963 CMR 2.10 - Application and Approval Procedures

Current through Register 1466, April 1, 2022

The Authority shall not accept any complete Application prior to July 1, 2007.

(1) Application Approval.
(a) The Authority shall approve Applications in accordance with 963 CMR 2.00, the priority criteria established in M.G. L. c. 70B, including but not limited to, M.G.L. c. 70B, §§ 6, 8, and 9(a), and other policies, requirements and guidelines as the Authority may determine are necessary for the approval of a Proposed Project. The Authority may rescind approval of an Approved Project at any time, and collect any funds it has paid an Eligible Applicant if the Eligible Applicant, or his agent, does not comply with the statutes, regulations, guidelines and/or policies of the Authority.
(b) The Authority shall not accept an Application or approve funding for any Proposed Project from an Eligible Applicant that, in the reasonable judgment of the Authority, is the result of negligence or a lack of routine maintenance.
(2) Initial Compliance Certification Process.
(a) The Authority shall not consider an Application if an Initial Compliance Certification has not been properly submitted to the Authority by the Eligible Applicant in the format developed by the Authority. The Eligible Applicant shall certify in the Initial Compliance Certification current and future compliance with the provisions of the rules, regulations, policies and procedures of the Authority.
(b) Any Eligible Applicant seeking funding from the Authority which has, prior to submitting any part of an Application to the Authority, sold, leased or otherwise removed from service any schoolhouse operated by said Eligible Applicant shall be eligible for such grant only if the Authority determines that the grant is not for the purpose of replacing a schoolhouse sold, leased, or otherwise removed from service in the past ten years or that the need for the Proposed Project covered by the grant could not have reasonably been anticipated at the time that such schoolhouse was sold, leased, or otherwise removed from service pursuant to M.G.L. c. 70B, § 15 (c).
(c) Pursuant to M.G.L. c. 70B, § 8, the Authority shall not approve any Proposed Project for any school district that fails to spend in the year preceding the year of application at least 50% of the sum of said school district's calculated foundation budget amounts for the purposes of foundation utility and ordinary maintenance expenses, and extraordinary maintenance allotment as defined in M.G.L. c.70, for said purposes. From Fiscal Year 1999 forward, no school district shall be given approval for a Proposed Project nor receive any funding from the Authority unless said district has spent at least 50% of the sum of said district's calculated foundation budget amounts in each of the Fiscal Years including and succeeding Fiscal Year 1999.
(3) School Building Committee.
(a) The Eligible Applicant shall formulate a school building committee for the purpose of generally monitoring the Application process and to advise the Eligible Applicant during the construction of an Approved Project.
(b) The school building committee shall be formed in accordance with the provisions of the Eligible Applicant's local charter and/or by-laws and it is recommended that the city, town, regional school district, or independent agricultural and technical school make a reasonable effort to include one or more of the following individuals: the local chief executive officer of the Eligible Applicant, or, in the case of a town whose local chief executive officer is a multiparty body, said body may elect one of its members to serve on the school building committee; the town administrator, town manager, or city manager, where applicable; at least one member of the school committee, as required by M.G.L. c. 71, § 68; the superintendent of schools; the local official responsible for building maintenance; a representative of the office or body authorized by law to construct school buildings in that city, town or regional school district, or for that independent agricultural and technical school; the school principal from the subject school; a member who has knowledge of the educational mission and function of the facility; a local budget official or member of the local finance committee; members of the community with architecture, engineering and/or construction experience to provide advice relative to the effect of the Proposed Project on the community and to examine building design and construction in terms of its constructability.
(c) The Authority may hold "best practices" information sessions at varying geographic locations in the Commonwealth for the purposes of keeping school building committees up to date on regulatory and policy activities of the Authority.
(d) The Eligible Applicant shall submit to the Authority for its approval, a written statement describing the composition of the school building committee and the role of the school building committee in monitoring the Application process and advising the Eligible Applicant during the construction of the Approved Project. The written statement shall be in a format prescribed by the Authority.
(e) The Authority shall approve the composition and role of the school building committee which approval shall not be unreasonably withheld. The Authority's approval will be based on several factors, including, but not limited to:
1. past performance of the school building committee, the building committee, whether temporary or permanent, or any other committee responsible for the oversight, management, or administration of the construction of public buildings, the composition of the school building committee and qualifications of its individual members, the powers and duties of the school building committee; and the school building committee's procedures for conducting its meetings; and
2. the extent to which there is representation of the municipal government, school district personnel with management, educational and maintenance expertise, and representation of members of the local community with design and construction experience. After the approval of the school building committee by the Authority, if any, the Eligible Applicant shall notify the Authority in writing within 20 calendar days of any changes to the membership or the duties of said committee. The Eligible Applicant shall make a reasonable effort to ensure the continuity of membership of the school building committee throughout the life of an Approved Project.
(f) The Eligible Applicant shall not delegate their fiduciary responsibilities to the School Building Committee.
(4) Design and Educational Program and Budget Statement for Educational Objectives.
(a) If the Authority determines that the Proposed Project has been deemed to merit further consideration, the Authority may require that an Eligible Applicant submit, in the format prescribed by the Authority, a Design and Educational Program, and a Budget Statement for Educational Objectives. The Eligible Applicant shall outline the specific educational program goals for a Proposed Project and how the Eligible Applicant proposes to align those goals with the operating budget for the District and Proposed Project.
(b) The following spaces shall be categorically ineligible for Authority funding: swimming pools, skating rinks, field houses (only to the same extent as gymnasia), district administrative office space, indoor tennis courts, and other spaces which may be determined ineligible by the Authority.
(c) The Design and Educational Program shall be subject to the approval of the Authority. The Authority may provide, when in the discretion of the Authority it is necessary, technical assistance to the Eligible Applicant with the development of Design and Educational Program elements. The Authority shall review the Budget Statement for Educational Objectives in the context of the Design and Educational Program, and the Authority may consult the Division of Local Services at the Massachusetts Department of Revenue. The Authority may require that the Eligible Applicant make changes, adjustments or modifications to the Design and Educational Program or the Budget Statement for Educational Objectives in order to receive approval from the Authority.
(d) After approval of the Design and Educational Program by the Authority, the Eligible Applicant shall certify to the Authority, in the manner prescribed by the Authority, that the local school committee has voted to approve the Design and Educational Program and the Budget Statement for Educational Objectives in a manner prescribed by the Authority and provide the Authority with a copy of the local school committee vote.
(5) Educational Facilities Master Plan.
(a) An Eligible Applicant shall have a current educational facilities master plan that includes both a long term and a short term plan for facilities and an updated building inventory, in accordance with the Educational Facility Master Plan Guidelines established by the Authority.
(b) If the Authority determines that a Proposed Project deems to merit further consideration, the Authority may require that an Eligible Applicant submit an educational facilities master plan, as defined and in the format prescribed by the Authority.
(6) Facilities Assessment.
(a) The Authority may determine that a Facilities Assessment is necessary to understand the extent of deficiencies outlined in the Statement of Interest. The Authority, in cooperation with the Eligible Applicant, may conduct a Facilities Assessment of the facility addressed in the Statement of Interest or any facilities relevant to the facility addressed in the Statement of Interest, as determined by the Authority.
(b) The Facilities Assessment, if any, shall be conducted by the Authority in a format and manner prescribed by the Authority and the Authority shall pay for the costs of conducting such Facilities Assessment, provided that the Eligible Applicant fully cooperates with the Authority in conducting such Facilities Assessment. The Eligible Applicant shall provide complete access to its school facilities for purposes of conducting a Facilities Assessment. In the event that the Eligible Applicant does not cooperate with the Authority in conducting a Facilities Assessment, which, in the reasonable judgment of the Authority results in a delay of the Facilities Assessment or a delay in the Application process, the Authority may decline further consideration of the Eligible Applicant's Application, require that the Eligible Applicant pay for all or a portion of said Assessment, and/or deduct a portion or all of the cost of the Facilities Assessment from any Total Facilities Grant for which the Eligible Applicant may receive approval from the Authority or from any other funds provided to the Eligible Applicant from the Authority.
(c) The Facilities Assessment shall include an assessment of the Eligible Applicant's maintenance process and a review of the maintenance practices and procedures in place at the school and district level. Such maintenance review shall be conducted in a format and manner prescribed by the Authority and the information collected at this time shall be used as part of the assessment of incentive percentage points for maintenance ratings, if any, that may be made available by the Authority to an Eligible Applicant pursuant to M.G.L c. 70B, § 10.
(d) At the conclusion of such Assessment, the Authority may determine that the Application does not warrant further consideration at that time, pursuant to the priority criteria established in M.G.L. c. 70B, including but not limited to M.G.L. c. 70B, §§ 6, 8, and 9(a).
(e) The Authority shall bear no responsibility for a decision not to undertake a Facilities Assessment or the results of any Facilities Assessment undertaken. In the event that the Authority decides to conduct a Facilities Assessment, the conducting of said Assessment shall in no way be construed, interpreted or deemed to imply any responsibility on the part of the Authority for the results of said Assessment, nor shall the Authority assume any duty or responsibility with respect to the maintenance, renovation, repair, or construction of any school facility that may be assessed.
(7) Pre-study Review Meeting.
(a) If an Eligible Applicant has properly submitted the:
1. Statement of Interest;
2. the Initial Compliance Certification;
3. the Design and Educational Program;
4. the Budget Statement for Educational Objectives;
5. a copy of the educational facilities master plan; and
6. any other materials which the Authority may require and a Facilities Assessment by the Authority has been completed, if applicable, the Authority and the Eligible Applicant shall meet jointly to discuss the facility deficiencies as identified by the Eligible Applicant in the Statement of Interest and to discuss any further action in which the Authority may participate. The Eligible Applicant, or his agent, shall invite members of the public to attend said meeting and said meeting shall be at a location and in a format determined by the Authority, however, the provisions of M.G.L. c. 30A, § 11A½ and M.G.L. c. 39, § 23b shall not apply. The Pre-study Review Meeting may be attended by representatives of the Eligible Applicant including, but not limited to: one or more representatives of the school committee, one or more members of the building committee, where applicable, a representative of the office or body authorized by law to construct school buildings in that city, town or regional school district, or for the independent agricultural and technical school, the superintendent of schools or his designee, other local officials or representatives at the discretion of the Authority.
(b) After the Pre-study Review Meeting, the Authority may determine that the Application does not warrant further consideration at that time, pursuant to the priority criteria established in M.G.L. c. 70B, including but not limited to M.G.L. c. 70B, §§ 6, 8, and 9(a).
(c) If the Authority determines that a Pre-study Review Meeting has been held to the Authority's satisfaction and the Authority determines that the Application warrants further consideration, the Authority may require that a Feasibility Study be conducted.
(8) Feasibility Study.
(a) The Authority may determine that a Feasibility Study is necessary to understand the extent of deficiencies identified in the Statement of Interest or the Facilities Assessment, if one was performed, and to begin to explore the formulation of a solution to those deficiencies as outlined in the Eligible Applicant's Statement of Interest. The Authority may require the Eligible Applicant to conduct a Feasibility Study of the facility addressed in the Statement of Interest and/or any other facilities relevant to the facility addressed in the Statement of Interest. The Design and Educational Program reviewed and approved by the Authority in the Pre-study Review Meeting shall, in part, provide the criteria for the scope of the Feasibility Study.
(b) The Feasibility Study shall be performed at a time and in a format and manner prescribed by the Authority and the Authority may reimburse the Eligible Applicant for a portion of the costs of conducting such Feasibility Study, provided that the Eligible Applicant fully cooperates with the Authority in conducting such Feasibility Study. Feasibility Studies conducted unilaterally by the Eligible Applicant, or without the prior written acknowledgement and concurrence of the Authority, or in a manner or format not acceptable to the Authority, or that, in the discretion of the Authority, do not contain the required information or were not conducted in a manner and format consistent with guidelines developed by the Authority, may, in the sole discretion of the Authority, be nonreimbursable and will be entirely at the expense of the Eligible Applicant and the results of any such Feasibility Study may not be accepted by the Authority, all in its sole discretion. The Eligible Applicant shall provide complete access to its school facilities for purposes of conducting a Feasibility Study. In the event that the Eligible Applicant does not cooperate with the Authority in conducting a Feasibility Study, which, in the reasonable judgment of the Authority results in a delay of the Feasibility Study or a delay in the application process, or conducts a Feasibility Study that is unacceptable to the Authority, the Authority may decline further consideration of the Eligible Applicant's Application, decline to reimburse the Eligible Applicant for any costs associated with the Feasibility Study and/or deduct a portion or all of the cost of the Feasibility Study from any Total Facilities Grant which the Eligible Applicant may receive approval from the Authority or from any other funds provided to the Eligible Applicant from the Authority. The Authority reserves the right to require an Eligible Applicant to revise a Feasibility Study, or conduct a new Feasibility Study.
(c) The Eligible Applicant shall submit to the Authority progress reports, draft copies, documentation and/or other information on the Feasibility Study at predetermined benchmarks while said Study is being conducted.
(d) The purpose of the Feasibility Study is to investigate potential options and solutions, including cost estimates in a format prescribed by the Authority, for the deficiencies and issues identified in the Facilities Assessment, if any assessment was performed, the Design and Educational Program, the Educational Facilities Master Plan, the Enrollment Projection, and in the properly submitted Statement of Interest by an Eligible Applicant. The Feasibility Study shall be conducted in accordance with the guidelines established by the Authority. Said guidelines may require Authority participation in the execution the Feasibility Study as well as include multiple steps requiring Authority approval at the conclusion of each step.
(e) The Feasibility Study shall include, but not be limited to:
1. an examination and identification of potential alternatives to construction or renovation of a facility whether or not such alternatives are eligible for Authority reimbursement;
2. one of the alternatives shall be an analysis of a no-build or status quo option, to be used as a benchmark for comparative analysis of all other alternatives;
3. an analysis of school district student school assignment practices and an analysis of available space in other school facilities in the district;
4. the utilization of under-utilized or vacant facilities potentially available for the proposed use for the Proposed Project;
5. the lease, rental or acquisition of existing buildings that could be made available for school use pursuant to M.G.L. c. 70B, § 8;
6. the use of regionalizing or tuition agreements with adjacent school districts pursuant to M.G.L. c. 70B, § 8;
7. a detailed and itemized cost estimate for each alternative;
8. an evaluation of the environmental and cost impact of construction phasing on students and staff occupying a renovated building, and any relocation options or off-hour construction that may be required for each alternative;
9. an evaluation of the existing conditions at no more than three sites, unless otherwise determined by the Authority, that shall include, but not be limited to, a geotechnical evaluation and soils exploration, a Phase I Initial Site Investigation conforming to 310 CMR 40.00, performed by a licensed site professional.

Unless otherwise required by law or regulation, the Authority may require, at its sole discretion, subsequent environmental testing be performed at a site agreed upon by the Authority and the Eligible Applicant. Said subsequent environmental testing shall, when required or appropriate, include the regulatory authority or authorities having jurisdiction or be in accordance with the requirements of said appropriate regulatory authority or authorities.

(f) The Feasibility Study shall include a review of the District's operational and capital budget and said review shall include, but not be limited to:
1. a review and analysis of the Budget Statement for Educational Objectives;
2. a review and analysis of the District's operating and capital budget;
3. an analysis of the ability of the District to support the operating and capital costs of each alternative, including the increased costs of instructional, utilities, maintenance and transportation support and any debt service associated with each alternative, which may be in addition to costs already being incurred.

The Study shall include a plan for each alternative studied showing how the district intends to fund all costs associated with that alternative. Said review and analysis shall be in format determined by the Authority.

(g) The Authority, in its sole discretion, may share in a portion of the costs associated with the Feasibility Study provided that the Eligible Applicant has cooperated in all aspects of the Study and the Application process. The Authority reserves the right to approve all costs associated with any Feasibility Study for which an Eligible Applicant is seeking reimbursement from the Authority and no Eligible Applicant shall enter into a contract for the provision of services related to the Feasibility Study without prior written approval from the Authority. The Eligible Applicant shall use the standard contracts developed by the Authority. In the event that the Authority decides to share in a portion of the costs associated with the Feasibility Study, the Authority shall calculate its share of approved costs of the Feasibility Study using the formula set forth in M.G.L. c. 70B, § 10 (a), except that no incentive percentage points, as described in M.G.L. c. 70B, § 10 (a)(C), shall be awarded in connection with the Feasibility Study.
(h) In the event that the Authority determines there are extraordinary or non-customary costs that are not warranted, the Authority may require the Eligible Applicant to fund all said extraordinary or non-customary costs and the Authority may determine that all costs associated with the Feasibility Study are non-reimbursable and that the Eligible Applicant fund all costs associated with the Feasibility Study.
(i) The Authority may require the Eligible Applicant to fully fund certain environmental or geotechnical site testing costs beyond initial investigatory costs.
(j) The Eligible Applicant shall provide the Authority with the results of environmental assessment or assessments, if any, which the Eligible Applicant shall also make available for public review and shall provide a reasonable opportunity for public comment thereon. The Eligible Applicant shall submit to the Authority a summary of the public comments, in a format determined by the Authority, prior to the Project Scope and Budget Conference.
(k) The Authority shall bear no responsibility for the results of any Feasibility Study, environmental assessment, geotechnical site testing, nor for any site remediation, clean-up or other site remediation services. By requiring an Eligible Applicant to undertake a Feasibility Study, the Authority is in no way assuming any duty to ensure that a site of a Project is not contaminated or environmentally unsafe. Nothing stated herein shall preclude an Eligible Applicant from holding public forums, meetings, or discussions regarding any elements of an application or project.
(l) The final Feasibility Study Report shall be in the format prescribed by the Authority and shall include, but not be limited to, a detailed scope of the Proposed Project, architectural and site drawings as required to convey a successful organization of spaces that will satisfy the special and organizational requirements of the approved Design and Educational Program, a description of the major building construction systems which are proposed for the Proposed Project, a budget cost estimate using the Uniformat II Elemental Classification format (Level 3) in as much detail as determined by the Authority, a projected cash-flow, permitting requirements, a proposed project design and construction schedule including consideration of phasing of the Proposed Project, sustainable design goals including minimization of environmental and transportation impacts, and ways the Proposed Project can meet those goals, and elements of construction or demolition waste that would be recyclable.
(m) At the conclusion of the Feasibility Study, the Authority may determine that the Application does not warrant further consideration at that time, pursuant to the priority criteria established in M.G.L. c. 70B, including but not limited to M.G.L. c. 70B, §§ 6, 8, and 9(a).
(9) Project Scope and Budget Conference. After completion of a Facilities Assessment, if any, and Feasibility Study, if authorized and approved by the Authority, the Authority may invite the local chief executive officer, Chair and or members of the school committee, the Chair and or members of the school building committee, the superintendent of the Eligible Applicant's school district, a representative from the office or body that is authorized by law to construct a school building or undertake a school capital project in that city, town or regional school district, and other local officials as required by the Authority, to meet with authorized representatives of the Authority to discuss proposed solutions to the issues identified through the Statement of Interest, verified by the Facilities Assessment, if any, and analyzed in the Feasibility Study. The Eligible Applicant, or his agent, shall invite members of the public to attend said meeting and said meeting shall be at a location and in a format determined by the Authority, however, the provisions of M.G.L. c. 30A, § 11A½ and M.G.L. c. 39, § 23b shall not apply. No Proposed Project shall receive approval or funding from the Authority unless a Project Scope and Budget Conference is held to the reasonable satisfaction of the Authority, unless the Authority determines in writing that a Project Scope and Budget Conference is not required.
(10) Project Scope and Budget Agreement.
(a) A Project Scope and Budget Agreement, in the format and manner prescribed by the Authority, shall be executed by the Eligible Applicant and the Authority. Such Agreement shall include, but not be limited to:
1. the Authority specifying the remaining actions to be taken by the Authority including the date of an upcoming Board vote on the Proposed Project as detailed in the Project Scope and Budget Agreement and the identification of an initial minimum and maximum potential reimbursement rate from the Authority based on the grant percentage formula established pursuant to M.G.L. c. 70B § 10;
2. the Authority specifying the remaining actions to be taken by the Eligible Applicant, including but not limited to, confirmation of a date certain by which the Eligible Applicant shall receive the necessary local approvals for the Proposed Project;
3. a detailed project scope, including the educational space requirements for the Proposed Project and the preliminary plans and specifications;
4. an itemized total project budget for the Proposed Project which shall include a delineation of all costs, including but not limited to, a project construction budget;
5. a projected cash flow;
6. a detailed description of the site of Proposed Project;
7. a timeline for project phasing from design through construction document development up to the acceptance of project bids, which timeline in the case of a Construction Manager at Risk project, shall reflect project phasing including design, selection of a Construction Manager at Risk, negotiation of a guaranteed maximum price, acceptance of trade contractor bids, and a construction schedule through project occupancy, an estimated timeline from the bid date acceptances and a construction schedule through project occupancy which shall be agreed upon by the Eligible Applicant and the Authority;
8. a complete listing to the satisfaction of the Authority of all furniture, fixtures and equipment that will be purchased for the Approved Project; and
9. any other information that the Authority may require.
(b) After the execution of a Project Scope and Budget Agreement the Proposed Project will be submitted to the Board for approval. No Proposed Project will be presented to the Board unless the Authority and the Eligible Applicant have executed a Project Scope and Budget Agreement.
(c) An executed Project Scope and Budget Agreement is valid for a period of time not to exceed 120 calendar days after the Agreement has been approved by a vote of the Board, unless agreed to in writing at such vote of the Board that a different date is necessary to accommodate local meeting schedules. During said 120 calendar day period, the Eligible Applicant shall acquire and certify local approval for an appropriation and all other necessary local votes or approvals showing acceptance of the cost, site, type and scope, and timeline for the Proposed Project. Said local votes or approvals shall be in the format prescribed by the Authority. If the timelines established by the Project Scope and Budget Agreement are not met by the Eligible Applicant, or if the Eligible Applicant fails to obtain the necessary local approvals, the Authority reserves the right to rescind the offer of a Total Facilities Grant to the Eligible Applicant for the Proposed Project.
(11) Project Funding Agreement.
(a) After the Eligible Applicant has acquired local approval in the format prescribed by the Authority, the Eligible Applicant and the Authority shall execute a Project Funding Agreement within 14 calendar days of said local approval. The Eligible Applicant shall document to the Authority the sources and amounts of local funding which will be committed for the Eligible Applicant's share of the Approved Project cost. If the Eligible Applicant does not sign the Project Funding Agreement within said 14 day time period, then the Board vote for approval of the Proposed Project shall be rescinded.
(b) 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 time line, 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.

Notes

963 CMR 2.10

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