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2015 Jul 21 - CC PACKET
AGENDA EL SEGUNDO CITY COUNCIL COUNCIL CLAMBERS - 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, JULY 21, 2015 - 5:00 PM (NOTE: THE 5:00 PM MEETING HAS BEEN ADJOURNED TO 6:00 PM DUE TO LACK OF QUORUM) 5:00 P.M. SESSION CALL TO ORDER ROLL CALL PUBLIC COMMUNICATION — (Related to City Business Only — 5 minute limit per person, 30 minute limit total) Individuals who have received value of $50 or more to communicate to the City Council on behalf of another, and employees speaking on behalf of their employer, must so identify themselves prior to addressing the City Council. Failure to do so shall be a misdemeanor and punishable by a fine of $250. SPECIAL ORDER OF BUSINESS: CLOSED SESSION: The City Council may move into a closed session pursuant to applicable law, including the Brown Act (Government Code Section §54960, et sue.) for the purposes of conferring with the City's Real Property Negotiator, and /or conferring with the City Attorney on potential and /or existing litigation; and /or discussing matters covered under Government Code Section §54957 (Personnel); and /or conferring with the City's Labor Negotiators; as follows: CONFERENCE WITH LEGAL COUNSEL — EXISTING LITIGATION (Gov't Code §54956.9(d) (3): -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 (d)(4): -2- matter. DISCUSSION OF PERSONNEL MATTERS (Gov't Code §54957): -0- matter APPOINTMENT OF PUBLIC EMPLOYEE (Gov't. Code § 54957): -0- matter PUBLIC EMPLOYMENT (Gov't Code § 54957) -0- matter 2 2 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 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, JULY 21, 2015 - 7:00 P.M. 7:00 P.M. SESSION CALL TO ORDER INVOCATION — Father Alexi Smith, St. Andrew Russian Greek Catholic Church PLEDGE OF ALLEGIANCE — Council Member Dugan El 5 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 9 1. [CONTINUED ITEM #C2 FROM JULY 7, 2015 CITY COUNCIL MEETING] 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. 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 action related to this item. 2. Consideration and possible action regarding receiving an update with respect to the City's negotiations with CenterCal and Top Golf regarding the draft Due Diligence Lease Agreement that provides for the leasing of the driving range at the Lake's Golf Course to CenterCal and Top Golf for purposes of operating a Top Golf facility and the reconstruction of the golf course. (Fiscal Impact: None) Recommendation — 1) Consideration and possible action regarding receiving an update regarding the Agreement negotiations and provide feedback to City Manager and City Attorney as appropriate; 2) Alternatively, discuss and take other action related to this item. 3. Consideration and possible action to 1) review the proposed designs for the Richmond St. Rehabilitation Arterial Improvement Project between El Segundo Blvd. and Holly St., 2) provide direction to staff on possible revisions and 3) direct staff to proceed with preparation of construction plans and specifications. (Fiscal Impact: $800,000.00) Recommendation — 1) Review the proposed designs for the Richmond St. Rehabilitation Arterial Improvement Project; 2) Provide direction to staff on possible revisions to the proposed designs; 3) Direct staff to proceed with the preparation of construction plans and specifications inclusive of any design changes; 4) Alternatively, discuss and take other action related to this item. 51 7 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. 4. Warrant Numbers 3006734 through 3006895 on Register No. 19 in the total amount of $1,344,326.90 and Wire Transfers from 6/15/2015 through 7/5/2015 in the total amount of $2,597,993.00. 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. 5. Regular City Council Meeting Min_ utes of July 7, 2015. Recommendation — Approval. 6. Consideration and possible action to authorize the City Manager, or designee, to record the Notice of Completion accepting completion of work for twenty -three (23) homes related to Project RSI 14 -25 (the City's Residential Sound Insulation Program's Group 67). (Fiscal Impact: Final Contract Amount: $939,885.44 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 -25; 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. 7 7. Consideration and possible action to authorize the City Manager, or designee, to record the Notice of Completion accepting completion of work for twenty -one (21) homes related to Project RSI 14 -26 (the City's Residential Sound Insulation Program's Group 68). (Fiscal Impact: Final Contract Amount $455,397.84) 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 -26; 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. 8. Consideration and possible action to authorize an increase to Metron- Farnier, LLC's blanket purchase order from $100,000 to $130,000 for the purchase of water meters. (Fiscal Impact: None) Recommendation — 1) Authorize an increase of $30,000 to the blanket purchase order #71 -00209 to Metron - Farnier, LLC from $100,000 to $130,000 for the purchase of water meters; 2) Alternatively, discuss and take other action related to this item. 9. Consideration and possible action to authorize the City Manager to execute a contract with William Avery & Associates, Inc. in an amount not to exceed $41,800. Fiscal Impact: $41,800 Recommendation — 1) Authorize the City Manager to execute a contract with an executive search firm for purposes of recruiting a new Director of Finance and Fire Chief, to commence work on or about August 1, 2015; 2) Alternatively, discuss and take other action related to this item. 10. 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 §§ 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. 9 11. Consideration and possible action regarding authorizing the City Manager to enter into a one -year lease with a three one -year options with Davis & DeRosa Physicial Therapy, Inc., for the continuous use of approximately 1,620 square feet of space located at 333 Main Street to house the City of El Segundo's Residential Sound Insulation (RSI) Program Office. (Fiscal Impact: Approximately $80,000.00: $8,000.00 for FY2014 -2015 budget and $72,000.00 for FY2015 -2016 budget) Recommendation — 1) Authorize City Manager to enter into a lease agreement; 2) Alternatively, discuss and take other action related to this item. 12. Consideration and possible action regarding adopting of an ordinance to modify El Segundo Municipal Code Title 10, Chapter 5, Water Conservation. Fiscal Impact: None) Recommendation — 1) Waive second reading and adopt Ordinance No. 1509 amending ESMC Title 10, Chapter 5, Water Conservation; 2) Alternatively, discuss and take other action related to this item. 13. Consideration and possible action regarding approval of an amendment to the Robert Half International Inc. contract for temporary staffing in Building and Safety for License / Permit Specialist I. Fiscal Impact: $20,000.00 Contract Number: 4810 Recommendation — 1) Authorize City Manager to execute a contract amendment, in a form approved by the City Attorney, with Robert Half International Inc., for additional temporary staffing; 2) Alternatively, discuss and take other action related to this item. F. NEW BUSINESS 14. Consideration and possible action to adopt an ordinance updating the El Segundo Municipal Code amending Title 13 of the El Segundo Municipal Code by adding Chapter 18 to provide an expedited, streamlined permitting process for small residential rooftop solar systems. Fiscal Impact: None Recommendation — 1) Introduce and waive first reading of Ordinance No. , enacting Municipal Code amendments to provide an expedited, streamlined permitting process for small residential rooftop solar energy systems; 2) Alternatively, discuss and take other action related to this item. E 10 15. Consideration and possible action regarding potential amendments to the Downtown Specific Plan (DSP) regarding: (1) tinting or reflective glass on storefront windows; (2) signs for non - street front uses; (3) building height limit along street -side property lines; (4) design review process of projects relating to existing design review standards in the DSP; (5) parking requirements for Non - Profit Museums in the DSP area; and /or (6) parking and the Parking -In -Lieu Fee Program in the DSP and review and potential formulation of recommendations relating to parking issues in the DSP. (Fiscal Impact: None) Recommendation — 1) Directing staff to prepare an amendment to the DSP Section Vlll (Design Standards) regarding Tinting or Reflective Glass on Storefront Windows; 2) Directing staff to prepare an amendment to the DSP Section VIII (Design Standards) regarding Signs for Non - Street Front Uses; 3) Directing staff to prepare an amendment to the DSP Section VI (Development Standards) regarding building height along street -side property lines; 4) Directing staff to prepare an amendment to the DSP Sections V (Administration) and VIII (Design Standards) to establish a design review process and to define projects requiring design review relating to existing design review standards in the DSP; 5) Directing staff to prepare an amendment to the DSP Section VII (Parking) regarding parking requirements for Non - profit Museum uses; 6) Establishing a subcommittee to formulate potential recommendations regarding the preparation of amendments to parking standards in the DSP and /or the Parking In -Lieu Fee Program; 7) Alternatively, discuss and take other action related to this item. G. REPORTS — CITY MANAGER H. REPORTS — CITY ATTORNEY I. REPORTS — CITY CLERK J. REPORTS — CITY TREASURER K. REPORTS — CITY COUNCIL MEMBERS Council Member Fellhauer — Council Member Atkinson — 10 11 Council Member Dugan - Mayor Pro Tern Jacobson — Mayor Fuentes — PUBLIC COMMUNICATIONS — (Related to City Business Oniy — 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 se q.) 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: 7.157. 1 S TIME: NAME: r} � 11 12 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] 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 then subsequently withdrew the option for CenterCal to execute the Agreement. CenterCal on 2 April 28, 2015 sent a new communication to the City proposing new terms. On May 5, 2015, 1 39 13 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] 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 51h 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 40 14 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] 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: NIA Additional Appropriation: N/A Account Number(s): N/A ORIGINATED BY: Mark D. Hensley, City AtiOrx:cy , Karl H. Berger, Assistant C`it yf t iir -- 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 1 41 406 15 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] 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 Conmission in September and December 2012. D 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 ( �1��: �: t�izdrti. orglne��• �+/ ilist� lal��tr;�as.��s1y?h°ctvsll?_ 1 1�4r3��'I'a��tl I) I ). Posting all disclosable public communications regarding the Lakes matter on the City's website www.e1sc =undo.ot r do )ts /cii cicrk/docutneiits.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 effoit 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. 1 § 54950. ' § 54956,8 (emphasis added). 2 407 42 16 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] 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 dayss 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.6 Such a response must be ,approved by the legislative body in open session and be substantially in a form required by law,7 if the legislative body opts to undertake such a response, it removes the ability of a person to file a lawsuits 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. 3 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)). 6 § 54960.2(c). 7 Id. 8 Id. 43 408 17 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] Exhibit A October 1, 2013 and October 15, 2013 Letters 44 409 IN THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] R7^cfvED /a - i- 13 CITY CLERK'S OFFICE I Glty Manger's OifICd) October 1, 2013 OCT r W3 Via Personal Delivery Hon. BIII Fisher, Mayor RECEIVED Mr. Carl Jacobson, Mayor Pro Tom Me. Suzanne Fuentes Mr. Dave Atkinson Ms. Marie Fellhouer City Council Clay of El Segundo 350 Main Street, El Segundo, CA 90245 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 to to caution you that the El Segundo Ctty 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. E8CC Is abusing the "safe harbor" provlelons of Government Code Section 54058.8, which allow a limited exception to the general mandate of open meetings only "to grant authority to its negotiator regarding tho prlco 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 municipal golf course owned by the City of El Segundo. Although the stated purpose of such mootings, as noted can ttie relevant Agendas, was "discussion with Real Property 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 Identlfles the real property .-which the negotiations may concern and the person or persons with whom its negotiator may negotiate. Additionally, the relevant Agendas fall 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 privity with Top Golf, who will sublet from Centercal to operate a goB 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, Shaplro y, Clly Council of San Diagg, 96 Col. App. a 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 temps of payment. This situation Is analogous to Shapiro_ v. City Gouncll of San DIn2oo, 45 410 19 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] 88 Cal. App. 40' 904 (2002), where the Court of Appeal held that the Son Diego Council had violated the Brawn Act In including discussion of a vadety of "related leaves" in a series of closed session held to consult with its agent In real property negotletlons concarning a large redevelopment project to create a now 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 detelled disclosures should be required before closed seselons may be held to discuss a complex overall reel estate baead trensaction Is lnconslotent with the express statutory requirements of section 64948.8 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 interpretatlon of Ilia Brown Act In this respect, we would be lumina the Brown Act on Its head, by narrowly construing the open meeting requirements end broadly construing the statutory exceptions to It. That would bo incorrect. We do not denigrate the fmportant consideration of confldentlallly in negotiations. However. we bailovo that In this cage, the City Council is attempting to use the Brown Act as a shield against public dlsclosure of its consideration of Important public pollcy Issues, of the type that Are inevitably raised whenever ouch a Largo public redevelopment real astute beeed transaction Is contemplated. The Important policy consideration of the Brown Act, however, must be enforced, even where particular transactions do not tit neatly within Its statutory categories. Id. at $24. Mere, as In Shaolro, ESCC Is using closed sessions to shield Important development considerations from public vlew. The sheer number of closed sessions, In contrast to the single open session on the proposed lease, proves that ESCC Is shirking Ila duty to conduct open sessions on matters of public Interest that will eubstenUafly impact The Lakes future. indeed, ESCC has disclosed ralallvely nothing In open sosslons regarding Ito reletlonsltlp with Centercal, Centercal's rolallonship wlth Top Golf, proposed physical changes to the golf course, proposed physical changes to [lie driving range, price Increases, public programs, changes to the liquor license and more. Members of the publlc 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 reap onsibllltles 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: Considaration and pesslble action to direct staff to take steps necossary to seek Input from various City Committees regarding a potential agreament with Centercal Properties. LLC for enliancing the drlving range and (fining facilities at The Lakes Golf Course which would be operated by Top Golf. Thu agreement would be negotlated by (lie City Manager and City Attorney and presented for review and potential approval by tha 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 ectlon to direct Mr. Carpenter to enter into negotiations with Centercal regarding a lease of The takes. 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 proposers lease. It's just wrong. The significance of the misdescriptfon is mngnlfied by the fact that Ilrls wr,s the only open discussion on the proposed lease and therefore, it was Imperative that the ESCC accurately convoy aeries to the public of what ESCC Intended to do. Without such clear notice, those members of the public who might wall have attended the meating to address a proposed decision immediately to proceed with lease negotiations were misled into believing that there would be adequate opportunlifes to do ec later, at meetings of either the "City Committees," the C4 Council or both. The ESCC failed Its duties under the Brown Act and should be enjoined from proceeding further absent a material cure. 46 411 20 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] The EI Segundo City Coundl has thirty day& from recelpt of thls letter to provide me with an unoond(Qonal commitment to cease, desist from, end not repeat the praoticas noted above, compliant with Government Code Sectlon 54980,2, subdNIslon (c). Ito fallure to do so will eniltte me to flla an scion for dederatory judgment and Injunctive railof and for attorney's fees and costa, Respectfully, OV V 0&,j Debra V. Gblat (310) 489 7751 cdtegelstQvedzan.net 47 21 412 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] October 15, 2013 Via U.S. Moll Tracy Sherrill Weaver City Clerk City of El Segundo 300 Main Street, El Segundo, CA 90245 Hon. BIII Fisher, Mayor Mr. Carl Jacobson, Mayor Pro Tom Ms. Suzanne Fuentes Mr. Dave Atkinson Me. Marie Follhauer CITY U '' " FF1 CE 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 nctice Is to oautlon you that the El Segundo City Council (the "ESCC'] has vlolsted the Ralph M. Brawn Act (California Government Code Sao. 5405D et.seq.), which mandates open and publicized moetings of IDcal government at which the public may be present and comment on relevant matters. ESCC Is abusing the "safe harbor' provlalons of Government Code Section 54956,8, which allow a limned "ceptlon 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 opaciflc 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, ,tune 26, 2012 and July 17, 2012, the ESCC conducted closed sesslons for the stated purpose of discussions with Greg Carpenter, City Manager, concerning The Lakes, a rnuniclpat golf courso owned by the City of El Segundo. Although the stated purpose of such meetings, ae noted on the relevant Agendas, was "dlscussfon w3h Real Property Negollator", ESCC had not yet conducted a public session as required by Government Code Section 54958.8 as follows: However, prior to the closed session, the leglelative body of the local agency shall hold an open and public session In which it Identifies the real p'roperty...whlch the negotiations may concern and the person or persons with whom Its negotiator may negotiate. Addltlonally, the relevant Agendas fall 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 sesslons with Mr. Carpenter relating to Top Golf and Centemal 'Properties as "negotlating 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 erttertalnmant business at The Lakes. ESCC; was not negotiating a real property lease with Top Golf but rather consulting with Tap Goff regarding lease Issues, The Brown Act mandates that ESCC conduct any such consuftatfone In publlc meeting because the "safe harbor" provision pertains only to the proposed lessee on price and terms of payment. Conwitstions with ether partios on -related ls5ues' or `background Issues" are outside the scope of the exception. See, Shapiro v. City Council of San Dlugo, 96 Cal, App. 4 "' i104 (2002). 3. Conducting Serial Closed Sessions on Matters Outside Payment and Terms of Payment On eight separate ocoaslons, February 6, 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 48 413 22 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] sessions with Mr Carpenter relenting to the lease with Centercal properties as the negotlating party. The number of closed sose[one alone Is excessive and proves that the ESCC has trespassed beyond the "safe herbal" of price and terms of payment. This situation is analogous to 5hApiro . City Qouncll of San DIU0, 08 CAI. App, 4'h 004 (20D2), where the Court of Appeal hold that the San Olego Councli had vlofatod the Brown Act In inoluding discussion of ra variety of'related Issues" in a modes of closed session hold to oonsuit with Its agent In real property negotlaltone concemIng a large redevelopment project to create a new baseball park. The Fourth Dlefdct faulted the San Diego Councli's expansive Interpretation of the "safe harbor" as follows: We believe the City Council's view that no detailed dlsciaaursa should be required before closed sessions may be held to discuss a complex overall reel estate based transaction Is Inconsistent with the express statutory requirements of section 54848.8 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 tumfng the Brown Act on Its head, by narrowly coanslruing the open meeting requirements and broadly construing the statutory excepilone to It. That would be Incorrect. We do not denigrate the Important conslderstlon of confidentiality in negotlations. However, we believe that In this case, the City Councli is attempting to use the Brawn Act as a shield against public disclosure of fts 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 bQ enforced, oven where parftular transacliona do not fit neatly within its statutory categories. Id. at 824. Here, as In Shapiro, ESCC is using closed sessions to shlold Important development conelderadons from public view, The sheer number of closed sessions, In contrast to the single open session on the propoead lease, proves that ESCC Is shirking Ita duty to conduct open seaslons 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 Centorcal, Csntercal's relationship with Top Golf, proposed physical changea 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 he public responslblltdes 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 varloua City Committees regarding a potential agreemant with Centercal Properties, LLO for enhancing the driving range and dining facliitlee at The Lakes Golf Course which would be operated by Top Golf. The agreement would be negotiated by tho City Manager and City Attorney and presented for review and potential approval by the City Councli 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 Centereat 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 lease. Its Justwrong, The significance of the misdeacriptlon Is magnified by the fact that thla 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 no0ce, those members of the public who might well have attended the melting to address a proposed decision Immediately to proceed with lease negotiations were misled into believing that there would be adequate opportunities to do to later, at meetings of either the 'City Conamiiteas; the City Council or both. The ESCC felled tie duties under the Brown Act and should be enjoined from proceeding further absent a material cure. 49 414 23 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] The El Segundo CW Council has thkty days from "Ipt of this ledtsr to provide me with sn unmdrdonel oommlbnentto mass, dseldflom, and nrxt repast the prect]oes notad above, comptiMntWNh Gavemmsnt Code t3eollon 64990.2, subdMalon (c). Ito feflure tv do so Wil entl9e ms to fne an aaft for dsdayftry Judgment and lnjunWn tellef and for ettornWa, fast and oosle, R ©ap u9ly, (Debra V. (Wet ~ (310) 4897761 cftagels to ua tltan, not 415 24 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] Exhibit B Draft Response Letter 51 416 25 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] October 30, 2013 Elected OfFlclals: ere rr, ha Mayor Cart Jaca aen, Debra V. Geist cod Mayor Pro lam 121 16th St CounciW 9uarnna Furnlw, DawAlkbaon,mbDr Manhattan Beach, CA 90266 Counall Mombsr Marie Whourr, 7r. yWunselwMOmbrr Re: Letter dated October 15, 2013 CRY clot* Dear Ms, Geist: Appointed Officials: Greg Carpenter, Thank you for your letter dated October 15, 2013 (received by the City on City Manager Msr*D. Minn ay, October 17, 2013). As you are aware, that letter (the "October 15th Letter") CrlstoRindr, ay aiieges that the City Council violated the Ralph M. Brown Act and Chy7teaaurar constitutes a "cease and desist" letter in accordance with Government Code § 54960.2. Department Directors; Deborahoulhn, Specifically, the October 15th letter accuses the City Council of violating the MaKh. ukaW Brown Act on the following dates: June 19, 2012; June 25, 2012; July 17, KevinSmith, '°•, 2012; August 21, 2012; February 5, 2013; February 19, 2013; May 7, 2013; Mfg Chief August 6, 2013; August 20, 2013; 'Soptember 3, 2013; Debra erlphro n, re SamLaarySrtvl °~ September 17 2013; and October 1, 2013. In sum, the October 15th letter Buildnos fib, alleges that the City Council's actions relating to the municipal golf course MI'°Poll ecelrr known as "the Lakes" violated the Brown Act as follows: (1) failure to Stephanie Kateoulras, Publlaworks appoint real ,property negotiators in open session; (2) incorrect agenda Ao R�= m;,n°s`P.nra 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.alsegundo.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, Cal fornle 90245.3813 Phone (310) 524-2300 Fax (310) 640 -0489 417 52 26 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] of a [slc] 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 jurisdlctlon of the city council." The City Council believes this would include (at a minimum) initial negotlatlons regarding potentially leasing the Lakes. As pravlously noted, however, these matters are time barred In any event. Third, as explained below, it is plain that the Clty 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 Cit /s efforts at encouraging public discourse regarding'thls 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, C811fornia .90245 -3813 Phone (310)524 -2300 Fax (310) 640.0489 418 53 27 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] 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 ( eis(-cgundo. orlifsiewsldist )iaynews.ast)?Newsi D- 1149 &Tarred D =1). ■ The City has posted and (continues to post) all disclosable public communications regarding the Lakes matter on the City's website (www.ei seq u ndo.org/deWs/cityclerk/dOOLIMelItS. asp). 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- to[2golf /; www.dailybreeze,col'n/20121105/ local- goifers- balk- at- propc�seo•:changes -to- the- lakes- in- el- segundp_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 IV 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 419 54 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] 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 Et 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. Nate that the El Segundo City Council may rescind this commitment only by a majority vote of Its membershlp 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 some 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 (390)524 -2300 Fax (310) 640.0489 420 55 29 30 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] r i May 8, 2015 Elected Officials: Debra V. Geist Suzanne aaentes, 121 16th St Carl Mayor Pro Tom Manhattan Beach, CA 90266 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 Crisis 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 Mark D. Hensley, p y lrty ChyAtlomay 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 Curren, 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 Dljksim, Human Resources accordance with the Ralph M. Brown Act. Kevin Smith, Fire Chief Debra nary er Please note that the City eaffirms its position as set forth in the Letter: this matter is Library Services y p Sam Lee, thoroughly transparent; allegations regarding Brown Act violations are without merit. Buildings Safety Moreover, the public continues to have a vibrant dialogue regarding the City Council's Mitch Tavera, Police Chief actions as to the Lakes. Siephante I(atsouleas, Public Works Meredith o Note that a co g p Integrity Recreation 8 Parks copy of this letter is being provided to the Public Inte ri Unit of the Los Angeles County District Attorney's office in accordance with Government Code § 54960.2(e). www.eisegundo.org Very trbly�Ours, I f 0— l Fri. l3 - er Asslslan( (yity Attorney c: District Attorney City Council City Manager 350 Main Street, EI Segundo, California 90245 -3813 Phone (310)524.2300 Fax (310) 640.0489 57 31 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] �. ^•'? � ,rte r 1St � C i3 32 October 30, 2013 Elected Offlclals: B 11 Fish or, NO- C•rIJaPobson, Debra V. Geist MsyorProTom suienne Fitent••, 121 16th St °ulnoon,m6p DavP,{fkrnsan, Manhattan Beach, CA 90266 CPUn°ff krwnber Marls fsllhausr, Couenvvr, •r Tracy Waew Re: Letter dated October 15, 2013 CO crark Dear Ms. Geist: Appointed Officials: Orly Carpen r, Thank you for your letter dated October 15, 2013 (received by the City on Mark D.HensfW, October 17, 2013). As you are aware, that letter (the "October 15th Letter ") Crisis `s, d ,, alleges that the City Council vlolated the Ralph M. Brown Act and CiW Treasurer constitutes a "'cease and desist" letter in accordance with Government Code § 54960,2. Department Directors: Deborah no$/an, i Specifically, the October 15th letter accuses the City COUncll of violating the M. haDQkay. HumanRwouro•s Brawn Act on the following dates: June 19, 2012; June 25, 2012; July 17, Kevin f/r0 CAhI 2012; August 21, 2012; February 5, 2013; February 19 2013; May 7 2013; � y rmHh, Doblearfghtcn, > > 1 August 6, 2013; August 20, 2013, September 3, 2013; lft+rary5 °Nr`u SAIn LPa, ''. September 17, 2013; and October 1, 2013. In sum, the October 15th letter Building ::tr Mlt°Pi;�:char alleges that the City Council's actions relating to the municipal golf course s` ° "Pnaicwortr known as "the Lakes" violated the Brown Act as follows: (1) failure to RobertCamm /nps, appoint pP real property negotiators in open session; (2) incorrect agenda Recreation AParks 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 fime- 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 161h 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, California 90245 -3813 Phone (310)524 -2300 Fax (310) 640.0489 417 59 32 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] 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 publledlscourse 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, Fi Segundo, Callfornia •90245 -3813 Phone (310)524 -2300 Fax (3117) 840.0489 418 .� 33 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] 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. a The City posted the PowerpointO presentation, draft' schematics, and other matters on the City's website (elsegundo,org/news /d isolavnews.as p7�, NewslD= 1149 &Targeet ID =1,). The City has posted and (continues to post) all disclosable public communications regarding the Lakes matter on the City's website (www.else und,o,or /de is /cit clerk/docuiiients.as ). 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 medla coverage (see e.g., www.easyrea(Jern(.,ws.com /74699 /residents- assail- tar_golf /; www.dailvbreeze,corii/20121105 / local - golfers balk -at -t ro osed -chap es-to- the - lakes - in- el- sequndo- 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 1V «' 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, Fl Segundo, California 90245 -3813 Phone (310)524 -2300 Fax (310) 640.0489 61 419 0 THE JULY 21, 2015 CITY COUNCIL MEETING AGENDA ITEM #1 IS [CONTINUED ITEM #2 FROM THE JUNE 16TH AND JULY 7TH CITY COUNCIL MEETINGS] 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 EI 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, seat 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 80245.3813 Phone (310)524 -2300 Fax (310) 640 -0489 420 62 35 3 [City Comments 7/17/ 20151 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 , 204-2015 TABLE OF CONTENTS Page Section1. Demise ............................................ ............................... 2 Section 2. Lease Term ....................................... ............................... 2 Section3. Rent ............................................... ............................... 3 Section4. Use ................................................ ............................... 4 Section 5. Due Diligence; Condition of Premises ....... ............................... 5 Section6. Liens .............................................. ............................... 11 Section 7. Utilities, Taxes, and Other Charges .......... ............................... 12 Section 8. Insurance ......................................... ............................... 14 Section 9. Lessor's Right to Perform Lessee's Covenants ........................... 16 Section 10. Compliance with Legal Requirements ...... ............................... 16 Section 11. Operation, Repairs and Maintenance ........ ............................... 19 Section 12. Development of the Golf Course Premises; Premises Improvements. 20 Section 13. Title to Improvements ......................... ............................... 22 Section 14. No Waste ......................................... ............................... 22 Section 15. Inspection and Access .......................... ............................... 22 Section 16. Lessor's and Lessee's Exculpation and Indemnity ....................... 22 Section 17. Condemnation .................................. ............................... 24 Section 18. Assignment and Sublease ..................... ............................... 26 Section 19. Lessor Default; Remedies .................... ............................... 28 Section 20. Lessee Default; Remedies .................... ............................... 28 Section 21. No Abatement of Rent; Encroachments .... ............................... 30 Section 22. Leasehold Mortgages .......................... ............................... 31 Section 23. Lessor's Right to Encumber .................. ............................... 33 Section 24. Nonmerger ...................................... ............................... 34 Section 25. Quiet Enjoyment ............................... ............................... 34 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 Section31. Notices ........................................... ............................... 35 Section32. Venue ............................................ ............................... 38 Section 33. Entire Agreement ............................... ............................... 38 Section 34. Applicable Law ................................. ............................... 39 Section 35. License Agreement ............................ ............................... 39 Section 36. Late Charge ........._ ........................... ............................... 39 Section 37. Nonwaiver ...................................... ............................... 39 Section 38. Brokerage ...................................... ............................... 40 Section 39. Miscellaneous Provisions .................... ............................... 40 Section 40. Covenants to Bind and Benefit Parties ..... ............................... 40 Section 41. Captions and Table of Contents ............. ............................... 40 Section 42. [Intentionally Omitted] ....................... ............................... 40 Section 43. Hazardous Materials ....................... ............................... 41 Section 44. Counterparts ................................... ............................... 41 Section 45. Consent and Approval Rights ............... ............................... 41 Section 46. Prevailing Wages ............................. ............................... 41 Section 47. Golf Course ................................... ............................... 41 it DUE DILIGENCE AND GROUND LEASE AGREEMENT ( "LEASE ") Date: , 2015 (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 Gel4TopGolf International, Inc. a Corporation Top GelDelaware corporation ("Top Golf Top G opgolf Guarantor" - "Tep r l fTo . 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 as Exhibit "B -1" is a current-preliminary 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" Formatted: Underline attached hereto and by this reference incorporated herein (the "License Agreement "); and, B. Whereas subject to all of the Conditions Precedent and other terms and conditions of this Lease, Lessor desires to lease the Premises to Lessee and Lessee desires to lease the Premises from Lessor and to sublease the Premises to TopGolf USA El Segundo LLC, a Delaware limited liability company ( "Topgolf El Segundo ") for the purpose of operating a commercial driving range, full service restaurant, clubhouse, and event space (herein called the "Sublease ") 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; Formatted: underline and, D. Now Therefore Lessor and Lessee enter into this Lease based on the terms and conditions hereinafter set forth. For purposes of this Lease, Topgolf Guarantor and To opg if El Segundo are sometimes collectively referenced as "Top2olf '). TERMS Section 1. Demise Lessor and Lessee hereby enter into this Lease for purposes of allowing: Lessee to perform due diligence on the Property; and to provide an opportunity for the parties to potentially satisfy the Conditions Precedent. Upon satisfaction of the Conditions Precedent Lessor shall lease the Premises to Lessee, and Lessee shall lease the Premises from Lessor, upon the terms and conditions set forth in this Lease. Section 2. Lease Term 2.1 The "Basic Term" of this Lease shall begin when all of the Conditions Precedent have been satisfied and Lessee has notified Lessor that it desires to have this Lease become effective as provided in Section 5.4 hereof ( "Premises Turnover Date ") and shall end on the twentieth (20th) anniversary of the Premises Turnover Date. The Basic Term shall also be referred to herein as the "Initial Term ". The parties agree to execute and record a memorandum of an addendum to this Lease setting forth the Premises Turnover Date. While the terms "Lease ", "Lessor" and "Lessee" are used throughout this agreement/Lease, the Lessee shall not be deemed to have a leasehold interest in the Premises until the Premises Turnover Date. On the Premises Turnover Date, Lessor shall deliver to Lessee, in conformance with all applicable laws, and except as otherwise explicitly provided herein (:neluding without l fnit do the Pefmitted Exceptions and the Parking r : ° °' 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 n° fmitt °a Exceptions ( which ineludesthe Parking License, the License Agreement and the Par-king Lieense and matters of record Permitted Exceptions as ~efleet°ashown on Exhibit !G " _ 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; (each, an "Option Period "), from the date upon which such term would otherwise expire, provided that Lessee shall be entitled to exercise an eptienOption Period 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 eptieneption Period to extend this Lease, this Lease Error! Unknown document property name. Formatted: Font: Bold Formatted: Font: Bold shall automatically be extended for an additional five (5) year term. Each such extension shall be upon and subject to the same terms, covenants and conditions as those herein specified except that Lessee may not again exercise any previously exercised option under this section. 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 Hundred Fifty Dollars ($43,750) per month ($525,000 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: (i) for each calendar year during the term of this Lease, an amount equal to three percent (3 %) of the gross reeeipts for-Gross Receipts from all beverages (alcoholic and non- alcoholic) sold on the Premises during the applicable calendar year ( "Variable Rent "); 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 Re ^ he-r_e u ^a°° Ma!� be satisfied by a" pefsen or entity making pa�,ment of Fixed -Rent Aer A-0heer slanis to Lessof as herein after- provided-., Variable Rent and other sums hereunder may be satisfied by any person or entity making payment of Fixed Rent, Variable Rent or other sums to Lessor as hereinafter provided. The term "Gross Receipts" wherever used in this Lease shall mean the aggreizate amount of sales (whether for cash, on credit or otherwise) of all alcoholic and non - alcoholic beverages made and rendered on the Premises in connection with the business operation conducted on the Premises, but shall not include any federal, state, municipal or other sales, value added or retailer's excise taxes paid or accrued„ regardless of whether such taxes are collected from customers or absorbed , sales to employees, complimentary sales, donations for charitable events, discounts afforded customers from the redemption of coupons, fees paid to credit card issuers and processors, bulk and/or intercompany transfers of inventory (provided no such transfer is made to avoid liabilitv to Variable Rent). or alcohol beverage license fees (if anv). Within one hundred (120) days after the end of each calendar year following the Variable Rent Commencement Date (defined in Section 3.2 below), Lessee shall deliver to Landlord a written statement setting forth the amount of Gross Receipts for the preceding calendar} ear. Simultaneously with the delivery of such statement, Lessee shall pay to Landlord the Variable Rent shown by such statement to be then due and owing. In computing the Variable Rent for the 3 Error! Unknown document property name. first calendar year following the Variable Rent Commencement Date, if such calendar year shall contain less than 365 days, then the Variable Rent shall be multiplied by fraction, the numerator of which shall be the number of days in such shorter calendar year, and the denominator of which shall be 365. In the event that the Lessee exercises one or more Option Periods, the Fixed Rent shall be subject to a potential additional increase commencing on the twenty -first, thirty -first and forty- first anniversary from the Fixed Rent Commencement Date. Starting one year prior to these anniversary dates, the Lessor and Lessee shall meet and discuss whether the Fixed Rent amount is fair and reasonable based upon economic factors, including but not limited to the consumer price index changes and real property values and rental rates. The parties shall have ninety days to conduct such discussion and attempt to agree on whether to increase the Fixed Rent and the amount of the increase and amend this Lease to reflect such increase if applicable. In the event that the parties cannot agree on whether to increase the amount of the Fixed Rent or the amount of the increase, then each party shall within ninety (90) days have an appraisal regarding the fair market rent that is prepared by an MAI appraiser and submit the appraisals to an independent MAI appraiser selected within the same ninety (90) day period jointly by the parties' two appraisers. The independent appraiser shall make a determination as to which appraisal submitted by the parties is closest to the fair market rent which shall then become the Fixed Rent commencing on the applicable anniversary date subject to the increases set forth in Section 3.3. The independent appraiser's fees and costs shall initially be split equally between the parties. The party whose appraisal is chosen by the independent appraiser as being the new Fixed Rent shall be reimbursed for its portion of the costs and fees of the independent appraiser as well as the costs and fees of its own appraiser .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 (ilthe date that the Premises opens to the public for business or ii ten (10) months following the Premises Turnover Date, subject to €arse majettreForce Majeure as defined in Section 30 and delays caused by Lessor (the "Fixed Rent Commencement Date "). All Rent (other than Variable 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 pay Variable Rent shall commence on the seeend anniversan,, erthe Premises Tth-neverDaate. The Variable Rent payment. Within sixty day hird anniversary of the Fixed Rent Commencement Date ( "Variable Rent Commencement Date "). Within ninety days of the termination of this Lease, Lessee shall pay to Lessor all Variable Rent payments owed to the Lessor based upon the payments being made Error! Unknown document property name. in arrears. This agreement shall not be construed as ig ving Lessor any partnership or other interest in Lessee's or Topgolf s business. It is understood and agreed by Lessor that there has been no representation of any kind whatsoever made by Lessee or Topgolf as to the amount of Gross Receipts which may or shall be made from the Premises during anyyear of the term of this Lease. 3.3 The Fixed Rent shall, for the first five (5)_years following the Fixed Rent Commencement Date, increase at the end of eaeh yearcommencement of Years 2, 3, 4 and 5 by two percent (2 %) and for—at the commencement of each five -year period thereafter (i.e., Year 6, Year 11, Year 16), the Fixed Rent shall increase by ten percent (10%x}: %) (which shall include any Option Periods that may be exercised by Tenant). 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 TOPGO! Topgolf driving range, restaurant, bar, lounge, grill and event space, that is similar with regard to the current operations of that certain existing TepFielfTopgolf facility located at 2700 Esperanza Crossing, Austin, Texas 78758 and is generally consistent with regard to its construction with those renderings and descriptions attached hereto as Exhibits "D" and "G" and by this reference 5 Error! Unknown document property name. incorporated herein (the "Prototype Facility "), including a driving range and related teaching facilities and both indoor and outdoor cafe / bar / grill facilities serving alcoholic beverages, and meeting and banquet facilities, also serving alcoholic beverages (referred to herein as a '74VGolffopgolf 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 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 Error! Unknown document property name. 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. — Except with respect to provisions that expressly survive the termination of this Agreement, upon expiration of the Due Diligence Period (which shall not be extended under in any circumstance by Force Majure) all of the rights and obligations of the parties hereunder shall terminate and each party represents and warrants that it understand and agrees that it shall have no right to file a legal or equitable action against the other party if the Conditions Precedent are not satisfied during the Due Diligence Period. 5.2 Cooperation and Entry Notice. 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. 5.23 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. 7 Error! Unknown document property name. The Preliminary Report and Underlying Documents shall hereinafter sometimes be collectively referred to as the "Title Documents ". Lessee shall have the right to object to any exceptions contained in the Preliminary Report; except those set forth on Exhibit E, 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 be attached to this Lease as an addendum to Exhibit "E" as the "Permitted Exceptions "). Notwithstanding the Formatted: Font: Bold 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 Error! Unknown document property name. and shall cause any person performing work or investigation on the Premises on behalf of Lessee to maintain a policy of comprehensive general liability insurance with premiums fully paid, issued by an insurance company reasonably acceptable to Lessee in an amount not less than $2,000,000.00 to insure the risks covered by the indemnity provided above, which policy shall name the Indemnified Parties as insureds. The insurance shall not act as a limit on Lessee's Liability. This indemnity shall survive any termination or expiration of this Lease. Notwithstanding any other provision in this Lease, in the event that the Conditions Precedent are not satisfied and Lessee does not take possession of the Premises, then Lessee shall return the Golf Course and Premises to substantially their same condition as they existed prior to the Commencement Date. 5.4 The following shall be conditions precedent to the Premises Turnover Date and commencement of the Basic Term hereunder (items (i) through (xiii) shall be collectively referred to as the "Conditions Precedent "): (i) (A) Lessee filed an application within ninety (90) days of the Commencement Date for the Required Project Entitlements which Required Project Entitlements the 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 all zoning and building and safety laws and regulations, 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; the City shall be a third party beneficiary to the agreements between the Lessee and the architects and design professional responsible for preparing the Plans for the Golf Course and Premises Improvements; (iii) Lessee has entered into construction contracts consistent with this Lease, for the completion of the Golf Course Improvements on Exhibit "D" hereto, and and TepGolf qo olf has- entered into construction contracts consistent with this Lease, for the completion of the Premises Improvements as described and depicted on Exhibit "B -1" hereto but such shall not relieve Lessee as being obligated for completing such improvements, (iv) Lessee has entered into a su'eSublease of the Premises with e ler-ed into sublease With - r,,.,r_,.iF r rc A Topgolf El Segundo, Formatted: Font color: Black that requires T-e�g og_lf 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 Error! Unknown document property name. foregoing thirty day period during which this Condition Precedent may be satisfied by delivery of written notice to Lessor setting forth the time period of any such extension(s) but in no event shall the initial thirty (30) day period and any extension thereto exceed the initial twelve month portion of the Due Diligence Period set forth in Section 5.1, plus, if applicable, the sixty day (60) day extension period); however, such approval byfrom Chevron shallmay not plaseim ose any obligations ^^ °ors on the City or on the Property that do not etiffently ° i itbut mu place obligations on the Lessee during the terms of this Lease which arise from Lessee's use of the Premises; (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 Top GallTopgolf 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 Top CellTopgolf Guarantee. In the event that despite Lessor's efforts as set forth above, the financial review of the CenterCal Guarantor and the Top Gol1To og_lf 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 Top GelfTopgolf 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 Top CellTop og_lf 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 JExhibits_�A-1" and "A-2" for Lessor's aMroval, (xiii) 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, (xiv) _Lessee shall depesited deposit four hundred thousand dollars ($400,000) into a speeial fund ewffeaan escrow account with the Title Company ( "Escrow Holder ") and maintained by -- the- Gityentered into an escrow agreement with Lessor and Escrow Holder solely for the purposespurpose of petentiially funding a portion of the cost to purchase and install lights on the golf course on the Property for purposesthe purpose of allowing golf to be played on the golf course during twilight and after sunset hours. The escrow agreement shall provide that the City shall have up to ten (10) years to install lights on the golf course and that if such is not had occurred within ten (10) years that the funds shall be returned to the Lessee. 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 10 Error! Unknown document property name. Formatted: Font: Bold Formatted: Font: Bold Formatted: Font: Bold the event that such parking study reveals that the parking requirements for the Golf Course and the Premises require an adjustment of the total number of parking spaces needed for the Golf Course or that providing Lessor with thirty (30) exclusive parking spaces during the Golf Course's hours of operation as described in clause (x) hereof is incompatible with the Permitted Use and Lessor's use of the Golf Course, then prior to the end of the Due Diligence Period, the parties shall work together to modify the Parking License (and the number of parking spaces and exclusive parking spaces granted thereunder) in such a manner so as to be compatible with the Permitted Use and the Lessor's operation of the Golf Course. 5.5 Items (vi), (vii) and (viii) of Section 5.4 shall be collectively referred to as the "Preliminary Conditions Precedent =_ If, on or before the expiration of the time periods set forth for any of the Preliminary Conditions Precedent, Lessee shall determine in its sole and absolute discretion that any of the Preliminary Conditions Precedent will not be satisfied, then Lessee may notify Lessor of such determination at any time before or within ten (10) days after the expiration of such applicable time period that it has elected to terminate this Lease. With respect to the Preliminary Conditions Precedent set forth in items (vi) and (viii) above, if, on or before the expiration of the time periods set forth in items (vi) and (viii) above Lessor shall determine in its sole and absolute discretion that items (vi) and (viii) will not be satisfied within the applicable time period, then Lessor may notify Lessee of such determination at any time before or within ten (10) days after the expiration of such applicable time period that it has elected to terminate this Lease. Additionally, if Lessee does not file its application for the Required Project Entitlements within the time period set forth in 5.4 (i)(A), then unless the parties agree to extend the time period in writing, this Lease shall terminate except those provisions that expressly survive a termination of this Lease. If this Lease is not so terminated by either Lessee or Lessor, then Lessee shall continue with its Investigation and shall have the right to terminate this Lease as set forth herein, including without limitation, the Conditions Precedent, and Lessor shall have also have the right to terminate this Lease by notice to Lessee if the Conditions Precedent are not satisfied within the Due Diligence Period; Lessee may terminate this Lease for any reason at any time in its sole and absolute discretion during the Due Diligence Period by notifying Lessor of such determination (the "Due Diligence Termination Notice "), whereupon any termination by Lessor or Lessee of 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 Top Ga44Ta0 _ og_lf 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 Top 6e1 lbw og_lf 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 11 Error! Unknown document property name. written notice of the withdrawal of their Guaranty then this Lease shall be deemed terminated and the parties shall have no further obligations under this Lease except those that expressly survive the termination of this Lease. The Due Diligence Acceptance Notice shall be deemed to be a confirmation from Lessee that the parties have entered into the sub - leases of the Premises further described in clause (iv) of Section 5.4 hereof. In the event that Lessee shall fail to deliver either the Due Diligence Termination Notice or the Due Diligence Acceptance Notice to Lessor on or before 5:00 p.m. (Pacific time) on the date that is the tenth business day following the expiration of the Due Diligence Period then this Lease shall expire and the obligations of the parties hereunder shall terminate (and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive a termination of this Lease). In addition to the foregoing, if, on or before the expiration of the Due Diligence Period the Conditions Precedent have not been satisfied or the City does not approve of the Required Project Entitlements, then this Lease and the obligations of the parties hereunder shall terminate and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive a termination of this Lease. It is expressly understood that the City is not committing to issuance of the Required Project Entitlements, including the CEQA determination or that the Conditions Precedent shall otherwise be satisfied by executing this Lease as such are subject to a separate discretionary land use entitlement processes, including public hearings, and/or are outside of the City's control and/or are, as applicable, subject to the approval of the City. if the . ubli.^ he i ^R^ for- the Required Prejeet Entitlements are not eemmeneed or eempleted within the Due Diligenee Period for whatseever- reason, sueh shall inot extend the Due Diligenee Period and the City shall ha-ve no liability to any p", for- stieh. Within five (5) business days of the delivery by Lessee to Lessor of the Acceptance Notice, so long as neither the Top Gelff q �olf 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 Top Gelffqpgolf Guarantor and Centercal Guarantor shall have no right to terminate or diminish their obligations under their respective guarantees following the Premises Turnover Date through the time that the Golf Course Improvements and the Premises Improvements are completed and a certificate of occupancy has been issued for the Golf Course and the Premises, except for termination due to a material default of this Lease by Lessor that Lessor has not remedied after being notified of the default and afforded the opportunity to cure it as provided in Section 19. Notwithstanding the foregoing, if, during construction of the Golf Course Improvements or the Premises Improvements, Lessee discovers that due to the discovery 12 Error! Unknown document property name. of Hazardous Substances (as defined in Section 42) on or under the Golf Course or Premises after the Turnover Date which: (i) could not have not been reasonably discovered by Lessee as part of its investigation of the Premises and Golf Course; or (ii) were not caused by Lessee, its agents, contractors, employees, tenants, occupants or invitees or otherwise resulting from Lessee's use of the Premises; and Lessee is not able to construct its contemplated Premises Improvements in accordance with desired or approved plans, site plans and the Required Project Entitlements, Lessee shall be obligated to return the Golf Course and Premises to the same or better condition, including all improvements that existed thereon, they were in prior to the Premises Turnover Date and terminate this Lease and the parties shall have no further rights or obligations under this Lease except as expressly set forth herein. 5.7 Upon any termination of this Lease pursuant to this Section 5, and provided that Lessor is not in default of any material provision hereunder, Lessee shall deliver to Lessor, within ten (10) days of such termination and without any representation or warranty whatsoever as to the truth, accuracy or completeness of such information and Lessor shall rely on such information at Lessor's sole risk and expense, originals or copies of all studies, reports, maps, documents and other material obtained by Lessee from third parties as part of Lessee's Investigation that are in Lessee's possession and that Lessee is not expressly prohibited from providing to Lessor. 5.8 All those provisions of this Section 5 whose full performance are not accomplished prior to any termination of this Lease shall survive such termination to allow such performance within a reasonable time. However, this provision shall not extend the Due Diligence Period, provide additional time for satisfying the Conditions Precedent or in any way result in a leasehold or other possessory interest to be created in the Lessee or any other party with respect to the Premises or the Property. Section 6. Liens 6.1 Except as otherwise specifically provided in this Lease, Lessee shall have no power to do any act or to make any contract that may create or be the foundation for any lien, mortgage, or other encumbrance on the reversion or other estate of Lessor, or on any interest of Lessor in the Property. 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 13 Error! Unknown document property name. obligations under this Section 6.2 during any such period of postponement, provided such title insurance is provided within the aforesaid sixty (60) day period, at Lessee's expense. 6.3 Subject to Section 12, unless otherwise set forth to the contrary herein, nothing in this Lease shall be deemed to be, or be construed in any way as constituting, the consent or request of Lessor, express or implied, by inference or otherwise, to any person, firm, or corporation for the performance of any labor or the furnishing of any materials for any construction, rebuilding, alteration, or repair of or to the Property or to any Golf Course Improvements or Premises Improvements, or as giving Lessee any right, power, or authority to contract for or permit the rendering of any services or the furnishing of any materials that might in any way give rise to the right to file any lien against Lessor's interest in the Property or against Lessor's interest, if any, in the Golf Course Improvements or Premises Improvements. Lessee is not intended to be an agent of Lessor for the construction of any Golf Course Improvements or Premises Improvements on the Property. Lessor shall have the right to post and keep posted at all reasonable times on the Property and on any Golf Course Improvements or Premises Improvements, any notices that Lessor shall be required to post for the protection of Lessor, the Property, and of the Golf Course Improvements or Premises Improvements from any such lien. The foregoing shall not be construed to diminish or vitiate any rights of Lessee in this Lease to construct, alter, or add to any Golf Course Improvements or Premises Improvements in accordance with the terms of this Lease. Section 7. Utilities, Taxes, and Other Charges 7.1 Lessee shall pay or cause to be paid all charges for water, gas, electricity, garbage, telephone, sanitary sewer, storm water, drainage, and any and all other services used by Lessee in or upon the Premises or any Premises Improvements. 7.2 Subject to Section 7.7, Lessee shall pay and discharge, or cause to be paid and discharged, before any fine, penalty, interest, or cost may be added for nonpayment, all real estate taxes, personal property taxes, privilege taxes, excise taxes, business and occupation taxes, gross sales charges, assessments (including but not limited to, assessments for public improvements or benefits), and all other governmental impositions and charges of every kind and nature whatsoever, whether or not now customary or within the contemplation of the parties and 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 14 Error! Unknown document property name. 7.2.3 Shall be levied, assessed, or imposed on or against Lessor by reason of any actual or asserted engagement by Lessee, or by Lessor at the direction of, directly or indirectly, in any business, occupation, or other activity in connection with the Premises or any Premises Improvements; or 7.2.4 Shall be levied, assessed, or imposed on or in connection with the ownership, leasing, operation, management, maintenance, repair, rebuilding, use, or occupancy of the Premises or any Premises Improvements under or by virtue of any present or future Legal Requirement, it being the intention of the parties that, insofar as the same may lawfully be done, Lessor shall be free from all such expenses and all such real estate taxes, personal property taxes, privilege taxes, excise taxes, business and occupation taxes, gross sales taxes, occupational license taxes, water charges, sewer charges, assessments, and all other governmental impositions and charges of every kind and nature whatsoever (all of such taxes, water charges, sewer charges, assessments, and other governmental impositions and charges that Lessee is obligated to pay being collectively called "Tax" or "Taxes "). 7.3 If by law any Tax is payable, or may at the option of the taxpayer be paid, in installments, Lessee may, whether or not interest shall accrue on the unpaid balance; pay the same, and any accrued interest on any unpaid balance, in installments as each installment becomes due and payable, but in any event before any fine, penalty, interest, or cost may be added for nonpayment of any installment or interest. With respect to any assessments for public improvements or any similar assessments, Lessee may request amortization of such assessments over the longest period permitted by governmental authority so long as such does not exceed the Basic Term or any extension thereof exercised by Lessee. Lessee shall be obligated to pay off any unpaid balance of any such installment payment plan upon the termination of this Lease. 7.4 Any Tax relating to a fiscal period of the taxing authority, a part of which is within the Lease Term and a part of which is not within the Lease Tenn, 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 Tenn. 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 15 Error! Unknown document property name. sufficient to pay such Tax, together with all interest and penalties in connection with such Tax and all charges that might be assessed against the Premises or any Premises Improvements in the legal proceedings. On termination of such legal proceedings, the security originally deposited shall be applied to the payment, removal, and discharge of the Tax and the interest and penalties in connection with the Tax and the charges and costs accruing in such legal proceedings and the balance, if any, shall be paid to Lessee. If such security shall be insufficient for this purpose, Lessee shall forthwith pay over to Lessor an amount sufficient, together with the security originally deposited, to pay the same. Lessee shall not be entitled to interest on any money deposited pursuant to this section. 7.7 Any contest as to the validity or amount of any real or personal property tax, or assessed valuation on which such tax was computed or based, whether before or after payment, may be made by Lessee in the name of Lessor or of Lessee, or both, as Lessee shall determine, and Lessor agrees that it will cooperate with Lessee in any such contest to such extent as Lessee may reasonably request, and Lessee covenants to indemnify and save Lessor harmless from any such costs or expenses. Lessee shall be entitled to any refund of any such Tax and penalties or interest that have been paid by Lessee. 7.8 Lessee shall be responsible and shall pay or cause to be paid all costs directly or indirectly related to Lessee's development and use of the Premises and Premises Improvements constructed thereon. 7.9 The parties shall use reasonable efforts to see that all communications from governmental authorities respecting Taxes are sent directly by such authorities to Lessee. The certificate, advice, receipt, or bill of the appropriate official designated by law to make or issue the same or to receive payment of any Tax or nonpayment of such Tax, shall be prima facie evidence that such Tax is due and unpaid or has been paid at the time of the making or issuance of such certificate, advice, receipt, or bill. Section 8. Insurance 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 five _million dollars ($5,000,000.00) 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 16 Error! Unknown document property name. Lessor prior to the Commencement Date (evidencing coverage in the amount of two Million Dollars ($2,000,000) covering the Due Diligence Period), and thereafter prior to the Premises Turnover Date (evidencing coverage in the amount of five - million dollars ($5,000,000)), and renewal policies shall be delivered to Lessor within ten (10) days before the expiration of the term of each such policy or policies. As often as any such policy or policies shall expire or terminate, renewal or additional policies shall be procured and maintained by Lessee in like manner and to like extent. All policies of insurance must contain a provision that the company writing the policy will give Lessor thirty (30) days' written notice in advance of any cancellation, non - renewal substantial change of coverage, or the effective date of any reduction in amount of insurance. During the term of this Lease, Lessor shall maintain, or cause to be maintained, in full force and effect, on and with respect to the Golf Course, either proof of self - insurance, or insurance through a joint powers authority, reasonably acceptable to Lessee in the amounts and with additional insured requirements set forth in this paragraph or policies of (i) commercial general liability insurance, written on an "occurrence" policy form, with bodily injury and property damage coverage arising out of or relating to Lessor's ownership, business operations, use or occupancy of the Golf Course, which shall name Lessee, Lessee's first mortgagee, —and Top Go! Top og if s first mortgagee and TepCel€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 Twofive Million Dollars ($25,000,000) per person, with a combined single limit of not less than T- hreefive Million Dollars ($351000,000.00) 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 (6t'') 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 17 Error! Unknown document property name. statistics as computed by an agency of the United States Government or, if none, by a substantial and responsible periodical or publication of recognized authority most closely approximating the result which would have been achieved by the Index. Section 9. Lessor's Right to Perform Lessee's Covenants 9.1 If Lessee at any time fails to pay any Tax in accordance with the provisions of this Lease or fails to make any other payment (other than Rent) or perform any other material act on its part to be made or performed (in each instance, to the extent applicable, within the applicable notice and cure periods provided in this Lease), then Lessor may (but shall be under no obligation to): 9.1.1 Obtain the same on Lessee's behalf, and without waiving or releasing Lessee from any obligation of Lessee contained in this Lease or from any default by Lessee and without waiving Lessor's right to take such action as may be permissible under this Lease as a result of such default, and after Lessee's failure to obtain any required liability insurance or evidence thereof, procure such insurance and Lessee shall pay to Lessor the actual costs and expenses thereof as applicable to that period of time between the expiration of such notice and the date upon which Lessee provides such certificate or evidence of liability insurance to Lessee as required hereinabove, and any actual costs incurred by Lessor in obtaining or terminating its procured insurance; and/or 9.1.2 After ten (10) days prior written notice to Lessee which specifies what action is required, perform the same on Lessee's behalf, make any other payment or perform any other act on Lessee's part to be made or performed as provided in this Lease. 9.2 All sums so paid by Lessor and all actual costs and expenses incurred by Lessor, in connection with the performance of any such act, shall constitute Additional Rent payable by Lessee under this Lease and shall be paid by Lessee to Lessor on demand. 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, 18 Error! Unknown document property name. or liability of any kind against all or any part of the Premises and without subjecting Lessor to any liability, civil or criminal, for failure to comply, Lessee may delay compliance until the final determination of such proceeding; or 10.2.2 If any lien, charge, or civil liability would be incurred by reason of any such delay, Lessee nevertheless may contest the matter and delay compliance, provided that such delay would not subject Lessor to criminal or civil liability or fine, and Lessee prosecutes the contest with due diligence. 10.3 Lessor shall execute and deliver any appropriate papers, as determined in the Lessor's sole discretion, that may be necessary, proper or desirable to permit Lessee to contest the validity or application of any Legal Requirement, provided all the requirements of this section have been satisfied by Lessee. 10.4 Each party shall promptly provide the other party, in the manner provided in Section 31 below, copies of all material correspondence or other documents sent to or received from governmental agencies or other persons: (i) relating to Lessee's development of the Premises; and/or (ii) that may materially adversely affect the fair market value of the Premises. 10.5 Lessor represents and warrants to Lessee, that as of the Commencement Date and as of the Premises Turnover Date: 10.5.1 Lessor shall not during the Lease Term initiate any action that would create any encumbrances except for taxes, assessments and fees imposed pursuant to California Constitution Articles XII C and D (or other applicable laws), that would adversely affect Lessee's use, operation or occupancy of the Premises. 10.5.2 All persons and entities supplying labor, materials, and equipment to the Premises have been paid, there are no claims of liens and there are no service contracts applicable to the Premises. 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 Exeept for whie-h, however, will be i aeonataona ipThere is an existing agreement with to operate and kfevoeably terminated t^ manage the Property but the Lessor shall bathe Premises Turnover Date ensure 19 Error! Unknown document property name. that there are no existing leases, tenancies, rental agreements or entitlements or use agreements, or unrecorded restrictive covenants affecting all or any portion of the Premises except for the Permitted Exceptions,, —., 10.5.6 Lessor is not a foreign person, nonresident alien, foreign corporation, foreign partnership, foreign trust, or foreign estate, as those terms are defined in the Internal Revenue Code and the Income Tax Regulations promulgated thereunder. 10.5.7 Lessor has made no untrue statements or representations in connection with this Lease 10.5.8 Lessor has to the best of its knowledge provided or made available to Lessee all information in Lessor's possession that Lessee has requested, and Lessor to the best of its knowledge has provided or made available to Lessee any public information or knowledge actually obtained by Lessor of any change contemplated in any applicable laws, ordinances or restrictions, or any judicial or administrative action, or any action by adjacent landowners, or natural or artificial condition, financial or otherwise, which would prevent, limit or impede the use of the Premises as contemplated by this Lease. 10.5.9 All documents delivered or made available to Lessee by or on behalf of Lessor are to the best or Lessor's knowledge true and correct copies of the documents in Lessor's possession. 10.5.10 Prior to the Premises Turnover Date, and except as otherwise provided in this Lease, Lessor has: (i) performed all of its obligations under any lien indebtedness, and (ii) except as expressly permitted by this Lease, not allowed any lien to attach to the Premises or any portion thereof which is not discharged at the Premises Turnover Date, nor granted, created, modified or permitted the creation of, any easement, right -of -way, encumbrance, restriction or covenant affecting the Premises or any part thereof. 10.5.11 To Lessor's actual knowledge, except as may be contained in the written materials delivered or made available to Lessee during the Due Diligence Period, Lessor is not aware of the existence of Hazardous Substances (as defined in Section 42), at the Property. For 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. 20 Error! Unknown document property name. 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 TepFietfI'op og_lf 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 TepCelfropgol£ 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 Tep6elTopgolf 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 TepC Qpgolf 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 89:00 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 CeITo olf 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 the driving range as set 21 Error! Unknown document property name. 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 Top Golf-Top og_lf, 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 Top Golf -To golf delivered to Lessee and Top Go! Topgol f 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. Notwithstanding anything herein to the contrary, in no event during Lessor's operation of the Premises shall Lessor utilize any proprietary equipment and/or other proprietary elements of Tongolf's business, including, without limitation, computer hardware and software and other intellection property, located upon or about the Premises. 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 on golf charges 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 og If ng discounts offered by Lessee such as the twenty percent (20 %) golf discount offered to senior citizens and active military personnel. 11.4 During such times that Top Ge4T92golf is the operator it shall: (a) between the hours of 6:00 a.m. and 112:00 a.m. charge * ei�sCity of El Segundo residents that have a Parks and Recreation Card shall be allowed to use the portion of the Premises used identified in Section 11.2(i) of this Agreement for driving range use and shall be charged a fee, less the applicable discounts identified in Section 11.3, that is consistent with fees charged by other driving ranges in Los Angeles County that are open to the public and 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 Gelffop-golf facilities; c 11., ... ble e ffet4s 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 eeffffnereially r-easenable e m As to all,.w golf and allow use of the driving range for such groups on the Premises at rates commensurate with those currently charged to youth groups utilizing the driving range which rates may be adjusted on annual basis using the Los Angeles Area Consumer Price Index for All Urban Consumers; (d) employ or contract with golf professionals (at salaries or rates commensurate with amounts paid to golf professionals in Los Angeles County, ), including using a 22 Error! Unknown document property name. good faith effort to employ or contract with 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; including using a good faith effort to employ or contract with two golf professionals that are currently providing services on the Property during the time en riod between _the Initial Term and Premises Turnover Date tAilize eommereially reasonable eff-erts to eWlay two golf pr-ofessional that euFfently provide lessons on the Propefty; (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 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 Top Golf—Topgolf defaults in its construction obligations under its suhleaseSublease 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 23 Error! Unknown document property name. obligation to pay Rent or any other payment in the event of any such default by Top Gal€To g o_lf 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 Per-shin gTopgolf Guarantor 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 retain fifty percent (50 %) of any net revenue resulting from the Golf Course operations for the period commencing on the Premises Turnover Date and ending on the Fixed Rent Commencement Date or until the Golf Course Improvements are completed and the Golf Course is capable of being operated in accordance with Section 4.1 of this Lease before the expiration of such ten month period. Notwithstanding the foregoing Lessee shall retain in its sole and absolute discretion the absolute and unconditional right to shut down the Golf Course operations or portions thereof at any time during the period commencing on the Premises Turnover Date and ending on the Fixed Rent Commencement Date. Within ninety (90) days after the Commencement Date, Lessee shall deliver to Lessor the conceptual Golf Course Improvement Plans and Specifications for Lessor's approval as provided in Section 5.4 of this Lease. 12.3 Lessor shall review and approve the Plans and Specifications, such approval not to be unreasonably withheld, conditioned or delayed, and/or provide Lessee with its comments within thirty (30) days after Landlord's receipt of the Plans and Specifications. If disapproved Lessee shall make all necessary revisions within ten (10) days after Lessee's receipt thereof. This procedure will be repeated until Lessor ultimately approves the conceptual Plans and Specifications or until this Lease is terminated in accordance with Section 5.4 and/or 5.5 hereof. Notwithstanding the foregoing, the conceptual Plans and Specifications for the Premises Improvements shall be approved if they are consistent in all material respects with the Prototype Facility and all applicable zoning and building and safety laws and regulations, and the conceptual Plans and Specifications for the Golf Course Improvements shall be approved if they are consistent in all material respects with Exhibit "D" and all applicable zoning and building and safes laws Formatted: Font: Bold 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 24 Error! Unknown document property name. 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 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 25 Error! Unknown document property name. 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. 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 Lessees or TepOel#Topgolf or any Premises Improvements related to the use, occupancy or development of the Property by or on behalf of Lessee- or Top og_lf, 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. 26 Error! Unknown document property name. 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 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 Top GelfTTo g o_lf 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 27 Error! Unknown document property name. 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 Top Gel— Topgolf El Segundo 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. 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 28 Error! Unknown document property name. 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; 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 29 Error! Unknown document property name. 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. Notwithstanding the foregoing, Lessor hereby approves the sublease of the Premises to TepGeltToygolf El Segundo so long as such s4leases deSublease does 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 Tep Ga,147queolf Guarantor and Lessor of such termination and shall provide and Top Gelf Toygolf Guarantor with -thirty (30) days in which to agree as between themselves as tedetermine whether ane e~rbeth °onto enter into a lease of the Premises on the identical rental and other terns and conditions as this Lease (and Lessor shall afford themTopgolf Guarantor 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, and p- Gelf-Topgolf Guarantor 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, Top Ge14Topgolf Guarantor 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 TepGelfropgolf Guarantor , 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 other-wise eoneedes that flnis r ° ° has *°fminated agrees or otherwise concedes that this Lease has terminated. In the event that the sublease is terminated within the later time period of seven (7) years following the Fixed Rent Commencement Date or within seven years (7) years and ten (10) months following the Premises Turnover Date, such shall be deemed a default and breach of this Lease and obligate the Top Golf Guarantor for damages resulting from such default and breach. 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) 30 Error! Unknown document property name. 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 Top GeUTop og_lf Guarantor 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 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. 31 Error! Unknown document property name. 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 (5) months with respect to a failure to comply with the Continuous Operation Requirement. For purposes of this provision, except for the Continuous Operation Requirement, the filing of and diligent prosecution of successful litigation by Lessee against any sublessee to effect such cure (including any such litigation to gain possession of the Premises from Top Gelffopgolf 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 32 Error! Unknown document property name. 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 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 33 Error! Unknown document property name. 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 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 34 Error! Unknown document property name. 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. 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 35 Error! Unknown document property name. 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 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 Top Golf—Topgolf El Segundo under the identical terns 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 8 10,000,000 .,.,...,.,..:.,,.l.. 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 Top GeUTp2golf 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 36 Error! Unknown document property name. 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. 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: 37 Error! Unknown document property name. 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 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°/x) 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. 38 Error! Unknown document property name. 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 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 pat4y legal ehallenges, actions taken by governmental agencies, not including the he city, that could not have been reasonably anticipated by and timely resolved by a party, or by any eihef eause not feasonably • ithin the paft..'s ~*~a' whether of of s ei fi ally ... .,ti,. «.,,7- ("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 39 Error! Unknown document property name. mail, postage prepaid, return- receipt requested, or iii 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: The City of El Segundo 350 Main Street El Segundo, CA 90245 -4635 Attention. City Manager If to Lessee And/or Guarantors: ES CenterCal, LLC, 1600 East Franklin Street El Segundo, CA 90245 Attention.: Jean Paul Wardy CenterCal, LLC, 1600 East Franklin Street El Segundo, CA 90245 Attention.: Fred W. Bruning TopGolf USA Ins: °*' 3,fEl Segundo, LLC 8750 N. Central Expressway, Suite 1200 Dallas, Texas 75-202 Fa. i. (866) 577 4612 75231 Attn: Randall P. Starr, VientChief Development Officer TopGolf USA El Segundo, LLC 8750 N. Central Expressway, Suite 1200 Dallas, Texas 75231 Attn: Elizabeth Bonesio, Corporate Counsel 40 Error! Unknown document property name. Formatted: Font color: Black t Formatted: Tab stops: Not at 2" With a copy (which shall not constitute notice) to: Griffin Fletcher & Herndon, LLP 6857 Amber Lane Carlsbad, CA 92009 Attention.: Edward Krasnove, Esq. Leeke raDentons US LLP 2200 Ress2000 McKinney Avenue, Suite 22N1900 Dallas, Texas 75201 Fa-x• (214) 756 4547 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 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. 41 Error! Unknown document property name. Section 35. License Agreement Lessor represents and warrants to TenantLessee 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 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 42 Error! Unknown document property name. 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 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 43 Error! Unknown document property name. 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 _ Lessor shall have the right no more than once annually, to conduct annual -\ audits eitheran audit of the Gross Receipts for the immediately preceding calendar year or prio three years, with ra.ora qualified Certified Public Aecounts, an audit-of th"Foss- beverage revenues °^° purposesAccount. The audit shall be conducted with at least ninety (90� days prior notice to Lessee and during regular business hours at Lessee's corporate office, solely for the purpose, of determining whether-the accuracyof the Variable Rent calculations and payments: for the preceding calendar year or prior three years. Any such audit shall not unreasonably interfere with Lessee's business operations. Any such audit by Lessor shall be at Lessor's own expense., If such audit reveals that the QtyLessor. was underpaid by three percent 3! )or more for the audited period, Lessee shall pay Lessor the reasonable cost of the audit together with the amount of the underpaymen -qlus a ten percent (10 %) theFeon to the 00 - enalty on the amount of the undetjayment within thirty days of being presented with copy of the audit from the Oty- Lessor. Section 44. Counterparts This Lease may be executed in any number of counterparts and each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one Lease. Section 45. Consent and Approval Rights Except as otherwise expressly set forth in this Lease or provided by law, references in this Lease to "consent," "approval," "acceptable," and "satisfactory" shall not be interpreted as justifying arbitrary rejection but shall imply a good faith, reasonable application of judgment taking into consideration customary leasing practice and commercial custom. Section 46. Prevailing Wages Lessee shall pay prevailing wages as defined by the California Labor Code and applicable regulations for all the Golf Course Improvements and the Premises Improvements and other work performed on the Property. Lessee shall provide to Lessor all records required by state law, including but not limited to the California Labor Code and applicable regulations, to prove that prevailing wages are being paid, including without limitation maintaining and providing weekly certified payroll records to the Lessor evidencing that Lessee paid prevailing wage for all of the 44 Error! Unknown document property name. Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Indent: Left: 0 ", First line: 0 ", Tab stops: Not at 0.5" Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold 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 Lessee hereby waives and agrees it shall have no right to offset the amount of business license taxes owed to the City pursuant to El Segundo Municipal Code Chapters 3 or 4 based upon sales tax the City receives from operations occurring on the Premises during the term of this Lease, and any such applicable sales tax credits are hereby waived. THE BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK 45 Error! Unknown document property name. Formatted: Space After: 0 pt Formatted: Font: Bold Formatted: Font: Bold Formatted: Font: Bold IN WITNESS WHEREOF, Lessee and Lessor have caused this Lease to be executed by their duly authorized representatives. Lessor: THE CITY OF EL SEGUNDO, a Chartered City and Municipal corporation By:_ Name: Lessee: ES CENTERCAL, LLC, a Delaware limited liability company By: CENTERCAL, LLC, a Delaware limited liability company By: CENTERCAL ASSOCIATES, LLC, a Delaware limited liability company By Print Name Print Title: Its Manager Exhibit "A" — Legal Description Exhibit "A -1" — The Premises Exhibit "A -2 "- The Golf Course Exhibit "B" — Site Plan Exhibit `B -1" — Preliminary Site Plan Exhibit "C" — License Agreement ,xhibit "D" — Golf Course and Premises Improvements Exhibit "E" — Permitted Exceptions 46 Error! Unknown document property name. Formatted: Highlight Exhibit "F" — Form of Memorandum of Lease Exhibit "G" — Prototype Facility Exhibit "H" — Form of Guaranties 47 Error! Unknown document property name. EXHIBIT "A" LEGAL DESCRIPTION Error! Unknown document property name. EXHIBIT A -1 THE PREMISES THIS EXHIBIT TO BE PREPARED WITHIN ONE HUNDRED TWENTY DAYS OF COMMENCEMENT DATE AND ATTACHED HERETO. Error! Unknown document property name. EXBHIT A -2 THE GOLF COURSE THIS EXHIBIT TO BE PREPARED WITHIN ONE HUNDRED TWENTY DAYS OF THE COMMENCEMENT DATE AND ATTACHED HERETO. Error! Unknown document property name. EXHIBIT `B" SITE PLAN Error! Unknown document property name. .4i �1 EXHIBIT `B -1" PRELIMINARY SITE PLAN Error! Unknown document property name. EXHIBIT "C" SCE LICENSE AGREEMENT Error! Unknown document property name. EXHIBIT "D" GOLF COURSE AND PREMISES IMPROVEMENTS Error! Unknown document property name. EXHIBIT "E" PERMITTED EXCEPTIONS [TO BE FINALIZED AND ATTACHED WITHIN 60 DAYS FROM THE COMMENCEMENT DATE] Error! Unknown document property name. EXHIBIT "F" FORM OF MEMORANDUM OF LEASE THIS EXHIBIT TO BE PREPARED PRIOR TO EXECUTION OR CONDITION PRECEDENT TO BE ADDED REQUIRING THAT IT BE PREPARED WITHIN NINETY DAYS AND ATTACHED HERETO. Error! Unknown document property name. EXHIBIT "G" PROTOTYPE FACILITY Error! Unknown document property name. NO ATTACHED STAFF REPORT AT THIS TIME. ITEM FOR REVIEW ONLY 2. Consideration and possible action regarding receiving an update with respect to the City's negotiations with CenterCal and Top Golf regarding the draft Due Diligence Lease Agreement that provides for the leasing of the driving range at the Lake's Golf Course to CenterCal and Top Golf for purposes of operating a Top Golf facility and the reconstruction of the golf course. (Fiscal Impact: None Recommendation — 1) Consideration and possible action regarding receiving an update regarding the Agreement negotiations and provide feedback to City Manager and City Attorney as appropriate; 2) Alternatively, discuss and take other action related to this item. 37 38 EL SEGUNDO CITY COUNCIL MEETING DATE: July 21, 2015 AGENDA STATEMENT AGENDA HEADING: Unfinished Business AGENDA DESCRIPTION: Consideration and possible action to 1) review the proposed designs for the Richmond St. Rehabilitation Arterial Improvement Project between El Segundo Blvd. and Holly St., 2) provide direction to staff on possible revisions and 3) direct staff to proceed with preparation of construction plans and specifications. (Fiscal Impact: $800,000) RECOMMENDED COUNCIL ACTION: 1. Review the proposed designs for the Richmond St. Rehabilitation Arterial Improvement Project; 2. Provide direction to staff on possible revisions to the proposed designs; 3. Direct staff to proceed with the preparation of construction plans and specifications inclusive of any design changes; or 2. Alternatively, discuss and take other possible action related to this item. ATTACHED SUPPORTING DOCUMENTS: Summary of Public Comments Received Draft Design Plans FISCAL IMPACT: Included in Adopted Budget Amount Budgeted: $800,000 Additional Appropriation: No Account Number(s): 301 - 400 - 8203 -8703 (Capital Improvement Program) ORIGINATED BY: Stephanie Katsouleas, Public Works Dirccto REVIEWED BY: Greg Carpenter, City Manager APPROVED BY: Greg Carpenter, City ManagerlfOw 96 BACKGROUND AND DISCUSSION: Over the years, the 100 -300 blocks of Richmond Street and its adjacent sidewalks have been severely damaged due to aggressive root system of Ficus trees. And, although the city recognized and prioritized rehabilitating the street more than seven years ago, it was not able to implement the project due to the economic crisis. Since that time, the popularity and success of El Segundo's downtown business district has grown as the economy has rebounded. As such, the need for additional parking to meet the growing demand for patrons visiting the restaurants, shops and businesses has also become apparent. To address both the damaged streets and sidewalks and the growing parking concerns, in the fall of 2013 City Council directed staff to investigate opportunities to increase the availability of parking on Richmond St. and Standard St along the 100, 200 and 300 blocks that could be achieved in concert with the rehabilitation project.. A concept study, completed in early 2014, indicated that additional parking spaces could be achieved by widening and reconfiguring striping on Richmond Street, but that no real 39 gains could be achieved on Standard St. due to the number of driveways present. The striping configuration proposed at that time called for a combination of angled and parallel parking. In the fall of 2014, Council approved staff's recommendation to install angled parking on the west side of Richmond as a "pilot project" in concert with the slurry seal project for the three blocks under consideration. The temporary striping was intended to give businesses, patrons and residents a feel for what angled parking would be like prior to permanently constructing any changes. Once installed, additional modifications were made to the striping plan, which included widening the stall widths in the 100 and 200 blocks and removing angled parking completely in the 300 block of Richmond due to community concerns about safety. With the exception of the 300 block, the overall feedback has been mostly positive about the angled parking configuration and additional parking spaces created. In the fall of 2014, City Council also approved an $800,000 budget as part of the 2014/15 Capital Improvements Program to move forward with the rehabilitation of Richmond St., which included finalizing proposed widening and parking modifications (discussed below). The first phase of this rehabilitation project included convening a City Council subcommittee (Jacobson and Atkinson) to participate in the design phase and outreach efforts to the community about the proposed changes to Richmond St. The second phase will include preparing construction documents based on Council direction after review of the proposed plans and consideration of community feedback. During Phase I, three community meetings were held as follows: • Thursday, April 23: Initial designs were presented to the subcommittee and residential /commercial focus group and then breakout groups were formed for each of the three blocks under consideration. Substantial input (discussed below) was provided by 15 homeowners and businesses adjacent to Richmond Street who attended the meeting. • Tuesday May 12: Revised designs were presented to the subcommittee and residential focus group. Additional comments were received (discussed below). • Wednesday June 10: The public meeting notice was published twice in the El Segundo Herald and on the City's website. Tentative final plans were presented to the residents and businesses in attendance. Additional comments were received (discussed below). Design Considerations: The total right -of -way (ROW) width for all three blocks is 60'. The street is 40' wide and the remaining right -of -way width on each side is 10'. Sidewalk widths currently range from low of 4' to a maximum of 10' behind the curb. The proposed designs call for widening Richmond Street from 40 feet to 46 feet and narrowing the sidewalks from 10' to 7' in the 100 and 200 blocks, and for the majority of the 300 block (see map below). This reconfiguration allows angled parking to be installed on the west side of the street and parallel parking to remain on the east side of the street. The design was drafted with the following criteria in mind: • Restore the street and sidewalk damage caused by the trees • Maximize the availability of parking within these three blocks • Create parking stalls sufficiently wide to comfortably enter and exit vehicles • Ensure drive aisles are wide enough to accommodate parking maneuvers and safe travel • Ensure that parking stalls are sufficiently set back from driveways to provide visual clearance for exiting cars .N • Comply with Americans with Disabilities Act (ADA) requirements • Improve the pedestrian experience • Enhance street and pedestrians lighting • Incorporate features that are compatible with adjacent business operations (e.g., loading zones, handicap parking stalls, larger congregation areas). • Ensure the plans can accommodate future growth and needs in the downtown area The proposed angled and parallel parking stall configurations are shown in the graphics below. The proposed design for parallel parking stalls is reflective of the length and width ranges identified in the American Association of State Highway and Transportation Officials ( AASHTO or Green Book) and Caltrans and the El Segundo Municipal Code (ESMC) guidelines, which range from 20' -26'. Stall widths for angled parking are also reflective of AASHTO and ESMC guidelines as well as the results of the pilot striping project. Please note that the length of the parallel stalls ultimately chosen will only slightly impact the total number of spaces available. This is further evaluated under the 300 block discussion below. 8• n b CURB TYPICAL ANGLED PARKING SPACE (NTS) CURB I 24, 0 o6 Typical Middle Space (Parallel) CURB 20' 1 n 1 ai J_ J Typical End Space (Parallel) For discussion purposes, most of the following information is presented block -by -block so that unique design considerations, issues and community concerns of each distinct block can be clearly presented. General Public Comments and Concerns: Staff received general questions regarding the timing and scope of the project, such as how long construction will take, when is it scheduled to begin, how long individual businesses will be affected during construction, what type of business access will be available during construction, what is the plan for new trees and what ADA requirements must be met. Many of these questions could not be immediately answered because they are dependent on the construction plan sequencing, which will be developed later this year along with construction documents. However, staff assured attendees that the City will be working very closely with property and businesses owners prior to and during 41 construction to ensure that businesses /residents are kept fully informed of the expected impacts and resolutions. 100 Block of Richmond Street The east side of Richmond is predominantly bordered by a large Chevron parking lot, the Old Town Theater and one commercial building, while the west side is predominantly bordered by mixed use commercial. 100 Block 1 34 1 47 1 13(38%) Concerns were raised by the Old Town Theater that there is not currently sufficient space to accommodate patrons who congregate outside the buildings entrance, and that a further reduction to the sidewalk would only exacerbate the problem. The Theater's owners also cited concerns about ADA access and the need for an adequate loading zone for large buses who bring people to the theater. The design team was able to develop a plan to resolve their concerns by: 1) extending the curb into the street to create a larger congregation area than what is currently available, 2) designating the corner -most parking stall on the east side as a handicap parking spot and 3) creating a shared parking /loading zone just south of the theater. The plans also call for installing a handicap parking spot on the west side of the street at the "crown, " which is both centrally located within the block and at a location that minimizes the horizontal slant that can make opening and closing doors difficult. Comments received from businesses about the proposed configuration were positive; staff is not currently aware of any opposition to the design proposed for the 100 block of Richmond St.. 200 Block of Richmond Street The east side of Richmond St. is adjacent to one public parking lot and several commercial establishments, while the west side is adjacent to one private parking lot and mixed use commercial establishments. The street design assumes that the driveway to the private parking lot will be relocated to Franklin St., thereby freeing up additional space for angled stalls on the west side of the street. Additionally, a loading zone is proposed on the northeastern end of the 200 block, which will accommodate the delivery needs of Carpet One and other nearby businesses. Second City's patio will be removed from the public right -of -way to accommodate the narrower sidewalks proposed. The general feedback among businesses in the 200 block has been positive. i 2nd City Bistro Outdoor Dining Encroachment into the public ROW. 42 200 Block 1 17 1 26 1 9(53% 300 Block of Richmond Street The east side of the 300 block is adjacent to the City parking structure, the 99¢ Only Store, one private parking lot and a few residential parcels, while the west side is adjacent to mixed use commercial parcels, including shops, offices and one church which also runs a daycare facility. There are several encroachments within the 10' of public right - of -way behind the curb, which include furniture staging at the antique store, parking spaces and bollards in the private lot behind the 99¢ Only Store, the St. Michaels daycare playground and yards /driveways for the condominium development. On the east side of the 300 block, the plan proposes parallel parking over its entire length, reducing the sidewalk from 10' to 7' in front of the parking structure and the 99¢ Only Store, and widening the sidewalk in front of the residential parcels from 4' to 5'. On the west side of the 300 block, the plan proposes a combination of angled and parallel parking (see map below), narrowing the sidewalks adjacent to commercial businesses from 10' to 7', and widening the sidewalk in front of St. Michael's church from 4' to 7' consistent with the rest of the west side of the block. Community Feedback The city did not receive any comments back from the businesses located on the 300 block, but did receive a significant number of comments from the residents and church regarding in opposition to the proposed changes as follows: • The condominium association residents: o Oppose widening the sidewalk adjacent to the condominiums from 4' to 5'. o Oppose widening the sidewalk in front of St. Michaels's Church from 4' to 7'. o Oppose the proposed street widening and installation of angled parking o Requested that the proposed centerline stripe on Richmond St. approaching Holly Ave. be removed. o Believe that a parallel stall length of 20' is sufficiently long to accommodate parked vehicles. o Assert that there is no parking problem within the 300 block, that it is uniquely different than the 100/200 blocks in terms of use and demand, and altering it will not alleviate the parking problems associated with the 100/200 blocks. o Believe that the parking garage is under utilized and has poor signage, and that if this were corrected, there would be no need to widen the 300 block. • St. Michaels Church/Child Care Center • Does not want to relinquish 6' of public right -of -way currently used to provide additional outdoor space for its daycare operations. • Opposes widening the sidewalk from 4' to 7' and widening the street adjacent to the church by an additional 3'. • Should the street be widened, the church concern about the safety of children using the bicycle lot due to potential changes in traffic patterns. • Has concern about the impact of construction on its daycare operations. 43 o Has concern about the cost the church will incur for any on -site work needed as a result of street reconstruction plans. • Both residents and the church desire to have the character /feel of the northern section of the street remain substantially residential rather than commercial, and feel that the narrower sidewalks help achieve that. Staff met with church officials regarding the proposed plans to better understand the church's concerns about its daycare operations and other issues raised above. The church has three primary concerns: 1 Whether relinquishing the 6 of public right -of- -way currently used for outdoor play space would trigger the need to reduce its daycare enrollment to comply with the California Department of Social Service's (CDSS) minimum outdoor space requirements of 75 ft2 per child, or whether it would need to consider reconfiguring its playground to incorporate additional open space to meet the minimum requirements. According to the church and its license issued by CDSS, the daycare is permitted for 42 pre- schoolers and 12 infants /toddlers, for a total of 57 enrollment spots. Thus the total minimum outdoor space needed to comply with state requirements is presumed to be 4275 ft2 for 57 children. Staff met with the daycare center to field measure the site and estimates that St. Michaels encroachment into the the church already provides more than 5500 ft2 of public Row. outdoor space on its own property for daycare operations. Therefore, it appears that the daycare does not require the additional 600 ft2 of public ROW space it currently utilizes and will not need to reconfigure its playground perimeter in order to meet the State's requirements for its permitted enrollment capacity. The playground structures themselves also meet the State's setback requirements without the need to be relocated. These findings address concerns about the cost of reconstructing the playground or reducing enrollment. Nevertheless, the church has indicated prefers that the sidewalks remain narrower and that it be able to continue using the ROW to minimize any impacts on its playground and daycare operations. 2. To what extent construction activities will impact its daycare operations. The church is concerned that construction will impact children's outdoor playtime and indoor nap time while construction activities are in front of its facility, and even more so during relocation of the playground retaining wall located in the public ROW. Once plans are finalized and construction documents prepared, staff will have better insight about the potential impacts and can then investigate opportunities to minimize those impacts. Potential solutions may include staging some construction activities during the holiday when the daycare is closed, maximizing weekend work and providing appropriate screening between the playground and the construction site. .. 3. Whether the wider street will encourage northbound traffic to utilize the church driveway on Richmond to effectively u -turn in order to secure an angled parking spot on the west side of the street. Based on traffic patterns observed near the library, staff believes that most northbound travelers are more likely to attempt turning directly into the angled parking spot rather than proceed to the church driveway to make a u- turn. Still, any concerns raised can be mitigated by the installation and use of retractable traffic bollards (similar to those used in Santa Monica on 3rd Street) or other mobile devices. Sidewalk Widths and Parking Stall Configurations within the 300 Block The design criteria for the proposed sidewalk widths in the 300 block is based on the following parameters and professional opinions: 1. 7' sidewalks adjacent to the mixed use commercial properties are adequate to comfortably accommodate patrons while also providing periodic spacing for trees and other sidewalk impediments. The proposed width meets both American Association of State Highway and Transportation Officials ( AASHTO) and Americans with Disabilities Act Accessibility Guidelines ( ADAAG) recommendations. 2. 4' sidewalks, when located immediately adjacent to the street, do not meet AASHTO and ADAAG recommendations for providing adequate pedestrian access given miscellaneous encroachments. The AASHTO minimum recommendation of 4' residential sidewalk width is increased by 2' when the sidewalk abuts the curb to account for typical sidewalk impediments and adjacent street uses (e.g. signs, parked cars). Additionally, although handicap access routes require a minimum continuous travel width of 4',1 wheelchairs require 5'clear for maneuvering or for passing, making 5' sidewalks more desirable for disabled user groups. For this reason, ADAAG ultimately recommends that continuous sidewalk widths be at least 5' to accommodate all ADA access uses. 3. The block is predominantly mixed -use commercial on both sides of the street, and as such the wider sidewalks accommodate broader user groups who frequent or travel to and from businesses in the immediate area. The design criteria for parking stall width and length (8.5'x24') also follows AASHTO and ESMC guidelines. Concerns were raised about the need to have 24' parallel stalls, especially when compared to the current configuration of 19' -20' parallel stalls found on Richmond St. and elsewhere throughout the city. Considering that the ultimate length of parallel stalls can impact the total number of parking spaces planned, staff evaluated three stall lengths (20', 22', 24') and their impact on the total number of spaces achievable. The results are as follows: 1 ACCESS- BOARD. GOV: R302.3 Continuous Width. Except as provided in R302.3.1, the continuous clear width of pedestrian access routes shall be 1.2 m (4.0 ft) minimum, exclusive of the width of the curb. 45 Ui Segment 6 Segment 5 z w > a RICHMOND z44U 12 LANE N�. v -- 0 Q RIGHT 0, WAY Segment 1 Segment 2 Segment 4 LJ z LU Q STREET IS LANE 25+00 26 +OD ix LANk ,•ry n J J Segment 3 ° 00 Block Configuration Options Segment 1 Curb 116' Parking 20' 5 22' 5 24' • 5 Angled N/A Segment 2 170' 8 8 7 N/A Segment 3 (2 -part) 110 5 5 5 N/A Segment 4 125' 6 5 5 N/A Segment 5 45' 2 2 2 N/A Segment 6 300' 15 13 12 22 Total: all parallel 41 38 36 N/A Total: parallel + angled 48(+7) 47(+9) 46 ( +10) Segment 6 Alt* 50 2 2 2 5 Total: parallel w /closed dr. 1 43 1 40 1 38 Total: parallel, angled, closed driveway 53(+12) 52(+14) 51(+15) JC6'IIICIIL U MIL aJJUIIICJ LI IQL LI IC UI IVCVVOY OUJMICIIL LU LI IC U111 LUIC JLUIC VV III UC CII III IIICILCU LU 01IUVV IUI additional parking. The findings show that over the entire block, installing 20' stalls for all six segments will net 5 additional spaces when compared to the proposed 24' stalls, and 3 more than 22' stalls. Please note that although there are currently 46 parallel stalls in the 300 block, many are less than 20' and the driveway setbacks for visual clearance are substandard. When correcting for these deficiencies, the maximum achievable number of parallel stalls for a 20' length is 41, which is consistent with the pre - slurry count. However, installing angled parking in segment 6 increases the total possible count by 7 -10 additional stalls, depending on the comparable stall length chosen (17% or greater gain). The difference is even larger (12 -15) when considering removal of the antique store driveway. Based on observations of the types of vehicles parking on city streets and the wide variability of stall lengths installed, staff believes that the overwhelming majority of vehicles can be accommodated in 22' parallel stalls but that 20' stalls are too small for a sufficient number of vehicles, especially when considering the space needed to safely maneuver into and out of parallel parking spots (see photos). Parking on Richmond St. 1) Three vehicles utilizing four stalls and 2) Typical vehicles within 20' stalls. Based on the summary provided above, staff recommends that City Council take the following actions: 1. Approve parking stall lengths of 22', a variation of the ESMC, wherever it can be shown that the smaller space will result in an increased number of parking stalls for the particular curb segment. Otherwise proceed with the ESMC recommended length of 24'. There are a total of two street segments where parking would be increased by 1 stall each (segment 2 and segment 6 if not installing angled parking). 2. Approve the proposed designs for the 100 and 200 blocks of Richmond St., which will yield a total of 13 and 9 spaces, respectively. 3. Direct staff on whether to proceed with widening the 300 block to accommodate angled parking. The combination of 22' long parallel stalls and angled parking will yield an additional 9 parking spaces when compared to installing only parallel stalls. 4. Direct staff on whether to proceed with signage enhancements at the public parking garage to encourage broader use. 5. Direct staff on whether to proceed with widening the sidewalk in front of the condominiums from 4' to 5' to meet ADA recommendations. Currently the 4' sidewalk does not meet ADA standards because the width is inclusive of the curb. 6. If widening the street within the 300 block, direct staff on whether to proceed with widening the sidewalk in front of St. Michael's Church from 4' to 7' to be consistent with rest of the entire block, all of which is designated/zoned as mixed commercial use. Alternatively, consider whether a lesser width sidewalk width and possible continued use of the ROW for the playground is appropriate. Staff recommends a minimum of 5' be considered, consistent with ADA access recommendations. Currently the 4' sidewalk does not meet ADA standards because the width is inclusive of the curb. 7. As part of the overall parking enhancement program, direct staff to prepare striping drawings to secure additional parking on El Segundo Blvd., between Main Street and Richmond St. Staff estimates that approximately 8 -10 spaces can be gained by slight realignment of the 2 -lane configuration. The realignment can be completed with the upcoming slurry project and the gains immediately realized. 47 Proposed Timeline for Construction Pending direction and approve from City Council, staff anticipates the following timeline to complete the project: 2015 July- September: Proceed with drafting construction documents Seek Subcommittee and community input on landscaping options October: Submit plans to the city Plan review and corrections provided November /December Release bids 2016 January Bids Due February Execute Contracts Conduct outreach regarding construction timing and impacts March — May Active Construction (outside the rainy season) June Punch list and Completion G w a Z w 2 O OC a to w OC N Z O U xr: c� Z LLJ ru r�-1 N H N � Q 0 m Ln Ln z L LI 0 v J W D uj LU Z LL Q Z V) LL m t C N y v N 4- V a O 0 O O m M o .G � o m 4• v a � c � 'c c o N L N o o-oo C a, ao (14 C L +L+ m GJ m (U vf" O L w O 4J 3 Y O f0 O L O 'ro m y L >' 41 'O c L L V u (U O C 4J L w c aU ry L L ai ro L X v L � v u u o X fU L o +r c v a) u m o w° ro ao v ° r`o —�° u r E 3 °�' ° -C a v E c o c r c°i C 4« C a0i � w a m u c `� v 0 O `L C ` ? ° a ° 4J �' 0 °' rp '� a °' C L- v o a CL c> �° �+ N c >. 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O d y W C 3 T 10 > L N C L n c� E E � y C V C C N W J O N L O V Ol y C w O1(% O em O N c Q w O ZU ° U L `a c C T- E o c OE) d) p � r°2 = c a W F 0 5 0 Q Y O y a O�� w 0 W c C U LL LL >O> O F w Z m a 'Z' W I U Z W F Q II II LL II Z O Cl) U O U li U LL' G LL Q 0] x a LL a 55 CI CITY OF EL SEGUNDO PAYMENTS BY WIRE TRANSFER 6/15/15 THROUGH 7/5/15 Date Pafee Desc� 6/1912015 Health Comp 321.06 Weekly claims 6/19/2015 Manufacturers & Traders 48,135.92 457 payment Vantagepoint 6/19/2015 Manufacturers & Traders 477.31 IRA payment Vantagepoint 6/19/2015 Manufacturers & Traders 55,663.00 401 payment Vantagepoint 6/19/2015 US Bank - Trust Acct 5,786.47 PARS payment 6/19/2015 South Bay Credit Union 11,980.38 Payroll credit union deduction pmt 6/19/2015 Nationwide NRS EFT 62,816.20 EFT 457 payment 6/1912015 Nationwide NRS EFT 14,474.09 EFT 401a payment 6/19/2015 State of CA EFT 853.45 EFT Child support payment 6122/2015 IRS 243,695.44 Federal 941 Deposit 6/22/2015 Employment Development 3,330.64 State SDI payment 6/22/2015 Employment Development 50,642.20 State PIT Withholding 6/24/2015 Cal Pers 94,206.91 EFT Retirement Misc 6/24/2015 Cal Pers 265,587.64 EFT Retirement Safety 6/24/2015 Cal Pers 2,906.76 EFT Retirement Safety - Police 6/24/2015 Cal Pers 11,909.98 EFT Retirement Misc 6/25/2015 Unum 208.70 Long Term Care Premium 6/26/2015 Health Comp 798.33 Weekly claims 6/29/2015 Cal Pers 1,378,672.62 Annual OPEB payment 7/2/2015 IRS 50,373.89 Federal 941 Deposit - Retroactive pay 7/2/2015 Employment Development 9,240.68 State PIT Withholding - Retroactive pay 7/3/2015 Health Comp 850.78 Weekly claims 7/3/2015 Manufacturers & Traders 41,595.26 457 payment Vantagepoint 7/3/2015 Manufacturers & Traders 477.31 IRA payment Vantagepoint 713/2015 Manufacturers & Traders 967.12 401 payment Vantagepoint 7/3/2015 US Bank - Trust Acct 5,798.18 PARS payment 7/3/2015 South Bay Credit Union 11,980.38 Payroll credit union deduction pmt 7/3/2015 Nationwide NRS EFT 36,962.07 EFT 457 payment 7/3/2015 Nationwide NRS EFT 23.20 EFT 401 a payment 7/3/2015 State of CA EFT 853.45 EFT Child support payment 6/25/2015 Lane Donovan Golf Ptr 25,008.37 Payroll Transfer 6/13/15- 6/19/15 Workers Comp Activity 10,112.55 SCRMA checks issued 6/20/15- 6/26/15 Workers Comp Activity 50,231.11 SCRMA checks issued 7/1/15 - 7/5/15 Workers Comp Activity 11,905.57 SCRMA checks issued 6/13i15-6/19/15 Liability Trust - Claims 7,500.00 Clairin checks issued 6/20/15- 6/26/15 Liability Trust - Claims 1,645.98 Claim checks issued 6/27/15- 6/30/15 Liability Trust - Claims 80,000.00 Claim checks issued 2,597,993.00 DATE OF RATIFICATION: 7/6/15 TOTAL PAYMENTS BY WIRE: 2,597,993.00 Certified as to the accuracy of the wire transfers by: r.� % 0 /J Deputy CityT Date ii -(, 'V 5 Director of Finance Date Ln;z ` - ! 7 1✓ City Manager 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 7/61 5 1/1 REGULAR MEETING OF THE EL SEGUNDO CITY COUNCIL TUESDAY, JULY 7, 2015 — 5:00 PM 5:00 P.M. SESSION CALL TO ORDER — Mayor Fuentes at 5:02 PM ROLL CALL Mayor Fuentes - Present Mayor Pro Tem 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) None SPECIAL ORDER OF BUSINESS: Consideration and possible action to appoint the City Manager as the real property negotiator for purposes of potentially extending the lease term on the City's Residential Sound Insulation Program's offices located at 333 Main Street, El Segundo. MOTION by Council Member Fellhauer, SECONDED by Mayor Pro Tern Jacobson to appoint the City Manager as the real property negotiator for purposes of potentially extending the lease term on the City's Residential Sound Insulation Program's offices located at 333 Main Street, El Segundo. MOTION PASSED BY UNANIMOUS VOICE VOTE. 5/0 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: 15 57 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(d)(4): -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 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): -1- matters Negotiation of price and lease term for property located at 333 Main Street, El Segundo (City's current Residential Sound Insulation Offices. Real Property Negotiator: City Manager Property Owner /Lessor: David and DeRosa Physical Therapy, Inc. Adjourned at 6:55 PM 2 REGULAR MEETING OF THE EL SEGUNDO CITY COUNCIL TUESDAY, JULY 7, 2015 - 7:00 P.M. 7:00 P.M. SESSION CALL TO ORDER — Mayor Fuentes INVOCATION — Pastor Rob McKenna, The Bridge PLEDGE OF ALLEGIANCE — Council Member Atkinson PRESENTATIONS a) Southern California Edison update by Ray Pope, Region Manager and Jeffery Kennedy, District Manager spoke concerning power outages that occurred on June 8, 2015 and how residents can handle damage claims. 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) Spencer Bauer, resident, gave a power point presentation concerning Richmond Street Improvement Project. John Alden, resident, spoke concerning the Richmond Street Improvement Project. Sam Pena, Republic Disposal, invited the residents to the Bi- Annual Shred Event on Saturday, July 11, 2015 from 10:00 am — 1:00 pm. Andy Powell, President of the El Segundo Fire Fighter Association and Brandon Browning, President of the El Segundo Police Officer Association, the two organizations together donated $5000.00 to the upcoming Special Olympics. Sheila Fowler, resident and President of ES Rotary, thanked the Council and City for their help with the Movie in the Park event taking place on Saturday, August 1, 2015. Mike Robbins, resident, in favor of making salary cuts to the Fire and Police Departments. Lance JaRue, resident, not in favor of making salary cuts to the Fire and Police Departments. Melissa Brankovic, resident, not in favor of making salary cuts to the Fire and Police Departments. Rex Vian, resident, not in favor of making salary cuts to the Fire and Police Departments. Lisa Abbate, resident, not in favor of making salary cuts to the Fire and Police Departments. Tara Van Buskirk, resident, not in favor making salary cuts to the Fire and Police Departments. Nate Lemmerman, resident, not in favor of making salary cuts to the Fire and Police Departments. Marc Rener, resident, in favor of making salary cuts to the Fire and Police Departments. Nate Chittick, resident, not in favor of making salary cuts to the Fire and Police Departments. Marty Smith, resident, not in favor of making salary cuts to the Fire and Police Departments. CITY COUNCIL COMMENTS — (Related to Public Communications) Mayor Fuentes stated the City will post the 11 City Salary Survey, all City employee W2's for the year 2012/2013, Current Consumer Price Index, and the CalPERS rate history and in addition, the City is willing to post the offers made to each Association and each Associations counter offers with each Associations written permission. 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) Consideration and possible action regarding adoption of an Urgency Ordinance and Ordinance amending El Segundo Municipal Code Title 10, Chapter 5, Water Conservation, and a resolution declaring a Level 2 Drought Response. (Fiscal Impact: None) Mayor Fuentes stated this was the time and place to receive testimony regarding adoption of an Urgency Ordinance and Ordinance amending El Segundo Municipal Code Title 10, Chapter 5, Water Conservation, and a resolution declaring a Level 2 Drought Response. City Clerk Weaver stated that proper notice had been given in a timely manner and that written communication had not been received in the City Clerk's office. Greg Carpenter, City Manager, introduced the item. ll .E Stephanie Katsouleas, Public Works Director, gave a presentation. Mayor Fuentes announced the public hearing is now open for public comment. Mike Robbins, resident, not in favor of rushing into passing the Ordinances amending El Segundo Municipal Codes on Water Conservation. Marc Rener, resident, concerned with possible penalties for not conserving water and concerned with what will be used to benchmark water usage. LuAnn DeRing, resident, looking for clarification on the proposed Ordinances. Mayor Fuentes closed the Public Hearing Council discussion Stephanie Katsouleas, Public Works Director answered questions from Council and clarified the questions asked during public comments on this item. Mark Hensley, City Attorney, read by title only: ORDINANCE NO. 1508 AN URGENCY ORDINACE ENACTING WATER CONSERVATION MEASURES AND REQUIREMENTS IN ACCORDANCE WITH EMERGENCY REGULATIONS PROMULGATED BY THE CALIFORNIA STATE WATER RESOURCES CONTROL BOARD. MOTION by Council Member Fellhauer, SECONDED by Mayor Pro Tern Jacobson to adopt Ordinance No. 1508. MOTION PASSED BY UNANIMOUS VOICE VOTE. 5/0 Mark Hensley, City Attorney, read by title only: ORDINANCE NO. 1509 AN ORDINANCE ENACTING WATER CONSERVATION MEASURES AND REQUIREMENTS IN ACCORDANCE WITH EMERGENCY REGULATIONS PROMULGATED BY THE CALIFORNIA STATE WATER RESOURCES CONTROL BOARD. Council Member Fellhauer introduced Ordinance No. 1509. Second reading and the potential adoption of the Ordinance is scheduled for July 21, 2015. Mark Hensley, City Attorney, read by title only: 61 RESOLUTION NO. 4924 A RESOLUTION DECLARING A LEVEL 2 DROUGHT RESPONSE AND DIRECTING THE CITY MANAGER TO IMPLEMENT WATER CONSERVATION MEASURES IN ACCORDANCE WITH SECTION 10 -5 -22 OF THE EL SEGUNDO MUNICIPAL CODE. MOTION by Council Member Atkinson, SECONDED by Mayor Pro Tern Jacobson to adopt Resolution No. 4924. MOTION PASSED BY UNANIMOUS VOICE VOTE. 5/0 C. UNFINISHED BUSINESS 2. [CONTINUED ITEM #2 FROM JUNE 16, 2015 CITY COUNCIL MEETING] 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.) 3. [CONTINUED ITEM #3 FROM JUNE 16, 2015 CITY COUNCIL MEETING] 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 City Council Meeting.) (Fiscal Impact: None) OPENED ITEMS C2 AND C3 CONSECTIVELY Mark Hensley, City Attorney, introduced and outlined items C2 and C3. Council Discussion Mark Hensley, City Attorney, answered and clarified questions from Council. MOTION by City Council Member Atkinson, SECONDED by Mayor Pro Tern Jacobson to continue item C2 to the regular meeting on July 21, 2015MOTION PASSED BY UNANIMOUS VOICE VOTE. 5/0 An updated report on item C3 will be made at the July 21, 2015. D. REPORTS OF COMMITTEES, COMMISSIONS AND BOARDS C 62 4. Consideration and possible action regarding a recommendation from the Senior Citizen Housing Board Corporation Board of Directors to amend the Corporation's bylaws and reduce its authorized number of directors from seven to five. (Fiscal Impact: None) Greg Carpenter, City Manager, introduced the item. Jim Latta, Senior Housing Board, recommends approving the Board of Directors recommendation to amend the bylaws. MOTION by Council Member Fellhauer, SECONDED by Mayor Pro Tern Jacobson to approve the recommendation from the Board of Directors to amend the bylaws of the Senior Citizen Housing Board Corporation to reduce the authorized number of Directors from seven to five. MOTION PASSED BY UNANIMOUS VOICE VOTE. 5/0 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. Approve Warrant Numbers 3006491 through 3006733 on Register No. 18 in the total amount of $1,590,559.02 and Wire Transfers from 6/1/2015 through 6/14/2015 in the total amount of $3,251,512.07. 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. 6. Approve Regular City Council Meeting Minutes of June 16, 2015 and Special City Council Meeting Minutes of June 16, 2015. 7. Waive the bidding process per El Segundo City Code §1 -7 -10 and authorize the Fire Department to piggy -back on a Los Angeles County Internal Services Department Purchasing Division's contract RFB IS- 15200475 -1, for the purchase and preventative maintenance of four (4) replacement monitors manufactured by Zoll Medical Corporation. (Fiscal Impact: $117,338.46) 8. Waive informal bidding procedures and award a Services Agreement No. 4879 for custodial services for City of El Segundo building facilities to J &L Building Maintenance, in a form approved by the City Attorney, for $176,569 for the first year, with a 3% annual escalation for an additional four years. (Fiscal Impact: $176,569 the first year, with a proposed 3% annual escalation for an additional four years) 63 9. Authorize the City Manager to execute a first amendment to Agreement No. 4858A, in a form approved by the City Attorney, with MV Cheng & Associates to continue to provide professional, technical, and consulting support as the City's Interim Finance Director as stated in Exhibit A of the agreement, extend the term of the agreement to December 31, 2015 and modify and increase the total amount of the Agreement to $125,000.00. ($100,000.00 in General Fund and $25,000.00 in Internal Service Funds. (Fiscal Impact: An additional appropriation of $46,500.00 is needed in General Fund. An appropriation of $11,500.00 is needed in Internal Service Funds.) 10. ITEM MOVED TO A FUTURE MEETING. 11. Approve a thirty (30) day provisional appointment extension for the position of Interim Deputy City Clerk II in the City Clerk's office. (Fiscal Impact: No Fiscal Year 14/15 Impact) MOTION by Council Member Fellhauer, SECONDED by Mayor Pro Tern Jacobson to approve Consent Agenda items 5, 6 (corrected minutes), 7, 8, 9, and 11. MOTION PASSED BY UNANIMOUS VOICE VOTE. 5/0 F. NEW BUSINESS 12. COUNCIL CONSENSUS: ITEM MOVED TO A FUTURE MEETING. Greg Carpenter, City Manager, moved this item to the July 12, 2015 City Council Meeting. G. REPORTS — CITY MANAGER - None H. REPORTS — CITY ATTORNEY - None REPORTS — CITY CLERK — None J. REPORTS — CITY TREASURER — Not Present K. REPORTS — CITY COUNCIL MEMBERS Council Member Fellhauer — None Council Member Atkinson — Mentioned the Special Olympics coming up July 21 -26th and thanked all the volunteers and committee members. Check out the upcoming Herald for a schedule of events. Council Member Dugan - None Mayor Pro Tern Jacobson — None N. Mayor Fuentes — Thanked the Police Department, the Fire Department, Recreation and Parks Department and Public Works for all their time to help make the City's 4th of JUly a great one! Also thanked the sponsors who enable our City to have a wonderful 4th of July Celebration. Mentioned the Lundquist Tower at Torrance Memorial and thanked the Lundquist's for their generosity in donating the Tower. PUBLIC COMMUNICATIONS — (Related to City Business Only — 5 minute limit per person, 30 minute limit total) Mike Robbins, resident, spoke against our Public Safety Departments recent campaign pertaining to compensation. Mark Rener, resident, spoke concerning the recent use of El Segundo's Paramedic services and the practice of charging one's insurance company for the service. Spencer Bauer, resident, continued his presentation pertaining to the Richmond Street Improvement Project. Mayor Fuentes asked the City Manager to look into the Main Street Parking structure cleaning schedule and maintenance, as mentioned in Mr. Bauer's presentation. MEMORIALS — None ADJOURNMENT at 9:32 PM Tracy Weaver, City Clerk E 65 66 EL SEGUNDO CITY COUNCIL MEETING DATE: July 21, 2015 AGENDA STATEMENT AGENDA HEADING: Consent Agenda AGENDA DESCRIPTION: Consideration and possible action to authorize the City Manager, or designee, to record the Notice of Completion accepting completion of work for twenty -three (23) homes related to Project RSI 14 -25 (the City's Residential Sound Insulation Program's Group 67). (Final Contract Amount: $939,885.44) 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 -25; 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 67 (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: $988,383 Additional Appropriation: N/A Account Number(s): 116 - 400 - 0067 -8960 ORIGINATED BY: James S. O'Neill, Program Manager REVIEWED BY: Sam Lee, Director of Planning an hiding Safet APPROVED BY: Greg Carpenter, City Manager - 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 December 2, 2014 the City Council awarded a construction contract to Big West Construction Corporation for the construction of improvements at twenty -three (23) homes, commonly referred to as Group 67 of the RSI Program. Work at the twenty -five (23) homes has now been completed. The final contract amount is $939,885.44. 67 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 and/or FAA funds... " With sound insulation work now complete, a Title 21 Compliance Certificate would be required for these twenty -three (23) homes. .: 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 67 Project No.: RSI 14 -25 Notice is given pursuant to California Civil Code §§ 3093, et seq. that: 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 July 21, 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: Big West Construction Corporation 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 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 0 Exhibit A RSI Number Project Address 67.01 770 West Imperial Ave., Unit 37 67.02 943 Hillcrest Street 67.03 945 Hillcrest Street 67.04 938 Loma Vista Street 67.05 225 West Walnut Avenue 67.06 201 West Sycamore Avenue 67.07 818 Virginia Street 67.08 641 West Oak Avenue 67.09 709 Loma Vista Street 67.10 216 West Maple Avenue 67.11 948 Eucalyptus Drive 67.12 832 Eucalyptus Drive 67.13 861 Sheldon Street 67.14 508 East Walnut Avenue 67.15 510 East Walnut Avenue 67.16 524 East Sycamore Avenue 67.17 905 Maryland Street 67.18 1117 East Acacia Avenue 67.19 1129 East Acacia Avenue 67.20 1501 East Walnut Avenue 67.21 1419 East Walnut Avenue 67.22 835 Center Street 67.23 609 East Maple Avenue 71 72 Assessor's Parcel Number -- -- TO THE CITY OF 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 CCit " to be compatible land within the noise impact boundary around Los Angeles International Air ort. 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: James S. O'Neill Program Manager 73 EXHIBIT A Property Address: EMU 74 Planning & Building Safety Residential Sound Insulation Program Elected Officials: [DATE] Suzanne Fuentes, Mayor Carl Jacobson, Dave At inson,rem [PROPERTY OWNERS] Couna bar Marie Fellhauaruar, [MAILING ADDRESS] Michael Dugan, [MAILING ADDRESS] CouncllMember Tracy Weaver, [CITY], [STATE] [ZIP CODE] City Clerk Cristo Binder, City Treasurer Dear [PROPERTY OWNER], Appointed Officials: Greg Carpenter, Attached is a copy of the Title 21 Compliance Certificate for your property at: City Manager Mark D. Hensley, [PROPERTY ADDRESS], El Segundo, California 90245 City Altomey You are receiving this notice because your property received Residential Sound Department Directors: Insulation Improvements through the City of El Segund.o's Residential Sound Deborah Cullen, Finance Insulation (RSI) Program. Kevin Smith, Fire Chief Martha man Re sources Human Re This Title 21 Compliance Certificate serves as notice that the property has been Debra Brighton, Services Library Se determined to be compatible land within the noise impact boundary around Los Sam Lee, Planning and Angeles International Airport pursuant to Section 5014 of the California Airport Noise Building Safely Mitch Tavera, Standards. Police Chief Stephanle Kalsouleas, Push tit, Meredith Petit, If you have any questions, please contact nee at (310) 524 -2352 or via einail at Recreation d Parks 1onclll amelsegundo.org. Respectfully, www.elsegundo.org James S. O'Neill Program Manager 333 Main Street, Unit A; El Segundo, California 90245 Phone (314) 524 -2352 FAX (310) 662 -4052 75 76 EL SEGUNDO CITY COUNCIL MEETING DATE: July 21, 2015 AGENDA STATEMENT AGENDA HEADING: Consent Agenda AGENDA DESCRIPTION: Consideration and possible action to authorize the City Manager, or designee, to record the Notice of Completion accepting completion of work for twenty -one (21) homes related to Project RSI 14 -26 (the City's Residential Sound Insulation Program's Group 68). (Final Contract Amount: $455,397.84) 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 -26; 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 68 (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: $496,100 Additional Appropriation: N/A Account Number(s): 116- 400 - 0068 -8960 ORIGINATED BY: James S. O'Neill, Program Manager REVIEWED BY: Sam Lee, Director of Planning and uilding Safet APPROVED BY: Greg Carpenter, City Manager yik. 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 December 2, 2014 the City Council awarded a construction contract to Big West Construction Corporation for the construction of improvements at twenty -one (21) homes, commonly referred to as Group 68 of the RSI Program. Work at the twenty -one (21) homes has now been completed. The final contract amount is $455,397.84. 77 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 and/or FAA funds... " With sound insulation work now complete, a Title 21 Compliance Certificate would be required for these twenty -one (21) homes. 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 68 Project No.: RSI 14 -26 ' 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 July 7, 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: Big West Construction Corporation 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 79 :1 Exhibit A RSI Number Project Address 68.01 720 East Imperial Avenue, Unit 1 68.02 720 East Imperial Avenue, Unit 2 68.03 720 East Imperial Avenue, Unit 3 68.04 720 East Imperial Avenue, Unit 4 68.05 720 East Imperial Avenue, Unit 5 68.06 720 East Imperial Avenue, Unit 6 68.07 722 East Imperial Avenue, Unit 1 68.08 722 East Imperial Avenue, Unit 2 68.09 722 East Imperial Avenue, Unit 3 68.10 722 East Imperial Avenue, Unit 4 68.11 722 East Imperial Avenue, Unit 5 68.12 722 East Imperial Avenue, Unit 6 68.13 227 East Oak Avenue, Unit 101 68.14 227 East Oak Avenue, Unit 201 68.15 227 East Oak Avenue, Unit 301 68.16 227 East Oak Avenue, Unit 102 68.17 227 East Oak Avenue, Unit 202 68.18 227 East Oak Avenue, Unit 302 68.19 227 East Oak Avenue, Unit 103 68.20 227 East Oak Avenue, Unit 203 68.21 227 East Oak Avenue, Unit 303 82 Assessor's Parcel Number TO THE CITY OF LOS ANGELES TITLE 2:1 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 n 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: James S. O'Neill Program Manager RN EXHIBIT A Property Address: __ APN: 0 Planning & Building Safety .residential Sound Insulation Program Elected Officials: [DATE] Suzanne Fuentes, Mayor Carl Jacobson, Mayen Pro Dave Atkinson, on, [PROPERTY OWNERS] Chauer, Member Marie Felfha Fell MAILING ADDRESS] eougmbar Dugan, Michael Dugan, [MAILING ADDRESS] Council Membor Tracy Weave [CITY], [STATE] [ZIP CODE] City Clerk Crista Binder, City Treasurer Dear [PROPERTY OWNER], Appointer! Officials: Greg Carpenter, Attached is a copy of the Title 21 Compliance Certificate for your property at: City Manager Mark D. Hensley, [PROPERTY ADDRESS], El Segundo, California 90245 City Attorney You are receiving this notice because your property received Residential Sound Department Directors: Insulation Improvements through the City of El Segun.do's Residential Sound Deborah Cullen, Finance Insulation (RSI) Program. Kevin Smith, Fire Chief Martha an Resources e, H Human R This Title 21 Compliance Certificate serves as notice that the property has been Debra Brighton, Library Services determined to be compatible land within the noise impact boundary around Los Sara Lee, nning and Angeles International Airport pursuant to Section 5014 of the California Airport Noise BuiidingSatety Mitch Tevera, Standards. Police Chief Stephanie Kalsouleas, Public Petit, Works Meredith If you have any questions, please contact me at (310) 524 -2352 or via email at Recreation d Parks i onei ll�t7,elsegtindo.org. Respectfully, www.elsegundo.org James S. O'Neill Program Manager 333 Main Street, Unit A, El Segundo, California 50245 Phone (310) 524 -2352 FAX (310) 562 -4052 8 EL SEGUNDO CITY COUNCIL MEETING DATE: July 21, 2015 AGENDA STATEMENT AGENDA HEADING: Consent Agenda AGENDA DESCRIPTION: Consideration and possible action to authorize an increase to Metron- Farnier, LLC's blanket purchase order from $100,000 to $130,000 for the purchase of water meters. (Fiscal Impact: None) RECOMMENDED COUNCIL ACTION: 1. Authorize an increase of $30,000 to the blanket purchase order #71 -00209 to Metron- Farnier, LLC from $100,000 to $130,000 for the purchase of water meters. 2. Alternatively, discuss and take other possible action related to this item. ATTACHED SUPPORTING DOCUMENTS: None FISCAL IMPACT: Within Adopted Budget Amount Budgeted: $150,000 Additional Appropriation: No Account Number(s): 501- 400 - 7102 -5207 (Water Enterprises Fund) ORIGINATED BY: James Turner, Water Supervisor REVIEWED BY: Stephanie Katsouleas, Public Works Director APPROVED BY: Greg Carpenter, City Manager BACKGROUND AND DISCUSSION: The city's water system includes thousands of water meters that register water usage by residents and businesses. As these meters age, they become less accurate and are prone to failure. This ultimately results in lost revenue because meters "slow down" in registering water usage. The Water Division routinely performs repair and maintenance activities to keep the system intact and operating correctly, which includes the water meter replacement program. Aging meters are identified and replaced with new meters, the timing of which depends on the type and size of meters being used (e.g., smaller meters typically last longer; larger meters have a shorter life expectancy). Newer meters also have the potential to contain more current technologies, allowing for increased register accuracy, longer shelf life, and less costly operational expense. The FY 2014/15 adopted budget authorized expenditures totaling $150,000 for water meters and related purchases. These funds have been allocated as follows: • A $100,000 blanket purchase order was issued to Metron - Farrier, LLC for the purchase of potable water meters (September 2014). • A $12,000 purchase order was issued to Aqua- Metric Sales Co. for purchase of reclaimed meters (January, 2015). 8 Therefore, more than $30,000 is still available for additional potable water meter purchases. The Metron - Farrier purchase order is currently exhausted due to this year's large number of meter replacements. To continue the implementation of the water meter replacement program for the rest of the fiscal year, staff recommends that City Council to approve a $30,000 increase to the blanket purchase order to Metron- Farnier using the remaining funds available in the water enterprises fund account #501- 400 - 7102 -5207. Pa RN EL SEGUNDO CITY COUNCIL MEETING DATE: July 21, 2015 AGENDA STATEMENT AGENDA HEADING: Consent Agenda AGENDA DESCRIPTION: Consideration and possible action to authorize the City Manager to execute a contract with William Avery & Associates, Inc. in an amount not to exceed $41,800 (Fiscal Impact: $41,800) RECOMMENDED COUNCIL ACTION: 1. Authorize the City Manager to execute a contract with an executive search firm for purposes of recruiting a new Director of Finance and Fire Chief, to commence work on or about August 1, 2015. 2. Alternatively, discuss and take other actions related to this item. ATTACHED SUPPORTING DOCUMENTS: William Avery & Associates Proposal FISCAL IMPACT: $$41,800 Amount Budgeted: None Additional Appropriation: N/A Account Number(s): �IQ ORIGINATED BY: Martha A. Dijk�it�, Human Resources Director OA REVIEWED BY: Greg Carpenter, City Manager, APPROVED BY: Greg Carpenter, City Manager BACKGROUND AND DISCUSSION: Fire Chief Kevin Smith has announced his retirement effective October 2015. Chief Smith has served the City in this critical role for over eight (8) years. Additionally, the Director of Finance has been vacant since May 28, 2015 due to Deborah Cullen's resignation. The City has since contracted with an Interim Finance Director who will serve in this capacity until the position is filled. In order to conduct a successful and effective recruitment and selection process for each of these positions, staff felt this would best be accomplished through the services of an Executive Search firm. The benefits associated with contracting with a Search Firm include 1) working with experts in executive recruitment who can develop a position profile based on an organizational assessment and interviews with stakeholders 2) allocating the staff and means to conduct comprehensive and aggressive outreach efforts 3) ensuring the assessment, selection, and screening processes are designed to identify ideal candidates, and 4) obtaining guaranteed placements for the first year. Proposals were received from reputable and well established firms and interviews were conducted. Factors considered during the selection process included the firm's qualifications and expertise, recruitment strategy and approach, and cost. :• The firm of William Avery & Associates, Inc. has been selected to conduct these recruitments. Avery Associates has been in business for over thirty (30) years and specializes in Executive searches. They have a proven track record of successful Executive placements in local agencies throughout the State. Their attached proposal outlines the scope of services which includes the recruitment methodology as well as the estimated timeline necessary to complete the recruitment process for both vacancies. There are efficiencies associated with conducting both recruitments in tandem as this will reduce costs associated with required travel and meetings with stakeholders. Additionally, Mr. William Avery has informed us that he will serve as the Project Lead for these recruitments rather than his Associate, Mr. Paul Kimura, as originally noted on the attached proposal. The costs associated for these services can be absorbed within the existing funds in the City Manager's and Human Resources Department's budget, therefore no additional appropriation is requested. .N PROPOSAL FOR THE CITY OF EL SEGUNDO RECRUITMENTS FOR THE DIRECTOR OF FINANCE AND FIRE CHIEF William Avery & Associates, Inc. — Overview William Avery & Associates, Inc. (Avery Associates) is a successful and service focused Management Consulting firm based in Los Gatos, California. Incorporated in 1982, the firm specializes in Executive Search, Labor Relations and Human Resources/Management Consulting. The firm currently includes two Principals and several key consultants. Bill Avery, the founder of Avery Associates, heads the firm. He oversees the Labor Relations practice and leads key searches. Paul Kimura is the Principal who oversees the Executive Search and Recruitment practice. Key staff members include Ann Slate and Cris Piasecki, who support the search practice and the firm's administrative staff includes Tina Liu, the Finance /Contracts Administrator, and Jackie Collins and Jessica Towner. Temporary staff as needed augments the team. Mr. Avery, having served in the past as a City Manager, provides the firm with direct experience and knowledge of city administration. Mr. Kimura's expertise in executive, technical and business recruitment, which he gained during his nineteen years of high technology experience, provides the basis for many of the recruitment strategies and tactics utilized by the firm. Collectively and combined, the firms Principals offer exceptional expertise in the area of public sector recruitment and consulting. Firm Qualifications /Experience — What Differentiates Avery Associates Exceptional service delivery and a very high quality work product provide excellent results for our clients. This begins with the initial client meetings, which lead to detailed timelines for deliverables followed by weekly recruitment status updates following initiation of the search. Our candidate outreach efforts are professionally and confidentially conducted. The evaluation materials we provide clients are routinely characterized as accurate, comprehensive and of very high quality. We believe more so than any other public sector recruitment firm. This is largely based on our interview system utilizing behavioral interview techniques, which we describe in our recruitment plan. This leads to a quality product with excellent end results for our clients. The service element is based on two factors: The first is the collective service philosophy from all of our organizational team members. They are each dedicated to providing service and support to clients. The second factor is based on the high level of engagement and participation from the firm Principals in every search assignment. This hands -on involvement includes client interface, identifying and developing the ideal candidate profile and position specification, development of the search strategy, candidate outreach, interviewing and assessment, completion of reference interviews, candidate presentation, final interview facilitation and when desired, negotiation of employment terms with the successful candidate. 91 Recruitment Team for the City of El Segundo Paul Kimura will serve as the Project Lead in this assignment and will be supported by the administrative team of Avery Associates. Mr. Kimura will be personally involved in client meetings, development of the ideal candidate profile and search strategy, candidate outreach, interview and assessment of candidates, presentation of candidates, attendance at final interviews, final referencing and will be available throughout the search process to provide other related consulting services. Mr. Kimura will have involvement in all aspects of this recruitment with the exception of clerical and administrative tasks. Recruitment Plan I. Position Profile and Organizational Assessment di The initial assessment phase is a critical component of the search process. Mr. Kimura will meet with the hiring authority, key policy makers and stakeholders to discuss the organizational needs and position requirements. We also feel it's valuable to meet, at the outset, with command staff and labor management to secure their input and support in the process. Our goal for this aspect of the recruitment process is to: • Understand the City's priorities for these positions. • Develop a clear understanding and consensus on the expertise, experience, education, performance attributes and operational style of the ideal candidate to help ensure a successful match. • Discuss the goals, objectives, deliverables, and challenges related to these positions. Gain insight of the various organizational dynamics and departmental issues that exist within the organization. • Identify the compelling aspects to these opportunities.. The formal position description and ideal candidate profile would be developed from the above discussions and incorporated into the formal position announcement. The candidate profile is also utilized in various other means as a marketing tool, for advertising copy, postings, and for other announcements. 92 II. Search Strategy and Outreach Efforts The search strategy is developed in conjunction with the organizational assessment. We feel it is critical to develop a high level of visibility with a comprehensive outreach program supplemented by a focused targeted recruitment approach. We would incorporate the following elements into these searches: Development and contact of a targeted candidate list based on our extensive database of current recruitment contacts, referrals and recommendations from key sources and other current and former incumbents or related personnel who have extensive contacts and networks in each of the areas. • Job postings on Internet -based job boards, association -based web sites that are unique to specific disciplines and /or to the public sector in general. • Original research, which consists of identification and contact of current incumbents or other candidates who meet the various profile, but are not actively seeking other employment. This is the crux of our direct and aggressive phone and email outreach approach. It's our experience that despite extensive mailing, postings and announcements, many will not know of a position being available. • Print advertising in various periodicals related to the public sector or to these disciplines. Regular distribution magazines such as JOBS AVAILABLE magazine get a high degree of visibility. • Development and distribution of the comprehensive position announcement to various city, county, and state departments, as well as agencies throughout the state and country. III. Candidate Assessment Our assessment process involves several "tiers" of evaluation. Candidates responding to these positions will be initially evaluated based on their resume and if appropriate, a phone "screening" by a firm Consultant. Candidates who pass the initial "qualifying" criteria are then scheduled for a formal face -to -face interview with the primary consultant in charge of the project. These extended personal interviews typically take one hour and a thorough discussion of their experience, accomplishments, management philosophy and interpersonal style takes place. In interviewing candidates, we utilize a methodology based on "behavioral" interview techniques. Fundamentally, this approach explores a candidate's past accomplishments and experiences. The philosophy here is that the best indicator of future performance is assessing past behavior. This methodology allows the firm to "project" how a candidate SCI 93 would approach and address challenges in the new position and help ensure a positive match with the organization. Those individuals who best fit the position requirements will have a Candidate Assessment Report developed by the project lead that conducted the interview. Additionally, two preliminary, initial reference interviews are performed on these candidates. The reference interviews provide our clients with additional insights on the candidate's "behavior" and style. IV. Candidate Presentation Upon completion of formal interviews and preliminary reference interviews, a recommendation of finalist candidates for your consideration is made. We feel our extensive screening, interview, and initial reference process combined with the candidate insights provided by our detailed Candidate Assessment Report gives our clients an in -depth and detailed background on each recommended finalist. Our clients frequently comment on the value this background provides. The final candidates are presented in our candidate presentation "book." Each recommended finalist will have a candidate profile consisting of a candidate summary sheet, a cover letter, resume, the Candidate Assessment Report (based on the formal interview), and two initial candidate reference interviews. Others who have interviewed or given secondary consideration will also be included in the book. V. Selection Process Once the final candidate interview group is identified, we will assist in the structuring of the interview process and coordinate the interview scheduling activity. Our firm will also provide candidates with guidance related to travel planning, hotel accommodations, as well as other interview planning issues. VI. Position Closure Based on the firm's experience in human resource management and executive search, we are able to assist our clients in the formulation of appropriate compensation and other employment arrangements. We will be available throughout our retention to assist in this process. ., Timeline Our experience reflects the approximate timeline from initial client meeting to offer acceptance will take a minimum of four months. The key activities and timeframes are as follows: Initial client meeting to identify and develop specifications week 1 Develop job announcement & secure related materials from client week 3 Advertising developed and website postings week 4 Print and distribute job announcement week 5 Outreach period week 6 -12 Assessment /evaluation/referencing of candidates week 11 -14 Candidates presented and discussed with clients week 15 Final interviews week 16 -17 Offer extended week >17 *This timeline represents a standard recruitment process. Typically, more than one recruitment conducted simultaneously is best coordinated with a lead /lag schedule of two to four weeks. Consulting Fee Our consulting services are based on two elements; the Professional Services Fee and reimbursable out -of- pocket expenses directly related to the recruitments. Based on the services described in this proposal, the Professional Services Consulting Fee for these assignments would be $31,800. We would provide our first consulting invoice in the amount of $10,800 at the outset of the search. A second invoice of $7,000 will be billed upon presentation and acceptance of final candidates for the first search. A third invoice of $7,000 will be billed upon presentation and acceptance of final candidates for the second search. A final invoice of $7,000 will be billed at the completion of both assignments. Our invoicing models ensures the firm will remain totally committed to the City throughout the duration of the search as the final invoice is not submitted until the City has an accepted candidate. In addition, normal and direct out -of- pocket expenses associated with recruitments are charged back to the client. Expenses for this assignment would be a not -to- exceed amount of $10,000 without the express consent of the City. These expenses include: advertising, clerical time, supplies, printing, telephone, postage, summary background evaluations, and consultant travel for client discussions, meetings and local and out -of -area candidate interviews. The expense budget would not include interview or logistical costs for the final interviews conducted by the City. All expense items will be detailed and billed on a monthly basis. W_ 95 Guarantees and Ethics Whenever William Avery & Associates, Inc. is retained; we make several guarantees and commitments to a client. Due to our experience, knowledge and success within the management - consulting field, we assure a client that we will only present candidates who meet a substantial majority of the ideal qualifications that you have outlined. We are also committed to continue our search efforts until a successful candidate is employed. It is also our practice to replace a candidate who may voluntarily resign during the first year of his /her employment. This same commitment applies if the client finds it necessary to terminate or to request the resignation of the selected individual in the first year for any reason. In either case, we invoice a client only for out -of- pocket expenses incurred in identifying a replacement. r. Avery Profile William Avery William Avery founded his successful management consulting firm in 1981. He has directed William Avery & Associates in service as a Labor Relations and Executive Search consultancy, serving personally as a chief negotiator, trainer, and representative in grievance and disciplinary matters. A specialist and widely recognized expert in employer - employee relations, he has served as a City Manager (Los Gatos) and Assistant City Manager. While City Manager, he was President of the Santa Clara County City Manager's Association and Chair of the County Employee Relations Service. Bill has lectured at De Anza College, San Jose State University, and Stanford University, and regularly makes presentations for the League of California Cities, CALPELRA, and other public sector organizations. Building on his personal track record of success, he expanded the firm's focus to include increased emphasis on public and private sector search. He added proven industry professionals with expertise in these areas. The result has been to create an exceptionally strong management consulting firm, now known as Avery Associates, with the expertise to provide the full range of services required for successful public or private sector executive search. A key measure of the firm's success has been the many long -term relationships that he and his staff have established with clients. Bill holds B.A. in Political Science and an MPA from San Jose State University, where he was graduated with highest honors. 97 Avery Profile Paul Kimura Paul Kimura brings a unique combination of recruitment and business experience to Avery clients. Paul is involved in leading Avery's public sector professional searches. He has been both a corporate recruitment director and HR director for a number of high technology companies, ranging from Fortune 500 firms such as Novell and National Semiconductor to a Silicon Valley start-up. His proven recruitment and HR generalist skills help him bring forward the best available candidates and properly assess their skills and "fit" with client organizations. Indeed, many of the recruitment strategies and tactics incorporated into the Avery search process are a direct result of Paul's extensive recruitment experience in the high technology industry. Paul has been a successful HR consultant, guiding clients through all aspects of Human Resources functions — compensation & benefits, employee and management training, performance management, and termination issues. He is skilled in areas such as strategic planning, executive coaching, separation negotiation, and organizational assessment and design. It's another service that Avery Associates is able to offer its clients because of the unique background of its principals — and Paul's extended skill set in Human Resources underscores the fact that Avery professionals "have been there" and understand your needs from a personal perspective. Paul holds a B.S. degree in Business Administration from San Jose State University. He is active in professional HR organizations and in the community, where he has worked with a number of education, youth service, civic, business, and cultural organizations. "Just as Avery looks to form long - lasting relationships with its clients, I believe in making the same commitments within my community." WI EL SEGUNDO CITY COUNCIL AGENDA STATEMENT AGENDA DESCRIPTION: MEETING DATE: July 21, 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 ( "ESMC ")§ 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: Bid documents for the Park Vista deck repair project were sent to three contractors on May 13, 2015 and two bids were received the following week on May 21, 2015. Because the bids were higher than expected, Staff sought additional bids for the project and received one additional quote, which was approximately 20% less. Staff presented the results, options and recommendations to the Park Vista Board in June at which time the Board rejected moving forward due to the higher than expected cost. Members of the Board requested a meeting with the Public Works Director and possibly the structural engineer to better understand the project before determining whether to proceed. A meeting was set up for Tuesday July 14th to walk the project and explain the options available. Staff is in the process of determining its next steps 10 based on the outcome of site meeting with the board. 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. 100 EL SEGUNDO CITY COUNCIL MEETING DATE: July 21, 2015 AGENDA ITEM STATEMENT AGENDA HEADING: Consent Agenda AGENDA DESCRIPTION: Consideration and possible action regarding authorizing the City Manager to enter into a one -year lease with a three one -year options with Davis & DeRosa Physicial Therapy, Inc., for the continuation of use of approximately 1,620 square feet of space located at 333 Main Street to house the City of El Segundo's Residential Sound Insulation (RSI) Program Office. (Fiscal Impact: Approximately $80,000: $ 8,000 for FY2014 -2015 budget and $72,000 for FY2015- 2016 budget.) RECOMMENDED COUNCIL ACTION: 1. Authorize City Manager to enter into a lease agreement. 2. Alternatively, discuss and take other action related to this item. ATTACHED SUPPORTING DOCUMENTS: 1. Air Photo /Map 2. Photographs of 333 Main Street Exterior FISCAL IMPACT: Amount Budgeted: $72,000 (FY2015 -2016 Budget) Additional Appropriation: $8,000 (FY2014 -2015 Budget) Account Number(s): 001 - 400 - 2901 -6116 (Building Lease Charge) PREPARED BY: Mickie Tagle, Senior Executive Assistant REVIEWED BY: James O'Neill, RSI Program Manager David Ding, Deputy City Attorney APPROVED BY: Greg Carpenter, City Manage BACKGROUND & DISCUSSION: The City of El Segundo first leased the subject office space in August 2008. The current lease term expires on August 11, 2015. The office, selected for its downtown location, convenience for residents, and proximity to City Hall, has housed the Residential Sound Insulation (RSI) Program Office for the past seven years. The RSI staff was originally relocated due to the lack of adequate office, meeting and storage space at City Hall to accommodate the growing needs of the RSI Program. Program staff has doubled since 2008, from five positions to the current 10 positions. Additionally, the site provided increased visibility and improved public access to the office of this important program. The negotiated rent is comparable to similar properties in the surrounding rental market. This site continues to offer the best overall combination of: Price — $3.36 per square foot / month gross rent 1 1 Location — directly across the street from City Hall with good visibility to the public Parking — the location is within walking distance of the City /99 Cent's parking structure 101 • Availability — the space is available now and no additional interior improvements are needed. • Size /configuration — the space is approximately 1,620 square feet, located on the ground floor and is well laid to provide a lobby / reception area, meeting space, office space and storage. The terms of the proposed lease is as follows: Price - $3.36 per square foot / month gross rent (meaning there are no added property taxes, maintenance expenses or building insurance charges.) The fixed rental adjustment, base rent shall increase by 3% each year. Term — one year with three one -year options In addition to the lease cost, an estimated $500.00 per month will be necessary for utility and miscellaneous costs. Staff had contacted the FAA regarding the possibility of their funding the lease of office space. Unfortunately, based on the response received, it is impractical to use FAA funds for this purpose. As Los Angeles World Airport (LAWA) funds for the RSI program are subject to the same use restrictions as FAA funds, the use of LAWA funds is also impractical. Based on all of the above information, staff recommends that the City Council authorize the City Manager to enter into a lease agreement. 102 0:1� rr r in rrmN.7 LLY ATE go r r Will 383 Main St:.4 Al PARKING F 7.7 rI 0, p W r- w evw t 403 'C 104 J ` I 01 r 1 l� M EL SEGUNDO CITY COUNCIL MEETING DATE: July 21, 2015 AGENDA STATEMENT AGENDA HEADING: Consent Agenda AGENDA DESCRIPTION: Consideration and possible action regarding adopting of an ordinance to modify El Segundo Municipal Code Title 10, Chapter 5, Water Conservation (Fiscal Impact: None) RECOMMENDED COUNCIL ACTION: 1. Waive second reading and adopt Ordinance No. 1509 amending ESMC Title 10, Chapter 5, Water Conservation. 2. Alternatively, discuss and take other possible action related to this item. ATTACHED SUPPORTING DOCUMENTS: Proposed Ordinance No. 1509 FISCAL IMPACT: None Amount Budgeted: $0 Additional Appropriation: N/A Account Number(s): N/A ORIGINATED BY: Stephanie Katsouleas, Public Works Directo REVIEWED BY: David King, Assistant City Attorney APPROVED BY: Greg Carpenter, City Manager BACKGROUND AND DISCUSSION: On July 7, 2015, the City Council introduced an ordinance amending the El Segundo Municipal Code in regards to water conservation. The proposed amendments include: • Eliminate all washing/hosing down of sidewalks and driveways. • Limit watering to two (2) days per week. • Prohibit landscape watering during and within 48 hours after predicted rainfall. • Prohibit watering of landscape medians with ornamental turf unless using recycled water. Staff recommends the City Council to waive second reading and adopt Ordinance No. 1509 amending ESMC Title 10, Chapter 5, Water Conservation. 12 107 1: ORDINANCE NO. 1509 AN ORDINANCE ENACTING WATER CONSERVATION MEASURES AND REQUIREMENTS IN ACCORDANCE WITH EMERGENCY REGULATIONS PROMULGATED BY THE CALIFORNIA STATE WATER RESOURCES CONTROL BOARD. The City Council of the City of El Segundo does ordain as follows: SECTION 1: The City Council finds as follows: A. On January 17, 2014, the Governor issued a proclamation of a state of emergency under the California Emergency Services Act based on drought conditions; B. 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; C. On April 1, 2015, the Governor issued an Executive Order that, in part, directs the State Water Resources Control Board (the "Board ") to impose restrictions on water suppliers to achieve a statewide 25% reduction in potable urban usage through February 2016; require commercial, industrial, and institutional users to implement water efficiency measures; prohibit irrigation with potable water of ornamental turf in public street medians; and prohibit irrigation with potable water outside newly constructed homes and buildings that is not delivered by drip or microspray systems; D. In response to the Governor's Executive Order, on May 18, 2015, the Board enacted emergency regulations amending California Code of Regulations Title 23, §§ 863, 864, 865, and 866 ( "Emergency Regulations "). Absent additional action taken by the Board, the Emergency Regulations will expire February 13, 2016; E. The drought conditions that formed the basis of the Governor's emergency proclamations continue to exist; F. The present year is critically dry and has been immediately preceded by two or more consecutive below normal, dry, or critically dry years; G. 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 109 conservation; H. Recent court decisions have reduced the amount of water supplied through the State Water Project; Rainfall in southern California is below last year's levels and annual averages; J. Reservoir levels statewide are well below average and below capacity; K. Water conservation is crucial to the continued delivery of clean, safe water to El Segundo residents and customers; L. The City will continue to offer educational materials, to promote best practices for water conservation, and to support the use of water conserving household fixtures to its users and customers in efforts of encouraging water use efficiency practices and preventing the waste of available water resources. This Ordinance sets forth water use efficiency practices and water conservation measures that will be implemented and followed by all applicable users within the service boundaries of the City; M. Article XI, § 7 of the California Constitution empowers the City to enact and enforce ordinances regulating conditions that may be public nuisances or health hazards, or that promote social, economic, or aesthetic considerations; N. In accordance with Water Code § 375, the City Council finds it is in the public interest to adopt this Ordinance for water conservation purposes; and O. In accordance with the Emergency Regulations and other applicable law, the City Council desires to amend the El Segundo Municipal Code ( "ESMC ") to achieve the conservation standards established by the Board. SECTION 2: ESMC § 10 -5 -1 is amended to read as follows: 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 implementing contingency measures in the event of water shortages. The provisions of this chapter are mandato unless it is found that the use of water is necessary to comply with 2 110 a term or condition in a permit issued by a state or federal agency, or is otherwise exempt by this chapter. SECTION 3: ESMC § 10 -5 -5 is amended to read as follows: 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: 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 egui ped with a positive shut -off nozzle, a bucket, or when a drip /micro - irrigation system /equipment is used. Irrigation of nursery propagation beds is permitted at any time. Watering of livestock is permitted at any time. SECTION 4: ESMC § 10 -5 -6 is amended to read as follows: 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 3 111 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. SECTION 5: ESMC § 10 -5 -10 is amended to read as follows: 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, dise#argiag to the stoFmwater- drainage - system. SECTION 6: ESMC § 10 -5 -16 is amended to read as follows: 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. SECTION 7: ESMC § 10 -5 -17 is amended to read as follows: 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. SECTION 8: ESMC § 10 -5 -18 is amended to read as follows: 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. El 112 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. SECTION 9: ESMC § 10 -5 -22 is amended to read as follows: 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 declarinq a Level 1, Level 2, Level 3 or Level 4 Drought Response by resolution. A. Level 1 Drought Response. Declarinq 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. Declarinq a Level 2 Drouqht Response condition demonstrates the need to ., „ ,. ° ,....,, . During reduce the City's water demand between10 /o and 20 % g 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 days per week. The City Council may assign the days by resolution and the assigned days shall be 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 to ensure the health of trees and shrubs. 3. Cease washing down any sidewalks and driveways, or other outdoor surfaces such as buildings, with potable water. I.1 113 4. Cease allowing runoff when irrigating with 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 3 Drought 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 mandato conservation measures: 1. Limit residential and commercial landscape irrigation to no more than one day per week. The City Council may assign the day by resolution and the assigned day shall be posted by the city. This section shall not _ appl�yto commercial growers or nurseries. 2. Stop filling or re- filling ornamental lakes or ponds, except to the extent needed to sustain a uatic life provided that such animals are of significant value and have been actively managed within the water featurel2rior to declaration of a drought response level under this ordinance. 3. Limit filling swimming pools, spas, hot tubs, Jacuzzis, or children's wading Dols is limited to not more than one day per week. The City Council may assign the day by resolution and the assigned day shall-be-posted by the 2i L• 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 with_ -out a drip irrigation or micro -spray sum is prohibited. This restriction shall not apply to the following categories of use unless the city has determined that recycled water is available and 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 protection agency having jurisdiction over the property to be irrigated; c. Maintenance of existing landscaping for erosion control; 114 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 preens, provided that such irrigation does not exceed two (2) days per week according to the schedule established under Subsection B; f. 'Watering of livestock; and g. Public works projects and actively irrigated environmental mitigation rp ojects. 2. Repair all water leaks within twenty -four (24) hours of notification by the city unless other arrangements are made with the City Manager. I 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 carwashes 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 ro'ect: 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 proffiect will be offset prior to the provision of a new water meters 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 fora 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. a ice■ :�� •* w w . * w��e}:�S .r ■ O ■ ■ .. s� - R w � ■ w ■ ■ A C R :■- ww w ■ 115 A . wi . r r M r i w r r rid A ♦ w A rrr �. ri t y �i r■ i i r w i i WN72401 r r r r SECTION 10: ESMC § 10 -5 -24 is amended to read as follows- 10-5-24: ENFORCEMENT: Any violation of this chapter is a misdemeanor punishable by up to 30 days in county fail and/or a fine of use to $1,000. 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 °litho t 10mitat;e th;s co It is the code enforcement officer's responsibility to enforce this chapter. SECTION 11: Environmental Review. This ordinance is exempt from review under the California Environmental Quality Act (California Public Resources Code §§ 21000, et seq., "CEQX) and CEQA Guidelines (14 California Code of Regulations §§ 15000, et seq.) because it establishes rules and procedures to clarify existing policies and practices related to water service; does not involve any commitment to a specific project which could result in a potentially significant physical impact on the environment; and constitutes an organizational or administrative activity that will not result in direct or indirect physical changes in the environment. This Ordinance is adopted, in part, for protection of the environment. Accordingly, this Ordinance does not constitute a "project" that requires environmental review (see specifically CEQA Guidelines § 15378(b)(2, 5)). Moreover, even if the Ordinance were a project, it constitutes a specific action needed to mitigate an emergency in accordance with CEQA Guidelines § 15269(c) and would be categorically exempt from additional environmental review. SECTION 12: Construction. This Ordinance must be broadly construed in order to achieve the purposes stated in this Ordinance. It is the City Council's intent that the provisions of this Ordinance be interpreted or implemented by the City and others in a manner that facilitates the purposes set forth in this Ordinance. SECTION 13: Enforceability. Repeal or supersession of any provision of the ESMC does not affect any penalty, forfeiture, or liability incurred before, or 116 preclude prosecution and imposition of penalties for any violation occurring before this Ordinance's effective date. Any such repealed or superseded part will remain in full force and effect for sustaining action or prosecuting violations occurring before the effective date of this Ordinance. SECTION 14: Validity of Previous Code Sections. If this entire Ordinance or its application is deemed invalid by a court of competent jurisdiction, any repeal or amendment of the ESMC or other ordinance by this Ordinance will be rendered void and cause such previous ESMC provision or other the city ordinance to remain in full force and effect for all purposes. SECTION 15: Severability. 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 16: Publication. The City Clerk is directed to certify the passage and adoption of this Ordinance; cause it to be entered into the City's book of original ordinances; make a note of the passage and adoption in the records of this meeting; and within ten (10) days after the passage and adoption of this Ordinance, cause it to be published in a newspaper of general circulation in accordance with California law. SECTION 17: Effective Date. This Ordinance will become effective on the thirty -first (31 st) day after its adoption. PASSED AND ADOPTED this day of 2015. ATTEST: Tracy Weaver, City Clerk APPROVED AS TO FORM: 0 Mark D. Hensley, City Attorney Suzanne Fuentes Mayor 117 118 EL SEGUNDO CITY COUNCIL MEETING DATE: July 21, 2015 AGENDA STATEMENT AGENDA HEADING: Consent Agenda AGENDA DESCRIPTION: Consideration and possible action regarding approval of an amendment to the Robert Half International Inc. contract for temporary staffing in Building and Safety for License / Permit Specialist I. (Fiscal Impact $20,000.00) Contract Number: 4810 RECOMMENDED COUNCIL ACTION: 1. Authorize City Manager to execute a contract amendment, in a form approved by the City Attorney, with Robert Half International Inc., for additional temporary staffing. 2. Alternatively, discuss and take other possible action related to this item. FISCAL IMPACT: None Amount Budgeted: $45,000.00 Additional Appropriation: N/A Account Number(s): From Account: 001 - 400 - 2403 -4101 (Building Safety Full Time Salaries) To Account: 001 - 400 - 2403 -6214 (Building Safety Professional and Technical) ORIGINATED BY: Paige Vaughan, Building and Safety Manag REVIEWED BY: Sam Lee, Planning and Building Safety Director APPROVED BY: Greg Carpenter, City Manager BACKGROUND AND DISCUSSION: The planning and Building and Safety Department has several vacant positions and an increased level of activity. In order to address this issue, on February 2nd, 2015, the City Manager approved a five year on -call agreement for staffing services with Robert Half International Inc to provide consulting services for the Building and Safety Division in amount not to exceed $25,000 total. Since that time, the firm has provided satisfactory customer service consistent with their contract terms and conditions. It is anticipated the current amount ($25,000) will be expended by the end of September 2015, because any amendment to the contract will cause the contract amount to exceed $25,000, City Council approval is required. At this time, staff is requesting the City Council approve a first amendment to the Contract for the amount of $20,000.00, in a form approved by the City Attorney, for Robert Half International Inc. to continue to provide temporary staffing services to the Building and Safety Division. 1 119 120 EL SEGUNDO CITY COUNCIL MEETING DATE: July 21, 2015 AGENDA STATEMENT AGENDA HEADING: New Business AGENDA DESCRIPTION: Consideration and possible action to adopt an ordinance updating the El Segundo Municipal Code amending Title 13 of the El Segundo Municipal Code by adding Chapter 18 to provide an expedited, streamlined permitting process for small residential rooftop solar systems. (Fiscal Impact: None) RECOMMENDED COUNCIL ACTION: 1. Introduce and waive first reading of Ordinance No. , enacting Municipal Code amendments to provide an expedited, streamlined permitting process for small residential rooftop solar energy systems. 2. Alternatively, discuss and take other possible action related to this item. ATTACHED SUPPORTING DOCUMENTS: 1. Draft Ordinance 2. Background of Assembly Bill 2188 FISCAL IMPACT: None Amount Budgeted: N/A Additional Appropriation: N/A Account Number(s): N/A - ORIGINATED BY: Paige Vaughan, Building and Safety Manager REVIEWED BY: Sam Lee, Planning and Building Safety Director APPROVED BY: Greg Carpenter, City Manager, BACKGROUND AND DISCUSSION: In September 2014, Governor Brown signed into law the Solar Permitting Efficiency Act (Assembly Bill 2188) which requires local governments to adopt an administrative Ordinance creating an expedited permit process for small, residential rooftop solar installations under 10 kilowatts. Under this new law, the local ordinance must provide a process that substantially conforms to the process set forth in the California Solar Permitting Guidebook, which is published by the Governor's Office of Planning and Research. Although the City already expedites the review of applications for small, residential rooftop solar installations, state law requires the City to adopt an ordinance creating an expedited process. The City currently expedites the review of such applications by reviewing and issuing applications; nonetheless, state law requires the City adopt an ordinance that creates an expedited, streamlined permitted process. In addition, the City must administratively adopt a checklist of requirements with which small residential rooftop solar energy systems must comply 14 121 to be eligible for expedited review. The checklist and permit applications must also be posted on the City's website (Gov. Code § 65850.5). The attached ordinance is intended to satisfy the state law requirement, and City staff recommend the City Council introduce and waive first reading of the ordinance, and schedule a second reading and adoption of the ordinance. Upon second reading, the ordinance will become effective after thirty (30) days. Staff recommends that City Council introduce and waive first reading of the proposed ordinance amending Title 13 of the El Segundo Municipal Code, and schedule a second reading and adoption of the ordinance. 2 122 ORDINANCE NO. AN ORDINANCE AMENDING TITLE 13 OF THE EL SEGUNDO MUNICIPAL CODE BY ADDING CHAPTER 18 TO PROVIDE AN EXPEDITED, STREAMLINED PERMITTING PROCESS FOR SMALL RESIDENTIAL ROOFTOP SOLAR SYSTEMS. The City Council of the City of El Segundo does ordain as follows: SECTION 1: Findings. The City Council finds as follows: A. The City Council of the City of El Segundo recognizes the importance of green technology and wishes to advance the use of solar energy by its citizens, businesses and industries; B. By this ordinance, the City Council seeks to implement Assembly Bill 2188 by creating an expedited, streamlined permitting process for small residential rooftop solar energy systems. SECTION 2: Environmental Assessment. Adoption of this Ordinance is exempt from further environmental review under the California Environmental Quality Act (California Public Resources Code §§ 21000, et seq., "CEQA ") and CEQA Guidelines (14 California Code of Regulations §§ 15000, et seq.) because it establishes rules and procedures for operation of existing facilities; minor temporary use of land; minor alterations in land use; new construction of small structures; and minor structures accessory to existing commercial facilities. This Ordinance, therefore, is categorically exempt from further CEQA review under CEQA Guidelines §§ 15301; 15303, 15304(e); 15305; and 15311. Further, the adoption of this Ordinance is also exempt from review under CEQA pursuant to CEQA Guidelines § 15061(b)(3) because the Ordinance is for general policies and procedure- making. This Ordinance does not authorize any new development entitlements, but simply establishes policies and procedures for allowing the previously approved project to be constructed. Any proposed project that will utilize the changes set forth in this Ordinance will be subject to CEQA review as part of the entitlement review of the project. The Ordinance will not adversely impact the environment and is therefore exempt from the provisions of CEQA. SECTION 3: Title 13 (Building Regulations) of the El Segundo Municipal Code ( "ESMC ") is amended to add a new Chapter 18 to read as follows: "Chapter 18 - EXPEDITED PERMIT PROCESS FOR SMALL RESIDENTIAL ROOFTOP SOLAR SYSTEMS Section 13 -18 -1: Purpose. This chapter implements the Solar Rights Act as codified at Government Code § 65850.5 to achieve timely and cost - effective installations of small residential rooftop 123 solar energy systems. Section 13 -18 -2: Definitions. 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. Words and phrases not defined by this chapter have the meaning set forth in this Code, the Act, or regulations promulgated in accordance with applicable law. "Act" means the Solar Rights Act as codified at Government Code § 65850.5. "Director" means the city manager, or designee. In the absence of a different designation by the city manager, the Director of Planning and Building Safety, or designee, is the Director. "Electronic submittal" means utilization of office equipment and software used for communicating including, without limitation, telephone, facsimile machine, office automation equipment (computer terminals or personal computers, including laptops) and communications software applications such as electronic mail and Internet browsers. "Information Technologies" or "IT "- means- any - system, device,, hardware,- software, -or other equipment designed and used for transmitting or receiving communications by any form of electronic mail (e -mail) or any network of interconnected computers, including, without limitation, the Internet, as used for such purposes. "Internet" or "world wide web" means a global network connecting multiple information technologies from schools, libraries, businesses, or private homes, using a common set of communication protocols. "Reasonable restrictions" on a solar energy system are those restrictions that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or that allow for an alternative system of comparable cost, efficiency, and energy conservation benefits. "Restrictions that do not significantly increase the cost of the system or decrease its efficiency or specified performance" means: A. For Water Heater Systems or Solar Swimming Pool Heating Systems: an amount exceeding 10 percent of the cost of the system, but in no case more than one thousand dollars ($1,000), or decreasing the efficiency of the solar energy system by an amount exceeding 10 percent, as originally specified and proposed. B. For Photovoltaic Systems: an amount not to exceed one thousand dollars ($1,000) over the system cost as originally specified and proposed, or a 4 124 decrease in system efficiency of an amount exceeding 10 percent as originally specified and proposed. "Small residential rooftop solar energy system" means all of the following: A. A solar energy system that is no larger than 10 kilowatts alternating current nameplate rating or 30 kilowatts thermal. B. A solar energy system that conforms to all applicable state fire, structural, electrical, and other building codes as adopted or amended by the city and all state and local health and safety standards. C. A solar energy system that is installed on a single or duplex family dwelling. D. A solar panel or module array that does not exceed the maximum legal building height as defined by the city. "Solar Energy System" means either of the following: A. Any solar collector or other solar energy device whose primary purpose is to provide for the collection, storage, and distribution of solar energy for space heating, space cooling, electric generation, or water heating. B. Any structural design feature of a building, whose primary purpose is to provide for the collection, storage, and distribution of solar energy for electricity generation, space heating or cooling, or for water heating. Section 13 -18 -3: Applicability. A. This chapter applies to the permitting of all small residential rooftop solar energy systems in the city. B. Small residential rooftop solar energy systems legally established or permitted before the effective date of this chapter are not subject to the requirements of this chapter unless physical modifications or alterations are undertaken that materially change the size, type, or components of a small rooftop energy system in such a way as to require new permitting. Routine operation and maintenance or like -kind replacements do not require a permit. Section 13 -18 -4: Solar Energy System Requirements. A. All solar energy systems must meet applicable legal health and safety standards and requirements. B. Solar energy systems for heating water in single - family residences and for heating water in commercial or swimming pool applications must be certified 125 by an accredited listing agency as defined by the California Plumbing and Mechanical Code, as adopted by this Code. C. Solar energy systems for producing electricity must meet all applicable safety and performance standards established by the California Electrical Code, the Institute of Electrical and Electronics Engineers, and accredited testing laboratories such as Underwriters Laboratories and, where applicable, rules of the Public Utilities Commission regarding safety and reliability. Section 13 -18 -5: Duties of the Director. A. All documents required for the submission of an expedited solar energy system application must be made available on the internet. B. Electronic submittal of the required permit application and documents by information technologies is available to all small residential rooftop solar energy system permit applicants. All forms, applications, and other documents may be signed electronically in accordance with Government Code § 16.5. C. The Director must develop a standard plan and checklist of all requirements with which small residential rooftop solar energy systems must comply to be eligible for expedited review. D. The small residential rooftop solar system permit process, standard plan(s), and checklist(s) must substantially conform to recommendations for expedited permitting, including the checklist and standard plans contained in the most current version of the California Solar Permitting Guidebook adopted by the Governor's Office of Planning and Research. E. All fees prescribed for the permitting of small residential rooftop solar energy system must comply with Government Code §§ 65850.55, 66015, and 66016; along with Health and Safety Code § 17951. Section 13 -18 -6: Permit review and inspection requirements. A. The Director must implement an administrative, nondiscretionary review process to expedite approval of small residential rooftop solar energy systems. The Director must issue a ministerial building permit on the same day for over - the- counter applications or within three business days for electronic submittals, upon receipt of a complete application that meets the requirements of the approved checklist and standard plan. The Director may require an applicant to apply for an administrative use permit if the Director finds, based on substantial evidence, that the solar energy system could have a specific, adverse impact upon the public health and safety. Such decisions must be in writing and may be appealed to the Planning Commission in accordance with this Code. M 126 B. Review of the application is limited to whether the application meets applicable law. C. If an administrative use permit is required, the Director may deny an application for the use permit if the Director makes written findings based upon substantive evidence in the record that the proposed installation would have a specific, adverse impact upon public health or safety and there is no feasible method to satisfactorily mitigate or avoid, as defined, the adverse impact. Such findings must include the basis for the rejection of the potential feasible alternative for preventing the adverse impact. Such decisions may be appealed to the Planning Commission in accordance with this Code. D. Any condition imposed on an application must be designed to mitigate the specific, adverse impact upon health and safety at the lowest possible cost. E. The Director cannot condition approval of an application on by requiring formation of an home owner association. F. If an application is deemed incomplete, a written correction notice detailing all deficiencies in the application and any additional information or documentation required to be eligible for issuing an expedited permit must be sent to the applicant for resubmission. G. Only one inspection is required and must be performed by the Director for small residential rooftop solar energy systems eligible for expedited review. H. The inspection must be done in a timely manner and should include consolidated inspections. If a small residential rooftop solar energy system fails inspection, a subsequent inspection is authorized but need not conform to the requirements of this chapter." SECTION 4: Construction. This Ordinance must be broadly construed in order to achieve the purposes stated in this Ordinance. It is the City Council's intent that the provisions of this Ordinance be interpreted or implemented by the City and others in a manner that facilitates the purposes set forth in this Ordinance. SECTION 5: Enforceability. 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. SECTION 6: Validity of Previous Code Sections. If this entire Ordinance or its 127 application is deemed invalid by a court of competent jurisdiction, any repeal or amendment of the ESMC or other city ordinance by this Ordinance will be rendered void and cause such previous ESMC provision or other the city ordinance to remain in full force and effect for all purposes. SECTION 7: Severability. 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 8: 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 9: This Ordinance will take effect on the 31st day following its final passage and adoption. PASSED, APPROVED, AND ADOPTED this day of 2015. ATTEST: Tracy Weaver, City Clerk APPROVED AS TO FORM: Mark D. Hensley, City Attorney Suzanne Fuentes, Mayor n 128 Bill Text - AB -2188 Solar energy: permits. Page 1 of 5 e4a. fit ?�C {I Ir�fi LEGISLATIVE INFORMATION AB -2188 Solar energy: permits. (2013 -2014) Assembly Bill No. 2188 CHAPTER 521 An act to amend Section 714 of the Civil Code, and to amend Section 65850.5 of the Government Code, relating to solar energy. Approved by Governor September 21, 2014. Filed with Secretary of State September 21, 2014. ] LEGISLATIVE COUNSEL'S DIGEST AB 2188, Muratsuchi. Solar energy: permits. (1) Existing law provides that it is the policy of the state to promote and encourage the use of solar energy systems, as defined, and to limit obstacles to their use. Existing law states that the implementation of consistent statewide standards to achieve timely and cost - effective installation of solar energy systems is not a municipal affair, but is instead a matter of statewide concern. Existing law requires a city or county to administratively approve applications to install solar energy systems through the issuance of a building permit or similar nondiscretionary permit. Existing law requires a solar energy system for heating water to be certified by the Solar Rating Certification Corporation or another nationally recognized certification agency. This bill would specify that these provisions address a statewide concern. The bill would additionally require a city, county, or city and county to adopt, on or before September 30, 2015, in consultation with specified public entities an ordinance that creates an expedited, streamlined permitting process for small residential rooftop solar energy systems, as specified. The bill would additionally require a city, county, or city and county to inspect a small residential rooftop solar energy system eligible for expedited review in a timely manner, as specified. The bill would prohibit a city, county, or city and county from conditioning the approval of any solar energy system permit on approval of that system by an association that manages a common interest development. The bill would require a solar energy system for heating water in single family residences and solar collectors for heating water in commercial or swimming pool applications to be certified by an accredited listing agency, as defined. Because the bill would impose new duties upon local governments and local agencies, it would impose a state - mandated local program. (2) Existing law prohibits any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of, or any interest in, real property, and any provision of a governing document from effectively prohibiting or restricting the installation or use of a solar energy system. Existing law exempts from that prohibition provisions that impose reasonable restrictions on a solar energy system that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance. Existing law defines the term "significantly," for these purposes, with regard to solar domestic water heating systems or solar swimming pool heating systems that comply with state and federal law, to mean an amount exceeding 20% of the cost of the system or decreasing the efficiency of the solar energy system by an amount exceeding 20 %, and with regard to photovoltaic systems that comply with state and federal law, an amount not to exceed $2,000 over the system cost or a decrease in system efficiency of an amount exceeding 20 %, as specified. Existing law requires a solar energy system for heating water http : / /leginfo.legislature.ca.gov/ faces /billNavClient .xhtml ?bill_id= 201320140AB2188 6/18/145 Bill Text - AB -2188 Solar energy: permits. Page 2 of 5 subject to the provisions described above to be certified by the Solar Rating Certification Corporation or another nationally recognized certification agency. This bill would instead define the term "significantly," for these purposes, with regard to solar domestic water heating systems or solar swimming pool heating systems that comply with state and federal law, to mean an amount exceeding 10% of the cost of the system, not to exceed $1,000, or decreasing the efficiency of the solar energy system by an amount exceeding 10 %, and with regard to photovoltaic systems that comply with state and federal law, an amount not to exceed $1,000 over the system cost or a decrease in system efficiency of an amount exceeding 10 %, as specified. The bill would require a solar energy system for heating water in single family residences and solar collectors for heating water in commercial or swimming pool applications subject to the provisions described above to be certified by an accredited listing agency, as defined. (3) Existing law requires an application for approval for the installation or use of a solar energy system to be processed and approved by the appropriate approving entity in the same manner as an application for approval of an architectural modification to the property and prohibits the approver from willfully avoiding or delaying approval. Existing law requires the approving entity to notify the applicant in writing within 60 days of receipt of the application if the application is denied, as specified. The bill would instead require the approving entity to notify the applicant in writing within 45 days of receipt of the application if the application is denied, as specified. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority Appropriation: no Fiscal Committee: yes Local Program: yes THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. The Legislature finds and declares all of the following: (a) In recent years, the state has both encouraged the development of innovative distributed generation technology and prioritized the widespread adoption of solar power as a renewable energy resource through programs such as the California Solar Initiative. (b) Rooftop solar energy is a leading renewable energy technology that will help this state reach its energy and environmental goals. (c) To reach the state's Million Solar Roofs goal, hundreds of thousands of additional rooftop solar energy systems will need to be deployed in the coming years. (d) Various studies, including one by the Lawrence Berkeley National Laboratory, show that, despite the 1978 California Solar Rights Act, declaring that the "implementation of consistent statewide standards to achieve the timely and cost - effective installation of solar energy systems is not a municipal affair ... but is instead a matter of statewide concern," the permitting process governing the installation of rooftop solar energy systems varies widely across jurisdictions and, contrary to the intent of the law, is both an "obstacle" to the state's clean energy and greenhouse reduction goals and a "burdensome cost" to homeowners, businesses, schools, and public agencies. (e) The United States Department of Energy, through its SunShot Initiative, has distributed millions of dollars in grants to local and state governments, including California jurisdictions, and nonprofit organizations to reduce the costs of distributed solar through streamlined and standardized permitting. (f) A modernized and standardized permitting process for installations of small -scale solar distributed generation technology on residential rooftops will increase the deployment of solar distributed generation, help to expand access to lower income households, provide solar customers greater installation ease, improve the state's ability to reach its clean energy goals, and generate much needed jobs in the state, all while maintaining safety standards. SEC. 2. Section 714 of the Civil Code is amended to read: 714. (a) Any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of, or any interest in, real property, and any provision of a governing http : / /leginfo.legislature.ca.gov / faces /billNavClient .xhtml ?bill_id= 201320140AB2188 6/1811 Bill Text - AB -2188 Solar energy: permits. Page 3 of 5 document, as defined in Section 4150 or 6552, that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable. (b) This section does not apply to provisions that impose reasonable restrictions on solar energy systems. However, it is the policy of the state to promote and encourage the use of solar energy systems and to remove obstacles thereto. Accordingly, reasonable restrictions on a solar energy system are those restrictions that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or that allow for an alternative system of comparable cost, efficiency, and energy conservation benefits. (c) (1) A solar energy system shall meet applicable health and safety standards and requirements imposed by state and local permitting authorities, consistent with Section 65850.5 of the Government Code. (2) Solar energy systems used for heating water in single family residences and solar collectors used for heating water in commercial or swimming pool applications shall be certified by an accredited listing agency as defined in the Plumbing and Mechanical Codes. (3) A solar energy system for producing electricity shall also meet all applicable safety and performance standards established by the California Electrical Code, the Institute of Electrical and Electronics Engineers, and accredited testing laboratories such as Underwriters Laboratories and, where applicable, rules of the Public Utilities Commission regarding safety and reliability. (d) For the purposes of this section: (1) (A) For solar domestic water heating systems or solar swimming pool heating systems that comply with state and federal law, "significantly" means an amount exceeding 10 percent of the cost of the system, but in no case more than one thousand dollars ($1,000), or decreasing the efficiency of the solar energy system by an amount exceeding 10 percent, as originally specified and proposed. (B) For photovoltaic systems that comply with state and federal law, "significantly" means an amount not to exceed one thousand dollars ($1,000) over the system cost as originally specified and proposed, or a decrease in system efficiency of an amount exceeding 10 percent as originally specified and proposed. (2) "Solar energy system" has the same meaning as defined in paragraphs (1) and (2) of subdivision (a) of Section 801.5. (e) (1) Whenever approval is required for the installation or use of a solar energy system, the application for approval shall be processed and approved by the appropriate approving entity in the same manner as an application for approval of an architectural modification to the property, and shall not be willfully avoided or delayed. (2) For an approving entity that is an association, as defined in Section 4080 or 6528, and that is not a public entity, both of the following shall apply: (A) The approval or denial of an application shall be in writing. (B) If an application is not denied in writing within 45 days from the date of receipt of the application, the application shall be deemed approved, unless that delay is the result of a reasonable request for additional information. (f) Any entity, other than a public entity, that willfully violates this section shall be liable to the applicant or other party for actual damages occasioned thereby, and shall pay a civil penalty to the applicant or other party in an amount not to exceed one thousand dollars ($1,000). (g) In any action to enforce compliance with this section, the prevailing party shall be awarded reasonable attorney's fees. (h) (1) A public entity that fails to comply with this section may not receive funds from a state - sponsored grant or loan program for solar energy. A public entity shall certify its compliance with the requirements of this section when applying for funds from a state - sponsored grant or loan program. (2) A local public entity may not exempt residents in its jurisdiction from the requirements of this section SEC. 3. Section 65850.5 of the Government Code is amended to read 65850.5. (a) The implementation of consistent statewide standards to achieve the timely and cost - effective installation of solar energy systems is not a municipal affair, as that term is used in Section 5 of Article XI of the http : / /leginfo.legislature.ca.gov / faces /bilINavClient .xhtml ?bill_id= 201320140AB2188 6/18/lOP5 Bill Text - AB -2188 Solar energy: permits. Page 4 of 5 California Constitution, but is instead a matter of statewide concern. It is the intent of the Legislature that local agencies not adopt ordinances that create unreasonable barriers to the installation of solar energy systems, including, but not limited to, design review for aesthetic purposes, and not unreasonably restrict the ability of homeowners and agricultural and business concerns to install solar energy systems. It is the policy of the state to promote and encourage the use of solar energy systems and to limit obstacles to their use. It is the intent of the Legislature that local agencies comply not only with the language of this section, but also the legislative intent to encourage the installation of solar energy systems by removing obstacles to, and minimizing costs of, permitting for such systems. (b) A city or county shall administratively approve applications to install solar energy systems through the issuance of a building permit or similar nondiscretionary permit. Review of the application to install a solar energy system shall be limited to the building official's review of whether it meets all health and safety requirements of local, state, and federal law. The requirements of local law shall be limited to those standards and regulations necessary to ensure that the solar energy system will not have a specific, adverse impact upon the public health or safety. However, if the building official of the city or county makes a finding, based on substantial evidence, that the solar energy system could have a specific, adverse impact upon the public health and safety, the city or county may require the applicant to apply for a use permit. (c) A city, county, or city and county may not deny an application for a use permit to install a solar energy system unless it makes written findings based upon substantial evidence in the record that the proposed installation would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. The findings shall include the basis for the rejection of potential feasible alternatives of preventing the adverse impact. (d) The decision of the building official pursuant to subdivisions (b) and (c) may be appealed to the planning commission of the city, county, or city and county. (e) Any conditions imposed on an application to install a solar energy system shall be designed to mitigate the specific, adverse impact upon the public health and safety at the lowest cost possible. (f) (1) A solar energy system shall meet applicable health and safety standards and requirements imposed by state and local permitting authorities. (2) Solar energy systems for heating water in single family residences and solar collectors used for heating water in commercial or swimming pool applications shall be certified by an accredited listing agency as defined in the California Plumbing and Mechanical Codes. (3) A solar energy system for producing electricity shall meet all applicable safety and performance standards established by the California Electrical Code, the Institute of Electrical and Electronics Engineers, and accredited testing laboratories such as Underwriters Laboratories and, where applicable, rules of the Public Utilities Commission regarding safety and reliability. (g) (1) On or before September 30, 2015, every city, county, or city and county, in consultation with the local fire department or district and the utility director, if the city, county, or city and county operates a utility, shall adopt an ordinance, consistent with the goals and intent of subdivision (a), that creates an expedited, streamlined permitting process for small residential rooftop solar energy systems. In developing an expedited permitting process, the city, county, or city and county shall adopt a checklist of all requirements with which small rooftop solar energy systems shall comply to be eligible for expedited review. An application that satisfies the information requirements in the checklist, as determined by the city, county, and city and county, shall be deemed complete. Upon confirmation by the city, county, or city and county of the application and supporting documents being complete and meeting the requirements of the checklist, and consistent with the ordinance, a city, county, or city and county shall, consistent with subdivision (b), approve the application and issue all required permits or authorizations. Upon receipt of an incomplete application, a city, county, or city and county shall issue a written correction notice detailing all deficiencies in the application and any additional information required to be eligible for expedited permit issuance. (2) The checklist and required permitting documentation shall be published on a publically accessible Internet Web site, if the city, county, or city and county has an Internet Web site, and the city, county, or city and county shall allow for electronic submittal of a permit application and associated documentation, and shall authorize the electronic signature on all forms, applications, and other documentation in lieu of a wet signature by an applicant. In developing the ordinance, the city, county, or city and county shall substantially conform its expedited, streamlined permitting process with the recommendations for expedited permitting, including the checklists and standard plans contained in the most current version of the California Solar Permitting Guidebook http : / /leginfo.legislature.ca.gov / faces /bilINavClient .xhtml ?bill_id= 201320140AB2188 6/18AU5 Bill Text - AB -2188 Solar energy: permits. Page 5 of 5 and adopted by the Governor's Office of Planning and Research. A city, county, or city and county may adopt an ordinance that modifies the checklists and standards found in the guidebook due to unique climactic, geological, seismological, or topographical conditions. If a city, county, or city and county determines that it is unable to authorize the acceptance of an electronic signature on all forms, applications, and other documents in lieu of a wet signature by an applicant, the city, county, or city and county shall state, in the ordinance required under this subdivision, the reasons for its inability to accept electronic signatures and acceptance of an electronic signature shall not be required. (h) For a small residential rooftop solar energy system eligible for expedited review, only one inspection shall be required, which shall be done in a timely manner and may include a consolidated inspection, except that a separate fire safety inspection may be performed in a city, county, or city and county that does not have an agreement with a local fire authority to conduct a fire safety inspection on behalf of the fire authority. If a small residential rooftop solar energy system fails inspection, a subsequent inspection is authorized, however the subsequent inspection need not conform to the requirements of this subdivision. (i) A city, county, or city and county shall not condition approval for any solar energy system permit on the approval of a solar energy system by an association, as that term is defined in Section 4080 of the Civil Code. (j) The following definitions apply to this section: (1) "A feasible method to satisfactorily mitigate or avoid the specific, adverse impact" includes, but is not limited to, any cost - effective method, condition, or mitigation imposed by a city, county, or city and county on another similarly situated application in a prior successful application for a permit. A city, county, or city and county shall use its best efforts to ensure that the selected method, condition, or mitigation meets the conditions of subparagraphs (A) and (B) of paragraph (1) of subdivision (d) of Section 714 of the Civil Code. (2) "Electronic submittal" means the utilization of one or more of the following: (A) Email. (B) The Internet. (C) Facsimile. (3) "Small residential rooftop solar energy system" means all of the following: (A) A solar energy system that is no larger than 10 kilowatts alternating current nameplate rating or 30 kilowatts thermal. (B) A solar energy system that conforms to all applicable state fire, structural, electrical, and other building codes as adopted or amended by the city, county, or city and county and paragraph (3) of subdivision (c) of Section 714 of the Civil Code. (C) A solar energy system that is installed on a single or duplex family dwelling. (D) A solar panel or module array that does not exceed the maximum legal building height as defined by the authority having jurisdiction. (4) "Solar energy system" has the same meaning set forth in paragraphs (1) and (2) of subdivision (a) of Section 801.5 of the Civil Code. (5) "Specific, adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, and written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code. http : / /leginfo.legislature.ca.gov / faces /bilINavClient.xhtml ?bill,- „id= 20132014OAB2] 88 6/18/M5 134 EL SEGUNDO CITY COUNCIL AGENDA STATEMENT AGENDA DESCRIPTION: MEETING DATE: July 21, 2015 AGENDA HEADING: New Business Consideration and possible action regarding potential amendments to the Downtown Specific Plan (DSP) regarding: (1) tinting or reflective glass on storefront windows; (2) signs for non - street front uses; (3) building height limit along street -side property lines; (4) design review process of projects relating to existing design review standards in the DSP; (5) parking requirements for Non - Profit Museums in the DSP area; and /or (6) parking and the Parking -In -Lieu Fee Program in the DSP and review and potential formulation of recommendations relating to parking issues in the DSP. (Fiscal Impact: None) RECOMMENDED COUNCIL ACTION: It is recommended that the City Council consider: 1. Directing staff to prepare an amendment to the DSP Section VIII (Design Standards) regarding Tinting or Reflective Glass on Storefront Windows; and /or 2. Directing staff to prepare an amendment to the DSP Section VIII (Design Standards) regarding Signs for Non - Street Front Uses; and /or 3. Directing staff to prepare an amendment to the DSP Section VI (Development Standards) regarding building height along street -side property lines; and/or 4. Directing staff to prepare an amendment to the DSP Sections V (Administration) and VIII (Design Standards) to establish a design review process and to define projects requiring design review relating to existing design review standards in the DSP; and /or 5. Directing staff to prepare an amendment to the DSP Section VII (Parking) regarding parking requirements for Non - profit Museum uses; and /or 6. Establishing a subcommittee to formulate potential recommendations regarding the preparation of amendments to parking standards in the DSP and /or the Parking In -Lieu Fee Program; and /or 7. Alternatively, discuss and take other possible action related to this item. ATTACHED SUPPORTING DOCUMENTS: 1. Excerpts from the Downtown Specific Plan, FISCAL IMPACT: N/A Amount Budgeted: N/A Additional Appropriation: N/A Account Number(s): N/A n ORIGINATED BY: Kimberly Christensen, AICP, Planning Manager REVIEWED BY: Sam Lee, Director of Planning and, Building Safety APPROVED BY: Greg Carpenter, City Manager 1 135 INTRODUCTION: The purpose of the following report is two -fold: (1) to bring several matters regarding the DSP to the City Council's attention and for possible action and (2) per the Planning Commission's direction, to present information regarding parking in the downtown and options for the City Council's consideration. BACKGROUND AND DISCUSSION: I. Background and Discussion A. Downtown Specific Plan (DSP) Background History and Intent. The Downtown Specific Plan (DSP) was established on August 1, 2000 with the adoption of Ordinance No. 1319. The DSP was the culmination of a multi -year visioning effort to help revitalize the downtown area. The effort was led by a Downtown Task Force of community and business leaders appointed by the City Council. The Task Force developed a Vision Statement and a Downtown Philosophy and Concept, which were incorporated in the adopted Specific Plan (see attached excerpts). The two statements emphasize improving the physical appearance of the downtown area, maintaining and enhancing "village" and pedestrian character, carefully considering the preferred mix of uses (retail, office, and residential) and strategically using key parcels in the downtown area. Amendments. Since its adoption, the Downtown Specific Plan (DSP) has been amended several times and those amendments are summarized in the following table. Ordinance/ Resolution Adoption Date Description Number Ordinance No. 1336 May 15, 2001 To allow tenantibusiness owner residential uses above the street -front level. Resolution No. 4339 November 5, 2003 To establish a parking in -lieu November 18, 2003 fee of $17,500 per space. Ordinance No. 1368 To add a parking in -lieu fee program for additions to existing buildings or construction of new _buildings. _ Resolution No. 4347 December 2, 2003 To set a temporary parking in -lieu fee of $2,500 per space for a period of six months and $17,500 thereafter. Resolution No. 4382 July 20, 2004 To set a temporary parking in -lieu fee of $12,500 per space for a period of one (1) year and $17,500 thereafter. 2 136 Ordinance No. 1387 November 15, 2005 The expansion of the DSP to include properties in the 200 block of West Grand Avenue. Ordinance No. 1400 October 3, 2006 To modify building front setback restrictions for the portion of buildings exceeding 30 feet in height. Resolution No. 4599 June 2, 2009 To allow the payment of in- lieu fees over a period of time not to exceed twenty (20) years (a ment plan). Ordinance No. 1429 June 2, 2009 To incorporate provisions for temporary and permanent outdoor uses and establish procedures for making parking in -lieu payments. Ordinance No. 1447 October 5, 2010 To amend the permitted and conditionally permitted uses to allow Assembly Hall uses as conditionally permitted uses. B. Potential Amendments to the DSP Tinted or Reflective Glass on Storefront Window in the Downtown Specific Plan (DSP) Area Downtown Specific Plan (DSP) Section VIII (Design Standards) states that "storefront windows shall be clear glass, neither tinted nor reflective." The intent of this and other facade- related provisions, as stated in DSP Section VIII (Design Standards) is to provide transparency between the street and store interiors, which helps to maintain the pedestrian - friendly character of the downtown. The Downtown Specific Plan allows the use of street trees, awnings, and arbors to provide shade for storefronts and to reduce glare caused by direct sunlight exposure. Staff recommends modifying or removing the restriction on the use of tinted glass on storefront windows (as required in DSP § VIII(A)(4)(a)(i)(bb)(ii)(cc) and (dd)). Many businesses use tinted glass to reduce sunlight and glare impacts that affect the interior of their businesses. In some cases, businesses are on streets with an orientation that exposes them to direct sunlight virtually the entire day which can present a variety of operational impacts. Alternative solutions such as the use of awnings and landscaping to help address light and glare issues may not always solve the entire problem and can also inhibit the ability to install signs that have sufficient visibility. Most businesses in the downtown are on small lots with limited street frontage (typically 25 feet wide) for signage opportunities. Additionally, tinted glass may also be used as an integral element of the architectural design that can add visual interest to a building. 137 Staff believes that the use of lightly tinted or colored glass can reduce sunlight and glare impacts and still achieve the intended result of allowing pedestrians to see into businesses. In addition, tinted and /or colored glass can better meet the energy efficiency requirements of the 2013 California Energy Code (Table 140.3 -C regarding U factors and solar heat gain coefficients). Furthermore, the use of tinted and /or colored glass helps to reduce the energy needs of commercial businesses, particularly air conditioning costs, is consistent with the General Plan Air Quality Element Goal AQ 12 "Reduction in Residential, Commercial, and Industrial Energy Consumption" and is consistent with Air Quality Element Policy AQ 12- 1.2 which states "It is the policy of the City of El Segundo that the City encourage the incorporation of energy conservation features in the design of new projects and the installation of conservation devices in existing developments." Staff believes that modifying the language to allow this change and /or to allow the change subject to review and approval by the Planning and Building Safety Director is reasonable. Alternatively, if the Council feels that the use of tinted glass is no longer of significant concern, the restriction can be eliminated entirely. Planning Commission Discussion. The Planning Commission was in favor of relaxing or eliminating the window tinting restriction and giving the Planning and Building Safety Director more discretion on the issue. The Planning Commission was not in favor of relaxing or eliminating the restriction on reflective glass on windows. 2. Additional Signs for Non - Street Front Uses in the DSP Area DSP Section VIII (Design Standards) states that "Perpendicular /Pedestrian signage may be used for non - street fronting businesses and shall be no more than nine square feet." In addition, DSP Section VIII allows "a maximum of two square feet of lettered /logo and /or icon painted directly onto the entrance (without a background)." The signs permitted for non - street front businesses are part of an overall limit of 25 square feet per lot. The intent of these and other sign - related provisions in the DSP is to allow for attractive signs in scale with existing buildings that preserve the pedestrian - friendly character of the downtown and serve as invitations for people to enter and patronize stores and restaurants. Several business owners have recently expressed their concern that the permitted signs for non - street front uses cannot adequately advertise their business and attract patrons for the following reasons: 1) there are other existing signs or obstructions (trees, awnings, etc.) that would limit the visibility of a perpendicular sign; 2) a building may have already used the maximum permitted sign area (25 square feet), which would prevent the addition of new signs; 3) some businesses may not have any external building frontage; and 4) some multi- tenant buildings do not have side entrances, which eliminates the second option (discussed above) for signs over a side entrance. Consequently, several business owners have requested that the City consider permitting more sign types and a higher maximum area permitted for signs on non - street front uses. Staff recommends that the City Council consider an amendment to the DSP to address these challenges for non - street front uses that have limited opportunities for signage. Planning Commission Discussion. The Planning Commission was in favor of allowing additional, but limited signage on non - street fronting building elevations. It directed staff to set a specific limit that would be proportionate with the size and scale of the buildings M 138 and the size limits of signage allowed in the DSP, but to allow flexibility for the Planning Commission to review and approved signage that exceeds those limits. 3. Building height limit and setback requirement along street -side property lines in the DSP Area DSP Section VI (Development Standards) states that "To the extent a building exceeds 30 feet in height, the front portion of the building that exceeds 30 feet in height must be setback 25 feet from the front property line." This requirement was added to the Specific Plan's development standards in 2006 to address a concern about the height and mass of buildings along street frontages (especially Main Street) and the potential "canyonization effect" of three -story buildings that do not have a minimum required setback on the third floor. The intent of this provision is to maintain lower building heights and a more pedestrian scale of development along the street. In addition, this height limitation and setback requirement is consistent with the existing development along Main Street and Richmond Street, where buildings located adjacent to the street are primarily single- story. Staff has recently received inquiries from property owners for the development of corner properties with frontage on two intersecting streets. Based on the current DSP Development Standards, the height restriction and setback requirement discussed above applies only to front property line. Staff is concerned that the 2006 amendment did not address the intent for street - facing side property lines as to whether these street - facing side setbacks for buildings and structures should be the same or different than front setbacks for buildings and structures. Therefore, staff suggests that the City Council consider an amendment to the DSP to make one of the following changes to clarify this issue: 1) to specifically state that the same standard is applied to buildings and structures along street - facing side property lines as is applied to front setbacks; or 2) to apply a modified standard that is either more or less restrictive for building frontages along street - facing side property lines than for front property lines in the DSP with clarification as to which the Council recommends. Planning Commission Discussion. The Planning Commission was generally not in favor of establishing an additional setback for buildings exceeding 30 feet in height along street - facing side property lines particularly since most lots in the Downtown are small and narrow. The Commission expressed concern that such a standard would reduce the property rights and value of corner lots in the DSP however they did request more information regarding this issue and lot sizes. 4. Design review process in the Downtown Specific Plan (DSP) Area Downtown Specific Plan (DSP) Section VIII (Design Standards) regulates the design of development of both public and private property. The provisions regarding public property affect street configuration, street parking, alley treatments, public sidewalks, paving, fagade design, lighting, and signage. In addition, in 2008, the City Council adopted an Architectural /Design Review fee (Resolution 4574, October 21, 2008) to pay for the cost reviewing individual projects for consistency with the Downtown Specific Plan (DSP) Design Standards. However, the Downtown Specific Plan did not establish a Design Review process to property implement these standards. 5 139 Staff recommends that the City Council consider an amendment to the DSP as follows: 1) to establish a ministerial, an administrative, and /or a Planning Commission -level process for design review; and 2) to determine the types of projects that require either level of design review to implement the existing DSP design standards. Planning Commission Discussing. The Planning Commission was in favor of establishing a more defined design review process and clearly defining which project types that would require each type of review. 5. Parking for Non - profit Museum Uses in the Downtown Specific Plan (DSP) Area Properties in the downtown are generally comprised of small substandard lots (commonly 3,125 square feet in size) and many of those properties have little or no parking on site. Additionally, providing parking on site frequently is not feasible because lots are typically too narrow (25 feet in width) to provide sufficient stall length and aisle width to allow vehicle back up and maneuvering. Non - profit museums provide a public benefit to the community in that they provide the community access to art and other educational exhibits. In addition, museums are destination uses that attract visitors to the Downtown who typically visit other retail and restaurant uses on the same trip and help support the business community in the Downtown. Museums frequently operate on a more limited schedule than typical businesses and operate during off peak hours such as evenings and weekends when some Downtown uses such as general offices and medical /dental offices are closed. This makes it likely that more street parking is available. Currently, the City has one museum in the Downtown, the El Segundo Museum of Art ( ESMOA). Based upon the size of the museum, nine (9) parking spaces are required in the DSP parking standards. ESMOA cannot provide the parking spaces on site. The museum arranged for the use of nine (9) parking spaces in the Chevron surface parking lots located on the 100 block of Main Street just north of El Segundo Boulevard (southeast corner) during nights and weekends when ESMOA is open to the public and conducts events. However this does not meet the City's requirements for the parking spaces to be available at all times and such off -site parking requires a parking covenant. The museum is not open to the general public during weekdays except by special appointment and has a small staff that does not work extensive hours. As a result, ESMOA does not compete with other office uses for street parking and has limited need to provide parking except for weekends and special events conducted limitedly on Friday nights and weekends. Staff believes that the actual parking demand could be met through a combination of changes to the parking requirements for Non - Profit Museums in the DSP. The City Council could consider an amendment to the Downtown Specific Plan (DSP) Section VII regarding parking for Non - Profit Museums to: reduce the number of parking spaces required for Non - Profit Museums (with or without a Parking Demand Study); and /or allow off -site parking at the Chevron lot or similar property for a limited number of evening and /or weekend events per year without the requirement of a parking covenant (Staff recommends a maximum of 12 events); and /or allow the use of the Parking In -Lieu Fee Program to meet the parking requirements but waive the payment of the Parking In- R 140 Lieu Fee for the Non - Profit Museum; or eliminate parking requirements for Non - Profit Museums. Due to the unique operation and limited hours of the museum, the public benefit provided, and the availability of public parking to meet the needs of the museum, staff recommends that the City Council consider an amendment to the Downtown Specific Plan (DSP) Section VII (Parking) to modify the parking requirements for Non - Profit Museums in the manner described above and /or to amend the Parking In -Lieu Fee Program to allow the waiver of some or all of the fees. Greater detail regarding the general DSP parking requirements and Parking In -Lieu Fee Program are outlined in Item No. 6 below. Planning Commission Discussion. The Planning Commission was not in favor of waiving /discounting the parking in -lieu fees or of eliminating the parking requirements for nonprofit museums. The Planning Commission had some concerns regarding reducing parking requirements as well but did express support for the possibility of allowing a tailored parking program that could include the use of valet parking and off -site parking such as at Chevron (without a parking covenant) for large events and possibly a parking reduction during hours the museum is not conducting large events based upon analysis through a parking demand study 6. Parking In -Lieu Fee Program in the Downtown Specific Plan (DSP) Area The Parking In -Lieu Fee Program is intended to allow property owners to pay a fee instead of providing additional parking for new construction or additions to existing buildings. The current fee is set at $17,500 per parking space. The intent of the program is to encourage expansion of existing businesses, the attraction of new businesses, and the physical improvement of properties in the downtown area. The Parking In -Lieu Fee Program was added in 2003 to the Downtown Specific Plan to supplement existing parking incentives contained in the Specific Plan. Those existing incentives are summarized below: a) Residential uses. No additional parking for tenant /business owner- occupied residential units above commercial uses. b) Restaurants and outdoor dining areas. No parking is required for restaurants less than 500 square feet in size, which do not provide sit -down eating accommodations (take -out), or for outdoor uses including dining and gathering areas, up to 200 square feet. c) Existing Buildings with Permitted Uses. Existing uses in an existing building may change to any other use enumerated in the Permitted Uses section of the applicable Specific Plan District without providing additional on -site parking spaces. d) Parking Demand Study. The Director of Planning and Building Safety may modify the required number of parking spaces or approve joint use or off -site parking, for fewer than 10 spaces, based on the submittal of a parking demand study. Reductions of 10 or more spaces require Planning Commission approval. (Section VII — Parking) e) Historic Preservation. Additions to commercial structures identified as Historically Significant (DSP Exhibit 7) may add up to 50 percent of the existing floor area, not to exceed 500 square feet, without providing additional parking (See attached DSP excerpts). 7 141 C. Information regarding Parking and available Options. In the last few years, as more businesses /properties have taken advantage of the DSP parking incentives, other businesses, residents, and the Planning Commission have expressed concerns regarding the lack of parking in the downtown area. In 2014, the Planning Commission directed staff to relay these concerns to the City Council, which staff did. In a recent Planning Commission meeting, the Commission expressed concern again about these issues and directed staff to present information regarding parking in the downtown at a subsequent meeting. In response to the Planning Commission's direction, staff presented the history and intent of the DSP which is described earlier in this report, including some of the parking - related incentives in Section VII (Parking) of the DSP. In addition to these incentives, Section IX (Implementation and Financing) outlined the elements of a parking management plan for the Downtown Specific Plan area. The DSP anticipated that as the area is revitalized over time that the parking demand would increase and put a strain on the available supply. The proposed parking management plan contained short-term, medium term, and long term options, which are summarized in the table below: Short-term Medium -term Long -term ons Pursuant to Parking Management Plan + Create Visitor Parking Information • Implement a Shared Use Parking Program • Establish Baseline Parking Ratios for the Downtown as a Whole and Monitor over Time + Enhance Directional Signage • Implement Trial Period Shared Valet Parking Program During Peak Season • Add Angled On- street P Install Parking Meters to Manage Parking Turnover and Raise Revenues for Parking Improvements + While Implementing Parking Management Strategies, Continue to Investigate Costs and Feasibility of Added Parking The options listed above are discussed in detail in Section IX (Implementation and Financing) of the DSP. The City has not fully implemented a parking management plan as outlined in the DSP. However, it has taken steps to implement some of the options, such as the addition of on- street parking on Richmond Street and a related study to add more on- street parking in or around the downtown area. 142 Staff believes that the City can build upon the parking management plan which is part of the DSP and expand it to pursue additional options for increasing the parking supply and /or managing the parking demand in the downtown area. The options may range from amending existing DSP regulations regarding parking to making physical improvements. Accordingly, the City Council may take one or more of the following options: 1. Discuss and formulate recommendations regarding the preparation of amendments to parking standards in the Downtown Specific Plan and /or the Parking In -Lieu Fee Program as a collective body; 2. Appoint a subcommittee to work with staff to discuss and formulate recommendations regarding the preparation of such amendments,; 3. Not recommend any changes to the parking standards in the DSP and the Parking In -Lieu Fee Program; and /or 4. Take alternative action. Planning Commission Discussion. The Planning Commission is in favor of pursing amendments to the parking standards in the Downtown Specific Plan and the Parking In -Lieu Fee Program. Additionally, the Planning Commission expressed an interest in forming a subcommittee to work with staff on these issues. , Historically, subcommittees have always been approved and appointed by the City Council. If the City Council chooses to form a subcommittee, the subcommittee will work with staff on these issues and report back to the entire Commission and the City Council at a future date. II. Conclusion and Recommendation The Planning and Building Safety Department recommends that the Council consider directing staff to prepare several amendments to the DSP pursuant to Planning Commission's recommendations including: 1) Tinting Glass on Storefront Windows; and /or 2) Signs for Non - Street Front Uses; and /or 3) building height along street -side property lines; and /or 4) establishing a design review process and defining which types of projects require design review; and /or 5) parking requirements for Non - profit Museum uses; and /or 6) to appoint a subcommittee to formulate potential recommendations regarding the preparation of amendments to parking standards in the DSP and /or the Parking In -Lieu Fee Program; and /or 7) alternatively, discuss and take other possible action related to this item. PAPlanning & Building Safety \0 Planning - Old \PROJECTS (Planning)\ 10 5 1-1075\EA- 105 7\City Council Info Item 07212015\EA 1057 - CC Info Item Report 07212015.final.docx 9 143 I. INTRODUCTION A. Specific Plan Project Description The proposed project is a Specific Plan for the Downtown area of El Segundo, The Plan envisions a ten -year horizon for planning and development purposes. Although the Plan will not "expire" in ten - years, it is anticipated that the goals of the Plan will be achieved within the ten -year planning horizon, and that the Plan will be re- evaluated, updated and revised, if necessary, after ten years. The project includes a General Plan Amendment (GPA 99 -2), a Zone Change (ZC 99 -2) and a Zone Text Amendment (ZTA 99 -5). The Downtown Specific Plan encompasses the majority of the Downtown Commercial (C -RS) Zone, as well as the Civic Center Complex, which is zoned Public Facilities (P -F). The Plan area is generally located west of Sepulveda Boulevard and north of El Segundo Boulevard (Exhibits 1 -3). El Segundo's Downtown is the heart of the community. Due to its location within the community and distance from regional arterials, Downtown remains a small, distinct district approximately two blocks by five blocks in size. The Plan area is currently developed with commercial, residential and public uses, and future development is anticipated to be similar in nature. The entire Specific Plan area is approximately 26.3 acres in size. The majority of the lots within the Specific Plan area are 25 feet wide by 140 feet deep, 3500 square feet in area, although many of the lots have been combined and developed under common ownership. In general, the purpose of the Specific Plan is to provide the opportunity to implement the Vision of the community for the Downtown; to enhance the quality small town environment that the residents currently enjoy. The Plan provides this opportunity by the adoption of new development standards, design regulations, and other criteria. The City Council initiated the preparation of a Specific Plan in response to concerns and requests from the community to enhance the Downtown environment that the residents value so highly. The Specific Plan will provide land use and development standards for the area including, but not limited to, standards for heights, setbacks, density, lot area, outdoor uses, landscaping, parking, loading, circulation and signage. Design standards will also be included within the Specific Plan to regulate site development, street configurations, streetscape (sidewalks, street furniture, bus stops, bicycles), landscaping, lighting (street and pedestrian, decorative and security), architecture and signage. The Specific Plan is divided into six Districts, each having distinct characteristics and standards. Two related projects, which are currently separately underway, are the update of the City's Circulation and Housing Elements. The current and proposed development standards allow a commercial density or floor area ratio (FAR) of 1.0:1. An example of a FAR or density of 1.0:1 is a 3,500 square foot lot would allow a 3,500 square foot building. One strategic site, the City parking lot (17,500 square feet in area) on the northeast comer of Richmond Street and Franklin Avenue, in the 200 block of Richmond Street, is proposed to allow a 1.5:1 FAR. The Specific Plan area currently has approximately 560,000 square feet of commercial uses. For this evaluation, a ten -year horizon was used with an addition of 271,814 square feet of new commercial uses. This is 24% of the maximum 1,123,848 square feet of total build -out allowed by the current zoning and General Plan. The current zoning allows a maximum of 276 dwelling units within the Plan area. This equates to one unit per 25 foot wide lot (12.5 dwelling units per acre), not including the Civic Center site. Currently there are approximately 87 residential units in the Plan area. City of El Segundo 1 Adopted: August 1, 2000 Downtown Specific Plan 145 The final Plan will not allow the development of any new residential units, although the existing units may continue and may be rebuilt if accidentally destroyed. Two locations for plazas have been identified. One is the existing plaza fronting Main Street at the Civic Center and the other is located to the rear of the Pursell Building, (on the northwest comer of Main Street and Grand Avenue), across the alley from the Grand Avenue District (on the northeast comer of Richmond Street and Grand Avenue). Plazas are intensively used gathering places and serve as the hub for neighborhood activity. They are designed to accommodate resting, eating, strolling and people watching. Plazas are typically ringed by restaurants, galleries and other retail uses. Food service and goods from portable retail carts or wagons are often available within plazas. As part of a zone change adopted in September 2005, the western boundary of the Downtown Specific Plan was expanded to include several properties on the north and south sides of West Grand Avenue between the alley west of Richmond Street and Concord Street to establish the new "West Grand Avenue Transitional District." The West Grand Avenue Transitional District is added to encompass several properties that are similar in nature to those within the Plan Area by moving the western boundary of the Plan Area to Concord Street. (Ord. 1387, November 15, 2005) City of El Segundo 2 Adopted: August 1, 2000 Downtown Specific Plan 146 EXHIBIT 1 REGIONAL LOCATION r No Scale W E S 147 Project Are Ypr h scco+' EXHIBIT 2 LOCAL VICINITY Thomas Bras. Imps 2 2 Miles F. � s i• EXHIBIT 3 DOWNTOWN SPECIFIC PLAN -A ff=_- FUEOUNDOOM .. ffoM 0 100 M 300 400 EXHIBIT 3 DOWNTOWN SPECIFIC PLAN cay orsi (Ord. 1387, November 15, 2005) r r J 149 MMIM"AVE, ---rr I PWAVF r -A ff=_- FUEOUNDOOM .. ffoM 0 100 M 300 400 EXHIBIT 3 DOWNTOWN SPECIFIC PLAN cay orsi (Ord. 1387, November 15, 2005) r r J 149 B. Specific Plan Boundary The Plan area includes the 100 -500 blocks of Main Street, the 100 -300 blocks of Richmond Street and the abutting property along Grand Avenue. The 200 block of West Grand Avenue between Concord Street and the alley west of Richmond Street was incorporated into the Specific Plan area in September 2005. The alleys to the east and west of Main and Richmond Street form the perimeter boundaries of the Plan area, with the exception of the 300 block east side of Main Street as the Civic Center Complex extends east to Standard Street. (Ord. 1387, November 15, 2005) The Downtown is divided by three principal streets -Main Street, Grand Avenue, and El Segundo Boulevard. Additionally, three smaller streets - Franklin, Holly and Pine Avenues cross the Plan area, running in an east -west direction. Each of the three principal streets connects to major, region - serving arterials or freeways. El Segundo Boulevard, on the southern boundary of the Plan area, runs in an east -west direction and connects to the 1-405 Freeway and to Sepulveda Boulevard. Grand Avenue, an east -west street, connects to Sepulveda Boulevard on the east and the beach to the west. Main Street runs north and south between El Segundo Boulevard and Imperial Highway, which borders Los Angeles International Airport (LAX). Main Street has an 80 -foot right -of -way with 12 -foot sidewalks and 56 feet of paving, curb to curb. Richmond Street, which runs in a north -south direction and is one block west of Main Street, has a 60 -foot right -of -way, with 10 -foot sidewalks and 40 feet of street, curb to curb. The 1 -105 Freeway is north of the Plan area, immediately north of Imperial Highway. Grand Avenue is one of only two City streets that connects to the beach. It is the principal east -west street in Downtown El Segundo and crosses both Main and Richmond Streets. The portion of Grand Avenue addressed in the Downtown Specific Plan is between Main and Concord Streets. Beyond Concord Street, Grand Avenue crests the hill of an ancient sand dune and disappears from view toward the ocean. Grand Avenue to the west of Concord Street has recently been planted with Cajeput trees to provide a visual welcome to El Segundo. Grand Avenue is one of the widest streets in the City, having formerly been the early alignment of one of the trolley cars that criss- crossed the region before falling victim to the automobile. The right -of -way is 100 feet in width with 10 -foot sidewalks on both sides and an 18 -foot center median, including a 4 -foot median and 7 -foot wide parallel parking areas on each side of the center island. Parallel parking is also provided on both curb lanes. C. Specific Plan Vision In November of 1998, a Downtown Task Force of community and business leaders appointed by the City Council presented a 7 page summary report entitled "Developing a Vision for Downtown El Segundo ". In July, 1999, the City Council re- formed the Downtown Task Force to develop a Specific Plan and Vision Statement for future development of the Downtown area. The Downtown Task Force conducted numerous meetings, and at its final meeting on February 22,2000 adopted a Specific Plan Concept Document including the following Vision Statement. The Planning Commission reviewed the draft Specific Plan Document, developed from the Task Force concepts, and in May, 2000 recommended approval of the Specific Plan, including the following Vision Statement, to the City Council. The following is the Vision Statement for the Downtown Specific Plan adopted by the Task Force: City of El Segundo 6 Adopted: August 1, 2000 Downtown Specific Plan 150 Downtown is the heart of El Segundo. It is the focal point for the community and one of the cohesive elements that ties the community together. The Vision -for the Downtown is to: • Provide a better balance of uses. • Create a more thoughtful and creative use of public space. Organize creative and consistent programming of events and public activities. • Create a consistent public - private partnership to market El Segundo's assets to investors and customers. • Strengthen commitment to the strategic use of key parcels in the Downtown. • Create more attractive landscaping and street furnishings. • Improve signage. D. Downtown Philosophy and Concept The Downtown Task Force also adopted the following Downtown philosophy and concept, as part of the Specific Plan Concept Document which was adopted on February 22, 2000: • Service residents, local employees and visitors. • Maintain a safe and secure environment. • Maintain architectural and economic diversity with a mix of retail, office, service and residential. • Maintain and enhance pedestrian friendly environment. • Enhance the "village" character. • Enhance the "Midwest- feel" and the "Gasiamp" (San Diego) character. • Consolidate retail to encourage synergy between businesses and to facilitate pedestrian access. • Shrink Downtown retail area if supported by market analysis, converting non -core areas to a mix of offices and multi - family residential, to avoid the blight of vacancies. • Encourage a mixture of uses and "target' uses at strategic sites through financial incentives and pro- active marketing and advertising. • Encourage preservation of historically significant buildings on Richmond Street. • Enhance Civic Center Plaza, as the focal point of Downtown. • Continue to support and expand the farmers market. • Use design review process to achieve aesthetic goals. • Establish a Business Improvement District (B.I.D.) -300, 400 & 500 blocks Main Street only. E. Statutory Authority California Government Code Sections 65450 through 65457 provide the necessary authorization for the City of El Segundo to prepare and adopt this Specific Plan. Hearings are required by both the Planning Commission and City Council, after which the Specific Plan can be adopted by the Council either by resolution (as policy) or by ordinance (as regulation). This document has been adopted by ordinance as a regulation. In addition to the Planning Commission and City Council public hearings, two Downtown Task Forces of community residential and business representatives held numerous public meetings and provided the groundwork for the Vision Statement and concepts of the Plan. The Downtown Specific Plan is a regulatory plan which will serve as zoning law for properties within the boundaries of the Plan. All proposed development plans or agreements, tentative or parcel maps, and any other development approvals must be consistent with this Specific Plan and with the General Plan. City of El Segundo 7 Adopted: August 1, 2000 Downtown Specific Plan 151 The Downtown Specific Plan supersedes other regulations and ordinances of the City for the control of land use and development within the Specific Plan boundaries. The Specific Plan may be amended to further the systematic implementation of the General Plan. City of El Segundo Downtown Specific Plan Adopted: August 1,2000 152 VII. PARKING Purpose - The purpose of this section is to provide for adequate parking standards, to assure that parking spaces shall be suitably maintained and available for the use of the occupants of the site and to mitigate potential associated on- street parking and traffic circulation problems throughout the Downtown and surrounding areas. 2. General Provisions - a. No use or building shall be established, erected, enlarged or expanded unless parking facilities are provided and maintained as required by this Section. b. Parking facilities should be designed so that a car within a facility will not have to enter a street to move from one location to any other location within the same facility. c. Bumpers or tire stops a minimum 6 inches in height shall be provided in all parking areas abutting a building, structure, sidewalk, planting area, street or alley. d. All tandem parking spaces, where allowed, shall be clearly outlined on the surface of the parking facility. e. Parking facilities in all Districts shall be designed in such a manner that any vehicle on the property will be able to maneuver as necessary so that it may exit from the property traveling in a forward direction. However, cars may exit onto an alley traveling in a reverse direction. f. Where the application of the following cumulative parking schedules results in a fractional space of .5 or greater, the number of required parking spaces shall be rounded up to the next whole number. g. No vehicular use area, except driveway access to a property, for any residential use shall be located, in whole or in part, in any required front yard or front two- thirds of any required side yard. h. No person, company or organization shall fail to maintain the facilities required to be provided by this Section, or by any applicable provision of prior laws, variance, use permit, or precise plan heretofore or hereafter granted by the Planning Commission or City Council. No required parking shall be utilized in any manner so as to make it unavailable for the occupants, their clients or visitors of a building or use during the hours such building or use is normally occupied except for purposes of utilizing it for Temporary Outdoor Retail Sale Events or Temporary Outdoor Dining in accordance with the requirements of the DSP. This meaning shall not be construed to prohibit security devices. L All permanent on -site parking, loading, or other vehicular use area shall be paved with approved concrete or asphalted concrete. On -site parking areas to be used for no longer than one year shall be surfaced and maintained with an impervious material acceptable to the Director of Planning and Building Safety so as to eliminate dust and mud. All on- site parking areas shall be graded and drained to dispose of all surface water in accordance with the Uniform Building Code. j. Any lights provided to illuminate any parking area shall be arranged so as to direct the light away from any residential dwelling unit. City of El Segundo 51 Adopted: August 1, 2000 Downtown Specific Plan Ordinance No. 1319 153 k. Temporary Use Parking. Outdoor Retail Sale Events and Temporary Outdoor Dining are required to provide parking based upon the parking requirements set forth in the DSP during the time period that such use is in operation. To the extent that the Outdoor Retail Sale Events or Temporary Outdoor Dining is located on parking spaces that are otherwise required for other uses located on the property, then in addition to the Temporary Parking spaces required for the Outdoor Retail Events or the Temporary Outdoor Dining the property owner or tenant is required to provide parking spaced to replace the parking spaces that are being utilized for the Outdoor Retail Sale Event or the Temporary Outdoor Dining. Parking requirements for Temporary Outdoor Retail Sale Events and Temporary Outdoor Dining may be fulfilled by providing sufficient on -site parking, parking through an offsite parking covenant, or by obtaining parking space permits for the City Parking Garage, or any combination of these three options. To utilize Temporary Outdoor Dining, the property owner and tenant, if applicable, must execute an acknowledgement to be recorded in the County Recorder's Office that the Temporary Outdoor Retail Sale Event or Temporary Outdoor Dining use will cease if at any time the parking requirements are not met, including in the event that parking space permits expire and are not re- issued for the City Parking Garage. (Ord. 1429, June 2 2009) 3. Parking Spaces Required - The number of parking spaces required for the establishment of a building or use shall be provided and thereafter maintained at the following ratios; provided, however, that for any building or use enlarged or increased in capacity, additional parking facilities shall be required only for such enlargement or increase. Additional parking facilities need not be provided for enlargements or additions to existing residential units. Unless stated otherwise, parking shall be based on net floor area defined in Section 20.08.420 of the El Segundo Municipal Code. a. Residential Uses: i) Dwelling_ snits /L.ive /work -No additional parking required. People who occupy the residential units will be the ones working in the commercial units, therefore, additional parking spaces would not be needed. b. Nonresidential Uses: i) Bed and Breakfast Hotels -1 space for each of the first 100 rooms; % space for each of the next 100 rooms; and % space for each room above 200 rooms. ii) Retail, offices, commercial.. video arcade, and food-to-go uses -1 space for each 300 sq. ft. for the first 25,000 sq. ft.; 1 space for each 350 sq. ft. for the second 25,000 sq. ft.; 1 space for each 400 sq. ft. for the area in excess of 50,000 sq. ft. No parking is required for outdoor retail uses including gathering areas (such as outdoor party areas), newsstands, coffee carts and flower stands, up to 200 square feet in area. City of El Segundo Downtown Specific Plan 52 Adopted: August 1, 2000 Ordinance No. 1319 154 iii) Restaurants - 1 space for each 75 sq. ft. of dining area, including outdoor dining areas exceeding 200 sq. ft. in area 1 space for each 250 square feet of non - dining areas. No parking is required for restaurants less than 500 sq. ft. which do not provide sit -down eating accommodations, or for outdoor uses including dining and gathering areas, up to 200 sq. ft. in area. iv) Bars - 1 space for each 75 sq. ft., including outdoor areas exceeding 200 sq; ft. in area. v) Medical /Dental offices and clinics -1 space for each 200 sq. ft. vii) Schools - Daycare, pre - school, elementary, middle school and junior high - 1 space for each classroom, plus 1 space for each employee. viii) Schools -High school -7 spaces per classroom plus auditorium or stadium parking requirements. ix) Schools - Adult,_ college, business and trade schools - 1 space for every 50 sq. ft. of gross floor area or 1 space for every 3 fixed seats - whichever is greater. x) Places of Public Assembly (including but not limited to, theaters, auditoriums, banquet_ facilities, meeting rooms, clubs, lodges and mortuaries) -With fixed seats -1 space for every 5 seats.* Without fixed seats -1 space for every 50 sq. ft. of floor area used for assembly purposes. Based upon the Uniform Building Code, areas having fixed benches or pews shall have 1 seat for each 18 inches of length. Dining areas shall have 1 seat for each 24 inches of booth length, or major portion thereof. b. Compact Parking: Compact parking shall not be allowed, except parking spaces provided in excess of the required number may be compact size. c. Parking Reductions: i) Parking Demand Study. The Director of Planning and Building Safety may modify the required number of parking spaces or approve joint use or off -site parking, for fewer than 10 spaces, based on the submittal of a parking demand study. Reductions of 10 or more spaces require Planning Commission approval. Additionally, for any use for which the number of parking spaces is not listed, the Director of Planning and Building Safety or Planning Commission will specify the required number of spaces based on a parking demand study. A parking demand study must include, without limitation, information specifying the number of employees, customers, visitors, clients, residents and owner - occupancy of residence and business (for existing legal non - conforming residential uses), shifts, deliveries, parking spaces, or other criteria established by the Director of Planning and Building Safety. The study may also include the use of valet or attendant parking. ii) Parking In -Lieu Fees City of El Segundo Downtown Specific Plan 53 Adopted: August 1, 2000 Ordinance No. 1319 155 a. The number of parking spaces required by this chapter due to the addition of area to an existing building or the construction of a new building may be reduced by the payment of a parking in -lieu fee established by the City Council resolution from time to time. b. Any residential unit constructed after the adoption of this program, which is subsequently converted to a non - residential use is required to provide parking as required by this chapter for such use or pay a parking in -lieu fee for the floor area converted to the non - residential use. c. Except as otherwise provided, the parking in -lieu fee must be paid before the City issues Certificate of Occupancy. Funds collected by the City from such payment must be deposited in a special fund and used only by the City to acquire and or develop additional parking and related facilities which are determined by the City Council to be necessary to serve the downtown. Funds paid to the City for in -lieu parking are non - refundable. d. For good cause shown, as reasonably determined by the Director of Planning and Building Safety using objective criteria established by City Council resolution, the parking in -lieu fee may be paid over a period of time not to exceed twenty (20) years from the date the City issues a final Certificate of Occupancy. The obligation to pay such in -lieu fee must be secured with appropriate sureties identified by City Council resolution (including, without limitation, a restrictive covenant recorded against real property) and approved as to form by the City Attorney. e. Parking provided by the City will be developed within or adjacent to boundaries of the Downtown Specific Plan. Payment of a parking in -lieu fee does not provide or vest any property owner with a special right, privilege or interest of any kind in any parking facility that may result from the payment of the fee. There is no guarantee that the City will build parking at any particular time or that it will build parking in a location that will be of advantage to the property owner paying the fee. (Ord. 1429, June 2 2009) 4. Mixed Occupancies -In the case of mixed uses in a building or on a site, the total requirements for parking facilities shall be the sum of the requirements for the various uses computed. Parking facilities for one use may be considered as providing required parking facilities for another use, if approved through a parking demand study, a joint -use agreement or another mechanism approved by the Director of Community, Economic and Development Services or the Planning Commission. 5. Parking Area Development Standards - a. Stall sizes: Standard stalls shall be 8.5 feet wide by 18 feet deep; Dead -end parking stall or adjacent to an obstruction shall be 10 feet wide by 18 feet deep; compact parking spaces, only allowed for parking in excess of the Code requirements, shall be 8.5 feet wide by 15 feet deep. b. Aisle widths: Aisle width for angled parking spaces shall not be less than the following: Angles of Parking Aisle Width Clear Parallel to 30 degrees 12 feet 45 degrees 15 feet 60 degrees 18 feet 90 degrees 25 feet *Measured perpendicular to aisle Parking Stall Depth* 16 feet 19 feet 20 feet 18 feet c. Tandem Parking: A maximum of 30% of the total required parking for commercial uses may be tandem. Greater than 30% tandem spaces may be allowed with approval of a parking demand study. Parking spaces provided in excess of the required number may be tandem. City of El Segundo 54 Adopted: August 1, 2000 Downtown Specific Plan Ordinance No. 1319 156 d. Parking of Licensed Recreational Vehicles and Habitable Vehicles: i) Parking of any mobile home, camper, house trailer or other habitable vehicle outside of an authorized mobile home park or licensed recreational vehicle parking facility is prohibited except that such vehicles may be parked on any public property or right of way subject to any applicable parking restrictions, including Section 9.40.010 of the El Segundo Municipal Code. ii) A habitable vehicle parked on private property may be occupied for residential purposes for no longer than 72 hours (outside of an authorized mobile home park) within any 30 -day period. No habitable vehicle may be occupied for commercial purposes except as provided by Section 16.01.140 of the El Segundo Municipal Code. e. Entrances and Exits: The location and design of all driveway entrances and exits shall be subject to the approval of the Director of Community, Economic and Development Services. Access must be from the alley or side street, except for access to handicapped parking stalls if approved through the design review process. Curb cut and driveway widths must be a minimum of 10 feet and a maximum of 30 feet in width. f. Handicapped Parking: Handicapped parking shall be provided in accordance with Part 2 of Title 24 of the California Administrative Code. 6. Loading Standards - The following loading spaces, with the dimensions as listed, are required based on the net square footage of the building or use. COMMERCIAL USES Building — Square Feet Number of Loadin S aces 1- 15,000 0 15,001 - 30,000 1 30,001- 75,000 2 Each additional 100,000 sq. ft. or fraction thereof 1 BED & BREAKFAST HOTEL Building — Square Feet Number of Loading Spaces 1,000 - 15,000 1 15,001- 75,000 2 Each additional 100,000 s . ft. or fraction thereof 1 City of El Segundo Downtown Specific Plan DIMENSIONS Size Feet Width 12 Depth 25 Vertical Clearance 16 55 Adopted: August 1, 2000 Ordinance No. 1319 157 7. Plan Preparation and Permit Approval - A proposed parking plan shall be submitted to the Director of Community, Economic and Development Services at the time of the application for the building permit for the building for which the parking is required, or at the time any required Planning application is submitted. The plans shall clearly indicate the proposed development, including location, size, shape, design, curb cuts, lighting, landscaping, and parking spaces in full compliance with code requirements. No building permit shall be issued until the applicant has presented satisfactory evidence to the Director of Community, Economic and Development Services that parking facilities required by this Section will be provided and maintained. 8. Joint Use and Off -Site Parking Facilities - Parking spaces may be joint use or located off -site on a different lot or lots, subject to approval of a parking demand study and a parking agreement. The Director of Community, Economic and Development Services may approve a parking demand study for joint use and off -site parking for fewer than 10 spaces. The Planning Commission shall review any joint -use and off -site parking for 10 or more spaces. The agreement shall be recorded in the office of the County Recorder, prior to the issuance of a Building Permit. The agreement may include conditions as the Director of Community, Economic and Development Services or the Planning Commission deems appropriate. 9. Sites with Transportation Systems Management (TSM) and Transportation Demand Management (TDM) Plans - The number of required parking spaces may be further modified subject to approval of a Transportation Systems Management or Transportation Demand Management Plan, pursuant to the procedures and requirements of Chapters 20.55 and 20.56 of the El Segundo Municipal Code. 10. Existing Buildings with Permitted Uses - Existing uses in an existing building may change to any other use enumerated in the PERMITTED USES section of the applicable Specific Plan District without providing additional on -site parking spaces, provided that all existing on -site parking spaces provided in connection with the building or structure shall be continued and available for use with the subject building. 11. Failure to Maintain Required Parking - In the event parking facilities required to be provided under this Section, or required pursuant to any application approved in accordance with this Section, are not maintained, the Director of Community, Economic and Development Services may revoke and cancel the certificate of occupancy issued for such structure. Prior to such revocation, the Planning Commission shall hold a public hearing in accordance with the public hearing procedures provided in Chapter 20.90, Procedures for Hearings, Notices and Fees, of the El Segundo Municipal Code. However, if it appears that failure to maintain such required parking was reasonably beyond the control of the person required to maintain the same, the certificate of occupancy shall not be revoked until the owner has had at least 90 days to reestablish the minimum required parking. In the event the certificate of occupancy is revoked, the premises covered thereby shall not be occupied or used for any purpose until a new certificate of occupancy has been issued. City of El Segundo 56 Adopted: August 1, 2000 158 The costs of the three designs that were submitted by the architectural teams range between $539,000 to $613,600, as the firms were given two preliminary budgets of $250,000 and $600,000. The original scope of the project was anticipated to include the demolition and removal of all of the existing concrete Plaza and the installation of landscaping, plaza furniture, and performance and public gathering areas. Recently the scope of the .project has been further refined by the City Council's Downtown Subcommittee. The new scope does not include the removal of the concrete, but instead envisions working with the existing improvements to enhance the area and make it more functional and attractive. It is envisioned that that following elements will be included in the Plaza renovation: portable sound system, fixed lighting, potted landscaping, benches, relocation of existing central sculptures and re-use of the central raised planter area as a stage. It is anticipated that the improvements will not exceed $225,000. The Council has already approved $575,000 of Capital Improvement Program funds (1999/2004 budget) for the project and $30,000 has been spent on the design charette process. The balance of the unallocated Civic Center funds ($320,000) are anticipated to be reallocated to Downtown streetscape improvements or other Downtown improvement projects or programs. Section VIII, E, 1, Design Standards, Plazas, Civic Center Plaza of this Specific Plan, provides more detailed information on the design of the Plaza. D. Parking Management Program Introduction /Summary The City's traffic engineer states that at the present time, parking is not a critical issue in Downtown El Segundo, although there may be a perception by some Downtown shoppers that parking is inadequate. The parking supply and location of parking are generally adequate to serve the existing uses in the area. Downtown patrons may need to walk 1 or 2 blocks to their destination after locating a parking space, however this is typical in a pedestrian- oriented Downtown setting. The Downtown Specific Plan, however, will result in various changes to Downtown El Segundo. The changes may include a different mix of commercial businesses, higher densities, modified street layouts, modified on- street parking and other changes. The need for parking in the Downtown area will change as the Plan is implemented. The turnover in commercial uses, or the potential intensification of land uses, may result in higher parking demand. The location of the parking demand may also shift, and the number of on- street spaces may change due to the streetscape improvements that are ultimately included in the Plan. A parking management plan for the Downtown area must be comprehensive and also flexible enough to respond to the parking challenges that arise as part of the plan. The following strategies are key to the implementation of the parking management plan: Develop a parking management plan that looks ahead to the ultimate build out of the Specific Plan area and considers the potential "worst case" parking demand scenario. City of El Segundo 127 Adopted: August 1, 2000 Downtown Specific Plan 159 • Phase in parking modifications and improvements over time as the Specific Plan is implemented. Seek lower cost, high efficiency solutions first, followed by higher cost capital improvements when they are needed. • Work cooperatively with area businesses and other stakeholders since they are the ultimate users of the parking system. • Consider the potential impacts not only in the Downtown area but also on adjacent residential neighborhoods. 2. Current Parking Conditions and Standards The Downtown area currently is served by surface parking that is a combination of on- street curb parking and off- street private and public parking in a series of lots. Off - street parking is primarily provided in back of businesses via alley access, with some lots also fronting Main - and Richmond Streets, and Grand Avenue. There are a total of approximately 1,285 public and private off - street spaces in the Downtown Specific Plan area. In addition, there are approximately 370 public curbside spaces. Curb parking in mostly regulated by a two -hour maximum limit, from 8:00 A.M. to 6:00 P.M. that is enforced via tire marking. Additionally there are 20- minute maximum single spaces scattered throughout the Downtown, again with the 8:00 A.M. to 6:00 P.M. limit and in the 300 block of Main Street no parking is allowed from 2:00 P.M. to 8:00 P.M. to accommodate the farmers market. Blocks with the highest amount of off - street parking, all in private lots, include the 100 block of Richmond Street on the east side (200 spaces), the 100 block of Main Street on the east side (115 spaces) and the 300 block of Richmond Street on the east side (110 spaces). All other blocks have 95 or fewer spaces, with the lowest block containing 35 spaces. Seven percent of the off - street spaces are compact size and the remainder are standard size. The current parking development standards for the Downtown area (CR -S Zone) include provisions for joint use parking, off -site parking, compact spaces, parking demand study reductions and tandem spaces. Additional parking is required for new square footage, however, the Zoning Code allows an existing building to change from one use to any other permitted use in the zone without increasing required parking, as long as all of the existing parking is retained. The majority of the existing buildings in the Plan area provide on -site parking: although generally it is limited to only 3 to 5 spaces per 25 -foot wide lot. These current provisions allow some flexibility but need to be reviewed in the overall context of the Specific Plan, and revised to ensure that parking is being managed in an efficient manner. Additional flexibility, creative parking solutions, and administrative level of review is desirable to encourage new development within the Plan area, while still ensuring adequate parking facilities for new development. 3. Elements of the Downtown Parking Management Program To be successful, a parking plan for the Downtown area must serve a variety of businesses, civic uses and residents. Each parking "user" group has different needs and therefore parking for each group must be considered differently. For example, employees of Downtown businesses use parking for extended periods throughout the day and they are able to park farther away from their destination than customers of the City of El Segundo 128 Adopted: August 1, 2000 Downtown Specific Plan 160 commercial businesses. Certain businesses generate high demand mid -day (office, some commercial retail uses) while others generate lunchtime and evening demand (restaurants for example). The parking management plan must accommodate each user group to most efficiently serve their needs without impacting the other groups. The cost of developing surface off - street parking may include purchase of the land and construction of the parking area, driveways, signing, striping, drainage, landscaping, lighting etc. Subterranean or surface parking is more expensive due to the capital costs of the structures. Therefore, it is important to consider a wide range of parking solutions in addition to adding more parking. The types of parking improvements recommended for the Specific Plan include, but are not necessarily limited to, the following: Parking management techniques including better parking signage and information (brochures and maps), modifying time limits, consideration of parking meters and fees. Parking services such as a "joint" valet parking program for a series of adjacent businesses. ID Cooperative parking solutions such as shared use agreements among businesses in the Downtown area that would allow one business to use parking at another business during its off -peak hours. On- street parking modifications such as adding parking via the use of diagonal parking instead of parallel curb spaces (Grand Avenue and east -west side streets off of Main Street and potentially portions of Main Street). Construction of off - street parking in surface lots or structures with fee agreements for Downtown businesses that come into the area and require new parking. The hallmark of this plan will be to phase in the necessary parking improvements over time, as needed, based on the changes occurring Downtown. Lower cost, less capital intensive improvements should be implemented first. However, the ultimate need for additional parking should be planned for at this time to allow adequate lead time to identify and obtain appropriate sites and finance the purchase of land (if required) and construction costs. A phased approach to parking improvement in the Downtown area is described. 4. Parking Management Options The options presented in this section are oriented to the multiple user groups that park Downtown. It is not feasible, nor desirable to develop a parking management plan that simply addresses the needs of one user group at the expense of other user groups. For example, the plan must not add commercial parking without addressing resident concerns, or conversely create "resident only" parking without recognizing the need to maintain access for the public. Therefore, a series of options are presented that address the many parking related issues. Table 1 summarizes the options. City of El Segundo 129 Adopted: August 1, 2000 Downtown Specific Plan 161 a. Short -Terra Parking Management Captions- (implement upon adoption of the Specific Plan) Option: Create Visitor Parking Information Guide /map Discussion: Many cities and Downtown districts have created user - friendly maps and parking guides that are oriented toward the Downtown visitor. The guide would include clear maps showing all public parking, as well as information regarding time limits and rates (if applicable). The guide /map should be professionally prepared with high quality graphics and should be made available at public venues (City Hall, libraries, etc.) and distributed to all businesses that would be willing to make them available to customers (e.g., on the counter at stores, in offices and at restaurants). Option: Implement a Shared Use Parking Program Discussion: The most under - utilized parking throughout the Downtown is in off - street private parking lots. It is important to recognize that the use of private lots is not a universal solution to parking problems since it requires the cooperation of private land owners who may have specific reasons for not sharing parking. However, use of selected lots may be a method to help relieve the parking problem. Traditional impediments to the use of private parking include lot owners' concerns over liability, safety, vandalism and interference with their own business. While some of these concerns are well founded, some can be overcome through the use of negotiated agreements and common insurance policies that are obtained with the assistance of the City. Additionally, the City could enter into agreements with property owners of large parking lots with excess capacity (such as the Chevron parking lots) and "sublease" the spaces out to businesses in need of additional spaces. This recommendation will require the following initial actions by the City: survey private lot owners regarding the willingness to consider shared use of parking. investigate the availability of insurance coverage for public use of private lots and assist businesses in obtaining the insurance. • consider police or private patrol to monitor the private lots. • after identifying potential sites, secure agreements for use of the lots by adjacent businesses, determine parking fees (if any) to be charged, develop shared use parking contracts that specify hours of operation, maintenance, insurance requirements and other pertinent issues. develop signage and re- stripe private lots if needed on case -by -case basis. City of El Segundo 130 Adopted: August 1, 2000 Downtown Specific Plan 162 Option: Establish Baseline Parking Ratios for the Downtown as a Whole and Monitor over Time Discussion: Although each new business should not be required to provide parking on- site, the Downtown as whole will require new parking as development occurs. Therefore, the current parking surplus should be identified via detailed parking and land use surveys. The surveys will compare parking requirements based on standard parking ratios to the amount of parking available in the Downtown. Then, as new development occurs, the remaining surplus would be monitored on an on -going basis. New businesses or development— that does not provide parking could pay into a parking "in -lieu" fund that would be used to develop joint parking areas when needed. When the parking demand gets within approximately 80 to 85 percent of the parking supply, then new parking should be provided. This type of parking "budget" would allow new businesses to come into the Downtown area without undue burdens to provide more parking by themselves. Lot Utilization - approximately every six months conduct hourly surveys of the number of spaces utilized in key public and private lots and on- street for a weekday and Saturday. Also conduct regular monitoring of land uses added or subtracted and their associated parking requirements. Land Use Patterns - Establish a database that is updated at least every six months that includes the type of business on each parcel, building area and amount of parking provided. A parking demand spreadsheet is also then updated bi- annually that will estimate the total parking demand for the Downtown, which is compared to the total parking supply. Option: Enhance Directional Signage Discussion: The signage is generally clear, consistent and covers most of Downtown. Some additional signs would help to further clarify the location of some Downtown lots, and to direct vehicles to alley access parking areas. A unified theme for directional signs should also be developed as part of the Specific Plan. b. Mid -Term Parking Mana ement 4 tions- im lement when needed after Plan adoption) Option: Implement Trial Period Shared Valet Parking Program During Peak Season Discussion: As development and activity intensifies in the Downtown area, a peak season shared valet system would provide the convenience of on- street parking for business patrons and allow the use of more remote available parking. This service will only work with a minimum amount of activity generated by a group of nighttime attractions such as restaurants and shops. This measure is not recommended until the perceived demand is great enough to cover the costs of the service. The valet would service a group of adjacent businesses. This may require the removal of a few on- street parking spaces during the time of valet operation. City of El Segundo Downtown Specific Plan 131 Adopted: August 1, 2000 163 It is recognized that some shopping trips require parking immediately adjacent to the business (dry- cleaners, take -out coffee, etc.), however, many visitors are willing to walk a few blocks during more extended visits. For the valet service, there would be a fee charged per vehicle of approximately $5 or $6 (to be negotiated with the valet operator), which would cover all of the costs. If it was determined that this cost is too high for the customers, the City and /or businesses could subsidize the program, thereby reducing the fee to the valet patrons. All insurance, materials and other costs would be covered by the valet operator within the $5 or $6 per vehicle fee. Option: Add Angled On- street Parking Discussion: This option would add on- street parking where it would be most needed in the future as development occurs. Main Street only has sufficient width for angled parking on one side, however, angled parking may actually reduce the number of on- street parking spaces due to the elimination of parking at the corners to accommodate a left -turn pocket. Angled parking is feasible on Grand Avenue if the median parking area is removed. Also, it may be feasible to provide angled parking on one or more side streets, such as the 100 blocks east side of Holly and Pine Avenues, which connect to Main Street, by converting the streets to one -way flow. This option would be implemented in conjunction with other streetscape /design options as part of the overall Specific Plan. C. Longer Term Parking Management O tions- im lemont after short and mid term measures and as development warrants Option: Install Parking Meters to Manage Parking Turnover and Raise Revenues for Parking Improvements Discussion: One of the most effective parking management tools is pricing. Many persons using Downtown businesses will be willing to pay for parking depending upon the nature of the business they are visiting in the area. Local employees, for example, will be less likely to want to pay for metered parking. Therefore, prime curbside spaces can be reserved for customers via the use of meters and time limits. With reasonable rates and time limits, meters do not harm businesses while they help to properly allocate parking spaces to the various user groups. Obvious disadvantages to meters include aesthetics and the perception that they will drive away business patron customers. Options: While Implementing Parking Management Strategies, Continue to Investigate Costs and Feasibility of Added Parking Discussion: When considering potential growth patterns Downtown and given the City's Zoning Code which allows continued growth without providing more parking (for new businesses in existing buildings that maintain existing non- conforming parking), more get:1eral public parking will be necessary in the future if density increases without adding parking. The number of added parking spaces can be determined more precisely following implementation of the highest priority management strategies. City of El Segundo 132 Adopted: August 1, 2000 164 Downtown Specific Plan Building new parking will take several years due to the need for environmental clearances, environmental studies, design and construction. Therefore, the City should continue to investigate the engineering feasibility, costs and environmental consequences of adding parking Downtown at the same time that parking management strategies are being tested. Also, use of an in -lieu fee would provide funding for parking over time as businesses turn over or parcels are redeveloped. City of El Segundo 133 Adopted: August 1, 2000 Downtown Specific Plan 165 EXHIBIT 6 SUMMARY OF PARKING MANAGEMENT OPTIONS City of El Segundo 134 Adopted: August 1, 2000 Downtown Specific Plan 166 Relative Cost to Implement OPTIONS DESIRED EFFECTS /ISSUES H, M,L(1) Short -Term Parking Management Options • increase awareness of parking opportunities Low • more effective use of available parking Create Visitor Parking • need support of business community to (approximately $5,000 to Information Guide/Map circulate guide/map $10,000) • better utilize available private spaces Low Implement a Shared • would require additional detailed analysis and Use Parking Program coordination with private property owners (staffladministration costs) . identify current parking surplus Moderate • monitor development as it occurs and its impact Establish Baseline on overall parking operations (staff /administration costs Parking Ratios for the add new parking or take other actions when equivalent to several hours Downtown as a Whole supply reaches approximately 85% of demand, per week, after initial labor and Monitor Over Time prior to reaching a critical point intensive inventory) • provide more clear and consistent signage Enhance Directional better utilize alley- access parking Moderate Signage enhance aesthetics Mid -Term Parking Management Options • provide convenient customer parking Low to Moderate Implement Trial Period • assist parking impacted business Shared Valet Parking • need to analyze potential sites and select ($5,000 to $15,000 per Program During Peak Contractor season for City support) Season • provide more spaced via use of angle rather Moderate Add On- street Angle than parallel curb parking Parking • slows traffic, promotes pedestrian use (costs for signing and striping) (1) Cost. H - High Cost associated with major capital expenditure, M - Moderate Cost for physical improverments and/orstaffadministrative costs, L - Low Cost reflecting limited staff time allocation or minorsuppliesiequipment cost. City of El Segundo 134 Adopted: August 1, 2000 Downtown Specific Plan 166 Longer Term Parking Management Options • manage the parking supply, enhance Moderate to High turnover for businesses Install Parking Meters • prevent all -day parking by employees in (Initial cost, ultimately self on Selected Streets prime spaces supporting) • raise revenues needed for parking expansions • provide added patron and employee parking High to Very High • remove employee parking from adjacent While Implementing residential streets (surface - $1500 per space, Parking Management • requires additional detailed analysis of structure approximately Strategies, Continue to economic factors $7,500 to $15,000 per space, Investigate Costs and $150,000 to $1.5 million for Feasibility of Added 100 spaces) depending on Parking surface or structure and other details (1) Cost H - High Cost associated with major capital expenditure, M - Moderate Cost forphysical improvements and/or staffadministrative costs, L - Low Cost reflecting limited stafflime allocation orminorsupplies&quipment cost City of El Segundo 135 Adopted: August 1, 2000 Downtown Specific Plan 167 E. Public Events, Activities and Programming The ongoing scheduling, coordination and implementation of special events in the Downtown area are seen as a key component in the effort to revitalize the Downtown. Downtown events enhance the image that the Downtown is the center of activity in the community. In order to provide creative, diverse and high quality events and programs throughout the year in Downtown, the City retained an Events Coordinator /Facilitator in June of 1999. The events coordinator met with the Council Downtown Revitalization Subcommittee, DES I (the Downtown subcommittee of the local Chamber of Commerce), and the City's Event Coordination Steering Committee and developed a draft list of events. These include events such as a Main Street Bike Parade, June Jamboree -Food and Music Festival, Concierge Day, Annual West Fest, and Scavenger Hunt, designed to attract local and nearby residents to the Downtown year round. This will increase the awareness level of the types of shops and services that are available in the Downtown which will directly benefit local residents, merchants, and property owners by creating a broader and consistent customer base. Many of the events include participation by and coordination with other groups and local service organizations such as the Chamber of Commerce, Rotary, and Kiwanis. The new events are intended to complement existing successful Downtown events (such as the Richmond Street Fair, Main Street Cruise, and the Holiday Parade) by coordinating new promotional programs around the existing schedule of events. In addition to developing, organizing and implementing various monthly events, the Coordinator also acts as a clearinghouse to coordinate the City of El Segundo Master Event Calendar. This central location for business owners and residents to access event information is seen as key to planning future events to eliminate potential date conflicts and to help ensure successful events with maximum participation. The Master Calendar includes maintaining a website calendar and issuing press releases. The existing weekly farmers market in the 300 block of Main Street, initiated in July of 1999, is also one of the key Downtown events, being managed separately from the other Downtown events by the Recreation and Parks Department. The budget for the farmers market includes approximately $35,000 of 1999/2000 General Fund monies. The farmers market generates approximately $4000 a month during the 3 summer months and $2000 a month during the balance of the year, a- total of approximately $30,000 in revenue annually. The City Council approved $20,000 of General Fund monies in both the 1998/1999 and 1999/2000 budget years for the Downtown Events Coordinator, although the 199811999 funds were not spent and were carried over to the 1999/2000 budget. An additional $10,000 was allocated from the 1999/2000 Downtown marketing materials account and will be used for the Downtown Food and Music Festival, scheduled for June, 2000. Subject to City Council direction, it is anticipated that future budget years may have approximately $30,000 annually in General Fund monies for Downtown Events. F. Marketing, Advertising and Promotion Marketing and promoting the Downtown to attract new businesses, retain existing quality businesses that meet the goals of the Plan, and advertise Downtown services, businesses and events, are key components to a successful Downtown. City of El Segundo 136 Adopted: August 1, 2000 Downtown Specific Plan •: The City Council approved retaining a retail recruitment firm in January, 1999 in an effort to place new highly desirable retail businesses in selected key locations Downtown. However, priorities were shifted and the $35,000 approved in the 1998/1999 budget year from the General- Fund was reallocated to the Downtown Events programming. Additional funds of $14,500 were allocated in the 1999/2000 budget year, and $10,000 of this was recently reallocated to the Downtown Food and Music festival (discussed above) and the balance will be used for banners to promote the farmers market. It is anticipated that in the 2000/2001 budget year, additional funds of approximately $20,000 will be requested for retail recruitment. The firm selected will have to have proven success in placing businesses as part of successful downtown revitalization programs, and work closely with Downtown property owners. Promotional materials prepared and distributed by the City include a Downtown Map with Points of Interest. This map was developed originally in 1998 and is regularly distributed to the Chamber of Commerce, area hotels, City Hall, Public Library, Downtown businesses, and new companies in town. The map provides general information about the Downtown and is keyed to a list of retail and restaurant uses in the Downtown. This map should be updated as part of the Downtown revitalization effort to ensure that it provides up to date and accurate information. Another promotional program is the installation of banner poles, banners, and flags on Sepulveda Boulevard, a State highway with approximately 70,000 vehicle trips per day, to publicize City Events and promote the Downtown. Two types of banners are envisioned. The first would use the existing median light poles to install flags (approximately 3 feet by 8 feet) to publicize community events. There are 35 existing light poles on Sepulveda, Which could accommodate two flags each, located on each side of the pole. The second type of banners would require the installation of two banner poles, with mounting hardware and cables at each location. Banners would be approximately 3 feet wide by 40 feet long and would hang over the middle of Sepulveda Boulevard. Installation and removal of the flags or banners would be an additional cost of approximately $400 for each set of flags or banners for each installation and removal. In February of 2000, the City Council approved re- allocating $60,000 from the City "welcome monument" project, previously approved in the 1999/2000 Capital Improvement Program budget, to the banner project. The $60,000 includes the installation of the banner poles only, (four poles at two locations) not the banners. General fund monies of $4,500 are. available for banners (Downtown marketing materials) and it is anticipated that this will be used for one large (3 -foot by 40 -foot) banner to advertise the Downtown Farmers Market. Other Farmers Market advertising which has been used, that could also be used for other efforts, includes cable television advertising in nearby communities, advertisements in area newspapers, and advertisements on internal e-mail networks for major corporations located in El Segundo. Any additional funds remaining from the banners will be used to promote other Downtown events, It is anticipated that the City Council will review a request for additional funds for other banners in the near future. In addition, it is anticipated that event sponsors and coordinators would pay to install banners to promote their individual events. Other types of marketing could include advertisements, flyers, billboards, or other promotional materials. City of El Segundo 137 Adopted: August 1, 2000 Downtown Specific Plan 169 A lunchtime shuttle to bring employees from the business center of El Segundo, west of Sepulveda Boulevard, to the Downtown has been explored in the past and could be analyzed further if desired. The Chamber of Commerce and a BID could also be involved with promoting and advertising the Downtown. G. Development Incentives Development incentives can be used as a tool to attract and retain quality businesses in the Downtown. Through the Business Attraction Program (Chapter 3.06 of the El Segundo Municipal Code) and the City's economic development program, the City currently offers numerous incentives for qualified target businesses throughout the City. The incentives apply to the Downtown area also, and are proposed to continue. These incentives include: 1. Expedited and reduced cost entitlements: Permit approvals may be expedited through the Community, Economic and Development Services application and permit processes at the request and the expense of the applicant. The City may enter into agreements that guarantee that permits will be reviewed within a certain time frame, as agreed to by the City and the applicant ahead of time. If the City does not review the plans within the established time frame then all associated City fees are refunded. Building Safety Division fees are negotiable and may be reduced as much as 50 %. 2. Local tax credits and rates: Business License Tax: The business license tax can be reduced and /or eliminated if El Segundo is used as a point of sale. The tax will be offset by the amount of the sales tax generated to the City in the previous year, up to the point where zero fees are due to the City. Utility users tax: Gas, water, electric, and telephone taxes are negotiable, up to the point where zero tax is required. Currently these rates are 3% for gas, water, and electric, and 2% for telephone. Transient Occupancy, Tax: The City's transient occupancy tax for hotel users is currently 8 %, one of the lowest in Los Angeles County. Additional incentives could be provided in the Downtown Plan Area such as the reduction, or elimination of traffic impact fees and the further reduction of Planning and Building Safety Division fees. 3. Removal of Nonconforming Signs: The City finds that in order to enhance the environment of the Downtown it is desirable to encourage the removal of nonconforming signs at a rapid pace. Therefore, the City may offer owners of nonconforming signs the following incentives to hasten their removal. City of El Segundo 138 Adopted: August 1, 2000 Downtown Specific Plan 170 In order to qualify for the nonconforming sign removal incentive, a sign proposed to be removed must meet the following requirements. The sign must have been a legal, conforming sign at the time of its placement. (In other words, the sign cannot be illegal). The sign must be located in the Main Street District (300 -400 Blocks Main Street). The sign shall not be an abandoned sign at the time of application. In the granting of nonconforming sign removal incentives the City will apply the following priority ranking schedule: roof signs, pole signs (freestanding sign over 10 feet high), internally illuminated signs, and plastic signs. Owners of nonconforming signs may, at their discretion, choose to participate in the following sign removal incentive program. The City will select a number of applicants each year to participate in the' program based on the priority of signs provided above and the availability of funds. The nonconforming sign removal incentive program is a three -year program commencing on the effective date of this Specific Plan. The program is designed to encourage the rapid removal of the least desirable types of signs by providing larger incentives in the early years and tapering off to no incentives in the fourth year. The incentives which may be provided are as follows: • Years one and two Free removal of nonconforming sign. Free design service to provide conforming, attractive sign sketches. • Year three Free removal of nonconforming sign * Those participants availing themselves of the free design service must agree to utilize one of the alternative sketches provided and to erect a new sign within three months of receiving the sketch designs. if said new sign is not erected, the participant will be required to reimburse the City for the cost of the sign design service. The removal of non - conforming signs program could be financed through General Fund monies or a Business Improvement District (BID). H. Historic Preservation The City will provide incentives to owners of structures in the Richmond Street District (100- 200 blocks Richmond Street) to maintain, preserve, and improve their historic properties on a completely voluntary basis. Eligible structures are not required to participate in the incentive programs. Only historically significant structures, as identified on the attached map, are eligible for these incentives. The program is a two -part approach to encourage the preservation of El Segundo's historic past. The first part is a series of incentives (regulatory or financial) to encourage historically significant properties to continue to function without major structural alterations that would affect the historical features of the building. The second part is a strong "disincentive" to discourage demolition of historically significant structures by owners which had used any incentive. This second approach does not prohibit the demolition of a historic structure if the owner has not received regulatory or financial incentives from the City. City of El Segundo 139 Adopted: August 1, 2000 Downtown Specific Plan 171 Protecting the cultural heritage and historical architectural resources that are found in the Richmond Street District is part of the overall goal/ for the revitalization of the area. This program seeks to give owners of eligible historic properties relief from the contemporary municipal codes, ordinances, taxes and laws levied on newer contemporary structures. By assisting the owners of historic properties, the authenticity of the character of Richmond Street can be preserved, thus improving the economic climate for all owners and merchants. City of El Segundo 140 Adopted: August 1, 2000 Downtown Specific Plan 172 EXHIBIT 7 HISTORICALLY SIGNIFICANT STRUCTURES GRAND AVE. C) CL c:> C:) C\j ---225- 223 22 t- 215 15 1211-213 209 203 139 * 131 * 1 123-129 41 121 117 115 z 0 2 r * 216-220 11 FRANKLIN AVE. * 146 142 tF pan EL SEGUNDO BLVD. ,a Historically Significant Structure N w 4w Net (Not to scale) 173 1. Regulatory Incentives Historically significant properties are eligible "to apply for the following preservation benefits. The granting of any benefit shall be conditioned upon a written agreement between the City and property owner that ensures preservation of the building's historic character and strongly discourages future demolition. Government Code Section 37361 allows specific zoning criteria for historical buildings. a. Parking Commercial historic structures may be granted a reduction in parking requirements, to a maximum of 50 percent, based on a Parking Demand Study and the degree to which the historic character of the building is preserved and /or enhanced. b. Building Permit and Planning Application Fees All building permit and planning application fees for historically significant structures will be waived by the Director of Community, Economic and Development Services (subject to City Manager approval) for those proposed projects compatible with preserving the historic character of the subject building. c. Business License Fees Local business license tax fees will be waived or reduced for historically significant structures, by the Director of Community, Economic and Development Services, (subject to City Manager approval) for those projects that have completed construction that has renovated, improved, or preserved the historical character of the subject building. d. Additions to Historic Commercial Structures Historic commercial structures may add up to 50 percent of the existing floor area, not to exceed 500 square feet, without providing additional parking and without bringing other existing nonconformity's into compliance, except for permanent signs, with current Specific Plan Standards. The structures would still be required to comply with the floor area ratio (FAR) requirements of the district. e. Setback Flexibility Additions to historically significant structures may be allowed to maintain setbacks up to the line of existing encroachments, provided that all setbacks as required by the Uniform Building Code, are maintained for new construction. State Historic Building Code The California State Historic Building Code (SHBC) provides alternative building regulations for the rehabilitation, preservation, restoration or relocation of historically significant structures. The SHBC may only be used for officially designated historically significant structures, (cultural resources) or in official Historic Districts, in accordance with regulations detailed in Chapter 20.52, Historic Preservation, of the El Segundo Municipal Code. City of El Segundo 142 Adopted: August 1, 2000 Downtown Specific Plan 174 These standards would be applied during the City's building permit procedure as this code would supplement or replace the Uniform Building Code (UBC) requirements. g. Rehabilitation Tax Credit A tax credit may be available for historically significant structures if work performed on the structure constitutes a "Certified Rehabilitation." The tax credit may only be used for officially designated historically significant structures, (cultural resources) or in official Historic Districts, in accordance with regulations detailed in Chapter 20.52, Historic Preservation, of the El Segundo Municipal Code. h. Conservation or facade easements A conservation or facade easement is a contract between private property owners and qualified non - profit organizations (which may be the City). The easements enable a property owner to preserve a historically significant building in perpetuity in return for certain tax benefits. The easement may only be used for officially designated historically significant structures, (cultural resources) or in official Historic Districts, in accordance with regulations detailed in Chapter 20.52, Historic' Preservation, of the El Segundo Municipal Code. 2. Financial Incentives a. Mills Act Contracts- Property Tax reductions As a preservation incentive, historic property agreements offer advantages to both the City and the property owner. These agreements, commonly referred to as "Mills Act contracts," provide for property tax relief for owners of qualified historic properties who agree to comply' with certain preservation restrictions. The tax credit may only be used for officially designated historically significant structures, (cultural resources) or in official Historic Districts, in accordance with regulations detailed in Chapter 20.52, Historic Preservation, of the El Segundo Municipal Code. For purposes of this Specific Plan, this section does not detail all of the tax and revenue information of the Mills Act. This section does not provide contracts, complete Government Code sections, or Tax Code information. Any individual interested in more details on a Mills Act contract for their historic property is urged to contact the State's Office of Historic Preservation for more information. The use of Mills Act contracts gives the City the flexibility to deal with historic structure on a case by case basis. The City has the option to choose which properties are suitable for the incentive by evaluating various factors, such as the Significance of the building to the community, development pressures on the site, or the need for rehabilitation. These contracts can be used both as a tool to preserve an individual building and as part of the broader Specific Plan Implementation Program. City of El Segundo 143 Adopted: August 1, 2000 Downtown Specific Plan 175