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HomeMy WebLinkAboutC03-134 CDOTf ~®3-/~3~'~ 7~ .~ ~ ~ ~ LOAN AGREEMENT NUMBER AVN FY2003-0U1 LOAN AGREEMENT AND PROMISSORY NOTE THIS LOAN AGREEMENT, made this l ~~ day of ~ A^-/ , 2003 by and between the State of Colorado for the use and benefit of THE COLORADO DEPARTMENT OF TRANSPORTATION, hereinafter referred to as "COOT", and the Eagle County Air Terminal Corporation ("SCAT), hereinafter referred to as the "Sponsor." FACTUAL RECITALS: 1. The Colorado State Infrastructure Bank hereinafter referred to as the "Bank" is an investment bank at the state level with the ability to make loans to public and private entities for the formation of public transportation projects within the state; and 2. The General Assembly has passed legislation that made certain provisions for the Bank and established within the Bank, a highway account, a transit account, an aviation account and a rail account; and 3. The Transportation Commission has adopted rules, pursuant to 43-1-113.5, CRS, regarding the Bank; and 4. The Sponsor has requested a loan from the Bank in the amount of $990,000.00 for an eligible transportation project as described in Rule III, section 2, 2CCR 605-1, hereinafter referred to as the "Rules"; and 5. The Transportation Commission has approved the loan request and authorized COOT to make a loan to the Sponsor from the Bank in the amount of $990,000.00; and 6. Authority exists in the law and funds have been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for the loan amount in Fund 715; and 7. This Agreement evidences a loan in the amount of $990,000.00 from COOT to the Sponsor; and 8. This Agreement is executed under the authority of Sections 29-1-203, 43-1-110, and 43-1-113.5 C.R.S. and resolution of ECAT. NOW, THEREFORE, IT IS HEREBY AGREED THAT: ~` -1- V ~ I. LOAN TERMS: A. CDOT shall hereby disburse the entire $990,000.00 from the appropriate account to the Sponsor for the eligible transportation project described in Exhibit A, which is attached hereto and incorporated herein by reference. The loan shall be made payable to the Sponsor at Post Office Box 850, Eagle, Colorado 81631 or 500 Broadway, Eagle, Colorado 81631, or to such other place or person as may be designated in writing by the Sponsor. The loan disbursement shall be made to the Sponsor by means of a fmancial instrument or transfer acceptable to CDOT. B. Subject to the limitations of paragraph N.S. hereof, the term of the loan agreement shall be from the date this agreement is signed by the State Controller, as evidenced by the date first appearing above, until full payment of the loan principal and the interest thereon is received by CDOT. C. Subject to the limitations of paragraph N.S. hereof, the Sponsor shall repay to CDOT the principal amount of the loan, and the interest on the unpaid principal balance of the Loan as described in Exhibit B, which is attached hereto and incorporated herein. D. Subject to the limitations of paragraph IV.S. hereof, the loan to the Sponsor shall bear interest at a rate of two percent (2%) per annum on the unpaid balance compounded annually. The rate shall be fixed for the term of the loan, and interest shall begin to accrue from the date of the loan disbursement. E. Subject to the limitations of paragraph IV.S. hereof, the Sponsor shall make equal installments of $110,213.26 to CDOT on an annual basis beginning on the date that is one year after the date first appearing above, and each year thereafter for nine (9) consecutive years hereinafter referred to as the "payment schedule:' All loan payments of both principal and interest shall be made payable to the Colorado Department of Transportation, and sent to its cash receipts office at 4201 East Arkansas Avenue, Rm. 212, Denver, CO 80222, or to such other place or person as may be designated in writing from time to time by CDOT. F. The Sponsor shall have the option to prepay all or a portion of the loan principal without prepayment penalty at any time(s) prior to the end of the payment schedule term if it so chooses. II. PROMISSORY NOTE: A. Subject to the limitations of paragraph N.S. hereof, for value received, the Sponsor hereby promises to pay to the order of the Colorado Department of Transportation, and send to its cash receipts office at 4201 East Arkansas Avenue Room 212, Denver, Colorado 80222, or to such other place or person as may be designated in writing by CDOT, the principal sum of $990,000.00 with interest thereon and from the date hereof as hereinafter set forth. -2- r • • B. Subject to the limitations of paragraph N.S. hereof, this note shall beaz interest at the rate of two percent (2%) per annum on any unpaid balance. The principal and interest shall be payable, subject to the limitations of paragraph N.S. hereof, in equal annual installments of $110,213.26 each, beginning on the date that is one year after the date first appearing above, and continuing consecutively for nine (9) yeazs thereafter. C. This note is not assumable without the written consent of CDOT. The Sponsor shall have the option to prepay all or a portion of the loan principal without penalty. The Sponsor waives demand, presentment, protest, and notice. D. Subject to the limitations of paragraph N.S. hereof, if any payments aze not received by CDOT on or before the date such payments are due, the Sponsor shall be in default of this agreement, unless the Sponsor has prior written approval to defer the particulaz scheduled payment of the loan. In the event of default, CDOT shall have all rights and remedies available at law or in equity, and such other remedies as provided herein. The rate of interest for any payment on which the Sponsor is in default hereof, subject to the limitations of paragraph N.S. hereof, shall be ten percent (10%) over the effective rate described above, computed from the date of any default to the date of cure. E. Completion of the project(s) shall be the responsibility of the Sponsor, and shall be at no cost to CDOT. The Sponsor shall comply with all applicable terms and conditions of this agreement in utilizing these funds. F. The Sponsor shall at all times during the execution of this loan agreement comply with, all applicable federal and State laws as they currently exist and may hereafter be amended. III. REMEDIES IN EVENT OF DEFAULT: A. Upon the Sponsor`s default in the performance of any covenant or agreement contained in this Agreement, and upon notice to the Sponsor and failure by the Sponsor to cure within thirty (30) days thereof, CDOT, at its option, may, subject to the limitations of paragraph N.S. hereof: (a) terminate the loan commitment herein and take such other steps associated with such termination as are set forth in Section V; (b) declare the entire principal amount of the loan then outstanding immediately due and payable; (c) take any other appropriate legal action. Spec~cally, upon Sponsor's default and failure to cure, CDOT may withhold Aviation Fuel Tax funds that it would otherwise disburse to Eagle County pursuant to the authority in C.R.S. 43-1-113.5(S)(b) until the principal amount of the loan and interest are paid. The Sponsor acla~owledges CDOT's authority to withhold Aviation Fuel Tax funds from Eagle County in the event of Sponsor's default and agrees that, in the event of such withholding, it will not -3- • • contest CDOT's legal authority to withhold such funds. B. The parties acknowledge that in the event of a default caused by financial diff culties that cause the Sponsor to file for adjustment of debt pursuant to the U.S. Bankruptcy Code 11 U.S.C. Sections 901 et sue., or in the event a trustee or receiver is appointed to manage the funds of the Sponsor, CDOT has no adequate remedy at law. In such a case, CDOT may, at its discretion, petition the Court, the trustee or the receiver for any equitable relief, it deems appropriate and the Sponsor agrees not to take a position that CDOT will have an adequate remedy at law. C. Notwithstanding the exercise of any of the remedies above, but subject to the limitations of paragraph IV.S. hereof, the Sponsor shall not be relieved of liability to CDOT for any damages sustained by CDOT by virtue of any breach of this agreement by the Sponsor. IV. GENERAL PROVISIONS: A. All federal and state statutes, regulations, specifications, administration checklists, directives, procedures, documents, and publications that are specifically identified and/or referenced in this contract, together with all exhibits and attachments and addenda to this contract, are incorporated herein by this reference as terms and conditions of this contract as though fully set forth. B. CDOT reserves the right to inspect the completed project or any completed portion thereof in which loan proceeds from the Bank were applied. Notwithstanding any consents or approvals given by CDOT for the project, CDOT will not be liable or responsible in any manner for the structural design, details or construction of any improvements or structures, described in Exhibit A, that are designed or constructed by the Sponsor using the loan amount. C. Neither the commitment of Bank funds to the Sponsor through this contract nor any other security or debt financing instrument issued or executed in connection with the loan to the Sponsor shall constitute a commitment, guarantee, or obligation of the United States. D. This contract may be terminated as follows: (a) Termination for Cause. If, through any cause, the Sponsor shall fail to fulfill, in a timely and proper manner, its obligations under this contract, or if the Sponsor shall violate any of the covenants, agreements, or stipulations of this contract, CDOT shall thereupon have the right to terminate this contract for cause by giving written notice to the Sponsor of its intent to terminate and at least thirty (30) days opportunity to cure the default or show cause why termination is otherwise not appropriate. Subject to the limitations of paragraph N.S. hereof, in the event of termination, the Sponsor shall return any funds that have been disbursed to the Sponsor as part of the Bank loan and any accrued interest thereon -4- • • within 45 days of the date of termination. Notwithstanding the above, but subject to the limitations of paragraph N.S. hereof, the Sponsor shall not be relieved of liability to CDOT for any damages sustained by CDOT by virtue of any breach of the contract by the Sponsor. (b) Termination for Convenience. CDOT may terminate this contract at any time CDOT determines that the purposes of the distribution of funds under the contract would no longer be served by completion of the project; provided that this paragraph shall be ineffective after all amounts to be distributed by CDOT to the Sponsor hereunder shall have been so distributed and this paragraph shall not be construed to require the Sponsor to return any funds previously distributed to it. CDOT shall effect such termination by giving written notice of termination to the Sponsor and specifying the effective date thereof, at least twenty (20) days before the effective date of such termination. (c) Termination Due to Loss of Funding. The patties hereto expressly recognize that the loan is made to the Sponsor with federal and/or State funds which are available to CDOT for the purposes of making a loan for the project described in Exhibit A herein, and therefore, the Sponsor expressly understands and agrees that all its rights, demands and claims to a loan arising under this contract are contingent upon availability of such funds to CDOT. In the event that such funds or any part thereof are not available to CDOT, CDOT may immediately terminate or amend this contract; provided that this paragraph shall be ineffective after all amounts to be distributed by CDOT to the Sponsor hereunder shall have been so distributed and this paragraph shall not be construed to require the Sponsor to return any funds previously distributed to it. E. This contract is subject to such modifications as may be required by changes in federal or State law, or their implementing regulations. Any such required modification shall automatically be incorporated into and be part of this contract on the effective date of such change as if fully set forth herein. Except as specifically provided otherwise herein, no modification of this contract shall be effective unless agreed to in writing by both parties in an amendment to this contract that is properly executed and approved in accordance with applicable law. F. To the extent that this contract may be executed and performance of the obligations of the parties may be accomplished within the intent of the contract, the terms of this contract are severable, and should any term or provision hereof be declared invalid or become inoperative for any reason, such invalidity or failure shall not affect the validity of any other term or provision hereof. The waiver of any breach of a term hereof shall not be construed as a waiver of any other term, or the same term upon subsequent breach. G. This contract is intended as the complete integration of all understandings between the parties. No -5- prior or contemporaneous addition, deletion, or other amendment hereto shall have any force or effect whatsoever, unless embodied herein by writing. No subsequent novation, renewal, addition, deletion, or other amendment hereto shall have any force or effect unless embodied in a written contract executed and approved pursuant to the State Fiscal Rules. H. Except as herein otherwise provided, this contract shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. I. If a conflict occurs between the provisions of this contract proper and the attachments hereto, the priority to be used to resolve such a conflict shall be as follows: 1) The Colorado State Infrastructure Bank Rules and Regulation 2CCR 605-1 2) This contract proper 3) Other contract attachments and exhibits J. It is expressly understood and agreed that the enforcement of the terms and conditions of this contract, and all rights of action relating to such enforcement, shall be strictly reserved to the parties hereto, and nothing contained in this contract shall give or allow any such claim or right of action by any other or third person on such contract. It is the express intention of the parties that any person or entity other than the parties receiving services or benefits under this contract be deemed to be an incidental beneficiary only. K. The Sponsor assures and guarantees that it possesses the legal authority to enter into this contract. The Sponsor warrants that it has taken all actions required by its procedures, by-laws, and/or applicable law to exercise that authority, and to lawfully authorize its undersigned signatory to execute this contract and to bind the Sponsor to its terms. The person(s) executing this contract on behalf of the Sponsor warrants that they have full authorization to execute this contract. L. The Sponsor shall maintain all books, documents, papers, accounting records and other evidence pertaining to project or any cost incurred, and if requested by CDOT, make such materials available to CDOT for three years from the execution date of this agreement. M. This agreement shall not be deemed valid until the Controller of the State of Colorado or such assistant as he may designate shall have approved it. N. Financial obligations of the State of Colorado payable after the current fiscal yeaz aze contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. O. Indemnity: To the extent authorized by law the Sponsor shall indemnify, save, and hold harmless the State against any and all claims, damages, liability and court awazds including costs, expenses, and attorney fees incurred as a result of any act or omission by the Sponsor, or its employees, agents, -6- subcontractors, or assignees pursuant to the terms of this agreement. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions for the parties, of the Colorado Governmental Immunity Act, Section 24-10-101 et seq. C.R.S. or the Federal Tort Claims Act, 28 U.S.C. 2671 et seq. as applicable, as now or hereafter amended. P. The Sponsor agrees to comply with the letter and the spirit of all applicable state and federal laws respecting discrimination and unfair employment practices. Q. The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of this agreement. Any provision of this agreement, whether or not incorporated herein by reference, which provides for arbitration by any extra judicial body or person or which is otherwise in conflict with said laws, rules, and regulations shall be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shall be valid or enforceable or available in any action at law whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent that the agreement is capable of execution. At all times during the performance of this agreement, the Sponsor shall strictly adhere to all applicable federal and state laws, rules, and regulations that have been or may hereafter be established. R. The signatories aver that to their lmowledge, no employee of the State of Colorado has any personal or beneficial interest whatsoever in the service or property described herein. S. Notwithstanding any provision hereof and except as provided in paragraph III.A. with respect to a default and termination, this Agreement and the related Note constitute "Special Facilities" obligations of ECAT as defined in the Trust Indenture dated as of June 1, 1996, as supplemented by a First Supplemental Trust Indenture dated as of June 1, 2001, between ECAT and U.S. Bank National Association (formerly Colorado National Bank), as Trustee, and all financial obligations herein of Sponsor including, without limitation, repayment of the principal amount of the loan evidenced hereby, payment of interest thereon, and payment of any damages, penalty interest, or any other financial obligations in the event of a default by Sponsor, shall be made solely from the revenues payable by Eagle County to ECAT under a sublease between ECAT as lessee and Eagle County as sublessee of the financed facilities and aze contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available by the Eagle County Board of -7- County Commissioners (the "Board); provided that no provision of this Loan Agreement and Promissory Note shall be construed or interpreted as creating a general debt or multiple fiscal year direct or indirect debt or other financial obligation whatsoever of the Sponsor or Eagle County within the meaning of any constitutional, statutory, or contractual provision, and shall be payable solely from amounts that aze appropriated by the Boazd and actually paid to the Sponsor for such purpose. Notwithstanding any provision hereof, this agreement shall terminate on the last day of any fiscal year of the Sponsor in which the Board exercises its right under its sublease to decline to appropriate funds for the payment of any fmancial obligation of the Sponsor hereunder. -8- s IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first above written. STATE OF COLORADO BII.L O S, Governor By Executive Director DEPARTMENT OF TRANSPORTATION ARTHUR L. B T State C oller By GEORGE MC Departnnent Co olle ATTEST: (SEAL By APPROVED: KEN SAT.A%AR Attorney General r// B 01. S!/l~~u 2~ Assis t ttomey Gene al EAG OUNTY AIlt TE ORPORATION By M. Menconi, President Federal Employer Identification Number: -9- EXHIBIT A AIR TRAFFIC CONTROL TOWER PROJECT DESCRIPTION: This project, consists of the design and construction of a new Airport Traffic Control Tower (ATCT) for the Eagle County Regional Airport. Analysis of the site, design and construction of the tower will be in accordance with applicable Federal Aviation Administration and Colorado Department of Transportation requirements. The ATCT will have visibility to all movement areas and sufficient room for expansion. In addition, the new tower provides infrastructure, including more room for air traffic equipment and personnel, needed for continued airport growth and response to market demand. The tower is one piece of the infrastructure that will allow the airport to handle increased traffic when the market demands it. The new tower will measure approximately 115 feet in height and will be located on the north side of the airport. ,' EXHIBIT B COLORADO SIB LOAN DISCLOSURE DOCUMENT Moyer ID Number Agreement Number 84-6000762 AVN FY2003 - 001 n Amount Clone Date (Da. Mo. Yr.) Maturity Date (Da. Mo. $990,000 15-May-2003 15-May-2 msor Nanre. Address. Zip Codes EAGLE COUNTY AIR TERMINAL CORPORATION 500 BROADWAY EAGLE. CO 81631 All CO SIB loans are simple interest amortized loans. The interest rate 1: fixed for the life of the loan. UT: Name. Address, Zip Codes COLO. DEPT. OF TRANSPORTATION 4201 E. ARKANSAS AVE. DENVER CO 80222 ANNUAL INTEREST Loan Amount Total of Payments PERCENTAGE RATE The cost of your The dollar amount The loan amount The amount you loan as a yearly the loan will cost provided to you or will have paid after rate. you. on your behalf. you have made all payments as scheduled- 2.0% $112,132.63 $990,000.00 $1,102,132.63 Schedule: Annual Payment Amount Interest Pdndpal Outstanding Balance Payments Due Date $110,213.26 $19,800.00 $90,413.26 $899,586.74 15-May-2004 $110,213.26 $17,991.73 $92,221.53 $807,365.21 15-May-2005 $110,213.26 $16,147.30 $94,065.96 $713,299.25 15-May-2006 $110,213.26 $14,265.99 $95,947.28 $617,351.97 15-May-20117 $110,213.26 $12,347.04 $97,866.22 $519,485.75 15-May-loos $110,213.26 $10,389.72 $99,823.55 $419,662.20 15-May-2009 $110,213.26 $8,393.24 $101,820.02 $317,842.18 15-May-2010 $110,213.26 $6,356.84 $103,856.42 $213,985.77 15-May-2011 $110,213.26 $4,279.72 $105,933.55 $108,052.22 15-May-2012 $110,213.26 $2,161.04 $108,052.22 ($0.00) 15-May-2013 Aln nnnsNv fnr enAv nnv nif Con vn11r Inon anraamrant fnr anv Additien9l infOrrnBtlon 9bOUflt riOnDaVment. default Total numbers of to annual payments and any repayment in full before the maturiiy date. ., _ • EXHIBIT C Commissioner moved adoption of the following esolution: BOARD OF COUNTY COMMISSIONERS COUNTY OF EAGLE, STATE OF COLORADO RESOLUTION N0.02-~ EAGLE COUNTY REGIONAL AIRPORT REQUEST FOR A COLORADO STATE INFRASTRUCTURE BANK LOAN WITH THE COLORADO AERONAUTICAL BOARD WHEREAS: 1. The General Assembly of the State of Colorado declared in Title 43 of the Colorado Revised Statutes, Article 10, 1991 ("the Act") in C.R.S.43-10-101 "...that there exists a need to promote the safe operations and accessibility of general aviation in this state; that improvements to general aviation transportation facilities will promote diversified economic development across the state; and that accessibility to airport facilities for residents of this state is crucial in the event of a medical or other type of emergency...." 2. The Colorado State Infrastructure bank (COS16) was developed as part of a federal pilot program and 3. The Applicant, Eagle County, is apublic-accessible airport and has filed an application with the Division of Aeronautics and the Aeronautics Board and 4. The Bank is authorized to assist only those entities that request assistance by means of an application which must contain a resolution passed by the governing board of the entity and forwarded to the Division and 5. The Applicant is committed to complying with all temps and conditions of the application and all guidelines, policies, procedures and requirements if a loan is approved. 6. The Applicant owns and operates the Eagle County Regional Airport which is a public-accessible airport and has filed an application with for a Colorado State Infrastructure Bank (COSIB) Loan to be used solely for aviation purposes. NOW THEREFORE BE IT RESOLVED THAT: Eagle County as the duly authorized governing body of the loan applicant, hereby formally requests assistance from the Colorado State Infrastructure Bank in the form of a loan. Eagle County states that such loan shall be used solely for the ~ •- ,. • • purposes generally described in the Application and more particularly described here as construction of a permanent control tower at the Eagle County Airport. FURTHER BE IT RESOLVED: Eagle County hereby accepts all guidelines, procedures, stnadards, and requirements described in the application during al terms and conditions contained therein. MOVED, READ AND ADOPTED by the Board of County Gommissioners of the County of Eagle, State o Colorado, at its regular meeting held the ~~~~ day of , 2002. ATTEST: By: Clerk to the Board of County Commissioners COUNTY OF EAGLE, STATE OF RADO, By and Through Its c~ OF COUNTY COMMISSIONERS A~* UXYJ O~ Michael L. Gallagher, Chairman Board of County Commissioners Tom C. tone C er Am M. Menconi Commissioner Commissioner ~ seconded adoption of the foregoing resolution. ie roll having been called, the vote was as follows: Commissioner Tom C. Stone ~;~ Commissioner Michael L. Gallagher Commissioner Am Menconi ~ This Resolution passed by o`~ -C~ vote of the Board of County Commissioners of the County of Eagle, State of Colorado. 2 Warrant'No. 00043552244 ~ STATE OF COLORADO HAA 03000300313 AVN FY 2003-001 ; 05;19;03 990,000;00 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ _ ~ ~ ~ ~ SAY 203 ~ ~ ~ GCE ~~~ . , ~ ~ ~ , , ~ ~ ~ , • NET ' ' 990,000bO PRINTED ON RECYCLED PAPER NON NEGOTIABLE POLLgRS €,ENTS icxx~~~~ 00~R •.00 '' u'0043 5 5 2 244u^ is LO 2 L009 LBO: 606 800474911' ~~.. r` STATE OF COLORADO DEPARTMENT OF TRANSPORTATION Office of Flnancial Management and Budget OT+ 4201 E. Arkansas Avenue Denver, CO 80222 o~aaareeenr of rnaNSVOmano May 21, 2003 Mark Davidson., Director of Aviation Eagle County Regional~Airport PO Box 850 Eagle, CO 81631 Deaz Mr. Davidson: Enclosed is your CO SIB loan disbursement of $990,000.00 from the Colorado Department. of Transportation. Let us know if we could be of more assistance. Thanks again for your business. Sincerely, ~~,~ ~~~ Will Ware CDOT-OFMB SIB Manager cc: CO S1B file .~ STATE OF COLORADO DEPARTMENT OF TRANSPORTATION Office of Flnancial Management and Budget 4201 E. Arkansas Avenue Denver, CO 80222 May 19, 2003 Mark Davidson, Director of Aviation Eagle County Airport P.O. Box 850 Eagle, CO 81631 Dear Mr. Davidson: OT oeaaRrmn~ir of ~aaNSroaranoN Enclosed is a copy of your executed CO SIB loan agreement. You should receive a check in three to five days. Please call me (303-757-9061) if you have any further questions regarding the disbursement a your loan. Thank you for your business. Sincerel,~y,/ Will Ware CDOT-OFMB SIB Manager o~//..,i cc: CO SIB file Jim Martin, AG