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The Oregon Administrative Rules contain OARs filed through October 15, 2014
 
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DEPARTMENT OF TRANSPORTATION

 

DIVISION 30

OREGON TRANSPORTATION INFRASTRUCTURE FUND

731-030-0010

Purpose of the Rules

OAR 731-030-0010 to 731-030-0170 establish the procedures and requirements for the administration of the Oregon Transportation Infrastructure Fund and for the creation and operation of the Oregon Transportation Infrastructure Bank.

Stat. Auth.: ORS 184.616, 184.619, 367.015 & 367.020
Stats. Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59, Sect. 350
Hist.: DOT 1-1997, f. & cert. ef. 1-17-97; DOT 7-2004, f. & cert. ef. 11-17-04; DOT 3-2012, f. & cert. ef. 6-27-12

731-030-0020

Statutory Authority

Oregon Revised Statutes (ORS) 367.010 to 367.060 provide authority for the Department to operate the Oregon Transportation Infrastructure Fund.

Stat. Auth.: ORS 184.616, 184.619, 367.015 & 367.020
Stats. Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59, Sect. 350
Hist.: DOT 1-1997, f. & cert. ef. 1-17-97; DOT 7-2004, f. & cert. ef. 11-17-04

731-030-0030

Definitions

For the purposes of OAR 731-030-0010 through 731-030-0170, the following definitions apply, unless the context clearly indicates otherwise:

(1) “Applicant” means a Municipality or any other entity authorized by law to obtain an Infrastructure Loan or Infrastructure Assistance including an Agency or the Department.

(2) “Application” means the form, prescribed by the Department, and all supplemental attachments, exhibits and other supporting papers that the Applicant completes and provides to the Department to request an Infrastructure Loan or Infrastructure Assistance through the Oregon Transportation Infrastructure Bank.

(3) “Agency” has the meaning given in ORS 367.010(1).

(4) “Agency Contract” means an inter-agency agreement between the Department and an Agency or intra-agency agreement between the Department and a Department Borrower, that is intended to be binding on the State of Oregon and the Agency or the Department Borrower, respectively, as provided in ORS 367.040.

(5) “Agreement” means a legally binding contract between the Department and a Recipient that sets out the terms and conditions under which the Department is providing an Infrastructure Loan or Infrastructure Assistance.

(6) “Bond” has the meaning given in ORS 367.010(2).

(7) “Bond Counsel” means a law firm having knowledge and expertise in the field of municipal law and whose opinions are generally accepted by purchasers of municipal bonds.

(8) “Bond Debt Service” has the meaning given in ORS 367.010(3).

(9) “Chief Financial Officer” means the fiscal officer designated under ORS 184.637, who is also the manager of ODOT Financial Services.

(10) “Collateral” means any real or personal property, including but not limited to intangibles, bonds, revenues or other money, that is or may be pledged, or subject to a lien or security interest to secure the repayment of an Infrastructure Loan, and includes any property included in the definition of collateral in ORS 79.0102(1).

(11) “Commission” means the Oregon Transportation Commission.

(12) “Credit Enhancement” has the meaning given in ORS 367.010(4).

(13) “Debt Service Reserve” means any moneys reserved for debt service for, or used to secure payment of, Infrastructure Bonds. A Debt Service Reserve may be held in a segregated account in the Infrastructure Fund or by a trustee.

(14) “Department” or “ODOT” means the Oregon Department of Transportation.

(15) “Department Borrower” means a division or other organizational unit in the Department that applies for or receives an Infrastructure Loan or Infrastructure Assistance from the Oregon Transportation Infrastructure Fund.

(16) “Director” means the director of the Department.

(17) “Financial Advisor” means a consultant providing the Department with information and advice relative to the structure, timing, marketing, pricing, terms and bond ratings for the sale of Infrastructure Bonds.

(18) “Infrastructure” means any construction project, facility, property or program that provides the foundation or basic framework by which an entity provides transportation services to the public.

(19) “Infrastructure Assistance” has the meaning given in ORS 367.010(6).

(20) “Infrastructure Bonds” has the meaning given in ORS 367.010(7).

(21) “Infrastructure Fund” has the meaning given in ORS 367.010(8) .

(22) “Infrastructure Loan” has the meaning given in ORS 367.010(9).

(23) “Municipality” has the meaning given in ORS 367.010(10).

(24) “Oregon Transportation Infrastructure Bank” or “OTIB” means the program authorized by Section 350 of the National Highway System Designation Act of 1995, 23 U.S.C. 101 note, Public Law 104-59, and a cooperative agreement between the U.S. Department of Transportation and the Department dated August 26, 1996.

(25) “Oregon Transportation Infrastructure Fund” means the fund established in ORS 367.015.

(26) “Public Transit Division Administrator” means the administrative head of the Transit Division or his or her designee.

(27) “Private Entity” means a natural person capable of being legally bound, a sole proprietorship, a corporation, a partnership, a limited liability company or partnership, a limited partnership, a for-profit or non-profit unincorporated association, a business trust, or any other entity with legal capacity to contract which is not a Government, as defined by ORS 165.075, or a Local Government as defined by ORS 174.116.

(28) “Recipient” means an Applicant that has received an Infrastructure Loan or Infrastructure Assistance or a combination thereof.

(29) “Region” means one of the geographic areas established by the Department to administer transportation programs.

(30) “Region Manager” means the administrative head of a Region or his or her designee.

(31) “Staff” means Department employees assigned by the Chief Financial Officer to manage the day-to-day operations of the OTIB and the Infrastructure Fund and to evaluate the credit quality or financial feasibility of any Infrastructure Loan or Infrastructure Assistance.

(32) “Statewide Transportation Improvement Program” or “STIP” means the State’s transportation preservation and capital improvement program and includes any project scheduling and funding documents related thereto.

(33) “Transportation Project” has the meaning given in ORS 367.010(11).

Stat. Auth.: ORS 184.616, 184.619, 367.015 & 367.020
Stats. Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59, Sect. 350
Hist.: DOT 1-1997, f. & cert. ef. 1-17-97; DOT 7-2004, f. & cert. ef. 11-17-04; DOT 3-2012, f. & cert. ef. 6-27-12

731-030-0040

Purpose of the Oregon Transportation Infrastructure Fund

(1) The purpose of the Oregon Transportation Infrastructure Fund is to fund transportation solutions, leverage additional funds into Infrastructure, and encourage innovative financing techniques in order to further Oregon’s livability and economic competitiveness. In accomplishing this purpose, all Transportation Projects funded by the Oregon Transportation Infrastructure Fund will be required to satisfy all appropriate federal, state and local planning and programming requirements.

(2) To achieve the objectives of the Oregon Transportation Infrastructure Fund, the Department has established the Oregon Transportation Infrastructure Bank.

Stat. Auth.: ORS 184.616, 184.619, 367.015 & 367.020
Stats. Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59, Sect. 350
Hist.: DOT 1-1997, f. & cert. ef. 1-17-97; DOT 7-2004, f. & cert. ef. 11-17-04; DOT 3-2012, f. & cert. ef. 6-27-12

731-030-0050

Administration of Funds

(1) Authority for the day-to-day operations and management of the OTIB and the management of the Infrastructure Fund is delegated to the Chief Financial Officer and Staff.

(2) The Department may expend funds from the Infrastructure Fund for the purposes set forth in ORS 367.015.

Stat. Auth.: ORS 184.616, 184.619, 367.015 & 367.020
Stats. Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59, Sect. 350
Hist.: DOT 1-1997, f. & cert. ef. 1-17-97; DOT 7-2004, f. & cert. ef. 11-17-04; DOT 3-2012, f. & cert. ef. 6-27-12

731-030-0090

Application Procedures

(1) An Applicant may submit an Application for an Infrastructure Loan or Infrastructure Assistance at any time, subject to deadlines, if any, established by the Department.

(2) An Application must be submitted in the manner and form approved by the Department. In addition to the information required by the Application, the Applicant may be required to provide such additional information and supporting documentation concerning the Applicant and the proposed Transportation Project as the Department deems necessary or appropriate in order to enable the Application to be properly evaluated.

Stat. Auth.: ORS 184.616, 184.619, 367.015 & 367.020
Stats. Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59, Sect. 350
Hist.: DOT 1-1997, f. & cert. ef. 1-17-97; DOT 7-2004, f. & cert. ef. 11-17-04; DOT 3-2012, f. & cert. ef. 6-27-12

731-030-0100

Application Evaluation Procedures

(1) Upon receipt of a complete Application, the Department will evaluate the Application to determine whether an Applicant is creditworthy. An Applicant is creditworthy if the Applicant has a satisfactory credit history and sufficient capacity to repay the Infrastructure Loan.

(2) While an Application is pending, the Department may require the Applicant to provide additional information with respect to, or clarification of, any matter pertaining to the Application, the Applicant, the proposed Transportation Project or the financing thereof as the Department determines in its sole discretion to be reasonably necessary, convenient or appropriate. Evaluation of an Application will include an examination of Application information to determine the extent to which an Applicant and the proposed Transportation Project meet the following criteria:

(a) The Transportation Project complies with the local transportation plan and with state land use laws and satisfies all appropriate federal, state and local planning and programming requirements.

(b) The Transportation Project meets any appropriate design standards.

(c) The requested Infrastructure Loan or Infrastructure Assistance will result in the Transportation Project being constructed on a faster time schedule than conventional funding would allow, or the Infrastructure Loan or Infrastructure Assistance will complete the required project financing and allow the Transportation Project to proceed to construction.

(d) The Transportation Project will further the goal of safety in transportation.

(e) The Transportation Project will help manage traffic growth and improve livability.

(f) The Application identifies a revenue stream adequate to repay an Infrastructure Loan or meets the terms of any Infrastructure Assistance that is provided.

(g) The Application identifies Collateral adequate to secure repayment of the Infrastructure Loan.

(h) The Transportation Project will attract new or less conventional capital to Infrastructure funding.

(i) The Infrastructure Loan, if any, has a term acceptable to the Department. A Transportation Project financed with a shorter term Infrastructure Loan will score higher than one financed with a longer term Infrastructure Loan.

(j) The Transportation Project will support the community’s economic development.

(k) The Transportation Project will enhance the quality of life in the community.

(L) Unless the Chief Financial Officer finds that financial factors warrant otherwise, if the Applicant is a Private Entity:

(A) The Applicant for an Infrastructure Loan or Infrastructure Assistance must provide adequate security;

(B) An Infrastructure Loan or Infrastructure Assistance will be for no more than fifty percent (50%) of the fair market value of the real property Collateral on which the Department has a first lien or twenty-five percent (25%) of the fair market value of the real property Collateral if the Department has a junior lien;

(C) The Applicant must have made a profit after taxes for at least the two years immediately preceding the Application;

(D) The Applicant must have had a positive cash flow from operating activities (earnings before interest and taxes plus depreciation less taxes) for at least two of the last three years immediately preceding the Application;

(E) The Applicant must have a ratio of current assets to current liabilities of at least 1.75 to 1, a ratio of current assets less inventories to current liabilities of at least 1 to 1, and a ratio of total debt to owner’s equity of no more than 2 to 1 for at least two of the last three years immediately preceding the Application.

(2) The Department will assign the Application to a Region, the Department’s Public Transit Division or their designee as appropriate for evaluation of technical, engineering and planning criteria. The designated assignee will:

(a) Evaluate a Transportation Project or Application according to the Application evaluation criteria established by the Department in OAR 731-030-0100(1); and

(b) Recommend approval or disapproval of the Transportation Project or Application.

(3) The Region Manager, the Public Transit Division Administrator or their designee will notify staff of the results of the evaluation of the Transportation Project and the Application.

(4) Staff will evaluate the economic , financial and creditworthiness criteria and seek assistance from other experts where appropriate.

Stat. Auth.: ORS 184.616, 184.619, 367.015 & 367.020
Stats. Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59, Sect. 350
Hist.: DOT 1-1997, f. & cert. ef. 1-17-97; DOT 7-2004, f. & cert. ef. 11-17-04; DOT 3-2012, f. & cert. ef. 6-27-12

731-030-0110

Approval Procedures

(1) Staff will combine the results of the evaluation completed under OAR 731-030-0100 into a combined score.

(2) Upon completion of its evaluation and scoring, Staff will forward the Application to the Chief Financial Officer with a recommendation for action based on an analysis of such factors as those listed in OAR 731-030-0110(3), the availability of funds, and OTIB cash flow. A recommendation, or any related approval, may include proposed modifications to the terms of the financial assistance requested by Applicant.

(3) To make a recommendation for approval, staff must find that:

(a) The Applicant and the Transportation Project qualify for assistance from the Infrastructure Fund according to the criteria established under OAR 731-030-0100(1).

(b) The proposed Transportation Project is feasible and a reasonable risk from practical and economic standpoints, and the proposed Infrastructure Loan has a reasonable prospect of repayment according to its terms.

(c) The Applicant’s financial resources and management capability appear to be adequate to assure the successful completion and operation of the Transportation Project.

(d) The Applicant is creditworthy.

(e) The Applicant can provide good and sufficient Collateral when appropriate to mitigate risk to the Infrastructure Fund.

(4) After review and consideration of the Staff recommendation, and subject to the availability of moneys in the Infrastructure Fund, the Chief Financial Officer may:

(a) For an Application for an Infrastructure Loan or Infrastructure Assistance for less than $1 million that will finance a Transportation Project that has been included in the STIP:

(A) Approve the request;

(B) Deny the request; or

(C) Forward a recommendation for action to the Commission.

(b) For any other Application:

(A) Deny the request; or

(B) Forward a recommendation for action to the Commission.

(5) The Commission will consider the recommendation by the Chief Financial Officer on any Application forwarded to it for action and may:

(a) Approve the request; or

(b) Deny the request.

Stat. Auth.: ORS 184.616, 184.619, 367.015 & 367.020
Stats. Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59, Sect. 350
Hist.: DOT 1-1997, f. & cert. ef. 1-17-97; DOT 7-2004, f. & cert. ef. 11-17-04; DOT 3-2012, f. & cert. ef. 6-27-12

731-030-0120

Project Agreements, Interest Rates and Charges

(1) For an Application approved under OAR 731-030-0110, the Department will make an Infrastructure Loan or provide Infrastructure Assistance from the Infrastructure Fund by entering into an Agreement with the Recipient.

(2) Notwithstanding any provisions of a Staff recommendation under OAR 731-030-0110(2), the Chief Financial Officer will make the final determination of the amount and type of financing awarded, interest rate (if applicable), value and types of Collateral, and schedule of payments, and may impose such further provisions as are necessary or appropriate to insure expenditure of the funds for the purposes set forth in the approved Application and as needed to protect the Infrastructure Fund. Such determination shall not be contrary to any provisions of an approval under OAR 731-030-0110(5)(a). In most cases, the interest rate will approximate the rate for similar obligations. In determining the interest rate for an Infrastructure Loan, the Chief Financial Officer may set the rate to reflect the evaluation of the Transportation Project, the effect of the rate upon the Applicant’s ability to finance the Transportation Project, the financial need of the Applicant, and the special circumstances of the Transportation Project.

(3) The Agreement the Department enters into with a Recipient regarding an Infrastructure Loan or Infrastructure Assistance will specify any fees or charges.

(4) The Chief Financial Officer will consider the financial status of the Infrastructure Fund and may delay final award of funds to any Recipient until sufficient funds are available in the Infrastructure Fund. The Department reserves the right to investigate and recommend other sources of funds for all or part of a proposed Transportation Project.

(5) Eligible uses of moneys obtained from or through the assistance of the Infrastructure Fund include, but are not limited to, the cost of acquiring, designing, building and installing any Transportation Project.

(6) A Recipient may request a modification or amendment to an executed Agreement. The request must be made in writing to the Chief Financial Officer for consideration by the Department. The Recipient will be responsible for all costs related to any modification or amendment of the Agreement.

Stat. Auth.: ORS 184.616, 184.619, 367.015 & 367.020
Stats. Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59, Sect. 350
Hist.: DOT 1-1997, f. & cert. ef. 1-17-97; DOT 7-2004, f. & cert. ef. 11-17-04; DOT 3-2012, f. & cert. ef. 6-27-12

731-030-0130

Accounting, Reporting and Auditing Require?ments

(1) The Department will maintain an accounting system for the Infrastructure Fund that complies with generally accepted accounting principles and practices.

(2) A Recipient must separately account for all moneys received from the Infrastructure Fund in project accounts in accordance with generally accepted accounting standards. The Department reserves the right to audit, monitor or otherwise review all project records.

(3) The Department will compile an annual report on the OTIB and make it available to Recipients no later than 90 days after the end of the federal fiscal year. The report will identify that year’s Recipients, the amounts, terms and conditions of the Infrastructure Loans and Infrastructure Assistance awarded and project categories.

(4) The Department, in cooperation with the Secretary of State, will conduct or cause to be conducted an annual independent financial and compliance audit of the OTIB’s operations. This audit may be conducted in accordance with the Single Audit Act of 1984. This audit will be completed within one year of the end of the state fiscal year.

(5) A Recipient must observe the requirements of state law, if applicable, for retaining and disposing of records.

Stat. Auth.: ORS 184.616, 184.619, 367.015, 367.020
Stats. Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59, Sect. 350
Hist.: DOT 1-1997, f. & cert. ef. 1-17-97; DOT 7-2004, f. & cert. ef. 11-17-04; DOT 3-2012, f. & cert. ef. 6-27-12

731-030-0150

Waivers

The Chief Financial Officer may waive non-statutory requirement of OAR 731-030-0010 to 731-030-0160 if such a waiver would serve to further the goals and objectives of the OTIB or the Infrastructure Fund.

Stat. Auth.: ORS 184.616, 184.619, 367.015 & 367.020
Stats. Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59, Sect. 350
Hist.: DOT 1-1997, f. & cert. ef. 1-17-97; DOT 7-2004, f. & cert. ef. 11-17-04; DOT 3-2012, f. & cert. ef. 6-27-12

731-030-0160

Protests

(1) If the Chief Financial Officer denies an Application for an Infrastructure Loan or Infrastructure Assistance, the Applicant may protest the decision to the Director. The protest must be in writing and must be filed within 30 calendar days of notification of the denial. The Director will notify the Applicant of the Director’s decision within 30 days of the receipt of the protest.

(2) If the Director affirms the denial of the Application, the Applicant may protest the Director’s decision to the Commission. The protest to the Commission must be in writing and must be filed within 30 calendar days of notification of the Director’s decision. The Commission will consider the protest at the earliest practical regular meeting of the Commission. The Applicant may appear before the Commission to present additional factual information in support of the Application.

(3) A Commission decision to deny an Application as described in OAR 731-030-0110(5) will not be subject to further administrative review.

Stat. Auth.: ORS 184.616, 184.619, 367.015 & 367.020
Stats. Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59, Sect. 350
Hist.: DOT 1-1997, f. & cert. ef. 1-17-97; DOT 7-2004, f. & cert. ef. 11-17-04; DOT 3-2012, f. & cert. ef. 6-27-12

731-030-0170

Interagency and Intra-agency Loans

(1) For purposes of OAR 731-030-0170, capitalized terms shall have the respective meanings given in ORS Chapter 367 and OAR 731-030-0030, unless the context clearly indicates otherwise.

(2) An Agency may apply for an Infrastructure Loan or Infrastructure Assistance by following the same procedures as an Applicant and submitting an Application as set forth in 731-030-0090. The Department will evaluate the Agency’s Application in the same manner provided in OAR 731-030-0100 and 731-030-0110, giving due consideration, however, to differences in funding sources, available Collateral and mission between an Agency and an Applicant that is a Municipality or Private Entity.

(3) A Department Borrower may request an Infrastructure Loan or Infrastructure Assistance by submitting an Application to the Chief Financial Officer or Staff. Staff will evaluate the Application in the same manner provided in OAR 731-030-0100 and 731-030-0110, giving due consideration, however, to differences in funding sources, available Collateral and mission between the Department Borrower and an Applicant that is an Agency, Municipality or Private Entity.

(4) For an Application approved under this OAR 731-030-0170, the Department will enter into an Agency Contract setting forth the amount of the Infrastructure Loan or Infrastructure Assistance and such additional terms and conditions as the Chief Financial Officer or Staff consider necessary including, but not limited to:

(a) For an Infrastructure Loan, the interest rate, installment payment amount and schedule, maturity date, and any revenues or other moneys pledged or dedicated to repayment of the Infrastructure Loan; and

(b) For an Infrastructure Loan or Infrastructure Assistance, the allowable purposes on which the moneys provided may be spent and the remedies available to the Department in the event the moneys are misspent.

(5) The Department may charge an Agency or Department Borrower for costs to review, process, and service an Application or the Infrastructure Loan or Infrastructure Assistance. An Agency or Department Borrower will pay:

(a) A loan fee of one percent of the amount of the Infrastructure Loan upon disbursement of Infrastructure Loan proceeds;

(b) Charges for credit reports, expert advice, legal fees, construction inspections, disbursement fees, loan servicing fees and appraisals; and

(c) Charges specified in the Agreement executed by the Agency or Department Borrower and the Department.

Stat. Auth.: ORS 184.616, 184.619, 367.015 & 367.020
Stats. Implemented: ORS 367.010-367.060 & US Code, PL 104-59, Sect. 350
Hist.: DOT 3-2012, f. & cert. ef. 6-27-12

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