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2014/01/02 Menifee Partners, LP Disbursement and indemnity agreement DISBURSEMENT AND INDEMNITY AGREEMENT THIS DISBURSEMENT AND INDEMNITY AGREEMENT (the "Agreement") is entered into and effective as of January 2, 2014 , at San Diego, California, by and between DIXIELINE BUILDERS FUND CONTROL, INC., a corporation("Fund Control"); and Menifee Partners L.P. (collectively"Owner"), on the basis of the following facts: RECITALS A. Fund Control, Owner, and City of Menifee are parties to a written Fund Control Agreement dated as of November 19. 2010 (the "Fund Control Agreement") pertaining to a construction project at "Shops at Scott" Section of Scott Road and Zeiders Road in Menifee, California (the"Project"). B. Pursuant to the Fund Control Agreement, Fund Control has established a separate escrow account for the Project, designated as Fund Control No. 16451 & 16451 A (the "Escrow"). Owner has directly deposited construction funds with Fund Control, which funds have been credited to the Escrow. As of the date of this Agreement, the sum of $290,583.73_ remains undisbursed under the Escrow (the "Remaining Funds"). C. Owner requests that Fund Control disburse the Remaining Funds in accordance with this Agreement. AGREEMENT IT IS HEREBY AGREED, on the basis of the foregoing facts and for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, as follows: 1. Disbursements. Owner irrevocably directs, authorizes, and instructs Fund Control to disburse the Remaining Funds as follows: (a) _$350.00 to Fund Control (as reimbursement for the costs and attorneys' fees incurred by Fund Control in connection with the preparation of this Agreement), and (b)the balance of Remaining Funds to Owner. 2. Indemnity. Owner fully releases and discharges, and shall indemnify, defend and hold Fund Control (and Fund Control's officers and employees) harmless from and against any and all claims, demands, obligations, actions, suits, judgments, awards, fines, penalties, liabilities, damages, injuries, deaths, costs, expenses, and attorneys' fees (collectively, "Claims") caused by or arising from (or allegedly caused by or arising from), in whole or in part, (a) this Agreement, and/or (b) Fund Control's actions and/or disbursements pursuant to this Agreement. 2.1 Interpretation. The indemnity section is of key importance to Fund Control, and Fund Control would not have entered into this Agreement in the absence of that section. It is the intent of the parties that the indemnity section shall (a) be broadly construed to protect Fund Control (and its officers and employees) against all Claims, (b) apply regardless of the active or passive negligence of Fund Control [except where the Claim (i) arises solely due to the active negligence of Fund Control, and (ii) does not involve the disbursements authorized by this Agreement], and (c) apply even if Owner has not been negligent or otherwise at fault. 2.2 Attorneys' Fees. In the event of any Claim, Fund Control shalt have the right to designate the attorneys who will represent and defend it in connection with the Claim, and Owner shall promptly reimburse Fund Control for any and all attorneys' fees and expenses incurred in connection with the foregoing. 3. Amendments. This Agreement may only be amended, supplemented, or modified by a written amendment executed by all parties to this Agreement. 4. Attorneys' Fees. In any judicial or arbitration action between the parties seeking interpretation or enforcement of this Agreement, the prevailing party shall be entitled to recover its reasonable costs, expenses,and attorneys' fees. 5. Joint and Several Obligations. If more than one person or entity constitutes the "Owner" under this Agreement, the obligations of Owner shall be joint and several as to each such person and entity. 6. Severability. In the event any provision of this Agreement is determined by a court of competent jurisdiction as unenforceable or void under applicable law, that provision shall be deleted; but the remaining provisions of this Agreement shall remain in full force and effect. 7. Merger. This Agreement sets forth the full agreement between the parties regarding the matters discussed herein. Except as set forth in this Agreement, no party hereto has made any promise, representation, or warranty regarding the subject matter of this Agreement. This Agreement does not terminate the Fund Control Agreement. 8. Warranty of Authority. Each person signing this Agreement represents that he or she has full power and authority to do so, and that no other authorizations or approvals of any kind are necessary. 2 IN WITNESS WHEREOF, this Agreement has been entered into as of the date of this Agreement. "Fund Control" DIXIELINE BUILDERS FUND CONTROL, INC. By Its "Owner" By Menifee Partners, LP By: Otrospa, its General Partner Bq By: Alberto Hamui CONSENT BY CITY The City of Menifee (the "City' hereby fully consents to the disbursements described in the above Agreement. The undersigned represents that he or she has full power and authority to sign this consent on behalf of the City, and that no other authorizations or approvals of any kind are necessary. Exhibit A is herein attached. City of Menifee By Dated: 12 1y Rod Jo nson City M ager 3 AOUML EXHIBIT A Scott A.Mann Mayor December 30,2013 Wallace W.Edgerton Deputy Mayor John V.Denver Menifee Partners, LP Counclimember 4909 Murphy Canyon Rd Suite 405 Thomas Fuhrman San Diego, CA 92123 Counclimember Attn: Teofilo Hamui Greg August Counclimember Re: End of Warranty Period for the Shops at Scott("Project") - Mr. Hamui, Pursuant to the terms and conditions of the Fund Control Agreement dated November 19, 2010,the Agreement for Landscape Improvements dated November 18, 2010, the Road/Drainage Improvements dated November 9,2010, the Sewer System Improvement dated November 9,2010, the Water System Improvements dated November 9,2010, and the Survery Monuments Agreement dated November 9,2010, collectively(herein referred to as the"Agreements"), the Project's warranty period has been fulfilled and the City of Menifee has inspected such improvements and has deemed overall completion and final approval. This final approval authorizes Dixieline Fund Control and San Diego Private Bank as security holders in the project to release and return any and all funds in Fund Control and/or Certificate of Deposits accounts back to the Menifee Partners, LP. Sincerely, Jonathan G. Smith, PE, QSP, QSD Director of Public Works/City Engineer 29714 Haun Road Menifee,CA 92586 Phone 951.672.6777 Fax 951.679.3843 w ,cityofinenifee.us