SUBCHAPTER 19S ‑ HOME REGULATIONS

 

SECTION .0100 ‑ GENERAL PROVISIONS

 

04 NCAC 19S .0101           OVERVIEW AND PURPOSE

(a)  Overview:  Created under the National Affordable Housing Act of 1990, the Home Investment in Affordable Housing (HOME) Program is designed to expand the supply of decent, safe, and sanitary housing (especially rental housing) for low‑income Americans by strengthening the ability of states and local governments to design and implement affordable housing strategies.

(b)  Purpose:  The HOME program provides funds to States and local governments for acquisition, rehabilitation, new construction of affordable housing and tenant based rental assistance.  The program is designed to effect a partnership between the unit of local government and the developer of the affordable housing.  A special set‑aside of the HOME funds is required to be available to qualifying non‑profit community housing development organizations.  Funds are targeted to low and very low income persons and assisted units must remain affordable in accordance with specific regulatory requirements.

 

History Note:        Authority G.S.  143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 30, 1992.

04 NCAC 19S .0102           DEFINITIONS

The definitions in 24 CFR 92.2 are hereby incorporated by reference except as specifically provided for and written in this Rule:

(1)           "Act" means National Affordable Housing Act.

(2)           "Applicant" means an agency that has or will submit an application to the Department requesting HOME program funds.

(3)           "Department" means the Department of Economic and Community Development.

(4)           "Home Regulations" means the HOME Investment in Affordable Housing Program Regulations found at 24 CFR Part 92., as amended.

(5)           "New construction" means housing units as defined in 24 CFR 92.208‑210.

(6)           "Recipient" means an agency that has been awarded an authorization of HOME funds by the State.

(7)           "Secretary" means the Secretary of the Department of Economic and Community Development.

(8)           "State" means the State of North Carolina.

(9)           "State recipient" means a unit of general local government designated by the State to receive HOME funds.

(10)         "Non‑profit housing organizations" means private, non‑profit housing organization that is tax‑exempt under section 501(c) of the Internal. Revenue Code.

(11)         "Affordable" means meeting the qualifications specified in 24 CFR 92 Subpart F for affordable housing.

 

History Note:        Filed as a Temporary Adoption Eff. July 17, 1992 for a period of 180 days or until the

permanent rule becomes effective, which ever is sooner;

Authority G.S.  143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 30, 1992.

 

04 NCAC 19S .0103           WAIVER

The Secretary may waive any requirements of this Subchapter not required by the National Affordable Housing Act of 1990 whenever it is determined that undue hardship to recipients or beneficiaries will result from applying the requirement.  Each waiver must be in writing and must be supported by documentation of the pertinent facts.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 30, 1992.

 

04 NCAC 19S .0104           ELIGIBLE APPLICANTS

Eligible applicants are all units of general local government, and community housing development organizations as defined under section 92.2 of the HOME regulations.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .0105           AMENDMENTS ADOPTED BY REFERENCE

All referenced federal and state laws, statutes, and rules in this Subchapter are hereby adopted by reference to include any later amendments.  These are:

(1)           National Affordable Housing Act of 1990

(2)           24 CFR Part 92

(3)           HOME Investment in Affordable Housing Program Regulations

(4)           National Environmental Policy Act of 1969 (NEPA)

(5)           24 CFR Part 58

(6)           Community Development Act of 1974

(7)           North Carolina Environmental Policy Act (SEPA)

(8)           G.S. 113A‑1

(9)           Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA)

(10)         P.L. 91‑646

(11)         24 CFR Part 24

(12)         Davis Bacon Act (40 U.S.C. 276a‑276a‑5)

(13)         Contract Work Hours at Safety Standards Act (42 CFR 327‑333)

(14)         Lead‑Based Paint Poisoning Prevention Act (42 U.S.C. 482)

(15)         24 CFR Part 85

(16)         OMB Circular A‑110

(17)         OMB Circular A‑87

(18)         OMB Circular A‑122

(19)         24 CFR Part 44

(20)         OMB Circular A‑133

(21)         G.S. 159‑34

(22)         44 CFR Part 60

(23)         OMB Circular A‑128

Copies of these documents can be obtained from the Division of Community Assistance, 1307 Glenwood Avenue, Raleigh, NC  27605, at a cost of ten cents ($.10) per page.

 

History Note:        Filed as a Temporary Adoption Eff. July 17, 1992 for a period of 180 days or until the

permanent rule becomes effective, which ever is sooner;

Authority G.S.  143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .0106           ACTS AND REGULATIONS ADOPTED BY REFERENCE

In addition to the provisions of this Subchapter all applicants and recipients of HOME funds must comply with all applicable provisions of the current Federal HOME Investment Partnerships Program Regulations as published in the Federal Register at 24 CFR Part 92., as amended and Title II of the Cranston‑Gonzalez National Affordable Housing Act of 1990, as amended.  Copies of these sections of federal law and regulation are available for public inspection from the Department.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

SECTION .0200 ‑ ELIGIBLE AND PROHIBITED ACTIVITIES

 

04 NCAC 19S .0201           ELIGIBLE ACTIVITIES AND COSTS

This Subchapter adopts by reference as eligible activities and costs those activities and costs described in the National Affordable Housing Act as amended under Section 212(a) and (b), and in 24 CFR 92.205‑206 incorporated in Rule .0106 of this Subchapter.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .0202           PROHIBITED COSTS

All activities not defined as eligible in Rule .0201 shall be considered ineligible for assistance under this Subchapter.  Specific ineligible uses are listed in the National Affordable Housing Act as amended under Section 212(c), and in 24 CFR 92.214.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 30, 1992.

 

SECTION .0300 - THRESHOLD FOR DIRECT HUD PARTICIPATION

 

04 NCAC 19S .0301           PARTICIPATION THRESHOLD AMOUNT

During the initial HOME program year, if a unit of general local government has a formula allocation under 24 CFR 92.50 that is equal to or greater than five hundred thousand dollars ($500,000) and less than seven hundred and fifty thousand dollars ($750,000) then the State will authorize HUD to transfer an amount of State HOME funds such that the sum of the amounts transferred or made available are equal to or greater than the difference between the unit of general local government's formula allocation and seven hundred and fifty thousand dollars ($750,000).  The State may require that the unit of general local government financially participate in providing the amount of funds necessary to ensure that the unit becomes a HUD participating jurisdiction.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

SECTION .0400 ‑ HOME PROGRAM FUNDING DISTRIBUTION

 

04 NCAC 19S .0401           DISTRIBUTION OF FUNDS

(a)  The Department shall designate specific dates for submission of HOME program applications under each category.  Grant application submission dates will be announced by the Division at least 30 days before the date applications are due.

(b)  In cases where the Department makes a procedural error in the application selection process that, when corrected, would result in awarding a score sufficient to warrant a HOME aware, the Department may compensate that applicant with an award of funds in the next funding cycle.

(c)  Applicants can apply for funding under the program categories of Housing Projects Category, HOME Consortia Category or, the Community Housing Development Organization Category.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 30, 1992.

 

04 NCAC 19S .0402           SIZE AND USE OF HOME AWARDS MADE TO RECIPIENTS

(a)  There is no minimum amount which applicants may request or be awarded.  Awards made to any one recipient shall not exceed the following amount in each category:

(1)           Housing Project Category Unlimited;

(2)           Consortia Category ‑ One Million Dollars ($1,000,000);

(3)           Community Housing Development Organization Category Unlimited.

(b)  Awards to specific recipients will be provided in amounts commensurate with the size of the applicant's program.  In determining appropriate amounts, the Department may consider an applicant's need, proposed activities, and ability to carry out the proposed activities.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .0403           PROGRAM CATEGORY ALLOCATION

(a)  HOME funds received by the State each year and available for award after reservations of funds under this Subchapter have been allocated, will be reserved for each program category as follows: at least fifteen percent of the funds will be reserved for awards under the Community Housing Development Organization program.  Up to fifty percent of the funds will be available for the Consortia Category.  The remaining funds will be distributed to applicants that have applied for funds under the Housing Projects Category.

(b)  If applicants fail to request the full amount of the set‑aside in any category or if the Department  is unable (for any reason including lack of applicant administrative capacity) to distribute the full amount of the set‑aside then the remaining funds may be distributed to projects of the other categories.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .0404           GENERAL APPLICATION REQUIREMENTS

(a)  Applicants shall submit applications in order to be considered for funding.  Selection of applications for funding will be based primarily on information contained in the application; thus applications must contain sufficient information for the Department to rate them against the selection criteria.  In addition, information from any source may be considered which regards the eligibility of the applicant or application, the legality or feasibility of proposed activities, the applicant's compliance with application procedures specified in this Subchapter, or the accuracy of the information presented in the application.  All applicants shall address their projects to one of the grant categories listed in Rule .0402 of this Section.

(b)  Applications shall demonstrate that projects proposed for assistance with HOME funds will meet the project requirements specified in 24 CFR 92.250‑258.

(c)  Applications must be received by the Departmental administrative offices in Raleigh before 5:00 p.m. on the submission date or sent by mail and postmarked on the submission date.

(d)  The applicant shall certify to the Department that it will comply with all applicable Federal and State laws, Regulations, Rules and Executive Orders.

(e)  Applicants shall comply with program guidelines issued by the Department for the purpose of administering the HOME program.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

SECTION .0500 ‑ COMMUNITY HOUSING DEVELOPMENT ORGANIZATION       CATEGORY

 

 

 

04 NCAC 19S .0501           DEFINITION

The Community Housing Development Organization (CHDO) Program funds are available to eligible private non‑profit organizations that meet both the definition of a nonprofit organization and the definition of a Community Housing Development Organization as both are defined in Section 92.2 of the HOME Regulations (24 CFR Part 92.).

(1)           All eligible activities may be carried out by CHDOs to accomplish the purposes under this Subchapter.

(2)           CHDO program funds will be distributed on a competitive basis and projects will be evaluated against other CHDO project proposals.

(3)           The allocation of funds is made available to this category as established in Rule .0403 of this Subchapter will be available for a period of 18 months (or other time period established by HUD) after the allocation of funds is made to the State from HUD in accordance with federal regulations at 24 CFR Part 92.300(a).

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .0502           ELIGIBILITY REQUIREMENTS

Applications for CHDO program funds must show that:

(1)           CHDO funds will be invested only in housing to be developed, sponsored, or owned by the Community Housing Development Organization.

(2)           The CHDO applicant meets the requirements of Rule .0501 of this Section.

(3)           The CHDO has received written approval from the Department that the organization meets the Community Housing Development Organization (CHDO) definition under 24 CFR Part 92.2.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .0503           SELECTION CRITERIA

Programs and individual projects will be evaluated and rated based upon but not limited to the following:

(1)           Project feasibility,

(2)           Project appropriateness,

(3)           Need for the project funds,

(4)           Capacity to carry out the project,

(5)           Project viability,

(6)           Project affordability,

(7)           Project benefit,

(8)           Market conditions,

(9)           Project technical assistance/education,

(10)         Geographic distribution.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

SECTION .0600 ‑ HOME CONSORTIA CATEGORY

 

04 NCAC 19S .0601           DEFINITION

A consortium of geographically contiguous units of general local government, non‑profit housing development organizations or state agencies may submit an application to the Department requesting HOME funds to carry out activities consistent with the purpose of this Subchapter and the HOME Program Regulations at 24 CFR Part 92.

(1)           Consortia applicants must submit to the Department on the prescribed forms a HOME Program Consortia funding request.  Applications for Consortia funding will be requested and received on an annual basis.

(2)           Eligible activities are those activities that are otherwise eligible under this Subchapter and at 24 CFR Part 92.205.

(3)           Applicants must provide to the Department evidence that all parties to the consortium have executed a cooperation agreement among its members authorizing one member unit of general local government to act in a representative capacity for all members for purposes of this Subchapter and providing that the representative member assumes overall responsibility for ensuring that the consortiums HOME program is carried out in compliance with all applicable state and federal regulations including requirements concerning a Comprehensive Housing Affordability Strategy.

(a)           The agreement must not contain a provision for veto or other restriction that would allow any party to the agreement to obstruct the implementation of the approved Comprehensive Housing Affordability Strategy.

(b)           The agreement must be accompanied by authorizing resolutions from the governing body of each member or other acceptable evidence that the chief executive officer is authorized to sign the agreement.  The agreement must be signed by the chief executive officer of each member.

(c)           The agreement must contain, or be accompanied by, a statement from the lead entity's counsel that the terms and provisions of the agreement are fully authorized under State and local law and that the agreement provides full legal authority for the consortium to undertake or assist in undertaking housing activities for the HOME program.

(d)           The term of the agreement must cover the period necessary to carry out all activities that will be funded by HOME funds and that the entities which join the consortium are required to remain in the consortium for the entire period.  The agreement cannot contain a provision for termination or withdrawal by any party to the agreement.

(e)           If any new entities join the consortium, the consortium must notify the Department within 30 days.

(f)            If the consortium includes a CDBG Entitlement City as the lead entity, the consortium will be considered to have sufficient administrative capability to carry out the HOME program.  If this is not the case the consortium must demonstrate relevant experience in successfully administering programs similar to the HOME program to the satisfaction of the Department.

(g)           Consortia members may include agencies and organizations which are not units of general local government; only a unit of general local government is eligible to represent the consortia as required in Subparagraph (3) of this Rule.

(4)           Applicants must have the capacity to administer the HOME program.  The Department may examine the following areas to determine capacity:

(a)           Audit and monitoring findings on previous HOME programs, and the applicant's fiscal accountability as demonstrated in other state or federal programs or local government financial reports; and

(b)           The rate of expenditure of funds and accomplishments in previously funded CDBG programs.  Applicants that show a lack of capacity will not be rated or funded.

(5)           All applicants must submit certifications as prescribed by the Department.

(6)           State recipients must enter into an agreement between the Department and the State recipient which sets forth the full administrative responsibilities that the State recipient will have in carrying out its HOME program.

 

History Note:        Filed as a Temporary Adoption Eff. July 17, 1992 for a period of 180 days or until the permanent rule becomes effective, whichever is sooner;

Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .0602           ELIGIBILITY REQUIREMENT

Applications for funds under this category must show that:

(1)           Applications must address and be in compliance with all program requirements and project requirements.

(2)           The designated lead entity for the Consortium must meet the definition of a State Recipient as defined at 24 CFR Part 92.2.

(3)           The lead entity has the legal authority to carry out all activities proposed in the application for funding.

 

History Note:        Filed as a Temporary Adoption Eff. July 17, 1992 for a period of 180 days or until the

permanent rule becomes effective, which ever is sooner;

Authority G.S.  143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .0603           SELECTION CRITERIA

Programs and individual projects will be evaluated and rated based upon but not limited to the following:

(1)           Project feasibility

(2)           Project appropriateness

(3)           Need for the project funds

(4)           Capacity to carry out the project

(5)           Project viability

(6)           Project affordability

(7)           Project benefit

(8)           Market conditions

(9)           Project Technical Assistance/Education

(10)         Geographic distribution.

 

History Note:        Filed as a Temporary Adoption Eff. July 17, 1992 for a period of 180 days or until the

permanent rule becomes effective, which ever is sooner;

Authority G.S.  143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

SECTION .0700 ‑ HOUSING PROJECT CATEGORY

 

04 NCAC 19S .0701           DEFINITION

The Housing Development Project category is designed to direct HOME funds to assist housing projects being carried out by units of general local government and private non‑profit housing development organizations.  All eligible HOME program activities may be undertaken under this category.

(1)           Applications for funding must be designed to address specific projects that could begin within six months of the project award date and could reasonably be completed within a 24 month period or less from the date of award.

(2)           Housing Development Project funds shall be distributed to eligible applicants on a competitive basis.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .0702           ELIGIBILITY REQUIREMENTS

Applications for funds under this category must show that:

(1)           Applications must address and be in compliance with all program requirements and project requirements under Subchapter E and F of 24 CFR Part 92.

(2)           All applications shall include letters of interest for commitments of funds from sources other than the HOME program and shall include documentation that these funds are currently available for the proposed project.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .0703           SELECTION CRITERIA

Programs and individual projects will be evaluated and rated based upon but not limited to the following:

(1)           Project feasibility,

(2)           Project appropriateness,

(3)           Need for the project funds,

(4)           Capacity to carry out the project,

(5)           Project viability,

(6)           Project affordability,

(7)           Project benefit,

(8)           Market conditions,

(9)           Project technical assistance/education,

(10)         Geographic distribution.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .0704           PRELIMINARY AWARDS

The Department shall announce preliminary grant awards after review and evaluation of HOME project category applications.  A grant agreement shall not be issued by the Department to a recipient until a commitment with the developer has been executed and approved by the Department.  The commitment shall incorporate project specific implementation reflecting key project elements.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

                                             SECTION .0800 - RESERVED FOR FUTURE CODIFICATION

 

                                             SECTION .0900 - RESERVED FOR FUTURE CODIFICATION

 

SECTION .1000 ‑ COMPLIANCE REQUIREMENTS

 

04 NCAC 19S .1001           EQUAL OPPORTUNITY AND FAIR HOUSING

No person shall on the grounds of race, color, national origin, religion or sex be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any program or activity funded in whole or in part with funds available under this Subchapter.  Recipients shall meet the requirements specified in 24 CFR 92.350, incorporated in Rule .0106 of this Subchapter.  These requirements also prohibit discrimination based on age or handicap; require compliance with the Fair Housing Act which prohibits discrimination in housing on the grounds of race, color, religion, sex, national origin, handicapping condition or familial status; promote opportunities for training and employment for low‑income persons in the jurisdiction or area in which the project is located; promote contracting for work with business concerns located in or owned by persons residing in the same area as the project; encourage use of minority and women's business enterprises including the establishment of an outreach program to such entities; and affirmatively further fair housing.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1002           AFFIRMATIVE MARKETING

Recipients must adopt the affirmative marketing procedures and requirements for HOME‑assisted housing containing five or more housing units, specified in 24 CFR 92.351 as requirements for participating jurisdictions.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1003           ENVIRONMENTAL REVIEW

(a)  Applicants and  recipients shall comply with the policies of the National Environmental Policy Act of 1969 (NEPA) and all other applicable provisions of Federal and State law which further the purposes of such act (as specified in 24 CFR Part 58).

(1)           Applicants and recipients shall assume the responsibilities for environmental review, decision‑making, and other actions which would otherwise apply to the Secretary, under NEPA in accordance with section 104(f)(4) of Title I of the Housing and Community Development Act of 1974, as amended and the implementing regulations at 24 CFR Part 58.

(2)           Applicants and recipients shall submit adequate information prescribed by the Department on the environmental impact of each project so that the Department can determine project compliance with the requirements of the North Carolina Environmental Policy Act of 1971 (SEPA) (G.S. 113A‑1).  A determination by the Department that the project complies with the requirements of SEPA will be made before the Department will release funds to the recipient.

(3)           It is the responsibility of the recipient to obtain all air pollution and water pollution permits for a HOME program pursuant to State laws and rules applicable to the provisions of this Subchapter.

(b)  All records and data shall be maintained pursuant to Rule .1105 of this Subchapter.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1004           DISPLACEMENT, RELOCATION, AND ACQUISITION

(a)  Recipients shall follow the requirements of the Uniform Relocation Assistance and Real Property Acquisition policies Act of 1970 (URA) (P.L. 91‑646) and HUD implementing regulations at 24 CFR Part 24 and 24 CFR Part 92.  The following definitions shall apply:

(1)           "HUD" means the Department.

(2)           "Federal agency" means the Department.

(3)           "State agency" means the recipient of HOME funds as defined in this Subchapter.

(b)  Recipients must ensure that is has taken all reasonable steps to minimize the displacement of persons (families, individuals, businesses, nonprofit organizations, and farms) as a result of a HOME‑assisted project.

(c)  Recipients must follow the policies of 24 CFR Part 92. for temporary relocation.

(d)  Recipients may provide relocation payments and assistance for individuals, families, businesses, nonprofit organizations and farms displaced by an activity that is not subject to the Uniform Act.  Recipients also may provide relocation payments and other assistance at levels above those established under the Uniform Act.  All such relocation assistance not required by the Uniform Act must be determined by the recipient to be appropriate to its HOME program.  The recipient shall adopt a written policy available to the pubic that describes the optional relocation assistance that it has elected to furnish and provides for equal relocation assistance within each class of displaced persons.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1005           LABOR STANDARDS

(a)  Recipients must comply with the Davis‑Bacon Act (40 U.S.C. 276a‑276a‑5) and the Contract Work Hours and Safety Standards Act (42 CFR 327‑333) and with other Federal laws and regulations pertaining to labor standards and HUD Handbook 1344.1 (Federal Labor Standards in Housing and Community Development Programs), as applicable, for any contract for the construction (rehabilitation or new construction) of affordable housing with 12 or more units assisted with HOME funds.

(b)  A volunteer who receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform volunteer services and who is not otherwise employed at any time in the construction work is exempt from the prevailing wage provision of the Davis‑Bacon Act.

(c)  Members of an eligible family who provide "sweat equity" labor in exchange for acquisition of a property for homeownership or provide such labor in lieu of, or as a supplement to, rent payments are exempt from the prevailing wage provisions of the Davis‑Bacon Act.

(d)  All contracts required to comply with Paragraph (a) of this Rule must contain labor standards provisions.

(e)  As required by 24 CFR 24, a recipient must require participants in lower tier covered transactions to include the certification that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation from the covered transaction in any proposal submitted in connection with the lower tier transactions.  A recipient may rely on the certification, unless it knows the certification is erroneous.

(f)  Recipients shall maintain records regarding compliance with the laws and regulations cited in this Rule in accordance with Rule .1109 of this Subchapter.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1006           LEAD‑BASED PAINT

(a)  Recipients must comply with the Lead‑Based Paint Poisoning Prevention Act (42 U.S.C. 4821, et seq.) and 24 CFR Part 35 including provisions of the above:

(1)           prohibiting the use of lead‑based paint;

(2)           requiring elimination of lead‑based paint hazards; and

(3)           requiring notification of the hazards of lead‑based poisoning to purchasers and tenants of housing constructed prior to 1978 which was acquired or rehabilitated with HOME assistance.

(b)  Recipients are responsible for testing and abatement activities.

(c)  All construction contracts as described in this Rule shall contain a provision prohibiting the use of lead‑based paint.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1007           CONFLICT OF INTEREST

(a)  Recipients must comply with the conflict of interest provisions in 24 CFR 85.36 and OMB Circular A‑110 in the procurement of property and services, if applicable.

(b)  Recipients must comply with Section 92.356 of 24 CFR Part 92. in all cases not governed by Paragraph (a) of this Rule.

(c)  No person described in Paragraph (d) of this Rule who exercise or have exercised any functions or responsibilities with respect to activities assisted with HOME funds or who are in a position to participate in a decisionmaking process or gain inside information with regard to these activities, may obtain a financial interest or benefit from a HOME assisted activity; or have an interest in any contract, subcontract, or agreement with respect, thereto, or the proceeds thereunder, either for themselves or those with whom they have a family or business ties, during their tenure or for one year thereafter.

(d)  The conflict of interest provisions of Paragraph (c) of this Rule apply to any person who is an employee, agent, consultant, officer, or elected official or appointed official of the recipient receiving HOME funds.

(e)  Exceptions to the provisions of Paragraph (c) of this Rule will be granted on a case‑by‑case basis by HUD in accordance with 24 CFR 92.356(d) and (e) by submitting a request for determination of the Department.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1008           NATIONAL FLOOD INSURANCE PROGRAM

(a)  No HOME funds shall be used for acquisition, new construction, or rehabilitation purposes as defined under section 3(a) of the Flood Disaster Protection Act of 1973 (P.L. 93‑234) in any area that has been identified as an area having special flood hazards, unless the recipient in such an area is participating in the National Flood Insurance Program or less than a year has passed since FEMA notification regarding such hazards.

(b)  Recipients must comply with the Regulations implementing the Flood Disaster Protection Act of 1973 (44 CFR 60.3), unless the recipient is participating in the National Flood Insurance Program.

(c)  The use of HOME funds governed by this Subchapter for acquisition, new construction, or rehabilitation shall be subject to the mandatory purchase of flood insurance requirements of Section 102(a) of the Flood Disaster Protection Act of 1973 (P.L. 93‑234).

(d)  Records of participation in the National Flood Insurance Program shall be maintained by the recipient pursuant to Rule .1105 of this Subchapter.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1009           CLEARINGHOUSE REVIEW

(a)  Applications for funding under this Subchapter may be submitted by the Department to the appropriate state clearinghouse agencies.  The state agencies shall have 30 days from the receipt of the application to review the application and give comments to the Department and the applicant.

(b)  Comments containing any findings of inconsistency with state or local plans, significant adverse urban impact, noncompliance with environmental laws, failure to provide equal opportunity or other comments that require a response may result in disapproval or conditional approval of the application by the Department.  Applicants must consider all findings and submit to the Department a written statement indicating what action they plan to take as a result of these findings.

(c)  Program amendments which must receive Departmental approval pursuant to Rule .1110 of this Subchapter, may be submitted to clearinghouse review in accordance with Paragraph (a) of this Rule.

(d)  All clearinghouse comments and responses shall be kept in accordance with Rule .1105 of this Subchapter.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

SECTION .1100 ‑ GRANT ADMINISTRATION

 

04 NCAC 19S .1101           GRANT AGREEMENT

(a)  Upon approval of the application by the Department, a written grant agreement will be executed between the recipient and the Department.  These Rules, the approved application, and any subsequent amendments to the approved application shall become a part of the grant agreement.

(b)  The grant agreement in its original form and all modifications thereto shall be maintained by the recipient pursuant to Rule .1105 of this Section.

(c)  The Department may condition the grant agreement until the recipient demonstrates compliance with all applicable laws and regulations.

(d)  Neither HOME nor non‑HOME funds involved in a project may be obligated nor may any conditioned project activities begin until the Department releases in writing any and all applicable conditions on the project.  Recipients may incur certain costs prior to release of conditions with prior Departmental approval for activities that have been approved in writing.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1102           METHOD OF ADMINISTRATION

(a)  Recipients may delegate to statutorily authorized subrecipients the responsibility of undertaking or carrying out any specified HOME projects.  All entities so designated under this Paragraph by recipients to undertake or carry out HOME projects pursuant to this Subchapter shall be considered subrecipients as defined in 24 CFR 92.2.

(b)  This Rule does not apply to recipients in the selection of subrecipients.

(c)  Prior to disbursing funds to any subrecipient or contractor, the recipient must enter into a written agreement with the entity.  The agreement must contain provisions required by 24 CFR 92.504(c), incorporated by reference in Rule .0105 of this Subchapter.

(d)  Recipients and subrecipients which are units of local government must comply with the requirements of OMB Circular A‑87 and 24 CFR 85.6, .12, .20, .22, .26, .35, .36, .44, .51, and .52.  Recipients and subrecipients that are private non‑profit organizations must comply with the requirements of OMB Circular A‑122 and OMB Circular A‑110, Attachment B; F; H, paragraph 2; and O.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1103           AUDIT

(a)  Audits must be conducted in accordance with OMB Circular A‑128 as implemented by 24 CFR Part 44 and OMB Circular A‑133, as applicable.

(1)           The recipient shall provide for an audit of its HOME funds on an annual basis in accordance with the annual independent audit procedures set forth in G.S. 159‑34.

(2)           A recipient receiving less than twenty five thousand dollars ($25,000) during a fiscal year may elect to have the funds audited with funds received in the following fiscal year.

(3)           The Audit of HOME funds may be performed in conjunction with the regular annual independent audit of the recipient and shall contain an examination of all financial aspects of the HOME program as well as a review of the procedures and documentation supporting the recipient's compliance with applicable statutes and regulations.

(4)           HOME funds can not be used to pay for the HOME portion of the audit.

(5)           The recipient shall submit a copy of the Annual Audit Report to the Department, including all information required by federal and state regulations.

(6)           The Department may require separate closeout audits to be prepared by the recipient.

(7)           Work papers and reports shall be maintained for a minimum of three years from the date of the audit report unless the auditor is notified in writing by the Department of the need to extend the retention period.  The audit workpapers shall be made available upon request to the Department and the General Accounting office or its designees.

(8)           If during the course of the audit, the auditor becomes aware of irregularities in the recipient organization the auditor shall promptly notify the Department and recipient management officials about the level of involvement.  Irregularities include such matters as conflict of interest, falsification of records or reports, and misappropriation of funds or other assets.

(b)  All records, data, audit reports and files shall be maintained in accordance with Rule .1105 of this Section.

(c)  The provisions of this Rule do not limit the authority of the Department to make audits of recipients' organizations.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1104           CLOSEOUT

(a)  A recipient may close out HOME funds for an individual Federal fiscal year when the following criteria have been met:

(1)           All funds to be closed out have been drawn down and expended for completed project costs or funds not drawn down and expended are to be deobligated by the Department;

(2)           The matching funds requirements in Section 92.218 have been met unless waived for the fiscal year by the U.S. Congress;

(3)           Project Completion Reports for all projects using funds to be closed out have been submitted and entered into the department's financial system in order for the Department to prepare the Closeout Report;

(4)           The recipient has been reviewed and audited and the Department has determined that all requirements except for affordability, have been met or all monitoring and audit findings have been resolved.

(A)          The recipient's most recent audit report must be received by the Department.  Even though the audit does not cover all funds to be closed out, closeout may proceed provided the recipient agrees in its Closeout Report that unaudited funds will be subject to the recipient's next single audit and that the recipient may be required to repay the Department any disallowed costs based on the results of the audit.

(B)          The on‑site monitoring of the recipient by the Department must include verification of the Department's financial system data reflected in the Closeout Report and reconciliation of any discrepancies existing between the Department's financial system and the recipient's records.

(b)  The Closeout Report contains the final data on funds and must be signed by the recipient and the Department's designated official.  In addition the report must contain:

(1)           A provision regarding unaudited funds, required by Part(a)(4)(i) of this Rule.

(2)           A provision requiring the recipient to continue to meet the requirement applicable to housing projects for the period of affordability specified in 24 CFR Part 92.252 or 92.254;

(3)           A provision requiring recipients to keep records demonstrating that the requirements have been met and to repay HOME funds, as required by 24 CFR 92.503, if the housing fails to remain affordable for the required period.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1105           RECORDKEEPING

(a)  The Secretary of the Department of Economic and Community Development, the Secretary of the Department of Housing and Urban Development, or any of their duly authorized representatives, shall have access to all books, accounts, records, reports, files, and other papers or property of recipients or their subgrantees and contractors pertaining to funds provided under this Subchapter for the purpose of making surveys, audits, examinations, excerpts and transcripts.

(b)  All HOME Program records that are public under G.S. 132 shall be made accessible to interested individuals and groups during normal working hours.

(c)  Financial records, supporting documentation and all other reports and records required under this Subchapter, and all other reports pertinent to the HOME Program shall be retained by the recipient for a period of three years from the date of the closeout of the program, except as follows:

(1)           Records must be retained until completion of the action and resolution of all issues arising from any litigation, claim, negotiation, audit or other action, or until the end of the regular period, whichever is later.

(2)           Records regarding project and other federal requirements applicable to housing assisted with HOME funds must be retained for three years after the required period of affordability specified in 24 CFR 92.252 or 92.254, as applicable.

(3)           Records covering displacements and acquisition must be retained for at least three years after the date by which all persons displaced from the property and all persons whose property is acquired for the project have received the final payment to which they are entitled.

(d)  Recipient must establish and maintain sufficient records to enable the Department to determine whether the recipient has met the requirements of 24 CFR 92.508 and all other applicable laws and regulations.  All accounting records shall be supported by source documentation and shall be in compliance with this Subchapter.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1106           PERFORMANCE REPORTS

(a)  Each recipient must submit management reports on its HOME Program in such format and at such time as the Department may prescribe.

(b)  A recipient must submit an annual performance report on its HOME activities to the Department at such time as the Department may prescribe.  Single copies of the report must be provided to the pubic upon request at no charge.

(c)  The Annual Performance Report must contain such information and be in such form as the Department may prescribe, and must include at least the following:

(1)           An analysis of the recipient's efforts to maximize participation by the private sector;

(2)           An assessment of the effectiveness of the affirmative marketing actions prescribed in Rule .1002 of this Subchapter;

(3)           An assessment of the effectiveness of the recipient's minority outreach program, including an analysis of participation by minorities and women and entities owned by minorities and women in its HOME program and, where appropriate, a statement of additional actions planned to improve performance in the use of minority and women‑owned businesses;

(4)           Data on the total number of households (families and individuals) and business and nonprofit organizations displaced as a result of investments of HOME funds, including the cost of relocation payments and the number and cost of real property acquisitions; and

(5)           Data on the amount of repayments, interest, and other return on investment of HOME funds and the use of the funds, including number assisted and characteristics of tenants and owners.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1107           PERFORMANCE REVIEWS

(a)  A recipient's performance will be reviewed at least annually in accordance with 24 CFR Part 92.550(a).  The Department will rely primarily on information obtained from the recipient, and, as appropriate, the recipient's records and reports, findings from on‑site monitoring, audit reports, and information generated from the recipients's financial system.  The Department may also consider relevant information pertaining to a recipient's performance gained from other sources, including citizen comments, complaint determinations, and litigation.

(b)  A recipient's performance will be comprehensively reviewed periodically, as prescribed by the Department, to determine whether the recipient:

(1)           has committed and expended HOME funds as required by 24 CFR Part 92.500; and

(2)           has met the requirement of 24 CFR Part 92, particularly eligible activities, income targeting, affordability, and matching requirements.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1108           CORRECTIVE AND REMEDIAL ACTIONS

(a)  The Department will use the procedures of 24 CFR Part 92.551 in conducting the performance review as provided in Rule .1107 of this Section and in taking corrective and remedial actions.

(b)  If the Department determines that a recipient has not met a requirement of this Subchapter, the recipient will be given notice of this determination and an opportunity to demonstrate, within 30 days and on the basis of substantial facts and data that it has done so.

(c)  If a recipient fails to demonstrate to the Department's satisfaction that it has met the requirement, The Department will take corrective or remedial action in accordance with this Rule or Rule .1109 of this Section.

(d)  The Department will take corrective or remedial actions designed to prevent a continuation of the deficiency; mitigate, to the extent possible, its adverse effects or consequences; and prevent its recurrence in accordance with 24 CFR 92.551(c).

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1109           ADMINISTRATIVE HEARINGS AND SANCTIONS

(a)  The Department may impose sanctions specified in 24 CFR Part 92.552(a)(1) and (2)(i) on a recipient that fails to comply with any provision of this Subchapter.

(b)  A recipient or the Department may commence contested case hearing procedures pursuant to G.S. 150B and 26 NCAC 3 ‑ Office of Administrative Hearings, Hearings Division.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.

 

04 NCAC 19S .1110           PROGRAM AMENDMENTS

(a)  A recipient may amend its HOME program by submitting a request to the Department for approval in such format as the Department may prescribe.

(b)  Prior approval by the Department is required when:

(1)           The recipient proposes to change the approved budget amount for any activity by more than 10 percent of the total grant amount.

(2)           The recipient proposes to add or delete any activity or activities, change project locations, or change the scope of the program or class of beneficiaries of previously approved activities; and

(3)           The cumulative effect of smaller changes involving approved activities exceeds 10 percent of the total grant amount.

(c)  All records of program amendments shall be kept on file in accordance with Rule .1105 of this Section.

 

History Note:        Authority G.S. 143B‑10; 143B‑431; 24 C.F.R. Part 92;

Eff. November 2, 1992.