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