17-029 Indemnification Agreement with FigTree Company, Inc.; PACE Program; Resolution No. 17-011 RESOLUTION NO. 17-011
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO,
CALIFORNIA, APPROVING ASSOCIATE MEMBERSHIP BY THE CITY IN THE
CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY; AUTHORIZING AND
DIRECTING THE EXECUTION OF AN ASSOCIATE MEMBERSHIP AGREEMENT
RELATING TO ASSOCIATE MEMBERSHIP OF THE CITY IN THE AUTHORITY;
AUTHORIZING THE CITY TO JOIN THE FIGTREE PACE PROGRAM;
AUTHORIZING THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY
TO CONDUCT CONTRACTUAL ASSESSMENT PROCEEDINGS AND LEVY
CONTRACTUAL ASSESSMENTS WITHIN THE TERRITORY OF THE CITY OF
CUPERTINO; AND AUTHORIZING RELATED ACTIONS
WHEREAS, the City of Cupertino, California (the "City"), a municipal corporation,
duly organized and existing under the Constitution and the laws of the State of California; and
WHEREAS, the City, upon authorization of the City Council,may pursuant to Chapter 5
of Division 7 of Title I of the Government Code of the State of California, commencing with
Section 6500 (the "JPA Law") enter into a joint exercise of powers agreement with one or more
other public agencies pursuant to which such contracting parties may jointly exercise any power
common to them; and
WHEREAS, the City and other public agencies wish to jointly participate in economic
development financing programs for the benefit of businesses and nonprofit entities within their
jurisdictions offered by membership in the California Enterprise Development Authority (the
"CEDA") pursuant to an associate membership agreement and Joint Exercise of Powers
Agreement Relating to the California Enterprise Development Authority(the"Agreement"); and
WHEREAS, under the JPA Law and the Agreement, CEDA is a public entity separate
and apart from the parties to the Agreement and the debts, liabilities and obligations of CEDA
will not be the debts, liabilities or obligations of the City or the other members of the Authority;
and
WHEREAS, the form of Associate Membership Agreement (the "Associate Membership
Agreement')between the City and CEDA is attached; and
WHEREAS, the City is willing to become an Associate Member of CEDA subject to the
provisions of the Associate Membership Agreement.
WHEREAS, CEDA has adopted the Figtree Property Assessed Clean Energy(PACE) and
Job Creation Program (the "Program" or "Figtree PACE'), to allow the financing of certain
renewable energy, energy efficiency, seismic retrofits, electric vehicle charging infrastructure,
and water efficiency improvements (the "Improvements") through the levy of contractual
assessments pursuant to Chapter 29 of Division 7 of the Streets & Highways Code ("Chapter
Resolution No.17-011
Page 2
29"), and the issuance of improvement bonds or other evidences of indebtedness (the "Bonds")
under the Improvement Bond Act of IM (Streets and Highways Code Sections 8500 et seq.)
(the "1915 Act")upon the security of the unpaid contractual assessments; and
WHEREAS,Chapter 29 provides that assessments may be levied under its provisions only
with the free and willing consent of the owner of each lot or parcel on which an, assessment is
levied at the time the assessment is levied; and
WHEREAS, the City desires to allow the owners of property ("Participating Parcel")
within its jurisdiction ("Participating Property Owners") to participate in Figtree PACE, and to
allow CERA, to conduct assessment proceedings under Chapter 29 and to issue Bonds-under the
1915 Act to finance the Improvements; and
WHEREAS,CERA will conduct assessment proceedings under Chapter 29 to establish an
assessment district(the"District")and issue Bonds under the 1915 Act to finance Improvements;
and
WHEREAS, there has been presented to this meeting a proposed form of Resolution of
Intention to be adopted by CERA in connection with such assessment proceedings (the "R01"), a
copy of which is attached hereto as Exhibit A; and
WHEREAS, said ROI sets forth the territory within which assessments may be levied for
Figtree PACE which territory shall be coterminous with the City's official boundaries of record
at the time of adoption of the ROI(the "Boundaries");and
WHEREAS, pursuant to Chapter 29, the City authorizes CEDA to conduct assessment
proceedings, levy assessments,pursue remedies in the event of delinquencies, and issue bonds or
other forms of indebtedness to finance the Improvements in connection with Figtree PACE; and
WHEREAS, to protect the City in connection with operation of the Figtree PACE
program, Figtree Energy Financing, the program administrator, has agreed to defend and
indemnify the City; and
WHEREAS, the City will not be responsible for the conduct of any assessment
proceedings, the levy of assessments, any required remedial action in the case of delinquencies,
the issuance, sale or administration of the bonds or other indebtedness issued in connection with
Figtree PACE,
-NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of
Cupertino,hereby finds, determines and declares as follows:
Resolution No.17-011
Page 3
Section I. The City Council hereby specifically finds and declares that the actions
authorized hereby constitute public affairs of the City, The City Council further finds that the
statements, findings and determinations of the City set forth in the preambles above are true and
correct.
Section 2. The Associate Membership Agreement presented to this meeting and on file
with the City Clerk is hereby approved. The Mayor of the City,the City Manager, the City Clerk
and other officials of the City are each hereby authorized and directed, for and on behalf of the
City, to execute and deliver the Associate Membership Agreement in substantially said form,
with such changes therein as such officer may require or approve, such approval to be
conclusively evidenced by the execution and delivery thereof.
Section 3. The officers and officials of the City are hereby authorized and directed,
jointly and severally, to do any and all things and to execute and deliver any and all documents
which they may deem necessary or advisable in order to consummate, carry out, give effect to
and comply with the terms and intent of this resolution and the Associate Membership
Agreement. All such actions heretofore taken by such officers and officials are hereby
confirmed,ratified and approved.
Section 4. Good Standing, The City is a municipal corporation and in good standing,
Section 5. Public Benefits. Oil the date hereof, the City Council hereby finds and
determines that the Program and issuance of Bonds by CERA in connection with Figtree PACE
will provide significant public benefits, including without limitation, savings in effective interest
rates, bond preparation, bond underwriting and bond issuance costs and reductions in effective
user charges levied by water and electricity providers within the boundaries of the City.
Section 6. Appointment of CERA. The City hereby appoints CERA as its
representative to (i) record the assessment against the Participating Parcels, (ii) administer the
District in accordance with the Improvement Act of 1915 (Chapter 29 Part 1 of Division 10 of
the California Streets and Highways Code(commencing with Section 8500 et seq) (the "Law"),
(iii) prepare program guidelines for the operations of the Program and (iv) proceed with any
claims, proceedings or legal actions as shall be necessary to collect past due assessments on.the
properties within the District in accordance with the Law and Section 6509.6 of the California
Government Code. The City is not and will not be deemed to be an agent of Figtree or CERA as
a result of this Resolution.
Section 7. Assessment Proceedings. In connection with Figtree PACE, the City hereby
consents to the special assessment proceedings by CEDA pursuant to Chapter 29 on any property
within the Boundaries and the issuance of Bonds under the 1915 Act,provided that:
(1) Such proceedings are conducted pursuant to one or more Resolutions of Intention in
substantially the form of the ROI;
Resolution No.17-011
Page 4
(2) The Participating Property Owners, who shall be the legal owners of such property,
voluntarily execute a contract pursuant to Chapter 29 and comply with other
applicable provisions of California law in order to accomplish the valid levy of
assessments; and
(3) The City will not be responsible for the conduct of any assessment proceedings, the
levy of assessments, any required remedial action in the case of delinquencies in such
assessment payments, or the issuance, sale or administration of the Bonds in
connection with Figtree PACE.
Section 8. Program Report. The City Council hereby acknowledges that pursuant to the
requirements of Chapter 29, CEDA has prepared and will update from time to time the "Program
Report" for Figtree PACE (the "Program 'Report") and associated documents,
and CEDA will
undertake assessment proceedings and the financing of Improvements as set forth in the Program
Report.
Section 9. Foreclosure. The City Council hereby acknowledges that the Law permits
foreclosure in the event that there is a default in the payment of assessments due on a property.
The City Council hereby designates CERA as its representative to proceed with collection and
foreclosure of the liens on the defaulting properties within the District, including accelerated
foreclosure pursuant to the Program Report.
Section 10. Indemnification. The City Council acknowledges that Figtree has provided
the City with an indemnification agreement, as shown in Exhibit B, for negligence or
malfeasance of any type as a result of the acts or omissions of Figtree, its officers, employees,
subcontractors and agents. The City Council hereby authorizes the appropriate officials and staff
of the City to execute and deliver the Indemnification Agreement to Figtree.
Section 11. City Contact Designation. The appropriate officials and staff of the City are
hereby authorized and directed to make applications for Figtree PACE available to all property
owners who wish to finance Improvements. The following staff persons, together with any other
staff designated by the City Manager fioin time to time, are hereby designated as the contact
persons for CERA in connection with Figtree PACE: Misty Mersich, Sustainability Manager,
408-777-3362,MistyM@cupertino.org.
Section 12. CEQA. The City Council hereby finds that adoption of this Resolution is not
a "project" under the California Environmental Quality Act ("CEQ:A"), because the Resolution
does not involve any commitment to a specific project which may result in a potentially
significant physical impact on the environment, as contemplated by Title 14, California Code of
Regulations, Section 15378(b)(4)).
Section 13. Effective Date. This Resolution shall take effect immediately upon its
adoption. The City Clerk is hereby authorized and directed to transmit a certified copy of this
resolution to Figtree Energy Financing.
Resolution No.17-011
Page 5
Section 14, Costs. Services related to the formation and administration of the assessment
district will be provided by CEDA at no cost to the City.
PASSED AND ADOPTED at a Regular Meeting of the City Council of the City of
Cupertino the 7th day of February,2017 by the following vote:
Vote Members of the City Council
AYES: Vaidhyanathan, Paul, Chang, Scharf, Sinks
NOES: None
ABSENT. None
ABSTAIN: None
ATTEST: APPROVED:
Grace Schmidt, City Clerk Savita Vaidhyanathan,Mayor,
City of Cupertino
Resolution No.17-011
Page 6
CERTIFICATE OF CLERK OF THE CITY COUNCIL
CITY OF
1APClerk ofthe hereby certify that the foregoing
e ert
City of �4
tj
is a full, true and correct copy of a resolution duly a�oppted at he meeting of the City Council of
the City of Cupertino duly and regularly held in the Council Chambers, -
-+i)yw dA
on 2011, of which meeting all of the members of said
City Council had due notice.
I further certify that I have carefully compared the foregoing copy with the original
minutes of said meeting on file and of record in my office; that said copy is a full, true and
correct copy of the original resolution adopted at said meeting and entered in said minutes; and
that said resolution has not been amended, modified, rescinded or revoked in any manner since
the date of its adoption, and the same is now in full force and effect.
qX
IN WITNESS WHEREOF, I have executed this certificate this 2 day of
2011.
6,
City Clerk
City of Cupertino
Resolution No.17-013,
Page 7
EXHIBIT A
CERA,Resolution.of Intention
RESOLUTION OF THE CALIFORNIA ENTERPRISE DEVELOPMENT
AUTHORITY DECLARING INTENTION TO FINANCE INSTALLATION OF
DISTRIBUTED GENERATION RENEWABLE ENERGY SOURCES,ENERGY
EFFICIENCY,SEISMIC RETROFITS,ELECTRIC VEHICLE CHARING
INFRASTRUCTURE,AND WATER EFFICIENCY IMPROVEMENTS IN THE
CITY OF CUPERTINO
WHEREAS,the California Enterprise Development Authority("CEDA") is a joint
powers authority authorized and existing pursuant to Joint Powers Act(Government Code
Section 6500 et seq.)and that certain Joint Exercise of Powers Agreement(the"Agreement")
dated as of June 1, 2006,by and among the cities of Eureka, Lancaster and Selma; and
WHEREAS, CEDA is authorized under the Agreement and Chapter 5 of Division 7 of
Title I of the Government Code of the State of California and in accordance with Chapter 29 of
Part 3 of Division 7 of the Streets &Highways Code of the State of California("Chapter 29") to
authorize assessments to finance the installation of distributed generation renewable energy
sources, energy efficiency, seismic retrofits, electric vehicle charging infrastructure, and water
efficiency improvements that are permanently fixed to real property ("Authorized
Improvements"); and
WHEREAS,CEDA has obtained authorization from the City of Cupertino(the"City")
to enter into contractual assessments for the financing of the installation of Authorized
Improvements in the City; and
WHEREAS,CEDA desires to declare its intention to establish a Figtree PACE program
("Figtree PACE")in the City,pursuant to which CEDA, subject to certain conditions set forth
herein,would enter into contractual assessments to finance the installation of Authorized
Improvements in the City.
NOW,THEREFORE,BE IT RESOLVED BY THE BOARD OF DIRECTORS OF
THE CALIFORNIA ENTERPRISE DEVELOPMENT AUTHORITY,AS FOLLOWS:
Section 1. Findings. The Board of Directors hereby finds and determines the following,
(a) The above recitals are true and correct and are incorporated herein by this
reference.
(b) Energy and water conservation efforts, including the promotion of Authorized
Improvements to residential, commercial, industrial, or other real property, are
necessary to address the issue of global climate change and the reduction of
greenhouse gas emissions in the City.
(c) The upfront cost of making residential, commercial, industrial, or other real
property more energy and water efficient, along with the fact that most
commercial loans for that purpose are due on the sale of the property, prevents
many property owners from installing Authorized.Improvements,
(d) A public purpose will be served by establishing a contractual assessment program,
to be known as Figtree PACE, pursuant to which CERA will finance the
installation of Authorized Improvements to residential, commercial, industrial, or
other real property in the City.
Section 2. Determination of Public Interest. The Board of Directors hereby
determines that(a)it would be convenient, advantageous,and in the public interest to designate
an area,which shall encompass the eotireigeographic territory within the boundaries of the City,
within which CEDA and property owners within the City may enter into contractual assessments
to finance the installation of Authorized-Improvements pursuant to Chapter 29 and(b)it is in the
public interest for CERA to finance the installation of Authorized Improvements in the County
pursuant to Chapter 29,
Section 3. Identification of Authorized Improvements. CMDA hereby declares its
intention to make contractual assessment financing available to property owners to finance
installation of Authorized Improvements,including but not limited to those improvements
detailed in the Report described in Section 8 hereof(the"Report'), as that Report may be
amended from time to time.
Section 4. Identification of Boundaries. Contractual assessments may be entered into
by property owners located within the entire geographic territory of the City including
unincorporated territory within City Boundaries. A property owner located within a City within
the City may enter into contractual assessments with CERA only after such City has adopted a
resolution to authorize participation in,the PACE Program.
Section 5. Proposed Financing Arrangements. Under Chapter 29,CERA may issue
bonds, notes or other forms of indebtedness(the"Bonds)pursuant to Chapter 29 that are
payable by contractual assessments. Division 10(commencing with Section 8500)of the Streets
&Highways Code of the State(the".Improvement Bond Act of 1915")shall apply to any
indebtedness issued pursuant to Chapter 29, insofar as the Improvement Bond Act of 1915 is not
in conflict with Chapter 29. The creditworthiness of a property owner to participate in the
financing of Authorized Improvements will be based on the criteria developed by Figtree Energy
Financing(the"Program Administrator")-upon consultation with Figtree PACE Program
underwriters or other financial representatives, CERA general counsel and bond counsel, and as
shall be approved by the Board of Directors of CEDA. In connection with indebtedness issued
under the Improvement Bond Act of 1915 that are payable from contractual assessments,serial
and/or term improvement bonds or other indebtedness shall be issued in such series and shall
mature in such principal amounts and at such times(not to exceed 20 years from the second day
of September next following their date) and at such rate or rates of interest(not to exceed the
maximum rate permitted by applicable law)as shall be determined by the Board of Directors at
the time of the issuance and sale of the indebtedness. The provisions of Part 11,1 of the
Improvement Bond Act of 1915 shall apply to the calling of the bonds. It is the intention of the
Board of Directors to create a special reserve fund for the bonds under Part 16 of the
Improvement Bond Act of 1915, Neither CEDA, nor any of its members participating in the
Figtree PACE Program, shall advance available surplus funds from its treasury to cure any
deficiency in the redemption fund to be created with respect to the indebtedness;provided,
however, that this determination shall not prevent CEDA or any of its members from, in their
sole discretion, so advancing funds. The Bonds may be refunded under Division I1,5 of the
California Streets and Highways Code or other applicable laws permitting refunding,upon the
conditions specified by and upon determination of CEDA.
CEDA hereby authorizes the Program Administrator,upon consultation with CEDA
general counsel,bond counsel and the Figtree PACE underwriter,to commence preparation of
documents and take necessary steps to prepare for the issuance of bonds,notes or other forms of
indebtedness as authorized by Chapter 29.
In connection with the issuance of bonds payable from contractual assessments, CEDA
expects to obligate itself, through a covenant with the,owners of the bonds,to exercise its
foreclosure rights with respect to delinquent contractual assessment installments under specified
circumstances.
Section C. Public Hearing. Pursuant to the Act, CEDA hereby orders that a public
hearing be held before CEDA Board(the"Board"), at 550 Bercut Drive, Suite 0, Sacramento,
CA 95811,on at_A, forthepurposes of allowing interested
persons to object to,or inquire about,the proposed Figtree PACE Program. The public hearing
may be continued from time to time as determined by the Board for a time not exceeding a total
of 180 days.
At the time of the hearing, the Report described in Section 8 hereof shall be summarized,
and the Board shall afford all persons who are present an opportunity to comment upon,object
to,or present evidence with regard to the proposed Figtree PACE Program, the extent of the area
proposed to be included within the boundaries of the assessment district,the terms and
conditions of the draft,assessment contract described in Section 8 hereof(the"Contract"),or the
proposed financing provisions. Following the public hearing, CEDA may adopt a resolution
confirming the Report(the"Resolution Confirming Report")or may direct the Report's
modification in any respect,or may abandon the proceedings.
The Board hereby orders the publication of a notice of public hearing once a week for
two successive weeks. Two publications in a newspaper published once a week.or more often,
with at least five days intervening between the respective publication dates not counting such
publication dates are sufficient. The period of notice will commence upon the first day of
publication and terminate at the end of the fourteenth day. The first publication shall occur not
later than 20 days before the date of the public hearing.
Section 7. Notice to Water and Electric Providers. Pursuant to Section 5898.24 of the
Streets &Highways Code, written notice of the proposed contractual assessment program within
the City to all water and electric providers within the boundaries of the City has been provided,
Section S. Report. The Board hereby directs the Program Administrator to prepare the
Report and file said Report with the Board at or before the time of the public hearing described
in Section 6 hereof containing all of the following,,,
(a) A map showing the boundaries of the territory within which contractual
assessments are proposed to be offered, as set forth in Section 4 hereof
(b) A draft contractual assessment contract(the"Contract")specifying the terms and
conditions of the agreement between CEDA and a property owner.
(c) A statement of CEDA's policies concerning contractual assessments including all
of the following:
(1) Identification of types of Authorized Improvements that may be financed
through the use of contractual assessments.. -
(2) Identification of the CEDA official authorized to enter into contractual
assessments on behalf of CEDA.
(3) A maximum aggregate dollar amount of contractual assessments.
(4) A method for setting requests from property owners for financing through
contractual assessments in priority order in the event that requests appear
likely to exceed the authorization amount.
(d) A plan for raising a capital amount required to pay for work performed in
connection with contractual assessments. The plan may include the sale of a bond
or bonds or other financing.relationship pursuant to Section 5898.28 of Chapter
29. The plan(i)shall include a statement of, or method for determining, the
interest rate and time period during which contracting property owners would pay
any assessment, (ii)shall provide for any reserve fund or funds, and(iii)shall
provide for the apportionment of all or any portion of the costs incidental to
financing, administration and collection of the contractual assessment program
among the consenting property,owners and CEDA.
A report on the results of the discussions with the County Auditor-Controller described in
Section 1.0 hereof, concerning the additional fees, if any,that will be charged to CEDA for
inclusion of the proposed contractual assessments on the general property tax roll of the City,
and a plan for financing the payment of those fees.
Section 9. Nature of Assessments. Assessments levied pursuant to Chapter 29,and the
interest and any penalties thereon, will constitute a lion against the lots and parcels of land on
which they are made,until they are paid. Unless otherwise directed by CEDA, the assessments
shall be collected in the same manner and at the same time as the general taxes of the City on
real property are payable, and subject to the same penalties and remedies and lien priorities in the
event of delinquency and default.
Section I.U. Consultations with County Auditor-Controller. CEDA hereby directs the
Program Administrator to enter into discussions with the County Auditor-Controller in order to
reach agreement on what additional fees, if any, will be charged to CEDA for incorporating the
proposed contractual assessments into the assessments of the general taxes of the County on real
property.
Section 11. Preparation of Current Roll of Assessment. Pursuant to Section
5898.24(c), CERA hereby designates the Program Administrator as the responsible party for
annually preparing the current roll of assessment obligations by assessor's parcel number on
property subject to a voluntary contractual assessment.
Section 12. Procedures for Responding to Inquiries. The Program Administrator shall
establish procedures to promptly respond to inquiries concerning current and future estimated
ed
liability for a voluntary contractual assessment.
Section 13. Effective Date. This resolution shall take effect immediately upon its
adoption.
PASSED AND ADOPTED this day of
201_.
CALIFORNIA ENTERPRISE
DEVELOPMENT AUTHORITY
.By;
Gurbax Sahota, Chair
ATTEST:
Helen Schaubmayer,Assistant Secretary
EXHIBIT B
Indemnification Agreement
INDEMNIFICATION AGREEMENT
BY AND BETWEEN
THE CITY OF CUPERTINO,CALIFORNIA AND
FIGTREE COMPANY, INC.
This Indemnification Agreement(the"Agreement")is entered into by and between the City of
Cupertino, a municipal corporation or political subdivision,duly organized and existing under the
laws of the State of California(the"City") and Figtree Company, hie., 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") 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, tinder 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;
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:
I Indemnification. Figtree has provided the CERA 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. Amep4pient/Interpretatioil of this Agreement, This Agreement represents the
entire understanding of the parties as to those matters contained herein. No prior oral or written
understandilig 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. Sectioq Headinga. 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 an.-d.....!L-ov.!QraWg La3l. 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. N_9� 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 Company,Inc.
14
3 3 0 5c- J
San Diego, California , �_.2
Attn: Chief Executive Officer
If to the City: City of Cupertino
10300 Torre Ave
Cupertino, CA 95014
Attention: City Manager
7. Counterparts. This Agreement may be executed in one or more counterparts, each
of which sliall 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.
15
APPROVED AS TO FORM:
—City Attorney
City of up 'no
By
,�
Name:
Title: I FnL� ���
-
&LIC
Date: Zo
2,(P–f-7
Figtree Company, Inc., a California corp.
Name:Peter Grabell
Title: Senior Vice President
Date: wet et -2.zj-�
4822-8409-6773.1