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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 61147.30011\31282521 8 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. 61147.30011\31282521 8 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 3 61147 30011\31282521.8 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 4 61147.30011\31282521.8 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 5 61147.30011\31282521 8 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. 6 61147.30011\31282521 8 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 7 61147 30011\31282521.8 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 8 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. 9 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] 10 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.'. . .� �. �/75��'! ' 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 61 147 30011012$2521 8 a. EXHIBIT A TO DEPOSIT AND REIMBURSEMENT AGREEMENT BETWEEN CITY OF SAN JUAN CAPISTRANO AND SADDLEBACK VALLEY COMMUNITY CHURCH 4 JJ I i«. , iir r- trai 1 t A \ -,0•00" ads.' ;If,S 't .1(4 111.11111111 1 kf-ifri)s-* t 1 • 1 f ' ( ' Ii 110 iik # s. w• ' 1, ' t •- s 4„ .., ' 1t ,* ` . . ' iiiri ' ii -. �- ,_ wr. 1 61147.30011\31282521 8