HomeMy WebLinkAboutA7240 - BRANDENBURG REV TR, CUNNINGHAM FAM TR, ET AL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
This Settlement Agreement and Mutual General Release(this"Agreement")is entered into
as of January 17, 2019 between and among the following parties: Brandenburg Revocable Trust
dated September 19, 1993 and Diane M. Brandenburg, individually and as trustee of the
Brandenburg Revocable Trust dated September 19, 1993 (collectively "Brandenburgs"), Dennis
A. Cunningham and Andrea C. Cunningham, individually and as trustees of the Cunningham
Family Trust dated December 14,2000(collectively,"Cunninghams"),Bond Safeguard Insurance
Company, an Illinois corporation ("Bond Safeguard"), North First Street Properties, LP, a
California limited partnership ("North First"), Palm Springs Modem Homes VI, LLC, a
California limited liability company ("PSM"),GRIT DEVELOPMENT,LLC,a California limited
liability company, formerly named Wessman Holdings, LLC, a California limited liability
company ("Grit"), GRIT PS CONSTRUCTION, INC.,a California corporation, formerly named
Wessman Development Company, Inc. ("GPSC"), John Wessman, an individual ("Wessman"),
Palm Springs Promenade, LLC,a California limited liability company ("PSI"'),the City of Palm
Springs, a California charter city and municipal law corporation ("City" or "City of Palm
Springs"), the City Council of City of Palm Springs ("City Council"). The parties to this
Agreement are referred to individually as Party and jointly as Parties.
A. RECITALS
1. Pursuant to its Operating Agreement, PSM acquired real property consisting of
approximately fourteen (14) acres at the southwest comer of Tramway and Highway 1 I I in the
City of Palm Springs, California("Property"). As part of the entitlement to develop said Property
into the residential project known as Pedregal(hereinafter,the"Project") PSM entered into a May,
25,2007 Subdivision Improvement Agreement(the "SIA") for development of the Project.
2. Pursuant to the SIA, PSM agreed to construct and dedicate to City certain streets,
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Brandenburg—Cunningham v Wessman Settlement 1.17 19
easements and other improvements and facilities (collectively, the "Improvements") in
consideration for City's approval of a final subdivision map permitting development of Tract Map
No. 33162.
3. As security for the performance of PSM's obligations under the SIA, PSM, as
principal, obtained certain performance and payment bonds(the"Bonds") from Bond Safeguard.
As security for its obligations under the Bonds, Bond Safeguard obtained written indemnities(the
Indemnities"), pursuant to which Brandenburgs and Cunninghams agreed to indemnify and save
Bond Safeguard harmless from and against every claim, demand, liability, cost, charge, suit,
judgment and expense which Bond Safeguard might incur in consequence of having issued the
Bonds, which Indemnities are as follows:
a. A General Agreement of Indemnity dated as of June 18, 2007,executed by PSM;
b. A General Agreement of Indemnity dated as of June 18,2007, executed by L.
Brandenburg and D. Brandenburg as Trustees of the Brandenburg Trust, and D. Cunningham and
A. Cunningham as Trustees of the Cunningham Trust;
C. A General Agreement of Indemnity dated as of June 18.2007, executed by L.
Brandenburg& D. Brandenburg,D. Cunningham,and A. Cunningham as individuals;
d. A General Agreement of Indemnity, undated, executed by D. Cunningham and A.
Cunningham on or about June 14,2007; and
e. General Agreement of Indemnity" undated, executed by D. Cunningham and A.
Cunningham as Trustees"of the Cunningham Trust on or about June 14,2007.
4. PSM was unable to complete the Improvements to the Project, and ownership of
the land underlying the Project was subsequently transferred to the Project lender, Rabobank.
5. Sometime in the month of March,2012, Grit acquired land underlying the Project
from Rabobank.
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Brandenburg—Cunninghamv Wessman Settlement 1.17.19
6. On July 25, 2012, Grit and City entered into a "Reimbursement Agreement"
pursuant to which Grit was authorized to bring a claim on behalf of the City against Bond
Safeguard for performance of its obligations under the Bonds, to wit, construction of the
Improvements at no cost to City,or payment to City of the costs of constructing the Improvements.
7. City made demand for same by letter on or about July 25, 2012.
8. On or about August 15, 2012, Bond Safeguard filed a Complaint for Declaratory
Relief in the United States District Court for the Northern District of California against
Brandenburg, Cunningham, and others in an action titled Bond Safeguard Insurance Company,
plaintiff, vs. Lee H. Brandenburg, et al., defendants,Case No. CV 12-2485(the"Bond Suit"). The
parties to the Bond Suit filed various cross claims and third party claims therein, and the parties
sued denied the allegations of the claims asserted against them.
9. On January 17, 2013,North First filed a Petition for Writ of Mandate against City,
the City Council, WDC, and PSP in the California Superior Court, Riverside County, Case No.
INC 1300421 (the"CEQA Suit").
10. On or about September 23,2013,the Bond Suit and the CEQA Suit were resolved,
and the parties to the Bond Suit entered into a settlement agreement wherein Brandenburg paid the
sum of one million four hundred thousand dollars ($1,400,000) (the "Original Settlement Sum")
to other parties in satisfaction of the Bonds,and the Bonds and Indemnities were released.
11. On January 13,2014, Brandenburg submitted a claim to Cunningham for equitable
contribution under the Indemnities, plus attorney's fees and costs, and other claims(collectively,
the"Equitable Contribution Claims").
12. On March 24, 2014, in recognition of the costs and risks of further litigating the
Equitable Contribution Claims, Cunninghams and Brandenburgs entered into a Settlement and
3 amndenbur —Cuminiiham v.Wenmw Settlement 1.17.19 g
Release Agreement, pursuant to which Cunninghams paid the amount of five hundred thousand
dollars($500,000)to Brandenburgs as Cunninghams' equitable share of contribution towards the
Original Settlement Sum paid by Brandenburgs under the Settlement Agreement as co-guarantors
of the Bonds.
13. Pursuant to the terms of the Reimbursement Agreement, the Original Settlement
Sum obtained from Brandenburgs was deposited into an escrow account with First American Title
Company, 74770 Highway 11 I, Suite 101, Indian Wells, CA 92210, Escrow No. RIW-4500781
(DP) (the "Bond Money Escrow Account"). After distribution of a portion of the Original
Settlement Sum, the amount remaining as of the date hereof in the Bond Money Escrow Account
is one million three hundred fifty-six thousand eight hundred sixty-one dollars and fifty-three cents
($ 1,356,861.53)(the "Remaining Bond Money").
14. On or about March 31, 2016, Brandenburgs filed a claim for damages with City,
seeking the return of the Original Settlement Sum and also seeking other damages.
15. On or about April 26, 2016, Cunninghams filed a claim for damages with City
seeking the return of five hundred thousand dollars($500,000)out of the Original Settlement Sum
as reimbursement for costs incurred by Cunninghams in resolving the Equitable Contribution
Claims described in Recitals l I and 12 above, and also seeking other damages.
16. On June 6, 2016, City rejected Brandenburgs' claim for damages.
17. On June 7, 2016, City rejected Cunninghams' claim for damages.
18. On December 2,2016, Brandenburgs filed a Complaint with the Superior Court of
the State of California, Riverside County (Case No. PSC-1606147) against various parties to the
Settlement Agreement and against Richard Meaney,an individual ("Meaney"), seeking rescission
of the Settlement Agreement and other damages (the"Brandenburg Suit").
19. On December 5, 2016,Cunninghams filed a Complaint with the Superior Court of
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anrdenburg—Cunningham v.Wessman Settlement 1-1719
the State of California, Riverside County (Case No. PSC-1606175) against various parties to the
Settlement Agreement and against Meaney, seeking rescission of the Settlement Agreement and
other damages(the"Cunningham Suit").
20. On or about July 10, 2017, the Brandenburg Suit and the Cunningham Suit were
consolidated with Case No. PSC-1606147 being designated as the master case file, and both are
hereinafter collectively referred to as the"Subject Suit."
21. On December 28, 2017, Lee H. Brandenburg passed away, leaving Diane M.
Brandenburg as the sole Trustee of the Brandenburg Revocable Trust dated September 19, 1993.
B. AGREEMENTS
1. The Parties incorporate herein the recitals set forth in Paragraphs 1-21 above as
though fully set forth herein.
2. Application for Reversion to Acrenee. As soon as practicable after the effective
date hereof,Grit agrees to apply for a reversion to acreage of the entire Property,Riverside County
Tract Map No. 33162, (the "Reversion Application"). Such application shall conform to the
requirements of the State of California Government Code, Title 7, Division 2, Chapter 6,
Reversions and Exclusions (Sections 66499.11 through 66499.29) and the City of Palm Springs
Municipal Code, Title 9, Chapter 9.66 Reversions (Sections 9.66.010 through 9.66.110) (unless
waived by City), and shall be accompanied by payment of all applicable City fees (with costs
allocated as set forth in Paragraph 4 of this Section B below, and provided that the fees charged
shall be no greater than those charged by the City to other developers for the same services).
3. Conditions to Reversion to Aereaee and Allocation of Costs. Grit and City agree
that the site stabilization measures required as a condition of the City's approval of the Reversion
to Acreage (as defined below) shall be limited to the "Site Stabilization Measures" set forth in
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Brandenburg—Cunningh=v.Wmmon Settlement 1.17 19
Exhibit A attached hereto, which shall be performed prior to recordation of the new parcel map
formalizing the Reversion to Acreage as defined below(the"New Parcel Map"). The costs of the
Site Stabilization Measures (the "SSM Costs") shall be paid out of the Remaining Bond Money
pursuant to the procedures set forth in Paragraph 10 of this Section B below, subject to allocation
between Grit, Cunninghams and Brandenburgs as follows: Twenty-Five Percent (251/6) of the
SSM Costs shall be allocated to Grit(the"Grit Share of SSM Costs"), Forty-Eight and Two Tenths
Percent (48.2%) of the SSM Costs shall be allocated to Brandenburgs (the "Brandenburgs Share
of SSM Costs") and Twenty-Six and Eight Tenths Percent (26.8%) of the SSM Costs shall be
allocated to Cunninghams (the "Cunninghams Share of SSM Costs").
4. Processine of Reversion to Acreage and Allocation of Costs. Upon City's receipt
of a complete Reversion Application by Grit and payment of applicable fees, Grit and City agree
to diligently and in good faith process the Reversion Application to formal completion as specified
in the Government Code and the City Code Sections referenced above (the "Reversion to
Acreage"), The costs of the Reversion to Acreage (the "RTA Costs") shall be paid out of the
Remaining Bond Money pursuant to the procedures set forth in Paragraph 10 of this Section B
below, subject to allocation between Grit, Cunninghams and Brandenburgs as follows: Twenty-
Five Percent(25%) of the RTA Costs shall be allocated to Grit (the "Grit Share of RTA Costs")
Forty-Eight and Two Tenths Percent(48.2%)of the RTA Costs shall be allocated to Brandenburgs
(the "Brandenburgs Share of RTA Costs") and Twenty-Six and Eight Tenths Percent(26.8%) of
the RTA Costs shall be allocated to Cunninghams (the"Cunninghams Share of RTA Costs").
5. Fundine of SSM Costs and RTA Costs. Grit initially authorizes Diane C. Blasdel
and Ernest O. Vincent, acting jointly, to execute and submit (with all required back-up
documentation)all Payment Demands(as defined in the Reimbursement Agreement)on behalf of
Grit for payment of(or reimbursement for) SMM Costs and RTA Costs actually incurred for work
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Bmndenbmg—Cunninghamv Wmmmt Settlement 1.1719
performed to the persons invoicing for same(but also including pre-payment of City fees required
in connection with the Reversion to Acreage). The Parties, excluding City, hereby authorize
"Escrow Holder" to satisfy all Payment Demands for SMM Costs and/or RTA Costs upon the
dismissal with prejudice of the City and City Council with respect to the Subject Suit,as provided
by Paragraph 9 below. In the event of the death or incapacity of Diane C. Blasdel or Ernest 0.
Vincent, Grit (as to Blasdel) and Cunninghams (as to Vincent) may choose a replacement for
Ernest 0. Vincent or Diane C. Blasdel.
6. Assistance with Processine for Reversion to Acreage. Cunninghams agree to pay
for the services of Ernest 0.Vincent to assist Grit with the Reversion Application, if needed. Such
services shall include: (a) arranging for the engineering contract with MSA Consulting; (b)
monitoring the progress of the Reversion Application and reporting to Grit; (c) attending City
Planning Commission hearings and City Council hearings together with counsel for Grit; and (d)
assisting with the resolution of any casement/right-of-way or other issues relating to the Reversion
Application.
7. Performance of Site Stabilization. Dennis A. Cunningham agrees to manage and
coordinate the Site Stabilization Measures. Such management and co-ordination shall include (a)
arranging for the contract with Tri-Star Contracting to complete the Site Stabilization Measures;
(b) periodically visiting the Project for the purpose of inspecting the subcontractor's progress
during the process of completing the Site Stabilization Measures; and (c)arranging for City final
inspection and sign-off of the completed Site Stabilization Measures. Mr. Cunningham's services
in managing and coordinating the Site Stabilization Measures shall be at no cost.
8. Reversion Cost Exclusion. Bond Safeguard has no obligations or responsibilities
for any of the costs arising out of or related to the reversion to acreage.
9. Stipulation for Release of Funds and Dismissal of City. In consideration of all
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Bmndcnburg—Cummngb=v Wesvnon Seararncm 1..17.19
of the mutual promises and covenants set forth herein, no later than ten (10)days after recordation
of the New Parcel Map, Brandenburg and Cunningham shall file with the clerk of the Court,
Requests for Dismissal of Action with prejudice as to Bond Safeguard,the City and City Council
from the Subject Suit.Concurrent with these Requests for Dismissal, Diane C. Blasdel and Ernest
O. Vincent shall file a stipulation executed by all Parties apart from Bond Safeguard,the City and
City Council, and a draft judicial order directing First American Title Company to release the sum
of fifty thousand dollars($50,000)from the Remaining Bond Monies to the City of Palm Springs.
Said order shall also instruct First American Title, and City and City council hereby agree, that
after dismissal of the City and City Council as set forth above, and after disbursement to the City
of Palm Springs of the fifty thousand dollars ($50,000), the City of Palm Springs shall have no
further right, title, claim or interest in or to the Remaining Bond Monies, and that any future
instruction to First American Title shall be jointly authorized and executed by Grit, Brandenburg
and Cunningham. In the event of the death or incapacity of Diane C. Blasdel or Ernest O.Vincent,
Grit (as to Blasdel) and Cunninghams (as to Vincent) may choose a replacement for Ernest O.
Vincent or Diane C. Blasdel.
10. Disbursement of Remainine Bond Money. After the disbursement referenced
above in Paragraph 9 is made to the City of Palm Springs, and the City of Palm Springs has been
dismissed from the Subject Suit, Grit, Brandenburg and Cunningham shall execute a joint
instruction to First American Title, instructing First American Title to distribute the funds left in
Remaining Bond Money as follows: (a) the amount of seven hundred thirty-nine thousand two
hundred eighty-five thousand dollars and seventy-one cents($739,285.71)(less the amounts of the
Brandenburgs Share of SSM Costs and the Brandenburgs Share of RTA Costs,as each are defined
in Paragraphs 3 and 4 above) to Brandenburgs; (b) four hundred ten thousand seven hundred
fourteen dollars and twenty-nine cents($410,714.29_(less the amounts of the Cunninghams Share
Brandenburg—Cmmmgham v Wessman Sc;d=cn1 L 17 19 8
of SSM Costs and the Cunninghams Share of RTA Costs,as each are defined in Paragraphs 3 and
4 above)to Cunninghams; and(c)the balance,after payment to Brandenburgs and Cunninghams,
to Grit. Grit, Brandenburgs and Cunninghams hereby initially, and respectively, appoint and
authorize Diane C. Blasdel, William B. Baron and Ernest O. Vincent,acting jointly,to execute the
instructions to First American Title, confirming to First American Title the amounts of the
Brandenburgs,the Cunninghams and Grit's Share of SSM and RTA Costs and the net amounts to
be distributed to Brandenburgs, Cunninghams and Grit. As soon as practicable after the
distribution of all funds pursuant to this Paragraph 10, all Plaintiffs in the Subject Suit shall file
with the Court Requests for Dismissal of Action from the Subject Suit with prejudice against all
Defendants in the Subject Suit, except as follows: (a) City and City Council, who shall be
dismissed pursuant to the terms and conditions of Paragraph 9 of this Section B above; and (b)
Meaney, provided that all Plaintiffs in the Subject Suit and Meaney have reached a settlement in
the Subject Suit.
11. No Admissions by Settling. By entering into this Agreement, no party hereto admits
that the claims of the other made in the Bond Suit, the CEQA Suit and the Subject Suit
(collectively, the "Claims") were or are valid or meritorious, and neither the City nor the City
Council admits or acknowledges that either the Reimbursement Agreement or the Settlement of
the CEQA was not void ab initio by operation of law. Each Party hereto has in the past denied
and continues to deny the claims, assertions, allegations, and contentions of the others, and this
Agreement and the underlying settlement are strictly for the purpose of compromising disputes.
No payments made or acts performed pursuant to the terms of this Agreement shall be seen as an
admission of liability on behalf of any of the Parties.
12. Retention of Jurisdiction. Notwithstanding the filing of Dismissals in the Subject
Suit, the Court shall retain jurisdiction to enforce the provisions of this Agreement pursuant to
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amndenburg—Cunningham v Wesman Soul mein 1.17 19
California Code of Civil Procedure Section 664.6.
13. Each Party Bears His/Her/Its Own Fees and Costs. Except for disbursement to
City pursuant to Paragraph 9 of this Section B above, each Party agrees to bear his/her/its own
costs and attorneys' fees concerning the claims and the settlement represented by this Agreement.
In the event of full performance of this Agreement, the Parties waive the right to have any
judgments entered pursuant to this Agreement,except as specifically set forth herein.
14. Mutual Release.
(a)With Respect to all Parties. Upon the execution of this Agreement,but except for
future performance under this Agreement,each Party does hereby release all other Parties and the
officers, directors, partners, shareholders, managers, affiliates, heirs, employees, representatives,
agents,assignees,subsidiaries, divisions, sub-divisions, parents, members, attorneys, accountants
and insurers of each, from now until the end of time from any and all claims,demands and causes
of action directly or indirectly related to the Claims whether or not such claims, demands and
causes of action are known or suspected to exist.
(b)With Respect to All parties except City and City Council. Notwithstanding the
terms and provisions of sub-paragraph 14 (a) immediately above, without any further action
required by any Party, for good and valuable consideration,the receipt and sufficiency of which is
hereby acknowledged, each Party (except for City and City Council), for itself and its current,
former and future agents, representatives, attorneys, insurers,successors and assigns(individually
and collectively, the "Releasors"), hereby releases and promises never to sue any of the other
Parties to this Agreement and their current, former and future directors, officers, agents,
representatives, attorneys, insurers, successors and assigns (individually and collectively, the
"Releasces"), from and with respect to any and all claims, liabilities, debts, agreements,
obligations,damages,and causes of action whatsoever, including attorneys' fees and costs, in law
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Brandenburg—Cunningham v Weisman Settlement 1,1719
or in equity, known or unknown, suspected or unsuspected,asserted or unasserted, which against
the Releasees, the Releasors ever had, now have,or hereafter may have by reasons or any matter,
cause,or thing whatsoever arising out of or relating to the Bonds,the Subject Suit and the Claims.
Nothing herein shall be construed to release and/or limit the Parties' performance obligations under
this Agreement.
(c) With Respect to Bond Safeguard, City and City Council Only.
Notwithstanding the terms and provisions of sub-paragraph 14 (a) above, without any further
action required by Bond Safeguard,City or City Council, for good and valuable consideration,the
receipt and sufficiency of which is hereby acknowledged, Bond Safeguard,City and City Council
(collectively, the "Bond and City Parties"), for themselves and their current, former and future
agents, representatives, attorneys, insurers, successors and assigns (individually and collectively,
the `Bond and City Releasors"), hereby releases and promises never to sue any of the Bond and
City Parties and their current, former and future directors, officers, agents, representatives,
attorneys, insurers, successors and assigns (individually and collectively, the "Bond and City
Releasees"),from and with respect to any and all claims, liabilities,debts,agreements,obligations,
damages,and causes of action whatsoever, including attorneys' fees and costs, in law or in equity,
known or unknown,suspected or unsuspected,asserted or unasserted,which against the Bond and
City Releasees,the Bond and City Releasors ever had,now have,or hereafter may have by reasons
or any matter, cause,or thing whatsoever arising out of or relating to the Bonds,the Subject Suit
and the Claims. Nothing herein shall be construed to release and/or limit the Parties' performance
obligations under this Agreement.
15. Waiver.The Parties acknowledge that they may hereafter discover facts different from
or in addition to those now known or believed to be true regarding the subject matter of the
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amndcnburg—Cunningham v Wmman Sculcmem 1 17.19
Disputes and agree that this Agreement and the releases herein shall remain in full force and effect
from now until the end of time notwithstanding the existence of any such different or additional
facts. In this connection, the Parties specifically waive the provisions of California Civil Code
Section 1542 which provide as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR."
16. Assignment. Except as may be specifically set forth herein, the Parties represent
and warrant that they have not assigned,granted,sold or otherwise transferred to persons or entities
not named herein any of the claims, demands or causes of action which are being released or
forgiven herein and they agree to indemnify, defend and hold harmless any Party who must
respond to and/or defend any such claim, demand or cause of action which has been assigned,
granted, sold or otherwise transferred.
17. Indenendent Investigation. The Parties acknowledge that they have entered into
this Agreement in reliance on their own independent investigations and analysis of the facts
underlying the subject matterof this Agreement and that no representations,warranties or promises
of any kind have been made,directly or indirectly,to induce them to execute this Agreement other
than those which are expressly set forth herein.
18. Reliance on Advice of Indenendent Counsel. The Parties acknowledge and
represent each to the other, that they are executing this Agreement after having received from
independent legal counsel of their own choosing legal advice as to their rights hereunder and the
legal effect thereof.
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Bmndenbmg—Cwnirgh=v.Wcssman Settlemmi 1.17 19
19. Amendment. No supplement, modification, waiver or termination of this
Agreement shall be binding or enforceable unless executed in writing by the Party to be bound
thereby.
20. Choice of Law.This Agreement is entered into in the State of California and shall
be interpreted and governed by the laws of the State of California.
21. Attorneys' Fees. The prevailing party in any legal proceedings to interpret or
enforce this Agreement shall be entitled to an award, against the non-prevailing party, of
reasonable attorneys' fees and costs incurred by the prevailing party in such proceedings.
22. Construction. This Agreement is the product of mutual negotiation and shall not
be construed against any Party. It shall be construed without regard to the identity of the person(s)
who drafted it as if all Parties had jointly prepared this Agreement. It shall be deemed their joint
work product and each and every provision of this Agreement shall be construed as though all of
the Parties hereto participated equally in the drafting hereof. Any uncertainty or ambiguity shall
not be interpreted against any one Party. As a result of the foregoing,any rule of construction that
a document is to be construed against the drafting Party shall not be applicable.
23. Counterparts. This Agreement may be executed in one or more separate
counterparts. When the counterparts have been executed by all of the Parties hereto and their
counsel,this Agreement shall become effective,and the counterparts shall together constitute one
document. The Parties agree that facsimile or PDF signatures on this Agreement shall be deemed
original, binding signatures for all purposes.
24. Confidentiality. Each of the Parties agrees to keep the terms and conditions of
the settlement made pursuant to this Agreement,and any and all information relating to the subject
matter of the Claims,confidential,and agrees not to discuss same with any third party,except with
such Party's attorneys, accountants, lenders and other consultants, on a need-to-know basis, and
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Bmndenbing—CLnamgham v Weseman Settlement 1.17 19
except as may be required pursuant to any applicable laws (including, but not limited to,the legal
obligation of any party pursuant to subpoena and/or or judicial proceeding).
READ CAREFULLY BEFORE SIGNING
SO AGREED:
BOND SAFEGUARD INSURANCE
COMPANY
By:
Its:
BRANDENBURG REVOCABLE TRUST
DATED SEPTEMBER 19, 1993
By:
DIANE M. BRANDENBURG,Trustee
DIANE M. BRANDENBURG, individually and
as trustee of the Brandenburg Revocable Trust
dated September 19, 1993
14
Bmndenburg—Cuninomm v Wessman Settlement 1.17.19
except as may be required pursuant to any applicable laws(including, but not limited to, the legal
obligation of any party pursuant to subpoena and/or or judicial proceeding).
READ CAREFULLY BEFORE SIGNING
SO AGREED:
BOND SAFEGUARD INSURANCE
COMPANY
By:
Its:
BRANDENBURG REVOCABLE TRUST
DATED SEPTEMBER 19, 1993
By:
DIANE M. BRANDENBURG,Trustee
1�y�41
DIANE M. B BURG, individually
as trustee of the Brandenburg Revocabl
dated September 19, 1993
sltr
14
Brsndwburg—Cwminghamv.Wm SeWemprt1.17.19
except as may be required pursuant to any applicable laws(including, but not limited to,the legal
obligation of any party pursuant to subpoena and/or or judicial proceeding).
READ CAREFULLY BEFORE SIGNING
SO AGREED:
BOND SAFEGUARD INSURANCE
COMPANY
By.
Jeremy T.Sentman
Its: Senior Vice President,Surety Claim Counsel
BRANDENBURG REVOCABLE TRUST
DATED SEPTEMBER 19,1993 ,
By:
DIANE M BRANDENBURG,Trustee
DIANE M.BRANDENBURG, individual! and
the`Bran enburg Revocable Trust
dated September 19, 1993
14
BnMen6mg-OxmingMm v.Wesvnen SealaaW 1.17.19
NORTH FIRST STREET PROPERTIES, LP,
a California limited partnership
By: NSFP Management, LLC,
a California limited liability company
Its: General Partner
Its: Manager
DENNIS A. CUNNINGHAM, as an individual
and as Trustee of The Cunningham Family Trust
dated December 14, 2000
ANDREA C. CUNNINGHAM, as an individual
and as Trustee of The Cunningham Family Trust
dated December 14, 2000
PALM SPRINGS MODERN HOMES VI
LLC,a California limited liability company
By: _
Dennis A. Cunningham
Its: Authorized Representative
15
Bruwkn"—Cutmhglum v.Wesman Sealema t 1.IT19
NORTH FIRST STREET PROPERTIES, LP,
a California limited partnership
By:NSFP Management, LLC,
a California limited liability company
Its: General Partner
By:
Its: Manager
ENNIS A. CUNNINGPAM, as an individual
and as Trustee of The Cunningham Family Trust
dated December 14. 2000
NDREA C. CUNNINGHAM, as an indivi I
and as Trustee of The Cunningham F r st
dated December 14,2000
PALM SPRINGS MODERN HOMES VI,
Y
fomia limited liability company companyDennis A. Cunningham
Its: Authorized Representative
15
Brandenburg—Cunningham v.Wessman Settlement 1.17.19
GRIT DEVELOPMENT, LLC, a California
limited liability company, formerly WESSMAN
HOLDINGS, LLC, a California lhnite
company
By. _
Michael Braun
Its: Manager
GRIT PS CONSTRUCTION, INC., a
California corporation, formerly named
WESSMAN DEVELOPMENT COMPANY,
INC.
By:
Ociavio Perez Fernandez
Its: President
PALM SPRINGS PROMENADE, LLC, a
California limited liabi ' company
By:
Its: Manager
S MAN,in vidually
CITY OF PALM SPRINGS and
CITY COUNCIL OF CITY•OF PALM
SPRINGS
16
amidmMca—Cwmbehm:Y.Wa m Saaemmt 1.17.19
JCS
By:
David H.Ready,City Manager
ATTEST.•
By:
Anthony J.Mejia, CMC,City Clerk
...........................,:.............
Approved as to form:
ANDERSON, MCPHARLIN & CONNERS
---- _S.LP,Attorneyc for 13ondSafeWapd nsurance
Company By:ffck
Mark Aronson
BERLINER COHEN,LIP, Attorneys for Iee
H Brandenburg and Diane M. Brandenburg,
individually and as Trustees of the
Brandenburg RevocableL Trust Dated
September 19, 1993 and North First Street
Properties,LP
By:
17
Bm ndmburg—CunT inghmn v.Wes u SW tmeM 1.17.19
JCS
By:
David H. Ready,City Mangy
ATTEST:
By:f/ GAW"µ l4• �r
Anthony J.Mejia, CIVIC, City Clerk
AppROVM BY CITY COUNCIL
t a Jq LWJ t*cam A1110
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Approved as to form:
ANDERSON, MCPHARLIN & CONNERS
LLP, Attorneys for Bond Safeguard Insurance
Company
By:
Mark E Aronson
BERLINER COHEN, LLP, Attorneys for Lee
H Brandenburg and Diane M. Brandenburg,
individually and as Trustees of the
Brandenburg RevocableE. Trust Dated
September 19, 1993 and North First Street
Properties,LP
By:
17
Brandenburg—Cummnghmnv Wessman Settlement 1.1719
liability company, and John Wessman an
individual
By:
Diane C. Blasdel
CITY OF P PRINGS
By:
Edward Z. Kotkin,City Attomey
19
Brandenburg—Cunningham v.Wcssman Settlement 1 P 19
By:
David H. Ready,City Manager
A 7TEST.
By:
Anthony J.Mejia,CMC,City Clerk
...............................
.........•
Approved as to form:
ANDERSON, MCPHARLIN & CONNERS
LLP, Attorneys for Bond Safeguard Insurance
Company
By:
Mark E Aronson
BERLINER COHEN, LLP, Attorneys for Lee
H Brandenburg and Diane M. Brandenburg,
individually and as Trustees of the
Brandenburg RevocableE. Trust Dated
September 19, 199 orth First Street
Properti P
By:
17 ChrMan E. Picone
Bmndmburg—Cunningbem v.Wesmren Settkment 1.17.19
Christian E. Picone
By: �✓C c
sel J. Cheng
LAW OFFICES OF MICHAEL R. KAISER,
Attorneys for Palm Springs Modern Homes,
VI, LLC and Dennis A. Cunningham and
Andrea C. Cunningham, individually and as
Trustees of the Cunningham Family Trust
Dated December 14,2000
By:
Michael R. Kaiser
I
ERNEST O. VINCENT, ATTORNEY AT
LAW, Attorney for Palm Springs Modern
Homes, VI, LLC and Dennis A. Cunningham
and Andrea C. Cunningham, individually and
as Trustees of the Cunningham Family Trust
Dated December 14,2000
By:
Ernest O. Vincent
BLASDEL GUINAN LAWYERS, Attorneys
for GRIT DEVELOPMENT, LLC, a
California limited liability company (formerly
named WESSMAN HOLDINGS, LLC), GRIT
PS CONSTRUCTION, INC., a California
corporation (formerly named WESSMN
DEVELOPPMENT INC.), PALM SPRINGS
PROMENADE, LLC, a California limited
18
13nwdcnbue9—Cunningham V.W01M.Setlle 11.17.19
Christian E. Picone
By:
Michael J. Cheng
LAW OFFICES OF MICHAEL R. KAISER,
Attorneys for Palm Springs Modern Homes,
VI, LLC and Dennis A. Cunningham and
Andrea C. Cunningham, individually and as
Trustees of the Cunningham Family Trust
Dated December 14,2000
_--
Michael R. Kaiser
ERNEST O. VINCENT, ATTORNEY AT
LAW, Attorney for Palm Springs Modern
Homes, VI, LLC and Dennis A. Cunningham
and Andrea C. Cunningham, individually and
as Trustees of the Cunningham Family Trust
Dated December 14,2000
By:
Ernest O. Vincent
BLASDEL GUINAN LAWYERS, Attorneys
for GRIT DEVELOPMENT, LLC, a
California limited liability company (formerly
named WESSMAN HOLDINGS,LLC),GRIT
PS CONSTRUCTION, INC., a California
corporation (formerly named WESSMN
DEVELOPPMENT INC.), PALM SPRINGS
PROMENADE, LLC, a California limited
18
Omdenbmg—C"inghem v.Waumn Settlement 1.17.19
Christian E. Picone
By:
Michael J. Cheng
LAW OFFICES OF MICHAEL R. KAISER,
Attorneys for Palm Springs Modern Homes,
VI, LLC and Dennis A. Cunningham and
Andrea C. Cunningham, individually and as
Trustees of the Cunningham Family Trust
Dated December 14,2000
By:
Michael R. Kaiser
ERNEST O. VINCENT, ATTORNEY AT
LAW, Attorney for Palm Springs Modern
Homes, VI, LLC and Dennis A. Cunningham
and Andrea C. Cunningham, individually and
as Trustees of the Cunningham Family Trust
Dated December
r114,2000
By: Z��
Ernest O. Vincent
BLASDEL GUINAN LAWYERS, Attorneys
for GRIT DEVELOPMENT, LLC, a
California limited liability company (formerly
named WESSMAN HOLDINGS, LLC), GRIT
PS CONSTRUCTION, INC., a California
corporation (formerly named WESSMN
DEVELOPPMENT INC.), PALM SPRINGS
PROMENADE, LLC, a California limited
IS
Brandenburg—Cunningham v.Woman Settlement 1.17.19
liability company, and John Wessman an
individual
i
By:
Diane C. BIasdeI
CITY OF PALM SPRINGS
By:
Edward Z.KDtkin,City Attorney
l
19
a.Mw:bM-C'tlOd"3bMv,WaemanSWkmmt1.17.tS O
EXHIBIT A
Site Stabilization Measures
Hard Cost Item: Est.Cost(Tri-Star)
• Cut vertical edges down on all pads(may not be required) $3,791
• Remove 100 feet of steel fence
(temporary project entry gate) $1,648
• Cut exposed rebar off retaining walls
at south side or property and bury walls $850
• Boulder Pile Knock-Down and Scattering on-site:
966 Loader—40 hours @ $205 per hour $8,200
735 Haul Truck—24 hours @$195 per hour $4,680
345 Excavator—40 hours @$250 per hour $10,000
2000 Gallon Water Truck—40 hours nq. $105 per hour $4,200
Total Site Stabilization (Hard Costs): $33,369
20
Brandenburg—Cunningham v.We an Setticm t 1.1719
s City of Palm Springs
Office of the City Attorney
y 3200 E.Taliquitz Canyon Way • Palm Springs, California 92262
Tel:760.323.8205 • Fax: 760.322.8332 •TDD 760.864,9527 •www.palmspringsca.gov
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MEMORANDUM
Date: January 23, 2019
To: City Clerk
From: Edward Kotkin, City Attorney
Re: Brandenburg —Cunningham v. Wessman Settlement
This is to confirm that the above referenced case was settled per Council direction,
received during closed session, on January 9, 2019.
Respectfully,
Edward Z. Kotkin
City Attorney
Post Office Box 2743 • Palm Springs, California 92263.2743