HomeMy WebLinkAboutCoast Waste Management; 1997-10-21;CONSENT TO SUBLEASE
WHEREAS, the COUNTY OF SAN DIEGO, hereinafter referred to as “County”, has leased
a portion of McClellan-Palomar Airport to the City of Car&bad, hereinafter referred to as “Lessee”,
by lease known as County Contract No.71987R entered into between County and the City of
Carlsbad on October 28, 1997 and hereinafter referred to as “Industrial Lease”; and
WHEREAS, Lessee desires to enter into the sublease attached hereto as Exhibit “A” with
Coast Waste Management, Inc. as sublessee; and
WHEREAS, said Industrial Lease provides that subleases shall not be effective until
consented to in writing by County.
NOW, THEREFORE, County does hereby consent to said sublease on this &?I& day
of October, 1997, with the stipulation that in the event there is any conflict between said sublease
and said Industrial Lease, the terms and conditions of said Industrial Lease shall prevail.
COUNTY OF SAN DIEGO
By <ti j.?b\/
Clerk, Board of Supervisors
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PALOMAR SOLID WASTE FACILITY SUBLEASE
OWNER/LESSOR: COUNTY OF SAN DIEGO, AIRPORTS DIVISION
LESSEE: CITY OF CARLSBAD
SUBLESSEE: COAST WASTE MANAGEMENT, INC.
PARCELS:
This Sublease Agreement (“Sublease”) is made and entered into effective as of
28’ oc 1997, concurrent with, and contingent upon, entry of that certain
Lease between {he County of San Diego Airports Division (“County Airports”) and the
City of Car&bad, a copy of which is attached hereto as Exhibit A. This Sublease is
between the City of Carlsbad (“Carlsbad”), a municipal corporation and Lessee of the
subject property from County Airports under the Lease attached as Exhibit A and Coast
Waste Management, Inc. (“Coast” or “Sublessee”), a California corporation engaged in
the solid waste business.
I. RECITALS.
A. Incident to the settlement of litigation between Coast, Carlsbad, and the
County of San Diego (“the County”), Carlsbad and County Airports are
entering into the Lease of the subject property attached hereto as Exhibit
A. It is the intent of the parties to this Sublease that Coast, under this
Sublease will assume and perform all of Carlsbad’s obligations under its
Lease with County Airports, including but not limited to, the obligations to
pay rent, to maintain and protect the property and to use the property only
as authorized by the County AirportsKarlsbad Lease.
B. Coast, Carlsbad, and the County each also has certain rights under that
certain Settlement Agreement, a copy of which Settlement Agreement is
attached hereto as Exhibit B. It is the intent of the parties that, pursuant
to this Sublease, Coast will perform all of Car&ad’s operational and site
related obligations under the Settlement Agreement during the term of
Coast’s Sublease.
C. The parties to this Sublease recognize and acknowledge that Coast is
currently the franchised solid waste collection provider for the City of
Carlsbad on a month-to-month basis. Nothing in this Sublease shall be
construed to alter that relationship or to extend the term thereof.
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II. SUBLEASE.
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A. - Premises.
The premises subleased to Coast under this Sublease are the same Property
and Premises which Carlsbad leases from County Airports under the Lease attached
hereto as Exhibit A. The premises (“Premises”) shall include any additional acreage
added to the Carlsbad Lease, and shall exclude any acreage deleted, during the term
of this Sublease.
B. Effective Date.
This Sublease shall become effective when all of the following have occurred:
1. The Settlement Agreement attached as Exhibit B is signed by all
the parties, approved by the Court, and entered as provided by
law. rhe Settlement Agreement was signed on August 11, 1997,
and this condition has been satisfied.]
2. County Airports and Carlsbad have executed the Lease attached
as Exhibit A and the same has become effective.
3. Coast has provided the appropriate bonds and proof of insurance
to Carlsbad and County Airports as provided below.
i=. Terms and Provisions.
The terms and provisions of the County AirportslCarlsbad Lease attached as
Exhibit A are incorporated herein by this reference as the terms, provisions, and
conditions upon which the Premises are subleased to Coast. In the event there is any
conflict between the terms, provisions, and conditions of the Lease between County
Airports and Carlsbad and the terms, provisions, and conditions of this Sublease, the
terms, provisions, and conditions of the Lease between County Airports and Carlsbad
shall control, provided that it is understood that the County AirpoMCarlsbad Lease
sets the minimum requirements and any additional requirements imposed by this
Sublease shall apply and shall not be deemed in conflict with the Lease.
D. Rent.
The rent to be paid by Coast is as set out in the County AirpoMCarlsbad Lease
and Settlement Agreement attached as Exhibits A and B, respectively. Coast shall pay
rent in a timely manner directly to County Airports, with a copy of rent payment
documentation to Carlsbad confirming that rent has in fact been paid. The rent to be
paid by Coast shall include, as may be authorized by the County AirporklCarlsbad
Lease and Settlement Agreement, respectively, any adjustments in the rent, late
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payment penalties, and any other Lease related charges (“extra rent” pursuant to
Section 1 .l 1 of the County AirporKarlsbad Lease) due from Carlsbad to the County. It
is expressly understood and agreed by the parties to this Sublease that in no event is
Carlsbad to bear any of the costs of rent or other Lease related charges. Rather, it is
Coast’s obligation to make all of these payments. If a security deposit is required by
County Airports under its Lease to Carlsbad, Coast shall make the required deposit.
E. Pavment of Tip Fee Reductions to Carlsbad Per Settlement
Aqreement.
In addition to rent, Coast shall transmit to Carlsbad the amount of reduced tip
fees called for by 111(C)(6) of the Settlement Agreement attached hereto as Exhibit “B.’
($2.50 per ton for all waste disposed of in County facilities above Carlsbad’s trash up to
a total of 800 tons per day, and $3.25 per ton on all waste disposed of in County
landfills between 800 and 1000 tons per day, minus Carlsbad’s trash, all as set forth in
more detail in the attached Settlement Agreement). Coast shall keep accurate records
in order to comply with the provisions of the Settlement Agreement attached as Exhibit
“B” and with the provisions of this Sublease, and Coast shall, within 15 days of the end
of each calendar month transmit to Carlsbad by check all amounts due pursuant to this
subparagraph, together with an accounting of how the amount was computed. Any
disputes concerning the manner, timeliness, or amount of such payments shall be
subject to the dispute resolution provisions of this Sublease and of the Settlement
Agreement.
F. Acceptance of Premises by Coast.
Coast accepts the Premises subject to any and all existing easements and
encumbrances. Coast further acknowledges that it has, in fact, been utilizing the site
for some number of years and that in entering into this Sublease it does so having fully
inspected the Premises to its satisfaction. In this regard, Coast accepts responsibility
for the cost of mitigating any existing or future hazardous or toxic materials cleanup that
may be required at the site by the County AirporKarlsbad Lease or as a result of
Coast’s presence at the site. Coast further certifies and warrants that in entering into
this Sublease it is not relying upon any representation as to the condition of the
property or the Premises by Carlsbad or County Airports. Coast further accepts and
acknowledges the obligations of the County AirportsKarlsbad Lease and of the
Settlement Agreement attached as Exhibits A and B, respectively, and that it has
reviewed the same to its satisfaction with its own independent attorneys and advisors,
fully understands the same, and undertakes to perform the obligations thereof as called
for by this Sublease in full without reservation.
G. Taxes, Assessments and Fees.
Carlsbad shall not be obligated to pay any taxes or assessments accruing
against Sublessee related to the Lease, the Sublease, or the Premises or any interest
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of Sublessee therein before, during or after the term, or any extension thereof. All such
payments shall be the sole responsibility of Sublessee. In addition, Sublessee shall be
solely responsible for payment of any taxes or asses,sments levied upon any
improvements, fixtures or personal property located on the Premises, to the extent that
such taxes or assessments result from the business or other activities of Sublessee
upon, or in connection with, the Premises.
H. IndemnitvlHold Harmless.
Coast shall indemnify, defend, and hold harmless the City of Carlsbad, County
Airports, and their officers, employees, and agents from and against any and all claims,
demands, liability, judgments, awards, fines, mechanics’ liens or other liens, losses,
damages, expenses, rents, charges or costs of any kind or character, including
attorneys’ fees and court costs (hereinafter collectively referred to as “claims”), arising
from or in connection with, or caused by, directly or indirectly (1) any breach or default
by Sublessee of its obligations under this Sublease; (2) any act, omission, or
negligence of Sublessee, active or passive, or of any sub-sub-tenant or sub-sub-lessee
and/or their respective contractors, subcontractors, licensees, invitees, agents,
servants, or employees; (3) any use of the Premises, or any accident, injury, death or
damage to any person or property occurring in, on or about the Premises or any part
thereof, or any service delivery facilities, or any other portions of the Premises used by
Sublessee; and (4) any labor dispute involving Sublessee, its employees, contractors,
subcontractors, or agents, including without limitation, claims caused by the concurrent
negligent act or omission, whether active or passive, of Carlsbad or its officers, agents,
and/or employees; provided, however, that Sublessee shall have no obligation to
defend or indemnify Carlsbad or County Airports or their officers, agents, and
employees from claims caused by the negligent, willful or criminal act of Carlsbad or
County Airports or their officers, agents, and employees.
The foregoing shall include the obligation on the part of Sublessee and its
successors, assigns, and guarantors, if any, jointly and severally, to protect, indemnify,
defend (with counsel of Carlsbad’s choosing as to claims against Carlsbad and County
Airports’ choosing as to claims against County Airports), reimburse and hold Carlsbad
and County Airports and their officers, agents, and employees harmless from any
claims, judgments, damages, penalties, fines, costs or expenses, known or unknown,
contingent or otherwise, liabilities (including sums paid in settlement of claims),
personal injury (including wrongful death), property damage (real or personal), or loss
including attorneys’ fees, consultants fees, and experts fees (consultants and experts
to be selected by Carlsbad) which arise during or after the term of this Sublease from
or in connection with the presence or suspected presence of hazardous or toxic
materials as defined by applicable federal, state, and/or local law as a result of acts, by
Sublessee, its contractors, employees, customers, and/or agents anywhere in or on the
Premises, including the soil, groundwater, or soil vapor on or under the property,
unless the hazardous or toxic materials are present as the result of the gross
negligence or willful misconduct of Carlsbad, its officers, agents or employees. Without
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limiting the generality of-the foregoing, the indemnification provided by this section
shall specifically cover costs incurred in connection with investigation of site conditions
for any cleanup, remediation, removal or restoration work required by any hazardous or
toxic materials laws because of the presence of hazardous materials in the soil,
groundwater or soil vapor on the Premises resulting from the release or discharge of
hazardous materials by Sublessee during the course of Sublessee’s alteration or
improvement of the Premises, unless the hazardous materials are present as a result
of the gross negligence or willful misconduct of Carlsbad or County Airports or their
officers, agents, or employees.
In the event that Carlsbad shall exercise any of its rights under this Sublease to
enter the Premises and/or the Property or to authorize others to do so, Sublessee and
their officers, employees, and agents shall not be liable for, and Carlsbad shall defend,
indemnify, protect and hold said parties harmless from any and all claims, demands,
liability, judgments, awards, fines, mechanics’ liens or other liens, losses, damages,
expenses, charges or costs of any kind or character, including actual attorneys’ fees
and court costs (collectively referred to as “claims”), arising from or in connection with,
or caused by, directly or indirectly, any such entry by Carlsbad or its agents resulting in
any accident, injury, death or damage to any person or property occurring in, on, or
about the Premises or any part thereof, or any service delivery facilities or any other
portions of the Property.
I. Insurance.
Without limiting Sublessee’s indemnification obligations to Carlsbad and County
Airports as set out above, Sublessee shall provide and maintain, during the term of the
Sublease and for such other period as may be required herein, including any holdover
period, whether authorized or unauthorized, insurance in the amounts and forms
specified in Exhibit E to the County AirportKarlsbad Lease which shall name
Carlsbad, the members of its City Council;and its officers, agents, employees and
volunteers, individually and collectively, as additional insureds. Coast shall provide
Carlsbad with the appropriate certificates of insurance confirming Carlsbad’s status as
an additional insured in the form and manner as called for by paragraph E of Exhibit E
to the County AirporKarlsbad Lease. Coast expressly acknowledges and agrees that
the rights, remedies, and benefits running in favor of County Airports under Exhibit E to
the County AirportICarlsbad Lease with respect to insurance requirements also run to
the benefit of Carlsbad as sublessor, and are enforceable directly by Carlsbad.
J. Inspection.
Carlsbad and its designated agent or agents, and County Airports and its
designated agent or agents representing the landowner, shall have the right at any time
and from time to time, on reasonable notice to Sublessee (except in”the event of an
emergency in which case no notice shall be required) to inspect the Premises to
determine whether Sublessee is complying with Sublessee’s obligations set forth in this
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Sublease, and to perform environmental inspections and samplings during regular
business hours (except in the event of an emergency) or during such other hours as
Carlsbad and/or County Airports and Sublessee may agree. If Sublessee is not in
compliance with its obligations in any respect, upon demand for correction and failure
to cure in a reasonable time on the part of Sublessee, Carlsbad and/or County Airports
shall have the right, in addition to Carlsbad’s and County Airports’ other remedies
available at law and in equity, or under the Settlement Agreement, to enter upon the
Premises immediately and, at Sublessee’s expense, take such action as Carlsbad
and/or County Airports in their sole judgment deems appropriate to remediate any
actual or threatened violation caused by Sublessee and/or to protect Carlsbad’s
interest in ensuring that its lease with County Airports is not violated. Carlsbad and
County Airports will use reasonable efforts to minimize interference with Sublessee’s
use of the Premises but will not be liable for any interference caused by Carlsbad’s or
County Airports’ entry and remediation efforts.
K. Operations Aqreement.
In conformance with section IV(G)(3) of the Settlement Agreement attached
hereto as Exhibit “B,” the Operating Agreement attached hereto and incorporated
herein by this reference as Exhibit “C” shall govern day to day operations at the
Facility. The Operations Agreement may be revised from time to time by an agreement
in writing signed by the Carlsbad City Manager and an authorized representative of
Coast without the need for a formal amendment of this Sublease. Carlsbad shall, at all
times, keep in its official files an up-to-date version of this Sublease together with an
up-to-date version of the Operations Agreement.
L. Assiqnment: Consent Required.
Sublessee shall not voluntarily or involuntarily assign, sublease, mortgage,
encumber, or otherwise transfer all or any portion of the Premises or its interest in this
Sublease without Carlsbad’s and County Airport’s prior written consent. Carlsbad shall
consider any requested assignment in conformance with the terms of the Settlement
Agreement. Carlsbad’s consent shall not be unreasonably withheld. County Airports
shall consider any request for assignment in conformance with the terms of the Lease
between County Airports and Carlsbad. Any attempted assignment or transfer on the
part of Sublessee without Carlsbad’s and County Airports’ prior written consent shall be
void and shall constitute a breach of this Sublease. Carlsbad’s and County Airports’
consent to any assignment or Sublease will not be effective until a document in writing
is signed memorializing Carlsbad’s and County Airports’ approval and the assignee or
sub-sub-lessee has assumed all of the obligations of Sublessee and has agreed to
perform all of Sublessee’s obligations.
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M. Events of Default. _
The occurrence of any of the following shall constitute a default by Sublessee
and a breach of this Sublease:
1. Failure on the part of Sublessee to perform any material aspect of
this Sublease, including Exhibits A and B referred to in this
Sublease.
2. Failing or refusing to pay any rent or other monetary obligation in a
timely manner.
3. Maintaining, committing, or permitting on the Premises waste, a
nuisance, or use of the Premises for an unlawful purpose, or
assigning or subletting this Sublease in a manner contrary to the
provisions of this Sublease.
4. Failure to remediate or otherwise take corrective action as to any
matter upon the demand of Carlsbad.
N. Carlsbad’s Riaht arid Remedies.
Should Sublessee fail to perform its obligations under this Sublease, Carlsbad
may exercise any of the following rights:
I. The right of Carlsbad to terminate this Sublease and Sublessee’s
right to possession of the Premises and to reenter the Premises,
take possession thereof and remove all persons therefrom,
following which Sublessee shall have no further claim thereon or
hereunder.
2. The right of Carlsbad without terminating this Sublease and
Sublessee’s right to possession of the Premises, to reenter the
Premises and occupy the whole or any part thereof for and on
account of Sublessee and to collect any unpaid rents and other
charges which have become payable, or which thereafter become
payable.
3. The right of Carlsbad, even though it may have reentered the
Premises, to elect thereafter to terminate this Sublease and
Sublessee’s right to possession of the Premises. Should Carlsbad
re-enter the Premises, Carlsbad shall not be deemed to have
terminated this Sublease and the liability of Sublessee to pay rent
and other charges thereafter accruing, and Sublessee’s liability for
damages under any of the provisions of this Sublease shall
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continue unless and until Carlsbad shall have notified Sublessee in
writing that it has so elected to terminate this Sublease and
Sublessee’s right to possession.
4. Its rights under its Lease with County Airports.
The rights and remedies of Carlsbad set forth in this Paragraph (N) are in
addition to the rights of County Airports under the Lease between County Airports and
Carlsbad.
0. Defaults by Carlsbad.
If Carlsbad shall neglect or fail to perform or observe any of the terms,
covenants, or conditions contained in this Sublease and/or in Exhibits A and B attached
hereto to be performed on the part of Carlsbad and which are necessary in order to
enable Coast to perform its obligations, upon notice thereof, in writing, from Coast to
Carlsbad , Carlsbad shall within a reasonable time cure any such failure of
performance on its part. In the event that Carlsbad fails or refuses to cure any such
failure of performance on its part, such failure shall be deemed a material breach of this
Sublease entitling Coast to the remedies provided at law and in equity, including but
not limited to, the right to terminate the Sublease and cease paying rent.
P. Notices.
Notices under this Sublease may be delivered, in writing, by mail or personal
delivery to the following parties at the following addresses:
City Manager
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Coast Waste Management, Inc.
C/O
County of San Diego
Airports Division
1960 Joe Crosson Drive
El Cajon, CA 92020
-Any party may, by written notice, delivered pursuant to this provision, at any time
designate a different address and contact person to whom notices shall be sent.
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Q. Waiver of Relocation Assistance- Benefits.
Sublessee understands and acknowledges that Carlsbad has a right of first
refusal to acquire the property under Exhibits A and B attached hereto, and that
Carlsbad may, in the future, (but not during the term of the County AirporXarlsbad
Lease) undertake by eminent domain to acquire title to the property. By entering into
this Sublease and becoming a subtenant of Carlsbad, Sublessee may become entitled
to receipt of “relocation assistance benefits” pursuant to the Federal Uniform
Relocation Assistance Act and/or the California Relocation Assistance Law, should
Carlsbad at some time make use of the Premises in such a way as to “displace”
Sublessee from the Premises. In consideration of Carlsbad’s agreement to enter into
this Sublease, Sublessee hereby waives any and all rights it may now have, or may
hereafter obtain, to relocation assistance benefits under federal, state, or local law
arising out of Carlsbad’s assertion or exercise of its rights under this Sublease and/or
its right to pursue eminent domain, and Sublessee releases Carlsbad and County
Airports from any liability for payment of such relocation benefits, provided, however,
that Sublessee does not waive its rights to relocation benefits as to any entity other
than Carlsbad and County Airports.
R. lnteqration of Sublease with CountvKarlsbad Lease and Settlement
Aqreement.
The terms, conditions, and provisions of this Sublease shall be integrated with
the County AirporWCarlsbad Lease (Exhibit A) and the Settlement Agreement (Exhibit
B). The fact that some provisions, but not all, of the CountylCarlsbad Lease (Exhibit A)
and/or of the Settlement Agreement (Exhibit B) may be restated in this Sublease does
not diminish the validity or importance of any of the other provisions. The provisions of
Exhibits A and B set the minimum requirements as supplemented by any additional
provisions in this Sublease. Under all circumstances Coast shall, at minimum, be
obligated to perform all of Carlsbad’s obligations to the County under Exhibit A.
S. Expansion.
The Premises shall be expanded, if at all, in conformance with the terms and
provisions of Exhibits A and B. In the event of expansion, Carlsbad and Sublessee
agree to amend this Sublease as appropriate to incorporate any such expansion. No
expansion of the Premises on the part of Sublessee shall occur except with the prior
express written consent of Carlsbad and County Airports in a manner consistent with
Exhibits A and B.
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III. GENERAL PROVISIONS.
A. Authority.
Sublessee represents and warrants that it has full power and authority to
execute and fully perform its obligations under this Sublease pursuant to its governing
instruments, without the need for any further action, and that the person(s) executing
this Sublease on behalf of Sublessee is(are) the duly designated agent(s) of Sublessee
and is(are) authorized to do so.
B. Brokers.
Sublessee warrants that it has had no dealings with any real estate broker or
agent in connection with the negotiation and/or execution of this Sublease. In the
event any broker other than the brokers acknowledged in writing by Carlsbad make
claim for monies owed, Sublessee shall indemnify, defend and hold Carlsbad and
County Airports harmless therefrom.
C. Captions.
The captions, headings and index appearing in this Sublease are inserted for
convenience only and in no way define, limit, construe, or describe the scope of intent
of the provisions of this Sublease.
D. Carisbad Approval.
Except where stated herein to the contrary, the phrases “Carlsbad’s approval,”
and “Carlsbad’s written approval” or such similar phrases shall mean approval of
Carlsbad’s City Manager or said Manager’s designee as authorized by said Manager in
writing.
E. Alleqation of Breach: Notice: Riqht to Cure
Any dispute or allegation of breach of this Sublease shall be handled in
conformance with the dispute resolution and breach provisions of the Settlement
Agreement and the County Airportslcarlsbad Lease.
F. Cumulative Remedies.
In the event of a default under this Sublease, each party’s remedies shall be
limited to those remedies set forth in this Sublease; any such remedies are cumulative
and not exclusive of any other remedies under this Sublease to which the non-
defaulting party may be entitled.
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G. Entire Aqreement.
This Sublease, together with all addenda, exhibits and riders attached hereto,
constitutes the entire agreement between the parties with respect to the subject matter
hereof, and all prior or contemporaneous agreements, understandings and
representations, oral or written, are superseded.
H. Estoppel Certificate.
Sublessee shall at any time during the term of this Sublease, within five (5)
business days of written notice from Carlsbad, execute and deliver to Carlsbad a
statement in writing certifying that this Sublease is unmodified and in full force and
effect or, if modified, stating the nature of such modification. Sublessee’s statement
shall include other details requested by Carlsbad, such as the date to which rent and
other charges are paid, Sublessee’s knowledge concerning any outstanding defaults
with respect to Carlsbad’s obligations under this Sublease and the nature of such
defaults if they are claims. Any such statement may be relied upon conclusively by any
prospective purchaser or encumbrancer of the Premises. Sublessee’s failure to deliver
such statements within such time shall be conclusive upon Sublessee that this
Sublease is in full force and effect, except to the extent any modification has been
represented by County, and that there are no uncured defaults in Carlsbad’s
performance, and that not more than one month’s rent has been paid in advance.
Exhibits.
All exhibits referred to herein are attached hereto and incorporated by reference.
J. Force Maieure.
In the event either party is prevented or delayed from performing any act or
discharging any obligation hereunder, except for the payment of rent by Sublessee,
because of any and all causes beyond either party’s reasonable control, including
unusual delays in deliveries, abnormal adverse weather conditions, unavoidable
casualties, strikes, labor disputes, inability to obtain labor, materials or equipment, acts
of God, governmental restrictions, regulations or controls, any hostile government
actions, civil commotion and fire or other casualty, legal actions attacking the validity of
this Sublease or Carlsbad’s occupancy of the Premises, or any other casualties beyond
the reasonable control of either party except casualties resulting from Lessee’s
negligent operation or maintenance of the Premises or the Property (“Force Majeure”),
performance of such act shall be excused for the period of such delay, and the period
for performance of such act shall be extended for a period equivalent to the period of
such delay. b Force Majeure shall not include any bankruptcy, insolvency, or other
financial inability on the part of either party hereto.
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K. Governina Law.
This Sublease shall be governed, construed and enforced in accordance with
the laws of the State of California.
L. Interpretation.
The parties have each agreed to the use of the particular language of the
provisions of this Sublease, and any question of doubtful interpretation shall not be
resolved by any rule of interpretation providing for interpretation against the parties
who cause an uncertainty to exist or against the draftsperson.
M. Joint and Several Liabilitv.
If more than one person or entity executes this Sublease as Sublessee, each of
them is jointly and severally liable for all of the obligations, of Sublessee hereunder.
N. Sublessee’s Lease Administration.
Sublessee confirms that Sublessee’s Lease Administrator has been given full
operational responsibility for compliance with the terms of this Sublease. Sublessee
shall provide Carlsbad with a written schedule of its normal hours of business operation
on the Premises, and Sublessee’s Sublease Administrator or a representative
designated thereby shall be (i) available to Carlsbad on a twenty-four (24) hour a day,
seven (7) day a week, basis, and (ii) present on the Premises during Sublessee’s
normal business hours, to resolve problems or answer questions pertaining to this
Sublease and Sublessee’s operations on the Premises.
0. Modification.
The provisions of this Sublease may not be modified, except by a written
instrument signed by both parties and approved in writing by County Airports.
P. Partial Invaliditv.
If any provision of this Sublease is determined by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Sublease shall not be
affected thereby. Each provision shall be valid and enforceable to the fullest extent
permitted by law.
Q. Pavments.
Except as may otherwise be expressly stated, each payment required to be
made by Sublessee shall be in addition to and not in substitution for other payments to
be made by Sublessee. ;
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R. Successors & Assiqns.
This Sublease shall be binding on and inure to the benefit of the parties and
their successors and assigns, all of whom shall be jointly and severally liable
hereunder, except as may otherwise be provided herein.
S. Time of Essence.
Time is of the essence of each and every provision of this Sublease.
T. Waiver.
No provision of this Sublease or the breach thereof shall be deemed waived,
except by written consent of the party against whom the waiver is claimed. The waiver
by Carlsbad of any breach of any term, covenant or condition contained in this
Sublease shall not be deemed to be a waiver of such term, covenant or condition of
any subsequent breach thereof, or of any other term, covenant or condition contained
in this Sublease. Carlsbad’s, or County Airports’, subsequent acceptance of partial
rent or performance by Sublessee shall not be deemed to be an accord and satisfaction
or a waiver of any preceding breach by Sublessee of any term, covenant or condition of
this Sublease by reason of such breach, regardless of Carlsbad’s or County Airports’
knowledge of such preceding breach at the time of Carlsbad’s or County Airports’
acceptance. The failure on the part of Carlsbad to require exact or full and complete
compliance with any of the covenants, conditions of agreements of this Sublease shall
not be construed as in any manner changing or waiving the terms of this Sublease or
as estopping Carlsbad from enforcing in full the provisions hereof. No custom or
practice which may arise or grow up between the parties hereto in the course of
administering this Sublease shall be construed to waive, estop or in any way lessen the
right of Carlsbad to insist upon the full performance of, or compliance with, any term,
covenant or condition hereof by Sublessee, or construed to inhibit or prevent the rights
of Carlsbad to exercise its rights with respect to any default, dereliction or breach of
this Sublease by Sublessee.
IN WITNESS WHEREOF, Carlsbad and Sublessee have duly executed this
Sublease as of the day and year first above written.
SUBLESSOR:
Dated:
Draft 5 - CoastKarisbad Sublease
CITCAD7.324 Revised Dctober 9.1997 13 -- - -- -. -. -_ --
h 1 -
. =
SUBLESSEE: I /
Dated: f”/h/i?F COAST WASTE MANAGEMENT, INC. .
APPROVED AS TO FORM:
Dated: h/ 7 /??
Dated: I 0 1 I7 I‘?7
WORDEN, WILLIAMS, RICHMOND & ELLIS
A Professiona_l Corporation
Couns& for City of Carlsbad
- E. GUI Llf-$LH /+d?-Tz)A!
Counsel for boast Waste
Management, Inc.
NOTE: THIS SUBLEASE HAS BEEN REVIEWED AND APPROVED BY THE COUNTY
OF. SAN DIEGO AIRPORTS DIVISION, LANDOWNER AND MASTER LESSOR, AS
SET FORTH IN THE Al-l-ACHED CONSENT TO SUBLEASE.
Dralt 5 - CeasUCarlsbad Sublease
ClTCAD7.324
Revised October 9,1997 14 -
__ ___. ___._ - -..- - ----.. -__,-. __ - -
4.
._ - 2- _-
INDUSTRIAL LEASE - AIRPORTS
MCCLELLAN-PALOMAR AIRPORT
CARLSBAD, CALIFORNIA
LESSOR: COUNTY OF SAN DIEGO
LESSEE: CITY OF CARLSBAD
PARCEL: 97-0085-Al
CCSF: 85.20A, 8/96
CCSF 85.2OA, 1\96
COUNTY CONTRACT NO. 7jqffT-j?
INDEX
ARTICLE 1: SUMMARY OF BASIC LEASE PROVISIONS . . . . . .
1.1:
1.2:
1.3:
1.4:
1.5:
1.6:
1.7:
1.8:
1.9:
1.10:
1.11:
1.12:
1.13:
1.14:
1.15:
1.16:
Lessor ..................
Lessee ..................
Premises and Property ...........
County's and Lessee's Lease Administrators
Effective Date ..........
Term ...............
Commencement Date .........
Rent Start Date ..........
Rent ...............
Cost of Living Adjustments ....
Extra Rent ............
Security Deposit .........
General Description of Lessee's Use
Premises .............
Definitions ............
Exhibits to Lease .........
Construction of Lease Provisions .
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ARTICLE 2: LEASE OF PREMISES ............
2.1: Description ..............
2.2: Mineral Rights ............
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2.3: Reservations to County/Easement Reservations
2.4: Lease Subordinate to Conditions and
Restrictions Imposed by Public Agencies
on Airport Operations . . . . . . . . . . . .
2.5: County's Right to Operate Weigh Scales
Facilities . . . . . . . . . . . . . . . . .
ARTICLE 3: TERM OF LEASE AND FIRST RIGHT TO PURCHASE
THE PREMISES . . . . . . . . . . . . . . . . . .
3.1: Term; Definitions . . . . . . . . . . . . . .
3.2: First Right to Purchase the Premises . . . .
3.3: Consideration for First Right to Purchase the
Premises . . . . . . . . . . . . . . . . . .
3.4: Surrender of the Premises; Quitclaim of
Lessee's Interest Upon Termination . . . . .
ARTICLE4:RENT. . . . . . . . . . . . . . . . . . . . . .
4.1: Base Monthly Rent . . . . . . . . . . . . . .
4.2: Extra Rent . . . . . . . . . . . . . . . . .
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CCSF 85.20A, 1\96
4.3: Delivery of Rent Payments . . . . .
4.4: Failure to Pay Base Monthly Rent or
Rent; Late Charge . . . . . . . . .
4.5: Cost of Living Adjustments (‘COLA")
Base Monthly Rent .......
4.5.1: Consumer Price Index .....
ARTICLE 5: SECURITY DEPOSIT .........
ARTICLE 6: POSSESSION AND USE ........
6.1: Permitted Uses .........
6.2: Duties and Prohibited Conduct .
6.3: Compliance with Laws ......
6.4: Substance Abuse ........
6.5: Control of Premises ......
ARTICLE 7: UTILITIES ............
ARTICLE 8: MECHANICS' LIENS .........
8.1: Mechanics' Liens ........
8.2: Contest of Lien ........
8.3: Right to Cure .........
8.4: Notice of Lien .........
8.5: Notice of Nonresponsibility . .
ARTICLE 9: SECURITY .............
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ARTICLE 10: IMPROVEMENTS; PERSONAL PROPERTY; FIXTURES;
MINOR ALTERATIONS ...........
10.1: Improvements ............
10.2: Construction Requirements ......
10.3: County's Costs; Indemnity ......
10.4: Personal Property ..........
10.5: Fixtures ..............
10.6: Signs and Lighting .........
10.7: Minor Alterations ..........
ARTICLE 11: TAXES, ASSESSMENTS AND FEES ......
11.1: Responsibility for Payment of Taxes
and Assessments ...........
11.2: Definition of ‘Taxes" ........
11.3: Creation of Possessory Interest ...
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CCSF 85.2OA, 1\96 3
ARTICLE 12: REPAIRS; MAINTENANCE ............
12.1: Acceptance of Premises ..........
12.2: Lessee's Repair and Maintenance Obligations
12.3: Lessee's Failure to Maintain .......
12.4: Right to Enter ..............
12.5: Leasehold Compliance Surveys .......
12.6: County Not Obligated to Repair or Maintain:
Lessee's Waiver of California Civil Code
Section 1942 ..............
ARTICLE 13: INDEMNITY AND INSURANCE. .........
13.1: Indemnity ................
13.2: Insurance ................
ARTICLE 14: HAZARDOUS MATERIALS ............
14.1: Hazardous Materials Laws - Definition . .
14.2: Hazardous Materials - Definition ....
14.3: Lessee's Representations and Warranties .
14.4: Indemnification by Lessee ........
14.5: Remedies Cumulative; Survival ......
14.6: Inspection ...............
14.7: Underground Storage Tanks ........
ARTICLE 15: ASSIGNMENT, SUBLEASING AND ENCUMBRANCING .
15.1: County's Consent to Subleasing Required .
15.2: County's Election ............
15.2.1: Consent to Sublease ..........
15.2.2: Denial of Consent to Sublease .....
15.2.3: Article Controlling ..........
15.3: Sublease Processing Fee .........
15.4: No Release of Lessee ..........
15.5: No Merger ................
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15.6: Approval of Temporary or Limited Activities by County .................. . .
ARTICLE 16: DEFAULTS BY LESSEE; COUNTY'S REMEDIES ....
16.1: Events of Default .............
16.2: Notices ..................
16.3: County's Rights and Remedies .......
16.4: County's Damages .............
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16.5: Lessee's Waiver . . . . . . . . . . . . . . . .
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CCSF 85.20A, 1\96 4
ARTICLE 17: DEFAULTS BY COUNTY; REMEDIES
ARTICLE 18: ABANDONMENT . . . . . . . . .
ARTICLE 19: BANKRUPTCY . . . . . . . . .
19.1: Right of Termination . . .
19.2: Request for Information . .
ARTICLE 20: DAMAGE OR DESTRUCTION . . . .
20.1: Insured Casualty . . . . .
20.2: Construction Provisions . .
20.3: Abatement of Rent . . . . .
20.4: Release of Liability . . .
20.5: Uninsured Casualty . . . .
20.6: Major Destruction . . . . .
ARTICLE 21: EMINENT DOMAIN . . . . . . .
21.1: Condemnation . . . . . . .
21.2: Continuation of Lease After
21.3: Lessee's Award . . . . . .
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21.4: Allocation of Condemnation Award for a
Total Taking of the Premises . .
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ARTICLE 22: SALE OR MORTGAGE BY COUNTY .
22.1: Sale or Mortgage . . .
22.2: Release on Sale . . . .
ARTICLE 23: SUBORDINATION; ATTORNMENT
23.1: Subordination . . . . .
23.2: Attornment . . . . . .
ARTICLE 24: COUNTY'S RIGHT OF ACCESS
ARTICLE 25: QUIET ENJOYMENT . . . . .
ARTICLE 26: HOLDING OVER . . . . . .
ARTICLE 27: NOTICES . . . . . . . . .
27.1: Notices . . . . . . . .
27.2: Default Notices . . . .
ARTICLE 28: NONDISCRIMINATION . . . .
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CCSF 85.20A. 1\96 5
ARTICLE 29: AFFIRMATIVE ACTION PROGRAM . . . . . . . .
ARTICLE 30: WAIVER OF RELOCATION ASSISTANCE BENEFITS .
30.1: Relocation Assistance Benefits . . . . .
30.2: Lessee's Waiver and Release of Relocation
Benefits ..........
ARTICLE 31: RECORDS, ACCOUNTS AND AUDITS .
ARTICLE 32: GENERAL PROVISIONS ......
32.1: Authority ..........
32.2: Brokers ...........
32.3: Captions ..........
32.4: County Approval .......
32.5: Cumulative Remedies .....
32.6: Entire Agreement ......
32.7: Estoppel Certificate ....
32.8: Exhibits ..........
32.9: Force Majuere ........
32.10: Governing Law .......
32.11: Interpretation .......
32.12: Joint and Several Liability
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32.13: Lessee's Lease Administration
32.14: Modification .........
32.15: Partial Invalidity ......
32.16: Payments ...........
32.17: Successors & Assigns .....
32.18: Time of Essence .......
32.19: Waiver ............
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EXHIBIT A: DESCRIPTION AND PLAT OF THE PREMISES
EXHIBIT B: FEDERAL AVIATION ADMINISTRATION REQUIREMENTS
EXHIBIT C: MCCLELLAN-PALOMAR AIRPORT INDUSTRIAL AREAS DEVELOPMENT
STANDARDS
EXHIBIT D: MCCLELLAN-PALOMAR AIRPORT INDUSTRIAL AND AVIATION
AREAS PERFORMANCE STANDARDS
EXHIBIT E: INSURANCE REQUIREMENTS
A: Liability Insurance
(1) : Comprehensive General Liability Insurance
CCSF 85.201, 1\96 6
(2) : Commercial General Liability Insurance
(3) : Required Liability Policy Coverage
(4): Additional Insured Endorsement
(5) : Primary Insurance Endorsement
(6) : Form of Liability Insurance Policies
B: All Risk Fire Insurance
(1): Deductible
(2) : Rental Income Insurance
(3): Loss Payee
(4) : Proceeds of Insurance
C: Comprehensive Automobile/Aircraft /Watercraft
Liability Insurance
D: Statutory Workers' Compensation and Employer's
Liability Insurance
E: General Provisions
(1): Certificates of Insurance
(2) : Claims Made Coverage
(3) : Failure to Obtain or Maintain Insurance; County's
Remedies
(4) : No Limitations of Obligations
(5) : Notice of Cancellation or Change of Coverage
(6) : Qualifying Insurers
(7) : Review of Coverage
(8): Self-Insurance
(9) : Sublessees' Insurance
(10) : Waiver of Subrogation
EXHIBIT F: COUNTY OF SAN DIEGO REQUIRED SUBLEASE PROVISIONS
CCSF 85.20A, 1\96 7
INDUSTRIAL LEASE AGREEMENT
(AIRPORTS)
THIS INDUSTRIAL LEASE AGREEMENT (l'Leasel') is made and
entered into effective as of , 1997 ("Effective Date"),
by and between the COUNTY OF SAN DIEGO, a political subdivision
of the State of California (llCountyll), and the CITY OF CARLSBAD,
a municipal corporation (I~Lesseel~).
IN CONSIDERATION OF THE RENTS AND COVENANTS set forth in
this Lease, the County hereby leases to Lessee, and Lessee hereby
leases from County, the Premises described in Article 1 (SUMMARY
OF BASIC LEASE PROVISIONS) below, upon the following terms and
conditions:
ARTICLE 1
SUMMARY OF BASIC LEASE PROVISIONS
1.1 Lessor: COUNTY OF SAN DIEGO, a political
subdivision of the State of California
Address for notice:
Director
Department of General Services
Building 2
5555 Overland Avenue
San Diego, California 92123
with a copy to:
Assistant Deputy Director - Aviation
1960 Joe Crosson Drive
El Cajon, California 92020
1.2 Lessee: CITY OF CARLSBAD,
a municipal corporation
Address for notice:
2075 Las Palmas Drive
Carlsbad, CA 92009
CCSF 85.2OA. 1\96 8
I.3 Premises and Pronertv : The Premises means that
approximately 10.975 acres designated Parcel 97-0085-Al as
delineated on Exhibit "A" (DESCRIPTION AND PLAT OF THE PREMISES)
attached hereto and by this reference incorporated in this Lease.
The term "Property", as used herein, includes the Premises, all
buildings and improvements to the Premises, the parking lots and
any parking structures appurtenant to the buildings, and such
other facilities, structures and improvements located thereon.
. I 1.4 County's and J,essee's J,ease Administrators : This Lease
shall be administered on behalf of County by the Director,
Department of General Services, County of San Diego, or by such
person's duly-authorized designee, referred to collectively in
this Lease as "County's Lease Administrator", and on behalf of
Lessee by Lessee's City Manager, or by such other person as may
be designated in writing by Lessee, referred to in this Lease as
t'Lesseels Lease Administrator".
1.5 Effective Date : See Section 3.1 (TERM; DEFINITIONS).
1.6 Term. The term of this Lease shall be FIVE (5) YEARS,
commencing June 1, 1997 and ending May 31, 2002.
1.7 Commencement Date: See Section 3.1 (TERM; DEFINITIONS).
1.8 Rent Start Date : See Section 4.1 (BASE MONTHLY RENT).
1.9 Rent: The Base Monthly Rent is TWENTY-THREE THOUSAND,
SIX HUNDRED THIRTY-FOUR DOLLARS AND NINETY CENTS ($23,634.90) and
shall be adjusted annually as set forth in Section 4.5 [COST OF
LIVING ADJUSTMENTS ("COLA") TO THE BASE MONTHLY RENT]. Base
Monthly Rent is payable as stated in Section 4.1 (BASE MONTHLY
RENT).
1.10 Cost of Livincr Adiustments : See Section 4.5. [COST OF
LIVING ADJUSTMENTS (COLA) TO THE BASE MONTHLY RENT].
1.11 Extra Rent: Any and all sums of money or charges
other than Base Monthly Rent required to be paid by Lessee to
County pursuant to the provisions of this Lease shall be paid as
"Extra Rent".
CCSF E5.20A, 1\96 9
1.12 witv Deoosit: TWENTY-THREE THOUSAND, SIX HUNDRED
THIRTY-FOUR DOLLARS AND NINETY CENTS ($23,634.90). See Article 5
(SECURITY DEPOSIT).
I I 1.13 Lee Is Use of premi qa :
Lessee shall use the Premises solely for the uses specified in
this Lease, generally described as the office operations of a
solid waste collection business, a recycling facility, and a
trash transfer station, including office, repair and storage
facilities for equipment used in collecting and transferring
trash.
1.14 Defw: As used in this Lease, the following
terms shall have the meanings attached to them in this Section
unless otherwise apparent from their context:
a.
b.
C.
d.
e.
f.
57.
CCSF 85.20A. 1\96
"Airport" means McClellan-Palomar Airport,
Carlsbad, California.
"Assistant Deputy Director - Aviation" means the
Assistant Deputy Director - Aviation, of the
Department of Public Works, County of San Diego,
or upon written notice to Lessee, such other
person as shall be designated from time-to-time by
the Board.
"Board" means the Board of Supervisors of the
County of San Diego.
"F.A.A." means the Federal Aviation
Administration.
"Standards" means the McClellan-Palomar Airport
Industrial Areas Development Standards and the
McClellan-Palomar Airport Industrial and Aviation
Areas Performance Standards attached as Exhibits
"Cn and 'ID" hereto.
"ALP" means the F.A.A.-approved Airport Layout
Plan for McClellan-Palomar Airport.
"Settlement Agreement" means that Settlement
Agreement entered into between County and Lessee
10
on August 8, 1997 and recorded in the Office of
the Recorder of the County of San Diego on August
14, 1997 as Document Number 1997-0389855.
1.15 -ibits To Lease: The following drawings and special
provisions are attached hereto as exhibits and made a part of
this Lease:
BIT ‘IA” Description and Plat of the Premises.
FXHIBIT "R" FAA Requirements.
EXHIBIT "C" McClellan-Palomar Airport Industrial
Areas Development Standards.
EXHIBIT “D” _ McClellan-Palomar Airport Industrial and
Aviation Areas Performance Standards.
EXHIBIT "E" - Insurance Requirements.
EXHIBIT F \\ I, County of San Diego Required Sublease
Provisions
1.16 Construction of Lease Provisiona: The foregoing
provisions of this Article summarize for convenience only certain
key terms of the Lease delineated more fully in the Articles and
Sections referenced in this Article. In the event of a conflict
between the provisions of this Article and the balance of the
Lease, the latter shall control.
ARTICLE 2
LEASE OF PREMISES
2.1 Descrintion. County hereby leases to Lessee and Lessee
hereby leases from County, for the rent and upon the covenants
and conditions set forth in this Lease, the Premises described in
Section 1.3 (PREMISES AND PROPERTY) above.
2.2 tieral Rjcrhts . Notwithstanding any provision of this
Lease to the contrary, County hereby expressly reserves all
rights, title and interest in and to any and all gas, oil,
mineral and water deposits located upon or beneath the surface of
the Premises.
CCSF 85.2OA. 1\96 11
2.3 Reservations. Lessee
accepts the Premises subject to any and all existing easements
and encumbrances. County reserves the right to establish, to
grant or to use easements or rights-of-way over, under, along and
across the Premises for access, underground sewers, utilities,
thoroughfares or such other facilities as it deems necessary for
public health, convenience and welfare, whether or not such
facilities directly or indirectly benefit the Premises, and to
enter the Premises for any such purpose; provided, however, that
any such grant of rights by County shall require that the
Premises be restored to their preexisting condition. If loss in
Lessee's use of the Premises occurs because of easements and
encumbrances granted after the Commencement Date of this Lease by
County to other parties on, through or under the Premises, the
monthly rent shali be reduced proportionately to the loss in use
by Lessee for the period of time such loss continues to occur.
. 9 . I 2.4 &.&qe Subordinate to Conditions and Restrictions
c Aaencies on q;LTnort Oweratio= . This Lease
shall be subordinate and subject to the terms, conditions,
restrictions and other provisions of any existing or future
permit, lease and agreement between County and any federal, State
or local agency governing County's control, operation or
maintenance of the Airport, or affecting the expenditure of
federal funds for the Airport. Lessee shall be bound by all such
terms and conditions, and shall, whenever County may so demand,
execute, acknowledge or consent to any instrument evidencing such
terms, conditions, restrictions or provisions. Without limiting
the generality of the foregoing, this Lease and Lessee's
occupancy of the Premises are expressly made subordinate and
subject to the terms, conditions, restrictions and other
provisions of those requirements of the Federal Aviation
Administration specifically set forth in Exhibit llB" (FAA
REQUIREMENTS) and Lessee shall be bound by all such requirements.
2.5 !&unty's Riaht to Operate Weicrh Scales Facilities.
County shall the right to, but not the obligation to individually
or collectively, construct, operate and maintain weigh scales and
fee collection booths on the Premises and the users of such
scales shall have the right of ingress and egress to such scales,
all without cost, interference or diminution in rent to County.
County shall have the right to assess and collect fees from the
users of such scales. County shall have the right to assign its
CCSF 85.20A, 1\96 12
-
rights under this Section upon thirty (30) days' written notice
to Lessee.
ARTICLE 3
TERM OF LEASE AND FIRST RIGHT TO PURCHASE THE PREMISES
3.1 * I * Term. Defmtiom . . This Lease shall be effective as of
the "Effective Date," which is defined as the date of execution
of the Lease by County's Board of Supervisors. The term (l'Termf')
of this Lease shall commence on the IlCommencement Date" and shall
continue thereafter for the period specified in Article 1
(SUMMARY OF BASIC LEASE PROVISIONS), unless sooner terminated as
provided in this Lease. As used in this Lease, the "Commencement
Date" means June 1, 1997. Except as otherwise specifically
stated in this Lease or in any subsequent amendments hereof, the
terms and conditions of this Lease shall remain in effect
following any extension, renewal or holdover of the original
Term.
3.2 ' * First Ricrht to Purchase the Premises.
a. If, during the Term of this Lease, County has
reached agreement on terms and conditions of sale for all or a
portion of the Premises to a party other than Lessee (Other
Party), County shall hold in abeyance such sale to Other Party
until Lessee has an opportunity to exercise its First Right to
Purchase the Premises (First Right) under the same terms and
conditions agreed to by Other Party. County shall notify Lessee,
in writing, of the conditions of sale to Other Party and Lessee
must exercise its First Right by notifying County, in writing,
within ninety (90) days after Lessee has been so notified. In
the event County does not receive written notification from
Lessee exercising Lessee's First Right within said ninety (90)
days, County may proceed to sell all or a portion of the Premises
to Other Party according to the terms and conditions contained in
the notification to Lessee. In the event Lessee is in default
under the terms of this Lease at the time County gives Lessee
said notification or if Lessee defaults at any time following
said notification, Lessee's First Right shall be null and void
and County may proceed to sell all or a portion of the Premises
to Other Party under the agreed upon terms and conditions.
b. Lessee's First Right shall be personal to the
CCSF 85.20A. 1\96 13
.
originally named Lessee (City of Carlsbad), and shall be
exercisable only by the originally named Lessee, and not by any
assignee, sublessee, or other transferee- of Lessee's interest 'in
this Lease.
C. In the event County receives written notice from
Lessee exercising its First Right within ninety (90) days after
Lessee has received written notice from County of County's intent
to sell, County and Lessee shall proceed to the sale of the
Premises to Lessee, or that portion of the Premises County
intends to sell, under the same terms and conditions agreed upon
between County and Other Party.
d. In the event Lessee does not successfully fulfil1
each and every term and condition of the sale as agreed upon
between County and Other Party, Lessee's First Right shall
terminate and County may proceed with the sale to Other Party.
e. The negotiation of a sale of the Premises from
County to City or Other Party is subject to approval by the
Federal Aviation Administration and without such approval the
terms of this Section 3.2 (FIRST RIGHT TO PURCHASE THE PREMISES)
are null and void.
f. Notwithstanding the terms of this Article, in the
event all or a portion of the Premises is threatened with
condemnation, County may sell or assign its interest in the
Premises, or any portion thereof, to any condemning governmental
agency and, in such event, Lessee shall have no First Right as
specified above.
3.3 Wderation for First Riaht to Purchase the Premises.
In consideration of County granting the rights to Lessee
contained in Section 3.2 (FIRST RIGHT TO PURCHASE THE PREMISES),
Lessee agrees not to initiate or participate in any legal action
to condemn any portion of that property known as McClellan-
Palomar Airport owned by County and/or controlled by the Airports
Division of the Department of Public Works or its successors in
interest, through May 31, 2002 or any extension of the Term of
this Lease.
3.4 Surrender of the Premises, Ouitclai of Lewee s . 'm I
Jnterest Uwon Termination . Lessee shall surrender possession of
CCSF 85.20A, 1\96 14
the Premises to County upon expiration of the Term or earlier
termination of this Lease. Upon termination of this Lease for
any reason, including but not limited to termination because of
default by Lessee, Lessee shall execute, acknowledge and deliver
to County, within thirty (30) days following receipt of written
demand therefor, a good and sufficient deed whereby Lessee
quitclaims all right, title and interest in the Premises to
County. Should Lessee fail or refuse to deliver such quitclaim
deed to County, County may prepare and record a notice reciting
the failure of Lessee to do so, and such notice shall be
conclusive evidence of the termination of this Lease and of all
right of Lessee or those claiming under Lessee to the Premises.
ARTICLE 4
RENT
4.1 Base Monthly Rent. Subject to adjustment as provided
in Section 4.5 [COST OF LIVING ADJUSTMENTS ("COLA") TO THE BASE
MONTHLY RENT], Lessee shall pay as rent for the use and occupancy
of the Premises, the Base Monthly Rent specified in Article 1
(SUMMARY OF BASIC LEASE PROVISIONS). Lessee shall pay said rent
in advance, on the first day of each calendar month ("Due Date"),
without setoff, deduction, prior notice or demand, commencing on
the Commencement Date.
4.2 Extra Rent. Lessee shall pay, as Extra Rent, all sums
of money required to be paid pursuant to the terms of this Lease
which are not payable as Base Monthly Rent, collectively referred
to in this Lease as "Extra Rent." If such amounts or charges are
not paid at the time provided in this Lease, they shall
nevertheless be collectible as Extra Rent with the next
installment of Base Monthly Rent thereafter falling due, but
nothing in this Section shall be deemed to suspend or delay the
payment of any amount of money or charge at the time the same
becomes due and payable under this Lease or to limit any other
remedy of County. All amounts of Base Monthly Rent and Extra
Rent payable in a given month shall be deemed to comprise a
single rent obligation of Lessee to County.
4.3 Deliverv of Rent Pavments. All rent due under this
Lease shall be made payable to County of San Diego, and shall be
considered paid when delivered to:
CCSF 85.20A, 1\96 15
Controller Branch Office
5201 Ruffin Road, Suite H (MS 0654)
San Diego, California 92123
County may, at any time by written notice to Lessee, designate a
different address to which Lessee shall deliver the rent
payments. County may, but is not obligated to, send monthly rent
invoices to Lessee.
4.4 J?ajlure to Pav Base Monthlv Rent or Extra Rent, . Ilate
Charae.
a. If Lessee fails to pay rent due hereunder within
fifteen (15) days of the time it is due and payable, such unpaid
amounts shall bear interest at the rate of ten percent (10%) per
year from the date due to the date of payment, computed on the
basis of monthly compounding with actual days elapsed compared to
a 360-day year. In addition to such interest, Lessee
acknowledges that the late payment by Lessee of any monthly
rental due hereunder will cause County to incur certain costs and
expenses not contemplated under this Lease, the exact amount of
which costs being extremely difficult or impracticable to fix.
Such costs and expenses will include, without limitation,
administrative and collections costs, and processing and
accounting expenses. Therefore, if any such monthly rental is
not received by County from Lessee when due, Lessee shall
immediately pay to County a late charge equal to five percent
(5%) of such overdue amount. County and Lessee agree that this
late charge represents a reasonable estimate of such costs and
expenses and is fair compensation to County for its loss caused
by Lessee's nonpayment. Should Lessee pay said late charge but
fail to pay contemporaneously therewith all unpaid amounts of
rent due hereunder, County's acceptance of this late charge shall
not constitute a waiver of Lessee's default with respect to such
nonpayment by Lessee nor prevent County from exercising all other
rights and remedies available to County under this Lease or under
law.
b. In the event of a dispute between the parties as to
the correct amount of Base Monthly Rent or Extra Rent owed by
Lessee, County may accept any sum tendered by Lessee in payment
thereof, without prejudice to County's claim as to the proper
amount of rent owing. If it is later determined that Lessee has
CCSF 85.20A, 1\96 16
not paid the full amount of rent owing, the late charge specified
herein shall apply only to that portion of the rent still due and
payable from Lessee. Notwithstanding any provision of this
Article to the contrary, however, County's Lease Administrator
may waive any delinquency payment or late charge upon written
recommendation of the Assistant Deputy Director - Aviation.
P 4.5 Cost of Livinq Adjustments ( COJ, ) to the me AN B Monthlv
Rent. The Base Monthly Rent provided for in Section 4.1 (BASE
MONTHLY RENT) shall be adjusted as of the first (1st) anniversary
of the Commencement Date, and thereafter every year on such date
for the remainder of the Term (each such one-year period is
referred to herein as a ‘COLA Period"), to reflect any increase
in purchasing power by use of the following formula:
R = A(B/C)
Wherein:
‘R" equals the monthly rent for the COLA Period being
calculated; provided, however, in no event shall the monthly rent
for any one-year COLA period be less than three (3) percent
greater or more than seven (7) percent greater than the monthly
rent for the previous one-year period;
‘A" equals the Base Monthly Rent set forth in Article 1
(SUMMARY OF BASIC LEASE PROVISIONS);
"B" equals the monthly Consumer Price Index, as hereinafter
defined, for the month of March immediately preceding the
commencement of the COLA Period for which the rent is being
adjusted: and
‘C" equals the monthly Consumer Price Index, as hereinafter
defined, for the month of March immediately preceding the
commencement of the Term.
4.5.1 Consumer Price Inda. The consumer price index which
shall be used as the source for the Consumer Price Index numbers
shall be that published by the United States Department of Labor,
entitled United States Department of Labor, Bureau of Labor
Statistics, Consumer Price Index for the Los Angeles-Anaheim-
CCSF 85.20A, 1\96 17
Riverside Area (1982-84 = 100). In the event that such index is
not published for the Los Angeles-Anaheim-Riverside Area, then
another comparable index or source of such information generally
recognized as authoritative shall be substituted by agreement of
the parties. If the parties should not agree, such source of
information shall be determined by arbitration pursuant to the
provisions of the California Code of Civil Procedure.
ARTICLE 5
SECURITY DEPOSIT
Lessee has paid or will pay to County the amount set forth
in Article 1.12 (SECURITY DEPOSIT), as security for Lessee's
performance of this Lease. County shall not be required to keep
this Security Deposit separate from its general or enterprise
funds, and Lessee shall not be entitled to interest thereon.
County may apply all or a part of the Security Deposit to any
unpaid rent or other charges due from Lessee, or to cure any
other defaults of Lessee under this Lease, including repair and
cleaning of the Premises at the expiration of the Term. If any
portion of the Security Deposit is so applied, Lessee shall,
within ten (10) days after County's demand, deposit cash
sufficient to restore the Security Deposit to its original
amount. Any time the Base Monthly Rent is increased, Lessee
shall deposit additional cash funds sufficient to increase the
Security Deposit by the same percentage amount. In the event of
bankruptcy or other debtor-creditor proceedings against Lessee,
the Security Deposit shall be deemed to be applied first to the
payment of rent and other charges due County for the periods
prior to the filing of such proceedings. The Security Deposit
will not be a limitation on County's damages or other rights
under this Lease, or a payment of liquidated damages, or an
advance payment of the rent. If Lessee pays the rent and
performs all of its other obligations under this Lease, County
will return the unused portion of the Security Deposit to Lessee
within sixty (60) days after the end of the Term.
ARTICLE 6
POSSESSION AND USE
6.1 B . Lessee shall use the Premises solely
for the uses permitted and described in Exhibit "Cm (MCCLELLAN-
PALOMAR AIRPORT INDUSTRIAL AREAS DEVELOPMENT STANDARDS) attached
CCSF 85.20A. 1\96 18
hereto, for the purposes specified in Section 1.13 (GENERAL
DESCRIPTION OF LESSEE'S USE OF PREMISES). Except as provided in
Section 2.5 (COUNTY'S RIGHT TO OPERATE WEIGH SCALES FACILITIES),
no one other than Lessee, its agents and employees, or any
sublessee of Lessee approved by County as provided in Article 15
(ASSIGNMENT, SUBLEASING AND ENCUMBRANCING) is permitted to use
the Premises for the purposes described herein, and Lessee shall
be fully responsible for the activities of its agents, employees
and sublessees, if any, on the Premises. Lessee acknowledges
that County reserves the right to permit others at the Airport to
provide one or more of the services to be provided by Lessee on
the Premises.
I . 6.2 Duties and Prohlblted Co nduct. Where Lessee is
reasonably in doubt as to the propriety of any particular use,
Lessee may request the written determination of County's Lease
Administrator that such use is or is not permitted, and Lessee
will not be in breach or default under this Lease if Lessee
abides by such determination. Notwithstanding the foregoing,
however, Lessee shall not use nor permit the use of the Premises
in any manner that will tend to create waste or a nuisance.
Lessee shall not use, or permit any person or persons to use, the
Premises for the sale or display of any goods or services which,
in the sole discretion of County, are inconsistent with the
permitted uses of the Premises pursuant to this Lease. Lessee
shall keep the Premises, and every part thereof, in a clean and
wholesome condition, free from any objectionable noises or odors,
except as may be typically present for the permitted uses
specified above, and shall comply with all local, State and
Federal ordinances and regulations in all respects. Lessee shall
deposit all trash and rubbish of Lessee only within receptacles
provided by Lessee and located in the areas designated by County.
Lessee shall not allow or permit installation of any billboards
or advertising signs, or aerials or antennas, upon the Premises
without first obtaining, in each instance, the written consent of
the Assistant Deputy Director - Aviation, which consent the
Assistant Deputy Director - Aviation may give or withhold in the
Assistant Deputy Director - Aviation's sole discretion. Any such
signs or antenna installed without such written consent shall be
subject to removal without notice at any time, at Lessee's
expense. Nothing in this Section shall be deemed to preclude
Lessee from erecting and maintaining safety, warning or
directional signs, of reasonable dimensions, which are not used
CCSF 85.2014, 1\96 19
for advertisement of goods or services; provided, however, that
all such signs must conform to applicable statutes and
ordinances.
6.3 Comnljance with J,aws.
a. Lessee, at Lessee's sole expense, shall procure,
maintain and hold available for County's inspection any
governmental license or permit required for the proper and lawful
conduct of Lessee's business. Lessee shall not use the Premises
for any use or purpose in violation of the laws of the United
States of America, or the laws, ordinances, regulations and
requirements of the State of California, the County of San Diego
or the city where the Premises are situated, or of other lawful
authorities. Lessee shall, at Lessee's expense, comply promptly
with all app1icabl.e statutes, laws, ordinances, rules,
regulations, orders, covenants and restrictions of record, and
requirements in effect during the Term, regulating the use by
Lessee of the Premises. The final judgment of any court of
competent jurisdiction, or the admission of Lessee or any
sublessee or permittee in any action or proceeding against them
or any of them, whether or not the County is a party to such
action or proceeding, that Lessee, or any such sublessee or
permittee, has violated any such ordinance, law, statute,
regulation, covenant, restriction or requirement pertaining to
the use of the Premises, shall be conclusive as to that fact as
between County and Lessee.'
b. Notwithstanding any other provision of this Lease
to the contrary, Lessee shall be responsible for payment of all
costs of complying with the requirements of the Americans with
Disabilities Act of 1990 (IIADAII) (42 USCS §§ 12101-122131, Title
24 of the California Code of Regulations ("Title 24") and
California Civil Code 5 54.1 as they may apply to the Premises.
Lessee's obligations under this Section shall include, without
limitation, all costs of bringing the Premises into compliance,
and thereafter maintaining such compliance, with the requirements
of Title III of the ADA ("Title III") (42 USCS §§ 12181 - 12189)
applicable during the Term to public accommodations and
commercial facilities, irrespective of whether or not the
particular requirements of such compliance (i) are specifically
required by Lessee's intended use of the Premises, or (ii) may
also be required of County under Title II of the ADA ("Title III')
CC.9 85.20A, 1\96 20
-.
(42 USCS §§ 12131 - 12165).
C. Lessee shall, with regard to the Property, assume
all obligations placed on County pursuant to any existing or
future industrial stormwater permit or existing or future
construction permit including, but not limited to, preparation of
any required Notices of Intent or Stormwater Pollution Prevention
Plans.
6.4 Substance Abuse. Lessee and its employees and agents
shall not use or knowingly allow the use of the Premises for the
purpose of unlawfully driving a motor vehicle or aircraft under
the influence of an alcoholic beverage or any drug, or for the
purpose of unlawfully selling, serving, using, storing,
transporting, keeping, manufacturing or giving away alcoholic
beverages or any "controlled substance," precursor or analog
specified in Division 10 of the California Health and Safety
Code, and violation of this prohibition shall be grounds for
immediate termination of this Lease.
6.5 Control of Premises, Failure of Lessee to exercise
control of the use of Premises to conform to the provisions of
this Article shall constitute a material breach of the Lease and
such shall be grounds for termination.
ARTICLE 7
UTILITIES
Lessee shall provide and pay for all initial utility
deposits and fees, and for all utilities and services necessary
for its use and occupancy of the Premises during the Term,
including but not limited to gas, water, electricity, trash,
sewer/septic tank charges and telephone; County shall have no
responsibility to either provide or pay for such services. If any
such services are not separately metered or billed to Lessee but
rather are billed to and paid by County, Lessee will pay to
County its QXQ rata share of the cost of such services, as
determined by County, together with its g;r;~ rata share of the
cost of making such determination. County will not be liable for
any reason for any loss or damage resulting from an interruption
of any of these services. County shall have the right, at no
charge from Lessee, to connect to any water, sewer, electrical,
gas and communications lines as are now or may hereafter be
CCSF 85.2OA. 1\96 21
installed on the Premises, and shall have all necessary rights of
access to construct and service such connections; provided,
however, that Lessee shall have no obligation to pay any
additional service fees or charges assessed by any governmental
agency, or public or private utility company, for County's use of
such connections.
ARTICLE 8
MECHANICS' LIENS
8.1 Mecwcs' Jliem . Lessee shall pay, or cause to be
paid, all costs for work done by it, or caused to be done by it,
on the Premises,.and for all materials furnished for or in
connection with any such work. If any lien is filed against the
Premises, Lessee shall cause the lien to be discharged of record
within ten (10) days after it is filed. Lessee shall indemnify,
defend and hold County harmless from any and all liability, loss,
damage, costs, attorneys' fees and all other expenses on account
of claims of lien of laborers or materialmen or others for work
performed or materials or supplies furnished for Lessee or
persons claiming under Lessee.
8.2 Contest of Jien . If Lessee shall desire to contest any
lien filed against the Premises, it shall furnish County, within
the ten-day period following filing of the lien, security
reasonably satisfactory to County of at least one hundred fifty
percent (150%;) of the amount of the lien, plus estimated costs
and interest, or a bond of a responsible corporate surety in such
amount, conditioned on the discharge of the lien. If a final
judgment establishing the validity or existence of a lien for any
amount is entered, Lessee shall immediately pay and satisfy the
same.
8.3 uaht to Cure . If Lessee shall be in default in paying
any charge for which a mechanics' lien claim and suit to
foreclose the lien have been filed, and shall not have given
County security to protect the property and County from liability
for such claim of lien, County may (but shall not be required to)
pay said claim and any costs, and the amount so paid, together
with reasonable attorneys' fees incurred in connection therewith,
shall be immediately due and owing from Lessee to County as Extra
Rent, and Lessee shall pay the same to County with interest at
the rate specified in Section 4.4 (FAILURE TO PAY BASE MONTHLY
CCSF 85.20A. 1\96 22
RENT OR EXTRA RENT; LATE CHARGE) from the date(s) of County's
payments.
8.4 Notice of Jien . Should any claim of lien be filed
against the Premises or any action against the Premises or any
action affecting the title to such property be commenced, the
party receiving notice of such lien or action shall immediately
give the other party written notice thereof.
8.5 Notice of NonresnQrMJbJlitv . County or its
representatives shall have the right to go upon and inspect the
Premises at all reasonable times and shall have the right to post
and keep posted thereon notices of nonresponsibility or such
other notices which County may deem to be proper for the
protection of County's interest in the Premises. Lessee shall,
before the commencement of any work which might result in any
such lien, give to County written notice of its intention to do
so in sufficient time to enable posting of such notices.
ARTICLE 9
SECURITY
Lessee shall be responsible for and shall provide for the
security of the Premises, and County shall have no responsibility
therefor. Lessee shall construct and maintain fences, gates,
walls and/or barriers on the Premises in a manner designed, in
the Assistant Deputy Director - Aviation's judgement, to prevent
unauthorized access to the Premises. At the Commencement Date of
this Lease, County agrees that Lessee's existing fencing is
adequate for normal security purposes. All plans for future
fences, gates, walls and/or barriers must be submitted to and
approved by the Assistant Deputy Director - Aviation prior to
construction. In the event the northerly boundary of the
Premises is adjusted for the construction of the easterly
prolongation of Faraday Road during the Term of this Lease,
Lessee shall move, at Lessee's sole expense, said security
fencing, gates, walls and/or barriers within thirty (30) days
following the completion of Faraday Road along the northerly
boundary of the Premises.
CCSF 85.20A. 1\96 23
ARTICLE 10
IMPROVEMENTS; PERSONAL PROPERTY;
FIXTURES; MINOR ALTERATIONS
10.1 mnrovements. Lessee may, at Lessee's own expense,
from time to time make such permanent and nonstructural
alterations, replacements, additions, changes, or improvements
(collectively referred to in this Lease as llImprovementsll) to the
Premises as Lessee may find necessary or convenient for its
purposes; provided, however, that the value of the Premises is
not thereby diminished, and further provided that no Improvements
may be made without obtaining the prior written approval of the
Assistant Deputy Director - Aviation. In no event shall Lessee
make or cause to be made any penetration into or through the roof
or floor of any structure on the Premises without obtaining the
prior written approval therefor of Assistant Deputy Director -
Aviation. Lessee shall at all times conduct its construction
operations so that such operations do not interfere with the
normal operation and use of the Airport by County, the public and
other persons and organizations entitled to use of the same.
10.2 Construction Recuirements . All Improvements to be
made to the Premises shall be made under the supervision of a
competent architect or licensed structural engineer and made in
conformity with any present or future ALP and Aviation Area
Development Standards which are or may be adopted by the Board
and the FAA, and with plans and specifications approved in
writing by the Assistant Deputy Director - Aviation before
commencement of any work. In connection therewith, Lessee shall
provide a minimum of three (3) sets of working drawings or plans
showing the planned Improvements, for County's approval, prior to
commencing work. All work with respect to any Improvements must
be done in a good and workmanlike manner, commenced within ninety
(90) days following receipt of approval therefor from the
Assistant Deputy Director - Aviation, and diligently prosecuted
to completion to the end that the Premises shall at all times be
a complete unit except during the period of work. Upon
completion of such work, Lessee shall have recorded in the office
of the San Diego County Recorder a Notice of Completion, as
required or permitted by law, and Lessee shall deliver to County,
within ten (10) days after completion of said work, a copy of the
Notice of Occupancy and the building permit with respect thereto.
Within sixty (60) days following completion of an Improvement,
CCSF E5.2OA, 1\96 24
Lessee shall provide the County with two (2) complete sets of
lVas-builtV1 plans of such Improvement. Upon the expiration or
earlier termination of this Lease, such Improvements shall not be
removed by Lessee but shall become a part of the Premises. Any
such Improvements shall be performed and done strictly in
accordance with the laws and ordinances relating thereto.
10.3 Countvls Costs. Indemnitv . . Lessee shall reimburse
County for all reasonable out-of-pocket costs and expenses
(including, without limitation, any architect or engineer fees)
incurred by County in approving or disapproving Lessee's plans
for Improvements. Lessee shall be liable for and shall indemnify
and defend County from any claim, demand, lien, loss, damage or
expense, including reasonable attorneys' fees and costs, arising
from Lessee's construction or installation of any Improvements
permitted under this Article.
10.4 Personal Pronertv D Subject to the provisions of the
following Section 10.5 (FIXTURES), all of Lessee's trade
fixtures, furniture, furnishings, signs and other personal
property not permanently affixed to the Premises (collectively
referred to as "Personal Property" in this Lease) shall remain
the property of Lessee. Lessee shall, at its expense,
immediately repair any damage occasioned to the Premises by
reason of the removal of any such Personal Property.
10.5 Fixtures . All Improvements constructed by Lessee, or
existing on the Premises on the Commencement Date, together with
all other fixtures, excepting Lessee's trade fixtures,
permanently attached to the Premises (collectively referred to in
this Lease as I~Fixturesl~) shall become the property of County
upon expiration or earlier termination of this-Lease.
Notwithstanding the foregoing, County may require Lessee to
remove any Fixtures at Lessee's own expense upon termination of
this Lease. Any damage to the Premises occasioned thereby shall
be repaired by Lessee in a good and workmanlike manner and the
Premises shall be left in as good order and condition as when
Lessee took possession thereof, reasonable wear and tear and
damage by the elements excepted. In the event Lessee does not
remove any Fixtures, Improvements or equipment following
direction by the County, County may remove, sell or destroy the
same, and Lessee shall pay to County the reasonable cost of such
removal, sale or destruction, together with the reasonable cost
CCSF E5.20A. 1\96 25
of repair of damages to County's property or improvements or to
the Premises resulting therefrom.
10.6 Sians and Lightina. Lessee shall not construct nor
permit the erection of any signs on the Premises without the
prior written approval of the Assistant Deputy Director -
Aviation. Lessee shall submit sketches of proposed signs to the
Assistant Deputy Director - Aviation for approval showing size,
materials, colors and location. Such signs must conform to the
standards contained in Exhibit "Cn (MCCLELLAN-PALOMAR AIRPORT
INDUSTRIAL AREAS DEVELOPMENT STANDARDS) and to any laws or
ordinances of governmental agencies having jurisdiction over the
Premises. All exterior lighting on the Premises must conform to
the standards contained in Exhibit IID" (MCCLELLAN-PALOMAR
AIRPORT INDUSTRIAL AND AVIATION AREAS PERFORMANCE STANDARDS) and
to any laws or ordinances of governmental agencies having
jurisdiction over the Premises.
10.7 Minor . Notwithstanding the foregoing
provisions of this Article, Lessee may make, without obtaining
the prior approval of the Assistant Deputy Director - Aviation,
minor alterations and improvements ("Minor Alteration") to the
Premises that do not require a building permit, or which involve
only the repair, replacement, or reconfiguration of non-load
bearing partition walls or Fixtures, and which do not penetrate
into or through the roof or floor of any structure on the
Premises, and which do not involve the construction of any new
structures on the Premises. The Assistant Deputy Director -
Aviation shall be the sole judge of whether or not any alteration
or improvement is a Minor Alteration. The Assistant Deputy
Director - Aviation shall promptly act on any request by Lessee
for a determination as to whether an alteration or improvement is
a Minor Alteration.
ARTICLE 11
TAXES, ASSESSMENTS AND FEES
11.1 Pesnonsibilitv for Pavment of Taxes and Assessments .
County shall not be obligated to pay any taxes or assessments
accruing against Lessee on the Premises or any interest of Lessee
therein before, during or after the Term, or any extension
thereof; all such payments shall be the sole responsibility of
Lessee. In addition, Lessee shall be solely responsible for
CCSF 85.2OA. 1\96 26
payment of any taxes or assessments levied upon any Improvements,
Fixtures or Personal Property located on the Premises, to the
extent that such taxes or assessments result from the business or
other activities of Lessee upon, or in connection with, the
Premises.
11.2 Defi&tion of lVTaxeslV . As used in this Lease,
term l'taxes'l means all taxes, governmental bonds, special
assessments, Mello-Roos assessments, charges, rent income
the
or
transfer taxes, license and transaction fees, including, but not
limited to, (i) any state, local, federal, personal or corporate
income tax, or any real or personal property tax, (ii) any estate
inheritance taxes, (iii) any franchise, succession or transfer
taxes, (iv) inte rest on taxes or penalties resulting from
Lessee's failure to pay taxes, (v) any increases in taxes
attributable to the sale of Lessee's leasehold interest in the
Premises, or (vi) any taxes which are essentially payments to a
governmental agency for the right to make improvements to the
Premises.
11.3 Creation of Possessorv Interest . Pursuant to the
provisions of Revenue and Taxation Code 107.6, Lessee is hereby
advised that the terms of this Lease may result in the creation
of a possessory interest. If such a possessory interest is
vested in Lessee, Lessee may be subjected to the payment of real
property taxes levied on such interest. Lessee shall be solely
responsible for the payment of any such real property taxes.
Lessee shall pay all such taxes when due, and shall not allow any
such taxes, assessments or fees to become a lien against the
Premises or any improvement thereon; provided, however, that
nothing in this Lease shall be deemed to prevent or prohibit
Lessee from contesting the validity of any such tax, assessment
or fee in a manner authorized by law.
ARTICLE 12
REPAIRS; MAINTENANCE
12.1 Accentmce of Premises. Lessee acknowledges that
Lessee has made a thorough inspection of the Premises prior to
the Effective Date of this Lease, and that it accepts the
Premises as of the Commencement Date in their condition at that
time. Lessee further acknowledges that County has made no oral
or written representations or warranties to Lessee regarding the
CCSF 85.201, 1\96 27
condition of the Premises, and that Lessee is relying solely on
its inspection of the Premises with respect thereto.
12.2 Lessee's Repair and Maintenance Oblications. Lessee
shall at all times from and after the Commencement Date, at its
own cost and expense, repair, maintain in good and tenantable
condition and replace, as necessary, the Premises and every part
thereof, including, without limitation, the following as
applicable: the roof; the heating, ventilation and air
conditioning system; mechanical and electrical systems; all
meters, pipes, conduits, equipment, components and facilities
(whether or not within the Premises) that supply the Premises
exclusively with utilities (except to the extent the appropriate
utility company has assumed these duties); all Fixtures and other
equipment installed in the Premises; all exterior and interior
glass installed in the Premises; all signs, locking and closing
devices; all interior window sashes, casements and frames; doors
and door frames (except for the painting of the exterior surfaces
thereof); floor coverings; and all such items of repair,
maintenance, alteration, improvement or reconstruction as may be
required at any time or from time to time by a governmental
agency having jurisdiction thereof. Lessee's obligations under
this Article shall apply regardless of whether the repairs,
restorations and replacements are ordinary or extraordinary,
foreseeable or unforeseeable, capital or noncapital, or the fault
or not the fault of Lessee, its agents, employees, invitees,
visitors, sublessees or contractors. All replacements made by
Lessee in accordance with this Section shall be of like size,
kind and quality to the items replaced and shall be subject to
prior written approval by the Assistant Deputy Director -
Aviation. Upon surrender of the Premises, Lessee shall deliver
the Premises to County in good order, condition and state of
repair, but shall not be responsible for damages resulting from
ordinary wear and tear. Lessee shall provide for trash removal,
at its expense, and shall maintain all trash receptacles and
trash areas in a clean, orderly and first-class condition.
12.3 Ilessee's Failure to Maintain . If Lessee refuses or
neglects to repair, replace, or maintain the Premises, or any
part thereof, in a manner reasonably satisfactory to County,
County shall have the right, upon giving Lessee reasonable
written notice of its election to do so, to make such repairs or
perform such maintenance on behalf of and for the account of
CCSF BS.ZOA, 1\96 28
Lessee. If County makes or causes any such repairs to be made or
performed, Lessee shall pay the cost thereof to County, as Extra
Rent, promptly upon receipt of an invoice therefor.
12.4 ut to Fnter . Lessee shall permit County, or its
authorized representatives, to enter the Premises at all times
during usual business hours to inspect the same, and to perform
any work thereon (a) that may be necessary to comply with any
laws, ordinances, rules or regulations of any public authority,
(b) that County may deem necessary to prevent waste or
deterioration in connection with the Premises if Lessee does not
make, or cause to be made, such repairs or perform, or cause to
be performed, such work promptly after receipt of written demand
from County, and .c) that County may deem necessary in connection
with the expansion, reduction, remodeling, protection or
renovation of any County-constructed or owned facilities on or
off of the Premises, or at the Airport. Nothing contained in
this Section shall imply any duty on the part of County to do any
such work which, under any provision of this Lease, Lessee may be
required to do, nor shall County's performance of any repairs on
behalf of Lessee constitute a waiver of Lessee's default in
failing to do the same. No exercise by County of any rights
reserved to it by this Section shall entitle Lessee to any
compensation, damages or abatement of rent from County for any
injury or inconvenience occasioned thereby.
12.5 Jteasehold Comnliance Survevs. In addition to County's
right to enter pursuant to Section 12.4 (RIGHT TO ENTER), above,
Lessee acknowledges and accepts County's right and intent to
conduct periodic Leasehold Compliance Surveys (Surveys). Said
Surveys shall be scheduled at a mutually convenient time for
County and Lessee, following written notice by County of its
intent to conduct a Survey. Said Survey will focus on, but not
be limited to, the condition of all leasehold improvements for
proper maintenance and building code compliance, compliance with
laws, and a verification of all subleases on the Premises.
Lessee agrees to cooperate with County, or its authorized
representative, during the Survey process and provide access to
all areas of the Premises, both interior and exterior. In the
event County, or its authorized agent, is not able to access all
areas of the Premises during the time of the scheduled Survey,
Lessee will reschedule a mutually convenient time for a follow up
survey to allow access to areas inaccessible during the initial
CCSF 85.2OA. 1\96 29
Survey appointment, and Lessee agrees to compensate County for
the personnel cost of the follow up Survey at the rate of $50 for
each hour of such follow up Survey. Refusal by Lessee to provide
access to all areas of the Premises shall be considered a
material breach of the Lease and grounds for termination.
12.6 Countv Not Oblj aated to ReDair or Majntain. . 1 Jlessee s * . Waiver of California Civil Code Sectjon 1942 . To the extent that
any remedies specified in this Lease conflict or are inconsistent
with any provisions of California Civil Code Section 1942, or any
successor statute thereto ("CC ,§1942tl), the provisions of this
Lease shall control. Lessee specifically waives any right it may
have pursuant to CC §1942 to effect maintenance or repairs to the
Premises and to abate the costs thereof from rent due to the
County under this Lease.
ARTICLE 13
INDEMNITY MUD INSURANCE
13.1 Udemnitv. County shall not be liable for, and Lessee
shall defend, indemnify, protect and hold County harmless from,
any and all claims, demands, liability, judgments, awards, fines,
mechanics' liens or other liens, losses, damages, expenses,
charges or costs of any kind or character, including actual
attorneys' fees and court costs (collectively referred to as
lVClaimsll) , arising from or in connection with, or caused by,
directly or indirectly, (i) any breach or default by Lessee of
its obligations under this Lease, (ii) any act, omission or
negligence of Lessee or any subtenant of Lessee, or their
respective contractors, licensees, invitees, agents, servants or
employees, (iii) any use of the Premises, or any accident,
injury, death or damage to any person or property occurring in,
on or about the Premises, or any part thereof, or any service
delivery facilities or any other portions of the Property used by
Lessee, and (iv) any labor dispute involving Lessee, its
employees, contractors or agents. In the event that County shall
exercise any of its rights under this Lease to enter the Premises
and/or the Property, or to authorize others to do so, not
including normal fee booth operations, Lessee and any authorized
sublessee and their officers, employees, and agents shall not be
liable for, and County shall defend, indemnify, protect, and hold
said parties harmless from, any and all claims, demands,
liability, judgments, awards, fines, mechanics' liens or other
CCSF 85.2OA, 1\96 30
liens, losses, damages, expenses, charges or costs of any kind or
character, including actual attorneys' fees and court costs
(collectively referred to as "claims"), arising from or in
connection with, or caused by, directly or indirectly, any such
entry by County or its agents resulting in any accident, injury,
death or damage to any person or property occurring in, on, or
about the Premises or any part thereof, or any service delivery
facilities or any other portions of the Property.
13.2 usurance. Without limiting Lessee's indemnification
obligations to County, Lessee shall provide and maintain, during
the Term and for such other period as may be required in this
Lease, at its sole expense, insurance in the amounts and form
specified in Exhibit "El' (INSURANCE REQUIREMENTS) attached
hereto; provided, however, the conditions set forth in this
subsection may be met by Lessee requiring any sublessee to carry
the insurance specified in Exhibit -EM (INSURANCE REQUIREMENTS) e
ARTICLE 14
HAZARDOUS MATERIALS
14.1 -dous Materials Laws - Definition. As used in
this Section, the term "Hazardous Materials' Laws" means any and
all federal, state or local laws or ordinances, rules, decrees,
orders, regulations or court decisions (including the so-called
llcommon law"), including without limitation the Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
as amended (42 U.S.C., 8 9601 et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C., 0 1801 et seq.), the
Resource Conservation and Recovery Act of 1976, as amended (42
U.S.C., fi 6901 et seq.), and the California Environmental Quality
Act of 1970, relating to hazardous substances, hazardous
materials, hazardous waste, toxic substances, environmental
conditions on, under or about the Premises, soil and ground water
conditions or other similar substances or conditions.
14.2 mxardous Materials - Definition. As used in this
Section the term "Hazardous Materials" means any chemical,
compound, material, substance or other matter that:
a. is a flammable, explosive, asbestos, radioactive
nuclear medicine, vaccine, bacteria, virus, hazardous waste,
toxic, overtly injurious or potentially injurious material,
CCSF 85.20A, 1\96 31
whether injurious or potentially injurious by itself or in
combination with other materials;
b. is controlled, referred to, designated in or
governed by any Hazardous Materials Laws;
C. gives rise to any reporting, notice or publication
requirements under any Hazardous Materials Laws, or
d. is any other material or substance giving rise to
any liability, responsibility or duty upon the County or Lessee
with respect to any third person under any Hazardous Materials
Law.
14.3 Lessee's Reoresentations and Warranties . Lessee
represents and warrants that, during the Term or any extension
thereof, or for such longer period as may be specified in this
Lease, Lessee shall comply with the following provisions of this
Section unless otherwise specifically approved in writing by
County's Lease Administrator:
a. Lessee shall not cause or permit any Hazardous
Materials to be brought, kept or used in or about the Premises by
Lessee, its agents, employees, sublessees, assigns, contractors
or invitees, except as required by Lessee's permitted use of the
Premises, as described in Section 6.1 (PERMITTED USES).
b. Any handling, transportation, storage, treatment or
usage by Lessee of Hazardous Materials that is to occur on the
Premises following the Commencement Date shall be in compliance
with all applicable Hazardous Materials Laws;
C. Any leaks, spills, release, discharge, emission or
disposal of Hazardous Materials which may occur on the Premises
following the Commencement Date shall be promptly and thoroughly
cleaned and removed from the Premises by Lessee at its sole
expense, and any such discharge shall be promptly reported in
writing to County, and to any other appropriate governmental
regulatory authorities;
d. No friable asbestos shall be constructed, placed
on, deposited, stored, disposed of, or located by Lessee in the
Premises or on the Property;
CCSF 85.2OA. 1\96 32
e. No underground improvements, including but not
limited to treatment or storage tanks, or water, gas or oil wells
shall be located by Lessee on the Premises or on the Property
without County's prior written consent;
f. Lessee shall conduct and complete all
investigations, studies, sampling, and testing procedures and all
remedial, removal, and other actions necessary to clean up and
remove all Hazardous Materials on, from, or affecting the
Premises in accordance with all applicable Hazardous Materials'
Laws and to the satisfaction of County;
g. Lessee shall promptly supply County with copies of
all notices, reports, correspondence, and submissions made by
Lessee to the United States Environmental Protection Agency, the
United Occupational Safety and Health Administration, and any
other local, state or federal authority which requires submission
of any information concerning environmental matters or hazardous
wastes or substances pursuant to applicable Hazardous Materials'
Laws;
h. Lessee shall promptly notify County of any liens
threatened or attached against the Premises pursuant to any
Hazardous Materials' Law. If such a lien is filed against the
Premises, then, within the earlier of (i) twenty (20) days
following such filing, or (ii) before any governmental authority
commences proceedings to sell the Premises pursuant to the lien,
Lessee shall either: (a) pay the claim and remove the lien from
the Premises, or (b) furnish either (i) a bond or cash deposit
reasonably satisfactory to County in an amount not less than the
claim from which the lien arises, or (ii) other security
satisfactory to County in an amount not less than that which is
sufficient to discharge the claim from which the lien arises; and
i. At the end of this Lease, Lessee shall surrender
the Premises to County free of any and all Hazardous Materials
and in compliance with all Hazardous Materials' Laws affecting
the Premises.
14.4 . . Indemnlflcation . Lessee and its successors,
assigns, and guarantors, if any, jointly and severally agree to
protect, indemnify, defend (with counsel mutually acceptable to
County and Lessee) reimburse and hold County and its officers,
CCSF 85.20A, 1\96 33
employees and agents harmless from any claims, judgments,
damages, penalties, fines, costs or expenses (known or unknown,
contingent or otherwise), liabilities (including sums paid in
settlement of claims), personal injury (including wrongful
death), property damage (real or personal) or loss, including
attorneys' fees, consultants' fees, and experts' fees
(consultants and experts mutually acceptable to County and
Lessee) which arise during or after the Term from or in
connection with the presence or suspected presence of Hazardous
Materials deposited by Lessee, its employees or agents during the
Term anywhere in the Premises or on the Property, including the
soil, ground water or soil vapor on or under the Property, except
to the extent Hazardous Materials are present as a result of the
negligence or willful misconduct of County, its officers,
employees or agents. Without limiting the generality of the
foregoing, the indemnification provided by this Section shall
specifically cover costs incurred in connection with
investigation of site conditions or any cleanup, remedial,
removal or restoration work required by any Hazardous Materials
Laws because of the presence of Hazardous Materials in the soil,
ground water or soil vapor on the Premises, and the release or
discharge of Hazardous Materials by Lessee during the course of
Lessee's alteration or improvement of the Premises, except to the
extent the Hazardous Materials are present solely as a result of
the negligence or willful misconduct of County, its officers,
employees or agents.
14.5 Remedies Cumulative: Survival. The provisions of this
Article shall be in addition to any and all obligations and
liabilities Lessee may have to County at common law, and any
remedies and the environmental indemnities provided for in this
Article shall survive the expiration or termination of this
Lease, the transfer of all or any portion of the Premises, and
the expiration, termination or transfer of any interest in this
Lease, and shall be governed by the laws of the State of
California.
14.6 Jnspectioq . County and County's agents, servants, ar
employees including, without limitation, legal counsel and
environmental consultants and engineers retained by County, may
(but without the obligation or duty so to do), at any time and
from time to time, on not less than ten (10) business days'
notice to Lessee (except in the event of an emergency in which
CCSF 85.20A. 1\96 34
case no notice shall be required), inspect the Premises to
determine whether Lessee is complying with Lessee's obligations
set forth in this Article, and to perform environmental
inspections and samplings, during regular business hours (except
in the event of an emergency) or during such other hours as
County and Lessee may agree. If Lessee is not in compliance,
County shall have the right, in addition to County's other
remedies available at law and in equity, to enter upon the
Premises immediately and take such action as County in its sole
judgment deems appropriate to remediate any actual or threatened
contamination caused by Lessee's failure to comply. County will
use reasonable, efforts to minimize interference with Lessee's use
of Premises but will not be liable for any interference caused by
County's entry and remediation efforts. Upon completion of any
sampling or testing County will (at Lessee's expense if County's
actions are a result of Lessee's default under this Section)
restore the affected area of the Premises from any damage caused
by County's sampling and testing.
14.7 yndexaround Storage Tanks . Lessee acknowledges that
on the Commencement Date of this Lease, two or more underground
storage tanks exist on the Premises. Lessee agrees, at Lessee's
sole cost and expense, to remove any such existing tanks or any
future tanks installed on the Premises during the term of this
Lease, if and when required by any Federal, state or local laws
and ordinances. Lessee further agrees to comply with any and all
remedial steps necessary upon such removal. Upon the termination
of this Lease, Lessee shall, at Lessee's sole cost and expense
and at the sole option of County, remove any underground storage
tank or tanks on the Premises and remediate the Premises, whether
or not such tanks are required to be removed by Federal, state or
local laws.
ARTICLE 15
ASSIGNMENT, SUBLEASING AND ENCUMBRANCING
15.1 Countvls Consent to Subleasincr Reuuired . Lessee shall
not voluntarily or involuntarily assign, mortgage, encumber, or
otherwise transfer (collectively referred to as a I~Transferl~) all
or any portion of the Premises or its interest in this Lease;
provided, however, Lessee may sublease all or any part of the
Premises with the prior written consent of County. County may
withhold its consent to sublease until Lessee has complied with
CCSF 85.20A, 1\96 35
the provisions of the following Sections of this Article. Any
attempted Transfer shall be void and shall constitute a breach of
this Lease. As used in this Lease, the term llSubleaseM shall
include an arrangement (including without limitation management
agreements, concessions, and licensees) that allows the use and
occupancy of all or part of the Premises by anyone other than
Lessee.
15.2 Gountvls Election . Lessee's request for consent to
any Sublease shall be accompanied by a written statement setting
forth the details of the proposed Sublease, including (i) the
name, address, business, business history and financial condition
of the sublessee (hereinafter called lVSublesseell), sufficient to
enable County to determine the financial responsibility and
character of the proposed Sublessee, (ii) a copy of the proposed
sublease containing original signatures of the two parties to the
Sublease, a plat showing the subleasehold premises, (iii) the
financial details of the proposed Sublease (including the
duration, the rent and any security deposit payable under the
Sublease), (iv) the Sublessee's proposed use of the Premises, and
(v) any other related information which County may reasonably
require. County shall have the right: (a) to withhold consent to
the Sublease, if reasonable; (b) to grant consent; (c) to consent
provided that County is paid, as Extra Rent under this Lease, all
sums or other consideration to be paid Lessee under the terms of
any Sublease of the entire Premises in excess of one (l)% of the
total rent due under this Lease; or (d) to terminate this Lease
for the portion of the Premises affected by any proposed
Sublease, in which event County may enter into a lease directly
with the proposed Sublessee.
15.2.1 Consent to Sublease. County's consent to a Sublease
will not be effective until (i) a fully executed copy of the
Sublease has been delivered to County, and, (ii) County has
received a written instrument in which the Sublessee has assumed
and agreed to perform all of Lessee's obligations under this
Lease. Any rights acquired by a Sublessee pursuant to any
Sublease shall be subject to each and every covenant, condition
and restriction set forth in this Lease and to all of the rights
and interest of County under this Lease except as may be
otherwise specifically provided in this Lease. County may
require any permitted Sublessee to make rent payments directly to
County, in the amount of rent due under this Lease. In the event
CCSF 85.20A. 1\96 36
.
of any conflict between the provisions of this Lease and the
provisions of any Sublease, the provisions of this Lease shall
control.
15.2.2 -al of Consent to Sublease . If County denies its
consent to the proposed Sublease, and if Lessee shall so request
in writing, County shall provide to Lessee a statement of the
basis on which County denied its consent within a reasonable time
after the receipt of Lessee's notice. County and Lessee agree
that Lessee shall have the burden of proving that County's
consent to the proposed Sublease was withheld unreasonably, and
that such burden may be satisfied if County fails to provide a
statement of a reasonable basis for withholding its consent
within a reasonable time after Lessee's request therefor.
Notwithstanding any of the foregoing provisions of this Section
to the contrary, the following shall be deemed to be reasonable
grounds for County to withhold consent to a Sublease for purposes
of compliance with California Civil Code Section 1951.4:
a. Lessee or any of its sublessees are in default as
to any term, covenant or condition of this Lease, whether or not
notice of default has been given by County.
b. The prospective Sublessee has not agreed in writing
to keep, perform and be bound by all of the terms, covenants and
conditions of this Lease.
C. County reasonably objects to the business or
financial conditicn of the prospective Sublessee or to the
financial details of the proposed Sublease.
d. All of the terms, covenants and conditions of the
Sublease, including any consideration therefor, have not been
disclosed in writing to County.
e. Any construction of improvements required of Lessee
as a condition of this Lease has not been completed to the
satisfaction of County.
f. Nonpayment of the Sublease Processing Fee described
below.
If Lessee believes that County has unreasonably withheld its
CCSF 85.2OA, 1\96 37
-
consent to a Sublease, Lessee's sole remedy will be to seek a
declaratory judgment that County has unreasonably withheld its
consent or an order of specific performance or mandatory
injunction of County's agreement to give its consent. In
addition, in the event that Lessee prevails in any such legal
action, Lessee shall be entitled to recover by way of damages its
actual out-of-pocket expenses incurred as a result of County's
unreasonable failure to approve of the sublease. Lessee will not
have any other right to recover damages or to terminate this
Lease.
15.2.3 Article . In the event of any conflict
between the provisions of this Article and any other provision of
this Lease, this Article shall control.
15.3 &&lease Processina Fee . If County is requested to
consent to a Sublease under this Article, Lessee shall pay all
County's reasonable attorneys' fees, plus a fee of $750
("Sublease Processing Fee") to reimburse County or County's agent
for costs and expenses incurred in connection with such request;
provided, however, no Sublease Processing Fee shall be required
for the first sublease proposed under this Lease if such first
sublease is proposed within six (6) months following the
Commencement Date of this Lease. The Sublease Processing Fee
shall be delivered to County concurrently with Lessee's request
for consent.
15.4 PO Release of Ilessee. No permitted Sublease shall
release or change Lessee's primary liability to pay the rent and
to perform all other obligations of Lessee under this Lease,
except to the extent the Lease is terminated as described above.
Lessee may not amend the Sublease in such a way as to reduce or
delay payment of amounts that are provided in the Sublease
approved by County. County's acceptance of rent from any other
person is not a waiver of any provision of this Article or a
consent to Sublease. County's consent to one Sublease shall not
be deemed to imply County's consent to any subsequent Sublease.
If Lessee's Sublessee defaults under this Lease, County may
proceed directly against Lessee without pursuing remedies against
the Sublessee.
15.5 No Merffer. No merger shall result from a Sublease
pursuant to this Article, Lessee's surrender of this Lease, or a
CCSF 85.20A. 1\96 38
mutual cancellation of this Lease in any other manner. In any
such event, County may either terminate any or all Subleases or
succeed to the interest of Lessee thereunder.
I I 15.6 Approval of Temporarv or Limted Act ivities bv Countv .
Notwithstanding any provision of this Article to the contrary,
the Assistant Deputy Director - Aviation may, at his or her sole
discretion, and without charging a Fee, give written
authorization for the following activities on the Premises: (i)
activities of a temporary nature, not to exceed one hundred
twenty (120) calendar days, and (ii) activities of a limited
nature which do not exceed ten (10) hours per week. Lessee shall
maintain, on an approved County form, a listing of all such
activities approved by County, stating the nature, duration and
other relevant matters regarding such activities, and shall make
such form available to County for inspection upon request.
Nothing in this Section shall relieve Lessee from its
responsibilities under this Lease, and Lessee shall be
responsible for insuring that any such activity approved by
County complies with all of the provisions of this Lease. Any
such temporary or limited activity shall be subject to immediate
termination upon delivery of written notification thereof from
the Assistant Deputy Director - Aviation.
ARTICLE 16
DEFAULTS BY LESSEE; COUNTY'S REMEDIES
16.1 Events of Default . The occurrence of any of the
following shall constitute a default by Lessee and a breach of
this Lease:
a. Failing or refusing to pay any amount of Base
Monthly Rent or Extra Rent when due in accordance with the
provisions of this Lease, and the default continues for five (5)
days after notice from County; provided, however, that Lessee
will not be entitled to more than one (1) notice for default in
payment of rent during any twelve-month period, and if, within
twelve (12) months after any such notice, any rent is not paid
when due, an event of default will have occurred without further
notice;
b. Failing or refusing to occupy and operate the
Premises in accordance with the provisions of this Lease;
CCSF 85.2OA, 1\96 39
C. Failing or refusing to perform fully and promptly
any covenant or condition of this Lease, other than those
specified in subparagraphs (a) and (b) above, the breach of which
Lessee is capable of curing after reasonable notice from County;
d. Maintaining, committing or permitting on the
Premises waste, a nuisance, or use of the Premises for an
unlawful purpose, or assigning or subletting this Lease in a
manner contrary to the provisions of this Lease;
e. The occurrence of any of the events set forth in
Section 19.1 (RIGHT OF TERMINATION), below.
16.2 Notices. Following the occurrence of any of the
defaults specified in the preceding Section, County shall give
Lessee a written notice specifying the nature of the default and
the provisions of this Lease breached and demanding that Lessee
either fully cure each such default within the time period
specified in the subparagraphs below or quit the Premises and
surrender the same to County:
a. For nonpayment of Base Monthly Rent or Extra Rent,
thirty (30) calendar days;
b. For a curable default, a reasonable period not to
exceed ten (10) working days, provided, however, that if such
default cannot be cured within said time period, Lessee shall be
deemed to have cured such default if Lessee so notifies County in
writing, commences cure of the default within said time period,
and thereafter diligently and in good faith continues with and
actually completes said cure; and
C. For a noncurable default, County shall give Lessee
a written notice specifying the nature of the default and the
provisions of this Lease breached and County shall have the right
to demand in said notice that Lessee, and any subtenant, quit the
Premises within thirty (30) calendar days.
To the extent permitted by applicable State law, the time periods
provided in this Section for cure of Lessee's defaults under this
Lease or for surrender of the Premises shall be in lieu of, and
not in addition to, any similar time periods described by
California Law as a condition precedent to the commencement of
CCSF 85.2OA, 1\96 40
legal action against Lessee for possession of the Premises.
16.3 Countvls Riahts and Remedia . Should Lessee fail to
cure any such defaults within the time periods specified in the
immediately preceding Section, subject to the right of Lessee to
invoke the dispute resolution provisions of the Settlement
Agreement to which this Lease is an Exhibit, in which event the
time limit shall be extended as necessary to accommodate the
dispute resolution process, or should Lessee fail to quit the
Premises as required thereby, County may exercise any of the
following rights when reasonably necessary to mitigate County's
damages without further notice or demand of any kind to Lessee or
any other person, except as may otherwise be required by
applicable California law:
a. The right of County to terminate this Lease and
Lessee's right to possession of the Premises and to reenter the
Premises, take possession thereof and remove all persons
therefrom, following which Lessee shall have no further claim
thereon or under this Lease;
b. The right of County without terminating this Lease
and Lessee's right to possession of the Premises, to reenter the
Premises and occupy the whole or any part thereof for and on
account of Lessee and to collect any unpaid rents and other
charges, which have become payable, or which may thereafter
become payable pursuant to Civil Code Section 1951.4; or
C. The right of County, even though it may have
reentered the Premises, in accordance with the immediately
preceding subparagraph (b) of this Section, to elect thereafter
to terminate this Lease and Lessee's right to possession of the
Premises.
Should County have reentered the Premises under the provisions of
subparagraph (b) of this Section, County shall not be deemed to
have terminated this Lease, the liability of Lessee to pay rent
or other charges thereafter accruing, or Lessee's liability for
damages under any of the provisions hereof, by any such reentry
or by any action, in unlawful detainer or otherwise, to obtain
possession of the Premises, unless County shall have notified
Lessee in writing that it has so elected to terminate this Lease
and Lessee's right to possession. Lessee further covenants that
CCSF 85.20A, 1\96 41
the service by County of any notice pursuant to the unlawful
detainer statutes of the State of California and the surrender of
possession pursuant to such notice shall not (unless County
elects to the contrary at the time of, or at any time subsequent
to, the serving of such notice and such election is evidenced by
a written notice to Lessee) be deemed to be a termination of this
Lease. In the event of any reentry or taking possession of the
Premises as aforesaid, County shall have the right, but not the
obligation, at Lessee's expense, to remove therefrom (i) all or
any part of any buildings or structures placed on the Premises by
Lessee or its agents, and (ii) any or all merchandise, Fixtures
or Personal Property located therein and to place the same in
storage at a public warehouse at the expense and risk of Lessee.
The rights and remedies given to County in this Section shall be
additional and supplemental to all other rights or remedies which
County may have under laws in force when the default occurs.
16.4 Countv's Damaaes . Should County terminate this Lease
and Lessee's right to possession of the Premises pursuant to the
provisions of Subsections a and c of Section 16.3 (COUNTY'S
RIGHTS AND REMEDIES), County may recover from Lessee as damages
any or all of the following:
a. The worth at the time of award of any unpaid rent
that had been earned at the time of such termination;
b. The worth at the time of award of the amount by
which the unpaid rent that would have been earned after
termination until the time of award exceeds the amount of such
rent loss Lessee pzoves could have been reasonably avoided;
C. The worth at the time of award of the amount by
which the unpaid rent for the balance of the Term after the time
of award exceeds the amount of such rent loss that Lessee proves
could be reasonably avoided;
d. Any other amount necessary to compensate County
for all the detriment proximately caused by Lessee's failure to
perform its obligations under this Lease or which in the ordinary
course of things would be likely to result therefrom, including,
without limitation, any costs or expense incurred by County in
(i) retaking possession of the Premises, including reasonable
attorneys' fees therefor, (ii) maintaining or preserving the
CCSF 85.20A. 1\96 42
Premises after such default, and, where costs exceed those which
would be incurred by County after this Lease terminates, the
following costs shall be recoverable by County from Lessee:
preparing the Premises for reletting to a new tenant, including
repairs or alterations to the Premises for such reletting,
leasing commissions, and any other costs necessary or appropriate
to relet the Premises; and
e. At County's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from
time to time by the laws of the State of California.
As used in subparagraphs (a) and (b) of this Section, the
"worth at the time of award" is computed by allowing interest at
the maximum rate allowed by California Law. As used in
subparagraph c of this Section, the "worth at the time of award"
is computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award
plus one percent (1%).
All rent, other than Base Monthly Rent shall, for the
purposes of calculating any amount due under the provisions of
subparagraph c of this Section, be computed on the basis of the
average monthly amount thereof accruing during the immediately
preceding sixty (60) month period, except that, if it becomes
necessary to compute such rent before such a sixty (60) month
period has occurred, then such rent shall be computed on the
basis of the average monthly amount hereof accruing during such
shorter period.
16.5 Jlpsseels Waiver. Notwithstanding anything to the
contrary contained in this Article, Lessee waives (to the fullest
extent permitted under law) any written notice (other than such
notice as this Article specifically requires or as required by
the Settlement Agreement) which any statute or law now or
hereafter in force prescribes be given Lessee. Lessee further
waives any and all rights of redemption under any existing or
future law in the event its eviction from, or dispossession of,
the Premises for any reason, or in the event County reenters and
takes possession of the Premises in a lawful manner.
CCSF 85.20A. 1\96 43
ARTICLE 17
DEFAULTS BY COUNTY; REMEDIES
If County shall neglect or fail to perform or observe any of
the terms, covenants, or conditions contained in this Lease on
its part to be performed or observed within thirty (30) days
after written notice of default or, when more than thirty (30)
days shall be required because of the nature of the default, if
County shall fail to proceed diligently to cure such default
after written notice thereof, then County shall be liable to
Lessee for any and all damages sustained by Lessee as a result of
County's breach.
ARTICLE 18
ABANDONMENT
Lessee shall not vacate or abandon the Premises at any time
during the term of this Lease nor permit the Premises to remain
unoccupied for a period of longer than thirty (30) consecutive
days during the term of this Lease. If Lessee shall abandon,
vacate or surrender the Premises, or be dispossessed by process
of law, or otherwise, any Personal Property or Fixtures belonging
to Lessee and left on the Premises shall, at the option of
County, be deemed abandoned. In such case, County may dispose of
said Personal Property in any manner provided by California Law
and is hereby relieved of all liability for doing so. These
provisions shall not apply if the Premises should be closed and
business temporarily discontinued therein on account of strikes,
lockouts, or similar causes beyond the reasonable control of
Lessee.
ARTICLE 19
BANKRUPTCY
19.1 &ght of Tern-&nation . Should any of the following
events occur, County may terminate this Lease and any interest of
Lessee therein, effective with the commencement of the event:
a. Proceedings are instituted whereby all, or
substantially all, of Lessee's assets are placed in the hands of
a receiver, trustee or assignee for the benefit of Lessee's
creditors, and such proceedings continue for at least thirty (30)
days;
CCSF 85.20A, 1\96 44
b. Any creditor of Lessee institutes judicial or
administrative process to execute on, attach or otherwise seize
any of Lessee's merchandise, Fixtures or Personal Property,
located on the Premises and Lessee fails to discharge, set aside,
exonerate by posting a bond, or otherwise obtain a release of
such property within thirty (30) days;
C. A petition is filed for an order of relief under
the Federal Bankruptcy Code or for an order or decree of
insolvency or reorganization or rearrangement under any state or
federal law, and is not dismissed within thirty (30) days;
d. Lessee makes a bulk sale of all, or substantially
all, of Lessee's merchandise, Fixtures or Personal Property
located on the Premises, except in accordance with the provisions
of Article 10 (IMPROVEMENTS; PERSONAL PROPERTY; FIXTURES; MINOR
ALTERATIONS) of this Lease, or except in connection with a
permitted assignment or subletting under this Lease, and fails to
replace the same with similar items of equal or greater value and
utility within three (3) days.
Any assignee pursuant to the provisions of any bankruptcy law
shall be deemed without further act to have assumed all of the
obligations of the Lessee under this Lease arising on or after
the date of such assignment. Any such assignee shall upon demand
execute and deliver to County an instrument confirming such
assumption.
19.2 Peauest for Information . Within ten (10) days after County's request therefor, Lessee shall provide County and any
mortgagee or proposed mortgagee of County, as County shall
specify, such financial, legal and business information
concerning any of the events described in this Article as County
shall request.
ARTICLE 20
DAM&GE OR DESTRUCTION
20.1 Insured Casualty. Should the Lessee's merchandise,
Fixtures, improvements or personal property be damaged by fire,
or other perils covered by the insurance Lessee is required to
carry under the terms of this Lease, Lessee shall undertake to
restore such merchandise, Fixtures, improvements or personal
CCSF 85.20A. 1\96 45
.
.
I
property to substantially the same condition as they were in
immediately preceding such damage or destruction. In the event
of a total destruction of the Premises so that the Premises are
rendered unusable, either party shall have the right to terminate
this Lease. If the parties to this Lease cannot agree upon the
extent and amount of such damage or destruction, County and
Lessee shall mutually agree to the prompt selection of a
certified architect, registered engineer, or licensed building
contractor who shall determine such matters, and the
determination of such architect, engineer, or contractor shall be
final and binding upon the parties to this Lease.
. . 20.2 Construction Provisiom . In the event of any
reconstruction of the Premises required of Lessee pursuant to
this Article, Lessee shall, to the extent of available insurance
proceeds, repair or rebuild such building and improvements to
substantially the same condition they were in immediately
preceding such damage or destruction.
20.3 Abatement of Rent. In the event of reconstruction by
Lessee pursuant to this Article, the Base Monthly Rent shall be
abated proportionately with the degree to which Lessee's use of
the Premises is impaired, commencing from the date of destruction
and continuing during the period of such reconstruction and
replacement specified in this Article; provided, however, that
such rent abatement shall not continue for a period of more than
one hundred eighty (180) days. Lessee shall continue the
operation of its business on the Premises during any such period
to the extent reasonably practicable from the standpoint of
prudent business management, and the obligation of Lessee to pay
Extra Rent shall remain in full force and effect. Lessee shall
not be entitled to any compensation or damages from County for
loss of use of the whole or any part of the Premises, the
building of which the Premises are a part, Lessee's Personal
Property, or any inconvenience or annoyance occasioned by such
damage, reconstruction or replacement. Lessee hereby waives any
statutory rights of termination which may arise by reason of any
partial or total destruction of the Premises which County is
obligated to restore or may restore under any of the provisions
of this Lease. In the event damage to the Premises is so slight
as not to interfere substantially with Lessee's use of the
Premises, there shall be no abatement of rent.
CCSF 05.201. 1\96 46
I *. 20.4 Release of J,labilitv . Upon any termination of this
Lease under any of the provisions of this Article, the parties
shall be released thereby without further obligation to the other
party coincident with the surrender of possession of the Premises
to County, except for items which have theretofore accrued and
are then unpaid. In the event of termination of this Lease under
this Article, all proceeds from Lessee's insurance, to the extent
necessary to reimburse County for its interests under the Lease,
shall be disbursed and paid to County. Monthly rent shall be
apportioned and paid to the time of termination.
20.5 Uninsured Casualtv . In the event the Premises are
damaged by any flood, earthquake, act of war, nuclear reaction,
nuclear radiation or radioactive contamination, or any other
casualty not covered by Lessee's insurance, Lessee shall have
the election, and shall within thirty (30) days following the
date of such damage give County written notice of Lessee's
election, either to commence reconstruction of the Premises and
prosecute the same diligently to completion, in which event this
Lease shall continue in full force and effect, or not to perform
such reconstruction of the Premises, in which event this Lease
shall cease and terminate upon Lessee's notice of its election to
terminate.
20.6 Maior Destructioq . Notwithstanding any of the
foregoing provisions of this Article to the contrary, in the
event that, at any time after the Effective Date, (I) the
Premises are damaged or destroyed to the extent of more than
twenty-five percent (25%) of their replacement cost, or (ii) the
damage is such that the Premises cannot be repaired and restored
within one hundred eighty (180) days after the casualty, then
County shall have the right to terminate this Lease upon thirty
(30) days' prior written notice to Lessee.
ARTICLE 21
EMINENT DOMAIN
21.1 Condemnation . If all of the Premises is taken under
eminent domain proceedings by a party other than County, or, if
less than all of the Premises is taken under such proceeding and
in the opinion of County's Lease Administrator the part taken
substantially impairs the ability of Lessee to use the remainder
of the Premises for the purposes permitted by this Lease, then
CCSF 85.20A, 1\96 47
either County or Lessee may terminate this Lease as of the date
that the condemning authority takes possession by delivery of
written notice of such election within twenty (20) days after
such party has been notified of the taking or, in the absence
thereof, within twenty (20) days after the condemning authority
shall have taken possession.
21.2 Contiution of J,ease After Condemnation . If this
Lease is not terminated by County or Lessee, it shall remain in
full force and effect as to any portion of the Premises
remaining, and:
a. This Lease will end as of the date possession of
the part is taken by the public entity as to the part of the
Premises that is taken;
b. Prepaid rent will be allocated in proportion to
the relationship that the compensation paid by the public entity
for the portion of the Premises condemned bears to the value of
the whole of the Premises as of the date possession of the part
is taken by the public entity;
C. Base Monthly Rent shall be reduced in proportion to
the relationship that the compensation paid by the public entity
for the portion of the Premises condemned bears to the value of
the whole of the Premises as of the date possession of the part
is taken by the public entity;
d. At its cost, Lessee shall restore so much of the
remaining portion of the Premises as is required to create a
reasonably sound architectural (or economically feasible) unit
substantially suitable for the purposes for which they were used
immediately before the taking, using good workmanship and new
first class materials, all in accordance with the requirements of
Article 10 (IMPROVEMENTS; PERSONAL PROPERTY; FIXTURES; MINOR
ALTERATIONS), above;
e. Upon the completion of restoration according to
clause (d), above, County will pay Lessee the lesser of (i) the
net award made to County on account of the taking (after
deducting from the total award attorneys' fees, appraisers' fees,
and other costs incurred in connection with obtaining the award)
or (ii) Lessee's actual out-of-pocket cost of restoring the
CCSF .95.20A, 1\96 48
Premises; and
f. County will keep any balance of the net award.
21.3 Ilessee's Award. In connection with any taking, Lessee
may prosecute its own claim by separate proceedings against the
condemning authority for damages legally due to it (such as the
loss of Fixtures that Lessee was entitled to remove and moving
expenses) only so long as Lessee's award does not diminish or
otherwise adversely affect County's award.
21.4 Allocation of Condemnation Award for a Total Takina of
the Premises. Ali awards for the total taking of the Premises or
proceeds from the sale made under the threat of the exercise of
the power of eminent domain shall be the property of County,
whether made as compensation for diminution of value of the
leasehold estate, for the taking of the fee, or as severance
damage; provided, however, that Lessee shall be entitled to any
award for (i) the value of Lessee-constructed improvements that
were made by Lessee during the Term of this Lease or pursuant to
the Settlement Agreement and were made with the prior approval of
the Assistant Deputy Director - Aviation, minus depreciation of
twenty percent (20%) per year from the Commencement Date, and
(ii) loss of or damage to Lessee's trade fixtures, and removable
personal property. Lessee's sublessee may also pursue a claim
for loss of goodwill. Notwithstanding the foregoing, any amount
of condemnation compensation due to Lessee pursuant hereto shall
go first, to County to satisfy (i) County's attorneys' fees,
appraisal fees, and other costs incurred in prosecuting the claim
for the award, (ii) County's lost rent and the value of the
reversion as of the ending date, and (iii) any financial
obligations of Lessee to County pursuant to the provisions of
this Lease, and second, to any creditors of Lessee to satisfy the
remaining balance of any due to such creditor from any County-
approved loan encumbering the Premises.
ARTICLE 22
SALE OR MORTGAGE BY COUNTY
22.1 Sale or Mortaaae . Subject to the provisions of
ARTICLE 3 (TERM 0F LEASE em FIRST RIGHT To PURCHASE THE
PREMISES), from and after the Effective Date, County may at any
time, without the consent of Lessee, sell, purchase, exchange,
CCSF 85.20A, 1\96 49
transfer, assign, lease, encumber or convey County's interest in
whole or in part, in the Lease, the Premises, the realty
underlying the Premises or any portion of or interest in the
realty or improvements on the Property (collectively referred to
in this Article as a llSaletl).
22.2 Release on Sale. From and after a Sale, County shall
be released from all liability toward Lessee and Lessee's
successors and assigns arising from this Lease because of any
act, occurrence or omission of County occurring after such Sale.
ARTICLE 23
SUBORDINATION; ATTORNMENT
23.1 Subordination . Without the necessity of any other
document being executed and delivered by Lessee, this Lease is
and shall be junior, subject and subordinate to any existing or
future permits or approvals issued by the United States of
America or any local, State or federal agency affecting the
control or operation of the Premises; Lessee shall be bound by
the terms and provisions of such permits or approvals. In
addition, this Lease is and shall also be subject, subordinate
and junior to all ground leases, mortgages, deeds of trust and
other security instruments of any kind now covering the Premises,
or any portion thereof.
23.2 At-torn-. In the event any proceedings are brought
for foreclosure, or in the event of the exercise of the power of
sale under any mortgage or deed of trust made by County covering
the Premises, Lessee shall attorn to the purchaser upon any such
foreclosure or sale and recognize such purchaser as landlord
under this Lease.
ARTICLE 24
COUNTY'S RIGHT OF ACCESS
a. County, its agents, employees, and contractors may
enter the Premises at any time in response to an emergency, and
at reasonable hours to (a) inspect the Premises, (b) determine
whether Lessee is complying with its obligations in this Lease
(including its obligations with respect to compliance with
Hazardous Materials Laws), (c) supply cleaning service and any
other service that this Lease requires County to provide, Cd)
CCSF 85.201, 1\96 50
post notices of nonresponsibility or similar notices, or (e) make
repairs that this Lease requires County to make, or make repairs
to any adjoining space or utility services, or make repairs,
alterations, or improvements to any other portion of the
Property; provided, however, that all work will be done as
promptly as reasonably possible and so as to cause as little
interference to Lessee as reasonably possible. County, its
agents, employees and contractors may enter the Premises with
twenty-four (24) hours' written notice to Lessee to exhibit the
Premises to prospective purchasers or lessees.
b. Lessee waives any claim of injury or inconvenience
to Lessee's business, interference with Lessee's business, loss
of occupancy or quiet enjoyment of the Premises, or any other
loss occasioned by such entry. If necessary, Lessee shall provide
County with keys to unlock all of the doors in the Premises
(excluding Lessee's vaults, safes, and similar areas designated
in writing by Lessee in advance) o County will have the right to
use any means that County may deem proper to open doors in the
Premises and to the Premises in an emergency. No entry to the
Premises by County by any means will be a forcible or unlawful
entry into the Premises or a detainer of the Premises or an
eviction, actual or constructive, of Lessee from the Premises, or
any part of the Premises, nor will the entry entitle Lessee to
damages or an abatement of rent or other charges that this Lease
requires Lessee to pay.
ARTICLE 25
QUIET ENJOYMENT
If Lessee is not in breach under the covenants made in this
Lease, County covenants that Lessee shall have peaceful and quiet
enjoyment of the Premises without hindrance on the part of
County. County will defend Lessee in the peaceful and quiet
enjoyment of the Premises against claims of all persons claiming
through or under the County.
ARTICLE 26
HOLDING OVER
If Lessee remains in possession of the Premises, for any
reason, after the expiration of the term of this Lease without
executing a new Lease, or after County has declared a forfeiture
CCSF 85.20A, 1\96 51
-
by reason of a default by Lessee, then such holding over shall be
construed as a tenancy from month to month, subject to all the
conditions, provisions and obligations of this Lease insofar as
they are applicable to a month-to-month tenancy. The Base
Monthly Rent payable during any period of holding over shall be
equal to one hundred twenty percent (120%) of the Base Monthly
Rent payable during the period immediately preceding Lessee's
holding over.
ARTICLE 27
NOTICES
27.1 Notices. Whenever in this Lease it shall be required
or permitted that notice or demand be given or served by either
party to this Lease to or on the other, such notice or demand
shall be in writing, mailed or delivered to the other party at
the addresses specified in Article 1 (SUMMARY OF BASIC LEASE
PROVISIONS). Mailed notices shall be sent by United States
Postal Service, certified or registered mail, postage prepaid and
shall be deemed to have been given, delivered and received three
(3) business days after the date such notice or other
communication is posted by the United States Postal Service. All
other such notices or other communications shall be deemed given,
delivered and received upon actual receipt. Either party may, by
written notice delivered pursuant to this provision, at any time
designate a different address to which notices shall be sent.
27.2 Default Notices . Notwithstanding anything to the
contrary contained within this Article, any notices County is
required or authorized to deliver to Lessee in order to advise
Lessee of alleged violations of Lessee's covenants under this
Lease must be in writing but shall be deemed to have been duly
given or served upon Lessee by County attempting to deliver at
the Premises during normal business hours a copy of such notice
to Lessee or its managing employee or by County mailing a copy of
such notice to Lessee in the manner specified in the preceding
Section.
ARTICLE 28
NONDISCRIMINATION
Lessee hereby covenants by and for itself, its successors,
assigns and all persons claiming under or through it, that this
CCSF 85.2OA. 1\96 52
Lease is made and accepted upon and subject to the condition that
there shall be no discrimination against, or segregation of, any
person or group of persons on account of race, color, creed,
religion, sex, marital status, national origin or ancestry in the
leasing, subleasing, transferring, use, occupancy, tenure or
enjoyment of the Premises, nor shall Lessee itself, or any person
claiming under or through it, establish or permit any such
practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of
tenants, lessees, sublessees, subtenants or vendees in the
Premises.
ARTICLE 29
AFFIRMATIVE ACTION PROGRAM
Lessee shall comply with the Affirmative Action Program for
Vendors as set forth in Article IIIk (commencing at Section 84)
of the San Diego County Administrative Code, which program is
incorporated in this Lease by this reference. Lessee is informed
that the County's Affirmative Action Program for Vendors provides
that its requirements shall not apply to any lessee, or
subcontractor of a lessee, who has a regular, paid workforce of
less than fifteen (15) employees. A copy of such Affirmative
Action Program for Vendors will be furnished to Lessee by
County's Lease Administrator upon request.
ARTICLE 30
WAIVER OF RELOCATION ASSISTANCE BENEFITS
30.1 Relocation Assistance Benefits. Lessee is hereby
informed and acknowledges the following:
a. By entering into this Lease and becoming a tenant
of County, Lessee may become entitled to receipt of l'relocation
assistance benefitsIt (IlRelocation Benefits") pursuant to the
Federal Uniform Relocation Assistance Act (42 U.S.C. §§ 4601
et seq.) and the California Relocation Assistance Law (Cal. Gov.
Code, §§ 7260 et seq.), or either of them (collectively, the ItRelocation StatutesIt), should County at some time make use of
the Premises in such a way as to "displaceIt Lessee from the
Premises. Pursuant to the Relocation Statutes, County may then
become obligated to make such payments to Lessee even where such
displacement of Lessee does not otherwise constitute a breach or
CCSF 85.2OA, 1\96 53
default by County of its obligations pursuant to this Lease.
b. Under the Relocation Statutes in effect as of the
Effective Date of this Lease, Relocation Benefits may include
payment to such a "displaced person" of (i) the actual and
reasonable expense of moving himself or herself and a family,
business, or farm operation, including personal property, (ii)
the actual direct loss of reestablishing a business or farm
operation, but not to exceed Ten Thousand Dollars ($lO,OOO), or
(iii) payment in lieu of moving expenses of not less than One
Thousand Dollars ($1,000) or more than Twenty Thousand Dollars
($20,000).
30.2 Ilessee's Waiver and Release of Relocation Benefits .
In consideration of County's agreement to enter into this Lease,
Lessee hereby waives any and all rights it may now have, or may
hereafter obtain, to Relocation Benefits arising out of the
County's lawful exercise of its contractual rights to terminate
this Lease pursuant to its terms, whether or not such rights are
contested by Lessee or any other entity, and releases County from
any liability for payment of such Relocation Benefits; provided,
however, that Lessee does not waive its rights to Relocation
Benefits to the extent that Lessee's entitlement thereto may
arise out of any condemnation or pre-condemnation actions taken
by the County or any other public agency with respect to the
Premises. Lessee shall in the future execute any further
documentation of the release and waiver provided hereby as County
may reasonably require.
ARTICLE 31
RECORDS, ACCOUNTS AND AUDITS
a. As required by AB 939 and by the Settlement
Agreement, Lessee shall, at all times during the term of this
Lease, keep or cause to be kept, true and complete books, records
and accounts of all of its business activities conducted on or
from the Premises, including, but not limited to financial
transactions and the source and disposition of all trash
collected and disposed of in the operation of the business.
b. All Lessee's books or accounts and records shall be
kept and made available at one location within the limits of the
County of San Diego. County shall have the right at any
CCSF 85.20A. 1\96 54
-
reasonable time to examine and perform audits of Lessee's records
pertaining to its operations on the Premises. The cost of said
audits shall be borne by County; however, Lessee shall provide to
County at Lessee's expense, necessary data to enable County to
fully comply with each and every requirement of the State of
California or by the United States of America for information or
reports relating to this Lease and to Lessee's use of the
Premises.
ARTICLE 32
GENERAL PROVISIONS
32.1 Authoritv . Lessee represents and warrants that it has
full power and authority to execute and fully perform its
obligations under this Lease pursuant to its governing
instruments, without the need for any further action, and that
the person(s) executing this Lease on behalf of Lessee are the
duly designated agents of Lessee and are authorized to do so.
32.2 Brokers. Lessee warrants that it has had no dealings
with any real estate broker or agent in connection with the
negotiation or execution of this Lease. In the event any broker
other than the brokers acknowledged in writing by County make
claim for monies owed, Lessee shall indemnify, defend and hold
County harmless therefrom.
32.3 Cautions. The captions, headings and index appearing
in this Lease are inserted for convenience only and in no way
define, limit, construe, or describe the scope or intent of the
provisions of this Lease.
32.4 Countv Awwroval. Except where stated in this Lease to
the contrary, the phrases ItCounty's approval," and "County's
written approvalIt or such similar phrases shall mean approval of
County's Lease Administrator or said Administrator's
representative as authorized by said administrator in writing.
32.5 Cumulative Remedjes . In the event of a default under
this Lease, each party's remedies shall be limited to those
remedies set forth in this Lease; any such remedies are
cumulative and not exclusive of any other remedies under this
Lease to which the non-defaulting party may be entitled.
CCSF 85.20A. 1\96 55
32.6 F.ntire Aareement, . This Lease, together with all
addenda, exhibits and riders attached hereto, constitutes the
entire agreement between the parties with respect to the subject
matter hereof, and all prior or contemporaneous agreements,
understandings and representations, oral or written, are
superseded.
I . 32.7 Fstowpel CertifJcate . Lessee shall at any time during
the term of this Lease, within five (5) business days of written
notice from County, execute and deliver to County a statement in
writing certifying that this Lease is unmodified and in full
force and effect or, if modified, stating the nature of such
modification. Lessee's statement shall include other details
requested by County, such as the date to which rent and other
charges are paid, Lessee's knowledge concerning any outstanding
defaults with respect to County's obligations under this Lease
and the nature of such defaults if they are claims. Any such
statement may be relied upon conclusively by any prospective
purchaser or encumbrancer of the Premises. Lessee's failure to
deliver such statements within such time shall be conclusive upon
Lessee that this Lease is in full force and effect, except to the
extent any modification has been represented by County, and that
there are no uncured defaults in the County's performance, and
that not more than one month's rent has been paid in advance.
32.8 Exhibits. All exhibits referred to in this Lease are
attached hereto and incorporated by reference.
32.9 Forcemieure . In the event either party is prevented
or delayed from performing any act or discharging any obligation
under this Lease, except for the payment of rent by Lessee,
because of any and all causes beyond either party's reasonable
control, including unusual delays in deliveries, abnormal adverse
weather conditions, unavoidable casualties, strikes, labor
disputes, inability to obtain labor, materials or equipment, acts
of God, governmental restrictions, regulations or controls, any
hostile government actions, civil commotion and fire or other
casualty, legal actions attacking the validity of this Lease or
the County's occupancy of the Premises, or any other casualties
beyond the reasonable control of either party except casualties
resulting from Lessee's negligent operation or maintenance of the
Premises ("Force Majeure"), performance of such act shall be
excused for the period of such delay, and the period for
CCSF 85.20A. 1\96 56
performance of such act shall be extended for a period equivalent
to the period of such delay. Force Majeure shall not include any
bankruptcy, insolvency, or other financial inability on the part
of either party hereto.
32.10 Governina Ilaw. This Lease shall be governed,
construed and enforced in accordance with the laws of the State
of California.
32.11 Interwretatia . The parties have each agreed to the
use of the particular language of the provisions of this Lease,
and any question of doubtful interpretation shall not be resolved
by any rule of interpretation providing for interpretation
against the parties who cause an uncertainty to exist or against
the draftsperson.
32.12 ’ Joint. If more than one person
or entity executes this Lease as Lessee, each of them is jointly
and severally liable for all of the obligations of Lessee under
this Lease.
32.13 muLease UnlstratiQn I . . . Lessee confirms that
Lessee's Lease Administrator has been given full operational
responsibility for compliance with the terms of this Lease.
Lessee shall provide County with a written schedule of its normal
hours of business operation on the Premises, and Lessee's Lease
Administrator or a representative designated thereby shall be (I)
available to County on a twenty-four (24) hour a day, seven (7)
days a week, basis, and (ii) present on the Premises during
Lessee's normal bL:ainess hours, to resolve problems or answer
question pertaining to this Lease and Lessee's operations on the
Premises.
32.14 Modification. The provisions of this Lease may not
be modified, except by a written instrument signed by both
parties.
32.15 Partial Invaliditv. If any provision of this Lease
is determined by a court of competent jurisdiction to be invalid
or unenforceable, the remainder of this Lease shall not be
affected thereby. Each provision shall be valid and enforceable
to the fullest extent permitted by law.
CCSF 85.20A, 1\96 57
32.16 Pavmem. Except as may otherwise be expressly
stated, each payment required to be made by Lessee shall be in
addition to and not in substitution for other payments to be made
by Lessee.
32.17 Successors & Assiam . This Lease shall be binding on
an inure to the benefit of the parties and their successors and
assigns, all of whom shall be jointly and severally liable under
this Lease, except as may otherwise be provided in this Lease.
32.18 Time of Essence . Time is of the essence of each and
every provision of this Lease.
32.19 Waiver. No provision of this Lease or the breach
thereof shall be deemed waived, except by written consent of the
party against whom the waiver is claimed. The waiver by County
of any breach of any term, covenant or condition contained in
this Lease shall not be deemed to be a waiver of such term,
covenant or condition of any subsequent breach thereof, or of any
other term, covenant or condition contained in this Lease.
County's subsequent acceptance of partial rent or performance by
Lessee shall not be deemed to be an accord and satisfaction or a
waiver of any preceding breach by Lessee of any term, covenant or
condition of this Lease or of any right of County to a forfeiture
of the Lease by reason of such breach, regardless of County's
knowledge of such preceding breach at the time of County's
acceptance. The failure on the part of County to require exact
or full and complete compliance with any of the covenants,
conditions of agreements of this Lease shall not be construed as
in any manner changing or waiving the terms of this Lease or as
estopping County from enforcing in full the provisions hereof.
No custom or practice which may arise or grow up between the
parties hereto in the course of administering this Lease shall be
construed to waive, estop or in any way lessen the right of
County to insist upon the full performance of, or compliance
with, any term, covenant or condition hereof by Lessee, or
construed to inhibit or prevent the rights of County to exercise
its rights with respect to any default, dereliction or breach of
this Lease by Lessee.
CCSF 85.20A, 1\96 58
IN WITNESS WHEREOF, the County and Lessee have duly executed this
Lease as of the day and year first above written.
LESSEE: COUNTY:
CITY OF CARLSBAD, COUNTY OF SAN DIEGO,
a political subdivision of the
State of California
Title: MAYOR
By: rti J.j?,,,\,
Clerk, Board of
Board of Supervisors
Attest:
LEE RAUTENKRANZ
Title: CITY CLERK
P , :‘~S”?? :ii-~d,‘:x scthor!ze-j by the Board
m:\pts\pts.v13 JOR 091797 1440hrs
CCSF 85.20A, 1\96 59
SOLID WASTE TRANSFER STATION
AT MCCLELLAN-PALOMAR AIRPORT
Parcel No. 97-0085-Al (05-30-97) (WAR:PET:dlg)
That portion of McClellan-Palomar Airport, in the City of Carlsbad, County of San Diego, State of
California, described in deed to the County of San Diego, recorded January 18, 1974 as File/Page No.
74014190 in the Office of the County Recorder of said County, described as follows:
BEGINNING at the most Southerly corner of land described in deed to the City of Carlsbad recorded
June 30, 1982 at File/Page No. 82-201566 in said County Recorder’s Office; thence along the
Southerly boundary of said Carlsbad land, North 78O42’04” West, 635.35 feet to a point on the
Easterly line of a 48.00 foot road and utility easement granted to said City of Carlsbad on said 1982
deed; thence along said Easterly line, South 11 O17’56” West, 519.92 feet to the beginning of a
tangent 326.00 foot radius curve, concave Easterly; thence Southerly, along the arc of said curve,
through a central angle of 54O45’22”, a distance of 311.55 feet; thence tangent to said curve South
43O27.26” East, 112.20 feet; thence leaving said Easterly line, North 51 O31’08” East, 235.72 feet;
thence ,North 61 O24’19” East, 355.40 feet; thence North 57O22’14” East, 246.04 feet to the
beginning of a tangent 50.00 foot radius curve concave Westerly; thence Northeasterly along the arc
of said curve, through a central angle of 88”35’04”, a distance of 77.30 feet: thence tangent to said
curve North 31 O12’50” West, 51.72 feet; thence North 53O37.13” West, 169.04 feet: thence North
4O55.29” East, 93.29 feet to the POINT OF BEGINNING. I.
NOTE
The northerly boundary of this parcel (97-0085-Al) is contiguous with the southerly boundary of
the parcel sold by the County of San Diego to the City of Carlsbad in 1982 (File/Page No. 82-
201566). This accounts for the constant variation of zero (0) degrees, thirty-eight (38) minutes
and thirty-three (33) seconds between the bearings in this legal description and the bearings on
the associated plat
503QQ341
EXHIBIT A
Page 1 of 2 Rev. 4May 30, 1997
: &i ’
I
1’ 3
I ,w .*I
I w -?I
: / / /
PARCEL 97-008%Al
10.975 ACRES
PARCEL
84-0127-A
5.128 AC.
IEPARTMENT OF GENERAL SERVlCES nm
REAL PRDPERTY DIMSION
COUNTY DF SAN DIEGO DRNNm? W.A.R.
SOLID WASTE TRANSFER STATION AT MCCLELLAN-PALOMAR AIRPORT
D*m 7/30/97
E*LL l’=ZOO’
SHEET No.
DF
PARCEL No.
97-0085-Al
‘_ EXHIBIT A vzaon 3 nF 3
EXHIBIT B
FEDERAL AVIATION ADMINISTRATION REQUIREMENTS
In the event there is any conflict between the provisions in this Exhibit and the other
provisions in this Lease, the provisions in this Exhibit shall take precedence.
a. Lessee for itself, its heirs, personal representatives, successors in interest, and assigns,
as a part of the consideration hereof, does hereby covenant and agree as a covenant running with
the land that in the event facilities are constructed, maintained, or otherwise operated on the said
property described in this Lease for a purpose for which a DOT program or activity is extended
or for another purpose involving the provision of similar services or benefits, Lessee shall main-
tain and operate such facilities and services in compliance with all other requirements imposed
pursuant to Title 49, Code of Federal Regulations, DOT, Subtitle A, Office of the Secretary, Part
2 1, Nondiscrimination in Federally-Assisted Programs of the Department of
Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations
may be amended.
b. Lessee for itself, its personal representatives, successors in interest, and assigns, as a
part of the consideration hereof, does hereby covenant and agree as a covenant running with the
land that: (1) no person on the grounds of race, color, or national origin shall be excluded from
participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of
said facilities, (2) that in the construction of any improvements on, over, or under such land and
the furnishing of services thereon, no person on the grounds of race, color, or national origin
shall be excluded from participation in, denied the benefits of, or otherwise be subject to discrim-
ination, (3) that Lessee shall use the Premises in compliance with all other requirements imposed
by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle
A, Office of the Secretary, Part 2 1, Nondiscrimination in Federally-Assisted Programs of the
Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as
said Regulations may be amended.
c. That in the event of breach of any of the above nondiscrimination covenants, County
shall have the right to terminate this Lease and to re-enter and repossess said land and the
facilities thereon, and hold the same as if said Lease had never been made or issued. This
provision does not become effective until the procedures of 49 CFR Part 21 are followed and
completed including expiration of appeal rights.
d. Lessee shall furnish its accommodations and/or services on a fair, equal and not
unjustly discriminatory basis to all users thereof and it shall charge fair, reasonable and not
unjustly discriminatory prices for each unit or service; PROVIDED, THAT Lessee may be
allowed to make reasonable and nondiscriminatory discounts, rebates or other similar type of
price reductions to volume purchasers.
e. Non-compliance with Provision d above shall constitute a material breach thereof and
in the event of such noncompliance County shall have the right to terminate this Lease and the
estate hereby created without liability therefore or at the election of County or the United States
either or both said Governments shall have the right to judicially enforce said Provisions.
f. Lessee agrees that it shall insert the above five (5) Provisions in any sublease, contract
or agreement by which said Lessee grants a right or privilege to any person, firm or corporation
to render accommodations and/or services to the public on the Premises herein leased.
g. Lessee assures that it will undertake an aflirmative action program as required by 14
CFR Part 152, Subpart E, to insure that no person shall on the grounds of race, creed, color,
national origin, or sex be excluded from participating in any employment activities covered in 14
CFR Part 152, Subpart E. Lessee assures that no person shall be excluded on these grounds from
participating in or receiving the services or benefits of any program or activity covered by this
subpart. Lessee assures that it will require that its covered suborganizations provide assurances
to Lessee that they similarly will undertake affirmative action programs and that they will require
assurances from their suborganizations, as required by 14 CFR Part 152, Subpart E, to the same
effect.
h. County reserves the right to further develop or improve the landing area of the Airport
as it sees fit, regardless of the desires or view of Lessee and without interference or hindrance.
i. County reserves the right, but shall not be obligated to Lessee, to maintain and keep in
repair the landing area of the Airport and all publicly-owned facilities of the Airport, together
with the right to direct and control all activities of Lessee in this regard.
j. This Lease shall be subordinate to the provisions and requirements of any existing or
future agreement between County and the United States, relative to the development, operation
or maintenance of the Airport.
k. There is hereby reserved to County, its successors and assigns, for the use and benefit
of the public, a right of flight for the passage of aircraft in the airspace above the surface of the
Premises herein leased. This public right of flight shall include the right to cause in said airspace
any noise inherent in the operation of any aircraft used for navigation or flight through the said
airspace or landing at, taking off from or operation on the Airport.
1. Lessee agrees to comply with the notification and review requirements covered in Part
77 of the Federal Aviation Regulations in the event future construction of a building is planned
for the leased Premises, or in the event of any planned modification or alteration of any present
or future building or structure situated on the leased Premises.
m. Lessee, by accepting this, expressly agrees for itself, its successors and assigns that it
will not erect nor permit the erection of any structure or object, nor permit the growth of any tree
on the land leased hereunder that conflicts with Part 77 of the Federal Aviation Regulations. In
the event the aforesaid covenants are breached, County reserves the right to enter upon the land
leased hereunder and to remove the offending structure or object and cut the offending tree, all of
which shall be at the expense of Lessee.
n. Lessee, by accepting this Lease, agrees for itself, its successors and assigns that it will
not make use of the leased Premises in any manner which might interfere with the landing and
taking off of aircraft from said Airport or otherwise constitute a hazard. In the event the
aforesaid covenant is breached, County reserves the right to enter upon the Premises hereby
leased and cause the abatement of such interference at the expense of Lessee.
O. It is understood and agreed that nothing herein contained shall be construed to grant or
authorize the granting of an exclusive right within the meaning of Section 308a of the Federal
Aviation Act of 1958 (49 U.S.C. 1349a).
p. This Lease and all the provisions hereof shall be subject to whatever right the United
States Government now has or in the future may have or acquire, affecting the control, operation,
regulation and taking over of said Airport or the exclusive or non-exclusive use of the Airport by
the United States during the time of war or national emergency.
m:\pts\pts.faa JOR 080497
EXHIBIT C
MCCLELLAN-PALOMAR AIRPORT
INDUSTRIAL AREAS
DEVELOPMENT STANDARDS
TABLE OF CONTENTS
1. LANDUSES .............................................................. 1
. AcceptedUses ........................................................... .
b. ProhibitedUses .......................................................... 1
2. CONDUCTOFUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..l
3. BUILDING SETBACKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4. BUILDING CONSTRUCTION ................................................ 1
a. Coverage ............................................................... .
b. Exterior Walls ........................................................... 1
5. HEIGHTLIMIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...2
6. MINIMUM DISTANCE BETWEEN BUILDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
7. MULTIPLE-OCCUPANCY BUILDINGS , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
8. REOUIRED SCREENING ................................................... .
a. Parking Areas ......................................................... ...2
b. Screening Types ......................................................... .
c. RoofTops .............................................................. .
9. HEIGHT OF FENCES. WALLS. AND PLANT MATERIAI,S ...................... .3
a. Fencesand Walls ......................................................... .
b. PlantMaterials ........................................................ ...3
10 OFF-STREET PARKING AND LOADING SPACE .............................. .3
a. Parking.. ............................................................... .
b. Loading Space ........................................................... .
c. Dimensions ............................................................. .
d. Location ............................................................. ...3
e. Improvement of Parking Spaces and Parking Areas ............................. .3
. MarkingofParkingSpaces ................................................. .
g. Parking Restrictions ...................................................... .4
11. ON-SITE CIRCULATION ................................................... 4
a. Ingress and Egress ....................................................... .4
b. Driveway Aprons ...................................................... ...4
c. Pedestrian Walkways.. .................................................... .
12.SIGNS ................................................................... .
. Identificationsigns ....................................................... .
b. Directional Signs ........................................................ .5
c. Safety Signs ............................................................. .
d. RealEstate Signs ......................................................... .
e. SignDesign ............................................................. .
13. TRASH COLLECTION AREAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . .5
14. LANDSCAPING .......................................................... .5
. RequiredLandscapedAreas ................................................ .
b. Landscaping Design ..................................................... .6
c. Irrigation ............................................................... .
15. OTHER REGUJ,ATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
MCCLELLAN-PALOMAR AIRPORT
INDUSTRIAL AREAS
DEVELOPMENT STANDARDS
1. LAND
a. Accented Uses. The following primary uses will be acceptable subject to approval of the
Assistant Deputy Director - Aviation and compliance with these development standards and the
performance standards specified for McClellan-Palomar Airport:
(1) Research and development uses.
(2) Industrial and manufacturing uses.
(3) Warehousing, storage, and wholesaling.
(4) Offices, services, sales activity, and other necessary buildings and uses appurtenant to
permitted uses specified in 1,2, and 3 above.
(5) Signs pertaining only to the use conducted within buildings or signs pertaining to the
sale or lease of the premises on which they are located in accordance with standards contained
herein.
(6) Off-street parking and loading, vehicular and pedestrian circulation, and landscaping
in accordance with standards specified herein.
(7) On the same leasehold or building site with a permitted industrial park use, one
dwelling unit occupied exclusively by a caretaker or superintendent of such use and his/her
family may be permitted upon approval of the Assistant Deputy Director - Aviation.
(8) Finance, insurance, real estate and business services, provided such services involve
primary emphasis on processing or production, to the exclusion of services rendered to customers
on the premises, to which end such offices shall be called process offices.
b. Prohibited Uses. Uses not falling into the above categories are not permitted unless
specifically set forth in the Lease.
2. CONDUCT OF USE All manufacturing operations shall be conducted within an enclosed
building. All storage shall be conducted within a totally enclosed building or enclosed by a six
(6) foot high or higher, view obscuring fence or wall. This fence shall not encroach into any
required exterior yard. No storage shall exceed the height of the wall or fence.
3. BUILDING SETBACKS. No building, structure (except a wall or landscape feature or
fence) shall at any time be erected or maintained on any site within twenty-five (25) feet from
any site boundary abutting any street.
4. BUILDING CONSTRUCTION.
a. Coverage. All buildings, including accessory buildings and structures, and all paved areas
shall not cover more than ninety percent (90%) of the net lot area.
b. Exterior Walls. Any building erected within the industrial park shall conform to the
following:
(1) Exterior walls shall be concrete or masonry except where specific approval is given
-l-
by the Assistant Deputy Director - Aviation for architecturally acceptable alternate materials and
design.
(2) Exterior walls shall be painted or treated in a manner acceptable to the Assistant
Deputy Director - Aviation.
5. HEIGHT LIMIT. No building or structure shall exceed two stories or 35 feet in height,
whichever is the lesser; provided, however, that buildings or structures located one hundred
(100) feet or more from any property line and exceeding 35 feet in height may be permitted upon
approval by the Assistant Deputy Director - Aviation.
6. mMUM DISTANCE BETWEEN BUILDINGS. There shall be a minimum ten (10) feet
between all buildings located on the same site.
7. JvfULTIPLE OCCUPANCY BUILDINGS. Multiple occupancy of buildings is permitted. In
case of multiple occupancy, off-street parking, off-street loading, outdoor trash facilities, and
on-site vehicular and pedestrian circulation systems must be shared in common; provided that
separate such facilities may be permitted by the Assistant Deputy Director - Aviation where
justified and when such provision does not otherwise deviate from the specifics and intent of
these development standards.
8. -SCREENING.
a. Parking Areas. Where parking space areas are located so as to be visible from a street,
there shall be a landscaped screen at least five (5) feet in width, planted with trees, shrubs,
ground cover, or combination of landscaping and aggregate materials that will significantly
soften the view of such areas. Such landscaping may be credited to the ten percent (10%)
requirement of Paragraph 14.
b. Screenin? Tvpes. Where screening is required herein it shall consist of one, or any
combination of the following types, in an aesthetically designed configuration.
(1) Walls: A wall shall consist of concrete, stone, brick, tile, or similar type of solid
masonry material a minimum of four inches thick.
(2) Berms: A berm shall consist of landscaped mounded earth designed in such a way as
to provide desired screening effect.
(3) Fences, solid: H solid fence shall be constructed of masonry.
(4) Fences, open: An open weave or mesh type fence shall be combined with plant
materials or view obscuring slats to form an opaque screen.
(5) Planting: Plant materials, when used as a screen, shall consist of compact evergreen
plants. They shall be of a kind, or used in such a manner, so as to provide screening having a
minimum thickness of two (2) feet within eighteen (18) months after initial installation.
c. Roof Tops. Roof top equipment such as HVAC units shall be screened from view from
both street level and above. To that end, all duct work and electrical conduits are to be run
underneath the roof surface. In addition, the equipment should be clustered and roof top color
shall be considered during the design of the buildings.
-2-
9. HEIGHT OF FENCES. WALLS. AND PLANTED MATERIALS
a. Fences and Walls. No decorative or screening fences or walls shall exceed the following
height limits above ground elevation:
(1) Within required front or side yard setback abutting a street: Forty-two (42) inches
except within five (5) feet of the intersection of a driveway and a street, a driveway and a
walkway, a driveway and parking area circulation aisle, or two (2) driveways in which cases the
height limit shall be thirty (30) inches.
(2) All other areas: Eight (8) feet, unless otherwise approved by the Assistant Deputy
Director - Aviation.
b. Plant Materials. Except where used as an opaque screen, plant materials may be
permitted at any height not constituting a hazard to operation of aircraft based on the judgment of
the Assistant Deputy Director - Aviation.
10. OFF-STREET PARKING AND J,OADING SPACE
a. Parking. All parking shall be designed to be provided at the ratio of one (1) off street
parking space per three hundred (300) square feet of gross floor area. If the proposed
development of the Premises is recognized as a standard warehouse or manufacturing use, paved
parking may be provided at the ratio of one space per six hundred (600) square feet. However,
the remainder of the land area necessary to provide an ultimate parking ratio of one (1) space per
three hundred (300) square feet of gross floor must be available for future parking expansion.
This area may be made a part of the landscaped area of the Premises until such time as the
additional parking is needed, however it will not be considered as part of the required 10%
landscaping coverage outlined in Clause 14. (LANDSCAPING) below.
b. Loading Space. All buildings with a gross floor area greater than one thousand (1,000)
square feet shall be served with a loading area with minimum dimension of twenty (20) feet by
twenty (20) feet. One (1) additional loading area shall be provided for buildings with a gross
floor area exceeding twelve thousand (12,000) square feet. Loading areas shall not be placed in
any required yard areas or parking spaces.
c. Dimensions. Each parking space shall be a minimum of nine (9) feet wide and twenty
(20) feet deep.
d. Location, All parking and loading spaces shall be on the same leasehold Premises with
the building or structures they are to serve.
e. Imnrovement of Parking: Snaces and Parking Areas.
(1) All parking spaces or areas, loading berths, approaches, and driveways shall be
adequate for anticipated wheel loads, with a structural section designed by a soils engineer, and
constructed of Portland Cement Concrete over a base course of adequate stability.
(2) All parking spaces abutting the perimeter of the property shall be provided with
securely installed concrete wheel barriers or concrete curbs not less than four (4) inches in
height.
f. Marking: of Parking Spaces. The location of each parking space shall be identified and
maintained by permanent surface markings.
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g. Parking Restrictim. On street parking within the Industrial Park shall conform with the
current City of Carlsbad Code.
11. ON-SITE CIRCUJ,ATION
a. -and-.
(1) On-site driveways shall be located so as to serve multiple purposes such as parking
and loading areas wherever possible.
(2) On-site driveways shall have an unobstructed paved surface minimum width of not
less than fifteen (15) feet per one-way drive, or twenty-four (24) feet for two-way drive.
(3) Parking, loading areas, and driveways shall be arranged to permit vehicular traffic to
move into and out of parking and loading areas, driveways, and ramps without the backing of
any vehicle onto a street.
(4) Unobstructed and adequate maneuvering aisles or turn-around areas shall be provided
as necessary to insure that all vehicles shall enter the street or highway in a forward manner.
(5) Parking areas, driveways, maneuvering aisles, ramps, and turn-around areas shall be
kept free and clear of obstructions at all times.
b. Driveway Aprom. All driveway aprons will be installed concurrently with individual site
development and shall be commercial driveways of Portland cement concrete, six (6) inches
thick from curb to right-of-way line with minimum width of fifteen (15) feet at the curb line for
one-way traffic and thirty (30) feet for two-way traffic according to Standard Drawing G- 16.
Where driveway aprons will serve semi-trailers, they shall be no less than twenty-four (24) feet
and thirty-six (36) feet respectively, and may be constructed as alley aprons with appropriate
curb returns. . c. Pedestrian Walkwavs . Easily accessible and adequate pedestrian walkways consisting of
concrete, decorative gravel, paving blocks, or other aesthetically pleasing materials shall be
provided.
12. SIGNS
a. titification Sim. Not more than two (2) signs identifying the name and address of
the occupant and the products, activities or facilities located on the Premises are permitted for
each Premises except as hereinafter specified.
(1) One (1) such sign may be a single-face sign mounted on and parallel to a wall of the
main building. Such sign shall be proportional to the size of the building wall upon which it is
mounted but shall not exceed an area of forty-eight (48) square feet. Such a sign may not extend
above the top of the parapet wall, the roof line at the wall, the eaves of the building, or portion of
the building to which attached, whichever is applicable; nor shall the sign face protrude more
than eighteen (18) inches from the face of the wall upon which it is mounted. One such sign may
be a single- or double-faced monument or free-standing sign, integrated with a landscape
arrangement and located not closer than ten (10) feet to the front property line. The size of such
sign shall be proportional to the building site frontage but not exceeding an area of sixty (60)
square feet per face nor an overall height of eight (8) feet above the average ground elevation
directly beneath the sign.
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(2) Roof-mounted and pole signs are not permitted, except that a sloping roof, the slope
of which varies no more than forty-five (45) degrees from a vertical plane, shall be considered
wall space for the purpose of placement of wall signs.
(3) More than one wall sign may be permitted only under the following circumstances:
(a) Where a building site abuts more than one street, one wall sign may be allowed
facing each street, provided the combined area of all such signs shall not exceed seventy-two
(72) square feet.
(b) In the case of multiple occupancy of the same Premises consisting of four or
fewer establishments, each may have one (1) single- faced wall sign not exceeding an area of
thirty (30) square feet; for five (5) or more establishments, each may have one (1) single-faced
wall sign not exceeding an area of twenty-five (25) square feet. Said signs shall be in lieu of, not
in addition to, the single wall sign per Premise otherwise specified herein.
b. Directional Siw. Directional signs may be single or double face and are limited to
informational signs identifying facilities by category and/or function only. They may not exceed
eight (8) square feet per face or overall height of eight (8) feet above grade.
c. Safetv Signs. Safety signs alert the passersby on the site to potential dangers and include
Stop, Slow, Curve, Danger, High Voltage, etc. The shape and color of safety signs shall be of
the same size shape and color as contained in the current edition of the Manual on Uniform
Traffic Control Devices for Streets and Highways as printed by the Bureau of Public Roads, U.S.
Department of Commerce.
d. Real Estate Signs. One single or double-faced real estate sign not exceeding twelve (12)
square feet per face giving information on the construction, sale or lease of the buildings,
property or premises upon which it is displayed shall be permitted. No such sign shall be
permitted more than ninety (90) days prior to nor ten (10) days after such space is available for
lease or sale.
e. Sian Desig. Identification signs must be designed so as to provide uniformity of layout,
lettering, graphics, size, shape, color, method of installation and construction. The location and
design of all identification signs shall be subject to the written approval of the Assistant Deputy
Director - Aviation. No sign of any type shall be installed without the prior written approval of
the Assistant Deputy Director - Aviation.
13. TRASH COLLECTION AREAS. All trash collection areas shall be located outside of areas
required to be devoted to landscaping and shall be enclosed by a wall and heavy duty solid gates
not less than six (6) feet in height. Portland cement concrete floors and aprons are required in
trash collection areas.
14. LANDSCAPING.
a. Reauired Landscaning Areas. Landscaping plans shall be required and submitted for
approval of the Assistant Deputy Director - Aviation. All exterior yards, except for driveways
shall be landscaped and maintained, however, in no event shall the total landscaped area be less
than ten percent (10%) of the gross lot area. All areas not in a driveway or sidewalk between
street curb and the property line shall be landscaped and maintained by Lessee and may be
-5-
included in the above mentioned ten percent on-site requirement.
b. LandscaDing Desim.
(1) Coverage: At least seventy-five percent (75%) of the surface landscaped shall be
planted with a compatible combination of trees, shrubs, vines, flowers or ornamental ground
cover. The remainder may include features such as pedestrian walkways, rock groupings,
sculptures, pools, fountains, outdoor seating areas, decorative paving, and gravel areas,
interspersed with planting areas.
(2) Spacing: Plant material spacing shall conform to the following standards: A
minimum of twenty-five (25) feet from the back of sidewalk at street intersections to the center
of the fast tree or the center of the first large shrub ten feet in height or more at maturity.
c. Irrigation. Prior to commencing any use of the property, required landscaped areas shall
be planted and a permanent type sprinkler system or similar watering system or device, adequate
to provide water necessary to properly maintain the particular plant materials used, shall be
constructed and thereafter maintained in good working order.
15. OTHER REGULATIONS. In addition to the provisions of these Development Standards, all
development on the Premises shall conform to the standards specified by the applicable Federal
Aviation Administration Regulations, laws of the State of California, the Carlsbad Municipal
Code and those ordinances and policies promulgated by the Board of Supervisors which regulate
the administration, land use, construction, and development of County Airports.
In the event there is any conflict between these Development Standards and the regulations, laws,
and/or ordinances of the above mentioned agencies, the most restrictive shall apply.
m:\pts\pts.ind JOR 080597
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EXHIBIT D
1.
2.
3.
4.
5.
6.
7.
a.
9.
10.
INDUSTRIAJl AND AVIATION =JWi
PERFORMANCE SDMDS
NOISE .............
a. Standards .......
b. Method of Measurement .
C. Sound Level ......
d. Aircraft Engine Runups .
e. Exemptions .......
&f&E ...........
a. Standards .......
b. Prohibitions ......
a. Standards . . . . . .
b. Method of Measurement
VIBRATION . . . . . . . .
a. Standards . . . . . .
b. Method of Measurement
TOXIC MATTm . . . . . . .
a. Standards . . . . . .
b. Method of Measurement
PDOR . . . . . . . . . . .
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SMOKE. PARTICUJATE MATTER ANn OTBER AIR CON-
JIIOUID WASTES ....................
a. Standards ...................
b. Prohibitions ..................
D EXPJIOSIVE HA7m .............
=R REGUJIATIONS ..................
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MCCJ~EI~TAN-PAJOMAR AIRPORT USTRIAT, AND AVIATION'AREU
PRRFORWUCE STANJMRDS
1. NOISF,.
a. St-. At no point on or beyond the boundary of the
leasehold Premises shall the maximum sound level resulting from any
operation, activity or use exceed Leq(h) = 70 dB for continuous
noise. If the measured ambient level exceeds the applicable limit
noted above, the allowable one hour average sound level shall be
the ambient noise level. The ambient noise level shall be measured
when the alleged noise violation source is not operating.
b. Method of Measurement. Noise shall be measured with a
sound level meter having an A-weighted filter constructed in
accordance with specifications of the American National Standards
Institute for type S-2A general purpose sound level meters.
(1) Impact noise shall be measured using the fast
response of the sound level meter. Impact noises are intermittent
sounds such as from a punch press or drop-forge hammer.
(2) Continuous noise shall be measured using the slow
response of the sound level meter.
c. Sound . Sound level shall mean the
weighted sound pressure level obtained by the use of a sound level
meter and frequency weighting network as specified in American
National Standards Institute specifications for sound level meters
(ANSI.4-1971, or the latest revision thereof). If the frequency
weighting employed is not indicated, the A-weighting is implied.
d. waft Engine Runuz, . Lessee shall restrict aircraft
engine tests and maintenance runups performed on the leasehold
Premises to idle power settings. Lessee shall restrict aircraft
tests and maintenance runups at greater than power settings to
locations on the Airport and during the time of day authorized in
writing by the Assistant Deputy Director - Aviation.
e. Bxemntlons. The following sources of noise are exempt
from the specified maximum sound level:
(1) Transportation vehicles not under the control of
Lessee;
(2) Occasionally used safety signals, warning devices,
and emergency pressure relief valves; and
(3) Temporary construction activity between 7:00 a.m.
and 7:00 p.m.
2. GJIARE.
a. Stan-. All light fixtures or light sources shall be
installed or used so as to comply with the rules and regulations of
the Federal Aviation Administration or any successor agencies and
other governmental agencies governing height, type and placement of
lights as they may affect the safety of aircraft operations into,
from and around the Airport. In addition:
(1) All outdoor lighting installed shall utilize low
pressure sodium lamps and be shielded from above in such a manner
that the edge of the shield shall be level with or below the center
of the light source.
(2) All light fixtures shall be designed and adjusted so
as to reflect light downward, away from any other premises.
(3) Any operation, activity, or use producing intense
glare shall be conducted within an enclosed or screened area in
such a manner that the glare emitted will not be discernible at any
point on or beyond the boundary of the leasehold Premises.
b. Prohibitions. The use of floodlights on vertical or
horizontal surfaces, searchlights, and red, blue, or green lights
shall be prohibited; provided, however, red, green and blue lights
are permitted where required by FAA regulations as necessary for
the safety of aircraft operations.
3. FTWCTROMAGNETIC INTERFWNCF, .
a. wdards. At no point on or beyond the boundary of the
leasehold Premises shall the electromagnetic interference resulting
from any operation, activity or use of equipment not licensed by
the Federal Communications Commission for communications or
navigational purposes exceed the maximum permitted values tabulated
below:
Section of Maximum Field Strength
Electromagnetic Spectrum at Edge of Premises
from-to I * Contwa Interference Source
10 - 100 Kilocycles 500 Microvolt/Meter
100 - 535 Kilocycles 300 Microvolt/Meter
535 - 1605 Kilocycles 200 Microvolt/Meter
1605 Kc.- 44 Megacycles 200 Microvolt/Meter
44 - 88 Megacycles 150 Microvolt/Meter
88 - 174 Megacycles 200 Microvolt/Meter
174 - 216 Megacycles 150 Microvolt/Meter
216 - 580 Megacycles 250 Microvolt/Meter 580 - 920 Megacycles 300 Microvolt/Meter
920 - 30,000 Megacycles 2000 Microvolt/Meter
Irrespective of the above standards, any electromagnetic
disturbance that causes interference with radio transmissions,
aircraft instruments, navigational aids, or other electromagnetic
receptors essential to aircraft operations shall be modified or
abated upon request of the Assistant Deputy Director - Aviation.
b. Method of Measuemea . The level of radiated
electromagnetic interference shall be measured by using standard
field strength measuring techniques. The maximum value of the
tabulation shall be considered as having been exceeded if at any
frequency in the section of the spectrum being measured, the
measured field strength exceeds the maximum value tabulated for
this spectrum section.
4. -TIOq.
a. Standards. At no point on or beyond the boundary of the
leasehold Premises shall the maximum particle velocity resulting
from any operation, or activity or use exceed 0 .lO inches per
second for steady-rate vibrations and 0.20 inches per second for
impact vibrations.
b. Method of Measureme&. Vibration shall be measured with
a seismograph or complement of instruments capable of recording
vibration displacement and frequency or particle velocity
simultaneously in three mutually perpendicular directions. When
particle velocity is computed on the basis of displacement and
frequency, the following formula shall be used:
P.V. = 6.28 F X D
P.V. = Particle velocity, inches per second
F = Vibration frequency, cycles per second
D = Single amplitude displacement of the vibration, inches
The maximum particle velocity shall be the maximum vector sum
of the three mutually perpendicular components recorded
simultaneously.
(1) Steady-rate vibrations are vibrations which are
continuous or vibrations in discrete impulses occurring 100 or more
times per minute.
(2) Impact vibrations are vibrations in discrete
impulses occurring less than 100 times per minute.
5.3XIcm.
a. Standards. At no point on or beyond the boundary of the
3
leasehold Premises shall the release of any airborne toxic matter
resulting from any operation, activity or use exceed 3.0 percent of
the Threshold Limit Value; provided, however, if a toxic substance
does not have an established Threshold Limit Value, Lessee shall
satisfy the County Department of Public Health that the proposed
levels will be safe to the general population.
b. Method of Measureme& . The maximum concentration is
given as a fractional amount of the ACGIH Threshold Limit Value
which is the maximum concentration permitted an industrial worker
for eight hours exposure per day, five days a week, as adopted by
the American Conference of Governmental Industrial Hygienists
(ACGIH). Toxic matter shall be measured at ground level or
habitable elevation using ACGIH or ASTM methods and shall be the
average of any 24-hour sampling period.
6. QDOR. At no point on or beyond the boundary of the leasehold
Premises shall any odorous gases or other odorous matter resulting
from any operation, activity or use be detectable.
7. SMOKE, PART{ AIR CONT-ANTS . All
operations, activities, and uses shall be conducted so as to comply
with the rules and regulations of the San Diego County Air
Pollution Control District governing smoke, particulate matter, and
other air contaminants.
8. L-WASTES. a. Stan-. All operations, activities, and uses shall
be conducted so as to comply with the rules and regulations of the
State of California Water Quality Control Board - San Diego Region
and the County San Diego.
b. Prohibitions. The discharge of any toxic or waste
material onto the ground, into any drainage channel, or the
discharge of any toxic material into any on-site leaching system
shall be prohibited.
9. FIRE AND FaPJ,OSIVE HAZARDS . All operations, activities, and
uses shall be conducted so as to comply with the rules and
regulations of the applicable fire protection agency and the
Uniform Fire Code governing fire and explosive hazards.
10. OTHER REGULATIONS . In addition to the provisions of these
Performance Standards, all operations on the Premises shall conform
to the standards specified by the applicable Federal Aviation
4
Administration Regulations, laws of the State of California and the
applicable local ordinances which regulate land use and operations.
In the event of a conflict between these Performance Standards and
various applicable laws, ordinances and regulations, the most
restrictive shall apply.
m:\pts\pts.per JOR 080597
EXHIBIT E
INSURANCE REQUIREMENTS
Without limiting Lessee's indemnification obligations to County,
Lessee shall provide and maintain, during the Term and for such
other period as may be required by the provisions of this exhibit
("Insurance Exhibit") or the Lease, at its sole expense,
insurance in the amounts and form specified in this Insurance
Exhibit.
A. tiabilitv Ince . Lessee shall procure either
Comprehensive General Liability insurance or Commercial General
Liability insurance applying to its use and occupancy of the
Premises, or any part thereof, or any areas adjacent thereto, and
the business operated by Lessee or any other occupant on the
Premises, in the amounts and form set forth below:
m . . (1) !Zomprehensive General Iliability 1~ . A policy of
Comprehensive General Liability Insurance which provides limits
of
(a) Combined Single Limit per occurrence: $2,000,000
(b) Fire Damage Limit (Any One Fire) : $ 500,000
(c) Medical Expense (Any One Person): $ 5,000
(2) I .a Commercial General J,iutv Insurance . A policy of
Commercial General Liability Insurance which provides limits of:
(a) Per Occurrence: $2,000,000
(b) Location Specific Aggregate: $2,000,000
(c) Products/Completed Operations: $2,000,000
(d) Personal & Advertising Injury limit: $2,000,000
(e) Fire Damage Limit (Any One Fire) : $ 500,000
(f) Medical Expense Limit (Any One Person) : $ 5,000
(3) WiredLiabilitv Policv Coveracre. Any liability
policy provided by Lessee under this Insurance Exhibit shall
contain the following coverage:
(a) Premises and Operations
(b) Products/Completed Operations
(c) Contractual Liability expressly including
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liability assumed under this Lease.
(d) Personal Injury Liability
(e) Independent Contractors' Liability
(f) Severability of Interest clause providing that the
coverage applies separately to each insured, except with respect
to the limits of liability, and that an act or omission by one of
the named insureds shall not reduce or avoid coverage to the
other named insureds.
(4) Additional . Any general liability
policy provided by Lessee under this Insurance Exhibit shall
contain an endorsement which applies its coverage to the County,
the members of the Board of Supervisors of the County, and the
officers, agents, employees and volunteers of the County,
individually and collectively, as additional insureds.
(5) BAntry Insurance Endorsement . The coverage afforded
by the additional insured endorsement described above shall apply
as primary insurance, and any other insurance maintained by the
County, the members of the Board of Supervisors of the County, or
its officers, agents, employees and volunteers, or any County
self-funded program, shall be excess only and not contributing
with such coverage.
* .a . . (6) Formof~labll~tySurance Pohxes . All liability
policies shall be written to apply to all bodily injury,
including death, property damage, personal injury and other
covered loss, however occasioned, occurring during the policy
term, and shall specifically insure the performance by Lessee of
that part of the indemnity agreement contained in this Lease
relating to liability for injury to or death of persons and
damage to property. If the coverage contains one or more
aggregate limits, a minimum of 50% of any such aggregate limit
must remain available at all times; if over 50% of any aggregate
limit has been paid or reserved, County may require additional
coverage to be purchased by Lessee to restore the required
limits. Lessee may combine primary, umbrella and as broad as
possible excess liability coverage to achieve the total limits
indicated above. Any umbrella or excess liability policy shall
include the Additional Insured Endorsement described below.
B. ce A standard fire policy including
all-risk or special form perils, in an amount of ninety percent
90% of the full replacement cost of the Building and
Improvements, without deduction for depreciation, including costs
of demolition and debris removal. Such policy or policies of
insurance shall include coverage for (I) Lessee's merchandise,
(ii) fixtures owned by Lessee, (iii) any items identified in this
Lease as improvements to the Premises constructed or owned either
by County or Lessee, and (iv) the personal property of Lessee,
its agents and employees.
(1) Peductjble The deductible for the required fire
insurance policy shall not exceed $10,000 per occurrence and
shall be borne by Lessee.
(2) R&&al Income Ins- Lessee shall, at its sole
cost and expense, maintain rental income insurance which shall
assure County of receiving the minimum monthly rent from the time
the Premises are damaged or destroyed by a risk insured against
by the standard fire policy including all-risk or special form
perils, until such time as they are returned to a tenantable
condition, with a minimum period of coverage of one (1) year.
(3) J,oss Pavee The required fire insurance policy shall
name County of San Diego as Loss Payee.
(4) Proceeds of Insurance. In the event of damage or
destruction to the Premises covered by the fire or physical
hazard insurance required of Lessee under this Insurance Exhibit,
the proceeds of such insurance shall be allocated as follows:
(a) Proceeds from any or all of said insurance
policies shall be payable, first, to the holder of any mortgage
or deed of trust permitted under this Lease to the extent
required by said mortgage or deed of trust;
(b) Any balance remaining after application of
insurance proceeds in the manner indicated in subparagraph (a),
above, shall be credited to Lessee. If Lessee, or County, is
required to rebuild or restore the Premises pursuant to the
provisions of this Lease, the amount of insurance proceeds
credited to Lessee shall be impounded with an independent
depository acceptable to County in accordance with a rider to the
insurance policy setting forth this procedure, to be disbursed to
pay, to the extent such portion of proceeds may be sufficient,
Lessee's obligations to repair and restore the Premises pursuant
to the provisions of this Lease;
(c) In the event that, after paying all of the costs
and expenses of repair and restoration referenced in subparagraph
(b), above, any balance of insurance proceeds remains, it shall
be retained by Lessee. Should it be anticipated that the
proceeds of insurance to be received by Lessee will be
insufficient to repair or restore the Premises as required by
this Lease, Lessee shall have the option to either (I) terminate
this Lease and turn over all insurance proceeds from the impound
account to County, or (ii) repair or restore the Premises as
required under this Lease using the available insurance proceeds,
with any shortfall in the amount necessary to repair or restore
the Premises being contributed, in cash, by Lessee. (See,
Section 20.5 (UNINSURED CASUALTY) under Article 20 (DAMAGE OR
DESTRUCTION).
(d) Notwithstanding any provision of the foregoing to
the contrary, upon any termination of this Lease all proceeds
from Lessee's insurance, but excluding such proceeds attributable
to damages sustained by Lessee's merchandise or personal
property, shall be disbursed and paid to County.
C.
Insurance. Lessee shall procure Comprehensive
Automobile/Aircraft/Watercraft Liability Insurance, applying to
its use and occupancy of the Premises and the business operated
by Lessee or any other occupant on the Premises. Such policy
shall be written for bodily injury, including death, and property
damage, however occasioned, occurring during the policy term, in
the amount of not less than One Million Dollars ($l,OOO,OOO),
combined single limit per occurrence, applicable to all owned,
non-owned and hired vehicles/aircraft/watercraft.
Notwithstanding any provision of the foregoing to the contrary,
however, such coverage may be waived in writing by County if it
determines there is no significant exposure to these risks.
D. Ptatutorv Wor ersl . . . omgendation and EmQloverls JllablJity
-. Lessee shall provide the statutory amount of workers'
compensation insurance, with a broad form all-states endorsement,
and with employer's liability coverage of no less than Three
Million Dollars ($3,000,000) per occurrence for all employees
engaged in services or operations under this Lease. Lessee shall
also provide U.S. Longshoremens' and Harbor Workers' Act
coverage, when applicable.
E. 6 . General Prov1sionS .
(1) Certificates of Irxaaxance . Lessee shall, as soon as
practicable following the placement of insurance required by this
Insurance Exhibit, but in no event later than ten (10) days prior
to the Commencement Date, deliver to County certified copies of
the actual insurance policies specified by this Insurance
Exhibit, or certificates evidencing the same, together with
appropriate separate endorsements thereto, evidencing that Lessee
has obtained such coverage for the period of the Lease.
Thereafter, copies of renewal policies, or certificates and
appropriate separate endorsements thereof, shall be delivered to
County within thirty (30) days prior to the expiration of the
term of any policy required by this Insurance Exhibit. Lessee
shall permit County at all reasonable times to inspect any
policies of insurance of Lessee which Lessee has not delivered to
County.
(2) Claims Made Coverage . If coverage is written on a
"claims made" basis, the Certificate of Insurance shall clearly
state so. In addition to the coverage requirements specified
above, such policy shall provide that:
(a) The policy retroactive date coincides with or
precedes Lessee's possession of the Premises (including
subsequent policies purchased as renewals or replacements).
(b) Lessee will make every effort to maintain similar
insurance during the required extended period of coverage
following expiration of the Lease, including the requirement of
adding all additional insureds.
(cl If insurance is terminated for any reason, Lessee
shall purchase an extended reporting provision of at least two
years to report claims arising in connection with the Lease.
(d) The policy allows for reporting of circumstances
or incidents that might give rise to future claims.
(3) Failure to Obtain or Maintain Insurance. . Countv s I
Remedies . Lessee's failure to procure the insurance specified by
this Insurance Exhibit, or failure to deliver certified copies or
appropriate certificates of such insurance, or failure to make
the premium payments required by such insurance, shall constitute
a material breach of the Lease, and County may, at its option,
terminate the Lease for any such default by Lessee.
(4) Do Jai-on of Obl&atioas . The foregoing
requirements as to the types and limits of insurance coverage to
be maintained by Lessee, and any approval of said insurance by
the County or its insurance consultant(s), are not intended to
and shall not in any manner limit or qualify the liabilities and
obligations otherwise assumed by Lessee pursuant to the
Agreement, including, but not limited to, the provisions
concerning indemnification.
(5) Notice of Cancellation or Change of Coverage . All
certificates of insurance provided by Lessee must evidence that
the insurer providing the policy will give County thirty (30)
days' written notice, at the address shown in the Section of this
Lease entitled "Notices,ll below, in advance of any cancellation,
lapse, reduction or other adverse change respecting such
insurance.
(6) mlifmrer~ . All policies of insurance
required hereby shall be issued by companies which have been
approved to do business in the State of California by the State
Department of Insurance, and which hold a current policy holder's
alphabetic and financial size category rating of not less than A,
VII according to the current Best's Key Rating Guide, or a
company of equal financial stability that is approved in writing
by County's Risk Manager.
(7) Review of Coveraae . County shall retain the right at
any time to review the coverage, form and amount of insurance
required by this Insurance Exhibit and may require Lessee to
obtain insurance reasonably sufficient in coverage, form and
amount to provide adequate protection against the kind and extent
of risk which exists at the time a change in insurance is
required.
(8) Self-Insurance . Lessee may, with the prior written
consent of County's Risk Manager, fulfil1 some or all or the
insurance requirements contained in this Lease under a plan of
self-insurance. Lessee shall only be permitted to utilize such
self-insurance, however, if, in the opinion of County's Risk
Manager, Lessee's (I) net worth, and (ii) reserves for payment of
claims of liability against Lessee, are sufficient to adequately
compensate for the lack of other insurance coverage required by
this Lease. Lessee's utilization of self-insurance shall not in
any way limit liabilities assumed by Lessee under this Lease.
(9) publessees' Insurance . Lessee shall require any
sublessee, and any sub-sublessee, of all or any portion of the
Premises to provide the insurance coverage described in this
Insurance Exhibit prior to occupancy of the Premises.
(10) Waiver of Subrocation . Lessee and County waive all
rights to recover against each other or against any other tenant
or occupant of the building, or against the officers, directors,
shareholders, partners, employees, agents or invitees of each
other or of any other occupant or tenant of the building, from
any Claims [as defined in the Article 13 (INDEMNITY AND
INSURANCE], against either of them and from any damages to the
fixtures, personal property, Lessee's improvements, and
alterations of either County or Lessee in or on the Premises, to
the extent that the proceeds received from any insurance carried
by either County or Lessee, other than proceeds from any program
of self-insurance, covers any such Claim or damage. Included in
any policy or policies of insurance provided by Lessee under this
Insurance Exhibit shall be a standard waiver of rights of
subrogation against County by the insurance company issuing said
policy or policies.
m:\pts\pts.ins JOR 080597
EXHIBIT F
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MCCLELLAN-PALOMAR AIRPORT
County Required Sublease Provisions
The Sublessor may draft its own Sublease form. The following paragraphs must appear in the
Sublease. Paragraphs marked with an asterisk (*) must be used exactly as written. The Sublease must
be submitted to the Assistant Deputy Director Aviation with the Sublease Processing Fee, a to
occupancy by Sublessee.
1. This Sublease is entered into by and between the City of Carlsbad, a municipal Parties.
corporation, hereinafter called “Sublessor”, and w
hereinafter called “Sublessee”, as a Sublease under the Master Lease dated
19 , also known as County of San Diego Contract No. . Sublessor, under this Sublease,
Lessee and County of San Diego is Lessor under said Master Lease.
2. Premises. Sublessor leases to Sublessee and Sublessee hires the following described Premises
together with the appurtenances, situated in the City of Carlsbad, State of California:
. Said Premises are shown on Exhibit “A”, attached hereto.
3. Term. The term of this Sublease Agreement shall be for
commencing 919 , and terminating 919 9’ unless sooner terminated as provided herein. (Note: Termination date of Sublease cannot exceed
expiration date of Master Lease.)
4. Renti. Sublessee shall pay to Sublessor as rent for the Premises in advance on the first day of
each calendar month of the term of this Sublease without deduction, offset, prior notice or demand, in
lawful money of the United States, the sum of Dollars and
Cents ($ ). If the commencement date is not the first day of the month, or if the Sublease
termination date is not the last day of the month, a prorated month installment shall be paid at the then
current rate for the fractional month during which the Sublease commences and/or terminates. Receipt
of$ is hereby acknowledged for rental for the first month,
and the additional amount of $ as non-interest bearing security for performance under this
Sublease. In the event Sublessee has performed all the terms and conditions of this Sublease throughout
the term, upon Sublessee vacating the Premises, the amount paid as a security deposit shall be returned
to Sublessee after first deducting any sums owing to Sublessor.
5. k. Sublessee shall use the Premises for
and for no other purposes without prior written consent of Sublessor. Sublessee’s business shall be
established and conducted throughout the term hereof in a first class manner. Sublessee shall not use the
Premises for, or carry on, or permit to be carried on, any offensive, noisy or dangerous trade, business,
manufacture or occupation.
*6. Indemnification. Sublessee shall indemnify and save harmless County of San Diego, it officers,
agents, and employees from and against any and all claims, demands, liabilities, or loss of any kind or
nature which County, its officers, agents, or employees may sustain or incur, or which may be imposed
upon them or any of them for injury to, or death or, persons or damage to property, as a result of, arising
out of, or in any manner connected with this Sublease or with occupancy and use of the Subleased
Premises by Sublessee, its officers, agents, employees, licensees, patrons or visitors except as
attributable to an act or omission of County. Sublessee further agrees to pay any and all costs and
expenses, including, but not limited to, court costs and reasonable attorneys’ fees, incurred by County on
account of any such claims, demands, or liabilities.
7. Insurance. Sublessee agrees to provide Sublessor with a Certificate of Public Liability and
Property Damage Insurance in an amount satisfactory to Sublessor, but in no event less than:
$ bodily injury, each person
$ bodily injury, each occurrence, and
$ property damage
OR
$ combined single limit in lieu of above.
Workers’ Compensation to statutory limits.
*8. Provisions Constituting Sublease. This Sublease is subject to all of the terms and conditions of
the Master Lease. Sublessee shall assume and perform the obligations of Sublessor and Lessee in said
Master Lease, to the extent said terms and conditions are applicable to the Premises subleased pursuant
to this Sublease. Sublessee shall not commit or permit to be committed on the Premises any act or
omission which shall violate any term or condition of the Master Lease. In the event of the termination
of Sublessor’s interest as Lessee under the Master Lease for any reason, then this Sublease shall
terminate coincidentally therewith without any liability of Sublessor and County to Sublessee.
Sublessee hereby acknowledges and agrees that Sublessee waives all rights to any form of Relocation
Assistance provided for by local, State, or Federal law that Sublessee may be entitled to by reason of this
Sublease.
*9. Federal Av iation Adm . . tstration Rea i emen& In the event there is any conflict between the
provisions in this Clause and:nhe other provi:iLns in this Sublease, the provisions in this Clause shall
take precedence.
a. Sublessee, for itself, its heirs, personal representatives, successors in interest, and assigns, as
a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land
that in the event facilities are constructed, maintained, or otherwise operated on the said property
described in this Sublease for a purpose for which a DOT program or activity is extended or for another
purpose involving the provision of similar services or benefits, Sublessee shall maintain and operate
such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code
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. .,.
of Federal Regulations, DOT, Subtitle A, Office of the Secretary, Part 2 1, Nondiscrimination in
Federally-Assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil
Rights Act of 1964, and as said Regulations may be amended.
b. Sublessee, for itself, its personal representatives, successors in interest, and assigns, as a part
of the consideration hereof, does hereby covenant and agree as a covenant running with the land that: (1)
no person on the grounds of race, color, or national origin shall be excluded from participation in, denied
the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the
construction of any improvements on, over, or under such land and the furnishing of services thereon, no
person on the grounds of race, color, or national origin shall be excluded from participation in, denied
the benefits of, or otherwise be subject to discrimination, (3) that Sublessee shall use the Premises in
compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations,
Department of Transportation, Subtitle A, Offke of the Secretary, Part 2 1, Nondiscrimination in
Federally-Assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil
Rights Act of 1964, and as said Regulations may be amended.
c. That in the event of breach of any of the above nondiscrimination covenants, Sublessor shall
have the right to terminate this Sublease and to re-enter and repossess said land and the facilities thereon,
and hold the same as if said Sublease had never been made or issued. This provision does not become
effective until the procedures of 49 CFR Part 21 are followed and completed including expiration of
appeal rights.
d. Sublessee shall furnish its accommodations and/or services on a fair, equal and not unjustly
discriminatory basis to all users thereof and it shall charge fair, reasonable and not unjustly
discriminatory prices for each unit or service; PROVIDED, THAT Sublessee may be allowed to make
reasonable and nondiscriminatory discounts, rebates or other similar type of price reductions to volume
purchasers.
e. Non-compliance with Provision d above shall constitute a material breach thereof and in the
event of such non-compliance Sublessor shall have the right to terminate this Sublease and the estate
hereby created without liability therefore, or at the election of Sublessor, County or the United States,
any or all said entities shall have the right to judicially enforce said Provisions.
f. Sublessee agrees that it shall insert the above five Provisions in any sub-sublease, contract or
agreement by which said Sublessee grants a right or privilege to any person, firm or corporation to
render accommodations and/or services to the public on the Premises herein subleased.
g. Sublessee assures that it will undertake an affirmative action program as required by 14 CFR
Part 152, Subpart E, to insure that no person shall, on the grounds of race, creed, color, national origin,
or sex be excluded from participating in any employment activities covered in 14 CFR Part 152, Subpart
E. Sublessee assures that no person shall be excluded on these grounds from participating in or
receiving the services or benefits of any program or activity covered by this subpart. Sublessee assures
that it will require that its covered suborganizations provide assurances to Sublessee that they similarly
will undertake afTirmative action programs and that they will require assurance from their
suborganizations, as required by 14 CFR Part 152, Subpart E, to the same effort.
h. County reserves the right to further develop or improve the landing area of the Airport as it
sees fit, regardless of the desires or view of Sublessee, and without interference or hindrance.
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I. County reserves the right, but shall not be obligated to Sublessee, to maintain and keep in
repair the landing area of the Airport and all publicly-owned facilities of the Airport, together with the
right to direct and control all activities of Sublessee in this regard.
j. This Sublease shall be subordinate to the provisions and requirements of any existing or
future agreement between County and the United States, relative to the development, operation or
maintenance of the Airport.
k. There is hereby reserved to County, its successors and assigns, for the use and benefit of the
public, a right of flight for the passage of aircraft in the airspace above the surface of the Premises herein
subleased. This public right of flight shall include the right to cause in said airspace any noise inherent
in the operation of any aircraft used for navigation or flight through the said airspace or landing at,
taking off from or operation on the Airport.
1. Sublessee agrees to comply with the notification and review requirements covered in Part 77
of the Federal Aviation Regulations in the event future construction of a building is planned for the
subleased Premises, or in the event of any planned modification or alteration of any present or future
building or structure situated on the subleased Premises.
m. Sublessee by accepting this expressly agrees for itself, its successors and assigns that it will
not erect nor permit the erection of any structure or object nor permit the growth of any tree on the land
subleased hereunder that conflicts with Part 77 of the Federal Aviation Regulations. In the event the
aforesaid covenants are breached, County and/or Sublessor reserve the right to enter upon the land
subleased hereunder and to remove the offending structure or object and cut the offending tree, all of
which shall be at the expense of Sublessee.
n. Sublessee by accepting this Sublease agrees for itself, its successors and assigns that it will
not make use of the subleased Premises in any manner which might interfere with the landing and taking
off of aircraft from the Airport or otherwise constitute a hazard. In the event the aforesaid covenant is
breached, County and/or Sublessor reserve the right to enter upon the Premises hereby subleased and
cause the abatement of such interference at the expense of Sublessee.
o. It is understood and agreed that nothing herein contained shall be construed to grant or
author& the granting of an exclusive right within the meaning of Section 308a of the Federal Aviation
Act of 1958 (49 U.S.C. 1349a).
p. This Sublease and all the provisions hereof shall be subject to whatever right the United
States Government now has or in the future may have or acquire, affecting the control, operation,
regulation and taking over of said Airport or the exclusive or non-exclusive use of the Airport by the
United States during the time of war or national emergency.
* 10 Signs. . Sublessee shall not erect nor cause to be erected any sign on the Subleased Premises
without the prior written approval of the County Assistant Deputy Director - Aviation. A written request
for sign approval must include the size, type, color and location of the proposed sign and said
application must be concurred in by Sublessor before submittal to County Assistant Deputy Director -
Aviation.
* 11. Substance Abuse. Sublessee and its employees and agents shall not use or knowingly allow the
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use of the subleased Premises for the purpose of unlawfully driving a motor vehicle or aircraft under the
influence of an alcoholic beverage or any drug or for the purpose of unlawfully selling, serving, using,
storing, transporting, keeping, manufacturing or giving away alcoholic beverages or any controlled
substance, precursor, or analog specified in Division 10 of the California Health and Safety Code, and
violation of this prohibition shall be grounds for immediate termination of this Sublease.
This Sublease entered into this day of 919 -
SUBLESSEE:
BY (Title) (Title)
BY BY (Title) (Title)
Address Address
SUBLESSOR:
m:\pts\pts.s12 JOR 080497
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CITY CLERK
CITYOFCARLSBAD 1200CARLSBADVILLAGEDRIVE CARLSBAD,CA92005 EXHMTB
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SETTLEMENT AGREEMENT BETWEEN
THE CITY OF CARLSBAD
THE COUM’Y OF SAN DLEGO
AND COAST WASTE MANAGEMENT
This Settlement Agreement and Mutual Release (“Agreement”) is made and entered into
this s day of August, 1997, by and among the CITY OF CARLSBAD, California, a municipal
corporation (“Carlsbad”), COAST WASTE hl.%XAGEMENT, INC., a California corporation
(Coast”), and the COUNTY OF SAN DJEGO, a political subdivision of the State of California
(the “County”).
. .
I.
RECITALS
A. The County owns the Palomar Transfer Station Site (the “Facility”) in Carlsbad,
California (County Real Property Parcel Numbers 84-0127-A & 86-0442-Al-B), which it leased
to Coast under County Contract No. 7063OR (the “1984 Lease”).
B. During ‘1994, disputes arose among the parties as to their respective rights and
duties with respect to the Palomar Transfer Station, including the following litigation:
1. Coosr Wave A4cmogement, Inc., et al. v. Cow@ of San Diego, et al.,
U.S. District Court No. 94-l S2HEG (a challenge by Coast and Carlsbad seeking to prevent the
County’s termination of Coast’s 1954 Lease).
F:\CLIENTS\CTTChD\CO.~ST~VS~~~~~~C~.~85 FN,U S&lTLE~lE?4T AGREEhlENT 1 .-
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2. City of Cmlsbnd v. Comr)-1 of .%vr Diego, et cd., San Diego Superior Court
Case No. N66415 (an eminent domain action seeking to acquire the Palomar Transfer Station
property from the County).
C. The San Diego Solid Waste Authority, a joint powers authority (the “Authority”)
was a party defendant to Case No. 94-l S23-IEG. However, upon motion by Coast, the Authority
was dismissed from that action by order of the Court filed March 11, 1996.
D. In June 1996, the Parties filed a Stipulation for Settlement and Mutual Dismissals
Without Prejudice with the United States District Court; the Court entered an order on that
stipulation on September 6, 1996. The Stipulation provided that because of uncertainties over the
future operation of the San Marcos Landfill and the transition of assets to the Authority, the 1954
Lease to Coast was amended and extended for an “Interim Lease Period,” lasting until
May 3 1, 1997. The Stipulation further provided that during the Interim Lease Period, the parties
would agree to “meet, confer and negotiate in good faith with respect to the permanent, longer
term settlement.”
E. On September 23, 1996, in Cowq of San Diego v. Cip of San Marcos, et al.,
Case No. 6795 14, the Superior Court upheld a City of San Marcos order that the San Marcos
Landfill must cease receiving solid waste for disposal no later than March 11, 1997.
F.
G.
The Authority has dissolved. The Authority is not a party to this Agreement.
The parties have now reached a full and complete agreement to convert the
dismissal in the Coast Wasle. h., et al. s. COWLS of San Diego, et al. case referenced above to a
dismissal with prejudice, without any admission of legal fault, wrongdoing, or liability on the part
of any party. The agreement is to be carried out through this Agreement, and through the Leases
described in section IV below (“the Leases”). It is the intent of the Parties that this be a full, final,
F:\CLIE~S\CTTC.~\CO,~T~VS~~~~~~~C.~I~.3SS
FINAL SEYTLEHENT AGREEILIENT 2
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and complete settlement of the above-referenced litigation, except to the extent that any party has
expressly reserved rights in this Agreement and/or through the Leases.
H. The Parties agree and find in executing this Agreement that (i) the County is a
participant in the market for solid waste disposal services; (ii) Carlsbad and the County are acting
as local a_eencies to make adequate provision for solid waste handling, both within their respective
jurisdictions and in response to regional needs, pursuant to the powers vested in them in Public
Resources Code Section 40002; and (iii) this Agreement and the Leases serve a legitimate public
purpose in connection with the safe and cost effective disposal of solid waste. The Parties agree
that this Agreement and its implementing Leases do not violate the federal Commerce Clause, the
Sherman Anti-Trust Act, or any other similar provision of federal or state law. In consideration
for the payments, promises and conditions below, it is the mutual intention of the Parties to
release one another from these commerce clause, anti-trust, and similar claims.
I. The Parties acknowledge that they reached an agreement in principie prior to
March 12, 1997, and that, pending the completion and execution of this Agreement, all Parties
have acted in reliance on the Agreement which is now being memorialized herein.
J. To the extent that notice may be required pursuant to Public Resources Code
section 49520 in order for this Agreement to terminate in five years as provided herein, the Parties
acknowledge that such notice is deemed given.
DEFINlTIONS
A. Coiw.
The term “Coast” shall mean COAST WASTE MANAGEMENT, INC., a California
corporation, and subject to the approval provisions of this Agreement and in the Leases, its
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approved successors and assigns, or such other entity or sublessee as Carlsbad shall authorize to
operate the Facility during the term of its use under this Agreement.
B. Expansion.
The term “Expansion” shall include any action to increase the handImS capacity ofthe
Facility above the 800 tons per day currently permitted by the Carlsbad CUP.
C. Fncilitv.
The term “Facility” shall mean the land, improvements, transfer station and related
facilities located on the property described in Exhibit A attached hereto.
D. Lease.
The term “Lease” shall mean (1) that certain Lease of real property and building space
which the County Airports Division, as Lessor, and Carlsbad, as Lessee, intend to execute
pursuant to this Agreement; and (2) the existing lease between the County Airports Division, as
Lessor, and Coast, as Lessee, which was scheduled to terminate by its terms on May 3 1, 1997,
but which was extended on a month-to-month basis pending execution of the Leases
contemplated by this Ageement. The existins month-to-month lease as extended shall remain in
effect until the new Leases are signed except that the leased property shall include the full 10.975
acres described in section IV.
E. Leases.
The term “Leases” refers collectively to the Lease and the Sublease.
F. Sublease.
The term “Sublease” shall refer to the sublease between Carlsbad and Coast, the key deal
points of which are set forth in section IV and any subsequent sublease between Carlsbad and any
successor to Coast, to be executed by Carlsbad as Sublessor and Coast as Sublessee.
F:\CLIE~SICTTC.U)\COAST\\‘S~L~~~~C~C.~.~~~
FIXAL SEl-lES[EbT AGREEhEm 4
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G. Recvclables.
The term “Recyclables” shall refer to those items collected and brought to the Palomar
Facility which are diverted for recycling, reclamation, or re-use and which are not sent to a landfill
for disposal.
H. Countv Landfill.
The term “County Landfill” shall refer to the followinS landfills: Ramona Landfill,
Sycamore Landfill and Otay Landfill.
I. collntv.
The term “County” shall mean the County of San Diego and, where indicated, its
transferee. As indicated throughout this Agreement, this Agreement confers rights and
obligations on the County’s Airports Division, as the Lessor of the property, and certain rights and
obligations on the County’s Soiid Waste Sen;ices. The parties acknonledge that the County is
considering divestiture of some or all of its solid ivaste assets. Where indicated, the County’s
transferee succeeds to the rights and obliyations of the County’s Solid Waste Services in this
Agreement
J. Divestiture.
The term “divestiture” shall mean the County’s sale of some or all of its solid waste assets.
III.
SETTLEMENT
A. Basic Structure.
s 1. Lease For Collection. Oneration. Transfer and Related Solid Waste
Purooses. The County Airports Division will lease theaFacility to Carlsbad for use as a collection
and operation center and for transfer and related solid waste purposes for a term of five years
F:\CUE~\TCTTC.~\CO.~S~VSTIUOCUhIE~T,CTTC.~)G.3Yf
FIXAL SElTLE.\fli~T AGKEFAIWT 5
beginning June 1, 1997. Carlsbad shall sublease the site to Coast on a “pass through” basis, i.e
Coast or a successor sublessee will operate and maintain the site, pay the rent, and otherwise
perform all of the obligations of the Lease and Sublease, and of this Agreement, with respect to the
site. C&bad will have a right of first refusal during the term of its Lease to acquire fee title to the
Facility on the same terms and conditions as any prospective purchaser or transferee receiving fee
title from the County should the County ever propose to sell or transfer the property. This right of
first refusal is effective only during the term of the Lease, and shall expire upon termination of the
Lease. The County shall notify Carisbad of any offer to purchase or proposal to transfer fee title to
the Facility and shall allow Carlsbad ninety (90) days after notice to exercise the option to acquire
the Facility on the same terms and conditions. If Carlsbad fails to exercise the option to acquire
the property within such ninety (90) days, it shall be deemed to have declined to exercise its right
of first refusal.
9 L. Transfer Ooerations. Carlsbad as Lessee, and Coast as Sublessee, shall have
the right to conduct transfer and transport activities at the Facility during the term of the Lease and
Sublease on the terms and conditions set forth herein and in conformance with all applicable
permits, laws, rules, and regulations, in addition to Coast’s right to continue its collection and
operations use of the Facility.
B. Permits and Processin?.
1. Carlsbad. The parties acknowledge that the Carlsbad Planning Commission
approved a CUP amendment for the project on March 5, 1997 to allow the Facility to operate at
its original design capacity of 800 tons per day. Carlsbad’s action on the CUP amendment
included CEQA compliance. The parties acknowledge and agree that on March 12, 1997, the
Facility began operations at 800 tons per day in reliance on the CUP in anticipation of the final
execution of this Agreement.
F:\CLIE~S\CTTC.~\CO~ST~S~~~~~~C~C~.3~5
FIX.41 SElTLEMENT AGREESlENT 6
C - _
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2. Coast. Coast shall take any and all actions, provide information, and pay
any fees, to promptly process through the Local Enforcement Agency (“LEA”) and the Integrated
Waste Management Board (“IWMB”) an application to amend the Solid Waste Facilities Permit
(“SWFP”) permit to allow operation of the Facility at 800 tons per day.
3. The County Solid Waste Services and Airports Division, as land Countv.
owner, shall sign all permit applications giving their consent to processing and approval of the
requested amendments, and shall in all other respects assist the prompt processing of the CUP and
SWFP permit amendments and any Interim Order that may be necessary to allow continued
operations at 800 tons per day.
C. Trash Hnndlinp and Tt-nnsfer.
The parties have agreed that the Facility can and should be operated by CarlsbadKoast at
its original design capacity of 800 tons per day, that operation at this capacity by March 12, 1997,
was beneficial and important to the region, given that the San Marcos landfill was scheduled to
close, and did close, after March 11, 1997, and that the use of the Facility to service 800 tons per
day is an important part of the regional plan to provide safe, cost effective and environmentally
sound waste service post San Marcos closure. Key aspects of the waste handling and transfer
portions of the agreement between the parties are:
1. Service Areas. The 800 tons of capacity Shall be made available consistent
with any terms and conditions which may from time to time be set forth in the Carlsbad CUP and
’ in the SWAP permit.
2. Limitations on Use of Palomar Facilitv. With respect to transfer operations,
service at the Facility will be limited to:
64 Commercial Users: First priority shall be given to commercial
waste haulers holding a County Waste Hauler’s Permit whose loads originate in any service area
F:\CL~NTS\CTTC.~\CO.~ST~VS~~~~~~.C~C.~6.3SS
FIXAL SEl-l-LE!&ti AGREEMENT 7
which may from time to time be designated in the Carisbad CUP. Second priority shall be given
to other permitted commercial waste haulers with compactors and/or mechanical off loading
devices. Third priority to all other users. At no time shall the per day tonnage limit set by
Carlsbad’s CUP or the SWFP be exceeded. In the event that a dispute as to priority of use of the
Facility should arise, the parties agree to meet and confer in good faith in an attempt to reach
agreement on how available capacity should be allocated. If the parties are unable to so agree
within 30 days, then Carlsbad shall have the right to make the final decision.
W Self-Haul: Non-commercial, self haul loads shall be accepted on
weekends only, or at such times, days and hours as may from time to time be set by Carlsbad.
Carlsbad shall have the right, through its CUP or by order of its City Manager, to impose
additional conditions and restrictions on weekend self haul use of the Facility if traffic, litter, or
other problems arise. The panies agree that Goss: ivill carefully monitor its costs incurred in
providing self haul service on the weekends, and that during the month of September 1997 the
parties shall meet and confer in good faith to review Coast’s actual cosrs incurred to that time in
providing this service, and Carlsbad and the County Solid Waste Services agree to adjust the rates
which the County may charge to self haul users as appropriate to cover Coast’s documented costs
and to provide a reasonable profit to Coast;
(4 Buv-Back: Recyclable buy back shall be permitted on the terms and
at the days and hours as may from time to time be set by Carlsbad. Carlsbad shall have the right,
through its CUP or by order of its City IManager, to impose additional reasonable conditions and
restrictions on recyclable buy-back operations if trafftc, litter, or other problems arise;
(4 Hours and days of operations shall be as set in the Carlsbad CUP;
(4 So long as Carlsbad is in good standing under its Lease, and Coast is
in good standing under its Sublease, Coast may use the site for its non-transfer collection and other
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FIXAL SETl-LE.\tEM .AGREEMEiUr 8
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business activities within the restrictions of the Carlsbad General Plan, Zoning, City Code, and the
CUP.
3. Transfer and TransDort. Coast, or a successor sublessee, shall transfer waste
at the facility from the incoming vehicles and self haul loads, all in conformance with the CUP, the
SWFP, this Agreement, and applicable federal, state, and local laws, rules and regulations that may
from time to time apply. Carlsbad shall have the right to approve of any substitute or new operator
of the Facility besides Coast which approval shall not be unreasonably withheld. In addition, the
County Airports Division, as landlord, shall have the right to approve the change in Sublessee,
which approval shall not be unreasonably withheld, in conformance wirh the terms of the Lease
and Sublease.
4. Recvcline. Coast shall have the right to recover recyclables from the waste
stream for reclamation, reuse, and resale. Loads entering the Facilic that are 100 percent
recyclables, and which are in fact reclaimed and/or recycled and not sent for disposal, shall not be
subject to the fee payment structure set forth below applicable to all lvaste destined for disposal.
With respect to loads of mixed waste that enter the facility, cross the scales, and pay fees pursuant
to the schedule set forth below, a rebate or credit shall be given for any recyclables that are
subsequently removed and actually reclaimed, reused or recycled and not sent for disposal. As to
any such recyclables picked from the waste stream, recyclables so removed shall be re-weighed
across the scales and an appropriate credit given at the same rate as the charges imposed when the
material entered the Facility such that no fees shall be paid to the County Solid Waste Services, or
its transferee, for materials that are actually diverted for recycling, reclamation, reuse and resale
and which do not end up in a disposal facility. Any fees that are collected by the County Solid
Waste Services, or its transferee, at the Facility gate at the time of entry of material which is later
determined to be recyclables within the meaning of this paragraph shall be paid over to Coast.
F:\CLLEMS\CTTCAD\COAST~VS~L~.~~T.C~C~.3S5
FINAL SEITLEMENT AGREE.WBT 9 i
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?n accordance with Section N(D) of the Fee Schedule’, Coast shall be responsible to
provide information upon request, on the source of the waste being processed at the Facility or
hauled to a landfill. If Coast willfully or negligently misrepresents the origin of the waste in a
manner that could result in a material’ improper reporting of waste volumes for any jurisdiction,
Coast will be subject to the administrative fees provided in the Fee Schedule.
In the event that Coast is found responsible for three or more violations of the recycling
provisions of this Agreement in any six (6) month period, in addition to the penalties provided
above, such finding of three violations in any six (6) month period shall constitute a material,
uncorrected, breach of this Agreement and of the Sublease entitling the County, or its transferee, or
Carlsbad, to exercise their rights for uncorrected material breach, including termination of Coast’s
rights under this Agreement and termination of the Sublease.
5. No Flow Control. Carlsbad and Coast shsll be free to direct waste to any
disposal site of their choosing. It is understood that disposal at a site not covered by the CEQX
review and certification issued incident to the Carlsbad Planning Commission’s March 5, I997
CUP amendment approval will require additional environmental review in the form of an initial
study, negative declaration, EIR, or exemption.
‘The Fee Schedule is the schedule of fees set and published by the County or its transferee
for use of its solid waste facilities and services. A copy of the relevant portion of the current
edition of the Fee Schedule is attached hereto for reference as Exhibit B.
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*The parties recognize that waste from a variety of commercial haulers, as well as from v self haulers, will be entering the Facility and that these wastes may be commingled on the tipping
floor and packaged in larger vehicles for transfer and transport. To the extent that transfer loads
contain such commingled waste, Coast’s ability to accurately report the origin of waste in these
transfer loads is only as good as the information that non-Coast contrqlled haulers and self haulers
- give to the County Solid Waste Services, or its transferee, at the entry gate to the Facility,
although Coast retains a higher degree of responsibility for accuracy in reporting as to the origin
of waste in Coast controlled vehicles entering the Facility.
F:~cL~NTs\crrCAMCo~s~~~~~~~~~~\~l~c~~.3~5
FIXAL SElTLE.\IE?JT .GREES!Eh-T 10 --
6. Tip Fee at Palomar. The parties agree that beginning March 12, 1997, the
County ~3s entitled to collect all fees for the placement or disposition of any solid waste at the
Facility, except recyclables as provided for herein. The County Solid Waste Services, or its
transferee, shall be entitled to collect such fees throughout the duration of the Lease. Coast and
Carlsbad acknowledge and accept the changes made by the County to the fee booths and scales to
accommodate fee collection pursuant to this Agreement, and agree that the County may make such
further modifications as it deems necessary to the fee booths and scales, at its expense, to
accommodate fee collection. In consideration of this Agreement and the Leases, the County
makes the following guarantees.
(4 Fee at Facilitv G-ate. Beginning March 12, 1997, and,continuing
until May 3 1, 2002, the total fee collected by the County Solid Waste Services, or its transferee,
for the processing, placement or disposition of solid waste at the Facility shall not exceed thirty
eight ($38) per ton. Of that amount, County Solid Waste Services, or its transferee, shall retain
seventeen (S17) dollars per ton as its share of the tip fee for use of the Facility.
@I Disoosal Fees For Transferred Waste. Beginning March 12, 1997,
the County Solid Waste Services has provided, and until May 3 1 , 2002, it or its transferee shall
continue to provide a basic reduced tip fee of eight ($8) dollars per ton for waste transferred from
the Palomar Facility to a County Landfill (currently the Sycamore Landfill). Although not
currently contemplated, if in the future waste from the Facility is directed to the Otay Landfill the
basic reduced tip fee at Otay shall be six ($6) dollars.per ton.
03 Disposal Fees for Waste in Excess of that Generated within the Citv
of Carlsbad. Beginning March 12, 1997, the County Solid Waste Services has provided, and it or
its transferee shall continue to provide until May 3 I, 2002, a further reduction in the tip fee at a
County Landfill for waste transferred from the Palomar Facility which is in excess of the average
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daily tonnage of waste generated within the City of Cadsbad (Carlsbad’s trash)‘. Al1 waste up to
800 tons per day minus the waste generated within the City of Carlsbad and disposed of in County
Landfills will receive a further reduction of S3.50 per ton. All waste between 800 and 1,000 tons
per day, minus’ Carlsbad’s trash disposed of in County Landfills, will receive a further reduction of
$3.2 j from the basic tip fee of $8. The parties recognize that the capacity of the Facility is
currently limited to 800 tons per day and that any increase above that level will require further
applications to Carlsbad, the County Local Enforcement Agency, and the WMB, and will be
required to undergo appropriate environmental and other reviews. The purpose of the pricing
provisions set forth herein respecting daily tonnages over 800 tons per day is only to confirm the
agreement of the parties with respect to pricing should such additional tonnages ever be permitted
in the future.
(4 Transfer and Trsnsoort Fees to Coast. Beginning on bfarch 13,
1997, the Counry Solid M:asIe Services has credited, and it or its transferee shall continue until
May 3 1, 2002, to credit and pay to Coast, twenty one (S21) per ton of the Thirty Eight dollars per
ton collected at the gate. This shall constitute payment in full to Coast for transfer and transport of
waste to County Landfills under this Agreement. However, in the event that waste is ever directed
‘In computing the amount of waste generated within the City of Carlsbad and disposed of
at County facilities, the parties agree that all waste generated within the corporate limits of the
City of Carlsbad which is disposed of in County Landfills shall be counted, whether it is
transferred and transported through the Palomar Facility, through direct haul, or otherwise, so
long as it is disposed of in a County Landfill. The Parties further agree that the beginning number
to be used as “Carlsbad’s trash” under this Agreement shall be based upon measurements of
actual volumes received at the Facility from March’12, 1997 to April 12, 1997 and a starting
baseline shall be set based on such measurements effective as of March 12, 1997 , and that
Carlsbad’s actual tonnage shall be measured every six months thereafter and. the baseline adjusted
to reflect the actual figures. Further, the parties agree that adjustments will,be made retroactively
at each six month interval with appropriate additional charges to Carlsbad, or credits, as the case
may be. _
F:\CLLENTS\CTTC.UXCOASTWST\WC~IE~~,CTTChD6.38~
FINAL SEl-fLE..LE~ AGREEhfEENT 12
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to the Otay Landfill for disposal rather than the Sycamore Landfill, Coast shall receive the
additional two dollars as provided above in subsection (b).
Coast’s compensation shall be adjusted to reflect any unusual changes in fuel prices
incurred by Coast during the term of this Agreement related to the transport of waste from the
Facility to a County Landfill. An “unusual change in fuel price” shall be defined as a 15 percent or
greater change in the cost of fuel to Coast as set forth in the Oil Price Information Service (“OPIS”)
Fuel Price Index, either up or down, within any 6 month period. If the 15 percent threshold is met,
then Coast and the County or its transferee shall share evenly in such increase, or decrease, in fuel
cost incurred during that 6 month period. If the parties cannot agree on the application of this fuel
price change sharing provision with respect to a paiticular situation, any party niay invoke the
dispute resolution provisions of section 0 of this Agreement. In addition, if Coast believes that, as
a direct result of entering into this Agreement, Coast experiences unavoidable material increases in
its insurance costs, Coast shall be entitled to present a request for what it believes to be an
appropriate adjustment in its compensation. If Coast presents such a request, Coast, Carlsbad, and
the County Solid Waste Services, or its transfere e, shall meet and confer in good faith to consider
the basis for the request. If the Parties agree, an appropriate adjustment shall be made in Coast’s
compensation. If the Parties do not agree, Coast may invoke the dispute resolution provisions of
Section 0 of this Agreement.
(4 Coast Collection and Transmittal to Carlsbad of Monies for Excess
Tonnage Reductions. Beginning on March 12, 1997, and cdntinuing to May 3 1,2002, Coast has
collected, and shall continue to collect and transmit back to Carlsbad in cash, or in such other
manner as Carlsbad may from time to time direct, and at such intervals as Carlsbad may direct,
but not more than monthly, the amount of reduced tip fees for all waste disposed of in County
Landfills above Carlsbad’s trash as set forth above.
IV.
LEASES
Under the prior Interim Settlement Agreement Coast had a one year lease from the County
Airports Division expiring on May 3 1, 1997, for 7.243 acres. To accommodate implementation
of this Agreement the parties intend to enter into new Leases increasing the leased acreage from
7.243 acres to 10.975 acres. The parties contemplate that the following Leases will be executed as
soon as possible. Until the new Leases are signed, the parties contemplate extension of the
existing one-year interim lease by separate letter agreement, on a month-to-month basis, provided
however, that the rent payable and acreage leased starting June 1, 1997, shall be as set forth belou
in IV(A). The Leases shall conform to the following basic deal points:
A. Master Lease From Countv to Carlsbnd.
There will be a master lease from the County Airpons Division to Carisbad. Key terms of
this Lease include:
1. Acreage: 10.975;
7 -_ Term: Five years, commencing June 1, 1997;
3. Rent: Starting June 1, 1997: 623,634.90 per month, subject to
annual Cost of Living Adjustments as set forth in the Lease;
4.
5.
Terms: Standard Airports Lease Terms as adjusted through
negotiations. of the parties:
Termination: Quiet enjoyment to Carlsbad and subleases, early
termination for material breach of lease that remains
F:\CLIT~S\CTTCAD\CO.~ST~~‘S~~L~n~~Cn’C~n6.3JJ
FINAL SEl-l-LESO3T AGREELIENI’ .14
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uncorrected after notice, or for material breach of
Settlement Agreement that remains uncorrected after notice;
6. Enforcement: Through standard lease enforcement; through Settlement
Agreement, including forfeiture for failure to cure material
breach after notice;
7. First Refusal: Right in favor of Carlsbad to first refusal to acquire title to
the fee interest in the property as set forth above in
paragraph UIA;
B. Shared Tin Fee Revenues to Countv Solid Waste Services.
At 817 per ton (not including recyclables) commencing March 12, 1997, payable to
County Solid Waste Services, or its transferee.
c. Cadsbad to Coast Sublease.
There will be a Sublease from Carlsbad to Coast mirroring and passing through to Coast
day to day operational control and responsibility for the site. Key terms of the Sublease will
include:
1.
3 &.
Acreage: 10.975;
Rent: Coast will pay all rent due on the site directly to the County
Airports Division;
3. Operations: Carlsbad will impose such oversight provisions and
operating standards as it deems’necessary to ensure that
Coast safely and properly operates the Facility, such terms
and provisions to reflect the negotiations of Coast and
Carlsbad yet to occur, the terms and cdnditions of this
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Fl?&U SETTLEXiEXl- AGREEMEMf 15
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4. Other:
5.
6.
Agreement, and of the CUP for the Facility. An operations
agreement may, in the discretion of Carlsbad, be separately
prepared and incorporated into the Sublease;
The Sublease shall ensure that any and all site related
obligations imposed on Carlsbad by the Lease are
passed through and become the obligation of Coast,
including rent payment, maintenance of the Facility,
etc., it being the intent that Coast will have the right
to control and operate the Facility under its Sublease,
with a right of quiet enjoyment, so long as it
performs the site related obligations of the Lease, the
Sublease: the CUP, any operations agreement, and
this Agreement.
Term: Five years, commencing June 1, 1997.
Extension: If the County does not proceed with the divestiture of the
assets of the County Solid Waste System and instead decides
to retain control of the system, then the County, Carlsbad,
and Coast agree to meet and negotiate in good faith to reach
agreement on three additional consecutive five (5) year
option periods in the Leases (including the Sublease) for the
use of the Facility, subject to the right of Carlsbad if it
deems appropriate in its discretion to protect and promote
the public interest, to under-take competitive bidding or a
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competitive proposal process with respect to Transfer and
Transport operations at the Facility at the end of the initial
five (5) year term.
D. Proiect Desion Enhancements.
The parties have agreed as an important part of this Agreement that the project design
enhancement measures set forth on Exhibit C hereto will be included in the project. These
measures are being incorporated into the project as part of project design, and are agreed to as a
contractual and settlement matter, independent of CEQA. The parties understand that these
measures will eliminate any potential adverse impacts or unusual circumstances that might
otherwise adversely affect the environment or Carlsbad and its residents arising incident to
increasing operations at the Palomar site to SO0 tons per day of transfer activity.
The parties agree that these measures may be included as conditions of approval of the
CUP as well as part of the project description if Carlsbad so desires to ensure that they are
implemented. These measures, unless expressly stated otherwise, are to be funded by the County
Solid Waste Services.
E. Relationship) of Ao,reement to CLrP.
1. Settlement Agreement Controls.
The parties agree that to the extent there is any ambiguity or conflict between the
provisions of this Agreement and the CUP issued by Carlsbad, this Agreement shall control. The
CUP shall be interpreted and enforced according to law in a manner consistent with this
Agreement at all times.
2. Enforcement of CUP bv Carlsbad.
With respect to the provisions of the CUP regarding enforcement by Carlsbad, and in
particular condition 9 of the CUP, the parties agree that all of the following shall apply:
F:\CLIE~~.CTTC.~\CO~ST~VS~~~~~.crrc.~Dfi,3Is FIXAL SE-ITLEMENT AGREEMENT 17 --
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(4 “Surrounding Properk” shall be defined in conformance with the
Carlsbad Planning Depanment standard practice as those nearby properties potentially affected by
the project, generally within Carlsbad’s standard notice distance of 600 feet of the boundaries of
the Facility and those properties directly abutting a truck route in the City of Carlsbad that will be
used by waste haul vehicles to access or exit the Facility, including collection vehicles and long-
haul transfer vehicles.
W “Negative effects” and/or “detrimental effects” shall not be found to
exist by Carlsbad incident to any CUP enforcement action unless the effects are found, based on
substantial evidence in the record, to be substantial and adverse, and not occasional. “Negative
effects” and “detrimental effects” shall be limited to legitimate environmental, public health, and
public safety issues as prescribed by law such as litter, illegal dumping, noise, and traffic
disruption caused by the project.
(4 In the event that Carlsbad believes the project has caused or is
causing such effects, Carlsbad shall give notice to the County Solid 1Vaste Services, or its
transferee, (with a copy to the Airports Division) and/or Coast, as appropriate to the circumstances,
meet and confer in good faith, and shall give a reasonable opportunity to cure. If the County Solid
Waste Services, or its transferee, and/or Coast does not (1) attend a meet and confer session.within
20 days of receiving notice thereof, or (2) (a) correct the problem within 30 calendar days, or (b)
make good faith progress towards correction within 30 days, then Carlsbad may institute formal
CUP enforcement proceedings. Carlsbad may revoke the CUP only if it first complies with all of
the above and finds, based on substantial evidence.in the record, that a material breach of the CUP
has occurred which remains uncorrected after notice and opportunity to cure.
F:~CLIEX~S\CI’1’C.~~~G~\ST\~S~.~~L~l~~T.~~l’~~\ll6.3~~
FNAL SEITLESIENT AGREEMENT -
IS
The provisions of this subparagraph (E) were independently negotiated and ageed to as
part of this Settlement Agreement, are not a precedent as to any other project, and do not apply to
any other project.
MUTUAL RELE.GES AND DISMISS4LS
A. Rele;lse of Chims.
The County, Carlsbad, Coast, and their respective heirs, executors, administrators,
trustors, trustees, beneficiaries, predecessors, successors, assigns, members, partners, joint
venturers, parents, subsidiaries, affiliated and related entities, officers, directors, shareholders,
principals, agents, servants, employees, representatives, insurers, sureties, attorneys, consultants,
and experts, and each of them hereby jointly and severally release each other from any and liability
for the claims, demands, controversies, actions. causes of action, obligations, liabilities, expenses,
costs, attorneys’ fees and damages of whatever character, nature and kind, known and unknown,
which arise out of the Facility and matters related to possession (whether as tenant or otherwise)
of the Facility or any claim of right of access to or use of the Facility arising prior to the date of
this Agreement, including without limitation those claims which lvere or could have been asserted
in either of the lawsuits referenced above in Section I.B.
B. Waiver of Protection of Civil Code $ 1542.
Each party is aware that it may hereafter discover claims or facts in addition to or different
from those it now knows or believes to be true with respect to the Claims described in Section A
hereof Nevertheless, it is the intention of the Parties to My, finally and forever settle and release
all such matters, and all claims relating to them, which now exist or may have existed between
them, or which arise out of or relate to the Claims. In furtherance of this intention, the releases
F:\CIlENTS\CTTC;\D\CO~ST~VS~~~~~~,C~C.~.3~~
FISU SETTLEMENT AGREEMENT 19
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given herein shall be and remain in effect as full and complete mutual releases of all such matters
notwithstanding the discovery or existence of additional or different claims or facts relating to
them. Moreover, Carlsbad, Coast and the County, acknowledge that they have been advised by
legal counsel, and that they are familiar with and specifically waive any and all rights and benefits
conferred upon them by the provisions of Civil Code section 1532, which provides:
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIhl MUST HAVE hlATERlALLY AFFECTED HIS SETTLElMENT WITH
THE DEBTOR.
KOTICES
Any notices to be given under this Agreement shall be addressed as set forth in this section
Notices or documents sent to the County should be sent to:
Tim Walsh, Deputy Director, Xirports Division
County of San Diego Department of Public 1Vorks
1960 Joe Crosson Drive
El Cajon, CA 92020
Joseph S. Minner
County Solid Waste Services
County Operations Center h/IS-0383
5 5 5 5 Overland Avenue
San Diego, CA 92 123
With a copy to:
Office of the County Counsel
1600 Pacific Highway, Room 355
San Diego, CA 92 10 1-2469
Attention: Diane Bardsley
Notices to the City should be sent to:
City Manager
City ,of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92005
F:‘.CL(E~TS.CTTC.~D\COAST\~S~~IE~~CCTTCAD~.~SS
FIXAL SElTLEhlEh-T AGREES IEKT 20
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With a copy to:
Ron Ball, City Attorney
1200 Carlsbad Village Drive
Carlsbad, CA. 92005
Notices to Coast should be sent to:
Conrad Pawelski, President * Coast Waste Management, Inc.
5960 El Camino Real
Carlsbad, CA 93009
With a copy to:
M’hite Rc Bright
355 W. Grand, Suite 2
Escondido, California 93025
Attention: Bruce White, Esq.
Any party may change the person and/or the address to which notice to it shall be provided by
giving written notice to each of the other parties.
VII.
i\lIISCELL.AXEOUS
A. Disputed Claims.
This Agreement represents the settlement of disputed claims and does not represent any
admission of liability on the part of any party, each of which expressly denies any liability or
responsibility.
B. Governing Law.
This Agreement has been negotiated and entered into in the County of San Diego, State of
California, and shall be governed by, construed and enforced in accordance with the internal laws
of the State of California, applied to contracts made in California by California domiciliaries to be
wholly performed in California.
C. Waiver and Amendment.
F:\CUEKTS\CTTChMCOAST~VSl~~~~T\C~C.~.3S~ FINAL SEl-l-LEhIEXT AGREEUEh~ 21
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No breach of any provision hereof can be waived unless in writing. Waiver of any one
breach of any provision hereof shall not be deemed to be a waiver of any other breach of the same
or other provisions hereof. This Agreement may be amended only by a written agreement
executed by the parties-in-interest at the time of the modification.
D. Entire Agreement.
This Agreement, its exhibits, and the Leases into which the parties intend to enter as
provided in Section TV above. constitute the entire agreement bet\veen the Parties hereto
pertaining to the subject matter hereof, fi~lly supersede any and all prior understandings,
representations, warranties and agreements between the Parties hereto, or any of them, pertaining
to the subject matter hereof, and may be modified only by written agreement signed by all of the
Parties hereto.
E. Tndenendent Advice of Counsel.
Each party to this Agreement represents that in executing this Agreement it relies solely
upon its own judgment, belief and knowledge, and the advice and recommendations of its own
independently selected counsel, concerning the nature, extent and duration of its rights and claims,
and that it has not been influenced by any other party.
F. Voluntarv Agreement.
Each party to this Agreement fUrther represents that it has carefUlly read this Agreement,
understands its contents, and signs it freely and voluntarily.
F:\CL~E;JTS\CTTC.~\C~~ST~~~~~~~1E~~.ClTC.~D6.3II~
FN,AL SEll-LEMENT AGREEMENT 22
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G. Severabilitv.
If any provision oriny part of any provision of this Agreemen; shall for any reason be held
to be invalid, unenforceable or contrary to public policy or any law, then the parties shall meet and
confer in good faith in an effort to determine whether the Agreement and/or the Leases should
,
continue.
H. Attornevs’ Fees nnd Costs.
The parties hereto acknowledge and agree that each shall bear its own costs, expenses,
and attorneys’ fees arising out of or connected with the Action, the negotiation, drafiing,
execution and enforcement of this Agreement, and all matters arising out of or connected
therewith, provided, however, that nothing herein shall supersede or replace the agreement
between Coast and Carlsbad with respect to reimbursement of fees and costs.
T. Binding Effect.
This Agreement shall be binding upon and inure to the benefir of the parties, and their
respective heirs, executors, administrators, trus[ors, trustees, beneficiaries, predecessors,
successors, members, assigns, affiliates, partners, partnerships, parents, subsidiaries, and any
related entities, officers, directors, principals, agents, servants, employees, representatives, and all
firms, associations and/or corporations connected with each of them, including without
limitation, their respective insurers, sureties, attorneys, consultants, and experts. It is expressly
agreed that should the County sell or otherwise transfer some or all of the assets of its solid waste
system that the obligations of this Agreement shall be binding on any such successor to the
County’s interest to the fill extent necessary to honor the terms and provisions hereof.
F:\CLIE~S\CTTC.~COAST~~ST~~~~~.C~C~~6.3S~
FNAL SEl-l-LEMIM AGREN3WT 23
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J. Wnrrantv of Authorized Simntures.
Each of the signatories hereto warrants and represents that he or she is competent and
authorized to enter into this Agreement on behalf of the party from whom he or she purports to
sign.
I(. Recordino,.
The parties agree that this Agreement or an abstract thereof shall be recorded in the
Office of the County Recorder of San Diego, California on each of the parcels which comprise the
Facility.
L. No Assionment of ChinlS.
Each party has not assigned, transferred, or granted, or purported to assign, transfer or
orant, any of the claims, demands, and causes of action disposed of by this Agreement. =
&I. Counterpnrrs.
This Agreement may be executed in tv\.o or more counterparx, each of which will be an
original, but all of which shall constitute one and the same instrument.
N. Assignabilitv
The parties acknowledge that the County is considering whether to sell the landfills and
related solid waste disposal or processing components it owns. The parties fLrther acknowledge
that the interest of the County Solid Waste Services in this Agreement is an integral part of the
County’s solid waste system. Accordingly, the parties agree that the County Solid Waste
Services’ interest in this Agreement, or any part thereof, may be assigned at the sole option of the
County to any such transferee(s), who will be bound by the terms and conditions hereof.
F:\CLZENTS\CTTCAD\COAST~VST~~~~[E~~.C~C~.~SS FlKAL SETI-LESIENT ACiREE.\l-ENl 24
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0. Disnute Resolution: Breach
1. Dispute Resolution. Any dispute arising out of, or related to, this
Agreement shall be handled as follows:
(a> Meet and Confer: Step one in the dispute resolution process shall
be an informal meet and confer session at which the Parties discuss the dispute or problem. Any
Party to this Agreement may initiate the step one meet and confer process by giving written notice
thereof to the other Parties. The Parties shall conduct at least one meet and confer session within
30 calendar days of the date of mailing of the notice, or at such other time as the Parties may
agree. The meet and confer session may be continued, and additional meet and confer sessions
may be held, upon the agreement of all Parties.
(b) Other Remedies: The Parties shall retain their full rights to litigate,
at law or in equity, any issue arising out of, or related to, this -Agreement, provided that no
litigation shall be commenced until at least one meet and confer session has been held as provided
above. A meet and confer session shall be deemed to have been he!d in the event that a Party
oives notice of a meet and confer session and one or more of the other Parties fails to attend at y‘
least one meet and confer session within the 30 day period.
2. Breach. Any breach of the terms of the Lease or the Sublease shall be
considered a breach of this Agreement, and any breach of this Agreement shall be considered a
breach of the Lease, the Sublease, or the Leases as the case may be.
(a> Notice of Alleged Breach: In the event that one or more Parties
*believes that another Party or Parties has breachedthe terms of the Lease, the Sublease, or this
Agreement, that Party shall give notice of the alleged breach, explaining the nature of the alleged
breach and describing what the Party believes is reasonably required to cure the alleged breach.
F:;CLIE~SICTTC.~~COASTI\;ST~\;S~~L~~~~~TCITCAD~.~X~ FN.U SEl-t-LEME?n’ +.GREE.\lEhT 25 :
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-
(W - Right to Cure: Upon receipt of a notice of alleged breach, any Party
shall have the right to cure the alleged breach within 30 calendar days of the date of mailing of the
notice of alleged breach. In the event that the cure cannot reasonably be accomplished within said
30 day period, then the Party attemptins to cure shall present evidence within said 30 day period
of its reasonable good faith progress towards cure, together with a proposed deadline by which
the cure will be completed. The proposed deadline shall in no evenr: be later than 6 months from
the date of mailing of the notice of alleged breach, unless agreed otherwise by all Parties.
cc> Uncorrected Material Breach: With respect to any material breach
which is not cured within the time limits provided above, the Parties shall be entitled to
appropriate remedies at law or in equity as may be determined by a court of competent
jurisdiction, in,addition to any specific remedies that may be stated herein or in the Lease or
Sublease. In the event that a dispute arises under this subparagraph O(2) as to whether or not an
alleged notice of breach was appropriately siven, whether the time requirements have been met,
whether the cure has been effective, or with respect to any other aspect of implementation of
these breach and cure provisions, the Parties shall utilize the dispute resolution process set forth
above in Section 0( 1) prior to invoking any liti,oation remedy.
Ill
//I
//I
/I/
//I
/I/
/I/
F:\CLIE;UTS\CTTC.~\CO~ST\VS~~~(E~~;CTTCAD6.385
FIXAL SEl-ILESlEX AGREE~~E~T 26
-
_C.
C
-
P. Dismissal of Litigation.
The Parties shall execute appropriate documents to dismiss, with prejudice, the litigation
referred to in Paragraph I(B)( 1) of this Agreement and to report to the court that the prior interim
settlement has been converted to this permanent settlement. Notwithstanding, and if the Court is
willing and has jurisdiction to do so, the Parties shall request that the Court, with the Honorable
Magistrate Judge Louis Porter assigned, retain jurisdiction to mediate any disputes that may arise
under this Agreement and to enforce this Agreement as may be required.
IN \VITNESS WHEREOF, the parties hereto have esecuted this Agreement as of the date
and year first noted above.
Dated: ?I??7
Dated: 5/7p 7
By:
By:
CITY QF CARSLBAD
COL%‘TY OF SAX DIEGO
LJXWCFi B. PRIOR, III Chief l&dnistrative Officer
F:\CLEYTS\CITC.UX2OASTWSlUJCCUM9lWTC.~D6.3S5 FINAL SETTLELENT AGREE..ENT
CO.XST WASTE MXXAGEMENT, INC. n
27
_- 133
- -- -
- -
- _
- -
APPROVED AS TO FOR>1 AND CONTENT:
Dated: / )/
By:
Dated: 5” - i) c::- .q
By:
Dated:
WORDEN, WILLI.4.hIS, RKHNOTuD& ELLIS
A Professional Corporation
Attorney for City of Carlsbad
COLWTY OF S.43 DIEGO
,I,‘. i *
j ‘-. ;!i~~;~‘;- ,;. ’ T it, .&y&/i‘, L..&” / c ,.-. c lCLLJXY DEW STE, l2ep-k~ County Counsel
\VHITE & BRIGHT
Attorney for Coast li*zste Xlanagement, Inc.
F:\CUEMS;CTTC;U)\CO.~ST~VST~~~~~TTC.~6.jy5
.Fl?.‘.iL SE-I-I-LE~EM AGREEMEM 2s
- -_ - - - - --
- - ACXNOWLEDGEMENT
STATE OF CAJIFORNIA ; ss.
COUNTY OF SAN DIEGO )
On August 5, 1997 , before me, Aletha L. Rautenkranz, City Clerk
(here insert the name and title of the officer), personally appeared Claude A. Lewis, Mavor I personally known to me @%=mti@ xzlnecxc9Kae*iti sa&&&~~~~&~s& to be the person&) whose name& isp*zti subscribed to the within instrument and acknowledged to me that he/&q&&q executed the same in his/%e?=$Bx authorized capacity#QX2Z$, and that by his/i signature(s$ on the instrument the person(=), or the entity upon behalf of which the person(e acted, executed the instrument.
WITNESS my hand and official seal.
ACKNOWLEDGEMENT
STATE OF CAJIFORNIII ; ss.
COUNTY OF SAN DIEGO )
On August 5, 1997 before me, Aletha L. Rautenkranz, City Clerk
(here insert the name and Title of the officer) personally
appeared D. Dwight Worden, Attornev for the Citv of Cailsbad I personally known to me (arx$43Q~*dcx~r~@3&&~43&z~*~-&
szhissW~~a@ to be the person# whose name&# is/- subscribed to the within instrument and acknowledged to me that hej&q&&ce~ executed the same in his-mix authorized capacity&j=@, and that by his/ti=$* signature(a on the instrument the personw), or the entity upon behalf of which the person(=) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public City Clerk
F:\CLeMS\CTTC;UXCOAST~V~~(E?rl\CTTC.~6.395
FINAL SETTLEME3-r AGREEh[E?-4T 29
.~ _. - _ -: 135
- -.. --
- - -
ACKNOWLEDGEMENT
STATE OF CAJIFORNIA )
COUNTY OF
before me d&noi/ /%e~o$$r;I%Lic tie of the office ), d
personally known to me (or prbved to me on the basis of I
satisfactory evidence) to be the person(s) whose name(s)@- subscribed to the within instrument and acknowledged to me that
~~~~s~xe~~~e~h~~eb~~~~~~~~ authorized
instrument the person(s),
,'t- - --a--- signature(s) on the or the entity up person(s) acted, executed the instrument.
WITNESS my hand and official seal.
ACXNOWLEnGEMENT
STATE OF CAJ,IFORNIB ) ) ss. COUNTY OF SAN DIFGO )
Ai,64%7- s, /997 before me &he 5. t/L75 cti (here'?nsert the name and kitle of the officer), personally appeared LAylR6E(C& E. FPrCR fl I personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
F:ICLIE~S\CTiC.U)\COr\ST~~ST~~~~IF:~T,CI’ITAD6.3115 FIX-U SETTLE~0Eh-T AGKEELIEX 30 &
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E,A:sIS OF BEARING: SaLlO WSTE -mhHSFER LEASE
SITE SuWEY per hIdNICl%L
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EPARTMENT OF GENEFiAL SERVICES
FACILITY AND REAL PRO?3TY DNISION
CCiJmY OF SAX. DIECO
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LECPKI
m -iJ-lF Soil Saz-jle Locztlo;!
.- By: F.E. BAST, . _-
- - _.
_-- -
- - - : I
-’ -
- ATTACHMENT D
No. 97-191 TUESDAY, JUNE 24, 1997 June 24,1997
AMENDMENT TO RESOLUTION .NO. 77 ESTABLISHlNG SOLID WASTE *
MANAGEMENT AGREEMENT FEE AND REVISING SOIJD WASTE DISPOSAL FEE
SCEtEDUIX
ON MOTION OF Supervisor cm
S later , be it resolved as follows:
9 seconded by Supervisor
WEIXREAS, Section 68.513 of the San Diego County Code authorizes this Board to
establish fees for the use of designated County Solid Waste Facilities, and
NOW, THEREFORE,
BE IT RESOLVED as follows:
The following fee schedule is hereby established:
I. ISPOSAL FEES - EFFJKTWE MAY 1.1997
: A. GENERAL
Fees for the disposal of Solid Waste shall be based upon the actual weight of waste
delivered at the Otay, Rarnona and Sycamore Landfills. A minimum fee will be
assessed on all Charge-by-Weight loads. At the Borrego Landfill where scales are not
available, fees shall be a flat rate based on historic averages for various vehicle types.
At all kmifills, fees shall be set rates for passenger vehicles, pickup trucks, or towing
vehicle and small trailer* combinations, whose loaded weight is less than 6,000
pounds for Gen& Refuse and 5,000 pounds for Clean Green material. Any vehicle,
or combination of vehicles, whose loaded weight exceeds 6,000 pounds for refuse and
5,000 pounds for clean green material will be charged by weight.
*(trailers measuring no more than;’ long X 5’ wide X 3’ high)
PN,OVR STA’mN GATE m? !sF.cnoy 1-C)
The fees assessed for refuse delivered to the Palomar Transfer Station. (Leased
Facility).
6/24/97 (77) EXMNT. “D
- ._.
Fee Schedule Page 2 June 24, 19%’
CTION 1-D)
The fees assessed for refuse delivered to County of San Diego landfills.
. T, CONTmR STATION FEES (Sectlu
The fees assessed at the County of San Diego rural container stations for residential
refuse originating in the local service areas.
m GRJ4W/CIJZ.AN WOOD WASTE FEES
Fees assess4 for the disposal of certain plant and wood wastes which are suitable for
mulching and not contaminated with other refuse. Clean green and clean wood waste
loads may .be mixed. In the event of mixed loads, it is the responsibility of the
customer to unload each type of waste at the appropriate recycling area or tipping
deck on the landfill.
. I SNG FEES (SgamJQ
Fees asses&, in addition to the disposal fee, for specific items which require special
handling for landfill disposal.
STR4TlVE FEES (Section IIQ
Fees assessed, in addition to the disposal fee and separate from Special Handling Fees,
to offset County stti time required for various non-typical items or events.
B. DETERMIEYATION OF FEES
1. TON_NAGE
Mixed Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $38.00 per ton (mar)
Clean Green or Clean Wood Waste . . . . . . . . . . . . . . . . S35.00 per ton
2. DISCOUNT
a. Direct Haul Volume Discounts
Discount rates will be offered to those companies with deferred
accounts who direct haul to the County landfills. The $38.00 per ton
base fee will be reduced as the Company’s total annual tonnage
delivered to the County’s system increases.
b. Transfer Truck Discounts
Discounts will be offered to transfer trucks originating from permitted
transfer stations (other than the Palomar Transfer Station and the
Interior Zone hauling contract.)
-~ - _- - -
-
.-
- -\
- Fee Schedule Page 3- June 24, 1997 -
C. _Solid Waste Management Agreement Discounts
Discounts will be offered to collectors that enter into Solid Waste
Maxqement Agreements with the County for waste direct hauled to
County landfills.
3. CARS (See Section VII, part E, “Vehicle Detinitions”)
Set rates have been established for Passenger Vehicles, Pickup Trucks, or
towing vehicles and small trailer combinations, whose loaded weight is less
than 6,000 pounds for General Refuse and 5,000 pounds for Clean’ Green
material. Any vehicle, or combination of vehicles, whose loaded weight
exceeds 6,000 pounds for refuse and 5,000 pounds for clean green material
will be charged by weight.
4. FLAT
In all cases where the actual weight of the refuse entering the landa for
disposal cannot be determined, flat rate fees (derived as the product of the
appropriate tonnage rate times the average weight of loads for each category
of vehicle or container) shall be assessed.
C. PALOMARTRANSFER STATION GATE FEE
All Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S38.00 per ton
D. LANDFILL FEES
The Fee for the disposal of residential, commercial, demolition, and/or industrial
waste in County of San Diego Solid Waste Facilities is %38.00(max) per ton. A
minimum fee of $15.00 for General Refke and $8.00 for Clean Green will be assessed
on all Charge-by-Weight loads.
NOTE: At the Borrego landfill where scales are not available, flat rates will be
assessed for ‘all vehicles. Flat rates will be assessed at Sycamore, Otay and Ramona
when scales are inoperable.
. - -. ._ _- - _- - - /w
- -
- -
Fee Schedule Page 4- - - - June 24, 1997
GER vF.HJW PICK’IJP TNCKS
General Clean
Refuse Green
a. Minimum Load* % 5.00 $5.00
b. Passenger Vehicle % 10.00
whose loaded weight is
less than 6,000 pounds for refuse
and 5,000 pounds for clean green
% 8.00
c. Pickup truck, or towing vehicle $ 15.00 % 8.00
and small trailer combination
whose loaded weight is less
than 6,000 pounds for refuse
and 5,000 pounds for clean green
At those landfills operating an on-site recycling facility, passenger cars and pickup
trucks carrying 100% designated recyclable material from residential sources only
will not be assessed a disposal fee.
* Minimum Load : Any vehicle whose load is contained in not more than 3
standard 32-gallon trash cans or bags, will be assessed the minimum load fee.
2. D~~RREDACCOUNTS-D~RECT~~~JVO~;UMEDISCOUNTS
Solid waste transported directly to the landfills in vehicles other than transfer
trucks.
Base tipping fee:
Deferred Accounts: . ear &vered to the CQU.@I , s Sol id Wastw
l-30,000 tons/year
30,001-200,000 tons/year
X00,000 tons/year
$36 per ton
$32 per ton
$30 per ton
NOTES: 1) The differential rate applies to the tonnage a waste company with
a deferred account direci hauls to a County landfill. .2) Tonnage delivered
to Palomar Transfer Station will be included when calculating total
tonnage for the purposes of dete rmining the discount rate for direct haul.
- _- -~ - _- - - /Y3
- _ - ,A -
-
Fee Schedule Page 5 - June 24, 1997
3) Adjustments willbe made according to the administrative policies and
procedures for tipping fees.
3. m w#$TE MANA(%MI%T AGCOLLECTORS -
PmCT HNJz DISCOUNTS
Solid waste transported directly to the landfills in vehicles, other than transfer
trucks, by collectors that have entered into a Solid Waste Management
Agreement.
Discounted Tipping Fee: $32.00 perton
NOTE: In the interim pericd until Solid Waste Management Agreements are
approved by the Board of Supervisors and during the period allowed for
preparing and entering into the Agreements, companies holding a valid
County collector permit shallbe eligible for the discount.
4. -
Solid waste transported in transfer trucks originating from permitted transfer
stations other than the Palomar Transfer Station*
a. Fee at Sycamore, Otay, Ramona and Borrego landfills for permitted
haulers hauling from a permitted transfer station $25.00 perton
b. Fee at Qtav landfill for permitted haulers hauling from permitted transfer
station mer than 25 miles r& from the Otay lana
$17.00 per ton
*Excludes Interior Zone Rural Container Stations
CKS FROM PALOMAR TRANSFER STATION*
Solid waste transported in transfer trucks originating from Palomar Transfer
Station.
. day delivered
l-325
326-800
>800**-
,3 8.00 per ton
‘% 5.50 per ton
% 4.75 per ton
_-
-- - *,- - - - -
-
Fee Schedule Page 6 - . June 24,1997
NOTE: The first 325 tons per day are always charged $8.00 per ton. The
next 475 tons are charged $5.50, etc. Adjustments will be made according to
the administrative policies and procedures for tipping fees.
* Rates for Palomar Transfer Station are contingent on the City of Carlsbad
and the County of San Diego successfully negotiating a settlement
agreement and a lease agreement..
** Valid only ifwithin all permit limits and conditions.
6. ed QI~ $3 8/tan,)
In all cases where the actual weight of the refuse entering the landfill for
disposal cannot be determined, the following flat rate fees shall be assessed:
a. Mechanical Packers:
A
B
C
D
E
F
G
Rate
14 cubic yards or less
15 - 19 cubic yards
20 - 24 cubic yards
25 - 29 cubic yards
30 - 34 cubic yards
3 5 - 39 cubic yards
40 - 49 cubic yards
b. Compacted roll-off:
A
B
C
D
E
F
G
14 cubic yards or less
15 - 19 cubic yards
20 - 24 cubic yards
25 - 29 cubic yards
30 - 34 cubic yards
35 - 39 cubic yards
40 - 49 cubic yards
_- .
1 Reb
s107.00 $ 99.00
s120.00 s 111.00
S228.00 % 210.00
S258.00 % 238.00
s301.00 S 278.00
s320.00 s 297.00
s370.00 s 340.00
$131.00
s164.00
$199.00
$225.00
$23 1 .OO
S235.00
$241.00
Clean
Greens/Wood
$ 121.00
% 152.00
$ 183.00
$ 208.00
$ 212.00
$ 216.00
$ 223.00
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Fee Schedule Page 7
-- -
. - June 24; 1997
c. Un-compacted roll-off (drag-on boxes):
Clean
GsKkRateSize All -
A 20 cubic yards or less
B 21 - 30 cubic yards
C 3 1 - 40 cubic yards
D 41- 50 cubic yards
S236.00 $ 216.00
S163.00 s 150.00
S185.00 $ 170.00
S23 1 .OO s 212.00
d. Transfer Trucks $25.00 per ton (See Section I-D, Part 3a)
Code Rate A11 Wise
BLUE A
BLUE B
55 - 60 cubic yards
6 1 - 70 cubic yards
$289.00
$341.00
BLUE C 71 - 80 cubic yards $394.00
BLUE D 81 - 90 cubic yards $446.00
BLUE E 91 -100 cubic yards $499.00
BLUE F 1 OO- 109 cubic yards $551.00
BLUE G 110 cubic yards or more $604.00
e. Transfer Trucks S17.00 per ton (See Section I-B3b)
&ate Size 1 Re&
BLUE A
BLUE B
BLUE C
BLUE D
BLUE E
BLUE F
BLUE G
55 - 60 cubic yards
61 - 70 cubic yards
71- 80 cubic yards
81 - 90 cubic yards
91-100 cubic yards
loo-109 cubic yards
110 cubic yards or more
$193.00
$228.00
$263 .OO
$298.00
$333 .oo
$368.00
$403.00
.
- .- - :
Fee Schedule Page 8 -
f Other refuse collection vehicles:
Per cubic yard of truck capacity
(based on $38/tori))”
Per cubic yard of truck capacity
(based on $25/tori
see Section I-D, Part 3a)
Per cubic yard of truck capacity
(based on $17/tori
see Section I-D, Part 3b)
7. OTHER VF.HlCI <ES - FLAT RATES
a.
b.
C.
d.
e.
f.
h.
Modified pickup trucks
and modified trailers
Oversize Loads in pickups
and trailers
Trailers over 8’ up to 12’
bed length
Trailers over 12’ bed
length and towed by any
size trucks
Medium trucks and vans up
to 12’ bed length (two
axle vehicles)
Heavy trucks and vans over
12’ bed length
(two axle vehicles) .
Trucks consisting of 3 axles
Any tractor/trailer comb.
(5 axle.rig) or 3-axle truck
in comb. with trailer (pup)
_- --_
--
Refuse
$ 8.00
% 5.25
s 3.50
S25 .OO
S25 .OO
$31.00
$50.00
$51.00
$96.00
$331.00
$605.00
-
June 24, 1997
Clean
eens/Wood
% 6.00
S 6.00
S 6.00
Clean
-
$ 12.00
% 12.00
% 28.00
s 47.00
s 47.00
% 88.00
% 304.00
% 558.00
P-7
__:.
- -- Fee Schedule Page 9
-
June 24, 1997
E. RURAL CONTAINER STATIONS _
The rural container stations accept solid wastes and recyclable items from local service area
residential sources only.
Mechanical unloading of any vehicle will not be allowed at rural container sites.
1. ACCESS
Access is limited to the following vehicles carrying residential wastes and/or recyclable
materials for which designated .cokction containers are provided (additional size and
weight restrictions may apply at some facilities due to operational limitations).
a. Passenger vehicles (see Section VII Definitions, Part E Vehicle Definitions).
b. Pickup trucks (see Section VU Definitions, Part E Vehicle Definitions); also
includes flatbed trucks with beds that do not exceed 6’ in width or 8’ in length.
This excludes vehicles having a GVW rating above 13,000 lbs.
C. Vehicles larger than pickup trucks having a verifiable GW rating of 15,000 lbs.
or less, will be allowed access only when containing no more than four (4)
standard 32-gailon trash cans or bags of refuse and/or recyclable items.
d. Trailers 8’ bed length or less.
e. Trailers greater than 8’ and less than 12’ in bed length will be allowed access only
when containing no more than four (4) standard 32-gallon trash cans or bags of
refuse and/or recyclable items.
f Small flatbed or stakebed trucks measuring 6’ X 8’ X 2.5’ (120 cubic feet) or less
will be charged the pickup rate. If sideboards exceed 2.5’ (307, the vehicle will
be charged the modified pickup rate.
2. S A RURAL CONTAINER STATIONS
(see Section VII Def&tions, Part E Vehicle Definitions)
A $2.00 per standard 32-gallon bag or container fee will be assessed for all vehicles having
bagged or container&d waste or clean green materials. The combined bagged or
container fee shall not exceed the following set rate fee for the transport vehicle (loose
loads, not in bags or cans, will be charged the appropriate set rate):
- _-
- _ -
Fee Schedule Page 10 June 24, 1997
a. Passenger Vehicles
b. Pickup trucks and small
trailers
d. Modified pickup trucks
and modiied trailers
e. Oversize Loads in
pickups and small trailers
General
Refuse
Clean ’
Green
$ 10.00 S 8.00
, % 15.00 S 8.00
% 25.00 s 12.00
% 25.00 s 12.00
Note: Trash cans or bags larger than the standard 32-gallon size will be charged $3.00
each (not to exceed the flat rate for the vehicle).
3. RECYCLABLE
Recyclable materials (except Clean Green, Clean Wood Waste and White Goods) for
which de+ated collection containers are provided will not be charged a disposal fee. In
addition to the disposal fee, an Administrative Fee will be charged for each White Good
item (see Section III Administrative Fees, Part C White Goods).
All recyclable materials (except White Goods) shall be of a size which will fit into the
container provided and must be loaded into the appropriate container by the customer.
Customers may place White Goods on the ground in the appropriate area. All refrigerator
doors must be removed by the customer.
4. VARIOUS RESTRICTED WASTES
The following solid wastes may not be disposed of at a rural container station and must
be disposed of at an approved recycling center or landfill:
a.
b.
C.
d.
;
it:
Any item which is subject to a Special Handling Fee or which requires a Hazardous
or Non-Hazardous Waste Manifest
So& rocks, stumps
Brush from land clearing (public or private)
Tree trimmings from commercial or public agency tree trimming projects
Yard or wood waste which exceeds 5” in diameter or 5’ in length
Construction wastes _
Agricultural wastes
Demolition wastes
- _-
- _ - - -
Fee Schedule Page 11 - - - June 24, 1997
I. Industrial and commercial wastes
i Animal waste products (including manure)
k. Refuse resulting from a public safety or nuisance abatement
1. Tires unless cut or shred to particle siies no larger than 12”
Items disposed at a County landElI in the following categories are subject to special fees as speci&d. The
fee will be in addition to the disposal charge with a maximum special handling fee not to exceed
$150.00/vehicle except as specified in Parts A and B below.
Forty-eight hour advanced scheduling is required for Items A-F. Call the Solid Waste Office to schedule
an appointment. A non-hazardous waste manifest may be required for some items.
A. LARGE ITEMS:
Any single item which due to its siie, weight, volume or other physical characteristics requires
special handling and/or equipment or which presents a significant health, safety or operational
problem.
100 cu. ft. and under ............................................. S 50.00/lead
Over 100 cu. ft. ................................................. s O.SO/cu.ft,
B. CONTAINERIZED SOLID lNDUSTRIAL WASTE: .’
Containerized non-hazardous solid industrial waste (i.e., solid&d resin, tar, graphite dust, etc.)
1. CONTAINERS UP TO 24 GALLONS . . . . . . . . . . . . . . . . . . . . . . . . . . S l.OO/each
(or up to 3 cubic feet)
2. CONTAINERS 25 GAL. TO 50 GAL.. . . . . . . . . . . . . . . . . . . . . . . . . . % 500/each
(or 3 to 7 cubic feet)
3. CONTAldERS 55 GALLONS OR Gl!tEATER . . . . . . . . . . . . . . . . . . . S lO.OO/each
(or greater 7 cubic feet)
C. NON-CONTAINERTZED SOLID INDUSTRIAL WASTE . . . . . . . . . . . . . . S 50.00/lead
Loads wnsisting of more than 10 cubic yards of food waste (> 50% solids) or non-wntainerized
non-hazardous industrial waste.
/5-c; .-
._.. ,‘ -
- -
Fee Schedule Page 12 June 24, 1997
D. DECONTAMINATED BIO HAZARDOUS WASTE* . . . . . . . . . . . . . . . . ..%50.00/load
Loads consisting of 10 cubic yards or more of decontaminated biohazardous waste.
* Loads containing less than 10 cubic yards of decontaminated biohazardous waste will not
be assessed the $50.00 Special Handling Fee.
E. NON-FRIABLE ASBESTOS* . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S 50.00Iload
Loads consisting of 15 cubic feet or more of Non-friable asbestos containing Non-Hazardous
waste material.
* Loads containing less than 15 cubic feet of Non-Friable Asbestos containing material will
not be assessed the $50.00 Special Handling Fee.
F. WASTE WATER TREATMENT BY-PRODUCTS . . . . . . . . . . . . .’ . . . . . . . % 50.00fIoad
Loads wntaining waste water treatment facility by-products such as sludge (biosolids), grit and
bar screen materials.
Waste water treatment facility by-products containing less than 50% solids require approval of
County Solid Waste
Enforcement Agency
Services, the Regional Water Quality Control Board: and the Local
G. ANIMALS: r
Persons engaged in permitted dead animal removal services are subject to Chapter 8, Section
62.810 of the San Diego County Code of Regulatory Ordinances. This requires that such dead
animals be disposed of at a reduction/rendering plant and therefore will not be accepted at County
landElls.
Dead animals which are not subject to San Diego County Code as referenced above will be
accepted.
4. Any dead animal that weighs in excess
of 250 lbs. and less than 500 lbs. or
any combination of smaller dead animals
in excess of 250 lbs. and less than“
5001bs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..%25.00fload
5. ’ ._ Any dead animal or load of dead
animal(s) 500 lbs or more. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S 50.00/lead
- -- - .
- -
-- Fee Schedule Page 13 June 24,1997
H. TREE STUMPS* . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . % 25.00ktump
any tree stump more than 5 feet in any linear dimension in mixed loads and disposed in the general
refuse area.
* Tree stumps separated into clean green loads without contamination and less than 8 feet
in any linear dimension will be charged the Clean Green fee only.
L HARDTOHANDLEMATERIAL. . . . . . . . . . . . . . . . . . . . . . . . . ..a..... S 50.00fload
Loads containing more than 10 cubic yards of straw, metal fence, car seats, mattresses and/or
springs, or similar hard to handle materials.
J. LARGE POLES/PIPES, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S 15.001each
Poles, pipes, tree bunks, logs, bridge pilings, etc. over ten (10) feet long, or in excess of 12 inches
in diameter.
K SPECIAL DISPOSAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S 50.00/lead
Any item requiring cratering, immediate burial or other special handling for health and safety
reasons.
III. ADMIN-ISTRATIW FEES
Administrative fees provide fWdiig for County staff time and processiig and are separate from Special
Handling Fees (Section II) and Fee Pr ocessing Charges (Section IV, Part B and C). Items in the following
categories are subject to the Administrative Fees. The fee will be in addition to the disposal fee and
separate from Special Handling Fees/Surcharges, if applicable.
A. NON-HAZARDOUS/SPECIAL WASTE MANIFEST . . . . . . . . . . . . . . % 50,00/manifest
Loads of special wastes that require special waste manifests or appointments (i.e., certified non-
infectious wastes and cert.&d contaminated soil acceptable for disposal, etc.).
B. STAND-BY FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . % 50.00/hour
6.
7.
Loads requiring County personnel to oversee disposal operations, as determined by the
County of San Diego, for safety, health, and/or operational reasons: minimum charge 1
hour.
Vehicles found transporting unacceptable materials to the landfill and required to remain
on-site for regulatory agency resolution: minimum charge 1 hour.
-
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.- Fee Schedule Page 14 June 24, 1997
-. C.
D.
: E.
F.
WHITE GOODS:
Commercial disposal of White Goods is not authorized. Residents may dispose of White Goods
only at those 1andEhs operating an on-site recycling facility. In addition to the disposal fee, an
Administrative Fee will be charged for each White Good item. All refrigerator doors must be
removed by the customer.
8. L2.dfUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S 20.00 each
9. Rural Container Stations . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . S 5.00 for one
S 20.00 for each additional
FEE FOR MISREPRESENTATION OF WASTE ORIGm:
To comply with State mandates, all Solid Waste Facility customers shall provide information, upon
request, on the source of the waste being hauled to a County facility. The information includes
the source city of the waste that is being hauled and the trash route for trash industry vehicles.
Landfill or bin site access may be denied to facility customers that refuse to comply with the
County’s requirement to obtain source of waste information.
If the waste hauler or customer misrepresents the or&in of the waste, an administrative fee wiU
be assessed. For each of the first three offenses, the fee will be ten (10) times the tipping fee
. assesed that vehicle, not to exceed S 1,000. After the first three offenses, the fee will be S 10,000
for each subsequent offense.
MANDATORY RECYCLING:
A table containing Administrative Fees and the implementation schedule for the Mandatory
Recycling Ordinance may be found in Section V. of this Fee Schedule.
. UNCOVERED LOADS* . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . % 10.00 per tarp*
Charges will be assessed for those vehicles entering County of San Diego Solid Waste Facilities
with uncovered or partially covered loads. The fees will be used to offset the costs of tarps and
other litter control activities.
Any customer assessed this fee shall receive’tarps at the disposal site (iavailable) and shall install
the tarps to completely cover the load as defined in Section 23 115 of the California Vehicle Code
before proceeding to the appropriate unloading area. In the event that the load or the vehicle is
too large for the provided tarp to cover, additional fees shall be assessed and additional tarps
provided to ensure that no littering occurs with@ the disposal facility.
* Nets or other suitable cover materials may be issued in lieu of tarps
.-
_.. - - _
- Fee Schedule Page 15 - June 24, 1997
6. TIRE FEES:
Landtilling of waste tires is prohibited unless tires are reduced in volume by shredding or other
methods approved by the California Integrated Waste Management Board.
Whole tires are not accepted at the Rarnona, Borrego, or Sycamore landfill, or any County
operated Rural Container Station. Whole tires for recycling are accepted only at the Otay landjjll.
Homogenous loads of tires will be charged by the ton.
1. Standard car and truck tires
up to and including 16.5” inside
tire diameter
S 3.00/tire or
s300.00/ton
2. Inside tire diameter 17”- 24.5” S g.OO/tire or
(highway/cargo type tires) s3oo.oo/toq
3. Mixed load of car & truck tires
with highway/cargo type tires
S 7.00itire or
!GOO.OO/ton
4. Inside tire diameter > 24.5”
(idustria.l/construction/off road)
S200.00hire or
S400.00/ton
f
5. VOLUME REDUCED TEE FPFSI
a. Passenger vehicles, pickup trucks, and towing vehicle and small trailer
combinations, whose loaded weight is greater than 6000 pounds, and is comprised
of 100% tires that have been reduced in volume by shredding or other methods
approved by the California Jntegrated Waste Management Board, will be handled
at County landfills for S16/TON.
b. .All other vehicles will be charged the standard disposal fee.
H. HAZARDOUS WASTE
Customers who dispose of hazardous or other unacceptable waste shall upon notification be
required to retrieve the waste, if appropriate, within 48 hours and arrange for subsequent proper
disposal. In addition, an Administrative Fee will be charged:
The Administrative Fees below pertain to incidents occurring within a single calendar year:
First occurrence . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .: . . . . . . . . . . . . . . $50.00
Second occurrence . . . . . . . . . . . . . . . . . . . . . . . . . . .-. . . . . . . . . . . . . . . . . . . . . . . . $100.00
Additional occurrences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $200.00
/54/ _- _- - _-
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- Fee Scliedule Page 16 June 24, 1997
If, for any reason, the waste cannot be rekased to the customer, or the customer does not
voluntarily remove the waste, proper disposal of the waste will be arranged. In addition to the
above fees, customers shall be subject to the payment of 100% of all costs incurred by the County
for labor, supplies, packaging, transportation, and disposal of the waste.
Payment of the fees specified in this section shall not prohibit the referral of cases to an
appropriate agency for possible civil and/or criminal actions.
I. LATE UNLOADING
Vehicles unloading on the Solid Waste Facility in excess of 30 minutes after the posted closing
times will be charged the Administrative Fee of $50.00 per hour with a minimum 1 (one) hour
charge.
IV.
Section 68.515 of the San Diego County Code of Regulatory Ordinances sets the County’s deferred
payment account policy, as well as a cash payment system. At the discretion of the Director, personal
or business checks, point of sale transactions (automated account debit transactions) and credit cards may
also be accepted at the landfill for payment of fees. To ensure the County’s receipt of funds, the Director
may implement a check guarantee system at the 1andfZls as well as a point of sale and credit card system.
The method of payment for fees accepted at the rural container stations will be cash only.
,’ The Director, at his/her discretion, may waive the liquidated damages assessed for late payments for
governmental agencies and in cases of the County’s administrative error.
A. DEFERRED PAYMENTS:
Any person desiring to establish a deferred payment account for use at County Solid Waste
Facilities will be able to do so upon it being established, to the satisfaction of the Director, that
such applicant’s credit rating is sati&ctory and that sufficient security is posted. The requirement
to post a security is waived for local, state and federal governmental agencies as well as public
utilities.
The Director has determined that the “st@cient security” requirement referred to in this section,
may be met by posting a security whose value is at least three times the average monthly charges
of the deferred payment account customer, as determined by County personnel.
Deferred payment accounts shall be invoiced monthly and are due.and payable upon receipt of
statement. Payments not received prior to the next statement date which is the first day of every
month, will be considered delinquent.
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.-
Fee Schedule Page 17 June 24,1997
B. DEtiQUENCY AND RELATED CHARGES:
Monthly late charge for delinquent Deferred Payment accounts will be equal to $50.00 plus 1%
per month of the principal unpaid balance as liquidated damages.
If a County Solid Waste Facility customer is delinquent in payments for any reason, the Director
may require that customer to pay cash for subsequent transactions. If necessary, at the discretion
of the Director, a customer who is delinquent in payments for any reason may be denied access
to the County landfills or bin sites. Examples of delinquent accounts include:
1.
2.
3.
4.
deferred payment accounts not paid in till prior to the next statement date, which is the
first day of every month;
checks that are returned unpaid for any reason;
non-deferred big customers whose suspended transactions are not paid in full within 30
days of the transaction date;
mandatory recycling ordinance administrative fee surcharges not paid in full within 60
days.
C. PROCESSING FEES:
1. Processing fee for checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S 25.00/each
accepted in payment at any processing
Solid Waste Facility which are
returned by the bank unpaid for
any reason.
v. .
2. Processing fee for uncollected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S 25.00/each
suspended transactions which have transaction
not been paid in full within 30 days
after the transaction date. This
fee applies to non-deferred
billing customers.
3. Processing for duplicating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . % 5.00/each
ticket or document
ATORY RJXYCLING IN EFFECT AT COUNTY DISPOSAL
FACUTf-R
Mandatory recycling shall be in effect at all Courrty disposal facilities. : The disposal of designated
re&able materials from residential, commercial, and industrial sources is prohibited. A recycling guide
is available from the fee collectors.
.- k% _- :
. - -_ . .
Fee Schedule Page 18
A.
B. COMMERCIAL HAULERS
C.
D.
f
- -
CITIZEN HAULED WASTES
June 24, 1997
Citizens hauling their own refuse in cars, vans and pick-up trucks are prohibited from disposing
of designated residential recyclable items and yard waste with refuse. At all disposal facilities,
wllecrion bins are available for designated recyclable items and drop-off locations are provided
for yard waste. Citizens hauling their own re&se to County disposal facilities who fail to properly
separate and deposit their recyclable materials in accordance with the Solid Waste Ordiice and
the rules and regulations of the receiving facility, will be subject to a $15 administrative fee.
Commercial haulers disposing of waste at County landfills are prohibited from disposing of
designated residential, commercial, and industrial recyclable items.
COLLECTION AND SEPARATION REQUIREMXNTS
Waste haulers operating in the unincorporated areas of the county are required to provide their
customers with containers and collection service for designated recyclable items, in accordance
with the regional implementation schedule. Waste generators are responsible for separating
designated recyclable items from refuse prior to refuse collection.
DESIGNATED RECYCU.BLE MATEXIAIS
1. RFCYS
Alurninurn, glass bottles and jars, newspaper, plastic beverage bottles, tin and bi-metal
cans, White Goods, and yard wastes.
2. COMMEKUL RJXYCLABJ GE I?7;MS
a. From office buildings of more than 20,000 square feet used for commercial,
governmental, or educational purposes: aluminum, corrugated cardboard,
newspaper, and office paper.
b. From hospitality f&&lit& which includes all restaurants and taverns, and hotels and
motels with eating and drinking establishments: alum&m, corrugated cardboard,
glass jars and bottles, pIa& beverage bottles, tin and bi-metal cans, and white
goods.
. . 3.
Industrial loads con&sting of 90% or more of any one of the following materials: asphalt,
concrete, dirt, land clearing brusk sand; or rock.
. d-7 .-
.- - . - --
- Fee Schedule Page 19
E.
VI.
A.
B.
VII.
A.
B.
MANDATORY RECYCLING IMPLEMENTATION
June 24, 1997
Disposal of designated recyclables is prohibited. In the event that citizens or commercial haulers
mix designated recyclables with solid waste for disposal, the following administrative fee
surcharges may be imposed in accordance with County Code.
Citizen hauled: S 15.00 Admin. Fee
Commercial haulers: $100.00 Admin. Fee
COUNTY CODE AND CALIFORNIA VEHICLE CODE
Section 68.505, Chapter 5 of the County Code and Sections 23 114 and 23 115 of the California
Vehicle Code are incorporated by this reference.
OFFENSIVE MXGUAGE OR BEHAVIOR
Any person using obscene, offensive or threatening language or behavior toward disposal site
personnel in the performance of their duties may be denied entrance to or use of a Solid Waste
Facility for a period of time as determined by the Site Manager.
CLEAN FILL:
Clean earthen fill material quali@ing for use as cover soil must consist only of soil and/or material
less than 6” in any dimension. If accepted, clean fill disposal exemptions require from one (1) to
five (5) days pre-approval by the Solid Waste Office depending on the quantity and need of
materials to be delivered. Soil analysis may be requested of the owner or transporter to help
determine the appropriateness of the soil for use as cover material.
CLEAN GREEN:
Any load wntaining “green” materials only: Greens include all leaves, grass clippings, shrubbery,
brush, tree trunks, limbs, and branches that are appropriate for mulching and wmposting. Palm,
cactus and some succulents are not suitable for mulching.
- _-
-- -
’ . -
? Fee Schedule Page 20
_ -. -
June 24, i997
_. C. &AN WOOD WASTE:
Any load wntaining wood waste only. Wood waste includes lumber, pallets, wood blocks, fencing,
and shavings, that are appropriate for mulching and wmposting. Wood waste excludes treated or
painted wood and shingles.
D. DEMOLITION MATEI&kL (Rurd Container Stations Only):
Any load wnt&ing 2oo/o or more heavy, bullcy, dense, noncompressible or similar materials, will
be classified as demolition waste. This includes but is not limited to: concrete, masonry, asphalt,
all land clearing materials, cobblestone, metal, plumbing Gctures and pipe, electrical fixtures,
materials used in the construction or razing of structures (including fences, patios, storage sheds,
or decking), gravel, sand, clay products.
E. VEHICLE DEFINITIONS:
The final determination of fees for all vehicles will be made by the fee collector at the disposal
facility when visually inspecting the load. Any vehicle, or combination of vehicles, whose loaded
weight exceeds 6,OCO pounds for General Refuse and 5,000 pounds for Clean Green material will
be charged by weight. Vehicles weighing less will be assessed the set rate by vehicle category.
1. m (include but are not limited to): Passenger Car;.Station
Wagon, Utility Vehicle or Minivan. Loads must be entirely contained within the vehicle
or the vehicle will be charged the set rate for a Pickup.
2. CK-UP TRUCK; (include but are not limited to): Standard bed pickup truck or full-
size van.
3. TRAIfiEB; A trailer measurin g no more than 8’ long X 5’ wide X 3’ high.
4. MODIFIED PICKUP TRUCK/ 0-D LOAD: A pickup truck that has been
altered or modified in any way that increases the load carrying capacity of the vehicle,
including, but not limited to: sideboards, tool boxes, lumber racks, camper shells or the
makeup of the load itself.
5. ~ODTFJt?D m OVJYRSI7;ED, J.OAD: Any trailer with a bed measurement or
load larger than 8’ long X 5’ wide X 3’ high.
6. In the event that any vehicle or trailer does not conform
with the description or intent of vehicles qualifying for set rate fees, the Site Manager, or
designee, has the authority to charge that vehicle by weight. -
-_ - _
. A. -’ -
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Fee Schedule Page 2 1 June 24, 1937 -
7. R TRUCK: A vehicle used to perform a re-haul fimction by haul&g large volumes of refuse that has been transferred to the vehicle from multiple collection vehicles
for economic hauling.
To qualify for the Transfer Truck rates established herein, the vehicle must contain a
minimum of 15 tons of refuse, and employ a mechanical unloading system.
Transfer Trucks must be permitted and carry a current, unrevoked decal issued by the
Director.
. In general, roil-off transporters or roll-off transporters with mdem trh are not included in this definition. Such vehicles used for transport of waste processed through a
permitted transfer station may be decaled as a transfer truck at the discretion of the
Director.
F. WHITE GOODS:
Any of the folIowing househoId appliances: dish washers, stoves, refrigerators, freezers, clothes
washers, dryers, and hot water heaters.
VIII.
The following fees are established for Collector Permits and Transporter Permits.
; A. COLLECTOR PERMIT FEES
Fee/Vehicle
1. WW PlXMIT~ (Class “A” or Class “B”)
InitiaIFiigFee. . . . . . . . . .‘. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $100.00
Collector Permit AreaFee (each permit area) . . . . . . . . . . . . . . . . . . . . . . . . . . $25.00
Decal Fee (each truck) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $150.00
2. m, PERMITS (Class “A” or Class “B”)
FiigFee ....................................... ..t..........$25.0 0 Collector Petit Fee (each permit area) .............................. $25.00 Decal Fee (each truck) .......................................... $150.00
B. TRANSPORTER PERMIT FEES
FeeNehicle
1. NEWPERMEE .
FiigFee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $100.00
TransporterPermitFee . :. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-. . . $100.00
DecaIFee (each truck). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -. . . . . . . $150.00
w - _-
-- -- - - _ * ,’
-
_.
-- -
Fee Schedule Page 22 June 24; 1997
2. RENEWAL FiigFee .................................................. ..%25 .oO
Transporter Permit Fee ......................................... $100.00
Decal Fee (each truck) ........................................... $150.00
C. MANDATORY DECALING:
To facilitate the charge-by-weight system and customer processing at County Iandfiiis, al.i drag-on
boxes and all commercial vehicles and trailers normally charged by weight, shah be decaled and
may be retared at the discretion of the Director.
The Director may at hislher discretion, waive the requirements for decaiing for those haulers who
frequent the County landfills four or fewer times a calendar year.
The Director may at his/her discretion, refuse entry to haulers who do not comply with the decaling
program.
Every permittee shall maintain and keep in force the following insurance coverages and limits:
COVERAGE LIMITS
Workeis Compensation
: General Liability 1. S 500,000 bodily injury per person
2. %1,000,000 bodily injury per occurrence
3. S 250,000 property damage or in lieu of 1, 2, 3 above
. combined single limit bodily injury and property damage
coverage of $l,OOO,OOO.
Each policy of insurance shall contain the following clauses:
A. “Certificate Holder (County of San Diego) shall be named Additional Insured solely as respects
operations performed by or on behalf of the Named Insured”.
B. “It is agreed that these policies shali not be canceled, altered or coverage reduced until thirty (30)
days after the Certificate Holder shall have received written notice of such cancellation, alteration . or reduction The notice shall be deemed effective on the date delivered to said Certificate Holder,
as evidenced by properly validated return receipt.” . .
.
‘I -_
*I :.
- -
Fee Schedule Page 23
BE n FURTHERRESOLVED that this Resolution replaces that certain Resolution adopted by the Board
of Supervisors, and amended last on 4/29/97 which last said Resolution is hereby rescinded.
BE IT FURTIIER RESOLVED that this Resolution shall take effect on 6/24/97 ,
PASSED AND ADOPTED by the Board of Supervisors of the County of San Diego, State of California,
this 24th day 0f June by the following vote:
Cox Jacob, Slater, Roberts, Horn
(STATE?!; &F&‘&4)
(COUNTY OF SAN DIEGO)
I, Thomas Pastu&q Clerk of the Board of Supervisors of the County of San Diego, State of California,
hereby certify that I have compared the foregoing copy with the or&&al Resolution passed and adopted
by said Board, at a regular meeting thereof, at the time and by the vote therein stated, which original
Resolution is now on 61e in my office; that the same contains a full, true and correct transcript therefrom
and of the whole thereof
Witness my hand and the seal of said Board of Supervisors this 3C+--h day of .llme .
Thomas J. Pastuszka
Clerk of the Board of Supervisors
Deputy By*ggy&PA
6/24/g! (77)
‘.
.C’.Cj-y,.& :,: “*’ ? >ygy .lq:‘: ~&!3zi -
- ‘4.
._ .’
- -
Es\;KIBIT “C” TO SETTLE3IEN-I AGREEhIE;NT
PROJ-ECT E3HkYCEi\lE?,-T\;-I‘tS
The following project enhancements are included in the projecr description and are to be
f2nded by the County Solid 11*asre Division atr fi0 CO3 t0 CO2ST, C2iIS53d, or Courlry -4iipOfij:
1. Faradav Dedicarion.
The COIJ~~ shzll ~2~ 2~ Irrevocah!e 0%: l LO Dedicate to rt? Ciry of Carlsbad
(“Carlsbad”), at no cosr and fret 0f2!! liens and encumbrances, Fara.2~~ avenue along the pr0je.c:
ji;Z from the western edge ofrhe COU!nI)’ 0 :.:,T25hi? 2nd esrtndi2g 2:: ihe w3y to the elsr eCg1 c\f
the Counr): ownership. 7l.t IOD shdl be foi an 84 foot Right of YGa). including slope and drainage
pjemen1j. x:0 improvemenrs sh~!l be rtcuiret from the Counq. u ~!SS the County submits p1ar.s
10 develop these properties a:d rhe improi’emenrs are not alread;; in piace. Design and alignm,en: of
F2;&y sh:ll comply bvirh the Ciry’s dtsig? srandards for a StCOi;dsT: axerial. The IOD shall be
grz.nted 10 Carlsbad no late: tb-3 rhree ( ) ..-.. 3 m.Oz;ihj a:er the dare upon lvhich the Ci? supplies t3.e
County il:irh the necessq engineering da:: shol.\.ing the alignmen: for\: ihe Faraday Road estersion.
11 ij recog?.ized 2p.5 Sg:?d 1321 25 2 ?2&2! p3E Of the 2g:e2:.2?.: [O desic2re Ihis Rig?: cf
\‘..’ av v<hic> is o\\ntd bv CC~:;. .A~:;oz. rka: the 021tr road irnprc:;e,?nrs se: ,: _. --. CT jalo~v v,*;ij ‘F-l . __
’ =..ec=.r; 1-m ,‘-.. b.H . . . . c izj;3!ie< <J I:,? ke::ts: QfC~~:~::l .i.j~~O~j Pro!tr~’ 2: 7.2 :zj: CO COU!y; -AirTCEj, rx,t
rbr in &iGon, C&j-& v;l;ili ;~‘..jtLv 22.: CQ:.ji<e: in good fzi;:? 27.1 2.z~iic ” 3rion 10 d*vt!op C.Qyr.T “e ‘k. .&:po& ;;iSperLI’ rh2r CL.. LZ j e r,’ if 2 ‘0 I’ f2:2,:2~ 2.5 <e”,icz.-,et: c;.<:; t,ij a~~~~t~et?b:, lb.2 ~sr.:es
heve reviet.ved [he rei2rive VZi!.i!;j Ofth?SS iC~iS':LZeflij 2nd Cailejr!a>rf ~zc! egiz? ik,ztihs otertii
bentfirs 2ccning to COIL;~.F .Air?OZS is ?~.~.!i~.dt~t ~3 or greaier th.z.^: C-.e value of the IOD require,
b>. this Xgree,menr.
3 -. The County s?z!i makt an IrrevOcahIe Offer to Dedicert approximate!y 2100 fee: i:.
length, 21 no cost and free of a!1 liens 2nd e~cl!mbr2nces, in favor of Carlsbad for a 4s foot Righr of
~Yay covering the public easement/access road thar serves the Transfer station.
3. The County sha!l, if reqcesrtd ’ 0): Carlsbad, enter into 2 standard public v.orks
contract wilh Carlsbad to acquire any ne cesst-ry Right of Way, and shzl! improve, or cause to be
improved and pay for, modifications to the i-i L itrsecrion of Faraday and El Camino Real to provide
two lefi turn lanes out of Fa radav onto El Camino Real, one through lane, and one right turn lane, .
with a median/divider; all 2s shown on the anached plan.
4. The County shall enter into a standard public works contract with Carlsbad to
install, or caused to be installed and paid for, a dedeleration lane approximately 300 feet in length
improved to prime arterial standards on El Camino Real as set fonh on the attached sheet.
.;
5. The County shall, at its option, either enter into a standard public works contract
with Carlsbad or make arrangements to do the work itseIf, or to have Coast do the work, to improve
_ the interior access road to foq (40) feet of pavement, industrial sections, with a/c berms. The
F Y1LIE~CKC.U)rCO.~~~~5?C~~~?r~Ci;t.~. j 19 _ 1 -_ .-
qy\$qT c- I - L, .-‘2. * .bJ F. /63
- _-
PACIFIC REGION
October 17, 1997
D. Dwight Worden, Esq.
Worden, Williams, Richmond & Ellis
462 Stevens Avenue, Suite 102
Solana Beach, CA 92075
21061 S. Western Ave.
Torrance, CA 90501 (310) 222-8700
(310) 212-7092 Fax
CIA FEDERAL EXPRESS
RE: CarlsbadKoast Palomar Station Lease and Sublease
Dear Mr. Worden:
I am Regional Counsel for USA Waste Services, Inc., responsible for the
legal affairs of USA Waste in, among other places, San Diego County.
This letter is written to provide my opinion that Robert B. Shaw, as Vice
President of Coast Waste Management, Inc., a wholly-owned subsidiary of
USA Waste Services, Inc., has been duly appointed to that position by the
director of Coast Waste Management, Inc. Further, in accordance with the
Articles of Incorporation and By-Laws of Coast Waste Management, Inc., a
wholly-owned subsidiary of USA Waste Services, Inc., Mr. Shaw is
authorized to execute binding agreements on behalf of Coast Waste
Management, Inc.
Sincerely,
COAST WASTE MANAGEMENT, l-NC.
E. William Hutton
Regional Counsel
EWH:md
BH-341.97
V 7lTE IT - DON’T SAY ‘-!
To File
From Isabelle Paulsen
Date October 30 19 97
0 Reply Wanted
ONo Reply Necessary
On October 28, 1997, the county brought up two sets of these documents that were signed by the Mayor and attested by the City Clerk. The County representative was given a fully signed set at the meeting.
-- .
PALOMAR SOLID WASTE FACILITY SUBLEASE
OWNER/LESSOR: COUNTY OF SAN DIEGO, AIRPORTS DIVISION
LESSEE: CITY OF CARLSBAD
SUBLESSEE: COAST WASTE MANAGEMENT, INC.
PARCELS:
This Sublease Agreement (“Sublease”) is made and entered into effective as of
&-~vem bs< 3, 1997, concurrent with, and contingent upon, entry of that certain
Lease between the County of San Diego Airports Division (“County Airports”) and the
City of Carlsbad, a copy of which is attached hereto as Exhibit A. This Sublease is
between the City of Carlsbad (“Carlsbad!‘), a municipal corporation and Lessee of the
subject property from County Airports under the Lease attached as Exhibit A and Coast
Waste Management, Inc. (“Coast” or “Sublessee”), a California corporation engaged in
the solid waste business.
I. RECITALS.
A. Incident to the settlement of litigation between Coast, Carlsbad, and the
County of San Diego (“the County”), Carlsbad and County Airports are
entering into the Lease of the subject property attached hereto as Exhibit
A. It is the intent of the parties to this Sublease that Coast, under this
Sublease will assume and perform all of Carlsbad’s obligations under its
Lease with County Airports, including but not limited to, the obligations to
pay rent, to maintain and protect the property and to use the property only
as authorized by the County AirportsXarlsbad Lease.
B. Coast, Carlsbad, and the County each also has certain rights under that
certain Settlement Agreement, a copy of which Settlement Agreement is
attached hereto as Exhibit B. It is the intent of the parties that, pursuant
to this Sublease, Coast will perform all of Carlsbad’s operational and site
related obligations under the Settlement Agreement during the term of
Coast’s Sublease.
C. The parties to this Sublease recognize and acknowledge that Coast is
currently the franchised solid waste collection provider for the City of
Carlsbad on a month-to-month basis. Nothing in this Sublease shall be
construed to alter that relationship or to extend the term thereof.
Dralt 5 - Coast/Car&ad Sublease
CITCAD7.324
Revised October 9,1997 1
4
II. SUBLEASE.
A. Premises.
The premises subleased to Coast under this Sublease are the same Property
and Premises which Carlsbad leases from County Airports under the Lease attached
hereto as Exhibit A. The premises (“Premises”) shall include any additional acreage
added to the Carlsbad Lease, and shall exclude any acreage deleted, during the term
of this Sublease.
B. Effective Date.
This Sublease shall become effective when all of the following have occurred:
1. The Settlement Agreement attached as Exhibit B is signed by all
the parties, approved by the Court, and entered as provided by
law. [The Settlement Agreement was signed on August 11, 1997,
and this condition has been satisfied.]
2. County Airports and Carlsbad have executed the Lease attached
as Exhibit A and the same has become effective.
3. Coast has provided the appropriate bonds and proof of insurance
to Carlsbad and County Airports as provided below.
c. Terms and Provisions.
The terms and provisions of the County AirportsKarlsbad Lease attached as
Exhibit A are incorporated herein by this reference as the terms, provisions, and
conditions upon which the Premises are subleased to Coast. In the event there is any
conflict between the terms, provisions, and conditions of the Lease between County
Airports and Carlsbad and the terms, provisions, and conditions of this Sublease, the
terms, provisions, and conditions of the Lease between County Airports and Carlsbad
shall control, provided that it is understood that the County AirportsKarlsbad Lease
sets the minimum requirements and any additional requirements imposed by this
Sublease shall apply and shall not be deemed in conflict with the Lease.
D. Rent.
The rent to be paid by Coast is as set out in the County AirporWCarlsbad Lease
and Settlement Agreement attached as Exhibits A and B, respectively. Coast shall pay
rent in a timely manner directly to County Airports, with a copy of rent payment
documentation to Carlsbad confirming that rent has in fact been paid. The rent to be
paid by Coast shall include, as may be authorized by the County AirpoWCarlsbad
Lease and Settlement Agreement, respectively, any adjustments in the rent, late
Draft 5 - CoastEarlsbad Subiaasa CITCAD7.324
Revised October Q, 1997 2
payment penalties, and any other Lease related charges (“extra rent” pursuant to
Section 1 .I 1 of the County AirportKarlsbad Lease) due from Carlsbad to the County. It
is expressly understood and agreed by the parties to this Sublease that in no event is
Carlsbad to bear any of the costs of rent or other Lease related charges. Rather, it is
Coasts obligation to make all of these payments. If a security deposit is required by
County Airports under its Lease to Carlsbad, Coast shall make the required deposit.
E. Pavment of Tip Fee Reductions to Carlsbad Per Settlement
Aareement.
In addition to rent, Coast shall transmit to Carlsbad the amount of reduced tip
fees called for by 111(C)(6) of the Settlement Agreement attached hereto as Exhibit “B.”
($2.50 per ton for all waste disposed of in County facilities above Carlsbad’s trash up to
a total of 800 tons per day, and $3.25 per ton on all waste disposed of in County
landfills between 800 and 1000 tons per day, minus Carlsbad’s trash, all as set forth in
more detail in the attached Settlement Agreement). Coast shall keep accurate records
in order to comply with the provisions of the Settlement Agreement attached as Exhibit
“B” and with the provisions of this Sublease, and Coast shall, within 15 days of the end
of each calendar month transmit to Carlsbad by check all amounts due pursuant to this
subparagraph, together with an accounting of how the amount was computed. Any
disputes concerning the manner, timeliness, or amount of such payments shall be
subject to the dispute resolution provisions of this Sublease and of the Settlement
Agreement.
F. Acceptance of Premises bv Coast.
Coast accepts the Premises subject to any and all existing easements and
encumbrances. Coast further acknowledges that it has, in fact, been utilizing the site
for some number of years and that in entering into this Sublease it does so having fully
inspected the Premises to its satisfaction. In this regard, Coast accepts responsibility
for the cost of mitigating any existing or future hazardous or toxic materials cleanup that
may be required at the site by the County AirportXarlsbad Lease or as a result of
Coast’s presence at the site. Coast further certifies and warrants that in entering into
this Sublease it is not relying upon any representation as to the condition of the
property or the Premises by Carlsbad or County Airports. Coast further accepts and
acknowledges the obligations of the County AirporWCarlsbad Lease and of the
Settlement Agreement attached as Exhibits A and B, respectively, and that it has
reviewed the same to its satisfaction with its own independent attorneys and advisors,
fully understands the same, and undertakes to perform the obligations thereof as called
for by this Sublease in full without reservation.
G. Taxes, Assessments and Fees.
Carlsbad shall not be obligated to pay any taxes or assessments accruing
against Sublessee related to the Lease, the Sublease, or the Premises or any interest
Drafl5 - Coast/Carlsbad Sublease CITCAD7.324 Revised October Q,lQQ7 3
of Sublessee therein before, during or after the term, or any extension thereof. All such
payments shall be the sole responsibility of Sublessee. In addition, Sublessee shall be
solely responsible for payment of any taxes or assessments levied upon any
improvements, fixtures or personal property located on the Premises, to the extent that
such taxes or assessments result from the business or other activities of Sublessee
upon, or in connection with, the Premises.
H. IndemniWHold Harmless.
Coast shall indemnify, defend, and hold harmless the City of Carlsbad, County
Airports, and their officers, employees, and agents from and against any and all claims,
demands, liability, judgments, awards, fines, mechanics’ liens or other liens, losses,
damages, expenses, rents, charges or costs of any kind or character, including
attorneys’ fees and court costs (hereinafter collectively referred to as “claims”), arising
from or in connection with, or caused by, directly or indirectly (1) any breach or default
by Sublessee of its obligations under this Sublease; (2) any act, omission, or
negligence of Sublessee, active or passive, or of any sub-sub-tenant or sub-sub-lessee
and/or their respective contractors, subcontractors, licensees, invitees, agents,
servants, or employees; (3) any use of the Premises, or any accident, injury, death or
damage to any person or property occurring in, on or about the Premises or any part
thereof, or any service delivery facilities, or any other portions of the Premises used by
Sublessee; and (4) any labor dispute involving Sublessee, its employees, contractors,
subcontractors, or agents, including without limitation, claims caused by the concurrent
negligent act or omission, whether active or passive, of Carlsbad or its officers, agents,
and/or employees; provided, however, that Sublessee shall have no obligation to
defend or indemnify Carlsbad or County Airports or their officers, agents, and
employees from claims caused by the negligent, willful or criminal act of Carlsbad or
County Airports or their officers, agents, and employees.
The foregoing shall include the obligation on the part of Sublessee and its
successors, assigns, and guarantors, if any, jointly and severally, to protect, indemnify,
defend (with counsel of Carlsbad’s choosing as to claims against Carlsbad and County
Airports’ choosing as to claims against County Airports), reimburse and hold Carlsbad
and County Airports and their officers, agents, and employees harmless from any
claims, judgments, damages, penalties, fines, costs or expenses, known or unknown,
contingent or otherwise, liabilities (including sums paid in settlement of claims),
personal injury (including wrongful death), property damage (real or personal), or loss
including attorneys’ fees, consultants fees, and experts fees (consultants and experts
to be selected by Carlsbad) which arise during or after the term of this Sublease from
or in connection with the presence or suspected presence of hazardous or toxic
materials as defined by applicable federal, state, and/or local law as a result of acts, by
Sublessee, its contractors, employees, customers, and/or agents anywhere in or on the
Premises, including the soil, groundwater, or soil vapor on or under the property,
unless the hazardous or toxic materials are present as the result of the gross
negligence or willful misconduct of Carlsbad, its officers, agents or employees. Without
Draft 5 - Coast/Carl&ad Sublease CITCAD7.324 Revised October 9,1997 4
7
limiting the generality of the foregoing, the indemnification provided by this section
shall specifically cover costs incurred in connection with investigation of site conditions
for any cleanup, remediation, removal or restoration work required by any hazardous or
toxic materials laws because of the presence of hazardous materials in the soil,
groundwater or soil vapor on the Premises resulting from the release or discharge of
hazardous materials by Sublessee during the course of Sublessee’s alteration or
improvement of the Premises, unless the hazardous materials are present as a result
of the gross negligence or willful misconduct of Carlsbad or County Airports or their
officers, agents, or employees.
In the event that Carlsbad shall exercise any of its rights under this Sublease to
enter the Premises and/or the Property or to authorize others to do so, Sublessee and
their officers, employees, and agents shall not be liable for, and Carlsbad shall defend,
indemnify, protect and hold said parties harmless from any and all claims, demands,
liability, judgments, awards, fines, mechanics’ liens or other liens, losses, damages,
expenses, charges or costs of any kind or character, including actual attorneys’ fees
and court costs (collectively referred to as “claims”), arising from or in connection with,
or caused by, directly or indirectly, any such entry by Carlsbad or its agents resulting in
any accident, injury, death or damage to any person or property occurring in, on, or
about the Premises or any part thereof, or any service delivery facilities or any other
portions of the Property.
I. Insurance.
Without limiting Sublessee’s indemnification obligations to Carlsbad and County
Airports as set out above, Sublessee shall provide and maintain, during the term of the
Sublease and for such other period as may be required herein, including any holdover
period, whether authorized or unauthorized, insurance in the amounts and forms
specified in Exhibit E to the County AirportKarlsbad Lease which shall name
Carlsbad, the members of its City Council, and its officers, agents, employees and
volunteers, individually and collectively, as additional insureds. Coast shall provide
Carlsbad with the appropriate certificates of insurance confirming Carlsbad’s status as
an additional insured in the form and manner as called for by paragraph E of Exhibit E
to the County AirporKarlsbad Lease. Coast expressly acknowledges and agrees that
the rights, remedies, and benefits running in favor of County Airports under Exhibit E to
the County AirportICarlsbad Lease with respect to insurance requirements also run to
the benefit of Carlsbad as sublessor, and are enforceable directly by Carlsbad.
J. Inspection.
Carlsbad and its designated agent or agents, and County Airports and its
designated agent or agents representing the landowner, shall have the right at any time
and from time to time, on reasonable notice to Sublessee (except in the event of an
emergency in which case no notice shall be required) to inspect the Premises to
determine whether Sublessee is complying with Sublessee’s obligations set forth in this
Draft 5 - CoastlCarlsbad Sublease
ClTCAD7.324
Revised October 9.1997 5
Sublease, and to perform environmental inspections and samplings during regular
business hours (except in the event of an emergency) or during such other hours as
Carlsbad and/or County Airports and Sublessee may agree. If Sublessee is not in
compliance with its obligations in any respect, upon demand for correction and failure
to cure in a reasonable time on the part of Sublessee, Carlsbad and/or County Airports
shall have the right, in addition to Carlsbad’s and County Airports’ other remedies
available at law and in equity, or under the Settlement Agreement, to enter upon the
Premises immediately and, at Sublessee’s expense, take such action as Carlsbad
and/or County Airports in their sole judgment deems appropriate to remediate any
actual or threatened violation caused by Sublessee and/or to protect Carlsbad’s
interest in ensuring that its lease with County Airports is not violated. Carlsbad and
County Airports will use reasonable efforts to minimize interference with Sublessee’s
use of the Premises but will not be liable for any interference caused by Carlsbad’s or
County Airports’ entry and remediation efforts.
K. Operations Aareement.
In conformance with section W(C)(3) of the Settlement Agreement attached
hereto as Exhibit “B,” the Operating Agreement attached hereto and incorporated
herein by this reference as Exhibit “C” shall govern day to day operations at the
Facility. The Operations Agreement may be revised from time to time by an agreement
in writing signed by the Carlsbad City Manager and an authorized representative of
Coast without the need for a formal amendment of this Sublease. Carlsbad shall, at all
times, keep in its official files an up-to-date version of this Sublease together with an
up-to-date version of the Operations Agreement.
L. Assianment; Consent Reauired.
Sublessee shall not voluntarily or involuntarily assign, sublease, mortgage,
encumber, or otherwise transfer all or any portion of the Premises or its interest in this
Sublease without Carlsbad’s and County Airport’s prior written consent. Carlsbad shall
consider any requested assignment in conformance with the terms of the Settlement
Agreement. Carlsbad’s consent shall not be unreasonably withheld. County Airports
shall consider any request for assignment in conformance with the terms of the Lease
between County Airports and Carlsbad. Any attempted assignment or transfer on the
part of Sublessee without Carlsbad’s and County Airports’ prior written consent shall be
void and shall constitute a breach of this Sublease. Carlsbad’s and County Airports’
consent to any assignment or Sublease will not be effective until a document in writing
is signed memorializing Carlsbad’s and County Airports’ approval and the assignee or
sub-sub-lessee has assumed all of the obligations of Sublessee and has agreed to
perform all of Sublessee’s obligations.
Dratl 5 - CoastlCarlsbad Sublease CiTCAD7.324 RevkedOctober9,lQQ7
M. Events of Default.
The occurrence of any of the following shall constitute a default by Sublessee
and a breach of this Sublease:
1. Failure on the part of Sublessee to perform any material aspect of
this Sublease, including Exhibits A and B referred to in this
Sublease.
2. Failing or refusing to pay any rent or other monetary obligation in a
timely manner.
3. Maintaining, committing, or permitting on the Premises waste, a
nuisance, or use of the Premises for an unlawful purpose, or
assigning or subletting this Sublease in a manner contrary to the
provisions of this Sublease.
4. Failure to remediate or otherwise take corrective action as to any
matter upon the demand of Carlsbad.
N. Carlsbad’s Rinht and Remedies.
Should Sublessee fail to perform its obligations under this Sublease, Carlsbad
may exercise any of the following rights:
1. The right of Carlsbad to terminate this Sublease and Sublessee’s
right to possession of the Premises and to reenter the Premises,
take possession thereof and remove all persons therefrom,
following which Sublessee shall have no further claim thereon or
hereunder.
2. The right of Carlsbad without terminating this Sublease and
Sublessee’s right to possession of the Premises, to reenter the
Premises and occupy the whole or any part thereof for and on
account of Sublessee and to collect any unpaid rents and other
charges which have become payable, or which thereafter become
payable.
3. The right of Carlsbad, even though it may have reentered the
Premises, to elect thereafter to terminate this Sublease and
Sublessee’s right to possession of the Premises. Should Carlsbad
re-enter the Premises, Carlsbad shall not be deemed to have
terminated this Sublease and the liability of Sublessee to pay rent
and other charges thereafter accruing, and Sublessee’s liability for
damages under any of the provisions of this Sublease shall
Dtafl5 - Cc&/Carlsbad Sublease
ClTCA07.324 Revised October 9.1997 7
continue unless and until Carlsbad shall have notified Sublessee in
writing that it has so elected to terminate this Sublease and
Sublessee’s right to possession.
4. Its rights under its Lease with County Airports.
The rights and remedies of Carlsbad set forth in this Paragraph (N) are in
addition to the rights of County Airports under the Lease between County Airports and
Carlsbad.
0. Defaults bv Carlsbad.
If Carlsbad shall neglect or fail to perform or observe any of the terms,
covenants, or conditions contained in this Sublease and/or in Exhibits A and B attached
hereto to be performed on the part of Carlsbad and which are necessary in order to
enable Coast to perform its obligations, upon notice thereof, in writing, from Coast to
Carlsbad , Carlsbad shall within a reasonable time cure any such failure of
performance on its part. In the event that Carlsbad fails or refuses to cure any such
failure of performance on its part, such failure shall be deemed a material breach of this
Sublease entitling Coast to the remedies provided at law and in equity, including but
not limited to, the right to terminate the Sublease and cease paying rent.
P. Notices.
Notices under this Sublease may be delivered, in writing, by mail or personal
delivery to the following parties at the following addresses:
City Manager
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Coast Waste Management, inc.
C/O
County of San Diego
Airports Division
1980 Joe Crosson Drive
El Cajon, CA 92020
Any party may, by written notice, delivered pursuant to this provision, at any time
designate a different address and contact person to whom notices shall be sent.
Draft 5 - CoastEarlsbad Sublease
CllCAD7.324 Revised October 9.1997
Q. Waiver of Relocation Assistance Benefits.
Sublessee understands and acknowledges that Carlsbad has a right of first
refusal to acquire the property under Exhibits A and B attached hereto, and that
Carlsbad may, in the future, (but not during the term of the County Airport/Carlsbad
Lease) undertake by eminent domain to acquire title to the property. By entering into
this Sublease and becoming a subtenant of Carlsbad, Sublessee may become entitled
to receipt of “relocation assistance benefits,, pursuant to the Federal Uniform
Relocation Assistance Act and/or the California Relocation Assistance Law, should
Carlsbad at some time make use of the Premises in such a way as to “displace”
Sublessee from the Premises. In consideration of Carlsbad’s agreement to enter into
this Sublease, Sublessee hereby waives any and all rights it may now have, or may
hereafter obtain, to relocation assistance benefits under federal, state, or local law
arising out of Carlsbad’s assertion or exercise of its rights under this Sublease and/or
its right to pursue eminent domain, and Sublessee releases Carlsbad and County
Airports from any liability for payment of such relocation benefits, provided, however,
that Sublessee does not waive its rights to relocation benefits as to any entity other
than Carlsbad and County Airports.
R. lntearation of Sublease with CountMCarlsbad Lease and Settlement
Aareement.
The terms, conditions, and provisions of this Sublease shall be integrated with
the County AirporWCarlsbad Lease (Exhibit A) and the Settlement Agreement (Exhibit
B). The fact that some provisions, but not all, of the CountyKarlsbad Lease (Exhibit A)
and/or of the Settlement Agreement (Exhibit B) may be restated in this Sublease does
not diminish the validity or importance of any of the other provisions. The provisions of
Exhibits A and B set the minimum requirements as supplemented by any additional
provisions in this Sublease. Under all circumstances Coast shall, at minimum, be
obligated to perform all of Carlsbad’s obligations to the County under Exhibit A.
S. Exoansion.
The Premises shall be expanded, if at all, in conformance with the terms and
provisions of Exhibits A and B. In the event of expansion, Carlsbad and Sublessee
agree to amend this Sublease as appropriate to incorporate any such expansion. No
expansion of the Premises on the part of Sublessee shall occur except with the prior
express written consent of Carlsbad and County Airports in a manner consistent with
Exhibits A and B.
Draft 5 - CoastEarisbad Sublease CITCAD7.324 RevisedOctoberQ, 1997 9
Ill. GENERAL PROVISIONS.
A. Authoritv.
Sublessee represents and warrants that it has full power and authority to
execute and fully perform its obligations under this Sublease pursuant to its governing
instruments, without the need for any further action, and that the person(s) executing
this Sublease on behalf of Sublessee is(are) the duly designated agent(s) of Sublessee
and is(are) authorized to do so.
B. Brokers.
Sublessee warrants that it has had no dealings with any real estate broker or
agent in connection with the negotiation and/or execution of this Sublease. In the
event any broker other than the brokers acknowledged in writing by Carlsbad make
claim for monies owed, Sublessee shall indemnify, defend and hold Carlsbad and
County Airports harmless therefrom.
C. Captions.
The captions, headings and index appearing in this Sublease are inserted for
convenience only and in no way define, limit, construe, or describe the scope of intent
of the provisions of this Sublease.
D. Carlsbad Approval.
Except where stated herein to the contrary, the phrases “Carlsbad’s approval,”
and “Carlsbad’s written approval” or such similar phrases shall mean approval of
Carlsbad’s City Manager or said Manager’s designee as authorized by said Manager in
writing.
E. Alleaation of Breach: Notice: Rinht to Cure
Any dispute or allegation of breach of this Sublease shall be handled in
conformance with the dispute resolution and breach provisions of the Settlement
Agreement and the County AirportsKarlsbad Lease.
F. Cumulative Remedies.
In the event of a default under this Sublease, each party’s remedies shall be
limited to those remedies set forth in this Sublease; any such remedies are cumulative
and not exclusive of any other remedies under this Sublease to which the non-
defaulting party may be entitled.
Dmft 5 - Coast/Carl&ad SuMease
CITCAD7.324 RevisedCctolmr9,1997 10
G. Entire Aareement.
This Sublease, together with all addenda, exhibits and riders attached hereto,
constitutes the entire agreement between the parties with respect to the subject matter
hereof, and all prior or contemporaneous agreements, understandings and
representations, oral or written, are superseded.
H. Estoppel Certificate.
Sublessee shall at any time during the term of this Sublease, within five (5)
business days of written notice from Carlsbad, execute and deliver to Carlsbad a
statement in writing certifying that this Sublease is unmodified and in full force and
effect or, if modified, stating the nature of such modification. Sublessee’s statement
shall include other details requested by Carlsbad, such as the date to which rent and
other charges are paid, Sublessee’s knowledge concerning any outstanding defaults
with respect to Carlsbad’s obligations under this Sublease and the nature of such
defaults if they are claims. Any such statement may be relied upon conclusively by any
prospective purchaser or encumbrancer of the Premises. Sublessee’s failure to deliver
such statements within such time shall be conclusive upon Sublessee that this
Sublease is in full force and effect, except to the extent any modification has been
represented by County, and that there are no uncured defaults in Carlsbad’s
performance, and that not more than one month’s rent has been paid in advance.
Exhibits.
All exhibits referred to herein are attached hereto and incorporated by reference.
J. Force Maieure.
In the event either party is prevented or delayed from performing any act or
discharging any obligation hereunder, except for the payment of rent by Sublessee,
because of any and all causes beyond either party’s reasonable control, including
unusual delays in deliveries, abnormal adverse weather conditions, unavoidable
casualties, strikes, labor disputes, inability to obtain labor, materials or equipment, acts
of God, governmental restrictions, regulations or controls, any hostile government
actions, civil commotion and fire or other casualty, legal actions attacking the validity of
this Sublease or Carlsbad’s occupancy of the Premises, or any other casualties beyond
the reasonable control of either party except casualties resulting from Lessee’s
negligent operation or maintenance of the Premises or the Property (“Force Majeure”),
performance of such act shall be excused for the period of such delay, and the period
for performance of such act shall be extended for a period equivalent to the period of
such delay. Force Majeure shall not include any bankruptcy, insolvency, or other
financial inability on the part of either party hereto.
Draft 5 - CoadCarlsbad Sublease
CllCAD7.324 Revked October Q, 1997 11
K. Govemina Law.
This Sublease shall be governed, construed and enforced in accordance with
the laws of the State of California.
L. Intemretation.
The parties have each agreed to the use of the particular language of the
provisions of this Sublease, and any question of doubtful interpretation shall not be
resolved by any rule of interpretation providing for interpretation against the parties
who cause an uncertainty to exist or against the draftsperson.
M. Joint and Several Liability.
If more than one person or entity executes this Sublease as Sublessee, each of
them is jointly and severally liable for all of the obligations of Sublessee hereunder.
N. Sublessee’s Lease Administration.
Sublessee confirms that Sublessee’s Lease Administrator has been given full
operational responsibility for compliance with the terms of this Sublease. Sublessee
shall provide Carlsbad with a written schedule of its normal hours of business operation
on the Premises, and Sublessee’s Sublease Administrator or a representative
designated thereby shall be (i) available to Carlsbad on a twenty-four (24) hour a day,
seven (7) day a week, basis, and (ii) present on the Premises during Sublessee’s
normal business hours, to resolve problems or answer questions pertaining to this
Sublease and Sublessee’s operations on the Premises.
0. Modification.
The provisions of this Sublease may not be modified, except by a written
instrument signed by both parties and approved in writing by County Airports.
P. Partial Invaliditv.
If any provision of this Sublease is determined by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Sublease shall not be
affected thereby. Each provision shall be valid and enforceable to the fullest extent
permitted by law.
Q. Pavments.
Except as may otherwise be expressly stated, each payment required to be
made by Sublessee shall be in addition to and not in wstitution for other payments to
be made by Sublessee.
Draft 5 - CoasKarisbad Sublease CITCAD7.324
Revised October 9.1 QQ7 12 /5
R. Successors & Assinns.
This Sublease shall be binding on and inure to the benefit of the parties and
their successors and assigns, all of whom shall be jointly and severally liable
hereunder, except as may otherwise be provided herein.
S. Time of Essence.
Time is of the essence of each and every provision of this Sublease.
T. Waiver.
No provision of this Sublease or the breach thereof shall be deemed waived,
except by written consent of the party against whom the waiver is claimed. The waiver
by Carlsbad of any breach of any term, covenant or condition contained in this
Sublease shall not be deemed to be a waiver of such term, covenant or condition of
any subsequent breach thereof, or of any other term, covenant or condition contained
in this Sublease. Carlsbad’s, or County Airports’, subsequent acceptance of partial
rent or performance by Sublessee shall not be deemed to be an accord and satisfaction
or a waiver of any preceding breach by Sublessee of any term, covenant or condition of
this Sublease by reason of such breach, regardless of Carlsbad’s or County Airports’
knowledge of such preceding breach at the time of Carlsbad’s or County Airports’
acceptance. The failure on the part of Carlsbad to require exact or full and complete
compliance with any of the covenants, conditions of agreements of this Sublease shall
not be construed as in any manner changing or waiving the terms of this Sublease or
as estopping Carlsbad from enforcing in full the provisions hereof. No custom or
practice which may arise or grow up between the parties hereto in the course of
administering this Sublease shall be construed to waive, estop or in any way lessen the
right of Carlsbad to insist upon the full performance of, or compliance with, any term,
covenant or condition hereof by Sublessee, or construed to inhibit or prevent the rights
of Carlsbad to exercise its rights with respect to any default, dereliction or breach of
this Sublease by Sublessee.
IN WITNESS WHEREOF, Carlsbad and Sublessee have duly executed this
Sublease as of the day and year first above written.
SUBLESSOR:
Dated: November 3, 1997
Draft 5 - CoasUCarlsbad Sublease ClTCAD7.324
Revised CctoberQ. 1997 13
Dated: q.h
APPROVED AS TO FORM:
Dated: -4&k
Dated: I 0 11-l /q 7
SUBLESSEE:
COAST WASTE MANAGEMENT, INC.
By:
WORDEN, WILLIAMS, RICHMOND & ELLIS
A ProfessionaJ Corporation
Counsel for City oi Carlsbad
+feewlw E- iw/u~qbwk li-dmd Counsel for boast Waste
Management, Inc.
NOTE: THIS SUBLEASE HAS BEEN REVIEWED AND APPROVED BY THE COUNTY
OF SAN DIEGO AIRPORTS DIVISION, LANDOWNER AND MASTER LESSOR, AS
SET FORTH IN THE ATTACHED CONSENT TO SUBLEASE.
Drafl5 - CoadCarlsbad Sublease
CITCAD7.324 Revised Octokr 9.1 QQ7 14
November lo,1997
Conrad Pawelski
r Coast Waste Management
5960 El Camino Real
Carlsbad, CA 92008
Re: Agreements for Solid Waste Services and Lease/Sublease for Palomar Transfer
Station
Enclosed are the following documents which were approved by the City Council at the
October 28, 1997 meeting:
Copy of signed Resolution No. 97-653
Copy of signed Lease/Sublease for Palomar Transfer Station
Copy of signed Resolution No. 97-655 , . .
Copy of signed agreement for solid waste services
If you have any questions, please do not hesitate to contact this office.
Assistant City Clerk
KRK:ijp
Enclosures
1200 Carlsbad Village Drive - Carlsbad, California 92008-1989 - (760) 434-2808 @