Texas Register
(30 TexReg 3691). Sections 33.1,
33.3 - 33.5, and 33.7 - 33.10 are adopted without changes and will not be
republished.
The new sections are adopted in order to implement changes that will effectively
improve the 2006 Private Activity Bond Program and make administrative corrections.
The department received no public comment upon publication of the proposed
rules in the
Texas Register
and received no
comment at the public hearing held by the department on items that relate
directly to the multifamily housing revenue bond rules.
The new sections are adopted pursuant to the authority of the
Texas Government Code, Chapter 2306.
No other code, article or statues are affected by the new sections.
§33.2.Authority.
The Department receives its authority to issue Bonds from Chapter 2306
of the Texas Government Code. All Bonds issued by the Department must conform
to the requirements of the Act. Notwithstanding anything herein to the contrary,
tax-exempt Bonds which are issued to finance the Development of multifamily
rental housing are specifically subject to the requirements of the laws of
the State of Texas, including but not limited to Chapter 2306 and Chapter
1372 of the Texas Government Code relating to Private Activity Bonds, and
to the requirements of the Code (as defined in this chapter).
§33.6.Application Procedures, Evaluation and Approval.
(a)
Application Costs, Costs of Issuance, Responsibility and
Disclaimer. The Applicant shall pay all costs associated with the preparation
and submission of the Application--including costs associated with the publication
and posting of required public notices--and all costs and expenses associated
with the issuance of the Bonds, regardless of whether the Application is ultimately
approved or whether Bonds are ultimately issued. At any stage during the Application
process, the Applicant is solely responsible for determining whether to proceed
with the Application, and the Department disclaims any and all responsibility
and liability in this regard.
(b)
Pre-application. An Applicant who requests financing from
the Department for a Development shall submit a pre-application in a format
prescribed by the Department. Within fourteen (14) days of the Department's
receipt of the pre-application, the Department will be responsible for federal,
state, and local community notifications of the proposed Development. Upon
review of the pre-application, if the Development is determined to be ineligible
for Bond financing by the Department, the Department will send a letter to
the Applicant explaining the reason for the ineligibility. If the Development
is determined to be eligible for Bond financing by the Department, the Department
will score and rank the pre-application based on the Private Activity Bond
Program Scoring Criteria as described in subsection (d) of this section. The
Department will score and rank the pre-application with higher scores ranking
higher within each priority defined by §1372.0321, Texas Government Code.
All Priority 1 Applications will be ranked above all Priority 2 Applications
which will be ranked above all Priority 3 Applications, regardless of score,
reflecting a priority structure which gives consideration to the income levels
of the tenants and the rent levels of the units consistent with Section 2306.359.
This priority ranking will be used throughout the calendar year. In the event
two or more Applications receive the same score, the Department will use,
as a tie-breaking mechanism, a priority first for Applications involving rehabilitation;
then if a tie still exists, the Application with the greatest number of points
awarded for Quality and Amenities for the Development; then if a tie still
exists, the Department will grant preference to the pre-application with the
lower number of net rentable square feet per bond amount requested. Pre-Applications
must meet the threshold requirements as stated in the Private Activity Bond
Program Threshold Requirements as set out in subsection (c) of this section.
The Private Activity Bond Program Threshold Requirements will be posted on
the Department's website. After scoring, the Development and the proposed
financing structure will be presented to the Department's Board for consideration
of a resolution declaring the Department's intent to issue Bonds (the "inducement
resolution") with respect to the Development. Department staff, for good cause,
may recommend that the Board not approve an inducement resolution for an Application.
After Board approval of the inducement resolution, the scored and ranked Applications
will be submitted to the Texas Bond Review Board for its lottery, waiting
list or carryforward processing. The Texas Bond Review Board will draw the
number of lottery numbers that equates to the number of eligible Applications
submitted by the Department for participation in lottery. The lottery numbers
drawn will not equate to a specific Development. The Texas Bond Review Board
will thereafter assign the lowest lottery number drawn to the highest scored
and ranked Application as previously determined by the Department. The Texas
Bond Review Board will issue reservations of allocation for Applications submitted
for the waiting list or carryforward in the order determined by the Department.
The criteria by which a Development may be deemed to be eligible or ineligible
are explained below in subsection (g) of this section, entitled Evaluation
Criteria. The Private Activity Bond Program Scoring Criteria will be posted
on the Department's website. The pre-application shall consist of the following
information:
(1)
Completed Current Uniform Application forms in the format
required by the Department;
(2)
Texas Bond Review Board's Residential Rental Attachment;
(3)
Relevant Development Information;
(4)
Certification of Local Elected Official request for neighborhood
organization information and Public Notification Information;
(5)
Certification and agreement to comply with the Department's
rules;
(6)
Agreement of responsibility of all cost incurred;
(7)
An organizational chart showing the structure of the Applicant
and the ownership structure of any principals of the Applicant;
(8)
Evidence that the Applicant and principals are registered
with the Texas Secretary of State, or if the Applicant has not yet been formed,
evidence that the name of the Applicant is reserved with the Secretary of
State;
(9)
Organizational documents such as partnership agreements
and articles of incorporation, as applicable, for the Applicant and its principals;
(10)
Documentation of non-profit status if applicable; Evidence
of good standing from the Comptroller of Public Accounts of the State of Texas
for the Applicant and its principals; Corporate resumes and individual resumes
of the Applicant and any principals;
(11)
A copy of an executed earnest money contract between the
Applicant and the seller of the Property. For all Applications submitted the
earnest money contract must be in effect at the time of submission of the
application and expire no earlier than December 1 of the year preceding the
applicable program year for lottery Applications and expire no earlier than
120 days after the date of submission for waiting list and carryforward Applications.
The earnest money contract must stipulate and provide for the Applicant's
option to extend the contract expiration date through March 1 of the program
year for lottery Applications or option to extend an additional 120 days from
the initial expiration for waiting list and carryforward Applications, subject
only to the seller's receipt of additional earnest money or extension fees,
so that the Applicant will have site control at the time a reservation of
allocation is granted. If the Applicant owns the Property, a copy of the recorded
warranty deed is required;
(12)
Evidence of zoning appropriate for the proposed use, application
for the appropriate zoning or statement that no zoning is required;
(13)
A local map showing the location of the proposed Property
site;
(14)
A boundary survey or subdivision plat which clearly identifies
the location and boundaries of the subject Property;
(15)
Name, address and telephone number of the Seller of the
Property;
(16)
Construction draw and lease-up proforma for Developments
involving new construction;
(17)
Past two years' operating statements for existing Developments;
(18)
Current market information which includes rental comparisons;
(19)
Documentation of local Section 8 utility allowances;
(20)
Verification/Evidence of delivery of federal, state, and
local community notifications;
(21)
Self-Scoring Criteria; and
(22)
Such other items deemed necessary by the Department per
individual application.
(c)
Pre-Application Threshold Requirements.
(1)
As the Department reviews the Application, the Department
will use the following assumptions, even if not reflected in the Application.
Prequalification Assumptions:
(A)
Development Feasibility:
(i)
Debt Coverage Ratio must be greater than or equal to 1.10;
(ii)
Annual Expenses must be at least $3,800 per Unit or $3.75
per square foot;
(iii)
Deferred Developer Fees are limited to 80% of Developer's
Fees;
(iv)
Contractor Fee are limited to 6% of direct costs plus
site work cost;
(v)
Overhead is limited to 2% of direct costs plus site work
cost;
(vi)
General Requirements are limited to 6% of direct costs
plus site work cost;
(vii)
Developer Fees cannot exceed 15% of the project's Total
Eligible Basis
(B)
Construction Costs Per Unit Assumption. The acceptable
range is $55 to 65 per Unit for general population developments and $55 to
$75 for elderly developments (Acquisition/Rehab developments are exempt from
this requirement);
(C)
Interest Rate Assumption. 6.00% for 30 year financing and
6.75% for 40 year financing;
(D)
Size of Units (Acquisition/Rehab developments are exempt
from this requirement);
(i)
One bedroom Unit must be greater than or equal to 650 square
feet for family and 550 square feet for senior Units.
(ii)
Two bedroom Unit must be greater that or equal to 900
square feet for family and 750 square feet for senior Units.
(iii)
Three bedroom Unit must be greater than or equal to 1,000
square feet for family.
(2)
Appropriate Zoning. Evidence of appropriate zoning for
the proposed use or evidence of application made and pending decision;
(3)
Executed Site Control. Properly executed and escrow receipted
site control through 12/1/05 with option to extend through 3/1/06 for lottery
Applications or 120 days from date of Application submission with option to
extend an additional 120 days from the initial expiration for waiting list
and carryforward Applications;
(4)
Previous Participation and Authorization to Release Credit
Information (located in the uniform application);
(5)
Current Market Information (must support affordable rents);
(6)
Completed current TDHCA Uniform Application and application
exhibits;
(7)
Completed Multifamily Rental Worksheets;
(8)
Certification of Local Elected Official request for neighborhood
organization information and Public Notification Information (see application
package);
(9)
Relevant Development Information (see application package);
(10)
Completed 2006 Bond Review Board Residential Rental Attachment;
(11)
Signed letter of Responsibility for All Costs Incurred;
(12)
Signed Mortgage Revenue Bond Program Certification Letter;
(13)
Evidence of Paid Application Fees ($1,000 to TDHCA, $1,500
to Vinson and Elkins and $5,000 to Bond Review Board);
(14)
Boundary Survey or Plat;
(15)
Local Area map showing the location of the Property and
Community Services/Amenities within a three (3) mile radius;
(16)
Utility Allowance from the Appropriate Local Housing Authority;
(17)
Organization Chart with evidence of Entity Registration
or Reservation with the Secretary of State; and
(18)
Required Notification. Evidence of notifications shall
include a copy of the exact letter and other materials that were sent to the
individual or entity, a sworn affidavit stating that they made all the required
notifications prior to the deadlines and a copy of the entire mailing list
(including names and complete addresses) of all the recipients. Proof of notification
must not be older than three months prior to the date of Application submission
date. Notification must be sent to all the following individuals and entities
(If the QAP and Rules in effect for the program year for which the Bond and
Housing Tax Credit applications are submitted reflect a notification process
that is different from the process listed below, then the QAP and Rules will
override the notification process listed below):
(A)
State Senator and Representative that represents the community
containing the development;
(B)
Presiding Officer of the governing body of any municipality
containing the development and all elected members of that body (Mayor, City
Council members);
(C)
Presiding Officer of the governing body of the county containing
the development and all elected members of that body (County Judge and/or
Commissioners);
(D)
School District Superintendent of the school district containing
the development;
(E)
Presiding Officer of the School Board of Trustees of the
school district containing the development; and
(F)
Evidence must be provided that a letter requesting information
on neighborhood organizations on record with the state or county in which
the Development is to be located and whose boundaries contain the proposed
Development site and meeting the requirements of "Local Elected Official Notification"
as outlined in the Application was sent no later than twenty-one (21) days
prior to the Application submission to the local elected official for the
city or if located outside of a city, then the county where the Development
is proposed to be located. If the Development is located in a jurisdiction
that has district based local elected officials, or both at-large and district
based local elected officials, the notification must be made to the city council
member or county commissioner representing that district; if the Development
is located in a jurisdiction that has only at-large local elected official,
the notification must be made to the mayor or county judge for the jurisdiction.
A copy of the reply letter or other official third-party documentation from
the local elected official must be provided. For urban/exurban areas, entities
identified in the letters from the local elected official whose listed address
has the same zip code as the zip code for the Development must be provided
with written notification, and evidence of the notification must be provided.
If any other zip codes exist within a half mile of the Development site, then
all entities identified in the letters with adjacent zip codes must also be
provided with written notification, and evidence of that notification must
be provided. For rural areas, all entities identified in the letters whose
listed address is within a half mile of the proposed Development site must
be provided with written notification, and evidence of that notification must
be provided. If no response is received from the local elected official by
seven (7) days prior to Application submission then the Applicant must submit
a statement attesting to that fact in the format provided by the Department
as part of the Application.
(d)
Pre-Application Scoring Criteria.
(1)
Construction Cost Per Unit includes: site work, contractor
profit, overhead, general requirements and contingency. Calculation will be
hard costs per square foot of net rentable area. Must be greater than or equal
to $60 per square foot (1 point) (Acquisition/Rehab will automatically receive
(1 point)).
(2)
Size of Units. Average size of all Units combined in the
development must be greater than or equal to 950 square foot for family and
must be greater than or equal to 750 square foot for elderly (5 points). (Acquisition/Rehab
developments will automatically receive 5 points).
(3)
Period of Guaranteed Affordability for Low Income Tenants.
Add 10 years of affordability after the extended use period for a total affordability
period of 40 years (1 point).
(4)
Quality and Amenities ((maximum 35 points) Acquisition/Rehab
(with no demolition/new construction) will receive double points not to exceed
35 points)). (If there are changes to the Application prior to closing that
have an adverse affect on the score and ranking order and that would have
resulted in the Application being placed below another Application in the
ranking, the Department will terminate the Application and return the reservation
to the Texas Bond Review Board (with the exception of changes to deferred
developer's fees and support or opposition points). Substitutions in amenities
will be allowed as long as the overall score is not affected). Applications
in which Developments provide specific qualities and amenities at no extra
charge to the tenant will be awarded points as follows:
(A)
Laundry Connections (2 points);
(B)
Self-cleaning or continuous cleaning ovens (1 point);
(C)
Microwave Ovens (in each Unit) (1 point);
(D)
Refrigerator with icemaker (1 point);
(E)
Laundry equipment (washer and dryers) for each Unit (3
points);
(F)
Storage Room of approximately nine (9) square feet or greater
(does not have to be in the unit but must be on the property) (1 point);
(G)
Covered entries (1 point);
(H)
Nine foot ceilings (1 point);
(I)
Covered patios or covered balconies (1 point);
(J)
Covered Parking (at least one per Unit) (3 points);
(K)
Garages (equal to at least 35% of Units) (5 points);
(L)
Ceiling Fans in all rooms except bathrooms and kitchens
(light with ceiling fan in all bedrooms) (1 point);
(M)
75% or Greater Masonry (includes rock, stone, brick, stucco
and cementious board product; excludes EIFS) (5 points);
(N)
Thirty year architectural shingle roofing (1 point);
(O)
Use of energy efficient alternative construction materials
(structurally insulated panels) with wall insulation at a minimum of R-20
(3 points);
(P)
R-15 Walls/R-30 Ceilings (rating of wall system) (3 points);
(Q)
14 SEER HVAC or evaporative coolers in dry climates for
new construction or radiant barrier in the attic for the rehabilitation (3
points);
(R)
Energy Star or equivalently rated kitchen appliances (2
points);
(S)
Playground and Equipment or Covered Community Porch (3
points);
(T)
BBQ Grills and Tables (one each per 50 Units) or Walking
Trail (minimum length of 1/4 mile) (3 points);
(U)
Full Perimeter Fencing with controlled gate access (3 points);
(V)
Computers with internet access/Business Facilities (8 hour
availability) (2 points);
(W)
Game Room or TV Lounge (2 points);
(X)
Furnished and staffed children's activity center (3 points);
(Y)
Horseshoe pit, putting green or shuffleboard court (only
qualified elderly developments) (2 points);
(Z)
Workout Facilities or Library (with comparable square footage
as workout facilities) (2 points).
(5)
Tenant Services (Tenant Services shall include only direct
costs (tenant services contract amount, supplies for services, internet connections,
initial cost of computer equipment, etc.). Indirect costs such as overhead
and utility allocations may not be included).
(A)
$10.00 per Unit per month (10 points);
(B)
$7.00 per Unit per month (5 points);
(C)
$4.00 per Unit per month (3 points).
(6)
Zoning appropriate for the proposed use or no zoning required
(appropriate zoning for the intended use must be in place at the time of application
submission date, September 6, 2005 (Applications submitted for lottery) or
first Monday of each month (Applications submitted for waiting list and carryforward),
in order to receive points) (5 points).
(7)
Proper Site Control (as defined in §33.3(21) of this
title, control through 12/01/05 with option to extend through 03/01/06 (Applications
submitted for lottery) or 120 days after the applicable submission date with
option to extend an additional 120 days after the initial expiration (Applications
submitted for waiting list and carryforward) (all information must be correct
at the time of the Application submission date, September 6, 2005 (Applications
submitted for lottery) or first Monday of each month (Applications submitted
for waiting list or carryforward), in order to receive points) (5 points).
(8)
Development Support/Opposition (Maximum net points of +24
to -24. Each letter will receive a maximum of +3 to -3. All letters received
by 5:00 PM, October 7, 2005 (Applications submitted for lottery) or fourteen
(14) days prior to the date of the Board meeting at which the Application
will be considered (Applications submitted for waiting list and carryforward)
will be used in scoring).
(A)
Texas State Senator and Texas State Representative (maximum
+6 to -6 points);
(B)
Presiding officer of the governing body of any municipality
containing the Development and the elected district member of the governing
body of the municipality containing the Development (maximum +6 to -6 points);
(C)
Presiding officer of the governing body of the county containing
the Development and the elected district member of the governing body of the
county containing the Development (if the site is not in a municipality, these
points will be doubled) (maximum +6 to -6 points);
(D)
Local School District Superintendent and Presiding Officer
of the Board of Trustees for the School district containing the Development
(maximum +6 to -6 points).
(9)
Penalties for Missed Deadlines in the Previous Year's Bond
and/or Tax Credit program year. (This includes approved and used extensions)
(-1 point with maximum 3 point deduction).
(10)
Local Political Subdivision Development Funding Commitment
that enables additional Units for the Very Low Income (CDBG, HOME or other
funds through local political subdivisions) (must be greater than or equal
to 2% of the bond amount requested and must provide at least 5% of the total
Development Units at or below 30% AMFI or an additional 5% of the total Development
Units if the Applicant has chosen category Priority 1B on the residential
rental attachment) (2 points).
(11)
Proximity to Community Services/Amenities (Community services/amenities
within three (3) miles of the site. A map must be included with the Application
showing a three (3) mile radius notating where the services/amenities are
located) (maximum 12 points)
(A)
Full service grocery store or supermarket (1 point);
(B)
Pharmacy (1 point);
(C)
Convenience store/mini-market (1 point);
(D)
Retail Facilities (Target, Wal-Mart, Home Depot, etc.)
(1 point);
(E)
Bank/Financial Institution (1 point);
(F)
Restaurant (1 point);
(G)
Indoor public recreation facilities (community center,
civic center, YMCA) (1 point);
(H)
Outdoor public recreation facilities (park, golf course,
public swimming pool) (1 point)
(I)
Fire/Police Station (1 point);
(J)
Medical Facilities (hospitals, minor emergency, doctor
or dentist offices) (1 point);
(K)
Public Library (1 point);
(L)
Public Transportation (1/2 mile from site) (1 point);
(M)
Public School (only one school required for point and only
eligible with general population developments) (1 point) .
(12)
Proximity to Negative Features (adjacent to or within
300 feet of any part of the Development site boundaries). A map must be included
with the application showing where the feature is located. Developer must
provide a letter stating there are none of the negative features listed below
within the stated area if that is correct. (maximum -20 points)
(A)
Junkyards (5 points);
(B)
Active Railways (excluding light rail) (5 points);
(C)
Heavy industrial/manufacturing plants (5 points);
(D)
Solid Waste/Sanitary Landfills (5 points);
(E)
High Voltage Transmission Towers (5 points).
(13)
Acquisition/Rehabilitation Developments will receive thirty
(30) points. This will include the demolition of old buildings and new construction
of the same number of units if allowed by local codes or less units to comply
with local codes (not to exceed 252 total units).
(14)
Preservation Developments will receive ten (10) points.
This includes rehabilitation proposals on properties which are nearing expiration
of an existing affordability requirement within the next two years or for
which the there has been a rent restriction requirement in the past ten years.
Evidence must be provided.
(e)
Financing Commitments. After approval by the Board of the
inducement resolution, and before submission of a final application, the Applicant
will be solely responsible for making appropriate arrangements with financial
institutions which are to be involved with the issuance of the Bonds or the
financing of the Development, and to begin the process of obtaining firm commitments
for financing from each of the financial institutions involved.
(f)
Final Application. An Applicant who elects to proceed with
submitting a final Application to the Department must submit the Volumes I
and II of the Application prior to receipt of a reservation of allocation
from the Texas Bond Review Board and the Volumes III and VI of the Application
and such supporting material as is required by the Department at least sixty
(60) days prior to the scheduled meeting of the Board at which the Development
and the Bond issuance are to be considered, unless the Department directs
the Applicant otherwise in writing. The final application must adhere to the
Department's QAP and Rules in effect for the program year for which the Bond
and Housing Tax Credit applications are submitted. The Department may determine
that supporting materials listed in paragraphs (1) - (42) of this subsection
shall be provided subsequent to the final Application deadline in accordance
with a schedule approved by the Department. Failure to provide any supporting
materials in accordance with the approved schedule may be grounds for terminating
the Application and returning the reservation to the Texas Bond Review Board.
The final application and supporting material shall consist of the following
information:
(1)
A Public Notification Sign shall be installed on the proposed
Development site no later than thirty (30) days after the submission of Volume
I and II of the Tax Credit Application to the Department (pictures and invoice
receipts must be submitted as evidence of installation within thirty (30)
days of the submission). The sign must be at least four (4) feet by eight
(8) feet in size and be located within twenty (20) feet of, and facing, the
main road adjacent to the site. The sign shall be continuously maintained
on the site until the day the TDHCA Board takes final action on the Application
for the development. The information and lettering on the sign must meet the
requirements identified in the Application. As an alternative to installing
a Public Notification Sign and at the same required time, the Applicant may
instead, at the Applicant's Option, mail written notification to all addresses
located within the footage distance required by the local municipality zoning
ordinance or 1,000 feet, if there is no local zoning ordinance or if the zoning
ordinance does not require notification, of any part of the proposed Development
site. This written notification must include the information otherwise required
for the sign. If the Applicant chooses to provide this mailed notice in lieu
of signage, the final Application must include a map of the proposed Development
site and mark the 1,000 foot or local ordinance area showing street names
and addresses; a list of all addresses the notice was mailed to; an exact
copy of the notice that was mailed; and a certification that the notice was
mailed through the U.S. Postal Service and stating the date of mailing. The
Applicant must mail notice to any public official that changed from the submission
of the pre-application to the submission of the final application and any
neighborhood organization that is known and was not notified at the time of
the pre-application submission. No additional notification is required unless
the Applicant submitted a change in the Application that reflects a total
Unit increase greater than 10%, an increase greater than 10% for any given
AMFI, or a change in the population being served (elderly, general population
or transitional);
(2)
Completed Uniform Application forms in the format required
by the Department;
(3)
Certification of no changes from the pre-application to
the final application. If there are changes to the Application that have an
adverse affect on the score and ranking order and that would have resulted
in the application being placed below another application in the ranking,
the Department will terminate the Application and return the reservation to
the Texas Bond Review Board (with the exception of changes to deferred developer's
fees and support or opposition points);
(4)
Certification and agreement to comply with the Department's
rules;
(5)
A narrative description of the Development;
(6)
A narrative description of the proposed financing;
(7)
Firm letters of commitment from any lenders, credit providers,
and equity providers involved in the transaction;
(8)
Documentation of local Section 8 utility allowances;
(9)
Site plan;
(10)
Unit and building floor plans and elevations;
(11)
Complete construction plans and specifications;
(12)
General contractor's contract;
(13)
Completion schedule;
(14)
Copy of a recorded warranty deed if the Applicant already
owns the Property, or a copy of an executed earnest money contract between
the Applicant and the seller of the Property if the Property is to be purchased;
(15)
A local map showing the location of the Property;
(16)
Photographs of the Site;
(17)
Survey with legal description;
(18)
Flood plain map;
(19)
Evidence of zoning appropriate for the proposed use from
the appropriate local municipality that satisfies one of these subparagraphs
(A) - (C) of this paragraph:
(A)
no later than fourteen (14) days before the Board meets
to consider the transaction, the Applicant must submit to the Department written
evidence that the local entity responsible for initial approval of zoning
has approved the appropriate zoning and that they will recommend approval
of the appropriate zoning to the entity responsible for final approval of
zoning decisions;
(B)
provide a letter from the chief executive officer of the
political subdivision or another local official with appropriate jurisdiction
stating that the Development is located within the boundaries of a political
subdivision which does not have a zoning ordinance;
(C)
a letter from the chief executive officer of the political
subdivision or another local official with appropriate jurisdiction stating
the Development is permitted under the provision of the zoning ordinance that
apply to the location of the Development or that there is not a zoning requirement.
(20)
Evidence of the availability of utilities;
(21)
Copies of any deed restrictions which may encumber the
Property;
(22)
A Phase I Environmental Site Assessment performed in accordance
with the Department's Environmental Site Assessment Rules and Guidelines (§1.35
of this title);
(23)
Title search or title commitment;
(24)
Current tax assessor's valuation or tax bill;
(25)
For existing Developments, current insurance bills;
(26)
For existing Developments, past two (2) fiscal year end
development operating statements;
(27)
For existing Developments, current rent rolls;
(28)
For existing Developments, substantiation that income-based
tenancy requirements will be met prior to closing;
(29)
A market study performed in accordance with the Department's
Market Analysis Rules and Guidelines (§1.33 of this title);
(30)
Appraisal of the existing or proposed Development performed
in accordance with the Department's Underwriting Rules and Guidelines (§1.32
of this title);
(31)
Statement that the Development Owner will accept tenants
with Section 8 or other government housing assistance;
(32)
An organizational chart showing the structure of the Applicant
and the ownership structure of any principals of the Applicant;
(33)
Evidence that the Applicant and principals are registered
with the Texas Secretary of State, as applicable;
(34)
Organizational documents such as partnership agreements
and articles of incorporation, as applicable, for the Applicant and its principals;
(35)
Documentation of non-profit status if applicable;
(36)
Evidence of good standing from the Comptroller of Public
Accounts of the State of Texas for the Applicant and its principals;
(37)
Corporate resumes and individual resumes of the Applicant
and any principals;
(38)
Latest two (2) annual financial statements and current
interim financial statement for the Applicant and its principals;
(39)
Latest income tax filings for the Applicant and its principals;
(40)
Resolutions or other documentation indicating that the
transaction has been approved by the general partner;
(41)
Resumes of the general contractor's and the property manager's
experience; and
(42)
Such other items deemed necessary by the Department per
individual application.
(g)
Evaluation Criteria. The Department will evaluate the Development
for eligibility at the time of pre-application, and at the time of final Application.
If there are changes to the Application that have an adverse affect on the
score and ranking order and that would have resulted in the Application being
placed below another Application in the ranking, the Department will terminate
the Application and return the reservation to the Texas Bond Review Board
(with the exception of changes to deferred developer's fees and support or
opposition points). The Development and the Applicant must satisfy the conditions
set out in paragraphs (1) - (6) of this subsection in order for a Development
to be considered eligible:
(1)
The proposed Development must further meet the public purposes
of the Department as identified in the Act.
(2)
The proposed Development and the Applicant and its principals
must satisfy the Department's Underwriting Rules and Guidelines (§1.32
of this title). The pre-application must include sufficient information for
the Department to establish that the Underwriting Guidelines can be satisfied.
The final Application will be thoroughly underwritten according to the Underwriting
Rules and Guidelines (§1.32 of this title).
(3)
The Development must not be located on a site determined
to be unacceptable for the intended use by the Department.
(4)
Any Development in which the Applicant or principals of
the Applicant have an ownership interest must be found not to be in Material
Non-Compliance under the compliance Rules in effect at the time of pre-application
submission. Any corrective action documentation affecting the Material Non-compliance
status score must be submitted to the Department no later than thirty (30)
days prior to final application submission.
(5)
Neither the Applicant nor any principals of the Applicant
is, at the time of Application:
(A)
barred, suspended, or terminated from procurement in a
state or federal program or listed in the List of Parties Excluded from Federal
Procurement or Non-Procurement Programs; or
(B)
has been convicted of a state or federal crime involving
fraud, bribery, theft, misrepresentation, misappropriation of funds, or other
similar criminal offenses within fifteen (15) years; or
(C)
is subject to enforcement action under state or federal
securities law, action by the NASD, subject to a federal tax lien, or the
subject of an enforcement proceeding with any governmental entity; or
(D)
neither applicant nor any principals of the applicant have
a development under their ownership or control with a Material Non-compliance
score as set out in the Department's Compliance Monitoring Policies and Procedures
(§60.1 of this title); or
(E)
otherwise disqualified or debarred from participation in
any of the Department's programs.
(6)
Neither the Applicant nor any of its principals may have
provided any fraudulent information, knowingly false documentation or other
intentional or negligent misrepresentation in the Application or other information
submitted to the Department.
(h)
Bond Documents. After receipt of the final Application,
bond counsel for the Department shall draft Bond documents which conform to
the state and federal laws and regulations which apply to the transaction.
(i)
Public Hearings; Board Decisions. For every Bond issuance,
the Department will hold a public hearing in accordance with §2306.0661,
Texas Government Code and §147(f) of the Code, in order to receive comments
from the public pertaining to the Development and the issuance of the Bonds.
Publication of all notices required for the public hearing shall be at the
sole expense of the Applicant. The Board's decisions on approvals of proposed
Developments will consider all relevant matters. Any topics or matters, alone
or in combination, may or may not determine the Board's decision. The Department's
Board will consider the following topics in relation to the approval of a
proposed Development:
(1)
The Development Owner market study;
(2)
The location, including supporting broad geographic dispersion;
(3)
The compliance history of the Development Owner;
(4)
The financial feasibility;
(5)
The inclusive capture rate as described under Chapter 1, §1.32(g)(2)
of this title;
(6)
The Development's proposed size and configuration in relation
to the housing needs of the community in which the Development is located;
(7)
The Development's proximity to other low income Developments;
(8)
The availability of adequate public facilities and services;
(9)
The anticipated impact on local school districts, giving
due consideration to the authorized land use;
(10)
Zoning and other land use considerations;
(11)
Fair Housing law, including affirmatively furthering fair
housing;
(12)
The Applicant and/or Developer's efforts to engage the
neighborhood;
(13)
The housing needs of the community, area, region and state;
(14)
Consistency with local needs, including consideration
of revitalization or preservation needs;
(15)
Providing integrated, affordable housing for individuals
and families with different levels of income;
(16)
Meeting a compelling housing need;
(17)
Any matter considered by the Board to be relevant to the
approval decision and in furtherance of the Department's purposes and the
policies of Chapter 2306, Texas Government Code.
(j)
Approval of the Bonds.
(1)
Subject to the timely receipt and approval of commitments
for financing, an acceptable evaluation for eligibility, the satisfactory
negotiation of Bond documents, and the completion of a public hearing, the
Board, upon presentation by the Department's staff, will consider the approval
of the Bond issuance, final Bond documents and, in the instance of privately
placed Bonds, the pricing of the Bonds. The process for appeals and grounds
for appeals may be found under §1.7 and §1.8 of this title. The
Department's conduit housing transactions will be processed in accordance
with the Texas Bond Review Board rules Title 34, Part 9, Chapter 181, Subchapter
A and Chapter 1372, Texas Government Code. The Bond issuance must receive
an approving opinion from the Department's bond counsel with respect to the
legality and validity of the Bonds and the security therefore, and in the
case of tax-exempt Bonds, with respect to the excludability from gross income
for federal income tax purposes of interest on the Bonds.
(2)
Alternative Dispute Resolution Policy. In accordance with §2306.082,
Texas Government Code, it is the Department's policy to encourage the use
of appropriate alternative dispute resolution procedures ("ADR") under the
Governmental Dispute Resolution Act, Chapter 2009, Texas Government Code,
to assist in resolving disputes under the Department's jurisdiction. As described
in Chapter 154, Civil Practices and Remedies Code, ADR procedures include
mediation. Except as prohibited by the Department's ex parte communications
policy, the Department encourages informal communications between Department
staff and applicants, and other interested persons, to exchange information
and informally resolve disputes. The Department also has administrative appeals
processes to fairly and expeditiously resolve disputes. If at anytime an applicant
or other person would like to engage the Department in an ADR procedure, the
person may send a proposal to the Department's Dispute Resolution Coordinator
(fax: (512) 475-3978). For additional information on the Department's ADR
Policy, see the Department's General Administrative Rule on ADR at 10 Texas
Administrative Code §1.17.
(k)
Local Permits. Prior to the closing of the Bonds, all necessary
approvals, including building permits, from local municipalities, counties,
or other jurisdictions with authority over the Development must have been
obtained or evidence that the permits are obtainable subject only to payment
of certain fees must be provided to the Department.
(l)
Closing. Once all approvals have been obtained and Bond
documents have been finalized to the respective parties' satisfaction, the
Bond transaction will close. Upon satisfaction of all conditions precedent
to closing, the Department will issue Bonds in exchange for payment thereof.
The Department will then loan the proceeds of the Bonds to the Applicant and
disbursements of the proceeds may begin.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on August 1, 2005.
TRD-200503185
Edwina P. Carrington
Executive Director
Texas Department of Housing and Community Affairs
Effective date: August 21, 2005
Proposal publication date: June 24, 2005
For further information, please call: (512) 475-4595