NMSA 1978, § 5-10-1 Short title
5-10-1. Short title
Chapter 5, Article 10 NMSA 1978 may be cited as the "Local Economic Development Act".
Laws 1993, ch. 297, § 1; 2016, ch. 14, § 1.
Local Economic Development
NMSA 1978 ch. 5, art. 10
in effectNMSA 1978, § 5-10-2 Findings and purpose of act
5-10-2. Findings and purpose of act
A. The legislature finds that:
(1) development of the New Mexico economy is vital to the well-being of the state and its residents;
(2) it is difficult for municipalities and counties in New Mexico to attract and retain businesses capable of enhancing the local and state economy without the resources necessary to compete with other states and locales;
(3) municipalities and counties may need to be able to provide land, buildings and infrastructure as a tool for basic business growth and the introduction of basic business ventures into the state;
(4) it is in the best interest of the state, municipalities and counties to encourage local or regional solutions to economic development; and
(5) the access to public resources needs to be carefully controlled and managed for the continued and future benefit of New Mexico citizens.
B. The purpose of the Local Economic Development Act is to implement the provisions of the 1994 constitutional amendment to Article 9, Section 14 of the constitution of New Mexico to allow public support of economic development 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 that act is to allow municipalities and counties to enter into joint powers agreements to plan and support regional economic development projects, including investments in arts and cultural districts created pursuant to the Arts and Cultural District Act [15-5A-1 to 15-5A-7 NMSA 1978].
Laws 1993, ch. 297, § 2; 2007, ch. 160, § 8.
NMSA 1978, § 5-10-3 Definitions
5-10-3. Definitions
As used in the Local Economic Development Act:
A. "arts and cultural district" means a developed district of public and private uses that is created pursuant to the Arts and Cultural District Act [15-5A-1 to 15-5A-7 NMSA 1978];
B. "broadband telecommunications network facilities" means the electronics, equipment, transmission facilities, fiber-optic cables and any other item directly related to a system capable of transmission of internet protocol or other formatted data at current federal communications commission baseline speed standard, all of which will be owned and used by a provider of internet access services;
C. "cultural facility" means a facility that is owned by the state, a county, a municipality or a qualifying entity that serves the public through preserving, educating and promoting the arts and culture of a particular locale, including theaters, museums, libraries, galleries, cultural compounds, educational organizations, performing arts venues and organizations, fine arts organizations, studios and media laboratories and live-work housing facilities;
D. "department" means the economic development department;
E. "economic development project" or "project" means the project of a qualifying entity for which public support may be provided pursuant to the Local Economic Development Act;
F. "governing body" means the city council, city commission or board of trustees of a municipality or the board of county commissioners of a county;
G. "local government" means a municipality or county;
H. "municipality" means an incorporated city, town or village;
I. "new full-time economic base job" means a job:
(1) that is primarily performed in New Mexico;
(2) that is held by an employee who is hired to work an average of at least thirty-two hours per week for at least forty-eight weeks per year;
(3) that is:
(a) involved, directly or in a supervisory capacity, with the production of: 1) a service; provided that the majority of the revenue generated from the service is from sources outside the state; or 2) tangible or intangible personal property for sale; or
(b) held by an employee who is employed at a regional, national or international headquarters operation or at an operation that primarily provides services for other operations of the qualifying entity that are located outside the state; and
(4) that is not directly involved with natural resources extraction or processing, on-site services where the customer is present for the delivery of the service, retail, construction or agriculture except for value-added processing performed on agricultural products that would then be sold for wholesale or retail consumption;
J. "person" means an individual, corporation, association, partnership or other legal entity;
K. "public support" means 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;
L. "qualifying entity" means 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 agricultural or manufactured products;
(2) a commercial enterprise for storing, warehousing, distributing or selling products of agriculture, mining or industry, but, other than as provided in Paragraph (5), (6) or (9) of this subsection, not including any enterprise for sale of goods or commodities at retail or for distribution to the public of electricity, gas, water or telephone or other services commonly classified as public utilities;
(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 Paragraph (5) or (9) of this subsection, not including businesses primarily engaged in the sale of goods or commodities at retail;
(4) an Indian nation, 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 farmers' markets;
(7) a business that is the developer of a metropolitan redevelopment project;
(8) a cultural facility; and
(9) a retail business;
M. "regional government" means any combination of municipalities and counties that enter into a joint powers agreement to provide public support for economic development projects pursuant to a plan adopted by all parties to the joint powers agreement; and
N. "retail business" means a business that is primarily engaged in the sale of goods or commodities at retail and that is located:
(1) in a municipality with a population, according to the most recent federal decennial census, of:
(a) fifteen thousand or less; or
(b) more than fifteen thousand if the economic development project is not funded or financed with state government revenues; or
(2) in an unincorporated area of a county.
Laws 1993, ch. 297, § 3; 1998, ch. 90, § 3; 1999, ch. 245, § 1; 2000, ch. 103, § 5; 2007, ch. 160, § 9; 2013, ch. 201, § 1; 2016, ch. 14, § 2; 2017, ch. 6, § 1; 2019, ch. 208, § 1; 2019, ch. 274, § 6; 2020, ch. 74, § 3; 2021, ch. 3, § 1; 2021, ch. 135, § 1.
NMSA 1978, § 5-10-4 Economic development projects; restrictions on public expenditures or pledges of credit
5-10-4. Economic development projects; restrictions on public expenditures or pledges of credit
A. No local or regional government shall provide public support for economic development projects as permitted pursuant to Article 9, Section 14 of the constitution of New Mexico except as provided in the Local Economic Development Act or as otherwise permitted by law.
B. The total amount of public money expended and the value of credit pledged in the fiscal year in which that money is expended by a local government for economic development projects pursuant to Article 9, Section 14 of the constitution of New Mexico and the Local Economic Development Act shall not exceed ten percent of the annual general fund expenditures of the local government in that fiscal year. The limits of this subsection shall not apply to:
(1) the value of any land or building contributed to any project pursuant to a project participation agreement;
(2) revenue generated through the imposition of an increment of the municipal gross receipts tax at a rate not to exceed one-fourth percent and dedicated to furthering or implementing economic development plans and projects as defined in the Local Economic Development Act or projects as defined in the Statewide Economic Development Finance Act [Chapter 6, Article 25 NMSA 1978]; provided that no more than the greater of fifty thousand dollars ($50,000) or ten percent of the revenue collected shall be used for promotion and administration of or professional services contracts related to the implementation of any such economic development plan adopted by the governing body;
(3) revenue generated through the imposition of an increment of the county gross receipts tax at a rate not to exceed one-eighth percent and dedicated to furthering or implementing economic development plans and projects as defined in the Local Economic Development Act or projects as defined in the Statewide Economic Development Finance Act; provided that no more than the greater of fifty thousand dollars ($50,000) or ten percent of the revenue collected shall be used for promotion and administration of or professional services contracts related to the implementation of any such economic development plan adopted by the governing body;
(4) the proceeds of a revenue bond issue to which municipal infrastructure gross receipts tax revenue is pledged;
(5) the proceeds of a revenue bond issue to which the revenue from an increment of the county gross receipts tax, imposed at a rate not to exceed one-eighth percent and dedicated by the ordinance imposing the increment to provide public support for projects, is pledged; or
(6) funds donated by private entities to be used for defraying the cost of a project.
C. A regional or local government that generates revenue for economic development projects to which the limits of Subsection B of this section do not apply shall create an economic development fund into which such revenues shall be deposited. The economic development fund and income from the economic development fund shall be deposited as provided by law. Money in the economic development fund may be expended only as provided in the Local Economic Development Act or the Statewide Economic Development Finance Act.
D. In order to expend money from an economic development fund for arts and cultural district purposes, cultural facilities or retail businesses, the governing body of a municipality or county that has imposed a municipal or county local option infrastructure gross receipts tax for furthering or implementing economic development plans and providing public support for projects as defined in the Local Economic Development Act or projects as defined in the Statewide Economic Development Finance Act by referendum of the majority of the voters voting on the question approving the ordinance imposing the municipal or county infrastructure gross receipts tax before July 1, 2013 shall be required to adopt a resolution. The resolution shall call for an election to approve arts and cultural districts as a qualifying purpose and cultural facilities or retail businesses as a qualifying entity before any revenue generated by the municipal or county local option gross receipts tax for furthering or implementing economic development plans and providing public support for projects as defined in the Local Economic Development Act or projects as defined in the Statewide Economic Development Finance Act can be expended from the economic development fund for arts and cultural district purposes, cultural facilities or retail businesses.
E. The governing body shall adopt a resolution calling for an election within seventy-five days of the date the ordinance is adopted on the question of approving arts and cultural districts as a qualifying purpose and cultural facilities or retail businesses as a qualifying entity eligible to utilize revenue generated by the Municipal Local Option Gross Receipts and Compensating Taxes Act [Chapter 7, Article 19D NMSA 1978] or the County Local Option Gross Receipts and Compensating Taxes Act [Chapter 7, Article 20E NMSA 1978] for furthering or implementing economic development plans and providing public support for projects as defined in the Local Economic Development Act or projects as defined in the Statewide Economic Development Finance Act.
F. The question shall be submitted to the voters of the municipality or county as a separate question at a regular local or county election or at a special election called for that purpose by the governing body. A special local election shall be called, conducted and canvassed as provided in the Local Election Act [Chapter 1, Article 22 NMSA 1978]. A special county election shall be called, conducted and canvassed in substantially the same manner as provided by law for general elections.
G. If a majority of the voters voting on the question approves the ordinance adding arts and cultural districts and cultural facilities or retail businesses as an approved use of the local option municipal or county economic development infrastructure gross receipts tax fund, the ordinance shall become effective on July 1 or January 1, whichever date occurs first after the expiration of three months from the date of the adopted ordinance. The ordinance shall include the effective date.
Laws 1993, ch. 297, § 4; 1998, ch. 90, § 4; 2003, ch. 349, § 17; 2007, ch. 160, § 10; 2009, ch. 172, § 1; 2013, ch. 201, § 2; 2018, ch. 79, § 73; 2019, ch. 274, § 7; 2021, ch. 3, § 2.
NMSA 1978, § 5-10-5 Economic development department; technical assistance
5-10-5. Economic development department; technical assistance
At the request of a local or regional government, the department shall provide technical assistance in the development of an economic development plan or economic development project or technical assistance to cultural facilities with respect to economic development projects.
Laws 1993, ch. 297, § 5; 2007, ch. 160, § 11.
NMSA 1978, § 5-10-6 Economic development plan; contents; publication
5-10-6. Economic development plan; contents; publication
A. Every local or regional government seeking to pursue economic development projects shall adopt an economic development plan or a comprehensive plan that includes an economic development component, and an economic development plan or comprehensive plan may include an analysis of the role of arts and cultural activities in economic development. The plan may be specific to a single economic development goal or strategy or may include several goals or strategies, including any goals or strategies relating to economic development through arts and cultural activities. Any plan or plan amendment shall be adopted by ordinance of the governing body of the local government or each local government of a regional government proposing the plan or plan amendment.
B. The economic development plan or the ordinance adopting the plan may:
(1) describe the local or regional government's economic development and community goals, including any economic development goals with an arts and cultural component, and assign priority to and strategies for achieving those goals;
(2) describe the types of qualifying entities and economic activities that will qualify for public support;
(3) describe the criteria to be used to determine eligibility for public support and a qualifying entity to participate in an economic development project;
(4) describe the manner in which a qualifying entity may submit an application for public support pursuant to Section 5-10-8 NMSA 1978, including the type of information required from the qualifying entity sufficient to ensure its solvency and ability to perform its contractual obligations, its commitment to remain in the community and its commitment to the stated economic development goals of the local or regional government;
(5) describe the process the local or regional government will use to verify the information submitted on an application for public support pursuant to Section 5-10-8 NMSA 1978;
(6) if an economic development project is determined to be unsuccessful or if a qualifying entity seeks to leave the area, describe the methods the local or regional government will use to terminate the local or regional government's public support and recoup its investment;
(7) identify revenue sources, including those of the local or regional government, that will be used to provide public support for economic development projects;
(8) identify other resources the local or regional government is prepared to offer qualifying entities, including specific land or buildings it is willing to lease, sell or grant a qualifying entity; community infrastructure it is willing to build, extend or expand, including roads, water, sewers or other utilities; and professional services contracts by local or regional governments necessary to provide these resources;
(9) detail the minimum benefit the local or regional government requires from a qualifying entity, including the number and types of jobs to be created; the proposed payroll; repayment of loans, if any; purchase by the qualifying entity of local or regional government-provided land, buildings or infrastructure; the public to private investment ratio; and direct local tax base expansion;
(10) describe the safeguards of public resources that will be ensured, including specific ways the local or regional government can recover any costs, land, buildings or other thing of value if a qualifying entity ceases operation, relocates or otherwise defaults or reneges on its contractual or implied obligations to the local or regional government; and
(11) if a regional government, describe the joint powers agreement, including whether it can be terminated and, if so, how the contractual or other obligations, risks and any property will be assigned or divided among the local governments who are party to the agreement.
C. The economic development plan shall be printed and made available to the residents within the local or regional government area.
Laws 1993, ch. 297, § 6; 1998, ch. 90, § 5; 2007, ch. 160, § 12; 2021, ch. 3, § 3.
NMSA 1978, § 5-10-7 Regional plans; joint powers agreement; regional government
5-10-7. Regional plans; joint powers agreement; regional government
A. Two or more municipalities, two or more counties or one or more municipalities and counties may enter into a joint powers agreement pursuant to the Joint Powers Agreements Act [11-1-1 to 11-1-7 NMSA 1978] to develop a regional economic development plan, which may consist of existing local plans. The parties to the agreement shall be deemed a regional government for the purposes of the Local Economic Development Act.
B. The joint powers agreement shall require that the governing body of each local government approve public support for each economic development project. The agreement may also provide for appointment of a project manager who shall be responsible for the management of projects and project funds. The agreement may provide for a regional body consisting of representatives from the governing bodies of each local government that is a party to the agreement and may determine the powers and duties of that body in implementing the regional government's plan and providing public support for projects.
Laws 1993, ch. 297, § 7; 2021, ch. 3, § 4.
NMSA 1978, § 5-10-8 Applications for public support
5-10-8. Applications for public support
A. After the adoption of an economic development plan by a local or regional government, a qualifying entity shall submit to the local or regional government an application for public support of a qualifying entity's economic development project.
B. The application shall be on a form and require such information as the local or regional government deems necessary.
Laws 1993, ch. 297, § 8; 2021, ch. 3, § 5.
NMSA 1978, § 5-10-9 Project evaluation; department
5-10-9. Project evaluation; department
A. The local or regional government shall review each application for public support submitted pursuant to Section 5-10-8 NMSA 1978, and any public support shall be approved by ordinance.
B. The local or regional government's evaluation of an application shall be based on the provisions of the economic development plan, the financial and management stability of the qualifying entity, the demonstrated commitment of the qualifying entity to the community, a cost-benefit analysis of the project and any other information the local or regional government believes is necessary for a full review of the economic development project application.
C. The local or regional government may negotiate with a qualifying entity on the type or amount of public support to be provided or on the scope of the economic development project.
Laws 1993, ch. 297, § 9; 2007, ch. 160, § 13; 2021, ch. 3, § 6.
NMSA 1978, § 5-10-10 Local or regional government participation in economic development projects; project participation agreement; duties and requirements
5-10-10. Local or regional government participation in economic development projects; project participation agreement; duties and requirements
A. If a local or regional government provides public support for an economic development project without the participation of the state, the local or regional government and the qualifying entity shall enter into a project participation agreement pursuant to this section.
B. The local or regional government shall require a substantive contribution from the qualifying entity for each economic development project. Public support provided for an economic development project shall be in exchange for a substantive contribution from the qualifying entity. The 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.
C. The qualifying entity shall provide security to each local or regional government or 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.
D. If a qualifying entity fails to perform its substantive contribution, the local or regional government 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.
E. The project participation agreement at a minimum shall set out:
(1) the contributions to be made by each party to the participation agreement;
(2) the security provided to each governmental entity that provides public support for an economic development project by the qualifying entity in the form of a lien, mortgage or other indenture and the pledge of the qualifying business's financial or material participation and cooperation to guarantee the qualifying entity's performance pursuant to the project participation agreement;
(3) a schedule for project development and completion, including measurable goals and time limits for those goals; and
(4) provisions for performance review and actions to be taken upon a determination that project performance is unsatisfactory.
Laws 1993, ch. 297, § 10; 2013, ch. 43, § 1; 2020, ch. 74, § 4.
NMSA 1978, § 5-10-11 Project revenues; special fund; annual audit
5-10-11. Project revenues; special fund; annual audit
A. Local or regional government revenues dedicated or pledged for public support for economic development projects shall be deposited in a separate account. Separate accounts shall be established for each separate project. Money in the special account shall be expended only for economic development project purposes, which may include the payment of necessary professional services contract costs.
B. In the case of a regional government, revenues of each local government dedicated or pledged for economic development purposes shall be deposited in a special account of that local government and may be expended only by that local government as provided by the regional government's economic development plan and joint powers agreement.
C. The local or regional government shall provide for an annual independent audit in accordance with the Audit Act [12-6-1 to 12-6-15 NMSA 1978] of each special fund and project account. The audit shall be submitted to the local or regional government. The audit is a public record.
Laws 1993, ch. 297, § 11; 2021, ch. 3, § 7.
NMSA 1978, § 5-10-12 Plan and project termination
5-10-12. Plan and project termination
A. At any time after approval of an economic development plan, the governing body of the local government or the governing body of each local government in a regional government may enact an ordinance terminating the economic development plan and dissolving or terminating any or all public support for economic development projects. An ordinance repealing an economic development plan shall not be effective unless the ordinance provides for satisfying existing contracts and the rights of the parties arising from those contracts.
B. Any unexpended and unencumbered balances remaining in any project fund or account upon repeal of a plan and termination of public support for or dissolution of a project may be transferred to the general fund of the local government holding the fund or account. In the case of funds or accounts of a regional government, the unexpended and unencumbered balances shall be divided among the local governments as provided in the joint powers agreement.
Laws 1993, ch. 297, § 12; 2021, ch. 3, § 8.
NMSA 1978, § 5-10-13 Limitations
5-10-13. Limitations
Nothing in the Local Economic Development Act shall be construed to affect any other requirements of the constitution or other laws regarding local government debt, issuance of bonds, use of tax revenues or the grant, lease or sale of land or other property.
Laws 1993, ch. 297, § 13.
NMSA 1978, § 5-10-14 Local Economic Development Act fund
5-10-14. Local Economic Development Act fund
A. The "Local Economic Development Act fund" is created in the state treasury. Income from the fund shall be credited to the fund. Money in the fund shall not revert or be transferred to any other fund at the end of a fiscal year. The department shall administer the fund, and money in the fund is appropriated to the department to pay the cost of administering the fund and for economic development projects pursuant to the Local Economic Development Act. Money in the fund shall be expended on warrants of the department of finance and administration pursuant to vouchers signed by the secretary of economic development.
B. The following may be used to provide public support for certain economic development projects of qualifying entities pursuant to Section 2 [5-10-17 NMSA 1978] of this 2021 act and shall be separately accounted for in the fund:
(1) fifty percent of the tax revenue attributable to the state gross receipts tax and the state compensating tax, as determined pursuant to Subsection A of Section 2 of this 2021 act, and distributed pursuant to Subsection A of Section 5 [7-1-6.67 NMSA 1978] of this 2021 act; and
(2) that portion of the tax revenue attributable to the local option gross receipts tax and county compensating tax imposed by a county and local option gross receipts tax and municipal compensating tax imposed by a municipality dedicated pursuant to Subsection B of Section 2 of this 2021 act and distributed pursuant to Subsection B of Section 5 of this 2021 act.
Laws 2020, ch. 74, § 1; 2021, ch. 3, § 9; 2021 (1st S.S.), ch. 2, § 1.
NMSA 1978, § 5-10-15 State participation in economic development projects; project participation agreement; duties and requirements; economic development department
5-10-15. State participation in economic development projects; project participation agreement; duties and requirements; economic development department
A. The department may participate with local or regional governments in economic development projects that:
(1) provide for:
(a) the purchase, lease, grant, construction, reconstruction, improvement or other acquisition or conveyance of land, buildings or other infrastructure;
(b) rights-of-way infrastructure, including trenching and conduit, for the placement of new broadband telecommunications network facilities;
(c) public works improvements essential to the location or expansion of a qualifying entity;
(d) payments for professional services contracts necessary for local or regional governments to implement a plan or project;
(e) the provision of direct loans or grants for land, buildings or infrastructure;
(f) loan guarantees securing the cost of land, buildings or infrastructure;
(g) grants for public works infrastructure improvements essential to the location or expansion of a qualifying entity and grants or subsidies to cultural facilities;
(h) the purchase of land for a publicly held industrial park or a publicly owned cultural facility;
(i) technical assistance to cultural facilities; or
(j) the construction, rehabilitation or remodeling of a building for use by a qualifying entity; and
(2) that also:
(a) provide new full-time economic base jobs;
(b) are primarily engaged in the sale of goods or commodities at retail if: 1) the department has determined that the retail project would not substantially compete with a specific business already in operation in the state; and 2) the business is located outside a class A county and is located in a municipality with a population of fifteen thousand or less according to the most recent federal decennial census or is located within the unincorporated portion of a county; or
(c) provide extensions or improvements to infrastructure, excluding buildings, on government owned land not obtained through the issuance of industrial revenue bonds pursuant to the Industrial Revenue Bond Act [Chapter 3, Article 32 NMSA 1978] or the County Industrial Revenue Bond Act [Chapter 4, Article 59 NMSA 1978] in a municipality with a population of less than sixty thousand according to the most recent federal decennial census or in an unincorporated area not located within ten miles of the external boundaries of a municipality with a population of sixty thousand or more according to the most recent federal decennial census; provided that the project shall not include a participating qualifying entity; and provided further that the department shall prioritize participation in a project pursuant to this subparagraph based on: 1) the likelihood of creating jobs; 2) the economic impact on the local economy; and 3) contributions from the local or regional government or other New Mexico governmental entity, the federal government or private entities; but
(3) do not include the purchase, lease, grant or other acquisition or conveyance of water rights.
B. If the department participates in an economic development project in which a qualifying entity participates, the department, the local or regional government and the qualifying entity shall enter into a project participation agreement pursuant to this section.
C. If the department participates in an economic development project that does not include a qualifying entity, the department shall not enter into a project participation agreement pursuant to this section, but shall enter into an intergovernmental agreement with the participating local or regional government.
D. The project participation agreement shall require that public support provided for the economic development project shall be in exchange for a substantive contribution from the qualifying entity as determined by the department.
E. The qualifying entity shall provide security to the state and each local or regional government or any other New Mexico governmental entity providing public support for the economic development project. The security shall secure the qualifying entity's obligations based on terms stated in the project participation agreement with the department and the local or regional government and shall reflect a proportional decline in security as the substantive contribution requirements are met by the qualifying entity. The department at the discretion of the secretary of economic development may release at any time the security for that portion of the public support provided by the state.
F. If a qualifying entity fails to perform its substantive contribution, the state, local, regional or other participating New Mexico governmental entity may enforce the project participation agreement to recover its proportional share of that portion of the public support for which the qualifying entity failed to provide a substantive contribution; provided that the recovery shall be:
(1) limited to the amount of public support provided by the governmental entity enforcing the project participation agreement, unless otherwise authorized by another participating governmental entity; and
(2) 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.
G. The project participation agreement shall at a minimum set out:
(1) the contributions to be made by the qualifying entity, the state and the local or regional government or other New Mexico governmental entity;
(2) the security provided to the state and each local or regional government or other New Mexico governmental entity by the qualifying entity in the form of a letter of credit, lien, mortgage or other indenture and the pledge of the qualifying entity's financial or material participation and cooperation to guarantee the qualifying entity's performance pursuant to the project participation agreement;
(3) a schedule for project development and completion, including measurable goals and time limits for those goals;
(4) provisions for performance review and actions to be taken upon a determination that project performance is unsatisfactory; and
(5) provisions allowing the department and the local or regional government or other New Mexico governmental entity to recover that portion of the public support for which the qualifying entity failed to provide a substantive contribution as determined by the department.
Laws 2020, ch. 74, § 2; 2021, ch. 135, § 2.
NMSA 1978, § 5-10-16 Grants to reimburse rent, lease or mortgage payments for certain businesses
5-10-16. Grants to reimburse rent, lease or mortgage payments for certain businesses
A. Prior to January 1, 2023, the department may transfer to the authority funds appropriated by the legislature to the department for the purpose of providing recovery grants to recovery entities pursuant to this section.
B. The department and the authority shall enter into a memorandum of understanding to develop a program for the authority to accept a transfer of funds from the department pursuant to Subsection A of this section, to provide recovery grants to recovery entities, to accept and review applications for recovery grants and to disburse recovery grants to recovery entities. The authority shall require documentation from applicants of employment levels and rent, lease and mortgage payments for taxable year 2020 and subsequent taxable years in which a recovery entity applies for a recovery grant. The authority shall prioritize funding to applicants that had the greatest decline in business revenues between comparable quarters in taxable year 2019 to taxable year 2020. The department shall provide oversight of the program and may set policies and promulgate rules in accordance with this section. The authority may designate one or more application periods and shall review applications received in each period and provide a determination to the applicant within a reasonable amount of time after review. The first application period shall accept applications no later than June 30, 2021, and the last application period shall accept applications no later than December 31, 2021; provided that an application period for funds set aside pursuant to Subsection E of this section shall accept applications no later than June 30, 2022. The authority shall prioritize funding to applicants that had the greatest decline in business revenues between comparable quarters in taxable year 2019 to taxable year 2020.
C. To receive a recovery grant, a recovery entity shall agree to:
(1) use the proceeds of the recovery grant for reimbursement of rent, lease or mortgage obligations of the recovery entity for its business locations within the state of New Mexico;
(2) provide a written certification signed by an appropriate officer of the recovery entity that certifies that:
(a) the officer understands that, pursuant to the Local Economic Development Act, the recovery grant shall be accompanied by new job creation in accordance with department rules and policies and the terms of the agreement issued by the authority to the recovery entity in advance of disbursement of the recovery grant;
(b) all documents submitted in support of the recovery grant application are true and accurate to the best of the officer's knowledge;
(c) the officer has a reasonable basis to believe that, as of the date of a recovery grant application and receipt of any recovery grant, the recovery entity does not expect to permanently cease business operations or file for bankruptcy;
(d) as of the date of a recovery grant application and of receipt of a recovery grant, the recovery entity is current on all obligations pursuant to the Income Tax Act [Chapter 7, Article 2 NMSA 1978], the Corporate Income and Franchise Tax Act [Chapter 7, Article 2A NMSA 1978], the Withholding Tax Act [Chapter 7, Article 3 NMSA 1978], the Gross Receipts and Compensating Tax Act [Chapter 7, Article 9 NMSA 1978] and the Unemployment Compensation Law [Chapter 51 NMSA 1978] applicable to the recovery entity's business operations; and
(e) all recovery grant proceeds will be used for the purpose of payment of rent, lease or mortgage payments of the recovery entity pursuant to the Local Economic Development Act;
(3) provide documentation to the authority demonstrating a decline in business revenues between taxable years 2019 and 2020;
(4) upon request, provide the department and the authority with information relevant to the reporting requirements of the department and the authority pursuant to Subsection H of this section; and
(5) submit an application to the authority for a recovery grant pursuant to rules established by the authority, but no later than June 30, 2022.
D. Up to one hundred thousand dollars ($100,000) in a recovery grant may be provided to each recovery entity in quarterly payments in an amount of up to twenty-five percent of the total amount of the recovery grant awarded to the recovery entity. The department shall promulgate rules to determine the amount of a recovery grant; provided that, for each quarterly payment a recovery entity may be awarded a specified amount for each job created depending on the wages provided and the relative decline in business revenues for taxable year 2020, not to exceed a total of twenty-five thousand dollars ($25,000) per quarter. To remain eligible for additional quarterly payments, a recovery entity shall provide documentation to the department and to the authority demonstrating the following:
(1) the recovery entity remains active and open and can demonstrate a net increase in the number of full-time-equivalent employees relative to the immediately preceding quarter, as submitted quarterly to the workforce solutions department from the date of application to the date of receipt of a recovery grant payment;
(2) the recovery entity is current on state and local tax obligations; and
(3) the recovery entity paid rent, lease or mortgage obligations of the recovery entity for its business locations within the state of New Mexico from the date of application to the present request for a subsequent quarterly payment that exceeds all payments to the recovery entity to date pursuant to this section.
E. If, on the effective date of this section, there remains in effect a public health order that requires businesses to remain closed, the department and the authority shall set aside a portion of the funds available for recovery grants until such time as the public health order ceases to be in effect or is changed to permit all businesses subject to the public health order to be open. The portion set aside shall be estimated, at the discretion of the department and the authority, to represent the number of recovery entities and employees impacted by the public health order, but in no case shall exceed twenty percent of the total funds appropriated pursuant to Section 11 of this 2021 act.
F. If a recovery entity loses eligibility in a quarter, the authority shall set aside funds for the recovery entity to access should the recovery entity become eligible again in a succeeding quarter.
G. Information obtained by the department and the authority regarding individual recovery entity grant applicants shall be confidential and not subject to inspection pursuant to the Inspection of Public Records Act [Chapter 14, Article 2 NMSA 1978]; provided that nothing in this section shall prevent the department and the authority from disclosing broad demographic information and information relating to the total amount of recovery grants made, the total outstanding balance of recovery grants made and the names of the recovery entities that received recovery grants.
H. The department and the authority shall submit an annual report in each year of 2021 through 2023 to the legislature, the legislative finance committee, the New Mexico finance authority oversight committee, the revenue stabilization and tax policy committee and the interim legislative committee concerning economic and rural development. The report shall provide information regarding recovery grants made pursuant to this section. The report shall include:
(1) the total dollar value of recovery grants made to date, along with breakouts of disbursements by quarterly payment number;
(2) the number of recovery entities assisted, in total and by county;
(3) the total number of new jobs created and the total number of employees currently employed by recovery entities that received grants;
(4) the total projected annual payroll for the jobs created;
(5) the total number of recovery grant applications;
(6) the number of recovery entities, if any, that received initial payments but were determined to be ineligible for additional quarterly payments; and
(7) an overview of the industries and types of business entities represented by recovery entities that received recovery grants.
I. As used in this section:
(1) "authority" means the New Mexico finance authority;
(2) "recovery entity" means a corporation, limited liability company, partnership, joint venture, syndicate, association or other person that:
(a) is a business operating in New Mexico with one or more employees but with fewer than seventy-five people employed at any of the business's business locations;
(b) is current on all state or local tax obligations; and
(c) experienced a decline in business revenue between one or more comparable quarters in taxable years 2019 and 2020, as determined by the economic development department and the authority based on documentation provided by the business;
(3) "recovery grant" means a grant disbursed to a recovery entity by the authority from funds provided by the department for the purpose of reimbursement of rent, lease or mortgage payments of the recovery entity pursuant to the Local Economic Development Act; and
(4) "taxable year" means "taxable year" as that term is used in the Income Tax Act or the Corporate Income and Franchise Tax Act, as applicable to a recovery entity.
Laws 2021, ch. 3, § 10.
NMSA 1978, § 5-10-17 Gross receipts tax and compensating tax revenue as public support for certain projects
5-10-17. Gross receipts tax and compensating tax revenue as public support for certain projects
A. A qualifying entity that meets the following requirements may receive public support for the qualifying entity's economic development project from funds in the Local Economic Development Act fund pursuant to Subsection B of Section 5-10-14 NMSA 1978 in an amount equal to fifty percent of the net receipts attributable to the state gross receipts tax and state compensating tax imposed on the expenses related to the construction of the qualifying entity's project, as determined by the department, related to the economic development project and the amount dedicated pursuant to Subsection B of this section; provided that the public support shall be provided for a period of no more than ten years, beginning on the date the applicable project participation agreement with the qualifying entity is executed:
(1) the qualifying entity signs a project participation agreement with the governing body of each local government that has jurisdiction of the area in which the qualifying entity's economic development project is located and the local government has passed an ordinance dedicating local government gross receipts tax revenue pursuant to Subsection B of this section;
(2) the qualifying entity signs a project participation agreement with the department; provided that the department shall not sign the agreement unless the applicable local governments have signed a project participation agreement pursuant to Paragraph (1) of this subsection; and provided further that the project participation agreement shall provide that if, at the end of the ten-year period, the economic development project fails to meet the three-hundred-fifty-million-dollar ($350,000,000) requirement pursuant to Paragraph (3) of this subsection, the department shall seek to recover some or all of the public support provided to the qualifying entity and shall transfer any amount recovered to the general fund and to the contributing local government based on each entity's pro rata share of public support to the economic development project;
(3) the economic development project has a reasonable expectation to incur, within ten years of the date the project participation agreement with the local government and the department is executed, at least three hundred fifty million dollars ($350,000,000) in expenses related to the construction and infrastructure of the project in the state;
(4) the qualifying entity and the economic development project meet all other requirements to receive public support pursuant to the Local Economic Development Act; and
(5) prior to the end of each month, the qualifying entity submits the appropriate documents, including tax documents of the qualifying entity and its contractors submitted to the taxation and revenue department, to the department and to the local governments with which the qualifying entity signed a project participation agreement, on forms and in a manner determined by the department, of the taxable expenses related to the construction of the economic development project for the previous month.
B. A local government may dedicate, by ordinance, fifty percent of the tax revenue attributable to the gross receipts and compensating taxes imposed by the local government on the qualifying entity's receipts for expenses related to the construction of the economic development project to the Local Economic Development Act fund for the purposes provided in Subsection B of Section 5-10-14 NMSA 1978.
C. Within thirty days after execution of a project participation agreement with a qualifying entity, the department shall issue a report to the department of finance and administration and the legislative finance committee that shall identify the qualifying entity intended to receive public support pursuant to this section, the estimated expenses related to the construction of the qualifying entity's project as determined by the department, the location of the project, the amount of public support pledged by the department and each local government for the project pursuant to this section and the amount of any other public support pledged for the project pursuant to the Local Economic Development Act.
D. As soon as practicable, the taxation and revenue department shall implement a rate type to identify gross receipts and compensating taxes reported and paid to the taxation and revenue department for expenses related to the construction of an economic development project. Once implemented, all such gross receipts and compensating taxes shall be reported and paid with that rate type.
E. If the taxation and revenue department has not implemented the rate type provided in Subsection D of this section, and if the requirements of Subsection A of this section have been met, the economic development department and the local governments that signed a project participation agreement with the qualifying entity shall:
(1) review the documents submitted by a qualifying entity pursuant to Paragraph (5) of Subsection A of this section;
(2) estimate the amount equal to fifty percent of the tax revenue attributable to the gross receipts tax and compensating tax imposed on the taxable expenses related to the construction of the economic development project appropriate to:
(a) the local government's gross receipts and compensating taxes if a local government; and
(b) the state gross receipts and compensating taxes if the department;
(3) if a local government, on the first business day of each month, submit the estimated amount and the supporting documents to the department; and
(4) if the department, on or before the twenty-fifth day of December, March, June and September, provide the estimates and any supporting documentation to the taxation and revenue department, on forms and in a manner determined by that department.
F. The taxation and revenue department shall review the amounts estimated pursuant to Subsection E of this section for accuracy and computation, make any necessary corrections or adjustments and make a final determination of the amounts to be distributed from the relevant tax revenue pursuant to Section 5 [7-1-6.67 NMSA 1978] of this 2021 act.
Laws 2021 (1st S.S.), ch. 2, § 2.
Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18447/index.doFetched: 10/20/2026