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Oregon Bulletin

February 1, 2014

Oregon Business Development Department, Chapter 123

Rule Caption: These rule amendments relate to the Water Fund administered by the Infrastructure Finance Authority.

Adm. Order No.: OBDD 12-2013

Filed with Sec. of State: 12-30-2013

Certified to be Effective: 1-1-14

Notice Publication Date: 12-1-2013

Rules Amended: 123-043-0010, 123-043-0015, 123-043-0025, 123-043-0035, 123-043-0041, 123-043-0055, 123-043-0075, 123-043-0102, 123-043-0115

Subject: These rule amendments result from SB 181 in the 2013 Regular Legislative Session. The maximum term limits on a loan awarded by the Infrastructure Finance Authority for the Water Fund has been changed from 25 years to 30 years.

   Language relating to the criteria for technical assistance grants has been amended to clarify what a grant shall be made for and how often.

   Other minor housekeeping changes have been made.

Rules Coordinator: Mindee Sublette—(503) 986-0036

123-043-0010

Definitions

For the purposes of these rules additional definitions may be found in Procedural Rules, OAR 123-001. As used in this division of administrative rules, the following terms shall have the following meaning, unless the context clearly indicates otherwise:

(1) “DEQ” means the State of Oregon Department of Environmental Quality.

(2) “Facilities” means something that is built or installed to perform some particular function.

(3) “Fund” means the water fund created by ORS 285B.563.

(4) “Grant” means an award to a municipality of monies that can be used to reimburse eligible project costs. Grant funds are not required to be repaid when contract conditions are met.

(5) “Non-compliance” means the municipality has received a notice of non-compliance with:

(a) Drinking water quality standards administered by the Oregon Health Authority Drinking Water Services; or

(b) Water quality statutes, rules, orders, or permits administered by DEQ or the Environmental Quality Commission.

(6) “Project” means only a project for constructing or improving a drinking water system, or a project for constructing or improving a system for waste water collection or treatment, including storm drainage systems as defined in ORS 285B.560(4) and (5).

(7) “System” means the interconnected facilities that are required or useful for performing the required function.

(8) “Technical Assistance” means preliminary engineering or planning; legal, financial, and economic investigations, reports and studies to determine the feasibility of a Project. Technical Assistance also means required Water Master Plans or Wastewater Facilities Plans needed to allow communities to properly plan for the future.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 285B.563 & 285A.075

Stats. Implemented: ORS 285B.560 - 285B.599

Hist.: EDD 10-1993(Temp), f. & cert. ef. 10-4-93; EDD 7-1994, f. & cert. ef. 4-7-94; EDD 7-2002, f. & cert. ef. 4-26-02; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 14-2008(Temp), f. & cert. ef. 4-9-08 thru 10-5-08; EDD 32-2008, f. 10-2-08, cert. ef. 10-3-08; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef. 1-14-10 thru 7-13-10; Administrative correction 7-27-10; OBDD 6-2011(Temp), f. & cert. ef. 11-3-11 thru 4-30-12; OBDD 3-2012, f. 3-30-12, cert. ef. 4-2-12; OBDD 12-2013, f. 12-30-13, cert. ef. 1-1-14

123-043-0015

Eligible Project Costs and Activities

(1) Eligible costs include the reasonable costs as determined by the Authority for eligible program activities and include:

(a) Project development costs;

(b) Construction contingencies as approved by the Authority for a project;

(c) Financing costs associated with the department’s financing including capitalized interest, issuance and debt service reserve costs, when such costs are incurred in funding a project;

(d) Costs incurred by the municipality prior to a non-technical assistance award if such costs are allowable under the Department’s adopted policy for reimbursement of pre-award costs; and

(e) At the discretion of the Authority, reasonable, new project management costs but not expenses for current staff that are already included in the municipality’s adopted budget.

(2) Eligible project and program activities include the construction, improvement or expansion of the following facilities owned and operated either by the municipality or under a management contract or an operating agreement with the municipality:

(a) Domestic drinking water systems including all facilities necessary for source, supply, filtration, treatment, storage, transmission, and metering;

(b) Wastewater systems including all facilities necessary for collecting; conveying, pumping, treating and disposing of sanitary sewage, including correction of infiltration and inflow through replacement of lines, sliplining, or other corrective processes approved by the Authority;

(c) Storm drainage systems including all facilities necessary for controlling, collecting, conveying, treating and discharging of storm water;

(d) The acquisition of real property directly related to or necessary for the proposed project; and

(e) Project development and the associated engineering, architectural and planning work involved in developing the facilities listed in (1) above, including technical assistance and support activities necessary to the construction of a project as determined by the Authority.

Stat. Auth.: ORS 285B.563

Stats. Implemented: ORS 285B.560 - 285B.599

Hist.: EDD 7-2002, f. & cert. ef. 4-26-02; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef. 1-14-10 thru 7-13-10; OBDD 30-2010, f. 6-30-10, cert. ef. 7-1-10; OBDD 12-2013, f. 12-30-13, cert. ef. 1-1-14

123-043-0025

Ineligible Project Costs

Expenses and costs expressly allowed by OAR 123-043-0015 are eligible for reimbursement from the fund. All other costs, including but not limited to those listed below, are ineligible for reimbursement:

(1) Costs incurred for facilities that are or will be privately owned.

(2) Cost of purchase of general purpose motor vehicles and other equipment not directly related to the project.

(3) Cost of purchase of off-site property for uses not directly related to the project; and

(4) Project operating or maintenance expenses.

Stat. Auth.: ORS 285B.563 & 285A.075

Stats. Implemented: ORS 285B.560 - 285B.599

Hist.: EDD 7-2002, f. & cert. ef. 4-26-02; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef. 1-14-10 thru 7-13-10; Administrative correction 7-27-10; OBDD 42-2010, f. 11-30-10, cert. ef. 12-1-10; OBDD 6-2011(Temp), f. & cert. ef. 11-3-11 thru 4-30-12; OBDD 3-2012, f. 3-30-12, cert. ef. 4-2-12; OBDD 12-2013, f. 12-30-13, cert. ef. 1-1-14

123-043-0035

Criteria and Limitations for Funding — Non-Technical Assistance Projects

(1) The intent of the Legislature was to provide funding to municipalities to assist in complying with the Safe Drinking Water Act and the Clean Water Act. Therefore, priority will be given to projects necessary to ensure that municipal water and wastewater systems comply with the requirements of:

(a) Drinking water quality standards administered by the Oregon Health Authority Drinking Water Services; or

(b) Water quality statutes, rules, orders, or permits administered by DEQ or the Environmental Quality Commission.

(2) If a municipal water or wastewater system has not been issued a notice of non-compliance by the governing regulatory authority, the Authority may determine that a proposed project is eligible for assistance upon a finding that one of the following has been met:

(a) The Authority deems it reasonable and prudent that an award from the fund will assist in bringing the drinking water, storm water or wastewater system into compliance with the requirements of the Safe Drinking Water Act, the Clean Water Act, those requirements proposed to take effect within the next two years, or the requirements of other regulatory agencies recognized by the Authority as having responsibility for the protection of water quality and the supply of clean drinking water; or

(b) A recent letter has been issued by the appropriate regulatory authority, typically the Department of Human Services Drinking Water Program, DEQ, or its contracted agent, which indicates a high probability that the system owner will soon be notified of non-compliance with either the Safe Drinking Water Act or the Clean Water Act.

(3) The Authority generally will not fund projects without the conditions of 123-043-0035(2) being met.

(4) The project must be consistent with the acknowledged local comprehensive plan.

(5) The Authority encourages regionalization whenever feasible.

(6) The Authority encourages asset management planning where possible.

(7) The Authority will apply approved prioritization utilizing criteria listed in this section when reviewing project information contained in project notification intake form.

Stat. Auth.: ORS 285B.563 & 285A.075

Stats. Implemented: ORS 285B.560 - 285B.599

Hist.: EDD 7-2002, f. & cert. ef. 4-26-02; EDD 1-2003(Temp) f. 2-20-03, cert. ef. 2-24-03 thru 6-30-03; EDD 8-2003(Temp), f. & cert. ef. 9-24-03 thru 3-22-04; EDD 9-2004, f. & cert. ef. 3-22-04; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 14-2008(Temp), f. & cert. ef. 4-9-08 thru 10-5-08; EDD 32-2008, f. 10-2-08, cert. ef. 10-3-08; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef. 1-14-10 thru 7-13-10; OBDD 30-2010, f. 6-30-10, cert. ef. 7-1-10; OBDD 12-2013, f. 12-30-13, cert. ef. 1-1-14

123-043-0041

Criteria and Limitations for Funding — Technical Assistance Projects

(1) Awards are available to municipalities with populations of less than 15,000 people for technical assistance. If the project is for a facility plan or study required by a regulatory agency, the municipality is not required to document non-compliance. Other Technical Assistance projects may be considered after consulting with and receiving documentation of non-compliance from the regulatory agency.

(2) Technical assistance grants and loans are subject to the following limitations:

(a) A grant of up to $20,000 per water, sewer, and storm drainage system may be awarded once every three (3) years for a project;

(b) A loan of up to $50,000 may be awarded for a project. Interest shall be at 75 percent of the annual interest rate for other loans made in accordance with the requirements of this OAR chapter 123, division 43. The loan term shall not exceed seven years;

(c) Pre-award expenses are not eligible for reimbursement;

(d) No more than $600,000 shall be expended from the fund on technical assistance in any biennium. When awarding a grant under this section the Authority will not first consider a municipality’s ability to repay a loan; and

(e) The application must meet the requirements listed in OAR 123-043-0075(2).

(3) The loan shall be a full faith and credit obligation which is payable from any taxes which the municipality may levy within the limitations of Article XI of the Oregon Constitution and all legally available revenues and other funds of the municipality. A pledge of specific revenues of the municipality may be pledged in addition to the foregoing.

Stat. Auth.: ORS 285B.563 & 285A.075

Stats. Implemented: ORS 285B.560 - 285B.599

Hist.: OBDD 2-2010(Temp), f. & cert. ef. 1-14-10 thru 7-13-10; OBDD 30-2010, f. 6-30-10, cert. ef. 7-1-10; OBDD 12-2013, f. 12-30-13, cert. ef. 1-1-14

123-043-0055

Loan and Grant Information

(1) The Authority may award financing in a manner that maximizes the use of available resources and maintains the desired credit standards of the fund. The Authority shall determine the amount, type, interest rate and terms of any financing awarded. It may offer an alternate mix or lower amount of assistance than requested. The amount of the award may be the minimum amount that the department determines is necessary to enable the project to proceed, and the Authority may investigate and recommend other sources of funds for all or part of a proposed project. Projects that the Authority determines are not financially feasible will not be funded.

(2) Loans for non-technical assistance projects:

(a) The term of a loan is limited to the usable life of the contracted project, or 30 years from the year of project completion, whichever is less.

(b) Except as provided elsewhere in OAR chapter 123, division 43, the interest rate on a loan is based on market conditions for similar debt and is set at the time of the award.

(c) The interest rate on a bond funded loan is equal to the coupon rates on the state revenue bonds funding the loan. Until the state revenue bonds funding the loan are sold, the municipality will pay interest at a rate established by the Authority on loan funds disbursed to the municipality.

(d) Maximum amount for a loan for a project will be determined by the Authority on the basis of the department’s financial analysis of the municipality’s capacity for repaying the debt, the availability of moneys in the fund and prudent fund management but will not exceed $10,000,000.

(e) The loan shall be a full faith and credit obligation which is payable from any taxes which the municipality may levy within the limitations of Article XI of the Oregon Constitution and all legally available revenues and other funds of the municipality. A pledge of specific revenues of the municipality may be required by the Authority to be pledged in addition to the foregoing.

(3) Grants for non-technical assistance projects: When making a determination to award a grant, the Authority will apply prudent fiscal management of the fund in order to manage limited funding resources. The Authority shall determine if the project meets the criteria of a grant and make a determination on the amount of the grant based on financial need or other special circumstances. In making its determination, the Authority shall apply the following criteria:

(a) The Authority’s financial analysis determines that the municipality’s financial resources, including its borrowing capacity, are insufficient to finance the project;

(b) The projected annual residential utility rate for the system is at least equivalent to a minimum rate as determined by the Authority’s policy. The Authority’s policy may include such factors as the most recent U.S. Census data on median household income and annual adjustments for inflation since the most recent census;

(c) Only a distressed community is eligible for a grant award; and

(d) Grants may be awarded up to $750,000 based on the Department’s policy, but not more than 50 percent of the financial award from the fund.

Stat. Auth.: ORS 285B.563 & 285A.075

Stats. Implemented: ORS 285B.560 - 285B.599

Hist.: EDD 7-2002, f. & cert. ef. 4-26-02; EDD 1-2003(Temp) f. 2-20-03, cert. ef. 2-24-03 thru 6-30-03; EDD 8-2003(Temp), f. & cert. ef. 9-24-03 thru 3-22-04; EDD 9-2004, f. & cert. ef. 3-22-04; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 14-2008(Temp), f. & cert. ef. 4-9-08 thru 10-5-08; EDD 32-2008, f. 10-2-08, cert. ef. 10-3-08; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef. 1-14-10 thru 7-13-10; OBDD 30-2010, f. 6-30-10, cert. ef. 7-1-10; OBDD 12-2013, f. 12-30-13, cert. ef. 1-1-14

123-043-0075

Application Review and Approval

(1) For a non-technical assistance project, the Authority must make the following determinations:

(a) The municipality shall document that a professional engineer registered in the State of Oregon has certified in an engineering report, such as a Master Plan, that the proposed project is feasible, is the most cost effective solution, and adequately serves the applicable land uses in both the short and long term;

(b) The loan is secured by the pledge of utility revenues or other revenues or payments from owners of specially benefited properties, and these revenues or payments are sufficient, when considered with other security, to assure repayment of the loan and the municipality has certified to the Authority that there will be adequate funds available to repay the loans made to the municipality from the fund;

(c) Moneys in the appropriate accounts of the fund are or will be available for the project;

(d) The municipality is willing and able to enter into a contract with the Authority;

(e) The project is consistent with the requirements governing assistance from the fund. If the Authority determines that the municipality or the proposed project does not meet the requirements of this OAR 123-043-0075, the Authority may reject an application or require further documentation from the municipality; and

(f) The project is ready to begin and the municipality has committed in writing that, if awarded the assistance it shall proceed immediately.

(2) To award assistance from the fund for a technical assistance project, the Authority must make the following determinations:

(a) The technical assistance activities must be for a project that is eligible under the criteria listed in 123-043-0041; and

(b) The municipality has, or has demonstrated the ability to secure, the administrative capacity to undertake and complete the project.

Stat. Auth.: ORS 285B.563 & 285A.075

Stats. Implemented: ORS 285B.560 - 285B.599

Hist.: EDD 7-2002, f. & cert. ef. 4-26-02; EDD 1-2003(Temp) f. 2-20-03, cert. ef. 2-24-03 thru 6-30-03; EDD 8-2003(Temp), f. & cert. ef. 9-24-03 thru 3-22-04; EDD 9-2004, f. & cert. ef. 3-22-04; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 14-2008(Temp), f. & cert. ef. 4-9-08 thru 10-5-08; EDD 32-2008, f. 10-2-08, cert. ef. 10-3-08; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 30-2010, f. 6-30-10, cert. ef. 7-1-10; OBDD 12-2013, f. 12-30-13, cert. ef. 1-1-14

123-043-0102

Eligibility Criteria for State Revenue Bond Loans

The Authority shall apply the following standards for determining the eligibility of projects for state revenue bond financing:

(1) Loan repayment must be secured by a full faith and credit pledge of the municipality;

(2) The loan must be of sufficient size as determined by the Authority;

(3) The loan must be fully amortized over its term with fixed annual principal and interest payments, and the term of the loan must not exceed the usable life of the contracted project or 30 years from the year of project completion, whichever is less;

(4) The loan must conform to the requirements of the bond indenture for the state revenue bonds; and

(5) The loan and the municipality must meet the minimum underwriting criteria for state revenue bond financing as established by Department policies.

Stat. Auth.: ORS 285B.563 & 285A.075

Stats. Implemented: ORS 285B.560 - 285B.599

Hist.: EDD 11-2006, f. & cert. ef. 11-3-06; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 30-2010, f. 6-30-10, cert. ef. 7-1-10; OBDD 12-2013, f. 12-30-13, cert. ef. 1-1-14

123-043-0115

Appeals and Exceptions

(1) Appeals of decisions made by the municipality regarding a project must be made at the local level in accordance with the requirements and procedures of the municipality.

(2) The director or the director’s designee will consider appeals of the Authority’s funding decisions. Only the municipality may appeal. Appeals must be submitted in writing to the director within 30 days of the event or action that is being appealed. A project that would have been funded but for a technical error in the Authority’s review of the application, as determined by the director, will be funded as soon as sufficient moneys become available in the fund, provided the project is still viable. The director or the director’s designee decision is final.

(3) The director or the director’s designee may waive any non-statutory requirements of OAR chapter 123, division 43, if it is demonstrated such a waiver will further the goals and objectives of the program.

Stat. Auth.: ORS 285B.563 & 285A.075

Stats. Implemented: ORS 285B.560 - 285B.599

Hist.: EDD 7-2002, f. & cert. ef. 4-26-02; EDD 11-2006, f. & cert. ef. 11-3-06; EDD 25-2009, f. 11-30-09, cert. ef. 12-1-09; OBDD 2-2010(Temp), f. & cert. ef. 1-14-10 thru 7-13-10; Administrative correction 7-27-10; OBDD 6-2011(Temp), f. & cert. ef. 11-3-11 thru 4-30-12; OBDD 3-2012, f. 3-30-12, cert. ef. 4-2-12; OBDD 12-2013, f. 12-30-13, cert. ef. 1-1-14


Rule Caption: This new division of rules relates to the Oregon Seismic Rehabilitation Grants Program.

Adm. Order No.: OBDD 13-2013

Filed with Sec. of State: 12-30-2013

Certified to be Effective: 1-1-14

Notice Publication Date: 12-1-2013

Rules Adopted: 123-051-0100, 123-051-0200, 123-051-0300, 123-051-0400, 123-051-0500, 123-051-0600, 123-051-0700, 123-051-0800, 123-051-0900, 123-051-1000, 123-051-1100, 123-051-1200

Subject: The 2013 Legislature passed SB 813 transferring the Oregon Seismic Rehabilitation Grants Program from the Office of Emergency Management to the Oregon Business Development Department’s Infrastructure Finance Authority. This new division of rules provides criteria, processes and standards for the program.

Rules Coordinator: Mindee Sublette—(503) 986-0036

123-051-0100

Purpose

(1) The Infrastructure Finance Authority, pursuant to Oregon Revised Statutes ORS 401.910, shall develop and administer grant programs for the seismic rehabilitation of critical public buildings.

(2) The funds for the seismic rehabilitation of critical public buildings under the grant program are provided from the issuance of bonds pursuant to the authority provided in Articles XI-M and XI-N of the Oregon Constitution.

Stat. Auth.: ORS 285A.093, 285A.098, 286A.760 – 286A.772, 401.910 & 2013 OL Ch. 782

Stats. Implemented: ORS 285A.098, 286A.760 – 286A.772, 401.910 & 2013 OL Ch. 782

Hist.: OBDD 13-2013, f. 12-30-13, cert. ef. 1-1-14

123-051-0200

Definitions

(1) “Acute inpatient care facility” means a licensed hospital with an organized medical staff, with permanent facilities that include inpatient beds, with comprehensive medical services, including physician services and continuous nursing services under the supervision of registered nurses, to provide diagnosis and medical or surgical treatment primarily for, but not limited to acutely ill patients and accident victims. “Acute inpatient care facility” includes the Oregon Health and Science University.

(2) “Applicant” means a school district, community college, education service district, higher education institution, police, sheriff, fire, hospital which is applying for a grant from the Seismic Rehabilitation program.

(3) “Authority” means the Infrastructure Finance Authority within the Oregon Business Development Department.

(4) “Collapse Prevention” means a building at this performance level is capable of maintaining gravity loads though structural damage is severe and risk of falling hazard is high as set forth in the American Society of Civil Engineers Standard for Seismic Rehabilitation of Existing Buildings newest edition.

(5) “Critical Public Buildings” includes hospital buildings with acute inpatient care facilities, fire stations, police stations, sheriffs’ offices, other facilities used by state, county, district, or municipal law enforcement agencies and buildings with a capacity of 250 or more persons that are routinely used for student activities by kindergarten through grade 12 public schools, community colleges, education service districts and institutions of higher education.

(6) “Distressed or Impoverished” means all Oregon cities and counties designated by Oregon Business Development Department as distressed or impoverished by established methodology.

(7) “Education Service District (ESD)” means a district created under ORS 334.010 that provides regional educational services to component school districts.

(8) “Grant Program” means The Seismic Rehabilitation Grant Program (SRGP).

(9) “Grant Selection Committee” means the committee that is charged with evaluating grant applications for the purpose of determining which projects receive funding. The grant selection committee membership shall include representatives of Oregon Department of Education, The Department of Human Services, The Office of Emergency Management/Oregon Military Department, The State Department of Geology and Mineral Industries, Oregon Seismic Safety Policy Advisory Commission, The Oregon Department of Administrative Services, The Oregon Fire Chiefs’ Association, The Oregon Association of Chiefs of Police, Community Colleges and Workforce Development, Oregon University System, The Oregon Association of Hospitals and Health Systems, The Confederation of Oregon School Administrators and others who possess expertise in construction, construction grants and structural design as determined by the Authority.

(10) “Grantee” means applicant awarded grant funds for seismic rehabilitation project.

(11) “Holistic Project” means a project emphasizing the whole building instead of the separation of its parts.

(12) “Immediate Occupancy” means a building at this performance level is expected of being sufficiently functional for occupancy as set forth in the American Society of Civil Engineers Standard for Seismic Rehabilitation of Existing Buildings newest edition.

(13) “Life Safety” means a building at this performance level is expected to present low risk of life threatening injury to building inhabitants as set forth in the American Society of Civil Engineers Standard for Seismic Evaluation of Existing Buildings newest edition.

(14) “Match” is any contribution to a project that is non-seismic grant funds. Match may include:

(a) Cash on hand or cash that is pledged to be on hand prior to commencement of the project; and,

(b) Secured funding commitments from other sources.

(15) “Project” means seismic rehabilitation activity (or activities) to be performed on a building that is eligible for assistance from the Seismic Rehabilitation Grant Program.

(16) “Seismic Rehabilitation” means construction of structural improvements to a building that results in the increased capability of the building to resist earthquake forces and that is based on standards adopted by the State of Oregon or by local governments.

(17) “Structural” means components of a building that support or resist loads. Parts of a building that bear weight.

(18) “Tsunami Inundation Zone” means for purposes of the SRGP, the area depicted as the tsunami inundation zone in Oregon Department of Geology and Mineral Industries Open-File Reports O-95-09 through O-95-38, O-95-43 through O-95-66 and O-97-31 through O-97-32.

(19) “Useful Life” means the length of time that the building or structure is expected to be used, or 30 years, whichever is greater.

Stat. Auth.: ORS 285A.093, 285A.098, 401.910 & 2013 OL Ch. 782

Stats. Implemented: ORS 285A.093, 285A.098 & 401.910

Hist.: OBDD 13-2013, f. 12-30-13, cert. ef. 1-1-14

123-051-0300

Eligible Applicants

The following are eligible to apply for a Seismic Rehabilitation Grant, except those determined to be ineligible by the Authority because of nonperformance under a prior Seismic Rehabilitation Grant contract:

(1) All hospital buildings with acute inpatient care facilities, fire stations, police stations, sheriffs’ offices, other facilities used by state, county, district or municipal law enforcement agencies.

(2) Kindergarten through grade 12 public schools, community colleges, education service districts and institutions of higher education buildings with a capacity of 250 or more persons that are routinely used for student activities and are owned by the State Board of Higher Education, a school district, an education service district, a community college district or a community college service district.

Stat. Auth.: ORS 285A.093, 285A.098, 401.910 & 2013 OL Ch. 782

Stats. Implemented: ORS 285A.093, 285A.098 & 401.910

Hist.: OBDD 13-2013, f. 12-30-13, cert. ef. 1-1-14

123-051-0400

Program Information

(1) The Authority shall prepare a Grant Application Package. The application package may contain a guidance document, application forms, and other supplementary information that may help eligible applicants prepare grant applications.

(2) The guidance document will include a description of eligibility criteria, and ranking factors used to evaluate and select applications for funding.

(3) The Grant Application Package on file with the Authority is incorporated as part of these rules by reference.

(4) The Authority will provide to Seismic Rehabilitation grantee a Grant Contract which specifies legal requirements for grant management, reporting, and record keeping, and the Authority’s monitoring and grant closeout procedures.

(5) The Authority shall administer Seismic Rehabilitation Grants in compliance with the requirements of applicable statutes, rules, and the Grant Guidance Document.

Stat. Auth.: ORS 285A.093, 285A.098, 401.910 & 2013 OL Ch. 782

Stats. Implemented: ORS 285A.093, 285A.098 & 401.910

Hist.: OBDD 13-2013, f. 12-30-13, cert. ef. 1-1-14

123-051-0500

Program Sanctions

The grantee shall be responsible for taking all actions necessary to enforce the terms of the grant contract against any private or public participant who fails to comply with applicable provisions of the grant contract, and to recover on behalf of the state any liabilities that may arise as the result of the breach of the grant contract by any participant. Nothing in this paragraph shall restrict the state’s rights to enforce independently the terms of any grant contract or to recover any sums that may become due as the result of a breach of such a contract.

Stat. Auth.: ORS 285A.093, 285A.098, 401.910 & 2013 OL Ch. 782

Stats. Implemented: ORS 285A.093, 285A.098 & 401.910

Hist.: OBDD 13-2013, f. 12-30-13, cert. ef. 1-1-14

123-051-0600

Project Eligible Activities

Projects must meet the following criteria to be eligible for this program:

(1) Education building rehabilitation to life safety seismic safety performance level as defined in OAR 123-051-0200(14); or

(2) Emergency services building rehabilitation to immediate occupancy seismic safety performance level as defined in OAR 123-051-0200(13).

Stat. Auth.: ORS 285A.093, 285A.098, 401.910 & 2013 OL Ch. 782

Stats. Implemented: ORS 285A.093, 285A.098 & 401.910

Hist.: OBDD 13-2013, f. 12-30-13, cert. ef. 1-1-14

123-051-0700

Project Ineligible Activities

Project ineligible activities include, but are not limited to:

(1) The demolition and rebuild of an existing critical public building.

(2) Rehabilitation to a building located in the Tsunami Inundation Zone as defined in OAR 123-051-0200(19).

(3) Rehabilitation of a building located in the 100 flood zone.

(4) Partial rehabilitation of a building that does not holistically address all known seismic deficiencies, as defined in OAR 123-051-0200(12).

(5) Reimbursement for already budgeted staff and routine or ongoing expenses of the recipient.

Stat. Auth.: ORS 285A.093, 285A.098, 401.910 & 2013 OL Ch. 782

Stats. Implemented: ORS 285A.093, 285A.098 & 401.910

Hist.: OBDD 13-2013, f. 12-30-13, cert. ef. 1-1-14

123-051-0800

Application Submittal, Review and Approval

(1) The Authority shall announce deadlines for submitting applications, how to obtain an application form, and required supplemental documents.

(2) An eligible critical public building may submit an application after consulting with the Authority on a preliminary determination of eligibility and otherwise follow the Authority’s procedures for submitting applications. The application must be in the form provided by the Authority and must contain or be accompanied by such information as the Authority may require. The Authority will process only completed applications.

(3) Upon receipt of signed application, the Authority will notify the applicant within 30 days as to the receipt of the application.

(4) Upon receipt of a completed application, the Authority will evaluate the application using ranking factors and point values and will provide recommendations to the Grant Selection Committee to determine the project’s prioritization ranking during a public meeting.

(5) Once a completed application is evaluated for a grant award, the applicant will be notified within 90 days of the status of their grant application.

Stat. Auth.: ORS 285A.093, 285A.098, 401.910 & 2013 OL Ch. 782

Stats. Implemented: ORS 285A.093, 285A.098 & 401.910

Hist.: OBDD 13-2013, f. 12-30-13, cert. ef. 1-1-14

123-051-0900

Project Administration

(1) The Authority and the Applicant must execute a grant contract prior to disbursal of grant funds.

(2) Documentation of project costs incurred by entity must be submitted to the Authority prior to disbursal of funds.

(3) Disbursal of grant funds to entity will be made on the schedule determined by the Authority.

(4) Prior to final disbursement, the Authority will review and evaluate all documents produced as a result of the project, perform a final on-site inspection of the completed project and determine how closely the project delivered the outcome anticipated in the application.

Stat. Auth.: ORS 285A.093, 285A.098, 401.910 & 2013 OL Ch. 782

Stats. Implemented: ORS 285A.093, 285A.098 & 401.910

Hist.: OBDD 13-2013, f. 12-30-13, cert. ef. 1-1-14

123-051-1000

Grant Awards and Match

(1) Grants will be awarded only when there are sufficient funds available in the Seismic Rehabilitation Grants program.

(2) Grant funds shall be distributed to public education facilities and emergency services facilities as allocated by the Legislative Assembly.

(3) The maximum grant award is $1.5 million.

(4) There is no required match for this program. Additional application points may be considered for applicants that provide matching funds.

Stat. Auth.: ORS 285A.093, 285A.098, 401.910 & 2013 OL Ch. 782

Stats. Implemented: ORS 285A.093, 285A.098 & 401.910

Hist.: OBDD 13-2013, f. 12-30-13, cert. ef. 1-1-14

123-051-1100

Grant Agreement Conditions

(1) The Authority will only enter into new agreements or amendments to existing agreements, with prior Grantees, if all reporting obligations under earlier agreements have been met.

(2) If the grant agreement has not been fully executed by all the parties within 60 days of grantee receiving contract document, funding shall be terminated. The money allocated to the grant shall be available for reallocation by the grant committee.

(3) The Authority or designee shall establish grant agreement conditions. Grantees shall comply with all grant agreement conditions.

(4) The Grantee shall comply with all federal, state and local laws and ordinances applicable to the work to be done under the agreement.

(5) Upon notice to the Grantee in writing, the Authority may terminate funding for projects not completed in the prescribed time and manner. The money allocated to the project but not used will be available for reallocation by the grant committee.

(6) The Grantee will account for funds distributed by the grant committee, using project expense forms provided by the Authority.

(7) The Grantee will obtain the necessary permits and licenses from local, state or federal agencies or governing bodies.

Stat. Auth.: ORS 285A.093, 285A.098, 401.910 & 2013 OL Ch. 782

Stats. Implemented: ORS 285A.093, 285A.098 & 401.910

Hist.: OBDD 13-2013, f. 12-30-13, cert. ef. 1-1-14

123-051-1200

Waivers, Exceptions and Appeals

(1) The Authority may waive non-statutory requirements of the grant program if it is demonstrated such a waiver would serve to further the goals or objectives of the program.

(2) The Authority may consider appeals of the grant committee’s funding decisions. Only the applicant may appeal. Appeals must be submitted in writing to the Authority within 30 days of the event or action that is being appealed. The Authority’s decision is final.

Stat. Auth.: ORS 285A.093, 285A.098, 401.910 & 2013 OL Ch. 782

Stats. Implemented: ORS 285A.093, 285A.098 & 401.910

Hist.: OBDD 13-2013, f. 12-30-13, cert. ef. 1-1-14


Rule Caption: This rule amendments relate to the procedures for contracts entered into with the department.

Adm. Order No.: OBDD 14-2013(Temp)

Filed with Sec. of State: 12-30-2013

Certified to be Effective: 12-30-13 thru 6-27-14

Notice Publication Date:

Rules Amended: 123-006-0035

Subject: The 2013 Legislature passed HB 2212 amended the small procurement threshold to $10,000 and permitting amendments to $12,500. The amendment to 123-006-0035 reflects these changes.

Rules Coordinator: Mindee Sublette—(503) 986-0036

123-006-0035

Contract Amendments

(1) General Rule. The Department may amend any contract without additional competition, including reinstatements and cost overruns, but only when the Department has determined:

(a) The amended Contract is within the Scope of the Solicitation Document, or if no Solicitation Document, the Contract; or in the instance of a Special Procurement, the approval of Special Procurement;

(b) The amended Contract does not adversely affect the competitive conditions for the original contract; and

(c) If the Contract was selected according to the Small Procurement method, the total compensation does not exceed $10,000, or, if selected according to the Intermediate Procurement method, the total compensation does not exceed $150,000.

(2) Anticipated Amendments.

(a) “Anticipated Amendment” means the Department has text in any Solicitation Document and the Contract that explains:

(A) The possibility of one or more Amendments;

(B) A general description of circumstances that might require an Amendment to be issued under the Contract and any changes to the requirements of the Contract that may be anticipated or even planned for, but not necessarily quantified at the time of Contract execution. These changes may be described in any Solicitation and Contract as, for example: Extra Work or Goods; Additional Work; Work to be done if certain situations are encountered; or Changes in terms, conditions, price, or type of Work; etc.; and

(C) The provisions of the Contract that are subject to negotiation in order to finalize the details and costs of such an Amendment.

(b) Anticipated Amendments do not include cost overruns or reinstatements.

(c) The Department may make one or more Anticipated Amendments to a Contract without any additional competitive process and for an unlimited amount, subject to section (1) of this rule.

(3) Unanticipated Amendments.

(a) Unanticipated Amendment” means any Amendment that does not meet the requirements of an Anticipated Amendment. Unanticipated Amendments do not include cost overruns or reinstatements.

(b) Limited Amount. The Department may make one or more Unanticipated Amendments to a Contract without any additional competitive process, provided the cumulative amounts of all Unanticipated Amendments do not exceed $12,500 for a Contract award as a small procurement under 137-047-0265 or 25% of the Original Contract amount of a Contract awarded as an intermediate procurement under 137-047-0270 and subject to section (1) of this rule.

(c) Unlimited Amount. The Department may make one or more Unanticipated Amendments to a Contract without any additional competitive process and for an unlimited amount, subject to section (1) of this rule, and provided the Department’s Designated Procurement Officer gives written approval of the Unanticipated Amendment as meeting the following requirements:

(A) The Unanticipated Amendment is due to circumstances that were unforeseen at the time the original Contract was established;

(B) The Unanticipated Amendment does not represent any important general change that alters the essential identity or main purpose of the original Contract, nor is of such importance that it should be a new undertaking; and

(C) The Unanticipated Amendment serves the public interest, including specific reasoning to support that conclusion. Reasons may include, but are not limited to: To address emergencies arising in the course of the Contract that require prompt action to protect the Work already completed or Goods delivered; to comply with official or judicial commands or directives issued during contract performance; or to ensure that the purpose of the Contract will be realized.

(4) Cost Overruns.

(a) Unless the Contract provides that the maximum total compensation is based on an estimate and is subject to amendment, if Contractor expends all authorized compensation but the required Goods, Work or Services are not complete or are not satisfactory, Contractor is responsible to complete the Goods, Work or Services to Department’s satisfaction without further compensation.

(b) Notwithstanding the general rule in subsection (4)(a) above, Department may, by Amendment to the Contract, agree to increases in the maximum total compensation, subject to section (1) of this rule, and provided the Department’s Designated Procurement Officer gives written approval of the Cost Overrun Amendment as meeting the following requirements:

(A) The cost overrun arose out of circumstances or conditions encountered in the course of contract performance that were unavoidable and not reasonably anticipated at the time of the original Contract, or the most recent Amendment, if any;

(B) The cost overrun was incurred in good faith, results from the good faith performance by the Contractor, and is no greater than the prescribed hourly rate or the reasonable value of the additional Goods, Work or Services rendered; and

(C) The Cost Overrun Amendment serves the public interest, including specific reasoning to support that conclusion. Reasons may include, but are not limited to: To address emergencies arising in the course of the Contract that require prompt action to protect the Work already completed; to comply with official or judicial commands or directives issued during contract performance; or to ensure that the purpose of the Contract will be realized.

(5) Reinstatements.

(a) “Reinstatement” of an expired Contract means an amendment to restore the full action of the Contract as though the expiration had not occurred, and extend the Contract to a new expiration. A reinstatement may be combined with any other amendment allowed by this rule.

(b) The Department’s Designated Procurement Officer may give written approval to reinstate an expired Contract if the following requirements are met:

(A) The failure to extend or renew the Contract in a timely manner was due to unforeseen or unavoidable conditions, or if due to administrative mistake, the reason for the mistake and the steps taken to prevent similar mistakes;

(B) The expiration occurred in good faith on the part of both the Department and the Contractor;

(C) The reinstatement furthers the public interest, compared to a separate procurement process, including specific reasoning to support that conclusion; and

(c) When a Contract is reinstated pursuant to this section, the Department may compensate the Contractor only at the rate or terms of compensation established in the original Contract, for Goods, Work or Services performed in the interim between the expiration of the original Contract and the execution of the Reinstatement Amendment.

(6) Amendments of Contracts for Architectural, Engineering and Land Surveying Services. This rule does not apply to amendments of Contracts for Architectural, Engineering and Land Surveying Services. The Department will comply with the Oregon Department of Justice Model Public Contract Rules, OAR chapter 137, division 48 for amendments to such contracts.

Stat. Auth.: ORS 285A.075

Stats. Implemented: ORS 285A.075 & 279.070

Hist.: EDD 11-2005, f. 11-30-05, cert. ef. 12-1-05; EDD 26-2008, f. 8-28-08, cert. ef. 9-1-08; OBDD 37-2010, f. 10-29-10, cert. ef. 11-1-10; OBDD 2-2012, f. 3-30-12, cert. ef. 4-2-12; OBDD 14-2013(Temp), f. & cert. ef. 12-30-13 thru 6-27-14

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2013.

2.) Copyright Oregon Secretary of State: Terms and Conditions of Use

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