CC SR 20170418 05 - Vista Verde Settlement AgreementRANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 04/18/2017
AGENDA REPORT AGENDA HEADING: Regular Business
AGENDA DESCRIPTION:
Consideration and possible action to approve a Settlement Agreement with Vista Verde
Homeowners.
RECOMMENDED COUNCIL ACTION:
(1) Approve the Settlement Agreement with Vista Verde Homeowners
FISCAL IMPACT: $515,000 bE—
Amount Budgeted: 0
Additional Appropriation: $515,000
Account Number(s): 101-400-2999-4901
ORIGINATED BY: David Aleshire, City Attorney
REVIEWED BY: Same as above
APPROVED BY: Doug Willmore, City Manager; `X/
ATTACHED SUPPORTING DOCUMENTS:
A. Settlement Agreement (page A-1)
• Covenant and Release Agreement No. 1 (page A-14)
• Third Amendment to Vista Verde Declaration of Covenants,
Conditions and Restrictions (page A-17)
• Joint Public Statement Between the City of Rancho Palos Verdes
and the Residents of Vista Verde Condominiums (page A-23)
INTRODUCTION AND SUMMARY:
The 25 -unit Vista Verde Condominiums ("Vista Verde") was built in 1981 and have
administratively challenged various City approvals in connection with the Green Hills
Memorial Park since at least 1991. Recent disputes arose after the 2007 approval of
the Master Plan and Conditional Use Permit which allowed the 3 -story Pacific Terrace
Mausoleum ("Mausoleum") to be built within 8 feet of the property line adjacent to Vista
Verde. The Mausoleum has rooftop plots and the view blockage and conduct of burial
services is a disturbance to the Vista Verde Owners. However, the Vista Verde Owners
did not timely appeal or challenge the 2007 City approvals. Moreover, as of November
2015, Green Hills calculated the cost to remove and relocate the Mausoleum at $14
million and has collected another $14 million for the plots sold. In 2015 the Vista Verde
Owners filed three lawsuits against the City, amongst other things seeking over
$16 million in damages.
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Although the City believes it has a strong legal position based on the vested rights of
Green Hills and statute of limitations, the City Council is sympathetic to the plight of the
Vista Verde Owners and is also aware of the uncertainties of litigation. Accordingly, the
Council agreed to mediate the disputes.
On February 1, 2017, with the assistance of the Honorable Justice Gary Hastings acting
as mediator, representatives of the City, the Vista Verde Homeowners Association (the
"Association") and the Owners, met and tentatively agreed to settle all current disputes
on the terms described below.
In addition, based on feedback from the City Council, the City Attorney's office sought
settlements with the non -represented owners of the remaining 4 out of 25 units at Vista
Verde. Tentative settlements have been reached by the City, the Association, and the
Owners and 3 of the 4 remaining owners at Vista Verde, the terms of which are:
1. The City shall pay $500,000 in settlement of the Owners' claims.
2. The Owners shall each execute a release agreement and their attorney, Mr. Noel
Weiss, shall execute a request for dismissal of the Pending Lawsuits.
3. The City shall pay $5,000 in settlement of any future claims to three of the four
remaining unit owners at Vista Verde in exchange for which the three unit owners
will also execute release agreements. The fourth unit owner declined to settle
with the City, however the City Attorney's office still recommends settlement.
4. The Association shall revise the Vista Verde Covenants, Conditions and
Restrictions ("CC&Rs") to include a notice of the settlement and an agreement to
hold the City harmless from any further claims or actions brought by a unit owner
at Vista Verde.
5. A joint press statement has been agreed to by the parties which summarizes
their positions.
6. The Settlement Agreement permits the Vista Verde Owners to continue their
actions against Green Hills.
The actual Settlement Agreement including all exhibits with the form of the Release and
Joint Press Statement are attached to this staff report.
The history of these disputes is lengthy, and the origin of the current dispute goes back
some 10 years. Given the substantial settlement, it is worth recounting this history in
some detail.
BACKGROUND AND DISCUSSION:
Green Hills Memorial Park is a 121 acre cemetery located at 27501 Western Avenue in
the northeast corner of the City, bordering the City of Lomita, the City of Rolling Hills
Estates, and the City of Los Angeles. The cemetery was first established in 1948 and,
at the time, was located within an unincorporated area of Los Angeles County. The site
became part of the City of Rancho Palos Verdes when the "Eastview" area was
annexed in 1984. The cemetery operates Monday through Sunday, from sunrise to
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sunset, and consists of ground burials, mausoleum buildings, an office building,
mortuary, chapel, flower shop, and a maintenance yard and related buildings.
To avoid future incremental projects, it was determined that a master plan was a tool to
allow a phased development of the cemetery site over an extended period of time.
Therefore, following the submittal of Conditional Use Permit No. 155, on August 14, 1990,
the Planning Commission approved a Master Plan for a portion of the site development and
the entire grading plan for the Green Hills Memorial Park cemetery site. The Master Plan
segmented the cemetery site into different "Areas" where mausoleums and/or ground
interments were approved, including an estimation of the total amount of grading necessary
to develop and improve each Area. The Planning Commission's decision was appealed to
the City Council by the applicant, citing concerns with several conditions of approval relating
to phasing, setbacks, and placement of a proposed mausoleum expansion. Residents of
the Vista Verde Condominiums appeared at the public hearings before the Planning
Commission and voiced opposition to mausoleum buildings and ground interments being
located too close to their properties. On February 19, 1991, the City Council upheld the
appeal, thereby approving a Master Plan for the entire Green Hills Memorial Park property
with several modifications to the Planning Commission's original decision (Resolution
No. 91-7).
The 1991 Master Plan called for phased development of the cemetery site that was
contemplated to occur over the next 100 years. The Master Plan allowed 194,340 cubic
yards of grading (97,170 cu. yds. of cut and 97,170 cu. yds. of fill) to be balanced on site
(i.e., no import or export), including re -grading of the remaining 45 -acres of undeveloped
area on the property. The Master Plan also allowed construction of 2.44 -acres of
mausoleum buildings, 11.87 -acres of "garden" burial sites, 27.21 -acres of ground burial sites
and 3.72 -acres of roads. Thereafter two Conditional Use Permit revisions were permitted
in 1995 and 1998, and between 1991 and 1998 several other approvals were granted
for projects at Green Hills at the staff level because they were deemed to be consistent
with the Master Plan.
Green Hills applied for a Master Plan revision in 2003 (Case No. ZON2003-00086), but
the application was not complete until November 2006. Various publicly noticed
hearings were held. In Area 11 adjacent to the Vista Verde Condominium, the Master
Plan revisions ultimately included a greatly enlarged mausoleum with rooftop burials.
The staff report recommended approval including Condition 7 reducing the initial
northern setback to Vista Verde condos from 80 ft. to 8 ft. (P.C. Resolution No. 2007-
33). No special efforts were made to inform Vista Verde Owners of the changes nor
was this change a focus of the staff report.
On April 24, 2007, following a noticed public hearing, by Resolution No. 2007-32 the
Planning Commission approved a revision to the Master Plan and revised the CUP. No
appeal was made to the City Council. No legal challenge was filed within the 90 day
statutory period. No revisions to the existing variance were sought or granted. As
revised, the Master Plan allowed the construction of a 10,366 sq. ft., 3 -story mausoleum
known as the Pacific Terrace Mausoleum to be built in the northwestern part of the
Memorial Park reducing the zoning setback from 40 feet to 8 feet from the property line
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adjacent to the Vista Verde Condominiums. Subsequently, building plans were
submitted by Green Hills and building permits were issued on February 16, 2012.
Construction of the Pacific Terrace Mausoleum began in 2012 and was completed on
September 11, 2013.
Green Hills spent some $3.2 million to build the Mausoleum, but calculates its costs of
construction, demolition and reburials if the Mausoleum were relocated at $14 million.
Green Hills commenced selling plots or crypts at the Mausoleum on September 11,
2013. As of November 2015 when information was collected, there were a total of 1778
spaces at the Mausoleum; 1,102 had been sold; of those sold, 219 were occupied (the
remaining 676 were both unsold and unoccupied). Green Hills had collected in excess
of $14 million for the plots sold. The total damages for moving and reconstructing the
Mausoleum and for refund charges to the purchasers of the sold plots were then
$28 million. There could be additional damages claimed by the families of those
disinterred for emotional distress and other issues. In a recent case involving Eden
Memorial Park, the cemetery settled a class action lawsuit for $80.5 million to
compensate families for emotional distress damages, refunds and reburial charges.
During construction of the Mausoleum, in 2013 the City began to receive complaints
from Vista Verde. The City hired RCS Investigations as an independent investigation to
review the 2007 approval of the Master Plan, focusing on staff performance. The RCS
report was delivered on March 11, 2015. The report investigated three employees and
concluded that the three, principally the Senior Planner, failed to perform adequately.
[None of the three work for the City currently]. The report found some inconsistencies
with noticing and in the City zoning, but did not find that this made the City's approvals
illegal, in fact the report concluded that there were "no legal ramifications" for any public
notice issues. Moreover the report stated that there was no evidence of malfeasance
on the part of the City, its officials or employees. It did not recommend any discipline for
the employees.
The CUP included a condition providing for operational review of the CUP (the "Annual
Review"). With the complaints, the Planning Commission commenced such review in
February 2014. Numerous public hearings were held and the parties met attempting to
resolve the issues. Finally, 9 months after commencement of review, on November 11,
2014, the Planning Commission determined that Green Hills should be required to
obtain an "after -the -fact" variance, and that there should be a moratorium on rooftop
burials until such variance was granted. Accordingly, on November 11, 2014, the
Planning Commission adopted P.C. Resolution No. 2014-29. Within the 15 -day appeal
period, Green Hills counsel submitted an appeal letter dated November 25, 2014 on
behalf of Green Hills appealing the Planning Commission's decision to City Council.
Based on the amount of late correspondence received prior to the January 20, 2015,
meeting, and the City performance investigation, the City Council continued, and
ultimately directed staff to re -notice, the public hearing for a future date. The delay was
extensive with the City Council hearing on the appeal of the operational review not
finally scheduled until September 1, 2015. This was largely due to the City's
investigation of the matter through an independent outside firm and then the efforts of
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the parties to resolve the matter by performing an appraisal and participating in a
mediation. At the September 1, 2015, hearing, after extensive testimony, the Council
directed Staff to prepare a resolution largely upholding the Planning Commission's
actions.
After further delays, due in part to the retention of a new city attorney, the matter was
considered at a public hearing on November 17, 2015. The City Attorney opined that (i)
Green Hills had a vested right and that the City could be liable for damages if it required
Green Hills to remove the Mausoleum or cease business operations, (ii) the Municipal
Code provided that the requirements of a CUP could supercede the underlying zoning
(17.60.050(B)), (iii) an "after -the -fact" variance process required 9 years after the
granting of the CUP was unnecessary and exposed the City to legal liability, and (iv) the
moratorium would interfere with Green Hills' business operations contrary to state law.
The City Council modified the Planning Commission decision and added mitigating
conditions to the CUP and terminated the review. The City Council determined that
Green Hills should be required to participate in a mediation process with the Vista Verde
homeowners to determine an appropriate level of compensation, if any, and conditioned
the applicant accordingly. The City Council offered to contribute sums the City would
have incurred in litigation to such settlement. Green Hills would be relieved of such
obligation should the Vista Verde homeowners be unwilling to participate in mediation.
On December 12, 2015, Green Hills accepted all the conditions imposed by the City
Council. On or about December 23, 2015, Green Hills executed an Indemnity
Agreement with the City as required by Condition 41 to pay any claims arising from the
City's granting of the CUP. Under the Indemnity Agreement, the City retains the
unilateral right to settle any litigation against the City.
The Owners and the Association, and their legal counsel, Noel Weiss, raised various
issues concerning the City's granting of the CUP and issuance of permits, and
concerning Green Hills' operation of the Memorial Park. The Owners have made public
records requests, filed administrative appeals of various actions, threatened other
actions concerning the City's compliance with the Brown Act, and concerning the
conduct of annual reviews, and contemplated other legal actions. On January 19, 2016,
Noel Weiss submitted new claims for damages on behalf of numerous Owners'. The
total amount claimed in damages was $16,597,985.63. On February 8, 2016, the City
rejected the claims as untimely based on the applicable statute of limitations.
On February 16, 2016, Vista Verde Owners filed a petition for writ of mandate
attempting to overturn the City's actions on November 17, 2015. Three lawsuits have
been filed by the Owners and are currently pending in Los Angeles Superior Court.
These lawsuits, referred to herein as the "Pending Lawsuits," are as follows:
■ Loveys v. City of Rancho Palos Verdes, Los Angeles Superior Court Case
No. BS160652, filed Feb. 16, 2016
Four of the 25 owners (the "Non -Litigating Owners") chose not to participate in the litigation.
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■ Loveys v. City of Rancho Palos Verdes, Los Angeles Superior Court Case
No. BC629637, filed Aug. 5, 2016
■ Loveys v. City of Rancho Palos Verdes, Los Angeles Superior Court Case
No. BS166493, filed Dec. 5, 2016
These lawsuits allege that Green Hills violated the City's Zoning Code by constructing
the Pacific Terrace Mausoleum which resulted in (i) encroachment issues, (ii) rooftop
burials, (iii) exceeding height standards, and (iv) the City's abandonment of abatement
efforts. Vista Verde argues that it was improper to relieve Green Hills of having to
procure a variance to "legalize" the zoning violations by the adoption of a CUP which
permitted Green Hills to "vary" from the setback development standards. Causes of
action include the permanent and continuing nuisance stemming from the maintenance
and operation of the Pacific Terrace Mausoleum, the breach of the City's statutory duty
and failure to abate public nuisances under Health and Safety Code Sections 9575 and
9676; damages for nuisance under Civil Code Section 3479, Health and Safety Code
sections 9575 and 9676, and Rancho Palos Verdes Municipal Code chapter 17.28 and
64; declaratory relief under Code of Civil Procedure Section 1060.
CONCLUSION:
A mediation process was envisioned in the conditions of approval in the 2015 CUP
approval. Based upon the above recital of events, the City Council came to the
conclusion that a renewed mediation effort was warranted. For some time the
mediation was stalled as the City wanted a 3 -party mediation to include Green Hills,
while Vista Verde did not. Eventually the City agreed to the 2 -party mediation. The
reasoning behind the City Council's position was as follows:
1. The City has sympathy for the negative impacts the Vista Verde homeowners
experience from the proximity of the mausoleum rooftop burials to their units.
2. The City believes that the approvals granted to Green Hills were legal, that
Green Hills obtained vested rights, and that City cannot interfere with Green Hills'
operations if conducted in accordance with the CUP and state law.
3. The City believes that the mediation process amongst the parties is in the best
interests of all.
4. The City believes that the litigation route will be lengthy and costly2.
5. The City believes the monetary amount is warranted.
6. The City believes that as many of the Vista Verde Owners as possible should be
included.
7. The Vista Verde Owners should be free to pursue claims against Green Hills.
Based upon these conclusions, the City entered in good faith into the mediation process
described above.
2 City Attorney costs over 18 months were $185,000: $68,836 in litigation and $116,061 in Green Hills
related costs (Annual Review, Inspiration Slope, Public Records requests, CUP Appeal, Planning).
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The outlines of the potential settlement are described above. The City Attorney's office
recommends the City Council approve the Settlement and Release Agreement with the
Vista Verde homeowners.
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SETTLEMENT AND RELEASE AGREEMENT
VISTA VERDE HOMEOWNER'S ASSOCIATION AND
CITY OF RANCHO PALOS VERDES
This SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is made as of
March , 2017 by and between the CITY OF RANCHO PALOS VERDES, a municipal
corporation ("City"), Noel W. Weiss ("Weiss"); Vista Verde Owner's Association, a
California non-profit corporation ("HOA"); and
■ Sharon L. Loveys & Karl L. Loveys (Unit 105);
■ Deborah K. Landes as Trustee of the Deborah K. Landes Revocable Trust dated
September 1, 2016 and as an individual and Linda Ott (Unit 102);
■ Carl J. Eichert & Linda M. Eichert (Unit 103);
■ Curtis D. Wuestenhagen (Unit 104);
■ H. Quinn Roberts (Unit _);
■ Julie M. Reynolds (Unit 106);
■ Veronica E. Lawlor (Unit 107);
■ Barbara Hughes -Astbury as Trustee of the Barbara K. Hughes separate
Property Trust Dated April 23, 1996 as an individual & John Astbury (Unit
108),
■ Lane Mayhew (Unit 109);
■ Kwangsik Kim & Heeyoung Kim (Unit 110);
■ Nevada E. Prewitt (Unit 111);
■ Anthony Terralavoro & Attillia Terralavoro (Unit 112);
■ Lisa Pierson as Trustee under the Lisa Pierson Family Trust dated 12/17/96) and
as an individual (Unit 114);
■ Charmayne Annette Geier & Matthew Erich Geier (Unit 201);
■ Linda Barbara Spears as Trustee of the Linda Barbara Spears Revocable Trust
dated 02-05-2005 and as an individual (Unit 202);
■ Brian Carter & Lindsay Marie Carter (Unit 203);
■ Joanna Jones -Reed (Unit 204);
■ Lorraine S. Brown (Unit 205);
■ Elmer W. Scheel Jr. as Trustee of the Elmer W. Scheel Jr. Trust and as an
individual (Unit 206);
■ Nadejda V. Gueorguieva (Unit 207);
■ Richard J. Martin as Trustee of the Richard John Martin Revocable Trust dated
May 29, 2007 and as an individual and Matthew H. Martin (Unit 208);
■ Rhys Williams and Wendy Williams (Unit 210)
(collectively, the "Owners"). Collectively the Owners and the HOA, are referred to as the
"Claimants."
RECITALS
A. The City is a municipal corporation with land use jurisdiction within its territory
which includes a 121 acre cemetery known as Green Hills Memorial Park ("Memorial Park")
operated by Green Hills Memorial Park, a California corporation ("Green Hills").
B. Vista Verde Condominiums ("Vista Verde") is a 25 unit condominium complex
built in 1981 in the City of Lomita, County of Los Angeles, State of California, adjacent to the
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Memorial Park. Vista Verde is located on real property described as Tract 36718, as per Map
recorded in Book 962, Pages 90 and 91 of Maps, in the Office of the County Recorder of Los
Angeles County (the real property is hereinafter referred to as "Vista Verde"). The Owners own
21 of the 25 units in Vista Verde. The other four owners are referred to herein as the "Non -
Litigating Owners" and are entering into a separate release agreement with City and are not
parties hereto.
C. The Memorial Park was established in 1948. In 1991, the City approved a Master
Plan for the Memorial Park, along with specified variances and a conditional use permit. In
2007, following a noticed public hearing, on April 24, 2007, by Resolution No. 2007-32, the
Planning Commission approved a revision to the Master Plan and revised the Conditional Use
Permit ("CUP"). No revisions to the existing variance was were sought or granted. As revised,
the Master Plan allowed the construction of a 10,366 sq. ft., 3 -story mausoleum known as the
Pacific Terrace Mausoleum (referred to herein as "Pacific Terrace Mausoleum") to be built in the
northwestern part of the Memorial Park reducing the zoning setback from 40 feet to 8 feet from
the property line adjacent to the Vista Verde Condominiums. Subsequently, building plans were
submitted by Green Hills and building permits were issued on February 16, 2012. Construction
of the Pacific Terrace Mausoleum began in 2012 and was completed on September 11, 2013.
Pursuant to the Conditional Use Permit for the Memorial Park, the City has issued building
permits for various other improvements in the Memorial Park, has performed reviews of Green
Hills' operation of the Memorial Park, and has otherwise exercised its authority in respect to the
Memorial Park.
D. The Owners and the HOA, and their legal counsel, Noel Weiss, have raised
various issues concerning the City's granting of the CUP and issuance of permits, and
concerning Green Hills' operation of the Memorial Park. The Owners have filed claims, filed
three lawsuits, made public records requests, filed administrative appeals of various actions,
threatened other actions concerning the City's compliance with the Brown Act, and concerning
the conduct of annual reviews, and contemplated other legal actions.
E. The Owners filed various claims and demands against City. These were rejected
by City on February 8, 2016. Three lawsuits have been filed by the Owners and are currently
pending in Los Angeles Superior Court. These lawsuits, referred to herein as the "Pending
Lawsuits," are as follows;
■ Loveys v. City of Rancho Palos
BS 160652, filed Feb. 16, 2016
■ Loveys v. City of Rancho Palos
BC629637, filed Aug. 5, 2016
■ Loveys v. City of Rancho Palos
BS166493, filed Dec. 5, 2016
Verdes, Los Angeles Superior Court Case No.
Verdes, Los Angeles Superior Court Case No.
Verdes, Los Angeles Superior Court Case No.
Additionally certain of the Claimants have filed administrative appeals pursuant to the Rancho
Palos Verdes Municipal Code, have sought Code interpretations, and appeals of various
decisions are now pending. The Pending Lawsuits, the claims and demands, the administrative
actions, and all other disputes which have been or could be asserted by Claimants are referred to
herein as the "Claims and Disputes."
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F. On February 1, 2017, with the assistance of the Honorable Justice Gary Hastings
acting as mediator, representatives of the City, the HOA, the Owners, and Weiss ("Parties") met
and tentatively agreed to settle all current disputes on the terms set forth in this Agreement.
AGREEMENT
1.0 Settlement Payment.
1.1 Payment. The City will pay $500,000 (the "Payment") in settlement of the
Claims and Disputes by Claimants regarding the operation of the Memorial Park in existence as
of the date of this Agreement, and including all attorneys' fees and costs incurred by the
Claimants. The City shall pay the settlement amount by issuance of a check or warrant to the
Law Office of Noel Weiss Client Trust Account. Payment shall be made by City in accordance
with Section 1.2 after City has received releases from all the Claimants. The date of Payment by
City shall be considered the date of Closing. Weiss shall be responsible for distributing the
Payment to the Claimants. City shall not have any responsibility for such distribution and is not
subject to interpleader or other legal action should the parties not reach agreement on such
distribution.
1.2 Receipt of Releases & Requests for Dismissal. The HOA shall provide the
City with a certified list with the legal address of the owner of each Vista Verde condominium as
of the date of Closing. It is a condition of Closing, and City will make Payment, only when City
has received (i) an executed Release agreement from each of the Claimants identified in the
Introductory Paragraph above, (ii) an executed Release agreement from each of the Non -
Litigating Owners (unless excused per Sections 1.4 and 5.2), (iii) an executed copy of the
amended Vista Verde Covenants, Conditions, and Restrictions ("CC&Rs"), and (iv) Requests for
Dismissal signed by Weiss of the pending damage lawsuit, and of each of the pending Writ of
Mandamus actions to which Recital Paragraph "E" refers. The releases (the "Releases") will be
in the form attached hereto as Exhibit "A." The amended CC&Rs shall be in the form attached
as Exhibit `B," and be recordable in the records of the Los Angeles County Registrar-
Recorder/County Clerk. The Releases, including from the Non -Litigating Owners, the CC&Rs
and Dismissals shall collectively be the "Closing Documents."
1.3 Closing. Concurrent with the receipt of all of the executed Closing
Documents, City shall record the amended CC&Rs and City shall make payment to Weiss per
Section 1.1. Failure to timely deliver all the Closing Documents to City (at which point City is
authorized to file the Requests for Dismissal) shall have the consequences described in Section
1.4 below.
1.4 Failure to Deliver Closing Documents. From the date of execution of this
Agreement by all parties, Weiss shall have thirty (30) days to deliver (i) all Releases, (ii) the
CC&Rs, and (iii) the Dismissals of the Pending lawsuits (as to the City) to the City Clerk, except
that delivery of Releases from the Non -Litigating Owners may be excused as provided in Section
5.2. It is clearly understood that the damage action (BC629637) against Green Hills will proceed.
If all such Releases and the CC&Rs are not delivered in such time, including from the Non -
Litigating Owners, City shall notify Weiss in writing that this Agreement is suspended until the
earlier of the date of delivery of any missing Releases, and the CC&Rs, or 15 days. City will not
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make the Payment and may not file the Dismissals during such period, until the delivery of the
Releases and CC&Rs is cured. If the failure to deliver all the Releases is not cured in such
additional time, this Settlement shall be void and City shall return to Weiss all the Closing
Documents in its possession; provided that if the only Closing Documents not delivered are one
or more Releases from the Non -Litigating Owners following a good faith effort by Claimants to
deliver such Releases pursuant to Section 5.2, then City shall go forward with the Closing.
2.0 Dismissal and Termination of All Proceedings.
2.1 Delivery of Dismissal. Concurrent with the execution of this Agreement
by the Parties, Weiss shall deliver to City executed Requests for Dismissal, with prejudice, of the
Pending Lawsuits with respect to the City to be held and filed as noted in Paragraph 1.3. These
may not be filed by City except in accordance with Section 1.3.
2.2 Suspension of Proceedings. Upon execution of this Agreement, the parties
will give notice in the Pending Lawsuits of the proposed settlement and shall take the actions
necessary to suspend proceedings for a period of 60 days or such period as they shall mutually
agree.
2.3 Administrative Proceedings. Upon execution of this Agreement, Sharon
Loveys will agree to withdraw her appeal and not further contest ("Lovey's Appeal") the
Director's approval of the combination wall and associated grading to accommodate an
additional burial area and niches to the expansion of the Inspiration SlopeNista del Ponte area
currently before the City's Planning Commission.
3.0 Release of Claims.
3.1 Effective upon execution of this Agreement and Payment as set forth in
Section 1.0 above, the Claimants hereby release, acquit, and forever release and discharge the
City and its agents, employees, assignees, officers, owners and managers, attorneys, and
including council members and elected officials, as well as the members of any committee or
commission or constituent entity ("Released Parties") for any and all claims, demands, losses,
liabilities, causes of action, obligations and claims for damages, lawsuits, costs, attorneys' fees
and expenses of every kind and nature whatsoever, known or unknown, anticipated or
unanticipated, fixed or contingent, which are the subject of the Pending Lawsuits, or arise out of
the same facts, or exist as of the date of this Agreement, with respect to Pacific Terrace, the
Inspiration Slope Mausoleum, or any other current matter involving the operation of Green Hills
Memorial Park. Nothing in this Release precludes Owners from speaking in opposition to the
future expansion of the Pacific Terrace Mausoleum, or its operations, or in making future
administrative claims or contentions concernin'- Green Hills operation or expansion of the
Pacific Terrace Mausoleum, or any other future matter involving the operation of Green Hills
Memorial Park, as provided in Section 4.1.
3.2 The Owners and the HOA certify that they, he or she have read Civil Code
§ 1542, set forth below:
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"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."
After reading and understanding Civil Code section 1542, the Claimants voluntarily waive
the application of Civil Code section 1542 to the claims released in paragraph 3.1 of this
Agreement. The Claimants understand and acknowledge that even if any Owner or the HOA
should eventually suffer damages related to the matters released in paragraph 3.1 above, they will
not be permitted to make any claim against the City for those damages. Furthermore, the Claimants
acknowledge that they intend these consequences even as to claims for damages based on the
matters released in paragraph 3.1 that may exist, and which, if known, would materially affect their
decision to execute this Agreement, regardless of whether their lack of knowledge is the result of
ignorance, oversight, error, negligence, or any other cause.
4.0 Public Meetings.
4.1 Public Meetings. Weiss agrees that he will not speak on the subject of
claims or objections concerning Green Hills' or the Memorial Park's past or future operations at
public meetings of the City or its commissions, committees, constituent bodies (the "Constituent
Bodies") or sponsored forums or similar venues for five (5) years following execution of this
Agreement by all Parties. Nothing herein (i) prevents Weiss from speaking on subjects not
related to Green Hills or the Memorial Park at public meetings of the City or its Constituent
Bodies; (ii) prevents Weiss or the Claimants from taking legal action against Green Hills or its
successors concerning past or future matters; (iii) prevents the Claimants from speaking on their
own behalf or through a different representative at public meetings of the City or its Constituent
Bodies on subject matter related to future issues with Green Hills or the Memorial Park, or
taking legal action concerning such future matters. The Owners and HOA are permitted to speak
at public meetings of the City or its Constituent Bodies on the subject of new facts and
occurrences pertaining to Green Hills or the Memorial Park.
4.2 Weiss. In the event Weiss violates the restrictions above, the presiding
officer at any meeting of the City or any of its Constituent Bodies may rule Weiss out of order
and prevent him from speaking further on the barred subject. Repeated violations will lead to
exclusion from the meeting in accordance with City policies on the conduct of meetings.
4.3 Joint Public Statement. The City, the Owners and the HOA will
collaborate on a joint public statement which will make clear that (i) the City appreciates that the
building of the Mausoleum within 8 feet of the property line and the conduct of rooftop burials
has at times adversely impacted certain residents of Vista Verde Condominiums; (ii) the City
believes Pacific Terrace was legally approved; (iii) the Parties mutually agree that the monies
paid by the City pursuant to the Agreement are accepted by the Owners and the HOA as
reasonable compensation for the responsibility of the City in this matter; (iv) the Owners and the
HOA are grateful that the City Council has listened to them and has agreed to this Agreement;
(v) both Parties are happy to have this matter behind them and are committed to improved
communication in dealing with future issues. A copy of the Joint Public Statement is attached
hereto as Exhibit "C". Owners and the HOA will make no statements to the public other than that
which is set out on Exhibit "C." Owners will further agree to deliver a copy of the Joint Public
01203.0027/343667.11 5
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Statement to any purchaser of his or her Unit as part of the mandatory disclosure provisions
required under State Law. HOA will also agree to include a copy of the Joint Public Statement as
part of its Permanent Minutes thereby affording any prospective purchaser who examines the
HOA's Minutes the opportunity to familiarize himself or herself with the contents of the Joint
Statement.
4.4 Neighborhood Association. City will assist HOA in becoming a member
of a newly formed Neighborhood Association consisting of residents surrounding Green Hills as
part of the City's mitigation efforts respecting Green Hills' operations at such time as all
litigation between Vista Verde and Green Hills is resolved.
5.0 HOA Indemnity Against Claims of Non- Litigating Owners (Unit Nos. 101,
209, 211, & 212)
5.1 Indemnity by HOA. HOA agrees to indemnify and hold the City harmless
from any claims, loses and damages should litigation be commenced against the City by any of
the following four homeowners, the Non -Litigating Owners, who (i) are not parties to the
existing damage litigation against the City to enforce Owners' claims against the City which
arise from the City's approval of the Master Plan Amendment and Building Permit for the
Pacific Terrace Mausoleum as referenced in Recital Paragraph "C" above; (ii) have not timely
filed any claims against the City respecting the same; and (iii) have never timely filed a damage
lawsuit against the City respecting the same:
Unit No. 101— Paul Funk;
Unit No. 209 — Julie & Chip Keye;
Unit No. 211 - David Odaka and Teri Wells; and
Unit No. 212 — Eri Ogura.
City acknowledges that to date, no such claims against the City have been timely made;
no such claims have ever been rejected by the City; and no lawsuit has ever been timely
commenced against the City to enforce any such claims against the City by the aforesaid
individuals concerning the City's actions in approving the Master Plan Amendment or in
granting the building permits to which Recital Paragraph "C" refers. In the event any of these
Non -Litigating Owners (i.e., the owners of Unit Nos. 101, 209, 211, and 212) ever makes a claim
concerning the subject matter of this Release against City and subsequently files a lawsuit to
enforce such a claim, the signatories to this Settlement Agreement acknowledge that the HOA
(i) is obligated to defend City against such claims paying all legal costs and fees for such
defense, and shall pay any judgment resulting from such action, and (ii) is authorized to assess
the owners an amount equivalent to the City's loses therefrom, including all reasonable legal and
defense costs incurred by the City and the HOA. These provisions shall be incorporated in the
HOA bylaws and CC&Rs.
5.2 Separate Settlement Agreement With Non -Litigants. As of the date of the
execution of this Settlement Agreement, Owners and the HOA (the "Claimants") agree to
cooperate with City in procuring the separate Releases of the four units owned by the Non -
Litigating Owners referred to in Paragraph 5.1 above and approval of the CC&R amendment.
This cooperation consists of the Claimants, possibly through the HOA, conducting discussions
01203.0027/343667.11 6
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with the Non -Litigating Owners, and on behalf of City making a good faith offer to the Non -
Litigating Owners to obtain releases of Non -Litigants' claims, in a form similar to the Releases
by Claimants and approval of the CC&R amendment. It is expected that the negotiations for
payment and the release by the Non Litigant Owners (Unit Nos. 101, 209, 211, and 212) will
proceed separate and apart. Claimants and City will work cooperatively together with the
objective of effectuating a complete release of the City by the Non -Litigating Owners (Unit Nos.
101, 209, 211, and 212). City will allow the HOA to first offer said Non -Litigating Owners
compensation which the Non -Litigating Owners find acceptable and to which City will agree to
pay. If and only if no agreement is reached by March 30, 2017, with one or more of said Non -
Litigating Owners may City contact them directly. If a good faith offer has been made to the
Non -Litigating Owners and is accepted, the CC&R amendment shall be recorded at Closing. If
despite a good faith offer having been made through Claimants, and despite City's direct
negotiations, if any of the Non -Litigating Owners refuses to sign the Release and release any
claims, then the failure to obtain such Release will no longer be a condition of Closing under
Section 1.3 and the Parties will proceed with Closing, provided the CC&R Amendment is legally
authorized and can be recorded.
5.3 Recordation of CC&R Amendment Against Units. The Parties shall
mutually agree that the CC&R Amendment shall be recorded.
6.0 Enforcement of Settlement.
6.1 Enforcement; Attorneys' Fees. Except as otherwise provided herein, the
Parties shall each bear their owner attorneys' fees and costs in connection with the Pending
Lawsuits and the negotiation and drafting of this Agreement. In the event of litigation to enforce
or interpret the terms of this Agreement, the prevailing party is entitled to recover attorneys' fees
and costs.
6.2 Controlling Law. This Agreement shall be construed in accordance with,
and all disputes governed by, the laws of the State of California.
6.3 Venue. Legal actions concerning any dispute, claim or matter arising out
of or in relation to this Agreement shall be instituted in the Superior Court of the County of Los
Angeles, State of California, or any other appropriate court in such county, and the parties
covenants and agree to submit to the personal jurisdiction of such court in the event of such
action.
6.4 Notices. Any notice, demand, request, document, consent, approval, or
communication either party desires or is required to give to the other party or any other person
shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of
the City, to the City Manager, and in the case of Claimants, to the person at the address on the
HOA certified list. Either party may change its address by notifying the other party of the
change of address in writing. Notice shall be deemed communicated at the time personally
delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this
Section.
01203.0027/343667.11 7
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6.5 No Waiver. No breach of any provision of this Agreement can be waived
unless it is in writing. Waiver of any one breach shall not be deemed to be a waiver of any other
breach of the same or any other provision hereof. This Agreement may be amended only by a
written agreement executed by all of the parties.
7.0 General Provisions.
7.1 Binding on Successors and Related Entities. The CC&R Amendment shall
be recorded to put future owners on notice of the Green Hills Memorial Park operations and the
terms of this Agreement. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, assigns, officers, directors, principals, employees,
subsidiaries, parent entities, affiliated agents and corporations, attorneys, and representatives.
7.2 No Admissions. As this Agreement is intended to be a compromise of
disputed claims by all parties, nothing in this Agreement shall be construed to be an admission of
liability by any party with respect to any of the issues raised in any of the proceedings specified
in this Agreement.
7.3 Freely and Voluntarily Entered Into. The Owners, the HOA, Weiss, and
the City have read and understand the terms of this Agreement. The Parties mutually warrant and
represent that this Agreement is executed voluntarily and without duress or undue influence on
the part of or on behalf of any party hereto. The Parties acknowledge that they have been
represented by counsel of their choice in negotiations for and in the preparation of this
Agreement, that each has had this Agreement explained by counsel, and are fully aware of the
contents of this Agreement and of its legal effect.
7.4 Construction of this Agreement. Any rule of construction to the effect
that any ambiguity is to be resolved against the drafting party shall not be applied to the
interpretation of this Agreement.
7.5 Integration/Amendment. This Agreement constitutes the entire agreement
between the parties, and all other prior agreements, arrangements or understandings, written or
oral, are merged into and superseded by the terms of this Agreement which may not be altered,
modified, or otherwise changed except by a writing signed by the duly authorized representatives
of all of the parties to this Agreement.
7.6 Counterparts. This Agreement may be executed in counterparts. Facsimile
or email signatures shall be deemed to be as effective as originals for the purposes of this
Agreement. This Agreement has been entered into as of the date set forth above.
7.7 Binding Agreement. This agreement shall be binding upon the City upon
its execution by the Mayor of the City, following approval by a majority, i.e., three members, of
the Rancho Palos Verdes City Council.
7.8 Severability. If any portion of this Agreement is declared by a court of
competent jurisdiction to be invalid or unenforceable, then the remaining provisions of this
Agreement shall remain in full force and effect.
01203.0027/343667.11 8
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7.9 Authority to enter Agreement. The persons signing this Agreement
represent and warrant that they are duly authorized to enter into this Agreement and that their
signatures on this Agreement shall be binding on them in their respective capacities and on the
entities they represent.
EXHIBITS:
Exhibit A: Releases
Exhibit B: CC&R Amendment
Exhibit C Joint Public Statement
CITY: CITY OF RANCHO PALOS VERDES,
a municipal corporation
IM
Brian Campbell, Mayor
Dated: , 2017
Attest:
EMILY COLBORN, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLC
M.
DAVID J. ALESHIRE,
City Attorney
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
01203.0027/343667.11 9
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WEISS:
NOEL WEISS, Attorney at Law
ASSOCIATION: VISTA VERDE OWNERS' ASSOCIATION,
a California non-profit corporation
OWNERS:
Unit 102
APN 7552-001-067
Unit 103
APN 7552-001-068
Unit 104
APN 7552.001-069
Unit 105
APN 7552-001-070
By:
Print Name:
Its: President
By:
Print Name:
Its: Secretary
Deborah K. Landes, Trustee of the Deborah K. Landes
Revocable Trust dated September 1, 2016 and as an individual
Linda Ott
Carl J. Eichert
Linda M. Eichert
Curtis D. Wuestenhagen
Sharon L. Loveys as Trustee of the Loveys Trust Dated
9/16/09 and as an individual
Karl L. Loveys as Trustee of the Loveys Trust Dated 9/16/09
and as an individual
01203.0027/343667.11 10
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Unit 106
APN 7552-001-071
Julie M. Reynolds
Unit 107
APN 7552-001-072
Veronica E. Lawlor
Unit 108
APN 7552-001-073
Barbara K. Hughes -Astbury, Trustee of the Barbara K. Hughes
separate Property Trust Dated April 23, 1996 and as an
individual
John Astbury
Unit 109
APN 7552-001-074
Lane Mayhew
Unit 110
APN 7552-001-075
Kwangsik Kim
Heeyoung Kim
Unit 111
APN 7552-001-076
Nevada E. Prewitt
Unit 112
APN 7552-001-077
Anthony Terralavoro
Attilia Terralavoro
Unit 114
APN 7552-001-078
Lisa Pierson as Trustee under the Lisa Pierson
Family Trust dated 12/17/96 and as an individual
01203.0027/343667.11 11
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Unit 201
APN 7552-001-079
Matthew Erich Geier
Unit 208
APN 7552-001-086
Richard J. Martin as Trustee of The Richard John Martin
Revocable Trust Dated May 29, 2007 and as an individual
Matthew H. Martin
01203.0027/343667.11 12
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Charmayne Annette Geier
Unit 202
APN 7552-001-080
Linda Barbara Spears, as trustee of the Linda Barbara Spears
Revocable Trust dated 02-05-2005 and as an individual
Unit 203
APN 7552-001-081
Brian Carter
Lindsay Marie Carter
Unit 204
APN 7552-001-082
Joanna Jones Reed
Unit 205
APN 7552-001-083
Lorraine S. Brown
Unit 206
APN 7552-001-084
Elmer W. Scheel Jr. as Trustee of the Elmer W. Scheel Jr.
Trust and as an individual
Unit 207
APN 7552-001-085
Nadejda V. Gueorguieva
Unit 208
APN 7552-001-086
Richard J. Martin as Trustee of The Richard John Martin
Revocable Trust Dated May 29, 2007 and as an individual
Matthew H. Martin
01203.0027/343667.11 12
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Unit 210
APN 7552-001-088
Rhys Williams
Wendy Williams
Unit
APN 7552-001- H. Quinn Roberts
01203.0027/343667.11 13
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EXHIBIT A
CITY OF RANCHO PALOS VE"ES
COVENANT AND RELEASE AGREEMENT NO. 1
This RELEASE AGREEMENT (the "Release") is executed on ,
2017 ("Settlement Date") between the condominium owners listed below executing this Release
("Owner" or "Releasing Party") and the CITY OF RANCHO PALOS VERDES ("City") entered
into by the parties with reference to the Settlement and Release Agreement among the same parties
(the "Settlement Agreement"). The Releasing Party is the owner of that certain interest in real
property known as Unit , which is in the Vista Verde Condominiums at 2110 Palos Verdes
Drive North, Lomita, California.
RECITALS
A. Parties and Interests. The real property subject to this release is described herein as
the "Property" and is described in the "Description of Real Property" as described below next to the
signature lines of the Owner..
B. Disputes. The Vista Verde Condominium is located adjacent to the Green Hills
Memorial Park, a cemetery established in 1948 in the City of Rancho Palos Verdes. Within the
Memorial Park is the Pacific Terrace Mausoleum ("Mausoleum"), a 3 -story mausoleum located only
8 feet from the property line and lying directly north of the Vista Verde Condominiums. The
building permits to construct the Pacific Terrace Mausoleum were issued by the City on February
16, 2012, and the certificate of occupancy issued on September 11, 2013. The Mausoleum was
permitted to be constructed by the City's approval on April 24, 2007 of the Green Hills revised
Master Plan and Conditional Use Permit which approved a reduction of the 40 -foot zoning setback
for the Mausoleum's building footprint to 8 feet from the Vista Verde property line. Accordingly,
rooftop interments occur on the rooftop of the Mausoleum and continue to be visible and audible to
residents of Vista Verde despite various mitigation measures having been instituted. Consequently,
the Vista Verde Owners suffered in varying degrees a loss of privacy, quiet enjoyment, and
emotional distress in the use and occupancy of Vista Verde units and common areas. Based on these
impacts, over a period of several years, the Owners appeared at numerous Planning Commission and
City Council meetings, initiated administrative citations and appeals, contested the legality of the
approvals, requested that the City adopt mitigation measures and modify conditions of approval,
sought removal of the structure or monetary compensation, and sought other relief.
C. Litigation. Based on the foregoing, when not satisfied with the City's actions,
various lawsuits were instituted. Causes of action involved the permanent and continuing nuisance
stemming from the maintenance and operation of the Pacific Terrace Mausoleum, the breach of the
City's statutory duty and failure to abate public nuisances under Health and Safety Code Sections
9575 and 9676; damages for nuisance under Civil Code Section 3479, Health and Safety Code
sections 9575 and 9676, and Rancho Palos Verdes Municipal Code chapter 17.28 and 64;
declaratory relief under Code of Civil Procedure Section 1060. These claims were raised in the
following pending lawsuits:
01203.0027/356301.6 Page 1
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• Loveys v. City of Rancho Palos Verdes, Los Angeles Superior Court Case No.
BS 160652, filed Feb. 16, 2016
• Loveys v. City of Rancho Palos Verdes, Los Angeles Superior Court Case No.
BC629637, filed Aug. 5, 2016
• Loveys v. City of Rancho Palos Verdes, Los Angeles Superior Court Case No.
BS166493, filed Dec. 5, 2016
D. Mediation and Settlement. On February 1, 2017, with the assistance of the
Honorable Justice Gary Hastings acting as mediator, representatives of the City, the HOA, and the
Owners, and their legal counsel met and tentatively agreed to settle all current disputes on the terms
to be set forth in a settlement agreement. Thereafter a Settlement and Release Agreement was
negotiated by the parties which required that a full and complete release (this "Release") would be
executed by each Releasing Party and that certain amendments would be made to the Covenants,
Conditions and Restrictions of the Project (the "CC&Rs") and be recorded and bind successors and
assigns.
FOR GOOD AND VALUABLE CONSIDERATION THE RECEIPT OF WHICH IS
HEREBY ACKNOWLEDGED, the Releasing Party agrees and binds his successors and assigns as
follows:
Consideration. Pursuant to the terms of the Settlement and Release
Agreement which is made a part hereof as if incorporated herein in its entirety, City is paying Five
Hundred Thousand Dollars ($500,000) collectively through the Releasing Parties' legal counsel to be
distributed as the Releasing Parties see fit. The Settlement Agreement release provisions are
summarized below.
2. Release. The Releasing Parties hereby release, acquit and forever release and
discharge the City and its agents, employees, assignees, officers, owners and managers, attorneys,
and including council members and elected officials, as well as the members of any committee or
commission or constituent entity ("Released Parties") for any and all claims, demands, losses,
liabilities, causes of action, obligations and claims for damages, lawsuits, costs, attorneys' fees and
expenses of every kind and nature whatsoever, known or unknown, anticipated or unanticipated,
fixed or contingent, which are the subject of the Pending Lawsuits, or arise out of the same facts or
exist as of the date of this Agreement, with respect to Pacific Terrace Mausoleum, or any other
current matter involving the operation of Green Hills Memorial Park. Nothing in this Release
precludes the Releasing Parties from opposing the future expansion of the Pacific Terrace
Mausoleum, or making future administrative claims or contentions concerning future Green Hills'
expansion, or any other future matter involving the operation of Green Hills Memorial Park, as
provided in the Settlement Agreement.
3. Duty of Owner and HOA to Inform Successors. The Owner and HOA have
a duty to inform potential buyers and successors of the provisions of the Settlement Agreement and
the CC&Rs shall be amended consistent with the Settlement Agreement (the "Amended CC&Rs").
The Joint Public Statement shall be given to any prospective purchasers and the HOA shall have the
duty to defend actions and assess Owners as specified in the Settlement Agreement.
01203.0027/356301.6 Page 2
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4. Binding on Successors and Assigns. The Amended CC&Rs, set forth in the
Settlement Agreement shall inure to the benefit of the City and its successors and assigns and
successors in interest; shall be binding upon Owner, its successors and assigns and successors in
interest; and may be enforced by the City.
5. Authority. Each person executing this Release represents and warrants that
he/she owns the specified Condominium and has authority to execute this Release without the
consent of any other person or entity.
By signing below, I acknowledge and represent that I HAVE READ THIS
AGREEMENT CAREFULLY, I FULLY UNDERSTAND ITS CONTENTS, I
VOLUNTARILY AGREE TO ITS TERMS AND THAT THIS AGREEMENT HAS BEEN
TRANSLATED, IF NECESSARY, TO MY SATISFACTION.
No oral representations, statements or inducements, apart from this written agreement, have
been made. If any portion of this agreement is declared invalid by a court, the remainder shall
continue in full force and effect.
DESCRIPTION OF REAL PROPERTY:
OWNER/RELEASING PARTY:
Unit No.
APN: 7552 -001 -
Legal Description:
A condominium comprised of-
£Parcel
Parcel1: That portion of Lot 1 of Tract No.
36718, in the City of Lomita, County of Los
Angeles, State of California as per map recorded
in Book 962, Page(s) 90 & 91 of Maps, in the
office of the County Record of said County,
shown and defined as Unit _ on the
Condominium Plan recorded on December 29,
1981 as Instrument No. 81-1267371 of the
Official Records of said County.
Parcel 2: An undivided 1/24th interest in and to
Lot 1 of said Tract No. 36718 except therefrom
those portions shown and defined as Units I
through 25, inclusive of said Condominium Plan.
Parcel 3: The exclusive easements for parking and
storage as defined in the Condominium Plan.
01203.0027/356301.6 Page 3
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Recorded at the request of
and when recorded mail to:
Vista Verde Owners' Association
2110 Palos Verdes Drive North
Lomita, CA 90717
Attn:
EXHIBIT B
[SPACE ABOVE FOR RECORDER'S USE ONLY]
THIRD AMENDMENT TO VISTA VERDE DECLARATION
OF COVENANTS, CONDITIONS AND RESTRICTIONS
This THIRD AMENDMENT TO VISTA VERDE DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS (this "Amendment") is made as of , 2017 by the
Vista Verde Owners' Association ("Association").
RECITALS
A. The Association consists of each of the owners of certain real property (each an
"Owner") located in the City of Lomita, County of Los Angeles, State of California, which is more
particularly described as Tract 36718, as per Map recorded in Book 962, Pages 90 and 91 of Maps, in
the Office of the County Recorder of Los Angeles County (the real property is hereinafter referred to as
"Vista Verde"). The original Vista Verde Declaration of Covenants, Conditions and Restrictions was
recorded on November 5, 19 81 in the Official Records of Los Angeles County, California as Instrument
No. 81-1096717, and was amended by (i) that certain First Amendment to Vista Verde Declaration of
Covenants, Conditions and Restrictions dated November 9, 2000 and recorded on November 17, 2000
in the Official Records of Los Angeles County, California as Instrument No. 00-1801558; and (ii) that
certain Amendment to Declaration of Covenants, Conditions and Restrictions dated September 27, 2005
and recorded on October 28, 2005 in the Official Records of Los Angeles County, California as
Instrument No. 05-2611257 (collectively "Declaration").
B. Vista Verde is located adjacent to the Green Hills Memorial Park, a cemetery established
in 1948 in the City of Rancho Palos Verdes. Within the Green Hills Memorial Park is the Pacific
Terrace Mausoleum, a 3 -story mausoleum located only 8 feet from the property line and lying directly
north of the Vista Verde Condominiums ("Mausoleum"). The building permits to construct the
Mausoleum were issued by the City of Rancho Palos Verdes on February 16, 2012, and the certificate
of occupancy issued on September 11, 2013. The Mausoleum was permitted to be constructed by the
City's approval on April 24, 2007 of the Green Hills revised Master Plan which approved a reduction of
the forty (40) foot zoning setback for the Mausoleum's building footprint to eight (8) feet from the
Vista Verde property line. Accordingly, rooftop interments occur on the rooftop of the Mausoleum and
continue to be visible and audible to residents of Vista Verde despite various mitigation measures
having been instituted. Consequently, the Owners suffered in varying degrees a loss of privacy, quiet
enjoyment, and emotional distress in the use and occupancy of Vista Verde units and the Vista Verde
common areas.
C. Based on the foregoing, various lawsuits were instituted by the Association and certain
Owners. Causes of action involved the permanent and continuing nuisance stemming from the
maintenance and operation of the Mausoleum; the breach of the City's statutory duty and failure to
01203.0027/360194.7 1
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EXHIBIT B
abate public nuisances under Health and Safety Code Sections 9575 and 9676; damages for nuisance
under Civil Code Section 3479, Health and Safety Code sections 9575 and 9676, and Rancho Palos
Verdes Municipal Code chapter 17.28 and 64; and declaratory relief under Code of Civil Procedure
Section 1060. Each of the various lawsuits concerned the entitlement of the Mausoleum and the
building permits issued for the Mausoleum.
D. On February 1, 2017, representatives of the City of Rancho Palos Verdes, the
Association, and the Owners, met and agreed to settle all current disputes on the terms to be set forth in
a settlement agreement, which was executed on , 2017 ("Settlement Agreement"). In
addition to City of Rancho Palos Verdes paying a settlement amount to various parties, the Association
specifically agreed to indemnify and hold the City of Rancho Palos Verdes harmless for any and all
current and future claims regarding the entitlement of the Mausoleum, including the issuance of
building permits for the Mausoleum by the City of Rancho Palos Verdes, with the Association obligated
to assess Owners as necessary to honor its obligations.
E. This Amendment memorializes the covenant not to sue and indemnity agreed to among
the City of Rancho Palos Verdes, the Association, and the Owners. Violation of the covenant and
breach of the indemnity will result in the Association and Owners being legally obligated to reimburse
the City for the sums specified in the Settlement Agreement (including its attorney's fees) with the
Association legally obligated to assess the Owners under the Declaration in order to promptly pay such
amounts to the City of Rancho Palos Verdes.
F. On , 2017, all actions necessary were taken by the Association to approve this
Amendment as required by the Declaration and the Bylaws of the Association, and the President of the
Association is duly authorized to approve this Amendment on behalf of the Association.
NOW, THEREFORE, in reliance on the foregoing recitals, which are hereby incorporated by
this reference, this Amendment is hereby made as follows:
1. Amendments. The Declaration is hereby modified as follows:
A. Section 6.02.D. Additional Assessments. Section 6.02.D. is amended to add the
following to the end of the provision:
"This power to levy further assessments includes any assessments required for the
Association to comply with the obligations under Section 8. 10, including, but not limited to,
additional assessments necessary to pay the required amounts to the City of Rancho Palos
Verdes as set forth therein."
B. Section 6.02.E. Limitations on Assessments. Section 6.02.E. is amended to
add the following to the end of the provision:
"Notwithstanding the foregoing, nothing herein shall limit the assessments required for
the Association to comply with the obligations under Section 8. 10, including, but not limited to,
additional assessments necessary to pay the required amounts to the City of Rancho Palos
Verdes as set forth therein."
C. Section 6.02.F. Approval of Additional Assessments. Section 6.021. is
amended to add the following to the end of the provision:
01203.0027/360194.7
2
•
EXHIBIT B
"Notwithstanding the foregoing, the Association and the Owners shall approve any
additional assessment required for the Association to comply with the obligations under Section
8. 10, including, but not limited to, additional assessments necessary to pay the required amounts
to the City of Rancho Palos Verdes as set forth therein."
D. Section 6.02.G. Payment of Assessments. Section 6.02.G. is amended to add
the following to the end of the provision:
"Owners shall pay any assessments required for the Association to comply with the
obligations under Section 8. 10, including, but not limited to, additional assessments necessary
to pay the required amounts to the City of Rancho Palos Verdes as set forth therein, in a single
payment."
E. Section 8.10. Covenant Not to Sue; Indemnity of City of Rancho Palos
Verdes; Obligation to Provide Notice to Future Owners. The Declaration is amended to add
the following new Section 8.10:
01203.0027/360194.7
"8.10 COVENANT NOT TO SUE; INDEMNITY OF CITY OF RANCHO
PALOS VERDES• OBLIGATION TO PROVIDE NOTICE TO FUTURE
OWNERS.
A. Covenant Not to Sue. The Owners and Association specifically
covenant and agree not to bring any claim or lawsuit against the City of Rancho Palos
Verdes regarding the entitlement of the Mausoleum, including the issuance of building
permits for the Mausoleum by the City of Rancho Palos Verdes or any other matters as
specifically set forth in the Settlement Agreement ("Covenant"). However, this
Covenant does not preclude the Association or any Owners from making future claims
or contentions concerning any future expansion of Green Hills Memorial Park not
related to the City of Rancho Palos Verdes' approval of the Master Plan Amendment
and Building Permits for the Pacific Terrace Mausoleum.
B. Indemnity. The Association shall indemnify and hold the City of Rancho
Palos Verdes harmless, and is authorized to so indemnify and hold the City of Rancho
Palos Verdes harmless, against any and all claims, demands, losses, liabilities, causes of
action, obligations and claims for damages, lawsuits, costs, attorneys' fees and expenses
of every kind and nature whatsoever, known or unknown, anticipated or unanticipated,
fixed or contingent, brought against the City of Rancho Palos Verdes by the
Association, any members of the Association, or any Owner, in violation of the
Covenant. All such amounts shall be promptly paid to the City of Rancho Palos Verdes
within thirty (30) days of written demand from the City of Rancho Palos Verdes. If any
amounts are not paid when due, such amounts shall thereafter bear interest at the rate of
ten percent (10%) per annum but not in excess of the maximum amount allowed by law,
until paid in full.
C. Assessment Obligation. The indemnity obligations set forth above shall
be limited to assessments under the Declaration against Owners and any successor or
assigns provided that Association shall promptly assess such amounts and diligently
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EXHIBIT B
enforce same to the maximum extent allowed by law and to promptly pay same to the
City of Rancho Palos Verdes.
D. Notice to Future Owners. In addition to any other documents required
by law, prior to transferring title to a new Owner of a condominium (by purchase or
otherwise), the Association and the existing Owner of the condominium are obligated to
provide a copy of the Declaration, including this Amendment, to the new Owner prior to
the transfer of title."
2. Third Party Beneficiary. This Amendment is material consideration to the City of
Rancho Palos Verdes for the Settlement Agreement and, therefore, the City of Rancho Palos Verdes is a
third party beneficiary with the right to enforce this Amendment.
3. Effective Date. This Amendment shall be effective upon due execution and recordation
in the Official Records of Los Angeles County and a recorded copy is delivered to the City of Rancho
Palos Verdes.
4. Amendment. None of the provisions in this Amendment may be amended, repealed or
replaced without the written agreement of the City of Rancho Palos Verdes as evidenced by a copy
recorded in the Official Records of Los Angeles County.
5. Interpretation. This Amendment shall be liberally interpreted so as to enforce the
obligations of the Association and Owners to protect the City of Rancho Palos Verdes as set forth in the
Settlement Agreement and this Amendment.
6. Authority; Binding. The President of the Association represents and warrants to the
City of Rancho Palos Verdes (i) that he/she is duly authorized to execute this Amendment and hereby
declares that all necessary steps, as required by the Declaration, the Bylaws of the Association, or any
other document or legal requirement, have been taken by the Association to approve this Amendment,
including, but not limited to, any required vote by the Owners; and (ii) that this Amendment is binding
against the Association, Owners and Vista Verde.
7. Continuing Effect. Except as expressly set forth herein, no other amendment,
modification or alteration of said Declaration is made or intended, and all the terms and Conditions of
said Declaration, as amended, shall remain in full for and effect.
IN WITNESS WHEREOF, this Amendment to the Vista Verde Declaration of Covenants,
conditions and Restrictions has been executed as of the date first above written.
01203.0027/360194.7
VISTA VERDE OWNERS' ASSOCIATION,
A California nonprofit mutual benefit corporation
By:
President
M-
M
Secretary
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EXHIBIT B
A notary public or other officer completing this certificate verifies only the identity of the individual
who signed the document to which this certificate is attached, and not the truthfulness, accuracy or
validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On , 2017 before me, , a notary public, personally
appeared who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
SEAL:
01203.0027/360194.7
5
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EXHIBIT B
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On , 2017 before me, , a notary public,
personally appeared who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
SEAL:
01203.0027/360194.7
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EXHIBIT C
JOINT PUBLIC STATEMENT BETWEEN THE CITY OF RANCHO PALOS VERDES
AND THE RESIDENTS OF VISTA VERDE CONDOMINIUMS
The City of Rancho Palos Verdes and the owners of the Vista Verde Condominiums which
are in Lomita, adjacent to the Green Hills Memorial Park are happy today to announce the resolution
of a lengthy dispute arising from the City's decision in 2007 to approve a new Master Plan and
Conditional Use Permit for the Memorial Park reducing the setback for the 3 -story Pacific Terrace
Mausoleum adjacent to the Vista Verde Condominiums from 40 feet to 8 feet.
The Memorial Park Cemetery was established in 1948. In 1991, the City approved a Master
Plan for the Memorial Park, along with a conditional use permit. In 2007, following a noticed public
hearing, on April 24, 2007, by Resolution No. 2007-32, the Planning Commission approved a
revision to the Master Plan and revised the Conditional Use Permit ("CUP"). As revised, the Master
Plan allowed the construction of a 10,366 sq. ft., 3 -story mausoleum known as the Pacific Terrace
Mausoleum to be built in the northwestern part of the Memorial Park, allowing for -a setback reduced
from 40 feet under the zoning to 8 feet from the property line adjacent to the Vista Verde
Condominiums. Subsequently, building plans were submitted by Green Hills and building permits
were issued on February 16, 2012. Construction of the Pacific Terrace Mausoleum began in 2012
and was completed on September 11, 2013. Pursuant to the Conditional Use Permit for the
Memorial Park, the City has issued building permits for various other improvements in the Memorial
Park, has performed reviews of Green Hills' operation of the Memorial Park, and has otherwise
exercised its authority in respect to the Memorial Park.
The Owners and the HOA, and their legal counsel, Noel Weiss, have raised various issues
concerning the City's granting of the CUP and issuance of permits, and concerning Green Hills'
operation of the Memorial Park. It took two years and numerous hearings to complete the 2014
annual review. The Owners have filed claims, filed three lawsuits, made public records requests,
filed administrative appeals of various actions, challenged annual reviews and contemplated other
legal actions.
The Owners filed various claims and demands against City. These were rejected by City on
February 8, 2016. Three lawsuits were filed by the Owners and are currently pending in Los
Angeles Superior Court. These lawsuits are as follows;
Loveys v. City of Rancho Palos Verdes, Los Angeles Superior Court Case No.
BS160652, filed Feb. 16, 2016
Loveys v. City of Rancho Palos Verdes, Los Angeles Superior Court Case No.
BC629637, filed Aug. 5, 2016
Loveys v. City of Rancho Palos Verdes, Los Angeles Superior Court Case No.
BS166493, filed Dec. 5, 2016
On February 1, 2017, with the assistance of the Honorable Justice Gary Hastings acting as
mediator, representatives of the City, the HOA, the Owners, and Weiss ("Parties") met and
tentatively agreed to settle all current disputes. Thereafter a comprehensive Settlement and Release
Agreement was negotiated.
01203.0027/354379.2
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EXHIBIT C
The Settlement Agreement is on the City Council's agenda for April 18, 2017, for approval.
It provides for a payment by the City to the owners of $500,000 with releases by the individual
owners of their claims. The Settlement Agreement is a public document. The Vista Verde
Condominium owners intend to continue their litigation against Green Hills.
The City of Rancho Palos Verdes ("City") appreciates that the building of the Pacific Terrace
Mausoleum, within 8 feet of the property line, and the conduct of rooftop burials thereon has at times
adversely impacted certain residents of Vista Verde Condominiums. Some of the problems which
subsequently arose were foreseeable. This was unfortunate.
However, the City believes the Mausoleum was legally approved. The Vista Verde
Condominium Owners, the Vista Verde Owner's Association, and the City mutually agree that the
monies paid by the City pursuant to the Settlement and Release Agreement are accepted by the
Owners and the HOA as reasonable compensation for the responsibility of the City in this matter.
The Owners and the HOA are grateful that the City Council has listened to them and has
agreed to the Settlement. The Owners, the HOA, and the City are happy to have this matter behind
them and are committed to improved communication in dealing with future issues.
01203.0027/354379.2
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