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Presentation, discussion, and possible action on a request for return and reallocation of tax credits under 10 TAC §11.6(5) related to Credit Returns Resulting from Force Majeure Events for Inn Town Lofts
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RECOMMENDED ACTION
recommendation
WHEREAS, Inn Town Lofts was awarded 9% housing tax credits during the 2021 Competitive Housing Tax Credit cycle;
WHEREAS, the Development Owner executed a Carryover Allocation Agreement that included certifications stating each building receiving an allocation would be placed in service by December 31, 2023;
WHEREAS, the Development Owner has requested an extension to the placement-in-service deadline under 10 TAC §11.6(5), related to Credit Returns Resulting from Force Majeure Events;
WHEREAS, the Department lacks authority to extend federal placement-in-service deadlines and may only reset such deadlines by requiring the credits to be returned and immediately reallocated to the Development, as permitted solely under the force majeure provision of the Qualified Allocation Plan (QAP); and
WHEREAS, the Development Owner has submitted documentation demonstrating that a qualifying force majeure event has occurred;
NOW, therefore, it is hereby
RESOLVED, that the request to treat the matter under the force majeure provisions of 10 TAC §11.6(5) is approved, and that the 2021 Qualified Allocation Plan, Uniform Multifamily Rules, and the 2025 Program Calendar shall be applicable to the Development.
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BACKGROUND
|
Development |
Inn Town Lofts |
|
Target Population |
General |
|
HTC Award |
$1,453,902 |
|
City |
Lubbock |
|
Total Units |
56 |
|
HTC Units |
56 |
|
Initial Year of Award |
2021 |
|
Extension Requested |
Six months |
Inn Town Lofts is a 56-unit development located in Lubbock, Lubbock County. The development received an award of 9% Housing Tax Credits in 2021 and has since been approved for force majeure treatment in 2022 and supplemental credits in 2023. As a result, the current deadline to place in service in December 31, 2025.
The Development proposes the adaptive reuse of a historic Lubbock hotel and an adjacent new construction component. After experiencing significant delays due to Covid-19 and market volatility, the project closed and began construction in July of 2024. The Development is currently 75% complete. While the new construction building is on track to a timely completion, the adaptive reuse component is delayed due to extended state, and federal historic review processes. While these reviews were anticipated, the final approvals have taken significantly longer than originally projected. Additionally, the Applicant has reported 111 lost days due to weather delays and a City of Lubbock building permit comment that has created a delay in securing the final Certificate of Occupancy. The owner is requesting a six-month extension in an abundance of caution, but anticipates completing construction by the second quarter of 2026.
APPLICABLE RULE
Under 10 TAC §11.6(5), a Development Owner may return credits and receive a reallocation outside the standard allocation process if the return is the result of a qualifying force majeure event occurring prior to issuance of IRS Form(s) 8609. Pursuant to 10 TAC §11.6(5), the Department’s Governing Board may approve execution of a Carryover Allocation Agreement for the current program year with the Development Owner that returned the credits, but only if the following conditions are met:
(A) The credits were returned as a result of "Force Majeure" events that occurred before issuance of Forms 8609. Force Majeure events are the following sudden and unforeseen circumstances outside the control of the Development Owner: acts of God such as fire, tornado, flooding, significant and unusual rainfall or subfreezing temperatures, or loss of access to necessary water or utilities as a direct result of significant weather events; explosion; vandalism; orders or acts of military authority; unrelated party litigation; changes in law, rules, or regulations; national emergency or insurrection; riot; acts of terrorism; supplier failures; or materials or labor shortages. If a Force Majeure event is also a presidentially declared disaster, the Department may treat the matter under the applicable federal provisions. Force Majeure events must make construction activity impossible or materially impede its progress.
Staff has reviewed this request and determined that weather delays and extended historic preservation approvals constitute a force majeure event under the rules.
IMPACT OF BOARD DECISION
If the Board approves the request:
• The credits will be returned and reallocated, with the 2021 Qualified Allocation Plan, Uniform Multifamily Rules, and the 2025 Program Calendar applicable to the Development.
• A new Carryover Allocation Agreement will be executed.
• The new placed-in-service deadline will be June 30, 2026.
If the Board denies the request:
• The current placed-in-service deadline of December 31, 2025, remains in place.
• The Development Owner may either meet the existing deadline, return the credits, or have the award terminated for failing to meet the deadline.
• Returned credits will first be reallocated within the original subregion in accordance with 10 TAC §11.6(2). If no pending applications are eligible within the subregion, the credits will be added to the statewide collapse for reallocation.
This request requires the Department to make corresponding edits to its ERA2 Contract, LURA, and Loan Documents.
RECOMMENDATION
Staff recommends approval of the request to return and reallocate tax credits for Inn Town Lofts under the force majeure provisions of 10 TAC §11.6(5).