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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 /> 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 amendment 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 /> 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 /> 4. Waiver. No waiver of any of the provisions of this Agreement shall be binding <br /> unless in the form of writing signed by the party against whom enforcement is sought, and no such <br /> waiver shall operate as a waiver of any other provisions hereof(whether or not similar), nor shall <br /> such waiver constitute a continuing 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 /> 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 remaining provisions shall remain enforceable to the fullest extent permitted by <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 /> 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 />