EXHIBIT 10.2
------------
INDEMNIFICATION AGREEMENT
-------------------------
THIS INDEMNIFICATION AGREEMENT ("Indemnification Agreement") is made
effective as of the 5th day of May, 2004, by LAKES OF THE MEADOW VILLAGE
HOMES CONDOMINIUM NO. EIGHT MAINTENANCE ASSOCIATION, INC., a Florida
corporation not for profit (the "Association"), on behalf of itself and, to
the fullest extent permitted under applicable law, on behalf of its members
(hereinafter sometimes collectively referred to as the "Association
Parties"), and ARVIDA/JMB PARTNERS, L.P., a Delaware limited partnership
d/b/a Arvida/JMB Partners, Ltd. ("Arvida/JMB").
WHEREAS, the Association Parties and Arvida/JMB have entered into a
Settlement Agreement (the "Settlement Agreement") dated March 9, 2004
relating to the Lawsuit;
WHEREAS, pursuant to the Settlement Agreement, the Association
Parties have agreed to indemnify Arvida/JMB and its Affiliates on the terms
and conditions set forth in this Indemnification Agreement;
WHEREAS, the Association Parties desire to enter into this
Indemnification Agreement in order to complete the Settlement and pursue
their common purpose of remediation of the Condominium Units included in
the Association's condominium; and
WHEREAS, Arvida/JMB desires to enter into this Indemnification
Agreement in order to complete the Settlement and obtain the benefits of
the indemnification herein for itself and its Affiliates,
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which are hereby acknowledged, the Association Parties and
Arvida/JMB hereby agree as follows:
1. DEFINITIONS OF CERTAIN TERMS. For purposes of this
Indemnification Agreement, capitalized terms used but not otherwise defined
in this Indemnification Agreement have the same meanings ascribed to such
terms in the Settlement Agreement.
2. INDEMNIFICATION OF ARVIDA/JMB AND AFFILIATES. The Association
Parties (hereinafter sometimes collectively referred to as the
"Indemnifying Party") shall save, defend, indemnify and hold harmless
Arvida/JMB and its Affiliates (each, an "Indemnified Party" and
collectively, the "Indemnified Parties") from and against any and all
liability, loss, damage, cost, expense (including, without limitation,
reasonable attorneys' fees and expenses, whether incurred at pre-trial,
trial or appellate court) for: (a) any and all Released Claims of the
Association Parties or their respective Related Parties; (b) any and all
Subrogation Claims attributable to the Association Parties or their
respective Related Parties; (c) any breach by the Association Parties or
their respective Related Parties of a representation, warranty or covenant
made by or on behalf of the Association Parties in the Settlement Agreement
or any Related Agreement; (d) any and all claims, demands, causes of action
and other rights or remedies asserted by or on behalf of a former, current
or future owner or resident of a Condominium Unit included in the
Association's condominium, including, without limitation, claims for
alternative living expenses, storage and handling expenses, loss of use,
loss of value, loss of financing or refinancing opportunity, loss of rental
1
and loss of enjoyment of a Condominium Unit included in the Association's
condominium, personal injury or death, pain and suffering, emotional
distress, aggravation and mental anguish, arising out of or relating to (i)
any and all defects of every kind and nature (including, without
limitation, latent defects) in the design or construction of, or other
damage to, any Condominium Units included in the Association's condominium,
whether such defects or other damage previously existed, currently exists
or arises after the date of this Indemnification Agreement, or (ii) any
failure to make or undertake appropriate and/or timely remediation,
alteration or construction-related or design-related activities for any
Condominium Units included in the Association's condominium; (e) any and
all claims, demands, causes of action and other rights or remedies
(including without limitation, for personal injury or death) asserted by
any Person arising out of or relating to any remediation, alteration or
construction-related or design-related activities, including, without
limitation, any defective or negligent remediation, alteration or
construction-related or design-related activities, made or undertaken at
any time (whether before or after the date of this Indemnification
Agreement) for any Condominium Units included in the Association's
condominium; or (f) any and all claims, demands, causes of action and other
rights or remedies asserted by any Person arising out of or relating to the
past, present or future governance, operation, maintenance or
administration of the Association or any of its respective affairs or
property, including without limitation the application of the settlement
payment made by Arvida/JMB pursuant to the Settlement Agreement (all of the
foregoing matters to be indemnified against hereinafter referred to
collectively as the "Indemnified Claims" and individually as an
"Indemnified Claim"). By way of example, but without limiting the
generality of the foregoing, indemnification by the Indemnifying Party
shall apply to (I) any claim against an Indemnified Party for reimbursement
of any loss, cost, expense, award, judgment, fine, penalty or other
obligation assessed or imposed by Miami-Dade County, Florida (or any
agency, department, bureau, board, office or other sub-division thereof)
against the Association or any owner of a Condominium Unit included in the
Association's condominium and arising out of any defects or other damage to
such Condominium Unit, including any loss, penalty or other obligation
assessed or imposed against the owner of such Condominium Unit for any
failure to correct the defects cited in any Deficiency Notice for such
Condominium Unit; (II) any claim against an Indemnified Party by a former
owner of a Condominium Unit included in the Association's condominium for a
loss of market value resulting in a reduced sale price for such Condominium
Unit; (III) any claim against an Indemnified Party for alternative living
expenses or other costs and expenses incurred by an owner or resident of a
Condominium Unit included in the Association's condominium while any
remediation of such Condominium Unit occurs; and (IV) any claim against an
Indemnified Party by any Person for personal injury or death arising out of
any remediation of any Condominium Unit included in the Association's
condominium.
3. NOTICE OF INDEMNIFIED CLAIM. Arvida/JMB or other Indemnified
Party shall notify the Association of the nature of an Indemnified Claim
asserted in a lawsuit within a reasonable time after its assertion, but the
failure to so notify the Association shall not relieve the Indemnifying
Party of its obligations under this Indemnification Agreement for such
Indemnified Claim unless, and only to the extent, that such failure to
notify shall materially prejudice the Indemnifying Party in the defense of
such Indemnified Claim.
2
4. DEFENSE OF INDEMNIFIED CLAIM. The Indemnifying Party shall be
entitled to participate at its own expense in the defense or, if it so
elects within a reasonable time after receipt of notice of the assertion in
a lawsuit of an Indemnified Claim, to assume the defense of such
Indemnified Claim, in which case the defense shall be conducted by counsel
chosen by it and reasonably satisfactory to the Indemnified Party or
Indemnified Parties that are a defendant or defendants therein. In the
event that the Indemnifying Party elects to assume the defense of any such
Indemnified Claim and retain such counsel, the Indemnified Party or
Indemnified Parties that are a defendant or defendants in the lawsuit shall
bear the fees and expenses of additional counsel, if any, thereafter
retained by such Indemnified Party or Indemnified Parties. In the event
that the parties to any such lawsuit (including impleaded parties) include
the Indemnifying Party and any Indemnified Party, and such Indemnified
Party shall have been advised by counsel chosen by such Indemnified Party
that there is or may be a conflict of interest in the representation by the
same counsel of the Indemnifying Party and such Indemnified Party, the
Indemnifying Party shall not have the right to assume the defense of such
Indemnified Claim on behalf of such Indemnified Party, and the Indemnifying
Party will reimburse such Indemnified Party for the reasonable fees and
expenses of any counsel retained by such Indemnified Party. In the event
that the Indemnifying Party shall fail or refuse to participate in the
defense or assume the defense of any Indemnified Claim within a reasonable
time after notice of its assertion, the Indemnified Party or Indemnified
Parties may defend or settle such Indemnified Claim, and in such event, the
amount of any judgment or settlement and any fees and expenses, including,
without limitation, attorneys' fees and expenses, incurred by the
Indemnified Party or Indemnified Parties for such Indemnified Claim shall
conclusively be deemed to be reasonable amounts incurred for such
Indemnified Claim and subject to indemnification hereunder.
5. ASSESSMENT OF, MEMBERS TO PAY FOR INDEMNIFICATION. The
Association covenants and agrees to assess its members, to the extent
necessary and to the extent permitted by applicable law, in order to enable
the Association to satisfy any and all obligations of the Indemnifying
Party under this Indemnification Agreement, including, without limitation,
the payment to an Indemnified Party of any Indemnified Claim. The
Association Parties agree that an Indemnified Party shall be entitled to
specific performance of the provisions of this Paragraph 5.
6. RIGHT TO DEAL WITH THE ASSOCIATION ONLY. In all matters
relating to an Indemnified Claim, an Indemnified Party is entitled to deal
exclusively with the Association as the Indemnifying Party, whether
providing notice of an Indemnified Claim, seeking payment for an
Indemnified Claim, or otherwise, and nothing in this Indemnification
Agreement shall require any Indemnified Party to provide any notice to,
seek payment from or otherwise deal with any members of the Association in
order to have any Indemnified Claim paid in full or otherwise have the
obligations of the Indemnifying Party under this Indemnification Agreement
performed, PROVIDED, HOWEVER, that nothing in this Paragraph 6 shall limit
or adversely affect the rights of an Indemnified Party, or the obligations
of the Association and its members, under Paragraph 5 of this
Indemnification Agreement. In no event shall an Indemnified Party be
entitled to proceed against one or some (but less than all) members of the
Association for an Indemnified Claim without having previously proceeded,
or simultaneously proceeding, against the Association for such Indemnified
Claim.
7. CERTAIN CONDITIONS. This Settlement Agreement shall expire on
its tenth anniversary and thereafter be of no force or effect, except with
respect to Indemnified Claims pending prior to such tenth anniversary, for
which this Indemnification Agreement shall remain in full force and effect.
In addition, the Indemnifying Party's indemnification obligations hereunder
(including the obligation to pay for the defense of an Indemnified Claim)
shall be limited, in the aggregate, to the Settlement Amount.
3
8. OTHER PROVISIONS. Paragraphs 13 (Governing Laws), 14 (Time of
Essence), 15 (Assignment of Settlement Agreement and Related Agreements),
17 (No Admission of Liability), 18 (Use of the Settlement Agreement), 19
(Drafting of Agreements), 20 (Entire Agreement), 21 (Independent Judgment),
22 (Binding Agreement), 24 (Notices), 25 (Counterparts), 26 (Further
Assurances), 27 (Waiver), 28 (Prevailing Party Attorneys' Fees and Costs),
29 (Limitation of Liability), 30 (Survivability), 31 (Provisions
Severable), and 32 (Certain Rules of Construction) of the Settlement
Agreement are hereby incorporated herein by reference as though fully set
forth herein, and references in those paragraphs to "Settlement Agreement"
shall be deemed herein to be references to this Indemnification Agreement
to the extent the same may be necessary or appropriate for proper
construction.
[ SIGNATURE PAGE TO FOLLOW ]
4
IN WITNESS WHEREOF, the Association Parties and Arvida/JMB have
executed this Indemnification Agreement effective as of the date first
written above.
ASSOCIATION PARTIES:
LAKES OF THE MEADOW VILLAGE HOMES
CONDOMINIUM NO. EIGHT MAINTENANCE
ASSOCIATION, INC.,
a Florida corporation not for profit,
on its behalf and, to the fullest
extent permitted under applicable law,
on behalf of its members.
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name:Xxxxx Xxxxxxx
Title: Secretary/Treasurer
ARVIDA/JMB:
ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership
d/b/a Arvida/JMB Partners, Ltd.
By: Arvida/JMB Managers, Inc.
General Partner
By: /s/ Xxxx Xxxxxxx
------------------------------
Name:Xxxx Xxxxxxx
Title: President
5
STATE OF FLORIDA )
) SS.
COUNTY OF MIAMI-DADE )
BEFORE ME, the undersigned, a Notary Public, duly commissioned,
personally appeared XXXXX XXXXXXX, in his or her capacity as SEC./TREAS.,
of LAKES OF THE MEADOW VILLAGE HOMES CONDOMINIUM NO. EIGHT MAINTENANCE
ASSOCIATION, INC., who is personally known to me or has produced a Fla.
Drivers Lic. as identification, and acknowledged the execution of the
foregoing instrument to be his or her free and voluntary act and deed in
his or her capacity as aforesaid and the free and voluntary act and deed of
said corporation, for the uses and purposes therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and seal at the
County and State set forth above, this 5th day of May, 2004.
/s/ Xxxx Xxxxx
--------------------
Notary Public
Xxxx Xxxxx
--------------------
Printed Notary Name
"OFFICIAL SEAL"
XXXX XXXXX
NOTARY PUBLIC - STATE OF FLORIDA
MY COMMISSION EXPIRES FEBRUARY 17, 0000
XXXXXXXXXX #XX000000
XXXXX XX Xxxxxxxx )
) SS.
COUNTY OF Xxxx )
BEFORE ME, the undersigned, a Notary Public, duly commissioned,
personally appeared Xxxx Xxxxxxx, in his or her capacity as President of
ARVIDA/JMB MANAGERS, INC., the General Partner of ARVIDA/JMB PARTNERS,
L.P., who is personally known to me, and acknowledged the execution of the
foregoing instrument to be his or her free and voluntary act and deed in
his or her capacity as aforesaid and the free and voluntary act and deed of
said corporation, as general partner aforesaid, for the uses and purposes
therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and seal at the
County and State set forth above, this 29th day of April, 2004.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Notary Public
Xxxxxxx X. Xxxxxxx
------------------------------
Printed Notary Name
"OFFICIAL SEAL"
XXXXXXX X. XXXXXXX
Notary Public, State of Illinois
My Commission Expires 02/28/05
