TEXAS REGISTER
AND COMMENTS PROVIDED AT PUBLIC HEARINGS
HELD BY THE DEPARTMENT ON ITEMS THAT RELATE DIRECTLY TO COLONIA SELF-HELP
CENTER PROGRAM RULES.
General Comment: The commentator stated that multiple dwellings are a big
problem in Webb County; the County is restricted by rules and regulations
on assisting multiple dwellings. The County would like some type of waiver
to assist these property owners with housing rehabilitation. Webb County Community
Action Agency Self-Help Center.
Staff Response: There is no federal, state or programmatic prohibition
against assisting the low to moderate income residents of multiple dwellings
on a single lot as long as it is consistent and in compliance with local policy.
Local utility service providers for services such as water, wastewater, or
electricity may impose policies that limit the provision of meters to one
meter per lot. Also, through the development of housing guidelines which must
be approved by the Department, a county may, at its discretion, limit the
provision of housing rehabilitation services to one residence on one lot or
only serve lots with a single dwelling.
§3.2. Definitions
Comment: The commentator stated that the term Colonia Self-Help Center
provider is not defined in the program rules. El Paso County Planning &
Development Department.
Staff Response: Staff recommends that §3.2. Definitions are revised
to add the following definition to the Colonia Self-Help Center Program Draft
Rules.
§3.11. Distribution of Funds and Proposal Requirements
Comment: The commentators asked if the County could conduct the Request
for Proposal (RFP) process to select a Colonia Self-Help Center provider after
the contract has been executed instead of conducting the RFP process before
a contract is executed with the Department. In addition, request that more
time be given for RFP submission from 90 days to 120 days to allow all parties
to review contract with a seamless transaction. El Paso County Planning &
Development Department and Community Development Corporation of Brownsville.
Staff Response: Staff recommends no change to the RFP process. The current
process outlined in the Colonia Self-Help Center Draft Rules allows the county
and the nonprofit organization selected as the Colonia Self-Help Center provider
the opportunity to jointly develop the application for the Colonia Self-Help
Center Program. Staff believes that this cooperation will produce projects
that will reflect both the long-term development goals of the county and the
strengths of the Colonia Self-Help Center provider instead of making the county
choose between various one-sided proposals for what an organization intends
to do with the funding. However, staff agrees that more time should be given
to the RFP process and that the amount expended be reduced to 80% in order
to allow the county to conduct and clear any issues relating to the project
start-up (proposal review, C-RAC meeting, board approval, contract award,
and environmental) as well as to avoid a break in service between the county
and the nonprofit organization selected as the Colonia Self-Help Center provider,
staff recommends the following changes to:
§3.13. Threshold Selection Criteria
Comment: The commentator stated that the preferred experience of the Colonia
Self-Help Center provider be revised in order to allow those organizations
who have a higher capacity but with less experience the opportunity to apply
as a Colonia Self-Help Center provider. The amount of experience an organization
has does not always equate with the capacity. Proyecto Acteca.
Staff Response: Staff recommends no change to this rule. In order to ensure
sufficient capacity and experience, staff will continue to provide technical
assistance to the Contractors and Colonia Self-Help Center provider in order
to meet §3.13. Threshold Selection Criteria.
§3.14. Expenditure Threshold Requirements
Comment: The commentators requested that the expenditure threshold requirements
set by the Department be revised, the current expenditure thresholds outlined
in the Colonia Self-Help Center Draft Rules are unrealistic to reach under
the Colonia Self-Help Center Program due to the length of time that is necessary
to conduct the environmental assessment, project start-up, and other administration
duties that need to be cleared by the Department before the Contractors and
Colonia Self-Help Center provider can start to obligate and expend any funds.
Webb County Community Action Agency Self-Help Center, El Paso County &
Development Department, Hidalgo County and Urban County Program, Cameron County
and Community Development Corporation of Brownsville.
Staff Response: Staff recommends that §3.14. Expenditure Threshold
Requirements is revised to allow more time to be given to the Contractors
to initiate environmental review and clear any issues relating to the project
start-up before obligating or expending any funds that could result in not
achieving the program objectives and possible financial liabilities to the
Department for unallowable or unsupported expenditures. The Contractors and
Colonia Self-Help Center provider will be required to submit program information
at the detailed project activity level that specifies all progress made towards
meeting contract performance and expenditure threshold requirements in addition
to the summary information collected at the contract level. Upon receipt of
program information, staff will track progress through the ORACLE database
system and quarterly reports.
§3.15 Contract Delivery Administration (d) Request for Payments
Comment: The commentator stated that the monthly submission of request
for payments required under the Colonia Self-Help Program Draft Rule is not
feasible to reach at times when Contractors are doing procurement procedure
for some of the activities which could result in slow production and, therefore,
Contractors should be allowed to submit on a needed basis. Cameron County.
Staff Response: Staff recommends that §3.15. Contract Delivery Administration
is revised in order to ensure compliance with federal cost principles and
address any disallowed cost and/or procurement issues within the period covered
by any one request for payment as well as allow the Contractors time to prepare
and submit a completed request for payment. Cameron County.
§3.15. Contract Delivery Administration - (g) Inspections
Comment: The commentators stated that the use of an independent inspector,
over use of the City or County building official, adds increased costs; slows
down production; and adds additional interpretation to what the local City,
County, or Colonia Housing Standards require. Cameron County and Community
Development Corporation of Brownsville.
Staff Response: Staff recommends that §3.15. Contract Delivery Administration
- (g) Inspections is revised in order to demonstrate due diligence in the
administration of Self-Help Center funds and ensure a lasting benefit to the
colonia residents.
§3.18. Sanction/Deobligation
Comment: The commentators recommended that the Sanction/Deobligation rule
be waived for older contracts already in place and apply the Sanction/Deobligation
to new contracts after the effective date of the Rules as adopted. Webb County
Community Action Agency Self-Help Center, El Paso County Planning & Development
Department, El Paso County Colonia Self-Help Center, Hidalgo County and Urban
Development Program, Cameron County and Community Development Corporation
of Brownsville.
Staff Response: Staff recommends no change to this rule. Staff will work
with each respective Contractor who has an executed contract with the Department
and evaluate its contract performance in order for the Department to be able
to apply the appropriate rule(s) and assist the Contractors with any program
issues in order to avoid taking any Sanction/Deobligation measures against
the Contractor.
The new sections are adopted pursuant to the authority of the
Texas Government Code, Chapter 2306.
§3.2.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
Applicant--A unit of general local government who is preparing
to submit or has submitted a Proposal for Colonia Self-Help Center funds.
(2)
Board--The governing board of the Texas Department of Housing
and Community Affairs.
(3)
C-RAC--Colonia Residents Advisory Committee.
(4)
Contract Budget--The exhibit of a contract which specifies
in detail the contract funds by budget category, which is used in the drawdown
processes. The budget also includes all other funds involved that are necessary
to complete the performance statement specifics of the contract.
(5)
Colonia--A geographic area located in a county some part
of which is within 150 miles of the international border of this state and
that:
(A)
Has a majority population composed of individuals and families
of low income and very low income, based on the federal Office of Management
and Budget poverty index, and meets the qualifications of an economically
distressed area under §17.921, Water Code.
(B)
Has the physical and economic characteristics of a colonia,
as determined by the Department and was in existence as a colonia prior to
November 28, 1990.
(6)
Colonia Self-Help Center provider--An organization with
which the Contractor has an executed contract to administer Colonia Self-Help
Center funds.
(7)
Community Action Agency--A political subdivision, combination
of political subdivisions, or nonprofit organization that qualifies as an
eligible entity under 42 U.S.C. §9902.
(8)
Community Development Block Grant (CDBG) nonentitlement
area funds--The funds awarded to the State of Texas pursuant to the Housing
and Community Development Act of l974, Title I, as amended, (42 United States
Code §5301 et seq.) and the regulations promulgated thereunder in 24
Code of Federal Regulations Part 570.
(9)
Contract--A written agreement including all amendments
thereto, executed by the Department and Contractor which is funded with Community
Development Block Grant nonentitlement area funds.
(10)
Contractor--A unit of general local government with which
the Department has executed a contract.
(11)
County--A unit of general local government eligible to
administer Colonia Self-Help Center funds.
(12)
Department--The Texas Department of Housing and Community
Affairs.
(13)
Executive Director--The Executive Director of the Department.
(14)
HUD--The United States Department of Housing and Urban
Development, or its successor.
(15)
Implementation Manual--A set of guidelines designed to
be an implementation tool for the Contractor that have been awarded Community
Development Block Grant Funds and allows the contractor to search for terms,
rules, procedures, forms and attachments.
(16)
Income Eligible Families--
(A)
Low-and moderate income families means families whose annual
incomes do not exceed 80% of the median income of the area, as determined
by HUD and published by the Department, with adjustments for family size.
(B)
Very low-income families means families whose annual incomes
do not exceed 50% of the median family income for the area, as determined
by HUD and published by the Department, with adjustments for family size.
(17)
Needs assessment--The county must prepare a demographic
and characteristics study of the colonias residing in the target area and
the housing needs that the Colonia Self-Help Center is designed to address,
using qualitative and quantitative information and other source documentation.
(18)
Nonentitlement area--An area which is not a metropolitan
city or part of an urban County as defined in 42 United States Code, §5302.
(19)
Nonprofit organization--A public or private organization
that:
(A)
Is organized under state or local laws;
(B)
Has no part of its net earnings inuring to the benefit
of any member, founder, contributor, or individual;
(C)
Has a current tax exemption ruling from the Internal Revenue
Service (IRS) under §501(c)(3), a charitable, nonprofit corporation,
or §501(c)(4), a community or civic organization, of the Internal Revenue
Code of 1986, as evidenced by a certificate from the IRS that is dated 1986
or later. The exemption ruling must be effective throughout the length of
any contract agreements; or classification as a subordinate of a central organization
nonprofit under the Internal Revenue Code, as evidenced by a current group
exemption letter, that is dated 1986 or later, from the IRS.
(D)
A private nonprofit organization's pending application
for 501(c)(3) or (c)(4) status cannot be used to comply with the tax status
requirement.
(20)
Open Cycle--A defined period during which Proposals may
be submitted and which will be reviewed on a first come first serve basis
until all funds are committed. Each Proposal will be assigned a "received
date" based on the date and time it is physically received by the Department
and will be reviewed in accordance with §3.11 - §3.13 of this chapter.
(21)
ORCA--The Office of Rural Community Affairs.
(22)
PER--Performance Evaluation Report produced by the Unit
of local government which should include up-to-date accomplishments in quarterly
reports identifying cumulative data including the colonias served, activities
performed and total number of beneficiaries.
(23)
Performance Statement--The exhibit of a contract which
specifies in detail the scope of work to be performed by eligible activity
as noted in §3.1 of this chapter.
(24)
Poverty--The current official poverty line established
by the Director of the Federal Office of Management and Budget.
(25)
Primary beneficiary--A Low or Moderate income person or
family.
(26)
Proposal--A written request for Colonia Self-Help Funds
in the format required by the Department.
(27)
Unit of General Local Government--A city, town, county,
or other general purpose political subdivision of the State; a consortium
of such subdivisions recognized by HUD in accordance with 24 CFR §92.101
and any agency or instrumentality thereof that is established pursuant to
legislation and designated by the chief executive to act on behalf of the
jurisdiction. A county is considered a unit of general local government under
the Colonia Self-Help Center Program.
§3.11.Distribution of Funds and Proposal Requirements.
(a)
The Department distributes Colonia Self-Help Center funds
to counties from the 2.5% set-aside of the annual Community Development Block
Grant allocation.
(b)
The 2.5% set-aside from the Community Development Block
Grant allocation is distributed to a county though the following means:
(1)
The county submits its Proposal one hundred and twenty
(120) days before the latter of the expiration of its current contract, or
when 80% of the funds under the current contract have been expended along
with the needs assessment during the open cycle.
(2)
Reviews are conducted on a first come first serve basis
until all funds are committed. Each Proposal will be assigned a "received
date" based on the date and time it is physically received by the Department
and will be reviewed in accordance with §3.12 and §3.13 of this
chapter.
(3)
The Department allocates no more than $1.2 million per
Colonia Self-Help Center contract. If there are insufficient funds available
from any specific program year to fully fund a Proposal, then the affected
Applicant may accept the amount available at that time and wait for the remaining
funds to be committed upon the Department's receipt of the Community Development
Block Grant set-aside allocation from the next year.
(c)
The county shall complete a needs assessment for each of
the selected colonias as outlined under §3.4 of this chapter.
(d)
Upon completion of the needs assessments, the county shall
publish a Request for Proposals (RFP) for a Colonia Self-Help Center operator
and review, score and gain the approval of commissioners' court for the operation
of a Colonia Self-Help Center within its respective area.
(e)
The county shall establish a Colonia Self-Help Center to
provide any or all of the activities outlined under §3.1(c) of this chapter
so long as the activities provided by the Colonia Self-Help Center are in
line with the results of the needs assessments. Proposals must cover the following
categories:
(1)
Description of Colonias to be Served. Information should
be sufficient to present an accurate picture of the areas to be served (i.e.
number of houses, number of residents, platted/unplatted, water, wastewater
disposal, utilities, housing conditions, etc.).
(2)
Scope of Work. Based on the results obtained by the needs
assessments, the county shall develop a scope of work for each selected colonia.
In order to provide these services, the county shall be required to leverage
funds, coordinate with financial institutions, prepare grant applications
and coordinate with their contracted partners.
(3)
Method of Implementation. For each colonia to be served
by the Colonia Self-Help Center, the county shall describe the services and
activities to be delivered. The county shall describe the years of experience
and accomplishments relating to affordable housing projects within the last
three years of the organization recommended by the county to operate and manage
the daily operation of the Colonia Self-Help Center.
(4)
Results. The county must include number of colonia residents
to be assisted from each colonia. The county must also specify with Colonia
Self-Help Center funds the number of houses to be rehabilitated, number of
houses to be reconstructed, number of technical assistance visits, number
of grant applications to be submitted for possible leverage, number of checkouts
from the tool lending library, etc.
(f)
Upon approval from commissioner's court; the county shall
submit a Proposal to the Department along with a copy of its needs assessment.
§3.14.Expenditure Threshold Requirements.
(a)
A county that has a current contract must meet the following
expenditure threshold requirements:
(1)
6-Month Milestone. Any County that has not begun any project
activities, including the initiation of the environmental review within six
months after contract execution will have its funds subject to deobligation.
The county will be evaluated after the first twelve months of the contract
period for progress made to carry out project activities.
(2)
18-Month Milestone. The county must expend at least thirty
(30%) percent of the total Colonia Self-Help Center funds awarded within eighteen
(18) months from the start date of the contract.
(3)
30-Month Milestone. The county must expend at least sixty
percent (60%) of the total Colonia Self-Help Center funds.
(4)
42-Month Milestone. In order to meet this requirement the
county must expend at least ninety percent (90%) of the total Colonia Self-Help
Center funds.
(5)
50-Month Milestone. If a county has a contract that is
48 months old or older, one hundred percent (100%) of all activities have
completed all contract fund requests, and a Certificate of Completion report
(which documents the expenditure of all Colonia Self-Help Center funds utilized
for contract activities and does not include any reserved funds other than
the funds needed to pay for a final audit) must be submitted to the Department.
To meet this threshold, all the Colonia Self-Help Center funds needed for
the contract activities, except for the reserved audit funds, must be expended
in order to be considered for future funding.
(b)
If these thresholds are not met, the Department will apply
the options outlined in §3.17 of this chapter.
§3.15.Contract Delivery Administration.
(a)
Upon approval of Colonia Self-Help Center funds by the
Board, the Department shall work with the county to deliver a fully executed
contract based on the work to be performed with milestones beginning sixty
days of award date.
(b)
Environmental. Before any funds can be disbursed environmental
clearance must be approved by the Department.
(c)
Amendments. Any alterations, additions, or deletions to
the terms of the contract shall be submitted in writing to the Department.
The Department, acting by and through its Executive Director or his/her designee,
may authorize, execute, and deliver modifications and/or amendments to any
Colonia Self-Help Center Proposal or written agreement provided that:
(1)
In case of a modification or amendment to the dollar amount
of the request or award, such modification or amendment does not increase
the dollar amount by more than 25% of the original request or award, or $50,000,
whichever is greater;
(2)
In the case of all other modifications or amendments, such
modification or amendment does not, in the estimation of the Executive Director,
significantly decrease the benefits to be received by the Department as a
result of the award; and
(3)
Modifications and/or amendments that increase the dollar
amount by more than 25% of the original award or $50,000, whichever is greater;
or significantly decreases the benefits to be received by the Department in
the estimation of the Executive Director, will be presented to the Board for
approval.
(d)
Request for Payments. The county shall submit a properly
completed request for reimbursement form, as specified by the Department,
at a minimum on a quarterly basis; however the Department reserves the right
to request more frequent reimbursement requests as it deems appropriate to
ensure compliance with the federal cost principles. The Department shall determine
the reasonableness of each amount requested and shall not make disbursement
of any such payment until the Department has reviewed and approved such request.
Payments under the contract are contingent upon the county's full and satisfactory
performance of its obligations under the contract.
(e)
All eligible activities must meet a national objective
and have a corresponding budget line item in the budget. This requirement
will be clearly reflected in the performance statement and budget of the contract.
(f)
Reporting. The county shall submit to the Department such
reports on the operation and performance of the contract as may be required
by the Department. Quarterly reports shall be due no later than the twentieth
(20th) day of the month after the end of each calendar quarter.
(1)
The county shall maintain and submit to the Department
up to date accomplishments in quarterly reports identifying quantity and cumulative
data including the colonias served, activities performed and total number
of beneficiaries.
(2)
The county shall submit and maintain program information
at the detailed project activity level such as how many low and moderate-income
households reside in safe, decent housing, and the number of years of affordability
created for these households.
(g)
Inspections. All housing rehabilitation and new construction
activities must be inspected by an individual licensed by the Texas Real Estate
Commission to perform home inspections. The inspection must ensure that the
construction on the house is complete, that the home is safe and that it meets
at a minimum, Colonia Housing Standards. The licensed inspector must utilize
the most current Property Inspection Report as promulgated by the Texas Real
Estate Commission and all items noted on the inspection report must be corrected
and repaired.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 5, 2007.
TRD-200700307
Michael Gerber
Executive Director
Texas Department of Housing and Community Affairs
Effective date: February 25, 2007
Proposal publication date: October 27, 2006
For further information, please call: (512) 475-4595