Section R990-200-5 - Criteria for Allocating Volume Cap(1) Private activity bond volume cap allocations are made each calendar year based upon available volume cap. (a) The decision whether to allocate volume cap to an applicant shall be determined by the Board of Review, in its sole discretion.(b) Allocations are not made on a first-come-first-served basis.(c) Each complete application submitted before the deadline will be evaluated and scored in comparison with other applications for the same type of project use. The Board of Review has adopted Policies governing program administration and application scoring. The Policies may be amended from time to time and may be found on the Department of Workforce Services Housing and Community Development website. Applicants and recipients must be aware of and comply with the Policies.(d) The private activity bond program staff and consultants under contract with the Board of Review will evaluate and score each application. In the event demand for funding exceeds the available volume cap, applications will be numerically ranked for allocation.(e) When considering multiple applications at a meeting, the Board of Review may choose to award each applicant an equal share, pro rata share, priority for multi-family housing or other classification, or other division of available volume cap.(2) When deciding to allocate volume cap to an applicant, the Board of Review shall consider the criteria outlined in Section 35A-8-2105 and the following additional criteria: (a) timely submission of completed application;(b) timely payment of applicable fees;(c) applicant's experience in successfully completing projects utilizing private activity bonds;(d) project financing, including executed letters of intent for debt and equity funding;(e) project readiness, including required public entity approvals, site ownership, and architect and construction contracts;(f) timely response to any questions raised by the Board of Review and private activity bond program staff;(g) status of project's financing at time of application;(h) appointment of bond counsel;(i) letter from bond counsel opining the project qualifies for private activity bonds;(j) appointment of investment banker or, if private placement, buyer of the bonds;(k) detailed commitment letters from financial entities involved;(l) ability to cause bonds to be issued within 12 months of allocation;(m) past history of forfeited allocation commitments;(n) length of tax-exempt bond amortization; and(o) other factors considered appropriate by the Board of Review.(3) Multi-family housing applicants must meet the criteria of the Low-Income Housing Tax Credit program administered by the Utah Housing Corporation. In addition to the criteria in Subsection R990-200-5(2), the Board of Review shall consider the following criteria when deciding to allocate volume cap to multi-family housing applicants: (a) bond amount per unit;(b) bond amount per affordable unit;(c) the percentage, in relation to the group of applications currently being evaluated, of the private activity bond allocation being requested;(d) percentage of public financing, including the value of grants, loans, fee waivers, and concessions, but excluding housing tax credits;(e) total cost per unit and per unit square footage;(f) percentage of developer fee contributed to project;(g) percentage of affordable units;(h) percentage of special needs units;(j) percentage of taxable bonds;(k) location, with preference for projects located in:(ii) communities without the same type of projects; and(iii) difficult to develop areas as defined by HUD;(l) project characteristics, including:(iii) mixed income projects, with both affordable and market rate units; and(iv) size of proposed project;(m) mitigation of environmental issues, including installing radon gas extraction fans or removing the source of radon; and(n) acquisition, rehabilitation, and remediation of buildings with Utah or federal historic designation, including removal of hazards and including appraisals and a relocation plan for current residents.(4) In addition to the criteria in Subsection R990-200-5(2), the Board of Review shall consider the following criteria when deciding to allocate volume cap to manufacturing facility, redevelopment and exempt facilities applicants: (a) new full-time-equivalent job creation, including a list of new positions and wages, and excluding construction and other temporary jobs;(c) training and education of employees;(d) bond amount to permanent full-time-equivalent jobs ratio;(e) permanent full-time-equivalent jobs created or retained that provide above average wages when compared to other applicants' average wages and the community average wage;(f) demonstrated need for tax-exempt financing, including:(i) projected cash flow for the first three years of operation, including supporting documentation, and(ii) explanation for selecting variable or fixed rates;(g) community support, including: (iii) tax increment financing; and(h) competitive costs for construction and equipment related expenses; and(i) ready-to-go status, including:(i) manufacturing facility zoned for use;(ii) proximity of infrastructure to site;(iii) need for special infrastructure;(iv) environmental study, if required by lender;(v) current title report and site plan of project; and(vi) building description.(5) Before considering an application, a Board of Review member shall disclose the substance of any communication the member has had outside of a public meeting with an applicant or other interested party regarding the project.(6) The allocation certificate issued for multi-family housing volume cap shall restrict the occupancy of market rate rental units to families whose incomes do not exceed 150% of AMI, adjusted for family size, for at least 51 years from the date on which at least 50% of the residential units in the project are first occupied. (a) Recipients and owners shall comply with any terms of the Certificate of Allocation, including any additional conditions approved by the Board of Review.(b) Recipients and owners shall submit documentation to private activity bond program staff within 15 days after the issuance of bonds, and at other times upon request, to verify compliance with the terms of the Certificate of Allocation.(7) Subject to Subsection R990-200-5(7)(e), if a recipient undergoes any change in ownership or management after an allocation is awarded to it, the Board of Review may, in its discretion, require that the allocation be relinquished. Such change includes the addition or removal of one or more directors or managing partners. For purposes of Subsection R990-200-5(7), "removal" or "removed" shall apply to any director, partner, or other official whose association with the recipient ends voluntarily or involuntarily, by resignation or discharge.(a) Recipients shall be required to notify the Board of Review, in writing and at least 30 business days in advance, of any changes or anticipated changes in the recipient's ownership or management. Such notice shall include, at a minimum, the effective date of the change or anticipated change and the full names and current business addresses of each additional or removed director, managing partner, or other official.(b) In determining whether to require relinquishment of the previously awarded allocation, the Board of Review shall evaluate the recipient's new ownership or management composition based on the qualifications and criteria detailed in Subsections R990-200-5(1)(a) through (e) as well as any additional factors it deems relevant.(c) The Board of Review will make every effort to hold a meeting before the effective date of the change in ownership. At said meeting, the Board of Review shall decide, in its sole discretion, whether to require relinquishment of the recipient's allocation. The previously awarded allocation shall remain effective until the effective date of the change in ownership or until the first Board of Review meeting following the recipient's advance written notice to the Board of Review, whichever is sooner. If the effective date of the change in ownership occurs before the Board of Review can hold a meeting, the recipient's allocation will be paused from the effective date until the Board of Review has held a meeting and decided whether to require relinquishment. (i) If the Board of Review votes to require relinquishment, the relinquishment shall become effective on a date specified by the Board of Review on the record at the meeting at which it votes.(ii) If the Board of Review votes not to require relinquishment, the allocation shall remain in effect. Within ten business days of the Board of Review's vote, each new owner or manager shall provide to the chair a signed acknowledgement that the recipient is bound by all terms and conditions in the Certificate of Allocation. If any new owner or manager fails to submit such an acknowledgement as required, the Board of Review reserves the right to vote at the next Board of Review meeting to require relinquishment of the allocation.(d) If a recipient fails to make the Board of Review aware of a change or anticipated change in ownership in keeping with Subsection R990-200-205(7)(a), the Board of Review reserves the right, in its sole discretion, to take either or both of the following actions: (i) revoke the recipient's allocation at the first Board of Review meeting following the date on which the Board of Review became aware of the change or anticipated change in ownership; or(ii) prohibit the recipient from applying for any additional volume cap allocations for one year following the date on which the Board of Review became aware of the change or anticipated change in ownership.(e) Subsection R990-200-5(7) shall not apply when the recipient is one of the following: (i) the state or any of the state's agencies, institutions, or divisions; or(iii) any county, city, or town in the state or any of a county, city, or town's agencies, institutions, or divisions.Utah Admin. Code R990-200-5
Adopted by Utah State Bulletin Number 2019-16, effective 7/30/2019Amended by Utah State Bulletin Number 2022-01, effective 12/22/2021Amended by Utah State Bulletin Number 2023-04, effective 2/7/2023