HomeMy WebLinkAbout82-152 - Balboa Marina Basin Loan AgreementRESOLUTION NO. 82 -152
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH ACCEPTING THE TERMS AND
CONDITIONS AND AUTHORIZING THE MAYOR TO
EXECUTE A LOAN AGREEMENT FOR THE BALBOA MARINA
BASIN PROJECT
• WHEREAS, the City of Newport Beach has applied to the
California Department of Boating and Waterways for a small craft
harbor construction loan in the sum of $2,500,000.00; and
WHEREAS, repayment of this loan shall be made from
gross revenues originating from fees and rentals charged and
received by the City of Newport Beach for services, facilities
and leaseholds provided in and around the Balboa Yacht Basin; and
WHEREAS, funding of the loan must be preceded by the
adoption of a resolution which accepts the terms and conditions
of the loan agreement and the City is desirous of accepting the
terms and conditions of said agreement;
NOW, THEREFORE, the City Council of the City of Newport
Beach hereby resolves to accept the terms and conditions of the
Small Craft Harbor Loan and Operation Contract, a copy of which
is attached to this resolution as Exhibit "1" and further
resolves to accept the standard terms and conditions which are
attached to the Small Craft Harbor Construction Loan and
Operation Contract as Exhibit "A "; and
BE IT FURTHER RESOLVED'that the Mayor of the City of
Newport Beach is hereby authorized as the person who shall
execute the Small Craft Harbor Loan and operation Contract on
behalf of the City of Newport Beach.
Adopted this 22nd day of November , 1982.
G 4
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•ATTEST:
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City Clerk
RSP/ Ba 1 boa 2
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lli SMALL CRAFT.` HARBOR
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21. LOAN AND OPERATION CONTRACT
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3 This CONTRACT is entered into on November 1, 1982, between the California
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4 iDepartment of Boating and Waterways (DEPARTMENT) and the City of Newport Beach
5 ! (APPLICANT) .
6i The DEPARTMENT and the APPLICANT agree as follows:
• 7 1. Ord TRACT
8 This contract incorporates EXHIBIT A, Small Craft Harbor Construction
9 Loan and Operation Contract Standard Terms and Conditions, and EXHIBIT B,
10 Balboa Marina Basin Feasibility Report.
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12 (a) The DEPARTMENT will make a construction loan in the amount of TWO
13 MILLION FIVE HUNDRED THOUSAND DOLLARS ($2,500,000) to the APPLICANT in
14 accordance with EXHIBIT A.
i5l (b). The loan will bear compound interest at the rate of SEVEN AND
16 NINE - TENTHS PERCENT (7.9 %) per annum on the unpaid balance commencing with
17 the date of each transfer of loan funds by the DEPARTMENT.
18 3. LOAN REPAYMENT
19 (a) Repayment of the loan shall be made from gross revenues originating
20 from fees and rentals charged and received by. the APPLICANT for services,
21 facilities and leaseholds provided or located within the pro3ect area defined
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22 by EXHIBIT B; such gross revenues shall constitute sole security for loan
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STD. 113 'AM 9.72.
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repayment.
(b) Repayment to the loan shall begin on August 1, 1985.
4. SPECIAL PROVISI.ONS
(a) The APPLICANT certifies that the obligation created by this
contract will not create an indebtedness or liability contrary to the
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STAYS OF CALKOPY4
STD. 113 1PEV. 6.72.
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provisions of Section 18 of Article XVI of the Constitution of the State of
California.
(b) If the APPLICANT elects not to substantially complete the project
defined by this contract, then all moneys expended by the APPLICANT prior
to the date of such election shall be due and payable by the APPLICANT to
the DEPARTMENT no later than ONE HUNDRED EIGHTY (180) days following the
close of the fiscal year in which the election has been made.
(c) The APPLICANT shall review berthing charges of public and privately
owned boating facilities in the genera]. area of Newport Bay, serving the
same boating public, and shall then set. rates at comparable levels for com-
parable facilities and services; however, the rates for the rental of berths
at the harbor shall not be less than $7.50 per foot`of boat or berth length
(whichever is longer) per month on July 1 of the year preceding the commence-
ment of loan repayment. The APPLICANT shall adjust such rates as necessary
to keep them at comparable levels with other public and privately owned
boating facilities in the general area; however, such adjustments shall be
made on less than once each year and shall not be less than the equivalent
percentage change (over the preceding year) in the United States Bureau of
Labor Statistics' Consumer Price Index for the United States, or such other
index as selected by the DEPARTMENT.
(d) Notices required between the parties shall be deemed to have been
given when mailed to the respective addresses below, first -class postage
prepaid thereon.
To DEPARTMENT: Department of Boating and Waterways
1629 S Street
Sacramento, California 95814
To APPLICANT: City of Newport Beach
3300 Newport Boulevard
Newport Beach, California 92663
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STD. 113 IRE so R�ITr
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STATE OF CALIFORNIA
DEPARTMENT OF BOATING'AND WATERWAYS CITY OF NEWPORT BEACH
By
Date Signed Date Signed
I hereby certify that all conditions for exemption set forth in State
Administrative Manual Section 1209 have been compiled with and this
document is exempt from review by the :Department of Finance.
DIRECTOR
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EXHIBIT A
SMALL CRAFT HARBOR
CONSTRUCTION LOAN AND OPERATION
CONTRACT
STANDARD TERMS AND CONDITIONS
ARTICLE I - DEFINITIONS
A. CONTRACT means the contract to which these standard terms and
conditions are appended.
B. PROJECT means the small craft harbor project as described by and
constructed pursuant to this CONTRACT.
C. PROJECT AREA means the area delineated in EXHIBIT B, within which
the PROJECT will be undertaken.
D. PROJECT COSTS mean those management, design, material, labor or
construction costs which are necessarily incurred by the APPLICANT
for the purpose of completing the PROJECT; however, such PROJECT
COSTS shall not include indirect or overhead charges claimed by
the APPLICANT and shall not: include any expenses incurred prior
to the effective date of this CONTRACT.
E. LOAN means a loan provided pursuant to Harbors and Navigation Code
Section 71.4 to finance all or part of the PROJECT COSTS; the LOAN
shall be made for a period of THIRTY (30) years commencing with the
issuance of the first LOAN warrant by the DEPARTMENT.
F. ACCOUNT means the account to be established by the APPLICANT for
the deposit of LOAN funds; such account to be designated the
CAL BOATING LOAN - Marina Development Account.
G. FUND BALANCE means those revenues received by the APPLICANT.from
any source within the PROJECT AREA less the APPLICANT's expenses
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EXHIBIT A
SMALL CRAFT HARBOR
CONSTRUCTION LOAN AND OPERATION
CONTRACT
STANDARD TERMS AND CONDITIONS
ARTICLE I - DEFINITIONS
A. CONTRACT means the contract to which these standard terms and
conditions are appended.
B. PROJECT means the small craft harbor project as described by and
constructed pursuant to this CONTRACT.
C. PROJECT AREA means the area delineated in EXHIBIT B, within which
the PROJECT will be undertaken.
D. PROJECT COSTS mean those management, design, material, labor or
construction costs which are necessarily incurred by the APPLICANT
for the purpose of completing the PROJECT; however, such PROJECT
COSTS shall not include indirect or overhead charges claimed by
the APPLICANT and shall not: include any expenses incurred prior
to the effective date of this CONTRACT.
E. LOAN means a loan provided pursuant to Harbors and Navigation Code
Section 71.4 to finance all or part of the PROJECT COSTS; the LOAN
shall be made for a period of THIRTY (30) years commencing with the
issuance of the first LOAN warrant by the DEPARTMENT.
F. ACCOUNT means the account to be established by the APPLICANT for
the deposit of LOAN funds; such account to be designated the
CAL BOATING LOAN - Marina Development Account.
G. FUND BALANCE means those revenues received by the APPLICANT.from
any source within the PROJECT AREA less the APPLICANT's expenses
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EXHIBIT A
SMALL CRAFT HARBOR
CONSTRUCTION LOAN AND OPERATION
CONTRACT
STANDARD TERMS AND CONDITIONS
ARTICLE I - DEFINITIONS
A. CONTRACT means the contract to which these standard terms and
conditions are appended.
B. PROJECT means the small craft harbor project as described by and
constructed pursuant to this CONTRACT.
C. PROJECT AREA means the area delineated in EXHIBIT B, within which
the PROJECT will be undertaken.
D. PROJECT COSTS mean those management, design, material, labor or
construction costs which are necessarily incurred by the APPLICANT
for the purpose of completing the PROJECT; however, such PROJECT
COSTS shall not include indirect or overhead charges claimed by
the APPLICANT and shall not: include any expenses incurred prior
to the effective date of this CONTRACT.
E. LOAN means a loan provided pursuant to Harbors and Navigation Code
Section 71.4 to finance all or part of the PROJECT COSTS; the LOAN
shall be made for a period of THIRTY (30) years commencing with the
issuance of the first LOAN warrant by the DEPARTMENT.
F. ACCOUNT means the account to be established by the APPLICANT for
the deposit of LOAN funds; such account to be designated the
CAL BOATING LOAN - Marina Development Account.
G. FUND BALANCE means those revenues received by the APPLICANT.from
any source within the PROJECT AREA less the APPLICANT's expenses
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for (1) LOAN repayment, and (2) operation and maintenance of the
PROJECT.
ARTICLE II - TERM OF CONTRACT
A. The term of this CONTRACT shall begin on the effective date of the
CONTRACT and continue until the IRAN, including all principal and
interest, is repaid in full.
B. This CONTRACT may be extended, amended or cancelled upon agreement
of all parties.
ARTICLE III - DISBURSEMENT OF LOA
A. Conditions Precedent - The DEPARTMENT shall have no obligation to
disburse money under this CONTRACT unless and until:
1. The APPLICANT demonstrates to the satisfaction of the DEPARTMENT
it has title to, or adequate interests in, the real property -
comprising the PROJECT AREA, including but not limited to the
following:
a) land access to the PROJECT AREA by a maintained public way,
and
b) a right of passage over a waterway, open to the public,
between the PROJECT and navigable waters, and
c) easements or other rights of way outside the PROJECT AREA
to provide utilities and services to the PROJECT.
2. The APPLICANT demonstrates that it has acquired permits necessary
to construct and operate the PROJECT.
B. LOAN payments to cover PROJECT COSTS may be made either (1) through
LOAN advances or (2) in arrears.
1. LOAN advances shall be subject to the following conditions:
a) The APPLICANT may request a LOAN advance from the DEPARTMENT
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for (1) LOAN repayment, and (2) operation and maintenance of the
PROJECT.
ARTICLE II - TERM OF CONTRACT
A. The term of this CONTRACT shall begin on the effective date of the
CONTRACT and continue until the IRAN, including all principal and
interest, is repaid in full.
B. This CONTRACT may be extended, amended or cancelled upon agreement
of all parties.
ARTICLE III - DISBURSEMENT OF LOA
A. Conditions Precedent - The DEPARTMENT shall have no obligation to
disburse money under this CONTRACT unless and until:
1. The APPLICANT demonstrates to the satisfaction of the DEPARTMENT
it has title to, or adequate interests in, the real property -
comprising the PROJECT AREA, including but not limited to the
following:
a) land access to the PROJECT AREA by a maintained public way,
and
b) a right of passage over a waterway, open to the public,
between the PROJECT and navigable waters, and
c) easements or other rights of way outside the PROJECT AREA
to provide utilities and services to the PROJECT.
2. The APPLICANT demonstrates that it has acquired permits necessary
to construct and operate the PROJECT.
B. LOAN payments to cover PROJECT COSTS may be made either (1) through
LOAN advances or (2) in arrears.
1. LOAN advances shall be subject to the following conditions:
a) The APPLICANT may request a LOAN advance from the DEPARTMENT
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STD. 113 RAE B.IT
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to cover those PROJECT COSTS expected to occur in the
succeeding THIRYPY. (30) day period.
b) Requests for LOAN advances may not be made more than once
every THIRTY (30) days.
C) All advanced LOAN funds shall be deposited in the ACCOUNT
which shall reflect all receipts and expenditures of LOAN
funds.
d) All expenditures of advanced LOAN funds shall be made only
after receiving the written approval of the DEPARTMENT;
requests for such approval must be accompanied by invoices
or other evidence of PROJECT COSTS and may be made only
once every THIRTY (30) days.
e) The APPLICANT shall request DEPARTMENT approval of the
final expenditure of advanced LOAN funds no later than
THIRTY (30) days following the DEPARTMENT approval of
PROJECT acceptance.
f) The DEPARTMENT may withhold from LOAN advances an amount
equal to TEN PERCENT (10 %) of approved PROJECT COSTS until
the DEPARTMENT has approved the acceptance of the PROJECT
per ARTICLE IV -B -4.
g) All LOAN funds advanced by the DEPARTMENT to the APPLICANT
shall remain the property of the DEPARTMENT until such funds
are approved for expenditure by the DEPARTMENT.
h) The APPLICANT may invest any advanced LOAN funds that are
not required to meet immediate contractual obligations; any
interest accrued from such investments shall be deposited in
the ACCOUNT and shall be used to help pay the PROJECT COSTS.
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i) The APPLICANT shall return to the DEPARTMENT any LOAN funds
remaining in the ACCOUNT after all PROJECT COSTS have been
paid; such LOAN funds shall be
(1) returned to the DEPARTMENT no later than SIXTY (60)
days following date of acceptance of the PROJECT by
the APPLICANT, and
(2) applied to the reduction of the LOAN.
2. LOAN payments made in arrears shall be made as follows:
a) The APPLICANT may request a LOAN payment in arrears not
more than once every THIRTY (30) days; such requests must
be accompanied by invoices or other evidence of PROJECT
COSTS.
b) The APPLICANT shall record such payments in the ACCOUNT.
c) The DEPARTMENT may withhold from LOAN payments an amount
equal to TEN PERCENT (1.0 %) of approved PROJECT COSTS until
DEPARTMENT approval of PROJECT acceptance.
d) The APPLICANT shall request the final LOAN payment no later
than THIRTY (30) days following DEPARTMENT approval of
PROJECT acceptance.
C. The DEPARTMENT may withhold any LOAN payment if the APPLICANT
fails to comply with any of the provisions of this CONTRACT.
ARTICLE IV - CONSTRUCTIOV OF PROJECT
A. The APPLICANT shall accept construction of the PROJECT no later
than may 1, 1986
B. The APPLICANT shall obtain from the DEPARTMENT advance written
approval of the following:
1. All bid documents prior to advertisement,
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8-71.
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i) The APPLICANT shall return to the DEPARTMENT any LOAN funds
remaining in the ACCOUNT after all PROJECT COSTS have been
paid; such LOAN funds shall be
(1) returned to the DEPARTMENT no later than SIXTY (60)
days following date of acceptance of the PROJECT by
the APPLICANT, and
(2) applied to the reduction of the LOAN.
2. LOAN payments made in arrears shall be made as follows:
a) The APPLICANT may request a LOAN payment in arrears not
more than once every THIRTY (30) days; such requests must
be accompanied by invoices or other evidence of PROJECT
COSTS.
b) The APPLICANT shall record such payments in the ACCOUNT.
c) The DEPARTMENT may withhold from LOAN payments an amount
equal to TEN PERCENT (1.0 %) of approved PROJECT COSTS until
DEPARTMENT approval of PROJECT acceptance.
d) The APPLICANT shall request the final LOAN payment no later
than THIRTY (30) days following DEPARTMENT approval of
PROJECT acceptance.
C. The DEPARTMENT may withhold any LOAN payment if the APPLICANT
fails to comply with any of the provisions of this CONTRACT.
ARTICLE IV - CONSTRUCTIOV OF PROJECT
A. The APPLICANT shall accept construction of the PROJECT no later
than may 1, 1986
B. The APPLICANT shall obtain from the DEPARTMENT advance written
approval of the following:
1. All bid documents prior to advertisement,
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2. All contracts prior to award.
3. All construction change orders, and
4. Acceptance of the PROJECT by the APPLICANT.
C. Plans and specifications for the construction of the PROJECT shall:
1. Be prepared by persons licensed by the State of California to
undertake the type of design required by the PROJECT (engineer's/
architect's certificate number to appear on construction contract
design documents),
2. provide for all PROJECT facilities set forth in EXHIBIT B, and
3. provide for shoreside facilities for removing waste from vessel
holding tanks in accordance with Section 654.1 of the Harbors
and Navigation Code and Section 5200 .of the California Adminis-
trative Code, Title 14.
D. All contracts for construction of the PROJECT shall:
1. Be awarded in accordance with all applicable laws and regulations.
2. Contain the following clause: "Representatives of the Department
of Boating and Waterways shall be allowed access to all parts
of the construction work."
3. Contain a clause that there shall be no discrimination against
any employee who is employed in the work covered by such contracts
or against any applicant for such employment because of sex, race,
religion, color, age, national origin, or physical handicap, and
that such provisions shall include, but not be limited to:
employment, upgrading, promotion or transfer, recruitment, or
recruitment advertising, layoff or termination, rates of pay
or other forms of compensation, and selection for training
including apprenticeship.
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S1F1E OF CAIIIOPNiw
STD. 113
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2. All contracts prior to award.
3. All construction change orders, and
4. Acceptance of the PROJECT by the APPLICANT.
C. Plans and specifications for the construction of the PROJECT shall:
1. Be prepared by persons licensed by the State of California to
undertake the type of design required by the PROJECT (engineer's/
architect's certificate number to appear on construction contract
design documents),
2. provide for all PROJECT facilities set forth in EXHIBIT B, and
3. provide for shoreside facilities for removing waste from vessel
holding tanks in accordance with Section 654.1 of the Harbors
and Navigation Code and Section 5200 .of the California Adminis-
trative Code, Title 14.
D. All contracts for construction of the PROJECT shall:
1. Be awarded in accordance with all applicable laws and regulations.
2. Contain the following clause: "Representatives of the Department
of Boating and Waterways shall be allowed access to all parts
of the construction work."
3. Contain a clause that there shall be no discrimination against
any employee who is employed in the work covered by such contracts
or against any applicant for such employment because of sex, race,
religion, color, age, national origin, or physical handicap, and
that such provisions shall include, but not be limited to:
employment, upgrading, promotion or transfer, recruitment, or
recruitment advertising, layoff or termination, rates of pay
or other forms of compensation, and selection for training
including apprenticeship.
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4. Contain a clause. that the contractor shall comply with all air
pollution and environmental control rules, regulations, ordinances
and .statutes which apply to the PROJECT and any work performed
pursuant to the contract.
E. Prior to the commencement of the construction of the PROJECT, the
APPLICANT shall cause the contractor and a corporate surety acceptable
to the DEPARTMENT to furnish in favor of the APPLICANT and the I
DEPARTMENT., as their interests may appear, bonds in the minimum
amounts indicated below:
1. Faithful performance - ONE HUNDRED PERCENT (100 %) of the total
contract bid price.
2. Labor and materials - ONE HUNDRED PERCENT (1000) of the total
contract bid price.
F. The APPLICANT's personnel and construction of the PROJECT shall be
under the supervision of qualified inspectors. Inspection reports
and related inspection data shall at all reasonable times be access-
ible to the DEPARTMENT personnel, and on request copies of such
reports and data shall be provided to the DEPARTMENT by the
APPLICANT.
ARTICLE V -.LAND CONTROL
A. The APPLICANT shall retain ownership of all land within the PROJECT
AREA and shall not sell, exchange, transfer, mortgage, or hypothecate
in any manner all or any portion of the real property within the
PROJECT AREA, or required in connection therewith, without advance
written approval of the DEPARTMENT.
B. The APPLICANT warrants that there shall be no encumbrance, lien,
easement, license, title, cloud or other interest which may interfere
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with the PROJECT or use thereof by the public. Certification by
the DEPARTMENT that the APPLICANT has satisfied the conditions
precedent to.disbursement of LOAN funds shall not affect this
warranty.
ARTICLE VI - OPERATIOIN OF PROJUT
A. The APPLICANT shall operate the PROJECT as or in conjunction with
a small craft harbor.
B. The APPLICANT shall:
1. Continuously operate in an efficient and economical manner all
PROJECT facilities acquired, constructed, improved, maintained,
and completed in full or in part, as a result of the LOAN.
2. Make all repairs, renewals and replacements necessary to keep
the PROJECT in good repair at all times.
3. Operate, maintain and control the PROJECT with its own employees;
provided, however, that APPLICANT may lease portions of the
PROJECT AREA, or let concessions for the operation of the
PROJECT or parts thereof, provided such leases and/or concessions
are made in accordance with Harbors and Navigation Code Sections
72 and /or 72.2; and provided, further, that no lease or con-
cession agreement shall be made without prior written approval
of the DEPARTMENT.
4. Make the PROJECT facilities available to all on equal and
reasonable terms.
5. Make all books, papers, records and accounts relative to the
PROJECT open and available for inspection and audit by the
DEPARTMENT or any authorized representative of the DEPARTMENT
at any and all reasonable times.
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with the PROJECT or use thereof by the public. Certification by
the DEPARTMENT that the APPLICANT has satisfied the conditions
precedent to.disbursement of LOAN funds shall not affect this
warranty.
ARTICLE VI - OPERATIOIN OF PROJUT
A. The APPLICANT shall operate the PROJECT as or in conjunction with
a small craft harbor.
B. The APPLICANT shall:
1. Continuously operate in an efficient and economical manner all
PROJECT facilities acquired, constructed, improved, maintained,
and completed in full or in part, as a result of the LOAN.
2. Make all repairs, renewals and replacements necessary to keep
the PROJECT in good repair at all times.
3. Operate, maintain and control the PROJECT with its own employees;
provided, however, that APPLICANT may lease portions of the
PROJECT AREA, or let concessions for the operation of the
PROJECT or parts thereof, provided such leases and/or concessions
are made in accordance with Harbors and Navigation Code Sections
72 and /or 72.2; and provided, further, that no lease or con-
cession agreement shall be made without prior written approval
of the DEPARTMENT.
4. Make the PROJECT facilities available to all on equal and
reasonable terms.
5. Make all books, papers, records and accounts relative to the
PROJECT open and available for inspection and audit by the
DEPARTMENT or any authorized representative of the DEPARTMENT
at any and all reasonable times.
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6. Periodically fix, prescribe, and collect fees, rentals, or
other charges for services and use of facilities within the
PROJECT AREA sufficient to produce gross income adequate for
payment of the following in the order set forth.
a. All installments of principal and.interest on money owed
to the DEPARTMENT as they come due.
b. All expenses of operation, maintenance, and repair of said
facilities.
ARTICLE VII - FUND BALANCE
A. The APPLICANT shall retain and invest the FUND BALANCE in reasonably
liquid assets.
B. Until the LOAN is paid in full, the APPLICANT shall make no
expenditure of the FUND BALANCE other than for the advance repayment
of the LOAN or the following: the APPLICANT may make FUND BALANCE
expenditures for such purposes as enumerated by Section 71.9 of the
Harbors and Navigation Code if before such an expenditure the
APPLICANT obtains the written approval of the DEPARTMENT and if
the FUND BALANCE remaining after the expenditure will equal one
and one -half (1.5) times the amount of the APPLICANT'sannual LOAN
payments to the DEPARTMENT.
C. The APPLICANT shall record the FUND BALANCE in a separate account
designated the "Cal Boating Iaan Repayment Account "; such account
shall reflect all receipts by the APPLICANT of revenues originating
within the PROJECT AREA.
ARTICLE VIII - LOAN REPAYMENT
A. Payments of principal and interest on the LOAN shall:
1. be made in equal annual installments as determined by the
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DEPARTMENT, and
2. be due and payable on the first day of Ai:gust of each year.
B. The DEPARTMENT may make adjustments in the schedule of annual IRAN
payments to reflect unscheduled payments of principal or interest
that may be made.
C. APPLICANT at its option may at any time make advance payment of all
or part of the principal on the LOAN remaining unpaid..
ARTICLE IX - LIABILITY AND FIRE BSURA"JCE
A. The APPLICANT agrees to insure the PROJECT through any of the
following alternatives:
ALTEISIATIVE I
The APPLICANT shall maintain in full.�force and effect during the
term of this CONTRACT the following insurance in the minimum amounts
specified:
Bodily Injury or Death .......... $300,000 each person
..........$1,000,000 each occurrence.
Property and Product Damage ..... $500,000 each occurrence
....$1,000,000 aggregate
Fire Insurance ..................900 of the full insurable value of
all insurable components of PROJECT
ALTERIATIVE II
1. The APPLICANT agrees that all contracts between it and the
designer (or designers) responsible for design and preparation
of plans and specifications of the PROJECT shall contain a
clause requiring said designer(s) to obtain Architect's
Professional Liability (errors and omissions) Insurance in
the amount of $250,000.
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2. The APPLICANT agrees that all contracts between it and the
contractor (or contractors) responsible for construction of
the PROJECT shall contain a clause which requires the con-
tractors) to obtain insurance in the minimum amounts specified
in Alternative I above.
3. The APPLICANT prior to acceptance and operation of the PROJECT
shall procure and maintain in full force and effect during
remainder of the term of this CONTRACT insurance in the amounts
I pecified in Alternative I.
ALTERNATIVE III
The insurance requirements specified in the preceding
Alternative I may be satisfied to the extent that the APPLICANT
can provide comparable protection for the APPLICANT and the
DEPARTMENT by virtue of the APPLICANT's participation in any "risk
management" plan, self insurance program, insurance pooling
arrangement, or any combination of these, provided that the
protection plan employed has been reviewed and approved by the
DEPARTMENT.
S. Copies of any policy or policies, including any new or renewal
policy, shall be in a form satisfactory to the DEPARTMENT. Copies
of such policy or policies shall be submitted to the DEPARTMENT at
least TWENTY (20) days prior to the effective date or dates thereof.
C. Such policy or policies shall contain the following endorsement:
The State of California, its officers, employees and agents are
hereby declared to be additional insureds under the terms of this
policy, as to activities of both APPLICANT and the DEPARTMENT in
respect to PROJECT, and this policy shall not be cancelled without
THIRTY (30) days prior written notice to the DEPARTMENT.
D. Loss under any fire insurance policy shall be payable to the
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DEPARTMENT for deposit in an appropriate trust fund with the State
of California. If the DEPARTMENT deems it in the interest of the
State of California, the proceeds may be paid to the APPLICANT
upon the APPLICANT's application for the reconstruction of the
destroyed facilities.
E. The DEPARTMENT shall not be held liable for the payment of any
premiums or assessments on such insurance policy or policies.
ARTICLE X - INSTA,LLATI01 OF OTHER FACILITIES
A. The APPLICANT may at its own expense place or cause to be placed
within the PROJECT AREA any structure or structures, alterations,
and improvements in addition to those set forth and described
herein, provided that such facilities: ;
1: be, constructed, maintained and operated for the use, enjoyment,
protection and service of the public;
2. do not directly or indirectly reduce the service capabilities
for the boating public called for in EXHIBIT B including the
sanitary and parking facilities; and
3. have the prior written.approval of the DEPARTMENT.
B. The. DEPARTMENT shall not be obligated to make or cause to be made
any alterations, improvements, or repaiils to any facilities within
the PROJECT AREA in addition to the original construction of the
PROJECT as provided for herein.
ARTICLE XI - SIGN REFERRING TO ) EPARTMENT FI°4ANCI`JG
The APPLICANT shall cause a permanent sign to be installed within the PROJECT
AREA which shall include a statement that the PROJECT was financed by the
DEPARTMENT. The sign may contain additional statements which recognize the
participation of other government agencies in the PROTECT. The sign shall
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ST 8 a CALIFORNIA
STU. 113 1REV. 8 :21
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be installed before the PROJECT is made available to the PUBLIC. The location
and makeup of the sign, including the dimensions, materials and lettering;
shall be as approved by the DEPARTMENT.
ARTICLE XII - DIRECTIONAL SIGNS
The APPLICANT shall at the direction of the DEPARTMENT cause permanent
directional signs to be installed so as to provide adequate directions to
the public for reaching the PROJECT AREA. The signs shall be installed on
major roads in the area and in as close proximity as possible to freeway exits.
The locations and the makeup of the :signs, including the dimensions, materials,,
and lettering, shall be as approved by the DEPARTMENT.
ARTICLE XIII - RIGHT OF THE DEPARTMENT TO TAKE POSS_SSION OF THE
PROJECT
A. The Director of the DEPARTZIMNT may, at his or her option, take
possession of the PROJECT if after NINETY (90) days written notice
the APPLICANT remains in breach of any of the provisions of this
CONTRACT. The Director of the DEPARTMENT shall, after the exercise
of such option, construct, operate or maintain the PROJECT for the
account of the APPLICANT until the LOAN is repaid in full; the
income received from the PROJECT during such time shall be applied
to the reduction of (1) the interest, and (2) the principal of the
LOAN.
B. The APPLICANT does hereby consent to the Director of the DEPARTMENT
taking possession of the PROJECT for the purposes enumerated by
this article; and further, pursuant to the provisions of this
article, the APPLICANT grants to the Director of the DEPARTMENT
the right of ingress and egress over all property owned or controlled
by the APPLICANT that is reasonably necessary for such purposes.
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%RTICLE XIV - WAIVER OF RIGHTS
It is the intention-of the parties to this CONTRACT that from time to time
either party may waive certain rights; under the CONTRACT. Any waiver at this
time by either party hereto of its rights with respect to a default or any
other matter arising in connection with this CONTRACT shall not be deemed to
be a waiver with respect to any other default or matter.
ARTICLE XV - REMEDIES NOT EXCLUSIVE
The use by either the DEPARTMENT or the APPLICANT of any remedy specified in
this CONTRACT for the enforcement of the CONTRACT is not exclusive and shall
not deprive the party using such remedy of, or limit the application of, any
other remedy provided by law.
ARTICLE
XVI -
OPINIONS
AND
DETERMINATIONS
ARTICLE XIX
- RIGHT OF ENTRY
Where the
terms
of
this CONTRACT
provide for
action to be based upon the
opinion, judgment, approval, review, or determination of either the DEPARTMENT
or APPLICANT, such terms are not intended to be and shall never be construed
as permitting such opinion, judgment, approval, review, or determination to
be arbitrary, capricious, or unreasonable.
ARTICLE XVII - SUCCESSORS AND ASSIGNS OBLIGATED
This CONTRACT and all of its provisions shall apply to and bind the successors
and assigns of the parties hereto.
ARTICLE XVIII - ASSIGNMENT
No assignment or transfer of this CONTRACT or any part hereof, rights hereunder,
or interest herein by APPLICANT shall be valid unless and until it is approved
by the DEPARTMENT and made subject to such reasonable terms and conditions as
the DEPARTMENT
may impose.
ARTICLE XIX
- RIGHT OF ENTRY
BY
THE
DEPARTMENT
The DEPARTMENT
and its agents
may,
at
any
and all reasonable times during the
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TERM OF CONTRACT, enter the PROJECT AREA for purposes of inspecting the PROJECT.
ARTICLE XX - LiDKLILY
1. APPLICANT waives all claims and recourse against the DEPARTMENT
including the right to contribution for any loss or damage arising
from, growing out of., or any way connected. with or incident to this
CONTRACT except claims arising from the concurrent or sole negligence
of the DEPARTMENT, its officers, agents and employees.
2. The APPLICANT shall indemnify, hold harmless, and defend the
DEPARTMENT, its officers, agents and employees against any and all
claims, demands, damages, costs, expenses or liability arising out
of the acquisition, design, construction, operation, maintenance,
existence or failure of the PROJECT.
3. If the DEPARTMENT is named as a co- defendant pursuant to Government
Code Sections 895, et seq. the APPLICANT shall notify the DEPARTMENT
and represent it unless the DEPARTMENT elects to represent itself.
If the DEPARTMENT undertakes its own defense, it shall bear its own
litigation costs, expenses and attorney's fees.
ARTICLE XX.I - PRIOR TERMINATI011
The CONTRACT shall terminate on the date specified in Article IV -A if by
such date (1) the APPLICANT has not met all conditions precedent to disburse-
ment under this CONTRACT, or (2) if no disbursement by the DEPARTMENT of LOAN
funds occurs.
ARTICLE XXII - SUBJECT TO AUDIT
All contracts entered into by the APPLICANT involving an expenditure.of LOAN
funds shall contain a provision which indicates that the contracting parties
shall be subject to the examination and audit of the California Auditor General
for a period of three (3) years after final payment under the CONTRACT.
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