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2014 Mar 18 - CC PACKETAGENDA
EL SEGUNDO CITY COUNCIL
COUNCIL CHAMBERS - 350 Main Street
The City Council, with certain statutory exceptions, can only take action upon properly posted and listed
agenda items. Any writings or documents given to a majority of the City Council regarding any matter on
this agenda that the City received after issuing the agenda packet are available for public inspection in
the City Clerk's office during normal business hours. Such Documents may also be posted on the City's
website at www.elsegundo.org and additional copies will be available at the City Council meeting.
Unless otherwise noted in the Agenda, the Public can only comment on City - related business that is
within the jurisdiction of the City Council and /or items listed on the Agenda during the Public
Communications portions of the Meeting. Additionally, the Public can comment on any Public Hearing
item on the Agenda during the Public Hearing portion of such item. The time limit for comments is five (5)
minutes per person.
Before speaking to the City Council, please come to the podium and state: Your name and residence
and the organization you represent, if desired. Please respect the time limits.
Members of the Public may place items on the Agenda by submitting a Written Request to the City Clerk
or City Manager's Office at least six days prior to the City Council Meeting (by 2:00 p.m. the prior
Tuesday). The request must include a brief general description of the business to be transacted or
discussed at the meeting. Playing of video tapes or use of visual aids may be permitted during meetings if
they are submitted to the City Clerk two (2) working days prior to the meeting and they do not exceed five
(5) minutes in length.
In compliance with the Americans with Disabilities Act, if you need special assistance to
participate in this meeting, please contact City Clerk, 524 -2305. Notification 48 hours prior to the
meeting will enable the City to make reasonable arrangements to ensure accessibility to -this
meeting.
REGULAR MEETING OF THE EL SEGUNDO CITY COUNCIL
TUESDAY, MARCH 18, 2014 — 5:00 PM
5:00 P.M. SESSION
CALL TO ORDER
ROLL CALL
PUBLIC COMMUNICATION — (Related to City Business Only — 5 minute limit per
person, 30 minute limit total) Individuals who have received value of $50 or more to communicate
to the City Council on behalf of another, and employees speaking on behalf of their employer, must so
identify themselves prior to addressing the City Council. Failure to do so shall be a misdemeanor and
punishable by a fine of $250.
SPECIAL ORDER OF BUSINESS:
CLOSED SESSION:
The City Council may move into a closed session pursuant to applicable law, including
the Brown Act (Government Code Section §54960, et sue.) for the purposes of
conferring with the City's Real Property Negotiator, and /or conferring with the City
Attorney on potential and /or existing litigation; and /or discussing matters covered under
Government Code Section §54957 (Personnel); and /or conferring with the City's Labor
Negotiators; as follows:
CONFERENCE WITH LEGAL COUNSEL — EXISTING LITIGATION (Gov't Code
§54956.9(d) (3) -3- matter
1. City of El Segundo vs. City of Los Angeles, et.al. LASC Case No. BS094279
2. Springfield vs. City of El Segundo, et.al. LASC Case No. YC067789
3. Flickenger vs. City of El Segundo, WCAB Case No. ADJ8627969
CONFERENCE WITH LEGAL COUNSEL — ANTICIPATED LITIGATION
Significant exposure to litigation pursuant to Government Code §54956.9(d) (2) and (3):
-0- matter.
Initiation of litigation pursuant to Government Code §54956.9(c): -0- matter.
DISCUSSION OF PERSONNEL MATTERS (Gov't Code §54957): -0- matter
APPOINTMENT OF PUBLIC EMPLOYEE (Gov't. Code § 54957) —0- matter
CONFERENCE WITH CITY'S LABOR NEGOTIATOR (Gov't Code §54957.6): -8-
matters
Agency Designated Representative: City Manager
Employee Organizations: Police Management Association; Police
Officers Association; Police Support Services Employees Association;
Fire Fighters Association; Supervisory and Professional Employees
Association; City Employees Association; Executive Management
Group (Unrepresented Group); Management/Confidential Group
(Unrepresented Group)
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CONFERENCE WITH REAL PROPERTY NEGOTIATOR (Gov't Code §54956.8): -0-
matters
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AGENDA
EL SEGUNDO CITY COUNCIL
COUNCIL CHAMBERS - 350 Main Street
The City Council, with certain statutory exceptions, can only take action upon properly posted and listed
agenda items. Any writings or documents given to a majority of the City Council regarding any matter on
this agenda that the City received after issuing the agenda packet, are available for public inspection in
the City Clerk's office during normal business hours. Such Documents may also be posted on the City's
website at www.elsegundo.org and additional copies will be available at the City Council meeting.
Unless otherwise noted in the Agenda, the Public can only comment on City - related business that is
within the jurisdiction of the City Council and /or items listed on the Agenda during the Public
Communications portions of the Meeting. Additionally, the Public can comment on any Public Hearing
item on the Agenda during the Public Hearing portion of such item. The time limit for comments is five (5)
minutes per person.
Before speaking to the City Council, please come to the podium and state: Your name and residence
and the organization you represent, if desired. Please respect the time limits.
Members of the Public may place items on the Agenda by submitting a Written Request to the City Clerk
or City Manager's Office at least six days prior to the City Council Meeting (by 2:00 p.m. the prior
Tuesday). The request must include a brief general description of the business to be transacted or
discussed at the meeting. Playing of video tapes or use of visual aids may be permitted during meetings if
they are submitted to the City Clerk two (2) working days prior to the meeting and they do not exceed five
(5) minutes in length.
In compliance with the Americans with Disabilities Act, if you need special assistance to
participate in this meeting, please contact City Clerk, 524 -2305. Notification 48 hours prior to the
meeting will enable the City to make reasonable arrangements to ensure accessibility to this
meeting.
REGULAR MEETING OF THE EL SEGUNDO CITY COUNCIL
TUESDAY, MARCH 18, 2014 - 7:00 P.M.
7:00 P.M. SESSION
CALL TO ORDER
INVOCATION — Father Alexei Smith, St. Andrew Russian Greek Catholic Church
PLEDGE OF ALLEGIANCE — Council Member Atkinson
L,
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PRESENTATIONS
ROLL CALL
PUBLIC COMMUNICATIONS — (Related to City Business Only — 5 minute limit per
person, 30 minute limit total) Individuals who have received value of $50 ormore to communicate
to the City Council on behalf of another, and employees speaking on behalf of their employer, must so
identify themselves prior to addressing the City Council. Failure to do so shall be a misdemeanor and
punishable by a fine of $250. While all comments are welcome, the Brown Act does not allow Council to
take action on any item not on the agenda. The Council will respond to comments after Public
Communications is closed.
CITY COUNCIL COMMENTS — (Related to Public Communications)
A. PROCEDURAL MOTIONS
Consideration of a motion to read all ordinances and resolutions on the
Agenda by title only.
Recommendation — Approval.
B. SPECIAL ORDERS OF BUSINESS (PUBLIC HEARING)
C. UNFINISHED BUSINESS
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1. Approval of an amended Due Diligence and Ground Lease Agreement to
include a "shared principles" document and Reimbursement Agreement
with ES CenterCal, LLC ( "ES CenterCal ") to lease the driving range portion
of The Lakes Golf Course for the purpose of developing a TopGolf facility
consisting of a driving range, restaurant, bar and lounge and event
facilities.
(Fiscal Impact: $425,000 annual ground lease with 10% increases
compounded each five years; Reimbursement Agreement to be funded by a
$367,500 Developer Reimbursed Trust Fund)
Recommendation — 1) Approve the amended Due Diligence and Ground Lease
Agreement and direct the City Manager to enter into a Reimbursement
Agreement that requires ES CenterCal to pay the costs associated with the
various due diligence and land use entitlement costs; 2) Authorize the City
Manager to execute a Professional Service Agreement for CEQA review services
related to the Due Diligence and Ground Lease Agreement approved as to form
by the City Attorney in an amount not to exceed $257,500; 3) Alternatively,
discuss and take other action related to this item.
2. Consideration and possible action to: 1) receive and file this report on
alternative parking concept designs for Richmond Street, Standard Street
and Grand Ave., and 2) provide preliminary direction to staff related to
preferred alternatives and implementation plans for the 100 -400 blocks of
Richmond St. and Standard St. and the east 100 block of Grand Ave; 3)
direct staff to begin process of undertaking California Environmental
Quality Act ( "CEQA ") review of the alternatives.
(Fiscal Impact: To Be Determined)
Recommendation — 1) Receive and file this report on alternative parking concept
designs for Richmond St, Standard St. and Grand Ave.; 2) Provide direction to
staff related to preferred alternatives and implementation plans for the 100 -400
blocks of Richmond St. and Standard St. and east 100 block of Grand Ave;
3) Direct staff to begin the process of undertaking CEQA review of the
alternatives; 4) Alternatively, discuss and take other action related to this item.
D. REPORTS OF COMMITTEES, COMMISSIONS AND BOARDS
3. Planning Commission communication regarding the Downtown Specific
Plan (DSP) Parking In -Lieu Fee Program and how the Program may have
negatively affected parking being conveniently located near businesses.
(Fiscal Impact: N /A)
Recommendation — 1) Receive and file report; 2) Direct Staff to gather more
information or begin the process for altering the Program; 3) Alternatively,
discuss and take other action related to this item.
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E. CONSENT AGENDA
All items listed are to be adopted by one motion without discussion and passed unanimously. If a call for
discussion of an item is made, the item(s) will be considered individually under the next heading of
business.
4. Warrant Numbers 2596842 - 2597038 on Register No. 11 in the total amount
of $691,372.90 and Wire Transfers from 02/15/2014 through 02/28/2014 in
the total amount of $941,250.74)
Recommendation — Approve Warrant Demand Registers and authorize staff to
release. Ratify Payroll and Employee Benefit checks; checks released early due
to contracts or agreement; emergency disbursements and /or adjustments; and
wire transfers.
5. Regular City Council Meeting Minutes of March 4, 2014 and Special Meeting
Minutes of March 10, 2014
Recommendation — Approval.
6. Consideration and possible action to accept as complete the City Wide
Fiber Optics Project. Project No. PW 13 -04.
(Fiscal Impact: $236,544.27)
Recommendation — 1) Accept the work as complete; 2) Authorize the City Clerk
to file a Notice of Completion in the County Recorder's Office; 3) Alternatively,
discuss and take other possible action related to this item.
7. Consideration to authorize the appropriation of existing designated funds
accrued in prior fiscal years to purchase computer hardware, software and
peripherals for use at City facilities in an amount not to exceed $230,600.00.
(Fiscal Impact: $230.600.00)
Recommendation — 1) Authorize staff to appropriate existing designated funds
accrued in prior fiscal years to purchase computer hardware, software and
peripherals in an amount not to exceed $230,600.00; 2) Alternatively, discuss
and take other action related to this item.
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8. Consideration and possible action to approve a contract amendment to
increase the budget for DownStream Services, Inc. for pump station on -call
and emergency repair services in the 2013 -14 Fiscal Year. Project No.
PW13 -12
(Fiscal Impact: $40,000.00)
Recommendation — 1) Authorize the City Manager to execute a contract
amendment, in a form approved by the City Attorney, with DownStream Services,
Inc. to increase the budget for pump stations on -call repair services in the 2013-
14 Fiscal Year; 2) Alternatively, discuss and take other action related to this item.
9. Consideration and possible action regarding awarding contract to Big West
Construction Corporation for construction at 26 homes related to Project
No. RSI 14 -01 (Group 51 of the City's Residential Sound Insulation
Program).
(Fiscal Impact: Estimated construction costs and retention $1,286,947.00)
Recommendation — 1) Waive minor irregularities in the bid from Big West
Construction Corporation; 2) Award contract to Big West Construction
Corporation for project RSI 14 -01 (Group 51); 3) Authorize the City Manager to
execute a contract in a form approved by the City Attorney; 4) Alternatively,
discuss and take other action related to this item.
10. Consideration and possible action regarding a request from the El
Segundo PTA Council to waive fees for the use of City resources and staff
time associated with their Run for Education event on April 26, 2014.
(Fiscal Impact: $13,040.32)
Recommendation — 1) Approve /Deny the request from the El Segundo PTA
Council to waive fees for the use of City resources and staff time associated with
their Run for Education event; 2) Alternatively, discuss and take other action
related to this item.
F. NEW BUSINESS
G. REPORTS — CITY MANAGER
H. REPORTS — CITY ATTORNEY
I. REPORTS — CITY CLERK
J. REPORTS — CITY TREASURER
K. REPORTS — CITY COUNCIL MEMBERS
Council Member Fellhauer —
Council Member Atkinson —
Council Member Fuentes —
Mayor Pro Tern Jacobson —
Mayor Fisher —
11. Consideration and possible action to support the Advanced Manufacturing
Partnership for Southern California ( "AMP SoCal ") response to the 2014
Investing in Manufacturing Communities Partnership (IMCP) notice.
(Fiscal Impact: None)
Recommendation — 1) Approve the letter of support; 2) Alternatively, discuss and
take other possible action related to this item.
PUBLIC COMMUNICATIONS — (Related to City Business Only — 5 minute limit per
person, 30 minute limit total) Individuals who have receive value of $50 or more to communicate
to the City Council on behalf of another, and employees speaking on behalf of their employer, must so
identify themselves prior to addressing the City Council. Failure to do so shall be a misdemeanor and
punishable by a fine of $250. While all comments are welcome, the Brown Act does not allow Council to
take action on any item not on the agenda. The Council will respond to comments after Public
Communications is closed.
MEMORIALS —
CLOSED SESSION
The City Council may move into a closed session pursuant to applicable law, including the Brown Act
(Government Code Section §54960, et sue.) for the purposes of conferring with the City's Real Property
Negotiator; and /or conferring with the City Attorney on potential and /or existing litigation; and /or
discussing matters covered under Government Code Section §54957 (Personnel); and /or conferring with
the City's Labor Negotiators.
REPORT OF ACTION TAKEN IN CLOSED SESSION (if required)
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ADJOURNMENT
POSTED:
DATE: �J• ��J • ��
TIME: O
NAME: \J
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EL SEGUNDO CITY COUNCIL MEETING DATE: March 18, 2014
AGENDA STATEMENT AGENDA HEADING: Unfinished Business
AGENDA DESCRIPTION:
Approval of an amended Due Diligence and Ground Lease Agreement to include a "shared
principles" document and Reimbursement Agreement with ES CenterCal, LLC ("ES CenterCal ")
to lease the driving range portion of The Lakes Golf Course for the purpose of developing a
TopGolf facility consisting of a driving range, restaurant, bar and lounge and event facilities.
(Fiscal Impact: $425,000 annual ground lease with 10% increases compounded each five years;
Reimbursement Agreement to be funded by a $367,500 Developer Reimbursed Trust Fund)
RECOMMENDED COUNCIL ACTION:
1. Approve the amended Due Diligence and Ground Lease Agreement and direct the City
Manager to enter into a Reimbursement Agreement that requires ES CenterCal to pay the
costs associated with the various due diligence and land use entitlement costs;
2. Authorize the City Manager to execute a Professional Service Agreement for CEQA review
services related to the Due Diligence and Ground Lease Agreement approved as to form by
the City Attorney in an amount not to exceed $257,500; and /or;
3. Alternatively, discuss and take other possible action related to this item.
ATTACHED SUPPORTING DOCUMENTS:
1. Staff Report to City Council, dated November 5, 2013
2. Amended Due Diligence and Ground Lease
a. Amendments to Construction and Operational Guarantees
b. TopGolf "Shared Principles" document
3. Reimbursement Agreement for environmental review services for the
Centercal /TopGolf Project.
FISCAL IMPACT: $367,500
Amount Budgeted: N/A
Additional Appropriation: $367,500
Account Number(s): Developer Reimbursed Trust Fund to be established for this
proj ect
ORIGINATED BY: Ted Shove, Economic Development Analyst �d5
REVIEWED BY: Sam Lee, Director of Planning anO Building Safety
APPROVED BY: Greg Carpenter, City Manager
BACKGROUND AND DISCUSSION:
In November 2013, City Council approved a proposed Due Diligence and Ground Lease
Agreement by and between the City of El Segundo and ES CenterCal, LLC ( "Lease ") to lease
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the driving range portion of The Lakes Golf Course for the purpose of developing a TopGolf
facility consisting of a driving range, restaurant, bar and lounge and event facilities. The Lease
has not been executed for a couple of reasons. First, the Council directed that the "shared
principals" document (Exhibit "I ") be incorporated into the Lease and it was acknowledged that
these changes might necessitate the Lease coming back to the Council for approval.
Additionally, ES CenterCal and 30 West Pershing and CenterCal, LLC ( "Guarantors ") have
requested some changes to Lease and the Guaranties. Finally, the staff has been negotiating the
terms of agreement with ES Centercal for purposes of requiring ES Centercal to fund the
various conditions that must be met for the Lease to potentially become effective.
The "shared principals" document generally provided for the driving range to continue to be
available for use by youth groups, school sports teams, and golf professionals and their students
and that the golf course improvements be built to certain standards. The availability of the
driving range to these various groups is addressed in the changes set forth in Sections 11.3 and
11.4 of the Lease. Exhibit D, which has not been changed since the November 2013 City
Council Meeting, sets for the development standards for the golf course.
As stated above, ES CenterCal and the Guarantors also requested some changes to the Lease
language which is highlighted in the attached revised Lease. Some of the changes are just
formatting or typographical changes. The more substantive change to the Lease is in Section
22.3.10 which deals with the potential of a change in the lessee and guarantor after the
improvements to the golf course and driving range have been completed. The proposed change
reduces the required net worth of the guarantor from $20 million to $10 million. Staff is
comfortable with this change given that the improvements will have been completed. The
Guarantors also requested a change to Section 15 of the Guaranties. The language in this
provision provided that to the extent that there are any inconsistencies between the Lease and the
Guaranties with regard to the obligations of the guarantors, that the provision that provides the
greatest protection to the City would be applicable. The Guarantors do not find this language
acceptable and have requested that this language be amended to provide that the Guarantors will
honor provisions that are expressly in the Lease and not in the Guaranty and are applicable to the
Guarantor. The City Attorney's Office prefers the original language as it offers a greater level of
protection for the City but does not believe that the language suggested by the Guarantors is
unreasonable.
The City and ES CenterCal have also been negotiating a reimbursement agreement to cover the
costs of various conditions precedent to the Lease (for example, financial review of the
Guarantors, negotiations with SCE and Chevron, CEQA review, preparation of land use
entitlement documents, etc.). Staff is seeking Council approval of the attached Reimbursement
Agreement which estimates that the total costs of processing the conditions precedents at
$367,500. ES CenterCal, LLC has requested a "Not to Exceed" clause within the
Reimbursement Agreement. Should total environmental consultant review services and City
administrative costs exceed the agreed upon amount, the City will cease processing the
conditions precedent unless and until ES CenterCal agrees to pay amounts in excess of the
currently estimated costs.
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Finally, staff is seeking Council approval to enter into a contract for preparation of the necessary
environmental review for the Lease pursuant to the California Environmental Quality Act
(CEQA). The total estimated costs for environmental review services include $257,500 for an
environmental review consultant (of which $75,000 was included for traffic engineering and
parking analysis costs).
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EL SEGUNDO CITY COUNCIL MEETING DATE: November 5, 2013
AGENDA STATEMENT AGENDA HEADING: Unfinished Business
AGENDA DESCRIPTION:
Approval of a Due Diligence and Ground Lease Agreement and Reimbursement Agreement with
ES CenterCal LLC to lease the driving range portion of The Lakes Golf Course for the purpose
of developing a Top Golf facility consisting of a driving range, restaurant, bar and lounge and
event facilities. (Fiscal Impact: $425,000 annual ground lease with 10% increases compounded
each five years)
RECOMMENDED COUNCIL ACTION:
1. Approve the Due Diligence and Ground Lease Agreement and direct the City
Manager to enter into a Reimbursement Agreement that requires CenterCal to pay the
costs associated with the various due diligence and land use entitlement costs;
2. Alternatively, discuss and take other possible action related to this item.
ATTACHED SUPPORTING DOCUMENTS:
1. Staff Report to City Council, dated August 21, 2012
2. Presentation made by the Golf Course Advisory Group to the City Council, dated
Junel8, 2013
3. Proposed Due Diligence and Ground Lease
4. Top Golf "Area of Understanding" document
FISCAL EMPACT: None
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: Ted Shove, Economic Development Analyst
REVIEWED BY: Sam Lee, Director of Planning and Building Safety
APPROVED BY: Greg Carpenter, City Manager
BACKGROUND AND DISCUSSION:
In February of 2012, City Staff was approached by representative of Top Golf and CenterCal
Development and introduced to the Top Golf concept and were asked if there was interest on the
part of the City of El Segundo in considering a lease of the driving range portion of the Lakes
Golf Course for this purpose. Staff asked these parties to develop concept plans and a real estate
proposal for consideration by the City. In August of 2012, the City Council directed staff to
begin negotiating a potential agreement with Centercal Properties to allow the development of a
Top Golf facility that would provide a computerized/electronic driving range (microchip
equipped golf balls that are precisely tracked on a video screen for competitive or self -
improvement purposes), restaurant, bar and lounge and event facility. Additionally, the City
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Council directed staff to seek input from the public by presenting at various public forums
regarding the potential agreement and development.
Staff presented and recorded public input at the following public meetings:
Dates
Meeting
August 29, 2012
Golf Course Subcommittee
September 13, 2012
E.S. Chamber of Commerce
September 18, 2012
Golf Indusyy Stakeholders
September 19, 2012
Recreation and Park Commission
Se tember 25, 2012
Kiwanis Club
October 3, 2012
Golf Course Subcommittee (second time)
_
October 4, 2012
Rot
October 11, 2012
Planning Commission
October 11, 2012
Economic DevelopmentAdvisog Council
November 8, 2012
E.S. Chamber of Commerce (second time)
December 5, 2012
Golf Course Subcommittee (third time)
December 19, 2012
Recreation and Park Commission
In addition, in May of 2013 Council formed a temporary Golf Course Advisory Group (GCAG)
to research options for improvement of the financial and physical condition of "The Lakes" Golf
Course and develop recommendations for City Council consideration. GCAG presented their
findings and recommendations at the June 18, 2013 City Council meeting (see attached
presentation).
Proposed Lease Agreement
The City staff and Centercal have been negotiating the deal points of the agreement and
developing the language of the lease. It is important to note at the outset that no leasehold
interest is being created if the Council approves the agreement. The due diligence and
entitlement process will need to be completed before any leasehold interest is created. This
process will take twelve to fourteen months and includes twelve conditions precedent that have
to be satisfied. Many of these conditions include decisions to be made by the City Council
including approval of conceptual design plans for the golf course and the driving range, a
California Environmental Quality Act ( "CEQA ") analysis of the leasehold interest and the
proposed uses for the property, and the land use entitlements that will be necessary to allow for
the proposed uses under the agreement. Thus, the public will have multiple opportunities to
review and participate in the conditions precedent that are necessary to be completed during the
due diligence and entitlement process. There will also be related hearings before the Planning
Commission.
While the agreement is between the City of El Segundo and CenterCal ES LLC, if the due
diligence process is completed 30 West Pershing, a real estate investment trust, will be a
Subleasee of Center Cal and that Top Golf LLC will be a subleasee of 30 West Pershing. The
City is not a party to these agreements nor is it involved in negotiating these agreements.
However, it has been the intent of the City that Top Golf would be the operator of the facility. A
summary of the key provisions from the attached agreement are as follows:
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• Purpose (Section 1) — This agreement would allow the lease and potential development
of a Top Golf facility on the driving range portion of The Lakes Golf Course by
CenterCal ES LLC. Additionally, the lease would include the existing parking lot and a
portion of the existing 9 -hole golf Course. The agreement establishes a one -year period
for the City of El Segundo and CenterCal to satisfy specific conditions (Conditions
Precedent). Assuming the conditions precedent are satisfied during this 1 -year period,
the lease agreement will become fully effective and CenterCal may then move forward
with the development.
• Lease Term/Return of Facility Upon end of Term (Sections 2 and 26) — The initial
term of the lease is for 20 years with six five -year options to extend after the initial term.
Section 26 requires that the land and improvements will revert to the City at the end of
the lease term and extensions.
• Lease Amount and Escalation (Section 3) — CenterCal will pay the City a fixed rent of
$425,000 per year for each of the first five years. This fixed rent will increase by 10% in
year six and by ten percent at the end of each 5 -year period thereafter.
• Rent during construction (Section 3) — CenterCal will pay the City $18,000 per month
during the first 10 months after the completion of due diligence. After this first 10 -month
period or upon the opening of the Top Golf facility (whichever occurs first) the Fixed
Rent payment mentioned above shall apply.
• Top Golf Facility (Section 4/Exhibit G) — The agreement limits the use of the property to
a driving range and related clubhouse, restaurant, bar and event space, similar to the Top
Golf facility located in Austin Texas.
• Changes to the Lakes Golf Course (Sections 5.4 and 12 /.Exhibit D) — The proposed
Top Golf facility has a larger footprint and a higher parking demand than the current
driving range facility. In order to accommodate the proposed development and parking
needs, the 9 -hole portion of the course must be modified. Exhibit D of the agreement
provides direction as to the redesign of the golf course and the minimum standards of
development. The intent of this section is that the facilities and the level of play of the
course shall be the same or better than the current facility. The clubhouse building and
the size of the restaurant will be smaller than the current Lakes facility. Parking for the
Lakes would be shared with the Top Golf facility and may include some spaces reserved
for Lakes patrons. Section 12 requires CenterCal to fiend and complete the improvements
to the golf course and the driving range.
• Conditions Precedent/Due Diligence Requirements (Subsection 5.4) — As mentioned
above, this is a conditional agreement that calls for a 12 -month due diligence and
performance period during which the City and CenterCal are responsible for a number of
actions. There are 12 conditions precedent that include such items as:
Environmental testing/due diligence by CenterCal;
- Approval of the conceptual golf course and driving range improvements by the
City;
That subleases between CenterCal and 30 West Pershing, and between 30 West
Pershing and Top Golf have been entered into and that the sublease between 30
West Pershing and Top Golf requires Top Golf to operate the facility for a
minimum of seven years;
Review and determination on all necessary planning/zoning applications and
California Environmental Quality Act (CEQA) review by the City;
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Extension of the lease (license agreement) for the portion of the property owned
by Southern California Edison; and,
Confirmation from Chevron that the proposed use is consistent with their
(Chevron's) restrictions on this property.
o Operational Conditions (Sections 11 and 12) — During the public outreach process, staff
heard from current users that a number of operational considerations should be included
in the agreement. This section requires that a portion of the facility be open for early
morning (6:00 a.m.) users, discounts (10 %) for El Segundo residents and seniors and
military. The discounts would be cumulative (i.e. an El Segundo resident who is a senior
would receive a 20% discount). The agreement requires the operator to make the facility
available to youth groups and the operator (Top Golf) is in the process of finalizing a
commitment to accommodate instructional groups (see attached "Areas of
Understanding" document). While this commitment bears the name of the City of El
Segundo it was negotiated by Top Golf and the golf professionals that provide
instructional training at the Lakes. Section 11 also allows the City to temporarily operate
the driving range facility if, during the term of the agreement, Top Golf or a subsequent
operator vacates the facility. The intent of this provision is to allow the facility to remain
for operation while 30 West Pershing seeks a longer -term tenant for the facility. Should,
after the initial seven year term of the agreement, the facility become vacant (other than
the City's temporary operation) for more than two years, the agreement could be
terminated and the facility would revert back to the City.
In order to seek to avoid closure of the golf course closure during construction, Section
12 requires the City and CenterCal to assess the ability to operate all or parts of the golf
course during the construction period of both the golf course and the Top Golf facility
and to operate to the golf course to the extent determined feasible.
o Guarantees — The agreement includes financial guaranties from corporate parents of
Center Cal and 30 West Pershing that they will complete construction of the golf course
and the Top Golf facilities, the payment of rent through the time the construction is
completed, and operation by Top Golf or another operator for seven years. If something
unforeseen occurs, and the projects are cancelled, these parties are also providing
guarantees that the golf course and driving range improvements will be completed or that
the facilities will be returned to their original conditions. Finally, in order to insure that
the golf course improvements are completed, Subsection 4.1 requires that the golf course
be substantially complete and available for operations prior to Top Golfs ability to
operate their facility.
Project Benefits and Possible Schedule
In reviewing the proposal staff believes that there are a number of benefits to the City of El
Segundo including:
o Increased Use of the Facilities — The proposed Top Golf facility will increase the number
of hitting bays and potentially appeal to a broader range of users than the current,
traditional driving range. It is also possible that the increased public awareness in the
facility and increased interest in golf will increase the usage of the Lakes golf course.
o Job Creation and Employment — the current driving range facility currently employs the
equivalent of 2 -3 full -time persons. The proposed Top Golf facility is expected to create
4 152
17
approximately 300 temporary construction jobs as well as 100 -120 full-time and 60 -80
part-time jobs upon completion and operation.
• Amenity to the Business Community/Economic Development Tool — High technology
and creative industry companies, like some that already exist in El Segundo and those
that the City is attempting to attract, look for locations that provide amenities and
recreation opportunities for their employees and clients. The proposed facility will
provide a recreational, social and business gathering location for current and future
businesses. This will be the first West Coast location for Top Golf and will generate a
great deal of interest that will serve to further promote El Segundo's business and visitor
profile.
• Improvement of the Lakes Golf Course — It is the City's desire that the condition and
playability of the Lakes can be improved as part of this renovation but at a minimum the
total playing distance of the course cannot be decreased. Additionally, it must maintain
the same number of par 4 holes. The level of improvement is yet to be determined but it
is hoped that the course can be lengthened to achieve a United States Golf Association
(USGA) rating, that additional obstacles can be added, that some of the current water
features can be more integrated into to the play of the course and that tee boxes can be
leveled and lengthened. The estimated combined investment in the Lakes and the Top
Golf facilities is in the range of $17million to $22 million dollars.
• Financial Benefit to the City — The proposed facility will provide a financial benefit to
the City and the Golf Enterprise Fund. This increased revenue is a result to the $425,000
ground lease, the increase in sales, business license, utility users and property taxes
generated by the facility and it's customers (estimated at approximately $55,000 to
$75,000 per year), a reduction in the City's expenses and improved financial
performance of The Lakes golf course. Taking into account the loss of revenue from the
current driving range operation with the factors mentioned above, the City anticipates an
additional annual revenues of $ 200,000 to 300,000.
A very preliminary scenario for a project schedule could be as follows:
• November, 2013 — City Council approval of the Due Diligence and Ground Lease
Agreement
• December, 2013 through December, 2014 — Due diligence, review and approval of golf
course design and consideration of zoning /planning applications and CEQA document
final plan review, building permits and construction contracts are entered into for the
improvements to the golf course and driving range.
• January, 2015 through October 2015 — Initiation and completion of the golf course and
driving range improvements.
In this scenario, both facilities could be open for operation by November, 2015. It would be the
City's intent to expedite the process as well as have portions of the Lakes open during the
construction period.
Summary
The proposed Agreement will start a one -year process to further evaluate the proposal and
develop more detailed plans for both facilities. During this process, there will be additional
opportunities for public involvement and input on the design and operations as well as the CEQA
5 153
in
and land use entitlement process. As discussed in the previous section of this report, if both
parties decide to ultimately move forward with the project, it is felt that the new and revised
facilities will benefit the City, the business community, users of the Lakes Golf Course and
future employees and users of Top Golf.
6 154
19
DUE DILIGENCE AND GROUND LEASE AGREEMENT
Between.
THE CITY OF EL SEGUNDO,
a General Law Municipal corporation
("Lessor")
And
ES CENTERCAL, LLC,
a Delaware limited liability company
(as "Lessee °')
Dated , 201
20
21
TABLE OF CONTENTS
Page
Section1.
Demise ............................................ ...............................
2
Section 2.
Lease Term ....................................... ...............................
2
Section3.
Rent ............................................... ...............................
3
Section4.
Use ................................................ ...............................
4
Section 5.
Due Diligence; Condition of Premises ......................................
5
Section6.
Liens .............................................. ...............................
11
Section 7.
Utilities, Taxes, and Other Charges .......... ...............................
12
Section 8.
Insurance ......................................... ...............................
14
Section 9.
Lessor's Right to Perform Lessee's Covenants ...........................
16
Section 10.
Compliance with Legal Requirements ...... ...............................
16
Section 11.
Operation, Repairs and Maintenance ........ ...............................
19
Section 12.
Development of the Golf Course Premises; Premises Improvements.
20
Section 13.
Title to Improvements ......................... ...............................
22
Section 14.
No Waste ......................................... ...............................
22
Section 15.
Inspection and Access .......................... ...............................
22
Section 16.
Lessor's and Lessee's Exculpation and Indemnity .......................
22
Section 17.
Condemnation .................................. ...............................
24
Section 18.
Assignment and Sublease ..................... ...............................
26
Section 19.
Lessor Default; Remedies .................... ...............................
28
Section 20.
Lessee Default; Remedies .................... ...............................
28
Section 21.
No Abatement of Rent; Encroachments .... ...............................
30
Section 22.
Leasehold Mortgages .......................... ...............................
31
Section 23.
Lessor's Right to Encumber .................. ...............................
33
Section 24.
Nonmerger ...................................... ...............................
34
Section 25.
Quiet Enjoyment ............................... ...............................
34
Section26.
Surrender ......................................... ...............................
34
Section 27.
Invalidity of Particular Provisions ........... ...............................
35
Section 28.
No Representations ............................ ...............................
35
Section 29.
Estoppel Certificate ............................ ...............................
35
Section 30.
Force Majeure .................................. ...............................
35
i
21
Section31. Notices ........................................... ............................... 35
Section32. Venue ............................................ ............................... 38
Section 33.
Entire Agreement ............................... ...............................
38
Section 34,
Applicable Law ................................. ...............................
39
Section 35.
License Agreement ....................... . .... ...............................
39
Section 36.
Late Charge ..................................... ...............................
39
Section 37.
Nonwaiver ...................................... ...............................
39
Section 38.
Brokerage ...................................... ...............................
40
Section 39.
Miscellaneous Provisions .................... ...............................
40
Section 40.
Covenants to Bind and Benefit Parties ..... . .... . ...... . ...... . ...........
40
Section 41.
Captions and Table of Contents ............. ...............................
40
Section 42.
[intentionally Omitted] ....................... ...............................
40
Section 43.
Hazardous Materials ....................... ...............................
41
Section 44.
Counterparts .................................................... I.............
41
Section 45.
Consent and Approval Rights ............... ...............................
41
Section 46.
Prevailing Wages ............................. ...............................
41
Section 47.
Golf Course ................................... ...............................
41
ii
22
DUE DILIGENCE AND GROUND LEASE AGREEMENT ( "LEASE ")
Deleted: _
Date: 201 the "Commencement Date"
Lessor: THE CITY OF EL SEGUNDO, a general law City and municipal corporation
( "Lessor ").
Lessee: ES CENTERCAL, LLC, a Delaware limited liability company
( "Lessee ").
Guarantors: CenterCal, LLC, a Delaware limited liability company
("CenterCal Guarantor")
30 West Pershing, LLC, a Missouri limited liability company
( "30 West Guarantor" or "30 West Pershing ")
RECITALS
A. Whereas Lessor owns or is the Licensee of certain real property in the City of El
Segundo, County of Los Angeles, State of California, more particularly described in Exhibit
"A "(the "Property ") attached hereto and by this reference incorporated herein and delineated
on the Site Plan attached hereto as Exhibit "B" and by this reference incorporated herein. A
portion of the Property consists of that certain real property in the City of El Segundo, County of
Los Angeles, State of California, more particularly described in Exhibit "A -1" attached hereto
and by this reference incorporated herein and delineated on the Site Plan (the "Premises "). Also
attached hereto is a Site Plan for the golf course and related improvements (the "Golf Course "),
more particularly described in Exhibit A -2, which makes up a portion of the Property but is not
part of the Premises. A portion of the Property is subject to that certain License Agreement
dated June 24, 1991, by and between Southern California Edison as "Licensor" and the Lessor as
Licensee, a copy of which is attached hereto as Exhibit "C" attached hereto and by this
reference incorporated herein (the "License Agreement "); and,
B. Whereas Lessor desires to lease the Premises to Lessee and Lessee desires to
lease the Premises from Lessor for the purpose of operating a commercial driving range, full
service restaurant, clubhouse, and event space and Lessee wishes to lease the Premises from
Lessor, for such use; and,
C. Whereas Lessee shall be making certain improvements to the Golf Course ( "Golf
Course Improvements ") and the Premises ( "Premises Improvements ") for the benefit of
Lessor and Lessee as described on Exhibit I'D" attached hereto and by this reference
incorporated herein; and,
D. Now Therefore Lessor and Lessee enter into this Lease based on the terms and
conditions hereinafter set forth.
23
TERMS
Section 1. Demise
Lessor and Lessee hereby enter into this Lease for purposes of allowing: Lessee to
perform due diligence on the Property; and to provide an opportunity for the parties to
potentially satisfy the Conditions Precedent. Upon satisfaction of the Conditions Precedent
Lessor shall lease the Premises to Lessee, and Lessee shall lease the Premises from Lessor, upon
the terms and conditions set forth in this Lease.
Section 2. Lease Term
2.1 The "Basic Term" of this Lease shall begin when all of the Conditions Precedent
have been satisfied and Lessee has notified Lessor that it desires to have this Lease become
effective as provided in Section 5.4 hereof ( "Premises Turnover Date ") and shall end on the
twentieth (20th) anniversary of the Premises Turnover Date. The Basic Term shall also be
referred to herein as the "Initial Term ". The parties agree to execute and record a memorandum
of an addendum to this Lease setting forth the Premises Turnover Date. While the terms
"Lease ", "Lessor" and "Lessee" are used throughout this agreement/Lease, the Lessee shall not
be deemed to have a leasehold interest in the Premises until the Premises Turnover Date.
On the Premises Turnover Date, Lessor shall deliver to Lessee, in conformance with all
applicable laws, and except as otherwise explicitly provided herein (including without limitation
the Permitted Exceptions and the Parking License), exclusive possession and control of the
Premises in its "AS IS" condition except it shall be free of any and all occupants, liens,
encumbrances, and security interests except for non - delinquent real estate taxes, and the
Permitted Exceptions (which includes the License Agreement and the Parking License).
2.2 Lessee shall have six (6) successive options to extend the term of this Lease, each
for a separate additional period of five (5) years, from the date upon which such term would
otherwise expire, provided that Lessee shall be entitled to exercise an option only if at the time of
exercise Lessee is in compliance with all of the material terms of this Lease, including but not
limited to all Rent payments being current and the Premises being open to the public and
operating as a driving range with foodibeverage service. However, to the extent Lessee has
received a default notice from Lessor and is diligently curing a default in accordance with
Section 20 hereof, this Lease shall not be extended until such time as the default is cured and
then the term may be extended. If Lessee does not cure such default within the time periods set
forth in Section 20 hereof then Lessee shall forfeit the extension rights set forth in this Section.
Subject to the above limitations, unless Lessee gives Lessor at least six (6) months prior written
notice of its intent not to exercise an option to extend this Lease, this Lease shall automatically
be extended for an additional five (5) year term. Each such extension shall be upon and subject to
the same terms, covenants and conditions as those herein specified except that Lessee may not
again exercise any previously exercised option under this section.
Error: Unknown document property name.
Deleted:
DAL:0103393/00007:2239739v2
24
The words "Lease Term, term of this lease ", "the term hereof', or words of like import
shall be deemed to refer to the Initial Term of this Lease provided for in Section 2.1 hereof
together with any extension or renewal thereof which shall become effective pursuant to the
provisions of this Lease or by reason of the exercise of an option or right granted hereunder.
Section 3. Rent
3.1 Lessee covenants and agrees to pay to Lessor, promptly when due, without notice
or demand and without deduction or setoff of any amount whatsoever unless otherwise
specifically provided in this Lease, the following amounts: (a) the amount of Eighteen Thousand
and No /100 Dollars ($18,000.00) per month ( "Initial Rent ") from the Premises Turnover Date
until the "Fixed Rent Commencement Date" (as defined in Section 3.2), not to exceed One
Hundred Eighty Thousand and No /100 Dollars ($180,000) in the aggregate, and (b) the amount
of Thirty-Five Thousand Four Hundred Sixteen and 66/100 Dollars ($35, 416.66) per month
($425,0000 per year) as rent for the Premises from the Fixed Rent Commencement Date through
the end of the Lease Term, except as increased as specified below (the "Fixed Rent "). In
addition to the Fixed Rent Lessee shall pay its pro -rata share of the consideration payable under
the License Agreement as and when required by the License Agreement based upon the land area
of the Premises located within the area subject to the License relative to all of the land area of the
Premises and the Golf Course located within the area subject to the License. The obligation of
Lessee to pay Fixed Rent and other sums hereunder may be satisfied by any person or entity
making payment of Fixed Rent or other sums to Lessor as hereinafter provided.
3.2 The first installment of Initial Rent shall be payable on the Premises Turnover
Date in a pro -rata amount based upon the number of days remaining in the month. The first
installment of Fixed Rent shall be payable from the earlier of the date that the Premises opens to
the public for business or ten (10) months following the Premises Turnover Date, subject to force
majeure as defined in Section 30 and delays caused by Lessor (the "Fixed Rent
Commencement Date "). All Rent from and after the Fixed Rent Commencement Date shall be
paid in advance, on the first day of each month. Upon termination of this Lease, Rent payable
for less than a full month shall be paid in a pro -rata amount based on the number of days that the
Lease was in effect for the month.
3.3 The Fixed Rent shall increase at the end of every five -year period during the term
of this Lease commencing on the Fixed Rent Commencement Date by ten percent (10 %). Thus,
for example, beginning in the sixth year of the Lease Term the Fixed Rent shall be Thirty-Eight
Thousand Nine Hundred Fifty Eight and 33/100 Dollars ($38,958.33) and beginning in the
eleventh year of the Lease Term the Fixed Rent shall be Forty -Two Thousand Eight Hundred
Fifty Eight and 16/100 Dollars ($42,854.16), and beginning in the sixteenth year of the Lease
Term the Fixed Rent shall be Forty -Seven Thousand One Hundred Thirty Nine and 58/100 (47,
139.58), etc.
3.4 All amounts payable under Section 3.1 above, as well as all other amounts
payable by Lessee to Lessor under the terms of this Lease, shall be paid at the address of Lessor
set forth in Section 31.1, or at such other place within the continental limits of the United States Deleted:
DAL :0 1 03 3 93 /00007:223 973 M
1 Error! Unknown document property namee
25
as Lessor shall from time to time designate by written notice to Lessee, in lawful money of the
United States, which shall be legal tender in payment of all debts and dues at the time of
payment.
3.5 It is intended that the Initial Rent, the Fixed Rent and any Additional Rent
provided for in this Lease (together "Rent ") shall be an absolutely net return to Lessor
throughout the Lease Term, free of any expense, charge, or other deduction whatsoever,
including all claims, demands, or setoffs of any nature whatsoever, except as otherwise explicitly
provided in this Lease.
3.6 Except as may be provided in this Lease, Lessee shall also pay without notice and
without abatement, deduction, or setoff, as "Additional Rent," all sums, impositions, costs, and
other payments that Lessee in any of the provisions of this Lease assumes or agrees to pay, and
in the event of any nonpayment, but subject to the terms and provisions of this Lease and all
applicable laws, Lessor shall have (in addition to all other rights and remedies) all the rights and
remedies provided for in this Lease or by law or equity in the case of nonpayment of the Rent.
Section 4. Use
4.1 Notwithstanding any other provision of this Lease, Lessee may only use the
Premises, and the Premises Improvements, for a driving range and related clubhouse with
restaurant, bar, lounge, grill and event space, subject to the provisions of Section 4.2 (the
"Permitted Use "). Lessee shall not be permitted to conduct any of the driving range or
clubhouse operations on the Premises until the Golf Course Improvements described in Exhibit
"D" are substantially completed (which for purposes hereof means that the Golf Course
Improvements are completed subject to minor alterations or corrections, that is, "punch list"
items and that the nine -hole course, clubhouse, pro -shop and bathrooms are capable of being
open for business) as reasonably determined by Lessor. Lessor acknowledges and agrees that the
operation of a TopGolf driving range, restaurant, bar, lounge, grill and event space, that is
similar with regard to the current operations of that certain existing TopGolf facility located at
2700 Esperanza Crossing, Austin, Texas 78758 and is generally consistent with regard to its
construction with those renderings and descriptions attached hereto as Exhibits "D" and "G"
and by this reference incorporated herein (the "Prototype Facility "), including a driving range
and related teaching facilities and both indoor and outdoor cafd / bar / grill facilities serving
alcoholic beverages, and meeting and banquet facilities, also serving alcoholic beverages
(referred to herein as a "TopGolf Facility ") is a Permitted Use under this Section 4.1.
4.2 Lessee shall not use or occupy, or permit or suffer all or any part of the Premises
or any Premises Improvements to be used or occupied except as provided in Section 4.1 and
Lessee's use of the Premises is further restricted and cannot be used: (i) for any unlawful or
illegal business, use, or purpose, or (ii) for any purpose or in any way that is in violation of a
lawfully issued existing certificate of occupancy for the Premises, or of any "Legal
Requirements" (as defined below), including but not limited to "Legal Requirements" respecting
"Hazardous Substances" (as defined in Section 42). For the purposes of this Lease, the term
"Legal Requirements" means all present and future laws, ordinances, orders, judgments, rules, deleted: lI
DAL:0103393/00007:2239739v2
4
Error! Unknown document oroperty name
26
regulations, and requirements of all federal, state, regional, and municipal governments,
departments, agencies, commissions, boards, and officers, foreseen or unforeseen, ordinary as
well as extraordinary, applicable to the Premises or to the use or manner of uses of the Premises
or any Premises Improvements or the owners or users of any Premises Improvements.
4.3 Nothing contained in this Lease shall be deemed to be a gift or dedication of any
portion of the Premises to the general public or for the general public or for any public purpose
whatsoever, or an agreement to do so, it being the intention of Lessor and Lessee that this Lease
shall be strictly limited to and for the purposes herein expressed and strictly for the benefit of
Lessor and Lessee. Unless required otherwise by a governmental authority, Lessee shall take
commercially reasonable actions to prevent the Premises from being used by any individual or
entity, or the public, from and after the Premises Turnover Date, in such manner as might
reasonably make possible a claim or claims of adverse usage, adverse possession, or prescription,
or of implied dedication, of the Premises or any Premises Improvements or any portion thereof.
Section 5. Due Diligence; Condition of Premises
5.1 Unless earlier terminated pursuant to Section 5.5, Lessee shall have until twelve
(12) months from the Commencement Date (such period, as the same may be extended
hereunder, is referred to herein as the "Due Diligence Period ") to complete its due diligence
investigations of the Premises. During the Due Diligence Period, Lessee and Lessee's
authorized representatives, during normal business hours, shall have the right to enter upon the
Property for the purposes of conducting studies, inspections and investigations of the Property
(without unreasonably interfering with the operations of the current facilities located on the
Property) and analyzing all documents and matters pertaining to the Property as Lessee
reasonably deems necessary or desirable in connection with its leasing of the Premises, including
geotechnical, seismic, mechanical, engineering and environmental testing, and to satisfy itself in
its sole and absolute discretion that the Property is suitable for the Golf Course Improvements
and the Premises Improvements and Lessee's intended use of the Premises, including without
limitation, zoning classifications, building regulations, governmental entitlements, land use
entitlements permitting private recreational use at the Premises (including without limitation, a
general plan amendment, specific plan designation, alcohol permits, and lot line adjustments), a
determination under the California Environmental Quality Act ( "CEQA ") on all actions subject
to CEQA (including without limitation the leasehold interest that may be granted to Lessee under
this Lease), and all other legal matters applicable to the Premises (collectively, the "Required
Project Entitlements "), all at Lessee's sole expense (collectively, the "Investigation ").
Notwithstanding the foregoing, the Due Diligence Period may be extended by Lessee for an
additional sixty (60) days in duration by Lessee providing written notice to Lessor before the end
of the Due Diligence Period to secure the approvals it reasonably deems necessary for the
operation of the Premises as contemplated by this Lease. If Lessor has not received a notice
from Lessee that Lessee has elected to exercise a permitted extension of the Due Diligence
Period, then it shall be presumed that Lessee intended not to extend the Due Diligence Period
and the Due Diligence Period will be deemed to have expired and not been so extended. The
Due Diligence Period shall not exceed 425 days except in the event that any person or entity that Deleted:
is not a party to this Lease nor a guarantor of this Lease challenges any of the Required Project ( DAL:0 103 3 93 /00007 223 973 9v2
5
Error! Unknown document property name.
27
Entitlements, then the Due Diligence Period shall automatically be extended to end upon the
thirtieth (30th) day following the final disposition of any such challenge (i.e. the entry of a non -
appealable order of a court of competent jurisdiction dismissing such challenge, granting some or
all of the relief sought by such person or entity, or settlement of the challenge), provided that
Lessee is diligently defending and pursuing such challenge. Lessor and Lessee agree to
reasonably cooperate during the Due Diligence Period, including but not limited to Lessor
providing public information to Lessee in Lessee's efforts to obtain approvals from other
governmental agencies. Lessee agrees to make reasonable efforts to notify Lessor, a minimum
of twenty -four (24) hours before each entry onto the Premises and /or contact with employees on
the Premises.
5.2 Title Due Diligence. At the Premises Turnover Date, the real property comprising
the Premises must be free from all easements, encumbrances, or restrictions other than those set
forth on Exhibit "E ", which will be finalized and attached hereto within sixty (60) days from the
Commencement Date (the "Permitted Exceptions "). Lessee at its option may procure an
ALTA extended leasehold owner's policy of title insurance from Chicago Title Insurance
Company (the "Title Company" or "Escrowee ") which policy must be free and clear of any
exceptions or objections other than the Permitted Exceptions (the "Title Policy "). The Lessor
shall have no obligation to take any action to remove any exceptions or objections that the Title
Company may place on the Title Policy. The cost of a standard leasehold title policy and /or the
Title Policy shall be borne by Lessee.
Lessee shall use reasonable efforts to cause the Title Company to deliver to Lessee a Preliminary
Report issued by the Title Company covering the Premises (the "Preliminary Report "),
together with true and legible copies of all documents evidencing matters of record shown as
exceptions to title thereon ( "Underlying Documents ") as soon as practicable after the
Commencement Date. The Preliminary Report and Underlying Documents shall hereinafter
sometimes be collectively referred to as the "Title Documents ". Lessee shall have the right to
object to any exceptions contained in the Preliminary Report in Lessee's sole and absolute
discretion by giving written notice to Lessor within fifteen (15) business days after Lessee has
received the Title Documents. Lessee shall have the right to object to any matters revealed by the
Survey (as defined below) by giving written notice to Lessor within fifteen (15) business days
after Lessee has received the Survey. If Lessee disapproves of any matter affecting title or the
Survey (the "Title Disapproval "), Lessor shall have the option until 5:00 p.m. on the day that is
five (5) business days after delivery to Lessor of the Title Disapproval to elect in Lessor's sole
and absolute discretion by written notice to Lessee ( "Lessor's Title Response ") to (i) cure or
remove such disapproved matter(s) on or before the Premises Turnover Date or (ii) not cure
some or all of such disapproved matters, in which case Lessee may, by written notice to Lessor
within five (5) business days after Lessor's Title Response, elect to waive this contingency or
terminate this Lease (in which event the parties shall have no further obligations to one another
except with respect to the obligations that survive the termination of this Lease). Lessor's failure
to timely notify Lessee of its election aforesaid shall conclusively be deemed to be Lessors'
election not to cure any objection. If Lessee elects not to terminate this Lease as provided above,
Lessee agrees that the matters expressly approved or waived by Lessee in writing shall be Deleted:
'i
DAL:0103393/00007:2239739v2
IError: Unknown document property name*
M
attached to this Lease as Exhibit "E" as the "Permitted Exceptions "). Notwithstanding the
above, Lessor shall have no obligation to take any action to remove any exceptions or objections
that the Title Company may place on the Title Policy, whether or not Lessee disapproves such
matters. Lessee's approval of the Preliminary Report shall be without prejudice to Lessee's right
to disapprove the "Survey" (defined below) as provided above, or any supplementary reports
issued by Title Company except those that arise after the Premises Turnover Date. The cost of a
standard leasehold title policy and /or the Title Policy shall be borne by Lessee.
Within five (5) business days after the Commencement Date, Lessor shall provide Lessee with a
copy of any existing ALTA survey of the Real Property in Lessor's possession, if any (the
"Existing Survey "). Lessee shall be responsible, as its sole cost and expense, for thereafter
obtaining and paying for any update to the Existing Survey ( "Survey ") to meet the requirements
of Lessee or its lender for the Title Policy.
5.3 All Investigations shall be at the sole risk and expense of Lessee and Lessee shall
defend, indemnify and hold Lessor and its employees, agents, officers and elected officials,
(collectively the "Indemnified Parties ") harmless for, from and against any and all claims,
causes of action, demands, injuries, damages, costs, expenses (including reasonable attorneys'
fees) or liability (collectively, the "Liability ") imposed upon, suffered by, incurred by or
asserted against the Indemnified Parties as a result of or relating to the Investigations conducted
by or on behalf of Lessee in connection with the Property, except for damages resulting from the
negligence or willful misconduct of Lessor or those acting at its request or on its behalf or the
discovery of Hazardous Substances (as defined in Section 42) on the Property that were not
released on the Property by Lessee or its agents. However, if Lessee takes possession of the
Premises then it shall be responsible for all Hazardous Substance (as defined in Section 42)
clean -up costs that are required for purposes of completing the Premises Improvements on the
Property. Lessee shall maintain and shall cause any person performing work or investigation on
the Premises on behalf of Lessee to maintain a policy of comprehensive general liability
insurance with premiums fully paid, issued by an insurance company reasonably acceptable to
Lessee in an amount not less than $1,000,000.00 to insure the risks covered by the indemnity
provided above, which policy shall name the Indemnified Parties as insureds. The insurance
shall not act as a limit on Lessee's Liability. This indemnity shall survive any termination or
expiration of this Lease. Notwithstanding any other provision in this Lease, in the event that the
Conditions Precedent are not satisfied and Lessee does not take possession of the Premises, then
Lessee shall return the Golf Course and Premises to substantially their same condition as they
existed prior to the Commencement Date.
5.4 The following shall be conditions precedent to the Premises Turnover Date and
commencement of the Basic Term hereunder (items (i) through (xiii) shall be collectively
referred to as the "Conditions Precedent "): (i) (A) Lessee filed an application within ninety
(90) days of the Commencement Date for the Required Project Entitlements which Required
Project Entitlements Lessor or City Council may in its sole and absolute discretion either
approve or disapprove and (B) prior to the end of the Due Diligence Period, Lessee has obtained
such Required Project Entitlements; (ii)Lessee has prepared and the City has approved final Deleted:
building plans for the Golf Course Improvements and the Premises Improvements (collectively, DAL:01 03 3 93/00007:2239739v2
7
Error! Unknown document property name
29
the "Plans and Specifications "), which Plans and Specifications for the Golf Course
Improvements shall be approved by Lessor if they are consistent in all material respects with the
description of the Golf Course Improvements described on Exhibit "D ", and for the Premises
Improvements that shall be approved by the City if they are consistent in all material respects
with the Prototype Facility and all applicable zoning and building and safety laws and
regulations; (iii) Lessee has entered into construction contracts consistent with this Lease, for the
completion of the Golf Course Improvements on Exhibit "D" hereto, and 30 West Pershing
and /or TopGolf have entered into construction contracts consistent with this Lease, for the
completion of the Premises Improvements as described and depicted on Exhibit "B -1" hereto
but such shall not relieve Lessee as being obligated for completing such improvements, (iv)
Lessee has entered into a sub -lease of the Premises with 30 West Pershing and 30 West Pershing
has entered into a sublease with TopGolf USA El Segundo, LLC, a Delaware limited liability
company ("TopGolf') that requires TopGolf to operate the Premises for at least seven (7) years
in accordance with the Continuous Operation Requirement (the "Operating Period "); (v) Lessee
has delivered within ten (10) business days following the expiration of the Due Diligence Period
written notice to Lessor that it desires to have this Lease become effective ( "Due Diligence
Acceptance Notice "); (vi) Lessor and Lessee have obtained within sixty (60) days from the
Commencement Date an extension to the License in a form acceptable to the Lessor and Lessee
in their respective sole and absolute discretion; (vii) Lessee has received written confirmation
from Chevron USA, Inc., a Pennsylvania corporation ( "Chevron "), within thirty (30) days from
the Commencement Date approving of the Premises Improvements and use of the Premises as
contemplated by this Lease in a recordable form acceptable to Lessee in its sole and absolute
discretion (provided that, Lessee may, in is sole discretion, grant one or more extensions of the
foregoing thirty day period during which this Condition Precedent may be satisfied by delivery
of written notice to Lessor setting forth the time period of any such extension(s) but in no event
shall the initial thirty (30) day period and any extension thereto exceed the initial twelve month
portion of the Due Diligence Period set forth in Section 5.1, plus, if applicable, the sixty day (60)
day extension period); (viii) Lessor has in its sole and absolute discretion determined within sixty
(60) days from the Commencement Date that the CenterCal Guarantor has sufficient financial
strength to guarantee the construction of the Golf Course Improvements and the 30 West
Guarantor has sufficient financial strength to guarantee construction of the Premises
Improvements and the operation of the Premises during the Operating Period and to Guarantee
Rent payments through completion of the Golf Course Improvements and the Premises
Improvements as expressly required by this Lease and as set forth in the 30 West Pershing
Guarantee. In the event that despite Lessor's efforts as set forth above, the financial review of
the CenterCal Guarantor and the 30 West Guarantor cannot be completed within such 60 day
period, Lessor shall notify Lessee and the 60 day period shall be automatically extended for an
additional 30 days; (ix) (A) the 30 West Guarantor shall have executed the Guaranty in the form
attached hereto as Exhibit H and delivered such to the Lessor, and (B) the CenterCal Guarantor
.... -- -- - - -. ...... _........_
shall have executed the Guaranty in the form attached hereto as Exhibit H and delivered such to
Lessor (Delivery of these Guaranties shall also constitute performance of Condition Precedent
item (iv); and neither the 30 West Guarantor nor the CenterCal shall have withdrawn such
Guarantees within five (5) business days as set forth in Section 5.5 of this Lease; (x) Lessee shall
have entered into an irrevocable license with the Lessor that grants the Lessor ingress and egress
Error! Unknown document nroperty name-
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D93 /00 007:2 239739 J2
30
to and from the parking lot located on the Premises and the right to use seventy (70) parking
spaces on the parking lot on the Premises and provides that up to thirty (30) of such seventy (70)
parking spaces will be marked with appropriate signage to indicate that they are to be used
exclusively by the patrons of the Golf Course during the Golf Course's hours of operation as
provided in Exhibit "D" ("Parking License "); (xi) Lessor and Lessee have entered into an
Access Agreement granting Lessee the right to have access to the Golf Course to construct the
Golf Course Improvements; (xii) Lessee shall have prepared at its expense within one hundred
and twenty (120) days allrer the Coinineitceineiit_Date the le yal f«; riEslictirts for Exhibits A -1 and
A -2 for Lessor's approval, and (xii)i Lessor and Lessee shall have agreed upon the Land Value
(as defined in Section 17.2.1.1 hereof) in their respective sole and absolute discretion within 180
days from the Commencement Date. Notwithstanding any provision hereof to the contrary, the
parties agree and acknowledge that in connection with obtaining the Required Project
Entitlements Lessee will obtain a parking study from a third party consultant. In the event that
such parking study reveals that the parking requirements for the Golf Course and the Premises
require an adjustment of the total number of parking spaces needed for the Golf Course or that
providing Lessor with thirty (30) exclusive parking spaces during the Golf Course's hours of
operation as described in clause (x) hereof is incompatible with the Permitted Use and Lessor's
use of the Golf Course, then prior to the end of the Due Diligence Period, the parties shall work
together to modify the Parking License (and the number of parking spaces and exclusive parking
spaces granted thereunder) in such a manner so as to be compatible with the Permitted Use and
the Lessor's operation of the Golf Course.
5.5 Items (vi), (vii) and (viii) of Section 5.4 shall be collectively referred to as the
"Preliminary Conditions Precedent. ". If, on or before the expiration of the time periods set
forth for any of the Preliminary Conditions Precedent Lessee shall determine in its sole and
absolute discretion that any of the Preliminary Conditions Precedent will not be satisfied, then
Lessee may notify Lessor of such determination at any time before or within ten (10) days after
the expiration of such applicable time period that it has elected to terminate this Lease. With
respect to the Preliminary Conditions Precedent set forth in items (vi) and (viii) above, if, on or
before the expiration of the time periods set forth in items (vi) and (viii) above Lessor shall
determine in its sole and absolute discretion that items (vi) and (viii) will not be satisfied within
the applicable time period, then Lessor may notify Lessee of such determination at any time
before or within ten (10) days after the expiration of such applicable time period that it has
elected to terminate this Lease. Additionally, if Lessee does not file its application for the
Required Project Entitlements within the time period set forth in 5.4 (i)(A), then unless the
parties agree to extend the time period in writing, this Lease shall terminate except those
provisions that expressly survive a termination of this Lease. If this Lease is not so terminated by
either Lessee or Lessor, then Lessee shall continue with its Investigation and shall have the right
to terminate this Lease as set forth herein, including without limitation, the Conditions Precedent,
and Lessor shall have also have the right to terminate this Lease by notice to Lessee if the
Conditions Precedent are not satisfied within the Due Diligence Period; Lessee may terminate
this Lease for any reason at any time in its sole and absolute discretion during the Due Diligence
Period by notifying Lessor of such determination (the "Due Diligence Termination Notice "),
whereupon any termination by Lessor or Lessee this Lease and the obligations of the parties
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hereunder shall terminate (and no party hereto shall have any further obligations in connection
herewith except under those provisions that expressly survive a termination of this Lease). Each
party hereto agrees to diligently pursue the satisfaction of all Conditions Precedent within the
time frames set forth herein. In the event that Lessee determines to proceed with the leasing of
the Premises and all of the Conditions Precedent are satisfied and thereby waive its right to
terminate this Lease as provided in this Section 5.5, then Lessee shall notify Lessor of such
determination in writing on or before 5:00 p.m. (Pacific time) on the date that the Due Diligence
Period shall expire (the "Due Diligence Acceptance Notice "). If the Lessee delivers the Due
Diligence Acceptance Notice and neither the 30 West Guarantor or the CenterCal Guarantor
have withdrawn their Guarantees by providing written notice of such within five (5) business
days of the Due Diligence Acceptance Notice then the Guarantees shall be deemed to be in full
force and effect and the 30 West Guarantor and the CenterCal Guarantor shall have waived any
rights, if any, to claim that their respective Guarantees are not in full force and effect. If either
Guarantor has given written notice of the withdrawal of their Guaranty then this Lease shall be
deemed terminated and the parties shall have no further obligations under this Lease except those
that expressly survive the termination of this Lease. The Due Diligence Acceptance Notice shall
be deemed to be a confirmation from Lessee that the parties have entered into the sub - leases of
the Premises further described in clause (iv) of Section 5.4 hereof. In the event that Lessee shall
fail to deliver either the Due Diligence Termination Notice or the Due Diligence Acceptance
Notice to Lessor on or before 5:00 p.m. (Pacific time) on the date that is the tenth business day
following the expiration of the Due Diligence Period then this Lease shall expire and the
obligations of the parties hereunder shall terminate (and no party hereto shall have any further
obligations in connection herewith except under those provisions that expressly survive a
termination of this Lease). In addition to the foregoing, if, on or before the expiration of the Due
Diligence Period the Conditions Precedent have not been satisfied or the City does not approve
of the Required Project Entitlements, then this Lease and the obligations of the parties hereunder
shall terminate and no party hereto shall have any further obligations in connection herewith
except under those provisions that expressly survive a termination of this Lease. It is expressly
understood that the City is not committing to issuance of the Required Project Entitlements,
including the CEQA determination or that the Conditions Precedent shall otherwise be satisfied
by executing this Lease as such are subject to a separate discretionary land use entitlement
processes, including public hearings, and /or are outside of the City's control and /or are, as
applicable, subject to the approval of the City.
Within five (5) business days of the delivery by Lessee to Lessor of the Acceptance Notice, so
long as neither the 30 West Guarantor nor the CenterCal Guarantor have provided written notice
that it has withdrawn its Guarantee, Lessor and Lessee shall each execute a memorandum
evidencing this Lease that may be recorded by Lessee at Lessee's sole cost and expense and in
the form of Exhibit "F." If, for any reason at any time during the Term of this Lease the legal
description of the Premises changes, Lessor and Lessee agree to execute and record a new
Memorandum of Lease, modifying the original Memorandum to reflect such new legal
description. Notwithstanding the foregoing sentence, the parties are under no obligation to
modify the legal description of the Premises. In the event this Lease is terminated pursuant to
10
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the terms hereof the parties agree, upon written request of either party, to execute and record
evidence of such termination of the above Memorandum.
5.6 Notwithstanding anything in this Lease to the contrary, Lessee shall have no right
to terminate this Lease and 30 West Guarantor and Centercal Guarantor shall have no right to
terminate or diminish their obligations under their respective guarantees following the Premises
Turnover Date through the time that the Golf Course Improvements and the Premises
Improvements are completed and a certificate of occupancy has been issued for the Golf Course
and the Premises, except for termination due to a material default of this Lease by Lessor that
Lessor has not remedied after being notified of the default and afforded the opportunity to cure it
as provided in Section 19. Notwithstanding the foregoing, if, during construction of the Golf
Course Improvements or the Premises Improvements, Lessee discovers that due to the discovery
of Hazardous Substances (as defined in Section 42) on or under the Golf Course or Premises
after the Turnover Date which: (i) could not have not been reasonably discovered by Lessee as
part of its investigation of the Premises and Golf Course; or (ii) were not caused by Lessee, its
agents, contractors, employees, tenants, occupants or invitees or otherwise resulting from
Lessee's use of the Premises; and Lessee is not able to construct its contemplated Premises
Improvements in accordance with desired or approved plans, site plans and the Required Project
Entitlements, Lessee shall be obligated to return the Golf Course and Premises to the same or
better condition, including all improvements that existed thereon, they were in prior to the
Premises Turnover Date and terminate this Lease and the parties shall have no further rights or
obligations under this Lease except as expressly set forth herein.
5.7 Upon any termination of this Lease pursuant to this Section 5, and provided that
Lessor is not in default of any material provision hereunder, Lessee shall deliver to Lessor,
within ten (10) days of such termination and without any representation or warranty whatsoever
as to the truth, accuracy or completeness of such information and Lessor shall rely on such
information at Lessor's sole risk and expense, originals or copies of all studies, reports, maps,
documents and other material obtained by Lessee from third parties as part of Lessee's
Investigation that are in Lessee's possession and that Lessee is not expressly prohibited from
providing to Lessor.
5.8 All those provisions of this Section 5 whose full performance are not
accomplished prior to any termination of this Lease shall survive such termination to allow such
performance within a reasonable time. However, this provision shall not extend the Due
Diligence Period, provide additional time for satisfying the Conditions Precedent or in any way
result in a leasehold or other possessory interest to be created in the Lessee or any other party
with respect to the Premises or the Property.
Section 6. Liens
6.1 Except as otherwise specifically provided in this Lease, Lessee shall have no
power to do any act or to make any contract that may create or be the foundation for any lien,
mortgage, or other encumbrance on the reversion or other estate of Lessor, or on any interest of _ _ .. _ ....__
Lessor in the Property. Deleted:
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6.2 Lessee shall not suffer or permit any liens to attach to the interest of Lessor or the
interest of Lessee in all or any part of the Property by reason of any work, labor, services, or
materials done for, or supplied to, or claimed to have been done for or supplied to, Lessee or
anyone occupying or holding an interest in all or any part of any the Golf Course Improvements
on the Property or the Premises Improvements on the Premises through or under Lessee;
provided, that if any such lien shall at any time be fled against the Property, Lessee shall cause
the same to be discharged of record within sixty (60) days after the date of filing the same by
either payment, deposit, or bond. Lessee may, however, postpone its obligation to discharge a
lien arising out of work done by or for Lessee if Lessee provides Lessor or any prospective
purchaser of Lessor's fee interest with title insurance that insures Lessor's title and either: (i)
omits the lien, or (ii) insures against collection of the debt underlying the lien, and Lessee shall
not be in default of its obligations under this Section 6.2 during any such period of
postponement, provided such title insurance is provided within the aforesaid sixty (60) day
period, at Lessee's expense.
6.3 Subject to Section 12, unless otherwise set forth to the contrary herein, nothing in
this Lease shall be deemed to be, or be construed in any way as constituting, the consent or
request of Lessor, express or implied, by inference or otherwise, to any person, firm, or
corporation for the performance of any labor or the furnishing of any materials for any
construction, rebuilding, alteration, or repair of or to the Property or to any Golf
Course Improvements or Premises Improvements, or as giving Lessee any right, power, or
authority to contract for or permit the rendering of any services or the furnishing of any materials
that might in any way give rise to the right to file any lien against Lessor's interest in the
Property or against Lessor's interest, if any, in the Golf Course Improvements or Premises
Improvements. Lessee is not intended to be an agent of Lessor for the construction of any Golf
Course Improvements or Premises Improvements on the Property. Lessor shall have the right to
post and keep posted at all reasonable times on the Property and on any Golf Course
Improvements or Premises Improvements, any notices that Lessor shall be required to post for
the protection of Lessor, the Property, and of the Golf Course Improvements or Premises
Improvements from any such lien. The foregoing shall not be construed to diminish or vitiate
any rights of Lessee in this Lease to construct, alter, or add to any Golf Course Improvements or
Premises Improvements in accordance with the terms of this Lease.
Section 7. Utilities, Taxes, and Other Charges
7.1 Lessee shall pay or cause to be paid all charges for water, gas, electricity, garbage,
telephone, sanitary sewer, storm water, drainage, and any and all other services used by Lessee
in or upon the Premises or any Premises Improvements.
7.2 Subject to Section 7.7, Lessee shall pay and discharge, or cause to be paid and
discharged, before any fine, penalty, interest, or cost may be added for nonpayment, all real
estate taxes, personal property taxes, privilege taxes, excise taxes, business and occupation taxes,
gross sales charges, assessments (including but not limited to, assessments for public
improvements or benefits), and all other governmental impositions and charges of every kind and
nature whatsoever, whether or not now customary or within the contemplation of the parties and Deleted:
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regardless of whether the same shall be extraordinary or ordinary, general or special, unforeseen
or foreseen, or similar or dissimilar to any of the foregoing which, at any time during the Lease
Term following the Premises Turnover Date, shall be or become due and payable and which:
7.2.1 Shall be levied, assessed, or imposed against the Premises or any Premises
Improvements or any interest of Lessor or Lessee under this Lease; or
7.2.2 Shall be or become liens against the Premises or any Premises
Improvements or any interest of Lessor or Lessee under this Lease unless caused by or on behalf
of Lessor; or
7.2.3 Shall be levied, assessed, or imposed on or against Lessor by reason of
any actual or asserted engagement by Lessee, or by Lessor at the direction of, directly or
indirectly, in any business, occupation, or other activity in connection with the Premises or any
Premises Improvements; or
7.2.4 Shall be levied, assessed, or imposed on or in connection with the
ownership, leasing, operation, management, maintenance, repair, rebuilding, use, or occupancy
of the Premises or any Premises Improvements under or by virtue of any present or future Legal
Requirement, it being the intention of the parties that, insofar as the same may lawfully be done,
Lessor shall be free from all such expenses and all such real estate taxes, personal property taxes,
privilege taxes, excise taxes, business and occupation taxes, gross sales taxes, occupational
license taxes, water charges, sewer charges, assessments, and all other governmental impositions
and charges of every kind and nature whatsoever (all of such taxes, water charges, sewer
charges, assessments, and other governmental impositions and charges that Lessee is obligated to
pay being collectively called "Tax" or "Taxes ").
7.3 If by law any Tax is payable, or may at the option of the taxpayer be paid, in
installments, Lessee may, whether or not interest shall accrue on the unpaid balance, pay the
same, and any accrued interest on any unpaid balance, in installments as each installment
becomes due and payable, but in any event before any fine, penalty, interest, or cost may be
added for nonpayment of any installment or interest. With respect to any assessments for public
improvements or any similar assessments, Lessee may request amortization of such assessments
over the longest period permitted by governmental authority so long as such does not exceed the
Basic Term or any extension thereof exercised by Lessee. Lessee shall be obligated to pay off
any unpaid balance of any such installment payment plan upon the termination of this Lease.
7.4 Any Tax relating to a fiscal period of the taxing authority, a part of which is
within the Lease Term and a part of which is not within the Lease Term, shall be apportioned
and adjusted between Lessor and Lessee so that Lessee shall pay only the portions that
correspond with the portion of such fiscal periods included within such period. Any such
adjustments shall be resolved, as applicable, at the Premises Turnover Date and the expiration of
the Lease Term.
13
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35
7.5 Lessee covenants to furnish to Lessor, within thirty (30) days after the last date
when any Tax must be paid by Lessee as provided in this section, official receipts, if such
receipts are then available to Lessee, of the appropriate taxing authority, or other proof
reasonably satisfactory to Lessor, evidencing payment.
7.6 Lessee shall have the right at Lessee's expense to contest or review the amount or
validity of any Tax or to seek a reduction in the assessed valuation on which any Tax is based, by
appropriate legal proceedings. Lessee may defer payment of such contested Tax on condition,
however, that if such contested Tax is not paid beforehand and if such legal proceedings shall not
operate to prevent the enforcement of the collection of the Tax so contested and shall not prevent
the sale of the Premises or any Premises Improvements to satisfy the same, then before
instituting any such proceedings, Lessee shall furnish to Lessor a surety company bond, cash
deposit, or other security reasonably satisfactory to Lessor as security for the payment of such
Tax, in an amount sufficient to pay such Tax, together with all interest and penalties in
connection with such Tax and all charges that might be assessed against the Premises or any
Premises Improvements in the legal proceedings. On termination of such legal proceedings, the
security originally deposited shall be applied to the payment, removal, and discharge of the Tax
and the interest and penalties in connection with the Tax and the charges and costs accruing in
such legal proceedings and the balance, if any, shall be paid to Lessee. If such security shall be
insufficient for this purpose, Lessee shall forthwith pay over to Lessor an amount sufficient,
together with the security originally deposited, to pay the same. Lessee shall not be entitled to
interest on any money deposited pursuant to this section.
7.7 Any contest as to the validity or amount of any real or personal property tax, or
assessed valuation on which such tax was computed or based, whether before or after payment,
may be made by Lessee in the name of Lessor or of Lessee, or both, as Lessee shall determine,
and Lessor agrees that it will cooperate with Lessee in any such contest to such extent as Lessee
may reasonably request, and Lessee covenants to indemnify and save Lessor harmless from any
such costs or expenses. Lessee shall be entitled to any refund of any such Tax and penalties or
interest that have been paid by Lessee.
7.8 Lessee shall be responsible and shall pay or cause to be paid all costs directly or
indirectly related to Lessee's development and use of the Premises and Premises Improvements
constructed thereon.
7.9 The parties shall use reasonable efforts to see that all communications from
governmental authorities respecting Taxes are sent directly by such authorities to Lessee. The
certificate, advice, receipt, or bill of the appropriate official designated by law to make or issue
the same or to receive payment of any Tax or nonpayment of such Tax, shall be prima facie
evidence that such Tax is due and unpaid or has been paid at the time of the making or issuance
of such certificate, advice, receipt, or bill.
Section 8. Insurance
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Lessee, at its expense, shall maintain at all times during the Lease Term commercial
general liability insurance in respect of the Premises and use of the Premises with Lessor as
additional insured, with three million dollars ($3,000,000.00) in "Constant Dollars" (as defined
below) minimum combined single -limit coverage, or its equivalent. Such insurance shall include
contractual liability coverage in such amount for Lessee's indemnification and other obligations
contained herein. Such insurance policy shall be written as a primary policy and shall not be
contributing with or be in excess of the coverage that either Lessor or Lessee may carry and shall
be issued in the name of Lessee, with Indemnified Parties as being included in the insurance
policy definition of who is an additional insured, and shall be primary to any insurance available
to Lessor. Lessee shall also maintain during the Basic Term, at no expense to Lessor, fire and
extended coverage insurance sufficient to replace all Premises Improvements notwithstanding
the amounts set forth below. Such policies of insurance shall be issued by good, responsible
companies that are reasonably acceptable to Lessor and qualified to do business in the state of
California. An insurance certificate or certificates evidencing such insurance shall be delivered
to Lessor prior to the Commencement Date (evidencing coverage in the amount of One Million
Dollars ($1,000,000) covering the Due Diligence Period), and thereafter prior to the Premises
Turnover Date (evidencing coverage in the amount of three million dollars ($3,000,000)), and
renewal policies shall be delivered to Lessor within ten (10) days before the expiration of the
term of each such policy or policies. As often as any such policy or policies shall expire or
terminate, renewal or additional policies shall be procured and maintained by Lessee in like
manner and to like extent. All policies of insurance must contain a provision that the company
writing the policy will give Lessor thirty (30) days' written notice in advance of any cancellation,
non - renewal substantial change of coverage, or the effective date of any reduction in amount of
insurance.
During the term of this Lease, Lessor shall maintain, or cause to be maintained, in full
force and effect, on and with respect to the Golf Course, either proof of self - insurance, or
insurance through a joint powers authority, reasonably acceptable to Lessee in the amounts and
with additional insured requirements set forth in this paragraph or policies of. (i) commercial
general liability insurance, written on an "occurrence" policy form, with bodily injury and
property damage coverage arising out of or relating to Lessor's ownership, business operations,
use or occupancy of the Golf Course, which shall name Lessee, Lessee's first mortgagee, 30
West Pershing and 30 West Pershing's first mortgagee and TopGolf as additional insureds as
their respective interests may appear, and (ii) first party property insurance written on a "special
form" policy covering loss or damage to the improvements on the Golf Course for not less than
the amount of the full replacement value of such improvements. The limits of the commercial
general liability policy shall be at least Two Million Dollars ($2,000,000) per person, with a
combined single limit of not less than Three Million Dollars ($3,000,000.00) on a "per
occurrence" basis (bodily injury and property damage), or in such higher amounts and with such
additional coverages as Lessor may be required pursuant to agreement with any mortgage lender
of Lessor or pursuant to any other contractual agreement relating to the Golf Course or any part
thereof to which Lessor is a party. At Lessee's request, Lessor shall furnish appropriate
certificates of such insurance to Lessee.
15
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The insurance required of Lessee and Lessor by this provision or otherwise in this Lease
shall not limit such party's liability under any indemnity provision set forth in this Lease or any
other liability that such party may have under this Lease.
"Constant Dollars" shall mean the value of the U.S. dollar to which such phrase refers,
as adjusted from time to time. An adjustment shall occur on the 1 st day of June of the sixth (6"')
full calendar year following the date of this Lease, and thereafter at five (5) year intervals.
Constant Dollars shall be determined by multiplying the dollar amount to be adjusted by a
fraction, the numerator of which is the Current Index Number and the denominator of which is
the Base Index Number. The "Base Index Number" shall be the level of the Index for the year
of the Commencement Date; the "Current Index Number" shall be the level of the Index for
the year immediately preceding the adjustment year; the "Index" shall be the Consumer Price
Index for All Urban Consumers, published by the Bureau of Labor Statistics of the United States
Department of Labor for U.S. City Average, All Items (1982 -84 =100), or any successor index
thereto as hereinafter provided. If publication of the Index is discontinued, or if the basis of
calculating the Index is materially changed, then Lessor and Lessee shall substitute for the Index
comparable statistics as computed by an agency of the United States Government or, if none, by
a substantial and responsible periodical or publication of recognized authority most closely
approximating the result which would have been achieved by the Index.
Section 9. Lessor's Right to Perform Lessee's Covenants
9.1 If Lessee at any time fails to pay any Tax in accordance with the provisions of this
Lease or fails to make any other payment (other than Rent) or perform any other material act on
its part to be made or performed (in each instance, to the extent applicable, within the applicable
notice and cure periods provided in this Lease), then Lessor may (but shall be under no
obligation to):
9.1.1 Obtain the same on Lessee's behalf, and without waiving or releasing
Lessee from any obligation of Lessee contained in this Lease or from any default by Lessee and
without waiving Lessor's right to take such action as may be permissible under this Lease as a
result of such default, and after Lessee's failure to obtain any required liability insurance or
evidence thereof, procure such insurance and Lessee shall pay to Lessor the actual costs and
expenses thereof as applicable to that period of time between the expiration of such notice and
the date upon which Lessee provides such certificate or evidence of liability insurance to Lessee
as required hereinabove, and any actual costs incurred by Lessor in obtaining or terminating its
procured insurance; and/or
9.1.2 After ten (10) days prior written notice to Lessee which specifies what
action is required, perform the same on Lessee's behalf, make any other payment or perform any
other act on Lessee's part to be made or performed as provided in this Lease.
9.2 All sums so paid by Lessor and all actual costs and expenses incurred by Lessor,
in connection with the performance of any such act, shall constitute Additional Rent payable by
Lessee under this Lease and shall be paid by Lessee to Lessor on demand. Deleted:
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Section 10. Compliance with Legal Requirements
10.1 Throughout the Lease Term Lessee shall promptly comply with all Legal
Requirements (as defined in Section 4.2). To the extent that there is any change in Legal
Requirements such that the Permitted Use is no longer a lawful use of the Premises, Lessee may
terminate this Lease upon delivery of written notice to Lessor. Lessee shall pay all costs of
compliance with Legal Requirements.
10.2 Lessee shall have the right, after prior written notice to Lessor, to contest by
appropriate legal proceedings, diligently conducted in good faith, in the name of Lessee or
Lessor or both, without cost or expense to Lessor, the validity or application of any Legal
Requirement subject to the following:
10.2.1 If, by the terms of any Legal Requirement, compliance may legally be
delayed pending the prosecution of any such proceeding without the incurrence of any lien,
charge, or liability of any kind against all or any part of the Premises and without subjecting
Lessor to any liability, civil or criminal, for failure to comply, Lessee may delay compliance
until the final determination of such proceeding; or
10.2.2 If any lien, charge, or civil liability would be incurred by reason of any
such delay, Lessee nevertheless may contest the matter and delay compliance, provided that such
delay would not subject Lessor to criminal or civil liability or fine, and Lessee prosecutes the
contest with due diligence.
10.3 Lessor shall execute and deliver any appropriate papers, as determined in the
Lessor's sole discretion, that may be necessary, proper or desirable to permit Lessee to contest
the validity or application of any Legal Requirement, provided all the requirements of this
section have been satisfied by Lessee.
10.4 Each party shall promptly provide the other party, in the manner provided in
Section 31 below, copies of all material correspondence or other documents sent to or received
from governmental agencies or other persons: (i) relating to Lessee's development of the
Premises; and /or (ii) that may materially adversely affect the fair market value of the Premises.
10.5 Lessor represents and warrants to Lessee, that as of the Commencement Date and
as of the Premises Turnover Date:
10.5.1 Lessor shall not during the Lease Term initiate any action that would
create any encumbrances except for taxes, assessments and fees imposed pursuant to California
Constitution Articles XII C and D (or other applicable laws), that would adversely affect
Lessee's use, operation or occupancy of the Premises.
10.5.2 All persons and entities supplying labor, materials, and equipment to the
Premises have been paid, there are no claims of liens and there are no service contracts
applicable to the Premises. Deleted: 1
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17
Error: Unknown document property name$
39
10.5.3 To the best of Lessor's knowledge there is no action in the nature of
litigation, claim, investigation or other proceeding pending or to Lessor's best knowledge,
threatened against or affecting the Premises, the use thereof, or Lessor, or if there is, then Lessor
shall promptly disclose such matter to Lessee.
10.5.4 Lessor has not committed nor obligated itself in any manner whatsoever to
sell or lease the Premises to any person other than Lessee. Without limiting the generality of the
foregoing, no right of first refusal regarding the Premises exists. Lessor will not, prior to the
Premises Turnover Date, offer to or enter into any backup or contingent option or other
agreement to sell or lease the Premises to any other person.
10.5.5 Except for , which, however, will be unconditionally
and irrevocably terminated prior to the Premises Turnover Date there are no existing leases,
tenancies, rental agreements or entitlements or use agreements, or unrecorded restrictive
covenants affecting all or any portion of the Premises except for the Permitted Exceptions,.
10.5.6 Lessor is not a foreign person, nonresident alien, foreign corporation,
foreign partnership, foreign trust, or foreign estate, as those terms are defined in the Internal
Revenue Code and the Income Tax Regulations promulgated thereunder.
10.5.7 Lessor has made no untrue statements or representations in connection
with this Lease.
10.5.8 Lessor has to the best of its knowledge provided or made available to
Lessee all information in Lessor's possession that Lessee has requested, and Lessor to the best of
its knowledge has provided or made available to Lessee any public information or knowledge
actually obtained by Lessor of any change contemplated in any applicable laws, ordinances or
restrictions, or any judicial or administrative action, or any action by adjacent landowners, or
natural or artificial condition, financial or otherwise, which would prevent, limit or impede the
use of the Premises as contemplated by this Lease.
10.5.9 All documents delivered or made available to Lessee by or on behalf of
Lessor are to the best or Lessor's knowledge true and correct copies of the documents in Lessor's
possession.
10.5.10 Prior to the Premises Turnover Date, and except as otherwise provided in
this Lease, Lessor has: (i) performed all of its obligations under any lien indebtedness, and (ii)
except as expressly permitted by this Lease, not allowed any lien to attach to the Premises or
any portion thereof which is not discharged at the Premises Turnover Date, nor granted, created,
modified or permitted the creation of, any easement, right -of -way, encumbrance, restriction or
covenant affecting the Premises or any part thereof.
10.5.11 To Lessor's actual knowledge, except as may be contained in the written
materials delivered or made available to Lessee during the Due Diligence Period, Lessor is not
aware of the existence of Hazardous Substances (as defined in Section 42), at the Property. For ( Deleted: 1
DAL:0103393/00007:2239739v2 1
18
Error! Unknown document property name,.
purposes of this Section 10.5.11, the phrase "actual knowledge" shall mean the present, actual
knowledge of the City Manager ( "Lessor's Designated Representative ") with no duty of
investigation, inquiry or inspection. In no event shall Lessee be entitled to assert any cause of
action against Lessor's Designated Representative, nor shall such individual have any personal
liability whatsoever for any matter under or related to this Lease. Lessor represents and warrants
that Lessor's Designated Representative is the City Manager and the person on behalf of Lessor
most knowledgeable about the matters which are the subject of this Section.
Section 11. Operation, Repairs and Maintenance
11.1 Lessee shall maintain and repair or cause to be maintained and repaired the
Premises and any Premises Improvements Lessee constructs on the Premises, and off the
Premises but in conjunction with the development of the Premises and that Lessee is required by
Legal Requirements to maintain, as necessary to keep them in first -class order, condition, and
repair throughout the entire Lease Term after the Premises Turnover Date, at no cost to Lessor,
provided that during the periods that TopGolf is operating the Premises, this condition shall be
satisfied by keeping the Premises in a condition substantially comparable to other facilities
currently being operated by TopGolf. Lessor and Lessee agree that wherever in this Lease an
obligation is imposed on Lessee, Lessee, without being released from any of its obligations under
this Lease or requiring that the City pursue any party other than Lessee for performance of such
obligations, shall have the right to delegate responsibility for performing such obligations and
will delegate such responsibility for performing such obligations to TopGolf or to any other
occupant of the entire Premises approved by Lessor under Section 18 of this Lease (an
"Operator ") and performance of such obligation by TopGolf or the Operator in accordance with
the terms of this Lease shall be deemed performance by Lessee.
11.2 During the Lease term (i) Lessee shall operate or cause to be operated the ground
level (or other suitable portion) of the Premises Improvements as a driving range open for
business seven days a week from at least 6:00 a.m. until at least 9:00 p.m., other than on any
Specified Holidays and (ii) the remainder of the Premises Improvements, such that the same are
open for business seven days a week from at least 8:00 a.m. until at least 9:00 p.m., other than on
any Specified Holidays ( "Continuous Operation Requirement). The only exception to these
requirements shall be during periods of damage or destruction, condemnation, or when Lessee is
conducting alterations, routine repairs, maintenance and upgrades to the facilities and in such
cases Lessee shall work diligently to minimize the number of hours and /or days that the driving
range and/or restaurant are not open during the Continuous Operation Requirement. For
purposes hereof, "Specified Holidays" means collectively, the following holidays: New Year's
Day, President's Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, and
Christmas Day. Notwithstanding anything to the contrary contained or implied in this Lease, in
the event that at any time after the expiration of the Operating Period the Lessee provides written
notice that the Premises will not be operated by Top Golf or another Operator for the Permitted
Use (a "Non- Operation Notice "), then Lessee shall not be deemed to be in default so long as (i)
it is paying Rent and any other sums owing the Lessor hereunder in a timely manner, and (ii)
Lessee either terminates this Lease as provided below or reopens the Premises for business to the
public, in either event within two (2) years after any Non - Operation Notice (provided that any
19
Error! Unknown document property name„
Deleted:
DAL: 0103393/00007:2239739x2
41
replacement Operator of the driving range is approved by Lessor pursuant to Section 18 hereof).
Following receipt of the Non - Operation Notice, Lessor may notify Lessee that Lessor has elected
to operate the driving range or cause the driving range to be operated on an interim basis during
the period that the Premises is not open for business to the public, then Lessor shall then operate
the driving range or cause the driving range to be operated during the time period set forth in
Lessor's notice in accordance with the standards of operation set forth in this Lease until such
time as Lessee finds a new Operator for the Premises. In the event that Lessor elects to operate
the driving range as set forth above, Lessor shall operate the driving range pursuant to a month to
month sublease in form and content reasonably acceptable to Lessor, Lessee and 30 West
Pershing, which shall provide, among other things, for (i) the reduction of the Fixed Rent in an
amount equal to the monthly net revenues that Lessor derives from its operation of the Premises
(i.e. the aggregate gross revenues received by Lessor in connection with the operation of the
driving range minus all reasonable third party out of pocket costs incurred by Lessor in
connection with the operation of the driving range, as evidenced by monthly income and expense
reports and other reasonable back -up information reasonably requested by Lessee and /or 30 West
Pershing delivered to Lessee and 30 West Pershing by Lessor along with the monthly rental
payments), and (ii) the right of termination by Lessee or Lessor of the sublease upon thirty
business days' prior written notice upon Lessee identifying an Operator that will sublease the
Premises and operate the same for the Permitted Use.
Following the expiration of the Operating Period, including during the two year period following
delivery of the Non - Operation Notice, the Lessee shall have the right to terminate this Lease
upon thirty (30) days written notice to Lessor and shall be obligated to pay Rent and all other
sums due through the date of the termination of this Lease and no party hereto shall have any
further obligations in connection herewith except under those provisions that expressly survive a
termination of this Lease.
11.3 Lessee shall make driving bays available for youth sports and provide a ten
percent (10 %) discount for residents of the City of El Segundo that have City of El Segundo
Parks and Recreation Identification Cards. This discount will be in addition to all other
discounts offered by Lessee such as Elie twenty percent (20 %) discount offered to senior citizens Deleted: discounts
and active military personne)
11.4 During such times that Top golf is the operator it shall: (a) between the hours of
6:00 a.m. and 9.00 a.m. cliuree users of the portion of the Premises used as a driving, range fees
that are generally consistent with fees charged by other driving ranges open to Elie public that are
maintained in a similar first class condition; (b) provide discounted monthly user access cards for
firequent customers similar to those provided at other Top Golf facilities, (c) use commercially
reasonable efforts to promote youth and�jumior golf prams, including but not limited to
allowing the "Good Swings Happen" program to continue as well as associated camps, programs
and lessons ror junior and youth golfers: (dj utilize commercially reasonable efforts to allow i=olf
professionals, including those currently providing lessons and services on the Property. to
continue to provide lessons and services in a similar manner as they are currently provided on the
Property; (e) if the Site Plan (includin the he parking layout) will allow, use commercially
Deleted:
reasonable efforts to Include a putting practice element on the Premises to replace the exlstln DAL:0 1 03 3 93/00007 223 9 73 9v2
20
1:a'rur: E:nkn�+rn dncumanl nronrrfi nan�r -.
M
putting practice element on the Pro perty, (0 allow junior high school and high school players
attending schools located in El Segundo and Manhattan Beacli to use the portion of the Premises
used as a alri ing range_ between the hours of 2:30 p.m. and 5 :30 p.m. at no charge when such is
a farinal school practice event and at a rate conTmcnsurate with fees charged by other driving
ran es open to the public that are maintained in a first class condition _ when they are practicing
at other times (provided that such tunes are prior to 7 :00 Vim. Vocal timek and, ( 3 use
commercially reasonable efforts to introduce the game of golf to a wider audience and work with
PGA or America, PGA of Southern California, and the SCQA in this regard.
11.E Lessor shall not be required to furnish to Lessee any facilities or services of any Deleted: a
kind whatsoever during the Lease Term, including but not limited to, water, steam heat, gas, hot
water, electricity, light, and power. Lessor shall in no event be required to make any alterations,
rebuildings, replacements, changes, additions, improvements, or repairs to the Premises during
the Lease Term.
Mt Lessor assigns to Lessee such rights, if any, as Lessor may have against any
parties causing damage during the Lease Term to any Premises Improvements on the Premises,
to sue for and recover amounts expended by Lessee as a result of such damage.
Section 12. Development of the Golf Course Premises; Premises Improvements
12.1 Promptly following the Premises Turnover Date, Lessee shall at no cost or expense
to Lessor modify and demolish, as necessary, and improve (or cause to be modified and
demolished, as necessary, and improved) the Golf Course and Premises in accordance with the
Golf Course Improvements and Premises Improvements as set forth in this Lease, and diligently
prosecute the same to completion, provided that the Golf Course Improvements and Premises
Improvements shall be substantially in accordance with the Plans and Specifications approved by
Lessor as provided in this Lease, all applicable laws, building regulations, and other applicable
restrictions on the use of the Premises, and further provided that Lessee shall be responsible for
obtaining, at no cost or expense to Lessor, all governing and regulatory agency approvals and
permits that may be required in connection with such Golf Course and Premises Improvements.
Notwithstanding the foregoing, in the event that 30 West Pershing defaults in its construction
obligations under its sublease with Lessee after the expiration of any applicable notice and cure
periods set forth in this Lease, which would also constitute a default by Lessee, Lessee shall have
the right in its sole and absolute discretion to either: (a) complete the Premises Improvements as
provided above, or (b) terminate this Lease and return the Golf Course and Premises to the same
or better condition as they were in on the Premises Turnover Date. Lessee shall not be relieved
of any obligation to pay Rent or any other payment in the event of any such default by 30 West
Pershing or any other default hereunder by Lessee unless and until this Lease is terminated as set
forth above in (b) and the Lessor is in possession of the Golf Course and the Premises and both
have been returned to the same or better condition as they existed prior to the Premises Turnover
Date. No action by Lessee to complete the Premises Improvements shall alter or diminish the
30West Pershing Guarantee. All improvements to the Golf Course and the Premises shall be
completed within ten (10) months of the Premises Turnover Date, subject to events of force
majeure and delays caused by Lessor.
21
IErrurl thtknown document m'nnertti name.
Deleted: 5
Deleted:
DAL:0103393/00007:2239739v2
43
12.2 Lessor and Lessee shall meet and attempt to agree on a plan, including but not
limited to addressing any and all construction, operational and liability issues, that would result
in keeping the Golf Course, or portions thereof, open for business during the construction of the
Golf Course Improvements and the Premises Improvements, and Lessee shall be entitled to
retain fifty percent (50 %) of any net revenue resulting from the Golf Course operations for the
period commencing on the Premises Turnover Date and ending on the Fixed Rent
Commencement Date or until the Golf Course Improvements are completed and the Golf Course
is capable of being operated in accordance with Section 4.1 of this Lease before the expiration of
such ten month period. Notwithstanding the foregoing Lessee shall retain in its sole and absolute
discretion the absolute and unconditional right to shut down the Golf Course operations or
portions thereof at any time during the period commencing on the Premises Turnover Date and
ending on the Fixed Rent Commencement Date. Within ninety (90) days after the
Commencement Date, Lessee shall deliver to Lessor the conceptual Golf Course Improvement
Plans and Specifications for Lessor's approval as provided in Section 5.4 of this Lease.
12.3 Lessor shall review and approve the Plans and Specifications, such approval not to
be unreasonably withheld, conditioned or delayed, and /or provide Lessee with its comments
within thirty (30) days after Landlord's receipt of the Plans and Specifications. If disapproved
Lessee shall make all necessary revisions within ten (10) days after Lessee's receipt thereof. This
procedure will be repeated until Lessor ultimately approves the conceptual Plans and
Specifications or until this Lease is terminated in accordance with Section 5.4 and /or 5.5 hereof.
Notwithstanding the foregoing, the conceptual Plans and Specifications for the Premises
Improvements shall be approved if they are consistent in all material respects with the Prototype
Facility and all applicable zoning and building and safety laws and regulations, and the
conceptual Plans and Specifications for the Golf Course Improvements shall be approved if they
are consistent in all material respects with Exhibit "D" and all applicable zoning and building
and safety laws and regulations.
Section 13. Title to Premises Improvements
Title to any Premises Improvements and any modifications, additions, restorations,
repairs and replacements thereof hereafter placed or constructed by or through Lessee shall be
and remain in Lessee until the expiration or termination of the Lease Term. On such expiration
or sooner termination, title to any Premises Improvements shall automatically pass to, vest in,
and belong to Lessor without further action on the part of either party and without cost or charge
to Lessor in accordance with Section 26.2 hereof, provided, however, that no lien rights created
or allowed by Lessee or any assignee or sublessee shall extend beyond the Lease Term. During
the Lease Term, Lessee shall be entitled, for all taxation purposes, to claim cost recovery
deductions and the like on any Premises Improvements.
Section 14. No Waste
Lessee shall not intentionally commit any material waste on or to the Premises. Deleted:
D A1.:0 1033 93 /00007:223 9 73 M
22
Error! Unknown document property name*
Ell]
Section 15. Inspection and Access
Lessor shall have the right to enter on the Premises and any Premises Improvements at all
reasonable times during usual business hours upon not less than three (3) business days' notice
for the purpose of preventing the creation of any prescriptive rights to any third person, allowing
inspection by mortgagees, and, within one hundred eighty (180) days of the expiration of the
Lease Term, Lessor shall have the right to enter the Premises for the purpose of showing the
Premises to prospective lessees or purchasers. Notwithstanding anything to the contrary herein,
any access given to Lessor to enter the Premises for the purposes explicitly stated above shall be
subject to Lessee's reasonable security rules and regulations. Lessee reserves the right to
accompany Lessor at all times during any entry by Lessor. Lessor shall use commercially
reasonable efforts to minimize any interference with the day to day operations of the Premises in
exercising any of its rights under this Section 15. In the event any subtenant has the right to
abate rent, as a result of Lessor's activities under this Section 15, then Lessee shall be entitled to
an abatement of Fixed Rent to the extent of such subtenant rent abatement, less any rent loss
insurance proceeds received by Lessee, provided that Lessee has given Lessor prior written
notice of the terms of such subtenant abatement rights.
Section 16. Lessor's and Lessee's Exculpation and Indemnity
16.1 After the Premises Turnover Date, Lessee is and shall be in exclusive control of
the Premises and of any Premises Improvements, and except as otherwise provided herein,
Lessor shall not in any event whatsoever be liable for any injury or damage to any property or to
any person happening on, in, or about the Premises or any Premises Improvements or any injury
or damage to the Premises or any Premises Improvements or to any property, whether belonging
to Lessee or to any other person, caused by any fire, flooding, earthquake, storm, act of God,
terrorist act, breakage, leakage, defect, or bad condition in any part or portion of the Premises or
of any Premises Improvements, or from steam, gas, electricity, water, or rain, that may leak into,
or issue or flow from any part of the Premises or any Premises Improvements from the drains,
pipes, or plumbing work of the same, or from the street, subsurface, or any place or quarter, or
due to the use, misuse, or abuse of all or any of any Premises Improvements or from any kind of
injury that may arise from any other cause whatsoever on the Premises or in or on any Premises
Improvements, including defects in construction of any Premises Improvements, latent or
otherwise. Notwithstanding the foregoing, Lessor shall indemnify, defend and hold harmless
Lessee from and against all claims and all costs, expenses, and liabilities incurred in connection
with all claims, including any action or proceeding brought thereon, arising from or as a result
of (i) any accident, injury, loss, or damage whatsoever caused to any person or to the property of
any person, as shall occur on or about the Premises prior to the Premises Turnover Date, except
to the extent such is caused by the negligent or wrongful acts of the Lessee, (ii) any failure on the
part of Lessor to perform or comply with any of the covenants, agreements, terms, provisions,
conditions, or limitations contained in this Lease on its part to be performed or complied with, or
(iii) any negligent act of Lessor or the agents, contractors, servants, or employees of Lessor. In
case any action or proceeding is brought against Lessee by reason of any claims covered in this
Section 16.1, Lessor on written notice from Lessee shall, at Lessor's expense, resist or defend
Deleted:
! DAL:0103393/00007:2239739v2
23
Error! Unknown document Property name,
45
such action or proceeding by counsel approved by Lessee in writing, which approval shall not be
unreasonably withheld, conditioned or delayed.
16.2 To the extent not caused by the negligence or willful misconduct of Lessor or its
official, officers, agents, employees or contractors, Lessee shall indemnify, defend and hold
Lessor harmless for, from and against all liabilities, obligations, damages, penalties, claims,
costs, charges, and expenses, including reasonable attorneys' fees, that may be imposed on or
incurred by or asserted against Lessor by reason of or in any way related to any of the following
occurrences following the Premises Turnover Date:
16.2.1 Any work done in, on, or about all or any part of the Property by or on
behalf of Lessee, 30 West Pershing or TopGolf or any Premises Improvements related to the use,
occupancy or development of the Property by or on behalf of Lessee, 30 West Pershing or
TopGolf;
16.2.2 Any use, nonuse, possession, occupation, condition, operation,
maintenance, or management of all or any part of the Premises or any Premises Improvements;
16.2.3 Any negligence or willful misconduct on the part of Lessee or any of its
agents, contractors, servants, employees, sublessees, licensees, or invitees;
16.2.4 Any accident, injury, or damage to any person or property occurring in,
on, or about the Premises or any Premises Improvements; or
16.2.5 Any failure on the part of Lessee to perform or comply with any of the
covenants, agreements, terms, provisions, conditions, or limitations contained in this Lease on its
part to be performed or complied with.
16.3 [Intentionally Omitted]
16.4 In case any action or proceeding is brought against Lessor by reason of any claims
covered in Section 16.2, Lessee on written notice from Lessor shall, at Lessee's expense, resist
or defend such action or proceeding by counsel approved by Lessor in writing, which approval
shall not be unreasonably withheld, conditioned or delayed.
16.5 If Lessor or Lessee asserts any claim against the other party by reason of the other
party's ownership interest, the party asserting the claim shall have no claim against the other
party's officers, directors, employees or agents.
16.6 The provisions of this Section 16 shall survive any termination of this Lease.
Section 17. Condemnation
17.1.1
24
IError! Unknown document property name!
Deleted: 1
DAL:0103393/00007:2239739v2
M
17.1 If all the Premises and Premises Improvements are taken or condemned, by right
of eminent domain or by purchase in lieu of condemnation, or if such portion of the Premises or
any Premises Improvements shall be so taken or condemned that the portion remaining is not
sufficient and suitable for operation of a commercial driving range and restaurant, in Lessee's
reasonable judgment, to permit the restoration of any Premises Improvements following such
taking or condemnation or for Lessee's use of the Premises, then this Lease and the Lease Term,
at Lessee's option, shall cease and terminate as of the date on which the condemning authority
takes possession or title (any taking or condemnation of the land described in this section being
called a "Total Taking "), and the Fixed Rent and Additional Rent shall be apportioned and paid
to the date of such Total Taking.
17.2 If this Lease expires and terminates as a result of a Total Taking, the rights and
interests of the parties shall be determined as follows:
17.2.1 The total award or awards for the Total Taking shall be apportioned and
paid to Lessee and Lessor in Proportionate Shares. For purposes hereof, the "Proportionate
Shares" of Lessee and Lessor shall be expressed as a percentage of the whole and shall be
calculated as of the date of the Total Taking, as follows: (i) Lessor's Proportionate Share shall
equal the percentage obtained by dividing the Land Value by the Aggregate Sum, and (ii)
Lessee's Proportionate Share shall equal the percentage obtained by dividing the Amortized
Improvements Cost by the Aggregate Sum. In the event that the Golf Course is condemned then
as between Lessor and Lessee (and the CenterCal Guarantor and the 30 West Guarantor) any
condemnation award with respect to the Golf Course or Golf Course Improvements shall be
exclusively awarded to the City.
17.2.1.1 The term "Land Value" shall mean the fair market value of
the land and the driving range improvements currently located thereon (prior to any development
activity of Lessee or its sublessees or assigns) as determined as of the date of this Lease and
without regard to this Lease, but encumbered by the License Agreement as the same may be
amended pursuant to Section 5.4, the use restriction on the Premises imposed by Chevron in that
certain Corporation Grant Deed form Chevron to Lessor, dated May 16, 1988 and recorded in the
Official Records of Los Angeles County, California on May 24, 1988 as Instrument No. 88
826097 and any other liens or encumbrances existing as of the date of this Lease not including
this Lease. Lessor and Lessee will work in good faith to agree upon the Land Value within 180
days from the Commencement Date. Each of Lessee and Lessor may, at its sole cost and
expense, retain one or more appraisers or other valuation consultants to perform appraisals or
other analyses of the Land Value and assist with the determination of the Land Value hereunder.
Following the agreement of Lessor and Lessee with regard to the Land Value, such Land Value
shall remain fixed and shall not be subject to adjustment hereunder.
17.2.1.2 The term "Amortized Improvements Cost" shall mean at
a given point in time the then unamortized cost of the Premises Improvements (i.e. the aggregate
cost of the Premises Improvements as amortized using 40 year straight line depreciation
commencing on the date that rent commences under the Sublease with 30 West Pershing through — - - -- - - - - - -- - -- -}
the date of the Total Taking hereunder). Deleted:
DAL:01033 93/00007:223 973 9v2
25 _._ _.
Error! Unknown document orooerty name_
47
17.2.1.3 The term "Aggregate Sum" shall mean, at any given point
in time, the sum of the Land Value and the Amortized Improvements Cost.
17.3 If, during the Lease Term, there is a taking or condemnation of the Premises or
any Premises Improvements that is not a Total Taking and not a temporary taking of the kind
described below, or if there is a change in the grade of the streets or avenues on which the
Premises abuts, this Lease and the Lease Term shall not cease or terminate, but shall remain in
full force and effect with respect to the portion of the Premises and of any Premises
Improvements not taken or condemned (any taking or condemnation or change of grade of the
kind described in this section being referred to as a "Partial Taking "), and in such event:
17.3.1 The total award or awards for the taking shall be apportioned and paid to
Lessee and Lessor in Proportionate Shares (as calculated as of the date of the Partial Taking).
17.3.2 Following any such taking or condemnation, Rent shall be equitably
abated based on the portion of the Premises taken.
17.4 In the event of a taking of all or a part of the Premises or any Premises
Improvements for temporary use, this Lease shall continue without change, as between Lessor
and Lessee, and Lessee shall be entitled to the entire award made for such use; provided that
Lessee shall be entitled to file and prosecute any claim against the condemnor for damages and
to recover the same, for any negligent use, waste, or injury to the Premises or any Premises
Improvements throughout the balance of the then - current Lease Term. The amount of damages
so recovered shall belong to Lessee.
17.5 In the event of any dispute between Lessee and Lessor regarding any issue of fact
arising out of a Taking mentioned in this Section 17, such dispute shall be resolved by the same
court in which the condemnation action is brought, in such proceedings as may be appropriate
for adjudicating the dispute.
Section 18. Assignment and Sublease
18.1 Lessee shall have the right, to assign this Lease or any interest therein, and shall
further have the right to sublease or sublet all or any portion or portions of the Premises or any
interest therein, with the Lessor's consent which may be withheld in the Lessor's reasonable
discretion based upon the financial strength of the proposed assignee or subtenant and its
experience in operating commercial driving ranges and restaurants. Any such assignment or
subletting by Lessee shall also be subject to all the following provisions:
18.1.1 Lessee shall not then be in default under this Lease beyond the expiration
of any applicable notice and cure period;
18.1.2 The assignee of Lessee shall expressly assume in writing all of Lessee's
obligations hereunder from and after the effective date of any such assignment;
26
Error! Unknown document nronerk% name'
Deleted:
DAL:0103393/00007:2239739v2
I •
18.1.3 Any sublease shall be subject to the terms and provisions of this Lease
with respect to such subtenant's or occupant's use and occupancy of the premises in question and
shall not work to alter any term or condition of this Lease;
18.1.4 Except as provided hereinbelow, no such subleasing or assignment shall
relieve Lessee from liability for payment of Rent herein provided or from the obligations to
observe and be bound by the terms, conditions, and covenants of this Lease. No transfer of
corporate shares of Lessee, if Lessee is a corporation, unless such transfer of shares will result in
a change in the present voting control of the Lessee by the person or persons owning a majority
of said corporate shares on the date of this Lease, shall constitute an assignment and be subject to
the conditions of this Section 18.2. Notwithstanding the foregoing, after completion of the Golf
Course Improvements and the Premises Improvements and payment of all Rent owing as of the
effective date of the assignment, Lessee shall be released from any and all further liabilities
under this Lease from and after the effective date of an assignment of this Lease to either: (i) an
assignee entity, that is not a so called "special purpose entity," which has a net current worth and
net tangible assets at the time of the assignment, determined according to generally accepted
accounting principles consistently applied, of not less than Ten Million Dollars ($10,000,000.00)
in Constant Dollars as defined in Section 8, or (ii) an approved assignee entity (as provided
above), that is a so called "special purpose entity," which is able to demonstrate to Lessor's
reasonable satisfaction the prospective financial ability and fiscal resources (which may include,
but shall not be limited to, the cash flow from the business operations conducted or to be
conducted on the Premises) to fulfill the monetary obligations of Lessee under this Lease; so
long as the assignee also has significant experience in operating a commercial driving range and
restaurant. Lessee's release from liability pursuant to subsection (ii) of this Section 18.2.4 (i)
shall be effective only if Lessee provides Lessor within thirty (30) days of request therefor a
copy of the assignment and reasonable evidence of the assignee's qualifications hereunder (and
Lessor shall have sixty (60) days thereafter to review such evidence and render a reasonable
determination in writing to the Lessee); and
18.1.5 Provided that Lessee, within sixty (60) days following final execution of
any sublease or other occupancy agreement for the Premises, provides Lessor with a copy of
such sublease or occupancy agreement certified by Lessee to be a true and correct copy thereof,
and further provided that Lessee does not thereafter amend such sublease or occupancy
agreement without providing to Lessor a similar certification within sixty (60) days following
final execution thereof along with a copy of the sublease or occupancy agreement as amended as
well as such other and further documentation that is reasonable and necessary to adequately
review the financial strength and experience of the proposed sublessee, Lessor shall have sixty
(60) days to provide written notice to Lessor of its approval or rejection of such sublease or other
occupancy agreement. If Lessor approves of such subtenant or other occupancy agreement,
within sixty (60) days following Lessee's written request therefor, Lessor shall execute such
other documents or instruments as may be reasonably requested by any subtenant or occupant of
the Premises affirming and evidencing Lessor's recognition of the sublease or occupancy
agreement in question as provided hereinabove so long as: (i) the term of the sublease, inclusive
of renewal options, shall not exceed the Lease Term, (ii) the subtenant's permitted use is not in Deleted:
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Error! Unknown document properly name*
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violation of Section 4 hereof, and (iii) the subtenant certifies that the sublease is subject to the
terms and provisions of this Lease with respect to such subtenant's or occupant's use and
occupancy of the premises in question.
Notwithstanding the foregoing, Lessor hereby approves the sublease of the Premises to 30 West
Pershing and the sublease of the Premises from 30 West Pershing to TopGolf so long as such
subleases do not alter the terms or conditions of this Lease. Lessor also agrees that in the event
that Lessor terminates this Lease as a result of any Event of Default by Lessee, it shall deliver
written notice to 30 West Pershing and Top Golf of such termination and shall provide 30 West
Pershing and Top Golf with thirty (30) days in which to agree as between themselves as to
whether one or both of them will enter into a lease of the Premises on the identical rental and
other terms and conditions as this Lease,(and Lessor shall afford them the opportunity to enter
into such lease during such thirty (30) day period)-which shall take effect ilnmediatcly upon
termination of this lease; provided that (i) in connection with its execution and delivery of such
lease, 30 West Pershing and /or Top Golf pays Lessor any unpaid Rent owing by Lessee to
Lessor under this Lease (as determined without regard to any acceleration of or addition to any
such Rents pursuant to Section 20.2.4 hereof) and cures any existing defaults that are capable of
being cured by a person or entity other than the Lessee or Centel-Cal Guarantor, and (ii) in the
event that Lessee disputes any such termination of this Lease, and Lessor and /or Lessee bring
legal action to determine its rights hereunder, 30 West Pershing (and Operator) shall have the
right to continue to occupy the Premises during the pendency of such legal action (provided they
continue to pay Rent and other sums to Lessor as they become due hereunder, as determined
without regard to any acceleration or addition to Rents pursuant to Section 20.2.4 hereof) and
Lessor shall provide 30 West Pershing or TopGolf, as applicable, the right to enter into the new
lease as described above during the thirty (30) day period after a court of competent jurisdiction
determines that this Lease has terminated or Lessee agrees or otherwise concedes that this Lease
has terminated.
18.2 If this Lease is assigned to any person or entity pursuant to the provisions of the
Bankruptcy Code, 11 USC § 101, et seq. (the "Bankruptcy Code "), any and all monies or other
consideration payable or otherwise to be delivered to Lessor shall (subject to the Bankruptcy
Code) be and remain the exclusive property of Lessor and shall not constitute property of Lessee
within the meaning of the Bankruptcy Code. Any and all monies or other considerations
constituting Lessor's property under the preceding sentence not paid or delivered to Lessor shall
be held in trust for the benefit of Lessor and be promptly paid or delivered to Lessor. Any
person or entity to which this Lease is assigned pursuant to the provisions of the Bankruptcy
Code shall be deemed without further act or deed to assume all of the obligations arising under
this Lease. Any such assignee shall upon demand execute and deliver to Lessor an instrument
confirming such assumption.
18.3 The exercise of any right or other action under this Section 18 shall not diminish or
alter the obligations of 30 West Guarantor or CenterCal Guarantor under their respective
guaranties.
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Section 19. Lessor Default; Remedies
19.1 If Lessor, whether by action or inaction, is in default of any of its obligations
under this Lease and such default continues and is not remedied within thirty (30) days after
Lessee has given Lessor written notice of the same (or, in the case of a default that can be cured
but not within such period of thirty (30) days, if Lessor has not: (i) commenced curing such
default within such thirty (30) day period, (ii) notified Lessee within such thirty (30) day period
of Lessor's intention to cure the default, and (iii) continuously and diligently completed the cure
of the default), except as otherwise expressly set forth in this Lease Lessee shall be entitled to
pursue any right or remedy available to Lessee under this Lease, at law or in equity, including,
without limitation: (a) the right to specific performance, and (b) the right to cure such default and
deduct the cost of curing such default from the Rent payable under this Lease.
19.2 No failure by Lessee to insist on the strict performance of any agreement, term,
covenant, or condition of this Lease or to exercise any right or remedy consequent on a breach,
and no payment of Rent during the continuance of any such breach, shall constitute a waiver of
any such breach or of such agreement, term, covenant, or condition. No agreement, term,
covenant, or condition to be performed or complied with by Lessor, and no breach by Lessor,
shall be waived, altered, or modified, except by a written instrument executed by Lessee. No
waiver of any breach shall affect or alter this Lease, but each and every agreement, term,
covenant, and condition of this Lease shall continue in full force and effect with respect to any
other then- existing or subsequent breach.
19.3 Each right and remedy provided for in this Lease in favor of Lessee shall be
cumulative and shall be in addition to every other right or remedy provided for in this Lease or
now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or
beginning of the exercise by Lessee of any one or more of the rights or remedies provided for in
this Lease or now or hereafter existing at law or in equity or by statute or otherwise, shall not
preclude the simultaneous or later exercise by the party in question of any or all other rights or
remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute
or otherwise.
Section 20. Lessee Default; Remedies
20.1 The occurrence of any one or more of the following shall constitute a breach of
this Lease by Lessee and an "Event of Default ":
20.1.1 If Lessee defaults in the payment of Rent or any other payment due and
payable by Lessee or the provision of insurance, and such default continues for ten (10) days
after Lessor has given Lessee a written notice specifying the same; or
20.1.2 If Lessee, whether by action or inaction, is in default of any of its
obligations under this Lease (other than a default in the payment of Rent or the provision of Deleted:
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insurance by Lessee) and such default continues and is not remedied within thirty (30) days after
Lessor has given Lessee a written notice specifying the same, or, in the case of a default that can
be cured but not within a period of thirty (30) days, if Lessee has not: (i) commenced curing such
default within such thirty (30) day period, (ii) notified Lessor of Lessee's intention to cure the
default, and (iii) continuously and diligently completed the cure of the default, not to exceed five
(5) months with respect to a failure to comply with the Continuous Operation Requirement. For
purposes of this provision, except for the Continuous Operation Requirement, the filing of and
diligent prosecution of successful litigation by Lessee against any sublessee to effect such cure
(including any such litigation to gain possession of the Premises from 30 West Pershing or its
successor) shall constitute commencement of and continuous and diligent completion of cure of
default so long as Rent is paid when due hereunder.
20.2 On the occurrence of an Event of Default and subject to Lessor's obligations as
provided under this Lease and under California law to mitigate Lessor's damages, Lessor shall
be entitled to pursue any right or remedy available to Lessor under this Lease, at law or in equity,
including, without limitation: (a) the right to specific performance, and (b) any one or more of
the remedies set forth in this section or any other remedy specifically set forth in this Lease.
20.2.1 Subject to Section 20.2.3, Lessor or Lessor's agents and employees may
immediately, or at any time thereafter, reenter the Premises either by summary eviction
proceedings or by any available action or proceeding at law or equity, without being liable to
indictment, prosecution, or damages (except for any damages caused by their negligence or
willful misconduct), and may repossess the same, and may remove any person from the
Premises, to the end that Lessor may have, hold, and enjoy the Premises.
20.2.2 Lessor may relet the whole or any part of the Premises from time to time,
either in the name of Lessor or otherwise, to such lessees, for such terms ending before, on, or
after the termination of the Lease
20.2.3 Whether or not Lessor retakes possession or relets the Premises, Lessor
has the right to recover its damages, including, without limitation, all lost rentals, all reasonable
costs incurred by Lessor in restoring the Premises or otherwise preparing the Premises for
reletting, and all reasonable costs incurred by Lessor in reletting the Premises.
20.2.4 To the extent permitted under California law: (i) Lessor may sue
periodically for damages as they accrue without barring a later action for further damages; and
(ii) Lessor may, in one action, recover accrued damages plus damages attributable to the
remaining Lease Term equal to the difference between the Rent reserved in this Lease for the
balance of the Lease Term after the time of award, and the fair rental value of the Premises for
the same period, discounted at the time of award at a reasonable rate not to exceed twelve
percent (12 %) per annum. To avoid a multiplicity of actions, Lessor may obtain a decree of
specific performance requiring Lessee to pay the damages stated in Sections 20.2.3 and 20.2.4 as
they accrue.
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20.2.5 Termination of this Lease shall not constitute a waiver of Lessor's other
remedies nor an election of remedies.
20.3 No failure by Lessor to insist on the strict performance of any agreement, term,
covenant, or condition of this Lease or to exercise any right or remedy consequent on a breach,
and no acceptance of full or partial Rent during the continuance of any such breach, shall
constitute a waiver of any such breach or of such agreement, term, covenant, or condition. No
agreement, term, covenant, or condition to be performed or complied with by Lessee, and no
breach by Lessee, shall be waived, altered, or modified, except by a written instrument executed
by Lessor. No waiver of any breach shall affect or alter this Lease, but each and every
agreement, term, covenant, and condition of this Lease shall continue in full force and effect with
respect to any other then - existing or subsequent breach.
20.4 Each right and remedy provided for in this Lease in favor of Lessor shall be
cumulative and shall be in addition to every other right or remedy provided for in this Lease or
now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or
beginning of the exercise by Lessor of any one or more of the rights or remedies provided for in
this Lease or now or hereafter existing at law or in equity or by statute or otherwise, shall not
preclude the simultaneous or later exercise by the party in question of any or all other rights or
remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute
or otherwise.
Section 21. No Abatement of Rent; Encroachments
21.1 Except as otherwise specifically provided in this Lease, no abatement, refund,
diminution, or reduction of Rent or other compensation shall be claimed by or allowed to Lessee,
or any person claiming under it.
21.2 Unless directly or indirectly caused by or on behalf of Lessor, if any adjoining
building or structure encroaches on the Premises, no claim, demand, or objection of any kind
shall be made by Lessee against Lessor by reason of such encroachments and no claim for
abatement of Rent due under this Lease shall be made by reason of such encroachments or acts
of, or in connection with, removal of the encroachments. The rights, liabilities, and obligations
of the parties shall be the same as if there were no encroachments. fn any related legal
proceedings, the Premises may properly and without prejudice be described according to the
description previously used without reference to any such encroachments. Lessor agrees to fully
cooperate at Lessee's expense with Lessee in any proceedings sought by Lessee to remove such
encroachments.
Section 22. Leasehold Mortgages
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22.1 Lessee shall have the right, in addition to any other rights granted and without any
requirement to obtain Lessor's consent, to mortgage or grant a security interest in Lessee's
interest in this Lease and the Premises and the Premises Improvements and any subleases, under
one or more leasehold mortgages or pursuant to a sale - leaseback financing arrangement to one or
more "Lending Institutions" (as defined in Section 22.2), and /or under one or more purchase -
money leasehold mortgages, and to assign this Lease and any subleases as collateral security for
such leasehold mortgages or pursuant to the sale - leaseback financing arrangement, on the
condition that all rights acquired under such leasehold mortgages or pursuant to the sale -
leaseback financing arrangement shall be subject to each and all of the covenants, conditions,
and restrictions set forth in this Lease and to all rights and interests of Lessor, none of which
covenants, conditions, restrictions, rights, or interests is or shall be waived by Lessor by reason
of the right given to mortgage or grant a security interest in Lessee's interest in this Lease and
the Premises and the Premises Improvements, except as expressly provided otherwise in this
Lease.
22.2 Any mortgage or sale - leaseback financing arrangement made pursuant to this
section is referred to as a "Permitted Leasehold Mortgage," and the holder of or secured party
under a Permitted Leasehold Mortgage is referred to as a "Permitted Leasehold Mortgagee."
The Permitted Leasehold Mortgage that is prior in lien or interest among those in effect is
referred to as the "First Leasehold Mortgage," and the holder of or secured party under the
First Leasehold Mortgage is referred to as the "First Leasehold Mortgagee." For the purposes
of any rights created under this section, any so- called wraparound lender shall be considered a
First Leasehold Mortgagee. If a First Leasehold Mortgage and a Permitted Leasehold Mortgage
that is second in priority in lien or interest among those in effect are both held by the same
Permitted Leasehold Mortgagee, the two Permitted Leasehold Mortgages are collectively
referred to as the "First Leasehold Mortgage." A Permitted Leasehold Mortgage includes,
without limitation, mortgages and trust deeds as well as financing statements, security
agreements, sale - leaseback instrumentation, and other documentation that the lender may
require. The words "Lending Institution," as used in this Lease, mean any commercial,
national, or savings bank, savings and loan association, trust company, pension trust, foundation,
or insurance company, and any other entity, person, corporation or partnership making a loan on
the security of Lessee's interest in this Lease or all or any part of the Premises Improvements.
22.3 If a Permitted Leasehold Mortgagee sends to Lessor written notice specifying the
name and address of the Permitted Leasehold Mortgagee, then provided this Lease is still in
effect and as long as such Permitted Leasehold Mortgage remains unsatisfied of record or until
written notice of satisfaction is given by the holder to Lessor, the following provisions shall
apply (in respect of such Permitted Leasehold Mortgage and of any other Permitted Leasehold
Mortgages):
22.3.1 There shall be no amendment, or modification, except those explicitly
contemplated by this Lease, of this Lease without in each case the prior consent in writing of the
Permitted Leasehold Mortgagee and the Subtenant under the Sublease described in Section
5.4(iv). Nor shall any merger result from the acquisition by, or devolution on, any one entity of
Deleted:
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22.3.2 Lessor shall, upon delivering Lessee any notice, whether of default or any
other matter, simultaneously deliver a copy of such notice to the Permitted Leasehold
Mortgagee, and no such notice to Lessee shall be deemed delivered unless a copy is so delivered
to the Permitted Leasehold Mortgagee in the manner provided in this Lease for giving notices.
22.3.3 In the event of any default by Lessee under this Lease, each Permitted
Leasehold Mortgagee shall have the same concurrent period as Lessee has to remedy or cause to
be remedied or commence to remedy and complete the remedy of the default complained of for
such default, and Lessor shall accept such performance by or at the instigation of such Permitted
Leasehold Mortgagee as if the same had been done by Lessee. Each notice of monetary default
given by Lessor will state the amounts of whatever Rent or other payments are then claimed to
be in default. Nothing herein shall require any Permitted Leasehold Mortgagee to cure any
Event of Default. No such cure shall constitute an assumption of any liability by such Permitted
Leasehold Mortgagee (unless the Permitted Leasehold Mortgagee assumes this Lease or enters
into a new lease with Lessor in their respective sole discretion) unless a liability arises directly
from a negligent or wrongful act of the Permitted Leasehold Mortgagee and in such a case the
Permitted Leasehold Mortgagee shall have the obligation to defend and indemnify the Lessor
consistent with the Lessee's obligation to defend and indemnify Lessor, nor prejudice the right
of such Permitted Leasehold Mortgagee and/or Lessee to later contest or continue to contest the
validity of the claim of the Event of Default.
22.3.4 Lessor agrees that the name of the Permitted Leasehold Mortgagee may be
added to the "Loss Payable Endorsement" of any and all insurance policies required to be carried
by Lessee.
22.3.5 Except as otherwise explicitly provided in this Lease, no liability for the
payment of Rent or the performance of any of Lessee's covenants and agreements shall attach to
or be imposed on the Permitted Leasehold Mortgagee (other than any obligations expressly
assumed by the Permitted Leasehold Mortgagee), all such liability (other than any obligations
expressly assumed by the Permitted Leasehold Mortgagee) being expressly waived by Lessor.
22.3.6 Lessor, within thirty (30) days after a request in writing by Lessee or
any Permitted Leasehold Mortgagee, shall furnish a written statement, duly acknowledged, that
this Lease is in full force and effect and unamended, or if there are any amendments, such
statement will specify the amendments, and that there are no defaults by Lessee that are known
to Lessor, or if there are any known defaults, such statement shall specify the defaults Lessor
claims exist.
22.3.7 Intentionally Omitted
22.3.8 Intentionally Omitted
Lessor, on request, shall execute, acknowledge, and deliver to each Permitted Leasehold
Mortgagee an agreement prepared at the sole cost and expense of Lessee, in form satisfactory to
the Permitted Leasehold Mortgagee and Lessor, among Lessor, Lessee, and the Permitted Deleted:
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Leasehold Mortgagee, agreeing to all the provisions of this section. Lessor shall attorn to any
Permitted Leasehold Mortgagee or any other person who becomes Lessee by, through, or under a
Permitted Leasehold Mortgage, to the extent such is consistent with Section 18.1.5 and as long as
(i) all Rent and other monetary payments due under this Lease have been made; and (ii) the
Permitted Leasehold Mortgage has sufficient net worth, subject to the reasonable approval of the
Lessor, to operate the driving range and restaurant on the Premises.
22.3.9 Lessor shall at no time be required to subordinate its interest in the
Premises to the lien of any leasehold mortgage, including any Permitted Leasehold Mortgage,
nor to mortgage its fee simple interest in the Premises as collateral or additional security for any
leasehold mortgage, including any Permitted Leasehold Mortgage.
22.3.10 If following completion of the Golf Course Improvements and the
Premises Improvements Lessee is declared bankrupt or insolvent and this Lease is thereafter
lawfully canceled or rejected Lessor shall to the extent permitted by law promptly execute a new
lease with 30 West Pershing (or TopGolf, if 30 West Pershing is then bankrupt or insolvent)
under the identical terms and conditions as this Lease provided (i) all Rent and other monetary
payments due under this Lease have been made; (ii) all defaults that are capable of being cured
by a person or entity other than the Lessee or CenterCal Guarantor have been cured, and (ii) the
replacement lessee or a guarantor of its obligations hereunder has a net worth of at least Deleted:2
$10,000,000.00 and $10,000,000 respectively.
22.3.11 If Lessor declares bankruptcy and Lessor's bankruptcy trustee rejects
this Lease when there is a Permitted Leasehold Mortgagee, Lessee's right to elect to terminate
this Lease or to retain its rights pursuant to 11 USC § 365(h)(1) shall be exercised by the
Permitted Leasehold Mortgagee.
22.3.12 No filing of bankruptcy by Lessee, a sublessee, assignee, or
Permitted Leasehold Mortgagee or any other party, other than Lessor, under, subject to or
otherwise having rights or obligations under or through this Lease, shall relieve the CenterCal
Guarantor or the 30 West Guarantor of their respective obligations.
Section 23. Lessor's Right to Encumber
Lessor, during the Lease Term, may encumber or mortgage its fee simple interest in the
Premises so long as Lessee has reasonably consented, which consent shall be promptly granted if
each of the following conditions have been satisfied: (i) Lessee has received thirty (30) days
prior written notice of any such encumbrance, (ii) the holder of any such encumbrance executes
with Lessee a mutually agreeable nondisturbance and attornment agreement, and (iii) at no time
shall the aggregate amount of all such encumbrances of Lessor's fee simple interest in the
Premises exceed a seventy percent (70 %) loan to value ratio (using the land value only without
Premises Improvements). Except as explicitly provided above, Lessor covenants and agrees that
Lessor shall not permit any liens to attach to the Premises that are created by, through or under
Lessor. If any such liens do attach to the Premises, Lessor shall immediately pay off such liens;
provided that if any such liens are not paid off by Lessor within thirty (30) days of the date that Deleted:
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Lessor receives written notice from Lessee that such liens are recorded against the Premises and
a demand that they be removed, Lessee may, at its option, pay off such liens and deduct the
payment from Fixed Rent.
Section 24. Nonmerger
There shall be no merger of this Lease, or of the leasehold estate created by this Lease,
with the fee estate in the Premises by reason of the fact that this Lease, the leasehold estate
created by this Lease, or any interest in this Lease or in any such leasehold estate, may be held,
directly or indirectly, by or for the account of any person who shall own the fee estate in the
Premises or any interest in such fee estate, and no such merger shall occur, unless and until all
persons at the time having an interest in the fee estate in the Premises and all persons having an
interest in this Lease, or in the leasehold estate created by this Lease, shall join in a written
instrument effecting such merger and shall duly record the same.
Section 25. Quiet Enjoyment
Lessee, on paying the Rent and observing and keeping all covenants, agreements, and
conditions of this Lease on its part to be kept, shall quietly have and enjoy the Premises during
the Lease Term without hindrance or molestation by anyone claiming by, through, or under
Lessor as such, subject, however, to the exceptions, reservations, and conditions of this Lease.
Section 26. Surrender
26.1 Except as otherwise provided, Lessee, on the last day of the Lease Term or upon
any earlier termination, shall surrender and deliver up the Premises and any Premises
Improvements to the possession and use of Lessor, free and clear of all liens and encumbrances
other than those, if any, existing on the Premises Turnover Date or created or consented to in
writing by Lessor that Lessor expressly agreed would remain following termination of this
Lease, without any payment or allowance whatsoever by Lessor on account of any Premises
Improvements on the Premises, and in a broom clean as -is condition and with the Premises in its
then condition being capable of being operated as a driving range generally consistent with the
operation of the driving range in existence as of the Premises Turnover Date (a "Driving
Range "). Subject to the preceding and Lessee's other obligations under this Lease:
26.2 When furnished by or at the expense of Lessee, fixtures, and equipment may be
removed by Lessee at or before this Lease terminates. For purposes hereof, Lessee's fixtures and
equipment include the outfield target equipment, golf balls, any proprietary technology in the
golf ball dispensers and touch screens, and other proprietary or related technology equipment.
Notwithstanding the foregoing, Lessee shall ensure that the Premises are capable of being
operated as a Driving Range on the last day of the Lease Term or upon any earlier termination
and Rent shall be due and payable until Driving Range is operational.
26.3 Any personal property of Lessee that shall remain on the Premises after the
termination of this Lease and the removal of Lessee from the Premises may, at the option of Deleted:
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Lessor, be deemed to have been abandoned by Lessee, and may either be retained by Lessor as
its property or be disposed of, without accountability, in such manner as Lessor may see fit, or if
Lessor gives written notice to Lessee to such effect, such personal property shall be removed by
Lessee at Lessee's sole cost and expense. If this Lease terminates early for any reason other than
the default of Lessee, then, anything to the contrary notwithstanding, Lessee shall have ninety
(90) days thereafter to remove its personal property and Lessee shall be responsible for paying
all Rent and other costs required hereunder until the Premises are delivered to the Lessor.
26.4 Lessor shall not be responsible for any loss or damage occurring to any property
owned by Lessee unless such loss or damage is caused by Lessor's negligence or willful
misconduct, or that of its agents, employees or contractors.
26.5 If, with the written consent of Lessor, Lessee fails to vacate the Premises after the
expiration of the Lease Term, or any earlier termination hereof, Lessee shall become a tenant
from month to month upon the terms of this Lease; provided, however, that Rent shall be
adjusted beginning on the first day after the expiration or earlier termination to be one hundred
ten percent (110 %) of the Rent then in effect under this Lease.
26.6 Notwithstanding anything contained herein to the contrary, Lessee shall be liable
to Lessor for any and all actual and direct damages caused by its failure to vacate the Premises
after the expiration or any earlier termination of this Lease hereof, but not including incidental
and consequential damages to Lessor. Lessee shall pay such damages within thirty (30) days of
demand. Lessee shall not be subject to the preceding liability to the extent that Lessor has
elected to allow Lessee to continue as a month -to -month tenant beyond the expiration or earlier
termination of this Lease.
26.7 The provisions of this Section 26 shall survive any termination of this Lease.
Section 27. Invalidity of Particular Provisions
If any term or provision of this Lease or the application of the Lease to any person or
circumstances is, to any extent, invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than those as to which it
is held invalid or unenforceable, shall not be affected, and each term and provision of this Lease
shall be valid and be enforced to the fullest extent permitted by law.
Section 28. No Representations
Lessee acknowledges that it has examined the Premises and that no representations as to
the condition of the Premises or as to any other matters have been made by Lessor or any agent
or person acting for Lessor except as expressly provided in this Lease.
Section 29. Estoppel Certificate
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0
Either party, within twenty (20) days after a request from time to time made by the other
party and without charge, shall give a certification in writing to any person, firm, or corporation
reasonably specified by the requesting party stating: (i) that this Lease is then in full force and
effect and unmodified, or if modified, stating the modifications; (ii) that Lessee is not in default
in the payment of Rent to Lessor, or if in default, stating such default; (iii) that as far as the
maker of the certificate knows, neither party is in default in the performance or observance of
any other covenant or condition to be performed or observed under this Lease, or if either party
is in default, stating such default; (iv) that as far as the maker (if Lessor) of the certificate knows,
no event has occurred that authorized, or with the lapse of time will authorize, Lessee to
terminate this Lease, or if such event has occurred, stating such event; (v) that as far as the maker
of the certificate knows, neither party has any offsets, counterclaims, or defenses, or, if so,
stating them; (vi) the dates to which Rent have been paid; and (vii) any other matters that may be
reasonably requested by the requesting party. Any such statement may be conclusively relied
upon by any prospective purchaser or encumbrancer of the Premises or encumbrancer of the
interest of Lessee hereunder. A party's failure to deliver such statement within such time shall
be conclusive upon such party: (a) that this Lease is in full force and effect without modification,
except as may be represented by the party requesting the certificate, and (b) that there are no
uncured defaults in such requesting party's performance.
Section 30. Force Majeure
If the performance by either of the parties of their respective obligations under this Lease
(excluding Rent or other monetary obligations) is delayed, or prevented in whole or in part by
any acts of God, fire or other casualty, floods, storms or other natural disasters, explosions,
accidents, epidemics, war, civil disorders, labor strikes, shortage or failure of supply of materials,
labor, fuel, power, equipment, supplies or transportation, third -party legal challenges, actions
taken by governmental agencies that could not have been reasonably anticipated by and timely
resolved by a party, or by any other cause not reasonably within the party's control, whether or
not specifically mentioned ( "Force Majeure"), the party's obligation to perform shall be delayed
for a time period equivalent to the Force Majeure (excluding any monetary obligation).
Section 31. Notices
31.1 Any notice required or permitted by the terms of this Lease shall be in writing and
shall be deemed given: (i) when delivered personally to an officer or other authorized
representative of the party to be notified, or (ii) after deposit in the United States mail as certified
mail, postage prepaid, return - receipt requested, or sent by reputable overnight courier, and
addressed as follows:
If to Lessor: The City of El Segundo
350 Main Street
El Segundo, CA 90245 -4635
Attention: City Clerk
With a copy (which shall
37
Error! Unknown document orooerty name-
Deleted:
l DAL:0103393/00007:2239739v2
59
not constitute notice) to:
The City of El Segundo
350 Main Street
El Segundo, CA 90245 4635
Attention. City Manager
If to Lessee
And /or Guarantors: ES CenterCal, LLC,
1600 East Franklin Street
El Segundo, CA 90245
Attention.: Jean Paul Wardy
CenterCal, LLC,
1600 East Franklin Street
El Segundo, CA 90245
Attention.: Fred. W. Bruning
30 West Pershing, LLC
909 Walnut, Suite 200
Kansas City, Missouri 64106
Phone: (816) 472 -1700
Fax: (816) 472 -5794
Attn: Asset Management
30 West Pershing, LLC
909 Walnut, Suite 200
Kansas City, Missouri 64106
Phone: (816) 472 -1700
Fax.: (816) 472 -5794
Attn: General Counsel
TopGolf USA Inc.
1717 McKinney Avenue
8th Floor
Dallas, Texas 75202
Fax: (866) 577-4612
Attn: Randall P. Starr, 'Vice President Development
38
Error! Unknown document property name.._
Deleted:
DAL:01 U3393rIX19W: M 97394
•
With a copy (which shall
not constitute notice) to:
Griffin Fletcher & Herndon, LLP
6857 Amber Lane
Carlsbad, CA 92009
Attention.: Edward Krasnove, Esq.
White Goss Bowers March Schulte & Weisenfels,
a Professional Corporation
4510 Belleview, Suite 300
Kansas City, Missouri 64111
Attn: Fred W. Crouch, Esq,
Locke Lord LLP
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
Fax: (214) 756 -8582
Attn: Donald A. Hammett, Jr.
orsuch other addresses as may be designated by either party by written notice to the other.
Notwithstanding anything in this section to the contrary, any notice sent or mailed to the last
designated address of any person or party to which a notice may be or is required to be delivered
pursuant to this Lease or this section, shall not be deemed ineffective if actual delivery cannot be
made due to a change of address of the person or party to which the notice is directed or if such
notice is rejected by such party.
Section 32. Venue
32.1 The venue for any claim, controversy, or dispute between the parties arising out
of or relating to this Lease, or to the interpretation or breach thereof, shall be the Los Angeles
Superior Court. The parties may, but are not required to, engage in mediation prior to the
initiation of any litigation.
Section 33. Entire Agreement
This Lease contains the entire agreement between the parties and, except as otherwise
provided, can be changed, modified, amended, or terminated only by an instrument in writing
executed by the parties. It is mutually acknowledged and agreed by Lessee and Lessor that there
are no verbal agreements, representations, warranties, or other understandings affecting this
Lease. This Agreement was negotiated by and jointly drafted by the parties and the language
contained herein shall not be construed against either party hereto based upon any presumption
or evidence that particular language was drafted by one of the parties hereto. All Exhibits
Deleted:
DAL:0103393/00007:2239739v2
39
Error! Unknown document property name
61
referenced in the Lease and attached hereto are incorporated into and are considered a part of this
Lease.
Section 34. Applicable Law
This Lease shall be governed by, and construed in accordance with, the laws of the state
of California.
Section 35. License Agreement
Lessor represents and warrants to Tenant that as of the date of this Lease, there are no
uncured defaults under the License Agreement and, to Lessor's knowledge, no events have
occurred, which with the giving of notice or the passage of time could become a default under
the License Agreement
Lessor and Lessee agree not to take any action that would result in the termination of the
License Agreement or to modify the License Agreement without both parties written consent.
Lessor and Lessee agree to perform all of their respective obligations under the License
Agreement in a timely manner so as not to cause the termination of the License Agreement. If
Lessor or Lessee receives a notice of default from Licensor, then the party receiving the notice
shall promptly give notice of the default to other party, which notice shall include a copy of any
such notice of default that is so given or received.
In the event of a default by Lessor or Lessee under the License Agreement, both parties shall
have the right, but not the obligation, to cure the default of the other party by giving notice
thereof to the other party, and any reasonable costs incurred by non - defaulting party in curing
such default shall be borne by the defaulting party.
Section 36. Late Charge
Lessee acknowledges that late payment by Lessee to Lessor of any Rent or other
payments due hereunder will cause Lessor to incur costs not contemplated by this Lease, the
exact amount of which will be extremely difficult to ascertain. Such costs may include, without
limitation, processing and accounting charges and late charges which may be imposed on Lessor.
Accordingly, if any Rent payment is not received by Lessor within ten (10) days after receipt by
Lessee of notice from Lessor that such Fixed Rent is past due, Lessee shall pay to Lessor a late
charge equal to four percent (4 %) of the unpaid Fixed Rent (the "Late Charge "). The parties
hereby agree that such late charge represents a fair and reasonable estimate of the costs incurred
by Lessor by reason of the late payment by Lessee. Acceptance of any Late Charge by Lessor
shall, in no event, constitute a waiver of Lessee's default with respect to the overdue amount in
question, nor prevent Lessor from exercising any of the other rights and remedies granted
hereunder.
Section 37. Nonwaiver
40
1 Error! Unknown document property namet
Deleted:
DAL:0 1 03 3 93 /00007:2239739 v2
62
No provision of this Lease shall be deemed to have been waived by Lessor or Lessee,
unless such waiver is in writing signed by Lessor or Lessee, as applicable. Waiver of a breach of
any term or condition of this Lease shall not be deemed a waiver of any subsequent breach.
Acceptance of any Rent or other payments shall not be deemed a waiver of such breach.
Section 38. Brokerage
Lessor and Lessee represent to each other that they have not employed any brokers in
negotiating and consummating the transaction set forth in this Lease, but have negotiated directly
with each other. Lessor represents and warrants to Lessee, and Lessee represents and warrants to
Lessor, that no other broker or finder has been engaged by it, respectively, in connection with
this Lease. In the event of any claims for additional brokers' or finders' fees or commissions in
connection with the negotiation, execution, or consummation of this Lease, then Lessee shall
indemnify, hold harmless, and defend Lessor from and against such claims if they shall be based
on any statement or representation or agreement by Lessee, and Lessor shall indemnify, hold
harmless, and defend Lessee if such claims shall be based on any statement, representation, or
agreement made by Lessor.
Section 39. Miscellaneous Provisions
39.1 Lessee shall have the right in its sole and absolute discretion to obtain, at its cost,
a lot line adjustment approval, as part of the Required Project Entitlements process which
comprise the Conditions Precedent, to reconfigure the lots currently comprising the Premises to a
reconfiguration reasonably agreed upon with Lessor. As part of or separate from this process,
Lessor and Lessee shall reasonably cooperate with each other in their efforts to subdivide the
Premises.
39.2 Except as expressly set forth in this Lease, Lessee shall have the right to choose
the name of the project in its sole and absolute discretion.
Section 40. Covenants to Bind and Benefit Parties
Subject to the limitations set forth in Section 18, the covenants and agreements contained
in this Lease shall bind and inure to the benefit of Lessor, its successors and assigns, and Lessee,
its successors and assigns.
Section 41. Captions and Table of Contents
41.1 The captions of this Lease are for convenience and reference only, and in no way
define, limit, or describe the scope or intent of this Lease or in any way affect this Lease.
41.2 The table of contents preceding this Lease but under the same cover is for the
purpose of convenience and reference only, and is not to be deemed or construed in any way as
part of this Lease, nor as supplemental or amendatory.
Section 42. Hazardous Materials
41
Error! Unknown document nrooerty name_
Deleted:
DAL:0103393/00007:2239739v2
63
The term "Hazardous Substances" shall mean and refer to the following: petroleum
products and fractions thereof, asbestos, asbestos containing materials, urea formaldehyde,
polychlorinated biphenyls, radioactive materials and all other dangerous, toxic or hazardous
pollutants, contaminants, chemicals, materials, substances and wastes listed or identified in, or
regulated by, any Environmental Law. The term "Environmental Laws" shall mean and refer
to the following: all federal, state, county, municipal, local and other statutes, laws, ordinances
and regulations which relate to or deal with human health or the environment, all as may be
amended from time to time. The term "Release" shall mean and refer to any spilling, leaking,
pumping, pouring, emptying, discharging, injecting, escaping, leaching, dumping or disposing
into the environment, including the abandonment or discarding of barrels, drums, containers,
tanks, or other receptacles containing or previously containing any Hazardous Substance.
Section 43. [Intentionally Omitted]
Section 44. Counterparts
This Lease may be 'executed in any number of counterparts and each such counterpart
hereof shall be deemed to be an original instrument, but all such counterparts together shall
constitute but one Lease.
Section 45. Consent and Approval Rights
Except as otherwise expressly set forth in this Lease or provided by law, references in
this Lease to "consent," "approval," "acceptable," and "satisfactory" shall not be interpreted as
justifying arbitrary rejection but shall imply a good faith, reasonable application of judgment
taking into consideration customary leasing practice and commercial custom.
Section 46. Prevailing Wages
Lessee shall pay prevailing wages as defined by the California Labor Code and
applicable regulations for all the Golf Course Improvements and the Premises Improvements and
other work performed on the Property. Lessee shall provide to Lessor all records required by
state law, including but not limited to the California Labor Code and applicable regulations, to
prove that prevailing wages are being paid, including without limitation maintaining and
providing weekly certified payroll records to the Lessor evidencing that Lessee paid prevailing
wage for all of the Premises Improvements and Golf Course Improvements and other work
performed on the Property.
Section 47. Golf Course
Lessor shall maintain the appearance of the Golf Course in accordance with the same
standards that it is maintained as of the execution of this Lease. In the event that the use of the
Golf Course changes the Lessor shall maintain the appearance of the property that comprises the
Golf course in a clean and aesthetically reasonable manner. The Lessee's sole remedy for a 'Deleted:
DAL:0103393/00007:2239739v2
42
M
breach of this Section shall be specific performance. In addition, in the event that all or any
portion of the Golf Course is used for business of a sexually oriented nature, such as a strip club
or adult novelty store, then in such event Fixed Rent shall be reduced by fifty percent (50 %) for
as long as such use continues on the Golf Course.
THE BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK
43
Error! Unknown doomentprooerty nemek,
Deleted:.
DA!.:01 0331)N 07:223473M
65
IN WITNESS WHEREOF, Lessee and Lessor have caused this Lease to be executed by their
duly authorized representatives.
Lessor: THE CITY OF EL SEGUNDO, a Chartered City
and Municipal corporation
By:
Name:
Lessee: ES CENTERCAL, LLC,
a Delaware limited liability company
By: CENTERCAL, LLC,
a Delaware limited liability company
By: CENTERCAL ASSOCIATES, LLC,
a Delaware limited liability company
By
Print Name
Print Title: Its Manager
Exhibit "A" — Legal Description
Exhibit "A -1" — The Premises
Exhibit "A -2 "- The Golf Course
Exhibit "B" — Site Plan
Exhibit "B -1"— Preliminary Site Plan
Exhibit "C" — License Agreement
Exhibit "D" — Golf Course and Premises Improvements
Exhibit "E" — Permitted Exceptions
44
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DAL'0 VD339310W7:2239739y2
Exhibit "F" — Form of Memorandum of Lease
Exhibit "9'— Prototype Facility
Exhibit "H" — Form of Guaranties
45
Error! Unknown document orouerty name_
Deleted:
DAL:0103393/00007:2239739v2
M*
EXHIBIT "A"
LEGAL DESCRIPTION
•:
Exhibit "A"
Legal Description
PARCEL 1: (4138- 014 -913)
PARCEL A:
PARCEL 1, IN THE CITY OF EL SEGUNDO, IN THE COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS SHOWN ON MAP NO. 17749, FILED IN BOOK 207 PAGES 56 TO 60 INCISIVE
OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THAT PORTION OF SAID LAND DESCRIBED IN GRANT DEED RECORDED MARCH
12, 1999 AS INSTRUMENT NO. 1999 - 4118875 OF OFFICIAL RECORDS.
ALSO EXCEPTING AND RESERVING TO CHEVRON U.S.A. INC., A PENNSYLVANIA
CORPORATION, ITS SUCCESSORS AND ASSIGNS, ALL OIL, GAS AND OTHER
HYDROCARBONS, NON - HYDROCARBON GASSES OR GASEOUS SUBSTANCES, ALL OTHER
MINERALS OF WHATSOEVER NATURE, WITHOUT REGARD TO SIMILARITY TO THE
ABOVE- MENTIONED SUBSTANCES, AND ALL SUBSTANCES THAT MAY BE PRODUCED
THEREWITH FROM THE PROPERTY, BY DEED RECORDED MAY 24, 1988 AS INSTRUMENT
NO. 88- 826097, OF OFFICIAL RECORDS.
PARCEL B:
A PARCEL OF LAND BEING A PORTION OF PARCELS 7 AND 8 OF PARCEL MAP NO. 17750 IN
THE CITY OF EL SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 207, PAGES 64 TO 66 INCLUSIVE, OF PARCEL MAP RECORDS
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AND DESCRIBED AS
FOLLOWS:
BEGINNING AT THE MOST NORTH WEST CORNER OF SAID LOT 7; THENCE SOUTH 091 46'
55" EAST ALONG THE WESTERLY LINE OF SAID LOT 7 A DISTANCE OF 134.51 FEET;
THENCE, NORTH 63° 57'01" EAST A DISTANCE OF 202.06 FEET; THENCE, SOUTH 26° 06' 20"
EAST A DISTANCE OF 1.00 FEET; THENCE, NORTH 63° 53'40" EAST A DISTANCE OF 607.71
FEET TO A POINT IN THE NORTH LINE OF SAID LOT 8, SAID POINT BEARS SOUTH 73° 28'
25" EAST A DISTANCE OF 27.04 FEET FROM THE MOST NORTH EAST CORNER OF SAID LOT
8; THENCE, SOUTH 73° 28'25" WEST ALONG THE NORTHERLY LINE OF SAID LOTS 7 AND 8
A DISTANCE OF 782.89 FEET BACK TO THE POINT OF BEGINNING.
EXCEPT ALL OIL, GAS, ASPHALTUM AND OTHER HYDROCARBON SUBSTANCES, AND ALL
OTHER MINERALS WHETHER SIMILAR TO THOSE HEREINABOVE SPECIFIED OR NOT,
DEPOSITED OR CONTAINED IN, OR THAT MAY BE PRODUCED FROM THOSE
FORMATIONS, ZONES OR HORIZONS LYING BELOW FIVE HUNDRED (500') FEET FROM
THE SURFACE OF THE ABOVE DESCRIBED REAL PROPERTY, TOGETHER WITH THE SOLE
AND EXCLUSIVE RIGHTS AND PRIVILEGES TO INJECT INTO ANY FORMATION, ZONE OR
HORIZON LYING BELOW FIVE HUNDRED FEET (500') FROM THE SURFACE OF SAID REAL
241
••
PROPERTY, ETHER WET OR DRY GAS, REGARDLESS OF WHERE THE SAME IS PRODUCED,
TO STORE THE SAME THEREIN, AND TO REMOVE OR WITHDRAW THE SAME THEREFROM
AT ANY TIME, OR FROM TIME TO TIME, PROVIDED THAT SAID GRANTOR, ITS
SUCCESSORS AND ASSIGNS, SHALL NOT HAVE ANY RIGHT OF ENTRY, AND SHALL NOT
ENTER OR UPON ANY PART OF THE SURFACE OF SAID REAL PROPERTY OR IN, UPON OR
THROUGH ANY PORTION OF THE SUBSURFACE OF SAID REAL PROPERTY WHICH LIES
WITHIN FIVE HUNDRED (500') FEET VERTICALLY FROM THE SURFACE OF SAID REAL
PROPERTY; BUT SAID GRANTOR, ITS SUCCESSOR AND ASSIGNS SHALL HAVE THE RIGHT,
IN CONNECTION WITH THE FOREGOING RESERVATION AND EXCEPTING, TO PRODUCE,
EXTRACT AND REMOVE SUCH OIL, GAS, ASPHALTUM AND OTHER HYDROCARBON
SUBSTANCES, AND OTHER MINERALS DEPOSITED OR CONTAINED IN OR THAT MAY BE
PRODUCED FROM FORMATIONS, ZONES OR HORIZONS LYING BELOW FIVE HUNDRED
(500') FEET FROM THE SURFACE OF SAID REAL PROPERTY, BY MEANS OF WHIP- STOCK,
SLANT OR DIRECTIONAL DRILLING OR ANY OTHER METHOD OF PRODUCTION OR
EXTRACTION CONDUCTED FROM, ON OR UPON ANY OTHER REAL PROPERTY THAN
THAT HEREINABOVE DESCRIBED, AS RESERVED IN DEED RECORDED DECEMBER 1, 1947
AS INSTRUMENT NO. 534, OF OFFICIAL RECORDS.
ALSO EXCEPT ALL OIL, GAS AND OTHER HYDROCARBONS, NON - HYDROCARBON GASSES
OR GASEOUS SUBSTANCES, ALL OTHER MINERALS OR WHATSOEVER NATURE, WITHOUT
REGARD TO SIMILARITY TO THE ABOVE MENTIONED SUBSTANCES, AND ALL
SUBSTANCES THAT MAYBE PRODUCED THEREWITH FROM THE PROPERTY, AS
RESERVED IN DEED RECORDED MAY 24, 1988 AS INSTRUMENT NO. 88- 825876, OF
OFFICIAL RECORDS.
ALSO EXCEPT ALL GEOTHERMAL RESOURCES, EMBRACING INDIGENOUS STEAM, HOT
WATER AND HOT SPRINGS, STEAM AND OTHER GASSES, HOT WATER AND HOT BRINES
RESULTING FROM WATER, GAS OR OTHER FLUIDS ARTIFICIALLY INTRODUCED INTO
SUBSTANCES FORMATIONS HEAT OR OTHER ASSOCIATED ENERGY FOUND BENEATH
THE SURFACE OF THE EARTH, AND BYPRODUCTS OF ANY OF THE FOREGOING SUCH AS
MINERALS (EXCLUSIVE OF OIL OR HYDROCARBON GAS THAT CAN BE SEPARATELY
PRODUCED) WHICH ARE FOUND IN SOLUTION OR ASSOCIATION WITH OR DERIVED
FROM ANY OF THE FOREGOING, AS RESERVED IN DEED RECORDED MAY 24, 1988 AS
INSTRUMENT NO. 88- 825876, OF OFFICIAL RECORDS.
ALSO EXCEPT THE SOLE AND EXCLUSIVE RIGHT FROM TIME TO TIME TO BORE, DRILL
AND MAINTAIN WELLS AND OTHER WORKS INTO OR THROUGH SAID PROPERTY AND
THE ADJOINING STREETS, ROADS AND HIGHWAYS BELOW A DEPTH OF 500 FEET FROM
THE SURFACE THEREOF FOR THE PURPOSE OF EXPLORING FOR AND PRODUCING
ENERGY RESOURCES, TO PRODUCE, INJECT, STORE AND REMOVE FROM AND THROUGH
SUCH WELLS OR WORKS, OIL, GAS, WATER AND OTHER SUBSTANCES OF WHATEVER
NATURE, INCLUDING THE RIGHT TO PERFORM BELOW SAID DEPTH ANY AND ALL
OPERATIONS DEEMED NECESSARY OR CONVENIENT FOR THE EXERCISE OF SUCH
RIGHTS.
THE RIGHTS HEREINABOVE EXCEPTED AND RESERVED TO GRANTOR DO NOT INCLUDE
AND DO NOT EXCEPT OR RESERVE ANY RIGHT TO USE THE SURFACE OF THE PROPERTY
OF THE FIRST 500 FEET BELOW THE SURFACE OF THE PROPERTY OR TO CONDUCT ANY
OPERATIONS THEREON OR THEREIN UNLESS HEREINAFTER SPECIFICALLY EXCEPTED
AND RESERVED, ALL RIGHTS AND INTERESTS IN THE SURFACE OF THE PROPERTY ARE
242
70
HEREBY CONVEYED TO GRANTEE AS PROVIDED IN DEED RECORDED MAY 24, 1988 AS
INSTRUMENT NO. 88- 825876, OF OFFICIAL RECORDS.
PARCEL 2: (4138 -014 -910)
BEING A PORTION OF PARCEL NO. 6 OF PARCEL MAP NO. 17750, IN THE CITY OF EL
SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED
IN BOOK 207, PAGES 64 THRU 66, INCLUSIVE, OF PARCEL MAPS, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL NO. 6; THENCE NORTH 89" 56'
00" EAST, ALONG THE NORTHERLY LINE OF SAID PARCEL NO. 6, A DISTANCE OF 45.20
FEET; THENCE SOUTH 00° 04' 00" EAST, ALONG A LINE THAT IS 45.00 FEET EASTERLY,
MEASURED AT RIGHT ANGLES, AND PARALLEL WITH, THE TANGENT PORTION OF THE
WESTERLY LINE OF SAID PARCEL NO. 6, A DISTANCE OF 530.00 FEET; THENCE WORTH 89°
56'33" EAST A DISTANCE OF 135.00 FEET; THENCE SOUTH 00° 03'27" EAST A DISTANCE OF
60.00 FEET, TO THE SOUTHERLY LINE OF SAID PARCEL NO. 6; THENCE SOUTH 89° 56' 33"
WEST, ALONG SAID SOUTHERLY LINE, A DISTANCE OF 140.00 FEET TO THE BEGINNING
OF A 40.00 FOOT TANGENT CURVE, CONCAVE TO THE NORTHEAST; THENCE
NORTHWESTERLY, ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 890 59'27" AN
ARC DISTANCE OF 62.83 FEET; THENCE NORTH 001 04' 00" WEST, ALONG THE WESTERLY
LINE OF SAID PARCEL NO. 6, A DISTANCE OF 531.36 FEET, TO THE BEGINNING OF A 860.00
FOOT TANGENT CURVE, CONCAVE TO THE WEST; THENCE NORTHERLY, ALONG SAID
CURVE, THROUGH A CENTRAL ANGLE OF 01- 14'3 1" AN ARC DISTANCE OF 18.64 FEET TO
THE POINT OF BEGINNING.
END OF LEGAL DESCRIPTION
243
71
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A� B M
THE PREMISES
S EM S TO BE PREPARED WrIRIN ONt AUN�5, D' TWENIY bAY9,OF
COMMENCEMENT DATtANn ATTACHED HERETO.
3.18.14
72
EXBHIT A -2
THE GOLF COURSE
THIS EXHIBIT TO BE PREPARED WITHIN ONE HUNDRED TWENTY DAYS OF
THE COMMENCEMENT DATE AND ATTACHED HERETO.
73
EXHIBIT "B"
SITE PLAN
3.18.14
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EXHIBIT "C"
SCE LICENSE AGREEMENT
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EXHIBIT C LICENSE AGREEMENT
WPX \RVW \AGR50945
21 21
LICENSE AGREEMENT 0-1
RP File NO.W05- 91-005MM
THIS AGREEMENT, made as of this 24th q) day
Of JUNE , 1991, between SOUTHERN CALIFORNIA EDISON
COMPANY, a corporation organized under the laws of the State
of California, hereinafter called "Licensor ", and the CITY
OF EL SEGUNDO, a Municipal Corporation, hereinafter called
"Licensee ";
WITNESSETH: That Licensor, for and in consideration of the
faithful performance by Licensee of the terms, covenants and
agreements hereinafter set forth to be kept and performed by
Licensee, does hereby give to Licensee a license to use that
certain real property hereinafter described and referred to
as "licensed property," solely for the purpose hereinafter
specified, upon and subject to the terms, reservations,
covenants and conditions hereinafter set forth.
The licensed property hereinabove referred to is
located in the City of E1 Segundo, County of Los Angeles,
State of California, and being the parcel delineated on the
print attached hereto and made a part hereof, marked
Exhibit "A ".
-I-
248
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WPX \RVW \AGR50945
2121
llrauNnn
This license shall be subject to those covenants,
conditions, restrictions, reservations, exceptions, and
rights and easements, all as set forth on Exhibit B, which
is attached hereto and hereby made a part hereof and shall
also be subject to, but not necessarily limited to, the
following rights of way and easements which licensor hereby
specifically reserves to
itself
Easements and rights of way to construct,
operate, use, maintain, inspect, repair,
renew, replace, reconstruct, enlarge, alter,
add to, improve, relocate and remove, at any
time and from time to time, electric lines,
consisting of one or more lines of metal
towers, poles and other structures, wires,
cables, including ground wires and communi-
cation circuits, both overhead and under-
ground, with necessary and convenient
foundations, conduits, pullboxes, guy wires
and anchors, insulators and crossarms placed
on said structures, and other fixtures,
appliances and appurtenances connected
therewith, necessary or convenient for the
construction, operation, regulation, control,
-2-
249
80
WPX \RVW \AGR5O945
�,u►v i tt� m�
2121
grounding and maintenance of electric lines "MUNDI
and communication circuits, for the purpose of
transmitting, distributing, regulating and
controlling electric energy to be used for
light, heat, power, communication, and other
purposes, together with the easement and right
of way for roads, ingress, egress and other
convenient purposes needed or desired at any
time and from time to time by Grantee, and the
right to clear and to keep clear said ease-
ments and rights of way and the real property
affected thereby, free from explosives,
buildings, structures, equipment, combustible
materials and any and all other obstructions
of any kind, including, but not in any way in
limitation of the generality of the foregoing,
swimming pools, lighting standards, protective
netting, and appurtenances, fences (other than
farm, grazing or pasture fences), and the
parking of automobiles, trucks or other
mechanical equipment, for protection from fire
and other hazards and from interference with
ingress and egress and with the unobstructed
use of said easements and rights of way and
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every part thereof, and for any and all
purposes herein mentioned.
The foregoing license is also made subject to the
following terms and conditions, all of which Licensee hereby
agrees to comply with and perform.
(1) se: Licensee agrees to use the licensed
property only for tees, greens fairways, and sandtraps for a
Municipal Golf Course.
(2) Term: Unless otherwise terminated as provided
herein, this license shall be for a term of Thirty (30)
years commencing on the date T -Y Nursery vacates the license
and allows Licensee to take possession, and ending thirty
years from that date.
(3) Consideration: Licensee agrees to pay to
Licensor the sum of One Thousand Five Hundred Dollars
($1,500) per acre upon the execution and delivery of this
license, and thereafter the same amount on the anniversary
date of its taking possession in each year for the first
three years of this license.
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P'' "raIINDr)
(4) Escalation: In the fourth year of this
license, licensee shall pay the sum of Three Thousand
Dollars ($3,000) per acre (or a total annual payment of
$10,800).
In the fifth year of this license and for four
years thereafter licensee shall pay Six Thousand Dollars
($6,000) per acre per year (or a total annual payment of
$21,600).
In the tenth year of this license and every five
years thereafter the annual rent shall be subject to upward
adjustment which reflects any cumulative percentage increase
for the five years preceding the adjustment in the consumers
price index for Los Angeles /Long Beach, all urban consumers,
which is published in the monthly labor review of the U.S.
Department of Labor Bureau of Labor Statistics. However, in
no case shall the rent be reduced by said adjustment.
(5) Notices: All notices which are required to be
given by either party hereto to the other, shall be deemed
to have been duly given when made in writing and deposited
in the United States mail, first class, postage prepaid,
addressed as follows:
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To Licensor: Southern California Edison Company
Regional Manager
Land Services Division
Real Properties and Administrative Services
P. 0. Box 410
Long Beach, California 90801
To Licensee: City Manager
City of E1 Segundo
350 Main Street
El Segundo, CA 90245
Each Party hereto agrees to promptly notify the other of any
address change.
(6) Liability Insurance: Licensee agrees to
insure its liabilities and /or require its construction
contractor or franchisee to insure such liabilities, which
may arise from its activities hereunder, by the purchase of
a liability insurance policy with a Combined Single Limit of
not less than One Million Dollars ($1,000,000.00) and shall
include Licensor as an additional insured. Licensee agrees
to provide evidence of such insurance upon request.
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r - rRllMn+)
(7) Height Limitations: Licensee agrees that at
all times during the term of this license and equipment used
by it or its agents, employees or contractors on and
adjacent to the licensed property shall be used and operated
so as to at all times maintain a minimum clearance of
seventeen (17) feet from all overhead electrical conductors
located on said licensed property.
Licensee also agrees that all trees or plants
located on the licensed property shall be maintained by
Licensee, and Licensee shall trim or, if requested by
Licensor, shall remove any tree or other planting which
exceeds fifteen (15) feet in height.
(8) Maintenance By Licensor: In addition to the
rights of way and easements heretofore reserved, Licensor
specifically reserves for itself, its successors and
assigns, the right to periodically wash Licensor's elec-
trical insulators. Licensee shall notify Licensor of any
special event it has planned which would be interfered with
by such washing operations and Licensor shall use its best
efforts to avoid interfering with such event.
(9) Licensee's Improvements: Licensee must submit
complete improvement plans for the licensed property,
including grading plans, identifying all existing and
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21 21
proposed improvements. Licensee shall obtain Licensor's
written approval of said plans, including any subsequent
modification thereof, prior to making any use of the
property. said approval shall not be unreasonably withheld
by Licensor. Licensor shall not be called upon or required,
at any time, to make any improvements, alterations, changes
or additions of any nature whatsoever to the licensed
property. Licensee shall give Licensor 15 days notice of
its intention to commence construction prior to entering
upon the licensed property to commence construction.
(10) Access and Clearances: Licensee shall provide
Licensor with adequate access to all of Licensor's facili-
ties and at no time is there to be any interference with the
free movement of Licensor's equipment and materials.
Licensee shall construct and maintain an access road
immediately parallel to the eastern boundary of the property
which shall run the full length of the licensed property.
Said road shall be fifteen (15) feet in width and provide
access to adjacent property of Licensor at the southern and
northern borders of the licensed property. said road
together with applicable driveway aprons and curb
depressions shall be capable of supporting a gross load of
forty (40) tons on a three -axle vehicle, and shall be
maintained by Licensee, at Licensee's expense, so as to be
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2121
1%' 'reviNnn
passable at all times, and shall be kept clear of any
planting or other obstructions at all times so as to provide
ready access to Licensor's facilities. In connection with
the use of said licensed property Licensee shall maintain
the following clearances from the transmission line towers
at all times;
a. A 25- foot - radius around all tower legs
capable of supporting a gross load of
forty (40) tons on a three axle vehicle.
b. A 10- foot - radius around all steel poles.
c. A 10 -foot- radius around all wood poles.
(11) Dust Control: Licensee shall also provide
adequate controls for dust, odors and noise and take
appropriate steps necessary to prevent dust contamination of
Licensor's facilities located on, near or adjacent to the
licensed property. Licensee also agrees to take preventive
action to eliminate such dust, odors, noise or any other
nuisance which may disturb the adjacent or nearby community
and agrees to be responsible for and to assume all liability
for such dust, odor, noise or other nuisance disturbances.
(12) Pesticides and Herbicides_ Licensee agrees
that any pesticide or herbicide applications on the licensed
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property shall be made in accordance with all federal,
state, county and local laws. Licensee further agrees to
dispose of any pesticides, herbicides or any other toxic
substances which are declared to be either a health or
environmental hazard in such a manner as prescribed by
"AilhiI k; #d
2121
law. This will include, but not be limited to, contaminated
containers, clothing, equipment or any other contaminated
material.
(13) Hazardous Waste: Licensee shall not engage
in, or permit any other party to engage in, any activity on
the premises that violates any federal, state county or
local law, rules or regulations pertaining to hazardous,
toxic or infectious materials and /or waste. Licensee shall
indemnify and hold Licensor, its directors, harmless from
any and all claims, loss, damage, actions, causes of action,
expenses and /or liability arising from leaks of, spills of,
and /or contamination by or from hazardous materials and /or
wastes as defined by applicable laws or regulations, which
are attributable solely to the actions of, or failure to act
by, Licensee.
(14) Underground Facilities: Licensee shall
construct no underground facilities other than irrigation
and drainage pipelines and electrical and telephone lines.
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All underground facilities installed on the right of way
shall have a minimum cover of three feet and shall be
capable of withstanding a gross land of 40 tons on a 3 -axle
vehicle.
(15) Parkways and Landscaping: Licensee agrees to
keep parkway and sidewalk areas adjacent to said licensed
property, if any, free of weeds and trash. Licensee further
agrees to maintain said parkways and to provide landscaping
in a manner that is compatible with the adjoining properties
and in a manner satisfactory to Licensor.
(16) Fencing: Licensee may install fencing on said
licensed property, provided Licensee obtains the prior
written approval of Licensor therefor. In the event
Licensee installs fencing, double drive gates sixteen (16)
feet in width shall be provided at each end of the access
road required in Section 10 herein and shall be designed to
accommodate Licensor's locks. Any metallic fencing shall be
effectively grounded by Licensee. Licensee agrees to
maintain said fencing at Licensee's sole cost and expense.
Notwithstanding the above, Licensee shall not install,
operate or maintain or cause to permit to be installed,
operated or maintained any electrically charged fence on the
licensed property.
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21
'�AIINr'1
(17) Signs: Licensee agrees not to allow the
construction or placement of any sign, signboard or other
form of outdoor advertising on said licensed property
without prior written approval of Licensor. In the event of
a violation of this provision by Licensee or any one
claiming under Licensee, Licensor shall have the right to
enter upon said licensed property and to remove and dispose
of any such sign, signboard or other outdoor advertising to
charge the cost and expense of any such removal and disposal
to Licensee who agrees to pay the same on demand.
(18) Authority: This license is given pursuant to
the authority of and upon and subject to the conditions
prescribed by General Order No. 69 -C of the Public Utilities
Commission of the State of California dated and effective
July 10, 1985, which General Order No. 69 -C, by this
reference, is hereby incorporated herein and made a part
hereof.
(19) Indemnification: Licensee hereby agrees to
hold harmless and indemnify Licensor, its officers, agents
and employees, and its successors and assigns, from and
against all claims, loss, damage, actions, causes of action,
expense and /or liability arising from or growing out of loss
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WPX \RVW \AGR5O945
21 %'1
r
or damage to property, or injury to or death of persons,
including employees of Licensor resulting in any manner
whatsoever, directly or indirectly, by reason of this
license or the use or occupancy of said licensed property by
Licensee or any person claiming under Licensee.
(20) Utilities: Licensee agrees to pay all charges
and assessments for or in connection with water, electric
current or other utilities which may be furnished to or used
upon said licensed property by Licensee during the continu-
ance of this license. It is further agreed that in the
event Licensee shall fail to pay the above - mentioned charges
when due, Licensor shall have the right to pay the same and
charge the amount thereof to Licensee, who agrees to pay the
same on demand, together with interest at the maximum rate
allowed by law, from the date of expenditure by Licensor.
(21) Sub - License: Licensor understands that it is
Licenseefs intent to franchise the operation of the
municipal golf course for which the licensed property is to
be used to an experienced golf course operator. Any such
franchise shall be deemed to be a sub - license, subject to
all the terms and conditions of this License, and Licensee
shall make this License a part of any such franchise
agreement. Licensor shall have the right to reasonably
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WPX \RVW \AGR50945 IUQL4 I ftKW 6i
21 21
object to said sub - licensing based upon evidence of the
unreliability or fiscal incapacity of the proposed golf
course operator but shall not otherwise have any right to
Object. It is specifically understood and agreed that in
the event of such a sub - license, that the original Licensee,
to wit the City of E1 Segundo, shall remain responsible for
all of the terms and conditions of this license and that in
event of a violation, breach or failure to perform, that
Licensor may, at its option, enforce this License or
otherwise pursue its legal remedies against either said
original Licensee or sub - licensee.
(22) Takes. Assessments and Liens: Licensee agrees
to pay, when due, all taxes and assessments which may be
levied upon any crops or personal property which Licensee
caused to be grown, placed or maintained upon the said
licensed property, and agrees to keep said licensed property
free from all liens, including but not limited to mechanics
liens, and encumbrances by reason of the use or occupancy of
said licensed property by Licensee or any person claiming
under Licensee. It is further agreed that in the event
Licensee shall fail to pay the above - -mentioned taxes,
assessments, or liens when due, Licensor shall have the
right to pay the same and charge the amount thereof to
Licensee, who agrees to pay the same on demand, together
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WPX \RVW \AGR50945 21 �1
with interest at the maximum allowed by law, from the date
of expenditure by Licensor.
(23) Governing Law: Licensee agrees that in the
exercise of its rights under this license, Licensee shall
comply with all applicable federal, state, county and local
laws, and regulations in connection with its use of the
licensed property.
The existence, validity, construction, operation
and effect of this license and all of its terms and
provisions shall be determined in accordance with the laws
of the State of California.
(24) Holding Over: It is further agreed that if
Licensee shall retain possession of said licensed property
beyond the term hereof, or any renewal or extension hereof,
without the consent, express or implied, of Licensor, such
holding over may be terminated by Licensor at any time by
giving to Licensee thirty (30) days, prior notice in writing
for that purpose, and shall be subject to all of the terms,
covenants and conditions of this license, and Licensee shall
pay for such license during any such holding over, at the
last prevailing rate specified in paragraph 3, "Considera-
tion" hereof.
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WFX \RVW \AGR5094b
4.rvl� 1(v%f j,
21 21
(25) Termination for Breach: In the event Licensee
breaches or otherwise fails to perform any of the terms
hereof, this License shall be subject to termination at the
option of Licensor by Licensor giving Licensee 60 days
notice of its intention to terminate by reason of such
breach or failure to perform. Should Licensee fail to cure
such breach or perform within said 60 day period of time
this License shall be deemed terminated.
In the event of such termination, or when this
license expires by its express term, Licensee agrees, if so
requested in writing by Licensor, to remove at that time all
of its personal property from the licensed property and to
restore the ground to as near its original condition and
appearance as possible at its sole expense and risk. No
such termination hereof shall release Licensee from any
liability or obligation (whether of indemnity or otherwise),
which may have attached or accrued previous to or which may
be accruing at the time of, or by reason of such termination
or expiration.
Upon the termination of this license, Licensee
agrees to peaceably quit and surrender the licensed property
to Licensor in good order and condition. Any and all
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WPX \RVW \AGR5094b 21 Ll
IN "'rIUM
property of whatever kind or character remaining upon the
licensed property upon the reversion of the Licensor's
interest in the licensed property shall be and become the
personal property of Licensor, unless otherwise agreed in
writing by Licensor, but this shall not prevent Licensor
from requiring Licensee to remove, at Licensee's expense and
risk, any and all such property remaining upon the licensed
property.
Notwithstanding the foregoing, should Licensee's
activities on the licensed property interfere with or
endanger Licensor's use of the licensed property or in any
way create a nuisance or danger to the public or violate the
terms of this license, then Licensor shall be entitled to
terminate the license.
(26) Abandonment: In the event the use of said
licensed property shall be abandoned by Licensee or said
licensed property shall not be used by Licensee for a period
of Ninety (90) days, then at the option of Licensor, the
license hereby granted shall be deemed terminated without
further notice. Upon such termination, Licensee agrees to
comply with the conditions as specified in paragraph 26,
"Termination' hereof.
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2121
''PIPM
(27) Attorneyst Fees: If any action, proceeding,
arbitration or other dispute arising out of or relating to
this license is commenced, the prevailing party shall be
entitled to receive, in addition, to any other relief that
may be granted, the reasonable attorney's fees, costs and
expenses incurred by the prevailing party.
IN WITNESS WHEREOF, the parties hereto have caused
this instrument to be executed in duplicate as of the day
and year herein first above written
SOUTHERN CALIFORNIA EDISON COMPANY
"Licensor"
By
Real Properties & Administrative
Services
"Licensee"
By
CITY OF EL SEGUNDO ,
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38231 1255224
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21�
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA
��GIlNl1�
WW. RECORDED NOVEMBER 1, 1974 IN BOOK D6460 PAGE 733 OFFICIAL RECORDS.
: {X. RECORDED MARCH 1, 1975 IN BOOK D6578 PAGE 104, OFFICIAL RECORDS.
YY. RECORDED MARCH 15, 1976 IN BOOK D7006 PAGE 412, OFFICIAL RECORDS.
'AID MORTGAGE HAS BEEN RELEASED AS TO THE EASEMENTS SHOWN AS ITEM NO'S. 8 AND
5. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE
? URPOSES STATED HEREIN, AND INCIDENTAL PURPOSES,
.N FAVOR OF SHELL OIL COMPANY, INCORPORATED, A CORPORATION
(NO REPRESENTATION IS MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT)
7OR : PIPE LINES
RECORDED : AUGUST 6, 1941 IN BOOK 18534 PAGE 320, OFFICIAL RECORDS
+FFECTS : A STRIP OF LAND 10 FEET IN WIDTH, A CENTER LINE OF WHICH STRIP
IS DESCRIBED AS FOLLOWS:
3EGINNING AT A POINT WHICH BEARS SOUTH 47 DEGREES 30 MINUTES 42 SECONDS EAST
;0.00 FEET FROM MOST WESTERLY CORNER OF LOT 8 AS SHOWN ON MAPS OF PROPERTY OF
SOUTHERN CALIFORNIA EDISON COMPANY, LTD., FILED IN BOOK 3 PAGE 1 OF MAPS;
,HENCE NORTH 09 DEGREES 00 MINUTES 06 SECONDS WEST 33.77 FEET TO POINT IN
NORTHERLY LINE OF LOT 8, WHICH BEARS NORTH 89 DEGREES 59 MINUTES 54 SECONDS
?.AST 36.87 FEET FROM MOST WESTERLY CORNER OF LOT 8.
ALSO BEGINNING AT POINT WHICH BEARS SOUTH 89 DEGREES 59 MINUTES 54 SECONDS
WEST 97.12 FEET FROM MOST EASTERLY CORNEROF LOT 9, AS SHOWN ON MAPS; THENCE
NORTH 0 DEGREES 00 MINUTES 06 SECONDS WEST 82.18 FEET; THENCE NORTH 47 DEGREES
�0 MINUTES 42 SECONDS WEST PARALLEL WITH AND 5.0 FEET AT RIGHT ANGLES FROM
`IORTHEASTERLY LINE OF LOTS 9 AND 10, 222.20 FEET TO POINT IN WESTERLY LINE OF
SOT 10, WHICH LIES SOUTH 0 DEGREES 03 MINUTES 13 SECONDS WEST 6.77 FEET FROM
:AOST NORTHERLY CORNER OF LOT 10.
ALSO BEGINNING AT A POINT IN EASTERLY LINE OF LOT 11 SHOWN ON MAP, WHICH LIES
5.0 FEET SOUTHWESTERLY FROM AND AT RIGHT ANGLES TO SOUTHEASTERLY PROLONGATION
OF NORTHEASTERLY LINE OF LOT 11; THENCE NORTHWESTERLY PARALLEL WITH AND 5.0
FEET AT RIGHT ANGLES FROM VARIOUS COURSES COMPRISING NORTHEASTERLY BOUNDARY OF
!OT 11 TO POINT IN WESTERLY LINE THEREOF, ALSO BEGINNING AT POINT IN SOUTHERLY
SINE OF LOT 12, SHOWN ON MAPS, WHICH LIES 5.0 FEET SOUTHWESTERLY FROM AND AT
RIGHT ANGLES TO SOUTHEASTERLY PROLONGATION OF MOST SOUTHERLY COURSE OF
`IORTHEASTERLY BOUNDARY OF LOT 12; THENCE NORTHWESTERLY DIRECTLY PARALLEL WITH
AND 5.0 FEET AT RIGHT ANGLES FROM VARIOUS COURSES AND 5.0 FEET MEASURED
RADIALLY FROM VARIOUS CURVES COMPRISING NORTHEASTERLY BOUNDARY OF SAID LOT 12
TO POINT IN NORTHERLY LINE THEREOF.
ALSO BEGINNING AT POINT ON SOUTHERLY LINE OF LOT 13, SHOWN ON MAPS; WHICH LIES
NORTH 89 DEGREES 56 MINUTES 54 SECONDS WEST 16.01 FEET FROM MOST EASTERLY
CORNER OF LOT 13; THENCE NORTH 41 DEGREES 42 MINUTES 29 SECONDS WEST 36.39
FEET; THENCE NORTH 14 DEGREES 28 DEGREES 04 MINUTES WEST 86.44 FEET; THENCE
NORTH 26 DEGREES 54 MINUTES 21 SECONDS WEST PARALLEL WITH AND 5.0 FEET AT
RIGHT ANGLES FROM NORTHEASTERLY LINE OF LOT 13, 84.85 FEET TO POINT ON
WESTERLY LINE OF LOT 13, WHICH BEARS SOUTH 0 DEGREES 02 MINUTES 49 SECONDS
EAST 11.07 FEET FROM MOST NORTHERLY CORNER THEREOF.
8514095 PAGE 05
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88231 1255224 G 0
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA 1
�° - ?.
7. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES,
IN FAVOR OF : CITY OF EL SEGUNDO, A MUNICIPAL CORPORATION
(NO REPRESENTATION IS MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT)
FOR : PUBLIC ROAD AND HIGHWAY PURPOSES
RECORDED : FEBRUARY 26, 1953 IN BOOK 41067 PAGE 370, OFF =CIAL RECORDS
AFFECTS : THAT PORTION OF LOT 12 AS PER MAP NO. 8 OF THIS PROPERTY OF THE
SOUTHERN CALIFORNIA EDISON COMPANY, LTD.,', RECORDED IN BOOK 3
PAGE 5 OF MAPS, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER- OF-SAID LOT 12; THENCE WESTERLY ALONG
THE NORTH LINE OF SAID LOT 12 TO THE EAST LINE OF SEPULVEDA BLVD., AS
ESTABLISHED BY FINAL DECREE OF CONDEMNATION ENTERED ON DECEMBER 4, 1934 IN
CASE NO. 357580 SUPERIOR COURT, LOS ANGELES COUNTY, AS RECORDED IN BOOK 13174
PAGE 92, OFFICIAL RECORDS; THENCE SOUTHERLY ALONG SAID EAST LINE TO THE
NORTHEASTERLY LINE OF THAT CERTAIN RIGHT OF WAY 80 FEET WIDE, DESCRIBED IN
DEED TO THE PACIFIC RAILWAY ELECTRIC RAILWAY COMPANY, RECORDED MAY 27, 1919 IN
BOOK 5750 PAGE 43 OF DEEDS; THENCE SOUTHEASTERLY ALONG SAID NORTHEASTERLY LINE
TO A POINT WHICH IS 10.00 FEET EASTERLY, MEASURED AT RIGHT ANGLES FROM SAID
EAST LINE OF SEPULVEDA BLVD.; THENCE NORTHEASTERLY IN A DIRECT LINE TO A POINT
WHICH IS LOCATED 30.0 FEET SOUTHERLY; MEASURED AT RIGHT ANGLES, FROM SAID
NORTH LINE OF LOT 12 AND 30.0 FEET EASTERLY, MEASURED AT RIGHT ANGLES, FROM
SAID EAST LINE OF SEPULVEDA BLVD., THENCE EASTERLY PARALLEL WITH SAID NORTH
LINE, TO THE NORTHEASTERLY LINE OF SAID LOT 12; THENCE NORTHWESTERLY ALONG
SAID LAST MENTIONED NORTHEASTERLY LINE TO THE POINT OF BEGINNING.
THAT PORTION OF LOT 13, COUNTY OF LOS ANGELES, AS PER MAP RECORDED 8,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 13; THENCE WESTERLY ALONG THE
SOUTH LINE OF SAID LOT 13 TO THE EAST LINE OF SEPULVEDA BLVD. AS ESTABLISHED
BY SAID DECREE OF CONDEMNATION; THENCE NORTHERLY ALONG SAID EAST LINE TO ITS
INTERSECTION WITH THE NORTHEASTERLY LINE OF SAID LOT 13; THENCE SOUTHEASTERLY
TO A POINT WHICH IS LOCATED 131.0 FEET NORTHERLY MEASURED AT RIGHT ANGLES,
FROM SAID SOUTH LINE OF LOT 13 AND 10.0 FEET EASTERLY, MEASURED AT RIGHT
ANGLES, FROM SAID EAST LINE OF SEPULVEDA BLVD., THENCE SOUTHERLY PARALLEL WITH
SAID EAST LINE, 81.0 FEET TO A POINT; THENCE SOUTHEASTERLY.IN A DIRECT LINE TO
A POINT WHICH IS LOCATED 30.0 FEET EASTERLY, MEASURED AT-RIGHT ANGLES, FROM
SAID EAST LINE AND 30.0 FEET NORTHERLY, MEASURED AT RIGHT ANGLES, FROM SAID
SOUTH LINE; THENCE EASTERLY, PARALLEL WITH SAID SOUTH LINE, TO SAID
NORTHEASTERLY LINE OF LOT 13; THENCE SOUTHEASTERLY ALONG SAID NORTHEASTERLY
LINE TO THE POINT OF BEGINNING.
8. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES,
IN FAVOR OF : STATE OF CALIFORNIA
(NO REPRESENTATION IS MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT)
FOR : PUBLIC HIGHWAY
RECORDED : OCTOBER 7, 1971 AS INSTRUMENT NO. 317
AFFECTS : DESCRIBED AS FOLLOWS:
8514095 PAGE 06
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88231 1255224 G
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA +�
-911"n-1
COMMENCING AT THE INTERSECTION OF THE EASTERLY LINE OF SEPULVEDA BOULEVARD, A$
ESTABLISHED BY FINAL DECREE OF CONDEMNATION ENTERED ON DECEMBER 4, 1934 IN.
CASE NO. 357580, IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR
SAID COUNTY, AS RECORDED IN BOOK 13174, PAGE 92 OF OFFICIAL RECORDS, IN SAID
OFFICE, WITH THE SOUTHERLY LINE OF THAT CERTAIN PARCEL OF LAND DESCRIBED IN
DEED TO JOHN RAMANO AND ANTHONY BRENT, RECORDED IN BOOK D -4017, PAGE 234 OF
OFFICIAL RECORDS, IN SAID OFFICE; THENCE NORTH 4 DEGREES 13 MINUTES 15 SECTION
EAST, 336.77 FEET; THENCE NORTH 0 DEGREES 04 MINUTES 00 SECONDS WEST, 225.58
FEET TO THE SOUTHEASTERLY LINE OF PARCEL "B" DESCRIBED IN DEED TO THE CITY OF
EL SEGUNDO, RECORDED IN BOOK 56432, PAGES 339 THROUGH 348, INCLUSIVE, OF
OFFICIAL RECORDS IN SAID OFFICE, AND THE TRUE POINT OF BEGINNING; THENCE,
ALONG SAID SOUTHEASTERLY LINE, SOUTH 68 DEGREES 24 MINUTES 34 SECONDS WEST,
1.87 FEET TO THE SOUTHWESTERLY LINE OF SAID LOT 12; THENCE ALONG SAID
SOUTHWESTERLY LINE, SOUTH 23 DEGREES 53 MINUTES 13 SECONDS EAST, 4.32 FEET TO
THE INTERSECTION OF SAID SOUTHWESTERLY LINE WITH THAT CERTAIN COURSE
HEREINBEFORE DESCRIBED AS NORTH 0 DEGREES 04 MINUTES 00 SECONDS WEST, 225.58
FEET ", SAID POINT BEING SOUTH 0 DEGREES 04 MINUTES 00 SECONDS EAST, 4.64 FEET,
MEASURED ALONG SAID COURSE, FROM THE NORTHERLY TERMINUS OF SAID COURSE; THENCE
ALONG SAID COURSE, NORTH 0 DEGREES 04 MINUTES 00 SECONDS WEST, 4.64 FEET TO
THE POINT OF BEGINNING.
9. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES,
IN FAVOR OF : CITY OF EL SEGUNDO
(NO REPRESENTATION IS MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT)
FOR : SLOPE
RECORDED : OCTOBER 10, 1972 AS INSTRUMENT NO. 4419
AFFECTS : THAT PORTION OF LOT 12, AS SHOWN ON MAP NO. 8 OF PROPERTY OF
SOUTHERN CALIFORNIA EDISON COMPANY, LTD, RECORDED IN BOOK 3,
PAGE 5 OF OFFICIAL MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF THE LAND DESCRIBED AND DESIGNATED AS
PARCEL "B" IN THE ROAD EASEMENT FROM SOUTHERN CALIFORNIA EDISON COMPANY, A
CORPORATION, TO THE CITY OF EL SEGUNDO, DATED JANUARY 29, 1957 AND RECORDED
JANUARY 27, 1958 IN BOOK 56432, PAGE 339 OF OFFICIAL RECORDS, IN THE OFFICE OF
SAID RECORDER; THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL B, SOUTH 68
DEGREES 24 MINUTES 34 SECONDS WEST 62 FEET; THENCE SOUTH 89 DEGREES 56 MINUTES
57 SECONDS EAST, 67.74FEET TO A POINT IN THE EASTERLY LINE OF SAID LOT 12,
SAID POINT BEING SOUTH 23 DEGREES 47 MINUTES 54 SECONDS EAST 25.00 FEET,
MEASURED ALONG SAID EASTERLY LINE, FROM THE POINT OF BEGINNING; THENCE NORTH
23 DEGREES 47 MINUTES 54 SECONDS WEST, 25.00 FEET TO THE POINT OF BEGINNING.
8514095 PAGE 07
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••
88231 1255224 G
708
;6ivlgb[Viva,
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA 21f13-
_0. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES,
:N FAVOR OF : CITY OF EL SEGUNDO, A MUNICIPAL CORPORATION
(NO REPRESENTATION IS MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT)
?OR : SEWER AND STORM DRAIN
aECORDED : NOVEMBER 25, 1980 AS INSTRUMENT NO. 80- 1192121
:AFFECTS : DESCRIBED AS FOLLOWS:
WHAT PORTION OF LOT 12 AS SHOWN ON A MAP ENTITLED "PROPERTY OF SOUTHERN
CALIFORNIA EDISON COMPANY, LTD. MAP NO. 8" RECORDED IN BOOK 3, PAGES 1 TO 7,
INCLUSIVE, OF OFFICIAL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A FOUND 2 INCH IRON PIPE WITH BRASS CAP SET AT A POINT IN THE
:NORTHEASTERLY BOUNDARY OF SAID LOT 12, SAID POINT ALSO BEING IN THE
SOUTHWESTERLY BOUNDARY OF THE 143.84 ACRE PARCEL OF LAND SHOWN ON A MAP FILED
:N BOOK 89, PAGES 25 AND 26 OF RECORDS OF SURVEYS IN THE OFFICE OF SAID COUNTY
RECORDER, SAID POINT BEING DISTANT NORTH 75 DEGREES 13 MINUTES 23 SECONDS
`JEST, 33.31 FEET FROM THE SOUTHEASTERLY TERMINUS OF THAT PARTICULAR COURSE
SHOWN AS SOUTH 75 DEGREES 13 MINUTES 23 SECONDS EAST, 737.68 FEET" ON SAID
`4AP; THENCE SOUTH 46 DEGREES 09 MINUTES _45 SECONDS WEST, 193.34 FEET TO THE
POINT OF INTERSECTION OF THE NORTHEASTERLY PROLONGATION OF THE NORTHWESTERLY
LINE OF THAT CERTAIN PARCEL OF LAND DESCRIBED IN A DEED TO PACIFIC ELECTRIC
LAND COMPANY, RECORDED JULY 7, 1914, IN BOOK 5839, PAGE 185 OF DEEDS, IN THE
OFFICE OF SAID COUNTY RECORDER, WITH THE NORTHEASTERLY BOUNDARY OF THAT
CERTAIN 80 FOOT WIDE STRIP OF LAND DESCRIBED IN A DEED TO PACIFIC ELECTRIC
RAILWAY COMPANY, RECORDED MAY 27, 1913, IN BOOK 5750, PAGE 43 OF DEEDS IN THE
OFFICE OF SAID COUNTY RECORDER, SAID POINT ALOS BEING IN THE SOUTHEASTERLY
BOUNDARY OF SAID LOT 12, SAID POINT ALSO BEING IN THE SOUTHEASTERLY BOUNDARY
OF SAID LOT 12, SAID POINT ALSO BEING IN THE WESTERLY PROLONGATION OF A
NON— TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 914.93 FEET, AS SHOWN
;N THE SOUTHERLY LINE OF SAID 143.84 ACRE PARCEL OF LAND, A RADIAL OF SAID
CURVE FROM SAID POINT BEARS NORTH 1 DEGREES 00 MINUTES 23 SECONDS WEST; THENCE
WESTERLY 84.20 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 5 DEGREES 16
MINUTES 22 SECONDS; THENCE NORTH 46 DEGREES 09 MINUTES 45 SECONDS EAST, 215.77
FEET TO SAID NORTHEASTERLY LINE OF LOT 12; THENCE ALONG SAID NORTHEASTERLY
LINE, SOUTH 75 DEGREES 13 MINUTES 23 SECONDS EAST 70.28 FEET TO THE POINT OF
BEGINNING.
11. COVENANTS, CONDITIONS AND RESTRICTIONS IN THE ABOVE RECORDED
INSTRUMENT.
RESTRICTIONS, IF ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN
ARE DELETED.
12. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES,
IN FAVOR OF : SOUTHERN CALIFORNIA GAS COMPANY, A CORPORATION
(NO REPRESENTATION IS MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT)
FOR ' : GAS PIPE LINES
8514095 PAGE 08
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100
88231 1255224
L
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA
RECORDED : DECEMBER 17, 1980 AS INSTRUMENT NO. 80-1268253o,,
AFFECTS : DESCRIBED AS FOLLOWS:
708
A STRIP OF LAND, 10 FEET WIDE, LYING WITHIN THAT PORTION OF LOT 12, AS SHOWN
ON A MAP ENTITLED "PROPERTY OF SOUTHERN CALIFORNIA EDISON COMPANY, LTD., MAP
NO. 8 ", RECORDED IN BOOK 3, PAGES 1 TO 7, INCLUSIVE, OF OFFICIAL MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, THE CENTERLINE OF SAID STRIP OF
LAND BEING DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE NORTHEASTERLY BOUNDARY OF SAID LOT 12, SAID POINT
ALSO BEING IN THE SOUTHWESTERLY BOUNDARY OF THE 143.84 ACRE PARCEL OF LAND
SHOWN ON A MAP FILED IN BOOK 89, PAGES 25 AND 26 OF RECORD OF SURVEYS, IN THE
OFFICE OF SAID COUNTY RECORDER, SAID POINT BEING DISTANT NORTH 75 DEGREES 13
MINUTES 23 SECONDS" WEST, 33.31 FEET FROM THE SOUTHEASTERLY TERMINUS OF THAT
PARTICULAR COURSE SHOWN AS "SOUTH 75 DEGREES 13 MINUTES 23 SECONDS EAST,
737.68 FEET" AS SHOWN ON SAID RECORD OF SURVEY MAP; THENCE SOUTH 46 DEGREES 09
MINUTES 45 SECONDS WEST, 193.34 FEET TO THE POINT OF INTERSECTION OF THE
NORTHEASTERLY PROLONGATION OF THE NORTHWESTERLY LINE OF THAT CERTAIN PARCEL OF
LAND DESCRIBED IN THE DEED TO PACIFIC ELECTRIC LAND COMPANY, RECORDED JULY 7,
1914, IN BOOK 5839, PAGE 185 OF DEEDS, IN THE OFFICE OF SAID COUNTY RECORDER,
WITH THE NORTHEASTERLY BOUNDARY OF THAT CERTAIN 80 FOOT WIDE STRIP OF LAND
DESCRIBED IN A DEED TO PACIFIC ELECTRIC RAILWAY COMPANY, RECORDED MAY 27,
1913, IN BOOK 5750, PAGE 43 OF DEEDS, IN THE OFFICE OF SAID COUNTY RECORDER,
SAID POINT ALSO BEING IN THE SOUTHEASTERLY BOUNDARY OF SAID LOT 12, SAID POINT
ALSO BEING IN THE WESTERLY PROLONGATION OF A NON — TANGENT CURVE CONCAVE
NORTHERLY HAVING A RADIUS OF 914.93 FEET, AS SHOWN IN THE SOUTHERLY LINE OF,
SAID 143.84 ACRE PARCEL OF LAND, A RADIAL OF SAID CURVE FROM SAID POINT BEARS
NORTH 1 DEGREES 00 MINUTES 23 SECONDS WEST; THENCE WESTERLY 77.46 FEET ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 4 DEGREES 51 MINUTES 03 SECONDS TO A
POINT ON A LINE PARALLEL WITH AND 55.00 FEET NORTHWESTERLY, MEASURED AT RIGHT
ANGLES, FROM THE COURSE HEREINBEFORE DESCRIBED AS "SOUTH 46 DEGREES 09 MINUTES
45 SECONDS WEST, 193.34 FEET" AND ITS SOUTHWESTERLY PROLONGATION, SAID POINT
ALSO BEING THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE ALONG SAID
PARALLEL LINE, NORTH 46 DEGREES 09 MINUTES 45 SECONDS EAST, 214.30 FEET TO A
POINT IN THE NORTHEASTERLY BOUNDARY OF SAID LOT 12.
THE SIDELINES OF SAID STRIP OF LAND SHALL BE PROLONGED OR SHORTENED SO AS TO
TERMINATE IN THE NORTHEASTERLY AND SOUTHEASTERLY BOUNDARIES OF SAID LOT 12.
13. COVENANTS, CONDITIONS AND RESTRICTIONS IN THE ABOVE RECORDED
INSTRUMENT.
RESTRICTIONS, IF ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN
ARE DELETED.
14. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES,
IN FAVOR OF : CITY OF EL SEGUNDO, A MUNICIPAL CORPORATION
(NO REPRESENTATION IS MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT)
FOR : ROAD PURPOSE
RECORDED : MAY 4, 1981 AS INSTRUMENT NO. 81- 445502
AFFECTS : DESCRIBED AS FOLLOWS:
8514095 PAGE 09
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101
88231 1255224 G 708
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA 21 21
fl' rrllkn�l
THAT PORTION OF LOT 12 AS SHOWN ON A MAP ENTITLED "PROPERTY OF SOUTHERN
CALIFORNIA EDISON COMPANY, LTD., MAP NO. 8" RECORDED IN BOOK 3, PAGES 1 TO 7,
INCLUSIVE OF OFFICIAL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
PARCEL 1:
A STRIP OF LAND 115.00 FEET WIDE LYING 60.00 FEET NORTHWESTERLY AND 55.00 FEET
SOUTHEASTERLY MEASURED AT RIGHT ANGLES, RESPECTIVELY, FRO14 THE FOLLOWING
DESCRIBED LINE:
BEGINNING AT THE SOUTHEASTERLY TERMINUS OF THAT PARTICULAR COURSE SHOWN AS
"SOUTH 44 DEGREES 21 MINUTES 07 SECONDS EAST, 1393.78 FEET" ALONG THE
NORTHEASTERLY LINE OF SAID LOT 12, SAID COURSE ALSO SHOWN ON A MAP FILED IN
BOOK 89, PAGES 25 AND 26 OF RECORDS OF SURVEY IN THE OFFICE OF SAID COUNTY
RECORDER; THENCE NORTH 44 DEGREES 21 MINUTES 07 SECONDS WEST, 125.00 FEET
ALONG SAID NORTHEASTERLY LINE TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 45
DEGREES 38 MINUTES 53 SECONDS WEST, 119.55 FEET TO THE SOUTHWESTERLY LINE OF
SAID LOT 12.
THE SIDELINES OF SAID STRIP OF LAND SHALL BE PROLONGED OR SHORTENED SO AS TO
TERMINATE IN SAID SOUTHWESTERLY LINE.
PARCEL 2:
THAT PORTION OF LOT 12 AS SHOWN ON A MAP ENTITLED "PROPERTY OF SOUTHERN
CALIFORNIA EDISON COMPANY, LTD., MAP NO. 8" RECORDED IN BOOK 3, PAGES 1 TO 7,
INCLUSIVE, OF OFFICIAL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHERLY CORNER OF THE ABOVE DESCRIBED PARCEL 1; THENCE
ALONG THE NORTHWESTERLY LINE OF SAID PARCEL 1, SOUTH 45 DEGREES 38 MINUTES 53
SECONDS WEST, 58.00 FEET TO A POINT OF CUSP WITH A TANGENT CURVE CONCAVE
NORTHWESTERLY HAVING A RADIUS OF 75.00 FEET AND FROM WHICH POINT A RADIAL
BEARS NORTH 44 DEGREES 21 MINUTES 07 SECONDS WEST; THENCE NORTHERLY ALONG SAID
CURVE THROUGH A CENTRAL ANGLE OF 50 DEGREES 38 MINUTES 56 SECONDS A DISTANCE
OF 66.30 FEET TO THE NORTHEASTERLY LINE OF SAID LOT 12; THENCE SOUTH 44
DEGREES 21 MINUTES 07 SECONDS EAST, 27.44 FEET, MORE OR LESS, ALONG SAID
NORTHEASTERLY LINE TO THE POINT OF BEGINNING.
PARCEL 3:
THAT PORTION OF LOT 12 AS SHOWN ON A MAP ENTITLED "PROPERTY OF SOUTHERN
CALIFORNIA EDISON COMPANY, LTD. MAP NO. 8" RECORDED IN BOOK 3, PAGES 1 TO 7,
INCLUSIVE, OF OFFICIAL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE EASTERLY CORNER OF THE ABOVE DESCRIBED PARCEL 1; THENCE ALONG
THE SOUTHEASTERLY LINE OF SAID PARCEL 1, SOUTH 45 DEGREES 36 MINUTES 53
SECONDS WEST, 51.01 FEET TO A POINT OF CUSP WITH A TANGENT CURVE CONCAVE
SOUTHERLY HAVING A RADIUS OF 100.00 FEET AND FROM WHICH POINT A RADIAL BEARS
SOUTH 44 DEGREES 21 MINUTES 07 SECONDS EAST; THENCE EASTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 30 8DGS 40 MINUTES 20 SECONDS A DISTANCE OF 53.53
FEET, TO THE NORTHEASTERLY LINE OF SAID LOT 12; THENCE NORTH 44 DEGREES 21
MINUTES 07 SECONDS WEST, 13.99 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
8514095 PAGE 10 271
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88231 1255224 G, 708
s
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA
15. COVENANTSp CONDITIONS AM RESTRICTIONS IN THE ABOVE RECORDED
INSTRUMENT.
&RESTRICTIONS, IF ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN
ARE DELETED.
%JQl Y I rihl61 k,
2121
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8514095 PAGE 11
272
103
Oct 25,89 11:39 MAWHINN&_ AND ASSOCIATES INC.
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273
104
88231 1255224 G 708
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA
GUARANTEE NO. : 8514095
TITLE OFFICER : A. WILLIA14S
FEE : $400.00
REFERENCE : CITY OF EL SEGUNDO GOLF COURSE
EFFECTIVE DATE: JULY 28, 1988
ASSURED .
BURK, WILLIAM & SORENSEN
LIABILITY: $25,000.00
NATURE OF ACTION: TO CONDEMN
THE NECESSARY PARTIES DEFENDANT IN AN ACTION TO
CONDEMN
ARE AS HEREIN STATED.
2121
TITLE TO THE ESTATE OR INTEREST REFERRED TO HEREIN, AT THE DATE
HEREOF, IS VESTED IN:
SOUTHERN CALIFORNIA EDISON COMPANY, LTD.
THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR
REFERRED TO COVERED BY THIS GUARANTEE IS A FEE.
EXCEPTIONS:
1. ANY TAXES, BONDS OR ASSESSMENTS WILL BE REPORTED LATER.
2. THE LIEN OF SUPPLEMENTAL TAXES, IF ANY, ASSESSED PURSUANT TO THE
PROVISIONS OF CHAPTER 3.5 (COMMENCING WITH SECTION 75) OF THE REVENUE
AND TAXATION CODE OF THE STATE OF CALIFORNIA.
3. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES,
IN FAVOR OF : COUNTY OF LOS ANGELES
(NO REPRESENTATION IS MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT)
FOR : PUBLIC ROAD AND HIGHWAY
RECORDED : DECEMBER 9, 1913 IN BOOK 5670, PAGE 48 OF DEEDS
AFFECTS : THE NORTHERLY 20 FEET
EXHIBIT _ "B"
8514095 PAGE 01
274
105
88231 1255224 G
708
�VUIV 1
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA
21 '1
4. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE �a�k'
PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES,
IN FAVOR OF : STATE OF CALIFORNIA
(NO REPRESENTATION IS MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT)
FOR : PIPE LINES, PUBLIC UTILITIES, SPUR TRACKS AND GAS PIPES
RECORDED : IN BOOK 9840 PAGE 33, OFFICIAL RECORDS
AFFECTS : STREETS, ROADS AND ALLEYS
1
5. THE INTEREST OF SOUTHERN CALIFORNIA EDISON COMPANY IS SUBJECT TO:
?, MORTGAGE OR DEED OF TRUST DATED AS OF OCTOBER 1, 1923, EXECUTED BY SOUTHERN
CALIFORNIA EDISON COMPANY, A CORPORATION TO HARRIS TRUST AND SAVINGS BANK, AN
ILLINOIS CORPORATION, AND PACIFIC-SOUTHWEST TRUST AND SAVINGS BANK, WHICH HAS
BEEN SUCCEEDED BY SECURITY -FIRST NATIONAL BANK OF LOS ANGELES, A CORPORATION,
TRUSTEE, TO SECURE AN INDEBTEDNESS EVIDENCED BY BONDS, AND ANY OTHER AMOUNTS,
PAYABLE UNDER THE TERMS THEREOF, RECORDED NOVEMBER 15, 1923, IN BOOK 2963 PAGE
1 OF OFFICIAL RECORDS AND RE- RECORDED SEPTEMBER 16, 1935, IN BOOK 13715 PAGE 1
OF OFFICIAL RECORDS.
A CERTIFICATE OF RE- RECORDATION OF SAID MORTGAGE OR DEED OF TRUST AND OF
SUPPLEMENTAL INDENTURES, A., B., C., AND D., HEREAFTER SHOWN WAS RECORDED
SEPTEMBER 13, 1939, IN BOOK 16891 PAGE 160 OF OFFICIAL RECORDS.
THE FOLLOWING INDENTURES SUPPLEMENTAL THERETO ARE FOUND OF RECORD:
A. DATED MARCH 1, 1927, RECORDED APRIL 2$, 1927, IN BOOK 6634 PAGE 235 OF
OFFICIAL RECORDS, AND RE- RECORDED SEPTEMBER 16, 1935 IN BOOK 13681 PAGE 78 OF
OFFICIAL RECORDS.
B. DATED APRIL 25, 1935, RECORDED APRIL 29, 1935, IN BOOK 13333 PAGE 352 OF
OFFICIAL RECORDS.
C. DATED JUNE 24, 1935, RECORDED JULY 1, 1935, IN BOOK 13416 PAGE 386 OF
OFFICIAL RECORDS.
D. DATED SEPTEMBER 1, 1935, RECORDED SEPTEMBER 27, 1935, IN BOOK 13730 PAGE
15 OF OFFICIAL RECORDS.
E. DATED AUGUST 15, 1939, RECORDED AUGUST 18, 1939, 8B 16833 PAGE 164 OF
OFFICIAL RECORDS.
F. DATED AUGUST 21, 1939, RECORDED AUGUST 24, 1939, IN BOOK 16889 PAGE 146 OF
OFFICIAL RECORDS.
G. DATED SEPTEMBER 1, 1940, RECORDED OCTOBER 15, 1940, IN BOOK 17933 PAGE 1
OF OFFICIAL RECORDS.
CERTIFICATE OF RE- RECORDATION OF SAID MORTGAGE OR DEED OF TRUST AND OF THE
SUPPLEMENTAL INDENTURES ABOVE ENUMERATED WERE RECORDED AUGUST 16, 1943, IN
BOOK 20215 PAGE 143 OF OFFICIAL RECORDS, AND MAY 12, 1947, IN BOOK 24610 PAGE
1 OF OFFICIAL RECORDS.
H. DATED JANUARY 15, 1948, RECORDED JANUARY 21, 1948, IN BOOK 25876 PAGE 356,
OFFICIAL RECORDS.
8514095 PAGE 02
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88231 1255224 G
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA
2121
rt -rmlvnr►
I. DATED AUGUST 15, 1948, RECORDED AUGUST 18, 1948 IN BOOK 26958 PAGE 1 OF
OFFICIAL RECORDS.
J. DATED FEBRUARY 15, 1951, RECORDED FEBRUARY 21, 1951, IN BOOK 35626 PAGE 2
OF OFFICIAL RECORDS.
K. DATED AUGUST 15, 1951, RECORDED AUGUST 29, 1951, IN BOOK 37100 PAGE 327 OF
OFFICIAL RECORDS. ,'
L. DATED AUGUST 15, 1953, RECORDED AUGUST 26, 1953, IN BOOK 42557 PAGE 1 OF
OFFICIAL RECORDS.
M. DATED AUGUST 15, 1954, RECORDED AUGUST 18, 1954, IN BOOK 45342 PAGE 1 OF
OFFICIAL RECORDS.
N. DATED AUGUST 15, 1956, RECORDED APRIL 17, 1956 IN BOOK -50909 PAGE 68 OF
OFFICIAL RECORDS.
0. DATED FEBRUARY 15, 1957, RECORDED FEBRUARY 19, 1957, IN BOOK 53689 PAGE 8
OF OFFICIAL RECORDS.
P. DATED JULY 1, 1957, RECORDED JULY 1, 1957, IN BOOK 54935 PAGE 94 OF
OFFICIAL RECORDS.
Q. DATED AUGUST 15, 1957, RECORDED AUGUST 27, 1957, 8B 55451 PAGE 116 OF
OFFICIAL RECORDS.
R. DATED AUGUST 15, 1958, RECORDED AUGUST 25, 1958, IN BOOK D -196 PAGE 105 OF
OFFICIAL RECORDS.
S. DATED JANUARY 15, 1960, RECORDED JANUARY 26, 1960, IN BOOK T -1117 PAGE 165
OF OFFICIAL RECORDS.
T. DATED AUGUST 15, 1960, RECORDED AUGUST 23,1960, IN BOOK D -953 PAGE 252 OF
OFFICIAL RECORDS.
U. DATED APRIL 1, 1961, RECORDED APRIL 4, 1961, IN BOOK 5 -1741 PAGE 231 OF
OFFICIAL RECORDS.
V. DATED MAY 1, 1962, RECORDED MAY 1, 1962, IN BOOK S -1126 PAGE 237 OF
OFFICIAL RECORDS.
W. DATED OCTOBER 15, 1962, RECORDED OCTOBER 30, 1962, IN BOOK 1-2673 PAGE
873, OFFICIAL RECORDS.
X. DATED MAY 15, 1963, RECORDED MAY 22, 1963, IN BOOK T -3030 PAGE 470 OF
OFFICIAL RECORDS.
AA. DATED FEBRUARY 15, 1964, RECORDED FEBRUARY 25, 1964, IN BOOK T -3540 PAGE
20 OF OFFICIAL RECORDS, 3828.
BB. DATED FEBRUARY 1, 1965, RECORDED FEBRUARY 9, 1965, IN BOOK D -2793 PAGE
418 OF OFFICIAL RECORDS, INSTRUMENT NO. 3447.
CC. DATED FEBRUARY 1, 1965, RECORDED FEBRUARY 9, 1965, IN BOOK 0-2793 PAGE
8514095 PAGE 03
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98231 1255224 G %jQVi k *ikj 97, 0 8
21 ?1
TICOR TITLE INSURANCE COMPANY OF CALIFORNIA
445 OF OFFICIAL RECORDS, INSTRUMENT NO. 3448.
DD. DATED MAY 1, 1966, RECORDED MAY 11, 1966, IN BOOK D -3301 PAGE 219 OF
OFFICIAL RECORDS, INSTRUMENT NO. 2669.
EE. DATED AUGUST 16, 1955, RECORDED AUGUST 23, 1966, IN BOOK D -3406 PAGE651
OF OFFICIAL RECORDS, INSTRUMENT 2249.
FF. DATED AUGUST 15, 1966, RECORDED AUGUST 23, 1966, IN BOOK D -3406 PAGE 672
OF OFFICIAL RECORDS, INSTRUMENT NO. 2250. It
GG. DATED MAY 1, 1967, RECORDED MAY 10, 1967, IN BOOK D -5340 PAGE 706 OF
OFFICIAL RECORDS, INSTRUMENT NO. 2267.
HH. DATED FEBRUARY 1, 1968, RECORDED FEBRUARY 6, 1968, IN BOOK D -3906 PAGE 71
OF OFFICIAL RECORDS, INSTRUMENT NO. 1999.
II. DATED FEBRUARY 1, 1968, RECORDED FEBRUARY 6, 1968 IN BOOK D -3906 PAGE 93
OF OFFICIAL RECORDS, INSTRUMENT NO. 2000.
JJ. DATED AUGUST 1, 1968, RECORDED AUGUST 21, 1968, IN BOOK R -3047 PAGE 651
OF OFFICIAL RECORDS, INSTRUMENT NO. 2161.
KK. DATED JANUARY 15, 1969, RECORDED JANUARY 23, 1969, IN BOOK D -4259 PAGE
611 OF OFFICIAL RECORDS, INSTRUMENT NO., 2271.
LL. DATED JANUARY 15, 1969, RECORDED JANUARY 23, 1969, IN BOOK D -4259 PAGE
627 OF OFFICIAL RECORDS, INSTRUMENT NO. 2272.
MM. DATED OCTOBER 1, 1969, RECORDED OCTOBER 21, 1969 IN BOOK D -4532 PAGE 5 OF
OFFICIAL RECORDS, INSTRUMENT NO. 1826.
NN. DATED OCTOBER 1, 1969, RECORDED OCTOBER 21, 1969 IN BOOK D -4532 PAGE 19
OF OFFICIAL RECORDS, INSTRUMENT NO. 1827.
00. DATED DECEMBER 1, 1970, RECORDED DECEMBER 3, 1970 IN BOOK D -4906 PAGE 72
OF OFFICIAL RECORDS, INSTRUMENT NO. 2202.
PP. DATED DECEMBER 1, 1970, RECORDED DECEMBER 3, 1970 IN BOOK D -4906 PAGE 90
OF OFFICIAL RECORDS, INSTRUMENT NO. 2203.
QQ. DATED SEPTEMBER 15, 1971, RECORDED SEPTEMBER 21, 1971 IN BOOK T -7213
PAGE 971 OF OFFICIAL RECORDS, INSTRUMENT NO. 2349.
RR. DATED SEPTEMBER 13, 1971, RECORDED SEPTEMBER 21, 1971 IN BOOK T 7214 PAGE
31, OFFICIAL RECORDS, INSTRUMENT NO. 2350.
SS. DATED AUGUST 15, 1972, RECORDED AUGUST 16, 1972 IN BOOK D -5569 PAGE 726,
OFFICIAL RECORDS INSTRUMENT NO. 2643
TT: DATED AUGUST 15, 1972, RECORDED AUGUST 16, 1972, IN BOOK D -5569 PAGE 715,
OFFICIAL RECORDS, INSTRUMENT NO. 2642.
UU. RECORDED FEBRUARY 1, 1974 IN BOOK D668 PAGE 403 OFFICIAL RECORDS.
W. RECORDED JULY 1, 1974 RECORDED IN BOOK D6350 PAGE 122 OFFICIAL RECORDS.
8514095 PAGE 04 277
108
EXHIBIT "D"
GOLF COURSE AND PREMISES IMPROVEMENTS
3.18.14
109
Exhibit D
GOLF COURSE AND PREMISES IMPROVEMENTS
GOLF COURSE IMPROVEMENTS
Lessee and a Task Force appointed by the City Council shall work together and reasonably
cooperate for purposes of preparing a preliminary and conceptual design of the following golf
course and clubhouse improvements to be presented to the City Council for approval consistent
with the Lease provisions. The final design shall be consistent with the conceptual design.
During the course of design and ultimate construction, a "standard of quality" shall be
maintained throughout the newly constructed facility as mutually agreed upon by both parties.
The use of the word "Quality" in this agreement is intended to mean that the building, building
materials and furnishings shall convey design interest and coordination, craftsmanship and use
of durable and visually attractive finishes and materials. With respect to the design of the
improvements to the course itself, "Quality" is intended to mean that, in consultation with an
approved golf course architect, the safety rating of the facility shall be maintained or improved,
that the level of difficulty in playing the course shall be maintained or improved. In both the
case of the buildings and the course improvements, the City' s intent is that they shall be of the
same, or better quality than what currently exist. This exhibit contains photos of the existing
facility as examples of the current level of quality. The facility is intended to be in "turn-key"
condition at the time of completion meaning that the Lessee shall provide a facility that is
furnished and ready for operations.
➢ Construction of new pro shop at approximately 2,500 square feet interior
usable /lease able area. Detailed below are some of the key building
improvements anticipated:
o Facility Generau - Facility shall include a security camera system that
provides surveillance of the interior and exterior of the facility to the
satisfaction of the ESPD.
o Limited Golf Shop Area /Starter Desk - The newly constructed structure
shall contain a segregated area for a pro -shop and starter /check -in desk
as one combined unit. Generally, this facility will be equipped with
sufficient desk space to facilitate placement of a computer, phone and
cash register with desk space providing glass surfaces such that display
shelving is readily accessible by employees and for display of soft goods
as a part of pro -shop operations. This facility will include internet and
phone cabling along with standard electrical outlets installed as provided
for in the latest version of the California Building and Electrical Code.
Shelving will be installed along the walls of the facility in sufficient
footage to provide for display of basic retail items consistent with a golf
pro -shop. Behind the main desk area, a small room accessible by a
standard door shall provide sufficient space for storage of basic retail
goods.
o Restrooms - separate male and female restrooms, fully ADA compliant to
specifications that are current as of construction year. Restrooms shall
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contain the amount of fixture units consistent with city code and capacity
of the facility and be consistent with the existing clubhouse (including
installation of soap dispensers, hand drying devices and trash
enclosures). Restrooms shall be accessed solely from the interior of the
newly constructed facility.
• Management Office - within the described (structure) a separate office
for management operations shall be included. This office shall include a
door and wall safe as required by current permitting policy.
• Caf@ /Bar with seating area -. The facility shall be sufficiently constructed
to include wiring for sound and wi -fi capabilities. Additionally,
televisions of sufficient size (55 ") shall be included and mounted on the
interior and potentially on the exterior patio areas. Exterior television
equipment shall be constructed with exterior placement /waterproof
integrity. Indoor snack bar portion of facility shall consist of sufficient
square footage to maintain and operate a small commercial kitchen with
equipment such as commercial grade reach -in freezer and cooling units, a
three compartment sink, mop closet, griddle (with grill), microwave and
fryer. New facility shall also contain sufficient space for and include an
ice making machine and soft drink dispenser (typically vendor
provided). All equipment shall be included and will be further outlined
through the collaborative efforts with the Taskforce during the design
process. A bar with sufficient beer taps and spacing for refrigeration of
the same number of kegs (minimum 5). Dining area should be able to
accommodate 20 -30 guests and in accordance with established LA
County Health Department guidelines.
• To the exteiit practical, all equipment that is in good .repair at the existing
facility, not past its useful life shall be utilized and installed at the new
facilii .
• Outdoor patio space with seating area - Outdoor space shall include hard
floor surfaces (i.e. concrete or other approved material) and maintain
position directly adjacent to the snack bar entry. Generally this will be at
least 750 square feet with some or all the area covered. The Covered
outdoor area shall be of sufficient size to accommodate adequate seating
for 15 -20. The balance of outdoor dining area (which may not be covered)
shall accommodate seating for at least an additional 20 -35 This area shall
also be equipped with appropriate space heaters, lighting and outdoor
furniture/ seating.
➢ Construction of a practice putting green and practice chipping /bunker area with
the one contiguous putting green surface area being no less than 4,500 square
feet with the intent being that the area shall be the maximum allowable by the
physical constraints of the site. Prior to construction, the existing putting green
surface area shall be given sole and exclusive priority to the golf course putting
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green. Any remainder putting green may be utilized as a putting green within
the TopGolf site.
➢ Screening poles and safety netting will be installed to ensure the safety of
golfers, the public, automobiles, and surrounding properties and rights of way
per golf course architect recommendations
➢ Golf course modifications:
o Upon completion of construction, the golf course with described
improvements shall maintain or increase in degree of difficulty compared
to its current condition. The approved Golf Course Architect shall
provide an assessment of difficulty of the course before and after, Lessee
will maintain and or improve the difficulty of the golf course.
o The overall final design of the golf course after modifications shall
maintain a safety rating consistent or safer than existing conditions. For
the purposes of determining golf course safety, the Minimum Safety
Envelope (MSE) shall be utilized as adopted by the United Stated Golf
Association such that all factors applicable from the Dean vs. McStain
(Colorado) case shall be applied in the calculations of structures and
roadways to any physically altered portions of the course. In the event
that during the design process, more stringent safety measures are
implemented in California, the mutually agreed upon Golf Course
Architect shall determine the best practice for this type of facility.
c The course shall have a minimum of two Par 4 holes. While no specific
definition has been established in yardage for distinguishing a range for a
Par 4 hole, effective length as defined by the USGA in conjunction with
consultation by a golf course architect shall prevail. In general, a Par 4 is
considered to maintain yardage with a range of 230 -270 yards. In
developing yardage, the Lessee and City will maintain an objective
approach while providing flexibility.
o Construction of new hole 3 green and bunkers and tee box.
o Reset both par 4 tee boxes to accommodate new modifications.
o Where possible, the existing tee boxes shall be leveled and lengthened.
Lessee shall make every effort (within the project scope and budget) in
consultation with an approved golf course architect (approved mutually
by the Lessee and City), to expand tee boxes. The intention of this effort is
to increase yardage from tee boxes to holes to achieve the minimum
USGA standard of 1,500 (or current minimum) yardage for a nine hole
course to establish a Course Rating and Course Slope. In no instance shall
the course modifications result in the total yardage of the course to be
shortened or lessened from its current and existing state of play. The total
current yardage of play for the existing nine -hole course is approximately
1,340 yards from the white tee line (Men's). The City will be responsible
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for any costs, not including design or construction costs, for certifying the
Course Rating and Slope per USGA guidelines.
o Lessee to add bunkers and/or sand traps to the north side of hole
number 8 with the intention of increasing speed of play. Placement,
sizing and number of bunkers and/or sand traps will be based upon
approved golf course architect recommendations.
o When possible, Lessee shall utilize existing and available poles and
netting not otherwise repurposed by TopGolf project.
o Hole three will be redesigned in such a fashion to maintain a minimum
Par 3 and play over the existing northern body of water feature.
PREMISES IMPROVEMENTS
• Prior to disposal of the existing Pro Shop and Restaurant roof surfaces, further
direction shall be given to the disposal or repurposing of the copper roof.
Direction may come from the assigned Taskforce or directly from the City
Council in a timely manner.
• Construction of the Top Golf Driving Range and Facility approximately 40,000 SF
of indoor area and 20,000 SF of outdoor hitting bays which shall be substantially
similar to the Top Golf Prototype Facility defined in the Lease with regard to
construction materials, quality, type and size and facilities. Attached are pictures
of the Prototype Facility.
• Replacement/ relocation of the existing net poles with the Top Golf required
poles, which will adhere to all building and safety codes, SCE safety standards
and other applicable safety standards. Any/ all poles not specifically used in the
construction of the TopGolf facility shall be repurposed, to the extent possible,
for the golf course modifications.
• Expansion of the existing parking which shall extend over the area where hole
number one is currently located on the golf course and provide adequate parking
per city code. During the design process, the City shall determine the number
and location of parking spaces that will be reserved (during the hours of
operation of the Lakes) for patrons of the Lakes golf course, consistent with
Section 5.4 of this Lease and subject to the terms and conditions of the approved
Required Project Entitlements (as defined in the Lease). Should parking conflicts
arise after the commencement of joint use of the parking facility, the City and the
Lessee shall mutually cooperate and work together to implement parking control
measures to further reserve parking spaces by use of patrons of the Lakes.
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EXHIBIT "E"
PERMITTED EXCEPTIONS
[TO BE FINALIZED AND ATTACHED WITHIN 60 DAYS FROM THE
COMMENCEMENT DATE]
3.lS.14
117
EXHIBIT "F"
FORM OF MEMORANDUM OF LEASE
THIS EXHIBIT TO BE PREPARED PRIOR TO EXECUTION OR CONDITION
PRECEDENT TO BE ADDED REQUIRING THAT IT BE PREPARED WITHIN NINETY
DAYS AND ATTACHED HERETO.
3.18.14
118
EXHIBIT "G"
PROTOTYPE FACILITY
3.18.14
119
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EXHIBIT "H"
FORM OF GUARANTIES
3.18.14
125
CONSTRUCTION AND OPERATING PERIOD GUARANTEE AGREEMENT
THIS CONSTRUCTION AND OPERATING PERIOD GUARANTEE AGREEMENT
(this "Guaranty ") is executed and delivered as of the 2014 by 30 West Deleted:3
Pershing, LLC, a Missouri limited liability company ( "30 West Pershing" or "Guarantor "),
whose address is 909 Walnut, Suite 200, Kansas City, MO 64106 for the benefit of the City of
El Segundo (referred to herein as "City" or "Lessor ").
A. Pursuant to that certain Due Diligence and Ground Lease Agreement entered into
on or about 201- (the "Contract ") by and between ES Centercal, Deleted: 3
LLC, a Delaware limited liability company (referred to herein as the "Company" or "Lessee ")
and the City, and subject to the terms and conditions set forth in the Contract, as may be
amended in writing from time to time, the Company has agreed (i) to complete, or cause to be
completed, certain improvements to the Golf Course and the Premises as described in the
Contract, or return the Premises to the same or better condition as it existed prior to the
Commencement Date and to (ii) lease the Premises, subject to the Conditions Precedent set forth
in the Contract, and operate a driving range and other facilities on the Premises and pay Rent to
City as well as perform other obligations under the Contract.
B. 30 West Pershing is contemplated as being a sublessee of the Company and it is
one of the Conditions Precedent under the Contract that 30 West Pershing become the sublessee
under a Ground Sublease with Company covering the Premises (the "Sublease ").
C. As a condition precedent to the City's agreeing to enter in the Contract, 30 West
Pershing is required to deliver two fully and properly executed originals of this Guaranty to the
City.
D. Capitalized Terms used herein and not otherwise defined shall have the respective
meanings given such terms in the Contract.
NOW THEREFORE, in consideration of the Contract, and for other good and valuable
considerations the receipt and sufficiency of which are hereby irrevocably acknowledged by the
Guarantor, the Guarantor agrees as follows:
THE GUARANTY.
(a) Upon satisfaction of all Conditions Precedent in the Contract and the
occurrence of the Premises Turnover Date in the Contract, Guarantor hereby guarantees
all of the obligations of the Company (or any assignee of Company) under the Contract
with regard to (i) the completion of the Premises Improvements or the return of the
Premises to the same or better condition as the Premises existed prior to the
Commencement Date ( "Premises Construction Obligations ") and full payment of all costs
and expenses of every kind whatsoever associated with such completion of the Premises
Construction Obligations including all loss, cost, damage, liability, claim or expense the
City may suffer by reason of mechanic's liens or similar claims or by reason of the
Company's or Guarantor's failure to complete the Premises Construction Obligations
{32215 / 66600; 497504.5 )
126
( "Premises Project Costs "); (ii) payment of Rent in accordance with the Contract through
either (a) the date the Premises Improvements are completed and the Premises are open to
the public in accordance with the Contract or (b) the Premises and Golf Course are
returned to the same or better condition as the such existed as of the Premises Turnover
Date and possession of the Premises and has been delivered to the City in accordance
with the Contract; (iii) all costs, expenses, damages, losses and other amount for which
the City may become liable as a consequence of or in connection with the Company's or
Guarantor's completion of or failure to complete the Premises Construction Obligations
and/or, when so obligated, to cause the Premises to be are returned to the City to the same
or better condition as the Premises existed as of the Premises Turnover Date pursuant to
the terms and conditions of the Contract, and (v) the operation of the Premises by Top
Golf or other permitted Operator under the Contract for the Operating Period as defined
in the Contract; and (iv) if the City exercises its right under this Guaranty to take over
construction of the Premises Improvements, to reimburse City for all costs and expenses
incurred by City in taking over construction of the Premises Improvements and
completing construction of the Premises Improvements.
(b) Notwithstanding any other provision in the Contract or this Guaranty,
recognizing that the Company, 30 West Pershing, and Centercal Guarantor and Top Golf
all have various contractual obligations that they have entered into by and between
themselves to which the City is not a party and that the City has limited rights or no rights
to enforce, in the event that (i) 30 West Pershing does enter into the Sublease, (ii)
executes and delivers this Guaranty to the Lessor, and (iii) the Company delivers to the
Lessor the Due Diligence Acceptance Notice as provided for in the Contract, then unless
30 West Pershing within five (5) business days of issuance of the Notice of Acceptance
provides written notice to the Lessor that it has withdrawn this Guaranty, Guarantor is
deemed to have waived any rights it might have under the Contract or this Guaranty, or in
law or equity, that the Guarantor's obligations under this Guaranty have in any way been
altered or diminished. Receipt of the Due Diligence Acceptance Notice by Lessor shall be
deemed notice to Lessor that 30 West Pershing and Company have entered into the
Sublease.
(c) Guarantor covenants and agrees to cooperate with the Company and/or
Centercal Guarantor to coordinate construction scheduling, access and all other matters
related to the performance by Guarantor of its Premises Construction Obligations and
payment of the Premises Project Costs and performance of its other obligations under this
Guaranty Guarantor waives the right to claim any defense to performance of any of its
obligations under this Guaranty based on a claim that the Company has failed to perform
under the Contract or any other agreement nor may Guarantor claim a failure to perform
by the Company under the Contract or any other agreement as a defense to a default by
Guarantor under this Guaranty. Guarantor waives the right to claim any defense to
performance of any of its obligations under this Guaranty based on a claim that Centercal
Centercal Guarantor has failed to perform under that certain Construction Guarantee
Agreement from the Centercal Guarantor for the benefit of the City or any other
agreement nor may Guarantor claim a default by the Centercal Guarantor under its
Construction Guarantee Agreement in favor of the City or any other agreement as a
defense to a default by Guarantor under the Guaranty. Guarantor covenants and agrees
{32215 / 66600; 497504.5 }
127
that no assignment of the Company's interest as Lessee under the Contract or any other
assignment or sublease permitted by the Contract shall release Guarantor from any of its
obligations hereunder. Guarantor covenants and agrees that no assignment of its interest
as sublessee under the Sublease shall release Guarantor from any of its obligations
hereunder.
2. PREMISES IMPROVEMENTS BY GUARANTOR AND THE CITY'S OPTION
TO COMPLETE THE PROJECT.
At the City's election as to the timing of making a demand (following the expiration of
any applicable notice and cure period), if the Premises Improvements have not been completed
within ten (10) months of the Premises Turnover Date (subject to force majeure as defined in
Section 30 of the Contract or delays caused by the City), or if there are material delays with
construction of the Premises Improvements such that the City has a good faith, reasonable belief
that the Premises Improvements will not be completed within such period except for delays
caused by force majeure as defined in Section 30 of the Contract or except for delays caused by
the City, then the City shall make written demand on Guarantor to so complete the same and to
honor all of the obligations set forth in Section 1 of this Guaranty. If the Guarantor, within ten
(10) days of receiving the following written demand by City:
"THIS NOTICE OF DEFAULT IS BEING SENT PURSUANT TO SECTION 3
OF THE GUARANTY, AND IF GUARANTOR FAILS TO CURE SUCH
DEFAULT WITHIN TEN (10) DAYS OF ITS RECEIPT OF THIS NOTICE,
OR IF GUARANTOR HAS NOT COMMENCED SUCH CURE WITHIN
SUCH TEN (10) DAY PERIOD AND IS DILIGENTLY PROSECUTING THE
SAME TO COMPLETION, THEN CITY MAY EXERCISE SELF HELP
RIGHTS UNDER SECTION 3 OF THIS GUARANTY."
fails diligently to commence and /or continue performance thereof to completion as required
under the Contract, the City in its sole and absolute discretion, at any time thereafter, shall have
the right to complete the Premises Improvements or return the Premises to the same or better
condition as such existed prior to the Premises Turnover Date, either before, during or after the
pursuing of any other remedy of the City against the Company and /or the Guarantor, and expend
such sums as the City in its sole and absolute discretion deems proper in order to complete the
Premises Improvements pursuant to the requirements of the Contract.
In such event, the Guarantor shall fully and promptly reimburse and repay the City for all
costs and expenses incurred by the City and such shall not relieve Guarantor from performing
any or all of its additional obligations set forth in Section 1 of this Guaranty, including the
payment of Rent. Any amounts payable by the Guarantor shall be payable on demand, with such
amounts bearing interest from and after the date incurred by the City until paid as provided in
Section 3 hereof.
INTEREST ON UNPERFORMED OBLIGATIONS.
{32215 / 66600; 497504.5 1
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The Guarantor agrees to pay to the City interest at the interest rate of 5% per annum on
the amounts advanced by the City pursuant to Section 2. Such interest shall be payable for the
period commencing with each such advance by the City.
4. REPRESENTATIONS AND WARRANTIES.
The Guarantor makes the following representations and warranties to the City to the best
of Guarantor's knowledge and the Guarantor acknowledges that the City intends to enter into the
Contract in reliance thereon:
(a) The Guarantor is not in default under any agreement to which it is a party,
the effect of which will materially impair performance by the Guarantor of its obligations
pursuant to and as contemplated by the terms of this Guaranty. Neither the execution and
delivery of this Guaranty nor compliance with the terms and provisions hereof (i) will
violate any presently existing provision of law or any presently existing regulation, order,
writ, injunction or decree of any court or governmental department, commission, board,
bureau, agency or instrumentality applicable to Guarantor; or (ii) will conflict or will be
inconsistent with, or will result in any breach of, any of the terms, covenants, conditions
or provisions of, or constitute a default under (with an effect that will materially impair
performance by the Guarantor of its obligations pursuant to and as contemplated by the
terms of this Guaranty) any indenture, mortgage, deed of trust, instrument, document,
agreement or contract of any kind that creates, represents, evidences or provides for any
lien, charge or encumbrance upon any of the property or assets of the Guarantor, or any
other indenture, mortgage, deed of trust, instrument, document, agreement or contract of
any kind to which the Guarantor is a party or by which any of the property of the
Guarantor may be subject to, in the event of any such conflict, the required consent or
waiver of the other party or parties thereto has been validly granted, is in full force and
effect and is valid and sufficient therefor;
(b) There are no actions, suits or proceedings pending or threatened against
the Guarantor before any court or any governmental, administrative, regulatory,
adjudicatory or arbitrational body or agency of any kind that will (if adversely
determined) materially adversely affect performance by such Guarantor of its obligations
pursuant to and as contemplated by the terms and provisions of this Guaranty;
(c) 30 West Pershing is a duly organized, validly existing limited liability
company under the laws of the State of Missouri and is in good standing in the States of
Missouri and California, and has requisite authority to execute, deliver and perform its
obligations under this Guaranty pursuant to the terms and provisions of this Guaranty and
has executed and delivered this Guaranty pursuant to proper authority duly granted; 30
West Pershing is a wholly owned subsidiary of EPR Properties, a Maryland real estate
trust;
(d) The Guarantor is deriving a material financial benefit from the entering
into of the Contract by the Company, and the City has given sufficient consideration to
the Guarantor by entering into the Contract; and
(32215 / 66600; 497504.5 )
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(e) Each obligation under this Guaranty is legal, valid, binding and
enforceable against the Guarantor in accordance with its terms, subject at all times to
matters of bankruptcy and insolvency and other laws affecting the enforcement of
creditors' rights.
COVENANTS.
The Guarantor agrees and covenants that:
(a) No payment or performance by the Guarantor under any provision of this
Guaranty shall entitle the Guarantor, by subrogation to the rights of the City or otherwise,
to any payment from or rights in any applicable bonds, title insurance certifications,
commitments or indemnities or other security held by or for the benefit of the City in
connection with the Premises Improvements, until all of the Premises Construction
Obligations have been discharged in full; provided nothing herein shall constitute a
waiver of the right of subrogation of the Guarantor after discharge in full of such
obligations;
(b) The liability of the Guarantor shall in no way be affected, diminished or
released by any of the following: (i) any extension of time or forbearance that may be
granted by the City to the Company or to the Guarantor; (ii) any waiver by the City under
the Contract; (iii) any change or modification in the Contract (subject to the provisions of
(c) below); (iv) the acceptance by the City of additional security or any increase,
substitution or changes therein; (v) the release by the City of any security or any
withdrawal thereof or decrease therein; (vi) the failure or election by the City to pursue or
not to pursue any remedies it may have against the Guarantor or against the Company or
any of the general partners of the Company under the Contract; (vii) any failure by the
Company to provide Guarantor or any other party written or other notice as may be
required under the Contract; or (viii) the exercise of any extension of time or other option
for performance or assignment of obligations specifically set forth in the Contract.
(c) The City may at any time enter into agreements with the Company, or its
successor or assigns, to amend and modify the Contract, but such amendments or
modifications shall not be binding on Guarantor without Guarantor's consent thereto if
such materially affect to Guarantor's detriment its obligations or liabilities under this
Guaranty;
(d) Nothing contained herein or otherwise shall prevent the City from
pursuing concurrently or successively all rights and remedies available to the City
pursuant to any document or agreement or in law or in equity and against any persons,
firms or entities whatsoever (and particularly, but not by way of limitation, the City may
exercise any other rights available to it under the Contract or any other agreement or
security instrument), and the exercise of any of its rights or the completion of any of its
remedies shall not constitute a discharge of the Guarantor's obligations hereunder, it
being the purpose and intent of the Guarantor that, subject to the terms and provisions of
this Guaranty, its obligations hereunder shall be absolute, independent and unconditional
under any and all circumstances whatsoever;
{32215 / 66600; 497504.5 1
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(e) The liability of the Guarantor hereunder or any remedy for the
enforcement thereof shall in no way be affected by (i) the release or discharge of the
Company, or any general partner of the Company, in any creditors', receivership,
bankruptcy or other proceedings, (ii) the impairment, limitation or modification of the
liabilities of the Company or any general partner of the Company under the Contract or
of any remedy for the enforcement thereof, or of the estate of the Company or any such
general partner in bankruptcy, resulting from the operation of any present or future
provision of the federal bankruptcy act or other statute or from the decision in any court,
(iii) the rejection or disaffirmance of the Contract in any such proceedings, (iv) cessation
from any cause whatsoever of the liability of the Company or any such general partner to
the City, or (v) any defense, current or future, of the Guarantor to any action, suit or
proceeding at law or otherwise, that may be instituted on this Guaranty other than one
based upon nonfulfillment by the City of a material obligation to be performed by the
City pursuant to this Guaranty or the Contract.
WAIVERS.
The Guarantor hereby expressly irrevocably waives:
(a) Notice of acceptance of this Guaranty by the City, and any and all notice
and demands of every kind that may be required to be given by any statute, rule or law
except any specifically required by this Guaranty or the Lessor under the Contract;
(b) Any defense arising by reason of any incapacity, lack of authority, death
or disability of any other person or entity (except the City) or from the failure of the City
to file or enforce a claim against any person or entity in any administrative, bankruptcy or
other proceeding;
(c) Any obligation the City might otherwise have to disclose to the Guarantor
any facts the City now or hereafter may know or have reasonably available to it regarding
the Company or its financial condition, whether or not the City has a reasonable
opportunity to communicate such facts or has reason to believe that any such facts are
unknown to the Guarantor or materially increase the risk to the Guarantor beyond the risk
the Guarantor intended to assume hereunder. Guarantor shall be fully responsible for
keeping informed of the financial condition of the Company and of all other
circumstances bearing upon the risks of nonpayment or nonperformance of the Company
under the Contract;
(d) Any defense based on an election of remedies by the City, whether or not
such election may affect in any way the recourse, subrogation or other rights of the
Guarantor against the Company or any of its partners in connection with the Premises
Construction Obligations;
(e) All diligence in collection or protection of or realization upon or
enforcement of the Premises Construction Obligations, any other obligation hereunder, or
any security for or guaranty of any of the foregoing, and any and all formalities that
otherwise might be legally required to charge the Guarantor with liability; and
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(f) Any lien, security interest or charge on the Golf Course Property, the
equipment and personal property located thereon, all rights therein and thereto, the
revenue and income to be realized therefrom, or on any proceeds or products of any
thereof, which the Guarantor may have or obtain as a result of the City's enforcement of
this Guaranty.
(g) With respect to those matters set forth in Sections 1(b) and (c),5, 6, 7
and 9 of this Guaranty, Guarantor waives any and all laws or regulations (including
without limitation California Civil Code Sections 2787 and 2855, and Code of Civil
Procedure Sections 580a, 580b, 580d and /or 726, regardless of whether such are
applicable or not to this Guaranty) that would (i) in any respect or manner diminish or
eliminate the obligations of the Guarantor hereunder regardless of whether the terms of
such laws or regulations have been specifically referenced herein or the substance of such
laws or regulations have been set forth herein or addressed by this Guaranty; or (ii)
provide some procedural defense to Guarantor with regard to any action or proceeding
the City may institute to enforce its rights under this Guaranty.
7. EFFECT OF THE CITY'S DELAY OR ACTION.
No delay on the part of the City in the exercise of any right or remedy under this
Guaranty or the Contract shall operate as a waiver thereof, and no single or partial exercise by
the City of any right or remedy shall preclude other or further exercise thereof or the exercise of
any other right or remedy. No action by the City permitted hereunder shall in any way affect or
impair the rights of the City and the obligations of the Guarantor under this Guaranty, provided,
however, that the Guarantor shall be entitled to enforce, and the City shall be bound by, the
obligations of the City under the Contract so long as the Guarantor shall perform its obligations,
or cause its obligations to be performed, hereunder.
CONTINUING GUARANTY.
This Guaranty shall in all respects be a continuing, absolute, irrevocable and
unconditional guaranty, and shall remain in full force and effect and shall be binding upon the
heirs, personal representatives, successors and assigns of the Guarantor, and shall inure to the
benefit of the respective successors and assigns of the City. All references herein to the
Company, its general partners or the Guarantor shall be deemed to include the respective
successors and assigns of same, as the case may be. Any proposed assignment of the Guarantor's
obligations hereunder to a substitute guarantor shall be subject to the City's approval which may
be withheld in the City's sole and absolute discretion.
CERTAIN PERMITTED ACTIONS OF THE CITY.
The City may from time to time, in its sole discretion and without notice to the
Guarantor, take any of the following actions without in any way affecting the obligations of the
Guarantor: (a) obtain the primary or secondary obligation of any additional obligor or obligors
with respect to any of the Premises Construction Obligations; (b) enforce this Guaranty against
the Guarantor, whether or not the City shall have (1) proceeded against the Company or any of
the other guarantors or sureties or any other party primarily or secondarily obligated or (2)
{32215 / 66600; 497504.5 )
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resorted to or exhausted any other remedy or any other security or collateral; and (c) enforce any
other rights under the Contract.
10. TIME OF ESSENCE.
Time is of the essence of this Guaranty.
11. NO MODIFICATION WITHOUT WRITING.
This Guaranty may not be modified, amended, revised, revoked, terminated, changed or
varied in any way whatsoever except by the express terms of a writing signed by the parties
hereto. This Guaranty, and the Company's obligations set for the in Contract represent the entire
understanding between the City and the Guarantor and no other prior written or oral
understanding shall be of any force or effect.
12. NOTICES.
All notices required or permitted pursuant to this Guaranty shall be in writing and shall
be deemed given when (a) personally delivered to an officer or other authorized representative
of the party to be notified or (b) after deposit in the United States mail as certified mail, postage
prepaid, return receipt requested or (c) sent by reputable overnight courier and addressed as
follows:
(or to such other address as a party may specify by notice given to the other party pursuant to this
provision):
If to the Guarantor:
30 West Pershing, LLC
909 Walnut, Suite 200
Kansas City, MO 64106
Attention: General Counsel
White Goss Bowers March Schulte & Weisenfels,
a Professional Corporation
4510 Belleview Avenue, Suite 300
Kansas City, Missouri 64111 -3538
Attention: Fred W. Crouch, Esq.
fax: (816) 753 -9201
Peke Lord LLP
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
Attn: Donald A. Hammett, Jr.
Fax: (214) 756 -8582
(32215 / 66600; 497504.5 )
L Formatted: French (France)
Formatted: French (France)
133
If to the City:
TopGolf El Segundo USA, LLC.
Attn: Randall P. Starr, Vice President Development
9400 N. Central Expressway, Ste. 1616
Dallas, Texas 75231
Fax: (630) 354 -6801
City of El Segundo
Attn: City Clerk
350 Main Street
City of El Segundo, CA 90245
Notwithstanding anything in this section to the contrary, any notice sent or mailed to the
last designated address of any person or party to which a notice may be or is required to be
delivered pursuant to the Guaranty, shall not be deemed ineffective if actual delivery cannot be
made due to a change of address of the person or party to which the notice is directed or if such
notice is rejected by such party.
13. GOVERNING LAW..
This Guaranty shall be construed in accordance with and governed by the laws of the
State of California and any suit, action or other legal proceeding relating to this Guaranty may be
brought only in the Los Angeles Superior Court. The Guarantor irrevocably consents to the
service of process of the aforementioned court in any such action or proceeding by the mailing of
copies thereof by certified or registered mail, postage prepaid, return receipt requested to the
Guarantor at its address set forth in SECTION 12 hereof, as such address may be changed from
time to time in accordance with such SECTION 12. Nothing herein shall affect the right of the
City to serve process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Guarantor in any other jurisdiction in which the Guarantor may be
subject to suit.
14. INDEPENDENT OBLIGATIONS.
The obligations of the Guarantor hereunder are independent of the obligations of the
Company. In the event of any default hereunder, the City may institute a separate action against
the Guarantor with or without joining or instituting a separate action against the Company.
15. CUMULATIVE.
All rights and remedies of the City and all obligations of the Guarantor under this Guaranty area
cumulative. In addition, the City shall have all rights and remedies available to it at law or equity
for the enforcement of this Guaranty. To the extent there are obligations that explicitly apply to
Guarantor and are forth in the Contract that are not contained in this Guaranty, Guarantor
covenants and agrees to honor such obligations as part of this Guaranty. If there are provisions
ul the Contract-that expressly apply to Guarantor that are not contained in this Guaranis
QUarantor covenants and agrees to honor such provisions as Marl of this Guaranty.. [6.
SEVERABILITY.
{32215 / 66600; 497504 5 1
Formatted: No bullets or
numbering
Deleted: To the extent there are
inconsistencies between the Contract and
this Guaranty, the provision that provides
the greatest level of protection to the City
shall govern¶
134
Wherever possible each provision of this Guaranty shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision or the remaining
provisions of this Guaranty.
I TLEGAL TENDER OF UNITED STATES.
All payments hereunder shall be made in coin or currency which at the time of payment
is legal tender in the United States of America for public and private debts.
18. NO MERGER OR ALTERATION
In the event the Guarantor acquire some real or personal property interest through the
Contract or otherwise with regard to the Premises, such shall not alter or impair the City's rights
or the Guarantor's obligations under this Guaranty.
IN WITNESS HEREOF, the Guarantor has duly executed this Guaranty as of date first
written above.
(32215 / 66600; 497504.5 )
30 West Pershing, LLC,
a Missouri limited liability company
By :._ .......
Name:
Its:
City of El Segundo
Bill Fisher, Mayor
Approved As to Form:
Mark D. Hensley, City Attorney
Attest:
10
Formatted: Indent: Left: 0.25', No
bullets or numbering
Formatted: Indent: Left: 0.25', No
bullets or numbering
135
Tracy Weaver, City Clerk
{32215/66600;4975045 1
136
CONSTRUCTION GUARANTEE AGREEMENT
THIS CONSTRUCTION GUARANTEE AGREEMENT (this "Guaranty") is executed
and delivered as of the 2014, by CenterCal, LLC, a Delaware limited liability LDeleted, 3
company ( "CenterCal" or "Guarantor "), whose address is l 600 East Franklin Street, El Segundo,
CA 90245 for the benefit of the City of El Segundo (referred to herein as "City" or "Lessor ").
A. Pursuant to that certain Due Diligence and Ground Lease Agreement entered into
on or about 2014 (the "Contract ") by and between ES Centercal, Deleted:3
LLC, a Delaware limited liability company (referred to herein as the "Company" or "Lessee ")
and the City, and subject to the terms and conditions set forth in the Contract, as may be
amended in writing from time to time, the Company has agreed (i) to complete, or cause to be
completed, certain improvements to the Golf Course and the Premises as described in the
Contract, or return the Premises to the same or better condition as it existed prior to the
Commencement Date and to (ii) lease the Premises, subject to the Conditions Precedent set forth
in the Contract, and operate a driving range and other facilities on the Premises and pay Rent to
City as well as perform other obligations under the Contract.
B. As a condition precedent to the City's agreeing to enter in the Contract, CenterCal
is required to deliver two fully and properly executed originals of this Guaranty to the City.
C. Capitalized Terms used herein and not otherwise defined shall have the respective
meanings given such terms in the Contract.
NOW THEREFORE, in consideration of the Contract, and for other good and valuable
considerations the receipt and sufficiency of which are hereby irrevocably acknowledged by the
Guarantor, the Guarantor agrees as follows:
THE GUARANTY.
(a) Upon satisfaction of all Conditions Precedent in the Contract and the
occurrence of the Premises Turnover Date in the Contract, Guarantor hereby guarantees
all of the obligations of the Company (or any assignee of Company) under the Contract
with regard to (i) the completion of the Golf Course Improvements or the return of the
Premises to the same or better condition as the Premises existed prior to the
Commencement Date ( "Golf Course Construction Obligations ") and full payment of all
costs and expenses of every kind whatsoever associated with such completion of the Golf
Course Construction Obligations including all loss, cost, damage, liability, claim or
expense the City may suffer by reason of mechanic's liens or similar claims or by reason
of the Company's or Guarantor's failure to complete the Golf Course Construction
Obligations ( "Golf Course Project Costs "); (ii) all costs, expenses, damages, losses and
other amount for which the City may become liable as a consequence of or in connection
with the Company's or Guarantor's completion of or failure to complete the Golf Course
Construction Obligations and /or, when so obligated, to cause the Premises to be are
returned to the City to the same or better condition as the Premises existed as of the
Premises Turnover Date pursuant to the terms and conditions of the Contract; and (iii) if
{32215 / 66600; 497504.5 }
137
the City exercises its right under this Guaranty to take over construction of the Golf
Course Improvements, to reimburse City for all costs and expenses incurred by City in
taking over construction of the Golf Course Improvements and completing construction
of the Golf Course Improvements.
(b) Notwithstanding any other provision in the Contract or this Guaranty,
recognizing that the Company, 30 West Pershing, and Centercal and Top Golf all have
various contractual obligations that they have entered into by and between themselves to
which the City is not a party and that the City has limited rights or no rights to enforce, in
the event that (i) 30 West Pershing does enter into the Sublease, (ii) executes and delivers
this Guaranty to the Lessor, and (iii) the Company delivers to the Lessor the Due
Diligence Acceptance Notice as provided for in the Contract, then unless CenterCal
within five (5) business days of issuance of the Notice of Acceptance provides written
notice to the Lessor that it has withdrawn this Guaranty, Guarantor is deemed to have
waived any rights it might have under the Contract or this Guaranty, or in law or equity,
that the Guarantor's obligations under this Guaranty have in any way been altered or
diminished. Receipt of the Due Diligence Acceptance Notice by Lessor shall be deemed
notice to Lessor that 30 West Pershing and Company have entered into the Sublease.
(c) Guarantor covenants and agrees to cooperate with the Company and /or
CenterCal Guarantor to coordinate construction scheduling, access and all other matters
related to the performance by Guarantor of its Golf Course Construction Obligations and
payment of the Golf Course Project Costs and performance of its other obligations under
this Guaranty. Guarantor waives the right to claim any defense to performance of any
of its obligations under this Guaranty based on a claim that the Company has failed to
perform under the Contract or any other agreement nor may Guarantor claim a failure to
perform by the Company under the Contract or any other agreement as a defense to a
default by Guarantor under this Guaranty. Guarantor waives the right to claim any
defense to performance of any of its obligations under this Guaranty based on a claim
that 30 West Pershing has failed to perform under that certain Construction and
Operating Period Guarantee Agreement from 30 West Pershing for the benefit of the City
or any other agreement nor may Guarantor claim a default by 30 West Pershing under its
Construction and Operating Period Guarantee Agreement in favor of the City or any
other agreement as a defense to a default by Guarantor under the Guaranty. Guarantor
covenants and agrees that no assignment of the Company's interest as Lessee under the
Contract or any other assignment or sublease permitted by the Contract shall release
Guarantor from any of its obligations hereunder. Guarantor covenants and agrees that no
assignment of its interest as sublessee under the Sublease shall release Guarantor from
any of its obligations hereunder.
GOLF COURSE IMPROVEMENTS BY GUARANTOR AND THE CITY'S
OPTION TO COMPLETE THE PROJECT.
At the City's election as to the timing of making a demand (following the expiration of
any applicable notice and cure period), if the Golf Course Improvements have not been
completed within ten (10) months of the Premises Turnover Date (subject to force majeure as
defined in Section 30 of the Contract or delays caused by the City), or if there are material delays
{ 32215 / 66600; 497504 5 1
138
with construction of the Golf Course Improvements such that the City has a good faith,
reasonable belief that the Golf Course Improvements will not be completed within such period
except for delays caused by force majeure as defined in Section 30 of the Contract or except for
delays caused by the City, then the City shall make written demand on Guarantor to so complete
the same and to honor all of the obligations set forth in Section 1 of this Guaranty. If the
Guarantor, within ten (10) days of receiving the following written demand by City:
"THIS NOTICE OF DEFAULT IS BEING SENT PURSUANT TO SECTION 3
OF THE GUARANTY, AND IF GUARANTOR FAILS TO CURE SUCH
DEFAULT WITHIN TEN (10) DAYS OF ITS RECEIPT OF THIS NOTICE,
OR IF GUARANTOR HAS NOT COMMENCED SUCH CURE WITHIN
SUCH TEN (10) DAY PERIOD AND IS DILIGENTLY PROSECUTING THE
SAME TO COMPLETION, THEN CITY MAY EXERCISE SELF HELP
RIGHTS UNDER SECTION 3 OF THIS GUARANTY."
fails diligently to commence and /or continue performance thereof to completion as required
under the Contract, the City in its sole and absolute discretion, at any time thereafter, shall have
the right to complete the Golf Course Improvements or return the Premises to the same or better
condition as such existed prior to the Premises Turnover Date, either before, during or after the
pursuing of any other remedy of the City against the Company and /or the Guarantor, and expend
such sums as the City in its sole and absolute discretion deems proper in order to complete the
Golf Course Improvements pursuant to the requirements of the Contract.
In such event, the Guarantor shall fully and promptly reimburse and repay the City for all
costs and expenses incurred by the City and such shall not relieve- Guarantor from performing
any or all of its additional obligations set forth in Section 1 of this Guaranty, . Any amounts
payable by the Guarantor shall be payable on demand, with such amounts bearing interest from
and after the date incurred by the City until paid as provided in Section 3 hereof.
INTEREST ON UNPERFORMED OBLIGATIONS.
The Guarantor agrees to pay to the City interest at the interest rate of 5% per annum on
the amounts advanced by the City pursuant to Section 2. Such interest shall be payable for the
period commencing with each such advance by the City.
4. REPRESENTATIONS AND WARRANTIES.
The Guarantor makes the following representations and warranties to the City to the best
of Guarantor's knowledge and the Guarantor acknowledges that the City intends to enter into the
Contract in reliance thereon:
(a) The Guarantor is not in default under any agreement to which it is a party,
the effect of which will materially impair performance by the Guarantor of its obligations
pursuant to and as contemplated by the terms of this Guaranty. Neither the execution and
delivery of this Guaranty nor compliance with the terms and provisions hereof (i) will
violate any presently existing provision of law or any presently existing regulation, order,
writ, injunction or decree of any court or governmental department, commission, board,
bureau, agency or instrumentality applicable to Guarantor; or (ii) will conflict or will be
(32215 / 66600; 497504.5 )
139
inconsistent with, or will result in any breach of, any of the terms, covenants, conditions
or provisions of, or constitute a default under (with an effect that will materially impair
performance by the Guarantor of its obligations pursuant to and as contemplated by the
terms of this Guaranty) any indenture, mortgage, deed of trust, instrument, document,
agreement or contract of any kind that creates, represents, evidences or provides for any
lien, charge or encumbrance upon any of the property or assets of the Guarantor, or any
other indenture, mortgage, deed of trust, instrument, document, agreement or contract of
any kind to which the Guarantor is a party or by which any of the property of the
Guarantor may be subject to, in the event of any such conflict, the required consent or
waiver of the other party or parties thereto has been validly granted, is in full force and
effect and is valid and sufficient therefor;
(b) There are no actions, suits or proceedings pending or threatened against
the Guarantor before any court or any governmental, administrative, regulatory,
adjudicatory or arbitrational body or agency of any kind that will (if adversely
determined) materially adversely affect performance by such Guarantor of its obligations
pursuant to and as contemplated by the terms and provisions of this Guaranty;
(c) CenterCal is a duly organized, validly existing limited liability company
under the laws of the State of Delaware and is in good standing in the State of California,
and has requisite authority to execute, deliver and perform its obligations under this
Guaranty pursuant to the terms and provisions of this Guaranty and has executed and
delivered this Guaranty pursuant to proper authority duly granted;;
(d) The Guarantor is deriving a material financial benefit from the entering
into of the Contract by the Company, and the City has given sufficient consideration to
the Guarantor by entering into the Contract; and
(e) Each obligation under this Guaranty is legal, valid, binding and
enforceable against the Guarantor in accordance with its terms, subject at all times to
matters of bankruptcy and insolvency and other laws affecting the enforcement of
creditors' rights.
COVENANTS.
The Guarantor agrees and covenants that:
(a) No payment or performance by the Guarantor under any provision of this
Guaranty shall entitle the Guarantor, by subrogation to the rights of the City or otherwise,
to any payment from or rights in any applicable bonds, title insurance certifications,
commitments or indemnities or other security held by or for the benefit of the City in
connection with the Golf Course Improvements, until all of the Golf Course Construction
Obligations have been discharged in full; provided nothing herein shall constitute a
waiver of the right of subrogation of the Guarantor after discharge in full of such
obligations;
(b) The liability of the Guarantor shall in no way be affected, diminished or
released by any of the following: (i) any extension of time or forbearance that may be
(32215 / 66600; 497504.5 }
140
granted by the City to the Company or to the Guarantor; (ii) any waiver by the City under
the Contract; (iii) any change or modification in the Contract (subject to the provisions of
(c) below); (iv) the acceptance by the City of additional security or any increase,
substitution or changes therein; (v) the release by the City of any security or any
withdrawal thereof or decrease therein; (vi) the failure or election by the City to pursue or
not to pursue any remedies it may have against the Guarantor or against the Company or
any of the general partners of the Company under the Contract; (vii) any failure by the
Company to provide Guarantor or any other party written or other notice as may be
required under the Contract; or (viii) the exercise of any extension of time or other option
for performance or assignment of obligations specifically set forth in the Contract.
(c) The City may at any time enter into agreements with the Company, or its
successor or assigns, to amend and modify the Contract, but such amendments or
modifications shall not be binding on Guarantor without Guarantor's consent thereto if
such materially affect to Guarantor's detriment its obligations or liabilities under this
Guaranty;
(d) Nothing contained herein or otherwise shall prevent the City from
pursuing concurrently or successively all rights and remedies available to the City
pursuant to any document or agreement or in law or in equity and against any persons,
firms or entities whatsoever (and particularly, but not by way of limitation, the City may
exercise any other rights available to it under the Contract or any other agreement or
security instrument), and the exercise of any of its rights or the completion of any of its
remedies shall not constitute a discharge of the Guarantor's obligations hereunder, it
being the purpose and intent of the Guarantor that, subject to the terms and provisions of
this Guaranty, its obligations hereunder shall be absolute, independent and unconditional
under any and all circumstances whatsoever;
(e) The liability of the Guarantor hereunder or any remedy for the
enforcement thereof shall in no way be affected by (i) the release or discharge of the
Company, or any general partner of the Company, in any creditors', receivership,
bankruptcy or other proceedings, (ii) the impairment, limitation or modification of the
liabilities of the Company or any general partner of the Company under the Contract or
of any remedy for the enforcement thereof, or of the estate of the Company or any such
general partner in bankruptcy, resulting from the operation of any present or future
provision of the federal bankruptcy act or other statute or from the decision in any court,
(iii) the rejection or disaffirmance of the Contract in any such proceedings, (iv) cessation
from any cause whatsoever of the liability of the Company or any such general partner to
the City, or (v) any defense, current or future, of the Guarantor to any action, suit or
proceeding at law or otherwise, that may be instituted on this Guaranty other than one
based upon nonfulfillment by the City of a material obligation to be performed by the
City pursuant to this Guaranty or the Contract.
WAIVERS.
The Guarantor hereby expressly irrevocably waives:
(32215 / 66600; 497504 5 )
141
(a) Notice of acceptance of this Guaranty by the City, and any and all notice
and demands of every kind that may be required to be given by any statute, rule or law
except any specifically required by this Guaranty or the Lessor under the Contract;
(b) Any defense arising by reason of any incapacity, lack of authority, death
or disability of any other person or entity (except the City) or from the failure of the City
to file or enforce a claim against any person or entity in any administrative, bankruptcy or
other proceeding;
(c) Any obligation the City might otherwise have to disclose to the Guarantor
any facts the City now or hereafter may know or have reasonably available to it regarding
the Company or its financial condition, whether or not the City has a reasonable
opportunity to communicate such facts or has reason to believe that any such facts are
unknown to the Guarantor or materially increase the risk to the Guarantor beyond the risk
the Guarantor intended to assume hereunder. Guarantor shall be fully responsible for
keeping informed of the financial condition of the Company and of all other
circumstances bearing upon the risks of nonpayment or nonperformance of the Company
under the Contract;
(d) Any defense based on an election of remedies by the City, whether or not
such election may affect in any way the recourse, subrogation or other rights of the
Guarantor against the Company or any of its partners in connection with the Golf Course
Construction Obligations;
(e) All diligence in collection or protection of or realization upon or
enforcement of the Golf Course Construction Obligations, any other obligation
hereunder, or any security for or guaranty of any of the foregoing, and any and all
formalities that otherwise might be legally required to charge the Guarantor with liability;
and
(f) Any lien, security interest or charge on the Golf Course Property, the
equipment and personal property located thereon, all rights therein and thereto, the
revenue and income to be realized therefrom, or on any proceeds or products of any
thereof, which the Guarantor may have or obtain as a result of the City's enforcement of
this Guaranty.
(g) With respect to those matters set forth in Sections 1(b) and (c),5, 6, 7
and 9 of this Guaranty, Guarantor waives any and all laws or regulations (including
without limitation California Civil Code Sections 2787 and 2855, and Code of Civil
Procedure Sections 580a, 580b, 580d and/or 726, regardless of whether such are
applicable or not to this Guaranty) that would (i) in any respect or manner diminish or
eliminate the obligations of the Guarantor hereunder regardless of whether the terms of
such laws or regulations have been specifically referenced herein or the substance of such
laws or regulations have been set forth herein or addressed by this Guaranty; or (ii)
provide some procedural defense to Guarantor with regard to any action or proceeding
the City may institute to enforce its rights under this Guaranty.
(32215 / 66600; 497504.5 )
142
EFFECT OF THE CITY'S DELAY OR ACTION.
No delay on the part of the City in the exercise of any right or remedy under this
Guaranty or the Contract shall operate as a waiver thereof, and no single or partial exercise by
the City of any right or remedy shall preclude other or further exercise thereof or the exercise of
any other right or remedy. No action by the City permitted hereunder shall in any way affect or
impair the rights of the City and the obligations of the Guarantor under this Guaranty, provided,
however, that the Guarantor shall be entitled to enforce, and the City shall be bound by, the
obligations of the City under the Contract so long as the Guarantor shall perform its obligations,
or cause its obligations to be performed, hereunder.
CONTINUING GUARANTY.
This Guaranty shall in all respects be a continuing, absolute, irrevocable and
unconditional guaranty, and shall remain in full force and effect and shall be binding upon the
heirs, personal representatives, successors and assigns of the Guarantor, and shall inure to the
benefit of the respective successors and assigns of the City. All references herein to the
Company, its general partners or the Guarantor shall be deemed to include the respective
successors and assigns of same, as the case may be. Any proposed assignment of the Guarantor's
obligations hereunder to a substitute guarantor shall be subject to the City's approval which may
be withheld in the City's sole and absolute discretion.
CERTAIN PERMITTED ACTIONS OF THE CITY.
The City may from time to time, in its sole discretion and without notice to the
Guarantor, take any of the following actions without in any way affecting the obligations of the
Guarantor: (a) obtain the primary or secondary obligation of any additional obligor or obligors
with respect to any of the Golf Course Construction Obligations; (b) enforce this Guaranty
against the Guarantor, whether or not the City shall have (1) proceeded against the Company or
any of the other guarantors or sureties or any other party primarily or secondarily obligated or (2)
resorted to or exhausted any other remedy or any other security or collateral; and (c) enforce any
other rights under the Contract.
10. TIME OF ESSENCE.
Time is of the essence of this Guaranty.
11. NO MODIFICATION WITHOUT WRITING.
This Guaranty may not be modified, amended, revised, revoked, terminated, changed or
varied in any way whatsoever except by the express terms of a writing signed by the parties
hereto. This Guaranty, and the Company's obligations set for the in Contract represent the entire
understanding between the City and the Guarantor and no other prior written or oral
understanding shall be of any force or effect.
12. NOTICES.
{32215 / 66600; 497504 5 1
143
All notices required or permitted pursuant to this Guaranty shall be in writing and shall
be deemed given when (a) personally delivered to an officer or other authorized representative of
the party to be notified or (b) after deposit in the United States mail as certified mail, postage
prepaid, return receipt requested or (c) sent by reputable overnight courier and addressed as
follows:
(or to such other address as a party may specify by notice given to the other party pursuant to this
provision):
If to the Guarantor:
CenterCal, LLC,
If to the City:
1600 East Franklin Street
El Segundo, CA 90245
Attention.: Fred W. Bruning
ES CenterCal, LLC,
1600 East Franklin Street
El Segundo, CA 90245
Attention.: Jean Paul Wardy
Griffin Fletcher & Herndon, LLP
6857 Amber Lane
Carlsbad, CA 92009
Attention.: Edward Krasnove, Esq.
City of El Segundo
Attn: City Clerk
350 Main Street
City of El Segundo, CA 90245
Notwithstanding anything in this section to the contrary, any notice sent or mailed to the
last designated address of any person or party to which a notice may be or is required to be
delivered pursuant to the Guaranty, shall not be deemed ineffective if actual delivery cannot be
made due to a change of address of the person or party to which the notice is directed or if such
notice is rejected by such party.
13. GOVERNING LAW,
This Guaranty shall be construed in accordance with and governed by the laws of the
State of California and any suit, action or other legal proceeding relating to this Guaranty may be
brought only in the Los Angeles Superior Court. The Guarantor irrevocably consents to the
service of process of the aforementioned court in any such action or proceeding by the mailing of
(32215 / 66600; 497504.5 )
144
copies thereof by certified or registered mail, postage prepaid, return receipt requested to the
Guarantor at its address set forth in SECTION 12 hereof, as such address may be changed from
time to time in accordance with such SECTION 12. Nothing herein shall affect the right of the
City to serve process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Guarantor in any other jurisdiction in which the Guarantor may be
subject to suit.
14. INDEPENDENT OBLIGATIONS.
The obligations of the Guarantor hereunder are independent of the obligations of the
Company. In the event of any default hereunder, the City may institute a separate action against
the Guarantor with or without joining or instituting a separate action against the Company.
15. CUMULATIVE.
All rights and remedies of the City and all obligations of the Guarantor under this -
Guaranty are cumulative. In addition, the City shall have all rights and remedies available to it at
law or equity for the enforcement of this Guaranty. To the extent there are obligations that
explicitly apply to Guarantor and are forth in the Contract that are not contained in this Guaranty,
Guarantor covenants and agrees to honor such obligations as part of this Guaranty. If there are
provisions_ of the Contract that expressly aWlv to Guarantor that are not contained in this
Guaranty. Guarantor covenants and agrees to honor such rp ov sions as part or this Guaranty. .
XVERABILITY.
Wherever possible each provision of this Guaranty shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision or the remaining
provisions of this Guaranty.
16. LEGAL TENDER OF UNITED STATES.
All payments hereunder shall be made in coin or currency which at the time of payment
is legal tender in the United States of America for public and private debts.
17. NO MERGER OR ALTERATION
In the event the Guarantor acquire some real or personal property interest through the
Contract or otherwise with regard to the Premises, such shall not alter or impair the City's rights
or the Guarantor's obligations under this Guaranty.
IN WITNESS HEREOF, the Guarantor has duly executed this Guaranty as of date first
written above.
{32215 / 66600; 497504 5 1
Formatted: Indent: First line: 0.5 ",
No bullets or numbering
Deleted: To the extent there are
inconsistencies between the Contract and
this Guaranty, the provision that provides
the greatest level of protection to the City
shall govern ¶
s
145
(322151 66600; 497504.5 )
CENTERCAL,LLC,
a Delaware limited liability company
By: CENTERCAL ASSOCIATES, LLC,
a Delaware limited liability company
By
Print Name
Print Title: Its Manager
City of El Segundo
Bill Fisher, Mayor
Approved As to Form:
Marls D. Hensley, City Attorney
Attest:
Tracy Weaver, City Clerk
14
146
EXHIBIT "I"
SHARED PRINCIPLES
3.18.14
147
AREAS OF UNDERSTANDING BETWEEN TOPGOLF AND
CITY OF EL SEGUNDO
As part of TopGolf's ongoing commitment to the golf community and the instructional
programs that make the Lakes a special place, we would like the following shared
principles to serve as a guidepost for TopGolf and the community through the
development phase of this project. TopGolf supports the following principles
conditioned only by commonly held notions of reasonableness and normative
business practice:
1. TopGolf will, within the scope of its own development, work with the city to design a TopGolf
facility capable of accommodating an executive golf course that at minimum maintains the
integrity /scope of the current course's footprint, including the possibility of redesigning /re-
routing the course to qualify for the USGA Course /Slope Rating necessary to host a Type I golf
club and the possibility of creating a 2nd practice putting green for use by golf course exclusive
patrons. [Note: The responsibility for any redesign and the subsequent management of the
remainder golf course are the sole province of the City of El Segundo and thus within the city's
sole discretion.]
2. The continuing capacity of early morning golfers to hit balls before playing the golf
course at specific rates to be determined with TopGolf. Players will show their greens
fees receipt and will have the ability to hit "warm -up balls" from the ground level of the
TopGolf driving range. Business hours, albeit on a basis limited to the specific purpose,
capable of accommodating those "warm -up balls" for players teeing off from 6:00 to
9:00 AM. Food & Beverage service will be provided during normal TopGolf facility
operating hours. TopGolf commits to offering golf price discounts for El Segundo
residents (10 %), as well as seniors and active military personnel (20 %). People who fall
into both of these categories will receive a cumulative discount of 30 %. These discounts
will apply for the sale of 20- minute increments of time. In addition, TopGolf commits to
providing in El Segundo the same monthly access card for avid /core normative golfers
that it provides at its golf centric facilities in Northern Virginia and suburban Chicago.
3. TopGolf will promote and accommodate the exemplary junior programs that have won
so many awards and gained the accolades of the Southern California golf community.
Specifically, in the interest of preserving the outstanding learning environment
that makes The Lakes so valuable to the community, TopGolf commits to making
the best faith effort with all such programs, including but certainly not limited to
Josh Alpert's "Good Swings Happen," to incorporate all associated camps,
programs and lessons into an El Segundo TopGolf facility in a manner allowing
those programs the best opportunity to continue their growth trajectory. These
efforts will include engaging existing Lakes Golf Pros in discussions to continue
their teaching at the facility, either as full -time employees or as independent
contractors, within constraints of the TopGolf business model, and they will
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include a good faith consideration of including some measure of a short game
practice element to replace the existing one that has proven central to the
success of the Lakes' player development /teaching /junior programs. The efforts
will also include collaboration and consultation with the aforementioned
throughout the facility's development process.
b. Specifically, in the interest of continuing to serve the needs of those local junior
high and high school golf teams that currently use the Lakes as their primary
practice site, TopGolf commits to providing access to members of those teams at
no charge when they are practicing as part of a formalized pre - scheduled team
exercise, and TopGolf commits to providing a protocol whereby members of
such teams are able to practice outside of such formalized pre - scheduled team
exercises at rates commensurate with local market rates for normative golf
practice, conditioned only by the recognition that such practice will necessarily
be restricted to that portion of the TopGolf facility reserved for the purpose.
4. TopGolf, as part of its business model, will look to employ full time Class A PGA Golf
Professionals as well as provide space for teaching on a contract basis. TopGolf's
priority and preference would be the retention of the Class A PGA Golf Professionals
that currently teach at The Lakes facility in various relationship capacities respective to
the individual professional;
5. To make real the TopGolf narrative of introducing the game of golf to a wider audience
by including a good faith obligation to work with the PGA of America, PGA of Southern
California, and the SCGA on allowing those traditional golf organizations the access and
cooperation necessary to actually make that happen [No cost to TopGolf — all costs,
burdens, etc., to be borne by the organizations]; and
6. The establishment of a temporary citizens oversight body with ADVISORY authority only
to meet regularly with Centercal /TopGolf project management and the city's
representatives for the purposes of monitoring progress, creating the communication
portals conducive of ACCURATE, fact -based exchanges of information, and ensuring to
the greatest extent feasible that the City Council's vision for the completed project is
fulfilled while not adversely affecting TopGolf's basic business model. TopGolf will have
the ability to approve /select a minimum of 33% of the members of the advisory
committee. The advisory body will have neither official oversight nor official
involvement regarding the construction development process, including but not limited
to receipt of development and building permits as well as occupancy certificates to open
for business. The advisory body's role and existence will be completed when the project
is completed and TopGolf opens for business, although to the extent the Body proves its
utility as an effective conduit of communication among operator, city and community,
TopGolf understands that the City Council per its discretion may want to make certain
appropriate post construction modifications thereto and continue post construction in a
purely advisory role, i.e., replete with the same admonitions re "official oversight"
and /or "official involvement."
149
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement ( "Agreement ") is entered into as of , 2014
by and between the City of El Segundo, a general law city and municipal corporation
( "City "), and ES Centercal, LLC, a Delaware limited liability company ( "Centercal "),
who agree as follows:
L Recitals. This Agreement is made with reference to the following facts and
circumstances:
a. Centercal has entered into that certain Due Diligence and Ground Lease
Agreement with City dated , 2014, which may result in
Centercal obtaining a long term leasehold interest in the real property
generally located at 400 S. Sepulveda Blvd, El Segundo, CA 90245(the
"Lease ") if the Conditions Precedent in the Lease are satisfied.
Capitalized terms used herein shall have the same meaning as those
defined in the Lease.
b. Pursuant to the Lease, Centercal is seeking to develop the Premises and
construct or cause to be constructed approximately 45,000 square feet of
Premises Improvements, including a golf driving range and related
clubhouse with a full service restaurant and event space, and will also be
modifying the existing Golf Course with the Golf Course Improvements.
C. In order for Centercal to lease the Premises from City and complete such
Premises Improvement and Golf Course Improvements, there are a
number of Conditions Precedent that must be satisfied under the Lease
that will require that the City assign certain City staff or consultants to
complete the following administrative tasks and other related work,
including but not limited to: real estate appraisal, financial analysis of the
Guarantors, meetings and potential negotiations with Chevron and SCE,
environmental review, zoning review, public hearings, plans review for
compliance with City standards, building code compliance, analysis of
technical studies, preparation of staff reports, development of potential
mitigation measures, and project management duties (collectively,
"Services ") which will exceed the capacity of the current city staff.
d. Centercal, is agreeing to pay for such Services as set forth in this
Agreement.
2. City Reimbursement. Exhibit "A" hereto sets forth an estimated budget for the
costs for the Services. The Services to be performed by the outside consultants
and other professionals (the "Consultants ") shall be set forth in the contracts
between the City and the Consultants (the "Consultant Contracts "). Centercal
150
agrees to reimburse the City for the full amount of such actual costs and expenses
in accordance with the terms and conditions of this Agreement and in the manner
provided in this Agreement. Upon completion of the Services, City will provide
Centercal with a detailed accounting of all costs and expenses. The total of the
costs and expenses, as disclosed by the accounting, is called the "Reimbursement
Amount." The City may contract with the Consultants for the performance of any
of the Services required to be performed hereunder. Except with respect to legal
services, the scope of services to be performed by the Consultants shall be in
accordance with a detailed scope of work which includes the timing for the work.
Centercal shall have only be provided with monthly billing totals for legal
services to be performed as the underlying bills are subject to the attorney - client
privilege between the City and its legal counsel, provided that such billing totals
shall contain a summary of the work performed to provide reasonably satisfactory
evidence that such work was performed in connection with the Services.
3. Method of Reimbursement.
Except as provided below, within days from the execution of this
Agreement, Centercal agrees to deposit with City $ ( "Deposit
Amount ") which represents twenty -fve percent (25 %) of the estimated
Reimbursement Amount. Not more often than monthly, within thirty (30)
days of Centercal's receipt of written notice from the City that the balance
of the Project Account is less than $ ^__ together with a detailed
accounting (except legal fees) including without limitation unpaid and /or
paid invoices and other reasonable evidence of cost to date of the Services,
Centercal shall deposit into the Project Account such additional amount
which is requested by the City, up to the amount of $ per
additional deposit. Upon completion of all services contemplated
hereunder, should the actual Reimbursement Amount exceed the Deposit
Amount, Centercal agrees to promptly pay City any difference in
accordance with Exhibit "A," and such additional amounts agreed to by
Developer. Should the Reimbursement Amount be less than the Deposit
Amount, City will refund Centercal any remaining Deposit Amount to
Centercal within thirty (30) days after determining the Reimbursement
Amount. Notwithstanding the foregoing, Centercal shall have the right in
its sole and absolute discretion to notify the City that Centercal refuses to
make any further deposits in which event this Agreement and the Lease
shall terminate and the City shall have no further obligation to continue
services related to the Conditions Precedent in the Lease, but Centercal
shall still be obligated to pay for any Services rendered or costs incurred
through such date. The Deposit Amount will be placed in a non - interest
bearing trust account established by the City Manager (the "Project
Account "). Centercal understands and agrees that City will not pay
interest to Centercal on the Deposit Amount and Centercal will not seek
such interest payments from City. Costs associated with the Services will
be charged against the deposit amount. The Administrative costs
estimated and set forth on Exhibit "A" and incurred by City, including,
151
without limitation, staff time, fees and services (the "City Administrative
Costs "), must be reimbursed on a time and materials basis based on
current City reimbursement rates. Centercal agrees that it will pay for
such costs on a monthly basis within thirty (30) days of receiving an
invoice from City. Notwithstanding the foregoing, The aggregate
compensation payable to the Consultants shall not exceed two hundred
and fifty seven thousand five hundred dollars ($257,500) with respect to
the cost of an environmental consultant to perform the documentation
required under the California Environmental Quality Act, Public
Resources Code §§ 21000 et seq., and one hundred and ten thousand
Dollars ($110,000) with respect to the cost of the balance of the Services
and the City Administrative Costs except as approved in writing by
CenterCal. In the event that the costs exceed, or reach a point where it is
anticipated the costs will exceed the amounts set forth on Exhibit A and
CenterCal does not approve of paying for additional costs, the Agreement
and the Lease shall terminate and the City shall have no further obligation
to continue services related to the Conditions Precedent in the Lease, but
Centercal shall still be obligated to pay for any Services rendered or costs
incurred through such date.
4. Centercal Default. Should Centercal fail to perform any of its obligations under
this Agreement after ten (10) days notice, then City may, at its option, pursue any
one or more or all of the remedies available to it under this Agreement, at law or
in equity. Without limiting any other remedy which may be available to it, if
Centercal fails to perform any of its obligations under this Agreement and /or the
deposit account has a zero or negative balance, City shall no obligation to perform
additional services under this Agreement or the Lease until such time as Centercal
has cured any failure to perform and /or deposited sufficient additional funds into
the deposit account. The city may also bring an action to recover all costs and
expenses incurred by the City in completing the Services, together with interest
thereon from the date incurred at the rate of 10% per annum.
5. Compliance with Law. Centercal will, at its sole cost and expense, comply with
all of the requirements of all federal, state, and local authorities now in force, or
which may hereafter be in force, pertaining to this Agreement. Centercal
understands and agrees that the City may not ultimately approve the project and
that Centercal is obligated to pay for the Services in accordance with this
Agreement regardless of the decision made by the City on the project.
6. Waiver of Breach. Any express or implied waiver of a breach of any term of this
Agreement will not constitute a waiver of any further breach of the same or other
term of this Agreement.
7. Insolvency; Receiver. Either the appointment of a receiver to take possession of
all or substantially all of the assets of Centercal, or a general assignment by
Centercal for the benefit of creditors, or any action taken or offered by Centercal
under any insolvency or bankruptcy action, will constitute a breach of this
152
Agreement by Centercal, and in such event this Agreement will automatically
cease and terminate.
8. Notices. Except as otherwise expressly provided by law, all notices or other
communications required or permitted by this Agreement or by law to be served
on or given to either party to this Agreement by the other party will be in writing
and will be deemed served when personally delivered to the party to whom they
are directed, or in lieu of the personal service, upon deposit in the United States
Mail, certified or registered mail, return receipt requested, postage prepaid,
addressed to:
Centercal at: ES CenterCal, LLC
Attention: Jean Paul Wardy
1600 East Franklin Street
El Segundo, CA 90245
City at: City of El Segundo
Attn: Director of Planning and Building Safety
350 Main Street
El Segundo, CA 90245
Either party may change its address for the purpose of this Section by giving
written notice of the change to the other party.
9. Acceptance of Facsimile or Electronic Signatures. The Parties agree that
agreements ancillary to this Agreement and related documents to be entered into
in connection with this Agreement will be considered signed when the signature
of a party is delivered by facsimile or electronic transmission. Such facsimile or
electronic signature will be treated in all respects as having the same effect as an
original signature.
10. Governing Law. This Agreement has been made in and will be construed in
accordance with the laws of the State of California, and exclusive venue for any
action involving this Agreement will be in Los Angeles County.
11. Partial Invalidity. Should any provision of this Agreement be held by a court of
competent jurisdiction to be either invalid or unenforceable, the remaining
provisions of this Agreement will remain in effect, unimpaired by the holding.
12. Integration. This instrument and its attachments constitute the sole agreement
between City and Centercal respecting the matters above and correctly set forth
the obligations of City and Centercal. Any Agreement or representations
respecting the property or its licensing by City to Centercal not expressly set forth
in this instrument are void.
153
13. Construction. The language of each part of this Agreement will be construed
simply and according to its fair meaning, and this Agreement will never be
construed either for or against either parry.
14. Authority/Modification. The parties hereto represent and warrant that all necessary
action has been taken by the parties to authorize the undersigned to execute this
Agreement and to engage in the actions described herein. This Agreement may be
modified solely by written amendment. City's city manager, or designee, may
execute any such amendment on behalf of City.
15. Counterparts. This Agreement may be executed in any number of counterparts,
each of which will be an original, but all of which together will constitute one
instrument executed on the same date.
154
IN WITNESS 'WHEREOF the parties hereto have executed this contract the day
and year first hereinalove written.
City of El Segundo,
a municipal corporation.
Greg Carpenter, City Manager
ATTEST:
Tracy 'Weaver, City Clerk
APPROVED AS TO FORM:
MARK D. HENSLEY, City Attorney
LOW
Karl H. Berger,
Assistant City Attomey
CENTERCAL:
ES CENTERCAL, LLC,
a Delaware limited liability company
By: CENTERCAL, LLC,
a Delaware limited liability company
a California Corporation.
[president]
[secretary]
By: CENTERCAL ASSOCIATES, LLC,
a Delaware limited liability company
By
Print Name
Print Title: Its Manager
155
EXHIB IT "A"
SERVICES AND COSTS
Estimated Applicant Costs:
1. Planning Staff Cost: (based upon a time and materials estimate) $80,000
2. City Attorney Cost: $30,000 Q $265,00 /hour
3. Environmental Consultant Cost (including traffic consultant): Maximum of
$250,000 (including $75,000 in traffic engineering and parking analysis costs)
4. Finance Consultant Cost: Maximum of $7,500 to evaluate financial condition
and ability to complete project for ES Centercal, LLC and 30 West Pershing, LLC
Total Cost Anticipated: Approximately $367,500
156
If you would like to view Public Communications received related to;
2014 -03 -18 City Council Agenda
C. UNFINISHED BUSINESS
1. Approval of an amended Due Diligence and Ground Lease Agreement to include a "shared principles"
document and Reimbursement Agreement with ES CenterCal, LLC ( "ES CenterCal ") to lease the driving range
portion of The Lakes Golf Course for the purpose of developing a TopGolf facility consisting of a driving
range, restaurant, bar and lounge and event facilities.
(Fiscal Impact: $425,000 annual ground lease with 10% increases compounded each five years;
Reimbursement Agreement to be funded by a $367,500 Developer Reimbursed Trust Fund)
Recommendation —1) Approve the amended Due Diligence and Ground Lease Agreement and direct the City
Manager to enter into a Reimbursement Agreement that requires ES CenterCal to pay the costs associated
with the various due diligence and land use entitlement costs; 2) Authorize the City Manager to execute a
Professional Service Agreement for CEQA review services related to the Due Diligence and Ground Lease
Agreement approved as to form by the City Attorney in an amount not to exceed $257,500; 3) Alternatively,
discuss and take other action related to this item.
Please go to the City Website: www.elsegundo.org, Departments, City Clerk, Documents
http: / /www.elsegundo.org /depts /cityclerk /documents.asp
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EL SEGUNDO CITY COUNCIL MEETING DATE: March 18, 2014
AGENDA STATEMENT AGENDA HEADING: Unfinished Business
AGENDA DESCRIPTION:
Consideration and possible action to: 1) receive and file this report on alternative parking
concept designs for Richmond Street, Standard Street and Grand Ave., and 2) provide
preliminary direction to staff related to preferred alternatives and implementation plans
for the 100 -400 blocks of Richmond St. and Standard St. and the east 100 block of Grand
Ave; 3) direct staff to begin process of undertaking California Environmental Quality Act
( "CEQA ") review of the alternatives. (Fiscal Impact: To Be Determined)
L . prole► d 101 1 M C 1309
1. Receive and file this report on alternative parking concept designs for Richmond St,
Standard St. and Grand Ave.;
2. Provide direction to staff related to preferred alternatives and implementation plans
for the 100 -400 blocks of Richmond St. and Standard St. and east 100 block of Grand
Ave;
3. Direct staff to begin the process of undertaking CEQA review of the alternatives; and
4. Alternatively, discuss and take other possible action related to this item.
ATTACHED SUPPORTING DOCUMENTS:
Richmond St., Standard St. and Grand Ave. Design Alternative Schematics
Alternative Comparison Table for Richmond St. and Standard St.
FISCAL IMPACT: Budget Adjustment Required
Amount Budgeted: $0
Additional Appropriation: Yes To Be Determined
Account Number(s): 001 - 400 - 4101 -6206 (Downtown Parking In -lieu Account)
ORIGINATED BY: Floriza Rivera, Principal Civil Engineer
REVIEWED BY: Stephanie Katsouleas, Public Works Directof `
APPROVED BY: Greg Carpenter, City Manager
BACKGROUND AND DISCUSSION:
At its September 3, 2013 meeting, City Council directed staff to proceed with using Downtown
Parking In -lieu funds to hire a consultant to develop conceptual designs for Richmond St. and
Standard St. that would increase the number of available parking stalls between El Segundo
Blvd. and Holly Ave. (the 100 -400 blocks). Through a competitive Request for Proposals
process, staff selected and retained KOA Corporation to develop concepts for consideration for
those streets. Staff also directed KOA to provide a cursory review of Grand Ave, between Main
St. and Standard St. to determine how many more parking spaces could be gained by making
minor changes to striping and the center median. KOA has completed its analysis and developed 2
four design alternatives for Richmond St. and Standard St. that substantially increase the number
of parking spaces on these two streets. KOA has also confirmed that by modifying the striping
157
on Grand Ave. and removing the center median opening between Main St. and Standard St.
approximately 13 more spaces can be gained.
At this point KOA and staff are prepared to provide the Council with an overview of the various
alternatives (below) and receive preliminary feedback regarding those alternatives. The next
steps will be to gather more public input regarding the alternatives and initiate the CEQA review
process of those alternatives. Until the CEQA analysis is concluded the Council cannot make a
final determination regarding which alternative to implement.
KOA's four design alternatives and associated costs for Richmond St. and Standard St. took into
consideration the street width for Fire Department vehicles, sidewalk widths for pedestrians, and
available total right -of -way width. Currently, all sidewalks are 1Oft wide in the study area. The
design alternative concepts are:
• Alternative 1: Conversion of both streets to one -way, with Richmond St. directed
northbound and Standard St. directed southbound.
o Alternative 1: On the east side of the street sidewalks widths would be reduced to
6ft and parallel parking would be maintained at 8ft. On the west side of the street,
sidewalk widths would be reduced to 8ft and angled parking would be installed.
Please note that a traffic impact analysis of this configuration on surrounding
streets has not been performed and was not part of this scope of work. A total of
56 spaces would be added on Richmond St. for an estimated cost of $820,000
($14,650 per stall). A total of 15 spaces would be added on Standard St. for an
estimated cost of $271,000 ($18,100 per stall).
• Alternatives 2 -4 would maintain two -way traffic configurations for both streets.
o Alternative 2: Sidewalks would be reduced to 8ft on both sides. Angled parking
would be added to the west side of the street, while parallel parking would be
maintained on the east side. This configuration is most similar to the existing
street configuration on Mariposa Ave. in front of the Library. A total of 56 spaces
would be added on Richmond St. for an estimated cost of $802,000 ($14,350 per
stall). A total of 15 spaces would be added on Standard St. for an estimated cost
of $246,000 ($16,400 per stall).
o Alternative 3: On the east side of the street sidewalks widths would be reduced to
6ft and parallel parking would be maintained at 8ft. On the west side of the street,
sidewalk widths would be reduced to 8ft and 90- degree parking would be added.
A total of 52 spaces would be added on Richmond St. for an estimated cost of
$799,000 ($15,365 per stall). A total of 17 spaces would be added on Standard
St. for an estimated cost of $267,000 ($15,705 per stall).
o Alternative 4: Sidewalks would be maintained at loft on both sides of the street.
Parallel parking on the east side of the street would be removed and angled
parking would be added to the west side. A total of 34 spaces would be added on
Richmond St. for an estimated cost of $785,000 ($23,100 per stall). There is no
Alternative 4 for Standard St. as the proposed design does not result in an increase
in total number of parking spaces.
158
KOA Corporation presented these four alternative parking design concepts to the Planning
Commission on February 27, 2014. Staff also presented four comments it had received from the
public regarding the alternatives, of which two supported Alternative 2, one supported
Alternative 3, and one requested that no changes be made in the 100 block of Standard St.
Alternative 2 was originally presented to the Planning Commission with slightly narrower
sidewalks and wider lane widths than what is included with this staff report. However, a
modified version of the Alternative 2 was discussed and was the most supported "permanent"
option during the Planning Commission Meeting. That modified alternative is presented herein
as Alternative 2a in the schematic design.
Proceeding with an interim step (Alternative 4a) was also discussed and considered favorably.
This would include implementing only the Alternative 4 striping plan while suspending the much
needed sidewalk and street reconstruction work until some future date when funding becomes
available. Alternative 4a could be implemented for minimal or no additional cost during the
City's FY 13/14 Slurry Seal project, scheduled to occur in July 2014. Although this alternative
gains the least number of spaces of all alternatives proposed (34 spaces), it is the most cost -
effective interim option to achieve immediate results and it can be implemented relatively easily
and quickly. It would also provide additional time for the Council to consider which alternative
is ultimately the most desirable and/or affordable. The Planning Commission also discussed
potential parking enhancements on Main St., in particular conversion of Main St. from a 4 -lane
street into a 2 -lane street along with the installation of angled parking. However, that concept
was not part of the original direction provided by City Council and was not considered in the
KOA's Scope of Work.
After reviewing the alternative concept designs and cost estimates, the Planning Commission
recommended that City Council consider: 1) pursuing Alternative 4a for Richmond St. as an
interim step as part of the FY 13/14 slurry seal project, 2) subject to CEQA review,
implementing Alternative 2 as a permanent solution when fund become available, and 3)
exploring other parking enhancements, including the possibility of reducing the number of travel
lanes on Main Street and re- striping it to include angled parking.
Grand Ave.
Currently, there is a center median opening on Grand Ave. between Main St. and Standard St.,
which allows northbound alley traffic to turn left (west) on to Grand Ave. If this median opening
is closed off and the striping adjacent to the westerly end of the median modified, it is estimated
that an additional 13 parking spaces could be gained. The estimated cost for these improvements
is $20,000, which includes minor striping, concrete work and landscaping in and around the
median.
Funding Availability for Implementation of Parking Enhancements
The City has collected over $244,500 from the Parking In -lieu Fee Program' through 2013 and
also receives an annual minimum payment of $23,401 of in -lieu fees that can be used to fund
street improvements on Richmond St., Standard St. and Grand Ave. In order for the City to
implement any of the options proposed on Richmond, Standard St. and Grand Ave. (except
Alternative 4a), up to $900,000 in additional funds would be needed for design and construction.
I The parking in -lieu program, although completely voluntary, provides a parking solution for those businesses that
cannot meet the minimum code parking requirements on their own property by allowing them contribute to toward
parking improvements in the surrounding area.
159
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EL SEGUNDO CITY COUNCIL MEETING DATE: March 18, 2014
AGENDA STATEMENT AGENDA HEADING: Report of Committees, Commissions & Boards
AGENDA DESCRIPTION:
Consideration and possible action regarding the Planning Commission's communication
regarding the Downtown Specific Plan (DSP) Parking In -Lieu Fee Program and how the
Program may have negatively affected parking being conveniently located near businesses.
(Fiscal Impact: N /A)
RECOMMENDED COUNCIL ACTION:
1. Receive and file report;
2. Direct Staff to gather more information or begin the process for altering the Program; and /or,
3. Alternatively, discuss and take other possible action related to this item.
ATTACHED SUPPORTING DOCUMENTS:
1. Minutes of the Planning Commission meeting of December 12, 2013
FISCAL IMPACT: None
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: Kimberly Christensen, AICP, Planning Manager
REVIEWED BY: Sam Lee, Director of Planning and Building Safety
APPROVED BY: Greg Carpenter, City Manager,
BACKGROUND AND DISCUSSION:
L Background
On December 12, 2013, the Planning Commission approved the expansion of an existing
restaurant in the Downtown Specific Plan area. The proposed expansion generated a
requirement for seven additional parking spaces, which the applicant proposed to meet by paying
a parking in -lieu fee in compliance with the Downtown Specific Plan Parking In -Lieu Fee
program. The parking in -lieu fee program was adopted in 2003 (Ordinance No. 1368) and
allows new buildings or additions to existing buildings to reduce the required number of parking
spaces by paying a parking in -lieu fee. The amount of the fee is set by City Council resolution
and the current amount per space is $17,500.
The Planning Commission approved the proposed restaurant expansion by a vote of 3 to 1.
During the public hearing, some of the Commissioners expressed concern about the impact of
the parking in -lieu fee program on the availability of street parking for other businesses and
residents in the area. They noted that as more businesses take advantage of the parking in -lieu
.:
fee program, their staff and patrons will have no street parking that is conveniently located. At
the conclusion of the hearing the Planning Commission asked staff that these concerns be relayed
to the City Council.
P: 1Plaunin6& Buildin g5nfetyl0PInaning- UIdIPRWECTS (Man ning1 1100I .102MA- I0121Cuy Council 031S2014 iA- 1012CCS1af Report -In -Lieu Parking Fec info hem .0]16.1alaino].doe
169
MINUTES OF THE MEETING
OF THE SPECIAL PLANNING COMMISSION
OF THE CITY OF EL SEGUNDO, CALIFORNIA
December 12 , 2012
Chair Wagner called the El Segundo Planning Commission meeting to order at CALL TO ORDER
5:30 p.m. in the El Segundo City Hall's Council Chambers, 350 Main Street, El
Segundo, California.
Commissioner Nisley led the Pledge of Allegiance to the Flag. PLEDGE TO FLAG
PRESENT: WAGNER, BALDINO, NISLEY, NICOL, and NEWMAN ROLL CALL
None. PUBLIC
COMMUNICATIONS
Chair Wagner presented the Consent Calendar. CONSENT CALENDAR
Vice Chair Baldino inquired about the two properties being on the same parcel. CALL ITEMS FROM
CONSENT
Commissioner Newman moved, seconded by Commissioner Nisley, to approve MOTION
the November 19, 2012 Special Meeting Minutes. Motion carried (5 -0).
Chair Wagner presented Agenda Item E -2A, Environmental Assessment No. EA- DIRECTOR DECISIO
1003, Administrative Adjustment No. ADJ 12 -06. Applicant: Matt Crabbs. FOR PARKING
Address: 130 Penn Street. Property Owner: Smoky Hollow, LLC. DEMAND STUDIES
EA -1003; ADJ 12 -06.
Commissioner Newman moved, seconded by Commissioner Nisley, to Receive MOTION
and File the Director of Planning and Building Safety's approval of Environmental
Assessment No. EA -1003; Administrative Adjustment No. ADJ 12 -06. Motion
carried (5 -0).
Chair Wagner presented Agenda Item E -213, Environmental Assessment No. EA- DIRECTOR DECISION
1004, Administrative Adjustment No. ADJ 12 -07. Applicant: Matt Crabbs. FOR PARKING
Address: 134 Penn Street, Property Owner: Smoky Hollow, LLC. DEMAND STUDIES
EA -1004; ADJ 12 -07.
Commissioner Newman moved, seconded by Commissioner Nisley, to Receive MOTION
and File the Director of Planning and Building Safety's approval of Environmental
Assessment No. EA -1003; Administrative Adjustment No. ADJ 12 -06. Motion
carried (5 -0).
Planning Manager Kimberly Christensen read into the record Agenda Item H -3 WRITTEN
"Massage Establishments" signature page for the ordinance. COMMUNICATIONS
Chair Wagner presented Agenda Item H -3, Environmental Assessment No. EA- NEW BUSINESS —
1007, Zone Text Amendment to amend El Segundo Municipal Code (ESMC) PUBLIC HEARING
Chapter 4 -10 regulating massages and ESMC §15 -1 -6 to include massage EA -1007; ZTA 12 -07
establishments in the definition of "Commercial" in the sub - category "Personal
Services." Applicant: City of El Segundo. Address: Citywide. Property Owner:
Various.
PAPlanning & Building Safety \0 Planning - 01d\PLAN -COM \MINUTES \2012 \2012 12 -13 Minutes.doc1 70
Pape 1
Paul Samaras principal planner presented a PowerPoint presentation (for the
record).
Commissioner Newman, moved, seconded by Commissioner Nicol, to approve MOTION
Resolution No. 2724 approving Environmental Assessment No. 1007, Zone Text
Amendment to amend El Segundo Municipal Code (ESMC) Chapter 4 -10
regulating massages and ESMC §15 -1 -6 to include massage establishments in
the definition of "Commercial" in the sub - category "Personal Services." Motion
carried (5 -0).
Commissioner Nisley recused himself from participating in Agenda Item 1 -4 for NEW BUSINESS —
potential conflict of interest reasons because his residence is located within 500 PUBLIC HEARING
feet of the subject property and then left the dais. EA -953; CUP 11 -12 an
MISC 11 -08.
Chair Wagner presented Agenda Item 1 -4, Environmental Assessment No. EA-
953; Conditional Use Permit No. 11 -12, and Architectural Design Review MISC
11 -08. Applicant: Rock and Brews — David Furano. Address: 139 -147 Main
Street. Property Owner: Garden on Main, LLC — David Furano and 139 Main
Street, LLC — Michael Zislis.
Principal Planner Paul Samaras provided a presentation (for the record).
Chair Wagner inquired about the Police Department calls that were described on
stamped paged 62.
Newman inquired about the Heritage Stones program
Paul Samaras stated that the Public Works Department will know more information
regarding the new location of the Heritage Stones.
Michael Zislis,applicant_for of Rock and Brews
Mr. Zislis gave a brief statement and stated he is available to answer any
questions.
Newman ask Mr. Zislis to address the police calls and clarify if the frequency of the
calls on a monthly basis.
Mr. Zislis stated that sometimes the Police calls can come from them (Rock and
Brews) and that there were 3 calls at the most.
Commissioner Newman moved, seconded by Vice Chair Baldino, to Receive and MOTION
File the Director of Planning and Building Safety's approval of Environmental
Assessment No. EA -953, Conditional Use Permit No. 11 -12, and Architectural
Design Review MISC 11 -08. Motion carried (5 -0).
None. PUBLIC HEARING
CONTINUED BUSINE
PAPlanning & Building Safety \0 Planning - Old\PIAN•COM \MINUTES \2012 \2012 12 -13 Minutes.docl 71
Pape 2
Planning and Building Safety Director Sam Lee stated that the December 27" REPORT FROM
meeting is cancelled and that there will be a regularly scheduled meeting on PLANNING AND
January 10, 2013. He informed the Commissions that the Hyatt Hotel open on BUILDING SAFETY
December 12, 2012. DIRECTOR
The Commissioners wished everyone Merry Christmas.
None.
Chair Wagner adjourned the meeting. Motion carried (5 -0).
The meeting adjoFROD 5 p.m.
PASSED A AN THIS 10TH DAY OF JANUARY 2013.
Sa Lee, cretary of David Wagner, C airman
the Planning Commission Planning Commission
and Director of the City of El Segundo, California
Planning and Building Safety
Department
PLANNING
COMMISSIONERS
COMMENTS
OTHER BUSINESS
MOTION
ADJOURNMENT
PAPlanning & Building Safety \0 Planning - 01d\PLAN -COM \MINUTES \2012 \2012 12 -13 Minutes.doc1 72
Pape 3
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CITY OF EL SEGUNDO
PAYMENTS BY WIRE TRANSFER
02/15/14 THROUGH 02/28/14
Date Payee
2/14/2014 Health Comp
2/18/2014 Nationwide NRS EFT
2/18/2014
2/19/2014
2/19/2014
2/19/2014
2/19/2014
2/20/2014
2/20/2014
2/26/2014
2/27/2014
2/27/2014
2/27/2014
2/27/2014
2/27/2014
2/27/2014
2/27/2014
2/28/2014
2/28/2014
2/28/2014
2/28/2014
2/28/2014
2/28/2014
2/28/2014
02/15/14-02/21/14
02/22/14- 02/28/14
Nationwide NRS EFT
Cal Pers
Cal Pers
Cal Pers
Cal Pers
Health Comp
Lane Donovan Golf Ptr
Unum
Cal Pers
Cal Pers
Health Comp
IRS
Employment Development
Employment Development
State of CA EFT
Manufacturers & Traders
Manufacturers & Traders
Manufacturers & Traders
US Bank - Trust Acct
South Bay Credit Union
Nationwide NRS EFT
Nationwide NRS EFT
Workers Comp Activity
Workers Comp Activity
DATE OF RATIFICATION: 03/4/14
TOTAL PAYMENTS BY WIRE:
Certified as to the accuracy of the wire transfers by:
Deputy City Treasure II
Amount
5,725.53
53,375.31
1,982.32
116, 078.96
247, 842.63
1,398.39
5,934.88
1,544.45
21, 396.52
274.20
2,594.40
3,146.40
487.17
232,585.49
45, 865.03
3,812.25
3,885.00
41, 554.06
477.31
5,809.23
7,952.81
14,570.38
84,728.68
1,982.32
25, 782.72
10,464.30
941,250.74
'3d'
to
!/,3
Date
Date
Description
Weekly claims - adjust prior period
EFT 457 payment
EFT 401 a payment
EFT Retirement Misc (Chase)
EFT Retirement Safety (Chase)
EFT Retirement Safety (Chase)
EFT Retirement Misc (Chase)
Weekly claims
Payroll Transfer
Long Term Care Premium
Fire - Survivor Benefit
Police - Survivor Benefit
Weekly claims
Federal 941 Deposit
State PIT Withholding
State SDI payment
EFT Child support payment
457 payment Vantagepoint
IRA payment Vantagepoint
401 payment Vantagepoint
PARS payment
Payroll credit union deduction pmt
EFT 457 payment
EFT 401 a payment
SCRMA checks issued
SCRMA checks issued
941.250.74
Information on actual expenditures is available in the City Treasurer's Office of the City of El Segundo.
PACity TreasureAWire Transfers \Wire Transfers 10 -01 -13 to 9 -30 -14 3/3/2014 174
REGULAR MEETING OF THE EL SEGUNDO CITY COUNCIL
TUESDAY, MARCH 4, 2014 — 5:00 PM
5:00 P.M. SESSION
CALL TO ORDER — Mayor Fisher at 5:00 PM
ROLL CALL
Mayor Fisher -
Present
Mayor Pro Tern Jacobson -
Present
Council Member Fuentes -
Present
Council Member Atkinson -
Present
Council Member Fellhauer -
Present
PUBLIC COMMUNICATION — (Related to City Business Only — 5 minute limit per
person, 30 minute limit total) Individuals who have received value of $50 or more to
communicate to the City Council on behalf of another, and employees speaking on
behalf of their employer, must so identify themselves prior to addressing the City
Council. Failure to do so shall be a misdemeanor and punishable by a fine of $250.
SPECIAL ORDER OF BUSINESS:
Mayor Fisher announced that Council would be meeting in closed session pursuant to
the items listed on the agenda.
CLOSED SESSION:
The City Council moved into a closed session pursuant to applicable law, including the
Brown Act (Government Code Section §54960, et seq.) for the purposes of conferring
with the City's Real Property Negotiator; and /or conferring with the City Attorney on
potential and /or existing litigation; and /or discussing matters covered under Government
Code Section §54957 (Personnel); and /or conferring with the City's Labor Negotiators;
as follows:
CONFERENCE WITH LEGAL COUNSEL — EXISTING LITIGATION (Gov't Code
§54956.9(d) (3) -3- matter
1. City of El Segundo vs. City of Los Angeles, et.al. LASC Case No. BS094279
2. Springfield vs. City of El Segundo, et.al. LASC Case No. YC067789
3. Flickinger vs. City of El Segundo, WCAB No. ADJ8627969
CONFERENCE WITH LEGAL COUNSEL — ANTICIPATED LITIGATION
Significant exposure to litigation pursuant to Government Code §54956.9(d) (2) and (3):
-0- matter.
Initiation of litigation pursuant to Government Code §54956.9(c): -0- matter.
MINUTES OF THE REGULAR CITY COUNCIL MEETING
MARCH 4,
PAGE NO. O. 1 1
175
DISCUSSION OF PERSONNEL MATTERS (Gov't Code §54957): -0- matter
APPOINTMENT OF PUBLIC EMPLOYEE (Gov't. Code § 54957) —0- matter
CONFERENCE WITH CITY'S LABOR NEGOTIATOR (Gov't Code §54957.6): -6-
matters
Agency Designated Representative: City Manager
Employee Organizations: Police Management Association; Police Officers Association;
Police Support Services Employees Association; Fire Fighters Association; Supervisory
and Professional Employees Association; and the City Employees Association
CONFERENCE WITH REAL PROPERTY NEGOTIATOR (Gov't Code §54956.8): -0-
matters
Adjourned at 6:55 PM
MINUTES OF THE REGULAR CITY COUNCIL MEETING
MARCH 4, 2014
PAGE NO, 2
176
REGULAR MEETING OF THE EL SEGUNDO CITY COUNCIL
TUESDAY, MARCH 4, 2014 - 7:00 P.M.
7:00 P.M. SESSION
CALL TO ORDER — Mayor Fisher at 7:03 PM
INVOCATION — Rob McKenna, Pastor, the Bridge
PLEDGE OF ALLEGIANCE — Council Member Fellhauer
PRESENTATIONS
Proclamation read by Council Member Fellhauer and presented to Blake Parker of the
Tree Musketeers in honor of Arbor Day on Saturday, March 8, 2014.
ROLL CALL
Mayor Fisher - Present
Mayor Pro Tern Jacobson - Present
Council Member Fuentes - Present
Council Member Atkinson - Present
Council Member Fellhauer - Present
PUBLIC COMMUNICATIONS — (Related to City Business Only — 5 minute limit per
person, 30 minute limit total) Individuals who have received value of $50 or more to
communicate to the City Council on behalf of another, and employees speaking on
behalf of their employer, must so identify themselves prior to addressing the City
Council. Failure to do so shall be a misdemeanor and punishable by a fine of $250.
While all comments are welcome, the Brown Act does not allow Council to take action
on any item not on the agenda. The Council will respond to comments after Public
Communications is closed.
Peggy Tyrell, resident, not happy with Council decisions of late. Not in favor of the
Wiseburn /EI Segundo Pool collaboration. Believes poor management is the reason why
the City is in debt.
Loretta Frye, resident, watched the Planning Commission meeting and was appalled
by what she heard concerning a survey for Richmond St. and Standard St. that would
cost $80,000.00. If we don't have money, then are why are these discussions taking
place?
Jane Friedkin, resident, unhappy with a flyer that was distributed to residents and
stated that seniors are on limited income, but costs keep rising. Believes the Council
hands out money right and left.
Liz Garnholz, resident, stated that the Candidates Forum will be held Thursday, March
6, 2014 in the Council Chamber from 6:00 PM to 8:45 PM. Asked several questions
concerning the Chevron money due in April, the Campus soccer fields and Top Golf.
MINUTES OF THE REGULAR CITY COUNCIL MEETING
MARCH 4, 2014
PAGE NO. 3
177
CITY COUNCIL COMMENTS — (Related to Public Communications)
Council answered questions pertaining to Public Communications.
A. PROCEDURAL MOTIONS
Consideration of a motion to read all ordinances and resolutions on the Agenda by title
only.
MOTION by Council Member Fellhauer, SECONDED by Council Member Fuentes to
read all ordinances and resolutions on the agenda by title only. MOTION PASSED BY
UNANIMOUS VOICE VOTE. 5/0
B. SPECIAL ORDERS OF BUSINESS (PUBLIC HEARING)
1. Consideration and possible action to adopt the proposed fee modifications
presented by the Recreation and Parks Fee Analysis Task Force.
(Fiscal Impact: Estimated Increased Revenues of $200,000.00 to $250,000.00
Annually)
Mayor Fisher stated that this was the time and place to conduct a public hearing to
approve and adopt a resolution on the proposed fee schedule for programs and
services provided through the Department of Recreation and Parks.
Clerk Weaver stated that proper notice had been given in a timely manner and written
communication was received in the City Clerk's office and Council was copied.
Greg Carpenter, City Manager, introduced the item.
Members of the Task Force spoke and answered questions concerning the proposed
fee schedule.
Mayor Fisher opened the Public Hearing.
Public input:
Mike Robbins, resident, stated this is the wrong time to raise fees for residents and
businesses.
Loretta Frye, resident, spoke on behalf of Senior Citizens and their ability or inability to
pay for the Dial -A -Ride shuttle and other proposed fees.
Jill Dole, resident, spoke on the proposed fees. In favor of increasing the Rec. Park
card fee, but would rather not pay for each use, such as each time her family uses the
pools. Would be willing to purchase a "swim card" or something of that nature.
Andrew Walther, resident, spoke concerning lack of clarity and some uncertainty on
the proposed fees. In favor of increasing the Rec. Park card fee in lieu of paying as you
go.
MINUTES OF THE REGULAR CITY COUNCIL MEETING
MARCH 4, 2014
PAGE NO. 4
178
Lou Kutil, resident, presented a notarized petition of 544 signatures on behalf of the
Senior Citizens against the fees for riding the Dial -A -Ride shuttle.
Liz Garnholz, resident, spoke against the proposed the fees. Questioned a fee for
Lunch shuttles.
Janette Martin, resident, spoke against the proposed fees for the Dial -A -Ride shuttle.
Jane Friedkin, resident, spoke on behalf of the Senior Citizens having to pay the
proposed fees for Dial -A -Ride shuttle.
Craig Carr, resident, spoke concerning the trees along Main Street that have recently
been cut down.
MOTION by Council Member Fellhauer, SECONDED by Council Member Atkinson to
close the Public Hearing. MOTION PASSED BY UNANIMOUS VOICE VOTE. 5/0
Council Discussion
Bob Cummings, Recreation and Parks Director, answered questions.
Continued Council Discussion
Council Consensus directed staff to move forward on this item and bring back at a
future City Council meeting in May.
C. UNFINISHED BUSINESS
D. REPORTS OF COMMITTEES, COMMISSIONS AND BOARDS
E. CONSENT AGENDA
All items listed are to be adopted by one motion without discussion and passed
unanimously. If a call for discussion of an item is made, the item(s) will be considered
individually under the next heading of business.
2. Approve Warrant Numbers 2596576 - 2596841 on Register No. 10 in the total
amount of $702,532.30 and Wire Transfers from 02/01/2014 through 02/14/2014
in the total amount of $2,850,703.68). Authorized staff to release. Ratified
Payroll and Employee Benefit checks; checks released early due to contracts or
agreement; emergency disbursements and /or adjustments; and wire transfers.
3. Approved Regular City Council Meeting Minutes of February 18, 2014.
4. Authorized the City Manager to execute Agreement No. 4565 with the El Camino
College to continue an In- Service Firefighter Training Program within the Fire
Department through June 30, 2014 and further agree to four (4) additional
optional one year renewal periods.
(Fiscal Impact: Reimbursement of approximately $18,000.00)
MINUTES OF THE REGULAR CITY COUNCIL MEETING
MARCH 4, 2014
PAGE NO. 5
179
5. Received and filed the report without objecting to a new Alcoholic Beverage
Control (ABC) License which will allow the on -site sale of beer and wine for on-
site consumption (Type 41 State of California Alcoholic Beverage Control
License) at a new restaurant (Toppings Custom Fired Pizza) at 2161 East El
Segundo Boulevard. Applicant: Kim S. Kano
(Fiscal Impact: N /A)
6. PULLED BY PLANNING AND BUILDING SAFETY STAFF
MOTION by Council Member Fuentes, SECONDED by Council Member Atkinson to
approve Consent Agenda items 2, 3, 4, and 5. MOTION PASSED BY UNANIMOUS
VOICE VOTE. 5/0
F. NEW BUSINESS
G. REPORTS — CITY MANAGER - None
H. REPORTS — CITY ATTORNEY - None
REPORTS — CITY CLERK — Stated the Sample Ballot and election information is
now posted to the website under the City Clerk page.
J. REPORTS — CITY TREASURER - None
K. REPORTS — CITY COUNCIL MEMBERS
Council Member Fellhauer — None
Council Member Atkinson — Glad to be back in person and thanked everyone for
coming out tonight.
Council Member Fuentes — Attended the Little League 60th Anniversary last Saturday.
Encouraged the residents to catch a Challenger's game.
Mayor Pro Tem Jacobson — Mentioned the Automobile Driving Museum is celebrating
the Anniversary of the GTO this Saturday, March 8, 2014.
Mayor Fisher — Attended a meeting at the Wilson Institute, chaired by CEO Jane
Harmon, mayors and council members from the South Bay attended. A presentation
was given by The Secretary of Homeland Security.
MINUTES OF THE REGULAR CITY COUNCIL MEETING
MARCH 4, 2014
PAGE NO. 6
im
PUBLIC COMMUNICATIONS — (Related to City Business Only — 5 minute limit per
person, 30 minute limit total) Individuals who have receive value of $50 or more to
communicate to the City Council on behalf of another, and employees speaking on
behalf of their employer, must so identify themselves prior to addressing the City
Council. Failure to do so shall be a misdemeanor and punishable by a fine of $250.
While all comments are welcome, the Brown Act does not allow Council to take action
on any item not on the agenda. The Council will respond to comments after Public
Communications is closed.
Mike Robbins, resident, spoke on his time on the Council. Continues to state Safety
Personnel as the reason we are in our current financial situation.
Peggy Tyrell, resident, wanted her questions answered concerning the Parking
Structure revenue and the Pool maintenance funds for the Wiseburn /EI Segundo future
pool.
Antonio Mendez, resident, wanted to know if the City could partner with Chevron on
the parking situation, since Chevron has several lots in town.
Liz Garnholz, resident, asked what CalPers cost the City last Fiscal Year.
Jane Friedkin, resident, stated that the citizens are paying the higher costs, because
when costs go up, the companies pass the costs onto the consumers.
Council answered questions pertaining to Public Communications
MEMORIALS — None
ADJOURNMENT at 9:38 PM
Tracy Weaver, City Clerk
MINUTES OF THE REGULAR CITY COUNCIL MEETING
MARCH 4, 2014
PAGE NO. 7
181
SPECIAL MEETING OF THE EL SEGUNDO CITY COUNCIL
MONDAY, MARCH 10, 2014,4:00 P.M.
CALL TO ORDER — Mayor Fisher at 4:00 p.m.
ROLL CALL
Mayor Fisher -
Mayor Pro Tern Jacobson -
Council Member Fuentes -
Council Member Atkinson -
Council Member Fellhauer -
Present
Present
Present — Arrived at 5: 03 p.m.
Present
Present
PUBLIC COMMUNICATIONS - (Related to City Business Only - 5 minute limit per person, 30
minute limit total). Individuals who have received value of $50 or more to communicate to the City
Council on behalf of another, and employees speaking on behalf of their employer, must so identify
themselves before addressing the City Council. Failure to do so is a misdemeanor and punishable
by a fine of $250.
SPECIAL ORDER OF BUSINESS:
1. Appoint City Manager as labor negotiator for the following employee groups: Executive
Management (unrepresented employees) and Management/Confidential (unrepresented
employees).
MOTION by Mayor Fisher, SECONDED by Mayor Pro Tern Jacobson to appoint the City
Manager as labor negotiator for the foil iowing employee groups: Executive Nonag ern- ent
(unrepresented employees) and Management/Confidential (unrepresented employees).
MOTION PASSED BY UNANIMOUS VOICE VOTE. 4/0. COUNCIL MEMBER FUENTES
ABSENT.
CLOSED SESSION:
The City Council moved into a closed session pursuant to applicable law, including the Brown Act
(Government Code Section §54960, et seq.) for the purposes of conferring with the City's Real
Property Negotiator; and /or conferring with the City Attorney on potential and /or existing litigation;
and /or discussing matters covered under Government Code Section §54957 (Personnel); and /or
conferring with the City's Labor Negotiators; as follows:
182
CONFERENCE WITH CITY'S LABOR NEGOTIATOR (Gov't Code §54957.6): -8- matters
Agency Designated Representative: City Manager
Employee Organizations: Police Management Association; Police Officers Association; Police
Support Services Employees Association; Fire Fighters Association; Supervisory and Professional
Employees Association; Employees Association; Executive Management (unrepresented
employees); Management/Confidential (unrepresented employees)
ADJOURNMENT at 6:00 p.m.
Cathy Domann, MMC
Deputy City Clerk II
2
183
EL SEGUNDO CITY COUNCIL MEETING DATE: March 18, 2014
AGENDA STATEMENT AGENDA HEADING: Consent Agenda
AGENDA DESCRIPTION:
Consideration and possible action to accept as complete the City Wide Fiber Optics
Communication Project that will serve City buildings and facilities. Project No. PW 13-
04. (Fiscal Impact: $236,544.27)
RECOMMENDED COUNCIL ACTION:
1. Accept the work as complete;
2. Authorize the City Clerk to file a Notice of Completion in the County Recorder's
Office.
3. Alternatively, discuss and take other possible actions related to this item.
ATTACHED SUPPORTING DOCUMENTS:
Notice of Completion
FISCAL IMPACT: Included in Adopted Budget
Amount Budgeted: $440,000.00
Additional Appropriation: No
Account Number(s): $231,734.23 - 301 - 400 - 8201 -8497 (I -Net Fiber Optic
Connections)
$4,810.04 - 702 - 400 - 6601 -5209 (Community Cable TV -
Equipment)
ORIGINATED BY: Larry Klingaman, Information EiNstems Manage
REVIEWED BY: Mitch Tavera, Chief of Police
APPROVED BY: Greg Carpenter, City Manager
BACKGROUND AND DISCUSSION:
At the Strategic Planning session on August 16, 2012, Staff was given direction to proceed with
the installation of fiber cable into existing conduits with a program budget of $440,000.00. The
first phase of this program is to connect the buildings west of Sepulveda. The second phase of
the project is to extend the City owned fiber optic network across Sepulveda.
On October 16, 2012, the City Council adopted plans and specifications to install fiber optic
network cable to the city facilities West of Sepulveda. At this meeting council authorized staff to
advertise for the job at a cost not to exceed $225,000.00. On February 26, 2013, the City Clerk
opened the bids for the project and found Federal Technology Solutions, Inc. to be the lowest
responsible bid for the job.
Since the bid was over the authorized amount, staff worked with the contractor and implemented
Change Order 1 in the amount of - $27,789.92. This change resulted in a new project total of
$223,835.10. On April 2, 2013, the City Council authorized the City Manager to execute a Public
.,
Works Contract with Federal Technology Solutions, Inc. for the installation of fiber optic cable
to City buildings West of Sepulveda in the amount of $223,835.10.
Construction by Federal Technology Solutions, Inc. began on July 29, 2013. There were six
additional change orders issued.
Change Order 2: Adjust the segment on Main Street.
Change Order 3: Adjust the segment between City Hall, PD and Fire.
Change Order 4: True up the estimated distances to the actual pulled distances.
Change Order 5: Fix obstructed conduit on Grand Avenue in front of the Teen Center.
Change Order 6: Add the Cable Control Room to the Fiber Optic Project.
Change Order 7: Hire P2S Engineering to inspect the installation.
Construction was successfully completed by Federal Technology Solutions, Inc. on February 24,
2014. The construction cost with approved change orders was $229,869.27. P2S Engineering
was hired as a subject matter expert to inspect the project during construction. The total for
inspection services was $6,675.00 bringing the total project cost is $236,544.27. It should be
noted that this project would have been under budget except for the unanticipated cost to
investigate and repair the obstructed conduit on Grand Avenue in front of the Teen Center
(Change Order 5).
Original Bid $ 251,625.02
Change Order 1 $ (27,789.92)
Awarded $ 223,835.10
Change Order 2
$
(3,690.31)
Change Order 3
$
480.19
Change Order 4
$
(2,858.75)
Change Order 5
$
7,293.00
Project Cost
$
225,059.23
Change Order 6
Construction Total
$ 4,810.04
$ 229,869.27
Change Order 7 $ 6,675.00
Project Total $ 236,544.27
Staff recommends that City Council accept the work performed by Federal Technology
Solutions, Inc. as complete, and authorize the City Clerk to file a Notice of Completion with the
County Recorder's Office.
185
Recording Requested by
and When Recorded Mail To:
City Clerk, City Hall
350 Main Street
El Segundo, CA 90245
NOTICE OF COMPLETION OF CONSTRUCTION PROJECT
Project Name: Installation of fiber optic cable to City buildings West of Sepulveda.
Project No.: PW 13 -04 Contract No. 4408
Notice is hereby given pursuant to State of California Civil Code Section 3093 et seq that:
The undersigned is an officer of the owner of the interest stated below in the property
hereinafter described.
The full name of the owner is: City of El Segundo
3. The full address of the owner is: City Hall, 350 Main Street, El Segundo, CA, 90245
4. The nature of the interest of the owner is: Public Facilities
5. A work of improvement on the property hereinafter described was field reviewed by the
Information Systems Manager on February 24, 2014. The work done was: Installation of
fiber optic cable to City buildings West of Sepulveda.
6. On March 18, 2014, City Council of the City of El Segundo accepted the work of this
contract as being complete and directed the recording of this Notice of Completion in the
Office of the County Recorder.
7. The name of the Contractor for such work of improvement was: Federal Technology Solutions, Inc.
8 The property on which said work of improvement was completed is in the City of El
Segundo, County of Los Angeles, State of California, and is described as follows:
Installation of fiber optic cable to City buildings West of Sepulveda.
Dated:
Stephanie Katsouleas
Public Works Director
VERIFICATION
I, the undersigned, say: I am the Director of Public Works /City Engineer of the City El Segundo, the
declarant of the foregoing Notice of Completion; I have read said Notice of Completion and know the
contents thereof; the same is true of my own knowledge.
I declare under penalty of perjury the foregoing is true and correct.
Executed on -, 2014 at El Segundo, California.
Stephanie Katsouleas
Public Works Director
:•
EL SEGUNDO CITY COUNCIL MEETING DATE: March 18, 2014
AGENDA STATEMENT AGENDA HEADING: Consent Agenda
AGENDA DESCRIPTION:
Consideration to authorize the appropriation of existing designated funds accrued in prior
fiscal years to purchase computer hardware, software and peripherals for use at City
facilities in an amount not to exceed $230,600.00. (Fiscal Impact: $230,600.00)
RECOMMENDED COUNCIL ACTION:
(1) Authorize staff to appropriate existing designated funds accrued in prior fiscal years
to purchase computer hardware, software and peripherals in an amount not to exceed
$230,600.00.
(2) Alternatively, discuss and take other action related to this item.
ATTACHED SUPPORTING DOCUMENTS:
Attachment A: Computer Purchase Refresh Documentation
FISCAL IMPACT: Included in Adopted Budget
Amount Budgeted: $230,600.00
Additional Appropriation: No
Account Number(s): $230,600.00 (001- 400 - 2508 -0000 Computer Purchase
Refresh)
ORIGINATED BY: Larry Klingaman, Information Systems Manage �`
REVIEWED BY: Mitch Tavera, Chief of Police
APPROVED BY: Greg Carpenter, City Manager
BACKGROUND AND DISCUSSION:
Prior to 2011, each department individually managed the replacement of desktop and laptop
computers. Computers were individually purchased leading to a disjointed environment of
systems and software. During the spring 2011 strategic planning session, City Council approved
the development of a Computer Purchase Refresh Program. Beginning in 2012, Information
Systems consolidated the management of desktops and laptops throughout the City. A $384.00
service charge per system is designated for each department in the general fund for this multi-
year program. This program is designed to fund the acquisition, maintenance and management
of the city's computer systems.
Staff recommends City Council authorize the appropriation of existing designated funds accrued
in prior fiscal years to purchase computer hardware, software and peripherals for use at City
facilities in an amount not to exceed $230,600.00.
187
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EL SEGUNDO CITY COUNCIL MEETING DATE: March 18, 2014
AGENDA STATEMENT AGENDA HEADING: Consent Agenda
AGENDA DESCRIPTION:
Consideration and possible action to approve a contract amendment to increase the
budget for DownStream Services, Inc. for pump station on -call and emergency repair
services in the 2013 -14 Fiscal Year. Project No. PW13 -12 (Fiscal Impact: 40,000.00)
RECOMMENDED COUNCIL ACTION:
1. Authorize the City Manager to execute a contract amendment, in a form approved by
the City Attorney, with DownStream Services, Inc. to increase the budget for pump
stations on -call repair services in the 2013 -14 Fiscal Year.
2. Alternatively, discuss and take other possible action related to this item.
ATTACHED SUPPORTING DOCUMENTS:
None
FISCAL IMPACT:
Amount Budgeted: $90,000 annually for five (5) years
Additional Appropriation: Yes
Account Number(s): $40,000 from 502- 400 - 4301 -6206 (Sewer Enterprises Fund:
Contract Services)
ORIGINATED BY: Lifan Xu, Principal Civil Engineer Z % 6o'
REVIEWED BY: Stephanie Katsouleas, Public Works Director
APPROVED BY: Greg Carpenter, City Manager,,
BACKGROUND AND DISCUSSION:
The Wastewater Division has nine (9) sewer and three (3) storm water pump stations, which
require routine maintenance and servicing to ensure smooth operations. The City secures vendor
services for this routine maintenance as well as for unexpected and emergency repairs. The
Water Division also has one booster pump station that requires service in the event of
unexpected or emergency repairs.
In September 17, 2013, City Council awarded a five -year Public Works Maintenance and On-
Call Repairs Contract to DownStream Services, Inc., with a not -to- exceed budget of $90,000
annually for maintenance and on -call repair services for sewer and storm water pump stations,
and the Water Division's booster pump station. To date, $76,416 has already been encumbered
for pump stations maintenance and on -call repairs, mainly due to responding to deferred repairs
needed in the previous fiscal year. The remaining balance is now only $13,584 with more than
half of the fiscal year still remaining.
LanD
1
189
To keep the pump stations functioning as designed and to avoid preventable breakdowns, staff is
now requesting authorization to preemptively amend the DownStream Service, Inc.'s contract for
an additional $40,000. This would allow staff to immediately respond to additional emergency
repair services should they be needed over the remainder of the budget year and exceed the
balance remaining. There is sufficient funding available in the Sewer Enterprise Fund to cover
the additional cost. Any on -call funds not utilized annually will be disencumbered and
available to the Water and Sewer Enterprise Fund accordingly.
2
190
EL SEGUNDO CITY COUNCIL MEETING DATE: March 18, 2014
AGENDA ITEM STATEMENT AGENDA HEADING: Consent Agenda
AGENDA DESCRIPTION:
Consideration and possible action regarding awarding contract to Big West Construction
Corporation for construction at 26 homes related to Project No. RSI 14 -01 (Group 51 of the City's
Residential Sound Insulation Program)
(Estimated construction costs and retention $1,286,947.00)
RECOMMENDED COUNCIL ACTION:
1. Waive minor irregularities in the bid from Big West Construction Corporation;
2. Award contract to Big West Construction Corporation for project RSI 14 -01 (Group 51);
3. Authorize the City Manager to execute a contract in a form approved by the City Attorney;
and/or
4. Alternatively, discuss and take other action related to this item.
ATTACHED SUPPORTING DOCUMENTS:
1. Bid Log
2. Bidder's Proposal and Statements submitted by Big West Construction Corporation
FISCAL IMPACT: Included in Adopted Budget
Amount Budgeted: $12,000,000.00
Additional Appropriation: N/A
Account Number(s): 116 - 400 - 0051 -8960 (RSI Program Construction)
PREPARED BY: Thomas Gray, Construction Coordinator
REVIEWED BY: Sam Lee, Director of Planning = t ci Building Safety
APPROVED BY: Greg Carpenter, City Manager
BACKGROUND & DISCUSSION:
On February 25th, 2014 the City Clerk's office opened bids for Project RSI 14 -01 (Group 51 of the
City's Residential Sound Insulation (RSI) Program). Two (2) bids were submitted, and the results are as
follows:
Big West Construction Corporation $ 1,169,952.00
Karabuild Development, Inc. $ 1,259,920.00
The bid submitted by Big West Construction Corporation appears responsive.
The amount requested for the contract is $1,286,947.00 which represents the amount of Big West
Construction Corporation's bid of $1,169,952.00 and an additional 10% for contingencies.
Construction is scheduled to start July 7th, 2014 and complete by September 10h, 2014, with
Contractor Site Evaluations scheduled for April 14th —18th
City Council is reminded that eighty percent (80 %) of the costs associated with the Residential Sound
Insulation Program are covered by the federal grant funding from the Federal Aviation Administration
191
(FAA). This remains a funding source until those funds identified in the Grant Implementation Plan to
the City of Los Angeles are exhausted. Remaining expenses, except for elective "Owner Upgrades"
selected by property owners, are paid for by funding received as part of the settlement agreement with
Los Angeles World Airports (LAWA).
192
CITY OF EL SEGUNDO
BIDIRFP LOG
BID NO. #RSI 1401
City of El Segundo
Residential Sound Insulation Group 51
Date of BID Opening: Tuesday, February 25, 2014
Time of BID Opening: 11 A.M.
Place of BID Opening: Ci Clerk's Office
CC3] IPAIIWY.'.X+1+ 11E1�4 t 33E s f..
s:. 3 .. 'Tn a A1D Amount ;.
Big West Construction Corp.
95331 Normandie
Irvine, CA 92604
2.
Karebuiid Development, Inc.
17337 Ventura Blvd. #215
Encino CA 91316
! 5�, 9 --i-D °
3.
4.
5.
6.
7.
8.
9.
10.
Staff Present:
FORMSOMOPENI
City Clerk's Office
City Clerk's Office
RSI, Representative
193
EST
CONSIMUCTION
-, RP O TION
Submittal Cover Sheet
Submittal #1
Bidders Proposal and Statement Form
To: City of El Segundo Date: 2/21/2014
Attn: Tom Gray RE: 14 -01 Group 51
Residential Sound Insulation Program
333 Main Street
El Segundo, CA 90245 — — -
Applicable Sections: Section 01 33 00 (Submittal Procedures)
Section 00 5100 ( Award and Execution of Contract)
Prepared By:
Big West Construction Corporation
15331 Normandie Ave.
Irvine, CA 92604
(949) 795 -2219
Fax (949) 451 -1506
bigwestconst@aol.com
Are there any requirements of the Contract Documents that would not be met by using
this information:
M•
❑ Yes (If yes, Describe -what requirements
would not be met, and why you
feel the product(s) should
be used despite this fact)
Total Number of Pages Included in this Submittal:
1, as Superintendent for Big West Construction Company, have
personally reviewed the attached documentation and certify that the product(s) that it
represents meets or exceeds all applicable requirements of the contract documents.
Superintendent is capable of answering questions regarding theinformation in this
submittal. _-A r -
Superinteddent Signature
194
City of El Segundo
s Residential Sound Insulation Program
RS1 14 -01 (Group 51)
To the Mayor and City Council
City of El Segundo
350 Main St.
El Segundo, CA 90245
I declare, under penalty of perjury, that I have carefully examined, become familiar with, and
understand all of the requirements of the Contract Documents and conditions under which the
Work must be performed, including the City of El Segundo's current Municipal Code. and am
fully informed as to all conditions and matters which can in any way affect the Work or its cost,
and agree to the following;
To perform all Work in strict conformity with the requirements of the Contract Documents for
Project Number RSI 14 -01
"Residential Sound Insulation Program -•- Group 5F
at the following, lump sum riC '
RSI
Staff
RS1
Owner
Property
ID
Pro erty Address
Description
Estimate
1m rovements
U rades
Sub -Total
+
51.01
955 Virginia Street
RS1
Improvements
1 Sr
a,4ux 4
$ y 7 S
Door C
$200
'Y h
$ 44 ® c7
i
L` ade
a ,�
51.02
630 West Walnut Avenue
RS1
Improvements
$37,145
$
$ T71 iql
51.04
640 West Walnut Avenue
Rn I
$22'1
S
rovements
51.04
211 West Walnut Avenue
RSI
$21,955
$, '9 e2_11
$c�►l2�
Improvements
RSI
$31,691
$ L1 9 4 9
;
" w
51.05
302 West Walnut Avenue
Improvements
1
$ * 4e.,0$
Door
U grade
$200
$ 00
51.05
918 Pepper Street
RSI
$29.335
$ *3% 10 4 L(
Im rovements
51.07
_
F313 East Walnut Avenue
Improvements
$50,3.4:1
$
51.08
�...
1017 East Walnut Avenue
RSI
itn
$25,$30
$ ��' 4Q
'N'
'`��
$ -? Cl S4 0
rovements
51.09
908 Lomita Street
RSI
$57,400
$y�
Improvements
RSI
Im rovements
$36,065
$ �,�
/
51.10
800 McCarthy Court
r
51.11
818 Main Street, Unit 102
lrovements
$19,240
$ 2_9,V41
¢;
29, 99'1
X n
Bidding Form Ala aB� Last Modified: January 23, 2014
Bidder's Proposal and Statement
195
City of El Segundo
Residential Sound Insulation is ogram
x �
ro
RST 14 -01 (Group 51)
Bidding Form - Appendix B -0 Last Modified: January 23.2014
Bidder's Proposal and Statement �----
196
ItSI
Improvements
$31,460
$ t4 41
51,12
632 West Maple Avenue
Door A
;:
?!�
Upgrade
$200
$ OC3
_
51.13
429 West Oak Avenue
RSI nts
Itn roveme
$24,165
$13� q.-0,5-
:
51.14
414 West Oak Avenue
RSI
$3'7,095.
$ ?�$ 5� t
�� '
$ �j,�" SL
Improvements
r
i
RSI
$34,350
$ S 5t 4Aq
t,
51.15
717 Virginia Street.
h�rovetnents
$
Door
S'200
lwl
$00
U}�grade
..
51.16
623 Whiting Street
_ _
ImSprovetnents
$29,860
%4-7141A
f`
$47
1 -1
51.17
537 West Mariposa Avenue
RSI.
hnprovernents
$24 320
$ °;fo �$1
1
� ' R
' R
$1(9
$1(9114017
51.18
656 West Mariposa Avenue
� RSI
Irn rovements
$z$A45
$ 4 � �1' 0
+
$ {„� � 1ra�'C�
,r
$ 31 S
51.19
430 Loma Vista Street
RSI
Improvements
'$39;190 : .:
$ �j j $
RSI
Improvements
$21,535
k310^,�C,
51.20
515 Standard Street
$
Door
-
Upgrade
$2,404
$ I f 00
#
51.21
507 Eucalyptus Drive
RSI
Improvements
$31,070
$.L+ b '��.'`
r
., $ W fQ
51.22
538 Eucalyptus Drive
RSI
Improvements
$28,400
$ Iq `1� L4 O $ Z Oct
! 4 J
k51,23
619 Bungalow Drive
RSI
n Irovements
$31,540
$ 14 (p� Z $ L4 to) VI,1
51.24.
7?0 Bungalo:;, t?rive -
RSI
Improvements
11 : $ s .
/ 1
51.25
748 Center Street
nprovetnents
$25,350
$
51,26 1547 East Palm Avenue
RSI
$33,0170
r
RSIi Owner
Improvements L7pgrades
Subtotal Subtotal
�.r -
�
A��
� 1;�bb,�#s2
� 3 ►Soo
��
Bidding Form - Appendix B -0 Last Modified: January 23.2014
Bidder's Proposal and Statement �----
196
City of El Segundo
Residential Sound insulation Program
RS1 14 -01 (Group 5 1)
ONE 'KtLu kom Owe t4u
Total Bid (Contract Sum)
( ,A,ords)
AAA WIWE
s I fgct, 145 2. , ©co
(figures)
In case ofdiscsrevanev between the words and fiRures, the words must prevail.
Contractor Representative:
Y
Slglatuly Date
Name (printW or typed)
Title: L m -. — —
Name of Firm:
Address: t` 3 3 1
Telephone Number:
Contractor's State License Number:
r
License Expiration Date:
Type of Entity: F-1 Sole Proprietorship E] Partnership Q Coiporation* ❑ Other
7
F,
* if .<, orploration, evidence of authority to sign ml�st be attached
Bidding Form Appendix B -01 Last Modified: January 23. 2014
Bidder's Proposal and Statement`
4/ t
197
EL SEGUNDO CITY COUNCIL MEETING DATE: March 18, 2014
AGENDA ITEM STATEMENT AGENDA HEADING: Consent Agenda
AGENDA DESCRIPTION:
Consideration and possible action regarding a request from the El Segundo PTA Council to waive fees
for the use of City resources and staff time associated with their Run for Education event on April 26,
2014. (Fiscal Impact: $13,040.32)
RECOMMENDED COUNCIL ACTION:
1. Approve /Deny the request from the El Segundo PTA Council to waive fees for the use of City
resources and staff time associated with their Run for Education event.
2. Alternatively, discuss and take other action related to this item.
ATTACHED SUPPORTING DOCUMENTS:
1. Memo from the El Segundo PTA Council
2. Run for Education Event Race Routes
3. Site Plan for Library Park
4. Estimated Fees for City Equipment
FISCAL IMPACT: $13,040.32
Amount Budgeted: $0
Additional Appropriation: $10,772.58
Account Number(s): 001 - 400 - 3104 -4101 ($961.48) Police
001 - 400 - 3102 -4103 ($977.96) Police
001 - 400 - 3104 -4103 ($4,881.76) Police
001- 400 - 4202 -4103 ($2,810.90) Public Works
001 - 400 -5102 -4103 ($1,140.48) Parks
PREPARED BY: Jackie Day, Administrative Specialist --W
REVIEWED BY: Bob Cummings, Director of Recreation and Parks
APPROVED BY: Greg Carpenter, City Manager„
BACKGROUND & DISCUSSION:
In previous years, fees for the El Segundo PTA Council's Run for Education event have been waived as
a part of the Special Event Fee Waiver list approved by City Council, which expired at the end of 2013.
At the December 3, 2013 City Council meeting an agenda item was presented before City Council for
discussion and action for the continuation or revision of waived fees associated with special events that
have previously been granted fee waivers. At that time, City Council formed a Subcommittee to review
the process of waiving fees and to make recommendations regarding the extent to which fees will be
waived going forward. The Subcommittee has not yet finalized a recommendation on this item.
On April 26, 2014, the El Segundo PTA Council is hosting their Run for Education event, which
includes a IOK Run and a 5K, 1K, and 1 /2K Walk/Run.
10
im
The El Segundo PTA Council is planning to use Library Park to serve as a post -race expo area to
include amplified music, food, and vendors.
The El Segundo PTA Council has completed and submitted the required City of El Segundo Special
Event Use Permit Application for the use of Library Park and the City Streets included in the race routes
and has requested the City to provide the following;
■ 19 Tables
■ 120 Chairs
• 12 Canopies
The total fiscal impact of the event is $13,042.32. Of the fiscal impact, $2,267.74 is comprised of
equipment rental value, facility reservation fees and permit fees. The requested additional appropriation
of $10,772.58 is for staffing only.
Staffing cost for the event is $10,772.58 which includes $6,821.20 for the Police Department for street
closures and traffic control, $2,810.90 for Public Works to hang No- Parking signs and to place /pick -up
barricades, and $1,140.48 for Parks staff to deliver /pick -up tables, chairs, and canopies.
Additional City charges include $200.00 for the rental of Library Park, $135.00 for the Amplified Sound
Permit, and $178.00 for the Banner Permit.
While there is not an established fee structure for the use of City equipment, staff estimates the value of
the requested City property for this event to be $1,754.74
199
2014 has a seen a number of changes for the Run for Education. Some planned, some not.
We've worked with the City and Police to ensure our course impacts fewer residents this year by
redrawing the 10K course to be a truer double loop and look to distribute road closure notices to every
household on the eastside of town. These flyers will provide a clear map of the event, exact time the
streets will be closed to traffic, and suggested alternate routes in and out of the city. Contact info for the
Run and the Police will also be included.
We also quickly moved to reschedule our event once we were informed by the Police there was a
conflict with our original date. While our event has moved around a bit in the past from February,
March, and even April due to timing with the LA Marathon, Easter, and Spring Break we've never
previously encountered nor expected a conflict would arise from an additional source that would so
greatly impact the operations of our Run. With an event that now is marketed well in advance of the
date it's vital things go smoothly.
As an Event that not only gives so much back to El Segundo via both directly to the schools and indirectly
to the local businesses by promoting our town we've shown we are a good neighbor. We were asked to
change a number of elements with our Run and have taken on the additional expenses to cover them.
This includes the development and rollout of the flyer distribution to ensure the community is informed,
reworking of our course to impact less residents, change of event date, and the closer interaction with
various City departments to keep communication open and plans for the Event transparent.
With the increase in effort on both sides and the associated unplanned expenses already incurred we do
respectfully request a waiver of all City fees. Our event is Non - Profit, ALL PROCEEDS are returned to the
El Segundo Unified Schools, and is 100% volunteer operated. The proposed amount of roughly $10,500
is not just a dollar amount for us but represent 20% of all proceeds from last year's event. That
translates into 20% less busses for field trips, 20% less computers and equipment, and overall 20% less
students, teachers, and programs we can directly support at all the schools.
Please allow us to continue to direct the majority of funds raised to where they are needed most..... Our
Schools.
Kindly,
Carlos Donahue
Race Director
El Segundo Run For Education 5K /10K
200
COURSE MAP
E Maple Ave
E Maple Ave .�
E Oak Ave E Oak Ave
1'1s, F1 Segundo r
E Palm Ave I! High 90100.1' o
® N
E Mariposa Ave
E Pine Ave
K
E Pine Ave _
Park,
E Holly Ave
n c
N O
O N
N
E Grand Ave
E Walnut Ave
N � m
v o
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_ n
rn co
m
r.
er
3 y
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N rn rn n
w
11 �f I
E Mariposa Ave
E Mariposa Ave
O n
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a o
e 3
N
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m �
0 0 K }
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t
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Q
SFGUNDO EDUCATION
!y
N
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(n
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Water
Station
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Station
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er
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N rn rn n
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E Mariposa Ave
E Mariposa Ave
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a o
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m �
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!y
N
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COURSE MAP
E Maple Ave
E Maple Ave
m
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0
E Palm Ave
IL
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41 Park
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M
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E Madpass Ave
z
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r.
E Pine Ave
E Oak Ave
El Segundo in
High School i
0
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w
E Pine Ave
E Mariposa Ave
E Walnut Ave
CL Q 0
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(D
9
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E Palm Ave
came/ St.
Ejeflientoiry
E Mariposa Ave
z 0 0
3
FOP
E U N D PuNEDUCATION
START On Main St, north of Palm Ave
MILE I On Center St, north of Grand Av
ILEA On Center�St .oiat of ,. a I e 4v
Mile
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0
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E Holly Ave
O
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E Grand Ave
E Grand Ave
FOP
E U N D PuNEDUCATION
START On Main St, north of Palm Ave
MILE I On Center St, north of Grand Av
ILEA On Center�St .oiat of ,. a I e 4v
Mile
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Station
Aid
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Restrooms
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COURT
E Oak Ave
Mile
E Oak Ave
�
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El Segundo
High School
palm Ave
Station
Restrooms
�j Library
TTr Park
C1
Park
E Mariposa Ave
7MariposaAve
N
E Pine Ave
E Pine Ave
41
1 r
N
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E Holly Ave
m°
a
Cr Park
H
E Holly Ave
N
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E Grand Ave
RSE MAP
E Oak Ave
Mile
Water
Station
C]
Aid
E Palm Ave
Station
Restrooms
RSE MAP
E Oak Ave
E Oak Ave
®
✓�
El Segundo
High School
E Palm Ave
h d (d
.:. rk
C]
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7MariposaAve
IL
E Pine Ave
m
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E Holly Ave
3
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E Grand Ave
SL
= GUNDOROREDUCATION
r i
r
203
h d (d
203
34 35 36 37
O
a
n
r
6
a
t
F El Segundo
Public Library
r ii T : `
m
N
9-
N
0o
N
O
N
r
O
M
N
CL
M
Dry
cn
Ln
L
Stage
O
a
n
r
6
a
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F El Segundo
Public Library
r ii T : `
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30 31 32 33 N V►
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N Library Park
A
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M
St9 lb
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��
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o
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CD
Parking
W Mariposa Ave
First Aid
Parking
V V
N
Starting m S
Line a
Ln
Cn
C
�E
I-=
5K/1 OK
Finish Line
2
L L
H
m
Fun Run
Start/FiRM4
Estimated Cky Staff Char es
Libra Park Rental Fee
Police Department Staff
Amplified Sound Permit
$6,821.20
Public Works Staff
$178.00
$2,810.90
Parks Staff
Total
$1,140.4$
El Segundo TV coverage
No Ch
Total
Total
$10,772.58
Established City Fees
Libra Park Rental Fee
$200.00
Amplified Sound Permit
$135.00
Banner Permit
$178.00
Truck - Public Works
$1,028.64
Total
$513.00
El Segundo TV coverage
No Ch
Estimated Value
19 Tables
$150.10
120 Chairs
$96.00
12 Canopies
$460.00
Truck - Public Works
$1,028.64
Event posted on City website
No Ch
El Segundo TV coverage
No Ch
Total
$1,754.74
Totals
Estimated Ci Staff Char es
$10,772.58
Established City Fees
$513.00
Estimated Value
$1,754.74
Total
$13,040.32
205
EL SEGUNDO CITY COUNCIL MEETING DATE: March 18, 2014
AGENDA ITEM STATEMENT AGENDA HEADING: Mayor Bill Fisher
AGENDA DESCRIPTION:
Consideration and possible action to support the Advanced Manufacturing Partnership for Southern
California ( "AMP SoCal ") response to the 2014 Investing in Manufacturing Communities
Partnership (IMCP) notice. (Fiscal Impact: None)
RECOMMENDED COUNCIL ACTION:
1. Approve the letter of support:
2. Alternatively, discuss and take other action related to this item.
ATTACHED SUPPORTING DOCUMENTS:
Support Letter
FISCAL IMPACT: $
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s):
PREPARED BY: Misl-�a Jennings, Executive Assistant+
REVIEWED BY: Bill Fisher, Mayor
APPROVED BY: Greg Carpenter, City Manager„,
BACKGROUND & DISCUSSION:
The counties of Los Angeles, Orange, and San Diego are applying to receive a federal manufacturing
community designation in aerospace, defense and their supply chains. It is a competitive application and
only 12 communities are selected nationally. Receiving this designation would mean a lot to all three
counties and their manufacturing sectors and would provide preferential consideration on $1.3 billion in
federal funding.
AMP SoCal is a partnership of Los Angeles, Orange, and San Diego Counties in the aerospace and
defense industries and their supply chains with the explicit mission to increase the quality and number of
high- skilled next generation advanced manufacturing jobs.
Key public and private institutions and organizations from the economic, business, and workforce
development and education sectors from Los Angeles, Orange, and San Diego Counties along with a
growing list of cities have come together to collaborate in response to the Obama Administration's 2014
Investing in Manufacturing Communities Partnership (2014 IMCP). These organizations have joined
together as the Advanced Manufacturing Partnership for Southern California (AMP SoCal).
The mission of the Advanced Manufacturing Partnership for Southern California (AMP SoCal) is to
increase the quality and number of high- skilled, next generation, advanced manufacturing jobs in the
region. The industry focus for the 2014 IMCP application is aerospace and defense and its supply chain
206
of small and medium -sized manufacturers. The following strategic investments in the industrial
ecosystem are planned to make the region uniquely competitive and lead the way for the nation.
• A Concierge Service for domestic and foreign manufacturers looking to invest in the region
• Accessible Smart Manufacturing Platform linking manufacturers to their supply chain
• Technical assistance to adopt advanced manufacturing technologies, increase exports, and reduce
regulatory hurdles
• Cutting -edge education and workforce training for high- skilled occupations
• Innovative development of new products and businesses
• State -of- the -art infrastructure (smart/green buildings) for new manufacturing, research and
development, and supply chain investments
• Recruit veterans, the unemployed, and young adults for manufacturing training programs
207
Elected Officials:
Bill Fisher,
Mayor
Carl Jacobson,
Mayor Pro Tem
Suzanne Fuentes,
Council Member
Dave Atkinson,
Council Member
Marie Fellhauer,
Council Member
Tracy Weaver,
City Clerk
Crista Binder,
City Treasurer
Appointed Officials:
Greg Carpenter,
City Manager
Mark D. Hensley,
CftyAttomey
Department Directors:
Deborah Cullen,
Finance
Kevin Smith,
Fire Chief
Martha D jkstra,
Human Resources
Debra Brighton,
Library Services
Sam Lee,
Planning 8
Building Safety
Mitch Tavera,
Police Chief
Stephanie Katsouleas,
Public Works
Robert Cummings,
Recreation 8 Parks
www.elsegundo.org
March 11, 2014
WA
Economic Development Administration
Office of Performance and National Programs
U.S. Department of Commerce
1401 Constitution Avenue, NW, Suite 71030
Washington DC 20230
Office of the Mayor
Re: Advanced Manufacturing Partnership for Southern California ( "AMP SoCal ")
Dear 2014 Investing in Manufacturing Communities Partnership Review team:
The City of El Segundo respectfully urges your support of the Advanced Manufacturing Partnership for
Southern California ( "AMP SoCal ") response to the 2014 Investing in Manufacturing Communities
Partnership (IMCP) notice.
As a regional economy, the three - counties of Los Angeles, San Diego and Orange boast tremendous
assets in aerospace and other defense - related industries. While it is a fact that the three counties have
high comparative employment concentrations (and thus strength) in these industries, the region also
benefits from the deep and long- standing structures and partnerships in place to attract, retain, and
expand manufacturing investment. These three counties bring together and mobilize world - leading
research and innovation capacities; expert infrastructure and site development know -how; decades -
long workforce development and job training proficiencies; deep supplier networks; unrivaled trade and
international investment capacities; and operational improvement, logistical support and capital access
expertise in the aerospace and defense industries. Together, the apt combination of strong systems
and processes in place to deliver on manufacturing strategies and high employment concentrations
make the region an ideal fit for a "manufacturing community" designation.
Since the overarching goal of IMCP is to "accelerate the resurgence of manufacturing in regions across
the country," these three counties of Los Angeles, San Diego, and Orange are unique in that the
diversity and innovation that exists in aerospace and defense here directly impacts and supports
numerous other sectors (such as medical devices and information technology) that draw from and rely
on its deep labor pools, intellectual property portfolios, highly advanced manufacturing and assembly
bases, and thick supplier networks. As such, an "AMP SoCal" designation would prove to benefit
more than just the aerospace and defense industry clusters and would also help to catalyze and
drive future manufacturing innovation and production investment as well as spur economic growth and
prosperity across our diverse and complex nation -sized economy.
I urge your favorable consideration of the Advanced Manufacturing Partnership for Southern California,
and please do not hesitate to contact me should you have any questions.
Sincerely,
Bill Fisher
Mayor
350 Main Street, El Segundo, California 90245 -3813
Phone (310) 524 -2302 FAX (310) 322 -7137
1: