Governor's Executive Order EO/001/2010:Establishing A System For Allocating Volume Cap For Qualified Energy Conservation Bonds in the State Consistent With the Provisions of the United States Internal Revenue Code of 1986

Issued: January 12, 2010

(DAR Note: This Executive Order was republished in the Utah State Bulletin issued on 02/15/2010 to correct minor typographical errors)

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EXECUTIVE ORDER

Establishing A System For Allocating Volume Cap For Qualified Energy Conservation Bonds in the State Consistent With the Provisions of the United States Internal Revenue Code of 1986

WHEREAS, Section 56D of the Internal Revenue Code of 1986, as amended (the "Code") provides that certain bonds can be issued for "qualified conservation purposes" subject to certain volume limitations (the "Volume Cap"); and

WHEREAS, the Code provides a formula for the allocation of such Volume Cap and in order to provide for the implementation and administration of the formula for allocation of the Volume Cap among the State of Utah and its issuing authorities, it is prudent to issue this Executive Order;

NOW, THEREFORE, I, Gary R. Herbert, Governor of the State of Utah, by the power vested in me by the Constitution and laws of the State of Utah do hereby order and proclaim:

Section 1: As used in this Executive Order:

(1) "Allocation Dollars" means the dollar amount of the Volume Cap expressed in terms of dollars. Each Allocation Dollar equals one dollar of Volume Cap that may be allocated under this Executive Order.

(2) "Board" means the Private Activity Bond Review Board of the State, created by Section 9-4-503, Utah Code Annotated 1953, as amended.

(3) "Bonds" means the Qualified Energy Conservation Bonds for which an allocation of the Volume Cap is required by the Code.

(4) "Code" means the Internal Revenue Code of 1986, as amended, including the American Recovery and Reinvestment Act of 2009, and any related regulations, including without limitation, the Notice, all as may be amended or supplemented.

(5) "Form 8038" means the IRS form 8038, 8038-G or any other federal tax form or other method of reporting required by the United States Department of the Treasury under Section 149(e) of the Code.

(6) "Initial Required Allocations" means the Required Initial Allocations established by the Board under the Notice and referred to in Section 2 hereof.

(7) "Issuing Authority" shall have the meaning set forth in section 9-4-502(7) Utah Code Annotated 1953, as amended.

(8) "Notice" means IRS Notice 2009-29, as amended.

(9) "Qualified Energy Conservation Bonds" means bonds, notes or other obligations issued for "qualified conservation purposes" as provided in the Code and Notice.

(10) "Remaining Volume Cap" means the amount set forth as "Remaining Volume Cap" in Section 3 hereof.

(11) "State" means the State of Utah.

(12) "Subsequent Allocation" means an allocation of Volume Cap by the Board, acting on behalf of) the State, of Remaining Volume Cap or all or a portion of an Initial Required Allocation returned to the State by waiver under the Code and Notice.

(13) "Ultimate Beneficiary" means the ultimate beneficiary of the Volume Cap as provided in the Code and Notice.

(14) "Volume Cap" means the volume cap for Qualified Energy Conservation Bonds for the State as computed under Section 54D of the Code, the Notice and related regulations.

Section 2.

The Initial Required Allocations of Volume Cap for the State are hereby made by the State to State counties and municipalities qualifying as "large local governments" in the amounts set forth on Exhibit "A". Such amounts were determined by the Board under the Notice and are intended to be further allocated by said entities to Ultimate Beneficiaries as provided in the Notice. The Initial Allocations do not expire unless all or a portion is returned to the State by waiver or deemed waiver as provided in the Code and Notice.

Section 3.

The Remaining Volume Cap shall equal the Qualified Energy Conservation Bond limitation allocated to the State under the Code and the Notice, less the sum of all Initial Required Allocations. Subsequent Allocations of Volume Cap shall be allocated by the Board in accordance with the procedures set forth in this Executive Order. The Board may seek waivers of Initial Required Allocations from applicable counties or municipalities that choose not to make their own allocations under the Code and Notice and allow the Board to make Subsequent Allocations.

Section 4.

(1) In order to obtain a Subsequent Allocation of Volume Cap, an Issuing Authority or Ultimate Beneficiary shall, prior to the issuance of Bonds, submit an application to the Board in a form acceptable to the Board and containing all information reasonably required by the Board. Information so obtained is subject to the Government Records Access and Management Act (GRAMA) of the State and may be classified as protected records if the requirements relating hereto are determined to apply by the Chair of the Board.

(2) The Board shall be under no obligation to process any application that is incomplete. Any application submitted by an Issuing Authority or Ultimate Beneficiary that the Board does not process shall be returned within a reasonable time with a brief explanation as to why the application was not processed.

(3) Subsequent Allocations shall be made on the basis of need, benefit to the citizens of the State and efficient distribution of resources in the State as determined by the Board. Subsequent Allocation may be made for an amount equal to or less than the amount requested as determined by the Board.

(4) Subsequent Allocations of Remaining Volume Cap and allocations by "large local governments" of Initial Required Allocations will be made such that not less than 70 percent of the allocation to the State or to each "large local government" will be used for Bonds which are not private activity bonds as provided in the Code and the Notice. Bonds issued to finance capital expenditures to implement "green community programs" shall not be treated as private activity bonds for this purpose.

Section 5.

(1) A certificate of allocation evidencing the granting of a Subsequent Allocation of Volume Cap shall be issued by the Chair of the Board to the requesting Issuing Authority or Ultimate Beneficiary.

(2) Every Subsequent Allocation of the Volume Cap shall remain effective until, and including, the date determined by the Board but not to exceed 180 days after the date on which such allocation was made. Any allocation for which Bonds are issued on or prior to the applicable date specified in this subsection shall be irrevocably allocated to such Bonds.

(3) The expiration date of an allocation of Volume Cap under this Executive Order may be extended upon prior written approval of the Board, as evidenced by an amended certificate of allocation.

Section 6.

(1) After the effective date of this Executive Order, each Issuing Authority shall advise the Board on or before the fifteenth day after the issuance of any Bonds of the principal amount of Bonds issued under an Initial Required Allocation or under a Subsequent Allocation by delivering to the Board a copy of the Form 8038 which was delivered to the Internal Revenue Service in connection with such Bonds.

(2) If all or a stated portion of Bonds, for which a Subsequent Allocation was made, were not, or will not be, issued, the related Issuing Authority shall advise the Board in writing of such fact on or before the earlier of: (A) the fifteenth day after the final decision not to issue all or a stated portion of such Bonds, or (B) the expiration date of the Subsequent Allocation.

Section 7.

In addition to the duties otherwise specifically set forth in this Executive Order, the Chair of the Board shall:

(1) maintain a record of all applications filed by Issuing Authorities or Ultimate Beneficiaries and all certificates of allocation issued hereunder;

(2) maintain a record of all Bonds issued by Issuing Authorities;

(3) maintain a record of material information filed by Issuing Authorities or Ultimate Beneficiaries under this Executive Order;

(4) make available upon reasonable request a certified copy of all or any part portion of the records maintained by the Board under this Executive Order or a summary thereof, including information regarding the Volume Cap allocated and any amounts remaining available, for allocation under this Executive Order; and

(5) establish an allocation process, including a form of application, not inconsistent with this Executive Order, deemed necessary or expedient to allocate the Volume Cap hereunder.

Section 8.

If any provision of this Executive Order shall be held to be, or shall, in fact, be invalid, inoperative or unconstitutional, the defect of the provision shall not affect any other provision of this Executive Order or render it invalid, inoperative, or unenforceable. To the extent this Executive Order shall be held or shall, in fact, be invalid inoperative, or unconstitutional, all allocations of the Volume Cap previously made under this Executive Order shall be treated as allocations made by the Governor of the State in accordance with this Executive Order.

Section 9.

The State pledges and agrees with the owners of Bonds, to which an allocation of the Volume Cap has been granted under this Executive Order, that the State will not retroactively alter the allocation of the Volume Cap to such Bonds after the issuance date of such Bonds.

Section 10.

No action taken pursuant to this Executive Order shall be deemed to create an obligation, debt or liability of the State, or be deemed to constitute an approval of any obligation issued or to be issued for the purposes set forth herein.

Section 11.

The purpose of this Executive Order is to maximize the benefits of financing and development through the use of Bonds by providing a system for the implementation and administration of the formula provided under the Code for allocating Volume Cap.

Section 12.

This Executive Order shall be effective immediately and shall continue in effect until such time as it may be repealed or superseded by operation of State or Federal law.

IN WITNESS WHEREOF, I have hereunto set my hand and caused to be affixed the Great Seal of the State of Utah at the Utah State Capitol in Salt Lake City on this, the 12th day of January, 2010.

(State Seal)

Gary R. Herbert
Governor

Attest:

Greg Bell
Lieutenant Governor

EO/001/2010

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EXHIBIT A TO EXECUTIVE ORDER

State of Utah
Qualified Energy Conservation Bonds
Suballocation Amounts
2007 Total State Population for Utah	Name of City or County	2007 City/County Population	C/C Percentage of State Population	QECB State Volume Cap Amount	C/C Allocation Amount
2,668,925	Cache County	108,995	4.0839%	$28,389,000	$1,159,365
2,668,925	Davis County	287,751	10.7815%	$28,389,000	$3,060,769
2,668,925	Provo City	117,849	4.4156%	$28,389,000	$1,253,544
2,668,925	Salt Lake City	179,433	6.7230%	$28,389,000	$1,908,605
2,668,925	Salt Lake County	600,993	22.5182%	$28,389,000	$6,392,683
2,668,925	Utah County	395,414	14.8155%	$28,389,000	$4,205,966
2,668,925	Washington County	133,447	5.0000%	$28,389,000	$1,419,458
2,668,925	Weber County	221,419	8.2962%	$28,389,000	$2,355,204
2,668,925	West Jordan City	102,445	3.8384%	$28,389,000	$1,089,694
2,668,925	West Valley City	122,374	4.5851%	$28,389,000	$1,301,676
2,668,925	Indian Tribal Gov	37,009	1.3867%	$28,389,000	$393,660
Total Percentage and Allocation Amounts			86.4441%		$24,540,624
		Total Amount Left for State Allocation			$3,848,376

 

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