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HomeMy WebLinkAboutC-2861(IoO- LO C Zgul REIMBURSEMENT AGREEMENT Between CITY OF ARCADIA a California charter city and municipal corporation and SEABISCUIT PACIFICA LLC, a California limited liability company. REIMBURSEMENT AGREEMENT This Reimbursement Agreement ( "Agreement ") is made this 6 . day of February, 2014, by and between the City of Arcadia, a charter city and municipal corporation (the "City"), and Seabiscuit Pacifica LLC, a California limited liability company (the "Applicant "). RECITALS This Agreement is made with respect to the following facts. A. The Applicant, which will become the fee owner of certain real property as hereinafter described, wishes to redevelop such real property for the purposes described hereafter. The subject property is generally known as the Santa Anita Inn (the "Property ") and is located within the City of Arcadia, County of Los Angeles, state of California. The property is generally bounded by Huntington Drive to the north and south, property owned by the City of Arcadia to the west, and privately owned parcels to the east and northwest. The Property is currently owned by Dynasty Coachwork International, Inc., an entity which is related to Applicant, and the ownership interest shall be transferred to Applicant prior to the commencement of the Project (defined below). B. The Applicant desires to redevelop the Property that is currently developed as a hotel by constructing two new hotels totaling 210 rooms, and a condominium hotel structure of 50 units, along with associated parking and landscaping (the "Project "). C. Before the Project may commence, the Applicant must obtain permits and approval from the City related to the Project, which may include, without limitation, building permits, design review, a Specific Plan, a zoning /text amendment, amendments to existing approvals, and analysis of issues and certification or adoption of applicable documents under the California Environmental Quality Act ( "CEQA ") and must apply for those permits, approvals and the like by submitting applications (the "Permit Applications "). D. The Applicant is requesting the preparation of a Development Agreement ( "D.A. ") which will include provisions related to the operation of the Project, the timing of construction, the phasing of the project, financial participation by the City in the Project, and other considerations. E. In order for the City to properly consider and review the D.A., the City must involve its Legal Counsel. The Applicant has agreed to reimburse the City for the cost incurred by Legal Counsel related to the preparation of the D.A. and the City's consideration of the D.A. AGREEMENT NOW, THEREFORE, in consideration of the following mutual promises and agreements, the City and the Applicant agree as follows: SECTION 1. Incorporation of Recitals. The parties agree that the Recitals constitute the factual basis Reimbursement Agreement -Santa Anita Inn site February 24, 2014 Page 2 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. The City's Retention of Le al Counsel. As a necessary and indispensable part of its consideration of the D.A., the City shall retain the services of Legal Counsel as set forth in Section 3 of this Agreement as the City may deem necessary in its reasonable but otherwise sole and absolute discretion. The City reserves the right, in its reasonable but otherwise sole and absolute discretion, to involve City staff to assist the City in consideration of the D.A. The City also 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 consideration of the D.A. The City's Legal Counsel 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, its Legal Counsel, and City staff shall be, to the extent permissible by law, privileged and confidential work product 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 City staff. SECTION 3. The City's Selection of Legal Counsel. The City has retained Best Best & Krieger LLP as its Legal Counsel. SECTION 4. The 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's Legal Counsel, including, but not limited to, all legal fees and costs reasonably incurred in consideration of the D.A. Costs and Expenditures shall include, but not be limited to, the preparation and negotiation of this Agreement, interaction and meetings with City officials concerning the D.A., legal research and analysis to enable Legal Counsel to advise the City on the D.A., written responses and other correspondence concerning the D.A., specific project related work such as review of draft documents, meetings between the Applicant and the City's Legal Counsel, meetings between City staff and Legal Counsel, filing fees, service fees, deposition costs, arbitration costs and expert witness fees, including actual costs and attorneys' fees on appeal, appearances in court, at depositions, or at other required proceedings, and defense of any complaint, writ petition or other legal or equitable action concerning the D.A., including any appeals. SECTION 5. Payment of Reimbursement Amounts. All Costs and Expenditures shall be paid by the Reimbursement Agreement -Santa Anita Inn site February 24, 2014 Page 3 Applicant by advance deposit with the City of moneys sufficient to pay all such Costs and Expenditures. Based on the City's estimate of initial Costs and Expenditures, within ten (10) calendar days of execution of this Agreement, the Applicant shall make an advance deposit to the City in the amount of fifteen thousand dollars ($15,000) that will be used to reimburse the City for all Costs and Expenditures incurred by the City. If additional funds are required to pay Costs and Expenditures, the City Manager shall make advance written demand upon the Applicant for such additional funds and the Applicant shall deposit such additional funds with the City within ten (10) calendar days of the date of receipt of such demand. Should the Applicant have questions or require further clarification, the Applicant shall request of the City information within said ten (10) day period needed to resolve any questions. The parties agree to meet as expeditiously as possible and negotiate in good faith within said ten (10) day period to resolve any disputes. Notwithstanding the above, the Applicant is still required to deposit the funds required by the City and may indicate in writing that the Applicant is paying in protest of the disputed amount. At all times, however, the Applicant shall have on -hand funds necessary to cover all actual Costs and Expenditures. The deposits shall be used by the City solely to pay for Costs and Expenditures of Legal Counsel. The Applicant shall pay all Legal Counsel fees and costs at the private law rates of Legal Counsel as they are currently in effect and on file with the City, or as they may be revised and formally adopted by Legal Counsel from time to time, minus a ten percent (10 %) discount. The City shall provide the Applicant on a monthly basis with a written summary of the Costs and Expenditures paid by the City during the preceding thirty (30) days with the funds deposited by the Applicant. The City shall refund any unexpended portion of the deposits, after payment or provision for payment of all Costs and Expenditures within forty -five (45) days after conclusion or termination of the City's consideration of and action on the D.A., provided there are no court actions or appeals then outstanding, and provided that any applicable statutes of limitations with respect to filing court challenges of the City's actions have lapsed. The City shall not accrue or pay interest on any moneys deposited with the City. SECTION 6. 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 in considering the D.A. has been completed to the City's reasonable satisfaction, the City is fully satisfied that no further work is required in considering the D.A., there are no court actions or appeals then outstanding, any applicable statutes of limitations with respect to filing court challenges of the City's actions have lapsed, and the Applicant has satisfied all of its obligations under this Agreement including, without limitation, the obligation to reimburse the City for Costs and Expenditures, whether or not paid by the City to Legal Counsel 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 6. Reimbursement Agreement -Santa Anita Inn site February 24, 2014 Page 4 SECTION 7. Assignability. 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. 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. SECTION 8. 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 the authorized representatives of both the City and the Applicant. SECTION 9. 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 10. Legal Challenges and Indemnification. 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 consideration of the D.A. 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 for all reasonable attorneys' 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. Notwithstanding any provision herein to the contrary, the Applicant agrees to indemnify, defend and hold harmless the City and its Legal Counsel from and against any order, award, or judgment against the City for attorneys' fees, costs or damages resulting from consideration of the Permit Applications and D.A., including any appeal. The Applicant shall pay the attorneys' fees and costs at the private law rate as set forth in the legal services agreement between the City and the City Attorney minus a ten percent (10 %) discount. SECTION 11. Attorneys' Fees. In the event that any action or proceeding, including 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, Reimbursement Agreement -Santa Anita Inn site February 24, 2014 Page 5 including actual costs and attorneys' fees on appeal. SECTION 12. 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 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 13. Severability. 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 14. 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 anguage of each Section. SECTION 15. No Guarantees of Approval. The parties hereby acknowledge and agree that nothing in this Agreement shall be read or construed to constitute any guarantees or promises that the D.A. will be successfully approved. In the event that the D.A. is not successfully approved, the parties acknowledge and agree that the Applicant shall not be due any refund of Costs and Expenditures already paid, other than as set forth in Section 5 of this Agreement. Furthermore, the parties acknowledge and agree that the Applicant shall remain obligated to pay all Costs and Expenditures that may continue to accrue until this Agreement is terminated pursuant to the terms of Section 6 of this Agreement. SECTION 16. Payment Due Within Ten Calendar Days of Execution of the Agreement. The City and the Applicant both agree that within ten (10) calendar days of execution of this Agreement, all moneys owed to the City by Applicant for the advance deposit, totaling fifteen thousand dollars ($15,000), are due. SECTION 17. Representations of Authori ty. 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 Reimbursement Agreement -Santa Anita Inn site February 24, 2014 Page 6 signs. Notices. Notices required under this Agreement shall be sent to the following: If to the City: Dominic Lazzaretto, City Manager City of Arcadia 240 West Huntington Drive Arcadia, California 91006 If to the Applicant: Andrew Chang, Manager SEABISCUIT PACIFIC, LLC 488 E. Santa Clara, Suite 305 Arcadia, CA 91006 With copy to: Phillip H. Kwon, Esq 3440 Wilshire Blvd. Suite 1208 Los Angeles, CA 90010 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 Ply (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 17 may be changed upon written notice of such change to either the City or the Applicant, as appropriate. IN WITNESS WHEREOF, this Agreement has been executed by the City and the Applicant as of the date first written above. Reimbursement Agreement -Santa Anita Inn site February 24, 2014 Page 7 SEABISCUIT PACIFICA, LLC By: Continental Assets Management, LLC, its Manager, By: e _ iiA4l Print Name Title Date: �Q (46 /,)v(,V- By: Signature 1--p dA (f Print Name oo Title Date: Old y loa /� CITY OF ARCADIA, a charter city and municipal corporation BY C^ . Dominic City Manager Date: 2r s..ol'f ATT S . By: Li a ussenden Chief Deputy City Clerk/ Records Manager APPROVED AS TO FORM: B Y• P. Lt4A"_ Stephen P. Deitsch City Attorney City of Arcadia Reimbursement Agreement -Santa Anita Inn site February 24, 2014 Page 8