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Oregon Bulletin

February 1, 2014

Oregon Housing and Community Services Department, Chapter 813

Rule Caption: Amends and consolidates the common terms, policies and procedures used within department programs and rules

Adm. Order No.: OHCS 18-2013

Filed with Sec. of State: 12-18-2013

Certified to be Effective: 12-18-13

Notice Publication Date: 12-1-2013

Rules Adopted: 813-005-0020, 813-005-0030, 813-005-0040, 813-005-0050, 813-005-0060, 813-005-0070

Rules Amended: 813-005-0001, 813-005-0005, 813-005-0016

Rules Repealed: 813-005-0001(T), 813-005-0005(T), 813-005-0016(T), 813-005-0020(T), 813-005-0030(T), 813-005-0040(T), 813-005-0050(T), 813-005-0060(T), 813-005-0070(T)

Subject: The general rules have been amended to include common terms, policies and procedures with respect to the administration of the department and its programs.

Rules Coordinator: Sandy McDonnell—(503) 986-2012

813-005-0001

General Purpose

OAR chapter 813, division 5, is promulgated to accomplish the purpose of describing certain common terms, policies and procedures with respect to the administration of the Housing and Community Services Department.

Stat. Auth.: ORS 90.630, 90.771 - 90.775, 90.800 - 90.840, 183, 315.271, 317.097, 446.525 - 446.543, 456.515 - 456.725, 458.210 - 458.365, 458.405 - 458.460, 458.505 - 458.740, 566.310 - 566.350 & 757.612 - 757.617

Stats. Implemented: ORS 90.630, 90.771 - 90.775, 90.800 - 90.840, 183, 315.271, 317.097, 446.525 - 446.543, 456.515 - 456.725, 458.210 - 458.365, 458.405 - 458.460, 458.505 - 458.740, 566.310 - 566.350 & 757.612 - 757.617

Hist.: OHCS 1-2005(Temp), f. & cert. ef. 8-4-05 thru 1-31-06; OHCS 3-2006, f. & cert. ef. 1-31-06; OHCS 14-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 18-2013, f. & cert. ef. 12-18-13

813-005-0005

Definitions

(1) Terms used in OAR chapter 813 have the meanings given them in the Act, in this section, otherwise in OAR chapter 813 or in other applicable law, unless the context indicates to the contrary. Such terms need not be capitalized. Undefined terms are intended to be read consistently with their normal usage unless the context indicates otherwise.

(2) Pursuant to ORS 456.555(5)(b) the Housing and Community Services Department by administrative rule, must identify and distinguish between housing programs and community services programs. Any program administered by the department (as principal and not agent) that is not listed in this subsection, does not principally involve the financing, regulation, maintenance or support of housing or home ownership or otherwise defined in statute or in this chapter as a housing program is a “community service program.” Accordingly, the following programs administered by the department are housing programs:

(a) Multi-Unit Housing Program (OAR 813-010);

(b) Rental Housing Program (OAR 813-012);

(c) Oregon Rural Rehabilitation Program (OAR 813-015);

(d) Single-Family Mortgage Program (OAR 813-020);

(e) Elderly Housing Program (OAR 813-030);

(f) Pass-Through Revenue Bond Financing Program (OAR 813-035);

(g) Pre-Development Program (OAR 813-038);

(h) Farmworker Housing Development Account (OAR 813-039);

(i) Seed Money Advance Program (OAR 813-040);

(j) Farmworker Housing Tax Credit Program (OAR 813-041);

(k) Housing Development Program (OAR 813-042);

(l) Housing Loan Guarantee Program (OAR 813-043);

(m) Homeownership Assistance Program (OAR 813-044);

(n) Housing Development Account Program (813-045);

(o) Emergency Housing Program (OAR 813-046);

(p) Housing Revitalization Program (OAR 813-048);

(q) Disabled Housing Program (OAR 813-060);

(r) Home Improvement Loan Program (OAR 813-070);

(s) Mortgage Credit Certificate Program (OAR 813-080);

(t) Low-Income Housing Tax Credit Program (OAR 813-090);

(u) Oregon Affordable Housing Tax Credit Program (OAR 813-110);

(v) Home Investment Partnerships Program (OAR 813-120);

(w) HELP Program (OAR 813-130);

(x) Incentive Fund Program (OAR 813-140);

(y) Subsidized Development Visitability Program (OAR 813-310);

(z) General Guarantee Program (OAR 813-350); and

(aa) Other activities of the department involving the financing, regulation, maintenance or support of housing or home ownership or that otherwise are defined in statute or in this chapter as a housing program.

(3) Pursuant to ORS 456.555, the Housing and Community Services Department is to establish from time to time, by administrative rule, the threshold property purchase price at which a single-family home ownership loan on property must be submitted by the department to the State Housing Council for approval or disapproval as well as the threshold value for a housing grant or other housing funding award for multifamily housing. Presently, the threshold property purchase price for single-family home ownership that obligates the department to obtain State Housing Council review and approval of a proposed single-family loan is that purchase price which, when reduced by costs of purchase other than the department loan, is equal to or greater than$190,000.

(4) “Acquisition loan” means a loan for the purpose of financing the purchase of an existing Project.

(5) “Act” means ORS 456.515 through 456.725 and, given the context, also may include 458.005 through 458.740, 90.800 through 90.840, and 91.886.

(6) “Approved lender” means any person authorized to engage in the business of making loans of the general character of program loans, who meets the qualifications for an approved lender set forth in the applicable program rules and who contracts with the department to make program loans.

(7) “Approved servicer” means any person authorized to engage in the business of servicing loans of the general character of program loans, who meets the qualifications for an approved servicer set forth in the applicable program rules and who contracts with the department to service program loans.

(8) “Bond” means any bond, note or other evidence of indebtedness issued to obtain funds to provide financing for a program of the department as provided in the Act or as further defined by statute.

(9) “Borrower” means an eligible borrower who has received a program loan.

(10) “Break-even occupancy” means the point in time when a project’s monthly rental income meets its monthly operating expenses and debt service.

(11) “Commitment” means the written conditional obligation of the department to make, purchase, service or sell a program loan or other funding award.

(12) “Community service programs” are defined in subsection (2) of this section.

(13) “Contingency escrow account” means an account generally not to exceed 3% of the initial principal amount of the program loan, established by the sponsor in the form of a savings account, time certificate of deposit, or irrevocable letter of credit assigned to the department.

(14) “Cooperative” is a consumer housing entity formed according to the provisions of ORS Chapter 62, as amended.

(15) “Department” means the Housing and Community Services Department of the state of Oregon established pursuant to ORS 456.555 originally enacted by enrolled house bill 3377, chapter 739, Oregon Laws 1991.

(16) “Director” means the chief administrative officer of the Housing and Community Services Department established pursuant to ORS 456.555(2).

(17) “Elderly household” means a household residing in the state of Oregon whose head is over the age of 58 or 55, as applicable.

(18) “Eligible borrower” means a person who satisfies the criteria to receive a program loan as set forth in the applicable program rules, statutes or department orders.

(19) “Escrow payments” means the monthly payments made by the sponsor or borrower and placed in an escrow reserve account for the payment of property taxes, insurance premiums and reserve for replacements and other identified costs as required by the department in accordance with the program loan.

(20) “Funding documents” means any and all documents required by the department to document a housing grant or other funding award or reservation commitment including, but not limited to loan agreements, regulatory agreements, operating agreements, reservation letters, guarantees or otherwise.

(21) “Housing Council” or “State Housing Council” means that seven-member body established by ORS 456.

(22) “Housing programs” are defined in subsection (2) of this section.

(23) “Lending department” means a commercial bank, savings and loan association, savings bank, mortgage banker Federal Housing Administration, Farmers Home Administration or other department that provides permanent or construction mortgage loans.

(24) “Loan agreement” means a written agreement, typically executed at loan closing, between the department and a sponsor establishing the terms of any department loan.

(25) “Loan closing” means the disbursement by the department of the program loan proceeds after execution and recording of the loan documents.

(26) “Loan documents” means the written agreements by and between the sponsor and the department or in favor of the department, typically executed at loan closing, and generally including, but not necessarily limited to the promissory note, the loan agreement, the trust deed and the regulatory agreement.

(27) “Mobile home park” means a project consisting of individual lots and mobile homes located within 500 feet of one another on a lot, tract or parcel of land under the same ownership, and which complies with all ordinances, plans and codes in the area.

(28) “NOFA” means a notice of funding availability.

(29) “Operating agreement and declaration of restrictive covenants and equitable servitudes” or “operating agreement” means a written agreement typically executed at loan closing between the department and the sponsor of a project under the department’s pass-through revenue bond program and regulating the use of revenues and operation of the project, particularly with respect to tenant income and unit rent compliance by the sponsor.

(30) “Person” means any natural or legal person.

(31) “Procedural guide” means a manual of written procedures adopted by the department to carry out a program.

(32) “Program” means a statutorily authorized plan or order of business conducted by the department.

(33) “Program loan” means a loan made pursuant to a program of the department.

(34) “Program requirements” means the requirements with respect to any department funding program including but not limited to as contained in or arising from applicable administrative rules, solicitation documents, funding documents, department directives, federal, state and local statutes, codes, regulations or determinations and other applicable law.

(35) “Qualified insurer” means the Federal Housing Administration, the Veterans’ Administration, or any other person who is authorized to insure or guarantee payment of loans and who is approved by the department.

(36) “Regulatory agreement and declaration of restrictive covenants and equitable servitudes” or “regulatory agreement” means a written agreement typically executed at loan closing between the department and a sponsor regulating the use of revenues and operation of the project for which a department loan is issued, particularly pertinent with respect to compliance by the sponsor with maintaining the status of any involved bond issue.

(37) “Rent-up reserve account” means an account set up by the sponsor and under the control of the department to assure sufficient funds to pay operating expenses and debt service of the project before break-even occupancy.

(38) “Replacement cost reserve account” means an account established to aid in payment for extraordinary maintenance or repair of a project or for replacement of capital items of a project as allowed by the department.

(39) “Seed money advance” means an advance given to a qualified housing sponsor to pay preconstruction costs.

(40) “Single-family residence” means a housing unit intended and used for occupancy by one household and the property on which it is located. This shall be real property located in the state of Oregon. A single-family residence may include a single-family residence, condominium unit, a dwelling in a planned unit development (PUD), or a mobile or manufactured home which has a minimum of 400 square feet of living space and a minimum width in excess of 102 inches and is of a kind customarily used at a fixed location.

(41) “Solicitation” means a process by which the department invites applications for a housing grant or other funding award with respect to a project.

(42) “Solicitation documents” means those documents that, inter alia, set forth the terms and conditions of a solicitation.

(43) “Sponsor” means any person meeting the legal, financial, credit and other qualifications to be the borrower on a department loan and to own and operate a project as set forth in the applicable program rules, statutes and department orders.

(44) “Targeted area” means an area in the state designated by the department in compliance with the requirements of Section 143(j) of the Internal Revenue Code of 1986, as amended, and approved by the United States Departments of Treasury and Housing and Urban Development.

(45) “Trustee” means the state treasurer or, with the approval of the department, a private financial institution in Oregon acting pursuant to an indenture of trust or other appropriate instrument.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 90.630, 90.771 - 90.775, 90.800 - 90.840, 183, 315.271, 317.097, 446.525 - 446.543, 456.515 - 456.725, 458.210 - 458.365, 458.405 - 458.460, 458.505 - 458.740, 566.310 - 566.350 & 757.612 - 757.617

Stats. Implemented: ORS 456.515 - 456.720

Hist.: 1HD 7-1984, f. & ef. 9-4-84; HSG 1-1987(Temp), f. & ef. 2-5-87; HSG 5-1987, f. & ef. 3-10-87; Renumbered from 813-001-0006; HSG 3-1989(Temp), f. & cert. ef. 6-8-89; HSG 5-1989, f. & cert. ef. 11-3-89; HSG 2-1991(Temp), f. & cert. ef. 8-7-91; HSG 8-1991, f. & cert. ef. 12-23-91; OHCS 1-2005(Temp), f. & cert. ef. 8-4-05 thru 1-31-06; OHCS 3-2006, f. & cert. ef. 1-31-06; OHCS 14-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 18-2013, f. & cert. ef. 12-18-13

813-005-0016

Waiver

The director may waive, suspend or modify any term or provision of OAR 813, unless such waiver, suspension or modification would violate applicable federal or state law.

Stat. Auth.: ORS 91.886, 183 & 456.555

Stats. Implemented: ORS 90.800 - 90.840, 91.886, 456.515, 456.725 & 458.005 - 458.740

Hist.: OHCS 1-2005(Temp), f. & cert. ef. 8-4-05 thru 1-31-06; OHCS 3-2006, f. & cert. ef. 1-31-06; OHCS 14-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 18-2013, f. & cert. ef. 12-18-13

813-005-0020

General Policy and Guideline Manual

The General Policy and Guideline Manual dated June 21 2013, is incorporated into this division by reference and has application, inter alia, to the solicitation, review, reservation, award and documentation of housing grants and other funding awards with respect to affordable multifamily housing projects as well as to the operation and compliance of such projects with applicable habitability, affordability and other requirements irrespective of the program source of funding.

Stat. Auth.: ORS 91.886, 317.097 & 456.555

Stats. Implemented: ORS 90.800 - 90.840, 91.886, 317.097, 456.515 - 456.725 & 458.005 - 458.740

Hist.: OHCS 14-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 18-2013, f. & cert. ef. 12-18-13

813-005-0030

Contingency of Funding Awards

If the department provides a reservation or otherwise to make a funding award under ORS 90.800 - 90.840, 91.886, ORS 317.097, 456.515 through 456.725 or 458.005 through 458.740, and if the type and amount of subject funding or any other department funding approved by the department that was considered by the department in setting the amount of the subject funding (“complementary funding”) meets or exceeds the threshold amounts established in OAR 813-005-0005(3) for review by the State Housing Council, the reservation or other commitment is subject to review and approval by the council of such subject funding and any such complementary funding. The council may approve, deny, modify or further condition funding assistance subject to its review. Based upon any relevant council determination, including with respect to complementary funding, any subject reservation or other commitment may be deemed revoked, or be modified and further conditioned.

Stat. Auth.: ORS 91.886, 317.097 & 456.555

Stats. Implemented: ORS 90.800 - 90.840, 91.886, 317.097, 456.515 – 456.725 & 458.005 - 458.740

Hist.: OHCS 14-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 18-2013, f. & cert. ef. 12-18-13

813-005-0040

Compliance Monitoring

(1) A project receiving any department assistance is subject to such reviews and field inspections that the department determines to be necessary or appropriate including, but not limited to ensuring the funding recipient’s and project owner’s compliance with any program requirements including, but not limited to applicable administrative rules (including incorporated manuals), department directives, solicitation documents, funding documents, or otherwise. The project owner shall cooperate fully with all reviews and field inspections, comply with any resulting correction directives, and shall make all records available for inspection and copying. The project owner also shall provide such other information as the department may from time to time request.

(2) Project owners shall cooperate fully with department reviews, field inspections and other information requests including, but not limited to allowing the inspection and copying of relevant records as determined by the department.

(3) Project owners shall act promptly to correct any deficiencies identified by the department as a consequence of its reviews, field inspections or otherwise upon notice by the department of same.

(4) Project owners shall retain financial records, supporting documents and all other pertinent records with respect to a project until six years after the project affordability period for the respective source of funding is complete, or after any relevant litigation or audit claim is resolved, whichever is later.

Stat. Auth.: ORS 91.886, 317.097 & 456.555

Stats. Implemented: ORS 90.800 - 90.840, 91.886, 317.097, 456.515 – 456.725 & 458.005 - 458.740

Hist.: OHCS 14-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 18-2013, f. & cert. ef. 12-18-13

813-005-0050

Remedies

(1) If the department determines that there has been any material failure or default with respect to any term, covenant or condition of the applicable solicitation documents or funding documents, applicable rules, directives, or other program requirements, it may exercise any remedy available under OAR chapter 813, the solicitation documents, the funding documents, other program requirements or applicable law. Remedies include, but are not limited to rescission of funding awards, issuance of corrective orders or directives, imposition of sanctions, recapture of any tax credits, recoupment of funding, recovery for damages, specific performance, injunctive relief, declaratory actions, appointment of a receiver for the project, foreclosure of lien interests, debarment from other department funding, and other remedies available at law.

(2) The remedies set forth in this section are cumulative and not exclusive and are in addition to any other rights and remedies available to the department. The department may exercise any or all remedies available to it, and in such manner as it, in its sole discretion, determines appropriate. No failure to exercise a remedy shall be deemed as a waiver or release of such remedy or other remedies or the claims upon which they are based.

(3) Any waiver of a remedy or claim must be in writing and signed by an authorized representative of the department. No waiver shall be continuing in nature or affect any other remedy or claim of the department unless expressly so stated in the signed waiver.

Stat. Auth.: ORS 91.886, 317.097 & 456.555

Stats. Implemented: ORS 90.800 - 90.840, 91.886, 317.097, 456.515 – 456.725 & 458.005 - 458.740

Hist.: OHCS 14-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 18-2013, f. & cert. ef. 12-18-13

813-005-0060

Transfer of Recipient, Assistance or Ownership; Subordinate Liens; Encumbrances

(1) A recipient of any department assistance or owner of a project for which such assistance is provided may not transfer or allow any transfer of any interest in itself, the assistance or the project, allow a subordinate lien or otherwise encumber the project, or any portion or interest therein, unless the department first approves the transfer, subordinate lien or encumbrance in writing. Any such transfer is subject to the payment to the department of a transfer or other approval charge as required by the department. If the recipient effects or allows a transfer, subordinate lien or encumbrance without prior written approval by the department, the transfer, subordinate lien or encumbrance is voidable and remains subject to the approval or disapproval of the department and the recipient or owner responsible for allowing the transfer, subordinate lien or encumbrance and any transferees, jointly and severally, are subject to a charge by the department with respect to its review and treatment of any such event.

(2) The department may condition its approval upon such terms and conditions as it, in its sole discretion, may require. Factors the department may consider in determining whether or not to give approval to a transfer, subordinate lien or encumbrance include, but are not limited to:

(a) The financial investment of the department in the project;

(b) Preservation of existing housing;

(c) The transferee’s ability to maintain and manage the project for the needs of the residents, the integrity of the housing and as security for the assistance;

(d) The effect of the transfer, subordinate lien or encumbrance upon the financial integrity of the project, repayment of the assistance, use of the project for its intended purposes, and continuity of the program requirements; and

(e) Continued compliance with program requirements.

Stat. Auth.: ORS 91.886, 317.097 & 456.555

Stats. Implemented: ORS 90.800 - 90.840, 91.886, 317.097, 456.515 – 456.725 & 458.005 - 458.740

Hist.: OHCS 14-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 18-2013, f. & cert. ef. 12-18-13

813-005-0070

Fees and Charges

The department may require the payment of such fees and charges as it determines appropriate with respect to the administration of its housing programs and program requirements including, but not limited to the solicitation, award, documentation and use of department funding assistance and correlation with other funding partners and resources, acquisition, development, construction, rehabilitation and operation of projects assisted with department funding assistance, ongoing compliance monitoring and enforcement of financial, affordability, and habitability requirements, transfers, subordinate liens and encumbrances.

Stat. Auth.: ORS 91.886, 317.097 & 456.555

Stats. Implemented: ORS 90.800 - 90.840, 91.886, 317.097, 456.515 – 456.725 & 458.005 - 458.740

Hist.: OHCS 14-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 18-2013, f. & cert. ef. 12-18-13


Rule Caption: Amends the procedural rules relating to State Housing Council review and determination for award proposals

Adm. Order No.: OHCS 19-2013

Filed with Sec. of State: 12-18-2013

Certified to be Effective: 12-18-13

Notice Publication Date: 12-1-2013

Rules Amended: 813-001-0007

Rules Repealed: 813-001-0007(T)

Subject: The descriptive and procedural rules within chapter 813, division 001, provide an overview of the department and related entities. The proposed amended rules describe the procedure for the State Housing Council’s review and approval or disapproval of certain housing grants, loans and other funding awards proposed by the director of the department.

Rules Coordinator: Sandy McDonnell—(503) 986-2012

813-001-0007

Procedural Rules for State Housing Council Review and Determination with Respect to Certain Housing Loan, Grant and Other Funding Award Proposals by the Director

(1) The director or the director’s department designees shall submit proposed loan, grant or other funding award proposals arising under ORS 456.515 to 456.725 programs to the State Housing Council for review and approval if the proposal is for:

(a) A proposed single-family loan on property with a purchase price which, when reduced by costs of purchase other than the department loan, is equal to or greater than $190,000;

(b) A housing loan other than a single-family homeownership loan, if the loan amount exceeds $100,000; or

(c) A housing grant or other housing funding award, if the grant or other funding award amount exceeds $100,000.

(2) The council shall review each loan, grant or other funding award proposal submitted by the director under this section and approves or disapproves the loan, grant or other funding award proposal. An approval by the council of any loan, grant or other funding award may be partial or in full and may contain any conditions that the council may prescribe.

(3) Formal council review of loan, grant or other funding award proposals under this section shall be conducted in a public meeting, whether in person or by telephone or other electronic means. The council may go into executive session, as appropriate, in the course of its review. A council public meeting notice, when required by ORS 192.640, shall include notice of the loan, grant or other funding award proposal review, the names of the applicants, and the subject of the loan, grant or funding award proposal. The council also shall provide notice of any loan, grant or other funding award proposal review to the loan, grant or other funding award applicant not less than five days before the review hearing.

(4) The public may contact the department for available information with respect to prospective council review of loan, grant or other funding award proposals by telephoning 503.986-2000 or addressing written correspondence to: Oregon Housing and Community Services Department, 725 Summer Street NE, Suite B, Salem OR 97301.

(5) Procedural rules addressing other programs administered by the department are included, where applicable, in other divisions of this chapter. Additional procedural rules with respect to the review and approval of housing grants, loans and other funding awards also may be included, where applicable, in other divisions of the chapter.

Stat. Auth.: ORS 90.630, 90.771 - 90.775, 90.800 - 90.840, 183, 315.271, 317.097, 446.525 - 446.543, 456.515 - 456.725, 458.210 - 458.365, 458.405 - 458.460, 458.505 - 458.740, 566.310 - 566.350 & 757.612 - 757.617

Stats. Implemented: ORS 90.630, 90.771 - 90.775, 90.800 - 90.840, 183, 315.271, 317.097, 446.525 - 446.543, 456.515 - 456.725, 458.210 - 458.365, 458.405 - 458.460, 458.505 - 458.740, 566.310 - 566.350 & 757.612 - 757.617

Hist.: OHCS 2-2005(Temp), f. & cert. ef. 8-4-05 thru 1-31-06; OHCS 2-2006, f. & cert. ef. 1-31-06; OHCS 8-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 19-2013, f. & cert. ef. 12-18-13


Rule Caption: Amends the process for soliciting and administering funding awards for the Low-Income Weatherization Program

Adm. Order No.: OHCS 20-2013

Filed with Sec. of State: 12-18-2013

Certified to be Effective: 12-18-13

Notice Publication Date: 11-1-2013

Rules Adopted: 813-205-0082, 813-205-0145, 813-205-0150

Rules Amended: 813-205-0000, 813-205-0020, 813-205-0030, 813-205-0040, 813-205-0050, 813-205-0051, 813-205-0052, 813-205-0060, 813-205-0070, 813-205-0080, 813-205-0085, 813-205-0100, 813-205-0110, 813-205-0120, 813-205-0130

Rules Repealed: 813-205-0010, 813-205-0140, 813-205-0000(T), 813-205-0020(T), 813-205-0030(T), 813-205-0040(T), 813-205-0050(T), 813-205-0051(T), 813-205-0052(T), 813-205-0060(T), 813-205-0070(T), 813-205-0080(T), 813-205-0082(T), 813-205-0085(T), 813-205-0100(T), 813-205-0110(T), 813-205-0120(T), 813-205-0130(T), 813-205-0145(T), 813-205-0150(T)

Subject: The Low-Income Weatherization Program carries out the department’s role in administering state and federal weatherization assistance programs at the local level. The department has completed a significant reorganization as to how it solicits and administers funding awards for this program as part of the restructure. These rule changes are designed to reflect the significant reorganization.

Rules Coordinator: Sandy McDonnell—(503) 986-2012

813-205-0000

Purpose and Objectives

OAR chapter 813, division 205, is promulgated to carry out the department’s role in administering state and federal weatherization programs. Additional policies and instructions for such programs are outlined in the Low Income Weatherization Assistance Program Manual dated June 21, 2013 (the “LIWP Manual” or “Manual”), incorporated herein by reference. The Manual may be accessed online at the department’s website. Weatherization assistance is provided under programs at the local level as follows:

(1) The Low Income Weatherization Program for Rental Housing, included herein, through developers of affordable rental housing; and

(2) The Low Income Weatherization Assistance Program, including all other low income weatherization assistance, which is provided through a network of service-provider agencies.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 458.505, 757.612

Hist.: OHCS 9-2002(Temp), f. & cert. ef. 6-19-02 thru 12-15-02; OHCS 19-2002, f. & cert. ef. 12-13-02; OHCS 13-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 6-2007, f. & cert. ef. 1-11-07; OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0020

Funding Application; Administration

(1) An agency must submit biennially the funding application required by OAR 813-205-0060 for the Low Income Weatherization Assistance Program. Funding under the program may come from a grant or other sources. The application must include a work plan that:

(a) Outlines the manner in which the agency determines its needs;

(b) Describes the forum the agency uses to solicit input and who participates;

(c) Summarizes the needs of the agency’s service area and the goals and outcome-based objectives of the agency;

(d) Requires quarterly reporting; and

(e) Such other information as the department may require.

(2) An agency providing services under the program may be a community action agency, a limited purpose organization, an area agency on aging, an organization formed to serve the specific needs of an identified segment of the population or any other organization approved by the department for the purpose.

(3) An agency under this section must follow the procedures in the applicable Oregon State Plan developed as a requirement of federal funding, except when specific rules relating to a particular grant to the agency may override the applicable Oregon State Plan. The specific rules relating to a particular grant may include, but are not limited to identification of potential applicants, certification of eligibility and provision of weatherization services to eligible dwelling units within the service area of the agency.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 458.505, 757.612

Hist.: OHCS 9-2002(Temp), f. & cert. ef. 6-19-02 thru 12-15-02; OHCS 19-2002, f. & cert. ef. 12-13-02; OHCS 13-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 6-2007, f. & cert. ef. 1-11-07; OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0030

Eligible Applicants

(1) A household is eligible to receive assistance under the Low Income Weatherization Assistance Program if the department determines the household meets all requirements of the applicable Oregon State Plan not obviated by specific grant rules, including but not limited to household income guidelines.

(2) A household is eligible for assistance under the program regardless of whether the household rents or owns its dwelling. Households in similar circumstances must receive similar benefits.

(3) An agency may not use a person’s race, color, national origin or sex as a basis for excluding the person from participating in any activity funded in whole or in part with funds made available from the program, for denying the benefits of any such activity or for subjecting the person to discrimination under any activity. An agency must provide assurances to the Department that the agency complies with any prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975 or with respect to an otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973.

(4) An agency shall create a waiting list of applicants for receiving program weatherization services and shall establish criteria for determining applicant priority on the waiting list. The agency shall maintain the criteria in its files and shall file the criteria with the department. An agency must use the priority consistently for all applicants except with respect to any department-sanctioned special project in which the agency is involved. An agency’s criteria may include factors that encourage leveraging additional resources or the potential for energy savings. An agency shall give priority to at least the following:

(a) Individuals who are 60 years of age or older;

(b) Individuals who are disabled; and

(c) Households with children of less than six years of age.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 458.505, 757.612

Hist.: OHCS 9-2002(Temp), f. & cert. ef. 6-19-02 thru 12-15-02; OHCS 19-2002, f. & cert. ef. 12-13-02; OHCS 13-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 6-2007, f. & cert. ef. 1-11-07; OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0040

Eligible Services

(1) An agency may provide any one of the following services to an eligible applicant under the Low Income Weatherization Assistance Program:

(a) Any general weatherization measure including, but not limited to general heat waste, insulation, heating system repair and replacement, health and safety inspections and improvements, baseload measures, and educational activities and instruction designed to help low income clients make appropriate decisions and lifestyle changes to effectively reduce energy consumption; and

(b) Any measure that is necessary for effective energy savings performance or preservation of weatherization materials.

(2) Except as otherwise specified by the grantor of funds, the department may allocate no more than five percent of the program’s funds for training and technical assistance activities designed to maintain or increase the efficiency, quality and effectiveness of the program at all levels. Training and technical assistance activities may include, but are not limited to those maximizing energy savings, minimizing production costs, improving program management and reducing the potential for waste, fraud and abuse.

(3) An agency may request technical assistance from the department to improve the agency’s management of program activities and increase the effectiveness of its customer service efforts.

(4) A property owner may sell multifamily business energy tax credits generated through the weatherization of investment property or assign said tax credits to the agency that provided the weatherization services.

(5) An agency may weatherize a building with five or more separate living quarters that pay space rent if 66 percent of the living quarters are occupied by income eligible households.

(6) An agency may weatherize a building with five or more separate living quarters if the owner pays 10 percent or more of the total cost of weatherization and if at least 50 percent of the occupants meet income eligibility guidelines. An agency may not use the 50 percent income eligibility exception unless the agency first submits a work plan to the department and has received the department’s approval.

(7) An agency shall practice lead safe work practices on each dwelling constructed prior to 1978 unless the agency can prove to the department’s satisfaction that a lead hazard does not exist.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 458.505 757.612

Hist.: OHCS 9-2002(Temp), f. & cert. ef. 6-19-02 thru 12-15-02; OHCS 19-2002, f. & cert. ef. 12-13-02; OHCS 13-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 6-2007, f. & cert. ef. 1-11-07; OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0050

Allocation of Federal Funds

(1) The department may set aside up to three percent of the federal funds from the Low Income Weatherization Assistance Program funds for native american populations to either provide direct funding to native american tribes or allocate funds to an agency with recognized native american populations.

(2) If any such funds remain after department expenditures for administrative costs, for set-aside purposes or for training and technical assistance activities designed to maximize energy savings, minimize production costs, improve program management or reduce the potential for waste, fraud or abuse, the remaining funds are subject to allocation to agencies by the department on the basis of an allocation formula that is in the applicable Oregon State Plan and is based on the percentage of poverty low-income households in a service area and on heating degree days.

(3) The department may move grant funds from an agency that is not spending allocated funds in a timely manner to an agency that has expended its funds before the end of the grant period. An agency is subject to at least annual department reviews of the agency’s spending patterns for the purpose of reallocating funds.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 458.505 767.612

Hist.: OHCS 9-2002(Temp), f. & cert. ef. 6-19-02 thru 12-15-02; OHCS 19-2002, f. & cert. ef. 12-13-02; OHCS 13-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 6-2007, f. & cert. ef. 1-11-07; OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0051

Allocation of State Funds from Energy Conservation Helping Oregonians (ECHO)

(1) State funds in the Low Income Weatherization Assistance Program that are received from the Energy Conservation Helping Oregonians (ECHO) Program are subject to allocation by the department on the basis of the number of residential meters of a participating utility within the service territory of an agency as a percentage of the utility’s total residential meters statewide.

(2) On July 1of each year, each utility shall furnish the department a residential meter count for each county, for use in adjusting allocations to agencies participating in weatherization activities.

(3) This rule applies only to households that receive electric service from Pacific Power or Portland General Electric. A household that uses hard wired electrical systems as its primary heat source is eligible to receive weatherization, baseload and educational services only.

(4) Funds from the Bonneville Power Administration may not be used in conjunction with the state funds to which this rule applies.

(5) The department may move grant funds from an agency that is not spending allocated funds in a timely manner to an agency that expended its funds before the end of the grant period. An agency is subject to at least annual department reviews of the agency’s spending patterns for the purpose of reallocating funds.

(6) Funds under this rule are subject to reallocation for special projects and pilots to programs other than those operated by agencies, once the funding needs of all agencies have been met.

(7) An agency shall follow the approved ECHO Weatherization Guidelines when delivering services under this rule. The Advisory Committee on Energy shall review the guidelines annually and amend them as appropriate.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 458.505 767.612

Hist.: OHCS 19-2002, f. & cert. ef. 12-13-02; OHCS 13-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 6-2007, f. & cert. ef. 1-11-07; OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0052

Allocation of Other Funds

The department shall, at its reasonable discretion, allocate funds in the Low Income Weatherization Assistance Program that were received from legal settlements or otherwise in order to improve and address the energy needs of low income households.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 458.505 767.612

Hist.: OHCS 13-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 6-2007, f. & cert. ef. 1-11-07; OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0060

Authorization of Weatherization Projects

(1) An agency may not provide weatherization assistance under the Low Income Weatherization Assistance program unless the owner of a dwelling first gives written permission to the agency. The permission must include the following information:

(a) The street address of the dwelling;

(b) The name of the owner or of the eligible tenant, whichever is applicable; and

(c) A description of the specific work to be done.

(2) If the dwelling to be weatherized is a rental unit, the agency shall:

(a) Ensure that the unit will not be weatherized unless the agency has first obtained the written permission of the owner of the individual unit or multiunit dwelling of which the unit is a part; and

(b) Establish procedures and obtain the department’s approval thereof, to ensure that:

(A) The residence considered for weatherization is not currently for sale by the owner of the property or designated for acquisition, clearance or foreclosure under a federal, state or local program;

(B) The benefits of weatherization assistance accrue primarily to the low-income resident renting the unit;

(C) The rent of the unit will not be raised as a result of the weatherization assistance;

(D) No undue or excessive increase in the value of the unit will occur as a result of the weatherization assistance and that, if the multiunit dwelling of which the unit is a part is sold within one year after the unit is weatherized, the agency may require the seller to reimburse the agency for the actual cost of weatherization on a prorated basis, determined according to the energy cost buyback of measures; and

(E) Weatherization assistance will not be provided for a unit for which the tenant pays the cost of energy as part of their rent, unless the landlord agrees to reduce rent to account for the reduction in fuel costs associated with the weatherization, or unless health or safety reasons justify weatherization.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 458.505 767.612

Hist.: OHCS 9-2002(Temp), f. & cert. ef. 6-19-02 thru 12-15-02; OHCS 13-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 6-2007, f. & cert. ef. 1-11-07; OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0070

Required Authorization, Audits and Fiscal Controls

The following provisions apply to an agency that receives funding from the department under the Low Income Weatherization Assistance Program:

(1) An agency may not purchase a vehicle or equipment with grant funds, regardless of the cost of the vehicle or equipment, or purchase or lease one or more acquisitions when the cost of the purchase or lease exceeds $5,000, unless the agency first receives authorization from the department.

(2) An agency shall enter all program applicant and job cost information into a department-approved data system.

(3) An agency shall provide the following reports to the department, according to form and substance requirements of the department, as follows:

(a) Not later than the 20th day after the end of each calendar quarter, a program report that describes the progress made by an agency toward the program’s objectives, and all administrative and program expenditures.

(b) Not later than the 90th day after the close of the agency's fiscal year, an annual audit of the weatherization funds that is conducted by a certified public accountant.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 458.505, 757.612

Hist.: OHCS 9-2002(Temp), f. & cert. ef. 6-19-02 thru 12-15-02; OHCS 19-2002, f. & cert. ef. 12-13-02; OHCS 13-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 6-2007, f. & cert. ef. 1-11-07; OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0080

Monitoring

(1) An agency’s annual audit is subject to monitoring by the department under OAR 813-205-0080 so that the department, inter alia, may verify information received in the quarterly reports and so that questions raised by the department, the agency or the auditor may be answered.

(2) An agency’s quarterly reports and program data entered into the statewide database as specified by the department are subject to monitoring by the department so that the department may determine the agency’s compliance with program requirements, monitor spending patterns and chart changes in the program. An agency is subject to an on-site review by the department if the department determines that irregularities or questions raised by the department’s in-house review are sufficient to warrant the onsite review.

(3) An agency and the owner of any project approved for program assistance is subject to such monitoring and on-site reviews by the department as it may require. The department may examine matters including, but not limited to the following in its off-site and on-site reviews and auditing functions:

(a) Financial records;

(b) The inventory system;

(c) Client files;

(d) Work completed;

(e) Agency post-installation inspection;

(f) Agency review; and

(g) Records of training and technical assistance provided by the agency.

(4) An agency also is subject to evaluations by the department of the agency’s performance under the program, including but not limited to the level of service provided, ease of access to applicants, error rate and compatibility with other community service programs. These evaluation functions may be performed separately or in conjunction with other auditing and review functions by the department.

(5) An agency shall cooperate fully with all department audit, review and evaluation requests and activities.

(6) An agency and the owner of a project receiving program assistance shall retain related financial records, supporting documents and all other pertinent records for six years after the receipt of assistance or after any litigation or audit claim is resolved, whichever is later.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 458.505, 757.612

Hist.: OHCS 9-2002(Temp), f. & cert. ef. 6-19-02 thru 12-15-02; OHCS 13-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 6-2007, f. & cert. ef. 1-11-07; OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0082

Charges; Transfers

(1) The department may charge for reasonably anticipated costs of program administration including, but not limited to monitoring costs and transfer review costs.

(2) The owner of a project approved for assistance under this program shall not transfer any assistance, any interest in the project or any interest in itself without the prior written approval of the department. Unapproved transfers are voidable by the department.

(3) The department may require payment of a transfer review charge:

(a) From an owner of a project approved for assistance under this program that requests a transfer; or

(b) From such a former owner or the transferee with respect to an unapproved transfer.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 458.505, 757.612

Hist.: OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0085

Program Administration, Authority

OAR 813-205-0085 to 813-205-0150 address protocols, standards and requirements with respect to the Low Income Weatherization Program for Rental Housing. Additional policies and instructions for this program are outlined in the LIWP Manual. The department allocates funds for this program through developers of affordable rental housing. Such funds are directed to the department under ORS 757.612(7) to carry out weatherization needs of low income households pursuant to the department’s authority to provide crisis assistance with funding available from the Energy Crisis Trust Fund under ORS 758.510 for antipoverty programs.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 458.505, 757.612

Hist.: OHCS 13-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 6-2007, f. & cert. ef. 1-11-07; OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0100

Eligible Applicants

(1) Any of the following may apply to the department for approval of a project under the Low Income Weatherization Program for Rental Housing:

(a) A for-profit business,

(b) A local government entity including but not limited to a city, county or housing authority;

(c) A not-for-profit organization, including but not limited to a not-for-profit community organization, a regional or statewide not-for-profit entity, a private individual or a not-for-profit corporation.

(2) An applicant under subsection (1) of this section or a principal representative of the applicant as approved by the department must enter into a financial assistance agreement with the department, satisfactory to the department, and record such agreement against the real property of the project so as to create restrictive covenants running with such real property that assure continuing compliance with all habitability and affordability requirements of the program.

Stat. Auth.: ORS 46.555

Stats. Implemented: ORS 458.505, 757.612

Hist.: OHCS 13-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 6-2007, f. & cert. ef. 1-11-07; OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0110

Eligible Projects

The provisions of this section, in addition to the requirements of the department’s bond programs, the open, competitive process for distributing grant and tax credit funds for affordable multi-unit low income rental housing development and other application processes and charges, apply to all projects under the Low Income Weatherization Program for Rental Housing as follows:

(1) State funding from the Energy Conservation Helping Oregonians Program is limited to projects located in the PacifiCorp and Portland General Electric service areas. Projects that use hard wired electrical systems as their primary heat source are eligible to receive funding from the Act for weatherization, and baseload services. Projects in PaciCorp and Portland General Electric service areas that heat with other fuels may receive baseload measures only.

(2) Applications for weatherization funding for projects located outside PacifiCorp and Portland General Electric service areas are subject to acceptance by the department only when funds from sources other than PacifiCorp or Portland General Electric funds are available.

(3) The following projects are eligible under the program:

(a) New construction projects which specify higher than code minimums on insulation, windows, appliances and lighting; and

(b) Acquisition/rehabilitation projects that specify upgrades from original levels of insulation, windows, appliances and lighting.

(4) Households that are low-income are eligible for the program. A household is low income for the purpose of the program if the household income is at or below 60 percent of an area’s median income. At least one-half of the units in the project must be rented to households whose income is at or below 60 percent of the area median income as defined by the U.S. Department of Housing and Urban Development (HUD).

(5) The project must remain affordable for a minimum of 10 years, unless superseded by other department resource requirements.

(6) The department may require more extensive or enduring affordability requirements than those required in subsections (4) and (5) of this section.

(7) An applicant may be subject to prevailing wage requirements with the use of public funds under the Low-Income Weatherization Program for Rental Housing. An applicant is advised to consider contacting the applicant’s legal representative or the Oregon Bureau of Labor and Industries for the requirements of the state program.

Stat. Auth.: ORS 46.555

Stats. Implemented: ORS 458.505, 757.612

Hist.: OHCS 13-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 6-2007, f. & cert. ef. 1-11-07; OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0120

Eligible Activities

(1) Under the Low-Income Weatherization Program for Rental Housing, an eligible applicant may provide services and applications including, but not limited to one or more of the following:

(a) A general weatherization measure that includes, but is not limited to general heat waste, insulation, heating and cooling system repair, replacement or installation, health and safety improvements, baseload measures, alternative energy applications, and various energy efficient technology; and

(b) Any repair measure that the department determines appropriate for effective energy savings performance or preservation of energy efficient applications.

(2) To be eligible under this section, an activity must demonstrate measurable cost-effective energy conservation to the department’s satisfaction. An energy-efficient application for the program must show first year savings based on a pre-determined number of kilowatts, therms or other units of power measurements for each conservation dollar invested.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 458.505, 757.612

Hist.: OHCS 13-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 6-2007, f. & cert. ef. 1-11-07; OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0130

Fund Uses

(1) The department may award funds under the Low-Income Weatherization Program for Housing as a grant or a loan, including as requested by the applicant or sponsor of a project.

(2) If the amount of a grant or loan proposal meets or exceeds the threshold amount established in OAR 813-001-0007(1) for review by the State Housing Council for a rental housing development, the department may award the grant or loan on an as-needed basis, when the maximum power savings can be demonstrated and if adequate resources are available. An award under this section is subject to review by the State Housing Council for approval or disapproval under OAR 813-001-0007(1).

(3) An applicant may use not more than ten percent of funds available from the state Energy Conservation Helping Oregonians Program and from Low-Income Weatherization Program award for each project to make general repairs if the department determines that adequate resources are available.

Stat. Auth.: ORS 456.515 - 456.725, 458.505 - 458.545

Stats. Implemented: ORS 458.505 - 458.515

Hist.: OHCS 13-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 6-2007, f. & cert. ef. 1-11-07; OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0145

General Administrative and Monitoring Requirements

(1) An applicant or owner of a project approved for program assistance shall timely submit to the department such information as the department may require for the purpose, inter alia, of compliance monitoring by same.

(2) An applicant or owner of a project approved for program assistance is subject to reviews and field inspections that the department determines to be necessary or appropriate including, but not limited to ensuring the applicant’s and project owner’s compliance with program requirements. The applicant and project owner shall cooperate fully with all reviews and field inspections, timely comply with any resulting correction directives, and make all records available for inspection and copying.

(3) A recipient of program assistance or owner of a project receiving such assistance shall retain related financial records, supporting documents and all other pertinent records for six years after the receipt of assistance or after any litigation or audit claim is resolved, whichever is later.

Stat. Auth.: ORS 456.515 - 456.725, 458.505 - 458.545

Stats. Implemented: ORS 458.505 - 458.515

Hist.: OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13

813-205-0150

Charges; Transfers

The department may charge for the reasonably anticipated costs of its administration of the Low-Income Weatherization Program for Rental Housing. Such charges may include, but are not limited to the following:

(1) A non-refundable application charge, from an applicant under OAR 813-205-0100.

(2) A supplemental application charge, from an owner of a project approved by the department under the program who requests additional resources for a project that is funded by the department.

(3) A transfer application charge from an owner of an approved project who requests the department’s approval of a change in project ownership, or from the transferee of ownership.

(4) A transfer review charge from an owner of an approved project who effects a change in project ownership without prior written department approval, or from the transferee of ownership.

Stat. Auth.: 456.555

Stats. Implemented: ORS 458.505, 458.510, 757.612

Hist.: OHCS 16-2013(Temp), f. & cert. ef. 6-21-13 thru 12-17-13; OHCS 20-2013, f. & cert. ef. 12-18-13


Rule Caption: Amends the process for soliciting and administering funding awards for the HELP Program

Adm. Order No.: OHCS 21-2013

Filed with Sec. of State: 12-18-2013

Certified to be Effective: 12-18-13

Notice Publication Date: 11-1-2013

Rules Amended: 813-130-0000, 813-130-0010, 813-130-0020, 813-130-0030, 813-130-0040, 813-130-0050, 813-130-0060, 813-130-0070, 813-130-0080, 813-130-0090, 813-130-0100, 813-130-0110, 813-130-0120, 813-130-0150

Rules Repealed: 813-130-0130, 813-130-0140, 813-130-0000(T), 813-130-0010(T), 813-130-0020(T), 813-130-0030(T), 813-130-0040(T), 813-130-0050(T), 813-130-0060(T), 813-130-0070(T), 813-130-0080(T), 813-130-0090(T), 813-130-0100(T), 813-130-0110(T), 813-130-0120(T), 813-130-0150(T)

Subject: The HELP program provides financial assistance for the construction, acquisition and/or rehabilitation of multifamily rental housing for individuals and families of very low income in order to expand the supply of affordable, decent, safe and sanitary housing in Oregon. The department has completed a significant reorganization on how it solicits and administers funding awards for this program as part of the restructure.

Rules Coordinator: Sandy McDonnell—(503) 986-2012

813-130-0000

Purpose and Objectives

OAR chapter 813, division 130, is promulgated to carry out the provisions of the HELP Program. The department receives HELP funds from the U.S. Department of Housing and Urban Development (HUD) under Section 1012 of the Steward B. McKinney Homeless Assistance Act (“the McKinney Act”) of 1988. The HELP program is funded by monies realized from the HUD-authorized refunding of existing bonds issued by the department, the proceeds of which were originally used to finance housing projects, pursuant to an agreement between the department and HUD under HUD’s Financing Adjustment Factor (FAF) program. Under the FAF program, HUD shares such monies realized from these refundings on an equal basis with bond issuers such as the department, and attaches certain restrictions and requirements upon the use of funds realized from such refunding. The HELP program’s purpose is to provide financial assistance for the construction, acquisition and/or rehabilitation of multifamily rental housing for individuals and families of very low income in order to expand the supply of affordable, decent, safe and sanitary housing in Oregon. Additional program policies and instructions are outlined in the HELP Program Policies and Guidelines Manual dated June 21, 2013 (the “HELP Manual” or “Manual”), incorporated herein by reference. The Manual may be accessed online on the department’s website.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 456.555, 456.559, 456.625

Hist.: HSG 6-1993(Temp), f. & cert. ef. 10-1-93; HSG 4-1994, f. & cert. ef. 8-1-94; OHCS 12-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 11-2007, f. & cert. ef. 1-11-07; OHCS 15-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 21-2013, f. & cert. ef. 12-18-13

813-130-0010

Definitions

Certain terms used in OAR chapter 813, division 130, are defined in the Act, 813-005-0005, and herein. Other terms may be identified in the text of this division (including by incorporation), otherwise in chapter 813, or applicable law. As used in OAR chapter 813, division 130, unless the context indicates otherwise:

(1) “Affordability period” means the period during which a project assisted with HELP funds must remain affordable to very low income residents, which period shall be at least 10 years from the date of the use agreement executed in favor of the department.

(2) “Annual household income” means the anticipated total income from all sources received by the family head and by each additional member of the family of 18 years of age and over, including all net income derived from assets for the twelve-month period following the effective date of certification of income, in accordance with HUD regulations, 24 CFR 813.

(3) “Applicant” means an applicant for HELP funds.

(4) “Household” means one or more persons occupying a housing unit.

(5) “HUD” means the U.S. Department of Housing and Urban Development.

(6) “Low income” means annual household income that does not exceed 80 percent of the median household income for the area, as determined by HUD, with allowances for family size.

(7) “Nonprofit organization” means:

(a) An organization that has obtained tax-exempt status under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and is established under the provisions of ORS Chapter 65,

(b) A community development corporation as defined in ORS 458.210,

(c) A housing authority as defined in ORS 456.005,

(d) A community action agency established pursuant to the federal Economic Opportunity Act of 1964, which meets the requirements of ORS 458.505(4), or

(e) Other nonprofit entity satisfactory to the department and representing or seeking to serve the housing, human services and community economic revitalization needs of a clearly-defined population and area.

(8) “Program” means the HELP program.

(9) “Project” means a multifamily rental housing development assisted or to be assisted, in part, with HELP program funds.

(10) “Recipient” means a recipient of HELP funds to be used for project assistance.

(11) “Use agreement” means the Financing Adjustment Factor Savings Funds Use Agreement between a recipient and the department.

(12) “Very low income” means annual household income that does not exceed 50 percent of the median household income for the area, as determined by HUD, with allowances for family size.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 456.555, 456.559, 456.625

Hist.: HSG 6-1993(Temp), f. & cert. ef. 10-1-93; HSG 4-1994, f. & cert. ef. 8-1-94; OHCS 12-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 11-2007, f. & cert. ef. 1-11-07; OHCS 15-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 21-2013, f. & cert. ef. 12-18-13

813-130-0020

Eligible Applicants for HELP Funds

Eligible recipients for HELP funds include units of general local government and nonprofit organizations that propose to construct, acquire and/or rehabilitate projects with rental housing units for very low income tenants.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 456.555, 456.559, 456.625

Hist.: HSG 6-1993(Temp), f. & cert. ef. 10-1-93; HSG 4-1994, f. & cert. ef. 8-1-94; OHCS 12-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 11-2007, f. & cert. ef. 1-11-07; OHCS 15-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 21-2013, f. & cert. ef. 12-18-13

813-130-0030

Eligible Activities for HELP Funds

HELP funds provided by the department shall be used for the construction, acquisition and/or rehabilitation of projects with rental housing units for very low income tenants.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 456.555, 456.559, 456.625

Hist.: HSG 6-1993(Temp), f. & cert. ef. 10-1-93; HSG 4-1994, f. & cert. ef. 8-1-94; OHCS 12-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 11-2007, f. & cert. ef. 1-11-07; OHCS 15-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 21-2013, f. & cert. ef. 12-18-13

813-130-0040

Eligible Costs for HELP Funds

Project costs eligible for HELP assistance are costs that promote housing affordability and include, but are not limited to:

(1) Development hard costs, such as the actual costs of constructing or rehabilitating rental housing;

(2) Costs of acquiring improved or unimproved real property;

(3) Pre-development costs which have been pre-approved by the department;

(4) Soft development costs associated with the construction, acquisition, or rehabilitation, including fees and interest studies; and

(5) Other uses identified in the HELP manual.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 456.555, 456.559, 456.625

Hist.: HSG 6-1993(Temp), f. & cert. ef. 10-1-93; HSG 4-1994, f. & cert. ef. 8-1-94; OHCS 12-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 11-2007, f. & cert. ef. 1-11-07; OHCS 15-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 21-2013, f. & cert. ef. 12-18-13

813-130-0050

HELP Affordability Requirements

(1) A use agreement executed by the department and a recipient shall include covenants and restrictions running with land (that will be binding upon the recipient and any successors in title to the project) that require such project to remain affordable to very low income residents during the affordability period.

(2) Use agreements, inter alia, will require recipients or other project owners to obtain resident income certifications at the time of initial occupancy of the HELP-assisted units and on an annual basis thereafter during the affordability period to document to the department that units assisted with HELP funds continue to serve very low income tenants.

(3) Use agreements, inter alia, may provide that a tenant household with very low income at the time of initial occupancy will remain eligible despite the rise of household income and will not be displaced by reason of ceasing to qualify as a very low income family or person if the owner exercises reasonable efforts to lease the next available similar unit in the project to a family or person of very low income.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 456.555, 456.559, 456.625

Hist.: HSG 6-1993(Temp), f. & cert. ef. 10-1-93; HSG 4-1994, f. & cert. ef. 8-1-94; OHCS 12-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 11-2007, f. & cert. ef. 1-11-07; OHCS 15-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 21-2013, f. & cert. ef. 12-18-13

813-130-0060

Program Requirements

The department has developed policies and guidelines for the HELP program, which supplement division 120 and 24 CFR 813. These policies and guidelines are contained in the HELP manual and further address application procedures, project eligibility, project selection criteria, financial assistance available, and other applicable information. Other applicable chapter 813 rules, department directives, and the terms of required funding documents also apply.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 456.555, 456.559 & 456.625

Hist.: HSG 6-1993(Temp), f. & cert. ef. 10-1-93; HSG 4-1994, f. & cert. ef. 8-1-94; OHCS 12-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 11-2007, f. & cert. ef. 1-11-07; OHCS 15-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 21-2013, f. & cert. ef. 12-18-13

813-130-0070

Distribution of Funds

The department may distribute HELP funds consistent with OAR chapter 813 and pursuant to relevant solicitation documents including, but not limited to a Notice of Funding Availability (“NOFA”) or as otherwise determined by the department.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 456.555, 456.559, 456.625

Hist.: HSG 6-1993(Temp), f. & cert. ef. 10-1-93; HSG 4-1994, f. & cert. ef. 8-1-94; OHCS 12-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 11-2007, f. & cert. ef. 1-11-07; OHCS 15-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 21-2013, f. & cert. ef. 12-18-13

813-130-0080

Application Procedure and Requirements

(1) The process to obtain HELP assistance typically will be spelled out in the solicitation documents issued by the department. In addition to, or in lieu of formal solicitation documents, the department may provide other means for accessing HELP assistance. Additional direction and guidance may be found in the HELP Manual and General Manual.

(2) The department may require payment of a non-refundable application charge from any applicant requesting HELP funds through a formal solicitation or otherwise.

(3) The department may require payment of other charges with respect to its reasonably anticipated costs in processing applications, coordinating programs or with other project participants, providing funding, negotiating documents, monitoring compliance, evaluating and documenting transfers, or otherwise. The department may require payment of a supplemental application charge from applicants requesting additional resources for projects that have already been funded by the department.

(4) The department may refuse to process applications or terminate processing if it determines an application to be incomplete or that it fails to satisfy threshold standards for further processing.

(5) An applicant shall submit to the department, on the application form and in accordance with the application process prescribed by the department, such information as the department may require, including but not limited to:

(a) Name, address and telephone number of applicant;

(b) Type of assistance requested;

(c) A written description of the project, including the number of units, unit mix, proposed rents, site location, amenities, and any other information requested by the department.

(d) A statement of project purpose indicating the housing type and residents to be housed, and the length of the affordability period;

(e) One or more pro formas of project income and expenses;

(f) The amount of funding requested and total project development costs, including a description and documentation of all project funding sources and uses;

(g) A narrative of the applicant’s experience in developing affordable housing, including the experience of all members of the project development team;

(h) A narrative of the experience of the applicant’s management team or agent as it relates to operating affordable housing projects;

(i) A description of resident services to be provided;

(j) A narrative of the applicant’s experience in providing resident services, including the experience of any relevant project team members;

(k) A description of the applicant’s readiness to proceed with project activities; and

(l) A schedule for completion of project activities.

(6) The department may restrict the amount and/or type of assistance available in any solicitation or other provision of assistance and restrict the type or number of applicants or recipients eligible for assistance in a particular funding process.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 456.555, 456.559, 456.625

Hist.: HSG 6-1993(Temp), f. & cert. ef. 10-1-93; HSG 4-1994, f. & cert. ef. 8-1-94; OHCS 12-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 11-2007, f. & cert. ef. 1-11-07; OHCS 15-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 21-2013, f. & cert. ef. 12-18-13

813-130-0090

Application Review

(1) An application for assistance from the HELP program is subject to the department’s evaluation and approval or disapproval according to criteria in the solicitation documents or otherwise that may include, but are not limited to the following:

(a) The amount of available funds in the HELP program;

(b) The availability of other sources of assistance;

(c) The applicant’s efforts to leverage other public or private funds;

(d) Whether the project is financially feasible and the financial strength and history of the prospective recipient;

(e) The location of the project site, including its proximity to transportation, shopping, social, commercial and recreational facilities, medical services and such other facilities and services that best serve the residents;

(f) Availability of street, sewer, water, utilities and other public services;

(g) Architectural design, including aesthetic quality, soundness of construction, energy efficiency, and suitability to the needs of the residents to be served;

(h) Whether or not the project will include fee ownership of the real property;

(i) Compliance with applicable local comprehensive plan and land use regulations, housing codes and other applicable standards;

(j) Market demand;

(k) The target population to be served;

(l) The experience of the developer, contractors, architects, consultants and management agent in developing, constructing and operating housing projects;

(m) The department’s experience with and the reputation, experience, capacity, legal history and status of the applicant and its agents, representatives, employees and contractors;

(n) Whether the project in comparison to others best achieves the purposes of the HELP program; and

(o) Other factors that the department determines to be relevant including, but not limited to any evaluation criteria in the solicitation documents, HELP Manual, General Manual, or otherwise.

(2) If the department approves an application in whole or in part and if the amount of the HELP assistance or any other department funding approved by the department that was considered by the department in setting the amount of HELP assistance to be provided (“Complementary Funding”) meets or exceeds the threshold amount established in OAR 813-001-0007(1) for review by the State Housing Council, the approval of HELP assistance by the department is subject to review and approval by the council of such HELP funding and any such complementary funding. The council may approve, deny, modify or further condition funding subject to its review. Based upon any relevant council determination, including with respect to complementary funding, approval of HELP funding may be deemed revoked, or be modified and further conditioned.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 456.555, 456.559, 456.625

Hist.: HSG 6-1993(Temp), f. & cert. ef. 10-1-93; HSG 4-1994, f. & cert. ef. 8-1-94; OHCS 12-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 11-2007, f. & cert. ef. 1-11-07; OHCS 15-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 21-2013, f. & cert. ef. 12-18-13

813-130-0100

Form of Assistance; Documentation

(1) The department may provide HELP funds in the form of a grant or a loan, or a combination of both. Loan rates and terms, if applicable shall be determined by the department based on a project’s needs and cash flow, other funding resources, market conditions and an applicant’s capacity to repay HELP funds. Preference will be given to those applicants requesting loans that show sufficient project cash flow to repay the loan. The department normally will notify an applicant in a written reservation letter as to the amount and form of HELP assistance, if any, to be provided, together with notable conditions. Such reservation commitments remain subject to department rules, solicitation requirements, applicable law, and the negotiation, execution and recording (if required) of documents satisfactory to the department.

(2) Each recipient shall, inter alia, execute a use agreement, containing such terms regarding fees, interest rates, repayment terms, performance criteria, reporting requirements, restrictive covenants, and other terms as the department or HUD considers appropriate or necessary for the type and use of assistance provided. Each use agreement must be:

(a) (If the recipient owns the project property at the time of disbursement) recorded as an encumbrance on the project property before any HELP funds are advanced; or

(b) If the recipient does not own the project property at the time of disbursement HELP funds, at the discretion of the department, may be placed in escrow in an escrow account established by the recipient satisfactory to the department, and subject to such further conditions as the department may require, including the recording of restrictive covenants running with the project property for the applicable affordability period with appropriate lien priority and taking effect upon close of escrow.

(3) The department may require a recipient to execute and record such documents satisfactory to the department as it considers appropriate in its sole discretion.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 456.555, 456.559, 456.625

Hist.: HSG 6-1993(Temp), f. & cert. ef. 10-1-93; HSG 4-1994, f. & cert. ef. 8-1-94; OHCS 12-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 11-2007, f. & cert. ef. 1-11-07; OHCS 15-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 21-2013, f. & cert. ef. 12-18-13

813-130-0110

General Administrative and Monitoring Requirements

(1) The department and HUD may perform such reviews or field inspections, including review and copying of documents, as they deem appropriate, inter alia, to ensure program compliance. Project owners must cooperate reasonably with all reviews and field inspections. The department and HUD may require that a recipient take such remedial actions as they determine to be appropriate.

(2) Financial records, supporting documents, and all other pertinent records shall be retained by a project owner for five years after the project affordability period is complete, or after any litigation or audit claim is resolved, whichever is later. The department, HUD, the Inspector General, the General Accounting Office, the Oregon Secretary of State and their representatives shall have access to all books, accounts, documents, records and other property belonging to or in use by the recipient and project owner that relate to the use of HELP funds.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 456.555, 456.559, 456.625

Hist.: HSG 6-1993(Temp), f. & cert. ef. 10-1-93; HSG 4-1994, f. & cert. ef. 8-1-94; OHCS 12-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 11-2007, f. & cert. ef. 1-11-07; OHCS 15-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 21-2013, f. & cert. ef. 12-18-13

813-130-0120

Remedies

(1) If the department determines that there has been any material failure or default with respect to any term, covenant or condition of the solicitation or funding documents, applicable rules, directives, other program requirements, or otherwise, it may exercise any remedy available to it under OAR chapter 813 (including, but not limited to the HELP Manual and General Manual), relevant solicitation or funding documents, or applicable law. Remedies include, but are not limited to corrective orders or directives, rescission, termination of funding, recoupment of HELP funds and other department funding already disbursed with respect to a project — including with applicable interest, recovery for damages, specific performance, injunctive relief, declaratory actions, appointment of a receiver for the project, foreclosure of lien interests, debarment from other department funding, and other remedies available at law.

(2) A material default has occurred, inter alia, if:

(a) The recipient or project owner has not commenced any significant aspect of the project activities within six months after the award of project funding;

(b) The recipient or project owner has not entered into any necessary third party agreement related to the project within ninety (90) days of the award of project funding;

(c) The recipient or project owner has used HELP funds for activities not approved in these rules, solicitation or funding documents, or other HELP program requirements;

(d) The recipient or project owner has not completed activities required by these rules, solicitation or funding documents, or other HELP program requirements in a timely manner;

(e) The recipient or project owner has not complied with any and all affordability, habitability and monitoring compliance obligations required in these rules, solicitation or funding documents, or other HELP program requirements; or

(f) The recipient or project owner lacks continued capacity to carry out any and all obligations under these rules, solicitation or funding documents, or other HELP program requirements.

(3) The remedies set forth in this section are cumulative and not exclusive and are in addition to any other rights and remedies provided in this division, other department rules, the solicitation or funding documents, or otherwise available at law or otherwise. The department may exercise any or all remedies available to it, and in such manner as it, in its sole discretion, determines appropriate.

(4) A recipient or project owner shall take all action necessary to enforce all terms of any agreement with a third party in furtherance of its obligations to the department where such third party materially fails to comply with the terms of such agreement and shall act to recover on behalf of the department any costs, expenses and damages that may arise as a result of the breach of the agreement. The recipient, by its execution of its funding documents with the department regardless of whether the agreement expressly so states, acknowledges and agrees that the department at its sole discretion may:

(a) Enforce the terms of any agreement the recipient has with a third party regarding the program or project; or

(b) Recover any sums that become due as the result of a breach of the agreement.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 456.555, 456.625

Hist.: HSG 6-1993(Temp), f. & cert. ef. 10-1-93; HSG 4-1994, f. & cert. ef. 8-1-94; OHCS 12-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 11-2007, f. & cert. ef. 1-11-07; OHCS 15-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 21-2013, f. & cert. ef. 12-18-13

813-130-0150

Transfer of Recipient, Assistance or Ownership; Subordinate Liens; Encumbrances

(1) A recipient of assistance under the HELP program or owner of a project for which such assistance is provided may not transfer or allow any transfer of any interest in itself, the assistance or the project, allow a subordinate lien or otherwise encumber the project, or any portion or interest therein, unless the department first approves the transfer, subordinate lien or encumbrance in writing. Any such transfer is subject the payment to the department of a transfer charge as established by the department. If the recipient effects or allows a transfer, subordinate lien or encumbrance without prior written approval by the department, the transfer, subordinate lien or encumbrance is voidable and remains subject to the approval or disapproval of the department and the recipient or owner responsible for allowing the transfer, subordinate lien or encumbrance and any transferees, jointly and severally, are subject to a charge by the department with respect to its review and treatment of any such event.

(2) The department may condition its approval upon such terms and conditions as it, in its sole discretion, may require. Factors the department may consider in determining whether or not to give approval to a transfer, subordinate lien or encumbrance include, but are not limited to:

(a) The financial investment of the department in the project;

(b) Preservation of existing housing;

(c) The transferee’s ability to maintain and manage the project for the needs of the residents, the integrity of the housing and as security for the assistance;

(d) The effect of the transfer, subordinate lien or encumbrance upon the financial integrity of the project, repayment of the assistance, use of the project for its intended purposes, and continuity of the program; and

(e) Continued compliance with applicable state and federal laws, rules and regulations.

Stat. Auth.: ORS 456.555

Stats. Implemented: ORS 456.555, 456.559, 456.625

Hist.: HSG 6-1993(Temp), f. & cert. ef. 10-1-93; HSG 4-1994, f. & cert. ef. 8-1-94; OHCS 12-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 11-2007, f. & cert. ef. 1-11-07; OHCS 15-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 21-2013, f. & cert. ef. 12-18-13


Rule Caption: Amends the process for soliciting and administering funding awards for Oregon Affordable Housing Tax Credits

Adm. Order No.: OHCS 22-2013

Filed with Sec. of State: 12-18-2013

Certified to be Effective: 12-18-13

Notice Publication Date: 11-1-2013

Rules Adopted: 813-110-0026, 813-110-0027, 813-110-0032, 813-110-0034, 813-110-0037, 813-110-0045

Rules Amended: 813-110-0005, 813-110-0010, 813-110-0013, 813-110-0015, 813-110-0020, 813-110-0021, 813-110-0022, 813-110-0025, 813-110-0030, 813-110-0035, 813-110-0040

Rules Repealed: 813-110-0012, 813-110-0023, 813-110-0033, 813-110-0050, 813-110-0005(T), 813-110-0010(T), 813-110-0013(T), 813-110-0015(T), 813-110-0020(T), 813-110-0021(T), 813-110-0022(T), 813-110-0025(T), 813-110-0026(T), 813-110-0027(T), 813-110-0030(T), 813-110-0032(T), 813-110-0034(T), 813-110-0035(T), 813-110-0037(T), 813-110-0040(T), 813-110-0045(T)

Subject: The Oregon Affordable Housing Tax Credits Program encourages the creation or preservation of safe, sanitary and affordable housing for lower income Oregonians. The department has completed a significant reorganization on how it solicits and administers funding awards for this program as part of the restructure.

Rules Coordinator: Sandy McDonnell—(503) 986-2012

813-110-0005

Purpose

OAR chapter 813, division 110, is promulgated to carry out the provisions of ORS 317.097 under which the department certifies affordable multifamily rental housing development projects sponsored by government entities, nonprofit corporations and certain persons (“sponsoring entities or “sponsors”) so as to enable a lending institution to claim Oregon affordable housing tax credits (“OAHTC” or” tax credits”) against Oregon taxes with respect to loans for the construction or acquisition, and rehabilitation of such projects.. The purpose of the tax credits is to encourage the creation or preservation of safe, sanitary and affordable housing for lower-income Oregonians. Additional policies and instructions are outlined in the Oregon Affordable Housing Tax Credits (OAHTC) Manual dated June 21, 2013 (the “OAHTC Manual” or “Manual”), incorporated herein by reference. The manual may be accessed online at the department’s website.

Stat. Auth.: ORS 317.097, 456.555

Stats. Implemented: ORS 317.097, 456.508, 456.510, 456.513, 456.559, 456.605, 456.625 & 456.722

Hist.: HSG 1-1990(Temp), f. & cert. ef. 1-5-90; HSG 3-1990(Temp), f. & cert. ef. 3-1-90; HSG 9-1990, f. & cert. ef. 5-11-90; HSG 2-1991(Temp), f. & cert. ef. 8-7-91; HSG 6-1991(Temp), f. & cert. ef. 11-5-91; HSG 3-1992, f. & cert. ef. 2-4-92; HSG 2-1994(Temp), f. & cert. ef. 3-25-94; HSG 7-1994, f. & cert. ef. 9-9-94; HSG 2-1995, f. & cert. ef. 9-25-95; OHCS 7-2006, f. & cert. ef. 5-17-06; OHCS 14-2007(Temp), f. & cert. ef. 10-16-07 thru 4-12-08; OHCS 5-2008, f. & cert. ef. 4-11-08; OHCS 9-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 22-2013, f. & cert. ef. 12-18-13

813-110-0010

Definitions

Certain terms used in this division are defined in ORS chapter 317, the Act, OAR 813-005-0005, and herein. Other terms may be identified in the text of this division (including by incorporation), otherwise in chapter 813, or applicable law.

(1) “Cap” means the maximum amount of tax credits as set by the Legislature in ORS 317.097(6).

(2) “Certification” means the written verification by the department to a lender that a project is a qualified project for which the lending institution may claim a tax credit under the provisions of the Act.

(3) “Firm commitment of financing” means an agreement by a lending institution to make a loan to a specific borrower on a specific property and which will contain all of the terms and conditions that the borrower has to satisfy before said loan can be funded. Payment of a commitment charge by the borrower to the lending institution may be required as a condition precedent to issuance of such an agreement.

(4) “Lending institution” means any insured institution, as defined in ORS 706.008, any mortgage company that maintains an office in this state, or any community development corporation that is organized under the Oregon Nonprofit Corporation Law.

(5) “Preservation project” means housing that was previously developed as affordable housing with a contract for rental assistance from the United States Department of Housing and Urban Development or the United States Department of Agriculture and that is being acquired by a sponsoring entity. The contract for project-based rental assistance must cover at least 25 percent of all units in the project.

(6) “Project,” except as defined under “manufactured dwelling park” or “preservation project,” means one or more units of housing, that has been acquired, constructed, developed, or rehabilitated, including refinanced housing, which will be rented to or owned by households whose incomes are less than 80 percent of area median income. The use of a project for eligible occupants shall be maintained for the term of the credit, in accordance with the Act, unless terminated at the discretion of the department. If there is a foreclosure, deed-in-lieu, or an involuntary transfer where title transfers to the lending institution, that lending institution may dispose of the property at its sole discretion.

(7) “Rent reduction” means the amount rents are reduced from the rents charged at the market interest rate as a result of the Oregon Affordable Housing Tax Credit (OAHTC) subsidy.

(8) “Rent pass through” means the amount of rent reduction made available to the tenants because of the reduced interest rate attributable to the OAHTC subsidy.

Stat. Auth.: ORS 317.097, 456.555

Stats. Implemented: ORS 317.097, 456.625

Hist.: HSG 1-1990(Temp), f. & cert. ef. 1-5-90; HSG 3-1990(Temp), f. & cert. ef. 3-1-90; HSG 9-1990, f. & cert. ef. 5-11-90; HSG 2-1991(Temp), f. & cert. ef. 8-7-91; HSG 6-1991(Temp), f. & cert. ef. 11-5-91; HSG 3-1992, f. & cert. ef. 2-4-92; HSG 2-1994(Temp), f. & cert. ef. 3-25-94; HSG 7-1994, f. & cert. ef. 9-9-94; HSG 2-1995, f. & cert. ef. 9-25-95; OHCS 7-2006, f. & cert. ef. 5-17-06; OHCS 11-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 9-2007, f. & cert. ef. 1-11-07; OHCS 14-2007(Temp), f. & cert. ef. 10-16-07 thru 4-12-08; OHCS 5-2008, f. & cert. ef. 4-11-08; OHCS 1-2009(Temp), f. & cert. ef. 2-9-09 thru 8-7-09; OHCS 2-2009, f. & cert. ef. 8-5-09; OHCS 9-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 22-2013, f. & cert. ef. 12-18-13

813-110-0013

Loan Requirements

In order to be eligible for the tax credit, the loan shall be:

(1) Made to an individual or individuals who own the dwelling, who participate in an owner-occupied community rehabilitation program, and are certified by the local government or its designated agent as having an income level at the time the loan is made of less than 80 percent of the area median income.

(2) Made to a qualified borrower;

(a) Used to finance construction, development, acquisition, or rehabilitation of housing; and,

(b) Accompanied by a written certification by the department that the:

(A) Housing created by the loan is or will be occupied by households earning less than 80 percent of the area median income; and,

(B) Full amount of the savings, from the reduced interest rate provided by the lending institution, is or will be passed on to the tenants in the form of reduced housing payments, regardless of other subsidies provided to the housing project, or

(3) Made to a qualified borrower;

(a) Used to finance construction, development, acquisition, or acquisition and rehabilitation of housing consisting of a manufactured dwelling park;

(b) The housing created by the loan is or will be occupied by a significant number of households, defined as more than 30% of all households at initial tenant qualification, earning less than 80 percent of the area median income; and,

(c) Accompanied by a written certification by the department that the housing will continue to be operated as a manufactured dwelling park during the period for which the tax credit is allowed, or

(4) Made to a qualified borrower;

(a) Used to finance acquisition, or acquisition and rehabilitation, of housing consisting of a preservation project; and,

(b) Accompanied by a written certification by the department that the housing preserved by the loan:

(A) Is or will be occupied by households earning less than 80 percent of the area median income; and

(B) Has a rent assistance contract with the United States Department of Housing and Urban Development (HUD) or the United States Department of Agriculture that will be maintained by the qualified borrower. The contract must provide rental assistance to households in at least 25% of the project units.

Stat. Auth.: ORS 317.097 & 456.515 - 456.720

Stats. Implemented: ORS 317.097

Hist.: OHCS 14-2007(Temp), f. & cert. ef. 10-16-07 thru 4-12-08; OHCS 5-2008, f. & cert. ef. 4-11-08; Suspended by OHCS 9-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 22-2013, f. & cert. ef. 12-18-13

813-110-0015

Application Requirements

(1) For the purpose of enabling a lending institution to obtain a reservation of OAHTC under ORS 317.097, a sponsoring entity may apply to the department for certification of a qualified loan for the allocation of OAHTC consistent with OAR Chapter 813 pursuant to relevant solicitation documents issued by the department including, but not limited to a Notice of Funding Availability (“NOFA”), or as otherwise determined by the department. The application shall provide information satisfactory to the department including but not limited to:

(a) The name, address and telephone number of the sponsoring entity;

(b) Proof as required by the department that the sponsoring entity is a qualified borrower;

(c) The relevant background of the qualified borrower and its management agent and their expertise with housing for low-income persons, if applicable;

(d) A firm commitment of financing by the lending institution to the sponsoring entity for the property that is the subject of the tax credits claim containing all of the terms and conditions that the sponsoring entity has to satisfy before the loan will be funded and including an estimated comparable market interest rate for the proposed loan, the estimated reduced interest rate and the estimated amount of savings or a letter of intent for the purpose of a reservation under OAR 813-110-0030;

(e) The name, address and contact person of the lending institution making the loan;

(f) A description of the project, including the type of housing or program involved, the number and type of housing units to be provided, the number of bedrooms, the address where the project is or will be located, and the federal, state and local agencies or organizations involved in financing or managing the project;

(g) A certification that includes, at a minimum, the statement that all information in the application is true, complete and accurately describes the project; and,

(h) An agreement by the sponsoring entity to execute restrictive covenants satisfactory to the department to which covenants will be recorded at the time of loan closing.

(i) A demonstration relating to occupancy of the units in the project, as required by section (2) of this section;

(j) A demonstration that the project meets the minimum requirements of any other department program used by the project, as required by subsection (3) of this section;

(k) Any additional information or actions requested by the department; and

(l) A certification by the sponsoring entity that includes, at a minimum, the statement that all information in the application is true, complete and accurately describes the project.

(2) The following provisions apply to the demonstration relating to occupancy of units that is required in subsection (1) of this section:

(a) A demonstration for a project other than a manufactured dwelling park must show that units constructed or rehabilitated with OAHTC will be occupied by households earning less than 80 percent of adjusted area median income at the time of initial occupancy.

(b) In the case of a preservation project or a manufactured dwelling park awarded after September 27, 2007, pass-through is not required for a certification produced on or after September 27, 2007.

(c) For a project other than a project to which paragraph (b) of this subsection applies, the demonstration must show that at the time the project is initially rented or purchased, and thereafter for the term of the OAHTC or twenty years, whichever is longer, the sponsor will pass the benefits of the project’s reduced loan interest rate to tenant or homeowner households whose earnings are less than 80 percent of area median income at the time of initial tenant or homeowner qualification.

(d) A demonstration for a manufactured dwelling park must show that the project meets the occupancy requirements applicable to manufactured dwelling parks in ORS 317.097.

(3) Because the OAHTC Program is intended to lower rents below the level that would obtain after all other subsidies have been applied, a project that uses one or more other department programs must demonstrate that the project meets or will meet the minimum requirements of those other programs before application of the OAHTC subsidy rent reduction. For example, if an applicant has applied for tax credits under the Low Income Housing Tax Credits (LIHTC) program and that application indicated a target of 60 percent of area median income rents, the application under this rule must show the project is feasible at the targeted 60 percent median rents without the OAHTC subsidy. The OAHTC subsidy must be applied to reduce rents below the 60 percent level and must be passed on directly to the OAHTC qualified tenants or homeowners in its entirety although the pass-through need not be distributed evenly among the units.

(4) Rental units covered by section 8 project based assistance are not eligible to be used to demonstrate pass-through savings for the OAHTC program because the rent reductions related to the OAHTC subsidy typically would not be on to the tenants in the form of a rent reduction from what the tenants would otherwise pay, and therefore, would not achieve pass-through savings. Projects that are partially covered with project based assistance may qualify to use OAHTC on the remaining units by, inter alia, demonstrating pass-through interest savings that result in appropriate as rent reductions to the OAHTC qualified tenants.

(5) The department may require more extensive and enduring affordability covenants than provided in subsections (2) through (4) as may be reflected in relevant solicitation documents or otherwise.

(6) The department may require a non-refundable application charge and may assess such other charges as it deems reasonable to cover anticipated costs of processing the application, coordinating with other funding or project partners, negotiating and recording required documents or additional administration. Certain other charges are identified later in these rules.

Stat. Auth.: ORS 317.097

Stats. Implemented: ORS 317.097, 456.508, 456.510, 456.513, 456.559, 456.605, 456.722

Hist.: HSG 1-1990(Temp), f. & cert. ef. 1-5-90; HSG 3-1990(Temp), f. & cert. ef. 3-1-90; HSG 9-1990, f. & cert. ef. 5-11-90; HSG 2-1991(Temp), f. & cert. ef. 8-7-91; HSG 6-1991(Temp), f. & cert. ef. 11-5-91; HSG 3-1992, f. & cert. ef. 2-4-92; HSG 2-1994(Temp), f. & cert. ef. 3-25-94; HSG 7-1994, f. & cert. ef. 9-9-94; HSG 2-1995, f. & cert. ef. 9-25-95; OHCS 7-2006, f. & cert. ef. 5-17-06; OHCS 11-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 9-2007, f. & cert. ef. 1-11-07; OHCS 14-2007(Temp), f. & cert. ef. 10-16-07 thru 4-12-08; OHCS 5-2008, f. & cert. ef. 4-11-08; OHCS 9-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 22-2013, f. & cert. ef. 12-18-13

813-110-0020

Application Review

(1)(a) Applications for a reservation of OAHTC, or for an OAHTC certification of award if conditions are met as required under OAR 813-110-0015, are subject to department review:

(b) Any resulting reservation or certification of award may include modifications to the application and may be rescinded if conditions subsequent are not satisfied, including but not limited to the requirement to timely acquire a qualified funder who will appropriately use the tax credits.

(2) When a reservation or certification of award is made through a solicitation process, the reservation or certification of award will be subject to conditions identified in the solicitation documents that may differ from or supplement OAR 813-110-0021. When a reservation or certification of award is made outside of a solicitation process, the department may specify additional conditions that may differ from or supplement OAR 813-110-0021.

(3) Criteria that the department may apply in considering an application include but are not limited to the following:

(a) The experience of the sponsoring entity, property management agent and other involved person in providing low-income housing;

(b) Estimated rents that would have to be charged or the purchase price that would be required in order to make the project financially feasible, for the type and location of housing to be provided;

(c) The dollar amount of estimated savings from the reduction in rents from the estimated rents under paragraph (b) of this subsection, or the reduction in purchase price, owing to the OAHTC subsidy;

(d) The estimated rent reduction or purchase price reduction under paragraph (c) of this subsection;

(e) How long the tax credits are needed to meet the sponsoring entity’s goals of long- term safe, sanitary and affordable housing;

(f) Except for manufactured dwelling park or preservation projects awarded after September 27, 2007, the sponsoring entity’s statement that the proposed rent reduction or reduced purchase price will be maintained for or offered to households whose annual incomes are less than 80 percent of area median income;

(g) Restrictive covenants that provide for, but are not limited to, appropriate habitability, income and rent restrictions;

(h) A certifying statement from the agent for the lending institution of a local owner-occupied community rehabilitation program, if applicable;

(j) The target population to be served;

(j) The need for such affordable housing in the area to be served;

(k) Consistency with the comprehensive housing plan for the state or community;

(l) The location of the project site, including its proximity to transportation, shopping, social, commercial and recreational facilities, medical services and such other facilities and services that best serve the residents;

(m) Availability of street, sewer, water, utilities and other public services;

(n) Architectural design, including aesthetic quality, soundness of construction, energy efficiency, and suitability to the needs of the residents to be served;

(o) Compliance with applicable local comprehensive plan and land use regulations, housing codes and other applicable standards;

(p) The experience of the developer, contractors, architects, consultants and management agents in developing, constructing and operating housing projects; and

(q) The department’s experience with and the reputation, experience and capacity of the sponsoring entity, project owner and developer and their representatives, employees and contractors.

(4) Applications are subject to review by the department under this rule according to a process that may include, but need not be limited to an invitation only, a first-come first-reviewed or a competitive review process.

(5) The amount of a reservation or certification of award made pursuant to an application under this division, together with the total outstanding tax credits, may not exceed the maximum allowable amount of tax credits for a project established under program requirements including, but not limited to those established in ORS 317.097.

Stat. Auth.: ORS 317.097

Stats. Implemented: ORS 317.097, 456.508, 456.510, 456.513, 456.559, 456.605, 456.722

Hist.: HSG 1-1990(Temp), f. & cert. ef. 1-5-90; HSG 3-1990(Temp), f. & cert. ef. 3-1-90; HSG 9-1990, f. & cert. ef. 5-11-90; HSG 2-1991(Temp), f. & cert. ef. 8-7-91; HSG 6-1991(Temp), f. & cert. ef. 11-5-91; HSG 3-1992, f. & cert. ef. 2-4-92; HSG 7-1994, f. & cert. ef. 9-9-94; HSG 2-1995, f. & cert. ef. 9-25-95; OHCS 7-2006, f. & cert. ef. 5-17-06; OHCS 14-2007(Temp), f. & cert. ef. 10-16-07 thru 4-12-08; OHCS 5-2008, f. & cert. ef. 4-11-08; OHCS 9-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 22-2013, f. & cert. ef. 12-18-13

813-110-0021

Reservation in Lieu of Certification

(1) For a reservation granted under OAR 813-110-0020:

(a) Except as provided in subsection (2) of this section, the reservation is valid for 180 days and is subject to extension by the department at its sole discretion; and

(b) Is a confirmed reservation unless the lending institution modifies the original letter of intent or there is a failure to comply with material terms of the reservation.

(2) A reservation for a sponsoring entity that is a local government entity providing a community rehabilitation program or rental project may be made for the period of proposed financing and may be extended at the discretion of the department.

(3) A sponsor that furnishes the department a firm commitment of financing prior to the expiration of a reservation is eligible, subject to other program requirements, for issuance of a certification.

(4) A sponsor to which a reservation has been issued shall notify the department of any change in the lending institution as well as any failure to comply with a material term of the reservation.

Stat. Auth.: ORS 317.097

Stats. Implemented: ORS 317.097, 456.508, 456.510, 456.513, 456.559, 456.605, 456.722

Hist.: HSG 6-1991(Temp), f. & cert. ef. 11-5-91; HSG 3-1992, f. & cert. ef. 2-4-92; HSG 7-1994, f. & cert. ef. 9-9-94; HSG 2-1995, f. & cert. ef. 9-25-95; OHCS 7-2006, f. & cert. ef. 5-17-06; OHCS 14-2007(Temp), f. & cert. ef. 10-16-07 thru 4-12-08; OHCS 5-2008, f. & cert. ef. 4-11-08; OHCS 9-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 22-2013, f. & cert. ef. 12-18-13

813-110-0022

Set-Aside

(1) A portion of the maximum amount of tax credits established in ORS 317.097 is subject to either or both of the following:

(a) A set-aside by the department for projects that meet department identified goals under the OAHTC program.

(b) One or more set-asides established by the department from time to time, when directed by the State Housing Council, to meet housing needs in various economic or geographic regions of the state.

(2) At the department’s direction, a sponsoring entity that does not qualify for a set-aside under subsection (1) of this section may request that the department approve a set-aside on alternate grounds as provided in this subsection. The sponsoring entity must demonstrate to the department that the sponsoring entity meets criteria similar to those used in the needs assessment in Oregon’s plan that is approved by the U.S. Department of Housing and Urban Development (HUD) and that describes the needs, resources, priorities and proposed activities to be undertaken with respect to programs of that department. The department may approve or deny a set-aside on the basis of its consideration of a request under this subsection.

Stat. Auth.: ORS 317.097

Stats. Implemented: ORS 317.097, 456.508, 456.510, 456.513, 456.559, 456.605, 456.722

Hist.: HSG 6-1991(Temp), f. & cert. ef. 11-5-91; HSG 3-1992, f. & cert. ef. 2-4-92; HSG 7-1994, f. & cert. ef. 9-9-94; HSG 2-1995, f. & cert. ef. 9-25-95; OHCS 7-2006, f. & cert. ef. 5-17-06; OHCS 14-2007(Temp), f. & cert. ef. 10-16-07 thru 4-12-08; OHCS 5-2008, f. & cert. ef. 4-11-08; OHCS 9-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 22-2013, f. & cert. ef. 12-18-13

813-110-0025

Certification of Eligible Projects

(1) When the department determines that it may issue a certification to a lending institution as authorized by ORS 317.097, the certification will include, inter alia, the following as applicable:

(a) The proposed borrower is an eligible sponsor;

(b) The proposed borrower has demonstrated that the required benefits will be passed on to households earning less than 80 percent of area median income, except for manufactured dwelling park projects, according to program requirements including, but not limited to those in ORS 317.097 and this division.

(c) The length of the period eligible for tax credits; and

(d) The loan does not exceed the maximum limitation for total loan balances.

(2) A certification is based on information provided by the sponsoring entity in the application and accumulated from the lending institution’s annual reports required by OAR 813-110-0030 and conditioned, inter alia, upon the accuracy of such information.

(3) A certification is valid for the purpose of the tax credit only if the information on which the certification is based, other than estimates based on interest rates and other changes made with the approval of the department, is unchanged when the loan is closed for the project and when funding documents satisfactory to the department including, but not limited to an appropriate declaration of restrictive covenants have been executed and, as required by the department, recorded in the official records of the appropriate counties.

(4) To establish the use of a certificate for a fixed rate term loan, a lending institution shall, inter alia, complete the loan closing information section of the certificate and send the original to the department along with evidence satisfactory to the department that an appropriate declaration of restrictive covenants has been recorded or will be recorded at the close of permanent financing (as required by the department) against the project property.

(5) When the department approves a tax credit for a construction loan, the lending institution shall complete the loan closing information section of the certificate and send the original to the department, and may record the restrictive covenants.

Stat. Auth.: ORS 317.097

Stats. Implemented: ORS 317.097, 456.508, 456.510, 456.513, 456.559, 456.605, 456.722

Hist.: HSG 1-1990(Temp), f. & cert. ef. 1-5-90; HSG 3-1990(Temp), f. & cert. ef. 3-1-90; HSG 9-1990, f. & cert. ef. 5-11-90; HSG 2-1991(Temp), f. & cert. ef. 8-7-91; HSG 6-1991(Temp), f. & cert. ef. 11-5-91; HSG 3-1992, f. & cert. ef. 2-4-92; HSG 7-1994, f. & cert. ef. 9-9-94; HSG 2-1995, f. & cert. ef. 9-25-95; OHCS 7-2006, f. & cert. ef. 5-17-06; OHCS 14-2007(Temp), f. & cert. ef. 10-16-07 thru 4-12-08; OHCS 5-2008, f. & cert. ef. 4-11-08; OHCS 9-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 22-2013, f. & cert. ef. 12-18-13

813-110-0026

Reservations, Certifications and Other Commitments Subject to State Housing Council Approval

If the department provides a reservation, certification of award or otherwise commits to an award of OAHTC under this division and if the amount of any related tax credits or any other department funding approved by the department that was considered by the department in setting the amount of the tax credits (“Complementary Funding”) meets or exceeds the threshold amount established in OAR 813-001-0007(1) for review by the State Housing Council, the reservation, certification or other commitment is subject to review and approval by the council of such tax credit assistance and any such complementary funding. The council may approve, deny, modify or further condition funding assistance subject to its review. Based upon any relevant council determination, including with respect to complementary funding, any subject reservation, certification or other commitment may be deemed revoked, be modified or be further conditioned.

Stat. Auth.: ORS 317.097

Stats. Implemented: ORS 317.097, 456.508, 456.510, 456.513, 456.559, 456.605, 456.625 and 456.722

Hist.: OHCS 22-2013, f. & cert. ef. 12-18-13

813-110-0027

Certification Request by Lending Institution

(1) A sponsor shall submit a separate application for each certification of a sponsoring entity requested under the Oregon Affordable Housing Tax Credits program.

(2) A sponsor shall pay a charge to the department as assessed by the department for each application for a certification.

Stat. Auth.: ORS 317.097

Stats. Implemented: ORS 317.097, 456.508, 456.510, 456.513, 456.559, 456.605, 456.722

Hist.: OHCS 9-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 22-2013, f. & cert. ef. 12-18-13

813-110-0030

Monitoring and Reporting Requirements

(1) A lending institution claiming state tax credits under ORS 317.097 is subject to monitoring by the department. A lending institution shall submit to the department by May 1 of each year a report satisfactory to the department in which the lending institution affirms that the lending institution has met all requirements imposed by law to qualify for the tax credits. The report must be submitted on a form furnished by the department and signed by an officer of the lending institution, and:

(a) May not include any representation as to the performance by the sponsoring entity; and

(b) Shall include, at a minimum, the name and address of the institution, the name and phone number of a contact person, the number of loans for which tax credits will be claimed, the amount of credit claimed, the annual charge payment, the dates the loans were closed, the location of the projects financed by those loans, the amount loaned for each project, the outstanding balances of all loans, and the average annual balance for each loan.

(2) A project receiving OAHTC is subject to reviews and field inspections that the department determines to be necessary or appropriate including, but not limited to ensuring the sponsoring entity’s and project owner’s compliance with program requirements including, but not limited to OAR chapter 813 (including the OAHTC Manual and General Manual), department directives, relevant documents, applicable law or otherwise. The project owner shall cooperate fully with all reviews and field inspections, comply with any resulting correction directives, and shall make all records available for inspection and copying.

(3) A project owner shall retain financial records, supporting documents and all other pertinent records for six years after the project affordability period is complete, or after any litigation or audit claim is resolved, whichever is later.

Stat. Auth.: ORS 317.097

Stats. Implemented: ORS 317.097, 456.508, 456.510, 456.513, 456.559, 456.605, 456.722

Hist.: HSG 1-1990(Temp), f. & cert. ef. 1-5-90; HSG 3-1990(Temp), f. & cert. ef. 3-1-90; HSG 9-1990, f. & cert. ef. 5-11-90; HSG 2-1991(Temp), f. & cert. ef. 8-7-91; HSG 6-1991(Temp), f. & cert. ef. 11-5-91; HSG 3-1992, f. & cert. ef. 2-4-92; HSG 7-1994, f. & cert. ef. 9-9-94; HSG 2-1995, f. & cert. ef. 9-25-95; OHCS 7-2006, f. & cert. ef. 5-17-06; OHCS 11-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 9-2007, f. & cert. ef. 1-11-07; OHCS 14-2007(Temp), f. & cert. ef. 10-16-07 thru 4-12-08; OHCS 5-2008, f. & cert. ef. 4-11-08; OHCS 9-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 22-2013, f. & cert. ef. 12-18-13

813-110-0032

Supplemental Application Charge

A sponsoring entity of a project under the OAHTC program shall pay a supplemental application charge, as established by the department from time to time, when the sponsoring entity requests additional resources for a project that has already been funded under the program.

Stat. Auth.: ORS 317.097

Stats. Implemented: ORS 317.097, 456.508, 456.510, 456.513, 456.559, 456.605 and 456.722

Hist.: OHCS 9-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 22-2013, f. & cert. ef. 12-18-13

813-110-0034

Transfer of Loan, Owner, or Project

(1) An owner of a project that has received OAHTC assistance or recipient of a loan subsidized by such assistance shall not transfer or allow any transfer of any interest in itself, the loan or the project or otherwise encumber the project, or any portion or interest therein, unless the department first approves the transfer or encumbrance in writing. Any such transfer is subject to payment to the department by the borrower or owner, as applicable, of a transfer charge as required by the department. If the borrower or owner effects or allows a transfer without prior written approval by the department, the transfer is voidable and remains subject to the approval or disapproval of the department and the borrower or owner and transferees, jointly and severally, are subject to a transfer review charge by the department.

(2) The department may condition its approval upon such terms and conditions as it, at its sole discretion, may require. Factors the department may consider in determining whether or not to give approval to a transfer include but are not limited to:

(a) The financial investment of the department in the project;

(b) Preservation of existing housing;

(c) The proposed owner’s ability to maintain and manage the property for the needs of the residents, the integrity of the housing and as security for the loan;

(d) The effect of the transfer upon the financial integrity of the project, repayment of the loan, use of the project for its intended purposes, and continuity of the program; and

(e) Continued compliance with applicable program requirements including, but not limited to terms and conditions of funding documents and state and federal laws, rules and regulations.

Stat. Auth.: ORS 317.097

Stats. Implemented: ORS 317.097, 456.508, 456.510, 456.513, 456.559, 456.605, 456.722

Hist.: OHCS 9-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 22-2013, f. & cert. ef. 12-18-13

813-110-0035

Community Rehabilitation Project Certification

(1) A local government or its designated agent that certifies a participant in a community rehabilitation program shall certify to the department that the tax credits for the community rehabilitation program fall within the maximum amount of tax credits authorized in ORS 317.097.

(2) A participant in a community rehabilitation program includes any individual, nonprofit corporation or unit of local government that re-loans proceeds to an individual participating in the community rehabilitation program.

(3) A local government entity shall certify to the department that the local community rehabilitation standards will be met for all relending of proceeds from a certified loan.

Stat. Auth.: ORS 317.097 & 456.515 - 456.720

Stats. Implemented: ORS 317.097

Hist.: HSG 9-1990, f. & cert. ef. 5-11-90; HSG 2-1991(Temp), f. & cert. ef. 8-7-91; HSG 6-1991(Temp), f. & cert. ef. 11-5-91; HSG 3-1992, f. & cert. ef. 2-4-92; OHCS 7-2006, f. & cert. ef. 5-17-06; OHCS 11-2006(Temp), f. & cert. ef. 8-4-06 thru 1-30-07; OHCS 9-2007, f. & cert. ef. 1-11-07; OHCS 14-2007(Temp), f. & cert. ef. 10-16-07 thru 4-12-08; OHCS 5-2008, f. & cert. ef. 4-11-08; OHCS 9-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 22-2013, f. & cert. ef. 12-18-13

813-110-0037

Use of Project; Transfer of Title

(1) The sponsoring entity and the owner of a project, including any successors, assigns or transferees shall maintain operate and maintain the project in a manner consistent with program requirements including, but not limited to its use for eligible occupants, for the term of the tax credits or twenty years, whichever is longer.

(2) If the title to a project transfers to the lending institution because of a foreclosure, a deed-in-lieu of foreclosure or an involuntary transfer under a bankruptcy proceeding, the lending institution may dispose of the property at its sole discretion.

Stat. Auth.: ORS 317.097

Stats. Implemented: ORS 317.097, 456.508, 456.510, 456.513, 456.559, 456.605 and 456.722

Hist.: OHCS 9-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 22-2013, f. & cert. ef. 12-18-13

813-110-0040

Monitoring

(1) If the department determines that the owner of a project under the OAHTC program is not complying with any applicable rule, law, document or other OAHTC program requirement, the department may notify the lending institution, the owner and the sponsoring entity. In the notice, the department will describe the matter of noncompliance, the required correction and the date by which correction must be made. The owner and sponsoring entity may comment on the notice within the period specified by the department and submit any accompanying explanation and documentation.

(2) The owner of a project shall correct the noncompliance, if possible, and pay a penalty established by the director for noncompliance under subsection (1) of this section and any further penalties assessed by the department if the noncompliance is not corrected to the satisfaction of the director within the period established by the department. In assessing a penalty under this section, the department shall take into consideration any comments submitted by the owner and sponsoring entity with respect to the noncompliance and their correction efforts, if any.

(3) Penalties assessed under this rule may not exceed three times the amount of the eligible tax credit per year.

(4) Any penalties assessed under this rule are the liability of the owner and not the liability of the lending institution.

Stat. Auth.: ORS 317.097

Stats. Implemented: ORS 317.097, 456.508, 456.510, 456.513, 456.559, 456.605, 456.722

Hist.: HSG 6-1991(Temp), f. & cert. ef. 11-5-91; HSG 3-1992, f. & cert. ef. 2-4-92; HSG 2-1995, f. & cert. ef. 9-25-95; OHCS 7-2006, f. & cert. ef. 5-17-06; OHCS 9-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 22-2013, f. & cert. ef. 12-18-13

813-110-0045

Remedies

(1) If the department determines that there has been any material failure or default with respect to any term, covenant or condition of the applicable solicitation or funding documents, applicable rules, directives, other program requirements, or otherwise, it (or as applicable, the department of Revenue) may exercise any remedy available under OAR chapter 813 (including, but not limited to sanctions provided in OAR 813-110-0040, and remedies available in the OAHTC Manual and General Manual), relevant solicitation or funding documents, or applicable law. Remedies include, but are not limited to corrective orders or directives, sanctions, recapture of OAHTC, recovery for damages, specific performance, injunctive relief, declaratory actions, appointment of a receiver for the project, foreclosure of lien interests, debarment from other department funding, and other remedies available at law.

(2) The remedies set forth in this section are cumulative and not exclusive and are in addition to any other rights and remedies provided in this division, other department rules, the solicitation or funding documents, or otherwise available at law or otherwise. The department may exercise any or all remedies available to it, and in such manner as it, in its sole discretion, determines appropriate.

Stat. Auth.: ORS 314.097, 456.555

Stats. Implemented: ORS 317.097, 456.508, 456.510, 456.513, 456.559, 456.605 and 456.722

Hist.: OHCS 9-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 22-2013, f. & cert. ef. 12-18-13


Rule Caption: Amends the process for soliciting and administering funding awards for the General Housing Account

Adm. Order No.: OHCS 23-2013

Filed with Sec. of State: 12-18-2013

Certified to be Effective: 12-18-13

Notice Publication Date: 11-1-2013

Rules Adopted: 813-055-0065, 813-055-0095

Rules Amended: 813-055-0001, 813-055-0010, 813-055-0020, 813-055-0040, 813-055-0050, 813-055-0075, 813-055-0085, 813-055-0105, 813-055-0115

Rules Repealed: 813-055-0060, 813-055-0100, 813-055-0110, 813-055-0001(T), 813-055-0010(T), 813-055-0020(T), 813-055-0040(T), 813-055-0050(T), 813-055-0065(T), 813-055-0075(T), 813-055-0085(T), 813-055-0095(T), 813-055-0105(T), 813-055-0115(T)

Subject: The General Housing Account carries out the allocation of monies deposited in the General Housing Account by meeting the critical housing needs, building the organizational capacity of affordable housing partners throughout the state, and requires equitable distribution of resources over time based on objective measures of need. The department has completed a significant reorganization as to how it solicits and administers funding awards for this program. These rule changes are designed to reflect the significant reorganization.

Rules Coordinator: Sandy McDonnell—(503) 986-2012

813-055-0001

Purpose

OAR chapter 813, division 55, is promulgated to carry out the allocation of monies deposited in the General Housing Account and to carry out the account’s purpose of meeting critical housing needs, building the organizational capacity of affordable housing partners throughout the state, and requiring equitable distribution of resources over time based on objective measures of need. Additional policies and instructions are outlined in the General Housing Account Program (GHAP) Manual dated June 21, 2013 (the “GHAP Manual” or “Manual”), incorporated herein by reference. The Manual may be accessed online at the department’s website.

Stat. Auth.: ORS 456.555, 458.665

Stats. Implemented: ORS 456.515 - 456.725, 458.665

Hist.: OHCS 5-2009, f. & cert. ef. 12-22-09; OHCS 13-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 23-2013, f. & cert. ef. 12-18-13

813-055-0010

Definitions

Certain terms used in this division are defined in the Act, OAR 813-005-0005, and herein. Other terms may be identified in the text of this division (including by incorporation), otherwise in chapter 813, or applicable law. As used in this division:

(1) “Low income household” means a household that receives more than 50 percent and not more than 80 percent of the median family income for the area, subject to adjustments for family size and for areas with unusually high or low incomes or housing costs, all as determined according to information from the U.S. Department of Housing and Urban Development.

(2) “Very low income household” means a household that receives 50 percent or less of the median family income for the area, subject to adjustments for family size and for areas with unusually high or low incomes or housing costs, all as determined according to information from the U.S. Department of Housing and Urban Development.

Stat. Auth.: ORS 456.555, 458.665

Stats. Implemented: ORS 456.515 - 456.725, 458.665

Hist.: OHCS 5-2009, f. & cert. ef. 12-22-09; OHCS 13-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 23-2013, f. & cert. ef. 12-18-13

813-055-0020

Distribution of GHAP Funds; Eligibility

(1) The department may distribute GHAP program funds consistent with OAR chapter 813 pursuant to relevant solicitation documents including, but not limited to a Notice of Funding Availability (“NOFA”) or as otherwise determined by the department. Funding may take the form of a grant, loan or otherwise as the department determines necessary or appropriate, for either or both of the following purposes:

(a) For financing assistance with respect to the construction, acquisition, rehabilitation or operation of affordable multifamily rental housing developments for low income households or very low income households.

(b) For expanding or building affordable housing development capacity, by enhancing the capacity of non-profit entities and housing authorities to develop affordable housing.

(2) Subject to the limitations of any specific solicitation or distribution, any of the following persons or entities may apply for GHAP assistance with respect to the financing of affordable multifamily rental housing developments:

(a) A nonprofit corporation established under ORS chapter 65;

(b) A housing authority established under ORS 456.055 to 456.235;

(c) A local government as defined in ORS 197.015;

(d) A manufactured dwelling park cooperative as established under ORS 62.800 to 62.815;

(e) A for-profit entity;

(f) A Native-American tribe; or

(g) An individual.

(3) Subject to the limitations of any specific solicitation or distribution, any person or entity including, but not limited to those identified in subsection (2) is eligible to apply for GHAP assistance to enhance the capacity of non-profit entities and housing authorities to develop affordable housing.

Stat. Auth.: ORS 456.555, 458.665

Stats. Implemented: ORS 456.515 - 456.725, 458.665

Hist.: OHCS 5-2009, f. & cert. ef. 12-22-09; OHCS 13-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 23-2013, f. & cert. ef. 12-18-13

813-055-0040

Application Procedure and Requirements

(1) The process to obtain GHAP assistance typically will be spelled out in the solicitation documents issued by the department. In addition to, or in lieu of formal solicitation documents, the department may provide other means for accessing GHAP assistance. Additional direction and guidance may be found in the GHAP Manual and General Manual.

(2) The department may require payment of a non-refundable application charge from any applicant requesting GHAP funds through a formal solicitation or otherwise.

(3) The department may require payment of other charges with respect to its reasonably anticipated costs in processing applications, coordinating programs or with other project participants, providing funding, negotiating documents, monitoring compliance, evaluating and documenting transfers, or otherwise. The department may require payment of a supplemental application charge from applicants requesting additional resources for projects that have already been funded by the department.

(4) The department may refuse to process applications or terminate processing if it determines an application to be incomplete or that it fails to satisfy threshold standards for further processing.

(5) An applicant shall submit to the department, on the application form and in accordance with the application process prescribed by the department, such information as the department may require, including but not limited to:

(a) The name, address and telephone number of applicant;

(b) The type of assistance requested;

(c) A written description of the project, including the number of units, unit mix, proposed rents, site location, amenities, and any other information requested by the department.

(d) A statement of project purpose indicating the housing type and residents to be housed, and the length of the affordability period;

(e) A pro forma of project income and expenses;

(f) The amount of funding requested and total project development costs, including a description and documentation of all project funding sources and uses;

(g) A narrative of the applicant’s experience in developing affordable housing, including the experience of all members of the project development team;

(h) A narrative of the experience of the applicant’s management team or agent as it relates to operating affordable housing projects;

(i) A description of resident services, if any, to be provided;

(j) A narrative of the applicant’s experience in providing resident services, including the experience of any relevant project team members;

(k) A description of the applicant’s readiness to proceed with project activities;

(l) A schedule for completion of project activities;

(m) The need of a nonprofit or housing authority to build its capacity to develop and operate housing serving low income and very low income populations; and

(n) How the nonprofit or housing authority would employ GHAP assistance to build its capacity to develop and operate housing serving low income and very low income populations.

(6) The department may restrict the amount and/or type of assistance available in any solicitation or other provision of assistance and restrict the type or number of applicants or recipients eligible for assistance in a particular funding process.

Stat. Auth.: ORS 456.555, 458.665

Stats. Implemented: ORS 456.515 - 456.725, 458.665

Hist.: OHCS 5-2009, f. & cert. ef. 12-22-09; OHCS 13-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 23-2013, f. & cert. ef. 12-18-13

813-055-0050

Application Review

(1) An application for assistance from the GHAP program is subject to the department’s evaluation and approval, disapproval or modification according to criteria in the solicitation documents or otherwise that may include, but are not limited to the following:

(a) The amount of available funds in the GHAP program;

(b) The availability of other sources of assistance;

(c) The applicant’s efforts to leverage other public or private funds;

(d) Whether the project is financially feasible and the financial strength and history of the prospective recipient;

(e) The location of the project site, including its proximity to transportation, shopping, social, commercial and recreational facilities, medical services and such other facilities and services that best serve the residents;

(f) Availability of street, sewer, water, utilities and other public services;

(g) Architectural design, including aesthetic quality, soundness of construction, energy efficiency, and suitability to the needs of the residents to be served;

(h) Whether or not the project will include fee ownership of the real property;

(i) Compliance with the consolidated plan, applicable local comprehensive plan, land use regulations, housing codes and other applicable standards;

(j) Market demand;

(k) The target population to be served;

(l) The experience of the developer, contractors, architects, consultants and management agent in developing, constructing and operating housing projects;

(m) The department’s experience with and the reputation, experience, capacity and legal history and status of the applicant and its agents, representatives, employees and contractors;

(n) Whether the project in comparison to others best achieves the purposes of the GHAP program;

(o) The need of a nonprofit or housing authority to build its capacity to develop and operate housing serving low income and very low income populations;

(p) How the nonprofit or housing authority proposes to use GHAP funds to build its capacity to develop and operate housing serving low income and very low income populations;

(q) Other factors that the department determines to be relevant including, but not limited to any evaluation criteria in the solicitation documents, GHAP Manual, General Manual, or otherwise.

(2) If the department approves an application in whole or in part and if the amount of the GHAP assistance or any other department funding approved by the department that was considered by the department in setting the amount of GHAP assistance to be provided (“Complementary Funding”) meets or exceeds the threshold amount established in OAR 813-001-0007(1) for review by the State Housing Council, the approval of GHAP assistance by the department is subject to review and approval by the council of such GHAP funding and any such complementary funding. The council may approve, deny, modify or further condition funding subject to its review. Based upon any relevant council determination, including with respect to complementary funding, approval of GHAP funding may be deemed revoked, or be modified and further conditioned.

Stat. Auth.: ORS 456.555, 458.665

Stats. Implemented: ORS 456.515 - 456.725, 458.665

Hist.: OHCS 5-2009, f. & cert. ef. 12-22-09; OHCS 13-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 23-2013, f. & cert. ef. 12-18-13

813-055-0065

Form of Assistance; Documentation

(1) The department may provide GHAP funds in the form of a grant or a loan, or a combination of both. Loan rates and terms, if applicable shall be determined by the department based on a project’s or applicant’s needs and cash flow, other funding resources, market conditions and an applicant’s capacity to repay GHAP funds. Preference may be given to those applicants requesting loans that show sufficient project cash flow to repay the loan. The department normally will notify an applicant in a written reservation letter as to the amount and form of GHAP assistance, if any, to be provided, together with notable conditions. Such reservation commitments remain subject to department rules, solicitation requirements, applicable law, and the negotiation, execution and recording (if required) of documents satisfactory to the department.

(2) Each recipient of project development assistance shall, inter alia, execute funding agreements satisfactory to the department including, but not limited to a project use agreement, containing such terms regarding fees, interest rates, repayment terms, performance criteria, reporting requirements, restrictive covenants, and other terms as the department considers appropriate or necessary for the type and use of assistance provided. Each relevant funding agreement, including the use agreement, must be:

(a) (If the recipient owns the project property at the time of disbursement) recorded as an encumbrance on the project property before any GHAP funds are advanced; or

(b) (If the recipient does not own the project property at the time of disbursement) at the discretion of the department, placed in an escrow account established by the recipient satisfactory to the department and subject to such further conditions as the department may require, including the recording of restrictive covenants running with the project property for the applicable affordability period, with appropriate lien priority and taking effect upon close of escrow.

(3) The department may require a recipient to execute and record such funding documents satisfactory to the department as it considers appropriate in its sole discretion.

Stat. Auth.: ORS 456.555, 458.665

Stats. Implemented: ORS 456.559, 456.620, 456.625, 458.650, 458.665

Hist.: OHCS 13-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 23-2013, f. & cert. ef. 12-18-13

813-055-0075

Distribution and Expenditure of Funds

(1) The department may distribute GHAP funds pursuant to relevant solicitation documents including, but not limited to a NOFA, or otherwise under this division, and pursuant to relevant funding documents.

(2) Distribution of GHAP funds, whether for multifamily affordable housing development or affordable housing capacity building is subject to a general formula developed by the department that provides for an equitable distribution of resources statewide over time based on objective measures of need, including, but not limited to:

(a) The number and percentage of low and very low-income households in an area;

(b) The estimated need for affordable housing as determined by the department and the State Housing Council; and

(c) The need of a nonprofit or housing authority to build its capacity to develop and operate housing serving low- and very- low-income populations.

Stat. Auth.: ORS 456.555, 458.665

Stats. Implemented: ORS 456.559, 456.620, 456.625, 458.650, 458.665

Hist.: OHCS 5-2009, f. & cert. ef. 12-22-09; Renumbered from 813-055-0030, OHCS 7-2013, f. & cert. ef. 6-21-13; OHCS 13-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 23-2013, f. & cert. ef. 12-18-13

813-055-0085

Charges

(1) An applicant requesting General Housing Account funds shall pay an application fee or charge as may be required by the department.

(2) An applicant or owner of a multifamily affordable housing development project that receives GHAP assistance shall pay a monitoring fee or charge as may be required by the department.

(3) The applicant or owner of a project that receives GHAP assistance shall pay such other charges with respect to the department’s anticipated costs and expenses of administration as the department may require.

Stat. Auth.: ORS 456.555, 458.665

Stats. Implemented: ORS 456.515 to 456.725, 458.665

Hist.: OHCS 5-2009, f. & cert. ef. 12-22-09; Renumbered from 813-055-0070, OHCS 7-2013, f. & cert. ef. 6-21-13; OHCS 13-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 23-2013, f. & cert. ef. 12-18-13

813-055-0095

Transfer of Recipient, Assistance or Ownership; Subordinate Liens; Encumbrances

(1) A recipient of GHAP assistance or owner of a project for which such assistance is provided may not transfer or allow any transfer of any interest in itself, the assistance or the project, allow a subordinate lien or otherwise encumber the project, or any portion or interest therein, unless the department first approves the transfer, subordinate lien or encumbrance in writing. Any such transfer is subject to a payment to the department of a fee or charge as may be required by the department. If the recipient effects or allows a transfer, subordinate lien or encumbrance without prior written approval by the department, the transfer, subordinate lien or encumbrance is voidable and remains subject to the approval or disapproval of the department and the recipient or owner responsible for allowing the transfer, subordinate lien or encumbrance and any transferees, jointly and severally, are subject to a charge by the department with respect to its review and treatment of any such event.

(2) The department may condition its approval upon such terms and conditions as it, in its sole discretion, may require. Factors the department may consider in determining whether or not to give approval to a transfer, subordinate lien or encumbrance include, but are not limited to:

(a) The financial investment of the department in the project or recipient;

(b) Preservation of existing housing;

(c) Preservation of affordable housing development capacity;

(d) The transferee’s ability to maintain and manage the project for the needs of the residents, the integrity of the housing and as security for the assistance;

(e) The effect of the transfer, subordinate lien or encumbrance upon the financial integrity of the project, repayment of the assistance, use of the project for its intended purposes, and continuity of the program; and

(f) Continued compliance with applicable state and federal laws, rules and regulations.

Stat. Auth.: ORS 456.555, 458.665

Stats. Implemented: ORS 456.515 - 456.725, 458.665

Hist.: OHCS 13-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 23-2013, f. & cert. ef. 12-18-13

813-055-0105

General Administrative and Monitoring Requirements

(1) A recipient of GHAP funds shall submit to the department annually a report satisfactory to the department for the purpose, inter alia, of compliance monitoring by same. The recipient shall submit such other information as the department may from time to time require.

(2) A recipient of GHAP funds is subject to reviews and field inspections that the department determines to be necessary or appropriate including, but not limited to ensuring the recipient’s and project owner’s compliance with program requirements including, but not limited to OAR chapter 813 (including the GHAP Manual and General Manual), department directives, funding documents, or otherwise. The recipient and project owner shall cooperate fully with all reviews and field inspections, timely comply with any resulting correction directives, and make all records available for inspection and copying.

(3) A recipient of GHAP assistance or owner of a project receiving such assistance shall retain financial records, supporting documents and all other pertinent records for six years after the project affordability period is complete, or after any litigation or audit claim is resolved, whichever is later.

Stat. Auth.: ORS 456.555, 458.665

Stats. Implemented: ORS 456.515 - 456.725, 458.665

Hist.: OHCS 5-2009, f. & cert. ef. 12-22-09; Renumbered from 813-055-0080, OHCS 7-2013, f. & cert. ef. 6-21-13; Renumbered from 813-055-0080, OHCS 13-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 23-2013, f. & cert. ef. 12-18-13

813-055-0115

Remedies

(1) If the department determines that there has been any material failure or default with respect to any term, covenant or condition of the solicitation or funding documents, applicable rules, directives, other program requirements, or otherwise, it may exercise any remedy available to it under any program requirements including, but not limited to OAR chapter 813 (including, but not limited to the GHAPManual and General Manual), relevant solicitation or funding documents, or applicable law. Remedies include, but are not limited to corrective orders or directives, rescission, termination of assistance, recoupment of GHAP funds and other department assistance already disbursed with respect to a project — including with applicable interest, recovery for damages, specific performance, injunctive relief, declaratory actions, appointment of a receiver for the project, foreclosure of lien interests, debarment from department assistance, and other remedies available at law or otherwise.

(2) A material default has occurred, inter alia, if:

(a) The recipient or project owner has not commenced any significant aspect of the project activities within six months after the award of project funding;

(b) The recipient or project owner has not entered into any necessary third party agreement related to the project within ninety (90) days of the award of project funding;

(c) The recipient or project owner has used GHAPfunds for activities not approved in these rules, solicitation or funding documents, or other GHAPprogram requirements;

(d) The recipient or project owner has not completed activities required by these rules, solicitation or funding documents, or other GHAP program requirements in a timely manner;

(e) The recipient or project owner has not complied with any and all affordability, habitability and monitoring compliance obligations required in these rules, solicitation or funding documents, or other GHAPprogram requirements; or

(f) The recipient or project owner lacks continued capacity to carry out any and all obligations under these rules, solicitation or funding documents, or other GHAP program requirements.

(3) The remedies set forth in this section are cumulative and not exclusive and are in addition to any other rights and remedies provided in this division, other department rules, the solicitation or funding documents, or otherwise available at law or otherwise. The department may exercise any or all remedies available to it, and in such manner as it, in its sole discretion, determines appropriate.

(4) A recipient or project owner shall take all action necessary to enforce all terms of any agreement with a third party in furtherance of its obligations to the department where such third party materially fails to comply with the terms of such agreement and shall act to recover on behalf of the department any costs, expenses and damages that may arise as a result of the breach of the agreement. The recipient, by its execution of its funding documents with the Department regardless of whether the agreement expressly so states, acknowledges and agrees that the department at its sole discretion may:

(a) Enforce the terms of any agreement the recipient has with a third party regarding the program or project; or

(b) Recover any sums that become due as the result of a breach of the agreement.

Stat. Auth.: ORS 456.555, 458.665

Stats. Implemented: ORS 456.515 - 456.725, 458.665

Hist.: OHCS 5-2009, f. & cert. ef. 12-22-09; Renumbered from 813-055-0090, OHCS 7-2013, f. & cert. ef. 6-21-13; Renumbered from 813-055-0090, OHCS 13-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 23-2013, f. & cert. ef. 12-18-13


Rule Caption: Amends the requirements and process for public contracts and procurements

Adm. Order No.: OHCS 24-2013

Filed with Sec. of State: 12-18-2013

Certified to be Effective: 12-18-13

Notice Publication Date: 11-1-2013

Rules Adopted: 813-006-0040

Rules Amended: 813-006-0005, 813-006-0010, 813-006-0015, 813-006-0020, 813-006-0025, 813-006-0030

Rules Repealed: 813-006-0005(T), 813-006-0010(T), 813-006-0015(T), 813-006-0020(T), 813-006-0025(T), 813-006-0030(T), 813-006-0035, 813-006-0040(T)

Subject: The rules establish the process and procedures for public contracts and procurement activities by the department. The department completed a significant reorganization as to how it solicits and administers funding awards for department programs as part of an internal restructure. The rule changes are designed to reflect the significant reorganization of the department.

Rules Coordinator: Sandy McDonnell—(503) 986-2012

813-006-0005

Purpose

OAR chapter 813, division 006 is promulgated to establish the procedures for public contracts and procurements by the Department as well as its other contracting and procurement activities. The Department is exempt from all provisions of the Oregon Public Contracting Code as contained in ORS chapters 279A, 279B and 279C, except with respect to certain aspects relating to the procurement of goods and services under ORS chapter 279B. And, the Department has all authority to procure or supervise the procurement, inter alia, of goods, services and personal services for which it is subject to ORS chapter 279B. Also, most contracting by the Department is not covered by the Oregon Public Contracting Code even if it were applicable to the Department. Accordingly, the Department has chosen to fashion its own standards, considerations and procedures with respect to its procurement and contracting activities.

Stat. Auth.: ORS 90.800 – 90.840, 91.886, 317.097, 279A.025, 279A.065, ORS 456.515– 456.725 & 458.210 – 458.650

Stats. Implemented: ORS 90.800 – 90.840, 92.886, 279B, 317.097, 456.515 - 456.725, 307.651 & 458.005 –458.740

Hist.: HSG 14-1987, f. & ef. 12-21-87; HSG 2-1991(Temp), f. & cert. ef. 8-7-91; HSG 8-1991, f. & cert. ef. 12-23-91; OHCS 12-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 24-2013, f. & cert. ef. 12-18-13

813-006-0010

Basic Policy and Approach

(1) The model rules of the Attorney General adopted pursuant to ORS 279A.065 do not apply to the Department. The Department will, however, consider the Attorney General’s model rules for guidance in exercising its contracting and procurement discretion, particularly with respect to procurements of goods and services under ORS chapter 279B. Other factors that the Department may consider include, but are not limited to:

(a) The subject matter of the proposed contract and appropriate means to ensure successful performance at competitive costs where practical;

(b) Specificity with respect to communication and reservation of rights in any procurement;

(c) Clarity in the naming and description of parties as well as consideration of appropriate preferences;

(c) Ascertaining and obtaining appropriate representations and warranties as to the qualifications of parties;

(d) Specificity with respect to consideration and applicable time periods;

(e) Specificity with respect to terms and covenants, particularly as to standards applicable to the performance of all work or delivery of goods;

(f) Identification of remedies and their suitability to protect Department and program interests;

(g) Identification of insurance and other risk mitigation terms and the appropriate balance of such measures with potential risks and costs;

(h) Requirements for compliance with applicable laws, including those applicable to funding sources and nondiscrimination;

(i) Use of appropriate terms with respect to standard provisions such as governing law, venue, waiver, exhibits, merger, etc.

(2) Contracting and procurement procedures, requirements and standards with respect to program loans and similar extensions or advances of funds or other funding awards are set forth in the divisions of OAR chapter 813 that specifically address those programs. Relevant general procedures, requirements and standards are set forth in Divisions 001 – 005, particularly Division 005.

(3) Contracting and procurement procedures related to the investment of Department funds and other financial transactions that cannot practically be established, including with resort to the competitive contractor selection procedures of ORS 279B.050 to 279B.085, will be accomplished in consultation with financial advisors, legal counsel and other appropriate professionals. As a general standard, the Department will seek to employ procedures as are practical to introduce competitive efficiencies and sound selections given the particular circumstances, complex regulations and governing law applicable to such financial and investment transactions.

(4) In contracting for consultant or other personal services, as well as goods or other services, the Department will consider factors including those described above in subsection (1) and employ the following procedures as applicable, except when the Director determines that an emergency or other good cause exists to excuse the Department from one or more of those procedures, such as when the personal services contract involves data processing services. The Department will comply with Executive Department OAR 122-031-0005 or 122-036-0005 for data processing personal services contracts.

(5) The Department will contract for consultant and other personal services: (i) when the specialized skills, knowledge, and resources are not available within the Department; (ii) when the work cannot be done in a reasonable time within the Department’s own work force; (iii) when an independent and impartial evaluation of a situation is required by a consultant or other provider with recognized professional expertise and stature in a field; (iv) when it will be less expensive to contract for the work; (v) when the Department is directed by statute or otherwise to contract for services; or (vi) when the Department otherwise determines that contracting for a consultant or other personal services will best serve the purpose of fulfilling its statutory or other duties. The Department may contract for other goods and services necessary or appropriate for the operation of the Department. Contracts will be awarded only after the approval of the Director or his/her designee, subject to minimum limit exceptions.

(6) Agreements for the services of a contractor who is a member of the Public Employees’ Retirement System and who is employed in another public department usually will be by interagency agreement. Exceptions may be granted by the Director or his/her designee when such an agreement is impractical and when the work will be done on the contractor’s own time. Such exceptions normally will be processed as a personal services contract.

(7) The Department will seek to ensure competition and include performance standards to the maximum extent practicable when awarding personal services contracts as well as financial assistance agreements designed, inter alia, to obtain services in furtherance of a Department-supervised program.

(5) In selecting between two or more equally qualified bidders, preference will be given to individuals residing in Oregon and businesses that have an office in Oregon.

Stat. Auth.: ORS 90.800 – 90.840, 91.886, 317.097, 279A.025, 279A.065, ORS 456.515– 456.725 & 458.210 – 458.650

Stats. Implemented: ORS 90.800 – 90.840, 92.886, 279B, 317.097, 456.515 - 456.725, 307.651 & 458.005 –458.740

Hist.: HSG 14-1987, f. & ef. 12-21-87; HSG 3-1989(Temp), f. & cert. ef. 6-8-89; HSG 6-1989, f. & cert. ef. 11-3-89; HSG 2-1991(Temp), f. & cert. ef. 8-7-91; HSG 8-1991, f. & cert. ef. 12-23-91; OHCS 12-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 24-2013, f. & cert. ef. 12-18-13

813-006-0015

Definitions

(1) Terms used in OAR chapter 813, division 6 have meanings as defined in the Act, in 813-005-0005 and herein.

(2) As used in these rules, unless otherwise indicated by the context:

(a) “Consultant” means an individual or firm that has been found qualified to do specified types of work for the agency and with whom the Department may contract;

(b) “Competitive Procurement” is a formal procurement method whereby proposals or applicants are requested from a number of sources and the Request for Proposals or other solicitation document is widely published or otherwise distributed;

(c) “Noncompetitive Procurement” is procurement through solicitation of a proposal from only one source or on a first- come first-served basis;

(d) “Small Purchase Procurement Procedures” are those relatively simple and informal procurement methods whereby price or rate quotations are obtained from a number of sources and selection made on the basis of costs and other applicable criteria.

Stat. Auth.: ORS 90.800 – 90.840, 91.886, 317.097, 279A.025, 279A.065, ORS 456.515– 456.725 & 458.210 – 458.650

Stats. Implemented: ORS 90.800 – 90.840, 92.886, 279B, 317.097, 456.515 - 456.725, 307.651 & 458.005 –458.740

Hist.: HSG 14-1987, f. & ef. 12-21-87; HSG 3-1989(Temp), f. & cert. ef. 6-8-89; HSG 6-1989, f. & cert. ef. 11-3-89; HSG 2-1991(Temp), f. & cert. ef. 8-7-91; HSG 8-1991, f. & cert. ef. 12-23-91; OHCS 12-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 24-2013, f. & cert. ef. 12-18-13

813-006-0020

Procurement Method

(1) The department will comply with the requirements of ORS 200.035.

(2) The department may allow for preference of or limit competition for a public contract for goods and services or for any other public contract estimated to cost $50,000 or less, to contracting entities owned or controlled by persons described in subsection (1) of ORS279A.100.

(3) The department may participate in, sponsor, conduct, or administer cooperative procurements pursuant to ORS 279A.200 through 279A.225.

(4) Small Purchase Procurement Procedures as outlined in OAR 813-006-0030 may be used for the procurement of goods and services estimated to cost not more than $10,000 per agreement per fiscal year. Price or rate quotations will be sought from at least three qualified sources, if practical. This procedure does not govern program solicitations.

(5) Competitive Procurement procedures as outlined in OAR 813-006-0025 will be used for goods and services, as well as personal service contracts, estimated to cost in excess of $10,000 per agreement per fiscal year. Competitive Procurement may be used for contracts of less than $10,000 whenever the Department determines that it would be prudent and advantageous to do so. Exceptions may be granted to accommodate one or more of the conditions described in section (3) of this rule with the approval of the Director.

(6) Noncompetitive Procurement procedures may be used for goods and services, as well as personal services contracts if:

(a) The item or service is available only from a single source, or the sole source has special skills or special characteristics that are reasonably only available from that source or based upon the particular provider’s expertise, experience or situation;

(b) Public need or emergency weighs against the delay incurred by competitive solicitation;

(c) After solicitation of a number of sources, competition is determined inadequate; or

(d) The contract is a renewal of an existing contract, subject to approval by all required parties.

Stat. Auth.: ORS 90.800 – 90.840, 91.886, 317.097, 279A.025, 279A.065, ORS 456.515– 456.725 & 458.210 – 458.650

Stats. Implemented: ORS 90.800 – 90.840, 92.886, 279B, 317.097, 456.515 - 456.725, 307.651 & 458.005 –458.740

Hist.: HSG 14-1987, f. & ef. 12-21-87; HSG 3-1989(Temp), f. & cert. ef. 6-8-89; HSG 6-1989, f. & cert. ef. 11-3-89; HSG 2-1991(Temp), f. & cert. ef. 8-7-91; HSG 8-1991, f. & cert. ef. 12-23-91; OHCS 12-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 24-2013, f. & cert. ef. 12-18-13

813-006-0025

Competitive Procurement Procedures

(1) A Request for Proposals (RFP) or similar solicitation (collectively, RFP) will be prepared for the contracts for which Competitive Procurement procedures will be used. The RFP will normally include, at a minimum, the following information:

(a) Date and hour by which proposals or other responses must be received;

(b) Return address where proposals or other responses must be received;

(c) Description of work;

(d) Evaluation criteria; and

(e) Department project manager’s name, address and phone number.

(2) The Department will notify persons who have indicated a desire to be notified of contracting opportunities or that have indicated expertise in the subject area, and any other persons deemed necessary, of projects for which an RFP may be issued. Notification of the project for which an RFP may be issued may be announced to the public and may be advertised in appropriate periodicals. The RFP will be sent to all persons responding to the notification in the required manner.

(3) Exceptions to section (2) of this rule may be granted by the Director or his/her designee when the RFP is preceded by a Request for Information (RFI). When an RFI is widely distributed to solicit information and interest in a proposed contract, eligibility for the subsequent RFP may be limited to parties responding to the RFI.

(4) Proposals will be evaluated in accordance with the evaluation criteria included in the RFP. An objective rating system will be used in the evaluation process. Records pertaining to the procurement process and selection of the consultant shall be maintained in the Department’s files.

(5) Exceptions to the notification procedures in sections (2) and (3) of this rule may be granted by the Director or his/her designee if warranted by time, cost, or other relevant considerations.

Stat. Auth.: ORS 90.800 – 90.840, 91.886, 317.097, 279A.025, 279A.065, ORS 456.515– 456.725 & 458.210 – 458.650

Stats. Implemented: ORS 90.800 – 90.840, 92.886, 279B, 317.097, 456.515 - 456.725, 307.651 & 458.005 –458.740

Hist.: HSG 14-1987, f. & ef. 12-21-87; HSG 3-1989(Temp), f. & cert. ef. 6-8-89; HSG 6-1989, f. & cert. ef. 11-3-89; HSG 2-1991(Temp), f. & cert. ef. 8-7-91; HSG 8-1991, f. & cert. ef. 12-23-91; OHCS 3-2012(Temp), f. & cert. ef. 4-2-12 thru 9-28-12; Administrative correction 10-29-12; OHCS 12-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 24-2013, f. & cert. ef. 12-18-13

813-006-0030

Small Purchase Procurement Procedures

(1) A Statement of Work and request for price or rate quotation shall be developed and submitted to prospective contractors with which the Department has had previous successful experience or which are believed by the Department to be qualified to offer the needed services. The Statement of Work and request for quotation may be communicated orally or in writing.

(2) At least three price quotations shall be obtained from qualified sources unless there are fewer than three qualified sources interested in the contract.

(3) Contractor selection shall be made on the basis of the cost estimate and other pertinent information such as qualifications, experience, reference check and project approach.

Stat. Auth.: ORS 90.800 – 90.840, 91.886, 317.097, 279A.025, 279A.065, ORS 456.515– 456.725 & 458.210 – 458.650

Stats. Implemented: ORS 90.800 – 90.840, 92.886, 279B, 317.097, 456.515 - 456.725, 307.651 & 458.005 –458.740

Hist.: HSG 14-1987, f. & ef. 12-21-87; HSG 2-1991(Temp), f. & cert. ef. 8-7-91; HSG 8-1991, f. & cert. ef. 12-23-91; OHCS 12-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 24-2013, f. & cert. ef. 12-18-13

813-006-0040

Discretionary Action

(1) As it deems necessary or appropriate for its purposes, the Department may waive or deviate from the foregoing provisions of this Division to the extent the Department’s statutory authority to employ its own procurement and contracting procedures allow. Factors that the Ddepartment may consider in waiving or deviating from such provision or in determining what other procurement or contracting procedures it will apply in a particular circumstance may include, but are not limited to:

(a) Serving program or other Department purposes;

(b) Collaborating with reputable and effective partners;

(c) Leveraging past resources, experience, or services;

(d) Efficiently and effectively using department resources;

(e) Addressing exigent or unusual circumstances;

(f) Advancing the department or maintenance of safe, sanitary, and affordable housing;

(g) Advancing the delivery and effectiveness or community services;

(h) Building or sustaining the capacity of department partners;

(i) Promoting the coordination of relevant skills, resources, and efforts;

(j) Educating persons and entities concerning housing and community services needs and opportunities; and

(k) Ensuring compliance with department or other applicable standards.

(2) Included within this authority to waive or deviate from such procedures, or to apply other procurement or contracting procedures in particular circumstances, the Department may amend an existing contract without additional competition, inter alia, to extend its term, to modify the compensation, to delete services, or to add any services or goods within the scope of the relevant procurement provided the amendment, in the Department’s determination, is consistent with relevant factors identified in the subsection or consistent with factors otherwise relevant to such action.

Stat. Auth.: ORS 90.800 – 90.840, 91.886, 317.097, 279A.025, 279A.065, ORS 456.515– 456.725 & 458.210 – 458.650

Stats. Implemented: ORS 90.800 – 90.840, 92.886, 279B, 317.097, 456.515 - 456.725, 307.651 & 458.005 –458.740

Hist.: OHCS 12-2013(Temp), f. & cert. ef. 6-21-13 thru 12-18-13; OHCS 24-2013, f. & cert. ef. 12-18-13


Rule Caption: Amends the definition for net worth and adds a definition for pension account.

Adm. Order No.: OHCS 25-2013(Temp)

Filed with Sec. of State: 12-18-2013

Certified to be Effective: 12-18-13 thru 6-16-14

Notice Publication Date:

Rules Amended: 813-300-0010

Subject: Amends the definition for net worth and adds a definition for pension account.

Rules Coordinator: Sandy McDonnell—(503) 986-2012

813-300-0010

Definitions

As used in these rules, unless the context indicates otherwise:

(1) “Account holder” means a member, age 12 or older, of a lower income household that has a net worth of less than $20,000 who is the named depositor of an individual development account.

(2) “Contributor” means a person or entity contributing funds to the Department or to a fiduciary organization for the purpose of matching IDA deposits by an account holder or for funding program plan operations.

(3) “Department” means the Housing and Community Services Department established in ORS 456.555 and, where applicable, its designee.

(4) “Designated beneficiary” means a minor-age member of the account holder’s household who is the beneficiary of an IDA used to pay the member’s extracurricular non-tuition expenses designed to prepare the member for post-secondary education or job training.

(5) “Fiduciary organization” means a non-profit, fund raising organization that is exempt from taxation under section 501(c)(3) of the Internal Revenue Code as amended and in effect on January 1, 1999, or a federally recognized Oregon Indian tribe that is located, to a significant degree, within the boundaries of this state, as selected by the department under these rules.

(6) “Fiduciary organization program plan” or “program plan” means a mission statement by a fiduciary organization and the corresponding detailed plan by it for the solicitation of contributions (tax credit or otherwise) and prospective account holders, the management of IDA’s and their associated personal development plans, and the operation of the fiduciary organization itself — all as approved by the Department and with such modifications as the Department may require. A prospective program plan must accompany any application to the Department for its approval of a fiduciary organization.

(7) “Financial institution” means an organization regulated under ORS Chapters 706 to 716, 722 or 723, or in the case of an account established for the purpose described in 458.685(1)(c) related to college savings plans, a financial institution as defined in 348.841.

(8) “Individual development account (IDA)” or “account” means a contract between an account holder and a fiduciary organization for the deposit of funds into a financial institution by the account holder, and the deposit of matching funds into a financial institution by the fiduciary organization, to allow the account holder to accumulate assets for use toward achieving a specific purpose approved by the fiduciary organization.

(9) “Lower income household” means a household having an income equal to or less than the greater of the following:

(a) 80 percent of the median household income for the area as determined by the Department., In making the determination, the Department shall give consideration to any data on area household income published by the United States Department of Housing and Urban Development.

(b) 200 percent of the poverty guidelines as determined by the Department. In making the determination, the Department shall give consideration to poverty guidelines published by the United States Department of Health and Human Services or may consider other income data periodically published by other federal or Oregon agencies.

(10) “Median Household Income” means, for the appropriate household size, the higher of:

(a) The median family income for the Metropolitan Statistical Area or county as published annually by the United States Department of Housing and Urban Development, or

(b) The statewide median family income for Oregon as published annually by the United States Department of Housing and Urban Development.

(11) “Net worth” means the value of all assets owned in whole or part by household members excluding equity in a residence and one vehicle, and excluding holdings in pension accounts, as defined by the Housing and Community Services Department by rule, that are valued at less than $60,000, minus the total debts and obligations of household members, all as measured at the time the prospective account holder applies to establish the IDA.

(12) “Oregon individual development account tax credit” or “tax credit” means a credit against taxes otherwise due under ORS Chapter 316, 317, or 318, as allowed in return for contributions to a fiduciary organization for eventual distribution to individual development accounts established under ORS 458.685.

(13) “Pension Account” means an account that is funded by an employee and/or the employer specifically to provide a retirement income, and in which the account is structured so that the funds in the account are either inaccessible to the employee until he/she terminates employment or reaches retirement or are accessible with an early withdrawal penalty.(14) “Personal development plan” means a written plan developed jointly by the fiduciary organization and the prospective account holder for an IDA that is designed to provide the account holder with appropriate financial and asset training, counseling, career or business planning and other services that will increase the self-reliance of the account holder and his/her household through achievement of the IDA’s approved purposes. The personal development plan must be in conformance with ORS 458.680, these rules and other requirements of the Department.

(15) “Related funds” means contributions to fiduciary organizations for IDA program purposes that do not qualify for tax credits and supplemental funding from the Department for IDA program purposes.

(16) “Resident of this state” has the meaning given in ORS 316.027

(17) “Reverted funds” means matching IDA deposits that devolve to a fiduciary organization because of the termination or revocation of a person as an account holder or unused tax credit contributions or supplemental funds upon termination or revocation of a fiduciary organization or at the expiration of its program plan.

(18) “Supplemental funding” means funds provided by the Department to fiduciary organizations for program plan purposes.

(19) “Tax credit contributor” means a contributor who receives a corresponding tax credit as allowed in ORS 315.271.

(20) “Tax credit contributions” means funds obtained from tax credit contributors who, in return, earn a tax credit.

(21) “Trust Land” means all lands held in trust by the United States on behalf of an Indian Tribe or individual Indian.

Stat. Auth.: ORS 456.555, 456.625 & 458.700

Stats. Implemented: ORS 315.271 & 458.670 - 458.700

Hist.: OHCS 12-2002(Temp), f. & cert. ef. 10-8-02 thru 4-5-03; OHCS 1-2003, f. & cert. ef. 4-4-03; OHCS 9-2003, f. & cert. ef. 12-19-03; OHCS 13-2007(Temp), f. & cert. ef. 10-2-07 thru 3-30-08; OHCS 2-2008, f. & cert. ef. 3-18-08; OHCS 3-2010, f. & cert. ef. 1-7-10; OHCS 25-2013(Temp), f. & cert. ef. 12-18-13 thru 6-16-14

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2013.

2.) Copyright Oregon Secretary of State: Terms and Conditions of Use

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