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RESOLUTION NO. 80-80
RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF UKIAH APPROVING LICENSING LOAN
AGREEMENT WITH U.S. DEPARTMENT OF ENERGY
BE IT RESOLVED that that certain Agreement with the
United States Department of Energy attached hereto and
made a part hereof is hereby approved and the Mayor and
Clerk are authorized to execute same on behalf of the City.
PASSED AND ADOPTED this
day of May
1980, by the following roll call vote:
AYES: Councilmembers Riley, Feibusch, Snyder, Myers, Hckey
NOES: None
ABSENT: None
ATTEST:
City Clerk
Loan No. DE-FMO7-80ID59001
.UNITED STATES DEPA_RTM~NT OF' ENERGY
,,,
LICENSING LOA~N AGREEMENT
THIS AGREEMENT, entered into this day of
19 , effective this same date, between the UNITED STATES OF A/,IERICA
("U~ited States"), represented by the Department of Energy ("DOE") and
_The, ..Ci.t.~/ of Ukiah, incorporated under the laws of the State of California in
.].87.6 by an Act of the State Leqislature
~hereinafter referred to as the "Borrower"), (identify the entity, e.g.,
a corporation organized under the laws of the State of California ").
The Borrower has 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 hake
Mendocino Power Plant on the East Fork of the Russian River, City of Uklah
Mendocino Count,f, S, tate of California
("the P~oject"); 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 r&!evant 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 capable of proper
preparer ion.
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 economically feasible and environmentally acceotabie, such
determination as to economic feasibiiitv having included consideration
of costs associated with environmental and safety factors.
That all requirements of the DOE regulation (10 CFR 797), and
·
of the author iz in% Act (rit. le iV or P.L. 95-6i7), oertainin~_ to ~he
issuance of this licensing loan, have been satisfied.
~HEREFORE. ;n consideratiom o~_ the for~3in~=~ ~ , and o; the ccndi~ion~
and c~venants contained hereia, EOE ha~ deterred_ned ~o ~revide fun,is
'.ne 5orrower, :o held defrav exoenses [o be {ncurred Ov :he _~orrcwe-
oreoarin~ ~ne i icensinz aoolication ,aoon the foiiowi-,- :er~..~$ and
Loan No.
~ ,
1. GENERAL DUTIES ~ND OBLIGATIONS
1.1 DOE hereby agrees to loan ~o the Borrower and the Borrower
hereby agrees to repay to DOE, with interest, as provided below,
_Forty_Nine Thou. sand _Five Hundred and no/lO0 .................
DOLLARS ($49,500.00 ) (or any lesser sum loaned to the Borrower
under this Agreement) on the following terms and conditions, which sum
is Ninety percent (90%) of the projected
total cost of the application, which project'ed total cost is Fifty
.~j. ve. Ibous..and and n0/]00 .......................... DOLLARS ($.55,000.00
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 $10,000, -~hichever is greatest, except in no case
shall payment exceed 90% of the loan amount.
,
1.3 The Borrower is to request the payment of the balance of the
loan funds as follows. With each request for the three additional
disbursements of the loan, the Borrower must provide to DOE documentation,
attested by the Borrower, as to all expens.es incurred by the Borrower,
regarding the application'since the prior disbursement of the loan funds
to the Borrower. Within six (6) months after the effective date of this
Agreement, the Borrower will provide to DOE three copies of a report
describing the activities performed in connection with the application.
If DOE determines that the preparation of the applicatioA is proceeding
in a satisfactory manner, and that the preliminary findings are consistent
with the technical and economical feasibility and environmental acceptabi-
lity of constructing the small hydroelectri'c power project, an additional
one fourth (1/4) of the ,total loan will be furnished to the Borrower
within 90 days following receipt by DOE of the report. At such time as
the Borrower files a licensing application acceptable to the Federal
Energy Regulatory Commission (FERC), through consultation with DOE, an
additional one fourth (1/4) of the total loan will be furnished to the
Borrower within ninety (90) days following receivt by DOE of a copy of
the application. With reference to the second and third oayments as
outlined above, in no case shall total payments exceed 90% of the loan
amount. At such time as the Borrower receives a license from FERC or the
appropriate approval(s) for construction, as determined by DOE, the
remaining outstanding balance of the total loan will be paid by DOE to the
Borrower.
2. LO.tN LITE .~lD REPAY>_~NT
2.1 The interest rate on the loan is seven and one eighth oercen:
(7-1/$%) oer annum. Interest- will accrue on the outstandin~ balance of
the loan commencinz five days afro- the issue date of the checks.
.
2.2 The loan is to be reoaid to DOE over a ma_ximun ~eriod of
(10) years as follows:
:,/7/':0 ' 2
·
Loam 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 loam 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
Dy DOE, undertakes construction of the project, 'DOE shall have the
option of accelerating repayment of the loan and demanding payment
in full any time after the expiration of 60 days from the date construc-
tion 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
disc. ount 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 Schedule 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 the
subject loan bv suit or action, the Borrower agrees to pay, in addition
to anv sum found due DOE under this Agreement, such sum as shall be
adjudged reasonable as attorney fees.
2.6 All paMments of orincioal and intere'st due to the United Sta~es
under this Agreement are to be maid in lawful currency of the United
States to the U.S. Deoartment of Energy, 550 Second Street, Idaho Falls,
Idaho $3'~01; Attention' Director, Finance Division, unless otherwise
directed in wri~in% by DOE.
3 CAi t;,.L~,A. ,.O:U NON- CA~CEL .... ~
3.1 The Deoartmen~ of Energy ma,.' cancel the unmaid balance and/p-
anv' accrued interest of the loan i: it is determinea .on the basis
of the remoras, or on the oasis
Loan No.
that the small hydroelectric power project w~uld not be technically or
economically feasible or environmentally acceptable, or if the Borrower
has been or will be unable to obtain a nec.essary license or approval
respecting the project, or any right 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 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 reasonably
available to the Borrower which would have indicated that there was not a
reasonable likelihood that the project would be found to be technically
and economically feasible and environmentally, acceptable, or (2) withhgld
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 that:
· 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 the project.
4. EVENTS OF DEFAULT
.
4 1 On the occurrence of any "event of default, as defined
in the foll.o, wing six paragraphs, DOE, at its sole discretion, may declare
all of the principal and accrued interest to be due and 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 jud~nent of DOE, a lack of intention
to complete the preparation and filing of the applicatien.
A.1.2 That the Borrower has, without DOE's approval,
substantially changed the nature or scooe of the aool ica[ ion ac[ivi-
. .
ties descriOed in the Borrower's submittal to DOE for this loan.
&.l.3 ~nat the Borrower has failed to oav any installment
or =_mount of princioa! or interest when d~e, at the olace soecifiec
herein.
4.1.4 ~-hat the Borrower has failed to Derform or has
otherwise substantia!lv ~=ached
ia is Loan A~reemenc or '~v any other rela~ed aocumen=.
Loan No.
· 4.1.5 That the Borrower is insolvent or bankrupt, or has
ceased, being unable or admitting in writing the inability, to pay
debts as they mature, or has made a general assignment for the
benefit of, or has entered into any composition or arrangement with,
creditors.
4.1.6 That the Borrower has f~iled to complete and file an
appropriate licensing application within . twe]¥~ months
following the effective date of this Loan Agreement. .
5. DEFAULT.DETErMINATION
5.1. In the event DOE determines the Borrower to have defaulted,
DOE shall have the right, at its option, to accelerate the indebtedness
and demand full payment of all amounts outstanding, both 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 rights held by' the United States
under this agreement.
5.3 Upon demand by DOE, the Borrower shall have a period of
not more than 30 days from the date of DOE'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 does not constitute an intentional act, but is brought about as
a result of circumstances largely beyond the control of the Borrower, or
is deemed by DOE to be insubstantial, DOE may 'elect, as its option, to
waive the default and/or restructure the repayment required by this
Agreement in any mutually acceptable manner.
6. BORRO~,~R'S USE OF LO.~
6.1 This loan may only be used by the Borrower to defray a maximt=n
of ninety percent (90%) of the reasonable and customary costs of preparing
the application described in the Borrower's submittal to DOE. The
Borrower agrees not to use any mart of the loan to pay for any such cost
incurred by the Borrower prior to the effective date of this Agreement.
· .
No part of this loan may be used to defray any cost associated wz~h a
finder's fee or an'/ other costs not normal and customary.
7. .REPORTS
7.1 In addition to the reocrts re~,_'ired of the Borrower und~-
oaragraoh 1.3 adore, t~e Borrower is required to make monthly su~m~arv
remoras ~o DOE c~ncernin~_ the oro~r=ss and incurre~ costs of ~re~ari~
and ob~ainin~ ~ne app!ica[ion. Three cooies~ of the monthly su~-m~arv
remoras ~na!l be oroviJed ~o DOE.
,.
Loan No.
7,2 All report, s and supporting documentation required of the
Borrower under this Agreement are to be directed by the Borrower to the
attention 'of the Hydroelectric Program Manager, Idaho Operations Office,
U.S. Department of Energy, 550 Second Street., Idaho Falls, Idaho 83401.
8 . BORROWER' S RECORDS
8.1 The Borrower will keep such records concerning the preparation
of the application as are required by generally accepted accounting
principles and such other records as DOE may deem necessary for an
effective audit and performance evaluation of this Agreement. DOE and
the United States General Accounting Office will have access, for the
purpose of audit and examination, to any pertinent records or other
documents of the Borrower during the regular business day, and will be
provided with copies of such documents by the Borrower on request, and
will have access to the Project site.
9. ASSIGNMENTS .~ND T~NSFERS
·
9.1 The Borrower will not assign or 'transfer this loan or the
obligations of this Agreement without the written consent of DOE.
10. COPY OF FERC .ABPROVED APPLICATION FOR LICENSING
10.1 The Borrower will provide DOE three copies and a camera-ready
copy of the completed license application that has been accepted by FERC
for processing under ~RC regulations for filing under Section 4.31 of
FERC Regulations [18 CFR 4.31], at the time of completion, or a copy of
the application as partially completed in the event of cancellation of
the loan. The camera-ready copy will be suitable for photocopying.
11 . CIVIL RIGHTS COYLPLI.~WCE
11.1 The Borrower agrees to comply with civil rights requirements of
the following public laws: Title VI of the Civil Rights Act of 1964;
Title IX of the Higher Education Admendments of 197.2; Section 16 of the'
Federal Energy Administration Act of 1974; Sec[ion .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
and agreed that the Borrower wi!l:
!I.1.! Submit a ,~-ritten assurance that any activity undertaken
in connection with this loan bv Borrower, or by a oerson(s) or
entity over '~Rich Borrower has direct or indirec' control, will be
conducted in a manner which does not exclude from oarticioation in,
or deny ~he benefits or services to, individuals on the'basis o:
race, color, national.origin, sex, age, or handicao'
· ~., Desizna[e the oerson res=onsibie f~r ccor!ina::cn ':
ac:ivi~ies :o carry out Borrower's civil -i~a~$ comolza~c=_ res~on~i-
bill, les- ant
Loan No.
11.1.3 'Take appropriate initial and continufng steps to
notify participants, oeneficiaries, applicants and employees
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 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 NOTIFIED TH_AT PARTICIPATION IN THIS
PROJECT BY THE DEPARTMENT OF ENERGY IN THE FORM OF A LOAN SHOULD NOT BE
CONSTRUED AS A RECOM2~N]DATION TO INVEST IN-THE PROJECT OR AS A~N INDICATION
THAT A~N INVEST~WJENT IN THIS PROJECT IS NOT OF A SPECULATIVE NATURE.
14. SECURITY OF LOAN, AGREE>lENT
14-1 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 Agreemen.t, 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 selling agent has been
employed 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 cor~ercial
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 .~greement without liability or, in its
discretion, ~-o deduct from the consideration, or otherwise recover, the
full amount of such commission, percentage, broke_rage, or ¢cn~ingen:
fee.
15.2 No member of Or delegate to Congress, or Resident Ccmmissioner,
shall be admitted to any share or oart of this .~zreemen:, or to any
benefit that may arise t~er. efrom; but this provision shall not be construed
to ex~enci :o tais Agreement if made with a coroora~ion for its zeneral
0erie ~.
Loan No.
15.3 This Loan Agreement is not for the benefit of third parties.
DOE shall not be under any obligation to any such parties, whether
directly or indirectly interested in such Loan Agreement, to pay any
charges or expenses incidental to compliance by Borrower with any of
its duties or obligations under this Agreement. Any approvals, reviews,
determinations or findings of DOE related to any plans, specifications,
contracts or other documents required or contemplated by this Loan
Agreement are solely for the benefit of the 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 and 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 shall be deemed a waiver of any such right or remedy.
15.6 This Loan Agreement shall be interpreted and enforced in
accordance with applicable Federal law.
15.6.1 Any dispute about a question of 'fact arising under
this Loan Agreement shall be decided in writing by the DOE official
who 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 be in writing), pursuant to that
request for reconsideration, may be appealed in writing bv 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 func:ioning to resolve the dispute, shall
proceed in the same general manner as when it presides over appeals
involving contract disputes, llne decision of the Board on the
dispute shall be the final decision of the Secretary.
IN WITNESS :~EREOF, the ~arties hereto have subscribed this Loan
Agreement as of the day and year first above vritten.
T~HE UNITED STATES OF
BYES. DEPART}~NT OF
Preston 3. 3ri~nail, Contrac~in~ 9fficar
idaho 0~erations Off ice
Loan No.
Witness as to signature of
Borrower:
(Signature)
Hattie Tillotson
Name (Typed) "
203 S. School
(Address)
Ukiah, Ca 95482
~o~ow~/c~¥ o~ o~
Hays Hic. kcy
~Name Typed)
Title Mayor
(Business Address)
Ukiah, Ca 95482
Lo an No.
Hattie Tillotson
Name (Type~')
203 South School Street
(Address) ~ -
I, Hmt_t_ie. Ti]]ohson certify that I am the
~it~, Clerk of the Corporation named as Borrower
herein; hat Hays Hickey , who signed this
Agreement on behalf of the Corporation, was then Mayor
of said corporation; that said Agreement
was duly signed for and in behalf of said corporation by authority of its
governing body, 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
said corporation this 9t~ day of 19 8.0
(SEA~)
Loan No. DE-FMO7-80ID59001
UNITED STATES DEPART:,~NT OF ENERGY
City
State
Date
PROMISSORY NOTE
Ukiah
California
May 7, 1980
FOR VALUE RECEIVED, the undersigned, ("the Borrower") The Cit, y of
Ukiah, incorporated under the laws of the State of California in 1876'by
an Act 6f the State Legis|ature
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
~ums 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 Nine Thousand Five Hundred and nor]Q0- _Dollars
($49~500.00 ), with interest payable as specified in that
Licensing Loan Agreement, the terms and conditions of which Licensing
Loan Agreement are hereby incorporated into this promissory note as fully
as if those terms and conditions were set forth at full length herein.
IN WITNESS WHEREOF, the Borrower has subscribed this promissory note
on this 7th day of May , 1980 (or, if, e.g., corpo-
ration, ". . . has caused this promissory note to be .subscribed in its
corporate name and its corporate seal to be hereunder affixed and attested
by its c_it_v Clerk thereto duly authorized on this 7th day of
(or-ricer)
, , ,
, 1%0").
(SEAL)
Officer
CITY OF U.K-IAH
Ma'~/~r
Title
Title City Clerk