New Mexico Register / Volume XXXIV, Issue 8 / April
25, 2023
TITLE 2 PUBLIC FINANCE
CHAPTER 93 OPPORTUNITY ENTERPRISE ACT ENTERPRISE
ASSISTANCE
2.93.1.1 ISSUING AGENCY: New Mexico Opportunity Enterprise Review
Board.
[2.93.1.1 NMAC – N,
4/25/2023]
2.93.1.2 SCOPE: All persons or entities applying for
enterprise assistance under the opportunity enterprise revolving fund
administered by the New Mexico finance authority, Sections 6-34-8 and 6-34-12, NMSA 1978.
[2.93.1.2 NMAC – N, 4/25/2023]
2.93.1.3 STATUTORY AUTHORITY: Sections 6-34-6 and 6-34-7, NMSA 1978.
[2.93.1.3 NMAC – N,
4/25/2023]
2.93.1.4 DURATION: Permanent.
[2.93.1.4 NMAC – N,
4/25/2023]
2.93.1.5 EFFECTIVE
DATE: April 25, 2023, unless a later date is cited at the end of a section.
[2.93.1.5 NMAC – N,
4/25/2023]
2.93.1.6 OBJECTIVE:
A. Section
6-34-3, NMSA 1978, provides that the authority may adopt separate rules to
administer the opportunity enterprise revolving fund to originate enterprise
assistance for opportunity enterprise projects recommended by the board, govern
the process through which applicants may apply for enterprise assistance from
the opportunity enterprise revolving fund, and collect fees and costs related
to providing enterprise financing to each opportunity enterprise financing
partner.
B. Section
6-34-5, NMSA 1978 provides that the authority shall provide staff support for
necessary administrative services of the board.
C. Section
6-34-6, NMSA 1978 provides that the authority shall upon the recommendation of
the board, process, review and evaluate applications for enterprise assistance
received from applicants.
D. Section
6-34-7, NMSA 1978 provides that the opportunity enterprise review board is
required to adopt rules necessary to carry out the provisions of the act and
allowing the authority to establish procedures for applying and qualifying for
enterprise assistance, establishing economic development goals for the state in
consultation with the department, governing the application procedures and
requirements for enterprise assistance, determining how to select and
prioritize applications for enterprise assistance to by funded by the
authority, and providing safeguards to protect public money and other public
resources.
E. Section
6-34-12, NMSA 1978 provides that the authority shall administer the opportunity
enterprise revolving fund and recover from the opportunity enterprise revolving
fund the costs of administering the fund and originating enterprise assistance.
F. Subsection
K of Section 6-21-5, NMSA 1978 provides that the authority may fix charges and collect
fees and other charges in connection with the making of loans, leases and any
other services rendered by the authority.
[2.93.1.6 NMAC – N,
4/25/2023]
2.93.1.7 DEFINITIONS:
A. “Act”
means the Opportunity Enterprise Act, Sections 6-34-1 through 6-34-15, NMSA
1978, as the same may be amended and supplemented.
B. “Application”
means a written document made publicly available by the authority and filed
with the authority for enterprise assistance for the purpose of evaluating, in
consultation with the department, the applicant’s qualifications and proposed
enterprise development project or projects for types of enterprise assistance
which may be provided by the authority under the act.
C. “Authority”
means the New Mexico finance authority.
D. “Board”
means the opportunity enterprise review board created by the Act.
E. “Bylaws”
means the bylaws of the board adopted on August 24, 2022, as amended and
supplemented from time to time.
F. “Department”
means the economic development department.
G. “Economic
development opportunities” means the advancement of an environmentally
sustainable economic development goal of the state as determined by the
authority, in coordination with the department, and includes the creation of
jobs, the provision of needed services and commodities to diverse communities
across the state and the increase of tax and other revenue collections
resulting from the enterprise development project.
H. “Enterprise
assistance” means opportunity enterprise financing, an opportunity enterprise
lease or an opportunity enterprise loan.
I. “Enterprise
development project” means the purchase, planning, designing, building,
surveying, improving, operating, furnishing, equipping or maintaining of land,
buildings or infrastructure to create or expand economic development
opportunities within the state.
J. “Fund”
means the opportunity enterprise revolving fund.
K. “Opportunity
enterprise partner” means a domestic corporation, a general partnership, a
limited liability company, a limited partnership, a public benefit corporation,
a nonprofit entity or other private business entity or combination thereof that
the authority determines is or will be engaged in an enterprise that creates or
expands economic development opportunities within the state and is eligible for
enterprise assistance pursuant to the act.
L. “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 enterprise development projects to be recommended for funding from the
fund.
M. “State”
means the state of New Mexico.
[2.93.1.7 NMAC – N,
4/25/2023]
2.93.1.8 ELIGIBILITY AND PRIORITIZATION
POLICIES FOR ENTERPRISE DEVELOPMENT PROJECTS: The board will develop and consider a variety
of factors in reviewing and evaluating enterprise development project proposals
to determine which enterprise development projects to recommend to the
authority for enterprise assistance from the fund. Board policies shall give
priority to projects that:
A. demonstrate
local support and financial need,
B. create
or expand economic development opportunities within the state,
C. contribute
to diversification of the state’s economy,
D. advance
environmentally sustainable economic development goals of the state, and
E. other
means of financing a proposed enterprise development project are unavailable or
insufficient. The board shall establish policies to consider in prioritizing
enterprise development projects.
[2.93.1.8 NMAC – N,
4/25/2023]
2.93.1.9 ENTERPRISE DEVELOPMENT PROJECT
PROPOSAL, REVIEW, PRIORITIZATION AND APPROVAL PROCESS:
A. The
board and the department will administer an outreach program to local governments
and potential opportunity enterprise partners for the purpose of making
recommendations to the authority regarding enterprise assistance, and to notify
applicants that enterprise development project proposals are being accepted for
review by the project review committee and the board for prioritization and
recommendation for funding to the authority.
B. The
authority will provide forms and guidelines for enterprise development project
proposals and applications for enterprise assistance. The authority may consider the
recommendations and priorities of the board.
C. Applications
for enterprise assistance shall describe the scope and plans of the enterprise
development project or proposed use of leased property, demonstrate that the
enterprise development project or lease will create or expand economic
development opportunities within the state, demonstrate that the enterprise
project or lease will contribute to the diversification of the state’s economy,
demonstrate that the enterprise development project or lease will comply with
all applicable state and federal law, provide sufficient evidence that other means
of financing a proposed enterprise development project are unavailable or
insufficient, and include any other documentation or certifications that the
authority deems necessary.
D. Department
staff will complete an initial evaluation of the application for enterprise
assistance and enterprise development project proposals promptly following
receipt in consideration of information provided by applicants according to the
factors listed in Subsection C of 2.93.1.9.NMAC. Such evaluation will
include recommendations regarding suitability for enterprise assistance. The department may obtain input and
information relevant to carrying out the purposes of the act from outside consultants in evaluating enterprise
development project proposals and applications for enterprise assistance. The department will
then forward to the project review committee for review, the relevant application and the
corresponding recommendation of the department, along with all third-party
input and information compiled by the department.
E. The
project review committee will consider the proposed enterprise development
project and may confer with outside parties, including any person familiar with
the proposed enterprise development project, as necessary to obtain more
information on the feasibility, merit, and cost of the proposed enterprise
development project. The project review
committee will make a recommendation to the board on each enterprise
development project proposal.
F. Upon
the recommendation of the project review committee, the board will prioritize
the proposed enterprise development projects for recommendation to the
authority for consideration of enterprise assistance.
G. After
completion of the review process by the project review committee and the board
and receipt of a favorable recommendation on the enterprise development project
proposal, the prioritized enterprise development projects will be recommended
by the board to the authority for consideration of enterprise assistance.
H. NMFA
may request an additional application from recommended enterprise assistance
projects.
I. A
member of the board or employee of the authority with an interest, either
direct or indirect, in an application or contract relating to enterprise
assistance, shall disclose his or her interest to the authority and the board
in writing and shall not participate in actions by the board or the authority
with respect to that conflict.
[2.93.1.9 NMAC – N,
4/25/2023]
2.93.1.10 ENTERPRISE
DEVELOPMENT PROJECTS AND ELIGIBLE COSTS:
A. The
board may recommend to the authority that enterprise assistance from the fund
should be made available for enterprise development projects as provided by
Section 6-34-6, NMSA 1978.
B. Enterprise
assistance from the fund shall be made only for eligible items, a determined by
the authority, which includes:
(1) opportunity enterprise financing;
(2) opportunity enterprise loans;
(3) acquiring title or other interest in an enterprise
development project;
(4) paying the reasonably necessary administrative costs,
payments in lieu of taxes and other costs and fees incurred by the authority in
carrying out the provisions of the act.
[2.93.1.10 NMAC – N,
4/25/2023]
2.93.1.11 ENTERPRISE
DEVELOPMENT PROJECT FINANCING: The
authority may recommend structured enterprise assistance packages that include
opportunity enterprise financing, opportunity enterprise leases, opportunity
enterprise loans, or other type of assistance authorized by the authority and
the board, if applicable. The structure,
terms and conditions of the financial assistance will be determined by the
authority. Upon completion of an
enterprise development project, the authority shall allow the opportunity
enterprise partner responsible for the completion of that project an
opportunity to obtain an opportunity enterprise lease for that property,
provided that any breach of the terms of any enterprise assistance may preclude
that opportunity enterprise partner from leasing the property, and in that
event, the property shall be made available for lease to other opportunity
enterprise partners.
[2.93.1.11 NMAC – N,
4/25/2023]
2.93.1.12 FINANCING
APPROVAL REQUIREMENTS: Based on the
priority and evaluation factors set forth in Sections 8, 9, and 10 above, as
well as the requirements of the Act, the board may recommend to the authority
enterprise development projects for consideration of enterprise
assistance. Board recommendations may be
considered by the authority but shall not be binding on the authority. A member of the board or employee of the
authority with an interest, either direct or indirect, in an application or
contract relating to enterprise assistance, shall disclose his or her interest
to the authority and the board in writing and shall not participate in actions
by the board or the authority with respect to that conflict.
[2.93.1.12 NMAC – N,
4/25/2023]
2.93.1.13 RECONSIDERATION
OF BOARD DECISIONS: Any applicant
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 of 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 believes that there was an error
by the board. Upon receiving a timely and proper request for reconsideration,
the chair 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 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.
[2.93.1.13 NMAC – N,
4/25/2023]
2.93.1.14 ENTERPRISE
ASSISTANCE CONTRACT:
A. The
authority and opportunity enterprise partner awarded enterprise assistance will
enter into a contract to establish the terms and
conditions of enterprise assistance from the authority. The contract to provide enterprise assistance
shall:
(1) define the roles and responsibilities of the authority and
the opportunity enterprise partner;
(2) provide clawback or recapture provisions, if applicable,
that protect the public investment in the event of a default on the contract;
(3) provide a finance plan detailing the financial
contributions and obligations of the authority and opportunity enterprise
partner;
(4) require an opportunity enterprise partner to provide
guarantees, letters of credit or other acceptable forms of security, as
determined by the authority;
(5) specify how rents, if applicable, will be collected and
accounted for;
(6) specify how debts incurred on behalf of the opportunity
enterprise partner will be repaid; and
(7) provide that, in the event of a default, the authority may
(a) elect to take possession of the property, including the succession of all
right, title and interest in the enterprise development project; and (b) terminate the lease or cease any further
funding and exercise any other rights and remedies that may be available.
B. The
interest rate on any enterprise assistance extended, if applicable, shall be
determined by the authority
C. The
contract will contain provisions which require enterprise assistance recipients
to comply with all applicable federal, state and local laws and regulations.
D. The
authority will monitor terms of the contract and enforce or cause to be
enforced all terms and conditions thereof, including prompt notice and
collection. In the event of default
under an enterprise assistance contract by an applicant, the authority may
enforce its rights by suit or mandamus and may utilize all other available
remedies under state and applicable federal law.
E. All
contracts for enterprise assistance shall be provided to the board by the
authority no later than thirty days from the execution of that contract. The board shall review contracts from time to
time and determine whether the use of enterprise assistance is a prudent
expenditure of public funds and report to the legislature annually on that determination. The board shall also make recommendations to
the authority of potential rulemaking, application or lending changes to ensure
transparent and efficient processes for carrying out the provisions of the Act.
[2.93.1.14 NMAC – N,
4/25/2023]
HISTORY OF 2.93.1
NMAC: [RESERVED]