HomeMy WebLinkAboutC-2480REIMBURSEMENT AGREEMENT
Between
CITY OF ARCADIA
a California charter city
and municipal corporation
R
SANTA ANITA FASHION PARK, LLP
a Limited Liability Partnership
(00oac)
C- ;L4 E)0
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement ( "Agreement ") is made this day of ,
2009, by and between the City of Arcadia, a charter city and municipal corporation (the "City "),
and Santa Anita Fashion Park, LLP, a limited liability partnership (the "Applicant ").
RECITALS
This Agreement is made with respect to the following facts.
A. The Applicant wishes to expand and modify real property for the purposes described
hereafter. The subject property is generally known as Westfield Santa Anita (the
"Property ") and is located within the City of Arcadia, County of Los Angeles, state of
California. A portion of the property is bounded by the Santa Anita Racetrack and
associated horse stables to the north, the Santa Anita Racetrack parking lot to the east and
Baldwin Avenue to the west.
B. In June 1999, the Applicant submitted various land use entitlement applications to allow
for an expansion of the Property to include an additional 600,000 square feet of gross
leasable area as well as to allow for revisions to existing performance standards and
design guidelines (the "Project "). In 2005, the Applicant applied for review for a second
unit of Project development referred to as Phase lb. The City approved Phase lb subject
to several conditions of approval. The Applicant now wishes to modify one of those
conditions of approval for Phase lb of the Project by increasing the permitted amount of
restaurant space on the Property from 10,000 square feet to 23,500 square feet while
simultaneously allowing for a reduction in the Property's retail space by 13,500 square
feet. On July 21, 2009 the City adopted Resolution 6676, approving the amendment of
the condition of approval for Phase lb and finding that the amendment qualified for a
Class 1 Categorical Exemption under the California Environmental Quality Act
( "CEQA ").
C. On August 20, 2009, Santa Anita Associates LLC challenged the City's contention that
the amendment to the condition of approval for Phase lb qualified for a Class 1
Categorical Exemption under CEQA by filing a petition for a writ of mandamus and
administrative mandamus in Los Angeles Superior Court (the "Action "). Claiming that
the condition of approval for Phase lb is not eligible for a Class 1 Categorical Exemption
under CEQA, Santa Anita Associates LLC requested that the Court vacate the City's
approval of the amendment.
D. The City must now respond to the Action to ensure the Project's continued completion. The
Applicant has agreed to reimburse the City for the Legal Counsel and Consultants' costs
and expenses related to the City's defense of and response to the Action. Furthermore, the
Applicant has agreed to reimburse the City for all court costs and expenses determined to be
necessary in responding to the Action in the reasonable but otherwise sole and absolute
discretion of the City and their Legal Counsel. The Applicant's reimbursement of City under
this Agreement will ensure that the City has the necessary resources to diligently and
efficiently respond to the Action.
2
AGREEMENT
NOW, THEREFORE, in consideration of the following mutual promises and agreements,
the 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.
Reimbursement of City's Legal Expenses. As a necessary and indispensable part of its
response to the Action, 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 allow their Legal Counsel to retain Consultants and Experts to assist their Legal
Counsel in responding to the Action. The City reserves the right, in its reasonable but otherwise
sole and absolute discretion, to retain other Consultants to assist the City in responding to the
Action. 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 response to the Action.
The Applicant agrees that, notwithstanding the Applicant's reimbursement obligations
under this Agreement which require the Applicant to reimburse the City for one - hundred percent
(100 %) of the actual costs and expenditures incurred by the City relative to the Legal Counsel
and Consultant costs, Legal Counsel and Consultants hired by either the City or by the City's
Legal Counsel, shall be the contractors exclusively of the City or of the City's Legal Counsel,
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 Consultants 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 Consultants.
CF.f TInN I
City's Selection of Counsel and Consultants. The City has retained Best Best & Krieger
LLP as its Legal Counsel.
The City and Best Best & Krieger LLP reserve the right, in their reasonable but otherwise
sole and absolute discretion, to retain additional Experts and Consultants to assist in the defense
of the Action. At least twenty (20) calendar days prior to retaining any such Expert or
Consultant, the City shall consult with Applicant's legal counsel (Ed Casey of Alston & Bird,
3
LLP) concerning the selection of said Expert or Consultant, although the City retains the right to
exercise its sole discretion to retain such an Expert or Consultant.
SECTION 4.
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 from August 14, 2009 until the termination of this Agreement pursuant to Section 6, relative
to the response to the Action, including, but not limited to, all legal fees and costs incurred in
response to the Action. Costs shall include, but not be limited to, filing fees, service fees,
deposition costs, arbitration costs and expert witness fees, including actual costs and attorneys'
fees on appeal, related legal research and analysis for preparation of the defense of the Action,
written responses and other correspondence concerning the Action, review and analysis of any
documents filed in the Action, interaction with City Staff or other Experts and Consultants
concerning the Action, 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 Action,
including any appeals, although such reimbursable Costs and Expenditures shall not include time
spent by City staff or employees in connection with any aspect of, or matter relating to, the
Action.
SECTION 5.
Payment of Reimbursement Amounts. All Costs incurred by the City in responding to the
Action will be paid by the Applicant by advance de osit with the City of moneys sufficient to
pay all such Costs. a. OW
Based on the City's estimat of initial Costs, within ten (10) calendar days of execution
of this Agreement, Applicant will make an advance deposit to the City in the amount of Ak
thousand dollars ( ) that will be used to reimburse the City for all Costs already
expended by the City in responding to the Action and Costs that will be incurred by the City in
responding to the Action.
If additional funds are required to pay Costs, 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, Applicant shall
request of 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 the disputed amount. At all times, however, the Applicant shall have on -hand funds
necessary to cover all Costs of the City in regards to the response to the Action.
The deposits shall be used by the City solely to pay for Costs incurred by the City
incident to the response to the Action as well as the proceedings concerning the Action.
Applicant shall pay all Legal Counsel fees and costs at the private law rates of Legal Counsel as
they are currently in effect, as set forth in Exhibit A, or as they may be revised and formally
4
adopted by Legal Counsel from time to time, minus a ten percent (10 %) discount. By October
30, 2009, the City shall provide to Applicant's legal counsel (Ed Casey of Alston & Bird, LLP) a
written or e -mail summary of the Costs that the City has paid with funds deposited by Applicant
pursuant to this Section 5. Thereafter, the City shall provide Applicant's legal counsel on a
monthly basis with a written or e -mail summary of Costs paid by the City during the preceding
thirty (30) days with the funds deposited by Applicant.
The City shall refund any unexpended portion of the deposits, after payment or provision
for payment of all Costs incurred upon the Action's ultimate termination within forty -five (45)
days of that termination, provided there are no court acts or appeals still outstanding.
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 responding to the Action has been completed to the City's reasonable satisfaction, the
City is fully satisfied that no further work is required in responding to either the Action or any
appeals resulting from the Action, and the Applicant has satisfied all of its obligations under this
Agreement including, without limitation, the obligation to reimburse the City for Costs, 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 6. Within ten (10) calendar days of
termination of this Agreement, Applicant will provide final reimbursement to the City for one -
hundred percent (100 %) of outstanding Costs incurred by the City in response to the Action that
have not yet been reimbursed by the Applicant.
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 both the authorized representatives of both the City and the Applicant. All
modifications to this Agreement must be approved by the City Council of the City of Arcadia.
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.
E
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 response to the Action. 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, 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 the Action, or any
other CEQA Litigation, including any appeal, as well as any payment of attorneys' fees or costs
the City may agree jointly with Applicant to pay in any negotiated settlement of the Action,
including any appeal. Applicant shall pay the attorneys' fees and costs at the private law rate as
set forth in the City Attorney's agreement 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,
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.
on
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
language of each Section.
SECTION 15.
No Guarantees of Successful Response. The parties hereby acknowledge and agree that
nothing in this Agreement shall be read or construed to constitute any guarantees or promises
that the response to the Action will be successful. Furthermore, the parties hereby acknowledge
and agree that additional actions may have to be taken by the Applicant to meet the requirements
of CEQA at the conclusion of the Action in order for the Project to proceed.
SECTION 16.
Payment Due Within Ten Calendar Days of Execution of the Agreement. The City and
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 one - hundred thousand
dollars ($100,000), are due.
SECTION 17.
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.
SECTION 18.
Notices. Except as otherwise provided in this Agreement, notices required under this
Agreement shall be sent to the following:
If to the City: Donald Penman, City Manager
City of Arcadia
240 West Huntington Drive
Arcadia, California 91006
If to the Applicant: Peter Schwartz
Westfield LLC
11601 Wilshire Boulevard
Los Angeles, California 90025
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.
7
(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 17 may be changed upon written notice
of such change to either the City or the Applicant, as appropriate.
SANTA ANITA FASHION PARK, a
limited liability partnerslli
B y �17W A0� AV-
flA, t'�
1p U'S. �ToC�Nvdv
r: Lr
Print Name: P4,�k
Title: !;t " v
Date: ( fi)(WOc%
ATTESTED TO:
By: _
Lisa M�ssenden
Chief Deputy City Clerk/
Records Manager
APPROVED AS TO FORM:
Best Best & Krieger LLP
By:
Stephen Deitsch
City Attorney
CITY OF ARCADIA, a charter city and
municipal corporation
By: amus%-44 P�
Donald Penman
City Manager
Date: September , 2009
EXHIBIT "A"
Legal Counsel Costs
Private hourly rates ranging from $165 to $550 per hour for attorneys.
Private hourly rates ranging from $125 to $230 per hour for paralegals.
Subject to change from time to time consistent with changes in Best Best & Krieger's
regular private rates.