HomeMy WebLinkAboutAMAZON.COM SERVICES LLC, OCR LAND, LLC, OC MEDIA TOWER, L.P.hNSU MCE NOT REQUIRED N-2020-167
°C11 WORK PIIAY PROCEED
0' CLERK OF COUNCIL
YP.
DEFENSE AND INDEMNIFICATION AGREEMENT
This Defense and Indemnification Agreement ("Agreement') is made and entered into
this 5L day of , 2020, by and between Amazon.com Services LLC, a
Delaware limited liability company ("Amazon") and OCR Land, LLC, a California limited
liability company and OC Media Tower, L.P., a California limited partnership (collectively,
"Property Owner"), collectively referred to in this Agreement as "Applicant", and the City of
Santa Ana, a charter city and municipal corporation organized and existing under the
Constitution and laws of the State of California ("City"). City and Applicant are sometimes
collectively referred to in this Agreement as the "Parties" and individually as a "Party".
RECITALS
A. The Applicant has submitted formal applications ("Amazon Project Application") to
the City for the approval of a distribution facility, including a warehouse building and
delivery vehicle parking, to be located at 625 North Grand Avenue, as more
particularly described in the legal description set forth in Exhibit "A" attached hereto
and incorporated herein ("Property" or "Project').
B. City is processing the Amazon Project Application under the current zoning and
Environmental Impact Report ("EIR") completed for Specific Development No. 21
project area (SD-21).
C. To move forward with the processing of the Project, the Parties desire to enter
into this Agreement. Amazon, on the one hand, and Property Owner, on the other
hand, shall be jointly and severally responsible for all obligations of the Applicant
pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the mutual and respective promises, and
subject to the terms and conditions hereinafter set forth, the Parties agree as follows:
1. Incomoration of Recitals. The Parties incorporate the Recitals in this Agreement
as if fully set forth herein.
2. Indemnification and Defense. Applicant shall indemnify, protect, defend and
hold the City and/or any of its officials, officers, employees, agents, departments, agencies, and
instrumentalities thereof (together with the City, collectively, the "City Parties"), harmless from
any and all claims, demands, lawsuits, writs of mandamus, other proceedings (whether legal,
equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute
resolution procedures (including, but not limited to arbitrations, mediations, and such other
procedures), judgments, orders, and decisions (collectively "Claims"), brought against the City
Parties, that challenge, attack, or seek to modify, set aside, void, or annul, any action of, or any
permit or approval related to the Amazon Project Application issued by the City Parties for or
concerning the Project, whether such Claims are brought under the Ralph M. Brown Act, the
California Environmental Quality Act, the Planning and Zoning Law, the Subdivision Map Act,
Code of Civil Procedure sections 1085 or 1094.5, or any other federal, state or local constitution,
1
P651-001 - 3919947.1
statute, law, ordinance, charter, rule, regulation, or any decision of a court of competent
jurisdiction. Applicant obligations under this section are subject to the following:
a. City shall promptly notify Applicant of any Claims brought and City shall
cooperate with Applicant in the defense of the Claims.
b. Applicant's liability under this section shall not apply to any liabilities,
losses, claims, actions, causes of action or demands arising from a City
Party's negligence, willful misconduct or criminal acts, or to the extent
that City fails to provide notice as set forth in subsection (a) above or fails
to follow its own procedures for the processing of the Amazon Project
Application.
C. City shall cooperate with Applicant's defense against any such Claims,
including providing reasonable access to information, evidence, and
potential witnesses necessary to defend against such Claims.
d. It is expressly agreed that Applicant shall pay for the defense of any Claims
brought against City, that the City shall have the right to approve, which
approval will not be unreasonably withheld, conditioned or delayed, the
legal counsel providing the City's defense, and that Applicant shall
reimburse the City for any costs and expenses directly and necessarily
incurred by the City in the course of the defense. However, nothing herein
shall prohibit the City from participating in the defense of any litigation by
its own counsel at its own cost and expense.
e. Applicant shall have the right to settle or compromise any Claims arising
hereunder; provided, however, that if such settlement or compromise
requires payment of money by City, Applicant shall first obtain the
consent of City, which shall not be unreasonably withheld, conditioned
or delayed.
3. Term. This Agreement shall automatically expire on the second anniversary of
the date of this Agreement; provided, however that, if on that date, any matter is pending for
which indemnity is required under this Agreement, then this Agreement shall automatically
expire on the date of completion of that matter. Thereafter, neither Party shall have any further
rights or obligations under this Agreement.
4. Counsel. The Parties represent that they have consulted or have had the
opportunity to consult legal counsel prior to the execution of this Agreement and have executed
this Agreement with full knowledge of its meaning and effect.
5. Bindine. The Parties agree that the terms, conditions and provisions of this
Agreement are binding upon, and shall inure to the benefit of, all assigns and successors in interest
of each of the Parties hereto. If during the term of this Agreement, Property Owner transfers
ownership of the Property to a new owner, all benefits to and obligations of Property Owner
►0A
P651-001 -- 3919947.1
under this Agreement shall automatically transfer to the new owner and thereafter, the term
Property Owner shall be deemed to mean such new owner. Also in that event, Property Owner
shall automatically be released as a Party to the Agreement and no longer be entitled to the
benefits of or be subject to any obligations under this Agreement. If ownership of the Property is
transferred to Amazon, thereafter, Amazon shall be the sole Party which is entitled to the
benefits of and which is subject to the obligations of the Applicant under this Agreement.
6. Additional Acts. The Parties agree to perform any acts and execute any
documents consistent with the terms and conditions of this Agreement, which may be needed,
desired or required to effectuate the terms, conditions and provisions hereof.
7. Entire Agreement. Except as otherwise provided for herein, this Agreement
constitutes the entire and only agreement between the Parties with reference to the subject matter
hereof and supersedes any prior representation or agreement, oral or written, with respect thereto.
The Parties further agree that no representation, warranty, agreement or covenant has been made
with regard to this Agreement, except as expressly recited herein and that in entering into this
Agreement, no Party is relying upon any representation, warranty, agreement or covenant not
expressly set forth herein.
8. No Admissions. Each Party agrees that this Agreement is made in resolution of
potentially disputed claims, and that by entering into and performing the obligations of this
Agreement, no party concedes or admits the truth of any claim or any fact and the execution and
performance of this Agreement shall not be construed as an admission by any Party.
9. Governing Law. This Agreement has been executed and delivered in the State of
California and the validity, interpretation, performance, and enforcement of any of the clauses of
this Agreement shall be determined and governed by the laws of the State of California. Both
parties further agree that Orange County, California, shall be the venue for any action or
proceeding that may be brought or arise out of, in connection with or by reason of this
Agreement.
10. Mutual Drafting. The Parties agree that this Agreement shall not be construed in
favor of, or against, any Party by reason of the extent to which any Party or its counsel
participated in the drafting of this Agreement.
11. Amendment. This Agreement can be amended only by a writing signed by each of
the Parties hereto.
12. Independent Parties. None of the terms, provisions, or conditions of this
Agreement shall be deemed to create a partnership between the Parties hereto and any of their
heirs, successors, or assigns, nor shall such terms, provisions or conditions cause them to be
considered joint ventures or members of any joint enterprise.
13. Notice. Any notice, tender, demand, delivery, or other communication pursuant
to this Agreement shall be in writing and shall be deemed to be properly given if delivered in
person, sent by reputable overnight mail delivery service, mailed by first class or certified mail,
P651-001 - 3919947.1
postage prepaid, or sent by facsimile or other telegraphic or electronic communication in the
manner provided in this Section, to the following persons:
To City: City Clerk
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Facsimile: (714) 647-6956
With courtesy copies to:
City of Santa Ana
Planning Department
20 Civic Center Plaza (M-20)
Santa Ana, CA 92702
Facsimile:
and City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
Facsimile: (714) 647-6515
Property Owner: OCR Land, LLC
1103 N. Broadway
Santa Ana, CA 92701
and OC Media Tower, L.P.
1103 N. Broadway
Santa Ana, CA 92701
With a copy to: John Ramirez
Rutan & Tucker, LLP
611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626-1931
Facsimile: (714) 546-9035
Amazon: c/o Amazon.com, Inc.
Attn: Real Estate Manager (NA Ops: DUR2)
Attn: General Counsel (Real Estate (NA Ops): DUR2)
Attn: NA Ops Asset Management (DUR2)
Each with an address of-
4 10 Terry Ave. N
Seattle, WA 98109-5210
Telephone: (206) 266-1000
P651-001 -- 3919947.1
With copies to: naops-propmgmt@amazon.com;
opsrelegalnotice@am azon.com;
na-realestate@amazon.com; naops-rent@amazon.com
using the subject line —Re: DUR2
A party may change its address by giving notice in writing to the other party. Thereafter
any notice, tender, demand, delivery, or other communication shall be addressed and transmitted
to the new address. If personally delivered, such communication shall be effective on receipt. If
sent by overnight mail delivery service or first class, certified mail, return receipt requested, such
communication shall be effective on receipt, rejection or inability to deliver. If sent by facsimile,
such communication shall be effective or deemed to have been given twenty-four (24) hours
after the time set forth on the transmission report issued by the transmitting facsimile machine,
addressed as set forth above. For purposes of calculating these time frames, weekends, federal,
state, County or City holidays shall be excluded.
14. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute the same Agreement.
Electronic signatures will have the same force and effect as original signatures.
15. Authority. Each undersigned represents and warrants that its signature herein
below has the power, authority and right to bind their respective parties to each of the terms of
this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees,
for any injuries or damages to City in the event that such authority or power is not, in fact, held
by the signatory or is withdrawn.
16. Jury Trial Waiver. APPLICANT AND CITY WAIVE ANY RIGHT TO TRIAL
BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN
APPLICANT AND CITY ARISING OUT OF THIS AGREEMENT.
17. Limitation of Liability. Any liability of Applicant under this Agreement shall be
limited solely to its interest in the Project, and in no event will any recourse be had to any other
property or assets of Applicant.
(Signatures onfollowing page)
P651-0DI - 3919947..1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and
year first above written.
ATTEST
I^;i13,
Daisy Gomez
City Clerk
Sonia R. Carvalho
City Attorney
By:,
PO. Hodge
ssistant City Attorney
RECOMMENDED FOF APPROVAL
0
Minh Thai
Executive Director
Planning and Building Agency
CITY OF SANTA ANA,
a charter city and municipal
corporation
istine Ridge
City Manager
AMAZON.COM SERVICES LLC
a Delaware limited liability company
Name: Joshua Abells
Title: Authorized Signatory
a California
P651-001-391994Z1
EXHIBIT A
LEGAL DESCRIPTION
[Attached behind this page]
P651-001-- 39199471
EXHIBIT A
LEGAL DESCRIPTION
PARCEL 1
THAT CERTAIN PARCEL OF LAND IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING A PORTION
OF PARCELS 1, 2 AND 3 AS SHOWN ON LOT LINE ADJUSTMENT NO. 2014-02, RECORDED SEPTEMBER 18, 2014 AS
INSTRUMENT NO. 20140003791090F OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
The POINT OF BEGINNING (POD) BEING THE MOST NORTHERLY CORNER OF SAID PARCEL 1, SAID CORNER BEING ON THE
SOUTHERLY BOUNDARY OF THE INTERSTATE 5 RIGHT OF WAY AS DESCRIBED ON PARCEL MAP NO. 90-377 RECORDED ON
3.27.1992 IN BOOK 270, PAGES 7-11 OF PARCEL MAPS PER INSTRUMENT 92-188217 OF OFFICIAL RECORDS OF SAID COUNTY;
THENCE ALONG SAID SOUTHERLY BOUNDARY AND THE NORTHERLY BOUNDARY OF SAID PARCEL 1 THE FOLLOWING THREE
(3) COURSES: THENCE SOUTH 67014'33" EAST 158.94 FEET, THENCE SOUTH 32'27'35" EAST 35.99 FEET, THENCE SOUTH
601 EAST 443.98 FEETTO THE NORTHERLY RIGHT OF WAY LINE OF FRUIT STREET (6) FEET WIDE) AS DESCRIBED ON
SAID PARCEL MAP NO. 90-377; THENCE ALONG SAID NORTHERLY RIGHT OF WAY UNE SOUTH 89"51'31" WEST 114.33 FEET,
THENCE SOUTH 0"05'31" WEST 851.07 FEET TO THE NORTHERLY RIGHT OF WAY OF SIXTH STREET )60 FEET WIDE) AS
DESCRIBED ON SAID PARCEL MAP NO. 90-377; THENCE ALONG SAID NORTHERLY RIGHT OF WAY OF SIXTH STREET SOUTH
89052'32" WEST 184.57 FEET; THENCE SOUTH O'0545" WEST 60.00 FEET; THENCE SOUTH 89052'32" WEST 116.00 FEET;
THENCE SOUTH 0"0545" WEST 178.46 FEET; THENCE SOUTH 89"52'32" WEST 10.50 FEET; THENCE SOUTH 0'05'45" WEST
142.71 FEET; THENCE SOUTH 89052'32" WEST 130.84 FEET; THENCE SOUTH 0"13'44" WEST 95.14 FEET; THENCE SOUTH
89"52'32" WEST 273.28 FEET TO THE EASTERLY RIGHT OF WAY LINE OF GRAND AVENUE AS SHOWN ON SAID PARCEL MAP
NO. 90-377; THENCE ALONG SAID EASTERLY RIGHT OF WAY LINE NORTH G"00'15" WEST 446.31 FEET; THENCE NORTH
0000'00" EAST 30.00 FEET; THENCE NORTH 89"52'32" EAST 25.06 FEET TO THE BEGINNING OF A NON -TANGENT CURVE
CONCAVE NORTHEASTERLY WITH A RADIUS OF 25.00 FEET A RADIAL BEARING FROM SAID BEGINNING BEARS NORTH
0007'28" WEST; THENCE NORTHWEST AND NORTH 39.32 FEET THROUGH A CENTRAL ANGLE OF 90"07'28" WEST; THENCE
NORTH 0"00'OO" EAST 107.13 FEET; THENCE SOUTH 89059'53" EAST 53.82 FEET; THENCE NORTH O"00'00 EAST 179.37 FEET;
THENCE NORTH 89046'02" EAST 123.61 FEET; THENCE NORTH 0005'27" EAST 78.60 FEET; THENCE NORTH 89053'36" EAST
161.71 FEET; THENCE NORTH O006'23" WEST 243.81 FEET; THENCE SOUTH 89-51'31" WEST 115.99 FEET; THENCE NORTH
0"08'29" EAST 154.78 FEETTO THE SOUTHERLY RIGHT OF WAY OF FRUIT STREET AS DESCRIBED ON SAID PARCEL MAP NO.
90-377 AND TO A NON -TANGENT CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 63.00 FEET AND TO A POINT
HEREIN AFTER REFFERED TO AS POINT "A", A RADIAL BEARING TO SAID POINT SEARS SOUTH 23014'21" WEST; THENCE
SOUTHEAST ALONG SAID RIGHT OF WAY AND ALONG SAID CURVE 75.44 FEET THROUGH A CENTRAL ANGLE OF 23'08'06"
EAST TO A POINTOF REVERSE CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 47.00 FEET A RA01 AL BEARING FROM
SAID POINT OF REVERSE CURVE BEARS NORTH 46022'27" EAST; THENCE SOUTHEAST, EAST, NORTH, AND NORTH WEST ALONG
SAID RIGHT OF WAY AND SAID CURVE 193.74 FEET THROUGH A CENTRAL ANGLE OF 236010'04" EAST; THENCE NORTH
0"00'34" EAST 310.51 FEETTO THE POINT OF BEGINNING (POD).
U PANATTON I
Date: October 2, 2020
From: Jacob LeBlanc
To: Mike Harrah
Caribou Industries
1103 N. Broadway
Santa Ana, CA 9270
Subject:
Defense and Indemnification Agreement
Mike,
Per our conversation, enclosed are the following for 625 N. Grand Avenue, Santa Ana:
• Defense and Indemnification Agreement — Signed by Amazon
When you get a chance, please sign the agreement where tagged and route the agreement
for signature with the City of Santa Ana. Once the agreement is fully signed, please
forward a fully wet signed copy to my attention at the below address.
If you have any questions, please do not hesitate to contact me at (949) 296-2943 or
jleblanc@panattoni.com.
Thank you,
Jacob LeBlanc
Southern California — Local Partner
Panattoni Development Company, Inc.
2442 Dupont Drive, Irvine, CA 92612