FOURTH AMENDMENT TO
BUDDHIST MEMORIAL COMPLEX
DEVELOPMENT AND USE AGREEMENT
THIS FOURTH AMENDMENT pertains to that certain BUDDHIST MEMORIAL
COMPLEX DEVELOPMENT AND USE AGREEMENT (the "Agreement"), dated March 1, 1994, by
and between Rose Hills Memorial Park Association, a California nonprofit mutual
benefit corporation ("Association") and the International Buddhist Progress
Society, a California nonprofit religious corporation ("Temple"), as amended by
the First Amendment to the Agreement dated September 1, 1994, by the Second
Amendment to Agreement dated March 15, 1995, and by the Third Amendment to
Agreement dated May 15, 1995.
RECITALS
Association has completed the final design of the off-site and
infra-structure improvements and is in the process of obtaining permits from the
County Public Works Department.
As a result of design changes which have occurred in the approval
process, the legal description of the Property and Adjacent Site have been
changed.
In order to memorialize these changes and to more particularly set
forth the expectations of the parties during the construction phase, the
Agreement is hereby-amended as follows:
AMENDMENTS
1. Paragraph 1.1 of the Agreement is hereby amended to
read in full as follows:
"1.1 Property. Association is the owner of those certain
premises (the "Property") consisting of the real property described in Exhibit
"A" (Parcel A) attached hereto (the "Site"), on which a columbarium and related
facilities (the "Buddhist Memorial Complex" or "Complex") are to be constructed
in accordance with this Agreement. The Property is located within the larger
cemetery commonly known as Rose Hills Memorial Park (Whittier, California) (the
"Memorial Park")."
2. Paragraph 1.3 of the Agreement is hereby amended to
read in full as follows:
"1.3 Adjacent Site. Adjacent to the Site is additional
undeveloped real property owned by Association (the "Adjacent
Site"), as to which Temple is acquiring certain options and
rights under this Agreement. The Adjacent Site is described in
Exhibit "B" (Parcel B) attached hereto."
3. Paragraph 3.1 of the Agreement is hereby amended to
read in full as follows:
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"3.1 Tide and Efforts. Temple shall devote, and shall cause
the Contractors to devote, such time, effort and skill to the Complex as may be
necessary for the efficient and successful performance of the work. As
expeditiously as possible, Temple shall cause construction of the Complex to be
commenced, thereafter shall cause such construction to be diligently prosecuted
to completion, and shall cause the same to be completed, within eighteen (18)
months after the date of the completion of the finished lot by Association (as
provided in paragraph 4.1) and the issuance of all required building permits,
but in no event later than three (3) years from the execution of this Fourth
Amendment to the Agreement. Association shall promptly perform its obligations
under this Agreement, as amended, so as not to prevent Temple's timely
construction of the Complex."
4. Subparagraph 4.1.7 is hereby added to paragraph 4.1
of the Agreement, to read as follows:
"4.1.7 Association to Act as General Contractor. Association
shall act as the General Contractor for the construction of the finished lot, as
described in paragraph 4.1.1. Association shall solicit bids from
subcontractors. Temple shall be entitled to approve the selection of the
subcontractors. Association shall supervise the construction. However, Temple
shall have the final authority to approve contract changes, payment schedules,
construction schedules, the quality of construction, and items of a similar
nature. Association shall be entitled to a contractor's fee in an amount equal
to five percent (5) of the cost for the improvements described in paragraph
4.1.3, as compensation for serving as General Contractor. Temple shall have the
final responsibility for the grading of the pagoda pad and for the construction
of the pagoda and stupa garden. Association shall have no responsibility for the
grading of the pagoda pad or construction of the structure."
5. Paragraph 6.1 of the Agreement is hereby amended to
read in full as follows:
"6.1 Exclusive Ownership of Rights. Temple shall have the
exclusive ownership of all interment rights associated with the Site including
the right to resell plots to members of the public. Notwithstanding the
termination of this Agreement, the interred remains and inurned ashes within the
Property shall not be disturbed, unless required by California Health and Safety
Code Sections 7500 et seq. The term "plot" shall include niches in the
columbarium and lots or spaces in the stupa garden."
6. Paragraph 6.3 of the Agreement is hereby amended to
read in full as follows:
"6.3 Sales. In addition to payments under Paragraph
4.7.2(a), Temple shall pay to Association, commencing with the
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completion of the construction of the columbarium and/or stupa garden and the
sale of the first plot, the following amounts as revenue from the sale of plots
is received by Temple:
(a) With respect to the first Five Thousand (5,000) plots
in the Complex sold, Seventy Five Dollars ($75.00)
per plot.
(b) Thereafter, Fifty Dollars ($50.00) per plot."
7. Paragraph 6.5 of the Agreement is hereby amended to
read in full as follows:
"6.5 Endowment Care. Association shall establish a Special
Care Fund within its irrevocable Endowment Care Fund in accordance with the
provisions of California Health and Safety Code Section 8725 et seq. (the
"Fund") for the exclusive benefit of the Complex. Commencing with the completion
of the columbarium and/or stupa garden and the sale of the first plot, at the
time of sale of each plot Temple shall deposit into the Fund the sum of Sixty
Dollars ($60.00) or that sum required under current Applicable Law, whichever is
greater. Association shall pay for the care on donated plots."
8. Paragraph 12.2 of the Agreement is hereby amended
to read in full as follows:
"12.2 Insurance. Except as otherwise provided herein,
Association and Temple shall procure and maintain throughout the term of this
Agreement for the joint benefit of Temple and Association, the insurance
hereinafter described. Association shall solicit bids from insurance carriers,
recommend choices for approval, and, upon obtaining Temple's approval (which
approval shall not be unreasonably withheld), procure the insurance coverage, as
follows:
(a) Association to purchase Builder's Risk Policy or a
Course of Construction Policy covering the Complex
during the course of construction against loss or
damage in an amount not less than the full
replacement cost of the Complex. Any additional
premium for this coverage shall be paid by Temple.
Association shall name Temple as a named insured
under said Course of Construction Policy.
(b) Association to purchase policies of insurance
insuring the Real Property against loss or damage
by risks embraced in coverage of the type now
known as the broad form of all-risk, extended
coverage in an amount not less than the full
replacement cost of the Complex, and with not more
than $5,000.00 deductible. The policies of
insurance shall contain the "replacement cost
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endorsement". Association shall name Temple as a
loss payee on said Property Policy."
9. Paragraph 16.16 of the Agreement is hereby amended
to read in full as follows:
16.16 Designated Representatives. The following persons shall
be the "Designated Representatives" of Association and Temple for purposes of
receiving notices, documents and information and granting or withholding
approvals under this Agreement. The Designated Representatives named below may
be changed from time to time by written notice given pursuant to Article XIV of
this Agreement.
Temple: RUH-XXXX XX, Ph.D.
Association: XXXXXX X. XXXXXXX
XXXXX XXXXX, for planning, design and
construction approvals
XXXXX XXXXXXX, for planning, design and
construction approvals."
10. Except as herein expressly amended, the Agreement,
as previously amended, shall remain in full force and effect.
IN WITNESS WHEREOF the parties have executed this Fourth
Amendment as of the 15th day of October, 1995.
INTERNATIONAL BUDDHIST PROGRESS ROSE HILLS MEMORIAL PARK
SOCIETY, a California nonprofit ASSOCIATION, a California
nonprofit religious corporation mutual benefit corporation
By: By:
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Its: Its:
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