HomeMy WebLinkAbout2005-09-06; City Council; 18258; Settlement Preserve Calavera v City, Cantarini Ranch/Holly SpringsCITY OF CARLSBAD - AGENDA BILL 2
AB# 18,258
MTG . 9/6/05
J’JTLE: REPORTING OUT THE TERMS AND CONDITIONS OF DEPT. HD.
THE SETTLEMENT AS REQUIRED BY THE BROWN ACT IN
PRESERVE CALAVERA V. CITY OF CARLSBAD. CANTARlNl CITY ATTY.
CITYMGR. RANCHlHOLLY SPRINGS, GIN 041593
DEPT. CA
RECOMMENDED ACTION:
There is no action the Council needs to take.
ITEM EXPLANATION:
A Settlement Agreement has been reached in the case Preserve Calavera v. City of Carlsbad,
et al. by and among David M. Bentley, Bentley-Monarch Joint Venture (Developer), Preserve
Calavera and the City, and the case has been dismissed. That Agreement, and Amendment
No. 1 to Settlement Agreement, is attached to this Agenda Bill for reporting out purposes, as
required by the Brown Act.
FISCAL IMPACT:
There is no cost to the City.
EXHIBITS:
1. Settlement Agreement
2. Amendment No. 1 to Settlement Agreement
DEPARTMENT CONTACT: Ronald R. Ball, (760) 434-2891
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
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