Section 2.10 - Funding the Project - Module 5(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; and4. 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; or3. 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 ½% 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; andb. 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.Amended by Mass Register Issue 1521, eff. 5/10/2024.