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HomeMy WebLinkAbout5.905 Original Contract 5. 'IDS '. LOAN AGREEMENT by and between THE CITY OF PORT ANGELES and PORT ANGELES HARBOR-WORKS DEVELOPMENT AUTHORITY Dated as of ~ Qt-. 5, 2008 I . ' .... TABLE OF CONTENTS AR TI CLE 1. Recita Is ............ ....... ........................ ....... ..... .............. .......... ...... ....... ....... ..... ........................ .............. .... 1 ARTICLE 2. Loans to the Authority; Repayment Terms ....................................................................................... 1 Section il Loans to the Authority; Purpose ... .. .. ............................ . .... . ... ..... ............................... 1 Section 2 2 Repayment Terms.... . . . ... . ......................... .... ...... . ..... . .... .. ................................. ..... 1 Section U Secunty ..... ... .... . . . . ... ....................... ... ..... ........ .... .... .... ... ...... ................................2 ARTICLE 3. Rights of City; Covenants of the Authority ....................................................................................... 2 SectlOn.ll Rights of the City. . . . ... ... ............................ ......... . . . . .... ......................2 Section J..1. Covenants and of the Authority .. ....... .................................................... ...................... . 2 A R TI CLE 4. Remedies Upon Defa u It ............................................. ..................... ............. ........................... ............. 3 SectIOn ti Section 4.2 Section 4.3 Section 4.4 Section 4.5 Remedies of City on Default ... .......................................................... ....... . . . ... . . . .. .. .... 3 No Remedy Exclusive ............ ........ ... ........ ........................................................................ 3 No Implied Waiver...................... .... ., .. ......................................................... ................. . .. . .3 Agreement to Pay Attorneys' Fees and Expenses ............................................................................3 Dispute Resolution ........... ... . . . . .. .. . .... . ............................................. ................. ...... .... .... . .3 ARTICLE 5. H old Harm less. ........................... .............................................. ..... .......... ..... ....... .......... .... ..... ..... ......... 3 Section D SectIOn 5.2 Section U Section 5.4 Section 5.5 Section 5.6 Section 5.7 Section 5.8 Section i.2 Governing Law; Venue ................. .. ...... ..... .................................................... ....... . .. ..... .4 Notices........................... ..... .............................................................................. ....... .... ...... ....4 Binding Effect ...... . ....................................................................... ............ . ...... .... ..... ................5 SeverabIlIty............................... .. ..... . ............................................................. ........ ... ........... 5 Amendments. ... ........................................ . ..... . .. . . ... .. ......... . ... ... . ....5 Waiver of Breach....................... ............. .... ...................... .... .... .. .. ......... .. ... ... 5 No Rights Created in Third PartIes. .. ...... . ... ............ ........ ... ........ ...... .... . .. .. 5 Time of Essence ................................ .............. ..... . .. . . .. .. .. .............. ........... . .. ...5 Effebive Date of and Termination of Agreement ...... ....... ... ..... ... ... .. . ... ...... ..........5 ) I '.- LOAN AGREEMENT This LOAN AGREEMENT (this "Agreement") is dated as of .5,2008, by and between THE CITY OF PORT ANGELES (the "City"), a code city organized under the laws of the State of Washington, and the PORT ANGELES HARBOR-WORKS DEVELOPMENT AUTHORITY (the "Authority"), a public corporation established by the City of Port Angeles and duly organized and existing under and by virtue of the laws of the state of Washington (together, the "Parties"). The City and the Authority enter into this pursuant to Resolution No. _ of the Authority adopted on ,2008 and Resolution NoJi:80fthe City adopted on ~ ~,2008. ~ The Parties agree as follows: ARTICLE 1. Recitals The following facts and circumstances form the background of this Agreement: 1. The Authority is a duly organized and legally existing public corporation of the State of Washington. 2. Pursuant to RCW 35.21.745(2), the City may transfer to the Authority and the Authority may borrow from the City funds necessary to ensure that the purposes for which the Authority was created are reasonably accomplished. ARTICLE 2. Loans to the Authority; Repayment Terms Section 2.1 Loans to the Authority; Purpose. The City agrees to lend to the authority and the Authority agrees to borrow money in the amount of One Hundred Fifty Thousand dollars ($150,000.00). Section 2.2 Repayment Terms. (1) Repayment Terms. The principal amount of the loan to the Authority hereunder, together with interest thereon calculated as set forth in subsection (2) of this section, shall be repaid by the Authority from available revenue. Revenue shall be deemed to be available when the Authority (1) receives grants and (2) obtains proceeds from the sale, lease, rental, or other transfer of property. Such payments will be applied first to costs owed to the City, second, to interest owed to the City on account of outstanding loans made under this Agreement and third to the principal of all outstanding loans made under this Agreement in the order in which such loans were made. (2) Interest Rate. The loan made under the terms of this Agreement will bear interest from the date funds are advanced until the date such loan is repaid. Interest on the unpaid -1- balance will be calculated on the basis of the actual number of days in the year, for the actual number of days elapsed. The rate of interest shall be the rate equal to the rate of return on the State of Washington Local Government Investment Pool as determined as of the last day of the month prior to the date the funds are advanced. Absent manifest error, all calculations of the City shall be binding upon the Authority. (3) Maturity. Unless paid earlier pursuant to subsection (1) of this section, all loans hereunder shall be due and payable 30 days after request for payment is made by the City to the Authority. Section 2.3 Obligation Unconditional. The Authority's obligation to make the loan repayments to the City and to perform and observe the other obligations on its part contained herein shall be absolute and unconditional, and shall not be subject to diminution by setoff, counterclaim, abatement or otherwise. The Authority's obligations under this Agreement shall continue in effect and shall survive the satisfaction of any other Authority obligations to the City until such time as principal and interest due to the City pursuant to any loan or loans made hereunder have been repaid, together with any costs owed to the City pursuant to Section 4.4 and Article 5. ARTICLE 3. Rights of City; Covenants of the Authority Section li Rights of the City. If the City loan to the Authority under this Agreement has not been repaid in full (whether or not the loan is in default), the City may take anyone or more of the following steps in addition to any other remedy or action that the City is entitled to take under state law or city ordinance: (1) The City may have access to and inspect, examine and make copies of the books and records and any and all accounts and data ofthe Authority. Section 3.2 Covenants and of the Authority. (1) Records. The Authority agrees that it shall cause proper books and records to be maintained with respect to all of its activities and transactions. (2) Reporting. The Authority quarterly shall provide the City with a report summarizing its activities and a statement of its actual financial activity and financial expectations for the following four quarters. (3) No Liens. Neither the City nor the Authority shall grant or permit any lien (other than consensual liens such as contractors' liens) against the Authority or its interest therein which, if unpaid, might become a lien or charge upon the Authority's Property without the written consent of the City. (4) Additional Debt. So long as the Authority's obligation to repay the City remains outstanding under this Agreement, the Authority shall not incur any additional indebtedness that would have priority over the obligation to the City; or that would impair the rights of the City; or would diminish the ability of the Authority to repay the City. -2- \ ARTICLE 4. Remedies Upon Default Section 11. Remedies of City on Default. Upon the occurrence of a default by the Authority in its obligation hereunder, the City may proceed to protect and enforce its rights in equity or at law, either in mandamus or for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, as the City may deem most effectual to protect and enforce any of its rights or interests hereunder. Section 4.2 No Remedy Exclusive. No remedy conferred upon or reserved to either party by this Agreement is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute, and either party hereto shall be free to pursue, at the same time, each and every remedy, at law or in equity, which it may have under this Agreement, or otherwise. Section 4.3 No Implied Waiver. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. For the exercise of any remedy, it shall not be necessary to give any notice, other than such notice as may be expressly required herein. Section 4.4 Agreement to Pay Attorneys' Fees and Expenses. If a default arises under any of the provisions of this Agreement and either party hereto should employ attorneys or incur other expenses for the collection of amounts due under this Agreement or the enforcement of performance or observance of any obligation or agreement on the part of the other party contained in this Agreement, on demand therefor, the nonprevailing party shall pay or reimburse the prevailing party for the reasonable fees of such attorneys and such other expenses so incurred. Section 4.5 Dispute Resolution. The parties may mediate any dispute over the interpretation of any terms or conditions under this Agreement. Mediation will be made available upon request of either party. The costs associated with any such mediation shall be shared equally by the parties. ARTICLE 5. Hold Harmless As between the City and the Authority, the Authority assumes the risk of, shall be liable for, and shall pay all damage, loss, cost and expense of any party, including its employees, arising out of any act, error or omission of the Authority or the Authority's employees, agents, or subcontractors, whether by negligence or otherwise. The Authority shall hold harmless the City and its officers, elected officials, agents, and employees against all claims, losses, suits, actions, costs, counsel fees, litigation costs, expenses, damages, judgments or decrees by reason of damage to any property or business -3- and/or any death, injury or disability to or of any person or party, including any employee, arising out of or suffered, directly or indirectly, by reason of or in connection with any act, error or omission of the Authority or the Authority's employees, agents, or subcontractors, whether by negligence or otherwise. The Authority's obligation shall include, but not be limited to, investigating, adjusting and defending all claims against the City alleging loss from action, error or omission or breach of any common law, statutory or other delegated duty by the Authority, the Authority's employees, agents or subcontractors. ARTICLE 6. Insurance The Borrower shall carry, throughout the life of this Agreement, General Liability Insurance, and such other coverage as may be appropriate. The limits of the Borrowers General Liability Insurance shall be not less than $1,000,000 per occurrence and $1,000,000 aggregate for the duration of this agreement. The City of Port Angeles is to be named as an additional insured on all applicable insurance policies. ARTICLE 7. Other provisions Section L.l Governing Law; Venue. This Agreement is governed by and shall be construed in accordance with the substantive laws of the State of Washington and shall be liberally construed so as to carry out the purposes hereof. Except as otherwise required by applicable law, any action under this Agreement shall be brought in the Superior Court of the State of Washington in and for Clallam County. Section 7.2 Notices. Except as otherwise provided herein, all notices, consents or other communications required hereunder shall be in writing and shall be sufficiently given if addressed and hand delivered or mailed by certified or registered mail, postage prepaid and return receipt requested, as follows: To the City: City of Port Angeles 321 E. Fifth St./ P.O. Box 1150 Port Angeles, W A 98362 Attention: City Manager Fax: (360) 417-4509 Telephone: (360) 417-4500 To the Authority: Port Angeles Harbor-Works Development Authority Port Angeles, W A 98_ Attention: Fax: Telephone: -4- ,. The City or the Authority may designate any further or different addresses to which subsequent notices, certificates, requests or other communications shall be sent by giving notice of such change to the other party. Notices shall be deemed served upon deposit of such notices in the United States mail in the manner provided above. Section 7.3 Binding Effect This Agreement shall inure to the benefit of the City, the Authority and shall be binding upon the City and the Authority and their successors. This Agreement may not be assigned. Section 7.4 Severability.In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 7.5 Amendments.This Agreement may be amended, changed, modified or altered only by an instrument in writing duly executed by the City and the Authority (or the successors in title of each). Section 7.6 Waiver of Breach.No waiver of any breach of any covenant or agreement contained herein shall operate as a waiver of any subsequent breach of the same covenant or agreement or as a waiver of any breach of any other covenant or agreement, and in case of a breach by either party of any covenant, agreement or undertaking, the nondefaulting party may nevertheless accept from the other any payment or payments or performance hereunder without in any way waiving its right to exercise any of its rights and remedies provided for herein or otherwise with respect to any such default or defaults that were in existence at the time such payment or payments or performance were accepted by it. Section 7.7 No Rights Created in Third Parties The terms of this Agreement are not intended to establish or to create any rights in any persons or entities other than the City, the Authority, the respective successors and assigns of each. Section 7.8 Time of Essence.Time and all terms and conditions shall be of the essence of this Agreement. Section 7.9. Effective Date of and Termination of Agreement. This Agreement shall take effect as of the date first written above. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LEND MONEY, EXTEND CREDIT, OR FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW. IN WITNESS WHEREOF, the City and the Authority have caused this Agreement to be executed in their respective names by their duly authorized officers, and have caused this Agreement to be dated as of the date set forth on the first page hereof. -5- /::Jb '-;; 0J/~~ Gary Braun, Mayor CITY OF PORT ANGELES, WASHINGTON Attest: AP?'o/ed as to form: ~ 1/AP 1: '- --- William E. Bloor, City Attorney STATE OF WASHINGTON ss. COUNTY OF CLALLAM I certify that I know or have satisfactory evidence that Gary Braun and Becky 1. Upton are the persons who appeared before me, and that said persons signed this instrument, on oath stated that said persons were authorized to execute the instrument and acknowledged it as the Mayor and Clerk, respectively, of the CITY OF PORT ANGELES, a municipal corporation of the State of Washington, to be the free and voluntary act of such municipal corporation for the uses and purposes mentioned in the i strument. Dated thi~day of f ,vsi;, 2008. Aa)~ _l{()~I2~ ~/Ja_ S. ~~u-d5 \\\\\\111111I11111/ ~ \\\ Jl- S R o. :tll//,z ;:::j /IV'-' ......... 6>~,^ ~ ~ ~ .... .... ~T.. ~ .::::- Q.. -.\. 0 TAb .. a ~ .:::- :~ "J..\cP:: ~ ~ ~EXP. OI.24-201,} ~ ::::: 7' ,,~~. ,,_ I ~ S -;::, .,.4.. vlL\v ..1....0 ;-:: ~ ~... ... I"A. ~ ~ 0 ............ ~ 'V ~ ~ '/:'WAS~\ #' ~/I. ~\~ 'Illll/llIIm\\\\'\ (LegIbly Pnnt or Stamp Name of Notary) d for the State of Washington, resldmg at -6- ,- ss. STATE OF WASHINGTON COUNTY OF CLALLAM at I know or have satisfactory evidence that Orville Campbell and c<1i.rf' n the persons who appeared before me, and said persons acknowledged that sai persons signed this instrument, on oath stated that said persons were authorized to execute the instrument and acknowledged it as the President and Secretary, respectively, of Board of Directors of the PORT ANGELES HARBOR-WORKS DEVELOPMENT AUTHORITY, a municipal corporation of the State of Washington, to be the free and voluntary act of such municipal corporation for ~s and pnrposes mentioned in the instrument. Dated this S-tj.. day of .M, 2008. G:\LEGAL\Rayonier\Loan Agrmt City to PDA 08 18 08.DOC -7- 5. Cfo5 ... . REVISED LOAN AGREEMENT by and between THE CITY OF PORT ANGELES and PORT ANGELES HARBOR-WORKS DEVELOPMENT AUTHORITY Dated as of ~o p. ~, 2008 .. . TABLE OF CONTENTS ARTICLE 1. Recitals ...................... .................................................... ...... ........................ ... ........... .... .............. .......... 1 ARTICLE 2. Loans to the Authority; Repayment Terms....................................................................................... 1 Section U Loans to the Authority; Purpose....... .... . ...... .... .. .. . . .................................................................. 1 Section 2.2 Repayment Terms.................. ........... .......... .. . ... . ..... . . . .. . .... . ................................................ 1 SectIOn 2.3 Security... . ...... . . . . ..... ... . . .......... .. ...... . .... ................. ........................................................2 ARTICLE 3. Rights of City; Covenants of the Authority .......................................................................................2 SectIon 11 Rights of the City.... ... ......... .... ..... .. . ...... ............................................... . ... . ... . . .. .... ...2 Section 3.2 Covenants and of the Authority... .... .......... ......... ... ......... ... ............................................... .. 2 AR TI CLE 4. Remedies V po n Defa ult .......................................................................... .................. ........................... 3 Section 1,1 SectIOn 4 2 SectIOn !l Section 4.4 Section 4.5 Remedies of City on Default .................................................................. . .. . . . ..... ............ ...........3 No Remedy Exclusive.. .......... . ...... . .... . ............ .................................................... .... . .. . .. ...3 No ImplIed Waiver ............................ ...... ..... ....... ...... . . . . ....................................................... 3 Agreement to Pay Attorneys' Fees and Expenses ............................ .. ...... .....................................3 Dispute Resolution ..................................... ...... ... ..... . ........ ......... .................................... .. .. 3 ARTICLE 5. Hold Ha rm less ........................................................................... .......... ............ ................................ ..... 3 Section D Section 5.2 Section 5.3 Section 5.4 Section 2.J. Section ti Section 5.7 Section 5.8 Section 5.9 Governing Law; Venue ............ . . .. . . .. ........ . . . .................................................... . ..... ....... 4 Notices....................................................................................................................... ....................... 4 Binding Effect ............................................................... .... .... ............................................... ... . .. 5 Severability.............................................................. ..... . . ...... ................................... . .. ... ... .5 Amendments... . ...... . . ....... .. ... ............. . .... . ... ..................................... .............. ..... .. 5 Waiver of Breach........................... ..................................................... ................................... ..... . 5 No Rights Created in Third Parties......................................... .... ............................. . . .. ... ...... 5 Time of Essence ............... ...... .... .... .. ... ... .................................. .. ................................ .. .........6 Effective Date of and Termination of Agreement ..................... .............................. ....................... 6 : LOAN AGREEMENT This LOAN AGREEMENT (this "Agreement") is dated as of ~. !il., 2008, by and between THE CITY OF PORT ANGELES (the "City"), a code city organized under the laws of the State of Washington, and the PORT ANGELES HARBOR-WORKS DEVELOPMENT AUTHORITY (the "Authority"), a public corporation established by the City of Port Angeles and duly organized and existing under and by virtue of the laws of the state of Washington (together, the "Parties"). The City and the Authority enter into this pursuant to Resolution No. _ of the Authority adopted on _, 2008 and Resolution No~f the City adopted on ~1f{. ~, 2008 . The Parties agree as follows: ARTICLE 1. Recitals The following facts and circumstances form the background of this Agreement: 1. The Authority is a duly organized and legally existing public corporation of the State of Washington. 2. Pursuant to RCW 35.21.745(2), the City may transfer to the Authority and the Authority may borrow from the City funds necessary to ensure that the purposes for which the Authority was created are reasonably accomplished. ARTICLE 2. Loans to the Authority; Repayment Terms Section il Loans to the Authority; Purpose. The City agrees to lend to the authority and the Authority agrees to borrow money in the amount of One Hundred Fifty Thousand dollars ($150,000.00). Section 2.2 Repayment Terms (1) Repayment Terms. This indebtedness is issued by the Authority on a parity with any similar indebtedness to the Port of Port Angeles, and the proceeds of any grants which may lawfully be utilized to repay this indebtedness, together with all proceeds from the sale, lease, rental or other transfer of property of the Authority, are hereby irrevocably pledged to the repayment hereof. (2) Interest Rate. The loan made under the terms of this Agreement will bear interest from the date funds are advanced until the date such loan is repaid. Interest on the unpaid balance will be calculated on the basis of the actual number of days in the year, for the actual number of days elapsed. The rate of interest shall be the rate equal to the rate of return on the State of Washington Local Government Investment Pool as determined as of the last day of the -1- . , " month prior to the date the funds are advanced. Absent manifest error, all calculations of the City shall be binding upon the Authority. (3) Maturity. Unless paid earlier pursuant to subsection (1) of this section, all loans hereunder shall be due and payable 30 days after request for payment is made by the City to the Authority. Section 2.3 Obligation Unconditional. The Authority's obligation to make the loan repayments to the City and to perform and observe the other obligations on its part contained herein shall be absolute and unconditional, and shall not be subject to diminution by setoff, counterclaim, abatement or otherwise. The Authority's obligations under this Agreement shall continue in effect and shall survive the satisfaction of any other Authority obligations to the City until such time as principal and interest due to the City pursuant to any loan or loans made hereunder have been repaid, together with any costs owed to the City pursuant to Section 4.4 and Article 5. ARTICLE 3. Rights of City; Covenants of the Authority Section li Rights of the City. If the City loan to the Authority under this Agreement has not been repaid in full (whether or not the loan is in default), the City may take anyone or more of the following steps in addition to any other remedy or action that the City is entitled to take under state law or city ordinance: (1) The City may have access to and inspect, examine and make copies of the books and records and any and all accounts and data of the Authority. Section 3.2 Covenants and of the Authority (1) Records. The Authority agrees that it shall cause proper books and records to be maintained with respect to all of its activities and transactions. (2) Reporting. The Authority quarterly shall provide the City with a report summarizing its activities and a statement of its actual financial activity and financial expectations for the following four quarters. (3) No Liens. Neither the City nor the Authority shall grant or permit any lien (other than consensual liens such as contractors' liens) against the Authority or its interest therein which, if unpaid, might become a lien or charge upon the Authority's Property without the written consent of the City. (4) Additional Debt. So long as the Authority's obligation to repay the City or Port remains outstanding under this Agreement, the Authority shall not incur any additional indebtedness that would have priority over the obligation to the City or the Port; or that would impair the rights of the City or the Port; or would diminish the ability of the Authority to repay the City or the Port. -2- . . " ARTICLE 4. Remedies Upon Default Section ti Remedies of City on Default. Upon the occurrence of a default by the Authority in its obligation hereunder, the City may proceed to protect and enforce its rights in equity or at law, either in mandamus or for the specific performance of any covenant or agreement contained herein, or for the enforcement of any other appropriate legal or equitable remedy, as the City may deem most effectual to protect and enforce any of its rights or interests hereunder. Section 4.2 No Remedy Exclusive. No remedy conferred upon or reserved to either party by this Agreement is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute, and either party hereto shall be free to pursue, at the same time, each and every remedy, at law or in equity, which it may have under this Agreement, or otherwise. Section 4.3 No Implied Waiver. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. For the exercise of any remedy, it shall not be necessary to give any notice, other than such notice as may be expressly required herein. Section 4.4 Agreement to Pay Attorneys' Fees and Expenses. If a default arises under any of the provisions of this Agreement and either party hereto should employ attorneys or incur other expenses for the collection of amounts due under this Agreement or the enforcement of performance or observance of any obligation or agreement on the part of the other party contained in this Agreement, on demand therefor, the nonprevailing party shall pay or reimburse the prevailing party for the reasonable fees of such attorneys and such other expenses so incurred. Section 4.5 Dispute Resolution. The parties may mediate any dispute over the interpretation of any terms or conditions under this Agreement. Mediation will be made available upon request of either party. The costs associated with any such mediation shall be shared equally by the parties. ARTICLE 5. Hold Harmless As between the City and the Authority, the Authority assumes the risk of, shall be liable for, and shall pay all damage, loss, cost and expense of any party, including its employees, arising out of any act, error or omission of the Authority or the Authority's employees, agents, or subcontractors, whether by negligence or otherwise. -3- .. , The Authority shall hold harmless the City and its officers, elected officials, agents, and employees against all claims, losses, suits, actions, costs, counsel fees, litigation costs, expenses, damages, judgments or decrees by reason of damage to any property or business and/or any death, injury or disability to or of any person or party, including any employee, arising out of or suffered, directly or indirectly, by reason of or in connection with any act, error or omission of the Authority or the Authority's employees, agents, or subcontractors, whether by negligence or otherwise. The Authority's obligation shall include, but not be limited to, investigating, adjusting and defending all claims against the City alleging loss from action, error or omission or breach of any common law, statutory or other delegated duty by the Authority, the Authority's employees, agents or subcontractors. ARTICLE 6. Insurance The Borrower shall carry, throughout the life of this Agreement, General Liability Insurance, and such other coverage as may be appropriate. The limits of the Borrowers General Liability Insurance shall be not less than $1,000,000 per occurrence and $1,000,000 aggregate for the duration of this agreement. The City of Port Angeles is to be named as an additional insured on all applicable insurance policies. ARTICLE 7. Other provisions Section L.l Governing Law; Venue. This Agreement is governed by and shall be construed in accordance with the substantive laws of the State of Washington and shall be liberally construed so as to carry out the purposes hereof. Except as otherwise required by applicable law, any action under this Agreement shall be brought in the Superior Court of the State of Washington in and for Clallam County. Section 7.2 Notices. Except as otherwise provided herein, all notices, consents or other communications required hereunder shall be in writing and shall be sufficiently given if addressed and hand delivered or mailed by certified or registered mail, postage prepaid and return receipt requested, as follows: To the City: City of Port Angeles 321 E. Fifth St. / P.O. Box 1150 Port Angeles, W A 98362 Attention: City Manager Fax: (360) 417-4509 Telephone: (360) 417-4500 -4- ! Port Angeles Harbor-Works Development Authority ..pt). &.v' ~wDq Port Angeles, WA 98~ Attention:~ Fax: Telephone: BwO- ~7 - ~'7qO The City or the Authority may designate any further or different addresses to which subsequent notices, certificates, requests or other communications shall be sent by giving notice of such change to the other party. Notices shall be deemed served upon deposit of such notices in the United States mail in the manner provided above. To the Authority: Section 7.3 Binding Effect This Agreement shall inure to the benefit of the City, the Authority and shall be binding upon the City and the Authority and their successors. This Agreement may not be assigned. Section 7.4 Severability.In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 7.5 Amendments.This Agreement may be amended, changed, modified or altered only by an instrument in writing duly executed by the City and the Authority (or the successors in title of each). Section 7.6 Waiver of Breach.No waiver of any breach of any covenant or agreement contained herein shall operate as a waiver of any subsequent breach of the same covenant or agreement or as a waiver of any breach of any other covenant or agreement, and in case of a breach by either party of any covenant, agreement or undertaking, the nondefaulting party may nevertheless accept from the other any payment or payments or performance hereunder without in any way waiving its right to exercise any of its rights and remedies provided for herein or otherwise with respect to any such default or defaults that were in existence at the time such payment or payments or performance were accepted by it. Section 7.7 No Rights Created in Third Parties The terms of this Agreement are not intended to establish or to create any rights in any persons or entities other than the City, the Authority, the respective successors and assigns of each, except that the Port shall have the right to enforce its right to have any indebtedness owed to it repaid in parity with the debt incurred hereunder. -5- r . . . Section 7.8 Time of Essence.Time and all terms and conditions shall be of the essence of this Agreement. Section 7.9. Effective Date of and Termination of Agreement. This Agreement shall take effect as of the date first written above. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LEND MONEY, EXTEND CREDIT, OR FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW. IN WITNESS WHEREOF, the City and the Authority have caused this Agreement to be executed in their respective names by their duly authorized officers, and have caused this Agreement to be dated as of the date set forth on the first page hereof. CITY OF PORT ANGELES, WASHINGTON ~L.f)~ Jerry Osterman, City Manager Orville Campbell, President, Directors Attest: {://'b~ c1er:Pn& Appr~ed as to fo.rm: /. /7 4J~{ - 'i -:- William E. Bloor/City Attorney STATE OF WASHINGTON ss. COUNTY OF CLALLAM I certify that I know or have satisfactory evidence that Jerry Osterman and Becky J. Upton are the persons who appeared before me, and that said persons signed this instrument, on oath stated that said persons were authorized to execute the instrument and acknowledged it as the City Manager and Clerk, respectively, of the CITY OF PORT ANGELES, a municipal -6- 'J' .' . . corporation of the State of Washington, to be the free and voluntary act of such municipal corporation for the uses and purpoies ,entioned in the instrument. Dated this~day of ~~yrf=-, 2008. ~\\\\\\\""""111111. / () j) A A / I.. /'J 0 J ~,,\ ",,, S RO 1I/~ ~ L LLL..., ~ 7)~ d \..(j./ ~ Q~"""..""'.'.~~~ % '~_ I n (sl~url of Not1 \ ~ 1.~OT~19 .... 0 ~ '- [-cliO .....~. ~e rr-.\.s :: OJ lEX J. \ (/) :: (LegIbly Pnnt or Stamp Name of Notary) S ....: 'P.0I'24-201.i g nd for the State of Washington, residing at - )II: · ~ 4". 4r - ~ ~ \ tl8LtC ... 0 ~ ~ ". '.. ...." ~ My appointment ex es cR ~ 1/ - / .:z ~ OA' .......... ~~ ~ ~1. WAS~\ \\"~ "III If 1/111" \ \ \ \\\; STATE OF WASHINGTON ss. COUNTY OF CLALLAM I certify that I know or have satisfactory evidence that Orville Campbell and :I:):;XAC\\CA..-'S \.\. (\c\ ,iC:.KS are the persons who appeared before me, and said persons acknowledged that said persons signed this instrument, on oath stated that said persons were authorized to execute the instrument and acknowledged it as the President and Secretary, respectively, of Board of Directors of the PORT ANGELES HARBOR-WORKS DEVELOPMENT AUTHORITY, a municipal corporation of the State of Washington, to be the free and voluntary act of such municipal corporation for the uses and purposes mentioned in the instrument. Dated this I~,,\\\impf m~, 2008. ,\\~ 1/1111. ~ .,#" S RO "~ ~ ',"~'...".., 9~.I\ ~ A ~ ~ Y.- ...., ~ ~ Q{+OTA~;\~ '% JI - _ .EXP l = ~ fa :. -. . .-24-2012: = _...\~ :~::: ~ ~ ,"8L'c; l E ~ ~ ~. .... I'llo. ~ ~ 0 ......... ~" ~ ~ ~ WAS~\ ~#' '111111 \\\\\" G ILEGALIRavomerlLoan AlmTlt ~{l fA mt\\SI90S DOC Seotember 23 2008 ~~~ 5;. ~~5 (LegIbly Pnnt or Stamp Name of Notary) and for the State of Washington, residing at -7- . , SECOND LOAN AGREEMENT by and between THE CITY OF PORT ANGELES and PORT ANGELES HARBOR-WORKS DEVELOPMENT AUTHORITY Is~ Dated as of September --=, 2009 5. qD5" . . TABLE OF CONTENTS SectIOn 11 SectIOn 4 2 SectIon '!.1 Sechon 4 4 SectIOn 4.5 RemedIes of City on Default No Remedy ExclusIve No Imphed Waiver Agreement to Pay Attorneys' Fees and Expenses Dispute ResolutIOn 1 1 I I 2 ... .............2 2 2 .............................3 3 3 3 3 3 ARTICLE I ReCItals ............ ARTICLE 2. Loans to the AuthOrity, Repayment Terms SectlOn;U Loans to the Authonty SectIOn 2 2 Repayment Terms Sechon U Secunty ARTICLE 3 RIghts of CIty; Covenants of the AuthOrity Section 11 RIghts of the CIty SectIOn 3 2 Covenants of the Authonty ARTICLE 4. Remedies Upon Default.......... ............ ARTICLE 5. Hold Harmless............................. ARTICLE 6. Insurauce . ............... ARTICLE 7. Other PrOVlSIOUS .. ............... SectIOn 11 Governmg Law, Venue SectIOn 7 2 Nohces SectIOn U Bmdmg Effect SectIon l..'! Severablhty SectIOn 12 Amendments SectIOn l!!. Waiver of Breach SectIOn U No RIghts Created m Third PartieS SectIOn 1J! TIme of Essence SectIOn l2. Effective Date of and TermmatlOn of Agreement 3 .. ...4 4 4 4 5 5 5 5 5 6 6 . . SECOND LOAN AGREEMENT This LOAN AGREEMENT (this "Agreement") is dated as of September _' 2009, by and between THE CITY OF PORT ANGELES (the "City"), a code city organized under the laws of the State of Washmgton, and the PORT ANGELES HARBOR-WORKS DEVELOPMENT AUTHORITY (the "Authonty"), a public corporatIOn established by the City of Port Angeles and duly organized and eXlstmg under and by virtue of the laws of the state ofWashmgton (together, the "Parties") The City and the Authonty enter mto this Second Loan Agreement authonzed by City Council on August 18,2009 The Parties agree as follows ARTICLE 1. Recitals The followmg facts and clfcumstances fonu the background of this Agreement I The Authonty IS a duly orgamzed and legally eXlstmg public corporatIOn of the State ofWashmgton 2 Pursuant to RCW 3521 745(2), the City may transfer to the Authonty and the Authonty may borrow from the City funds necessary to ensure that the purposes for which the Authonty was created are reasonably accomplished 3 The loan represented by this Second Loan Agreement IS Issued m additIOn to and on panty with that loan represented by the Revised Loan Agreement dated September 30, 2008 ARTICLE 2. Loans to the Authority; Repayment Terms SectIOn 2 I Loans to the Authontv The City agrees to lend to the authonty and the Authonty agrees to borrow money m the amount of FIve Hundred Thousand dollars ($500,000 00) Section 2 2 Repavment Tenus (I) Repayment Terms This mdebtedness IS Issued by the Authonty on a parity WIth any Similar mdebtedness to the Port of Port Angeles, and the proceeds of any grants which may lawfully be utilized to repay thiS mdebtedness, together With all proceeds from the sale, lease, rental or other transfer of property of the Authonty, are hereby mevocably pledged to the repayment hereof (2) Interest Rate The loan made under the tenus of thiS Agreement Will bear mterest from the date funds are advanced until the date such loan IS repaid. Interest on the unpaid balance Wlll be calculated on the baSIS of the actual number of days m the year, for the actual -1- number of days elapsed The rate of mterest shall be the rate equal to the rate of return on the State ofWashmgton Local Government Investment Pool as deterrmned as of the last day of the month pnor to the date the funds are advanced Absent mamfest error, all calculatIOns of the City shall be bmdmg upon the Authonty (3) Maturzty Unless paid earher pursuant to subsectIOn (I) of thiS sectIOn, all loans hereunder shall be due and payable 30 days after request for payment IS made by the City to the Authonty SectIOn 23 ObhgatlOn Unconditional The Authonty's obhgatlOn to make the loan repayments to the City and to perform and observe the other obligatIOns on ItS part contamed herem shall be absolute and unconditional, and shall not be subject to dlmmutlon by setoff, counterclaim, abatement or otherwise The Authonty's obhgatlOns under thiS Agreement shall contmue m effect and shall survive the satisfactIOn of any other Authonty obhgatlons to the City until such time as pnnclpal and mterest due to the City pursuant to any loan or loans made hereunder have been repaid, together With any costs owed to the City pursuant to Section 4 4 and Article 5 ARTICLE 3. Rights of City; Covenants of the Authority Section 11 Rights of the City If the City loan to the Authonty under thiS Agreement has not been repaid m full (whether or not the loan IS m default), the City may take anyone or more of the followmg steps m addition to any other remedy or actIOn that the City IS entitled to take under state law or city ordmance (I) The City may have access to and mspect, examme and make copies of the books and records and any and all accounts and data of the Authonty SectIOn 11 Covenants of the Authonty (I) Records The Authonty agrees that It shall cause proper books and records to be mamtamed With respect to all of ItS activities and transactions (2) Reportmg The Authonty quarterly shall proVide the City With a report summarlzmg ItS activities and a statement of ItS actual financial activity and financial expectatIOns for the followmg four quarters (3) No Liens Neither the City nor the Authonty shall grant or permit any hen (other than consensual hens such as contractors' hens) agamst the Authonty or ItS mterest therem which, If unpaid, might become a hen or charge upon the Authonty's Property Without the wntten consent of the City (4) Additional Debt So long as the Authonty's obhgatlOn to repay the City or Port remams outstandmg under thiS Agreement, the Authonty shall not mcur any additIOnal mdebtedness that would have pnonty over the obhgatlOn to the CIty or the Port, or that would Impair the nghts of the City or the Port; or would dlmmlsh the ablhty of the Authonty to repay the City or the Port -2- ARTICLE 4. Remedies Upon Default SectIOn 4 I Remedies of CltV on Default Upon the occurrence of a default by the Authonty m Its obligatIOn hereunder, the City may proceed to protect and enforce Its nghts m eqUity or at law, either m mandamus or for the specific performance of any covenant or agreement contamed herem, or for the enforcement of any other appropnate legal or eqUitable remedy, as the City may deem most effectual to protect and enforce any of Its nghts or mterests hereunder SectIOn 4 2 No Remedv Exclusive No remedy conferred upon or reserved to either party by this Agreement IS mtended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be m addition to every other remedy given under this Agreement or now or hereafter eXlstmg at law or m eqUity or by statute, and either party hereto shall be free to pursue, at the same time, each and every remedy, at law or m eqUity, whICh It may have under this Agreement, or otherwise SectIOn 43 No Implied Waiver No delay or omiSSIOn to exercise any nght or power accrumg upon any default shall Impair any such nght or power or shall be construed to be a waiver thereof, but any such nght and power may be exercised from time to time and as often as may be deemed expedient For the exercise of any remedy, It shall not be necessary to give any notice, other than such notice as may be expressly reqUired herem SectIOn 4 4 Agreement to Pav Attornevs' Fees and Expenses If a default arises under any of the provlSlons of this Agreement and either party hereto should employ attorneys or mcur other expenses for the collectIOn of amounts due under this Agreement or the enforcement of performance or observance of any obligatIOn or agreement on the part of the other party contamed m this Agreement, on demand therefor, the nonprevalling party shall pay or reimburse the prevailmg party for the reasonable fees of such attorneys and such other expenses so mcurred SectIOn 4 5 Dispute Resolution The parties may mediate any dispute over the mterpretatlOn of any terms or conditions under this Agreement MediatIOn will be made aVailable upon request of either party The costs associated with any such mediatIOn shall be shared equally by the parties ARTICLE 5. Hold Harmless As between the City and the Authonty, the Authonty aSSUllles the nsk of, shall be liable for, and shall pay all damage, loss, cost and expense of any party, mcludmg ItS employees, arlsmg out of any act, error or omission of the Authonty or the Authonty's employees, agents, or subcontractors, whether by negligence or otherWise -3- The Authonty shall hold harmless the City and Its officers, elected officials, agents, and employees agamst all claims, losses, SUitS, actIOns, costs, counsel fees, litigatIOn costs, expenses, damages, Judgments or decrees by reason of damage to any property or busmess and/or any death, mJury or disability to or of any person or party, mcludmg any employee, ansmg out of or suffered, directly or mdlrectly, by reason of or m connection with any act, error or omiSSIOn of the Authonty or the Authonty's employees, agents, or subcontractors, whether by negligence or otherwise The Authonty's obligatIOn shall mclude, but not be limited to, mvestlgatmg, adJustmg and defendmg all claims agamst the City allegmg loss from actIOn, error or omiSSIOn or breach of any common law, statutory or other delegated duty by the Authonty, the Authonty's employees, agents or subcontractors ARTICLE 6. Insurance The Borrower shall carry, throughout the life of thiS Agreement, General Liability Insurance, and such other coverage as may be appropnate The limits of the Borrowers General LiabIlity Insurance shall be not less than $1,000,000 per occurrence and $1,000,000 aggregate for the duratIOn of thiS agreement The City of Port Angeles IS to be named as an additIOnal msured on all applicable msurance policies ARTICLE 7. Other provisions SectIOn 11 Governmg Law, Venue ThiS Agreement IS governed by and shall be construed m accordance wIth the substantive laws of the State of Washmgton and shall be liberally construed so as to carry out the purposes hereof Except as otherwise reqUired by applicable law, any actIOn under thiS Agreement shall be brought m the Supenor Court of the State ofWashmgton m and for Clallam County SectIOn U Notices Except as otherwise provided herem, all notices, consents or other communicatIOns reqUired hereunder shall be m wntmg and shall be sufficiently given If addressed and hand delivered or mailed by certified or registered mail, postage prepaid and return receipt requested, as follows To the City City of Port Angeles 321 E. Fifth St / POBox 1150 Port Angeles, W A 98362 AttentIOn City Manager Fax (360) 417-4509 Telephone (360) 417-4500 -4- To the Authonty Jeff Lmcoln, Executive Director Port Angeles Harbor-Works Development Authonty 1115 E Front Street POBox 2609 Port Angeles, W A 98362 Fax (360) 457-1054 Telephone (360) 457-1055 The City or the Authonty may designate any further or different addresses to which subsequent notices, certificates, requests or other commumcatlOns shall be sent by glvmg notice of such change to the other party Notices shall be deemed served upon deposit of such notices m the Umted States mall m the manner provided above SectIOn U Bmdmg Effect This Agreement shall mure to the benefit of the City, the Authonty and shall be bmdmg upon the City and the Authonty and theu successors This Agreement may not be assigned SectIOn 7 4 Severablhty In the event any provIsIOn of this Agreement shall be held mvahd or unenforceable by any court of competent JunsdICtlOn, such holdmg shall not mvahdate or render unenforceable any other provIsIOn hereof Section I2 Amendments ThiS Agreement may be amended, changed, modified or altered only by an mstrument m wntmg duly executed by the City and the Authonty (or the successors m title of each) SectIOn 7 6 Waiver of Breach No waiver of any breach of any covenant or agreement contamed herem shall operate as a waiver of any subsequent breach of the same covenant or agreement or as a waiver of any breach of any other covenant or agreement, and m case of a breach by either party of any covenant, agreement or undertakmg, the nondefaultmg party may nevertheless accept from the other any payment or payments or performance hereunder without m any way walvmg ItS nght to exercise any of ItS nghts and remedies provided for herem or otherwise with respect to any such default or defaults that were m eXistence at the time such payment or payments or performance were accepted by It Section U No Rights Created m Third Parties The terms of thiS Agreement are not mtended to estabhsh or to create any nghts m any persons or entities other than the City, the Authonty, the respective successors and assigns of each, except that the Port shall have the nght to enforce ItS nght to have any mdebtedness owed to It repaid m parity with the debt mcurred hereunder -5- SectIOn 7 8 Time of Essence Time and all terms and conditions shall be of the essence of this Agreement SectIOn 7 9 Effective Date of and TermmatlOn of Agreement This Agreement shall take effect as of the date first wntten above ORAL AGREEMENTS OR ORAL COMMITMENTS TO LEND MONEY, EXTEND CREDIT, OR FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW IN WITNESS WHEREOF, the City and the Authonty have caused this Agreement to be executed m theu respective names by theu duly authonzed officers, and have caused this Agreement to be dated as of the date set forth on the first page hereof CITY OF PORT ANGELES, WASHINGTON PORT ANGELES HARBOR-WORKS DEVELOPMENT AUTHORITY ~ 6a=on~,-L&v~ Gary Braun, ayor J Attest Attest 6~~.J.~^ Becky J U n, ty Clerk - Approved as to form ~L-~ ")- tY~ Wilham E Bloor, City Attorney STATE OF WASHINGTON ss COUNTY OF CLALLAM I certify that I know or have satisfactory eVidence that Gary Braun and Becky J Upton are the persons who appeared before me, and that Said persons signed thiS mstrument, on oath -6- stated that said persons were authonzed to execute the mstrurnent and acknowledged It as the City Manager and Clerk, respectIvely, of the CITY OF PORT ANGELES, a mUnIcipal corporatIOn of the State of Washmgton, to be the free and voluntary act of such mUnICipal corporatIOn for the uses and purposes mentIOned m the mstrurnent Dated thiS d.8~" day of August, 2009 ,1..lilll/1I1l "~., ' R L(J. 111'+_ -:0" ............~.._ *"'f:' ~., ~ -v 0" i:'\ f / .ota.)' ~ - I .- \~~" #I.~ \~~.,. ,,~y. ~"j ~r, ........... '~/I', OF .~~ ,f1' 't"'IItIlt""\\" ~.~,3Notn/ ..:;:>,'",,,,,, K Lu5 b.!:l. (Legibly Pont or Stamp Name ofNJlary) Notary pubhc m and for the State ofWashmgton, resldmg at SelF'1 IY'l My appomtment expIres 10 I il.'l/;;'l a I , . ST ATE OF WASHINGTON ss COUNTY OF CLALLAM I certify that I know or have satIsfactory eVidence that Jeffrey A Lmcoln and Douglas G Hendncks are the persons who appeared before me, and Said persons acknowledged that Said persons signed thiS mstrument, on oath stated that Said persons were authonzed to execute the mstrument and acknowledged It as the President and Secretary, respectIvely, of Board of DIrectors of the PORT ANGELES HARBOR-WORKS DEVELOPMENT AUTHORITY, a mUnICipal corporatIOn of the State of Washmgton, to be the free and voluntary act of such mUnICipal corporatIOn for the uses and purposes mentIOned m the mstrument Dated thiS I ~ day of September, 2009 S:~~ 'f'1'-.~~ (Signature ofNatary) -;:j -<U:Ln'""- \('(\, D.-.-.t='r- C>..."~ (Legibly Pnnt or Stamp Name of Notary) Not~IC m and for the State ofWashmgton, resldmg al -'<- Q,,-':l-"- ,-"--",, My appomtment expIres 5- d. c; - \, G \LEGAL\RA YONTER\LOAN AGRMT CITY TO FDA 080209 DOC (3/26120091 Notary Public State of Washington JEANIE M. DEFRANG MY COMMISSION EXPIRES May 25, 2011 -7-