WSR 98-18-019

PROPOSED RULES

PUBLIC WORKS BOARD

[Filed August 24, 1998, 10:07 a.m.]

Supplemental Notice to WSR 98-07-033.

Preproposal statement of inquiry was filed as WSR 97-22-015.

Title of Rule: All permanent rules of the Public Works Board, Title 399 WAC, will be reviewed under this proposed action. Note: Chapter 399-40 WAC has been reviewed and reconfirmed - no changes are proposed.

Purpose: Consistent with Executive Order 97-02, regulatory improvement, the Public Works Board is reviewing, modifying, reconfirming, or eliminating its current rules as contained in the current WAC.

Statutory Authority for Adoption: RCW 43.155.040 (4) and (5).

Statute Being Implemented: Chapter 43.155 RCW.

Summary: By its preproposal statement of inquiry and by a public hearing on May 5, 1998, the board has sought public input. The board now proposes to hold another public hearing based on information provided at the May 5, 1998, public hearing, additional information provided by the board legal counsel and additional information from the board's staff.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Pete A. Butkus, P.O. Box 48319, Olympia, WA 98504-8319, (360) 586-7186.

Name of Proponent: Public Works Board, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Hearing Location: Wyndham Garden Hotel, 18118 Pacific Highway South, SeaTac, WA, on November 3, 1998, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Beth Rockwell by October 23, 1998, (360) 753-3262.

Submit Written Comments to: Pete A. Butkus, e-mail peteb@cted.wa.gov, or fax (360) 664-3029, by October 23, 1998.

Date of Intended Adoption: November 3, 1998.

August 24, 1998

Pete A. Butkus

Rules Coordinator

OTS-1937.2

AMENDATORY SECTION (Amending WSR 95-11-093, filed 5/19/95, effective 6/19/95)

WAC 399-10-010  Organization and operation of the public works board. (1) The public works board((, hereinafter referred to as the board,)) is a thirteen-member board appointed by the governor ((and created pursuant to)) under RCW 43.155.030.

(2) The governor ((shall)) appoints one of the general public members ((of the board)) as chair. The board may elect ((such)) other officers for ((such)) terms ((as it may from time to time deem)) deemed necessary ((in accordance with the board's bylaws)).

(3) ((The board's staff support and office space is provided by the Department of Community, Trade, and Economic Development, P.O. Box 48319, Olympia, Washington 98504-8319; phone (360) 753-2200.)) The department of community, trade, and economic development provides staff support and office space to the board at P.O. Box 48319, Olympia, Washington 98504-8319; phone (360) 753-2200.

The board's Internet site is: WWW.CRAB.WA.GOV/PWTF

[Statutory Authority: RCW 43.155.040(4). 95-11-093, § 399-10-010, filed 5/19/95, effective 6/19/95; 93-22-014, § 399-10-010, filed 10/26/93, effective 11/26/93. Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-10-010, filed 12/4/85.]

AMENDATORY SECTION (Amending WSR 93-22-014, filed 10/26/93, effective 11/26/93)

WAC 399-10-020  Board meetings. (1) The board holds regular meetings on the first Tuesday of each month. In the month of August meetings are held on the first and third Tuesdays.

(2) Notice of the times and places of the regular meetings will be published annually in a January edition of the Washington State Register. A copy of the schedule of regular meetings may also be obtained upon request from the board.

(((2))) (3) Special meetings of the board may be called at any time by the chair of the board or by a majority of the board members. Notice of such meetings will be as provided by law.

[Statutory Authority: RCW 43.155.040(4). 93-22-014, § 399-10-020, filed 10/26/93, effective 11/26/93. Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-10-020, filed 12/4/85.]

AMENDATORY SECTION (Amending WSR 93-22-014, filed 10/26/93, effective 11/26/93)

WAC 399-10-030  Communications with the board. Any and all written communications with the board, including but not limited to requests for information or copies of agency records, or submittals of any nature, ((shall)) must be addressed to the public works board, in care of the chair, ((at the address which appears)) as stated in WAC 399-10-010(3). ((Telephonic communications may be initiated by calling the phone number also listed in WAC 399-10-010(3).)) The board's telephone number and Internet address are listed in the same section.

[Statutory Authority: RCW 43.155.040(4). 93-22-014, § 399-10-030, filed 10/26/93, effective 11/26/93. Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-10-030, filed 12/4/85.]

OTS-1938.3

AMENDATORY SECTION (Amending Order 85-17, filed 12/4/85)

WAC 399-20-010  Purpose. ((The purpose of this chapter shall be to ensure the compliance by the public works board with the provisions of chapter 1, Laws of 1973, Initiative Measure No. 276, and in particular sections 25 through 32 of that act, and RCW 42.17.250 through 42.17.320 concerning disclosure of public records.)) This chapter is intended to ensure that the board complies with chapter 42.17 RCW, the Public Disclosure Act, especially RCW 42.17.250 through 42.17.348, which address disclosure of public records.

[Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-20-010, filed 12/4/85.]

AMENDATORY SECTION (Amending WSR 95-11-093, filed 5/19/95, effective 6/19/95)

WAC 399-20-020  Definitions. The following definitions shall apply to this chapter:

(1) "Public record" includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by the board regardless of physical form or characteristics.

(2) "Writing" means handwriting, typewriting, printing, photostating and every other means of recording any form of communication or representation, including letters, words, pictures, sounds, symbols, or combinations thereof, and all paper, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums and other documents.

(3) "Board" means the public works board, created ((pursuant to chapter 446, Laws of 1985)) in chapter 43.155 RCW, and ((shall)) also refers to the board's officers and staff, where appropriate.

(4) "Department" means the department of community, trade, and economic development, and shall ((also)) refers to the department's staff, where appropriate.

[Statutory Authority: RCW 43.155.040(4). 95-11-093, § 399-20-020, filed 5/19/95, effective 6/19/95. Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-20-020, filed 12/4/85.]

AMENDATORY SECTION (Amending Order 85-17, filed 12/4/85)

WAC 399-20-030  Public records available. All public records of the board are deemed to be available for public inspection and copying, except as otherwise provided by RCW 42.17.260 and 42.17.310 as now or ((may)) hereafter ((be)) amended, and by WAC 399-20-090.

[Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-20-030, filed 12/4/85.]

AMENDATORY SECTION (Amending Order 85-17, filed 12/4/85)

WAC 399-20-040  Public records officer. ((The department's public records officer shall be the public records officer for the board.)) The board shall designate a staff member to be the public records officer. The public records officer shall be responsible for implementation of the board's rules and regulations regarding inspection and copying of public records, and for ensuring compliance by the staff with the public records disclosure requirements of chapter 42.17 RCW.

[Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-20-040, filed 12/4/85.]

AMENDATORY SECTION (Amending Order 85-17, filed 12/4/85)

WAC 399-20-060  Office hours. Public records ((shall be)) are available for inspection and copying during the department's normal office hours((. For purposes of this chapter, normal office hours shall be from 9:00)), which are 8:00 a.m. to noon and from 1:00 p.m. to 5:00 p.m., Monday through Friday, excluding legal holidays, or closure due to natural disaster, inclement weather, or local emergency.

[Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-20-060, filed 12/4/85.]

AMENDATORY SECTION (Amending Order 85-17, filed 12/4/85)

WAC 399-20-070  Requests for public records. ((In accordance with the requirements of chapter 42.17 RCW that)) The Public Disclosure Act, chapter 42.17 RCW, requires agencies to prevent unreasonable invasions of privacy, ((and)) to protect public records from damage or disorganization, and to prevent excessive interference with essential functions of the board((, public records may be inspected or copied, or copies of such records may be obtained by members of the public, upon compliance)). Therefore, members of the public may inspect, copy, or obtain copies of public records if they comply with the following procedures:

(1) A request ((shall)) must be made in writing ((upon a)) on the form ((prescribed)) adopted by the board which shall be in WAC 399-20-120. The form is available at the board's offices, or by writing or calling the board.

(2) The form ((shall be)) must be completed in full and presented or mailed to the public records officer((, or to any member of the board's staff, if the public records officer is not available,)) at the board's offices during normal office hours. ((The request shall include the following information:

(a) The name, address, and organization represented, if any, of the person requesting the record;

(b) The calendar date on which the request was made, and, when presented in person, the time of day;

(c) The nature of the request;

(d) If the matter requested is referred to within the current index maintained by the records officer, a reference to the requested record as it is described in such current index.

(2) In all cases in which a member of the public is making a request, it shall be the obligation of)) (3) The public records officer ((or staff member to)) will assist the member of the public in appropriately identifying the public record requested.

[Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-20-070, filed 12/4/85.]

AMENDATORY SECTION (Amending Order 85-17, filed 12/4/85)

WAC 399-20-080  Copying. No fee ((shall be)) is charged for the inspection of public records. The board may charge a fee of ((ten)) fifteen cents per page for providing copies of public records, when copies of more than ten pages are provided, and for use of the department's copy equipment. ((This charge is the amount necessary to reimburse the department for its actual cost incident to such copying.))

[Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-20-080, filed 12/4/85.]

AMENDATORY SECTION (Amending Order 85-17, filed 12/4/85)

WAC 399-20-090  Exemptions. (((1) The board reserves the right to determine that a public record requested in accordance with the procedures outlined in WAC 399-20-070 is exempt from disclosure under the provisions of RCW 42.17.260 and 42.17.310.

(2) Pursuant to RCW 42.17.260, the board reserves the right to delete identifying details when it makes available or publishes any public record, in any case where there is reason to believe that disclosure of such details would be an invasion of personal privacy protected by chapter 42.17 RCW. The public records officer will fully justify such deletion in writing.

(3) All denials of requests for public records shall be accompanied by a written statement specifying the reason for the denial.)) (1) The public records officer will determine whether a requested record is exempt from disclosure under chapter 42.17 RCW.

(2) If a requested record is determined to be exempt in part, the public records officer will delete the exempt portions of the record before making it available for inspection or copying. The public records officer will fully justify any deletion in writing.

(3) Whenever the public records officer denies a public records request, a written statement specifying the reason for the denial shall be provided.

(4) The Public Disclosure Act requires agencies to respond promptly to requests for public records. Within five business days after receiving a public records request, the public records officer must respond by either:

(a) Providing the record;

(b) Acknowledging the request and stating a reasonable estimate of the time the board will need to respond; or

(c) Denying the request.

The board may require additional time to respond for reasons consistent with RCW 42.17.320.

[Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-20-090, filed 12/4/85.]

AMENDATORY SECTION (Amending Order 85-17, filed 12/4/85)

WAC 399-20-100  Review of denials of public records requests. (((1) Any person who objects to the denial of a request for public records may petition for prompt review of such decision by submitting a written request for review. The written request shall specifically refer to the written statement by the public records officer or other staff member which constituted or accompanied the denial.

(2) Following receipt of a written request for review of a decision denying a request from public records, the public records officer or other authorized staff member denying the request shall refer it to the chairman of the board or his designee. The chairman or his designee shall immediately consider the matter and either affirm or reverse such denial. The request shall be returned with the final decision, within two business days following receipt of the request for review.

(3) Administrative remedies shall not be considered exhausted until the request has been returned with a decision or until the close of the second business day following the denial of inspection, whichever occurs first.)) Agencies are required to establish a mechanism for the prompt review of decisions denying the inspection or copying of public records. In any case where a public record is denied in whole or in part the chair, or designee, shall immediately review the matter and either affirm or reverse the denial. The review is deemed complete at the end of the second business day following the denial of inspection or copying and constitutes final agency action for purposes of judicial review.

[Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-20-100, filed 12/4/85.]

AMENDATORY SECTION (Amending Order 85-17, filed 12/4/85)

WAC 399-20-110  Protection of public records. ((In order to properly protect the public records in the custody of the board, the following guidelines shall be adhered to by any person inspecting such public records:

(1) No public records shall be removed from the offices of the board;

(2) Inspection of any public records shall be conducted in the presence of a designated board or department employee;

(3) No public records may be marked or defaced in any manner during inspection;

(4) Public records which are maintained in a file jacket, or in a chronological order, may not be dismantled except for purposes of copying and then only by a designated employee of the board or department; and

(5) Access to file cabinets, shelves, vaults, etc., is restricted to board or department personnel.)) To protect the board's public records any person inspecting or copying the records must comply with the following requirements:

(1) Public records may not be removed from the board's offices;

(2) Persons inspecting public records must do so in the presence of a designated board or department employee;

(3) Persons inspecting or copying public records must not mark or deface them in any manner;

(4) Public records maintained in a file jacket, or in chronological order must not be dismantled except for the purposes of copying and then only by a designated board or department employee;

(5) Only board or department employees will have access to file cabinets, shelves, vaults, or other storage areas.

[Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-20-110, filed 12/4/85.]

AMENDATORY SECTION (Amending Order 85-17, filed 12/4/85)

WAC 399-20-120  Adoption of form. The board hereby adopts for use by all persons requesting inspection or copying of its records, the form set out below, entitled "request for public records."

In order to request copies of our public records, please complete the attached form and return it with the proper payment to the address below. We will forward to you those requested copies which are not exempt from disclosure when we receive this form. Thank you.

[Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-20-120, filed 12/4/85.]

OTS-1939.3

AMENDATORY SECTION (Amending Order 85-17, filed 12/4/85)

WAC 399-30-010  Purpose. (1) ((Pursuant to authority derived from chapter 446, Laws of 1985,)) The public works board ((may)) makes low-interest or interest-free loans to local governments from the public works assistance account or other ((funds and accounts for the purpose of assisting)) sources to assist local governments in financing public works projects. The board may also pledge money to the repayment of all or a portion of the principal ((of)) or interest on obligations issued by local governments to finance public works projects.

(2) The purpose of this chapter is to ((prescribe the form and manner in which)) describe how local governments may ((make application)) apply to the board for financial assistance, and to provide for the ((consideration and disposition)) review of ((such)) the applications.

[Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-30-010, filed 12/4/85.]

AMENDATORY SECTION (Amending Order 89-01, filed 4/28/89)

WAC 399-30-020  Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Board" means the public works board.

(2) "Department" means the department of community, trade, and economic development.

(3) "Financing guarantees" means the pledge of money in the public works assistance account, or money to be received by the public works assistance account, to the repayment of all or a portion of the principal of or interest on obligations issued by local governments to finance public works projects.

(4) "Local governments" means cities, towns, counties, special purpose districts, and any other municipal corporations or quasi-municipal corporations in the state excluding school districts and port districts.

(5) "Public works project" means a project of a local government for the planning, acquisition, construction, repair, reconstruction, replacement, rehabilitation, or improvement of ((streets and roads, bridges, water systems, or storm and sanitary sewage)) bridges, roads, domestic water systems, sanitary sewer systems, storm sewer systems, and solid waste/recycling systems.

(6) "Emergency public works project" means a public works project made necessary by a natural disaster, or an immediate and emergent threat to the public health and safety due to unforeseen or unavoidable circumstances.

[Statutory Authority: RCW 43.155.040. 89-10-041 (Order 89-01), § 399-30-020, filed 4/28/89. Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-30-020, filed 12/4/85.]

AMENDATORY SECTION (Amending WSR 92-03-052, filed 1/13/92, effective 2/13/92)

WAC 399-30-030  Loan and financing guarantee applications. (1) ((Applications for loans and/or financing guarantees to assist in the financing of critical public works projects may be made by)) Any local government in the state of Washington may apply for a loan or financing guarantee to assist in financing critical public works projects.

(2) All applicants must meet the following conditions:

(a) Applicant cities and counties must be imposing a real estate excise tax under RCW 82.46.010(2) at a rate of at least one-quarter of one percent;

(b) Applicant local governments must have developed a long-term plan for financing public works needs as further described in the loan application package((; and

(c) Applicant local governments must be using all local revenue sources that are reasonably available for funding public works, taking into consideration local employment and economic factors.)) under "capital facilities planning."

(3) Direct costs eligible for public works loans are those costs ((which are)) directly attributable to a specific project and ((shall)) include:

(a) ((Direct labor (engineering and/or construction) including related employee benefits:)) Work done by employees of the applicant, or by other government employees under an inter-local agreement or contract limited to: Engineering, environmental review, design activities, acquisition of rights of way or property, construction inspection activities, roadway seal coating (if bids from private sector contractors have been solicited and compared with the inter-local agreement proposal), and the cleaning, sterilization, or bacteriological testing of water system components prior to public use.

(i) Salaries and wages (at actual or average rates) covering productive labor hours of the local government employees (excluding the administrative organization of the operating unit involved) ((for periods of time, actively or incidentally engaged in (A) engineering, (B) acquisition of rights-of-way, (C) construction inspection activities)). The cost of services rendered by employees generally classified as administrative are considered a direct cost only when such employees are assigned for short periods of time to perform on a full-time basis the types of services described above and when similar procedures are followed;

(ii) Employee benefits relating to direct labor are considered a direct cost of construction projects. The following items may be included as employee benefits:

(A) F.I.C.A. (Social Security) - employer's share;

(B) Retirement benefits;

(C) Hospital, health, dental, and other welfare insurance;

(D) Life insurance;

(E) Industrial and medical insurance;

(F) Vacation;

(G) Holiday;

(H) Sick leave; and

(I) Military leave and jury duty.

Employee benefits ((shall)) must be calculated as a percentage of direct labor dollars. The computation of predetermined percentage rates to be applied to current labor costs ((shall)) must be based ((upon)) on the average of total employee benefits and total labor costs for the prior fiscal year and adjusted by known current year variations.

(b) Contract engineering ((and)), planning, legal, and financial planning services. The board reserves the right to declare ineligible legal costs that are unreasonable and disproportionate to the project.

(c) Right-of-way acquisition costs including:

(i) Purchase of land and easements acquired for and devoted to the project;

(ii) Purchase of improvements;

(iii) Adjustment or reestablishment of improvements;

(iv) Salaries, expenses or fees of appraisers, negotiators or attorneys;

(v) Removal or demolition of improvement;

(vi) Other direct costs in connection with the acquisition. Amounts received from the sale of excess real property or improvements and from any rentals ((shall)) will be ((a reduction of)) reduced from the direct cost.

(d) Contract construction work.

(e) Direct vehicle and equipment charges at the actual rental cost paid for the equipment or, in the case of city or county-owned equipment, at the rental rates established by the local government's "equipment rental and revolving fund" following the methods prescribed by the division of municipal corporations((: Provided, That)). However, such costs ((shall)) must be charged on a uniform basis to equipment used for all projects regardless of the source of funding. Cities with a population of eight thousand or less ((which may not use this)) not using type of fund ((shall be)) are allowed the same rates as used by the department of transportation.

(f) Direct materials and supplies. ((The cost of materials used in projects shall be based upon methods prescribed for the "equipment rental and revolving fund" by the division of municipal corporations.))

(i) An overhead rate or "loading factor" ((shall)) is not ((be)) considered an appropriate additive to the actual cost of materials and supplies used on construction projects unless the factor is readily and properly supportable by the governmental unit's accounting records.

(ii) The cost, or reasonable estimate thereof, of materials paid for as contract estimate items, but not used, ((shall)) will be considered a reduction of direct costs. Any material ((which may be)) that is salvaged in connection with a project ((shall)) will be assigned a reasonable value and considered a reduction of direct costs.

(iii) Wetland plants and other materials used for wetland planting, wildlife habitat, or fish habitat may be provided to a public or nonprofit organization without a reduction of direct costs.

(g) Interdepartmental charges for work performed by the local government for the benefit of specific construction projects ((shall be)) is limited to direct costs plus an allocation of indirect costs based ((upon)) on ten percent of direct labor dollars, excluding employee benefits.

(h) Other direct costs incurred for materials or services acquired for a specific project ((shall be)) are eligible for participation by public works loan funds and may include, but ((shall)) are not ((be)) limited to such items as:

(i) Telephone charges;

(ii) Reproduction and photogrammetry costs;

(iii) Video and photography for project documentation;

(iv) Computer usage; and

(v) Printing and advertising.

(4) Other than work identified in subsection (3)(a) of this section, no government employee labor related costs, including force account work, are eligible for financing assistance or to be considered as local match under this chapter.

(5) Applications ((shall)) must be submitted ((to the board)) in writing, on ((such)) forms ((as may be prescribed by and obtained from)) provided by the board for the current funding cycle.

(((5) Any application for financial assistance submitted to the board shall be signed and verified by a responsible official of the applicant jurisdiction. Such official shall also provide the board with any additional materials or information in support of the application which the board or its staff may request.)) (6) A responsible official of the applicant jurisdiction must sign and verify each application for financial assistance. The official must also provide the board with additional materials or information in support of the application when requested by the board or its staff.

[Statutory Authority: RCW 43.155.040(4). 92-03-052, § 399-30-030, filed 1/13/92, effective 2/13/92. Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-30-030, filed 12/4/85.]

AMENDATORY SECTION (Amending WSR 95-11-093, filed 5/19/95, effective 6/19/95)

WAC 399-30-040  Application evaluation procedure and board deliberations. (1) The board will consider and prioritize, or disapprove, all applications for loans or financing guarantees at regular or special meetings of the board. The applicant will be notified of meetings at which its application will be considered.

(2) Applications will be evaluated and prioritized in accordance with the following procedures:

(a) Staff will log in all applications as received.

(b) Staff will review all applications for compliance with the minimum qualification requirements of WAC 399-30-030(2). Jurisdictions whose applications do not meet the minimum qualification requirements will be notified in writing of the disqualification.

(c) Staff will perform ((a preliminary)) an evaluation of all applications which meet the requirements of WAC 399-30-030(2). Applications will be scored according to the number of points awarded for responses provided in the statements of local management efforts and project need.

(i) Not less than sixty points, of a one hundred point total, ((shall)) will be assigned to responses to questions identified in the application as relating to local management effort.

(ii) The remaining forty points ((shall)) will be assigned to responses to questions identified in the application as relating to project need.

(d) Staff will provide the board with ((preliminary)) evaluation and scoring of the applications. All application materials will be available to the board for their deliberations. The board will ((develop)) approve a ranked list of projects based on the information provided to them by the staff and the applications.

(e) The board may adjust the ranked list in consideration of the following factors:

(i) Geographical balance;

(ii) Economic distress;

(iii) Type of projects;

(iv) Type of jurisdiction;

(v) Other criteria that the board considers advisable.

(f) Staff will verify critical information on each project as required by the board.

(g) In order to ensure fairness to all jurisdictions with applications pending before the board, the board will not accept oral or written testimony from any applicant while deliberating loan priorities, other than specific responses to information requests initiated by the board as provided in (h) of this subsection.

(h) The board may consult with officials of jurisdictions having projects submitted for funding on any issue it wishes to address.

(3) Applicants will be notified in writing of board decisions.

[Statutory Authority: RCW 43.155.040(4). 95-11-093, § 399-30-040, filed 5/19/95, effective 6/19/95; 93-22-015, § 399-30-040, filed 10/26/93, effective 11/26/93; 92-03-052, § 399-30-040, filed 1/13/92, effective 2/13/92. Statutory Authority: RCW 43.155.040. 88-10-009 (Order 88-02), § 399-30-040, filed 4/22/88; 87-17-013 (Order 87-16), § 399-30-040, filed 8/10/87; 86-18-009 (Resolution No. 86-12), § 399-30-040, filed 8/21/86. Statutory Authority: 1985 c 446 § 10. 86-03-051 (Resolution No. 85-17), § 399-30-040, filed 1/15/86.]

AMENDATORY SECTION (Amending WSR 92-03-052, filed 1/13/92, effective 2/13/92)

WAC 399-30-042  Application evaluation procedure and board deliberations--Capital planning support. (1) The board will consider and approve, or disapprove, all applications for capital planning support loans at regular or special meetings of the board. The applicant will be notified of meetings at which its application will be considered.

(2) All applications will be evaluated in accordance with the following procedures:

(a) Staff will log in all applications as received.

(b) Staff will review all applications for compliance with the minimum qualification requirements of WAC 399-30-030(2). Jurisdictions whose applications do not meet the minimum requirements will be notified in writing of the disqualification.

(c) Staff will perform ((a preliminary)) an evaluation of applications which meet the requirements of WAC 399-30-030(2) to determine if the application is consistent with the policies contained in the capital planning support loan application.

(d) Those applications found to be consistent with board policies may be recommended to the board for funding. All application materials will be available to the board for its deliberations. The board will ((develop)) approve a list of projects based on the information provided to it by the staff and the applications.

(e) The board may then adjust the list in consideration of the following factors:

(i) Geographical balance;

(ii) Economic distress;

(iii) Other criteria that the board considers advisable.

(f) Staff will verify critical information on each project as required by the board.

(g) The board may consult on any issue it wishes to address, with officials of jurisdictions having projects submitted for funding.

(3) Applicants will be notified in writing of board decisions.

[Statutory Authority: RCW 43.155.040(4). 92-03-052, § 399-30-042, filed 1/13/92, effective 2/13/92. Statutory Authority: RCW 43.155.040. 88-17-080 (Order 88-03), § 399-30-042, filed 8/22/88.]

AMENDATORY SECTION (Amending WSR 92-03-052, filed 1/13/92, effective 2/13/92)

WAC 399-30-045  Emergency loan program. This section implements RCW ((43.155.060 as amended in 1988 to provide that:)) 43.155.060 and 43.155.065. The board may make low-interest or interest free loans to local governments for emergency public works projects. The emergency loan program is to financially assist eligible communities experiencing the loss of critical public works services or facilities due to an emergency, and that can demonstrate a substantial fiscal need.

(1) Eligible local governments. Applicants must meet the conditions as identified under WAC 399-30-030(2).

(2) Eligible uses of funds. Financial assistance received shall be used for the purpose of restoring the services and/or repair of the public works facilities involved in the emergency. Assistance provided may be used to help fund all or part of an emergency public works project less any reimbursement from any of the following:

(a) Federal disaster or emergency funds, including funds from the Federal Emergency Management Agency;

(b) State disaster or emergency funds;

(c) Insurance settlements; or

(d) Litigation.

((Reimbursement from the sources listed above shall be made to the department and shall remain an obligation of the assisted local government up to four years after the date of formal project closeout with the department. Local governments receiving funds shall undertake efforts to be reimbursed in a timely manner. Further, that assistance will be offered only for those eligible costs identified in WAC 399-30-030(3).)) Assisted local governments must reimburse the department any moneys received from the sources listed above. The local government is obligated to make reimbursement for four years after formal project closeout. Local governments eligible to receive moneys must use their best efforts to seek reimbursement in a timely manner.

(3) Availability of funds. Funding will be made available on a first-come first-served basis. Only those funds specifically appropriated by the legislature from the public works assistance account shall be used to make emergency loans. That amount shall not exceed five percent of the total amount appropriated from this account in any biennium.

(4) Application process. ((The application process shall be in writing on such forms or format as may be prescribed and obtained from the board. The date and time of receipt of the application by the board designated representative shall determine the sequence for application processing.)) Local governments must apply on the form provided by the board. Applications will be processed in the order received.

(5) Board deliberations--Emergency loan applications.

(a) The board will consider and approve or disapprove all eligible applications for emergency financial assistance at regular or special meetings of the board. The applicant will be notified of meetings at which its application will be considered.

(b) All applications will be accepted, evaluated, and prioritized in accordance with the following procedures:

(i) Applications will be accepted only when emergency funding is available.

(ii) Staff will review applications and verify that the applicant is eligible for assistance as set forth in RCW 43.155.070(1).

(iii) Staff will provide the board an evaluation of whether an emergency loan is needed based upon the information documented by the applicant and staff.

(iv) Site visits to the location of the emergency public works project will be carried out at the discretion of the board or staff.

(6) Loan terms. The board shall determine the term and interest rate(s) of emergency loans annually.

(7) Exceptions to public works trust fund policies and procedures. Except as provided in this chapter or specified in annual program guidelines, the emergency program shall follow all general administrative program policies as set for the public works trust fund.

[Statutory Authority: RCW 43.155.040(4). 92-03-052, § 399-30-045, filed 1/13/92, effective 2/13/92. Statutory Authority: RCW 43.155.040. 89-10-041 (Order 89-01), § 399-30-045, filed 4/28/89.]

AMENDATORY SECTION (Amending WSR 92-03-052, filed 1/13/92, effective 2/13/92)

WAC 399-30-050  Recommendations to the legislature. (1) Prior to November 1, 1986, and in each subsequent year, the board ((shall)) will develop and submit to the ((ways and means)) appropriate fiscal committees of the senate and house of representatives a prioritized list of projects which the board recommends for funding by the legislature.

(2) In addition to the requirements of RCW 43.155.070(4), the list will include such supporting material as the board considers necessary to meet the purposes of this chapter.

(3) Before November 1 of each year, the board ((shall)) will develop and submit to the chairs of the ((ways and means)) appropriate fiscal committees of the senate and house of representatives a description of the emergency loans made under this program ((as provided in RCW 43.155.070(4), as amended in 1988, and identified in RCW 43.155.065)).

[Statutory Authority: RCW 43.155.040(4). 92-03-052, § 399-30-050, filed 1/13/92, effective 2/13/92. Statutory Authority: RCW 43.155.040. 89-10-041 (Order 89-01), § 399-30-050, filed 4/28/89. Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-30-050, filed 12/4/85.]

AMENDATORY SECTION (Amending WSR 92-03-052, filed 1/13/92, effective 2/13/92)

WAC 399-30-060  Loan and financing guarantee contracts. (1) The board ((shall not sign)) will only execute loan agreements or otherwise financially obligate funds from the public works assistance account ((until)) after the legislature approves the list and accompanying appropriation ((are approved by the legislature)).

(2) After the legislature has appropriated funds from the public works assistance account for a specific list of public works projects, the loan funds will be disbursed to the applicant local government ((pursuant to)) through a contract ((therefor, which will be offered to the local government with such reasonable terms and conditions as the board may determine: Provided, That the amount loaned to a local government shall not exceed ninety percent of eligible proposed project cost: Provided further, That the funds provided by a local government which are considered local financial participation shall consist of locally generated revenues and/or federal and/or state-shared revenues subject to discretionary allocation by the recipient unit of local government: Provided further, That the interest rate and local share requirements for loans shall be determined annually by the board: Provided further, That loans shall not exceed twenty years in duration, or the useful life of the improvements, whichever is shorter.

(3) Public works project loan and/or financing guarantee agreements offered to local governments shall be formally executed by the local government and the department of community development prior to the disbursal of any funds thereunder.

(4) Public works project loan and/or financing guarantee scope of work forms shall be completed and returned to the department of community development by the local government within ninety days of the date a scope of work form request is initiated.

(5) Public works project loan and/or financing guarantee contracts offered to local governments shall be executed by the local government within ninety days of the date a loan agreement is initiated.

(6) Work on public works projects financed through loans or financing guarantees offered to local governments must commence prior to October 1 of the year in which the loan or financing guarantee is offered.

(7) Work on public works projects financed through loans or financing guarantees offered to local governments must be completed within thirty months of the date of loan execution)). The contract will offer terms and conditions as the board determines are reasonable, based on the following standards:

(a) The amount loaned to a local government must not exceed ninety percent of eligible proposed project costs.

(b) The local government's financial participation funds must be from locally generated revenues or federal or state shared revenues that can be allocated at the discretion of the local government.

(c) The interest rate and local share requirements for loans will be determined annually by the board.

(d) Loans must not exceed twenty years, or the useful life of the improvements, whichever is shorter.

(3) The local government and the department must execute a final contract before any funds are disbursed.

(4) The local government must complete a scope of work form for a loan or financing guarantee and return it to the department within ninety days after the department offers a loan or financing guarantee.

(5) The local government must execute any loan or financing guarantee contracts offered within ninety days after the department offers the contract.

(6) The local government must begin work on a public works project prior to October 1 of the year in which the loan or financing guarantee is offered.

(7) The local government must complete work on the public works project within the time specified in the loan agreement, unless a written request for extension is approved by the board.

(8) ((Funds expended by local governments on projects financed through loans or financing guarantees by the public works assistance account before an agreement has been formally executed by the local government and the department of community development may not be reimbursed with funds from the public works assistance account. Such funds may be used by the local government as an element in its required local participation in a project financed by the public works assistance account provided they are used for activities eligible)) The board or department will not reimburse local governments for any funds spent on public works projects financed through the public works assistance account before a contract agreement has been formally executed. Funds spent before the contract is executed may be used toward local participation requirements if they are for eligible activities under WAC 399-30-030 and are consistent with the executed loan agreement.

[Statutory Authority: RCW 43.155.040(4). 92-03-052, § 399-30-060, filed 1/13/92, effective 2/13/92. Statutory Authority: RCW 43.155.040. 88-23-095 (Order 88-08, Resolution No. 86-12), § 399-30-060, filed 11/22/88; 86-18-009 (Resolution No. 86-12), § 399-30-060, filed 8/21/86. Statutory Authority: 1985 c 446 § 10. 85-24-072 (Order 85-17), § 399-30-060, filed 12/4/85.]

AMENDATORY SECTION (Amending WSR 92-03-052, filed 1/13/92, effective 2/13/92)

WAC 399-30-065  Emergency loan and financing guarantee contracts. (1) After the legislature has appropriated funds from the public works assistance account for emergency loans, the loan funds will be disbursed to the applicant local government pursuant to a contract ((therefor, which will be offered to the local government with such reasonable terms and conditions as the board may determine, if any: Provided, That the funds provided by a local government which are considered local financial participation shall consist of locally generated revenues and/or federal and/or state-shared revenues subject to discretionary allocation by the recipient unit of local government: Provided further, That loans shall not exceed twenty years in duration, or the useful life of the improvements, whichever is shorter.

(2) Public works project loan and/or financing guarantee agreements offered to local governments shall be formally executed by the local government and the department of community development prior to the disbursal of any funds thereunder.

(3) Public works project loan and/or financing guarantee scope of work forms shall be completed and returned to the department of community development by the local government within ninety days of the date a scope of work form request is initiated.

(4) Public works project loan and/or financing guarantee contracts offered to local governments shall be executed by the local government within ninety days of the date a loan agreement is initiated.

(5) Work on emergency public works projects financed through loans or financing guarantees offered to local governments must commence within ninety days of the date of loan execution.

(6) Work on public works projects financed through loans or financing guarantees offered to local governments must be completed within twelve months of the date of loan execution, unless a written request for extension is approved by the board.

(7) Funds expended by local governments on projects financed through loans or financing guarantees by the public works assistance account before an agreement has been formally executed by the local government and the department of community development may not be reimbursed with funds from the public works assistance account: Provided, That if the local government has made a formal declaration of an emergency, eligible costs for correction of the emergency incurred from the effective date of such declaration, and approved by the public works board, will be eligible for reimbursement. Such eligible costs not reimbursed but incurred before a loan agreement is approved may be used by the local government as an element of its required local participation, if any, for the emergency public works project)). The contract will offer terms and conditions the board determines are reasonable, based on the following standards:

(a) The local government's financial participation funds must be from locally generated revenues or federal or state shared revenues that can be allocated at the discretion of the local government.

(b) Loans must not exceed twenty years, or the useful life of the improvements, whichever is shorter.

(2) The local government and the department must execute a final contract before any funds are disbursed.

(3) The local government must complete a scope of work form for a loan or financing guarantee and return it to the department within ninety days after the department offers a loan or a financing guarantee contract.

(4) The local government must execute any loan or financing guarantee contracts offered within ninety days after the department offers the contract.

(5) The local government must begin work on an emergency public works project within ninety days after the contract is executed.

(6) The local government must complete work on an emergency public works project within twelve months after the contract is executed, unless a written request for extension is approved by the board.

(7) The board or department will not reimburse local governments for any funds spent on emergency public works projects financed through the public works assistance account before a contract agreement has been formally executed. However, if the local government has formally declared an emergency, the board may approve reimbursement of eligible costs of correcting the emergency incurred after an emergency was declared.

Any unreimbursed eligible costs for the project may be used toward local participation requirements, if any.

(8) All public works projects ((shall)) must comply with the competitive bid requirement of RCW 43.155.060 to the extent feasible and practicable.

[Statutory Authority: RCW 43.155.040(4). 92-03-052, § 399-30-065, filed 1/13/92, effective 2/13/92. Statutory Authority: RCW 43.155.040. 89-10-041 (Order 89-01), § 399-30-065, filed 4/28/89.]