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HomeMy WebLinkAboutC-5986 - Idemnification and Insurance AgreementINDEMNIFICATION AND INSURANCE AGREEMENT BY AND BETWEEN THE CITY OF NEWPORT BEACH AND d� RENEWABLE FUNDING, LLC 1 This Indemnification and Insurance Agreement (the "Agreement") is entered into by and between the City of Newport Beach, a municipal corporation ("City') and Renewable Funding, LLC, a California limited liability company (the "Administrator"), the administrator of the CaliforniaFIRST Program, which is a program of the California Statewide Communities Development Authority, a California joint exercise of powers authority (the "Authority"). RECITALS WHEREAS, the Authority is a joint exercise of powers authority whose members of which include the City in addition to other cities and counties in the State of Califomia;and WHEREAS, the Authority established the CaliforniaFIRST Program ("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 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 City; and WHEREAS, the City Council of the City adopted a resolution authorizing the City to join the PACE Program, authorizing the Authority to accept applications from eligible property owners, conduct assessment proceedings and levy assessments within the territory of the City and authorizing related actions; and WHEREAS, the Authority is solely responsible for the formation, operation and administration of the PACE Program as well as the sale and issuance of any bonds in connection therewith, including the conduct 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 PACE Program; and WHEREAS, the Administrator is the administrator of the PACE Program and agrees to indemnify the City and provide insurance and add the City as an additional insured on its insurance policy or policies in connection with the operations of the PACE Program as set forth herein; and NOW, THERFORE, in consideration of the above premises and of the City's agreement to join the PACE Program, the parties agree as follows: INDEMNIFICATION The Administrator agrees to defend, indemnify and hold harmless the City, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, fines, penalties, judgments, demands and defense costs (including, without limitation, actual, direct, out-of-pocket costs and expenses and amounts paid in compromise or settlement and no outside legal fees arising from litigation of every nature or liability of any kind or nature including civil, criminal, administrative or Investigative) arising out of or in connection with the PACE Program except such loss or damage which was caused by the sole negligence or Wilful misconduct of the City. The Administrator will conduct all defenses at its sole cost and expense and the City shall reasonably approve selection of the Administrator's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies of the Administrator, its affiliates or any other parties are applicable thereto. The policy limits of any insurance of the Administrator, its affiliates or other parties are not a limitation upon the obligation of the Administrator including without limitation the amount of indemnification to be provided by the Administrator. 2. INSURANCE The Administrator agrees that, at no cost or expense to the City, at all times during the operation of the PACE Program, to maintain the insurance coverage set forth in Exhibit A to this Agreement. 3. AMENDMENTIINTERPRETATION OF THIS AGREEMENT This Agreement, including all Exhibits attached hereto, 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. 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 a writing signed by the party against whom enforcement is sought, and no such 2 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. 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 Renewable Funding, LLC 500 12th Street, #300 Oakland, CA 94607 If to the City: 8. COUNTERPARTS Attn: City Manager City of Newport Beach 100 Civic Center Drive P.O. Box: 1768 Newport Beach, CA 92658 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. 9. EFFECTIVE DATE This Agreement will be effective as of the date of the signature of City's representative as indicated below in the City's signature block. [SIGNATURES ON NEXT PAGE] IN WITNESS HEREOF, the parties hereto duly executed this Agreement as of the date above. APPROVED AS TO FORM: THE CITY tTT RINEY'S OFFICE Date: F By: Vv(V,L/'— Aaron C. Harp CAM kaIZKjl'1 City Attorney ATTEST: Date: 01. ) (. )G✓' By: 104w� moi , Leilani I. 9roOn City Clerk /!p\ CITY The City of Newport Beach a California Mcipal Corporation Date: C) - Mayor Administrator RenewableCFulhd�r�� LLC Date:^`�� ll By---- Name:nl Title: r'151 EXHIBIT A INSURANCE A. Minimum Scope of Insurance Coverage shall be at least as broad as: The coverage provided by Insurance Services Office Commercial General Liability coverage ("occurrence") Form Number CG 0001; and 2. The coverage provided by Insurance Services Office Form Number CA 0001 covering Automobile Liability. Coverage shall be included for all owned, non - owned and hired automobiles; and 3. Workers' Compensation insurance as required by the California Labor Code and Employers Liability insurance; and 4. Professional Liability Errors & Omissions for all professional services. There shall be no endorsement reducing the scope of coverage required above unless approved by the City s Risk Manager. B. Minimum Limits of Insurance Administrator shall maintain limits no less than: Commercial General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit; and 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage; and 3. Workers' Compensation and Employers Liability: Workers' Compensation limits as required by the California Labor Code and Employers Liability limits of $1,000,000 per accident; and 4. Professional Liability Errors & Omissions $1,000,000 per occurrence/ aggregate limit. rail C. Deductibles and Self -Insured Retentions Any deductibles or self-insured retentions must be declared to, and approved by City's Risk Manager. At the option of City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its officers, employees, agents and contractors; or Administrator shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses in an amount specified by the City's Risk Manager. D. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: Commercial General Liability and Automobile Liability Coverages a. The City of Newport Beach, its officers, employees, agents and contractors are to be covered as additional insureds as respects: Liability arising out of activities performed by or on behalf of, Administrator, products and completed operations of Administrator; premises owned, leased or used by Administrator, and automobiles owned, leased, hired or borrowed by Administrator. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, employees, agents and contractors. b. Administrator's insurance coverage shall be primary insurance as respects City, its officers, employees, agents and contractors. Any insurance or self-insurance maintained by City, its officers, employees, agents or contractors shall be excess of Administrator's insurance and shall not contribute with it. c. Any failure to comply with reporting provisions of the policies by Administrator shall not affect coverage provided City, its officers, employees, agents, or contractors. d. Coverage shall state that Administrator's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurers liability. e. Coverage shall contain a waiver of subrogation in favor of the City, its officers, employees, agents and contractors. 2. Workers' Compensation and Employers' Liability Coverage shall contain waiver of subrogation in favor of the City of Newport Beach, its officers, employees, agents and contractors. 3. All Coverages Each insurance policy required by this AGREEMENT shall be endorsed to state that coverage shall not be suspended, voided, cancelled, or reduced in limits except after thirty (30) days' prior written notice has been given to City, except that ten (10) days' prior written notice shall apply in the event of cancellation for nonpayment of premium. E. Acceptability of Insurers Insurance is to be placed with insurers acceptable to City's Risk Manager. F. Verification of Coverage Administrator shall furnish City with certificates of insurance and with original endorsements affecting coverage required by this Agreement. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. Proof of insurance shall be either emailed in pdf format to: Seimone Jurjis, siudis newportbeachca.gov or mailed to the following postal address or any subsequent address as may be directed in writing by the Risk Manager. City of Newport Beach 100 Civic Center Drive P.O. Box: 1768 Newport Beach, CA 92658 G. Subcontractors Administrator shall include all subcontractors as insureds under its policies or shall obtain separate certificates and endorsements for each subcontractor. A-3 66329 A LI® CERTIFICATE OF LIABILITY INSURANCE °A191/72017) CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, 9/4/2015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement A statement on this certificate does not confer rights to the certificate holder in lieu of such endomement(s). PRODUCER NAMEACT Kamran Khaliq Commercial Lines - (212) 682-7500 PHONE FA% 212 682-7500 AIC,. Arc No Wells Fargo Insurance Services USA, Inc. E-MAIL ADDRESS, 330 Madison Avenue, 7th Floor INSURERS AFFORDING COVERAGE NAICC New York, NY 10017 INSURERA: Sentinel Insurance Company Ltd. 11000 INSURED INSURERS: XL Specialty pInsurance Company 37885 Renewable Funding, LLC INSURERC: 500 12th Street INSURER 0.: Suites 300 R 350 INSURER E Oakland CA 94607 1 INSURER F: COVERAGES CERTIFICATE NUMBER: 901130/ REVISION NIIMRFR• See W. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LMR TYPE OF INSURANCE ADDL am UBR Im POLICY NUMBER MMMDNYY MMIDDEXP LIMITS A X COMMERCUILGENERALINBILRY CLAIMS -MAGE El OCCUR 10SBAPC4773 9!26/2014 9/26/2015 EACH OCCURRENCE $ 2,000,000 DAMAGE TO PREMISES Ea oecuance$ 1,000,000 MED EXP (Any one person) $ 10,000 X X PERSONAL B ADV INJURY $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: X POLICY JEa O F-1 LOC GENERAL AGGREGATE $ 4,000,000 PRODUCTS-COMP/OPAGG $ 41000,000 $ OTHER: A AUTOMOBILE LIABILITY 10SBAPC4773 9/26/2014 9/26/2015 COMBINED SINGLE LIMIT $ 2000000 Ea accident BODILY INJURY (Per person) $ ANY AUTOV AOSCHEDULED AUUTOSS AUTOS /� v /� BODILY INJURY $ (Per accident) X HIREDAUTOS X q�MOSNMEO PROPERTYDAMAGE $ Per eccId 1 a UMBRELLA LUIB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS -MADE AGGREGATE $ DED RETENTION$ If WORKERS COMPENSATION ANDEMPLOYERs'LIABILITY YIN PER OTH- STATUTE ER E.L. EACH ACCIDENT $ ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICERAMEMBER EXCLUDED? NIA E.L. DISEASE - EA EMPLOYE $ (Mandatory In NH) If yes, describe under E.L. DISEASE -POLICY LIMIT $ DESCRIPTION OF OPERATIONS below B Professional Liability ELU136945-14 11/27/2014 11/27/2015 Aggregate Limit -$2,000,000 Retention - $100,000 each claim DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (ACORD 101, Additional Remarks Schedule, may lse aeached N more apace is required) City of Newport Beach, its officers, employees, agents and contractors are included as Additional Insureds as required by contract with respects to General Liability and includes waiver of subrogation. City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 ACORD 25 (2014101) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE The ACORD name and logo are registered marks of ACORD All richt% reserved_ (6) When You Are Added As An Additional Insured To Other Insurance That is other insurance available to you covering liability for damages arising out of the premises or operations, or products and completed operations, for which you have been added as an additional Insured by that insurance; or (7) When You Add Others As An Additional Insured To This Insurance That is other Insurance available to an additional insured. However, the following provisions apply to other insurance available to any person or organization who is an additional insured under this Coverage Part: (a) Primary Insurance When Required By Contract This Insurance is primary if you have agreed in a written contract, written agreement or permit that this insurance be primary. If other insurance Is also primary, we will share with all that other Insurance by the method described in c. below. (b) Primary And Non -Contributory To Other Insurance When Required By Contract If you have agreed in a written contract, written agreement or permit that this insurance is primary and non-contributory with the additional insured's own Insurance, this insurance is primary and we will not seek contribution from that other insurance. Paragraphs (a) and (b) do not apply to other insurance to which the additional insured has been added as an additional insured. When this insurance is excess, we will have no duty under this Coverage Part to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other Insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. BUSINESS LIABILITY COVERAGE FORM When this Insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (2) The total of all deductible and self- insured amounts under all that other insurance. We will share the remaining loss, 9 any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all the other insurance permits contribution by equal shares, we will follow this method also. Under this approach, each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of Insurance to the total applicable limits of Insurance of all Insurers. 8. Transfer Of Rights Of Recovery Against Others To Us a. Transfer Of Rights Of Recovery If the insured has rights to recover all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring "suit" or transfer those rights to us and help us enforce them. This condition does not apply to Medical Expenses Coverage. b. Waiver Of Rights Of Recovery (Waiver Of Subrogation) If the Insured has waived any rights of recovery against any person or organization for all or part of any payment, Including Supplementary Payments, we have made under this Coverage Part, we also waive that right, provided the insured waived their rights of recovery against such person or organization in a contract, agreement or permit that was executed prior to the injury or damage. Form SS 00 08 04 05 Page 17 of 24