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HomeMy WebLinkAbout1997-06-17; City Council; 14222; SETTLEMENT AGREEMENT BETWEEN CITY OF CARLSBAD, COUNTY OF SAN DIEGO AND COAST WASTE MANAGEMENTV r\: $ 2 22 0 3 d - 2 3 2 1 8 : Q 11 1 Q u 2 Q- c -5. 1 "PJ 3 b- 3 C~ 5 i- z M ,3 fl3 4 .d aJ 9 Q 'I 19 \ v *l I kl .. - -4 a 3 C *rl u \ c 4- g 2 L) 0) 5 - Ll c aJ u u 1 (d E aJ b 4 Pl ,.c i3 h h Cn \ rl \o z h 0 \ g 2 -I y 3 8 HUClY DILL i *' r umnLamnu - VI I AB#-+&= TlTLL7 DEP1 MTG. nm CITY OF CARLSBAD, COUNTY OF SAN DIEGO CITY DEPT. CM AND COAST WASTE MANAGEMENT CITY RECOMMENDED ACTION: 97-99f Adopt Resolution No. City of Carlsbad, the County of San Diego, and Coast Waste Management. ITEM EXPLANATION For many years, the City's authorized solid waste handler, Coast Waste Management ha Palomar Transfer Station from the County. This lease was initially on a multi-year basi year-to-year basis and, finally on a month-to-month basis. As regional solid waste issi more volatile in 1994, the County of San Diego attempted to evict Coast Waste Managem Palomar Transfer Station site. Coast Waste filed a suit against the County of San Diego of trade. At that point, the City intervened and also initiated separate eminent domain 1 The City, the County and Coast Waste then agreed to suspend all litigation in an attempt a mutually beneficial settlement agreement. In the interim, a revised lease extending the until May 31, 1997 was executed. In March 1997, the conditional use permit for the San Marcos Landfill was revoked by the Marcos, and the landfill was closed. The capacity of the Palomar Transfer Station was I 800 tons per day (tpd), and the Station began processing and transferring waste from jurisdictions to the Sycamore Landfill, near Santee, and secondarily, the Otay Landfill in Throughout these events, all parties continued to negotiate the settlement agreement. expectation that a final settlement agreement would be achieved. The product of these negotiations is before you tonight for your consideration. Key F settlement agreement are as follows: 0 authorizing the Mayor to execute the settlement agreement closure of San Marcos, all parties have operated under these deal points in good f; Lease For Collection, Operation. Transfer and Related Solid Waste - The County Airp will lease the facility to the City, and in turn, the City will sublease the facility to C Management. Sublease terms will mirror the lease terms. Transfer Operations - Carlsbad as lessee, and Coast Waste as sublessee shall have conduct transfer and transport operations at the facility during the term of the lease/sul Permits - The City shall consider issuing a conditional use permit for the Station's ope1 tpd (CUP approved March 5, 1997). Coast Waste shall obtain a solid waste fac Pending issuance of the permit, current operations are pursuant to a notice and ord the local enforcement agency. The County shall cooperate in assisting the permittins Improvements - The County will fund and install $500,000 street and related improve1 facility, and Coast will effect other improvements at the site. 0 0 amendment from the California Integrated Waste Management Board to operate The use of the facility will be restricted on weekdays to commercial collection vehicles, v and non-commercial users being accommodated on weekends. The buy-back operation \ with hours of use established via the CUP. While no flow control is exercised by the County or the City, economic incentives ai disposal at County landfills (primarily Sycamore Landfill, secondarily the Otay Landfill) is most economically viable alternative. The tip fee at the Palomar Transfer Station g; $38/ton. Of that $38, the County retains $17, and $21 goes to Coast Waste Transfer fo transfer, transport, and disposal. Waste originating in Carlsbad which has been transferre 0 0 AB /?$42’iL Page Two Station is assessed a reduced tip fee of $8/ton at Sycamore and $6/ton at Otay, leaving ( $13 - $15 for transfer and transport. Waste originating outside Carlsbad is given E $2.50/ton discount for disposal. The $2.50 discount is rebated to the City as a non- processing fee. All parties have agreed in concept to the terms outlined in the settlement agreement. TI of the agreement will effectively dismiss previous litigation of the parties involved. Other ii agreements which must also be executed include the lease, sublease, and transfer statio1 agreement between the City and Coast Waste. FISCAL IMPACT The operation of the Palomar Transfer Station since the closure of the San Marcos resulted in the avoidance of tremendous direct-haul transport costs not only for Carlsbad neighboring jurisdictions as well. This effectively retained waste in the County system 1 have likely otherwise been disposed of at out-of-county landfills. The execution of this ag allow Carlsbad to continue to achieve stability in the solid waste rates charged to the re business owners of Carlsbad. The non-jurisdictional processing fee will generate a1 $325,000 annually for Carlsbad. EXHIBITS 1. Resolution No. y7-- gyf 2. Settlement Agreement between the City of Carlsbad, the County of San Diego, and C Management - 0 0 RESOLUTION NO. 97-498 1 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPRQVING THE SETTLEMENT AGREEMENT BETWEEN THE CITY OF CARLSBAD, THE COUNTY OF SAN DlEGO AND COAST WASTE MANAGEMENT AND AUTHORIZING ITS EXECUTION 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 WHEREAS, the Palomar Transfer Station is owned by the County of San Diegc for many years been leased by Coast Waste Management on a month-to-month basis; WHEREAS, Coast Waste Management has operated the Palomar Transfer S held a non-transferable solid waste facilities permit required and issued by the Integrated Waste Management Board; and, WHEREAS, the City of Carlsbad exercises land use authority over the Paloma Station; and, WHEREAS, all parties have determined it mutually beneficial and in the best the residents and business owners of Carlsbad and San Diego County to cooper continued operation of the Palomar Transfer Station; and, WHEREAS, to that end, all parties hava negotiated the attached settlement agr NOW, THEREFOR€, BE IT RESOLVED, BY THE City Council of the City of C foltows: 1. The above recitations are true and correct. 2. The Settlement Agreement between the City of Carlsbad, the County of 3 and Coast Waste Management attached hereto is hereby approved. 3. The Mayor is hereby authorized to execute said Agreement on behalf of the Ill Ill 111 Ill 111 Ill 28 , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e 0 PASSED, APPROVED AND ADOPTED by the City Council of the City of Carl: , 1997, by the following vote regular meeting held on the day of AYES: NOES: ABSENT: CLAUDE A. LEWIS, Mayor ATTEST: ALETHA L. RAUTENKWNZ, City Clerk (SEAL) 0 0 . 1. + SETTLEMENT AGREEMENT BETWEEN THE CITY OF CARLSBAD THE COUNTY OF SAN DIEGO AND COAST WASTE MANAGEMENT This Settlement Agreement and Mutual Release (“Agreement”) is made and entered into this day of June, 1997, by and among the CITY OF CARLSBAD, California, a municipal corporation (“Carlsbad”), COAST WASTE MANAGEMENT, INC., a California corporation (“Coast”), and the COUNTY OF SAN DIEGO, 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-A1), which it leased to Coast under County Contract No. 18 199 (the “1 984 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. Coast Waste Management, Inc., et al. v. County of Sun Diego, et a]., U.S. District Court No. 94-1823-IEG (a challenge by Coast and Carlsbad seeking to prevent the County’s termination of Coast’s 1984 Lease). 2. City of Carlsbad v. County of Sun Diego, et al., San Diego Superior Cou Case No. N664 15 (an eminent domain action seeking to acquire the Palomar Transfer Station property from the County). 1 F:\CLIENTS\CITCAD\COASTWST\DOCUMENnCITCA6.337 FINAL SETTLEMENT AGREEMENT a 0 C. The San Diego Solid Waste Authority, a joint powers authority (the “Authority)’) was a party defendant to Case No. 94-1823-IEG. However, upon motion by Coast, the Authorit 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 th future operation of the San Marcos Landfill and the transition of assets to the Authority, the 1981 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 County of San Diego v. City of SanMarcos, et al., Case No. 679514, 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 Waste, Inc., et al. v. County of Sun 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, and complete settlement of the above-referenced litigation, except to the extent that an party has expressly reserved rights in this Agreement and/or through the Leases. 2 F.\CLIENTS\CITCAD\COASTWST\DOCWNnCKCAD6.337 FINAL SETTLEMENT AGREEMENT 0 0 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 agencies to make adequate provision for solid waste handling, both within their respectiv 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, tht 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 principle 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 Partit acknowledge that such notice is deemed given. . IT. DEFINITIONS A. Coast. The term “Coast” shall mean COAST WASTE MANAGEMENT, INC., a California corporation, and subject to the approval provisions of this Agreement set out in Section Q, its 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. 3 F\CLIENTS\CnCAD\COAST WSTDOCUMENTCITCAD6.337 FINAL SETTLEMENT AGREEMENT 0 0 B. ExDansion. The term “Expansion” shall include any action to increase the handling capacity of the Facility above the 800 tons per day currently permitted by the Carlsbad CUP. C. Facility. 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 terminates by its terms on May 3 1, 1997. The existing lease shall remain in effect until the new lease is signed except that the leased property shall include tht full 10.70 acres described in section IV until new Leases are signed. 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 an successor to Coast, to be executed by Carlsbad as Sublessor and Coast as Sublessee. G. Recyclables. 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 landf for disposal. 4 F:\CLIENTS\CITCAD\COASTWST\DOCUMENnCITCAD6.337 FINAL SETTJXMENT AGFSEMEhT 0 H. Countv Landfill. The term “County Landfill” shall refer to the following landfills: Ramona Landfill, Sycamore Landfill and Otay Landfill. rn. SETTLEMENT A, Basic Structure. 1. Lease For Collection, Operation, Transfer and Related Solid Waste Purposes. The County Arports Division will lease the Facility to Carlsbad for use as a collection and operation center and for transfer and related solid waste purposes for a term of five years 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 th site. Carlsbad will have a right of first refusal during the term of its Lease to acquire fee title to th 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 o first refusal is effective only during the term of the Lease, and shall expire upon termination of thr Lease. The County shall notify Carlsbad of any offer to purchase or proposal to transfer fee title t the Facility and shall allow Carlsbad ninety (90) days after notice to exercise the option to acquirc 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. 2. Transfer Operations. Carlsbad as Lessee, and Coast as Sublessee, shall hay the right to conduct transfer and transport activities at the Facility during the term of the Lease an 5 F:\CLIENTS\CITCAD\COASTWSlWOCUMENTlCJTCAD6 331 F”AL SETTLEMENT AGREEMENT m e 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 Processing. 1. Carlsbad. The parties acknowledge that the Carlsbad Planning Commissio 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. 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 Integrate 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. County. The County Solid Waste Services and Airports Division, as land 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 anc SWFP permit amendments and any Interim Order that may be necessary to allow continued operations at 800 tons per day. C. Trash HandlinP and Transfer. The parties have agreed that the Facility can and should be operated by Carlsbad/Coast at its original design capacity of 800 tons per day, subject to CEQA clearance and approval of the above-referenced SWFP permit amendments, 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 6 F:\CLIENTS\CITCAD\COASTWST\DOCUME”iCITCAD6.337 FINAL SETTLEMENT AGREEMENT 0 0 close, and did close, after March 1 1, 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. portions of the agreement between the parties are: Key aspects of the waste handling and transfer 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 SWFP permit. 2. Limitations on Use of Palomar Facility. With respect to transfer operations, service at the Facility will be limited to: (a) 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 which may from time to time be designated in the Carlsbad 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. (b) 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 parties agree that Coast will carefully monitor its costs incurred in providing self haul service on the weekends, and that during the month of September 1997 the 7 F:\CLlENTS\CITCAD\COASTWSTDOCUME~CITCAD6.337 FINAL SEmEMENT AGREEMENT a 0 parties shall meet and confer in good faith to review Coast’s actual costs 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; (c) Buy-Back: Recyclable buy back shall be permitted on the terms anc 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 Manager, to impose additional reasonable conditions and restrictions on recyclable buy-back operations if traffic, litter, or other problems arise; (d) (e) Hours and days of operations shall be as set in the Carlsbad CUP; So long as Carlsbad is in good standing under its Lease, and Coast i: in good standing under its Sublease, Coast may use the site for its non-transfer collection and othei business activities within the restrictions of the Carlsbad General Plan, Zoning, City Code, and the CUP. 3. Transfer and Transport. Coast, or a successor sublessee, shall transfer wastt 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, pursuant to the approval provisions set forth below in Section Q, 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 with the terms of the Lease and Sublease. 4. Recycling. Coast shall have the right to recover recyclables from the waste stream for reclamation, reuse, and resale. Loads entering the Facility that are 100 percent recyclables, and which are in fact reclaimed and/or recycled and not sent for disposal, shall not be 8 F:\CLIENTS\CITCAD\COASTWST\DOCUMXh!TClTCAD6.337 FINAL SETTLEMENT AGREEMENT 0 e subject to the fee payment structure set forth below applicable to all waste 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 Erom the waste stream, recyclables SQ 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. In accordance with Section m@) 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 material2 improper reporting of waste volumes for any jurisdiction, Coast will be subject to the administrative fees provided in the Fee Schedule. ‘The Fee Schedule is the schedule of fees set and published by the County for use of County 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 C. 2The parties recognize that waste from a variety of commercial haulers, as well as from 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 controlled haulers and self hauler: 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. 9 F:\CLIENTS\ClTCAD\COASTWSADOCUh4ENTlCITCAD6.337 FINAL SETTLEAENT AGREEMENT e 0 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, c 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 shall be free to direct waste to any disposal site of their choosing. It is understood that disposal at a site not covered by the CEQA review and certification issued incident to the Carlsbad Planning Commission's March 5,1997 CUP amendment approval will require additional environmental review in the form of an initial study, negative declaration, EIR, or exemption. 6. Tip Fee at Palomar. The parties agree that beginning March 12, 1997, the County was 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 bythe 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 accomodate fee collection. In consideration of this Agreement and the Leases, the County makes the following guarantees. (a) Fee at Facilitv Gate. 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 10 F:\CLENTS\ClTCAD\COASTWS~OCUME"ICITCAD6 337 FINAL SETTLEMENT AGREEMENT e 0 eight ($38) per ton. Of that amount, County Solid Waste Services, or its transferee, shall retain seventeen ($1 7) dollars per ton as additional rent for use of the Facility. (b) Disposal 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 disposal facility (currently the Sycamore Landfill). Although no 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. (c) Disposal Fees for Waste in Excess of that Generated within the ciQ of Carlsbad. Beginning March 12, 1997, the County Solid Waste Services has provided, and it or its transferee shall continue to provideuntil May 3 1,2002, a further reduction in the tip fee at the landfill for waste transferred from the Palomar Facility which is in excess of the average daily tonnage of waste generated within the City of Carlsbad (Carlsbad’s trash) and disposed of in County facilities3. All waste up to 800 tons per day minus the waste generated within the city of Carlsbad and disposed.of in County Facilities will receive a further reduction of $2.50 per ton. AI waste between 800 and 1,000 tons per day, minus Carlsbad’s trash disposed of in County Facilities, will receive a further reduction of $3.25 from the basic tip fee of $8. The parties 31n 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 facilities 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 facility. 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.. 11 F:\CLIENTS\CITCAD\COASTWSTDOCU“nClTCAD6.337 FINAL SETTLEMENT AGREEMENT 0 0 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 IWMB, and will be required to undergo appropriate environmental and other reviews. The purpose of the pricing provisions set forth herein respecting daily tonnage over 800 tons per day is only to confirm the agreement of the parties with respect to pricing shoulc such additional tonnages ever be permitted in the future. (d) Transfer and Transport Fees to Coast. Beginning on March 12, 1997, the County Solid Waste Services has credited, and it or its transferee shall continue until May 3 1,2002, to credit and pay to Coast twenty one ($21) 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 oj waste to County landfills under this Agreement. However, in the event that waste is ever directed 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 01 ba?& seoc;yR, (mrz greater change in the cost of fuel to Coast as set forth in the A up or down, within any 6 month period. E the 15 percent threshhold is met, then Coast and the County 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 particular situation, any party may 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 w Index, either 12 F~\CLIEhTS\CITCAD\COASTWST\DOCUMENT\CTTC6.337 FINAL SETTLEMENT AGREEMENT rl) e compensation. If‘ Coast presents such a request, Coast, Carlsbad, and the County Solid Waste Services, or its transferee, 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. (e) Coast Collection and Transmittal to Carlsbad of Monies for Excess Tonnape Reductions. Beginning on March 12,1997, and continuing 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 currently has a one year lease from the County Arports Division expiring on May 3 1,1997, for 7.226 acres. To accommodate implementation of this Agreement the parties intend to enter into revised Leases increasing the leased acreage from 7.226 acres to 10.70 acres. The parties contemplate that the following Lease: will be executed on or before May 3 1, 1997, or as soon thereafter as possible. In the event that the Leases are not able to be signed by May 3 1, 1997, the parties contemplate extension of the existinj 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 below in N(A). The Leases shall conform to the following basic deal points: 111 Ill 13 F:\CJJENTS\CITCAD\COASTWSTWOCUME~ClTCAD6.337 FINAL SETTLEMENT AGREEMENT 0 0 A. There will be a master lease from the County Airports Division to Carlsbad. Key terms of Master Lease From County to Carlsbad. this lease include: 10 37s 1. Acreage: dG 2. Term: Five years, commencing June 1, 1997; 3. Rent: Starting June 1, 1997: $23&2H9 per month, adjusted up or down to reflect the final agreed upon acreage, at the rate of 3.375 cents per square foot per month, said final acreage to be agreed upon and added to this Agreement by Addendum within 10 days of the execution hereof; payable to the County Airports Division; d 23, 63V*?o* 4. Terms: Standard Airports Lease Terms as adjusted through negotiations of the parties; 5. Termination: Quiet enjoyment to Carlsbad and subleases, early termination for material breach of lease that remains 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: hght in favor of Carlsbad to first refusal to acquire title to the fee interest in the property as set forth above in paragraph IUA; 14 F~\CLIENTS\CITCAD\COASTWSTU)OCUMENnCITCA6.337 FWAL SETTLEMENT AGREEMENT a 0 B. At $1 7 per ton (not including recyclables) commencing March 12, 1997, payable to Additional Rent to Countv Solid Waste Services. County Solid Waste Services, or its transferee. C. Carlsbad 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. Acreage: 10.70; 2. 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 conditions of this 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 4. Other: 15 F:\CLIENTS\CTTCAD\COASTWS~OCUIvlE~CITCAD6.337 FINAL SETTLEMENT AGREEMENT e 0 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. 5. Term: Five years, commencing June 1, 1997. 6. Extension: If the County does not proceed with the divestiture of the assets of the County Solid Waste System and instead decide 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 undertake competitive bidding or a 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 Desim Enhancements. The parties have agreed as an important part of this Agreement that the project design enhancement measures set forth on Exhibit B 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 16 F:\CLIENTS\CTTCAD\COASTWS~~~~CTTC~6.337 FINAL SETTLEMENT AGREEMENT 0 0 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 800 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 Apreement to CUP. 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 by 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: (a) “Surrounding Properties” shall be defined in conformance with the Carlsbad Planning Department 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. (b) “Negative effects” and/or “detrimental effects” shall not be found tc exist by Carlsbad incident to any CUP enforcement action unless the effects are found, based on 17 F:\CLIENTS\ClTCAD\COASTWSTDOCUMENTClTCAD6.337 FINAL SETTLEMENT AGREEMENT 0 0 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. (c) In the event that Carlsbad believes the project has caused or is causing such effects, Carlsbad shall give notice to the County Solid Waste Services (with a copy tc the Arports 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 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. The provisions of this subparagraph (D) were independently negotiated and agreed to as part of this Settlement Agreement, are not a precedent as to any other project, and do not apply to any other project. V. MUTUAL RELEASES AND DISMISSALS A. Release of Claims. 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, 18 F\CLIENTS\CITCAD\COASTWS~W”nCflCAE6.337 FINAL SETTLEMENT AGREEMENT 0 0 principals, agents, servants, employees, representatives, insurers, sureties, attorneys, consultants, and experts, and each of them hereby jointly and severally release each other fi-om any and liabilitj 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 were or could have been asserted in either of the lawsuits referenced above in Section I.B. i B. Each party is aware that it may hereafter discover claims or facts in addition to or different Waiver of Protection of Civil Code 6 1542. 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 filly, 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 krtherance of this intention, the releases 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 1542, 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 HIM MUST HAVE ?MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. Ill 19 F:\CLIENTS\CITCAD\COASTWSl3DOCUMENnCnTC6.337 FMAL SETTLEMENT AGREEMENT e 0 VI. NOTICES 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, Airports Division County of San Diego Department of Public Works 1960 Joe Crosson Drive El Cajon, CA 92020 Joseph S. Minner County Solid Waste Services County Operations Center MS-0383 5 5 5 5 Overland Avenue San Diego, CA 92123 With a copy to: Ofice of the County Counsel 1600 Pacific Highway, Room 355 San Diego, CA 92101-2469 Attention: Diane Bardsley Notices to the City should be sent to: City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 With a copy to: Ron Ball, City Attorney 1200 Carlsbad Village Drive Carlsbad, CA. 92008 Notices to Coast should be sent to: Conrad Pawelski, President Coast Waste Management, Inc. 5960 El Camino Real Carlsbad, CA 92009 With a copy to: White & Bright 355 W. Grand, Suite 2 Escondido, California 92025 Attention: Bruce White, Esq. 20 F:\CLIENTS\CITCAD\COASTWS~NW~C~C~.337 FINAL SETTLEMENT AGREEMENT 0 0 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. MISCELLANEOUS A. Dismted 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 o 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. 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 Sam 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 IV above, constitutes the entire agreement between the Parties hereto pertaining to the subject matter hereof, hlly supersedes any and all prior understandings, representations, warranties and agreements between the Parties hereto, or any of them, pertainin# 21 . F:\CLIENTS\CITCAD\COASTWST\DOCUMENnCTTCA6.337 F'INAL SETTLEMENT AGREEMEhT 0 0 to the subject matter hereof, and may be modified only by written agreement signed by all of the Parties hereto. E. Independent 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. Voluntary Agreement. Each party to this Agreement firther represents that it has carefklly read this Agreement, understands its contents, and signs it freely and voluntarily. G. Severabilitv. If any provision or any part of any provision of this Agreement shall for any reason be helc 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. Attorneys’ Fees and 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, drafting, 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. Ill Iff 22 F:\CLLENTS\ClTCAD\COASTWST\DOCUMEhT!ClTCAD6.337 FINAL SETTLEMENT AGREEMENT 0 0 I. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective heirs, executors, administrators, trustors, 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 full extent necessary to honor the terms and provisions hereof, J. Warrantv of Authorized Signatures. 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. K. Recording. The parties agree that this Agreement or an abstract thereof shall be recorded in the Ofice of the County Recorder of San Diego, California on each of the parcels which comprise thc Facility. L. No Assignment of Claims. Each party has not assigned, transferred, or granted, or purported to assign, transfer or grant, any of the claims, demands, and causes of action disposed of by this Agreement. /I/ 111 23 F\CJJENTS\CITCAD\COASTWSTIDOCUh4E~CITCAD6.337 FINAL SETTLEMENT AGREEMENT 0 0 M. Counterparts. This Agreement may be executed in two or more counterparts, 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 hrther acknowledge that the interest of the County Solid Waste Services in the Leases is an integral part of the County’s solid waste system. Accordingly, the parties agree that the County Solid Waste Services’ interest in the Leases, 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 of the Leases and by this Agreement. 0. Dispute 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 24 F:\CLDENTS\ClTCAD\COASTWST\DOCLJME~ClTCAD6.337 FMAL SETTLEMENT AGREEMENT e 0 litigation shall be commenced until at least one meet and corder session has been held as provided above. A meet and confer session shall be deemed to have been held in the event that a Party gives notice of a meet and confer session and one or more of the other Parties fails to attend at 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 breached the 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. (b) Right to Cure: Upon receipt of a notice of alleged breach, any Part:, 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 attempting 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 event be later than 6 months from the date of mailing of the notice of alleged breach, unless agreed otherwise by all Parties. (c) 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 25 F:\CLIENTS\CITCAD\COASTWSTU)OCUMENnCITCA6.337 m\JAL SETTLEMENT AGFSEMEhT a 0 alleged notice of breach was appropriately given, 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 O( 1) prior to invoking any litigation remedy. P. Dismissal of Litigation. The Parties shall execute appropriate documents to dismiss, with prejudice, the litigation referred to in Paragraph I(B)(l) of this Agreement and to report to the court that the prior interir 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. Q. No change in operator of the Facility and no assignment or transfer of Coast’s rights undei this Agreement or under its Sublease shall be effective unless Coast first receives approval thereof from the City of Carlsbad. Carlsbad shall not unreasonably withhold its approval and shall consider the following factors in reviewing any proposed change in Facility operator or any assignment or transfer of Coast’s rights under this Agreement or under the Sublease: Change in Operator: Successors and Assigns to Coast; Approval. 1. The financial status and strength of the proposed successor/new operator, to ensure that the proposed new operator or successor is at least as financially stable and responsible as Coast was at the time this Agreement or the Sublease was executed and has the ability to financially perform the obligations of this Agreement and of the Sublease. 2. The skill and experience of the proposed successor or new operator, to ensure that the proposed successorloperator is at least as skilled and experienced as Coast was at 26 F\CLIENTS\CITCAD\COASTWSTlDOCW~ClTCAIX.337 FINAL SElTLEMENT AGREEMENT 9 0 0 the time this Agreement was executed and is fklly capable of (a) complying with this Agreement and the Sublease; (b) complying with all applicable rules and regulations governing Facility operations; and (c) has the skill and experience to provide high quality service into the fbture in light of changing regulatory requirements. 3. The background and reputation of the proposed successor or new operator, including background checks on key personnel, to ensure that the proposed successor or new operator has a good reputation with respect to its other customers and service operations and can demonstrate that it will provide reliable, high quality service as successor to Coast or as Operator of the Facility. 4. The personnel and resources that the proposed successor or new operator is prepared to commit to Facility operations in becoming the new Facility operator or successor t Coast, including the management and operations personnel that will be assigned to the Facility, their backgrounds, reliability, and skill. 5. The ability of the proposed successor or new operator to give local, personalized service, including the ability of its local operations personnel to make decisions, access resources from the company, and otherwise efficiently and effectively assume Coast’s role or become the new Facility Operator and to provide local control and responsiveness comparabk to that provided by Coast. 6. The ability and commitment of the proposed successor to abide by any Operations Agreement governing the Facility operations and to abide by the permit conditions ar restrictions, and City Code requirements, applicable to Facility operations. 27 F:\CLIENTS\CITCAD\COASTWS~KW~CITCAD6.337 FINAL SETTLEMENT AGREEMENT e 0 7. Such other factors as Carlsbad shall deem relevant at the time in order to ensure that, overall, the proposed new Facility Operator or successor to Coast will perform this Agreement and the Sublease at least as well as Coast. 8. Any requirements of the Lease and Sublease applicable to a proposed assignment of the Sublease by Coast. “Change of Operator of the Facility” or “Transfer or Assignment” for purposes of triggering the approval requirements of this Paragraph Q shall include: 1. Any proposed voluntary assignment by Coast of its rights under this Agreement andlor of its rights under the Sublease; 2. Any involuntary assignment of Coast’s rights under this Agreement and/or under the Sublease by operation of law such as through foreclosure, bankruptcy, insolvency, or other operation of law; 3. Any proposed merger of Coast with another entity wherein the other entity assumes effective control of Coast’s affairs as they relate to this Agreement and the Sublease, including any merger whereby Coast’s current shareholders do not retain majority voting rights and decision-making authority with respect to this Agreement and the Sublease; 4. Any proposed sale, exchange, or other transfer of more than 50 percent of the ownership/shares of stock in Coast to another person or entity; and 5. Any other agreement proposed to be entered into by Coast that would have the effect of transferring control and decision making authority with respect to performance of this Agreement and/or the Sublease by Coast to another person or entity during the period of this ill 28 F:\CLlEhTS\CITCAD\COASTWSTlDOCUh‘fENl-lCITCAD6.337 FINAL SETTLEMENT AGREEMENT 0 0 Agreement or the Sublease, such as an operations contract with a third party or other contractual arrangement effectively transferring responsibility for Facility operations. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the datc and year first noted above. Dated: CITY OF CARSLBAD By: Claude E. Lewis, Mayor Dated: COUNTY OF SAN DEGO By: Thomas Pastuszka, Clerk of the Board of Supervisors Dated: COAST WASTE MANAGEMENT, INC. By: Arie DeJong, President 29 F.\CLIENTS\CITCAD\COASTWST\DOCUMENTCITCAD6 337 FINAL SETTLEMENT AGREEMENT