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2023/03/20 Ethanac Menifee, LLCas of AGREEMENT TO INDEMN IFY AND HOLD HAR]VILESS This ement to lndemnify and Hold Harmless ("Agreement") is entered into, effective 2D ,2023, by and between the CITY OF MENIFEE, a municipal corporation, on the one hand ("City"), and ETHANAC MENIFEE, LLC, a Delaware Limited Liability Company ("lndemnitor" or "Indemnitors"), on the other. The City and Indemnitor(s) are herein referred to collectively as the "Parties" and individually as a "Party." RECITALS Whereas, ETHANAC MENIFEE, LLC has applied to the City for discretionary approval of a major plot plan application (PLN2l-0290) to construct two (2) concrete tilt-up buildings totaling 251,133 square feet (sq. ft.) which includes approximately 206,019 sq. ft ofwarehousing, approximately 25,114 sq. ft of manufacturing area and approximately 20,000 sq' ft. of office area on a 13.89 gross acre project site (the "Projecf') located south of Ethanac Road, west of Bamett Road and lnterstate 215, north of McLaughlin Road and east ofEvans Road and the Line-A Flood Channel at Assessor Parcel Numbers (APN)s 331-060-036 and 331-060-021 (the "Property"); and Whereas, in connection with the consideration of the above-mentioned discretionary approvals, Indemnitor(s) has offered to, and hereby agrees that it will, indemnify and hold the City harmless from any challenges arising from or related to the discretionary approvals, the Property or the Project as more fully set lorth in this Agreement. AGREEMENT NOW, THEREFORE, for full and valuable consideration. the receipt and sulliciency of which are hereby acknowledged, and based upon the foregoing recitals, and the terms, conditions, covenants, and agreements contained herein, the Parties hereto agree as follows: 1. Incorporation of Recitals. The Recitals set forth above are an integral part of this Agreement, and are fully incorporated herein. 2. Indemnitors' Indemnification Obligations. lndemnitor(s) shall indemnify, defend, and hold harmless the City of Menifee and its elected city council, appointed boards, commissions, committees, officials, employees, contractors, consultants (which may include the County of Riverside and its employees, officers, officials, and agents), and agents (herein, collectively, the "lndemnitees") from and against any and all claims, liabilities, losses, fines, penalties, and expenses, including without limitation litigation expenses and attomey's fees, to the extent, arising out of either (i) the City's approval of the Project or actions related to the Property, including without limitation any judicial or administrative proceeding initiated or maintained by any person or entity challenging the validity or enforceability of any City permit or approval relating to the Project, any condition ofapproval imposed by the City on such permit or approval, and any finding or determination made and any other action taken by any ofthe lndemnitees in conjunction with such permit or approval, including without limitation any action taken pursuant to the Calilomia Environmental Quality Act (*CEQA"). or (ii) the acts. omissions. or operations of the Indemnitor(s) and the directors, officers, members, partners, employees, agents, 245v03 t858,0001 E073430.2 fr3/17 n3 Dated: 3 I ao ,2023 Corporation , By: (& ARMANDO G. VIL Its:CITY MANAGER c 2465l0llt58-0001 4011410 2 .OJt l7 D3 -2- contractors, and subcontractors ofeach person or entity comprising the Indemnitor(s) with respect to the ownership, planning, design, construction, and maintenance of the Project and the Property for which the Project is being approved. The City shall promptly notifo the lndemnitor(s) in writing of any claim, lawsuit, or other judicial or administrative proceeding (herein, an "Action") within the scope of this indemnity obligation and request that the Indemnitor(s) defend such Action with legal counsel reasonably satisfactory to the City. If the Indemnitor(s) fails to so defend the Action, the City shall have the right but not the obligation to do so with counsel ol their own choosing, with no right of approval by Indemnitor(s) and, if they do, the lndemnitor(s) shall promptly pay the City's full cost thereof, with payments made at least on a monthly basis. Notwithstanding the foregoing. the indemnity obligation under clause (i) of the first sentence of this condition shall not apply to the extent the claim arises out ofthe willful misconduct or the negligence of the City or any lndemnitee. This Agreement shall survive any final action on the Project, and shall survive and be independent oi any Project approvals, even if such Project approvals are invalidated in whole or part. 3, Entire Agreement; Amendments and Waivers' This Agreement contains the entire agreement between the City and Indemnitor(s) with respect to the subject matter set forth herein and supersedes any prior discussions, negotiations, and agreements with respect thereto. This Agreement may be amended or modified only by a written agreement executed by both Parties. No waiver of any of the terms of this Agreement shall be effective or binding unless in writing and executed by an authorized representative of the Party waiving its rights hereunder. 4. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators, successors, transferees, and assigns of the Parties. IN WITNESS WHEREOF, the parties hereto have entered into this Agreement to be effective as ofthe date first written above. "CITY" CITY OF MENIFEE, a California Municipal APPROVED AS TO FORM RUT TUCKER, LLP Attomeys for the City of M 2465/03t85E-0001 4011430 _1 d01/ 11t27 J- oated: lV4-MtU,- ?t ,2023 "INDEMNITOR" Ethanac Menifee, LLC, a Delaware limited liability company By: JP-KND2 LLC, a California limited liability company Its Manager By: DeArmey Investments, LLC, a California limited liability company Its Manager By, Katrina DeArmey Manager