Section R309-700-4 - Application and Project Initiation ProceduresThe following procedures must normally be followed to obtain financial assistance from the Board:
(1) It is the responsibility of the applicant to obtain the necessary financial, legal, and engineering counsel to prepare its application and an effective and appropriate financial assistance agreement.(2) The applicant shall submit a completed application form, an engineering report listing the project alternatives considered and including a justification for the chosen alternative, a project financing plan that includes an evaluation of credit enhancement, interest buy-down and loan methods applicable to the project, and documents necessary to perform a financial capability assessment, when requested, and capacity assessment, if the Board determines such documentation will be beneficial for evaluating project feasibility. Comments from the local health department or the Department of Environmental Quality's resident district engineer may accompany the application. Comments from other interested parties such as an association of governments will also be accepted. Those costs incurred after the submission of a completed funding application form to the Board and before the execution of a financial assistance agreement and which meet the criteria for project costs are eligible for reimbursement from the proceeds of the financial assistance agreement.(3) Division staff will evaluate the application and supporting documentation, calculate proposed terms of financial assistance, prepare a report for review by the Board, and present said report to the Board for its consideration.(4) The Board may authorize financial assistance for the project on the basis of the staff's feasibility report and designate whether a loan, credit enhancement agreement, interest buy-down agreement, hardship grant or any combination thereof, is to be entered into, and approve the project schedule as described in Section R309-700-13. The Board shall authorize a hardship grant only if it determines that other financing alternatives are unavailable or unreasonably expensive to the applicant, as described in Section R309-700-5. If the applicant seeks financial assistance in the form of a loan of amounts in the security account established pursuant to Title 73, Chapter 10c, Water Security Council, which loan is intended to provide direct financing of projects costs, then the Board shall authorize such loan only if it determines that credit enhancement agreements, interest buy-down agreements and other financing alternatives are unavailable or unreasonably expensive to the applicant or that a loan represents the financing alternative most economically advantageous to the state and the applicant; provided, that for purposes of this subsection and for purposes of Subsection 73-10c-4(2), the term "loan" shall not include loans issued in connection with interest buy-down agreements as described in Subsection R309-700-10(2) or in connection with any other interest buy-down arrangement.(5) Planning Grant - The applicant must submit an application provided by the Division and attach a scope of work, project schedule, cost estimates, and a draft contract for planning services.(6) Planning Loan - The applicant requesting a Planning Loan must complete an application for a Planning Loan, prepare a plan of study, satisfactorily demonstrate procurement of planning services, and prepare a draft contract for planning services including financial evaluations and a schedule of work.(7) Design Grant or Loan - The applicant requesting a Design Grant or Loan must have completed an engineering plan meeting program requirements.(8) The applicant must demonstrate public support for the project. As a minimum, for a loan to be secured by a revenue bond, the Sponsor must mail notices to each water user in the Sponsor's service area informing them of a public hearing. In addition to the time and location of the public hearing the notice shall inform water users of the Sponsor's intent to issue a non-voted revenue bond to the Board, shall describe the face amount of the bond, the rate of interest, the repayment schedule and shall describe the impact of the project on the user including any increase in user rates, and impact and connection fees. The notice shall state that water users may respond to the Sponsor in writing or in the public hearing. The public hearing shall be held within ten days after the date of the notice. A copy of all written responses and a certified record of the public hearing shall be forwarded to the Division of Drinking Water.(9) For financial assistance mechanisms when the applicant's bond is purchased by the Board, the project applicant's bond documentation, including an opinion from legal counsel experienced in bond matters that the drinking water project obligation is a valid and binding obligation of the applicant, as described in Subsection R309-700-13(3), must be submitted to the Board's bond counsel for preliminary approval and the applicant shall publish a Notice of Intent to issue bonds in a newspaper of general circulation pursuant to Section 11-14-21. For financial assistance mechanisms when the applicant's bond is not purchased by the Board, the applicant shall submit a true and correct copy of an opinion from legal counsel experienced in bond matters that the drinking water project obligation is a valid and binding obligation of the applicant.(10) Hardship Grant - The Board or its designee executes a grant agreement setting forth the terms and conditions of the grant.(11) As authorized in Subsection 19-4-106(2)(c) the Executive Secretary may review plans, specifications, and other data pertinent to proposed or expanded water supply systems to ensure proper design and construction, as specified in Section R309-500-4 General. Construction of a public drinking water project shall not begin until complete plans and specifications have been approved in writing by the Executive Secretary.(12) If a project is designated to be financed by the Board through a loan or an interest buy-down agreement as described in Subsection R309-700-10(2) to cover any part of project costs an escrow account supervised by the applicant and the Board will be established by the applicant to assure that loan funds are used only for qualified project costs. If financial assistance for the project is provided by the Board in the form of a credit enhancement or interest buy-down agreement as described in Subsection R309-700-10(1) all project funds will be maintained in a separate account and a quarterly report of project expenditures will be provided to the Board.(13) If a revenue bond is to be used to secure a loan, a User Charge Ordinance must be submitted to the Board for review and approval to ensure adequate provisions for debt retirement and infrastructure operation and maintenance. If a general obligation bond is to be used to secure a loan, a User Charge Ordinance must be submitted to the Board for review and approval to ensure the system will have adequate resources to provide acceptable service.(14) The applicant's contract with its engineer must be submitted to the Board for review to determine that there will be adequate engineering involvement, including project supervision and inspection, to successfully complete the project.(15) A position fidelity bond may be required by the Board insuring the treasurer or other local staff handling the repayment funds and revenues produced by the applicant's system and payable to the State of Utah through the Drinking Water Board.(16) The applicant's attorney must provide an opinion to the Board regarding legal incorporation of the applicant, valid legal title to easements and rights-of-way at the project site and throughout the system, and adequacy of bidding and contract documents.(17) CREDIT ENHANCEMENT AGREEMENT AND INTEREST BUY-DOWN AGREEMENT ONLY - The Board executes the credit enhancement agreement or interest buy-down agreement setting forth the terms and conditions of the security or other forms of assistance provided by the agreement and notifies the applicant to sell the bonds, as described in Sections R309-700-9 and R309-700-10.(18) CREDIT ENHANCEMENT AGREEMENT AND INTEREST BUY-DOWN AGREEMENT ONLY - The applicant sells the bonds and notifies the Board of the terms of sale. If a credit enhancement agreement is utilized, the bonds shall contain the legend required by Subsection 73-10c-6(3)(d). If an interest buy-down agreement is utilized, the bonds shall bear a legend which makes reference to the interest buy-down agreement and states that such agreement does not constitute a pledge of or charge against the general revenues, credit or taxing powers of the state and that the holder of any such bond may look only to the applicant and the funds and revenues pledged by the applicant for the payment of interest and principal on the bonds.(19) The applicant opens bids for the project.(20) LOAN ONLY - The Board approves purchase of the bonds and executes the loan contract, as described Subsection R309-700-4(24).(21) LOAN ONLY - The loan closing is conducted.(22) A preconstruction conference shall be held.(23) The applicant issues a written notice to proceed to the contractor.(24) The applicant must have adopted a Water Conservation Plan before executing the loan agreement.Utah Admin. Code R309-700-4
Amended by Utah State Bulletin Number 2023-11, effective 5/22/2023