DEVELOPMENT AND USE AGREEMENT
BUDDHIST MEMORIAL COMPLEX
IN
ROSE HILLS MEMORIAL PARK
WHITTIER, CALIFORNIA
TABLE OF CONTENTS
Page
I
RECITALS................................................... 1
1.1 Property................................................................................. 1
1.2 Memorial Complex......................................................................... 1
1.3 Adjacent Site............................................................................ 1
II
DEFINITIONS................................................. 1
2.1 General.................................................................................. 1
2.2 Architect................................................................................ 1
2.3 Applicable Law........................................................................... 2
2.4 Completion of Construction; Completion Date.............................................. 2
2.5 Construction Schedule.................................................................... 2
2.6 Contractor............................................................................... 2
2.7 Drawings & Specifications................................................................ 2
2.8 Event of Default......................................................................... 2
2.9 Work..................................................................................... 2
III
CONSTRUCTION COVENANTS............................................ 2
3.1 Time and Efforts......................................................................... 2
3.2 Force Majeure............................................................................ 3
3.3 Construction............................................................................. 3
3.4 Drawings and Specifications.............................................................. 3
3.5 Construction Information................................................................. 3
3.6 Inspections.............................................................................. 4
3.7 Liens and Stop Notices................................................................... 4
3.8 Delay.................................................................................... 5
3.8 Correction of Defects.................................................................... 5
IV
CONSTRUCTION OF THE COMPLEX......................................... 5
4.1 Condition of Site; Initial Site Improvements............................................. 5
4.2 Temple's Construction Responsibilities................................................... 5
4.2.1 General.................................................................................. 5
4.2.2 Compliance with Applicable Laws.......................................................... 6
4.3 Design of the Complex.................................................................... 6
4.3.1 Approval of Preliminary Plans and Specifications......................................... 6
4.3.2 Approval of Drawings and Specifications.................................................. 6
4.3.3 Approval of Changes...................................................................... 7
4.4 Resolution of Objections to Design....................................................... 7
4.5 Construction of the Complex.............................................................. 7
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4.5.1 Construction Documents................................................................... 7
4.5.2 Approval of the Construction Documents................................................... 7
4.5.3 Selection of General Contractor.......................................................... 8
4.5.4 Approval of the Contractor Agreement..................................................... 8
4.5.5 Approval of Changes...................................................................... 8
4.6 Government Approvals..................................................................... 8
4.7 Payment of Costs......................................................................... 9
4.7.1 Payment of Construction Costs............................................................ 9
4.7.2 Payment for Interment Rights............................................................. 9
4.7.3 Restoration Costs........................................................................ 9
4.7.4 Payment of Other Costs................................................................... 9
4.8 Notice of Nonresponsibility.............................................................. 9
4.9 Liens.................................................................................... 10
V
OWNERSHIP OF THE COMPLEX........................................... 10
5.1 Title.................................................................................... 10
5.2 Utilities................................................................................ 10
5.3 Taxes.................................................................................... 10
5.3.1 Real Property Taxes...................................................................... 10
5.3.2 Personal Property Taxes.................................................................. 10
VI
OWNERSHIP OF INTERMENT RIGHTS IN THE COMPLEX................................. 10
6.1 Exclusive Ownership Rights............................................................... 10
6.2 Certificate of Ownership................................................................. 10
6.3 Sales.................................................................................... 11
6.4 Donations................................................................................ 11
6.7 Recordkeeping............................................................................ 11
6.8 Employees................................................................................ 11
VII
USE OF TEE COMPLEX.............................................. 12
7.1 Rights to Use; Term...................................................................... 12
7.2 Use...................................................................................... 12
7.3 Conditions of Use........................................................................ 12
7.4 Access................................................................................... 12
7.5 Inurnments............................................................................... 12
7.6 Other Interments......................................................................... 12
7.7 Recordkeeping............................................................................ 13
7.8 Funeral Services......................................................................... 13
7.9 Liaison.................................................................................. 13
7.10 Employees................................................................................ 13
7.11 Quiet Possession......................................................................... 14
7.12 Rules and Regulations.................................................................... 14
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VIII
MAINTENANCE OF THE COMPLEX.......................................... 15
8.1 Association's Duties..................................................................... 15
8.2 Temple's Duties.......................................................................... 15
8.3 Failure to Perform Duties................................................................ 15
8.4 Alterations And Additions................................................................ 15
IX
OPTION CONCERNING ADJACENT SITE....................................... 16
9.1 Option to Acquire........................................................................ 16
9.2 Exercise of Option....................................................................... 16
9.3 Option Price............................................................................. 16
9.4 Revenue Sharing Upon Option Lapse........................................................ 16
9.5 Temporary Use of Adjacent Site........................................................... 16
9.6 Offsite Improvements..................................................................... 16
9.7 Construction of Addition to Complex...................................................... 16
9.8 Exclusive Interment and Use of Rights.................................................... 16
X
EVENTS OF DEFAULT.............................................. 17
10.1 Notification of Default.................................................................. 17
10.2 Events of Default........................................................................ 17
(a) Payment..................................................................... 17
(b) Representations and Warranties.............................................. 17
(c) Expiration of Permits....................................................... 17
(d) Encumbrances................................................................ 17
(e) Construction................................................................ 17
(f) Destruction of the Complex.................................................. 17
(g) Liens or Stop Notices....................................................... 17
(h) Bankruptcy.................................................................. 18
(i) Violation of Association Rules and
Regulations................................................................. 18
XI
RIGHTS UPON DEFAULT............................................. 18
11.1 Right to Cure............................................................................ 18
11.2 Legal and Equitable Relief............................................................... 18
11.3 Costs of Cure............................................................................ 18
11.4 Replacement of Temple.................................................................... 19
11.5 Cessation of Construction................................................................ 19
11.6 Estoppel Certificate..................................................................... 19
11.7 Termination.............................................................................. 19
11.8 Remedies Cumulative...................................................................... 19
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XII
INDEMNITY AND INSURANCE........................................... 20
12.1 Indemnity................................................................................ 20
12.2 Insurance................................................................................ 20
12.3 Liability Insurance...................................................................... 20
12.4 Certificates of Insurance................................................................ 21
XIII
REPRESENTATIONS AND WARRANTIES........................................ 21
13.1 By Temple................................................................................ 21
13.1.1 Workmanlike Construction................................................................. 21
13.1.2 Organization of Temple................................................................... 21
13.1.3 Authorization Relative to this Agreement................................................. 21
13.2 Term..................................................................................... 22
13.3 Assignment of Other Warranties........................................................... 22
13.4 By Association........................................................................... 22
XIV
NOTICES................................................... 22
14.1 Addresses................................................................................ 22
14.2 Receipt.................................................................................. 23
XV
DISPUTE RESOLUTION.............................................. 23
15.1 Mandatory Arbitration.................................................................... 23
15.2 Selection of Arbitrators................................................................. 23
15.3 Rules of Arbitration..................................................................... 23
15.4 Allocation of Costs...................................................................... 23
15.5 Commencement of Arbitration.............................................................. 23
15.6 Counsel.................................................................................. 23
15.7 Ex Parte Contacts........................................................................ 23
15.8 Decisions................................................................................ 23
15.9 Applicable Law and Procedure............................................................. 24
15.10 Experts and Consultants.................................................................. 24
XVI
MISCELLANEOUS PROVISIONS........................................... 24
16.1 Compliance with Law...................................................................... 24
16.2 Binding Effect........................................................................... 24
16.3 Consent.................................................................................. 24
16.4 Remedies................................................................................. 24
16.5 Non-Waiver............................................................................... 24
16.6 Attorneys' Fees.......................................................................... 24
16.7 Gender and Number........................................................................ 25
16.8 Entire Agreement......................................................................... 25
16.9 Captions................................................................................. 25
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16.10 Governing Law............................................................................ 25
16.11 Partial Invalidity....................................................................... 25
16.12 Amendments............................................................................... 25
16.13 Counterparts............................................................................. 25
16.14 Time of Essence.......................................................................... 25
16.15 Negation of Partnership.................................................................. 25
16.16 Designated Representatives............................................................... 25
16.17 Assignment............................................................................... 26
16.18 Claims................................................................................... 26
16.19 Memorandum of Agreement.................................................................. 26
-v-
BUDDHIST MEMORIAL COMPLEX
DEVELOPMENT AND USE AGREEMENT
BETWEEN
ROSE HILLS MEMORIAL PARK ASSOCIATION
AND
INTERNATIONAL BUDDHIST PROGRESS SOCIETY
DATED
MARCH 1, 1994
BUDDHIST MEMORIAL COMPLEX
DEVELOPMENT AND USE AGREEMENT
This BUDDHIST MEMORIAL COMPLEX DEVELOPMENT AND USE AGREEMENT
(The "Agreement") is made and entered into as of 1st day of March, 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"). For good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as set forth in this Agreement.
I
RECITALS
1.1 Property. Association is the owner of those certain
premises (the "Property") consisting of the real property described in Exhibit
"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").
1.2 Memorial Complex. Temple and Association desire to
memorialize their agreement regarding the construction and future use of the
Buddhist Memorial Complex on the Site. The development, construction and use of
the Buddhist Memorial Complex are governed by this Agreement. The concept
drawings with respect to the Complex that have been prepared as of the date of
this Agreement are attached hereto as Exhibit "B".
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 "C" attached hereto.
II
DEFINITIONS
2.1 General. Unless otherwise stated, words and phrases used
herein having a particular meaning under Division 7 of the California Health &
Safety Code (Sections 7000 et seq.) shall have that meaning. Otherwise,
capitalized terms used herein have the meanings specified in this Article II or
elsewhere in this Agreement.
2.2 Architect. The primary architect to be employed or used in
connection with the planning and constructing of the Complex, to be selected by
Temple with the approval of Association.
2
2.3 Applicable Law. All building codes, zoning ordinances,
laws, statutes, orders, writs, ordinances, rules and regulations of any federal,
state, county or city, or if any division, agency bureau, court, commission or
department thereof, or of any public officer or official, having jurisdiction
over or with respect to the Property. This includes, but is not limited to, the
Private and Community Mausoleum and Columbarium Law, California Health & Safety
Code Sections 9501 et seq., as amended.
2.4 Completion of Construction; Completion Date. The
construction of the Complex shall be deemed to be completed after the Architect
issues its certificate of substantial completion for the Complex (the
"Completion of Construction"). The "Completion Date" shall be the date on which
the certificate of occupancy is issued, or the date the Architect issues such
Certificate, whichever is earlier.
2.5 Construction Schedule. A construction progress schedule,
in a form acceptable to Association, showing the progress of construction and
the projected sequencing and completion time for uncompleted work, all as of the
date of such schedule, together with such updates thereof as Association may
request.
2.6 Contractor. Each contractor, subcontractor and
supplier of materials and services (excluding the Architect) to
be employed or used in connection with the construction of the
Complex.
2.7 Drawings & Specifications: The final plans and
specifications for construction of the Complex, prepared by the Architect and
approved as required herein, as the same may be amended in accordance with this
Agreement, all as contemplated by Paragraph 4.3.2.
2.8 Event of Default. Any one of the events of default
specified in Article X.
2.9 Work. The performance of the planning, design,
construction management, construction, installation, administration, and all
other services required by this Agreement, whether completed or partially
completed, in connection with the development, design and construction of the
Complex and shall include all labor, materials, equipment and services provided
or to be provided by either Temple or any contractor to fulfill its obligations
hereunder.
III
CONSTRUCTION COVENANTS
3.1 Time and Efforts. Temple shall devote, and shall cause
the Contractors to devote, such time, effort and skill to
3
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 and one-half years from the execution
of this Agreement. Association shall promptly perform its obligations under this
Agreement so as not to prevent Temple's timely construction of the Complex.
3.2 Force Majeure. Notwithstanding the provisions of Paragraph
3.1, the time set forth for the completion of the Complex under this Agreement
shall be extended for such additional periods of time as Temple's performance is
prevented or reasonably delayed due to strikes, lockouts, unavailability of
materials, acts of governmental agencies, acts of God, riots, civil
insurrection, abnormal force of elements or any other similar event that is
beyond the control of Temple; provided, however, that in no event shall any
extension be deemed to have occurred unless Temple shall have given notice to
Association, within twenty-five (25) days after the occurrence of the event,
setting forth the facts giving rise to the extension. Temple shall give prompt
written notice to Association of the cessation of the event or condition giving
rise to such delay.
3.3 Construction. Temple shall cause the Complex to be
constructed in a good and workmanlike manner according to the Drawings and
Specifications and the recommendation of any soils or engineering reports
prepared in connection with the construction or financing of the Complex. In
causing the construction of the Complex, Temple shall comply with all Applicable
Laws. If necessary, the Drawings and Specifications shall be modified to comply
with the Applicable Laws, subject to the provisions of Paragraph 4.4.3.
3.4 Drawings and Specifications. There shall be no material
change, amendment or modification of the Drawings and Specifications without the
prior approval of Association as provided in Paragraph 4.3.3.
3.5 Construction Information. Association shall have the
right to obtain information regarding the construction of the Complex, and to
take action with respect thereto, as follows:
3.5.1 From time to time, and within ten (10) days
after receipt from Association of a request therefor, Temple
shall deliver to Association (a) a list of Contractors,
stating the name, address, and telephone number or each
Contractor, the dollar amount of each contract and
subcontract, and the portion thereof paid through the date of
such list, together with copies of
4
each contract and subcontract identified therein and all
amendments thereto, (b) a Construction Schedule and (c) with
respect to any item designated above that has been previously
delivered, such updates thereof as Association may request.
3.5.2 Association is expressly authorized to contact
any Contractor, and at all reasonable times to enter the
Property and inspect the Complex and Work of construction, in
order to verify information disclosed pursuant to this
paragraph or for any other purpose related to Association's
interests.
3.6 Inspections. Temple shall permit Association to make
inspections and to obtain other information related to the Complex, as follows:
3.6.1 Association shall have the right at all
reasonable times to enter upon the Property, to inspect the
Complex and all materials to be used in the construction
thereof, and to examine the Drawings and Specifications and
all shop drawings that may be kept at the construction site.
Temple shall cooperate with Association and shall cause the
Contractors to cooperate with Association toward that end.
3.6.2 Association is under no duty to supervise or to
inspect the Work of construction or any books, record or other
documents. Association's failure to inspect, discover or
disclose any information available to Association in
connection with any such inspection shall not constitute a
waiver of any of Association's rights hereunder. Association's
inspection not followed by notice of an Event of Default shall
not constitute a waiver of any Event of Default then existing.
Any such inspection by Association shall be for the sole
purpose of protecting the Property of Association, and shall
in no way be construed as a representation, warranty or
acknowledgement by Association that there has been or will be
compliance with the Drawings and Specifications or that
construction is or will be free from faulty materials or
workmanship.
3.7 Liens and Stop Notices. If any claim of lien is recorded
that affects the Property or Complex or a bonded stop notice is served upon
Temple that affects the Property or Complex, Temple shall, within twenty (20)
days after such recording or service, or within five (5) days after
Association's demand, whichever first occurs, (a) pay and discharge the same,
(b) effect the release thereof by recording and delivering to Association a
surety bond in form and amount satisfactory to Association or (c) provide
Association with other assurance that Association, in its sole discretion, deems
to be satisfactory for
5
the payment of such lien or bonded stop notice and for the full and continuous
protection of Association from the effect thereof.
3.8 Delay. Temple shall promptly notify Association in writing
of any event causing delay or interruption of the construction or its timely
completion. The notice shall specify the particular work delayed, and the cause
and expected period of each delay.
3.8 Correction of Defects. Upon demand by Association, Temple
shall correct any defect in the Complex or any departure from the Drawings and
Specifications not approved by Association.
IV
CONSTRUCTION OF THE COMPLEX
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," including without limitation, all
required on-site and off-site improvements (see Exhibit "D" for location) such
as paved access roads (at least 24 feet wide), 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. Temple
shall pay (or on demand reimburse Association for) the cost of site improvements
contemplated by this Paragraph 4.1 up to a maximum amount of six hundred fifty
thousand dollars ($650,000.00) (see Exhibit "E" for estimated cost breakdown).
No payment shall be required until such time as all required permits for the
construction of the Complex have been issued. Thereafter, payment shall be made
on a progress basis as the work specified in this paragraph 4.1 is performed.
4.2 Temple's Construction Responsibilities.
4.2.1 General. Subject to the terms and conditions of
this Agreement, Temple agrees (a) to provide a construction
manager, the Architect and a "General Contractor" (as defined
in Paragraph 4.5.3) for the construction of the Complex, (b)
to cause the prime Contractor and the Architect to provide all
planning, labor, materials and equipment, and to do all other
things, necessary for the proper construction and lien-free
completion of the Work involved in constructing the Complex
and (c) to administer the same in accordance with the
requirements of this Agreement. The Work shall be accomplished
pursuant to the Drawings and Specifications approved by the
Association, the Architect and Temple, in the manner described
in Paragraphs 4.3.2 and 4.4.
6
4.2.2 Compliance with Applicable Laws. In overseeing
the Work, Temple shall use its best efforts to comply, and
shall cause its agents and Contractors to comply, with all
Applicable Laws and lawful orders of any public authority
having jurisdiction over the Complex or any portion thereof.
Temple shall use its best efforts to cause to be erected and
maintained, as required by existing conditions and progress of
the Work, all necessary safeguards for safety and protection,
including posting danger signs and other warnings against
hazards, promulgating safety regulations, and notifying owners
and users of properties adjacent to the Property. When the use
or storage of hazardous materials or equipment is necessary
for the execution of the Work, Temple shall use its best
efforts to cause the Contractor to exercise the utmost care
and to carry on such activities under the supervision of
properly qualified personnel. Temple shall provide, or cause
its agents to provide, security fencing (or such other
security measures as Temple deems necessary or appropriate in
its reasonable discretion) to exclude trespassers, vandals and
thieves.
4.3 Design of the Complex.
4.3.1 Approval of Preliminary Plans and
Specifications. As expeditiously as possible, Temple shall
cause to be prepared and delivered to Association preliminary
plans and specifications for the Complex. Association, acting
through its "Designated Representative," as defined in
Paragraph 16.16, shall have the right to reasonably approve
such preliminary plans and specifications for the Complex, or
to deliver to Temple its specific objections to such
preliminary plans and Specifications, together with its
proposed solution to each objection. If Association fails to
approve or object to any preliminary plans and specifications
within fifteen (15) days after such preliminary plans and
specifications are delivered to Association, then Association
shall be deemed to have approved such preliminary plans and
specifications. Temple, Association and the Architect shall
cooperate in good faith to resolve any objections as
expeditiously as possible.
4.3.2 Approval of Drawings and Specifications. As
expeditiously as possible following the approval of the
preliminary plans and specifications for each component of the
Complex, Temple shall cause to be prepared and delivered to
Association copies of final plans, specifications and working
drawings (based on the approved preliminary plans) covering
the construction of the Complex (collectively, the "Drawings
and
7
Specifications"). Association shall have the right to
reasonably approve the Drawings and Specifications or deliver
to Temple its specific objections to them, together with its
proposed solution to each objection. If Association fails to
approve or object to any Drawings and Specifications within
fifteen (15) days after such Drawings and Specifications are
delivered to Association, then Association shall be deemed to
have approved of such Drawings and Specifications.
4.3.3 Approval of Changes. After the Drawings and
Specifications have been approved, Association shall have the
right to reasonably approve any material additions, deletions
or other modifications made to the Drawings and Specifications
or deliver to Temple its specific objections to such
modifications, together with its proposed solution to each
objection. If Association fails to approve or object to any
such modifications to the Drawings and Specifications within
seven (7) business days after such modifications are delivered
to Association, then Association, shall be deemed to have
approved such modifications. Any objections to such
modifications not resolved cooperatively by the parties shall
be resolved in accordance with the provisions of Paragraph
4.4.
4.4 Resolution of Objections to Design. If any objections are
made by Association to the Drawings and Specifications or any modification
thereto, and such objections are not resolved cooperatively by Association,
Temple and the Architect within fifteen (15) days after the last day for making
such objections as provided in Paragraph 4.3.2 or Paragraph 4.3.3, as the case
may be, then the Architect shall determine a resolution that shall be binding
upon Association and Temple.
4.5 Construction of the Complex.
4.5.1 Construction Documents. As expeditiously as
possible following the approval of the Drawings and
Specifications, Temple shall cause detailed construction
documents, as defined in AIA Standard Form Document No. B-141,
for the Complex (the "Construction Documents") to be prepared
by the Architect as a logical evolution of the Drawings and
Specifications and delivered to Association.
4.5.2 Approval of the Construction Documents.
Association shall have the right to reasonably approve the
Construction Documents or deliver to Temple its specific
objections to such Construction Documents, together with its
proposed solution to each objection. If Association fails to
approve or object to the Construction Documents within fifteen
(15) business days after the Construction Documents are
delivered,
8
then Association shall be deemed to have approved the
Construction Documents. If any objections are made by
Association to the Construction Documents, and such objections
are not resolved cooperatively by Association, Temple and the
Architect within fifteen (15) days after the last day for
making such objections as provided above, then the Architect
shall determine a resolution that shall be binding upon
Association and Temple.
4.5.3 Selection of General Contractor. As
expeditiously as possible following the approval of the
Construction Documents, Temple shall bid the same and enter
into an agreement (the "Contractor Agreement") for the
construction of the Complex with a licensed general contractor
(the "General Contractor"). The contract need not be awarded
to the lowest bidder, the parties being agreed that Temple may
consider other relevant factors in addition to price, such as
the experience and financial strength of the Contractor. The
Contractor Agreement shall be a cost-of-the-work, with a
guaranteed maximum, for a contract. Temple shall deliver to
Association a copy of the Contractor Agreement within a
reasonable time thereafter.
4.5.4 Approval of the Contractor Agreement.
Association shall have the right to reasonably approve the
Contractor Agreement or deliver to Temple its specific
objections to the Contractor Agreement, together with its
proposed solution to each objection. If Association fails to
approve or object to the Contractor Agreement within fifteen
(15) business days after it is delivered, then Association
shall be deemed to have approved the Contractor Agreement. If
any objections are made by Association to the Contractor
Agreement and such objections are not resolved cooperatively
by Association, Temple and the Architect within fifteen (15)
days after the last day for making such objections as provided
above, then the Architect shall determine a resolution that
shall be binding upon Association and Temple.
4.5.5 Approval of Changes. Once approved, neither the
identity of the General Contractor, the provisions of the
Contractor Agreement nor the provisions of the Construction
Documents shall be changed without the prior written consent
of the Association, which consent shall not be unreasonably
withheld.
4.6 Government Approvals. As expeditiously as possible,
Association shall process and obtain all licenses, permits, approvals or other
governmental authorizations that may be required for the performance of the
Work. This includes, but is not limited to, those required by the Private and
Community
9
Mausoleum and Columbarium Law, California Health & Safety Code Sections 9501 et
seq. The Temple shall be responsible for all costs of obtaining same, except the
labor cost of Association personnel.
4.7 Payment of Costs.
4.7.1 Payment of Construction Costs. Temple shall pay
all costs relating to the Work on the Complex. As provided in
Paragraph 4.1, Temple also shall contribute to costs required
for the related infrastructure including, but not limited to,
road and bridge improvements, sewer, water and power lines,
street lighting, landscaping, and installation of the foliage
screen between the Property and adjacent residential areas, up
to the sum of six hundred fifty thousand dollars
($650,000.00).
4.7.2 Payment for Interment Rights. Temple shall pay
Association eight hundred seventy-five thousand dollars
($875,000.00) for all interment rights associated with the
Site. Of this sum, Temple shall pay Association one hundred
thousand dollars (S100,000.00) upon the execution of this
Agreement. The balance of seven hundred seventy-five thousand
dollars ($775,000.00) shall be paid, without interest, as
follows:
(a) Subject to Paragraph 4.7.2(b), Temple shall pay
Association ten percent (10%) of gross revenue received by
Temple from the sale of niches in the Complex, commencing with
the Completion Date and completion of the first sale of a
niche.
(b) If any balance shall be outstanding on the
seventh (7th) anniversary of the Completion Date, such amount
shall be paid in full on January 1, 2003.
4.7.3 Restoration Costs. Temple shall deposit moneys
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 hereto. All funds deposited shall be
released back to Temple upon the completion of construction.
4.7.4 Payment of Other Costs. Association shall
not be responsible for any costs related to Work or
Complex unless otherwise provided herein.
4.8 Notice of Nonresponsibility. Association shall post and
record a Notice of Nonresponsibility, in the manner provided in Civil Code
Section 3094.
10
4.9 Liens. Temple shall promptly notify Association of any
liens, claim of lien, encumbrance or charge placed or filed upon or against the
Complex, any part thereof or the income therefrom, of which Temple has
knowledge.
V
OWNERSHIP OF THE COMPLEX
5.1 Title. Fee title to the Property shall be held solely in
the Association's name and Temple shall have no interest therein, except as
otherwise provided in this Agreement. The Property includes all structures
within the Complex and all improvements to and on the Site.
5.2 Utilities. Temple shall pay for all water, sewer, gas,
heat, electricity, telephone, air conditioning and other utilities and services
supplied to the Complex. Whenever reasonably practical in the circumstances,
Association and Temple will arrange for direct, separate metering of such
utilities as delivered to the Complex.
5.3 Taxes.
5.3.1 Real Property Taxes. Association shall pay
prior to delinquency all real property taxes, if applicable,
with respect to the Property. As used herein, the term "real
property taxes" shall include any form of real estate tax
(other than inheritance, income or estate taxes) imposed on
the Property as against any legal or equitable interest of
Association in the Property.
5.3.2 Personal Property Taxes. Temple shall pay prior
to delinquency all taxes assessed against and levied upon
trade fixtures, furnishings, equipment and all other personal
property of Temple contained in the Complex, if applicable.
VI
OWNERSHIP OF INTERMENT RIGHTS IN THE COMPLEX
6.1 Exclusive Ownership Rights. Temple shall have the
exclusive ownership of all interment rights associated with the Site, including
the right to resell niches 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.
6.2 Certificate of Ownership. Association and Temple shall
jointly issue and deliver a Certificate of Ownership to the
11
purchaser of each niche within the Complex, substantially in the same form as
Exhibit "I" attached hereto.
6.3 Sales. In addition to payments under Paragraph 4.7.2(a),
Temple shall pay Association the following amounts as revenue from the sale of
niches is received by Temple:
(a) With respect to the first five thousand
(5,000) niches in the Complex sold, seventy-five
dollars ($75.00) per niche.
(b) Thereafter, fifty dollars ($50.00) per niche.
6.4 Donations. Temple will be permitted to donate up to thirty
(30) niches each year to "needy" families. Such determination shall be within
Temple's sole discretion. Association will not receive a fee for any niche so
donated.
6.5 Endowment Fund. Association shall establish a Special Care
Fund within its irrevocable Endowment Care Fund in accordance with the
provisions of the California Health and Safety Code Sections 8725 et seq. (the
"Fund") for the exclusive benefit of the Complex. For each niche sold, at the
time of sale 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 niches.
6.6 Accounting. Temple shall render to Association quarterly
statements of the number of niches sold or donated, in a form acceptable to
Association. The statement shall be delivered to Association within twenty (20)
days after the end of each calendar quarter. Temple also shall deliver to
Association annual sales reports with respect to the Complex, in form and
substance acceptable to Association, within ninety (90) days after the end of
each calendar year during which this Agreement is in effect.
6.7 Recordkeeping. Temple shall establish, maintain and
supervise at the Complex such full and accurate bookkeeping and other
recordkeeping as shall be necessary to allow Association to audit such books and
records and to provide Association information necessary in order for
Association to keep such books and accounts as required by Applicable Law.
Association shall have the right to inspect such records and audit the
statements required by Paragraph 6.6 during Association's operating hours. Such
proper records shall be kept for a period of ten (10) years after the
termination of this Agreement or a full and accurate Copy of such records shall
be provided to Association.
6.8 Employees. Temple shall select, hire, pay, discharge,
direct and supervise all employees necessary to the efficient marketing of
niches within the Complex, in accordance
12
herewith. None of such employees shall be on Association's payroll, and
Association shall not be liable to such employees for their wages or other
compensation. Temple will, in the hiring of such employees, use care to select
qualified, competent and trustworthy personnel. Temple shall procure and
maintain adequate worker's compensation, disability and other insurance and
fringe benefits, as may be customary or as may be required by Applicable Law, in
the name of and at the expense of Temple, covering all of the aforesaid
employees.
VII
USE OF TEE COMPLEX
7.1 Rights to Use; Term. In consideration of the performance
of this Agreement and of the construction of the Complex by Temple, upon the
Completion Date, and until or unless this Agreement is terminated pursuant to
paragraph 11.7, Temple shall have the exclusive right to use the Complex for the
purposes herein designated. 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.
7.2 Use. The Complex shall be used and occupied only for a
columbarium and any other uses that are reasonably related or comparable
thereto, including religious ceremonies, and for no other purpose. Temple shall
not use or permit the use of the Complex in any manner that will tend to create
waste or a nuisance. Association and Temple shall cooperate in scheduling of the
use of Association's assembly hall and chapel located outside of the Complex,
which Temple shall have the non-exclusive right to use as needed.
7.3 Conditions of Use. The Complex and its use are governed by
the provisions of this Agreement as well as any reasonable rules and regulations
promulgated by Association. The parties anticipate that the Complex will include
a small assembly hall/chapel and pagoda.
7.4 Access. Temple will maintain and permit reasonable public
access to public areas within the Complex during the Association's hours of
operation. Association and Association's agents shall have the right to enter
the Complex (including any non-public areas) at any reasonable time for the
purposes of inspecting the same.
7.5 Inurnments. Temple shall have the exclusive right to
perform all inurnments within the Complex.
7.6 Other Interments. Temple shall not compete with the
Association by developing and selling burial property, other than niches within
the Complex. However, Temple shall have the
13
right of entombment and ground burial for property specifically purchased from
Association for such purposes outside the Property but including the Adjacent
Site. Temple exclusively will support and promote the memorial and burial
services of the Association. Association shall not sell any property within the
Memorial Park to any individual or organization other than Temple, for the
purpose of developing projects similar to the Complex, for a period of seven (7)
years following the execution of this Agreement.
7.7 Recordkeeping. Temple shall establish, maintain and
supervise at the Complex upon forms provided by Association, such full and
accurate bookkeeping and recordkeeping as shall be necessary to provide
Association information necessary in order for Association to keep such books
and accounts as required by Applicable Law. This includes, but is not limited
to, a record of the interment of remains and the inurement of ashes in the
Complex, in each case stating the name of each deceased person, place of death,
date of interment or inurement and name and address of the funeral director
(collectively, the "Interment Information"). Temple shall provide the relevant
Interment Information to Association within twenty-four (24) hours of any
interment performed within the Complex or on the Property. Association shall
have the right to inspect such records during Association's operating hours.
Such proper records shall be kept for a period of ten (10) years after the
termination of this Agreement or a full and accurate copy of such records shall
be provided to Association.
7.8 Funeral Services. Temple will not engage in general
funeral services, including, without limitation, care of human remains, body
preparation, embalming, dressing, cosmeticizing, casketing, cremation, or casket
or urn sales. Temple will not compete with Rose Hills Mortuary, L.P., doing
business as Rose Hills Company, by providing funeral services through any
mortuary other than the Rose Hills Mortuary. Temple exclusively will support and
promote the mortuary services of the Rose Hills Mortuary. Notwithstanding the
foregoing, Temple may conduct religious funeral ceremonies and receptions, and
may provide urns to the purchasers of niches. Family members and/or niche owners
may also provide their own urns.
7.9 Liaison. Both Temple and Association will designate a
liaison responsible for coordinating with, and reporting to, the other party.
7.10 Employees. Temple shall select, hire, pay, discharge,
direct and supervise all employees necessary to the efficient operation and
daily maintenance of the Complex, in accordance herewith. None of such employees
shall be on Association's payroll, and Association shall not be liable to such
employees for their wages or other compensation. Temple will, in the hiring of
such employees, use care to select qualified, competent and trustworthy
personnel. Temple shall
14
procure and maintain adequate worker's compensation, disability and other
insurance and fringe benefits, as may be customary or as may be required by
Applicable Law, in the name of and at the expense of Temple, covering all of the
aforesaid employees.
7.11 Quiet Possession. Upon Temple observing and performing
all of the covenants, conditions and provisions on Temple's part to be observed
and performed hereunder, Temple shall have quiet possession of the Complex
subject to all of the provisions of this Agreement.
7.12 Rules and Regulations. Temple agrees that it will abide
by, keep and observe all reasonable rules and regulations that the Association
may make from time to time for the management, safety, care and cleanliness of
the Complex, the parking of vehicles and the preservation of good order therein
as well as for the convenience of other users of the Memorial Park.
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VIII
MAINTENANCE OF THE COMPLEX
8.1 Association's Duties. Association shall be responsible for
the long-term maintenance of the Complex and the costs associated therewith.
Such maintenance includes all alterations, major repairs, decorations,
replacements, equipment and installations necessary to maintain the Property in
a clean, safe and orderly condition. Association's obligations hereunder are
more fully described in Exhibit "G. Association shall have the right to enter
the Complex (including any non-public areas) at any reasonable time (including,
as necessary, after-hours) for purposes of performing Association's duties under
this Paragraph 8.1.
8.2 Temple's Duties. Temple shall be responsible for the daily
upkeep of the Complex and the costs associated therewith. Such upkeep includes
all reasonable janitorial services necessary to maintain the Complex in a clean,
safe and orderly condition. Temple's obligations hereunder are more fully
described in Exhibit "H".
8.3 Failure to Perform Duties. If Temple fails to perform its
obligations under this Article VIII, Association may at Association's option
enter upon the Property after reasonable notice to Temple (except in the case of
an emergency, in which case no notice shall be required), perform such
obligations on Temple's behalf and put the Complex in good order, condition and
repair, and the cost thereof together with interest thereon at the maximum rate
then allowable by law shall be due and payable to Association on demand. If
Association fails to perform its obligations under this Article VIII, Temple may
perform such obligations on Association's behalf and put the Complex in good
order, condition and repair, and the cost thereof together with interest thereon
at the maximum rate then allowable by law shall be due and payable to Temple on
demand.
8.4 Alterations And Additions. Temple shall not, without
Association's prior written consent, which shall not be unreasonably withheld,
make any alterations, improvements or additions in, on or about the Complex,
except for nonstructural alterations the costs of which will not exceed five
thousand dollars ($5,000.00). If Association shall give its consent, the consent
shall be deemed conditioned upon Temple's acquiring a permit to do so from
appropriate governmental agencies, the furnishing of a copy thereof to
Association prior to the commencement of the work and the compliance by Temple
of all conditions of said permit in a prompt and expeditious manner. All
alterations, improvements and additions that may be made to the Complex shall
become the property of the Association. Notwithstanding the foregoing, Temple's
trade fixtures that are affixed to the Property so that they can be removed
without
16
material damage to the property shall remain the property of Temple and may be
removed by Temple.
IX
OPTION CONCERNING ADJACENT SITE
9.1 Option to Acquire. For a period of seven (7) years
following the execution of this Agreement, Temple shall have the option (the
"Option") to acquire all, but not part, of the exclusive interment and use
rights within the Adjacent Site.
The Option may be exercised only in full.
9.2 Exercise of Option. Temple shall exercise the Option by
Notice of Association on or prior to the expiration of the Option as provided in
Paragraph 9.1
9.3 Option Price. The purchase price for the exclusive
interment and use rights shall be two million dollars ($2,000,000.00), payable
in immediately available funds at the closing of the Option's exercise. Such
closing shall occur no later than thirty (30) days following the Option's
exercise.
9.4 Revenue Sharing Upon Option Lapse. If the Option is not
exercised by Temple prior to the seventh (7th) anniversary of the execution of
this Agreement, Temple shall have the right to share in ten percent (10%) of the
gross revenues received by Association from the sale of finished burial lots
within the Adjacent Site, until such time as all lots within the Site have been
sold.
9.5 Temporary Use of Adjacent Site. Prior to the exercise or
lapse of the Option, but not following either, Temple shall have the right to
use the Adjacent Site for temporary parking for visitors to the Complex.
9.6 Offsite Improvements. The cost to deliver the Adjacent
Site to Temple as a "finished lot" (as defined in paragraph 4.1) shall be paid
by Association. Construction shall commence concurrent with the closing of the
Option's exercise.
9.7 Construction of Addition to Complex. After the closing of
the Option's exercise, Temple shall construct on the Adjacent Site an addition
to the Complex, at Temple's expense, in the same manner provided for in Articles
III and IV.
9.8 Exclusive Interment and Use of Rights. After the closing
of the Option's exercise Temple shall own the exclusive Interment rights
associated with the Adjacent Site and shall have the exclusive use of the
Adjacent Site, in the same manner as is provided for in Articles V, VI, VII and
VIII. No additional fees or costs shall be payable upon the sale of niches by
Temple, except the Endowment Fee provided for in paragraph 6.5.
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X
EVENTS OF DEFAULT
10.1 Notification of Default. Temple shall promptly notify
Association in writing of the occurrence of any Event of Default as defined in
this Agreement, or of any facts then in existence that could become an Event of
Default upon the giving of notice or the lapse of time or both.
10.2 Events of Default. Each of the following events shall
constitute an Event of Default hereunder:
(a) Payment. Temple's failure to pay when due
any sum payable under Paragraphs 4.6, 4.7.1, 4.7.2,
4.7.3, 6.3. 6.5, 8.3, 9.7 or 12.4.
(b) Representations and Warranties. The failure of
any of either party's representations or warranties contained
herein, if such failure continues for a period of ten (10)
days after written notice of non-defaulting party to the
defaulting party of such failure.
(c) Expiration of Permits. Temple's neglect, failure
or refusal to keep in full force and effect any permit,
license, consent or approval with respect to the construction
or use of the Complex.
(d) Encumbrances. The imposition, voluntarily or
involuntarily, of any lien or encumbrance upon Association's
interest in the Property without Association's written
consent, unless an adequate bond is provided and such lien is
released within thirty (301 days after the imposition thereof.
(e) Construction. Any material deviation in the work
of construction from the Drawings and Specifications, or the
appearance or use of defective workmanship or materials in the
construction of the Complex, if Temple fails to remedy the
same to Association's satisfaction within ten (10) days after
Association's written demand to do so, or the cessation of
construction of the Complex prior to completion for a
continuous period of more than fifteen (15) days.
(f) Destruction of the Complex. The demolition,
destruction or substantial damage of the Complex, if
Association determines, with the concurrence of Temple, that
the Complex cannot be restored or rebuilt within a reasonable
time.
(g) Liens or Stop Notices. The filing of any
lien against the Association's interest in the property
18
or Complex, or the service of any bond notice, if the claim of
lien or bonded stop notice continues for thirty (30) days
without discharge, satisfaction or the making of provision for
payment to the satisfaction of Association.
(h) Bankruptcy. Temple's making a general assignment
for the benefit of its creditors for the purpose of effecting
a moratorium upon or extension or composition of its debts, or
commencing any bankruptcy, insolvency or other proceeding
under federal or state law for the relief of debtors, or
failing to obtain a dismissal, within ninety (90) days after
the commencement thereof, of any such proceeding instituted
against it by one or more third parties.
(i) Violation of Association Rules and
Regulations. The material violation of any reasonable
applicable rules and regulations promulgated by Association.
XI
RIGHTS UPON DEFAULT
11.1 Right to Cure. In the event that either party defaults in
the performance of any of its obligations under this Agreement, the other party
shall have the right, but not the obligation, upon ten (10) days' written notice
to the defaulting party, to cure such default for the account and at the expense
of the defaulting party. To effectuate any such cure, the curing party shall
have the right to enter upon the Property to perform any necessary Work or
furnish any necessary materials or services to cure such default.
11.2 Legal and Equitable Relief. In the event of default or
breach by either party under this Agreement, the non-defaulting party or
non-breaching party shall have the right to institute and prosecute any
proceedings at law or in equity against the defaulting or breaching party in
order to prevent the defaulting or breaching or party from breaching or
attempting to breach the provisions of this Agreement and to recover damages for
any such default or breach. The remedies available under this Paragraph 11.2
shall include, without limitation, ex parte applications for temporary
restraining orders, preliminary injunctions and permanent injunctions enjoining
any such default or attempted default, actions for specific performance and
actions for damages for breach of this Agreement.
11.3 Costs of Cure. All costs and expenses incurred by a party
to cure the default of the other party under the provisions of Paragraph 11.1,
together with interest thereon, and all costs and expenses of any proceeding at
law or in equity, including reasonable attorneys' fees awarded to any party by
an
19
order of court pursuant to paragraph 11.2, shall be assessed against and paid by
the defaulting party.
11.4 Replacement of Temple. In the event that Temple
materially defaults in the performance of its obligations under this Agreement,
as defined in Article X, and fails to cure such default within thirty (30) days
after its receipt of written notice from the Association specifying the default
(or if the nature of the default is such that more than thirty (30) days are
reasonably required for its cure, then if Temple fails either (i) to commence to
cure such default within the such thirty (30) day period or (ii) thereafter to
diligently prosecute such cure to completion), then in either such event Temple
may be replaced by another person or entity selected by Association, upon such
terms as may be equitable to Temple (including making Temple whole financially,
less any damages owing to Association), and Temple shall have no further
interest in the Property and Complex and no further claim against Association.
11.5 Cessation of Construction. If Association determines that
the Complex is not being constructed in accordance with the Drawings and
Specifications, Applicable Law or this Agreement, Association may order all
construction on the Complex affected by the condition of nonconformance
immediately stopped. After such an order, Temple shall not allow any
construction work, other than corrective work, to be performed on any portion of
the Complex affected by the condition of nonconformance until Association
notifies Temple in writing that the nonconforming condition has been corrected.
11.6 Estoppel Certificate. Any party may, at any time and from
time to time, deliver written notice to the other party requesting such party to
execute certificates certifying that, to the best knowledge of the certifying
party, the requesting party is not in default in the performance of its
obligations under this Agreement, or, if in default, to describe the nature and
amount of any and all such defaults. Any party receiving such a request shall
execute and return its certificate within thirty (30) days following the receipt
thereof. Failure by a party to execute and return such a certificate within the
specified period shall be deemed an admission on such party's part that the
party requesting the certificate is current and not in default in the
performance of its obligations under this Agreement.
11.7 Termination. Upon the occurrence of the events described
in Paragraph 11.4, Association shall have the option of terminating this
Agreement.
11.8 Remedies Cumulative. All of the remedies permitted or
available to the parties under this Article XI shall be cumulative.
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XII
INDEMNITY AND INSURANCE
12.1 Indemnity. Except as otherwise covered by insurance,
Temple shall indemnify, defend and hold Association and Association's agents,
trustees, officers, employees and representatives free and harmless from any and
all claims, demands, causes of action, loss, injuries and liabilities in law or
in equity, of every kind and nature whatsoever, including but not limited to the
death or injury of any person or persons, including Temple employees, the
Architect, any Contractor and the damage or destruction of any property or
properties (collectively, "Losses"), arising out of or in any manner directly or
indirectly connected with the performance by Temple of its obligations under
this Agreement however caused, except for any Losses caused directly or
indirectly by Association's active negligence or willful misconduct. Association
shall indemnify, defend and hold the Temple and its agents, directors, officers,
employees and representations free and harmless from any and all Losses arising
out of or in any manner directly or indirectly connected with the performance by
the Association of its obligations under this Agreement however caused, except
for any Losses caused directly or indirectly by Temple's active negligence or
willful misconduct.
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 following
insurance:
(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 a
$5,000.00 deductible. The policies of insurance shall contain the "replacement
cost endorsements. Association shall name Temple as a loss payee on said
Property Policy.
12.3 Liability Insurance. Temple shall procure and maintain
throughout the term of this Agreement Comprehensive public liability insurance
insuring, on an "occurrence basis," against claims for "personal injury",
including without limitation bodily injury or death, or "property damage,"
21
occurring on, in or about the Complex, or arising from or connected with
Temple's use, conduct in or maintenance of the Complex, in an amount of
$l,000,000.00 per occurrence with respect to personal injury, death of any one
person and property damage. The policy also shall insure against loss resulting
from the actions of Temple's independent contractors and Temple's contractual
liability, including this Agreement. Association shall have the right from time
to time to require an increase in the amount of coverage based on the risks
involved in Temple's operations or interests. Temple shall name Association as
an additional insured under said Comprehensive General Liability Policy.
12.4 Certificates of Insurance. Association and Temple shall
deliver to each other at least thirty (30) days prior to the time such insurance
is first required to be carried, and thereafter at least thirty (30) days prior
to expiration of each such policy, certificates of insurance evidencing the
above coverage with limits not less than those specified above. Further, all
such certificates shall expressly provide that no less than thirty (30) days'
prior written notice shall be given in the event of material alteration to or
cancellation of the coverage evidenced by such certificates. Throughout the term
of this agreement Temple shall be required to carry Workers Compensation and
Employers Liability Insurance as required by California Law. The Employers
Liability coverage shall have limits not less than $1,000,000.00 for each
accident. A waiver of subrogation in favor of the Association is required on all
Workers Compensation Policies.
XIII
REPRESENTATIONS AND WARRANTIES
13.1 By Temple. Temple represents and warrants to the
Association as follows:
13.1.1 Workmanlike Construction. The Complex will be
constructed in good and workmanlike fashion, free from material
faults and defects, and substantially in accordance with the
Drawings and Specifications.
13.1.2 Organization of Temple. Temple is a duly organized
"religious corporation," as that term is used in the California Cemetery Act,
California Business & Professions Code Sections 9600 et seq.
13.1.3 Authorization Relative to this Agreement. Temple has
the requisite power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and deliver of this Agreement and the transactions contemplated
hereby have been duly and validly authorized by Temple's governing authorities,
and no other actions need be taken by Temple to
22
authorize this Agreement and the transactions contemplated hereby. This
Agreement constitutes Temple's valid and binding agreement, enforceable against
Temple in accordance with this Agreement's terms.
13.2 Term. Temple's representations and warranties as set
forth in this Agreement shall terminate one (1) year from the Completion of the
Construction, except as to claims asserted prior to the said termination date.
13.3 Assignment of Other Warranties. Temple shall assign to
Association all warranties made or given to Temple with respect to the Work by
the Architect and Contractors.
13.4 By Association. Association represents and warrants to
Temple that Association has legal right, power and authority to execute and
deliver this Agreement and to perform its obligations hereunder.
XIV
NOTICES
14.1 Addresses. Any notice, request, demand, consent, approval
or other communication (a "Notice") required or permitted hereunder or by law
shall be given in writing, addressed as follows:
If to Association: c/o Rose Hills Company
3900 South Workman Mill Road
P.O. Box 110
Whittier, California 90608
Attn: Corporate Secretary
With a copy to: Latham & Watkins
701 "B" Street, Suite 2100
San Diego, California 92101
Attn: Boyd J. Black
If to Temple: International Buddhist Progress Society
3456 S. Glenmark Drive
Hacienda Heights, California 91745
Attn: Venerable Hsin-Kuang Shih
With a copy to: Simons, Li & Associates, Inc.
3636 Birch Street,
Suite 290 Newport Beach,
California 92660-2619
Attn: Ruh-Ming Li, Ph.D.
Any party may from time to time, by written Notice to the other, designate a
different address that shall be substituted for the address specified above.
23
14.2 Receipt. If personally delivered, Notices shall be deemed
received at the time of delivery. If sent by certified mail, return receipt
requested, Notices shall be deemed fully delivered and received three (3)
business days after the date of the postmark. Notices delivered via fax or
courier shall be deemed fully delivered and received at the time of actual
receipt. Except as otherwise expressly provided herein, Notices shall be deemed
fully delivered and received at the time of actual receipt.
XV
DISPUTE RESOLUTION
15.1 Mandatory Arbitration. Except as otherwise provided in
this Agreement (including Paragraphs 4.4, 4.5.2, and 4.5.4), any dispute between
the parties arising under the terms of this Agreement shall be the subject of
binding, mandatory arbitration according to the provisions of this Article XV.
15.2 Selection of Arbitrators. Disputes shall be resolved by a
panel of three (3) arbitrators. Each party shall select one arbitrator and the
two arbitrators so chosen shall choose the third arbitrator. If either party
refuses to select an arbitrator, the other party may file a petition for the
appointment of an arbitrator pursuant to Code of Civil Procedure Section 1281.6.
15.3 Rules of Arbitration. The appointed panel shall determine
the rules of procedure and the schedule that shall govern the arbitration of
disputes, consistent with any procedures or schedules required by the provisions
of the California Arbitration Law, regardless of the amount in dispute.
15.4 Allocation of Costs. The appointed panel shall determine
the appropriate allocation of the costs and expenses of arbitration, including
the panel's fee, attorney's costs and fees, and experts' and consultants' costs
and fees for each dispute submitted to arbitration.
15.5 Commencement of Arbitration. Either party may initiate
arbitration by serving a request on the other party. The parties shall commence
the arbitration as soon as practical thereafter.
15.6 Counsel. Any party may be represented by counsel in the
arbitration.
15.7 Ex Parte Contacts. Ex parte contacts with the panel by
the parties or their counsel shall be prohibited.
15.8 Decisions. The decisions of the panel shall be rendered
in writing, and shall be binding.
24
15.9 Applicable Law and Procedure. The arbitration shall be
conducted in compliance with the requirements of the Evidence Code. The decision
of the arbitrators shall be based upon the substantive and procedural law of the
State of California, including statutes and case law.
15.10 Experts and Consultants. The panel may retain such
appropriately qualified experts and consultants as are reasonably necessary in
order to permit the panel to reach an equitable resolution of the dispute, after
giving five (5) days' written notice to the parties.
XVI
MISCELLANEOUS PROVISIONS
16.1 Compliance with Law. Temple shall cause all such acts and
things to be done in and about the Complex as shall be required by Applicable
Law and this Agreement.
16.2 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, personal representatives, successors and permitted
assigns.
16.3 Consent. The consent by one party to any act by another
party shall not be deemed to imply consent, or waiver of the necessity of
obtaining such consent, for the same or any similar acts in the future. No
waiver or consent shall be implied from silence or from any failure of a party
to act, except as otherwise specified in this Agreement.
16.4 Remedies. All rights, remedies, undertakings,
obligations, options, covenants, conditions, and agreements contained in this
Agreement or provided by law or in equity shall be cumulative, and no one of
them shall be exclusive of any other. A party may pursue any one or more of its
rights, options or remedies hereunder, seek damages or specific performance in
the event of another party's breach hereunder, or may pursue any other remedy at
law or in equity, whether or not stated in this Agreement.
16.5 Non-Waiver. No failure by a party to take action by
reason of any default by the other party, whether in a single instance or
repeatedly, shall constitute a waiver of any such default or of the performance
required of the defaulting party. No express waiver by a party of any provision
of this Agreement or default by the other party in any one instance shall be
construed as a waiver of the same provision or default in any subsequent
instance.
16.6 Attorneys' Fees. In the event of any action or
arbitration instituted between the parties in connection with this Agreement,
the prevailing party shall be entitled to recover
25
from the losing party the prevailing party's costs and expenses, including
reasonable attorneys' fees, subject to Paragraph 15.4.
16.7 Gender and Number. In this Agreement, unless the context
requires otherwise, the masculine, feminine and neuter genders and the singular
and the plural shall be deemed to include one another, as appropriate.
16.8 Entire Agreement. This Agreement constitutes the entire
agreement between the parties thereto pertaining to the subject matter hereof,
and the final, complete and exclusive expression of the terms and conditions
thereof. All prior agreements, representations, negotiations and understandings
of the parties hereto, oral or written, express or implied, are hereby
superseded and merged herein.
16.9 Captions. The captions used in this Agreement are for
convenience of reference only, are not a part of this Agreement and do not in
any way limit or amplify the terms and provisions hereof.
16.10 Governing Law. This Agreement has been negotiated
and executed in the State of California and shall be governed by
and construed under the laws of the State of California.
16.11 Partial Invalidity. If any provision of this Agreement
is adjudged by court of competent jurisdiction to be void or unenforceable for
any reason, the same shall in no way affect any other provisions of this
Agreement, or the validity or enforceability of the Agreement as a whole.
16.12 Amendments. No addition to or modification of any
provision contained in this Agreement shall be effective unless fully set forth
in a writing signed by Association and Temple.
16.13 Counterparts. This Agreement may be executed in more
than one counterpart, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
16.14 Time of Essence. Time is of the essence of this
Agreement.
16.15 Negation of Partnership. None of the terms or provisions
of this Agreement shall be deemed to create a partnership between the parties.
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.
26
Temple: Ruh-Ming Li, Ph.D.
Association: Dennis C. Poulsen
16.17 Assignment. Neither party has the right to assign its
obligations hereunder without the prior written consent of the other party,
which consent shall not be unreasonably withheld.
16.18 Claims. Temple shall give Association prompt notice of
any condition at the Complex requiring Association's attention, of any claims
made that may affect the Complex, or of any alleged violations of Applicable Law
made against Association, or Association and Temple, and shall cooperate fully
with Association and with any insurance carrier to the end that all such matters
will be properly investigated and defended. Temple shall not hire any legal
counsel to defend any such claim against Association without Association's prior
written consent.
16.19 Memorandum of Agreement. The parties shall execute a
short form memorandum, containing a summary of the significant provisions of
this Agreement, in form and content sufficient to enable it to be recorded.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
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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