Loading...
HomeMy WebLinkAboutPreserve Calavera|David M. Bentley|Bentley-Monarch Joint Venture; 2005-06-28;AMENDMENT NO. 1 TO SETTLEMENT AGREEMENT This Amendment No. 1 is entered into and effective as of the 2nd day of August ,2005, amending the Settlement Agreement dated June 28,2005 (the “Agreement”) by and between the City of Carlsbad, a municipal corporation, (“City”) and David M. Bentley, and Bentley-Monarch Joint Venture (collectively “Developer”), and Preserve Calavera (collectively “the Parties”) regarding the Cantarini Ranch/Holly Springs Project litigation; and RECITALS WHEREAS, on October 20,2004, the City of Carlsbad Planning Commission recommended approval of the Tentative Map for the Cantarini Ranch Project Carlsbad “CT” Tract 00- 18 with conditions; and WHEREAS the Tentative Map for the Cantarini Ranch Project CT 00-1 8 was approved by the Carlsbad City Council on December 7,2004, with conditions; and WHEREAS, Condition Number 75 of the Tentative Map of the Cantarini Ranch Project reads as follows: “Developer shall execute a City standard Subdivision Improvement Agreement to install and secure with appropriate security as provided by law, public improvements shown on the Tentative Map and the following improvements including, but not limited to paving, base, sidewalks, curbs and gutters, medians, signing and striping, traffic control, grading, clearing and grubbing, undergrounding or relocation of utilities, sewer, water, fire hydrants, street lights, retaining walls and reclaimed water, constructed to City standards and the satisfaction of the City Engineer. The improvements are: a. Design and construction costs for future “M” Street from the intersection of “J” Street to the eastern subdivision boundary as shown on the Tentative Map. A list of the above shall be placed on an additional map sheet on the Final Map per the provisions of Sections 66434.2 of the Subdivision Map Act. Developer shall post security for these improvements, in perpetuity, or until the Amendment No. 1 Preserve Calavera v. City of Carlsbad Page 1 of 3 improvements are required for construction as directed by City Engineer. Developer may opt to post with the City, a cash deposit covering,Developer’s obligation to design and construct the improvements.” WHEREAS, the Settlement Agreement in paragraph four (4) placed a five-year limitation on the security to be posted by the Developer for the future construction of “M” Street inconsistent with Condition Number 75; and WHEREAS, the parties desire to eliminate any inconsistency between paragraph four (4) of the Settlement Agreement and Cantarini Ranch Project condition of approval number 75; and WHEREAS, the title “open space manager” for the City of Carlsbad may change with the implementation of the City’s Habitat Management Plan (‘“MP“) to other titles designated within the HMP and the City wishes to modify this term of the Agreement to include any equivalent position. NOW, THEREFORE, in consideration of these recitals, the parties hereby amend the Settlement Agreement as follows: 1. The last full sentence of paragraph four (4) of the Settlement Agreement is hereby deleted; and 2. The last full sentence of Paragraph three (3) of the Settlement Agreement is hereby amended to read, “Should Preserve Calavera have additional concerns they wish to have addressed in connection with the Project trails, they may send draft proposals to the City Attorney’s Office to review with the Open Space Manager (or the appropriate equivalent) of the City.” 3. All other provisions of the Settlement Agreement will remain in full force and effect. Amendment No. 1 Preserve Calavera v. City of Carlsbad Page 2 of 3 4. The individuals executing this Amendment and the instruments referenced in it on behalf of the Developer each represent and warrant that they have the legal power, right and actual authority to bind Developer to the terms and conditions of this Amendment. 5. This Amendment may be executed in counterparts, all of which, when taken together, shall constitute a fully executed original. DAVID M. BENTLEY, an individual By: PRESERVE CALAVERA, a non-profit organization BENTLEY-MONARCH JOINT VENTURE CITY OF CARLSBAD, a municipal corporation By: Its: By: Its: By: Claude A. Lewis, Mayor LAW OFFICES OF EVERETT L. DELANO I11 By: Everett'L. DeLano 111, Attorney for Preserve Calavera LUCE, FORWARD, HAMILTON & SCRIPPS LLP By: Jefiey A. Chine, Attorney for David M. Bentley And Bentley-Monarch Joint Venture CITY OF CARLSBAD By: Ronald R. Ball, City Attorney Amendment No. 1 Preserve Calavera v. City of Carlsbad Page 3 of 3 4. The individuals executing this Amendment and the instruments referenced in it on behalf of the Developer each represent and warrant that they have the legal power, right and actual authority to bind Developer to the terms and conditions of this Amendment. 5. This Amendment may be executed in counterparts, all of which, when taken together, shall constitute a Mly executed original. PRESERVE CALAVERA, a non-profit organization By: By: Its: BENTLEY-MONARCH JOINT VENTURE CITY OF CARLSBAD, a municipal corporation By: Its: Claude A. Lewis, Mayor By: Its: LAW OFFICES OF EVERETT L. DELANO I11 By: Everett L. DeLano 111, Attorney for Preserve Calavera LUCE, FORWARD, By: CITY OF CARLSBAD By: Ronald R. Ball, City Attorney Amendment No. 1 Preserve Calavera v. City of Carlsbad Page 3 of 3 4. The individuals executing this Amendment and the instruments referenced in it on behalf of the Developer each represent and warrant that they have the legal power, right and actual authority to bind Developer to the terms and conditions of this Amendment. 5. This Amendment may be executed in counterparts, all of which, when taken together, shall constitute a fully executed original. DAVID M. BENTLEY, an individual By: PRESERVE CALAVERA, a non-profit organization By: Its: DAVID M. BENTLEY, an individual By: PRESERVE CALAVERA, a non-profit organization By: BENTLEY-MONARCH JOINT VENTURE CITY OF CARLSBAD, a municipal corporation By: By: Its: Claude A. Lewis, Mayor By: Monarch Communities of California, LAW OFFICES OF EVERETT L. DELANO III By: Everett L. DeLano m, Attorney for Preserve Calavera LUCE, FORWARD, HAMILTON & SCRIPPS LLP By: Jeffrey A. Chine, Attorney for David M. Bentley And Bentley-Monarch Joint Venture Amendment No. 1 Preserve Calavera v. City of Carlsbad Page 3 of 4 do 4. The individuals executing this Amendment and the instruments referenced in it on behalf of the Developer each represent and warrant that they have the legal power, right and actual authority to bind Developer to the terms and conditions of this Amendment. 5. This Amendment may be executed in counterparts, all of which, when taken together, shall constitute a fully executed original. DAVI~B~F~ividual PRESERVE CALAVERA, a non-profit By: organization ' By: By: By: Its:- Its:- f BENTLEY-MONARC OINT VENTURE n, w . LAW OFFICES OF EVERETT L. DELANO I11 Bv: Everett L. DeLano 111, Attorney for Preserve Calavera ttorney for David M. Bentley arch Joint Venture By: Amendment No. 1 Preserve Calavera v. City of Carlsbad Page 3 of 3 SETTLEMENT AGREEMENT This Settlement Agreement (“Agreement”) is made and effective June 28, 2005, by and among David M. Bentley and Bentley-Monarch Joint Venture (collectively “Developer”), the City of Carlsbad, a municipal corporation (“City”), and Preserve Calavera, a non-profit organization (“Preserve Calavera”). RECITALS A. Developer is an applicant for development permits for approximately 277 acres of The development is known as “Cantarini RancNHolly land in the City (the “Property”). Springs” or the “Project.” B. Preserve Calavera is concerned about direct and indirect environmental impacts of the Project. C. On December 7, 2004, the City Council of the City approved Developer’s applications to develop the Project, including without limitation (i) the certification of a Final Environmental Impact Report, (ii) Statement of Overriding Considerations, (iii) Mitigation Monitoring and Reporting Program, (iv) amendment of the Zone 15 Local Facility Management Plan, (v) General Plan Amendments, (vi) zone changes, (vii) tentative subdivision maps, (viii) site development plans, and (ix) other permits and approvals necessary to construct approximately 148 single-family residences, 80 multi-family units, related roadways and public infrastructure on the Property (collectively, the “Project Approvals”). D. In addition to the Project Approvals, Developer has or will file further applications with the City, as well as federal, state and other governmental entities, including without limitation, the United States Army Corps of Engineers, United States Fish & Wildlife Service, California Department of Fish & Game, and Regional Water Quality Control Board necessary to implement the Project Approvals in substantial conformance with the development entitlements referenced in Recital C above, as modified by this Agreement (“Future Project Approvals”). E. On January 5,2005, Preserve Calavera filed a Petition for Writ of Mandate in the Superior Court for the County of San Diego, North County Division, Case No. GIN041593 (the “Lawsuit’) challenging the validity of the Project Approvals. The Lawsuit alleges non- compliance with the California Environmental Quality Act and seeks, among other relief, the invalidation of the Project Approvals. City and Developer dispute the allegations in the Lawsuit. The Superior Court has scheduled a hearing date for the Lawsuit of October 14, F. 2005 in Department 29, the Honorable Michael Anello, Presiding. G. The parties to this Agreement now desire to settle and resolve their differences relating to the Project. NOW, THEREFORE, in consideration of the mutual covenants set forth below, the parties agree as follows: AGREEMENT 1. this reference and acknowledged by all parties hereto as accurate. 2. Incorporation of Recitals. Recitals A through G, inclusive, are incorporated herein by Soft Bottom Crossings. As indicated on the Project’s approved tentative subdivision map and subject to final design and construction permits, “soft bottom crossings,” as may be provided by BridgeTek, LLC, or another supplier, will be used for the Project crossings of jurisdictional waters of the United States at Streets “A” and “J,” as these streets are denominated on the approved tentative subdivision maps. 3. Trail System. As indicated on the Project’s approved tentative subdivision maps fencing and landscape plans, split-rail fencing or vegetation reasonably acceptable to the City and other government regulatory agencies with jurisdiction over the Project will be installed on both sides of the multi-use trail adjacent to open space along Streets “J” and “P,” along the open space side of Streets “C” and “D,” and along the connecting trail linkage between Streets “C” and “D” for the purpose of discouraging unauthorized encroachment by trail-users and animals into the open space. The City, through the future City-Wide Trail Maintenance Plan or other appropriate mechanism, possibly including, without limitation, the Project homeowner’s association, will ensure adequate monitoring and enforcement of trail use within the Project consistent with the City’s approved Habitat Management Plan (‘‘W’). The parties acknowledge that the City- Wide Trail Maintenance Plan has not been adopted, and that this Agreement is not intended to limit the discretion of the City in connection with the adoption of said City-Wide Trail Maintenance Plan. Should Preserve Calavera have additional concerns they wish to have 2 3 addressed in connection with the Project trails, they may send draft proposals to the City Attorney’s Office to review with the Open Space Manager of the City. 4. “M’ Street Extension. As described in the Project’s conditions of approval, the Project developer shall dedicate right of way and post security as required by the City for the construction of “M’ Street easterly of the future intersection of “J” and “M’ Streets (“M Street Extension”). The Project developer shall not be required to construct the M Street Extension unless and until that road segment is required by the City in order to access City approved development of the property that is adjacent to the east of the Project boundary (“Eastern Property”). In the event a tentative subdivision map for Eastern Property is not approved by the City within five (5) years of the date of this Agreement, the obligation of the Project developer to post security for the installation of the M Street Extension shall terminate. 5. Eastern Property Development. In the event the City receives an application(s) for development of the Eastern Property that would result in an increase in the number of trips on “P” Street above the 2,615 “daily trip ends” analyzed in the traffic analysis (Appendix C) of the Project’s EIR, City agrees that the environmental review conducted in connection with said Eastern Property development application(s) will examine the impacts upon open space and wildlife, if any, associated with the increased traffic generation on “P” Street within the Project. In particular, the environmental review in connection with said Eastern Property development application(s) will examine impacts, if any, on the quality and functionality of the secondary wildlife corridor in the vicinity of “P” Street. Any impacts identified will be addressed in accordance with applicable law, including without limitation, CEQA, in connection with the approval of the Eastern Property development application. Any mitigation required to address such impacts will be submitted to and subject to the approval of the United States Fish & Wildlife Service and the California Department of Fish and Game. Developer shall have no obligation of any kind arising out of this Section 5. 6. Interim Open Space Corridor Management. Upon the commencement of construction for the Project, the Project developer shall engage a licensed biologist for the purpose of providing written reports to the parties, with copies to the United States Fish & Wildlife Service and California Department of Fish & Game, on a quarterly basis during construction activities within the Project adjacent to open space along Streets “A” and “J.” The reports will be based upon the biologist’s examination of the open space corridor/fence line for the purpose of assessing the 3 Y disturbance, if any, of the open space corridor, such as destruction of the vegetative cover, resulting from the construction-related activities. The reports will include photographs and, if necessary, proposals for reasonable corrective measures in the event remedial action is required. The Project developer shall timely undertake such remedial action. This reporting requirement shall cease upon the earlier of completion of Project construction adjacent to the above- referenced open space or the City’s adoption and implementation of an open space management plan applicable to the Project. 7. Educational Efforts. City and Preserve Calavera agree to meet and confer in good faith regarding the need for public education concerning the interface between open space and adjacent developed properties, such as the Ocean Hills Country Club. This program may be initiated as a pilot project for activities under Section 3.1.6 of the City’s May 2004 Open Space Management Plan. The parties acknowledge that Ocean Hills Country Club is not within the jurisdictional limits of the City and that the City has no authority over property outside of its boundaries. The City will not fund educational efforts outside its municipal boundaries. 8. Wetlands Creatioflestoration Consultant. Preserve Calavera has provided Developer with the names of consultants specializing in wetland creatiodrestoration. The Project developer will contact these consultants when considering a Project wetlands consultant. In the event off- site wetland creatiodrestoration occurs, the Project developer will solicit Preserve Calavera’s input regarding the location of said restoration. The parties acknowledge that governmental entities, and not Developer, ultimately have authority over the location and content of Project’s wetland mitigation program. 9. Revegetation Plan. Preserve Calavera has indicated the need for clarification of the Project’s revegetation plan to ensure consistency with the trail plan identified in the Project Approvals. Specifically, Preserve Calavera wishes to confirm the revegetation of closed trails. The City agrees to review Preserve Calavera’s comments and make appropriate clarifications, as needed, to the Project’s revegetation plan. The parties acknowledge that by considering Preserve Calavera’s comments the City neither waives nor delegates its legal authority to administer the Project’s development or construction permits or the HMP. 10. Remainder Parcel. The Holly Springs tentative subdivision map identifies a remainder parcel (Lot D) of approximately 19.3 acres (the “Remainder Parcel”). The Project does not propose to develop the Remainder Parcel, which currently is designated as open space under City 4 zoning. The Remainder Parcel will be managed in accordance with HMP standards. Any acreage of the Remainder parcel that is not used for Project mitigation may be used in the future as a mitigation bank or as mitigation credit for other development projects. 11. Payment of Attorney’s Fees and Costs. The City and/or Preserve Calavera will not be responsible for the payment of the attorney’s fees or costs incurred by any other party to this Agreement. Preserve Calavera and Developer concurrently have entered into a separate agreement addressing attorney’s fees and costs. 12. Dismissal of Lawsuit. Within five (5) business days of the complete execution by all parties of this Agreement, Preserve Calavera shall file with the Superior Court a dismissal with prejudice of the Lawsuit in its entirety as to all named Respondents and Real Parties in Interest. 13. No Further Project Opposition. Preserve Calavera agrees that it shall not oppose the Project, Project Approvals and/or Future Project Approvals, nor support in any manner such opposition by others, in any public, regulatory, administrative andor judicial forum. The prohibition in the previous sentence shall not apply to any future development application for the Property or the physical implementation of Project Approvals which does not substantially conform to the Project as approved by the City on December 7, 2004 and described in Recital C hereof, as modified by this Agreement. In any event, Preserve Calavera agrees to notify Developer in writing, and to meet and confer in good faith with the Developer prior to publicly registering Project opposition as described above, for the purpose of resolving Preserve Calavera’s concerns privately and avoiding public disagreement and/or litigation. For the purposes of this Section 13, Preserve Calavera shall include the legal entity known as Preserve Calavera, its officers, board members and employees, and anyone with authority to represent the organization. This provision is not intended to limit or abridge the free speech rights of individuals or entities which Preserve Calavera has no legal authority to bind. 14. The parties hereto intend and agree that this Agreement shall be effective as a full and final accord in satisfaction and general release of and from all claims, rights or causes of action arising out of or related to the Lawsuit, the Project Approvals and/or Future Project Approvals (“Released Matters”). In furtherance thereof, the parties acknowledge that they are familiar with Section 1542 of the Civil Code of the State of California which provides as follows: Mutual Release. 5 “A general release does not extend to claims which the creditor does not know or expect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” The parties expressly waive and release any and all rights or benefits which they have or may have with respect to the Released Matters under Section 1542 of the Civil Code of the State of California, any successor statute or any similar law or rule of any other jurisdiction. In connection with such waiver and relinquishment, the parties acknowledge that they are aware that claims or facts in addition to, or different from, those which they presently know or believe to exist may be discovered and that the release herein given shall be and remain in effect as a full and complete release notwithstanding the discovery of the existence of any additional common, new or different claims or facts. 15. Miscellaneous 15.1 No Admission of Liability. Nothing in this Agreement shall be construed as an admission by any party of any liability or wrongdoing in connection with the Lawsuit, the Project or the Project Approvals. 15.2 Counterparts. This Agreement may be executed in counterparts, all of which, when taken together, shall constitute a fully executed original. 15.3 Entire Agreement. With the exception of the concurrent agreement referenced in Section 11 hereof, this Agreement constitutes the final and exclusive settlement agreement between the parties hereto and all prior and contemporaneous agreements, representations, negotiations and understandings of the Parties hereto, oral or written, are hereby superseded and merged herein. 15.4 Cooperation. Each party agrees to cooperate and to perform such further acts and to execute and deliver any and all further documents that may be reasonably necessary to effectuate the express purposes of this Agreement. 15.5 Modification. No modification, waiver, amendment, discharge or change of this Agreement shall be valid unless the same is in writing and signed by the parties. 15.6 Construction. This Agreement was not drafted by any one party and shall not be construed or interpreted against any one party. 15.7 Severability. If any provision or other portion of this Agreement shall become illegal, null or void or against public policy, for any reason, or shall be held by any court of 6 7 competent jurisdiction to be illegal, null or void or against public policy, the remaining portions of this Agreement shall not be affected thereby and shall remain in force and effect to the fullest extent permissible by law. 15.8 Successors and Assigns. Each and all covenants and conditions of this Agreement shall inure to the benefit of, and shall be binding upon, the successors in interest, assigns, and legal representatives of the parties hereto. Upon assignment or sale by David M. Bentley of his interest or Bentley-Monarch Joint Venture of its interest in the Property or Project, the agreements, duties and obligations of Developer created by this Agreement shall become the sole agreements, duties and obligations of the party to whom the Property or Project is assigned or sold, whereupon David M. Bentley and the Bentley-Monarch Joint Venture, including each and every partner, relative and employee of David M. Bentley and each and every partner, member, employee, consultant or holder of any interest in the Bentley-Monarch Joint Venture, shall be fully and unconditionally released from any and all agreements, duties or obligations created by this Agreement. 15.9 Governing Law. The parties hereby agree that this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. In mutual recognition of the fact that this Agreement is to be performed in San Diego County, California, the Parties agree that in the event that any civil action is commenced regarding this Agreement, San Diego County, California, is the proper county for the commencement and trial of such action. 15.10 Advice of Counsel. The parties, and each of them, represent and declare that in executing this Agreement they have relied solely upon their own judgment, belief and knowledge, and the advice and recommendation of their own independently selected counsel, concerning the nature, extent, and duration of their rights and claims, and that they have not been influenced to any extent whatsoever in executing the same by any representations or statements covering any matters made by the other parties hereto or any other person. 15.1 1 Notice. Any notice to be given or other document to be delivered by any party to another party under this Agreement may be deposited in the United States mail in the State of California, duly certified or registered, return receipt requested, with postage prepaid, or by Federal Express or other similar overnight delivery service, or by facsimile addressed to the party for whom intended as follows: 7 To Developer: With a copy to: To Preserve Calavera: With a copy to: To City: David M. Bentley Managing Partner Bentley-Monarch Joint Venture 7449 Magellan Carlsbad, CA 92009 Facsimile: (760) 476-0335 Telephone: (760) 476-9572 Don Steffensen, Jr., Esq. General Counsel-California Region Monarch Communities of California 15 Cushing Irvine, CA 9261 8 Facsimile: (949) 585-9471 Telephone: (949) 341-2225 Luce, Forward, Hamilton & Scripps LLP 600 West Broadway, Suite 2600 San Diego, CA 92101 Attn: Jeffrey A. Chine, Esq. Facsimile: (619) 446-8275 Telephone: (619) 699-2545 Diane Nygaard President Preserve Calavera 5020 Nighthawk Way Oceanside, CA 92056 Telephone: (760) 724-3887 Everett L. DeLano 111, Esq. Law Offices of Everett L. DeLano I11 220 W. Grand Avenue Escondido, CA 92025 Facsimile: (760) 510-1565 Telephone: (760) 5 10- 1 562 City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attn: Ronald R. Ball, City Attorney Facsimile: (760) 434-8367 Telephone: (760) 434-2890 8 9 Any party may from time to time, by written notice to the other, designate a different address, which shall be substituted for the one above specified. Unless otherwise specifically provided for in this Agreement, all notices, payments, demands or other communications shall be in writing and shall be deemed to have been duly given and received (i) upon personal delivery or (ii) as of the third business day after mailing by United States registered or certified mail, return receipt requested, postage prepaid, addressed as set forth above, or (iii) the immediately succeeding business day after timely deposit with Federal Express or other equivalent overnight delivery system or (iv) if sent by facsimile, upon confirmation if sent before 5:OO p.m. on a business day or otherwise on the business day following confirmation of such facsimile, and provided that notice is also sent on the same day by one of the methods described above, 15.12 Attornevs’ Fees. In any action between Developer and Preserve Calavera arising out of or relating to the breach, enforcement or interpretation of this Agreement, the prevailing party shall be entitled, in addition to any other relief granted, to recover its reasonable attorneys’ fees and all other costs reasonably incurred. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above. DAVID M. BENTLEY, an individual By: BENTLEY-MONARCH JOINT VENTURE PRESERVE CALAVERA, a non-profit organization By: Its: CITY OF CARLSBAD, a municipal corporation By: By: Its: . Claude A. Lewis, Mayor By: Its: 9 Any party may from time to time, by written notice to the other, designate a different address, which shall be substituted for the one above specified. Unless otherwise specifically provided for in this Agreement, all notices, payments, demands or other communications shall be in writing and shall be deemed to have been duly given and received (i) upon personal delivery or (ii) as of the third business day after mailing by United States registered or certified mail, return receipt requested, postage prepaid, addressed as set forth above, or (iii) the immediately succeeding business day after timely deposit with Federal Express or other equivalent overnight delivery system or (iv) if sent by facsimile, upon confirmation if sent before 5:OO p.m. on a business day or otherwise on the business day following confirmation of such facsimile, and provided that notice is also sent on the same day by one of the methods described above. 15.12 Attorneys’ Fees. In any action between Developer and Preserve Calavera arising out of or relating to the breach, enforcement or interpretation of this Agreement, the prevailing party shall be entitled, in addition to any other relief granted, to recover its reasonable attorneys’ fees and all other costs reasonably incurred. forth above. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set DAVID M. BENTLEY, an individual 7 By: I: fs+p BENTLEY-MONARCH JOINT VENTURE - PRESERVE CALAVERA, a non-profit organization By: Its: By: Its: CITY OF CARLSBAD, a municipal corporation By: Claude A. Lewis, Mayor By: Its: 9 Any party may from time to time, by written notice to the other, designate a different address, which shall be substituted for the one above specified. Unless otherwise specifically provided for in this Agreement, all notices, payments, demands or other communications shall be in writing and shall be deemed to have been duly given and received (i) upon personal delivery or (ii) as of the third business day after mailing by United States registered or certified mail, return receipt requested, postage prepaid, addressed as set forth above, or (iii) the immediately succeeding business day after timely deposit with Federal Express or other equivalent overnight delivery system or (iv) if sent by facsimile, upon confirmation if sent before 5:OO p.m. on a business day or otherwise on the business day following confirmation of such facsimile, and provided that notice is also sent on the same day by one of the methods described above. 15.12 Attorneys’ Fees. In any action between Developer and Preserve Calavera arising out of or relating to the breach, enforcement or interpretation of this Agreement, the prevailing party shall be entitled, in addition to any other relief granted, to recover its reasonable attorneys’ fees and all other costs reasonably incurred. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above. DAVID M. BENTLEY, an individual PRESERVE CALAVERA, a non-profit organization By: By: Its: By: Its: BENTLEY-MONARCH JOINT VENTURE CITY OF CARLSBAD, a municipal corporation By: Its: By: Its: By: Claude A. Lewis, Mayor 9 Any party may from time to time, by written notice to the other, designate a different address, which shall be substituted for the one above specified. Unless otherwise specifically provided for in this Agreement, all notices, payments, demands or other communications shall be in writing and shall be deemed to have been duly given and received (i) upon personal delivery or (ii) as of the third business day after mailing by United States registered or certified mail, return receipt requested, postage prepaid, addressed as set forth above, or (iii) the immediately succeeding business day after timely deposit with Federal Express or other equivalent overnight delivery system or (iv) if sent by facsimile, upon confirmation if sent before 5:OO p.m. on a business day or otherwise on the business day following confirmation of such facsimile, and provided that notice is also sent on the same day by one of the methods described above. 15.12 Attorneys’ Fees. In any action between Developer and Preserve Calavera arising out of or relating to the breach, enforcement or interpretation of this Agreement, the prevailing party shall be entitled, in addition to any other relief granted, to recover its reasonable attorneys’ fees and all other costs reasonably incurred. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above. DAVID M. BENTLEY, an individual PRESERVE CALAVERA, a non-profit organization By: By: Its: - By: Its: BENTLEY-MONARCH JOINT VENTURE By: Its: By: Its: 9 13 APPROVED AS TO FORM: LAW OFFICES OF EVERETT L. DELANO I11 By: EverML. DeLano 111, Attorney for Preserve Calavera LUCE, FORWARD, HAMILTON & SCRIPPS LLP By: Jeffrey A. Chine, Attorney for David M. Bentley and Bentley-Monarch Joint Venture OFFICE OF THE CARLSBAD CITY ATTORNEY By: Ronald R. Ball, City Attorney 2064562.8 10 APPROVED AS TO FORM: LAW OFFICES OF EVERETT L. DELANO I11 By: Everett L. DeLano 111, Attorney for Preserve Calavera LUCE. FORWARD, HAMILTON & SCRIPPS LLP By: OFFICE OF THE CARLSBAD CITY ATTORNEY n By: konald R. Ball, City Attorney 6. ~Y*os-, 2064562.8 10