SETTLEMENT AGREEMENT This Settlement Agreement (?Agreement?) is entered into by and between the City of Palm Springs, a municipal corporation (?City? or ?Plaintiff?), Kenneth Irwin Jr. (?Irwin?), Individually, and the Kenneth F. Irwin Revocable Inter Vivos Trust (collectively herein ?Owner? or ?Defendant?) by and through its authorized representatives and trustees, Kenneth Irwin, Jr., Carole Ohanesian, and Fiduciary Trust International of California, by and through its Managing Director and Trust Counsel, Bryan Kirk, concerning the real property commonly known as 1077 E. Granvia Valmonte, as more particularly described in the legal description attached hereto as Exhibit and incorporated herein by this reference (?Property?). The City and Owner are sometimes referred to herein individually as a ?Party? and collectively as the ?Parties?. RECITALS l. The Parties intend by this Agreement to resolve their disputes in the lawsuit entitled City of Palm Springs v. Kenneth Irwin Jr., et 01, Riverside Superior Court Case No. PSC 1606276 (?Litigation?), including all claims raised by the City?s Complaint against the Owner. The City of Palm Springs ?led a civil complaint against Owner on or about December 9, 2016. 2. The Litigation involves enforcement of Plaintiff?s land use and zoning regulations pertaining to the alleged use of certain real property located at 1077 E. Granvia Valmonte, Palm Springs, CA (?Property?) by Defendant and/or with Defendant?s implied or express consent; speci?cally the alleged maintenance of a public nuisance caused by the construction of structures on the Property without the necessary permits and permitting the Property to be used as an event house without the proper permit. This Property is and at all times relevant to this matter has been owned by the Kenneth F. Irwin Revocable Inter Vivos Trust, of which Irwin is one of three Trustees. At all times relevant to this matter, Irwin has been and remains in possession and control of the Property. 3. The Parties have reached an amicable settlement. The purpose of this Agreement is to settle the existing dispute between the Parties related to the Litigation. 4. WHEREAS, the Palm Springs Municipal Code, the Palm Springs Zoning Code, and the relevant California building standards codes, including but not limited to, the California Building Code, require permits for the construction of structures. Further, those codes prescribe regulations for operating a residential structure as an event house, including requiring the issuance of a valid business license. 5. WHEREAS, the City alleges the following: The City has inspected the Pmperty and determined that conditions exist on the Property that violate provisions of the Municipal Code, the Zoning Code, and the California Building Code, including conditions that pose an immediate danger to the health and safety of the general public. Speci?cally, Owner has erected multiple structures without the requisite permits and maintains an extensive holiday display on the Property (?Robolights?). Moreover, Owner permits members of the general public to enter onto the Property despite the existence of the hazardous conditions and without applying for and obtaining an ?Event I-Iouse? permit. The Property has been declared a public nuisance. The current existence of the conditions on the Property that constitute violations of the Palm Springs Municipal Code, the Palm Springs Zoning Code, the Health and Safety Code, and any other laws as set forth in City?s operative Complaint. Between November 2016 and January 2017, the City issued a number of Administrative Citations to Owner for violations observed on the Property, all of which have been appealed by the Owner. To date, these ?nes have gone unpaid. These Administrative Citations currently total $23,050.00. 6. The Owner denies the City?s allegations and has set forth af?rmative defenses to them. 1 I28 553l NOW, THEREFORE, in consideration of the mutual covenants, promises and undertakings set forth herein and other consideration, the receipt and adequacy of which the Parties hereby acknowledge, the Parties agree as follows: AGREEMENT NOW, THEREFORE, the City and Owner agree as follows: The Parties agree that with the completion of all work pursuant to permit number 2017-3211, all violations alleged in the Complaint of the City?s Municipal Codes, Zoning Codes, and California Building Codes have been satisfactorily resolved, and that the Property does not pose any danger to the health and safety of the general public. The City reserves its rights and remedies to immediately enforce its Municipal Code against all persons, including the parties to this Agreement, with regard to any new conditions or activities that constitute a hazard to public health, safety, or welfare, or in the event any covenant or obligation in this Agreement is not timely performed or is otherwise unful?lled or breached. l. OBLIGATIONS. A. Obtainment of Encroachment (and/or variance) Permit. Owner agrees that no diSplay objects, permanent or temporary structures, or other items will be placed into the public right-of-way unless and until he applies for and obtains the appropriate encroachment (and/or variance) permits and City shall not unreasonably deny any such application. B. Permits for ?Robolights Event?: 1. ?Robolights Event? in 2017: Owner agrees to apply for and obtain a permit for the operation of the ?Robolights Event? in 2017. The terms of this permit are attached hereto as Exhibit Owner must apply for and obtain this permit prior to beginning the annual ?Robolights Event." This permit will be entered into pursuant to the City Council?s power under the City Charter section 300, to permit the event as a ?special event.? City agrees that it will not unreasonably object to the approval of said permit. Owner agrees to abide by all reasonable requirements and restrictions of this permit including but not limited to the general and daily time restrictions as well as traffic, noise, and litter control. Owner acknowledges that sanctions for violations as indicated in Exhibit may include the immediate imposition of ?nes and termination of the permit for that year. 2. ?Roboliehts Event? in years after 2017: Owner agrees to apply for and obtain an annual permit for the operation of the ?Robolights Event? for each year of operation following 2017. City agrees that the terms of the subsequent permits will be essentially the same as ?Robolights Event? in 2017 and that it will not unreasonably object to the approval of said permit. C. No new unpermitted or unauthorized structures: Owner agrees to apply for and obtain any and all necessary building permits for any future construction that requires that a building permit be applied for. Additionally, any future construction shall comply with any and all standards and restrictions set forth in the Palm Springs Municipal Code, Palm Springs Zoning Codes and their adopted Codes. 128l5531 D. Authoring. 1. Each signatory to this Agreement represents and warrants that he or she is authorized to sign this Agreement on behalf of the Party for which he or she is signing, and thereby to bind that Party fully to the terms of this Agreement, and that none of the claims being released herein have been previously assigned to any other person. 2. Kenneth Irwin, Jr., Fiduciary Trust International of California, and Carole Ohanesian each hereby represents and warrants that they have the authority as Trustees of the Owner to execute this Agreement on behalf of the Owner and that with their signatures, the Owner will be bound by this Agreement. 3. Owner hereby represents and warrants that the Kenneth F. Irwin Revocable Inter Vivos Trust is bound by the terms and conditions of this Settlement Agreement. E. Liguidated Damages. It is acknowledged that should Owner allow violations of this settlement agreement or the incorporated Exhibit B, the City to incur substantial economic damages and losses of types and in amounts which are impossible to compute and ascertain with certainty as a basis for recovery by the City of actual damages, and that liquidated damages represent a fair, reasonable and appropriate estimate thereof. Accordingly, in lieu of actual damages for such violations, Owner agrees that liquidated damages may be assessed and recovered by the City as against Irwin, individually, as well as the Kenneth F. Irwin Revocable Inter Vivos in the event a breach of the obligations which speci?cally trigger the imposition of these liquidated damages herein and without the Owner being required to present any evidence of the amount or character of actual damages sustained by reason thereof; therefore Owner shall be liable to the City for payment of liquidated damages in the amount of twenty thousand dollars plus any additional penalties accessed as a result of Administrative Citations issued pursuant to the Special Event Permit. Such liquidated damages are intended to represent estimated actual damages and are not intended as a penalty. F. Tolling. Owner agrees and understands that upon ful?llment of the obligations of this Agreement, the City will dismiss with prejudice all of the administrative citations issued to Owner arising from this matter. This includes a waiver with prejudice of all civil penalties issued to Owner. G. Release of Claims. 1. Owner hereby releases the City, the City?s elected and appointed officials, of?cers, board members, members, owners, principals, of?cials, directors, employees, agents, attorneys and/or representatives, and each of them, (collectively, ?City Released Parties?), from any and all claims, lawsuits, demands, challenges, liabilities, damages, fees, costs, or causes of action, known or unknown, that Owner has or may have against the City or the City Released Parties, or any of them, arising from this Litigation. Notwithstanding the foregoing, either Party may enforce the terms of this Agreement. 2. The City hereby releases Owner, Owner?s trustees, bene?ciaries, employees, agents, principals, of?cials, agents, attorneys and/or representatives, and each of them (collectively, ?Owner Releasod Parties?), from any and all claims, lawsuits, demands, challenges, liabilities, damages, fees, costs, or causes of action, known or unknown, that the City has or may have against Owner or Owner Released Parties, or any of them, arising from this Litigation. Notwithstanding the foregoing, either Party may enforce the terms of this Agreement. [281553 I II. OBLIGATIONS. A. Settlement. Within ?ve (5) days of execution of this Agreement, the City shall ?le with the Court a Notice of Settlement. MISCELLANEOUS PROVISIONS. A. Continuing Jurisdiction of Court. The Parties agree that the court shall retain jurisdiction over the Parties and this action to supervise and enforce the terms of this Agreement pursuant to California Code of Civil Procedure section 664.6. Upon any breach of this Agreement, the Parties agree that either Party may ?le an ex parte application with the court and/or shorten the time limits for notice on any motion necessary to achieve speedy compliance with the terms of this Agreement or to enforce the provisions of the Settlement Agreement. B. Bene?ted Parties. This Agreement shall be binding upon and inure to the bene?t of each of the Parties and their representatives, heirs, devisees, successors and assigns. There shall be no third party bene?ciaries. C. Assumption of Risk. The Parties fully understand and declare that if the facts with respect to which this Agreement is executed are found hereafter to be different from the facts now believed to be true, each Party assumes the risk of such possible difference in facts and hereby agrees this Agreement shall be in effect and shall remain in effect notwithstanding such difference in facts. The Parties represent and covenant that they are fully informed regarding all facts related to this Agreement and will not seek to void, rescind, set aside or alter this Agreement on an assertion of mistake of fact or law. D. Attomev?s Fees. Expenses and Costs. By entering into this Agreement, and except as otherwise set forth in this Agreement, the Parties permanently and irrevocably waive any claim to the recovery of expenses, costs, and attomey?s fees related to the Litigation, and the City's enforcement actions leading up to the Litigation. This provision of the Agreement shall not be construed as a waiver by, nor shall it preclude, Owner from taking any action against any persons or entities which are not signatories to this Agreement to recover costs, fees, damages, or other remedies to which he may be entitled. E. Waiver of Section 1542. The Parties hereby forever waive, release and discharge each other Party, and its agents, assigns, attorneys, contractors, departments, employees, of?cials, representatives, trustees, bene?ciaries and servants of and from any and all claims, demands, rights, liabilities and causes of action, of every type and nature, known or unknown, choate or inchoate, liquidated or unliquidated, resolved or unresolved, which exist or may exist in favor of each respective Party (in the aggregate, "Claims?), arising out of, or in any way related to the Litigation as of the date of this Agreement?s execution. The Parties further expressly waive the provisions of California Civil Code Section 1542 with respect to the items released above, which provides that: 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. The Parties hereby expressly waive the provisions of said Section 1542 as to all matters within the scope of the claims released hereby. The Parties hereby warrant and guarantee that they have ?ill and complete authority to release all such claims on behalf of themselves, their heirs, assigns, and successors in interest. l28l553 F. Construction. Choice of Law. and Venue. The terms of this Agreement are the product of arms-length negotiations between the Parties, through their respective counsel of choice, and no provision shall be construed against the drafter thereof. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The venue for any disputes concerning this Agreement shall be in Riverside County. In entering into this Agreement, the Parties represent that they have had an opportunity to obtain the legal advice of attorneys of their own choice, and that the terms of this Agreement are fully understood and voluntarily accepted by them. The Parties further represent that they do not rely and have not relied upon any representation or statement made by any Party or any other person with regard to the subject matter, basis or effect of this Agreement, other than the express provisions contained in this Agreement. If any action, at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys? fees and costs, in addition to any other relief to which they or it may be entitled. G. Failure to Comply with Obligations. In the event of a breach of this Agreement, either party may move the Court, ex parte, for an order enforcing the terms of this Agreement. The prevailing party in any action taken to enforce the terms of this Agreement shall be entitled to its attomeys? fees and costs related to the ?ling of said action. H. Notice. Any notices regarding this Agreement shall be provided by sending said notice by First Class Mail to: Owner: Kenneth Irwin, Jr. 1077 E. Granvia Valmonte Palm Springs, CA 92262 With courtesy c0pies to: Dayton B. Parcells Ben Mehdian Parcells Law Firm 1901 Avenue of the Stars, 11'h Floor Los Angeles, CA 90067 City: City Clerk 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Edward Kotkin City Attorney 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 With courtesy copies to: Woodruff, Spradlin Smart Attn: Nicholas Hutchins 555 Anton Blvd, Suite 1200 Costa Mesa, CA 92626 l28 553l I. Counterparts and Electronic Execution. This Agreement may be executed in counterparts which, taken together, shall constitute one and the same Agreement. This Agreement may also be executed and/or delivered by facsimile and/or email transmission and in such event all facsimile and/or scanned and emailed signatures shall be deemed originals for all purposes hereof. J. Headings. Paragraph headings are for reference only and shall not affect the interpretation of any paragraph hereto. K. No Inducement. Owner and City warrant that no promise or inducement have been made or offered by any of the Parties, except as set forth herein, and that this Agreement is not executed in reliance upon any statement or representation of any of the Parties or their representatives, concerning the Litigation. Owner and City further represent they have been represented by legal counsel during the course of the negotiations leading to the signing of this Agreement or have had the opportunity to consult with legal counsel and have chosen not to do so. L. Effective Date. This Agreement is effective as of the date that Owner?s and City?s signatures are obtained. M. Entire Agreement. This Agreement and its exhibit: constitute the entire Agreement between the Parties concerning the subject matter hereof; supersedes any previous oral or written Agreements concerning the subject matter hereof; and shall not be modi?ed except by a writing executed by the Party or Parties to be bound thereby. AGREED TO AND ACCEPTED AS OF THE EFFECTIVE DATE: Date: Hy: KENNETH IRWIN, JR., Individually THE KENNETH F. IRWIN REVOCABLE INTER VIVOS TRUST Date: By: KENNETH IRWIN, JR. Trustee Date: FIDUCIARY TRUST INTERNATIONAL OF CALIFORNIA, Trustee By: BRYAN KIRK Managing Director and Trust Counsel Date: By: CAROLE OHANESIAN Trustee 6 l28l553l l. anterpms Ed Execution. This Agreement may be executed in counterparts which, taken together, shall constitute one and the same Agreement. This Agreement may also be executed and/or delivered by facsimile andfor email transmission and in such event all facsimile and/or scanned and emailed signatures shall be deemed originals for all purposes hereof. J. He?ings. Paragraph headings are for reference only and shall not affect the interpretation of any paragraph hereto. K. No lnducement. Owner and City warrant that no promise or inducement have been made or offered by any of the Parties, except as set forth herein, and that this Agreement is not executed in reliance upon any statement or representation of any of the Parties or their representatives, concerning the Litigation. Owner and City further represent they have been represented by legal counsel during the course of the negotiations leading to the signing of this Agreement or have had the opportunity to consult with legal counsel and have chosen not to do so. L. Effective Date. This Agreement is effective as of the date that Owner?s and City?s signatures are obtained. M. Entire Agreement. This Agreement and its exhibit: constitute the entire Agreement between the Parties concerning the subject matter hereof; supersedes any previous oral or written Agreements concerning the subject matter hereof; and (0) shall not be modi?ed except by a writing executed by the Party or Parties to be bound thereby. AGREED TO AND ACCEPTED AS OF THE EFFECTIVE DATE: Date: By: KENNETH IRWIN, JR., Individually THE KENNETH F. IRWIN REVOCABLE INTER VIVOS TRUST Date: By: KENNETH IRWIN, JR. Trustee Date: FIDUCIARY TRUST INTERNATIONAL OF CALIFORNIA, Trustee By: BRYAN KIRK Managing Director and Trust Counsel Bar?mc?amj?m By; Cab/Mt 0W CAROLE OHANESIAN Trustee 6 128I553-l . .. .. Whidt. J. Mn- K. W. un?hudbyanyof'thom?as. meptasnatfnr?lhwniu. nndlimtthisAmtisnutmnudin H?ga?m moi?umg?n?mlmdiugtuthasig?ng aim-mm M. Manama: M?mhemndi?d?mu?lyam THERE mm . Mil- an . Ki Datu: . mamr 01* mm Tm: BRYANM WE Director . .L. mam-3 GWEN Trance 6 mum. I. and Electronic Execution. This Agreement may be executed in counterparts which, taken together, shall constitute one and the same Agreement. This Agreement may also be executed and/or delivered by facsimile andlor email transmission and in such event all facsimile and/or scanned and emailed signatures shall be deemed originals for all purposes hereof. J. M. Paragraph headings are for reference only and shall not affect the interpretation of any paragraph hereto. K. N9 Inducement. Owner and City warrant that no promise or inducement have been made or offered by any of the Parties, except as set forth herein, and that this Agreement is not executed in reliance upon any statement or representation of any of the Parties or their representatives, concerning the Litigation. Owner and City further represent they have been represented by legal counsel during the course of the negotiations leading to the signing of this Agreement or have had the opportunity to consult with legal counsel and have chosen not to do so. L. Effective Date. This Agreement is effective as of the date that Owner?s and City?s signatures are obtained. M. Entirg Ament. This Agreement and its exhibit: constitute the entire Agreement between the Parties concerning the subject matter hereof; supersedes any previous oral or written Agreements concerning the subject matter hereof; and shall not be modi?ed eacept by a writing executed by the Party or Parties to be bound thereby. AGREED TO AND ACCEPTED AS OF THE EFFECTIVE DATE: Date: By: KENNETH IRWIN, JR, Individually THE KENNETH F. IRWIN REVOCABLE INTER VIVOS TRUST Date: By: KENNETH IRWIN, JR. Trustee rim: 130%??th i la; 2 oh FIDUCIARY TRUST INTERNATIONAL OF CALIFORNIA. Trustee By: BR AN KIRK Managing Director and Trust Counsel Date: By: CAROLE CHANESIAN Trustee 6 1231553.: CITY OF PALM SPRINGS Date: 3- DAVID READY City Manager City of Palm Springs Approved as to Form: Date: I By: AP OVED BY CITY COUNCIL 5 i? (I 705? EDWARD z. City Attorney City of Palm Springs l28l553 Property Detail Report hltp: .ldci.parcelst. LeonthetByKeyASp?dotaSomc PrOperty Detail Report for: PALM SPRINGS. CA, 92262- Owner Information: Dimer Name' Mailing Address: Vesting Code: TRUST Location Information: Legal Description: County: RIVERSIDE AFN: SOT-271W hustle?RigeSect - - Legal Lot 26 Stbc?vison: Last Market Sale lniormation: Sale Date 71112011 Sale Doc No: 201143305385 Transfer Doc No: 2011-0305885 1" Mg Doc No: Sale Type: Deed ?Wee: Tulle Con'pany: Lender: Seier Name Property Characteristics: Building Area Living Area: Garage Area: Basement Area. Parking Type: Yr BuiltlE?ectiue: I Pool Code. Tax and Value lnfonnation: Assessed Value: 515.343 Land Value: 815.343 improvement Value: Total Tremble Vane: Site Information: Assessor Acres: 0.31 Wt Lot 13.504 Lot 1 Calculated Acros: 0.2053 Calculated Lot 12,423 KENNETH 1077 GRANVIA VALMONTE. SPRINGS. CA, 92262-8104 FOR LOT 26 AM 001mg ASSESSORS MAP 4? FIPS Code: 06065 Alternative AFN: Legal BooldPage: Legal Block Set: Price: Price Per Price For Acne: Total Rooms; Bedrooms: Belize: 0 Fireplace: No of Stories: Quality.- Assessed Year: Property Tax 5204 in'provemeni 93: Tax Emulation: Zoning: No of Buildings; ResiConrn Units. Sewer Type: Wafer Type meow mm Phone Him-oer Census 044802 I 2 Map Ref? - Tract No 1'1 Mg Amount: 151m Int ?type: 2"?3 Amount M19 Int Type Construction t-Eal Type: Air Canal Roof Type. Roof Materiat Style Est Market Val. Assessor Appd Val: Land Use Code 455 Land Use Deso RESIDENTIAL LDT County Use Code YR l?l?u?l?l? AM EXHIBIIT A Property Detail Report -conVGetByKey.apr?dataSource Property Detail Report for: . PALM SPRINGS, CA. 92262- Owner Inform atlon: Omar Name: IRWIN, KENNETH Mailing Address Vesting oode- TRUST Location Information: Legal Description: County nnraasma AFN: 507-271-005 - - Legal Lot 25 Subdin?son- Last Market Sale Information: Sale Data: moan Sale Doc No; 2011-0305005 Transfer Doc No: 2011-0305035 1? 009 Doc No: Sat: Type' Deed Type: Title Carpany: Lender: Seler Name: Property Bulking Area: Living Area: Garage Area: Basement Area: Partan Type" Yr BuiltIE?eo?VE' Pool Code Tax and Value lnfonnatlorl: Assessed Vanna: $23,272 Land Vane: $23,272 Inprowment Value: Total Van: Site Information: Assessor Acres 0.31 Assessor Lot 13.504 Lot W10: Calculated Acres: 0.3633 Cabulated Lot SqFt: 15.051 FOR LOT 26 AM 001MB ASSESSORS MAP 4? FIPS Code: 05005 Altemathe AFN: Legal BooldPaga: Legal Black: Sale Prion: Price Per SqFt: Price Per Acre: Total Rooms Baths: 0 Flraptace' No of Stories; Quality: Assessed Year Property Tax 5209 Tax Ezerrp?on; Zoning: No of Buildings ReyConm Units Sever Type: Water Type: EqmorrAL MAP mm 107? GRANVIA PALM SPRINGS. CA. 92262-8104 Phone Nurnber' Census Trot/But 044502 I 2 Map Ref' - Tract No 1? My Annunt 1" 1mm 2? Amount. 2??l Int Type Construction that Type Air Cond' Roof Type Hoot Manual Style: Est Market Val: Assessor Appd Vat Land Use Code 465 Land Use Best; RESIDENTIAL LOT County Use Code YR Property Detail Report Preperty Detail Report for: 9.333% MAP mm 1077 GRANVIA VALMONTE. PALM SPRINGS, CA, 92282-6104 Owner Information: Omar Name IRWN, Malina Address: 1077 GRANVIA VALMONTE. PALM SPRINGS. CA. 92262-6104 Vesling Code: TRUST Phone Norther Location Information: Legal Description: LOT 27 AM 0011040 MAP 4? Smarty: RIVERSIDE FIPS Code 05065 Census Trc'JB?c 044602 I 2 507-271-005 A?eme?re AFN Map Ref: F1-735 - - Legal BooldPege: Traci Mn Legal Lot 27 Legal Block- Subdivison' MAP 4? Last Market Sale Inform ation: Sale Dole: Sab Price: 1" Mg Mount Sale Doc No: 2011-0305855 Price Per 1? Mg In! Type Transfer Doc No: 2011-0305805 Price Per Acre.- Mg mm 1?MlgDocNo Sab Type: Deed Time: Tide Corrpany: Lenden Seler Norm: Property Characteristics: Area' 3,931 ?Iota! Roars: Consouolion: Living Area: 3,931 Bedrooms: 5 Heel 1m: CENTRAL Garage Area. Satire: 4 Air Cond: CENTRAL Basel-mot Area' Fireplace Rooi Type: Parking Type: No of Stories: 1 Roof Material Yr BuillrE?ecIire: 1572: Quality: Style- Pool Code Tax and Value Information: Assessed Vania: $332,640 Assessed Year: Est Market Val 5841.166 Land VahIe: $38,031 Property Tax $4.295 Assessor Appd Val' In'pronemenl Value: $294,559 Improvement 96: 88.55 Total Tamble Vane: Tax Era-radon: CA HOMEDWNER Slte Information: Assessor Acres: 0.02 Zoning: Land Use Code 183 Assessor Lot 35,719 No of Buidings: Land Use Deso SFR Lo: WID: I ReyCon'm Units. CounIy Use Code 81 Calculated Acres: 0.8130 Sewer Type: Calculaled Lol 35,449 Waler Type: Kenneth Irwin Jr. Settlement Agreement Terms of Event Permit for Annual Robolights Exhibit 1) Robolights Event: a) The Property is owned by ?the Kenneth F. Irwin Revocable Inter Vivos Trust? (?Owner?) of which Kenneth Irwin Jr., Carole Ohanesian, and Fiduciary Trust International of California, by and through its Managing Director and Trust Counsel, Bryan Kirk, are Trustees. The Property is occupied and controlled by Kenneth Irwin .lr. (?Irwin?) who also operates Robolights on the Property as de?ned in section 1(c) below. b) This event permit is issued by the City of Palm Springs, a municipal corporation c) The Robolights annual event (?Robolights?) is herein de?ned as a holiday illumination of sculptures and structures on or about the Property located at 1077 E. Granvia Valmonte (?Property?) whereon members of the public are invited to tour the Property and view the artwork thereon. The terms and conditions of the permits for all subsequent years shall be essentially the same as Robolights in 2017. 2) Duration of Event: a) Robolights shall occur beginning no earlier than Wednesday, November 22, 2017, and ending no later than January 8, 2018. b) Robolights shall not open each day earlier than 4:00 PM. and must end no later than 10:00 P.M. i) All visitors must be off of the Property no later than 10:00 P.M. Should Owner be unable to remove any person from the Property, he may contact the City?s Contact Person designated in section 8(b) for assistance. If Owner contacts the City?s Contact Person prior to 10:00 RM. and takes all reasonable steps to facnlitate the removal of visitors from the Property, those visitors shall not constitute a violation of the provisions of this agreement. c) No member of the general public shall be admitted to tour the Property later than 9:30 PM. d) All decorative lights associated with the event to be turned off no later than 10:00 RM. e) Sanctions for violations of terms i) The ?rst four (1-4) violations which occur for periods of at least 15 minutes will be subject to administrative citation issued per Chapter 1.06, penalties per 1.06.040. ii) The ?fth violation of at least thirty (30) minutes will result in imposition of liquidated damages listed in section 10(b) of this agreement and termination of any permit issued for that year. 3) Free Admittance No Commercial Enterprise Activity: Owner shall not charge an entry fee or otherwise demand donations as a condition for entrance to the event. b) Owner may use passive measures to solicit voluntary donations that do not incorporate any direct verbal interaction with guests but may use a machine which plays a pre-recorded message with the following "Welcome to Robolights, donations are not required but are very much appreciated." or similar verbiage, subject to review and approval by the City. These passive measures shall only be located at the entrance of the Property c) Owner shall not sell any merchandise or food/beverage products to the public. d) Sanction for violations of terms i) The ?rst violation will be subject to a $500.00 dollar Administrative Citation by the City. 12815631 EXHIBIT - 1 ii) Any subsequent violation will result in imposition of liquidated damages listed in section 10(b) of this agreement and termination of any permit issued for that year. 4) Traf?c ControlOwner shall be responsible for all costs associated with implementation and enforcement of a traf?c control program to restrict vehicular access on adjacent local streets to local property owners only, including restriction of on-street parking to permitted residents only, which the City estimates to be approximately $14,029 dollars. To cover this cost, Owner shall deposit with the City the sum of $14,029 not later than by 5:00 pm. on November 21, 2017 for payment of traf?c enforcement costs attributed to the traf?c control area between the hours of 3 PM. and 11 PM. throughout the duration of the event; Owner is responsible for City?s direct costs for assignment of a Parking Control Of?cer pursuant to its contract services agreement with Ace Parking Management, Inc., at the rate of $28.50 per hour (or such other rate applicable at the time of the services); estimated cost for 2017 is 8 hours it 47 days 376 hours $28.50 $10,716. The total amount of direct cost for assignment of a Parking Control Of?cer is estimated to be $10,716. The total amount of direct costs for traf?c control devices and plans is estimated to be $3,3l3. Owner shall be liable for actual costs of Parking Control Of?cer and traf?c control devices as billed to City. Any unused portion of initial deposit shall be returned to the Owner on or before February 1, 2018. Traf?c control area shall be de?ned as the residential area located between Tamarisk Road and Alejo Road, extending from Avenida Caballeros to Hermosa Drive. Traf?c control plan to be prepared by an apprOpriately licensed professional, meeting California Manual of Uniform Traf?c Control Devices (MUTCD) standards, including legally required Vehicle Code or Municipal Code references providing for traf?c enforcement. Traf?c control plan shall include the following: i) Barricades with signage that states ?No Parking - Permit Only I 4 RM. to 1 every 200 feet along the following streets: (1) On Arquilla Road between Tamarisk Road and Alejo Road. (2) On Hermosa Drive between Tamarisk Road and Alejo Road. (3) On Via Altamira between Avenida Caballeros to Hermosa Drive. (4) 0n Granvia Valmonte between Avenida Caballeros to Hermosa Drive. (5) Via Colusa between Avenida Caballeros to Hermosa Drive. (6) Avenida Caballeros between Tamarisk Road and Alejo Road. A barricade with signage that states ?No Parking Permit Only 4 PM. to 11 at the intersections of Tamarisk Road and Arquilla Road and (2) Alejo Road and Arquilla Road. Signage shall be professionally produced, all weather signage subject to the City Engineer?s approval. City Engineer reserves the right to adjust the parameters of the traf?c control area as may be necessary given traf?c conditions caused by the event. ii) 5) Litter Control: a) b) 1281563] Owner shall be responsible for implementing a litter control program of all effected streets located within the traf?c control area. Litter control shall be monitored during and after the event by Owner?s personnel; all litter shall be removed and disposed of by Owner on a daily basis. EXHIBIT - 2 c) City?s Parking Enforcement Of?cer shall monitor for effective litter control by Owner, and Owner shall comply with the Of?cer?s directions regarding litter control problems discovered during the event. City?s Parking Enforcement Officer shall notify the Owner?s management contact pursuant to paragraph 8(a) of this agreement of any litter control problems discovered. Owner will have 30 minutes from the time City?s Parking Enforcement Officer notifies Owner to rectify the litter problem. i) Noti?cation shall be deemed to have occurred upon the Parking Enforcement Of?cer?s phone call and voicemail to Owner's management contact. (1) Sanctions for violations of terms i) The ?rst Four (4) violations which occur for periods of at least 15 minutes will be subject to administrative citation issued per Chapter 1.06, penalties per 1.06.040. ii) The ?fth (5m) violation of at least ?fteen (15) minutes will result in imposition of liquidated damages listed in section 10(b) of this agreement and termination of any permit issued for that year. 6) Noise Control: a) Owner shall be responsible for implementing a noise control program to minimize noise generated by attendees of the event at the property or along effected streets within the traf?c control area. b) Ampli?ed outdoor music at the property is prohibited in accordance with Palm Springs Municipal Code 1 c) City?s Code or Parking Enforcement Officer shall monitor for effective noise control by Owner, and Owner shall comply with the Of?cer?s directions regarding noise control problems discovered during the event. City?s Parking Enforcement Of?cer shall notify the Owner?s management contact pursuant to paragraph 8(a) of this agreement of any noise control problems discovered. Owner will have 30 minutes from the time City?s Parking Enforcement Of?cer noti?es Owner to rectify the noise problem. d) Sanctions for violations of terms i) A The ?rst Four (4) violations which occur for periods of at least 15 minutes will be subject to administrative citation issued per Chapter 1.06, penalties per 1.06.040. ii) The ?fth (5m) violation of at least ?fteen (15) minutes will result in imposition of liquidated damages listed in section 10(b) of this agreement and termination of any permit issued for that year. 7) Sanitation: Owner may provide on-site sanitary services (129., restrooms), located entirely on-site and at least 20 feet from the street, subject to review and approval by the City. 8) Management Contact: a) Irwin shall provide City with a name and telephone number of a contact with whom management ?anctions of the event are assigned on a basis; the management contact must be available at all times during the event to respond to any concerns related to implementation and enforcement of the conditions of the event. b) City shall provide the name and telephone number of a contact person from the City to assist Irwin with issues related to Robolights Holiday. 128l563l EXHIBIT - 3 0) Owner and/or Irwin shall provide access to any member of City staff to the portions of the Property open to the public for the Robolights Event for the purposes of con?rming compliance with this agreement. 9) Event Close Out: a) b) Irwin shall remove all temporary holiday decorations and lighting, and other non-permanent displays not later than thirty (30) calendar days following the close of the event, February 8, 2018. Sanction for violations of term i) A The ?rst Three (3) violations, which occur for a period of one day, will be subject to administrative citations issued per Chapter 1.06, penalties per 1.06.040. ii) The fourth (4m) violation, which occur for a period of one day, will result in imposition of liquidated damages listed in section 10(b) of this agreement and termination of any permit issued for that year. 10) Sanctions for Violations: a) b) d) e) l28l5631 This permit shall be issued in conjunction with a settlement agreement of a lawsuit between City and Owner related to the alleged public nuisances on or about the Property. A true and correct copy of the Settlement Agreement between the parties is attached hereto as Exhibit Section (F) of the Settlement Agreement establishes liquidated damages which both Irwin as well as the Kenneth F. Irwin Revocable Inter Vivos Trust would be jointly and severally liable for in the amount of $20,000.00. A violation as de?ned within this agreement shall be deemed to have occurred when observed by an employee of the City or an agent retained for the purpose of monitoring the Property and reported to Irwin and not remedied by Irwin within the terms and conditions herewith. Each Administrative Citation issued pursuant to section and 9(b) shall be subject to appellate review under the procedures designated in PSMC section 1.06. In addition to the sanctions identi?ed within this agreement the following sanction shall apply for violations of sections and i) For each violation observed by the City, written notice shall be provided to the Owner?s management contact pursuant to paragraph 8(a) of this agreement with courtesy copy to Owner at pigeonyolk@aol.com. (1) This notice may be conveyed via an Administrative Citation, or any other written means by which the City identi?es the time, date, and nature of the alleged violation. There shall be no additional penalty for the ?rst seven (7) violations. The eighth (8m) violation will result in imposition of liquidated damages listed in section 10(b) of this agreement and termination of any permit issued for that year. Owner shall be noti?ed in writing of the 8?h violation and the associated sanction. Owner may appeal the decision to impose sanctions within term 10(e)(ii) within ten days of notice. (1) The appeal must be in writing and must indicate the appellant?s full name and mailing address. It must be accompanied by the penalty amount and the standard appeal fee which shall be set by city council resolution, must specify the basis for the appeal in detail, and must be filed with the city clerk?s of?ce. If the appeal deadline falls on a day City Hall is closed, then the deadline shall be extended until the next regular business day. ii) EXHIBIT - 4 (2) The City manager shall ?x a date, time, and place for the hearing before the Administrative Appeals Board, which shall be within seven (7) days of receipt of written appeal. Written notice of the appeal will be served by ?rst class mail to Owner as well as via email to pigeonyolk@aol.com. (3) Should the Administrative Appeals Board be unable to hear the matter within the time proscribed in section then within fourteen days the matter shall be heard by either a mediator or arbitrator paid by the City. A list of three facilitators from Desert ADR to provide said mediation or arbitration shall be provided by Owner to City for their selection. The mediator or arbitrator selected by City shall be asked to determine the underlying validity of the violations alleged in a similar manner as the Administrative Appeals Board would if available. (4) During the pendency of any appeal pursuant to the sanction provided for in 10(e), any permit issued will remain valid. Additionally, during the pendency of any appeal, the imposition of liquidated damages listed in section 10(b) of this agreement shall be suspended. l28i563l EXHIBIT - 5 SETTLEMENT AGREEMENT ADDENDUM This Addendum to the Settlement Agreement (?Addendum?) is entered into effective as of November 22, 2017, by and between the City of Palm Springs, a municipal corporation (?City? or ?Plaintiff"), Kenneth Irwin Jr. (Irwin), Individually, and the Kenneth F. Irwin Revocable Inter Vivos Trust (collectively herein ?Owner? or ?Defendant") by and through its authorized representatives and trustees, Kenneth Irwin, Jr., Carole Ohanesian, and Fiduciary Trust International of California, by and through its Managing Director and Trust Counsel, Bryan Kirk, concerning the real property commonly known as 1077 E. Granvia Valmonte. The City and Owner are sometimes referred to herein individually as a ?Party? and collectively as the ?Parties?. RECITALS WHEREAS, the parties have entered into a Settlement Agreement, dated on or about November 15, 20l7, to settle the current lawsuit entitled City of Palm Springs v. Kenneth Irwin Jr., et al, Riverside Superior Court Case No. PSC 1606276 (?Litigation?), including all claims raised by the City?s Complaint against the Owner; WHEREAS, the parties desire to adopt terms in addition to those included in the Agreement as set forth in this Addendum to more Speci?cally set forth the terms for operation of ?Robolights Event? in future years beyond 2017. AGREEMENT NOW THEREFORE, with the intent of being legally bound hereby, in consideration of the mutual covenants and promises hereinafter set forth, and other good and valuable consideration, which the parties acknowledge is suf?cient to create a legally binding agreement, the parties agree as follows: 1. PERMITS FOR IN YEARS AFTER 2017. Owner has been placed on notice and is aware that the City may, by ordinance, create a special event permit, which would apply to properties and uses similar to the ?Robolights Event? as well as other event houses within the City. Owner acknowledges that should such an ordinance be in effect in advance of the 2018 ?Robolights Event? or any subsequent years thereafter, the permit process created by said ordinance will control the issuance of any permits for the operation of the ?Robolights Event." In the event that such a process does not yet exist, Owner agrees that he will apply for and obtain a permit similar in kind to the permit issued for the ?Robolights Event" in 2017. This permit will be entered into pursuant to the City Council's power under the City Charter section 300, to permit the event as a ?special event." City agrees that the restrictions placed upon the ?Robolights Event? in future years pursuant to subsequent permits will be roughly equivalent to those imposed upon the ?Robolights Event" in 2017, and that it will not unreasonably object to the approval of said permit. However, Owner understands and acknowledges that City, in considering and adopting a special event permit ordinance, must advance the public health, safety and welfare and address concerns that transcend the ?Robolights Event? in scope. As such, Owner ?thher understands and agrees that the process through which a special event 128248] I 128243! I permit shall be obtained in ?lture years, the fees that must be paid, and various logistics of City involvement with the ?Robolights Event" may vary from the 2017 process implemented in relation to the Settlement Agreement effective November 22, 2017. CONSTRUCTION, This Addendum shall be deemed fully incorporated into the Agreement. Unless expressly provided to the contrary herein, to the extent that any provision of this Addendum conflicts with any provision of the Agreement, the Addendum shall control. SEVERABILITY. If any provision of this Addendum shall be deemed for any reason to be invalid, illegal, or unenforceable, such provision shall be severed from the remainder of this Addendum, and that remainder shall continue in force and effect. IN WITNESS WHEREOF, the parties have executed this Addendum as of the date ?rst above written. Date: By: KENNETH IRWIN, JR, Individually THE KENNETH F. IRVJIN REVOCABLE INTER VIVOS TRUST Date: Date: Date: 11/: I I CITY OF PALM SPRINGS Date: Approved as to Form: Date: By: KENNETH IRWIN, JR. Trustee FIDUCIARY TRUST INTERNATIONAL OF CALIFORNIA, Trustee By: BRYAN KIRK Managing Director and Trust Counsel By: OHANESIAN Trustee By: DAVID READY City Manager City ofPalm Springs By: NICHOLAS A. Deputy City Attorney for the City of Palm Springs Woodru??, Spradlin Smart, APC Data: mmwm.m.wmny THE KENNETH F. IRWIN EVOCABLE INTER TRUST Date: Due: CITY OF PAIN SPRINGS Ethyl Approvedestol'arm: Dug 1111411} mm 816 KENNETH IRWIN, JR. Trustee FIDUCIARY TRUST OF CALIFORNIA, Trustee By: ?I;ka CAROLOEANESIAN Truth! DAVID READY BY: KOTKIN City Attorney City of Palm Springs ST: 1? ?v Clerk APPROVED BY CITY COUNCIL 1 3"?3 93"; 1:23:33?nal: *?LiS??L-Hh?iu ?tniw . .Xxfwin?! LP ii (0.1 :4 {'JJrl?n 5.13%: . 2:3 . . - aisw??rETi?jhlnili?, Lr.