§ 3560.102 Housing project management. ( a ) *General.* Borrowers hold final responsibility for housing project management and must ensure that operations comply with the terms of all loan or grant documents, Agency requirements and applicable local, state and Federal laws and ordinances. Project operations shall be conducted to meet the actual needs and necessary expenses of the property or for any other purpose authorized under Agency regulations. Any party not meeting these responsibilities may be subject to penalties. It is expected that only typical and reasonable expenses be incurred for the services rendered. Consequently, methods to inflate, duplicate, obscure, or failure to disclose the true nature and cost of work performed for the services rendered will cause the Agency to deny budget requests for the services or issue a demand for recovery and reimbursement for unauthorized actions.
( b ) *Management plan.* Borrowers must develop and maintain a management plan for each housing project covered by their loan or grant. The management plan must establish the systems and procedures necessary to ensure that housing project operations comply with Agency requirements in this part. The management plan should describe whether administrative expenses are to be paid from management agent fees or project operations, including a task list of charges covered by the fee as outlined in paragraph (i)(3)(i)(A) of this section. The management plan must meet the standards set out in this part.
( c ) *Management plan effective period.* A management plan remains in effect as long as it accurately reflects housing project operations and the housing project is in compliance with the Agency requirements. ( 1 ) Borrowers must submit an updated management plan to the Agency if operations change or are no longer consistent with the management plan on file with the Agency.
( 2 ) When there are no changes in operations, borrowers must submit a certification to the Agency every 3 years stating that operations are consistent with the management plan and the plan is adequate to assure compliance with the loan and grant documents and Agency requirements or applicable local, state and Federal laws.
( 3 ) If the Agency determines that operations are in compliance with Agency requirements, loan or grant agreements, or applicable local, state, and Federal laws, but are not consistent with the management plan, the Agency will require the borrower to: ( i ) Revise the management plan to accurately reflect housing operations;
( ii ) Take actions to ensure the management plan is followed; or
( iii ) Advise the Agency in writing of the action taken.
( 4 ) When a housing project is being transferred from one borrower to another, the transferee must submit a management plan that addresses the required items identified in paragraph (b)(1) of this section in sufficient detail to enable the Agency to give final approval of the transfer.
( d ) *Housing projects with compliance violations.* Upon receiving notice of compliance violations in accordance with § 3560.354, borrowers must submit to the Agency: ( 1 ) Revisions to the management plan establishing the changes in housing operations that will be made to restore compliance;
( 2 ) If the borrower determines the compliance violations were due to a failure to follow the management plan, the borrower must certify to the Agency that the management plan is adequate to assure compliance with the applicable requirements of this part and submit a written description of the actions they will take to ensure the management plan is followed; or
( 3 ) If the Agency discovers continued discrepancies between a management plan and housing project operations or compliance violations, the Agency may require the borrower to install a different management agent acceptable to the Agency as described in paragraph (e) of this section.
( e ) *Acceptable management agents.* Borrowers must obtain Agency approval of the agent proposed to manage a housing project prior to entering into any formal agreement with the agent and prior to allowing the agent to assume responsibility for housing project operations. Borrowers that plan to self-manage a housing project also must receive Agency approval before assuming responsibility for housing operations. ( 1 ) Borrowers must submit a written request for Agency approval of the proposed management agent at least 45 days prior to the date the agent is to assume responsibility for operations. This request must include a profile of the proposed management agent that provides sufficient information to allow the Agency to evaluate whether the agent is acceptable.
( 2 ) The Agency will deny approval of any proposed management agent that cannot provide evidence of at least two years of experience and satisfactory performance in directing and overseeing the management of similar federally-assisted MFH.
( 3 ) The Agency may issue approval of a management agent that does not meet the requirements of § 3560.102(e)(2) if the management agent can provide evidence that indicates the ability to successfully manage a MFH project in accordance with Agency requirements.
( 4 ) If a borrower enters into an agreement with a management agent or begins to self-manage prior to receiving Agency approval, the Agency will place the borrower in non-monetary default status and will require the borrower to immediately terminate the contract with the management agent.
( f ) *Self-management.* Borrowers may self-manage a housing project but must receive Agency approval before assuming responsibility for housing operations. Borrowers that plan to self-manage must meet all requirements of § 3560.102, except for paragraph (h) of this section.
( g ) *Identity-of-interest disclosure.* Borrowers and management agents must disclose to the Agency all identity-of-interest relationships which they have with firms and must receive Agency approval to use such firms prior to entering into any contractual relationships with such entities that involve Agency funds. ( 1 ) This disclosure must include any identity-of-interest relationships between: ( i ) The borrower and the management agent;
( ii ) The borrower or management agent and the providers of supplies and services to the housing project;
( iii ) The borrower or the management agent and employees of anyone listed in paragraphs (g)(1)(i) and (ii) of this section;
( iv ) Any borrower's entity control, or interest held or possessed by a person's spouse, parent, child, grandchild, or sibling or other relation by blood or marriage is attributed to that person for the determination under this paragraph (g)(1).
( 2 ) Failure to disclose such relationships may subject the borrower, the management agent, and the other firms or employees found to have an identity of interest relationship to suspension, debarment, or other remedies available to the Agency.
( 3 ) After disclosure of an identity-of-interest relationship: ( i ) The borrower, management agent, and supplier of goods and services must provide documentation proving that use of identity-of-interest firms is in the best interest of the housing project;
( ii ) Any supplier of goods and services must certify in writing to the Agency that the individual or organization has a viable, on-going trade or business qualified and licensed, if appropriate, to do the work for which a contract is being proposed;
( iii ) The borrower, management agent, and supplier of goods and services must agree, in writing, that all records related to the housing project will be made available to the Agency, Office of the Inspector General (OIG), General Accountability Office (GAO), or a representative of the Agency, upon request; and
( iv ) The Agency will deny the use of an identity-of-interest firm when the Agency determines such use is not in the best interest of the Federal Government or the tenants.
( h ) *Management agreement.* Borrowers contracting with a management agent must execute a management agreement that establishes: ( 1 ) The management agent's responsibility to comply with Agency requirements and local, state, and Federal laws;
( 2 ) That the management fee is payable out of the housing project's general operating account consistent with the requirements of paragraph (i) of this section; and
( 3 ) The Agency's authority to terminate the agreement for failure to operate the housing project in accordance with Agency requirements or local, state, or Federal laws.
( i ) *Management fees.* Management fees will be an allowable expense to be paid from the housing project's general operating account only if the fee is approved by the Agency as a reasonable cost to the housing project and documented on the management certification. Management fees must be developed in accordance with the following: ( 1 ) The management fee may compensate the management entity for the following costs and services: ( i ) Supervision by the management agent and its staff (time, knowledge, and expertise) of overall operations and capital improvements of the site.
( ii ) Hiring, supervision, and termination of on-site staff.
( iii ) General maintenance of project books and records (general ledger, accounts payable and receivable, payroll, etc.). Preparation and distribution of payroll for all on-site employees, including the costs of preparing and submitting all appropriate tax reports and deposits, unemployment and workers' compensation reports, and other IRS- or state-required reports.
( iv ) In-house training provided to on-site staff by the management company.
( v ) Preparation and submission of proposed annual budgets and negotiation of approval with the Agency.
( vi ) Preparation and distribution of the Agency forms and routine financial reports to borrowers.
( vii ) Preparation and distribution of required year-end reports to the Agency.
( viii ) Preparation of requests for reserve withdrawals, rent increases, or other required adjustments.
( ix ) Arranging for preparation by outside contractors of utility allowance analysis.
( x ) Preparation and implementation of Affirmative Fair Housing Marketing Plans as well as general marketing plans and efforts.
( xi ) Review of tenant certifications and submission of monthly rental assistance requests, and overage. Submission of payments where required.
( xii ) Preparation, approval, and distribution of operating disbursements; oversight of project receipts; and reconciliation of deposits.
( xiii ) Overhead of management agent, including: ( A ) Establish, maintain, and control an accounting system sufficient to carry out accounting supervision responsibilities.
( B ) Maintain agent office arrangements, staff, equipment, furniture, and services necessary to communicate effectively with the properties, to include consultation and support to site-staff, the Agency and with the borrowers.
( C ) Postage expenses unrelated to site operation.
( D ) Expense of telephone and facsimile communication, unrelated to site operations.
( E ) Direct costs of insurance (fidelity bonds covering central office staff, computer and data coverage, general liability, etc.) directly related to protection of the funds and records of the borrower. Insurance coverage for agent's office and operations (Property, Auto, Liability, Errors and Omissions, Casualty, Workers Compensation, etc.).
( F ) Central office staff training and ongoing certifications.
( G ) Maintenance of all required profession and business licenses and permits. (This does not include project site office permits or licenses.)
( H ) Travel of agent staff to the properties for on-site inspection, training, or supervision activities.
( I ) Agent bookkeeping for their own business.
( xiv ) Attendance at meetings (including travel) with tenants, owners, and the Agency or other governmental agency.
( xv ) Development, preparation, and revision of management plans, agreements, and management certifications.
( xvi ) Directing the investment of project funds into required accounts.
( xvii ) Maintenance of bank accounts and monthly reconciliations.
( xviii ) Preparation, request for, and disbursement of borrower's initial operating capital (for new projects) as well as administration of annual owner's return on investment.
( xix ) Account maintenance, settlement, and disbursement of security deposits.
( xx ) Working with auditors for initial Agency annual financial reports.
( xxi ) Storage of records, to include electronic records, and adherence to records retention requirements.
( xxii ) Assist on-site staff with tenant relations and problems. Provide assistance to on-site staff in severe actions (eviction, death, insurance loss, etc.).
( xxiii ) Oversight of general and preventive maintenance procedures and policies.
( xxiv ) Development and oversight of asset replacement plans.
( xxv ) Oversight of preparation of section 504 reviews, development of plans, and implementation of improvements necessary to comply with plans and section 504 requirements.
( 2 ) Management fees may consist of a base per occupied revenue producing unit fee and add-on fees for specific housing project characteristics. Management entities may be eligible to receive the full base per occupied unit fee for any month or part of a month during which the unit is occupied. ( i ) Periodically, the Agency will develop a range of base per occupied unit fees that will be paid in each state. The Agency will develop the fees based on a review of housing industry data. The final base for occupied unit fees for each state will be made available to all borrowers.
( ii ) Periodically, the Agency will develop the amount and qualifications to receive add-on fees. The final set of qualifications will be made available to all borrowers.
( 3 ) Management plans and agreements must describe if administrative expenses are to be paid from the management fee or paid for as a project cost. ( i ) A task list should be used to identify which services are included in the management fee, which services are included in project operations, and which are pro-rated along with the methodology used to pro-rating of expenses between management agent fees and project operations. Some property responsibilities are completed at the property and some offsite. Agent responsibilities may be performed at the property, the management office, or at some other location.
( ii ) Disputes may arise as to who performs certain services. The management plan and job descriptions should normally provide sufficient clarity to avoid or resolve any such disputes; however, sometimes clarifications and supporting materials may be required to resolve disputes. The decision must be made based on the most complete evaluation of the facts presented.
( j ) *Management certification.* ( 1 ) As a condition of approval of project management, including borrowers who self-manage, borrower and management agents must execute an Agency-approved certification certifying that: ( i ) Borrowers and management agent agree to operate the housing project in accordance with the management plan;
( ii ) Borrowers and the management agent will comply with Agency requirements, loan or grant agreements, applicable local, State, Tribal, and Federal laws and ordinances, and contract obligations, will certify that no payments have been made to anyone in return for awarding the management contract to the management agent, and will agree that such payments will not be made in the future;
( iii ) Borrowers and the management agent will comply with Agency notices or other policy directives that relate to the management of the housing project;
( iv ) Management agreement between the borrower and management agent complies with the requirements of this section;
( v ) Allowable management fees are assessed and paid out of the housing projects' general operating account. Borrowers and management agents will comply with Agency requirements regarding management fees as specified in paragraph (i) of this section, and allocation of management costs between the management fee and the housing project financial accounts specified in § 3560.302(c)(3);
( vi ) The borrower and the management agent will not purchase goods and services from entities that have an identity-of-interest (IOI) with the borrower or the management agent until the IOI relationship has been disclosed to the Agency according to paragraph (g) of this section, not denied by the Agency under paragraph (d)(3) of this section, and it has been determined that the costs are as low as or lower than arms-length, open-market purchases; and
( vii ) The borrower and the management agent agree that all records related to the housing project are the property of the housing project and that the Agency, OIG, or GAO may inspect the housing records and the records of the borrower, management agent, and suppliers of goods and services having an IOI with the borrower or with a management agent acting as an agent of the borrower upon demand.
( 2 ) A certification will be executed each time new management is proposed and/or a management agreement is executed or renewed. Any amendment to a management certification must be approved by the Agency and the borrower.
( k ) *Procurement.* The borrower and the agents of the borrower must obtain contracts, materials, supplies, utilities, and services at a reasonable cost and seek the most advantageous terms to the housing project. Any discounts, rebates, fees, proceeds, or commissions obtainable with respect to purchases, service contracts, or other transactions must be credited to the housing project.
( l ) *Electronic Submission of Data to Agency.* For properties with eight or more housing units, the Agency may specify that borrowers submit information required by this part electronically.
[69 FR 69106, Nov. 26, 2004, as amended at 87 FR 11280, Mar. 1, 2022]