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Home My WebLink AboutResolution No. 5625RESOLUTION NO. 5625 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEY APPROVING THAT CERTAIN AGREEMENT ENTITLED "DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF DOWNEY AND KRIKORIAN PREMIERE THEATRES, INC., A CALIFORNIA CORPORATION, DATED NOVEMBER 10, 1992" FOR THE REDEVELOPMENT OF CERTAIN PROPERTY WITHIN THE DOWNEY REDEVELOPMENT PROJECT AREA GENERALLY BOUNDED BY LA REINA AVENUE, THIRD STREET, NEW STREET AND SECOND STREET THE CITY COUNCIL OF THE CITY OF DOWNEY DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The City Council of the City of Downey hereby finds, determines, and declares that: A. The project proposed by KRIKORIAN PREMIERE THEATRES, INC., a California corporation ( "Developer "), pertains to property bounded by La Reina Avenue, Third Street, New Street, and Second Street in the City of Downey ( "Site ") which is within the boundaries of the Downey Redevelopment Project Area ( "Project Area "). B. The project to be redeveloped on the Site pursuant to this Agreement is the development of a 38,000 to 40,000 square foot multi -plex motion picture theater and a four -level parking structure with at least 355 parking spaces to be available for the public use without charge. C. Pursuant to the provisions of Health & Safety Code Sections 33430, 33431 and 33433, the Commission duly noticed and held a joint public hearing before the Board of Directors of the Community Development Commission and the City Council of the City of Downey concerning the approval of the proposed Disposition and Development Agreement. D. Pursuant to Health & Safety Code Section 33433, a comprehensive report summarizing and analyzing the proposed Disposition and Development Agreement has been prepared. The report contains the information required by Section 33433, and has been prepared within the time limit set forth therein. E. The sale of the Site to Developer as proposed by the Disposition and Development Agreement is at less than fair market value based on Commission analysis and, therefore, the Board of Directors specifically finds in accordance with the authority of Health & Safety Code Section 33433 that said difference is necessary to effectuate the provisions of the Downey Redevelopment Plan ( "Plan "), and the difference in value is necessary to allow development to come to the Project Area, increase employment opportunities within the Project Area and to otherwise accomplish the purposes and goals of the Plan. F. The Commission and the City shall recoup the difference in sale price and fair market value by increasing tax increment revenues and sales tax revenues due to and directly attributable to this agreement. Resolution No. 5625 Krikorian Theatres DDA Page 2 G. The Commission is specifically authorized by Health & Safety Code Sections 33430, 33431 and 33433, and other applicable law, to enter into this Disposition and Development Agreement. H. With respect to the public facilities and improvements to be constructed by or for the Commission, said improvements are of benefit to the Project Area and the immediate neighborhood and area in which the Site is located and no other reasonable means of financing such facilities and improvements are available to the community. Completing the redevelopment on the Site pursuant to this Agreement is in the vital and best interest of the City and the health, safety, and welfare of its residents, and in accord with the public purposes an provisions of applicable state and local laws. J. This Agreement pertains to and affects the ability of all parties to finance and carry out their statutory purposes and to accomplish the goals of the Plan and is intended to be a contract within the meaning of Government Code Section 53511. SECTION 2. An initial study of the environmental impact and mitigated negative declaration have been prepared for this disposition and development agreement in accordance with the provisions of the California Environmental Quality Act (CEQA), State CEQA Guidelines, and the City of Downey's Revised Environmental Procedures. Prior to the adoption of this ordinance, the Community Development Commission has considered the initial study and mitigated negative declaration, together with all comments received during the environmental document's public review period and the public haring. Based on the environmental documents and comments received, the Community Development Commission certified the negative declaration and found, determined and declared that there is no substantial evidence that this disposition and development agreement will have a significant adverse effect on the environment, given the mitigation measures identified and imposed on the project. Resolution No. 5625 Krikorian Theatres DDA Page 3 SECTION 3. The City Council of the City of Downey hereby approves that certain Disposition and Development Agreement entitled "Disposition and Development Agreement by and between the Community Development Commission of the City of Downey and Krikorian Premiere Theatres, Inc., a California Corporation, Dated November 10, 1992" and authorizes the Chairperson of the Commission to execute said Agreement for and on behalf of the Commission in substantially the form attached hereto as Exhibit A, and the Secretary is hereby authorized to attest the same and affix the seal of the Commission thereto. ATTEST: PASSED, APPROVED, AND ADOPTED THIS 10TH DAY OF NOVEMBER, 1992 k udith E. McDonnell -- 'City Clerk 0 , .C4n / Diane P. Boggs, Mayor 0 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the City Council of the City of Downeyy at a regular meeting thereof held on the 10th day of November, 1992 by the following vote of the City: AYES: 3 COUNCILMEMBERS: NOES: 0 COUNCILMEMBERS: ABSENT: 0 COUNCILMEMBERS: ABSTAINED: 2 COUNCILMEMBERS: Riley, Lawrence, Boggs Brazelton, McCaughan ,,,,,(iid,„,_,,,e__, /O dith E. McDonnell I i ty Clerk 4461.13 11/12/92 RECORDED AT REQUEST OF AND WHEN RECORDED RETURN TO: Gerald M. Caton Executive Director Downey Community Development Commission 11111 Brookshire Avenue Downey, CA 90241 DISPOSITION AND DEVELOPMENT AGREEMENT by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF DOWNEY KRIKORIAN PREMIERE THEATRES, INC. A California Corporation and Dated November 10, 1992 DOWNEY REDEVELOPMENT PROJECT AREA EXHIBIT A 4461.13 11/12/92 TABLE OF CONTENTS pAGg ARTICLE I SUBJECT OF AGREEMENT 1 Section 1.1 Purpose of Agreement 1 Section 1.2 The Redevelopment Plan 1 Section 1.3 The Site 2 Section 1.4 Parties to the Agreement 2 A. The Commission 2 B. The Developer 2 Section 1.5 Prohibition Against Change in Ownership, Management and Control of Developer . . . 2 Section 1.6 Contract Documents 3 ARTICLE II ACQUISITION OF PORTIONS OF THE SITE 4 Section 2.1 Commission Acquisition of Parcel B of Site 4 Section 2.2 Sale and Purchase 4 Section 2.3 Conditions Precedent to Commission Obligations 4 Section 2.4 Evidence of Financing 5 Section 2.5 Condition of Property 5 Section 2.6 Escrow 6 Section 2.7 Conveyance of Title 6 Section 2.8 Environmental Investigations 7 Section 2.9 Demolition of Improvements; Removal of Hazardous Materials 8 ARTICLE III DEVELOPMENT OF THE SITE 9 Section 3.1 Scope of Development 9 -i- 4461.13 11/12/92 Section 3.2 Construction Drawings and Related Documents 9 Section 3.3 Section 3.4 Section 3.5 Cost of Construction Construction Schedule Commission Assistance Plaza Section 3.6 Commission Assistance for Pedestrian 9 9 .10 for Parking Structure 11 Section 3.7 Indemnity and Insurance 11 Section 3.8 City and Other Governmental Permits . . 13 Section 3.9 Rights of Access 13 Section 3.10 Local, State and Federal Laws 13 Section 3.11 Antidiscrimination During Construction 13 Section 3.12 Encumbrances and Liens 14 Section 3.13 Prohibition Against Transfer of the Site, the Buildings or Structures Therein and Assignment of Agreement . . . 14 Section 3.14 Financing; Rights of Holders 14 Section 3.15 Certificate of Completion 15 ARTICLE IV USE OF THE SITE 16 Section 4.1 Uses 16 Section 4.2 Covenants for Non - Discrimination . . . 17 Section 4.3 Maintenance Covenants 19 Section 4.4 Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction 19 Section 4.5 Continuation of Covenants 19 4461.13 11 /12/9'2 ARTICLE V GENERAL PROVISIONS 20 Section 5.1 Notices, Demands and Communications Among the Parties 20 Section 5.2 Conflicts of Interest 20 Section 5.3 Enforced Delay; Extension of Times of Performance 20 Section 5.4 Non - liability of Officials and Employees of the Commission 21 Section 5.5 Inspection of Books and Records 21 ARTICLE VI DEFAULTS AND REMEDIES 21 Section 6.1 Defaults -- General 21 Section 6.2 Legal Actions 22 A. Institution of Legal Actions 22 B. Applicable Law 22 C. Acceptance of Service of Process 22 Section 6.3 Rights and Remedies Are Cumulative . . 23 Section 6.4 Inaction Not a Waiver of Default . . . 23 Section 6.5 Damages 23 Section 6.6 Specific Performance 23 Section 6.7 Termination Prior to the Commission Conveyance 23 A. Termination by the Developer 23 B. Termination by the Commission 24 C. Procedure for Termination 25 D. Consequences of Termination 25 Section 6.8 Power of Termination and Right of Reentry and Revesting of Title in the Commission After Commission Conveyance . 26 ARTICLE VII SPECIAL PROVISIONS 28 Section 7.1 Submission of Documents to the Commission for Approval 28 Section 7.2 Amendments to this Agreement 28 Section 7.3 Real Estate Commission 29 Section 7.4 Entire Agreement, Waivers & General . . 29 4461.13 11/12/92 Section 7.5 Time For Acceptance Of Agreement By Commission 30 -iv- 4461.13 11/12/72 DISPOSITION AND DEVELOPMENT AGREEMENT THIS AGREEMENT is entered into by and between the DOWNEY COMMUNITY DEVELOPMENT COMMISSION ( "Commission ") and KRIKORIAN PREMIERE THEATRES, INC., a California corporation (the "Developer ") and is dated as of November 10, 1992. In consideration of the mutual covenants and agreements contained herein, the Commission and the Developer hereby agree as follows: ARTICLE I SUBJECT OF AGREEMENT Section 1.1 Purpose of Agreement A. The purpose of this Agreement is to effectuate the Downey Redevelopment Plan (hereinafter "Plan ") for the Downey Redevelopment Project Area (hereafter "Project Area ") by providing for the redevelopment of certain property, hereafter described, located in the Project Area, in accordance with the Plan. B. The real property to be redeveloped pursuant to this Agreement (the "Site ") is depicted on the "Site Map ", which is attached hereto as Exhibit No. 1. C. This Agreement is entered into for the purpose of redeveloping the Site and not for speculation in land holding. D. Completing the redevelopment on the Site pursuant to this Agreement is in the vital and best interest of the City of Downey, California (the "City "), enhances the health, safety, and welfare of its residents, benefits the Project Area, and is in accord with the public purposes and provisions of applicable state and local laws. E. This Agreement pertains to and affects the ability of all parties to finance and carry out the project and the statutory purposes and the goals of the Plan. It is intended to be a Contract within the meaning of Government Code Section 53511. Section 1.2 The Redevelopment Plan The Plan, as approved and adopted by the City Council of the City on August 8, 1978 by Ordinance No. 553, and amended by the Council on August 14, 1979 by Ordinance No. 603, -1- October 28, 1980 by Ordinance No.633, and July 20, 1987 by Ordinance No. 856 and July 7, 1991 by Ordinance Nos. 930 and 931, is incorporated herein by this reference. The Plan shall be in effect until June 30, 2017, unless amended to extend its duration. Notice of the Plan, as amended, and the legal description of the Project Area affected thereby was recorded on July 11, 1991 as Document No. 91- 1059013 in the Official Records of Los Angeles County. Section 1.3 The Site 4461.13 11/12/92 The Site consists of the real properties shown on the Site and described in Legal Description of Site, which is attached hereto as Exhibit No. 2. The Site is composed of two (2) parcels, Parcel A and Parcel B. Parcel A is the location of the former Downey Municipal Courthouse and is currently owned by the Commission. Parcel B is a public parking lot owned by the City of Downey and is known as Area No. 1 of Parking District No. 1, Assessment District No. 66. Section 1.4 Parties to the Aareement A. The Commission The Commission is a public body, corporate and politic, organized and existing under the Community Development Commission law of the State of California (Health and Safety Code Sections 34110 et seq.) and exercising governmental functions and powers pursuant to the Community Redevelopment Law of the State of California (Health and Safety Code 33000 et seq.). The principal office of the Commission is located at 11111 Brookshire Avenue, Downey, California 90241 -0607. B. The Developer The Developer is a California corporation duly organized and existing under the laws of the State of California. The principal office and mailing address of the Developer is: Krikorian Premiere Theaters, Inc; 119 W. Torrance Bl., Suite 1; Redondo Beach, California 90277. Section 1.5 Prohibition Aaainst Change in Ownership. Manaaement and Control of Developer A. The qualifications and identity of Developer is of particular concern to the Commission. It is because of its qualifications and identity that the Commission has entered into this Agreement with the Developer. Therefore, no voluntary or -2- 4461.13 11/12/92 involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement except as expressly set forth herein. B. The Developer shall not assign all or any of its rights or duties under this Agreement, including any transfer of ownership or change of control of the Developer, without the prior written approval of the Commission, which consent the Commission shall not unreasonably withhold provided the Commission determines that the successor is similarly qualified and has specifically agreed in writing to be bound by the provisions of this Agreement. Additionally, the Commission hereby approves the assignment of this Agreement and /or the conveyance of the Site by Developer to an affiliate, subsidiary corporation or nominee of Developer provided that George Krikorian or Developer holds not less than fifty one percent (51 %) of the voting shares of such an entity if a corporation or a controlling interest if other than a corporation and such entity specifically agrees to be bound by the terms of this Agreement and provided further that Developer shall remain secondarily liable in the event such affiliate, subsidiary corporation or nominee fails to fulfill the obligations of Developer pursuant to this Agreement. C. All of the terms, covenants and conditions of this Agreement shall be binding upon and shall inure to the benefit of the Developer and only to those permitted successors and assigns of the Developer. Whenever the term "Developer" is used herein, such term shall include any other lawful successors in interest of Developer as may be permitted by the Commission. Section 1.6 Contract Document The Contract Documents which are part of this Agreement, and each of which are incorporated herein by this reference, are as follows: Exhibit No. 1 Site Map Exhibit No. 2 Legal Description of Site Exhibit No. 3 Schedule of Performance Exhibit No. 4 Escrow Instructions 4A Grant Deed Exhibit No. 5 Basic Concept Drawings Exhibit No. 6 Scope of Development -3- A. In accordance with and subject to all of the terms, covenants and conditions of this Agreement, the Commission agrees hereby to acquire Parcel B of the Site subject to the terms, conditions and provisions of this Agreement. The Developer and Commission specifically agree that the Commission will acquire Parcel B subject to any public parking encumbrances upon Parcel B and that the parking structure to be constructed upon the Site pursuant to this Agreement shall be designed and operated in order to preserve the free public parking originally available on Parcel B through Parking District No. 1, Assessment District No. 66 and such additional public parking as described in this Agreement. B. The parties agree that Commission shall, in good faith, act by lawful means to acquire the fee interest of said Site and achieve the preservation of the public parking contemplated by this Agreement. The parties hereto do agree that if the Commission cannot acquire all of the rights for the Site, this Agreement may be terminated by either party pursuant to Section 6.7 Section 2.1 Commission Acaujsition of Parcel B of Site A. In accordance with and subject to all terms, covenants and conditions of this Agreement, the Commission agrees to sell the Site to Developer and Developer agrees to purchase the Site and redevelop the Site within the times, for the consideration, and subject to the terms, conditions and provisions as hereinafter provided. 4461.13 11/1V92 Section 2.2 We and Purchase B. The Purchase Price for the Site shall be ONE DOLLAR ($1.00). Section 2.3 Conditions Precedent to Commission Obliaations Commission shall not be obligated to convey the Site to Developer until the Developer satisfies each of the following conditions precedent: ARTICLE II ACQUISITION OF PORTIONS OF THE SITE -4- 4461.13 11/12/92 A. Developer obtains a development agreement and all land use entitlement from the City, including building permits, necessary for development of the Site pursuant to this Agreement; B. Developer has obtained financing from a financial institution with the loan closing concurrent with conveyance to finance Developer's development of the Site pursuant to this Agreement; C. All necessary documentation and approvals transferring the public parking rights from Area 1 of Parking District No. 1, Assessment District No. 66 have been duly approved by the appropriate authorities; D. City has completed all discretionary actions necessary to vacate the northerly half of Second Street roadway adjacent to the Site as required for the Pedestrian Plaza pursuant to the Scope of Development. E. Developer approves, accepts and executes the Grant Deed for the Site which contains a covenant which irrevocably declares and reserves for the City three hundred fifty -five (355) parking spaces in the parking structure which will be constructed on the Site, subject to the conditions contained in this Agreement. F. Developer has executed and entered into a valid and binding agreement with a general contractor for the construction of the improvements described in this Agreement. permits. G. Developer has obtained all necessary building Section 2.4 Evidence of Financina On or before October 30, 1993, Developer shall submit evidence to the Commission that Developer has obtained a binding commitment from a financial institution subject to reasonable and customary terms and conditions for development of the Site pursuant to this Agreement and evidence of the equity required by the lender and shall maintain such a commitment during the term of this Agreement prior to close of escrow. Developer agrees to notify Commission of any change in the status of the financing commitment, or any revised financing commitment. Section 2.5 ConQition of Property Developer acknowledges that it is sophisticated and knowledgeable with regard to evaluating, buying and selling real property in the area and that prior to the close of escrow, -5- 0961.13 pursuant to this Agreement, will have had sufficient opportunity to enter the Site and make any and all tests and inspections as Developer deems necessary to satisfy itself as to the condition of the Site for the uses set forth in this Agreement. GRANT DEED AND AS EXPRESSLY SET FORTH IN THIS AGREEMENT 11/12/92 DEVELOPER IS ACQUIRING THE SITE "AS IS" WITHOUT ANY REPRESENTATIONS OR WARRANTY OF ANY KIND WHATSOEVER AS TO ITS CONDITION (LATENT, PATENT, OR OTHERWISE), EXCEPT FOR THE WARRANTIES IMPLIED IN THE DELIVERY OF A Section 2.6 Escrow The Parties hereto shall enter into Escrow for the conveyance of the Site in accordance with the Schedule of Performance. Prior to entering escrow the Executive Director on behalf of the Commission and the Developer shall agree upon an Escrow Agent and shall execute Escrow Instructions as necessary to effectuate and implement this Agreement. The Escrow Instructions shall be substantially in the form of Escrow In- structions attached hereto as Exhibit 4 and may be amended as necessary. Section 2.7 Conveyance of Title A. Commission agrees to convey marketable fee simple title to the Site by Grant Deed to Developer free and clear of all recorded and unrecorded liens, encumbrances, assessments, easements, leases and taxes EXCEPT such items as may be agreed upon between the parties pursuant to subparagraphs B and C of this Section. B. As soon as practicable following the date of this Agreement, and not later than sixty (60) days thereafter, Commission shall obtain a Preliminary Title Report on the Site from Chicago Title Insurance Company and shall deliver to Developer a copy of the Preliminary Title Report together with copies of all documents and instruments referred to in the Preliminary Title Report. Developer shall have ten business days after the receipt of the Preliminary Title Report to approve or disapprove the same. Developer shall be deemed to have approved the Preliminary Title Report unless it delivers to Commission written notice of its disapproval within the ten -day period specified. Developer's written notice of disapproval shall specify the specific items on the Preliminary Report which it disapproves. In the event Developer disapproves the Preliminary Title Report, Commission (at its option) will have thirty (30) -6- 4461.13 11/12/92 days following the date of delivery to Commission of Developer's disapproval of the Preliminary Title Report within which to agree to remove any item on the Preliminary Report to which the Devel- oper objected in its notice of disapproval. In the event Commission elects not to agree to remove any such item, either party will have the right to terminate the Agreement pursuant to Section 6.7, provided, however, that prior to the Commission terminating the Agreement on such grounds, Developer shall have ten (10) working days following notice from the Commission to elect to remove the item disapproved by the Commission at Developer's sole cost and expense. Following Developer's election to remove the item, Commission shall have no obligation to proceed with its obligations pursuant to this Agreement until such time as the item is in fact removed. C. Escrow Agent shall, following recording of deed to Developer, provide Developer with CLTA Standard Coverage Policy of Title Insurance in the amount of the purchase price of the Site issued by Chicago Title Insurance Company showing title to the property vested in Developer, subject only to the exceptions agreed to by the parties. Developer agrees to pay the premium charge thereof. Section 2.8 Environmental Investiaations A. Commission shall perform such tests and investigations it deems necessary in order to determine if contaminated materials and toxic and hazardous waste are present on the Site. Within ten (10) days of a written request by Commission, Developer shall approve, in writing, the testing and investigation to be performed and the consultants who will perform the testing. B. The costs if such tests and investigations shall be shared equally between the Commission and Developer. Prior to proceeding with the testing and investigations, Developer shall deposit with the Commission its anticipated share of such costs and expenses. C. The results of any such tests and investigations shall be set forth in an Environmental Report, which Report shall be provided to Developer when received by Commission. The Environmental Report shall be subject to approval by Developer and the Executive Director on behalf of the Commission. If Developer or Commission fails to approve the Environmental Report within thirty (30) days after Commission and Developer have received the Report, such Report shall be deemed approved by each party which fails to give notice of approval or disapproval within such time period. -7- D. Commission agrees to provide the Developer, upon Developer's request, with copies of any data, surveys and tests conducted, obtained or performed by or under the direction of the Commission pursuant to this Section. Commission shall not be responsible for the accuracy of any surveys or tests conducted pursuant to this Section. E. Developer assumes all responsibility for grading the Site and performing all soils and geologic investigations and tests other than that which the Commission will perform pursuant to this Section. 4461.13 un2/92 Section 2.9 Demolition of ;morovements: Removal of Hazardous Materials A. Commission shall at its sole cost and expense, (i) remove from the Site all subsurface structures and underground storage tanks, (ii) remove from the Site all debris of such improvements or subsurface structures and underground storage tanks and (iii) remove from the Site any known contaminated materials or toxic or hazardous waste as required by law, up to a dollar cap of Twenty Five Thousand Dollars ($25,000.00). Developer assumes all responsibility for grading the Site and performing all soils work other than that which the Commission specifically agrees to perform pursuant to this Section. B. Developer shall not be obligated to accept the Site until such items described in subparagraph A are removed and Developer has accepted the condition of the soil on the Site. Upon conveyance of the Site to Developer, however, Commission's obligations under this Section shall be limited to such contaminated material or toxic or hazardous waste as was present on the Site at the time of conveyance. Developer shall be solely responsible for contaminated materials or toxic or hazardous waste placed on the Site after the date of conveyance. C. Nothing in this Section shall be construed to preclude the Commission or Developer from pursuing its remedies against any party who may be responsible for the placement or deposit of any contaminated material or toxic or hazardous substances on the Site. -8- 446 1.13 11/12/92 ARTICLE III DEVELOPMENT OF THE SITE Section 3.1 Scope of Development A. The Site shall be developed within the general controls established in the Scope of Development, the approvals of Commission described herein and of the City pursuant to a development agreement pursuant to Government Code Sections 65864 gt sea. B. As provided in the Scope of Development, Developer shall develop a 38,000 to 40,000 square foot multi -plex motion picture theater of not less than ten screens with a total of not more than 2,500 seats and a four (4) level parking structure containing not less than three hundred fifty five (355) parking stalls for public use which shall be available at all times for public parking free of charge. Further restrictions on the use of the Site are set forth in Section 4.1 and the Scope of Development. Section 3.2 Construction Drawinas and Related Documents The Developer shall prepare and submit construction drawings, specifications and related documents for the entire Site to the City of Downey for review within the time specified in Item 4 of the Schedule of Performance. Section 3.3 Cost of Construction The cost of developing the Site and constructing all improvements on the Site shall be borne by the Developer except as provided in Section 3.5. In order to assure the quality of the Project as demanded by the Commission, Developer agrees that the total value of the Project, including all interior improvements and equipment shall not be less than Ninety Five Dollars ($95.00) per square foot of building for the construction of the theater building and not less than Twenty Dollars ($20.00) per square foot of structure for the parking structure. Section 3.4 Construction Schedule A. After the conveyance of title or possession to the Site, the Developer shall promptly begin and thereafter diligently prosecute to completion the construction of the improvements and the development upon the Site in accordance with the Schedule of Performance. The Developer shall begin and -9- 4461.13 11112/92 complete all construction and development within the times specified in the Schedule of Performance or such reasonable extension of said dates as may be granted by the Commission in writing. B. During the period of construction the Developer shall submit to the Commission written reports of the progress of the construction. The reports shall be in the same form and in the same detail as normally prepared for internal reports of Developer or for reports from Developer's general contractor to Developer. Section 3.5 Commission Assistance for Pedestrian Plaza A. Construction of the Pedestrian Plaza adjacent to the Site as described in Scope of Development will provide a benefit to the Project Area and the immediate areas surrounding the Site and will be in the interest of public welfare of the citizens of Downey because of the increased public facilities and generation of consumer traffic in the Downtown Area surrounding the Site. Additionally, no other reasonable means of financing such a Pedestrian Plaza on the Site are available to the City and the Commission. B. Commission agrees to construct and install the Pedestrian Plaza generally located on the northerly half of the Second Street right of way and more specifically described in the Scope of Development and Basic Concept Drawings. Commission shall not be required to construct the Pedestrian Plaza unless and until it obtains the right to enter the area designated for the Pedestrian Plaza. It is anticipated that the roadway use of the northerly half of Second Street right of way adjacent to the Site, which comprises a portion of the property required for the Pedestrian Plaza, will be vacated by the City if and when the City Council holds appropriate public hearings, makes necessary findings and adopts the necessary resolution vacating said roadway. C. Concurrent with the date Developer obtains a building permit for the construction of the multi -plex motion picture theater complex described in the Scope of Development and parking structures, Developer shall deposit the sum of THIRTY THOUSAND DOLLARS ($30,000) into an interest bearing account which shall be used by the Commission to develop a Pedestrian Plaza adjacent to the Site as described in the Scope of Development (Exhibit 5). -10- 4461.13 11/12/92 Section 3.6 Commission Assistance for Parking Structure A. Construction of the four -story parking structure on the Site as described in Scope of Development will provide a benefit to the Project Area and the immediate areas surrounding the Site and will be in the interest of public welfare of the citizens of Downey because of the increased public parking and generation of consumer traffic in the Downtown Area surrounding the Site. Additionally, no other reasonable means of financing such a parking structure on the Site are available to the City and the Commission. B. Provided that the parking structure and multi -plex motion picture theater complex, as described in the Scope of Development, remain open to the public pursuant to the terms of this Agreement, and in consideration of the benefits described herein, the Commission agrees that until June 30, 2022 or the expiration of the Plan, whichever is earlier, and beginning in the first full fiscal year following issuance of the Certificate of Completion, the Commission shall pay to the Developer a Tax Increment Assistance. The Tax Increment Assistance shall be the amount of property tax increment revenue the Commission actually receives from property tax revenue for the Site. Tax Increment Assistance does not include any property tax revenue owed to the County pursuant to existing pass- through agreements, legally required contributions to the Low and Moderate Income Housing Fund, or any other amounts that the Commission is legally required to contribute for some other purpose. The Tax Increment Assistance shall not include increases in tax increment created by the sale of the Site following the Commission's sale to Developer. It is the intent of the Parties in agreeing to this provision that the Tax Increment Assistance be based only on the additional value added to the Site by the sale from the Commission to Developer and construction of the improvements described in this Agreement. C. "Tax Increment Revenues" are those revenues which are defined in the Plan and Health and Safety Code S 33670(b) for the Site. Section 3.7 Indemnity and Insurance A. The Developer shall defend, indemnify, assume all responsibility for and hold the Commission and the City, and their respective elected and appointed officers and employees, harmless from all costs (including attorneys fees and costs), claims, demands or liabilities judgments for injury or damage to property and injuries to persons, including death, which may be caused by any of the Developer's activities under this Agreement, including but not limited to the existence and operation of the • theater, Parking Structure and Pedestrian Plaza, whether such activities or performance thereof be by the Developer or anyone directly or indirectly employed or contracted with by the Developer and whether such damage shall accrue or be discovered before or after termination of this Agreement. B. Not in derogation of the indemnity provisions of subsection A. of this Section, the Developer shall take out and maintain during the period set forth in Subsection E, a comprehensive liability policy in the amount of at least Two Million Dollars ($2,000,000.00) for any person, Five Million Dollars ($5,000,000.00) for any occurrence, and One Million Dollars ($1,000,000.00) property damage naming the City and Commission as additional insureds. Each of the coverage amounts specified in this subsection shall be increased by five hundred thousand dollars ($500,000.00) every five (5) years following the date of this Agreement. C. The Developer shall furnish a certificate of insurance signed by an authorized agent of the insurance carrier setting forth the general provisions of the insurance coverage. This certificate of insurance shall name the City and the Commission and their respective officers, agents, and employees as additional insureds under the policy. The insurer shall be approved by the Executive Director of the Commission. The certificate of insurance shall contain a statement of obligation on the part of the carrier to notify the Commission by certified mail of any modification, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date of any such modification, cancellation or termination. Coverage provided hereunder by the Developer shall be primary insurance and not contributing with any insurance maintained by the Commission or City, and the policy shall contain such an endorsement. The required certificate shall be filed with the Commission prior to commencement of construction. 4461.13 11/17./92 D. The Developer shall also furnish or cause to be furnished to the Commission evidence satisfactory to the Commission that any contractor with whom it has contracted for the performance of work on the Site or otherwise pursuant to this Agreement carries workers' compensation insurance as required by law. E. The insurance obligations set forth in this Section shall remain in effect for the life of the structures constructed on the Site. -12- 4461.13 1 Section 3.8 City and Other Governmental Permits Before commencement of construction or development of any buildings, structures or other work of improvement the Developer shall, at its own expense, secure or cause to be secured any and all permits which may be required by the City and any other governmental agency having jurisdiction as to such construction, development or work. The Commission shall provide all proper assistance to the Developer in securing these permits. Section 3.9 Riahts of Access A. For the purpose of assuring compliance with this Agreement, representatives of the Commission shall have the right of access to the Site, without charges or fees, at normal construction hours during the period of construction for the purposes of this Agreement, including, but not limited to, the inspection of the work being performed in constructing the improvements, so long as they comply with all safety rules. Such representatives of the Commission shall be those who are so identified in writing by the Executive Director of the Commission. B. The Developer and the Commission agree to cooperate in placing and maintaining on the Site one sign during construction indicating the respective roles of the Developer and the Commission in the Project. The cost of the sign shall be borne solely by the Developer. C. Developer hereby grants Commission, its employees, agents and contractors the right to enter the Site, upon conveyance of possession, to Developer, for the purpose of constructing and installing the Pedestrian Plaza described in the Scope of Development. Section 3.10 Local. State and Federal Laws The Developer shall carry out the provisions of this Agreement in conformity with all applicable local, state and federal laws and regulations. Section 3.11 Antidiscrimination Durina Construction The Developer, for itself and its successors and assigns, agrees that in the construction of the improvements provided for in this Agreement, the Developer shall not discriminate against any employee or applicant for employment -13- 4461.13 1I/12/92 because of race, color, creed, religion, age, sex, marital status, handicap, national origin or ancestry. Section 3.12 Encumbrances and Liens Prior to issuance of a Certificate of Completion pursuant to this Agreement, the Developer shall not place or allow to be placed on the Site or any part thereof any mortgage, trust deed, encumbrance or lien other than as expressly allowed by this Agreement. The Developer shall remove or have removed any levy or attachment made on any of the Site or any part thereof, or assure the satisfaction thereof within a reasonable time but in any event prior to a sale thereunder. Section 3.13 Prohibition Aaainst Transfer of the Site. the Buildinas or Structures Therein and Assianment of Aareement Prior to the issuance of a Certificate of Completion pursuant to this Agreement as to any building or structure, the Developer shall not, without prior approval of the Commission, make any total or partial sale, transfer, conveyance, assignment or lease of the whole or any part of the Site or of the buildings or structures on the Site except as permitted by this Agreement. This prohibition shall not be deemed to prevent the granting of temporary or permanent easements or permits to facilitate the development of the Site. Section 3.14 Financing: Riahts of Holders A. Financing Notwithstanding any other provision of this Agreement, deeds of trust are permitted before completion of the construction of the improvements, but only for the purpose of securing loans of funds to be directly used for the acquisition of the Site, the construction of improvements on the Site, and any other purposes necessary for the construction required by this Agreement. The Developer shall notify the Commission in advance of any mortgage, deed of trust or sale and leaseback financing permitted by this Agreement, if the Developer proposes to enter into the same before completion of the construction of the improvements on the Site. Express written approval of the Executive Director of the Commission shall be required for any other financing. -14- 4461.13 11/12/92 B. Notice of Default to Mortaaaee or Deed of Trust Holders; Riaht to Cure With respect to any mortgage or deed of trust granted by Developer as provided herein, whenever the Agency shall deliver any notice or demand to Developer with respect to any breach or default by the Developer in completion of construction of the improvements or otherwise pursuant to this agreement, the Agency shall at the same time deliver to each holder of record of any mortgage or deed of trust authorized by this Agreement, which has requested in writing to be so notified, a copy of such notice or demand. All holders of record of such mortgages or deeds of trust shall notify the Agency of any default of Developer or foreclosure proceedings against Developer. Subject to the further provisions of Section 6.1, each such holder shall (insofar as the rights of the Agency are concerned) have the right, at its option, within thirty (30) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and pursue such cure or remedy with diligence, any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the improvements (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed the Developer's obligations to the Agency by written agreement satisfactory to and with the Agency. Section 3.15 Certificate of Completion A. Promptly after completion of all construction and development of the Site in the manner required by this Agreement, the Commission shall furnish the Developer with a Certificate of Completion upon written request therefor by the Developer. The Commission shall not unreasonably withhold any such Certificate of Completion. Such Certificate of Completion shall be a conclusive determination of satisfactory completion of the construction required by this Agreement upon the Site and the Certificate of Completion shall so state. After recordation of such Certificate of Completion, any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest therein shall not (because of such ownership, purchase, lease or acquisition), incur any obligation pursuant to this Agreement for the initial construction of the improvements. B. A Certificate of Completion of construction for the entire improvement and development of the Site shall be in such form as to permit it to be recorded in the Recorder's Office of Los Angeles County. -15- 4461.13 1 U12/92 C. If the Commission refuses or fails to furnish a Certificate of Completion for the Site, or part thereof, after written request from the Developer, the Commission shall, within fifteen (15) days of written request therefor, provide the Developer with a written statement of the reasons the Commission refused or failed to furnish a Certificate of Completion. The statement shall also contain Commission's opinion of the actions the Developer must take to obtain a Certificate of Completion. If the reason for such refusal is confined to the immediate availability of specific items of materials for landscaping, the Commission shall issue its Certificate of Completion upon the posting of a bond by the Developer with the Commission in an amount representing a fair value of the work not yet completed. If the Commission shall have failed to provide such written statement within said fifteen (15) day period, the Developer shall be deemed entitled to the Certificate of Completion. D. Such Certificate of Completion shall not consti- tute evidence of compliance with or satisfaction of any obliga- tion of the Developer to any holder of any deed of trust securing money loaned to finance the improvements, or any part thereof. Such Certificate of Completion is not a notice of completion as referred to in the California Civil Code, Section 3093. Section 4.1 Uses ARTICLE IV USE OF THE SITE A. The Developer covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Site or any part thereof, that during construction and thereafter, the Developer, and such successors and such assignees, shall use, and devote the Site to use, as a multi -plex motion picture theater of not less than ten screens, showing quality motion pictures, with a total of not more than 2,500 seats, and a four -level parking structure containing not less than 355 parking stalls in compliance with the terms of this Agreement. Uses incidental to the motion picture theater consisting of a) the sale of confections, soft drinks, and other concession stand food items as are customarily sold in a motion picture theater, b) a gourmet eatery, c) sale of video tapes and movie memorabilia, and d) operation of coin or token operated amusement machines, shall also be permitted. B. The parking structure shall be available at all times for public parking without charge to the motorist or vehicle and without regard to whether the occupants of the vehicle will patronize the theater complex. -16- 4461.13 11/12/92 C. Developer further agrees to operate the theater in such a manner as to provide the broadest appeal to the public and therefore agrees not to show motion pictures which 1) are or would be rated "X" by the Academy of Motion Picture Arts and Sciences under its current rating system or 2) whose primary content is the depiction of acts of sexual intercourse or oral copulation. Section 4.2 Covenants for Non - Discrimination A. The Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, age, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site. H. The Developer shall refrain from restricting the rental, sale or lease of the Site on the basis of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: 1. In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selec- tion, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." -17- 4461.13 11/12/92 2. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, handicap, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the se- lection, location, number, use or occu- pancy of tenants, lessees, sublessees, subtenants or vendees in the premises herein leased." 3. In contracts: "There shall be no discrimina- tion against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, handicap, ancestry or national origin, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises." C. The covenants established in this Section and the deeds shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Commission, its successors and assigns, the City and any successor in interest to the Site or any part thereof. The covenants, contained in this Section and the Grant Deed relating thereto shall remain in perpetuity. -18- 4461.13 11/12/92 Section 4.3 Maintenance Covenants Subsequent to the issuance of a Certificate of Comple- tion, the Developer, and all successors and assigns in interest to the Site, shall be obligated to maintain the Site, and all improvements and landscaping situated thereon, in accordance with approved plans, in a clean and neat condition and in a continuous state of good repair. In the event the Developer fails to maintain the Site as required by this Agreement, Commission shall notify Developer in writing of such failure and specify the work necessary to meet the maintenance obligation. In the event the work specified is not completed within thirty (30) days of the date of said notice, Commission may enter the Site, complete the work, and bill Developer for the cost of said work. Section 4.4 The Commission is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own rights, for the purpose of fulfilling its statutory obligations and for the purposes of protecting the interests of the community. The Agreement and the covenants shall run in favor of the Commission, without regard to whether the Commission has been, remains or is an owner of any land or interest therein in the Site or in the Project Area. The Commission shall have the right, if the Agreement or covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of this Agreement and covenants may be entitled. Section 4.5 Continuation of Covenantal Of the covenants which have been established pursuant to this Agreement, the same shall be deemed to be covenants running with the land for the benefit of the Project Area. Covenants relating to construction of improvements on the property shall expire upon the issuance by Commission of a Certificate of Completion or Certificates of Completion as to the entire Site. Covenants relating to the use and maintenance of the Site and improvements thereon and the covenants against discrimination contained in Section 4.2 shall remain in perpetuity. Effect of Violation of the Terms and Provi- sions of this Aareement After Completion of Construction -19- 4461.13 II/12/92 ARTICLE V GENERAL PROVISIONS Section 5.1 Notices. Demands and Communications Amona the parties Written notices, demands and communications among the Commission and the Developer, shall be sufficiently given by personal service or dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Commission or the Developer described in Section 1.4. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section. Notwithstanding anything to the contrary contained herein, notice personally served shall be deemed to have been received as of the date of such services. Section 5.2 Conflicts of Interest The Developer warrants that it has not paid or given and will not pay or give any officer, employee or agent of the City or Commission any money or other consideration for obtaining this Agreement. Section 5.3 Znforced Delay: Extension of Times of Perfor- mance In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where party seeking the extension has acted diligently and delays or defaults are due to events beyond the control of the party such as but not limited to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; intergalactic invasion; litigation not initiated by parties to this Agreement; unusually severe weather; or other causes beyond the control and without the fault of the party claiming an exten- sion of time to perform. Notwithstanding anything to the con- trary in this Agreement, an extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if written notice by the party claiming such extension is sent to the other party within ten (10) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of Executive Director of Commis- -20- 4461.13 11/12!92 sion and the Developer. The parties agree that this Section shall not excuse, prevent, delay or otherwise affect the termination date set forth in Section 6.7.E. and that said termination date shall apply regardless of the reasons for delay and regardless of the good faith efforts of the parties to meet this deadline. Section 5.4 Non - liability of Officials and Employees of the Commission No member, official or employee of the Commission or the City shall be personally liable to the Developer, or any successor in interest, pursuant to the provisions of this Agree- ment, nor for any default or breach by the Commission (or the City). Section 5.5 Inspection of Books and Records Each party has the right to inspect, at reasonable times and upon reasonable notice, the books and records of the other pertaining to the Site as pertinent to the purposes of this Agreement. ARTICLE VI DEFAULTS AND REMEDIES Section 6.1 Defaults -- General A. Subject to the extensions of time set forth in Section 5.3, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. A party claiming a default (claimant) shall give written notice of default to the other party, specifying the default complained of. B. The claimant shall not terminate this Agreement pursuant to Section 6.7, institute proceedings against the other party nor be entitled to damages or specific performance if the other party within fourteen (14) days from receipt of such notice immediately, with due diligence, commences to cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy within thirty (30) days from the date of receipt of such notice, unless the Executive Director of the Commission agrees to extend such date of compliance. Such cure, correction and remedy shall include payment of any costs, expenses (including attorney fees) or damages incurred by the non - defaulting party resulting from the default or during the period of default. -21- C. In the event the notice of default is served upon Developer during the time foreclosure proceedings with respect to the Site are pending against the Developer with regard to a mortgage or deed of trust authorized by this Agreement, Agency agrees not to terminate this Agreement pursuant to Section 6.7, institute proceedings against the Developer or holders of any mortgage or deed of trust, nor be entitled to damages or specific performance for a period of six (6) months after the date of such notice in order to allow the holder of the mortgage or deed of trust an adequate opportunity to cure the default or to sell the Site to a qualified purchaser, provided, however that the holder of the mortgage or deed of trust is proceeding in a diligent and reasonable manner to cure the default or find a qualified purchaser for the Site in accordance with the terms of this Agreement. 4461.13 11/12/92 Section 6.2 Leaal Actions A. Institution of Leaal Actions Any legal actions related to or arising out of this Agreement must be instituted in the Superior Court of the County of Los Angeles, State of California, in an appropriate municipal court in that county, or, if federal jurisdiction exists, in the Federal District Court in the Central District of California. In the event such litigation is filed by one party against the other to enforce its rights under this Agreement, the prevailing party, as determined by the Court's judgment, shall be entitled to reasonable attorney fees and litigation expenses for the relief granted. B. Applicable Law The laws of the State of California shall govern the interpretation and enforcement of this Agreement, except where superseded or preempted by Federal Law. C. Acceptance of Service of Procesq In the event that any legal action is commenced by the Developer against the Commission, service of process on the Commission shall be made by personal service upon the Executive Director or in such other manner as may be provided by law. In the event that any legal action is commenced by the Commission against the Developer, service of process on the Developer shall be made by personal service upon a corporate officer of the Developer and shall be valid whether made within or without the State of California or in such other manner as may be provided by law. -22- 4461.13 11/12/92 Section 6.3 Riahts and Remedies Are Cumulative Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or reme- dies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. Section 6.4 Inaction Not a Waiver of Default Any failures or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive either such party of its right to institute and maintain any actions Or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. Section 6.5 pamaaes If a default is not fully cured by the defaulting party as provided in Section 6.1 after the close of escrow for the Site, the defaulting party shall be liable to the claimant for any damages caused by such default, and the claimant may thereafter (but not before) commence an action for damages against the other party with respect to such default. Prior to the close of escrow for the Site neither party shall be entitled to damages for a default of the other. Section 6.6 Specific Performance If a default under this Agreement is not fully cured by the defaulting party as provided in Section 6.1, the nondefaulting party at its option may thereafter (but not before) commence an action for specific performance of terms of this Agreement. Section 6.7 Termination Prior to the Commission Conveyance A. Termination by the Developer Prior to the conveyance of the Site to Developer, the Developer may terminate this Agreement and its obligations thereunder (subject to Paragraph D below) for any of the following reasons: -23- 1. the Commission does not convey title and possession of Site in the manner and condition and by the date provided in this Agreement; 2. the Commission defaults in the performance of any material obligation hereunder and such failure is not cured within the time required by this Agreement; or 3. Commission does not agree to remove title exceptions as provided in Section 2.6; or 4. Developer disapproves the results of the environmental investigation as provided in Section 2.7; or 4461.13 11/12/92 5. Commission is unable to acquire Parcel B the Site; or 6. the Commission is unable to obtain the required approvals for transfer of the public parking rights from Area 1 of Parking District No. 1, Assessment District No. 66 to the proposed parking structure on the Site; or 7. City of Downey approves another motion picture theater use within the City; or 8. Commission does not agree to remove title exceptions subject to Developer's right to remove such exceptions as provided in Section 2.6. B. Termination by the commission Prior to the conveyance of the Site to Developer, the Commission may terminate this Agreement and its obligations thereunder (subject to Paragraph D below) for any of the following reasons: 1. prior to the conveyance of the Site the Developer (or any successor in interest) assigns or attempts to assign the Agreement or any rights therein or in the Site in violation of this Agreement; or 2. prior to conveyance of the Site there is a change in the ownership or management of the Developer contrary to the provisions of Section 1.7 hereof; or 3. Commission disapproves the results of the environmental investigation as provided in Section -24- 4461.13 11/12/92 2.7 if remediation of the Site exceeds the cap of Twenty Five Thousand Dollars ($25,000.00) for such remediation; or 4. Commission is unable to acquire Parcel B of the Site; or 5. the Developer does not submit certificates of insurance, construction plans, drawings and relat- ed documents as required by this Agreement, in the manner and by the dates respectively provided in this Agreement; or 6. the Developer does not take title to Site under tender of conveyance by the Commission pursuant to this Agreement; or 7. the Commission is unable to obtain the required approvals for transfer of the public parking rights from Area 1 of Parking District No. 1, Assessment District No. 66 to the proposed parking structure on the Site; or 8. The Developer fails to fulfill the conditions precedent to conveyance of the Site pursuant to Section 2.3; or 9. Developer is unable to obtain evidence of financing as required by Section 2.4 C. procedure for Termination In order to terminate this Agreement prior to convey- ance of the Site to Developer for any reason set forth in Paragraph A or B above, the party proposing to terminate shall deliver written notice of its intent to do at least fifteen (15) days prior to the proposed date of termination and stating the reasons for termination. The party proposing to terminate the Agreement may withdraw the proposed termination or extend the effective date at any time prior to the effective date of the termination. D. Conseauences of Termination In the event of termination of this Agreement in accordance with this Section, neither party shall have any rights or recourse against the other, except 1) in the case of termina- tion pursuant to Paragraph A.2., B.1, B.2, B.5, 8.6 or 8.8, in which event the terminating party shall be entitled to such legal remedies as are available under this Agreement. -25- • In the event that on February 15, 1994 Developer has not accepted conveyance of the Site from the Commission, then all Developer's rights and interests in the Project, this Agreement shall terminate and be of no further force and effect. The parties agree that Section 5.3, Enforced Delay, shall not excuse, prevent, delay or otherwise affect this termination date and that this termination date shall apply regardless of the reasons for delay and regardless of the good faith efforts of the parties to meet this deadline. 4461.13 11/12/92 E. Full Termination of Developers Rights and Interests as of February 15. 1994. Section 6.8 Power of Termination and Right of Reentry and Revestina of Title in the Commission After Commission Conveyance A. The Commission has the additional right of termination, at its option, to reenter and take possession of the Site, with all improvements thereon, and terminate and revest in the Commission the estate conveyed to the Developer if prior to the issuance of the Certificate of Completion, the Developer shall: 1. Fail to start the construction of the improvements as required by this Agreement; or 2. Abandon or substantially suspend construction of the improvements required by this Agreement for a period of thirty (30) days after written notice thereof from the Executive Director Commission; or 3. Transfer or suffer any involuntary transfer of the Site or any part thereof in violation of this Agreement; or 4. Commit any other material default pursuant to this Agreement which is not cured as required by this Agreement. B. Such power of termination and the right to reenter, terminate and revest shall not be exercised with respect to any portion of the Site as to which a Certificate of Completion has been issued for all improvements to be constructed on such portion of the Site pursuant to this Agreement. C. Such power of termination and the right to reenter, terminate and revest shall further be subject to and be limited by and shall not defeat, render invalid or limit: -26- 4461.13 11/12/92 1. Any mortgage or deed of trust permitted by this Agreement; or 2. Any rights or interests provided in this Agreement for the protection of the holders of such mortgag- es or deed of trust. D. In the event the notice of termination and reentry is served upon Developer during the time foreclosure proceedings with respect to the Site are pending against the Developer with regard to a mortgage or deed of trust authorized by this Agreement, Agency agrees not to proceed with the termination and reentry for a period of six (6) months after the date of such notice in order to allow the holder of the mortgage or deed of trust an adequate opportunity to cure the default or to sell the Site to a qualified purchaser, provided, however that the holder of the mortgage or deed of trust is proceeding in a diligent and reasonable manner to cure the default or find a qualified purchaser for the Site in accordance with the terms of this Agreement. E. The Grant Deed (Exhibit No. 4A) shall contain appropriate reference and provision to give effect to the Commission's right as set forth in this Section, under specified circumstances prior to recordation of the Certificate of Comple- tion, to reenter and take possession of the Site, with all improvements thereon, and to terminate and revest in the Commission the estate conveyed to the Developer. F. Upon the revesting in the Commission of title to the Site as provided in this Section, the Commission shall, pursuant to its responsibilities under state law, use its best efforts to resell the Site in such manner as the Commission shall find feasible and consistent with the objectives of such law and of the Redevelopment Plan, as it may be amended, to a qualified and responsible party or parties (as determined by the Commission) who will assume the obligation of making or completing the improvements, or such other improvements in their stead as shall be satisfactory to the Commission and in accordance with the uses specified for such Site or part thereof in the Redevelopment Plan. Upon such resale of the Site, the proceeds thereof shall be applied: 1. First, any encumbrances or liens permitted by this Agreement existing on the Site at the time of revesting of title thereto in the Commission; and 2. Second, to reimburse the Commission, for all costs and expenses incurred by the Commission, includ- ing, but not limited to, any expenditures by the Commission or the City in connection with the -27- 4461.13 11/12/92 recapture, management and resale of the Site or part thereof (but less any income derived by the Commission from the Site or part thereof in connection with such management); all taxes, assessments and water or sewer charges with respect to the Site or part thereof which the Developer has not paid (or, in the event the Site is exempt from taxation or assessment or such charges during the period of ownership thereof by the Commission, an amount, if paid, equal to such taxes, assessments, or charges as would have been payable if the Site were not so exempt); any expenditures made or obligations incurred with respect to the making or completion of the improvements or any part thereof on the Site, or part thereof; and any amounts otherwise owing the Commission, the Developer and its successor or transferee; 3. Third, to pay to the Developer, or its successor or transferee, the balance then remaining. ARTICLE VII SPECIAL PROVISIONS Section 7.1 Submission of Documents to the Commission for Approval Whenever this Agreement requires the Developer to submit plans, drawings or other documents to the Commission for approval, which shall be deemed approved if not acted on by the Commission within the specified time, said plans, drawings or other documents shall be accompanied by a letter stating that they are being submitted and will be deemed approved unless rejected by the Commission within the stated time. If there is no time specified herein for such Commission action, the Develop- er may submit a letter requiring Commission approval or rejection of documents within thirty (30) days after submission to the Commission or such documents shall be deemed approved. Section 7.2 bmendments to this Aareement The Developer and the Commission agree to mutually consider and to negotiate in good faith such reasonable requests for amendments to this Agreement which may be made by lending institutions, or Commission's counsel or financial consultants, provided said requests are consistent with this Agreement and -28- 4461.13 11/12/92 would not substantially alter the basic business terms included herein. Section 7.3 Real Estate Commission Commission has not engaged any brokers, agents or finders with respect to this transaction or the Site. Developer has retained Kristoff - Manarino in connection with the Site and the project described herein and agrees to be solely responsible for and to pay the commission for Kristoff - Manarino. Developer shall pay all other claims of brokers, agents or finders, licensed or unlicensed, and all claims of real estate or other consultants Developer has or is alleged to have retained for the Site or the project which exist or may arise with respect to the Site or project. Commission shall not be liable for any such fees and Developer shall indemnify Commission, its officers, employees and agents, from any and all costs, liabilities or judgments, including attorneys' fees, incurred in defending or paying any such claims. Section 7.4 Entire Agreement. Waivers & General A. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. This Agreement includes pages 1 through 31 and Exhibits 1 through 5, which constitutes the entire understanding and agreement of the parties. B. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof. C. All amendments hereto must be in writing executed by the appropriate authorities of the Commission and the Developer. D. In any circumstance where under this Agreement either party is required to approve or disapprove any matter, approval shall not be unreasonably withheld. E. Both Parties are sophisticated buyers and sellers of real property and have participated in the drafting of this Agreement. -29- 4461.13 11112!92 This Agreement, when executed by the Developer and delivered to the Commission, must be authorized, executed and delivered by the Commission on or before thirty (30) days after signing and delivery of this Agreement by Developer or this Agreement shall be void, except to the extent that the Developer shall consent in writing to a further extension of time for the authorization, execution and delivery of this Agreement. The date of this Agreement shall be the date when it shall have been signed by the Commission. IN WITNESS WHEREOF, the Commission and the Developer have signed this Agreement as of the date first written above. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF DOWNEY By: Diane P. Boggs Chairperson ATTEST: Section 7.5 Time For Acceptance Of Agreement Bv, Commission Judith E. McDonnell Secretary APPROVED AS TO FORM: Peter M. Thorson Counsel to the Commission KRIKORIAN PREMIERE THEATRES, INC. By: George Krikorian President By: Secretary -30- 4461.13 11/12!92 STATE OF CALIFORNIA COUNTY OF LOS ANGELES On , 1992, before me, the undersigned, a Notary Public in and for said state, personally appeared DIANE P. BOGGS and JUDITH E. MCDONNELL, known to me to the persons who executed the within instrument as Chairman and Secretary, respectively, of the COMMUNITY DEVELOPMENT COMMISSION, CITY OF DOWNEY, CALIFORNIA, the public agency therein named, and acknowledged to me that such Commission executed the within instrument pursuant to its bylaws or a resolution of its members. WITNESS my hand and official seal. STATE OF CALIFORNIA COUNTY OF LOS ANGELES ss. * * * * * * * * ss. On , 19 before me, the undersigned, a Notary Public in and for said State, personally appeared GEORGE KRIKORIAN, known to me to be the President of and , known to me to be the Secretary of the corporation that executed the within instrument, known to me to be the persons who executed the within instrument on behalf of KRIKORIAN PREMIERE THEATRES, INC., the Corporation therein named, and acknowledged to me that such Corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors. WITNESS my hand and official seal. -31- Name (typed or printed) Name (typed or printed) -� WITNESS my hand and official seal. 4461.13 11/12/92 STATE OF CALIFORNIA COUNTY OF On , 19, before me, the undersigned, a Notary Public in and for said State, personally appeared PETER M. THORSON, personally known to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. (SEAL) ) ss. Notary Public in and for said State -32- W Q Q z W • 1 4 J EXHIBIT NO. 1 SITE MAP THIRD ST. SECOND ST. J W z EXHIBIT NO. 1 EXHIBIT NO. 2 LEGAL DESCRIPTION OF SITE LEGAL DESCRIPTION OF PARCEL A That portion of Block 14, Tract of the Downey land Associa- tion, in the City of Downey, County of Los Angeles, State of California, as shown on map recorded in Book 2, page 434, of Miscellaneous Records, in the office of the Registrar- Recorder of said County, which lies within Lot 138, as shown on map filed in Book 4, pages 76, 77, and 78, of Official Maps, in the office of said Registrar- Recorder. Excepting therefrom those portions thereof which lie within those certain parcels of land described as Parcels A and B in a resolution of the Board of Supervisors of said County, a certi- fied copy of which was recorded as Document No. 4051, on April 20, 1965, in Book D2875, page 245, in the office of said Regis- trar- Recorder. LEGAL DESCRIPTION OF PARCEL B Parcel 1 That portion of block 14 of the tract of the Downey Land Associa- tion, in the city of Downey, county of Los Angeles, state of California, as per map recorded in book 2 page 434 of Miscella- neous Records, in the office of the county recorder of said coun- ty, it appearing that said block 14 is divided into lots in the same relative positions and sizes as shown on block 10 of the above mentioned map by recital in a deed of a portion of said block 14 from John G. Downey, recorded on June 2, 1887, as In- strument No. 267 - in book 218 page 531 of Deeds, records of said county, described as follows: Beginning at a point in the northeasterly line of 2nd Street, 60 feet wide, distant southeasterly along said northeasterly line 215.00 feet from the southeasterly line of La Reina Avenue, 60 feet wide (formerly Depot Street) said point being the most west- erly corner of land described in deed to Zella H. Buck, recorded on January 23, 1917, as Instrument No. 26, in book 6351 page 239 of Deeds, records of said county; thence along said northeasterly line of 2nd .Street South 57° 09' 30 East 40.00 feet to the most southerly corner of said land described in said deed; thence along the southeasterly line of said land described in said deed North 32° 50' 30" East 125.00 feet to the most easterly corner of land described in said deed; thence along the northeasterly line of said land described in said deed North 57° 09' 30" West 40.00 feet to the most northerly corner of said land described in said -1- EXHIBIT NO. 2 • deed; thence South 32° 50' 30" West 125.00 feet to the point of beginning. Parcel 2 That portion of block 14 of the tract of the Downey Land Associa- tion, in the city of Downey, county of Los Angeles, state of California, as per map recorded in book 2 page 434 of Miscella- neous Records, in the office of the county recorder of said coun- ty, described as follows: Beginning at a point in the north line of Second Street, 115 feet easterly along said line from the easterly line of Depot Street, now La Reina Avenue; thence easterly along said line of Second Street, 100 feet; thence at right angles northerly 125 feet, more or less, to the south line of land formerly owned by W.C. Smith; thence westerly along said last mentioned line, 100 feet; thence at right angles southerly to the point of beginning. Parcel 3 That portion of block 14 of the tract of the Downey Land Associa- tion, in the city of Downey, county of Los Angeles, state of California, as per map recorded in book 2 page 434 of Miscella- neous Records, in the office of the county recorder of said coun- ty, described as follows: Beginning at the southwesterly corner of said block 14; thence along Depot Street, North 32° 54' 10" East 125 feet to the south- westerly corner of the land described in the deed to W. C. Smith, recorded in book 56 page 499 of Deeds; thence along the southerly line of said land of Smith, 57° 9' 30" East 115 feet to the northwesterly corner of land described in deed to D. P. Smart, recorded in book 61 page 279 of Deeds; thence southwesterly along the northwesterly line of said land of Smart, 125 feet to the northeasterly line of Second Street; thence along said Second Street, North 57° 9' 30" West 115 feet to the point of beginning. -2- EXHIBIT NO. 2 4461.13 1I/12/92 1. Execution of Aareement Agreement shall be authorized, executed and delivered by Developer to Commission. 2. Approval - Basic Conceot Drawtnas and Aareement Commission shall approve, conditionally approve, or disapprove the Basic Concept Drawings. EXHIBIT NO. 3 SCHEDULE OF PERFORMANCE On or before November 17, 1992 On or before November 10, 1992 (Approved) 3. Financina Proaress Report On or before March 30, 1993 Developer shall submit a Financing Progress Report to the Commission which provides evidence of commitments from lenders for financing of the Project and evidence of Developer's sources of equity for the financing, as well as the Developer's progress in securing financing for the Project. 4. Final Drawings and Plans On or before July 22, 1993 Developer shall submit final drawings and plans to City for issuance of building permits 5. Financing Commitments. On or before October 30, 1993 Developer shall obtain a commitment for financing the Project pursuant to Section 2.4. 6. Issuance of Buildjna Permits On or before December 7, 1993 Subject to fulfillment of this Agreement, and subject to all applicable City -1- EXHIBIT NO. 3 4461.13 Codes, City shall issue building permits with respect to the project. 7. Conveyance of Title or Possessory Interest Commission shall convey possession and /or title to Developer of Site. 11/11/92 On or before December 8, 1993 8. Commencement of Construction On or before February 15, 1994 Developer shall commence construction of the project. 9. Completion of Construction On or before November 15, 1994 Developer shall complete the construction of the Project on the Site. -2- EXHIBIT NO. 3 EXHIBIT NO. 4 ESCROW INSTRUCTIONS The Disposition and Development Agreement ( "Agreement ") By and Between the Community Development Commission of the City of Downey ( "Seller ") and Krikorian Theatres, Inc., a California Corporation ( "Buyer "), and these Escrow Instructions are to be considered as escrow instructions to the Escrow Agent, and Escrow Agent is authorized to act hereunder insofar as closing escrow is concerned. 4461.13 11/12/92 1. The Closing Date for escrow on the properties to be conveyed shall be mutually agreed by the parties at the opening of escrow for that property. 2. As soon as possible after opening of escrow, Buyer will deposit an executed deed, in substantially the form as attached hereto as Exhibits 4A with Escrow Agent on Seller's behalf. Buyer agrees to deposit the purchase price upon demand of Escrow Agent. Buyer and Seller agree to deposit with Escrow Agent any additional instruments as may be necessary to complete this transaction. 3. Insurance policies for fire or casualty are not to be transferred, and Seller shall cancel its own policies after close of escrow. 4. All funds received in this escrow shall be deposited with other escrow funds in a general escrow trust account(s) and may be transferred to any other such escrow trust account in any State or National Bank doing business in the State of California. All disbursements shall be made by check for such accounts. 5. Escrow agent is authorized and instructed to comply with the following tax adjustment procedure: (i) Pay and charge Seller for any unpaid delinquent taxes and /or any penalties and interest thereon, and for any delinquent or non - delinquent assessments or bonds against the property; (ii) Escrow is not to be concerned with proration of Seller's taxes for current fiscal year if this escrow closes between July 1 and November 1 unless current tax information is available for title insurer. In the event said tax information is available, Seller's taxes shall be prorated in accordance with Paragraph (iii) below. From July 1 and the ensuing period, when tax information is not available, Seller's prorata portion of taxes due to close of escrow, -1- EXHIBIT NO. 4 4461.13 11/12/92 shall be cleared and paid by Seller, outside of escrow pursuant to provisions of Section 5082 through 5090 of the Revenue and Taxation Code of the State of California. If Escrow Agent and /or Title Insurer is unwilling to insure the title free and clear of such taxes as a result of that procedure, then in lieu thereof, taxes shall be prorated based on the latest available tax statement. (iii) From the date that tax information is available, as per Paragraph (ii) above, up to and including June 30th, Seller's current taxes, if unpaid, shall be prorated to date of close of escrow on the basis of a 365 -day year in accordance with Tax Collector's proration requirements together with penalties and interest if said current taxes are unpaid after December 10 and April 10. (iv) Any taxes which have been paid by Seller, prior to the opening of this escrow, shall not be prorated between Buyer and Seller, but Seller shall have the sole right, after close of escrow to apply to the County Tax Collector of said County for refund of such taxes which may be due Seller for the period after Buyer's acquisition pursuant to Revenue and Taxation Code Section 5096.7. 6. Escrow agent is authorized to, and shall: (i) Pay and charge Seller for any amount necessary to place title in the condition necessary to satisfy Agreement; (ii) Pay and charge Buyer and Seller for any escrow fees, charges and costs payable under Of this Agreement; (iii) Disburse funds and deliver deed when conditions of this escrow have been fulfilled by Buyer and Seller. (iv) Obtain the necessary certification or withhold the necessary funds from purchase price pursuant to Internal Revenue Code Section 1445. (v) Obtain all necessary certifications or other documents required by State or Federal law. 7. Recordation of instruments delivered through this escrow is authorized if necessary or proper in the issuance of said policy of title insurance. All time limits within which any matter herein specified is to be performed may be extended by mutual agreement of parties hereto. Any amendment of, or supplement to, any instructions must be in writing. -2- EXHIBIT NO. 4 4461.13 11/12/92 8. Time is of the essence in these instructions and escrow is to close as soon as possible in accordance with this Agreement. 9. A. If Escrow Agent receives notice of termination of this escrow from either party as provided in the Agreement, Escrow Agent shall promptly notify in writing the party not terminating the escrow of Escrow Agent's receipt of the notice to terminate. After the expiration of ten (10) business days from the date Escrow Agent delivers such notice, Escrow Agent shall return to each of the parties the funds and documents deposited in escrow unless Escrow Agent receives written objection from the party not terminating the escrow. B. In the event of such an objection, Escrow Agent shall retain all funds and documents until it receives written instructions from both parties as to the disposition of the funds or documents or a certified copy of a final judgment or order of a court of competent jurisdiction resolving the rights of the parties. A judgment or order shall be deemed final when all time for appeal, rehearing or other comparable procedure has expired without any such proceeding having been commenced. C. Any termination of the escrow shall be without prejudice to the rights either party may have against the other for any breach of covenant or warranty or any misrepresentation under this Agreement. 10. Each party shall share equally all usual fees, charges and costs which arise in this escrow. 11. The parties shall execute such additional instructions as requested by the Escrow Agent not inconsistent with the provisions of the Agreement and these Escrow Instructions and which are necessary or convenient to carry out the intent of the Agreement. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF DOWNEY (SELLER) GERALD CATON Executive Director -3- EXHIBIT NO. 4 4461.13 11/12/92 KRIKORIAN PREMIERE THEATRES, INC. (BUYER) By: President -4- EXHIBIT NO. 4 4461.13 11/12/92 Recording Requested by: and after recordation mail to: Executive Director Downey Community Development Commission 11111 Brookshire Avenue Downey, California 90241 2. Use Restrictions EXHIBIT NO. 4A GRANT DEED GRANT DEED For valuable consideration, the receipt of which is hereby acknowledged, The COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF DOWNEY, a public body, corporate and politic, of the State of California (the "Grantor "), acting to carry out the Redevelopment Plan (the "Redevelopment Plan ") for the Downey Redevelopment Project under the Community Redevelopment Law of the State of California, hereby grants to KRIKORIAN PREMIERE THEATRES, INC., a California corporation (the "Grantee "), the real property (the "Site ") legally described in the document attached hereto, labeled Exhibit A, and incorporated herein by this reference, subject to the following covenants, conditions and restrictions:. 1. Conveyance Subiect to Disposition and Development Agreement and Redevelopment Plan. The Site is conveyed subject to the Redevelopment Plan and pursuant to a Disposition and Development Agreement entered into by and among the Grantor and the Grantee, dated November 10, 1992 (herein referred to as the "Agreement "). Said Agreement is incorporated herein by reference and supersedes any conflicting provisions in this Grant Deed. (a) The Grantee covenants by and for itself, its heirs, executors, administrators and assigns, and every successor in interest to the Site or any part thereof and all persons claiming under or through them, that during construction and -1- EXHIBIT NO. 4A 4461.13 11/12/92 thereafter, the Grantee, and such successors and such assignees, shall use, and devote the Site to use, as a multi -plex motion picture theater of not less than ten screens, showing quality motion pictures seating,with a total of not more than 2,500 seats, and a four -level parking structure containing not less than 355 parking stalls in compliance with the terms of the Agreement and this Grant Deed. Uses incidental to the motion picture theater consisting of a) the sale of confections, soft drinks, and other concession stand food items as are customarily sold in a motion picture theater, b) a gourmet eatery, c) sale of video tapes and movie memorabilia, and d) operation of coin or token operated amusement machines, shall also be permitted. (b) The Grantee covenants by and for itself, its heirs, executors, administrators and assigns, and every successor in interest to the Site or any part thereof and all persons claiming under or through them, that the parking structure shall be available at all times for public parking without charge to the motorist or vehicle and without regard to whether the occupants of the vehicle will patronize the theater complex. Grantee shall maintain said Parking Structure in accordance with plans approved pursuant to the Agreement and in a neat and clean condition and continuous state of good repair. (c) The Grantee covenants by and for itself, its heirs, executors, administrators and assigns, and every successor in interest to the Site or any part thereof and all persons claiming under or through them, further agrees to operate the theater in such a manner as to provide the broadest appeal to the public and therefore agrees not to show motion pictures 1) which are or would be rated "X" by the Academy of Motion Picture Arts and Sciences under its current rating system or 2) whose primary content is the depiction of acts of sexual intercourse or oral copulation . 3. Prohibition on Discrimination (a) The Grantee covenants by and for itself, its heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Grantee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Site. -2- EXHIBIT NO. 4A 4461.13 11/12/92 (b) All deeds, leases or contracts made relative to the Site, improvements thereon or any part thereof, shall contain or be subject to substantially the following nondiscrimination clauses: (1) In deeds: "The grantee herein covenants by and for himself, his heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the land herein conveyed. The foregoing covenants shall run with the land." (2) In leases: "The lessee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or through him, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the land herein leased, nor shall the lessee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy, of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." (3) In contracts: "There shall be no discrimination against or segregation of, any -3- EXHIBIT NO. 4A 4461.13 II person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land." 4. Restriction on Transfer and Sale of Site (a) The qualifications and identity of Grantee is of particular concern to the Grantor. It is because of its qualifications and identity that the Grantor has entered into the Agreement with the Grantee. Therefore, no voluntary or involuntary successor in interest of the Grantee shall acquire any rights or powers under the Agreement or this Grant Deed except as expressly set forth herein. (b) The Grantee shall not assign all or any of its rights or duties under the Agreement, including any transfer of ownership or change of control of the Grantee, without the prior written approval of the Grantor, which consent the Grantor shall not unreasonably withhold provided the Grantor determines that the successor is similarly qualified and has specifically agreed in writing to be bound by the provisions of the Agreement. Additionally, the Grantor hereby approves the assignment of the Agreement and /or the conveyance of the Site by Grantee to an affiliate, subsidiary corporation or nominee of Grantee provided that George Krikorian or Grantee holds not less than fifty one percent (51 %) of the voting shares of such an entity if a corporation or a controlling interest if other than a corporation and such entity specifically agrees to be bound by the terms of this Agreement and provided further that Grantee shall remain secondarily liable in the event such affiliate, subsidiary corporation or nominee fails to fulfill the obligations of Grantee pursuant to the Agreement. 5. Grantor's Power of Termination and R,aht to Reenter Site (a) This conveyance is made by Grantor and accepted by Grantee, subject to the Grantor's power of termination and right, at its option, to reenter and take possession of the Site, with -4- EXHIBIT NO. 4A all improvements thereon, and terminate and revest in the Grantor the estate conveyed to the Grantee if prior to the issuance of the Certificate of Completion, the Grantee shall: (1) Fail to start the construction of the improvements as required by the Agreement; or (2) Abandon or substantially suspend construction of the improvements required by the Agreement for a period of thirty (30) days after written notice thereof from the Executive Director of Grantor; or (3) Transfer or suffer any involuntary transfer of the Site or any part thereof in violation of the Agreement; or (4) Commit any other material default pursuant to the Agreement which is not cured as required by the Agreement. (b) Such power of termination and the right to reenter, terminate and revest shall not be exercised with respect to any portion of the Site as to which a Certificate of Completion has issued for all improvements to be constructed on such portion of the Site pursuant to the Agreement. (c) Such power of termination and the right to reenter, terminate and revest shall further be subject to and be limited by and shall not defeat, render invalid or limit: (1) Any mortgage or deed of trust permitted by the Agreement; or (2) Any rights or interests provided in the Agreement for the protection of the holders of such mortgages or deed of trust. (d) In the event the notice of termination and reentry is served upon Grantee during the time foreclosure proceedings with respect to the Site are pending against the Grantee with regard to a mortgage or deed of trust authorized by the Agreement, Grantor agrees not to proceed with the termination and reentry for a period of six (6) months after the date of such notice in order to allow the holder of the mortgage or deed of trust an adequate opportunity to cure the default or to sell the Site to a qualified purchaser, provided, however that the holder of the mortgage or deed of trust is proceeding in a diligent and reasonable manner to cure the default or find a qualified purchaser for the Site in accordance with the terms of the Agreement. 4461.13 11/12/92 -5- EXHIBIT NO. 4A 4461.13 1 (e) Upon the revesting in the Grantor of title to the Site as provided in this Section, the Grantor shall, pursuant to its responsibilities under state law, use its best efforts to resell the Site in such manner as the Grantor shall find feasible and consistent with the objectives of such law and of the Redevelopment Plan, as it may be amended, to a qualified and responsible party or parties (as determined by the Grantor) who will assume the obligation of making or completing the improvements, or such other improvements in their stead as shall be satisfactory to the Grantor and in accordance with the uses specified for such Site or part thereof in the Redevelopment Plan. Upon such resale of the Site, the proceeds thereof shall be applied: (1) First, any encumbrances or liens permitted by the Agreement existing on the Site at the time of revesting of title thereto in the Grantor; and (2) Second, to reimburse the Grantor, for all costs and expenses incurred by the Grantor, including, but not limited to, any expenditures by the Grantor or the City in connection with the recapture, management and resale of the Site or part thereof (but less any income derived by the Grantor from the Site or part thereof in connection with such management); all taxes, assessments and water or sewer charges with respect to the Site or part thereof which the Grantee has not paid (or, in the event the Site is exempt from taxation or assessment or such charges during the period of ownership thereof by the Grantor, an amount, if paid, equal to such taxes, assessments, or charges as would have been payable if the Site were not so exempt); any expenditures made or obligations incurred with respect to the making or completion of the improvements or any part thereof on the Site, or part thereof; and any amounts otherwise owing the Grantor, the Grantee and its successor or transferee; and (3) Third, to pay to the Grantee, or its successor or transferee, the balance then remaining. -6- EXHIBIT NO. 4A 6. Term and Enforcement of Covenants (a) Of the covenants which have been established pursuant to this Grant Deed in Paragraphs 2, 3, and 4, the same shall be deemed to be covenants running with the land for the benefit of the Project Area and the Grantor in carrying out its statutory responsibilities under California Redevelopment Act (Health and Safety Code Sections 33000 et seq.) to implement the Redevelopment Plan. Such covenants shall run in favor of the Grantor for the entire period during which such covenants shall be in force and effect, without regard to whether the Grantor is or remains an owner of any land or interest therein to which such covenants relate. 4161.13 11/12/92 (b) Covenants relating to construction of improvements on the property shall expire upon the issuance by Grantor of a Certificate of Completion as to the Property. Covenants relating to the use of the Property and improvements thereon, the covenants relating to maintenance in this Grant Deed and covenants against discrimination contained in this Grant Deed shall remain in perpetuity. (c) The Grantor, in the event of any breach of any such covenants, shall have the right to exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. The covenants contained in this Grant Deed shall be for the benefit of and shall be enforceable only by the Grantor and its successors. IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be executed on their behalf by their respective officers thereunto duly authorized, this day of , 1993. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF DOWNEY By: Chairperson -7- EXHIBIT NO. 4A 4461.13 11/17/92 ATTEST: Judith E. McDonnell Secretary APPROVED AS TO FORM Peter M. Thorson General Counsel The provisions of this Grant Deed are hereby approved and accepted. KRIKORIAN PREMIERE THEATRES, INC. By: George Krikorian President By: Secretary -8- EXHIBIT NO. 4A On this day of , 1992, before me, a Notary Public, State of California, duly commissioned and sworn, personally appeared and JUDITH E. MCDONNELL, known to me to be the Chairman and Secretary, respectively, of the Community Development Commission of the City of Downey, a public corporation, that executed the within instrument on behalf of said public corporation therein named, and acknowledged to me that such public corporation executed the within instrument pursuant to a resolution of the members of said public corporation. STATE OF CALIFORNIA ) ss. COUNTY OF LOS ANGELES ) IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year in this certificate first above written. Notary Public State of California STATE OF CALIFORNIA ) ss. COUNTY OF LOS ANGELES ) On this day of , 1992, before me, the undersigned, Notary Public, in and for said State, duly personally appeared GEORGE KRIKORIAN, known to me to be the President of and , known to me to be the Secretary of the corporation that executed the within instrument, known to me to be the persons who executed the within instrument on behalf of Krikorian Theatres, Inc., the Corporation therein named, and acknowledged to me that such Corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors. WITNESS my hand and official seal. Name (typed or printed) 461.13 uilvn -9- EXHIBIT NO. 4A 4461.13 11/12192 STATE OF CALIFORNIA COUNTY OF ss. On , 19 before me, the undersigned, a Notary Public in and for said State, personally appeared PETER M. THORSON, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same. (SEAL) WITNESS my hand and official seal. Notary Public in and for said State -10- EXHIBIT NO. 4A EXHIBIT A TO GRANT DEED LEGAL DESCRIPTION OF SITE LEGAL DESCRIPTION OF PARCEL A That portion of Block 14, Tract of the Downey land Associa- tion, in the City of Downey, County of Los Angeles, State of California, as shown on map recorded in Book 2, page 434, of Miscellaneous Records, in the office of the Registrar- Recorder of said County, which lies within Lot 138, as shown on map filed in Book 4, pages 76, 77, and 78, of Official Maps, in the office of said Registrar- Recorder. Excepting therefrom those portions thereof which lie within those certain parcels of land described as Parcels A and B in a resolution of the Board of Supervisors of said County, a certi- fied copy of which was recorded as Document No. 4051, on April 20, 1965, in Book D2875, page 245, in the office of said Regis- trar- Recorder. LEGAL DESCRIPTION OF PARCEL B parcel 1 That portion of block 14 of the tract of the Downey Land Associa- tion, in the city of Downey, county of Los Angeles, state of California, as per map recorded in book 2 page 434 of Miscella- neous Records, in the office of the county recorder of said coun- ty, it appearing that said block 14 is divided into lots in the same relative positions and sizes as shown on block 10 of the above mentioned map by recital in a deed of a portion of said block 14 from John G. Downey, recorded on June 2, 1887, as In- strument No. 267 - in book 218 page 531 of Deeds, records of said county, described as follows: Beginning at a point in the northeasterly line of 2nd Street, 60 feet wide, distant southeasterly along said northeasterly line 215.00 feet from the southeasterly line of La Reins Avenue, 60 feet wide (formerly Depot Street) said point being the most west- erly corner of land described in deed to Zella H. Buck, recorded on January 23, 1917, as Instrument No. 26, in book 6351 page 239 of Deeds, records of said county; thence along said northeasterly line of 2nd Street South 57° 09' 30 East 40.00 feet to the most southerly corner of said land described in said deed; thence along the southeasterly line of said land described in said deed North 32° 50' 30" East 125.00 feet to the most easterly corner of land described in said deed; thence along the northeasterly line of said land described in said deed North 57° 09' 30" West 40.00 feet to the most northerly corner of said land described in said -11- EXHIBIT NO. 4A deed; thence South 32° 50' 30" West 125.00 feet to the point of beginning. Parcel a That portion of block 14 of the tract of the Downey Land Associa- tion, in the city of Downey, county of Los Angeles, state of California, as per map recorded in book 2 page 434 of Miscella- neous Records, in the office of the county recorder of said coun- ty, described as follows: Beginning at a point in the north line of Second Street, 115 feet easterly along said line from the easterly line of Depot Street, now La Reina Avenue; thence easterly along said line of Second Street, 100 feet; thence at right angles northerly 125 feet, more or less, to the south line of land formerly owned by W.C. Smith; thence westerly along said last mentioned line, 100 feet; thence at right angles southerly to the point of beginning. Parcel 3 That portion of block 14 of the tract of the Downey Land Associa- tion, in the city of Downey, county of Los Angeles, state of California, as per map recorded in book 2 page 434 of Miscella- neous Records, in the office of the county recorder of said coun- ty, described as follows: Beginning at the southwesterly corner of said block 14; thence along Depot Street, North 32° 54' 10" East 125 feet to the south- westerly corner of the land described in the deed to W. C. Smith, recorded in book 56 page 499 of Deeds; thence along the southerly line of said land of Smith, 57° 9' 30" East 115 feet to the northwesterly corner of land described in deed to D. P. Smart, recorded in book 61 page 279 of Deeds; thence southwesterly along the northwesterly line of said land of Smart, 125 feet to the northeasterly line of Second Street; thence along said Second Street, North 57° 9' 30" West 115 feet to the point of beginning. -12- EXHIBIT NO. 4A 4461.13 11/12/92 I. GENERAL DESCRIPTION II. DEVELOPMENT B. Parkina EXHIBIT NO. 5 SCOPE OF DEVELOPMENT The Site is approximately 77,537 square feet. It is generally located at the Southeast corner of LaReina Avenue and 3rd Street in Downey, California. Developer shall develop a 38,000 to 40,000 square foot multi -plex motion picture theater of not less than ten screens, with a total of not more than 2,500 seats, and a four (4) level parking structure containing not less than three hundred fifty five (355) parking stalls for public use which shall be available at all times for public parking free of charge. Developer, its architect, engineer, and contractor shall work closely with the Commission's staff and the City's planning staff to coordinate design, color, and landscaping details which are subject to Commission approval. A. Architecture and Desian The improvements shall be of high architectural quality, and shall reflect the state of the art in architectural design of motion picture theaters in both aesthetics and function. Color architectural renderings shall be submitted for all elevations of both the theater building and the parking structure along with the other documents required to be submitted with the Final Drawings and Plans at the time require by Item 5 of the Schedule of Performance. 1. Developer will construct a four (4) level parking structure with not less than three hundred fifty -five (355) parking stalls which shall be available at all times for public parking. The parking structure shall be available at all times for public parking without charge to the motorist or vehicle and without regard to whether the occupants of the vehicle will patronize the theater complex. 2. The parking structure shall be of high architectural quality incorporating design elements enhancing the aesthetic quality of the structure and making it compatible with -1- EXHIBIT NO. 5 4461.13 11/12192 the high architectural quality of the adjacent theater building. 3. The parking structure design shall also incorporate design elements to enhance the safety, and perception of safety, of persons using the structure. The Parking Structure shall have the following safety features: a. Minimum clearance of eight feet ten inches (8' 10 ") for the first level of parking; b. bright lighting in all areas of parking structure at the following intensity: 80 -100 footcandles in entrance areas; 10 -15 footcandles in drive aisles; and 5 -10 footcandles over parked vehicles; c. all stairwells shall be open and visible to the street; d. elevator(s) shall be glass enclosed; e. the Parking Structure shall be patrolled by at least one (1) security guard after dusk daily during the hours of operation of the theater; and f. the first floor of the Parking Structure shall be open to and visible to the streets adjacent to it. 4. The parking structure shall also have adequate signing to advise persons in the area that the structure provides for public parking. C. yandscaninq As part of the Final Drawings and plans to be submitted within the time required by Item 4 of the Schedule of Performance, the Developer shall also submit a Landscape Plan to be approved by the Executive Director for the Site. Landscaping shall consist of trees, shrubs and installation of an automatic irrigation system adequate to maintain such landscaping. D. pedestrian Plaza Commission shall construct a pedestrian plaza adjacent to the Site at the location designated on the Basic Concept Drawings. Up to $30,000 of the costs of the Pedestrian Plaza shall be borne by the Developer pursuant to Section 3.7 of this Agreement. The Pedestrian Plaza shall consist of material and -2- EXHIBIT NO. 5 4461.13 11/12/92 design elements compatible with the architectural style of the theater. The elements and materials to be used for the Pedestrian Plaza shall be approved by the Commission in its reasonable discretion. Developer's architect and contractor shall be consulted prior to the development of the Pedestrian Plaza. III. EASEMENTS Developer shall grant and permit or cause the granting and permission of all necessary and appropriate easements and rights for the development of the Site, including but not limited to temporary construction easements and easements and rights of vehicular access, pedestrian access, parking, structural support, sanitary sewers, storm drains, water, electrical power, telephone, natural gas, as are necessary for and consistent with the development as contemplated herein. IV. CONTROLS AND RESTRICTIONS - MISCELLANEOUS Controls and restrictions consistent with this Agreement including but not limited to minimum size parking spaces and minimum loading facilities shall be consistent with the Development Agreement approved by the City of Downey. -3- EXHIBIT NO. 5