34 TAC §§190.2, 190.3, 190.5, 190.8
The Texas Bond Review Board proposes amendments to §§190.2,
190.3, 190.5, 190.8. The program rules are amended to comply with changes
in Chapter 1372, Government Code, as amended. Generally, the amendments will
allow more applications to receive a reservation and clarify procedures.
James T. Buie, Executive Director of the Bond Review Board, has determined
that for each year of the first five years that the amended and added sections
are in effect, there will be negligible fiscal implications for state and
local government as a result of enforcing or administering the amended sections.
James T. Buie, Executive Director of the Bond Review Board, has also determined
that for each year of the first five years the amended sections are in effect,
the public benefits anticipated as a result of enforcing the amended sections
will be an increase in the number of applicants receiving a reservation. There
will be no effect on small businesses. There is no anticipated economic cost
to persons who are required to comply with the proposed sections.
Comments may be submitted to James T. Buie, Texas Bond Review Board, P.O.
Box 13292, Austin, Texas 78711-3292.
The amended sections are proposed Chapter 1372, Government Code,
as amended, which gives the Texas Bond Review Board the authority to adopt
rules governing the implementation and administration of the allocation of
the state's ceiling on private activity bonds.
Chapter 1372, Government Code is affected by this proposed amendment.
§190.2.Allocation and Reservation System.
(a)
(No change.)
(b)
On or after October 10 of the year preceding the applicable
program year, the board will accept applications for reservation from issuers
authorized to issue private activity bonds. The board shall not grant a reservation
to any issuer prior to January 2 of the program year. If two or more issuers
file an application for reservation of the state ceiling in any of the categories
described in §1372.022, the board shall conduct a lottery establishing
the priority order of each such application for reservation. Once the priority
order for all applications for reservation filed on or before October 20 of
the year preceding the applicable program year is established, reservations
for each issuer within the categories described in §1372.022 (b)(2),
(3), and (6), shall be granted in the order of priority established by such
lottery. [
Each issuer of state voted issues granted a reservation initially
shall be granted a reservation date which is the first business day of the
program year.
] If more than 10 applications by issuers, other than issuers
of state voted issues, are granted a reservation initially, an additional
lottery will be held immediately to determine staggered reservation dates
for such issuers.
Each issuer of state voted issues granted a reservation
initially may participate in the additional lottery or shall be granted a
reservation date which is the first business day of the program year.
(c)
The order of priority for reservations by housing finance
corporations in the category described in §1372.022(b)(1), Government
Code, shall further be determined as provided in §1372.032.
(1)-(2)
(No change.)
(3)
Within each category of priority, reservations shall be
granted in reverse calendar year order of the most recent closing of qualified
mortgage bonds by each housing finance corporation, with the most recent closing
being the last to receive a reservation and with those housing finance corporations
that have never received a reservation for mortgage revenue bonds being the
first to receive a reservation, and, in the case of closings occurring on
the same date, reservations shall be granted in an order determined by the
board by lot. The most recent closing applicable to:
(A)-(B)
(No change.)
(C)
all other housing finance corporations, is the most recent
closing of qualified mortgage bonds by the housing finance corporation. In
no event will a housing finance corporation or its sponsoring local government
unit be allowed to achieve an advantage in the determination of its last closing
date by creating
, dissolving, or withdrawing
[
or disbanding
] from a housing finance corporation.
(d)-(f)
(No change.)
(g)
If any issuer which was subject to the lottery conducted
as described in subsection (b) of this section does not, prior to September
1 of the program year, receive the amount requested by such issuer in its
application for reservation filed on or before October 20 of the preceding
year, and if state ceiling becomes available on or after September 1 of the
program year, such issuer, subject to the provisions of §1372.037, Government
Code, shall receive a reservation for any state ceiling becoming available
on or after September 1 of the program year, in the order of priority established
by such lottery, without regard to the provisions of
§
§1372.032
, 1372.0321,
and [
§
]1372.033, Government Code.
(h)-(j)
(No change.)
(k)
The amount of the state's ceiling that has not been reserved
prior to December 1 of the program year and any amount previously reserved
that becomes available on or after that date because of the cancellation of
a reservation or any other reason, may be designated, by the board, as carryforward
for the carryforward purposes outlined in the Code through submission of the
application for carryforward and any other required documentation. If the
120-day or 180-day period, as applicable, expires on or after December 24th
of a program year in which a reservation was issued, an issuer is required
to close on its bonds before December 24th. However, if an issuer's applicable
period expires after December 31st, the issuer may elect to notify the board
in writing before December 24th of their intent to carry forward the reservation
and their expected bond closing date. The granting by the board of a carryforward
designation through this described process, will allow an issuer the remaining
balance of their 120- or 180-day period as applicable to close on their bond
by the expected closing date. If any issuer makes this election and does not
close the bonds on or before the expected closing date, the amount of carryforward
designation will be
administered by the board in compliance with the
requirements of the code
[
added to the current private activity
program year by the category of bonds in which the election was made. Once
available, the carryforward volume cap will be reserved within the appropriate
category before any other cap within that category is reserved
].
(l)
(No change.)
(m)
Issuers will be eligible for carryforward according to
the priority classifications listed in the Act, specifically §1372.062[
(b) and §1372.042(c)
].
§190.3.Filing Requirements for Applications for Reservation.
(a)
(No change.)
(b)
Application Filing. The issuer shall submit one original
and one copy of the application for reservation. Each application must be
accompanied by the following:
(1)-(2)
(No change.)
(3)
a copy of the inducement resolution or other similar official
action taken by the issuer with respect to the bonds and the project which
are the subject of the application, certified by an officer of the issuer;
or a copy of the certified resolution of the issuer authorizing the filing
of the application for reservation
, in either case certified with an
original signature by an officer of the issuer. If bond counsel is the acting
authorized representative of the issuer, bond counsel must be identified as
such by issuer resolution;
(4)
a copy of the issuer's articles of incorporation as certified
by the secretary of state of Texas and by-laws, including amendments thereto
and restatements thereof, or alternatively, a certification
with an original
signature by an authorized representative of the issuer
that there have
been no amendments to the articles of incorporation or by-laws since the last
submission of these items to the board;
(5)
a copy of the issuer's certificate of continued existence
from the secretary of state of Texas dated within 30 days of submission of
application
, an issuer's certificate of good standing is not an acceptable
substitution for this requirement;
(6)-(8)
(No change.)
(9)
if unexpended proceeds, including transferred proceeds
representing unexpended proceeds, other than prepayments exist from a prior
issue or issues of bonds, other than a state-voted issue or an issue by TDHCA,
or TAFA, issued by the issuer or on behalf of the issuer, or based on the
issuer's population, for the same stated purpose for which the bonds are the
subject of this application, a definite and binding financial commitment agreement
must accompany the application in such form as the board finds acceptable,
to expend the unexpended proceeds by the later of 12 months after the date
of receipt by the board of an application for reservation or December 31 of
the program year for which the application is being filed. For purposes of
this paragraph, the commitment by lenders to originate and close loans within
a certain period of time shall be deemed a definite and binding agreement
to expend bond proceeds within such period of time and any additional period
of time during which such origination period may be extended under the terms
of such agreement; provided that any extension provision may be amended, prior
to the date on which the bond authorization requirements described in subsection
(c) of this section must be satisfied, to provide that such period shall not
be extended beyond the later of 12 months after the date of receipt by the
board of an application for reservation or December 31 of the program year
for which the application is being filed. For purposes of this paragraph,
issuers of qualified student loan bonds authorized by §53.47, Education
Code, may satisfy the requirements of §1372.028(c)
(3)(F)
[
(f)
] by, in lieu of a definite and binding agreement, providing with
the application evidence as certified by the issuer that the issuer has purchased,
in each of the last three calendar years, qualified student loans in amounts
greater than or equal to the amount of the unexpended proceeds;
(10)-(11)
(No change.)
(12)
a qualified mortgage bond issuer that submits an application
for reservation as described in §1372.032, Government Code, shall provide
a statement certifying to the most recent closing of qualified mortgage bonds
determined as provided in §190.2(c)(3) of this title, and the most recent
date of a reservation received for mortgage revenue bonds and state the government
unit(s) for which the local population was based for the issuance of bonds
or for receipt of a reservation; and
for said issuers who have received
an allocation of volume cap for the purposes of issuing qualified mortgage
bonds within the six years prior to the date of application, a statement on
the form prescribed by the Board as to the utilization percentage relating
to its most recent allocation calculated in accordance with §1372.0261;
(13)
(No change.)
(14)
bond counsel must be specified
in the application for reservation of allocation; issuer's counsel is not
an acceptable substitute;
(15)
The borrower must be specified in the
application for reservation of allocation. The borrower may be identified
as a to-be-formed entity only if the application for reservation of allocation
specifies a related entity or an entity that will be a component of the to-be-formed
entity as borrower and clearly provides for the substitution of such to-be-formed
entity as the borrower;
(16)
For qualified residential rental project
issues where the borrower is an entity or to-be-formed entity that is designated
or intends to seek designation as a Community Housing Development Organization
(CHDO) for the purpose of seeking property tax abatement, that designation
or intent to seek designation must be specified on Application for Reservation
of Allocation.
(c)
Bond authorization requirements. Not later than 35 calendar
days after an issue's reservation date, the [
issuer shall submit to the
] board
or Comptroller of Public Accounts, as applicable, must
be in receipt of the following from the issuer
:
(1)-(4)
(No change.)
(5)
if applicable, an amended agreement pursuant to subsection
(b)
(9)
[
(8)
] of this section;
(6)
(No change.)
(7)
if the borrower was originally
identified as a to-be-formed entity, the final formation of the borrower must
be identified as part of the submission and must meet the specifications set
forth in the application for reservation of allocation. No changes will be
permitted in the Borrower after the 35th day after the date of reservation.
(d)
Closing fee. The remaining two-thirds of the fee must be
paid simultaneously with closing on the bonds. The [
issuer should submit
the fee to the
] board
shall be in receipt of the fee from the issuer
as confirmed by the Comptroller of Public Accounts
not later than the
fifth business day after the day on which the bonds are closed.
(e)-(f)
(No change.)
(g)
Application restrictions.
(1)
(No change.)
(2)
Project substitutions will not be allowed after the application
for reservation has been delivered to the board
, except to change the
unit mix of residential rental projects if determined necessary by the applicant
upon receipt of a market analysis or upon acceptance of a partial reservation.
(3)-(5)
(No change.)
(6)
For a qualified residential
rental project issue, the Residential Rental Attachment contained in the Application
packet for Reservation of Allocation must correctly reflect the regional designation
of the project's location at the time of the lottery. If it is found to be
incorrect on or after the lottery date, the project will be disqualified.
(7)
For a qualified residential rental project,
an applicant may amend the priority status down to a lower priority from a
higher priority only if done before January 1 of each program year by submitting
a letter to the Bond Review Board explaining the change, with an amendment
attached. An applicant may not ever amend the priority status of a residential
rental project to a higher priority once the application has been submitted
to the Board.
(8)
Qualified residential rental projects
submitted post-lottery will be placed after all qualified residential rental
projects submitted prior to the lottery, regardless of priority designation.
§190.5.Consideration of Qualified Applications by the Board.
(a)
All fees required by the Act and the rules must be submitted
under separate cover by overnight delivery or messenger to the lockbox address
as described in §190.8(c) of this title (relating to Notices, Filings,
and Submissions). Each check must be accompanied by a fee verification form
as prescribed by the board. The Comptroller of Public Accounts shall note
the receipt of the check on the fee verification form and forward the form
to the board. [
All checks must be received by the Comptroller of Public
Accounts within 24 hours of the receipt of corresponding documents by the
board.
] If the fee is not received in a timely manner, the corresponding
filing will not be considered to be a complete filing, and with respect to
a filing pursuant to §190.3(a) or (c) of this title (relating to Filing
Requirements for Applications for Reservation), the reservation will be cancelled.
(b)-(e)
(No change.)
(f)
If at any time none of the state's ceiling remains available
for certificates of reservation in a specific category, but additional amounts
become available in such specific category before June 1 of the program year
because of cancellations or any other reason, those amounts shall be aggregated
and reservations shall be granted from that category on June 1 of the program
year to qualified applications in an order determined
by priority and
by lot number with respect to those applications having such numbers,
and otherwise by date and time of receipt by the board. If any portion of
state ceiling becomes available after June 1 of the program year and before
August
15
[
25
] of the program year in any specific
category those amounts shall be aggregated and reservations shall be granted
from that category on August
15
[
25
] of the program year
to qualified applications in an order determined by lot number with respect
to those applications having such numbers, and otherwise by date and time
of receipt by the board. The board may grant a reservation at any time on
or after January 2 if the amount of state ceiling available in any category
exceeds the amount of state ceiling applied for in that category by the next
applicant.
(g)-(i)
(No change.)
§190.8.Notices, filings, and Submissions.
(a)
[
Certificates of reservation and other notices and
written communications from the board shall be deemed to have been given when
duly deposited in the United States Mail, first class with all postage prepaid.
] Certificates of reservation may, at the request of the borrower, be
picked up by hand or delivered by courier or other delivery service, in any
case at the expense of the borrower or issuer and shall be deemed to have
been given when received by the courier or delivery service.
Other notices
and written communications from the board shall be deemed to have been given
when sent via electronic mail.
(b)-(d)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 20, 2002.
TRD-200203879
Jim Buie
Executive Director
Texas Bond Review Board
Earliest possible date of adoption: August 4, 2002
For further information, please call: (512) 463-9890