INDEMNIFICATION AGREEMENT
BY AND BETWEEN
THE CITY OF LAKE ELSINORE AND
CLEANFUND LLC.
This Indemnification Agreement (the “Agreement”) is entered into by and between the City of Lake Elsinore, a municipal corporation or political subdivision, duly organized and existing under the laws of the State of California (the “Public Entity”) and CleanFund LLC., a Delaware public benefit corporation (“CleanFund”), the administrator of the CleanFund 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 Public Entity in addition to other cities and counties in the State of California; and WHEREAS, the Authority established the CleanFund Property Assessed Clean Energy and Job Creation Program (the “CleanFund PACE Program”) to allow the financing of certain renewable energy, energy and water efficiency improvements, seismic strengthening, electric vehicle charging infrastructure, and wildfire suppression and safety 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 CleanFund PACE Program; and WHEREAS, the Public Entity will not be responsible for the formation, operation and administration of the CleanFund 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 CleanFund PACE Program; and
WHEREAS, the Administrator is the administrator of the CleanFund PACE Program and agrees to indemnify the Public Entity in connection with the operations of the CleanFund PACE Program as set forth herein;
NOW, THERFORE, in consideration of the above premises and of the Public Entity’s agreement to join the CleanFund C-PACE Program, the parties agree as follows:
1 . Indemnification. CleanFund has provided the CEDA with an indemnification for negligence or malfeasance of any type as a result of the acts or omissions of Dividend, its officers, employees, subcontractors and agents, arising from or related to the CleanFund C-PACE Program, the assessments, the assessment districts, the improvements or the financing and marketing thereof. CleanFund 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 Clean Fund, 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 CleanFund.
2. 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.
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.
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 CleanFund LLC
5695 Castle Drive
Oakland, CA, 94611
Attn: [email protected]
If to the Public Entity: City of Lake Elsinore
130 Main Street
Lake Elsinore, CA 92530
Attn: City Manager
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 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 below.
APPROVED AS TO FORM:
_____________________________
Barbara Liebold,
City Attorney
City of Lake Elsinore
By _____________________________
Name: Jason Simpson
Title: City Manager
Date: _____________________________
CleanFund LLC., a Delaware public benefit corporation
By _____________________________
Name: John Kinney
Title: Managing Partner