THIRD AMENDMENT TO
BUDDHIST MEMORIAL COMPLEX
DEVELOPMENT AND USE AGREEMENT
THIS THIRD 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, and by
the Second Amendment to Agreement dated March 15, 1995.
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 Third 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".
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 Third Amendment for location), such as paved access roads,
water, sewer (by septic tank), electrical
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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 4.1.1, 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 Third 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 Third 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. Temple may also offset the ten percent (10%) of gross
revenue payments provided for in paragraph 4.7.2(a) of the Agreement
against any unpaid costs overruns due from Association, commencing with
the first sale of niches by Temple and continuing until Temple has been
fully compensated for the cost overruns due from Association.
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
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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 Third 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. This Third Amendment supersedes the Second Amendment to Agreement
dated March 15, 1995, and replaces the Second Amendment in its entirety to the
same extent as if the Second Amendment had never been executed.
5. 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 Third Amendment as of
the 15th day of May, 1995.
INTERNATIONAL BUDDHIST ROSE HILLS MEMORIAL PARK
PROGRESS SOCIETY, a California ASSOCIATION, a California nonprofit
nonprofit corporation mutual benefit corporation
By: By:
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Its: Its:
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