Dept. of Transportation_731

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The Oregon Administrative Rules contain OARs filed through January 15, 2010

DEPARTMENT OF TRANSPORTATION

DIVISION 30

OREGON TRANSPORTATION INFRASTRUCTURE FUND

731-030-0010

Purpose of the Rules

OAR 731-030-0010 to 731-030-0160 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

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.

731-030-0030

Definitions

For the purposes of OAR 731-030-0010 through 731-030-0160, the following definitions apply, unless the context clearly indicates otherwise:

(1) "Applicant" means an Agency, a Municipality or any other entity authorized by law to obtain an Infrastructure Loan or Infrastructure Assistance.

(2) "Application" means the form, prescribed by the Department, and all supplemental attachments, exhibits or other supporting papers that the Applicant completes and provides to the Oregon Transportation Infrastructure Bank.

(3) "Agency", as defined in ORS 367.010(1), means any department, agency or commission of the State of Oregon.

(4) "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.

(5) "Bond", as defined in ORS 367.010(2), means an evidence of indebtedness including, but not limited to, a bond, a note, an obligation, a loan agreement, a financing lease, a financing agreement or other similar instrument or agreement.

(6) "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.

(7) "Bond Debt Service", as defined in ORS 367.010(3), means payment of:

(a) Principal, interest, premium, if any, or purchase price of a Bond;

(b) Amounts due to a Credit Enhancement provider authorized by ORS Chapter 367;

(d) Amounts due under an Agreement for exchange of interest rates if designated by the State Treasurer or the Department.

(8) "Chief Financial Officer" means the fiscal officer designated under ORS 184.637 who is also the Manager of ODOT Financial Services or designated staff.

(9) "Collateral" means real or personal property subject to a pledge, lien or security interest, and includes any property included in the definition of collateral in ORS 79.0102(1).

(10) "Commission" means the Oregon Transportation Commission.

(11) "Credit Enhancement", as defined in ORS 367.010(4), means a letter of credit, line of credit, bond insurance policy, standby purchase agreement, surety bond or other device or facility used to enhance the creditworthiness, liquidity or marketability of a Bond.

(12) "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.

(13) "Department" or "ODOT" means the Oregon Department of Transportation.

(14) "Director" means the director of the Department.

(15) "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.

(16) "Infrastructure Assistance", as defined in ORS 367.010(6), means any use of moneys in the Oregon Transportation Infrastructure Fund, other than an Infrastructure Loan, to provide financial assistance for Transportation Projects. The term includes, but is not limited to, use of moneys in the Infrastructure Fund to finance leases, fund reserves, make grants, pay issuance costs or provide Credit Enhancement or other security for Bonds issued by a public entity to finance Transportation Projects.

(17) "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.

(18) "Infrastructure Bonds", as defined in ORS 367.010(7), means bonds authorized by ORS 367.030, 367.555 to 367.600 or 367.605 to 367.670 that are issued to fund Infrastructure Loans and the proceeds of which are deposited in the Infrastructure Fund.

(19) "Infrastructure Fund", as defined in ORS 367.010(8), means the Oregon Transportation Infrastructure Fund.

(20) "Infrastructure Loan", as defined in ORS 367.010(9), means a loan of moneys in the Infrastructure Fund to finance a Transportation Project.

(21) "Municipality", as defined in ORS 367.010(10), means a city, county, road district, school district, special district, metropolitan service district, the Port of Portland, or an intergovernmental entity organized under ORS 190.010.

(22) "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.

(23) "Oregon Transportation Infrastructure Fund" means the fund established in ORS 367.015.

(24) "Recipient" means an Applicant that has received an Infrastructure Loan or Infrastructure Assistance or a combination thereof.

(25) "Region" means one of the geographic areas established by the Department to administer transportation programs.

(26) "Region Manager" means the administrative head of a Region or designated staff.

(27) "Staff" means Department staff assigned by the Chief Financial Officer to manage the day-to-day operations of the OTIB and the Infrastructure Fund.

(28) "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.

(29) "Transportation Project", as defined in ORS 367.010(11), means any project or undertaking that facilitates any mode of transportation within this State. Transportation Projects include, but are not limited to, projects for highway, transit, rail and aviation capital infrastructure, bicycle and pedestrian paths, bridges and ways, and other projects that facilitate the transportation of materials, animals or people.

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

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 transportation 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 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.

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.

(2) The Department may expend funds from the Infrastructure Fund to make Infrastructure Loans.

(3) The Department may expend funds from the Infrastructure Fund to provide Infrastructure Assistance.

(4) The Department may expend funds from the Infrastructure Fund to pay the Department's or another public entity's costs for Transportation Projects.

(5) The Department may expend funds from the Infrastructure Fund to establish a Debt Service Reserve to support the credit extensions to a Recipient or otherwise to ensure repayment of loan guarantees, and to reduce the interest rate paid on loans and Bonds.

(6) The Department may expend moneys from the Fund to pay the Bond Debt Service for Infrastructure Bonds and pay the costs of issuance and other costs related to Infrastructure Bonds. Such expenditures may include the payment of all costs associated with the issuance of Infrastructure Bonds including but not limited to Bond Counsel and Financial Advisor fees, underwriter fees and discounts, trustee or paying agent fees, credit enhancement fees, and printing and publishing, and other costs.

731-030-0080

Applicant's Handbook

(1) The Department will make available guidelines that address application procedures, Applicant eligibility, Application evaluation criteria as set forth in OAR 731-030-0100(1), types of Infrastructure Loans and Infrastructure Assistance available, financing rates, terms and limits and other applicable information.

(2) The Department may revise the guidelines as needed.

(3) The guidelines may be made available to Applicants in electronic or printed formats.

731-030-0090

Application Procedures

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.

731-030-0100

Application Evaluation Procedures

(1) The Department will establish specific information and uniform evaluation criteria that will be used to qualify and evaluate the Application and to ascertain the credit strength of the Applicant. The evaluation will include an examination of Application information to determine the extent that an Applicant and the proposed Transportation Project comply with these requirements or standards:

(a) The Transportation Project must conform to the local transportation plan and to state land use laws and satisfy all appropriate federal, state and local planning and programming requirements.

(b) The Transportation Project must meet any appropriate design standards.

(c) The Transportation Project will be constructed on a faster time schedule than conventional funding would allow. Or OTIB funding 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 must identify a revenue stream adequate to repay an Infrastructure Loan or meet the terms of any Infrastructure Assistance to be provided.

(g) The Transportation Project will attract new or less conventional capital to transportation infrastructure funding.

(h) 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.

(i) The Transportation Project will support the community's economic development.

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

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

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

(b) Recommend approval or disapproval of each project or proposal.

(3) The Region Manager, the Public Transit Division Administrator or other designated party will notify the Staff of the results of the evaluations.

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

731-030-0110

Approval Procedures

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

(2) Upon completion of its scoring, Staff will forward the Application and related evaluations to the Chief Financial Officer with a recommendation for action on the request based on an analysis of such factors as the combined score, statewide equity, the availability of funds, and OTIB cash flow. Staff may request additional information from an Applicant or others to assist in making a recommendation. A recommendation, or any related approval, may include proposed modifications to an Applicant's request for financial assistance.

(3) To make a recommendation for approval, the 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 any 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 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 Infrastructure Loan or Infrastructure Assistance requests for less than $1 million that will finance projects that have been included in the STIP:

(A) Approve the request;

(B) Deny the request; or

(b) For all other requests:

(A) Deny the request; or

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

(c) For each request approved or denied, the Chief Financial Officer will forward a summary of the request to the Commission.

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

(a) Approve the request; or

(b) Deny the request.

731-030-0120

Project Agreements, Interest Rates and Charges

(1) For all requests approved under OAR 731-030-0110, the Department will make Infrastructure Loans 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, type, interest rate, amounts and types of Collateral, schedule of payments, and other terms and conditions of financing awarded to an Applicant and such further provisions necessary or appropriate to insure expenditure of the funds for the purposes set forth in the approved Application. Such determination shall not be contrary to any provisions of an approval under OAR 731-030-0110(5)(a). In most cases for Agencies and Municipalities, interest rates will approximate tax exempt rates 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 and the effect of the rate upon the Applicant's ability to finance the Transportation Project.

(3) The Chief Financial Officer will set forth in each Agreement 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. 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, contracting, 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.

731-030-0130

Accounting, Reporting and Auditing Requirements

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

(2) Recipients 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 Infrastructure Loans and Infrastructure Assistance 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 must be completed within one year of the end of the state fiscal year.

(5) Recipients must observe the requirements of state law for retaining and disposing of records.

731-030-0150

Waivers

The Chief Financial Officer may waive non-statutory requirements 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.

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. The Commission's decision will not be subject to any further administrative review.

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

The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use

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