(1)
Project Funding Agreement.
(a) Prior to the execution of the Project
Funding Agreement, the Eligible Applicant shall:
1. comply with the requirements of
963
CMR 2.09(5) and all other
applicable site ownership, control, and use requirements;
2. demonstrate that the provisions of the
Massachusetts Environmental Protection Act (MEPA) have been complied with and
that the Eligible Applicant has filed an environmental notification form (ENF)
or that the Proposed Project does not require the filing of an environmental
notification form (ENF) in accordance with MEPA. In the case of a MEPA review
process that has not been completed, the Eligible Applicant shall describe the
status of the review process and provide a schedule for completion;
3. document to the Authority, the sources and
amounts of local funding which will be committed for the total project cost of
the Proposed Project; and
4.
identify any pending litigation or claims that implicate the Eligible
Applicant's authority or ability, in whole or in part, to fund, build, site, or
otherwise complete the Proposed Project. In the case of pending litigation or
claims, the Eligible Applicant shall describe the nature of each such matter,
the current status of each such matter, and, if publicly declared, the Eligible
Applicant's intention with respect to each such matter (e.g., to vigorously
contest, settle, or otherwise resolve the matter).
(b) In its sole discretion, the Authority may
defer execution of the Project Funding Agreement in the event of:
1. uncertainties concerning local
funding;
2. the pendency of
litigation, or other claims affecting the Eligible Applicant's authority or
ability, in whole or in part, to fund, build, site, or otherwise complete the
Proposed Project; or
3.
non-compliance with the requirements of
963
CMR 2.09(5) and all other
applicable site ownership, control, and use requirements.
(c) After the Eligible Applicant has acquired
local approval and funding in the format prescribed by the Authority and has
met the requirements set forth in the Project Funding Agreement, the Eligible
Applicant and the Authority may execute a Project Funding Agreement.
(d) The Project Funding Agreement shall
include, but not be limited to, the Total Facilities Grant, the site of the
project, the total project budget, a construction timeline, and the scope of
the Approved Project to be funded by said grant. The Authority shall not expend
any funds for any costs in excess of the Total Facilities Grant established in
the Project Funding Agreement. The Total Facilities Grant shall not include
funding for categorically ineligible costs established pursuant to M.G.L. c.
70B, 963 CMR 2.00 and guidelines issued by the Authority, additions to scope
beyond that agreed upon and outlined in the Project Scope and Budget Agreement,
or other costs which the Authority deems to be ineligible.
(2)
Total Facilities Grant
Awards.
(a) The Board may
annually award Total Facilities Grants within the amounts and at such times as
authorized by M.G.L. c. 70B, §§ 7, 10 and 11. Total Facilities Grants
shall be awarded to Approved Projects according to the terms, project
schedules, and conditions established in the Project Scope and Budget
Agreement, Project Funding Agreement or any other agreement, requirement,
contract, statement, certification or other document as may be required by the
Authority. The Authority reserves the right to rescind approval for Approved
Projects and to rescind and/or recapture all or a portion of a Total Facilities
Grant for said projects, which do not meet the requirements set forth in M.G.L.
c. 70B, 963 CMR 2.00 and/or any other agreement, requirement, contract,
statement, certification or other document as may be required by the
Authority.
(b) The Authority also
may rescind and recapture all or a portion of a Total Facilities Grant if there
is substantial evidence of illegality, corruption or fraud associated with the
Project, the audit process, noncompliance with the terms of the Project Scope
and Budget Agreement, the Project Funding Agreement or any other agreement,
contract, certification or other requirement of the Authority, or improprieties
with respect to expenditures of grant funds. The Authority may, in its sole
discretion, temporarily suspend a grant payment whenever the Authority becomes
aware of allegations, evidence or appearance of illegality, corruption, or
fraud associated with the Project or allegations of improprieties with respect
to the expenditure of grant funds.
(3)
Grant Percentage
Formula.
(a)
General.
1. The Total
Facilities Grant for an Approved Project shall be determined by the Authority
based on the grant percentage formula established pursuant to M.G.L. c. 70B,
§ 10, the Project Scope and Budget Agreement, and the cost of the Approved
Project as agreed to by the Eligible Applicant and the Authority in the Project
Funding Agreement.
2. In addition
to the base percentage, community income factor, community wealth factor and
community poverty factor for the most recent available year applicable to the
Eligible Applicant under the determinations made by the Authority, an Eligible
Applicant may seek incentive percentage points at the sole discretion of the
Authority. There is no entitlement to the allocation of any incentive
percentage points and the Authority reserves the right in its sole discretion
to determine the allocation of incentive percentage points for an Approved
Project, if any. Any Eligible Applicant seeking incentive points must notify
the Authority in writing prior to the Project Scope and Budget Conference of
the specific incentive points which are being requested and provide the
documentation to support such request. If at any time the Authority determines
that the Eligible Applicant has not met the eligibility requirements necessary
to receive the incentive percentage points, the Authority reserves the right to
rescind incentive percentage points and any grant amounts related to the
allocation of the incentive percentage points and recover any funds that may
have been paid to the Eligible Applicant.
3. No one category of incentive percentage
points that may be awarded by the Authority shall exceed six percentage
points.
4. In total, incentive
percentage points shall not exceed 18 percentage points for an Approved
Project.
5. The Authority, in its
sole discretion, may award incentive percentage points in fractional
amounts.
6. The Authority, in its
sole discretion, may award incentive points in accordance with its policies,
guidelines, and as set forth in
963
CMR 2.10(3)(b).
(b)
Incentive
Points.
1.
Overlay
Zoning District. The Authority, in its sole discretion, may
allocate up to one incentive percentage point (1%) for an Approved Project in a
community that has adopted an overlay zoning district pursuant to the
provisions of M.G.L. c. 40R or c. 40S. The Authority may allocate up to an
additional 1/2% for an Approved Project where the M.G.L. c. 40R overlay
zoning district provides for either 100 units or more of housing in one, two or
three family structures; or in which 50% or more of the total number of allowed
housing units in M.G.L. c.40R overlay zoning district are designated for such
structures. The Authority may establish guidelines for the distribution of
Overlay Zoning District incentive percentage points.
2.
Green Schools
Program.
a.
Energy
Efficiency. The Authority, in its sole discretion, may allocate up
to three incentive percentage points (3%) for an Approved Project where the
Authority makes a determination that elements of an Approved Project meet
thresholds established in the Green Schools Program Policies for the allocation
of Green School incentive points.
b.
Indoor Air
Quality. The Authority, in its sole discretion, may allocate up to
one incentive percentage point (1%) for an Approved Project where the Authority
makes a determination that the Approved Project meets thresholds established in
the Green Schools Program Policies.
3.
Routine and Capital
Maintenance Rating. The Authority, in its sole discretion, may
allocate up to two incentive percentage points (2%) for an Approved Project for
Routine and Capital Maintenance Ratings, based on the Authority's determination
that the Eligible Applicant has exhibited best practices for routine and
capital maintenance and upkeep of facilities, including the establishment of
long term capital improvement plans, the establishment of segregated local
funds dedicated for the capital maintenance of school facilities, the use of
facility maintenance manuals, and practices that standardize preventative and
routine maintenance procedures, or other practices as determined by the
Authority. An Eligible Applicant's maintenance practices may be reviewed at any
time and the information collected during any such review shall be used as part
of the assessment of incentive percentage points for routine and capital
maintenance ratings.
4.
Newly Formed Regional School District. The Authority,
in its sole discretion, may allocate up to six incentive percentage points (6%)
for an Approved Project if:
a. the Approved
Project is at the site of a school facility that is a member of a regional
school district, which regional school district either:
(i) was newly created as a result of working
with the Authority during the Application process; or
(ii) whose membership changed as a result of
working with the Authority during the Application process; and
b. the Authority determines that a
school facility construction, renovation, or repair project was avoided
directly as a result of either:
(i) a newly
created regional school district; or
(ii) a change in a regional school district's
membership.
c. Districts
that are not members of a regional school district, or that have not formed a
new regional school district or added new members, shall not be eligible for
these incentive points.
5.
Renovation or Reuse of an
Existing Facility. The Authority, in its sole discretion, may
allocate up to five incentive percentage points (5%) for an Approved Project if
the project is a renovation of an existing facility that requires no new
construction. The Authority may award an amount less than said five percent for
an Approved Project which has a combination of renovation of an existing
facility and the building of some additional square footage for new educational
space, based on a sliding scale that relates the percentage of renovated space
to the percentage of newly constructed space. The Authority shall not award any
incentive percentage points from this category for construction of a new school
facility.
(4)
Payment Requirements and Procedures.
(a) All Total Facilities Grants shall be paid
by the Authority in accordance with M.G.L. c. 70B, 963 CMR 2.00, the Progress
Payment Guidelines, the MSBA Audit Guidelines, the Project Funding Agreement,
and any other policies or guidelines of the Authority.
(b) The Authority shall not make payment of a
Total Facilities Grant, or any portion of a Total Facilities Grant, for an
Approved Project before the Project Funding Agreement has been properly
executed as determined by the Authority.
(c) The Authority shall only make payment of
a Total Facilities Grant for eligible costs, which shall be the final approved
costs of the Approved Project as determined by the Authority. The eligibility
of any costs shall be determined in each instance by the Authority.
(d) During construction of an Approved
Project, staff of the Authority may visit the construction site to assess
whether the Approved Project is being built as approved. Staff of the Authority
may review the monthly construction progress reports received pursuant to the
Project Funding Agreement.
(e)
Proposed change orders shall be reviewed by the Authority and the cost of any
proposed change orders which are not delineated in and/or exceed the provisions
of the Project Scope and Budget Agreement may be deemed ineligible by the
Authority.
(f) The Authority may
review and monitor the completed facility, in operation, to assess whether the
Approved Project has been maintained and operated as delivered. The Authority
shall not be responsible for any identified deficiencies pursuant to such
review.
(g) When contracting with
vendors, designers, Owner's Project Managers, contractors and subcontractors,
the Eligible Applicant shall use standard contracts developed by the Authority.
In any instance where a standard contract for a vendor, contractor or
subcontractor has not been developed by the Authority, the Authority may
require that it approve the contract to be used by the Eligible Applicant prior
to execution. Violations of the provisions of standard contracts and/or the
Project Funding Agreement may result in the Authority rescinding approval
and/or the Authority recapturing all or a portion of the Total Facilities
Grant, discontinuance of payments to the Eligible Applicant or the Authority
may seek to recover any payments that the Authority may have already made to
the Eligible Applicant for any project for which the Authority is making
payments to the Eligible Applicant.
(h) All construction contracts shall be in
conformity with applicable laws and regulations related to minority hiring.
Every Authority-assisted contract for a project including sub-contracts shall
include the Commonwealth's Supplemental Equal Employment
Opportunity/Anti-Discrimination and Affirmative Action Program as part of the
contract.
(i) Compliance with and
enforcement of all safety and building code provisions shall be the
responsibility of the Eligible Applicant.
(j) Every contractor and subcontractor
working under the terms of any contract for construction on an Approved Project
shall comply with applicable provisions of federal, state and local law and
regulations.
(k) Every contractor
and subcontractor working under the terms of any contract for construction on
an Approved Project shall file weekly payroll records with the Eligible
Applicant in the form described in M.G.L. c. 149, § 27B. The Eligible
Applicant may withhold payment for any construction work performed on an
Approved Project for as long as the payroll records for the work performed are
not filed with the Eligible Applicant.
(l) Each Eligible Applicant shall submit the
contractor and designer evaluations to the Division of Capital Asset Management
and Maintenance and the Authority in a form, manner and timeline prescribed in
M.G.L. c. 149, § 44D and M.G.L. c. 7C, § 48. Further, the Eligible
Applicant shall submit the Authority's Contractor and Designer Evaluation
Notification Forms to the Authority.
(5)
Alternative
Projects. When a facility is to be acquired as part of an Approved
Project, the value of such facility to be acquired by an Eligible Applicant
shall be determined by the Authority in accordance with the provisions of
M.G.L. c. 30B on the basis of the reports of at least two appraisers registered
with the Attorney General and retained by the Eligible Applicant. The final
approved cost of combined facility acquisition, renovation and conversion work
shall not exceed the equivalent costs of new construction, as determined by the
Authority.