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 that is controlled
by CHDO, as approved by the Department, may submit an offer;
(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 with a Qualified Nonprofit Organization
or Qualified Entity in that classification. A property may not be
transferred under the ROFR process for less than the Minimum Purchase
Price, but if the sequential negotiation created by statute yields
a higher price, the higher price is permitted.
(f) Satisfaction of ROFR.
(1) A Development Owner that has posted a Property
under the ROFR process is deemed to have satisfied the ROFR requirements
in the following circumstances:
(A) The Development Owner does not receive any bona
fide offers at or above the posted ROFR offer price (or, in the case
of a posted minimum purchase price, at the price yielded by the sequential
negotiation) from a Qualified Nonprofit Organization or Qualified
Entity during the required ROFR posting period;
(B) A bona fide offer from a Qualified Nonprofit Organization
or Qualified Entity is received at or above the posted ROFR offer
price (or, in the case of a posted minimum purchase price, at the
price yielded by the sequential negotiation), the Development Owner
accepts the offer, the Qualified Nonprofit Organization or Qualified
Entity fails to close the purchase, the failure is determined to not
be the fault of the Development Owner, and the Development Owner received
no other bona fide offers from a Qualified Nonprofit Organization
or Qualified Entity during the required ROFR posting period;
(C) A bona fide offer from a Qualified Nonprofit Organization
or Qualified Entity is received at or above the posted ROFR offer
price (or, in the case of a posted minimum purchase price, at the
price yielded by the sequential negotiation), the Qualified Nonprofit
Organization or Qualified Entity is not approved by the Department
during the ownership transfer review due to issues identified during
the Previous Participation Review process pursuant to Chapter 1, Subchapter
C of this title (relating to Previous Participation and Executive
Award Review and Advisory Committee), and the Development Owner received
no other bona fide offers at or above the posted ROFR offer price
(or, in the case of a posted minimum purchase price, at the price
yielded by the sequential negotiation) from a Qualified Nonprofit
Organization or Qualified Entity during the required ROFR posting
period; or
(D) An offer from a Qualified Nonprofit Organization
or Qualified Entity is received at a price below the posted ROFR offer
price, and the Development Owner received no other bona fide offers
from a Qualified Nonprofit Organization or Qualified Entity during
the required ROFR posting period at or above the posted ROFR offer
price; or
(2) A Development Owner with a LURA that identifies
a specific Qualified Nonprofit Organization or Qualified Entity to
be the beneficiary of the ROFR will satisfy the ROFR if:
(A) The identified beneficiary is in existence and
conducting business;
(B) The Development Owner offers the Development to
the identified beneficiary pursuant to the terms of the ROFR;
(C) If the ROFR includes a priority for a certain type
of Qualified Entity (such as a CHDO) to have the first opportunity
make an offer to acquire the Development, the identified beneficiary
meets such classification; and
(D) The identified entity declines to purchase the
Development in writing, and such evidence is submitted to and approved
by the Department.
(g) Non-Satisfaction of ROFR. A Development Owner that
has posted a Property under the ROFR process does not satisfy the
ROFR requirements in the following circumstances:
(1) A bona fide offer from a Qualified Nonprofit Organization
or Qualified Entity is received at or above the posted ROFR offer
price (or, in the case of a posted minimum purchase price, at the
price yielded by the sequential negotiation), and the Development
Owner does not accept the offer;
(2) The LURA identifies a specific Qualified Nonprofit
Organization or Qualified Entity to be the beneficiary of the ROFR,
and such entity no longer exists or is no longer conducting business
and the Development Owner received other bona fide offers at or above
the posted ROFR offer price (or, in the case of a posted minimum purchase
price, at the price yielded by the sequential negotiation) from a
Qualified Nonprofit Organization or Qualified Entity during the ROFR
posting period and fails to accept any of such other offers;
(3) A bona fide offer from a Qualified Nonprofit Organization
or Qualified Entity is received at or above the posted ROFR offer
price (or, in the case of a posted minimum purchase price, at the
price yielded by the sequential negotiation), the Development Owner
accepts the offer, the Qualified Nonprofit Organization or Qualified
Entity fails to close the purchase, the failure is determined to not
be the fault of the Development Owner, the Development Owner received
other bona fide offers from a Qualified Nonprofit Organization or
Qualified Entity during the ROFR posting period and then fails to
accept any of such other offers;
Cont'd... |