Current through Register Vol. 47, No. 5, March 10, 2024
RULE I
-
General Provisions
SECTION
1.
Authority.
These rules are adopted pursuant to the authority contained in
sections 43-1-113.5(3)
CRS.
SECTION
2.
Purpose.
The purpose of these rules is to define eligibility
requirements, prescribe the application and selection processes, and to detail
certain terms for securing financial assistance, for public transportation
projects within the state, from the CO SIB.
SECTION 3.
Applicability.
These rules shall be applicable to any public or private
project sponsor of public transportation projects within the
state.
RULE II
- Definitions
The following definitions shall apply to terms used in the
Rules.
(1) "CO SIB" shall refer to the
Colorado state infrastructure bank.
(2) "CFR" shall mean the code of federal
regulations.
(3) "Commission" shall
refer to the transportation commission of Colorado - the state's transportation
decision-making body.
(4) "CRS"
shall mean the Colorado revised statutes, as amended.
(5) "Default" shall refer to the condition of
a loan where the recipient has failed to meet a contractual obligation and
failed to cure within thirty (30) days, including but not limited to: failure
to make the loan payment; failure to use loan proceeds for stated purpose;
failure to submit progress reports.
(6) "Department" shall refer to the Colorado
department of transportation.
(7)
"Federal-aid program" shall refer to any funds authorized by the United States
congress to assist states in providing for transportation.
(8) "Financial assistance" shall mean a loan
or any credit assistance that the COSIB is authorized to offer.
(9) "Interest rate" shall refer to the
semi-annual interest rate approved by the Commission.
(10) "OFMB" shall refer to the Colorado
Department of Transportation's Office of Financial Management and
Budget.
(11) "Political
subdivision" shall mean a county, municipality, service authority, or special
district authorized to enter into intergovernmental agreements pursuant to
29-1-203(2)
CRS.
(12) "Project sponsor" shall
refer to the entity or organization that is requesting financial
assistance.
(13) "Public-private
initiative" shall mean a nontraditional arrangement between the department and
one or more private or public entities as defined in
43-1-1201(3)
CRS.
(14) "Review committee" shall
refer to the SIB loan review committee as described in Rule IV Section 4 (1)
herein.
(15) "State" shall refer to
the state of Colorado.
(16) "State
agency" shall mean every entity in the executive branch of the state's
government including boards, commissions, departments, divisions, and
offices.
(17) "TIP/STIP" shall mean
the metropolitan planning organization's multiyear transportation improvement
program/statewide transportation improvement program.
(18) "Transportation project" shall mean the
planned undertaking of an endeavor for the purpose of conveying passengers or
goods.
RULE III
-
Eligibility Requirements for Financial Assistance
SECTION 1.
Eligible project
sponsors
Entities eligible to receive financial assistance from the CO
SIB shall include public entities such as political subdivisions and state
agencies. Also, private companies and non-profit organizations shall be
eligible either with a local government partner, or under the authority of a
public-private initiative.
SECTION
2.
Eligible projects
(1) Only qualified projects shall be eligible
for financial assistance. Qualified projects shall include any
commission-authorized project, right-of-way acquisition, federal-aid project,
maintenance project, or safety project.
(2) Commission authorized projects - Any
public or private transportation project as authorized by the commission
including, but not limited to planning, environmental impact studies,
feasibility studies, engineering, construction, reconstruction, resurfacing,
restoring, rehabilitation, or replacement of a public or private transportation
facility within the state.
(3)
Right-of-way acquisitions - The acquisition of real or personal property, or
interests therein, for a public or private transportation facility within the
state.
(4) Federal projects - Any
highway, transit, aviation, rail, or other transportation project within the
state that is eligible for financing or financial assistance under state or
federal law.
(5) Maintenance
projects - The maintenance, repair, improvement, or construction of any public
or private highway, road, street, parkway, transit, aviation, or rail project
within the state.
(6) Safety
Projects - The acquisition, improvement, or construction of rights-of-way,
bridges, tunnels, railroad-highway crossings, drainage structures, signs,
guardrails, or protective structures within this state.
SECTION 3.
Ineligible Projects
Qualified projects shall not include transportation facilities
and other transportation projects that are restricted to private
use.
RULE IV
- Disbursement of Moneys
SECTION
1.
Application process
(1) All applications shall be submitted to
the department. The application shall be completed as described in the
application package. If the application received by the department is
incomplete, at that time it shall be rejected and not considered for financial
assistance until completed.
(2)
Application package - The application package shall contain instructions and
guidelines for completing the application and such package shall be available
upon request. The project sponsor shall be responsible for requesting an
application package from the department.
SECTION 2.
Project evaluation
The overall objective of the project evaluation process is to
provide a mechanism for the recommendation of potential transportation projects
for financial assistance to the Commission. The evaluation shall identify how
such project will benefit from financial assistance and the capability of the
project sponsor to meet the terms for debt repayment. The review committee
shall evaluate the projects, and provide documentation and a recommendation
regarding each project.
SECTION
3.
Evaluation criteria
(1) Project evaluations shall be accomplished
by incorporating a rating scheme across specific criteria as described
below:
(2) Project Type - Project
sponsors shall identify the type of project (road and highway, transit,
aviation, and rail). This shall allow the commission to promote its objectives
regarding types of transportation projects assisted by the CO SIB.
(3) Public/Private Partnerships - Project
sponsors shall indicate whether it is a public or private entity. An evaluation
on the basis of public/private partnerships shall allow the CO SIB to
facilitate transportation projects that promote public purposes and feature
some private financing.
(4)
Financial Need - Project sponsors shall submit financial and technical
information as requested in the application to help identify how sponsored
transportation projects would benefit financially from financial
assistance.
(5) Repayment Source -
The project sponsor shall present a statement of revenue sources for the
purpose of paying back loans, e.g., fees, HUTF revenues, local option sales
taxes, and general fund property taxes. This criterion shall allow the sponsor
to demonstrate its ability to repay the loan.
(6) Security Provisions - The project sponsor
shall be required to identify security provisions, e.g., HUTF revenues,
property, bank reserves. This criterion shall allow a measure of the project
sponsor's potential to secure the loan.
(7) Financial Ratios - Project sponsors shall
provide the appropriate information requested in the application regarding its
current financial condition and substantiating documentation on the total cost
of the project including additional funding sources that the sponsor may intend
to use to complete the project. This criterion shall demonstrate the project
sponsor's commitment to its project and validate the cost of the
project.
(8) Term of Financial
Obligation-The project sponsor shall indicate how long it needs to repay the
loan up to ten years. This criterion shall illustrate the length of the CO
SIB's financial obligation to a project sponsor's transportation project, which
is important to replenishing the Colorado state infrastructure bank's capital
to accommodate future financial assistance to subsequent applicants.
(9) Project Viability - Project sponsors
shall reveal any other options for funding the project. This criterion shall
provide a measure of a project's viability without financial assistance from
the CO SIB.
(10) Project Benefits -
Project sponsors shall be required to briefly describe the benefits of its
transportation project. As a counterpoint, project sponsors shall also be
required to describe the likely negative effects of NOT receiving financial
assistance from the CO SIB. This criterion shall identify benefits gained, from
the transportation project receiving financial assistance, to transportation
system.
(11) Project Planning - In
order to demonstrate local commitment as part of a fiscally constrained plan,
project sponsors shall indicate if their project is in the
TIP/STIP, eligible to be amended into the TIP/STIP, in another approved
transportation planning document, or not in any
plan.
SECTION
4.
Review committee
(1) The review committee shall consist of the
following: one member of the Colorado transportation commission who will chair
the review committee; the regional transportation director from the appropriate
engineering region or the divisional director, from the aeronautics division,
or transit and rail division as appropriate; the CDOT chief financial officer
or manager of OFMB, and the CO SIB administrator.
(2) Duties of the committee
The review committee shall evaluate loan applications based
upon the responses to the criteria described in section 3 of Rule IV herein;
examine loan documentation including the sponsor's financial statements to
assure that a pending loan meets CO SIB rules standards and statutory
guidelines; review the planning and engineering aspects of the loan project.
Also, develop procedures for executing loan contracts and, as required
reviewing and, if appropriate recommending amending the terms of already
executed loan contracts, periodically review maturing loans and progress
reports, and in case of default, decide what collection efforts should be taken
to restore past-due loans and other nonperforming loans to satisfactory
condition.
(3) Evaluations
from the committee
The review committee shall submit its recommendation and final
evaluation to the OFMB. Regardless of the merits of the project or its total
cost, the committee shall not recommend to the Commission that it lend an
applicant an amount that it considers beyond the applicants capacity to repay
even if it means the project cannot go forward at that
time.
SECTION
5.
Funding procedure
The OFMB shall present the review committee's recommendation
and evaluation to the commission for action, and the commission shall set the
maximum level of financial assistance for the project.
SECTION 6.
Loan agreement
(1) The OFMB shall negotiate the terms of a
loan agreement with the approved project sponsor.
(2) Fiduciary provisions - Unless
specifically exempted by the Commission, loan agreements for construction will
specify that the funds will be disbursed in their entirety to a third party
fiduciary or escrow agent with which the project sponsor has entered into an
agreement. It shall be the responsibility of the said agent to validate
requests for construction draws by the contractor and to provide periodic
advances of fund to the contractor, as authorized by the terms of the
construction contract. The third party administrator of the loan shall also
provide periodic progress reports to the committee. In instances where the loan
is for the purchase of real property unrelated to a construction project or for
the purchase of equipment, the third party will disburse the funds upon
presentation of the requisite documentation demonstrating that the property or
equipment procured is that for which the loan was approved and that the amounts
paid match those presented in the loan application.
(3) Ongoing interest - The loan agreement
shall specify that the Department retains a collateral interest in the item(s)
procured with the loan proceeds and that the sponsor may not sell the items
procured until such time as payment in full is made upon the
loan.
RULE V
- Interest Rates and Fees
(1)
Interest earnings and/or origination fees are required to re-capitalize the CO
SIB and to offset a portion of the cost of its administration. There shall be
no interest free loans. However, interest payments may be delayed for up to two
years, and all accrued interest can be capitalized into the principal
outstanding balance. In addition, an origination fee to partially offset the
cost of administering the CO SIB may be assessed. If such fee is assessed, the
calculated amount can be added to principal to be repaid according to the
agreed upon amortization schedule.
(2) Interest Rate-The interest rate for loans
from the CO SIB shall be established and by resolution,
adopted by the commission not later than June 30, of each year
for loans applied for during the ensuing months of July; August; September;
October; November; December. An interest rate shall be established and by
resolution, adopted by the commission not later than December 31, of each year
for loans originating during the ensuing months of January; February; March;
April; May; June.
(3)
Origination Fee - Pursuant to
43-1-113.5(7)
CRS a fee may be charged to reimburse the department for reasonable expenses
incurred while administering the CO SIB. Not later the June 30, of each year
the commission shall determine whether or not to assess an origination fee for
the ensuing fiscal year. If assessed the origination fee schedule shall be as
follows: a maximum of one percent for loan proceeds up to $1 million,
three-quarters of a percent for loan proceeds over $1 million and up to $2.5
million, one-half percent on the amount of loan proceeds over $2.5 million and
up to $5 million, and one-quarter percent on the amount of loan proceeds over
$5 million.
RULE VI
- Repayment of Loans
SECTION 1
Loan amortization
Financial assistance in the form of a loan shall be amortized
and simple interest shall be applied to the outstanding principal of each loan.
An amortization schedule shall be attached to the loan agreement between the
department and the project sponsor.
SECTION 2.
Payback Period
The payback period for financial assistance shall be not more
than ten years. The term of a loan requested by a project sponsor shall be one
of the criteria used for evaluation.
SECTION 3.
Remedies in case of
default(1) If a recipient of financial
assistance from the CO SIB fails to meet any of the terms or conditions of the
loan agreement and fails to cure within thirty (30) days the recipient shall be
in default, as defined in Rule II (5). The department shall notify the
recipient of the condition. If the recipient fails to cure within thirty (30)
days thereof, the department may declare the entire principal amount of the
loan then outstanding immediately due and payable, and bring a right of action
against such recipient in district court to seek any applicable legal or
equitable remedy, including reasonable attorney fees.
(2) Default on loan repayment
If the recipient does not make a scheduled payment and fails to
cure within thirty (30) days, the department may assess a LATE CHARGE penalty
or initiate debt collection efforts to recover the amounts due.
Entire rule eff.
11/30/2009.
