10 TAC §§9.1 - 9.5, 9.9 - 9.11
The Texas Department of Housing and Community Affairs (TDHCA)
proposes amendments to §§9.1, 9.2, 9.3, 9.4, 9.5, 9.9, 9.10, and
9.11 concerning the allocation of Community Development Block Grant (CDBG)
non-entitlement area funds under the Texas Community Development Program (TCDP).
The amendments are being proposed to establish the standards and procedures
by which TDHCA will allocate 2001 and 2002 fiscal years' community development,
planning capacity building, and housing rehabilitation funds and fiscal year
2000 colonia, housing infrastructure, disaster relief, disaster recovery initiative,
and TCDP Small Town Environment Program funds. The amendments are being proposed
to make changes to the application and selection criteria for the program
fund categories.
Sandy Mauro, director of the Texas Community Development Program, has determined
that for the period that the sections are in effect there will be no fiscal
implications for state or local government as a result of enforcing or administering
the sections.
Ms. Mauro also has determined that for the period that the sections are
in effect, the public benefit as a result of enforcing the sections will be
the equitable allocation of CDBG non-entitlement area funds and disaster recovery
initiative funds to eligible units of general local government and eligible
Indian tribes in Texas. There will be no effect on small businesses. There
are no anticipated economic costs to persons who are required to comply with
the sections as proposed.
Comments on the proposal may be submitted to Anne Paddock, Deputy General
Counsel, Texas Department of Housing and Community Affairs, 507 Sabine, P.O.
Box 13941, Austin, Texas 78711-3941 or by e-mail at the following address
apaddock@tdhca.state.tx.us.
The amendments are proposed under Texas Government Code, Chapter
2306, §2306.098, which provides TDHCA with the authority to allocate
Community Development Block Grant non-entitlement area funds to eligible counties
and municipalities according to department rules.
No other code, article, or statute is affected by the proposed amendments
to §§9.1, 9.2, 9.3, 9.4, 9.5, 9.9, 9.10, and 9.11.
§9.1.General Provisions.
(a)
(No change.)
(b)
Overview--Community Development Block Grant nonentitlement
area funds are distributed by the Texas Community Development Program to eligible
units of general local government in the following program areas:
(1)
community development fund;
(2)
Texas Capital fund. The Texas Capital Fund is administered
by the Texas Department of Economic Development under an interagency agreement
with the Department. Applications for the Texas Capital Fund shall be submitted
to the Texas Department of Economic Development.
(3)
planning/capacity building fund;
(4)
disaster relief fund;
(5)
urgent need fund;
(6)
colonia fund;
(7)
Young v.
Cuomo
[
Cisneros
] fund;
(8)
housing fund;
(9)
small towns environment program fund.
(c)-(d)
(No change.)
(e)
Ineligible activities. Any type of activity not described
or referred to in the Federal Housing and Community Development Act of 1974,
Section 5305(a) (42 United States Code Section 5301 et seq.) is ineligible
for funding under the Texas Community Development Program.
(1)
Specific ineligible activities include, but
are not limited to: construction of buildings and facilities used for the
general conduct of government (e.g., city halls and courthouses); new housing
construction, except as described as eligible under the current Texas Community
Development Program application guides; the financing of political activities;
purchases of construction equipment (except in limited circumstances under
the small towns environment program); income payments, such as housing allowances;
most operation and maintenance expenses; pre-contract costs, except for costs
incurred prior to submittal of an application and paid with local government
or other funds for administrative consultant and engineering/architectural
services and pre-agreement costs described in a Texas Community Development
Program contract; prisons/detention centers; government supported facilities;
and racetracks.
(2)
The following activities and/or uses are
specifically ineligible under the Texas Capital Fund: monies may not be used
for speculation, investment or excess improvements over the minimum improvements
needed for the business. TCF funds may not be utilized for refinancing or
to repay the applicant, a local related economic development entity, the benefitting
business or its owners and related parties for expenditures. Educational institutions,
including but not limited to colleges and/or universities, and governmental
entities may not qualify as the benefitting business. Ineligible infrastructure
activities/ improvements include, but are not limited to: landfills, incinerators,
recycling facilities, machinery and equipment. Real estate improvements designed
and/or built for a single, special or limited use or purpose are an ineligible
use of funds. Real estate improvements do not include machinery and equipment
used in the production and/or services marketed by the business.
(f)
(No change.)
(g)
Appeals. An applicant for funding under the Texas Community
Development Program may appeal the disposition of its application in accordance
with this subsection.
(1)
The appeal may only be based on one or more of the following
grounds.
(A)
Misplacement of an application. All or a portion of an
application is lost, misfiled, or otherwise misplaced by Department staff
and, in the case of Texas Capital Fund applications, by Texas Department of
Economic Development staff, resulting in unequal consideration of the applicant's
proposal.
(B)
Mathematical error. In rating the application, the score
on any selection criteria is incorrectly computed by the Department and, in
the case of Texas Capital Fund applications, by the Texas Department of Economic
Development due to human or computer error.
(C)
Other procedural error. The application is not processed
by the Department and, in the case of Texas Capital Fund applications, by
the Texas Department of Economic Development, in accordance with the application
and selection procedures set forth in this subchapter. Procedural errors alleged
to have been committed by a regional review committee may only be appealed
in accordance with the provisions of Section 9.8 of this title (relating to
Regional Review Committees).
(2)
The appeal must be submitted in writing to the Texas Community
Development Program of the Department no later than 30 days after the date
the announcement of community development fund and planning/capacity building
fund contract awards is published in the Texas Register. In addition, timely
appeals not submitted in writing at least five working days prior to the next
regularly scheduled meeting of the state review committee will be heard at
the subsequent meeting of the state review committee. The Department staff
will evaluate the appeal and may either concur with the appeal and make an
appropriate adjustment to the applicant's scores, or disagree with the appeal
and prepare an appeal file for consideration by the state review committee
at its next regularly scheduled meeting. The state review committee will make
a final recommendation to the executive director of the Department. The decision
of the executive director of the Department is final. If the appeal concerns
a Texas Capital Fund application, the appeal must be submitted in writing
to the Texas Department of Economic Development no later than 30 days following
the date of the notification letter of the denial. If the appeal concerns
a small towns environment program fund, disaster relief fund, or urgent need
fund application, the appeal must be submitted in writing to the Department
no later than 30 days following the date of the notification letter of the
denial. If the appeal concerns a housing fund, colonia fund or
Young v.
Cuomo
[
type-name="italic">Cisneros
] fund application, the appeal must
be submitted in writing to the Department no later than 30 days after the
date the announcement of contract awards is published in the Texas Register.
The staff of either the Department or the Texas Department of Economic Development,
when appropriate, evaluates the appeal and may either concur with the appeal
or disagree with the appeal and prepare an appeal file for consideration by
the appropriate executive director. The executive director, of the agency
with which the appeal was filed, then considers the appeal within 30 days
and makes the final decision.
(3)
In the event the appeal is sustained and the corrected
scores would have resulted in project funding, the application is approved
and funded. If the appeal concerning a community development fund or planning/capacity
building fund application is rejected, the department notifies the applicant
of its decision, including the basis for rejection after the meeting of the
state review committee at which the appeal was considered. If the appeal concerns
a
Young v.
Cuomo
[
Cisneros
] fund, Texas Capital Fund, housing
fund, colonia fund, disaster relief fund, small towns environment program
fund, or urgent need fund application, the applicant will be notified of the
decision made by the appropriate executive director within 10 days after the
final determination by the executive director.
(4)
Appeals not submitted in accordance with this subsection
are dismissed and may not be refiled.
(h)-(i)
(No change.)
(j)
False information. If an applicant provides false information
in its community development fund or planning/capacity building fund application
which has the effect of increasing the applicant's competitive advantage,
the number of beneficiaries, or the percentage of low to moderate income beneficiaries,
the Department refers the matter to the state review committee for disciplinary
action. If the applicant provides false information in a
Young v.
Cuomo
[
type-name="italic">Cisneros
] fund, colonia fund, disaster relief
fund, housing fund, small towns environment program fund, or urgent need fund
application, the Department staff shall make a recommendation for action to
the executive director of the Department. If the applicant provides false
information in a Texas Capital Fund application, Texas Department of Economic
Development staff shall make a recommendation for action to the appropriate
executive director. The state review committee makes a recommendation for
action to the executive director of the Department at its next regularly scheduled
meeting. Documentation of false information must be submitted at least ten
business days prior to the next regularly scheduled meeting of the state review
committee to be considered at that meeting. Recommendations that the state
review committee or executive director may make include, but are not limited
to:
(1)
Disqualification of the application and holding the locality
ineligible to apply for Texas Community Development Program funding for a
period of at least one year not to exceed two program years;
(2)
holding the applicant or contractor ineligible to apply
for Texas Community Development Program funds for a period of two program
years or until any issue of restitution is resolved, whichever is longer;
and
(3)
terminating the local government's contract if the correct
information would have changed the scores and resulted in a change in the
rankings for purposes of funding.
(k)
Substitution of standardized data. Any applicant that chooses
to substitute locally generated data for standardized information available
to all applicants must use the survey instrument provided by the Department
and must follow the procedures prescribed in the instructions to the survey
instrument. This option does not apply to applications submitted to the Texas
Capital Fund.
(1)
Only door-to-door surveys are allowed, unless an alternate
method is approved in writing by the Department.
(2)
Surveys, including signed tabulation sheets, signed surveys
location sheets, all responses, and all non-responses must be submitted to
the Department by the application deadline, for verification and spot checking.
(3)
A survey instrument that lacks information prescribed in
the instructions to the survey instrument or which includes conflicting information
may be considered as a non-response for that family.
(4)
The applicant must demonstrate a 100% effort in contacting
households to be surveyed and obtain at least an 80% response rate for surveys
which include 150 or fewer beneficiary households or obtain at least a 70%
response rate for surveys which include 151 or more beneficiary households.
(5)
A survey that was completed
on
[
after January
1, 1989,
] or after January 1, 1990, for a previous Texas Community Development
Program application may be accepted by the Department for a new application
to the extent specified in the most recent application guide for the proposed
project.
(l)
Unobligated and recaptured funds. Deobligated funds, unobligated
funds and program income
(except program income recovered from local
revolving loan funds)
generated by Texas Capital Fund projects shall
be retained for expenditure within the Texas Capital Fund subject to approval
of the
Board of Directors
[
executive director
]of the
Texas Department of Economic Development. Any deobligated funds, unobligated
funds, program income, and unused funds from previous years' allocations derived
from any Texas Community Development Program Fund other than the Texas Capital
Fund
, program income recovered from Texas Capital Fund local revolving
loan funds,
and any reallocated funds which HUD has recaptured from
Small Cities may be redistributed among the established fund categories, except
the Texas Capital Fund, for otherwise eligible projects. The selection of
eligible projects to receive such funds will be approved by the executive
director of the Department on a priority basis with eligible disaster relief
and urgent need projects as the highest priority; and the Department's special
targeted activities (e.g., colonias, special housing projects, Texas Small
Town Environment Program (STEP), etc.) as the next highest priority.
(m)
(No change.)
(n)
Performance threshold requirements. In addition to the
requirements of subsection (h) of this section, an applicant must satisfy
the following performance requirements in order to be eligible to apply for
program funds. A contract is considered executed for the purposes of this
subsection on the date stated in Section 2 of such contract.
(1)
Obligate at least 50% of the total funds awarded under
a contract with a twenty-four month contract period (except for
Texas
Capital Fund contracts, housing fund contracts, colonia self-help center contracts,
colonia economically distressed area program contracts,
Young v. Cuomo
contracts, and small towns environment program
fund contracts)
[
Texas Capital Fund contracts, housing fund contracts,
colonia self-help center contracts, and small towns environment program fund
contracts)
] executed at least 12 months prior to the current program
year application deadline. This paragraph does not apply to disaster relief
fund applicants.
(2)
Obligate at least 50% of the total funds awarded under
a contract with a thirty-six month contract period (except for
Texas
Capital Fund contracts, housing fund contracts, colonia self-help center contracts,
colonia economically distressed area program contracts,
Young v. Cuomo
contracts, and small towns environment program
fund contracts)
[
Texas Capital Fund contracts and colonia self-help
center contracts)
] executed at least 18 months prior to the current
program year application deadline. This paragraph does not apply to disaster
relief fund applicants.
(3)
Expend all but the reserved audit funds, or other reserved
funds that are pre-approved by Texas Community Development Program staff,
awarded under a contract with a contract period of 24 months (except for
Texas Capital Fund contracts, housing fund contracts, colonia self-help center
contracts, colonia economically distressed area program contracts,
Young v. Cuomo
contracts, and small towns environment program
fund contracts)
[
Texas Capital Fund contracts, colonia self-help
center contracts and small towns environment program fund contracts)
]
that has been in effect for at least 24 months prior to the current program
year application deadline and submit to the Department a certificate of completion
required by the most recent edition of the Texas Community Development Program
Project Implementation Manual which documents the expenditure of all contract
funds with the exception of any contract funds reserved for audits and other
reserved funds that are pre-approved by Texas Community Development Program
staff. This paragraph does not apply to disaster relief fund applicants.
(4)
Texas Capital Fund (TCF) applicants may not have an existing
contract with an award date in excess of 48 months prior to the application
deadline date, regardless of extensions granted. If an existing contract requires
an extension beyond the initial term, TDED must be in receipt of the request
for extension no less than 30 days prior to contract expiration date. If an
existing contract expires prior to or on the new application deadline date,
without an approved extension, TDED must be in receipt of complete closeout
documentation for the existing contract, no less than 30 days prior to the
new application deadline date (complete closeout documentation is defined
in the most recent version of the Texas Capital Fund Implementation Manual).
(5)
Expend all but the reserved audit funds or other reserved
funds that are pre-approved by Texas Community Development Program staff,
awarded under a contract (except for
Texas Capital Fund contracts, housing
fund contracts, colonia self-help center contracts, colonia economically distressed
area program contracts,
Young v. Cuomo
contracts, and small towns environment program fund contracts)
[
Texas Capital Fund contracts, colonia self-help center contracts and colonia
demonstration fund projects)
] with a contract period of 36 months and
that has been in effect for at least 36 months prior to the current program
year application deadline, and submit to the Department a certificate of completion
required by the most recent edition of the Texas Community Development Program
Project Implementation Manual which documents the expenditure of all contract
funds with the exception of any contract funds reserved for audits and other
reserved funds that are pre-approved by Texas Community Development Program
staff. This paragraph does not apply to disaster relief fund applicants.
(o)-(q)
(No change.)
§9.2.Community Development Fund.
(a)
(No change.)
(b)
Funding cycle. This fund is allocated to eligible units
of general local government on a biennial basis for the
2001 and 2002
[
1999 and 2000
] program years pursuant to regional competitions
held
for the 2001
[
during the 1999 program year
]. Applications
for funding must be received by the Texas Community Development Program by
the dates and times
[
5:00 p.m. on the date
] specified in
the most recent application guide for this fund.
(c)
Allocation plan.
(1)
This fund is allocated among the 24 state planning regions
established pursuant to Texas Local Government Code, Section 391.003, by a
formula based on the following factors and weights:
(A)
number of persons living in poverty--25%
(B)
percentage of persons living in poverty--25%
(C)
population--30%
(D)
number of unemployed persons--10%
(E)
unemployment rate--10%
(2)
Each state planning region is provided with a
2001
[
1999
] program year target allocation and a
2002
[
2000
] program year target allocation of funds for applications
in its region that are ranked through the
2001
[
1999
]
program year regional competitions in accordance with a shared scoring system
involving the Department and the regional review committees. Where the remainder
of the
2001
[
1999
] program year target allocation is
insufficient to completely fund the next highest ranked applicant, the applicant
receives complete funding of the original grant request through a combination
of
2001 and 2002
[
1999 and 2000
] program year funds.
Where the remainder of the
2002
[
2000
] program year
target allocation is insufficient to completely fund the next ranked application,
the Department works with the affected applicant to determine whether partial
funding is feasible. If partial funding is not feasible, the remaining funds
from all the target allocations are pooled to fund projects from among the
highest ranked, unfunded applications from each of the 24 state planning regions.
Selection criteria for such applications will consist of the selection criteria
scored by the department under this fund. Marginal applicants' community distress
scores are recomputed based on the applicants competing in the marginal pool
competition only.
(d)
Selection procedures.
(1)
Prior to the submission deadline specified in the most
recent application guide for this fund, each eligible unit of general local
government may submit an application to the Department for funding under the
community development fund. Two copies of the application must be submitted.
Each applicant must also provide at least one copy of its application to the
applicant's regional review committee within two weeks after the Department
submission deadline.
(2)
Upon receipt of an application, the Department staff performs
an initial review to determine whether the application is complete and whether
all proposed activities are eligible for funding, if ranked. The results of
this initial review are provided to the applicant. If not subject to disqualification,
the applicant may correct any deficiencies identified within 10 calendar days
of the date of the staff's notification.
(3)
Each regional review committee shall hold a scoring meeting
in accordance with the procedures specified in the Department's regional review
committee guidebook and in accordance with the procedures and priorities previously
established by each regional review committee. Each regional review committee
must provide every applicant within its region with an opportunity to make
a presentation before the regional review committee. The regional review committee
will then score the regional review committee scoring factors.
(4)
Following the resolution of any appeals from actions of
the regional review committees as specified in Section 9.8 of this title (relating
to Regional Review Committees) the Department adds scores relating to community
distress, benefits to low-and moderate-income persons, project impact,
other considerations,
and match to the regional review committees'
scores to determine regional rankings. Scores on the factors in these categories
are derived from standardized data from the U.S. Census Bureau, Texas Employment
Commission, and from information provided by the applicant.
(5)
Following a final technical review, the Department staff
presents the
2001
[
1999
] program year and the
2002
[
2000
] program year funding recommendations to the state
review committee. Department staff make a site visit to each of the applicants
recommended for funding prior to the completion of contract agreements.
(6)
The funding recommendations of the state review committee
are then provided to the executive director of the Department. If the state
review committee recommendations differ from the funding recommendations of
a regional review committee, the state review committee must provide the affected
regional review committee with a written explanation of its determination.
The regional review committee may then provide a response to the executive
director of the Department. If there is not a consensus between a regional
review committee and the state review committee, all review comments by all
of the parties involved in the selection process will be forwarded to the
executive director of the Department.
(7)
The executive director of the Department reviews the
2001
[
1999
] final recommendations for project awards and
announces the contract awards.
(8)
Upon announcement of the
2001
[
1999
]
program year contract awards, the Department staff works with recipients to
execute the contract agreements. While the award must be based on the information
provided in the application, the Department may negotiate any element of the
contract with the recipient as long as the contract amount is not increased
and the level of benefits described in the application is not decreased. The
level of benefits may be negotiated only when the project is partially funded
with the remainder of the target allocation within a region.
(9)
When the
2002
[
2000
] program year
Texas Community Development Program allocation becomes available, the executive
director of the department reviews the
2002
[
2000
] program
year final recommendations for project awards and announces the contract awards.
(10)
Upon announcement of the
2002
[
2000
]
program year contract awards, the department staff works with recipients to
execute the contract agreements. While the award must be based on the information
provided in the application, the department may negotiate any element of the
contract with the recipient as long as the contract amount is not increased
and the level of benefits described in the application is not decreased. The
level of benefits may be negotiated only when the project is partially funded
with the remainder of the target allocation within a region.
(e)
Selection criteria. The following is an outline of the
selection criteria used by the Department and the regional review committees
for scoring applications under the community development fund. Seven hundred
points are available.
(1)
Community distress (total--55 points). All community distress
factor scores are based on the population of the applicant. An applicant that
has 125% or more of the average of all applicants in its region of the rate
on any community distress factor, except per capita income, receives the maximum
number of points available for that factor. An applicant with less than 125%
of the average of all applicants in its region on a factor will receive a
proportionate share of the maximum points available for that factor. An applicant
that has 75% or less of the average of all applicants in its region on the
per capita income factor will receive the maximum number of points available
for that factor.
(A)
percentage of persons living in poverty--20
(B)
per capita income--20
(C)
unemployment rate--15
(2)
Benefit to low- and moderate-income persons (total--40
points). An application in which at least 60% of the Texas Community Development
Program funds requested benefit low and moderate income persons receives 40
points.
(3)
Project impact (total--
175
[
195
]
points).
[
(A)
Ten of the 195 points available are awarded
to applicants which did not receive a community development fund or a housing
rehabilitation fund contract award during the 1997 or 1998 program years.
[
(B)
Ten of the 195 points available are awarded
to applicants that have closed all previously awarded community development
fund contracts, with the exception of 1997 and 1998 contracts, by the application
deadline date. A previously awarded community development fund contract is
considered to be closed when: all of the Texas Community Development Program
funds needed to complete the contract activities, except for the reserved
audit funds and other reserved funds that have been pre-approved by Texas
Community Development Program staff, have been expended; and the certificate
of completion required by the most recent edition of the Texas Community Development
Program Project Implementation Manual has been submitted to the Department.
The certificate of completion must be complete and must meet Department standards
for acceptability.
]
(A)
[
(C)
]
Each
[
Of the
remaining 175 points available, each
] application is scored within a
point range based on the application activities. Multi-activity projects which
include activities in different scoring ranges will receive a combination
score within the possible range. Information submitted in the application
or presented to the regional review committees is used by a committee composed
of staff of the Department to generate scores on this factor. The point ranges
used for project impact scoring are as follows:
(i)
water activities, sewer activities, and housing activities
(145 to 175 points);
(ii)
eligible public facilities in a defense economic readjustment
zone (145 to 175 points);
(iii)
street paving, drainage, flood control and handicapped
accessibility activities (130 to 150 points);
(iv)
gas facilities, electrical facilities, solid waste disposal,
fire protection, and health clinic activities (125 to 145 points);
(v)
community center, senior citizens center, social services
center, demolition/clearance, and code enforcement activities (115 to 135
points);
(vi)
jail facilities and detention facilities (105 to 125 points);
(vii)
all other eligible activities (85 to 115 points).
(B)
[
(D)
] Other factors that will be
evaluated by Department staff in the assignment of project impact scores within
the point ranges for activities include, but are not limited to, the following:
(i)
each application is scored based on how the proposed project
will resolve the identified need and the severity of the need within the applying
jurisdiction;
(ii)
projects that address basic human needs such as water,
sewer, and housing generally are scored higher than projects addressing other
eligible activities;
(iii)
projects that provide a first-time public facility or
service generally receive a higher score than projects providing an expansion
or replacement of existing public facilities or services;
(iv)
public water and sewer projects that provide a first-time
public facility or service generally receive a higher score than other eligible
first-time public facility or service projects;
(v)
projects designed to bring existing services up to at least
the state minimum standards as set by the applicable regulatory agency are
given additional consideration;
(vi)
projects which include self-help methods (volunteer labor,
donated materials, donated equipment, etc.) to significantly reduce the project
cost or to significantly increase the proposed improvements are given additional
consideration;
(vii)
projects designed to address drought-related water supply
problems are generally given additional consideration;
(viii)
water and sewer projects that provide first-time water
or sewer service through a privately-owned for-profit utility or an expansion/improvement
of the existing water or sewer service provided through a privately-owned
for-profit utility may, on a case-by-case basis, receive less consideration
than the consideration given to projects providing these services through
a public nonprofit organization.
(4)
Matching Funds (total--60 points). An applicant's matching
share may consist of one or more of the following contributions: cash; in-kind
services or equipment use; materials or supplies; or land. An applicant's
match is considered only if the contributions are used in the same target
areas for activities directly related to the activities proposed in its application;
if the applicant demonstrates that its matching share has been specifically
designated for use in the activities proposed in its application; and if the
applicant has used an acceptable and reasonable method of valuation. The population
category under which county applications are scored depends on the project
type and the beneficiary population served. If the project benefits residents
of the entire county, the total population of the county is used. If the project
is for activities in the unincorporated area of the county with a target area
of beneficiaries, the population category is based on the residents of the
entire unincorporated area of the county. For county applications addressing
water and sewer improvements in unincorporated areas, the population category
is based on the actual number of beneficiaries to be served by the project
activities. The population category under which multi-jurisdiction applications
are scored is based on the combined populations of the participating applicants
according to the 1990 census. Applications for housing rehabilitation and
for affordable new permanent housing for low- and moderate-income persons
receive the 60 points without including any matching funds. This exception
is for housing activities only. Sewer or water service line/connections are
not counted as housing rehabilitation. Demolition/clearance and code enforcement,
when done in the same target area are counted as part of the housing rehabilitation
activity. When demolition/clearance and code enforcement are proposed without
housing rehabilitation activities, then the match score is still based on
actual matching funds committed by the applicant. Applications which include
additional activities, other than related housing activities, are scored based
on the percentage of match provided for the additional activities. Program
funds cannot be used to install street/road improvements in areas that are
not currently receiving water or sewer service from a public or private service
provider unless the applicant provides matching funds equal to at least 50%
of the total construction cost budgeted for the street/road improvements.
This requirement will not apply when the applicant provides assurance that
the street/road improvements proposed in the application will not be impacted
by the possible installation of water or sewer lines in the future because
sufficient easements and rights-of-way are available for the installation
of such water or sewer lines. The terms used in this paragraph are further
defined in the current application guide for this fund.
(A)
Applicants with populations equal to or less than
1,500
[
750
] according to the 1990 census:
(i)
match equal to or greater than 5.0% of grant request--60;
(ii)
match at least 4.0% but less than 5.0% of grant request--40;
(iii)
match at least 3.0% but less than 4.0% of grant request--20;
(iv)
match at least 2.0% but less than 3.0% of grant request--10;
(v)
match less than 2.0% of grant request--0.
(B)
Applicants with populations equal to or less than
3,000 but over 1,500
[
1,500 but over 750
] according to the
1990 census:
(i)
match equal to or greater than 10% of grant request--60;
(ii)
match at least 7.5% but less than 10% of grant request--40;
(iii)
match at least 5.0% but less than 7.5% of grant request--20;
(iv)
match at least 2.5% but less than 5.0% of grant request--10;
(v)
match less than 2.5% of grant request--0.
(C)
Applicants with populations equal to or less than 5,000
but over
3,000
[
1,500
] according to the 1990 census:
(i)
match equal to or greater than 15% of grant request--60;
(ii)
match at least 11.5% but less than 15% of grant request--40;
(iii)
match at least 7.5% but less than 11.5% of grant request--20;
(iv)
match at least 3.5% but less than 7.5% of grant request--10;
(v)
match less than 3.5% of grant request--0.
(D)
Applicants with populations over 5,000 according to the
1990 census:
(i)
match equal to or greater than 20% of grant request--60;
(ii)
match at least 15% but less than 20% of grant request--40;
(iii)
match at least 10% but less than 15% of grant request--20;
(iv)
match at least 5.0% but less than 10% of grant request--10;
(v)
match less than 5.0% of grant request--0.
(5)
Other considerations (total--20
points). An applicant receives up to 20 points on the following three factors.
(A)
Ten of the 20 points available are awarded to
applicants that did not receive a community development fund or a housing
rehabilitation fund contract award during the 1999 or 2000 program years.
(B)
An applicant receives five (5) points if the
applicant has completed the request-for-proposals (RFP) process prior to the
application deadline for engineering services and administrative services
that will be needed to implement the activities included in the application.
To receive these points an applicant must complete the process for selection
of these service providers prior to the application deadline and submit information
described in the most recent application guide for this fund.
(C)
An applicant receives from zero to five (5)
points based on the applicant's past performance on previously awarded TCDP
contracts. The applicant's score will primarily be based on an assessment
of the applicant's performance on the applicant's two (2) most recent TCDP
contracts that have reached the end of the original contract period stipulated
in the contract. TCDP staff may also assess the applicant's performance on
existing TCDP contracts that have not reached the end of the original contract
period. An applicant that has never received a TCDP grant award will automatically
receive these points. TCDP staff will assess the applicant's performance on
TCDP contracts up to the application deadline date. The applicant's performance
on TCDP contracts after the application deadline date will not be evaluated
in this assessment. The evaluation of an applicant's past performance will
include, but is not necessarily limited to the following:
(i)
The applicant's completion of the previous contract
activities within the original contract period.
(ii)
The applicant's submission of the required
close-out documents within the period prescribed for such submission.
(iii)
The applicant's timely response to monitoring
findings on previous TCDP contracts especially any instances when the monitoring
findings included disallowed costs.
(iv)
The applicant's timely response to audit findings
on previous TCDP contracts.
(6)
[
(5)
] Regional scoring factors (total--350
points).
(A)
Required factors. Each regional review committee shall
use the following two factors to score applications in its region.
(i)
Project priorities. Each regional review committee shall
rank and assign points to categories of eligible activities based on the priority
of such projects in the region. The first priority shall receive at least
100 points.
(ii)
Merits of the project. A maximum of 175 points shall be
awarded based on definitions and criteria adopted by each regional review
committee.
(B)
Optional factor. Each regional review committee may
award points based on a local effort factor. Points shall be awarded based
on definitions and criteria adopted by each regional review committee.
[
Optional factors. Each regional review committee may award points based
only on the following two factors.
]
[
(i)
Continuation of need (total--50). The
definitions and criteria used for scoring this factor are specified in the
most recent regional review committee guidebook. A maximum of 50 points are
available.
]
[
(ii)
Local effort. Points shall be awarded
based on definitions and criteria adopted by each regional review committee.
]
Young v.
type-name="italic">Cuomo
[
Cisneros
] Fund.
(a)
General provisions.
Assistance under this fund is
limited to the eligible cities selected by the U.S. Department of Housing
and Urban Development (HUD) to complete the Court-ordered activities under
the Final Order and Decree in the
Young v. Cuomo
litigation. The only eligible activities are the activities
described in revised Memoranda of Understanding (MOUs) and any 1990 Desegregation
Plan activities cited in the revised MOUs.
[
Assistance under this
fund is limited to the local governments located in the 36 counties named
in the
Young v. Cisneros
lawsuit and local
governments selected by the U.S. Department of Housing and Urban Development
(HUD) to submit applications by the application deadline for this fund. The
eligible activities are the required activities described in desegregation
plans and desegregation plan amendments filed by HUD with the U.S. District
Court for the Eastern District of Texas and/or activities described in memoranda-of-understanding
developed by HUD and the local governments affected by the lawsuit.
]
(1)
A local government with
Young
v.
Cuomo
[
Cisneros
] required activities must submit an application under
this fund which addresses the required activities and which includes local
matching funds[
in order to be eligible to submit an application for
community development fund assistance
].
(2)
In addition to the threshold requirements of Section 9.1(h)
of this title (relating to General Provisions) and the requirements of Section
9.1(n), in order to be eligible to apply for
Young
v.
Cuomo
[
Cisneros
] funding, an applicant must document that at least 51%
of the persons who would directly benefit from the implementation of each
activity proposed in the application are of low to moderate income.
(b)
Funding cycle.
Funds, not to exceed $2.3 million,
are available to eligible cities from the 2001 program year allocation. Applications
for funding must be received by the Texas Community Development Program by
the date specified in the application guide for this fund.
[
This
fund is available to eligible units of general local government until the
Department has obligated an amount equal to or less than the amount of funds
that were originally committed from the 1994 and 1995 program year allocations.
Applications for funding were received by the Texas Community Development
Program by 5:00 p.m. on the date specified in the most recent application
guide for this fund.
]
(c)
Selection procedures.
(1)
Prior to the application deadline, each eligible local
government may submit one application for funding under the
Young v.
Cuomo
[
type-name="italic">Cisneros
] fund. Two copies of the application
must be submitted to the Department and at least one copy of the application
must be submitted to the applicant's state planning region.
(2)-(7)
(No change.)
§9.4.Planning/Capacity Building Fund.
(a)
(No change.)
(b)
Funding cycle. This fund is allocated to eligible units
of general local government on a biennial basis for the
2001 and 2002
[
1999 and 2000
] program years pursuant to a statewide competition
held during the
2001
[
1999
] program year. Applications
for funding from the
2001 and 2002
[
1999 and 2000
] program
year allocations must be received by the Texas Community Development Program
by
the dates and times
[
5:00 p.m. on the date
] specified
in the most recent application guide for this fund.
(c)
Selection procedures. Scoring and the recommended ranking
of projects is done by staff and a committee composed of Department staff
with input from the regional review committees. The application and selection
procedures consist of the following steps.
(1)-(6)
(No change.)
(7)
The Department staff submits the
2001
[
1999
] program year and
2002
[
2000
] program year
funding recommendations to the state review committee. The state review committee
reviews the project rankings and provides funding recommendations to the executive
director of the Department.
(8)
The executive director of the Department reviews the
2001
[
1999
] program year funding recommendations and announces
the contract awards.
(9)
Upon the announcement of the
2001
[
1999
] program year contract awards, the Department staff works with recipients
to execute the contract agreements. The award is based on the information
provided in the application and on the amount of funding proposed for each
contract activity based on the matrix included in the most recent application
guide for this fund.
(10)
When the
2002
[
2000
] program year
Texas Community Development Program allocation becomes available, the executive
director of the department reviews the
2002
[
2000
] program
year funding recommendations and announces the contract awards.
(11)
Upon the announcement of the
2002
[
2000
] program year contract awards, the department staff works with recipients
to execute the contract agreements. The award is based on the information
provided in the application and on the amount of funding proposed for each
contract activity based on the matrix included in the most recent application
guide for this fund.
(d)
Selection criteria. The following is an outline of the
selection criteria used by the Department for selection of the projects under
the planning/capacity building fund. Four hundred thirty points are available.
(1)-(2)
(No change.)
(3)
Planning strategy and products (total 275 points).
(A)
Previous planning (50 points).
(i)
An applicant which has not previously received a planning/capacity
building contract or an applicant which has received a planning/capacity building
fund contract prior to the
1991 program year
[
1990 program
] and has not received any subsequent planning/capacity building fund
contracts --50 points.
(ii)
An applicant which has received previous planning/capacity
building funding and demonstrates that at least three previous planning recommendations
have been implemented, i.e., funds from any source have been spent to implement
recommendations included in the plans--40 points.
(iii)
An applicant which has participated in the program established
under this section and demonstrates implementation of some of the planning
recommendations, regardless of the source of funding, or an applicant which
has received previous planning/capacity building funding but demonstrates
that conditions have changed to warrant new planning for the same activities--20
points.
(B)
(No change.)
§9.5.Disaster Relief Fund.
(a)
(No change.)
(b)
Funding cycle. Funds for disaster relief projects will
be awarded throughout the program year in response to disaster situations.
The application for assistance must be submitted no later than 12 months
from the date of the presidential declaration of a major disaster or governor's
declaration of a state of disaster or emergency.
(c)
(No change.)
(d)
Disaster recovery initiative funds. Disaster recovery initiative
funds are available to eligible counties, cities, and Indian tribes to address
damages from severe rain storms and flooding[
that occurred in June of
1997. The funds can only be used to address damages from the storms and flooding
that occurred during June of 1997
]. Any damages sustained in the eligible
county areas that were sustained from storm or flood conditions that occurred
before or after
the dates designated in disaster recovery initiative
notices for funding
[
June of 1997
] are not eligible for assistance.
Disaster recovery initiative funds may supplement, but not replace, resources
received from other Federal or State agencies to address the damages from
the[
June 1997
] storm and flood conditions. These funds cannot
be used for activities that were reimbursable by or for which funds were made
available from the Federal Emergency Management Agency, the Small Business
Administration, the National Resource Conservation Service, or the U.S. Army
Corps of Engineers.
(e)
Eligible applicants for disaster recovery initiative funds.
Eligible applicants for these funds are nonentitlement and entitlement counties,
incorporated cities, or eligible Indian tribes located in one of the counties
named in
disaster recovery initiative notices for funding that are preceded
by
[
the July 7, 1997,
] Presidential Disaster
Declarations
[
Declaration
] for counties in Texas that sustained damages
from severe storms and flooding[
in June of 1997
].[
The twenty-one
(21) counties included in this Disaster Declaration are: Bandera, Bexar, Blanco,
Burnet, Comal, Eastland, Edwards, Gillespie, Goliad, Guadalupe, Hays, Kendall,
Kerr, Kimble, Llano, Mason, Medina, Real, San Saba, Travis, and Uvalde.
]
(f)
Eligible disaster recovery initiative activities.
Since the eligible activities may vary in each disaster recovery initiative
notice for funding, eligible applicants are informed of the eligible activities
in each application guide for disaster recovery initiative assistance.
[
These funds may be used for a wide range of activities including:
]
[
(1)
Acquisition, construction,
reconstruction, or installation of public facilities and improvements.]
[
(2)
Acquisition of real property
(including the buying out of properties in a flood plain and the acquisition
of relocation property.]
[
(3)
Relocation payments and assistance
for displaced persons, businesses, organizations, and farm operations.]
[
(4)
Debris removal, clearance,
and demolition.]
[
(5)
Rehabilitation or reconstruction
of residential structures (for low and moderate income persons) and non-residential
structures.]
[
(6)
Code enforcement in deteriorated
or deteriorating areas, e.g., disaster areas.]
[
(7)
Assistance to facilitate homeownership
among low and moderate income persons.]
[
(8)
Provision of public services
(the TCDP cannot spend more than twenty-five percent of the disaster recovery
initiative funds on public service activities).]
[
(9)
Activities relating to energy
conservation and renewable energy resources, incorporated into recovery.]
[
(10)
Provision of assistance to
profit-motivated businesses to carry out economic development or recovery
activities that benefit the public through job creation/retention.]
[
(11)
Planning and administration
costs (limited to sixteen percent of the total grant amount).]
[
(12)
Acquisition, construction,
or reconstruction of buildings for the general conduct of government damaged
or destroyed as a direct result of this Presidentially declared disaster.]
[
(13)
Construction of new replacement
housing units (for persons of low and moderate income) by units of general
local government damaged or destroyed as a direct result of this Presidentially
declared disaster.]
[
(14)
Reimbursement for pre-award
costs for eligible costs that occurred prior to the effective date of the
TCDP contract agreement but occurred on or after the incident date of the
Presidentially declared disaster.]
(g)-(h)
(No change.)
§9.9.Colonia Fund.
(a)
General provisions. This fund covers the payment of assessments,
access fees, and capital recovery fees for low and moderate income persons
for eligible water and sewer improvements projects, all other program eligible
activities, eligible planning activities projects, and the establishment of
colonia self-help centers to serve severely distressed unincorporated areas
of counties which meet the definition of a colonia under this fund. A colonia
is defined as: any identifiable unincorporated community that is determined
to be a colonia on the basis of objective criteria, including lack of potable
water supply, lack of adequate sewage systems, and lack of decent, safe, and
sanitary housing; and was in existence as a colonia prior to November 28,
1990. For an eligible county to submit an application on behalf of eligible
colonia areas, the colonia areas must be within 150 miles of the Texas-Mexico
border region, except that any county that is part of a standard metropolitan
statistical area with a population exceeding one million is not eligible under
this fund.
(1)
An applicant may not submit an application under this fund
and also under any other Texas Community Development Program fund category
at the same time if the proposed activity under each application is the same
or substantially similar.
(2)
In addition to the threshold requirements of Section 9.1(h)
and Section 9.1(n) of this title (relating to General Provisions), in order
to be eligible to apply for colonia funds, an applicant must document that
at least 51% of the persons who would directly benefit from the implementation
of each activity proposed in the application are of low to moderate income.
(3)
Eligibility for the Department's colonia economically distressed
areas program fund (colonia EDAP fund) is limited to counties, and nonentitlement
cities located in those counties, that are eligible under the TCDP Colonia
Fund and Texas Water Development Board's Economically Distressed Areas Program.
Eligible colonia EDAP fund projects shall be located in unincorporated colonias
and in eligible cities that annexed the eligible colonia where improvements
are to be made
within five years after the effective date of the annexation,
[
after January 1, 1993,
] or are in the process of annexing
the colonia where improvements are to be made. A colonia EDAP fund application
cannot be submitted until the construction of the Texas Water Development
Board's Economically Distressed Areas Program financed water or sewer system
begins.
(4)
In accordance with Subchapter Z, Chapter
43, Section 43.905 of the Local Government Code, eligible colonia areas annexed
by municipalities on or after September 1, 1999, remain eligible for five
years after the effective date of the annexation to receive any form of assistance
for which the colonia would be eligible if the annexation had not occurred.
A nonentitlement city located in a county that is eligible under the TCDP
Colonia Fund and Texas Water Development Board's Economically Distressed Areas
Program that has annexed a colonia area is an eligible applicant for the Department's
colonia EDAP fund. However, an application for TCDP colonia construction fund
or colonia planning fund assistance for a colonia area annexed by a municipality
on or after September 1, 1999, may only be submitted by the county where the
annexed colonia area is located.
(b)-(c)
(No change.)
(d)
Funding cycle. The colonia construction fund and the colonia
planning fund are allocated on an annual basis to eligible county applicants
through competitions conducted during the program year. Applications for funding
must be received by the Department by
the dates and times
[
5:00 p.m. on the dates
] specified in the most recent application guide
for each separate colonia fund category. The colonia self-help centers fund
is allocated on an annual basis to counties included in Subchapter Z, Chapter
2306, Section 2306.582, Government Code, and/or counties designated as economically
distressed areas under Chapter 17, Water Code. The colonia EDAP fund is allocated
on an annual basis and the funds are distributed on an as-needed basis.
(e)
Selection procedures.
(1)
On or before the application deadline, each eligible county
may submit one application for the colonia construction fund
, for colonia
comprehensive planning, and for colonia area planning.
[
and the
colonia planning fund.
] Eligible applicants for the colonia EDAP fund
may submit one application after construction begins on the water or sewer
system financed by the Texas Water Development Board's Economically Distressed
Areas Program. Copies of the application must be provided to the applicant's
regional planning commission and the Department.
(2)-(7)
(No change.)
(f)-(j)
(No change.)
§9.10.Housing Fund.
(a)-(c)
(No change.)
(d)
Eligible activities (housing rehabilitation fund). Housing
units rehabilitated under this fund must be brought up to HUD Section 8 Existing
Housing Quality Standards or local housing codes. The only eligible activities
under the housing rehabilitation fund are:
(1)
Loan or deferred loan assistance for the rehabilitation
of owner-occupied or renter-occupied housing units that are inhabited by persons
with disabilities or that will be occupied by persons with disabilities after
completion of the housing unit rehabilitation. Rehabilitated housing units
must include any improvements necessary to make the housing unit accessible
to persons with disabilities.
(2)
Loan or deferred loan assistance for the rehabilitation
of owner-occupied housing units that are not inhabited by persons with disabilities.
(3)
Loan or deferred loan assistance for the construction of
new housing units that include accessibility features for persons with disabilities.
Construction of new housing must be provided through an eligible subrecipient
such as a neighborhood-based non-profit organization or a non-profit organization
serving the development needs of the TCDP-eligible community. In this instance,
the applicant must provide documentation that confirms a need for a housing
unit or units, that are accessible to persons with disabilities; and that
there is no existing housing currently available in the applicant's jurisdiction
that can satisfy or meet the documented need.
(4)
Soft costs associated with the delivery of the housing
program assistance including the preparation of work write-ups; required architectural
or professional services that are directly attributable to a particular housing
unit; interim and final inspections; and inspections for lead-based paint,
asbestos, termites, and existing septic systems.
(5)
Administrative costs associated with the housing assistance
program.
(6)
TCDP assistance for the hard costs of
housing assistance is limited to no more than $25,000 per housing unit. The
cost of replacement housing can exceed this $25,000 limit.
(e)
Funding cycle (housing rehabilitation fund). This fund
is allocated to eligible units of general local government on a biennial basis
for the
2001 and 2002
[
1999 and 2000
] program years
pursuant to a statewide competition held during the
2001
[
1999
] program year. Applications for funding from the
2001 and
2002
[
1999 and 2000
] program year allocations must be received
by the Texas Community Development Program by
the dates and times
[
5:00 p.m. on the date
] specified in the most recent application
guide for this fund.
(f)
Selection procedures (housing rehabilitation fund).
(1)-(4)
(No change.)
(5)
Following a final technical review, the Department staff
submits the
2001
[
1999
] program year and
2002
[
2000
] program year funding recommendations to the executive director
of the Department.
(6)
The executive director of the department reviews the
2001
[
1999
] program year funding recommendations for project
awards and announces the contract awards.
(7)
Upon announcement of the
2001
[
1999
]
program year contract awards, the Department staff works with recipients to
execute the contract agreements. While the award must be based on the information
provided in the application, the Department may negotiate any element of the
contract with the recipient as long as the contract amount is not increased
and the level of benefits described in the application is not decreased. The
level of benefits may be negotiated only when the project is partially funded.
(8)
When the
2002
[
2000
] program year
Texas Community Development Program allocation becomes available, the executive
director of the Department reviews the
2002
[
2000
] program
year final recommendations for project awards and announces the contract awards.
(9)
Upon announcement of the
2002
[
2000
]
program year contract awards, the Department staff works with recipients to
execute the contract agreements. While the award must be based on the information
provided in the application, the Department may negotiate any element of the
contract with the recipient as long as the contract amount is not increased
and the level of benefits described in the application is not decreased. The
level of benefits may be negotiated only when the project is partially funded
with the remainder of the target allocation within a region.
(g)-(j)
(No change.)
[
(k)
Subsidy recapture requirement (housing
infrastructure fund). Single family subdivision homebuyers will be subject
to an infrastructure subsidy recapture on the capital gain (profit) if the
home is sold, the first lien is refinanced, or the first lien is paid off
during the first five years after closing. A second lien will be completed
and recorded by the locality at the time that the first lien is secured. A
copy of the subordinate lien should be forwarded to the Department. All funds
will be repayable directly to the Department. The recapture amount shall not
exceed the infrastructure construction cost per lot or $5,000, whichever is
less. If the homebuyer is also the recipient of downpayment assistance funds
from the Department, the infrastructure lien will take a third position. After
the five-year timeframe has elapsed, the subordinate lien will become a forgivable
loan. The recapture provision shall not apply to the off-site infrastructure
provided for multifamily projects.
]
§9.11.Small Towns Environment Program Fund.
(a)
General provisions. This fund is available to eligible
units of general local government to provide financial assistance to cities
and communities that are willing to address water and sewer needs through
self-help methods that are encouraged and supported by the Small Towns Environment
Program. The self-help method for addressing water and sewer needs is best
utilized by cities and communities recognizing that conventional water and
sewer financing and construction methods cannot provide an affordable response
to the water or sewer needs. By utilizing a city's or community's own resources
(human, material, and financial), the costs for the water or sewer improvements
can be reduced significantly from the retail costs of the improvements through
conventional construction methods. Participants in the small town environment
program fund should attain at least a forty percent reduction in the costs
of the water or sewer project by using self-help in lieu of conventional financing
and construction methods.
(1)
Small towns environment program funds can be used to cover
material costs, certain engineering costs, administrative costs, and other
necessary project costs that are approved by program staff.
(2)
In addition to the threshold requirements of Section 9.1(h)
and Section 9.1(n) of this title (relating to General Provisions), in order
to be eligible to apply for small towns environment program funds, an applicant
must document that at least 51% of the persons who would directly benefit
from the implementation of each activity proposed in the application are of
low to moderate income.
(3)
Cities and counties submitting 1999 community development
fund applications that do not include water, sewer, or housing activities
are not eligible to receive a 1999
or 2000
grant award from this
fund. However, the Department may consider a city's or county's request to
transfer funds that are not financing water, sewer, or housing activities
under a 1999 or 2000 community development fund grant award to finance water
and sewer activities that will be addressed through self-help methods.
(4)
Cities and counties submitting 2001 community
development fund applications that do not include water, sewer, or housing
activities are not eligible to receive a 2001 or 2002 grant award from this
fund. However, the Department may consider a city's or county's request to
transfer funds that are not financing water, sewer, or housing activities
under a 2001 or 2002 community development fund grant award to finance water
and sewer activities that will be addressed through self-help methods.
(b)-(c)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on June 27, 2000.
TRD-200004462
Daisy Stiner
Executive Director
Texas Department of Housing and Community Affairs
Earliest possible date of adoption: August 13, 2000
For further information, please call: (512) 475-3726