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. All affordable housing contributions authorized by this chapter shall be in compliance with the Lovington affordable housing plan and the Affordable Housing Act Rules.
B. Request for proposals. The city, in its discretion, may issue one or more RFPs to solicit applications 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.
C. 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 chapter that are approved by the city;
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 non-profit 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; and
c. Have no part of its net earnings inuring to the benefit of any member, founder, contributor, or individual;
5. All non-individual applicants must:
a. Be organized under state or local laws and 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 or has designated entity that will maintain such an accounting system consistent with generally accepted accounting principles;
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, MFA, or its most recent independent financial audit, or if it has any such findings, it has a certified letter from the city, MFA, or auditor stating that the findings are in the process of being resolved.
D. Applications.
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;
b. A proposal describing the nature and scope of the affordable housing project proposed by the applicant and which describes the type and/or amount of assistance which the applicant proposes to provide to persons of low or moderate income;
c. Executive summary and project narrative(s) that address the evaluation criteria set forth in any RFP issued by the city for the affordable housing funds or the housing assistance grant;
d. A proposed budget for the affordable housing project or for a housing assistance grant;
e. Current independent financial audit;
f. If the applicant is a nonprofit organization:
i. Proof of 501(c)(3) tax status;
ii. 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:
i. 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 city and/or MFA in its discretion;
ii. 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;
iii. A list of members of the applicant's current board of directors or other governing body, including designated homeless participation, where required by city and/or MFA;
iv. Evidence (or a certification as may be allowed by city and/or MFA) that the applicant has a functioning accounting system that is operated in accordance with generally accepted accounting principles; or has a designated entity that will maintain such an accounting system consistent with generally accepted accounting principles;
v. Evidence that the applicant has no significant outstanding or unresolved monitoring findings from city, MFA, or its most recent independent financial audit; or if it has any significant outstanding or unresolved monitoring findings from city, MFA, or its most recent independent financial audit, it has a certified letter from city, MFA, or the auditor stating that the findings are in the process of being resolved;
vi. An organizational chart, including job titles and qualifications for the applicant's employees or as otherwise may be required by city and/or MFA in its discretion. Job descriptions may be submitted as appropriate;
vii. 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 in order for it to determine the financial and management stability of the applicant;
i. Information as may be required by the city 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 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;
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 chief executive officer, board president, or other authorized official of the applicant, provided that the city at its discretion may waive any of the foregoing requirements not deemed applicable;
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 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.
2. Additional requirements for multi-family housing projects. Applicants who are submitting applications in connection with a multi-family housing program must also submit the following additional information:
a. A verified certificate that, among other things:
i. Identifies every multi-family 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;
ii. Except as shown on such certificate, states that:
(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 multi-family housing programs or other programs to be financed; and
e. Previous participation by the applicant in MFA's programs and HUD, Federal Housing Authority, or Rural Housing Service programs.
4. Submission procedure.
a. Time, place and method of submission delivery.
i. 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 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 MFA housing assistance grant would be made, the city shall issue any RFP's, solicit any applications, or otherwise identify any qualifying grantees no later than October 15 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 MFA not less than forty-five 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.
ii. 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 chapter and any RFP which may have been issued.
b. Additional factors. The application procedures shall take into consideration:
i. Timely completion and submission to the city of an application or other appropriate response to any solicitation by the city;
ii. Timely submission of all other information and documentation related to the program required by the city as set forth in this chapter or as set forth in the Rules;
iii. Timely payment of any fees required to be paid to the city at the time of submission of the application; and
iv. Compliance with program eligibility requirements as set forth in the Act, the Rules and this chapter.
c. Submission format.
i. 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.
ii. 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.
iii. Illegible information, information inconsistent with other information provided in the application, and/or incomplete forms will be treated as missing information and evaluated accordingly.
iv. The city and 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.
v. The city in its discretion may cancel any RFP or reject any or all proposals in whole or part submitted by any applicant.
vi. Neither the city nor MFA shall be responsible for any expenses incurred by an applicant in preparing and submitting an application. However, the city or 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 MFA, as applicable, in any RFP or otherwise shall be advertised as part of the application solicitation process.
vii. Review by 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;
(d) Determined 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 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 plan addresses how persons of low income or moderate income in need of housing and/or housing related supportive services can receive supportive services and referrals to federal, state and local resources; and, whether the applicant's plan addresses outreach efforts to reach the population to be served as identified by the city in any RFP 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 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 non-compliance with program requirements from the city or MFA, as applicable or if it has any such findings, it has a certified letter from the city, 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 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 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.
vi. Certification by city to MFA, city shall certify an application to MFA in writing upon:
(a) Completion of its review of the application;
(b) Determination that the application is complete;
(c) Determination that the requirements of the Act, the rules and this chapter have been satisfied; and
(d) Determination that the applicant is a qualifying grantee.
vii. Review by MFA. 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. 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. 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, MFA shall act on an application within forty-five days of its receipt of any application, which MFA deems to be complete, and, if not acted upon, the application shall be deemed to be approved.
viii. Notification of acceptance. The city, upon completion of the review of the application using the criteria as set forth in this chapter and/or any RFP issued by the city and upon its receipt of notification from 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, shall provide written notice to each applicant of the approval or disapproval of its application. The City's and MFA's determination of any application shall be conclusive.
E. Additional requirements. Upon acceptance, the following additional requirements shall apply:
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 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 chapter, 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 attorney fees and costs which the city and/or MFA may incur in enforcing the provisions of this chapter, 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 MFA to ensure that such funds shall be utilized by the qualifying grantee in accordance with the Act, the Rules and this chapter.
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 MFA deems necessary or appropriate to determine the qualifying grantee's compliance with the terms of the Act, the Rules, this chapter and any contracts between the qualifying grantee and the city, the city and/or 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 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 city. If the city determines that the qualifying grantee is under spending 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 twenty days of the close of the month for which payment is sought may result in the non-availability 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 city.
6. Additional information. Qualifying grantees shall provide the city with any and all information which the city reasonably may require in order for it to confirm that the qualifying grantees continue to satisfy the requirements of the Act, the Rules and this chapter throughout the term of any contract and/or any affordability period or otherwise as maybe required by the city or MFA in its discretion. At a minimum, on an annual basis, the city shall certify to 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 chapter.
7. Compliance. All projects qualified to receive assistance pursuant to the Act, the Rules and this chapter shall also comply with all requirements, as amended from time to time.
F. 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. Qualifying grantees shall agree that they shall maintain any single-family property which has been acquired, rehabilitated, 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 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.
2. Multi-family property.
a. Single Apartment within a multi-family property. Qualifying grantees shall agree that, if any single apartments are to be rehabilitated, 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 sixty percent of the cost of the rehabilitation, 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 and provided that there is no just cause 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 multi-family property are to be acquired, rehabilitated, 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 sixty percent 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 non-residential property which has been acquired, rehabilitated, 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 either as single-family or multi-family affordable housing in accordance with F.1. and F.2. of this section or as a facility which provides housing related-services to persons of low or moderate income in accordance with F.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 either as single-family or multi-family 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 and 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 state or county 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 3.20.030 of this chapter.
G. 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 chapter and any agreement between the qualifying grantee and the city and/or MFA.
H. Recertification procedures.
1. The qualifying grantee must meet the requirements of the Act, the Rules and this chapter 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 MFA are satisfied.
I. 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 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.
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 MFA with the following:
a. Documentation that confirms that the city has an existing valid affordable housing plan.
b. A copy of the proposed ordinance which provides for the authorization of the housing assistance grant, including the use of any affordable housing funds, together with a written certification that the proposed grantee is in compliance with Act and the Rules so that MFA may confirm both that the ordinance is in compliance with the Act, 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 ordinance to the Commission, the Commission must approve the budget submitted by the applicant.
3. An ordinance 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; and
c. Must authorize the transferor disbursement to the qualifying grantee only after a budget is submitted to and approved by the Commission;
d. Must comply with the Rules, as amended;
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 MFA.
4. MFA shall act to approve the proposed housing assistance grant authorized by the city within forty-five days of its receipt of the documentation required above in 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 MFA under this chapter and the Rules.
K. Upon amendment of this chapter, it must be submitted to MFA for review of any and all changes for determination that the amended ordinance remains in compliance with the Act, these Rules, and other applicable law. (Ord. 506, 2013)