HomeMy WebLinkAboutC-5985 - Indemnification and Insurance AgreementYS> INDEMNIFICATION AND INSURANCE AGREEMENT
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BY AND BETWEEN
THE CITY OF NEWPORT BEACH AND
FIGTREE COMPANY, INC.
This Indemnification Agreement (the "Agreement") is entered into by and between the
City of Newport Beach, a municipal corporation, duly organized and existing under the
laws of the State of California and Charter of City (the "Public Entity'), and Figtree
Company, Inc., a California corporation, the administrator of the Figtree Property
Assessed Clean Energy and Job Creation Program (the "Administrator"), which is a
program of the California Enterprise Development Authority, a California joint exercise
of powers authority (the "Authority").
WHEREAS, the Authority is a joint exercise of powers authority whose members
include the Public Entity in addition to other cities and counties in the State of
California; and
WHEREAS, the Authority established the Figtree Property Assessed Clean
Energy and Job Creation Program (the "Figtree PACE Program") to allow the financing
of certain renewable energy, energy efficiency and water efficiency improvements that
are permanently affixed to real property through the levy of assessments voluntarily
agreed to by the participating property owners pursuant to Chapter 29 of Division 7 of
the Streets and Highways Code ("Chapter 29") and the issuance of improvement
bonds, or other forms of indebtedness, under the Improvement Bond Act of 1915 upon
the security of the unpaid assessments; and
WHEREAS, the Authority has conducted or will conduct proceedings required by
Chapter 29 with respect to the territory within the boundaries of the Public Entity, and
WHEREAS, the legislative body of the Public Entity adopted or will adopt a
resolution authorizing the Public Entity to join the Figtree PACE Program; and
WHEREAS, the Public Entity will not be responsible for the formation, operation
and administration of the Figtree PACE Program as well as the sale and issuance of
any bonds or other forms of indebtedness in connection therewith, including the
conducting of assessment proceedings, the levy and collection of assessments and
any remedial action in the case of such assessment payments, and the offer, sale and
administration of any bonds issued by the Authority on behalf of the Figtree PACE
Program; and
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WHEREAS, the Administrator is the administrator of the Figtree PACE Program
and agrees to indemnify the Public Entity in connection with the operations of the
Figtree PACE Program as set forth herein;
NOW, THERFORE, in consideration of the above premises and of the Public
Entity's agreement to join the Figtree PACE Program, the parties agree as follows:
INDEMNIFICATION
Administrator has provided the CEDA with an indemnification for negligence or
malfeasance of any type as a result of the acts or omissions of the Administrator, its
officers, employees, subcontractors and agents, arising from or related to the Figtree
PACE Program, the assessments, the assessment districts, the improvements or the
financing and marketing thereof. Administrator agrees to defend, indemnify and hold
harmless the Public Entity, its officers, elected or appointed officials, employees, agents
and volunteers from and against any and all actions, suits, proceedings, claims,
demands, losses, costs and expenses, including legal costs and attorneys' fees, for
injury or damage due to negligence or malfeasance of any type claims as a result of the
acts or omissions of Administrator, except for such loss or damage which was caused
by the sole negligence or willful misconduct of the Public Entity. This indemnity shall
apply to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as limitation upon the amount of indemnification
to be provided by Administrator.
2. INSURANCE
Administrator agrees that at all times during the operation of the Figtree PACE Program,
it shall maintain insurance coverage for the program as follows: (1) Commercial General
Liability insurance with minimum limits of One Million Dollars and 00/100 ($1,000,000)
per accident for bodily injury and property damage; (ii) Workers' Compensation and
Employer's Liability insurance, and all other insurance required by law for the work to be
performed pursuant to the Program; (iii) Professional Errors and Omissions insurance in
an amount not less than One Million Dollars and 00/100 ($1,000,000) for any single
event, and (iv) Automobile Liability insurance covering Administrator's use of
automobiles, with minimum limits of One Million Dollars ($1,000,000) per accident for
bodily injury and property damage.
3. AMENDMENT/INTERPRETATION OF THIS AGREEMENT
This Agreement represents the entire understanding of the parties as to those matters
contained herein. No prior oral or written understanding shall be of any force or effect
with respect to those matters covered hereunder. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both of the
parties hereto. This Agreement shall not be interpreted for or against any party by
reason of the fact that such party may have drafted this Agreement or any of its
provisions.
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4. SECTION HEADINGS
Section headings in this Agreement are included for convenience of reference only and
shall not constitute a part of this Agreement for any other purpose.
5. WAIVER
No waiver of any of the provisions of this Agreement shall be binding unless in the form
of writing signed by the party against whom enforcement is sought, and no such waiver
shall operate as a waiver of any other provisions hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver. Except as specifically provided herein,
no failure to exercise or any delay in exercising any right or remedy hereunder shall
constitute a waiver thereof.
6. SEVERABILITY AND GOVERNING LAW
If any provision or portion thereof of this Agreement shall be held by a court of
competent jurisdiction to be invalid, void, or otherwise unenforceable, the remaining
provisions shall remain enforceable to the fullest extent permitted by law. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of California applicable to contracts made and to be performed in
California.
7. NOTICES
All notices, demands and other communications required or permitted hereunder shall
be made in writing and shall be deemed to have been duly given if delivered by hand,
against receipt, or mailed certified or registered mail and addressed as follows:
If to the Administrator Attn: Chief Executive Officer
Figtree Company, Inc.
9915 Mira Mesa Blvd., Suite 130
San Diego, California 92131
if to the Public Entity: Attn: City Manager
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92658
8. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, which together shall constitute the same instrument.
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9. EFFECTIVE DATE
This Agreement will be effective as of the date of the signature of Public Entity's
representative as indicated below in the signature block.
IN WITNESS HEREOF, the parties hereto duly executed this Agreement as of the date
written below.
APPROVED AS TO FORM:
THE CITY ff T NE
Y'S OFFICE
Date: U t
By: _
Aaront. Harp CAM joj2tfjlH
City Attorney
ATTEST:
DATE:
By: 4L &M
Leilani 1. Brown
City Clerk
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CITY
The City of Newport Beach
a California Municipal Corporation
Date: 3 -13' 1r,
By:
L-D`2L
Edward D. Selich
Mayor
Figtree Company, Inc., a California corp.
Date:
By J(Y
Mahesh Sha
Chief Executive Officer