HomeMy WebLinkAboutReso - CC - 069-2018RESOLUTTON NO. 069-201 I
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME
AUTHORIZING THE CIry MANAGER TO EXECUTE AN EXCLUSIVE NEGOTIATION
AGREEMENTwlTH TOPGOLF USA BURLINGAME, LLC
WHEREAS, on June 20,2016, the City issued a Request for Proposals (RFP) for
the lease management of the Golf Center site for the operation of golf or other
recreational or entertainment activities that would be open to the public; and
WHEREAS, initial work on design and environmental analysis has begun, with
the project intending to submit a formal design and environmental application to the City
during the summer of 2018; and
WHEREAS, Topgolf and the City wish to enter into an exclusive negotiation
agreement (ENA) to govern their relationship during the design and environmental
review process; and
WHEREAS, the purpose of the ENA is to assure Topgotf that the City will not
market the property while it is working to secure entitlements and to assure the City that
the environmental and design review processes remain independent and objective and
that the City is not bound to accept the project prior to those processes' completion.
NOW, THEREFORE, BE lT RESOLVED that the City Council authorizes the City
Manager to execute an exclusive negotiation agreement for the Burlingame Golf Center
site with Topgolf in the form attached to this Resolution.
Michael Brown , Mayor
l, Meaghan Hassel-Shearer, City Clerk of the City of Burlingame, certify that the
foregoing resolution was introduced at a regular meeting of the City Council held on the
21st day of May, 2018, and was adopted thereafter by the following vote:
Councilmembers: BEACH, BROWNRIGG, COLSON 'r(AYES:
NOES:
ABSENT:
Councilmembers: NONE
Councilmembers: ORTIZ
EIGHRAN
eag Fiassel-She arer, City Clerk
WHEREAS, on March 21, 2017, the City Council selected Topgolf lnternational
as the preferred operator of the site; and
AGREEMENT TO NEGOTIATE EXCLUSII'ELY
THIS AGREEMENT TO NEGOTIATE EXCLUSNELY ("Agreement") dated
for reference purposes as of May
-,
2018 ("Date of Agreement"), is entered into by
and between the CITY OF BURLINGAME, a Califomia municipal corporation (-City)
and TOPGOLF USA BURLINGAME, LLC, a Delaware limited liability company
("Developel').
RECITALS:
A. On or about October 12, 2016, Cily issued a Request for Proposals
C'RFP) seeking qualified developers interested in developing the approximately l3-acre
parcel of City-owned land formerly occupied by a golfdriving range ftnown as the
Burlingame Golf Center), located at 250 Anz-a Blvd., Burlingame, Califomi4 adjacent to
the Burlingame Soccer Complex (commonly known as Murray Field), as depicted in
Exhibit A auached hereto ("Site').
B. On or about December 4, 2016, City reviewed three proposals from sports
and recreation-related entities, including Developer. Developer's proposal is to develop a
sports entertainment facility on the Site, substantially similar to Topgolf facilities it has
built and continues to operate in other cities in Califomia and across the United States
and abroad, as further described herein.
C. City and Developer commenced preliminary discussions regarding the
proposed Topgolf proj ect in January of2017, and subsequently exchanged versions ofa
proposed draft letter of intent/term sheet. On July 3 , 2017 , Cily Council unanimously
voted to continue negotiations with Developer.
D. City and Developer now desire to enter into this Agreement in order to
memorialize preliminary negotiations accomplished to date, and to set forth the terms
under which City and Developer will exclusively negotiate the terms and conditions ofa
proposed Lease Disposition and Development Agreement (together with the Ground
Lease, the "LDDA") providing for City's ground lease of the Site to Developer for
development ofthe Project (defined below) on the Site.
NOW TTIEREFORE, for good and lawful consideration, the receipt of which is
hereby acknowledged, City and Developer hereby agree as follows:
1. Nesotiations.
1.1 Good Ne otiations City and Developer, acknowledging that time is
ofthe essence, agree for the Negotiation Period (as defrned in Section 1.2 below) to
negotiate diligently and in good faith to prepare an LDDA to be considered for approval
by City and Developer, in the manner set forth herein, with respect to the ground lease
AGREEMENTS:
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and development ofthe Site. City agrees, for the Negotiating Period set forth in Section
1 .2 below, not to solicit, entertain offers or proposals, or negotiate with any other person
or entity regarding the sale, lease or development of the Site or any portion thereof. An
LDDA resulting from the negotiations hereunder shall become effective only ifand after
an LDDA has been considered and approved by the Developer and the City Council at a
public hearing called for such purpose. If an LDDA is executed by City and Developer,
the LDDA shall thereafter govem the rights and obligations ofthe parties with respect to
the development of the Site. City shall deliver an initial draft of the LDDA and Ground
Lease to Developer on or before July l, 2018. The parties will negotiate with diligence
and good faith thereafter to reach a mutual resolution of all issues as quickly as possible.
1.2 Duration of this Aereement. This Agreement shall become effective upon
execution by the pades and shall remain in effect until December 31, 2018
("Negotiation Period"). Upon expiration of the Negotiation Period, this Agreement
shall automatically terminate, unless the Negotiation Period has been mutually extended
by City and Developer as provided below. The City Manager has the discretion to
approve an extension of the Negotiation Period for up to an additional ninety (90) days, if
he (she) determines in his (her) sole discretion that Developer has made substantial
progress towards meeting the performance milestones identified in the Schedule of
Performance attached hereto as Exhibit B ("Schedule of Performance"). Any flnther
extension of the Negotiation Period shall require the approval of the City Council, which
may be granted or denied in its sole discretion.
1.3 Deposit. Within five (5) business days following execution of this
Agreement by Developer and City, Developer shall submit to City a good faith cash (or
check) deposit in the amount of forty thousand dollars ($40,000) ("Deposit"). City shall
deposit such funds in an interest-bearing account and such interest, when received by
City, shall become part of the Deposit.
City is authorized to use the Deposit to pay its actual, reasonable out-of-pocket
expenses incurred in carrying out its obligations under this Agreement, including the
costs of City's economic/financial coasultant and special legal counsel fees and costs
incurred by City in connection with the negotiation, drafting and consideration ofthe
proposed LDDA for approval (collectively, "City Expenses"), but specifically excluding
the cost of City stafftime, including City Attorney work, which shall be bome by City.
The City anticipates incurring expenses rslated to its obligations under this Agreement,
including for pro forma review and analysis and for special counsel legal services to be
performed by Burke Williams & Sorensen LLP in connection with the negotiation and
drafting ofthe proposed LDDA and ground lease ("Anticipated City Expenses"). On a
periodic basis and upon request from Developer, City shall transmit to Developer a copy
of a statement detailing the City Expenses incurred for the applicable period. City shall
be free to withdraw funds from the Deposit provided it has submitted such a statement to
Developer and the statement is solely for City Expenses. City's legal and advisory
services shall be redacted as necessary to preserve attomey-client privilege. Anticipated
City Expenses do not include the costs ofprocessing Project entitlement applications or
preparing an appropriate CEQA document for the Project; all such costs sha1l be bome by
Developer and paid pursuant to one or more separate reimbursement agreements to be
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entered into htween City and Developer. The parties acknowledge and agree that if and
when City Expenses reach $30,000, the parties will work together to set a budget and
identi! anticipated future City Expenses.
If, notwithstanding City's and Developer's mutual diligent, good faith
negotiations, the parties have not entered into a LDDA on or before expiration ofthe
Negotiation Period or any extension thereof, City shall retum to Developer the
unexpended portion of the Deposit, if any. If City and Developer complete a LDDA
within the time provided by this agreement or as extended, any unused portion of the
Deposit (deducting incurred but not billed expenses) shall be retumed to Developer or
credited to payments owed by Developer to City, at the Developer's discretion.
1.4 Preliminary Business Terms. To memorialize ne gotiations between City
and Developer undertaken to date, and to facilitate the orderly preparation, drafting and
negotiation ofan LDDA, and not as a limitation on either Party to raise issues of concem
for discussion and negotiation during the Negotiation Period, City and Developer have
prepared a list of preliminary business terms ("Preliminary Business Terms") setting
forth non-binding business terms to be further developed and negotiated as part ofthe
proposed LDDA. Major points of the Preliminary Business Terms are outlined and
attached hereto as Exhibit C. Nothing herein shall preclude either Party at any time
during the Negotiation Period from expanding upon one or more of the general terms in
the Preliminary Business Terms, or adding additional terms for negotiation and possible
inclusion in a proposed LDDA. However, with respect to those business terms set forth in
the Preliminary Business Terms, the Parties agree that the negotiations hereunder shall be
conducted in a manner that is substantially consistent with such Preliminary Business
Terms.
2. Development Concent. The negotiations hereunder shall be based on the
Developer's proposed development concept that includes the concurrent development of:
an approximately 80,000 square foot golf recreation center with three decks and
approximately 120 bays, restaurant and bar, entertainment areas, outdoor patio and
parking facilities (collectively, the "Project"). The description ofthe Project is
preliminary and subject to further design revisions during the entitlement process.
3. Developer 's Responsibilities.
3.1 Full Disclosure. Developer is required to make full disclosure to City of
its principals; officers; major stockholders, partners or members; joint venturers; and its
directly involved negoliators, development managers, consultants and managerial
employees (collectively, "Developer Parties"). Developer shall notifu the City Manager
of any material change in the structure of Developer. Developer shall make and maintain
full disclosure to City of its proposed methods of financing to be used in the ground lease
ofthe Site and development ofthe Project. Final approval offinancing will be addressed
in the LDDA.
3.2 Schedule of Performance: Prosress Reports. Devel oper shall commence
and use commercially reasonable efforts to complete performance of the work described
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in the Schedule of Performance within the times set forth therein. Upon request by the
City, Developer will update the city as to the status ofall work to be undertaken by or on
behalfof Developer as described in the Schedule of Performance as provided herein.
Within ten (10) days following City's request, which may be made from time to time
during the Negotiation Period, Developer shall submit to City a written progress report
advising City on the status ofall work being undertaken by or on behalf of Developer.
4. Citv's Responsibilities. Ci ty shall cooperate with Developer by providing
information regarding the development potential of the Site that is requested by
Developer and by responding to inquiries from and/or attending meetings with Developer
Parties regarding the development potential ofthe Site and/or regarding the Project in a
method and marurer consistent wilh then current City practices.
5. Access to Site. Developer's due diligence inspection ofthe Site is already
underway. City and Developer will continue to cooperate to enable representatives of
Developer to obtain the right ofaccess to all portions of the Site for the purpose of
obtaining data and making surveys and tests necessary to evaluate the development
potential ofthe Site, including the investigation ofthe soils and environmental condition
ofthe Site. All costs ofinvestigating the physical and environmental condition ofthe
Site, including a Phase 1, Phase 2, geotechnical and soils investigations, and biological
survey ifelected by Developer, shall be paid by Developer at its expense and shall not be
considered part of City Expenses. Developer agrees to notiry City in writing at least two
(2) business days prior to undertaking any studies or work upon the Site; however ,in the
event ofa conflict between this agreement and any then-current site access/right of entry
agreement, the site access/right of entry agreement shall control. Any preliminary work
by Developer shall be undertaken only after securing (1) such insurance as may be
reasonably required by City in the Access and Subsurface Boring Agreemenl between the
parties dated December 26,2017 to protect City and Developer from damages and losses
that may arise from such investigative work, and (2) any and all necessary permits from
the appropriate govemmental agencies. Such work shall be done without unduly
disturbing existing occupants ofthe Site, if any. In the event that Developer causes any
damage to any portion of the Site or any adjacent properties or the existing improvements
thereon, including the engineered land fill cap, Developer, at its expense, shall promptly
restore the Site, adjacent properties and existing improvements thereon as nearly as
possible to the physical condition existing immediately prior to Developer's entry onto
the Site. Developer's obligations under this Section 5 shall survive the expiration or
termination of this Agreement.
6.Defaults and Remedies.
6.1 Default. Failure by either party to comply with the terms and provisions
provided in this Agreement shall constitute an event of default hereunder. Except as
otherwise set forth in Section 7 below with respect to City's immediate right to terminate,
the non-defaulting party shall give written notice ofdefault 1o the defaulting party,
specifying the nature ofthe default and the required action to cure the default. If such
default remains uncured ten ( 10) business days after receipt by the defaulting party of
such notice, the non-defaulting party may exercise the remedies set forth in Section 6.2 or
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6.3 below, as applicable, unless additional time is needed to remedy the default, in which
event the defaulting party shall commence the cure ofthe default within the ten (10) day
period and thereafter diligently pursue the cure to completion with additional time up to
but not in excess of sixty (60) days.
6.2 Exclusive Remedies for CiW Default. In the event of an uncured default
by City, Developer's sole and exclusive remedy shall be to terminate this Agreement,
upon which termination Developer shall be entitled to retum of the remaining
unexpended and uncommitted balance ofthe Deposit, ifany.
6.4 Limitation on Damaees. Except as otherwise provided in Section 6.3
above, neither parry shall have any liability to the other for actual damages for any
default. Each party specifically waives and releases any rights or claims it may otherwise
have at law or in equity to recover consequential, special or ptmitive damages from the
defaulting party.
7. Lobbyine and Campaisn Conribution Prohibition. Deve loper agrees and
acknowledges that the LDDA negotiations shall take place with the City Manager, the
City's legal, financial and planning advisers, and such other City parties as may be
designated by the City Manager from time to time (collectively, the "City-Designated
Team"). Developer shall not engage in discussions, negotiations or lobbying of any City
Council or Planning Commission members or other City employees or o{ficials as may
be designated by the City Manager from time to time (collectively, "Excluded City
Parties") regarding the terms of a potential LDDA, unless requested to do so by the
City-Designated Team for specific purposes related to the negotiations. Further,
Developer shall not make any conlributions to the political campaigrrs of any City
Council or Planning Commission members. Nothing in this Section 7 shall prevent: (l)
providing information about Topgolfs potential operations, rcsponses to requests for
information from one or more Excluded City Parties, provided such responses are
directed to the City-Designated Team; (2) Developer's participation in any question-and-
answer sessions, workshops, or tours approved in writing by the City-Designated Team;
or (3) Developer's participation in public events or community fora at which one or more
Excluded City Parties are present, provided Developer does not engage in
communications with such Excluded City Parties at such events that are intended to
influence the LDDA negotiations. ln the event ofDeveloper's violation of its obligations
under this Section 7, City may immediately terminate this Agreement by written notice to
Developer without affording Developer any opportunity to cure such violation.
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6.3 Exclusive Remedies for Developer Default. In the event ofan uncured
default by Developer, City's sole and exclusive remedies shall be: (1) to seek specific
performance or other equitable relief (which shall not include requiring Developer to
enter into the LDDA or Ground Lease) and/or to recover actual damages ifthe default is
a result ofDeveloper's failure to meet its indemnity obligations set forth herein, or (2) for
any other Developer default, to terminate this Agreement and retain that portion ofthe
Deposit needed to pay City Costs incurred prior to the date of such termination. In the
event ofa Developer default, Developer shall have the continuing obligation to restore
the Site to its prior condition as described in Section 5.
8. Rishts Followins Expi ration or Termination. Follo wing expiration or lermination
ofthis Agreement, neither party shall have any further right against or liability to the
other under this Agreement except as otherwise provided herein. Following expiration or
termination of this Agreement, unless a LDDA is signed by Developer, approved by the
City Council, and executed by City, City shall have the absolute right to pursue
disposition and development of the Site in any manner and with any party or parties it
deems appropriate.
9. Confidentiality of Information. Any information provided by Developer to City,
including pro formas and other financial projections (whether in written, graphic,
electronic or any other form) that is clearly marked as "CONFIDENTIAL /
PROPRIETARY INFORMATION" ("Confidential Information") shall be subject to
the provisions of this Section 9. Subject to the terms of this Section, City shall use good
faith diligent efforts to prevent disclosue of the Confidential Information to any third
parties, except as may be required by the Califomia Public Records Act (Govemment
Code Section 6253 et seq.) or other applicable local, state or federal disclosure law
(collectively. "Public Disclosure Laws"). Notwithstanding the preceding sentence, City
may disclose Confidential lnformation to its officials, employees, agents, attomeys and
advisors, but only to the extent necessary to carry out the purpose for which the
Confidential Information was disclosed. Developer acknowledges that City has not made
any representations or warranties that any Confidential lnformation City receives from
Developer will be exempt from disclosure under any Public Disclosure Laws. In the
event the City Attomey determines that the release of the Confidential Information is
required by Public Disclosure Laws, or order ofa court of competent jurisdiction, City
shall notifu Developer of City's intention to release the Confidential lnformation at its
earliest reasonable opportunity. If the City Attomey, in her discretion, determines that
only a portion ofthe rcquested Confidential lnformation is exempt from disclosure under
the Public Disclosure Laws, City may, with notification to Developer, redact, delete or
otherwise segregate the Confidential Information that will not be released from the non-
exempt portion to be released.
Developer acknowledges that in connection with City Council's consideration of
any LDDA as contemplated by this Agreement, City will need to present a summary of
Developer's financial projections, including anticipated costs ofdevelopment, anticipated
Project revenues, and rctums on cost and investment. To the extent possible, the parties
will use good faith efforts to keep such information confrdential and non-public. Ifthis
Agreement is terminated without the execution of a LDDA, City shall return to
Developer any Confi dential lnformation.
Ifany litigation is filed seeking to make public any Confidential Information, City
and Developer may mutually agree in writing to defend the litigation, and if the parties
agree to defend the suit, Developer shall pay City's reasonable costs of defending such
litigation and shall indemnifu City against all costs and attorneys' fees awarded to the
plaintiff in any such litigation. Altematively, Developer may elect to disclose the
Confidential Information rather than defend the litigation. Developer's indemnity
obligations under this Section 9 shall survive the expiration or termination of this
Agreement.
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The restrictions set forth herein shall not apply to Confidential Information to the
extent such Confidential Information: ( I ) is now, or hereafter becomes, through no act or
failure to act on the part of City, generally known or available to the public; (2) is known
by the City at the time ofreceiving such information as evidenced by City's public
records; (3) is hereafter fumished to City by a third party, as a matter of right and without
restriction on disclosure; (4) is independently developed by City without any breach of
this Agreement and without any use ofor access to Developer's Confidential lnformation
as evidenced by City's records; (5) is not clearly marked
CONFIDENTIAL/PROPRIETARY INFORMATION" as provided above (except where
Developer notifies City in writing, prior to any disclosure of the Confidential
Information, that omission of the "CONFIDENTIAL/PROPRIETARY
INFORMATION" mark was inadvertent), or (6) is the subject of a written permission to
disclose provided by Developer to City.
10. Real Estate Co mmlsslons . City shall not be liable for any real estate commission
or brokerage fees which may arise from the grormd lease or other acquisition ofthe Site
or any portion thereof or interest therein. Developer represents and warrants to City that
it has not engaged any broker, agent or finder in connection with the ground leasing or
development ofthe Site other than The Retail Connection, and Developer agrees to
indemniff, defend and hold City harmless from any claim by any broker, agent or finder
retained by, or alleged to have been retained by, Developer. Developer's indemnity
obligations under this Section l0 shall survive the expiration or termination of this
Agreement.
I 1. Notices. Any approval, disapproval, demand or other notice which either party
may desire to give to the other party under this Agreement must be in writing and may be
given by any commercially acceptable means, including first class mail, personal
delivery, or ovemight courier, to the party to whom the notice is directed at the address of
the party as set forth below, or at any other address as that party may later designate by
notice.
To City:City of Burlingame
501 Primrose Road
Burlingame, C A 9 4010 -3997
Attention: City Manager
Telephone (650) 558-7200
with a copy to:City of Burlingame
501 Primrose Road
Burlingame, C A 9 4010 -3997
Attention: City Attomey
Telephone (650) 558-7200
Topgolf USA Burlingame, LLC
8750 N. Central Expressway, Suite 1200
Dallas, TX 75231
Attention: Elizabeth Bonesio, Esq.
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To Developer:
Telephone (21 4) 37 7 -0622
with a copy to:Miriam Montesinos, Esq.
Any notice shall be deemed received on the date ofdelivery ifdelivered by
personal service, three (3) business days after mailing ifsent by first class mail, and on
the date ofdelivery or refused delivery as shown by the records ofthe ovemight courier if
sent via overnight courier.
12. Limitations of this Asreement. This Agreement (and any extension of the
Negotiating Period) shall not obligate either City or Developer to enter inlo a LDDA on
or containing any particular terms. By execution of this Agreement (and any extension of
the Negotiating Period), City is not committing itself to, or agreeing to, undertake
disposition ofthe Site or any portion thereof or interest therein and Developer is not
committing itselfto lease the Site or any portion thereof or interest therein. Execution of
this Agreement by City and Developer is merely an agreement to conduct a period of
exclusive negotiations in accordance with the terms hereof, reserving for subsequent City
action the final discretion and approval regarding the execution ofa LDDA and all
proceedings and decisions in connection therewith. Any LDDA resulting from
negotiations pursuant to this Agreement shall become effective only if and after such
LDDA has been considered and approved by the City Council, following conduct ofall
legally required procedures, and executed by duly authorized representatives of City and
Developer. Until and unless a LDDA is signed by Developer, approved by the City
Council, and executed by City, no agreement drafts, actions, deliverables or
communications arising from the performance of this Agreement shall impose any legally
binding obligation on either party to enter into or support entering into a LDDA or be
used as evidence ofany oral or implied agreement by either party to enter into any other
legally binding agreement. This Agreement, which pertains only to negotiating
procedures and standards between City and Developer, does not limit in any way the
discretion of City in acting on any applications for permits or approvals for the proposed
Project. The parties understand that the City has the complete and unfettered discretion
ty approve or deny the Project. The parties acknowledge that Califomia Environmental
Quality Act ("CEQA") compliance will be required in connection with consideration of
such permits and approvals, and that City shall retain the discretion in accordance with
CEQA and other applicable law before action on any such permits or approvals to (1)
identifu and impose mitigation measures to mitigate significant environmental impacts,
(2) select other feasible altematives to avoid significant environmental impacts, (3)
balance the benefits ofthe proposed Project against any significant environmental
impacts prior to taking final action ifsuch significant impacts cannot otherwise be
avoided, or (4) determine not to proceed with the Project. Developer shall have the right
to take all ofthe above actions into consideration in determining whether to move
forward with the Project.
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13. Third Partv Reoorts. Upon the termination of this Agreement or in the event the
parties elect not to enter into an LDDA or Ground Lease, and upon request by the City,
Developer shall submit copies ofany third party geotechnical, environmental and/or
traffrc study report prepared by Developer and related to the Site, provided the City does
not then have a copy of such report in its possession.
14. lntesration. This Agreement contains the entire understanding between the
parties relating to the matters set forth herein. All prior or contemporaneous agreements,
understandings, representations and statements, oral or written, are merged in this
Agreement and shall be ofno firther force or effect.
15. Modifications. Any alteration, change or modification of or to this Agreement, in
order to become effective, shall be made in writing and in each instance signed on behalf
of each party.
16. Severabiliw. If any temr, provision, condition or covenant of this Agreement or
ir application to any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder ofthis Agreement, or the application ofthe term, provision,
condition or covenant to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected, and shall be valid and
enforceable to the fullest extent permitted by law.
17. Applicable Law: Venue. This Agreement shall be construed in accordance with
the law of the State of Califomia without reference to choice of laws principles, and
venue for any action under this Agreement shall be in San Mateo County, Califomia.
I 8 . No Assignment. The qualifications and identity of Developer and the Developer
Parties are ofparticular concem to City. It is because ofthose unique qualifications and
identity that City has entered into this Agreement with Developer. Accordingly, except
as provided below, Developer may not assign its right to negotiate with City to any other
person or entity. Any purported voluntary or involuntary assignment ofDeveloper's
negotiation rights shall be null and void. Notwithstanding the foregoing, City
acknowledges that Developer intends to form one or more single purpose limited liability
companies or limited partnerships, all owned and controlled by Developer (the "SP\r')
for the exclusive purpose of ground leasing and developing the Site. City further
acknowledges and agrees that ifa LDDA is approved by City, the SPV may enter into
such LDDA and ground lease the Site without any assignment of this Agreement by
Developer to the SPV; provided, however, that the foregoing shall not in any way limit
Developer's obligations hereunder or under the LDDA (ifany).
19. Waiver of Lis Pendens. It is expressly understood and agreed by the parties that
no lis pendens shall be filed against any portion of the Site with respect to this Agreement
or any dispute or act arising from this Agreement.
20. Counterparts. This A greement may be signed in multiple counterparts which,
when signed by both parties, shall constitute a binding agreement.
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21. Intemretation. As used in this Agreement, masculine, feminine or neuter gender
and the singular or plural number shall each be deemed to include the others where and
when the context so dictates. The word "including" shall be construed as if followed by
the words "without limitation." This Agreement shall be interpreted as though prepared
jointly by both parties. Titles and captions are for convenience of reference only and do
not define, describe or limit the scope or the intent of this Agreement or any of its terms.
22. Joint and Several. If Developer consists ofmore than one entity or person, the
obligations of Developer hereunder shall be joint and several.
23. Authoritv. If Developer is a corporation, limited liability company, partnership,
trust, association or other enlity, Developer and each person executing this Agreement on
behalf of Developer does hereby covenant and warrant that (1) Developer is duly
incorporated or otherwise established or formed and validly existing under the laws of its
state of incorporation, establishment or formation; (2) Developer has and is duly qualified
to do business in Califomia; (3) Developer has full corporate, partnership, trust,
association or other power and authority to enter into this Agreement and to perform all
ofDeveloper's obligations hereunder; and (4) each person (and all ofthe persons ifmore
than one signs) signing this Agteement on behalf of Developer is duly and validly
authorized to do so.
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IN WITNESS WIIEREOF, the parties hereto have executed this Agreement as of
the date set opposite their signatures. The Date of Agreement shall be the date this
Agreement is signed by City.
CITY:DEVELOPER:
CITY OF BURLINGAME, A
Califomia municipal
corporation
By:
Lisa Goldman, City
Manager
Date
2018
APPROVED AS TO FORM:
By:
Kathleen A. Kane,
City Attomey
TOPGOLF USA BURLINGAME, LLC, a Delaware
limited liability
com
Name
Title:
Date:2018
By:
ATTEST:
By:
Meaghan Hassel-
Shearer, City Clerk
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EXHIBIT A
DIAGRAM OF SITE
lConcentually ok with this but tables on left and references to "Exhibit D" should be
deletedl
a
NORTH
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Exhibit A
t'
.'
t
Exhibit D
EXHIBIT B
SCHEDULE OF PERFORMANCE
I Effective
through
Date Developer to continue due diligence including
environmental investigation of the Site.
2 By day [TBD]Developer to prepare and submit to City a progress report
including updated pro forma identifoing all hard costs, soft
costs, financing costs and contingencies for the proposed
Proiect.
3 By day [TBD]Developer to provide City with copies of all due diligence
materials, including any Phase I or Phase 2 reports available
at that time.
By July 1,2018 City to provide initial draft of LDDA and Ground Lease to
Developer.
5 By day [TBD]Developer to prepare and submit to City conceptual
dmwings for the Project, which must include, at minimum,
a final dimensioned and detailed Site plan, parking and
circulation plan, elevations of all four sides of the proposed
Project, elevations of major public spaces and tabulation of
areas/uses. Such materials shall be considered
CONFIDENTLAL by the parties and shall not be included as
efibits to the LDDA other than an agreed upon Site Plan of
the Topgolf facility.
6 By day [TBD]Developer to execute LDDA for the Project in form
acceptable to City staff and City legal counsel and submit
said LDDA to the City Council for consideration and
approval.
Exhibit B
4.
EXHIBIT C
l. Term. Twenty (20) year primary term with four (4) options to extend at
five (5) years each.
2. Rent. Construction Period Rent (described in the mutually agreed Term
Sheet) will be due and payable commencing after Topgolfbreaks ground on for
City's conveyance ofa ground leasehold interest in the Site to Developer and
continuing until the earlier of completion of the Project or the end ofLease Year
2. Following completion of construction, fixed rent will commence as provided
below:
a. Lease Years 1 and 2 (or until Project is complete with occupancy permits,
whichever is earlier): $5000 per month.
b. Earlier of Lease Year 3 or completion ofProject - Lease Year 5: $1,500,000
per annum
c. Lease Years 6-10: $1,650,000 per annum
d. Lease Years l1-15: $1,850,000 per annum
e. Lease Years 16-20: $1,996,500 per annum
f. Rent will increase by l0% every 5 years thereafter for Option Periods
exercised by Tenant.
3. Community Benefit Fees. Devel oper will pay to City $500,000 in
community benefit funds as follows: (i) 250,000 within ten (10) business days
after receipt ofall permits and approvals, including building permits, and (ii)
$250,000 within ten (10) business days after opening of the Project to the public.
4. Commercial Linkage Fee. Developer will pay applicable commercial
linkage fees on total build out square footage (estimated at 65,000 square feet for
this project). These commercial linkage fees will then be set aside for affordable
housing. In the event that the one-time commercial linkage fee payable by
Developer exceeds $350,000, the amount ofthat overage may be deducted from
the second community benefit payment described above.
Exhibit C
PRELIMINARY BUSINESS TERMS