HomeMy WebLinkAboutRDA MICRO CTR DEV AG 06-20-94A(3END4
RDA NO. 4
t 'l 6,:--20.94
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Inter-Com
DATE:
JUNE 20, 1994
TO:
FROM:
SUBJECT:
WILLIAM A. H~.STON, EXECUTIVE DIRECTOR
COMMUNITY DEVELOPMENT DEPARTMENT
·
MICRO CENTER DISPOSITION AND DEVELOPMENT AGRE~
RECOMMENDATION
It is recommended that the Redevelopment Agency:
i ·
Approve the Environmental Determination for the project
by adopting ResolutiOn No. 94-10; and
.
Approve the Disposition and Development Agreement byand
among Micro Electronics, Inc. (Micro Center), Catellus
Development Corporation, the City and the Redevelopment.
Agency to provide Micro Electronics, Inc. with financial
assistance for the improvement~.of the property at 1100
Edinger Avenue.-
FISCAL IMPACT
The proposed Disposition and'Development Agreement (DDA), provides
Micro Electronics, Inc. with assistance payments of up to $638,000
in 1993 present value over a 10. year time frame at an 8% discount
rate. Assistance payments will be made on an annual basis by the
City and/or Agency provided certain sales tax thresholds are
achieved by Micro Center. It is proj'ected that the City's General
Fund could receive sales tax revenues ranging from $2.4 million to
$4.9 million dollars from Micro Center over 10 years. It is
currently anticipated that all assistance payments would be made by
the Agency on anannual basis and included in annual Agency budget
requests. No appropriation is required at this time.
BACKGROUND
Micro Electronics, Inc. ("Micro Center") specifically requested
City and/or Redevelopment Agency financial assistance-to assist
them in'offsetting extraordinary costs in their development of a
Micro Center facility at the southwest corner of Edinger Avenue and
Del Amo Avenue in the City of Tustin.
On September 7, 1993, the City Council and the Redevelopment Agency
approved a letter of understanding with Micro Electronics, Inc. for
Redevelopment Agency Report
Disposition and Development Agreement
June 20, 1993
Page 2
the level of assistance to be provided to Micro Center as an
incentive to locate in Tustin, and the manner in which annual
payments would be computed. The Council and the Agency also
authorized staff to prepare and negotiate a full DDA. The attached
Agreementis under consideration at this time. The terms of this
Agreement are the same as the terms of the Letter of Understanding,
previously approved.
The following is a summary of staff's justification for assistance
as well as the terms of assistance, as presented to the Council and
Agency on September 7, 1993.
JUSTIFICATION FOR ASSISTANCR
Prior to staff's consideration of any financial assistance for the
project, a substantial amount of financial information and dataon
the proposed project was requested from Micro Center including
Micro Center's 10 year cash flow analysis for the project. Micro
Center was also'asked to provide an e~timate of the sales volumes
that could be expected from the project.
Ail financial information for the project including an'analysis of
Micro Center's justification or.need for assistance have been
reviewed by the Agency's financial real estate consultant, Kotin,
Regan and Mouchly, Inc. (KRM).
The essential terms of the Micro Center transaction with Catellus
Development are:.
i ·
Micro Center is leasing the site at 1100 Edinger Avenue in
Tustin from Catellus for fifteen .years at a rental rate
starting at approximately $7.14 a square foot per year.
o
Catellus provided Micro Center with approximately $1,251,200
in construction funds to partially finance building and site
improvements.
·
The preparation and development costs for the Tustin Micro
Center facility were approximately $4.27 million to bring the
former Builder's Emporium store up to Micro Center's
specifications for retail operations.
After giving credit for the $1,251,200 million construction
funds provided by Catellus, Micro Center had projected excess
Redevelopment Agency Report
Disposition and Development Agreement
June 20, 1993
Page 3
costs of approximately $763,000 in the development of their
store in Tustin.
Not all. of the excess costs are ones which wOuld necessarily
be included in an Agency assistance program. For instance,
Micro Center has stated that pre-opening costs for Micro
Center in Tustin were attributable to generally high cost
levels in California and the long distance from the corporate.
home office. Since these costs would apply uniformly
throughout California, the case for including them in a total
assistance program is weakened.
Based on the above factors, the assistance program is based only on
those excess costs identified, excluding excess pre-opening
expenses that were not related to site development.
Staff and KRM analyzed the issue of need for assistance on the part
of Micro Center. Based on this analysis, there was justification
for Micro Center to receive some level of City/Agency assistance.
'It is also in the City's/Agency's best economic interest to do so.
The key assumptions on which staff and KRM findings justifying
assistance are based are as follows:
I ·
Micro Center's normal $2.2 million allowance for "development
costs" (which include certain pre-opening expenses) for its
prototype store are for improvements beyond those that would
be provided by their landlord within the $7.00 per square foot
per year rent they budget for a prototype.
·
The as-is former Builder's Emporium store, with the $1.2
million in improvements the Catellus Development Corporation
is willing to fund, had a rental market value in the $7.00 per
square foot per year range. Catellus could have expected to
obtain that level of rent from an alternative tenant and would
not have been compelled to make rent concessions below that
amount for Micro Center.
·
Micro Center had a reasonable likelihood of achieving its goal
of paying rent of not more than approximately $7.00 per square
foot per year for an alternative site in an equivalent market
area in California.
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The volume of sales which Micro Center is likely to generate
would be substantially higher than an alternative lower-
Redevelopment Agency Report
Disposition and Development Agreement
June 20, 1993
Page 4
volume, higher-margin retailer or other tenant which would not
need City assistance with development of this property. Micro
Center is willing to guarantee' taxable sales volumes of $25
million and have indicated that they project that sales could
range from $40 - 60 million.
The levels of sales which Micro Center appears to have achieved at
its best performing stores elsewhere in the country, and the level
of sales it is now experiencing in Tustin, makes it one of the best
possible retailers from. the standpoint of sales tax revenue
generation for the City as long as point-of-sale subventions from
the State continue.
'Specific economic need not withstanding, in today's.environment, it
would be difficult for any city to pursue a new retailer of Micro
Center's potential without some form of assistance.
ASSISTANCE PROGRAM
In structuring a financial'.assistance program for Micro Center, KRM
suggested the following criteria in judging any assistance package
for any retail development in a redevelopment area:
·
Will the City receive benefits from the assisted development
which are in excess of benefits which would be derived from an
unassisted project?
·
·
Are excess benefits truly new benefits to the City?
Will it cost the developer more or will the City/Agency incur
higher risk to produce the project which yields greater
benefits for the City?
·
Can the assistance to the develoPer be fully funded from a
portion of the excess benefits which the City derives from the
assisted development project?
·
After all assistance has been funded, will the City retain at
least a majority of the excess benefits being generated?
·
'In the absence of any excess benefits to the City, will there
be no obligation by the City to fund assistance?
Redevelopment Agency Report
Disposition and Development Agreement
June 20, 1993
Page 5
Because an assistance program for Micro Center meets the above
criteria, Agency staff and KRM believed that it would be fair,
justifiable and defensible to assist the project. A suitable level
of protection for the City and Agency can be provided as part of
the assistance program.
Once need was determined, the City and KRMutilized the following
parameters in structuring an assistance program for Micro Center
that met the criteria above:
i ·
The amount of assistance should be based on the level of sales
tax revenues generated by Micro Center.
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Only sales tax received by City on a point of sale'basis
should be utilized to determine eligibility for assistance.
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Micro Center should receive assistance only if sales tax
revenues exceed a threshold which the City could reasonably
expect to receive from an unassisted retail operator on site.
·
The program should last no more than 10 years.
Micro Center should receive no assistance in any year in which
taxable sales were less than a specified threshold.
·
The City's interest should be protected if current law
relating to point of sale retail sales tax received by the
City is changed.
There are two assumptions which apply to the proposed assistance
program outlined in the Disposition and Development Agreement:
I ·
An assumption of the potential sales tax revenue production of
the site without Agency/City assistance, and;
·
A present value amount of Agency/City assistance equal to
$638,000.
First, it was assumed that the proposed Micro Center site~had the
potential to produce some level of retail sales for the City even
without an assistance program. It is reasonable to assume a
retailer with lower sales volume but higher margins than Micro
Center could produce sales in the range of $225 per square foot in
a store the size of the present facility. Sales at this level
should be considered a threshold and the City/Agency should only
Redevelopment Agency Report
Disposition and Development Agreement
June 20, 1993
Page 6
consider assistance which can be "funded" by revenues which are
received from taxable sales above that amount.
KRM and staff believed it is necessary to explicitly specify this
threshold in the Micro Center assistance program. The
specification is in terms only of those sales tax revenues which
would be apportioned to the City on the basis of point-of-sale.
Attachment 10 of the Disposition and Development Agreement presents
the amounts which should be utilized as the threshold for each
year. These figures are identified as "Net New Revenues,, for the
Base Case Development. The difference between the total sales tax
revenues from Micro Center and the threshold will be defined as the
excess sales tax revenues.
Second, the target amount of assistance which the City or Agency
will provide is $638,000. This is derived.by subtracting excess
pre-opening expenses from Micro Center.sl.projection of the total
excess costs of opening a store in Tustin compared to a Standard
prototype. The amount of assistance actually received will be
measured as the 1993 present value of all assistance payments made
(at an 8% discount rate). Present value is the equivalent today of
money available in the future. The present value calculation for
the Micro Center assistance program will be influenced by the 8%
discount rate applied to future assistance payments. In no case
will the application of the Micro center assistance program result
in a'present value greater than that amount being .paid to Micro
Center ($638,000).
The guiding principle of the proposed Micro Center assistance
program is that the annual assistance payments will'be, equal to .a
specific scheduled percent of annUal excess sales tax revenues and
will be made until the indicated present value has been paid. The
specified percent figure which will be applied in each year is
derived by dividing the present value of the total excess sales
revenues'at the middle range of projected Micro Center sales over
ten years by the present value of the maximum amount of assistance
· proposed to be provided ($638,000). This is equal to 23.94%
(rounded to 24%). This percent will then be applied to excess
sales tax revenues on an annual basis until the accumulated present
value of' the payments reaches $638,000.
In summary, Micro Center will receive an annual payment equal to
approximately 24% of the annual excess sales tax revenue until a
1993 present value of all payments reaches $638,000, or through ten
years, whichever is shorter.
Redevelopment Agenuy Report
Disposition and Development Agreement
June 20, 1993
Page 7
Staff and KRM believe that the proposed assistance program is based
on sound rationale and consistent with criteria that should be used
in judging any retail development assistance program in a
redevelopment area. Staff will be prepared to respond to any
specific questions about the specific terms of the Disposition and
Development Agreement at the June 20, meeting.
ENVIRONMENTAL ANALYSIS
An Initial Study was prepared for the adoption of the DDA which
attached for Agency approval With the Agency September 7, 1993
approval of entitlements for Micro Center, it made the
determination that Environmental Impact Report 90-1 had previously
addressed all of the environmental issues relating to this project
and appropriate mitigating measures identified in EIR 90-1 are
included as conditions of approval for the project. The' proposed
DDA does not change any of the environmental impacts identified at
that time.
Therefore, it is recommended that the Agency make the finding that
requirements of the California Environmental Quality Act have been
met and that no further envirOnmental
review is required.
~Cde~~~ Zn~tamer
Christine A. Shingl~n
Assistant City Manager
rzimmer\micrcent \oparpt. mem
Program Manager
RESOLUTION NO. RDA 94-10
-AND
INITIAL STUDY
1 RESOLUTION NO. RDA 94-10
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A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE
CITY OF TUSTIN, FINDING THAT FINAL ENVIRONMENTAL
IMPACT REPORT (EIR) FOR THE PACIFIC CENTER EAST
SPECIFIC PLAN (FINAL EIR 90-1) IS ADEQUATE TO SERVE
AS THE PROGRAM EIR FOR THE APPROVAL OF THE
DISPOSITION AND DEVELOPMENT AGREEMENT BY AND ~MONG
THE TUSTIN COMMUNITY REDEVELOPMENT AGENCY, THE CITY
OF TUSTIN, CATELLUS DEVELOPMENT CORPORATION AND
MICRO ELECTRONICS, INC. AND THAT ALL FEASIBLE
MITIGATION MEASURES HAVE BEEN INCORPORATED AS
REQUIRED BY THE CALIFORNIA ENVIRONMENTAL QUALITY
ACT.
The Redevelopment Agency of the City of Tustin does hereby
resolve as follows:
I. The Redevelopment Agency finds and deterinines as follows:
A·
That the Disposition and Development Agreement by
and among the Tustin Community Redevelopment
Agency, the City of Tustin, Catellus Development
Corporation and Micro Electronics, Inc. is
considered a "projects" pursuant to the terms of
the California Environmental Quality Act; and
B ·
That the project~~ is covered by a previously
certified Final Environmental Impact Report for the
Pacific-Center East Specific Plan which serves as a.
Program EIR for the proposed project.
II. The Pacific Center East Specific Plan Final Environmental
Impact Report (90-1), previously certified on December
17, 1990, was considered prior to approval of this
project. The Redevelopment Agency hereby finds: this
project is within the scope of the Pacific Center East
Specific Plan previously approved; the effects of this
project, relating to grading, air quality, drainage,
plant life, noise, land use, circulation, public
services, utilities and aesthetics, were examined in the
Program EIR. All feasible mitigation measures and
alternatives developed in the Program EIR are
-incorporated into this project. The Final EIR, is
therefore determined to be adequate to serve as a Program
EIR for this project and satisfied all requirements of
the California Environmental Quality Act. Further, the
Redevelopment Agency finds the project involves no
potential for any adverse effect, either individually or
cumulatively, on wildlife resources; and, therefore,
makes a De Minimis Impact Finding related to AB 3158,
Chapter 1706, Statutes of 1990.
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Resolution No. 94-10
Page 2
PASSED AND ADOPTED at a regular meeting of the Tustin
Community Redevelopment Agency, held on the 20th day of June,
1994.
THOMAS SALTARELLI
Redevelopment Chairperson
MARY E. WYNN,
City Clerk
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF TUSTIN )
SS
CERTIFICATION FOR RDA RESOLUTION 94-10
MARY E. WYNN, City Clerk and ex-officio Clerk of the City
Council of the City of Tustin, California, does hereby certify
that the whole number of the members of the Redevelopment
Agency of the City of Tustin is 5; that the above and
foregoing RDA Resolution No. 94-10 was duly'and ~regularly
introduced, passed and adopted at a regular meeting of the·
Redevelopment Agency held on the 20th day of June, 1994, by
the following vote:
AGENCY MEMBER AYES:
AGENCY MEMBER NOES:
AGENCY MEMBER ABSTAINED:
AGENCY MEMBERABSENT:
Mary E. Wynn, City Clerk
COMMUNITY DEVELOPMENT DEPARTMENT
300 Centennial Way, Tustin, CA 92680
(,714) 573-3105
INITIAL STUDY
L
BACKGROUND
Address and Phone N_p.umber of Proponent
· -.: ~.-.- '~c'7:' (C~-'x_-.~,'! ~-,..- Lc_~y
Date Check List Submitted
Agency Requiring CheckList
Name of Proposal, ffapplicable--~iS~~
o
ENVIRONMENTAL IMPACTS
Earth. x~rfll the proposal result in:
a. Unstable earth conditions or in changes in geologic substructures?
b. Disruptions, displacemems, compaction or overcovering of the soil?
YES
c. Change in topography or ground surface relief feardres?
d. The des*ruction, coveting or modification of any' unique geologic or
physical features?
e. Any increase in wind or water erosion of soils, either on or off the site?
Changes in'deposition or erosion of beach sands, or changes in
siltation, deposition or erosion which may modify the channel of a i-iver
or stream or the bed of the ocean or any bay, inlet or lake?
MAYBE NO
..
g. Exposure of people or property to geologic hazards such as
earthquakes, landslides, mud slides, ground failure, or similar hazards?
2..Air. Will the proposal result in:
a. Substantial air emission or deterioration of ambient air quality?
b. The creation of objectionable odors?
c. Alteration of air movement, moisture, or temperatures, or any change
in climate, either locally or regionally?
3. Water. Will the proposal result in:
a.
bo
Changes in currents, or the course of direction of water movements, in
either marine or l~esh water?
Changes in absorption rates, drainage patterns, or the rate and amount
of surface runoff? -
c. Alterations to the course or floW of flood waters?
d. Change in the mount of surface water in any water body?
eo
Discharge into surface waters, or in any alteratiOn of surface water
quality, including but not limited to temperature, dissolved oxygen or
turbidity? .~ -
f. Alteration of the direction or rate of flow of ground waters?
g°
Change in the quantity of ground waters, either through direct
additions or withdrawals, or through interception of an aquifer by cuts
or excavations?
h. Substantial reduction in'the amount of water otherwise available for
public water supplies?
i. Exposure of peoPle or property to water related hazards such as
flooding or tidal waves?
4. Plant Life. Will'the proposal result in:
a. Change in'the diversity of species, or number of any species of plants
(~mcluding trees, shrubs, grass, crops, and aquatic plants)?
b. Reduction of the numbers of any unique, rare or endangered species of
plants?
YES
!1
MAYBE
NO
Co
Introduction of new species of plants, into an area, or in a barrier to the
normal replenishment of existing species?
-d. Reduction in acreage of any agricultural crop?
5. Animal Life. Will the proposal result in:
ao
Change in the diversity of species, or numbers of any species of animals
(birds, land animals including reptiles, fish and shellfish, benthic
organisms or insects)?
b. Reduction of the numbers of any unique, rare or endangered spedes of
animals?
c. Introduction of new species of animals into an area,-or result in a
barrier to the migration or movement of animals?
d. Deterioration to existing fish or wildlife habitat?
YES
MAYBE
NO
6. Noise. Will the proposal result in:
Increases in existing noise levels?
.
ge
b. Exposure of people to severe noise levels?
Light and Glare. Will the proposal produce new light or glare?
Land Use. Will the proposal result in a substantial alteration of the present
or planned land use of .an area?
9. Natural Resources. Will the proposal result in:
a. Increase in the rate or use of any natural resources?
b. Substantial depletion of any nonrenewable natural resource?
10. Risk of Upset. Will the proposal involve:
a. A risk of an explosion or *.he release of hazardous substances
(including, but not limited to, oil, pesticides, chemicals or radiation) in
the event o.f an accident or upset conditions7
I!
b. Possible imerference with an emergency response plan or an emergency
evacuation plan?
11. Population. Will the proposal alter the location, distribution, density, or
growth rate of the human population of an area?
1 2. Housing. Will the proposal affect existing housing, or create a demand for
additional housing?
13. Transportation/Circulation. Will the proposal result in:
a. Generation of substantial additional vehicular movement?
b. Effects on existing parking facilities, or demand for new parking?
¢. Substantial impact upon existing transportation systems?
d. Alterations to present patterns of circulation or movement of people
and/or goods7 ·
e..Alterations to waterborne, rail or air traffic?.
f. Increase in traffic hazards to motor vehicles, bicyclists or pedestrians?
14. Public Services. W-ill the proposal have an effect upon, or result in a need
for new or altered governmental services in any of the following areas:
a. Fire protection?
b. Police protection?
c, Schools?
d. Parks or other recreational fa 'cilities?
e. Maintenance of public facilities, including roads?
f. Other governmental services?
15. Energy. \x,51i the proposal remit in:
a. Use of substantial amounts of fuel or energy?
b. Substantial increase' in demand upon existing sources of energy, or
require the development of new sources of energy?
YES
MAYBE
NO
YES
16. Utilities. Will the proposal result in a need for new systems, or substamial
alterations to the following utilities:
a. Power or natural gas? [--]
b. Communications systems? i--]
c. Water? [---[
d. Sewer or septic tanks? F--[
e. Storm water drainage? ~-[
f. Solid waste and disposal? F--[
17~ Human Health. x~rfll the proposal result in:
a. Creation of any health bo?~ard or potential heklth hazard (excluding
mental health)? - [--]
b. Exposure of people to potential health hazards?
18. Solid Waste. ~rtll the proposal create additional solid waste requiting
disposal by the City7
19. Aesthetics. v~rfll the proposal result in the obStrUction of any scenic vista or
view open to the public, or will the proposal result in the creation of an
aesthetically offensive site open tO public view?
20. Recreation. Wrtll the prOposal result in an impaot upon the quality or
quantity of existing recreational oppommities?
21. Cultural Resources. Will the proposal result in:
a.The alteration of or the destruction of a prehistoric or historic
archaeological site?
b. Adverse physical or aesthetic effects to a prehistoric or historic
buildino~ structure, or object? F~
c. TheethnicPOtentialculturaltOvalues?Cause a physical change which would affect unique ['--I
d.W~fll the proposal restrict existing religious or sacred uses within the
potential impact area?
MAYBE
NO
YES MAYBE NO
22. Mandatory Findings of Significance.
ao
Does the project have the potential to degrade the quality of the
environment substantially reduce the habitat of a fish or wildlife
species, cause a fish or wildlife population to drop below self sustaining
levels, threaten to eliminate a plant or animal community, reduce the
number or restrict the range of a rare or endangered plant or animal or
eliminate important examples of the major periods of California history_
or prehistory?
bo
Does the project have the potential to achieve short-term, to the
disadvantage of long-term, environmental goals? (A short-term impact
on the environment is one which occurs in a relatively brief, definitive
period of time while long-term impacts will endure well into the
future).
Co
Does the project have impacts which are individually limited, but
cumulatively considerable? (A project may impact on two or more
separate resources where tb.e impact on each resource is relatively
small, but where the effect of the total of those impacts on the
environment is significant.)
do
Does the project have environmental effects which will cause
substantial adverse effects on human beings, either' directly or
indirectly? ·
m~
DISCUSSION OF ENVIRONMENTAL EVALUATION
SEE ATTACHMENT A
IV. DETERMINATION
n the basis of this initial evaluation:
I find that the proposed project COULD NOT have a significant effect on
the environment, and a NEGATIVE DECLARATION will be prepared.
I find that although the proposed project could have a significant effect on
the environment, there will not be a significant effect in this case because
the mitigation measures described in Attachment A attached hereto have
-been added to the project. A NEGATIVE DECLARATION WILL BE
PREPARED.
I find the proposed project MAY have a significant effect on the
environment, and an ENVIRONMElqTAL IMPACT REPORT is reqUired.
Date
3702A
Signature
Name (Print)
Title
P~.T 'rT? - D'rSCUSS'rON OF EI~W~"rROlqMENTAL
INITI~ff., STUDY RESPONSES FOR
DISPOSITION ~ DEVELOPMENT AGREEHENT
BY~D~IONG
THE TUSTIN COI,fl~UNITY REDEVELOPHENT ~ENCYt THE CITY OF TUSTIN
C~TELLUS DEVELOPM~NT CORPORS~TION
MICRO ELECTRONICSt INC.
BACKGROUND
The purpose of this initial study is to determine if EIR 90-1,
which was previously certified on December 17, 1990 for the Pacific
Center East Specific Plan, adequately addresses any potential
impacts of .the proposed project and, therefore, can serve as a
Program EIR for this project.
EIR 90-1 identified several impact categories where a Statement of
Overriding Consideration was adopted by the City for the 'entire
PCESP area. For the purposes of this initial study check list,
these items have been checked "Yes". Mitigation measures
identified in the EIR to minimize the impacts that would be
applicable to this project have been identified. EIR 90-1 also
identified several impact categories where impacts could be
lessened to a level of insignificance with the imposition of
mitigation measures. For the purposes of thiS initial study check
list, these items have been checked "No" and the mitigation
measures identified in the EIR that would be applicable to this
project have been identified.
Potential impact categories in EIR 90-1 not identified to have a
potential impact have been check "No" and were reviewed to ensure
that no new impacts would be created by the project. Since no new
development is proposed at this time in conjunction with the
Planning Area 6 Concept Plan, and only rehabilitation of an already
developed site is proposed, no new impacts which were not addressed
in the EIR have been identified.
The project is the Disposition and Development Agreement (DDA) by
and among the Tustin Community Redevelopment Agency, the City of
Tustin, Catellus..'Development Corporation and Micro Electronics,
Inc.
The property which is the subject of this DDA is in Planning Area
6, of the Pacific Center East Specific Plan (PCESP). The project
area for. the Planning Area 6 Concept Plan is approximately 9.5
acres ih size and can be described as the area south of Edinger
Avenue, west of Del Amo Avenue and east of the future alignment of
Newport Avenue as generally identified in Exhibit 5 of the PCESP.
These properties are located within the Planned Community (PC)
Zoning District and designated Regional Center by the PCESP Land
Use Plan.
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 2
The project site subject to the DDA is approximately 4 acres in
size and is located on the southwest corner of Edinger and Del Arno
Avenues at 1100 Edinger Avenue in the Planned Community (PC) Zoning
District and designated Regional Center by the PCESP Land Use Plan.
·
Item~ A though G - "No": Planning Area 6 is primarily flat.
The Plann'ing Area includes both vacant properties and
developed 'properties, including the site proposed for
rehabilitation. No new development is .proposed at. this time
in,,consfder~ion of the Planning Area 6 Plan.
The site is relatively flat and currently developed with a
45,600 square foot retail-building and parking facilities
which has been vacated. Replacement of the parking lot,
addition of landscape planters and driveways will be required
to prepare the site to accommodate the proposed use.
EIR 90-1'identified impacts to the entire Specific Plan area
related to the necessary grading activity that would occur in
order to accommodate the various types of development and the
resultant change to existing landform and topography of the
area. · Consequently, mitigation measures were identified in
EIR 90-1 and are recommended for implementation that would
reduce the potential impacts to a level of insignificance.
Sources:. Field Verification
Submitted Plans
Tustin City Code
community Development Department, Building Division
Certified EIR 90-1 ~.
Pacific Center East Specific Plan ~-
A. P lanninq Area 6 Mitigation/Monitoring Required:
Mitigation measures which are applicable to the Planning
Area 6 Concept Plan and have been incorporated into the
project as conditions of approval include:
1. A soils and geotechnical report and grading plans
would be required for any new deve].opment within
the Planning Area to determine that all grading
activities within the Planning Area incorporate
applicable mitigation measures identified in
Section 3.2 of the EIR, as reviewed and approved by
the Community Development Department·
·
Development of vacant parcels shall submit a
pesticides/toxiCity report which identifies any
potential pesticide "hot spots" and recommends
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 3
procedures for necessary soil mixing or removal.
In the event archeological remains are uncovered,
work in the affected area shall be suspended. In
such an event, a recognized specialist shall be
contacted to survey the area. Ail actions taken
under this measure shall be in accordance with
Appendix K oft he State CEQA Guidelines.
Site Rehabilitation Mitiqation/Monitoring Requ!re_a:
Mitigation, measures which are applicable to the Site
Rehabilitation'. 'and have been incorporated into the
project as conditions of approval include:
1.
AI1 foundations shall include reinforcement as
reviewed and approved by the Community Development
Dep~ent.
2. Ail pavement "R" values shall be reviewed and
, approved by the Community Development Department in
accordance with applicable City standards.
3. All structures shall be developed in accordance
with the seismic.design provisions of the Uniform
Building Code and reviewed and approved by the
Community Development Department for conformity
during plan check.
2. AIR
Item A - "Yes": Although no'new development is proposed at
this time, the Planning Area 6 Concept Plan proposes
approximately 75,000 square feet ~f retail space and a minimum
250 room hotel, consistent, with the approved Land Use Plan for
the PCESP. The rehabilitation site is presently developed
with a 45,600square foot retail building, which is a part of
the 75,000 square feet of retail space proposed for Planning
Area 6. No new square footage would be added with the
rehabilitation. .~-.'
EIR 90-1 determined that regional ambient air quality
conditions, combined with regional cumulative traffic,
contributes to-the exceedance of daily State and Federal
standards for' several air pollutants. A Statement of
Overriding Considerations was adopted to address necessary
compromises for the overall benefit of the Specific Plan area
and region.' Consequently, mitigation measures were identified
in EIR 90-1 to minimize these impacts and are recommended for
implementation.
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 4
Items B and C - "No": EIR 90-1 did not identify any potential
impacts related the creation of objectional odors or
alteration.of air movement, moisture, temperature or climate
for the Specific Plan area. As noted in the Background
Section above, no additional impacts have been identified.
sources: Field Verification
Submitted Plans
Tustin City Code
Certified EIR 90-1
Pacific Center East Specific Plan
ao
Planning Area 6 Mitigation/Monitoring Required:
Mitigation measures which are applicable tot he Planning
Area 6 Concept Plan and have been incorporated into the
project as conditions of approval include:
Any future new development shall comply with all
South Coast Air Quality Management District rules
and regulations.
Be
Site Rehabilitation Mitigation/Monitoring Required:
Mitigation measures which are applicable to the Site
Rehabilitation and have been incorporated into the
project as conditions of approval include:
le
The project shall comply with all City policies
regarding short term construction related
emissions, including periodic watering of the site
and prohibiting grading during second stage smog
alerts and when wind velocities exceed 15 miles per
hour.
The applicant shall consult with utility companies
to incorporate energy conservation measures which
will reduce stationary sources emissions.
The project proponent shall comply with all South
coast Air Quality Management District rules and
regulations related to the proposed use and
rehabilitation of the site.
items A through I - "No": The PCESP identified a Storm Drain
Concept Plan to address the drainage requirements of the
entire Specific Plan area. The proposed Planning Area 6 Plan
is consistent with that concept plan. Since no new
development is proposed, no new drainage facilities would be
required at this time.
Part III -· Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 5
The site proposes reconstruction and repair of the existing
parking facilities which would modify the drainage patterns.
However, this would be an ~mprovement over existing
conditions. The existing storm drain system for the area is
adequate to accommodate the proposed improvements.
EIR 90-1 identified impacts to the entire Specific Plan area
related to water and drainage. Consequently, mitigation
measures were identified in EIR 90-1 and are recommended for
implementation that would reduce the potential impacts to a
level of insignificance·
EIR 90-1 did not identify any potential impacts to the change
of courSe or direction of water courses, water bodies,
discharge into water bodies, alter groundwater or water
supplies or flooding from the site. As noted in the
Background sedtion above, no additional impacts have been
identified·
Sources: Field Verification
Submitted Plans
Tustin City Code
Certified EIR 90-1
Pacific Center East Specific Plan
A·
Planning Area 6'~Mitigation/Monitoring Required:
Required at this time.
None
Bo
Site Rehabilitation Mitigation/Monitoring. Required:
Mitigation measures which are applicable, to the Site
Rehabilitation have been incorporated into the project as
conditions of approval include:
.
Final grading and drainage of the parking lot shall
conform to the drainage concept plan of the PCESP
to ensure that project storm runoff does not exceed
the capacity of local storm drain systems as
reviewed and approved by the Public Works
Department.
·
Periodic cleaning (i.e. street sweeping) of paved
areas shall be performed to remove small particles
size sediments with absorbed pollutants caused by
uses of the area.
4. PLANT LIFE
Items A through D - "No": The Planning Area 6 Plan makes
provisions for street landscaping concepts consistent with
that previously approved in the PCESP. No landscaping would
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 6
be installed as part of the Planning Area 6 Plan. The site
Rehabilitation would remove existing plant material and add
new plant material consistent with the Planning Area 6 Plan
and PCESP Landscape concept.plans. 'Additional landscaping
would also be provided within the parking lot and interior of
site consistent with the City's Landscape Design Guidelines.
EIR 90-1 identified impacts to the entire Specific Plan area
related to the reduction of agricultural crops. Agricultural
operations within the Specific Plan area~ occur outside of the
area covered by Planning Area 6. consequently, no mitigation
measures would apply to' this project. EIR 90-1 did not
of
identify any potential impacts related to the change or
species
diversity of ' , reduction of the number of .unique
endangered species of plant life, or the introduction of new
plant life into the area. As noted above in the Background
Section, no new impacts have been identified.
Sources:. Field Verification
Submitted Plans
Certified EIR 90-1
Pacific Center East Specific Plan .~
city's Landscape Design Standards
a.
Bo
Planninq Area 6 Mitiqation/Monit°rinq Required:
required at this time.
None
site Rehabilitation Mitiqation/Monitorinq Required.'_ None
Required.
5. ANIMAL LIFE
Items A throuqh D '- "No": EiR 90-1 did not identify any
potential impacts related to animal life. As noted in the
Background Section above, no new impacts have been identified.
sources:. Field Verification Certified EIR 90-i
Pacific Center East Specific Plan
ae
Pianninq Area 6 Mitiqation/Monitoring Required:
Required.
Be
None
Site Rehabilitation MitiGation/Monitoring Required:. None
Required.
e
NOISE
Item A - "Yes": Ultimate development within Planning Area 6
would result in short-term construction noise impacts, and a
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 7
long-term increase in the ambient noise levels in and around
the project site. Ambient noise levels on the rehabilitation
site would remain the same as the proposed retail use is
consistent with the uses that have Previously occupied the
- site. A Statement of Overriding Consideration was adopted to
address necessary compromises for the overall benefit of the
Specific Plan area and the City. Consequently, mitigation
measures were identifiedinEIRg0-1to minimize these impacts
and are recommended for implementation.
Item B - "No": EIR 90-1 did not identify any potential
impacts related to exposure to severe noise levels in the
Specific Plan area. As noted above in the Background Section,
no additional impacts have been identified.
Sources: Field Verification
Submitted Plans
Tustin City Code
Certified EIR 90-1
.Pacific Center East Specific Plan
ae
Planninq Area 6 Mitigation/Monitoring Required:
Required.
None
Be
Site Rehabilitation M~tiqation/Monitorinq Required:
Mitigation measures which are applicable to the 'Site
Rehabilitation and have been incorporated into the
project as conditions of approval include:
o
The project proponent shall comply with all City
policies regarding noise and the City of Tustin
Noise Ordinance and the use of properly maintained
muffler systems on all construction equipment.
LIGHT AND ~~
"No": The PlanningArea 6 Concpet Plan would not include any
new site lighting as no new development would occur at this
time. The Site Rehabilitation would replace existing site
lighting and improve the site lighting for the site to comply
with the City's.Security Ordinance for parking lot and site
lighting requirements. All site lighting would be designed to
ensure that light rays would be confined to the property and
not have a negative impact on adjacent properties.
EIR 90-1 did not identify any potential impacts related to
lighting. As noted in the Background Section above, no
additional impacts have been identified.
Sources: Field VerifiCation
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 8
Submitted Plans
Tustin City Code
Certified EIR 90-1
Pacific Center East
ae
Bo
Planning Area 6 Mitiqation/Monitorinq Required:
Required.
None
Site Rehabilitation Mitiqation/Monitorinq Required: None
Required.
8. LAND USE
"No": The Planning Area 6 Concept Plan would refine the
ultimate land uses within this portion of the PCESP. The Plan
identifies approximately 75,000 square feet of retail space
and a minimumS50 room hotel on approximately 9.5 acres which
is consistent with the Land Use Plan of the PCESP. The
boundaries and acreage of the Planning Area have been adjusted
to reflect the latest alignment studies for Newport, Del Amo
and Edinger Avenues.
The Site Rehabilitation would.includethe rehabilitation of an
existing 45,600 square foot retail building. No new square
footage is being proposed. This building has historically
been used as a retail store. No change of use is proposed.
The use of the building for retail is permitted by right
within the Regional Center Land Use Designation of the PCESP.
Related to the Site Rehabilitation, a Variance is proposedto:
1) reduce the landscape setbacks along Edinger and Del Amo
from 30 feet to approximately 23.feet to accommodate adequate
site parking in consideration of the existing and ultimate
right-of-way constraints; and 2) increase the maximum-height
of the a small portion of the building from 35 feet to 45 feet
to accommodate two tower elements on the west elevation of the
building. Both of these variance requests will still provide
overall consistency with the PCESP and will result in a
cohesive development without creating additional impacts not
previous considered related to land use.
Also related to the Site Rehabilitation, a Conditional Use
Permit is proposed to establish a Master Sign Pan which
deviates form the City's Sign Code with respect to the number
and size of business identification signs and the use of a
pole sign. The proposed sign plans appear to be appropriate
given the size and scale of the proposed improvement and would
create a cohesive project, providing appropriate building
identification given the surrounding development. The pole
sign is proposed to utilize an existing pole structure on an
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 9
adjacent site thereby removing an existing nonconforming pole
sign. In addition, the existing pole sign on the subject
property would be removed in its entirety.
EIR 90-1 identified impacts to the entire Specific Plan area
related to land use. Consequently, mitigation measures were
identified in EIR 90-1and are recommended for implementation
that would reduce the potential impacts to a level of
insignificance.
·
Sources: Field Verification
Submitted Plans
Tustin City Code
Certified EIR 90-1
Pacific Center East Specific Plan
A·
.Planninq' Area 6 Mitiqation/Monitoring Required:
Mitigation-measures which are applicable to the Planning
Area 6 Concept Plan and have been incorporated into the
project as conditions of approval include:
1. Any future development plans for structures over 60
feet in height Shall be submitted to the Federal
Aviation AdministratiOn and -Airport Land Use
Commission for review and comment.
Site Rehabilitation Mitiqation/Monitoring Required:
Mitigation measures which are applicable to the Site
Rehabilitation and have been incorporated into the
project as conditions of approval include:
The Community Development Department shall review
each site to ensure that it conforms to the
approved development standards and land use
concepts in the Specific Plan to assure compatible
on-site land use.
The property owner.shall dedicate required street
right-of-way consistent with provisions of the
Specific Plan for ultimate street improvements.
1TAT~ RESOURCE~
Items. A and B - "No": No development is proposed in
conjunction with the Planning Area 6 Concept Plan. The site
rehabilitation is for an existing retail building. No new
floor area is proposed. EIR 90-1 did not identify any
potential impacts related to natural resources. As noted
above in the Background Section, no additional impacts have
been identified.
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 10
Sources: Field Verification
Submitted Plans
Certified EIR 90-1
Pacific Center East Specific Plan-
a.
B.
Planninq Area 6 Mitiqation/Monitoring Required: None
Required.
Site Rehabilitation Mitiqation/Monitorinq Required: None
Required.
10. RISK OF UPSET
Items A and B - "No#:. No actual development is proposed in
conjunction with the Planning Area 6 Concept Plan.' The
proposed concept plan is consistent with theLand Use Plan of
the PCESP. Th~ site rehabilitation is for an existing retail
building. The proposed use is a retail operation which is
consistent with past uses within the building. EIR 90-1 did
not identify any potential impacts related to risk of upset.
As noted above in the Background Section, no additional
impacts have been identified.
Sources: Field Verification
Submitted Plans
Certified EIR 90-1
Pacific Center East Specific Plan
ae
Bo
Planninq Area 6 Mitiqation/Monitorinq Required: None
Required.
Site Rehabilitation M!tiqatiDn/Monitorinq Required: None
Required.
11. POPULATION
"No": No residential development is proposed in conjunction
with the Planning Area 6 Concept Plan which would increase the
City's population. The proposed concept plan. is consistent
with the Land Use Plan of the PCESP. The.site rehabilitation
is'for an exist~g retail building. The proposed use is a
retail operation which is consistent with past uses within the
building. No residential units would be created which would
increase the City's population. EIR 90-1 did not identify any
potential impacts related to population. As noted above in
the Background Section, no additional impacts have been
identified.
-Sources: Field Verification
Submitted Plans
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 11
Certified EIR 90-1
Pacific Center East Specific Plan
A. Planninq Area 6 Mitigation/Monitoring-Required: None
Required.
Bo
Site Rehabilitation Mitiqation/Monitorinq ReqUired: None
Required.
12. HOUSIN~
"No": No.residential development is proposed to be added or
.removed in conjunction with the Planning Area 6 Concept Plan
which would effect the amount of housing in the City. The
proposed concept plan is consistent with theLand Use Plan of
the PCESP. The site rehabilitation is for an existing retail
building. Th~ proposed use is a retail operation which is
consistent with past uses within the building. No residential
units would be created or removed which would effect the
amount of housing in the City.
EIRg0-1 identified impacts outside of the Specific Plan area
related to the removal of residential units in or'der to
construct the requried Newport Avenue extension and
undercrossing. Consequently, mitigation measures were
identified in EIR 90-1. However, the PlanningArea 6 Plan and
the Site Rehabilitation does not require the extension of
Newport Avenue, nor the removal of any residential units.
13.
Sources: Field Verification
Submitted Plans
Cer, tified EIR 90-1
Pacific Center East Specific Plan
A. Planninq Area 6 Mitigation/Monitorinq ReqUired: None
required at this time.
Bo
Site Rehabilitation Mitiqation/Monitorinq Req~lired: None
Required.
TRANSPORTATION/CIRCULATION
Items A and C - "Yes": The Planning Area 6 Concept Plan
reflects the latest alignment and right-of-way studies for
Edinger, Del Amo and Newport Avenues. The capacities and
right-of-way requirements are consistent with the PCESP.
Since the site was previously developed with a retail use, the
site rehabilitation and establishment of a new retail use
would not create a significant amount of new vehicular trips.
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 12
EIR 90-1 determined that the ultimate development of the
entire Specific Plan area will generate increased traffic in
the vicinity. A Statement of Overriding Consideration was
adopted to address necessary compromises for the~ overall
benefit of the Specific Plan area and region. Consequently,
mitigation measures were identified in EIR 90-1 to minimize
these impacts and are recommended for implementation.
Items B, D, E and F - "No": The Planning Area 6 Concpet Plan
identifies individual site access tot he properties within the
Planning Area. These access points are consistent with the
PCESP and acceptable to the Public Works Department,
Engineering Division. The proposed s!~e rehabilitation would
modify existing driveways on Edinger-and Del-Amo Avenues. One
existing driveway on Edinger and two existing'driveways on Del
Amo would be removed. Parkin~--'facilities would be
reconstructed Go comply with the required amount of parking as
established by the PCESP. The site is currently developed
with a 45,600 retail building. No new square'footage is being
proposed. Therefore, the project would comply with the
phasing schedule identified in the PCESP and would not be
required to construct any ultimate street improvements att his
time. Offers of dedication for the required right-of-way and
bonds for the ultimate, construction of street improvements
would be required.
EIR 90-1 did not identify any potential impacts related to the
creation of new parking facilities, present patterns of
circulation, rail traffic, or increase in traffic hazards. As
noted in the Background Section above, no additional impacts
have been identified.
Sources: Field Verification
Submitted Plans
Tustin city Code
Public Works Department, Engineering Division
Certified EIR 90-1
Pacific Center East Specific Plan
a.
Be
P!anninq Area 6 Mitiqation/Monitorin~. Required:
required at this time·
None
Site Rehabilitation Mitiqation/Monitorinq Required:
Mitigation measures which are applicable to the site
Rehabilitation and have been incorporated into the
project as conditions of approval include:
le
The property owner shall dedicate required right-
of-way along the Edinger and Del Amo Avenue
frontages in accordance with the Specific Plan and
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 13
other current alignment studies.
·
The property owner shall provide fair share funding
for the upgrades for the existing- Edinger/Del Amo
Avenues traffic signal.
14. PUBLIC SERVICES
Items A through F "No": Since no actual development is
proposed with the Planning Area 6 Concpet Plan, no additional
public services would be required at this time.' The site
rehabilitation would not require any additional public
services as this is an existing developed site. No new square.
footage or Change in use is proposed.
EIR 90-1 identified impacts to the entire Specific Plan area
related to p~blic services, including Fire and Police
protection, schools and public facilities,' including
maintenance of roads. Consequently, mitigation measures
identified in EIR 90-1 and are recommended for implementation
that 'would reduce the potential impacts to a level of
insignificance. ~.
EIR 90-1 did not identify .any potential impacts related to
public services, such as .parks and recreation and other
governmental services; As noted above in Background Section,
no additional impacts.have been identified.
Sources: Field Verification
Submitted Plans
City Departments
Certified EIR 90-1
Pacific Center East Specific Plan
A·
Planning Area 6 Mitigation/Monitoring Required:
Required.
None
Be
Site Rehabilitation Mitigation/Monitoring Required:
Mitigation measures which are applicable to tile Site
Rehabilitation and have been incorporated into the
project as conditions of approval include:
The site rehabilitation shall comply with the
City's Security Ordinance, including provisions for
proper lighting, adequate building addressing,
sensitive review of landscaping to ensure it does
not provide dense cover, and buildings which have
passive and/or over surveillance opportunities.
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 14
·
The project shall comply with all Orange County
Fire Department requirements related to fire flow,
installation where requried of fire hydrants and
compliance with all requirements related to
construction.
15' ENERGY
Items A and B - "No": Since no actual development is proposed
with the Planning Area 6 Concpet Plan, no additional energy
needs would be required at this time. The site rehabilitation
would not require any significance difference in energy
consumption as this is an existing developed site. No new
square footage or change in use is proposed..
EIR 90-1 identified impacts to the entire Specific Plan area
related to effergy consumption. Consequently, mitigation
measures identified in EIR 90-1 and are recommended for
implementation that would reduce the potential impacts to a
level of insignificance.
Sources: Field Verification
Submitted Plans
Tustin city Code
Certified EIR 90-1
Pacific Center East Specific Plan
A. Planninq Area 6 Mitiqation/Monitorinq Required: None
Required.
B. .Site Rehabilitation Mitigation/Monitorinq Required:.
Mitigation measures which are applicable to the site
Rehabilitation and have been incorporated into the
project as conditions of approval include:
1. The project proponent shall be responsible for
construction of any street lighting, undergrounding
facilities or other structures required by the
Public Works Department.
2. The Community Development Department shall review
all plans to assure all structures are designed in
accordance with Title 24 of the California
Administrative Code.
3. The project proponents should consult with
Southern California Edison and The Gas Company to
incorporate energy conservation measures into the
project.
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 15
16. UTXLITIES
Item~ A throuqh F - "No": Since no actual development is
proposed with the Planning Area 6 Concpet Plan, no additional
need for utilities to service the area would be required at
this time. The site rehabilitation proposes to remove
overhead utilities which exclusively service the site and
replace them with underground service. The existing utilities
in the area are adequate to serve the site since no new square
footage or change in use'is proposed.
EIR 90-1 identified impacts tothe entire Specific Plan area
related to utilities. Consequently, mitigation measures
identified in EIR 90-1 and are recom-ended for implementation
that would reduce the potential impacts to a level of
insignificance·
Sources: Field Verification
Submitted Plans'
Tustin City Code
Certified EIR 85-2
East Tustin Specific Plan
a.
B·
Planning Area 6 Mitigation/Monitorinq Required:. None
Required~,-~'~ ..... i~i
·
site Rehabilitation Mitiqation/Monitorinq Required:
Mitigation-measures which are applicable to the Site
Rehabilitation and have been incorporated into the
project as conditions of approval include:
1. Compliance with the m%tigation measures identified
in Item 15B Mitigation Measures above.
·
Landscaping irrigation system~should be controlled
automatically to ensure watering during early
morning or evening hours to reduce evaporation
losses.
·
Plumbing fixtures to reduce water usage and loss·
should be utilized (i.e. low-volume toilet tanks,
flow control devices for faucets, etc.) in
accordance with Title 24 of the California
Administrative Code.
e
Drought tolerant plants should beincorporated into
the project design f~om the plant pallet in the
PCESP whenever possible.
5. The on-site water system improvements including 12
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 16
inch mains in Edinger-Avenue and fire hydrants,
meters, and back-flow prevention devices, if
required, shall be installed by each developer at
developer's expense and in conformance with plans
and specification approved by the City of Tustin
Water Service Division.
6.
The project shall accommodate access proVisions for
garbage trucks, locating stationary trash
compactors in individual buildings in order to
minimize waste hauling demand, and providing and
maintaining solid waste storage areas in accordance
with City of Tustin.requirements.
7.
The project shall make provisions for trash
enclosures for all purposes as requried by the
PCESP (Section 4.7 General Regualtions).
Pacific Bell shall review plans to ensure
appropriate easements will be provided for any new
telephone facilities.
Items A and B - "No": No actual development is proposed in
conjunction with the~ Planning Area 6 Concept Plan. The
proposed concept plan is consistent with the Land Use Plan of
the PCESP. The site rehabilitation is for an existing retail
building. The proposed use is a retail operation which is
consistent with past uses within the building. EIR 90-1 did
not identify any potential impacts related to health hazards.
As noted above in the Background Section, no additional
impacts have been identified.
SourCes: Field Verification
Submitted Plans
Tustin City Code
Certified EIR 90-1
Pacific Center East Specific Plan
ae
Be
Planninq Area 6 Mitigation/Monitoring Required:
Required.
None
Site Rehabilitation Mitiqation/Monitoring Required: None
Required.
18. SOLID WASTE
"No": Since no actual development is proposed with the
Planning Area 6 Concpet Plan, there would be no creation of
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 17
additional solid waste att his time. The site rehabilitation
proposes to add trash compactors and trash bin service which
presently does not exist on the site in accordanc~ with
applicable requirements of the City's trash hauler. 'Since
this site is an existing retail development, there should not
be a significant~difference in the amount of solid waste
generated. ~
E~R90-1 identified impacts to the entire Specific Plan area
related to solid waste. Consequently, mitigation measures
identified in EIR 90-1 and are recommended for implementation
that would reduce the potential impacts to a level of
-. ~....~insignificance.
Sources: Field Verification
Submitted Plans
Tustin city Code
Certified EIR 90-1
Pacific Center East Specific Plan
a.
Be
Planninq Area 6 Mitiqation/Monitorinq Required:.. None
Required.
Site Rehabilitation 'Mitiqation/Monitoring Required:
Mitigation measures" which are applicable to the Site
Rehabilitation have been previously identified in Item
16B Mitigation Measures above.
19. AESTHETICS
"No": Although-there is no actual development proposed with
the Planning Area 6 Concept Plan, th. Area Plan does establish
a guide for future development proposals. The proposed Area
Plan is consistent with the PCESP and recognizes that the
existing building proposed for site rehabilitation would
remain to accommodate the proposed retail use. The Site
Rehabilitation proposes significant physical improvements to
the existing building which would improve the aesthetic value
of the site and area, consistent with the Urban Design
elements of the PCESP.
The PCESP requires all development proposal to be considered
by the Planning Commission, with final Design Review authority
resting with the Redevelopment Agency to ensure compliance
with the PCESP requirements and the South/Central
Redevelopment Area Plan.
EIR 90-1 identified impacts to the entire Specific Plan
related to aesthetics. Consequently, mitigation measures were
identified in EIR 90-1 and are recommended for implementation
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 18
that would reduce the potential impacts to a level of
insignificance.
Sources: Field Verification
Submitted Plans
Tustin City Code
Certified EIR 90-1
Pacific Center East Specific Plan
a.
Planning Area 6 Mitigation/Monitoring Required:
required at this time.
None
B. Site Rehabilitation Mitigation/Monitoring Required: None -- Required.
20. RECREATION
"No": The Planning Area 6 Concept Plan is consistent with the
Land Use Plan of the PCESP. No recreation facilities would be
provided as this is a .commercial development. The site
rehabilitation would accommodate a retail operation which is
consistent with past uses within the. building and would not
create a demand for additional recreational facilities.
EIR 90-1 did not identifyanypotential impacts related to the
quality.of recreation. As noted above in Background Section,
no additional impacts have been identified.
Sources: Field Verification.
Submitted Plans
Tustin City Code
Certified EIR 90-1
Pacific Center East Specific Plan
ao
Planning Area 6 Mitigation/Monitoring Required: None
Required.
Bo
Site Rehabilitation Mitigation/Monitoring Required: None
Required.
21. CULTURAL RESOUP. CES
Items A through D - "No": No actual development is proposed
with the Planning Area 6 Concept Plan that would result in
grading of vacant property. The site rehabilitation would
make improvements to an already developed property. The
Planning Area and rehabilitation site is not within an area
identified as an archaeological site.
EIR 90-1 identified impacts to the entire Specific Plan area
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 19
related to possible archaeological finds as a result of
development of vacant properties. Consequently, mitigation
measures were identified and are recommended, for
implementation.
Sources: Field Verification
Submitted Plans
Tustin City Code
Certified EIR 85-2
East Tustin Specific Plan
a.
Planninq Area 6 Mitigation/Monitoring Required:..
Mitigation measures applicable to-the Planning Area 6
Concept Plan have been previously identified in Item iA
Mitigation Measures above.
Bo
Site Rehabilitation Mitigation/Monitoring Required: None
Required.
22. ~~TORY FINDINGS OF SX~NIFIC~%NCE
Items A, B, C and D - "No": The city Council considered the
benefits of the specific plan and balanced those benefits
against the projects unavoidable effects and chose to adopt a
statement of overriding considerations, particularly related
to air quality, noise~and traffic/circulation. The Planning
Area 6 Concept Plan and the Site Rehabilitation in and of
itself would not cause negative impacts to wildlife habitat
nor -achieve any short-term environmental goals, nor have
impacts which are potentially individually limited but are
cumulatively considerable and could potentially have an
indirect adverse impact on human beings. EIR 90-1 addressed
all of these concerns and this 'project is fully within the
scope of that discussion.
Source: As previously noted
Mitiqation/Monitorin~ Required: As previously noted.
Part III - Initial Study Responses
DR 93-020, VAR 93-004, CUP 93-027
Page 2 0
P~RT IV - DETERHIN'ATION
ZI~TL%L STUDY RESPONSES FOR .
DZSPOSZTZON ~ DEVELOPN. ENT AGRE~
BY ~D ~ON~
THE TUSTIN COHI, IUN~TY REDEVELOPHENT ~,~ENCY~ THE ~ITY OF TUST~'N
C~TELLUS DEVELOPHENT CORPORS~T'rON
I~ICRO ELECTRONICS · INC.
On the basis of this initial evaluation:
I find that the proposed prQject ~AS utilized all feasible
mitigation measures as identified in Final Environmental Impact
Report 90-1 certified on December 17, 1990. EIR 90-1 for the
Pacific Center East Specific Plan 'is adequate to serve as the
Program EIR for the project as significant imPacts were identified
and corresponding mitigation measures were recommended to be
incorporated into the approval process. Therefore, no additional
documentation is required. ~
DATE SIGNATURE
DISPOSmON AND DEVELOPMENT AGREEMENT
DISPOSITION AND DEVELOPMENT AGREEMENT
by and among
THE TUSTIN COMMUNITY REDEVELOPMENT AGENCY
THE ciTY OF TUSTIN
CATELLUS DEVELOPMENT CORPORATION,
a Delaware Corporation
,.
as Property Owner
and
MICRO ELECTRONICS, INC.,
a Delaware Corporation
as Tenant
· June 20, 1994
DISPOSITION ~
T~%BLE OF CONTENTS
Io
[ 100 ] SUBJECT OF AGREEMENT ................
A. [ 101 ] Purpose of Agreement ..........
B. [ 102 ] The Redevelopment Plan ...... '- · -
Ce
De
[1033
[1043
1. [105]
2. [106]
3.--,--[107]
4. [108]
5. [109]
'6. [110]
The site ..... ...........
Parties to the Agreement ........
The Agency/The City' . .......
The Property Owner ........
Representat ions of t~e Property
Owner ' . ..............
The Tenant .............
Representations of the Tenant . · ·
Relationship of Agency to Property
Owner and Tenant ..........
[111]
[113]
Tenant Lease of the Site ........
Agency Not a party to Lease .......
~-~-. [200]
A.
Be
De
Ge
DEVELOPMENT OFT HE SITE ...........
[201]
Division of Responsibility Between
Property Owner and Tenant ........
[202]
[203]
Scope of Development ..........
Site Plan; Landscape Plan; Elevations and
Master Sign Program ...........
[204]
[205]
[206]
Condition of Approval Agreements' · · · -
Cost of Construction ..........
Agency--No Responsibility for Development
of site .................
[207]
Construction Schedule ..........
III. [300]
A.
AGENCY FINANCIAL ASSISTANCE TO' TENANT ....
[301] Purpose of FinanCial Assistance .....
i
S.
Ko
Me
Oo
[400]
&.
Bo
Co
Do
[302]
[303]
[304]
[3o5]
[306]
[307]
[308]
[309]
[31o]
[311]
[312]
[313]
[314]
[315]
[316]
[401]
[402]
[403]
[404]
Maximum Level of Assistance ....... 8
Term of Assistance ........... 8
Basis· for Determining Annual Assistance
Payments ................ 8
Determination of Threshold Level .... 9
Definition of Excess Sales Tax ..... 9
Definition of Annual Assistance Payment
Percentage ............... 9
Application of Annual Assistance
Percentage in Determining Annual
Assistance Payment ........... 9
Computation of 1993 Present Value of
Cumulative Financial Assistance ..... 10
Basis for Measuring Sales Tax Receipts by
City .................. 11
Schedule of Assistance Payments ..... 11
No Financial AssistanCe If Threshold
Level Not..Met ........ . ..... 11
Effect of Changes in State Law ..... 11
Sales Tax for Computational Purposes
Only .................. 12
Source of Assistance Payments ...... 12
Tenant Obligations ........... 12
USE OF THE SITE ............... 13
Uses .................. 13
Maintenance of the Site ......... 14
Prohibition Against Change in Tenant or
Use ................... 14
Remedy for Change in Tenant or Change in
Use ................... 14
ii
Ze
[405]
Effect and Duration of Covenant in
Sections 401 and 402 .......... 15
Ve
[500]
A.
B.
[501]
[502]
1.
·
INDEMNIFICATION AND INSURANCE ........ 15
Indemnification - 15
· · · · · · · · · · · ·' ·
Insurance ................ 16
[503] Insurance Provided h¥ Property
Owner ............... 16
[504] Insurance Provided by Tenant .... 16
vi. [600]
A.
Be
C·
VII. [700]
A.
Be
C·
E·
F·
G·
[601]
[602]
[603]
[604]
[7013
[7023
[703]
[704]
[705]
[7063
[707]
[708]
NONDISCRIMINATION .............. 17
Nondiscrimination--General ....... 17
.
Nondiscrimination--Rental, Sale or
Lease .............. , . . . 17
Effect and Duration of Covenant ..... 18
Amendment of Lease .. .......... 19
GENERAL PROVISIONS .............. 19
Local, State and Federal Laws ...... 19
Taxes, Assessments, Encumbrances and
Liens .................. 19
Rights of Access- . ........... 19
Notice of Default to the Terms of the
Lease (Attachment 3) .......... 19
Effect of Violation of the Terms and
Provisions of this Agreement ...... 20
Notices, Demands and Communications Between
the Parties ............... 20
Conflicts of Interest .. ......... 21
Enforced Delay; Extension of Times
Performance ............... 21
iii
I. [709]
Nonliability of Officials and Employees
of the Agency .............. 22
VIII· [800]
A. [801]
B. [802]
1.
·
·
c. [806]
D. [807]
[808]
1.
·
IX. [900]
A.
Be
DEFAULTS AND REMEDIES ............ 22
Defaults -- General ............ . 22
Legal Actions .............. 23
[803] Institution of Legal Actions .... 23
[804] Applicable Law ........... 23
[805] Acceptance of Service Of Process . . 23
Rights and'Remedies Are Cumulative . . . 23
· Inaction Not a Waiver of Default .... 24
[809]
[810]
Remedies and Rights of Termination . . . 24
Damages .............. 24
Specific Performance ........ 24
[901]
[902]
SPECIAL PROVISIONS . ' ............. 24
SucceSsors In Interest ......... 24
Amendments to this Agreement ...... 25
X. [1000] ENTIRE AGREEMENT, WAIVERS .......... 25
XI. [1100] DATE OF THE AGREEMENT BY AGENCY ....... 25
iv
Attachment 1
Attachment 2
Attachment 3
Attachment 4
Attachment 5
Attachment 6
Attachment 7
Attachment 8
Attachment 9
Attachment 10
ATTACHMENTS
Site Map
Legal Description
Lease Between Tenant
and Property Owner
Schedule of Performance
Scope of Development
Planning Commission and
Redevelopment Agency Resolutions
Site Plan, Elevation Plan,
Landscape Plan, Sign Plan
Agreement to Conditions Imposed
Agreement to be Recorded
Affecting Real Property
Calculation of Annual Assistance
Payment and Present
Value
v
DISPOSITION AND DEVELOPMENT ~REEMENT
THIS AGREEMENT is entered into by and among the CITY OF TUSTIN, a
municipal corporation ("CITY"), the TUSTIN COMMUNITY REDEVELOPMENT
AGENCY, a public body, corporate and politic, to wit, a California
community redevelopment agency (the "Agency"), MICRO ELECTRONICS
INC., a Delaware Corporation (the "Tenant"), and the CATELLUS
DEVELOPMENT CORPORATION, a Delaware Corporation, (the "Property
Owner").
The City, the Agency, the Property Owner and the Tenant hereby
agree as follows:
I. [100] SUBJECT OF ]%GREEMENT
.A. [101]
Purpose of-Agreement
The general purpose of this Agreement is to promote the
implementation and realization of the objectives of the
Redevelopment Plan (the "Redevelopment Plan") for the south central'
Redevelopment Project Area (the "Project Area"), such as providing
for the rehabilitation of structures and improvements of certain
property situated within the Project Area~and the redevelopment of
land by private enterprise for uses in accordance with the
.Redevelopment Plan.
That portion .of the Project Area to be developed pursuant to
this Agreement (the "Site") is depicted on the Site Map, which is
attached hereto as Attachment 1 and incorporated herein by
reference.
This Agreement is entered into for the specific purpose of
developing the Site and not for speculation in land holding.
Completing the development on the Site pursuant to this Agreement
is in the vital and best interest of the City and-the health,
safety, morals and welfare of its residents, and in accord with the
public purposes and provisions of applicable state and local laws
and requirements under which the Project has been undertaken.
Completing the development on the Site will also eliminate blight
in the ProjectArea, provide additional jobs for the community and
substantially improve the economic and physical conditions of the
community in accordance with the purposes and goals of the
Redevelopment Plan.
B. [102] The Redevelopment Plan
This Agreement is subject to the provisions of the
Redevelopment Plan which was approved and adopted by the City
Council of the City of Tustin by ordinance No. 890 as amended by
ordinance No. 939. Said ordinances and The Redevelopment Plan, as
amended, are incorporated herein by reference and made a part
hereof.
C. [103 ] The site
The site is a portion of the property included within the
development area commonly known as "Pacific Center East" and
designated on the Site Map (Attachment No. 1) and described in the
"Legal Description", which is attached hereto as Attachment No. 2
and is .incorporated herein by reference. The Site is currently
owned by the Property Owner and leased to the Tenant.
D. [104]
Parties to the Aqreemen~
1. [105] The Aqenc¥/The city
The Agency is a public body, corporate and politic, exercising
governmental functions and powers and organized and existing under
Chapter 2 of the Community Redevelopment Law of the State of
california. 'The principal office and mailing address of the Agency
(for purposes of this Agreement) is located at 300 Centennial Way,
Tustin, CA 92680
"Agency", as used in this Agreement, includes the City of
Tustin Community RedevelOpment Agency, and any assignee of or
successor to its rights, powers and responsibilities.
"City", as used in this Agreement, includes the City of
Tustin, and any assignee of or successor to its rights, powers and
responsibilities.
2. [106] The Property Owner
The Property Owner is CATELLUS DEVELOPMENT CORPORATION, a
Delaware corporation. The principal office and mailing' address of
the PropertyOwner for the purposes of this Agreement is located at
1065 North PacifiCenter Drive, suite 200, Anaheim, CA 92806, Attn:
Asset Management.
3. [107] Representations of the Property Owner
The Property Owner represents and warrants to the Agency that
the Property Owner has the experience, qualifications and legal
status necessary to perform as Property Owner pursuant to this
Agreement.
Property Owner represents and warrants to the Agency as
follows:
a. The Property Owner is duly incorporated and in
good standing under the laws oft he State of Delaware and has duly
authorized, executed and delivered this Agreement and any and all
other agreements and documents required to be executed and
delivered by the Property Owner in order to carry out, give effect
to, and consummate the transactions contemplated by. this Agreement.
b. The Property Owner does not have any material
contingent obligations or any material contractual agreements which
could materially adversely affect the ability of the Property Owner
to carry out its obligations hereunder.
c. There are no material pending or, so far as i~
known to the Property Owner, threatened, legal proceedings to which
the Property Owner is or maybe made a party otto which any of its
property is or may become subject, which has not been fully
disclosed in the material- submitted to the Agency which could
materially adversely affect the ability of the Property Owner to
carry out its obligations hereunder.
d. There is no action or proceeding pending or, to
the Property Owner'sbestknowledge, threatened, looking toward the
dissolution or liquidation of the Property Owner, and there is no
action or proceeding pending or, to the Property Owner's best
knowledge, threatened by or against the Property Owner which could
affect the validity and enforceability of the terms of this
Agreement, or materially 'and adversely affect the ability of the
Property Owner to carry out its obligations hereunder.
e. The Property Owner has performed all of its
obligations t°beperformed at or prior to this date.in accordance
with the Schedule of Performance, attached hereto as Attachment 4,
and is not in default hereunder.
Each of the foregoing items a to e, inclusive, shall be deemed
to be an ongoing representation and warranty. The Property Owner
shall promptly advise the Agency in writing if there is any change
pertaining to any matters set forth or referenced in the foregoing
items a to e, inclusive.
Ail of the terms, covenants and conditions of this Agreement
shall be binding upon and shall inure to the benefit of the Parties
and the permitted successors and assigns of the Parties. Whenever
the term "Property Owner" is used herein, such term shall include
any other permitted successors and assigns as herein provided.
4. [108] The Tenant
The Tenant is Micro Electronics, Inc., a Delaware corporation.
The principal office and mailing address of the Tenant for the
purposes of this Agreement is 1555Lane Avenue, Col%kmbus, OH 43221,
Attn: Richard Mershad, Vice President.
5. [109] Representations of the Tenan~
The' Tenant represents and warrants to the Agency that the
Tenant has the experience, qualifications and legal, status
necessarY to perform as Tenant pursuant to this Agreement.
The Tenant represents and warrants to the Agency as follows:
a. The Tenant is duly incorporated and in good
standing under the laws'of the State of Delaware and has duly
authorized, executed and delivered this Agreement and any and all
Other agreements and documents required to be executed and
delivered by the Tenant in order to carryout, give effect to, and
consummate the transactions'contemplated by this Agreement.
b. The Tenant does not have any material
contingent obligations or any material contractual agreements which
could materially adversely affect the ability of the Tenant-to
carry out its obligations hereunder.
c. There are no material pending or, so far as is
known to the Tenant, threatened, legal proceedings to which the
Tenant is or may be made a party or to which any of its property is
or may become subject, which has not been fully disclosed in the
material submitted to the Agency which could materially adversely
affect the ability of the Tenant to carry out its obligations
hereunder.
d. There is no action or proceeding pending or, to
the Tenant's best knowledge, threatened, looking toward the
dissolution or liquidation of the Tenant, and there is no action or
proceeding pending, or, to the Tenant's best knowledge,-threatened
by or against the Tenant which could affect the validity and
enforceability of the terms of this Agreement, or materially and
adversely affect the ability of the Tenant to carry out its
obligations hereunder.
e. The Tenant has performed all of its obligations
to be performed at or prior to this date in accordance with the
Schedule of Performance, attached hereto as Attachment 4, and is
not in default hereunder.
Each of the foregoing items a to e, inclusive, shall be deemed
to be an ongoing representation and warranty.. The Tenant shall
promptly advise the Agency in writing if there is any change
pertaining to any matters set forth or referenced in the foregoing
items a to e, inclusive.
6. Ill0]
Relationship of Agency to property Owner
and Tenant
It is hereby acknowledged that the relationship of the Agency
to the Property Owner and/or Tenant is not that of a partnership
nor joint venture and that the Agency shall not be deemed or
construed for any purpose to be the agent, of the Property Owner or
the Tenant. Neither the Property Owner nor the Tenant shall be
deemed or construed to be the agent of the Agency.
E. [lll]
Tenant'Lease of the Site
The Tenant has leased the. Site from the Property Owner for a
period of fifteen years, with options to renew, pursuant to a Lease
Agreement entered into on August 31, 1993 (the "Lease"). A copy of
this lease is attached hereto as Attachment No. 3 and is
incorporated herein by reference.
F. [113]
Agency Not a Party t°. Lease
.,
Nothing herein nor by any other action of the Agency shall
make the Agency a party to the Lease in any manner whatsoever.
Agency shall have no obligations under the Lease and shall not be
held responsible for any actionstaken by the Property Owner and/or
the Tenant pursuant to the provisions of the Lease.
[200]
DEVELOPI~Eh'T OF THE BITE
A. [201]
Division of Responsibility Between Promertv
Owner and Tenant
Wherever, in this Agreement, the Property Owner and the Tenant
are identified as responsible for complying with the provisions of
this Agreement, the specific determination of responsibility
between the Property Owner and the Tenant shall be determined by
the Lease (Attachment 3). When the Lease does not indicate
respective responsibility, both the Property Owner and the Tenant
shall be jointly responsible for complying with the provisions of
this Agreement.
~ B. [202] Scope of Development
The Property Owner and the Tenant shall, by the respective
times established therefor in the Schedule of Performance
(Attachment 4): (i) commence and completeorcause to be commenced
and completed all of the "Site Improvements", all as more fully
described in the "Scope of Development", which is attached.hereto
as Attachment No. 5 and is incorporated herein by reference; (ii)
complete the development of "Phase I Improvements" (as defined in
the Scope of Development [Attachment 5]); (iii) complete the
development of "Phase II Improvements" (as defined in the Scope of
Development [(Attachment 5]); and (iv) cause the completion of
"Phase III Improvements" (as definedin the Scope of Development
[Attachment 5]).
As of the time established in this Agreement for completion of
the Site Improvements, as hereinafter defined in the Scope of'
Development (Attachment 5), the Property~Owner and Tenant shall
have: (i) developed and established on the Site the Use as defined
in Section 401 of this Agreement and (ii) completed the Site
Improvements in conformity with this Agreement, including, but
without limitation, the entire Scope of Development (Attachment 5).
The Property Owner and Tenant shall construct or cause to be
constructed the Site Improvements in compliance with all the
zoning, planning and design review requirements of the City of
Tustin, the Redevelopment Plan, the Municipal Code of the City of
Tustin and the Pacific .Center. East Specific Plan.
Ail construction undertaken on the Site or as part of the Site
Improvements shall conform t6 all conditions and requirements of:
1. Planning Commission Resolution No. 3177
conditionally approving the Planning Area 6 Concept Plan for the
Pacific Center East Specific Plan;
2. Planning Commission Resolution No. 3178 approving
Variance No. 93-004;
3. Planning Commission Resolution No. 3179 approving
Conditional Use Permit No. 93-027;
4. Planning Commission Resolution No. 3180 recommending
approval of Design Review 93-020;
5. Redevelopment Agency Resolution No. RDA 93-13
approving Design Review 93-020.
Planning Commission Resolutions No. 3177, 3178, 3179 and 3180'
and Redevelopment Agency Resolution No. 93-020, including
conditions of approval, are attached hereto as Attachment 6 and
included herein by reference.
C. [203]
Site Plan; Landscape Plan; Elevations and
Master Sign program
As part of their respective actions, the Planning Commission
and the Redevelopment Agency approved a site plan, building
elevations, a landscape plan and a master sign program. The
exhibits used by the Planning Commission and Redevelopment Agency
for consideration and approval are attached hereto as Attachment 7
and are incorporated herein by reference as part of the Scope of
Development.
D. [204]
~Condition of ApProval Agreements
As a condition of approval for Planning Commission Resolutions
No. 3177, 3178, 3179 and 3180 and of Redevelopment Agency
Resolution No. RDA 93-13, the Property Owner and the Tenant were
required to sign-.an "Agreement to Conditions Imposed." This
agreement is attached hereto as Attachment 8 and is incorporated
herein by reference.
E. [2O5]
Cost of Construction
Ail costs for planning, designing, developing and constructing
all Site-Improvements, and all demolition and site preparation
costs, as well as all infrastructure costs, shall be borne by the
Landlord and/or Tenant, as applicable. The Property Owner and the
Tenant shall complete or cause to be completed all of the
improvements set forth in'~the Scope of Development (Attachment 5)
to be constructed on the site and all infrastructure improvements
required in connection, with-the City's entitlement process to be
provided by the Property Owner and Tenant or otherwise described in
the Scope of Development (Attachment 5).
F. [206]
Agency--No Responsibility for Development of
Site
The Agency has no responsibility for the'development of The
Site and nothing herein shall imply, nor be construed, to place any
such responsibility on the Agency.
G. [207]
Construction Schedule
After the effective date of this Agreement, the Property Owner
and the Tenant shall promptly begin and thereafter diligently
prosecute to completion the construction of the Site Improvements
and the development of the Site. The Property Owner and the Tenant
shall .begin and complete all construction and development within
the respective times specified therefor in the Schedule of
Performance (Attachment 4). In any event, the Property Owner and
the Tenant shall complete all construction and development of Site
Improvements no later than the respective times provided therefore
in the Schedule of Performance (Attachment 4).
xzz. [:~oo]
~GENCY FINI~CI~I, ~8ZST~.I~CE TO T~
A. [301] P~rpose of FinanCial Assistanc~
The purpose of the Financial Assistance is to assist the
Property Owner and the Tenant with Costs for improvements that are
extraordinary to the Site and which make the Project financially
infeasible fort he private sector,-acting 9~one, unless alleviated
by Agency assistance.
B. [302]
Max~m~m Level of Assistance
The maximum level of assistance to Tenant, paid over the term
of this Agreement, shall, when discounted annually at an 8%
discount rate, be a 1993 present value of $638,000. Actual
payments may total in excess of $638,000, but the 1993 present
discounted at 8% annually shall
value of all assistance paYments, .. '
not exceed $638,000. The method of calculation of the present
value shall be as outlined in Section 308.
C. [303]
Term of Assistance
Agency assistance tothe Tenant will be limited to the number
of years required for Tenant to receive the maximum level of
assistance allowed pursuant to Section 302 of this Agreement but,
in no event, shall be longer than ten (10) years from the issuance
· ' e
of a Certlflcat of Occupancy, whether or not Tenant has received
the maximum amount of assistance.
D. [304]
Basis for Determining Annual Assistanc9
Payments
The annual amount of assistance to the Tenant will be based on
sales tax generated by the Tenant at the Site in excess of the
Threshold Level as defined in Section 305 of this Agreement. Only
sales tax allocated to the City of Tustin as the point of sale by
the Tenant will be utilized to determine eligibility and amount of
assistahce. Tenant shall receive annual assistance based on a
certain percentage of the sales tax the City receives in excess of
a threshold which the City could reasonably expect to receive from
an unassisted retail operator in the same building (the ,'Threshold
Level"), as prescribed in this Agreement. The Tenant shall not
receive any assistance in any year in which the sales tax
attributable to the Tenant's business operations at the Site are
less than the Threshold Level.
E. [305]
Determination of Threshold Level
The Threshold Level shall be the sales tax which th~ City
believes it could reasonably be expected to receive from an
alternative higher margin, lower, volume retailer operating on the
site before improvements made by The Tenant. The Threshold Level
is based on an assumed first year annual sales tax from taxable
sales equal to Two Hundred Twenty-five Dollars ($225) per square
foot .or Eight .Million, Nine Hundred Ten Thousand Dollars
($8,910,000), which adjusts annually based on projected increases
in sales for an alternative higher margin, lower volume retailer
operating on the site. The basis for these adjustments.are shown
in Attachment 10. Sales tax to be paid to the City is based on 1%
of theannual taxable sales. The annual sales tax Threshold Levels
are as follows: '~'
Year 1 $89,100
Year 2 $99,792
Year 3 $107,775
Year 4 $112,086
Year 5 $116,570
Year 6 $121,233
Year 7 $126,082 .
Year 8 $131,125
Year 9 $136,370
Year 10 $141,825
F. [306]
Definition of Excess Sales TaM
The difference between the total sales tax actually received
by the City of Tustin pursuant to Section 304 of this Agreement
and the Threshold Level pursuant-to Section 305 of this Agreement
shall be defined as "Excess Sales Tax".
G. [307]
Definition of Annual Assistance Payment
Percentage
The annual assistance payment percentage will be equal to
twenty-four percent (24%) of the annual Excess Sales Tax.
H. [308] ADDlication of Annual Assistance Percentage
Provided that the present value of all payments shall not
exceed the maximum level of assistance, as defined in Section 302,
9
the Annual Assistance Payment in any year shall be equal to the
Annual Assistance Percentage, as defined in Section 307, multiplied
by the Excess Sales Tax received by the City in that year, as
defined in Section 306. In no event shall Tenant receive payments
with an accumulated present value-greater than the maximum level of
assistance or for a term longer than that specified in Section 303.
I. [309] Computation of Annual Assistance Payment
For any year.that the Tenant is entitled to receive an Annual
Assistance Payment, that payment shall be the lesser of:
1. The Annual Assistance Percentage multiplied by the
Excess Sales Tax for that year, or
2. An amount which, when discounted by the Present
Value Factor for that year, and added to the accumulated present
value of Assistance Payments -from all prior years, equals the
maximum level of assistance. In any year, this amount is equal to
that.portion of the maximum level of assistance not yet received
during all previous years multipliedbytheFuture ValueFactor, as
defined in this Section 309.
For the purpose of computing the present value of Annual
Assistance Payments to determine if the maximum level of Assistance
has been paid, each year's Annual. Assistance Payment shall be
multipliedbythe Present Value Factor for that year, as defined in
this Section 309, and added to the present value of the Annual
Assistance Payments for all prior years.
For the specified 8% discount rate, the Future Value and
Present Value Factors for eachyear which shall be utilized in the
computation of the Annual Assistance Payments shall be:
FUTURE V'ALUE PRESENT VALUE
1 1.080000 0.925926
2 1.1166400 0.857339
3 1.259712 0.793832
4 1.360489 0.735030
5 1.469328 0.680583
6 1.586874 0.630170
7 1.713824 0.583490
8 1.850930 0.540269
9 1.999005 0.500'249
10 2.158925 0.463193
Attachment 10 presents an illustration of the calculation' of
the Annual Assistance Payments based on a projection of Micro
Center sales provided by the Tenant. The actual sales and
10
resultant Annual Assistance Payments may differ frOm the
projections.
J. [310] Basis for'Measuring,Sales Tax Receipts by City
Payments to the Tenant shall be based on quarterly sales tax
returns filed with the California State Board of Equalization for
all business operations on the Site required pursuant to California
Revenue and Taxation Code, Section 6452, (Subject to. audit by the
State Board of Equalization),and the actual amount of. sales tax
actually allocated and paid to the City.. A copy of each.quarterly
sales tax return shall be supplied by Tenant to the City. This
information, subject to audit by City, the Agency and/or the State
Board of Equalization, will be utilized each year by the Agency and
the City for the purpose of determining the level of assistance.
K. [311] ~ Schedule of Assistance Payment~
·
Payment shall be.made to the Tenant. annually. The first
assistance payment will be made within thirty (30) days following
the close of the first four full calendar.quarters of the Tenant's
retail operations on the Site following the issuance of a
Certificate of Occupancy for the Project, Annual payments, where
eligible, shall continue annually until the Tenant receives the
maximum financial assistance pursuant, to SectiOn 302. Whether or
not the Tenant receives the maximumfinancial assistance pursuant
to Section 302, payments shall not b e made beyond the ten (10) year
term of this Agreement.
L. [312]
No Financial Assistance If Threshold Level Not
Met
Neither the. City nor the Agency shall have an obligation to
provide any level of financial assistance in any year that the
sales tax received bythe City does not exceed the Threshold Level.
The term of this agreement as defined in Section 303 shall not be
extended because of the failure of the Tenant to exceed the
Threshold Level in one or.more years.
M. [313]
~ffect of Changes in State Law
In the event that California law governing the payment and/or
distribution of retail sales tax is amended in such a manner as to
reduce the amount of sales tax apportioned and paid to the City
based on point of sale ("Sales Tax Change"), the Tenant shall be
entitled to assistance payments only if sales tax revenues
apportioned and paid to the City based on point of sales in a
payment year meet the applicable Threshold Level in Section 305,
11
above, for the appropriate year in which the payment is due.
For the purpose of calculating the Agency's payment to the
Tenant, any reduction in sales tax received bythe City as a result
of Sales Tax ~Change shall be offset by the amount of any sales,
use, value-added or excise tax enacted in the future and paid to
the City to specifically replace or supplement sales tax loss as a
result of a sales Tax Change (,,Replacement Taxes"), to the extent
anysuch Replacement Taxes collected byor received by the City are
measured or determined on a point of sale basis, and to the extent
· · · S
that any other 'sales or use tax dxstrxbutlon to the City may be
determined by reference to the amount of sales or use taxes
generated by the Use, as defined in Section 401, on the Site.
Notwithstanding Replacement Taxes, to the extent that a Sales
Tax Change reduces the revenue received by the City to below the
Threshold Level or causes the reduction in payments to the Tenant,
all assistance payments which have not become due and payable to
the Tenant pursuant to the payment formula outlined herein shall no
longer be an obligation of the Agency.
-.
N. [ 314 ] Sales Taw for Computational purposes Only
The reference to sales tax for purposes of computing any
annual payment is solely for computational purposes. Sales tax
revenue allocated to the City is ~n°t herein pledged.
·
o. [315]
Source of Assistance Payments
The Agency and the City reserve the right to make annual
payments by the Agency, as an obligation of the Agency secured
solely by and payable from tax increment revenue of the Agency.
The City may, at its sole discretion, lend funds for payments to
the Agency from the General Fund, or.make such payments on behalf
of the Agency from whatever source it deems appropriate.
p. [316]
Tenant Obliqations.
The Tenant shall-informthe Agency, in writing, as to how it
will determine point of sale for purposes of collection of
California Sales Tax and~otake such actions'as are appropriate to
maximize the collection of sales tax in the City of Tustin from the
conduct of the Tenant's retail business at all times from and after
execution of this Agreement and continuing so long as Tenant
operates a business on the subject premises.
Tenant further agrees to immediately register with the
California State Board of Equalization so that all taxable sales at
the Tustin site (retail and catalogue sales) will apply to the full
12
one percent (1%) sales tax to be apportioned to the City of Tustin.
Tenant further agrees that its California address shall be
established as being in the City of Tustin for purposes Of
reporting point of sales to the California State Board of
Equalization.
TV. [400]
USE OF THE SITE
A. [401] Use
The Tenant owns and operates a national chain of retail
computer stores, commonly known as "Micro Center, The Electronic
Superstore" (the "Use"). The identity and nature of the Use is of
particular concern to the City and the Agency. It is because.
Tenant is.locatingthe Use on the Sitethat~the Agency has entered
into this Agreement with the Property Owner and the Tenant.
The Tenant covenants and agrees for itself, its successors,
its assigns, and every successor in interest to the Site or any
Partthereof, that during construction andthereafter, the Tenant,
such successors and such assignees, shall devote the Site to the
uses specified in the Redevelopment Plan, the Agreement To Be
Recorded Affecting Real Property (Attachment 9), and this
Agreement, for the periods of time. specifiedtherein. Specifically
the Site shall be used for a "Micro Center, The Electronic
Superstore" of approximately 45,600 square feet in size. Operation
of the Site for the Use by'the Tenant shall be required to continue
without interruption greater than thirty (30) days, except as
allowed under Section 708, hereof, for a period of not less than
ten (10) years from the issuance of a Certificate of Occupancy.
Additionally, the Tenant, such successors and assignees, shall
comply with all applicable laws regarding their operations and use
of the Site. The foregoing covenant, shall run with the land.
Prior to end of ten (i0) years or the term of this Agreement,
whichever is longer, neither the Property Owner nor the Tenant
shall change, or cause to be changed, for any reason other than
default by one or the other of the parties under the terms of the
Lease (Attachment 3), the Use, without the prior written approval
of the Agency. .Approval to a change of the Use shall be at the
sole discretion of the Agency, which shall have no obligation to
approve such change. If the Use is changed because of the default
of one or the other parties under the terms of the Lease
(Attachment 3), the defaulting party, as determined solely by the
Agency,.shall be subject to the provisions of Section 404.
13
B. [402]
Maintenance oft he Sit~
The Tenant and/or the Property Owner, as applicable, shall
maintain the improvements on the Site and shall keep the Site free
from any accumulation of debris and waste materials.. The Tenant
and/or Property Owner, as applicable, shall maintain the
landscaping required to be planted under the Scope of Develgpment
(Attachment 5) in a healthy condition.
C. [403]
Prohibition Against Chanqe in Tenant or Use'
The qualifications, identity and nature of business of the
Tenant and the Use are of particular concern to the City and the
Agency.'- It is because of those:qualifications, and identity that
the Agency has entered into this Agreement with the Property Owner
and the Tenant. No voluntary or involuntary successor in interest
of the Tenant shall acquire any rights or powers under this
Agreement except as expressly set forth herein. --~'~
Prior to the endof-"the term of this Agreement, neither the
Property Owner nor the Tenant shall assign or transfer all or any
part of this Agreement or the site or any rights hereunder, nor
shall the Use be changed, without the prior written approval of the-
Agency, if such assignment or transfer shall have an effect on the
Use on the site. If such an assignment or transfer is proposed or
a change of Tenant or Use is proposed which shall have no material
effect on the Agency or on the pro~ected sales tax revenues to the
City, the Agency shall not Unreasonably withhold approval of such
an assignment, transfer,fchange of Tenant or change of Use. Whether
"o'~'-not such as~ignment~'or transfer shall have an effect on the Use,
the Property'OWner or t~e Tenant, as appropriate, shall notify the
Agency, in-writing; thirty (30)'days prior to all such assigns or
transferS.
D. [404]
Remedy for Chanqe in Tenant or Chanqe in use
In the event, after issuance of a certificate of occupancy,
the Property Owner and/or the Tenant, at their option, with or
without approval of the Agency, elect to use the Site for a purpose
other than the Use outlined in Section 401 or elect to cease the
use of the Site altogether, except in the case of a default by
either of the parties under the terms of the Lease (Attachment 3),.
Tenant shall, uponwritten demand bythe Agency, pay to the Agency
a sum equal to the total of all Agency assistance paYments, as
outlined in this Agreement, made to Tenant from the date of
issuance of a certificate of occupancy through the date of the
change or cessation of Use, or made through five years after
issuance of a certificate of occupancy, whichever occurs first.
In the case of a default by either party under the terms of
14
the Lease (Attachment 3) which results in a change of the Use, the
defaulting party, as determined soley by the Agency, shall upon
written demand by the Agency, pay to the Agency a sum equal to the
total of all Agency assistance payments, as outlined in this
Agreement, made to Tenant from the date of issuance of a
certificate of occupancy through the date of the change or
cessation of Use, or made through five years after issuance of a
· certificate of occupancy, whichever occurs first. '
IssUance of the Certificate of Occupancy by the city shall not
affect the Tenant's or Property Owner's obligations under this
Section.
E. [405]
.Effect and Duration of Covenant in Section~
401.and 402
The covenants in Sections 401 and' 402 of this Agreement,
insofar as they relate tot he uses as required by the Redevelopment
Plan and maintenance"-~ the improvements on the Site and keeping
the Site free of debris and waste material, shall remain in effect
until the termination date of the Redevelopment Plan as such Plan
may .be amended from time to time by proper amendment thereto.
v. [500]
INDEI~IFZCATIONAND INSURANCE
A. [501] IndemnifiCation
The. Property Owner and the Tenant, each for their own actions
and responsibilities under this Agreement and under the terms of
the Lease (Attachment 3), shall defend (at Agency's option),
indemnify, and hold harmless each of the Agency and the City, their
officers, employees, agents, representatives and volunteers
(collectively, the "Indemnified Parties") from and against any and
all claims, actions, liability, demands, suits, judgments, awards
and/or consequential damages of any kind and nature arising from or
related in any manner to (i) the activities of the Property Owner
and/or the Tenant, (ii) Tenant's occupancy and/or use of the site,
(iii) the prior acquisition of the Site by the Property Owner (iv)
the-disposition.of the Site pursuant to the Lease, (v) relocation
or removal of the Tenant from the Site (whether effected by the
Agency or the Property Owner) or (vi) the breach of this Agreement
or the Lease. This indemnity shall not apply to the Agency's
breach or default of any of the terms, conditions or covenants of
.thiS Agreement.
15
~ B. [502] Insurance
1. [503]
Insurance Provided by property Owne~
Property Owner shall maintain insurance insuring the
building on the Site against fire and "all risk" cQverage
(including earthquake/volcanic action, flood and/or surface water
insurance) for the full replacement cost of the building, with
deductibles not to exceed Fifteen Thousand Dollars ($15,000) per
occurrence. Property Owner shall also carry general liability
insurance in an amount of not less than Two Million Dollars
($2,000,000) per occurrence. Property Owner shall also maintain
all insurance required of it by the Lease (Attachment 3).
The City and the Agency shall be named as an additional
insured under all policies required under this Section 503.
Property Owner shall, deliver to Agency certificates of
insurance for all insurance required to be maintained pursuant to
this Section 503 within seven days after the execution of this
Agreement. Property Owner shall, at least ten days prior to the
expiration of the policy, furnish Agency with certificates of
renewal or "binders" thereof. Each certificate shall expressly
provide that such policies shall not be cancelable or otherwiSe
subject to modification except after thirtY (30) days prior written
notice to the parties named additional insured.
2. [504]
Insurance Provided by Tenant
Tenant shall maintain (i) commercial general liability
insurance in an amount of not less than Two Million Dollars
($2,000,000) per occurrence, (ii) comprehensive automobile
liability insurance having a combined single limit of not less than
Two Million Dollars ($2,000,000) per occurrence and insuring Tenant
against liability for claimsarising out of ownership, maintenance,
or use of any owned, hired or non-owned automobiles, (iii) worker's
compensation insurance having limits not less than those required
by state statute and federal statute, if applicable, and covering
all persons employed byTenant iht he conduct of its operations on
the Site, (iv) "Ail risk" property insurance including boiler and
machinery form, if applicable, covering damage to or loss of any of
Tenant's personal property, fixtures, equipment and alterations,
including data processing equipment and (v) all insurance required
of it by the Lease.
The City and the Agency shall be named as an additional
insured under all policies required under this Section 504.
Tenant shall deliver to Agency certificates of insurance
for' all insurance required to be maintained pursuant to this
16
Section 504 within seven days after the execution of this
Agreement. Tenant shall, at least ten days prior to the expiration
of the policy, furnish Agency with certificates of renewal or
"binders" thereof. Each certificate shall'expressly provide that
such policies shall not be cancelable or otherwise subject to
modification except after thirty (30) days prior written notice to
the parties named as additional insured.
vT. [600]
NONDISCRIMINATION
A. [601]
Nondiscrimination--General
The Tenant and the Property Owner, jointly and separately,
covenant by and for themselves 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 Tenant and the
Property.Owner, jointly and separately, for themselves or any person
claiming under or through them, 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.
The foregoing covenants shall run with the land.
B. [602]
Nondiscrimination--Rental, Sale or Lease
The Property Owner and the Tenant, jointly and separately,
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 substantially contain or be
subject to 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
claimingunder or through the~, 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 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
17
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."
·
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 n° discrimination against or
segregation of any person or group of persons on
account of race, color, creed, religion, sex,
marital, status, handicap, age, 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 selection, location, number, use
or occupancy of tenants, lessees, sublessees,
subtenants or vendees in the premises herein
leased."
·
In contracts: "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, 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-claimingunder 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. [603]
Effect and Duration of Covenant
The covenants in Sections 601 and 602 of this Agreement,
insofar as it relates to antidiscrimination, shall remain in effect
in perpetuity.
18
D. [604] A,endment of Lease
The Lease (Attachment 3) is hereby amended by Property Owner
and Tenant to include Section 602, Subsection 2, of this Agreement.
vxx. [7OOl
~ENElU~PROVXSXONS
A. [701]
Loc~!, State and Federal Laws
The Property Owner and the Tenant shall carry out all
construction of the improvements on the Site and all operations on
the Site in.conformitywithall applicable local, state and federal
laws, including allapplicable federal immigration laws and federal
and state labor standards, provided, however, the property Owner
and'the Tenant .and their contractors, successors, assigns,
transferees, and lessees are not waiving their rights to contest
any such laws, rules or standards.
B. [702]
Tawe~-_~, Assessments, EncumBrances and Liens
The Property Owner and/or the Tenant, as determined in the
Lease (Attachment 3) shall pay, when due, all real estate taxes and
assessments on the Site during the term of the Lease. · Nothing
herein contained shall be deemed, to prohibit the Property Owner
and/or the Tenant from contesting the validity or amounts of any
tax assessment, encumbrance or lien, nor to limit the remedies
available to the them in respect thereto.
c. [703]
Riqhts of Access
The Agency, for itself and for the City 'and other public
agencies, at their sole risk and expense, reserves the right to
enter the- Site, at a11-reasonable times, for the purpose of
construction, reconstruction, maintenance, repair or service of any
public improvements or public facilities located on the Site. Any
such entry shall be made °nly after reasonable notice to Property
Owner and/or Tenant, as appropriate, and Agency shall indemnify and
hold Property Owner and Tenant harmless from any costs, claims,
damages or liabilities pertaining to any entry. This Section 703
shall not be deemed to diminish any rights the Agency, the City, or
any other public agencies may have without reference to this
Section 703.
D. [704]
Notice of Default to the Terms of The Leas9
(Attachment 3~
A copy of any notice given by either party to the Lease
19
(Attachment 3) concerning the default by either party to the terms
of the Lease (Attachment 3), relating to the performance of either
party's obligations under this Agreement, shall be sent to the
Agency pursuant to the provisions of Section 706 of this Agreement.
E. [705]
Effect of Violation of the Terms and
Provisions of this Agreement
The Agency 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 and for the purposes of protecting
the interests of the community and other parties, public or
private, in whose favor and for whose benefit this Agreement and
the covenants running with the land have been provided. The
Agreement and the covenants shall run in favor of the Agency,
without regard to whether the Agency has been, remains or is an
owner of any land or interest therein in the Site or in the Project
Area. The Agency 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.
F. [706] Notices, Demands and Communications Between
the Parties
.
Written notices, demands and communications between and among
the Agency, the Property Owner and/or the Tenant Shall be
sufficiently given if (i) delivered byhand (and a receipt therefor
is obtained or is refused to be given), (ii) dispatched by
registered or certified mail, postage prepaid, return receipt
requested, or (iii) delivered by private delivery service (and a
receipt therefor is obtained or is refused to be given), to the
principal offices of the Agency, the City, the Property Owner
and/or the Tenant, as applicable. 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 706.
Any written notice, demand or communication shall be deemed
received immediately if delivered by hand, shall be deemed received
on the tenth day from the date it is postmarked if delivered by
registered or certified mail and shall be deemed received as of the
date of delivery shown in the records 'of the private delivery
service if delivered by such private delivery service.
Such notices shall be addressed and delivered to:
20
The Aaency:
Property Owne~:
Tenant:
William A. Huston, Executive Director
Tustin Community Redevelopment Agency
300 Centennial Way
Tustin, CA 92680
William A. Huston, City Manager
City of Tustin
300 Centennial Way
Tustin, CA 92680
Catellus Development Company
1065 North PacifiCenter Drive
suite 200
Anaheim, CA 92806
Attn: Asset Management
Micro Electronics, Inc.
1555 Lane Avenue
Columbus, Ohio 43221
Attn: Richard Mershad, Vice President
G. [707]
Conflicts of Interest
No member, official or employee of the Agency shall have any
personal interest, direct or indirect, in this Agreement, nor shall
any member, official or employee participate in any decision
relating to the Agre.ement which affects his personal interests or
the interests of any corporation, partnership or association in
which he is directly or indirectly interested. No member, official
or employee of the Agency shall be personally liable to the
Property Owner and/or the Tenant, or any successor in interest, in
the event of any default'or breach of the Agency, or for any amount
which may become due to the Property Owner and/or the Tenant or
successor or on any obligations under the terms of this Agreement.
The Property Owner and the Tenant, each, warrants that it has
not paid or given, and will not pay or give, any third party any
money or other consideration for obtaining this Agreement.
[7o8]
Enforced Delay; Extension of Times Performanc~
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 and the Attachments hereto shall be extended, where
delays -or defaults are due to: war; insurrection; strikes;
lockouts; riots; floods; earthquakes; fires; casualties; acts of
God; acts of the public enemy; epidemics; quarantine restrictions;
freight embargoes; lack of transportation; governmental
restrictions or priority; litigation; unusually severe weather;
21
inability to secure permits (if the inability to secure permits is
not the fault of the Property Owner and/or Tenant), necessary
labor, materials or tools; delays of any contractor, subcontractor
or supplier; acts or omissions of the other party; acts or failures
to act of the City of Tustin or any other public or governmental
agency or entity (other than the acts or failures to act of the
Agency which shall not excuse performance by the Agency); or any
other causes beyond the control or without the fault of the party
claiming an extension of time to perform. Notwithstanding anything
to the contrary 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
notice by the party claiming such extension is sent to the other
party within thirty '(30) days of the commencement of the cause.
Times of performance under this Agreement may also be extended in
writing by the mutual agreement of Agency, the Property Owner and/
or the Tenant, as appropriate.
I. [709]
Nonliability of Officials and Employees of the
Aqenc-f_
No member, official or e~ployee of the Agency or the City
shall be personally liable to the Property Owner and/or the Tenant,
or any successor in interest, in the event of any default or breach
by the Agency (or the City) or for _any amount which may become due
to the Tenant or its successors, or on any obligations under the
terms of this Agreement.
viii. [8oo]
DEFAULTS~IDR~IES
A. [801]
Defaults -- Genera]
Subject to the extensions of time set forth in Section 708,
failure or delay by any party to perform any term or provision of
this Agreement constitutes a default under this Agreement. The
party who so fails or delays must immediately commence to cure,
correct, or remedy such failure or delay, and shall complete such
cure, correction or remedy with diligence.
The injured party shall give written notice of default to the
party in default, as well as other persons or entities entitled to
notice hereunder, specifying the default complained of by the
injured party. Except as required to protect against further
damages, the injured party may not institute proceedings against
the par~y in default until thirty (30) days after giving such
notice or, provided thatthe party is proceeding with diligence to
cure, such greater time as may be necessary to cure given the
nature of the default. Failure or delay in giving such notice
shall not constitute a waiver of any default, nor shall it change
22
the time of default.
B. [802]
Legal Action~
[803]
Institution of Legal Actions
In addition to any other rights or remedies and subjecttothe
restrictions in Section 801, any party may institute legal action
to cure, correct or remedy any default, to recover damages for any
default, or to obtain any other remedy consistent withthe purpose
of this Agreement. Such legal actions must be instituted in the
Superior Court of the County of Orange, State of California, in an
appropriate municipal court in that county, or in the Federal
District Court in-the Central District of California.
2. [ 804 ] ApDlicable Law
The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
3. [805] Acceptance of Service of Process
In the event that any legal: action is commenced by the
Property Owner and/or the Tenant against the Agency, service of
process on the Agency 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 Agency
againstthe Property Owner and/or the Tenant, service of process on
the Property Owner and/or the Tenant shall be made by personal
service upon the local representative, charged with acting on behalf
of the Property owner and/or Tenant and shall be valid whether made
within or without the State of California or in such other manner
as maybe provided by law.
C. [806]
Rights and R~_medies Are Cumulative
Except as otherwise expressly stated in this Agreement, the
rights and remedies oft he parties are cumulative, and the exercise
by any party of one or more of such rights or remedies 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 any other party.
23
D. [807] Inaction Not a Waiver of Default
Any failures or delays by any 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 any
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.
E. [808]
Remedies and Rights of Termination
1. [809] Damages
If any party defaults with regard to any of the
provisions of this Agreement, the non-defaultingparty(ies) shall-
serve written notice of such default upon the defaulting party. If
the default'is not cured or commenced to be cured by the defaulting
party within thirty (30) days after service of the notice of
default (or within suchother .period as is set forth herein), the
defaulting party shall be' liable to the other party(ies) for any
damages caused by such default.
2. [810]
Specific Performance
If any party defaults under any of the provisions of this
Agreement, the non-defaulting party(ies) shall serve written notice
of such default upon the defaulting party. Ifthe default is not
cured bythe defaulting party within thirty (30) days of service of
the notice of default, or such other time limit as may beset forth
herein with respect to such default, the non-defaulting party(ies)
at its option may thereafter (but not before) commence an action
for specific performance of terms of this Agreement.
IX. [900]
SPECIAL PROVISIONS
A. [901]
Successors In Interest
The terms, covenants, conditions and restrictions of this
Agreement shall extend to and shall be binding upon and inure to
the benefit of the heirs, executors, administrators, successors and
assigns of the parties.
Except as expressely provided in Section 403 of this
Agreement, this Agreement shall in no way restrict the ability of
the Property Owner to sell, transfer or assign any of its interest
in the Site, including any form of conveyance for financing
purposes, provided such sale, transfer or assignment has no effect
24
on the Use. The Property Owner shall notify the Agency of any and
all such sales, transfers or assignments within thirty (30) days
prior to any sale, transfer or assignment.
B. [902]
Amenaments to this Agreement
The Property Owner, 'the Tenant and the Agency agree to
mutually consider reasonable requests for amendments to this
Agreement which may be made by lenders, or Agency's counsel or
financial consultants, provided said requests are consistent with
this Agreement and wouldnot substantially alter the basic business
terms included herein.
X. [1000] ENTIRE AGREEMENT, ~AIVERS
This Agreement may be signed in counter-parts, and is executed
in four (4) duplicate originals, each of which is deemed to be an
original. This Agreement includes pages 1 through 26 and
Attachments 1. through 10, which constitutes the entire
understanding and agreement of the parties.
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.
All waivers of the provisions of this Agreement must be in
writing by the appropriate authorities of the Agency, the
ParticiPant, and all amendments hereto must be in writing by the
appropriate authorities of the Agency, the Participant.
In any circumstance where, under this Agreement, either party
is required to approve or disapprove any matter, approval shall not
be unreasonably withheld.
XI. [1100] DATE OF THE AGREEMENT BY AGENCY
The effective date of this Agreement shall bethe da~e when it
shall have been signed by the Agency.
IN WITNESS WHEREOF, the Agency, the city, the Property Owner and
the Tenant have signed this Agreement on the respective dates set
forth b~low.
(signatures on Next Page)
25
C~TY OF TUST~N~
BY'
Thomas Saltarelli
Mayor
DATE:
APPROVED AS TO FORM:
BY-
·
Lois Jeffrey
City Attorney
ATTESTED:
Mary Wynn
City Clerk
TUSTIN COHMUNITY REDEVEL~PHENTA~ENCY~
BY: DATE:
Thomas Saltarelli
Chairman
APPROVED AS TO FORM:
BY'
Lois Jeffrey
Agency Counsel~
ATTESTED-
·
Mary Wynn
Secretary
CATELLUS DEVELOPMENT CORPORATION:
BY'
DATE:
ITS. '
MICRO ELECTRONICS, INC.:
BY'
DATE:
ITS -
·
RzIMMER\MICDDA. TXT
26
ATTACHMENT -
SITE MAP '
t~i-zo~
..
IO-Z~t,
ATTACHMENT 2
LEGAL DESCRIPTION
ATTACHMEIqT 2
LEGAL DESCRIPTION
Parcel 1: -
..
.
That por~on of Lot 65 in Block 10 of Irvine's Subdivision. in ~e CiW of Tustin.
County of Orange, State of California, as per map filed in Book 1. Page 88' of
Miscellaneous Maps, in the Office of the County Recorder of said county.
described as follows:
Begi_nning at the intersectiofi of a line parallel with and distant Northwesterly
770.40 feet, measured at right angles, from the Southeasterly line of said Lot
with the-Southwesterly line of. Edinger Avenue (80.00 feet wide-) described as that
certain 4.7904-acre .parcel in deed 'to County of Orange recorded in Book 5406,'
Page 473 of official Records of said Count~, thence South 39° 48: 47" West 10.00
feet along said parallel 'line to a point in a line parallel .with and distant
Southwesterly 10.00 feet, measured, at right-angles, from said Southwesterly line
of Edinger Avenue said point being the Izue- point- of beginning; thence South
50° 10' 50" East (basis of bearings as per record of survey filed in Book 34,
Page 17, Records of said County) along said parallel line 314.40 feet; thence South
05° 11' 02" - East 28.29 feet to a point in a line parallel with and distant
Northwesterly 436.00 feet, measured at right angles from said Southeasterly line
of said Lot 65: thence South 39° 48' 47' West along said parallel line 500.00 feet
to a point in a line .parallel-with and distant Southwesterly' SB0.00 feet measured
at right angles,' from said SouthWesterly line of Edinger Avenue; the. nce' North
50° 10' 50" West along lastsaid parallel line 330.40 feet; thence North 35° 14' 21"
East 50.16 feet to a point in first said parallel line; thence North 39°. 48' 47"'East
along first said parallel line 470.00 feet to the true point of beginning,
Except all oil, gas, and other hydrocarbon and mineral substances lying not-less-
than 100 feet below the surface of said land, provided that grantor, its successors
and assigns, shall not have the right to go upon the surface of said land for the
purpose of extracting said oil, gas, or other hydrocarbon and mineral substances,
nor for any purpose in connection therewi_th, but shall-have the right to extract
and remove said oil, gas, and other hydrocarbon and mineral substances by
means of' slant-drilled wells located on adjacent or nearby land. or by any other
means which shall not require entry upon the surface' of said land, as-reserved by
Santa'Fe Land Improvement Company, in Deeds of Record. '
ATTACHMENT 3
LEASE. BETWEEN
MICRO ELECTRONICS, INC.
dba MICRO CENTER
CATELLUS DEVELOPMENT CORPORATION
FOR 1100 EAST EDINGER AVENUE
.TUSTIN, CA
ATTACHMENT 3
MICKO ~L~C-~I~ONI~ INC.
dba MICRO CENTER
CATELLUS DEVELOPMENT CORP.
FOR 1100 EDINGER AVENUE
TUSTIN, CA
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BASIC LEASE INFORMATION
Landlord:
Landlord's Address For Notice:
Landlord's Address
For P~'ment of Rent:
Tcnant:
Tenant's Address For Notice:
Project:
Building:
Building Address: Street:
Ci~' and State:
Term:
Esumatecl Commencement
Date:
Base Rent:
Lease Years
1-3
4-5
6-10
11-15
SINGLE TENANT INDUSTRIAL LF_ASF O.
Effective Date: ~
(The date set forth
o
.
.
CATELLU$ DEVELOPMENT CORPORATION, a Delaware
corporation
10~ N. PacifiCenter Drive, Suite 200
Anaheim. CA 92S06
Ann: Asset Management.
Tele~mne: (714) 630-8100
Fxx: (714) 237-7416
F'de #53694
Los Angeles. CA 900'4-3694
MICRO EI-EC'I~ONICS. INC.,
a Ddass~re corporation
1555 Lane Avenue
Columbus. OH 43221
~ Richard Mershad. Vice President
Telephone: 614-481-8041
Fax: 614-481-4439.
Pacific Center Tustizc bounded as shown on Exlu~it J
As shown in Exlu'bit A.
1100 Edinger Avenue
Tuslhl. CA
The m parcel on which the Building is located.
15 Lease Years. plus three options of 5 years each
No~zml~ 1~ 1993
Base Rent consists of "Unimproved Rent" and "Improvement Rent."
.,~nnual Unimpa~,ed ..Annual Improvement
Rem Rent
~A~ ,ual Total Rent
$142.560.00 $140.184.00 $282,744.00
S233.640.00 $140,184.00 $373.824.03
$273.240.00 $140.184.00 $413.424_00
S3 i 2.840.00 $140.184.00 S453.024.00
(i)
L. RE. AL_EST,~.GCROCEN~.TUSTN_CA-~LSTUST~$ DOC 8 "6 93 Dr~ 08."27/93 I 1:55 AM
! 6-20 S396.000.00 0 S396.000.00
21-25 $485.100.00 0 $485.000.00
26-30 Greater of $544.500.00 0 Greater of S544.500.00
or bAarket Rem or Market Rent .
P~able In Monthly Installments as Follox~:
Lease Years Unimproved ~ imProvement Rcn! Total Rent
$11.682.00 $23.562.00
$1
1-3 $11.682.00 $31,152.00
$19,470.00
4-5 ~ $11.682.00 $34.452.00
6-10 $22.7'/0.00
$11,652.00 $37.?$2.00
16-20 $33.000.00 ' 0 $33.000.00
21-25 $40.425.00 0 $40.425.00
26-30 Greater of $45.375.00 0 Greater of $45.3'/5.00
or Market Rem or ;Market Rem
Provided that there shall be no Unimprox~xi Rent ia ~espect of the month in which the C°mmen~-me-hr Date occurs, such
that thc Annual Unimproved Rent for the first Lease Year will actually be 11/12th the amount set forth above, and. thc Total
Rent for the first Lease Year will be adjusted acamliagb:
' it Commencement Date: One calmdar month after the Commencement Date dcf,:n'bed in Section 2.1.2.
Security. Deposit:
Broker.
Shall n~fzz ~ each three hundred sixty-five 065) dax- period during the Term
conummci~ on the Commencement Date and on eacl~ annixersaty thereof.
Parking Spaces:
Constmcuon Allo~x~nce:
permiued Us~:
Per atlackul Site Plan
SI. 120.000.00
'Coodumag a store for scllin~ and servicing of computers, computer softxxarc.
comlml~ Imblications, micro-electronics based products, home and office
' compum~ fmmiture and supplies, and accessories-relazed thereto, togelher with
trait~Jng amd education programs related thereto.-including but not limited to
the sale at retail or wholesale or by catalogue of computers, software..
accessories, books, pa~r. ~,~.deo display ,.erminals. disks and diskextes, disk
drix~s. ~ds, calafl~wrs, peripherals, compact ds_ks and disk piayere.. CD
ROM ac~ssories, modenm home and office equipa-.em and supplies, and
related items.' and the repair and ~r,-icmg of such items, and no other usx
shall be ianmitted, except as provided by Section 1:5.1_
(ii)
· g:26.q3 Draft 0~'2't-93 I 15'
L 'REAL EST~%flCROCE.~'~TUSTN_CA'-LSTUSTN5 DOC. -
EKH]]3ITS
A Building/Lot - Premises
B - Work Letter
C - Commencement Date Memorandum
D - Insurance Certificate
E - Prohibiled Uses
F - Rules and Regulations
G - Site Plan
H - Non-disuubance Agreement
I - Tenant's Signs
J - Project Boundaries
The Basic Lease Information set forth above and the Exhibits attached hereto arc incorpgrated into and made a
part of the follo~ing Lease. Each reference in this-Lease to any of thc Basic Lease Information shall mean the respective
information aboxm and shall be construed to incorporate aH of the terms provided under the particular Lease pam~ph
pertaining to such information. In the event of any conflict bet~en the B~ Information and the provisions of the
Lease. the latter shall control.
LANDLORD ( ) AND TENANT ( i~ ) AGREE.
(iii)
L:'.REA.L_EST'~'~0CROCE~',TUS'I'~_CA~.LSTUS'rNsDOC 8,'26/93 Draft 0g~7~3 I 1:55
Table of Contents.
1
1.1 Prcmiscs ......................................................... : ........................................................ '-': ......................................... 1
1.2 Rcscrvcd Rights .................................................................................................................................................... 1
1.3. Site Plan ................................................................ ' ............................................................................................. 1
1.4 Tcnant's Improvements ............................................................................................................... ' ...................... 1
1.5 Construction Allowancc .................................................................................................................... ' ................. 2
1.6 Landlord's Coope. ta~on .................................................................................................................................
.................... :.2
2. TERM .................................................................................... ' .... : ....................................................... . .................. 2
2.1 Co_mmencemcnl Date .................................. , .................................................................................. . ....... 2
2 2 Possession ..............................................................................................................................................
213 Renes~a Options ............................................................................................................................................. :-
3. RENT .........................................................
3.1 Rent .................................................................................................................................................. 4
3.2 Late Charge and Interest .'.:.: ............................................................................................................................
·
4. UTILITIES ................................................................................................................................................................
:5.2 Personal Property Taxes ........................................ , .... , ...... ,-'---: .... ~ ..........................................................
6. TRIPLENET LEASE ............................................................ ' ...... ~": ........................................... : .................... 6.
7. INSURANCE ........................................................................................................................................... ' ...... 6
?.1 Landlord ........................................................................................................................................................ .,?
?.2 Tenant ................................................................. : ............................................................................................... ?
? 3 General ...... ~: ........................................................................................
'/.4 Indcmniw .........................................................................
?.5 Excmpti;n of Landlord from Liabili~' ....................................... : ................................................................. ;"-
· 9 .
g. REPAIRS AND MAINTENANCE ........................................................................................................................... 9
g.l Landlord ................................................................................................................................................................ 9
S.2 Tcnanc .......................... : ................................................ -' .....................................................................................
10
9. AL'IERATIONS .................... . ................................................................................................................................... 10
9.1 Trade Fixtures; Alterations ................................................................................................................................. I0.
........................................................................................................ ::::::::::::::::::::::::::::::::::::::
9.3 Liens .............................................................................................................................
10. USE ............................................................................................................................................................................ 10
us .Operation ........................................................................................................................................ 10
10.2 Continu,o, 11
10.3 Exclusive Usc .....................................................................................................................................................
· ' 11
11. ENVIRONMENTAL MATTERS ........................................................... :'-- ................................................................. 12
11.3 Indemnification By Tenant, ............................................................................................................................... 13
11.5 Interference ........................................................................................................................................................
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11.6 Tenant's Right to Remediate ............................................................................................................................... 13
11.7 No Consequential Damages ................................................................................................................................ 13
12. DAMAGE AND DESTRUCTION
12.1 Castmlty ........................................................................................................................................................... 13
12.2 Tenant's Fault .... : ............................................................................................................................................... 14
12.3 Unin_~'ured Casual.ty ....................................................... : ................................................................ ...... ............... 14
12.4 Waivex ........................................ ~ ........................................................................ '..'. .......................................... 14'
13.
13.2 Panini Condemnation. ...................................................................................................................................... 15
'13_3 Award ........................................................... ·
................................................ , ................................................ 15
13.4 Tempo~ Condemnation ...................................................= ............................................................................ 15
DEFAULT ................................................................................................................................................ 15
14.1 Events of Defaults ............................................................. - "': ....... 15
14_2 Remedies_ .............................................................
- * - -----*----*---------------------*---*-.....*.........--...... ...... .................... 16
14_3 Cumulativ~ ....... - ................................................. ;;- - '!7
oo oooo-o---o--o~o0o~oo.ooo..ooooo.ooooo .... oooooooo..o.ooo..o ..... ooo..ooo.o ...........
]4.4 Arbitration of Disputc~ ........................................ : .......................................................................................... 17
15.
16.
ASSIGNMENT AND SUB~G.
15.l. Consent ~ed .......................................................................................................................................... 18
15.2. Notice Io Landlord; Election w Terminm¢ ................... ~ ................................................................................ 19
15_3. No Release ...................................................................................................................................................... 19
15.4. Perm/ned Transactions ................ ~ ............................................. .~ ......... ~ .............. . ...................................... 19
15.5. Resuicted Transactions ' 20.
ESTOP~ ATTORNMENT AND SUBORDINATION .............................................................................. 20
16.1 Eswppel ................................................. ; ............................................ i .......................................................... 20
16.2 Subordi~tmn ....................................... . 21
16_3 ^nornmcnt ..........................................
16.4 Maxcnal Change ............. ; ....................................... .
17.
DEFAULT BY LANDLORD ................................................................................................................................... 21
17.1 Notice to Landlord ' 21
172 Nolice to Mortgagees ..... : ................................. :. ............................................................................................. 21
17_3 No Waiver ........................................................... ; ........................................................................................... :.. 21
18.-
18.1 Gene. mi
18.3 Waiver .............................................................................................................................................................. 23
18.4 Ftmmcial Statcment~
18.5 Limitation of Liability .................................................................................................. , ..................................... 23
18.6 Notic~ .....................................................
18.7 Brokerage Commission ...................................................................................................................................... 24
18.8 Authorization ...............................................
.o g .......... : ................. :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ...........
........................................ 24
18.]0 Joint and Scvcral
18.11 Co~mants and Conditions ..............................
.................................................................................................. ..1
18.12 Addenda ...............................
............................................................................................................................
18.13 Unavoidable Delays .......................................................................................................................................... 2-1
(v)
L REAL_EST~,~,OCROCEN'~TUSTN_CA".LSTUSTN5 DOC 8'26t93 Draft 08:27t93 I I '55 AM
18.14 Financing of Trade Fixtures ............................................................................................................................ 25
18.15 Waiver of Distraint .............................................................................. ' ............................................................. 25
18.16 Reasonable Consent ......................................................................................................................................... 25
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L:kR.EAL_ES'IX.~tlCROCE.~IVi"OSTN_CA'd--STLI$'I=~5'I)C)C g~6.93 Dr'~fl 0&"27.'~ I ! :55 ~
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1. PREIvflSES.
1.'1 Premises. Landlord hereby leases to Tenant the Building and the Lot upon which thc same is situated fhereinaftcr
collectively referred to as the "Pr~nises") as shown on Exhibit A aUached hereto. .
1.2 Reser~ Rights. Landlord reserves the right to enter the Premises upon reasonable notice to Tenant (except in case
of an emergent.,) and/or to undertake the following: inspect the Premises and/or the performance by. Ter~m of the terms
and conditions hereof; grant easements on the Project, dedicate for public use portions thereof~ subject to Tenants consent.
which shall not be unreasonably withheld or delayed provided that the proposed dedication does not matefialh, diminish .
Tenants parking or materially ~mpair the access to or visibility of the Premises or unreamnably interfere ~ Tenant's
enjoyment of the Premises; and record covenants, conditions and restrictions ("CCS~'s') affecting the Project and/or
ametldments to exi~Jng C~'$ which do not ullgea.~lablv interfere with Tenalit'$ ~ of the Premise~ materially immir
the access to or visibility of the Premises, or restrict Te, nanfi signs then or thereafter existing, and which do not ~ ~ny
additional expense on Tenant; change the name of the Project; and, during the last nine (9) months of the Term. show the
Premises to prospective tenants. Without limiting the materiality of other diminutions of parking, any change that results in
a loss of any parking spaces in the row closest to Del Arno Street, or which veduc~ the total number of parking spaces
below the amount required by la~; shall be deemed' material (provided, however that a reduction of the number of parking
spaces below the amount required by law shall not be deemed material i~ prior to the time the reduction becomes effective.
Landlord obtains for Tenant comparable subgtitute parking contiguous to the Premises and reasonably ____~ox'ptable to
Tenan0. Landlord will use commercially reasonable efforts in good faith not to interfere unreasonably w~th Tenant's use
and enj .oyment of the Premises in connection with the exercise of Landlords rights. Landlord will use co~-
reasonable efforts in good faith not to materiall.v impair the v!si. 'bility of the Premises. '
1.3. Site Plan. Landlord agrees to cause to be performed certain improvengnts to the Premises. as required bx- the City of
Tmtin (the 'City') and designated as 'Landlord's Work' on the site plan (the 'Site Plan') attached hereto a~ Exlu'bit G.
Tenant agrees to perform the improvements (hereafter, 'Tenant's Site Work') designated as "Tenant's Work' on the Site
Plan. In addition. '%andlord's Work' shall include the work recommended in paragraphs I.E and II.A of the section
captioned 'CONCLUSIONS AND RECOMMENDATIONS' in the report prepared for Tenant by Culp & Tanner. dated
July 8, 1993, concerning seismic smmdness of the Prenfises.. Tenant will solicit bids for the performance of Landlord's
Work, and will cause Tenant's consuucfion manager to provide general conditions work and consmiction rn~mgement for
Landlord's Work. Landlord will have the right to solicit bids for.the performance of landlord's Work. to approve the
bidders solicited by Tenant and the bids r_,x'e_~ived, and to select the-contractors to perform Landlord's Work. Landlord will
pay the cost of Landlord's Work. and Tenant will have no:responsibility therefor. Landlord will'be bffied directly bv the
contractors pe, rf~g Landlord's Work. Landlord will also pay to Tenant's construction m~ger an amount equai to'l(PA
of the cost of Landlord's Work. Which 10°/O will-be .payment as. and 'for general conditions wx~rk and consmgfion
· management services. All Landlord's Work and Tenant's Site Work under this Section 1.3 shall be performed in good and
m~rkmanlike manner, and in such manner as not to unreasonably interfere with or delay the work of the'other pan).- or
Tenant's other improvements to the Pmmis~ The ponies shall w~rk in good faith to coordinate the Landlord's Work and
Tenant's Site Work accordingly. The parties acknowledge that the Site Plan is subject to further revision bx- the City.
Tenant understands that Landlord does not control the condiUons which the .City may impose as a conditiot{ to futu}e
development of the Project. Landlord will. not request-the City to revise the Site P~xn in any manner that x~x~uid widen
street adjacent to the Premises or flint.would reduce the parking available on the Premises or change in am, m~nner th~
access to the Premises, including but not-limited to curb cuts, median strips, or drh,'eways. '
1.4 Tenant's Improvements. Tenant shah perform all work and improvements, other than Landlord's Work. which are
-necessary or desirable to prepare the Premises for use by Tenant. All such work. shall be peffo~ in good and
workmanlike manner, in conformance x~th all applicable requirements of law. and purmant to plans and specifications
approved by Landlord. Landlord shall, not unreasonably withhold, delay or condition its consent. Tenant s-hall oigain all
· necessa~., governmental permits for the performance, of'its work under ~ Section 1.4, at Tenant's sole cost_ Tenant x~lU
commence its work promptly upon issuance of the permits, and will prosecute the work diligently.to completion.
1.:5 Construction Allowance. As an inducement to Tenant to enter into this [,ease and to perform the work described in
Section 1.4. Landlord agrees to pay Tenant the Construction Allowance. which shall be payable in mstallmems
proportionate to the percentage of completion of Tenant's i.m. provements under Section 1.4. The first 90% of the
Construction Allox~mce shall be paid in installments, each of which shall be due within 20 days after Landlord's receipt of
Tenant's }.nvoice.. a_c~_..m ,i~. ~ed bx-(a) a ~_cate of Tenant's architect, certif3ing the percet~tage of completion together
ruth (b) uen x~mvers (xvmcn, at lenant s opuon, may be in conditional form) from all contractors, subcomractors, and
suppliers. The final 10°,4 ofthe Construction Allomm~e shall be due and pox,able within 20 da.vs after. Landlord receix~
a statutory. Notice of Completion recorded in accordance with Cix~l Code Section 3093, (y) final complete lien x~ivers
(which. at Tenant's option, may be in conditional form} from all contractors, subcontractors and suppliers, and/or, at
Tenant's option, one or more sur'ety bonds reasonably acceptable to Landlord and'its Mortgagee (as defined in Section 17.2).
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L:'"REAL_ES'r',,g.flCROCE.X.",TUSTN_CA~LSTUSTN5 DOC 8Q6~93 Draft. 08,'27,931155 AM
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~£ an.s; as lo any conu~actor, sUbcontractor or supplier for which no lien waiver has been furmshed, and (z) a certificate of
final completion from Tenant's architect. An.v portion of the Constru~on Allowance not paid x~thin ten (10) da.x~ after
receipt by Landlord or oral or written notice that the same is overdue Shall be subject to a late charge of five percent (5%)
of the delinquent amount, which is agreed to repre~.nt a reasonable estimate of the Delinquency Costs (as defined in
Section 3.2) incurred ~' Tenant. In addition, all such deliaqu~t amoums, aRer amico as set forth abo~ shall bear interest
from the date such amount was due until paid in full at the Applicable Imerest Rate (as defined in Section 3.2).
1.6. Lancllord°s Cooperation. Landlord shall reaso_na_bly cooperate with TenanL at Tenant's expense, in.obtaining the
issuan~ of any building permits, approx-als, licenses or other satisfaction of other gove. mmen~ requirements necessary, for
the performance of any. consmg:fiom alteration, maintenance or other work which Tenant is required or permitted to
perform under this Lease. or for the occupancy of the Premises by Tenant for the uses permitted by this Lease. The
reasonable cooperation of Landlord shall include, but shall not be limited to. the exeotdon of such applications or other
documents as Tenant shall reasonably request, the furnishing of any_ pl~n~, drawings, specifications, records, copies or other
informa~on in the possession or control of Landlord pertaining to the Premises as Tenant shall request, ap~ at
i~_ rin~ or meetings of gove~mental or quasi-gov~a~nen~ bodies or agencies, and the introduction of Tenant's agents or
employees upon request to such local consultants, ~ or agencies, as may .be. acquainted with Landlord. The foregoing
pmvi~ns of this _S~_jon 1.6 shall apply to any provision of this Lense reqmnng Lnmllord to cooperate with Tenant in
obtaining any of the foregoing. In addition, Landlord at its own expeme. (a) shall post security satisfactory to the City. for
the ~,~fimnted cost of any fight-of-way improvements required by.' the City., and (b) shah make such irrevocable offers to
dedicate right-of-way on Edinger Street and Del Arno Street as the City n~.' require
2.1 Commencement Date.
2.1.1 The term of this Lease shall commence on'the date hem~. The period prior to the Commencement Date
(defined below) is sometimes ref~ to as. the "Prell.- Term'. The period be~i~'nning on thc Commencement Date and
ending on the expiration.or sooner termination of this I, case is referred m as the "Term'. During thc Prelimina~ Term, aH
of thc provisions of this Lease shall apply, including the' obligation to pay utility charges and premiums for Tcnnnfs
insurance, except for Tenant's obligation to pay Rent and other charges, and Tenant's obligation to conduct its business in
· ~e Premises.
2.1.2 The Term =~,11 commence ("Commencemem Date") on the first day of the first full month following the date
oh'which the Premises are Substantially Complete (as hctcimRcr defin~ except that if Substantial CompleXion oontrs on
thc first day of a month, that date shall be the. Commencement Date. and the Lease shall continue in full force and effect for
the period ~f lime specified as the Term or until this Lease is terminated as otherwise provided herein. The.Premises shall
be deemed to be "Su~'Complete" on the date on which all of Tenant's improvements under Section 1.4 are
complef~d.-e, xcept for minor punch list items which do not (and the cm-rection of which will not)-interfere with Tenant's
intended use of the Premises. and the Premises are rea~' for the condnct of Tenant's business, and: (a) Tenant files or
causes to be filed with the' City. (if required) an architect*s notice of substantial.completion, or similar written notice that thc
Premises are Substantially Complete. or Co) Tenant commences business operations in the Premises. or (c) a certLficate of
occupancy. (temporary. or final) is issued for the Premises, or the City issues such. interim approvals as are necessa~..--to
permit Tenant to commence the use and operation ofthe Premises contemplated by. this Lease. Tenant shall upon demand
at~ o~entrence of the Commencement Date,, execum and deliver to Lamtlord a-Commencement Date .Memorandum in the
form attached.hereto as Exhibit C actmowledging (D the Commencem~t Date. (ii) the final square f°°tage of the Premises.
and ¢fii) Tenant's' acceptance, of the Premises:. ff the Premises axe not S~tially Complete on the Estimated
Cogent Date. this Lease shall teen-in in eft'ecL Lat~onl shall not be subject to any liabili.ty, and the
Co--em'Date shali be dela~xl until the date the Promises are gabstantially Complete. Tenant has determined that
the Premises 'are accep~ble for Tenant's us~ and Tenant acknowledges that. excep,~ as set forth in this Lease, neither
Landlord nor an)' broker or agent has .made an), ~tions or wananties in connection with tile physical condition.of
tl~ Premises or their fitness for Tenant's use upon which Tenant has relied directly or indirectly tbr any purpose.
2.2 Possession. Landlord hereby, delivers exclusive possession of the Premises to Tenant.
2.3 Renexxal Options.
2.3.1 Option. Landlord her~.' grants to Tenant the right, option and privilege of extending the Term for three (3)
su___rces~-ive renex~'al terms of five (5) years each (respectix~ the-"First Renewal Term', 'Second Renewal Term'-and 'Third
Renex%'al Term"). each such Renewal Term to be exercised cort,_e~x-~__qive~.: Subject to Sections 2.3.2 and 2.3.3 below: Tenant
may exercise said righL option and privilege at any time provided this Lease is in full force and effect and further prox'~ded
- ~ha~ (a) at the time Tenant gives its notice under .~ction 2.3.2. and at the commencement of the'Renewal Term. Landlord
L::REAL EST'~iICROCEN'X'I'-CST.. '_CA',L-STUSTI~5-DOC g'26~93 Eh-aft ORr27.9311:55 ,-%\4
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has not resorted to it~ possessor' remedies as a result of Tenant's Event of Default hcrexmder. Co) during the 12 months
immediately preccd/ng Tenant's giving of notice under Secuon 2.3.2. Landlord has not issued to Tenant more than two
'notices to pas' or quit' under Section 1161 of the California Civil Procedure Code for failure lo cure an Event of Default
resulting from failure to pax, Rent, (c) during the 12 months immediately p _rec~__~-ding the commencegnent of the Rel~ewal
Term. Landlord has not issued to Tenant more than two 'notices to pay or'quit' under Section 1161 of thc California Civil
Procedure Code for failure to cure an Event of Default resulting from failure to pa).- Rent, and (d) Landlord has not
exercised its right to terminate the option as the result of an Outside Transfer (as defined in and subject to the terms of
Section 15.5). -.
2.3.2 Notice. In the event Tenant desires to renew thc term of this Lcase, Tenant shall so notify Landlord in '
writing of the exercise of its option, at least six (6) months'prior to the expiration date as then constituted, but not earlier
than two (2) years prior thereto. For pmpases of Section 2.3.2 and 2.3.3, a notice by Tenant shall be deemed effective as of
the date sent via overnight courier.
2.3.3 Failure to Renew. Subject m the follOwing, Tenant shah lose its right to extend the Term, or extended Temt,
if it does not exercise its option in a timely manner, time of notice being of the essence. N~ the foregoing
however, Tenant's right to exercise its options shaH cominue until three (3) business da~ after Landlord shaH have given
Tenant notice of its election to terminate Tenant's option because of Tenant's failure to ~ucise same in a timely manner.
Should Tenant fail to exercise its option in a timely n~nper and if Landlord fails to give Tenant a three (3) business days
notice of its election to terminate that oMion as a result there~ the Term shall be autonmically extended from month to
month, at the Base Rent that would be in effect had the option fo~ the Renewal Term been exercised, but othetwi~ upon all
thc terms and conditions then in effect, subject to Landlo~s right to give Tenant a three O) ~ days notice of
termination and Tenant's right to extend the Term for the remainder of the then ~ Term, within said three (3)
business days. Except with ~ to Tenant's electim to extend the Term for the First ~ Term, Tenant max, not
elect to extend the term of Lease for successive Renewal Terms unless it had.previ~ elected to renew the Term-f~r the
immediately preceding Ren~ Term. For example. Tenant may not elect to extend the Term for the Second RencwM
Term unless it had previously elected to caend the Term for-thc F'ust Renewal Term. Landlord's failure to give three O)
business days notice under tills Section 2,3.3 shall not b· deemed an exercise of Tenant~ option, nor shall it be deemed an
extension of thc Term other than from month to month as set forth in this Section 2.3.3.
2.3.4 Lease Atmlicable. Each Renc'xval Term shah be subjea to aH of th~ terms, covertures and conditions of this
Lease except that during the First and Second Renewal Terms the Base Rem shaH be as set forth in the Basic Lease
Information. and during the Third Renexcal Term. Base Rent shall be the greater of the amount set forth in-the Basic Lense
Information or the Market Rent det~ under Section 2.3.5.
2.3.5 Market Rent.
.
(a) 'Market Rent" means the Base Rem thc_t_ a willing non-equity tenant tumid pay., and a willing landlord
m)uld accept from a .non-equity tenant, for a lease ofshnilar premises in Tnstin~ California for retail use for a term equal to
the Third Renewal Term. in an "as is" condition similar to the then-existing condition of the Premises. giving appropriate
consideration to monthly rental rates per rentable square foot. the presence or absence ct' rem escalation clauses such as
operating expense and tax pass-tlu'ough~ size ami location of premises being leased, and other gener~y applicable terms of
tcmnc3' for a s~milar building or buil~ The Market Rent shall I~e determined by the nmmal written agreement of
Landlord and Tenant. In the event that Landlord and Tenant =e. hnH not have reached nnsmal agreement as to the Market
Rent within 30 da)~ after the date (the 'Exercise Date") Tenant gives notice of its exescise of the option for the Third
Renewal Term. then Landlord and Tenant each shaH select a Real Estate Appraiser, as hereinafter defined, not later than 60
days after the Exercise Date. ff either party, shah fail to so appoint a Real Estate Apprn'_,~__. the one Real Estate Appraiser
so appointed shall proceed to determine the 'Market Reac In the event that the Real-Esta~.~ selected by v~dlord
attcl Tenant agree as to *.he Market Rent. said det-.nmnntion shah be binding on Landlord ami Temm. In the event that the
selected Real Estate Appraiser's cannot agree as to the .Market Rent on or before the 90th day al~er the Exercise Date. then
such Real Estate Appraisers shah jointly select a third Real Estate App~ (provided that i/they cannot agree on the third
Real Estate Appraiser on or before the 105th day after the Exercise Date. then said third Real F.s~te Appraiser shall be
selected in accordance with the niles p,-escn'be~l by the American Arbitration Association located in Orange County,
California. or any successor thereto). The third Real Esuac Appraiser. ho~zr seleaed, shah be a person who has not
previously aaed in any capacit3' for either part).'. Within 20 days after the third Real ~ Appraiser is selected~ a majority
of thc Real Estate Appraisers shall set the Market Rent. If a majori .ty of the Real ~ Appraisers is unable to set the
Market Rent within tlie 20 da,,. period, the mx) closest appraisals shall be added together and their total divided bv twx). and
the resulting quotient shall b~ the Market Rent. The-costs and expenses of the Real Estate Appraiser selected b~ Landlord-
and by Tenant shall be borne by the respectix~ part~ the costs and ~ of the third Real Estate Appraiser shall be
share~i equally by Landlord and ~'enant.
.
L.',REaM-_EST~,flCROCEN',TL'5 .--. '_CA'LSTU$-I~5 DOC t -'~'93 Dr~ 08,2__79311 55 AM
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(b) The term "Real Estate Appraiser" shall mean an impartial person who is a Member of the Appraisal
Institute. and having not less than ten (10) years' ex-perience as an appraiser of leasehold estates relating to first class retail
and commercial space in Orange Count).-. California. The final determination of the Real Estate Appraiser(s} shall be in
xx~iting and shall be binding and conclusive upon the panics, each of which shall ~rece~ive counterpart copies thereof. In
rendering such decision the Real Estate Appraisers) shall not add to, subtract from or otherwise modi~.' the provistons of
this Lease. lt~ by the conunenccment of thc Third Renc~ Period. thc Market Rent pursuant to this Section shall not haw
been determined by thc Real E.vlatc Appraiser(s), Tenant slmll pay the Base Rem set forth in thc Basic Lea~e Information
until such determination is made (subject to adjustment upon determination of such Baser .Ren! by appraisal' by the Real
Estate Appraiser(s) as hereinabove provided or by agreement of Landlord and T_e~n0. Upon such determination, Tenant '
shall promptly pay to Landlord any.underpa.vment of the Base Rent.
2.3.6 No New Lease. The terms "renewal' and 'extension" are used interchangeably herein, and
it is not the intern of the parties that any Rene~ Term provided for herein must be evidenced by an amendment hereto, or
a reness~! lease, or an.v separate instrmnent, other than Tenant's written noti~ to Landlord. nor that the ovmership of .any
leasehold improvements pass to Landlord prior to expiration of all exercised Renewal Terms.
3'.1 Rent.
3.1.1 Base Rent. Unimproved Rem and payments in respect of Real Property. Taxes and insurance shall be due and
payable to Landlord on or before the Rent Conunencement Date. Tenant shall pay. to Landlord. at Landlord's Address for
Pa.x~ncnt of Rent designated in thc Basic Lease Information. or at such other address as Landlord ma.v from time to time
designate in m'iting to Tenant for the paz,.anent of Rent. the Base Rent. without notice, demanck offset or deduction, in
advance, on the first day of each calendar month. Upon the'execution of this Lease, Tenant shall pay to Landlord the first
month's Base Rent. to be applied to the month in ~ttich the Rent Commencement Date ocx:urs. The first in.s'mHment of
hnpro~nent Rent shrill be due on the Commencement Date. .Notwithstanding any other provision of this Lease, no
Unimproved Rent or other charges (except Improvement Rent) shaH be payable to Landlord in respect of the month in
which the Commencement Date occurs, ff Substnn._.tial Completion occurs (or if the Term ends) on a date other than the
first (or last) day of a month,. Unimproved Rent shah be prorated on a per diem basis with respect to the portion of the
onth bclween the date of Substantial Completion and the Cogent Dale and/or the portion of the last month ~thin
.ac Term. AH sums other .than Base Rent which Tenant is obligated to pay under this Lease shaH be deemed to be
additional rent due hereunder, whether or not such ~ms_ are designated "additional rent.' The term 'Rent" 'means the Base
Rent and all additional rent payable hereunder. ' ~
3.1.2 Allowance Payment Date. Notwi~ng ans- other provision of this Lease. the portiOn of'the Base Rent
designated as 'Improvement Rent' shall become due and payable as of the Commencement Date. ff the date of Substantial
Completion is other than the first day'of the month, no Impros~:ment Rent shall be payable ruth respect to the period
bens~ the date of Substantial Completion and the Commencement Date ffthe entire Construction Allo~ncedue Tenant
pursuant to Section 1.5 (with late charges, if any. and interest, if any. at the Applicable Interest Rate) has not been prod to
Tenant within 60 da.x~ of the Rent Commencement Date.. then: - -
(a) from the Rent Commencement Date through thc date nil ~ amounts-are paid (the #Alloxx~nce Pa.xanent
Date"), Base Rem shall consist of the Unimprox~d Rem only.
(b) within 10 da.vs of thc Allowance ~.~t Date and Tenant's receiM of Landlord's inx~ice therefor. Tenant
shall 1~.' thc then-current in.,,'tallment of Improvement Rent (pro rated if the Allowance Pa.vment Date is not the first day of'
a calendar month), together s~th any installments of Improvement Rent that would have accrued had the Allo%%~nce
Pa~.~ncm Date occurred on or before the 60th day after the Rent Conunencement Dat~ and
(c) thereafter, the Base Rent shall be as set forth in thc Basic Lease hfl'ormation-
3.2 Late Charge and Interest. Thc late pa.xanent of any Rent x+411 cause Landlord to incur' additional costs, including
administraUon and collection costs and processing nnd accounting expenses and increased debt sen'ice ("Delinquency
Costs"). If Landlord .h,3s not received any installment of Rent within ten (10) ~ ntter the receipt by Tenant of oral or
written notice that such amount is overdue. Tenant shah pay a late charge of f~'e percent (5%) of the delinquent amount.
which is agreed to represent a reasonable estimate of the Delinquency. Costs incurred by Landlord.. In addition, all such
delinquent amounts, after notice as set forth above, and all nmounts payable by Landlord to Tenant x~4fich remain unpaid for
ten (10) days after Landlord's receipt of oral or %%aitten notice thatthe same are o~-~rdue, shall bear interest from the date
such amount xxas duc until paid in full at a rate per annum ("Applicable Interest Rate") equal to the lesser of (a) the
~a.ximum interest rate permitted by law or (b) two percent (2%) above the rate publicly announced bx' Bank of America.
L .REAL_i:ST-XOCROCEN.TUSTN_CA~J--STL'STN5 DOC 8.'26~93 Dr;fit 08-'2_7.'931 i :SS A.\t
N.A. (or if Bank of America. N.A. ceases to exist, thc largest bank th~n headquartered in thc Sta~c of California) ('Bank")
as'its "Reference Rate." ff the use of the announced Reference Rate is discontinued by, thc Bank, then the term Reference
Rate shall mean the announced rate charged by the Bank which is. from time to time., substituted for the Rcf~ Rate.
Landlord and Tenant recognize that thc damage which Landlord shall suffer as a result of Tcnam. 's failure to pay such
:74 mounts, or which Tenant shall suffer as a result of Landlord's failUre to pa)' amounts duc Tenant hereunder, i~ difficult to
~?~. ' ascertain and said latc chargc and interest arc thc best estimate of thc damage which Landlord shall sufl'cr in thc event of
,'/6 '....late payment. If a late charge becomes payable for any three (3) installments of Rent within any twelve (12) inonth period.
rr~ '-~. then the Rent shah automatically become duc nnd payable quarterly in advance.
·
~78 - -
,'~ 4. UTILITIES. At all '.times during Tenant's possession of the Premises and th~cr during the Term,. Tenant shah
,so ' make all arrangements for-and shall pay all charges for heat. w~ter, g_n~ electricity, telephone and any other utilities used
m · on or provided to the Premis~ including, without limitation, paving any.deposits and "hook up ~" Landlord shall .- --
~g~'-; -.- not be liable to Tenant for interruption in or curtailment of any utility sennce, nor shall any such ~on or curtnilment
,sz "constitute conStrUctive eviction or grounds for rental abatement. Landlord warrants and rcprescuts that gas. water, storm
,s4 · '. and sanitary scxver, and electricity are stubbed to the Building. Landlord makes no warranty or representation as to whether
,ts . the quanti .ty of such utility sexvicc now stubbed to the Premises is adeq0ate for Tenant's needs. · ... .
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5. TAXES. - - · -
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5.1 Real Property Tnxes. Landlord shall pa)'_to thc pm.per taxing authorities as thc same become due all Real Propers.'.
Taxes applicable to thc Premises. subject to reimbursement.Dy Tenant as provided below. Thc term 'R~tl Property Taxes'
shah be the sum of the following:' all real property, taxes, possessory-interest taxes, business or license taxes o~ fees. service '
payments in lieu of such taxes or fees, annual or periodic license or,~ fees, excises, transit and trnffic charges, housing
fund assessments, open space charges, childcare fees. school sc~ ~-king fees or any other assessments, levies, fees.
exactions or charges, general and special ordinm3' and extraordinary, unforeseen as well as forese~ (including fees
"in-lieu". of any such tax or assessment) which are assessed, levied, charged, conferred or imposed by any public authori~'
upon the Pretenses (or any. real--pmpe~, com. p,.rising.an.y pomon ther~f} or~ its operafion~ together with all taxes.
assessments or other fees imposed by any puouc aumonty upon or measurea by any Rent or other charges payable
hereunder, including any gross _rece_.~ipts tax or excise tax levied by. any governmental authority with respec~ to receipt of
rental income and imposed on owners of real propen3' generally-as a class (as opposed to income from all somas or from
other sources), or upo~ with respect to or by reason of the.dcv_elop .ment.. possessi0.n, 1 ..e~-ing,.op?'on,
tenance~ alteration, repair, use or oa:upan~ by Tenant ot mc t'renuses or any poruon mercot, or aoeumcnta~ uan.~cr tax
upon this uan~ction or any document to which Tenant is a party creating or transferring an interest in the Pre~
together with any tax imposed in substitution, partially or totally, of any tax previously includ~ within the aforesaid
definition or any additional tax thc nature of which was previously included within thc aforesaid definition, together with
the costs and expenses (including attorn .e~ and expert witness fees and costs) of challenging any ofthc foregoing or seeking
thc reduction in or abatement, redemption or return of any of thc foregoing, but only to thc extent of any such reduction,
abatement, redemption or return. Nothing-contained in this Lease shall require Tenant to pay any f:ranchisc, corporate,,
estate or inheritance tax of Landlord. or any. income, profits or revenue tax or charge upon thc income of Landlord. nor any
amount excluded by Section 5.1.3. 1t' any. Real Property Tax is pa.x~blc at the option of the taxpaye, r in instnllmcnts, Real
Property Taxes for'each calendar year shah be deemed to include only thc installments which become due in such calendar
year. The Real Property Taxes fo~ any calendar year shall mcan such amounts as shall be finally dc~ermincd after deducting
abatements, refunds, routes or credits, if any (less the reasonable cost and expense of obtaining thc same), to be payable for
such period.
5.1.1 Reimbursement By Tenant. -Landlord shall timely and fully pay all Rea] Property. Taxes levied a?i~-t thc
Premises. Tenan~ shall pay to Landlord ar. amount equa] to the Rca] Property. Taxes then du-, within fifte,-.n (15~ d~ after
delivery to Tenant by Landlord of an invoice for the same. Landlord may. at Landlord's option, deliver statements from
diffcren!.taxing authorities at cliffc,-~n! time.x or deliver all such s',alcmcnts at one.time. In addition. Landlord may elect to
col]ecl suc~, Rea] Property Taxes from Tenznt in adwance, on a monti0y or quarterly basis, based upon the actual tax
statement issued by thc applicable govenunent authority, but Landlord may not collect Real Property Taxes in ao'x~nce
based upon an estimate of such Rcai Property Taxes.
5.1.2 Partial~ Yea~. Real Property. Taxes for partial tax fiscal years, if any, falling within thc Term. shall be
prOrated so O~a! Tenant shall not be responsible for any portion thereof in respe~ of any period before thc Rent
Commencement Date or after thc end of thc Tenn. Tenant's obligations for Rca] Propert.y Taxes for the last full or partial
year of the Term shall survive the expiration or earlier termmation of this Lease.
5.1.3 Limitation on As~_~_~mcnts and Development Fees. Tenant shah not be responsible for any Transportation
S.vstem Impact Fcc. Transportation Comdor Fcc. School Impact Fee. or other similar development fcc based on increased
.
L-:,RF=.AL_EST~OCROCE%'xTI3ST~_CA'~LSTI3ST~5 DOC g."26,'93 Draft 05/'27~93! i :55 A.\~
floor space of the Building except to the extent r~ulting from aaual'increases in thc Building's floor space beyond 45.600
square feet. If any such fees arc levied on the Project. Tenant will not be responsible for any share beyond' thc amount
generated by the increase in the Building's floor space over and above 45,600 square feet. Without limiting thc foregoing,
Tenant will not be responsible for.the cost of upgrading thc existing traffic signal at Del Arno and Edinger as pan of the
Project or any other similar charges, except to. thc extent of increases in the Buiiding's floor space. Tenant is performing its
own site work to the Premises. and any new or o~her costs, fees, development charges, or assessments imposed on the
Premises in connection with the development of ~ Project (other than ~rk by Tenant to the Pr~mises) shall be the sole
responsibility of Landiord. .
·
5.1.4. Right to Contesa Ta.x~. Landlord agrees to noth% Tenant of any increase in Real Property Taxes off thc
Premises within thin). (30) days after rm:~ipt of the tax bill or ot~er evidenc~ of such incr~lse. Tenant. upon reasonable
notice to Landlord. shall have ~he right to contes~ g~e validity or amount or rate of such Real Property Taxes, or any factor
used in the dedermination thereo£ and Landlord agrees to render to Tenant all assistance reasonably possible in connection
therewith, at Tenant's sole expense, including the joining in. and signing o£ any pmt~'t or plmading which Tenant may
deem it advisable to file. and withholding paymem of the Rca[ Property. Taxes or any pan thereof (if permitted und~'r
applicable procedures), or pa.~nent of the same (rfp er mitred under applicable procedures) "Under protest" or into court.
provided that Tenant's. rights under this Section 5_1.4 shall be conditioned on Tenant providing a bond or other security,
protecting the Premises from forfeiture during the pendency of mty such'proceedings. Any such bond or security shall b~
reasonably satisfactory to Landlord as to form, amount, and ~. If Landlord and Tenant both desire to bring such
contest, they shall do so jointly and shall rcasonabk.- cooperate with one another in the prosecution thereof.
5.1.5. Chanee in O~mership.' Norwithszanding any other provision of this Lease, Tenant shall have no
responsibility with respect to any ' '
'.re. crease in Re~l. Pro .p~n)- Taxes _resulting from any of the following events that occur
before the end of the third Lca~
· car:. any sine. ~xcnange. sale-l~ck, master leasing, lcaseoi~ck, financing.
refinancing or other transfer of the Premises or am- part thereof'or interest therein by Landlord or an). tran~cr of any
corporate stock or parmerslup or other owncr~'p intcre~, in Landlord. or any ~thcr transfer among or bem'een
shareholders, parmcrx, affiliatcz or other persons holding beneficial or o~crship interests in Landlord. For purposes of
this Section 5.1.5, "Landlord" shall include Landlord's successors and assigns.
5.2 Personal Property Tax~ Prior to delinquency. Tenant shall pay all taxes and assessments levied upon trade
fixtures, altcrati0ns, additions, improvcment.~ irr,'cnto~ics and other.personal property locatcd and/or installed on thc
Premises by Tenant; and Tenant shall provide Lamilord copies of receipts for payment of all such taxes and assessments.
To the extent any such taxes are not separately assessed or billed to Tenant. Tenant shall pay the amount thereof as invoiced
b.v Landlord.
6. TRIPLE NET LEASE. It is intended that ~ Lease be a "triple net lease," and that the Rent to be paid hereunder
· bl,.' Tenant will be received by Landlord without any deduction or offset xxtiatsom, er by Tenant, foreseeable or unforeseeable.
except as other,vise expressfv provided to the cont~-a~,,,, in this Lease, Except as Cxl~ressly provided to the contrary in this
Lease. Landlord shall not 1~ required to make any ~xpenditure. incur any obligation, or ihcur any liability of ~nv kind
whatsoever in connection %%ith this Lease or the ov,'ne, rship, consthiction, n~intenance, operation or r~pair of the Pren~ises.
7. INSURANCE.
7.1 Landlord. Landlord shall maintain insuran~ insuring the Building against fire and "all risk" coverage (including
earthquake/volcanic action, flood and/or surface uater insurance) for thc full replacement cost of thc 'Building x~th
deductibles not to exc_~d_ $15.000.00 per occurrence and with the form and endorsements of such coverage as reasonably
· selected by Landlord. together with rental abatement insurance against loss of Rent in an amotmt equal to thc amount of
Rent for a period of at Iea.,,'t t3selvc (12) months eoatmen~ng on the date of loss. Landlord ma,,. also carry such other
insm-ance as Landlord ma.,,, reasonabh, deem prudent or advisable, including without limitation, liability insurance in such
amounts and on such terms as Landlord shall dclermme, but Landlord shall in any event carry, general liability instuance in
the amounts ~t forth in Scion 7.2.1. including a contractual liabilia, endors~nenL Tenant shall pay t~ Landiord an
amount equal to the premiums then due within fffl~--n (15) days after d~liverv to Tenant bv Landlord of an invoice for any
such premiums. Landlord max'. at Landlord's optioa, elect to collect such premiums from :fen,ant in advance on a monthlY-
or quarterly basis. ~ upon'an aco. ml invoice for m,:h premiums.. Landlord may not collect premiums in advance base~!
upon any estimate of the premiums. Prerruums for l:artial premium years, ifanv, falling within the Term. shall be prorated
so that Tenant shall not.be responsible for any portion thereof in respect of any l~eriod before the Rent Commencement Date
or after the end of the Term. Tenant's obliga[ions for premiums for the last f~ll or partial year of the Term shall survive the
expiration or earlier termination of this Lease. -
.
L.'.,~EAL_EST,,~.flCROC£N-:TUSTN_CA.LSTUSTN5 DOC 1:6'9S I>,~.~. :,.-_ :7 93 ! I 5.'3 A.\i
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7.2 .Tenant. Tenant shall, at Tcnant's expense, obtain and kccp in force at all times thc following insurance:
7.2.1 Cemmercial General Liability Insurance (Occurrence Form). A polio' of commercial general liabili6'
insurance (occurrence .form) having a combined single limit of not less than Two Million Dollars ($2,000,000) per.
occurrence and T~x).Million Dollars ($2.000.000) aggregate per location ff Tenant has multiplc locations, providing
coverage for. among, other things, blanket contractual liability, premises, products/completed operations and personal and
a~.crtising injury coverage, with deletion, if any construction ~' Tenant or its contractors is in progress at the Premises, of
the exclusion for explosion, collapse or underg~mu~ ha?nrd, i~ applicable (unless Tenant's cont,'aCtor is maintaining such
coverage), and. if n~, Tenant (or its contractor) shall provide for restoration of thc aggregate limit;
7.2.2 Automobile Liability Insuran .c~.. Comprehensive automobile liabili~ insurance having a combined single
limit of not less ~h~n .Two Million Dollars ($2.000,000) per occurrence and insunng Tenant against liability for claims
arising out of ownershiP, maintenance, or usc of any. owned, hired or non-owned automobiles;
7.2.3 Workers' Compe,~tJon and Fmplo~r'$ Liabiiity Insurance. Workers' compensation insurance having limits
not less than those required by state statute and fedeaxl statute, if applicable, and covering all persons employed by Tenant
in the conduct of its operations on the Premises (including thc all states endorsement and. if applicable, the volunteers
endorsement), together with employer's liability insurance coverage in thc amount of at least One Million Dollars
($1.000.000): and
7.2.4 Property Insurance. "All risk" pmiz31y insurance including boiler and machincty comprehensive form, if
appliCable, cox~rmg damage to or loss of any of Tenant's personal property,, fixtures, eqmpment and alterations, including
electronic data precessing equipment (collec:tively "Tenant's Prope .ny") (and covexa~ for the full re, placement cost thereof
including business interruption of Tenan0, together with. ffthe property of Tenant's invitee's is to be kept in the Premises.
x~-arehonser's legal liability or bailee customers insurance for the full replacement cost of the property belonging to invitees
and located in the Premises.
..
· 7.3 General.
7.3.1 Insurance Companies. Insurance tequimt to be maintained by Tenant shall b~ written by companies licensed
to do business in thc state in which the ~ are located and having a "General Policyholders Rating" of at least "A
minus, 8" as set forth in the most current issue of"Best's Insurance Guide."
7.3.2 Certificates of Insurance. Tenant shall deliver to Landlord certificates of insurance for all insurance.required
to be maintnined by Tenant in the form of E.xlu'bit D, attached hereto, no later than seven (7) days prior to the date of
possession of .the Premises. Tenant shall, at least ten (I0) days prior to expiration of the policy, furnish ~dlord with
certificates of renc-xx~l or "binders" thereof. Each certificate shall expressly'provide that such policies shall not be
cancelablc or otherwise subject to modification excqa after thirt}" (30) days prior written notice to the parties named as
additional insured in this Lease (except in the case of cancellation for nonpa.vmcnt of premium in which case cancellation
shall not take eff~-t until at least (10) dax~' notice has been given to Landlord). If Tenant fails to maintain any insurance
reqtured in this Lease, Tenant shall be liable for all losses and cost resulting from said failure.
7.3.3 Additional Insured. Landlord and any property management company of Landlord (provided that Tenant has
received x~Titten notice of such management company) for the Premises shall be named as additional insured trader all of
thc policies required by Section 7.2.1. Thc policies reqmrcd under Section 7.2.i shall provide for scvcrability of interest.
7.3.4 Pritr~rv Coverage. All insurance to be maintained by Tenant shall, except for workers' compensation and
employer's liabi!irv in.,~,t,-anc¢, be p:'imary, v4thout rigl',t'of contribution from insurance of Landlord. Any umbrella liability,
polic~' or exce_~s [~3bili~' policy (wt~ich shall be in "following form") s.~uxll provide that ff thc underlying aggregatc is
c.-~ha~r, ed, the execs covc~gc x<.~ll drop do~x~ as primary insurance. Thc limits of insurance maintained by Tenant shall
not limit Tenant's |iabil!~' under ~Js Lease.
7.3.5 Waiver of Subrogation. Tenant and Landlord each waives any right to rccovcr against the other for claims for
damag~ to thc. property,' of tht waix~ng part),' whether or not covered by insurance. This provision is' intcndcd to xx~n'c
fully, and for thc benefit of Landlord and TenanL any rights and/or claims which might give ris: to a right of subrogation in
fav~)r of an)' insurance carrier. Thc coverage obtained by Landlord and Tenant pursuant to this Lease shall include, without
limitation, a waiver of subrogation endorsement at13ched to thc certificate of insurance.
7.3.6 Noufication of Incidents. Tcnam shall noti~' Landlord within a reasonable time after Tenant's corporate
management at Tenant's home office learns of thc occurrenc~ of any accidents or incidents in thc Prcmises xvhich Tcnant's
management reasonably believes could give risc to a claim under any of the insurance policies required under this Section 7.
7.
' ~F_A.L_:_.ST'.~.(IC"P, .OC'~'_.~'TUST~_CA',,LSTUS'I'~5 DOC' 8 26'93 Draft 0g~?.~931 !'55 A..h4
'7..4. Indernnitv.
7.4.1 Indemnity by Tenant. Subject to Section 7.3.5,. Tenant shall indemnify., protect, defend (by counsel
reasonably acceptable to Landlord) and hold harmless Landlord and its partners, directors, officers, employees.
shareholders, lenders, agents, contractors and each of their successors and assigns from and against any and all claims.
juclgmcnts, causes ofactioa, damages, penalties, costs, liabilities, and expe~, including all costs, attorneys' fees, expenses
and liabilities (collectively, "Claims") incurred in the defense of any such claim or any action or prong brought
tlr~rcon, arising at any. time during or after the Term as a result (directly or indirectly) of-or in connection with (i) any ·
d~fault in the performance of any obligation on Tenant's part to be performed under the terms of this Lease, or (ii) Tenant's
use of thc Premises. fix: conduct of Tenant's bu.si.'ness or any activib', work or things done, permitted or suffered by Tenant .
in or about the Premis~ or other portions of the Project; except to the extent caused by Landlord's negligence or willful
misconduct, or that of Landlord's parmers, dirtx~ors, officers, empl~. ~, shareholders, lenders, agents or contractors.
7.4.2 Conditions to Indemnity.
(a) The obligation to indemnify contained in this Sectiod 7 or elsewhere in this Lease is conditioned upon the
part)., claiming the right-to be indemnified (the "Indenmitee") (i) first no ' .tifying thc other (the "Indemnitor") of the Claim for
which indemni~- is seughL provided that delay in notification shall release the Indemnitor only to the extent of a~tual
prejudice resulting from the dcla.x~ (ii) fully tendering to thc Indemmtor the defense of such Claim': and (iii) otherwise fully
compl.x~ng with all of the terms set forth in this .Section 7.4.2. With respect tO thc indemni .ty obligations undertaken by
Tenant in this Lease. thc Indemnitor shall at its cost defend 'or cause to be defended any. Claim against the Indcmmtee
alleging such acts or omissions and seeking damages which arc payable under the terms of this Lease. even if any of the
allegations of suth Claims are groundless, false or fraudulent: but the Indenmitor may make or Cause to be ma'de'.SUch
imIno~stig.a, tion and ~ settlement of any Claim .as the Indenmitor or its. insurers shall deem expedient. Unless thc
cmmtor s.h~...i d.edine .to so defend, the l.n. dcmmtee shall not. except at its own cost, volunlarily make any payment.
assume any omlgauon or recur any expense m connection with an.,,' Claim for which indemni .fy may be sought hereunder.
The Indcmnitee shall cooperate with thc Indemnitor or its insurer and. upon thc request of the Indemaitor, assist in making
seulements in the conduct of suits, and in enforcing any right of contribution or indemnity against any person or
organization (other than another Indemaitee or an employee of the Indenutitee or' of another Indcnutitee) who may be liable
to the Indemnitee because of acts or omissions with respect to which indemnity, is afforded under this Lease. Thc
Indemnitee shall attend hearings and trials and assist in securing, and giving evidence and obtaining the attendance of
(b) Upon the Indemnitee becoming axxare of any act or omission which might reasonably be expected to be the
basis of a Claim covered hereby, xxxitten notice shall be given by the Indemnitee or on its behalf to the Indemnitor as soon
as practicable, together with the fullest information obtainable, ff claim or demand is made or suit is brought against the
Indemmtee, the Indemnitee shall immediately forward to the Indemnitor every demand, notice, summons or other process
r~:~ived by the !ndemmtee or its representative.
(c) To the extent of any payment made hereunder the Indenmitor or. ff applicable, its insurer, shall be
subrogated to all of the Indemnitee's rights of recoveD' therefor, against any person or organi:,~tion (other than another
Inclemnitee or an employee of the Indemnitee or of another Indcmnitee) and the Inclemnitee shall execute and deliver
inszmments and papers and do whatever else is necessaD, to secure such rights. The Indenmitee shall do nothing after loss
to prejudice such fights.
(d) The obligations of Tenant under this Section 7.4 shall survive the termination of this Lease with respect to
claims or liability arising prior to such termirmtion.
7.5 Exemption of Landlord from Liabilitv. TenanL as a material part of the consideration to Landlord. herebv assumes
all risk of damage to propert3' including, but not limited Io. Tenant's fixtures, equipment, furniture and alteration~ or injur,'
to persons in. upon or about the Premises or other portions of the Project arising from any cause, and Tenant hereby g~ix-e's
all claims in respect thereof against Landlord. except to hie ex'tent such claims are caused by L~ndlord's negligence or
wiifful misconduct (or that of anyone for ,,,,'hose negligence or wilfful misconduct Landlord is l~gally responsible). Tenant
hereby agrees that Landlord shall not be liable for injuD' to Tenant's business or any loss of income therefrom or for damage
to the property, of Tenant. or injury, to or death of Tenant. Tenant's employees, inv~tee's, cu~omers, agents or contractors or
am' other person in or about the Premises or the Project, whether such damage or injury is caused by fire, steam, electricity,,
gas. v,~ter or rain. or from the breakage, leakage or other defects of sprinklers, wires, appliances, plumbing, sir
cor. zLitioning or lighting fixtures, or from any other cause, whether said damage or injun' results from conditions arising
upen the Premises, or from other sources or places, and regardless of whether the cause'of such damage or injury or the
.
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mca_ns of repairing the same is inaccessible ~o Tenant. except to the extent cau.se.d bv Landlord's negligence or ~,'~llfi~l
misconduct (or that ofenyone for whose negligence or willful misconduct Landlord is legally responsible).
g. REPAIRS AND MAINTENA~CI~..
g. 1 Landlord. Landlord shall, subject to the following sentence, maintain thc strucou~ portions of thc roof. foundation,
and load-bearing portions of walls (excluding wall coverings, painting, glass and doors) of the Improvements. Landlord
shall not be required ~o make any repair resulting from (i) any alteration or modification to the Improvements or to
mechanical equipment within thc Improvements performed by, for or' becansc of Tenant or to special equipment or sy~cms.
installed by, for or because of TcnanL (ii) thc installation, usc or operation of Tcnant°s property, fixtures and equipment.
(iii) the moving of Tenant's property in or out of the Improvements or in and about thc Premises, (iv) Tenant's usc or
occupancy, of the Premises in violation of Section 10 of this Lease or in the manner not contemplated by the panics at the
time of the execution of tiffs Lease, (v) the acts or omissions of Tenant and Tenant's employees, agents, invitees, subtend_hts.
licensees or contractors. (vi) fire and other casualty, except as provided by Section 12 of this Lease or (vii) condernnntion,
except as provided in Section 13 of this Lease. Landlord shall have no obligation to make repairs under this Section 8.1
until a reasonable time after the earlier of Landlord's actual knowledge ot~ or Landlord's receipt, of written notice from
Tenant oK the need for such repairs. Tenant waives any right to rep/dr the Premises at the ~ of Landlord under any
applicable governmental laws, ordinances, statutes, orders or regulations now or hereafter in effect which might other~/s~
apply. Subject to Section 8.1.4. Landlord shall perform any structural alterations or modifications required by an),
governmental law, order or regulation now or hereafter existing regarding seismic safety. '
8. I.I Emer~encdes. In the event of an emergency,.Tenant may, after using reasonable efforts to give Landlord such
notice as may be reasonable under the ci~ces, make any repairs required of Landlord hereunder to the ex'tent
reasonably no:cssarv to __~eo_.uc thc Premises or prevent injury to person or property. Landlord shall reimburse Tenant
within 20 days of L~mdlord's receipt of Tenant's' written demand -for the cost of such repairs accompanied bv copies of the
invoices, which cost shall be reasonable under thc cirounstances. '
..
8.1.2 Failure to Repair. If Landlord fails to commence any of the repairs required to be made by Landlord under
this Lease within 30 days after receipt ofwritten notice from Tenant of thc necessity therefor (or thereafter fails to prosecute
thc same diligently to completion), Tenant, in addition to any other rights it may have hereunder shall have the right but not
the obligation to ~ said repairs on behalf of Landlord, and Landlord shall reimburse Tenant for the entire reasonable
cost thereof within 20. days of Landlord's receipt of Tenant's demand accompanied by copies of the invoices.
8.1.3 Non-Interference. landlord shall use commercially reasonable efforts to make any repairs, additions or
alterations, in, about or affecting, the Premises or adjoining premises, during non-business hours and with minimum
disruption to Tenant's business and shall promptly restore the Premises following any such work.
·
8.1.4. Certain Costs. lt~ in order Io satisfy- thc requirements of any g°vCrnmenlal laws, ordinances, statutes, orders
and regulations which are no[ in existence on the date hereof, Landlord makes any structural alterations, structural changes,
structural repairs, or structural additions to the Premises, Landlord's actual and reasonable cosl of so doing shall be
amortized on a straight line basis, without interest, over a useful life of 20 years, and the monthly installments of the cost
shall be added to Lhe monthly installments of Unimproved Real By way °it example, if the cost ~'o Landlord was $?2.000,
then, from and after the completion of such work. the monthly installments of Unimproved Rent otherwise due would
increase ~, $300 per month until the expiration or sooner termination of this Lease or the date that the entire $'/2.000 is
amortized, whichever is earlier.
8.2 .Tenant. Except for the portions of the Premises expressly required to be maintained bv Landlord under Section 1/. 1.
and ex,-'cpt as sei forth in Seciicn 10. I, TenanL at Tenant's expense, shall maintain the Pren~i.~s in good order, condition
and repair, including, without limitation, subfioors and floor covering!, walls and wall coverings, mechanic-al, electrical.
and plumbing systems, doo~-~, ~indows. parking lots, end truck aprons, ~outtcrs and downslx)uts' landscaping and any
signage, and shali nmintain the Premises in a manner compatible with the standards of a firsl class retail operation.
shall enter into reguiarly scheduled p:'evcntive maintenenceJscrvicc contracts with maintenance contractors reasonably
acceptable lo Landlord for servicing all hot ~x~Icr and healing and air conditioning systems and equipment in the Premise~.
In thc eye,it Tenant fails, in the reasonable judgment of Landlord. lo maintain the Premises in good order, condition and
repair, Landlord. upon tx. venty (20) days' ~Titlen notice to Tenant (or. in tl:e event of an emergency, after using reasonable
efforts to give Tenant. such notice as may be reasonable under the circmn.stances), shall have th'e right to perform such
maintenance, repairs'or refil~ishing al Tenant's exl)en~ urdcss within such t/mc. Tenan! commences so to do.
At such i:in~e as Landlord developes ~:he Project, Landlord ~i~II assume responsibility for
maintaining the landscaped areas of t:he Premises that ~ere originally part of Landlord's
~ork. Tenanl: ~ill pay a pro rata share of l:he cost of maintaining those areas, based
on The ratio of the leasable area of the building To i:he leasable area of all buildings
ri l:he ProjecT. Tenant ~ill noc be responsible for any other fees or costs
common areas) ~iTh respect co The Project
'~.
L:/RFr. AL_ESTYv{ICROCE.~.-,TUSTN_CA~L.~TU~TNd. DOC ~.'26A)3 Draft 0g/27/9311 :.~5
9. ALTERATIONS.
9:1 -Trade Fixtures; Alteration,:. Tenant may install necessary trade fixtures, equipment and furniture in the PremL.~.
provided that such items arc installed and are'removable without structural or material damage to the Premises or the
ProjecL Tenant shall not construct, nor allow to be constructed, any alterations or physical additions in, about or to thc
Premises (except interior non-suu~ alterations) without obtaining the prior written consent of Landlord. v,'hich cons~t
shall be conditioned upon Tenant's compliance with Landlord's reasonable requirements regarding construction of
improvements and alterations but such consent otherwise shall not be unreasonably withheld. Tenant shall submit plans
and specifications to Landlord with Tenant's. request for approval. Tenant will notify Landlord. for informational p~-
only. before undertaking any interior non-structural alterations the cost of which' Tenant reasonably expects to exceed_
$100,000 in the aggregate in any 12- month period. Whether or not notice to or consent of Landlord is required, Tenant
shall file a notice of completion after completion of any work under this Section 9.1 and provide Landlord ~ith a copy
thereof, and shall provide Landlord v4th a set of 'as-built" drawings for any such work.
· .
9.2 Damage; Removal. Tenant shall repair all damage to the Premises caused by the installation or removal of Tena~s
fixtures, equipment, furniture and alterations. All such removals and restoration shall be accomplished in a good and
workmanlike manner and so as not to cause any damage to the Premises or the Project whatsoever.
9.3. Liens. Tenant shall promptly pax, and discharge all claims for labor performed, supplies furnished and se~'ices
rendered at the request of Tenant an/i shall keep the Premises free of all mechanics' and materialmen's liens in connection
therewith. Tenant shall provide at least ten (10). days prior written notice to Landlord before any labor is perfonmd.
supplies furnished or services rendered on or at the lSremises and Landlord Shall have the right to post on the
nouces of non-responsibili .ty. ffany lien is filed, Tenant shall cause such-lien to be releas~ and removed, bv bonding or
otherwise, %~th reasonable promptness, but in any event within thirty (30) days after Tenant receives nouce ~ereof, and if
Tenant fails to do so, Landlord may bond such 'lien or take such other action as may be necessary to remove such Be:a.
provided that Landlord shall not l~ay the lien claimant unless Tenant's failure to bond or othe~'wise remove the l~a
continues for ten (10) days after Tenant's receipt of a second notice from Landlord, notifying Tenant that the thirty
days have expired and tl~t Landlord intends to pay the claimant. Tenant shall pay Landlord any mounts expen_~__ bv
Landlord under this Section 9.3 together with interest thereon at the Applicable Interest Rate from ~e date of expencUmre. '
i0. _USE. '
I 0.1 ..Use of Premises. Except in the event of an assignment or subletting for another use pursuant to Landlord's consexa
under Section 15.1. the Premises shall be used only for the Permitted Uses set forth in the Basic Lease Information and for
no other uses. Tenant's use of the Premises shall be in compliance with. and subject to all applicable governmental la~
ordinances, statutes, orders and regulations and anv CC&Rs or any supplement thereto recorded in any official or public .
records with respect to the Project or any portion th'ereof. In no event shall the Premises be used for any of'the Protu'bhed
Uses set forth on Exhibit E attached hereto. Tenant shall comply with the rules and regulations attache~i hereto as F_xlu'Nt
F. together with such reasonable additional rules, and regulations as Landlord mav from time to time prescribe and which do
not impose any Material Change in the terms of this Lease (as defined in Secti~an 16.4). Tenant shall not commit
overload the floors or structure of the Premises. subject the Premises or the Project to any use which would damage the same
or increase the risk of loss or violate any insurance coverage~ permit any unreasonable'odors, smoke, dust. gas. substan~_.
noise or vibrations to emanate from ~he Premises. or take any action which would constitute a nuisance or v, xxtld
unreasonably disturb, obstruct or endanger any other tenants of the Project, Tenant shall promptly comply with the
reasonable requirements of any board of fire insurance underwriters or other similar body now or hereafter constitute._.
Tenant shall not do any act which shall in any ~ay encumber the-title of Landlord in and'to the Premises or the
Notwithstanding the f~regoing~ there shall b~ no obligation on the part of Tenant to comply with any of the foregoir~
governmental laws. ordinances, statutes, orders and regulations, CC&I~, or the requirements of any board of fire
underwriters or similar body, which may require structu.,-~ alterations, strucwr~ changes, stru~ repairs, or strucxu,-~
additions, all of which required structural alterations, changes, repairs or additions shall be the obligation of Landlo..-~
{sabject in the case of certain requirements of law to Section 8.1.4) unless made necessary by the negligence or default cf
Tenant. in which event. Tenant shall comply at its expense. '
10.2 Continuous Operation. Tenant will continuoush, conduct ~ts business at the Premises during Tenant's norrr~
business hours. Mondays through Saturdays. legal holidaC,.s excepted. Nothing herein shall prohibit Tenant from openir=o
for business on Sundays at Tenant's option. Tenant shall' not close its business at the Premises for any period exc'eed~
thirty (30) days, unless such closing is necessitated bv taking of inventor).,, remodelling or "resets" of th~ Premises. dama£~.
or destruction to the Premises. or matters within the'pun,'iew of Section 18.13. and any closing permitted by this senten~-e.
shall be of reasonable duration onlv. Tenant shall maintain a full staff of employees an~l an adequate stock o~' merchandi~.
Notwithstanding this Section 10.2: Tenant may cease operation (but without discontinuing payment of Rent or performam~
of Tenant's other obligations under tiffs Leas[). in which event, cessation of operation shaft not constitute a defauJt. ,~c
10.
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Tenant remains closed for four (4) consecuUve months, then at any time until such time. as a.nv. as Tenant resumes
operation. Landlord at its opuon may temunate this Lease b)- thirt)-'(30) days' written notice to T~nant. in which event
Tenant shall surrender possession of the Premises in the condition required by this Lease, and this Lease shall terminate
s, ith no further liabilio' of either pan).' (subject only to such obligations as expressly survive expiration or termination of the
Lease). Any such notice to Tenant shall be final.
10.3 Exclusive Use. Landlord covenants and agrees that so long as Tenant is operating a computer store in the Premises.
Landlord shall not use. lease or permit the use of any portion of the Projec~ as now or hereafter exio-'ting, for the operation
of any Competing Business. as hereinafter defined. Tenant shall also have the fight in an3,-event to obtain injunctive relief
against the continuance of such Competing Business. The covenants contained in this Section are both real and personal '
and shall run with the land, and shall bind and inure to the benefit oftbe parties and their successors and assigns. Landlord
agrees that upon request of Tenant. Landlord shall execute and deliver to Tenant a short form or memorandum of lease, in
recordable form~ reciting the restriction contained herein, subject to the provisions of Section 18.1.9. Landlord further
agrees that Tenant ma.s: at Tenant's option, record the same. subject to the provisions of Section 18.1.9. As used in this
~ the .term 'Competing Business' shall mean any business that devotes, in the aggregate, t~nty, five percent (25%) or
more of its floor space to thc sale., display, o£ or offering or exposing for sale. in any combination, an), of thc goods and
services permitted under 'Permitted Uses" in the Basic Lease Information. "Competing Business" shall not include any use
~: an existing tenant permitted under an existing lease without the need for Landlord's consent thereto, nor any renewals or
extensions of such lea~ but shall include an expansion of the space, demised under such lease or under a re~, extension
or replacemenL unless such expm~ion results from an existing tenam's exercise of an enforceable option under a lease
existing on the date hereof.
11. ENVIRONMENTAL MATTERS.
11.1 Definitions. As used herein:
11. I. 1 "IquTardous Materials" means any chemical, substance, material, controlled substance, object condition.
waste, living orgamsm or combination thereof which is or may be b~rdous to human health or safety or to the
environment due to its radioactivit); ignitabili~', corrosivi .ry. reactivi .ty, explosivity, toxici .ty, carcinogenici .ty, n~utagenicit):
ph.vtotoxici~: infectiousness or other harmful or potentially harmful properties or effects, including. ~thout limitation.
petroleum and petrolo, xm. products, asbestos, radon, polychlorinated biphenyls (PCBs) and all of those chemicals.
substances, materials, controlled substances, objects, conditions.'wastes, living organisms or combinations thereof`,vhich are
now or become in the future listed, defined or regulated in an.,,- manner by. any Envirom'nental Law based upon. directly or
indirectly, such properties or effects.
11.1.2 "Em'ironmental Laws" means' any and all federal, state or local em4ronmental, health, and/or sa/et,,',
related lassna, regulations, standards, decisions of courts, ordinances, rules, codes, orders, decrees, directives, gui&lings.
permits or permit conditions, currently existing and as mended, enacted, issued or adopted in the future which are or
become applicable to Tenant. the Premises. the Building or the Project
11.1.3 "Environmental Condition" means any adverse condition relating to any Hazardous Materials or the
environment, including surface xx~ater, groundsater, drinking `,sater supply, land. surface or subsurface strata or the ambient
air and includes air. land and water pollutants, noise, vibration, fight and odors.
11.1.4 "S~ed Environmental Condition" means any Environmental Condition to the extent resulting
(a) from the acts or omissions of Landlord or any of Landlord's Parties (as defined in Section 11.3 below), or Co) from any
condition which Tenant proves to have been existing on or prior to August 10. 1993, being the date of Tenant's initial entr;,'
onto the Premises. or (c) fiom anv condition identified in either Phase One Report. or (d) from any migration onto or undei'
the Premises of aris, condition or substance described in either Phase One Report; but orflv to ~e extent that v. nv of the '
foregoing were not caused or contributed *,o bx' Tenant or any of Tenant's Parties.
1 I. 1.5 'Non-Specified Environmental Condition" means am- Environmental Condition other than. or except to
the ex'tent constituting, a Specified Environmental Condition.
11.1.6 "Pha_~ One Reports" means the repons furnished tn- Landlord to Tenant dated March 28. 1990 and
August 20, 1993 prepared by Converse Environmental West and by barnes & Moore. respectiveb-, describing certain
environmental conditions in. on. or under the Prenuses and certain neighboring propen).'.
11.2 Tenant's Obligations. Tenant shall not cause or permit, nor allmv any of Tenam's employees, agents, customers.
· visitors, invitees, licensees, contractors, assignees or subtenants (collectivel,,-. "Tenant's Parties") to cause or permit, any
Hazardous Materials to be brought upon. stored, manufactured, generated, blended, handled, re%'cled, treated, disposed o'r
11.
L R. EAL_EST&OCKOCE."~ TUS.--':_CA'-LS']';US'I"~5.DOC 8 26 93 Draft O8/27,'931 ! 55 A_\!
used on. under e: about the Premises or the Project. except for routine office and janitorial supplies in ustml and custornarx-
qtmntitie$ s~ored, used and disposed of in accordance with all applicable Environmental Lav~. Tenam and Tenant's Parue's
shall comply x,`~th all Environmental La%,`~ (except to the. ex'lent the violation results from a Specified Environmental
Condition) and promptly noti~., Landlord of the violation of any Environmental Law or presence of any I4sT~-dous
Materials. other than office and janitorial supplies as permitled above` on the Prermses. Landlord shall have the fight, at
reasonable times and intervals, after reasonable notice to Tenant, to enter upon and inspect the Premises'and to conduct
tests, monitoring and investigations. If such tests indicate the presence of any Non-Specified Environmental Condition.
Tenant shall reimbm'~ Landlord for the co~ of conducting such tests. In the event of any such Non-Specified .
Environmental Condition, Tenant shall promptly take any and all steps necessary to recti~' the .~ane to Landlord's
reasonable satis~-tion or shall, at Landlord's election, reimburse Landlord. upon demand, ~'or the reasonable cost to
Landlord of perf~g recti~. 'ng work. The reimbursement shall be paid to Landlord in advance of Landlord's performing
such x~x)rk, based upon Landlord's reasonable estimate of the cost thereof; and upon completion of such work by Landlord.
Tenant shall pay to .Landlord any shortfall v;ithin thirty (30) days ~ftcr Landlord bills Tenant therefore or Landlord shall
xvithin thiw,.- (30) da.vs refund to Tenant an.,,' excess deposiL.as the case may be.
11.3 Indemnification By Tenant. Subject. to Secti. 'on 7.3.5 and Sec~on 7.2, Tenant shall indemnify; protect defend Coy'
counsel acceptable, to Landlord) and hold harmless Landlord and its ~ers, directors, officers, employees, shareholders,
lenders, agents, contractors and each of their respective successors and assigns (individually and collectively, "Landlord's
Parties") from and against an,,,- and all claims, judgments, causes of action` damages, . penalties, fines, taxes, costs., liabilities,
losses and e.x'penses arising at an.',- time during or after the Term as a result (directly or indirectly) of or in connection ,~-~th
(a) Tenant and/or Tenant's Parties' breach of any prohibition Or provision of the preceding section, or Co) the presence of
Hazardous lVlaterials on. under or about the Pren~ises or other property, as a result (directly or indirectly) of Tenant's and/or
Tenant's Panics' activities, or failure to act. in connection with the Premises. This indet~tity shall i~clude the reasonable
cost of an.,,, rcqtt/r~ or necessary repair, cleanup or dctoxification- and thc preparation and implementation of any closure..
monitoring. 'or otha' req~rcd plans, whether such action is required or necessary prior to or following thc termination of flUS
Lease. Neither thc Written consent bv Landlord to thc presence ofl'!_n~'nrdous lV~terials on. under or about thc Premises. nor
the stria compliance ~, Tenant ~ all Environmental Laws, shall excuse Tenant from Tenant's obligation of indemnifi-
cation pursuant I~reto. Tenant's obligations pursuant to the foregoing indemnity, shall survive thc termination of flus Lease.
Nothing in flus Lease shall be construed to require Tenant to indemnify., protect, defend or hold harmless Landlord or
Landlord's Panics from any of thc foregoing to thc extent arising as a result (directly or indirectly) of or in connection ~ith
any Specified Emironmcn{al Condition. '
11.4 Specified Environmental Condition..Landlord shall promptly comply with any order' of any court or governmental
Or adminisuative body concerning the remediation of any Specified l~nvironmental Condition. subjem to any lawful right to
cont~ or appeal. Subjem to Section 11.5 below. Landlord may use any commercially reasonable method of remediation` so
long as the metbod satisfies the requirements of the order. Whether or not such an order is issued, if. during any period
during which as the result of a Specified Environmental Condition. or due to the performance of any work to remediate the
same. any pan of the Premises is untenanmble or Tenant is prevented from operating its business therein in the normal
course, the Rent aJad other charges payable hereunder shall be abated in proportion to the leasable area of the Premises so
affected. If the umenantabilitv or inability is so ex'~ensive as to render the Premises substanuallv unfit for occupanc:,.- by
Tenant for the normal conduc~ of its business, the Rent and other charges pa.,able hereunder shall abate until such time as
Tenant is able to ~esume the conduct of its business. If any such rent abatement continues for more than one hundred eight3.'
(180) days, then until such untenantabili~- or inabili .ty ha~ ended. (i) Tenant shall have the right to terminate this Lease bv
six-t3.' (60) days' sTitten notice to Landlord at any time after such one hundred eighF (180) day period, which notice shall I~
void if. within tim-R,.' (30) days after the dat~ Landlord receives the notice, the Specified Environmental Condition is
remediated, the Premises are re~ored to tenantable condition, and Tenant receives written notice from Landlord of such
facts, together ~th. a re~x)n to such effect from a duly licensed an.d qtmlified engineer w~ith recognized experience and
reputatien in en,,~roamental mauers, and (ii) Landlorci shall have the right to terminate this Lease by thirty (30) days'
X,`Tinen noUce to Tenant at any time after Such one hundred eigh .fy ~180) da.,,' period unless, within suc~n thirt:v (30) days,
Tenant agrees to ~,aive the ab:~tement of Rent and other charges (but not any pan abatement) and resume paying Rent and
other charges nor~athstanding the untenanuabilitv or inability. If Tenan~ agrees to waive the abatement, then (a) this Lease
shall continue ia effect. (b) Landlord shall use ~ommercialiv reasonable efforts to remediate the Specified Environmental
Condiuon and re, ore the Premises to tenantable condition ~s promptly as possible, but in any event w~tl,an one vear from
the ~te (the "Abatement Date") that the untenamabilitv or unusabiliP,, began- (c) Tenant shal'! t)av curren~ :~nd fi~mr,. ~,,n~
., d~other c .h.h.h.h~g~. as. ~¢.same become due. but shal. l not be obligated to pay any Rent or other charges abated in respect of
me nrst one nune. re~ e~gnt5. (180) days of the Rent at)atement, and (d) Tenant's right to terminate the Lease under clause (i)
of flus Section 1i.4. shall terminate, except as set forth below. If the remediation is not completed bv the end of the one
>'ear period, the a~atement of Rent and other charges ,,,,'ill resume as of the anniversary of the Abatement Date. At any time
during or after the 1 lth month from the Abalemenl Date. Landlord may agmn notify Tenant thal Landlord elects to
terminate this Lease by thirty (30) days' wriuen notice ~o Tenant unless. %%'ithin such t'hirtv (30) days. Tenant agrees to
waive the next s~× rnor~ths' al~alemen! (~f Rent and other charges not',cithstanding the unlenan'tabilit¥ or inability. If Tenant
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so agrees, Landlord will continue to usc commercially reasonable efforts to complete such activities within thc next six
months, and thc parties shall proceed as set forth in ~lauses (a) through (d) above for such six months, after which time
Landlord's option to terminate thc Lease and Tenant's option to ~mvc abatement of Rent and other charges shall bc revived.
and so on at successive six month intervals until the Specified Enviroamenlal Condition is rcmediatcd or Tenant declines to
agree to waive thc abatement. In thc event that this Lease shall be terminated as a result of a Specified Environmental
Condition. if any Rent or other charge has been paid in advance, Landlord shall refund to Tenant all sun~ so paid for thc
period after the date of untcnantability or inability to operate (other than amounts in respect of any pcrio~l, as to which
Tenant has waived thc abatement, to the extent such period has elapsed). ..
11.5 Interference. Landlord shall use commercially reasonable efforts to prevent or minimize any interference with
Tenant's business operations in thc Premises in connection with Landlord's activities under Section 1.1.
11.6 Tcnant*s Right to Remediate.. ff Landlord fails to commence any remediation of a Specified Environmental
Condition that results in thc right to a full or partial abatement of Rent and other charges under Section 11.4, (whether. or
not required to be made by Landlord under any order of any court or governmental or administrative body) within 30 days
after written notice from Tenant of thc necessi~' therefor (or thereafter fails to prosecute thc same diligently to completion),
Tenant. in addition to any other rights it n~y have hereunder shall hate the right but not the obligation to perform said
remediation on behalf of Landlord, and Landlord shall reimburse Tenant for the entire reasonable cost thereof within 20'
days of Landlord's receipt of Tenant's demand accompanied, by. copies of the invoices.
1 I.? No Consequential Damages. Tenant ,~iv~es any and all remedies against Landlord and Landlord's Parties as a
result of any Specified Environmental Condition. other than T~'s right to remediatc and be reimbursed under Section
11.6, and the right to abate Rent and other charges and/or to terminate the Lease.under'Section 11.4. In no event x~ill.
Landlord or Landlord's 'Parties be liable to Tenant for any consequential damages arising out of any Specified
Environmental Condition, including but not limited to loss of sales, profits, or revenue, loss of leasehold improvements,
brokerage fees, and moving expenses.
12. DAMAGE AND DESTRUCTION.
12.1 Casualty. If the Premises should be damaged or destroyed by fire or other casuals, Tenant shall give immediate
written notice to Landlord. Within thirty (30) da)~ after receipt thereof, Landlord shall notify Tenant whether the necessa~.?
repairs can reasonably be made within 6r one year from the date of such notice.
12.1.1 Less Than One Year. If thc Premises should be damaged only to such extent that rebuilding'or repairs can
reasonably be completed within one year, this Lease shall not terminate and, provided that insurance proceeds are available
to fully repair thc damage. Landlord shall promptly commence and diligently prosecute to completion thc repairs to thc
PremiSes. except that Landlord shall not be requi'red to rebuild.. ~pair or replace any alterations, partitions, fixtures.
additions and other improvements (collectively, "Improvements") which ma)' have been p~aced itc on or about thc Premises
bv or for thc benefit of Tenant. If Tenant is reqmred to vacate all or a portion of thc Premises dunng Landlord's repair
~crcof, or if all or a part of the Premises arc rendered unfit for occupancy, for Tenant's usc, the Base Rent and other charges
payable hereunder shall be abated proportionately from the date thc same are rendered unfit by thc fire or casual .ty or thc
date Tenant x~cates all or a portion of thc Premises. as the case may be. If thc fire or casualty was caused by thc willful
misconduct or thc negligence of Tenant.. its agents, contractors or empl~'ees, Base Rent and other charges shall abate only
to thc extent rental abatement insurance proceeds are received by Landlord. Any abatement under this Section sha~l
continue only during thc period thc Premises arc unfit for occupant' for Tersant's usc.
'12.1.2 Greater Than One Year. If thc Premises should be so damaged that rebuilding or repairs canr~ot be como
~lcted within one year. either L~ndiord or Tenant may tcrminete tiffs Lease by g~ving written notice within ten (10) days
after notice from L~ndlotd speci~ng such time period'of repaic, and this Lcasc's~l terminate and the Rent shall be abated'
from thc date Tenant vacates thc Premises. In thc event that neither party elects to terminate this Lease. Landlord shall
promptly commence and diligently prosecute to completion the repairs to thc Premises. provided insurance proceeds are
available to rel~r thc damage (except that Landlord shall not be required ~o rebuild, repair or replace any Improvements
which may have be~n placed in. on or about the Premises by or for the benefit of Tenant). Notwithstanding the foregoing.
Landlord ~hall not exercise its option Io terminate so long as Tenant agree~ to continue pa.~4ng Rent to thc extent thc same
is not covered by thc proceeds of rental abatement insurance. Excel~ to thc exlent of such agreement by TenanL Rent shall
abate a.s set forl~ in Section 12. I.I. ffLandlord fails to commence or complete the repairs. Tenant shall have thc rights set
forth in Section 8.1.2 to complete thc repair or restoration.
13.
L '-.REAL_EST~.flCR~E.X'.TUST~_CA;LSTUST~5 DOC &26~3 Dr~fi 08:~7/931 ! 55 AM
after thc date of such damage or destruction, to cxcrc~sc), th~s Lease may be terminated at Tenant's option upon wrinen
notice to Landlord within sixnx' (60) days of such casual .ry.
12.2 Tenant's Fault. ffthe Premises or any portion of the Premises is damaged resulting from the negligence or breach of
this Lease by Tenant or any of Tenant's Parties. Rent shall not be reduced during the repair of such damage except to the
ex'tent of any rental abatement insurance paid to Landlord. and Tenant shall be 'liable to Landlord for the cost of the repair
mused thereby to the c-xaent such cost is not covered by insurance proceeds.
·
12.3.._Um__'nsur~.w~l.n( In the event that th.e Premises or any portio, n of the Premises iS'damaged to the extent Tenant '
is uname to use me vrmuses and such damage ~s not fully covered by. insurance proceeds received bv Landlord or in the
event that the holder of any indebtedness secared by the Premises requires that the insurance proceeds be-applied to such
indebtedness, them unless ibis Lease is terminat&l by either party, under Section 12.1.2 or Section 12.1.3, Landlord shall
repair such damage as required by Section 12.1.1 and 12.1.2. I. fthe damage was caused by the act or omission of Landlord
or Landlord's Parties. the portion of the repair not covered by insurance shall be performed at Landlord's expense.' If the
damage was not caused by the act or omission of Landlord. Tenant shall reimburse Landlord for the reasonable cost of the
repair, subject to the folknving.
12.3.1 Before undertaking any such repair, LandlOrd shall notify. Tenant of the estimated cost thereof and the
amount not covered bv insurance. At Landlord's option, the estimate may be based on bids obtained by Landlord from
reputable contractors t:or the repair w~rk. on either a stipulated sum or guaranteed maximum cost basis.. Within 30 days
after receiving the estimat~ Tenant shall have the right to terminate' this Lease upon 30 days' notice to Landlord. subject to
(a) and Co) below. If the Lease is not terminated, Tenant's liability shall in no event exceed the amount of the estimate.
(a)- If Landlord proves that the damage ~as caused by the act or omission of Tenant or Tenant's Parties.
Tenant will have no right to terminate under this Section 12.3 unless either (i) the estimate exceeds the lesser of $15.000 or
the actual deductible amount under the fire and all risk coverage then carried by Landlord. or (ii) Tenant would have had
the right to terminate this Lease under Section 12.1.2 or 12.1.3. but Tenant shall in any event remain liable to Landlord as
set forth in Section 12.2.
Co) Landlord can nullS- am- notice of termination by Tenant under this Section 12.3 by notifying Tenant that Landlord
elects to rebuild the Premises at Landlord's own expense, and that Tenant will be entitled to an abatement of Rent and other
charges as set forth ia Section 12.3.1(c). Any such notice tn' Landlord must be given within 10 business daw after
Landlord receives Tenant's notice of termination. Notice by Landlord under this Section' 12.3. leo) will not be eff~nive to
nullify Tenant's notice of termination if Tenant would have had the right to terminate the Lease pursuant to Section 12.1.2
or 12.1.3.
· (c) ffI2Miord rebuilds under Section 12.3.1(b), Rent and other charges shall abate, to the ext~nt set forth in
Section 12.1.1, subject, htm'~'er, to Section 12.2.
12.3.2 Tenant shall have the option of paying the reimbursement on a percentage of completion basis, with a
10% retainage, or deferring reimbursement until the repairs are completed and Premises are reads' for Tenant's occupancy.
12.3.3 ffTenant elects to pay the reimbursement on a percentage of completion basis. Landlord shall submit ~ts
draw requests not more often than monthly, accompanied ~. paid invoices, certificates of Landlord's architect and general
contractor evidencing the percentage of completion, and conditional or unconditional lien waivers from all contractors.
subcontractors and suppliers. Tenant shall pay each draw request within 20 days after submission. The final draw reauest
· shall include unconditional lien v. aive."s.
12.3.4 If Tenant elec:s to defer paying the reimbursement until the repairs are completed and the Premises
are ready for Tenant's occupancy, pa)anent shall be due wi'dxin 20 days after demznd, accompanied by evidence of
Landlord's cost. and Tenant shall. ~ . , '., .' ' ' ~ y 'Land, ord from the date
s~multaneouslv pa,, Landlord interest on the amount ex nded b '
of expenditure through the date o~ re~moursement, at a rate equal to the rate of interest charged to Landlord by the
institution from which Landlord borrowed the repair funds, or. ff Landlord did not borrow he repair funds, then at a rate
equal to the Reference Rate described in Section 3.2 (being two percent per annum less than the Applicable Interest Rate~.
12.4 Waiver. With respecn to any damage or destruction which Landlord is obligated to repair or mas- elect to repair.
Tenant waives all rights to terminate this Lease (except as ex'presslv pros4ded herein) pursuant to rights o~erwise presently
or hereafter accorded by law. ' '
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13. EMTNE~ DOMAIN.
13.1 Total Condemnation. If ali of the Premises is condemned by eminent domain, inversely condemned or sold or
othem~se conveyed under threat of condenmation for any public or qu~asi-public use or purpose ("~ondcmned"), this Lease
shall terminate as of the earlier of the date the condemning authority, uakes title to or possession of thc Premises, and Rent
shall be adjusted to thc date of termination. '
13.2 Partial Condemnation. If any portion of the Premises is Condemned and such partial condemnation materially
imnairs Tenant's ability to usc thc P[cmiscs for Tenant's b.usiness: Te~nant. shall have the option of either (i) keeping this
~ in effect or (ii) terminating this Lease. such terminauon to oe ctlecuve as of the earlier of thc date title vests in the
condemning authority or as of the date an order of immediate possession is issued, and Rent shall be adjusted to the date of
termination. If Tenant elects to keep the Lease in effect, or if the partial condemnation does not materially impair Tenant's
ability to usc the Premises for the business of Tenant, Landlord shall promptly restore the Premises to thc extent of any con-
dernnation proceeds recovered by Landlord. excluding thc portion thereof lost in such condemnation, and this Lease shall
continue in full force and. effect except that after the date of SUCh titl~ ~ Rent shall be adjusted as reasonably deter-
mined bv Landlord and Tenant. or. if thc parties arc unable to agree, then bb' appraisal using thc procedures set forth in
Section '2.3.5. For purposes of this Section 13.2. thc Premises shall be deemed unsuitable ff, as a result of thc
Condemnation. (a) the loading dock and truck turnaround area for the Premises is. in Tenant's reasonable business
judgment exercised in good faith, no longer suitable for Tenant's usc (unless a substitute loading mca satisfacto~', to Tenant
is provided within ninety. (90) days of the Condemnation). C0) any means of ingress or egress or other means of acce~ to the
Premises is altered so as to materially adx~rselv affect the flow of u'aflic in. to. or from thc Premises (unless a substitute
means of access satisfactory, to Tenant is prm, id~xi within mnety (90)days ofthe Condemnation). (c) the parking area of thc
Premises is reduced by ten percent (10%) or more. or is reduced below the level required by lan' (unless. in either case.
substitute parking sati'dactory to Tenant as to contigui'ty, location, configmation and conditi~m is provided xxith/n
(90) days of the Condemnation), or (d) at least ten percent (10°4) of thc floor area of thc Building is taken, and Tenant is
not able to build substitute space at reasonable cost without loss of parking, selling space, storage or a__rces_ s or impainng
x/s~ility of the Building from Edingcr or Del Arno Street. Any dispute under tiffs Section 13.2' may be submitted to
arbitration under Section 14.4.
13.3 Award. If thc Premises are wholly' or partially Condemned, landlord shall be entitled to thc entire av, ard paid for
such-condemnation, and Tenant waives am..' claim to any part of the award from Landlord or thc condemning 'authofit3~
provided, however.' Tenant shall have the fight to recover from thc condcmning authority such compensation as may be
separately awarded to Tenant in connection with costs in removing Tenant's merchandise, furniture, fixtures, leasehold
improvcr~ents and equipment to a new location and. to the extent the same does not dinfinish thc axe,rd available to
Landlord, for loss of business and for the unamortized cost of Tenant's leasehold improvements, calculated' on a straight-
line basis. No condemnat/on of any kind shall be construed to constitute an actual or consuuctivc eviction of Tenant or a
breach of any ex-press or implied covcrnmt of quiet enjoyment.
13.4 Temporary Condemnation. In the event of a temporary condemnation not ex-tending beyond thc Term. this Lease
shall remain in effect. Tenant shall continue to pay Remand 'l~enant shall receive any award made for such condemnation
except damages to any of Landlord's property, ff a temporary condemnation is for a i~riod which extends beyond thc Term.
this Lease shall terminate as of the date o/: initial occupancy, by the condemning authoriD' and any such award shall be
distributed in accordance x,`~ith the preceding section.
] 4. DEFAULT.
14.1 Events of Default. The occurrence of any of the following events shall, at Landlord's option, constitute an "Event of
Default':
14. l. 1 (Inter~tionally ormued.)
14.1.2 Failure to pay Rent on the date when due and the failure continuing for a period of ten (10) days after
Tenant's receipt of v;riuen notice that the same is overdue:
14.1.3 Failure to perform Tenant's covenants and obligations hereunder (except default in the payment of Rent)
,,,,'here such failure continues for a period of thin3.' (30) days after written notice from Landlord; provided, however, if the
nature of the default is such that more than thin5.' (30) day~ are reasonably required for its cure. Tenant shall not be deemed
to be ~n default if Tenant commences the cure -,cuhin the thirty (30) day period and diligently prosecutes such cure ~o
completton;
15.
L R.EAL_EST'x.k4]CROCE~%TUS'F~_CA"LSTL~S'I-~5 ~)OC -~ :6 93 D~.zf~ 08 27;931 ! :55
14.1.4 The making ora general assignment ~, Tenant for thc benefit of creditors: thc filing of a voluntary petition
bx. Tenant or the filing of an involtmtaD' petition by any of Tenant's creditors seeking thc rehabilitation, liquidation or
reorganization of Tenant under any law relating to bankrupts, insolvent3.- or other relief of debtors and. in the case of an
im,'oluntaD' action, the failure to remove or discharge the same within sixty. (60) days of such filing: the appointment of a
receiver or other custodian to uake possession of substantially all of Tenant's as.scm or this leasehold: Tenant's insolvency or.
inability to pay Tenant's debts or failure generally to pa.',' Tenant's debts when duc; any court entering a decree or o['dcr
directing the winding up or liquidation of Tenant or of substantially all of Tenant's assets: Tenant taking any action toward
the dissolution or winding up of Tenant's affairs: or the attachment.' execution or other judicial, seizure of substantially all of
Tenant's assets or this leasehold: '
14.1.5 The making of any material misrepresentation or omission by Tenant or any successor in interest of Tenant
in any materials delivered by or on behalf of Tenant to Landlord or Landlord's lender pursuant to this Lease; provided that
if .the misrepresentation or omission was inadvenent, no Event of Default shall occur if Tenant corrects the
misrepresentation or omission within ten (10) days after demand by Landlord; or
14.1.6 The occurrence of an Event of Default set forth in Section 14.1.4 or 14.1.5 with respecn to any gtmr~tor of
this Lease, if applicable. _ -~
14.2 Remedies.
14.2.1 Termination. In the event of the occurrence of any Evem of Default. Landlord shall have the fight to give a
x~Titlen termination notice Io Tenant and. on the date specified in such notice, this Lease shall terminate unless on or before
such date all arrears of Rent and all other stuns pa)able b2,.' Tenant under this Lease and'all costs and expenses incurred by
or on behaif of Landlord hereunder shall have been paid by Tenant and ali other Events of Default at the time existing shall
have been fully remedied to the satisfaction of Landlord. '
14.2.1.1 Repos.xession. Follox~ing termination, without prejudice to other remedies Landlord.mav have,
Landlord ma.v.(i) peaceably re-enter the Premises upon voluntaD' surrender by Tenant or remove Tenant therefrom ~nd any
other persons occup.ving the Premises, using such legal proceedings as may be available: (ii) repossess the Premises or relet
the Premises or any pan thereof for such term (which ma.,,' be for a term extending beyond the Term), at such rental and
upon such other terms and conditions as Landlord in Landlord's sole discretion shall determine, with the fight to make
reasonable alterations and repairs to the Premise~. and (iii) remove all perso~ property therefrom.
14.2.1 Unpaid Rent. Landlord shall haveall the rights and remedies of a landlord provided by applicable law,
including the fight to recover from Teamnt: (a) the worth, at the time of a,,vard, of the unpaid Rent that'had been earned at
the ume ofterminafiom Co) the worth, at the time of av, m'ck of the amount bv which the unpaid Rent that wotfld have been
earned after the date of termination until the time of axe,rd ex___eeeds the amount of loss of rent that Tenant proves could have
been reasonably avoided. (c) the v,~rth, at the time of ax,`~rd, of the amount by which the unpaid Rent for the balance of the
Term after the time of award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided.
and (d)any other amounL and court costs, mx-ess,aD' to compensate Landlord for all detriment proximately ~aused by
Tenant's default. The phrase 'worth. at the time of av,~rd.", as used in (a) and Co) above, shall be coml~uted at the
Applicable lmerest Rate. and a~ used in (c) abox~, shall be computed by discounting such amount at the discount rate of the
Federal Rese~x,e Bank of San Francisco at the time of ax,`~rd plus one percent (1%).
14.2.2 Continuation. Even though an Event of Default may have occurred, this Lease shall continue in effect for so
long as Landlord does not terminate Tenant's right to possession; and Landlord may enforce all of Landlord's fights and
remedies ,under this Lease. including the fight to recover Rent as it becomes due. Lax{dlord. without terminating this Lease.
.may. during the period Tenant is in default, enter the Prermses and relet the sane. or any pomon thereof, to third parties for
Tenant's account and Tenant shall be liable to Landlord fox all costs Landlord incurs in reletting thc Premises, including.
without limitation, brokers' commissions, expenses of remodeling the Premis~ and like costs. Reletting may be for a period
shorter or longer than the remaining Term. Tenant shall continue to pay the Rent on the date the same is due. No act by
Landlord hereunder, including acts of mainte~nce, preservation or efforts to lease the Premises or the appointment of ~
receiver upon application of Landlerd to protect Landlord's interest under this Lease. shall terminate this Lease unless
Landlord notifies Tenant fha Landlord elects to terminate this Lease. In the event that Landlord elects to relet the
Premiscs. the rent that. Landlord receives from relening shall be applied to the pa.xnnent of, first, any indebtedness from
Tenant to Landlord other than Base Rent and Real Propern' Taxes: second, all costs, including mainienance, incurred by
Landlord in reletting, and. third. Base Rent and Real Pro'peny Taxes under this Lease. After deducting the pa?nents
referred to above, any sum ~maining from the rental Landlord receives from reletting shall be held by Landlord and
applied in pasanent o? furore Rent as Rent becomes due under this Lease. In no event, and nonvithstan&ng an.vthing in
Secuon 14 to the contr~_', sl',all Tenant be entitled to an,,: excess rent received by Landlord. If. on the date Rent is due
under this Lease. the rent receix'ed from the relening is lesi than the Rent due on ~at date. Tenant shall pay to Landlord. in
16.
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addition to the remaining Rent due. all costs, including mainlenance, which Landlord incurred in reletting the Premises
that remain after applying the rent received from releuing as provided hereinabove. So long as this Lease is not lerminaled.
Landlord shall have the righl to remedy any defaull of Tenant. to maintain or improve the Premises. to cause a receiver lo
be appomled lo administer the Premises and nov or e.~sting subleases and Io add to the Rent payable hereunder all of
Landlord's reasonable costs in so doing, with inIcre~ al the Applicable Interest Rate from the date of such expenditure.
14.3 Cumulative. Each right and remedy of Landlord or Tenant provided for herein or now or hereafter e~dsting al la,v,
in equity, by statute or otherwise shall be cumulative and shall not preclude Landlord or Tenant from exercising any other .
rights or remedies provided for in this Lease or now or hereafter existing at law or in equity, by slatute or otherwise, except
to the extent expressly waived by any provision of this Lease. No payment of a lesser amount than the Rent nor any
endorsement on any check or letter accompanying any check or payment as Rent (or as any amount due Tenant under this
Lease) shall be deemed an accord and satisfaction of full payment of Rent (or such amount due); and the party, receiving the
same may a_oc~_~pt such payment without prejudice to thc recipient's right to recover the balance of such Rent or other amount
or to pursue other remedies.
14.4 ARBITRATION OF DISPUTES.
14.4.1' DISPUTED DEFAULTS. l~ THE EVENT THAT TENANT DISPUTES WHETHER OR NOT TENANT MUST CUR~ AN
ALLEGED DEFAULT UNDER THIS LEASE AFTER BEING SERVED BY LANDLORD MtlTH A NOTICE OF DEFAULT, TENANT MAY
SUBMIT THE MATTER TO BINDING ARBITRATION AS SET FORTH BELOW, BUT SUBMISSION TO ARBITRATION SHALL NOT
SUSPEND TEN~'r's DUTY TO COMMENCE CURE OF THE DEFAULT.' IN THE EVENT THAT THE ARBITRATION RESULTS IN A
FINDING THAT TENA~,'r IS NOT REQtnR~D' TO Ct'RE TitE ALLF. GED DEFAULT, TENANT SHALL BE ENTITLED TO
REIMBURSEMENT FROM LANDLORD FOR COSTS INCURRED BY TENANT IN CURING OR COMMENCING TO CUR~ THE
ALLEGED DEFAULT.
14.4.2 DISPLrrED REIMBURSEMENT. I,N THE E%TA~'T LANDLORD DISPUTES ANY DEMAND FOR REIMBURSEME,'~I' OR
REFUND BY TENAHT, LANDLORD MAY %,TrHIN 30 DAYS AFTER RECEIPT OF TENANT'S DEMAND FOR PAYMENT SERVE A
NOTICE ON TENANT THAT LANDLORD iS SuBMrr'I'~G THE MATTER TO BINDINGARBITRATION, AS SET FORTH BELOW.
14.4.3 .ARBITRATORS..dt.",,'Y DISAGR.EEJktENT OR CONTROV'E. RSY DES4Z:I?dBF. D IN SEC'rlON 14.4.2, 14.4.3, OR
ELSEWHERE IN T-~IS LEASE, MAY BE SETTLED BY BINDING ARBITRATION TO BE HELD, AND THE AWARD MADE, IN ORANGE
CoUNTY, CALIFORmA, PURSUANT TO THE THEN-AI, PMCAm.E RULES OF THE AMF. mCAN AR~rrRATION ASSOC~TIO,~. IN
ANY SUCH ARBITRATION, THE ARBITRATOR SHALL BE: (A) ANY PERSON SE~ BY THE PARTIES TO THE DISPUTE, IF
THEY ARE ABLE TO SO AGREE '6TFHIN 10 DAYS AFTER AN~' PARTY REQUESYS THE OTHER TO SO AGREE, IF NOT, (B) A
THREE-MEMBER ARBITRATION PANEL, %%~IICH SHALL ACT BY MAJORITY VOTE AND WHICH SHALL CONSIST OF ONE
MEMBER SELECTED BY EACH PARTY TO THE DISPUTE AND ONE MEMBER SELECTED BY THE TWO MEMBERS'SO SELECTED,
WItO SHALL ACT AS CHAIRMAN OF THE ARBITRATION PANEL. IF THE FIRST TWO ARBITRATORS ARE UNABLE TO AGREE ON
THE SELECTION OF THE THIRD ARBITRATOR WITHIN 20 DAYS AFFER THEIR APPOINTMENT, THE THIRD ARBITRATOR SHALL
BE SELECTED BY THE AMERICAN ARBITRATION ASSOCIATION. IF ONE PARTY REQ~S THE OTHER TO AGREE ON A
SINGLE ARBITRATOR AND THE PARTIES HA%~ FAILED TO AGREE ON SUCH A SINGLE ARBITRATOR, AND ONE OF THE PARTIES
THEREAFTER SHALL FAIL OR REFUSE TO APPOU%T A PERSON TO THE ARBITRATION PANEL U~DER C-3.AUSE (B) ABO%~ WITHIN
20 DAYS AFTER THE ORIGINAl. REQUEST FOR AGREEME.%T ON A SINGLE ARBITRATOR WAS MADE, THE ARBITRATION
SHALL CONSIST SOLELY OF THE SINGLE ARBITRATOR SELECTED BY THE OTHER PARTY.
14.4.4 FAILURE TO APPEAR. IF ONE OF THE PARTIES SHALL FAIL OR REFUSE TO APPEAR OR TO PRESENT EVIDENCE
AT THE ARBITRATION HEARING~ THE ARBITRATOR(S) SHALL BE AUTHORIZED TO ACCEPT THE EVIDENCE PRESENTED BY
THE PYLRTY IN ATTF~NDANCE AT THE HEARING AND ENTER AN AWARD BASED ON THE EVIDENCE PRESENTED. ANY COSTS OF
ARBITRATION SHALL BE BORNE BY THE PARTY AGAINST ,%TIOM THE AWARD IS MADE, INCLUDING BUT NOT LIMITED TO THE
FEES OF THE ARBITRATORS.
14.4.$ REI.MBURSEMENT. TENANT .~tAV REIMBURSE ITSELF WITH RESPECT TO A~N'Y MATTER DESCRIBED IN
SECTION 14.4.2 AS FOLLOWS. LANDLORD'S FAILURE TO SERVE A DF. MAJ~D FOR ARBITRATION WTrHIN THE PERIOD
DESCRIBED IN SEC'TION 14.4.2 SHALL BE DEEMED A WAi%'ER OF AI~' OI~rECTION TO TENAN"r'S DEMAND, AND TENANT, IF
NOT REIMBURSED BY LANDLORD, WIAY REI.~IBUILSE ITSELF FROM, AND TENANT SHALL BE ENTITLED TO A CORRESPONDING
CREDIT AGAINST, SUCCEEDING RENT AND OTHER CHARGES, ~3TH INTEREST AT THE APPLICABLE INTEREST RATE FROM
THE 10TH DAY AFTER TENANT'S INITIAL DEMAND. ]LF LANDLORD TIMELY DEMANDS ARBITRATION AS SET FORTH IN
SECTION 14.4.2. TF..X,~N"r SHALL NOT REIMBURSE ITSELF PENDING A,VARD OF THE ARBITRATOR(S). IF AJ~' AMOUNT
AWARDED TENANT IN THE ARBITRATION IS NOT PAID BY LANDLORD V, TrHIN TEN (10) DAYS FROM THE DATE OF AWARD,
,VITH INTEREST FROM THE DATE OF Tile AWARD, TENANT MAY THEREAFTER REIMBURSE XTSELF FRO.M, AND TENA.\"r
SHALL BE ENTITLED TO A CORRESPONDING CREDIT AGAINST, SUCCEEDING RENT A.ND OTHER CHARGES, ~3TH INTEREST AT
THE APPLIC,LBLE L'~'TEREST RATE FROM Tile DATE OF THE AWARD. Lc AJ~'Y AMOUNT AV~'ARDED LANDLORD IN THE
1'/.
L :,I:LF--,AL_Fc-.ST~.\flCROCE.",'~TUST~_CA~,LSTUST~S DOC g,'26;9~ l)r~fi 08~7/9311 55 AM
ARBITRATION IS NOT PAID BY TENANT ~%TrHIN TEN (10) DAYS FROM THE DATE OF THE AWARD, WITH INTERES'I' AT THE
APPLICABLE IN'rEREST RATE FROM THE DATE OF THE A~,'ARD, LANDLO~ MAY RESORT TO THE RE.MEDIES SET FORTH IN
THIS LEASE Vs'TrHOUT FURTHER NOTICEs AS IF NO GRACE PERIOD EVER EXISTED. '
14.4.6 _Co,~SENTS~ OTHER IVL~TT£RS. IF TENANT BELIEVES THAT LANDLORD HAS UNREASONABLY WITHHELD
ANY CONSENT OR APPROVAL REQUIRED TO BE OBTAINED BY THIS LE~SE, TENA~I' AT ITS OPTION MAY (BUT SHALL NOT BE
R~gQUIRED TO) SUBMrr THE REASONABLENESS OF LANDLORD'S REFUSAL TO ARBITRATION AS SET FORTH ABOVE. L~ THIS
LEASE SPECIFICALLY PROVIDES FOR ARBITRATION OF AJ~'Y OTHER DISPUTE, EITHER PART~° MAY DEMAND ARBITRATION OF'
SUCH DISPUTE.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREELNG TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS
INCLUDED _IN THE "ARBITRATION OF DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW' AND YOU ARE GI~'ING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT
OR .fURY TRIAL BY INITIALING IN THE SPACE BELOW YOU ARE GMNG UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND
APFEAL~ UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVXSION. IF YOU
REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPILED TO ARBITRATE
UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CI~'IL PROCEDURE. YOUR AGREEMF~ TO THXS ARBITRATION
PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISIN~ OUT OF THE MAII'ERS
INCLUDED IN THE **ARBITRATION OF DISPUTES** PRO,qSION TO NEUTRAL ARBITRATION.
15. ASSIGNMENT AND SUBLETTING. '
15.1. Consent Required. Except as provided below, Tenant shall not assign, sublet or otherwise transfer, whether
voluntarily or involuntarily or bx' operation of law. the Premises or any part thereof without Landlord's prior written
approval, which shall not be unreasonably withheld. Any purported assignment or subletting contras, to the provisions
hereof shall be void and shall constitute an Event of Default hereunder. It shall not be reasonable for Landlord to withhold
its consent to a proposed assignment or subletting unle~ Landlord reasonably and in good faith determines any of the
following situations e.X/sts or may exist:
·
(i) the proposed assignees or sublessee's intended usc of the Premises is not operation as a retail store., or is
for any of the uses prohibited by Exhibit E. or_conflicts with any provision 'of the Lease other than the definition of
'Permitted Use"; or
(ii) Tenant's net worth as of thc date of Tenant's request for consent (as certified by a certified public
accountant and prepared ,,~thin a reasonable time before the request for consent) is less than Tenant's net worth as of the
date hereof, being $16,000.000.00 ("Tenant's Base Net Worth"), computed without regard to changes in the Consumer Price
Index (defined below), but no objection shall be made under this clause (ii) so long as the act worth of the proposed
assignee or sublessee as of the date of Tenant's request for consent (as certified by a certified public accountant and prepared
x~lthin a reasonable time before the request for consent) is not less than Tenant's Base Net Worth. increased or decreased in
proportion Io the percerstage change in the Consumer Price Index..All Urban Censumers (C.P.I.-U),. U.S. C'-'w Average..tall-
Items Indexed (1982-84=100)'most recently available as of the date hereof and .such index as rno~"~ rccentls: available as of
the dine of Tenant's request: or
(iii) the proposed assign~.or'sublessee lacks sufficient business experience Io conducl on the Premises a
business of a ~'pe and quali~' at least equal to that conducted by Tenant. il being agreed that at least three years experience
in the operation of at least two s~ores shall be deemed sufficient: or
(iv) the proposed assignment or subletting would' (A) breach a covenant, condition or restriction in some
other lease relating to the Premises. the Building or the Lease. or would (13) breach a covenant, condition or resmction in a
bona fide mortgage or financing agreement with an independent third part}.' mortgagee or lender that is not controlled by. in
control of or under common control with Landlord. relating to the Premises. the Building or the Lease. and Landlord. after
reasonable efforts (at Tenant's expense) has been unable to obtain the necessan' consent: or
18.
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(v) the proposed a~gnee or sublessee (Al has been required b.v any prior landlord, lender or governmental
authori~' to lake remedial action in connection with H:aTnrdous Malerials contaminating a property, if such contanunation
xx~s other than de minimns and resulled from the proposed a.~gnee or sublessee's actions or use of the property in question.
or CB) is subject to any enforcemetu order issued by any _~x)venunental authori .ty in connection with the use, disposal or
storage ofa Hn_Tsrdous Material and resulting from the acts or omissions of the proposed assignee or sublessee; or
(vi) the proposed assignee or sublessee at any time during the 10 years immediately prong Tenant's
request has been generally unable to pa)' its debts or futfitl its obligations when owing, has been declared insolvent or has .
filed for bankruptcy protection~ or
(vii) the proposed assignment or sublease ~ld result in additional signage or parking requirements for the
Premises. unless reasonable assurance is given that a ~iver or variance has been or will be obtained; or
(viii) an Event of Def~t has occurred and is continuing under this Lease at the time of Tenant's request .for
Landlord's consent, or as of the effective date of such assigxtmenl or subletting.
An)' notice of disapproval must include a statement of reasons for Landlord's disapproval.
15.2. Notice to Landlord; Eie~ion to Terminate. If Tenant desires to assign this Lease or sublet any or all of the
Premises, except as ~o transactions pennitled by. Section 15.4 below. Tenam shall give Landlord written notice thereof with
copies of all related documents and agreements associated ssith the assignment or sublease, including without limitation, the
financial statements of any proposed assignee or subtenant, forty-five (45) days prior to the anticipated effective date of the
assigmnent or sublease. Landlord shall have a period of thtrty. (30) days following receipt of such notice and all related
docoments and agreements to notify Tenant in %silting (a "l'et~irmtion Notice") of Landlord's apprOval or disapprox~l of
the proposed assigttment or sublease, or to no~.- Tenant ttmt Landlord elects to terminate the Lease (or. in the case of a
sublease of less than the entire Premises. to amend thc Lease so as to dcletc from the Premises that portion proposed to be
sublet, in which event the Rent shall be prorated based on the ratio of the floor area. of such portion to the total floor area.of
thc Premises pnor to such amendment), in which event thc Lease shall terminate (or be so amended) as of the date set forth
in Landlord's notice, which shall be not less than 30 nor more than 60 days from the date of lhe notice, as though such date
were thc date fixed for the expiratioa of thc Term. Tenant may nullify the Termination Notice, at any time within five (5)
business days after-Tenant receives thc Termination Noti~':, by notifying Landlord. in writing that Tenant withdraw~ its
intent to assign or subleL If Landlord fails to give thc Termination Notice. Landlord will not um'easonably withhold its
consent to an assigmnent of the Lea~ ~' Tenant or a sublease of thc Premises (or the portion thereof described in Tenant's
notice), determined in accordance with the criteria set forth in Section 15.1 above.
15.3. No Release. Landlord may. without x~iving axty rights or remedies, collect rent from the assignee, subtenant
or occupant and apply the net amoum collected to the Rent. Tenant shall continue to be liable as a princip'al and not as a
guarantor or surety to the same extent as though no assigttment Or subletting had been made. Landlord ma), conscnz to
subsequent assignments or subletting of this Lease or amendments or modifications to the Lease by assignees of Tenant
without notifying Tenant or any successor of Tenant and without obtaining their consent. No permitted transfer shall be
e. ffective until there has been delivered to Landlord a coum,*rpart of the transfer instrument in which thc transferee agrees
(a) in the case of an assignment, to be and remain jointly and severally liable with Tenant for thc payment of Rent per-
taining to the Premises and for the performance of all thc terms and provisions of this Lease relating thereto arising on or
after thc date of thc transfer, or ~) in the case of a subleas~ that the covenants of the sublease shall be for thc benefit of,'
and may be enforced by. Landlord.
15.4. Permitted Transactions. Notxx'ithstanding any other provision of this Lease, in consideration for thc
res'trictions on change of usc se~ forth in Section I0. I. Land~orci agrees *~hat:
(a) Tenant shall be permitted without Landlord's consent to assign or transfer the Lease or sublet the Premises. to a
corporation or entity that assumes all of Tenmnt's obligauon(; and either (i) controls, is controlled by, or under common
control with Tenant. but an',' assignment or transfer ~o a suosidia.rv or other affiliate shall be permitted for only so long as
such company remains, a su~)sidia~.' o.,' other affiliate of Tenant or of Micro lElec~romcs Holdings. Inc. Tenant shall not use
this right to deliberately reduce the financial recourse available ~o Landlord. (ii) merges or consolidates %~4th Tenant. (iii)
acquires a substantial portion of the assets or stock of Tenant. or (iv) acqmres a substantial portion of the assets of Tenant at
the Premises.
Co) A transfer of stock among exisung shareholders, of Tenant or to members of their individual family whether by
g~ or dex~se or by means of an inter Ox'os or ~estamen,~.~' u'ust, or to employees, shall not be prohibited and shall no~
require Landlord's consent, nor shall a public offering or sale of aav or all of Tenant's stock (whether or not through an
under~x~ter, investment banker, or similar imermedian.') ttrrough a national securities exchange, or over the coumer, be
prohibited or restricted.
!9.
L' R.EAL_EST~kflCROCEN'XTUSTN_CA~LSTL'STN-~ ,DOC $ '26 ~)3 L":. ~fi 08.'2_ 7/93
(c) The granting by Tenant of licenses to operate departments within the Premises shall not be considered an
assignment or subletting and shall not require Landlord's consent, provided that the business conducted by the licensees is
permitted under this Lease. and the licensees do not hold themselves out to the public as individual tenants in advertisin, g or
· othenvise.
(d) Landlord's right under Section 15.2 to elect to terminate this Lease shall not apply to any transaction permitted
by this Section 15.4. ·
15.5 Outside Transfers.
15.5.1 Any assignment, subletting, or other transfer of this Lease. the Premises or Tenant's interest in thc Lease or
the Premises. shall be deemed an 'Outside Transfer", except the following:
(1) a transaction permitted by virtue of Sex:tion 15.4(a)(i), 15.4(a)(ii), 15.4(b), or 15.4(c);
(2) a transaction in which there is continuity ofmanagement, as described in Section 15.5.3:
'" (3) a transaction as to which Landlord does not exercise its election under Section 15.5.2 which election, in
the case of an assignment subletting or other transfer for the Permitted Use described in the Basic Lease Information shall
not be unreasonably exercised, based on the standards set forth' in Section 15.1 (excluding Section 15(iv)(B);
(4) the first assignment, subletting or other transfer ~- Tenant. its successors, and assigns, other than a
transaction described in claUSes (1) through (3) of this Section 15.5.1: or
...
(5) the second assignment, subletting or other.transfer bi,.' Tenant. its-successors or assigns, other than a
transaction described in Clauses (1) through (3) of this Section 15.5.1, except that such second transaction shall not be an
Outside Transfer if the transaction is one which Landlord ~xmld be unreasonable in objecting to under the criteria set forth
in Section 15.1 (excluding Section 15(iv)(B).
15.5.2 If an Outside Transfer occurs. Landlord may elect to terminate Tenant's right to exercise the option in
Section 2.3.1 as to an.v future Renewal Terms. but this Lease shall nonetheless continue in full force and effect as to any
Renewal Terms-for which Tenant shall have given notice of exercise prior to the effective date of the Outside Transfer.
Landlord max, exercise the election only bv ,*xitten notice to Tenant. Any such notice must be given within the time set
forth in this Section 15.5.2. In the case of an assignment, subletting or other transfer to which Landlord's consent is
required. Landlord's noticeOf election must be given ~' the earlier of the date Landlord notifies Tenant of its' consent to the
proposed transaction or 30 days after Tenant requests Landlord'S consent to the transaction. In the case of an assignment.
subletting or other transfer to which Landlord's consent is not required. Landlord's notice of election must be given -~-ithin
30 days after Tenant notifies Landlord of the transaction.
15.5.3 . For purposes of Section 15.5.1. continuity of management shall occur if, immediately following the
assignment, subletting or other transfer. 51% of the manage, me~l employees employed by Tenant at the Prermses
immediately prior to the transaction are employed as management empio.vees with respect to the Premises. or 51% of the
management employees employed by Tenant (regardless of where employed) immediately prior to the transaction are
employed by the transferee as management employees. Management employees shall be deemed to include any person ,,4th
the term "manager" in his or her job title, and any person holding any higher position or office in Tenant.
15.5.4 Nothing in this Lease shall be deemed to prohibit Tenant from entering into any Outside Transfer, subject
only to the provisions of Sections 15.1 and 15.2.
16. ESTOPPEL, ATT. O1RNMEN'F AND SUBORDINATION. ·
16.1 Estoppel. Witlfin ten (10) days after request by Landlord. Tenant shall deliver an estoppel certificate duly executed
(and acknov,'ledged ff required by any lender), to any proposed mortgagee, purchaser or LandlorcL, setting ibrth such
information as to the Lease. any amendments thereof, option terms, the date to which Rent has been paid. and other matters
concerning the Lease and Tenint's rights in and to the Premises. as the proposed mortgagee, purchaser or Landlord shall
reasonably request. Tenant shall not be required to agree to or sign any pan of such certificate that attempts to make an5'
Material ~2hange (as defined in Section 16.4) in this Lease. Tenant's failure to deliver said statement within ten (!0) days
after notice from Landlord that the first ten (10) day period has expired shall be an Event of Default hereunder and shall be
conclusive upon Tenant that (a) this Lease is in full force and effect, without modification except as may be represented by
20.
L REAL_ES'D.\flCROCEN~TUSTN_CA~LSTUSTN5 DOC 8;2693 Dra. fi 08.27.'9311 55
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Landlord: Co) there are no uncured defaults in Landlord's performance and Tenant has no right of offset, counterclaim or
d~luction against Rcm hereunder, and (c) no more than one month's Base Rent has been paid in advance.
16.2 Subordination. This Lease shall bc subject and subordinate to ail ground leases and thc lien of all mortgages and
deeds of trust which now or hereafter affect,thc Prenuses or the Project or Landlord's interest therein, and all amendments
· thereto, all without the necessi .ty of Tenant's executing further instruments to effect such subordination, provided that the
holder of any such ground lease., mortgage or deed of trust agrees in writing to recognize Tenant's fights under this Lease
and that Tenant's rights hereunder shall not be disuubed, so long as no Event of Default shall exist and be continuing.
Tenant acknowledges that such .agreement may contain other provisions typical of non=disturbance and attomment
agreements. Landlord.agrees to use the following efforts to obtain for Tenant a non-disturbance agreement substanually on
tbe terms of E.xlfibit H attached hereto: Landlord will tender thc form of Exhibit H lo thc proposed Mortgagee (as defined
in __c,:c*_ion 17.2), inform such pan), that Tenant has requested a non-disturbance agreement in substantially that form, and
refer such party, to Tenant and its counsel. If requested, Tenant shall execute and deliver to Landlord within ten (10) days
after Landlord's request whatever documentation that may reasonably be required to further effect the provisions of this
paragraph, provided that the same does not attempt m make any Material. Change in the provisions of this Lease. Landlord
warrants and represents, that. as of the date hereof there are no ground leases, mortgages or deeds of u'ust affecting the
Premises, and covenants that thercshall be none until after the possession has been delivered to Tenant.
- 16.3 AttornmcnC In thc event of a foreclosure proceeding, thc exercise of thc power of sale under any mortgage or deed
of trust or thc termination of a ground lease, Tcnam shall, if requested, attom to thc purchaser thereupon and recognize
such purchaser as Landlord under this Lease: provided, ho~. Tenant's obligation to attorn to such purchas,~ shall bc
conditioned upon Tenant's receipt of a non-di~ agr~mcnt.
16.4 Material Change. For purposes of Sections 10.1. 16.1 and 16.2. a proposed change to this Lease shall be deemed a
"Material Change" if the proposed change would: affect the size. dimension, location, visibility of or access to the Premises:
or increase the Rent or other sums to be paid by Tenant hereunder', or increase the risk of liability or loss to Tenant; or
materially affect any right or obligation of Tenant hereunder (it being agreed, for example, that a rex~uest for thc s~nding of
additional copies of notices or minor changes to the notice periods provided with resp~ to notices to. be furmshed ~,
Tenant shall not be deemed material change in Tenant's fights or obligations).
17. DEFAULT BY LANDLORD.
17.1 Notice to Landlord. Any amounts pa.~ablc by Landlord t° Tenant shall be duc within twen .ty (20) days after demand
by. Tenant. unless this Lease expressly sets forth a different time for payment. After expiration of the applicable time,
Tenant may send notice under Section 3.2 that thc amount-is overdue. Landlord. shall not be in default under this Lease'
unless Landlord fails to make such payment within Ix,.~:nty (20) days (or such longer time as ma,,, be expressly s,.~ forth in
this Lease) after Tenant's initial demand therefor, or fails to perform any other obligation required of Lan'dlord within a
reasonable time. but in no event later than twenLy (20) business days after written notice by Tenant to Landlord and to each
Mortgagee (defined below), specifyi.'ng the nature of thc alleged default; provided, however, that ii' the na ,tur~ of thc
obligation is such that more than lxx~nt3.' (20) business da~ arc required for performance, then Landlord shall not be in
default if Landlord commences performance vdthin such twenty-day period and thereafter diligently prosecutes the same to
completion. Amounts payable bx' Landlord ma.,,, be delinquent under Section 3.2. and therefore subject to int~-,~-t at thc
Appli.cable Interest Rate. whether or not Landlord is then in default.
17.2 Notice to Mongagees. Tenant agrees to give each lender or mortgagee or trust deed holdcr of whom Tenant has
notice ("Mongagee"). b.v registered mail. a copy of any notice of default served upon Landlord, prm-ided that Tenant has
been previously notified in ,,,.xiting of thc address of such Mortgagee. Tenant further agrees that if Landlord fails to cure
such dcfau]~ ,.,,id--in thc time provided for in this Lease. then thc Mortgagees shall have an additional II'dr:v (30) d~-~.'s within
whic.h to cure such default,, or il' such default casmot' reasonably be cured within that time. then such additional time as may
be. neccssaD.- ff. vdthh-..said 30-day period, an.',' Mortgagee has ~:ommenced and is diligently pursuing thc remedi~ necessar;,'
to cure the dcfauh (including but not limited to commencement of foreclosure proceedings if t,ec'essa~- to cffeci _¢.:¢h cure~.
in which event this Lease shall not be terminated while such remedies arc being so diligently pursued.
17.3 No Waiver. Nothing in Sections 17.1 or 17.2 is intended to waive or abridge Tenant's rights under Se_-uons 8.1.
11.5 or 14.4
21.
L ',RE.AL_EST'.,\flCROCEN'.TUSTN_CA'£STUSTN5 DOC 8 '26 93 Draft O~ '27,93l 1:55 AM
18. IvflSCELLANEOUS.
18.1 General.
18.1.1 Entire Agreement. Tlxis Lease sets forth all the agreements between l~ndJord and Tenant concerning the
Premises; and there are no agreements either oral or written other than as set forth herein.
18.1.2 Time of Essence; Commencement of Cure. Time is of the essence of this Lease. Whenever any provision of'
this Lease requires either part)., to commence the cure of any default or to commence any repair, maintenance~ alteration or
other work, within a given period of time. a party, shall be deemed to have commenced ge required action if in preparation
for such action, the party in good faith has taken any or all of the following actions in Preparation for the performance of
the required work or other action: preparation of plans or architectural or engineering studies; arranging for contractors or
laborerr, ordering materials and supplies: applying or preparing applications for any necessary, governmental, permits:
preparation or filing of notices of commencement: or consulting with architects, engineers, cormmction mangers or legal
counsel for the purpose of any of the foregoing.
18.1.3 Attorneys' Fees. In an)' action or 'proceeding which either part3.' brings against the other: to enforce its fights
hereunder, the unsuccessful party, shall pay all costs incurred by the prevailing pan); including reasonable attorne~' fees.
which amounts shall be a part of the judgment in ~aid action or proceeding. '
·
- 18.1.4 Severabilitv. Il'any pro~sion ofthis Lease or the application ofan.v such pro~4sion shall be 'held by a court
of competent j~ ~ be invalid, void or unenforceable to any extent, the remaining provisions of this Leas~ and the
application thereof shall remain in full force and effect and shall noi be affected, impaired or invalidated.
18~1.5 Law. This. Lease shall be construed and enforced in accordance -,~ith the la~'`~ of the state in ''vtuch the
Premises are located.
18.1.6 No Option. Submission of this Lease to Tenant for examination or negotiation does not con_~tute an option
tO lease, offer to lease or a reservation of. or option for. the Premises: and this document shall become effective and binding
only upon the execution and delivery hereof by Landlord and Tenant.
-18,1.7 SuCCessors and Assigns. This Lease shall be binding upon and inure to the benefit of the successors and
assigns of Landlord and. subject to compliance with the terms of Section 15. Tenant.
18.1.8 Third Pare,, Beneficiaries. Nothing herein is intended to create any third part3.' benefit.
18.1.9 Memorandum of Lease. This Lease shall not be recorded. Landlord and Tenant ,,,,'iii. at 'the request of
either, enter into a short form memorandum of lease, in recordable form reasonably acceptable to Landlord. As a condition
to executing a memorandum of Lease. Landlord ma5' require Tenant to execute an~! deliver a quit-claim deed. in recor~ble
form reasonably saris/actory to Landlord. releasing tO Landlord any and all of Tenant's rights in and to the Premises
(exclusive of any rights Pursuant to any judgment or judgment lien 6brained ~, Tenant), which quit-claim deed Landlord
hereby covenants not to tmns/er, record or publish until the expiration or sooner termination of this Lease.
18.1.10 Agency, Partnership or Joint Venture. Nothing contained herein nor any acts of the parti~ hereto shall be
deemed or construed by the parties hereto, nor by any third part).', as creating the relationship of principal and agent or of
partnership or of joint venture by the parties hereto or any relationship other than the relationship of landlord and tenant.
18.1.1! M.__er~er. The volunmn' or other surrender of this Lease by Tenant or a mutuai ~ncellaficn thereef or a
termination by Landlord shall not v,'o~'k a merger and shall, at the optit~n of Landlord. terminate al: or any' ex, sung
subtenancies Or ma.-,', at the option of Landlord. operate as an assignment to Landlord of an.',' or all of such subtena~cies.
18.1.12 Headings: Interpretation. Section headings have been inserted solely as a maner of convemence and are
not intended to define or [imJ! the scope of any of the provisions contained therein. E'.xcep~ as othens~se sta~.-d (i) "hereof''.
"hereunder" or similar terms, without reference to a specific section or subdivision of this Lease. refer to this Lease as a
:,,'hole: and (ii) references to a section or subdivision of this Lease are intended to include all ~ubdi','is,ons or subparagraphs
of the referenced section 'or subdi~,4sion. Whenever in this Lease any printed portion has been stricken out. whether or not
any relative prox4sion has been added, this Lease shall be construed as if the material so stricken x'`~s never included herein
and no inference shall be drawn from the material so stricken out which would be inconsistent in anx wav with the
construction or interpretation which would be appropriate ffsuch material ,,,,'ere never conta,ned herein. TI~: Le~se is to be
deemed to have been prepared jointly by the parties hereto and any uncertainty or ambiguit2,.' e~sting here:~ ff an3'. shall
22.
L REAL_EST~flCROCEN',TUSTN_CA LSTL'STN5 DOC 8:26'93 Draft 08,'2.7'9311 '55
not be interpreted against any part).', but shall be interpreted according, to the: application of the rules of interpretation for
arm's-length agreements.
18.2 SJ~_n.._~s
18.2.1 Landlord's Consent.. All signs and graphics of every kind visible in or from public view or the exterior of
the Premises shall .be subject to Landlord's prior wrinen approx~al, which shall not be unreasonably withheld., and shall be
subject to an), applicable governmental la~. ordinances, and regulations and in compliance with Landlord's signagc .
program. Tenant shall remove all such signs and graphics (including those describ~ in Sections 18.2.2 and 18.2.3 below)
prior to the termination of. this Lease. Such installations and removals shall be made in such manner as to avoid injury or
defacement of the Premises: and Tenant shall repair any damage caused by such ix~'tallation or removal, landlord shall
cooperate ~4th TenanL at Tenant's expense, in obtaining any necessary governmental permits and licenses for Tenant's
signs. Landlord hereby approves Tenant's sign drawings as shown on Exhibit I.
18.2.2. Pylon Si~.s; Nurservland Sign. Tenant shall have th~ rigl~t, subjea to .applicable law, to maintain a pylon
sign on the Prem/ses, Landlord's-consent to which shall not be um'easonably w/fl~eld. A pylon sign (thc 'Nurseryland
· Sign') currently exists on the properly owned b.v Landlord adjacent to the Premises and now occupied by Landlord's lessee
('Nurseryland') as a NurseD'land store. The lease for the NurseD'land store/s ~heduled to expire August 31, 1993. Upon
expiration of the Nurseryland lease. Tenant shall have the fight to move the Nurse~.'hnd Sign onto the Premises, subject to
any right of Nursery. land or any sign company leasing the Nurseryland Sign to Nurseryland to remove the same from the
Nurseryland property. If the NurseD'land Sign is oxv~ed by an.vone other than Nurso3'land and Tenant is not able to come
to an agreement ~ith the owner of the Nurseryland Sign. Landlord shall execute ami deliver to Tenant an entry, permit to
Tenant to enter onto the Nurse, land property to remo`,'e the Nursery. land Sign, at Tenant's sole expense and liability, and
shall permit Tenant to install a comparable pylon sign on the Premises. subject only to the provisions of Section 18.2.1. If
the Nurservland'Sign is abandoned ~, Nurseryland. Landlord shall permit Tenant to enter onto the NurseD, land property to
move the l~urseryland Sign onto thc Premises, at Tenant's sole expense.
18.2.3. ProjeCt Pylon Signs. If one' or more pylon signs are erected at any time identifying the Project, and if the
pylon signs identify any individual tenants' or occupants of thc Project. Tenant shall have the right-to install and maintain
its signs on each of the Project's pylons now or hereafter existing.: Landlord agrees that. except for signs identifying the
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5
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Project as a whole. Tenant's signs thereon shall occupy one of the three wp positions on the pylon and be as large or larger
than any other sign on the pylon. Sign casings for such signs shall be installed by Landlord, at Laadlord's expe~. Tenant
shall maintain in: good condition its oxvn sign installed on the pylon. Landlord shall be responsible for the maintenance of
the pylon itself and the furnishing of electrical service thereto, and shall cause the owners of an.-,' other signs thereon to
maintain them in good condition. -
18.3 Waiver. No waiver of any default or breach hereunder shall be implied from any omission ~o take action on account
thereof, noc~~ding any custom and practice.or course of dealing. No waiver by. either party, of any prox4sion under
this Lease shall be effective unless in .v, xiting and signed by such party. No waiver shall affect any default other than the
default specified in the waiver and then such ,aaiver shall be operative only for the time and ~o the extent there~n stated.
Waivers of any cxn,,enant shall not be construed as a waiver of any subsequent breach of the same.
18.4 Financial Statements. Tenant shall provide to any lender, purchaser'or Landlord. within ten (10) days after request.
a current, accurate, certified financial statement for Tenant and Tenant's business prepared under generally accepted
accounting principles consistently applied and such other certified financial information or tax returns as may be 'reasonably
reqmred by Landlord. purchaser or m~y lender of either, provided that the recipiem shall agree in writing, enforceabic by
Tenant, to treat such information as confidential, and no~ to disclose the same except as may be required bv law.
·
18.5 Limitation of Liability. The obligations of Landlord under this Lease are not personal obligations of the individual
partners, ctirec~ors, officers, shareholders, agents or employees of Landlord: and. except for am' failure of Lan~ord to pay
the Construction Allowance and all interest, ii an3', accrued thereon. Tenant shall look solely to ~he Premises for satisfaction
of any habilitv of Landlord and shall not look to other assets of Landlord (so long as Landlord remains the oxy"her of the
Prerr~ses~ no~ seek recourse against the assets of the individual partners, directors, officers, shareholders, agents or
employees of Landlord. Whenever Landlord transfers its interest in a bona fide transaction to a third party not controlled by
or under common control with Landlord. Landlord shall be automatically released from further performance under this
Lease and from all further liabilities and expenses hereunder Cout not from pas~ or act. rued obligations) and the tranderee of
Landlord's interest shall assume all liabilities and obligations of Landlord hereunder from the dale of such transfer, but
subject to all of Tenant's fights under this Lease. Landlord agrees not to transfer ns interest in the Premises, other than
transfers by way of mortgage, deed of true. ground lease, sale/leaseback, or similar financing tran~ction whereby Landlord
23.
' J~EAZ._ES .-?-fiCRC~'-'~_.~,RTUS'I'N_CA~LSTUS'I-N5.~ 8 '26'93 Drkfl 08/27;9311.55 A_M
retains beneficial ownership ofthe Premises. until after the Construction Allowance (with interest, ifa_nv and late charge, ff
an3') has been paid to Tenant.
18.6 Notices. All notices to be given hereunder shall be in ~aiting and mailed postage prepaid by certified or registered
mail, return receipt requested, or delivered bx' personal or courier delivery., or sent by. facsimile (immediately followed by
one of the preceding methods), to Landlord's Address and Tenant's Address, or to such other place as Landlord or Tenant
may designate in a written notice given to the other party.. Notices shall be deemed served upon receipt of (or refusal of
delivery, as indicated by the return receipt), except that notice by Tenant of the exercise of an option for a-Renewal Term
shall be effective when sent by Tenant via overnight courier.
18.7 Brokerage Commission. LandlOrd shall pay a brokerage commission to Broker in accordance with a separate
agreement bet~en Landlord and Broker. Tenant x~nurants to Landlord' that Tenant's sole contact with Landlord or with the
Premises in connection with this transaction has been directly with Landlord and Broker, and that no other broker or finder
can properly claim a right to a commission or a finder's fee based upon contacts between the claimant and Tenant. Tenant
agrees to indemnify and hold Landlord harmless from an.v claims or liability, including reasonable attorneys' fees, in
connection with a claim by any person for a real estate broker's commi. 'ssio~ finders fee or other compensation based upon
any statement, representation or agreement of Tenant. and Landlord agrees to indemnify and hold Tenant harmless from
any .such claims or liability, including reasonable attorneys' fees, based upon any statement, representation or agreement of
Landlord.
18.8 AUthorization. Each individual executing this Lease on behalf of Tenant represents and warrants that he or she is
duly authorized to execute and deliver this Lease on behalf of Tenant and that such execution is binding upon Tenant. Each
in~vidual executing this ~ on behaff of Landlord represents and x~'rants that he or she is duly authorized to execute
and deliver this Lease on behalf of Landlord and that such execution is binding upon Landlord.
18.9 Holding Over, Surrender.. -
18.9.1 Holding Ch,er. If Tenant holds Over the Premises or any part thereof after expiration of the Term. such
holding over shall constitute a month-to-month tenancg.', at a rent equal to one hundred twenty five (125%) of the Base Rent
in effect immediately prior to such holding over and shall otherwise be on all the other terms and conditions of this Lease.
This paragraph shall not be con.m'ued as Landlord's permission for Tenant to hold over. Acceptance of Rent by Landlord
following expiration or termination shall not constitute a renewal of this Lease or extension of the Term except as
specifically set forth above. If Tenant fails to surrender the Premises upon expiration or earlier, termination of this Lease,
Tenant shall indemnif)' and hold Landlord harmless from and against all loss or liability resulting from or arising 'out of .
Tenant's failure to surrender the Premises. including, but not limited to. any amounts required to be paid to anS"tenant or
prospective tenant who xx~s to have occupied the Premises after the expiration or earlier termination of this Lease and any
related attorneys' fees and brokerage commissions. Notwithstanding the foregoing, if Landlord and T~nant are then
negotiating in good faith to renew or ex'tend this Lease, or to enter into a new lease for the Premises. then the increase in
Base Rent to one hundred nventy five percent (125%) and the duty to indemnify, shall not be effective unless Tenant
conunues to hold over be.vond 30 days after notice from Landlord that such negotiations are terminated.
18.9.2 Surrender..Upon the termination of this Lease or Tenant's right to possession of the Premises. Tenant xvill
surrender the Premises. together xvith all keys. in good condition and repair, reasonable wear and tear. damage by fire or
casualty, or as a result of Condemnation, or repairs which are the responsibility of Landlord. excepted. Conditions existing
because of Tenant's failure to perform maintenance, repairs or replacements shall not be deemed "reasonable wear and
tea/."
i 8.10 Joinl and Several. ~ Tenmnt consists of more ~an one person, thc obligation of all such persons shall be joint and
s..'weral.
18. i I Covenants and Conditions. Each prevision to be performed by' Tenant hereunder shall be deemed to be both a
covenant and a condition.
18.12 Addenda. The Addenda attached hereto, if any. and identified with this Lease are incorporated herein bv this
reference as ff fully set forth herein.
18.13 Unavoidable Delays. In the event that either party, shall be delayed or hindered in or prevented from the
performance of any act required'hereunder by reason of strikes, lockouts, labor troubles, inabili~' to procure materials.
failure of power, restrictive governmental laws or regulations, riots, insurrection. ,a~r or other reason of a similar or
dissimilar nature not the fault of such part).-, then performance of an,,' such act shall be ex'tended for a period equivalent to
the period of such delav. The foregoing shall not apply to Landlord's covenant of quiet enjoyment, or the obligation of
24.
L .R.EA.L_EST'&flCROCEN'.TUSTN_CA',LSTUSTN5 DOC 11'26'93 Draft 08.'27;93! I 55
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either part).' to pay any' money due hereunder, nor Landlord's obligation to join in the execution of permits and licenses
necessary for the conduct of Tenant's business in the Premises. Lack of mon~' shall not be deemed to be a cause beyond
either party's control.
18.14 Financing of Trade Fixtures. It is understood by Landlord that Tenant may lea.sc Tenant's equipment and trade
fixtures from a leasing company, hereinafter referred to as "Finance Company'. Said equipment and trade fixtures will be
installed, maintained and used in the Premises in order to assist Tenant to carry on its business as provided for herein.
Landlord fiuther agrees that any of said equipment or trade fixtmes shall remain personal property, notwi~cling the
manner or mode of the attachment to the Premises. Landlord recogxfiz~ and acknowledges that any claim'or claims that
thc Finance Company has or hereafter may have against thc equipment and trade fixtures by virtue of thc equipment lease is '
superior to any lien or claim of any nature which Landlord now has or hereafter may have to thc equipment or trade fixtures
by mature, agreement or otherwise. In the event of default of Tc,mn, in thc payment ofany rental to thc Finance Company,
or in the performance of any of the other tcnns and conditions of the equipment lease, or extensions or renewals thereof, the
· Finance Company or its assign, upon reasonable notice to Landlord and agreement to be responsible for any resulting
damage to thc Premises, may remove the equipment and trade fixtures covered by such equipment lease or any part thereof
from the Premises in accordance with the terms and conditions of the equipment lease. Tenant shall be responsible for any
damage caused in the removal of any such equipment or trade fixmr~ from the Premises. Landlord will make no claim
whatsoever to any equipment or trade fixnures covered by any equipment lease. The Finance Company may, without
affecting the validity of this waiver, extend the terms of payment of any rental or the performance of any of thc other terms
or conditions of thc equipment lease, without the consent of Landlord and without giving notice to Landlord. This waiver
shah inure to thc benefit of the successors and assigns of the Finance Company and shall be binding upon the heirs,
personal representatives, successors and assigns of Landlord.
18.15 Waiver of Distraint. Landlord hereby waives, releases and relinquishes any and aH rights of distraint (whether
arising by virtue of statute, common law or otherwise) upon the trade fixtures, furnishings, signs, equipment, machinery.
cash registers, point of sales terminals, inventory and personal property in the Premises. Landlord further agre~ not to
enforce any lien. levy or attachment on or recourse to any of the foregoing items that are subject to 'any lien or sec~ty
interest in favor of any vendor or other, supplier under any conditional sale, chattel mortgage or other security arrangement`
any consignor, any holder of reserved rifle or an.v holder of a security interest, or lender. Although the foregoing shall be
serf-operative without the necessity for any further instnunent or document, Landlord hereby agrees to .furnish Tenant or
any vendor or other supplier under any conditional sale, chattel mortgage or other security arrangement, any consignor, any
holder of reserved rifle or any holder of a security interest, upon written request from time to time. reasonable waivers of
Landlord's liens upon and right to distraint, levy, attachment or recourse with respect thereto and exempting the same from
distraint, levy, attachment or recourse. Any such waiver shall include an agreement by such person to give Landlord
-reasonable notice before entering the Premises and removing an)' of the foregoing items, and to repair any damage resulting
from the remm~l. Nothing in this Section 18.15 shall be deemed a salver by Landlord of the right to institute and exercise
any ax~lable remedy under any summary proceedings for recovering possession of the Premises that provide Tenant ,~ith
the right to prior notice and hearing.
18.16 Reasonable Consent. If the consent, appro~.~l or permission of Landlord is required or desired by Tenant
hereunder. Landlord agrees that it shall not unreasonably or arbitrarily withhold or delay such consent, approval or
permission. In the event that any such consent..approval or permission is specifically withhei'cL Landlord shall set fon. h in
writing its reasons for such withholding which reasons must bc reasonable under the cirommtances presented.
IN WITNESS WHEREOF. the parties have executed this Lease as of the date set forth above.
"Tenant"
CATELLUS DEVELOPMENrr CORPOP,.ATION,
a Delaware corRe., ration
-
DIRECTOR,
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Ger ,:atKttomev 25.
L'.REAL_EST&~ICROCE.N'xTUS'rN_CA'~LSTUSTNS.DOC 8/'26.n93 Draft 08/27,9311:55 AJx4
MICRO ELECT~ON'iCS. INC.. '
a Delaware com6ration //
.': .." ' , .' . . '.. ,, .
_
Its:
EXHI'B IT A
PREMISES
Parcel 1:
That portion of Lot 65 in Block 10 of Irvine's Subdivision, in the city of Tustin,
County of Orange, State of California, as per map filed .in Book 1. Page-88 of
Miscellaneous Maps, in the Office of the County Recorder of said county,
desCribed as follows:
Beginning at the intersection of a-line parallel with and distant Northwesterly
.770.40 feet, measured at right angles, from the Southeasterly line of said Lot 65,
with the Southwesterly line of Edinger Avenue (80.00 feet wide) described as that
certain 4.7904-acre parcel in deed to County of Orange recorded in.Book 5406,
Page 473 of Official Records of said County; thence South 39° 48' 47" West 10.00
feet along said parallel line to a point in-a line parallel with and distant
Southwesterly 10.00 feet, measured at right angles, from said SouthwesterlY line
of Edinger Avenue said point.~being the true point .of beginning: thence South
50° 10' 50" East (basis of bearings as per record of survey filed in Book 34,
Page 17, Records of said County) along said parallel line 314.40 feet; thence South
05° 11' 02" East 28.29 feet to a point in a line .Parallel with and distant
Northwesterly 436.00 feet: measured at right angles from said Southeasterly line
of said. Lot 65; -thence South 39° 48' 47" West along said parallel line 500.00 feet
to a point in a line parallel with and distant 'Southwesterly 530.00 feet measured
at right angles, from said Southwesterly line of Edinger Avenue; thence North
50° 10' 50" West along last said parallel line 3'30.40 feet; thence North '35° 14' 21"
East 50.16 feet to a point in first said parallel line; thence North 39° 48' 47" East
along first said parallel line 470.00 feet to the true point of beginning.
Except all oil, gas, and other hydrocarbon and mineral substances lying not less
than 100 feet below the surface of said land, provided that grantor, its successors
and assigns, shall not have the right to go upon the surface of said land for the
purpose of extracting said oil, gas, or other hydrocarbon and mineral substances,
nor for any purpose in connection therewith, but shall have the right, to extract
and remove said oil, gas, and other hydrocarbon and mineral substances by
means of slant-drilled wells iocated on adjacent or nearby land, or by any other
means which shail not require entry upon the surface of said land, as reserved by
Santa Fe Land Improvement Company, in Deeds of Record.
- -KE.~L_EST.\flCROCE.X'TL'ST%'.CA I. STUS.~.'5 DOC ~ _'5 95 Drdl 0g. 2793 12.26 PM
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EX3-I/BIT B
WORK LETTER
Tenant Improvemenl$.
·
1. Texture's Work. Pursuant Io section 1.4 of the Lea.se. Tenant sh~ll con~ or ~e Io ~ co~ed in ~d
~o ~e ~~ ~ Te~t's ~. ~n ~e~ improvemen~ (~e "Te~l's Wo~"). in ac~r~ce x~ ~ord's
r~em~ f~ impr~en~ ~ fo~ in Scheme B-I ~ch~ hereto. Te~Cs Work s~l
in ~r~ ~ the ~te PI~ (~ defm~ m ~e ~e} ~d ~r~ng ~in~ to ~ appr~ ~ ~ord. ~ord's
a~mv~ s~l ~ ~ ~~bly mn&fion~ xxSt~eld or delav~. ~v nofi~ of ~mpprov~ s~l include a ~tement of
· e r~ ~or.. ' '
2. Avoroval of Working Drawines. Preparation of the working drawings shall be the responsibility ofTena~t'
and Tenant shall submit same to landlord within five t 5) business da.~s after execution of this Lease. for Lan~ilord's
approx.~i Ito be evidenc:d ~. Landlord's representative's'signature thereon). Landlord and Tenant shall confer regarding
any-changes reasonably required by Landlord. Tenant shall cause to be made such changes as are mutually agreed to. and
deliver rexased working drawings to Landlord within ten (10) business days. Landlord's approx.'al shall be given within five
(5~ business da?3 following receipt thereof. Any changes to the plans and' working drawings which Tenant desires to make
during the course of construction shall require l~ndlord's consent, which consent shall not be tmrea_$onably withheld.
conditioned, or delayed.
o
3. Construcu~n Allox~nce. The Construction Allov, ance (as defined in the Lease) shall be paid in accordance
with the terms and con~tions set forth in the Lease.
4. Cos~ of Te::ant's Work. Except for the Construction Alloy, mace. the cost of Tenant's Work. including without
limitation, the architect's and/or space planner's fees. the construction costs, and any additional costs due to changes
required by the City. or ether local, state or federal governmental agent' having jurisdiction, or due to events or conditions
beyond Tenant's control shall be borne b2,.' Tenant and Landlord shall have. no liability therefor.
5. ' lndemnitx'. Tenant shall indemnify, hold harmless and defend (with counsel reasonably satisfacton- to
Landlord) Landloni.'its ~Tiliates. officers, directors, anome%'s, employees, contractors, agents, successors and as'signs
(co_llecfively. 'Landl_orffs Agents') from and against any ana ~1 claims, liabilities, demands, damages, costs, expenses.
actions, or causes of acuen arising out of or relating to Tenant s Work or any pan thereof, except to the extent caused bv the
n _egligence or v, iilful nu~onduct of Landlord or Landlord's Agents. The foregoing indemnity shall include, fi,'ithout '
limitation, reasonable anome3~' fees incurred bx' Landlord to defend itself against any action'or proceeding, together with
reasonable attornevs' f~ incurred to enforce this indemnits', and shall be gox'emed ~nd interpreted in accordance with
£ecuon 7 4 of the Lease
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SCHEDULE B-i
CATELLUS DEVELOPMENT coRPoRATION
I:~EQUIP~NTS FOR IMPROVEI~(ENTS OR ALTERA~ONS BY TENANT
Ii'Landlord shall pe.rmit Tenant to construct any initial tenant improvements in the Premises or to have any work
performed in the Premises at any time prior to or during the Lease term by a contractor retained by Tenant ("T~nant's
Work"). then Tenant shall comply x~th the requirements set forth hereto. Ail alterations to the Premises. excepting
movable furniture and trade fixtures, shall at the end of the Term ¢or. ii'the Term's renewed or ex'tended, then at the end of
the last such ex'tension or rcoewal lerm) at Landlord's option, become a part of the real .t3, and belong to Landlord.
1o SUBMITFAL OF PLANS. Prior to commencing any work in the Premises. Tenant shall submit to Landlord for
approval its proposed plans for the work. Without limiting the foregoing, ~Tenant shall provide:
(a) A separate scale, dra~dng denoting all proposed constructioh and/or demolition, if necessary..
(b) A separate drawing for each trade proposing structural, electrical, mechanical, civil or landscaping
modifications.
(~) Speci~.'.all dimensions and complete references to all work to be performed in the affected areas.
(d) ff adding extra electrical or mechanical equipment, provide complete operating and rnmmenance specifications
for each item.
Landlord hereby approves the draxx4n~ li~ed in Schedule B-3.
.
CHECKLIST. With respect.to each project. Landlord x,`~ll provide Tenant with a checklist listing the items required to
be furnished to Landlord in connection with the proposed v,x~rk. Tenant shall furnish to Landlord prior to. during,, or
upon completion of Tenant's Work. as applicable, each of thc items specified in the checklist attached hereto as
Schedule B-2.
3 CONTRACTORS PROVIDING TENANT IMPROVEMENT SERVICES.
(a)
The contractor employed by Tenant and any subcontractors shall be (i) duly licensed in the state in wttich the
Premises are located, and (ii) subject to Landlord's prior written approval, which approval shall n6t be
umeasormbly ,`sithheld. If more than one trade ~s employed on a single job. state las' requires the sen'ices of a
general contractor or in addition to contractors for special~' work being performed. Landlord has previously
approved all bidders on Tenant's initial improvements.
(b)
Each contractor shall provide proof of licensing as.a general or specialty contractor in accordance with State
Law. Additionally. each contractor shall furnish proof of licensing in the city or municipality wherein the
construction related activiv,.' is to take place.
(c) IntentionaJly omiued.
(d)
Tenant and Tenant's contractors shall comply with ali applicable local, state a.nd federal codes and re_m.fiatiens
pertaining to the performance of Tenv. nt's Work and the completed improverr, ents and all applicable ~et).'
regulations reasonably established by Landlord or the general con,..ractor.
(e)
Prior to commencement of any work in the Premises. Tenant and Tenant's contractors s -hall obtain and provide
Landlord with certificates evidencing Workers' Compensation. public liability and propert).- damage insurance ~n
amounts and forms and v.~th companies sausfactop,' to Landlord. Each general contra~or employed on the
Premises shall provide Landlord with a current certificate of insurance in effect Ibr that contractor with a Lkirtx'
(30) da,,' notice of cancellation or revocat, on clause. Insurance requirements are as follo~,~:
(i)
Comprehensive General Liabilit)' with a $2.000.000 Combined Single Limit covenng the liabiliv,' of
Landlord and contractor for bodily injury and propert)' damage arising as a result of the construci.ion of the
improvements and the sen'ices performed thereunder. Landlord shall be named as an additional insured.
(ii)
Comprehensive Automobile Liability with a $2.000.000 Combined Single Limit covering Landlord and
vehicles used bx' contractor {and an,," subcontractor; in connection with the construcuon of the
improvements.
' .R.EAL_EST.\gCKO~'-E.X,' TI'ST'N_CA LSTL'STN5 DOC $ 25 93 Dr~l 0g '2__7 9.1 1 ! 55 A.\I
~iii)
(iv)
Workers' Compensation and Employer's Liabilitx-as reqmred by law. for empiovees of the contractor land
any subcontractors; pefforrmng work on the Prenuses. '
If excavation is required, an endorsement deletin~ the exclusion for 'explosion. collapse, or underm'ound
hazard. - -
(0
Thc following requirements shall be incorporated as "Special Conditions" into the contract bev, vecn, Tenant and
its contractors and a copy of the contract shall be furnished to Landlord prior to the. commencement of Tenant's
Work:
(i) Intentionally omitted.
iii)
Tenant's contractor shall be responsible for the repair, replacement or clean-up of anv damage done by him
to other conwactors' work which specifi~ly includes access~x~ys to the Premises which may be '
concurrently used by others.
(iii)
Tenant's contraaor shall be responsible for verifying the condition of the Premises prior to starting any
trenching operation& Any rework of sub-base o~ compaction required after the contractor's initial '
acceptance ofthe Premises shall be done bv Tenant's contractor, which shall include the removal from the
Project of any axcess din or debris.
(ix,) Intentionally omitted.
(v)
(vii)
(viii)
All trash, demolition materials and surplus construction materials shall be stored within the Premises and
promptly rerno~-,,d from the Premises and the Project and disposed of in an approved sanitauon stte.
Tenant's contractor shall provide temporan- utilities, portable toilet facilities, and potable drinking water as
required for his work within the Prermses.'
Intenfionallv omitted.
--
Intentionally omitted.
COSTS.
(a)
Tenant shall promptly pay an.',' and all costs and ex-penses in connection with or arising out of the performance of
Tenant's Work (including the costs of permits therefor) and shall furnish to Landlord evidence of such payment
upon request. -
CONTRACTOR'S BONDS_ Intentionally omitted.
.MECHANIC'S LIENS. Tenant shall comply with all provisions of the Lease concerning mechanic's liens.
· .KEAL _EST.\flCKC, CE.X' ?CST.' CA 3_5~-,.-5.-2x. '5 ~ S 25 93 DraYl u8 27 93 ! ! 55 .-k.\!
91"
'19
2O
.~21i
729
~3.~
,36
,39
S C.:-u-3ED Lq..E B-2
ITEMS TO BE FU3:~\rlSFIED TO LANDLORD FOR EACH WORK OF IMPROVEMEN-I'
I. Plan of Alterations for Landlord Approval.
2. Contractorls}. Address. Telephone Number. Conm= Person. '
3. Copy of Contractors State and City Bus~ness Licen_~.
4. Copy of Building Permit.
~ Copy of Final Inspection and Signed Building Penmt Cards.
6. CoB' of Certificate of Insurance Naming Catellus D~-elopment Corporation as Additional Insured. Insurance to
include Comprehensive General Liabilin.'. Comprel~nsive Auto. Workers'_ Compensation and Employer's Liability.
.
signed Conditional. and. upon completion. Unconditional lien v, aiver in favor of Catellus Development Corporation.
Schedule of Work.
9 Intentionally omitted.
10. Architect's License and Expiration.
I I. Tenant and Architect Agreement.
12. Tenant and Contractor Agreement. - '
13. COB,.' of Perm/t Plans.
I-L Cop3' of As-Builts.
15. Copy of Recorded Notice of Completion.
16. Ceruficate of Occupanc3'.
17. Evidence of Insurance for All-Risk/Buil~ier's Risk Ir.~.u-ance to the Amount of Improvements.
_ .z__--.- ', EST_\OCKOCEN' .'~,-'STN.' CALST'CS.-'N.'5 ,~C ~ ~ 93 Dra-'~. O~ -- .---: ! 1 55 .-:,2.1
--.~.. _
LIST OF CONSTRUCTION DRAWINGS
SCI'~DLrLE B-3
APPRO\"ED DRAWINGS
CIVIL
1 OF4
'2OF4
TITLE SHEET
STREET IMPROVEMENT: EDINGER A'v'ENq.~
'~ OF 4 S 1Rt~L~-'I- IMPROVEMENT: DEL AMO AVE."N'U~
4 OF 4 S l R.EhT IMPROVEMI~_NrI': DEL AMO AVEN'L~
C I OF $ GRADING PLAN
C2 OF 5 GRADING PIAdq
C3 OF 5 GRADING PLAN
C4 OF 5 GRADING PLAN
C5 OF 5 DEMOLITION PLAN ·
A0.1
AI.I
Al.2
Al.3
Al.4
A2.1
A2.2
A3..3
A.2.4
A2.5
A2.6
A3.1
A32
A3 3
A3.4
A3.5
A3.6
A4.1
Ail
A5.2
A5.3
A6. I
A6.2
AS.I
A8.2
Ag.i
A9.2
A9.3
A9.4
GENERAL INFORMATION SHEET
SITE PLAN
ENLARGED SITE PLAN
ENLARGED SITE PLAN
ENLARGED SITE PLAN
FIR. ST FLOOR PLAN
ROOF PLAN
NOT USED
DOOR SCHEDULE
FINISH S~ULE
FLOOR COVERING PLAN
EXTERIOR ELEVATIONS
EXTERIOR ELEVATIONS
BUILDING SECTIONS
WALL SECTIONS
TOWER SECTION
TOWER SECTION
ENLARGED FLOOR PLANS
INTERIOR ELEVATIONS
INTERIOR I~I_I~.VATIONS
INTERIOR ELEVATIONS
REFLECTED CEII-ING PLAN
ENLARGED PLANS/SOFFITS
EXTERIOR DETAILS
EXTERIOR DETAILS
DE fAILS
DETAILS
DETAILS
INTERiOR DETAILS
STRUCTURAL
SI.I
S2.1
S2.2
53.1
54.1
S4.2
S5.1
56.1
56.2
GENERAL NOTES A.NrD ABBRE\rIATIONS
FOUNDA'I?ION PLAN
ROOF FRAMING PLAN
TOWER FRAMING ELEVATIONS AND DE'TAILS
FOUNDATION DETAILS
FOUNDATION DETAILS
ROOF AND CA.NOPY FR.~G DETAILS
ROOF SEISMIC UPGRADEffR.ETROHT PLA_',;
SEISMIC UPGRADE/RETROFIT PL.ad~
' -K-E.:,.L_ES'V-',9CROCE>; ~STN_C.&LSTCSTN.-5 DGC $" 9.~ F.~'a.,~, 08'27~': l' fi A.\I
;22
323
'~24
~27
.~28
,29
~30
)31
~32 '
~33
3?
39
42
43
4~
46'
5O
52
.~E
.~9
~0
~2
~3
;6
;?
,9
~0
'2
'3
'6
.X, flECHANICAI.
M0.1
M2.1
NL2.2
M3.1
SCHEDULES AND DET.a3LS
.MECHANICAL FLOOR PLAN
ROOF PLAN
DETAILS
ELECTRICAL
E0.1
E0.2
E0.3
El.0
EI.I
E2.1
E2.2
E2.3
E2.4
E2.5
E3.1
E3.2
E4.1
E5. I
E6.1
NOTE SHEET
PROBECT NOTE SHEET
SPECIFICATIONS
SITE PLAN
FOOTCANDLE SITE PLAN
LIGHTING PLAN
POWER PLAN
COMMUNICATIONS PLAN
PAGING SYSTEM SPEAKER/CABLE PLAN
SIGN POWER PLAN
ROOF PLAN
DETAIL SHEET
SINGLELINE DIAGRAM
PANEL SCHEDULES
TITLE 24 DOCIJMENTS
PLUM~ING
PI.1
P2.1
P2.2
P3.1
LEGENDS AND SCHEDULES
PLUMBING PLAN
ROOF PLAN
ENLARGED PLANS AND DETAILS
LANDSCAPE'
LI. 1 IRRIGATION PLAN
L2.1 IRRIGATION DETAILS
L3.1 PLANTING PLAN
L4.1 NOTES .~3',ID DETAILS
LS.I SECTIONS
LIST OF DEMOLITION DRAWINGS
DA0.1
IOF 1
DSI.1
DS2. !
DS3.1
NOTES
TOPOGKAPHlC AND BOUNDARY MAP
NOTES AND DETAILS
STRUC'FbT<AL }'IR. ST FLOOR PLAN
STRUCTUR. AL EXTERIOR ELEVATIONS
LIST OF CONSTRUCTION DRAWINGS
CIVIL
I OF4
20F.I
3 OF4
4OF.~
CI OF5
C2 OF 5
C3 OR 5
C-~ OR 5
TITLE SHEET
STREET IMPROVEMENT: EDINGER AVENUE
STREET hMPROVEMENT: DEL AMO AVENUE
STREET IMPROVEMENT: DEL AMO AVENUE
GRADING PLAN
GRADING PLAN '
GRADING PLAN
GRADING PLAN
L -;~.-XL.EST.',IJCROCE.',,' .-',~ST'N_CALSTL'S i'FN.'5 DOC S 259.1Enafi 08'27~93 11
C5 OF 5 DEMOLITION PL.~'q
A0.1
AI.I
Al.2
Al.3
Al.4
A2.1
A2.2
A2.3
AO..4
A2.5
A2.6
A3.1
A3.2
A3.3
A3.4
- A3o$
A3.6
A4.1
A5ol
A5 2
A5.3
A6.1
A6.2
AS.I
A8.2
Ag. 1
A9.2
A9.3
A9.4
GENERAL INFOR.Nfi~.TION SHEET
SITE PLAN
ENLARGED SITE PLAN
ENLARGED SITE PLAN.
ENLARGED SITE PLAN
FIRST FLOOR PLAN
FLOOR PLAN
NOT USED
DOOR SCHEDULE
FINISH SCHEDULE
FLOOR COVERING PLAN
EXTERIOR ELEVATIONS
EXTERIOR ELEVATIONS
BUILDING SECTIONS
WALL SECTIONS
TOWER SECTION
TOWER SECTION
ENLARGED FLOOR PLANS
INTEPJOR ELEVATIONS
INTERIOR ELEVATIONS
INTERIOR ELEVATIONS
REFLECTED CEILING PLAN
ENLARGED PLANS/SOFFITS
EXTERIOR DETAILS
EXTERIOR DETAILS
DETAILS
DETAILS
DETAILS
INTERIOR DETAILS
- K.E.~L _ESTAflCROCE.X' 'U, JSTN. CA LS]-CSTN. '5 DOC $
2121
2124
2125
26
27
212g
'q29
3O
31
2132
~i33
:136
:~3'/
3g
39
:140
'~41
.43
'46
.47
:51
152
EX2-IIBIT C
CONOvI'ENCE.MENT DATE MEMORANDL~t
..
With respect to that certain lease ('Lease") dated 1'9 between
· a ("Tenant"). and Catellus Development C-~'t~ration. a
Delaware corporation ("Landlord"). whereby Landlord leased to Tenant and Tenant le.a.~d from Ln. ndlord approximately
rentable square feet of the building located at '- f'Premises"). Tenant herebv-
acknov.,ledges and certifies to Landlord as follox~:
(1) Landlord delivered possession of the Premises to Tenant in a Subsmmially completed condition on
("Possession Date"):
(2) The Lease commenced on ('Commencement Date"):
(3) The Premises contain square fca ofspa~e: and
(4) Tenant has accepted and is currently in Possession of the Premises and the Premises are acceptable
for Tenant's use.
IN WITNESS WH~P,.EOF. this Commencement Date Memorandum is executed tkis
day of
199 .
'Tenant
.a
Its:
By:
Its:
' .KE.-M._EST.\~ICROCE."t TL'S ,'~:. '_CA .LST'C. ST?;5 DOC $ '2_5 93 Draft 0g '27.'93 1 i 55 .-M,l
E.~-IIBIT D
FORM OF INSURANCE CERTIFICATE
' .r-~AL_EST-\flCROCE.~,-T'I.'SI~_CA-' q'l'l.'Sl'i'N.'5 DOC S Z6'9.1 I)r~ft 01t?_79.; !
I'~LA
L(rT~A
CGLL'~ D
_ _
TIlC:MIdlB M BUC:Ii ~ ~ lalglW BAT IMkTIL II4.N I~wJ, Pv~,.a.v ~B I rFvv ~,,q.m, nn$.
C&TELt.U~ DEVELOPI~NT 13:)ftPORAT'J:ON
3.065 N. PAC]'F]:C~NT[R DRIVE~ SUZTE 200
ANAME.04. CA
AT'IN: ASSET
FAX (724) 237-742,6
~u. GQ OATS vd~-r~ NOT,CS Io ~( CLATW~T~ ~ KAML0 TO T~I
tuT. e4fl~ trait ~wqoc XQ~KA~K:fl~ r.x m~KXJU2W~N~ ~ ~ R
EXHIBIT'
-VIDENCE OF ROPERTY INSURANCE
·
·
ee o el
· Grid leCCerueuCa, :f.f applKcabXe) ~- _ $
__
V4r~houser, XesaJ. ].LabL].Lty (L~ app].tc=bXe)
RepL:ceu4uc ¢oec Coverase, 8pecf. a[ fora
I_
War, vet o£ lubcosaclou provtaf, oa tncluded ~
THE POLICY IS SUB. JECT TO THE PREMIUMS. FORMS, AND RULES IN EFFECT FOP, E. ACH POLICY PEFUOO. ~;HOULQ
THE POUCY 8E TE. RJ~INATEO. THE COMPANY W1LI. GIVE THE ADDITIONAL INTEREST IDENTIFIED BELOW 6~4.vs
WRII'r EN NOTICE. ,4dqO WILL 3ENO I,K)TIF}CATION OF ANY CHANGES 3'0 THE POUCY THAT WOUL0 A/:FECT THAT
LN~EREST. IN ACCOROANCE WITH THE POLICY PROVISIONS CLq AS REOUJREO ElY LAW.
:ATELLUS DEVELOPHEHT CORPORATION
.065 N. PACXF]:CENTER DHi'VE, SUITE 200
,NAHEIM. CA 92806
AT'TN: ASSET MANAGEMENT
:AX 714) 237-74~,8
[0~4 fAble X
~n<~ L~ndlord
~2
~3
;4 '
~6
;'~
;8
;9
~0
'3
,.~
9
0
!
6
7
1
7
!
5
)
EX~HIBIT E
PROHIBITED USES
The folloxx~ng t3.'pes of operations and acux~ties are expressly prohibited on the Premises:
.1.
2.
3.
4.
5.
6.
7.
8.
9
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
automobile/truck maintenance, repair or fiieling:
batter,,, manufacturing or reclamation:
ceramics and jeweln.' manufacturing or finishing:
chemical (organic or inor~nic} s~orage, use or manufacturing;
_.
drum rec3.'cling:
dry cleaning:
electronic componems manufacturing:
electroplating and metal finishing:
explosives manufacturing, use or storage:
hazardous x~:aste u'eaunent, s~omge, or disposal:
leather production, running or finishing:
machiner,.' a~qd tool manufacturing:
medical equipmenl manufacturing and hosp,tals:
metal shredding, recycling or reclamation:
metal smelting and refining:
mining:
paint, pigment and coating operations:
petroleum refining:
plastic and s3.-nthctic materials manufacturing:
solvent reclamation:
tire and .rubber manufactu,'-ing:
aboYe- ancVor underground ~omge tanks: and
residential use or occupancT.'.
· -R..EA.t._EST.\I1CRCX?E.N' TUS'I-N_CA 2. S ~'FL'S ~'FN'5 DOC S z~.95 l]rzfi OS'"7 93 I ! -~.~ .-L\l
l..
10.
11.
12.
13.
14.
15.
(Intenuonally omitted.
EXTHIB IT F
(Intentionally omitted.)
RULES AND REGULATIONS
All garbage and refuse shall be kept in the kind of container reasonabl,,- specified 6,,: Landlord and shall be laced
outside of the Premises prepared for collection in the manner ana ..- gu_ .: .... ; , ' . _ P '
Landlord. ~, ,~ u~c umes aha places reasonably specified by
No aerial shall be erected on the roof or exterior walls of the Premises or on the grounds without, in each instance.
the '.,,xitten consent of Landlord..amy aerial so installed without such consent shall be subject to remo,,-al without
notice at any time.
No loud speakers, televisions, phonographs, radios Or othcr devices shall be used in a manner so as to be heard or
seen outside of the Premises without the prior x~xitten consent of Landlord. In addition. Tenant shall conduct its
business m a quiet and orderly manner so as not to create unreasonable no,se.
The outside areas immediately adjoining the Premises shall be kept clean and free from dirt and rubbish b,,' the
Tenant to the satisfaction of L~ndlord and Tenant shall' not place or permit any obstruction or merchandise in'such
areas., lfoutside areas are. not so maintained within 12 hours after ,,'erbal no[ice of same. Tenant agrees to pay a
reasonable fcc determined by Landlord for each such infraction to co,,'er this cost. No exterior storaue shall'be
allovced w~thout permission i'n '.wiring from Landlord. .' -
(IntenUonally omitted.)
The plumbing facilities shall not be used for an,,- purpose other than that for which they are constructed, and no
foreign substances of any kind shall be throw~ therein. The .e.xpense .of any br. ,e~. 'ge. Stoppage. or damage
resulting from a violafior~ of this provision shall be borne by the tenant, whose emplo,,ees, agents or invitees shall
have caused it. .
Tenant shall use at Tenant's cost such pest extermination contractor as Landlord may reasonabl,,, direct (provided
that the contractor is compefifi,,-e in qualiv,.- and cost) and at such intervals as Landlorfi may reasohablv require.
Tenant shall not burn amy trash or garbage of any kind in or about the leased Premises.
.,MI public entrances and e.x. its lo the Premises Shall be kept unobstructed and open to the public at all times during
normal btmness hours.
Tenant shall not cause or permit any obnoxious or foul odors that disturb the public or other tenants. Should such
odors be evident. Tenant shall be 'required to take immediate steps to remedy same upon written notice from
Landlord.
No video, pinball, or similar electronic game machines of anY description shall be installed, maintained or operated
upon the Premises without the prior ,,%ritten consent of Landl'ord.
Tenant shat! be responsible for repair of any damage occasioned by the mo,,'ing of freieht, furniture or other objects
~n:o. v. ifl~.in, or out of the Premises or the ~2emer. No heavv obi&ts of an,.. nature sh-ail be placed upon an,.' floor
without Landlord's prior v. xinea approx~l as to0 the adequac<, of the allowal~le floor loading at the point wh~re the
objects are intended to be moved or stored. Landlord mav slJecff?,.' the time of mo,vine to rmnimize inconvemence to
other tenants, ifanv. '
·
No drapes or sunscreens of any nature shall be installed without Landlord's prior v~titten approval. The sash doors.
.sashes. windows, glass doors. 'lights and sk~'lights that reflect or admit lieht into the Prermses shall not be covered
or obStructed. Waste and e.xcessive or unusual use ofx~ater shall not be a~lowed.
No additional lock or locks shall be placed or chan£ed by Tenant on an,,- door without the prior xxwirten 'consent of
Landlord. Two kevs will be furnished by Landlord.-All Jcevs shall be su~rrendered to Landlord upon terminauon or
expiration of the Lease Term. '
7. ( Intenuonallv omitted.
.q.E-q.L_EST.\flCF, O, CE_.N' ~'CSTN_CA LS'V'CS ~-.. '5 DOC 8 26 9312~afi 08 27'93 11 5_'3 A.\I
18.
Landlord reserx'cs the right {'rom time to time to amend or supplement the foregoing rules and r¢.m.~lations
applicable to thc Pren,ascs. subject 'to Section 10.1 of thc Lease. Notice o£ such rules and r¢~zulations and
arnencimcnts and supplements thereto, if any. shall by given to Tenant. In thc. ex'cra of an,,' conflic~ bcrwccn the
rules and rc=,gulation.s and thc t:rrns of' thc Lease. thc terms of thc Lea.sc shall control.
E.X.~IIB IT G
SITE PLAN
..
Se~ Site Plan. Sh~t Al. 1. da~ed 8116193 by LPA.. Architects
;~7
:259
:9O
!9!
:292
::93
:98
:99
.'3OO
:30!
~02
603
~07
IlO
:312
'~13
~17
~30
~4
~8
=0
42
EXHIBIT H
Non-Disturbance and Attomment Agreement
'I'H~S NON-DISTURBANCE AND ATTOR.NMENT AGREEMENT (the "Agreement") made and entered into as of.
the day of . 19 by and ben%,een . a
("Secured Pa~.'"). and MICRO ELE~'rR~NIC$. INC.. a Delaaare corporauom d/b/a MICRO CEN~IER ("Tenant").
WHEREAS. Tenant and . ("Landlord") have entered into a certain Lease
dated as of .19__ (the "Lease") pursuant to which Tenant has leased from Landlord certain premises located at
. as more particularly described in the Lease (the "Premises"); and
WHEREAS. Secured Pare,' is the holder of pursuant to that certain
dated as of .19__ (the "Superior Agreement") bet~'een Landlord and Secured Party: and
WHEREAS. Secured Part3.' and Tenant desire to evidence their understanding with respect to the Superior Agreement
and the Lease as hereinafter provided: '~'
NOW THEREFORE. in consideration of the mutual agreements hereinafter set forth, the parties hereto hereby agree
as follows:
Section 1. Nondisturbance. So long as Tenant is not in default (beyond any period given Tenant under the Lease to cure
such default) m the pa.vment of rent or other sums payable by Tenant under the Lease or in the performance of any of the
terms, covenants or conditions of the Lease on Tenant's pan to be performed, possession and right of use of the Premises
and Tenant's rights and privileges under the Lease. or any ex'tensions or renewals thereof which may be affected in
accordance with any option therefor in the Lease. shall not be diminished or interfered with bv Secured Par&-: Secured Para'
~ill not disaffirm the Lease: Secured P-am- x~ill recognize all restrictions imposed on the Project by the Lea~: Secured Part3,.'
will affirmatively recognize the validity bf the Lease and Secured party will not join Tenant as a party, defendant in any
~aion or proceeding for the purpose of terminating Tenant's interest Mder the Lease. Notwith.r, anding an.vthing to the
.ontran, in the Superior Agreement. aH insurance and condemnation proceeds or awards paid or payable with r~ to the
Premises and received by Secured Pan3.' or Landlord shall be made available by Secured Parn,' to b~ held. applied and paid
in the manner set forth in the Lease. ' '
·
Section 2. Attomment.
2.1. Succession bv Secured Parn'. If the interest of Landlord shall be transferred to and owned bv Secured Parn- or a
purchaser at foreclosure sale (collectively with Secured Parn-. a "New Owner") by reason of foreclosure or 'other
proceedings, or by any other manner, and the New Owner su~ to the interest of the'Landlord under the Lease. Tenant
shall be bound to the New Owner under all of the terms, covenants and conditions of the Lease for the balance of the term
thereof remaining and any emensions or rene~x'als thereof which may be effected in accordance with any option therefor m
the Lease. with the same i'orce and effect as if the New Owner were [he Landlord under the Lease. and :renant does hereby
attom to the New Ox~er as its landlord, said attomment to be effective and seLf-operative without the execution of an;,'
further insu'uments on the part of either para' hereto immediately upon the New Owner succeeding to the interest
landlord under the Lease: provided, ho~vever, that Tenant shall be under no oblJeation ',o pay to the New Ox~T, er any rem or
ozher sum payable pursuant to the Lease until Tenant recer,,es sati~actorv e~'idence tro~n the New O-,vner '.hilt it has
succeeded to the interest of Landlord under the Lease. The respective rights 'and cbligafions of Tenant and the New Owner
upon such attornment, to the ex-tent of the :.hen remaining balance of the term of the Lease and any such extensmns and
renewals, st,.all be and are the same as now set forth therein: it being the intention of the' parues hereto for this pttrpose to
incorporate the Lease in this Agreeraent by reference xrith the same force and effect as if set forth at length hereto.
2.2. Limitation of Duties of New Owner. If the New Owner shall succeecl to the interest of Landlord under the Lease.
the New Owner shall be bound to Tenant under all the terms, covenants and conditions of the Lease. and Tenant shall, from
and after the New Owner's succession to the interest of Landlord under the Lease. have the same remedies aemnst the New
Oxrner for the breach of any agreement contained in the Lease that Tenant might have had under the-Lease a~,ainst
Landlord ff the New Oavner had not succeeded to the interest of Landlord: provided, however, that the New Owner shaql not
be ¢i) personally liable for any act or omission of Landlord: or (ii) bound by any rent which Tenant mit~ht have paid to
Landlord for more than the current rental period: or (iii) bound by an',' an~end~ent or modification of'the Lease made
without its consent.
· ."-X~:d..EST.\LICROC-C'.'x'TU$'I~q.C.~'.LSTUST?Z5 Dr',.,C ! 2'. 93 Dr~'t Og 2793 II .%~ A.\I
2.3. Landlord's Trustee. In the event thai any court of competent jurisdiction determines, in connection with an,,'
bankrupts., insolvency, liquidation, dissoluuon, receivership or other s~milar proceeding affecting La.ndlord. that an;,'
amounts pa~d by Tenant to Secured Part~' under Section 2.2 hereof should have been paid by Tenant to Landlord o'r
Landlord's tru~ee, receiver, liquidator or ~3ther person exercising similar po'.vers in cormecUon ~,'ith any such proceeding
(an)' of the foregoing being referred to as a "Trustee") and orders Tenant to pay such amounts to Landl(~rd or the Trustee.
Secured Party shall lgromptly pay such amount, together with any interest or costs imposed bx' such court, on behalf of
Tenant. Secured Part).' shall hold Tenant harmless from any claim.~ of Landlord or the Tru~ee. d~a~es or expenses in an,,'-
such proceedings arising out of an,,' amounts paid bv Tenant to Secured Part~' under Section 2.2 h~reof, which expense's
shall include reasonable attorney's lees.
S~tion 3. Subordination of Lease. Tenant covenants, stipulates and agrees that the Lease is herebv, and shall at all times
continue to be. subordinated and made seconda~- and inferior in each and every respect to the Sul~rior Agreement and to
any and all renewals, modifications, ex-tensi(~ns, substitutions, replacements and/or consolidations of the Superior
Agreement. but any and all such renexx~ls, modi. ficat~ons, e~ensions, substitutions, replacements and/or cortsolidaaons
shall nevertheless be subject to and entitled to the benefits of the terms'of this Agreement.
Section 4. Miscellaneous.
4.1. Waiver. No purported x'.~aiver by either party of any default by the other party of any term or prox'ision contained
herein shall be deemed to be a wix'er of s~ch term or'provision unless 'the waiver is i~ writi~e and siuned by the wmvine
part).'. No such waiver shall in any event be deemed a v. aiver of any sUbsequent default under tl~e same ~r anv'other term
provision contained herein. -
..
4.2..Entire Agreement. This Agreement' sets forth the entire understanding bet~'een the parties concermng the
subject matter of this Agreement and incorporates all prior negotiations and understandings. There are no covenants.
promises, agreements, conditions or understandings, either oral or written, between the parties relating to the subject matter
of this Agreement other than those set forth herein. No representation or warranty has been made by or on behalf of either
party, to this Agreement (or any officer, director, employee or agent thereof) to'induce the other l~arty to enter into this
Agreement or to abide by' or consummate any transactions contemplated by any terms of this Agreement. except
representations and v.~rranties, if any. expressh"set forth herein. No alteration, an~endment, change or addition to this
Agreement shall be binding upon either pan3.' un'less in writing and signed by 'the pan3.' to be charged.
. .
4.3. Successors. Each and all of the provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns·
·
4.4. NotiCes. Any consent, waiver, notice, demand, request or other instrument required or permitted to be given
under this Agreement shall be in writing and be sent by cert/fied or registered Uniied States mail. return receipt requested.
postage prepaid, addressed: '
If to Tenant:
MICRO CENTER
1555 W. Lane Avenue
Columbus. Ohio 43221
Attention: Chief Financial Officer
l.f :G Secured Part3.':
Any such consent, waiver, notice, demand, request or other instrument shall be deemed given upon receipt or upon the
refusal of the addressee to receive the same as indicated on the return receipt. Either party ma,,' chan~e its address for
nouces by notice in the manner set forth above. ' -
· 1.5...~.~ptions. Tile captions and sect,on numbers appeanng in th,s Agreement are inserted onjv as a matter of
convenience They do not define, limit, construe or describe the scope or intent of the provisions of this AgO'cement.
· Y~AI-.EST-\flCK~'-xC'-':~' T',.'$TN.CA LSTUSTS.'5 DOC -~
106
24O8
2409
410
Ill
2412
"413
414
415
2416
"417
419
2420
')-~21
24124
426
2428
'429
.4.11
2432
' 133
43~8
.439
:440
' 141
~2
.443
452
;53
;59
4.6. Partial lnvalidin'. If an;' term or provision of this Am'eement or ti.'..- application thereof to an3' person, finn or
corporation, or circumstance, shall ~e invalid or unenforceable, tile remainder of this Agreement. or the application of such
term or provision to persons, firms or corporations, or mrcumstances, other than those as to which n ~s held invalid, shall
both be unaffected therebv, and each term or provision of this Aereement shall be valid and be enforced to the fullest ex'tent
permitted by law. ' -
4.7. Govemine Law. This Agreement shall be governed bx' and construed in accordance with the laws of the State 6f
California applicable to agreements to be performed in the State ~f Ca. lffo~a.
4.8. Counterpans. This Agreement may be executed in counterpax~, each of which when executed by the parties
hereto shall be deemed an original and all of wi:rich together shall be deemed the same Agreement. '
The parties hereto have caused this Agreement to be executed as of the da,,' and 3'ear first above V, Tirten.
In the Presence of: SECURED PARTY:
By:
Its:
In the Presence of:
MICRO ~--ECTRONICS. INC..
a Delaware corporation, d/b/a
MICRO CENTER
By:
Its:
STATE OF ' ·
COUNTY OF ·
· SS.
The foregoing instrument xxas acknowledged before me th.is · da-,' of
of . on behaLf~f the
19 bx'
STATE OF ·
· SS.
COUNTY OF FRANKLD~ ·
'I~,e foregoing instrument was acknowledgea
bchalf of the corporatton.
Notary Public
before me this day of 19 bx'
of Micro Ele-'~mcs.' Inc.. a Delaware cor~orau'~, o~
Notarx. Public
· -v',.EAL.EST-\IJCROCEN TL'STN.CALSTUSTN.', I2OC $ 26 93 Dra. l~ 08.'2.7 93 I ! ff A.',!
EX.I~FB IT !
Tenam's Signs
See drawines dated August 10. 1993 prepared bm, William Dascenzo. Design Consultant. consisting o£ sheets A. B. C.
flagging Superior Elecu-ical Adverusing. and Cut ~heet for Neosux System.
' ."~F. AL_ESTAflCROC:N-TUSTN_. _C'% LSTL.'ST,'~. . DOC $'2693 Draft 08"27. x)3 12 25p~..~
i_
Urban Design Concept
PACIFIC. CENTER EAST
FIjUZ./UUZ
RESPONSIBILITY AND INDEMNIFICATION AGREEMENT
Re: Occupation of premises at. 15222 Del Amd Avenue, Tustin,
California prior to execution of proposed and intended
Sublease between the Tustin Community Redevelopment Agency and
Micro Electronics, Inc. for office space.
Micro Electronics, Inc. hereby agrees that it will be fully
responsible to the City of Tustin and to its Lessor for all loss,
damage and expense connected with and/or arising out of Micro
Electronics, Inc.'s occupation of the above-referenced premises
prior to the Rent. Commencement Date of the Sublease for the above-
captioned premises and Micro Electronics, Inc. hereby agrees to
fully indemnify, defend and hold the City of Tustin, its officers,
employee~, ag~nt~, attorneys, repre~entative~, ~ucce~o~, a~ign~
and Lessor harmless from and against all claims, suits, damage,
loss, and costs of liability arising out of or connected with Micro
Electronics, In=.'~ u~e and/or occupation of the aforesaid
premises.
AGREED TO THIS
DAY OF AUGUST, 1993.
By:
R~hard M. Mershad, Vice President
Micro Electronics, Inc.
ACCEPTED: CITY OF TUSTIN
By:
ATTACHMENT 4
SCHEDULE OF PERFORMANCE
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ATTACHMENT 4
SCHEDULE OF PERFORMANCE
TASK
PERFORMANCE SCHEDULE OR STATUS
Execution of Agreement by
Agency. The Agency shall
approve and execute this
Agreement and shall
deliver one copy each to
the Tenant and the
Property Owner.
Entitlement Drawings
Submittal. The Tenant and
the Property Owner shall
submit the required plans
for review by the Planning
Commission and
Redevelopment Agency to
obtain entitlement for the
development.
Not later than forty-five (45)
days after the date of
execution and submission of
three (3) copies of this
Agreement by Tenant and
Property Owner.
Completed
Review of Plans by
Planning Commission.
Planning Commission shall
approve, conditionally
approve or deny submittal.
Completed
Review of Plans by
Redevelopment Agency·
Redevelopment Agency shall
approve, conditionally
approve or deny the
submission.
Completed
Submission of Final
Construction Drawings and
Plans for Phase .I
Improvements. Tenant and
Property Owner shall
submit complete
construction drawings and
plans to City for Review
and approval.
Completed
ATTACHMENT NO. 4
(Page 1 of 3)
TASK PERFORMANCE SCHEDULE OR STATUS
·
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10.
11.
Approval by PlanninG,
Buildinq and Public Works
Department. The Planning,
Building and Public Works
Department shall approve
plans for Phase I
Improvements and issue
Building Permits.
Completed
Submittal of Irrevocable
Offer to Dedicate RiGht-
of-Ways a Condition of
Phase I Permit Issuance.
The Tenant and the
Property Owner shall
submit an irrevocable
offer to dedicate required
right-of-way.
Completed
Submittal of Bond for
Phase III Public Works
Improvements as a
Condition of.Phase I
Permit Issuance. Tenant
and Property Owner shall
submit a bond in the
amount of the estimated
cost of the ultimate
street improvements.
Completed
Buildinq Permits for Phase
I Improvements.
Tenant and Property Owner
shall obtain building
permits for approved Phase
I Improvements.
Completion of Construction
of Phase I Improvements
Tenant and Property Owner
shall complete Phase I
Improvements.
Submittal of Plans for
Phase II Improvements.
Tenant and Property Owner
shall submit plans for the
Phase II Improvements
Completed
Completed
Upon submittal of plans for any
development of the property
immediately west of the Site.
ATTACHMENT NO. 4
(Page 2 of 3)
TASK PERFORMANCE SCHEDULE OR STATUS
12.
13.
14.
15.
Completion of Phase II
Improvements. Tenant and.
Property Owner complete
Phase II improvements.
Submittal of Plans for
Phase III Improvements.
Tenant and Property Owner
shall submit construction
plans for completion of
all Phase III
Improvements.
Completion of Phase III
Improvements. Tenant and
Property Owner shall
complete all Phase III
Improvements.-~.
Payment of Agency
Assistance. Agency makes
assistance payments to the
Tenant.
Before issuance of certificate
of occupancy for any
development of the property
immediately west of the Site.
Pursuant to the Agreement
between the City and the
Property Owner dated September
21, 1993, or as may be amended.
Pursuant to the Agreement
between the City and the
Property Owner dated September
21, 1993, or as may be amended.
As set forth in Section 310 of
this Agreement.
ATTACHMENT NO. 4
(Page 3 of 3)
ATTAC -E~ 5
SCOPE OF DEVELOPMENT
ATTACHMENT NO. 5
SCOPE OF DEVELOPMENT
I. GENERAL DESCRIPTION
The Site is delineated on the Map (Attachment No. 1) and the
Legal Description (Attachment No. 2) pursuant to Section 103 of the
Agreement.
II. DEVELOPMENT OF THE SITE IMPROVEMENTS
1. Definition of Improvements
The Tenant and the Property Owner shall complete all of the
Site Improvements set forth in this Scope of Development
(Attachment No. 5) which shall include those to be constructed on
the Site and those infrastructure improvements required in
connection with the City's entitlement process. All improvements
set forth in this Part II of the Scope of Development (Attachment
5) (including all of the Phase I, Phase II and Phase III
Improvements), which conform to the Development Standards of Part
III hereof, together constitute the "Site Improvements."
The Site Improvements consist of three phases as follows: (i)
the "Phase I Improvements", which shall consist of those certain
improvements described in Section 4 of this Attachment No. 5 and
which shall be made before the issuance of a certificate of
occupancy for the building on the Site; (ii) the "Phase II
Improvements", which shall consist of those certain improvements
described in Section 5 of this Attachment No. 5 and shall be made
at such time as the property to immediately to the west of the Site
is developed with any development; and the "Phase III
Improvements", which shall consist of those certain improvements
described in Section 6 of this Attachment No. 5 and shall be made
at such time as there is full improvement to Edinger Avenue .as
required by to the Pacific Center East Specific Plan and Final
Environmental Impact Report, as currently in force or as may be
subsequently amended by the City of Tustin and/or full improvement
to Del Amo Avenue as required by the Pacific Center East Specific
Plan and Final Environmental Impact Report, as currently in force
or as may be subsequently amended by the City of Tustin.
2. Schedule for Performance
The Tenant and the Property Owner shall commence and complete
the Site Improvements by the respective times established therefore
in the Schedule of Performance (Attachment 4).
ATTACHMENT 5
Page 1 of 5
- 3. Tenant and Property Owner Responsibility for Improvements
The respective responsibilities of the Tenant and the Property
Owner to undertake or to cause to be undertaken the Site
Improvements shall be determined by the provisions of The Lease
(Attachment 3) .
4. Description of Phase I Improvements
As part of the Phase I Improvements, the Tenant and the
Property Owner shall develop or cause to be developed on the Site
an approximately 45,600 square foot retail computer outlet operated
by the Tenant and commonly known as "Micro Center, The Electronic
Superstore." The Phase I Improvements shall consist of the
interior and exterior rehabilitation/revitalization of the existing
building as well as improvements to the parking facility, on-site
utilities, on-site landscaping and existing public right-of-way.
The Phase I Improvements shall comprise:
a. A full service Micro Center store in the
rehabilitated existing structure of approximately 45,600 square
·
feet.
b. Redesign of the interior and exterior of the
existing retail building pursuant to the exhibits (Attachment 7)
and conditions approved by Planning Commission Resolution No. 3180
(Attachment 6).
c. Redesign. and/or reconstruction of the existing
Parking lot to conform to current city Code requirements, pursuant
to Planning Commission'Resolution No. 3180 (Attachment 6).
d. Redesign and/or reconstruction of off-site curb,
gutters, driveways and sidewalks, pursuant to Planning Commission
Resolution No. 3180 (Attachment 6).
e. Landscaping within the existing right-of-way lines
for Edinger Avenue and Del Amo Avenue and the on-site property
adjacent to the respective rights-of-way, pursuant to Planning
Commission Resolutions No. 3178 and No. 3180 (Attachment 6).
f. Filing with the City of Tustin of an irrevocable
offer of dedication for the ultimate right-of-way along Edinger
Avenue and Del Amo 'Avenue pursuant to Planning Commission
Resolutions No. 3177 and No. 3180 (Attachment 6).
g. Filing with the City of Tustin of a~ bond, in a form
required by the City, for the ultimate street improvements along
Edinger Avenue and Del Amo Avenue, pursuant to Planning Commission
Resolutions No. 3177 and No. 3180 (Attachment 6).
ATTACHMENT 5
Page 2 of 5
5. Description of Phase II Improvements
As part of the Phase II Improvements, the Tenant and the
Property Owner shall undertake or cause to be undertaken those
improvements on the Site required for the development of the
property immediately'west of the Site. The Phase II Improvements
shall comprise:
a®
the Site. '
The removal of the railroad spur on the west side of
be
is removed.
Landscaping of the area from which the railroad spur
6. Description of Phase III Improvements
As part of the Phase III Improvements, the Tenant and the
Property Owner shall undertake or cause to be undertaken those
improvements which are dependent on future construction activities
to complete the public improvements required for buildout under the
provisions of the Pacific Center East Specific Plan and Final
Environmental Impact Report for the Pacific Center East Specific
Plan. The Phase III Improvements shall comprise:
a. As required by Condition No. 5.10 of Planning
Commission'Resolution No. 3180 (Attachment 6), construction and/or
reconstruction for the ultimate Configuration under the Pacific
Center East Specific Plan and Final Environmental Impact Report of
Edinger Avenue including, but not limited to:
1) curb and gutter
2) sidewalks
3 ) pavement
4) utility undergrounding
5) storm drains
6) water lines
7) sewer lines
ATTACHMENT 5
Page 3 of 5
8) street lights
9) signing and striping
10) on-site and off-site landscaping
b. As required by Condition No. 5.10 of Planning
Commission Resolution No. 3180 (Attachment 6), construction and/or
reconstruction for the ultimate configuration under the Pacific
Center East Specific Plan and Final Environmental Impact Report of
Del Amo Avenue including, but not limited to:
1)
2)
3)
4)
5)
6)
7)
8)
9)
curb and gutter
sidewalks
pavement
utility undergrounding
storm drains
water lines
sewer lines
street lights
signing and striping
10) on-site and off-site landscaping, including
seven (7) date palms
c. Payment of one-third of the cost for the traffic
signal reconstruction at Edinger Avenue and Del Amo Avenue.
III. DEVELOPMENT STANDARDS
Ail of the Site Improvements shall be developed in conformity
with (i) the Municipal Code of the City of Tustin and the Pacific
Center East Specific Plan (as in effect at the time plans for the
Phase I Improvements, Phase II Improvements and Phase III
Improvements are respectively approved) and (ii) the conditions of
ATTACHMENT 5
Page 4 of 5
Planning Commission Resolutions No. 3177, 3178, 3179 and 3180 and
Redevelopment Agency Resolution No. RDA 93-13 (Attachment 6).
The Tenant and the Property Owner acknowledge responsibility
to obtain any approvals required by CalTrans or any other
governmental agency, utility or other agency, including the City of
Tustin, which has jurisdiction over all or a portion the Site
Improvements. The Tenant and the Property Owner, as appropriate,
shall make all necessary applications by suCh time(s) as will be
consistent with the timely commencement and completion of various
portions of the off-site improvements by the respective times
established therefor by the Schedule of Performance (Attachment No.
4).
ATTACHMENT 5
Page 5 of 5
ATTACH3/IENT 6
PLANNING COM/VIISSION RESOLUTIONS
3177~ 3178, 3179~ 3180
REDEVELOpME~ AGENCY. RESOLUTION
RDA 93-13
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6
7
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18,
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20
21
22
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24
25
26
27
28
RESOLUTION NO. 3177
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF TUSTIN, CONDITIONALLY APPROVING THE PLANNING
AREA 6 CONCEPT PLAN FOR THE PACIFIC CENTER EAST
SPECIFIC PLAN.
The Planning Commission of the City of Tustin ..does hereby
resolve as follows:
I. The'Planning Commission finds and determines as follows:
ae
That a proper application to consider the Planning
Area 6 Concept Plan for the Pacific Center East
Specific Plan was filed by Catellus Development,
Inc. and Micro Center.
Be
Co
That said application was considered by 'the
Planning Commission on August 23, 1993.
Pursuant to Section 9272 of the Tustin Municipal
Code, the Commission finds that the location, size,
architectural features and general appearance of
the proposed development' will not impair the
orderly and harmonious development of the area, the
present or future development therein, or the
occupancy as a whole. In making such findings, the
Commission has considered at least the following
items:
1. Setbacks and site planning;
· ..
Landscaping, parking area design and traffic
circulation;
3. Physical relationship of proposed structures
to existing structures in the neighborhood;
and
~
Development Guidelines and criteria as adopted
by the City Council, particularly the Pacific
Center East specific Plan.
Ii. The Planning co~missi6n hereby conditionally approves the
Planning Area 6 Concept Plan for the Pacific Center Eas~
Specific Plan, subject to the conditions contained in
Exhibit A, attached hereto.
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Resolution No. 3177
· Page 2
PASSED AND ADOPTED by the Planning Commission of the City of
Tustin, at a regular meeting on the 23rd day of August, 1993.
KATHLEEN CLANCY
Recording Secretary,/
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF TUSTIN )
Chairperson
I, KATHLEEN CLANCY, the undersigned, hereby certifY that I am
the Recording Secretary of the Planning Commission of the City
of Tustin, California; that Resolution No. 3177 was duly
passed and adopted at a regular meeting of the Tustin Planning
Commission, held on the 23rd day of August, 1993.
~TF_LEEN dLAN-C Y
Recording Secretary.
EXHIBIT A
RESOLUTION NO. 3177
CONDITIONS OF APPROVAL
PLA/qlqING A/~EA 6 CONCEPT PLAi~
GENERAL
(1) -1.1 The proposed project shall substantially conform with the
submitted plans date stamped August 23, 1993, on file
with the Community Development Department as herein
modified or as modified by the Director of Community
Development in accordance with this Exhibit. The
Director of Community Development may also approve
subsequent minor modifications to plans if such
modifications are found to be consistent with provisions
of the Pacific Center East Specific Plan.
(1) 1.2 The property owner shall sign and return an "Agreement to
Conditions Imposed" form prior to issuance of building
permits for Design Review 93-020 (Micro Center).
(1) 1.3 The property owner shall hold harmless and defend the
City of Tustin for all claims and liabilities arising out
of the City's approval of the entitlement process for
this project.
PLA1TNING AREA 6 CONCEPT PLAN
(4) 2.1 The intersections of Edinger/Newport, Edinger/De! A mo and
(5) Newport/Del Amo shall be signalized intersections. The
mid-block intersections on both Del Amo and Newport may
have full turn access restricted due to traffic volumes,
subject to approval of the City Engineer and signals may
be required at these intersections, subject to approval
of the City Engineer.
(4) 2.2 The landscape concept within the Planning Area shall be
consistent with E;~ibit 8 of the Pacific Center East
Specific Plan.
SOURCE CODES
(1) ST]kNDARD CONDITION (5) RESPONSIBLE AGENCY REQUIREF~ENT
(2) CEQA MITIGATION (6) LANDSCAPING GUIDELINES
(3) UlqIFORM BUILDING CODE/S (7) PC/CC POLICY
(4) DESIGN REVIEW
*** EXCEPTION
Exhibit A - Conditions of Approval
Planning Area 6 Concept Plan
Resolution No. 3177
Page 2
(2) 2.3 Development of vacant parcels shall submit a
pesticides/toxicity report which identifies any potential
pesticide "hot spots" and recommends,.procedures for
necessary soil mixing or removal.
(2) 2.4 Any future development plans for structures over 60 feet
in height shall be submitted to the Federal Aviation
Administration and Airport Land Use Commission for review
and comment.
OF:br
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RESOLUTION NO. 3178
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF TUSTIN, APPROVING VARIANCE 93-004 TO INCREASE A
PORTION OF THE BUILDING HEIGHT FROM 35 FEET TO 45
FEET AND TO REDUCE THE REQUIRED LANDSCAPE SETBACKS
ALONG THE EDINGER AVENUE STREET FRONTAGE FROM 30
FEET TO APPROXIMATELY 24 FEET AND.ALONG DEL AMO
AVENUE FROM 30 FEET TO APPROXIMATELY 23 FEET ON THE
PROPERTY LOCATED AT ll00 EDINGER AVENUE.
The Planning Commission of the City of Tustin does hereby
resolve as follows:
I. The Planning Commission finds and determines as follows:
ae
That a proper application, Variance 93-004, has
been filed by Micro Center to increase a portion of
the building height from 35 feet to 45 feet and to
reduce the required landscape setbacks along the
Edinger Avenue street frontage from 30 feet to
approximately 24 feet and along Del A~o Avenue from
30 feet to approximately 23 feet on the prOperty
located at 1100 Edinger Avenue.
Be
That a public hearing was duly noticed, called and
held by the Planning Commission on August 23, 1993.
Ce
The Planning Commission has reViewed the subject
request for a variance to decrease the Landscape
setbacks on the Edinger and Del Amo Avenue street
frontages and has made the following findings:
Granting the variance shall not constitute a
grant of special privileges inconsistent with
the limitations upon other properties in the
vicinity and district in which the project is
situated in that there are other properties
within the PCESP on Del A mo with less than the
minimum 30 foot landscape setback. For
example, the property at 15222 Del Amo is
presently developed with a 22 foot landscape
setback ko the parking lot.
·
There are'unusual or exceptional circumstances
applicable to the property, including size,
shape, topography, location or surroundings
which deprive the subject property of
privileges enjoyed by other properties in the
area, in that with the existing structure
remaining and the site parking lot
reconfigured to comply with applicable drive
aisle widths and stall sizes, the maximum
amount of landscaping along the street
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Resolution No. 3178
Page 2
frontages are provided. In addition,, the
requirements to dedicate the ultimate right-
of-way also reduces the amount of land between
the existing structure and the street. Even
with the reduction in the..landscape setbacks,
the intent of the street scape concept to
provide parking lot screening, an 8 foot side
meandering sidewalk and street trees
consistent with the PCESP Landscape Concept
· Plan can be accomplished.
D. The Planning Commission has reviewed the subject
request for a variance to increase a portion of the
building height and has made the following
findings:
Granting the variance shall not constitute a
grant of special privileges inconsistent with
the limitations upon other properties in the
vicinity and district in which the project is
situated in that there are other uses and
structures within the Regional Center that
would permit higher maximum building heights.
The hotel could be a maximum of eight stories
or 120 feet. Office buildings could be a
maximum of 65 feet in height. The'original
Urban Design Plan of the PCESP envisioned that
the rehabilitation site would be demolished
and reconstructed with office buildings and a
hotel. The strict conformance to the height
limit would preclude this property from
enjoying the height limits of other uses
within the Planning Area to gain visibility
and exposure to the SR-55~ freeway as
encouraged by the PCESP.
·
There are unusual or exceptional circumstances
applicable to the property, including size,
shape, topoqrapby, ].oca~ion or surroundings
which deprive the subj'ect property~ of
privileges enjoyed by other properties in the
area, in that the site is not immediately
adjacent to the SR-55 freeway which increases
the need to utilize architectural features of
the building to provide visual opportunities.
In additions, the mass and scale of the
building presents a need to provide some
vertical articulation to add interest and
variety to the elevations as encouraged by the
PCESP Urban Design Guidelines. The towers and
the resultant height of 45 feet appear to be
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Resolution No. 3178
Page 3
E,
appropriate with the proposed ~levation
improvements and would still be well under the
120 maximum height limit for .hotels within
this Planning Area.
An Environmental Impact Report (EIR 90-1) for the
Pacific Center East Specific Plan has been
certified i~ conformance with the requirements of
the California Environmental Quality Act for the
subject project area.
II. The Planning Commission hereby approves Variance 93-004
to increase a portion of the building height from 35 feet
to 45 feet and to reduce the required landscape setbacks
along the Edinger Avenue street frontage f~om 30 feet to
approximately 24 feet and along Del Amo Avenue from 30
feet to approximately 23 feet on the property located at
1100 Edinger Avenue, subject to the conditions Contained
in Exhibit A of Planning Commission Resolution No. 3180,
incorporated herein by reference.
PASSED AND ADOPTED at a regular meeting of the Tustin'Planning
Commission, held on the 23rd day of August, 1993.
·
Chairperson
KATHLEEN CLANCY
Secretary
STATE OF CALIFORNIA
COIrNTY ~OF ORANGE
CITY OF TUSTIN
i, KATHLEEN CLANCY the undersigned, hereby certify that I am
the Recording Secretary of the Planning Commission of the City
of Tustin, California; that Resolution No. 3178 was duly
passed and adopted at a regular meeting of the Tustin Planning
Commission, held on the 23rd day of August, 1993.
~KATHLEEN CLkNCY
Recording Secretary
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RESOLUTION NO. 3179
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF TUSTIN APPROVING CONDITIONAL USE PERMIT 93-627,
AUTHORIZING A MASTER SIGN PROGRAM WHICH DEVIATES
FROM THE CITY'S SIGN CODE ON THE PROPERTY LOCATED
AT ll00 EDINGER AVENUE.
·
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The Planning Commission of the City of Tustin does hereby
resolve as follows:
I ·
The Planning Commission finds and determines as follows:
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A. ~hat a proper application, Conditional Use Permit
93-027 has been filed by Micro Center to establish
a Master Sign Plan which deviates from the City's
Sign Code on the property located at ll00 Edinger
Avenue.
S ·
A public hearing was duly noticed, called and held
by the Planning Commission on August 23, 1993.
C·
That establishment, maintenance and operation of
the proposed Master Sign Plan will not, under the
circumstances of this case, be detrimental to the
health, safety, morals, comfort or general welfare
of the persons residing or working in the
neighborhood of such proposed use, nor to the
general welfare of the City of Tustin as Rvidenced
by the following findings:
·
Although th~ individual sign area exceeds that
allowed by the Sign Code, the .allowed sign
area percentages of a building elevation would
not be exceeded ensuring that the signs appear
proportionate to the elevation on which they
are located;
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The tower sign on the north elevation provides
business identification while the smaller wall
sign provides directional information and
identifies the building address encouraging
proper site access and direction toward the
front entrance of the store on Del Amo Avenue.
·
The pole sign would result in the removal of
two nonconforming pole signs, one or, the
subject property and one on the adjacent
property to the west thus enhancing the
overall appearance of the PCESP 'area. The
proposed pole sign incorporates the existing
pole structure of the pole sign from the
adjacent property into its design and provides
architectural elements consistent with the
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Resolution No. 3179
Page 2
proposed building improvements to p~ovided a
consistent design treatment. This would not
set a precedent to establish pole signs within
the Pacific Center East Specific Plan area as
there are no other pole.signs" within the
Specific Plan area to be removed with any
future development, proposals.
II. The Planning Commission hereby approves Conditional Use
Permit 93-027 to establish a Master Sign Plan on the
property located at 1100 Edinger Avenue, subject to the
conditions contained in Exhibit A, a~tached.hereto.
PASSED AND ADOPTED at a regular meeting of the T~stin Planning
CommisSion, held on the 23rd day of August, 1993. ·
KATHLEEN CLANCY
Secreta~--y
Chairperson
· STATE OF CALIFORNIA )
COUNTY OF.ORANGE )
CITY OF TUSTIN )
I, KATHLEEN CLANCY the undersigned, hereby certify that I am
the Recording Secretary of the Planning Commission of the City
of Tustin, California; that Resc!ution No. 3179 was duly
passed and adop=.ed at a regular meeting of the Tustin Planning
Commission, held on the 23rd day of August, 1993.
TH LEEN CLXNCY -
Recording Secretary
EXHIBIT A
RESOLUTION NO. 3179
CONDITIONS OF APPROVAL
CONDITIONAL USE PERMIT 93-02? '(}(ICRO CENTER)'
GENERAL
(1) 1.1 The proposed project shall substantially conform with the
submitted plans date stamped August 23, 1993 on file with
the Community Development Department as herein modified
or as modified by the Director of Community Development
in accordance with this Exhibit. The Director of
community Development may also approve subsequent minor
modifications' to plans during plan check if such
modifications are found to be consistent with provisions
of the Pacific Center East Specific Plan.
(1) 1.2 Unless otherwise specified, the conditions contained in
the Exhibit shall be complied with prior to the issuance
of any sign permits for the project, subject to review
and approval by the Community Development Department.
(1) 1.3 Conditional Use Permit approval shall become null and
void unless all building/sign permits are issued within
eighteen (18) months of the date of this Exhibit.
(1) 1.4 The applicant shall sign and return an "Agreement to
Conditions Imposed" form prior to issuance of sign
permits.
(1) 1.5 The applicant and property owner shall hold harmless and
defend'the City of Tustin for all claims and liabilities
arising out of the City's approval of the entitlement
process for this project.
(1) 1.6 All graffiti shall be removed within 72 hours of a
complaint being transmitted by the City to the property
owner. Failure to maintain said structures and adjacent
facilities will be grounds for City enforcement of its
Property Maintenance Ordinance, including nuisance
abatement procedures.
SOURCE CODES
(1) STANDARD CONDITIONS
(2) PLANNING COMMISSION POLICY
(3) MUNICIPAL CODE
(4) UNIFORM BUILDING CODE
(5) RESPONSIBLE AGENCY
REQUIREMENT
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RESOLUTION NO. 3180
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF TUSTIN, RECOMMENDING TO THE REDEVEbOPMENT AGENCY
APPROVAL OF DESIGN REVIEW 93-020 (MICRO CENTER) FOR
VARIOUS SITE AND BUILDING IMPROVEMENTS AT 1100
EDINGER AVENUE.
The Planning Commission of the City of Tustin does hereby
resolve as follows:
The Planning Commission finds and determines as follows:
ao
That a proper application, Design Review 93-020,
was filed by Micro Center requesting approval of
various site and building improvements on the
property located at'll00 Edinger Aven~e.
Be
That the said application was considered by the
Planning Commission on August 23, 1993.
Ce
That an Environmental Impact Report (EIR 90-1) for
the Pacific Center East Specific . Plan has been
certified in conformance with the requirements of
the california Environmental Quality Act for the
subject project area.
De
This project has been determined to be ex%mpt from
the provisions of Measure "M" and CMP requirements
in that the project is below the thresholds for
Measure "M" and the CMP.
F·
The proposed retail use in permitted within the
Regional Center Land Use Designation of the Pacific
Center East Specific .Plan.
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Pursuant to Section 9272 of the Tustin Municipal
Code, the Commission finds that the location, size,
architectural features and general appearance of
the proposed development will not impair the
orderly and harmonious development of the areat the
present or future development therein, or the
occupancy as a whole. In making such findings, the
Commission has considered at least the following
items:.
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Height, bulk and area of buildings.
Setbacks and site planning.
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Exterior materials and colors.
Type and Pitch of roofs.
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Resolution No. 3180
Page 2
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Size and spacing of windoWs, doors and other
openings.
Towers, chimneys, roof structures', flagpoles,
radio and television antennae.
·
Landscaping, parking area design and traffic
circulation.
Location, height and standards of exterior
illumination.
·
Location and appearance of equipment located
outside of an enclosed structure%
10. Physical relationship of proposed structures
to existing structures in the neighborhood.
11. Appearance and design relationship of proposed
structure to existing structures and possible
feature structures in the neighborhood and
public thoroughfares.
12. Development Guidelines and criteria as adopted
by the City Council, particularly th~ Pacific
Center East Specific Plan.
II. The. Planning Commission hereby recommends to the
Redevelopment Agency approval of Design Review 93-020 for
various site and building modifications on the property
located at 1100 Edinger Avenue, subject to the conditions
contained in Exhibit A, attached hereto.
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Resolution No. 3180
Page 3
PASSED AND ADOPTED by the Planning Commission of the City of
Tustin, at a regular meeting on the'23rd day of August, 1993.
Recording Secreta~
Chairperson
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF TUSTIN ')
I, KATHLEEN CLANCY, the undersigned, hereby certify that I am
the Recording Secretary of the Planning Commission of the City
of Tustin, California; that Resolution No. 3180 was duly
passed and adopted at a regular meeting of the Tustin'Planning
Commission, held on the 23rd day of August, 1993.
KkTHLEEN CLANCY
Recording Secreta~%
EXHIBIT A
RESOLUTION NO. 3180
CONDITIONS OF APPROVAL
DESIGN REVIEW 93-020 (MICRO CENTER)
GENERAL
(1) 1.1 The proposed project shall substantially conform with the
submitted plans date stamped August 23, 1993 on file with
the Community Development Department as herein modified
or as modified by the Director of Community Development
in accordance, with this Exhibit. The Director of
Community Development may also approve subsequent minor
modifications to plans during plan check if. such
modifications are found to be consistent with provisions
of the Pacific Center East Specific Plan.
(1) 1.2 Unless otherwise specified, the conditions contained in
the Exhibit shall'be complied with prior to the issuance
of any building permits for the project, subject to
review and approval by the' Community Development
Department.'
(1) 1.3 Design Review approval shall become null and void~unless
all building permits are issued within eighteen (18)
months of the date of this Exhibit.
(1) 1.4 The applicant and property owner shall sign and return an
"Agreement to Conditions Imposed" form prior to issuance
of building permits.
(1) 1.5 The applicant and property owner shall hold harmless and
defend the City of Tustin for all claims and liabilities
arising out of the City's approval of the entitlement
process for this project.
(1) 1.6 Ail graffiti shall be removed within 72 hours of a
complaint being transmitted by the City to the property
owner. Failure to maintain said structures and adjacent
facilities will be grounds for City enforcement of its
Property Maintenance Ordinance, including nuisance
abatement procedures.
SOURCE CODES
(1) STANDARD CONDITION (5) RESPONSIBLE AGENCY REQUIREMENT
(2) CEQA MITIGATION (6) LANDSCAPING GUIDELINES
(3) UNIFORM BUILDING CODE/S (7) PC/CC POLICY
(4) DESIGN REVIEW
*** EXCEPTION
Exhibit A - Conditions of Approval
DR 93-020
Resolution No. 3180
Page 2
PLAN SUBMITTAL
2.1 At building plan check the following shall be submitted:
(2) A.
(3)
Construction plans, structural calculations, and
Title 24 energy calculations. Requirements of the
Uniform Building Codes, State Handicap and Energy
Requirements shall be complied with as approved by
the Building Official.
(2) B.
(3)
Preliminary technical detail and plans for all
utility installations including cable TV,
telephone, gas waster and electricity.
Additionally, a note on plans shall be included
stating that no field changes shall be made without
corrections submitted to and approved by. the
Building Official.
.(2) C.
(3)
Final grading and specification consistent with
the site plan and landscaping Plans and prepared by
a registered civil engineer for approval by the
Community Development Department and in conformance
with the City's standards for private improvements.
(2)
(3)
De
Any new foundation work shall include reinforcement
as reviewed and approved by the Community
Development Department.
(2) E.
Ail pavement "R" values shall be reviewed and
approved by the Community Development Department in
accordance with applicable City standards.
(2) F.
(3)
Ail structures shall be developed in accordance
with applicable seismic design provisions of the
Uniform Building Code and reviewed add approved by
the Community Development Department.
(1) 2.2 Submitted construction drawings shall be in confermance
with all development standards as applicable in the
Pacific Center East Specific Plan.
(1) 2.3 Submitted construction drawings shall be in conformance
with all applicable provisions of the City's Security
Ordinance, including exterior lighting requirements and
security hardware.
Exhibit A -.Conditions of Approval-
DR 93-020
Resolution No. 3180
Page 3
*** 2.4 Specifications at building plan check submittal shall
reflect material call-outs on all elevations of the
building and applicable details and notes added
indicating that all surfaces below the proposed
stucco/plaster wall system shall be coated and protected
with a graffiti resistant finish and/or material.
..
(2) 2.5 The applicant shall comply with all City policies
regarding short term construction emissions, including
periodic watering of the site and prohibiting grading
during second stage smog alerts and when wind velocities
exceed 15 miles per hour.
SITE AND BUILDING CONDITIONS
(1) 3.1 Provide exact details of all exterior door and window
(4) types, including but not limited to such information as
frame color and glass tint.
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(1) 3.2 Ail exterior colors to'be used shall be subject to review
(4) and approval of the Director of the Community Development
Department. Ail exterior treatments shall be coordinated
with regard to color, materials and detailing and noted
on submitted construction plans and elevations shall
indicate all colors and materials to be used.
(1) 3.3 Note on final plans that a six-foot high chain linked
fence shall be installed around the site prior to
building construction stages. Gated entrances shall be
permitted along the perimeter of the site for
construction vehicles.
(1) 3.4 Ail mechanical and electrical fixtures and equipment
(4) shall be adequately and decoratively screened from view
from any abutting street or highway. The screen.shall be
considered as an element of the overall design of the
project and shall blend with the architectural design of
buildings. All telephone and electrical boxes shall be
indicated on the building plans and shall be completely
screened. Electrical transformers shall be located
toward the interior of the project maintaining sufficient
distance to minimize visual impacts from Edinger and Del
Amo Avenues.
(1) 3.5 Exterior elevations of the buildings shall indicate any
(4) fixtures or equipment to be located on the roof of the
building, equipment heights and type of .screening.
Exhibit A - Conditions of ApprOval
DR 93-020
Resolution No. 3180
Page 4
(1) 3.6 No lights shall be permitted which may create any glare
of have a negative impact on adjoining properties. The
location and types of lighting shall be subject to the
approval of the Director of Community Development.
(1) 3.7 All exposed metal flashing shall be painted to match the
building.
(1) 3.8 Ail utilities exclusively servicing the site shall be
(2) undergrounded.
(2) 3.9 The applicant shall consult with the utility companies to
incorporate energy conservation measures which will
reduce stationary sources emissions.
(2) 3.10 The applicant shall comply with all South Coast Air
Quality Management District rules and regulations
related to the project.
(2) 3.11 Periodic cleaning (i.e. street sweeping) of paved areas
shall be performed to remove small particles size
sediments.with absorbed pollutants caused by uses of the
area.
(1) 3.12 The applicant shall comply with the City's Noise
(2) Ordinance and the use of properly maintained muffler
systems ~on all construction equipment.
*** 3.13 The southerly driveway which accesses Dei' Amo Avenue
shall be removed and closed at such time that the
midblock intersection on Del Amo Avenue as indicated on
the Planning Area 6 Concept' Plan is constructed and
adjacent access improvements are installed on the
property to the south of the subject property and
reciprocal access is granted to Micro Center.
Modifications to access to the loading area shall also be
modified consistent wi~h the PlanninG Area Ccncept Plan.
L~NDSCAPING, GROUI~S A/ND F_ARDSCAPE ELEI4ENTS
(1) 4.1 Submit at plan check complete detailed landscaping and
irrigation plans for all landscaping areas, consistent
with adopted City'of Tustin Landscaping and Irrigation
Guidelines. Provide summary table identifying plant
materials. The plant table shall list botanical and
common names, sizes, spacing, location and quantity of
the plant materials proposed. Show planting and beaming
details, soil preparation , staking, etc. The irrigation
plan shall show location and control of backflow
Exhibit A - Conditions of Approval
DR 93-020
Resolution No. 3180
Page 5
prevention devices, pipe size, sprinkler type, spacing
and coverage. Details for all equipment must be
provided.. Show all property lines on the landscaping and
irrigation plan, public right-of-way areas, sidewalk
widths, parkway areas, and wall locations. The Community
Development Department may request minor substitutions of
plant materials or request additional sizing or quantity
materials during plan check. Note on landscaping plan
that coverage of landscaping and irrigation materials is
subject to field inspection at project completion by the
Department of Community Development.
(7) 4.2 The submitted landscaping plans at plan check shall
reflect the following requirements:
A·
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Turf is unacceptable for grades over 25%. A
combination of planting materials must be used,
ground cover on large areas alone is not
acceptable. ·
Shrubs shall be a .minimum of 5 ~allon size and
shall be spaced a minimum of 5 fee~ on center.
C·
Ground cover shall be planted between 8 to 12
inches on center.
De
Fences, walls and equipment areas, shall be
screened with shrubs and/or vines and trees.
E ·
All plant materials shall be installed in a healthy
vigorous condition typical to the species and must
be maintained in a neat and healthy condition.
Maintenance includes but is not limited to
trimming, moving, weeding, removal of litter,
fertilizing, regular watering and replacement of
diseased or dead plants.
Buffer driveway and parkin~ areas with landscaping
berms when possible.
Landscape adjacent to the right-of-way shall be
coordinated with parkway landscaping.
*** 4.3 At such time that the property to west develops
(Assessor's Parcel No. 430-251-03), the railroad spur on
the west side of the subject property shall be removed
and area landscaping shall be installed in accordance
with the City's Landscaping and Irrigation Guidelines
within 90 days of the removal of the railroad spur.
Exhibit A - Conditions of Approval
DR 93-020
Resolution No. 3180
Page 6
Landscaping and Irrigation plans for said landscaping
shall be submitted to the Community Development
~Department for review and approval, prior to the
installation of landscaping within said area.
PUBLIC WORKS
(1) 5.1 A separate 24" X 36" street improvement plan showing all
proposed interim construction that would be constructed
as part of the initial project within the public right-
of-way will be required, which shall include but not be
limited to the following:
a)
b)
c)
d)
curb and gutter
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interim sidewalk'on Edinger Avenue at the existing
bus stop to the intersection of Edinger/Del hmo
drive apron
curb ramp
Said plan shall be prepared by a Registered Civil
Engineer.
In conjunction with the above plan a traffic control plan
as prepared by a California Registered Traffic Engineer
will also be required.
(1) 5.2 A separate 24" X 36" signing and striping plan showing
all modifications along Edinger Avenue and Del Amo Avenue
which are required as a result of this development will
be required. Said plan shall be prepared by a California
Registered Traffic Engineer.
(2) 5.3 Additional street right-of-way dedication will be
required from the property owne~ along the Edinger Avenue
frontage adjacen5 to this development, as indicated on a
plan on file in the Engineering Division and ±dentified
as "REF:NEWTOP2.DWG 7/8/93" and "Option ' 2". This
dedication should be in the form of an irrevocable offer
cf dedication at this time. Additionally, in order to
facilitate the Construction of the infrastructure
improvements in the future, it is required that an
irrevocable offer of dedication be executed for the
additional right-of-way at the following locations and
also as identified on said plan:
a)
Edinger Avenue and Del Amo Avenue adjacent to 1200
Edinger Avenue (AP .~430-253-03) .
Exhibit A - Conditions of Approval
DR 93-020
Resolution No. 3180
Page 7
b) Del Amo Avenue adjacent to 15222 Del Amo Avenue (AP
#430-253-09) .
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All offers of dedication shall also state that the City
of Tustin shall be permitted 'to obtain, at no cost, a
right-of-entry for all on-site construction adjustment
and transitions when the ultimate street improvements are
constructed. The right-Of-entry shall terminate on the
date that the Notice of Completion is recorded at the
Orange County Recorder's office.
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A legal description and sketch of the area for Offer to
Dedicate, along with the legal Vesting, shall be provided
to the Engineering Division.
(1). 5.4 Construction of a curb ramp per City Standard No. 124
will be required at the southwesterly curb return of
Edinger Avenue and Del Amo Avenue. This may require
dedication of additional right-of-way at the corner cut-.
· . off in order to accommodate the curb ramp. If additional
right-of-way is required, the Engineering Division will
need a legal description and sketch of the dedication
along with a copy of the legal vesting on the property.
*** 5.5 Construction of a temporary'sidewalk (4 feet minimum) to
comply with ADA requirements along Edinger Avenue
adjacent to the existing bus stop will be required. This
would extend from the Beginning of Curb Return on Edinger
Avenue to approximately 100 feet westerly where the bus
stop is located.
(5) 5.6 Removal of the easterly drive on Edinger Avenue and. the
northerly drive on Del A mo Avenue along with construction
of full height curb and gutter will be required. In
conjunction with the drive on Edinger Avenue, the
existing grate inlet catch basin deck will require
reconstruction with full height curb.
(5) 5.7 The site plan indicates' that the two ~rives on Del Amo
A~enue will be radius type drives. This type of drive
will require additional street right-of-way dedication
and construction of curb ramps per 'City Standard No.
10SE. The Engineering Division will need a legal
description and sketch of this right-of-way dedication
prior to issuance of permits. Also, the northerly
BCR/ECR'of the northerly drive should be no closer than
200 feet from the BCR/ECR at Edinger Avenue.
Additionally, the maximum curb return radius for this
type of drive is 25 feet.
Exhibit A - Conditions of Approval
DR 93-020
Resolution No. 3180
Page 8
(5) 5.8 The drive on Edinger Avenue will need to be signed on-
site for right turn only.
(5) 5.9 The westerly drive on Edinger ~venue shall be
reconstructed with a radius type drive per City Standard
No. 10SE.. In order to accomplish this, the existing
sidewalk culvert will need .to be removed along with a
certain amount of pavement reconstruction. In addition,
the existing median gap needs to be closed at the area
where the railroad spur line once existed and the median
extended easterly past the drive to prevent left turn
ingress/egress.
Plans for this work have previously been prepared .and
approved. Only minor revisions to the plans are needed
prior to commencement of construction. A copy of the
plans has been included as Attachment C (File R-1500,
K.W. Lawler and Associates).
(5) 5.10 Prior to issuance of building permits, the property owner
shall be required to bond for the ultimate street
improvements adjacent to this development, an amount as
determined by the City Engineer, including, but not
limited.to:
a .
curb and gutter
sidewalks
pavement
utility undergrounding
storm drain, water and sewer
one third of the cost for the future'traffic signal
reconstruction at Edinger Avenue and Del Amo Avenue
l~ndscaping, including seven (7) date palms on Del
Amo
street lights
signing and striping
FIRE DEPAR~
(5) 6.1 Prior to the issuance of any buildin~ permits for
combustible construction, evidence that a water supply
for fire protection is available shall be submitted to
and approved by the Fire Chief. Fire hydrants shall be
in place and operational to meet requirements and fire
flow prior to commencing combustible materials. Indicate
on the site plan the proposed location for the relocated
fire hydrant and the locations of all other fire hydrants
on or near the site.
Exhibit A - Conditions of Approval
DR 93-020
Resolution No. 3180
Page 9
(5) 6.2 Prior to the issuance of any building permits, all
underground piping for automatic fire '.extinguishing
systems shall be approved. Plans for an automatic fire
extinguishing system shall be approved by the Fire Chief
prior to installation. Such systems shall be operational
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prior to the issuance of a certificate of use and
occupancy. Provide plans for the changes to the
automatic fire sprinkler system for the Fire Chief to
review and approve.
(5) 6.3 The following notes shall be provided on the site plan:
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a.
Fire Department Final Inspection Required.
Schedule inspection 2 days in advance, Phone
832-1011.
S ·
Locations and classifications of extinguisher to be
determined by fire inspector.
C ·
Storage, dispensing or use of any flammable and
combustible liquids, flammable and compressed
gasses and other hazardous materials shall comply
with Uniform Fire Code Regulations.
D·
Buildings(s) not approved for high piled
combustible storage. Materials in closely packed
piles shall not exceed 15 feet ~D height, 12 feet
on pallets or in racks and 6 feet for 'tires,
plastics and some flammable liquids if high stock
piling, comply with UFC, Art. 81 and NFPA Std. 231,
231C and 231D.
E ·
Plans of modifications to or new fire protection,
detector or alarm system(s) shall be approved by
the Fire Department prior to installation.
(5) 6.4 Prior to the issuance of any certificate of cccupancy,
fire alal~, plans shall be submi'~ted for &pprcval by the
Fire Chief and installed. Every building used for an
educational purpose shall have a ~ire alarm system.
(5) 6.5 Pricr to the issuance of any building permits, a site
plan shall be submitted for approval by the Fire Chief.
Extend the proposed walkway for the south rear of the
structure to the area beyond the screen wall.
(5) 6.6 Prior to the issuance of the building permit, provide to
the Fire Chief for approval the ~architectural plans.
Accompany these with a letter of intended use. Include
Exhibit A - Conditions of Approval
DR 93-020
Resolution No. 3180
Page 10
the followin9 information: type of storage, height of
storage, any flammable, combustible or hazardous
materials for use or storage, square footage of any area
proposed' for high pile stock and 'the use of the
educational area.
FEES
(1) 7.1 Prior to issuance of any buildin~ permits, payment shall
be made of all required fees including, but not limited
to:
a ·
Orange County Sanitation District No. 7 sewer
connection fees.
b .
All applicable buildin9 and Fire Department,
grading, private improvement and building plan
check and permit fees to the Community Development
Department.
C ·
Construction Permit Fees and Inspection Char~es to
the Public Works Department.
de
Within forty-eight (48) hours of approval of the
subject project, the applicant shall deliver to the
Community Development Department, a cashier's check
payable to the COUNTY CLERK in the amount of $25.00
(twenty-five dollars) pursuant to AB 3158, Chapter
1706, Statutes of 1990, enable the City to file the
Notice of Determination required under Public
Resources Code Section 21151 and 14 Cal. Code of
Regulations 15094. If within such forty-eight (48)
hour period that the applicant has not delivered to
the Community Development Department the above-
noted check, the approval for the project granted
herein shall be considered automatically null and
void.
In. addition, should the Department of Fish and Game
reject the Certificate of Fee Exemption filed with
the Notice of Determination and require payn%ent of
fees, the applicant shall deliver to the Community
Development Department, within forty-ei~ht (48)
hours of notification, a cashier's check payable to
the COUNTY CLERK in the amount of $850.00 (eight-
hundred fifty dollars) pursuant to AB 3158, Chapter
1706, Statutes of 1990. If this fee is imposed,
the subject project shall not be operative, vested
or final unless and until the fee is paid.
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RESOLUTION NO. RDA 93-13
A 'RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE
CITY OF TUSTIN APPROVING DESIGN REVIEW 93~020
(MICRO CENTER) FOR VARIOUS SITE AND BUILDING
IMPROVEMENTS AT 1100 EDINGER AVENUE.
The Redevelopment Agency of the City of Tustin does hereby
resolve as follows:
I. The Redevelopment Agency finds and determines as follows:
ke
That a proper application, Design Review 93-020,
was filed by Micro Center requesting approval of
various site and building improvements on the
property located at il00 Edinger Avenue.
Be
That the said application was considered by the
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Planning Commission on August 23, 1993 and by the.
Redevelopment Agency on September 7, 1993.
C~
That an Environmental Impact Report (EIR 90-1) for
the Pacific Center East Specific Plan has been
certified in conformance with the requirements of
the California Environmental Quality Act for the
subject project area.
De
This project has been determined to be exempt from
the provisions of Measure "M" and CMP requirements
in that the project is below the thresholds for
Measure "M" and the CMP.
Ee
The proposed retail use in permitted within the
Regional Center Land Use Designation of the Pacific
Center East Specific Plan.
F~
Pursuant to Section 9272 of the Tustin Municipal
Code, the Commission finds that the location, size,
architectural features and general appearance of
the proposed development will not impair the
orderly and harmonious development of the area, the
present or future development therein, or the
occupancy as a whole. In making such findings, the
Commission has considered at least the following
items:
1. Height, bulk and area of buildings.
2. Setbacks and site planning.
3. Exterior materials and colors.
4. Type and pitch of roofs.
5
6
9
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20
22
23
24
25
26
27
25
Resolution No. 93-13
Page 2
·
Size and spacing of windOws, doors ~nd other
openings.
·
Towers, chimneys, roof structures, flagpoles,
radio and television antennae.
·
Landscaping, parking area design and traffic
circulation.
·
Location, height and standards of exterior
illumination.
9. Location and appearance of equipment located
outside of an enclosed structure.
10. Physical relationship' of proposed structures
to existing structures in the neighborhood.
11. Appearance and'design relationship of proposed
structure to existing structures and possible
feature structures in the neighborhood and
public thoroughfares.
12. Development Guidelines and criteria as adopted
by the City Council, particularly the Pacific
Center East Specific Plan. '
II. T~e Redevelopment Agency hereby approves Design Review
93-020 for various site and building modifications on the
property located at ll00 Edinger Avenue, subject to the
conditions contained in Exhibit A of Planning Commission
Resolution No. 3180, incorporated herein by reference.
PASSED AND ADOPTED at a regular meeting of the Tustin
Community Redevelopment Agency, held on the 7th day of
September, 1993.
JIM P~TTS
Rede~lopment Chairperson
City C~erk
City of Tustin
REDEFELOPKENT AGENCY RESOLUTION CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF TUSTIN )
SS
RESOLUTION NO. RDA 93-13
Mary E. Wynn, City Clerk and Recording Secretary of the Community
Redevelopment Agency of the City of Tustin, California, does hereby certify
that the whole number of the members of the Community Redevelopment Agency
is five; that the.above and foregoing resolution was passed and adopted at
a regular meeting of the Tustin Community Redevelopment Agency held on the
7th day of September, 1993, by the following vote:
AGENCY MEMBER AYES:
AGENCY MEMBER NOES:
AGENCY MEMBER ABSTAINED:
AGENCY MEMBER ABSENT:
Potts, Saltarelli, Pontious, Puckett, Thomas
None
None
None
ATTACHMENT 7
SITE PLAN
ELEVATION PLANS
LANDSCAPE PLANS
SIGN PLANS
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ATTACHMENT 8
AGREEMENT TO CONDITIONS IhIPOSED
AGREEMENT TO CONDITIONS IMPOSED
DESIGN REVIEW 93-020, VA/~ 93-004 AND
CONDITIONAL USE PERMIT 93-027 (MICRO CENTER)
We,. the undersigned, hereby agree to comply with all conditions
imposed by the Community Development Department and/or Planning
Commission of the City of Tustin on approval of Design Review 93-
020, Variance 93-004 and Conditional Use Permit 93-027 with
conditions as stated in Planning Commission Resolution Nos. 3177,
3178, 3179 and 3180.
Property Owner
Signature, Title
Applicant
Date
Dat~ /
ATTACHMENT 9
AGREE~NT TO BE RECORDED
AFFECTING REAL PROPERTY
ATTACHMENT NO. 9
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
CITY OF TUSTIN COMMUNITY
REDEVELOPMENT AGENCY
Attention: Christine Shingleton
300 Centennial Way
Tustin, CA 92680
(Space Above for Recorder)
This Agreement is recorded at
the request and for the benefit
of the City of Tustin Community
Redevelopment Agency and is
exempt from payment of a
recording fee pursuant to
Government Code Section 6103.
CITY OF TUSTIN COMMUNITY
REDEVELOPMENT AGENCY
By:
Its:
Dated: , 1994
CITY OF TUSTIN COMMUNITY REDEVELOPMENT AGENCY
AGREEMENT TO BE RECORDED AFFECTING REAL PROPERTY
THIS AGREEMENT is entered into this day of ,
1994, by and among the CITY OF TUSTIN, a municipal corporation (the
"City"), the CITY OF TUSTIN COMMUNITY REDEVELOPMENT AGENCY, a
public body, corporate and politic (the "Agency"), MICRO
ELECTRONICS INC., a Delaware Corporation (the "Tenant") and
CATELLUS DEVELOPMENT CORPORATION, a Delaware Corporation (the
"Property Owner"), with reference to the following:
A. The Tenant is the lessee and the Property Owner is the
fee owner of record of that certain real property (the "Property")
located in the County of Orange, State of California legally
described in the attached Exhibit A. The Property is referred to in
the "DDA" (defined in paragraph "C" hereof) as the Site.
paqe 1 of 5
B. The Property is located in the South Central
Redevelopment Project 'Area (the "Project") and is subject to the
provisions of the Redevelopment Plan for the Project adopted by
Ordinance No. 890 and amended by Ordinance No. 939 by the City
Council of the City of Tustin. The Agency has full power and
jurisdiction in respect to the Property pursuant to the
Redevelopment Plan.
C. The City, the Agency, the Tenant and the Property Owner
have'entered into a Disposition and Development Agreement dated as
of June 20, 1994 concerning the development and use of the Property
(the "DDA") which DDA is on file with the Agency as a public record
and is incorporated herein by reference and which DDA provides for
the execution and recording of this document. Except as otherwise
expresslyprovided in this Agreement, all terms shall have the same
meanings as set forth in the DDA.
NOW, THEREFORE, THE CITY, THE AGENCY, THE TENANT AND THE
PROPERTY OWNER AGREE AS FOLLOWS:
1. The Tenant and the Property Owner shall have the right
and it covenants and agrees on behalf of its successors and
assigns, to use the Property for the following purposes only:
The Tenant and the Property Owner shall develop or cause to be
developed a retail use as more particularly set forth in the DDA.
The Tenant covenants and agrees that during construction and
thereafter, the Tenant shall devote the Site to the uses specified
in the Redevelopment Plan. Specifically this site shall be used
for a "Micro Center, The Electronic Superstore" of approximately
45,600 square feet in size. Operation of the Site for the Use by
the Tenant shall be required to continue without interruption
greater than thirty (30) days for a period of ten (10) years from
the issuance of a Certificate of Occupancy. Additionally, the
Tenant, such successors and assignees, shall comply with all
applicable laws regarding their operations and use of the Site.
The foregoing covenant shall run with the land.
Prior to end of ten (10) years or the term of this Agreement,
whichever is longer, neither the Property Owner nor the Tenant
shall change, or cause to be changed, the Use, without the'prior
written approval of the Agency. Approval to a change of the Use
shall be at the sole discretion of the Agency, which shall have no
obligation to approve such change.
2. The Tenant and the Property Owner, on behalf of
themselves and their successors, assigns and each successor in
Page 2 of 5
interest to the property or any part thereof, hereby covenants and
agrees:
(a) To use, devote and maintain the property and each
part thereof, for the purposes specified in the redevelopment Plan.
(b) To 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, age, 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 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 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, age, 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
Paqe 3 of 5
practices of discrimination or segregation
with reference to the selection, location,
number, use or occupancy of tenants, lessees,
sublessees, subtenants or vendees in the
premises herein leased."
(3) In contracts: "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, 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."
3 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 Property, nor shall the Tenant and the
Property'Owner, jointly and separately, for themselves or any
person claiming under or through them, 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.
4. The agreements and covenants set forth in this Agreement
shall run with the land. The agreements and covenants contained in
Section 1 herein shall remain in effect for the periods provided
therein.
The agreements and covenants contained in Sections 2 and
3 herein pertaining to the uses of the Property shall remain in
effect from the date hereto until the expiration date of the
Redevelopment Plan as said expiration date may be extended by
proper amendment to the Redevelopment Plan. Covenants regarding
discrimination shall remain in effect in perpetuity.
IN WITNESS WHEREOF, the City, the Agency, the Tenant and the
Property Owner have executed this Agreement.
(Signatures on following page)
Paqe 4 of 5
CITY OF TUSTIN:
BY-
Thomas Saltarelli
Mayor
DATE:
APPROVED AS TO FORM:
BY:
Lois Jeffrey
City Attorney
ATTESTED:
Mary Wynn
City Clerk
TUSTIN COMMUNITY REDEVELOPMENT AGENCY:
BY: DATE:
Thomas Saltarelli
Chairman
APPROVED AS TO FORM:
BY:
Lois Jeffrey
Agency Counsel
ATTESTED:
Mary Wynn
Secretary
CATELLUS DEVELOPMENT CORPOP. ATION:
BY: DATE:
ITS:
MICRO ELECTRONICS, INC.:
BY: DATE:
ITS:
RZ IMMER\MICRCENT\DDAATT9 . TXT
Page 5 of 5
ATTACHMENT 10
CALCULATION OF ANNUAL ASSISTANCE
AND 1993 PRESENT VAL~
PAYMENT
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