Loading...
HomeMy WebLinkAbout06395 - BRANDENBURG REVOCABLE TRUST SETTLEMENT AGR & MUTUAL GENERAL RELEASE The following agreements are closed, per Doug Holland, on 03-24-2016, ok to close so long we still have access to them. They are all available in Application Extender. A6827 Villas De Las Flores A6736 Wessman Dev & Friends of PS Mountains A6612 Pacific Hospitality Group A6606 CAPS Collective A6588 People for Proper Planning A6582 N Allen and T Davis A6520 Douglas Calvin A6486 Advocates for Better Community Dev A6395 Brandenburg Revocable Trust First American Title Company 74770 Highway 111,Suite 101 Indian Wells,CA 92210 + s First American Title (760)469-8893 Fax-(866)428-6308 ESCROW INSTRUCTIONS To: First American Title Company, Escrow Holder File No.: RIW-4500781 (DP) Deana Perrlcone, Escrow Officer Date: October 04, 2013 Re: Subdivision Improvements,Tract Map 33162, Palm Springs, CA("Property') Wessman Holdings LLC ("WHLLC") City of Palm Springs ("City") This escrow has been opened pursuant to that certain agreement entitled "Reimbursement Agreement" dated as of 3uly 25, 2012 ("Agreement") by and between "WHLLC" and "City" as defined in the Agreement (collectively the "Parties"). The terms and conditions of the Agreement which constitute instructions to Escrow Holder are incorporated herein by reference, First American Tide Company will act as Escrow Holder for the Parties pursuant to the Agreement subject to the following term and conditions. General Provisions: Escrow Holder's duties and responsibilities in this escrow are subject to the General Provisions. To the extent that the Reimbursement Agreement is inconsistent with the General Provisions, the terms of the Reimbursement Agreement shall control as to Escrow Holder's rights, duties and responsibilities. Investment of Deposit: Escrow Holder is instructed to place funds as shall be handed herewith, and any additional deposits, into a "Liquid Money Market" account with First American Trust Company, during the course of this escrow with interest accruing thereto to be credited for Payment Demands as set forth in Section 4 of the Agreement. As a condition to opening the Interest Bearing Account, Customer must provide all necessary documents fully completed and executed to Escrow Holder including, but not limited to, the appropriate W-9 Tax Form. The interest rate paid by the financial institution shall be determined by, based upon, and fluctuate according to the market's going rate. Payment Demand: Payment Demands deposited with Escrow Holder are to be paid in accordance with Section 3 of the Agreement. Fees: Fees shall be paid in connection with this escrow as follows: Base Escrow Fee of$300.00 with disbursements made at an additional charge of$20 per check or $45 per wire; Interest Bearing Account Set-up Fee $150.00. Additional services would include as applicable: Overnight Delivery Fee $25,00; Stop Payment Fee$30.00 ra � al Page 1 of 3 First American Title Company File NO.:RIW-4500781(DP) Funds Held Fee: In the event that funds remain in escrow for any reason more than 90 days y beyond the last activity date ("Dormancy Period"), Escrow Holder will make reasonable efforts to notify the parties regarding same. If funds remain in escrow beyond the Dormancy Period, a monthly 'funds held fee" of$25.00 shall accrue for each month or fraction of a month thereafter that the funds, or any portion thereof, remain In escrow. Escrow Holder is instructed to deduct the monthly funds held fee directly from the funds held in escrow on a monthly or other periodic basis (i.e. quarterly, semi-annually, etc.). The parties agree to pay these sums to compensate Escrow Holder for administering, monitoring, accounting, reminders and other notifications and processing of the funds so held in accordance with this provision. Page 2 of 3 First American Title Company File No.:RIW-4500781(Up) City of Palm Springs By: Wessman Holdings LLC, a California limited liability company By: John Wessman, Managing Member The undersigned Escrow Holder agrees to(i) accept the foregoing Instructions, (ii) act as Escrow Holder under these instructions and (iii) be bound by these instructions in the performance of it's duties as Escrow Holder. First American Title Company BY: Deana Perricone, Senior Escrow Officer Page 3 of 3 Escrow General Provisions-REVISED APRIL 9, 2012 Receipt of these provisions deems acceptance of the terms. Please read for general information about the escrow process, 1. SPECIAL DISCLOSURES: A. DEPOSIT OF FUNDS& DISBURSEMENTS Unless directed In writing to establish a separate, interest-bearing account together with all necessary taxpayer reporting information,all funds shall be deposited in general escrow accounts in a federally insured financial institution including those affiliated with Escrow Holder("depositories').All disbursements shall be made by Escrow Holder's check or by wire transfer unless otherwise instructed in writing.The Good Funds Law(California Insurance Code 12413.1)mandates that Escrow Holder may not disburse funds until the funds are, In fact,available in Escrow Holder's account. Wire transfers are immediately disbursable upon confirmation of receipt. Funds deposited by a cashier's or certified check are generally available on the next banking day following deposit. Funds deposited by a personal check and other types of instruments may not be available until confirmation from Escrow Holder's bank which can vary from 2 to 10 days. B. DISCLOSURE OF POSSIBLE BENEFITS TO ESCROW HOLDER As a result of Escrow Holder maintaining its general escrow accounts with the depositories, Escrow Holder may receive certain financial benefits such as an array of bank services, accommodations, loans or other business transactions from the depositories ("collateral benefits'D. All collateral benefits shall accrue to the sole benefit of Escrow Holder and Escrow Holder shall have no obligation to account to the parties to this escrow for the value of any such collateral benefits. C. MISCELLANEOUS FEES Escrow Holder may Incur certain additonal costs on behalf of the parties for services performed, or fees charged,by third parties.The fees charged by Escrow Holder for services including,but not limited to, wire transfers, overnight delivery/courier services, etc. may include a mark up over the direct cost of such services to reflect the averaging of direct, administrative and overhead charges of Escrow Holder for such services which shall, in no event, exceed$10 for each markup. D. METHOD TO DELIVER PAYOFF TO LENDERS/LIENHOLDERS To minimize the amount of interest due on any existing loan or Ilan, Escrow Holder will deliver the payoff funds to the lender/lienholder as soon as Escrow Holder is able after confirmation of recordation/close of escrow and as demanded by the lender/Ilenholder using (a) personal delivery, (b)wire transfer, or(c) overnight delivery service, unless otherwise directed in writing by the affected party. Certain payments such as home equity line of credit payoffs ("HELOCS") may require additional time to process. � CONTINGENCY PERIODS scrow Holder shall not be responsible for monitoring contingency time periods between the parties.The parties shall execute such documents as may be requested by Escrow Holder to confirm the status of any such periods. 4. REPORTS a. Preliminary Report-Escrow Holder has neither responsibility nor liability for any title search that maybe performed in connection with the issuance of a preliminary report. b. Other Reports-As an accommodation, Escrow Holder may agree to transmit orders for Inspection,termite, disclosure and other reports if requested, in writing or orally, by the parties or their agents. Escrow Holder shall deliver copies of any such reports as directed. Escrow Holder is not responsible for reviewing such reports or advising the parties of the content of same. S. INFORMATION FROM AFFILIATED COMPANIES Escrow Holder may provide the partes'Information to and from its affiliates in connection with the offering of products and services from these affiliates. THIS COMPANY CONDUCTS ESCROW BUSINESS UNDER CERTIFICATE OF AUTHORITY ISSUED BYTHE STATE OF CALIFORNIA DEPARTMENT OF INSURANCE. ®FirstAmeAwn nnawlai corporation.All rights reserved, Page 1 of 4 6. RECORDATION OF DOCUMENTS Escrow Holder Is authorized to record documents delivered through escrow which are necessary or proper for the issuance of the requested title insurance policy(les). Buyer will provide a completed Preliminary Change of Ownership Report form CPCORI. If Buyer falls to provide the PCOR, Escrow Holder shall dose escrow and charge Buyer any additional fee incurred for recording the documents without the POOR. Escrow Holder is released from any [lability in connection with same. 7. PERSONAL PROPERTY TAXES No examination, UCC search, Insurance as to personal property and/or the payment of personal property taxes Is required unless otherwise Instructed In writing. S. REAL PROPERTY TAXES Real property taxes are prorated based on the most current available tax statement from the tax collector's office. Supplemental taxes may be assessed as a result of a change in ownership or completion of construction. Adjustments due either party based on the actual new tax bill issued after close of escrow or a supplemental tax bill will be made by the parties outside of escrow and Escrow Holder is released of any liability In connection with such adjustments.The first installment of California real property taxes Is due November 1st(delinquent December loth) and the second Installment is due February 1st(delinquent April 10th). If a tax bill Is not received from the County at least 30 days prior to the due date, buyer should contact the County Tax Collectors office and request one. Escrow Holder is not responsible for same. 9. CANCELLATION OF ESCROW a. Any party desiring to cancel this escrow shall deliver written notice of cancellation to Escrow Holder. Within a reasonable time after receipt of such notice, Escrow Holder shall send by regular mail to the address on the escrow instructions, one copy of said notice to the other party(ies). 1 Escrow Holder I"utheoized;-CNa1.L aE ihseryfiera to hold all funds and documents in escrow(subject to the funds held fee)and to take no other action until otherwise directed by elther the parties' mutual written instructions or ea final order of a court of competent jurisdiction. d'fled In 1. Upon termination of this escrow, the parties shall pay all fees, charges and reimbursements due to Escrow Holder and all documents and remaining funds held In escrow shall be returned to the parties depositing same. b. Notwithstanding the foregoing, upon receipt of notice of cancellation by a seller in a transaction subject to the Home Equity Sales Contract law(CC§1695 et seq.), Escrow Holder shall have the right to unilaterally cancel the escrow and may return all documents and funds without consent by or notice to the buyer, 10.CONFLICTING INSTRUCTIONS&DISPUTES If Escrow Holder becomes aware of any conflicting demands or claims concerning this escrow, Escrow Holder shall have the right to discontinue all further acts on Escrow Holder's part until the conflict is resolved to Escrow Holder's satisfaction. Escrow Folder has the right at Its option to flle an action in Interpleader requiring the parties to litigate their claims/rights. If such an action is filed,the parties jointly and severally agree(a)to pay Escrow Holder's cancellation charges,costs (including the funds held fees)and reasonable attorneys'fees, and(b) that Escrow Holder is fully released and discharged from all further obligations under the escrow. If an action Is brought involving this escrow and/or Escrow Holder, the party(les)Involved In the action agree to Indemnify and hold the Escrow Holder harmless against liabilities, damages and costs incurred by Escrow Holder(including reasonable attomeys'fees and costs)except to the extent that such liabilities, damages and costs were caused by the negligence or willful misconduct of Escrow Holder. 11.USURY Escrow Holder is not to be concerned with usury as to any loans or encumbrances in this escrow and is hereby released of any responsibility and/or liability therefore. THIS COMPANY CONDUCTS ESCROW BUSINESS UNDER CERTIFICATE OF AUTHORITY ISSUED BY THE STATE OF CALIFORHIA DEPARTMENT OF INSURANCE. pnrst American Financial Corpomuon.All rlghts reserved. Page z or 4 12.AMENDMENTS TO ESCROW INSTRUCTIONS Any amendment to the escrow Instructions must be in writing, executed by all parties and accepted by Escrow Holder. Escrow Holder may, at its sole option,elect to accept and act upon oral Instructions from the parties. If requested by Escrow Holder the parties agree to confirm said Instructions In writing as soon as practicable.The escrow instructions. as amended shall constitute the entire escrow agreement between the Escrow Holder and the parties hereto with respect to the subject matter of the escrow. 13.FIRE, HAZARD OR LIABILITY INSURANCE POLICIES In all matters relating to fire, hazard or liability Insurance, Escrow Holder may assume that each policy Is In force and that the necessary premium has been paid. Escrow Holder is not responsible for obtaining fire, hazard or liability Insurance,unless Escrow Holder has received specific written Instructions to obtain such insurance prior to dose of escrow from the parties or their respective lenders. 14.COPIES OF DOCUMENTS; ELECTRONIC SIGNATURES;AUTHORIZATION TO RELEASE Escrow Holder is authorized to rely upon copies of documents, which include facsimile,electronic, NCR,or photocopies as If they were an originally executed document. Escrow Holder may agree to accept electronically signed documents from a platform or program approved by Escrow Holder. If requested by Escrow Holder, the originals of such documents and/or original signatures shall be delivered to Escrow Holder, Escrow Holder may withhold documents and/or funds due to the party until such originals are delivered. Documents to be recorded MUST contain original signatures. Escrow Holder may furnish copies of any and all documents to the lender(s), real estate broker(s), attorney(s) and/or accountant(s)involved in this transaction upon their request. Delivery of documents by escrow to a real estate broker or agent who is so designated in the purchase agreement shall be deemed delivery to the principal. 15.EXECUTION IN COUNTERPART The escrow instructions and any amendments may be executed in one or more counterparts, each of which shall be deemed an original, and all of which taken together shall constitute the same Instruction. 16.TAX REPORTING,WITHHOLDING&DISCLOSURE The parties are advised to seek independent advice concerning the tax consequences of this transaction, Including but not limited to, their withholding, reporting and disclosure obligations. Escrow Holder does not provide tax or legal advice and the parties agree to hold Escrow Holder harmless from any loss or damage that the parties may Incur as a result of their failure to comply with federal and/or state tax laws. W17HHOLDINGOBLIGATIONSARE THE EXCLUSIVE O8LIGA71ONS OF THE PARTIES ESCROW HOLDER IS NOT RESPONSIBLE TO PERFORM THESE OBLIGATIONS UNLESS ESCROW HOLDER AGREES IN WRJ77NG. A. TAXPAYER IDENTIFICATION NUMBER REPORTING Federal law requires Escrow Holder to report sellers social security number or tax identification number(both numbers are hereafter referred to as the"TIN' , forwarding address,and the gross sales price to the Internal Revenue Service ("IRS').To comply with the USA PATRIOT Act, certain taxpayer Identification Information(including, but not limited to, the ITN) may be required by Escrow Holder from certain persons or entities Involved (directly or indirectly)in the transaction prior to dosing. Escrow cannot be closed nor any documents recorded until the information is provided and certified as to its accuracy to Escrow Holder. The parties agree to promptly obtain and provide such information as requested by Escrow Holder. B. STATE WITHHOLDING&REPORTING In accordance with Section 18662 of the Revenue and Taxation Code(R&TC), a buyer may be required to withhold an amount equal to 3 1/3% (.0333) of the sale price,or an optional gain on sale withholding amount certified by the seller In the case of a disposition of California real property interest by either: I. A seller who is an Individual,trust, estate, or when the disbursement instructions authorize the proceeds to be sent to a Financial intermediary of the sellers. 2. A corporate seller that has no permanent place of business in California Immediately after the transfer of title to the California property. THIS COMPANY CONDUCTS ESCROW BUSINESS UNDER CERTIFICATE OF AUTHORITY ISSUED BY THE STATE OF CALIFORNIA OEPARTMENTOF INSURANCE. @First American Financial Corporation.All rights resemd. Page 3 of 4 The buyer may become subject to penalty for failure to withhold an amount equal to the greater of 10 percent of the amount required to be withheld or five hundred dollars($500).. However,notwithstanding any other provision included in the California statutes referenced above, no buyer will be required to withhold any amount or be subject to penalty for failure to withhold if any of the following applies: 1. The sale price of the California real property conveyed does not exceed one hundred thousand dollars($100,000). 2. The seller executes a written certificate under the penalty of perjury certifying that the seller is a corporation with a permanent place of business in California. 3. The seller,who Is an individual,trust, estate, or a corporation without a permanent place of business In California, executes a written certificate under the penalty of perjury of any of the following: a. The California real property being conveyed is the seller's or decedent's principal residence(within the meaning of Section 121 of the Internal Revenue Code(IRC)). b. The last use of the property being conveyed was by the transferor as the transferors principal residence(within the meaning of IRC Section 121). c. The California real property being conveyed is,or will be,exchanged for property of like kind (within the meaning of IRC Section 1031), but only to the extent of the amount of gain not required to be recognized for California income tax purposes under IRC Section 1031. d. The Califomia real property has been compulsorily or involuntarily converted(within the meaning of IRC Section 1033)and the seller Intends to acquire property similar or related In service or use so as to be eligible for nonrecognition of gain for California income tax purposes under IRC Section 1033. e. The California real property transaction will result Ina loss or net gain not required to be recognized for California Income tax purposes. The seller Is subject to penalty for knowingly filing a fraudulent certificate for the purpose of avoiding the withholding requirement. Contact FB: For additional information regarding California withholding or for the Alternative Withholding, contact the Franchise Tax Board at(toll free) 888-792-4900), by e-mail WSCS.GEN@ftb.ca.gov; or visit their website at www.fth.ca.gov. C. FEDERAL WITHHOLDING & REPORTING Certain federal reporting and withholding requirements exist for real estate transactions where the seller(transferor) Is a non-resident alien,a non-domestic corporation, partnership, or limited liability company; or a domestic corporation, partnership or limited liability company controlled by non-residents; or non-resident corporations, partnerships or limited liability companies. D. TAXPAYER IDENTIFICATION DISCLOSURE Federal and state laws require that certain forms include a parry's TIN and that such forms or copies of the forms be provided to the other party and to the applicable governmental authorities. Parties to a real estate transaction involving seller-provided financing are required to furnish, disclose, and include the other parry's TIN in their tax returns. Escrow Holder is authorized to release a party s TINs and copies of statutory forms to the other party and to the applicable governmental authorities in the foregoing circumstances. The parties agree to hold Escrow Holder harmless against any fees, costs, or judgments incurred and/or awarded because of the release of their TIN as authorized herein. THIS COMPANY CONDUCTS ESCROW BUSINESS UNDER CERTIFICATE OFAUTHORITY ISSUED BYTHE STATE OF CALIFORNIA DEPARTMENT OF INSURANCE. @First Amerlon financial Corporation.All rights reserved. Page 4 of 4 REIMBURSEMENT AGREEMENT r This Reimbursement Agreement ("Agreement") is entered into this 1 S day of t&412012 by and between the City of Palm Springs, State of California ("City )and Wessman Holdings LLC, a California limited liability company ("WHLLC") with respect to the following: RECITALS A. WHEREAS, on or about August 19, 2007, the City approved final Tract Map Number 33162 (the "Map", and the real property included in such Map being referred to herein as the"Underlying Property");and B. WHEREAS, at the time of the Map's approval, the developer of the Underlying Property, Palm Springs Modem Homes,VI, LLC ("Original Developer'D entered into a Subdivision Improvement Agreement dated on or about August 19, 2007 with the City (as amended to date, the "SIA") wherein said Original Developer agreed to make certain subdivision improvements to the Underlying Property as a condition of receipt of the final map(the`Subdivision Improvements");and C. WHEREAS, in accordance with Govcmment Code Section 66462(c), and pursuant to the SIA, the- City required that the Original Developer post certain security to assure performance of the promise to build said Subdivision Improvements; and D. WHEREAS, the Original Developer failed to complete all Subdivision Improvements; and E. WHEREAS, WHLLC is the successor in interest in the ownership of the Underlying Property (the "WHLLC Property") and acquired the WHLLC Property following recordation of the final map for Tract No. 33162;and F. WHEREAS, WHLLC did not assume the Original Developer's obligations under the SIA regarding the completion of the Subdivision Improvements upon WHLLC's acquisition of the WHLLC Property;and NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the parties hereto agree as follows: 1. BONDS. The City hereby warrants and represents that it currently holds surety bonds posted by the Original Developer intended to secure the Original Developer's obligation to complete the Subdivision Improvements (collectively referred to hereinafter as the `Bonds".) The Bonds currently held by the City are all issued by Bond Safeguard Insurance Company and are as follows: Faithful Performance Bond (Street), Bond No. 5022347 for$2,688,636.20 Faithful Performance Bond (Water,Sewer, Storm Drain), Bond No. 5022348 for $2,378,858.75 Labor/Materials Bond(Street), Bond No. 5022347 for$1,420,000.00 Maintenance/Warranty Bond (Street), Bond No. 5022347 for$426,000.00 Labor/Materials Bond (Water, Sewer, Storm Drain), Bond No. 5022348 for $2,085,250.00 Maintenance/Warranty Bond (Water, Sewer, Storm Drain), Bond No. 5022348 for $625,575.00 Monumcntation,Bond No. 5022349 for$3,500.00 Within three (3) business days of full execution of this Agreement, the City agrees to make written demand upon the Original Developer to commence within twenty (20) days, and to diligently pursue the completion of, the Subdivision Improvements (the "City Demand"). In the event that the Original Developer does not agree in writing, within five (5) business days of receipt of the City Demand, to commence and complete the Subdivision Improvements in accordance with said City Demand, or if the Original Developer does not timely commence or does not diligently pursue the completion of the Subdivision Improvements following receipt of the City Demand, the City hereby unconditionally and irrevocably authorizes WHLLC's counsel, on behalf of the City, to draw up and make a claim on the Bonds to pay for the costs of completing and performing the remaining Subdivision Improvements (each a "Bond Claim"). If said Bond Claim is not promptly honored and fully paid by the surety, the City hereby unconditionally and irrevocably authorizes WHLLC's counsel to file suit on behalf of the City against the surety in order to execute on and enforce the Bond Claims and to seek recovery on and under the Bonds (each an "Enforcement Action"), WHLLC shall have the right, but not the obligation, to make Bond Claims and to pursue any Enforcement Actions. Any funds recovered by the City pursuant to the Bond Claims or an Enforcement Action or otherwise recovered from an issuer of any of the Bonds (collectively, "Recovered Funds") shall be held in trust in the Escrow (as hereafter defined) and distributed in accordance with the terms of this Agreement. The City further agrees to fully cooperate with WHLLC and its counsel in connection with the making of the Bond Claims and the pursuit of the Enforcement Actions, including the execution of any documents related thereto or required thereby. 2 The parties hereto acknowledge that the terms of the Bonds require that a claim be made prior to completion of the bonded improvements, and the parties therefore agree to make the Bond Claims as soon as possible after full execution hereof. Subject to the reimbursement provisions contained herein with respect to any Recovered Funds, WHLLC agrees to pay for any costs it incurs in making said Bond Claims or pursuing any Enforcement Actions. WHLLC further agrees to provide the City with cost estimates for completion of said remaining Subdivision Improvements, which cost estimates will be used as the basis for the amount claimed against the Bonds. The City agrees that any Recovered Funds first shall be paid to WHLLC up to the amount of funds actually expended or needed in order to complete the Covered Improvements, as defined and described in paragraph 2 below, plus the amount of any legal fees and costs and expert witness and consultant fees and costs incurred by WHLLC in connection with the Bond Claims, the Enforcement Actions, the drafting and negotiating of this Agreement and any activities related to the.foregoing(collectively,the"Reimbursable Items'. 2. COMPLETION OF COVERED IMPROVEMENTS: In reliance on and in consideration of the City's delivery of the City Demand, and the City's obligation to reimburse WHLLC for the costs associated with completing the Covered Improvements from Recovered Funds as provided herein, WHLLC agrees that once the Bond Claim has been made and the Bond Issuer approves the claim, subject to the City's full cooperation in connection with WHLLC's pursuit of any Enforcement Actions, and so long as the City has not materially defaulted in any of its obligations hereunder, WHLLC shall coordinate and cause the completion of the Subdivision Improvements identified in Schedule 1 attached hereto (collectively, the "Covered Improvements") that were the subject of such Bond Claim in accordance with the milestone schedule also set forth in such Schedule 1, provided such completion of the Covered Improvements does not jeopardize collections pursuant to such Bond Claims or related Enforcement Actions. WHLLC's completion of the Covered Improvements, if and to the extent required hereunder, shall be completed in accordance with accepted City standards and in accordance with the conditions of approval applicable to Tract No. 33162. In the event that the Bond Claim is ultimately unsuccessful in whole or in part, WHLLC shall be obligated to complete the Improvements described in the SIA or as otherwise required pursuant to any conditions of approval to any new or amended entitlement for all or a portion of the Underlying Property. In the event the proceeds from the Bonds are insufficient for any reason to pay the full cost of the Covered Improvements, the City reserves the right to require WHLLC to post or provide new or additional security to secure the completion of Covered Improvements related to the SIA or any improvements required pursuant to a new or amended entitlement from the City. 3. REIMBURSEMENT FOR COVERED IMPROVEMENTS. In the event that the City is successful in securing any Recovered Funds, WHLLC shall be entitled to payment of or reimbursement for the Reimbursable Items from the Escrow, pursuant to and in accordance with the terms hereof. Upon completion of all or any portion of the Covered Improvements, WHLLC may submit payment or reimbursement demands to the City, with a copy to Escrow Holder(as hereafter defined), for that portion 3 of the costs incurred for which reimbursement is then being sought, which demands shall include invoices, proof of payment (if applicable) and a reasonably detailed description of the work or services performed (each a "Payment Demand"). All such Payment Demands shall be accompanied by any appropriate lien releases and/or conditional lien releases from the primary contractors, subcontractors, laborers and materialmen employed in the completion of the Covered.Improvements for which payment is sought. WHLLC shall also submit to the City any and all invoices for legal fees and costs incurred by WHLLC in collecting on the Bonds pursuant to any Bond Claims, Enforcement Actions or otherwise (which submitted legal bills shall be deemed Payment Demands hereunder). Upon the City's receipt and approval of a Payment Demand, which approval shall not be unreasonably withheld, conditioned or delayed, the City shall authorize Escrow Holder (as hereafter defined) to immediately pay to WHLLC the amount requested in the Payment Demand. If the City has not disapproved of a Payment Demand within 10 days of receipt thereof the City shall be deemed to have approved of same, and the City shall provide WHLLC with a reasonable detailed explanation if any Payment Demand is not approved by the City. WHLLC acknowledges that reimbursement of the Reimbursable Items shall be made solely from the Recovered Funds, if any. In the event that the Bond issuer denies a Bond Claim and a court of competent jurisdiction finds that the Bond issuer is not liable for the cost of the Covered Improvements in connection with an Enforcement Action related thereto, then WHLLC shall not be required to complete the Covered Improvements. 4. BOND PROCEEDS HELD IN TRUST. The parties hereto agree that any Recovered Funds shall be held in trust and immediately shall be deposited into an escrow account ("Escrow) with First American Title Insurance Company ("Escrow Holder"). Escrow Holder shall deposit all such Recovered Funds into an interest bearing account, and said funds, including accumulated interest thereon, shall be used solely to pay Payment Demands. Upon completion of the Covered Improvements and payment to WHLLC in full for all of the Reimbursable Items, any funds remaining in the Escrow shall thereafter be used to complete any Subdivision Improvements not included as part of the Covered Improvements, if any, and thereafter, any remaining funds shall be disbursed to the City. 5. TERM. This Agreement shall remain in effect until the later of: (a) WHLLC has been reimbursed all of its costs for completion of the Covered Improvements to the extent available from Bond proceeds or, (b)the Bond issuer has denied coverage under the Bonds and a court of competent jurisdiction has determined that the Bond issuer is not liable for the cost of the Covered Improvements. 6. ASSIGNMENT. WHLLC shall have the right to assign its rights and benefits under the terms of this Agreement to any successors, and assigns,and all other persons or entities acquiring all or any portion of the Project, or any interest therein, provided however that such assignment must be effected via a written assignment and assumption whereby WHLLC specifically assigns and the Assignee specifically assumes some or all of WHLLC's rights and responsibilities hereunder. 4 7. RELATIONSHIP OF PARTIES.It is specifically understood and agreed by and between the parties hereto that the development of the WHLLC Property is a private development and that neither party is acting as the agent of the other in any respect hereunder. The City and WHLLC also hereby renounce the existence of any form of joint venture or partnership between them,and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the City and WHLLC joint venturers or partners. & NO THIRD PARTY BENEFICIARIES. The only parties to this Agreement are WHLLC and the City. There are no third party beneficiaries and this Agreement is not intended, and shall not be construed, to benefit,or be enforceable by any other person whatsoever. 9. SEVERABILITY. If any term,provision, covenant or condition of this Agreement is repealed by referendum or is held by a court of competent jurisdiction to be invalid,void or unenforceable,the remaining provisions,if any,of this Agreement shall continue in full force and effect, unless enforcement of this Agreement as so invalidated would be unreasonable or grossly inequitable under all the circumstances or would frustrate the purposes of this Agreement. 10. SINGULAR AND PLURAL; GENDER: AND PERSON. Except where the context requires otherwise,the singular of any word shall include the plural and vice versa,and pronouns inferring the masculine gender shall include the feminine gender and neuter, and vice versa,and a reference to "person'shall include,in addition to a natural person, any governmental entity and any partnership,corporation,joint venture or any other form of business entity_ 11. TIME IS OF THE ESSENCE. Time is of the essence of this Agreement and of each and every term and condition hereof. 12. EVENTS OF DEFAULT. Subject to any extensions of time by mutual consent in writing,the failure or unreasonable delay by either party to perform any material term or provision of this Agreement for a period of thirty (30)days after the dispatch of a written notice of default from the other party shall constitute a default under this Agreement If the nature of the alleged default is such that it cannot reasonably be cured within such 30-day period,the commencement of the cure within such time period and the diligent prosecution to completion of the cure shall be deemed a cure within such period. Any Notice of Default given hereunder shall specify in detail the nature of the alleged Event of Default and the manner in which such Event of Default may be satisfactorily cured in accordance with the terms and conditions of this Agreement. 13. GENERAL DEFAULT REMEDIES. After notice and expiration of the 30-day period without cure,the non-defaulting party shall have such rights and remedies against the defaulting party as it may have at law or in equity,including,but not limited to,the right to terminate this Agreement or seek mandamus,specific performance,injunctive or declaratory relief.Any rights or remedies available to non- 5 defaulting party under this Agreement and any other rights or remedies that such party may have at law or in equity upon a default by the other party under this Agreement shall be distinct and separate, providing the non-defaulting party with cumulative rights and remedies.None of such rights or remedies,whether or not exercised by the non- defaulting party, shall be deemed to exclude any other rights or remedies available to the non-defaulting party. The non-defaulting party may,in its discretion,exercise any and all of its rights and remedies,at once or in succession,at such time or times as the non- defaulting party considers appropriate_ 14. _LEGAL ACTION: ATTORNEYS' FEES. Either party may, in addition to any other rights or remedies, institute Iegal action to cure,correct or remedy a default, enforce any covenant or agreement herein,enjoin any threatened or attempted violation hereof, or enforce by specific performance the obligations and rights of the parties hereto. The prevailing party in any such action shall be entitled to its reasonable attorneys' fees and costs to be paid by the losing parry. 15.WAIVER. All waivers must be in writing to be effective or binding upon the waiving party,and no waiver shall be implied from any omission by a party to take any action with respect to an Event of Default. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party shall not constitute waiver of such party's right to demand strict compliance by the other party in the future. In addition, no express written waiver of any Event of Default shall affect any other Event of Default,or cover any other period of time specified in such express waiver. 16. AMENDMENTS. This Agreement may be amended from time to time by mutual consent of the original patties or their successors in interest. 17. AMBIGUITIES OR UNCERTAINTIES. The parties hereto have mutually negotiated the terms and conditions of this Agreement and each party received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions contained herein. As such,this Agreement is a product of the joint drafting efforts of both parties and neither party shall be deemed to have solely or independently prepared or framed this Agreement. Therefore, any ambiguities or uncertainties are not to be construed against or in favor of either party. 18. APPLICABLE LAW This Agreement shall be construed and enforced in accordance with the laws of the State of California. 19. VENUE In the event that suit is brought by either party to this Agreement, venue shall be exclusively vested in the State courts of the County of Riverside,California or where appropriate, in the United States District Court, Southern District of California,Riverside, California. 6 20. NOTICES. An notice or communication required hereunder Y 9 between City or W14LLC shall be in writing, and may be given either personally or by registered mail,return-receipt requested. Notice, whether given by registered mail or personal delivery, shall be deemed to have been given and received on the actual receipt by any of the addresses designated below as the party to whom notices are to be sent. Any party hereto may at any time, upon written notice to the other party hereto,designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: To City: City of Palm Springs 3200 E.Tahquitz Canyon Way Palm Springs,CA 92262 Attention: City Manager To WHLLC: WHLLC 555 S. Sunrise,Suite 200 Palm Springs, CA 92264 With a copy to: W. Curt My Ealy, Hemphill&Blasdel,LLP 71905 Highway 111, Suite H Rancho Mirage, CA 92270 21. ENTIRE AGREEMENT. This Agreement and the Schedules attached hereto,contain all the representations and the entire agreement between the parties with respect to the subject matter hereof; any prior correspondence,memoranda, agreements,warranties or representations are superseded in total by those documents except as otherwise specified. 22. COUNTERPARTS.This Agreement may be executed in duplicate counterpart originals,each of which is deemed to be an original, and all of which when taken together shall constitute one and the same instrument. Electronically transmitted signatures shall be deemed and accepted as if they were originals. 7 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first hereinabove written. CITY OF PALM SPRINGS r l B . Dated: A�, Appp AS TO FOAM ATTEST: ityClerk •��J�7••��' ,,ter" Bato APPROVED BY CRY COUNCIL Wessman Holdings, LLC 0 // 7 �t 1 Zo r Z Z.L A California limited liability company �41v258 B • lts: +✓itil 8 Memorandum To: James Thompson, City Clerk From: Douglas Holland, City Atto ey Date: September 26, 2013 Re: Settlement Agreement Bond Safeguard Insurance Company v. Brandenburg, et al. North First Street Properties LP v. City of Palm Springs, et al. Prior to the City Council's closed session on September 18, 2013, the City Council added the Bond Safeguard and North First litigation to the closed session on the basis that a settlement proposal had been conveyed to this Office after the posting of the Agenda. During the closed session, the City Council authorized the City Attorney's office to negotiate for a settlement of the lawsuit consistent with certain parameters, and authorized the City Attorney to execute a settlement agreement his agreement and any related documents on behalf of the City if the settlement would be consistent with those parameters. I have participated in the negotiation of the Settlement Agreement and this Settlement Agreement is consistent with the direction of the City Council and the parameters authorized by the City Council. I have executed the Settlement Agreement on behalf of the City and the City Council. Counsel for one of the parties is coordinating the signature process and I will receive a fully executed copy once I have submitted original signed copies on behalf of the City. Please keep the attached copy for your records until the fully executed original is delivered to you. This memorandum should also be retained with your file. If you have any questions, please do not hesitate to give me a call. SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE This Settlement Agreement (the"Agreement")is entered into as of September 23, 2013 between and among the following parties: Lee H. Brandenburg and Diane M. Brandenburg, individually and as trustees of the Brandenburg Revocable Trust dated September 19, 1993(collectively, "Brandenburg");North First Street Properties, LP ("North First");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 (collectively, "Cunningham");Bond Safeguard Insurance Company("Bond Safeguard"); City of Palm Spring("City"); City Council of City of Palm Springs("City Council"); Wessman Holdings, LLC and John Wessman (collectively"Wessman"); Wessman Development Company, Inc. (`WDC"); and Palm Springs Promenade ("PSP"). The parties to this Agreement are referred to individually as Party and jointly as Parties. A. RECITALS l. 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, City and Wessman 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. 2. On or about January 17, 2013,North First, as petitioner,filed a Petition for Writ of Mandate against City and City Council as Respondents and against WDC and PSP as Real Parties in Interest,which was titled North First Street Properties LP. Petitioner, vs. City of Palm Springs et al., Respondents,Riverside County Superior Court Case No. INC 1300421 (the "CEQA Suit"), Real parties in interest in the CEQA Suit demurred to a first amended petition 1 eN M90724M and to a second amended petition. The Superior Court dismissed the first and third causes of action of the second amended petition without leave to amend, and North First elected not to amend the second cause of action. As a result, the Court entered Judgment in favor of real parties in interest and against North First on or about August 21,2013. 3. The various claims and defenses asserted by the Parties in the Bond Suit and in the CEQA Suit are referenced herein collectively as the"Disputes." 4. In recognition of the costs and risks of further litigating the Disputes,the Parties have compromised their differences on the terms set forth herein. In doing so, it is the intent of the Parries to resolve fully, finally, and forever any and all claims or defenses that they had, have or might have had from now until the end of time,which are in any way related to the Disputes, whether or not such claims or defenses were raised or could have been raised in the Bond Suit or the CEQA Suit or in any other forum in another action that was not filed. B. AGREEMENTS I. The Parties incorporate herein the recitals set forth in Paragraphs 1-4 above as though fully set forth herein. 2. Settlement Check. On or before September 30, 2013,Brandenburg will deliver to 4 Steven J. Hassing,counsel for City and Wessman, a settlement check payable jointly to Mr. Hassing and City in the amount of$1,400,000. Mr. Hassing and City are authorized to cash said check when the settlement consideration referenced herein below has been provided by all of the Parties hereto. Once Mr. Hassing has endorsed the check,the City shall immediately cause the proceeds to be deposited into escrow at First American Title Insurance Company for disbursement in accordance with the terms of Paragraph 4 of the July 25, 2012 Reimbursement Agreement. 3. Fully Executed Settlement Agreement. Each of the Parties and his/her/its counsel 2 BN 149072410 shall sign and deliver a copy of this Agreement to counsel for Brandenburg for circulation to counsel for all of the Parties of a fully executed Settlement Agreement in counterpart originals. 4. No Admissions b Sy ettling. By entering into this Agreement, no party hereto admits that the claims of the other were or are valid or meritorious. 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. 5. Dismissal with Prejudice of the Lawsuits. Counsel for North First agrees to file a Request for Dismissal with Prejudice with the Clerk of the Court in the CEQA Suit. Counsel for the Parties to the Bond Suit agree to execute and file a joint Request for Dismissal with Prejudice of all claims pending in the Bond Suit. 6. No Further CEOA Actions. Wessman, and any other entity which Wessman controls or will in the future control (the "Wessman Interests"),on the one hand, and Brandenburg and Cunningham, and any other entity which Brandenburg and/or Cunningham control or will in the future control (the"Brandenburg/Cunningham Interests"), on the other hand,agree that they will not initiate, fund, support or otherwise participate in any CEQA-based action against any projects proposed by the other in the California or Colorado areas or against any properties in the California or Colorado areas which either then owns and/or has contracted with a third party to sell. 7. Each Party Bears His/Her/Its Own Fees and Costs. Each Party agrees to bear his/her/its own costs and attorneys' fees concerning the Disputes 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. 3 BN 14907241v9 8. Release by City and Wessman of Claims Against the Public Improvement Bonds. In exchange for the settlement payment referred to hereinabove, City agrees to waive and release from now until the end of time any and all claims it has against the public improvement bonds issued by Bond Safeguard in favor of City in connection with the installation of public improvements on that certain parcel of land within the City of Pahn Springs described generally as Tract No. 33162 under Bond numbers 5022347, 5022348, 5022349, 5022350, 5022359, 5022362 (the"Bonds"), To the extent that Wessman acquired any rights from City to pursue the Bonds on behalf of City, Wessman hereby waives and releases any and all claims to any further recovery on the Bonds beyond the settlement consideration set forth herein. 9. Release by All Other Parties of Brandenburg and Cunningham. Upon Brandenburg and Cunningham's performance of their obligations herein, all of the other Parties hereto shall and hereby do release Brandenburg and Cunningham and their officers,directors, partners,shareholders,managers, affiliates, heirs, employees,representatives,agents, assignees, subsidiaries, divisions, sub-divisions, parents,members, attorneys, accountants and insurers from now until the end of time from any and all claims, demands and causes of action directly or indirectly related to the Disputes, including any damages and losses purportedly incurred by the other Parties in connection therewith, whether or not such claims,demands and causes of action are known or suspected to exist. 10. Release by Brandenburg and Cunningham of All Other Parties. Upon the performance by all of the other Parties hereto other than Brandenburg and Cunningham of their obligations herein, Brandenburg and Cunningham shall and hereby do release all of the other Parties hereto and their officers, directors,partners,managers, affiliates,heirs, shareholders, employees,representatives, agents,assignees,parents, members, attorneys, accountants and insurers from now until the end of time from all claims, demands and causes of action directly or 4 BN 1490724M indirectly related to the Disputes, including any damages and losses purportedly incurred by Brandenburg andior Cunningham in connection therewith, whether or not such claims, demands and causes of action are known or suspected to exist. 11. Release by Bond Safeguard of Brandenburg and Cunningham. Upon Brandenburg and Cunningham's performance of their obligations herein and their reimbursement of Bond Safeguard for any and all expenses incurred by Bond Safeguard in the Bond Suit, Bond Safeguard shall and hereby does release Brandenburg and Cunningham and their officers, directors, partners, shareholders,managers, heirs, employees,representatives, agents, assignees, subsidiaries, divisions, sub-divisions, parents, members, affiliates, attorneys, accountants and insurers from now until the end of time from any and all claims, demands and causes of action directly or indirectly related to the Disputes, including any damages and losses purportedly incurred by Bond Safeguard in connection therewith, whether or not such claims,demands and causes of action are known or suspected to exist. 12. Release by Wessman and City of Bond Safeguard. Upon the performance by Bond Safeguard of its obligations herein,Wessman and City shall and hereby do release Bond Safeguard and its officers,directors,partners,managers, affiliates, heirs, shareholders, employees, representatives, agents, assignees,parents, members, attorneys, accountants and insurers from now until the end of time from all claims, demands and causes of action directly or indirectly related to the Disputes and the Bonds including any damages and losses purportedly incurred by Wessman and City in connection therewith, whether or not such claims, demands and causes of action are known or suspected to exist. 13. Release by Bond Safeguard of Wessman and City. Upon the performance by Wessman and City of their obligations herein,Bond Safeguard shall and hereby does release Wessman and City and their officers, directors,partners, managers, affiliates, heirs, shareholders, 5 aN 1490724M employees, representatives, agents, assignees,parents,members, attorneys, accountants and insurers from now until the end of time from all claims, demands and causes of action directly or indirectly related to the Disputes,including any damages and losses purportedly incurred by Bond Safeguard in connection therewith,whether or not such claims,demands and causes of action are known or suspected to exist. 14. Release by North First of CEQA Suit Parties. Upon the performance by City, WDC, PSP, and City Council(the "CEQA Suit Parties") of their obligations herein, North First shall and hereby does release the CEQA Suit Parties and their officers, directors, partners, managers, affiliates,heirs, shareholders, employees, representatives, agents,assignees,parents, members, attorneys, accountants and insurers from now until the end of time from all claims, demands and causes of action directly or indirectly related to the Disputes, including any damages and losses purportedly incurred by North First in connection therewith, whether or not such claims,demands and causes of action are known or suspected to exist. 15. Release by CEQA Suit Parties of North First. Upon the performance by North First of its obligations herein,the CEQA Suit Parties shall and hereby do release North First and its officers, directors,partners,managers, affiliates,heirs, shareholders, employees, representatives, agents, assignees,parents,members, attorneys, accountants and insurers from now until the end of time from all claims, demands and causes of action directly or indirectly related to the Disputes, including any damages and losses purportedly incurred by the CEQA Suit Parties in connection therewith, whether or not such claims,demands and causes of action are known or suspected to exist. 16. 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 Disputes and agree that this Agreement and the releases herein shall remain in full force and 6 BN 14907241 v9 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." 17. 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. 18. 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 matter of 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. 19. 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 20. 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. 21. This Agreement is entered into in the State of California and shall be interpreted 7 BN 1490724M and governed by the laws of the State of California. Any and all disputes in any way involving or related to this agreement shall be resolved by binding arbitration pursuant to the JAMS Comprehensive Arbitration Rules and Procedures m effect at the time any such dispute arises. 22. This Agreement is the product of manual 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 both 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 shell not be applicable. 23. 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. READ CAREFULLY BEFORE SIGNING SO AGREED: BOND SAFEGUARD INSURANCE COMP ByC Itsg ara N9onav9 LEE H. BRANDENBURG, individually and as trustee of the Brandenburg Revocable Trust dated September 19, 1993 �G DIANE M.BRANDENBURG, in y and as trustee of the Brandenburg Revocdividi le Trust dated September 19, 1993 IN,ORTH FIRST STREET PROPERTIES. . J�spS1'�IA�Sb ;LLC Ae4UAx4.l LI%Ai G 1A4101't'1 !/W'{� e � !J / 1 By: �/f � Its_ ArJgq� PALM SPRINGS MODERN HOMES,VI, LLC, a California Limited Liability Company By: Its DENNIS A.CUNNINGHAM,as an individual and as Trustee of The Cunningham Family Trust dated December 14, 2000 BN 14907241 v9 9 LEE IL BRANDUBURG,individually and as trustee of the Brandenburg Revocable'Trust dated September 19, 1993 DIANE M BRANDENBURG,individually and as trustee of the Brandenburg Revocable Trust dated September 19, 1993 NORTH FIRST STREET PROPERTIES, LP By: Its PALM SPRINGS MODERN HOMES,VI, LLC, a Californ Limited Liability Company By: Its A HAM, as an individual anTas Trustee of The Cunningham Family Trust dated December 14,2000 i 9 BN 1490724lv9 A EA C. NINGHAM, v1 ual Trustee of The C F 'ly Trust dated December 14,2000 WESSMAN HOLDINGS LLC,a California limited liability company By: Its WESSMAN DEVELOPMENT COMPANY, INC. By: Its PALM SPRINGS PROMENADE By: Its JOHN WESSMAN 10 BN 149072410 ANDREA C.CUNNINGHAM,an individual and as Trustee of The Cunningham Family Trust dated December 14,2000 WESSMAN HOLDINGS LLC,a California limited liability company By. It WESSMAN DEVELOPMENT COMPANY, INC.9Its PALM SPRINGS PROMENADE By: 6�_; Its ;w4i SMAN BN 149072410 10 CITY COUNCIL OF CITY OF PA LM SPRINGS and CITY OF PALM SPRINGS C rr�► cam-. � c By: DOUGLAS HOLLAND,City Attorney APPROVED AS TO FORM: ANDERSEN,MCPHARLIN&CONNERS, LLP Mark E.Aronson,Attorneys for Bond Safeguard Insurance Company BUCHALTER NEMER,A PROFESSIONAL CORPORATION James B.Wright,Attorneys for Lee H. Brandenburg and Diane M.Brandenburg, individually and as trustees ofthe Brandenburg Revocable Trust dated September 19, 1993, and.North First Street Properties,LP ERNEST O.VINCENT,ATTORNEY AT LAW Ernest O.Vincent,Attorney for Palm Springs Modem Homes Vl, LLC,Dennis A. Cunningham and Andrea C. Cunningham, individually and as trustees of the Cunningham Family Trust dated December 14,20M 11 aN Ig9072410 CITY COUNCIL OF CITY OF PALM SPRINGS and CITY OF PALM SPRINGS By: DOUGLAS HOLLAND, City Attorney APPROVED AS TO FORM: ANDERSEN,MCPHARLIN & CONNERS, LLP Mark E.Aronson,Attorneys for Bond Safeguard Insurance Company BUCHALTER NEMER,A PROFESSIONAL CORPORATION lam B. Wright,Attorneys Lee H. Brandenburg and Diane M. randenburg, individually and as trustees of the Brandenburg Revocable Trust dated September 19, 1993, and North First Street Properties, LP ERNEST O. VINCENT,ATTORNEY AT LAW Ernest O. Vincent At torney for Palm Springs Modem Homes VI, LLC, Dennis A. Cunningham and Andrea C. Cunningham individually and as trustees of the Cunningham Family Trust dated December 14, 2000 eN 1490724ivv l l CITY COUNCIL OF CITY OF PALM SPRINGS and CITY OF PALM SPRINGS By: DOUGLAS HOLLAND,City Attorney APPROVED AS TO FORM: ANDERSON,MCPHARLIN&CONNERS, LLP n G Mark WAronson,Attorneys for Bon Safeguard Insurance Company BUCHALTER NEMER,A PROFESSIONAL CORPORATION James B. Wright,Attorneys for Lee H. Brandenburg and Diane M.Brandenburg, individually and as trustees of the Brandenburg Revocable Trust dated September 19, 1993, and North First Street Properties, LP ERNEST O.VINCENT,ATTORNEY AT LAW Ernest O.Vincent,Attorney for Palm Springs Modem Homes VI,LLC,Dennis A. Cunningham and Andrea C.Cunningham, individually and as trustees of the Cunningham Family Trust dated December 14,2000 11 BN 14907241v9 L W FFICES OF STEVEN J. HASSING St en . H si g,A orneys for John e man, Wessman Holdings, LLC and City of P Springs in a Bond Suit EALY,HEMPHILL, AND BLASDEL, LLP By: Emily Hemphill,Attorneys for City of Palm Springs,Wessman Development Company, Inc., Palm Springs Promenade, and City Council of City of Palm Springs in the CEQA Suit 12 BN 14907241 v9 LAW OFFICES OF STEVEN I HASSING Steven J. Hassing,Attorneys for John Wessman, Wessman Holdings,LLC and City of Palm Springs in the Bond Suit EALY,HEMPHILL, AND BLASDEL,LLP By. Emily Hem441 ttomeys r City of P Springs, WQDevelopment Company, Inc.,Palm Sprmgs Promenade, and City Council of City of Palm Springs in the CEQA Suit 12 BN 14907241 v9