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2015 Jun 16 - 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, JUNE 16, 2015 — 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 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): -2- matter 1. City of El Segundo vs. City of Los Angeles, et.al. LASC Case No. BS094279 2. Penuelas vs. City of El Segundo, LASC Case No. BC523072 CONFERENCE WITH LEGAL COUNSEL — ANTICIPATED LITIGATION Significant exposure to litigation pursuant to Government Code §54956.9(d) (2) and (3): -1- matter. Initiation of litigation pursuant to Government Code §54956.9(c): -1- matter. DISCUSSION OF PERSONNEL MATTERS (Gov't Code §54957): -0- matter APPOINTMENT OF PUBLIC EMPLOYEE (Gov't. Code § 54957): -0- matter PUBLIC EMPLOYEMENT (Gov't Code § 54957) -0- matter E CONFERENCE WITH CITY'S LABOR NEGOTIATOR (Gov't Code §54957.6): -8- matters 1. 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) Agency Designated Representative: Steve Filarsky and City Manager CONFERENCE WITH REAL PROPERTY NEGOTIATOR (Gov't Code §54956.8): -0- matters 3 3 AGENDA EL SEGUNDO CITY COUNCIL COUNCIL CHAMBERS - 350 Alain 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, JUNE 16, 2015 - 7:00 P.M. 7:00 P.M. SESSION CALL TO ORDER INVOCATION — Rev. Dina Ferguson, St. Michael Episcopal Church PLEDGE OF ALLEGIANCE — Mayor Pro Tern Jacobson L, M 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 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. 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 1. Consideration and possible action to review and provide direction on proposed code amendments regarding additional water conservation measures called for by Governor Brown's Executive Order and the State Water Resources Control Board emergency regulations, adopted on May 5, 2015. (Fiscal Impact: Final Contract Amount: None) Recommendation — 1) Receive this report regarding the severe drought facing California and Governor Brown's recent Executive Order; 2) Provide direction to staff regarding a proposed amendments to El Segundo Municipal Code Chapter 10 -5 to incorporate into the City's Water Conservation measures those additional measures called for in Governor Brown's Executive Order and the State Water Resources Control Board emergency regulations, adopted on May 5, 2015; 3) Alternatively, discuss and take other possible action related to this item. 5 6i 2. Rescission of Brown Act Commitment - In Accordance with Government Code Section 54960.2 (e), consideration and possible action to rescind the commitment made by the City Council on November 5, 2013, not to hold further closed session meetings regarding real property negotiations with regard to ES CenterCal, LLC's ( "CenterCal ") proposal to enter into a Due Diligence and Ground Lease Agreement ( "Agreement ") to lease the driving range portion of the Lakes Golf Course from the City for the purpose of developing a Top Golf facility. (Fiscal Impact: unknown — depends on whether legal proceedings are commenced.) Recommendation — 1) Consideration and possible action to rescind the commitment made by the City Council on November 5, 2013, to not hold further closed session meetings regarding real property negotiations with regard to CenterCal's proposal to enter into an Agreement to lease the driving range portion of the Lakes Golf Course from the City for the purpose of developing a Top Golf facility; 2) Delay consideration of this item to a future date and give notice of such delay to Ms. Geist in accordance with Government Code Section 54960.2; 3) Alternatively, discuss and take other possible action related to this item. 3. Consideration and possible action to provide preliminary comments and receive and file the draft Due Diligence and Lease Agreement between the City of El Segundo and CenterCal, LLC, with regard to the operation of a Top Golf facility on the driving range portion of the Lakes golf course and redesign of the golf course. (Item will be brought back for further discussion and possible action at a future Regular or Special Council Meeting). (Fiscal Impact: None) Recommendation — 1) Consideration and possible action to provide preliminary comments and receive and file draft Due Diligence and Lease Agreement between the City of El Segundo and Centercal, LLC; 2) Schedule a date for further consideration and possible action regarding the draft Due Diligence and Lease Agreement; and /or take other related action. Rescission of Brown Act Commitment. D. REPORTS OF COMMITTEES, COMMISSIONS AND BOARDS 4. Consideration and possible action to announce the appointments to the Capital Improvement Program Advisory Committee (CIPAC). (Fiscal Impact: None) Recommendation — 1) Announce the appointees to the Capital Improvement Program Advisory Committee (CIPAC), if any; 2) Alternatively, discuss and take other action related to this item. m C: 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. 5. Warrant Numbers 3006307 through 3006490 on Register No. 17 in the total amount of $678,314.78 and Wire Transfers from 5/18/2015 through 5/31/2015 in the total amount of $956,573.37. Recommendation — Approve Warrant Demand Register 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. 6. Regular City Council Meeting Minutes of June 2, 2015.] Recommendation — Approval. 7. Consideration and possible action regarding a two -year renewal of the cost sharing agreement in a form approved by the City Attorney with the City of Redondo Beach for operation of Beach Cities Transit (BCT) Line 109 for FY15/16 and FY16/17, in conjunction with the cities of Hermosa Beach, Redondo Beach, and Manhattan Beach. (Fiscal Impact: $36,363 for FY15/16 and not to exceed $45,454 for FY16/17 Proposition C funds) Recommendation — 1) Approve the two -year renewal of the cost sharing agreement with BCT for operation of Transit Line 109; 2) Authorize the Mayor to execute Transit Service Operation Agreement in a form approved by the City Attorney; 3) Alternatively, discuss and take other action related to this item. 8. Consideration and possible action regarding adoption of a Resolution appointing City Council Member Mike Dugan, Interim Director of Finance Misty Cheng, and Acting Fiscal Service Manager Trang Nguyen, or designee to serve as board member, alternate board member, and substitute alternate board member on the Independent Cities Risk Management Association (ICRMA) governing board. Fiscal Impact: Final Contract Amount: None)_ Recommendation — 1) Adopt Resolution appointing City Council Member Mike Dugan, Interim Director of Finance Misty Cheng and Acting Fiscal Services Manager Trang Nguyen or designee to serve as a board member, alternate board member, and substitute alternate; 2) Alternatively, discuss and take other action related to this item. 7 7 9. Consideration and possible action to adopt an ordinance updating the El Segundo Municipal Code regulating the preferential parking program, specifically extending the permit renewal duration. (Fiscal Impact: None) Recommendation — 1) Second reading by title only and adopt Ordinance Number 1507 amending Sections 8 -5A -7 subdivision (B) of the El Segundo Municipal Code regarding preferential parking permit renewal duration; 2) Alternatively, discuss and take other action related to this item. 10. Consideration and possible action to adopt a resolution approving the release a covenant to hold property as one parcel at 228 and 238 Nevada Street and the release of an agreement that allowed construction of a building over a portion of a City sewer easement at 235 and 239 Oregon Street. Applicant: Smoky Hollow Partners, LLC. (Fiscal Impact: None) Recommendation — 1) Adopt the proposed Resolution approving the release a March 28, 1969 covenant to hold property as one parcel at 228 and 238 Nevada Street and release an October 5, 1967 agreement that allowed construction of a building over a portion of City sewer easement located at 235 and 239 Oregon Street, and directing staff to prepare and execute documents to affectuate such releases; and /or 2) Alternatively, discuss and take other possible action related to this item. 11. Consideration and possible action to authorize the City Manager, or designee, to record the Notice of Completion accepting completion of work for twenty -five (25) homes related to Project RSI 14 -16 (the City's Residential Sound Insulation Program's Group 60). (Fiscal Impact: Final Contract Amount: $751,114.95) Recommendation — 1) Authorize the City Clerk to file the City Manager's, or designee's, Notice of Completion in the County Recorder's Office; 2) Authorize the City Manager, or designee, to close out Project No. RSI 14 -16; 3) Authorize the RSI Program Manager to sign the Title 21 Compliance Certificates in accordance with the requirements of the grant funding from Los Angeles World Airports (LAWA) and mail originals to LAWA; 4) Alternatively, discuss and take other action related to this item. N. FQ 12. Consideration and possible action to 1) approve an amendment with J. Cab & Sons for $59,867.58; 2) accept as complete the City Hall Roof Repairs project; and 3) authorize the City Clerk to file a Notice of Completion in the County Recorder's Office for Project No. PW 13 -05 (Fiscal Impact: $388,867.58) Recommendation — 1) Authorize the City Manager to execute a contract amendment with J. Cab & Sons, in a form as approved by the City Attorney, for $59,867.58; 2) Accept the work on the City Hall Roof Project as complete; 3) Authorize the City Clerk to file a Notice of Completions in the County Recorder's Office for Project No. PW 13 -05. 4) Alternatively, discuss and take other possible action related to this item. 13. Consideration and possible action to 1) award a standard Public Works Contract to Ramona, Inc. for Water Main Improvement at Virginia, Oak and Bayonne, Project No. PW15 -08; 2) award a standard Public Works Professional Services Agreement to AKM Consulting Engineers for construction inspection services; 3) approve an additional appropriation of $577,552.00 from Water Enterprise Fund for water main improvements. Project No.PW15 -08 (Fiscal Impact: $1,527,552.00) _ _ Recommendation — 1) Waive minor irregularity in the bid from Ramona, Inc. and authorize the City Manager to execute a standard Public Works Contract, in a form approved by the City Attorney, with Ramona, Inc. in the amount of $1,221,566.00 and approve an additional $183,235.00 for construction - related contingencies; 2) Authorize the City Manager to execute a standard Public Works Professional Services Agreement in a form as approved by the City Attorney with AKM Consulting Engineers in the amount of $112,751.00 for construction inspection and geotechnical (compaction) oversight and testing, and approve an additional $10,000.00 for related contingencies; 3) Approve an additional appropriation of $577,552.00 from Water Enterprise Fund for water main improvements; 4) Alternatively, discuss and take other possible action related to this item. 14. Consideration and possible action to receive and file this report regarding emergency work to repair dwelling units at the Park Vista Senior Housing Facility due to water intrusion without the need for bidding in accordance with Public Contracts Code §§ 20168 and 22050 and El Segundo Municipal Code ( "ESMC ") §§ 1 -7 -12 and 1 -7A-4. Fiscal Impact: $50,000.00) Recommendation — 1) Receive and file this report regarding emergency work to repair dwelling units at the Park Vista Senior Housing Facility due to water intrusion without the need for bidding in accordance with Public Contracts Code I §§ 20168 and 22050 and El Segundo Municipal Code ( "ESMC ") §§ 1 -7 -12 and 1- 7A-4; 2) Alternatively, discuss and take other action related to this item. 15. Consideration and possible action regarding the formation of a Golf Course Design Task Force to advise Top Golf during the development phase of their proposed project at The Lakes at El Segundo. (Fiscal Impact: $0) Recommendation — 1) Approve the formation of the Golf Course Design Task Force based on recommendations from the Golf Course Subcommittee; 2) Alternatively, discuss and take other action related to this item. 16. Consideration and possible action regarding 1) Approval of a resolution establishing a revised salary schedule for Senior Civil Engineer effective June 13, 2015. (Fiscal Impact FY 2014 -15: Included in the $260,400 approved by Council on June 2, 2015) Recommendation — 1) Approve the attached resolution; 2) Alternatively, discuss and take other action related to this item. F. NEW BUSINESS 17. Consideration and possible regarding the City of El Segundo's participation in the 2017 Tournament of Roses Parade. (Fiscal Impact: approximately $250,000.00) Recommendation — 1) Discuss and provide direction; 2) Alternatively, discuss and take other action related to this item. G. REPORTS — CITY MANAGER H. REPORTS — CITY ATTORNEY REPORTS — CITY CLERK J. REPORTS — CITY TREASURER K. REPORTS — CITY COUNCIL MEMBERS 10 it Council Member Atkinson — Council Member Dugan - Mayor Pro Tern Jacobson — Mayor Fuentes — 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 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. REPORT OF ACTION TAKEN IN CLOSED SESSION (if required) ADJOURNMENT POSTED: DATE: (p • ��• %5 TIME: //..00 Am NAME: Ll jt)'o 11 11 1 EL SEGUNDO CITY COUNCIL MEETING DATE: June 16, 2015 AGENDA STATEMENT AGENDA HEADING: Unfinished Business AGENDA DESCRIPTION: Consideration and possible action to review and provide direction on proposed code amendments regarding additional water conservation measures called for by Governor Brown's Executive Order and the State Water Resources Control Board emergency regulations, adopted on May 5, 2015. (Fiscal Impact: None) RECOMMENDED COUNCIL ACTION: Receive this report regarding the severe drought facing California and Governor Brown's recent Executive Order 2. Provide direction to staff regarding a proposed amendments to El Segundo Municipal Code Chapter 10 -5 to incorporate into the City's Water Conservation measures those additional measures called for in Governor Brown's Executive Order and the State Water Resources Control Board emergency regulations, adopted on May 5, 2015. 3. Alternatively, discuss and take other possible action related to this item. ATTACHED SUPPORTING DOCUMENTS: Proposed changes to Chapter 10 -5 Water Conservation State Water Resources Control Board Media Release, May 5, 2015 Adopted Text of May 5, 2015 Emergency Regulation FISCAL IMPACT: None Amount Budgeted: $0 Additional Appropriation: N/A Account Number(s): N/A ORIGINATED BY: Stephanie Katsouleas, Public Works Director REVIEWED BY: David King, Assistant City Attorney APPROVED BY: Greg Carpenter, City Manager BACKGROUND AND DISCUSSION: On April 21, 2015 staff provided City Council an overview of the actions called for in Governor Brown's April 1St Executive Order to curtail water consumption due to California's worst drought on record. Shortly thereafter, the State Water Resources Control Board approved specific emergency regulations that purveyors and cities must implement in order to achieve the State's goal of reducing urban water consumption by 25 %. Many of the actions identified by the state, as well as measures that go beyond the State's actions, are already included in El Segundo Municipal Code Chapter 10 -5, Water Conservation (Ord. 1433). The table below identifies key water conservation actions of both the State and ESMC and where they align. 1 13 x Washing down your driveway and sidewalk x x Over - watering your yard and landscaping, allowing excess water to run off x x Overspraying of landscaping Watering during the daytime. Watering is limited to 15 minutes, between 5:00 x p.m. — 9:00 a.m. unless certain irrigation devices are installed. x Watering more than twice a week. Washing any vehicle, equipment, machinery, building or structure unless the x x hose has a shut -off nozzle Using water in a fountain or other decorative water feature unless it is outfitted x x with a recirculating pump x x Serving water to patrons unless specifically requested Indiscriminately using running water which is wasteful and without reasonable x purpose Emptying pools and spas and refilling them, unless to address structural x damage or comply with public health code x Using water for irrigation within 48 hours following measurable rainfall x Watering ornamental turf on medians with potable water x Water leaks, once discovered, must be repaired within 48 hours x x Hotels must provide guest the option to reuse their towels and linens Report on water use monthly (permanently) Report on compliance and enforcement activities (new) Notify customers of leaks, if discovered (staff does this) Impose restrictions on outdoor water use (many measures already in place) Require drip irrigation or microspray for landscaping of all newly constructed homes (new) Develop a rate structure to maximize water conservation (fees, penalties, surcharges) — (in place) Based on the table above, staff identified five (5) actions called for by the State that are not currently part of the ESMC. These include: • Eliminate all washing/hosing down of sidewalks and driveways. Currently our code allows washing down sidewalks and driveways if runoff does not reach the storm drain. • Limit watering to two (2) days per week. While there are restrictions on the time of day lawns can be watered, there are no restrictions on how many days per week residents can water their lawns. • Prohibit landscape watering during and within 48 hours after predicted rainfall. The Code only restricts watering during rainfall. • Prohibit watering of landscape public street medians with ornamental turf unless using recycled water. This can easily be implemented by a change in the City's own policy. 14 * Revise the building code to allow only drip irrigation or microspray for landscaping of newly constructed homes. Our code does not currently have this requirement. City staff has attached a redline version of Chapter 10 -5 for the City Council's reference. The attached proposed revisions to Chapter 10 -5 include proposed language that will bring the ESMC into full alignment with the State's emergency regulations. One significant proposed change to Chapter 10 -5 relates to the City's existing Water Shortage Contingency Measures. Much of Southern California's population is supplied potable water by the Metropolitan Water District of Southern California ( "Met "). As such, Met is a regional leader and voice promoting water conservation during this drought. One of the consistent messages promoted by Met includes referring to water conservation actions as "stages" or" "levels," which identifies increasingly restrictive conservation measures depending on the severity of the drought. In support of this framework, Met drafted and released a model ordinance outlining the conservation actions included in each stage /level (1 -4). Many cities have since adopted water conservation ordinances /strategies that mirror Met's model ordinance language, and the news media has further promoted awareness of drought - related stages /levels. Due to its gaining momentum, staff believes there is value gained in our outreach and education efforts, as well as increased understanding among our residents and businesses, by utilizing the same references in our own declarations. Therefore, the changes proposed in Chapter 10 -5 attempt to reframe emergency actions the City Council has already been adopted into the "level" format consistent with the regional language being used. When the new media and /or others outside of El Segundo talk about the drought and reference "stages" or "levels," the framework will translate to similar actions called for by El Segundo. The stages /levels are summarized specifically in Section 10 -5 -22 of the attached proposed revisions. City Council, by resolution, would declare which stage /level the city would enforce. Conceptually, we have been in Level 1 since 2009, and would at this time increase our efforts to Level 2 to be in compliance with current state mandates. Per the state's Water Code, any changes to the City's existing Water Conservation Program must be made at a public hearing. If directed by the City Council, staff will bring back a draft ordinance amending Chapter 10 -5 for consideration and approval at a noticed public hearing in July. In the interim, staff has moved forward with various outreach strategies to encourage residential and commercial water conservation. This includes continued conservation message on water bills, the recent full page PSA in the El Segundo Herald's Recreation insert, contacting Home Water Report for a quote to send residents individualized water reports, drafting website materials and creating a dedicated page to the drought. Lastly, as reported in April, the State mandated that El Segundo reduce its potable water consumption by 20% based on our residential consumption statistics (95.4 R- GPCD). Although the State had indicated that the 20% reduction goal applies to citywide consumption (e.g., all users), it is unclear how the State Board will enforce the mandate, in particular given El Segundo's significant conservation to date, our heavy industrial and commercial need, and our large daytime population influx. Due to our unique circumstances, Staff submitted a formal request to the State Board for an alternative conservation target of 4% citywide. This represents the State's 20% reduction goal in residential consumption (20% of our users) while recognizing increases due to economic growth and recovery in our commercial and industrial sectors over the 15 past two years. As of this report, we have not heard back from the State Board. Staff will continue to closely monitor our consumption and maintain open lines of communication with the West Basin Municipal Water District and the State Board. 16 PROPOSED CHANGES TO EL SEGUNDO MUNICIPAL CODE TITLE 10, CHAPTER 5 (WATER CONSERVATION) Proposed additions are in underline Proposed deletions are in strip 10 -5 -1: PURPOSE: 10 -5 -2: DEFINITIONS: 10 -5 -3: WATER CONSERVATION PROGRAM: 10 -5 -4: REPAIR OF PLUMBING, SPRINKLER AND IRRIGATION SYSTEM: 10 -5 -5: WATERING; IRRIGATION: 10 -5 -6: MISCELLANEOUS RESTRICTIONS: 10 -5 -7: COMMERCIAL CAR WASHES: 10-5-8. WASHING OF EQUIPMENT AND MACHINERY: 10 -5 -9: CLEANING OF STRUCTURES: 10 -5 -10: CLEANING OF SURFACES: 10 -5 -11: WATER SPILLAGE: 10 -5 -12: SWIMMING POOLS AND SPAS: 10- 5 -1.3: FOUNTAINS, DECORATIVE BASINS, PONDS, WATERWAYS: 10 -5 -14: COOLING SYSTEMS: 10 -5 -15: COMMERCIAL LAUNDRY FACILITIES: 10 -5 -16: VISITOR SERVING FACILITIES: 10 -5 -17: RESTAURANTS: 10 -5 -18: CONSTRUCTION: 10 -5 -19: USE OF HYDRANTS: 10 -5 -20: INDISCRIMINATE USE: 10 -5 -21: PUBLIC HEALTH AND SAFETY: 10 -5 -22: WATER SHORTAGE CONTINGENCY MEASURES: 10 -5 -23: RELIEF FROM COMPLIANCE: 10 -5 -24: ENFORCEMENT: 10 -5 -1: PURPOSE: This chapter is adopted pursuant to Water Code section 375 for the purpose of establishing permanent water conservation requirements. In the event of water shortages, this chapter also establishes and implemen4ft contingency measures in the event of water shortages. The provisions of this chapter are mandatory unless it is found that the use of water is necessary to comply with a term or condition in a permit issued by a state or federal agency, or is otherwise exempt by this chapter. 10 -5 -2: DEFINITIONS: 17 Unless the contrary is stated or clearly appears from the context, the following definitions govern the construction of the words and phrases used in this chapter: IMPERVIOUS SURFACE: A constructed or modified surface that cannot effectively percolate water. The term includes, without limitation, sidewalks, driveways, gutters, and roads. PERSON: A natural or corporate person who receives potable water service from the city. PROGRAMMED: A weather based or sensor based irrigation controller that was programmed in accordance with manufacturer's instructions and site specific conditions. RESPONSIBLE PERSON: The person responsible for daily operations of each residential or commercial premises located within the city's jurisdiction including, without limitation, the property owner. SENSOR BASED IRRIGATION CONTROLLER: An irrigation controller that operates based upon input received from any combination of sensors such as rain, light, and soil moisture, installed within or around an irrigated landscape area. WEATHER BASED IRRIGATION CONTROLLER: An irrigation controller that operates based on evapotranspiration rates and historic or real time weather data. 10 -5 -3: WATER CONSERVATION PROGRAM: All water customers are required to adopt and put into use at the earliest possible date drought water conservation programs. 10 -5 -4: REPAIR OF PLUMBING, SPRINKLER AND IRRIGATION SYSTEM: Responsible persons must, as soon as practicable, but not later than forty eight (48) hours after such person first discovers water leaks, commence repair of any leaking pipes, faucets, plumbing fixtures, other water service appliances, sprinklers, watering or irrigation systems, or distribution systems and promptly complete such repair work, unless a waiver is obtained from the city. 10 -5 -5: WATERING; IRRIGATION: Except as otherwise provided by this section, it is unlawful for any person to water their lawn or landscaping or permit their lawn or landscaping to be watered between the hours of nine o'clock (9:00) A.M. and five o'clock (5:00) P.M. It is unlawful for any person to water their lawn or landscaping or permit their lawn or landscaping to be watered for a period longer than fifteen (15) minutes per station each day. Notwithstanding these prohibitions, the following is permitted: 2 A. Persons may operate an irrigation system between nine o'clock (9:00) A.M. and five o'clock (5:00) P.M. for the purpose of installing, repairing or routine maintenance of the same; B. Persons may water between the hours of nine o'clock (9:00) A.M. and five o'clock (5:00) P.M. using any of the following methods: 1. Properly programmed weather based and /or sensor based irrigation controllers; 2. Drip irrigation; 3. By hand, using a bucket; or 4. By hand, using a hose with an automatic shutoff nozzle. C. Commercial nurseries and commercial grower's products may irrigate before 10 a.m. and after 6 p.m. only. Watering is permitted at any time with a hand -held hose: equipped with a positive shut -off nozzle, a bucket or when a driplmicro- irrigation system/equipment is used. Irrigation of nursery propagation beds is permitted at any time. Watering, of livestock is _permitted at any time. 10 -5 -6: MISCELLANEOUS RESTRICTIONS: The following are unlawful for any person: A. Allowing grass, lawns, ground cover, shrubbery, and open ground to be watered at any time while it is raining or within 48 hours after measurable rainfall. B. Operating landscape irrigation system(s) that allow overspray or excess runoff onto impervious surfaces (such as sidewalks, driveways, V- ditches, gutters and roadways). C. To use a water hose to wash any vehicle including, without limitation, cars, trucks, boats, trailers, recreational vehicles, or campers, or any other aircraft, tractor, or any other vehicle, or any portion thereof, unless the hose is equipped with an automatic shutoff nozzle. Except for individual residential vehicle washing, all wash water from vehicle washing /cleaning activity must be prevented from discharging to the stormwater drainage system. 10 -5 -7: COMMERCIAL CAR WASHES: A. It is unlawful for commercial car wash facilities to permit the washing of any boat or vehicle in such facility or on its premises, other than by the following methods: 1. Use of mechanical automatic car wash facilities utilizing water recycling equipment or utilizing recycled water; 2. Use of a hose that operates on a timer for limited time periods and shuts off automatically at the expiration of the time period; 3. Use of a hose equipped with an automatic shutoff nozzle; or 4. Use of bucket and hand washing. B. All wash/rinse water must be captured and recycled or discharged into the sanitary sewer system. 3 WE C. All new commercial conveyor car wash facilities must be equipped with a water recycling system. 10 -5 -8: WASHING OF EQUIPMENT AND MACHINERY: It is unlawful for any person to use a water hose to wash any type of equipment or machinery, or any portion thereof, unless the hose is equipped with an automatic shutoff nozzle. All wash water from such washing /cleaning activity must be prevented from discharging to the stormwater drainage system. 10 -5 -9: CLEANING OF STRUCTURES: It is unlawful for any person to use water through a hose to clean the exterior of any building or structure unless such hose is equipped with a shutoff nozzle. All wash water from such activity must be prevented from discharging to the stormwater drainage system. 10 -5 -10: CLEANING OF SURFACES: It is unlawful for any person to use water through a hose to clean any sidewalk, driveway, roadway, parking lot, or any other outdoor paved or hard surfaced area unless all • °�'� 10 -5 -11: WATER SPILLAGE: Every person must minimize water spillage into streets, curbs, or gutters and minimize runoff beyond the immediate area of use. Every person is deemed to have under his /her control at all times his /her water distribution lines and facilities, and to know the manner and extent of his /her water use and excess runoff. 10 -5 -12: SWIMMING POOLS AND SPAS: It is unlawful for any person to empty and refill a swimming pool or spa except to prevent or repair structural damage or to comply with public health regulations. Discharge of pool water, other than directly to the sanitary sewer system, must be consistent with this code with regard to stormwater. Discharge of pool filter backwash water to the stormwater drainage system is prohibited. All pools and spas must be equipped with a water recirculation device. The use of a pool /spa cover is encouraged to prevent evaporative water loss. 10 -5 -13: FOUNTAINS, DECORATIVE BASINS, PONDS, WATERWAYS: It is unlawful for any person to use water to operate or maintain levels in decorative fountains, basins, ponds, and waterways unless a recirculation device is in use. Discharge of water, other than directly to the sanitary sewer system, must be consistent with this M WE code with regard to stormwater. Discharge of filter backwash water to the stormwater drainage system is prohibited. 10 -5 -14: COOLING SYSTEMS: No single pass cooling systems are permitted in new connections. 10 -5 -15: COMMERCIAL LAUNDRY FACILITIES: New commercial laundry facilities must be equipped with a water reclamation system for rinse water. 10 -5 -16: VISITOR SERVING FACILITIES: The owner and manager of each hotel, motel, restaurant, and other visitor serving facility must ensure that such facility displays, in places visible to all customers, placards or decals approved by the city, promoting public awareness of the need for water conservation and /or advising the public that waste of water is prohibited. Hotels motels and other similar visitor serving facilities must provide guests the option to not have towels and linens laundered daily and prominently display this option in each guest room in easy -to- understand language. 10 -5 -17: RESTAURANTS AND OTHER EATING OR DRINKING ESTABLISHMENTS: Restaurants and any other eating and/or drinking establishments in the city cannot serve water to restaurant customers, except upon request of the customer. 10 -5 -18: CONSTRUCTION: A. It is unlawful to use potable water for compacting or dust control purposes in construction activities where there is a reasonably available source of recycled or other nonpotable water approved by the California state department of health services and appropriate for such use. B. All water hoses used in connection with any construction activities must be equipped with an automatic shutoff nozzle when an automatic shutoff nozzle can be purchased or otherwise obtained for the size or type of hose in use. C. Notwithstanding any other provision of this Code, use of potable water for irrigation and other outdoor use is prohibited outside of newly constructed homes and buildings unless delivered by drip or microspray systems, 10 -5 -19: USE OF HYDRANTS: It is unlawful for any person to utilize any fire hydrant for any purpose other than fire suppression or emergency aid, without first obtaining written approval from the city manager, or designee. 5 21 10 -5 -20: INDISCRIMINATE USE: It is unlawful for any person to cause or permit the indiscriminate running of water not otherwise prohibited by this chapter which is wasteful and without reasonable purpose. 10 -5 -21: PUBLIC HEALTH AND SAFETY: These regulations cannot be construed to limit water use which is immediately necessary to protect public health or safety. 10 -5 -22: WATER SHORTAGE CONTINGENCY MEASURES: The city council by resolution is authorized to require or impose reductions in the use of water if such reductions are necessary in order for the city to comply with water use restrictions imposed by federal, state or regional water agencies or to respond to emergency water shortage conditions. Depending on the expected duration and severity of the shortage, the city council may consider declaring a Level 1, Level 2, Level 3 or Level 4 Drought Response by Resolution. these meas lude, fimitation, the following-, A. Level 1 Drought Response. Declaring a Level 1 Drought Response condition demonstrates the need to reduce the City's water demand by a maximum of 10 %. During a Level 1 Drought Response_ condition, the city will increase its public education and outreach efforts to raise public awareness of the need to implement the permanent water conservation practices established in Chapter 10 -5, Sections 1 through 21. B. Level 2 Drought Response. Declaring a Level 2 Draught Response condition demonstrates the need to reduce the City's water demand between 10% and 20 1/o. During a Level 2 Drought Response condition, all persons using city water must comply with the Level 1 Drought Response conditions, and must also comply with the following additional mandatory conservation measures: 1. Limit residential and commercial landscape irrigation to no more than two [assigned] days per week on a schedule established by the Cif Manager and posted by the city. This subsection shall not apply to commercial growers or nurseries. 2. Cease watering landscaped public street medians with ornamental turf unless using recycled water. Potable water may be used on trees and shrubs to ensure their health. 3. Cease washing down any sidewalks and driveways, or other outdoor surfaces such as buildings, with potable water. R 22 4. Cease allowing_ runoff when irrigating potable water. 5. Any additional or innovative actions to increase the supply of water available to the city and to conserve the_city's existing water supply. C. Level 3Drought Response. Declaring a Level 3 Drought Response condition demonstrates the need to reduce the City's water- demand between 20% and 35 %. During, a Level 3 Drought Response condition all persons using city water must comply with the Level 1 and Level 2 Drought Response conditions, and must also comply with the following additional mandatory conservation measures: 1. Limit residential and commercial landscape irrigation to no more than one [assigned] day per week on a schedule established by the City Mana eg r and posted by the city. This section shall not apply to commercial growers or nurseries. 2. Stop filling or re-filling ornamental lakes or ponds, except to the extent needed to sustain aAuatic life, provided that such animals are of significant value and have been actively managed within the water feature prior to declaration of a drought response level under this ordinance. 3. Limit filling swimming pools, spas, hot tubs, Jacuzzis. or children's wadin pools is limited to not more than one assigned damper week. 4. Any additional or innovative actions to increase the supply of water available to the city and to conserve the city's existing water supply. D. Level 4 Drought Response. Declaring a Level 4 Drought Response condition demonstrates the need to reduce the City's water demand by 35% or more. During a Level 4 Drought Response condition, all persons using city water must comply with the Level 1, Level 2 and Level 3 Drought Response conditions, and must also comply with the following additional mandatory conservation measures: 1. All watering without a drip irrigation or micro -spray system is prohibited. This restriction shall not apply to the following, categories of use unless the city has determined that recycled water is available wid may be lawfully applied to the use. a. Maintenance of trees and shrubs that are watered on the same schedule set forth in Subsection B by using a bucket, hand -held hose with a positive shut -off nozzle, or low - volume non -spray irrigation; b. Maintenance of existing landscaping necessary for fire protection as specified by the Fire Marshal of the local fire 23 protection agency having jurisdiction over the properly to be irrigated, c. Maintenance of existing landscaping for erosion control d. Maintenance of plant materials identified to be rare or essential to the well being of rare animals; e. Maintenance of landscaping within active public parks and playing fields, day care centers, school grounds, cemeteries, and golf course greens, provided that such irrigation does not exceed two (2) dgys per week according to the schedule established under Subsection B: £ Watering of livestock.; and g. Public works projects and actively irrigated environmental mitigation projects. 2. Repair all water leaks within twenty -four (24) hours of notification by the city unless other arrangements are made with the City Manager. 3. Stop filling swimming pools, spas, hot tubs, and /or Jacuzzis of any kind whether in- ground or above - ground structures, including children's wading pools. 4. Stop washing vehicles except at commercial earwashes that re -, circulate water, or by high pressure /low volume wash systems. 5. Additionally, no new potable water service shall be provided, no new temporary meters or permanent meters shall be provided, and no statements of immediate ability to serve or provide potable water service (such as, will serve letters, certificates or letters of availability) shall be issued, except under the following circumstances: a. A valid, unexpired building permit has been issued for the project; or b. The project is necessary to protect the public's health, safety, and welfare, or c. The applicant provides substantial evidence of an enforceable commitment that water demands for the project will be offset prior to the provision of new water meter(s) to the satisfaction of city. This provision shall not be construed to preclude the resetting or turn- on of meters to provide continuation of water service or to restore service that has been interrupted for a period of one year or less. 6. Any additional or innovative actions to increase the supply of water available to the city and to conserve the city's existing water supply. In addition, the resolution declaring a Level 4 Drought Response may direct the City Manager not to issue new water utility service connections for any development. +fYfl, Yli-J 14�� 24 10 -5 -23: RELIEF FROM COMPLIANCE: The city manager, or designee, may grant written waivers to persons who apply on forms supplied by the city for: A. Prohibited uses of water if it is found that a waiver is necessary to prevent an emergency condition relating to health and safety, and if the person seeking a waiver demonstrates that he or she implemented water conservation measures in some other manner that achieves the objectives of this chapter. No waiver can be granted for the filling of any decorative fountain, basin, pond, hot tub, spa or permanent swimming or wading pool, unless the filling occurs as the result of performing necessary leak repairs and unless the other provisions of this section are met. B. No waiver can be granted unless the person demonstrates that he or she has already achieved the maximum practical reduction in water consumption as can be achieved by the affected property or business. Any waiver granted must be based upon the water consumption rates of similar water users, properties or businesses. 10 -5 -24: ENFORCEMENT: Anv violation of this chanter is a misdemeanor punishable by utv to 30 days in county iail and/or a fine un to $1000. At least one written warning must be provided to persons upon the first violation of this chapter. Second and subsequent violations may be enforced in accordance with applicable law :.,eluding, without limitation, his e It is the code enforcement officer's responsibility to enforce this chapter. 0 25 1111 Mill "-Vk�vw 7 W ON 1 V V OWN ~11,111101111,11111 _ �•aYi��i�s'RV VIVl'�.JY�I.a�sV�l �Jr A� \= ��0 10 -5 -23: RELIEF FROM COMPLIANCE: The city manager, or designee, may grant written waivers to persons who apply on forms supplied by the city for: A. Prohibited uses of water if it is found that a waiver is necessary to prevent an emergency condition relating to health and safety, and if the person seeking a waiver demonstrates that he or she implemented water conservation measures in some other manner that achieves the objectives of this chapter. No waiver can be granted for the filling of any decorative fountain, basin, pond, hot tub, spa or permanent swimming or wading pool, unless the filling occurs as the result of performing necessary leak repairs and unless the other provisions of this section are met. B. No waiver can be granted unless the person demonstrates that he or she has already achieved the maximum practical reduction in water consumption as can be achieved by the affected property or business. Any waiver granted must be based upon the water consumption rates of similar water users, properties or businesses. 10 -5 -24: ENFORCEMENT: Anv violation of this chanter is a misdemeanor punishable by utv to 30 days in county iail and/or a fine un to $1000. At least one written warning must be provided to persons upon the first violation of this chapter. Second and subsequent violations may be enforced in accordance with applicable law :.,eluding, without limitation, his e It is the code enforcement officer's responsibility to enforce this chapter. 0 25 26 State Water Board Adopts 25 Percent Mandatory Water Conservation Regulation For Immediate Release May 5, 2015 Contact: George Kostyrko gkostyrko @waterboards.ca.gov SACRAMENTO — With emergency drought conditions persisting throughout California, the State Water Resources Control Board Tuesday adopted an emergency regulation requiring an immediate 25 percent reduction in overall potable urban water use statewide in accordance with Gov. Jerry Brown's April 1 Executive Order. The Governor's Executive Order required, for the first time in the state's history, mandatory conservation for all residents and directed several state agencies, including the State Water Board, to take immediate action to safeguard the state's remaining potable urban water supplies in preparation for a possible fifth year of drought. A 25 percent savings in potable urban water use amounts to more than 1.2 million acre -feet of water over the next nine months, or nearly as much water as is currently in Lake Oroville. Tuesday's action follows the release of water production figures for the month of March which registered only a slight increase from the amount of water saved in the prior month. The amount of water conserved in March 2015, as compared to March 2013 was 3.6 percent, up less than one percent from February's results. Since the State Water Board adopted its initial emergency urban conservation regulation in July 2014, voluntary statewide conservation efforts have reached 9 percent overall — far short of the 20 percent Governor Brown called for in 2014. To see how various regions and communities have done conserving water, please visit this, link here. "This is the drought of the century, with greater impact than anything our parents and grandparents experienced, and we have to act accordingly," said Felicia Marcus, Chair of the State Water Resources Control Board. "Today we set a high but achievable bar, with the goal of stretching urban California's water supply. We have to face the reality that this drought may continue and prepare as if that's the case. If it rains and snows next winter, we celebrate. If the drought continues, we'll be glad we took difficult but prudent action today. It's the responsible thing to do." STATE WATER RESOURCES CONTROL BOARD 1001 1 Street, Sacramento, CA 95814 • Mailing Address: P.O. Box 100, Sacramento, CA 95812 -0100 • www.waterboards.ca.gov 27 Conservation Standard The emergency regulation identifies how much water communities must conserve based on their average residential water use, per person per day, last summer. Every person should be able keep indoor water use to no more than 55 gallons per day. For the most part, the amount of water that each person uses in excess of this amount is water that is applied to lawns and other ornamental landscapes. On average, 50 percent of total residential use is outdoors, in some cases up to 80 percent. To save water now, during this drought emergency, the regulation targets these outdoor uses. Communities that are approaching, at or below the indoor target, are assigned a modest conservation standard while communities that use water well above the indoor target will be asked to do much more. To reduce water use by 25 percent statewide, the regulation adopted by the Board this week places each urban water supplier into one of eight tiers which are assigned a conservation standard, ranging between four percent and 36 percent. Each month, the State Water Board will compare every urban water suppliers' water use with their use for the same month in 2013 to determine if they are on track for meeting their conservation standard. Local water agencies will determine the most cost effective and locally appropriate way to achieve their standard. The State Water Board will be working closely with water suppliers to implement the regulations and improve local efforts that are falling short. "This likely will result in all communities significantly cutting back on outdoor watering, particularly ornamental landscapes surrounding homes, institutions, and businesses, resulting in many golden landscapes statewide," said Marcus. "This will be a heavy lift for some, but we believe that the regulatory strategy adopted today is doable — in fact, many communities that have focused on conserving water have already achieved significant conservation without losing their landscapes." Residential customers of water suppliers with a conservation standard of 36 percent currently use between 216 and 614 gallons of water per person per day during the months of July, August, and September. Reducing their water use by 36 percent will still leave these residents with a minimum of 137 and up to 393 gallons of water per person per day; far more than the accepted standard of 55 gallons per person per day for indoor use. The difference between 55 gallons per person per day and 137 — 393 gallons per person per day means that these residents will still have water available for outdoor irrigation. Communities using less than 65 gallons per person per day will be required to reduce their overall water use by 8 percent. "Over the longer term, we have many ways to extend our precious water resources, particularly in urban areas — conservation, recycling, stormwater capture, and desalination in appropriate cases have great promise. Many communities have done a lot already, or have ambitious goals that we hope to help them achieve. In the short run however, conservation is the cheapest, fastest and smartest way to become more resilient in the face of drought today and climate change in the future," said Marcus. WQ Summary of New Requirements • The conservation savings for all urban water suppliers (serving more than 3,000 connections) are allocated across nine tiers of increasing levels of residential gallons per capita per day (R -GPCD) water use to reduce water use by 25 percent statewide and will take effect June 1st. For specific information on the tiers and the suppliers in each tier, please visit here. • Smaller water suppliers (serving fewer than 3,000 connections) must either reduce water use by 25 percent, or restrict outdoor irrigation to no more than two days per week. These smaller urban suppliers, that collectively serve less than 10 percent of Californians, must submit a report on December 15, 2015 to demonstrate compliance. • Commercial, Industrial and Institutional properties that are not served by a water supplier (or are self - supplied, such as by a groundwater well) also must either reduce water use by 25 percent or restrict outdoor irrigation to no more than two days per week. No reporting is required but these properties must maintain documentation of their water use and practices. , The new prohibitions in the Executive Order apply to all Californians and will take effect immediately upon approval of the regulation by the Office of Administrative Law. These include: • Irrigation with potable water of ornamental turf on public street medians; and • Irrigation with potable water outside of newly constructed homes and buildings not in accordance with emergency regulations or other requirements established by the Building Standards Commission and the Department of Housing and Community Development. These are in addition to the existing restrictions that prohibit: • Using potable water to wash sidewalks and driveways; • Allowing runoff when irrigating with potable water; • Using hoses with no automatic shutoff nozzles to wash cars; • Using potable water in decorative water features that do not recirculate the water; • Irrigating outdoors during and within 48 hours following measureable rainfall; and • Restaurants serving water to their customers unless the customer requests it. Additionally, hotels and motels must offer their guests the option to not have their linens - and towels laundered daily and prominently display this option in each guest room. WE Enforcement In addition to other powers, local agencies can fine property owners up to $500 a day for failure to implement the water use prohibitions and restrictions. The State Water Board can issue informational orders, conservation orders or cease and desist orders to water suppliers for failure to meet their conservation standard. Water agencies that violate cease and desist orders are subject to a civil liability of up to $10,000 a day. Next Steps Following Board adoption, the regulation will be submitted to the Office of Administrative Law, which has 10 days to approve or deny the regulation. If approved by the Office of Administrative Law, the regulation will take effect immediately and remain in effect for 270 days from that date. For more information, please visit the Emergency Water Conservation website. To learn more about the state's drought response, visit Drought.CA.Gov. Every Californian should take steps to conserve water. Find out how at SaveOurWater.com. WE State of California Office of Administrative Law In re: State Water Resources Control Board Regulatory Action: Title 23, California Code of Regulations Adopt sections: 863, 864, 865, 866 Amend sections: Repeal sections: NOTICE OF APPROVAL OF EMERGENCY REGULATORY ACTION Government Code Sections 11346.1 and 11349.6; Water Code Section 1058.5 OAL File No. 2015 - 0506 -02 EE The State Water Resources Control Board submitted this action to readopt and further amend three sections, adopted in OAL file no. 2014- 0718 -01 E and readopted in OAL file no. 2015 - 0320 -01 EE, and to adopt a new section in title 23 of the California Code of Regulations pertaining to drought emergency water conservation. The updated regulations 'are intended to safeguard urban water supplies in the event of continued drought, minimize the potential for waste and unreasonable use of water, and achieve the 25 percent statewide potable water usage reduction ordered by Governor Brown in his April 1, 2015 executive order. OAL approves this emergency regulatory action pursuant to sections 11346.1 and 11349.6 of the Government Code and section 1058.5 of the Water Code. This emergency regulatory action is effective on 5/18/2015 and will expire on 2/13/2016. The Certificate of Compliance for this action is due no later than 2/12/2016. Date: 5/18/2015 Richard L. Smith Senior Attorney For: DEBRA M. CORNEZ Director Original: Thomas Howard Copy: David Rose 31 STATE OF CALIFORNIA- OFFICE OF i40TICE PUBLIC (S Yeuctf ons on For use by Secretary of State only rse) GAL FtLE r NOTICE FILE NUMBER REGULATORY ACTION NUMBER EMERGENCY NUMBER un lqE z_ Z For use by Office of Administrative Law (OAL) only 2015 MAY —6 PH 414 3 NCIM ISTRATIV LA'rl ENDORSED - FILED In the office of the Secretary of Stale of kite State of Callornia MAX 1b- 2015 -Q3 _Pm I NOTICE REGULATIONS AGENCYYYIYNRUI MAKINGAUTHOR" - - AGENCY FJLENUM&ERCrany) State WaterResources Control Board A. PUBLICATION OF NOTICE (Complete for publication in Notice Register) f. SUEIJECTpFNCvTICE TITLES) FIRS S .CitONAFFECTEO 2. R iRQ_U E-500 PU BLI CAT ION OAT E re 4. AGENCY CONTACT NUMBER LJ R-gaatory Ac ion LJ Other OAL..USE; NOTICE NOTICE.FMCISTERNUMBER, PURMCA7(O ONTE O OAt d Qa i?tsaDWwvG ONIwY [E] Apsrr°"a� ❑ SulIIn114Qd ..... raoarred wltiw'awr, B. SUBMISSION OF REGULATIONS (Complete when submitting regulations) 1a. SUBJECT OF REGULATIONS) 1b. ALL PREVIOUS RELATED OAL REGULATORYACTION NUMBER(S) brought Emergency Water Conservation OAL Ffle No. 2014- 0718 -01 =E; 20) 5= 0320 -01 EE 2. SPECIFY CALIFORNIA CODE OF REGULATIONS TrTI .E(5) AND SECTION(S) tkKiodingiiUe26 >iftoxicsreg4d) _.._ SECTION(S).AFFFECTIED Aea>=1 863, 864, 865 (o(o Per agency (I.ist.all section numbers) J g fflauent individually, Attach No additional,sheet if needed.) TITLES) 23 3. TYPE OF FILING ❑RegularRulemakingtGov. Code 511340) ) ❑ Certificate of Com Ifarim The a e ofneer named p ,may below Alsagencycamptled Emergency Ready t (Gov. rg Cy p ❑ Changes Without Regulate Resubmittal of disapproved or ❑ certifiesthat with the provNionsofGov . Code 55113461-113473 either Code, 511346.1(h]) firyfert(Cap, Code R s tide � y withdrawn nonemergency fi6ng(Gov.Code § §T1349,3, before the emergency regulation was adopted or withinthetimepetiodrequiredbysCatate. Fire &Print ❑ Atint Only 11349,4) Emergency (Gov. Code, ❑ Resubrnitta( of.dlsapproved or withdrawn 0 Other (specify) Emerg. Readopt (Wat, Code 10585(c)) §11346.1(d)) emergency 111 n (Gov. Code, §11346.1) 4. ALL BEGINNING AND ENDING DATES OFAVAILAOUTYormwirlmftEGULAT' NsANoog MATERIAL ADDED 1U THE RULEMAKING FILE ( Cal. Code Begs, drle1,'§44andGov Code §11347.11 S. EFFECTIVE DATE OF CKANGES (Gov. Cock- 5511343A 11346.1(dl -CeL Code R.egs. 0e:1, 5100) Effective January 1. April 1. July 1, or ; Z; 1� five on filing *ft 4100 Changes whhaut Effective ❑ October 1(Oov. Code $41344(a)) t ' I Secatsr ❑ ❑sic other _ (SFsuh) 6. CHECK IF THESE REGULATIONS REQUIRE NOTICE TO, OR REVIEW, CONSULTATION, APPROVAL OR CONCURRENCE BY, ANOTHER AGENCY OR EKTITY Department ofFinanee.tForm5TD.399. .1(SAM §6660) ® Fair Political Practices Commission ❑ State Fire Marshal Other (specify) 7, CONTACT PERSOI David Rose 8. TELEPHONE NUMBER 916- 3411=5196 NUMBER, (Optional) 6-341 -51-99 I cortily.that the attached --of the reguiation(s) is a true and correct crapy For USe by of the regulations) Identified on this form, that the information specified on this form Is true and correct, and that I ant the head of the agency taking this action, or a designee of the heard of the agency, and am authorized to make this certification. A Oki 111 NEE I OAT f Thomas Howard, Executive Director, State Water Resources Control Board (opilarsal) Law (OAL) ENDORSED APPROVED MAY 18 2015. Office ofAdministrativ Law ADOPTED TEXT OF EMERGENCY REGULATION Article 22.5. Drought Emergency Water Conservation. Sec. 863. Findings of Drought Emergency. (a) The State Water Resources Control Board finds as follows: (1) On January 17, 2014, the Governor issued a proclamation of a state of emergency under the California Emergency Services Act based on drought conditions; (2) On April 25, 2014, the Governor issued a proclamation of a continued state of emergency under the California Emergency Services Act based on continued drought conditions; 3 On A ril 1 2015 the Governor issued an Executive Order that in part, directs the State Board to impose restrictions on water suppliers to achieve a statewide 25 p.trcent reduction in potable urban usa a througb February. 2016, require commercial industrial and institutional users to implement water efficiency measures, irri tion with potable water of ornamental turf in ublic treet medians, prohibit irrigation with potable water outside newly constructed homes and buildings that is not delivered by drip or microspray systems; (344) The drought conditions that formed the basis of the Governor's emergency proclamations continue to exist; (45) The present year is critically dry and has been immediately preceded by two or more consecutive below normal, dry, or critically dry years; and (§6) The drought conditions will likely continue for the foreseeable future and additional action by both the State Water Resources Control Board and local water suppliers will likely be necessary to prevent waste and unreasonable use of water and to further promote conservation. Authority: Section 1058.5, Water Code. References: Article X Section 2 California Constitution; Sections 102, 104, -ate 105, and 275, Water Code Li ht v. Stag Water Resources Control Board 2014 226 Cal.App.4th 1463. Sec. 864. End -User Requirements in Promotion of Water Conservation. (a) To prevent the waste and unreasonable use of water and to promote water conservation, each of the following actions is prohibited, except where necessary to address an immediate health and safety need or to comply with a term or condition in a permit issued by a state or federal agency: (1) The application of potable water to outdoor landscapes in a manner that causes runoff such that water flows onto adjacent property, non - irrigated areas,, private and public walkways, roadways, parking lots, or structures; (2) The use of a hose that dispenses potable water to wash a motor vehicle, except where the hose is fitted with a shut -off nozzle or device attached to it that causes it to cease dispensing water immediately when not in use; (3) The application of potable water to driveways and sidewalks; 33 (4) The use of potable water in a fountain or other decorative water feature, except where the water is part of a recirculating system; (5) The application of potable water to outdoor landscapes during and within 48 hours after measurable rainfall; -ate (6) The serving of drinking water other than upon request in eating or drinking establishments, including but not limited to restaurants, hotels, cafes, cafeterias, bars, or other public places where food or drink are served and /or purchased:; 7 The irrigation with potable water of ornamental turf on public street medians-, and (8) The irrigation with potable water of landscapes outside of newly constructed homes and buildings in a manner inconsistent with re lations or other requirements established by the California Building Standards Cozninission and the Department of Housing and Community Development. (b) To promote water conservation, operators of hotels and motels shall provide guests with the option of choosing not to have towels and linens laundered daily. The hotel or motel shall prominently display notice of this option in each guestroom using clear and easily understood language. Uc Immediately upon this subdivision taking effect, all commercial. industrial and institutional properties that use a water supply, any portion of which is from a source other than a water supplier subject to section 865_,, shall either: (1) Limit outdoor irrigation of ornamental landscapes or turf with potable water to no more than two days per week, or Q2 Reduce notable water usage supplied by sources other than a water supplier by 25 percent for the months of June 2015 through February 2016 as compared to the amount used from those sources for the same months in 2013. (ed) The taking of any action prohibited in subdivision (a) or the failure to take any action required in subdivisions (b) or c , ' efifnittal lea; is an infraction; punishable by a fine of up to five hundred dollars ($500) for each day in which the violation occurs. The fine for the infraction is in addition to, and does not supersede or limit, any other remedies, civil or criminal. Authority: Section 1058.5, Water Code. References: Article X, Section 2, California Constitution: Sections 102, 104, -a*d 105, 275, 350, and 10617, Water Code; Li ht v. State Water Resources Control Board 201 4 226 Ca1.AUp.4th 1463. Sec. 865. Mandatory Actions by Water Suppliers. (a) As used in this section: (1) "Distributor of a public water supply" has the same meaning as under section. 350 of the 'Water Code., except it does not refer to such distributors when they are functioning solely in a wholesale capacity, but does apply to distributors when they are functioning in a retail capacity_ (2) "R -GPCD" means residential gallons pgr capitaper day, ( ) "Total potable water_ production" means all potable water that enters into a water su lien's distributions stem exclude water-placed into stare a and not 34 withdrawn for use during the L% porting eriod or water ex orted outsider the supplier's service area. (00) -� trLirban water supplier;" > means a supplier that meets the definition set forth in Water Code section 10617, except it does not refer to suppliers when they are functioning solely in a wholesale capacity, but does apply to suppliers when they are functioning in a retail capacity. iO . ff1... .. #„ fr2ri3f'%i8 H X13 pelf�atef is all , sheft-al t7Elud f-$ -Elm's - 0' OOF of i ! JLLI CTIi. �ef with Tlf nescr;rcn An urbari water su 8iE 11th€ Eat 3 flip ate + } t .ar. +.,r .! (e& t the G&deTftr ...au• the iu4v a]L11AfrLiS ;unetieft with ell-e -mea "f;e`s, aeshireves a i l-of p >� Jvu� sm�CUTi--y5- L737-�]S7LTRy 5 days ei--week. 'Ve wv •.a asv aay �1461L L41'�' of Ornament }$ $�lfi -A �V tF 3 r i177s rrru that its . atle. s az t +"r 1 ,7 a _H(A ffleet within fafty f; ea4.L Lubre. a.viiri ' ' 45)4ay,,, or- PdFf with petal- 'e-wajepby_t6 -OHS it se lays p (Cb) In furtherance of the promotion of water conservation each urban water supplier shall: (1) Provide prompt notice to a customer whenever the supplier obtains information that indicates that a leak may exist within the end - user's exclusive control. (2) Prepare and submit to the State Water Resources Control Board by the 15 "` of m each nionth a monitoring report on fors provided by the Board. The monitoring report shall include the amount of potable water the urban water supplier produced, including water provided by a wholesaler, in the preceding calendar month and shall compare that amount to the amount produced in the same calendar month in 2013. The monitoring report shall specify the population served by the urban water supplier, the percentage of water produced that is used for the residential sector, descriptive statistics on water conservation compliance and enforcement efforts, -the number of days that outdoor irrigation is allowed and monthly commercial industrial and institutional sector use. The monitoring report shall also estimate the gallons of water per person per day used by the residential customers it serves. 35 (g)(1) To prevent the waste and unreasonable use of water and to meet the requirements of the Governor's April _1,, 2015 Executive Order, each urban water supplier shall reduce its total potable- water production by the percentaa identified as its conservation standard in this subdivision. Each urban water supplier's conservation standard considers its service area's relative per capita water usage. (2) Each urban water supplier whose source of supply does not include groundwater or water imported from outside the hydrologic region in which the water supplier is located, and that has a minimum of four years' reserved supply available, may submit to the Executive Director for approval a request that in lieu of the reduction that would otherwise be required under paragraphs 3) through (10). the urban water sup2lier shall reduce its total potable water production by 4 percent for each month as compared to the amount used in the same month in 2013. Any such request shall be accompanied by information showing, that the supplier's sources of supply do not include Groundwater or water imported from outside the hydrologic region and that the supplier has a minimum of four years' reserved supply available. 0 Each urban water supplier whose average July- September 2014 R -GPCD was less than 65 shall reduce its total potable water production by 8 percent for each month as compared to the amount used in the same month in 2013. - (4) Each urban water supplier whose average July- September 2014 R -GPCD was 65 or more but less than 80 shall reduce its total potable water production by 12 percent for each month as compared to the amount used in the same month in 2013. (5) Each urban water supplier whose average July - September 2014 R -GPCD was 80 or more but less than 95 shall reduce its total potable water production by 16 ep rcent for each month as compared to the amount used in the same month in 2013. (6) Each urban water supplier whose average July- September 2014_ R -GPCD was 95 or more but less than 110 shall reduce its total potable water production by 20 percent for each month as compared to the amount used in the same month in 2013. (7) Each urban water supplier whose average duly- September 2014 R -GPCD was 110 or more but less than 130 shall reduce its total Notable water production by 24 percent for each month as compared to the amount used in the same month in 2013. (8� Each urban water supplier whose average, July-September 2014 R -GPCD was 130 or more but less than 170 shall reduce its total potable water production by 28 percent fnr each month as compared to the amount used in the same month in 2013. (9) Each urban water supplier whose average July - September 2014 R -GPCD was 170 or more but less than 215 shall reduce its total potable water -production by 32 percent for each month as compared to the amount used in the same month in 2013. (10) Each urban water supplier whose average July - September 2014 R -GPCD was 215 or more shall reduce its total potable water production by 36 percent for each month as compared to the amount used in the same month in 2013. (d)(1) BegLnning dune 1 2015 each urban water supplier shall comply with the conservation standard specified in subdivision fc }. (2) Compliance with the requirements of this subdivision shall be measured monthly and assessed on a cumulative basis. (e)(1) Each u ban water su ier that pL vides potable water for mmmercial agricultural use meeting the definition of Government Code section 51201 subdivision b may subtract the amount of water provided for commercial agriculturaluse from its W'. potable water Droduction total rovided that any urban water su lier that subtracts an water Drovided for commercial a icultwal use from its #otal stable water reduction shall: (A) linnose _ reductions determined locall; a ropriate icy the urban water sunniier, after considerin the a plicahle urban water supplier conservation standard specified in subdivision fc), for commercial agricultural users meetinglthe definition of Government Code section 51201 subdivision served by the supplier-, (B Re ort its total potable water Droduction pursuant to subdivision 2 of this section the total amount .of water su lied for commercial a 'cultural use and shall identi �fy the reduction imposed on its commercial agricultural users and each recipient of potable water for commercial a dcultural use - Certif y that the awicultural uses it serves meet the definition of Government Code section 51201 subdivision • and om 1 with the Agricultural Water Mina en�ent F an re uirement of paragraph 12 of the April 1 2015 Executive Order for all commercial agricultural water served by the supplier that is subtracted from its total potable water production Q SubmittiRg.any information pursuant to subdivision e 1 l3 or C of this section that is found to be materially false by the board is a violation of this re la #ion ,punishable by civil liability of up to five hundred dollars_ ($500).for each day in, which .the violation occurs. Ever day that the error g oes uncorrected constitutes a separate violation. Civil liability for the violation is in addition t and does not supersede or limit, any other remedies civil or criminal. (ef) (UTo prevent waste and unreasonable use of water and to promote water• conservation, each distributor of a public water supply, 33G,- that is not an urban water supplier shall,, within e ty five I"" days-, take one or more of the following actions: (4A) Limit outdoor irrigation of ornamental landscapes or turf with potable water by the persons it serves to no more than two days per week; or (B ) Reduce ley 25 percent its total potable, water production relative to the amount produced in 2013. the ameufA eanfiamed in 2013. Q Each distributor of a public water supply that is not an urban water supplier shall submit a report by December 15 2015 on a form provided by the Board that either confirms compliance with subdivision (f)( —1 A) or identifies total potable water production by month. from June through November, 20015 and total potable water production, by month, for June through November 2013. Authority: Section 1058.5, Water Code. References: Article X Section 2 California Constitution-, Sections 102, 104, 105, 275, 350, 1846, 10617 and 10632, Water Code Lxgirt v. State Watet Resrrurces Ca►ttrof Board Q014) 225 Cal.,App.41,h 1463. 37 Sec. 866. Additional Conservation Tools. (a)(1) To prevent the waste and unreasonable use of water and to promote conservation, when a water supplier does not meet its conservation standard required by section 865 the Executive; Director, or the Executive Director's designee, may issue conservation orders requiring additional actions by the sul?plier to come into compliance with its conservation standard. (2) A decision or order issued under this article by the board or an officer or employee of the board is subject to reconsideration under article 2 (commencing with section 1122) of chapter 4 of part 1 of division 2 of the Water Code. The Executive Director, or his designee, may issue an informational order requiring water suppliers, or commercial, industrial or institutional properties that receive any portion of their Mply from a source other than a water supplier subject to section 865, to submit additional information relating to water production, water use or water conservation. The failure to provide the information requested within 30 days or any additional time extension granted is a violation subject to civil liability of up to $500 tier day for each day the violation continues pursuant to Water Code section 1846. Authority; Section 1058.5, Water Code. References: Article X Section-2, California Constitution, Sections 100 102 VO4,105 174 286 187 275 350 1051 1122 1123 1825 1846 10617 and 10632 Water Code. Light v. State Water Resources Control Board (2014) a2A Cal.App.4th 1463. EL SEGUNDO CITY COUNCIL MEETING DATE: June 16, 2015 AGENDA ITEM STATEMENT AGENDA HEADING: Unfinished Business AGENDA DESCRIPTION: Rescission of Brown Act Commitment - In Accordance with Government Code Section 54960.2 (e), consideration and possible action to rescind the commitment made by the City Council on November 5, 2013, not to hold further closed session meetings regarding real property negotiations with regard to ESCenterCal, LLC's ( "CenterCal ") proposal to enter into a Due Diligence and Ground Lease Agreement ( "Agreement ") to lease the driving range portion of the Lakes Golf Course from the City for the purpose of developing a Top Golf facility. (Fiscal Impact: unknown — depends on whether legal proceedings are commenced.) RECOMMENDED COUNCIL ACTION: 1. Consideration and possible action to rescind the commitment made by the City Council on November 5, 2013, to not hold further closed session meetings regarding real property negotiations with regard to CenterCal's proposal to enter into an Agreement to lease the driving range portion of the Lakes Golf Course from the City for the purpose of developing a Top Golf facility; or 2. Delay consideration of this item to a future date and give notice of such delay to Ms. Geist in accordance with Government Code Section 54960.2; or 3. Alternatively, discuss and take other action related to this item. ATTACHED SUPPORTING DOCUMENTS: November 5, 2013, Staff Reports (with attachments); and, Letter of May 8, 2015 to Ms. Geist FISCAL IMPACT: $ Amount Budgeted: N/A Additional Appropriation: N/A Account Number(s): N/A PREPARED BY: Mark D. Hensley, City Attorney APPROVED BY: Greg Carpenter, City Manager BACKGROUND & DISCUSSION: This item is being brought back for Council consideration based upon direction given by Council at its May 5, 2015, regular City Council meeting (Staff Report Attached). At that time, staff provided background information to Council including the fact that the City Council had approved the Agreement on November 5, 2013 and subsequently approved minor amendments to the Agreement as well as a reimbursement agreement on March 18, 2014. Staff reported that Center Cal had not signed and returned the Agreement and that the Council r~� then subsequently withdrew the option for CenterCal to execute the Agreement. CenterCal on G April 28, 2015 sent a new communication to the City proposing new terms. On May 5, 2015, W the City Council directed the City Attorney's office to notify Ms. Deborah Geist that the Council would consider rescinding its 2013 commitment not to hold closed sessions regarding this matter. At its May 5th meeting, the Council noted that it would need to consider whether a closed session was needed to discuss CenterCal's new terms and conditions. Council was reminded that Ms. Geist would need to be provided 30 days written notice that the Council will be holding a public session meeting to consider rescinding its commitment to not have further closed session discussions regarding the Agreement (Staff Report Attached). The Council would then need to meet thirty or more days after the notice date and consider a public agenda item which, if passed by a majority of the members of the City Council, would rescind the prior commitment made by Council and the Council could then schedule a closed session meeting to discuss different lease payments or payment terms. If the Council does rescind the letter it would restore Ms. Geist's rights (as well as any other interested party's right, including the District Attorney's), if any, to commence a legal action for alleged Brown Act violations. On May 8, 2015, a letter was transmitted to Ms. Geist (with a copy to the District Attorney's Office as required by the Brown Act), informing her that the Council on June 16, 2015 would be meeting to discuss the potential of rescinding it prior action regarding closed session negotiations relating to the Top Golf Agreement. The November 5, 2013, staff report and attachments provide the details regarding Ms. Geist's allegations of Brown Act violations and the City's response to same. It did not appear that there were any Brown Act violations, but in order to avoid unnecessary legal actions, particularly since the City understood the negotiations were completed, the Council approved staff's recommendation to issue the commitment that it would not hold further closed session meetings regarding the Agreement. However, the action referenced, and the Brown Act provides that the Council may rescind such a commitment at a public meeting E EL SEGUNDO CITY COUNCIL MEETING DATE: November 5, 2013 AGENDA STATEMENT AGENDA HEADING: New Business AGENDA DESCRIPTION: Consideration and possible action to authorize the Mayor to execute a letter in response to a "cease and desist" letters received on October 1, 2013 and October 17, 2013 from Debra Geist alleging various violations of the Ralph M. Brown Act relating to City's negotiations to lease out a portion of "the Lakes" golf course. (Fiscal Impact: None) RECOMMENDED COUNCIL ACTION: 1. Receive and file the letters dated October 1, 2013 and October 15, 2013 alleging various violations of the Ralph M. Brown Act; 2. Authorize the Mayor to execute the draft response letter; 3. Take such additional, related, action that may be desirable. ATTACHED SUPPORTING DOCUMENTS: 1. Letter dated October 15, 2013 (received October 17, 2013); 2. Draft response letter. FISCAL IMPACT: N/A Amount Budgeted: N/A Additional Appropriation: N/A Account Number(s): N/A ORIGINATED BY: Mark D. Hensley, City Attonic y ; Karl H. Berger, Assistant City to "rniy BACKGROUND AND DISCUSSION: On October 1, 2013 and October 17, 2013, the City Clerk's office received letters alleging that the City Council violated various provisions of the Ralph M. Brown Act when it considered the future of "the Lakes" municipal golf course (see attached Exhibit A — the letters are identical except for with respect to the dates set forth on the letters). These are referred to as the "October 2013 Letters." As the City Council is aware — and is quite public — the City was approached by two private companies in 2012 regarding a proposal for the Lakes municipal golf course. In general, the proposal is for Centercal, LLC to make various improvements to the golf course and the driving range; for Top Golf to operate the golf course; and for the City to receive a significant increase in rent over a period of potentially fifty years. The details of this deal is set forth in the due diligence and lease agreement that is being considered by the City Council as a separate agenda item for November 5, 2013. Since first being approached by these companies, the City Council undertook a number of actions to not only negotiate potential deal points to implement a proposal (as set forth in the 17 406 41 draft lease agreement), but also to solicit public input and dialogue regarding the desirability of undertaking such an arrangement. Such activities include, without limitation: • Public meetings by the City Council and Golf Course Subcommittee in August 2012 regarding the Lakes including a Powerpoint presentation regarding the proposal and direction from the City Council to seek public input. • Meetings in September 2012 between City staff and various community organizations including the El Segundo Chamber of Commerce and Kiwanis Club. Multiple meetings before the City's Recreation and Parks Commission in September and December 2012. + A presentation to the El Segundo Planning Commission on October 11, 2012. Posting the Powerpoint® presentation, draft schematics, and other matters on the City's website (elseutt�ido.oralnc �v5l iispinvncl� ,..� ; � �� ;1 i 3 1 149 Tai elg Ill =1). • Posting all disclosable public communications regarding the Lakes matter on the City's website \vww,elscp-undo.org/depts/ciiycicrk/documenta.as. Moreover, these proposals were widely publicized in the media and on various social networks (e.g., Facebook). And, as a result, there was significant public participation in the process including regular public comment during City Council meetings. The October 2013 Letters do not acknowledge the City Council's effott to solicit public input regarding the Lakes or the widespread public interest in the subject. Rather, the October 2013 Letters allege that the City Council violated the Brown Act when it discussed the matter in closed session on several occasions in 2012 and 2013. As you are aware, the California Legislature enacted the Ralph M. Brown Act (Government Codel §§ 54950 - 54963) in 1953. The Legislature adopted the Brown Act to ensure that deliberations and actions of local public agencies are performed at meetings open to the public and free from any veil of secrecy.' To further this overall goal, the Brown Act requires that the City's meetings be properly noticed and generally open to the public. There are certain exceptions to the general requirement that all meetings be held in public. These are referred to as "closed session" matters. One of these is the ability for the City Council to meet "with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease. "3 ' Further references to an unspecified code are to the Government Code. 2 § 54950. 3 § 54956.8 (emphasis added). 2 407 W The October 2013 Letters makes various complaints regarding the City Council exercising its ability to discuss price and terms of leasing the Lakes during closed session. In summary, these allegations are: (1) failure to appoint real property negotiators in open session as required by the Brown Act; (2) incorrect agenda descriptions as to closed session items; and (3) discussing items in closed session beyond the scope of what the Brown Act allows. The October 2013 Letters is the first step needed to file a lawsuit against the City for alleged violations of the Brown Act. In sum, the law' requires a persons seeking to enforce the Brown Act to first send a "cease and desist" letter to a public agency within nine months of the alleged violations before filing a lawsuit. Upon receiving a "cease and desist" letter, the public agency has thirty days' within which to consider the matter and, if it chooses, respond with "with an unconditional commitment to cease, desist from, and not repeat the past action that is alleged to violate" the Brown Act.' Such a response must be approved by the legislative body in open session and be substantially in a form required by law.' If the legislative body opts to undertake such a response, it removes the ability of a person to file a lawsuit.8 As noted more completely in the draft letter attached to this staff report, several of the alleged violations occurred more than nine months ago and are therefore time - barred from litigation. Moreover, all of the closed session agenda descriptions correctly identified the City's real property negotiators and described what was being discussed. Most importantly, however, the City Council has not yet committed to taking any action — the draft lease agreement properly contemplated during closed session is a separate agenda item for this meeting. And, as set forth in that draft agreement, there are multiple matters that must be resolved — in open session — before the City (or any other party) is obligated to undertake any real property transaction. However, in order to avoid potentially unnecessary and costly litigation, it is recommended that the City Council authorize the Mayor to execute the draft letter attached to this staff report (Exhibit B). As may be read, the draft letter constitutes the City Council's "unconditional commitment" not to undertake the actions identified by the October 2013 Letters. Under the Brown Act it is specifically recognized that sending this type of response is not an admission of guilt and it cannot be used against the City in any future legal proceedings. Given that this matter, as described above, has been a very public process and since the draft agreement is on the agenda for public consideration by the Council, it seems very prudent to simply agree, without admitting fault or that such occurred, to not undertake any further alleged action that violates the Brown Act. This will ensure that the City avoids the need to defend against a lawsuit alleging that the City Council violated the Brown Act. 4 § 54960.2. 5 The City Council may also provide such a response after thirty days, and even during litigation, which would cause a lawsuit to be dismissed. However, the court could under such circumstances award attorneys fees and costs (§ 54960.2(b)). G § 54960.2(c). 7 Id. 8 Id 408 43 Exhibit A October 1, 2013 and October 15, 2013 Letters .. 409 Via Personal Delivery Hon. BIII Fisher, Mayor Mr. Carl Jacobson, Mayor Pro Tom Ms. Suzanne Fuentes Mr. Dave Atkinson Ms. Marie Fellhouer City Council City of El Segundo 350 Main Street, El Segundo, CA 90245 RECEIVED /®- /- /3 CITY CLERKS OFFICE City Manager's Offfad3 October 1, 2013 OCT 12013 RECEIVED ; Re: Demand to Cease and Desist from Practices Violating the Ralph M. Brown Act Mr. Fisher and Members of the El Segundo City Council: This notice Is to caution you that the El Segundo City Council (the "ESCC ") has violated the Ralph M. Brown Act (California Government Code Sec. 54050 st.seq.), which mandates open and publicized meetings of local government at which the public may be present and comment on relevant matters. ESCC Is abusing the "safe harbor" provisions of Government Code Section 54956.8, which allow a limited exception to the general mandate of open meetings only "to grant authority to ha negotiator regarding the price and terms of payment for... (a real property lease)." The specific violations are as follows: 1. Conducting Closed Sessions On The Proposed Lease of The Lakes Prior to a Public Hearing On three separate occasions, June 19, 2012, June 25, 2012 and June 17, 2012, the ESCC conducted closed sessions for the stated purpose of discussions with Greg Carpenter, City Manager, concerning The Lakes, a municipaaf golf course owned by the City of El Segundo. Ailhough the stated purpose of such meetings, as noted on the relevant Agendas, was "discussion with Heal Properly Negotiator", ESCC had not yet conducted a public session as required by Government Code Section 54956.8 as follows: However, prior to the closed session, the legislative body of the local agency shall hold an open and public session In which it Identifies the real property... which the negotiations may concern and the person or persons with whom its negotiator may negotiate. Additionally, the relevant Agendas fail to Identify the persons or entities Mr. Carpenter would negotiate with. These meetings patently fall outside the "safe harbor" and are Illegal. 2. Conducting Closed Sessions with Top Golf on Related Issues On two separate occasions, February 5, 2013, February 19, 2013, the ESCC conducted closed sessions with Mr. Carpenter relating to Top Golf and Centercal Properties as "negotiating parties." However, the proposed lease Is with Centercal only. The City of El Segundo will have no contractual privily with Top Golf, who will sublet from Centercal to operate a golf entertainment business at The Lakes. ESCC was not negotiating a real property lease with Top Golf but rather consulting with Top Golf regarding lease issues. The Brown Act mandates that ESCC conduct any such consultations In public meeting because the "safe harbor" provision pertains only to the proposed lessee on price and terms of payment. Consultations with other parties on 'related issues" or "background Issues" are outside the scope of the exception. See, Shapiro v. City Council of San 17iego, 96 Cal. App. 0 904 (2002). 3. Conducting Serial Closed Sessions on Matters Outside Payment and Terms of Payment On eight separate occasions, February 5, 2013, February 19, 2013, May 7, 2013, August 6, 2013, August 20, 2013, September 3, 2013, September 17, 2013, and October 1, 2013, the ESCC conducted closed sessions with Mr. Carpenter relating to the lease with Centercal Properties as the negotiating party. The number of closed sessions alone is excessive and proves that the ESCC has trespassed beyond the "safe harbor" of price and terms of payment. This situation Is analogous to Shapiro v. City Council of San Diego, 410 45 98 Cal. App. 4s' 904 (2002), where the Court of Appeal held that the San Diego Council had violated the Brown Act in Including discussion of a variety of "related issues" In a series of closed session held to consult with Its agent In real property negotiations concerning a large redevelopment project to create a new baseball park. The Fourth District faulted the San Diego Council's expansive Interpretation of the "safe harbor' as follows: We believe the City Council's view that no detailed disclosures should be required before closed sessions may be held to discuss a complex overall real estate based transaction is Inconsistent with the express statutory requirements of section 54948.8 The Fourth District stressed that the "safe harbor" must be narrowly and not expansively construed as follows: If we were to accept the City's Interpretation of the Brown Act In this respect, we would be turning the Brown Act on Its head, by narrowly construing the open meeting requirements and broadly construing the statutory exceptions to It. That would be incorrect. We do not denigrate the Important consideration of confldentiallty in negotlations. However, we believe that In this case, the City Council is attempting to use the Brown Act as a shield against public disclosure of Its consideration of Important public policy Issues, of the type that are Inevitably raised whenever such a large public redevelopment real estate based transaction Is contemplated. The important policy consideration of the Brown Act, however, must be enforced, even where particular transactions do not fit neatly within its statutory categories. Id. at 924. Here, as in Shapiro, ESCC Is using closed sessions to shield Important development consldaratlons from public view. The sheer number of closed sessions, In contrast to the single open session on the proposed lease, proves that ESCC is shirking Its duty to conduct open sessions on matters of public Interest that will substantially impact The Lakes future. Indeed, ESCC has disclosed relatively nothing In open sessions regarding Its relationship with Centercal, Centercal's relationship with Top Golf, proposed physical changes to the golf course, proposed physical changes to the driving range, price Increases, public programs, changes to the liquor license and more. Members of the public are demanding to be heard on these Issues but have been relegated to bystanders In a closed process zealously guarded by ESCC against its public responsibilities under the Brown Act. 4. Substantively Misleading Agenda Description On August 21, 2012, the ESCC conducted a single public session on the proposed lease of The Lakes which generally describes the Agenda as a direction to staff as follows: Consideration and possible action to direct staff to take steps necessary to seek Input from various City Committees regarding a potential agreement with Centercal 'Properties, LLC for enhancing the driving range and dining facilities at The Lakes Golf Course which would be operated by Top Goff. The agreement would be negotiated by the City Manager and City Attorney and presented for review and potential approval by the City Council at a future date. This description Is inaccurate because it states that the ESCC was to direct staff regarding future action when, in fact, the ESCC contemplated and took immediate action to direct Mr. Carpenter to enter Into negotiations with Centercal regarding a lease of The Lakes. While the Brown Act requirements for agenda Item descriptions are quite lenient, this item just falls to describe the action taken by ESCC to Immediately enter Into a proposed Cease. it's just wrong. The significance of the misdescription is magnified by the fact that this was the only open discussion on the proposed lease and therefore, it was Imperative that the ESCC accurately convey notice to the public of what ESCC intended to do. Without such clear notice, those members of the public who might well have attended the meeting to address a proposed decision Immediately to proceed with lease negotiations were misled Into believing that there would be adequate opportunities to do so later, at meetings of either the "City Committees," the City Council or both. The ESCC failed Its duties under the Brown Act and should be enjoined from proceeding further absent a material cure. ., 411 The El Segundo City Council has thirty days from receipt of this letter to provide me with an unconditional commitment to cease, desist from, and not repeat the practices noted above, compliant with Government Code Section 549602, subdivision (c). Its failure to do so will entitle me to file an action for declaratory judgment and Injunctive relief and for attorney's fees and costs. Respectfully, Qu' �j 1--J Debra V. Geist (810) 489 7751 citegelst@iverizon.net 47 412 October 15, 2013 Via U.S. Mall Tracy Sherrill Weaver City Clerk City of El Segundo 350 Main Street, El Segundo, CA 90245 Hon. BIII Fisher, Mayor Mr. Carl Jacobson, Mayor Pro Tom Ms. Suzanne Fuentes Mr. Dave Atkinson Ms. Marie Fellhauer CITY Re: Demand to Cease and Desist from Practices Violating the Ralph M. Brown Act Mr. Fisher and Members of the El Segundo City Council: This notice Is to caution you that the El Segundo City Council (the "ESCC') has violated the Ralph M. Brown Act (California Government Code Sec. 54050 et.seq.), which mandates open and publicized meetings of local government at which the public may be present and comment on relevant matters. ESCC Is abusing the "safe harbor' provisions of Government Code Section 54956.8, which allow a limited exception to the general mandate of open meetings only "to grant authority to its negotiator regarding the price and terms of payment for... (a real property lease)." The specific violations are as follows: 1. Conducting Closed Sessions On The Proposed Lease of The Lakes Prior to a Public Hearing On three separate occasions, June 19, 2012, June 25, 2012 and July 17, 2012, the ESCC conducted dosed sessions 1br the stated purpose of discussions with Greg Carpenter, City Manager, concerning The Lakes, a municipal golf course owned by the City of El Segundo. Although the stated purpose of such meetings, as noted on the relevant Agendas, was "discussion with Real Property Negotlator', ESCC had not yet conducted a public session as required by Government Code Section 54956.6 as follows: However, prior to the closed session, the legislative body of the local agency shall hold an open and public session In which it Identities the real property... which the negotiations may concern and the person or persons with whom Its negotiator may negotiate. Additionally, the relevant Agendas fail to Identify the persons or entitles Mr. Carpenter would negotiate with. These meetings patently fall outside the "safe harbor and are Illegal. 2. Conducting Closed Sessions with Top Golf on Related Issues On two separate occasions, February 5, 2013, February 19, 2013, the ESCC conducted closed sessions with Mr. Carpenter relating to Top Golf and Centercal Properties as "negotiating parties." However, the proposed lease Is with Centercal only. The City of El Segundo will have no contractual privity with Top Golf, who will sublet from Centercal to operate a golf entertainment business at The Lakes. ESCC was not negotiating a real property lease with Top Golf but rather consulting with Top Golf regarding lease Issues. The Brown Act mandates that ESCC conduct any such consultations In public meeting because the "safe harbor" provision pertains only to the proposed lessee on price and terms of payment. Consultations with other partles on "related Issues" or "background Issues* are outside the scope of the exception. See, S"p ro y. City COUncil of San Diego. 9=6 Cal. App. 40'904 (2002). 3. Conducting Serial Closed Sessions on Matters Outside Payment and Terms of Payment On eight separate occasions, February 5, 2013, February 19, 2013, May 7, 2013, August 6, 2013, August 20, 2013, September 3, 2013, September 17, 2013, and October 1, 2013, the ESCC conducted closed 413 .; sesslons with Mr, Carpenter relating to the lease with Centercal Properties as the negotiating party. The number of closed sessions alone Is excessive and proves that the ESCC has trespassed beyond the "safe harbor' of price and terms of payment. This situation is analogous to Shapirov. Ciiy Council of San DleAq, 96 Cal. App. 0 904 (2002), where the Court of Appeal held that the San Diego Council had violated the Brown Act In Including discussion of a variety of "related Issues" in a series of closed session held to consult with its agent In real property negotiations concerning a large redevelopment project to create a new baseball park. The Fourth District faulted the San Diego Council's expensive Interpretation of the "safe harbor' as follows: We believe the City Council's view that no detailed disclosures should be required before closed sessions may be held to discuss a complex overall real estate based transaction Is inconsistent with the express statutory requirements of section 54948.8 The Fourth District stressed that the "safe harbor° must be narrowly and not expansively construed as follows: If we were to accept the City's Interpretation of the Brown Act In this respect, we would be turning the Brown Act on Its head, by narrowly construing the open meeting requirements and broadly construing the statutory exceptions to it. That would be incorrect. We do not denigrate the Important consideration of confidentiality In negotiations. However, we believe that in this case, the City Council Is attempting to use the Brown Act as a shield against public disclosure of its consideration of Important public policy issues, of the type that are Inevitably raised whenever such a largo public redevelopment real estate based transaction Is contemplated. The Important policy consideration of the Brown Act, however, must be enforced, even where particular transactions do not fit neatly within Its statutory categories. Id. at 924. Here, as In Shapiro, ESCC is using closed sessions to shield important development considerations from public view. The sheer number of closed sessions, In contrast to the single open session on the proposed lease, proves that ESCC is shirking He duty to conduct open sessions on matters of public Interest that will substantially Impact The Lakes future. Indeed, ESCC has disclosed relatively nothing In open sessions regarding Its relationship with Centercal, Centercal's relationship with Top Golf, proposed physical changes to the golf course, proposed physical changes to the driving range, price Increases, public programs, changes to the liquor license and more. Members of the public are demanding to be heard on these Issues but have been relegated to bystanders in a closed process zealously guarded by ESCC against Its public responsibilities under the Brown Act. 4. Substantively Misleading Agenda Description On August 21, 2012, the ESCC conducted a single public session on the proposed lease of The Lakes which generally describes the Agenda as a direction to staff as follows: Consideration and possible action to direct staff to take steps necessary to seek Input from various City Committees regarding a potential agreement with Centercal Properties, LLC for enhancing the driving range and dining facilities at The Lakes Golf Course which would be operated by Top Golf. The agreement would be negotiated by the City Manager and City Attorney and presented for review and potential approval by the City Council at a future date. This description Is Inaccurate because it states that the ESCC was to direct staff regarding future action when, In fact, the ESCC contemplated and took Immediate action to direct Mr. Carpenter to enter Into negotiations with Centercal regarding a lease of The Lakes. While the Brown Act requirements for agenda Item descriptions are quite lenient, this item just fails to describe the action taken by ESCC to immediately enter Into a proposed lease. It's just wrong. The slgnlflcance of the misdescription Is magnified by the fact that this was the only open discussion on the proposed lease and therefore, It was Imperative that the ESCC accurately convey notice to the public of what ESCC Intended to do. Without such clear notice, those members of the public who might well have attended the meeting to address a proposed decision Immediately to proceed with lease negotiations were misled into believing that there would be adequate opportunities to do so later, at meetings of either the "City Committees,' the City Council or both. The ESCC failed Its duties under the Brown Act and should be enjoined from proceeding further absent a material cure. M 414 The 8 Segundo City Council has thhty days from receipt of this letter to provide me with an uncondfHonal commitment to cease, desist from, and not repeat the practices noted above, compliant With Government Code $action 549802, subdivision (C). Its failure to do so will entitle me to file an action for declaratory judgment and injunctive relief and for attomWe Tessa and costs: Rea Ily, cv"'O'e V Debra V. Geist (310) 489 7751 cltegelstaverizon.nst WK 415 Exhibit B Draft Response Letter 51 416 EG 417 October 30, 2013 Elected Officials: Bill Plehor, Mayor Debra V. Geist Carl Jacobson, Mayor Pro Tom 121 16th St Suzanne Fuentes, Council Member Manhattan Beach, CA 90266 Dave Atkinson, Council Member Marto Fsllhousr, Council Membor Re: Letter dated October 15, 2013 Tracy Weaver, City Clark Dear Ms. Geist: Appointed Officials: GregCmpsntsr, Thank you for your letter dated October 15, 2013 (received by the City on City le yOctober He Mark D. . Hensley, 17, 2013). As you are aware, that letter (the "October 15th Letter") Cristo Binder, alleges that the City Council violated the Ralph M. Brown Act and City Treasurer constitutes a "cease and desist" letter in accordance with Government Code § 54960.2. Department Directors: Deborah Cullen, Specifically, the October 15th letter accuses the City Council of violating the Finance Martha D(/kaD&fk sfre Brown Act on the following dates: June 19, 2012; June 25, 2012; July 17, Human KevinSmithResrurcas 2012; August 21, 2012; February 5, 2013; February 19, 2013; May 7, 2013; Flroghol Debra Brighton, August 6, 2013; August 20, 2013; September 3, 2013; Library Services Sam Lee, September 17, 2013; and October 1, 2013. In sum, the October 15th letter Buildings and alleges that the City Council's actions relating to the municipal golf course MltcPoliceChief known as "the Lakes" violated the Brown Act as follows: (1) failure to Stephanie Katsoulans, PublieWorks appoint real property negotiators in open session; (2) incorrect agenda RobRecreatonapark& descriptions as to closed session items; and (3) discussing items in closed session beyond the scope of statutory authority. In short, the City Council disagrees with the October 15th letter for several different reasons. www.elsegundo.org First, as to alleged violations occurring in 2012, these matters are time - barred pursuant to Government Code § 54960.2(a)(2). That section requires actions to be undertaken within nine months of the alleged violation. Second, (as stated in the October 15th letter at p.2) the City Council (at the latest) did appoint real property negotiators in open session on August 21, 2012 pursuant to Agenda Item No. F9: "Direct the City Manager and City Attorney to negotiate terms 350 Main Street, El Segundo, Californla 90245.3813 Phone (310)524 -2300 Fax (310) 640 -0489 52 417 of a [sic] agreement with Centercal Properties, LLC for a new TopGolf facility to be located at The Lakes in place of the existing driving range." Moreover, the City Manager was identified on every agenda as the property negotiator for these negotiations. The City Manager has general authority pursuant to El Segundo Municipal Code § 1 -5A-7 to "exercise general supervision over all public buildings, public parks and all other public property which is under the control and jurisdiction of the city council." The City Council believes this would include (at a minimum) initial negotiations regarding potentially leasing the Lakes. As previously noted, however, these matters are time barred in any event. Third, as explained below, it is plain that the City Council's considerations regarding the Lakes were (and are) quite public. Even a cursory glance at the City's webpage, staff reports, and other public outreach documents demonstrate that the City Council sought (and continues to seek) public input regarding what should happen with the municipal golf course. Allegations, therefore, that the City Council was misleading or has somehow attempted to avoid transparency as to the Lakes matter cannot be reconciled with the City's efforts at encouraging public discourse regarding'this important matter. As you know, the City Council is considering whether to lease a portion of the Lakes municipal golf course to a private company or companies. As part of this process, the City is engaged in an extensive public outreach program seeking public participation. Among other things, the City undertook the following actions: August 21, 2012: the City Council heard a presentation regarding the Lakes during open session and then directed the City Manager, or designee, to seek public input regarding a potential agreement with Centercal and Top Golf. ■ August 29, 2012: the City Council's Golf Course Subcommittee met in public to discuss the matter. • September 13, 2012: City staff made a presentation to the El Segundo Chamber of Commerce. September 18, 2012: City staff met at the El Segundo Public Library with golf industry stakeholders. September 19, 2012: City staff made a presentation to the City's Recreation and Parks Commission during its regular meeting. September 25, 2012: City staff made a presentation to the Kiwanis Club. • October 3, 2012: City staff provided a progress update to the City Council's Golf Course Subcommittee. 350 Main Street, El Segundo, California •90245 -3813 Phone (310)524 -2300 Fax (310) 640.0489 418 53 • October 4, 2012: City staff made a presentation at the Rotary Club meeting. • October 11, 2012: a presentation regarding the matter was made to the City's Planning Commission during its regular meeting. • October 11, 2012: City staff made a presentation to the City's Economic Development Advisory Council. • November 18, 2012: the El Segundo Chamber of Commerce voted to endorse /support the Top Golf matter. • December 5, 2012: the City Council's Golf Course Subcommittee reviewed the matter. • December 19, 2012: the Recreation and Parks Commission reviewed the findings and analysis. • Between October and November 2012, City staff met with most business oriented hotels within the City of El Segundo. • The City posted the Powerpoint® presentation, draft' schematics, and other matters on the City's website (else undo.or !news /dis la news.as ?NewslD =1149 &Tar etlp =l ). • The City has posted and (continues to post) all disclosable public communications regarding the Lakes matter on the City's website ( www. elsecundo. oLg/ depts /cityclerk/documents.asc). Such proactive actions are in addition to the multiple opportunities taken by interested citizens to provide public comment to the City Council during its regular meetings. This matter is also being extensively scrutinized by media coverage (see e.g., www.eas readernews .com / ?4599 /residents - assail -to olf /; www.dallybreeze.com/20121105 /local- golfers- balk -at,proposed- changes -to- the- lakes- in- el- segundo-course) and various social media outlets. Based upon the foregoing, the City Council respectfully disagrees with the allegations set forth in the October 15th Letter as to purported violations of the Brown Act. Moreover, as you can see from the Due Diligence and Lease Agreement ( "Agreement ") that the Council will consider approving at its November 5, 2013 regular meeting, the alleged Brown Act violations set forth in the October 15th Letter are without merit. There are twelve specific conditions precedent that must be accomplished before a leasehold interest could be created. Accordingly, the City is not committed to entering into the draft Agreement since there are numerous issues that must be resolved in public meetings before the Planning Commission and City Council before any leasehold could be established. Such matters include review and potential approval of a conceptual plan for the golf course and the driving range improvements; review and potential approval of 350 Maln Street, El Segundo, California 90245 -3813 Phone (310)524 -2300 Fax (310) 640 -0489 54 419 a recommended action under the California Environmental Quality Act; review and potential approval of the land use entitlements that would be needed to allow for the uses contemplated by the draft Agreement; and many other items that identified in the draft Agreement. However, in an abundance of caution, to avoid unnecessary litigation, and without admitting any violation of the Ralph M. Brown Act, the Er Segundo City Council unconditionally commits that it will cease, desist from, and not repeat the actions challenged in the October 15th Letter and briefly described above. Note that the El Segundo City Council may rescind this commitment only by a majority vote of its membership taken in open session at a regular meeting and noticed on its posted agenda as "Rescission of Brown Act Commitment." You will be provided with written notice, sent by any means or media you provide in response to this message, to whatever address or addresses you specify, of any intention to consider rescinding this commitment at least 30 days before any such regular meeting. In the event that this commitment is rescinded, you will have the right to commence legal action pursuant to Government Code § 54960(a). That notice will be delivered to you by the same means as this commitment, or may be mailed to an address that you have designated in writing. Very truly yours, Bill Fisher, Mayor 350 Main Street, El Segundo, California 90245 -3813 Phone (310)524 -2300 Fax (310) 640 -0489 420 6.10. 56 r May 8, 2015 Elected Officials: Debra V. Geist Suzanne Fuentes, Mayor 121 16th St Carl Jacobson Manhattan Beach CA 90266 Mayor Pro Tern Manhattan Dave Atkinson, Council Member Marie Fellhauer, Re: Notice of Rescission per Government Code § 54960.2(e) Council Member Michael Dugan, Council Member Tracy Weaver, Dear Ms. Geist: City Clerk Crista Binder, City Treasurer On November 5, 2013, the City Council committed to refrain from utilizing closed session to discuss real property negotiations concerning its municipal golf course known as "the Appointed Officials: Lakes." The reasons for such commitments are set forth in the enclosed letter (the "Letter "). Greg Carpenter, City Manager As you know, on May 5, 2015, the City Council directed our office to provide you thirty Mar* CityAttomey day notice that the City Council would consider rescinding the commitment set forth in the Letter in accordance with Government Code § 54960.2(e). Accordingly, take notice that the Department Directors: City Council will consider a "Rescission of Brown Act Commitment" as a regular agenda Deborah Cullen, item at its regular meeting held on June 16, 2015. Should the City Council decide to rescind Finance its commitment in the Letter, you will have the right to commence legal action in Martha n Res Human Resources accordance with the Ralph M. Brown Act. Kevin Smith, Fire Chief Debra Brighton, Please note that the City reaffirms its position as set forth in the Letter: this matter is Library Services Sam Lee, thoroughly transparent; allegations regarding Brown Act violations are without merit. Planning and Building Safety Moreover, the public continues to have a vibrant dialogue regarding the City Council's Mitch Tavera, Police Chief actions as to the Lakes. Stephanie Katsouleas, Public Works Mere Note that a copy of this letter is being provided to the Public Integrity Unit of the Los Recreation 8 Parks Angeles County District Attorney's office in accordance with Government Code § 54960.2(e). www.elsegundo.org Very trWyours. Berer llssistaw City Attorney c.: District Attorney City Council City Manager 350 Main Street, El Segundo, California 90245 -3813 Phone (310)524 -2300 Fax (310) 640 -0489 57 58 417 October 30, 2013 Elected Officials: Bill Fisher, Mayor Debra V. Geist Carl Jacobson, Mayor Pro Tom 121 16th St Suzanne Fuentes, Council Member Manhattan Beach, CA 90266 Dave Atkinson, Council Member Marie Fellhauer, CounWlMembar Re: Letter dated October 15, 2013 Tracy Weaver, Chy clerk Dear Ms. Geist: Appointed Officials: Greg Carpenter, Thank you for your letter dated October 15, 2013 (received by the City on Clfy Manager Mark D. Hensley, , October 17, 2013). As you are aware, that letter (the "October 15th Letter') ChAtiomey Crisis Binder, alleges that the City Council violated the Ralph M. Brown Act and Chy Treasurer a constitutes a "cease and desist" letter in accordance with Government Code i § 54960.2. Department Directors: Deborah Cullen, Specifically, the October 15th letter accuses the City Council of violating the Finance Martha DQkaDUk sfn Brown Act on the following dates: June 19, 2012; June 25, 2012; July 17, Human KevinSmithReaouroea 2012; August 21, 2012; February 5, 2013; February 19, 2013; May 7, 2013; Fife Chief Debra Brighton, ro August 6, 2013; August 20, 2013; September 3, 2013; SamLlee,ry$eNrc� September 17, 2013; and October 1, 2013. In sum, the October 15th letter Buildng Safety alleges that the City Council's actions relating to the municipal golf course Mltcp lice Chief known as "the Lakes" violated the Brown Act as follows: (1) failure to Stephanie Wsurees, Public Works appoint real property ne g otiators in o p en session; (2) incorrect agenda Robert Cummings, Recreation d Parka R descriptions as to closed session items; and (3) discussing items in closed session beyond the scope of statutory authority. In short, the City Council disagrees with the October 15th letter for several different reasons. www.elsegundo.org First, as to alleged violations occurring in 2012, these matters are time - barred pursuant to Government Code § 54960.2(a)(2). That section requires actions to be undertaken within nine months of the alleged violation. Second, (as stated in the October 15th letter at p.2) the City Council (at the j latest) did appoint real property negotiators in open session on August 21, 2012 pursuant to Agenda Item No. F9: "Direct the City Manager and City Attorney to negotiate terms 350 Main Street, El Segundo, California 90245 -3813 Phone (310)524 -2300 Fax (310) 640 -0489 59 417 of a [sic] agreement with Centercal Properties, LLC for a new TopGolf facility to be located at The Lakes in place of the existing driving range." Moreover, the City Manager was identified on every agenda as the property negotiator for these negotiations. The City Manager has general authority pursuant to El Segundo Municipal Code § 1 -5A -7 to "exercise general supervision over all public buildings, public parks and all other public property which is under the control and jurisdiction of the city council." The City Council believes this would include (at a minimum) initial negotiations regarding potentially leasing the Lakes. As previously noted, however, these matters are time barred in any event. Third, as explained below, it is plain that the City Council's considerations regarding the Lakes were (and are) quite public. Even a cursory glance at the City's webpage, staff reports, and other public outreach documents demonstrate that the City Council sought (and continues to seek) public input regarding what should happen with the municipal golf course. Allegations, therefore, that the City Council was misleading or has somehow attempted to avoid transparency as to the Lakes matter cannot be reconciled with the City's efforts at encouraging public discourse regarding'this important matter. As you know, the City Council is considering whether to lease a portion of the Lakes municipal golf course to a private company or companies. As part of this process, the City is engaged in an extensive public outreach program seeking public participation. Among other things, the City undertook the following actions: August 21, 2012: the City Council heard a presentation regarding the Lakes during open session and then directed the City Manager, or designee, to seek public input regarding a potential agreement with Centercal and Top Golf. August 29, 2012: the City Council's Golf Course Subcommittee met in public to discuss the matter. September 13, 2012: City staff made a presentation to the El Segundo Chamber of Commerce. • September 18, 2012: City staff met at the El Segundo Public Library with golf industry stakeholders. September 19, 2012: City staff made a presentation to the City's Recreation and Parks Commission during its regular meeting. + September 25, 2012: City staff made a presentation to the Kiwanis Club. October 3, 2012: City staff provided a progress update to the City Council's Golf Course Subcommittee. 350 Main Street, El Segundo, California 90245 -3813 Phone (310)524 -2300 Fax (310) 640.0489 +K 418 ► October 4, 2012: City staff made a presentation at the Rotary Club meeting. • October 11, 2012: a presentation regarding the matter was made to the City's Planning Commission during its regular meeting. • October 11, 2012: City staff made a presentation to the City's Economic Development Advisory Council. ► November 18, 2012: the El Segundo Chamber of Commerce voted to endorse /support the Top Golf matter. • December 5, 2012: the City Council's Golf Course Subcommittee reviewed the matter. • December 19, 2012: the Recreation and Parks Commission reviewed the findings and analysis. • Between October and November 2012, City staff met with most business oriented hotels within the City of El Segundo. ► The City posted the Powerpoint® presentation, draft' schematics, and other matters on the City's website (else undo.or lnewsldis la news.as ?NewsID= 1149 &Tar etID =1). The City has posted and (continues to post) all disclosable public communications regarding the Lakes matter on the City's website (www.elsegundo.orc /depts /citycleris/documents.asg). Such proactive actions are in addition to the multiple opportunities taken by interested citizens to provide public comment to the City Council during its regular meetings. This matter is also being extensively scrutinized by media coverage (see e.g., www.easyroadernews.com /74699 /residents- assail- top-golf /; www.dail breeze.com /20121105 {local- olfers- balk -at- ro osed -chap es-to- the- lakes- in- el- Segundo- course) and various social media outlets. Based upon the foregoing, the City Council respectfully disagrees with the allegations set forth in the October 151h Letter as to purported violations of the Brown Act. Moreover, as you can see from the Due Diligence and Lease Agreement ( "Agreement") that the Council will consider approving at its November 5, 2013 regular meeting, the alleged Brown Act violations set forth in the October 15th Letter are without merit. There are twelve specific conditions precedent that must be accomplished before a leasehold interest could be created. Accordingly, the City is not committed to entering into the draft Agreement since there are numerous issues that must be resolved in public meetings before the Planning Commission and City Council before any leasehold could be established. Such matters include review and potential approval of a conceptual plan for the golf course and the driving range improvements; review and potential approval of 350 Main Street, El Segundo, California 90245 -3813 Phone (310)524 -2300 Fax (310) 640.0489 61 419 a recommended action under the California Environmental Quality Act; review and potential approval of the land use entitlements that would be needed to allow for the uses contemplated by the draft Agreement; and many other items that identified in the draft Agreement. However, in an abundance of caution, to avoid unnecessary litigation, and without admitting any violation of the Ralph M. Brown Act, the Er Segundo City Council unconditionally commits that it will cease, desist from, and not repeat the actions challenged in the October 15"' Letter and briefly described above. Note that the El Segundo City Council may rescind this commitment only by a majority vote of its membership taken in open session at a regular meeting and noticed on its posted agenda as "Rescission of Brown Act Commitment." You will be provided with written notice, sent by any means or media you provide in response to this message, to whatever address or addresses you specify, of any intention to consider rescinding this commitment at least 30 days before any such regular meeting. In the event that this commitment is rescinded, you will have the right to commence legal action pursuant to Government Code § 54960(a). That notice will be delivered to you by the same means as this commitment, or may be mailed to an address that you have designated in writing. Very truly yours, Bill Fisher, Mayor 350 Main Street, El Segundo, California 90245 -3813 Phone (310)524 -2300 Fax (310) 640 -0489 420 I-VA EL SEGUNDO CITY COUNCIL AGENDA ITEM STATEMENT AGENDA DESCRIPTION: MEETING DATE: June 16, 2015 AGENDA HEADING: Unfinished Business Consideration and possible action to provide preliminary comments and receive and file the draft Due Diligence and Lease Agreement between the City of El Segundo and CenterCal, LLC, with regard to the operation of a Top Golf facility on the driving range portion of the Lakes golf course and redesign of the golf course. (Item will be brought back for further discussion and possible action at a future Regular or Special Council Meeting). Recommended Council Action: 1. Consideration and possible action to provide preliminary comments and receive and file draft Due Diligence and Lease Agreement between the City of El Segundo and Centercal, LLC; 2. Schedule a date for further consideration and possible action regarding the draft Due Diligence and Lease Agreement; and /or take other related action.Rescission of Brown Act Commitment ATTACHED SUPPORTING DOCUMENTS: Draft Due Diligence and Lease Agreement (with Exhibits), April 28, 2015 Letter from CenterCal and Top Golf Areas of Understanding (Shared Principles) document from November, 2013 FISCAL IMPACT: $ Amount Budgeted: N/A Additional Appropriation: N/A Account Number(s): N/A PREPARED BY: Mark D. Hensley, City Attomey, APPROVED BY: Greg Carpenter, City Manager BACKGROUND & DISCUSSION: At its May 5, 2015 Meeting, the Council directed staff to take the latest proposal from CenterCal and Top Golf (attached letter dated April 28, 2015) and incorporate their proposed new deal points into the last draft of the Due Diligence and Lease Agreement (March 2014). The Council also asked that staff re- review the "Shared Principles" that were discussed in November 2013 and make sure that such had been incorporated into the draft Agreement. The attached draft Agreement has been sent to CenterCal and Top Golf for their review and comments. Given the length of the document and the passage of time since the Agreement was last provided and reviewed by the Council, staff thought it would be r helpful to provide the Council with a draft to allow the Council sufficient time to review 3 63 and comment on the draft Agreement. Staff will be prepared to respond to questions and take comments from Council and then further revise the document as necessary. Staff is also looking for Council direction as to whether it wants to have this item back at a Special or Regular Meeting as staff felt there was the potential that Council might want to hold a Special Meeting to further review and discuss the draft Agreement. ME 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_ 65 • •, 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 Section8. 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 Section 26. 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 • •, Section 31. 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 ................................... ............................... 41 Section 45. Consent and Approval Rights .............................................. 41 Section 46. Prevailing Wages ............................. ............................... 41 Section 47. Golf Course ................................... ............................... 41 it 67 DUE DILIGENCE AND GROUND LEASE AGREEMENT ( "LEASE ") Date: , 20154 (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 ") Top Golf International. Inc. a Corporation 30 Wes Pemhing"l "op Golr , r i C. a eels... uri limited 11iiRbilit). e ("Top (lall' 30 West Gua antorTop Golf Guarantor" or "Top Go1f30 West PeFShi tgl2p Golf ") 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 current 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 and sublease the Premises 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 "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. 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 (20`t') 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 and matters of record as re11ected on Exhibit L). 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 food/beverage 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 Emir! I pil mtirn dr,rumon I gromwtv i IF ;,,-. 5-Sol the same terms, covenants and conditions as those herein specified except that Lessee may not again exercise any previously exercised option under this section. 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 Forty -Three Thousand Seven Feur• Hundred Filly Steen : d- 4WN-'b" Dollars ($513 �� ,750 T','6:a6) per month ($525,00 ""''„ 0 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 to Lessor: an amount coual to three percent (3 %) of the gross reeeipls fbr all beverages sold on the Premises ( "Variable !tent "): and (ii) 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. The obligation to 12av Variable Rent shall commence on the second anniversary of the Premises Turnover Date. The Variable Rent shall be glue and 12 able to the lessor commencing on the first day of the third darter following the second anniversary oi` the Premises Turnover date ("Variable Rent Commencement Date") and shall be calculated based u sun the grogs bevera a sold during the first quarter following the second anniversary of the of the Premises Turnover Date. Thereafter. all Variable Rent l2avments shall be due on the first day of each quarter based u n the gross beverage sales from the quarter that ended just prior to the quaiter immediately precedent; the due date of the Variable Rentl2ayment. Within. I(r-, ' I i.ki� n �lnsomcnl 3?.fnncrH-nnrtie. :: iH}- �+xfwn 70 sixty day Of the termination of this Lease Lessee shall pay to Lessor all Variable Rent gauments owed to the Lessor based upon the payments being made in arrears. 3.3 The Fixed Rent shall for the first live years Following the Fixed Rent Commencement Date increase at the end of each ear by two percent (2%) and for ever} five - year period thereafter c +ire th term or this Lease e-m—eneing oi the Fbeed R Commencement Dat by ten percent (10 %). the Lease "1`.®...... h 14.-.. d R-"t- hall be "I'lt:. y—L- '�.l,c T_i l...-. n J.1 Nine l.l...,dmd Filly Light an( 33MO1 Wellefs ($38,958.33) • d 19ogifiniog in the eleye.nih . nr the T e e "T'a,..,, el,., T4.,W Pr'l 1, t lr.-- r -_r: and k! e ,1,....1 •l•l.;w Xta„_ .. A COMMIn r,l^l 1'M CON 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 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. the Variable 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 4 LrroO lhtktiLmn d. mm,ail uruiPrrly avame.,`- -r....H 1 -tkenr.wr,.lnsvenn•atf -la TI. Py nmtn 71 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 11G" 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 "TonGolf 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, 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 Fvvr: V114,11 11 dotomy.1l uruuerl'u nnm�;, Frer. w!- 4;- n' i�x. v.rrek�sv�i.rwHy+r�.�.rNywrm�mn 72 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 is not a party to this Lease nor a guarantor of this Lease challenges any of the Required Project 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 E mr! 16nkpiam II documoul yfui ky 11111711'.�"`s+�smti �n{MiBYkle tlklfHtlCllf ^`IYU�MlYP�"- 1/KM�r 73 object to any exceptions contained in the Preliminary Report, except those set forth on Lxhibit L. 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 added to and attached to this Lease as an addendum to 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 IExnjr! timknn%vn skwapnenl nrmarcly, in t MVh+-rrtgnrrt-!r-n"n 74 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 $2 -t,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 (x xivj 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 resser o< 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 building plans for the Golf Course Improvements and the Premises Improvements (collectively, 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 3"� -, '' e4- 44eesl rg andkzr TopGolf has hoe entered into construction contracts consistent with this Lease, for the completion of the Premises Improvements as described and depicted on Exhibit "13-Y" 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 W and 30 West IfeNshin.! ha- -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 V ro w! I.mkti.onn d... iem.a+t nr u".a c % Mk !I nu- 11,. 14m&4W*e 4q,'t--- 4.11"Will r ln.n, 75 portion of the Due Diligence Period set forth in Section 5.1, plus, if applicable, the sixty day (60) day extension period); however. such approval by Chevron shall not place any obliotions or restrictions on the City or the Property that do not currentIN exist; (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 Wes Guam Top Gulf 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 4e ffop Golf 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'1op Goir 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 Wes , aetw f"op + of f 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 "tee --rn,� octet **Top Gall'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 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 after the Commencement Date the legal descriptions for Exhibits A -1 and A -2 for Lessor's approval, and xiv 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; and, (x iv) Lessee steal I deposited four hundred thousand dollars ($400,000) into a special lurid owned and maintained by the e City for [lie purposes of'notentially funding a portion orthe cost to purchase and install lights on the golf course on the Property for purposes orallowing_goil'to be played on the course during twilight and alter sunset hours. 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 V'r -e! ! .h'J.uro .1.-11 a nly.nrr1V rk:urle. Fen. rvE-}. :n}.nn.rrYrH:.exnxrreFfnniperdr nn.nn iT 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 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 Wes an Top Gig-11' 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 40 -Wes( Guaranoo Top Gol f 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 10 I1mtr! Fhiknunrk 11rcur11eul 11MWO uawkildr -,"_.1 P wnwf�elerti�w�rrMt+y nry.eNy�wwwc 77 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. If the public hearings for the Required Project Entitlements are not commenced or completed within the Clue Diligence Period for whatsoever reason, such shall not extend the Due Diligence Period and the City shall have no liability to any panty for such. Within five (5) business days of the delivery by Lessee to Lessor of the Acceptance Notice, so long as neither the 30 West Guar.ntofl'oh Golf 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 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 Wass Go&m~ ]'o Caul f C;uararttow 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 11 F —r-j- rt_'_lh7 ko; uttm 11, w,. ou•nl urn a rrfv �uuire ;14ww' "r H p". ".lr arnrnn: i t r- 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. 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 filed 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. 12 I-:rrur! I'ukuurrn J hit nnt rui urm nrrtr ulktil '_�- .- �-.,:' ::i.hnw- n -0nwnnrnl -Nn.h- r ,.m; 79 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 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 13 E:rrirrl Unknown ilnrii ni imI Li mperl% naiiw.'. t P i �d 1 --1 1 - rwewpwrHrnu»i.� • , 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. 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 14 Furor! Unknaan dommm t waiserit• %�n tie ""K4 - f"K— PPr*nrnta i 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 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 fivetliwo million dollars ($53,000,000.00) 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 ,two ne Million Dollars ($2-1,000,000) covering the Due Diligence Period), and thereafter prior to the Premises Turnover Bate (evidencing coverage in the amount of live thme million dollars ($53,000,000)), and renewal policies shall be delivered to Lessor within ten (10) days before the 15 i Error'. IInklIDWtp iParuuw+ll 11MI)erh e�niF ie. CwMC�rS- i= nl. na+ru- el.��.��hprrpiE•tyrnninr. MA 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 o£ (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 Per-shi g and 30 West it 4- m+g1_ap Golf '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. 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 1st day of June of the sixth (6th) 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. 16 ILrlgY Itnkuuss it ma-art, uusnr. YN fr6lrswnirsrrve nnvsa lyr +ln�t +saner • 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. 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 17 E., I -n i. l kcu! v-gl wo'r i�iuiriFrrarl�nl+ rrewn- d.mmeir!- Ki.vri.rrlwacnnen • I 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. 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,. 18 furor! Uidusox- itJwniltarvl in," errs rmy damn i 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 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. 19 II•:rrnd I. rr I%unren 4 I awurn •uI nr rxr r r r nntc.iirrxrt nfi�nawminn mn�F -rmt rMr+mnn F.R. 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 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 20 l':rv•!r r! l- lgknrnvrr rfu�•u nl +err! irrn i.• �!r ¢!ul�t. Fri• nvS- I��. ��+r wvr• sFnre >�r«�eNytev+grt•rw- i.nnse: F 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 38— Wesl PefshingTop Golf , 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 lkei;shi gfiop Golf delivered to Lessee and ;n tix!,.t u�r••i -;^ Tnp Galt' 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 the twenty percent (20 %) discount offered to senior citizens and active military personnel. 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. charge 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 the public that are maintained in a similar first class condition; (b) provide discounted monthly user access cards for frequent customers similar to those provided at other Top Golf facilities; (c) use commercially reasonable efforts to promote youth and junior golf programs, including but not limited to allowing the "Good Swings Happen" program to continue as well as associated camps, programs and lessons for junior and youth golfers; (d) utilize commercially reasonable efforts to allow golf 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 and it shall also bet%vicen the Initial Term and Premises Turnover Date utilize commercially i Cason: bl •• efforts to em to two olf ofessional that currently provide lessons on the Property; (e) if the Site Plan (including the parking layout) will allow, use commercially reasonable efforts to include a putting practice element on the Premises to replace the existing putting practice element on the Property; (f) allow junior high school and high school players attending schools located in El Segundo and Manhattan Beach to use the portion of the Premises used as a driving range between the hours of 2:30 p.m. and 5:30 p.m. at no charge when such is a formal school practice event and at a rate commensurate with fees charged by other driving ranges open to the public that are maintained in a first class condition when they are practicing 21 Ii_t•rur'. 1!nkuown ryu_ci waI gMoert, vn tknrewexeenryre ry�rMr nemn at other times (provided that such times are prior to 7:00 p.m. local time); and, (g) use commercially reasonable efforts to introduce the game of golf to a wider audience and work with PGA of America, PGA of Southern California, and the SCGA in this regard. 11.5 Lessor shall not be required to furnish to Lessee any facilities or services of any 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. 11.6 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 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 lzejtsh ~g-['op poi f 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. 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 22 Il rroe! UGknnwn dorumem p-wrt rpapike, —A 141k 'fa* -tkKw m j pe �.rM4 +tnmt We 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 "M 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. Section 15. Inspection and Access 23 I�,.v -r.r 1 :ak,r.... l ehaimp- vii nraawrrl • irnaie.{im+n -1 wkxowFr+{rx • E 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 such action or proceeding by counsel approved by Lessee in writing, which approval shall not be unreasonably withheld, conditioned or delayed. 24 1 i. }rirrl I nkra m.n shn 1. a,vo I I.. -, oq I% ny P .f, n*Ht" 91 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 PershiagL or TopGolf or any Premises Improvements related to the use, occupancy or development of the Property by or on behalf of Lessee, 30 West Pefshifvg_ 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 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 25 i'— ! I'ial.asussm Jinin -w arousal+ nMUt+, PIWI F +�6niswwa4nrxrnenFpwnR�#MWM+tnew W, 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 34-Wm#- GtmfaaW1"op Golf 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 3[1--West-�rshing,W) a Golf through the date of the Total Taking hereunder). 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. 26 r . 1 : • n rI1GS71914! l tm xrry r n ste,[irwrN! kerWaerwn:br+.nrr:et }m,p�wy ndiren 93 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; 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; 27 I:,, I rAuc +, n+enI [,r0i, en. -.11 `- ,.,=- s- ,:RAC,w.rdemrate h rMproly 151K .. •, r t 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 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. 28 lirrnr: I!nl�nn.rn ,Ivitn nti�ni E.�rn.na °ir nnmc. i- rv�rFF- nW�w +�wrrlr.rnennriytrriy._- ..,�,,: �,- ..;;;::.� 95 Notwithstanding the foregoing, Lessor hereby approves the sublease of the Premises to 30 idlest Pershing aiiki the ',O -W tst- Rershi-ng -w 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 D,,....":... qra Top Golf of such termination and shall provide 30 west Pei-shin g 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 immediately upon termination of this Lease; provided that (i) in connection with its execution and delivery of such lease, 30-'West-Pershing. andkor 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 CenterCal 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 P hint1lop Golf (-aw&Ope fats ro 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 o 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 3" "s:t +orterte l'op CiolE` C;uarentnr or CenterCal Guarantor under their respective guaranties. 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 29 IFuror." I "Anti"" dkrmme,"I imparm- arrr i J. er 1 Unho 1 n.4..r• -Pr J i.wp«rr++• h rr m • T 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 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 30 Frmr! d7aUg"u dinumout orwta, nriurr_Fr�erl Eln3.. nxwrnetdrnmen+ysrw�+rrFy- nnnrrr 97 (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 subiessec to effect such cure (including any such litigation to gain possession of the Premises from Y4 -We t l'op Coll 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. 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 31 I s_.!.!_' ingM nrancrkw Le In 1 tot -nnmrr • - V I. W ' l 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. In 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 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 iJ I•,rrtrr! C'r, I�nnwn �ncs�ntpnl nmttcrl t- wtntns.% marl- 1- nC. wm .ratlmarnw^+ei�nrgnrril- m�. »ee I 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 the fee and the leasehold estates in the Premises. 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. 33 Fmr ". linluwuwo dwumvil tirtmenr n r;- t,- Ni. �n. ..�rsi..riamn�t- rsw�.eek ±imirr. 100 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 Attornment 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 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 34 Ff.-'! A :rCknm.n [InT+ts±C rnt irrnnrriv"a nk—V E'M4UK .'-"1 mih Im EBEnic A t it F"i r'1! Hrtr. 101 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 «,a inglo Gott' (ol- Terk olt=if 0 West Wit) 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 $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 Quam+ukWror G«1f 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 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. 35 1 Lyrar!I +ake— o'Welpmrnl ar.11rdu HRf IL•. "a rr.,. �K.nm wIPY1VC1gArlH ;trrry�r �:� °i n, 102 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 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 36 I F ra rr!. l'..t ki p .— t. duct.i . r I p, .1—,; v nuen r<l,rr «rF4wrlrxu+wr -w k'rrwr R— J,rv+p.w'.-- 103 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 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 37 IIt rriir? 1 ni.no n ohtrii uleoI is roiwO t�,�u r;Y rr +n # n#» rrn- rl.nwr.nwr�7rr}nwrn it .. 104 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 E1 Segundo, CA 90245 -4635 Attention: City Clerk With a copy (which shall not constitute notice) to: 38 IE.rrnr!L'nkoumi durumenl }rrulicrtr uallly, i1:;:k"'moo di+vrux stMpru�w�.iy +H� 105 The City of El Segundo 350 Main Street El Segundo, CA 90245 -4635 Attention. City Manager If to Lessee And/or Guarantors: ES Center-Gal, 6L., r600 ,a,r,— rat4s,;n Ss,.tcc + Formatted: Justified, Indent: Left: 0.5 ", First El Segundo, CA 90245 line: 0 , Tab stops: Not at 2" CefAe Cal r 1 r + Formatted: Indent: Left: 0.5 ", Keep with next, i600 Emit iTieiMifin $8tfBBc Keep lines together H cr„_seguli,a....A.. GA 90245 Formatted: Justified, Indent: Left: 0.5 ", First o° line: 0 ", Keep with next, Keep lines together, AtLention.: —mod W Tab stops: Not at 2" 30 West Pershing, r r G r� 909 M lalnui. Suite 2- 111 1'hoaei (916) 477_1709 F-a- . (816) 477 5794 30 West Pefshing, LLC 909 Walnut, Suite 20 Inc . .— rc) fi -644 6 Phenei (816) 477 1700 >ax (816) 472 5794 TopGolf USA Inc. 1717 McKinney Avenue 8th Floor Dallas, Texas 75202 Fax: (866) 577 -4612 Attn: Randall P. Starr, Vice President Development 39 IF r.-,,r! UnAn —ii d.yu vcm ornwil} 00"— e f With a copy (which shall not constitute notice) to: Griffin Fletcher & Herndon, LLP 6857 Amber Lane Carlsbad, CA 92009 Attention.: Edward Krasnove, Esq. 8- �iiT feSSit )f1E1i•- � {�I'}�E��itifi�Fil Ac fin c— 3+. Suite "log Kansas City. KfiSSExirT Att : Locke Lord LLP 2200 Ross Avenue, Suite 2200 Dallas, Texas 75201 Fax: (214) 756 -8582 Attn: Donald A. Hammett, Jr. Or such 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 40 IE, rur! I pi 11 by 11 J.' uI .III propel I4 ix limn.f MmPFd uisxrn«n d- 411"fol tnn�v�Mlyywwwr 107 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 41 C— irrn..0.1y n��mn_krnrr J xkn rw+� F rer. �w w }wMV -name I. 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 42 I " - , i ,3..:.v.va I... ......... I - + rrisur. Frv+ rr!- I+ ninHnrn- �3urrMnr+�ry+rr.prrly- !rern�r- W E 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. Audit [1-Mentimmlly Onnitteall The City shall have the right to conduct annual audits either ►i it It City staff or Formatted: Indent: Left: -1^ Certified public Accounts, an audit of five gross beverage revenues for purposes of determittine the accuracy_ of the Variable Rent calculations and paynlents. If such andil reveals that the City was underpaid by three percent or more for [lie audited period Lessor shall pay the amount of the underpayment plus a ten percent (10 %) thereon to the City within thirty days of beine presented with a copy of tite and it from the City Plus the cost of the audit. 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 43 1 l''n•nr' I'nikunwn k6 umcnl n uerl• n:ims F wwr F rtkah «+r 4nr r nKy r } t+Fr nn. . 110 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 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_. section 48. Business License Taxes Formatted: Font: Formatted: Font: Bold Lessee her& waives and agrees it shall have no right to offset the amount of business license taxed owed to the City pursuant to El Segundo Municipal Code Chapters 3 and 44 teased rog sales tax the City receives from operations occurring on the Premises during the term of Lhls Lease, Formatted: Font: THE BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK 44 IFr, or! 1 nlnwnr., ,h— ww+ ,I lw,lovrl+ u:unr. hrr.,r; { -aA .w .dsMVrnern! I+r lrrHr> rarer .. Formatted: Justified, Indent: First line: 0.5 ", Space After: 36 pt 111 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 13v: 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 45 I•. r., w! (,.-kne...1 Y1151'111(lLfl 1 I1rnS141'i f• ",IIYH.isWyepj- ysjyrl/Awi 41me +Ntii! pnMlws^4�r- nntw�i 112 Exhibit "F" — Form of Memorandum of Lease Exhibit "G" — Prototype Facility Exhibit "H" — Form of Guaranties 46 F.rrar! C�nkno+.n �iin•n toeni yirunr�'Ix ienmu. Fs�m. �[- i= xkp «wx�tl�:n�w�grn {- ��nglrrt -.�nn� 113 EXHIBIT "A" LEGAL DESCRIPTION 114 Exhibit 44.,x» Legal Description PARCEL 11 (413 &014 -915) PARCEL At' PARCEL i, IN r.M C OF EL. SEGO, IN TM COUNTY OF LOS f[_ LBS, STATE OF CAL MO LA, AS SHOWN ON K-A-Y- NO, 17749, FRM IN VDZ ;97 PAGE 5b Q - KCIS1_YE OF PARCEL MS'S, IN T OFFICE OV T COUNTY MC ER OF SAM OOH: EXCEPT THAT PORTION OF SAID LAND DESORIB W IN ORANT DEED PUMORDED MARCH 12, 1999 AS 4 t� OF�fiAL ?BOOS, ALSO EXCEPTING AND RESERVING TO C VIRON U,S,A, INO„ A PENNSYLVANIA CORPORATION, ITS SUCCESSORS AND ASSIGNS, ALL OIL, [SAS AND OTHER. HYDROCARBONS, NON - HYDROCARBON GASSES OR GASEOUS SUBSTANCES, ALL OTHER MWERALS OF WHATSOEVER NATURE, WITHOUT REGARD TO S-MMARITY TO TIM ABOVE NTIONED SUBSTANCES, AND ALL SUBSTANCES THAT MAY BE PRODUCED T REWT -'H FROM THE PROPERTY, BY DESV RECORD-ED MAY 24, 1988 AS INSIA [ OF OFFICUL RECORDS, FARCEL B; A PARCEL OF LAND BEING A PORTION OF PARCELS 7 AND S OF PARCEL IMAP NO: 17750 IN T CITY OF EL SEGUNDO. (BOUNTY OF LOS ANODES, STATE OF CALIFORNIA, AS PER XNW RECORDED IN U _ INCLUSIVE, OF PARCEL MAP RECORDS IN T OFFICE OF Tim couN RWORDER OF SAiD OOUN` Y AND DESCRIBED AS FOLLOWS: EEOINNINO AT TIC MOST NORTH WEST CORNER OF SAID LOT 7, THENCE SOUTH 090 46, 55" EAST ALONG T .R WESTERLY LINE OF SAM LOT 7 A DISTANCE OF 134,51 FAT; THENCE, NORTI4 CJ" STOP EAST A DISTANCE OF 202,06 FEET; THENCE, SOUTH 261106,201? EAST A DISTANCE OF 1,00 FEET; THENCE, NORTH 639 5314011 EAST A DISTANCE OF 607,7-1 FEET TO A POINT IN Tim NORTH LINE OF SAID LOT S, SAID POINT BEARS SOUTH 7J® 28° 25" EAST A DISTANCE OF 27.04 FEET FROM THE MOST NORTH EAST COMER OF SAID LOT S; TFUiNCE, SOUTH 7312812511 WEST ALONG THE NOR.TFIERLY LINE OF SAID LOTS 7 AND A DISTANCE OF 78189 FEET BACK TO TFTE POINT OF BEOI NING, EXCEPT ALL Off, OAS, ASPHALTUM AND OTHER HYDROCARD ON SUBSTANCES, AND ALL OTHER MINERALS WHETHER SIMILAR TO THOSE JEREINABOVE SPECIFIED OR NOT, DEPOSITED OR CONTALNED IN, OR THAT MAY BE PRODUCED FROM THOSE FORMATIONS, ZONES OR HORIZONS LYING .BLOW FIVE HUNDRED (500') FEET FROM THE SURFACE OF TIM ABOVE DESCRIBED REAL PROPERTY, TOGETHER WITH THE SOLE AND EXCLUSIVE RIGHTS AND PRIVILEGES TO INJECT INTO ANY FORMATION, ZONE OR HORIZON .LYIN13 BELOW 'ME I- RJNDRED FEET (500') FROM THE SURFACE OF SAID REAL 241 115 PROPERTY, 'Id fMR WET OR DRY CIAS, RZOARDLESS OF Mi--BRB TkM S AM-0-B IS PRODUCB0, TO STORE TW- $ A N-M TMR- Fl 1 N., A N_D TO "-- M O'V B 0 ff L WIT"-RAW TtW SAID TMRURQ 1\4 AT ANY T-M-, OR FRONT TIME TO TIME, FROVLOSI) TAT SAID ORANTOR, ITS SUCCESSM AND ASSIGNS, SHALL NOT HAVE ANY IUQHT OF ENTRY AND SMALL NOT ENTER OR M- N ANY PART OF THE SURFACE OF SAID REAL PROMTY OR IN, UPON OR THROUGH ANY PORTION OF Tl M SUBSURFACE OF SALD "MAL PROPERTY W M-CH LIES WrrH-N FIVE H-t-WI)RED ($00') FEET VERTICAL PROM THE SURFACE OF SAID REAL M-f OFERTY., OUT SAID CIRANTOR, ITS SUCCIISSOR, AND ASSIGNS SHIALL HAVE THE- -RIGHT, IN CONNECTION WITH THE FOREGOING R-BSL31LYATION AND EXCEPTING, TO PRODUCE, EXTRACT -AND RE-MOVE SUCH OIL, GAS, ASP LT AND OrTHER. HYDROCARBON SUBSTANCES, AND OTHOR M-M DEPOSITED OR CONTI-ALNED IN OR THAT MAY BE PRODUCED FROM FORMIATIONS, ZONES OR -HORIZONS LYING BELOW FIVE R--"--RED (300') FEET FROM THE SURFACE OF SAID -REAL PROPERTY. BY Mm- NS OF WRm-$,TOcK, SLANT OR DIRECTIONAL DRILLING OR ANY OTHER -METHOD OF PRODUCTION OR EXTRACTION CONDUCTED FROM, ON OR MLIN -A-W- OTHER REAL PROPERTY TAN TAT` HKEREINABOVE DESCRIBED, AS RISSERVED IN DEED REOURDED DECHM(BER 1, 1947 AS INS TRL- II&ENT NO: 5 3 4, OF 0"- XCIAL RECORDS, ALSO EXCEPT ALL OIL, GAS AND OTHER By- DA-M-ARBONS, NQN-HYDROCARBON GASSES OR GASEOUS SUBSTANCES, A LL OTHER NUMNERALL 8 OR WHATSOEVER NAT M-, WITH=OUT REGARD TO SIMILARITY TO THE ABOVE M-llNTTQn.D SUBSTANCES, AND ALL SUBSTANCES THAT MAYBE PRODUCED THIVIRRWITH FROM THE PROFERTY AS -RESERVED IN DEED RECORDED MAY 24, 1.988 AS INMI, AU WENT N OF OFFICIAL RECORDS. ALSO EXCEPT ALL GE0TJnRRAL RESOURCES, EM33RACING -INDIGENOUS STEA-KI WATER AND HOT SPRINGS, STEAM- AND OTHER GASSES, 14-OT WATER AND HOT DRDMES RESULTING FROM WATER, GAS OR OTHER FLUIDS ARTIFICIALLY INTRODUCED INTO SUBSTANCES FORMATTONS ITMAT OR OTHER ASSOCIATED ENERGY FOUND BENEATH T-10 SURFACE OF THE HARTH, AND BYPRODUCTS OF ANY OF T-M- FOREGOING SUCH AS M-1-1-MRALS (EXCLUSIVE OF OIL OR HYDROCARBON GAS THLAT CAIN BE SEPARATELY PRODUCED) WHICH ARE FOUND IN SOLUTION OR ASSOCIATION WITH OR DRRrVED FROM ANY OF -TIM FOREGOING, AS RESERVED IN DEED RECORDED MAY 24, 1988 AS i'Nsj'gvmu "r.jgQ MI -- _5 =, OF OFFICIAL RECORDS- ALSO EXCEPT THE SOLE A►D EXCLUSIVE -RIGHT FROM TIME TO TMIE TO BOFA DRILL AND MAINTAIN' WELLS AND OTHER WORKS INTO OR TIR OUGH SAID PROPERTY AND THE ADJOU-nNO STREETS, -ROADS AND HIGHWAYS BELOW A DEPTH OF 500 FEET FROM TIM, SURFACE 'ITTLIR-HOF FOR THE PURPOSE OF EXPLORING FOR AND PRODUCING ENt`,lWY RESOURCES, TO PRODUCE, INJECT, STORE AND REMOVE FROM.- AND THROUGH SUCH WELLS OR WORKS, OIL, GAS, WATER AND OTHER SUBSTANCES OF WITKITNER NATURE, INCLUDING THE RIGHT TO PERFORM BELOW SAID DEPTH ANY AND ALL OPERATIONS DEEMED NECESSARY OR CONVEN-MNT FOR THE OF SUCH RIGHTS. THE RIGHTS IM-REINABOVE EXCEPTED AND RESERVED TO GRANTOR DO NOT INCLUDE AND DO NOT EXCEPT OR RESERVE ANY RIGHT TO USE THE SURFACE OF TIM PROPERTY OF THE FIRST 500 FEET BELOW THE SURFACE OF THE PROPERTY OR TO CONDUCT ANY OPERATIONS THEREON OR THEREIN UNLESS tMREINAFTER SPECIFICALLY EXCEPTED AND RESERVED, ALL RIGHTS AND INTERESTS IN THE SLWACE OF TIM PROPERTY ARE 242 116 HEREBY CONVEYED TO GRANTEE AS PROVIDED IN DEED RECORDED MAY 24, 1988 AS JNSTR,UMENT SQ. 81-X23876 OF OFFICIAL RECORDS, PARCEL 2-.(413&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 890 56' 00" EAST, ALONG THE NORTHERLY LINE OF SAID PARCEL NO. 6, A DISTANCE OF 45,20 FEET; THENCE SOUTH 000 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 890 56' 33" EAST A DISTANCE OF 135.00 FEET; THENCE SOUTH 000 03'27" EAST A DISTANCE OF 60.00 FEET, TO THE SOUTHERLY LINE OF SAID PARCEL NO. 6; THENCE SOUTH 890 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 00° 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 243 117 THE PREMISES TMS NX91BIT O BE PREPARED IPTII-IIN MM MJND D TWENTY I)XVIV OP COMMENCEMENT :DAIS"A D ATTACHED RUM TO. 3.18.14 118 EXBMT A -2 THE GOLF COURSE THIS EXHIBIT TO BE .PREPARED WITHIN ONE HUNDRED TWENTY DAYS OF THE COMMENCEMENT DATE AND ATTACHED HERETO. 3.18.11 119 EXHIBIT 66B" SITE PLAN 3.18.14 120 C�EXHIBIT �r 1. r'1 m r N^^ V/ C z 0 O D O M z m r m Z X 0 4 n C V I m o y r R m (E)= W z rn - f , a 1 �r 1 I sr I •i 1 1 I • 1 1 I I 1 1. I 1 1 I 1 • l I' 4 111 1 1 I �♦ 1 �\ 1 t 1 1 1 I J r.r 1 � 1 I1 'i I 1• 1 1 1 I/ .( 1 121 EXHIBIT B 1 PRELIMINARY RY BITE PLAN r- 1 G m r N m C O D r 0 Z rn z 0 I•� m 0 a n C C/y rn , 07) Go �f a i.� r.r ve-�` 1� .,.ate' N 1\ TV FIT I TRIM • f F 122 2 ION 99 .� O 1 L i�Tl mM c #" R �$$ z > �_ 122 3.18,14 14'Af-11 BIT "B-l" efA_IKL(MLNARV Wl LIX�L rN), II I liv 123 EXHIBIT "C" SCE LICENSE AGREEMENT 3.18.14 124 EXHIBIT C LICENSE AGREEMENT WPx\RVW\AGR50945 LICENSE AOREEXUT RP File No- W05- 91 -005MM THIS AGREEMENT, made as of this 24thv) day r of .1UNIL , 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 SEGUN ®O, a Municipal Corporation, hereinafter called "Lioeness1r; 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- 248 125 W14 1 " l J WPX \R` \AOR50945 2121 pppp �1 wIVONDI This license shall be subject to those covenants, conditions, restrictions, reservations, exceptions, and rights and easements, all as get forth on Exhibit S, 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 crosssarms placed on said structures, and other fixtures, appliances and appurtenances connected therewith, necessary or convenient for the construction, operation, regulation, control, -2- 249 126 WPX \RVT \AGR50945 l,U1VL�� 21 z1 grounding and maintenance of electric lines P'' "TRUMRA 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 -3- 250 127 WPX \RVW \AGR50945 Wil { Ww; c 2121 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) 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. -4- 251 128 WPX\RVW\AGR50945 .wil I hAQ c., 2121 P" 1111INW) (4) ADczJntJQRL 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: -5- 252 129 WPX \RVW \AGR50945 4VlV 1 kit; 1) 2121 PI, 'TAINnn To Licensor: Southern California Edison Company Regional Manager Land Services Division Real Properties and Administrative Services P. 0. BOX 410 Long Reach, California 90801 To Licensee: City Manager City of El Segundo 350 Main Street El Segundo, CA 90245 Each Party hereto agrees to promptly notify the other of any address change. (6) Liaj2ility 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. -6- 253 130 WPX\RVW\AGR5 0945 W'Y I ik; ,, 21 P-1 r 1rrOW, (7) Height-Linitationag, 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. (S) Maintgnance By_Licensoro 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 Licensorts 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 -7- 254 131 WPX \R'VW \AGR50945 WiI I hft; J,, 2121 r "r ORM) proposed improvements. Licensee shall obtain Licensoros written approval of said plans, including any subsequent modification thereof, prior to making any use of the property. Said approval shall not be unreasonably withhold 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) AraQ11e 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 -g- 255 132 WPX \RVW \A6R5094b +L+UIV I I I j 2121 r' °rP.UNna 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) Dget 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 ouch dust, ddor, noise or other nuisance disturbances, (12) Rest cider and Herbicides: Licensee agrees that any pesticide or herbicide applications on the licensed -°9- 256 133 wPx%Rvw \AGR5o945 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 *.VQ►d 1 ha4; #a 2121 law. This will include, but not be limited to, contaminated containers, clothing, equipment or any other contaminated material. (13) Hagar.!Jous Was' Ps 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) - UA!4eraround Facilities: Licensee shall construct no underground facilities other than irrigation and drainage pipelines and electrical and telephone lines, -10- 'rnumniv 257 134 WPX\RVW\AGR50945 W14ImuiJ 21 21 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 ) Perkzaya and Landsaapj nca :_ Licenesee 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) gencinge 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 and of the access road required in Section 10 herein and shall be designed to accommodate Licensorts locks. Any metallic fencing shall be effectively grounded by Licensee. Licensee agrees to maintain said fencing at Licenseets 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. -11- 258 135 WPX \RVW \AGR50945 AiV141M E 21� (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, 1965, 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 -12- 259 136 WPX \RVW \AGR5094o i1Jwu i�., 2l` �' � °r11Nn1 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) - License; Licensor understands that it is Licenseers 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 -13- 260 137 WPX \RVW \AGR5094b '.JUN i RKW EJ 21 ?1 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) TayAs. Asgeasmenta and Lienst 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 Licenses 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 -14- •prll�n� 261 138 WPX \RVW \AGR30945 44UJ i (ttJ19a B,s 21 ?,1 with interest at the maximum allowed by law, from the date of expenditure by Licensor. (23) OgyJa Ling Lair: 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 lawns 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. -is- 262 139 WPX\RVW\AGR5 09 4 b 4.a�lV I I'U'"tiG s , (2 5) Te= nat J!2n 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 6o 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 -16- 263 MR WPX\RVW\AGR50945 21 L 1 IrRUNW) 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 Licensorfs 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) ndommnt: 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. -17- 264 141 WPX \RVW \AGR5094 b %0t/1% I hhV I., 2121 OR '"FlOnq (27) A— tto= sy 9asa 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 recaive, in addition, to any other relief that may be granted, the reasonable attorneyfe 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 CITY OF EL SEGUNDO r "Licensee" By +�;a -Gy c:ierx -Is- 265 142 38233 1255224 G 21 a, TICOR TITLE INSURANCE COMPANY OF CALIFORNIA 'POIINRh- NW. RECORDED NOVEMBER 1, 1974 IN BOOK D6460 PAGE 733 OFFICIAL RECORDS. XX. RECORDED MARCH 1, 1975 IN BOOK D6578 PAGE 104, OFFICIAL RECORDS. ':Y. RECORDED MARCH 15, 1976 IN BOOK D7006 PAGE 418, OFFICIAL RECORDS. SAID MORTGAGE HAS BEEN RELEASED AS TO THE EASEMENTS SHOWN AS ITEM NO'S. 8 AND 9. 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) ?OR : 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 50.00 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 B. ALSO BEGINNING AT POINT WHICH BEARS SOUTH 89 DEGREES 59 MINUTES 54 SECONDS TEST 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 30 MINUTES 42 SECONDS WEST PARALLEL WITH AND 5.0 FEET AT RIGHT ANGLES FROM ` NORTHEASTERLY LINE OF LOTS 9 AND 10, 222.20 FEET TO POINT IN WESTERLY LINE OF :,OT 10, WHICH LIES SOUTH 0 DEGREES 03 MINUTES 13 SECONDS WEST 6.77 FEET FROM :40ST 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 SOT 11 TO POINT IN WESTERLY LINE THEREOF, ALSO BEGINNING AT POINT IN SOUTHERLY aINE 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 NORTHEASTERLY 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 05 266 143 88231 1255224 708. TICOR TITLE INSURANCE COMPANY OF CALIFORNIA 2i 1�I lerldonh 7.- AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE PURPOSES STATED HEREIN, AND INCIDENTAL PURPOSES, IN rAVOR OF : CITY OF EL SEGUNDO# A MUNICIPAL CORPORATION (NO REPRESENTATION IS MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT) FOR s PUBLIC ROAD AND HIGHWAY PURPOSES RECORDED s FEBRUARY 26, 1953 IN BOOK 41067 PAGE 370, OFF :CIAL RECORDS AFFECTS s THAT PORTION OF LOT 12 AS PER MAP NO. S OF THE PROPERTY OF THE SOUTHERN CALIFORNIA EDISON COMPANY, LTD.,', RECORDED IN BOOK 3 PAGE 5 OF MAPS, DESCRIBED AS FOLLOWSs 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 06 267 144 88231 1255224 G �"' ;i i ` A 2 TICOR TITLE INSURANCE COMPANY OF CALIFORNIA 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 FbR 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, PACES 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 07 268 145 38231 1255224 G 708 �ivl .4. 1 RI tern, TICOR TITLE INSURANCE COMPANY OF CALIFORNIA 21 Rl - IMINnry 10. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE ?URPOSES 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 ZECORDED : NOVEMBER 25, 1980 AS INSTRUMENT NO. 80-1192121 AFFECTS : DESCRIBED AS FOLLOWS: 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 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 NEST, 33.31 FEET FROM THE SOUTHEASTERLY TERMINUS OF THAT PARTICULAR COARSE SHOWN AS SOUTH 75 DEGREES 13 MINUTES 23 SECONDS EAST, 737.68 FEET" ON SAID .AP; 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 8514495 PAGE 08 269 146 88231 1255224 G 708 r.tQlva nya TICOR TITLE INSURANCE COMPANY OF CALIFORNIA Z1 RECORDED : DECEMBER 17, 1980 AS INSTRUMENT NO. 80- 1268253 nv '11141 p1 AFFECTS : DESCRIBED AS FOLLOWS: 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 121 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 60 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. COVENANTSo 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 09 270 147 88231 1255224 G TICOR TITLE INSURANCE COMPANY OF CALIFORNIA 706 lQuili ► n1w i 21 ?1 THAT PORTION OF LOT 12 AS SHOWN ON A MAP ENTITLED "PROPERTY OF SOUTHERN rrl1lVnry 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, FROM THE FOLLOWING DESCRIBED LINE: BEGINNING AT THE SOUTHEASTERLY TERMINUS OF THAT PARTICULAR COURSE SHOWN AS "SOUTH 44 DEGREES 21 MINUTES 07 SECONDS EAST, 1393.76 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 OFD SAID COUNTY RECORDER; THENCE NORTH 44 DEGREES 21 MINUTES 07 SECONDS WEST, 125.00 FEET ALONG SAID NORTHEASTERLY LIME 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 l; 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 .; 88231 12P5224 G 708 TICOR TITLE IN CE COKPANY OF CALUORNIA 18. COVEM08j, CONDITIONS AM RE8TRICTZON9 IN THE AWV8 RECORDED INSTROKENT. RESTRICTIONS# i3' ANYv HARED ON RACE# COLOR, RELIGION OR NATIQNA% ORIGIN ARE DELETED. %JQAy 1 ((t LV ka 21 ?1 ' "ailmnl 8514495 PASSE 11 272 MW Q t 25,03 11439 A—No AsOCZATZ8 M4 EXHIBIT �5 ��1 a A� s} 'd9 v +6- 1• Y� W+ Y�I+ cQ o vow 91 -004sa otQll?q4 �aY al a r` } : i can- r PAP iS � p � i rt AsIF wkp fig• "4` ** �r A9 Vii' •, a. � , GA ice► � �� r ��`i D � �I 5.55%t o "Aft 1` p, a/gr.g Sr-OPT. 2121 EXHIBIT QWY 273 150 89231 1255224 G 708 TICOR TITLE INSURANCE COMPANY OF CALIFORNIA GUARANTEE NO. : 8514095 TITLE OFFICER : A. WILLIAMS ViiIivk�4 FEE : $400.00 REFERENCE : CITY OF EL SEGUNDO GOLF COURSE 21 ?-1 EFFECTIVE DATE: JULY 28, 1988 ASSURED �r11RnR BURK* WILLIAM i SORENSEN LIABILITYs $25,000.00 NATURE OF ACTION: TO CONDEMN THE NECESSARY PARTIES DEFENDANT IN AN ACTION TO CONDEMN ARE AS HEREIN STATED. TITLE TO THE ESTATE OR IN'T'EREST 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 GAFII 13 � Is I., 8514095 PAGE 01 274 151 88231 1255224 G 708 `VQl l 1 iSF iE,r a: TICOR TITLE INSURANCE COMPANY OF CALIFORNIA 21 ( 1 4. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE li11l" 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 S. THE INTEREST OF SOUTHERN CALIFORNIA EDISON COMPANY IS SUBJECT TO: A 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 25, 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 02 275 152 88231 1255224 G TICOR TITLE INSURANCE COMPANY OF CALIFORNIA 21 a1 rl Irmi" n 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 53669 PAGE 8 OF OFFICIAL RECORDS. P. DATED JULY 1, 1957, RECORDED JULY 1, 19579 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 11 1962, IN BOOK 9 -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 D -2793 PAGE 8514095 PAGE 03 276 153 98231 1255224 G wQvik*tW7,0'B 2121 TICOR TITLE INSURANCE COMPANY OF CALIFORNIA 445 OF OFFICIAL RECORDS, INSTRUMENT NO. 3448. r P,,IlNnn 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 ROOK 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 HOOK 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 161 1972, IN BOOK D -5569 PAGE 715, OFFICIAL RECORDS, INSTRUMENT NO. 2642. UU. RECORDED FEBRUARY 1, 1974 IN BOOK D666 PAGE 403 OFFICIAL RECORDS. W. RECORDED JULY 1, 1974 RECORDED IN BOOK D6350 PAGE 122 OFFICIAL RECORDS. 8514095 PAGE 04 277 154 EXHIBIT 6'D" GOLF COURSE AND PREMISES IMPROVEMENTS 3.18, l4 155 E401t, V GOLF COURSE AND PREMISES IMPROVEMENTS GOLF COURSE IMPROVEMENTS Les@eo a►-d- 4 Ta4l. Pores appokftd by the City Cmmcil sh-4 work to Cher and reas- onably movelate for pvurposas of pr@Paring A pre-fi -ad-nmy and cor-w-e-ptoo doggy of thhe following goff jwwsio 4nd dubhom impmvo m-ents- W W_ presented to the City CQunca fpr approval oxWomt with the Logs-@ provistom-, 71M fiftal dash kqll be vor-ostont With ft - conmWal do-sign, Dwrin, the cgurv@ of d@pig-n And u- ate mmtr4aLm, a "standard of qu4tyl *hall be manta thro ho t the rtcwlly vm_vt_r=Wd fad-H-ty as nautmAy Agreed up=- by both parties. 7%@ qspq of th * jkgr _q wind 'Qua alt In t &N _@@xnant is intended tp xne-4n ftt the W—ift-rg, building n -Wiolej and fps alhall conyty design inbuest and courdimd=4 am craf %m T18% d 0 +-h f durable and vis-wiLlyattrac. h-vo L"d b-@@ and M.-afteplot W rwmdto Ri.depign-oh-ho im-prov@mento to "course ft@@lf, "Quality" is intended to Mean- that, in C-0-multation wAth- an Approved golf course Archit h irt im ,@qt, t--@ ode-ty rqt- q of the fAdUty, ohall be rnaintaimd or ?proved, th eat the Wol of diffi culty in playing ft- coun@ Ph-Aube -Maintoined or Wimm_v#d, Luba di-e- case of the bu-ilftngs and time course 1-m-proven-m-nts, the Q,W@ iftnt La tit they shall be of the same, or better quality an WhAt e-vargtatly exit, 71" %xW-bit coatathrw photos of the exitsg fad-lity as mam-plms of the ecurrtnt kvol of qu@kt)r, Ttw f=Wty is inwi&d to be in 'turn-kW condi4Dn at thititm of compldion xn@wd_ng chat the L@@@@@ sk-all provide Pi fad-lifty that to furnished awnd ready for operations, > Construction of new pro shop at approximately 2,500 square feet interior usable/lease able area, Detailed below are soxne of the key building improvem onto anticipated- o FMflity grally = Facility shah include a security cam- orasystem that provides surveillance of -the interior and extc-d-or of the facility to the satisfaction of the HS-P-DI The -newly conotructed 9 ft-eture shall contain A segregated axe@L for R pro-shop and starter/ check-.Ln desk as one combined unit.. Generally, this facility will be equipped with sufficient deakepace to facilitate placeft-w-nt 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 Oporatiorst T Ws facility will Include interrmt and phone cabling along with standard electrical outlets metalled as provided for in the latest version of the California Budding and Electrical Code, Shelving will be installed along the walls of the faWity In sufficient footage to provide for display of basic rot-all Items consistent with a golf pro-shop. Behind the main desk area, a small room accessible by a standara door shall provide suffifelcont space for -storage of basic- retall goods, o es o_ - separate male and fem.- ale restroom- a, fully A DA compliant to apecificatlorts that are current- as of construction year. Restrooms shall 278 156 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. o 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. o Caft-/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 extent practical, all eciulpme• nt that is in gOOLI reVair at the existing facility, not past its useful life shall be utilized and installed at the new facili . • Outdoor patio space with seating area a 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 279 157 green, Any wmai-nder putftg green may - u -ti - wi.t4ip y bc - Olized as, a put, rLg gmen the TOPGOU'Site, > Smerting poles and siafety netting will be histalled to erwure the safety of gvff-om the public, automobiles, and surmunding properties and righ ta of way per. golf course Archit, Mit recor=@Adatlons > Golf 00 M-@@ M-Od-00catio'n-c-I o Upon com- pledcon of venostrwtior , the 901f course With dmeriband to ift current cm- d-Iflo-A Tho approved Golf Cmrso Ar6dlwt shall provide an asses-6n3ent of dtfftcultyy of the course bed-ore and A Lessee will maintain -and or improve the difficulty of the Solif course, g The overall firm-1 deli p. of the gQlf course =dVicatio-M g-h-@Il xnai4%hd-n a safety mtft consistent or safer than exis- -1Z co r- MDm tin_ nd --, for tho Purposos C11 6to-nn—W—no 60-11f, cotam ga.ety, the, M-WM- um. -Safety Hnvvlopa (MS-E) Pratt be utilized its adopted by the Unitod SUAW GOV Amsociettion such that all -factors applicable fro-in @ Dean vs, M , th , MOR (Colorado) case shall be applifed In the calculations of struc"N and road-ways to any physically alftred portiorw of the course, in the event that during the desip- process, more stai►-gont safety measures an implemented in Caldoriila, the -Mutually weed upon Golf Course Architect shall doWadne the best practice for this type of facility: G The course shall have a Inimum n u - of two Par 4 ingeo, While no specific defiration has been established in yardage for distinguMiAg a r*PS'R, for A P-4r 4 hole-, effective length as dloflnod by ft USGA In conjunction with c-or-multatimn by a golf course -architect shall provall. in general, a Pox 4 is corwidered to maintain yardage with a ramie of 230-270 yards, In developing yardage, the Lessee and City will maintain an objectivv approach W-Mo providing flexibility, 0 Construction of now hole 3 green and bunkers and too box.. o Reset both par. 4 too boxes to accommodate now modifications, o M-Ae-ro possible, the w-dating tee boxes shall be leveled and 1e fihen�i, Lessee s-h@ll nvake every effort (within the project awpo and budget) in consultad-on unth an approved golf couroe architmt (approved mutually by the Lessee and City), to expand tee boxes. The intention of this of-fort is to in-crease yardage from tee boxes to holes to achieve the n*qmum. VSGA standard of 1,500 (or current m- inim um) yardage for a nine hole course to establish a Course Rating and Course Slope, h I no imtance shall the course modifications result In the toted yardage of the course to be shortened or lessened from its cur-rent and existing state of play, - 0 W ? The t- t current yardage of play for the existing rdne-hole course is approximately 1,340 yaxds ftom the w1dte tee line (Men's). The City out will be resp - . ble 280 158 for any costs, not including design or construction costs, for certifying the Course Rating and Slope per USGA guidelines. • 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. • When possible, Lessee shall utilize existing and available poles and netting not otherwise repurposed by TopGolf project. • 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. 281 159 z8Z Mn cu U. R U) cu d m 'Ali U0 uj 45 0 Fal We 161 J 1 'it r 162 EXHIBIT "E, 19 PERMITTEII EXCEPTIONS [TO BE FINALIZED AND ATTACHED WITHIN 60 DAYS FROM THE COMMENCEMENT DATE] 3.15.14 163 EXHIBIT 'IF" 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. IS. 14 164 EXHIBIT "G" PROTOTYPE FACILITY 3.18.14 165 Pago 1 of l EXHIBIT G PROTOTYK FACILITY http- ,//topgolf.com/assets/gallery/16/347jpg 10/30/2013 166 Pale 1 of 1 http; / /topgolf coo- /assets /gall /16 /350.jpg 10/30/201 167 Argo 1 of 1 http://topgol-f.com/assets/galletT/l 6/ 1 b.jpg 10/30/201 � .: Page 1 of! http ; / /topgolf.com/assets /gallety /16/346 jpg 10/30/2011 p4p 10 1 ,hap;//topgolf.com/assets/gallery/ 1613 5 5.jpg 10/30/2011 170 EXHIBIT 66H" FORM OF GUARANTIES 3.18.14 171 CONSTRUCTION. AND OPERATING PERIOD GVA— RANTEE AGREEMENT T-1415 CONSTRUCTION AND QPlxRATiNtrr PsRIOL) OVARA3`l'TER A.G( E ENT (his "Gunrwity ") is oxocuted and delivorod as of the 201 by, 30 West ' o�igeed: Forshitgg, Lt C, a lylisgouri 1_itrtitod liability c tasnpany ('�3U 1�1 aft k� r h ng" or `` }u?t(antor' °), Y whose €ddross is 909 Walnut, Suite, 200, Kansas City, I_ Q 64106 fbr th@ banotlt of tht City of 101 Segundo (_rsfr_md to herein as "City" or 11o.gporl% X :Pursuant to that a @rtai -n Duo Dillgenoe and Oround Lop-q@ Agreomgnt @ntor- into on or about 201A. thq ' °Ce?ntta ") by gind Wtwwli HS Coittorqu] � te o; uc, a tmww4 11 rtitod i1a -blltyty OQW -PRny (rte w d o orm n as tit@ b6ill - -- 't r a�1' ease@{') and the City, and subject to th@ terms and conditions sot forth in th@ Contragt, ap be amo -ndW in writing ft-9m thn@ to titre, the. Company has agresd (1) t9 onmplotg, or gauss to W oarrmpl_ d, c4rtain impro-v @moats to the Goof Courm attd th@ Prvmisoa as described in the contrast, or return the i'rQmis -@s to the same or bettor oondition as It @xiatod prior to the Cot moncem @nt Oat# and to (il) lgasg the Prerrdgm, subject to the Cotjdlt ors Preoeue!?t Set h in the Contrap-t, and op @rate a driving tango and oth @r faMitigs on the Pretrtls@* and Ray TWix to City as wall as wform other Qbligatlom under the Contract: B= 30 West P @rshing is @ontemploted as being a aubWaaee of tit@ Connogn -y z,tci it is ono of the Conditions Pmgodent under the Contragt that 30 .W @at Porahing b000m@ the sublomo@ under a Ground Subl @ass with Company gov @ring the Promises (the "SubleuQ "), Q Qa a condition procede_rit to the City's agreeing to enter in the Contmvt, 34 West Pershing is r- quirei to deliver two fully and properly oxmutod orig-inals of this Guaranty to the City: D: Capitalized T'orn?s usod herein and not oth@rwis@ definod shall have the mipective, t`noanings given such wrrns in the Contraot, NOW THEREFORE, in consid eration of th@ Contract, and for other good and valuabl_o oonaidoradons the receipt and sufciency of which ar@ h @ruby irrevocably 4gWowle-dgod by tho Omarcntor, the Ouaruntcrr agroes as follows: THE GUARANTY, (a) Upon satlsihotion of aJi Condition@ Precedent In the Centmot and the oc @urr@no@ of the Promises T'u rover Date In the Contract, Guarantor hereby guaranto €a all of the obligations of the Company (or any asalgnee of Company) tinder the Contrast with regard to (1) tits oomplotlgn of dw Promises irnprovornoa(,i or the return of the PrelnJaos to the spin® or batter condition as the Promises @xlatted prior to the Cotntn @ncommt Dat@ ("Promises Construction Obligations ") and Mill payment of all coats md expenses of every bind whatao @vor assoolated with such complotlon of the Promises Conatruotlon Obligations inol_uding all less, cost, dam4pa, liability, claim- or expense the City may suffer by reason of rnochanic's li @na or similar claims or by reason of the Company's or OUarantor's fRil_ture to oompleo the Promises Construction Obligations (32213! 66600; 497504,3 ) 172 ( "Fromisea 'prrjlm SU"), (ii) pt►yratent of R411A in avoordAm with the Contract through either (a) the date the NO Y" tmprovments m nvm_ploted and the Pmrttiam& arc open io the public in mmdanee with tite Contrac_:t or (b) the pri -misev and Golf Course, are rdujmd to the same or better Bondi #ion as the such existed as of the Prem_.isou Tgrnovor ]ate and possession of the promisog And has boon delivered to the City in aogordanee with tho Contme-4: (_iii.) all costs, oxpoami, damagQs, lossos and other almount for which the City may bemme liable as o eonserluono® of or In cOnnortion with the Company ?@car Guarantor'a contplction of Or futlum to compim t€t+s k'remisgs Clor+stfugtign 0H P0005 andlor, whgo IQ 0118o w, to 04m; the Prntrtiaes W bo aro Mimed to the City to the same Qr better oonditiort as the Premises existod as of the premises Tumovor Vat@ p_ursaaaflt to the terms and odnditions of tho Contrast, ar..d (v) the Operation of the Pre_rnises by Top Colt' or other permitted Operator under the Contrimt for the Operating Period as defined in the Contra6c3 and (lv) if the City mmises its right under No Gag-RIMty to ta_k@ over cspstruotion of the Promises trraproverncaits, to roiapburse City for all colts and empeflm tnsurrcd by City in ttalciflg over sQnstrugtlon of the Promices ltnprem- m -orits and oornpleting const- motlon ai'the Promise bliprovoments: (b) Notwithstanding any other provision 1p the Contrast or this Quaranty, mogniging that the Company, 30 West hoeing, and CenWsai Quaraattor amid Top Golf 411 have vari_ou9 oofltractual obligations that they have entered into by and Nt wean thmselves to which the City is not a party and that the City has limited rights or no rights to enforce, In the event that (l) 30 Test Pershing does enter into the Subieas®, (H) emoutm and dellvors this Guaranty to the Lessor, an(( (iii) the Company delivers to the Lessor the Due DIRSenoe Acagptance Notioe as provided for in the Cmtmct, then unless 30 West tershing within five (5) busiflom days of issuance of the Notice of Ace®ptan_oe provides written notloe to the Lessor that it has withdrawn this Guaranty, Guarantor is dmmd to have waived any rights it might hate under the Contract or this Guaranty, or in law or equity, that the Guarau3tor's obligmim under this Guaranty Have Ln any way been ai- -tared or dimifliahed, Reoelpt of the Due Dillgenge Acceptance Nodoc by .Lessor shalt be dem—od notice to Ussor that 30 Nest Porshing and Company have enured into the Sublease, (e) Guarantor covenants, and al rom to cooperate with the Company and/or ConterCal Guarantor to coordinato construction soheduling, acoese and all oilier maMr.9 rcl_atod to the performanoo by Guarantor of Its Promises COnstruotiofl Obliolons and payment of the Premises Project Coats and perforrnangs Of its Other Obligmions under this aaaaranty Gucrflntor waives tho right to olalm any dofisnse tO perrgrili € m of any of its obligations under this Guaranty based on a alalm that the Company has riled to perform under the Contmot Or Any other ogroomont nor may Guarantor olalm a failuro to perforrn by the Company under the Contract Or any other agreoanertt as a doNm to it detgult by Guarantor under this Guaranty, Guarantor waives the right to claim any Mom tO porfbilm moo of any of its Obligations under this 0mranty based on a claim that Conteroal Ceatte,roal Gun -tumor has UNd to perform under that certain Construction Guarantee Agreement hone the Cento_rcal Guarantor for the bone-fit Of the City Or any other agreement nor may Guarantor ol-atm it default by the Centercal Guarantor under its Conatruotion Quamatm Agroement In favor of the City or any other agreamont as a defanse to a det'ault by Guarantor under the Guaranty, Guarstitor covenants and agrees i32215 1 66600, 403304.5 l 173 that no Amigumont of the Company2s 1*rmst as >` omm under the Contract or army other AmIgri_mmt carsubloass ptmmitted by the Contrmt shall_ rg1_eag@ Guarantor from any of its obli0101 h01`040 00, GuR'antOr G4vep.m.ts mind_ ai roes that no emssignmcmt of its i.nftrGst as subies_so@ undor the Sublome, shall rolaase tlumntor 11mm -k any oaf its obligations l�eroutider, pREM(SPA iIVlpltOVEI+ PMTS BY GUARANTOR AND THS OTT 18 OPTION TO COMPLE'M THE PROJECT. At the City's el @otion os to the timing of making a demand (fcl_low ig the expiration of any applicabl@ n4tlo@ and ours perlod), if the, I'mm —ises improvements have not been gompletod within ton (i9) months of the prmnlaes Tiurnovor i)ate (subject to ibmvo rn�euf@ as defined irr section- 39 of the Contraot or d @lqs oaue @d by tht City), or if there are tna_tarial delays with. oohs oo #ion of the premises improvements such chat the City h4a a good ftith, rgasonabl@ belief that tho Pro-m-Noe Itmroyments will not bo oomploNd within such period @?xcopt fbr delays caused by fom tnNom as defined in Section 39 of the Contraot or o*P @pt fhr delays mmd by the City, thou the City small m?ak§ written dw- rimi_d on Guarantor to so oomplote the eama Pad to honor all of the obligations m fbAh in Swim 1 of this Gummy, If the Gua_rantm. within ten (10) days of receiving the foilowing writtan dgmv -d by City- "THIS NOTICE OF DEFAULT 18 BEING SENT PURSUANT TO SECTION 3 OF THE GUARANTY, AND Ip OVAR -ANTOR FAMS TO CURB SUCH DEFAULT WITHIN TI EN (1 Q) DAYS OF ITS RECHIPT OF THIS NOTICE, O'RL IF GUARANTOR SAS NOT COMMENCED SUCH CV1M Vsfl'ITLI +l SUCH TEN (10) DAY PERIOD AND IS DILIGEi 111 PROSECUTING TR SAME TO COMPLETION, THEN CITY MAY EXERCISE SELF -HELP RLIGHTS UNDER SECTION 3 OF THIS GUARANTY." f$il_s diligently to csnttnence and/or oontinue per€orr km thosoof to co mpletior m rqui_r-od under the Contract, the City In its sole and absolute discifstion, at any thno thereat er, shall have the right to oomplow the Promises Improy mints or rottmrn the Promises to the same or better condition as such existed Prior to the promises Turna er Dato, either b0 m, during or miler the pursuing of a1ry other r@tmdy of the City agalnst the Company snd /or the Ocavantor, and oxpend such sums as tho City in its sole And absolute discretion dune proper in order to oompiete the Promim irnprovotrments pursuant to the mquirmonts of the Contract! in such @vent, the Guarantor dell Belly and promptly mimburso and repay the City For all costs and expmam incurred by the City and such shall not mollm Guarantor firon± porfbr -m— hi ; any or ail of Its additional obligations set forth in Sootion 1 of this Guaranty, Including the paynmont of Rmt: Any amounta payable by tho Guarmmtor shall_ be payabl@ on demand, with such amounts bearing interest ftm- and after the date inoumd by the City until paid as provided in Section 3 homoi? INTEItMT ON ilF PERFORMED OBLIGATIONS. (32215166660,497504,3 ) 174 Tble OvArWor. wgO4 to pay to the City ijp.tonmt M Ow lntvrvat rate QF-5% Per annum on ft, amounts advAagqd by the Cljy'pqrsV9Qt to Sqdimi Zz Sugh irAgivat shall N. pRyable fbr the period C-0-M QUORO with each such advana@ by the City, 99PRE-88WATIONS AND WAMANTIBS, The QuivanOr mAvs, the Mlo-Wing and Wax-rowim to tho City to the best of Guarantor -'s knowledge and the Gum-unWr agkriowlodps_ that the- City intends to Wor IMQ the COROW in roWnpo thereon: (4) Th'; 04ar-4fitor IN not ill defhult under ODY ?i;mm-.Ht to whigh it is a pwity, the offib-9t Qf whigh will fnattrifilly ImpgIr PWbr-M-M-Age by tho- Guarantor of its obligations pursuant to and m gommplatod by the torm6 of this Guaranty: INOW the eg@Q141ion and delivery of this Guaranty nor oomp,114ppe with the terms and provigiong hmuf (1) will Vio-140 any PM-@fitlY 0-xisting provision of law or o-y prmomntly eristing rogulatlofl, order, writ, injunction or d@gr-@@-; of any court or Sciv§rnmwal 6pamlignt, @mmiyglon, board, bureau, Oggngy or instrPmentft-lity appligalble- to avarantor; of (I!) will gonfliat or will be in@onsinstont with, or will result In any broach of, any of the Wrtim Povenanti, gonditioni or PM-Yislon@ of, of roonatitut@ a drAhult under (with an VOW that will M---Rt§!IWIY impair wibrtnana@ by the Ovorwitor of IN obligation's Punua"t to and an oonte-raplaWd by th@ wma of this Guarwity) Orly indwituM mortaq% deed of trust, ingtrummit, doroumnt, or oont-rad of any kind that grMem, rcm-r@1910, t3vidongf6a or Provides fbr any Ron. chgrp or encumbrance upon any of the propcqy or assets of the 694rAWOr, or any other ifidmit-vurv, morqpgo, deed of trust, instrument, dogs mvpt. qrv@-mont of oontragt of any kind to which the Guarantor in 4 party or by which any of the property of the Guarantor may W subject to, in the event of any such conflict, the MqUirea e-ofiggnt or waiver of the other Party of Parties thereto has boon validly granted, ii in (bil forge and offtt and Is valid acid SUMOWnt th@00r; (b) There aro no Rations, suits or proceedings Ponding or threatened Against the O"O"Mor WO M my court or any government -al, admLnbtridive, regulatory, adjudiciftry or arbittifional body or agonoy of any kind that will (if Mv@mgly detarm inod) matcrially adversely of-W per-ftmanoo by such Guarantor of its obligations pursuant to and as @onktrnplated by the terms and provisions of this Omargnty- , i (a) 30 West Forshing In it duty organlftd, validly existing limited liability company undor the laws of the State of Missouri and is in good standing in the SW-Ws of Missouri and- CaHffornla, and has foquialto authority to execute, deliver and perform its obligations under this Guaranty Pursuant to the terms and provisions of this Guaranty and has @xeouted and doliv@rod this Guaranty pursuant to proper authority duty Mrwod3: 30 West Pershing in a wholly owned subsidiary of EPR Proport-loa, a Moryliuld real_ @Ntaft trust,, (d) TM Guarantor is deriving it material financial benefit from the entering into of the Controot by the Company, and the City has giy@.n sufficient consi ration to de I the Guarantor by ont@Ang into the Contract,- and (32215 1666001; 497304.5 ) 175 (e) Each obligation under this Guaranty is legal, valid, binding and enforceable against the Guarantor in accordance with its terms, subject at all tithes 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 Promises 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 ) 176 (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 (32215 / 66600; 497504.5 } 177 (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 (li) provide some procedural defense to Guarantor with regard to any action or proceeding the City may institute to enforce its rights under this Guaranty. 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. 8. 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 ) 178 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 Locke Lord LLP 2200 Ross Avenue, Suite 2200 Dallas, Texas 75201 Attn: Donald A. Hammett, Jr, Fax: (214) 756 -8582 (32215 / 66600; 497504,5 ) Formatted: French (Franca) �l Formatted: French (France) 179 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 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, ll` there arc .pr v_i%ions of the Contract tl7a�- erprr�sslY ap)iv to Gunranwr That are not c:onmined in this Guarrutty. Guarantor c oyunants and agg'gA c _ l : <i��r sttclt _prciyls tins - ors. - lir! ot'- thi4 *tla : °7ltty . (�_ SEVERABILITY, (32215 / 66600; 497504.5 j Formatted: No bullets or numbering ` Deleted; To the extent there are inconsistencies between the Contract and Us Guaranty, the provisfen dtat provides the greatest level of protection to dte City shall pveml ff .t 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. 171EGAL 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. 1$-. 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. 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: (32215 / 66600; 497504.5 1 10 Formatted; indent Left, 0.25 ", No bullets or numbering l Formatted: Indent; Left; 0.25 ", No bullets or numberng v 181 Tracy Weaver, City Clerk f32215 1 66600; 497504 5 ) i I CONSTRUCTION GUARANTEE AGREEMENT THIS CONSTRUCTION GUARANTEE AGREEMENT (this "Guaranty") is executed _ and delivered as of the , 2014, by CenterCal, LLC, a Delaware limited liability Deleted:3 _ __ ,..T..�� company ( "CenterCal" or "Guarantor "), whose address is I (►00 East Franklin Street, E I .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 Centercai, �ualotsd:i_� 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 } 183 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 (1) 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 166600; 497504 5 ) i, 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 I 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. 3. 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 (3221 5 / 66600; 497504.5 ) 185 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 ) MU 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 ) 187 (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 ) 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 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 } O 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 ) WE 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- Formatted: Indent: First line: o.s °, [ Guaranty are cumulative. In addition, the City shall have all rights and remedies available to it at No bullets or numbering 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 o!' the Contract � tlial_ pl)Iv to Guarantor that are not c:untaincd in this CiMIq v, Guarantor covenants and agrees to IlUnor such irovisions as Milt of thl, Cau<tr,tnl,,. to t -.._. _ _.. r _ Milt - -_– — Deleted: To the extent there are �VERABII )TY. inconsistencies between the Contract and • ° � • • ° this Guaranty, the provision that provides Wherever possible each provision of this Guaranty shall be interpreted in such manner as the greatest level orprotectiun to the City shall govern-1 to be effective and valid under applicable law, but if any provision of this Guaranty shall be s - 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 } 191 (32215 / 66600: 497504.5 } CENTERCAL, LLC, a Delaware limited liability company By: CENTER-CAI, 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: Mark D. Hensley, City Attorney Attest: Tracy Weaver, City Clerk 10 192 ,a6 CENTEI�AL PROPERIIL!�. 111: April 2s, 2015 Greg Carpenter City Manager City of El Segundo Re: Top Golf El Segundo - Update Letter Mr. Carpenter: WTOR13OLF Top Golf has experienced substantial growth over the past three years and we are excited to share the growth of our concept and brand with the City of El Segundo. We have opened over 9 locations since 2012, hired over 3,000 employees, increased our revenue over two hundred and sixty five million dollars and have secured strategic partnerships with the Golf Channel, Golf Digest and MGM Resorts International. In addition to our growth, we have increased the overall quality of our facilities, made our operations more efficient to maximize revenue and have learned many lessons throughout the process. This letter is to officially serve as an amended offer on behalf of Topgolf International and ES Centercal, LLC, coming out of the recent EDAC meeting. The EDAC meeting included a presentation from Gene Krekorian of Pro Forma Advisors, which was a comprehensive economic overview and comparison between the most recent Topgolf /Centercal Proposal versus the City maintaining the Lakes at El Segundo facility going forward. Detailed below are the proposed terms to modify the ground lease agreement approved by the City of El Segundo City Council on November 5, 2013: 1. Annual ground lease rent to the City of El Segundo will increase by $100,000 to $525,000. Also the ground rent will escalate 2% per year up until year 5, thereafter the rent will escalate at 10% every five years thereafter 99 193 2. Topgolf to provide a $400,000 cash donation towards lighting on the golf course. The desire for lighting on the course has been mentioned by multiple members of Council, and throughout the discussions during this process. This is the first time that Topgolf has invested directly into an investment that was outside of our demised premises. However, we feel the synergy with our facility will provide a substantial increase in the rounds played and provide new revenue to the City. The City of Woodale experienced an 11 -20% increase over a five year period without lights on their golf course and we anticipate a stronger impact in Southern CA with lights. 3. Topgolf will offer a three percent (3 %) participation on gross receipts of beverages sales beginning in Year 3 of the operating period. This provides an additional revenue source for the City on an ongoing basis, while allowing Topgolf time to ramp up its brand and business in El Segundo. 4. Topgolf will make the offer to hire up to two golf professionals full time during the construction period to support the junior programs currently at the Lakes at El Segundo. A lot of positive momentum has been created over the years and we fully support the junior programs and want to ensure the professionals involved continue to grow the academy. This would allow the professionals to "remain whole" during the downtime, as well as allow them to maintain and grow the program. Appropriate employment and wage documentation will be required as part of this process. This offer is in addition to Topgolf s existing commitments under the Shared Principals Agreement in regards to the existing PGA Pros who serve as independent contractors. 5. Topgolf USA El Segundo LLC, a wholly owned subsidiary of Topgolf International, would be the subtenant on the sublease to ES Centercal, and replace the existing REIT financing partner, 30 West Pershing LLC. Topgolf would look to "self- fund" this development and would not require an outside financial partner. This will alleviate the multi-party issues associated to sub ground lease agreements. 6. Topgolf will waive the sales tax credit on the business license tax that is available per city code. This will provide an additional revenue source to the City on an ongoing basis (see Proforma Advisors analysis for potential revenue impacts) 7. Topgolf to provide direct marketing support for the golf course. The fact that The Lakes has less rounds played on an annual basis than our neighboring course in Wood Dale, IL, which only has a 7 month season, demonstrates that there is meaningful upside. This would be powerful as explained below, given the number of actual people reached. This would include: a. Digital i. Promotions/ offers to our database of Topgolf customers. If El Segundo is in line with our other facilities, this means that by the end of the first 12 months of operation, we will have a database of over 100 194 100,000 unique individuals. The great news about this is that all of these individuals would have been to the location, and would have seen the golf course. ii. Promotions/ offers via our social media pages, most notably Facebook and Twitter. Similar to above, we would expect our El Segundo location to have over 15,000 facebook followers by the end of the first 12 months. b. On Site i. Lobby promotions (promote the course /full size rendering/ greens fees sign ups). This is a high traffic, high visibility area. ii. In Bay promotions (in menu and check promotional slips and having our bay hosts actively alert guests to them) c. Media i. Topgolf typically receives 15 -20 media write -ups, including local news coverage, when we open a new location. These news coverages would be positioned to show footage of the Lakes Golf Course as well, and trumpet the reasons why it's a great golf course for families, aspiring golfers, young golfers, etc. d. Charity Golf Events i. Topgolf and The Lakes Golf Course would be the ultimate Charity Golf Event! It provides the best of both worlds: the chance to get out on a golf course, but on an expedited time schedule, with full service food, beverage, and entertainment, and you don't have to be a golfer. The number of group /charity events that utilize The Lakes Golf Course would be dramatically increased. ii. This also would help target the off peak hours during the week, when there is abundant capacity on the course. We look to the City Council to provide final direction on our proposal as we are now on our third year of discussions for Top Golf partnering with the City of El Segundo. We truly appreciate the significant work that the local community stakeholders have put in, the hard work from the city staff and the time and patience from the city council in working through the trials and tribulations since early 2012. If these terms are acceptable to the City and Council and a revised ground lease agreement is brought back to council for approval, we will execute the approved ground lease within 30 days of city council approval. 101 195 Sincerely, TOPGOLF INTERNATIONAL Inc. By: Randy Starr Chief Development Officer /Chief Operating Officer CENTERCAL PROPERTIES, L.L.C. By: Rupesh Bhakta Vice President of Acquisitions & Development 102 196 ATTACHMENT 4 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 2"" 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. a. 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 313 197 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." 314 .P EL SEGUNDO CITY COUNCIL MEETING DATE: June 16, 2015 AGENDA STATEMENT AGENDA HEADING: Committees, Commissions and Boards AGENDA DESCRIPTION: Consideration and possible action to announce the appointments to the Capital Improvement Program Advisory Committee (CIPAC). (Fiscal Impact: None) RECOMMENDED COUNCIL ACTION: 1. Announce the appointees to the Capital Improvement Program Advisory Committee (CIPAC), if any; 2. Alternatively, discuss and take other action related to this item. ATTACHED SUPPORTING DOCUMENTS: None FISCAL IMPACT: Included in Adopted Budget Amount Budgeted: $ None Additional Appropriation: N/A Account Number(s): ORIGINATED BY: Mishia Jennings, Executive Assistant REVIEWED BY: APPROVED BY: Greg Carpenter, City Manager BACKGROUND AND DISCUSSION: Committee/Commission and Board # of Openings Appointee(s) Capital Improvement Program Advisory Comm 4 Term Expires) November 30, 2016 Partial Tern November 30, 2017 Partial Tern November 30, 2018 Partial Tern November 30, 2019 Full Term WE w 200 k w k W ; ci oo ) - ! 2 k §� �� W / /[ \k\((��§ F /[ /u z ! §z(G \g)\5 _zb� § §!22§ m 000nr -� § §2§ /kk° w §§a§ §m: c §}u! !R)$) /2){ :a0)¥[::b(27F - °> §�eo�w < <F wz ƒ ) § /\°�k!(( ,zoz �ea@ ,@L» = \ -[2Q� & wow wokkN( ow,��)�� «o «2 }mr]aE�%!,) Ro0,. „ §§ /§§olEy ={P§2o b�e��o% oGlo ;��m :23z!!$o� =!!! :8 $ ! ( cl j\ )F- a) br Cl) (} P .. qG ....... .. ,,, w�v,eA . °\ Cl) ,a m 0) -Ir /- «ww ci oo \ ca t5 6 / { a /)/ (\(\ LL =i0 §( of LU \\ B ! g }) LU Q CA Lu 3 B >1 k \ { \2 !t }/ /} 0 02 \ J } } / � k� LU / ©2{ L E( \-6 /\ \\\ \ \� \\ /. |)EE kf!&f |)}2k )�fW #§ \f; } / \/� ,®E {> E /)§{ 0m # m M f ) Q § 0 a: 201 � � - ! 2 k §� �� W / /[ \k\((��§ F /[ /u z ! §z(G \g)\5 _zb� § §!22§ m 000nr -� § §2§ /kk° w §§a§ §m: c §}u! !R)$) /2){ :a0)¥[::b(27F - °> §�eo�w < <F wz 2 §ZF M ZiE §[2olee\ ) § /\°�k!(( ,zoz �ea@ ,@L» = \ -[2Q� & wow wokkN( ow,��)�� «o «2 }mr]aE�%!,) Ro0,. „ §§ /§§olEy ={P§2o b�e��o% oGlo ;��m :23z!!$o� =!!! :8 \ ca t5 6 / { a /)/ (\(\ LL =i0 §( of LU \\ B ! g }) LU Q CA Lu 3 B >1 k \ { \2 !t }/ /} 0 02 \ J } } / � k� LU / ©2{ L E( \-6 /\ \\\ \ \� \\ /. |)EE kf!&f |)}2k )�fW #§ \f; } / \/� ,®E {> E /)§{ 0m # m M f ) Q § 0 a: 201 � � CITY OF EL SEGUNDO PAYMENTS BY WIRE TRANSFER 5/18/15 THROUGH 5/31/15 Date Payee Amount Description 5/22/2015 Manufacturers & Traders 42,497.14 457 payment Vantagepoint 5/22/2015 Manufacturers & Traders 477.31 IRA payment Vantagepoint 5/22/2015 Manufacturers & Traders 5,302.24 401 payment Vantagepoint 5/22/2015 US Bank - Trust Acct 5,680.28 PARS payment 5/22/2015 South Bay Credit Union 11,980.38 Payroll credit union deduction pmt 5/22/2015 State of CA EFT 1,229.14 EFT Child support payment 5/22/2015 Health Comp 3,893.46 Weekly claims 5/22/2015 CalPers 8,926.86 Replacement Benefit Contribution 5/22/2015 CalPers 116.33 Replacement Benefit Contribution 5/26/2015 Unum 208.70 Long Term Care Premium 5/26/2015 Nationwide NRS EFT 45,401.00 EFT 457 payment 5/26/2015 Nationwide NRS EFT 1,822.77 EFT 401a payment 5/26/2015 IRS 231,465.21 Federal 941 Deposit 5/26/2015 Employment Development 3,294.86 State SDI payment 5/26/2015 Employment Development 47,683.36 State PIT Withholding 5127/2015 Cal Pers 93,338.71 EFT Retirement Misc 5/27/2015 Cal Pers 264,813.97 EFT Retirement Safety 5/27/2015 Cal Pers 1,488.80 EFT Retirement Safety - Police 5/27/2015 Cal Pers 10,225.67 EFT Retirement Misc 5/28/2015 Lane Donovan Golf Ptr 20,535.70 Payroll Transfer 5/29/2015 Health Comp 1,183.47 Weekly claims 5/16/15- 5/22/15 Workers Comp Activity 126,943.14 SCRMA checks issued 5/23/15 - 5/29/15 Workers Comp Activity 28,064.87 SCRMA checks issued 956,573.37 DATE OF RATIFICATION: 6/1/15 TOTAL PAYMENTS BY WIRE: 956,573.37 Certified as to the accuracy of the wire transfers by: Deputy City Trea urer II Date Director of F' ce Date City Manager/f Date Information on actual expenditures is available in the City Treasurer's Office of the City of El Segundo. PACity Treasurer \Wire Transfers \Wire Transfers 10 -01 -14 to 9 -30 -15 6/1?P15 1/1 REGULAR MEETING OF THE EL SEGUNDO CITY COUNCIL TUESDAY, JUNE 2, 2015 — 5:00 PM 5:00 P.M. SESSION CALL TO ORDER — Mayor Fuentes at 5:00 PM ROLL CALL Mayor Fuentes - Present Mayor Pro Tern Jacobson - Present Council Member Atkinson - Present Council Member Fellhauer - Present Council Member Dugan - Present PUBLIC COMMUNICATION — (Related to City Business Only — 5 minute limit per person, 30 minute limit total) SPECIAL ORDER OF BUSINESS: Mayor Fuentes announced that Council would be meeting in closed session pursuant to the items listed on the Agenda. CLOSED SESSION: The City Council may move 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): -2- matter 1. City of El Segundo vs. City of Los Angeles, et.al. LASC Case No. BS094279 2. Penuelas vs. City of El Segundo, LASC Case No. BC523072 CONFERENCE WITH LEGAL COUNSEL — ANTICIPATED LITIGATION Significant exposure to litigation pursuant to Government Code §54956.9(d) (2) and (3): -2- matter. 203 Initiation of litigation pursuant to Government Code §54956.9(c): -2- matter. DISCUSSION OF PERSONNEL MATTERS (Gov't Code §54957): -0- matter APPOINTMENT OF PUBLIC EMPLOYEE (Gov't. Code § 54957): -0- matter PUBLIC EMPLOYEMENT (Gov't Code § 54957) -0- matter CONFERENCE WITH CITY'S LABOR NEGOTIATOR (Gov't Code §54957.6):-8- matters 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) Agency Designated Representative: Steve Filarsky and City Manager CONFERENCE WITH REAL PROPERTY NEGOTIATOR (Gov't Code §54956.8): -0- matters Adjourned at 6:55 PM 2 204 REGULAR MEETING OF THE EL SEGUNDO CITY COUNCIL TUESDAY, JUNE 2, 2015 - 7:00 P.M. 7:00 P.M. SESSION CALL TO ORDER — Mayor Fuentes at 7:00 PM INVOCATION — Tracy Weaver, City Clerk PLEDGE OF ALLEGIANCE — Council Member Fellhauer PRESENTATIONS a) Proclamation read by Mayor Fuentes and presented to Cheryl Smith, Ice Cream Social Chair and Martha Monahan, Center Street School Principal, proclaiming Friday, June 5, 2015 as Center Street School PTA's Ice Cream Social Day. b) Proclamation read by Council Member Fellhauer and presented to Patricia Morales and Bazilla Gutierrez proclaiming June as Relay for Life Month. c) Proclamation read by Council Member Dugan and presented to Steve Odabashian, NRG, proclaiming Saturday, June 6, 2015 as Beauty & the Beach Day. ROLL CALL Mayor Fuentes - Present Mayor Pro Tern Jacobson - Present Council Member Atkinson - Present Council Member Fellhauer - Present Council Member Dugan - Present PUBLIC COMMUNICATIONS — (Related to City Business Only — 5 minute limit per person, 30 minute limit total). Dina Ferguson, representing St. Michael's Episcopal Church, requesting information on St. Michael's right of ways, before the June 10th Community Outreach Meeting concerning Richmond Street's reconfiguration. Dr. Melissa Moore, Superintendent of ESUSD, appreciates the agreement between the City and the ESUSD pertaining to the school libraries. Ms. Moore also thanked the Council for their continued support of the School District. Nate Chittik, resident, spoke concerning El Segundo's employees and salaries, mainly the Fire and Police salaries. CITY COUNCIL COMMENTS — (Related to Public Communications) Council answered questions related to Public Communications. 3 205 A. PROCEDURAL MOTIONS Consideration of a motion to read all ordinances and resolutions on the Agenda by title only. MOTION by Mayor Pro Tern Jacobson, SECONDED by Council Member Fellhauer 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) 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. Warrant Numbers 3006032 through 3006306 on Register No. 16 in the total amount of $1,947,389.78 and Wire Transfers from 5/4/2015 through 5/17/2015 in the total amount of $3,072,353.68. 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. 2. Approve the Regular City Council Meeting Minutes of May 19, 2015. 3. Pursuant to El Segundo Municipal Code §1 -7 -10, waive the bidding process and authorize City Manager to execute an agreement no. 4857, in a form approved by the City Attorney, with G/M Business Interiors, based on U.S. Communities Government Purchasing Alliance Contract #4400003403, to purchase office furniture for the Police Department Records Section and Traffic Unit work spaces from utilizing Developer Fees. (Fiscal Impact: $110,586.00) 4. Authorize the City Manager, or designee, to record the Notice of Completion accepting completion of work for nineteen (19) homes related to Project RSI 14- 20 (the City's Residential Sound Insulation Program's Group 63) and authorize the RSI Program Manager to sign the Title 24 Compliance Certificates in accordance with the requirements of the grant funding from Los Angeles World Airports (LAWA) and mail originals to LAWA. (Fiscal Impact: Final Contract Amount: $532,300.11) E 206 5. Authorize the City Manager, or designee, to record the Notice of Completion accepting completion of work for eighteen (18) homes related to Project RSI 14- 21 (the City's Residential Sound Insulation Program's Group 64) and authorize the RSI Program Manager to sign the Title 24 Compliance Certificates in accordance with the requirements of the grant funding from Los Angeles World Airports (LAWA) and mail originals to LAWA. (Fiscal Impact: Final Contract Amount: $680,661.94) 6. Authorize the City Manager to execute a first amendment No. 4723A to an existing Professional Services Agreement No. 4723, to increase funding by $20,000 for a total of $45,000 approved as to form by the City Attorney. (Fiscal Impact: $20,000.00) 7. PULLED FOR PRESENTATION 8. Receive and file this report regarding emergency work to repair dwelling units at the Park Vista Senior Housing Facility due to water intrusion without the need for bidding in accordance with Public Contracts Code §§ 20168 and 22050 and El Segundo Municipal Code ( "ESMC ") §§ 1 -7 -12 and 1 -7A-4. (Fiscal Impact: $50,000.00) 9. Approve a Second Amendment to the MOU between the City and the District for Library Services, to change the funding for part-time, no benefit personnel in the school libraries from the City's general fund to a reimbursement payment by the District for an estimated cost of $130,000, adjusted annually for standard step or cost of living increases; and an additional reimbursement of $12,220 for possible changes in staffing levels if approved by the School District Board, starting July 1, 2015 to June 30, 2016; and, to extend the term of the agreement for another ten (10) years from July 1, 2015 to June 30, 2025, approved as to form by the City Attorney. (Fiscal Impact: None - School District to reimburse the City an estimated $130,000.00 annually for part-time, no benefited salaries) MOTION by Council Member Fellhauer, SECONDED by Council Member Dugan to approve Consent Agenda items 1, 2, 3, 4, 5, 6, 8, and 9. MOTION PASSED BY UNANIMOUS VOICE VOTE. 5/0 PULLED ITEM: 7. Consideration and possible action regarding approval of a permanent half -time Administrative Specialist in the Water Division of Public Works. (Fiscal Impact: $20,000.00) Stephanie Katsouleas, Public Works Director, gave a presentation Council Discussion 5 207 MOTION by Council Member Fellhauer, SECONDED by Council Member Atkinson to approve a permanent half -time Administrative Specialist in the Water Division of Public Works. MOTION PASSED BY VOICE VOTE. 3/2 YES: Atkinson, Fellhauer, Jacobson NO: Dugan, Fuentes F. NEW BUSINESS 10. Introduce and waive first reading of Ordinance No. 1507 amending Title 8, Chapter 5 of the El Segundo Municipal Code regarding the renewal period for preferential parking permits and schedule a second reading and adoption the ordinance. (Fiscal Impact: None) Mitch Tavera, Chief of Police, answered Council questions. Council Discussion Mark Hensley, City Attorney, read by title only: ORDINANCE NO. 1507 AN ORDINANCE AMENDING TITLE 8, CHAPTER 5, ARTICLE A REGARDING THE CITY OF EL SEGUNDO'S PREFERENTIAL PARKING PROGRAM Mayor Pro Tern Jacobson introduced the Ordinance. The Second reading is scheduled for June 16, 2015. 11. Adopt Resolution No. 4918, No. 4919 and No. 4920 amending Chapter 1A2 of the Administrative Code providing salary increases and benefit changes to employees of the Executive and Management - Confidential series and Resolutions for Employer Paid Member Contributions (EPMC) for Management - Confidential to increase the employee PERS Member share contribution. (Fiscal Impact: FY 2014 -15: $260,400.00) Greg Carpenter, City Manager, gave a presentation Council Discussion MOTION by Council Member Dugan, SECONDED by Mayor Pro Tern Jacobson to amend Chapter 1A2 of the Administrative Code providing salary increases and benefit changes to employees of the Executive and Management - Confidential series and Resolutions for Employer Paid Member Contributions (EPMC) for Management - Confidential to increase the employee PERS Member share contribution. MOTION PASSED BY UNANIMOUS VOICE VOTE. 5/0 M: G. REPORTS — CITY MANAGER — Introduced the new Interim Finance Director, Misty Cheng. H. REPORTS — CITY ATTORNEY — Elaborated on a question raised earlier during Public Comments. Mr. Hensley stated that in his 19 years as our City Attorney, the City has had no more than 2 or 3 cases that have paid out settlements due to use of force by our Police and Fire Departments. REPORTS — CITY CLERK - None REPORTS — CITY TREASURER — Not Present K. REPORTS — CITY COUNCIL MEMBERS Council Member Fellhauer — Attended a Special Olympics Fundraiser at Moto Art and met with an expert on Drones and mentioned she will be asking the City Manager to work with the expert on possible recommendations for Public Policy. Council Member Atkinson — Attended The Lakes Event that raised funds for the Special Olympics. Council Member Dugan — Attended The Lakes Event raising funds for the Special Olympics. Mayor Pro Tern Jacobson — None Mayor Fuentes — Attended the California Science Center's Foundation event, honoring Dr. Wanda Austin as Woman of the Year. PUBLIC COMMUNICATIONS — (Related to City Business Only — 5 minute limit per person, 30 minute limit total). None MEMORIALS — None ADJOURNMENT at 8:20 PM Tracy Weaver, City Clerk 7 1! 210 EL SEGUNDO CITY COUNCIL MEETING DATE: June 16, 2015 AGENDA ITEM STATEMENT AGENDA HEADING: Consent Agenda AGENDA DESCRIPTION: Consideration and possible action regarding a two -year renewal of the cost sharing agreement in a form approved by the City Attorney with the City of Redondo Beach for operation of Beach Cities Transit (BCT) Line 109 for FY15 /16 and FY16 /17, in conjunction with the cities of Hermosa Beach, Redondo Beach, and Manhattan Beach. (Fiscal Impact: $36,363 for FY15 /16 and not to exceed $45,454 for FYI 6/17 Proposition C funds) RECOMMENDED COUNCIL ACTION: 1. Approve the two -year renewal of the cost sharing agreement with BCT for operation of Transit Line 109. 2. Authorize the Mayor to execute Transit Service Operation Agreement in a form approved by the City Attorney. 3. Alternatively, discuss and take other action related to this item. ATTACHED SUPPORTING DOCUMENTS: 1. Cost Sharing Proposal from Beach Cities Transit for FYI 5/16 2. Beach Cities Transit Route Map and Time Schedule FISCAL IMPACT: $36,363 for FY15 /16 and not to exceed $45,454 for FY16 /17 Proposition C funds Amount Budgeted: $0 Additional Appropriation: $36,363 for FY 15/16; Not -To- Exceed $45,454 for FY 16/17 Account Number(s): 114 - 400 -5293 -6206 (Beach Cities Transit Contractual Services) ORIGINATED BY: Meredith Petit, Director of Recreation and Parks G) REVIEWED BY: Meredith Petit, Director of Rec ion and Parks APPROVED BY: Greg Carpenter, City Manager BACKGROUND & DISCUSSION: Since August 2006, Beach Cities Transit has operated BCT Line 109 from Redondo Beach to the LAX Transit Center, passing through the cities of Hermosa Beach, Manhattan Beach, and El Segundo. In July 2006, these South Bay communities came together to collectively fund a portion of the operating costs for a new BCT Line (designated Line 109), to assume bus service responsibilities in lieu of the discontinued Metropolitan Transportation Authority's (Metro) Line 439. BCT, a community -based transit system operated by the City of Redondo Beach, is designated as an `included operator' in Los Angeles County. As such, BCT is eligible to receive funding from Metro to partially fund local transit operating expenses. Despite the fact funding is available through Metro, recent statewide funding reductions to transit agencies have impacted BCT's allocation, leaving the participating agencies the responsibility to cover the unfunded expenses of operating the service. Additionally, in the recent past, Metro has jettisoned `regionally underperforming' bus lines, leaving them to be either picked up by local operators or discontinued entirely. Over the past eight years, these four 7 211 South Bay communities have supported the operation and evolution of BCT Line 109 to serve the transit needs of local residents and commuters, as Metro has discontinued routes 439, 124, and 125. Line 109 encompasses over 70 stops each northbound and southbound, with nearly 40% of the route within El Segundo city limits. Major destinations on Line 109 include the LAX City Bus Center, the Aviation Green Line Station, the Douglas Green Line Station, downtown Manhattan Beach, Manhattan Village Mall, downtown El Segundo, Plaza El Segundo, the Hermosa Beach Pier, the Redondo Beach Pier, and Riviera Village. In June 2013 the City Council approved a two -year agreement (July 1, 2013 through June 30, 2015) to continue supporting a proportional share of the operational costs of the BCT Line 109. At the end of June 2015, the total FY14 /15 financial commitment is estimated to total about $26,011 and is funded through Proposition C Funds. The City of Redondo Beach is requesting the City of El Segundo approve a two -year agreement in a form approved by the City Attorney to participate in Line 109 to continue to improve the service and serve the communities' residents, businesses, and employers. Both the cities of Manhattan Beach and Hermosa Beach are expected to renew their participation. The proportional share for FYI 5/16 is estimated at $36,363, while the estimates set forth in the agreement for FYI 6/17 include an additional 25% contingency for planning purposes and will not exceed $45,454. The City of Redondo Beach will provide an estimated cost sharing allocation amount for FY16 /17 towards the end of FY15 /16. 212 Community Services Department 1922 Artesia Boulevard Redondo Beach, California 90278 www.redondo.org April 10, 2015 Meredith Petit, Director of Recreation and Parks City of El Segundo 350 Main Street El Segundo, CA 90245 Re: Service Proposal for BCT Line109 — FY 2015 -2016 Dear Ms. Petit, tel: 310 318 -0610 fax: 310 798 -8273 redondo 8 E A C H The two -year Transit Service Operation Agreement for the BCT Line 109 service, between the City of Redondo Beach and the City of El Segundo will expire on June 30, 2015. The BCT Line 109 is projected to have funding shortfalls for the operating expenses (service hour costs and fuel expenses) during Fiscal Year 2015 -2016. Attached for your consideration is the cost sharing proposal for the upcoming year. Let me know if El Segundo is interested in a two -year agreement through Fiscal Year 2016 -17. Three new buses were placed in BCT service in January 2015, and new BCT flag signs and At Stop Panel signs were recently installed to improve rider information. Our goals for the upcoming fiscal year include continuing to improve rider information using technology. We will keep you informed during the year as projects are developed. Effective this month, BCT buses now accept Metro TAP cards for fare payment using Metro EZ Pass, Stored Value and Access TAP cards. The City of Redondo Beach has also started selling Stored Value for Metro TAP cards at the Redondo Beach City Hall and Artesia Blvd. offices. In addition, the BCT Transit Operations & Maintenance Request For Proposals (RFP) was issued in August 2014, and the existing transit operations contractor, Transportation Concepts was renewed for the new contract period effective January 2015. Please contact me to discuss renewing the service agreement at 310 - 318 -0610 x2670. Sincerely, Joyce Rooney w/ Transit Operations & Transportation Facilities Manager CC: Vina Ramos Enclosure: FY2015 -16 Cost Sharing Proposal 213 rCities Transit 9 BCT Line 109 Cost Sharing Proposal: July 2015 -June 2016 April 10, 2015 Service BCT Line 109 passenger trips increased in FY 2013 -14 by 3.5 %, adding 7,263 Overview passenger trips over the prior year. Three new buses were placed in service in January 2015. Also, new BCT flag signs were installed, and At Stop Panel signs were installed at key bus stop locations along the Line 109 route. The At -Stop Panel signs illustrate destination information, the time schedule for the specific bus stop, as well as the travel time from the specific stop to destinations along the Line 109 route. The BCT Transit Operations & Maintenance Request For Proposals (RFP) was issued in August 2014, and the existing transit operations contractor, Transportation Concepts was renewed for the new contract period effective January 2015. Service Statistics History of BCT Line 109 Transit Metro's annual transit formula funding allocations to municipal transit operators Funding is based on sales tax revenue receipts. Regional funding estimates continue to improve and funding allocations for FY 2015 -16 are projected to increase. The expenses included in the cost sharing estimates for BCT Line 109 are the Cost operating expenses incurred by the transit contractor and fuel expenses, which Estimates are expected to be $1,215,000 for the operation of 20,306 annual service hours. Fiscal Year Cost increases are the result of increased fuel expenses and the new contract 2016 rates established during the RFP process. 1 April 10, 2015 214 FY 07 -08 FY 08 -09 FY 09 -10 FY 10 -11 FY 11 -12 FY 12 -13 FY 13 -14 Actual Actual Actual Actual Actual Actual Actual Service 16,628 16,663 19,317 18,953 18,809 20,134 20,234 Hours Operating $888,727 $846,106 $1,027,029 $930,967 $998,035 $1,088,582 $1,174,214 Cost Fare $137,506 $145,000 $158,190 $135,465 $144,820 $162,909 $154,702 Revenues Passenger 174,991 193,350 194,345 179,748 199,295 205,321 212,584 Trips Transit Metro's annual transit formula funding allocations to municipal transit operators Funding is based on sales tax revenue receipts. Regional funding estimates continue to improve and funding allocations for FY 2015 -16 are projected to increase. The expenses included in the cost sharing estimates for BCT Line 109 are the Cost operating expenses incurred by the transit contractor and fuel expenses, which Estimates are expected to be $1,215,000 for the operation of 20,306 annual service hours. Fiscal Year Cost increases are the result of increased fuel expenses and the new contract 2016 rates established during the RFP process. 1 April 10, 2015 214 RB.achities Transit Cost Sharing Allocation History % INVESTMENT FY 2011 -12 FY 2012 -13 FY 2013 -14 FY 2014 -15 CITY (avg route miles/ total route milezl Redondo Beach 34.95% $33,716 $39,843 $70,098* * *$117,449 Hermosa Beach 10.89% $10,506 $12,415 $6,757 $7,432 Manhattan Beach 16.05% $15,484 $18,297 $9,959 $10,954 El Segundo 38.11% $36,765 $43,445 $23,646 $26,011 TOTAL SHORTFALL 100% $96,469 1 $114,000 J $110,460 I $161,846 *Redondo Beach estimated contribution estimate was $21,686; actual contribution was $70,098 due to unanticipated fuel cost increases. * *Per the terms of the two year agreement, the FY 2014 -15 Cities' contributions was increased by 10% from FY 2013 -14; Redondo Beach contributed to the remaining shortfall costs. Based on the preliminary fund marks issued by Metro in March 2015, the Investment estimated FY 2015 -16 shortfall for the BCT Line 109 is estimated at Estimates $95,417, which is less than the FY 2014 -15 projection of $161,846. The Cities' previous cost sharing agreement was for a two year period (FY 2014 and FY2015), that set a City contribution cap increase of 10% for FY 2014 -15. BCT Estimated Cost Sharing Allocations for FY 2015 -16 CITY % OF ROUTE MILES FY 2015 -16 INVESTMENT $33,349 Redondo Beach 34.95% Hermosa Beach 10.89% $10,391 Manhattan Beach 16.05% $15,314 El Segundo 38.11% $36,363 Total 100% 100% $95,417 Proposal Assurn tions: * 20,306 annual service hours * Transit Fare Revenue estimate of $150,000 is based on FY 2014 revenues of $154,702. * No change in route mile distribution to Cities April 10, 2015 215 2 216 Otis College of Art & Design ■ lncoln Blvd LAK Arbor Vitae St v ster Pkwy ' City Bus ' Westche Center m 96TH ST University o of Wesr LA � CENTURY BLVD x' O World Way W m 0 > w m ° a' Los Angeles (LFIX) G o. 0 m o Lennox Blvd ° !rite; national Airport a Q a Hawthorne/ `o rn Lennox S Station Q >' IMPERIAL AVE Urn IMPERIAL HWY Imperial Hwy N Z El Segundo N Aviation/ \ Library �Ij High School Station \ {S,'Q�[ Mariposa Ave z 120th St ice' it Marl Swim SMtllum,` Mariposa, cr + ±atipn Park w rh Holly Ave Station GRAND AVE f �10 El Segundo Blvd El Segundo Blvd n m El Segundo Station EL 5 D® HAWTHORNE m w �ty(yHES �pY D° v 135th St �3 a Plaza El Sequndo q' p o u PARK PLK I Douglas Station 3 0 A! Y RCISECRANS AVE ' S = Rosecrans Ave North hwhatrtinitexlr [ c S. d Q rrfl yry[.lrl� UCLA Medical �ASal7 Merins� $yy p °m Medical $pph�is Redondo Group O Marine Ave P711! Bpaeh Marine Ave Station MANHATTAN !y° Comm �4p Live Oak Park & Space Park Dr oa Community Ctr Z= City Hall & Library Ou¢b...,. BEACH 0 Im ry p' 0 s m Manhattan Boarh BW Vq,.OSt A. Manhattan Beadf Blvd Aviation Park d Metro -Plate LAWNDALE < El Camino 1 o o College i 2nd St a Park o i chg \Jd 3 O dOOdo •y aX Mira Costa J Be a p High School O1 °or Gouldg, North ¢ a � Library �' ARTESIA BLVD } ar South Bey Grant o =i Ave W "i 1 r ' M.— Gallen, South 8ay HERMOSA A °� P at �,MnrkDST 9 e W I� 182ND ST �+ P \e Ve Je E A i. �••� Stity Hall & Library �Q\ Nido •,:_Mark Stadium x P.�ry, p South r' c Dominguez 190TH 5T'':. 190th St Ypr5c. NZ P�,ta 5 ,j\g0thyt9W P�omenadc 8each Cities Health District r� z Beach Cities Transit Lines 7 -,,,, �_,; I ,i! 9 Healthcare Partners A � ap O Del Amo Blvd -�i =--o Ell & ty. Hall CF M Del Amo Blvd 0 Timepoint " " Gtxaty CIS " v fi'•n, � Connections to Other Transit Service: REDONDO m v d u 5 •. „s Metro Local &Rapid Bus O .� A Union G c`o m BBB (Santa Monica Big Blue Bus) BEACH '�, ” CCB (Culver CityBus) High v School Little Company = CE (LADOT Commuter Express) E BLVD of Mary Hospital G (Gardena Municipal Bus Lines) ;� „� };;,; _!,, g Fb:• TORRANC 0 Torrance Blvd LAX (Free Shuttles to Terminals) LW (Lawndale Beat) Veterans earl PV (Palos Verdes Peninsula h Transit Authority) (': Ca, B(Fh4 Montgomery k High 9rhool T (Torrance Transit) 'o C Carson St TR (Torrance Rapid) C s ar;045y ion d Metro Green Line &Station m A o� kins tvr W✓ drie'""S1 Palk Bus Stops (not shown on main map) °.rr1,. S'bAUh'Ma Blvd • Beach Cities Transit and Others 0 Other Buses �d�R¢ES BLVD p a TC�RR.I'INCE + - wpuet <o �t�r AVE I t 4 °j7a ffi CkrldGaVarMitint $ 19/6 Mudlral pllrtortlaspirnl Riviera Village�{'Jrc Coast H 235t 'Sii/' V t'a \ \e hst Park q(FNO�q O p nw 1 1,t -..i I j stt�wavcartag. 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P B 4� b 01,7 it y .I I°* . , O QCZ' 0 °1 Vt mo°. A • 8:00 y 8:11 b6 �o B 8:37 8:40 8:43 8:51 9:01 9:08 ° 9:20 0 `4 L-e g4 9:57 4 10:03 10:11 10:21 °� 10:37 0:30 10:33 I 10:51 - 6:05 6:08 6:16 6:26 6:33 6:42 6:30 6:33 6741 6:51 6:58 7:07 7:00 7:03 7.11 7:21 7:28 7:37 7:30 7:33 7:41 7:51 7:58 8:07 8:00 8:03 8:11 8:21 8:28 8:37 8:30 8:33 8-.41 8:51 8:58 9:07 9:00 9:03 911 9:21 9:28 9:37 9:30 9:33 9.41 9:51 9:58 10:07 0:00 10:03 10:11 10:21 10:28 10:37 0:30 10:33 10:41 10:51 10:58 11:07 1:00 11:03 11:11 11:21 11;28 11:37 1:30 11:33 11:41 11:51 11:58 12:07 2:00 12:03 12:11 12:21 12:28 12:37 2:45 12:48 12:56 1:06 1:13 1:22 1:15 1:18 1:26 1:36 1:43 1:52 1:45 1:48 1:56 2:06 2:13 2:22 2:15 2:18 2:26 2:36 2:43 2 :52 2:52 2:55 3:03 3:13 3:20 3:29 8:31 *3:00 3:16 3:28 3:35 3:44 5:01 *3:05 3:23 EXPRESS TO RED BCH sTA 3:35 - *3:10 3:29 3:39 3:46 3:55 3:15 3:20 3:31 3:41 3:48 3:57 3:45 3:48 3:56 4:06 4:13 4:22 4:15 4:18 4:26 4:36 4:43 4:52 4:45 4:48 4:56 5:06 5:13 5:22 5:15 5:18 5:26 5:36 5:43 5:52 5:45 5:48 5:56 6:06 6:13 6:22 6:15 6:18 6:26 6:36 6:43 6:52 6:45 6:48 6:56 7:06 7:13 7:22 7:15 7:18 7:26 7:36 7:43 7:52 Trip operates only on school days 3:51 4:06 AM PM 4:19 4:28 4:31 4:46 c a ? 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A • 8:00 8:03 8:11 8:21 8:28 8:37 8:40 8:43 8:51 9:01 9:08 9:17 9:20 9:23 9:31 9:41 9:48 9:57 0:00 10:03 10:11 10:21 10:28 10:37 0:30 10:33 10:41 10:51 10:58 11:07 1:00 11:03 11:11 11:21 11:28 11:37 1:30 11:33 11:41 11:51 11:58 12:07 2:00 12:03 12:11 12:21 12:28 12:37 2:30 12:33 12:41 12:51 12:58 1:07 1:00 1:03 1:11 1:21 1:28 1:37 1:30 1:33 1:41 1:51 1:58 2:07 2:00 2:03 2:11 2:21 2:28 2:37 2:30 2:33 2:41 2:51 2:58 3:07 3:00 3:03 3:11 3:21 3:28 3:37 3:30 3:33 3:41 3:51 3:58 4:07 4:00 4:03 4:11 4:21 4:28 4:37 4:30 4:33 4:41 4:51 4:58 5:07 5:00 5:03 5:11 5:21 5:28 5:37 5:30 5:33 5:41 5:51 5:58 6:07 6:00 6:03 6:11 6:21 6:28 6:37 6:30 6:33 6:41 6:51 6:58 7:07 7:00 7:03 7:11 7:21 7:26 7:37 7:54 7:57 8:05 8:15 8:22 8:31 AM PM 4:35 4:50 4:58 5:01 S Goat' Fc C� r9'�s �5� D °t;9y A Zti t� AXIS A ■��lfr7t�� T<•7 9:10 9:13 9:21 9:31 9:38 9:47 9:50 9:53 10:01 10:11 10:18 10:27 0:30 10:33 10:41 10:51 10:58 11:07 1:10 11:13 11:21 11:31 11:38 11:47 1:50 11:53 12:01 12:11 12:16 12:27 3:00 3:03 3:11 3:21 3:28 3:37 3:40 3:43 3:51 4:01 4:08 4:17 4:20 4:23 4:31 4:41 4:48 4:57 5:00 5:03 5:11 5:21 5:28 5:37 5:40 5:43 5:51 6:01 6:08 6:17 AM PM 9:54 10:09 10:17 10:20 V b a° • I 6:19 6:28 6:31 6:46 6:54 6:57 6:44 6:53 6:56 7:11 7:19 7:22 *7:00 7:09 7:12 7:27 7:35 7:38 '7:05 7:14 7:17 7:32 7:40 7:43 7:12 7:21 7:24 7:39 7:47 7:50 *7:15 7:24 7:27 7:42 7:50 7:53 7:42 7:51 7:54 8:09 8:17 8:20 8:12 8:21 8:24 8:39 8:47 8:50 8:39 8:48 8:51 9:06 9:14 9:17 9:12 9:21 9:24 9:39 9:47 9:50 9:42 9:51 9:54 10:09 10:17 10:20 10:09 10:18 10:21 10:36 10:44 10:47 10:39 10:48 10:51 11:06 11:14 11:17 11:09 11:18 11:21 11:36 11:44 11:47 11:39 11:48 11:51 12:06 12:14 12:17 12:09 12:18 12:21 12:36 12:44 12:47 12:39 12 :48 12:51 1:06 1:14 1:17 1:24 1:33 1:36 1:51 1:59 2:02 1:54 2:03 2:06 2:21 2:29 2:32 2:24 2:33 2:36 2:51 2:59 3:02 2:54 3:03 3:06 3:21 3:29 3:32 3:31 3:40 3:43 3:58 4:06 4:09 3:58 4:07 4:10 4:25 4:33 4:36 4:23 4:32 4:35 4:50 4:58 5:01 4:53 5:02 5:05 5:20 5:28 5:31 5:23 5:32 5:35 5:50 5:58 6:01 5:53 6:02 6:05 6:20 6:28 6:31 6:23 6:32 6:35 6:50 6:58 7:01 6:53 7:02 7:05 7:20 7:28 7:31 7:23 7:32 7:35 7:50 7:58 8:01 7:55 6:04 6:07 8:22 8:30 8:33 Trip operates only on school days 11:18 11:21 AM PM 11:47 11:49 11:58 12:01 yq 'pt.' y ° 4I Q" L 4 Y m' y R °�° F ° 4 ^� QQSI� E�CT Ark An- • I 8:40 8:49 8:52 9:07 9:15 9:18 9:20 9:29 9:32 9:47 9:55 9:58 10:00 10:09 10:12 10:27 10:35 10:38 10:40 10:49 10:52 11:07 11:15 11:18 11:10 11:19 11:22 11:37 11:45 11:48 11:40 11:49 11:52 12:07 12:15 12:18 12:10 12:19 12:22 12:37 12:45 12:48 12:40 12:49 12:52 1:07 1:15 1:18 1:10 1:19 1:22 1:37 1:45 1:48 1:40 1:49 1:52 2:07 2:15 2:18 2:10 2:19 2:22 2:37 2:45 2:48 2:40 2:49 2:52 3:07 3:15 3:16 3:10 3:19 3:22 3:37 3:45 3:48 3:40 3:49 3:52 4:07 4:15 4:18 4:10 4:19 4:22 4:37 4:45 4:48 4:40 4:49 4:52 5:07 5:15 5:18 5:10 5:19 5:22 5:37 5:45 5:48 5:40 5:49 5:52 6:07 6:15 6:18 6:10 6:19 6:22 6:37 6:45 6:48 6:40 6:49 6:52 7:07 7:15 7:18 7:10 7:19 7:22 7:37 7:45 7:48 7:40 7:49 7:52 6:07 8:15 8:18 8:34 8:43 8:46 9:01 9:09 9:12 AM PM 6:38 6:52 7:07 _ 7:27 6:55 7:12 7:23 7:37 7:52 b I y� 7:45 a °h`� m r4 • try 4j o SaR� IS 8:47 8:58 Cie OQG q' 9:47 AM PM 9:30 9:45 AM • Aft k I 19 0-0 9:49 9:56 10:01 10:16 10:24 10:27 10:29 10:38 10:41 10:56 11:04 11:07 11:09 11:18 11:21 11:36 11:44 11:47 11:49 11:58 12:01 12:16 12:24 12:27 12:29 12:38 12:41 12:56 1:04 1:07 3:39 3:48 3:51 4:06 4:14 4:17 4:19 4:28 4:31 4:46 4:54 4:57 4:59 5:08 5:11 5:26 5:34 5:37 5:39 5:48 5:51 6:06 6:14 6:17 6:19 6:26 6:31 6:46 6:54 6:57 AM PM NORTHBOUND SOUTHBOUND � Redondo Beach to � � LAX City Bus Center LAX City Bus Center to Redondo Beach 4i °t aY a 4� 49` oc ° at Aft h' mop ,�•r z'y.9 °� • a�5e 9Y 'Pe ►; Q�ZyA Q T� Z h ,'m 6:33 • ! ` 7:22 7:05 7:22 7:33 6:00 6:17 6:28 6:42 6:53 7:03 7:13 6:30 6:47 6:58 7:12 7:23 7:33 7:43 7:25 7:42 7:53 8:07 8:18 8:28 8:38 8:10 8:27 8:38 8:52 9:07 9:17 9:27 8:50 9:07 9:18 9:32 9:47 9:57 10:07 9:35 9:52 10:03 10:17 10:32 10:42 10:52 10:25 10:42 10:53 11:07 11:22 11:32 11:42 11:10 11:27 11:38 11:52 12:07 12:17 12:27 11:50 12:07 12:18 12:32 12:47 12:57 1:07 12:35 12:52 1:03 1:17 1:32 1:42 1:52 1:45 2:02 2:13 2:27 2:42 2:52 3:02 2:30 2:47 2:56 3:12 3:27 3:37 3:47 3:10 3:27 3:38 3:52 4:07 4:17 4:27 3:55 4:12 4:23 4:37 4:52 5:02 5:12 4:45 5:02 5:13 5:27 5:42 5:52 6:02 5:30 5:47 5:58 6:12 6:27 6:37 6:47 6:10 6:27 6:38 6:52 7:07 7:17 7:27 6:55 7:12 7:23 7:37 7:52 8:02 8:12 7:45 8:02 8:13 8:27 6:42 8:52 9:02 8:30 8:47 8:58 9:12 9:27 9:37 9:47 AM PM 9:30 9:45 AM PM 4i °t aY a 4� 49` oc ®y xe at Aft �i mop ,�•r z'y.9 ata • f Q 7:50 8:45 8:05 9:00 6:05 6:22 6:33 6:47 7:02 7:12 7:22 7:05 7:22 7:33 7:47 8:02 8:12 8:22 8:15 8:32 8:43 8:57 9:12 9:22 9:32 9:10 9:27 9:38 9:52 10:07 10:17 10:27 10:10 10:27 10:38 10:52 11:07 11:17 11:27 11:15 11:32 11:43 11:57 12:12 12:22 12:32 12:10 12:27 12:38 12:52 1:07 1:17 1:27 1:10 1:27 1:38 1:52 2:07 2:17 2:27 2:35 2:52 3:03 3:17 3:32 3:42 3:52 3:30 3:47 3:58 4:12 4:27 4:37 4:47 4:30 4:47 4:58 5:12 5:27 5:37 5:47 5:35 5:52 6:03 6:17 6:32 6:42 6:52 6:30 6:47 6:58 7:12 7:27 7:37 7:47 7:30 7:47 7.58 8:12 8:27 8:37 8:47 8:30 8.47 8:58 9:12 9:27 9:37 9:47 AM PM 2:51 3:09 3:21 3:30 3:45 HOW TO READ A BUS SCHEDULE 'j Find the schedule for the day of the week and G the direction you wish to ride, Find the timepoints closest to your origin and -- destination. The timepoints are shown on the system map and indicate the time the bus is scheduled to be at the particular location. Your nearest bus stop may be between time- points. 3 Read down the column to see the times when a trip will be at the given timepoint. Read the times across to the right to see when the trip reaches other timepoints. If no time is shown, that trip does not serve that timepoint. HOLIDAY SCHEDULES BCT does not operate on Thanksgiving Day, Christmas Day, and New Year's Day_ Saturday schedules are operated on Memorial Day, Independence Day, Labor Day, and Veterans Day. City of Redondo Beach WAVE Dial A Ride The WAVE Dial A Ride service for Redondo Beach and Hermosa Beach senior and disabled residents operates in Redondo Beach, Hermosa Beach, and medical destinations in the immediate area. Persons interested in using the WAVE Dial A Ride must complete an application for a WAVE Identification Card. Applications are available on the City's webpage at www.beachcitiestransit.org or at the City of Redondo Beach Transit Division, 415 Diamond Street, Redondo Beach; and Senior and Family Services, 1922 Artesia Blvd, Redondo Beach. For more information and an application, please call: 310.937.6660 9t 96 r 4� 49` oc ®y xe at Aft �i mop ,�•r z'y.9 ata t7d4 M Q 7:50 8:45 8:05 9:00 8:40 9:45 8:52 9:57 9:06 10:11 9:24 9:36 10:29 10:41 4t 10:00 11:05 10:40 11:40 10:52 11:52 11:06 12:06 11:24 11:36 12:24 12:36 11:45 12:45 12:00 1:00 5:55 6:07 6:21 6:39 6:51 7:00 7:15 6:40 6:52 7:06 7:24 7:36 7:45 8:00 7:20 7:32 7:46 8:04 8.16 8:25 8:40 8:05 8:17 6:31 8:49 9:01 9:10 9:25 8:55 9:07 9:21 9:39 9:51 10:00 10:15 9:40 9:52 10:06 10:24 10:36 10:45 11:00 10:20 10:32 10:46 11:04 11:16 11:25 11:40 11:05 11:17 11:31 11:49 12:01 12:10 12:25 12:15 12:27 12:41 12:59 1:11 1:20 1:35 1:00 1:12 1:26 1:44 1:56 2:05 2:20 1:40 1:52 2:06 2:24 2:36 2:45 3:00 2:25 2:37 2:51 3:09 3:21 3:30 3:45 3:15 3:27 3:41 3:59 4:11 4:20 4:35 4:00 4:12 4:26 4:44 4:56 5:05 5:20 4:40 4:52 5:06 5:24 5:36 5:45 6:00 5:25 5:37 5:51 6:09 6:21 6:30 6:45 6:15 6:27 6:41 6:59 7:11 7:20 7:35 7:00 7:12 7 :26 744 7:56 8:05 6:20 7:40 7:52 8:06 8:24 8:36 8:45 9:00 8:25 8:37 8:51 9:09 9:21 9:30 9:45 AM PM 9t 96 r Aft Aft Avk AV.% 0 i 6:45 7:40 6:57 7:52 7:11 8:06 7:29 7:41 8:24 8:36 7:50 8:45 8:05 9:00 8:40 9:45 8:52 9:57 9:06 10:11 9:24 9:36 10:29 10:41 9:45 10:50 10:00 11:05 10:40 11:40 10:52 11:52 11:06 12:06 11:24 11:36 12:24 12:36 11:45 12:45 12:00 1:00 1:05 2:00 1:17 2:12 1:31 2:26 1:49 2:01 2:44 2:56 2:10 3:05 2:25 3:20 3:00 3:12 3:26 3:44 3:56 4:05 4:20 4:05 5:00 4:17 5:12 4:31 5:26 4:49 5:01 5:44 5:56 5:10 6:05 5:25 6:20 6:00 6:12 6:26 6:.44 6:56 7:05 7:20 7:05 8:00 7:17 8:12 7:31 8:26 7:49 6:01 8:44 8:56 8:10 9:05 8:25 9:20 8:55 9:07 9:21 9:39 9:51 10:00 10:15 AM PM FARES AND PASSES Beach Cities Transit Fixed Route Fares Adults /Students (Grades K -12) $1.00 Seniors /Disabled $0,550 Medicare Card Holders $0,550 BCT System Transfers FREE Interagency Transfers $0.25 Monthly Beach Cities Transit Passes Type of Pass Redondo Beach Non - Residents Residents Adults _$40.00 $40.00 Students K -12 $8.00 $20,00 Senior /Disabled $5,00 $10,00 BCT fare is $1.00. Senior /Disabled passengers and Medicare card holders ride for reduced fares at any time. BCT Monthly Passes Persons interested in obtaining a BCT monthly pass must complete an application for a BCT Identification Card (monthly pass stickers must be affixed to the BCT ID card). Applications are available on the City's webpage at www.beachcitiestransit.org or at the City of Redondo Beach Transit Division, 415 Diamond Street, Redondo Beach; and Senior and Family Services, 1922 Artesia Blvd., Redondo Beach. The City of Redondo Beach subsidizes local BCT monthly bus passes for Redondo Beach residents who are seniors, disabled, and students. Age and residency verification (current utility bill) are required prior to receiving tJrpyt�sidy. For complete details go to www.beac ti ansit.org. 220 EL SEGUNDO CITY COUNCIL AGENDA STATEMENT AGENDA DESCRIPTION: MEETING DATE: June 16, 2015 AGENDA HEADING: Consent Agenda Consideration and possible action regarding adoption of a Resolution appointing City Council Member Mike Dugan, Interim Director of Finance Misty Cheng, and Acting Fiscal Service Manager Trang Nguyen, or designee to serve as board member, alternate board member, and substitute alternate board member on the Independent Cities Risk Management Association ( ICRMA) governing board. (Fiscal Impact: none) RECOMMENDED COUNCIL ACTION: 1) Adopt Resolution appointing City Council Member Mike Dugan, Interim Director of Finance Misty Cheng and Acting Fiscal Services Manager Trang Nguyen or designee to serve as a board member, alternate board member, and substitute alternate; 2) Alternately discuss and take other action related to this item. ATTACHED SUPPORTING DOCUMENTS: 1.) Resolution to appoint specific representatives to ICRMA. FISCAL IMPACT: N/A Amount Budgeted: N/A Additional Appropriation: N/A Account Number(s): None ORIGINATED BY: Trang Nguyen, Acting Fiscal Services Manag r 0 REVIEWED BY: Misty Cheng, interim Finance Director AA APPROVED BY: Greg Carpenter, City Manager. C BACKGROUND AND DISCUSSION: The bylaws of ICRMA require that the Governing Board shall be comprised of one representative from each member. In addition to the delegate representative, who may be a legislative member, an alternate and substitute alternate may be appointed either of whom may vote in the absence of the delegate representative. If the member chooses to designate an alternate or substitute alternate, other than a legislative member, the person(s) designated shall have one of the following positions, or their equivalent, City Attorney, Assistant City Attorney, Financial Officer, City Administrator /Manager, Assistant /Deputy City Administrator /Manager, Assistant to City Manager, Risk Manager, Human Resources Director /Manager, or Administrative Services Director. Also, the resolution should appoint by name, rather than by title, per ICRMA general counsel. 221 222 RESOLUTION NO. A RESOLUTION APPOINTING REPRESENTATIVES TO THE INDEPENDENT CITIES RISK MANAGEMENT AUTHORITY (" ICRMA"). The City Council of the city of El Segundo resolves as follows: SECTION 1: The City Council finds and declares as follows: A. El Segundo is a member of the Independent Cities Risk Management Authority ( "ICRMA "). B. Pursuant to the ICRMA By -laws and Joint Powers Agreement, the City Council may appoint a delegate representative, who may be a legislative member, an alternate and substitute alternate may be appointed either of whom may vote in the absence of the delegate representative. If a member chooses to designate an alternate, other than a legislative member, the person(s) designated shall have one of the following positions, or their equivalent, City Attorney, Assistant City Attorney, Financial Officer, City Administrator/Manager, Assistant/Deputy City Administrator/Manager, Assistant to the City Manager, Risk Manager, Human Resources Director/Manager, or Administrative Services Director. SECTION 2: City Council Member Mike Dugan is appointed to serve on the ICRMA Governing Board as the City's representative. SECTION 3: The Interim Director of Finance Misty Cheng is appointed as the City's alternate representative and the Acting Fiscal Services Manager Trang Nguyen as the substitute alternate. The City Manager has the authority to designate an alternate and substitute alternate as needed to represent the City's interest. SECTION 4: The individuals appointed by this Resolution are authorized to represent the City while acting as ICRMA delegates. Such authority includes the power to vote for the City on matters presented to the ICRMA Governing Board. These representatives are directed to keep the City Council regularly informed regarding ICRMA proceedings. SECTION 5: This Resolution will become effective immediately upon adoption. PASSED AND ADOPTED this _ day of , 2015. ATTEST: Tracy Weaver, City Clerk -I- Suzanne Fuentes, Mayor 223 APPROVED AS TO FORM: Mark D. Hensley, City Attorney Karl H. Berger, Assistant City Attorney ATTEST: STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS CITY OF EL SEGUNDO 1 I, Tracy Weaver, City Clerk of the City of El Segundo, California, do hereby certify that the whole number of members of the City Council of said City is five; that the foregoing Resolution No. was duly passed and adopted by said City Council, approved and signed by the Mayor of said City, and attested to by the City Clerk of said City, all at a regular meeting of said Council held on the day of 2015, and the same was so passed and adopted by the following vote: AYES: NOES: ABSENT: ABSTAIN: Tracy Weaver, City Clerk -2- 224 EL SEGUNDO CITY COUNCIL MEETING DATE: June 16, 2015 AGENDA STATEMENT AGENDA HEADING: Consent AGENDA DESCRIPTION: Consideration and possible action to adopt an ordinance updating the El Segundo Municipal Code regulating the preferential parking program, specifically extending the permit renewal duration. (Fiscal Impact: None) RECOMMENDED COUNCIL ACTION: Second reading by title only and adopt Ordinance Number 1507 amending Sections 8 -5A -7 subdivision (B) of the El Segundo Municipal Code regarding preferential parking permit renewal duration. 2. Alternatively, discuss and take other action related to this item. ATTACHED SUPPORTING DOCUMENTS: Ordinance amending the Municipal Code FISCAL IMPACT: Included in Adopted Budget Amount Budgeted: $0 Additional Appropriation: No Account Number(s): ORIGINATED BY: Brian Evanski, Police Captain REVIEWED BY: Mitch Tavera, Chief of Police APPROVED BY: Greg Carpenter, City Manager BACKGROUND AND DISCUSSION: In 2012, the City revived its preferential parking program in an effort to alleviate parking congestion in residential neighborhoods in the northeast section of the City caused by overflow parking from nearby businesses on Sepulveda/Walnut Ave. Since 2012, the preferential parking area has continued to expand and the number of parking permits issued has increased to eight hundred -sixty (860). Currently, the El Segundo Municipal Code requires the City to issue parking permits that are valid for only one year, thus requiring residents to renew annually. This mandate burdens both residents and City staff every year to facilitate and manage the renewal process. The annual issuance of new permits also adds nearly $4,000 to the City's yearly expenses. Staff recommends that City Council adopt an ordinance revising the Municipal Code to extend the renewal period from one year to two years. This will make the process more efficient and less cumbersome for residents, and it is a cost - effective change for the City. Please note that the residents are generally very happy with the permit parking program and the relief it has brought them, but have also voiced a desire to extend the valid dates of the permits issued. 225 This resolution will appoint Council Member Mike Dugan as the governing board member, Interim Director of Finance Misty Cheng as alternate governing board member and Acting Fiscal Services Manager Trang Nguyen, as the substitute alternate and grant authority to the City Manager to designate a substitute alternate as needed to represent the City's interest. 226 EXHIBIT A ORDINANCE NO. 1507 AN ORDINANCE AMENDING TITLE 8, CHAPTER 5, ARTICLE A REGARDING THE CITY OF EL SEGUNDO'S PREFERENTIAL PARKING PROGRAM. The Council of the City of El Segundo does ordain as follows: SECTION 1: The City Council finds and declares as follows: A. In 1985, the City Council established the City of El Segundo's Preferential Parking Program pursuant to its authority under the California Constitution and Vehicle Code § 22507; B. As part of the program, residents may apply for permits that exempt them from certain parking restrictions in certain residential areas; C. Currently, the permits are valid for one year and may be renewed for additional periods of one year. Due to an increasing number of permits being processed, however, it is in the public interest that the El Segundo Municipal Code ( "ESMC") be amended to extend the duration of each permit issued by the City to two years; and D. The City Council desires to increase efficiency and reduce the number of permits issued on an annual basis by extending the duration of permits to two years. SECTION 2: ESMC § 8 -5A -7, subdivision (B), is amended to read as follows: "B. Duration: Preferential parking permits issued pursuant to this Section are slat remai�rin— effective for a period of two one years and any additional or—fraction thereof, and may be renewed for a period of two one years, as long as the permit holder continues to reside in the dwelling unit, or until the preferential parking zone for which the permit was issued is dissolved, whichever period of time is less." SECTION 3: If any part of this Ordinance or its application is deemed invalid by a court of competent jurisdiction, the city council intends that such invalidity will not affect the effectiveness of the remaining provisions or applications and, to this end, the provisions of this Ordinance are severable. SECTION 4: Repeal of any provision of the ESMC does not affect any penalty, forfeiture, or liability incurred before, or preclude prosecution and imposition of penalties for any violation occurring before this Ordinance's effective date. Any such repealed part will remain in full force and effect for sustaining action or prosecuting violations occurring before the effective date of this Ordinance. Page 1 of 2 227 SECTION 5: The City Council determines that this ordinance is exempt from review under the California Environmental Quality Act (California Public Resources Code §§ 21000, et seq., "CEQA ") and the regulations promulgated thereunder (14 California Code of Regulations §§ 15000, et seq., the "CEQA Guidelines ") because it consists only of minor revisions and clarifications to an existing municipal code and specification of procedures related thereto and will not have the effect of deleting or substantially changing any regulatory standards or findings required therefor. This ordinance is an action that does not have the potential to cause significant effects on the environment. SECTION G: The City Clerk is directed to certify the passage and adoption of this Ordinance; cause it to be entered into the City of El Segundo's book of original ordinances; make a note of the passage and adoption in the records of this meeting; and, within fifteen (15) days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law. SECTION 7: This Ordinance will take effect on the 31 st day following its final passage and adoption. PASSED AND ADOPTED this __ day of -2015. ATTEST: Tracy Weaver, City Clerk APPROVED AS TO FORM Mark D. Hensley, City Attorney C Karl H. Berger, Assistant City Attorney Suzanne Fuentes, Mayor Page 2 of 2 228 EL SEGUNDO CITY COUNCIL MEETING DATE: June 16, 2015 AGENDA STATEMENT AGENDA HEADING: Consent Agenda AGENDA DESCRIPTION: Consideration and possible action to adopt a resolution approving the release a covenant to hold property as one parcel at 228 and 230 Nevada Street and the release of an agreement that allowed construction of a building over a portion of a City sewer easement at 235 and 239 Oregon Street. Applicant: Smoky Hollow Partners, LLC (Fiscal Impact: None) RECOMMENDED COUNCIL ACTION: 1. Adopt the proposed Resolution approving the release of a March 28, 1969 covenant to hold property as one parcel at 228 and 238 Nevada Street and the release of an October 5, 1967 agreement that allowed construction of a building over a portion of City sewer easement located at 235 and 239 Oregon Street, and directing staff to prepare and execute documents to effectuate such releases; and /or 2. Alternatively, discuss and take other possible action related to this item. ATTACHED SUPPORTING DOCUMENTS: 1. Proposed Resolution; 2. Planning Commission Resolution No. 2770, approving a Smoky Hollow Site Plan Review to renovate and convert three buildings to creative office use and allow for shared use of parking among three parcels through off -site parking covenants at 235 Oregon Street, 239 Oregon Street, and 228, 230 and 238 Nevada Street. 3. Planning Director Approval letter, dated March 11, 2015, for Lot Line Adjustment No. LLA 14 -15, to combine four existing parcels into three parcels at 235 and 239 Oregon Street and 228, 230 and 238 Nevada Street. FISCAL IMPACT: None Amount Budgeted: N/A Additional Appropriation: N/A Account Number(s): N/A s ORIGINATED BY: Kimberly Christensen, AICP, Planning Manager REVIEWED BY: Sam Lee, Planning and Buildin afety Director , APPROVED BY: Greg Carpenter, City Manager BACKGROUND AND DISCUSSION: On March 11, 2015 the Director of Planning and Building Safety approved a lot line adjustment (LLA No. 14 -15) to adjust the parcel lines between four adjoining parcels to create three parcels (Exhibit 3). The project site is addressed 235 and 239 Oregon Street and 228, 230, and 238 Nevada Street. Three existing buildings as well as a shared parking lot are located at the prof ecti 0 229 site. The lot line adjustment removed the lot line separating the existing parking lot (addressed 238 Nevada Street) and the existing building (addressed 228 and 230 Nevada Street). The lot line adjustment also adjusted the parcel lines between the parcels addressed 235 and 239 Oregon Street, each of which is the location of an existing building. On March 18, 2015, the Planning Commission approved Resolution No. 2770 (Exhibit 2) approving a project to renovate the three existing office /research and development /warehouse buildings into three creative office buildings. The project included demolition of a shared lobby structure that connected the buildings addressed 235 and 239 Oregon Street, demolition of an unpermitted wood - framed addition at 235 Oregon Street, enhancements to the three building exteriors, increased landscaping, a shared parking arrangement between the three buildings in the existing surface parking lot, and ADA- compliant access improvements. Covenant to Hold Property as One Parcel In 1969, for the purposes of obtaining a building permit, the property owners of 228 Nevada Street (now 228 and 230 Nevada Street) recorded a covenant and agreement to hold 228 Nevada Street (building site) and 238 Nevada Street (parking lot) as one parcel. The City required this covenant to be recorded to ensure that required off - street parking for the new building is provided. The covenant restricts the two parcels from being sold separately, and therefore restricts the separation of the required off - street parking from the building. The terms of the covenant require the City Council to release the covenant. The March 11, 2015 Lot Line Adjustment removed the lot line between the building site (228 and 230 Nevada Street) and the parking lot site (238 Nevada Street), and the two parcels have been combined into one. Because the building and the parking lot are now located on the same parcel, there is no longer a need for a covenant to ensure the off - street parking area and building remain tied together. Aareement to allow construction over a Cit y sewer easement In 1967, the City of El Segundo and the owner of the two parcels now addressed 235 Oregon Street and 239 Oregon Street entered into an agreement to allow the construction of a joint entryway connecting the two buildings over an existing City sewer easement. The two parcels each have a 5 foot wide City sewer easement running east /west along the subject property line (total easement width is 10 feet). The joint entryway provided access to both the 235 Oregon Street and 239 Oregon Street buildings. On March 18, 2015 the Planning Commission adopted Resolution No. 2770 which approved renovation of the three existing buildings and associated site improvements at the project site (235 and 239 Oregon and 228, 230 and 238 Nevada Street). The approved building renovations to 235 and 239 Oregon Street included demolition of the joint entryway structure approved by the 1967 agreement with the City. The current property owner, Smoky Hollow Partners, LLC, will completely remove the portion of the building located over the City sewer easement and will leave the area improved only with landscaping and on -grade hardscape. Release of the agreement will ensure that structures may not be built in the City's easement area on 235 and 239 Oregon Street properties. 230 CONCLUSION: Planning staff recommends that the City Council adopt the proposed resolution releasing the above - referenced covenant and agreement, and directing staff to prepare and execute documents to effectuate such releases. P:\Planning & Building Safety \0 Planning - Old\PROJECTS (Planning) \1076- 1100\EA- 1099\Release of Covenant and Agreement \CC sr Release of Covenant and Agreement 6.16.2015.doc 231 23 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL AUTHORIZING THE RELEASE OF COVENANT TO HOLD PROPERTY AS ONE PARCEL AT 228, 230 AND 238 NEVADA STREET AND THE RELEASE OF AGREEMENT ALLOWING THE CONSTRUCTION OF A STRUCTURE OVER A PORTION OF CITY SEWER EASEMENT AT 235 AND 239 OREGON STREET WITHIN THE CITY OF EL SEGUNDO. The City Council of the City of El Segundo resolves as follows: SECTION 1; The City Council finds and declares that: A. Smoky Hollow Partners, LLC is the owner of certain properties in the City of El Segundo addressed today as 235 and 239 Oregon Street and 228, 230 and 238 Nevada Street ( "Project Site "); B. On December 10, 2014 Smoky Hollow Partners, LLC applied for a project to renovate three existing office /research and development/warehouse buildings to creative office use; complete extensive exterior renovations, including removal of an existing structure over a City sewer easement; and; adjust the lot lines between 4 existing parcels to create 3 parcels at the Project Site; C. On March 11, 2015, the Director of Planning and Building Safety approved Lot Line Adjustment No. LLA 14 -15 to adjust the lot lines between the four existing parcels at the Project Site to create three parcels. The conditions of approval of the Lot Line Adjustment LLA 14 -15 required the applicant to release the 1969 Covenant and Agreement to Hold Property as One Parcel at 228, 230 and 238 Nevada Street, and to release the 1967 agreement to allow construction over a City sewer easement at 235 and 239 Oregon Street before final building inspection of the project; D. On March 18, 2015, the Planning Commission adopted Resolution No. 2770 approving Smoky Hollow Site Plan Review No. SHSPR 14 -04, Off - Site Parking Covenant No. MISC 14 -08, and Adjustment No. ADJ. 14 -11 at the Project Site. The conditions of approval of Resolution No. 2770 also required the applicant to release the 1969 Covenant and Agreement to Hold Property as One Parcel at 228, 230 and 238 Nevada Street, and to release the 1967 agreement to allow construction over a City sewer easement at 235 and 239 Oregon Street before final building inspection of the project; E. The subject March 28, 1969 Covenant and Agreement to Hold Property as One Parcel (Instrument No. 3296 in the Los Angeles County Recorder's Office) identifies the covenant is in effect until release by authority of the -1- 233 City Council of the City of El Segundo; F. On June 16, 2015, the City Council, at its regularly scheduled meeting, considered the request to release the subject covenant to hold property as one parcel and release the agreement to allow construction over a City sewer easement and the information regarding the request provided by the Planning Commission and City Staff; and G. This Resolution and its findings are made based upon the entire record including the evidence presented to the City Council at its June 16, 2015 public hearing, including, without limitation, the staff report submitted by the Planning and Building Safety Department. SECTION 2: The City of El Segundo City Council authorizes the release of the 1969 Covenant and Agreement to Hold Property as One Parcel (Instrument No. 3296 in the Los Angeles County Recorder's Office) and 1967 Agreement to allow construction over a City sewer easement (Instrument No. 2169 in the Los Angeles County Recorder's Office), as described in attached Exhibits "A" and "B," which are incorporated by this reference, and made part of this resolution. SECTION 3: The City of El Segundo City Council authorizes and directs staff to prepare and execute documents to effect such releases, and such documents shall be duly recorded on the properties. SECTION 4: This Resolution will become effective immediately upon adoption and will remain effective unless repealed or superseded. SECTION 5: The City Clerk will certify to the passage and adoption of this Resolution; will enter the same in the book of original Resolutions of said City; and will make a minute of the passage and adoption thereof in the record of proceedings of the City Council of said City, in the minutes of the meeting at which the same is passed and adopted. [SIGNATURES ON FOLLOWING PAGE] -2- 234 PASSED AND ADOPTED this day of , 2015. Suzanne Fuentes, Mayor ATTEST: STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS CITY OF EL SEGUNDO 1 I, Tracy Weaver, City Clerk of the City of El Segundo, California, do hereby certify that the whole number of members of the City Council of said City is five; that the foregoing Resolution No. was duly introduced by said City Council at a regular meeting held on the day of 2015, and was duly passed and adopted by said City Council, approved and signed by the Mayor, and attested to by the City Clerk, all at a regular meeting of said Council held on the day of 2015, and the same was so passed and adopted by the following vote: AYES: NOES: ABSENT: ABSTAIN: Tracy Weaver, City Clerk APPROVED AS TO FORM: Mark D. Hensley, City Attorney -3- 235 2 36 RESOLUTION NO. 2770 A RESOLUTION APPROVING A SMOKY HOLLOW SITE PLAN REVIEW TO RENOVATE AND CONVERT THREE BUILDINGS TO CREATIVE OFFICE USE AND ALLOW FOR SHARED USE OF PARKING AMONG THREE PARCELS THROUGH OFF -SITE PARKING COVENANTS AT 235 OREGON STREET, 239 OREGON STREET AND 228, 230 AND 238 NEVADA STREET. (PROJECT NOS. EA -1099; SHSPR 14 -04; AND MISC 14 -08) The Planning Commission of the City of El Segundo does resolve as follows: SECTION 1: The Commission finds and declares that: A. On December 4, 2014, Michael Ortwein of Smoky Hollow Partners, LLC filed an application to allow exterior building and site improvements to three existing buildings and allow two of the subject buildings (235 Oregon Street and 239 Oregon Street) to meet on -site parking requirements through off -site parking covenants in a shared parking area at 228, 230 and 238 Nevada Street (the "Project "). The Project is collectively identified as Environmental Assessment (EA- 1099); Smoky Hollow Site Plan Review No. SHSPR 14 -04; and Off -Site Parking Covenant request (MISC. No. 14 -08). The Project site is consists 'of three existing buildings and associated surface parking improvements located on three parcels; B. The applicant's Project application also included a request for a Lot Line Adjustment (LLA 14 -15) to modify the lot lines between four existing parcels to create three parcels. The Lot Line Adjustment request requires approval by the Director of Planning and Building Safety. The Director issued an approval letter for the lot line adjustment on March 11, 2015; C. The applicant's Project application also included a request for an Administrative Adjustment (ADJ 14 -11) to allow shared use of two loading spaces between the three Project area buildings. This request requires approval by the Director of Planning and Building Safety. The Director issued an approval letter for this administrative adjustment on March 12, 2015; D. The City's Planning and Building Safety Department reviewed the Project for, in part, consistency with the General Plan and conformity with the El Segundo Municipal Code ( "ESMC "); E. In addition, the City reviewed the Project's environmental impacts under the California Environmental Quality Act (Public Resources Code §§ 21000, of seq., "CEQA "), the regulations promulgated thereunder (14 Cal. Code of Regulations § §15000, of seq., the "CEQA Guidelines "), and the City's Environmental Guidelines (City Council Resolution No. 3805, adopted March 16, 1993); 237 F. The Planning and Building Safety Department completed its review and scheduled a public hearing regarding the application before this Commission for March 18, 2015; G. On March 18, 2015, the Commission held a public hearing to receive public testimony and other evidence regarding the application including, without limitation, information provided by representatives of Smoky Hollow Partners, LLC; H. The Commission considered the information provided by City staff, public testimony, and the representatives for the applicant; and I. This Resolution, and its findings are made based upon the entire administrative record including, without limitation, testimony and evidence presented to the Commission at its March 18, 2015 public hearing including, without limitation, the staff report submitted by the Planning and Building Safety Department. SECTION 2: Factual Findings and Conclusions. The Planning Commission finds that the following facts exist: A. The subject site is located in the Medium Manufacturing (MM) Zone on three parcels with the following addresses: 228, 230 and 238 Nevada Street (Parcel No. 1), 235 Oregon Street (Parcel No. 3) and 239 Oregon Street (Parcel No. 2). B. The three parcels making up the project site total 47,404 gross square feet/40,186 net square feet (less street dedications) in area. The site is located in the block bounded by Nevada Street to the west, Oregon Street to the east, Grand Avenue to the north, and Franklin Avenue to the south. C. The subject site is currently developed with three single -story concrete masonry buildings. The two buildings fronting Oregon Street were built in 1953 and 1955 and were connected by a common lobby in 1968. This common lobby was built over a property line and an active City sewer and easement. .Construction over the City sewer line and easement as well as over an existing property line was permitted by an October 5, 1967 agreement with the City. The one building with frontage on Nevada Street was built in 1969. All three buildings currently share a common parking lot built in 1969. D. Directly north of the subject site is a recently renovated industrial building that has been converted to creative office /research and development use. The project site is surrounded by one- and two -story light industrial and office uses to the west, east and south. E. The Project includes exterior building renovations including demolition of approximately 2,450 square -feet of existing building area (removal of an existing unpermitted addition. and common lobby that crosses property line). 238 0 The exterior building renovations include new exterior cladding material, new windows, and a new sloped roof -line. F. The Project includes site improvements such as a reconfigured parking area increasing the number of parking spaces from 38 to 49. Twenty -six of the reconfigured spaces are tandem parking spaces. The project also proposes two on -site loading spaces. There are currently no loading spaces on the site. G. The Project also includes a request for two off -site parking covenants. The first covenant would allow 10 of the 15 required off - street parking spaces for 235 Oregon Street (Parcel No. 3) to be located on the Nevada Street Parcel (Parcel No. 1). The second covenant would allow 13 of the 15 required off - street parking spaces for 239 Oregon Street (Parcel No. 2) to be located on the Nevada Street Parcel (Parcel No. 1). H. The Project requires site plan review for consistency with the development standards and design guidelines of the Smoky Hollow Specific Plan. I. The Project will require reciprocal parking and loading access agreements to formalize the shared parking arrangement among the three parcels that comprise the project site. Reciprocal parking and loading access agreements would clarify that users of each building may enter and exit the shared parking area that is located across the three parcels. SECTION 3: Environmental Assessment. Because of the findings setforth in Section 2, the Project is categorically exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to 14 California Code of Regulations § 15301(d), as a Class 1 categorical exemption (rehabilitation of an existing facility). SECTION 4. General Plan Findings. The Project conforms to the City's General Plan as follows: A. Implementation of the Project will meet relevant goals and policies of the Land Use Element. Implementation of the Project will help achieve Land Use Element Objective LU 4 -3, which is to "provide for new office and research and development uses." The Project will upgrade existing office /light industrial buildings. The three buildings on the project site will have updated exteriors and an increased number of parking spaces available for future tenants seeking creative office space. B. Implementation of the project will help achieve Land Use Element Policy LU5- 3.1, which is to "revitalize and upgrade industrial areas which contain aesthetic or functional deficiencies in such areas as landscaping, off - street parking, or loading areas." The Project will provide 11 additional parking spaces to an existing shared parking lot for the three buildings in the project area. The Project will also aesthetically upgrade the subject site by increasing the landscaped area from 468 square feet to 2,964 square feet. 239 12 C. The General Plan contains relevant Goals, Objectives, and Policies in the Economic Development Element. The goal of Economic Development Element Policy ED 1 -2.2 is to "maintain and promote land uses that improve the City's tax base, balancing economic development and quality of life goals." Upgrading the existing three buildings with help attract and retain commercial tenants and therefore help maintain the City's tax base. The improved appearance of the buildings and increased site amenities will also contribute to meeting the City's quality of life goals for the Smoky Hollow Specific Plan area. D. Implementation of the Project will meet relevant goals and policies of the Circulation Element. The Project is consistent with Circulation Element Objective C3 -2 to "ensure the consideration of the impacts of land use decisions on the City's parking situation." The Project will increase the availability of on -site parking at the project site and help alleviate on- street parking issues in a portion of the Smoky Hollow Specific Plan area. SECTION 5: Site Plan Review Findings. After considering the factual findings of this Resolution, the Planning Commission finds as follows: A. The Project is compatible with the intent and purpose of the specific plan. The Project is consistent with the Goals, Objectives and Polices of the Smoky Hollow Specific Plan. The project is consistent with building design guidelines (ESMC §15- 11- 3(1)(2)) Objective 2.b of having buildings with "richness of surface and texture ", "multi- planed roof - lines ", "avoid reflective surfaces," and "use of white and warm colors." The proposed exterior building improvements are consistent with these identified design guidelines. The Project is consistent with the parking and loading goal of "adequate parking and loading facilities" (ESMC §15- 11- 2(C)(9)). The Project is consistent with Objective 9.1 that states "shared parking wherever feasible" and Objective 9.2 that states "Adequate employee parking near the place of employment." The Project is also consistent with the parking policies of "encouraging consolidated parking in redevelopment projects" and to "promote excess private parking for lease by businesses off - site." The Project will provide an ESMC compliant 49 parking stall and two loading space parking lot that is convenient and centralized parking for employees and customers of the three existing buildings on site. The Project is consistent with landscaping and screening design guidelines (ESMC §15- 11- 3(1)(10)) Objective 10.b. to "group plantings to complement architecture "; Objective 10.c to "use drought tolerant and native planting "; and Objective 10.d to "use landscaping and fencing to define property limits." The project increases the amount of on -site landscaping by over 600 %. This landscaping is grouped in an arrangement that creates distinctive outdoor areas on the site. The landscaping, walls and fencing is also placed in a manner that delineates the property lines of the site. Use of drought tolerant landscaping is now required by ESMC Chapter 10 -5. t B. The Project will not have an adverse impact on the public health, safety, interest, convenience or the general welfare. The Project consists of exterior demolition of 1,250 square -feet of structure and physical alteration to the exteriors and interiors of three buildings; improvements to an existing surface parking lot and the addition of landscaping to an existing commercial site. Project construction is required to comply with all applicable building, fire and other City, State and Federal regulations. The renovation of the three building Project area will not have an adverse impact on the public health, safety, interest, convenience or the general welfare. C. The site plan is compatible with the intent and purpose of the regulations and design guidelines of the Smoky Hollow specific plan. The Project is consistent with Smoky Hollow Specific Plan development standards and applicable ESMC requirements. The Project is consistent with the Smoky Hollow design guidelines as specified in subsection 5.A of this Resolution. SECTION 6: Off -Site Parking Approval Findings. After considering the factual findings of this Resolution, the Commission finds as follows: A. Proximity of the off -site parking facilities. The off -site parking facility is in close proximity to the two sites (235 Oregon Street and 239 Oregon Street) it is proposed to serve. Both the 235 Oregon Street site and 239 Oregon Street buildings have building entrances directly accessible from the shared parking lot. B. Ease of pedestrian access to the off -site parking facilities. Both the 235 Oregon Street and 239 Oregon Street buildings are directly accessible by stairs and an ADA ramp from the shared parking lot. C. Provisions for transportation to and from the off -site parking facility (e.g., shuttle or valet services). There is no need for transportation to and from this adjacent off -site parking facility. D. The type of use the off site parking facilities are intended to serve (i.e., off site parking) may not be appropriate for high turnover uses such as retail sales and services. The off -site parking facilities are appropriate for the proposed creative office uses at 235 Oregon Street and 239 Oregon Street. SECTI ON 7: Approvals. Subject to the Conditions set forth in attached Exhibit "A," which is incorporated by reference, the Planning Commission approves Environmental Assessment No. EA -1099, Smoky Hollow Site Plan Review No. SHSPR 14 -04, and Off -Site Parking Covenants No. MISC. 14 -08. SECTION 8: Reliance on Record. Each and every one of the findings and determinations in this Resolution are based on the competent and substantial evidence, both oral and written, contained in the entire record relating to the project. The findings an041 r_ determinations constitute the independent findings and determinations of the Planning Commission in all respects and are fully and completely supported by substantial evidence in the record as a whole. SECTION 9: Limitations. The Planning Commission's analysis and evaluation of the project is based on the best information currently available. It is inevitable that in evaluating a project that absolute and perfect knowledge of all possible aspects of the project will not exist. One of the major limitations on analysis of the project is the Planning Commission's lack of knowledge of future events. In all instances, best efforts have been made to form accurate assumptions. Somewhat related to this are the limitations on the City's ability to solve what are in effect regional, state, and national problems and issues. The City must work within the political framework within which it exists and with the limitations inherent in that framework. SECTION 10: Summaries of Information. All summaries of information in the findings, which precede this section, are based on the substantial evidence in the record. The absence of any particular fact from any such summary is not an indication that a particular finding is not based in part on that fact. SECTION 11: This Resolution will remain effective unless superseded by a subsequent resolution. SECTION 12: The Commission Secretary is directed to mail a copy of this Resolution to Michael Ortwein and to any other person requesting a copy. SECTION 13: This Resolution may be appealed within ten (10) calendar days after its adoption. All appeals must be in writing and filed with the City Clerk within this time period. Failure to file a timely written appeal will constitute a waiver of any right of appeal. SECTION 14: Except as provided in Section 13, this Resolution is the Commission's final decision and will become effective immediately upon adoption. 242 PASSED, APPROVED AND ADOPTED this 18th day of March 2015. David Wagner, C ir City of El Segund Planning Commission APPROVED AS TO FORM: Mark D. Hensley, City Attorney Wagner - Aye Baldino - Aye Newman - Aye Nicol - Aye Nisley - Aye --u I)-r- By. -7 Karl H. Berger, AssibtanD City Attorney 243 PLANNING COMMISSION RESOLUTION NO. 2770 Exhibit A CONDITIONS OF APPROVAL In addition to all applicable provisions of the El Segundo Municipal Code ( "ESMC "), Smoky Hollow Partners, LLC agrees to comply with the following provisions as conditions for the City of El Segundo's approval of Environmental Assessment No. EA -1099, Smoky Hollow Site Plan Review No. SHSPR 14 -04 and Off -Site Parking Covenant No. MISC. 14 -08 ( "Project Conditions "): Planninq Division Conditions 1. Before building permits are issued, the applicant must submit plans that demonstrate substantial compliance with the plans and conditions of approval on file with the Planning and Building Safety Department. Any subsequent modification to the project as approved, including the site plan and landscaping, must be referred to the Director of Planning and Building Safety to determine whether the Planning Commission should review the proposed modification. 2. Before building permits are issued, the applicant must obtain all the necessary approvals, licenses and permits and pay all the appropriate fees as required by the City. 3. The landscaping and irrigation must be completely installed before the City can finalize the building permit for this Project. 4. Before Certificates of Occupancy are issued for the three buildings in the project area, copies of all recorded documents associated with Lot Line Adjustment No. LLA 14 -15 (Release of Existing Agreement, Release of Existing Covenant, Certificates of Compliance and Grant Deeds) must be provided to the Planning and Building Safety Department. 5. The applicant must submit a draft reciprocal access agreement and a parking, loading and maintenance agreement among the three parcels located in the Project area (235 Oregon Street, 239 Oregon Street, and 228, 230 and 238 Nevada Street). These documents must be reviewed and approved as to farm by the Director of Planning and Building Safety and City Attorney before recordation. The applicant must pay for all fees incurred by the City as a result of the City Attorney's review of these documents before the City issues a building permit final. Proof of recordation of these documents is required to be submitted to the City before the City issues Certificates of Occupancy for the three buildings in the project area. The applicant must pay for all costs associated with such review including, without limitation, attorney's fees incurred by the City Attorney. 244 6. The applicant must submit off -site parking covenants for: 1) 235 Oregon Street and the shared parking lot located at 228, 230 and 238 Nevada Street and 2) 239 Oregon Street and the shared parking lot located at 228, 230 and 238 Nevada Street. These documents must be reviewed and approved as to form by the Director of Planning and Building Safety and City Attorney before recordation. The applicant must pay for all fees incurred by the City as a result of the City Attorney's review of the off -site parking covenants before the City issues a building permit final. Proof of recordation of these documents is required to be submitted to the City before it issues a Certificates of Occupancy for the three buildings in the project area. Public Works Department Conditions 7. The applicant must ensure that encroachment permits required by the City are secured from the Public Works Department before commencing any and all work in the public right -of -way, including lane closure. 8. The condition of sidewalks fronting the project area parcels will be assessed at the end of project construction. Sidewalks must be replaced as necessary, as determined by the Director of Public Works, before issuance of Certificates of Occupancy for the three buildings in the project area. 9. The existing curb must be removed and replaced with a new curb and gutter according to Standard Plans for Public Works Construction (SPPWC) standards along the Oregon and Nevada Street frontages of the project area. PG -64 -10 tack coat and hot asphalt must be used to remove and replace all slot paving next to new concrete. Slot paving must be three feet wide and one foot deep, consisting of six inches of asphalt over six inches of base. 10. The applicant must provide a minimum 4 -foot wide sidewalk clearance behind any sidewalk obstructions (sign posts, power poles, etc). 11. Before the City issues a Certificate of Occupancy, PG -64 -10 tack coat and hot mix asphalt must be used for all slot paving required next to new concrete installations. Slot paving must be 3 feet wide and 1 foot deep, consisting of 6 inches of asphalt over 6 inches of base. 12. Any existing water meters, potable water service connections, fire backflow devices and potable water backflow devices must be upgraded to current City Water Division standards. 13. The applicant must submit plans for water system upgrades to the City of El Segundo Public Works Department for review and approval, including traffic control plans for work in the public right -of -way. 14. Any unused water or sanitary sewer laterals must be abandoned and properly capped at the City main. The contractor must obtain necessary permits and licenses, and provide traffic control plans and shoring plans. 245 15. A grading and drainage plan must be provided and stamped by a registered civil engineer. 16. A utility plan must be provided that shows all existing and proposed utility lines and their sizes (sewer, water, gas, storm drain, electrical, etc.) including easements, around the project site. The required fees will be determined based upon the information provided on the site plan. 17. All construction - related parking must be accommodated on -site. No construction related parking must be permitted off -site. 18. The Project must comply with the National Pollutant Discharge Elimination System (NPDES) requirements and must provide Best Management Practices (BMPs) for sediment control, construction material control and erosion control. 19. All record drawings (As -built drawings) and supporting documentation must be submitted to the Public Works Engineering Division before scheduling the Project's final inspection. Police Department Conditions 20. The Project must comply with all Police Chief addressing, landscaping, lighting, bicycle rack, mailbox and doors /hardware requirements identified in the Police Department review letter issued for this project on December 22, 2014. Compliance with these requirements will be verified by the Police Department as part of the Plan Check review process for this project. Fire Department Conditions 21. The project must comply with the applicable requirements of the California Building and Fire Codes and the International Fire Code- as adopted by the City of El Segundo and El Segundo Fire Department Regulations. 22. The applicant must submit as a separate submittal from plan review, and have approved by the Fire Department before issuance of the building permit, a Fire /Life Safety Plan, identifying fire safety precautions during demolition and construction, emergency site access during construction, permanent fire department access, fire hydrant locations and any existing or proposed fire sprinkler systems and fire alarm systems. Construction Conditions 23. Before any construction occurs, the perimeter of the project area must be fenced with a minimum 6 -foot high fence. The fence must be covered with a material approved by the Planning and Building Safety Department to prevent dust from leaving the site. 246 AA 24. All haul trucks hauling soil, sand, and other loose materials must either be covered or maintain two feet of freeboard. 25. Construction vehicles cannot use any route except the City's designated Truck Routes. 26. During construction and operations, all waste must be disposed of in accordance with all applicable laws and regulations. Toxic wastes must be discarded at a licensed, regulated disposal site by a licensed waste hauler. 27. All leaks, drips and spills occurring during construction must be cleaned up promptly and in compliance with all applicable laws and regulations to prevent contaminated soil on paved surfaces that can be washed away into the storm drains. 28. If materials spills occur, they must be cleaned up in a way that will not affect the storm drain system. 29. The Project must comply with ESMC Chapters 5 -4 and 5 -7, which establish storm water and urban pollution controls. 30. Inspections of the Project site before and after storm events must be conducted to determine whether Best Management Practices have been implemented to reduce pollutant loadings. 31. The storm drain system must be properly maintained and protected at all times during construction. 32. The applicant must provide a telephone number for persons to call to submit complaints associated with the construction noise. The number must be posted on the Project site and must be easily viewed from adjacent public areas. 33. As stated in ESMC Chapter 7 -2, construction related noise is restricted to the hours of 7:00 a.m. to 6:00 p.m. Monday through Saturday, and prohibited at anytime on Sunday or a Federal holiday. Miscellaneous Conditions 34. Michael R. Ortwein and Smoky Hollow Partners, LLC agrees to indemnify and hold the City harmless from and against any claim, action, damages, costs (including, without limitation, attorney's fees), injuries, or liability, arising from the City's approval of Environmental Assessment No. EA -1099, Smoky Hollow Site Plan Review No. SHSPR 14 -04 and Off -Site Parking Covenant No. MISC. 14 -08. Should the City be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, arising out of the City approval of Environmental Assessment No. EA -1099, Smoky Hollow Site Plan Review No. SHSPR 14 -04 and Off -Site Parking Covenant No. MISC. 14 -08, the Applicant agrees to defend the City (at the City's request and with counsel satisfactory to the City) and will indemnify the City for any judgment rendered against it or any sums paid out 47 settlement or otherwise. For purposes of this section "the City" includes the City of El Segundo's elected officials, appointed officials, officers, and employees. By signing this document, Michael R. Ortwein of Smoky Hollow Partners, LLC, certifies that he has read, understood, and agrees to the Project Conditions listed in this document. Michael R. Ortwein Smoky Hollow Partners, LLC PAPlanning & Building Safetyl0 Planning - Old%PROJECTS ( Planning )11076- 11001EA- 10991PIanning CommissionlEA 1099 PCreso.doc W; -1 e) 4 r O C ' way Planning Building / ' Department Elected Officials: March 11, 2015 Suzanne Fuentos, Mayor Carl Jacobson, MayorPro Tom Dave c n, Council Member ll Michael Ortwein MarloFellhauo, Smoky Hollow Partners, LLC Connell Member Mfch 841 Apollo Avenue, Suite 334 Coune7l Me unctlMe mber T ,a`cryc%rril El Segundo CA, 90245 Q-15M 81nd0r, Clly Treasurer RE: Environmental Assessment No. EA -1099 and Lot Line Appointed Officials: Addiustment No. LLA 14 -15 GregCarpontor, C/lyManegor Addresses: 235 and 239 Oregon Street and 228, 230, and Mark D.Honsroy, 238 Nevada Street (Lot Line Adjustment between 4 CllyAflomoy parcels — Current APN Nos. 4139 - 006 -040, -041 and -046). Department Directors: Deborah Cullen, Finance Kevin Smith, Dear Mr. Ortwein: F ire Ch Fire F Martha D#kstre, Human Resources Debra Brighton, In accordance with Government Code § 66412(d) and Chapter 14 -4 of the LlbraryServlces Sam Leo, El Segundo Municipal Code ( "ESMC "), the Planning Division reviewed your Planning B Safety application for the above - referenced project and the Director APPROVED Mitch P lice Chief Environmental Assessment No. EA -1099 and Lot Line Adjustment No. LLA Stephanie oleas, Pubublic ic Works 14 -15 for the proposed lot line adjustment to combine four parcels into three Meredi RecreatlofndParks parcels. After the adjustment the resulting parcels will be the following sizes: Parcel 1 — 21,274 gross square -feet/ 16,833 net square feet www.elsegundo.org • Parcel 2 — 13,305 gross square -feet/ 10,707 net square feet * Parcel 3 — 12,375 gross square -feet/ 9,820 net square feet The following are the findings and facts in support of each finding for this decision: 249 350 Main Street, El Segundo, California 90245 -3813 Phone 1390) 524 -2380 FAX (310) 322 -4167 FINDINGS AND FACTS IN SUPPORT OF FINDINGS: CEQA Finding The proposed project is exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to § 15305(a) of the CEQA Guidelines (14 Cal. Code of Regulations § §15000, et seq.). The proposed project qualifies as a Class 5 exemption because it is a minor lot line adjustment not resulting in the creation of any new parcel. Facts in Support of CEQA Finding The lot line adjustment will adjust the lot lines separating four parcels to create three parcels with lot sizes greater than 11,200 s.f. minimum identified for the Medium Manufacturing (MM) Zone. No new parcels will be created. Lot Line Ad- ustment No. LLA 14 -16 Finding 1 • The proposed lot line adjustment complies with Government Code § 66412 (d) and ESMC § 14 -4 -4 which allow lot line adjustments between four or fewer existing adjacent parcels where a greater number of parcels are not created. Facts in Support of Finding 1 The lot line adjustment will remove the existing lot line separating the two subject parcels with Nevada Street frontage (Lots 72 and 71). The lot line separating Lots 97 and Lot 72 will be adjusted 7.25 feet to the west and the lot line separating Lot 98 from Lot 71 will be adjusted 20.25 feet to the west. The lot line adjustment will result in a reduction in the number of parcels from four to three. Fines The proposed lot line adjustment complies with the 11,200 square -foot minimum lot size in the Medium Manufacturing (MM) Zone as required in ESMC § 15 -6D- 7(B). Facts in Support of Finding 2 The adjusted sizes of the three parcels are consistent with ESMC Title 15 regulations for the Medium Manufacturing (MM) Zone District. Parcel 1 will be 21,274 gross square -feet in size. Parcel 2 will be 13,305 gross square -feet in size. 2 250 /__I) (Z Parcel 3 will be 12,375 gross square -feet in size. The three parcels exceed the 11,200 square -foot minimum lot size identified for the MM Zone. Finding 3 The proposed lot line adjustment complies with the setbacks in the Medium Manufacturing (MM) Zone as required in ESMC § 15- 6D -7(D). _ Facts in Support of Finding 3 The existing buildings located at the project site have existing legal non- conforming front setbacks and the lot line adjustment will not create any additional non - conforming setbacks. The existing and proposed side setbacks comply with side setback requirements. The parcels will have conforming rear setbacks where the parcel boundary is being adjusted. Fin din _ 4 The proposed lot line adjustment complies with the minimum off - street parking requirements as required by ESMC Chapter 15 -15. Facts in Support of Finding 4 The existing three buildings located within the four parcel project area currently share the existing parking lot located on Lot 71. 38 parking spaces are currently provided in the project area. The proposed project will modify the existing parking within the project area to provide 49 parking spaces. The total parking requirement for the proposed office uses in the project area is 47 parking spaces. The required off - street parking for the subject three buildings will be met within the project area. Planning Commission review and approval of off -site parking covenants is required to formalize the shared parking lot arrangement within the project area. Finding 5 • The proposed parcel as configured with the Floor Area Ratio (FAR) i n required by ESMC § 15- 6D -7(F). Facts in Support of Finding 5 in the proposed lot line adjustment complies the Medium Manufacturing (MM) Zone as The maximum allowable FAR in the MM Zone is 0.6. The proposed FAR on Parcel 1 is 0.29. The proposed FAR on Parcel 2 is 0.43. The proposed FAR on Parcel 3 is 0.39. The proposed project complies with the FAR requirements of the MM Zone District. 3 251 rf�y DIRECTOR OF PLANNING AND BUILDING SAFETY ACTION CONDITIONS OF APPROVAL Based on these findings and facts in support of these findings, the Director of Planning and Building Safety APPROVES the proposed project, subject to the following conditions: Planning Conditions: 1. The Lot Line Adjustment Map and Legal Descriptions prepared for recordation must be stamped by a licensed surveyor or civil engineer. 2. The property owner must have new grant deeds recorded to reflect the approved lot line adjustment and copies of the recorded grant deeds must be provided to the Planning and Building Safety Department before Certificates of Occupancy are issued for the renovated buildings. 3. The existing common lobby structure crossing the 235 Oregon Street and 239 Oregon Street property line must be completely demolished before recordation of new grant deeds reflecting the adjusted lot lines. 4. The property owner must record Certificates of Compliance for the adjusted parcels. Copies of the recorded Certificates of Compliance must be provided to the Planning and Building Safety Department before a Certificate of Occupancy is issued or final inspection approval of building permits for the renovated buildings. 5. The applicant must submit all necessary materials (including exhibits) for the preparation of a release of the 1967 agreement allowing construction over the parcel line between Lots 97 and 98 and allowing construction over a City sewer line. The City will prepare the release agreement. The applicant is responsible to record and provide a copy of the recorded agreement to the City before Certificates of Occupancy or final inspection approval of building permits are issued for the renovated buildings. 6. The applicant must submit all necessary materials (including exhibits) for the preparation of a release of the 1969 agreement to tie Lots 71 and 72. The City will prepare the release of covenant. The applicant is responsible to record and provide a copy of the recorded agreement to the City before Certificates of Occupancy or final inspection approval of building permits are issued for the renovated buildings. 7. All documents (Release of Existing Agreement, Release of Existing Covenant, Certificates of Compliance, Grant Deeds, Lot Line Adjustment Map, and Legal Descriptions) must be reviewed and approved as to form by the Director of 4 252 Planning and Building Safety and the City Attorney before recordation. The applicant must pay for all fees incurred by the City as a result of the City Attorney's review of these documents. 8. Before Certificates of Occupancy or final inspection approval of building permits are issued for the three buildings in the project area, copies of all recorded documents (Release of Existing Agreement, Release of Existing Covenant, Certificates of Compliance and Grant Deeds) must be provided to the Planning and Building Safety Department to the satisfaction of the Planning and Building Safety Director. Public Works Conditions: 9. The applicant must ensure that encroachment permits required by the City are secured from the Public Works Department before commencing any and all work in the public right -of -way, including lane closure. 10. The condition of sidewalks fronting the project area parcels will be assessed at the end of project construction. Sidewalks must be replaced as necessary, as determined by the Director of Public Works, before issuance of Certificates of Occupancy for the three buildings in the project area. 11. The existing curb must be removed and replaced with a new curb and gutter according to Standard Plans for Public Works Construction (SPPWC) standards along the Oregon and Nevada Street frontages of the project area. PG -64 -10 tack coat and hot asphalt must be used to remove and replace all slot paving next to new concrete. Slot paving must be three feet wide and one foot deep, consisting of six inches of asphalt over six inches of base. 12. The applicant must provide a minimum 4' wide sidewalk clearance behind any sidewalk obstructions (sign posts, power poles, etc.) 13. Before the City issues a Certificate of Occupancy, PG -64 -10 tack coat and hot mix asphalt must be used for all slot paving required next to new concrete installations. Slot paving must be 3 feet wide and 1 foot deep, consisting of 6 inches of asphalt over 6 inches of base. 14. Any existing water meters, potable water service connections, fire backflow devices and potable water backflow devices must be upgraded to current City Water Division standards. 15. The applicant must submit plans for water system upgrades to the City of El Segundo Public Works Department for review and approval, including traffic control plans for work in the public right -of -way. 5 253 16. Any unused water or sanitary sewer laterals must be abandoned and properly capped at the City main. The contractor must obtain necessary permits and licenses, and provide traffic control plans and shoring plans. 17. A grading and drainage plan must be provided and stamped by a registered civil engineer. 18. A utility plan must be provided that shows all existing and proposed utility lines and their sizes (sewer, water, gas, storm drain, electrical, etc.) including easements, around the project site. The required fees will be determined based upon the information provided on the site plan. 19. All construction- related parking must be accommodated on -site. No construction related parking shall be permitted off -site. 20. The project must comply with the National Pollutant Discharge Elimination System (NPDES) requirements and shall provide Best Management Practices (BMPs) for sediment control, construction material control and erosion control. 21. All record drawings (As -built drawings) and supporting documentation must be submitted to the Public Works Engineering Division before scheduling the project's final inspection. Miscellaneous Conditions: 22. The applicant and property owner, Smoky Hollow Partners, LLC, agrees to indemnify and hold the City of El Segundo harmless from and against any claim, action, damages, costs (including, without limitation, attorney's fees), injuries, or liability, arising from the City's approval of Environmental Assessment No. EA- 1099 or Lot Line Adjustment No. LLA 14 -15. Should the City be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, arising out of the City approval of Environmental Assessment No. EA -1099 or Lot Line Adjustment No. LLA 14 -15, applicant agrees to defend the City (at the City's request and with counsel satisfactory to the City) and will indemnify the City for any judgment rendered against it or any sums paid out in settlement or otherwise. For purposes of this section "the City" includes the City of El Segundo's elected officials, appointed officials, officers, and employees 254 6 r� Should you have any questions, please contact Masa Alkire, Principal Planner at (310) 524 -2371. Sine ly, am e, Director Planning and Building Safety Department By signing this document, the officer(s) of Smoky Hollow Partners, LLC, certifies that (s)he read, understood, and agrees to the Project Conditions listed in this document. Michael R. Ortwein, Smoky Hollow Partners, LLC P:TLANNING & BUILDING SAFETY\O PLANNING - OLD\PROJECTS (PLANNING) \1075- 1100%EA 10991EA -1099 LLA APPROVAL LETTER.DOC 7 255 2 56 EL SEGUNDO CITY COUNCIL AGENDA STATEMENT AGENDA DESCRIPTION: MEETING DATE: June 16, 2015 AGENDA HEADING: Consent Agenda Consideration and possible action to authorize the City Manager, or designee, to record the Notice of Completion accepting completion of work for twenty -five (25) homes related to Project RSI 14 -16 (the City's Residential Sound Insulation Program's Group 60). (Final Contract Amount: $751,114.95) RECOMMENDED COUNCIL ACTION: 1. Authorize the City Clerk to file the City Manager's, or designee's, Notice of Completion in the County Recorder's Office; 2. Authorize the City Manager, or designee, to close out Project No. RSI 14 -16; 3. Authorize the RSI Program Manager to sign the Title 21 Compliance Certificates in accordance with the requirements of the grant funding from Los Angeles World Airports (LAWA) and mail originals to LAWA; and /or 4. Alternatively discuss and take other action related to this item. ATTACHED SUPPORTING DOCUMENTS: Notice of Completion List of homes included in Group 60 (Exhibit A to the Notice of Completion) Sample of Title 21 Compliance Certificate Sample of cover letter to property owners for Title 21 Compliance Certificates FISCAL IMPACT: Included in Adopted Budget Amount Budgeted: $800,663 Additional Appropriation: N/A Account Number(s): 116 - 400 - 0060 -8960 ORIGINATED BY: James S. O'Neill, Program Manager REVIEWED BY: Sam Lee, Director of Planning ilding Safety APPROVED BY: Greg Carpenter, City Manager 4- BACKGROUND AND DISCUSSION: The RSI Program offers modifications to owners of qualifying residential property in the City of El Segundo that reduce interior sound levels of noise generated by air traffic from neighboring Los Angeles International Airport (LAX). At its meeting October 21, 2014 the City Council awarded a construction contract to Spec Construction Co., Inc. for the construction of improvements at twenty -five (25) homes, commonly referred to as Group 60 of the RSI Program. Work at the twenty -five (25) homes has now been completed. The final contract amount is $751,114.95. 257 The Letter Agreement between the City of El Segundo and Los Angeles World Airports (LAWA), which outlines City obligations with regards to grant funds received from LAWA, states, "The City of El Segundo will issue a Title 21 Compliance Certificate for each eligible incompatible property that it sound insulates with LAWA andlor FAA funds... " With sound insulation work now complete, a Title 21 Compliance Certificate would be required for these twenty -five (25) homes. 258 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: Residential Sound Insulation Program — Group 60 Project No.: RSI 14 -16 Notice is given pursuant to California Civil Code §§ 3093, et seq. that: 1. The undersigned is an officer of the owner of interest of the property described below. 2. The project owner's name is: City of El Segundo 3. The full addresses of the project are: attached as Exhibit A and incorporated by reference 4. A work of improvement on the property hereinafter described was field reviewed by City representatives on: see attached Exhibit A 5. The work done was: Residential Sound Insulation Program Improvements 6. On June 16, 2015, 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: SPEC Construction Co., 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: Private Residence(s) listed in Exhibit A 9. The street address of said properties are: set forth in Exhibit A Dated: Sam Lee Planning and Building Safety Director VERIFICATION I, the undersigned, say: I am the Director of Planning and Building Safety 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 at El Segundo, California. Sam Lee Planning and Building Safety Director Notice of Completion 259 260 Exhibit A RSI Number Project Address 60.01 527 West Acacia Avenue 60.02 609 West Oak Avenue 60.03 745 Main Street, Unit 203 60.04 745 Main Street, Unit 206 60.05 745 Main Street, Unit 105 60.06 745 Main Street, Unit 108 60.07 214 East Maple Avenue 60.08 737 Eucalyptus Drive, Unit 1 60.09 737 Eucalyptus Drive, Unit 2 60.10 737 Eucalyptus Drive, Unit 3 60.11 737 Eucalyptus Drive, Unit 4 60.12 737 Eucalyptus Drive, Unit 5 60.13 314 East Im erial Avenue 60.14 314 East Imperial Avenue 60.15 934 Sheldon Street 60.16 516 East Walnut Avenue 60.17 935 Main Street, Unit 301 60.18 813 McCarthy Ct. 60.19 828 Lomita Street 60.20 829 Maryland Street 60.21 840 Bungalow Dr. 60.22 825 Bungalow Drive 60.23 1104 East Acacia Avenue 60.24 1207 East Walnut Avenue 60.25 1216 East Walnut Avenue 261 262 Assessor's Parcel Number - - TO THE CITY DE LOS ANGELES TITLE 21 COMPLIANCE CERTIFICATE California Airport Noise Standards Incompatible Land Use Sound Insulation Projects Dated This is to certify that the residential property for which a legal description, including addresses and assessor's parcel number, are attached hereto and marked Exhibit "A" has been determined by the City of El Segundo ( "City ") to be compatible land within the noise impact boundary around Los Angeles International Airport, Certification of land use compatibility is based on compliance with the requirements of the California Airport Noise Standards, set forth in California Code of Regulations, Title 21 "Division of Aeronautics ", Subchapter 6 "Noise Standards ", Section 5014, in that either: ❑ (a) The residential structure(s) on the property has/have been sound insulated to achieve a maximum interior Community Noise Equivalent Level of 45dB in all habitable rooms, or ❑ (b) The property owner has declined, either explicitly or through a lack of response to inquiries, an offer to participate in a Sound Insulation Program administered by the Implementing Jurisdiction which would have resulted in a maximum interior Community Noise Equivalent Level of 45dB in all habitable rooms, and that the property may, therefore, be considered compatible land pursuant to Section 5014 (a)(4). If declination is through a lack of response, this is to also certify that the City of El Segundo provided adequate opportunities and invitations for participation. ❑ (c) A noise easement has been filed with the County Recorder relative to the property in a form and manner approved by the Los Angeles City Attorney, This Title 21 Compliance Certificate shall serve as notice to the owner(s) of the property, the California Department of Transportation, and Los Angeles World Airports that the property has been determined to be compatible land within the noise impact boundary around the subject Airport pursuant to Section 5014 of the California Airport Noise Standards. A copy of this Certificate will be sent to Los Angeles World Airports by certified mail on the date shown above. Return receipts will be made available to Los Angeles World Airports for a period of not less than two years after that date. This Certificate shall be filed in the City of El Segundo's City Clerk's Office, or in such other permanent location as approved by Los Angeles World Airports, and shall continue in effect until the subject Airport shall be abandoned and shall cease to be used for public airport purposes. Furthermore, in the case where the owner has previously declined to participate in a sound insulation program under (b) above, the Title 21 Compliance Certificate shall continue in effect until the owner(s) or owner's heirs, successors or assigns subsequently participate in a Residential Sound Insulation Program and a new Title 21 Compliance Certificate is filed for the property with (a), above, indicated on the new recorded form. Nothing herein contained shall constitute a waiver of any rights by the owner(s) of the property or owner's heirs, successors and assigns. Approved by: Jaynes S. O'Neill Program Manager 263 EXHIBIT A Property Address: ___.... APN: 264 Elected Officials: Suranne Fuentes, Mayor Carr Jacobson, Mayor Pro Tom Dave Atkinson, Council Member Marie Fefihauer, council Member Michael Dugan, council Member Tracy Weaver, city Clerk Crista Binder, City Treasurer Appointed Officials: Greg Carpenter, City Manager Mark D. Hensley, City A homey Department Directors: Deborah Culfen, Finance Kevin Smith, Fire Chief Martha Dijkstra, Human Resources Debra Brighton, Library Services Sam Lee, Planning and Building Safety Mitch Tavera, Police Chief Stephanie Kalsoureas, Public Works Meredith Petit, Recreation d Parks www.elsegundo.org Planning & Building Safety Residential Sound .Insulation Program [DATE] [PROPERTY OWNERS] [MAILING ADDRESS] [MAILING ADDRESS] [CITY], [STATE] [ZIP CODE] Dear [PROPERTY OWNER], Attached is a copy of the Title 21 Compliance Certificate for your property at: [PROPERTY ADDRESS], El Segundo, California 90245 You are receiving this notice because your property received Residential Sound Insulation Improvements through the City of El Segundo's Residential Sound Insulation (RSI) Program. This Title 21 Compliance Certificate serves as notice that the property has been determined to be compatible land within the noise impact boundary around Los Angeles International Airport pursuant to Section 5014 of the California Airport Noise Standards. If you have any questions, please contact me at (310) 524 -2352 or via email at ioneill ct clseunclo.org. Respectfully, James S. O'Neill Program Manager 333 Main Street, Unit A, El Segundo, California 50245 Phone (390) 524 -2352 FAX (390) 662.4052 265 266 EL SEGUNDO CITY COUNCIL MEETING DATE: June 16, 2015 AGENDA STATEMENT AGENDA HEADING: Consent Agenda AGENDA DESCRIPTION: Consideration and possible action to 1) approve an amendment with J. Cab & Sons for $59,867.58; 2) accept as complete the City Hall Roof Repairs project; and 3) authorize the City Clerk to file a Notice of Completion in the County Recorder's Office for Project No. PW 13 -05. (Fiscal Impact: $388,867.58) RECOMMENDED COUNCIL ACTION: Authorize the City Manager to execute a contract amendment with J. Cab & Sons, in a form as approved by the City Attorney, for $59,867.58 2. Accept the work on the City Hall Roof Project as complete. 3. Authorize the City Clerk to file a Notice of Completion in the County Recorder's Office for Project No. PW 13 -05. 4. Alternatively, discuss and take other possible action related to this item. ATTACHED SUPPORTING DOCUMENTS: Notice of Completion FISCAL IMPACT: Within Adopted Budget Amount Budgeted: $378,350.00 Additional Appropriation: $6,317.58 to be used from the approved Building Maintenance Budget $4,200.00 used from approved ISD Budget Account Number(s): 301 - 400 - 8201 -8511 (Capital Projects: City Hall Roof) ORIGINATED BY: Floriza Rivera, Principal Fnginee REVIEWED BY: Stephanie Katsouleas, Public Works Director APPROVED BY: Greg Carpenter, City Manager BACKGROUND AND DISCUSSION: On May 21, 2013, City Council awarded a standard Public Works contract to J. Cab & Sons Roofing (J. Cab) for $329,000 for City Hall Roof repairs and allocated $49,350 for contingencies. The roof construction, including punch list items was significantly completed by June 30, 2014. However, during construction, significant water damage occurred to the interior portion of the building because a newly installed roof drain had not been sealed when it began to rain in the early morning hours of February 27, 2014. The City believes the resulting damage was the full responsibility of the contractor. Repairs were first pursued with the contractor until they were advised to stop working on the damaged areas by their own attorneys. Staff then 1 267 engaged the City's own insurance company and subsequently pursued the repairs and associated costs. That work was completed in May, 2015. The City insurance's company is pursuing reimbursement for the damages and our City Attorney has advised that the roof project can now be closed. During the course of roof construction, several change orders were approved for a total additional cost of $59,867.58, for asbestos abatement, asbestos testing and monitoring, rerouting of existing conduit not part of the original scope (coordinated with ISD), removal and replacement of lead and oakum packing in existing roof drains, and changes to the schedule to avoid City staff discomfort due to the materials used the final flood coat installation. Therefore, total cost of the change orders exceeded the original contingency amount by $6,317.58. Project accounting is as follows: Carpet Removal and Installation: Original Budget + Contingency $378,350.00 Contract Award - $329,000.00 Change Order No. 1 -$ 30,704.30 Change Order No. 2 Time extension $0.00 Change Order No. 3 - $2,340.00 Change Order No. 4a - $1,323.92 Change Order No. 4b - $4,200.00 Change Order No. 5 - $21,299.36 Change Order No. 6 No cost repairs $0.00 Total Project Cost - $388,867.58 Original Budget + Contingency $378,350.00 Chance Order No. 4b covered by ISD $4.200.00 Budget Shortfall (appropriation needed) - $6,317.58 Staff now requests that City Council: 1) approve an amendment with J. Cab & Sons for $59,867.58, 2) accept the work as complete and 3) authorize the City Clerk to file a Notice of Completion with the County Recorder's Office. Please note that the final payment to the contractor will occur after the claim has been settled and the City Attorney has authorized us to release the retention. However, acceptance of the project is required in order to file a notice of Completion with the County Recorder. I 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: City Hall Roof Repairs Project No.: PW 13 -05 Contract No. 4426 Notice is hereby given pursuant to State of California Civil Code Section 3093 et seq that: 1. The undersigned is an officer of the owner of the interest stated below in the property hereinafter described. 2 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 City Engineer on May 27, 2015. The work done was: City Hall Roof Repairs. 6. On June 16, 2015, 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: J. Cab & Sons Roofing 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: El Segundo City Hall. 9. The street address of said property is: 350 Main St. El Segundo, CA. 90245 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 2015 at El Segundo, California. Stephanie Katsouleas Public Works Director R 270 EL SEGUNDO CITY COUNCIL AGENDA STATEMENT AGENDA DESCRIPTION: MEETING DATE: June 16, 2015 AGENDA HEADING: Consent Agenda Consideration and possible action to 1) award a standard Public Works Contract to Ramona, Inc. for Water Main Improvement at Virginia, Oak and Bayonne, Project No. PW15 -08; 2) award a standard Public Works Professional Services Agreement to AKM Consulting Engineers for construction inspection services; 3) approve an additional appropriation of $577,552.00 from Water Enterprise Fund for water main improvements. ProjectNo.PW15 -08 (Fiscal Impact: $1,527,552.00.) RECOMMENDED COUNCIL ACTION: Waive minor irregularity in the bid from Ramona, Inc. and authorize the City Manager to execute a standard Public Works Contract, in a form approved by the City Attorney, with Ramona, Inc. in the amount of $1,221,566.00 and approve an additional $183,235.00 for construction- related contingencies. 2. Authorize the City Manager to execute a standard Public Works Professional Services Agreement in a form as approved by the City Attorney with AKM Consulting Engineers in the amount of $112,751.00 for construction inspection and geotechnical (compaction) oversight and testing, and approve an additional $10,000.00 for related contingencies. 3. Approve an additional appropriation of $577,552.00 from the Water Enterprise Fund for water main improvements. 4. Alternatively, discuss and take other possible actions related to this item. ATTACHED SUPPORTING DOCUMENTS: Map of Project Area FISCAL IMPACT: Budget Adjustment Required Amount Budgeted: $950,000 Additional Appropriation: Yes $577,552.00 from Water EnterPrise Fund Account Number(s): 501- 400 - 7103 -8207 (Water Enterprise Fund, Water Main Repair) ORIGINATED BY: Lifan Xu, Principal Civil Engineer L - AnIN REVIEWED BY: Stephanie Katsouleas, Public W ks Director APPROVED BY: Greg Carpenter, City Manager-/ AND DISCUSSION: The City's water transmission and distribution system dates back to the 1920's. Staff regularly evaluates the conditions of the pipes to develop and prioritize a replacement schedule. A total of approximately 3,500 ft of water mains are scheduled for replacement in this project. Locations include: 271 • Virginia St., from Mariposa Ave. to Maple Ave., • Oak St., from Main St. to Bayonne St., • Bayonne St., from Maple Ave. to Palm Ave., These water mains have exceeded their useful life and are in need of replacement. Please note that staff prepared plans for and bid out work valued at more than that covered by the adopted budget given the timing of the work relative to next year's budget. Staff felt it prudent to advance some of the additional and soon to be scheduled priority water main repairs located in the upcoming slurry quadrant. There are sufficient funds in the water enterprise fund to cover the cost of this additional work. On April 21, 2015, City Council Adopted plans and specifications for the Water Main Improvement at Virginia, Oak and Bayonne (Project No. PW15 -08) and authorized staff to advertise the project for receipt of construction bids. The project was advertised at El Segundo Herald and other publications on April 23 and April 30. On May 26, 2015, the City Clerk received and opened four (4) bids as follows: 1. Ramona, Inc. $1,221, 566.00 (corrected amount) 2. MNR Construction, Inc. $1,313,670.00 (corrected amount) 3. Toro Enterprises, Inc. $1,321,236.00 4. J A Salazar Construction $1,391,090.00 The apparent low bidder, Ramona, Inc., made a minor typo error on one of its bid items, making the final actual bid amount off by a few hundred dollars off from the written amount. Despite the error, they were still the lowest responsible bidder. The second apparent low bidder, MNR Construction, Inc., also made a clerical error by adding up its bid total incorrectly. Neither of these errors changed the low bid order. Staff checked references and the contractor's license status. Ramona, Inc. has satisfactorily completed similar projects for other public agencies. The bid amount of $1,221,566.00 is below the engineering cost estimate of $1,350,000. Staff has utilized inspection and geotechnical services of AKM Consulting Engineers for several similar projects and finds them to be exceptional in their daily oversight and documentation during construction. Staff also verified that their rates typical of the market for this type of work. Staff therefore recommends that City Council: 1) Waive the minor irregularity in the bid from Ramona, Inc. and authorize the City Manager to execute a standard Public Works Contract, in a form approved by the City Attorney, with Ramona, Inc. in the amount of $1,221,566.00 and approve an additional $183,235.00 for construction - related contingencies. 2) Authorize the City Manager to execute a standard Public Works Professional Services Agreement in a form as approved by the City Attorney with AKM Consulting Engineers in the amount of $112,751.00 for construction inspection and geotechnical (compaction) oversight and testing, and approve an additional $10,000.00 for related contingencies. 3) Approve an additional appropriation of $577,552.00 from the Water Enterprise Fund for these water main improvements. Any unspent water fund will be returned to the Water Enterprise Fund. Staff estimates the following timeline for the project: 272 July, 2015 Mobilization Late July, 2015 Start Construction November, 2015 Complete Project /Closeout This work was identified and approved in FY 2014 /15budget as part of the City's approved Capital Improvement Program and will advance our ultimate goal to proactively replace the City's aging water infrastructure. 273 274 PW15 -08, Water Main Improvement at Virginia, Oak and Bayonne Project Location E L- -�—� � SYCAMORE � SYCAMORE I I I I I (SYCAMORE. CID o J J MAPLE MAPLE —MAPLE MAPLE— CID l y O' J 7 0 0 � as ii -- PALMI� PALM 4 > � J a - � g 3 MARIPOSA-MARIPOSA- MARIPOSA- [IJ111111N "'In MARIPOSA MARIPOSA J Z a PARIPOSA 275 276 EL SEGUNDO CITY COUNCIL AGENDA STATEMENT AGENDA DESCRIPTION: MEETING DATE: June 16, 2015 AGENDA HEADING: Consent Agenda Consideration and possible action to receive and file this report regarding emergency work to repair dwelling units at the Park Vista Senior Housing Facility due to water intrusion without the need for bidding in accordance with Public Contracts Code §§ 20168 and 22050 and El Segundo Municipal Code (`SSMC ")§ 1 -7 -12 and 1 -7A -4. (Fiscal Impact: $50,000.00) RECOMMENDED COUNCIL ACTION: (1) Receive and file this report regarding emergency work to repair dwelling units at the Park Vista Senior Housing Facility due to water intrusion without the need for bidding in accordance with Public Contracts Code §§ 20168 and 22050 and El Segundo Municipal Code ( "ESMC ")§ 1 -7 -12 and 1 -7A -4. (2) Alternatively, discuss and take other possible action related to this item. ATTACHED SUPPORTING DOCUMENTS: None FISCAL IMPACT: Included in Adopted Budget Amount Budgeted: $50,000.00 Additional Appropriation: No Account Number(s): 405- 400 - 0000 -6215 (Facilities Maintenance: Repairs and Maintenance) ORIGINATED BY: Stephanie Katsouleas, Director of Public Works REVIEWED BY: Gregg Kovacevich, Assistant Ci Attorney APPROVED BY: Greg Carpenter, City Manager BACKGROUND AND DISCUSSION: Emergency work to repair three dwelling units at the Park Vista Senior Housing Facility due to water intrusion caused by improperly sloped decks is still underway. Bid documents for the project were sent to three contractors on May 13, 2015 and two bids were received the following week on May 21, 2015. Staff and the consultant engineer reviewed the bids and will present the results, options and recommendations to the Park Vista Board in June. Public Contracts Code § 22050 (c) requires that the City Council receive updates at every regularly scheduled meeting until the emergency repair is completed. Therefore, staff recommends that City Council receive and file this report on the status of the emergency repair to address the water intrusion issues at Park Vista Senior Housing Facility. 277 278 EL SEGUNDO CITY COUNCIL AGENDA STATEMENT AGENDA DESCRIPTION: MEETING DATE: June 16, 2015 AGENDA HEADING: Consent Agenda Consideration and possible action regarding the formation of a Golf Course Design Task Force to advise Top Golf during the development phase of their proposed project at The Lakes at El Segundo. (Fiscal Impact: $0) RECOMMENDED COUNCIL ACTION: 1. Approve the formation of the Golf Course Design Task Force based on recommendations from the Golf Course Subcommittee 2. Alternatively, discuss and take other action related to this item. ATTACHED SUPPORTING DOCUMENTS: 1. Exhibit D of the Draft Due Diligence and Ground Lease Agreement - Golf Course and Premises Improvements FISCAL IMPACT: N/A Amount Budgeted: N/A Additional Appropriation: N/A Account Number(s): N/A ORIGINATED BY: Jesse Bobbett, Recreation Superintendent REVIEWED BY: Greg Carpenter, City Manager APPROVED BY: Greg Carpenter, City Manager BACKGROUND AND DISCUSSION: As part of the draft agreement between the City of El Segundo and CenterCal /TopGolf, Exhibit D (attached) sets forth the anticipated improvements and modifications to the golf course that are to be incorporated in a design for future consideration by the City Council. The Agreement calls for the City Council to appoint a task force to work with CenterCal together to develop the design. At their meeting on June 3, 2015 the Golf Subcommittee was asked for recommendations for possible membership. The subcommittee compiled a list of eight members they recommend for the new Design Committee based on their experience and knowledge within the local golf community. Their recommended committee members are: Josh Alpert, Good Swings Happen Al Keahi, EDAC Vice Chairman Dave Atkinson, Councilmember Danny Lane,Lakes Management Mike Donovan, Lakes Management Geraldine Mondy, Golf Subcommittee Mike Dugan, Councilmember Scott Roberts, Golf Professional John Gutt, El Segundo Golf Association President City Staff recommends approving the above members for the Golf Course Design Task Force. The group could begin working with Center Cal once the revised Due Diligence and Ground Lease Agreement is executed and could make a recommendation on the selection of a qualified golf course architect. is 279 280 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 Generally - 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 5hog AreStarter 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 278 281 110 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. • CafL6/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 011 CX(V11t practical, all ecluipaigit that is ir1 good repair at the oxisf i facility, not past its useful 1%e shall be utilized and installed at the new facili • 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. A 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 279 282 111 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. o 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 280 283 112 for any costs, not including design or construction costs, for certifying the Course Rating and Slope per USDA guidelines. • 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. • When possible, Lessee shall utilize existing and available poles and netting not otherwise repurposed by TopGolf project. • 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. 281 284 113 EL SEGUNDO CITY COUNCIL MEETING DATE: June 16, 2015 AGENDA STATEMENT AGENDA HEADING: Consent Agenda AGENDA DESCRIPTION: Consideration and possible action regarding 1) Approval of a resolution establishing a revised salary schedule for Senior Civil Engineer effective June 13, 2015. (Fiscal Impact FY 2014 -15: Included in the $260,400 approved by Council on June 2, 2015) RECOMMENDED COUNCIL ACTION: 1. Approve the attached resolution. 2. Alternatively, discuss and take other action related to this item. ATTACHED SUPPORTING DOCUMENTS: 1. Resolution FISCAL IMPACT: Amount Budgeted: Additional Appropriation: Account Number(s): ORIGINATED BY: Martha fjjkLa, Director of Human Resources REVIEWED BY: Martha Dijkstra, Director of Human Resources APPROVED BY: Greg Carpenter, City Manager,,Y, BACKGROUND AND DISCUSSION: On June 2, 2015, staff presented Council with a staff report recommending salary and benefit adjustments for Executive and Management /Confidential classifications. Among the recommended items approved by Council were salary increases for Management /Confidential positions effective October 1, 2014 and June 13, 2015. Staff inadvertently omitted the class of Senior Civil Engineer (At -Will) from the salary schedules presented to Council on June 2, 2015. The omission was due to the fact that this class was established in March 2015 so it was not captured when the October 1, 2014 retroactive increases were calculated. The omission was carried over when calculating increases for June 13, 2015. When the classification was established in March 2015, it was slotted into salary range 48M, therefore staff recommends revising this classification's salary to reflect the June 13, 2015 48M salary range, approved by Council on June 2, 2015, which is $7413.75 - $9011.46. Since the recruitment and selection process is ongoing, there is no need to adjust the salary range prior to June 13, 2015 as positions are expected to be filled in the very near future. 1 285 286 RESOLUTION NO. A RESOLUTION ESTABLISHING A REVISED SALARY RANGE FOR THE SENIOR CIVIL ENGINEER CLASSIFICATION, EFFECTIVE JUNE 13, 2015 The City Council of the City of El Segundo does resolve as follows: Section. l: The City Council approves the following basic hourly salary range: Step A Step B Step C Step D Step E Senior Civil Engineer (At -Will) Range 48M $7413.75 $7784.43 $8173.66 $8582.34 $9011.46 Section 2: The City Clerk is directed to certify the adoption of this Resolution; record this Resolution in the book of the City's resolutions; and make a minute of the adoption of the Resolution in the City Council's records and the minutes of this meeting. PASSED AND ADOPTED this 16th day of June, 2015 Suzanne Fuentes Mayor 287 CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS CITY OF EL SEGUNDO ) I, Tracy Weaver, City Clerk of the City of El Segundo, California, do hereby certify that the whole number of members of the City Council of said City is five; that the foregoing Resolution No. was duly passed and adopted by said City Council, approved and signed by the Mayor, and attested to by the City Clerk, all at a regular meeting of said Council held on the 16th day of June, 2015, and the same was so passed and adopted by the following vote: AYES: 2015. NOES: ABSENT: ABSTAIN: NOT PARTICIPATING: WITNESS MY HAND THE OFFICIAL SEAL OF SAID CITY this 16th day of June, Tracy Weaver, City Clerk of the City of El Segundo, California (SEAL) APPROVED AS TO FORM: Mark D. Hensley, City Attorney Karl H. Berger Assistant City Attorney EL SEGUNDO CITY COUNCIL MEETING DATE: June 2016, 2015 AGENDA ITEM STATEMENT AGENDA HEADING: New Business AGENDA DESCRIPTION: Consideration and possible action regarding the City of El Segundo's participation in the 2017 Tournament of Roses Parade. (Fiscal Impact: approximately $250,000) RECOMMENDED COUNCIL ACTION: Discuss and provide direction; and, 2. Alternatively, discuss and take other action related to this item. ATTACHED SUPPORTING DOCUMENTS: 1. Tournament of Roses Parade Information FISCAL IMPACT: $250,000 Amount Budgeted: $0 Additional Appropriation: FYI 5/16 & FY 16/17 Account Number(s): N/A PREPARED BY: Meredith Petit, Director of Recreation & Parks REVIEWED BY: Greg Carpenter, City Manager eLA APPROVED BY: Greg Carpenter, City Manage; BACKGROUND & DISCUSSION: At the regular City Council meeting held on May 5, 2015, Mayor Suzanne Fuentes requested staff to research participation into the 2017 Tournament of Roses Parade as a component of the upcoming City of El Segundo Centennial Celebration. Additionally, the City of El Segundo Economic Development Advisory Council has expressed interest in supporting the project. For entry into the 2017 Tournament of Roses Parade, the City would be required to submit an application prior to February 2016. Applications can be submitted at any time but official acceptance by the Tournament of Roses Committee would likely be extended in the early spring of 2016. If accepted, an entry fee of $5,500 must be paid within 30 -days to secure the space. Additionally, the application must provide information as to the City's float budget and funding source to indicate to the Tournament of Roses that the City will be able to provide a float of acceptable quality. On average, the design and construction of a float is $250,000. There are four approved float building companies that provide all- inclusive services such as design, construction, decorating, marketing /promotion, VIP experiences, etc. The float builder also provides the staff who operate the float on the day of the parade. Total float prices vary based on factors such as float dimensions, complexity, floral density, and animation features. Typically, the float builder will design based on the targeted budget. It is not too soon to begin design concepts with one or multiple float builders. The process consists of initial meetings to discuss possible themes of the float. Preliminary black- and - white conceptual sketches are then presented and the client provides feedback. The process could take multiple rounds of fine- tuning1 :• In February of each year, the float builders meet with the Tournament of Roses for an event called Theme Draft, when each designer can reserve the rights, to various concepts for the upcoming parade. The purpose of this process is to minimize redundancies and ensure a variety of themes are presented in the parade. It is ideal to have a designer selected and a concept in mind prior to this event so that the designer can secure the rights to the selected theme. The Tournament of Roses Parade only allows the entry organization to place their logo on the float. Therefore, floats cannot be used to advertise for corporations. If a sponsorship program was developed to help raise funds for the City's float, there are other benefits that can be offered such as VIP tickets to the parade and the Rose Bowl football game, VIP receptions and decorating parties, purchasing ads in the Parade Program, and selecting people to ride on the City's float in the parade. Oftentimes municipalities participating in the Rose Parade utilize citizen committees to help plan and select a design. A committee can also assist in fundraising efforts, promoting awareness, and engaging the community. As a component of the overall City of El Segundo Centennial Celebration, it is staff's recommendation to discuss the City's participation in the 2017 Tournament of Roses Parade during the upcoming Strategic Planning Session this July. The City Council can then discuss the entire Centennial Celebration plans and funding allocation. Because of the length and timing of the planning process, it is possible to allocate funds across two fiscal years, 2015/2016 and 2016/2017. 290 How do we enter a float in the Rose Parade? Any organization or company may complete an application and submit it to Tournament of Roses® Association; applicants become part of a pool from which invitations to participate are issued. When should we apply? We recommended that you apply 9 -12 months in advance of the parade What are the chances of being invited to participate? The Tournament tries to maintain a balance of corporate, civic, non - profit, and international entries. Depending on the year, the number and type of vacancies will vary. When are applicants officially invited to participate in the Parade? Official invitations are extended after new applications are reviewed by the Tournament's Executive Committee. Generally, invitations are extended in the spring, about eight months in advance of the Rose Parade. However, the Parade lineup is not considered complete until all invitations are issued and accepted. How many floats are in the Rose Parade? Approximately 45 floats participate in the Rose Parade each year. Television broadcast considerations and the start time of the Rose Bowl Game® require us to limit the number of participants. What does a float cost? Design and construction costs vary but generally start at about $250,000. Costs may be higher or lower depending on the sophistication of design, degree of animation, and varieties of floral materials. The Tournament considers floats regardless of budget. The mutually agreed -upon cost for a float is an arrangement between the participating organization /company and a Tournament of Roses - approved builder; the Tournament does not receive any of the funds allocated to the building of a float. Are there additional fees? A float participation fee ($16,500.00 for commercial entries, $5,500.00 for non - commercial entries) is not included in the builder costs and is paid to the Tournament of Roses after an applicants is invited to enter a float in the Rose Parade. Who actually builds the float? The majority of the floats are built by one of four Tournament of Roses - approved professional float builders in the Pasadena area. Once an organization /company is invited to participate, the float builders will reach out to the new participant to present their designs and capabilities. May a float represent a company's product or service? Floats are intended to be messages of goodwill offered by corporations and non - commercial entities. By long- standing custom, the Rose Parade seeks floral creativity and design ingenuity in its parade floats, while downplaying overt commercialism. Floats should relate to a broad, overall parade theme and prior to construction, the Tournament's design review committee approves each float design. What publicity does the Tournament of Roses provide? The Rose Parade and the Rose Bawl Garne are among the largest special events in the world, The TQUrnament's ,rear -round marketing and communicatlons department staff actively generates av,areness for the events in general and will collaborate with participants as needed to help rnaxcrnize potential wiedia exposure. 291. r • • — I..i4un•.,'f: �LA,-j .ir v uro r '] (�IY LihAi sTcT� .�TRiikSKY LINK TV-, 'AVERAGE COMBINED VALUES FROM ALL BROADCASTERS TOTAL PARADE PARTICIPANTS: 85 ufloa[s �Ean<Is PARADE SOCIAL MEDIA 39,896 WOMEN 65% LIKES MEN 35% 4% 5� } 2% toss 13% ■ F 35 -54 . F 15-34 ■ F 55, s M 35-54 tut 18 -311 M 55= Other OTHER: C)7,438 G)2,000 TOTAL PARADE ATTENDANCE: EST. 700,000 160,000 140,000 120,000 100,000 80,000 60,000 40,000 20,000 0 .Cw... ANCILLARY EVENT ATTENDANCE: 143,359 2% Fguestfest BandfesL . Post -Par ade )? Days) . Decc,Wt iE. Places A WVVW.TOURNAMENTOFROSES.COM TOTAL ANNUAL SESSIONS (1/03/2014- 1/04/2015) 2,392,350 TOTAL PARADE DAY SESSIONS 601 ,843 153,48.7 95,356 Mobile Desktop 63,244 i I 292 Tablet (02/13/15) QP�ADe V O &ga' .� ■� W 2; - � �ME N-� ` 2015 S TAT I S'T" I S PA,b fowl v rn �. m HOL�TDA PLAYOFF SEMIFINAL h Mu Ual csrern NIELSEN HOUSEHOLD RATING* 11 .8 NIELSEN HOUSEHOLD RATING 14.8 VIEWERSHIP - INDIVIDUALS 53.2M VIEWERSHIP - INDIVIDUALS 28.2M -HOUSEHOLDS 42.9M -HOUSEHOLDS 17.2M INTERNATIONAL VIEWERSHIP 28M • • — I..i4un•.,'f: �LA,-j .ir v uro r '] (�IY LihAi sTcT� .�TRiikSKY LINK TV-, 'AVERAGE COMBINED VALUES FROM ALL BROADCASTERS TOTAL PARADE PARTICIPANTS: 85 ufloa[s �Ean<Is PARADE SOCIAL MEDIA 39,896 WOMEN 65% LIKES MEN 35% 4% 5� } 2% toss 13% ■ F 35 -54 . F 15-34 ■ F 55, s M 35-54 tut 18 -311 M 55= Other OTHER: C)7,438 G)2,000 TOTAL PARADE ATTENDANCE: EST. 700,000 160,000 140,000 120,000 100,000 80,000 60,000 40,000 20,000 0 .Cw... ANCILLARY EVENT ATTENDANCE: 143,359 2% Fguestfest BandfesL . Post -Par ade )? Days) . Decc,Wt iE. Places A WVVW.TOURNAMENTOFROSES.COM TOTAL ANNUAL SESSIONS (1/03/2014- 1/04/2015) 2,392,350 TOTAL PARADE DAY SESSIONS 601 ,843 153,48.7 95,356 Mobile Desktop 63,244 i I 292 Tablet (02/13/15)