HomeMy WebLinkAboutC-5230 - Deposit Agreement for Costs Incurred [Lot merger No. LM2011-12 to Merge 2808 and 2812 Ocean Blvd. (PA2011-141)]DEPOSIT AGREEMENT BETWEEN THE
CITY OF NEWPORT BEACH AND THE JOHN GUIDA TRUST AND THE JULIA GUIDA
TRUST FOR COSTS INCURRED
(Lot Merger No. LM2011 -12 to Merge 2808 and 2812 Ocean Boulevard (PA2011 -141))
THIS AGREEMENT ( "Agreement ") is made and entered into by and between the City of
Newport Beach, a municipal corporation of the State of California, hereinafter referred to as
"CITY," and the John Guida Trust and the Julia Guida Trust, hereinafter referred to as
"APPLICANT."
WHEREAS, APPLICANT submitted an application to CITY for approval of various
discretionary matters, including Lot Merger No. LM2011 -022 and environmental assessments; and
On June 26, 2012, the City Council approved Lot Merger No. LM2011 -022. Pursuant to
that approval, the APPLICANT is required to indemnify, defend and hold harmless City, its City
Council and others as a result of this approval.
On August 15, 2012, a Petition for Writ of Mandate challenging this decision was filed in
the Orange County Superior Court as Case No. 30- 2012 - 00591498- CU- TT -CXC ( "LAWSUIT ").
NOW, THEREFORE, in consideration of the promises and agreements hereinafter made and
exchanged, the parties agree as follows:
1. PAYMENT
APPLICANT agrees to reimburse CITY for its expenses and costs defending itself
against the LAWSUIT as follows:
A. Within ten (10) days following execution of this Agreement by CITY,
APPLICANT will make an initial payment to CITY in the amount of Twenty - Thousand
Dollars ($20,000.00) (hereinafter the "Amount of Deposit"). The parties acknowledge that
the Amount of Deposit will be used to reimburse the City for the professional legal services
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incurred as a result of the LAWSUIT. If, at any time the Amount of Deposit is less than
One Thousand Dollars ($1,000), APPLICANT shall replenish the Amount of Deposit in
amount equal to the amount paid by City for professional services funded by this Agreement
within ten (10) days' notice from CITY. APPLICANT acknowledges that the amount
referenced in this Agreement is the CITY's best estimate of the costs for the services
described herein, and that the actual cost of said services may be higher. In the event that
the actual cost of said services exceeds the estimated costs, APPLICANT agrees to pay the
actual cost within ten (10) days after receiving CITY's invoice for same. In the event the
actual costs are less than the estimated costs, CITY will refund the difference between the
actual and estimated costs.
B. A late payment fee of ten percent (10 %) will be assessed if CITY receives
any payment later than the thirtieth (301h) day after that payment is due but unpaid. In
addition, one and one -half percent (1' /2) interest per month shall be added for each month the
payment hereunder is due but unpaid.
2. EXCLUSIVE CONTROL BY CITY
CITY will maintain exclusive control the performance of legal services described
herein. Nothing in this Agreement:
A. Shall be deemed to establish an attorney - client relationship between CITY
and APPLICANT.
B. Shall be deemed to limit, in any respect whatsoever, CITY's sole authority to
direct and control the City's action and response to LAWSUIT.
C. Shall be deemed to impose any liability on CITY different from any liability
as may otherwise be established by law.
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3. NOTICES
Any notices, certificates, or other communications hereunder shall be given either by
personal delivery to APPLICANT's agent or to CITY as the situation shall warrant, or by enclosing
the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal
Service, to the addresses specified below; provided that CITY and APPLICANT, by notice given
hereunder, may designate different addresses to which subsequent notices, certificates or other
communications will be sent:
TO CITY:
City of Newport Beach
ATTN: Aaron C. Harp
P.O. Box 1768
3300 Newport Blvd.
Newport Beach, CA 92658 -8915
5. MODIFICATION
TO APPLICANT:
The John Guida Trust & The Julia Guida Trust
8 Old Course Drive
Newport Beach, CA. 92660
No waiver or modification of any language in this Agreement shall be valid unless in
writing and duly executed by both parties.
6. INTERPRETATION OF THIS AGREEMENT
The language of all parts of this Agreement shall in all cases be construed as a
whole, according to its fair meaning, and not strictly for or against any of the parties. If any
provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be
unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining
covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent
upon any other unless so expressly provided here. As used in this Agreement, the masculine or
neuter gender and singular or plural number shall be deemed to include the other whenever the
context so indicates or requires. Nothing contained herein shall be construed so as to require the
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commission of any act contrary to law, and wherever there is any conflict between any provision
contained herein and any present or future statute, law, ordinance or regulation contrary to which
the parties have no right to contract, then the latter shall prevail, and the provision of this
Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to
bring it within the requirements of the law.
7. DUPLICATE ORIGINAL
The original of this Agreement and one or more copies hereto have been prepared
and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the
date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed
an original instrument as against any party who has signed it.
8. ATTORNEY'S FEES
In the event suit is brought by either party to construe, interpret and/or enforce the
terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear
its own attorney's fees.
9. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of the
State of California.
10. SIGNATORIES
Each undersigned represents and warrants that its signature hereinbelow has the
power, authority and right to bind their respective parties to each of the terms of this Agreement,
and shall indemnify CITY fully for any injuries or damages to CITY in the event that such authority
or power is not, in fact, held by the signatory or is withdrawn.
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11. ENTIRETY
This Agreement, and the attached exhibits, contains the entire agreement between the
parties respecting the subject matter of this Agreement and supersedes all prior understanding and
agreements whether oral or in writing between the parties respecting the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
and through their authorized officers on A v � vS 4 Z '( , 20 1 1-
APPROVED AS TO FORM:
CITY ATT RNEY'S OFFICE
Date:
By:
Leonie Mulvihill
Assistant City Attorney
ATTEST:
Date:
CITY OF NEWPORT BEACH,
A California ffnicipa l corporation
Date: YY j
By: off
Aaron C. Harp
City Attorney
The John Guida Trust
Date: F —,Z �/-/
y By:
Leilani I. Brown kTn Guida, Trustee of the
City Clerk ohn Guida Trust
�$
.,..--,.._ The Julia Guida Trust
Date:— c
I
\\' r
Juli Guida, Trustee of the
Julia Guida Trust
MG2,`1ZO
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