HomeMy WebLinkAboutRes 8173I ........
NOh
I
which
I
1981,
Td, Kutt
NOh
ABSl Hubc
'i 'cm
ffl ■ '■■■■ •'
Loan No. DE-FM07-81ID59006
UNITED STATES DEPARTMENT OF ENERGY
LICENSING LOAN AGREEMENT
THIS AGREEMENT, entered into this day of
19 , effective this same date, between the UNITED STATES OF AMERICA
("United States"), represented by the Department of Energy ("DOE") and
The Truckee-Oonner Public Utility District is a public agency organized
on August 9, 1927 under the provisions of the California Public Utility" Code
effective at that time
(hereinafter referred to as the "Borrower"), (identify the entity, e.g.,
"a corporation oryanized under the laws of the State of ").
I
I
The Borrower nas submitted to DOE an application pursuant to the
authorizing Act (Title IV of P.L. 95-617) and DOE Regulation (10 CFR
797), for a loan to help defray a percentage of the costs of applying
for a necessary license or other Federal, State, regional or local approval
respecting such a project and of participating in any administrative
proceeding regarding such application ("application") for a Small
Hydroelectric Power Project at an existing dam or dams located at the
Boca Dam, Little Truckee River, California
("the Project"); and ~~
DOE has examined the Borrower's request, wnich the Borrower
represents, by entering into this Loan Agreement, to be correct, current
and complete as to its statements of material facts, or else to have
been amended by Borrower to reflect all material changes in such facts,
and has examined other relevant information as appropriate or necessary,
and has found:
That there exists a reasonable likelihood that the 3or"-ower or
other person who will prepare the application is capable of proper
preparation.
That there exists a reasonable likelihood that the Borrower
wi 11 repay the loan.
That the project has tentatively been found to oe ooth technically
and economically feasible and environmentally acceptable, such
determination as to economic feasibility having included consideration
of costs associated with environmental and safety factors.
That all requirements of the DOE regulation (10 CFR 797), ana
of tiie authorizing Act (Title IV of P.L. 96-617), pertaininy to the
issuance of this licensing loan, have been satisfied.
THEREFORE, in consideration of the foregoing, and of the conditions
and covenants contained herein, DOE has determined to provide funds to
the Borrower, to help defray expenses to be incurred oy tne Borrower in
preparing the licensing application upon the following terms and conditions.
4/7/80
.oan ,vj DE-FM07-81ID59006
GENERAL DUTIES AMD OBLIGATIONS
1.1 DCE hereby a9rees W loan to the Borrower and the Borrower
nereoy agrees to repay to DOE, with interest, as pruviaea below, Forty
Fivp Thn|jj;flnd and nn/100-
DOLLMkS ;S 45,000.00 ) i°r d"y lesser sui.i loaned to the Borrower
under this Agreement) on the following terms and conditions, which sum
is ninety percent (_9tt>j of trie projected
total cost of the application, wnich projected total cost is Fifty Thousand
and no/100- -- DOLLARS ($50.000.00 ).
I
I
1.2 DOE will pay to the Borrower within approximately 20 days after
the execution of this Loan Agreement one fourth (1/4) of the total loan
amount or a minimum of S10.00U, whichever is greatest, except in no case
shall payment exceed 90% of the loan amount.
1.3 The Borrower is to request the payment of the balance of the
loan funds as follows. With each request for the three additional
disbursements of the loan, the Borrower must provide to DOE documentation,
attested oj the Borrower, as to all expenses incurred by the Borrower,
regarding the application since the prior disoursement of the loan funds
to the Borrower. Within six (6) months after the effective date of this
Agreement, the Sorrower will provide to DOE three copies of a report
descrioing the activities performed in connection with the application.
If uUE determines that the preparation of the application is proceeding
in a satisfactory manner, and that the preliminary findings are consistent
with the.technical and economical feasibility and environmental acceptabi-
lity of constructing the small hydroelectric power project, an additional
one fourth (1/4) of the total loan will be furnished to the Borrower
within 90 days following receipt by 00E of the report. At such time as
the Borrower files a licensing application acceptaole to the Federal
Energy Regulatory Commission (FERC), through consultation with DOE, an
additional one fourth (1/4) of the total loan will oe furnished to the
Borrower within ninety (90) Jays following receipt by DOE of a copy of
tne application. With reference to the second and third payments as
outlined above, in no case shall total payments exceed 90% of the loan
amount. At sucn time as the Borrower receives a license from FERC or the
appropriate approval(s) for construction, as determined by U0£, the
remaining outstanding oalance of the total loan will De paid oy DOE to the
Borrower.
2. LOAN RATE AND REPAYMENT
2.1 The interest rate on the loan is seven and three eigntns Kercent
(7-3/8%) per annum. Interest will accrue on the outstanding oalance of
the loan commencing five days after the issue date of the checks.
2.2 The loan is to be repaid to DOE over a maximum period of ten
(10; years as follows:
4/7/80
.oan No.
I
I
2.2.1. The first payment of principal and interest is due on
the first day of tne 49th month after the date of issuance of the
first one fourth (1/4) of the loan amount.
2.2.2 The payment due is the interest accrued to the last
day of the 48th month, which will include interest compounded
annually on unpaid interest, added to the outstanding principal
balance, the sum of which will oe divided by seven (7).
2.2.3 Each anniversary date thereafter, one-seventh (1/7)
of the total, as computed in suoparagraph 2.2.2 above, shall oe due
plus all interest accrued in the preceding year on the unpaid
balance of the loan.
2.2.4 Prepayments may be made by the Borrower at any time
without penalty, in which event the computations in subparagrapns
2.2.2 and 2.2.3 above will be adjusted accordingly.
2.2.5 If, during the term of the loan, the 3orrower, or an
entity in which the Sorrower has a substantial interest, as determined
by DOE, undertakes construction of the project, DOE shall demand full
repayment of the outstanding balance of the loan including accrued
interest and principal anytime after the expiration of 60 days from
the date construction has begun.
2.3 Any payments required by this Loan Agreement, if not made «nen
due, shall accrue interest at the then current Federal Reserve 3oaro
discount rate plus an additional two percent (2%) surcharge, limited to a
minimum of ten percent (10%), whichever is greater.
2.4 DOE will provide to the Borrower a Loan Repayment Scnedule in
the 47th month of this Agreement. The Borrower will make all repayments
on the loan to DOE without an invoice by DOE.
2.5 In the event it becomes necessary to enforce repayment of tne
subject loan by suit or action, the Borrower agrees to pay, in addition
to any sum found due DOE under this Agreement, such sum as shall De
adjudged reasonable as attorney fees.
2.6 All payments of principal and interest due to the United States
under this Agreement are to be paid in lawful currency of the United
States to the U.S. Department of Energy, 550 Second Street, Idaho Falls,
Idaho 33401; Attention: Director, Finance Division, unless otnerwise
directed in writing by DOE.
3. CANCELLATION/NON-CANCELLATION
3.1 A designated official of the Department of Energy may autnorize
the Contracting Officer,to cancel tne unpaid oalance ano/or any accrued
interest of the loan if it is determined on the basis of the reports, or
on the basis of any other information available, that tne small nydroelectric
Loan Mo.
I
power project would not be tecnnically or economically feasible or
environmentally acceptaDle, or if the borrower has been or will oe unable
to ootain a necessary license or approval respecting the project, or any
right necessary to construct and operate the project, for a reason oeyono
the Borrower's control and despite the Borrower's good faith effort to dc
so. Any request oy the Borrower for such cancellation must be aoaressea
to the Contracting Officer.
3.2 The Department of Energy will not cancel the unpaid balance
and/or accrued interest of the loan if DOE finds that the Borrower, in
applying for the loan, (1) failed to provide information reasonaDly
available to the Borrower which would have indicated that there was not a
reasonable likelihood that the project would De found to be technically
and economically feasible and environmentally acceptable, or (2) withheld
information indicating that the Borrower would oe unable to obtain a
license, approval or right necessary to tne project.
3.3 Conditions of cancellation of unpaid balance and/or accrued
i nterest snal1 be tnat:
3.3.1 DOE's obligation to disburse funds under this
loan agreement shall terminate.
3.3.2 The Borrower shall withdraw any pending license
application for tne project.
4. EVENTS CF DEFAULT
4.1 On tne occurrence of any "event of default," as oefined
in the following six paragrapns, DOE, at its sole discretion, may declare
all of tne principal and accrued interest to be due ano payable and may
proceed to enforce tne rights of the United States under this Loan
Agreement. These events of default ire as follows:
4.1.1 That the Borrower has substantially reduced the
application activities related to the Project under circumstances
indicating, in the reasonable judgment of 00E, a lack of intention
to complete the preparation and filing of the application.
I 4.1.2 That the Borrower has, wittiout DOE's approval,
suostantially changed the nature or scope of the application activi-
ties described in the Borrower's suDmittal to 00E for this loan.
4.1.3 Tnat the Borrower has failed to pay any installment
or amount of principal or interest when due, at the place specified
nerein.
4.1.4 That the Borrower has failed to perform or nas
otnerwise substantially breached any of the obligations imposed Dy
this Loan Agreement or py any otner related document.
Loan No.
4.1.5 That tlie Borrower is insolvent or bankrupt, or nas
ceased, Deing unable or admitting in writing the inability, to pay
aeots as tney mature, or has wade a general assignment for the
Denefit of, or nas entered into any composition or arrangement with,
creditors.
I
I
4.1.6 That the Borrower has failed to complete and file an
appropriate licensing application within twelve months
following the effective date of this Loan Agreement.
5. DEFAULT DETERMINATION
5.1 In the event DUE determines the Borrower to have defaulted,
DOE shall have the right, at its option, to accelerate tne indebtedness
and demand full payment of all amounts outstanding, ooth principal and
interest, under the loan.
5.2 No failure on the part of DOE to make demand at any time
shall constitute a waiver of the rignts held by the United States
jnder this agreement.
5.3 Upon demand by UOt, tne Borrower shall nave a period of
not more than 3U days from the date of DUE's demand to make payment
in full because of default.
5.4 In the event that the failure on the part of'the Borrower
to perform the terms and conditions of this Agreement or a related
document dues not constitute an intentional act, out is Drought about as
a result of circumstances largely beyond the control of the Borrower, or
is deetued by DOE to be insubstantial, UOE may elect, as its option, to
*aive the default and/or restructure the repayment required by this
Agreement in any mutually acceptable Manner.
o. BORROWER'S USE OF LOAN
6.1 Tiiis loan may only be used by the Borrower to defray a maximum
of ninety percent (90%) of the reasonable and customary costs of preparing
tne application described in the Borrower's submittal to DOE. The
sorrower agrees not to use any part of the loan to pay for any sucn cost
incurred by the Borrower prior to the effective date of this Agreement.
No part of this loan way be used to defray any cost associated with a
finder's fee or any other costs not normal and customary.
7. REPORTS
7.1 In addition to the reports required of the Borrower under
paragraph 1.3 above, the Borrower is required to wane monthly summary
reports to DOE concerning the progress and incurred costs of preparing
and obtaining the application. Three copies of tne monthly summary
reports snail be provided to DOE no later than tnree weeks following the
end of tne reporting period.
_oan No.
7,2 All reports and supporting OGCumentation required uf the
Borrower under tin's Agreement art; to oe directed by the Borrower to the
attention of the Hydroelectric Program Manager, laaho Operations Office,
U.S. Department of Energy, 5bG Second Street, Idano Falls, luaho 33401,
Attention: Peggy Brookshier.
BORROWER'S RECORDS
I
3.1 The dorrower will keep such recorus concerning the preparation
of the application as are required oy generally accepted accounting
principles and such other records as DOE May deem necessary for an
effective audit and performance evaluation of this Agreement. DOE aim
the United States General Accounting Office will have access, for tne
purpose of audit and examination, to any pertinent records or other
documents of the Borrower during the regular Dusiness day, and will be
provided with copies of such documents by the borrower on request, and
will nave access to the Project site.
9. ASSIGNMENTS AND TRANSFERS
9.1 The Borrower will not assign or transfer this loan or the
obligations of tnis Agreement without the written consent of DOE.
10. COPY uF FERC APPROVED APPLICATION FOR LICENSING
I
10.1 The 3orrower will provide DOE three copies ^nd a camera-ready
copy of the completed license application that lias been accepted by FERC
for processing under FERC regulations for filing under Section 4.31 of
FERC Regulations L'8 CFR 4.31], at the time of completiun, or a copy of
the application as partially completed in the event of cancellation of
tne luan. The camera-reaay copy will oe SuitaDle for photocupying.
11. CIVIL EIGHTS COMPLIANCE
11.1 The Borrower agrees to comply with civil rights requirements of
tne following public laws: Title VI of tne Civil Rights Act of 1964,
Title IX of tne Higher Education Admendments of 1972; Section 16 of the
Federal Energy Auinini strati on Act of 1974; Section 401 of the Energy
Reorganization Act of 1974; Section 504 of the Renaoi1Itation Act of
1973; and the Aye Discrimination Act of 1975. It is further understood
and agreed that the Borrower will:
II.1.1 Submit a written assurance that any activity undertaken
in connection with this loan oy Borrower, or oy a person(s) or
entity over which Borrower has direct or indirect control, will be
conducted in a manner which does not exclude from participation in,
or deny the benefits or services to, individuals on tne oasis of
race, color, national origin, sex, age, or Handicap;
Loan No.
11.1.2 Designate the person responsible for coordination of
activities to carry out Borrower's civil rights compliance responsi-
Dil ities; and
11.1.3 Take appropriate initial and continuing steps to
notify participants, beneficiaries, applicants and employees
that Borrower does not discriminate on the basis of race, color,
national origin, sex, age or handicap.
12. WAIVER
I
I
12.1 Presentment, demand of payment, protest, and notice of nonpayment
and of protest are hereby waived by the Borrower.
13. PROSPECTIVE INVESTORS
13.1 During the term of this Loan Agreement, Borrower will include
in bold print in all advertising, brochures and other communications
issued for the purpose of soliciting funds, the following notation:
"PROSPECTIVE INVESTORS ARE HEREBY NOTIFIEu THAT PARTICIPATION IN THIS
PROJECT BY THE DEPARTMENT OF ENERGY IN THE FORM OF A LOAN SHOULD NOT BE
CONSTRUED AS A RECOMMENDATION TO INVEST IN THE PROJECT OR AS AN INDICATION
THAT AN INVESTMENT IN THIS PROJECT IS NOT OF A SPECULATIVE NATURE.
14. SECURITY OF LOAN AGREEMENT
U.l Performance of this Loan Agreement is secured by a promissory
note executed and delivered by and between the parties to this Loan
Agreement on the date of this Loan Agreement, the terms and conditions of
which promissory note are hereby incorporated into this Loan Agreement as
fully as if those terms were set forth at full length in this Loan
Agreement.
15. MISCELLANEOUS PROVISIONS
15.1 The Borrower warrants that no person or selliny agent has been
employed or retained to solicit or secure this Agreement upon an agreement
or understanding for a commission, oercentage, brokerage, or contingent
fee, excepting bona fide employees or bona fioe established commercial
selling agents maintained by the Borrower for the purpose of securing
business. For breach or violation of this warranty, the United States
shall nave the right to annul this Agreewnt without liability or, in its
discretion, to deduct from the consideration, or otherwise recover, the
full amount of such commission, percentage, brokerage, or contingent
fee.
15.2 No memoer of or delegate to Congress, or Resident Commissioner,
snail be admitted to any share or part of this Agreement, or to any
benefit that may arise therefrom; but this provision shall not be construeo
to extend to this Agreement if made with a corporation for its general
benefit.
Loan No.
I
15.3 This Loan Ayreement is not for the Benefit of third parties.
DUE shall not be under any ooligation to any such parties, whether
airectly or indirectly interested in such Loan Agreement, to pay any
charges or expenses incidental to compliance oy Borrower with any of
its duties or obligations under this Agreement. Any approvals, reviews,
determinations or findings of DOE related to any plans, specifications,
cuntracts or other documents required or contemplated oy this Loan
Agreement are solely for the benefit of tne United States and shall not
constitute approval of the technical adequacy thereof.
15.4 This Loan Agreement shall be binding upon Borrower and its
successors and assigns and upon DOE and its successors and assigns, and
this Loan Agreement shall survive the closing of the loan anu the delivery
of any security document and cancellation of the loan.
15.5 No delay or failure of the United States in the exercise of any
right or remedy hereunder or under any other agreement or undertaking
securing or related to the loan shall affect any such right or remedy;
no single or partial exercise of any such right or remedy shall preclude
any further exercise thereof, and no action taken or omitted by the
United States snail oe deemed a waiver of any such right or remedy.
15.5 This Loan Agreement shall be interpreted and enforced in
accordance with applicable Federal law.
I
15.6.1 Any dispute aDout a question of fact arising under
this Loan Agreement shall oe decided in writing by the DOE official
whu executed this Agreement or his successor. The Borrower
may, within 14 calendar days after receipt of the decision, make
written request to that official to reconsider the decision.
The decision (which also shall De in writing), pursuant to that
request for reconsideration, may oe appealed in writing oy tne
Borrower, within 30 calendar days after receipt, to the Chairman,
Board of Contract Appeals, Department of Energy, Washington, D.C.
20545. That Board, when functioning to resolve tne dispute, shall
proceed in the same general mariner as wnen it presides o^er appeals
involving contract disputes. The decision of the Board on the
dispute shall be the final decision of the Secretary.
15.7 The Program Officer for QOE under this Agreement is Charles
Oilmore, Chief, Advanced Tecnnolayy Branch. The Technical Representative
for DUE, who is the person to contact for matters pertaining to this
Agreement, is Peygy A.M. Broukshier, Advanced Technology Branch. The
mailing address for both persons is: Advanced Technology Branch, U.S.
Department of Energy, 550 Second Street, Room 107, Idano falls, ID 33401.
IN WITNESS WHEREOF, the parties hereto have subscribed tins Loan
Agreement as of the day and year first above written.
THE UNITED STATES OF AMERIC*
8Y THE U.S. DEPARTMENT OF ENERGY
By
Preston B. Brimnall, ^ontractiny
Idaho Operations Office
icer
loan No.
BOKROwER
I
I'HiiL,-..-..". EH B . ■
By
witness as to signature of
Borrower:
Roberta C, Huber, ! >■■■■
(Name Typed)
Title .-,,...•;,.,. * ,..;
^Siynature)
Susan M. Craia.
, • ■ , name (Typed;
(business Address]
?34
(Address)
.
I
Loan No.
Rime (Typed)
(Hdaressj
I,
herein; thai"";- ;, ■■ . ', -
Agreement on Delia If of the
, certify that I am the
or the '■"" '■' named as Borrower
_, who signed this
was thv"
I
';;'.■,■■ .■■■■ of said ' j that said Agreement"
was duly signed for arm in behalf of said corporation by authority of its
governing oody, and is within the scope of its legal powers, that said
resolution is in full force and effect and has not been rescinded or
modified In any respect.
IN WITNESS WHEREOF, I have hereunto affixed my hand and the seal of
saia corporation this ' \ - day of ' ' " 19 .
(SEAL)
I
10
Loan No. DE-FM07-81ID59006
UNITED STATES DEPARTMENT OF ENERGY
City
State
Date
PROMISSORY NOTE
I
FOR VALUE RECEIVED, the undersigned, ("the Borrower") Truckee-Donner
Public Utility District, a public agency organized on August y, \'iii, under
thp provisions of the California Public Utility Code effective at that time
promises to pay to the order of the UNITED STATES OF AMERICA acting by
and through the Secretary of the Department of Energy for such sum or
sums advanced to the Borrower from time to time under a Licensing Loan
Agreement entered into between the United States of America, (represented
by the U.S. Department of Energy), and the Borrower, such sum(s) not to
exceed Forty Five Thousand and no/100 Dollars
(S 45,000.00 with interest payable as specified in that
Licensing Loan Agreement, the terms and conditions of which Licensing
Loan Agreement ire hereby incorporated into this promissory note as fully
ai if tnose tanas and conditions were set forth at full length herein.
IN WITNESS WHEREOF, the Borrower has subscribed this promissory note
un this . - - day of ; /- -• , 19 ■ (or, if, e.g., corpo-
ration, '', . . . nas caused this promissory note to be suoscribed in its
name and its '.etriai seal to be hereunder affixed and attested
by its. w icer)
thereto duly authorized on this day of
(SEAL)
Attest:
Officer
i. Eugene
Title
TRUCKED n.wiKR rum.u: urir.rr/ nnmucr
Borrower
by
Roberta 6. Jiuber, Ppgeutent
Board of Direotom _n_
e.;i manager ietriot Clerk
I
11