2022/07/20 Dividend Finance Inc Indemnification Agreement - Established the Figtree PACE ProgramINDEMNIFICATION AGRE EMENT
BY AND BETWEEN
THE CITY OF MENIFEE AND
DIVIDEND FINANCE INC.
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 Califomia; and
WHEREAS, the Authority established the Figtree Property Assessed Clean Energy and
Job Creation Program (the "Figtree PACE Program") to allow the financing ofcertain renewable
energy, energy and water efficiency improvements, seismic serengthening, electric vehicle
charging infrastructure, and wildfire suppression and safety improvementsthat are permanently
affixed to real property through the levy ofassessments voluntarily agreed to by the participating
property owners pursuant to chapter 29 of Division 7 of the streets and Highways code
(..Chapter 29") utd the issuance of improvement bonds, or other forms of indebtedness. under
the lmprovement Bond Act of l9l5 upon the security ofthe unpaid assessments; and
WHEREAS, the Authority has conducted or will conduct proceedings required by Chapter
29 with respect to the territory within the boundaries ofthe 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
wHERf,AS, the Public Entity will not be responsible for the formation, operation and
administration ofthe Figtree PACE Program as well as the sale and issuance ofany bonds or other
forms of indebtedness in connection therewith, including the conducting of assessment
proceedings, the levy and collection ofassessments and any remedial action in the case of such
urr"r.."ni payments, and the offer, sale and administration ofany bonds issued by the Authority
on behalfofthe Figtree PACE Program; and
WHEREAS, the Administrator is the adminisrator 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;
This Indemnification Agreement (the "Agreement") is entered into by and between the City of
Menifee, a municipal corporation or political subdivision, duly organized and existing under the
laws of the State of California (the "Public Entity") and Dividend Finance Inc., a Delaware
corporation ("Dividend"), the administrator ofthe Figtree Property Assessed Clean Energy and
Job Creation Program (the "Administrator"), which is a program of the Califomia Enterprise
Development Authority, a Califomia joint exercise of powers authority (the "Authority").
RECITAI,S
4825-8409-6771 r
NOW, THERFORE, in consideration of the above premises and of the Public Entity's
agreement to join the Figtree C-PACE Program. the parties agree as follows:
Indemnification. Dividend has provided the CEDA with an indemnification for
negligence or malfeasance ofany type as a result ofthe acts or omissions of Dividend, its officers,
employees, subcontractors and agents, arising from or related to the Figtree C-PACE Program,
the assessments, the assessment districts, the improvements or the financing and marketing
thereof. Figtree 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
attomeys' 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 Public Entity. This indemnity shall apply to all claims
and liability regardless ofwhether any insurance policies are applicable. The policy limits do not
act as limitation upon the amount of indemnification to be provided by Figtree.
2. This Agreement represents the
entire understanding of the parties as to those matters contained herein. No prior oral or written
understanding shall be ofany 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 ofthe 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. Sectiql-Ufadil8g 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. llhivsf. No waiver ofany ofthe 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 ofany 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. Severabilitv and Governins 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 lullest extent permitted
by law. This Agreement shall be govemed by and construed and enforced in accordance with the
laws of the State of California applicable to contracts made and to be performed in Califomia.
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 ifdelivered by
hand, against receipt, or mailed certified or registered mail and addressed as follows:
I
24825-8409-6773 I
If to the Administrator Dividend Finance lnc.
9330 Scranton Road, Suite 600
San Diego, Califomia 92121
Attn: Senior Vice President, PACE
If to the Public Entity:City of Menif'ee
29844 Haun Road
Menifee. CA 92586
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 ofthe date ofthe 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:
*ft er
len'e[flw'{"f"hing,
City Attomey
City of Menifee
llv
Villa
Title: City Manager
[)ate:
B
Name: Peter S. Grabell
Title: Senior Vice President. PACE
Date:
34825-8409-6773 r
Name: Armando
Dividend Finance [nc., a Delaware corporation