Bill H.4017

HOUSE DOCKET, NO. 1519 FILED ON: 1/18/2023

HOUSE . . . . . . . . . . . . . . . No. 4017

By Representatives Duffy of Holyoke and Domb of Amherst, a petition (accompanied by bill, House, No. 4017) of Patricia A. Duffy and Mindy Domb for legislation to establish a public higher education facilities modernization and reconstruction trust fund with certain dedicated sales tax revenue. Revenue.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act to support higher education infrastructure.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 10 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by inserting after section 35SSS the following section:-

Section 35TTT. (a) As used in this section, the following words shall, unless the context requires otherwise, have the following meanings:-

“Authority”, the Massachusetts public higher education facilities authority established in section 1 of chapter 79.

“Dedicated sales tax revenue amount”, all moneys received by the commonwealth equal to 1 per cent of the receipts from sales, as defined by chapter 64H, and 1 per cent of the sales price of purchases, as defined by chapter 64I, from that portion of the taxes imposed under said chapters 64H and 64I as excises upon the sale and use at retail of tangible property or of services, and upon the storage, use or other consumption of tangible property or of services, including interest thereon or penalties, but not including any portion of the taxes that constitute special receipts within the meaning of subsection (b ½ ) of section 10 of chapter 152 of the acts of 1997 or within the meaning of said subsection (b ½ ) of said section 10 of said chapter 152 or any portion of the taxes imposed on the sale of meals as defined in paragraph (h) of section 6 of said chapter 64H.

“Receipts from sales”, gross receipts from nonexempt sales, less amounts abated or reimbursed.

“Sales price of purchases”, sales price of nonexempt purchases, less amounts abated or reimbursed.

(b) There shall be established on the books of the commonwealth a separate fund, to be known as the Public Higher Education Facilities Modernization and Reconstruction Trust Fund. There shall be credited to the fund the dedicated sales tax revenue amount. Annual receipts into the fund on account of any fiscal year shall be considered to meet the full obligation of the commonwealth to the authority for such fiscal year.

(c) Amounts in the fund shall be held by the state treasurer or a designee, as trustee and not on account of the commonwealth, exclusively for the purposes of the authority, and the state treasurer shall disburse amounts in the fund to the authority, without further appropriation, upon the request from time to time of the executive director of the authority. All amounts in the fund, including investment earnings, shall be available for expenditure by the authority for any lawful purpose, including without limitation payment of debt service on debt obligations issued by the authority, and may be pledged to secure debt of the authority in such manner and according to such priority as the authority may determine.

(d) The authority shall certify annually to the treasurer as trustee with copies provided to the clerks of the house and senate and to the house and senate committees on ways and means that it has made provision in its annual budget and its capital plan under section 18 of chapter 79 for sufficient amounts to be available to meet debt service payments or other payments due under financing obligations, including, without limitation, leases or grant obligations.

(e) Subject to applicable restrictions contained in any bond resolution, trust or security agreement or credit enhancement agreement, surety bond or insurance policy related to indebtedness incurred by the authority, including without limitation coverage requirements, if the authority shall determine that the balance of the fund exceeds the amount necessary to achieve the purposes of the authority, including, without limitation, to meet debt service payments, lease payments and grant obligations, the authority may transfer the excess amount to the commonwealth.

(f) In order to increase the marketability of any bonds or notes of the trust, which may be secured by or payable from amounts held in the fund, the sums to be credited to the fund are hereby impressed with a trust for the benefit of the trust and the holders from time to time of the bonds or notes, and in consideration of the acceptance of payment for the bonds or notes, the commonwealth covenants with the purchasers and all subsequent holders and transferees of the bonds or notes that while the bond or note shall remain outstanding, and so long as the principal of or interest on the bond or note shall remain unpaid, the sums to be credited to the fund shall not be diverted from the control of the trust and, so long as the sums are necessary, as determined by the authority in accordance with any applicable bond resolution, trust or security agreement or credit enhancement agreement, surety bond or insurance policy related to indebtedness incurred by the trust, for the purposes for which they have been pledged, the rates of the excises imposed by said chapters 64H and 64I shall not be reduced below the rates prescribed by this section.

SECTION 2. The General Laws are hereby amended by inserting after chapter 78 the following chapter:-

Chapter 79.

PUBLIC HIGHER EDUCATION BUILDING AUTHORITY

Section 1. (a) There is hereby created a body politic and corporate and a public instrumentality to be known as the Massachusetts public higher education facilities authority, which shall be an independent public authority not subject to the supervision and control of any other executive office, department, commission, board, bureau, agency or political subdivision of the commonwealth except as specifically provided in any general or special law. The exercise by the authority of the powers conferred by this chapter shall be considered to be the performance of an essential public function.

(b) The authority shall consist of the state treasurer, who shall serve as chairperson, the secretary of administration and finance, the commissioner of education, the commissioner of higher education and 4 additional members appointed by the state treasurer, 2 of whom shall have practical experience in higher education facilities planning, higher education building construction or architecture and higher education building design, and 2 of whom shall be persons in the field of higher education with demonstrated knowledge of relevant federal and state standards for higher education, each of whom shall serve a term of 2 years; provided, however, that a person appointed to fill a vacancy shall serve only for the length of the unexpired term. An appointed member of the authority shall be eligible for reappointment. The authority shall annually elect 1 of its members to serve as vice-chairperson. Each member of the authority serving ex officio may appoint a designee pursuant to section 6A of chapter 30.

(c) Four members of the authority shall constitute a quorum and the affirmative vote of 4 members of the authority shall be necessary and sufficient for any action taken by the authority. No vacancy in the membership of the authority shall impair the right of a quorum to exercise all the rights and duties of the authority. Members shall serve without pay but shall be reimbursed for actual expenses necessarily incurred in the performance of their duties. The chairperson of the authority shall report to the governor and to the General Court annually to assist the executive and legislative branches in coordinating educational, community development and fiscal policies of the commonwealth.

(d) Any action of the authority may take effect immediately and need not be published or posted unless otherwise provided by law. Meetings of the authority shall be subject to section 11A ½ of chapter 30A; provided, however, that said section 11A ½ shall not apply to any meeting of members of the authority serving ex officio in the exercise of their duties as officers of the commonwealth so long as no matters relating to the official business of the authority are discussed and decided at the meeting. The authority shall be subject to all other provisions of said chapter 30A and records pertaining to the administration of the authority shall be subject to section 42 of chapter 30 and section 10 of chapter 66. All moneys of the authority shall be considered to be public funds for purposes of chapter 12A. The operations of the authority shall be subject to chapter 268A and chapter 268B and all other operational or administrative standards or requirements to the same extent as the office of the state treasurer.

Section 2. For the purposes of this chapter, the following terms shall, unless the context requires otherwise, have the following meanings:-

“Additional Revenues”, any moneys that are not defined as the dedicated sales tax revenue amount that are appropriated, gifted, granted, pledged or otherwise made available to the authority by the commonwealth, any local governmental entity, the federal government, not-for- profit organizations, for-profit organizations or private individuals.

“Advisory board”, the public higher education building advisory board.

“Alternatives to construction”, approved higher education facilities projects that do not include capital construction, major reconstruction or building renovation; provided, that no alternative project shall be reimbursed if it is determined by the authority to be more costly than construction necessary to achieve the same end.

“Approved higher education building project”, a higher education building project approved by the authority.

“Assisted facility”, a public higher education facility that has received a total facilities grant pursuant to this chapter.

“Authority”, the Massachusetts higher education facilities authority.

“Capital construction project”, any capital project, other than a major reconstruction project, for the construction, enlargement or original equipping of any public higher education facility, a project for the renovation or partial renovation of an existing structure for use as public higher education facility or the renovation or partial renovation of an existing public higher education facility.

“Construction manager”, a construction manager as defined by section 38A ½ of chapter 7.

“Dedicated sales tax revenue amount”, all moneys received by the commonwealth equal to 1 per cent of the receipts from sales, as defined by chapter 64H, and 1 per cent of the sales price of purchases, as defined by chapter 64I, from that portion of the taxes imposed under chapters 64H and 64I as excises upon the sale and use at retail of tangible property or of services, and upon the storage, use or other consumption of tangible property or of services, including interest thereon or penalties, but not including any portion of the taxes that constitute special receipts within the meaning of subsection (b) of section 10 of chapter 152 of the acts of 1997 or any portion of the taxes imposed on the sale of meals as defined in paragraph (h) of section 6 of chapter 64H.

“Eligible applicant”, a public higher education institution located within the commonwealth.

“Energy efficient construction rating”, rating given to eligible applicants by the authority based upon a determination that the construction techniques of an approved higher education project meet or exceed energy efficiency standards established by the board of building regulations and the National Institute of Standards and Technology and which meet the purposes of subsection (c) of section 9 of chapter 23J.

“Innovative community use”, approved public higher education facilities projects that combine community resources to streamline the costs of the facilities project and utilize other funding sources for the facilities project.

“Maintenance rating”, rating given to the public higher education institutions by the authority, based on a maintenance assessment conducted by the authority.

“Major reconstruction project”, any capital public higher education facilities or extraordinary maintenance project including, but not limited to, the retrofitting of a public higher education facility for the purpose of providing wireless or other learning technologies, the replacement of a roof or heating plant if it is determined by the board that such project has not been necessitated, in whole or in part, by the failure of an eligible applicant to make adequate and prudent provisions for the care and maintenance of said public higher education facility.

“Nonstate fundraising”, third party monies made available to the eligible applicant for approved public higher education facilities projects including, but not limited to, private donations and federal grants.

“Program”, the public higher education facilities assistance program.

“Project manager”, a person designated or assigned by an eligible applicant, and approved by the authority, to manage and coordinate daily administration of a public higher education facility or building project to completion including, but not limited to, a public higher education institution staff person or a volunteer with appropriate experience and expertise.

“Prototypical public higher education facilities plans”, public higher education facilities project architectural designs and plans collected and maintained by the authority for consultation by eligible applicants.

“Public higher education facility”, any real property required or useful for the operation of a public higher education institution.

“Public higher education facility project”, any capital construction or major reconstruction projects; the lease of buildings or modular facilities; arrangements with nonprofit or municipal entities; and other public higher education facilities projects.

“Public higher education institution”, any higher education institution that is a part of the public institution of higher education system established in section 5 of chapter 15A.

“Total facilities grant”, the total grant with respect to an approved public higher education facilities project and which is calculated as follows: In the case of a grant for an approved project of a public higher education institution, the total facilities grant shall be the product of multiplying the final approved costs of such project, including costs referred to in section 4, by the reimbursement percentage determined pursuant to section 10 for the year in which the project is approved.

“Trust”, the Public Higher Education Facilities Modernization and Reconstruction Trust, established by section 35TTT of chapter 10.

Section 3. (a) There is hereby established a public higher education facilities assistance program. The purpose of the program is generally to encourage and foster the thoughtful establishment and maintenance of public higher education facilities in the commonwealth, to conduct surveys and studies relative thereto and to administer the provisions of this chapter relative to grants and loans to public higher education institutions for the planning and construction of public higher education facility projects.

The purpose of the program shall be the provision of financial assistance to public higher education institutions as beneficiaries of the trust to finance and refinance the costs of approved higher education facilities projects as provided in, and as necessary to implement, this chapter including, without limitation, providing for the payment of grants approved pursuant to this chapter and the payment of all costs of the authority, including professional and financial services incident to the conduct of its operations.

(b) The authority shall establish general policy and review standards regarding public higher education facilities construction, renovation and maintenance and administer the program in accordance with this chapter. In carrying out its duties, the authority shall be guided by the following principles: preservation of open space and minimization of loss of such open space, emphasis on thoughtful community development and project flexibility that addresses the needs of individual communities and municipalities. In accordance with the terms of any bond resolution, trust or security agreement or credit enhancement agreement, surety bond or insurance policy related to indebtedness incurred by the authority secured by amounts provided to the trust in accordance with section 35BB of chapter 10, the holders of indebtedness and the providers of any credit enhancement, surety bond or insurance policy shall also be beneficiaries of the trust. The authority shall apply and disburse moneys and revenues of the trust without further appropriation or allotment.

(c) The authority shall establish general policy and review standards regarding school building construction, renovation, maintenance and facility space, administer the program in accordance with this chapter and coordinate the distribution of public higher education facilities grants in accordance with this chapter. The board shall be responsible for the oversight and management of the program as established herein. In carrying out its duties, the authority shall be guided by the following principles: preservation of open space and minimization of loss of such open space, emphasis on thoughtful community development and project flexibility that addresses the needs of individual communities and municipalities.

The authority may:

(i) review, approve or deny grant applications, waivers and other requests submitted to the program, review, approve and recommend changes to grant payment schedules or suspend said schedules for program projects such as refinancing, audit findings and any other circumstances that may warrant such action;

(ii) provide architectural or other technical advice and assistance, training and education, to public higher education facilities and to general contractors, subcontractors, construction or project managers, designers and others in the planning, maintenance and establishment of public higher education facilities;

(iii) recommend to the general court such legislation as it may deem desirable or necessary to further the purposes of this chapter;

(iv) develop a formal enrollment projection model or consider using projection models already available;

(v) apply for, receive, administer and comply with the conditions and requirements respecting any grant, gift or appropriation of property, services or moneys;

(vi) enter into contracts, arrangements and agreements with other persons and execute and deliver all trust agreements, grant agreements and other instruments necessary or convenient to the exercise of the powers of the trust;

(vii) borrow and repay money by issuing bonds or notes of the trust to apply the proceeds thereof as provided in this chapter and to pledge or assign or create security interests in any revenues, receipts or other assets or funds of the trust to secure bonds or notes;

(viii) develop a project priority system;

(ix) collect and maintain a clearinghouse of prototypical public higher education facilities plans which may be consulted by eligible applicants;

(x) determine eligibility of cost components of projects for reimbursement, including partial or full eligibility for project components;

(xi) establish appropriate rules and regulations as may be necessary to carry out the purposes of this chapter including a formula for the calculation of the amount of public higher education facilities grants awarded pursuant to this chapter;

(xii) prepare an annual budget for the administration of the program;

(xiv) collect and maintain data on all the public higher education facilities in the commonwealth, including information on size, usage, enrollment, available facility space and maintenance;

(xv) perform or commission a needs survey to ascertain the capital construction, reconstruction, maintenance and other capital needs for higher education facilities in the commonwealth;

(xvi) develop a long term capital plan in accordance with needs and projected funding;

(xvii) adopt and amend bylaws and rules, regulations and procedures for the conduct of the business of the trust as the board shall deem necessary to carry out the provisions of this chapter;

(xviii) establish and maintain reserves;

(xix) disburse amounts due to public higher education institutions under grants approved by the authority to finance or refinance costs of approved public higher education facilities projects and through the purchase of bonds or notes , at the rates and on the terms that the authority may in its discretion determine, and provide for the payment of all costs of the authority, including professional and financial services incident to the conduct of its operations;

(xx) invest the funds of the trust in such investments as may be legal investments for funds of the commonwealth or any fiduciary in the commonwealth;

(xxi) obtain insurance and enter into agreements of indemnification necessary or convenient to the exercise of the powers of the trust;

(xxii) sue and be sued and prosecute and defend actions relating to the affairs of the trust; provided, however, that the trust shall not be authorized to become a debtor under the United States Bankruptcy Code;

(xxiii) engage accounting, management, legal, financial, consulting and other professional services necessary to the operations of the trust; and

(xxiv) do all things necessary or convenient to carry out the purposes of this chapter.

(d) The chairperson of the authority shall appoint an executive director, who shall supervise the administrative affairs and general management and operations of the authority and who shall also serve as secretary of the authority, ex officio. The executive director shall receive a salary commensurate with the duties of the office, and may be removed by the board for cause. The executive director may appoint other officers of the authority necessary to the functioning of the authority. The executive director shall designate no fewer than 1 employee to be a municipal liaison to assist cities and towns with concerns regarding the construction of schools. Sections 9A, 45, 46, and 46C of chapter 30, chapter 31 and chapter 150E shall not apply to the executive director or any other employees of the authority. The executive director shall, with the approval of the authority: (i) plan, direct, coordinate and execute administrative functions in conformity with the policies and directives of the authority; (ii) employ professional and clerical staff as necessary; (iii) report to the authority on all operations under his control and supervision; (iv) prepare an annual budget and manage the administrative expenses of the authority; and (v) undertake any other activities necessary to implement the powers and duties set forth in this chapter.

Section 4. There shall be a public higher education facilities advisory board comprised of: the state auditor or a designee; the inspector general or a designee; the superintendent of the state police or a designee; the state fire marshal or a designee; the director of the Massachusetts emergency management agency or a designee; the executive director of the authority, who shall serve as the secretary to the advisory board and shall be a nonvoting member of the board; and 17 members to be appointed by and represent the following nongovernmental organizations: Massachusetts Municipal Association, Inc., Massachusetts Association of School Committees, Inc., the Massachusetts Mayors Association, Inc., Massachusetts Association of School Superintendents, Inc., Massachusetts Association of Regional Schools, Inc., Massachusetts Building Trades Council, the Massachusetts chapter of Associated Builders & Contractors, Inc., Massachusetts Alliance for Small Contractors, American Council of Engineering Companies of Massachusetts, Associated Subcontractors of Massachusetts, Inc., American Institute of Architects-Massachusetts, Massachusetts Smart Growth Alliance, Massachusetts Taxpayers Foundation, Inc., Associated General Contractors of Massachusetts, Inc., Massachusetts Chiefs of Police Association Incorporated, Fire Chiefs' Association of Massachusetts, Inc. and acting jointly, the Massachusetts Teachers Association and Massachusetts Federation of Teachers. The advisory board shall assist the authority in the development of general policy regarding public higher education facilities construction, renovation, reconstruction, maintenance and facility space, preservation of open space and minimization of loss of open space, thoughtful community development, cost management, adequate provisions for safety and security and shall provide technical advice and input to the authority. The advisory board shall meet at least quarterly.

Section 5. (a) The authority may provide by resolution for the issuance from time to time of bonds for any purpose of the trust, which bonds may be issued as general obligations of the authority or as special obligations payable solely from particular revenues or moneys of the authority. Bonds of the authority shall not be considered to be a debt of the commonwealth or of any of its political subdivisions. The bonds of each issue may be dated, may bear interest at such rate or rates, including rates variable from time to time, and may mature or otherwise be payable or redeemable at such times as the authority may determine. The authority shall determine the denominations of bonds, the details of their execution and authentication and their places of payment within or without the commonwealth. Before initial issuance of each series of bonds, the authority shall advise the state finance and governance board established under section 97 of chapter 6 of the terms of the bonds and the timing of their issuance. In case any member or officer of the authority whose signature appears on any bonds shall cease to be such officer before their delivery, the signature shall nevertheless be valid and sufficient as if the officer had remained in office until delivery. Bonds may be issued in certificated or uncertificated form, payable to bearer or registered owners, and, if notes, may be made payable to bearer or to order. The authority may sell the bonds of the authority at public or private sale, at par or for such premium or discount price as it may determine. The authority may by resolution delegate to any member or officer of the authority the power to determine any of the matters set forth in this section. The aggregate principal amount of all bonds issued under this chapter shall not exceed $10,000,000,000 outstanding at any time. The principal amount of bonds for the payment or redemption of which, either at or before maturity, refunding bonds shall have been issued, shall be excluded from the aggregate principal amount of bonds issued under this chapter for purposes of computing the limit on outstanding bonds under this section.

(b) Bonds of the authority may be secured by a trust agreement between the authority and the bond owners or a corporate trustee, which may be any trust company or bank having the powers of a trust company within or without the commonwealth. A trust agreement may pledge or assign, in whole or in part, any receipts, fees, revenues or other payments received or to be received by the authority, including without limitation amounts provided to the trust in accordance with section 35BB of chapter 10, grants, appropriations or other assistance from the commonwealth or the United States or any political subdivision or instrumentality of either, investment earnings on its funds and accounts and any other fees, charges or other income received or receivable by the authority and any contract or other rights to receive the same, whether then existing or thereafter coming into existence, and whether then held or thereafter acquired by the trust, and the proceeds thereof. A trust agreement may contain, without limitation, provisions for protecting and enforcing the rights, security and remedies of the bondholders, provisions defining defaults and establishing remedies, which may include acceleration and may also contain restrictions on remedies by individual bondholders. A trust agreement may also contain covenants of the trust concerning the custody, investment and application of moneys, the issuance of additional or refunding bonds, the use of any surplus bond proceeds, the establishment of reserves and the regulation of other matters customarily treated in trust agreements. At the request of the authority, the state treasurer shall join in any trust agreement or to otherwise agree with the authority, any lender or any trustee for bondholders to hold the Public Higher Education Facilities Modernization and Reconstruction Trust Fund, established pursuant to said section 35TTT of said chapter 10, in compliance with any covenants and provisions relating thereto in any trust agreement.

(c) Bonds may be issued by the authority in the form of lines of credit or other banking arrangements under terms and conditions determined by the authority. In addition to other lawful security, bonds may be secured, in whole or in part, by financial guaranties, by insurance, by letters or lines of credit or by other credit enhancement issued to the authority or to a trustee or other person, by any bank, trust company, insurance or surety company or other financial institution, within or without the commonwealth. The authority may pledge or assign, in whole or in part, revenues, funds or other assets or property held or to be received by the authority, and any contract or other rights to receive the same, whether then existing or thereafter coming into existence and whether then held or thereafter acquired by the authority, and the proceeds thereof, as security for any such guaranties or insurance or for the reimbursement to any issuer of a line or letter of credit.

(d) The authority may by resolution provide for the issuance by the authority of interim receipts or temporary bonds, exchangeable for definitive bonds when the bonds are executed and are available for delivery. The authority may also provide for replacement of mutilated, destroyed or lost bonds. The authority may purchase and invite offers to tender for purchase any outstanding bonds; provided, however, that no purchase by the authority shall be made at a price, exclusive of accrued interest, if any, exceeding the principal amount of the bond or, if greater, the redemption price of the bond when next redeemable at the option of the authority. The authority may resell any bonds it purchases in such manner and for such price as it may determine.

(e) The authority may also provide for issuance by the authority of temporary notes in anticipation of bonds, grants, revenues or appropriations. The issuance of the notes shall be governed by this chapter relating to the issuance of bonds. The authority may also issue refunding bonds of the authority for the purpose of paying any bonds at or before maturity. Refunding bonds may be issued at any time at or before the maturity or redemption or purchase of the refunded bonds. Refunding bonds may be issued in sufficient amounts to pay or provide for payment of the principal of the bonds being refunded, together with any redemption premium thereon, any interest or discount accrued or to accrue to the date of payment, costs of issuance and other expenses and reserves reasonably necessary to achieve the refunding.

(f) Bonds of the authority are securities in which public officers and agencies, insurance companies, financial institutions, investment companies, executors, administrators, trustees and others may properly invest funds including capital within their control and securities which may be deposited with any public officer or any agency for any purpose for which the deposit of bonds is authorized by law.

(g) Bonds of the authority shall be considered to be investment securities under chapter 106. Bonds, their transfer and the income therefrom, including any profit made on the sale thereof, shall at all times be exempt from taxation by and within the commonwealth. The authority shall not be required to pay any taxes, assessments or excises upon its income, existence, operation, assets, moneys or revenues.

(h) It shall be lawful for any bank or trust company to act as a depository or trustee under a trust agreement, provided it furnishes such indemnification and reasonable security as the authority may require. Any assignment or pledge of revenues, funds or other assets or property made by the authority shall be valid and binding and shall be deemed continuously perfected for the purposes of chapter 106 and other laws when made. The revenues, funds and other assets and property, rights therein and thereto and proceeds so pledged and then held or thereafter acquired or received by the authority shall immediately be subject to the lien of the pledge without any physical delivery or segregation or further act, and the lien of the pledge shall be valid and binding against all parties having claims of any kind in tort, contract or otherwise against the authority, whether or not the parties have notice thereof. The trust agreement by which a pledge is created need not be filed or recorded to perfect the pledge except in the records of the trustees and no filing need be made pursuant to said chapter 106. Any pledge or assignment made by the authority is an exercise of its political and governmental powers, and revenues, funds, assets, property and contract or other rights to receive the same and the proceeds thereof which are subject to the lien of a pledge or assignment created under this chapter shall not be applied to any purposes not permitted by the pledge or assignment. Any holder of a bond and any trustee under a trust agreement, except to the extent its rights may be restricted by the trust agreement, may bring suit upon the bonds and may pursue any other legal action to protect and enforce its rights and compel performance of all duties required to be performed by the trust and the authority.

Section 6. The authority and its existence shall continue until terminated by law, but no such law shall take effect so long as the authority shall have bonds outstanding unless adequate provision has been made for the payment or satisfaction thereof. Upon termination of the authority, the title to all properties of the authority that remain after provision for the payment or satisfaction of all bonds of the authority shall vest in the commonwealth. The obligations, debts and liabilities of the authority shall be assumed by and imposed upon the commonwealth and shall be transferred to the state treasurer or to such other successor as may be provided by law.

The authority shall not be obligated to make any expenditures for any commitments, improvements, repairs, renovations, capital construction projects, major reconstruction projects, capital improvements required under the Americans With Disabilities Act, new construction, other improvements, major repairs or renovations, any other projects to conform to federal statutory mandates, or projects specifically authorized or mandated for which the necessary additional revenues to complete these commitments, improvements, repairs, renovations, capital construction projects, major reconstruction projects, capital improvements required under the Americans With Disabilities Act, new construction, other improvements, major repairs or renovations, or any other projects to conform to federal statutory mandates, have not been made available to the authority by the commonwealth.

Any commitments, improvements, repairs, renovations, capital construction projects, major reconstruction projects, capital improvements required under the Americans With Disabilities Act, new construction, other improvements, major repairs or renovations, any other projects to conform to federal statutory mandates, or projects specifically authorized or mandated for which the necessary additional revenues to complete these commitments, improvements, repairs, renovations, capital construction projects, major reconstruction projects, capital improvements required under the Americans With Disabilities Act, new construction, other improvements, major repairs or renovations, or any other projects to conform to federal statutory mandates, so authorized or mandated and for which additional revenues have been made available shall be subject to the rules, laws and regulations of the authority.

Section 7. The authority, in cooperation with the state treasurer, shall at all times keep accounts of all receipts, expenditures and disbursements and all assets and liabilities of the authority, which shall be open to inspection by any officer or duly appointed agent of the commonwealth. The authority shall submit an annual report, in writing, to the governor and the clerks of the house of representatives and the senate, who shall forward the same to the president of the senate, the speaker of the house of representatives, the chairpersons of the house and senate committees on ways and means and the house and senate chairpersons of the joint committee on education. The report shall include financial statements relating to the operations, assets and expenditures of the authority maintained in accordance with generally accepted accounting principles so far as applicable and audited by an independent certified public accountant firm.

Section 8. In addition to other remedies of the authority under any bond, note or other evidence of indebtedness, if at any time any amount is distributable or payable by the commonwealth to any public higher education institution and a sum is due to the authority from public higher education institution, for any cause whatsoever, the sum due to the authority, as certified by the authority to the state treasurer, shall be deducted by the state treasurer from the amount distributable or payable to the public higher education institution and shall be paid promptly to the authority. Payment by the state treasurer under this section shall continue to be made until the deficiency on the part of the city, town or regional school district has been offset by the payments from the state treasurer. The authority may also recover from that public higher education institution, in an action in superior court, any amount due the authority, together with any other actual damages the authority shall have sustained from the failure or refusal of that public higher education institution to make payments owing to the authority.

Section 9. Any eligible applicant may apply to the board for reimbursement, in whole or in part, of any expenses incurred for educational, engineering and architectural services incidental to the planning of public higher education facilities project or any expenses incurred for surveys made of public higher education facilities needs and conditions, the contract for which has been approved by the authority. Such application shall be accompanied by information and documentation that the authority may require.

Section 10. An eligible applicant may submit to the authority a statement of interest as set forth and in a form prescribed by the authority, and which shall state what the eligible applicant believes are the deficiencies in said eligible applicant's respective public higher education facilities that meet 1 or more of the statutory priorities set forth in sections 11, 13 and 14 of this chapter or in such additional regulations as the authority may promulgate. Said statement of interest shall be accompanied by such additional forms, documents, and information as the authority shall deem necessary to review the statement. The submission for a statement of interest shall not commit the authority to accept any further application materials, approve an application, or provide a grant or any other type of funding, or place any other obligation or requirement upon the authority. The authority shall notify an eligible applicant if the authority determines that the statement of interest has not met the criteria established in said sections 11, 13, and 14.

If the authority determines that the statement of interest and associated material merits further consideration, the authority may, in its discretion, invite the eligible applicant to apply to the authority for a public higher education facilities grant to meet in part the cost of a higher education project. Application shall mean a series of documents, forms, letters, statements, certifications, plans, studies, drawings and other data and information required by the authority to be submitted within the deadlines and in the format prescribed by the authority and shall be accompanied or supplemented by drawings, plans, estimates of cost and proposals for defraying the costs or any additional information the authority may require before construction is undertaken. The authority shall promulgate regulations establishing the procedural steps by which applications must be made and reviewed, and may at any time during the application process determine that the application does not warrant further consideration, pursuant to the priority criteria established in said sections 11, 13, and 14, and by the authority's regulations.

In the event that an eligible applicant undertakes construction before approval is obtained, the eligible applicant shall remain subject to the authority's approval process as if the construction were not undertaken. If the authority invites an eligible applicant to apply, but is unable to approve the application due solely to the limit on total facilities grants established by section 12, at the request of the eligible applicant, the application shall be retained by the authority for 1 year and reviewed in the year immediately following the year of the application; provided, that in said review, the project shall be ranked and evaluated using the priorities established by section 13 and if the application is not approved by the authority during the review, the applicant shall be required to submit a new application; provided, further, that the authority shall require a new application from an applicant seeking to make a substantial change in scope of the project which is the subject of the application subsequent to disapproval by the authority.

Section 11. (a) Upon receipt of an application pursuant to section 10, from time to time, the authority may designate approved higher education projects. The authority shall examine forthwith the applications and any facts, estimates, or other information relative thereto, and shall make the following findings in order to designate a higher education project as an approved higher education project:

(1) the public higher education facilities project is in the best interests of the commonwealth and the eligible applicant, with respect to its site, type of construction, sufficiency of accommodations, open space preservation, urban development, urban sprawl, energy efficiency and otherwise;

(2) the public higher education facilities project is necessary to meet educational standards required of public institutions of higher education by the department of higher education;

(3) the public higher education facilities project has a value over its useful life commensurate with the lifecycle cost of building, operating and maintaining the project;

(4) the public higher education facilities project is within the capacity of the authority to finance within revenues projected to be available to the trust; and

(5) adequate provisions have been made in the public higher education facilities project for students with disabilities.

The authority shall also consider the availability of funds projected in the trust and other financial obligations of the authority, the authority's long term capital plan, the results of needs surveys, the order of priorities under section 13 and construction procedures and standards under section 14 and otherwise as prescribed by law and regulation.

(b) Within a reasonable time after receipt of the application the authority shall notify the applicant of its approval or rejection thereof, and, in the event of its rejection, of the reasons therefor. Notice of approval hereunder shall be accompanied by a statement of the estimated approved cost as determined by the authority, and an estimate of the amount of total facilities grant to which the eligible applicant may be entitled.

(c) If the authority designates a public higher education facilities project to be an approved public higher education facilities project, the authority shall compute the estimated approved cost of the project, which cost may be equal to the estimated cost furnished by the eligible applicant or a lesser amount, and compute the amount estimated of facilities grant to which the applicant would be entitled, such computation being based on said approved cost. The final approved cost shall be determined by the authority within a reasonable time after the acceptance of the completed project by the local school committee. Final audits shall be conducted promptly by the authority. Final payments shall be determined based on the final approved cost.

(d) Any public higher education institution which has received, in accordance with subsections (b) and (c), notice of approval and an estimate of the amount of a public higher education facilities grant, may borrow from time to time to finance that portion of the cost of the approved public higher education facilities project not being paid by such grant may issue bonds or notes therefor which shall bear on their face the words –Public Higher Education Facilities Project Loan. Each authorized issue shall constitute a separate loan, and the loans shall be paid in not more than 25 years from their dates or up to 30 years if consistent with the guidelines established by the director of accounts pursuant to section 38 of chapter 44. Any public higher education institution which has received, in accordance with subsections (b) and (c), notice of approval and an estimate of the amount of a school facilities grant may issue and renew temporary notes. The authority shall issue regulations relative to issuance of temporary notes for public higher education facilities construction. Indebtedness incurred under this chapter shall be outside the statutory debt limit but shall, except as herein provided, be subject to chapter 44.

(e) A public higher education institution may borrow for a term of not more than 5 years for the cost of such feasibility studies as may be required to apply for a public higher education facilities grant under this chapter.

Chapter 12. There shall be a limit on the estimated amount of grants approved by the authority during a fiscal year. For fiscal year 2024, the limit shall be $800,000,000. For each fiscal year thereafter, the limit shall be the limit for the previous fiscal year plus the lower of: (i) the rate of growth in the dedicated sales tax revenue amount as defined in subsection (a) of section 35TTT of chapter 10; or (ii) 4.5 per cent.

Chapter 13. The authority shall approve public higher education facilities projects and reimbursements pursuant to this chapter in accordance with the following order of priorities:

(1) priority shall be given to public higher education facilities projects needed in the judgment of said board to replace or renovate a building which is structurally unsound or otherwise in a condition seriously jeopardizing the health and safety of students, where no alternative exists;

(2) priority shall be given to public higher education facilities projects to eliminate existing severe overcrowding;

(3) priority shall be given to public higher education facilities projects needed in the judgment of said authority to prevent loss of accreditation;

(4) priority shall be given to public higher education facilities projects needed in the judgment of said authority to prevent severe overcrowding expected to result from increased enrollments which must be substantiated;

(5) priority shall be given to projects needed in the judgment of said authority for the replacement, renovation or modernization of the heating system in any public higher education facility to increase energy conservation and decrease energy related costs in the facility;

(6) priority shall be given to any public higher education facility project needed in the judgment of said authority for short term enrollment growth;

(7) priority shall be given to public higher education facilities projects needed in the judgment of said authority to replace or add to obsolete buildings in order to provide for a full range of programs; and

Notwithstanding the provisions of section 11, the authority may defer its approval or disapproval of any project application if such deferral is necessary for the effective implementation of the provisions of this section. The authority may issue regulations to define the procedures pursuant to which the priorities established by this section will be implemented.

Section 14. (a) In order to maximize the cost effective production of efficient and creative public higher education facilities projects, the authority shall require that every public higher education facilities project conform to standards and procedures as the authority considers appropriate including, not but limited to, the following: (1) that the applicant fully consider all available options for satisfying the described need, including tuition agreements rental or acquisition and any necessary rehabilitation or usage modification of any existing building which could be made available for school use; (2) that the applicant's site selection is based on the cost and environmental factors, including an awareness of soil conditions and their probable effect on foundation and site development costs, transportation effects, dislocation of site occupants and relationship to other community facilities; (3) that the applicant enter into contracts, using forms satisfactory to the authority for such competent architectural, engineering and other services as may be required; and (4) that procedures satisfactory to the authority are followed by the applicant throughout the planning and construction of the project such as assuring maximum attention to the operating and capital cost effects of program and design decisions, materials and systems selections.

(b) The authority shall issue annually, as hereinafter provided, maximum eligible cost standards and size standards for public higher education facilities projects. These standards may take into account the type and location of a proposed public higher education facilities project and may also take into account the difficulty of siting public higher education facilities in dense urban areas in which there exists a shortage of available sites and an increased cost of construction and major renovations. The program standards shall define prototype public higher education facilities design and space recommendations for each specified program activity eligible for state financial assistance. The program standards shall, in the judgment of the authority, be in conformity with the minimum requirements of state law and shall also reflect consideration of cost effects, prevailing educational standards in the commonwealth and the needs of efficient and creative higher education projects. The cost standards shall be based on the price experience of recently completed and recently bid public higher education facilities projects, taking into account the cost effectiveness of design, construction and programming techniques utilized in such higher education projects. For the purpose of calculating the total construction grant, the estimated approved cost and the final approved cost for a higher education project shall not exceed the cost that would result if the project conformed to prototype school standards. The provisions of this section shall not be deemed to preclude an eligible applicant from exceeding prototype public higher education facilities standard; provided, however, the cost of such additional facilities and design shall not be included in the estimated cost and final approved cost on the basis of which the state construction grant is calculated.

(c) On or before March 1 in each year, the authority shall adopt interim regulations, including minimum program standards and maximum cost standards, for the implementation of this section. Upon the adoption of such regulations, the authority shall forthwith file copies thereof with the clerk of the house of representatives who shall refer such regulations to an appropriate committee of the General Court. Within 30 days after such filing, the committee may hold a public hearing on the regulations, shall issue a report, and shall file a copy of the report with the authority. The authority shall adopt final regulations making such revisions in the interim regulations as it deems appropriate in view of the committee’s report and shall forthwith file a copy of the regulations with the chairperson of the committee to which the interim regulations were referred. Not earlier than 30 days after the date of such filing, the board shall file the final regulations with the state secretary and the regulations shall thereupon take effect.

(d) A public higher education institution shall not be entitled to funds granted pursuant to this chapter except at the discretion of the authority in accordance with this chapter.

Section 15. Grants for approved public higher education facilities projects shall be paid in accordance with a disbursement schedule approved by the authority.

Section 16. For approved projects that are an alternative to construction or renovation, the authority shall establish eligible cost criteria and, on a case by case basis, shall determine the allowable cost of such projects. Eligible costs may include but shall not be limited to furnishings and equipment, including upgrades and technological devices necessary for enhanced safety and security, lease costs, rental fees and transportation costs. In no event shall an alternative project be reimbursed if it is determined by the authority to be more costly than construction necessary to achieve the same end.

Section 17. (a) In the event that an eligible applicant sells or leases an assisted facility, or a portion of that facility, on account of which it is receiving grant payments for an approved public higher education facilities project, the sale or lease of the assisted facility, or portion of that structure or facility, shall be for no less than fair market value as determined by independent appraisal, unless the eligible applicant receives prior written approval from the authority to do otherwise, and the proceeds from the sale or lease shall be divided between the authority and the general funds of the applicable eligible applicant in proportion to the commonwealth's and authority's prior investments in the assisted facility under this chapter. An eligible applicant which sells, leases or otherwise removes from use by the eligible applicant as a public higher education facility an approved public higher education facilities project on account of which it is receiving grant payments under this chapter shall report the sale, lease or removal to the authority in the form and manner and within the time prescribed by the authority. The authority may issue regulations to recapture commonwealth and authority assistance for an approved public higher education facilities projects for public higher education facilities that are removed from service.

(b) Before the sale or lease of an assisted facility or a portion of that facility, the public higher education institution in control of the facility shall submit to the authority a use plan that shall include, but not be limited to, a listing of all facilities under the control of the public higher education institution, a detailed description of both the current use and proposed use of each public higher education facility, a detailed floor plan of each public higher education facility that shows and labels each space in the facility including the use of each room in the facility and any other information that may be required by the authority to understand the public higher education institution’s facility use plan.

(c) Any eligible applicant which applies for a grant pursuant to this chapter and which has, prior to such application, sold, leased or otherwise removed from service any public higher education facility operated by said eligible applicant shall be eligible for such grant only if the board determines either that the grant is not for the purpose of replacing a public higher education facility sold, leased or otherwise removed from service in the past 10 years or that the need for the project covered by the grant could not have reasonably been anticipated at the time that such higher education facility was sold, leased or otherwise removed from service.

(d) The provisions of this section, at the discretion of the authority, shall not apply to sales or leases of such assisted facilities for nonprofit public purposes.

Section 18. The authority shall create a maintenance assessment program for public higher education facilities. Such assessment program shall include a review of all major building components, maintenance records, existing staff and vendor contracts. The authority shall use such assessment program to issue ratings of the building conditions for each public higher education institution, survey current conditions, develop a model plan for the proper maintenance of public higher education facilities and provide technical assistance and information to public higher education institutions.

Section 19. (a) Annually, on or before June 30, the authority shall submit a report to the governor, the house and senate committees on ways and means, the joint committee on education, the joint committee on natural resources. The report shall include a listing of each public higher education facility within the commonwealth, together with a description of its size, capacity, age and state of maintenance and whether it is likely to require construction, enlargement, reconstruction, rehabilitation or improvement due to such factors as deterioration, lack of adequate facilities to meet educational standards and anticipated increases in enrollment.

(b) The authority shall conduct periodic surveys of public higher education institutions to determine the need for new public higher education facility construction to meet demand.

(c) The authority shall develop a long-term capital plan in accordance with needs and funding projected to be available in the trust pursuant to this chapter for purposes of planning and guiding the policies of the authority.

(d) The capital plans, needs surveys and reports of the authority shall not give rise to any claim, legal or moral, or enforceable right in any party to benefits or funds from the trust or from other sources.

Section 20. The authority shall, in cooperation with a public higher education institution, submit plans or blueprints approved by the authority, associated with approved construction, renovation or reconstruction of a public higher education facility, to the local police department, fire department, Massachusetts emergency management agency and any regional law enforcement entity. The plans shall identify points of entry into a public higher education facility, emergency access routes for ingress or egress and other public safety features including, but not limited to, fire hydrants, utility access points and stairwells. Any department in receipt of such plans may submit comments to the authority and public higher education institution. Upon completion of the approved construction, the authority shall, subject to appropriation and in cooperation with a public higher education institution, submit updated, as-built plans to the local police department, fire department, Massachusetts emergency management agency and any regional law enforcement entity, a copy of which shall be maintained on file by each department or agency in receipt of the plans. Plans submitted pursuant to this section shall be deemed confidential and shall not be considered public records under clause Twenty-sixth of section 7 of chapter 4.

Name:	District/Address:	Date Added:
Patricia A. Duffy	5th Hampden	1/18/2023
Mindy Domb	3rd Hampshire	1/18/2023
David T. Vieira	3rd Barnstable	12/11/2023