HomeMy WebLinkAboutC-3058(A) - Development Agreement No. 2006-001, First Amendment to Development Agreement No. 7f
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Recording Requested By and
When Recorded Return to:
City Clerk
City of Newport Beach
3300 Newport Boulevard
P. O. Box 1768
Newport Beach, CA 92659-1768
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Recorded in Official Records, Orange County
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Fee Exempt - Gov't Code §6103
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FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT NO. 7
BETWEEN
THE CITY OF NEWPORT BEACH
AND
PACIFIC VIEW MEMORIAL PARK
Approved September 25, 2007
Ordinance No. 2007-15
(Space above for Recorder's Use)
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT NO. 7
(Pacific View)
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT NO. 7 is made and
entered into effective as of October 25, 2007 by and among the CITY OF NEWPORT BEACH,
a charter city and a municipal corporation organized and existing under the laws of the State of
California (the "City"), and SCI CALIFORNIA FUNERAL SERVICES, INC. doing business as
PACIFIC VIEW MEMORIAL PARK ("Pacific View"), successor -in -interest to PIERCE
BROTHERS, a California corporation, with reference to the following facts and intentions:
RECITALS
A. Pacific View is the owner of approximately forty-five (45) acres of real property
located at 3500 Pacific View Drive in the City bounded by residential uses to the north and east,
San Joaquin Hills Road to the south, and Big Canyon Reservoir and Harbor Day School to the
west (the "Property").
B. On July 10, 1995, the Newport Beach City Council certified a Negative
Declaration, approved certain land use entitlement permits for development of the Property,
including Use Permit No. 3518, and adopted Ordinance No. 95-26 approving Development
Agreement No. 7 between the City and Pierce Brothers, a California corporation doing business
as Pacific View Memorial Park, recorded in the Official Records of Orange County, California
on September 8, 1995 as Instrument No. 95-0392537 (the "Development Agreement"). The
Development Agreement grants to Pacific View statutory vested rights to develop the Property in
accordance with the terms, conditions and exhibits contained in the Development Agreement.
C. Pursuant to the provisions of the General Corporation Law of the State of
California and by Certificate of Ownership dated December 31, 2001, filed in the office of the
Secretary of State of the State of California, SCI California Funeral Services, Inc. acquired all of
the outstanding shares of Pierce Brothers and merged Pierce Brothers into SCI California
Funeral Services, Inc. to become effective on December 31, 2001. Under the terms of the
Certificate of Ownership, Pierce Brothers was determined to be the disappearing corporation and
SCI California Funeral Services, Inc. continued in existence as the surviving corporation.
D. Pacific View is proposing to amend Use Permit No. 3518 by Use Permit No.
2006-040 (the "Use Permit Amendment") and amend Development Agreement No. 7 by
Development Agreement No. 2006-001 (the "First Amendment") and make appropriate changes
to the Technical Site Plan, Preliminary Landscape Plan and Section Diagram through Building
Sites E and H attached to the Development Agreement as Exhibits "C," "D" and "F," to remove
a 7,200 square foot Community Mausoleum in Building Site H, Area 8 and replace it with a
maximum of six (6) Family Mausolea having a total of 2024 square feet and ground burial
terraced garden estates (as governed by the restrictions in Section 4(10.)(b) of the Development
Agreement) and associated Landscape planting to the rear and around the Family Mausolea to
buffer each structure from views of residents in the surrounding community. The Use Permit
Amendment will establish the maximum allowable size of the Family Mausolea structures at 17
feet in height, 22 feet in width and 17 feet in depth, for four (4) Family Mausolea for Building
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Envelopes H.1, H.2, H.3 and H.4 and two (2) Family Mausolea with a maximum of 15 feet in
height, 22 feet in width and 12 feet in depth for Building Envelopes H.5 and H.6 to be located
within Building Site H, Area 8.
E. After giving appropriate notice, the City Planning Commission held a public
hearing to consider the First Amendment on August 9, 2007 and voted to recommend approval
of the same.
F. After a duly noticed public hearing, the City Council approved execution of this
First Amendment pursuant to Ordinance No. 2007-15, adopted on September 25, 2007.
G. This First Amendment is consistent with the City's General Plan and associated
amendments, and other applicable ordinances, plans and policies of the City. This First
Amendment is also consistent with the purpose and intent of the provisions of Section 65864 et
seq. of the California Government Code, and Chapter 15.45 of the Newport Beach Municipal
Code.
H. An initial study has been prepared for the Use Permit Amendment and this First
Amendment, which determined that the changes proposed in the Use Permit Amendment and
this First Amendment would not have a significant impact on the environment. Therefore, a
Negative Declaration has been prepared for the Use Permit Amendment and this First
Amendment, which is consistent with the California Environmental Quality Act and was
certified by the City Council on September 11, 2007.
I. Based on the foregoing and subject to the terms and conditions set forth herein,
City and Pacific View desire to enter into this First Amendment to Development Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants herein
contained, and having determined that the foregoing recitals are true and correct and should be
and hereby are incorporated into this First Amendment, Pacific View and the City agree as
follows:
AGREEMENT
1. Section 1.4 of the Development Agreement entitled Development of the Property
is hereby amended to read as follows:
1.4 Development of the Property. This Agreement grants
Pacific View the statutory and contractual vested right to develop the
Property during the Term of this Agreement, as extended by the First
Amendment, consistent with Pacific View Memorial Park's Technical Site
Plan attached as Exhibit "C", as amended, subject to compliance with the
conditions and mitigation measures set forth in Section 3 with respect to
the Discretionary Approvals as defined in Section 2.11 of the
Development Agreement, as amended, as well as the additional conditions
relating to public benefit set forth in Section 4 and other portions of the
Development Agreement, as amended.
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2. Section 1.5 of the Development Agreement entitled Planning Commission/City
Council Hearings is hereby amended to add the following paragraph at the end of Section 1.5:
After giving appropriate notice, the Planning Commission held a public hearing to
consider the First Amendment on August 9, 2007 and voted to recommend
approval of the same. After a duly noticed public hearing, the City Council
approved execution of the First Amendment pursuant to Ordinance No. 2007-15,
adopted on September 25, 2007.
3. Section 1.8 of the Development Agreement entitled City Ordinance is hereby
amended to add the following sentence:
On September 25, 2007, the City Council adopted Ordinance No. 2007-15
approving the First Amendment and authorizing the City Council to enter into the
First Amendment. The Adopting Ordinance will become effective on October 25,
2007.
4. Section 2.1 of the Development Agreement entitled Adopting Ordinance is hereby
amended to read as follows:
2.1 The "Adopting Ordinance" refers to City Ordinance No. 95-26,
adopted on July 10, 1995 by the City Council, which approved and authorized the
City to enter into this Agreement. With respect to the First Amendment, the
"First Amendment Adopting Ordinance" refers to City Ordinance No. 2007-15
adopted on September 25, 2007 by the City Council, which approved and
authorized the City to enter into the First Amendment.
5. Section 2.2 of the Development Agreement entitled Agreement is hereby amended
to read as follows:
2.2 "Agreement" refers to this Development Agreement No. 7 between
the City and Pacific View, approved by the City Council on July 10, 1995. The
"First Amendment Agreement" refers to this First Amendment to Development
Agreement No. 7, approved by the City Council on September 25, 2007.
6. Section 2.4 of the Development Agreement entitled Approval Date is hereby
amended to read as follows:
The "Approval Date" for purposes of the Development Agreement means
the date on which the City Council voted to adopt the Adopting Ordinance
approving Development Agreement No. 7. The "First Amendment Approval
Date" refers to the date on which the City Council voted to adopt the Adopting
Ordinance approving the First Amendment.
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7. Section 2.11 of the Development Agreement entitled Discretionary Approvals is
hereby amended to read as follows:
"Discretionary Approvals" shall collectively mean as follows: with
respect to the approvals granted in 1995, the Negative Declaration certified on
July 10, 1995, General Plan Amendment No. 94-1(F), Use Permit No. 3518,
Development Agreement No. 7, and Site Plan Review No. 69, and with respect to
the 2007 approvals, the Use Permit No. 2006-040, Development Agreement No.
2006-001, and Negative Declaration No. 2007-01.
8. Section 2.12 of the Development Agreement entitled Effective Date is hereby
amended to read as follows:
2.12 The "Effective Date" for purposes of the Development Agreement
means the effective date of the Adopting Ordinance approving the Development
Agreement. The "First Amendment Effective Date" for purposes of the First
Amendment means the effective date of the Adopting Ordinance approving the
First Amendment.
9. Section 2.14 of the Development Agreement is hereby amended to read as
follows:
An "Exhibit" refers to an Exhibit to the Development Agreement and the
First Amendment. All Exhibits are incorporated as a substantive part of the
Development Agreement and First Amendment. The Exhibits to the
Development Agreement and First Amendment are:
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Exhibit A: Legal Description of Property
Exhibit B: Map of Property
Exhibit C: The Technical Site Plan dated July 10, 1995, as amended and dated
on July 27, 2007.
Exhibit D: Preliminary Landscape Plan dated July 10, 1995, as amended and
dated on July 27, 2007.
Exhibit E: Building Site G Section Diagrams dated July 10, 1995. Reference
points: Lots 19, 21, 23 & 28)
Exhibit F: Building Site E & H Section Diagram dated July 10, 1995, as
amended and dated on July 27, 2007. (Reference point: Lot 7)
Exhibit G: Estoppel Certificate
Exhibit H: Restrictive Covenant
Exhibit I: Garden of Valor Improvement Plans dated July 10, 1995.
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Exhibit J: Computer Visual Simulations dated July 10, 2007.
10. Section 2.13 of the Development Agreement (defining "Estoppel Certificate") is
renumbered to Section 2.14 and the following definition is added in the place of definition
Section 2.13:
2.13 "Estate Gardens" means an area where ground burials are
permitted and which may include retaining walls, benches, monuments, gardens
and landscaping, governed by the restrictions set forth in Section 4(10.)(b.).
11. Sections 2.13 through 2.24, which include the definitions for Estoppel Certificate,
Exhibit, Existing General Regulations, Future General Regulations, General Regulations,
General Plan, Includes, Mortgagee, Notice, Parties, Planning Commission and Project Specific
Approvals, are renumbered to Sections 2.14 through 2.25, respectively.
12. Section 3.1(1.)(c.) of the Development Agreement entitled Buffer Area
Landscaping/Irrigation System is hereby amended to read as follows:
c. Buffer Area Landscaping/Irrigation System. The Buffer Area shall
be landscaped and improved with an irrigation system. Except for slope areas, the
Buffer Area shall be provided with a below ground permanent irrigation system.
Slope areas shall be improved with an above -ground irrigation system consisting
of U.V. resistant PVC piping. The landscaping shall be installed in accordance
with a final landscape plan prepared by a licensed landscape architect which has
been approved by the Planning Director and which fully complies with the
preliminary landscape plan, attached as Exhibit "D," as amended (the "Final
Landscape Plan"). The Final Landscape Plan submitted by Pacific View shall
depict location of planting, the minimum number of planting required, and the
type and size of plantings such that, in comparison with the Preliminary
Landscape Plan, there will be the same screening of Community Mausolea,
Family Mausolea and Building Sites E, D, F, G and H from the perspective of
ground floor views of the existing residences adjacent to the eastern property line
of the Property consistent with the 430 foot mean sea level elevation limitation in
the "Height Limitation Area" designated on the Technical Site Plan (Exhibit "C,"
as amended).
13. Section 3.1(1.)(d.) of the Development Agreement entitled Installation of
Landscaping and Irrigation is hereby amended to read as follows:
d. Installation of Landscaping and Irrigation. The installation of all
required Buffer Area landscaping and related irrigation shall be initiated as
described by Section 4.6 of this Agreement, but prior to issuance of building
permits for the construction of the remaining phase of Sunset Court in Building
Site G. Except as provided in Section 4.6 of this Agreement, the remainder of
landscaping and related irrigation shall be installed during the individual
Community Mausolea projects.
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All landscaping within the "Height Limitation Area," including
Building Sites E, F and G on Exhibit "C" of this Agreement, shall be maintained
by Pacific View at or below 430 feet elevation above mean sea level in such a
way so as to preserve night light, water and mountain views from existing
residences.
14. Section 3.1(1.)(e.)(3) of the Development Agreement is hereby amended to read
as follows:
(3) Slopes behind the new Family Mausolea in Building Site H shall
conform to the Sections depicted in Exhibit "F," as amended.
15. Section 3.1(2.) of the Development Agreement entitled Height Limit is hereby
amended to read as follows:
2. Height Limit. All structures shall comply with the 28/32-foot
height limitation measured from the elevations set forth in Exhibit "C" of this
Agreement. In addition, no structure or landscaping shall exceed 430 feet
elevation mean sea level in the "Height Limitation Area," including Building
Sites E, F and G on Exhibit "C" of the Development Agreement.
16. Section 3.1(4.) of the Development Agreement entitled Mausoleum Design is
hereby amended to read as follows:
4. Mausoleum Design. All roofs, eaves and facias of new garden
crypts and community mausolea shall be constructed of material, color, texture,
thickness and pitch to blend with, and complement, the architectural style of the
original structures within the park (e.g., Lagunita and Palm Courts). Blank walls
of Community Mausolea in Building Sites E and G shall be screened in
accordance with the Final Landscape Plan.
17. Section 3.1(9.) of the Development Agreement entitled Archaeological and
Paleontological Resources is hereby amended to read as follows:
9. Archaeological and Paleontological Resources. Prior to issuance
of a grading permit for development as provided in the First Amendment, the
applicant shall demonstrate to the Planning Department that the project will
comply with Council Policies K-4 and K-5 regarding archaeological and
paleontological resource investigation, surveillance and recovery.
18. Section 3.2 of the Development Agreement entitled Use Permit No. 3518
Conditions is hereby amended to be entitled "Use Permit No. 3518 and Use Permit No.
2006-040 Conditions:"
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19. Section 3.2(1.) of the Development Agreement is hereby amended to read as
follows:
1. Exhibit "C" depicts the approximate size, configuration and
location of building envelopes for future Community Mausolea to be constructed
within the Property. Community Mausoleum shall mean any mausoleum building
or crypt wall structure containing interment spaces capable of accommodating
casketed remains, and which are available to the public at large. Future
Community Mausolea shall be permitted only in Building Sites A, C, E and G and
within the Building Envelopes specified on the Technical Site Plan (Exhibit "C,"
as amended).
20. Section 3.2(2.) is hereby amended to add new Subsections (f) and (g) to provide
as follows:
f. Religious, ornamental and other vertical objects shall not be
permitted on the roof or protrude above the roofline of the Family Mausolea
located in Building Site H, Area 8.
g. Estate Gardens shall be constructed into the slope supported by
retaining walls consistent with the visual simulations prepared by the City and as
shown on Exhibit "F," as amended. No monuments, fences, gates or other
elements except plant material shall exceed the top height of the walls of the
Estate Gardens or the total height of the terraced slope.
21. Section 3.2(2.)(a.) of the Development Agreement is hereby amended to read as
follows:
a. Family Mausolea and Columbaria shall not exceed 15 feet in
height, 22 feet in width and 12 feet in depth; provided, however, in Building Site
G, Family Mausolea and Columbaria shall not exceed 14 feet in height. In
Building Site H, there shall be no more than six (6) Family Mausolea, as follows:
a total of two (2) Family Mausolea may be built in Building Envelopes 5 and 6,
and are limited in size to a maximum of 15 feet in height, 22 feet in width and 12
feet in depth; and in Building Envelopes 1, 2, 3, and 4, a total of four (4) Family
Mausolea may be built, not to exceed a maximum of 17 feet in height, 22 feet in
width and 17 feet in depth, as depicted on Exhibit "D," as amended.
22. Section 3.2(2.)(b.) of the Development Agreement is hereby amended to read as
follows:
b. Family Mausolea and Columbaria shall be permitted in Building
Site D. Family Mausolea and Estate Gardens shall be permitted in Building Site
H. Pad height elevations and finish floor elevations for new Family Mausolea
shall comply with elevations indicated on Exhibits "C," "D" and "F," as amended.
23. Section 3.2(3.) of the Development Agreement is hereby amended to read as
follows:
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3. The General Plan Amendment and Technical Site Plan provides
for a maximum of 30,000 square feet of administrative offices and support
facilities, 114,480 square feet of Community Mausolea, and 12,000 square feet of
Family Mausolea. Square footage for Columbaria, if any, shall be deducted from
Community or Family Mausolea allotments at Pacific View's option. The
allotments described in this subsection include development on -site as of the date
of this Agreement. As described in Section 4.1, overhangs, eaves, walkways, and
similar architectural features and improvements shall not be counted against
permitted square footage.
24. Section 3.2(10.) of the Development Agreement entitled Minor Adjustments is
hereby amended to read as follows:
10. Minor Adjustments. Given the extended period of years over
which the property will be developed, minor adjustments necessary for safety,
maintenance, slope engineering, landscaping, the engineering of building pads,
and the reorientation of structures within existing building envelopes, shall be
allowed with the approval of the Planning Director, so long as such minor
adjustments are consistent with the building envelopes and at or below the
building height limits shown on Technical Site Plan Exhibit "C," as amended, and
do not involve changes or additions to the number, type, height or placement of
structures (other than changes in the orientation of structures within building
envelopes specified in accordance with Exhibit "C," as amended).
25. Section 3.2 is hereby amended to add a new Subsection (11) to provide as
follows:
11. All conditions of Use Permit No. 3518 and No. 2006-001 are
hereby incorporated as conditions of this Development Agreement.
26. Section 4(2.)(e) of the Development Agreement is hereby amended to read as
follows:
(e) Roof elevations of new Family Mausolea in Building Site H shall
not exceed the heights indicated on Exhibits "D" and "F."
27. Section 4(2.)(f) of the Development Agreement is hereby amended to read as
follows:
(f) Pad elevations of new Family Mausolea in Building Site H shall
comply with the pad elevations indicated on Exhibits "D" and "F."
28. Section 4(5.) of the Development Agreement entitled Phasing is hereby amended
to read as follows:
5. Phasing. Pacific View may develop the Community Mausolea in
Building Sites E and G in one or more phases. For the purposes of this
Agreement a "phase" shall mean the construction of one or more Community
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Mausolea structure(s) within one or more of the Building Envelopes shown on the
Technical Site Plan (Exhibit "C," as amended).
The first phase shall include the completion of Sunset Court within
Building Site G (but may, in Pacific View's discretion, also include one or more
additional Community Mausolea in Building Site G).
A minimum period of thirty (30) months shall be required to have elapsed
between the completion of construction of any phase and the initiation of
construction of any subsequent phase. Construction of each phase shall be
completed within nine (9) months of the commencement of construction.
Subject to the requirement that Pacific View commence the additional
screening of Sunset Court required by Section 4.4 and issuance of appropriate
permits, construction of the first phase authorized by this Agreement may
commence upon the Effective Date of the Development Agreement. The phasing
requirements in this Agreement pertain exclusively to the grading and site
preparation for, and construction of, new Community Mausolea and do not apply
to any Family Mausolea, Columbaria or other improvement, structure, or
appurtenance of the Property. The additional screening to Sunset Court required
by Section 4.4 shall not be considered a "phase" for purposes of this Agreement.
29. Section 4(6.) of the Development Agreement entitled Buffer Zone Grading and
Landscaping is hereby amended to read as follows:
Buffer Zone Grading and Landscaping. Pacific View shall commence
study and analysis of the grading and landscaping for the Buffer area and
Building Sites E & G within sixty days after expiration of the applicable Statute
of Limitations, assuming no legal challenge has been filed to this Agreement or
the Discretionary Approvals, and thereafter apply for all necessary permits.
Grading for the Buffer Area and Building Sites E & G shall be completed within
six (6) months after commencement of construction of the remainder of the
Sunset Court Mausoleum in Building Site G. Pacific View shall also complete
the installation of landscaping and irrigation systems in the entire Buffer Area as
specified in the Final Landscape Plan within this six (6) month period. Pacific
View shall be permitted to subsequently encroach into, remove a portion of or
otherwise disturb Buffer Area landscaping and irrigation as specified in Section
3.1.1(B).
Within six (6) months of the Effective Date of the Development
Agreement, Pacific View shall plant twenty-six (26) fifteen -gallon trees within
Area 8 (as shown on Exhibits "C" and "D") designated on Exhibit "C" hereto, and
shall plant five (5) twenty -four -inch box trees along the northeasterly boundary of
Building Site D as shown in the Preliminary Landscape Plan.
In Building Site H, Pacific View shall plant landscape buffering consisting
of a total of two (2) thirty -six-inch box trees on the slope around each Family
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Mausoleum Building Envelope as shown on Exhibits "D" and "F," as amended.
The trees shall be planted within (12) twelve months of the effective date of the
First Amendment, or prior to the issuance of a building permit for the first
structure, whichever is earlier. At the time of construction of any Family
Mausoleum in Building Site H, one (1) additional 48" box tree shall be planted at
the side or rear elevation of the structure and one (1) additional 36" box size tree
shall be planted adjacent to the front elevation of the structure as depicted on
Exhibit "D."
Prior to the issuance of a building permit for the first structure in Building
Site H, Pacific View shall submit a Final Landscape Plan that depicts the location,
type and size of all plantings so that, in comparison with the revised Preliminary
Landscape Plan (Exhibit "D," as amended by the First Amendment), there would
be the same amount of screening of Family Mausolea and Estate Gardens in
Building Site "H", Area 8 as in the Preliminary Landscape Plan. The Final
Landscape Plan shall be reviewed and approved by the Planning Department prior
to the issuance of a building permit for the first structure.
Prior to issuance of a certificate of occupancy for any individual Family
Mausoleum, Pacific View shall plant all trees determined by the City, in its sole
discretion, to be necessary to screen the constructed Family Mausoleum in
Building Site H from the ground floor views of the residential properties as
depicted in the computer visual simulations attached and marked as Exhibit "J"
and as shown on Exhibits "D" and "F," attached to the First Amendment.
30. Section 4(10.)(a) of the Development Agreement entitled Building Site E is
hereby amended to read as follows:
(a) Building Site E
Except for the Community Mausoleum and Crypt Wall, Pacific
View is permitted only below ground interment and the installation
of plaques or memorials at or below grade in Building Site E.
Pacific View shall not install pillow blocks, benches, memorials or
other above grade objects (exclusive of landscaping as provided in
the Final Landscape Plan and trash receptacles only as necessary).
Construction of the Community Mausoleum and Crypt Wall in
Building Site E shall not commence prior to January 1, 2014.
31. Section 7.2 of the Development Agreement entitled Term of Agreement is hereby
amended to read as follows:
7.2 Term of Agreement. The term of the Development Agreement
shall begin on the effective date of the First Amendment and continue for
eighteen (18) years unless otherwise terminated or modified pursuant to this
Agreement (including, but not limited to, the extension provisions of Section
11.16 hereof). In addition, the term of this Agreement shall be automatically
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extended for an additional seven (7) year term if, at the end of the expiration of
the initial eighteen (18) year teen, Pacific View has not completed all of the
development authorized by the Development Agreement and the First
Amendment.
32. Section 7.4 of the Development Agreement entitled Amendment of Agreement is
hereby amended to read as follows:
7.4 Amendment of Agreement. Notwithstanding the provisions of
Section 65868 of the California Government Code, Pacific View waives any right
it may have, now or in the future, to amend, change or modify the Development
Agreement, and shall not amend, change or modify, or request or otherwise seek
to amend, change or modify, the Development Agreement for a period of not less
than fifteen (15) years from the effective date of the First Amendment to the
Development Agreement. In the event there is a conflict between this provision
agreeing not to amend, change or modify the Development Agreement with any
other provision of the Development Agreement, statute, ordinance, regulation or
law governing the Development Agreement, this provision and intent shall
govern.
33. Section 11.1 of the Development Agreement entitled Notices is hereby amended
to update the contact information for Pacific View, to read as follows:
To Pacific View: Pacific View Memorial Park
3500 Pacific View Drive
Newport Beach, CA 92663
Attention: Robert Motzkin
With a copy to: Clark & Green Associates
150 Paularino Ave., Suite 160
Costa Mesa, CA 92626
Attention: Michael Green
and a copy to: Hewitt & O'Neil LLP
19900 MacArthur Blvd., Suite 1050
Irvine, CA 92612
Attention: Dennis D. O'Neil, Esq.
34. The Development Agreement is hereby amended to provide that all sections of the
Development Agreement containing the words "Agreement," "this Agreement" or "modified
Agreement" shall also include a reference to this First Amendment.
35. The term "Approval Date" as applied to those sections in the Development
Agreement means the date on which the City Council voted to adopt the Adopting Ordinance
approving the Development Agreement. The term "First Amendment Approval Date" means the
date on which the City Council voted to adopt the Adopting Ordinance approving the First
Amendment.
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36. The Development Agreement is hereby amended to provide that all sections of the
Development Agreement referencing Exhibit "C" (Technical Site Plan), Exhibit "D"
(Preliminary Landscape Plan) and Exhibit "F" (Building Site E &H Section Diagram) shall be as
amended.
37. Counterparts. This First Amendment may be executed in counterparts, each of
which so executed shall be deemed an original, and such counterparts together shall constitute
but one Amendment.
38. No Other Changes. Except as modified by this First Amendment and Exhibits
"C," "D," "F" and "J," the terms and conditions of the Development Agreement, including this
First Amendment and the amendments to Exhibits "C," "D" and "F" and new Exhibit "J,"
remain in full force and effect and shall be incorporated as a part of and interpreted as one
integrated agreement covering the subjects included therein.
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[Signature page follows]
12
IN WITNESS WHEREOF, City and Pacific View have entered into this First
Amendment on the date first written above.
APPROVED FORM:
By:
Robin Clauson, City Attorney
ATTEST:
By:
CITY:
CITY OF NEWPORT BEACH, a Charter City
and municipal corporation organized and
existing un'; r the of the State of
Califo
By:
7i) a
LaVonne Harlkess, City Clerk
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Steve Rosansky, Mayo.
PACIFIC VIEW:
SCI CALIFORNIA FUNERAL SERVICES,
INC. doing business as PACIFIC VIEW
MEMORIAL
By:
Name:
Title:
x
By:
Name. /' 0 : - ...t..)
Title: Y/Cg
All Signatures to be Notarized
13
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TEXH S
STATE OF CAEIEORNIA
ff AR RI S
COUNTY OF ORANGE
On at., al , bef me, »'i.L1ne.++ icde , NotaryPublic in and for said
(MSG. , a
County and State, personally appeared tL .,SitU.sito , personally known to me (or 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 capacit(-y/-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.
WITNESS my hand and official seal.
[SEAL]
i
JUDITH M MARSHALL
Notary Public, State of Texas
My Commission Expires
November 22, 2009
V
TeXAS
STATE e1/2,L4FARINtA
HA RRIS
COUNTY OF RAN E
)
)
SS.
ignature of Notary Public
On °tam.. eV., Ace'! , before me, lad f17. id a Notary Public in and for said
County and State, personally appeared,Ca v . personally known to me (or 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 capacit(-y/-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.
WITNESS my hand and official seal.
[SEAL]
JUDITH M MARSHALL
Notary Public, State of Texas
i F My Commission Expires
November 22, 2009
9gnature of Notary Public
FINAL
9/25/07 10154.3
H&O: #39912 v12
14
• •
STATE OF CALIFORNIA
COUNTY OF ORANGE
)
)
)
ss.
On W DV&O&r7 2001 , before me, elll1an ash' Pi , a Notary Public in and for said
County and State, personally appeared 4.1)SOJI$4l , ersonally known to me (or proved to
me on the basis of satisfactory evidence) to be the person* whose name (ist €3) subscribed to the
within instrument, and acknowledged to me that (he7b4b/cv) executed the same in (fuse /i t)
authorized capacit 14), and that by (hie/le/AO signatures on the instrument the persoriK or the
entity upon behalf of which the person$ acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL]
WAli*NGTON
Canmlulon ♦ 1556952
NO vubllc - California
tosMgSesCounty
My Comm. bakes Mara 2009�
STATE OF CALIFORNIA
COUNTY OF ORANGE
)
)
)
SS.
atur of Notary Public
On , before me, , a Notary Public in and for said
County and State, personally appeared , personally known to me (or 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 capacit(-y/-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.
WITNESS my hand and official seal.
[SEAL]
Signature of Notary Public
FINAL
9/25/07 10154.3
H&O: #39912 v12
15
• •
Exhibit C
The Technical Site Plan dated July 10, 1995, as amended
and dated on July 27, 2007
Bldg. Site "B"
FUNERAL HOME/CHAPEL/
CEMETERY OFFICES
CREMATORY
36' culvert al road all
Future Garage/Sales Office
MAINTENANCE
AREA
Temp. Sales Trailer
Eseemenl ter public tardy
to Pacfic wow Memorial Park
Future Maintenance Building
CheMhk farce emaroachme t
Building Site "C"
Screening Mausoleum
Bldg. envelope (typ.)
(Single -Family Residential)
BLDG. SITE "H"
MAXIMUM (6) FAMILY M
Family Mausolea
Bldg. Site "D"
Concrete Wok
Concrete Drainage Seal
Community Mausoleury
•g. envelope Itye.)
Community Mausoleum
Bldg. envelope (typ.)
Easement ter street purposes
to the City of Newport Beach
6' aide easement tor underground
to Southern Ca&lwr:" Edson Ca
(School)
16' Wide Crypt
(Single-F= Residenji
corona del mar, california
ACIFIC VIEW DRIVE
40 wide road easement to
the City of Newport Beach
war
arden of Remembrance:
Scattering Garden
Future Road
Palm
Garden
Garden of Valor
—N 06' ob.
NOTE' Properly boundaries we,. coM6cled from the bast de.criptlm Fader and
bL?rp were ed from the co gouts rake man a F-1507. ISW Other sources
ih add the Nut alb lopoar*Mk surrey by Boyle ErgkeeOng Corp. the November.
B9t survey by C.J. ()mayn't for Week and Qtr. Notions] Surveyor's Network (53) N.
Cleveland-Maod]e RLL Abort CND 44313 2"1666-4229x and the September. PRO
Flood Insurance Rate Mao el Orange Camly.
(Big Canyon Reservoir)
Ext 1 Ced;rlawn
Ext. 2 Area 5 lh '(�-/ ` It
(Single-Family Residential)
THE BUFFER AREA
Property Line
I Paved Road
--- Unpaved Road
Existing Building
--e- -- Electrical
Storm Sewer
- •--w - Water
- - .e — — Sanitary Sewer
•
Building Site: Area.
4.4 Concrete Drainage Swale
cSingle-Family Residential)
sill.
l`J
(Single- Family Residential)
All elevations shown are above
Mean Sea level.
Concrete Oramege Swab
1
1
1
1
iI
11;
4
a
lim
RD
Dolt
!LEY 27.2007
swan
2.1
OS 7 SHEETS
s •
Exhibit D
Preliminary Landscape Plan dated July 10, 1995, as amended
and dated on July 27, 2007
'aortic View Memorial Park
C —
INDEX MAP
BUILDING SITE "D"
EXISTING TREE MASS
HOA
SLOPE
SEE DEVEL
AGREEME
PMENT
SECTION 3.1.ld
SEE DEVELOPMENT
AGREEMENT SECTION 4.7 l
Tina. aue.q.. .n
EXISTING SHRUB MASSES
maA•0 loth,
•
EROPOSRO EANT P0.1.ErtP
DADS
WWB TREES
FYEIUDI 1OFM4ICAO magi
CINNAMWIUN CAMPRORA
[4./f MAGNOLIA GMNmFlARA
HNJR ILA
PINTS Win DUALS PADVIHNIA
TALL TREES
MEWL •EDMIIP.T NAMR
EUCALYPTUS LBUWXYwN
EUCALYPTUS SIDOR0XY W N
▪ UJEUMOQV QO ISSVA
LIJ A
MNUS 9➢QICA
A▪ LRAm CONPRRTA
0
SMALL TO MEDIUM TREES
Eumaaa TRES
MAGNOLIA
MINIM PINE
S TNC NON
EVERGREEN EVA
CGMMNw
-19.611.6
mum IRON IA
M➢ MON W4
IUQUIDAW6Y GREG
WNRE PAPoIMRX
MONDALE NNE
PPWMb VOX
,TLCT,. IRwA.ir.,...11c NNMYC NA/IF
CUYANIp51s ANACARDIDDTS CARRMWOD»
q.W EUROPA WIYE TRES
AITJOSPORUM XNOAmNMUM QUER@AND PET01PDRUM
TWWRERE:Uu NAE HILL? OAK
• a4UMPRs1RPE
0lTy GUSTING BUFFER .TONE TREE NAMED 13 TUPrHRUANN m.
19M PER DEVELOPMENT AGRNXIXTGONyE0M 1b
SEE DEVELOPMENT AGREEMENT
SECTION 4.6
•
3111311118
IALLSKEEWS BELOW CAN UH PRUNRO TO Awn/ma. PROJECT HEIGHT LIMRATW61
LARGE JMRUR
STAMM igrAWCN NAMG
cenxmHls 7ONCNA
/\ MTWORW4 V.EIVM
�J Prrimlawu 9355031A
TB.g1433I6 CAMASES
XILSMA CMGESTIIM
MEDIAN s1IRU0.
AMISS BmAMrAl lump
LLOSUS
0 6SCCAL ranWAMACann
PLUNDAW GANDERS
RAPNIGLEMS INIXCA
GROINIOCDPMI SHRUBS
S(NOL. E0'ANY . NAMF
LANGANA MDNOn3Mvs
MYOM%UNI VACINCUM
ACAOA REOCIIIN3 TOW GOY'
IYBPIDGUTOENIA MAC
NCH
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GANG
NTRMRYSUCELE
DSMI
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SOVGAINVINSA
PURPLE SP,TAN.T
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MMMOH NAM,
Nang ituiLINO LAMA
R5MHU MYOPORUM
LOW NOT ACACIA
ALL OREUN000JGS TOR I GA. SZE AE®D 13 TO
BUILDING —
SITE 'H' _�—
BOJINHAIZY
r r�
=WMmwNaCIRNRw...r titan
H.6
TOP 85
FF70
H.5
OP83
FF68
el. .tly.eM.M.I 53688 tGnAm.
r" H.3
1 TOP77 ,
FF80
EENING RESUIREMENTS
(12) 36" BOX TREES (PLANTED WITHIN 12 MONTHS
OF AMENDED DATE).
(1) 48" BOX TREE AT
(1) ADDITIONA
ONT EL
OR EAR ELEVATION &
BOX TREE ADJACENT TO THE
ION (PIkANTED At CONSTRUCTION
OF s " RESPECJPOE MAUSOLk
I
MWIUM 9-&W5
c rrn.)
LARGE 51fU35
I1I.)
SEE DEVELOPMENT AGREEMENT
SECTION 4.6
E4511NG TREE MA55
Magi curative Awn pins_Rldmml.
1
0
SEE DEVELOPMENT AG
SECTION 3,1, 3.2 S 4.8
MINIMUM CONTAINER SIZES
• 36' SOX
o 24" SOX
c15 GALLON
9 GALLON
• I GALLON
TURF AREAS WILL BE SODDED
OR SEEDED
or
EXHIBIT D
4
a
s
RO
CHOCKED
GOMM
¢M[
1I6r T. Ap
YC NO
06112
GHENT
2.2
7
LIEGES
• •
Exhibit F
Building Site E & H Diagram dated July 10, 1995, as amended
and dated on July 27, 2007 (Reference point: Lot 7)
• . �
R
390-O" MIN.
TO REAR OF FAMILY
MAUSOLEUM
'I` HOMEOWNER —.-
IOO'-0" L LOTS
TO ACTIVITYJIB
TOP 419' (SLOPE)
TO REAR F
L
s.
_r 1
'2
45
410
EXISTING GRADE r
405
1-
SHRUB 4 TREE SCREENING'
FINISH FLOOR 400
•r
_Tii
370
-
r �
360 —�
/7..?
L,
360
355
`EXISTING
EsLDG
ESTATE
, AREA S BLDG. SITE 't"
ROAD SITE "1-11 /GARDENS
GROUND BURIAL / 7
FAMILY MAUSOLEUM TERRACED INTO (FLAT MARKERS ONLY)
BLDG. HT. SIZE 4 2:1 SLOPE
LOCATION
WILL VARY: MiliMital
ME -PING SRE "H" ENVELOPE o Ite r .
1-EIGHT, WIDTH 4 LENGTH
PER DEVELOPMENT AGREEMENT
SECTION 3.2(2)(a)
Legend
misting Grade — — — — — —
Proposed
Grade
Property Line ----------
ECevation Line 400
EXHIBIT
F
a
1
8
2
fig
SIB
ORWHI
DMA
06.112
SHEET
2.3
7 SHEETS
TMm,...plm.mad ibpaelleallarta dad ..calro.,m..Eh-Ss ..taiahay Inca .ep..,and publcalan, . Esrey and.,.'act ...apsiduakm. pubicatza.aa
ad Pewit Ma tapma.
Ma
pima evidans• Ha seaplanes die ivaldlens
Exhibit J
Computer Visual Simulations dated July 10, 2007
Exhibit J - View Simulation Location "A"
Pacific View Exhibit J
Memorial Park View Simulation Location "B"
Exhibit J - View Simulation Location Plan
Pacific View Memorial Park
•
AND WHEN RECORDED RETURN TO:
Pacific View Memorial Park
3500 Pacific View Drive
Newport Beach, CA 92663
cc Attention: Steve Schacht
w
In 14-1U.
La:
tCs
0 W
at
ow
ccus
U 7
LiJ
a �1
U
w
w
RECORDING REQUESTED BY Recorded in the County of Orange, California
Gary L Granville, Clerk/Recorder
III(llllil 1iNo Fee
19950456320 3:55pm 10/13/95
005 050636 14 32 MB12
Al2 4 7.00 9.00 0.00 0.00 0.00 0.00
COVENANT AND AGREEMENT
This Covenant and Agreement ("Agreement") is made and entered
into by and between Pierce Brothers, a California corporation doing
business as Pacific View Memorial Park ("Owner") on the one hand
and the City of Newport Beach ("City") on the other hand this 28th
day of August, 1995.
A. Owner is the owner of property described and depicted on
Exhibit A (which is identical to the Technical Site Plan
approved by the City Council on July 10, 1995) hereto,
together with the improvements located thereon ("Pacific View
Memorial Park").
B. City has approved an updated master plan for Pacific View
Memorial Park through the approval of Mitigated Negative
Declaration (the "Negative Declaration"), General Plan
Amendment No. 94-1(F) ("General Plan Amendment"), and Use
Permit No. 3518 ("UP"), Site Plan Review No. 69 and the
Development Agreement dated July 10, 1995 between Owner and
the City ("Development Agreement") (collectively, the
"Approvals")..
C. In connection with the Approvals, Owner has agreed to provide
and maintain a permanent landscaped buffer area within the
area described on Exhibit A within Pacific View Memorial Park
(the "Buffer Area"), and to record this covenant and agreement
to ensure that the Buffer Area is maintained in perpetuity.
AGREEMENT
Now therefore in consideration of the mutual benefits to be
derived from the City's Approvals, and other good and valuable
consideration, the receipt and adequacy of which is hereby •
acknowledged, the parties hereby'agree as follows:
1. Buffer Area. Owner shall improve and maintain the area
described in Exhibit A as a landscaped buffer area (the
"Buffer Area") in perpetuity. No structures, public access,
roads, walkways, walls (other than retaining walls and
existing underground utilities), ground interments or other
form of burial, preservation of remains, plaques, memorials or
monuments of any kind shall be permitted within the Buffer
Area.
EXHIBIT
• •
2. Encroachments Into Buffer Area. Owner shall have the right to
encroach into the Buffer Area, and to remove and/or disturb
Buffer Area landscaping and irrigation, subject to the
following:
a. The encroachment, disturbance, or removal
shall only be to the minimum extent reasonably
necessary to accommodate slope maintenance,
slope repair or construction within Building
Sites E and G (as defined by the Development
Agreement); and
b. Owner shall restore the Buffer Area, including
landscaping and irrigation, to its condition
prior to the encroachment, disturbance or
removal as soon as possible after the
encroachment is no longer necessary to
accommodate slope maintenance, slope repair or
construction activities.
3. Maintenance of Buffer Area Landscaping. Owner shall maintain
the landscaping and irrigation system within the Buffer Area
in accordance with the Final Landscape Plan approved by the
City for the Buffer Area (as defined by the Development
Agreement).
4 Conditions to Continued Effectiveness. In the event that any
of the Approvals are overturned or ruled invalid by a final
non -appealable judgment of court of competent jurisdiction as
the result of litigation initiated by any third party then
this Covenant and all of Owner's obligations hereunder shall
automatically be deemed null, void, and of no effect
whatsoever. City shall execute and deliver to Owner a release
of this Covenant in recordable form in the event third party
litigation results in a final non -appealable judgment or order
invalidating any of the approvals. Except as provided in this
Section, this Covenant shall remain'in full force and effect
in perpetuity.
Successors and Assigns. This Agreement is a covenant and
agreement running with Pacific View Memorial Park and shall be
binding upon Owner and its successors and assigns.
IN WITNESS WHEREOF, this Covenant and Agreement has been
executed the day and year first above written.
CITY OF NEWPORT BEACH
Jahn W. Hedges
By:
Mayor
PIERCE BROTHERS, a
California corporation doing business
as Pacific View Memorial Park
Stephen L. Schacht
By:
General Manager
Its: rf/�
de\ag\PVCovAgt.doc
State of California
County of Orange
On August 28, 1995 before
me, Irene Butler, Notary Public,
personally appeared John W. Hedges, Mayor and Stephen L. Schacht, G
Pacific View Memorial Park
personally known to me - OR -
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-Iciefeltefthey
executed the same in his/her/their authorized
capacity(ies), and that by-hisThs#their
signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Sn,_ gat
CAPACITY CLAIMED BY SIGNER
Individual
cm Corporate Officer
Limited Partner
General Partner
Attorney -in -Fact
Trustee(s)
__ Guardian/Conservator
Mayor Other: John W. Hedges
Signer Is Representing:
Mayor of City of Newport
»iemonalVi'arr'k
Beach
DESCRIPTION OF ATTACHED DOCUMENT
Covenant Agreement
btw City/Pacific View Memorial
Park
Title or Type of Document
Number of Pages
August 28, 1995
Date of Document
N/A
Signer(s) Other Than Named Above
1113irt manacour rat
DIP # 95=0392537
Recording Requested By and
When Recorded Return to:
City Clerk
City of Newport Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92659-1768
O8—SEP-1995 11 37 AM
Recorded in Official Records
of Orame County; California
Gary L. Granville, Clerk -Recorder
Page 1 of 55 Fees: $ 0.00
Tax, t 0,(
BSHZOBD4.WP .04
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF NEWPORT BEACH
AND
PACIFIC VIEW MEMORIAL PARK
Approved July 10 , 1995
Ordinance No. 95_ 26
1
• •
DEVELOPMENT AGREEMENT
t/
THIS DEVELOPMENT AGREEMENT (the "Agreement") is enterer
between the City of Newport Beach (the "City"), and Pierce
Brothers, a California corporation doing business as Pacific
View Memorial Park ("Pacific View") with respect to the
updated master plan for development of Pacific View Memorial
Park.
1. RECITALS.
1.1
This Agreement relates to the following:
Purpose of Agreement. This Agreement is
intended to:
(a) Enable Pacific View to update its master
plan for the buildout of the Property by
obtaining the City's review and approval
of updated design parameters for new or
additional facilities at Pacific View
Memorial Park consistent with the
currently anticipated interment and
funeral service needs of community
members, which have changed over the
years.
(b) Minimize the impact of
adjoining residents by
strict, binding limits
height and location of
development as well as
with numerous conditions on the timing of
construction, the design of structures,
and landscaping of the property.
(c) Benefit the parties, nearby residents and
the general public by serving as the
primary legal means of vesting Pacific
View's right to develop the property
ensuring continued compliance with
conditions on development that are
intended to mitigate the impact of
construction on nearby residents and doing
so with a level of certainty that will
minimize the potential for disputes in the
future.
the buildout on
establishing
on the amount,
permitted
ensure compliance
1.2 Authorization. This Agreement is authorized
by, and is consistent with, the provisions of
Section 65864 et seq. of the Government Code of
the State of California, and Chapter 15.45 of
the Newport Beach Municipal Code.
1
1.3 Interest of Pacific View. Pacific View is the
owner of approximately forty five (45) acres of
real property located in the City and more
particularly described in Exhibit "A" and
depicted in Exhibit "B" (the "Property").
1.4 Development of the Property. This Agreement
grants Pacific View the statutory and
contractual vested right to develop the
Property during the Term of this Agreement
consistent with the Pacific View Memorial
Park's technical site plan (the "Technical Site
Plan) attached as Exhibit "C", subject to
compliance with the conditions and mitigation
measures set forth in Section 3 with respect to
Mitigated Negative Declaration (the "Negative
Declaration"), General Plan Amendment No. 94-
1(F) ("General Plan Amendment"), and Use Permit
No. 3518 ("UP"), Site Plan Review (#69)
(collectively, the "Discretionary Approvals"),
as well as the additional conditions relating
to public benefit set forth in Section 4 and
other portions of this Agreement.
1.5 Planning Commission/City Council Hearings. The
Planning Commission, after giving appropriate
notice, held public hearings to consider the
Discretionary Approvals on February 23 and
March 9. The hearings were continued to April
20 to enable the circulation of an additional
Negative Declaration and supplemental public
notice regarding potential changes to Pacific
View's Technical Site Plan requested by the
Planning Commission, as well as notice
regarding the potential Development Agreement
which the Commission desired to consider. On
April 20, after conducting further hearings
regarding the Discretionary Approvals and the
draft Development Agreement, and after further
conditioning and modifying the Technical Site
Plan, the Discretionary Approvals and the
Development Agreement, the Planning Commission
directed the preparation of approval
resolutions, findings, conditions, and
documents in accordance with the revised
Technical Site Plan prepared by Pacific View to
be prepared for its May 4 meeting. On May 4,
after conducting further hearings, and after
further conditioning and modifying the
Technical Site Plan, the Discretionary
Approvals and the Development Agreement, the
Planning Commission voted to recommend approval
of the same. The City Council conducted public
hearings on the Technical Site Plan,
Discretionary Approvals and this Agreement on
2
• •
June 12 and 26, 1995. The City Council
approved this Agreement on July 10, 1995.
1.6 Consistency. This Agreement is consistent with
the various elements of the Newport Beach
General Plan (as amended by the General Plan
Amendment), and other applicable ordinances,
plans, and policies of the City. This
Agreement is also consistent with the purpose
and intent of state and local laws authorizing
development agreements in that it represents
comprehensive planning, provides certainty in
the approval of subsequent construction subject
to compliance with conditions, reduces the
economic costs of development by providing
assurance to Pacific View that it may use and
develop the Property in accordance with the
Discretionary Approvals subject to compliance
with the terms and conditions hereof, and
provides assurance to adjoining property owners
that restrictions and conditions designed to
mitigate the impact of development, such as
restrictions on the height, location and number
of building envelopes will remain in full force
during the term of this Agreement or, in the
case of the prohibition against interments in,
and the landscaping and maintenance of, the
buffer zone, survive the expiration or
termination of this Agreement.
1.7 Police Power. The City Council has determined
that this Agreement is in the best interests of
the health, safety and general welfare of the
City, its residents and the public, was entered
into pursuant to, and represents a valid
exercise of, the City's police power, and has
been approved in accordance with the provisions
of state and local law that establish
procedures for the approval of development
agreements.
1.8 City Ordinance. On July 10, 1995, the City
Council adopted Ordinance No. 95-26 approving
this Agreement and authorizing the City to
enter into this Agreement. The Adopting
Ordinance will become effective on August 9,
1995.
2. DEFINITIONS.
2.1 The "Adopting Ordinance" refers to City
Ordinance No. 95-26, adopted on July 10, 1995
by the City Council, which approved and
authorized the City to enter into this
Agreement.
3
2.2 "Agreement" refers to this Development
Agreement between the City and Pacific View.
2.3 "Periodic Review" refers to the review of
Pacific View's good faith compliance with this
Agreement and conditions on development as set
forth in Section 6.
2.4 The "Approval Date" means the date on which the
City Council voted to adopt the Adopting
Ordinance.
2.5 All forms of use of the verb "assign" and the
nouns "assignment" and "assignee" shall include
all contexts of hypothecations, sales,
conveyances, transfers, leases, and
assignments.
2.6 "CEOA" and the "CEOA Guidelines" refers to the
California Environmental Quality Act and the
CEQA Guidelines promulgated by the Secretary of
Resources of the State of California, including
any amendments adopted subsequent to the
Effective Date.
2.7 "City Council" refers to the City Council of
the City.
2.8 "Cure Period" refers to the period of time
during which Default may be cured pursuant to
Section 9.1.
2.9 A "day" or "days" refers to a calendar day,
unless expressly stated to be a business day.
2.10 A "Default" refers to any material default,
breach, or violation of the provisions of this
Agreement. A "City Default" refers to a
Default by the City, while a "Pacific View
Default" refers to a default by Pacific View.
2.11 "Discretionary Approvals" shall collectively
mean the Negative Declaration, General Plan
Amendment, Use Permit, and Site Plan Review.
2.12 The "Effective Date" refers to the effective
date of the Adopting ordinance and is the
effective date of this Agreement.
2.13 An "Estoppel Certificate" refers to the
document certifying the status of this
Agreement required by Section 6.5 in the form
of Exhibit "G".
4
• •
2.14 An "Exhibit" refers to an exhibit to this
Agreement. All Exhibits are incorporated as a
substantive part of this Agreement. The
Exhibits to this Agreement are:
Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Exhibit E:
Exhibit F:
Exhibit G:
Exhibit H:
Exhibit I:
Legal Description of the
Property Map
Map of Property
The Technical Site Plan Dated
July 10, 1995.
Preliminary Landscape Plan Dated
July 10, 1995.
Building Site G Section Diagrams
Dated July 10, 1995. (Reference
points: Lots 19, 21, 23 & 28)
Building Site E & H Section
Diagram Dated July 10, 1995.
(Reference point: Lot 7)
Estoppel Certificate
Restrictive Covenant
Garden of Valor Improvement
Plans Dated July 10, 1995.
2.15 "Existing General Regulations" means those
General Regulations approved by the City on or
before the Approval Date (irrespective of their
effective date) and not rescinded or superseded
by City action taken on or before the Approval
Date.
2.16 "Future General Regulations" means those
General Regulations adopted by the City after
the Approval Date.
2.17 "General Regulations" means those ordinances,
rules, regulations, policies, and guidelines of
the City, which are generally applicable to the
use of land and/or construction within the City
and include, Uniform Building Codes and water
and sewer connection and fee ordinances.
2.18 "General Plan" refers to the City's General
Plan (as amended by the General Plan
Amendment), plus all amendments to the General
Plan adopted by the City on or before the
Approval Date and effective prior to the
Effective Date.
5
2.19 "Includes" and all contexts and forms of the
words "includes" and "including" shall be
interpreted to also state "but not limited to."
2.20 "Mortgagee" refers to the holder of a
beneficial interest under any mortgage, deed of
trust, sale -leaseback agreement, or other
transaction whereby the property is used as
security for a loan.
2.21 "Notice" refers to any written notice or
demand between the parties required or
permitted by this Agreement.
2.22 The "Parties" refers to the City and Pacific
View and "Party" refers to either of the
Parties.
2.23 "Planning Commission" refers to the Planning
Commission of the City.
2.24 "Project Specific Approvals" includes, but is
not limited to all specific permits, approvals,
subdivisions maps, authorizations and licenses
which are required by the Existing General
Regulations and which may be requested by
Pacific View in order to enable Pacific View to
alter, improve, develop, and utilize the
Property in accordance with the Technical Site
Plan and the Discretionary Approvals and the
terms and conditions of this Agreement.
3. UNDERLYING DISCRETIONARY APPROVALS. The City Council's
approval of the Discretionary Approvals and this
Agreement is subject to compliance with the numerous
conditions and mitigation measures contained in the
Discretionary Approvals which are designed to mitigate
(to less -than -significant -levels) or eliminate
potentially significant adverse effects of the complete
development in accordance with the Technical Site Plan,
and which ensure the health, safety, and welfare of
nearby residents as well as Pacific View's patrons,
visitors and employees. The conditions and mitigation
measures imposed in conjunction with the discretionary
approvals are described in Sections 3.1 through and
including 3.3.
3.1 Negative Declaration Mitigation Measures
1. Buffer Area Requirements.
a. Provision of Buffer Area. A landscaped
buffer area (the "Buffer Area") shall be
provided as depicted on Exhibit C and
Exhibit D along the eastern property line
6
adjacent to residential properties. No
structures, public roads, walkways, walls
(other than retaining walls and existing
underground utilities), ground internments
or other form of burial, preservation of
remains, plaques, memorials or monuments
of any kind shall be permitted within the
Buffer Area.
b. Covenant and Agreement. Prior to the
issuance of any building or grading permit
for any development permitted by this
Agreement (except any permit required to
complete the improvements required by
Section 4.4) Pacific View shall execute
and record the covenant attached as
Exhibit H, which ensures that the Buffer
Area required by this Agreement shall be
maintained in perpetuity subject to
Pacific View's right to encroach into the
Buffer Area, and to remove and/or disturb
Buffer Area landscaping and irrigation.
Pacific View's right to encroach into, or
remove and/or disturb a portion of, the
Buffer Area is subject to the following:
1. The encroachment, disturbance,
or removal shall only be to the
extent reasonably necessary to
accommodate construction within
Building Sites E and G; and
2. Pacific View is required to
restore the Buffer Area, including
landscaping and irrigation, to its
condition prior to the encroachment,
disturbance or removal as soon as
possible after the encroachment is no
longer necessary to accommodate
construction activities.
Pacific View shall have the right to enter
onto the Buffer Area as necessary or
appropriate to repair or maintain the
integrity of any slope.
c. Buffer Area Landscaping/Irrigation System.
The Buffer Area shall be landscaped and
improved with an irrigation system. Except
for slope areas, the Buffer Area shall be
provided with a below ground permanent
irrigation system. Slope areas shall be
improved with an above -ground irrigation
system consisting of U.V. resistant PVC
piping. The landscaping shall be
installed in accordance with a final
landscape plan prepared by a licensed
landscape architect which has been
approved by the Planning Director and
which fully complies with the preliminary
landscape plan attached as Exhibit D (the
"Final Landscape Plan"). The Final
Landscape Plan submitted by Pacific View
shall depict location of planting, the
minimum number of planting required, and
the type and size of plantings such that,
in comparison with the Preliminary
Landscape Plan, there will be the same
screening of Community Mausolea and
Building Sites E, D, F, G and H from the
perspective of ground floor views from
existing residences adjacent to the
eastern property line consistent with the
430 foot mean sea level elevation
limitation in the "Height Limitation Area"
designated on the Technical Site Plan
(Exhibit C).
d. Installation of Landscaping and
Irrictation. The installation of all
required Buffer Area landscaping and
related irrigation shall be initiated as
described by Section 4.6 of this
Agreement, but prior to issuance of
building permits for the construction of
the remaining phase of Sunset Court in
Building Site G. Except as provided in
Section 4.6 of this Agreement, the
remainder of landscaping and related
irrigation shall be installed during the
individual Community Mausolea projects.
All landscaping within the "Height
Limitation Area" designated on Exhibit C
of this Agreement shall be maintained by
Pacific View at or below 430 feet
elevation above mean sea level in such a
way so as to preserve night light, water
and mountain views from existing
residences.
e. Slopes.
(1) Slopes within the Buffer Area behind
Building Site G shall conform to the
sections depicted in Exhibit E to
this Agreement.
• •
(2) Slopes within the Buffer Area behind
Building Site E adjacent to Lots 6,
7, and 8 shall conform to the
sections depicted in Exhibit F to
this Agreement.
(3) Slopes behind the new Community
Mausolea in Building Site H shall
conform to the sections depicted in
Exhibit F to this Development
Agreement.
2. Height Limit. All structures shall comply with
the 28/32-foot height limitation measured from
the elevations set forth in Exhibit C of this
Agreement. In addition, no structure or
landscaping shall exceed 430 feet elevation
mean sea level in the "Height Limitation Area"
designated on Exhibit C of the Development
Agreement.
3. Temporary Screening. All construction sites
shall be screened from view from adjacent
residential areas for the duration of
construction activities to the extent
reasonably feasible. Prior to issuance of any
grading or building permit the Planning
Department shall verify that appropriate
screening requirements have been provided on
the construction plans.
4. Mausoleum Design. All roofs, eaves and facias
of new garden crypts and community mausolea
shall be constructed of material, color,
texture, thickness and pitch to blend with, and
complement, the architectural style of the
original structures within the park (e.g.,
Lagunita and Palm Courts). Blank walls of
Community Mausolea in Building Sites E, G, and
H shall be screened in accordance with the
Final Landscape Plan.
5. Maintenance Of Developed/To Be Developed Areas.
All landscaping currently installed, or to be
installed, on the property shall be irrigated
and maintained.
6. Maintenance of undeveloped Areas. The
undeveloped areas of the Property shall be
maintained free and clear of trash and debris.
Grass and weeds shall be mowed no less than
semi-annually.
7. Reclaimed Water Connection. All existing and
proposed irrigation systems shall be connected
9
to the City's reclaimed water system as soon as
it is practical (i.e., when a reclaimed water
connection is available at the property line)
and economically feasible.
8 Light and Glare. The Building Director shall
not issue any permit authorizing the
installation of any lighting system unless the
system is designed, directed and maintained to
conceal the light source from, and to minimize
light spillage and glare to, the adjacent
residential uses to the extent reasonably
feasible. The Building Director's determination
of feasibility shall be based upon plans
prepared and signed by a licensed architect or
electrical engineer accompanied by a report
explaining why any remaining glare or light
spillage cannot feasibly be eliminated or
further reduced.
9. Archaeological and Paleontological Resources.
Prior to issuance of a grading permit, the
applicant shall demonstrate to the Planning
Department that the project will comply with
Council Policies K-5 and K-6 regarding
archaeological and paleontological resource
investigation, surveillance and recovery.
10. Drilling and Engraving. All drilling and
engraving of crypt markers shall be done in
enclosed areas or at a sufficient distance from
residential properties so as to cause no
discernible increase (any increase in noise
levels of 3 DBA or more shall be considered
discernible) in ambient noise levels at any
residential property line.
3.2 Use Permit No. 3518 Conditions.
1. Exhibit C depicts the approximate size,
configuration and location of building
envelopes for future Community Mausolea to be
constructed within the Property. Community
Mausoleum shall mean any mausoleum building or
crypt wall structure containing interment
spaces capable of accommodating casketed
remains, and which are available to the public
at large. Future Community Mausolea shall be
permitted only in Building Sites A, C, E, G & H
and within the Building Envelopes specified on
the Technical Site Plan (Exhibit C).
2. The plan also depicts Building Sites within
which Family Mausolea or Columbaria may be
developed. "Family Mausolea" shall mean a
10
mausoleum building or above ground crypt
containing casketed remains which are owned and
privately used by any individual or family.
Columbaria shall mean any building or structure
used or intended to be used for the interment
of cremated human remains. Pacific View's
ability to construct Family Mausolea or
Columbaria on the Property shall be limited as
follows:
a. Family Mausolea and Columbaria shall not
exceed 12 feet in depth, 22 feet in width
and 15 feet in height; provided, however,
in Building Site G, Family Mausolea and
Columbaria shall not exceed 14 feet in
height.
b. Family Mausolea and Columbaria shall be
permitted in Building Site D.
c. Family Mausolea and Columbaria shall be
permitted in Building Sites F and G
provided they are contiguous and adjacent
to a Community Mausoleum and are located
within the westerly projections of the
Community Mausoleum (as opposed to crypt
walls) building envelopes depicted on the
Technical Site Plan (Exhibit C).
d. The Columbaria and related construction,
including flag poles and flat work
depicted on Exhibit I to this Agreement
shall be permitted in the Garden of Valor
subject to compliance with, and the
payment of the penalty provided in, the
Uniform Building Code. The improvements
described in Exhibit I are the only
improvements permitted in the Garden of
Valor. Pacific View shall plant box trees
to provide screening of Garden of Valor
improvements from residences adjacent to
the eastern and southern boundaries of the
property.
e. Family Mausolea and Columbaria are
prohibited on the Property except in those
areas expressly permitted pursuant to this
Section (3.2 a - c).
3. The General Plan Amendment and Technical Site
Plan provides for a maximum of 30,000 square
feet of administrative offices and support
facilities, 121,680 square feet of Community
Mausolea, and 12,000 square feet of Family
Mausolea. Square footage for Columbaria, if
11
any, shall be deducted from Community or Family
Mausolea allotments at Pacific View's option.
The allotments described in this subsection
include development on -site as of the date of
this Agreement. As described in Section 4.1,
overhangs, eaves, walkways, and similar
architectural features and improvements shall
not be counted against permitted square
footage.
4. No roads or driveways shall be located closer
to adjoining residential areas than depicted on
the Technical Site Plan (Exhibit C). The
existing extension of Pacific View Drive
adjacent to the southerly side of Area 12
(contiguous and adjacent to the south side of
Building Site F) shall be removed prior to the
commencement of construction in Building Site
G.
5. Except as provided in Section 4.8, the
operation of all construction and maintenance
equipment shall be in conformance with the
provisions of Section 10.28.040 of the Newport
Beach Municipal Code.
6. All improvements shall be constructed in
accordance with all applicable city ordinances
relating to grading and building code
requirements, including any such requirements of
the Public Works Department.
7. Prior to the issuance of any grading or
building permits, Pacific View shall submit a
hydraulic study for review and approval by the
Public Works Director. Any modifications or
extensions to the existing storm drain system
shown to be required by the study shall be the
responsibility of, and constructed by, Pacific
View. Drainage facilities required of Pacific
View must be approved by the Public Works
Department and must .be designed so as to not
cause flooding of, or drainage of water onto,
the adjacent City Reservoir Site.
8. The temporary building currently used as a sales
office shall be allowed for a period of two (2)
years from the Effective Date, unless otherwise
extended by the Modifications Committee. At
such time as the applicant's use of the
temporary building ceases, the building shall be
removed from the site.
12
9. Prior to the issuance of building permits for
any Community Mausoleum, Family Mausoleum,
Family Mausolea, or Columbaria, the location of
such structures shall be reviewed with the
Planning Director or his/her designee, to ensure
compliance with the approved plans.
10. Minor Adiustments. Given the extended period of
years over which the Property will be developed,
it is understood that minor adjustments in the
location or configuration of the Community
Mausoleum, Family Mausolea or Columbaria may
occur, and that other minor adjustments (e.g. to
accommodate slope engineering or the engineering
of building pads) may be necessary to address
site considerations. Notwithstanding any other
provision of the Discretionary Approvals or this
Agreement, such minor adjustments shall be
permitted with the approval of the Planning
Director provided that they are substantially
consistent with the building envelopes, and at
or below the building height limits, shown on
the Technical Site Plan (Exhibit C).
3.3 Site Plan Review Conditions.
That the proposed development shall be constructed in
substantial accordance with the pad elevations
specified in the Technical Site Plan (Exhibit C).
4. PUBLIC BENEFITS CONDITIONS. In addition to the conditions
and mitigations in Section 3 of this Agreement, Pacific
View has agreed to the following conditions and
restrictions contained in this Section (4) in exchange for
the vested rights conferred by this Agreement. Pacific
View's agreement to implement and abide by the additional
conditions specified in this Section (4) during the Term of
this Agreement will confer substantial public benefits.
Specifically, Pacific's View's agreement to develop the
Property in accordance with the following additional
conditions will provide: (a) long-term certainty regarding
Pacific View's development plans; (b) design controls over
the cemetery which may not be otherwise available under
Existing General Regulations and which are anticipated to
result in the substantial screening of mausolea from the
ground floor views of residences adjacent to the eastern
and southern Property lines; (c) long-term development
phasing which will reduce construction disturbances to
nearby residences; (d) increased screening of, and roof
treatment to, past development to improve its compatibility
with nearby residences; (e) commitments with respect to
improvement and maintenance of certain developed and
undeveloped areas; and (f) release of potential monetary
claims against the City of Newport Beach related to the
13
1988 General Plan Update (as set forth in Section 10 below)
and subsequent acts or omissions of the City and its
officers, employees and representatives prior to the
Effective Date. To the extent of any inconsistency between
the conditions set forth in this Section (4) and the
conditions and mitigations contained in the Discretionary
Approvals (as specified in Section (3)) the conditions
specified in this Section (4) shall control.
1. Building Bulk. New Community Mausolea shall be
constructed in compliance with the envelopes
depicted in the Technical Site Plan (Exhibit C).
The building envelopes do not depict the number
or design of individual structures. In
addition, the envelopes do not depict overhangs,
eaves, walkways, and similar architectural
features and improvements, which shall be
constructed to screen Community Mausolea and are
permitted to extend beyond the building
envelopes shown in the Technical Site Plan
(Exhibit C), provided, however eaves shall not
exceed a depth of eight (8) feet and eaves on
gable ends shall not exceed a depth of four (4)
feet.
2. Building Height.
(a) Roof elevations of new Community Mausolea
in Building Site G shall not exceed the
heights indicated on Exhibit C.
(b) Pad elevations of new Community Mausolea in
Building Site G shall comply with the pad
elevations indicated on Exhibits C and E.
(c) Roof elevations of new Community Mausolea
Building Site E shall not exceed the
heights indicated on Exhibits C and F.
(d) Pad elevations of new Community Mausolea in
Building Site E shall comply with the pad
elevations indicated on Exhibits C and F.
(e) Roof elevations of new Community Mausolea
in Building Site H shall not exceed the
heights indicated on Exhibits C and F.
(f) Pad elevations of new Community Mausolea in
Building Site H shall comply with the pad
elevations indicated on Exhibits C and F.
3. Architectural Character. The architectural
character, roof -treatment and finishes of new
Community Mausolea shall be generally consistent
14
• •
with the architectural character, roof treatment
and finishes of the existing Lagunita and Palm
Courts Community Mausoleum.
4. Increased Screening of Sunset Court. Within
sixty days after the expiration of the Statute
of Limitations for any challenge to this
Agreement or the Discretionary Approvals, and
assuming no legal challenge has been filed,
Pacific View shall commence, and thereafter
diligently pursue to completion, the following
landscaping and roof treatment for the existing
Sunset Court Community Mausolea:
a. Installation of thirty (30) fifteen -gallon
shrubs to be added to the existing slopes
surrounding the Sunset Court Community
Mausoleum;
b. Ten (10) thirty-six inch box size trees
shall be planted in the turf courtyard of
the Sunset Court Addition (the trees
selected shall be of a species not expected
to exceed the 430 foot mean sea level
height limitation restriction); and
c. The Sunset Court Addition roof will be
enhanced with colored ornamental rock which
complements the color of the structure.
5. Phasing. Pacific View may develop the Community
Mausolea in Building Sites E, G, and H in one or
more phases. For the purposes of this Agreement
a "phase" shall mean the construction of one or
more Community Mausolea structure(s) within one
or more of the Building Envelopes shown on the
Technical Site Plan (Exhibit C).
The first phase shall include the completion of
Sunset Court within Building Site G (but may, in
Pacific View's discretion, also include one or
more additional Community Mausolea in Building
Site G).
A minimum period of thirty (30) months shall be
required to have elapsed between the completion
of construction of any phase and the initiation
of construction of any subsequent phase.
Construction of each phase shall be completed
within nine months of the commencement of
construction.
Subject to the requirement that Pacific View
commence the additional screening of Sunset
Court required by Section 4.4 and issuance of
15
• •
appropriate permits, construction of the first
phase authorized by this Agreement may commence
upon the Effective Date. The phasing
requirements in this Agreement pertain
exclusively to the grading and site preparation
for, and construction of, new Community Mausolea
and do not apply to any Family Mausolea,
Columbaria or other improvement, structure, or
appurtenance of the Property. The additional
screening to Sunset Court required by Section
4.4 shall not be considered a "phase" for
purposes of this Agreement.
6. Buffer Zone Grading and Landscaping. Pacific
View shall commence study and analysis of the
grading and landscaping for the Buffer area and
Building Sites E & G within sixty days after
expiration of the applicable Statute of
Limitations, assuming no legal challenge has
been filed to this Agreement or the
Discretionary Approvals, and thereafter apply
for all necessary permits. Grading for the
Buffer Area and Building Sites E & G shall be
completed within six (6) months after
commencement of construction of the remainder of
the Sunset Court Mausoleum in Building Site G.
Pacific View shall also complete the
installation of landscaping and irrigation
systems in the entire Buffer Area as specified
in the Final Landscape Plan within this six (6)
month period. Pacific View shall be permitted
to subsequently encroach into, remove a portion
of or otherwise disturb Buffer Area landscaping
and irrigation as specified in Section 3.1.1(B).
Within six (6) months of the Effective Date,
Pacific View shall plant twenty-six (26)
fifteen -gallon trees within Area B (as shown on
Exhibit C and D) designated on Exhibit C hereto.
Pacific View shall not commence the construction
of any Community Mausolea in Building Site H
prior to four (4) years after the planting of
such trees; provided, however, that Pacific View
may elect to commence construction sooner than
four (4) years by increasing the box -size of
such trees or replacing such trees with larger
box sizes as follows:
Less than 3 years = 36" box
Less than 2 years = 48" box
Less than 1 year = 60" box
Within six (6) months of the Effective Date of
this Agreement, Pacific View shall also plant
five (5) twenty four inch box trees along the
16
• •
northeasterly boundary of Building Site D as
shown in the Preliminary Landscape Plan.
7. Offsite Landscaping. Provided that the
conditions in this Section 4.7 are met, Pacific
View shall reimburse the Spyglass Hill Homeowner
Association's ("Association") the actual and
reasonable cost of: (a) purchasing and planting
forty (40) fifteen -gallon shrub/trees within the
common homeowner's association landscape area
along the southeast boundary of Building Site E;
and (b) repairing the existing irrigation system
in such area as necessary consistent with the
original operating characteristics of such
irrigation system.
Pacific View's obligation to reimburse the
Association is contingent upon the Association's
submittal of three bids consistent with the
foregoing work description within six (6) months
of the Effective Date of this Agreement. In the
event the Association fails to submit the bids
within the time required, Pacific View shall
have no reimbursement obligation pursuant to
this Section (4.7). Within ten (10) business
days of receiving such bids, Pacific View shall
approve one of the bids provided that all of the
bids are consistent with such work description.
The total cost set forth in the approved bid
shall constitute Pacific View's maximum
reimbursement obligation to Association
regardless of whether Association accepts the
bid approved by Pacific View; but in no event
shall Pacific View be obligated to reimburse
more than Association's actual cost of
conducting such work. In the event that
Association fails to complete the work described
in this Section 4.7 within twelve (12) months of
Pacific View's bid approval, Pacific View shall
have no reimbursement obligation under this
Section 4.7; however, in the event such work is
completed within the time required, Pacific View
shall promptly reimburse Association the amount
provided herein.
8. Mausolea Construction Hours. Notwithstanding
any other provision of the Discretionary
Approvals, this Agreement, or the Existing
General Regulations, Community and Family
Mausolea construction activity shall not
commence before 8:00 a.m. Monday through
Saturday and no construction shall be permitted
on Sundays or national holidays. Construction
activity shall cease before 6:30 p.m. on
weekdays and 6:00 p.m. on Saturday. These
17
restrictions shall not apply to any other aspect
of Pacific View's operations.
9. 430' Covenant. In the event that all of those
property owners who are the beneficiaries of the
430 foot mean sea level covenant of light and
air which burdens a portion of the Property
effectuate a legally enforceable extinguishment
and release of such covenant, or in the event
that all of such property owners effectuate a
legally enforceable modification of such
covenant to permit landscaping to exceed the 430
foot mean sea level elevation in the area
burdened, then Pacific View shall not oppose and
will consent to a modification of this Agreement
initiated by the City for the sole and exclusive
purpose of allowing the landscaping which is
presently restricted to the 430 foot mean sea
level elevation by virtue of this Agreement to
grow to such greaterelevation as permitted by
the covenant modification agreed to by all of
the benefitted property homeowners.
Notwithstanding the foregoing, Pacific View
shall be under no obligation whatsoever to seek
or procure the consent of any property owner to
the extinguishment or modification of the
covenant, or to incur any cost or expense to
obtain any required consent. Further, Pacific
View shall be under no obligation whatsoever to
consent to any modification of this Agreement
consistent with any extinguishment or
modification unless; (a) such extinguishment or
modification (including, but not limited to a
modification of the Development Agreement) does
not seek to impose any additional conditions,
obligations, restrictions, costs and/or expenses
upon Pacific View other than to allow the
landscaping in the burdened area of Pacific View
ownership's to grow to such greater elevation as
permitted by the covenant modification agreed to
by all of the benefitted property owners and
thereafter be maintained at such elevation; and
(b) Pacific View is able to obtain an updated
policy of title insurance or an endorsement to
its existing policy insuring Pacific View's
title consistent with the extinguished or
modified covenant, and consistent with the
modified Development Agreement.
18
10. Ground Burial
(a) Building Site E
Except for the Community Mausoleum and
Crypt Wall, Pacific View is permitted only
below ground interment and the installation
of plaques or memorials at or below grade
in Building Site E. Pacific View shall not
install pillow blocks, benches, memorials
or other above grade objects (exclusive of
landscaping as provided in the Final
Landscape Plan and trash receptacles only
as necessary).
(b) Building Sites (other than Building Site E)
Those portions of Building Sites which do
not consist of building envelopes, or
within which Family Mausolea or Columbaria
are not permitted by this Agreement, or if
permitted, the Family Mausolea or
Columbaria are not constructed, shall be
used only for ground burial provided
Pacific View may install in such areas:
(1) Aesthetically pleasing walls not
exceeding three (3) feet in
height measured from the highest
adjacent finished grade;
(2) Above grade memorials such as
benches and pillow blocks,
provided the memorial does not
exceed three (3) feet in height;
(3) Gardens and Landscaping;
(4) Complementary memorials and
related architectural features
which do not contain human
remains and which do not exceed
eight feet in height (measured
from grade) subject to Building
Code compliance.
c. Ground Burial Outside of Building
Sites
(1) Developed Areas (Areas 1-10)
Those portions of the Property currently
developed with ground burials (Areas 1-10
on the Technical Site Plan - Exhibit C
shall be maintained in a manner consistent
19
with a lawn cemetery to preserve the
existing "park like" environment of the
Property.
(2) Undeveloped Areas (Area 11)
Area 11 as shown on the Technical Site Plan
may be developed in a manner complementary
to the existing improvements in that
portion of Area 1 between San Joaquin Hills
Road and Vista Del Mar Drive and between
Building Sites C and D.
5. VESTED RIGHT TO DEVELOP.
5.1 Compliance with Existing General Regulations.
Pacific View is required to comply with the
Existing General Regulations. City acknowledges
and agrees that the Discretionary Approvals
constitute all of the discretionary
entitlements, approvals and permits required by
the City for Pacific View to complete the full
extent of development envisioned by the
Technical Site Plan and Discretionary Approvals,
and that the conditions and mitigation measures
set forth in Section 3 and 4 constitute all of
the conditions and mitigations to be imposed by
the City in association therewith in the
exercise of its discretionary authority under
the Existing General Regulations.
Subject to Pacific View's compliance with this
Agreement, City shall process and approve
applications for Project Specific Approvals
consistent with the Discretionary Approvals and
this Agreement in a timely manner without the
imposition of additional conditions other than
standard conditions and fees which are: (a) not
in conflict with this Agreement; and (b) which
are routinely imposed or assessed in conjunction
with non -discretionary permits and approvals.
As to those Existing General Regulations which
require the payment of fees, costs, and
expenses, Pacific View shall pay the fee, cost,
or expense required as of the date on which
Pacific View submits the application for Project
Specific Approval.
City acknowledges and agrees that no development
impact fees (including, but not limited to,
traffic impact fees but excluding building
permit fees, plan check fees or other fees for
services) shall be required in connection with
any development authorized by this Agreement or
any use of the property that is not inconsistent
20
with this Agreement. Except as expressly
provided in this Agreement, no dedications or
reservations of the Property shall be required
of Pacific View in conjunction with the
application or issuance of any Project Specific
Approvals. Pacific View shall also comply with
all provisions of the Uniform Building Code,
whether adopted before or after the Approval
Date, which are in effect at the time
applications for Project Specific Approvals are
submitted. Except as provided in this section
(5.1), Pacific View shall not be obligated to
comply with Future General Regulations, except
as expressly required (as opposed to permitted)
by state or federal law.
5.2 Vested Right to Develop. During the Term of
this Agreement, Pacific View shall have a
contractual and statutory vested right to
develop the Property to the full extent
permitted by this Agreement and the
Discretionary Approvals and to receive all
Project Specific Approvals to alter, improve and
develop the Property in accordance therewith.
Subject to the provisions of Sections 3 and 4 of
this Agreement, City shall only take action
which complies and is consistent with this
Agreement unless Pacific View otherwise delivers
prior written consent to the City. Subject to
the limitations on development hereunder,
nothing in this Agreement is intended to limit
the interment activities conducted by Pacific
View. Nothing in this Agreement shall restrict
Pacific View's right to perform ground
interments anywhere within the Property, except
within the Buffer Area, or, unless expressly
restricted by this Agreement, to develop and use
the Property in any manner consistent with the
Existing General Regulations.
5.3 Conflicting Measures. Except as required by
statutory or decisional law, the City shall not
apply or enforce, as to the Property, any
ordinance or initiative (including, any
ordinance adopted pursuant to Health and Safety
Code Section 8115), moratorium, referendum,
resolution, statute, regulation, policy or other
provision of law which in any way delay, limits,
or restricts development of the Property to the
full extent permitted by this Agreement.
5.4 Justifiable Reliance. City acknowledges that in
reasonable and justifiable reliance upon City's
representations and commitments herein (in
addition to City's contractual commitments
21
hereunder and the provisions of the Development
Agreement Act) to permit Pacific View's
completion of the development in accordance with
the Technical Site Plan (Exhibit C) in
accordance with the terms and conditions set
forth in this Agreement, Pacific View: (a) has
invested, and will invest substantial sums of
money and planning effort in developing the
Property in accordance with the Technical Plan
(Exhibit C); and (b) has agreed to change the
land use entitlements for the Property, which
enable the Property to be developed in
accordance with the Technical Site Plan (Exhibit
C) to be developed, but which preclude other and
profitable uses that Pacific View contends would
be permissible in the absence of the contractual
commitments contained in this Agreement.
5.5 Construction Timing. Subject to the provisions
of this Agreement and the Discretionary
Approvals, Pacific View shall have the right to
decide the timing, phasing, and sequencing of
construction and development on the Property in
its sole and absolute discretion. Pacific View
shall be entitled to apply for, and receive
approval of, Project Specific Approvals in a
timely manner by the City. Nothing in this
Agreement shall require Pacific View to complete
any or all of the development authorized by the
Discretionary Approvals and this Agreement
within the Term of this Agreement.
5.6 Existing Mausoleum Complex in Building Site F.
Nothing in the Discretionary Approvals or this
Development Agreement shall effect the right of
Pacific View to maintain, and in the event of
damage or destruction (whether partial or
complete), to repair and/or replace the existing
mausoleum structures and other improvements
located in Building Site F.
6. PERIODIC REVIEW.
6.1 City and Pacific View Responsibilities. Without
limiting the right of the City to set a public
hearing in accordance with Section 9, at least
every twelve (12) months during the Term of this
Agreement, the City shall review Pacific View's
good faith substantial compliance with this
Agreement (the "Periodic Review"). After the
Periodic Review, the City's finding of good
faith compliance by Pacific View shall be
conclusive for the purposes of future Periodic
Reviews or legal action between the Parties.
Either Party may address any requirements of the
22
Agreement during the Periodic Review. However,
fifteen (15) days' written Notice of any
requirement which one Party intends to address
shall be provided to the other Party. If, at
the time of the review, an issue not previously
identified in writing is addressed or is
required to be addressed, then the review shall
be continued at the request of either Party for
a period of no more than 60 days to afford
sufficient time for analysis and preparation of
a response.
6.2 Public Hearing. The Periodic Review shall be
conducted at a public hearing noticed in
accordance with the provisions of Chapter 15.45
of the Newport Beach Municipal Code.
6.3 Information to be Provided to Pacific View. The
City shall mail to Pacific View a copy of the
staff report and related exhibits concerning
compliance with this Agreement a minimum of ten
(10) days before the Periodic Review.
6.4 Mitigation Review.
include a report
Director regarding
with the various
The periodic review shall
prepared by the Planning
Pacific View's compliance
conditions and mitigation
measures contained within the mitigation
monitoring plan adopted in connection with the
Negative Declaration. Pacific View shall be
found in compliance with this Agreement and the
Mitigation Monitoring Plan unless the City
Council determines, based upon substantial
evidence presented at the Periodic Review, that
Pacific View has not complied with one, or more,
of the mitigation measures or the terms or
conditions of this Agreement.
6.5 Estoppel Certificate. Either Party may at any
time deliver written Notice to the other Party
requesting an estoppel certificate (the
"Estoppel Certificate") stating:
(a) The Agreement is in full force and effect
and is a binding obligation of the Parties.
(b) The Agreement has not been amended or
modified either orally or in writing or, if
so amended, identifying the amendments.
(c) The non -requesting party has no knowledge
of any default in the performance of the
requesting party's obligations under the
Agreement or, if a Default does exist, the
nature and amount of any Default.
23
A Party receiving a request for an Estoppel
Certificate shall provide a signed certificate
to the requesting Party within thirty (30) days
after receipt of the request. The Planning
Director may sign Estoppel Certificates on
behalf of the city. An Estoppel Certificate may
be relied on by assignees and Mortgagees. The
Estoppel Certificate shall be substantially in
the same form as Exhibit G.
6.6 Failure to Conduct Periodic Review. The City's
failure to conduct a Periodic Review shall not
constitute or be asserted by the City as Pacific
View's Default, or asserted by Pacific View as a
waiver of a Pacific View Default.
7. GENERAL PROVISIONS.
7.1 Effective Date. This Agreement and the
obligations of the Parties shall be effective as
of the Effective Date. However, this Agreement
shall bind the Parties as of the Approval Date,
subject only to the Adopting Ordinance becoming
effective pursuant to California law and/or the
Newport Beach City Charter.
7.2 Term of Agreement. The term of this Agreement
(the "Term") shall begin on the Effective Date
and continue for twenty (20) years unless
otherwise terminated or modified pursuant to
this Agreement (including, but not limited to,
the extension provisions of Section 11.16
hereof). In addition, the term of this
Agreement shall be automatically extended for an
additional ten (10) year term if, at the
expiration of the initial twenty (20) year term,
Pacific View has not completed all of the
development authorized by this Agreement.
7.3 Assignment. Pacific View has the absolute right
to assign its rights and obligations under this
Agreement as part of an assignment or transfer
of all of the Property.
7.4 Amendment of Agreement. This Agreement may be
amended from time to time by the written mutual
consent of the Parties, or their successors in
interest, but only at a noticed public hearing
and in the manner provided by the Government
Code and this Agreement.
7.5 Enforcement. This Agreement is enforceable by
each of the Parties and their respective
successors and assigns.
24
• •
7.6 Termination. This Agreement shall be deemed
terminated and of no further effect upon the
occurrence of any of the following events:
(a) Expiration of the twenty (20) year term
(including any extension pursuant to
Section 7.2 hereof);
(b) Entry, after all appeals have been
exhausted, of a final judgment or issuance
of a final order by a court of competent
jurisdiction directing the City to set
aside, withdraw, or abrogate the City's
approval of this Agreement, or any of the
Discretionary Approvals, unless otherwise
authorized or permitted by the court, or,
(c) The effective date of a Party's election to
terminate the Agreement as provided in
Section 9.3 of this Agreement; provided
that the validity of the same is upheld by
final and non -appealable judicial review.
7.7 Effect of Termination. In no event shall this
Agreement be construed to limit Pacific View's
right to continue to develop and utilize the
Property, or construed to create any contractual
or statutory vested right (as opposed to common
law vested rights) to continue to develop and
utilize the Property, subsequent to the
termination of this Agreement (whether
voluntary, involuntary, or by operation of this
Agreement) subject to compliance with the
Discretionary Approvals. However, to the extent
Pacific View has completed the development
envisioned by the Discretionary Approvals and
this Agreement in any particular Building Site
designated by the Technical Site Plan (Exhibit
C), the conditions and restrictions of this
Agreement relating to such Building Site shall
survive the termination of this Agreement and
Pacific View shall continue to be obligated to
maintain the Buffer Area pursuant to the
restrictive covenant (Exhibit 3.1.1(B).
8. CONFLICTS OF LAW.
8.1 Conflict with State and Federal Laws and
Regulations. Where state or federal laws or
regulations prevent compliance with one or more
provisions of this Agreement, those provisions
shall be modified, through revision or
suspension, to the extent necessary to comply
with such state or federal laws or regulations
25
• •
and the modified Agreement shall remain in
effect, subject to the following:
(a) the City shall not request modification of
this Agreement pursuant to this provision
unless and until the City Council makes a
finding that such modification is required
(as opposed to permitted) by state and
federal laws or regulations;
(b) the modifications must be limited to those
required (as opposed to permitted) by the
state or federal laws;
(c) the modified Agreement must be consistent
with the state or federal laws or
regulations which required modification or
suspension;
(d) the intended material benefits of this
Agreement must still be received by each of
the Parties after modification;
(e) neither the modification nor any applicable
local, state, or federal laws or
regulations, may render the modified
Agreement impractical to enforce; and
(f) Pacific View consents in writing to the
modification.
Pacific View shall have the right to seek
judicial review of any proposed modification to
ensure compliance with this Section.
9. DEFAULT, REMEDIES AND TERMINATION.
9.1 General Provisions. In the event of a Default,
the Party alleging a Default shall give the
other Party a written Notice of Default. The
Notice of Default shall specify the nature of
the alleged Default, and a reasonable manner and
sufficient period of time (not less than thirty
(30) days) in which the Default must be cured
(the "Cure Period"). During the Cure Period,
the Party charged shall not be considered in
Default for the purposes of termination of the
Agreement or institution of legal proceedings.
If the alleged Default is cured within the Cure
Period, then a Default shall be deemed not to
exist.
9.2 Option to Institute Legal Proceedings or to
Terminate. If an alleged Default is not cured
within the Cure Period, the noticing Party must
26
give the defaulting Party a Notice of intent to
terminate the Agreement. Within thirty (30)
days after giving of the Notice, the City
Council shall hold a public hearing in the
manner set forth in Government Code Sections
65865, 65867, and 65868, as amended, to consider
and review the matter.
9.3 Notice of Termination. After considering the
evidence presented to the City Council, the
Party alleging the Default, at its option, may
give written Notice of termination of the
Agreement to the other Party and the Agreement
shall be terminated immediately upon giving the
Notice. A termination shall be valid only if
good cause exists and substantial evidence was
presented to the City Council to establish the
existence of a Default. The findings of the
City Council as to the existence of a Default
shall have no weight in any legal proceeding
brought to determine the existence of a Default.
The validity of any termination may be
challenged pursuant to Section 11.15, in which
case the court shall render an independent
judgment as to the existence of a Default and
good cause for termination. Termination may
result only from a material Default of a
material provision of this Agreement.
9.4 Waiver. Failure or delay in giving Notice of
Default shall not waive a Party's right to give
future Notice of the same or any other Default.
9.5 Default by Pacific View. Subject to compliance
with Sections 9.1 through 9.3, in the event of a
Pacific View default, City shall have no
obligation to perform any of City's obligations
pursuant to this Agreement (as opposed to the
City's obligations pursuant to Discretionary
Approvals). Upon a Pacific View default, any
resulting delays in City's performance shall
neither be City's default nor constitute grounds
for termination or cancellation of the Agreement
by Pacific View.
9.6 Default by the City. Subject to compliance with
Sections 9.1 through 9.3, in the event of a City
Default, Pacific View, without limiting any of
its other remedies, shall not be obligated to
proceed with this Agreement or complete the
development envisioned thereby, nor to perform
any further obligations under the Agreement.
Upon a City Default, any resulting delays in
Pacific View's performance shall neither be
Pacific View's Default nor constitute grounds
27
for termination or cancellation of the Agreement
by the City.
9.7 Availability of Specific Performance. Both
parties agree and recognize that it will not be
possible to restore the land use entitlements
for the Property to their state prior to this
Agreement's approval, and that it will not be
physically, financially, or practically possible
as a matter of land use planning to restore the
Property to its prior state once the Project is
commenced. For these reasons, it may not be
possible to determine an amount of monetary
damages which would adequately compensate
Pacific View in the event Pacific View is
prevented from completing the development
envisioned by the Technical Site Plan (Exhibit
C) in accordance with the terms and conditions
of this Agreement. Therefore, without limiting
any remedy available to Pacific View because of
a City Default, the parties agree that: (a)
monetary damages would not be an adequate remedy
for Pacific View if Pacific View is prevented
from completing the development envisioned by
the Discretionary Approvals, the Technical Site
Plan (Exhibit C) and in accordance with the
terms and conditions hereof; and (b) that
specific performance and/or injunctive relief
shall be available to Pacific View to enforce
City's obligations hereunder.
Similarly, the City has relied on Pacific View's
obligations pursuant to this Agreement in
granting approval of the Technical Site Plan
(Exhibit C) and Discretionary Approvals. It
will not be possible to determine an amount of
monetary damages which would adequately
compensate the City in the event of a Pacific
View Default. Therefore, without limiting any
remedy available to the City because of a
Pacific View Default, the parties agree that:
(a) monetary damages would not be an adequate
remedy for the City in the event of a Pacific
View Default; and (b) that specific performance
and/or injunctive relief shall be available to
City to enforce Pacific View's obligations
hereunder.
10. GENERAL RELEASE. In consideration of the terms and
provisions of this Development Agreement, City and Pacific
View agree that upon the Effective Date of this Agreement,
Pacific View shall, and hereby does, forever relieve,
release, and discharge City of and from any and all known
or unknown, suspected or unsuspected, contingent or fixed,
and existing or potential claims, complaints, grievances,
28
allegations, demands, liabilities, losses, obligations,
damages, costs, expenses (including, without limitation,
attorneys' fees), lawsuits, actions (in law, equity, or
otherwise), causes of action and disputes (collectively,
"Claims") that arise out of, or are in any way related, to
any act or omission by any City official, employee,
representative or agent at any time prior to the Effective
Date of this Agreement.
Pacific View expressly understands that California Civil
Code Section 1542 ("Section 1542") provides as follows:
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.
Pacific View knowingly, voluntarily, intentionally, and
expressly waives any and all rights and benefits conferred
by Section 1542 or any law of any state or territory of the
United States or any foreign country, principle of common
law, or other law that is similar to Section 1542, and
agree and acknowledge that this waiver is an essential term
of this Agreement, without which the consideration given
herein would not have been given.
Notwithstanding the foregoing general release, nothing in
the Discretionary Approvals, this Agreement, Pacific View's
consent to this Agreement, or Pacific View's acquiescence
in the Discretionary Approvals, shall be construed as any
admission or agreement on the part of Pacific View that, in
the absence of Pacific View's voluntary agreement to this
Development Agreement, the City had any legal authority to
limit the development of mausolea at Pacific View, withhold
building Permits from Pacific View, or otherwise impose
additional regulatory burdens upon Pacific View's
operations and development of the cemetery under the use
permit issued by the County of Orange.
Notwithstanding the foregoing, nothing in this Agreement
shall be construed as any admission or agreement on the
part of the City that any act, or any failure to act, on
the part of the City or any of its officials, officers,
employees, or representatives was contrary to, or
inconsistent with, any provision of law, ordinance,
resolution or policy or would subject the City to any
liability or adverse court ruling.
11. MISCELLANEOUS PROVISIONS.
Notices. All Notices shall be written and
delivered by personal delivery (including
Federal Express and other commercial express
29
delivery services providing acknowledgments or
receipt), registered, certified, or express
mail, or telegram to the addresses set forth
below. Receipt shall be deemed complete as
follows:
(a) For personal delivery, upon actual receipt;
(b) For registered, certified, or express mail,
upon the delivery date or attempted
delivery date as shown on the return
receipt; and
(c) For telegram, upon the transmission of the
telegram.
Notices shall be addressed as follows:
To the City:
With a copy to:
With a copy to:
To Pacific View:
With a copy to:
City Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92660
The City Attorney
The City Manager
Pacific View Memorial Park
3500 Pacific View Drive
Newport Beach, CA 92663
Attention: Mr. Steve
Schacht
Allan J. Abshez, Esq.
Irell & Manella
1880 Avenue of the Stars,
Suite 900
Los Angeles, CA 90067-4276
The addresses to which Notices shall be sent may
be changed by giving Notice of a new address.
11.2 Force Majeure; Extension of Time of Performance.
Neither Party shall be deemed to be in Default
where delays or nonperformance are due to war,
insurrection, strikes, walkouts, riots, floods,
earthquakes, fires, oil spills, casualties, acts
of nature, unavailability of materials,
governmental restrictions imposed or mandated by
governmental entities, or similar bases for
excused performance. If written Notice of such
delay is given to the other Party within thirty
(30) days after such delay begins an extension
of time for performance shall be granted in
writing for the period of the delay, or longer
30
as may be mutually agreed upon. Delays and
extensions associated with litigation shall be
governed by Section 11.16 hereof.
11.3 Severability. If any material part of the
Agreement is found by a court to be invalid,
void, or illegal, the Parties shall modify the
Agreement to implement the original intent of
the Parties. These steps may include the waiver
by either of the Parties of their right under
the unenforceable provision. If, however, the
Agreement objectively cannot be modified to
implement the original intent of the Parties and
the Party substantially benefitted by the
material provision does not waive its rights
under the unenforceable provision, the entire
Agreement shall become void. For purposes of
this Section, and without excluding the possible
materiality of other provisions of this
Agreement, all provisions of Sections 3, 4 and 5
are deemed "material."
11.4 Entire Agreement. This Agreement constitutes
the entire understanding and Agreement of the
Parties regarding the subject matter of this
Agreement. This Agreement supersedes all
negotiations and previous agreements between the
Parties regarding that subject matter.
11.5 Waivers. All waivers of the provisions of this
Agreement must be in writing and signed by the
Party making the waiver.
11.6 Covenant of Good Faith and Fair Dealing.
Neither Party shall do anything which shall have
the effect of harming or injuring the right of
the other Party to receive the benefits of this
Agreement.
11.7 Further Actions and Instruments. Upon the
request of either Party, the other Party shall
promptly execute, with acknowledgment or
affidavit if reasonably required, and file or
record such required instruments and writings
and take any actions as may be reasonably
necessary under the terms of this Agreement or
to evidence or consummate the transactions
contemplated by this Agreement.
11.8 Successors and Assigns. The burdens of this
Agreement shall be binding upon, and the
benefits of the Agreement shall inure to, all
successors -in -interest and assigns of the
Parties; provided, however, that in no event
shall the obligations of Pacific View hereunder
31
be deemed to inure to the benefit of, or bind,
any member of the general public that has
purchased or holds title to any interment space
at the Property. Further, this Agreement is
made exclusively by and between the City and
Pacific View, and notwithstanding any provision
hereof (including, but not limited to, Section
4.7 and references to off -site properties), it
is the intent of the parties that there are no
third party beneficiaries to this Agreement; and
no provision of this Agreement shall confer any
enforcement rights upon any party other than
Pacific View and the City. The parties also
acknowledge and agree that, consistent with
general legal principles, this Agreement does
not effect or alter the legal rights of any
person or entity not a party to the Agreement.
11.9 Construction of Agreement. This Agreement has
been the subject of extensive negotiations
between the parties and therefore no presumption
for or against any party arising out of drafting
all or any part of this Agreement will be
applied in any action relating to, connected
with or involving this Agreement. All language
in all parts of this Agreement shall be
construed as a whole and given its fair meaning.
The captions of the paragraphs and subparagraphs
are for convenience only and shall not be
considered or referred to in resolving questions
of construction. This Agreement shall be
governed by the laws of the State of California.
This Agreement is not intended to impermissibly
contract away the legislative and governmental
functions of the City, and in particular, the
City's police powers or to surrender or abrogate
the city's governmental powers over the
Property.
11.10 Authority to Execute. The person executing this
Agreement on behalf of Pacific View warrants and
represents that he/she has the authority to do
so and the authority to bind Pacific View to the
performance of Pacific View's obligations under
this Agreement.
Consent. Any consent required by the Parties in
carrying out the terms of this Agreement shall
not unreasonably be withheld.
11.12 Effect on Title. Subject to the requirement
that Pacific View record a covenant as specified
in Section 3.1.1(B), this Agreement shall not
continue as an encumbrance against any portion
32
•
of the Property as to which this Agreement has
terminated.
11.13 Recording. The City Clerk shall cause a copy of
this Agreement to be executed by the City and
submit the same for recordation in the Official
Records of Orange County no later than ten (10)
days after the Effective Date. The recordation
of this Agreement is deemed a ministerial act
and the failure of the City to record the
Agreement as required by this Section and
Government Code Section 65868.5 does not make
the Agreement void or ineffective.
11.14 Institution of Legal Action. In addition to any
other rights or remedies, either Party may
institute legal action to cure, correct, or
remedy any Default, to enforce any provision of
this Agreement, to enjoin any threatened or
attempted violation of this Agreement, to
recover damages for any Default, or to obtain
any remedies consistent with the purpose of this
Agreement. Legal actions may be instituted in
the Superior Court of the County of Orange,
State of California, or in the Federal District
Court in the Central District of California.
11.15 Attorneys' Fees. In any arbitration, quasi-
judicial, administrative, or judicial proceeding
between the Parties initiated with respect to
this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and all
costs, expenses, and disbursements in connection
with such action.
11.16 Conditions Precedent to Effectiveness. In the
event this Agreement or any of the Discretionary
Approvals are overturned or ruled invalid by a
final non -appealable judgment of court of
competent jurisdiction, then all of Pacific
View's obligations hereunder (including, but not
limited to, Pacific View's obligations under
Sections 4.7 and 10 hereof) shall be deemed
null, void, and of no effect whatsoever.
Further, notwithstanding any other provision of
this Agreement, during any pending litigation
filed to challenge, review, enjoin, set -aside,
modify, or overturn the Technical Site Plan, the
Discretionary Approvals, Development Agreement,
environmental review in connection therewith, or
any of the rights of the Parties pursuant
thereto, all of Pacific View's obligations
hereunder (including, but not limited to,
Pacific View's obligations under Sections 4.7
and 10 hereof) shall be suspended and tolled;
33
• •
Date:
Date:
wb\agr\pacview. agt
24 August 1995
provided, however, that if Pacific View elects
to go forward under the Discretionary Approvals
and this Agreement during any pending
litigation, then notwithstanding such
litigation, the City shall cooperate and process
and issue all Project Specific Approvals
requested by Pacific View hereunder provided
that Pacific View complies with the provisions
of the Discretionary Approvals and this
Agreement. At Pacific View's request, the
period of any litigation not initiated by
Pacific View (including all appeals) shall be
added to the term of this Agreement.
Z$/Z r , 1995 CITY OF NEWPORT BEACH
By:
John Hedges, Mayor
, 1995 PACIFIC VIEW MEMORIAL PARK
Stephen 'L. Schacht
General Manager
34
State of California
County of Orange
On August 25, 1995 before
me, Irene Butler. Notary Public,
personally appeared John W. Hedges, Mayor and Stephen L. Schacht
❑ personally known to me - OR - I X I proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s)xis/are
subscribed to the within instrument and
acknowledged to me that :tis[sfas/they
executed the same in iais(hoaheir authorized
capacity(ies), and that by Ufa/their
signature(s) on the instrument the person(s),
orthe entity upon behalf of which the person(s)
acted, executed the instrument.
BUTLER
Comm. #100887E
ARY PUIUC CALIFONI
ORANO! COUNTY
Oa Oils Nit 11. 11417 4
WITNESS my hand and official seal.
CAPACITY CLAIMED BY SIGNER( S )
Individual
Rd Corporate Officer (Schacht
Limited Partner Pacific
_ General Partner
Attorney -in -Fact
Trustee(s)
Guardian/Conservator
Mayor Other: John W. Hedges
for
View).
Signer Is Representing:
City of Newport Beach as Mayor
DESCRIPTION. OF ATTACHED DOCUMENT
Development Agreement btw
City of Newport Beach & Pacific
View Memorial Park
Title or Type of Document
Number of Pages
August 25, 1995
Date of Document
N/A
Signer(s) Other Than Named Above
s •
LEGAL DESCRIPTION
THOSE PORTIONS OF BLOCKS 96 AND 97 OF IRVINE'S SUBDIVTS'Th t QTAs3SAc6AID
IRVINE'S SUBDIVISION IS SHOWN ON A MAP RECORDED IN BOOK 1, PAGE 88 OF
MISCELLANEOUS RECORD MAPS, RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS
FOLLOWS:
3EGINNING AT A POINT WHICH BEARS SOUTH 48 DEGREES 22' 19" WEST 72.11
FEET FROM THE MOST SOUTHERLY CORNER OF THAT CERTAIN "RESERVOIR SITE"
DESCRIBED IN DEED TO THE CITY OF NEWPORT;BEACH, RECORDED DECEMBER 20,
1957 IN BOOK 4143, PAGE 395 OF OFFICIAL RECORDS IN. THE OFFICE OF THE
RECORDER.OF SAID COUNTY; THENCE NORTH 48 DEGREES 22' 19" EAST ALONG THE
BOUNDARY OF SAID "RESERVOIR SITE" AND ITS SOUTHERLY PROLONGATION, 522.80
FEET TO AN ANGLE POINT THEREIN; THENCE NORTH 6 DEGREES 06' 36" EAST
1037.47 FEET TO THE SOUTHERLY CORNER OF TRACT NO. 9260 AS SHOWN ON A MAP
RECORDED IN BOOK 378, PAGES 32 THROUGH 37 OF MISCELLANEOUS MAPS, RECORDS
OF SAID COUNTY; THENCE, ALONG THE SOUTHEASTERLY LINE OF SAID TRACT AND
ALONG. THE SOUTHERLY LINE OF TRACT NO. 9261 AS SHOWN ON A MAP RECORDED IN
BOOK 360, PAGES 32 THROUGH 35 OF MISCELLANEOUS MAPS, RECORDS OF SAID
COUNTY, NORTH 73 DEGREES 19'.47" EAST 838.34 FEET TO THE WESTERLY LINE
OF TRACT NO. 7510 AS SHOWN ON A MAP RECORDED IN BOOK 292, PAGES 17
THROUGH 21 OF MISCELLANEOUS MAPS, RECORDS OF SAID COUNTY; THENCE, ALONG
SAID WESTERLY LINE, SOUTH 2•DEGREES 55' 15" EAST 55.91 FEET TO AN ANGLE
POINT THEREIN; THENCE, CONTINUING ALONG SAID WESTERLY LINE THE FOLLOWING
COURSES: SOUTH 5 DEGREES 43' 17" EAST 521.60 FEET; SOUTH 1 DEGREE 58'
54" EAST 289.17 FEET; SOUTH 16 DEGREES 41' 57" WEST 278.65 FEET; SOUTH
1 DEGREE 16' 57" EAST 137.14 FEET; SOUTH 32 DEGREES 58' 52" EAST 224.12
FEET; SOUTH 38 DEGREES 45' 29" EAST 91.05 FEET; AND SOUTH 55 DEGREES 09'
15" EAST 96.26 FEET; THENCE. SOUTH 17 DEGREES 59' 50" WEST ALONG THE
NORTHWESTERLY LINE OF LOT 1 OF SAID TRACT NO. 7510 AND THE NORTHWESTERLY
LINE OF LOT 12 OF TRACT NO. 7511 AS SHOWN ON A MAP RECORDED IN BOOK 292,
PAGES 22 AND 23 OF MISCELLANEOUS MAPS, RECORDS OF SAID COUNTY, 28.43
FEET TO AN ANGLE POINT IN THE NORTHWESTERLY BOUNDARY OF SAID TRACT NO.
7511; THENCE SOUTH 40 DEGREES. 36' 28" WEST ALONG SAID BOUNDARY, 600.67
FEET:TO THE MOST NORTHERLY CORNER OF THAT PARCEL OF LAND DESCRIBED IN
DEED TO THE IRVINE COMPANY, DATED AUGUST 3, 1971, RECORDED IN BOOK 9745,
PAGE 355 OF OFFICIAL RECORDS'OF SAID COUNTY; THENCE SOUTH 85 DEGREES 13'
50" WEST. ALONG THE NORTHWESTERLY LINE OF SAID PARCEL, 228.39 FEET TO AN
ANGLE POINT -THEREIN; THENCE NORTH 89 DEGREES 44' 43" WEST 129.98 FEET TO
A POINT IN THE SOUTHERLY LINE OF THAT CERTAIN LAND DESCRIBED IN A DEED
TO PACIFIC VIEW MEMORIAL PARK, RECORDED DECEMBER 17, 1958 IN BOOK 4518,
PAGE 207 OF OFFICIAL RECORDS OF SAID COUNTY, SAID POINT BEING DISTANT
SOUTH 84 DEGREES 18' 19" EAST 419.58 FEET'ALONG SAID SOUTHERLY LINE FROM
THE MOST SOUTHWESTERLY CORNER THEREOF; THENCE NORTH 84 DEGREES 18' 19"
WEST' ALONG LAST SAID LINE, 26.15 FEET! TO. THE MOST EASTERLY CORNER OF
THAT CERTAIN LAND DESCRIBED IN A DEED RECORDED AUGUST 3, 1971 IN BOOK
9745, PAGE.347.OF OFFICIAL RECORDS OF SAID COUNTY; THENCE, ALONG THE
SOUTHERLY AND WESTERLY LINES OF SAID DEED, THE FOLLOWING COURSES: NORTH
88 DEGREES 03' 25" WEST90.18 FEET; NORTH 88 DEGREES 03' 47" WEST 302.42
FEET, AND% NORTH 1 DEGREE 56' 50" EAST 25.78 tFEET TO THE MOST
SOUTHWESTER Y CORNER OF THAT PARCEL OF LAND DESCRIBED IN SAID DEED
RECORDED I1BOOK 4518, PAGE 207 OF OFFICIAL RECORDS OF SAID COUNTY;
THENCE,. ALONG THE SOUTHERLY LINE OF SAID PARCEL, NORTH 41 DEGREES 37'
41" WEST 565.00 FEET TO THE POINT OF BEGINNING.
EXHIBIT A
MIGUCL
�\9
JOAQUIN
CATAMAR
'pT
PORT
.,,r . ,-1 ,-•+
PACIFIC
VIEW
c
MEMORIAL '-'
Z.
rk
ZONE X
Cr
LIMIT OF
STUDY
WINO MEM
f r
11,
}
H
Sift
► •
0 ti
0
�oo
1>
MAP OF THE PROPERTY=
•
NOTE P reberty hand. n's were a from we legal deecT'olfa+ nob and
Wrings wen dgtlied tram the composile sato* map a FI507. life. Other sources
kRic. the Api me topographic army by Boyle Erpnee&g Corp the November.
agk survey by CJ Oayrd to Bock and Clark's National Sawyers Notook 1537 It
Cleveland-MnSon Ad. Akral Clip 443%3 Zieieee-42291. and the September. B9
flood M..no. Ride Map al Q'ugo Canty.
Bldg. Site "B"
FUNERAL HOME/CHAPEL/
CEMETERY OFFICES
CREMATORY
3e' culvert al M.dw.E
Future Garage/Salea Office
MAINTENANCE
AREA
Temp. Sales Trailer
Easement tor public utility
to P.olic Yaw Mernurlal POI
Future Maintenance Building
Ch.it'*H; lance encroachment
• Building Site "C'"
ISereenrg Mausoleum'
Bldg. envelope (typ.):
(Single -Family Residential)
Family Mausolea
Biog. Sue?, P.1
Concrete Walk
Concrote Drainage Swale
Community Mausoleu0p
Bldg, envelope (typ.l
Community Mausoleum
Bldg. envelope {typ:):
0 100 200'
l0 12. 94 0'46
1a_ P4y�.�• p, View Mem i i..P:cr.FDacific
corona del mar, 'california
•
Easement tar street pu'po•ee
to 6,n City of Newport Beath
6' wide eeeement lee underground 4»e
to Southern California Edison Ca
eb'
(School)
.18 1Vide Cry 1
1
(Since-F- ly Reeiden�tia
PACIFIC VIEW DRIVE
40' wide reed easement to
the Coy al Newport Beach
Wae
Garden of Remembrance;
Scattering Garden
t
Future Road
Garden of. Valor
sks '
pi' pa'
- •
•
.i Tea view-TeiracS-- ..
•
.I-r, - - M1 tug.
i . r !..' itx) 06aa•wwsyy
., 2I werwS _•
@,t;Dit
'�
(Big .Canyon Reservoir)
dg. envelope {typ•1
elf'Site
:6ing� li dies ,a
PER*42 lee
Pahl
Garden
5. re50' g5.4 9•W
Se'a.
an
3
„Gard Wet)
16' S. Crypt Wall
(Single- Family Residential)
All. elevations silo
Mean Sea Level.
Legerid
to • ■ Ns= • Property Line
1 Paved Road
(-__=__1 Unpaved Road
Existing Building
L
- -•-- - Electrical
- -0 • - - S}orm Sewer
- -w-•-- Water
- - •• - - Sanitary Sewer
Building Site Area
Concrete Drainage Swale
cngle-Family Residential)
e%
o
1
Bldg. envelope (typ.)
Concrete Dr.ln.ge riww
sit' °(`J (0111 '
n are above
HNICAL
�Yl
SrEET4
Plcific View Memorial Park INDEX MAP
BUILDING SITE 11D"
EXISTING TREE MA.S
SEE DEVELOPMENT AGREEMENT
SECTION 4.7
EXISTING SIIRUB MASSES
lob
k �7 BUILDING SI I‘H E
\ .••ract1
\ ''ram \\ \\\ \
IOE1! ILAN'UYALETIE
LAncn liars
YYlWL 4UrAxWAI NALIr
CINNAMOMIUM CAMVIIOFA CAMPHOR TARO
AIMINIU IAOIANDII'IYMA MAGNOIJA
PIMA. 11AU M: 11S MAIM PINE
MG
MMUS MIA
TONE I MOS I'A%v1YONA EVEMAILLN NM
TALL 1."S
AMU. 111MANIrM NAM
0 LIJCALYYNS LEIKSIDER AVIAJN
lYIO
ALYPNS SNFRO%YI-U
MUALIQu UTICA v UINLUUr1LA
WIXWIAYevw
TMWRANIAco.,A
T
SMALLTLI APEMAN INIIN
4plYYlNENL
41100IWN BANK
an MIN DANK
IIQVIDAMSrA 'MEP
...PAPERDARK
NOMAIPINE
1Mu sxe nn%
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SYNLLy 1121821'A, HAW
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YWW111N11 EA SAP. p0DMNYNIN
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r4CA1LM1u Mp*KAK%TA COMPACT ESCAL.uMIA
CAPE PI.UMSAW
w ▪ rmoumS INDICA INDIAN luwnmRN
N01IMICO IM SUMAS
W TANIry 14A1111
1
4
Nxnriw1YL4Ir111 1ND1.1xrA W11 I M N AILING c%uM
'IA MOIL!,'Unv I0AW
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UPOIICOViAS TO I a.CL au SS(CsO *4 TO
421
BUILDING SITE H
•
,\\ ;‘, , et
\ \ \ \*\ c \ .N \ (4)''t:**:--;1C--- — „/ -- I 1 J----_______
\ \ \ \ \
` r `r •rr /
/ rrrrrrrrr
00000000
\ J r rr r r .r
r /mil/
\ 3prrrr'' 1'
SEE PEVEyOPMENT AGREEMENT
SECTION 4.6
70D/
EXHIBIT D
MINIMUM CONTAINFR SIZES
• 36• BOX
D 24- BOX
+ 15 GALLON
• 5 GALLON
▪ 1 GALLON
TURF AREAS WILL BE SODDED OR
SEEDED.
$DPwfl—IO-Ar
Imola
1.M:�
Om w a I1M•SWM W <MaIa. MY- I.IRItl bPv a1}, lN. I8 shah OW v. ygle 1Ypi)ece *male siplyasb YI.•4Mpumas. Wp0]Ym. 11AAalu*e I.-*. by IA Na.**C 4*whale V M pin WOVA 1111— aaasa, L OML* Ammacw. irohlatat leg. SSrt W p/ua MPS 11w E 0( IaCCMW Pan. PIM** MAIM MY.. — •I•yN. and a Men 51.A mIIIMA• PAM Na•t*Ip d Am 1aAp11waA1rlyryya
•:-
% \
\ **•ik, **1.
\ ;-
„,
• 0
„EX ISTING THEE MA4SE
EXISTING SHRUB MASS
IEEE DEVELOPIiNT.AGREEME+IT
MINIMUM CONTAINFR SIZES
• 36 BOX
le BOX
+ 15 GALLON
• 5 GALLON
• 1 GALLON
TURF AREAS WILL BE SODDED OR
SEEDED.
re Jr°
-01 X
... :plying= ITiLATT.T CAM Ia MONAD TO rserimui namcr tuadmi LDUtA
Rana
• C"..."MUITATC.:rinak eitAGTAXT nryontmum vAntaArA • VATUECTAllo Akre co-r008 •
, .
..
; MEDIUM. WIVES • e ; ; •
&WM. If glitliaLikagi
• • anus vittocus • MAPLE LOCiaten
• • LACALAC•41A criTTAATA COMPACT E.SCALLatim
..TALL TROTT ' •
/WAX W_CAI HALT
EUCALYPTUS LAUCTAXYLON
OALICALTrrif SIDELOAILON
LIQUIDAMIGA STYITACIALDA
MELALIEITCA tAnnQUIITIRVA
cnn
' TILITAKIA CONITEITA
SMALL TO MALAN. Tian
MOLL TILIATTICALBALTM 011.11211112.1411
CUTANZIWSIS ANAcANDIODBI
0 DAG ITURDIA
nTIOSPOTTUTA ILTICAIDirouttLi
OTTSICUS ILEA
TAE/um ITU
. .
•
. .
LicinDALizat Mil • :
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: • 1.1.
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ITT IA YOroiti ii4 Mancum
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ACAOA ALDOLzia r
'LOW ITO
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HOLLY OAS, as Soutar:en ovTti a I ac#. ant. is 70f FIXT
MIX litintrei MS— . „...7
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LOW)" ACACIA
/
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• .‘ - IA -to .
t
\ nrsegalC
BUILDING SITEEu
• **
/•I *****
/ #
(/
---- •
*****
***
W. •
• /
• /
//. :et7C USIiI
g:.LerVENT AGREEMENT! /ta
***
Norco Occter)
FirrINUTATION AREA I.
:ExthiNd -niEg iviAss
kw'
0
UrILDIN
"F"
GARDEN -
PALM COU
Ft4.4 f sPFzu%
wis-nuti Imp wa- "gam
N ‘61-
• attidirKati
.°4
1):‘,
XHI IT ,b
••• -- yarned to tn....* sistnnich lbw min ;mannru oa:00.10winct nem* ...aid so lissica napriTaamn. Taatamien. te-a• Wavy Treed At.Lsce pwalompt ins eniproini OTTIT 4 Omen Aisoolma peon An es Ana mamas:wow rows..C.bric • On. 14 ti inisa LYS Anse ALTA Owes ;frond 'point inel ones, Oen isarirafros c. 1 banoweLS AA.
1
0E1 it 1111 it
6carstritio-qc-
ill
• ,
PROPOSED IN ANT PAY FTTF
SRRUWS
[ALL DIRGES OLLOW CAN BE PRUNED TO KEEP WITHIN PROJECT IIFJGNY LIMITATNNE)
LAGUNITA ' OURT I
0
SEE DEVEtD➢MENT AGREEMENT
SECTION 4.4'
SEE DEVELOPMENT AGREEMENT
SECTION 4,6 _
4 44,6
SXMDOL YIRAHICAI NAMP
Ty CINNANOMNM CAMI'NORA CAMPHOR TREE
MAGNOLIA ORAMDIELORA MAGNOLIA
. PINUS IIALIFFH515 ALLEPPO PINE
PINUS M4 STCNE. WIN
ULMUS FARVIFOMA EVERGREEN ELM
•
TALL.TReES
SYMBOL MIEANICAI.NAUP COMMON NRMA
EUCALYPTUS LEUCOXYLON
0 EUCALYTIEJS SIDERO%ttLN
UQUIDAISE SITLUA
MELALBUCA QIINQWINEIIVA
FTUSELDEA
TEISTAWA CONPIMA
SMALL TO MEDIUM TBPES
GYLHUT. mrsincehkewnie
0
pAM EUROPA
PNNSroBIM AMOMREODUM
QUERNS IIAI
TAUESUTA RB
PROPERTY LINE
COP OWE$ i_ R1140r
WARE IRON BARK
RED IRON BARK
ISQUIOAMBIA TREE
WHITE PAPER BARS
MOIDAIE PINE
BRISBANE VOX
CRMMDNNAMP
CARRO11R11
OWE TRES
HOLLY OAK
PRK TRUMPET TREE
ENT. AGREEMENT„
446.4
•
•
435,1
LARGE SHRUBS
MILE ZO WNICAI NAME MMMNN RAMP
CRANU1NUS CONCHA HYBRID CALIFORNIA ILIAC
/1 MYOIVRUM L\GTUN NCN
\J 1'NTHSttIRUM VARIEGATA VARIEGATED MOCK ORANGE.
TECOMERIA CAPBNSIS CAPE HONEYSUCKLE
XYLOSMA CIXIGFSTUM SHINY XYLOSMA
MFLIVM SHRUBS
CISNS VILLOSUS 0
FSCALLLNIA COMMKTA
I'LUMVAOO CAPENSIS
RAPIIIOLEPIS INDICA
GROUNOCOVWI SHRUBS
COMMONNAMP
BOUGAINVILLEA
PURPLE Rl%'KROSB
COMPACT ESCALILNI
CAPE 'LUMBAGO
INOIAN HAWTHORN
SEMI%%. ILOIMILCM.116246 CCDIMODAMAE
0
1
LANTANA MONIIVIDEMIS PVPPE TIAINNO LANTANA
MYOPORUM PACIFICUM TRAILINO MYOPORUM
ACACIA REIJOUSNS'ILW BOY' LOW BOV ACACIA
All OI1gBD(W Cp TO. I GAL a>a BIRCH, S PEST
o
TJ.IMTTATION AREA A
---- -f1
■
i
r--
1•W{Jr11IM CONTAINER iVF[
36' BOX
D 74' BOX
+ I5 GALLON
S GALLON
.EXHIBIT D
40-4
0
I'
P..
kit=legs
sin Ns.
Gan
• 1 GALLON
TURF AREAS WILL BE SODDED OR
SEEDED.
Ty use r NH' plan pop pu onotli w ree1004.119 MMPw NO r..NW wn mend .nlptlAron N.w. OPMIP/ 'Mono vmu.Rs•mla.n. MMslsw.aI..s•'Aa.Hw.Rwrs..A M.1tit sw m..r wan R areMAIIIIdliallrebibdTamn«M...M s.mw — W. Owls.. w.a «N.N .n....-- es c'... .a. m» aerr a wP sway"r
r•
PN Ib SER PI ANT PALETFF
UM AMDM C kiNER.ry AN.
.A
IR MNIfATOXH�. Grn?N,1 NDTF •:E -
IS NI
SEE DEVELOPMENT AGREEMENT
SECTION 4.6
•
WIN 1=
'SEE OEVEWPMENTAGREEMENT-
SECTION 'a.tad
MI SR
•
u
-Tor P10.3
N£IGITT LIMITATION AREA __ I .-.
TIERS
LARGE
WANT ,�
SYMIIDII .EeAIErM New.; COMIER INUR .
0AMOWUM GWMOII CJ.YML4 TRY
IMYA OYANNIIWM 1 I.GGN[LL\
HNUSNANNMDT YNIONM
LRAM nuAIVIIOIM I NFIIO[M1fMY
SMELL I
I6UALP Asm NBDryERLW1LOVLIO
IMAM -WA 411.1INMNBIUV
AA
/MSMDRCI •
.
TADEAMA con TA_
PIS
IEFAIEI'u NAVl .
• 1 1 L ZGLTIRUOS I.
IMES. WITANmu N.Me Etlialetligta !'
COSIMOILISALUI
RxiiitiotaliORNIA INK
NO, 3.
VAMOSATHI NOR OPANOE
W[IIONEYEINYIS
SHINY XTI6MA
•
S.
•
t0AINVILLM i mf
WNDI non MIA. clnO VI13O5115 M'.UPPNE RCA OP0,0
AHD Mole MITI 'O GWAIIA WNIARA VAR CTCANMM
!LUMBAGO HMIGON HFIGPI M1VNAOBRimeWR IAHf HA[R -:, MHIE WMI'I MIA, IDMIMO[N
M%NMJ POW
YISMNB p% • r dt1Hoo 9vn MIIDO . . -
aTMME..INANIPAI NO6 fDMRMYR1ME
aseaml
lux[OI3 GANOTWO
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OM MNWMWIIUM WONDANN D PRIRWM..
ILEXNOLLT (usUTA1rr0: • rumTMMBMT TR
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•
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Tealla [OM VA[NMATA
nLEGNA CCNENOE
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M%UILM1111WMB
EMEM wfAyjfAI RNO
,NMIAINVILLPA AI.
I��lV
BUILDING. SITE-°G"
PACIPIt VIEW CANNOT GUARANTEE THE ACTUAL GROWTH
. MATE AND SUE FOR PROPOSED PLANT MATERIAL'DUE TO
. UNFORESEEABLE FACTORS IN PLANT GROWTH.. . ...
• THE INFORMATION PROVIDED PO[ PLANT SPECUICATNNS'12
GATHERED PROM THE 1I SFTJVP THAN GARDEN ROOK AJJD
1 THIS PUN REPRESENTS MINIMUM QUANTITIES AND SNP[ OF
TREES UM SHRUBS. PACIFIC VIEW RESERVES THE ROUT TO
. INCREASE QUAHTMES. STRCIPS. AND SIZES AND TO MARE
REASONABLE. ADJUSTMENTSN LOCATION DUE TO -That
GRADING CONOMIO $ OR SOIL CORDTSANR,_ ..:'..
I. THE TERNS'aND OF TH6'9RVELOMEMf
. AGREEMENT TO BE BETWEEN PACIFIC VIEW AHD..
THE OTTOFMwrWI EACHSUPERSEDS ANY PROVISIONS OF
♦ _ .': THESE }L.013IN THEE NT OF ANY CONE ICE.:. . .
LANTANA MOMMVIODYR RWIRI TEARING wank..
MYMO[MMIACIPICUM TIAIIINC MYOYO[UM AACILAOGmiVIRTAODYR I MALiO_*a A�C5®LS _
TO f l6T
EXISTING SHRUB MASSES
EXISTING TREE MASSES
SEE OEVEI.OPMENT AGREEMENT
SECTION I.1.1d
£IGIIT I.11.4 ION AREA-
1r+75o
L ---- - - - - - - --1 --
cAlztlfs - Mrviuw - s
•
HH I BIT- D
t
II
t
} .11JM CONTARIPR
■ 36* BOX
G 24• BOX •
I- 15 GALLON`
TURF AREAS...WILL BB SODDED. -OR .
•
Tb tend then IYA awl wtlMOW IMA Y IwWA.Ab M SW ...nit" ewe— pOAI N pales IMM •*owe MOM bsMI tam P.inpolla. YPM w F Awned **lbw M Yy11YNM Magma PYA rQM I fininsios YAl4a.4 The dint MYb,M Iw^rIFOAI \OMMBO.OM••AIIIOA OMWB
worms
AMJ..Aw
lee Ma
Ti.
II wawa Mn tam pun Mmom*AM W lomen mw, AArurB� wen" Imo Noma" TM '
PROPOSED PLANT PAPCTTE
SUPUTAT
TREES - CALL NAUSS MUOW CAN BA NIUNED TO XEEP wmmilN PRONGS HEIGHT MUTATIONS)
LARGE TREY . LARGE SHRUBS
. EYNOa _. lWAHIrAI HAM! ROM ENLMAME ... SYMOL
0CINNAYGWUN CAWHGM CAMPHOR TREE CMNOINUS CONCHA . HYBRIDGTSPWINA MAC
MAGNOLL�GMNOHLGM NAGNMAGNOLIAMYOPOWYLAHNN
. SINUS HALFPFNSH ACCEPT PINE O 'lTOREOWM VAREOATA VARIEGATED MC= ORANGE
•
SINUS MS& nate rim TEMY%RIA CAPEIOH CAPE HGNBYSUCCLE
ULMUS PASSIM/NA RUMEN NM • XYLOSMA CON013TUM UNIT XYLOSMA
TAW TARES
•YMM1 PGTAMrAL NAYP CDC
EUCALYPTS LWCUXYIDN WARE IRON RARE
EUCALYPTUS SOIEROXYLON PID EON MR[
LIQUTAMER STYRACPI.UA MUMMER TREE
MEIAIEUA QUINQUINERVA WERE IAPY ARIL
TM ELDEMCA MONDALE PINE
TRMTANIA CONFETTI A PMLPAME SOX
SMALL TO MEDIUM TREY
UMW. 1111WIDAI. MAMP CIARIREE&WI
CUPAYOPSLS ANAWDIODY CAAROIWOW
OIEA EUROPA OWE TIES
IIITOPTRUM RHOMIIFO[IDY QUEENSLAND PIPTSPORUM
QURRCUS UM DOILY OAT
TASYUIA M PIOX TRUMPED TREE
MWM3f WADY
SYAfEOL EOtMlrALNAME
CCOOLOILEANS
ROUAI1VELEA Yl. BOUGAINVILLEA
CISTUS Vwmu3 PAPLI ROO/ROSE O
ESCALLONIA COMM/TA COMPACT ESAYDNIA
PLUMRAOO CA/MIS CAPE PLUME/GO
RM12EOLGPD INDICA RONAN GWMCWII
GRovmCOVfl SHRUBS
Ulna WIT*STCAL. NAYA COMfORLALO
LANTANA MOMLLVIOEIIH PUIPLETMIWW LANTANA
MTCPoRUM TAQOCOM TRAODIO MYOTRUM
AAQA SEMI Ian •IOW SOY LOW EDT ACACIA
ALLOROUIOILYMY TO W11 GAI.R03Muo is TO DM •
SQjPIti11PA CONSAINPR ST7F.
D . 24• BOX
IS GALLON
S GALLON
• I GALLON
TURF AREAS WILL BE SODDED OR
SEEDED.
EXHIBIT D �C
!'
R
i
Albeit).S44;
idititse
adage All.
aim
M jibed pay (Y- ws1OIM -W p•-Ih1S Y15.ag16141 55100•MA they an [raw era pA4vm '-el -p •mA•E5 myth w R.p sgnt phiestest d Ind by Ant Meal in wd* Mput maw W5WAR[WWI OA&1&anMMealr-pdtlAl ids YMYtYgP NIMAInkMws 1YW1 In CI L 6M Aeal- a1A vw.s YW a•da -W 15p-S tw watarti A RW ara5a P-YYuwN•b d f-mpno d Mom vevt
• • •
- —
rv'-6"m n7 r i,ta-
,t4 i1-- U s o L U
SC-- co
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1'
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cis
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bile) 7-/0-45
EXHIBIT F-
�.-_---�.tass .nal ear inn a wwbiess ieam.rniuM—,sews ems. v Te M Anew. FAYe n--I�tM1�os— -S .{ G•wwer • pan. Imo- AA•w•Pmerars a 0..46rw senAr ems.. YYrm!-n•••• A wvnto adenoma snowman= iuA_.---
• •
itsv.TheaStazro
r`f 4,sio
rr—
kk
%/a t/
ed- a ` `%A4-cf
/b'
eo'ae94
e8: Ye's(
GT Zl
�,5•40-a nEcietC0
Y..
Pacific View Memorial Park
•
Apetwp 1- IO-4S
EXHIBIT E..
—__ ..._._ .,_.. ......_. M_.••.••• .•LaInallnien..__Nt.....2•._••••••••.Smite...adWOMEN. _._.,..._.. ___.0••..at_._-_--. —___
•
rn f2o
.r-
' e-: "
9PG?/Or</G-G '
-GT05/rafS
Pacific View Memorial park
Kona— 15
EXHIBIT E
^^'wo•s•m•s M.w wT_aniiSa4otr lJ wwfPw_l.ln ssw T.4r_tw���l�w ommoc vmR FMtNwa_A4Mfte.da w•.� �war-arrawfi ____
•
i •
-R5
44
_— Go' a.rcFc
r aMrrrhn l
9 /O.(/'
"GO' 9e7 -tc,€-. oP7yo /
T�
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•a9)+-c(o yt jr.•/o ..•
774Creaet, ersra_-
/P 41@ri473 .10102 %a5R
ONLY
672$
p/TY_a AXj. 6
ever-cow...rr
1
m
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EXHIBIT G
[Date]
[Recipient]
Re: Development Agreement Between the City of Newport Beach
and Pacific View Memorial Park
Gentlemen:
The [CERTIFYING PARTY] certifies as follows as of the date
first set forth above:
1. The City of Newport Beach ("City") and Pierce Brothers, a
California corporation doing business as Pacific View Memorial Park
("Pacific View") are parties to a Development Agreement dated
(the "Development Agreement") with respect to Pacific
View Memorial Park, which is located in Newport Beach, California
(the "Premises").
2. The Development Agreement is in full force and effect and is
a binding obligation of the parties.
[3a. The Development Agreement has not been amended or modified
either orally or in writing.]
or
[3b. The Development Agreement has been amended by mutual agreement
of the parties. A copy of the Development Agreement as amended is
attached as Exhibit 1.']
[4a. [CERTIFYING PARTY] has no knowledge of any default in the
performance of the [REQUESTING PARTY'S] obligations under the
Development Agreement.]
[4b. [REQUESTING PARTY] is in default of its obligations under the
Development Agreement as follows:]
4. [CERTIFYING PARTY] makes this certificate with the
understanding that [Recipient] is contemplating acquiring the
Premises, and that if [Recipient] acquires the Premises,
[Recipient] will do so on material reliance on this certificate.
Very Truly Yours,
CERTIFYING PARTY
cc: [REQUESTING PARTY]
Pvicertif.doc
EXHIBIT. G
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Pacific View Memorial Park
3500 Pacific View Drive
Newport Beach, CA 92663
Attention: Steve Schacht
COVENANT AND AGREEMENT
This Covenant and Agreement ("Agreement") is made and entered
into by and between Pierce Brothers, a California corporation doing
business as Pacific View Memorial Park ("Owner") on the one hand
and the City of Newport Beach ("City") on the other hand this 28th
day of August, 1995.
A. Owner is the owner of property described and depicted on
Exhibit A (which is identical to the Technical Site Plan
approved by the City Council on July 10, 1995) hereto,
together with the improvements located thereon ("Pacific View
Memorial Park").
B. City has approved an updated master plan for Pacific View
Memorial Park through the approval of Mitigated Negative
Declaration (the "Negative Declaration"), General Plan
Amendment No. 94-1(F) ("General Plan Amendment"), and Use
Permit No. 3518 ("UP"), Site Plan Review No. 69 and the
Development Agreement dated July 10, 1995 between Owner and
the City ("Development Agreement") (collectively, the
"Approvals").
C. In connection with the Approvals, Owner has agreed to provide
and maintain a permanent landscaped buffer area within the
area described on Exhibit A within Pacific View Memorial Park
(the "Buffer Area"), and to record this covenant and agreement
to ensure that the Buffer Area is maintained in perpetuity.
AGREEMENT
Now therefore in consideration of the mutual benefits to be
derived from the City's Approvals, and other good and valuable
consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereby agree as follows:
1. Buffer Area. Owner shall improve and maintain the area
described in Exhibit A as a landscaped buffer area (the
"Buffer Area") in perpetuity. No structures,. public access,
roads, walkways, walls (other than retaining walls and
existing underground utilities), ground interments or other
form of burial, preservation of remains, plaques, memorials or
monuments of any kind shall be permitted within the Buffer
Area.
EXHIBIT
2. Encroachments Into Buffer Area.
encroach into the Buffer Area,
Buffer Area landscaping and
following:
Owner shall have the right to
and to remove and/or disturb
irrigation, subject to the
a. The encroachment, disturbance, or removal
shall only be to the minimum extent reasonably
necessary to accommodate slope maintenance,
slope repair or construction within Building
Sites E and G (as defined by the Development
Agreement); and
b. Owner shall restore the Buffer Area, including
landscaping and irrigation, to its condition
prior to the encroachment, disturbance or
removal as soon as possible after the
encroachment is no longer necessary to
accommodate slope maintenance, slope repair or
construction activities.
3. Maintenance of Buffer Area Landscaping. Owner shall maintain
the landscaping and irrigation system within the Buffer Area
in accordance with the Final Landscape Plan approved by the
City for the Buffer Area (as defined by the Development
Agreement).
4. Conditions to Continued Effectiveness. In the event that any
of the Approvals are overturned or ruled invalid by a final
non -appealable judgment of court of competent jurisdiction as
the result of• litigation initiated by any third party then
this Covenant and all of Owner's obligations hereunder shall
automatically be deemed null, void, and of no effect
whatsoever. City shall execute and deliver to Owner a release
of this Covenant in recordable form in the event third party
litigation results in a final non -appealable judgment or order
invalidating any of the approvals. Except as provided in this
Section, this Covenant shall remain in full force and effect
in perpetuity.
5. Successors and Assigns. This Agreement is a covenant and
agreement running with Pacific View Memorial Park and shall be
binding upon Owner and its successors and assigns.
IN WITNESS WHEREOF, this Covenant and Agreement has been
executed the day and year first above written.
CITY OF NEWPORT BEACH
John W. Hedges
By:
Mayor
PIERCE BROTHERS, a
California corporation doing business
as Pacific View Memorial Park
By:
Stephen L. Sch
acht
General Manager
Its: /f/tti �/ `� •
de\ag\PVCovAgt.doc
State of California
County of Orange
On August 28, 1995 before me, Irene Butler. Notary Public,
personally appeared John W. Hedges, Mayor and Stephen L. Schacht, GM
Pacific View Memorial Park
Elpersonally known to me - OR -
Comm MOM
as . eenMUOV
INPtit
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-Ijefsheithey
executed the same in his/her/their authorized
capacity(ies), and that by-his/herttheir
signature(s) on the instrument the person(s),
orthe entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
izeit
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
Covenant Agreement
Individual btw City/Pacific View Memorial
j Corporate Officer Pacific View Park
emorial Park Title or Type of Document
Limited Partner
General Partner
Attorney -in -Fact
Trustee(s)
Guardian/Conservator
Mayor Other: John W. Hedges August 28, 1995
Signer is Representing:
Mayor of City of Newport Beach
Number of Pages
Date of Document
N/A
Signer(s) Other Than Named Above
!!
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ORDINANCE NO. 95-26
AN ORDINANCE OF THE CITY OF NEWPORT BEACH
ADOPTING A DEVELOPMENT AGREEMENT BETWEEN THE
CITY OF NEWPORT BEACH AND THE PIERCE BROTHERS
CORPORATION DOING BUSINESS AS PACIFIC VIEW
MEMORIAL PARK WITH RESPECT TO THE PACIFIC VIEW
MEMORIAL PARK MASTER PLAN
(DEVELOPMENT AGREEMENT NO. '7)
The City Council of the City of Newport Beach DOES ORDAIN as follows:
SECTION I. The City Council finds and declares that:
a. The State Legislature and the City Council have determined that the lack of
certainty in the approval of development projects can result in a waste of resources, escalate the cost of
housing and other development to the consumer, and discourage investment in and commitment to
comprehensive planning which would make maximum efficient utilization of resources at the least
economic cost to the public; and
b. Assurance that an applicant may proceed with a project in accordance with
existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public
planning process, encourage private participation in comprehensive planning, and reduce the economic
costs of development; and
c. California Government Code Section 65864 et seq. authorizes cities to enter
into development agreements with any person having a legal or equitable interest in real property for
the development of the property; and
d. Chapter 15.45 of the Newport Beach Municipal Code provides requirements
and procedures for the amendment of development agreements; and
e. The amendment to Development Agreement No. 7 has been prepared in
compliance with state law and the Newport Beach Municipal Code; and
f. In compliance with state law and city ordinance, a duly noticed public hearing
was held by the City Council to consider Development Agreement No. 7; and
g. The City Council finds that Development Agreement No. 7 is in compliance
with the California Environmental Quality Act and Guidelines promulgated thereunder; and
• •
h. The City Council finds that said Development Agreement No. 7 is in
conformance with the Newport Beach General Plan.
SECTION 2. Development Agreement No. 7 (Ordinance No. 95-26) is hereby
adopted and made a part hereof by this reference.
SECTION 3. Copies of said Development Agreement are on file in the offices of the
City Clerk and Planning Department of the City of Newport Beach.
SECTION 4. This Ordinance shall be published once in the official newspaper of the
City, and the same shall be effective thirty (30) days after the date of its adoption.
This Ordinance was introduced at a regular meeting of the City Council of the City of Newport
Beach held on the 26th day of June ,1995, and was adopted on the loth day of July ,
1995, by the following vote, to wit:
AYES, COUNCIL MEMBERS EDWARDS, WATT,
HEDGES. COX. GLOVER. O'NEIL
NOES, COUNCIL MEMBERS NONE
ABSENT COUNCIL MEMBERS DEBAY
MAYOR
AlIhST
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