18-0904_SADDLEBACK VALLEY COMMUNITY CHURCH_Deposit & Reimbursement Agreement DEPOSIT AND REIMBURSEMENT
AGREEMENT
Between
THE CITY OF SAN JUAN CAPISTRANO
a California general law city
and municipal corporation,
and
SADDLEBACK VALLEY COMMUNITY CHURCH
a California Non-Profit Religious Corporation
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DEPOSIT AND REIMBURSEMENT AGREEMENT
This Deposit and Reimbursement Agreement ("Agreement") is made this day of
S20-, 2018, by and between the City of San Juan Capistrano, a California general law city and
municipal corporation (the "City") and Saddleback Valley Community Church, a California
Non-Profit Religious Corporation("Saddleback").
RECITALS
This Agreement is made with respect to the following facts.
A. Saddleback is the fee simple owner of that certain real property in the City of San Juan
Capistrano consisting of Assessor's Parcel No. ("APN") 637-082-68 (the "Saddleback
Property") as more particularly depicted on Exhibit A.
B. There is currently a private railway crossing to access the Saddleback Property.
C. Saddleback desires to process an application through the California Public Utilities
Commission to redesignate the rail crossing as a public crossing and convert it to a Quiet
Rail Crossing (the "Project"). That application requires the City to serve as the lead
agency and applicant.
D. The City is willing to assist Saddleback with the preparation and processing of the CPUC
application and related documents to effectuate the Project. In order to do so, the parties
must undertake certain fact-finding activities and engage the services of various
consultants and City staff to perform the studies necessary to complete and process the
application to the CPUC, which may include legal, appraisal, survey, environmental
assessment, grade separation, other technical studies and title work consultants
(collectively, the "Consultant Work").
E. Saddleback desires and intends to reimburse the City for the fees and costs incurred by the
City (including City staff) and for the Consultant Work for purposes of enabling the City
to process through the CPUC and the Orange County Transportation Authority
("OCTA") the Project ("Fees and Costs"). Saddleback's advance deposit and
reimbursement of Fees and Costs to the City under this Agreement will help ensure that the
City has the necessary resources to diligently and efficiently pursue the Project.
AGREEMENT
NOW, THEREFORE, in consideration of the following mutual promises and agreements,
the City and Saddleback agree as follows:
1. Incorporation of Recitals. The parties agree that the Recitals constitute the factual basis
upon which City and Saddleback have entered into this Agreement. The City and
Saddleback each acknowledge the accuracy of the Recitals and agree that the Recitals are
incorporated into this Agreement as though fully set forth herein.
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2. Payment by Saddleback of Fees and Costs. Saddleback shall pay to the City all Fees and
Costs as follows: Within three (3) business days following Saddleback' execution of this
Agreement, Saddleback shall deposit with the City cash in the sum of Twenty Thousand
Dollars ($20,000) (the "Deposit").
2.1 As a necessary and indispensable part of the City's involvement with the Project,
the City and Saddleback agree that certain Consultants and experts will need to be
retained. The City shall retain any such Consultants, in addition to those retained
directly by Saddleback, as the City may deem reasonable and necessary in the
City's sole and absolute discretion. The City shall have the exclusive right to
select the Consultants and to determine the tasks to be undertaken and completed
by the Consultants, and the rates to be paid to the Consultants. Saddleback agrees
to reimburse the City one hundred percent (100%) of the Fees and Costs;
provided such Fees and Costs must only be with respect to work related to
consideration of the proposed Project described in this Agreement and for no
other project or City purpose. City acknowledges that Saddleback may also retain
consultants to prepare studies and facilitate the processing of the Project before
the OCTA or CPUC. The Parties agree to work together to coordinate the
processing of the Project and minimize the Fees and Costs, to the extent
reasonably feasible.
2.2 From time to time, the City shall draw upon the Deposit in order to pay all City
Fees and Costs incurred pursuing the Project including but not limited to staff,
consultant and attorney fees and costs. If the City, in its sole and absolute
discretion, determines that additional funds will be required to pay the Fees and
Costs, the City Manager, or his/her designee, shall make written demand upon
Saddleback for such additional funds (which, when received by the City shall also
be referred to herein as constituting the"Deposit"). Saddleback shall deposit such
additional funds with the City within ten (10) calendar days following the date of
receipt of such demand. Should Saddleback have questions or require further
clarification regarding the demand, Saddleback shall request of the City such
information needed to resolve any questions or clarification within said ten (10)
calendar day period. The parties agree to meet as expeditiously as possible and
negotiate in good faith within said ten (10) calendar day period to resolve any
disputes concerning the demand. Notwithstanding the above, Saddleback
understands and agrees that Saddleback is required to deposit the funds pursuant
to the demand of the City within said ten (10) calendar day period, but may
indicate in writing that Saddleback is depositing such funds with the City under
protest regarding all or any portion of the disputed amount.
2.3 In the event Saddleback fails or refuses to provide such additional funds within
the time required by this Agreement, the City may, in addition to any other
remedy provided by law, and without liability, cease pursuing the Project.
2.4 Within one hundred and twenty (120) calendar days following the Termination
Date (defined below), the City shall refund to Saddleback any and all unexpended
portions of the Deposit, after payment or provision for payment of all Fees and
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Costs. The City shall not have any obligation to accrue or pay interest on any
funds deposited by Saddleback with the City.
3. The City's Control of Consultants. Saddleback further understands and agrees that,
notwithstanding its reimbursement obligations as set forth in Section 2 hereof, the
Consultants hired by the City shall be the contractors and agents exclusively of the City,
and not of Saddleback. 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 City
Attorney and any other legal counsel retained by the City, and between the City Attorney
and such other legal counsel retained by the City, on the one hand, and other Consultants,
on the other hand, shall be to the extent permissible by law privileged and confidential
pursuant to attorney/client, work product, deliberative process or other privileges.
Saddleback agrees that it shall have no claim to, nor shall it assert any right of ownership
in, any reports, surveys, appraisals, title research, correspondence, plans, maps, drawings,
news releases or any other documents or work product produced by the City Attorney or
other legal counsel retained by the City, or produced by the Consultants for the City
Attorney. Excluding any privileged and/or work product documents subjects to the
preceding Section, the City agrees that Saddleback is entitled to review all City RFP's,
proposals, contracts, change orders, proofs of payment, books, documents, papers, plans
(electronic otherwise) ("Records"), directly pertinent to this Agreement for the purpose of
making an audit or examination.
4. Term. The term of this Agreement shall commence on the date that this Agreement has
been approved by City and is fully executed by the parties. The term of this Agreement
shall terminate on the earlier of the following dates (the "Termination Date"): (a) the date
that is ninety (90) calendar days following the date that the CPUC approves the Project;
(b) the date that Saddleback provides written notice to City of Saddleback's intention to
terminate Saddleback's pursuit of the Project; or (3) the date that the City provides
written notice to Saddleback of the City's decision to not pursue the Project.
Notwithstanding any provision in this Agreement, the obligation of Saddleback to pay for
the Fees and Costs incurred prior to the Termination Date shall survive the termination of
this Agreement. Additionally, Saddleback acknowledges that City has occurred expenses
associated with the preparation of this Agreement and other preliminary staff work prior
to the execution of this Agreement. Saddleback acknowledged and agrees to pay all costs
incurred prior to the execution of this Deposit Agreement.
5. Assignability. This Agreement may not be assigned by either the City or Saddleback
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.
6. No Oral Modifications. This Agreement represents the entire understanding of the City
and Saddleback with respect to the matters set forth in this Agreement, and supersedes all
other prior or contemporaneous written or oral agreements pertaining to the subject
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matter of this Agreement. This Agreement may be modified only by a writing signed by
both the authorized representatives of both the City and Saddleback.
7. Binding Upon Successors. This Agreement and each of its terms shall be binding upon
the City, Saddleback, and their respective officers, elected officials, employees, agents,
volunteers, directors, contractors, and permitted successors and assigns.
8. Legal Challenges and Indemnification. Nothing herein shall be construed to require the
City or Saddleback to defend any third party claims and suits challenging any action
taken by the City or Saddleback with regard to any procedural or substantive aspect of
the City's pursuit of the Project before the OCTA or CPUC. Saddleback 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, Saddleback and the City shall defend such action
or proceeding and Saddleback 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, provided the City consulted with Saddleback regarding the retention of legal
counsel and choice of counsel. Notwithstanding said consultation, City shall have the
right to select such legal counsel as the City deems reasonable and appropriate.
Notwithstanding any provision herein to the contrary, Saddleback agrees to indemnify,
defend and hold harmless the City and its officials, officers, employees and agents from
and against any order, award, or judgment against the City for attorneys' fees, costs or
damages resulting from the consideration and any approval of the Project, including
without limitation any appeal, except to the extent arising from the gross negligence or
willful misconduct of the City and/or its officials, officers, employees, and agents.
9. Post Conversion Indemnification. Following conversion of the crossing to a public
railway crossing, Saddleback shall defend, indemnify, protect, and hold harmless the City
against any third party claim, damages, or liability arising as a result of or related to the
use of the crossing for Church related, sponsored, organized, approved or managed
activities. Saddleback shall also defend, indemnify, protect and hold the City harmless
against any and all of the following: (a) any Application made by or at Saddleback's
request; (b) any agreements that Saddleback (or anyone claiming by or through
Saddleback) makes with a Third Person regarding the Project; (c) any workers
compensation claim or determination relating to any employee or contractor of
Saddleback; (d) any Prevailing Wage Action relating to this Agreement or the Project;
and (e) any Environmental Claim attributable to any action or failure to act by
Saddleback related to the Property, the Project, or the long term operation of the crossing
as a public railway crossing. Saddleback's indemnity obligations as set forth in this
section 9 (Post Conversion Indemnification) shall not apply to the extent the claim,
damages, or liability arises from negligent acts or willful misconduct of the City and/or
its officials, officers, employees, and agents.
9.1 Independent of Insurance Obligations. Saddleback's indemnification obligations
under this Agreement shall not be construed or interpreted as in any way
restricting, limiting, or modifying Saddleback's insurance or other obligations
under this Agreement. Saddleback's indemnity obligation to City under this
Agreement is independent of Saddleback's insurance and other obligations under
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this Agreement. Saddleback's compliance with its insurance obligations and
other obligations under this Agreement shall not in any way restrict, limit, or
modify Saddleback's indemnification obligations under this Agreement and are
independent of Saddleback's indemnification and other obligations under this
Agreement.
9.2 Survival of Indemnification and Defense Obligations. The indemnity and defense
obligations of Saddleback under this Agreement shall survive the expiration or
earlier termination of this Agreement, until any and all actual or prospective
Claims regarding any matter subject to an indemnity obligation under this
Agreement are fully, finally, absolutely and completely barred by applicable
statutes of limitations.
10. Insurance. If the Project is approved by the CPUC and the crossing is converted to a
public railway crossing, Saddleback shall maintain general liability and property
insurance on the Property. Saddleback shall maintain insurance which names and protects
the City as an additional insured for any claim on or associated with the property or the
public railway crossing.
10.1 Nature of Insurance. All Liability Insurance and Property Insurance policies this
Agreement requires shall be issued by carriers that: (a) are listed in the then
current "Best's Key Rating Guide—Property/Casualty—United States & Canada"
publication (or its equivalent, if such publication ceases to be published) with a
minimum financial strength rating of"A-" and a minimum financial size category
of "XI" (exception may be made for the State Compensation Insurance Fund
when not specifically rated); and (b) are authorized to do business in the State.
Saddleback may provide any insurance under a"blanket" or"umbrella" insurance
policy, provided that: (i) such policy or a certificate of such policy shall specify
the amount(s) of the total insurance allocated to the Properties and the Project,
which amount(s) shall equal or exceed the amount(s) required by this Agreement;
and (ii) such policy otherwise complies with this Agreement.
10.2 Policy Requirements and Endorsements. All insurance policies required by this
Agreement shall contain (by endorsement or otherwise) the following provisions:
10.2.1 Insured. Liability Insurance policies shall name the City as "additional
insured." Property Insurance policies shall name the City as a "loss
payee." The coverage afforded to the City shall be at least as broad as
that afforded to Saddleback regarding the Property and the crossing
and may not contain any terms, conditions, exclusions, or limitations
applicable to the City that do not apply to Saddleback.
10.3 Primary Coverage. Any insurance or self-insurance maintained by the City shall
be excess of all insurance required under this Agreement and shall not contribute
with any insurance required under this Agreement.
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10.4 Contractual Liability. Liability Insurance policies shall contain contractual
liability coverage, for Saddleback's indemnity obligations under this Agreement.
Saddleback's obtaining or failure to obtain such contractual liability coverage
shall not relieve the Saddleback from nor satisfy any indemnity obligation of the
Saddleback under this Agreement.
10.5 Deliveries to the City. Evidence of Saddleback's maintenance of all insurance
policies required by this Agreement shall be delivered to the City within thirty
(30) days of the CPUC approval of the Project.
10.5.1 No later than three (3) days before any insurance required by this
Agreement expires, is cancelled or its liability limits are reduced or
exhausted, Saddleback shall deliver to the City evidence of such
Party's maintenance of all insurance this Agreement requires. Each
insurance policy required by this Agreement shall be endorsed to state
that coverage shall not be cancelled, suspended, voided, reduced in
coverage or in limits, except after thirty (30) calendar days' advance
written notice of such action has been given to City by certified mail,
return receipt requested; provided; however, that only ten (10) days'
advance written notice shall be required for any such action arising
from non-payment of the premium for the insurance. Phrases such as
"endeavor to" and "but failure to mail such Notice shall impose no
obligation or liability of any kind upon the company" shall not be
included in the cancellation wording of any certificates or policies of
insurance applicable to the City pursuant to this Agreement.
10.6 Waiver of Certain Claims. Saddleback shall cause each insurance carrier
providing any Liability Insurance or Property Insurance coverage under this
Agreement to endorse their applicable policy(ies) with a Waiver of Subrogation
with respect to the City, if not already in the policy. To the extent that the
Saddleback obtains insurance with a Waiver of Subrogation, the Parties release
each other, and their respective authorized representatives, from any Claims for
damage to any Person or property to the extent such Claims are paid by such
insurance policies obtained pursuant to and in satisfaction of the provisions of this
Agreement.
10.7 No Claims Made Coverage. None of the insurance coverage required under this
Agreement may be written on a claims-made basis.
10.8 City Option to Obtain Coverage. During the continuance of an Event of Default
arising from the failure of Saddleback to carry any insurance required by this
Agreement, the City may, at its sole option, purchase any such required insurance
coverage and the City shall be entitled to immediate payment from the
Saddleback of any premiums and associated reasonable costs paid by the City for
such insurance coverage. Any amount becoming due and payable to the City
under this Section 10 that is not paid within fifteen (15) calendar days after
written demand from the City for payment of such amount, within an explanation
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of the amounts demanded, will bear interest from the date of the demand at the
rate of ten percent (10%) per annum or the Usury Limit, whichever is less. Any
election by the City to purchase or not to purchase insurance otherwise required
by the terms of this Agreement to be carried by Saddleback shall not relieve the
Defaulting Party of its obligation to obtain and maintain any insurance coverage
required by this Agreement.
10.9 Insurance Independent of Indemnification. The insurance requirements of this
Agreement are independent of the Parties' indemnification and other obligations
under this Agreement and shall not be construed or interpreted in any way to
satisfy, restrict, limit, or modify the Parties' indemnification or other obligations
or to limit the Parties' liability under this Agreement, whether within, outside, or
in excess of such coverage, and regardless of solvency or insolvency of the
insurer that issues the coverage; nor shall the provision of such insurance preclude
the City from taking such other actions as are available to it under any other
provision of this Agreement or otherwise at law or in equity.
10.10 Post Conversion Insurance. Following conversion City may incur additional
insurance costs associated with the operation of the crossing as a public crossing
which may include but is not limited to Railroad Quiet Zone Liability insurance
or related supplemental insurance. Saddleback shall reimburse City for costs
incurred associated with this additional insurance coverage.
11. Attorneys' Fees. In the event that any action or proceeding, including arbitration, is
commenced by either the City or Saddleback 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.
12. Jurisdiction and Venue. This Agreement is executed and is to be performed in the City of
San Juan Capistrano, Orange County, California, and any action or proceeding brought
relative to this Agreement shall be heard in the appropriate court in the County of
Orange, California. The City and Saddleback each consent to the personal jurisdiction of
the court in any such action or proceeding.
13. Severability. If any term or provision of this Agreement is found to be invalid or
unenforceable, the City and Saddleback 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.
14. Interpretation/ Incorporation by Reference. The headings of each Section of this
Agreement are for the purposes of convenience only and shall not be construed to either
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61147.30011\31282521.8
expand or limit the express terms and language of each Section. The exhibits attached
hereto are hereby incorporated by reference as though fully set forth in this Agreement.
15. No Guarantee of Approval of the Revenue Sharing Agreement. Saddleback understands
and agrees that nothing in this Agreement shall be deemed or construed to constitute any
guarantees or promises that the Revenue Sharing Agreement will be approved, certified
or adopted. In the event that the Revenue Sharing Agreement is not approved,
Saddleback understands and agrees that Saddleback shall not be due any refund of Fees
and Costs already paid or deposited with the City, other than as set forth in Section 2 of
this Agreement.
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.
17. Notices. Notices, deposits and any other documents or material required to be or
otherwise given pursuant to this Agreement shall be sent to the following:
If to City:
City Manager San Juan Capistrano City Attorney
City of San Juan Capistrano Best Best& Krieger LLP
32400 Paseo Adelanto 655 W. Broadway, 15th Floor
San Juan Capistrano, CA 92675 San Diego CA 92101
BSiegel@sanjuancapistrano.org Jeff.Ballinger@bbklaw.com
If to Saddleback:
Steve Johnson
Saddleback Church
1 Saddleback Parkway
Lake Forest, CA 92630
SteveJ@saddleback.com
Notices given pursuant to this Agreement shall be deemed received as follows:
If sent by United States Mail - three (3) calendar days after deposit into the
United States Mail, first class postage prepaid.
If by electronic mail - upon electronic transmission.
If by express courier service or hand delivery - on the date of receipt by the receiving
Ply.
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61147.30011 X31282521.8
The addresses for notices set forth in this Section 14 may be changed upon written notice
of such change to either the City or Saddleback, as appropriate.
IN WITNESS WHEREOF, the City and Saddleback have executed this Agreement as the
dates set forth below.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE
TO
DEPOSIT AND REIMBURSEMENT AGREEMENT
BETWEEN
CITY OF SAN JUAN CAPISTRANO
AND SADDLEBACK CHURCH
SADDLEBACK VALLEY COMMUNITY THE CITY OF SAN JUAN CAPISTRANO,
CHURCH a California general law city and municipal
corporation
By: Saddleback Church City of San Juan Ca.'. . .�
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By: By:
-:iegel
Date: Z City Manager
Date: q-5"I
ATTESTED TO: ATTESTED T :
By: / _ � By: Vim ,
Mia`Morris 1114 '
City Clerk
APPROVED AS TO FORM:
Best Best& Krieger LLP
By:
Jeffrey S. Ballinger
City Attorney
11
61147.30011\31282521.8
SIGNATURE PAGE
TO
DEPOSIT AND REIMBURSEMENT AGREEMENT
BETWEEN
CITY OF SAN JUAN CAPISTRANO
AND SADDLEBACK CHURCH
SADDLEBACK VALLEY COMMUNITY THE CITY OF SAN JUAN CAPISTRANO.
CHURCH a California general law city and municipal
corporation
By: Saddleback Church City of San Juan Ca
Date:
�� m' ePcl
i � City Manager
Date: q-S"tg
ATTESTED TO: ATTESTED TO:
/
By: / �,�.� By:
Maria Moms
City Clerk
APPROVED AS TO FORM:
Best Best& Krieger LLA
' r
By ;3Je red Ballitrier
City Attorney •
11
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