2014/01/02 Dixieline Builders Fund Control, Inc. Disbursement and Indemnity AgreementDISBURSEMENT 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 shall 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.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date of this
Agreement.
"Fund Control"
DIXIELINE BUILDERS FUND CONTROL, INC.
"Owner"
By
Menifee Partners, LP
By: Otrospa, its General Partner
Bo Bv: 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
Dated: I 2 I
City
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Scott A. Mann
Mayor
Wallace W. Edgerton
Deputy Mayor
John V. Denver
Counclimember
Thomas Fuhrman
Counclimember
Greg August
Counclimember
29714 Haun Road
Menifee, CA 92586
Phone 951.672.6777
Fax 951.679.3843
w ,cityofinenifee.us
EXHIBIT A
December 30, 2013
Menifee Partners, LP
4909 Murphy Canyon Rd
Suite 405
San Diego, CA 92123
Attn: Teofilo Hamui
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