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<br /> <br />1. Indemnification. Figtree has provided the CEDA with an indemnification for <br />negligence or malfeasance of any type as a result of the acts or omissions of Figtree, its officers, <br />employees, subcontractors and agents, arising from or related to the Figtree PACE Program, the <br />assessments, the assessment districts, the improvements or the financing and marketing thereof. <br />Figtree agrees to defend, indemnify and hold harmless the City, its officers, elected or appointed <br />officials, employees, agents and volunteers from and against any and all actions, suits, proceedings, <br />claims, demands, losses, costs and expenses, including legal costs and attorneys’ fees, for injury or <br />damage due to negligence or malfeasance of any type claims as a result of the acts or omissions of <br />Figtree, except for such loss or damage which was caused by the sole negligence or willful <br />misconduct of the City. This indemnity shall apply to all claims and liability regardless of whether <br />any insurance policies are applicable. The policy limits do not act as limitation upon the amount of <br />indemnification to be provided by Figtree. <br /> <br />2. Amendment/Interpretation of this Agreement. This Agreement represents the <br />entire understanding of the parties as to those matters contained herein. No prior oral or written <br />understanding shall be of any force or effect with respect to those matters covered hereunder. No <br />supplement, modification or amend ment of this Agreement shall be binding unless executed in <br />writing by both of the parties hereto. This Agreement shall not be interpreted for or against any <br />party by reason of the fact that such party may have drafted this Agreement or any of its <br />provisions. <br /> <br />3. Section Headings. Section headings in this Agreement are included for convenience <br />of reference only and shall not constitute a part of this Agreement for any other purpose. <br /> <br />4. W aiver. No waiver of any of the provisions of this Agreement shall be binding <br />unless in the form of writing si gned by the party against who m enforcement is sought, and no such <br />waiver shall operate as a waiver of any other provisions hereof (whether or not simil ar), nor shall <br />such waiver constitute a continuin g waiver. Except as specifically provided herein, no failure to <br />exercise or any delay in exercising any right or remedy hereunder shall constitute a waiver thereof. <br /> <br />5. Severability and Governing Law. If any provision or portion thereof of this <br />Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise <br />unenforceable, the remaini ng provisions shall remain enforceable to the fullest extent permitted b y <br />law. This Agreement shall be governed by and construed and enforced in accordance with the <br />laws of the State of California applicable to contracts made and to be performed in California. <br /> <br />6. Notices. All notices, demands and other communications required or permitted <br />hereunder shall be made in writing and shall be deemed to have been duly given if delivered by <br />hand, against receipt, or mailed certified or registered mail and addressed as follows: <br />If to the Administrator Figtree Company, Inc. <br />9915 Mira Mesa Blvd., Suite 130 <br />San Diego, California 92131 <br />Attn: Chief Executive Officer <br /> <br /> <br />