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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 ayo •ATTEST: �� City Clerk RSP/ Ba 1 boa 2 e, 0 lli SMALL CRAFT.` HARBOR ! 21. LOAN AND OPERATION CONTRACT I 3 This CONTRACT is entered into on November 1, 1982, between the California f 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. 11 2. 1�O�ll 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 w 22 by EXHIBIT B; such gross revenues shall constitute sole security for loan COURT PAPER sr.re or STD. 113 'AM 9.72. osP • 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 1 2' 3 4 5 • 6 7 8 9 10 11 12 13 14 15 16 17 18 19 21 22 23 24 25 26 27 COURT PAPER STAYS OF CALKOPY4 STD. 113 1PEV. 6.72. Oct • ,1 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 -2 s • 1, 2 3 4 5 6 7 8 9 10 12 14 16 17 18 21 22 23 24 =OURT PAPER .1.1e or aauR��• STD. 113 IRE so R�ITr • 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 -3- 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 6 • 1 2 3 4 5 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 6 • 7 8 9 10 11 12 �. 13 14 i 15 !i 16 17 18 19 20 21 22 23 24 25 26 27 COURT PAPER STwT. Oc Cwl1fOPN1• $T O. I,3 IPEV. � Oc. P�T21 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 5 11 2 3 4 5 6 • 7 8 9 10 11 12 13 14 15 16 17 18 • 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 -2- 19 20 21 22 23 24 25 26 27 COURT PAPER. c..uvo STD. 1113 3 fx EV $TO B-721 *.1 • 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 -2- 6 • 1 2 3 4 5 6 7 8, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 COURT PAPER STATE Di GLIIDRNI.L STD. 113 RAE B.IT GiP • 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. -3- I • 1' 2 3 4 5 6 7 8 9 10 11 • 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, -4- 12 13 14 15 16 17 i8 19 20 21 22 23 24 25 26 27 COURT PAPER 1 Sm 1 1 3 I REV. 8-71. O5� • 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, -4- • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 • 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. -5- 22 23 24 25 26 27 COURT PAPER S1F1E OF CAIIIOPNiw STD. 113 OLP • 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. -5- . 1 2 3' 4 5 6 • 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 COURT PAPER ST..TE Oi CXLIIOR MIA STJ 113 IREV. 8.121 OSP • 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 • 1 2 3 4 5 61 7 8 9 10 11 12 13 14 15 16 17 18 19 • 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. -7 20 21 22 23 24 25 26 27 COURT PAPE- STATE DV I FM IRE ST.. 11] BEV. 8•7 11 OSt • 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. -7 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22, 23 24 25 26 27 COURT PAPER STATE CP CF LI IO N N�� Sro n3 i"_v. a.TZ, OSP • 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 —B iz • 1 2 3 4 5 6 7 8 9 10 11' 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 COURT PAPER svT:_.s cwuvo...- STO 113 IRE'1. 6.721 OS� • 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. f i3 1� u 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 COURT PAPER 'TO 113 IREV. 8-72, OSP • 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 ..10- 2 3 4 5 6 • 7 s s 10 11 12 13 14 15 16 17' 18 19 20 21 22 23 24 25 26 27 COURT PAPER. STATE OP C�LI $TO IIJ IR EV V . 0.7 BA]1 • 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 -11- • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 COURT PAPER ST 8 a CALIFORNIA STU. 113 1REV. 8 :21 .P • 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. -12- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 COURT PAPER 61A1e OF C..'I'... 1/. Sro 113 Rev. 012. osr %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 -13- 1 • :OURT PAPER ♦iE O 1 2 3 4 5 6 7 8i 9 10 11 12 13 14 15 16, 17 1sl 19 20 21 22 23 24 25 26 27 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. -14-