American Recovery and Reinvestment Act of 2009 Tax Credit Assistance Program (TCAP)

On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009 ("ARRA"). Title XII of ARRA appropriated $2.250 billion for a grant program to provide funds for capital investments in Low-Income Housing Tax Credit (LIHTC) projects. Pursuant to a formula based allocation, New York State's share of the appropriation is $252,659,616.

On May 4, 2009, the U.S. Department of Housing and Urban Development ("HUD") issued guidance to state housing credit agencies setting forth the submission requirements, eligible uses of funds, and program requirements for this grant program, known as the Tax Credit Assistance Program ("TCAP"). In order to access TCAP funds, the guidance required state housing credit agencies, including the New York State Division of Housing and Community ("DHCR"), to submit a packet to HUD by no later June 3, 2009 providing certain information on how TCAP funds will be administered.

HUD's guidance required state housing credit agencies to make their draft selection process and criteria for TCAP funds available to the public via their websites and accept comments from the public for a period of not less than five days. This public comment period must have taken place prior to the submission required by June 3, 2009.

Consistent with the guidance provided by HUD, DHCR published its draft selection process and criteria for TCAP funds on its website and accepted public comment for the five business day period of May 20 to May 27, 2009. DHCR evaluated the public comment received during that period and submitted an application packet to HUD on June 2, 2009 providing information on how TCAP funds will be administered.

On June 16^th 2009 HUD approved DHCR's request for the full $253 million in TCAP funds and on June 23, 2009 DHCR executed a grant agreement with HUD.

TCAP Eligibility Criteria

Pursuant to the plan approved by HUD, in order to be eligible for TCAP funding, projects must have received an award of 9% or 4% LIHC during the period of October 1, 2006 through September 30, 2009 ("eligible time period"). DHCR defines an "award of LIHCs" to have occurred as of the date of the letter informing a successful applicant that a specific dollar amount of LIHC will be allocated upon satisfactory completion of that project ("Award Letter").

Pursuant to the above standards, DHCR will consider the following types of 9% LIHC projects for TCAP awards:

• Projects awarded 9% LIHC in 2007 or 2008: DHCR currently has a pipeline of 49 projects that have received reservations of 9% LIHC totaling more than $34 million. These projects, which received 9% LIHC awards from DHCR in 2007 and 2008 pursuant to the competitive application process described above, have not yet qualified for a carryover allocation.

• 2008 9% LIHC Waitlist Projects: Competitive applications were submitted in 2008 for these projects, but the projects were not initially selected for an award of 9% LIHC due to insufficient funding availability. Pursuant to the QAP, DHCR places these projects on a waitlist in the event that funding subsequently becomes available.

• 2009 9% LIHC Applications: Pursuant to a NOCA and RFP issued in November 2008, DHCR received 108 applications requesting, in the aggregate, annual 9% LIHC allocations of more than $100 million.

In addition, consistent with the QAP, applicants requesting 4% credit that filed applications with DHCR prior to March 1, 2008 may be considered for TCAP funding. Only those projects that submitted a timely application and received an award of 4% LIHC during the period of October 1, 2006 through September 30, 2009 will be considered eligible for TCAP financing. In evaluating applications for 4% LIHC pursuant to the QAP, DHCR considers the operating economics of proposed projects, reviews the financing and development costs for reasonableness, and determines the minimum amount of credit necessary for the financial feasibility of the proposed project.

TCAP Selection Process and Criteria

As described above, only projects that have received an "award of LIHCs" during the eligible time period will be considered for TCAP funding.

DHCR will give priority to requests for TCAP funding that demonstrate project readiness, defined as projects that are expected to expend 75% of their TCAP award by February 16, 2011, and 100% by February 16, 2012.

In making such a determination of readiness, the following factors will be considered:

1. Funding Commitments
   The extent to which all other funding commitments have been obtained.

2. Local Approvals
   The extent to which all approvals necessary to start construction have been obtained, including but not limited to rezoning, the granting of variances, the availability of water and sewer services to the project, subdivision approval, and project tax abatement approval.

3. Environmental Approvals
   The extent to which all necessary environmental approvals have been obtained.

4. Site Control
   The extent to which site control for the project has been secured.

5. Development Team Capacity
   The extent to which the project development team's track record in completing prior LIHC projects demonstrates the capacity necessary to complete the project within the eligible time period.

6. Status of Construction Documents
   The extent to which the project has finalized plans and specifications, general contractor's contract and other construction-related documents.

The amount of TCAP to be awarded to these LIHC projects will be determined by DHCR based on a consideration of factors consistent with the agency's existing Equity Loss guidelines, parameters for award increases outlined in the agency's Capital Programs Manual and the project underwriting criteria set forth in the QAP.

HFA Selection Process and Criteria

• HFA selection process

• HFA TCAP Information Webpage

HPD Selection Process and Criteria

• HPD selection process

• HPD TCAP Information Webpage

TCAP Davis Bacon Requirements

• Questions on Davis Bacon related to TCAP can be directed to [email protected].

• HUD Guidance to assist TCAP grantees to understand and comply with various TCAP requirements

• HUD Guidance to assist TCAP grantees to understand and comply with Davis Bacon requirements

TCAP Nominal LIHC Term Sheet

• Nominal LIHC Term Sheet

TCAP Administration

Consistent with an appropriation enacted by the New York State Legislature as part of the FY 09-10 budget, DHCR is authorized to utilize the New York State Housing Trust Fund Corporation ("HTFC"), a public benefit corporation, to administer TCAP. HTFC currently administers numerous State and federal programs for the State of New York, including the federal HOME program.

Required Environmental Reviews for TCAP

ARRA requires that all projects receiving TCAP funding comply with the environmental review requirements of the National Environmental Policy Act, pursuant to Section 288 of the HOME Investment Partnership Act. DHCR, in coordination with HUD, conducted a programmatic review for the entire TCAP allocation to New York State. The programmatic review was based on the obligation of DHCR to conduct site-specific environmental reviews at the time that projects are identified as eligible to receive a TCAP funding commitment from DHCR.

On April 9 and 12, 2009, DHCR published a "Combined Notice of Finding of No Significant Impact (FONSI) and Intent to Request Release of Funds" in ten newspapers across New York State. DHCR also posted the "TCAP Programmatic Environmental Review Record" on their website, to encourage public comment. On June 17, 2009, HUD issued their Authority to Use Grant Funds, which certified that the requirements under 24 CFR Part 58 of HUD environmental review regulations had been satisfied.

Each project specific Environmental Review Record and Environmental Clearance Letter will be posted to the DHCR website as soon as they have been completed.

• NYS TCAP Environmental Review

Sub-Grant Agreements

In addition, the New York State FY 09-10 enacted budget authorized DHCR to transfer TCAP funding to other New York State housing credit agencies, including the New York State Housing Finance Agency ("HFA") and the New York City Department of Housing Preservation and Development ("HPD").

Pursuant to a sub-grant agreement executed on July 9, 2009, DHCR has provided a $50 million sub-grant of the TCAP funds to HFA. The HFA sub-grant agreement was amended on July 30, 2009 and the sub-grant amount increased to $65 million. Pursuant to a sub-grant agreement executed on June 24, 2009, DHCR provided a sub-grant of $85 million in TCAP funds to HPD. HFA and HPD will separately administer their TCAP sub-grants pursuant to all pertinent federal requirements.

Below are the selection process and criteria to be used by HFA and HPD to be used in administering TCAP funds, as well as the links to the TCAP websites for those agencies.