EXHIBIT 10.4
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INDEMNIFICATION AGREEMENT
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THIS INDEMNIFICATION AGREEMENT ("Indemnification Agreement") is made
effective as of this 8th day of June, 2004, by LAKES OF THE MEADOW VILLAGE
HOMES CONDOMINIUM NO. ONE MAINTENANCE ASSOCIATION, INC., a Florida
corporation not for profit (the "Association"), on behalf of itself and its
members, and ARVIDA/JMB PARTNERS, L. P,, a Delaware limited partnership
d/b/a Arvida/JMB Partners, Ltd. ("Arvida/JMB").
WHEREAS, the Association, on behalf of itself and its members,
Arvida/JMB and certain other Associations, on behalf of themselves and
their members, have entered into a Settlement Agreement (the "Settlement
Agreement") dated February 3, 2004 relating to the Lawsuit;
WHEREAS, pursuant to the Settlement Agreement, the Association, on
behalf of itself and its members, has agreed to indemnify Arvida/JMB and
its Affiliates on the terms and conditions set forth in this
Indemnification Agreement;
WHEREAS, the Association desires to enter into this Indemnification
Agreement, on behalf of itself and its members, in order to complete the
Settlement and pursue the 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, and described in the
Settlement Agreement, the Association, on behalf of itself and its members,
and Arvida/JMB hereby agree as follows:
1. DEFINITION OF CERTAIN TERMS. For purposes of this
Indemnification Agreement, capitalized terms used but not otherwise defined
in this Indemnification Agreement have the same definitions ascribed to
such terms in the Settlement Agreement.
2. INDEMNIFICATION OF ARVIDA/JMB. The Association, on behalf of
itself and its members (hereinafter 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 investigating any
threatened claim, at pre-trial, trial or appellate court) for: (a) any and
all Released Claims of the Association, its members or their Related
Parties; (b) any and all Subrogation Claims attributable to the
Association, its members or their respective Related Parties; (c) any
breach by the Association or its members of a representation, warranty or
covenant made by or on behalf of the Association or its members 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 for personal injury or death
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(which shall include, without limitation, claims for emotional distress,
pain and suffering, 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 arise 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, PROVIDED, HOWEVER, that such indemnification against a claim
for personal injury or death shall only apply to such a claim asserted in a
lawsuit filed after December 31, 2004; (e) any and all other 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, and loss of use, loss of value, loss of financing or refinancing
opportunity, loss of rental and loss of enjoyment of a Condominium Unit in
the Association's condominium, 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 arise 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; (f) 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 (g) 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,
any other Village Homes condominium association or any of their 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 subdivision thereof)
against the Association or any owner of a Condominium Unit included in the
Association's condominium and arising out of any defects in 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.
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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.
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, on behalf of itself and its members, agrees that an
Indemnified Party shall be entitled to specific performance of the
provisions of this Paragraph 5. In order to secure the Association's
assessment obligation as aforesaid, and in addition to the specific
performance remedy stated above, the Association hereby assigns to
Arvida/JMB (on behalf of itself and all other Indemnified Parties) the
Association's right, duty and authority to levy assessments as aforesaid,
as well as the right to record and enforce the lien for same as set forth
in the Association's Declaration of Condominium and in Florida Statute
718.116(5). In the event the Association has insurance coverage for an
Indemnified Claim, the Association agrees to assign to the Indemnified
Party or Indemnified Parties the proceeds (and any and all rights thereto)
of such insurance coverage.
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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 Arvida/JMB (on behalf of itself and all
other Indemnified Parties) or the obligations of the Association and its
members under Paragraph 5 of this Indemnification Agreement.
7. OTHER PROVISIONS. Paragraphs 14 (Governing Laws), 16 (Time of
Essence), 17 (Assignment of Settlement Agreement and Related Agreements),
19 (No Admission of Liability), 20 (Use the of Settlement Agreement), 21
(Drafting of Agreements), 22 (Entire Agreement), 23 (Independent Judgment),
24 (Binding Agreement), 25 (Headings), 26 (Notices), 27 (Counterparts), 28
(Further Assurances), 29 (Waiver), 30 (Prevailing Party Attorneys' Fees and
Costs), 31 (Limitation of Liability), 32 (Survivability), 33 (Provisions
Severable) and 34 (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)
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IN WITNESS WHEREOF, the Association and Arvida/JMB have executed this
Indemnification Agreement effective as of the date first written above.
ASSOCIATION:
LAKES OF THE MEADOW VILLAGE HOMES
CONDOMINIUM NO. ONE MAINTENANCE
ASSOCIATION, INC.,
a Florida corporation not for profit,
on its behalf and on behalf
of its members
By: /s/ Xxxxxx Cabezes
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Name: Xxxxxx Cabezes
Title: Pres.
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
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Name: Xxxx Xxxxxxx
Title: President
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STATE OF FLORIDA )
) SS.
COUNTY OF MIAMI-DADE )
BEFORE ME, the undersigned, a Notary Public, duly commissioned,
personally appeared Xxxxxx Cabezes in his or her capacity as President of
LAKES OF THE MEADOW VILLAGE HOMES CONDOMINIUM NO. ONE MAINTENANCE
ASSOCIATION, INC., who is personally known to me or has produced __________
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 24th day of May 2004.
/s/ Xxxxx X. Xxxx
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Notary Public
Xxxxx X. Xxxx
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Printed Notary Name
OFFICIAL NOTARY SEAL
XXXXX X. XXXX
NOTARY PUBLIC STATE OF FLORIDA
COMMISSION NO. DD180754
MY COMMISSION EXP. APR. 8, 0000
XXXXX XX XXXXXXXX )
) SS.
COUNTY OF XXXX )
BEFORE ME, the undersigned, a Notary Public, duly commissioned,
personally appeared XXXX XXXXXXX, in his 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 free and voluntary act and deed in his
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 21st day of May 2004.
/s/ Xxxxxxx X. Xxxxxxx
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Notary Public
Xxxxxxx X. Xxxxxxx
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Printed Notary Name
"OFFICIAL SEAL"
XXXXXXX X. XXXXXXX
Notary Public, State of Illinois
My Commission Expires 02/28/05
SCHEDULE TO EXHIBIT 10.4
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In addition to the foregoing Indemnification Agreement, the
Partnership also entered in substantially identical Indemnification
Agreements as follows:
1) Indemnification Agreement by Lakes of the Meadow Village Homes
Condominium No. Two Maintenance Association, Inc., on behalf of
itself and its members, and Arvida/JMB Partners, L.P., dated as
of June 8, 2004.
2) Indemnification Agreement by Lakes of the Meadow Village Homes
Condominium No. Three Maintenance Association, Inc., on behalf
of itself and its members, and Arvida/JMB Partners, L.P., dated
as of June 8, 2004.
3) Indemnification Agreement by Lakes of the Meadow Village Homes
Condominium No. Four Maintenance Association, Inc., on behalf
of itself and its members, and Arvida/JMB Partners, L.P., dated
as of June 8, 2004.
4) Indemnification Agreement by Lakes of the Meadow Village Homes
Condominium No. Five Maintenance Association, Inc., on behalf
of itself and its members, and Arvida/JMB Partners, L.P., dated
as of June 8, 2004.
5) Indemnification Agreement by Lakes of the Meadow Village Homes
Condominium No. Six Maintenance Association, Inc., on behalf of
itself and its members, and Arvida/JMB Partners, L.P., dated as
of June 8, 2004.
6) Indemnification Agreement by Lakes of the Meadow Village Homes
Condominium No. Seven Maintenance Association, Inc., on behalf
of itself and its members, and Arvida/JMB Partners, L.P., dated
as of June 8, 2004.
7) Indemnification Agreement by Lakes of the Meadow Village Homes
Condominium No. Nine Maintenance Association, Inc., on behalf
of itself and its members, and Arvida/JMB Partners, L.P., dated
as of June 8, 2004.
