HomeMy WebLinkAboutRES 1981-73 - Board RESOLUTION NO. 81?3
OF_' THE
T r RUCKEE DONNER PUBLIC UTILITY DISTRICT
AUTHORIZING EXECUTION AND SUBMITTAL O.F
UNITED STATES DEPARTMENT OF ENERGY LICENSING LOAN AGREEMENT
WITH RESPECT TO THE BOCA HYDROELECTRIC PROJECT
WHEREAS, the Board of Directors of -the Truck(-;).e Donner Public Utility
District desires to determine the feasibility of deve'lopment of the Boca hy-
droelectric project:
NOW, THLVREFORE, BE IT RESOLVED by the Board of Directors of the
Truckee Donner Public Utility District as f o Z Zowo:
1. The President of the Board is hereby authori2ed to
execute and submit the United States Department of Energy
Licensing Loan Agreement and Promissory Note with respect
.to hydroelectric development at Boca Dam, copies of which
have been attached hereto-*
PASSED AND ADOPTED by the Board of Directors of the Truckee Donner
Public Utility District at a meeting thereof duly caZZed and held in the Dis-
trict on the 19th day of October, .1981., by the, following roll caZZ vote:
f f1w.AYES: Corbett, Duj-y_, KutteZ and Maass.
NO b,"S None.
ABSENT.- Huber.
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
By
Roberta C. Huber-, President
ATTEST:
7
Susan M. Craig, Deputy DistriZt Clerk
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 44ERICA
{"Vr�ited States"}, represented by the Department of Energy ("DUE") and
The Truckee-Donner Public Util i t District is a publi c agency organized
on August -9, 1927 under the2ro-visions of the California Pub I lic ti it Code
effective at that time _(i fy the entity, ee * 1
(hereinafter- re err to as the "Borrower")-, dent*i
Ila corporation organized under the laws of the State of "}
The Borrower has submitted to DOE an appl ication pursuant to the
authorizing Act (Title IV of P.L. 95-,617) and DOE Regulation (10 CFR
797) , for a loan to hel p defray a percentage of the costs of applyi ng
for a necessary 1 icense 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 dains, located at the
Bocv-Dam, Little Truckee River California
the Project")-; and
DOE has examined the Borrower's' request,, which 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 Borrower or
other person who will prepare the application is ca pace le of proper
preparation.
That there exists a reasonable likelihood that the Borrower
will repay the loan.
That the project has tentatively been found to be both technically
and economi cally feasible and environmentally acceptable, such
determination as to economic feasibility having included consiaerd tion
of costs associated with environmental and safety factors.
That al I requirements of the DOE regulation 00 CFR 797), and
of the authurizi rig 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, UOE has determined to provide, funds to
the Borrower, to help defray expenses to be incurred by the Borrower in
preparing the licensirig application upon the following terms and conaitions.
4/7/80
` s
Loan iNo. DE--FM07-81ID59006
I * GENERAL DUTIES AND OBLIGATIONS
1. 1 DOE hereby agrees to loan to the Borrower and Che borruwer
hereby agrees to repay to DOE, with interest, as provided below, ForE i-y-e Tho sand and no/100
w w ww wr_+�w`r r�rrr r.r_ww.rrw_w w.�rww.rr�rw�.rrwr.r«+r�w+r r_rw_w ww war wow ww
DULLMS 455000.00 or any esser sum loaried to the Burrower
under thi s Agreement) on the following terms and conditions, which suss
is ninety percent 9Q.) of the pru j ect ed
totall cost of the app i cat ion, which projected total cost is Fifty Thousand
and no/100--"__.__.ft_..__~OMM. __r_w Saw ww Oft.M....__..__.._.._ DOLLARS ($509000.00 �.
1 .2 DOE will pay to the Borrower within approxiidately 20 days after
the execution of this Loan Agreement one fourth (1/4) of the total loan
amount or a nil riimucn of $10,OOU, whichever is greatest, except in no case
shall payment exceed 9041wo of the loan amount.
1 .3 The Borrc*ie r is to request the payment of the balance of the
loan funds as follows. with each request fur the three addi ti una l
di sbursei2ents of the loan, the Borrower rust provide to DOE documentation,
attested by the Borrower, as to all expenses incurred by the Borrower,
regarding the application since the prior disbursement of the loan funds
to the Burrower. Within six (6) months after the effective date of this
Agreement, the Borrower will provide to DOE three copies of a report
describing 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 aria economical fens i bi l i ty .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 DOE of the report. At such time as
the Borrower files a licensing application acceptaol e to the Federal
Energy Regulatory Commission (FERC) , through consultation with DOE, an
additional one fourth (1/4) of the total loan will be furnished to the
borrower within ninety (90) days following receipt 5y DOE of a copy of
the appl icat icon. With reference to the second and third payments as
outlined above, in no case shall total payments exceed 90% of the loan
amount. At such time as the Borrower receives a license frow FERC or the
appropriate approval (s) for construction, as det enrii ned by DOE, the
ruma i ni ng uutst andi ng balance of the total loan will be paid oy DOE to the
Borrower.
2. LOAN RATE AND REPAYMENT
2.1 The interest rate on the loan is seven and three ei�hths percent
(7-3/8'.1a) per annum. Interest will accrue on the outstanding balance of
the loan curiiinenci ny five days after the issue date of the checks.
2.2 The l oan is to be repaid to DOE over a maximum peri od of ten
(10) years as ful lows:
4f7/80 2
` Loan No.
2*2 *1 The first payment of principal and interest is due on
the first day of the 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 be divided by seven ( 7) .
2,2 *3 Each anniversary date thereafter, one-seventh (1/7)
of the total , as computed in subparagraph 2 .2.2 above, shall be 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 subparagraphs
2.2 .2 and 2.2.3 above will be adjusted accordingly.
2.2 .5 If, during the term of the loan, the Borrower, or an
entity in which the Borrower 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 when
due, shall accrue interest at the then current Federal Reserve Board
discount rate plus an additional two percent (20.0 surcharge, limited to a
minimum of ten percent (10%) , whichever is greater.
2.4 DOE will provide to the Borrower a Loan Repayment Schedule in
the 41th 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 the
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 be
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 83401 ; Attention: Director, Finance Division, unless otherwise
directed in writing by DOE.
3 . CAtJCELLATION/NON-CANCELLATION
3.1 A designated official of the Department of Energy may authorize
the Contracting Officer,to cancel the unpaid balance and/or any accrued
interest of the loan if it is determined an the basis of the reports, or
on the basis of any other information available, that the small hydroelectric
3
Loan No.
power project would not be technically or economically feasible or
env 1 runmental ly acceptable, or if the Borrower has been or wi l l be unable
to ODtaill a necessary license or approval respect i ng the project, ur any
riyht necessary to construct and operate the project, for a reason Beyond
the Borrower's control and despite the Borrower's good faith effort to do
so. Any request by the Borrower for such cancellation must be addressed
tu the Contracting Officer,
3.2 The Department of Energy will not cancel the unpaid balance
arid/or accrued interest of the loan if DOE finds that the Burrower, in
appl yi ng for the loan, (1 ) f a 1*1 ed to provide information reasonably
available to the Borrower which would have indicated that there was not a
reasonaule likelihood that the project would be found to be technically
and economically feasible and environmentally acceptable, or (2) withheld
information indicating that the Borrower would be unable to obtain a
license, approval or right necessary to the project.
3.3 Conditions of cancellation of unpaid balance and/or accrued
interest shall be tnat:
3e3e 1 DOE's obligation to disburse funds under this
loan agreement shall terniinate*
3.3.2 The Borrower shall withdraw any pending license
application for the project.
49 EVENTS QF DEFAULT
4.1 On the occurrence of any "event of default, " as defined
in the following six paragraphs, DOE, at its sole discreti011,. r.lay declare
all of the principal and accrued interest to be due ana payable and may
proceed to enforce the rights of the United States under this Loan
Agreement, These events of default are 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 DOE, a lack of intention
to complete the preparation and filing of the application,
4*192 That the Borrower has, without DOE's approval ,
substantially changed the nature or scope of the application activi-
ties described in the Borrower's submittal to DOE for this loan.
4* 1 *3 That the Borrower has failed to pay any instal l m-ent
or amount of principal or interest when due, at the place specified
herein.
4 e 1 *4 That the Borrower has failed to perform or has
other-wise substantially breached any of the obligations imposed by
this LUdn Agreement or by any other related document.
4
Loan No.
49 .6 That the Burrower i.*-,) i nsol vent or bankrupt, or has
ceased, being unable or adiiiitting in writing the i-riability, to pay
debts as they- i-Jature, or leas wa-de a general assignment for the
benefiL of, or has entered into any composition or arrangement with,,
creditors.
491 *6 That the Borrower has failed to coiiiplete and file are
appropriate licensing application within twelve moat h s
fol lowi ncj the effective date of this Loan Agreement*
50 DEFAULT DETERMINATION
b.l In the event DOE determines the Borrower to have defaulted,
f
DOE shall have tile right, at its option,, to accelerate the i ndebtecnes s
and daia nd full payment of all ainount-s outstanding, both principal and
interest, under the loan.
5.2 No failure on the part of DOE to make demand at any tifne
shall constitute a waiver of the rights held by the United States
under this agreement,
5.3 Upon demand by DOE, the Borrower shall have d period of
not more than 30 days from the date of DOE's demand to iiiake payment
in ful I because of default.
5.4 In the event that tile failure on tile part of *the Borrower
to perform the terms and conditions of this Agreement or d related
document dues riot consti tute an intentional act, but i s oruuc ht about as
a result of circumstances largely beyond the control of the Borrower, or
is deeii,,-ed by DOE to be insubstantial , DOE may elect, as its option, 1:o •
waive the default and/or restructure the repayment required by thi s
Agreement in any inutually acceptable manner.
6* BORROWER 'S USE OF LOAN
6.1 This l uan may only be used by tile Borrower to defray a maximum
of ninety percent (9O G} of the reasonable dnd customary costs of preparing
the application described in the Borrower's submittal to DOE. The
Borrower dyrees not to use any part of the loan to pay for any such cost
ipcurred by the Borrower prior to tile effective date of this Agreement.
No part of this loan may be used to defray dny cost associated with a
finder 's fee or any other costs not normal and customary.
7* REPORTS
7. 1 In addition to the reports requi red of the Borrower under
paragraph 1 .3 above, the Borrower i s required to wake monthly sum, ry
reports to DOE, concern ing the progress and incurred costs of preparing
grid outaining the application. Three copies of the mionthly sumcilary
reports shall be pruvided to DOE no later than three weeks followiny the
Lind of the reporting period.,
J
Loan No.
? i I reports and support i nth docuti-entat i ors required of the
ourrovier under this Agreement are to ue directed by the Borrower to the
attention of the Hydroelectric Prograiii Ma payer, Idaho Operaz i ons office,
U.S. Department of Energy, 55U Second Street, Idaho Falls, I claho 8.3'401 ,
Attention: Peggy Brookshier.
8. BORROWER 'S RECORDS
8. 1 Tile Burrower will keep such records concerning the preparation
of the application as are required by generally accepted account i nc
principles and such other records as DOE onay deers necessary for an
effective audit and performance evaluation of this Agreement. DUE anu
the United States General Accounting Office will have access, for the
purpose of. and i t and exami nat i on, to any pert i nent recor as or oche r
documents of the Borrower during the regular business day, and will be
provided with cupi es of such documents by the Borrower on re uest, and
wi l i have access to the Project site.
y. ASSI`GiNMENTS AND TRANSFERS
9. 1 The Burrower will not assign or transfer this. loan or the
vb l i�jdt i ons of this Agreement without the written consent of DOE.
l0e COPY OF FERN; APPROVED APPLICATION FOR LICENSING
10. 1 The Borrower wi l i provide DOE three copies -and a camera-ready
c upy of the cui-Opl eted 1 i ceris e app 1 i cat i can that has been accepted by FERC
Z
:or processing under FERC rec u l at i ons for filing under Section 4.31 of
FERC Regulations L18 CFR 4,31 ], at the time of completion, or a co cif
copy
tree app 1 t cdt i on as partially completed in the .event of cancellation of
the Juan. Tile camera-ready copy will be suitable for photocu �p�yirly.
11 . CIVIL RIGHTS COMPLIANCE
1 1 .1 The Borrower agrees to comply with civil ri yllt s requirements of
the f u l l uwi ray public laws: Title VI of the Civil Rights Act cif 1964;Title IX of tine Hiryher Education Admendments of 197� 2, Section l6 f
0 the
Federal Energy Aurni ni strat i on Act of 1974; Section 401 of the Energy
Reorganization Act of 1974; Section 504 of the Rehabilitation Act of
1973; and the Age Discrimination Act of 1975. It is further understood
grid agreed that the Burrower will :
1 1 .1 .1 SuUmi t o written assurance that any activity undertaken
in connection with this loan by Borrower, or by a person(s) or
entity over which Borrower has direct or indirect control wi 1 l be
cunduct ed in a ciia nner which does not exclude from part i s i pa t i o t' i n,
ur deny the benefits or services to, individuals on the oasis of
race, color, nati until on yi n, sex, age, or handicap;
w�.r
Loan No.
11 1 2 Designate the person responsible 'f6r coordination of
activities to carry out Borrower's civil rights cumpl iance respons i.,
bil ities; and
11 9 1 *3 Take appropriate i nitial and continuing steps to
notify participants, beneficiaries, applicants and employE!es
that Borrower does not discriminate on the basis of race, color,
national origin, sex, age or handicap.
12* WAIVER
12.1 Presentment, demand of payment, protest, and notice of non payment
and of protest are hereby waived by the Borrower.
13o PROSPECTIVE INVESTORS
73.1 During the term of this Loan Agreement, Burrower will include
in bold print in all advertising, brochures and other communi c at i ons
issued for the purpose of soliciting funds, the following notation.
"PROSPECTIVE INVESTORS ARE HEREBY NOTIFIED 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
14. 1 Performance of this Loan Agreement is secured by a promi ssury
note executed and delivered by and between the parties to this Loan
Agreement on the date of this Loan Agreement, the terms and cunditions of
which promissory note are hereby incorporated into this Loan Ag reement as
f u I ly as i f those terms were set forte at f u I I I ength i n th i s Loan
Agreement.
15o MISCELLANEOUS PROVISIONS
15. 1 The Burrower warrants that no person or selling dgent has been
ei-iployed or retained to solicit or secure this Agreement upon an agreement
or understanding for a commission, percentage, brokerage, or contingent
fee, excepting bona fide employees or bona fide 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 have the right to annul this Agreei--ient without liability or, in its
discretion, to deduct froin the consideration, or otherwise recover, the
full amount of such commission, percentage, brokerage, or contingent
fee.
15.2 No member of or delegate to Congress, or Resident Commissioner.,
shall be adinittea to any share or part of this Agreement, or to any
benefit that may arise therefrom; but this provision shall not be construed
to extend to this Agreement if made with a corporation for its general
benefit,
7
Loan No.
15.3 This Loan Agreement i s not for the benefit of third part i es.
DOE s hal 1 not be under any ool i gati on to any such part i es,, whet her
directly or indirectly interested in such Loan Agreeiiiient, to pay any
charges or expenses incidental to cot'lipl i ance by Borrower with any of
its duties or obligations under 4C.1i is Agreement. Any approvals, reviews,
determinations or findings of DOE related to any pl ans,, speci f i cations,
cuntracts or other documents ruqui red or contemplated by this Loan
Agreement are solely for the beriefit of the United States and shdl l not
constitute approval of the technical adequacy thereof,
15.4 This Load Agreement shall be binding upon Borrower and its
successors and ass iyns and upon DOE and its successors and assigns, dnd
this Luan Agreement shall survive the cl cis ing of the loan and the delivery
of any security document and cancellation of the loan,,
15.5 No delay or failure of the United States in tfie exercise of any
right or rei-liedy hereunder or under any ot her agreement or undertaking
securing or related to the loan shall affect any such right or remedy;
nu .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 shall be deemed a waiver of any such right or remedy.
15.6 This Loan Agreement shal I be interpreted and enforced in
ac c urdaric e with ap pl i c ab l e F ederal law.
l 5.6. 1 Any dispute about a question of fact arising under
this Loan Agreement shal 1 be decided in wr iti rig by tile DOE of f i ci a]
whu executed this Ayreement or his successor. The Borrower
rt,fay, within 14 cal e6dar days af ter .receipt of the decision, rilak"e
written request to that official to reconsider tile decision.
Tile decision (which also shall be in writing) , pursuant to that
request for reconsideration, may be appealed in writing oy the
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 the dispute, shal l
proceed in the same general. manner as when it presides over appeals
invol v i ng contract disputes. Tile dec i s i o'n of the Board on the
d i s put e shall be the final decision of the Secret ary.
15.7 The Prograin Officer for DOE under this Agreemient is, Charles
Gil more, Chi ef, Advanced Technology Branch. The Techni ca l Representative
for DOE, who is the person to contact fcr matters pertaining to thi's
Agreement, is Peggy A.M. Broukshier, Advanced Technology Branch. The
ma i 1 i ily address for both persons is : Advanced Technology Branch, U.S.
Department of Energy, 550 Second Street, Room 107, Idaho Falls, 10 33401e
IN WITNESS WHEREOF, the parties hereto have subscribed this Loan
Agreement as of the day and year first above written,,
THE UNITED STATES OF AMERICA
BY THE U.S. DEPART"I'4ENT OF ENERGY
by
Preston 6. 6rimhal I Contract iny Of ticer
Idaho Operdticans 0 f f i c e
1
. r
Loan No.
BORROWER
TRUCKS E DONNE'R PUBLIC UTILITY DISTRICT
Witness as to signature of
Borrower: Roberta C. llube�43 President
(Name y p-ed
,r
(S-2 g nat ur
Title - af t ors
S s an M. Cra'LIV o Box 309
Name (Typea) bus i ness Addr--e' SS) - -
Deputy District CZe.rk Truckee, Ca ZlYornia 93 734
S--S) .71
Truckee, C'aZ2 f'ornia 95734 M
9
Loan No.
5111?1 C111
DONNER PUBIJ.C UTILITY D1'
Name (Typed)
P. 0. Box 3093 TY-,#uckee._, Cal ifOrnia 95 34
(Addre_s_s�_
1 ) Susan M. Craig cer tify that I am the
DP_122�'t?j -District CZerk of the- D118trtCt named as Borrower
a
here i n-; that Roberta C. 117,d)er Who s i fled thi s
*dent 0 the Board
Aqrktement on the District-_ was thqn Presil
f"Mmm ft- --- -ONOW
ftof Directors of said D11'*1stY)-zcL; ; that said Agre-ement
was du Y sAgne alf of said corporation by authority
or -and n- beh
of its
d f i
governing Dody, and is within the scope of its legal powers, that said
resolution is in ful 1 force dnd effect and has not been rescinded or
modified in any respect,
IN WITNESS WHEREOF, I have hereunto off ixed my 1���d and the seal of
said corporation thiso=,Lzx>� day of Ocbover 19
(SEAL) Susan 14. C i Deputy District CZerk
TRUCKET-ii' DONNER PUBLIC UTILITY DISTRICT
•
10
40
10
Loan No. DE-FM07-81ID59006
UNITED STATES DEPARTMENT OF ENERGY
c i t y
State
Date
PROMISSORY NOTE
FOR VALUE RECEIVEU, the undersigned, ("the Borrower") Truckee-Donner
Public Util tv N strict,, a
-i -- Rublic aqenSy or2 any zed on Augus , under
)
the aravtstong u.f the_ Ca]jfQrnja. PUblic Utility Code effective ve at that time
proinises, to pay to the order of the UNITED STATES OF AMER ICTa-ct i rig by W�
dnd through the Secretary of the Department of Energy for such sUm or
suiris advanced to the Borrower from time to time under a Licensi ng Loan
Agreement entered into between the United States of America, (represented
by the U.S. Department of Energy') and the Borrower, SUCK sum(s) not Co
exceed For Jive Thousand and no/100---- oft"a qftoft� *MGM"New maw
45,2 000.00 M-1 Dollars
J) 4, interest payable as specified in-7fid-t ;
Licensing Loall Agreement, the terms and conditions of which Licensi ng
LUdli Agreement are hereby incorporated into this promissory note as fully
as if those terns and conditions were set forth at ful I I length herei n,
0 IN WITNESS WHEREOF, the Borrower has subscribed. this promissory note
un this 4i
_;,---�-.0e d ay o f * -
rat fare, caused -,.eT, - 19 ,;�/ (or, if. e.g. , corpo-o
promissory note to be suoscribed in its
D t r i ca, name and its Distr�7,'ct seal to be hereunder affixed and attested
by it 4 P7, thereto duly author'zed on this day of
((Tf_f i c e r
October l 9 8.11)0
201=i � PU.L31_JL: 11TLLITY j2_faTjJ1CT
Bo rrowe r
(SEAL)
b
Attest: y 2IT
Roberta flubc)r, Preeidp.nt
13oard of I)irecto,r1s,
� �t e
Ll U ene 1101 t
Title Uerie:i-01 AkznagC2')1Dis%t2-)ict CZerk
Ex-of ficio Secretary