CC SR 20160719 J - Green Hills Inspiration Slope WaiverRANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 07/19/2016
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA DESCRIPTION:
Consideration and possible action to receive and file a report on the Inspiration Slope
Mausoleum Waiver of Claims at Green Hills Memorial Park.
RECOMMENDED COUNCIL ACTION:
(1) Receive and file a report on the Waiver of Claims between the City and Green
Hills for the storage of rooftop vaults on the Inspiration Slope Mausoleum building
at Green Hills Memorial Park.
FISCAL IMPACT: None
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: So Kim, Senior Planned f'
REVIEWED BY: Ara Mihranian, AICP, Director of Community Development°
APPROVED BY: Doug Willmore, City Manager'
ATTACHED SUPPORTING DOCUMENTS:
A. Waiver of Claims for Inspiration Slope Rooftop Burials (page A-1)
BACKGROUND AND DISCUSSION:
In 2013, the City approved and issued a building permit for the construction of the
Inspiration Slope Mausoleum building. Construction of the mausoleum building began
in June 2015 and the building permits for the structure are set to expire in December
2016 while the related grading permits are set to expire in November 2017, unless
extensions are granted.
As the City Council is aware, the City and Green Hills reached an understanding that if
Green Hills executed an agreeable waiver that Green Hills would be allowed to place
and bury concrete vaults on the rooftop of the Inspiration Slope Mausoleum building,
provided that they do not use the vaults for burials until first obtaining approval through
a public hearing process. The City Manager decided that it was in the City's best
interest to seek this arrangement for the benefit of the residents in the Peninsula Verde
neighborhood. He determined that this arrangement benefits RPV residents for two
reasons: (1) Storing the vaults on the rooftop meant that most residents could not see
them (especially when compared to storing in Area 5 or on the surrounding hillside
around Inspiration Slope); and, (2) Being able to backfill the rooftop area meant that the
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construction and earth moving around Inspiration Slope could stop construction related
activity leading to noise, dust, and neighbor complaints. The City Manager believed it
was in the City's best interests to take steps to bring the construction to an end to the
benefit of the surrounding neighbors. The City Attorney memorialized the written waiver
between the City and Green Hills, in which Green Hills promises to not sue the City for
damages if approval for rooftop burials is not granted.
A copy of the signed Waiver of Claims is provided (Attachment A). Among other things,
the signed Waiver includes the following language:
That Condition 1 k of the City Council -adopted conditions of approval provides for
review of rooftop burials by the Director, or directs the referral to the Planning
Commission, and that, given this Condition, Green Hills may not perform such
rooftop burials without the prescribed administrative review and approval.
2. That without submitting its application and getting Director or Planning
Commission approval, Green Hills is not permitted to perform rooftop burials on
the Inspiration Slope Mausoleum.
3. That Green Hills has requested that it be permitted to place the rooftop vaults
and bury them, and may do so, waiving any claims against City for damages
should the City subsequently not approve the rooftop burials. "However, in the
event that the City decides to deny any application to perform rooftop burials...
Green Hills agrees not to utilize the buried concrete vaults for rooftop
burials ... and releases the City from any liability or damages to Green Hills
related to the placement of the vaults arising from such decision, and assumes
all risks therefore."
4. Green Hills agrees that the provisions of the Waiver are reasonable and do not
impose an undue burden on Green Hills.
5. Green Hills agrees that requiring an application for approval of rooftop burials is
within the City's police power, and that the City has the authority to exercise its
police power or governmental authority, or take other appropriate actions to
address issues of public health, safety, and welfare.
6. The City shall not be liable to Green Hills for any loss or damages related to the
placement of the vaults whatsoever, and waives the right to future claims for
damages arising out of the City's rejection of any application for rooftop burials,
but Green Hills reserves the right that it has always had to challenge the validity
of any such denial.
7. Green Hills agrees to indemnify and defend the City against third -party claims
arising from the City's agreement to allow the placement of the vaults.
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In summary, Green Hills agrees that they do not have the right to perform rooftop
burials without first obtaining approval from the City through a public hearing process;
that it is within the City's police power to require this process; that should the City deny
their request even after the vaults are placed, they cannot seek damages against the
City; that they have reserved the right to seek to overturn such denial by legal process;
and that they agree to defend the City against third -party claims. With this Waiver,
Green Hills may bury the vaults on the rooftop of the Inspiration Slope building. The
executed agreement has been posted on the City's Green Hills webpage for public
review (http://www.rpvca.gov/376/Green-Hills-Memorial-Park-Master-Plan) and a list -
serve message linking to the agreement and this City Council agenda report was
transmitted on July 12, 2016.
C ITV OF RANCHO PALOS VERDES
OFFICE OF THE CITY MANAGED
June 28, 2016
Mr. John Resich
Chairman of the Board
Green Hills Memorial Park
27501 S. Western Avenue
Rancho Palos Verdes, CA 90275
Re: Inspiration Slone Rooftop Burials; Waiver of Claims
Dear Mr. Resich:
This letter memorializes the agreement between the City of Rancho Palos Verdes (City)
and Green Hills Memorial Park (Green Hills) regarding the placement of concrete vaults on the
rooftop of the Inspiration Slope Mausoleum (the Mausoleum) by Green Hills. The representatives
of the parties reached an oral understanding to permit placement of concrete vaults on the rooftop
of the Inspiration Slope Mausoleum provided that Green Hills agrees that the placement of the
vaults does not provide Green Hills with: (i) any entitlement to conduct rooftop burials on the
Mausoleum; or (ii) any claims for damages concerning the placement of the vaults should the City
deny Green Hills' application for rooftop burials on the Mausoleum. This letter agreement
confirms the oral understandings.
1. Factual BackLround
Green Hills operates a memorial park and cemetery located in the City. Green Hills'
operation and development of the memorial park is governed by the 2007 Master Plan, including
all later amendments (the Master Plan), and by City Council Resolution No. 2015-12, revising and
amending conditions of approval for Green Hills' Conditional Use Permit (CUP) and amending
the Master Plan (the Resolution). The Master Plan contemplates the construction of the
Mausoleum in Area 2 of the memorial park, and further contemplates the possibility of rooftop
burials thereon.
The CUP's conditions of approval were revised and updated due to a recent controversy
surrounding rooftop burials at another of Green Hill's mausoleums, the Pacific Terrace/Memorial
Terrace Mausoleum in Area 11. The rooftop burials in the Pacific Terrace Mausoleum are visible
from the condominium building just north of the structure, and have generated complaints and
litigation. The City has expended significant public resources to resolve the issues surrounding the
rooftop burials, and will expend significant further resources in the foreseeable future to resolve
the litigation.
30940 HAWTI ORNE BLVD. / RANCI10 PALOS VERDES, CA 90275-5391 / (310) 544-5207 FAx (310) 544-5291 / WWw.RPVCA.GOV
PRINTED ON RECYCLED PAPER A-1
Mr. John Resich
June 28, 2016
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Green Hills acknowledges that the Resolution amended Green Hills' CUP, which now
provides for an administrative substantial compliance review so that, except for improvements
consistent with the Master Plan or those subject to the Planning Commission, all improvements
must be reviewed by the Director to determine if they substantially comply with the Master Plan
(Condition Lk.). Condition Lk. specifically provides that review of an application for rooftop
burials can be performed by the Director. The Director can, at his or her discretion, refer a matter
directly to the Planning Commission. Condition 2 provides that the following matters are directly
reviewable by the Planning Commission: (i) the construction or modification of a mausoleum or
other significant building, (ii) any significant change to the grading, (iii) any development of a
future phase of Green Hills where the Master Plan has not designated a development plan or uses,
or (iv) any amendment to the Master Plan.
Thus, while rooftop burials at Inspiration Slope are contemplated in the Master Plan,
Condition Lk. of the CUP now provides that Green Hills may not perform such burials prior to
obtaining administrative approval from the Director or the Planning Commission, pursuant to the
Resolution.
In anticipation of possible rooftop burials, Green Hills has purchased and with the oral
understanding memorialized herein, installed concrete vaults on the roof of the Mausoleum. Green
Hills intends to cover the vaults with dirt and ground cover, per Condition 22 of the CUP. However,
Green Hills has not to date filed an application to conduct rooftop burials at the Mausoleum per
Condition Lk of the CUP. Unless and until Green Hills obtains permission from the Director or
the Planning Commission, Condition Lk provides that Green Hills may not perform rooftop burials
at the Mausoleum.
Green Hills does not have a readily available storage space for the vaults which have been
ordered and has requested that it be allowed to (i) install the vaults on the roof top, and (ii) bury
and backfill them. The City Manager has agreed that Green Hills may store the empty concrete
burial vaults on the roof of the Mausoleum, and that such vaults shall be buried and the entirety of
the roof shall be backfilled with dirt and ground cover, provided that Green Hills waives any claims
for damages against the City related to the placement of the vaults should rooftop burials not be
approved for the rooftop at the Mausoleum.
Accordingly, if Green Hills submits an application to perform rooftop burials at the
Mausoleum, and should the application be approved by the City, the concrete vaults may be
utilized for that purpose. However, in the event that the City decides to deny any application by
Green Hills to perform rooftop burials at the Inspiration Slope Mausoleum, Green Hills agrees not
to utilize the buried concrete vaults for rooftop burials unless and until it complies with applicable
laws and releases the City from any liability or damages to Green Hills related to the placement of
the vaults arising from such decision, and assumes all risks therefore, as provided below.
Based on the above, and on the City's police power expressly granted to it by state law,
Green Hills agrees that the provisions of this Agreement are reasonable and do not impose an
undue burden on Green Hills, and that the provisions of this Agreement are consistent with the
agreed -to conditions of approval in the Resolution.
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Mr. John Resich
June 28, 2016
Page 3
2. Waiver of Claims ALFainst the Ci
Green Hills acknowledges that any future application for rooftop burials at the Inspiration
Slope Mausoleum is within the City's police power expressly granted to it by state law to grant or
deny and is consistent with Condition 41.a. of the CUP. Further, the City shall not be liable to
Green Hills for any loss or damages related to the placement of the vaults whatsoever arising out
of the City's denial of any such application for rooftop burials at Inspiration Slope. Green Hills
waives all rights to future claims for damages arising out of the City's rejection of Green Hills'
application for rooftop burials at the Inspiration Slope Mausoleum, but reserves the right to legally
challenge the validity of any such denial except as may be otherwise provided herein. Green Hills
further acknowledges that the denial of such an application does not constitute a compensable
interest that would give rise to a takings or other monetary claim.
3. Police Power.
Green Hills acknowledges that the City_has the authority to grant or deny discretionary
applications for uses within the City in part based on concerns of public health, safety, and welfare.
Green Hills agrees that the City retains its authority to determine the appropriateness of rooftop
burials at the Mausoleum at a future date.
Nothing in this Agreement, shall limit the City's authority to exercise its police powers or
governmental authority, or take other appropriate actions to address issues of public health, safety,
and welfare. Green Hills acknowledges that no rights arise under this Agreement as to the City's
police power, including but not limited to, the approval or denial of any required permits. Further,
this Agreement does not constitute a development agreement pursuant to Government Code
Section 65864, and thus the Mausoleum remains subject to all applicable statutes, ordinances,
regulations, and codes.
4. Indemnity.
Green Hills, as a material part of the consideration to the City, shall indemnify, defend,
protect and hold the City, its officers, directors, agents, representatives, City Council members and
employees (collectively, "City"), harmless from and against all liens and encumbrances of any
nature whatsoever which may arise from this Agreement or in the exercise of Green Hills' rights
hereunder, and from any and all claims, causes of action, liabilities, costs and expenses (including
reasonable attorneys' fees), losses or damages arising from City's agreement to allow the
placement of the concrete vaults on the rooftop of the Inspiration Slope Mausoleum, or any act or
failure to act of Green Hills or Green Hills's agents, employees, construction workers, or invitees
(collectively, "Green Hills"), except those arising out of the sole willful misconduct of the City.
5. Waiver of Civil Code Section 1542.
By releasing and forever discharging claims both known and unknown as provided herein,
Green Hills expressly waives any and all rights under California Civil Code Section 1542 in
connection with any Claim or Liability against the City. Civil Code Section 1542 provides:
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Mr. John Resich
June 28, 2016
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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT 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.
Green Hills waives and relinquishes any and all rights and benefits which it may have under
Section 1542 of the California Civil Code and any similar code provision or protection. Green
Hills represents that it has performed a full and complete investigation of the facts pertaining to
this Agreement. Nevertheless, Green Hills acknowledges and is aware that it may hereafter
discover facts in addition to or different than those which it now knows or believes to be true with
respect to potential claims, allegations, events and facts set forth herein, but it is Green Hill's
intention hereby to fully and finally settle and release any and all matters, disputes, and differences,
known or unknown, suspected or unsuspected, which may exist, as against the City, and in
furtherance of this intention, the release herein given shall be and remain in effect as a full and
complete general release notwithstanding discovery or existence of any such additional or different
facts.
6. Integration: Amendment.
This Agreement contains all of the agreements of the parties and cannot be modified,
terminated, or rescinded, in whole or in part, except by an instrument in writing signed by all
parties hereto. Green Hills acknowledges that it was permitted to commence installation of the
concrete vaults based on an oral understanding consistent with the terms hereof and which is
memorialized in this letter agreement. Green Hills agrees that it cannot use the fact that it was
allowed to install the vaults pursuant to this agreement against the City or the validity of the City's
actions in any manner in any subsequent legal proceeding.
7. Interpretation and Enforcement; Governing Law.
This Agreement shall be construed and interpreted both as to validity and performance of
the parties in accordance with the laws of the State of California. Legal actions concerning any
dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted and
maintained in the Superior Court of the County of Los Angeles, State of California, or in any other
appropriate court with jurisdiction in such county, and the parties agree to submit to the personal
jurisdiction of such court.
8. PrevailinLy Party Attorney Fees.
In the event that either party shall commence any legal action or proceeding to enforce or
interpret this Agreement, the prevailing party in such action or proceeding shall be entitled to
recover its costs of suit, including reasonable attorneys' fees. The venue for any litigation shall be
Los Angeles County. In the event of any asserted ambiguity in, or dispute regarding, the
interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by
any rules of interpretation providing for interpretation against the party who causes the uncertainty
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Mr. John Resich
June 28, 2016
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to exist or against the drafting party. This Agreement shall be governed by and interpreted under
the laws of the State of California.
9. Severability.
If any part of this Agreement is held to be illegal or unenforceable by a court of competent
jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably
possible.
Please carefully review the terms of this letter agreement and, if you find them acceptable,
execute the enclosed copy. This agreement may be executed in counterparts and by fax signature.
By signing below, Parties represent and warranty that they have authority to bind the Parties to
this Agreement. Please return the executed letter agreement by fax and by enclosing an executed
original in the envelope provided.
Sincerely,
Doug Willmore
City Manager
Cc: City Council
City Clerk
I HAVE RECEIVED THE ORIGINAL OF THIS LETTER AGREEMENT AND
UNDERSTAND THE FOREGOING TERMS AND CONDITIONS AND AGREE TO THEM. I
HAVE THE AUTHORITY TO SIGN ON BEHALF OF AND BIND GREEN HILLS.
GREEN HI-L� MMIAL PARK
Dated: June 28, 2016 By:
011 John Resich
Chairman of the Board
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