qualified
entity, the authority may enforce its rights by suit or mandamus and may
utilize all other available remedies under state and applicable federal law.
[2.91.2.14 NMAC – N, 2/15/2012; A, 4/6/2021]
2.91.2.15 ADMINISTRATIVE COSTS:
A. The
authority may impose and collect reasonable fees and costs in connection with
the filing of a colonias infrastructure project proposal or an application for
financial assistance seeking approval of a colonias infrastructure project, and
for financial assistance from the board and the authority. The authority also may impose and collect an
administrative fee from each qualified entity that receives financial
assistance from the colonias infrastructure project fund. If an administrative fee is assessed, the
administrative fee will be a percentage of the principal amount of the
financial assistance provided to a qualified entity. The administrative fee may be withheld from
the principal amount of the financial assistance and will be retained in the
colonias infrastructure project fund.
Alternatively, the authority may levy an annual fee equal to a
percentage of the outstanding principal amount of a loan. Specific percentages will be based on, among
other things, the volume of financial assistance being provided to qualified
entities, the administrative costs of the board and the authority, and the
availability of other revenue sources to cover the board’s and the authority’s
administrative costs. The filing and
administrative fee or fees may be used for, among other purposes, reimbursing
the board or the authority for all or part of the costs of issuing bonds and
other administrative costs, including any audits of the colonias infrastructure
project fund and the colonias infrastructure
trust fund.
B. The
authority may establish such other charges, premiums, fees and penalties deemed
necessary for the administration of the colonias infrastructure project fund
and the colonias infrastructure trust fund.
[2.91.2.15 NMAC – N, 2/15/2012]
2.91.2.16 ADMINISTRATION OF THE COLONIAS INFRASTRUCTURE TRUST FUND:
A. Pursuant
to Section 6-30-7, NMSA 1978, the colonias infrastructure trust fund shall be
administered by the state treasurer’s office and shall be invested by the state
investment officer in the same manner as land grant permanent funds are
invested under state law. All investment earnings on the colonias infrastructure
trust fund shall be credited to the colonias infrastructure trust fund. The colonias infrastructure trust fund shall
not be expended for any purpose, but an annual distribution from the trust fund
shall be made to the project fund pursuant to Section 6-30-7, NMSA 1978.
B. Annual
distributions to the colonias infrastructure project fund from the colonias
infrastructure trust fund shall be made as required by the authority.
[2.91.2.16 NMAC – N, 2/15/2012]
2.91.2.17 ADMINISTRATION OF THE COLONIAS INFRASTRUCTURE PROJECT FUND:
A. The
colonias infrastructure project fund shall be administered by the authority as
a separate account, but may consist of such subaccounts as the authority deems
necessary to carry out the purposes of the fund.
B. Money
from repayments of loans made by the board for qualified projects shall be
deposited in the colonias infrastructure project fund. The colonias infrastructure project fund
shall also consist of any other money appropriated, distributed or otherwise
allocated to the colonias infrastructure project fund for the purpose of
financing qualified projects under the act.
C. The
authority shall adopt a uniform accounting system for the colonias
infrastructure project fund and each account and subaccount established by the
authority, based on generally accepted accounting principles.
D. The
authority may establish procedures and adopt rules as required to administer
the colonias infrastructure project fund and to recover from the colonias
infrastructure project fund costs of administering the fund and originating
grants and loans.
[2.91.2.17 NMAC – N, 2/15/2012]
2.91.2.18 AMENDMENT OF RULES: This rule may be amended or repealed at any
time by a majority vote of a quorum of the board.
[2.91.2.18 NMAC – N, 2/15/2012]
HISTORY
OF 2.91.2 NMAC:
[RESERVED]