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HomeMy WebLinkAboutC-21850 REIMBURSEMENT AGREEMENT Between CITY OF ARCADIA a California charter city and municipal corporation and WESTFIELD CORPORATION, INC. RVPUBISPD1701229.2 Ca�Bs- 0 0 REIMBURSEMENT AGREEMENT -ftt ,� /� ,� This Reimbursement Agreement ( "Agreement ") is made this z.5 day of0Cl� 02005, by and between the City of Arcadia, a charter city and municipal corporation (the "City "), and Westfield Corporation, Inc. (the "Applicant "). RECITALS This Agreement is made with respect to the following facts. A. The Applicant is the fee owner of certain real property (the "Property ") generally located at 400 S. Baldwin Avenue within the City of Arcadia, County of Los Angeles, California and bounded by Huntington Drive on the south, Baldwin Avenue on the west, and property commonly referred to as the Santa Anita Race track to the north and east. B. The Applicant is contemplating an approximately 160,000 square foot gross leasable area commercial addition to the existing Westfield Santa Anita mall, as well as three levels of parking (one level on grade and two levels below grade). The Applicant has submitted an application for architectural design review and various environmental documents pursuant to the California Environmental Quality Act ( "CEQA "). All of the above shall be referred to collectively as the "Project." C. To provide the City with the legal, environmental, traffic and other expertise necessary for the City's review process concerning the development of the Property, it is necessary for the City to access the services of environmental, traffic and other consultants and the contract City Attorney and/or special counsel ( "Legal Counsel ") for extraordinary legal and environmental services, including without limitation traffic impact analysis for the Project (collectively "Consultants "). D. As a condition to the City's completion of the environmental and application review process, the Applicant has agreed to reimburse the City for the Legal Counsel and Consultants' costs and expenses related to the City's environmental review process in the manner set forth in this Agreement, as well as the costs and expenses related to City Staff in the review, consultation and preparation of documents concerning the environmental process. The Applicant's reimbursement of City under this Agreement will ensure that the City has the necessary resources to diligently and efficiently process the Applicant's Project. -2- 10/4/05 AGREEMENT NOW, THEREFORE, in consideration of the following mutual promises and agreements, City and Applicant agree as follows: Section 1. Incorporation of Recitals. The parties agree that the Recitals constitute the factual basis upon which the City and the Applicant have entered into this Agreement. The City and the Applicant 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. Section 2. City to Retain Consultants. As a necessary and indispensable part of its fact finding and other processes relating to the review of the Applicant's Project, the City shall retain the services of Legal Counsel and Consultants as set forth in Section 4 of this Agreement to provide advice as the City may deem necessary in its reasonable but otherwise sole and absolute discretion. The scope of work of the Legal Counsel and Consultants for the Project is attached hereto as Exhibit "B ". The City reserves the right, in its reasonable but otherwise sole and absolute discretion, to amend the scope of work as it deems necessary and appropriate where such amendments are reasonably necessary and related to the City's proper review and consideration of the Applicant's Project. The Applicant agrees that, notwithstanding the Applicant's reimbursement obligations under this Agreement, Legal Counsel and Consultants shall be the contractors exclusively of the City and not of the Applicant. Except for those disclosures required by law including, without limitation, the California Public Records Act, all conversations, notes, memoranda, correspondence and other forms of communication by and between the City and its Legal Counsel and Consultants shall be, to the extent permissible by law, privileged and confidential and not subject to disclosure to the Applicant. The Applicant agrees that it shall have no claim to, nor shall it assert any right of ownership in, any reports, correspondence, plans, maps, drawings, news releases or any and all other documents or work product produced by the Legal Counsel and Consultants. Section 3. Applicant to Cooperate with Consultants. The Applicant and the City each agree to cooperate in good faith with each other's staff, Legal Counsel, and Consultants for purposes of environmental analysis thereof. The Applicant agrees that it will instruct its agents, officers, officials, employees, consultants, contractors and attorneys to reasonably cooperate with the Legal Counsel and Consultants and to provide all necessary documents or information reasonably requested of them by the City and/or the Legal Counsel and/or Consultants; provided, however, that the foregoing shall not require the disclosure of any documents or information of the Applicant which by law is privileged, proprietary, confidential, and exempt from disclosure under the Public Records Act. Section 4. City's Selection of Consultants. The City will retain the following services from Consultants pursuant to this Agreement: (i) Best Best and Krieger LLP (legal services) -3- 1014105 0 (ii) Willdan Associates (traffic engineer) (iii) Albert A. Webb Associates (environmental consultant) Section 5. Applicant's Reimbursement of Costs and Expenditures. The Applicant shall reimburse the City for one hundred percent (100 %) of the actual costs and expenditures incurred by the City relative to the retention of Legal Counsel and Consultants, and relative to City staff (collectively, "Costs ") for purposes of reviewing and processing the environmental documents concerning the Project and paying Legal Counsel and Consultants and reimbursing the City for Staff time and costs with respect thereto. The City has preliminarily determined the scope of work required for its consideration of the Applicant's applications and environmental analysis with respect thereto. The services of Legal Counsel, Consultants and City staff therefor will be billed on an hourly basis. The initial deposit paid by Westfield for the needed work shall be $25,000. The initial deposit shall be applied toward reimbursement of the City for Costs. The parties understand and agree that the total Costs may well exceed the initial deposit. The City shall use reasonable good faith efforts to consult with the Applicant prior to amending the scope of services to be provided by Legal Counsel and Consultants or otherwise incurring Costs that exceed the initial deposit ( "Excess Costs "). The Applicant's obligation to reimburse the City for Costs which exceed the initial deposit shall be contingent upon the City providing the Applicant prior to the commencement of additional work with written notice of the amendment of the scope of work to be performed by Legal Counsel and Consultants and the estimated cost thereof or written notice that it is otherwise expected that Excess Costs will be incurred. The City shall not incur Excess Costs without the prior written approval of the Applicant which shall not be unreasonably withheld or delayed. For purposes of this Section 5, the City shall be deemed to have consulted with the Applicant when the City has provided written notice to the Applicant that the City reasonably anticipates that it will incur, or has incurred, Excess Costs. If, after consultation, the Applicant disagrees with the City's incurring Excess Costs, then the Applicant's sole and exclusive remedy will be to terminate this Agreement pursuant to Section 8 of this Agreement, subject to the Applicant's obligation to reimburse the City for all Costs incurred by the City prior to the date of termination, whether or not yet paid by the City to Legal Counsel and Consultants; provided that such Costs do not exceed the initial deposit plus any approvals given by the Applicant for the City to incur Excess Costs. Should the Applicant terminate this agreement, the City is under no obligation to proceed with its environmental review of the Project. Section 6. Payment of Reimbursement Amounts. Immediately following the City's disbursement of funds to Legal Counsel and Consultants pursuant to the retainer agreement with the Legal Counsel and Consultants, the City shall make written demand to the Applicant for payment of the amount paid by the City to Legal Counsel and Consultants. The Applicant shall be provided with copies of each retainer agreement prior to the commencement of any work. The City shall provide to the Applicant along with such written demand reasonable documentation to substantiate any demands for payment. Such documentation shall include, but not be limited to, timesheets, invoices, receipts, and approved consultant proposals and change orders; provided, however, that the City shall have the right to redact from such documents any -4- 10/4/05 9 0 information that the City reasonably determines would be privileged, confidential, or not otherwise subject to release pursuant to the standards set forth in the California Public Records Act, Government Code Section 6250, et seq. Within thirty (30) days after receipt of written demand for payment by the City, the Applicant shall pay the City the amount demanded. Should the Applicant have questions or require further clarification, Applicant shall request of the City information within said thirty (30) day period needed to resolve any questions. The parties agree to meet as expeditiously as possible and negotiate in good faith within said thirty (30) day period to resolve any disputes. Notwithstanding the above, the Applicant is still required to pay the invoiced amount to the City and may indicate in writing that the Applicant is paying in protest the disputed amount. Section 7. Term. The term of this Agreement shall commence on the date that this Agreement is approved by the City and fully executed by the parties and shall terminate when all work required has been completed to the City's reasonable satisfaction and the Applicant has satisfied all of its obligations under this Agreement including, without limitation, the obligation to reimburse the City for all Costs associated with the environmental review and processing of said project, whether or not paid by the City to Legal Counsel and Consultants prior to the date of termination. The Applicant's obligation to reimburse the City as provided in this Agreement shall survive the termination of this Agreement pursuant to this Section 7. Section 8. Early Termination. The City may terminate this Agreement prior to the term set forth in Section 7 above, without cost to or liability of the City, upon thirty (30) days prior written notice to the Applicant. The Applicant may in its reasonable but otherwise sole and absolute discretion terminate this Agreement prior to the end of the term set forth in Section 7 above upon thirty (30) days prior written notice to the City. However, the City shall not be entitled to any reimbursement for Excess Costs incurred following the effective date of termination, provided that the Applicant has satisfied all of its obligations under this Agreement to date of termination regarding reimbursement to the City of Costs and, furthermore, that the Applicant has given the City written notice withdrawing its application(s) for the Project. Within two (2) City working days following either the City's decision to terminate this Agreement or the City's receipt of written notice indicating the Applicant's decision to terminate this Agreement, the City shall notify Legal Counsel and Consultants and instruct them to cease work. Legal Counsel and Consultants shall be instructed to bill the City for any work completed prior to the effective date of termination and the Applicant shall reimburse the City for such billings in accordance with the procedures set forth in this Agreement. Section 9. Assi ability. This Agreement may not be assigned by either party without the prior and express written consent of the other party, which consent shall not be unreasonably withheld. In determining whether to approve a request by the Applicant to assign this Agreement, the City may consider, among other things, the proposed assignee's financial status and commitment to the Project. Any attempted assignment of this Agreement not in compliance with the terms of this Agreement shall be null and void and shall confer no rights or benefits upon the assignee. -5- 10/4/05 9 0 Section 10. No Oral Modifications. This Agreement represents the entire understanding of the City and the Applicant and supersedes all other prior or contemporaneous written or oral agreements pertaining to the subject matter of this Agreement. This Agreement may be modified, only by a writing signed by both the authorized representatives of both the City and the Applicant. All modifications to this Agreement shall be approved by the City Manager of the City of Arcadia. Section 11. Binding Upon Successors. This Agreement and each of its terms shall be binding upon the City, the Applicant and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns. Section 12. Legal Challenges. Nothing herein shall be construed to require the City to defend any third party claims and suits challenging any action taken by the City with regard to any procedural or substantive aspect of the City's approval of development of the Property, the environmental process, or the proposed uses of the Property. The Applicant may, however, in its sole and absolute discretion appear as real party in interest in any such third party action or proceeding, and in such event, it and the City shall defend such action or proceeding and the Applicant shall be responsible and reimburse the City for reasonable attorney fees and costs, in their entirety, which may be incurred by the City in defense of such action or proceeding. The City shall consult with the Applicant regarding the retention of legal counsel; provided, however, the City shall have the right to select such legal counsel, as the City deems reasonable and appropriate. The Applicant may, at any time, notify the City in writing of its decision to terminate the defense of any such action or proceeding, in which event the Applicant shall have no obligation to reimburse the City for its attorney fees and costs beyond that reasonably necessary in order to permit the City to terminate its defense of such action or proceeding. Notwithstanding any provision herein to the contrary, the City shall consult with the Applicant for purposes of deciding whom to retain as legal counsel to defend any such action or proceeding. Additionally, during each phase of litigation the retained legal counsel shall prepare and submit an estimated budget for said defense to the City and Applicant and Applicant has the right to approve of said budget; provided, however, that if the Applicant disapproves said budget and, as a result thereof, the City terminates its defense of such action or proceeding, then the Applicant shall reimburse the City for all fees and costs necessary in order to permit the City to terminate its defense of such action or proceeding. Section 13. Attorneys' Fees. In the event that any action or proceeding, including without limitation arbitration, is commenced by either the City or the Applicant 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, service fees, deposition costs, arbitration costs and expert witness fees, including actual costs and attorneys' fees on appeal. Section 14. Jurisdiction and Venue. This Agreement is executed and is to be performed in the City of Arcadia, Los Angeles County, California, and any action or proceeding brought -6- 10/4/05 relative to this Agreement shall be heard in the appropriate court in the County of Los Angeles, California. The City and the Applicant each consent to the personal jurisdiction of the court in any such action or proceeding. Section 15. Severabilitv. If any term or provision of this Agreement is found to be invalid or unenforceable, the City and the Applicant both agree that they would have executed this Agreement notwithstanding the invalidity of such term or provision. The invalid term or provision may be severed from the Agreement and the remainder of the Agreement may be enforced in its entirety. Section 15. Headings. The headings of each Section of this Agreement are for the purposes of convenience only and shall not be construed to either expand or limit the express terms and language of each Section. Section 16. Representations of Authority. Each party signing this Agreement on behalf of a party which is not a natural person hereby represents and warrants to the other party that all necessary legal prerequisites to that party's execution of this Agreement have been satisfied and that he or she has been authorized to sign this Agreement and bind the party on whose behalf he or she signs. Notices. Notices required under this Agreement shall be sent to the following: If to the City: William R. Kelly, City Manager City of Arcadia 240 West Huntington Drive Arcadia, California 91006 If to the Applicant: John Healy Vice President Development Westfield Corporation, Inc. 11601 Wilshire Boulevard, 11th Floor Los Angeles, CA 90025 -1748 Notices given pursuant to this Agreement shall be deemed received as follows: (1) If sent by United States Mail - five (5) calendar days after deposit into the United States Mail, first class postage prepaid. (2) If by facsimile - upon transmission and actual receipt by the receiving party. (3) If by express courier service or hand delivery - on the date of receipt by the receiving party. The addresses for notices set forth in this Section 16 may be changed upon written notice of such change to either the City or the Applicant, as appropriate. -7- 10/4/05 IN WITNESS WHEREOF, THE PARTIES HAVE ENTERED INTO THIS AGREEMENT AS OF THE DATE FIRST WRITTEN ABOVE. CITY OF ARCADIA a California charter city and municipal corporation By: City Manager Dated: tO.IH40 ATTEST: By: City Cleik APPROVED AS TO FORM: �LP; �' City Attorney APPLICANT: Westfield Corporation, Inc. By:_ '�w( Dated: -8- 10/4/05 Exhibit "A" Description of the Property The property is commonly known as Westfield Santa Anita, located at the northeast corner of Baldwin Avenue and Huntington Drive. -9- 10/4/05 0 Exhibit 'B" Scope of Services BBK — Legal services in review and comment on the environmental documents, including but not limited to analysis prepared by consultants and City staff and responding to environmental comments, questions and issues generated by Westfield, City staff, consultants or the general public. Willdan Associates — Traffic Engineer — will provide review and comment on the traffic information, data and analysis submitted by Westfield Corporation, Inc. and their consultant(s). Willdan traffic engineering services provided under this agreement will include analysis of new information provided by Westfield relative to the next proposed phase of development (approximately 160,000 sq. ft. of GLA) in relation to the EIR certified in the year 2000 for the mall expansion. Albert A. Webb Associates — Consultant Services will include but not be limited to review of environmental information provided by Westfield for their next phase of development relative to the EIR certified in the year 2000 in terms of adequacy, completeness and consistency. Consultant will also advise City if additional information and analysis is required. -10- 10/4/05 Exhibit "C" Reimbursement Payments (INTENTIONALLY OMITTED) -11- 10/4/05