| (ii) The Development Owner's name, address, individual
contact name, phone number, and email address;
(iii) Information about tenants' rights to purchase
the Development through the ROFR;
(iv) The length of the ROFR posting period;
(v) The ROFR offer price;
(vi) A physical description of the Development, including
the total number of Units and total number of Low-Income Units; and
(vii) Contact information for the Department staff
overseeing the Development's ROFR application.
(4) Documentation evidencing any contractual ROFR between
the Development Owner and a Qualified Nonprofit Organization or Qualified
Entity, along with evidence that such Qualified Nonprofit Organization
or Qualified Entity is in good standing in the state of its organization;
(5) Documentation verifying the ROFR offer price of
the Property:
(A) If the Development Owner receives an offer to purchase
the Property from any buyer other than a Qualified Entity or Qualified
Nonprofit Organization that the Development Owner would like to accept,
the Development Owner may execute a sales contract, conditioned upon
satisfaction of the ROFR requirement, and submit the executed sales
contract to establish fair market value; or
(B) If the Development Owner chooses to establish fair
market value using an appraisal, the Development Owner must submit
an appraisal of the Property completed during the last three months
prior to the date of submission of the ROFR request, establishing
a value for the Property in compliance with Chapter 11, Subchapter
D of this title (relating to Underwriting and Loan Policy) in effect
at the time of the request. The appraisal should take into account
the existing and continuing requirements to operate the Property under
the LURA and any other restrictions that may exist. Department staff
will review all materials within 30 calendar days of receipt. If,
after the review, the Department does not agree with the fair market
value proposed in the Development Owner's appraisal, the Department
may order another appraisal at the Development Owner's expense; or
(C) If the LURA requires valuation through the Minimum
Purchase Price calculation, submit documentation verifying the calculation
of the Minimum Purchase Price as described in subsection (b)(2) of
this section regardless of any existing offer or appraised value;
(6) Description of the Property, including all amenities;
(7) Copies of all documents imposing income, rental
and other restrictions (non-TDHCA), if any, applicable to the operation
of the Property;
(8) A current title commitment or policy not older
than six months prior to the date of submission of the ROFR request
or the most recent title policy along with a title endorsement or
nothing further certificate not older than six months prior to the
date of submission of the ROFR request;
(9) The most recent Physical Needs Assessment, pursuant
to Tex. Gov't Code §2306.186(e) conducted by a Third-Party. If
the PNA/SCR identifies the need for critical repairs that significantly
impact habitability and tenant safety, the identified repairs and
replacements must be resolved to the satisfaction of the Department
before the Development will be considered eligible to proceed with
a Right of First Refusal Request;
(10) Copy of the monthly operating statements, including
income statements and balance sheets for the Property for the most
recent 12 consecutive months (financial statements should identify
amounts held in reserves);
(11) The three most recent consecutive annual operating
statements (audited would be preferred);
(12) Detailed set of photographs of the Property, including
interior and exterior of representative units and buildings, and the
Property's grounds;
(13) Current and complete rent roll for the Property;
and
(14) If any portion of the land or improvements is
leased for other than residential purposes, copies of the commercial
leases.
(d) Posting and offers. Within 30 business days of
receipt of all required documentation, the Department will review
the submitted documents and notify the Development Owner of any deficiencies.
During that time, the Department will notify any Qualified Entity
or as applicable any Qualified Nonprofit Organization identified by
the Development Owner as having a contractual ROFR of the Development
Owner's intent to sell. Once any deficiencies are resolved and the
Development Owner and Department come to an agreement on the ROFR
offer price of the Property, the Department will list the Property
for sale on the Department's website and notify entities registered
to the email list maintained by the Department of the availability
of the Property at a price as determined under this section. The Department
will notify the Development Owner when the Property has been listed.
The ROFR posting period commences on the date the Property is posted
for sale on the Department's website. During the ROFR posting period,
a Qualified Nonprofit Organization or Qualified Entity can submit
an offer to purchase as follows:
(1) if the LURA requires a 90 day ROFR posting period
with no priority for any particular kind of Qualified Nonprofit Organization
or tenant organization, any Qualified Nonprofit Organization or tenant
organization may submit an offer to purchase the property; or
(2) If the LURA requires a two year ROFR posting period,
a Qualified Nonprofit Organization may submit an offer to purchase
the Property as follows:
(A) During the first six months of the ROFR posting
period, only a Qualified Nonprofit Organization that is a Community
Housing Development Organization (CHDO) under 24 CFR Part 92, or that
is 100% owned by a CHDO, as approved by the Department, may submit
an offer;
(B) During the next six months of the ROFR posting
period, only a Qualified Nonprofit Organization as described by Tex.
Gov't Code §2306.6706, or that is 100% owned by Qualified Nonprofit
Organization as described by Tex. Gov't Code §2306.6706, or a
tenant organization may submit an offer; and
(C) During the final 12 months of the ROFR posting
period, any Qualified Nonprofit Organization may submit an offer;
or
(3) If the LURA requires a 180-day ROFR posting period,
a Qualified Entity may submit an offer to purchase the Property consistent
with the subparagraphs of this paragraph.
(A) During the first 60 days of the ROFR posting period,
only a Qualified Entity that is:
(i) a CHDO under 24 CFR Part 92, or to an entity that
includes a CHDO as one of its controlling members or general partners,
as approved by the Department, may submit an offer. In accordance
with 24 CFR Part 92, Developments committed HOME CHDO funding on or
after August 23, 2013, and still within the Federal Affordability
Period must have a CHDO or its wholly owned entity (as applicable)
as its only controlling entities and no other entities are eligible;
(ii) if the public housing authority or public facility
corporation owns the fee title to the Development Owner's leasehold
estate:
(I) a public housing authority; or
(II) a public facility corporation created by a public
housing authority under Chapter 303, Local Government Code; or
(iii) controlled by an entity described by either clause
(i) or (ii) of this subparagraph.
(B) During the second 60 days of the ROFR posting period,
only a Qualified Entity as described by Tex. Gov't Code §2306.6706,
or that is controlled by Qualified Entity as described by Tex. Gov't
Code §2306.6706, or a tenant organization such may submit an
offer.
(C) During the final 60 days of the ROFR posting period,
any Qualified Entity may submit an offer.
(4) If the LURA does not specify a required ROFR posting
timeframe or is unclear on the required ROFR posting timeframe and
the required ROFR value is determined by the Minimum Purchase Price
method, any Development that received a tax credit allocation prior
to September 1, 1997, is required to post for a 90-day ROFR period,
and any Development that received a tax credit allocation on or after
September 1, 1997, and until September 1, 2015, is required to post
for a two year ROFR, unless the LURA is amended under §10.405(b),
or after September 1, 2015, is required to post for a 180-day ROFR
period as described in Tex. Gov't Code, §2306.6726.
(e) Acceptance of offers. A Development Owner may accept
or reject any offer received during the ROFR posting period; provided
however, that to the extent the LURA gives priority to certain classifications
of Qualified Nonprofit Organizations or Qualified Entities to make
offers during certain portions of the ROFR posting period, the Development
Owner can only negotiate a purchase contract with such classifications
of entities during their respective periods. For example, during the
CHDO priority period, the Development Owner may only accept an offer
from and enter into negotiations Cont'd... |
