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HomeMy WebLinkAboutC-2641INDEMNITY AGREEMENT This Indemnity Agreement ( "Agreement ") is made and entered into as of the � Aday of June, 2011 by and between the CITY OF ARCADIA, a Charter City and Municipal Corporation (the "City ") on one hand and on the other hand, WESTFIELD, LLC, a Delaware Limited Liability Company ( "Westfield "). The City and Westfield shall be referred to herein each individually as a "Party" and collectively as the "Parties." RECITALS WHEREAS, Santa Anita Fashion Park LP is the owner of the existing Robinsons -May building and property located at the Westfield Santa Anita shopping center, 400 South Baldwin Avenue, in the City of Arcadia ( "Center "), and Westfield, LLC is the development manager for the Center; WHEREAS, the Center has numerous tenants and there are changes in tenants from time to time as part of the regular operations of a shopping center; WHEREAS, the existing Robinsons -May building has been partially occupied with seasonal and/or temporary uses since March 2006; WHEREAS, Westfield intends to reuse the existing Robinsons -May building at the Center and certain interior and exterior improvements are being proposed that will allow for the reuse of the existing building by new tenants including XXI (aka Forever 21) (the "Improvement Work "). The Improvement Work does not add any new square footage to the existing Robinsons -May building and consists of typical improvements for reuse of existing buildings as part of the Center's regular operations, including, without limitation, demolition and construction activities, modifications to existing floor plans /layouts, tenant spaces, circulation, and ingress /egress, replacement of tenant - specific signage, fagade, and other aesthetic treatments, and other Building Code - required updates /alterations; WHEREAS, Westfield submitted a building permit application on June 6, 2011 for certain of the Improvement Work and other building permits will be sought by Westfield and the new tenant(s) in the future for the remainder of the Improvement Work. The City has issued building permit No. B00-o3?' 331 and will likely issue other building permits for the Improvement Work in the future (collectively, the "Building Permits "); WHEREAS, the City has determined that the Improvement Work is ministerial and not a discretionary project under the California Environmental Quality Act ( "CEQA "). Specifically, the City has determined that issuance of building permits for the Improvement Work (a) is consistent and in compliance with all applicable City requirements, including, without limitation, General Plan, Municipal Code, Zoning, Resolution No. 6199 and Building Code requirements; (b) is not subject to architectural design review pursuant to Resolution No. 6199, and (c) is consistent with prior and current City practice for reuse of existing buildings; and WHEREAS, the City filed a CEQA Notice of Exemption ( "NOE ") on �ul1 e 11 , 2011 related to its issuance of the ministerial Building Permits for the Improvement Work and may file other NOEs related to the Improvement Work in the future. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the covenants contained herein, the Parties agree as follows: 1. The Parties agree that the Recitals constitute the factual basis upon which the City and Westfield have entered into this Agreement. The City and Westfield each acknowledge the accuracy of the Recitals and agree that the Recitals are incorporated into this Agreement as though fully set forth at length herein. 2. Westfield shall defend (with legal counsel acceptable to the City), indemnify and hold harmless the City, its agents, officials, officers, and employees from any and all claims, actions, and /or proceedings against the City and /or its agents, officials, officers, and /or employees to attack, set aside, void or annul the City's issuance of the Building Permits or any decision, action or failure to act by the City with respect to the Improvement Work. 3. The City shall promptly notify Westfield of any claim, action, or proceeding and the City shall cooperate reasonably in the defense. If the City fails to promptly notify Westfield of any claim, action or proceeding, or if the City fails to cooperate reasonably in the defense, Westfield shall not thereafter be responsible to defend, indemnify, or hold harmless the City. 4. Westfield shall reimburse the City for any court and attorney's fees which the City may be required to pay as a result of any claim or action brought against the City because of the issuance of the Building Permits or the Improvement Work. Although Westfield is the real party in interest in an action, the City may, at its sole discretion, participate in the defense of the action, but such participation shall not relieve Westfield of any obligation under this section. 5. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflicts of law rule or principle that might require the application of the laws of another jurisdiction. 6. If any term, provision, covenant or condition hereof or any application thereof is held by a court of competent jurisdiction to be invalid, void or unenforceable, all terms, provisions, covenants and conditions hereof, and all applications thereof, not held invalid, void or unenforceable shall continue in full force and effect and shall in no way be affected, impaired or invalidated. thereby. 7. The term of this Agreement shall commence on the date that this Agreement is frilly executed by the Parties and the first Building Permit is issued, and shall terminate when (a) all applicable statutes of limitations with respect to filing court challenges of the City's issuance of Building Permits have lapsed, and, as applicable, the Improvement Work has been completed as evidenced by issuance by the City of a certificate of occupancy for all space for which all Building Permits are issued, and (b) Westfield has satisfied all of its obligations under this 2 Agreement including, without limitation, the obligation to reimburse the City for any costs incurred pursuant to Section 4 above. Westfield's obligation to reimburse the City as provided in Section 4 above shall survive the termination of this Agreement. 8. This Agreement shall be legally binding upon Westfield and its successors and assigns and shall inure to the benefit of the City. 9. Westfield represents and warrants that the persons and entities executing this instrument have full authority to do so and that the Agreement is binding upon Westfield without the necessity of any other action or consent by any other person or entity. 10. Any oral representations or modifications concerning this Agreement shall be of no force and effect except a subsequent modification in writing, signed by all Parties hereto. This Agreement cannot be altered, changed or terminated, in whole or in part, orally, and no statement or agreement shall be effective to alter, waive, change, modify, terminate or discharge this Agreement in whole or in part unless such statement or agreement is in writing signed by all Parties hereto. 11. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument, with the same effect as if all of the Parties to this Agreement had executed the same counterpart. 12. In the event that any action or proceeding, including arbitration, is commenced by either the City or Westfield against the other to establish the validity of this Agreement or to enforce any one or more of its terms, the prevailing party in any such action or proceeding shall be entitled to recover from the other, in addition to all other legal and equitable remedies available to it, its actual attorneys' fees and costs of litigation, including, without limitation, filing fees, services fees, deposition costs, arbitration costs and expert witness fees, including actual costs and attorneys' fees on appeal. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. WESTFIELDjJLC, CITY OF ARCADIA, a charter city and a Delawatrebilit mpany municipal corporation By: By: Sig Donald Penman City Manager Pri Date: Gad Title ATTEST: By: ! Lisa Miissenden Chief Deputy City Clerk APPROVED AS TO FORM: Best Best & Krieger LLP By. P. Stephen P. Deitsch City Attorney City of Arcadia El