13 TAC §17.1, §17.3
The Texas Historical Commission (THC) proposes new §§17.1
and 17.3 of Chapter 17 (Title 13, Part II of the Texas Administrative Code)
concerning the Preservation Trust Fund Grants and the Texas Preservation Trust
Fund.
F. Lawerence Oaks, Executive Director, has determined that for the first
five-year period the rules are in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
rule.
Mr. Oaks has also determined that for each year of the first five year
period the rule amendments are in effect the public benefit anticipated as
a result of the new rules will be an increase in the number, and scale of
potentially important archeological projects that can apply for grants under
the Texas Preservation Trust Fund. Additionally, Mr. Oaks as determined that
there will be no effect on small businesses.
Comments on the proposal may be submitted to F. Lawerence Oaks, Executive
Director, Texas Historical Commission, P.O. Box 12276, Austin, Texas 78711.
Comments will be accepted for 30 days after publication in the
Texas Register
.
The new sections are proposed under §442.005(q), Title 13
Part II of the Texas Government Code, which provides the Texas Historical
Commission with the authority to promulgate rules to reasonably effect the
purposes of this chapter.
These new sections implement §§442.015 and 442.0155 of the Texas
Government Code.
§17.1.Preservation Trust Fund Grants.
(a)
Eligible property. To be considered eligible for grant
assistance, a property must:
(1)
be included in the National Register of Historic Places;
or
(2)
be designated as a recorded Texas historic landmark; or
(3)
be designated as a State Archeological Landmark; or
(4)
be determined by the commission to qualify as an eligible
property under criteria for inclusion in the National Register of Historic
Places or for designation as a recorded Texas historic landmark or a State
Archeological Landmark; or
(5)
have a permanent conservation easement.
(b)
Eligible Applicants: Any public or private entity, including
those whose purposes include historic preservation, and that is either the
owner, manager, lessee, maintainer, or potential purchaser of an eligible
historic property is eligible for fund assistance. If applicant is not the
owner of the historic property, written approval must be submitted by the
owner at time of application agreeing to follow all rules and conditions of
the commission required for receipt of funds.
(1)
Grants are awarded on a competitive basis to eligible properties
judged by the Commission to provide the best use of limited grant funds.
(2)
Meeting the eligibility criteria and submissions of a grant
application does not guarantee award of a grant in any amount.
(c)
Types of preservation grants. Preservation grants shall
be awarded only for:
(1)
development ("preservation," "restoration," "rehabilitation,"
and "reconstruction," as defined by the Secretary of the Interior's Standards
for The Treatment of Historic Properties, 1992 or latest edition); the costs
include professional fees to prepare an acceptable project proposal and supervise
actual construction, the costs of construction, and related expenses approved
by the commission; or
(2)
acquisition of absolute ownership of an eligible property
(that is what is defined in subsection (a) of this section of these rules)
and related costs and professional fees approved by the commission; or
(3)
planning costs necessary for the preparation of property
specific historic structure reports, historic or cultural resource reports,
preservation plans, maintenance studies, and/or feasibility studies as approved
by the commission; or
(4)
education costs necessary for training individuals and
organizations about historic resources and historic preservation techniques.
(d)
Eligible match for grant assistance. Applicants eligible
to receive grant assistance shall provide a minimum of one dollar in cash
match to each state dollar for approved project costs. The commission, by
written policy, may approve up to 50 percent in-kind match for projects involving
highly significant and endangered properties.
(e)
Grant applications.
(1)
Application deadline is 5:00 p.m. on June 1 of each year,
or 5:00 p.m. of the last regular work day of May if June 1 should fall on
a weekend or holiday, or at other times as announced by the Texas Historical
Commission; application forms are to be received by the commission at its
offices by this deadline.
(2)
To remain eligible for potential funding, applicants must
complete the grant application form and include all required attachments as
stated in the grant application instruction booklet.
(3)
Grant applications that are incomplete and/or received
after the application deadline are ineligible for funding.
(4)
Grant applications with budgets showing a high percentage
of administrative costs will be considered to be less competitive than applications
having little or no administrative costs.
(f)
Initial grant allocations. Grants shall be allocated by
vote of the commission at large upon the recommendation of the Trust Fund
Committee at any duly noticed meeting of the commission. Reallocation of returned
funds may be made by the executive committee of the commission upon the recommendation
of the architecture and/or archeological committees of the commission. Grant
allocations will generally be in the amount of $2,500 or more, but shall not
exceed $100,000.
(g)
Final grant approval.
(1)
Submission of project proposal.
(A)
For architectural projects to remain eligible for the grant
allocation, an acceptable project proposal, consistent with the Secretary
of the Interior's Standards for the Treatment of Historic Properties, 1992
or most recent edition, and consisting of plans/specifications, appraisal,
unexecuted contract documents, and/or other material as required shall be
submitted to the commission for review and approval.
(B)
An acceptable project proposal must be submitted within
three months of the allocation by the commission unless otherwise approved
in writing by the commission.
(2)
Review and approval of project proposal. Upon completion
of the review of the project proposal, approved projects will be notified
of the assigned project start date, as well as the project expenses eligible
for grant funding (allowable expenses) and those expenses not eligible (unallowable
expenses).
(A)
For archeological projects to remain eligible for the grant
allocation, modifications to the scope of work and research design as required
by the commission shall be submitted to the commission for review and approval.
(B)
Review and approval of scope of work and research design.
Upon completion of the review of the scope of work and research design, approved
projects will be notified of the assigned project start date, as well as the
project expenses eligible for grant funding (allowable expenses) and those
expenses not eligible (unallowable expenses).
(C)
For educational projects to remain eligible for the grant
allocation, an acceptable project proposal must be submitted within three
months of the allocation by the commission unless otherwise approved in writing
by the commission.
(D)
Approved projects will be notified of the assigned project
start date, as well as the project expenses eligible for grant funding (allowable
expenses) and those expenses not eligible (unallowable expenses).
(E)
For planning projects to remain eligible for the grant
allocation, an acceptable project proposal must be submitted within three
months of the allocation by the commission unless otherwise approved in writing
by the commission.
(F)
Approved projects will be notified of the assigned project
start date, as well as the project expenses eligible for grant funding (allowable
expenses) and those expenses not eligible (unallowable expenses).
(3)
Commencement of project work. Project work as approved
shall commence within 60 days of the assigned start date unless otherwise
approved in writing by the commission.
(4)
Forfeiture of grant allocation. Failure to comply with
the deadline for submission of an acceptable project proposal, or to meet
the deadline for starting the project work, or to perform any part of the
project work as approved, or to receive permission from the commission before
commencing additional work, shall result in forfeiture of the full grant amount.
(h)
Award of contract.
(1)
Architectural development grant projects. All project work
as approved in the project proposal shall be awarded subsequent to formal
advertising for bids.
(2)
Architectural planning grant projects. Contract for work
described in the approved project proposal shall be awarded subsequent to
interview with at least three professional firms.
(3)
Commencement of project work. Approved project work may
not begin before the assigned project start date, except for planning work
connected with development projects.
(i)
Grant reimbursement procedures.
(1)
Reimbursement of allowable project expenses. The only expenditures
made before a start date that are reimbursable are for planning work done
on development projects performed subsequent to initial project application
submittal.
(2)
All payment of grant funds shall be strictly on a reimbursement
basis. Reimbursement may be made after the competitive award of contract and
submission of proof of all incurred allowable expenses and corresponding payments
totaling more than 50% but less than 75% of the total project cost, and/or
at the completion of the project after an acceptable required completion report
and/or planning documents have been received by the commission.
(3)
Deadline for submission of requests for reimbursement.
Allowable project expenses equal to two times the grant amount shall be incurred
by the following July 15 unless otherwise announced by the commission. Proof
of those incurred expenses and corresponding payments shall be submitted to
the commission by the following August 1 unless otherwise announced by the
commission.
(4)
Forfeiture of grant. Failure to expend the full grant amount
by the July 15 deadline or other deadline as announced by the commission or
to submit to the commission all required material by the August 1 deadline
or other deadline as announced by the commission shall result in forfeiture
of the remaining grant amount unless otherwise approved in writing by the
commission.
(j)
Deed restrictions/designations/conservation easements.
Acquisition and development projects shall be encumbered, prior to reimbursement
of any project expenses, with a protective designation, deed restriction or
conservation easement in a format acceptable to the commission requiring the
owner and successors in interest, if any, to maintain the site in the condition
or state of repair as at the time of completion of grant-assisted work, to
secure the approval of the commission or its duly authorized representative
for any proposed changes beyond normal maintenance to the site, and, in the
case of political subdivisions of the state, to meet the requirements of the
Uniform Grant and Contract Management Act, Texas Government Code Chapter 783.
The deed restriction shall run with the land, be enforceable by the State
of Texas, and its duration will be based upon the cumulative amount of grant
assistance as follows:
(1)
less than $10,000-10 years from start date of the deed
restrictions set by the commission.
(2)
$10,000-$50,000-30 years from start date of the deed restrictions
set by the commission.
(3)
greater than $50,000-50 years from start date of the deed
restrictions set by the commission.
(k)
Repayment penalty for resale of property within one year
of acquisition. If a property acquired with a preservation grant is sold within
one year of the purchase date, the project allocation agreement shall provide
that the owner shall repay the State of Texas the amount of the grant allocation.
(l)
Completion reports for acquisition and development projects.
Projects assisted with acquisition or development grants will be required
to submit a project completion report in triplicate, consisting of photo documentation
and project summary prepared by the supervising project professional, to the
commission no later than August 1, or as otherwise announced by the commission,
of the current fiscal year. Final reimbursement of the grant allocation will
be retained until receipt of an acceptable completion report by the commission.
(m)
Professional standards.
(1)
Project personnel for development and planning grants.
Project proposal documents for development and planning grants shall be prepared
by, and development work supervised by, appropriate personnel in compliance
with the following criteria:
(A)
History. The minimum professional qualifications in history
are a graduate degree in history or closely related field; or a bachelor's
degree in history or closely related field plus one of the following:
(i)
at least two years of full-time experience in research,
writing, teaching, interpretation, or other demonstrable professional activity
with an academic institution, historical organization or agency, museum, or
other professional institution; or
(ii)
substantial contribution through research and publication
to the body of scholarly knowledge in the field of history.
(B)
Archeology. The minimum professional qualifications in
archeology are a graduate degree in archeology, anthropology, or closely related
field plus:
(i)
at least one year of full-time professional experience
or equivalent specialized training in archeological research, administration,
or management;
(ii)
at least four months of supervised field and analytic
experience in general North American archeology; and
(iii)
demonstrated ability to carry research to completion.
(iv)
In addition to these minimum qualifications, a professional
in prehistoric archeology shall have at least one year of full-time professional
experience at a supervisory level in the study of archeological resources
of the prehistoric period. A professional in historic archeology shall have
at least one year of full-time professional experience at a supervisory level
in the study of archeological resources of the historic period.
(C)
Architectural history. The minimum professional qualifications
in architectural history are a graduate degree in architectural history, art
history, historic preservation, or closely related field plus one of the following:
(i)
at least two years of full-time experience in research,
writing, or teaching in American architectural history or restoration architecture
with an academic institution, historical organization or agency, museum, or
other professional institution; or
(ii)
substantial contribution through research and publication
to the body of scholarly knowledge in the field of American architectural
history.
(D)
Architecture. The minimum professional qualifications in
architecture are a professional degree in architecture plus at least two years
of full-time professional experience in architecture; or a state license to
practice architecture.
(2)
Project personnel for acquisition grants. The single appraisal
required for acquisition grants shall be prepared by a professional appraiser.
(n)
Performance standards. All development and planning projects
must be in conformance with the Secretary of the Interior's Standards for
the Treatment of Historic Properties, 1992 or latest edition. All archeological
projects must be in conformance with the Secretary of the Interior's Standards
for Preservation Planning and Standards for Archeological Documentation, 1983
or latest edition.
(o)
Compliance with requirements for accessibility to facilities
by persons with disabilities. All projects must be in compliance with or in
receipt of appropriate variance from the regulations issued by the Texas Department
of Licensing and Regulation, under the Architectural Barriers Act, Article
9102, Texas Civil Statutes.
(p)
Compliance with Uniform Grant and Contract Management Act.
All projects by political subdivisions of the state must be in compliance
with the Uniform Grant and Contract Management Act, Texas Government Code
Chapter 783.
§17.3.Texas Preservation Trust Fund.
(a)
Definition. The Texas preservation trust fund (hereinafter
referred to as trust fund or fund) is a fund in the state treasury, created
by enactment of Senate Bill 294 by the 71st Texas Legislature (1989), which
amended the Texas Government Code, Chapter 442, by adding §442.015. The
trust fund shall consist of transfers made to the fund, including state and
federal legislative appropriations, grants, donations, proceeds of sales,
loan repayments, interest income earned by the fund, and any other monies
received. Funds may be received from federal, state, or local government sources,
organizations, charitable trusts and foundations, private individuals, business
or corporate entities, estates, or any other source.
(b)
Purpose. The purpose of the Texas preservation trust fund
is to serve as a source of funding for the Texas Historical Commission (THC)
to provide financial assistance to qualified applicants for the acquisition,
restoration, or preservation of historic properties in the State of Texas.
(c)
Property eligibility. Historic properties must either be
listed on the National Register of Historic Places, designated as recorded
Texas historic landmark, or be determined by the commission to qualify as
an eligible property under criteria for inclusion in the National Register
of Historic Places, or for designation as a recorded Texas historic landmark.
Priority shall be given to those properties determined by THC to be endangered
by impending demolition, neglect, under use, looting, or other threat.
(d)
Fund recipient eligibility. Any public or private entity,
including those whose purposes include historic preservation, and that is
the owner, manager, lessee, maintainer, or potential purchaser of an eligible
historic property is eligible for fund assistance. If applicant is not the
owner of the historic property, written approval must be submitted by the
owner at time of application agreeing to follow all rules and conditions of
the commission required for receipt of funds.
(e)
Types of assistance. THC shall provide financial assistance
in the form of grants or loans. Grant recipients shall be required to follow
the terms and conditions of the Preservation Trust Fund Grants and other terms
and conditions imposed by THC at the time of the grant award. Loans shall
have a term not to exceed five years at an interest rate at the prime interest
rate at the time the loan is made.
(f)
Preservation easements and covenant. The owner of record
(and the mortgagee, if applicable) of any property benefiting from fund assistance
shall encumber the title of the property with a State Archeological Landmark
designation, or conservation easement and covenant in a form prescribed by
THC prior to disbursement of any fund monies or conservation easement (as
defined in Title 8, Natural Resources Code, Chapter 183).
(g)
Allowable use of trust fund monies. In all cases when no
specification is made or the specified amount is less than $5,000 the proceeds
and/or interest on such gifts or monies shall be unencumbered and shall accrue
to the benefit of the entire fund. Money deposited to the fund for specific
projects shall only be used for the projects specified provided that the specific
project has received approval of the THC, there is or will be a dedicated
account within the Trust Fund for that project, and all other requirements
herein are met. Money deposited to specified projects in amounts of $5,000
or greater shall retain all proceeds or interest earned for that specified
project unless the donor stipulates that all proceeds or interest earned shall
be unencumbered and accrue to the benefit of the entire fund.
(h)
Organization. The Texas preservation trust fund shall be
administered by THC through its trust fund committee. The trust fund advisory
board, and THC staff shall provide support and input as needed.
(i)
Texas Historical Commission Preservation Trust Fund Committee
(hereinafter referred to as trust fund committee). The executive committee
of the Texas Historical Commission shall serve as the trust fund committee.
All actions of the Texas trust fund committee are subject to ratification
by the full Texas Historical Commission. Duties of the trust fund committee
are:
(1)
to appoint the advisory board after considering the recommendations
of the Texas governor, lieutenant governor, and the speaker of the house,
and to fill vacancies on the advisory board, as needed;
(2)
to approve all rules, policies, and guidelines for the
administration of the fund or any of its associated boards and committees;
(3)
to approve the acceptance of grants or other donations
of money, property, and/or services from any source. Money received shall
be deposited to the credit of the Texas preservation trust fund;
(4)
to provide final approval of all trust fund allocations
based on advisory board and THC staff recommendations.
(j)
Texas Preservation Trust Fund Advisory Board (hereinafter
referred to as advisory board).
(1)
In accordance with Texas Government Code §442.015,
which created the Texas preservation trust fund, the advisory board shall
consist of:
(A)
one representative of a bank or savings and loan association;
(B)
one attorney with a recognized background in historic preservation;
(C)
two architects with substantial experience in historic
preservation;
(D)
two archeologists with substantial experience in Texas
archeology;
(E)
one real estate professional with experience in historic
preservation;
(F)
two persons with a demonstrated commitment to historic
preservation; and
(G)
two directors of nonprofit historic preservation organizations.
(2)
Members of the advisory board shall serve a two-year term
expiring on February 1 of each odd-numbered year. Advisory board members may
be reappointed. Advisory board members will continue to serve until a new
appointment is made or until reappointed. A member of the advisory board is
not entitled to compensation for his service, but is entitled to reimbursement
for reasonable expenses incurred while attending advisory board meetings subject
to any limit provided by the General Appropriations Act. The advisory board
shall elect a chairman for a two-year term from among its membership at its
first regularly scheduled meeting. Subsequent elections for chairman shall
be held at the end of the existing chairman's term. The chairman shall not
serve in that capacity for more than two consecutive two-year terms. The advisory
board shall meet annually in conjunction with the THC quarterly meeting in
the fall of each year and at other times as determined by their chairman.
Duties of the advisory board are:
(A)
to make recommendations to THC through the trust fund committee
on all trust fund project allocations, as per the trust fund statute;
(B)
to consult with and advise the THC trust fund committee
and THC staff on matters relating to more efficient utilization or enhancement
of the trust fund in order to further the cause of historic preservation throughout
Texas; and
(C)
to provide advice and guidance in their respective area
of expertise.
(k)
Texas preservation trust fund staff. The executive director
of the Texas Historical Commission shall organize and administer the staff
for the Texas preservation trust fund.
(l)
General provisions.
(1)
Code of conduct--The THC Code of Conduct shall apply to
members of the advisory board.
(2)
Gender--As used herein, the masculine pronoun shall include
the feminine.
(3)
Vacancies--Any vacancy on a trust fund committee or board
may be filled at any time in the same manner as the incumbent member was elected
or appointed.
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 July 30, 2001.
TRD-200104395
F. Lawerence Oaks
Executive Director
Texas Historical Commission
Earliest possible date of adoption: September 9, 2001
For further information, please call: (512) 463-5711