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HOUSING AND COMMUNITY SERVICES DEPARTMENT

 

DIVISION 55

GENERAL HOUSING ACCOUNT

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

813-055-0030 [Renumbered to 813-055-0075]

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

13-055-0065

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

813-055-0070 [Renumbered to 813-055-0085]

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

813-055-0080 [Renumbered to 813-055-0105]

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

813-055-0090 [Renumbered to 813-055-0115]

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

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