CONTRACT 6261-4 OtherAgreement No. 6261-4
CONSTRUCTION ACCESS LICENSE AGREEMENT
EFFECTIVE DATE: As of February 6th , 2021
PARTIES: THE CITY OF EL SEGUNDO, a general law City and
municipal corporation ("Licensor") and
ES CENTERCAL, LLC, a Delaware limited liability
company ("Licensee"),
RECITALS:
WHEREAS, pursuant to that certain Due Diligence and Recreation Ground Lease
Agreement entered into by and between Licensor and Licensee, dated February 6th , 2021 (as
amended, the "Lease"), Licensor leased certain real property in the City of El Segundo, County of
Los Angeles, State of California, as more particularly described on Exhibit A-1 and made a part
hereof (the "Premises") to Licensee for the operation of a driving range and related clubhouse
with restaurant, bar, lounge, grill and event space, subject to the terms and conditions of the Lease;
WHEREAS, Licensor has agreed to enter into this Construction Access License Agreement
(this "License") with Licensee to grant Licensee the right to have access to (i) the Golf Course, as
described on Exhibit A-2 and (ii) the Premises (collectively, the "Construction Access Area") as
necessary to construct the Golf Course Improvements and the Premises Improvements
contemplated by the Lease (the "Work");
WHEREAS, in connection with the Work, Licensee requires construction access to the
Construction Access Area; and
WHEREAS, Licensor desires to make the Construction Access Area available for the
construction of the Work and for the use of Licensee in accordance with the terms and conditions
of this License and the Lease.
AGREEMENT
1. DEFINITIONS: All terms that are not otherwise defined herein shall have the
same meaning as is set forth for such term in the Lease.
2. Grant of License. Subject to the terms and conditions hereof, Licensor hereby
grants to Licensee the right to use the Construction Access Area for construction of the Work and
for construction access as hereinafter provided. Licensor's grant hereunder shall in no way operate
to confer upon Licensee any other interest, status, or estate of any kind other than a license.
Licensor shall not be obligated to provide Licensee any other services in connection with
Licensee's use of the Construction Access Area.
2. Term. The term of this License shall begin upon the date set forth above and terminate
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Agreement No. 6261-4
once the Work is complete in accordance with the Plans and Specifications (the "Term").
3. Permitted Uses. The permitted use of the Construction Access Area during the Term shall
be for access as necessary to construct and perform the Work. Licensor agrees that so long as
Licensee is in compliance with all of the terms and conditions of this License, no future license
will be granted on the Construction Access Area that will interfere with Licensee's permitted use
of the Construction Access Area.
4. Compensation. As consideration of the grant of the license, Licensee has paid Licensor
the sum of One Dollar ($1.00), the receipt and sufficiency of which is acknowledged.
5. Covenant of Cooperation. Licensor and Licensee each covenant and agree to reasonably
cooperate with each other and to use commercially reasonable efforts, at no cost, expense or
liability to Licensor or Licensee, to facilitate the orderly and efficient construction of the Work.
6. Insurance, Liability and Indemnity:
(a) Licensee agrees that it will, at all times during the Term at its sole expense, carry
and keep in full force and effect, the following insurance: (1) umbrella liability insurance with
limits of at least $5,000,000 per occurrence for bodily injury and property damage liability, (2)
worker's compensation insurance; (and (3) any other form or forms of insurance as Licensor may
reasonably require from time to time. Such insurance policies shall: (i) be written and issued by
good and responsible insurance companies licensed to do business in the State of California; (ii)
name Licensor or any other party which Licensor may specify as additional insureds; (iii) shall
contain an undertaking by the insurer(s) to notify Licensor in writing, by certified or registered
United States mail, return receipt requested, not less than fifteen (15) days before cancellation, or
other termination thereof; (iv) shall be written as primary policy coverage, not contributing with
or in excess of any coverage which Licensor may carry; and (v) shall include a waiver of
subrogation endorsement (or equivalent) in favor of Licensor and its respective agents, employees,
partners, directors and officers. Licensor shall not liable to Licensee (and Licensee hereby waives
all right of recovery by way of subrogation against Licensor) from any and all claims for loss or
damage covered by the insurance required hereinabove, irrespective of whether such loss or
damage results from Licensor's negligence or that of any of its agents, servants or employees.
Each such policy shall be delivered to Licensor prior to the commencement of the License Term.
In addition to the undertaking in (iii) above it shall also be the Licensee's responsibility to provide
separate notice of any cancellation, or other termination thereof with at least the same number of
days as required of the insurer.
(b) To the fullest extent permitted by applicable law, Licensor shall not be liable to
Licensee, its employees, agents, licensees, invitees, or any other persons for any claims, damages
or injuries resulting from any bodily injury or death or loss or damage to property, whether or not
due to the acts or omissions of Licensor, its employees, officers, officials, agents, invitees,
contractors, volunteers or any other person or entity, in, or about the Construction Access Area.
Licensee agrees to and does hereby defend, indemnify and hold Licensor harmless from and
against any and all actions, claims, costs, damages, expenses, fees, judgments, liabilities or suits
arising from or out of, or in connection with, (i) acts or omissions of Licensee or Licensee's agents,
contractors, employees, invitees or others for whom Licensee is responsible (collectively,
"Licensee's Agents"), in, on or about the Premises, (ii) any damage, death or injury to person or
property in, on or about the Premises caused by Licensee's Agents, and/or (iii) any breach of the
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Agreement No. 6261-4
terms of this License by Licensee or Licensee's Agents. The foregoing indemnity shall survive
the expiration or sooner termination of this License.
8. Restoration of the Construction Access Area. As soon as reasonably practicable
following the completion of Work, Licensee, at no cost or expense to Licensor, shall cause those
portions of the Construction Access Area not improved or otherwise modified as contemplated by
the Lease to be restored to substantially the same condition that existed at the commencement of
the Term, and cause the removal of all construction debris from the Construction Access Area.
9. Assignment: Except as provided to the contrary herein, Licensee shall have no right,
power or authority to transfer or assign this License, in whole or part, nor shall Licensee have any
right, power or authority to sublet, license, or otherwise permit occupancy or use by any person or
entity other than Licensee, its employees, and its contractors and subcontractors, of the
Construction Access Area or any part thereof. Licensor agrees and acknowledges that some or all
of the Work may be performed by Topgolf USA El Segundo LLC, a Delaware limited liability
company ("T'opt;li"'). In this regard, Licensee shall have the right to assign this License in whole
or in part to Topgolf in connection therewith. No such assignment or partial assignment will be
effective unless in writing and until Topgolf provides Licensor with proof of insurance required
herein.
10. Defaults: If Licensee fails to maintain any insurance required to be maintained by
Licensee hereunder, or otherwise violates any of the terms or conditions hereof, or creates a hazard
to the health and/or safety of any occupant of the Construction Access Area, then and in any such
event, in addition to any and all rights and remedies allowed at law or in equity, this License and/or
Licensee's right to use the Construction Access Area shall be automatically revoked and Licensee
shall surrender and vacate, and cause its contractors and subcontractors to vacate, the Construction
Access Area immediately (failing which Licensor may enter into and repossess said Construction
Access Area with or without process of law and remove all persons and property of Licensee and
that of Licensee's contractors and subcontractors therefrom if the same has not previously been
removed, and for the purpose of such entry and repossession, LICENSEE WAIVES ANY
NOTICE TO QUIT OR ANY OTHER NOTICE PROVIDED BY LAW OR OTHERWISE TO
BE GIVEN IN CONNECTION THEREWITH). In addition, Licensee will pay all costs and fees
(including, but not limited to, court costs and reasonable attorneys' fees) incurred by Licensor in
connection with obtaining possession of said Construction Access Area or in the enforcement of
any covenant, condition or agreement herein contained, whether through legal proceedings or
otherwise and whether or not any such legal proceedings be prosecuted to a final judgment. A
waiver by Licensor of any default by Licensee in the performance of any of the covenants, terms
or conditions hereof shall not constitute or be deemed a waiver of any subsequent or other default.
A delay on the part of Licensor to exercise or enforce any of its rights, powers or privileges
hereunder shall not be deemed a waiver of such right, power or privilege. The rights and remedies
of Licensor under this License shall be cumulative and in addition to any other rights and remedies
given to Licensor by law. The exercise by the Licensor of any right or remedy herein provided
shall not impair Licensor's rights to exercise any other remedy provided by law.
11. Rights Reserved by Licensor: Licensor reserves the right to enter the Construction
Access Area at all times (a) to inspect and repair the Construction Access Area as Licensor may
deem reasonably necessary or desirable, (b) for any purpose whatsoever relating to the safety,
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Agreement No. 6261-4
protection or preservation of the Construction Access Area, and (c) for any other purpose which
does not prevent the use of the Construction Access Area in accordance with the terms hereof. In
any such event, the Licensor shall take reasonable measures to avoid undue disturbance to
Licensee's use of the Construction Access Area, however, Licensee agrees to reasonably cooperate
with Licensor and to relocate the Construction Access Area if Licensor requests.
12. Notices: All notices hereunder shall be delivered as provided in the Lease.
13. General Provisions: The captions in this License are inserted only as a matter of
convenience and for reference, and in no way define, limit or describe the scope or intent of such
paragraph or of this License. The terms, covenants and conditions contained in this License shall
bind and inure to the benefit of the Licensor and Licensee, and their respective heirs, legal
representatives, successors and assigns; provided that, nothing in this Section 13 shall be deemed
to permit any transfer, assignment, sublease, license or other arrangement in violation of Section
9 hereof. This License and all of the rights of Licensee hereunder are expressly subordinate to the
provisions of any mortgage, deed of trust encumbering the Premises as provided in the Lease. No
change, waiver or modification of the terms hereof shall be binding unless in writing and signed
by the parties hereto. The interpretation of this License shall be governed by the laws of the State
of California, without regard to the conflict of laws principles thereof. This License constitutes
the entire agreement between the parties with respect to the Construction Access Area and the use
thereof.
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Agreement No. 6261-4
IN WITNESS WHEREOF, Licensor and Licensee have caused these presents to be signed
(duly executed and attested) and sealed the day and the year first above written.
WITNESS:
r
LICENSOR:
THE CITY OF EL SEGUNDO
By;
Name-' �::'.._.......
Title:—"......m _t
WITNESS: LICENSEE:
ES CENTERCAL, LLC
By:_
Name:.
Title:
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Agreement No. 6261-4
IN WITNESS WHEREOF, Licensor and Licensee have caused these presents to be signed
(duly executed and attested) and sealed the day and the year first above written.
WITNESS: LICENSOR:
THE CITY OF EL SEGUNDO
By:__
Name:
Title:
WITNESS: LICENSEE:
ES CENTERCAL, LLC
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Project: Topgolf El Segundo
Job No: 19-160
Date: 2021-02-04
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Agreement No. 6261-4
Exhibit A-1
Topgolf Venue & Parking Property Legal Description
Per Lot Line Adjustment recorded 02/03/21 as Instrument No. 20210191742, O.R.
PARCEL 2:
IN THE CITY OF EL SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, BEING THAT
PORTION PARCEL 1 OF PARCEL MAP NO. 17749 AS PER MAP FILED IN BOOK 207, PAGES 56
THROUGH 60, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, LYING SOUTHERLY OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE MOST EASTERLY CORNER OF SAID PARCEL; THENCE ALONG THE EAST LINE
OF SAID PARCEL NORTH 44020'30" WEST, 301.26 FEET TO THE TRUE POINT OF BEGINNING;
THENCE LEAVING SAID EAST LINE ALONG THE FOLLOWING SEVEN (7) COURSES:
1. SOUTH 81 °23'50" WEST, 86.36 FEET;
2. SOUTH 36034'02" WEST, 49.32 FEET;
3. SOUTH 81 °23'50" WEST, 491.83 FEET;
4. SOUTH 26006'34" WEST, 4.80 FEET;
5. SOUTH 82°50'24" WEST, 85.69 FEET;
6, SOUTH 30000'00" WEST, 33.73 FEET;
7, SOUTH 90000'00" WEST, 217.98 FEET TO A POINT IN THE WEST LINE OF SAID PARCEL 1,
SAID POINT BEING DISTANT 1,272.63 SOUTHERLY FROM THE 2-INCH IRON PIPE WITH
BRASS CAP STAMPED "RCE 17889" AT THE SOUTHWESTERLY TERMINUS OF THE
COURSE SHOWN ON SAID PARCEL MAP NO. 17749 AS "N 89' 56' 00" E 170.00' "
TOGETHER WITH THE LAND DESCRIBED IN THE GRANT DEED RECORDED JULY 18, 1995 AS
INSTRUMENT NO. 95-1161504, OF OFFICIAL RECORDS.
TOGETHER WITH THE LAND DESCRIBED IN THE GRANT DEED RECORDED JUNE 19, 1996 AS
INSTRUMENT NO. 96-967352, OF OFFICIAL RECORDS.
THE ABOVE DESCRIBED PARCEL CONTAINS 10.674 ACRES, MORE OR LESS.
Agreement No. 6261-4
U?,,, d N, Exhibit A-2
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Project: To old El Segundo
Job No: 19-160
Date: 2021-02-04
Golf Course Property Legal Description
Per Lot Line Adjustment recorded 02/03/21 as Instrument No. 20210191742, O.R.
PARCEL 1:
IN THE CITY OF EL SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, BEING THAT
PORTION PARCEL 1 OF PARCEL MAP NO. 17749 AS PER MAP FILED IN BOOK 207, PAGES 56
THROUGH 60, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE MOST EASTERLY CORNER OF SAID PARCEL; THENCE ALONG THE EAST LINE
OF SAID PARCEL NORTH 44020'30" WEST, 301.26 FEET TO THE TRUE POINT OF BEGINNING;
THENCE LEAVING SAID EAST LINE ALONG THE FOLLOWING SEVEN (7) COURSES:
1, SOUTH 81 °23'50" WEST, 86.36 FEET;
2, SOUTH 36034'02" WEST, 49.32 FEET;
3. SOUTH 81 °23'50" WEST, 491.83 FEET;
4. SOUTH 26006'34" WEST, 4.80 FEET;
5. SOUTH 82°50'24" WEST, 85.69 FEET;
6, SOUTH 30000'00" WEST, 33.73 FEET;
7, SOUTH 90°00'00" WEST, 217.98 FEET TO A POINT IN THE WEST LINE OF SAID PARCEL 1,
SAID POINT BEING DISTANT 1,272.63 SOUTHERLY FROM THE 2-INCH IRON PIPE WITH
BRASS CAP STAMPED "RCE 17889" AT THE SOUTHWESTERLY TERMINUS OF THE
COURSE SHOWN ON SAID PARCEL MAP NO. 17749 AS "N 89' 56' 00" E 170.00"'
EXCEPTING THEREFROM THE LAND DESCRIBED IN THE GRANT DEED RECORDED MARCH 12,
1999 AS INSTRUMENT NO. 99-0411887, OF OFFICIAL RECORDS.
THE ABOVE DESCRIBED PARCEL CONTAINS 15.870 ACRES, MORE OR LESS.