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REIMBURSEMENT AGREEMENT
Between
CITY OF ARCADIA
a California charter city
and municipal corporation
and
WESTFIELD, LLC
a Delaware Limited Liability Company
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement ( "Agreement ") is made this a 041 day of ,
2010, by and between the City of Arcadia, a charter city and municipal corporation (the "City"),
and Westfield, LLC, a Delaware limited liability company (the "Applicant ").
RECITALS
This Agreement is made with respect to the following facts.
A. The Applicant, the development manager for the owners of certain real property as
hereinafter described, wishes to rehabilitate and/or redevelop such 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, Baldwin Avenue to the west and Huntington Drive to the south.
B. The Applicant desires to rehabilitate and/or redevelop certain space on the Property that
is currently either unused or underutilized, and to expand the existing regional shopping
center located on the Property by constructing additional retail space and parking
facilities (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 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. In order for the City to properly consider and review the Permit Applications, the City must
involve both City staff and its Legal Counsel. The Applicant has agreed to reimburse the
City for the Legal Counsel and City staff costs and expenses related to the City's
consideration of the Permit Applications and any litigation related thereto, excluding those costs
and expenses associated with general case processing as determined in the City's reasonable but
otherwise sole and absolute discretion ( "Costs and Expenditures ").
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
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.
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SECTION 2.
The City's Retention of Legal Counsel. As a necessary and indispensable part of its
consideration of the Permit Applications, 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 Permit Applications. 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
Permit Applications.
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, Legal Counsel and City staff
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.
The City and the Applicant may, in their reasonable discretion and subject to their mutual
approval, enter into a joint defense agreement pertaining to the Permit Applications and any
project resulting therefrom.
SECTION 3.
The City's Selection of Legal Counsel. 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 advising the
City in the consideration of the Permit Applications. At least twenty (20) calendar days prior to
retaining any such expert or consultant, the City shall consult with the Applicant's legal counsel
(Francis Park of Park & Velayos LLP) concerning the selection of said expert or consultant
although the City retains the right to exercise its reasonable but otherwise sole and absolute
discretion to retain such an expert or consultant.
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, including, but not limited to, all legal fees and costs incurred in consideration of the
Permit Applications. Costs and Expenditures shall include, but not be limited to, the preparation
and negotiation of this Agreement and any other agreements which pertain to the Permit
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Applications, interaction and meetings with City officials concerning the Permit Applications,
legal research and analysis to enable Legal Counsel to advise the City on the Permit
Applications, written responses and other correspondence concerning the Permit Applications,
specific project related work such as review of draft documents, meetings between the Applicant
and City staff, meetings between City staff and Legal Counsel, internal meetings among City
staff, City staff review and processing of the Environmental Impact Report, professional
consultant peer review work pertaining to the Environmental Impact Report, review and analysis
of any documents filed with the Permit Applications, interaction with City staff or other experts
and consultants concerning the Permit Applications, 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 Permit Applications,
including any appeals. The City agrees that any Permit Application fees paid by the Applicant
shall be used as a credit by the City to pay for actual Costs and Expenditures.
SECTION 5.
Payment of Reimbursement Amounts. All Costs and Expenditures shall be paid by the
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 seventy-five thousand dollars ($75,000) that will be used to reimburse the City for
all Costs and Expenditures already incurred by the City and future 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. 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 Applicant
shall pay all City staff costs as set forth in Exhibit "A." 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.
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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 Permit Applications, 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 Permit Applications has been completed to the City's reasonable
satisfaction, the City is fully satisfied that no further work is required in considering the Permit
Applications, 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 and City staff 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.
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 Permit
Applications. 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, 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,
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
language of each Section.
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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
Permit Applications will be successfully approved. In the event that the Permit Applications are
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 seventy-five thousand
dollars ($75,000), 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.
Notices. 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: Office of Legal Counsel
Westfield, LLC
11601 Wilshire Boulevard, l 11h Floor
Los Angeles, California 90025 -1738
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.
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(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.
WESTFIELD, LLC,
a limited liability company
CITY OF ARCADIA, a charter city and
municipal corporation
By: _ By:
S ature Donald Penman
Rory A. Packer City Manager
Assistant Secretary
Pri ame Date: tof,!Sl,o
Title
Date:
AT EST:
By.
isa Niussenden
Chief Deputy City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
By: 1 =
Stephen P. Deitsch
City Attorney
City of Arcadia
EXHIBIT "A"
HOURLY RATE & BENEFITS FOR STAFF MEMBERS
WORKING ON WESTFIELD PROJECT
DEPARTMENT HOURLY RATE WITH
BENEFITS FY 10 /11
City Manager
157.67
City Manager
Legal Coordinator
66.95
Development Services Department
DSD Director
119.60
Community Development
Administrator
84.63
Senior Planner
63.54
Associate Planner
53.46
Chief Building Official
75.78
City Engineer
101.87
Sen. Admin. Assis
39.75
Engineering Aide
32.54
Senior Engineering Assistant
53.46
Fire Department
Fire Chief
125.43
Deputy Fire Chief
113.07
Battalion Chief
94.29
Fire Inspector
50.88
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Fire Marshall 77.64
Management Analyst 57.33
Fire Admin. Specialist 40.74
Police Department
Police Chief 128.57
Police Captain 113.07
Public Works
104.39
PWS Director
General Services 73.90
Supervisor
Dep. PW Services Director 77.64
Principal Civil Engineer 63.72
Assistant Engineer 53.46
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