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HOUSING AND COMMUNITY SERVICES DEPARTMENT

 

DIVISION 130

HELP PROGRAM

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

813-130-0040

Eligible Costs 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

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