SECOND AMENDMENT TO
BUDDHIST MEMORIAL COMPLEX
DEVELOPMENT AND USE AGREEMENT
THIS SECOND 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 that certain First Amendment to the Agreement dated
September 1, 1994.
RECITALS
Association has completed the preliminary design of the
off-site and infra-structure improvements and has submitted the same to the
County Planning Department ("County") for review. The County, in its response,
has imposed requirements that were not contemplated by the parties at the time
that the Agreement was negotiated. It is anticipated that the additional
requirements imposed by the County will increase the costs of the off-site
improvements and infra-structure. The parties desire to amend the Agreement in
order to make provisions for the anticipated additional costs and/or time
delays.
AMENDMENTS
1. Paragraph 3.1 of the Agreement is hereby amended to
read in full as follows:
"3.1 Time 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 permits, but in no
event later than three (3) years from the execution of this Second 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."
2. Paragraph 4.1. of the Agreement is hereby amended
to read in full as follows:
"4.1 Condition of Site; Initial Site Improvements.
Association shall deliver control of the Site to Temple, prior to the
commencement of the Work, in the condition as a "finished lot".
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4.1.1 Finished Lot. The "finished lot" shall include without
limitation, all required on-site and off-site improvements (see Exhibit "A" of
this Second Amendment for location), such as paved access roads, water, sewer
(by septic tank), electrical power, telephone, gas, drainage improvements,
landscape, street lights, curbs and gutters, and rough grading, so as to permit
the construction of the Complex by Temple without further material site
improvements.
4.1.2 Association Access Road. Association shall be
responsible, at its sole costs and expense, for the preparation of the
engineering and for the construction of all infra-structures associated with the
forty-two (42) foot wide access road (the "Association access road"), and other
improvements described in paragraph 4.l.l, from the starting point (near
Mariposa Terrace) to the proposed entry gate of the Buddhist Memorial Complex,
as more particularly shown in Exhibit "A" attached to this Second Amendment.
4.1.3 Remaining Site Improvement Costs. Temple shall pay (or
on demand reimburse Association for) the costs of the remaining site
improvements contemplated by paragraph 4.1, including the twenty-six (26) foot
wide access road from the proposed entry gate of the Buddhist Memorial Complex
to the Phase I and II sites (the "Temple access road"), and the other
improvements within the Site described in paragraph 4.1.1 above, up to a maximum
amount of six hundred fifty thousand dollars ($650,000.00) (see Exhibit "B" of
this Second Amendment for estimated cost breakdown).
4.1.4 Cost Overruns. In the event that the actual construction
costs for the improvements described in paragraph 4.1.3 above exceed the sum of
six hundred fifty thousand dollars ($650,000.00), the excess amount shall be
shared equally by Association and Temple. However, Association's share of the
excess amount shall not exceed the sum of five hundred thousand dollars
($500,000.00), regardless of the total overrun amount.
4.1.5 Payment of Remaining Site Improvement Costs. No
payment shall be required from Temple until such time as all required permits
for the construction of the Complex have been -- issued. Thereafter, payment
shall be made by Temple on a progress basis as the work specified in paragraph
4.1.3 is performed. Temple shall advance the entire of the construction costs,
including Association's share of the costs overruns. Association shall reimburse
Temple for Association's share of the cost overruns on or prior to the earlier
date of (a) Temple's exercise of its option to purchase the Adjacent Site
(paragraph 9.1 of Agreement), or (b) prior to the seventh (7th) anniversary date
of the original Agreement (March 1, 2001). Temple may offset the option price
against any unpaid cost overruns due from Association.
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4.1.6 Discretion for Temple to Cancel. In the event that the
estimated amount of the cost overruns described in paragraph 4.1.4 exceeds one
million dollars ($1,000,000.00), Temple shall have the right, within a period of
ten (10) business days following the date of receipt of the final costs
estimates, to cancel the Agreement in its entirety, and receive a refund of all
amounts advanced to Association pursuant to the terms of the Agreement".
3. Paragraph 4.7.3 of the Agreement is hereby amended
to read in full as follows:
"4.7.3 Restoration Costs. Temple shall deposit money in an
Association Trust Account for each stage of development of the Complex
sufficient to provide reasonable funds for restoring the Site to "finished lot"
status, as provided in Exhibit "F" attached to the Agreement. All funds
deposited shall be released back to Temple upon the completion of the
construction. However, if at the time a deposit is due Association is indebted
to Temple as a result of cost overruns pursuant to paragraph 4.1.4 of this
Second Amendment, the deposit need not be made, and instead, if the restoration
costs are actually incurred by Association, Association may offset the amount
against its indebtedness due to Temple."
4. Except as herein expressly amended, the Agreement and the
First Amendment to the Agreement dated September 1, 1994, shall remain in full
force and effect.
IN WITNESS WHEREOF the parties have executed this Second
Amendment as of the 15th day of March, 1995.
ROSE HILLS MEMORIAL PARK
ASSOCIATION,
a California nonprofit mutual
benefit corporation
By:
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Its:
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INTERNATIONAL BUDDHIST PROGRESS
SOCIETY, a California nonprofit
religious corporation
By:
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Its:
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