CEDA - Figtree PACE Program AgreementINDEMNIFICATION AGREEMENT
BY AND BETWEEN
THE CITY OF GILROY AND
FIGTREE COMPANY, INC.
This Indemnification Agreement (the "Agreement ") is entered into by and between the
City of Gilroy, a charter municipal corporation, duly organized and existing under the
laws of the State of California (the "City ") 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 ").
RECITALS
WHEREAS, the Authority is a joint exercise of powers authority whose members
include the City 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" j 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 City; and
WHEREAS, the legislative body of the City adopted or will adopt a resolution
authorizing the City to join the Figtree PACE Program; and
WHEREAS, the City 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
WHEREAS, the Administrator is the administrator of the Figtree PACE Program
and agrees to indemnify the City in connection with the operations of the Figtree PACE
Program as set forth herein;
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NOW, THERFORE, in consideration of the above premises and of the City's
agreement to join the Figtree PACE Program, the parties agree as follows:
1 . Indemnification. Figtree has provided the CEDA with an indemnification
for negligence or malfeasance of any type as a result of the acts or omissions of
Figtree, 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. Figtree 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 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 Figtree, except for such loss or damage
which was caused by the sole negligence or willful misconduct of the City. 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 Figtree.
2. Amend ment/Interoretation of this Agrees 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.
3. 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.
4. 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.
5. 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.
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6. 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 Figtree Companv. Inc.
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Sc•� Uc0 o, sir u Z r
If to the City City of Gilroy
7351 Rosanna Street
Gilroy, California 95020
Attn: City Administrator
7. 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.
8. Effective Date. This Agreement will be effective as of the date of the
signature of City's representative as indicated below in the signature block.
IN WITNESS HEREOF, the parties hereto duly executed this Agreement as of the date
below.
APPROVED AS TO FORM:
*_�7_
City Attorney
City of Gilroy
By
Name: Gabriel A. Gonzalez
Title: City Administrator
Date: Z
Figtree Company, Inc., a California corp.
By
Name:
Title
Date: t .? -2/41::2
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