HomeMy WebLinkAboutContracts & Agreements_60-1999_CCv0001.pdf JOINT DEFENSE AGREEMENT
This Joint Defense Agreement is made and entered into this 15thday ofJme , 1999, by,and
between CITIES PAVILION PARTNERS,LLC,a California limited liability' company,(-"*CP'P';)and
the CITY OF REDLANDS,a municipal corporation,(the"City")with regard to the following facts:
WHEREAS,on October 21, 1997,the City entered into a Development Agreement with CPP
which provided in Paragraph 8.4 as follows: C�
"Developer [Cities Pavilion] shall defend, indemnify and hold harmless City, its
elected officials,officers,employees and agents from and against any and all claims,
losses,damages,causes of action,injuries and actions,including costs and attorney's
fees, arising out of, or in connection with, any negligent act or omissions or willful
misconduct of Developer,its officers,employees,agents and licensees or arising out
of, or in connection with, City and Developer's entry into and execution of this
Development Agreement."
WHEREAS, on April 6, 1998, the City and CPP modified the Development Agreement by
canceling its application to certain real property; and the Modification and Correction of Legal
Description to Development Agreement memorializing that modification, restated the indemnity
provided as follows:
"In accordance with the provisions of Section 8.4 of the Development Agreement,
Developer shall defend, indemnify and hold harmless City, its elected officials,
officers,employees and agents from and against any and all claims,losses,damages,
causes of action, injuries and actions, including costs and attorneys' fees,arising out
of, or in connection with, City and Developer's execution of this Modification and
Correction of Legal Description to Development Agreement."
WHEREAS,on or about September 3, 1998,the City was served with two civil actions filed
in the San Bernardino County Superior Court and denominated as follows:
Majestic Realty Co,, a California corporation and Redlands Joint Venture LLC, a
California limited liability company, Petitioners, v. City of Redlands, a municipal
corporation and Does I through 50 inclusive, Respondents, Timberlake Group
International, Inc. a California corporation, Cities Pavillion Partners, a California
limited liability corporation, Cities Pavilion Partners, a California limited liability
corporation,and Does 51 through 99,Real Parties in Interest,San Bernardino County
Superior Court Case No. SCV 49347.
Majestic Realty Co., a California corporation and Redlands Joint Venture LLC. a
California limited liability company, Petitioners and Plaintiffs, v. City of Redlands,
a municipal corporation, City Council of the City ofRedlands and Does I through
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50 inclusive, Respondents and Defendants, Timberlake Group International, Inc. a
California corporation, Cities Pavillion Partners, a California limited liability
corporation, Cities Pavilion Partners, a California limited liability corporation, and
Does 53 through 99,Real Parties in Interest, San Bernardino County Superior Court
Case No. SCV 51027.
WHEREAS,on or about February 24, 1999,the City was served with a civil action filed in
San Bernardino County Superior Court and denominated as follows:
Redlands Joint Venture, LLC, a California limited liability company v. City of Redlands,
a municipal corporation,City Council of the City of Redlands,Planning Commission of the
City of Redlands and Does t through 50, inclusive, Respondents, Timberlake Group
International, Inc. a California corporation, Cities Pavillion Partners, a California limited
liability corporation,Cities Pavilion Partners,a California limited liability corporation,and
Does 51 through 99, Real Parties in Interest, San Bernardino County Superior Court Case
No. SCV 54994.
WHEREAS, the City has notified CPP of such actions and requested CPP to defend and
indemnify the City as provided in the Development Agreement;
NOW, THEREFORE, the parties agree as follows:
1.0 CPP agrees that the actions each include causes of action for which the City is entitled
to defense at the expense of CPP. Case No. 51027 and Case No. 54994 include causes of action
alleged against the CITY COUNCIL OF THE CITY OF REDLANDS and THE PLANNING
COMMISSION OF THE CITY OF REDLANDS and CPP agrees that the City Council and the
Planning Commission are also entitled to defense at the expense of CPP. (Hereinafter, references
to the"City"shall include the City Council and Planning Commission).
1.1 The City agrees that the defense of the City in such actions may be undertaken by the
City Attorney;provided the City shall have no obligation to undertake such a defense. CPP may,
upon written notice to the City Attorney, elect to appoint other attorneys to conduct the defense on
behalf of the City,provided that such other attorneys shall be approved by the City.
1.2 CPP agrees that it will appear in each of the actions and will defend itself in the actions
as well as the City.
2.0 CPP will indemnify and hold the City harmless from any judgment rendered against the
City in any or all of the actions arising from,or related in any way to,the Development Agreement,
its Modification or the entitlements that are the subject of Case No. 54994.
11 CPP will post either(a)a financial guarantee bond in the face amount of StOO,000,(b)
a letter of credit in the face amount of S 100,000, or(c) a cash deposit, pursuant to a City-approved
escrow agreement, in a federally insured financial institution in the amount of S 100,000,which shall
secure the City against any failure by CPP to pay any judgment rendered against the City. Such
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financial guarantee bond shall provide that payment by the surety shall be made if judgment is
rendered against the City and payment by CPP is not made to the City within 15 days of a written
demand by the City for such payment. Such financial guarantee bond shall be exonerated by the City
after entry of judgments in favor of the City and against the Petitioners in both of the actions,
dismissal of both ofthe actions,(and all applicable appeal periods have expired)or payment by CPP
of the demand for payment by the City pursuant to a settlement or judgment. Exoneration of the
financial guarantee bond shall not affect the obligations of CPP under the Development Agreement
or Modification.
3.0 The City and CPP will jointly defend the actions and in so doing, counsel for the City
and CPP will communicate with each other. It is intended by the parties that all such
communications are covered by the attorney-client privilege. Further,from time to time,employees
of members of the City Council or its boards or commissions may communicate with counsel for
CPP in the presence ofthe City Attorney,and/or persons affiliated with CPP may communicate with
CPP's counsel in front ofthe City attorney. All such communications are intended to be for the joint
defense of the actions and are intended by the par-ties to be covered by the attorney-client privilege.
4.0 This Agreement is not intended to modify or expand the obligations of either of the
parties under the Development Agreement or Modification but to provide a memorandum of the
agreement of the parties as to how those obligations are to be carried out.
5.0 In the event that the pleadings filed by the Petitioners in either of the actions should be
amended in any material respect,the CPP and the City shall enter into a further written memorandum
of their agreement related to such amended pleadings.
6.0 In the event any action is commenced to enforce or interpret the terms or conditions of
this Agreement,the prevailing party in such action shall be entitled to recover in addition to its costs
and other relief, its reasonable attorneys' fees.
7.0 This Agreement represents the entire Agreement of the parties hereto as to the matters
contained herein. Any modification of this Agreement will be effective only if it is in writing and
signed by the parties hereto.
8.0 This Agreement shall not be assigned without the prior written consent of the City. Any
assignment, or attempted assignment, without such prior consent shall be null and void and, at the
option ofthe City,result in the immediate termination of this Agreement.
9.0 This Agreement shall be governed by and construed in accordance with the laws ofthe
State of California.
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IN WITNESS WHEREOF,the parties have executed this Joint Defense Agreement as of the
date first above written.
CITIES PAVILION PARTNERS, LLC CITY OF REDLANDS, a municipal
a California limited liability company corporation
By: TIMBERLAKE GROUP INTERNATIONAL,
INC., a California corporation
Its Managing Member By
,' E. Cu ham, ayor
By 3all,
H. T. Lindsay Ale: der, Prsident ATTEST:
�* —! zer, iY Clerk
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