Under provisions of sections 37-1001 through 37-1015, R.R.S., 2004, the following rules and regulations shall govern the procedures for administration of the Trail Development Assistance Act.
005.01 Definitions 005.01A Grantee or Applicant or Sponsor -- shall mean any natural resources district, political subdivision, other public agency, or private nonprofit organization whose primary purpose is the purchase, development or maintenance of a recreational trail.005.01B Trail Development Assistance Fund -- shall mean the fund created for the acquisition, development or maintenance of recreational trails pursuant to 37-1001 through 37-1015, R.R.S., 2004.005.01C Commission -- shall mean the Nebraska Game and Parks Commission, headquarters located at 2200 North 33rd Street, PO Box 30370, Lincoln NE 68503-0370.005.01D Director -- shall mean the Game and Parks Commission appointed Secretary, who will act as its Director and Chief Conservation Officer and be in charge of its activities.005.02 Application Any natural resources district, political subdivision, other public agency or private nonprofit organization whose primary purpose is the purchase, development or maintenance of a recreational trail or any combination thereof may apply to the Commission for funding to assist in the purchase, development and maintenance of a recreational trail.
005.02A Grantee Action -- Any project submitted to the Commission for review and consideration for funding must first be reviewed and approved by a majority of the applicant's governing board or council. In the event of a joint application pursuant to the Intergovernmental Cooperation Act, or otherwise, a majority vote of each board in favor of the project will be necessary.005.02B Application Deadline -- The deadline for receipt of the grant application and the supporting documents in acceptable form shall be by the close of business on the 1st day of October for staff review. Applications shall be accepted by the Commission not more than annually. All applications will be reviewed by the Commission staff for eligibility to ensure they are consistent with program policy and grant purposes. In the event that no funding is provided in any year the deadline will be extended to the following year or at a time as directed by the Commission.005.02C Preparation of the Application -- Grant applications shall provide sufficient detail as to scope, project execution by the sponsor and any other matters as directed by the application instructions. Any grant application that is incomplete by the grant application deadline shall not be considered for funding by the Commission in a funding cycle. An eligible applicant may submit only one application in a funding cycle.005.02D Joint Applications -- Joint grant applications are permitted. One designated entity must serve as the principle point of contact for administration of the grant application. If a joint grant application is made through the Interlocal Cooperation Act, a signed copy of this agreement between joint applicants must be provided as a part of the application and supporting documents.005.02E Commission Action -- The Director or their designee of the Commission will submit a project list and present recommendations of funding priority to the Commission following rating and ranking of all eligible projects by the staff. The Commission may approve, modify or disapprove an application for any project on the list. The Commission may change the order of the list and may fund up to fifty percent of a project. Any reasons for change or disapproval of any recommended project or funding level shall be included in the motion for change.005.02F Commitment of Funds -- The Commission need not commit all funds available during a funding cycle. The Commission may reserve unexpended or repaid funds for the next funding cycle or for anticipated future project needs and any other contingencies. Project costs that exceed a currently funded grant may not be eligible for assistance in a subsequent funding cycle.005.02G Retention of Applications -- Applications that are not funded shall be retained on file at the Commission office until the next round of available funding. The original application shall be returned upon written request by the sponsor. The sponsor may resubmit the returned application for funding during a new grant cycle. Prior to the Commission's reconsideration of an application in the next funding cycle, the sponsor shall be required to review the application to update costs, scope or any other matters affecting the application. The deadline for renewal of any application shall be on the same date as for new applications.005.02H Rating System Not Used -- During a funding cycle when the total eligible grant requests are less than the available allotment, the project selection rating criteria need not be utilized, but it may be used at the discretion of the staff to determine the merits of the projects.005.02I Application Withdrawal or Project Cancellation -- An application may be unilaterally withdrawn by the sponsor at any time prior to or after the application being considered by the Commission. If the project is cancelled by the sponsor after the funds have been allocated the sponsor must refund unused grant funds allocated by the Commission. Funds that have already been expended shall, if necessary, be recovered according to existing state law.005.03 Project Selection Criteria In the event that the total grant requests exceed the available allotment in any year, the Commission staff shall establish and implement project selection criteria. The Commission staff may verify the contents of the application and may visit the trail site. The Commission shall evaluate each application primarily on the basis of whether the predicted use of the trail justifies trails purchase, construction and maintenance costs including, but not limited to, the following criteria:
005.03A Meets the primary purpose of the Trails Development Assistance Act which encourages the saving of potential railroad rights-of-way for interim use as public recreation trails (10 points).005.03B Need in terms of the population to be served and existing trails in the area (15 points).005.03C Compatibility with local, area-wide, regional or statewide plans (15 points).005.03D Quality of the site (25 points).005.03E Benefits of multiple uses and recreational opportunities (20 points).005.03F Economic benefits to the local area (10 points).005.03G Special facilities for the handicapped (5 points).005.03H Trail right-of-way maintenance necessary for public safety (5 points).005.04 Project Agreement After the Commission has approved funding for a recreational trail project, the Commission and the applicant shall execute a project agreement. The agreement will establish a framework for accomplishing the project. Execution of the agreement by the Commission constitutes its approval of the project. Trail projects are governed by any applicable provision of State statutes in effect at the time of execution of the agreement and any statute or amendment to any statutes subsequent to the execution of the agreement. Any amendment to the agreement must be formally agreed to by both the Commission staff and the grant recipient.
005.04A Agreement Framework -- The major points of the agreement are as follows: The project agreement shall specify the grantee's obligations including the rules and regulations applicable to the conduct of a project under the Act and any special terms and conditions to the project established by the Commission. The agreement will specify the overall funding level approved and shall contain an estimated budget for eligible work items. The agreement shall also specify the project period (2 years), what is to be done and how the project will be accomplished, the sponsors responsibilities for project planning, design, land acquisition, contracting, procurement, inspections, documentation, accounting, auditing and project close-out and other similar matters.005.04B Project Agreement Amendments -- Project agreements for which grants have been approved may be amended to increase or decrease project scope, decrease grant amount or to increase grant amount, if funds are available. Amendments to increase the grant amount must be recommended by the Director or their designated staff and approved by the Commission. Any grant increase will be limited to 50% of the original grant amount. Amendments to the project time period (1 year maximum) may be approved by Commission staff. A project amendment which involves a change in purpose or scope also must be approved by the Commission.005.05 Grantee Performance Grant recipients are expected to commence and complete projects in a timely, expeditious and workmanlike manner. A project period commensurate with the work to be accomplished will be established and included in the project agreement. Failure to initiate the project in a reasonable time period or to complete the project in a timely or workmanlike manner may be cause for termination of the grant, return of unused grant funds at the time of termination, cancellation of the grant by the Commission or require remedial action on the part of the grant sponsor. Such action by the Commission shall be conducted at a public meeting. The sponsor may appeal the decision of the preceding actions by the Commission as provided by the Administrative Procedure Act (Chapter 84, Article 9).
005.06 Appraisal Reports Appraisal reports for acquisition projects must be reviewed and approved or disapproved in writing by the Commission staff. Appraisals are to be conducted using standards provided by the Commission staff. All appraisals must be conducted and reported by a Nebraska licensed appraiser. Such appraisals will be prepared following Commission approval of the project and when directed by Commission staff.
005.07 Pre-Agreement Costs Pre-approval (pre-agreement) costs incurred by consultants, architects, engineers or landscape architects related to the preparation of the grant application and supporting documents for submission to the Commission will be eligible at a later time if, and when, a project is approved for funding. Such costs may include, but are not limited to, the preparation of site plans, plat maps, cost estimates, the application and other information required of the application instructions or deemed necessary by Commission staff. Such costs should be reasonable and commensurate with the anticipated cost on the judgement of the Commission staff.
005.08 Project Eligibility and Public Use The recreational trails program is restricted to the acquisition, construction, maintenance and improvement of recreational trails open for public use. All trails funded under the recreational trails program must be formally dedicated for public use upon project completion. A private trail project or a project for exclusive private purposes is not eligible for funding under this program.
005.09 Eligible Project Costs 005.09A Land -- Land acquisition costs include, but are not limited to, appraisal costs, abstracts, prorated taxes, deed tax stamps, recording fees and any necessary surveys and required fencing. Land may be acquired by lease, easement or fee simple. The grantee or a designee of the grantee, is solely responsible for the performance of all land negotiation and acquisition activities in accord with applicable state laws.005.09B Fencing -- Whenever abandoned railroad right-of-way trails are developed pursuant to the Trail Development Assistance Act, boundary fences shall be constructed and maintained as required for railroads in section 37-1012, R.R.S. 2004. Such fences shall be deemed to be manifestly designed to exclude intruders for the purposes of subdivision (1)(c) of section 28-521, R.R.S. 1995 Such costs shall be allowed unless such construction and maintenance is waived in writing by the affected adjoining property owners.005.09C Cultural Surveys -- A cultural survey will be required on project lands, and costs related to conducting a resources survey may be eligible for matching assistance. Such survey will be conducted by State Historic Preservation Office personnel pursuant to procedures established by the Nebraska State Historical Society.005.09D Development Cost -- Eligible development costs are limited to: trail surfacing; resurfacing; rehabilitation; modernization; upgrading and reconstruction; initial trail construction including grading, drainage, paving, erosion control, bridge and culvert repair, new bridges and culverts, intersection improvements including required traffic signalization that is an integral part of a project; construction or improvement of rest areas, information centers, waysides, permanent interpretive displays, lighting, restrooms, including utilities, trail signs, landscaping, parking areas, walkways; utility relocation costs necessary for trail construction or improvement if the utility is not located on public right-of-way; storm drainage and storm sewer costs to the extent needed for draining the trail; design engineering and construction inspection costs directly associated with the project and other costs that may be deemed appropriate by the Commission staff. None of the aforementioned costs may be incurred prior to execution of the of the project agreement, except the costs allowed and noted in section 005.07 (Pre-Agreement Costs) of these rules.005.09E Advance Eligibility for Land Acquisition -- If there is an extreme urgency involving land acquisition, a potential applicant may formally request from the Commission a written waiver of retroactivity which, if granted, will permit the applicant to acquire the land immediately without jeopardizing the project's eligibility for funding should the application be approved subsequent to later Commission approval. Granting of the waiver shall not imply or guarantee that a subsequent application which includes the acquisition costs will be approved and funded. The request for the advance eligibility waiver must include a justification statement regarding the urgency of the acquisition, a description of the land to be acquired, a county map showing its location and a site plan showing the proposed trail. The advance eligibility waiver must be requested and approved prior to the applicant's acquisition of the land in question. The term remaining on the waiver will be one year from the date the waiver is granted. The land must be acquired pursuant to state law in order for the costs to be eligible for later funding. Assurance of Compliance with state laws will be required of the potential sponsor.005.09F Administrative Costs -- Administrative costs for the administration of the Trail Development Assistance Fund incurred by the Commission shall not exceed five percent (5%) of the appropriation authorized by the Legislature.005.10 Ineligible Costs Any of the eligible costs enumerated in 005.09 that are incurred prior to Commission approval of the grant by the Commission will be deemed ineligible for matching assistance.
005.11 Matching Funds Matching funds shall be from sources other than from the Trail Development Assistance Fund. Matching funds shall not include other grants from State agencies or the provision of in-kind labor services.
005.11A The value of land may be an eligible matching contribution provided: (1) The land was donated after the Commission's review and approval of the project; (2) The value of the land is based on an appraisal that will be subject to review and approval by Commission staff following project approval by the Commission; (3) The donation is in compliance with 005.09E of these regulations.005.11B Matching funds from the Trail Development Assistance Fund may not be dispersed in excess of 50% of the total project costs. Grantees may expend more than their share if necessary to complete the grant project.005.11C Disbursement of matching funds from the Trail Development Assistance Fund shall be made to a qualified applicant as a lump sum grant. Qualified applicants that have met all applicant requirements and who have received grant approval by the Commission shall receive their disbursement by the January 1 following receipt of the application.005.11D Private, nonprofit organization applicants must certify at the time of application that sufficient matching funds, land (donated), letter of credit or other acceptable financial instrument are available from private sources to cover the private share of the project.005.12 Eminent Domain The Trail Development Assistance Act shall not be construed to limit the power of eminent domain by political subdivisions or agencies of the State of Nebraska. Nonprofit applicants may not exercise the power of eminent domain.
005.13 Sign Placement Owners or operators of a trail developed pursuant to the Trail Development Assistance Act shall, at appropriate entry points, place signs warning that departures from the boundaries of the trail as marked by fences or otherwise may result in prosecution for trespassing. Such signs are eligible for assistance from the Trail Development Fund.
005.14 Audits and Record Keeping The Commission or State Auditors may audit all project costs and records incurred for compliance with the project agreement, including costs and records that are part of the matching contribution. Grant recipients shall keep adequate records relating to the project administration and all records shall be retained in accordance with state laws.
005.15 Non-Compliance The Commission may revoke funding commitments, seek repayment of funds granted, or both actions if:
005.15A The terms of the project agreement have not been, nor are anticipated to be, fulfilled.005.15B The Commission finds that the application contained inaccuracies, omissions, errors or misrepresentations.005.15C The time schedule for project completion was misrepresented or has not been maintained.005.15D Any property, real or personal, acquired or developed with Trail Development Assistance Funds passes or diverts from control of the grantee, prior to project expiration or prior to expiration of the time limit of the Act or are used for purposes other than the approved project purpose, unlawful or otherwise.005.15E The sponsor may appeal the decision of the preceding actions by the Commission as provided by the Administrative Procedure Act (Chapter 84, Article 9).005.16 Value of Remitted Funds Remitted funds for either personal or acquired property remitted pursuant to 005.15A through 005.15D will be remitted in the amount of the original purchase price of the property or at a value pursuant to current State Law.
005.17 Fund Disposal Any returned funds resulting from repayment by the grantee shall be deposited in the Trail Development Assistance Fund account from which they were originally apportioned, or as pursuant to State Law in the event the program should lapse or terminate.
005.18 Time Period of Remitted Funds The grantee shall have a period of two years after notification by the Commission Director in which to remit unlawfully used funds.
005.19 Land Disposal Whenever the Commission and a grantee mutually agree that land acquired or developed with Trail Development Assistance Funds are no longer of value for the program purposes, or that the grantee can show good cause why the land should no longer be used in accord with the approved project purpose; the land may be disposed of with the Commission's approval and the proceeds therefrom shall be returned to the State Trail Development Assistance Fund account or in an account as directed by State Law. Land to be disposed that was acquired by non-profit organizations will be first offered to the original seller for repurchase.
005.20 Ineligibility Whenever the Director or their designee determines at any time that a grantee is in violation of the provisions of the aforementioned rules, the grantee shall be ineligible for further assistance for subsequent projects until the matter has been resolved to the satisfaction of the Director or their designee and the Commissioners.
005.20A No real property, leased property, easements, rights-of-way or other property interests which are owned, controlled, managed or maintained by the Commission on the effective date of this act may be the subject of a grant application under the Trail Development Assistance Act.005.21 Annual Reporting Grantees shall report on the status of all project activity no later than one year from the date of project approval. The report shall include work completed or land acquired to date, anticipated problems or other pertinent matters.
005.22 Conflict of Interest Any Commission employee, the Director or Commission member who sits on any board of a potential grantee that will be submitting a grant application for assistance under the Trail Development Assistance Program will be prohibited from participating in discussion on and shall not vote on a particular project for funding consideration.
163 Neb. Admin. Code, ch. 1, § 005