2004-10-28 Centre Pointe (City of La Quinta) - Indemnification Agreement - CP Development, LLCINDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Indemnification Agreement") is made
and entered into as of Qom`: 02R , 2004, by and between CP DEVELOPMENT
LA QUINTA, LLC, a California limited liability company ("Developer"), and the CITY OF
LA QUINTA, a California municipal corporation and charter city organized and existing under
the Constitution of the State of California ("City"), with reference to the following Recitals:
RECITALS
A. On or about December 18, 2003, Developer and the La Quinta Redevelopment
Agency ("Agency") entered into that certain Disposition and Development Agreement (the
"DDA"), pursuant to which, among other things, (i) Agency agreed to sell to Developer, and
Developer agreed to purchase from Agency certain real property identified therein as the
"Property", which is located in the City of La Quinta, County of Riverside, State of California,
and (ii) Developer agreed to construct, complete, and operate on the Property a commercial
project containing a medical office/surgical facility, a development containing privately owned
villas (the "Sanctuary Villas Development"), a mid -price suites hotel, a resort -style
condominium/casitas development (the "Casitas Development"), two (2) sit-down restaurants,
and two (2) single-family residential developments (the "Residential Component"), with forty
(40) of the single-family homes restricted for sale to moderate -income buyers at restricted sales
prices, all as more particularly described in the DDA (collectively, the "Project).
B. Concurrently with the Developer's and Agency's execution of the DDA,
Developer and the City entered into that certain Development Agreement dated December 18,
2003, and recorded on January 5, 2004, as Instrument No. 2004-0005256, in the Official Records
of Riverside County (the "Development Agreement"), which, among other terms, (i) sets forth a
payment schedule for Developer's mitigation payments to the City; (ii) sets forth a schedule for
Developer's payment to the City of Three Hundred Forty -Six Thousand Eleven Dollars
($346,011) as Developer's financial obligation toward certain landscaping improvements to be
installed on a portion of the Property; (iii) requires Developer, at its sole cost, to construct a
neighborhood park on certain real property owned in fee by the City; and (iv) sets forth the
extent to which Developer may construct, develop, use and operate the Project, all as more
particularly described in the Development Agreement.
C. Developer initially informed the City and Agency that the Residential Component
would be constructed by Ehline Development Co., a California corporation ("Ehline
Development Co."). As a result, both the DDA and Development Agreement, as originally
executed, permit Developer to transfer and assign the Residential Component to Ehline
Development Co. or to an affiliated entity of Ehline Development Co. (an "Affiliated Entity").
The term "Ehline" shall be used hereinafter to refer to, collectively, Ehline Development Co. and
the Affiliated Entities.
D. On or about September 23, 2004, Agency and Developer entered into that certain
Amendment No. 1 to Disposition and Development Agreement (the "DDA Amendment") to,
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among other revisions, omit Ehline as a permitted assignee/transferee of the Residential
Component and to instead permit the assignment/transfer of the Residential Component and also
the Casitas Development and the Sanctuary Villas Development to Lennar Homes of California,
Inc., a California corporation ("Lennar").
E. The City has prepared an amendment to the Development Agreement (the
"Development Agreement Amendment") to revise the transfer and assignment provisions in the
Development Agreement in a manner consistent with the revisions made to the DDA. The City
has expressly conditioned its approval of the Development Agreement Amendment on
Developer's execution of an indemnification agreement substantially in the form hereof.
F. The parties hereto now wish to impose on Developer the obligation to indemnify
the City, as more particularly defined in this Indemnification Agreement, against any claims
regarding the assignment/transfer revisions set forth in the Development Agreement Amendment
or resulting from the City's approval of the Development Agreement Amendment, or arising
from Ehline's entry onto the Property, or Ehline's or Developer's obligations to third parties
including but not limited to those who have prepared plans or conducted work in furtherance of
the Project.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Indemnification by Developer. Developer hereby agrees that it shall indemnify,
defend, and hold harmless City and City's officers, officials, members, employees, agents,
consultants, and representatives, from and against any and all claims, liabilities, damages, losses,
suits, costs and expenses (including but not limited to expert witness fees and reasonable
attorneys' fees) of every kind, nature, and type asserted by any person or entity arising out of the
City's agreement, as set forth in the Development Agreement Amendment, to revise the
assignment/transfer provisions set forth in the Development Agreement, or resulting from the
City's approval of the Development Agreement Amendment, or arising from Ehline's entry onto
the Property, or Ehline's or Developer's obligations to third parties including but not limited to
those who have prepared plans or conducted work in furtherance of the Project, including, but
not limited to, persons or entities who have designed or prepared plans or conducted any other
work related to the Project on behalf of Ehline or Developer
11.1 Developer's indemnification obligations herein are in addition to the
indemnification obligations contained in the Development Agreement, and nothing herein is
intended to amend or limit Developer's indemnification obligations set forth in the Development
Agreement. In the event of any conflict between the indemnification obligations herein and
those contained in the Development Agreement, the indemnification provisions which provide
the greatest protection to the City shall prevail.
2. Non -liability of City Officers and Employees. No officer, official, member,
employee, agent, or representative of City shall be personally liable to Developer, or any
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543302.01 a09/23/04 -3-
successor or assign of same, in the event of any default or breach by City, or for any amount
which may become due to City, or any successor or assign of same, or for breach of any
obligation of the terms of this Indemnification Agreement
3. Successors and Assigns. This Indemnification Agreement shall be binding upon
and shall inure to the benefit of the successors and assigns of the respective parties hereto.
4. Governing Law. This Indemnification Agreement shall be governed by and
construed in accordance with the laws of the State of California.
5. Further Assurances. The parties covenant and agree that they will execute such
other and further instruments and documents as are or may become necessary or convenient to
effectuate and carry out this Indemnification Agreement.
6. Authority of Signatories to Bind Principals. The persons executing this
Indemnification Agreement on behalf of their respective principals represent that (i) they have
been authorized to do so and that they thereby bind the principals to the terms and conditions of
this Indemnification Agreement and (ii) their respective principals are properly and duly
organized and existing under the laws of, and permitted to do business in, the State of California.
7. Interpretation. The paragraph headings of this Indemnification Agreement are for
reference and convenience only and are not part of this Indemnification Agreement. They have
no effect upon the construction or interpretation of any part hereof. The provisions of this
Indemnification Agreement shall be construed in a reasonable manner to effect the purposes of
the parties and of this Indemnification Agreement.
8. Attorney's Fees. In the event that a party to this Indemnification Agreement
brings an action against another party hereto by reason of the breach of any condition, covenant,
representation or warranty in this Indemnification Agreement, or otherwise arising out of this
Indemnification Agreement, the prevailing party in such action shall be entitled to recover from
the non -prevailing party expert witness fees, and its reasonable attorney's fees and costs.
Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to
attorney's fees shall be entitled to all other reasonable costs for investigating such action,
including the conducting of discovery.
9. Counterparts. This Indemnification Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed to be an original
and all of which counterparts taken together shall constitute but one and the same instrument.
[END — SIGNATURE PAGE FOLLOWS]
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543302.01 a09/23/04 -4-
IN WITNESS WHEREOF, this Indemnification Agreement has been executed by the
parties as of the date set forth above.
Dated: C � Z$ , ?c=d-¢
Dated: C)c.-r 71g. ?mt4
Dated: 0 Gf 2i1? 2-100 T
ATTEST:
APPROVED AS TO FORM:
RUTAN U%ol 7a�
By
. Ka eri Jenson, Ci Attorney
"Developer"
CP DEVELOPMENT LA QUINTA, LLC,
a California limited liability company
By: Oliphant Family Trust
Its: Member
By:
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By:
Richard R. Oliphant
Its: President
"City"
CITY OF LA QUINTA, a California municipal
corporation and charter city organized and
existing under the Constitution of the State of
California
By:
/zvv��
Thomas Genovese
Title: Executive Director
882/015610-0061
543302.01 a09/23/04 -5-
State of California
County of Riverside
On i0 I �,Q l�.co 4 before me, Phyllis Manley, Notary Public, personally
appeared Richard R. Oliphant, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity, and that by
his signature on the instrument the person or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal. (Seal)
PMY" MANY
comet on # 137M
CaNfomio
mverode county
10MY Comm. EA*0 OCt 1& 2OOd
State of California
) ss.
County of Riverside )
On 1 t I QR I 2oD4 before me, Phyllis Manley, Notary Public, personally
appeared Thomas P. Genovese, personally known to me to be the person whose name
is subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument the person
or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
(Seal)
PMILtJS MIAWY
CorrxnWpn # 13769M
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Wendde County
My Can. Oct 166 -2006