| (6) Minority Owned Business Report (HTC only) showing
the attempt to ensure that at least 30% of the construction and management
businesses with which the Applicant contracts in connection with the
Development are Minority Owned Businesses as required and further
described in Tex. Gov't Code §2306.6734.
(c) LURA Origination.
(1) The Development Owner must request origination
of the HTC LURA as directed in the Post Award Activities Manual. The
Department will draft a LURA for the Development Owner that will impose
the income and rent restrictions identified in the Development's final
underwriting report and other representations made in the Application,
including but not limited to specific commitments to provide tenant
services, to lease to Persons with Disabilities, and/or to provide
specific amenities. After origination, the Department executed LURA
and all exhibits and addendums will be sent to the Development Owner
to execute and record in the real property records for the county
in which the Development is located. A copy of the fully executed,
recorded LURA must be returned to the Department no later than the
end of the first year of the Credit Period. In general, no Housing
Tax Credits are allowed to be issued for a building unless there is
a properly executed and recorded LURA in effect at the end of the
first year of the Credit Period. Nothing in this section negates a
Development Owner's responsibility for full compliance with §42(h)(6)
of the Code. The Department will not issue IRS Form(s) 8609 until
it receives a copy of the fully executed, recorded LURA.
(2) LURAs for Direct Loan awardees will be prepared
by the Department's Legal Division and executed at loan closing.
(d) Cost Certification (Competitive and Non-Competitive
HTC, and related activities only). The Department conducts a feasibility
analysis in accordance with §42(m)(2)(C)(i)(III) of the Code
and Chapter 11, Subchapter D of this title (relating to Underwriting
and Loan Policy) to make a final determination on the allocation of
Housing Tax Credits. For Non-Competitive HTC Developments, the amount
of tax credits reflected in the IRS Form(s) 8609 may be greater or
less than the amount set forth in the Determination Notice based upon
the Department's determination as of each building's placement in
service. Any increase of tax credits will only be permitted if it
is determined necessary by the Department, as required by §42(m)(2)(D)
of the Code through the submission of the Cost Certification package.
Increases to the amount of tax credits that exceed 120% of the amount
of credits reflected in the Determination Notice must be approved
by the Board. Increases to the amount of tax credits that do not exceed
120% of the amount of credits reflected in the Determination Notice
may be approved administratively by the Executive Director or designee.
All credit increases are subject to the Tax-Exempt Bond Credit Increase
Request Fee as described in Chapter 11, Subchapter E of this Part
(relating to Fee Schedule, Appeals, and other Provisions). The requirements
for cost certification include those identified in paragraphs (1)
- (3) of this subsection.
(1) For Competitive HTC Developments, Development Owners
must file cost certification documentation no later than January 15
following the first year of the Credit Period, as defined in §42(f)(1)
of the Code. For Tax-Exempt Bond Developments, Development Owners
must file cost certification documentation no later than May 15 following
the first year of the Credit Period.
(2) The Department will evaluate the cost certification
documentation and notify the Development Owner of any additional required
documentation needed to complete the review. The Department reserves
the right to request additional documents or certifications as it
deems necessary or useful in the determination of the Development's
eligibility for a final Housing Tax Credit allocation amount. Any
communication issued to the Development Owner pertaining to the cost
certification documentation may also be sent to the syndicator. In
accordance with Tex. Gov't Code §2306.6724(g), IRS Form(s) 8609
will be issued no later than the 120th day following the date on which
the Department receives a complete cost certification package, and
the Development Owner has fulfilled any requests for information.
(3) The cost certification package must meet the conditions
as stated in subparagraphs (A) - (G) of this paragraph. The Development
Owner has:
(A) Provided evidence that all buildings in the Development
have been placed in service by:
(i) December 31 of the year the Commitment was issued;
(ii) December 31 of the second year following the year
the Carryover Allocation Agreement was executed; or
(iii) the approved Placed in Service deadline;
(B) Provided a complete final cost certification package
in the format prescribed by the Department. As used herein, a complete
final cost certification package means a package that meets all of
the Department's criteria with all required information and exhibits
listed in clauses (i) - (xxxiv) of this subparagraph, and pursuant
to the Post Award Activities Manual. If any item on this list is determined
to be unclear, deficient, or inconsistent with the cost certification
review completed by the Department, a Request for Information (RFI)
will be sent to the Development Owner. Requirements include:
(i) Owner's signed and notarized Statement of Certification
verifying the CPA firm's licenses and validity, including any restrictions;
(ii) Owner Summary & Organization Charts for the
Owner, Developer, and Guarantors;
(iii) Evidence of Qualified Nonprofit or CHDO Participation;
(iv) Certification and evidence of Historically Underutilized
Business (HUB) Participation;
(v) Development Team List;
(vi) Development Summary with Architect's Certification;
(vii) Development Change Documentation;
(viii) As Built Survey;
(ix) A copy of the fully executed Closing Statement
for each parcel of land and/or buildings purchased and included in
the Development;
(x) Development Owner's Title Policy for the Development;
(xi) Title Policy Update;
(xii) Placement in Service;
(xiii) Evidence of Placement in Service;
(xiv) Architect's Certification of Completion Date
and Date Ready for Occupancy (for Developments located in areas where
Certificates of Occupancy (COs) are not issued by a local government
or rehabilitation Developments that cannot provide COs);
(xv) Auditor's Certification of Acquisition/Rehabilitation
Placement in Service Election;
(xvi) Independent Auditor's Report;
(xvii) Independent Auditor's Report of Bond Financing;
(xviii) Development Cost Schedule;
(xix) Contractor's Application for Final Payment (G702/G703)
for the General Contractor, all prime subcontractors, Affiliated Contractors,
and Related Party Contractors;
(xx) Additional Documentation of Offsite Costs;
(xxi) Rent Schedule;
(xxii) Utility Allowances;
(xxiii) Annual Operating Expenses;
(xxiv) 30 Year Rental Housing Operating Pro Forma;
(xxv) Current Operating Statement in the form of a
trailing twelve month statement;
(xxvi) Current Rent Roll;
(xxvii) Summary of Sources and Uses of Funds;
(xxviii) Final Limited Partnership Agreement with all
amendments and exhibits;
(xxix) All Loan Agreements and Promissory Notes (except
for Agreements and Notes issued directly by the Department);
(xxx) Architect's Certification of Accessibility Requirements;
(xxxi) Development Owner Assignment of Individual to
Compliance Training;
(xxxii) TDHCA Compliance Training Certificate (not
older than two years from the date of cost certification submission);
(xxxiii) TDHCA Final Inspection Clearance Letter or
evidence of submitted final inspection request to the Compliance Division
(IRS Form(s) 8609 will not be issued without a TDHCA Final Inspection
Clearance Letter); and
(xxxiv) Other Documentation as Required, including
but not limited to conditions to be satisfied at cost certification
as reflected in the Development's latest Underwriting Report;
(C) Informed the Department of and received written
approval for all amendments, extensions, and changes in ownership
relating to the Development in accordance with §10.405 of this
subchapter (relating to Amendments and Extensions) and §10.406
of this subchapter (relating to Ownership Transfers (§2306.6713));
(D) Paid all applicable Department fees, including
any past due fees;
(E) Met all conditions noted in the Department underwriting
report, Determination Notice, and Commitment;
(F) Corrected all issues of noncompliance, including
but not limited to noncompliance status with the LURA (or any other
document containing an Extended Low-income Housing Commitment) or
the program rules in effect for the subject Development, as described
in this chapter. Developments in the corrective action period and/or
with any uncorrected issues of noncompliance outside of the corrective
action period will not be issued IRS Form(s) 8609s until all events
of noncompliance are corrected or otherwise approved by the Executive
Director or designee; and
(G) Completed an updated underwriting evaluation in
accordance with Chapter 11, Subchapter D of this Part based on the
most current information at the time of the review.
|
| Source Note: The provisions of this §10.401 adopted to be effective February 3, 2022, 47 TexReg 266; amended to be effective February 1, 2023, 48 TexReg 348; amended to be effective February 27, 2024, 49 TexReg 1054 |
