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HomeMy WebLinkAbout1997-10-28; City Council; 14402; APPROVAL OF AND AUTHORIZATION TO EXECUTE LEASE AND SUBLEASE FOR PALOMAR TRANSFER STATIONt a g 0 clz & < .. z 0 5 a =! 0 z 3 0 0 - j L I ’7 GI I WF CARLSBAU - AGENUWILL -- 3.d AB#- TITLE: APPROVAL OF AND AUTHORIZATION TO DEPT MTG. /o’$&--qJ EXECUTE LEASE AND SUBLEASE CITY CITY DEPT. RECOMMENDED ACTION: Adopt Resolution No. ’‘ * I$ ’approving and authorizing execution of the lease and sub the Palomar Transfer Station. CSD FOR PALOMAR TRANSFER STATION 3 ITEM EXPLANATION For the past several years, the City’s authorized solid waste handler, Coast Waste Mat leased the Palomar Transfer Station from the County on a month-to-month basis. As regi waste issues became more volatile in 1994, the County of San Diego attempted to e\ Waste Management from the Palomar Transfer Station site. Coast Waste filed a suit a! County of San Diego for restraint of trade. At that point, the City intervened, and initiate( domain proceedings. The City, the County and Coast Waste then agreed to suspend all Ii an attempt to negotiate a mutually beneficial settlement agreement. In the interim, a revi extending the lease period until May 31, 1997 was executed. On August 14, 1997, the County Recorder’s Office recorded the settlement agreement be City of Carlsbad, the County of San Diego, and Coast Waste Management. Among 0th the agreement stipulated the County Airports Division will lease the Palomar Transfer Stal City of Carlsbad and, in turn, the City will sublease the facility to Coast Waste Man Sublease terms mirror the lease terms. The documents before you tonight have been ap concept via the settlement agreement, and are implementing documents of the I agreement. The term of the lease/sublease is five years, commencing June 1, 1997 and terminatin! 2002. There is no option to extend. However, the City retains the first right of refusal, I County ever elect to sell the site. Coast Waste shall make lease payments directly to th The documents have undergone extensive review by all parties, as well as outside counse As this property is owned by the County Airports Division, rather than the Solid Waste Di! ownership of the station and lease payment revenue is not affected by the sale of the s( system to Allied Waste. However, Allied will operate the scalehouse/fee booth, currently by County staff. The tip fee ($38/ton) is established via the settlement agreement operating revenue (established at $17/ton) currently granted to the County will transfei upon closure of escrow, anticipated to occur November 1, 1997, FISCAL IMPACT The monthly rent for the Palomar Transfer Station is $24,634.90, and shall be adjusted ai the consumer price index. The rent will be paid directly by Coast Waste to the County. EXHIBITS I. Resolution No. 9 9 c 6 5 3 I 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 0 e RESOLUTION NO. 97-653 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SUBLEASE FOR THE PALOMAR TRANSFER STATION AND AUTHORIZING EXECUTION =- CARLSBAD, CALIFORNIA APPROVING THE LEASE AND WHEREAS, the City of Carisbad, the County of San Diego, and Coasi Management entered into a settlement agreement regarding the Palomar Transfer Stat1 WHEREAS, the settlement agreement stipulated the County of San Diego will I Palomar Transfer Station to the City of Carisbad; and WHEREAS, the settlement agreement stipulated the City of Carisbad will sub1 Palomar Transfer Station to Coast Waste Management; and WHEREAS, to that end, all parties have negotiated the attached lease and sub1 NOW, THEREFORE, BE IT RESOLVED, BY THE City Council of the City of as follows: 1. The above recitations are true and correct. 2. The Lease for the Palomar Transfer Station between the County of San [ the City of Carisbad attached hereto is hereby approved. 3. The Sublease for the Palomar Transfer Station between the City of Car' Coast Waste Management attached hereto is hereby approved. 4. The Mayor is hereby authorized to execute said documents on behalf of th PASSED, APPROVED AND ADOPTED by the City Council of the City of Carl regular meeting held on the 28th day of October , 1997, by the following bo AYES: Council Members Lewis, Finni NOES None ABSENT: None ATTEST T&w&EN <SEAL) 0 e PALOMAR SOLID WASTE FACILITY SUBLEASE OWNERILES- COUNn, OF SAN DIEGO, AIRPORTS DIVISION LESSEE: CITY OF CARLSBAO SUBLESSEE: COAST WASTE MANAGEMENT, INC, PARCELS: This Sublease Agreement (‘Sublease’) is made and entered into effective as of b\rcm bQr 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 attacfred hereto as Exhibit A This Sublease is between the City of Carlsbad (“Carl-), a municipal capomtion and bwee ofthe sum Propertyfbtn County Airports under the Lease attactred as Exhibit A and Coas Waste Management, Inc. (‘Coaa. OT ’Sublessee‘), a CaJbia corporation engaged ir the solid waste business. 1. RECITALQ. A Incident to the settlement of litigation betwlesr, Coast, Carl-, and the County of San Diego (?he Couw), Carl- and County Airports are entering into the Lease of the subject property attached hereto as Exhibi R 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 t( pay rent, to maintain and protect the property and to use the PrOQerty on as authorized by the CountyAirports/Carlsbad Lease. Coast, CarWad, and the County each also has certain rights under thai cmtain Setthmt Agreement, a copy of which Settlement Agreement is m hereto as Exhibit 8. It is the intent of the parties that, pursuani b @i$ Sublease, Coast will perform all of Cartsbad‘s operational and si1 mktd ~iom under the Settlement Agreement during the tenn of coasfs Sublease. The parties to this Sublease recognize and acknowledge that Coast is wrgntly th$ franchised solid waste collection provider for the City of CadSbad On a montbto-rnonth basis. Nothing in this Sublease shell bc constfued to alter that relationship br to extend the term thereof. B. C. R.Rs -aatcumdsubk# cITcAD7.324 R.ubdocbkr0,1007 1 e 0 II. U! A. ermllws .- The prmi88S 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. 6. gffective Date. This Sublease shall become effective when all of the following have occurred: The Settlement Agreement attached as Exhibit 6 is signed by all the parties, approved by the Court, and entered as provided by law. [The Settlement Agreement was signed on Aug4st 11,1997, and this condition has been satisfied.) County Airports and Carlsbad have executed the Lease attached as Exhibit A and the same has become effective. Coast has provided the appropriate bonds and proof of insurance 1. 2. 3. to CarlsW and County Airports as provided beiow. C. Tern and fmvlsionq. The terms and provisions of the County AirportsICartsbad 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 an] conflict between the tenns, provisions, and conditions of the Lease between County Airports and Carlsbad and the terms, provisions, and conditions of this Sublease, the terms, provisions, and Corrdions of the Lease between County Airports and Carlsbad shall corrtrol, provided that it is understood that the County AirportdCarlsbad Lease sets the minim requirements and any additional requirements imposed by this Sublease ShaEl apply and shall not be deemed in conflict with the Lease. 0. m me rent to be paid by Coast is as set out in the County AirpartdCartsbad Le3 and Settlement Agreement attached as Exhibits A and B, respectively. coast shall I: rent in a timely manner diredly to County Airports, With a copy of rent pamt documentation to Carlsbad confirming that rent has in fact been paid. The rent to bc paid by Coast shall include, as may be authorized by the County AirportslCadsbad Lease and Settlement Agreement, respectively, any adjustments in the rent, late Onlts-CartlCuhbd.er---- aTw7.324 RIvird oaokr 0.1907 2 0 e payment penalties, and any other Lease related charges ("extra rent' pursuant to Section 1 .I 1 of the County Airport/Cartsbad Lease) due from Carlsbad to the County. It is expressly undrwaood and agreed by the parties to this Sublease that in no event is Carlsbad to --my of the costs of rent or other Lease related charges. Rather, it is Coast's obligatiarr to make all of these payments. tf 8 secufity depaSlt is M@red by County Airports under its Lease to Carlsbad, Coast shall make the required deposit. E. Pavmnt of Tin 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 lll(C)(6) of the Settlement Agreement attached hereto as Exhibit '8." ($2.50 per ton for all waste disposed of in County facilities above Carlsbads trash up tc a total of 800 tons per day, and $3.25 per ton on all waste disposed of in County landfills between 800 and lo00 tons per day, minus Carlsbads 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 '8' 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 punwant to thi! subparagraph, together with an accounting of how the amount was computed. Any disputes concerning the manner, timeliness, or arnount of such payments shall be subject to the dispute resaiutiarr provisions of this Subletis8 and of the Settlement Agreement. F. Coast accepts the Premises subjed to any and all existing easements and Accentance of Premises bv Coas?. encumbrances. Coast further acknowledges that it has, in fad, been utilizing the site for some number of years and that in entering into this Sublease it does 90 having full inspected the Premises to its satisfaction. in this regard, Coast accepts responsibility for the cost of mitigating any existing or futum hazardous or toxic materials cleanup tf may be required at the site by the County Airport/Carlsbad Lease or as a result of Coast's presence at the site. Coast further certifies and warrants that in entering inta this Sublease it is not relying upon any representation as to the condition of the property or the Premises by Cartsbad or County Airports. Coast further accepts and acknowledges @m obligatior# of the County AitportslCarlsbad Lease and of the Sefllement Agfwmnt attached as Exhibits A and 8, mpedively, and that it has reviewed the smne to its satisfaction with its own independent attorneys and advisor! fully understands the same, and undertakes to perform the obligatiorrs thereof as cal for by this Sublease in full without reservation. G. Taxes.Assess ments and Feer. Carisbad shall not be obligated to pay any taxes or assessments wing against Sublessee related to the Lease, the Sublease, or the Premises or any intere onlts -corrtccubb.dsublru mCM7 324 R& octokr9.1997 3 e e of Sublessee therein before, during or after the term, or any extension thereof. All such payments shall k the sole responsibility of Sublessee. In addition, Sublessee shall be solely respodbbfor payment of any taxes or assessments levied upon my such taxes or - result from the business or other activities of SUbl8!~% upon, or in connedion with, the Premises. H. lndemnitvhlold Harmlee. Coast shall indemnrfy, defend, and hold harmless the City of Carisbad, County improvement^, @@IW 01 personal oroperty !gaited on the premises, to the extent that 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, induding attorneys' fees and court costs (hereinafter colledively referred to as 'claims'), arising from or in connection with, of caused by, diredly of indiredly (1) any breach or default by Sublessee of its obligations under this Sublease; (2) any act, omission, or negligence of Sublessee, adive or passive, OT of any sub-sub-tenant OT sub-sub-lessee and/or their respective mtr8ctom, subcontractors, licensees, invit-, agemb, damage to any persorr or property occurring in, on or about the Premisea or any part thereof, or any sewice delivery facilities, or any other portions of the Premises wed by Sublessee; and (4) any labor dispute involving Sublessee, its employees, corrttadors, subcontractors, or agents, including without limitation, daims caused by the concurreni negligent act or omission, wtrether active or passive, of Cdsbad or ita officers, agents, and/or employees; provided, however, that Sublessee shall have no obligation to defend or indemnify Carfsbad or County Airports or theit ofiicers, agents, and employees from claims caused by the negligent, wiltful or criminal ad of Carlsbad or County Airports or their officers, agents, and employees. The foregoing shall indude 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 Carl- and Count Airports' choosing as to claims against County Airports), reimburse and hold Carlsbad and County Airports and their officers, apts, and employees harmless from any claims, judgments, damage8, penalties, fines, costs or expens8s, known or unknown, contingent or o#mwise, liabilities (including sums paid in settlement of claims), personal injury (idtiding wrongful death), property damage (real or personal), or loss including attomyr' fecw, mttants fees, and experts fees (consultants and experts to be selected by Carlsbad) which arise during or after the tm of thi8 SuMease from or in connection with the presenoe or suspeded presence of hazardous or toxic materials as defined by applicable federal, state, and/or local law as a result of ads, I Sublessee, its contradors, employees, customers, and/or agents anywhere in or on 11 Premises, including the soil, gmundwater, or soil vapor on w under the Property, unless the hazardous or toxic materials are present as the result of the gros3 negligence or wiltful misconduct of Carlsbad, its ofiioers, agents or employee^. Withi servants, or employees: (3) any use of the Premises, or any accident, injury, death or DmRs --su#wsr CncAD7.324 Rwkd OdOkrQ, 1987 4 e e limiting the genwality of the foregoing, the indemnification provided by this sedion shall spectfical)y COvlM Coas incurred in connection with investigation of site conditiuns for any cleanup,r#nediatiOn, removal or restoration work required by any hazardous or toxic rnateriats t8WS because of the presenm 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 a8 a result of the gross negligence or willful misconduct of Carlsbad or County Airparts 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 indemntfy, proted and hold said parties harmless from any and all daim, demands, liability, judgments, awards, fines, mechanics’ liens or other liens, losses, damages, expenses, charges or costs of any kind or charader, including adual attameyd fees and court costs (colledively refwed to as ‘claims’), arising from or in atmction with or caused by, directly or indirectly, any such entry by Carlsbad or its agentrr resufting i any accident, injury, death or damage to any pcmon or propwty occurring in, on, or about the Premises or any part thereof, or any service delivery facilitiles or any other portions ofthe Property. 1. jmurance. Without limiting Sublessee’s indemnification obligations to Carl- and Coun Airports as set out above, Sublessee shall provide and maintain, during the tenn of tf’ Sublease and for such other period as may be required herein, including any holdovc period, whether authorized or unauthorized, insurance in the amounts and forms specified in Exhibit E to the County AirportlCarlsbad Lease which shall name Carlsbad, the members of its City Council, and its &ce~, @, em&a and volunteers, individually and collectively, as additional insureds Coast shall provide Cartsbad with the amate CeRificates of inswam confirming Carlsbad’s status i an additional insured in the form and manner as called for by paraoraph E of Exhibit to the County &port/CMsbad Lease. Coast expressly acknowiedges and agrees tt the rights, rand#$, and benefits running in favor of ColKlty Airports under Exhibit E the County Lease with respect to insurance requirements also run 1 the benefit de--, and are enforceable diredly by Carfsbad. J. @moectioq. Carlsbad and its designated agent or agents, and County Airports and its designated agent or agents representing the landowner, shall have the rim at any and from time to time, on reasonable notice to Sublessee (except in the event of an emergency in mi& aw 110 notice shall be required) to in- the Premises to determine Wether Sublessee is complying with Sublessee’s obligatians set forth k Dnlt5 --- ufcK)7324 R.uludodpbw9,loof 5 0 e Sublease, and to perform environmental inspections and samplings during regular business hour8 (m in the event of an emergency) or during such other hours as Carlsbad and/or CWnty Airports and Sublessee may agree. If Sublessee is not in compliance with @ Obligations in any resped, upon demand for correction and failure to cure in a reamable fime on the part of Sublessee, Carlsbad and/or county firports 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 Carisbad and/or County Airports in their sole judgment deems appropriate to remediate any actual or threatened violatiom caused by Sublessee andlor to proted Carisbad'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 us8 of the Premises but will not be liable for any interference caused by Carlsbad's or County Airports' entry and remediation efforts. K Owrations Acrreement. In conformance with section N(C)(3) of the Settlement Agmment'attached hereto as Exhibit 'B,' the Operating Agreement attached hereto and incorporated herein by this reference as Exhibit 'c' shall govern day to day ooeratKXrs atthe Facility. The Operations Agreement may be revised from time to time by an agreemW in writing signed by the Carlsbad City Manager and an authorired representative of Coast without the need for a formal amendment of this Sublease. CartlJbad shall, at all times, keep in its official files an up-to-date version of this Sublease together with an uptodate version of the Operations Agteement L. Assignment. Conso nt ReauiM. 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 Carisbad's and County Airport's prior written consent. Carlsbad sha consider any requested assignment in cunfmance 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 Airpod8 8nd Carlsbad. Any attempted assignment or transfer on the part of Subleano Wittrout Cahbad's and County Airports' prior written consent shall t void and shaU aenrtfaRe a keach of this Sublease. Cadsbad's and County Airports' consent to my aosigmd or Sublease will not be effective until a document in writin is signed memorializing carlsbad's and County Airports' approval and the assignee o sub-sub-lessee ha assumed ail of the obligations of Sublessee and has agreed to perform all of Sublessee'e Obligations. R.Rs-adcUbhd?slr'-l- cKw7.324 Rniud adobw 0.1QO7 6 e 0 M. of Default The occuR#1cB 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 asped of this Sublease, including Exhibits A and 8 refened to in this Sublease. Failing of refusing to pay any rent or other monetary obligation in a timely manner. 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. Failure to remediate or othemise take conedive adion as to any matter upon the demand of Carlsbad. 2. 3. 4. N. aht and R-. Should Sublessee fail to perform its obligations under this Sublease, Carlsbad 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. The right of Carlsbad without terminating this Sublease and Sublessee’s right to poss8ss~on of the Premises, to reenter the Premises and occupy the whole or any part thereof for and on c account of Sublessee and to collect any unpaid rents and other dwges which have become payable, or which thereafter becon The right of Carlsbad, even though it may have reentered the Premises, to el& thereafter to terminate this Sublease and Sublessee’s right to possession of the Premises. Should Carlsl re-enter the Premises, Carisbad shall not be deemed to have terminated this Sublease and the liability of Sublessee to pay r( and other charges thereafter ami-, and Sublessee’s liability damages under any of the provisions af this Sublease shall may exercise any of the following rights: 1. 2. payable* 3. MS --smas@ crrcAD7 324 RIvbrd omkr 0.1987 7 0 0 continue unless and until Carlsbad shall have notified Sublessee in Writing that it has so elected to terminate this Sublease and SubhWrr right to possession. It8 rights under its Lease with County Airports. me rights and remedies at Carfsbad set forth in this Paragraph (N) are in addition to the rights of County Airports under the Lease between County Airports and Carlsbad. -_ 4. 0. Defaults bv Carl-. If Carlsbad shall neglect or fail to perform or observe any of the terms, covenants, of 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, up 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 OT refuses to cum any such failure of performance on its part, sudl 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 rerrt P. Noticeq. Notices under this Sublease may be delivered, in writing, by mail or personal City Manager City of Carlsbad 1200 Carlsbad Villw Drive Carlsbad, CA92008 Coast Waste Managemeclt, Inc. delivery to the following parties at the following addresses: ClO Countyd8.nbkgo AiQ0rtSoivwotl 196OJoeCmM El Caw, CA 92020 Any party may, by written notice, delivered pursuant to this pvision, at my ti designate a diflerent 8ddms and conk2 person to whom n0tiCeS shall be mt. onns --- mcm7.324 8 ~.vc.dodDkre. 1987 0 Q. Sublessea.mms and acknowledges that Garlsbad has a ri@t ot first of Rdocrrti on Assistance Benefitq. refusal to acquire the property under Exhibits A and 8 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 Catlsbad and County Airports from any liability for payment of such relocation bedits, provided, howlever, that Sublessee does not waive its rights to relocation bedits as to any Bntity other than Carlsbad and County &rpods. R. lntwration of Sublease with Countvlcarlsbad Lease and Settlm Aamment. The terms, conditions, and provisions of this Sublaam shall be integrated with the County AirportdCarisbad Lease (Exhibit A) and the settlement Agmment (Exhiba B). The fad that some pmvisiona, but not all, of the Countylcarlsbad Lease (Exhibit P and/or of the Settlement Agrement (Exhibit B) may be restated in this Sublease does not diminish the validity or importance of any of the other provisiorrs. The provisions ( Exhibits A and 6 set the minimum requirements as wppiemnted 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. JExpansfoq. The Premism shall be expanded, if at all, in cmfmance with the terms and provisions of B A and 8. In the event of expansion, Carlsbad and Sublessee agree to amend thk Sub- as appropriate to incorporate any such expansion. Nc 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 witt Exhibits A and 6. oIIln5 -corrucvbbdsublrw mm7 324 Rwkd ocbbw 0.1oO7 9 0 0 111. ERAl PR0VISK)NQ. A Autborttv. Sublessee repmmts 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($) executing this Sublease on behalf of Sublessee is(are) the duly designated agent@) of Sublessee and is(are) authorized to do so. 6. 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 brekers acknowledged in Writin0 by Carlabad make claim far monies owed, Sublessee shall indemnify, defend and hold Carlsbad and county Airports harmless therefrom. C. Cadonp. The captions, headings and index appearing in this Sublease are inserted for convenience only and in no way define, limif, comtrw, or describe the scope of intent of the provisions of this Sublease. D. ctsbad AaoroM. 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 i writing. E. Any dispute OT allegatkm of breach of this Sublease shall be handled in Iem~Uon of Breach: Notice: RiaM to Curp confmancew&bU~~ dispute resolution and breach provisions ofthe Settlement Agreement and #?8 County AirportdCarfsbad Lease. F. ~lattve Rwnediw. 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 sudl remedies am cumulativ and not exclusive of any OW remedies under this Sublease to which the non- defaulting party may be entitled. m5 --subk.w cITcm1.324 u&mdOdDkre,1m 10 e 0 G. m AcrrscHm#tt. This Sublerwe, together with all addenda, exhibits and riders attached hereto, constitutes the entire agreement between the parties with resped to the subject matter hereof, and all Mot or contemporaneous agreements, understandings and representations, oral or written, are superseded. H. gstocmel CeMcate. Sublessee shall at any time during the term of this Sublease, within five (5) Statmerlt in w-ting 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 resped to Cartsbad’s obligations under this Sublease and the nature of wcb defaults if they are claims. Any such statmat may be relied upon ConCElrsiely by an) prospective putcham or mcumbmm of the Premises. Subleww’s failure to dolive! such statements within such time shall be corrclusive upon Sublesrree 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 default8 in Carisbad’s performance, and that not more than one month’s rent has been paid in advance. business days of writtefl notice from Carlsbad, execute and deliver to Carlsbad a 1. mhibi&. All exhibits referred to herein are attached hereto and incaporated by refmu 3. 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, aklonnal adverse weather conditions, unavoidable casualties, strikm, labot disputes, inability to obtain labor, materials or equipment, ac of God, gov~l rmMctms , regulations or oontrols, any hostile government actions, civil cminotm and fire OT other casualty, legal actions attacking the validity this Sublease or Carlsbad‘s OCCUP~V~C~ of the Premises, or any other cas~alties beyo the reasonabpe control c# either party ex-t casualties resulting from Lessee’s negligent operation or maintenance of the Pmises or the Property (‘Force Majeure’ performance ofsuch ad Snail be excused for the period of such delay, and the perio fw perf0rmam;e of su& a -11 be extended for a period equivalent to the perid 0 such delay. Force Majeure shall not include any.bankruptcy, insolvv, or other financial inability on the part of either party hereto. ow5 --- mmD7.324 RevbododpkrO. 1987 11 0 0 K Govrmina. This Subhse shall be governed, constmed and enforced in accordam with the laws of the state of Caliimia. L. Intemretatloq. 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 persorr or entity executes this Sublease as Sublessee, each of them is jointly and severally liable for all of the obligations of Sublessee hereunder. Mas880 Admin istratiog #s Lw N. Sublessee confirm8 that Sublessee’s Lease Administfatof 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 businem operatio on the Premises, and sublessee’s su~6aaa AdminiwW M 8 mV0 designated thereby shall be (i) available to Carlsbad m a hmty-four (24) hout 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. Modificati~~. 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. pIltirl-. - If any provbkrr d thii Sublease is determined by a court of competent . jurisdiction to be invalid or memforceable, the remainder of this Sublease shall not bc permitted by law. &dd thereby. Each prauih shall be valid and enfmaable to the fullest extent Q. pavmem. Except as may otherwise be expressly stated, each payment required to be made by Sublessee shall be in addition to and not in mitut*m for other payment: be made by Sublessee. mmr.324 -5 .&dcubbd- R.vbrdocbkr9.1001 12 m a R. 6, Adam. This Subkrse shall be binding on and inure to the benefit of the parties and their SUCCBSW~ and assigns, all ef whom shall be @intly and SeVWally liable - hereunder, except as may otherwise be provided herein. S. TimeafFuo nee. 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 breaccI of any term, covenant or condition contained in this Sublease shall not be deemed to be a waiver of such tm, covemnt or qmdition of any subsequent breach thereaf, or of any other term, covenant or condiicm contained in this Sublease. CarWad’s, or County Airports’, subsequent acceptance of partial rmf or perf or ma^ by Sublessee shall not be deemed to be an accord and satirdadia or a waiver of any precediq breach by Sublessee of any term, covenant OT dltian u this Sublease by mmon of such breach, @le88 of cafkd’8 or county AifpOfb’ knowledge of such preceding breach at the time ufCa&bad’s or County Airports’ acceptance. The failure on the part of Carlsbad to require exad or full and mplete compliance with any of the cov~s, condi of agwmmb 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 hefeaf. No custom or practice which may arise or graw up between the parties hereto in the course of administering this Sublease shall be construed to waive, estop or in any way lessen th right of Carlsbad to insist upon the full performance of, or compliance with, any term, covenant or condition Weof by Sublessee, or construed to inhibit or prevent the right! of Carlsbad to exercise *b rights with respect to any default, dereliction or breach of this Sublease by Sublessee. IN WIT&= WHEREOF, Carlsbad and Sublessee have duly executed this Sublease as d&O day and year first above written. c- SUBLESSOR: Dated: November 3, 1997 C B ods-cadG&bd- mw7.324 R.vldOdDkr@.lm 13 e m SUBLESSEE: COAST WASTE MANAGEM€NT, INC. By: Dated: foh?hF mw cze APPROVED AS TO FORM: Dated: lo(?/w WORDEN, WILLIAMS, RICHMOND & ELLIS ~lfOrCitydcah8bad Dated: Io (11 197 - -, €.WlUC4bn )sJmd By: e- forc coast waste Management, I= NOTE: THIS SUBLEASE HAS BEEN REVIEWED AND APPROVED 6Y THE COUNT OF SAN DlEGO AIRPORTS DMSION, IANDOWNER AND MASTER LESSOR, AS SET FORTH IN THE ATACHED CONSENT TO SUBLEASE. * ms*c#rHcukbd- mw7924 RwoQPkcO, lW7 14 21061 S. We$ Torrance, CA (310) 212-70! a e (310) 222-87( USA WASTE 0- PACIFIC ,. REGION . -. October 17, 1997 D. Dwight Worden, Esq. Worden, Williams, Richmond & Ellis 462 Stevens Avenue, Suite 102 Solana Beach, CA 92075 RE: Carlsbad/Coast Palomar Station Lease and Sublease Dear Mi. Worden: I am Regional Counsel for USA Waste Services, Inc., responsible for thc 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 Vict President of Coast Waste Management, Inc., a wholly-owned subsidiary o USA Waste Services, Inc., has been duly appointed to that position by thc director of Coast Waste Management, Inc. Further, in accordance with tht Articles of Incorporation and By-Laws of Coast Waste Management, Inc., : wholly-owned subsidiary of USA Waste Services, Inc., Mr. Shaw i! authorized to execute binding agreements on behalf of Coast Wastc WA FEDERAL EXPRESS Management, Inc. Sincerely, COAST WASTE MANAGEMENT, INC. Pm~k E. William Hutton Regional Counsel EWH:md BII-341.97 0 - 0 INDUSTRIAL LEASE - AIRPORTS MCCLELLAN-FALOMAR AIRPORT CARLSBAD, CALIFORNIA LESSOR: COUNTY OF SAN DIEGO LESSEE: CITY OF CARLSBAD PARCEL: 97-0085-A1 CCSF: 85.20A, 8/96 COUNTY CONTRACT NO. 9 I 9 '7- CCSF 85.20A, 1\96 - - a - 0 INDEX ARTICLE 1: SUMMARY OF BASIC LEASE PROVISIONS ......... 1.1: Lessor o . a o o o e I o a 1 o I o . o 1 . D o D 1.2: Lessee e s . . e s o I * o Q . D . a D . . 9 s . 1.3: Premises and Property .............. 1-4: County's and Lessee's Lease Administrators , , D 1.5: Effective Date . o D a o a n .*-00"**.* 1.6: Term . o -. . -. - *. e s o D r e o D o o I - 1.7: Commencement Date o o o s o n . o . . , - . c . o 1.8: Rent Start Date ................. 1-10: Cost of Livincj- Adjustments ........... 1.12: Security Deposit e I - . . e . o - . . D . , o : 1.13: General Description of Lessee's 'Jse of 1.9: Rent . . - . .................. 1.11: Extra Rent . - ................. Premises + e - - e o D . s - ......... 1 1.14: Definitions . e . D o o o D ..""O.0..* 1 ............... 1.15: Exhibits to Lease 1 le16: Construction of Lease Provisions D D n o . s o 1 ARTICLE 2; LEASE OF PREMISES ................ : 2.1: Description o . * . o o o . o o . , e . o e . ~ 1 2.3: Reservations to County/Easement Reservations . 1 2,4: Lease Subordinate to Conditions and 2.2: Mineral Rights ................ : Restrictions Imposed by Public Agencies on Airport Operations ............. 1 County's Right to Operate Weigh Scales Facilities .................. 1 2.5: ARTICLE 3: TERM OF LEASE AND FIRST RIGHT TO PURCHASE THE PREMISES .......... ......... 1 3.1: Term; Definitions 1 3.2: First Right to Purchase the Premises ..... 1 3.3: Consideration for First Right to Purchase the Premises 1 3.4: Surrender of the Premises; Quitclaim of Lessee's Interest Upon Termination ...... 1 ARTICLE 4: RENT 1 ....................... 4.2: Extra Rent . o Q . e D (. e D . . o . . D o e e 1 ............... ................... 4.1: Base Monthly Rent ...... ......... 1 CCSF 85.20A, 1\96 - - a 0 4.3: Delivery of Rent Payments ............ 4,4; 4.5 : Cost of Living Adjustments (\‘COLAff) to the Failure to Pay Base Monthly Rent or Extra Rent; Late Charge ............... Base Monthly Rent o D c o e . , @ o D . s o . . - 4.5,1: Consumer Price Index D o . o . . e . . s o . s : ARTICLE 5: SECURITY DEPOSIT ................. : ARTICLE 6: POSSESSION AND USE ................ 6.1: Permitted Uses - . o e D o - o o a D o s . . s . . 6.2: Duties and Prohibited Conduct ......... 6.3: Compliance with Laws D D . . e s o o o r . D o , 6.4: Substance Abuse 1 e e a D . . ~ . o ., . . I o . L 6.5: Control of Premises .............. ; AIiTICLE 7: UTILITIES D D . m . o . D D . D o o o - d . D . o 2 ARTICLE 8: MEICIIANICS’ LIENG - - D . 1 D o . - . . D o - e . . 2 8.1: Mechanics’ Liens o . o e - . e - - D - - . - . . : 8.2: Contest of Lien ................ : 8.3: Right to Cure ................. : 8,4: Notice of Lien . D o o 1 e D - a . D o . o . o f 2 8.5: Notice of Nonresgonsibility .......... 2 ARTICLE 9: SECURITY ..................... Z ARTICLE 10: IMPROVEMENTS; PERSONAL PROPERTY; FIXTURES; MINOR ALTERATICINS ................ 2 10.1: Improvements ................. : 10,2: Construction Requirements ........... 2 10.3: Councy’s Costs; Indemnity ........... 2 10.4: Personal Property . . , , , , , , , , . , , , , 2 10.5: Fixtures ................... 2 10.6: Signs and Lighting .............. 2 10.7: Minor Alterations ............... 2 ARTICLE 11: TAXES, ASSESSMENTS AND FEES ........... 2 11.1: Responsibility for Payment of Taxes and Assessments ................ 2 11.2: Definition of “Taxes” ............. 2 11,3: Creation of Possessory Interest ........ 2 CCSF 85.20A. 1\96 3 - - - 0 - a - ARTICLE 12: REPAIRS; MAINTENANCE .............. 12.1: Acceptance of Premises o . - s 1 o . o * e . a 12.2: Lessee's Repair and Maintenance Obligatlons o - 12.3: Lessee's Failure to Maintain ......... 12.4: Right to Enter c a Q o o o . e s . . o . o - . 12.5: Leasehold Compliance Surveys ......... 12.6: County Not Obligated to Repair or Maintain: Lessee's Waiver of California Civil Code Section 1942 e D D o 'DD*eO-a=-"-.' ARTICLE 13: INDEMNITY AND INSURANCE . . D s . . D e m . . o e 13.1: Indemnity . . o D a D . Q o c . . + . . D . . o 13.2: Insurance ................... ARTICLE 14: HAZARDOUS MATERIALS o I b . I ~ , ~ ~ , . , ~ ~ . 14.1: Hazardous Materials Laws - Definition . a . D , 14.2: Hazardous Materials - Definition ....... 14.3: Lessee's Representations and Warranties .... 14.4: Indemnification by Lessee ........... 14.5: Remedies Cumulative; Survival D D o . . , 1 . . 14.6: Inspection .................. 14.7: Underground Storage Tanks ........... ARTICLE 15: ASSIGNMENT, SUELEASING ANI2 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 o ........... 15.4: NO Release of Lessee 15.6: Approval of Temporary or Limited Activities by .............. 15.5: No Merger ...... .............. County : .................... ARTICLE 16: DEFAULTS BY LESSEE; COUNTY'S REMEDIES ...... : 16.1: Events of Default : ........ ---.-----.-- L 16.2: Notices 16.3: County's Rights and Remedies ......... 1 16.4: County's Damages 1 16.5: Lessee's Waiver ............... ............... ................ 1 4 CCSF 85,20A, 1\96 - - -- e 11)- - ARTICLE 17: DEFAULTS BY COUNTY; REMEDIES d . D o . o o ., o I ARTICLE 18: ABANDONMENT ~ D = D o e D . ~ . o s e D ~ c o . - ARTICLE 19: BANKRUPTCY . 1 5 e e , o D o o a D o ~ e I - ~ o 19.1: Right of Termination o = o . . # . ~ s D . ~ . 19.2: Request for Information a o . e . . D D .I f ~ ~ ,ARTICLE 20: DAMAGE OR DESTRUCTION .............. 20.1: Insured Casualty . . o . o D . o D . n . ” . . 20.2: Construction Provisions ............ 20-3: Abatement of Rent s , o D D e v o D ” ~ o e . o 20*5: Uninsured Casualty ~ . , - D - o o o - o - , . 20.6: Major Destruction ............... ARTICLE 21: EMINENT DOMAIN ................. 21.1: Condemnation ................. 21.2: Continuation of Lease After Condemnation . . ~ 21.3: Lessee’s Award ................ 21.4: Allocation of Condemnation Award for a Total Taking of the Premises ......... ARTICLE 22: SALE OR MORTGAGE I3Y COUNTY ........... 22.1: Saie or Mortgage . o D s I a . - . D e - I . . 22.2: Release on Sale ................ ARTICLE 23; SUBORDINATION; ATTORNMENT ............ 20-4: Release of Liability o - o * o o D . o o . @ s 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 ................ CCSF 85.20A. 1\96 5 - - - - W 0 __ - - ARTICLE 29: AFFIRMATIVE ACTION PROGRAM ........... ARTICLE 30: WAIVER OF RELOCATION ASSISTANCE BENEFITS . + . . 30.1: Relocation Assistance Benefits e r e . o c . , 30.2: Lessee‘s Waiver and Release of Relocation Benefits ................... ARTICLE 31: RECORDS, ACCOUNTS AND AUDITS .......... ARTICLE 32: GENERAL PROVISIONS o o @ I o o I , 1 , ~ ~ . o . 32.1: Authority . . a o . o D D D + . o o o e 1 o e D 32.2: Brokers D . . - - D ., e o * . . e 6 D o . o . ~ 32.3: Captions ................... 32,4: County Approval e o D e , e . e . o . . D s o 1 32.5: Cumulative Remedies . @ o o . . e , o . . s . D 32,7: Estoppel Certificate ............. 32-8: Exhibits ................... 32.6: Entire Agreement ............... 32-9: Force Majuere ................. 32.10: Governing Law ................ 32.11: Interpretation ................ 32.12: Joint and Several Liability ......... 32.13: Lessee’s Lease Adminlstratlon . . - D . . e . 32.14: Modification ................. 32.16: Payments ................... 32.17: Successors & Assigns ............. 32.18: Time of Essence ............... 32-19: Waiver .................... 32.15: Partial Invalidity o o , ” , , D , . o . . ~ . EXHIBIT A: DESCRIPTION AND PLAT OF THE PREMISES EXHIBIT B: FEDERAL AVIATION ADMINISTRATION REQUIREMENTS EXHIBIT C: MCCLELLAN-PALOMAR AIRPORT INDUSTRIAL AREAS DEVELOPMEP 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 85.20A. 1\96 6 - - - -- - m e - - (2) : Commercial General Liability Insurance (3) : Required Liability Policy Coverage (4 1 : Additional Insured Endorsement (5) : Primary Insurance Endorsement (6): Form of Liability Insurance Policies (1) : Deductible (2) : Rental Income Insurance (3) : Loss Payee (4) : Proceeds of Insurance Liability Insurance Liability Insurance (1) : Certificates of Insurance (2) : Claims Made Coverage (3): Failure to Obcain or Maintain Insurance; County (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 B: All Risk Fire Insurance C: Comprehensive Automobile/Aircraft /Watercraft D: Statutory Workers' Compensation and Employer's E: General Provisions Remedies EXHIBIT F: COUNTY OF SAN DIEGO REQUIRED SUBLEASE PROVISIONS CCSF 85.20A. 1\96 7 - - - -- w 0 ~ - INDUSTRIAL LEASE AGREEMENT (AIRPORTS) THIS INDUSTRIAL, LEASE AGREEMENT ("Lease") is made and entered into effective as of f 1997 ('!Effective Date" ) by and between the COUNTY OF SAN DIEGO, a political subdivision of the State of California (llCountylr), and the CITY OF CARLSBAC a municipal corporation ("Lessee") . IN CONSIDERATION OF THE RENTS AND COVENANTS set forth in this Lease, the County hereby leases to Lessee, and Lessee here leases from County, the Premises described in Article f (SUMMAR OF BASIC LEASE PROVISIONS) below, upon the following terms and conditions: ARTICLE f SWRY 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 85.20A, 1\96 8 - - ~ -- - W 0 - - 1.3 Premises and ProDertva The Premises means that approximately 10.975 acres designated Parcel 97-0085-A1 as delineated on Exhibit "Arr (DESCRIPTION AND PLAT OF THE PREMISES attached hereto and by this reference incorporated in this Leas! The term "Property", as used herein, includes the Premises, ail buildings and improvements to the Premises, the parking lots ani any parking structures appurtenant to the buildings, and such other facilities, structures and improvements located thereon. 1,4 County's and Lessee's Lease Administrators: This Lea shall be administered on behalf of County by the Director, Department of General Services, County of San Diego, or by such personss duly-authorized designee, referred LO collectively in this Lease as IlCounty'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 a "Lessee 1 s Lease Administrator" D 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,Y Rent: The Base Monthly Rent is TWENTY-THREE THOUSAND SIX HUNDRED THIRT?-FOUR DOLLARS AND NINETY CENTS ($23,634.90) a 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 Livins Adjustments: See Section 4.5. [COST LIVING ADJUSTMENTS (COLA) TO TBE 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 a "Extra Rent I' o CCSF 85.20A, 1\96 9 - - - -- - m 0 - 1.12 SeCUritv DeD0si.k: TWENTY-THREE THOUSAND, SIX HUNDREE THIRTY-FOUR DOLLARS AND NINETY CENTS ($23,634.90). See Article (SECURITY DEPOSIT) . 1.13 General DescriDtion of Lessee's Use of Premises: Lessee shall use the Premises solely for the uses specified iE 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 Definitions: 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. llAirport" means McClellan-Palomar Airport, Carlsbad, California. "Assistant Deputy Director - Aviation" means ehe Assistant Deputy Director - Aviation, Department of Public Works, County of San Diego, or upon written notice to Lessee, person as shall be designated from time-to-time the Board. llBoardll means the Board of Supervisors of the County of San Diego. "F.A.A. It means the Federal Aviation Administration. rrStandardslf means the McClellan-Palomar Airport Industrial Areas Development Standards and the McClellan-Palomar Airport Industrial and Aviatio Areas Performance Standards attached as Exhibits rrC1l and IIDII 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 b. of the such other C. d. e. f - g- 10 CCSF 85.20A, 1\96 - - - w 0 - on August 8, 1997 and recorded in the Office of the Recorder of the County of San Diego on Augus 14, 1997 as Document Number 1997-0389855. 1,15 Exhibits To Lease: The following drawings and speci provisions are attached hereto as exhibits and made a part of this Lease: EXHIBIT "A" - Description and Plat of the Premises. EXHIBIT IrB" - FAA Requirements. EXHIBIT llC1l - McClellan-Palomar Airport Industrial EXHIBIT IID" - McClellan-Palomar Airport Industrial 2 Areas Development Standards. Aviation Areas Performance Standards. EXHIBIT IIE" - Insurance Requirements. E XH I B I T " F " - County of San Diego Required Sublease Provisions 1,16 Construction of Lease Provisions: The foregoing provisions of this Article summarize for convenience only certi key terms of the Lease delineated more fully in the Articles ar Sections referenced in this Article. In the event of a conflic between the provisions of this Article and the balance of the Lease, the latter shall control. AFtTICLE 2 LEASE OF PREMISES 2.1 Description. County hereby leases to Lessee and Lesz hereby leases from County, for the rent and upon the covenants and conditions set forth in this Lease, the Premises described Section 1,3 (PREMISES AND PROPERTY) above, 2.2 Mineral Rishts. Notwithstanding any provision of th: 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 the Premises. CCSF 85.20A, 1\96 11 - - - -- -m 0 - 2.3 Reservations to Countv/Easement Reservations. Lessee accepts the Premises subject to any and all existing easements and encumbrances. grant or to use easements or rights-of-way aver, under, alongr a across the Premises for access, underground sewers, utilities, thoroughfares or such other facilities as it deems necessary fo 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, tha any such grant of rights by County shall require that the Premises be restored to their preexisting condition. If loss i Lessee's use of the Premises occurs because of easements and encumbrances granted after the Commencement Date of this Lease County to other parties on, through or under the Premises, the monthly rent shali be reduced proportionately to the loss in us by Lessee for the period of time such loss continues to occur. County reserves the right to establish, to 2.4 Lease Subordinate to Conditions and Restrictions ImDosed bv Public Asencies on AirDort ODerations. 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, Sta 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 SL terms and conditions, and shall, whenever County may so demand, execute, acknowledge or consent to any instrument evidencing SL terms, conditions, restrictions or provisions. Without limitir the generality of the foregoing, this Lease and Lessee's occupancy of the Premises are expressly made subordinate and subject to the terms, condicions, restrictions and other provisions of those requirements of the Federal Aviation REQUIREMENTS) and Lessee shall be bound by all such requirement This Lease Administration specifically set forth in Exhibit IJBI1 ( F= 2.5 Countv's Ricrht to ODerate Weiah Scales Facilities. County shall the right to, but not the obligation to individual or collectively, construct, operate and maintain weigh scales 2 fee collection booths on the Premises and the users of such scales shall have the right of ingress and egress to such scale 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 it 12 CCSF 85.20A. 1\96 - - - W- 0 - - 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 Term: Definitions. This Lease shall be effective as 1 the "Effective Date," which is defined as the date of execution of the Lease by County's Board of Supervisors. The term ("Term of this Lease shall commence on the "Commencement Date" and sha continue thereafter for the period specified in Article 1 (SUMMARY OF BASIC LEASE PROVISIONS), unless sooner terminated a provided in this Lease. As used in this Lease, the "Commenceme Date" means June 1, 1997. Except as otherwise specifically stated in this Lease or in any subsequent amendments hereof, th terms and conditions of this Lease shall remain in effect Term - following any extension, renewal or holdover of the original 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 Lesse 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 Premis to Other Party according to the terms and conditions contained 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 - - m 0 - 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 i 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 inte 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 upc between County and Other Party, d. In the event Lessee does not successfully fulfill 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 agency and, in such event, Lessee shall have no First Right as specified above. Premises, or any portion thereof d to any condemning government: 3.3 Consideration for First Right to Purchase the Premise 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 actic to condemn any portion of that property known as McClellan- Palomar Airport owned by County and/or controlled by the Airpoi Division of the Department of Public Works or its successors ir interest, through May 31, 2002 or any extension of the Term of this Lease. 3.4 Surrender of the Premises: Ouitclaim of Lessee's Interest UDon Termination. CCSF 85.201, 1\96 14 Lessee shall surrender possession c - - - -- m e -- - - the Premises to County upon expiration of the Term or earlier termination of this Lease. any reason, including but not limited to termination because of default by Lessee, Lessee shall execute, acknowledge and delive to County, within thirty (30) days following receipt of writter! 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 quitclairr 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 ail right of Lessee or those claiming under Lessee to the Premises. Upon termination of this Lease for ARTICLE 4 RENT 4.1 Base Monthlv Rent. Subject to adjustment as providec in Section 4.5 [COST OF LIVING ADJUSTMENTS ("COLA") TO THE BAS1 MONTHLY RENT], Lessee shall pay as rent for the use and occupar of the Premises, the Base Monthly Rent specified in Article 1 (SUMMARY OF BASIC LEASE PROVISIONS). Lessee shall pay said rer in advance, on the first day of each calendar month ("Due Date' without setoff, deductior,, prior notice or demand, commencing c the Commencement Date. 4.2 Extra Rent. Lessee shall pay, as Extra Rent, all sun of money required to be paid pursuant to the terms of this Lea: which are not payable as Base Monthly Rent, collectively refer1 to in this Lease as "Extra Rent." If such amounts or charges : 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 th< 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 PaymenEs. All rent due under this Lease shall be made payable to County of San Diego, considered paid when delivered to: and shall 1: CCSF 85.20A. 1\96 15 - - - W 0 - - 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 different address to which Lessee shall dellever the rent payments. invoices to Lessee. County may, but is not obligated to, send monthly re 4.4 Failure to Pav Base Monthly Rent or Extra Rent: Late Charcre. a. If Lessee fails to pay rent due hereunder within fifteen (15) days of the time it is due and payable, such unpai amounts shall bear interest at the rate of ten percent (10%) pt year from the date due to the date of payment, computed on the basis of monthly compounding with accual days elapsed compared a 360-day year. In addition to such interest, Lessee acknowledges that the lake payment by Lessee of any monthly rental due hereunder will cause County to incur certain costs i expenses not contemplated under this Lease, the exact amount 0: 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. not received by County from Lessee when due, immediately pay to County a late charge equal to five percent (5%) of such overdue amount. County and Lessee agree that thii late charge represents a reasonable estimate of such costs and expenses and is fair compensation to County for its loss cause( by Lessee‘s nonpayment. Should Lessee pay said late charge but fail to pay contenporaneously therewith all unpaid amounts of rent due hereunder, County’s acceptance of this late charge sh, not constitute a waiver of Lessee’s default with respect to SUI nonpayment by Lessee nor prevent County from exercising all ot: rights and remedies available to County under this Lease or unc law. Therefore, if any such monthly rental is Lessee shall b. In the event of a dispute between the parties as the correct amount of Base Monthly Rent or Extra Rent owed by Lessee, County may accept any sum tendered by Lessee in paymeni thereof, without prejudice to Councy’s claim as to the proper amount of rent owing. If it is later determined that Lessee h; CCSF 85.207% 1\96 16 - - - -- - - W - - - 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. 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. Notwithstanding any provision Of this 4 -5 Cost of Living Adjustments ("COLA" 1 to the Base Monthl: Rent. MONTHLY RENT) shall be adjusted as of the first (1st) anniversar 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: The Base Monthly Rent provided for in Section 4,1 (BASE R = A(B/C) Wherein: "R" equals the monthly rent for the COLA Period being calculated; provided, however, in no event shall the monthly re for any one-year COLA period be less than three (3) percent greater or more than seven (7) percent greater than the monthlb 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 hereinafti 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 hereinaft defined, for the month of March immediately preceding the commencement of the Term. 4.5.1 Consumer Price Index. The consumer price index wh shall be used as the source for the Consumer Price Index numb shall be that published by the United States Department of La entitled United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index for the Los Angeles-Anaheim- Y.. .. 17 CCSF 85.2QA. 1\96 1 _. - .- -- W 0 -. - - Riverside Area (1982-84 = 100). In the event that such index i not published for the Los Angeles-Anaheim-Riverside Area, another comparable index or source of such information generail recognized as authoritative shall be substituted by ag- I eement o the parties. information shall be determined by arbitration pursuant to the provisions of the Californla Code of Civil Procedure. then If the parties should not agree, such source of ARTICLE 5 SECURITY DEPOSIT Lessee has paid or will pay to County the amount set for1:h County shall not be required to kee in Article 1.12 (SECURITY DEPOSIT), as security for Lessee’s performance of this Lease. this becurity 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 c 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. will not be a limitation on County‘s damages or other righcs 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, will return the unused portion of the Security Deposit to Lesse within sixty (60) days after the end of the Term. The Security Deposit County ARTICLE 6 POSSESSION AND USE 6.1 Permitted Uses. Lessee shall use the Premises solely attache for the uses permitted and described in Exhibit aC1l (MCCLELLAN- PALOMAR AIRPORT INDUSTRIAL AREAS DEVELOPMENT STANDARDS) CCSF 85.20A, 1\96 18 - - - - 0 - - hereto, for the purposes specified in Section 1.13 (GENERAL DESCRIPTION OF LESSEE'S USE OF PREMISES). Except as provided i 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 1 (ASSIGNMENT, SUBLEASING AND ENCUMBRANCING) is permitted to use the Premises for the purposes described herein, and Lessee shal be fully responsible for the activities of its agents, employee and sublessees, if any, on the Premises. Lessee acknowledges that County reserves the right to permit others at the Airport the Premises. provide one or more of the services to be provided by Lessee or 6.2 Duties and Prohibited Conduct, Where Lessee is reasonably in doubt as to che 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. however, Lessee shall not use nor permit the use of the Premise in any manner that will tend to create waste or a nuisance. Lessee shall not use, or permit any person or persons to use, t Premises for the sale or display of any goods or services whicl- LE 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 anc wholesome condition, free from any objectionable noises or odoi 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 shE deposit all trash and rubbish of Lessee only within receptacleE provided by Lessee and located in the areas designated by Count 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 the Assistant Deputy Director - Aviation, which consent the Assistant Deputy Director - Aviation may give or withhold in tl- Assistant Deputy Director - Aviation's sole discretion. Any SL signs or antenna installed without such written consent shall k subject to removal without notice at any time, at Lessee's Lessee from erecting and maintaining safety, warning or directional signs, of reasonable dimensions, which are not used CCSF 85.20A9. 1\96 19 Notwithstanding the foregoing, expense. Nothing ;n this Section shall be deemed to preclude - - - - -0 0 - - - for advertisement of goods or services; provided, however, that all such signs must conform to applicable statutes and ordinances. 6.3 ComDliance with Laws. 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 lawf conduct of Lessee's business. Lessee shall not use the Premise 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 Dieg or the city where the Premises are situated, or of other lawful authorities. Lessee shall, at Lessee's expense, comply prompt1 with all applicab?.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. competent jurisdiction, or the admission of Lessee or any sublessee or permittee in any action or proceeding against then 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. The final judgment of any court of b. Notwithstanding any other provision of this Leas 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 ("ADA") (42 USCS §§ 12101-12213), Tit1 24 of the California Code of Regulations ("Title 24") and California Civil Code § 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 requiremer of Title I11 of the ADA ("Title III'l) (42 USCS 88 12181 - 12185 applicable during the Term to public accommodations and commercial facilities, irrespective of whether or not the particular requirements of such compliance (i) are specificall1 required by Lessee's intended use of the Premises, or (ii) may also be required of County under Title I1 of the ADA ("Title I1 20 CCSF 85.20A. 1\96 - - _- W- e (42 USCS §§ 12131 - 12165) e c. Lessee shall, with regard to the Property, assum all obligations placed on County pursuant to any existing or any required Notices of Intent or Stormwater Pollution Prevent1 future industrial stormwater permit or existing or future construction permit including, but not limited to, preparation Plans. 6.4 Substance Abuse. Lessee and its employees and agents shall not use or knowingly allow the use of the Premises for ~l- 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 ar such shall be grounds for cermination. AXTICLE 7 UTILITIES Lessee shall provide and pay for all initial utility deposits and fees, and for all utilities and services necessarl for ics 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 E such services are not separately metered or billed to Lessee bL rather are billed to and paid by County, Lessee will pay to County its pro rata share of the cost of such services, as determined by County, together with its pro rata share of the cost of making such determination. County will not be liable fc any reason for any loss or damage resulting from an interruptic 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 85.20A, 1\96 21 - * ~ - w-- e installed on the Premises, and shall have all necessary rights 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, such connections. for County's use ARTICLE 8 MECHANICS' LIENS 8.1 Mechanics' Liens. 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 tk Premises, Lessee shall cause the lien to be discharged of recoi within ten (10) days after it is filed. Lessee shall indemnlfl defend and hold County harmless from any and all liability, lo: damage, costs, attorneys' fees and all other expenses on accour of claims of lien of laborers or materialmen or others for worE performed or materials or supplies furnished for Lessee or persons claiming under Lessee. 8.2 Contest of Lien. If Lessee shall desire to contest ar lien filed against the Premises, it shall furnish County, withj the ten-day period following filing of the lien, securlty reasonably satisfactory to County cf at least one hundred fiftl percent (150%) of the amount of the lien, plus estimated costs and interest, or a bond of a responsible corporate surety in si amount, judgment establishing the validity or existence of a lien for z amount is entered, Lessee shall immediately pay and satisfy the same. conditioned on the discharge of the lien. If a final 8.3 Risht to Cure. If Lessee shall be in default in pay. any charge for which a mechanics' foreclose the lien have been filed, and shall not have given County security to protect the property and County from liabil: for such claim of lien, County may (but shall not be required 1 pay said claim and any costs, and the amount so paid, together with reasonable attorneys' fees incurred in connection therewit shall be immediately due and owing from Lessee to County as Ext Rent, and Lessee shall pay the same to County with interest at the rate specified in Section 4.4 (FAILURE TO PAY BASE MONTHLY lien claim and suit to 22 CCSF 85.20A, 1\96 - - 0 -- e RENT OR EXTRA RENT; LATE CHARGE) from the date(s) of County's payments D 8.4 Notice of Lien. Should any claim of Lien be filed against the Premises or any action against the Premises or any action affecting the title LO such property be commenced, the party receiving notice of such lien or action shall immediate11 give the other parcy written notice thereof. 8.5 Notice of Nonremonsibility. County or its representatives shall nave the right to go upon and inspect thc Premises at all reasonable times and shall have the right to PC and keep posted thereon notices of nonresponsibility or such other notices which County may deem to be proper for the protectlor, of County's interest in che Premises. Lessee shall, before rhe commencement of any work which might result in any such lien, give to County written notice of its intention to dc so in sufficient time to enable postins of such notices. ARTICLE 9 SECURITY Lessee shall be responsible for and shall provide for the security of che Premises, and CounEy shall have no responsibil: 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 prevei unauthorized access to the Premises. At Lhe Commencement Date 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 Lhis 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 - - - 0 w -- ARTICLE 10 IMPROVEMENTS; PERSONAL PROPERTY; FIXTURES; MINOR ALTERATIONS 10.1 ImDrovements. 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 t 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 Improvemer may be made without obtaining the prior written approval of thc Assistant Deputy Director - Aviation. In no event shall Lessec make or cause to Le made any penetration into or through the r( or floor of any structure on the Premises without obtaining thc 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 2 other persons and organizations entitled to use of the same. 10.2 Construction Recmirements. All Improvements to be made to the Premises shall be made under the supervision of a competent architect or licensed structural engineer and made ir conformity with any present or future ALP and Aviation Area Development Standards which are or may be adopted by Khe 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 shal provide a minimum of three (3) sets of working drawings or plar showing the planned Improvements, for County's approval, prior commencing work. All work with respect to any Improvements mus be done in a good and workmanlike manner, commenced within nine (90) days following receipt of approval therefor from the Assistant Deputy Director - Aviation, and diligently prosecuted a complete unit except during the period of work. completion of such work, Lessee shall have recorded in the offi of the San Diego County Recorder a Notice of Completion, as required or permitted by law, and Lessee shall deliver to Count within ten (10) days after completion of said work, a copy of t Notice of Occupancy and the building permit with respect theret Within sixty (60) days following completion of an Improvement, CCSF 85.20A, 1\96 24 to completion to the end that the Premises shall at all times k Upon - - m - i Lessee shall provide the County with two (2) complete sets of I1as-built" plans of such Improvement. Upon the expiration or earlier termination of this Lease, such Improvements shall not removed by Lessee but shall become a part of the Premises, such Improvements shall be performed and done strictly in accordance with the laws and ordinances relating thereto. Any 10.3 Countv's 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 indemni and defend County from any claim, demand, lien, loss, damage or expense, including reasonable attorneys' fees and costs, arisir from Lessee's construction or installation of any Improvements permitted under this Article. 10,4 Person51 ProDertv, Subject to the provisions of thc 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 reascn of the removal of any such Personal Property. 10.5 Fixtures. All Improvements constructed by Lessee, c together wit existing on the Premises on the Commencement Date, all other fixtures, excepting Lessee's trade fixtures, permanently attached to the Premises (collectively referred to this Lease as I1Fixturesii) shall become the property of County upon expiration or earlier termination of Lhis Lease. Notwithstanding the foregoing, County may require Lessee to remove any Fixtures at Lessee's own expense upon termination oj this Lease. Any damage to the Premises occasioned thereby shal 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. 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 suc removal, sale or destruction, togecher with the reasonable cost CCSF 85.2OA, 1\96 25 In the event Lessee does not - - i - -e O€ repair of damage3 ta County's property or improvements or to the Premises resulting therefrom. 10.6 Sians and Lishtina. 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 thl Assistant Deputy Director - Aviation for approval showing size, materials, colors and location. Such signs must conform to the standards contained in Exhibit aC1l (MCCLELLAN-PALOMAR AIRPORT INDUSTRIAL AREAS DEVELOPMENT STANDARDS) and to any laws or ordinances of governmental agencies having jurisdiction over Chi Premises. All exterior lighting on the Premises must conform tl the standards contained in Exhibit IrDIr (MCCLELLAN-PALOMAR AIRPORT INDUSTRIAL AND AVIATION AREAS PERFORMANCE STANDARDS) to any laws or ordinances of governmental agencies having jurisdiction over the Premises. an 10.7 Minor Alterations. 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 involv only the repair, replacement, 3r reconfiguration of non-load bearing partition walls or Fixtures,. and which do not penetrate into or through the roof or floor of any sccructure on the Premises, and which do not involve the construction of any new structures on the Premises. Aviation shall be the sole judge of whether or not any alteraci or improvement is a Minor Alteration. Director - Aviation shall promptly act on any request by Lessee for a determination as to whether an alteration or improvement a Minor Alteration. The Assistant Deputy Director - The Assistant Deputy ARTICLE If TAXES, ASSESSMENTS AND FEES 11.1 ResDonsibilitv 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 Less therein before, during or after the Term, or any extension thereof; all such payments shall be the sole responsibility of Lessee. CCSF 85.20A. 1\96 26 In addition, Lessee shall be solely responsible for - - 0- I. 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 o 11.2 Definition of "Taxestt. As used in this Lease, the term t'taxes" means all taxes, governmental bonds, special assessments, Mello-Roos assessments, charges, rent income 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) interest on taxes or penalties resulring 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 r 11.3 Creation of Possessory Interest. Pursuant to the provisions of Revenue and Taxation Code advised that the terms of this Lease may result of a possessory interest. vested in Lessee, Lessee may be subjected to the payment of real property taxes levied on such interest. responsible for the payment of any such real property taxes. Lessee shall pay all such taxes when due, and shall not allow any su& 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, or fee in a manner authorized by law. 107.6, Lessee is hereby in the creation If such a possessory interest is Lessee shall be solely assessment ARTICLE 12 REPAIRS; MAINTENANCE 12.1 AcceDtance 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 co Lessee regarding th L 27 CCSF 85.20A. 1\96 - .- --. -- - -= i ,-_ ___ .. . ___ i 0 -- 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 Oblisations. Lessef 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 pax thereof, including, without limitation, the following as applicable: 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 appropriarr: utility company has assumed these duties); all Fixtures and otk equipment installed in the Premises; all exterior and interior glass installed in the Premises; all signs, locking and closins devices; all interior window sashes, casements and frames; dooi and door frames (except for the painting of the exterior surfac thereof); floor coverings; and all such items of repair, maintenance, alteration, improvement or reconstruction as may 1 required at any time or from time to time by a governmental agency having jurisdiction thereof. Lessee's obligations undel this Article shall apply regardless of whether the repairs, foreseeable or unforeseeable, capital or noncapital, or the fa[ 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, repair, but shall not be responsible for damages resulting fror ordinary wear and tear. Lessee shall provide for trash remova: at its expense, and shall maintain all trash receptacles and trash areas in a clean, orderly and first-class condition. the roof; the heating, ventilation and air restorations and replacements are ordinary or extraordinary,. condition and state of 12.3 Lessee'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 c perform such maintenance on behalf of and for the account of 28 CCSF 85.20A, 1\96 - - -- m- m Lessee. performed, Lessee shall pay the cost thereof to County, as Extr Rent, promptly upon receipt of an invoice therefor. If County makes or causes any such repairs to be made 12.4 Riaht to Enter, 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 nc make, or cause to be made, such repairs or perform, or cause tc be performed, such work promptly after receipt of written demal! from County, and .E) that County may deem necessary in connecti 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. this Section shall imply any duty on the part of County to do a such work which, under any provision of this Lease, Lessee may required to do, nor shall County's performance of any repairs c behalf of Lessee constitute a waiver of Lessee's default in failing to do the same. reserved to it by this Seccion shall entitle Lessee to any compensation, damages or abatement of rent from County for any injury or inconvenience occasioned thereby. 12.5 Leasehold ComDliance Survevs. In addition to County' right to enter pursuant to Section 12.4 (RIGHT TO ENTER), above 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 wit 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 tc all areas of the Premises, both interior and exterior. In the event County, or its authorized agent, is not able to access a1 areas of the Premises during the time of the scheduled Survey, Lessee will reschedule a mutually convenient time for a follow survey to allow access to areas inaccessible during the initial CCSF 85.20A, 1\96 29 Nothing contained in No exercise by County of any rights Lessee acknowledges and accepts County's right and intent to - - -- m- 0 Survey appointment, and Lessee agrees to compensate County for the personnel cost of the follow up Survey at the rate of $50 f~ each hour of such follow up Survey. Refusal by Lessee to provil access to all areas of the Premises shall be considered a material breach of the Lease and grounds for terminatlon, 12.6 Countv Not Obliqated to RePair or Maintain; Lessee’s Waiver of California Civil Code Section 1942. To the extent th, any remedies specified in this Lease conflict or are inconsistel with any provisions of California Civil Code Section 1942, or ai successor statute thereto (“CC §1942”), the provisions of this Lease shall control. Lessee specifically waives any right it m, have pursuant to CC §1942 to effect maintenance or repairs to tl Premises and to abate the costs thereof from rent due to the County under this Lease, ARTICLE 13 INDEMNITY AND INSURANCE 13.1 Indemnity. Count’y shall not be liable for, and Less1 shall defend, indemnify, protecc and hold County harmless from, any and all claims, demands, liability, judgments, awards, fine, mechanics’ liens or other liens, losses, damages, expenses, attorneys’ fees and court costs (collectively referred to as iiClaimsii), arising from or in connection with, or caused by, directly or indirectly, its obligations under this Lease, negligence of Lessee or any subtenant of Lessee, or their respective contractors, licensees, invitees, agents, servants 0: employees, 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 : Lessee, and (iv) any labor dispute involving Lessee, its employees, contractors or agents. In the event that County sha exercise any of its rights under this Lease to enter the Premisc and/or the Property, or to authorize others to do so, not including normal fee booth operations, Lessee and any authorize< sublessee and their officers, employees, and agents shall not bf liable for, and County shall defend, indemnify, protect, and ho: said parties harmless from, any and all claims, demands, liability, judgments, awards, fines, mechanics‘ liens or other CCSf 85.20A, 1\96 30 charges or costs of any kind or character, including actual (i) any breach or default by Lessee of (ii) any act, omission or (iii) any use of the Premises, or any accident, - - m 0 - liens, losses, damages, expenses, charges or costs of any kind 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 Insurance. Without limiting Lessee's indemnificatic obligations to County, Lessee shall provide and maintain, durin 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 IrEr1 (INSURANCE REQUIREMENTS) attached subsection may be met by Lessee requiring any sublessee to carr the insurance specified in Exhibit "E" (INSURANCE REQUIREMENTS ) hereto; provided, however, the conditions set forth fn this ARTICLE 14 HAZARDOUS MATERIALS 14,l Hazardogs Materials Laws - Definition. As used in this Section, the term "Hazardous Materials' Laws" means any an all federal, state or local laws or ordinances, rules, decrees, orders, regulations or court decisions (including the so-called "common law") I including without limitation the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C., S 9601 et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S-C., S 1801 et seq.), the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C., § 6901 et seq,), and the California Environmental Quali Act of 1970, relating to hazardous substances, hazardous materials, hazardous waste, toxic substances, environmental conditions on, under or about the Premises, soil and ground wat conditions or other similar substances or conditions. 14.2 Hazardous Materials - Definition. As used in this Section the term "Hazardous Materialsi1 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 - - m - 0 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 publicatic requirements under any Hazardous Materials Laws, or d. is any other material or substance giving rise tc any liability, responsibility or duty upon the County or Lessee with respect to any third person under any Haza- Tdous MaEerials Law D 14.3 Lessee's ReDresentations 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 thi 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 Lessee, its agents, employees, sublessees, assigns, contractors premises, as described in Seccion 6.1 or invitees, except as required by Lessee's permitted use of th (PERMITTED USES). b. Any handling, transportation, storage, treatment 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 o disposal of Hazardous Materials which may occur on the Premises following the Commencement Date shall be promptly and thorough1 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 85.20A, 1\96 32 - - w 0 e. No underground improvements, including but not limited to treatment or storage tanks, or water, gas or oil we1 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 a 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. eo the satisfaction of Cour,ty; g.. Lessee shall promptly supply County with copies o all notices, reports, correspondence, and submissions made by Lessee to the Unfted States Environmental Protection Agency, th United Occupational Safety and Health Administration, and any other local, state or federal authority which requires submissi of any information concerning environmental matters or hazardou 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 authorit commences proceedings to sell the Premises pursuant to the lien Lessee shall either: (a) pay the claim and remove the lien fro1 reasonably satisfactory to County in an amount not less than thc 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; ai ehe Premises, or (b) furnish either (i) a bond or cash deposit 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 Macerialsl Laws affecting the Premises. 14.4 Indemnification by Lessee. Lessee and its successorz 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 - - - - m - a 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 t ~erm anywhere in the premises or on the Property, including the soil, ground water or soil vapor on or under the Property, exce to the extent Hazardous Materials are present as a result of th negligence or willful misconduct of County, its officers, employees or agents. WithouL 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 MaLerials 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 t, extent the Hazardous Materials are present solely as a result o che negligence or willful misconduct of County, its officers, employees or agents. 14.5 Remedies Cumulative: Survival. The provisions of th 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 Le governed by the laws of the State of California. 14.6 Inmection. 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 - - - m -m - 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 (excep 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 Countyls other remedies available at law and in equity, to enter upon the Premises immediately and take such action as County in its sole judgmenr. deems appropriate to remediate any actual or threatene contamination caused by Lessee's failure to comply. County wfl use reasonable efforts to minimize interference with Lessee's u of Premises but will not be liable for any interference caused County's entry and remediation efforts. Upon completion of any sampling or testing County will (at Lessee's expense if County', actions are a result of Lessee's default under this Section) restore the affected area of the Premises from any damage causec by County's sampling and testing. 14 o 7 Underaround Storase Tanks. Lessee acknowledges that on the CommencemenL Date of this Lease, two or more underground storage tanks exist on the Premises. Lessee agrees, at Lessee' 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 a: remedial steps necessary upon such removal. Upon the terminatic of chis Lease, Lessee shall, at Lessee's sole cost and expense and at the sole option of County, remove any underground storagt tank or tanks on the Premises and remediate the Premises, whethi or not such tanks are required to be removed by Federal, state ( local laws, ARTICLE 15 ASSIGNMENT, SUBLEASING AND ENCUMBRANCING 15.1 County's Consent to Subleasinq Required. Lessee shal not voluntarily or involuntarily assign, mortgage, encumber, or otherwise transfer (collectively referred to as a "Transfer") a1 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. withhold its consent to sublease until Lessee has complied with CCSF 85.20A. 1\96 35 County may - - - - m e- - the provisions of the following Sections of this Article. Any attempted Transfer shall be void and shall constitute a breach this Lease. As used in this Lease, the term "Sublease" 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 Countvls Election. Lessee's request for consent to any Sublease shall be accompanied by a written statement settin forth the details of the proposed Sublease, including (i) the name, address, business, business history and financial conditi of the sublessee (hereinafter called "Sublessee") p sufficient E enable County to determine the f inancia1 responsibility and character of the proposed Sublessee, (ii) a copy of the propose sublease containing original signatures of the two parties to t 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, a (v) any other related information which County may reasonably require. County shall have the right: (a) to withhold consent the Sublease, if reasonable; (b) to grant consent; (c) to conse provided that County is paid, as Extra Rent under this Lease, a sums or other consideration to be paid Lessee under the terms o any Sublease of the entire Premises in excess of one (1)% of th total rent due under this Lease; or (dl 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. Countyls consent to a Sublea: will not be effective until li) 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 assumec and agreed to perform all of Lesseels obligations under this Lease. Sublease shall be subject to each and every covenant, condition and restriction set forth in this Lease and to all of the right: and interest of County under this Lease except as may be otherwise specifically provided in this Lease. require any permitted Sublessee to make rent payments directly t County, in the amount of rent due under this Lease. In the eve1 Any rights acquired by a Sublessee pursuant to any County may CCSF 85.20A. 1\96 36 - - - - w e-- - of any conflict between the provisions of this Lease and the control. provisions of any Sublease, the provisions of this Lease shall 15.2.2 Denial of Consent to Sublease. If County denies : consent to the proposed Sublease, and if Lessee shall so reque: in writing, County shall provide to Lessee a statement of the basis on which County denied its consent within a reasonable t: 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, 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 che foregoing provisions of this Sectior to the contrary, the following shall be deemed to be reasonable grounds for County to withhold consent to a sublease for purpo~ of compliance with California Civil Code SecEion 1951.4: anc a. Lessee or any of its sublessees are in default as to any term, covenant or condition of this Lease, whether or nc notice of default has been given by County. b. The prospeccive Sublessee has not agreed in writi covenants an to keep, perform and be bound by all of the terms, conditions of this Lease. c. County reasonably objects to the business or financial conditic-? 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, as a condition of this Lease has not been completed to the satisfaction of County. f. Any construction of improvements required of Less( Nonpayment of the Sublease Processing Fee describt below. If Lessee believes that County has unreasonably withheld ii CCSF 85.20A, 1\96 37 - - - - - W 0 - - 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. addition, in the event that Lessee prevails in any such legal action, Lessee shall be entitled to recover by way of damages : actual out-of-pocket expenses incurred as a result of County's unreasonable failure to approve of the sublease. Lessee will I have any other right to recover damages or to terminate this Lease. In 15.2,3 Article Controllinq. In the event of any conflict between the provisions of this Article and any other provision this Lease, this Article shall control, 15.3 Sublease Processin? Fee. If County is requested to consent to a Sublease under this Article, Lessee shall pay all Countyls reasonable attorneys' fees, plus a fee of $750 ("Sublease Processing Fee") to reimburse County or County's age 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) monchs following the Commencement Date of this Lease. shall be delivered to County concurrently with Lessee's request for consent, The Sublease Processing Fee 15.4 No Release of Lessee. No permitted Sublease shall release or change Lessee's primary liability to pay the rent an 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 no 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 again the Sublessee. 15.5 No Merser. No merger shall result from a Sublease pursuant to this Article, Lessee's surrender of this Lease, or , CCSF 85.20A, 1\96 38 - - - -- w m - mutual cancellation of this Lease in any other manner. such event, County may either terminate any or all Subleases or succeed to the interest of Lessee thereunder. In any 15.6 ADDroval of Temporarv or Limited Activities bv Count Notwithstanding any provision of this Article to the contrary, the Assistant Deputy Director - Aviation may, at his or her sol 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 Lessee sha 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 mak such form available to County for inspection upon request. Nothing in this Section shall relieve Lessee from its 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 immediat terminaEion upon delivery of written notification thereof from the Assistant Deputy Director - Aviation. (IO) hours per week. responsibilities under this Lease, and Lessee shall be 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 furthe notice; b. Failing or refusing to occupy and operate the Premises in accordance with the provisions of this Lease; 39 CCSF 85.20A, 1\96 - - - -- - c. Failing or refusing to perform fully and prompt1 any covenant or condition of this Lease, specified in subparagraphs (a) and (b) above, the breach of whi Lessee is capable of curing after reasonable nocice from County other than those 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. Section 19.1 (RIGHT OF TERMINATION), below. The occurrence of any of the events set forth in 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 an 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 Ren thirty (30) calendar days; b. For a curable default, a reasonable period not t exceed ten (10) working days, provided, however, that if such default cannot be cured within said time period, Lessee shall b deemed to have cured such default if Lessee so notifies County 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 Less1 a written notice specifying the nature of the default and the provisions of this Lease breached and County shall have the rig' to demand in said notice that Lessee, and any subtenant, quit t: Premises within thirty (30) calendar days. TO the extent permitted by applicable State law, the time perioc provided in this Section for cure of Lessee's defaults under th. Lease or for surrender of the Premises shall be in lieu of, and not in addition to, any similar Eime periods described by California Law as a condition precedent to the commencement of CCSF 85.20A. 1\96 40 - - -- @ 0 - legal action against Lessee for possession of the Premises. 16.3 County's Riahts and Remedies. Should Lessee fail LO cure any such defaults within the time periods specified in the immediately preceding Section, subject to the right of Lessee t invoke the dispute resolution provisions of the Settlement Agreernenr; 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 applicable California law: any other person, except as may otherwise be required by 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 Lea: and Lessee's right to possession of che Premises, to reenter thc 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 Lesseels right to possession of the Premises. should County have reentered the Premises under the provisions c 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 - - - - e 0 - the service by County of any notice pursuant to the unlawful detainer statutes of the State of California and the surrender elects to the contrary at the time of, or at any time subsequen to, the serving of such notice and such election is evidenced b a written notice to Lessee) be deemed to be a termination of th 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 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 b additional and supplemental to a11 other rights or remedies whic County may have under laws in force when the default occurs. possession pursuant to such notice shall not (unless County 16.4 COUntV's Damaaes. Ghould County terminate this Leas< and Lessee's right to possession of che Premises pursuant to thi 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 reni that had been earned at the Lime 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 Fjroves could have been reasonably avoided; c. 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; The worth at the time of award of the amount by 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 ordinar 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 85.2DA, 1\96 42 - - - -- m - e - Premises after such default, and, where costs exceed those whic 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 appropria 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 fro 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 a Lhe maximum race dlowed by California Law. 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%). As used in 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 Lessee's Waiver. Notwithstanding anything to the contrary contained in this Article, Lessee waives (to the fulle: 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 - - -- w a - - ARTICLE 17 DEFAULTS BY COUNTY; REMEDIES if County shall neglect or fail to perform or observe any 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 County's breach. ARTICLE 18 ABWONMENT Lessee shall not vacate or abandon the Premises at any tim 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 belongi to Lessee and left on the Premises shall, at the option of County, be deemed abandoned. in such case, County may dispose said Personal Property in any manner provided by California Law and is hereby relieved of all liability for doing so. provisions shall not apply if the Premises should be closed and business temporarily discontinued thereiri on account of strikes lockouts, or similar causes beyond the reasonable control of Lessee e These -ARTICLE 19 BANKRUPTCY 19.1 Right of Termination. Should any of the following events occur, County may terminate this Lease and any interest ( 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 (3c days ; CCSF 85.20A, 1\96 44 - - - - w - 0 - 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 ProperLy, located on the Premises and Lessee fails to discharge, set asid 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 o federal law, and is not dismissed within thirty (30) days; d. Lessee makes a bulk sale of all, or substantial1 all, of Lessee's merchandise, Fixtures or Personal Property located on the Premises, except in accordance with the provisio 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 replace the same with similar items of equal or greater value a utility within three (3) days. my assignee pursiAant 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. execute and deliver to County an instrument confirming such assumption, Any such assignee shall upon dema 19.2 Reauest 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 Count3 shall request. ARTICLE 20 DAMAGE OR DESTRUCTION 20.1 Insured Casualty. Should the Lessee's merchandise, Fixtures, improvements or personal property be damaged by fire, or other perils CGvered 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 e -. - 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 parq shall have the right to termina 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 final and binding upon the parties to this Lease. 20.2 Construction Provisions. In the event of any reconstruction of the Premises required of Lessee pursuant to chis Article, Lessee shall, to che extent of available insuranct , 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 bl 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 destructic 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 thar 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. as not to interfere substantially with Lessee's use of the Premises, there shall be no abatement of rent. In the event damage to the Premises is so slight CCSF 85.20A, 1\96 . 46 - - - - w e - - 20.4 Release of Liabilitv. 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 ott party coincident with the surrender of possession of the Premis to County, except for items which have theretofore accrued and are then unpaid. In the event of termination of this Lease und this Article, all proceeds from Lessee's insurance, to the exte necessary to reimburse County for its interests under the Lease shall be disbursed and paid to County. apportioned and paid to the time of terminaLion. Monthly rent shall be 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 wichin 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 thi Lease shall continue in full force and effect, or not to perfor such reconstruction of the Premises, in which event this Lease shall cease and terminate upon Lessee's notice of its election terminate. 20.6 Major Destruction, 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) thl damage is such that the Premises cannot be repaired and restorec 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 DOYAIN 21.1 Condemnation. If all of the Premises is taken under or, if eminent domain proceedings by a party other than County, less than all of the Premises is taken under such proceeding anc in the opinion of County's Lease Administrator the part taken substantially impairs the ability of Lessee to use the remaindex of the Premises for the purposes permitted by this Lease, then CCSF 85.20A, 1\96 47 . - - - W a -- - - either County or Lessee may terminate this Lease as of the datc 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 authorit7 shall have taken possession, 21.2 Continuation of Lease After Condemnation. If this Lease is not terminated by County or Lessee, it shall remain ir 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 entit 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 the relationship that the compensation paid by the public entit 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 usel immediately before the taking, using good workmanship and new first class materials, all in accordance with the requirements < 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' feeE and other costs incurred in connection with obtaining the award) or (ii) Lessee's actual out-of-pocket cost of restoring the CCSF 85.20A, 1\96 48 - .- - W e -- - Premises; and f. County will keep any balance of the net award. 21.3 Lessee's Award. In connection with any taking, Less€ 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 Takins All awards for the total taking of the Premises the Premises. 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 t the Settlement Agreement and were made with the prior approval 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 removabl personal property. Lessee's sublessee may also pursue a claim for loss of goodwill. Notwithstanding the foregoing, any amoun of condemnation compensation due to Lessee pursuant hereto shal go first, to County to satisfy (i) County's attorneys' fees, appraisal fees, and other costs incurred in prosecuting the cla 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 t 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 Mortsage. Subject to the provisions of ARTICLE 3 (TERM OF LEASE AND FIRST RIGHT TO PURCHASE THE PREMISES), from and after the Effective Date, Couqty may at any time, without the consent of Lessee, sell, purchase, exchange, CCSF 85.20A, 1\96 49 - - -- --a e - - transfer, assign, lease, encumber or convey County's interest ii 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 tc in this Article as a IISale"). 22.2 Release on Sale. From and after a Sale, County shal 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, 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. 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 Premise or any portion thereof. this Lease is In 23.2 Attornment. In the event any proceedings are brough. for foreclosure, or in the event of the exercise of the power o sale under any mortgage or deed of trust made by County coverin! the Premises, Lessee shall attorn to the purchaser upon any sucl 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 ma; 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, CCSF 85.20A, 1\96 50 (d) - - -- ~ 0 - -W post notices of nonresponsibility or similar notices, or (e) ma repairs that this Lease requires County to make, or make repail 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) kours' written notice to Lessee to exhibit the Premises to prospective purchasers or lessees. to any adjoining space or utility services, or make repairs, b. Lessee waives any claim of injury or inconvenienc to Lesseels 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 provi 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) e County will have the right tc 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, any part of the Premises, nor will the enizry entitle Lessee to damages or an abatement of rent or other charges that this Leas requires Lessee to pay. ARTICLE 25 QUIET ENJOYMENT If Lessee is not in breach under the covenants made in thi Lease, County covenants that Lessee shall have peaceful and qui1 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 claimin! 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 - .- __ w- - a - by reason of a default by Lessee, then such holding over shall 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. 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. The Base ARTICLE 27 NOTICES 27.1 Notices. Whenever in this Lease it shall be require 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 PosEal Service, certified or registered mail, postage prepaid a shall be deemed to have been given, delivered and received thre (3) business days after the date such notice or other communication is posted by the United States Postal Service. A other such notices or other communications shall be deemed giver delivered and received upon actual receipt. Either party may, I 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 c 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 85.20A. 1\96 52 - - 0 - w -- - Lease is made and accepted upon and subject to the condition tk there shall be no discrimination against, or segregation of, ar person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in t leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the Premises, nor shall Lessee itself, or any per: 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 tenants, lessees, sublessees, subtenants or vendees in the Premises. ARTICLE 29 AFFIRMATIVE ACTION PROGRAM Lessee shall -omply with the Affirmative Action Program fc 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 inform that the County's Affirmative Action Program for Vendors provid that its requirements shall not apply to any lessee, 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. or 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 "relocation assistance benefits" ("Relocation 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 IIRelocation Statutes"), should County at some time make use of the Premises in such a way as to "displace" Lessee from the Premises. Pursuant to the Relocation Statutes, County may then become obligated to make such payments to Lessee even where SUC displacement of Lessee does not otherwise constitute a breach o CCSF 85.20A, 1\96 53 - - m - - W 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 'Idisplaced person" of reasonable expense of moving himself or herself and a family, business, or farm operation, including personal property, the actual direct loss of reestablishing a business or farm operation, but not to exceed Ten Thousand Dollars ($10,000) , 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) D (i) the actual and (ii) 30.2 Lessee's Waiver and Release of Relocation Benefits. In consideration of County's agreement to enter into this Least Lessee hereby waives any and all rights it may now have, or mal hereafter obtain, to Relocation Benefits arising out of the County's lawful exercise of its contractual rights to terminatc this Lease pursuant to its terms, whether or not such rights ar contested by Lessee or any other entity, and releases County fr 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-condemnarion actions taker: by the County or any other public agency with respect to the premises. documentation of the release and waiver provided hereby as Coun may reasonably require. Lessee shall in the future execute any further 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, recoi 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 kept and made available at one location within the limits of tk County of San Diego. County shall have the right at any 54 CCSF 85.20A, 1\96 - - - m W - reasonable time to examine and perform audits of Lessee's record pertaining to its operations on the Premises. The cost of said audits shall be borne by County; however, Lessee shall provide ti 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 m ARTICLE 32 GENERAL PROVISIONS 32.1 Authoritv. Lessee represents and warrants that it ha full power and authority to execute and fully perform its obligations under this Lease pursuant to its governing instruments, withouE 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 wriEing by County make claim for monies owed, Lessee shall indemnify, defend and hold County harmless therefrom. 32.3 Captions. The captions, headings and index appearins 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 ADDrOVal. Except where stated in this Lease t the contrary, the phrases "County's approval,'' and "County's written approval" 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 Remedies. In the event of a default undei 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 - - e -- - m 32.6 Entire Aqreement. 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. 32.7 EstOpDel Certificate. Lessee shall at any Lime duriI the term of this Lease, within five (5) business days of writter notice from County, execute and deliver to County a statement i~ writing certifying that this Lease is unmodified and in full force and effect or, if modified, stating the nature of such modification. Lessee's stacement 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. 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 up( Lessee that this Lease is in full force and effect, except to tl extent any modification has been represented by county, and thal there are no uncured defaults in the County's performance, and that not more than one month's rent has been paid in advance. Any such 32.8 Exhibits. All exhibits referred to in this Lease arc attached hereto and incorporated by reference. 32.9 Force Majeure. In the event either party is preventc or delayed from performing any act or discharging any obligatio1 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 adver, weather conditions, unavoidable casualties, strikes, labor disputes, inability to obtain labor, materials or equipment, ac' 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 tl 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 of God, governmental restrictions, regulations or controls, any - - W -* performance of such act shall be extended for a period equivalc to the period of such delay. Force Majeure shall not include i bankruptcy, insolvency, or other financial inability on the pal of either party hereto. 32.10 Governina Law. This Lease shall be governed, construed and enforced in accordance with the laws of the State of California. 32,11 InterDretation. The parties have each agreed to tl use of the particular language of the provisions of this Lease, and any question of doubtful interpretation shall not be resol7 by any rule of interpretation providing for interpretation against the parties who cause an uncertainty to exist or again: the draftsperson. 32,12 Joint and Several Liabilitv. If more than one pers or entity executes this Lease as Lessee, each of them is joint1 and severally liable for all of the obligations of Lessee undei this Lease. 32.13 Lessee's Lease Administration. Lessee confirms th2 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 norn hours of business operation on the Premises, and Lessee's Leas€ Administrator or a representative designated thereby shall be 1 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 bt-ainess hours, to resolve problems or answer question pertaining to this Lease and Lessee's operations on tk Premises m 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 invali or unenforceable, the remainder of this Lease shall not be affected thereby. Each provision shall be valid and enforceabl to the fullest extent permitted by law. 57 CCSF 85.20A, 1\96 - - rn 0- 32.16 Pavments. 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 ma( by Lessee. 32.17 Successors & Assicrns. This Lease shall be binding 1 an inure to the benefit of the parties and their successors and assigns, all of whom shall be jointly and severally liable unde this Lease, except as may otherwise be provided in this Lease. 32.18 Time of Essence. Time is of the essence of each ani every provision of this Lease. 32.19 Waiver. No provision of this Lease or the breach thereof shall be cleemed waived, except by written consent of th 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 a other term, covenant or condition contained in this Lease. County's subsequent acceptance of partial rent or performance b Lessee shall not be deemed to be an accord and satisfaction or I waiver of any preceding breach by Lessee of any term, covenant I condition of this Lease or of any right of County to a forfeitu 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 a: 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 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 exercisl its rights with respect to any default, dereliction or breach o this Lease by Lessee. CCSF 85.20A. 1\96 58 - - 0 0 IN WITNESS WHEREOF, the County and Lessee have duly executed th: Lease as of the day and year first above written. LESSEE : COUNTY: CITY OF CARLSBAD, COUNTY OF SAN DIEGO, a political subdivision of t State of California By : Tw 3.p,\ / Clerk, Board of Board of Supervisors Attest: Title: CITY CLERK LEE RAUTENKRANZ @pWifi'B $3 TO FOFR wl- l&p$y G22!:n. F! _IC._ *&A _I_^_^-.---- :;cy.m /* - 2: . . +> 2 n?d:or authorlzee by the Board Deputy Clerk m:\pts\pts.v13 JOR 091797 1440hrs CCSF 85.20A, 1\96 59 -. e- .. SOLID WASTE TRANSFER STATION AT McCLELLAN-PALOMAR AIRPORT Parcel No. 97-0085-AI (05-30-971 (WAR:PET:dlg) That portion of McClellan-Palomar Airport, in the City of Carisbad, County of San Diego, State c California, described in deed to the County of San Diego, recorded January 18, 1974 as File/Page Nc 74-014190 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 record€ June 30, 1982 at File/Page No. 82-201566 in said County Recorder's Office; thence along tf Southerly boundary of said Carlsbad land, North 78O42'04" West, 635.35 feet to a point on tt Easterly line of a 48.00 foot road and utility easement granted to said City of Carlsbad on said 198 deed; thence along said Easterly line, South 11 O17'56" West, 51 9.92 feet to the beginning of tangent 326.00 foot radius curve, concave Easterly; thence Southerly, along the arc of said curvt through a central angle of 54O45'22", a distance of 31 1.55 feet; thence tangent to said curve Soul 43O27'26" East, 11 2.20 feet; thence leaving said Easterly line, North 51 '31 '08" East, 235.72 fee thence North 61 O24'19" East, 355.40 feet; thence North 57O22'14" East, 246.04 feet to tf beginning of a tangent 50.00 foot radius curve concave Westerly: thence Northeasterly along the ar of said curve, through a central angle of 88O35'04", a distance of 77.30 feet; thence tangent to sa curve North 31 O12'50" West, 51.72 feet; thence North 53O37'13" West, 169.04 feet: thence Nor1 4O55'29" East, 93.29 feet to the POINT OF BEGINNING. NOTE The northerly boundary of this parcel (97-0085-A1) is contiguous with the southerly boundq the parcel sold by the County of San Diego to the City of Carlsbad in 1982 (FileRage No. 82- 201566). This accounts for the constant variation of zero (0) degrees, hrty-eight (38) minute: and thirty-three (33) seconds between the bearings in this legal description and the bearings or the associated plat EXHIBIT A Rev. 4May 30, 19 50300341 Page 1 of 2 - - DEPARTMENT OF GENERAL SERVICES REAL PROPERTY DlWSlON COUNTY OF SAN DlEGO maw81: DAE 7/30/97 CRAW B? W.A.R. 9w. 1’=200’ - I - - 0 - e 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 assign as a part of the consideration hereof, does hereby covenant and agree as a covenant running wil the land that in the event facilities are constructed, maintained, or otherwise operated on the sai property described in this Lease for a purpose for which a DOT program or activity is kxtended or for another purpose involving the provision of similar services or benefits, Lessee shall mair 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, Pa 21 , Nondiscrimination in Federally-Assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulation: 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 discrin ination, (3) that Lessee shall use the Premises in compliance with all other requirements impose by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, 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. 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 2 1 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 andor services to the public on the Premises herein leased. c. That in the event of breach of any of the above nondiscrimination covenants, County g. Lessee assures that it will undertake an affirmative action program as required by 14 - - - 0 L 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 1 CFR Part 152, Subpart E. Lessee assures that no person shall be excluded on these grounds fro1 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 requi 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 Airpo 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 il 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 benefi 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 airspac 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 Par 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 i will not erect nor permit the erection of any structure or object, nor permit the growth of any tre 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 ( which shall be at the expense of Lessee. n. Lessee, by accepting this Lease, agrees for itself, its successors and assigns that it wil 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. 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, operatior regulation and taking over of said Airport or the exclusive or non-exclusive use of the Airport b; the United States during the time of war or national emergency. m:\pts\pts.faa JOR 080497 0. It is understood and agreed that nothing herein contained shall be construed to grant ( - - .. - e .- e- EXHIBIT C MCCLELLAN-PALOMAR AIRPORT INDUSTRIAL AREAS DEVELOPMENT STANDARDS TABLE OF CONTENTS 1. LANDUSES .............................................................. a. Accepted Uses ........................................................... b. ProhibitedUses ........................................................... 2. CONDUCTOFUSE ........................................................ 3. BUILDINGSETBACKS ...................................................... 4. BUILDING CONSTRUCTION ................................................ I a, Coverage ............................................................... I b. Exterior Walls ........................................................... I 5. HEIGHTLIMIT ............................................................. 6. MINIMUM DISTANCE BETWEEN BUILDINGS ............................... .2 7. MULTIPLE-OCCUPANCY BUILDINGS ...................................... .2 8. REQUIRED SCREENING ................................................... 2 a. ParkingAreas ............................................................ 2 b. ScreeningTypes ......................................................... 2 c. RoofTops .............................................................. 2 9. HEIGHT OF FENCES. WALLS. AND PLANT MATERIALS ...................... .3 a. Fences and Walls ....................................................... , ,3 b. Plant Materials .......................................................... .3 10 OFF-STREET PARKJNG AND LOADING SPACE .............................. .3 a. Parking ................................................................. 3 b. Loading Space ........................................................... 3 c. Dimensions ............................................................. 3 d. Location ................................................................. 3 e. Improvement of Parking Spaces and Parking Areas ............................. .3 f. Marking of Parking Spaces ................................................ .3 g. Parking Restrictions.. .................................................. ;. .4 - -- .~ 0 - -- 0 - 11,OI"K3ITE CIRCULATION ................................................... a. Ingress and Egress ........................................................ b. Driveway Aprons........ ................................................. c. Pedestrian Walkways ....................................................... 12.SIGNS ................................................................... ' a. Identificationsigns ....................................................... c. Safety Signs ............................................................. d. RealEstate Signs ......................................................... e. SignDesign ............................................................. b. DirectionalSigns ......................................................... 13. TRASH COLLECTION AREAS .............................................. : 14.LANDSCAPING ............................................................ a. RequiredEandscaped Areas ................................................. D. Landscaping Design ..................................................... .I c. Irrigation ............................................................... I ,.I 15.OTHERREGULATIONS ..................................................... - - - - e -0 MCCLELLAN-PALOMAR AIRPORT INDUSTRIAL AREAS DEVELOPMENT STANDARDS 1. LANDUSES a. Accepted 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-Paiomar 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 tc (5) Signs pertaining only to the use conducted within buildings or signs pertaining to the permitted uses specified in 1,2, and 3 above. 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 hisher family may be permitted upon approval of the Assistant Deputy Director - Aviation. primary emphasis on processing or production, to -che exclusion of services rendered to customer, on the premises, to which end such offices shall be called process offices. 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. BWLDING CONSTRUCTION. shall not cover more than ninety percent (90%) of the net lot area. following: (8) Finance, insurance, real estate and business services, provided such services involve b. Prohibited Uses. Uses not falling into the above categories are not permitted unless a. Coverase. All buildings, including accessory buildings and structures, and all paved areas b. Exterior Walls. Any building erected within the industrial park shall conform to the (1) Exterior walls shall be concrete or masonry except where specific approval is given -1 - - - - -- e 0- ~ - - by the Assistant Deputy Director - Aviation for architecturally acceptable alternate materials anc 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 up01 approval by the Assistant Deputy Director - Aviation, 5. MINIMUM DISTANCE BETWEEN BUILDINGS. There shall be a minimum ten (10) feet between all buildings located on the same site. 7. MULTIPLE OCCUPANCY BUILDINGS. Multiple occupancy of buildings is permitted. I1 case of multiple occupancy, off-street parking, off-streer 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. REOUIRED SCREENING. 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 (1 0%) requirement of Paragraph 14. b. Screening Types. 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 a. Parkin= Areas. Where parking space areas are located so as to be visible from a street, materials or view obscuring slats to form an opaque screen. 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 (1 8) months after initial installation. c. Roof Tops. Roof top equipment such as WAC 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. (5) Planting: Plant materials, when used as a screen, shall consist of compact evergreen -2- - - - - - a 0 -- - 9. HEIGHT OF FENCES. WALLS. AND PLANTED MATERIALS a. Fences and Walls. No decorative or screening fences or walls shall exceed the €oflowing 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. Director - Aviation. permitted at any height not constituting a hazard to operation of aircraft based on the jud, Oment o the Assistant Deputy Director - Aviation. (2) All other areas: Eight (8) feet, unless otherwise approved by the Assistant Deputy b. Plant Materials. Except where used as an opaque screen, plant materials may be 10. OFF-STREET PARKING AND LOADING 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 SDace. 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. (20) feet deep. c. Dimensions. Each parking space shall be a minimum of nine (9) feet wide and twenty d. Location. All parking and loading spaces shall be on the same leasehold Premises with e. Improvement of Parking Spaces and Parking Areas. (1) All parking spaces or areas, loading berths, approaches, and driveways shall be the building or structures tk.ey are to serve. 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. -3- - .- - - 0 0 - - - g. Parking; Restrictions. On street parking within the Industrial Park shall conform with the current City of Carlsbad Code. 1 1. ON-SITE CIRCULATION a. Ingress and Egress. (1) On-site driveways shall be located so as to serve multiple purposes such as parking (2) On-site driveways shall have an unobstructed paved surface minimum width of not (3) Parking, loading areas, and driveways shall be arranged to permit vehicular traffic to and loading areas wherever possible. less than fifteen (15) feet per one-way drive, or twenty-four (24) feet for two-way drive. 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 provide 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 Aprons. All driveway aprons will be installed concurrently with individual si1 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 (1 5) 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 ol concrete, decorative gravel, paving blocks, or other aesthetically pleasing materials shall be provided. 12. SIGNS 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 extenc above the top of the parapet wall, the roof line at the wall, the eaves of the building, or portion o the building to which attached, whichever is applicable; nor shall the sign face protrude more than eighteen (1 8) inches from the face of the wall upon which it is mounted. One such sign ma be a single- or double-faced monument or fiee-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 fiontage 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. a. Identification Siens. Not more than two (2) signs identifying the name and address of -4- - - -- 0 e - - - (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, nc in addition to, the single wall sign per Premise otherwise specified herein. b. Directional Signs. 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 exceel eight (8) square feet per face or overall height of eight (8) feet above grade. c. Safety 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 (1 2) 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 (1 0) days after such space is available for lease or sale. e. Sign Desim. 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. Required Landscaping Areas. Landscaping plans shall be required and submitted for approvaI 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 (1 0%) 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- - - _- -- - 0 0 - included in the above mentioned ten percent on-site requirement. b. Landscaping Design. (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 first tree or the center of the first large shrub ten feet in height or more at maturity. be planted and a permanent type sprinkler system or similar watering system or device, adequatc 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, a1 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, law: and/or ordinances of the above mentioned agencies, the most restrictive shall apply. m:\pts\pts.ind JOR 080597 c, Irrigation, Prior to commencing any use of the property, required landscaped areas shall -6- - - -. - - .. 0 - EXHIBIT D MCCLELLAN.-PALOMAR AIRPORT INDUSTRIAL F_ND AVIATION AREAS PERFORMANCE STANDARDS TABLE OF CONTENTS PI 1. NOISE .......................... a. Standards ...................... b. Method of Measurement ................ c. SoundLevel ..................... d. Aircraft Engine Runups ................ e. Exemptions ...................... 2. GLARE .......................... a. Standards ...................... b. Prohibitions ..................... 3. ELECTROMAGNETIC INTERFERENCE ............... a. Standards ...................... b. Method of Measurement ................ 4. VIBRATION ........................ a. Standards ...................... b. Method of Measurement ................ 5. TOXIC MATTER ....................... a. Standards ...................... b. Method of Measurement ................ 6. ODOR ........................... 7. SMOKE, PARTICULATE MATTER AND OTHER AIR CONTAMINANTS , , , 8. LIOUID WASTES ...................... a. Standards ....................... b. Prohibitions ..................... 9. FIRE AND EXPLOSIVE HAZARDS ................. 10. OTHER REGULATIONS .................... - - -- .. -- 0 - - MCCLELLAN-PALOMAR AIRPORT INDUSTRIAL AND AVIATION AREAS PERFORMANCE STANDARDS 1. NOISE. a. Standards. At no point on or beyond the boundary of t leasehold Premises shall the maximum sound level resulting from a operation, activity or use exceed Leq(h) = 70 dB for continuo noise. If the measured ambient level exceeds the applicable lim noted above, the allowable one hour average sound level shall the ambient noise level. The ambient noise level shall be measur when the alleged noise violation source is not operating. b. Method of Measurement. Noise shall be measured with sound level meter having an A-weighted filter constructed accordance with specifications of the American National Standar Institute for type S-2A general purpose sound level meters. (1) Impact noise shall be measured using the fa response of the sound level meter. Impact noises are intermitte sounds such as from a punch press or drop-forge hammer, (2) Continuous noise shall be measured using the sl response of the sound level meter. c. Sound Level (Noise Level). Sound level shall mean t weighted sound pressure level obtained by the use of a sound lev meter and frequency weighting network as specified in Americ National Standards Institute specifications for sound level mete (ANSI.4-1971, or the latest revision thereof). If the frequer weighting employed is not indicated, the A-weighting is implied d. Aircraft Encrine Runups. Lessee shall restrict aircra engine tests and maintenance runups performed on the leasehc Premises to idle power settings. Lessee shall restrict aircra tests and maintenance runups at greater than power settings locations on the Airport and during the time of day authorized writing by the Assistant Deputy Director - Aviation. from the specified maximum sound level: Lessee; and emergency pressure relief valves; and and 7:OO p.m. e, Exemptions, The following sources of noise are exen (1) Transportation vehicles not under the control (2) Occasionally used safety signals, warning device (3) Temporary construction activity between 7:OO a. 1 - - - - m - 0 - 2. GLARE. a. Standards. All light fixtures or light sources shall the Federal Aviation Administration or any successor agencies ; other governmental agencies governing height, type and placement lights as they may affect the safety of aircraft operations int from and around the Airport. (1) All outdoor lighcing installed shall utilize : pressure sodium lamps and be shielded from above in such a man] that the edge of the shield shall be level with or below the cenl of the light source. (2) All light fixtures shall be designed and adjusted as to reflect light downward, away from any other premises. (3) Any operation, activity, or use producing intei glare shall be conducted wichin an enclosed or screened area such a manner that the glare emitted will not be discernible at i point on or beyond the boundary of the leasehold Premises. installed or used so as to comply with the rules and regulations In addition: b. Prohibitions. The use of floodlights on vertical horizontal surfaces, searchlights, and red, blue, or green ligl shall be prohibited; provided, however, red, green and blue ligl are permitted where required by FAA regulations as necessary j the safety of aircraft operations. 3. ELECTROMAGNETIC INTERFERENCE. a. Standards. At no point on or beyond the boundary of 1 leasehold Premises shall the electromagnetic interference result: from any operation, activity or use of equipment not licensed the Federal Communications Commission for communications navigational purposes exceed the maximum permitted values tabulat below: Section of Maximum Field Strength from-to Containincr Interference Soul Electromagnetic Spectrum at Edge of Premises 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 2 = - ~ -- 0 0 - Irrespective of the above standards, any electromagnet disturbance that causes interference with radio transmission aircraft instruments, navigational aids, or other electromagnet receptors essential to aircraft operations shall be modified abated upon request of the Assistant Deputy Director - Aviation b. Method of Measurement. The level of radiat electromagnetic interference shall be measured by using standa field strength measuring techniques. The maximum value of t tabulation shall be considered as having been exceeded if at a frequency in the section of the spectrum being measured, t measured field strength exceeds the maximum value tabulated f this spectrum section. 4. VIBRATION. a. Standards. At no point on or beyond the boundary of t leasehold Premises shall the maximum particle velocity resulti from any operation, or activity or use exceed 0.10 inches 1 second for steady-rate vibrations and 0.20 inches per second f impact vibrations. b. Method of Measurement. Vibration shall be measured wj a seismograph or complement of instruments capable of recordj vibration displacement and frequency or particle velocj simultaneously in chree mutually perpendicular directions. Wl particle velocity is computed on the basis of displacement i 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 : of the three mutually perpendicular components recorc simultaneously. (1) Steady-rate vibrations are vibrations which i continuous or vibrations in discrete impulses occurring 100 or mc times per minute. (2) Impact vibrations are vibrations in discrc impulses occurring less than 100 times per minute. 5. TOXIC MATTER. a. Standards. At no point on or beyond the boundary of * 3 - - - -- - - 0 - 0 - leasehold premises shall the release of any airborne toxic matti resulting from any operation, activiLy or use exceed 3.0 percent the Threshold Limit Value; provided, however, if a toxic substan does not have an established Threshold Limit Value, Lessee sha satisfy the County Department of Public Health that the propos levels will be safe to the general population. given as a fractional amount of the ACGIH Threshold Limit Val which is the maximum concentration permitted an industrial work for eight hours exposure per day, the American Conference of Governmental Industrial Hygienis (ACGIH). Toxic matter shall be measured at ground level habitable elevation using ACGIH or ASTM methods and shall be t average of any 24-hour sampling period. b. Method of Measurement. The maximum concentration five days a week, as adopted 6. ODOR. At no point on or beyond the boundary of the leasehc Premises shall any odorous gases or other odorous matter resulti from any operation, activity or use be detectable. 7. SMOKE, PARTICULATE MATTER AND OTHER AIR CONTAMINANTS. A operations, activities, and uses shall be conducted so as to comp with the rules and regulations of the San Diego County A Pollution Control District governing smoke, particulate matter, a other air contaminants. 8. LIOUID WASTES. a. Standards. All operations, activities, and uses sha be conducted so as to comply with the rules and regulations of t State of California Water Quality Control Board - San Diego Regi and the County San Diego. b. Prohibitions. The discharge of any toxic or was material onto the ground, into any drainage channel, or t discharge of any toxic material into any on-site leaching syst shall be prohibited. 9. FIRE AND EXPLOSIVE HAZARDS. All operations, activities, a uses shall be conducted so as to comply with the rules a regulations of the applicable fire protection agency and t Uniform Fire Code governing fire and explosive hazards. 10. OTHER REGULATIONS. In addition to the provisions of the Performance Standards, all operations on the Premises shall confc to the standards specified by the applicable Federal Aviati 4 - - 1 - - 0 0 - - - Administration Regulations, laws of the State of California and tl applicable local ordinances which regulate land use and operation In the event of a conflict between these Performance Standards a. various applicable laws, ordinances and regulations, the mo restrictive shall apply. m:\pts\pts.per JOR 080597 5 - - - - 0 e - - 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. Liabilitv Insurance. 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 Premises, in the amounts and form set forth below: operated by Lessee or any other occupant On the (1) ComDrehensive General Liability Insurance. 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 - OR (2) Commercial General Liability Insurance. A policy of Commercial General Liability Insurance which provides limits of: (a) Per Occurrence: $2,000,00 (b) Location Specific Aggregate: $2,000 , 00 (c) Products/Completed Operations: $2,000,00 (d) Personal & Advertising Injury limit: $2,000,00 (f) Medical Expense Limit (Any One Person) : $ 5,0( (e) Fire Damage Limit (Any One Fire): $ 500,0( (3) Reuuired Liability 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 - - - -- - e 0 - - - liability assumed under this Lease. (d) Personal Injury Liability (e) Independent Concractors' Liability (f) Severability of Interest clause providing that tk coverage applies separately to each insured, except with respect to the limits of liability, and that an act or omission by one c the named insureds shall not reduce or avoid coverage to the other named insureds. (4) Additional Insured Endorsement. Any general liabiliti 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) Primarv Insurance Endorsement. The coverage afforded by the additional insured endorsement described above shall app as primary insurance, and any other insurance maintained by the County, the members of the Board of Supervisors of the County, I its officers, agents, employees and volunteers, or any County self-funded program, shall be excess only and not contributing with such coverage. (6) Form of Liabilitv Insurance Policies. 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 o 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 aggregat 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. All Risk Fire Insurance 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 cos - - - - a 0 - - - of demolition and debris removal. insurance shall include coverage for (I) Lessee's merchandise, (ii) fixtures owned by Lessee, (iii) any items identified in th Lease as improvements to the Premises constructed or owned eithi by County or Lessee, and (iv) the personal property of Lessee, its agents and employees. Such policy or policies of (1) Deductible The deductible for the required fire insurance policy shall not exceed $10,000 per occurrence and shall be borne by Lessee. (2) Rental Income Insurance Lessee shall, at its sole cost and expense, maintain rental income insurance which shall assure County of receiving the minimum monthly rent from the til 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) Loss 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 Exhibii the proceeds of such insurance shall be allocated as follows: (a) Proceeds from any or all of said insurance policies shall be payable, firsti 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 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 tl insurance policy setting forth this procedure, to be disbursed t 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; (a), (c) In the event that, after paying all of the costs - - - - -- -0 - 0 - - 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. ComDrehensive Automobile/Aircraft/Watercraft Liability 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. shall be written for bodily Injury, including death, and propert. 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. Statutorv Workers' CornDensation and Emr>loyerts Liabilitv Insurance. Lessee shall provide the statutory amount of worker: compensation insurance, with a broad form all-states endorsemen 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 sha also provide U.S. Longshoremens' and Harbor Workers' Act coverage, when applicable. Such policy - - - - - 0- 0 E. General Provisions. (1) Certificates of Insurance, Lessee shall, as soon as practicable following the placement of insurance required by th Insurance Exhibit, but in no event later than ten (10) days pri 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 Lessf 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 tc 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 1 County. (2) Claims Made Coverage. If coverage is written on a l'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 similai insurance during the required extended period of coverage following expiration of the Lease, including the requirement of adding all additional insureds. (c) 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 Remedies. Lessee's failure to procure the insurance specified b this Insurance Exhibit, or failure to deliver certified copies o appropriate certificates of such insurance, or failure to make the premium payments required by such insurance, shall constitut a material breach of the Lease, and County may, at its-option, - - m -~ e - terminate the Lease for any such default by Lessee. (4) No Limitation of Obliaations. The foregoing requirements as to the types and limits of insurance coverage tc be maintained by Lessee, and any approval of said insurance by the County or its insurance consultantts), are not intended to and shall not in any manner limit or qualify the liabilities an( obligations otherwise assumed by Lessee pursuant to the Agreement, including, but not limited to, the provisions concerning indemnification. (5) Notice of Cancellation or Chanse of Coverase. All certificates of insurance provided by Lessee must evidence that the insurer providing the policy will give County thirty Lease entitled "Notices," below, in advance of any cancellation lapse, reduction or other adverse change respecting such insurance. (30) days' written notice, at the address shown in the Section of th (6) Qualifying Insurers. 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 alphabetic and financial size category rating of not less than 1 VI1 according to the current Best's Key Rating Guide, or a company of equal financial stability that is approved in writin1 by County's Risk Manager. (7) Review of Coveracre. 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 extei 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, fulfill 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 (1) net worth, and (ii) reserves for payment I claims of liability against Lessee, are sufficient to adequate11 compensate for the lack of other insurance coverage required by this Lease. Lessee's utilization of self-insurance shall not ii - - - e @ - any way limit liabilities assumed by Lessee under this Lease. (9) Sublessees' 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 Subroaation. Lessee and County waive all rights to recover against each other or against any other tenan 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, t the extent that the proceeds received from any insurance Carrie by either County or Lessee, other than proceeds from any progra of self-insurance, covers any such Claim or damage. Included i any policy or policies of insurance provided by Lessee under th Insurance Exhibit shall be a standard waiver of rights of subrogation against County by the insurance company issuing sai policy or policies. m:\pts\pts.ins JOR 080597 - - - 0 0 - EXHIBIT F 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 m be submitted to the Assistant Deputy Director Aviation with the Sublease Processing Fee, Drier to occupancy by Sublessee. 1. Parties. This Sublease is entered into by and between the City of Carlsbad, a municipal corporation, hereinafter called "Sublessor", and 19 , also known as County of San Diego Contract No. Lessee and County of San Diego is Lessor under said Master Lease. hereinafter called "Sublessee", as a Sublease under the Master Lease dated - . Sublessor, under this Subleas 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 he 3. Term. The term of this Sublease Agreement shall be for commencing , 19 , and terminating 7 19- unless sooner terminated as provided herein. (Note: Termination date of Sublease cannot exceed expiration date of Master Lease.) 4. Rental. Sublessee shall pay to Sublessor as rent for the Premises in advance on the first day o each calendar month of the term of this Sublease without deduction, offset, prior notice or demand, lawful money of the United States, the sum of Cents ($ ). If the commencement date is not the first day of the month, or if the Suk termination date is not the last day of the month, a prorated month installment shall be paid at the tk current rate for the fractional month during which the Sublease commences andor terminates. Reo of $ is hereby acknowledged for rental for the first m and the additional amount of $ as non-interest bearing security for performance undc Sublease. In the event Sublessee has performed all the terms and conditions of this Sublease throus the term, upon Sublessee vacating the Premises? the amount paid as a security deposit shall be retur to Sublessee after first deducting any sums owing to Sublessor, Dollars and 5. a. 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 u Premises for, or carry on, or permit to be carried on, any offensive, noisy or dangerous trade, businc - - 0 -- 0 manufacture or occupation. *6. Indemnification. Sublessee shall indemnify and save harmless County of San Diego, it offic agents, and employees from and against any and all claims, demands, liabilities, or loss of any kind upon them or any of them for injury to, or death or, persons or damage to property, as a result of, ar 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 Coun account of any such claims, demands, or liabilities. nature which County, its officers, agents, or employees may sustain or incur, or which may be imp( 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 $ $ property damage $ Workers' Compensation to statutory limits. bodily injury, each occurrence, and OR combined single limit in lieu of above. *8. Provisions Constituting Sublease. This Sublease is subject to all of the terms and conditions the Master Lease. Sublessee shall assume and perform the obligations of Sublessor and Lessee in s Master Lease, to the extent said terms and conditions are applicable to the Premises subleased pursi 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 termina 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 Relocatil Assistance provided for by local, State, or Federal law that Sublessee may be entitled to by reason c Sublease. *9. Federal Aviation Administration Requirements. In the event there is any conflict between thl provisions in this Clause and the other provisions in this Sublease, the provisions in this Clause sha' a. Sublessee, for itself, its heirs, personal representatives, successors in interest, and assign, a part of the consideration hereof, does hereby covenant and agree as a covenant running with the la 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 an0 purpose involving the provision of similar services or benefits, Sublessee shall maintain and operatt such facilities and services in compliance with all other requirements imposed pursuant to Title 49, take precedence. -2- - - - -0 e - 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 Civ 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 I of the consideration hereof, does hereby covenant and agree as a covenant running with the land that no person on the grounds of race, color, or national origin shall be excluded from participation in, de 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 thereor person on the grounds of race, color, or national origin shall be excluded from participation in, denie 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 Regulat 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 Ci.c 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 s have the right to terminate this Sublease and to re-enter and repossess said land and the facilities the and hold the same as if said Sublease had never been made or issued. This provision does not becor 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 unjus 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 ma reasonable and nondiscriminatory discounts, rebates or other similar type of price reductions to volu purchasers. e. Non-compliance with Provision d above shall constitute a material breach thereof and in event of such non-compliance Sublessor shall have the right to terminate this Sublease and the estat hereby created without liability therefore, or at the election of Sublessor, County or the United State 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, contrar agreement by which said Sublessee grants a right or privilege to any person, firm or corporation to render accommodations andor services to the public on the Premises herein subleased. g. Sublessee assures that it will undertake an affirmative action program as required by 14 Part 152, Subpart E, to insure that no person shall, on the grounds of race, creed, color, national orii or sex be excluded from participating in any employment activities covered in 14 CFR Part 152, Su 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 ass1 that it will require that its covered suborganizations provide assurances to Sublessee that they simil; will undertake affirmative action programs and that they will require assurance fiom their suborganizations, as required by 14 CFR Part 152, Subpart E, to the same effort. sees fit, regardless of the desires or view of Sublessee, and without interference or hindrance. h. County reserves the right to further develop or improve the landing area of the Airport a -3- - - - -e 11) 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. future agreement between County and the United States, relative to the development, operation or maintenance of the Airport. k. There is hereby reserved to COW@, its successors and assigns, for the use and benefit OfthP public, a right of flight for the passage of aircraft in the airspace above the surface of the Premises here subleased. This public right of flight shall include the right to cause in said airspace any noise inheren in the operation of any aircraft used for navigation or flight through the said airspace or landing at, taking off fiom or operation on the Airport. 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 \ not erect nor permit the erection of any structure or object ncr permit the growth of any tree on the 1 subleased hereunder that conflicts with Part 77 of the Federal Aviation Regulations. In the event th 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 ( which shall be at the expense of Sublessee. n. Sublessee by accepting this Sublease agrees for itself, its successors and assigns that it 7 not make use of the subleased Premises in any manner which might interfere with the landing and off of aircraft fiom the Airport or otherwise constitute a hazard. In the event the aforesaid covenal breached, County andor Sublessor reserve the right to enter upon the Premises hereby subleased i cause the abatement of such interference at the expense of Sublessee. 0. It is understood and agreed that nothing herein contained shall be construed to grant o authorize the granting of an exclusive right within the meaning of Section 30Sa of the Federal A\ Act of 1958 (49 U.S.C. 1349a). p. This Sublease and all the provisions hereoi.' shall be subject to whatever right the Unii States Government now has or in the future may have or acquire, affecting the control, operatior regulation and taking over of said Airport or the exclusive or non-exclusive use of the Airport b United States during the time of war or national emergency. j. This Sublease shall be subordinate to the provisions and requirements of any existing or 1. Sublessee agrees to comply with the notification and review requirements covered in Part r * 10. Signs. Sublessee shall not erect nor cause to be erected any sign on the Subleased Prep without the prior written approval of the County Assistant Deputy Director - Aviation. A mitt 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 Di Aviation. -re, . .._ * 1 1. Substance Abuse, Sublessee and its employees and agents shall not use or knowingl: > a. ~ -4- -- * > T.*. - - .. - - m e- - use of the subleased Premises for the purpose of unlahlly driving a motor vehicle or aircraft unde influence of an alcoholic beverage or any drug or for the purpose of unlaw-fully selling, serving, usir 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, a violation of this prohibition shall be grounds for immediate termination of this Sublease. This Sublease entered into this day of Y 19-a SUBLESSEE: SUBLESSOR: BY BY BY BY (Title) (Title) (Title) (Title) Address Address m:\pts\pts.s12 JOR 080497 -5- - - - .- a . :- a. ’ . +. 1. RECORDING =QUESTED BY AND LWEN RECORDED MAIL TO: CIlY CLEM CITY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE CARLSBAD, CA 92005 2 HI . . SETTLEMENT AGREEMENT BETWEEN THE CITY OF CARLSBAD THE COU3“Y OF SAN DEGO AND COAST WASTE I\/IANAGEMENT This Settlement Agreement and Mutual Release (“Ageement”) is made and entered intc day of August, 1997, by and among the CITY OF CARLSBAD, California, a municip this 8 corporation (“Carlsbad”), CO.AST WASTE hf-kXAGEhENT, INC., a California corporation (“Coast”), and the COUNTY OF S-4N DEGO, a politicai subdivision of the State of California (the “County”). I. RE CITX LS A. The County owns the Palomar Transfer Station Site (the “Facility”) in Carlsbad, California (County Real Property Parcel Numbers 54-0127-A & 86-0442-Al-B), which it lease, to Coast under County Contract No. 7063OR (the “1984 Lease”). B. During -1 994, disputes arose among the parties as to their respective rights and duties with respect to the Palomar Transfer Station, including the foIlowing litisation: 1. Consi JYisre Mnmgerneiit, hc., et nl. v. Colmiy of Snn Diego, et nl., U.S. District Court No. 94-1823-IEG (a challenge by Coast and Carlsbad seeking to prevent th County’s termination of Coast’s 19S4 Lease). F:\CLIENTS\CTTCrU)\COAST~VS~~~~~~~C~C~~6.~ S5 FIXd SElTLE3EX AGREEMENT 1 , - .. _- -- - -0-- .--a 2. City of Corkbad v. Coiimy of Sail Diego, et ai., 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. 94-1523-EG. However, upon motion by Coast, the Authorit3 was dismissed from that action by order of the Coun filed March 11, 1996. D. In June 1996, the Parties filed a Stipulation for Settlement and Mutual Dismissals Without Prejudice with the United States Disuict 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 hrlarcos Landfill and rhe transition of assets to the Authority, the 19SI Lease to Coast was amended and extended for an “Interim Lease Period,” lasting until May 3 I, 1997. The Stipulation firther provided that durins the Inierim Lease Period, the parties would agee to “meet, confer and negotiate in zood faith with respect to the permanent, lonser term settlement.” E. On September 23, 1996, in Coii~in, of Soil Diego v. Ciry of SmMarcos, et nl., Case No. 6795 14, the Superior Court upheld a Ciry 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 611 and complete agreement to convert the dismissal in the Coast Waste, hc., et 01. 1’. Coimty 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 Ageement, and through the Leases described in section IV below (“the Leases”). It is the intent of the Parties that this be a full, final, 2 F:\CLIE~S\CITC.~\COr\ST~VS~~-~~~~~~~C.~I)6.3Sj F” SETTLEhENT AGREEMENT .. .- .. - - .- 0 - - c and complete settlement of the above-referenced litigation, except to the extent that any party ha: expressly reserved rights in this Agreement andlor 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 actins 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 Aoreement and the Leases serve a legitimate public purpose in connection with the safe and cost eFective disposal of solid waste. The Parties agree that this Agreement and its implementing Leases do not violate the federal Commerce Clause, thi Sherman Anti-Trust Act, or any other similar proi%ion of federal or state law. In consideration for the payments, promises and conditions below, ir is the mutual inrention of the Parties to release one another from these commerce claus?, 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 ofthis Ageernent, aII 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 Parti, acknowledge that such notice is deemed given. II. DE,FINITIONS A. Coast. The term “Coast” shall mean COAST WASTE blANAGEhfENT, INC., a California - corporation, and subject to the approval provisions of this Ageernent and in the Leases, its F:\CLIEMS\C‘IT(7hn\CO:\ST\~Sr~~~Cl,~ EXTCITC;\D6..33 4 FXU SE‘ITLE3 IENT-AGREEAII<?JT 1 .. .. - a - e- - - 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 handling capacity of the Facility above the SO0 tons per day currently permitted by the Carlsbad CUP. C. Facilitv. 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 cenain Lease of real property and building space which the County Airports Division, as Lessor, 2nd Carlsbad, as Lessee, intend to execute pursuant to this Agreement. and (2) the euisring 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 Agreement 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 hll 10 975 acres described in section IV. E. Leases. The term “Leases” refers collecthely to the Lease and the Sublease I;. 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 Carisbad as Sublessor and Coast as Sublessee. 4 F \CLJEKI S~CTTCr\D\COAST\~’STOC~~ KhTCTTC.AD6 385 FlX.U. SElTLEhEXT .4GR€EhSE>T - .- - - -a - 0 G. Recvclables. The term “Recyclables” shall refer to those items collected and brought to the Palomar c Facility which are diverted for recycling, reclamation, or re-use and which are not sent to a landfil for disposal. H. Countv Landfill. The term “County Landfill” shall refer to the followins landfills: Ramona Landfill, Sycamore Landfill and Otay Landfill. I. Colin tv. The term “County” shall mean the County of San Diego and, where indicated, its transferee. As indicated throuzhout this Asreement, this Agreement confers rishts and obliptions on the Coiinty’s Airports Division, as the Lessor of the property, and certain riczhts an obligations on the County’s Soiid Waste Senices. The parties acknoukdee that the County is considerin2 divestiture of some or all of its solid naste assets. IVhere indicared, the County’s transferee succeeds to the rizhts and oblisations of the County’s Solid Ii‘aste Services in this A, oreement. c - 3. Divesti t we. The term “divestiture” shall mean the County’s sale of some or all of its solid waste assets TIT. SETTLEMENT A. Basic Structure. 1. Lease For Collection. ODeration. Transfer and Related Solid Waste Purposes. The County Airpons 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 F:\CLIE~S\CITC.~\CO.~STWS”\I)OCUh IEhTCTfCtUl6.3Sj r FINAL SRTLESEYf .4GREEkffST - 3 .- .~ - -. 0 .- 0 - 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. Carlsbad 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 Carlsbad of any offer to purchase or proposal to transfer fee title tc the Facility and shall allow Carlsbad ninety (90) days afier 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. 2. Transf2r ODerations. Czrlsbad as Lessee, and Coast as Sublessee, shall hav the right to conduct transfer and transport actiuities at the Facility during the term of the Lease an( Sublease on the terms and condiiions 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. I). Permits and Processino,. 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. 6 F:\CLIE~S\CITC.~\CO~ST~~S~OC~~fE~~,C~C~.3~ 5 FtXAL SETTLESENT AGREESENT .- .. -- -- w --. -a 2. Coast. Coast shall take any and all actions, provide information, and pay any fees, to promptly process through the Local Enforcement Asency (“LEA”) and the Integrate( Waste Management Board (‘‘~VMI3”) an application to amend the Solid Waste Facilities Permit (‘‘SWFP) permit to allow operation of the Facility at 800 tons per day. 3. Countv. 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 Haridliri: and Ti-ansfel-. The parties have agreed that the Facility can and should be operated by Carlsbad/Coast at its original desizn capacity of 800 tons per day, that operation at this czpacity by March 12, 1997, wifs beneficial and imponant to the region, given that the San hlarcos landfill was scheduled to close, and did close, after March 1 1, 1997, and that the use of the Facility to service 800 tons pel day is an important part of the regional plan to provide safe, cost effective and environmentally sound waste service post San klarcos 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 consisten with any terms and conditions which may from time to time be set forih in the Carlsbad CW and . in the SWFP permit. 2. Limitations on Use of Palomar Facilitv. With respect to transfer operation 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 FMAL SEITLEMENT AGREEMENT 7 F:\CLIENTS\CTTC.~\CO.~STWSTU)OCL?r IESI’ClTC.4D6.3SS .. - - 0 -- a - - which may from time to time be designated in the Carlsbad CUP. Second priority shall be Qiven 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 SLWP 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 ageement on how available capacity should be allocated. If the parties are unable to so agree within 30 days, then Carlsbad shall have the riiht to make the final decision. w (b) Self-Haul: Non-commercial, self haul loads shall be accepted on weekends only, or at such times, days and hours as nay 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 pafiies agree th2t C0.s; \vi11 carefully moniior its costs incurred in providing self haul service on the weekends, and thx during the month of September 1997 the parties shall meet and confer in good faith to rsview Coast’s actual costs incurred to that time in providing this service, and Czrlsbad 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) 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 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 is in good standing under its Sublease, Coast may use the site for its non-transfer collection and other FNhL SEITLE.\IEhT AGREEMENT -8 F:~CLIEMS\CITCXD\COr\ST~~S~~~~~~~~.C~ChnG.3x5 - .. - 0 - _, e .- business activities within the restrictions of the Carlsbad General Plan, Zoning City Code, and the CUP. 3. Transfer and TransDon. Coast, or a successor sublessee, shall transfer wast at the facility from the incoming vehicles and self haul loads, all in conformance with the CUP, th SWFP, this Agreement, and applicable federal, state, and local laws, rules and regulations that ma from time to time apply. Carlsbad shall have the right to approve of any substitute or new operatc 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. Recvclinr Coast shall have the right to recover recyclables from the wastt stream for reclamation, reuse. and resa!e. Loads entering the Facility that are 100 percent recyclables, and which are in fxt reclaimed xdor recycled and not sent for disposal, shall not bc subject to the fee payment structure set forth below applicable to all \vas:e destined for disposal. LVith respect to loads of mixed waste that enter the facility, cross the scales, and pay fees pursuan 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 tc any such recyclables picked from the waste stresm, recyclables so removed shall be re-weighed across the scales and an appropriate credit given at the same rate as the charges imposed when thc material entered the Facility such that no fees shall be paid to the County Solid Waste Services, c 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 late] determined to be recyclables within the meaning of this paragraph shaIl be paid over to Coast. F\CLIENTS\CTTCAD\COr\ST~VS~CL~.~~T.CTT6.3Sj FNAL SETTLELENT AGREEMENT 9 -. ~. - 0- .- 0 .- - In accordance with Section m(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 ofrhe Sublease enthhg the County, or its transfere Carlsbad, to exercise their rights for uncorreaed material breach, iacluding termination of Co; rights under this Agreement and termination of the Sublease. .. -. 5. KO Flow Control. Carlsbad and Coast shzl! be free to direct waste to 2 disposal site of their choosing. It is rrndersrood that disposal at a sire not covered by the CE( review and certification issued incident to the Carlsbad Planning Commission’s March 5, 15 CUP amendment approval \till require additional environmental review in the form of an in _..; ‘i .:-.” -.>. ~-. study, negative declaration, Em, or exemption. ,. .._i ‘The Fee Schedule is the schedule of fees set and published by the County or its tr for use of its solid waste facilities and services. A copy of the relevant portion of the cur- edition of the Fee Schedule is attached here.to for reference as Eshibit €3. *The parties recognize that waste from a variety of commercial haulers, as well a: self haulers, will be entering the Facility and.that these wastes may be commingled on thc floor and packaged in larger vehicles for transfer and transport. To the extent that trans contain such commingled waste, Coast’s ability to accurately report the origin ofwaste transfer loads is only as Qood as the information that non-Coast controlled .. haulers and : - - give to the County Solid Waste Services, or its transferee, at the entry gate to the Facili although Coast retains a higher degree of responsibility for accuracy in reporting as to I .. .. - ..- .... . ..~ _____“ .. .< -- . -.--,.&:G ... . . 1- ;J+; . . ‘.* of waste in Coast controlled vehicles entering the Facility. -. -* F:\CLIEIU?S\CI’TCAI)\~~~s~~~~~~OC~~ ENF.C17’CAD6.3S5 10 1 -A<*,2xG,- FISAL SEITLEXIEXT ..\GRXEXLEM -. .. - .. -- - .- . - .- e 0 - 6. TiD Fee at Palomar. The paflies agree that beginning March 12, 1997, the County was entitled to co[ [ect 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 CarIsbad acknowledge and accept the changes made by the County to the fee booths and scales to accommodate fee collectb pursuant to this Asretment, 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 2nd the Leases, the County makes the following guarantees. (a) Fee at Facilitv ete. Beginning March 12, 1997, and continuing until May 31, 2002, the total fee collected by the County Solid Wzste Services, or its transferee, for the processing, placement or disposition of solid waste at the Facility shall not esceed thirty ei@t (S38) per ton. Of that amount, County Solid Waste Services, or its transferee, shall retain seventeen (S17) dollars per ton as its share ofthe tip fee for use of the Facility. (b) Disoosal Fees For Transferred Waste. Beginnins 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 (58) dollars per ton for waste transferred fro 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 basic reduced tip fee at Otay shall be six (S6) dollars'per ton. . ,. ->>-A '.'.. (c) Disposal Fees for Waste in Excess of that Generated within tht of Carlsbad. Beginning March 12, 1997, the County Solid Waste Services has provided, an(' its transferee shall continue to provide until May 3 1,2002, a further reduction .. in the tip fee County Landfill for waste transferred from the Palomar Facility .which is in excess of the av ~ .. %,"-;,* .. ... .. a,,&& 11 F::CLIE~\TTs\C~C;\U~cO~~S~~~S~~O~~~f~~~~~Sl~C~D6.3~~ ...-.. - - FIX&- SETTLXUEM xGI1EEkEM _- - - - -- ._ - ._ -, . ' '-'-- 0 -0 -. - - - - daily tonnage of waste generated within the Civ of Carlsbad (Carlsbad’s trash)‘. A11 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 S2.50 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 oj $3.25 from the basic tip fee of $8. The parties recognize that the capacily 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 INWlB, and will be required to undergo appropriate environmentd 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. (d) Transfer and Tr2.nsDor-t Fees to CORS~. Beginning on March 12; 1997, the County Solid Waste Services has credited, and it or its trmsferee shall continue untii May 3 1,2002, to credit and p?y to Coast, tlvenry one (91) per ton ofthe Thirty Eight dollars per ton collected at the gate. This shall constitute payment in full to Coast for transfer and transport o waste to County Landfills under this Agreement. However, in the event that waste is ever directed 31n computing the amount of waste generated within the Ciry of Carlsbad and disposed of at County facilities, the parties agee that all waste senerated 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 hrther agree that the beginning number to be used as “Carlsbad’s trash” under this Agreement shall be based upon measurements of actual volunies received at the Facility from hlarch‘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 wil1,be made retroactively at each six rnon_th interval with appropriate additional charges to Carlsbad, or credits, as the case may be. - 12 - F:\CLIE~S\CTTCrU)\CO.4ST~~S~OC~~~~.C~C~6.3S 5 FTNhL SETTLEMEYT AGEELEhT - - . .- _- - .- - 0 - -- ;. -- - 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 ( greater change in the cost of fuel to Coast as set forth in the Oil Price Information Service (“OPE Fuel Price Index, either up or down, within any 6 month period. If the 15 percent threshold is rn then Coast and the County or its transferee shall share evenly in such increase, or decrease, in fi cost incurred during that 6 month period. If the parties cannot agree on the application of this fr price change sharing provision with respect to a particular situation, any party may invoke the dispute resolution provisions of section 0 of this .4greement. In addition, if Coast believes tha a direct result of entering into this Agreement, Cost experiences unavoidable material increas its insurance costs, Coast shall be entitled to present a request foi uhat it believes to be an appropriate adjustment in its compensation. If Coast presents such a request, Coast, Carisbac‘ the County Solid Waste Services, or its trznsferee, shall meet and confer in good faith to con5 the basis for the request. If the Parties agree, an appropriate adjustment shall be made in Co: compensation. If the Parties do not agree, Coast may invoke the dispute resolution provisioi Section 0 of this Agreement. .’. . :c;c . -?I __ - - . ... -1 . . . .. . .__.. I (e) Coast Collection and Transmittal to CarIsbad ofMonies for: Tonnage Reductions. Beginning on March 12, 1997, and continuing to May 31,2002, Co collected, and shall continue to collect and transmit back to Carlsbad in cash, or in such ot manner as Carlsbad may from time to time direct, and at such intervals as Carlsbad may but not more than monthly, the amount of reduced tip fees for all waste disposed of in Cc Landfills above Carlsbad’s trash as set forth above. - 13 -,*. _. -..s;i . . .... . .. .. . ,. .. i ._ . ..-;-:.<., . - !. ,- .. - .A.?./,,,,&G F:\CLIEMS\CITC.~\COAST\~‘S~.DOC~~~~T,~IT~~)6.3~ 5 : FP4.U SETTLEMENT AGFSE\EhT - .&<-.%&.- .. -. - - - .- 0- - - a- - - IV, LEASES Under the prior Interim Settlement Azreernent Coast had a one year lease from the Count! Airports Division expiring on May 3 1, 1997, for 7.243 acres. To accommodate implementation of this Agreement the parties intend to enter inro new Leases increasing the leased acreage from 7.243 acres to 10.975 acres. The parties contemplate that the following Leases will be executed a: 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 srarting June 1, 1997, shall be as set forth below in IV(A). The Leases shall conform to the following basic deal points: A. There will be a master lease from the Counrq. Airports Division to Carisbad. Key terms of blaster Lease From Countv to Carlsbad. this Lease include: 1. A c rea g e : 10.975; 2. Term : Five yesrs, commencing June 1, 1997; 3. Rent: Startins June 1, 1997: 93,634.90 per month, subject to annual Cost ofLiving Adjustments as set forth in the Lease; 4. Terms: Standard Airports Lease Terms as adjusted through negotiations of the parties; 5. Termination: Quiet enjoym,ent to Carlsbad and subleases, early termination for material breach of lease that remains .. .. .I 4 F:\CLIE~S\CTTBAD\CO.~ST~~'S~~~~L~IE~~T'Cn'Cr\D6.3.95 FNiv SETTLEXCEhT AGREEMENT - * - -- -- -.. .. * .. .- - uncorrecred after nottee, or €or material breach of Settlement Agreement that remains uncorrected after noticc 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 inrerest in the property as set forth above in paragreph KIA; Shared Tip Fee Reverities to Countv Solid Waste Services. B. At SI 7 per ton (not including recyclables) commencing &larch 12, 1997, payable to 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 operationai control and responsibility for the site. Key tsms of the Sublease will i n cl 11 de: 1. Acreage: 10.975; 2. Rent: Coast will pay all rent due on the site directly to the County Airports Division; 9 3. Operations: Carlsbad will impose such oversisht 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 .. F:\CLLEMS\CTTC.~D\CO.~ST\~;ST~D~C~~~~~\~n~.~I~6.~~j . FINAL SETTJ3EhT AGFCEE%fEhT 1s . .. - a - e 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 wilI have the right to control and operate the Facility under its Sublease, with a risht of quiet enjoyment, so long as it performs the site related obligxions of the Lease, the Sublease, the CUP, any opmiions agreement, and this Ageement. 5. Term: Five years, commencing June 1, 1997. 6. 4. Other: . 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 F:!CLIE~S\CTTC..\D\CO~ST~~Sr~O~I,~ IESECITCADG.38 5 FXAL SElTLE.\lEhT AGKEE.LIEKI' -1 6 .. _- a - - - .. . ~- a - competitive proposal process with respect to Transfer and Transporr operations at the Facility at the end of the initial five (5) yb- oar 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 bein2 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 800 tons per day of transfer act;+. The parties agee that these mensures my be included as copditions of approval of the CUP as well as part of the project descripIion if Carlsbad so desiiej io ensure that they are implemented. These measures, unless express!). srated otherwise, 2re to be funded by the County Solid Waste Services. E. Relationship of .A:1-eement to CW. 1. Settlement Aereement 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 CW., the parties agree that all ofthe folIowin,o shall apply: 17 F::CLIENTS\CTTC;\D\CO~ST\\'SnD~~~ EYr~CTTC.4D6.3S 5 . FNAL SETTL,ELIENl' AGREEMENT c -- - - - a e -- - - (a) “Surrounding Properties” shall be defined in conformance with the CarIsbad 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 propenies 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 to exist by Carlsbad incident to any CLrP enforcement action unless the effects are found, based on substantial evidence in the record, to be substantial and adverse, 2nd not occasional. ‘‘Negative effects” and “detr;mental 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 thar Carlsbad believes thz project has caused or is causing such effects, Carlsbad shall give notice to the County Solid JVaste Services, or its transferee, (with a copy to the Airports Division) andlor Coast, as appropriate to the circumstances, meet and confer in good faith, and shall give a reasonable opportuniry to cure. If the County Solid Ll‘aste 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 Qood 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. -. IS F:,.CLIES’TS\CI’(T.-\D\C(3AST\~ST-I)~~~L~ fE>T.C11‘CA!?6.3Y 5 FNAL SETTLEIKSK AGREELIEN‘T - -- .- .- - - -- 1) - - e: The provisions of this subparagraph (E) Lvere independently negotiated and agreed to as pan ofthis Settlement Agreement, are not a precedent as to any other project, and do not apply to any other project. v. MUTUAL RELE+4SES AND DISMISSALS A. Releilse of Clnims. The County, Carlsbad, Coast, and their respective heirs, executors, administrators, trusters, trustees, beneficiaries, predecessors: successors, assigns, members, partners, joint venturers, parents, subsidiaries, affiliated and re!aied entities, ofiicers, directors, shareholders, principals, agents, servants, employees, representarives, insurers, sureties, attorneys, consultants, and experts, and each of them hereby jointly zr?d severally release each other from any and liabilit) for the claims, demands, conrroversies, 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 relmd 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 Ag-eement, including without limitation those claims which Lvere or could have been asserted in either of the lawsuits referenced above in Section I.B. B. Each party is aware that it may hereafier discover claims or facts in addition to or differen 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 klly, 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 hrtherance of this intention, the releases Waiver of Protection of Civil Code 4 1542. 19 F:\CL~~~S\CTTC;\D\COAST~VS~CL~ Lzh7UTCrlD6.35 5 . F” SETTLELENT AGFSEhEM .. - - -- - *.-.- -e- v given herein shall be and remain in effect as fill1 and complete mutual releases of all such matters notwithstanding the discovery or existence of additional or diffcrent 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 CLAMS LWCH 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 hrl-ATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. 1.7. K OTICE S Any notices to be given under this Ageement 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 Divisior, 1960 Joe Crosson Drive El Cajon, CA 92020 Joseph S. Minner County Solid Waste Services County Operations Center h.lS-0383 55 5 5 Overland Avenue San Diego, CA 92 123 With a copy to: Ofice .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: County of San Diego Deparrmenr of Public Works City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 20 F:?CL~ENTS?CTTC.~D\COrlST\~S~OC~~~~ ClTCADG.3S5 FNAL SETILEAEM AGREEMENT .- .. , e--- ~- 0- 7- - With a copy to: Ron Ball, City Attorney 1200 Carlsbad Viliage Drive Carlsbad, CA. 9200s Notices to Coast should be sent to: Conrad Pawelski, President 5960 El Camino Real Carlsbad, C.4 92009 With a copy to: CWte & Brisht 355 W. Grand, Suite 2 Escondido, California 92025 Attention: Bruce White, Esq. Any party may change the person andor the address to which nolice to it shall be provided by c giving written notice to each ofthe other parries. 2 Coast Waste Management, Inc. jx. h I IS C E L L.A 3’E 0 US A. Disputed Clnims. This Agreement represents the settlement of disputed cIairns 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 c 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 bf wholly performed in California. .. C. Waiver and Amendment. F:\CLIEMS\CITCAD\COAST~VS~WOCL%IE~TCITC.AD~.~S 5 21 RNrV. SETTLEbJEM AGKEEUELT .. - -- .. -- . e.. - .- @ - 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 mzy be amended only by a written agreement executed by the parties-in-interest at the time of the modification. > D. E.n tire Aereemen t. This Agreement, its exhibits, and the Leases into which the parties intend to enter as provided in Section TV above. constitute the entire agreement benveen the Parties hereto pertaining to the subject matter hereof, fblly supersede any and all prior understandings, representations, warranties and agreements between the Parties hereto, or any of them, pertainin! to the subject matter hereof, and may be modified only by written agreement signed by all ofthe Parties hereto. w c E. Independent Advice of Counsel. Each party to this Asreernenr represmts that in executins this Ayeement it relies solely upon its own judgment, belief and knowledge, end the advice and recommendations of its own independently selected counsel, concerning the nature, extent and duration of its rights and claim and that it has not been influenced by any other party. F. Voluntarv Agreement. Each party to this Asreement further represents that it has carehlly read this Agreement, understands its contents, and signs it freely and voluntarily. F:\CLIENTS\CTTC..\D'.C~~ST~~Sr.~~C~~IE~~.ClTCr\D6.3Sj FINAL SETTLEMENT AGREEMENT 22 .~ - -- .. .. .. 0 0 -- - - - - 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 ant confer in good faith in an effort to determine \\;hether the Agreement and/or the Leases should continue. H. Attornevs’ 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 nesotiation, drafrino execution and enforcement of this Agreement, and all matters arisins out of or connected therewith, provided, however, that nothing herein shall supersede or replace the ageement between Coast and Carlsbad with respect to reimbursement of fees and costs. 3, T. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective heirs, executors, administrators, trusIors, trustees, beneficiaries, predecessors, successors, members, assigns, affiliates, partners, pannerships, 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 othenvise 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. F:\CLIENTS\CITC.~\CO~ST~~Sr~~c~~~~~,.C~C~~6,3~j FI;VALSElllEhEM AGREEMENT 23 - _- -- 0 - .. -. - - - - J. Each of the signatories hereto warrants and represents that he or she is competent and W n rrr? n tv of A 11 tho rized Si en a tu res. authorized to enter into this Asreement on behalf of the party from whom he or she purports to sign. E(. Recordin?. The parties agree that this Agreement or an abstract thereof shall be recorded in the v Office of the County Recorder of San Dieso, California on each of the parcels which comprise th Facility. L. No Assiqnment 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 Asreement. h.1. This Agreement may be esecured in tv\.o or more counterpens, each of which will be an C o 11 TI t e rp n rt s. orjgjnal, bur all of which shall constitute one and the same instrument. Pi. Assignfibilitv. The parties acknowledse that the Counry is considerins whether to sell the landfills and related solid waste disposal or processins components it owns. The parties hrther 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 thc County to any such transferee(s), who will be bound by the terms and conditions hereof. F:\CLIENTS\CTT_C~\COASTWST~~‘ST~DOC~~l~~~,C~~.~6.3~j m.u. srrmmm AGREEMWT 24 - - -- a- - - iB - 0. Dispute Resolution: Breach. I. DisDute 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 confa- 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 notic 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 shad1 rerain their full rights to litigate, at law or in equity, an): issue arising out Of, Or related 10, this .4greernent, 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 sha11 be deemed to have been he!d in the event that a Party v cives 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 Asreement 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 aiIe,oed breach, explaining the.nature of the alleged breach and describing what the Party believes is reasonably required to cure the alleged breach. F:;CLIENTS\CITC.-\D\COASTWS~.~CL~X~S~~.CITC.-\D~.~~~ FNV SElTLEbEXl' AGREEMEST 25 . _- .. - ~ - a - - - 0 (b) kght 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 ofthe date of mailing ofth notice of alleged breach. In the event that the cure cannot reasonably be accomplished within sai 20 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 Panies 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 thai a dispute arises wde: his subparagaph O(2) as to whether or not an alleged notice of breach was appropriately ,oiveg, whether the time requirements have been met, whether the cure has been efective, or with respect to any other as?ect 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 litisation remedy, Ill I// Ill Ill Ill Ill Ill 26 F:\CLIE~~S\CTTCAD\COASTWST\VS~~~~IE~TICTTCAD~.~X~ FINAL SETTLEXENT AGREELEhT - .. -- -- - 0 - - P. Dismissal of Litication. The Parties shaII 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 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 Masistrate Judse Louis Porter assigned, retain jurisdiction to mediate any disputes that may arise under this Agreement and to enforce this Asreement as may be required. IN IVITNESS LVHXREOF, the parties hereto have executed this A, Oreement as of the dar and year first noted above. Dated: - ?lqTy CITY QF CARSLB.m (h7pj2p; j! ;? b ,/ By: 8. ~ !;.* . . I;? &L? ci iC"<E. L e& sYil.1 e>'o r COC'STY OF SXX DIEGO Dated: E\% IT By: &w- 9 -8,-k?7@/ L%vT3CE €3. PR3Xc IIi . Cr~ief Aciministra-Lve Officer CO.AST WASTE M.kXAGEMENT, NC. Dated: w By: &-%$7 Arie DeJong, Pres n .. . F:\CL~ENTS\CITC.~!COAST\YSnnOC~~~~~,C~C.~D6.3~j 27 FNAL SETTITLE\[EM r\GFZE.\ENT - -- .- -- -- e' -. 0 -- - - - APPROVED .AS TO FORh.1 AND CONTENT: LVORDEN, LVrLLI.&MS: RICH;'vIOX6& ELLIS A Professional Corporation , / 1) Dared: 49) f9 Ltdk By: D. i Dwi, t Worden, Atrorney for City of Carlsbad q- -5: '\ Dated: %"p * ij .. . COLSTY OF SAX DIEGO Liii,. [;,: \j- '.LC;.': . f /' !(i/' -'..\ ,[ L.LL:.<',- c V;-~L&II DE%. Sb!Ts, k-putiy ccunty Cowsel Dated: ?//,/? 7 JVMTE & BNGHT AIiorney for Coasr Ii-este h,lanagement, Inc. A . F:\CLIENTS;C~C.~\COASTWST~VST~OC~~~~C~C.~6..;~j 'FIXAL SETTLEMEhT AGREEh.Eh1 25 - -- - - -0 0 - ACKNOWLEDGEMENT STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ) ss. On August 5, 1997 , before me, Aletha L. Rautenkranz, City C1 (here insert the name and title of the officer), personally appeared Claude A. Lewis. Navor personally known to me pam~&~xgxaa,;~&x~~~~ S~*B~L&SXX~X~ZX~-~A to be the person&) whose name@% isgaze subscribed to the within instrurnent and acknowledged to me that he@e$*y executed the same in his/-$3x authorized capacity@a-q , and that by his/kia$khak signature(+ on the instrument the person(%<), or the entity upon behalf of which the person(3 acted, executed the insrrument. WITNESS my hand and official seal. 1 r\ A0 . /yrk&/A4A dbm City Clerk I i Notary Public ACKNOWLEDGEMENT STATE OF CALIFORNIA ) COUNTY OF SF.N DIEGO ) ) ss. On August 5, 1997 , before me, Aletha L. Rautenkranz, City Cle (here insert the nane and title of the officer), personally appeared D. Dwight Worden, Attornev for the Citv of Carlsbad personally lcnown to ne ( ~~~~~~~x';~~~x-~~~-~~~~~~~~ s-f-wm-~e to be the person$@ whose name@$ is/- subscribed to the within instrunent and acknowledged to me that he/&xqdAdxcq executed the same in hispxqL..eisxix authorized capacity(&-, and that by his/keqti&mia signature(=+ on the instrument the person@), or the entity upon behalf of which the person (:=) acted , executed the instrument. WITNESS my hand and official seal. A APdd*- Notary Public City Clerk -.. 29 F.\CLIE~S\CTTC..U)\COASTWST~~S~~~IE~~CTTC..U)6 3SS RNU SETTLEXIEX AGREEXIEX - -- - m- - a - ACKNOWLEDGEMENT STATE OF CALIFORMIA ) COUNTY OF SAN DIEGO ) ) ss. On 817Jq7 , before me, dan.wI 3 ,eK Ai o&r-4 L (here inserr: t e name and t tle of the officef), dersbnally \ appeared Ti4 De, dn* personally known to me (or pPbved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) @st=e subscribed to the within instrument and acknowledged to me that capses) , and that by@yhsr/tl-cFr signature (s) on the instrument the person(s), or the entity upon beha person(s) acted, executed the instrument. @/ 7 executed the same in =/he+%=&- L :? authorized WITNESS my hand and officizl seal. ACKNOWLEDGEMENT STATE OF CALIFORNI-$ ) COUNTY OF SAN DIEGO ) ) ss. On Au6-us-r f,, I997 , before me, Ad1cc 5. C?/o~-75c~i (here insert the naze and citle of the officer), personally appeared LAwK.EE.(CE 5. T'PlCri a personally known to me (or proved to me on che basis of satisfactory evidence) to be the person(s) wkose name(s) is/are subscribed to the within instrumenc and ackno-,.iledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their sigr.ature(s) instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. on the WITNESS my hand and official seal. Notary Public F \CIlENTS\CITL'r\l>\CO.~\ST~~S~~~~~~~~T,~I KAD6 385 FINAL SETTLES [EX AGREE1 EX 30 .. ~ - - I li .' - /-. . --- \ 5; v.) 4 i - _- ?zL - om7Tlzy -1 ,;,/ s 07- F d . - Nzsy e ?;: G;,?,f=,T E/:czz~ FA - I r~~~f~-l - SI- -- -7 Lr r\ .~ 6' ...- .;- 3. ): ..! - I ... ? --?-== YKi1f.f; Ti' />!.q.;: 2- 0 I 1' f/C ;c=-z --- 47 - -c TPr- c ---- \ -. - - -- -:c2 d \"c, . /' L.r-L-5: sITz \> 3-l 'h ',* i' . ys \. \ ,\ \i /-- ,I i 1- A$., i i i L /.- . - 7T- 5' T,., p? I 6 y./ I y3 / ~~ I Y /" y /= / N ?.:-I, -8 \ 2 </ '. \ '...\ y.'.? \\ -z\ 0'. - h.)! / .% ./' . >e. -2 'id/ y ., 1 (.- p--+,"c2 i 0, 3 p%>+ ---ifip .(' -%- /?- LEGZXD r y' v .Soil- s2!?_31; Locetlo;._ I \- - -4Z-.21,",2ge 2.lcr.I - DMBK A -1. .: .\ i%fTy AND REAL PROPEXTY ntvIsIOH TE-25E /< Mia* ~ MnT t CWKTY OF SAX' DIFGO SCALI 1 'I.= 200'- PARCEL - \ - .. -. . -- -., 0 .-- - Z-S.L%Z 1 - -- .--. - e .-. - - \i :: \' 51;: &,,d / VF - PZLoi-Tjjr Transfer Solid Lczsts S?'tE h - ,.I .\:. . ' ?!e -. ,;. ..:.'e ::y, c ,' I I 9;~- f N/ 7 j' ,>; z 2' '.I . --==z-z- I- . .- 7-- 0 t I._ - -.-.;5 --- - -u 1Z-3 e Leef - - LEGEND -&I- ? S02l Saz;le ~;ocst~~~ .. . _I .., i-.> i. I -J 1- \ - 49r21Za~E ='~cr,,, Ey: F.E. 8-2-5 .~ _- -- .. 0 - - m - - ATTACHiWENT : NO. 97-191 TUESDAY, JLNE 24, 1997 June 24,191 WNDMENT TO RESOLUTION NO. 77 ESTABLISHING SOLID WAS3 MANAGEMENT AGREEMENT FEE AND REVISING SOLJD WASTE DISPOSAL I9 SCHEDULE ON MOTION OF Supervisor COX , seconded by Supervisc S later WHEREAS, Section 68.513 of the San Diego County Code authorizes this Board , be it resoived as follows: establish fees for the use of designated County Solid Waste Facilities, and NOW, TBEREFORE, BE IT RESOLVED as follows: The following fee schedule is hereby established: I. DISPOSAL FEES - EFFECTN-E. MAY 1,1997 - A. GENERAL Fees for the disposal of Solid Waste shall be based upon the actual weight of wa delivered at the Otay, Ramona and Sycamore Landfills. A minimum fee will assessed on all Charge-by-Weight loads. At the Borrego Landfill where scales are n available, fxi shall be a fiat rate based on historic averages for various vehicle tvpc At all landfills, fees shall be set rates for passenger vehicles, pickup trucks, or towi vehicle and smd trailer* combinations, whose loaded weight is less than 6,O pounds for General Refuse and 5,000 pounds for Clean Green material. Any vehicj or combdon of vehicles, whose loaded weight exceeds 6,000 pounds for refuse a 5,000 pounds for clean green material will be charged by weight. *(trailers measuring no more than 8' long X 5' wide X 3' high) PALOMAR TRANSFER STATION GATE FEE (SECnON 1-C) The fees assessed for rehse delivered to the Palomar Transfer Station. (Leas Facility). 6/24/97 (77) - %xmT I"D - -- - June 24, 19s 0 0 Fee Schedule Page 2 - - -FILL FEES (SEC TTOY I-D) The fees assessed for rehse delivered to County of San Diego landfills. RURAL CONTAINER STA TTON FEES (Sect ion T-E) ne fees assessed at the County of San Diego rural container stations for resident rehse originating in the local XMCX area^. CJ EAN GREENCLEAN WOOD WASTE FE ES Fm assessed for the disposal of L& plant and wood wastes which are suitable : mulching and not contaminated with other refix. Clean green and clean wood wa loads may be mixed. In the event of mixed loads, it is the responsibility of I customer to unload each type of waste at the appropriate recycling area or tippi deck on the lands. ECTAL HGh7DJ ING FF,ES (Section a Fees assessed, in addition to the disposal fee, for speciiic items which require spec handling for landfill disposal. ion Ill) AD?VII"ISTR-ATIVE FEES (Sect Fees as- in addition to the disposal fke and separate ftom Special Handling Fe to offset County staEtime required for various non-typical items or events. B. DETEam-ATION OF FEES 1. TOhV.4GE RATES Mixed Waste . . * * * * s I * *. a * *. . . . e * S8.00 per ton (m: Clean Green or Clean Wood Waste . . . . . . . . . . . . . . . . S35.00 per t * 2. DISCO UNT RATES a. Direct Haul Volume Discounts Discount rates will be offered to those companies with defen accounts who direct haul to the County landfills. The $38.00 per I base fee will be reduced as the Company's total annual tom: delivered to the County's system increases. b. Transfer Truck Discounts -. Discounts will be offered to transfer trucks originating from pennit transfer stations (other than the Palomar Transfer Station and Interior Zone hauhg contract.) ._ - - _-_ June 24, 19 0 0 - - Fee Schedule Page 3 1 Solid Waste Management Agreement Discounts C. Discounts will be offered to collectors that enter into Solid Wa Management Agreements with the County for waste direct hauled County landfills. 3. CARS AND PICKUP TRUCKS (Set: Section W, part E, "Vehicle Defhitions") Set rates have been established for Passenser Vehicles, Pickup Trucks, towing vehicles and small trailer combinations, whose loaded weight is I than 6,000 pounds for General Refbse and 5,000 pounds for Clean Gr materid. Any vehicle, or combination of vehicles, whose loaded wei exceeds 6,000 pounds for refuse and 5,000 pounds for clean green mate will be charged by weight. 4. FLAT RATES In all cases where the actual wei&t ofthe refuse entering the landfill disposal cannot be determined, flat rate fees (derived as the product of appropriate toqe rate times the average weight of loads for each Gate3 of vehicle or container) shall be assessed. C. PALOMAR "SFER STATION GATE FEE A11 Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $38.00 per t - D. LANDFILLFEES The Fee for the disposal of residential, commercial, demolition, and/or indust waste in County of San Diego Solid Waste Facilities is $38.00(max) per ton. minimum fe of S15.W for General Refhe and $8.00 for Clean Green will be asses on all Charge-by-Weight loads. NOTE: At the Borrego landfii where scales are not available, flat rates will assessed for all vehicles. Flat rates wilI be assessed at Sycamore, Otay and Rami when scales are inoperable. _- -- -- - June 24, 19 W 0 - - Fee Schedule Page 4 1. NGER VEHICLES m PICKITp TRUCKS General Clean Refuse Green a. Minimumhad* S 5.00 $5.00 b. Passenger Vehicle $ 10.00 $8.00 whose loaded weight is less than 6,000 pounds for rehse and 5,000 pounds for clean green c. Pickup truck, or towing vehicle $ 15.00 $ 8.00 and small trailer combination whose loaded weight is less than 6,000 pounds for refbse and 5,000 pounds for clean green At those landfills operating an on-site recycling faciiity, passenser cars and pic1 trucks carrying 100% desipared recyclable material from residential sources o will not be assessed a dispod fee. * Minimum Load : Any vehicle whose load is contained in not more tha standard 32-gdon trash cans or bags, will be assessed the minimum load f - DTSCOUNTS 2. DEFERRED ACCOLh ITS- DIRECT H4UL VOLUME Solid waste transported directly to the landfills in vehicles other than tran: trucks. Base tipping fee: $38perton(n Deferred Accounts: m nty’s Solid Waste Syste livered to t he Cou Tons/Year de 1-30,000 tondyear $36 per ton 30,001-200,000 tondyear $32 per ton >20O,OOO tondyear $30 per ton NOTES: 1) The differential rate applies to the tonnage a waste company P a deferred account direct hauls to a County landfill. 2) Tonnage delive to Palomar Transfer Station Wiu be included when calculating total am tomaze for the purposes of determining the discount rate for direct haul - - _- -- -- - June 24, 195 .- 0 :-. - Fee Schedule Page 5 3) Adjustmenls WIU be made according to the administrative policies a procedures for tippins fees. 3. TD WASTE h&kNA(?mNT AGRF,-W coT,T;ECTQBS : Solid waste transported directly to the landfills in vehicles, other than trans trucks, by collectors that have entered into a Solid Waste Manageml Agreement. Discounted Tipping Fee: $32.00 per tc NOTE: In the interim period until Solid Waste Management Agreements i approved by the Board of Supervisors and during the period alIowed : County collector permit shalI be eligible for the discount. preparing and entering into the Agreements, companies holding a va 4. TRAhTSFF,R TFWCKS Solid waste trransported in transfer trucks ori_ginating from permitted trans stations other than the Pdomar Transfer Station" a. Fee at Sycamore, Otay, Ramona and Borrego landfills for pennitl haulers hauling from a permitted transfer station $25.00 per ton - b. Fee at Otav lmdfill for permitted haulers hauling from permitted trans station geate r than 25 miles radius from the Qav landfill $17.00 per ton 'Excludes Interior Zone Rural Container Stations 5. TRkNSFER TRUCKS FROM PALOMAR TRANSFER STATION* Solid waste transported in transfer trucks originating from Palomar Trans Station. Tondda v delivered $ 8-00 per ton $5.50 per ton >800**- $4.75 per ton 1-325 326-800 - -- - - June 24, 199 -0 Fee Schedule Page 6 - NOTE: The first 325 tons per day are always charged $8.00 per ton. TI next 475 tons are charged $5.50, etc. Adjustments will be made according I the administrative policies and procedures for tipping fees. * Rates for Palomar Transfer Station are contingent on the City of Carlsbi and the County of San Diego successfi~Uy negotiating a settleme agreement and a lease ageement. ** Valid only ifwithin all permit limits and conditions. 6. SE CmECTIOx m,ES - n,AT RmS bed on $38/m In all cases where the actual weight of the rehse entering the landfill f; disposal cannot be determined, the following flat rate fees shall be assesse a. Mechanical Packers: cQ&liak%zs All Rehse Clean Greensfwoo ( A 14 cubic yards or less $107.00 $ 99.00 B 15 - 19 cubic yards s 120.00 $ 111.00 C 20 - 34 cubic ymis $228.00 $ 210.00 525 8.00 S 238.00 D $301.00 S 278.00 E F 35 - 39 cubic yzrds $320.00 $ 297.00 G 40 - 49 cubic yxds $370.00 $ 340.00 b. Compacted roll-of? 25 - 29 cubic yxds 30 - 34 cubic yards - Clean - Greens/Woo ( ihkRateSize A 14 cubic yards or less $131.00 $ 121.00 B 15 - 19 cubic yards $164.00 $ 152.00 C 20 - 24 cubic yards $199.00 $ 183.00 D 25 - 29 cubic yards $225.00 $ 208.00 F 35 - 39 cubic yards $235.00 $ 216.00 G 40 - 49 cubic yards $24 1 .OO $ 223.00 E 30 - 34 cubic yards $23 1 .OO $ 212.00 - -- - - June 24, 195 0 - 0- - - Fee Schedule Page 7 c. Un-compacted roll-off (dragon boxes): GQskRateSize m Greensfwoo A 20 cubic yards or less $236.00 $ 216.00 B 21 - 30 cubic yards 963 .OO $ 150.00 C 3 1 - 40 cubic yards S185.00 $ 170.00 Clean D 41 - 50 cubic yards s23 1.00 $ 212.00 d. Transfer Trucks $25.00 per ton (See Section I-D, Part 3a) b4iEdiW a Rate Size $289.00 BLUE A BLUE B 61 - 70 cubic yards $341.00 BLUE C 71 - 80 cubic yards $3 94.00 BLUE D 81 - 90 cubic yards $446.00 55 - 60 cubic yards BLUE E 91 -100 cubic yards $499.00 BLUE F 100-109 cubic yards $55 1 .OO BLUE G 110 cubic yards or more $604.00 e. Transfer Trucks $17.00 per ton (See Section I-B-3b) !2dG Rate Size All Rehse BLUE A 55 - 60 cubic yards $193.00 BLUE B 61 - 70 cubic yards $228 .OO BLUE C 71 - 80 cubic yards $263 .OO $29 8.00 BLUE D BLUE E 91 -100 cubic yards $333.00 BLUE F 100-109 cubic yards $368.00 BLUE G 110 cubic yards or more $403.00 - 81 - 90 cubic yards - - -- -- June 24, 199; 0- -0 - Fee Schedule Page 8 - f-. Other rehse collection vehicles: Clean lilmdim Green flood Per cubic yard of truck capacity (based on $38/ton) $ 8.00 $ 6.00 Per cubic yard of truck capacity (based on $25/ton see Section I-D, Part 3a) $ 5.25 $ 6.00 Per cubic yard of truck capacity (based on $17/ton see Section I-D, Part 3b) $ 3.50 $ 6.00 Clean 7. QTHER VEHICLES - FLAT RAES All Refbse Greennod a. Modified pickup trucks and modified trailers $25.00 $ 12.00 b. Oversize Loads in pickups s 12.00 and trailers $25.00 Trailers over 8' up to 12' bed lengh $3 1 .oo $ 28.00 c. - d. Trailers over 12' bed length and towed by any size trucks $50.00 $ 47.00 Medium trucks and vans up to 12' bed length (two axle vehicles) $5 1 .OO $ 47.00 Heavy trucks and vans over 12' bed length $96.00 $88.00 (two axle vehicles) e. f. g. Trucks consisting of 3 axles $33 1 .OO $304.00 h. Any tractor/trailer comb. (5 axle rig) or 3-axle truck in comb. with trailer (pup) $605.00 $ 558.00 -- - - 0 June 24, 19' 0- Fee Schedule Page 9 - E. RURAL CONTAINER STATIONS The rural container stations accept solid wastes and recyclable items from local servi residentid sources only. Mechanical unloading of any vehicle will not be allowed at rural container sites. 1. < Access is limited to the folloUg vehicles carrying residential wastes andor rec weight restrictions may apply at some facilities due to operational limitations). a. b. materials for whiGh designated .collection containers are provided (additional 2 Passenger vehicles (see Section VII Dehitions, Part E Vehicle Definitic Pickup trucks (see Section VII Definitions, Part E Vehicle Definition includes flatbed trucks with beds that do not exceed 6' in width or 8' in This excludes vehicles having a GVW ratins above 13,000 lbs. Vehicles larger than piclcup trucks having a verifiable GW ratins of I5,l or less, will be allowed access only when containing no more than f standard 32-gallon trash cans or bass of refuse and/or recyclable items. Trailers 8' bed length or less. Trailers gre&er than 8' and less than 12' in bed length will be allowed acc when containing no more than four (4) standard 32-gallon trash cans or refuse and/or recyclable items. Small flatbed or stakebed trucks measuring 6' X 8' X 2.5' (120 cubic feet, will be charged the pickup rate. If sideboards exceed 2.5' (30"), the veh be charged the modiiied pickup rate. c. d. e. - f. 2. DISPOSAL FEES AT RURAL CO NTAINER STATIONS (see Section VLT Definitions, Part E Vehicle Definitions) A $2.00 per standard 32-gdon bag or container fee will be assessed for aII vehicle: bagged or containerized waste or clean green materials. The combined ba, container fee shall not exceed the following set rate fee for the transport vehicl loads, not in bags or cans, will be charged the appropriate set rate): - -- June 24, 195 0 - a- Fee Schedule Page 10 - General Clean Refuse Green a. Passenger Vehicles $ 10.00 S 8.00 b. Pickup trucks and small $ 15.00 s 8.00 trailers d. Modified pickup trucks $25.00 s 12.00 e. Oversize Loads in $25.00 s 12.00 and modified trailers pickups and small trailers Note: Trash cans or bags larger than the standard 32-gallon size will be charge( each (not to exceed the flat rate for the vehicle). CI 3. RECYCLABLE M4TERIALS Recyclable materials (except Clean Green, Clean Wood Waste and White Goc which desiupated collection conkers are provided will not be charged a disposal addition to the disposal fce, an Administrative Fee will be charged for each Whit( item (see Section m Administrative Fees, Part C White Goods). All recyclable materials (except White Goods) shall be of a size which will fit i Customers may place White Goods on the ground in the appropriate area. AN refii doors must be removed by the customer. - container provided and must be loaded into the appropriate container by the cu 4. VARIOUS RESTRICTED WASTES The following solid wastes may not be disposed of at a rural container station ax be disposed of at an approved recycling center or landfill: a. b. Soil, rocks, stumps c. d. e. g. AgricuIturaI wastes h. Demolition wastes Any item which is subject to a Special Handling Fee or which requires a Ha; or Non-Hazardous Waste Manifest 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 f Construction wastes - - - - Fee Schedule Page 11 0- - 0 June 24, 199' I. Industrial and commercial wastes J- k. 1. Animal waste products (including manure) Refhe resulting from a public safety or nuisance abatement Tires unless cut or shred to particle sizes no larger than 12" II, SPECIAL ~~~~~G- FEES Items disposed at a County lanm in the following categories are subjea to special fees as specifiec fee will be in addition to the disposal charse with a maximum special handling fee not to t $150.00/vehicle except as specified in Parts A and B below. Foq-eight hour advanced scheduling is required for Items A-I;. Call the Solid Waste Office to sc an appointment. A non-hazardous waste manifest may be required for some items. A. IARGEITEMS: Any single item which due to its size, weight, volume or other physical characteristics re special handling and/or equipment or which presents a si_dcant health, safety or oper problem. 100 cu.ft.andunder ............................................. S 50.0( Over 100 cu. ft. ................................................. S 0.5c B. CONTAINERZZED SOLID INDUSTRIAL WASTE: - Containerized non-hazardous solid industrial waste &e., solidiiied resin, tar, gaphite duz 1. CONTAINERS UP TO 24 GALLONS .......................... S 1.0 (or up to 3 cubic feet) CONTAINERS 25 GAL. TO 50 GAL ........................... $ 5.0 (or 3 to 7 cubic feet) 2. 3. CONTAINERS 55 GALLONS OR GREATER. .................. $10.0 (or greater 7 cubic feet) C. NON-CONTAINZRIZED SOLID INDUSTRIAL WASTE .............. $50.( Loads consisting of more than 10 mbic yards of food waste (> 50% solids) or non-contai non-hazardous industrial waste. - -- 0- - 0 Fee Schedule Page 12 June 24, 195 D. DECONTAMINATED BIOHAZARDOUS WASTE* .................. S 50.C Loads consisting of 10 cubic yards or more of decontaminated biohazardous waste. * Loads containing less than 10 cubic yards of decontaminated biohazardous waste 7 be assessed the $50.00 Special Handling Fee. E. NON-FRIABLE ASBESTOS* ..................................... $50.( Loads consisting of 15 cubic feet or more of Non-friable asbestos containing Non-Hz waste material. * Loads containing less than 15 cubic feet ofNon-Friable Asbestos containing mater not be assessed the $50.00 Special Handling Fee. F. WASTE WATER TREATMENT BY-PRODUCTS .................... S 50.1 Loads containing waste water treatment facility by-products such as sludge (biosolids), e bar screen materials. Waste water treatment facility by-products containing less than 50% solids require appr County Solid Waste Services, the Regional Water Quality Control Board, and the Enforcement Agency. G. A”S: Persons engaged in permitted dead animal removal services are subject to Chapter 8, , 62.810 of the San Diego County Code of Regulatory Ordinmces. This requires that suc animals be disposed of at a reductiodrendering plant and therefore will not be accepted at landfills. Dead animals which are not subject to San Diego County Code as referenced above accepted. 4. Any dead animal that weighs in excess of 250 lbs. and less than 500 Ibs. or any combination of smaller dead animals in excess of 250 Ibs. and less than 5001bs. ................-.................................%25.( Any dead animal or load of dead animal(s) 500 lbs or more. .................................... $50.( 5. - m- - - - -0 - Fee Schedule Page 13 June 24, 199 H, mES=S* ............................................. %25.00/: Any t~e stump more than 5 fkt in any linear dimension in mixed loads and disposed in the 2 rehse area. * Tree stumps separated into clean green loads without contamination and less than in any linear dimension wilI be charged the Clem Green fee only. L HARD TO HANDLE MATERIAL. ................................ S 50.0 Loads containing more than 10 cubic yards of straw, metal fence, car seats, mattresses springs, or similar hard to handle materials. LARGE POLESEIPES, ETC. .................................... S 15.01 Poles, pipes, tree trunks, logs, bridge pilings, etc. over ten (10) feet long, or in excess of 12 in diameter. J. K, SPECIAL DISPOSAL S 50.0 Any item requiring craterins immediate burial or other spid handling for health and reasons. ............................................. 171. ADM3NSTRATTVE FEES - Administrative fees provide fimding for County staff the and processing and are separate from ! Handling Fees (Section n> and Fee Processing Charges (Section IVY PCL B and C). Items in the fol categories are subject to the Administrative Fees. The fee will be in addition to the disposal f separate from Special Handling FeedSurcharges, if applicable. A. NON-HAZARI)OUS/SPECIAL WASTE MANLFEST .............. S 50.00/m: hads of special wastes that require special waste manifests or appointments (i.e., certifie infectious wastes and certified contaminated soil acceptable for disposal, etc.). B. STAND-BYFEES .............................................. S50.01 6. Loads requiring County personnel to oversee disposal operations, as determined County of San Diego, for safety, health, and/or operational reasons: minimum CI hour. Vehicles found transporting unacceptable materials to the landfill and required to on-site for regulatory agency resolution: minimum charge 1 hour. 7. - -- 0 - I)- - - - - Fee Schedule Page 14 June 24, 19s c. WHITEGOODS: commercial disposal of White Goods is not authorized. Residents may dispose of White only at those lanWs operating an on-site recycling facility. In addition to the disposal Administrative F~G will be charged for each White Good item. All refrigerator doors r removed by the customer. Landfills ................................................ S 20.C 8. 9. Rural Container Stations ................................... S 5.00 f S 20.00 for each add D. FEE FOR MTSREPRESENTATION OF WASTE ORIGlX: TO comply with State mandata, all Solid Waste Facrlity customers shall provide inf'ormatkx request, on the source of the waste being hauled to a County facility. The information ir: the source city of the waste that is being hauled and the trash route for trash industry vc Landfill or bin site access may be denied to facility customers that rehse to comply M County's requirement to obtain source of waste information. E the waste hauler or customer misrepresents the on_& of the waste, an administrative be assessed. For each of the first three offenses, the fee vdl be ten (10) times the tipp assessed that vehicle, not to excd S1,OOO. After the first thee oEenses, the fee w4l be S for each subsequent ofFense. - * E. fiWATORYRECYCLING: A table containing Administrative Fees and the implementation schedule for the Mar Recycling Ordinance may be found in Section V. of this Fee Schedule. F. UNCOVERED LOADS: ................................... S 10.00 pert Charges will be assessed for those vehicles entering County of San Diego Solid Waste FL with uncovered or partially covered loads. The fees will be used to offset the costs oftar other litter control activities. Any customer assessed this fee shall receive tarps at the disposal site (if available) and shal the tarps to completely cover the load as defined in Section 23 1 15 of the California Vehicl before proceeding to the appropriate unloading area. In the event that the load or the ve too large for the provided tarp to cover, additional fees shall be assessed and addition; provided to ensure that no littering oms within the disposal facility. * Nets or other suitable cover materials may be issued in lieu of tarps - - - e e- - Fee Schedule Page 15 June 24, 195 G. TIREFZES: Lanag of waste tires is prohibited unless tires are reduced in volume by shredding o methods approved by the California Integrated Waste Management Board. Whole tires are not accepted at the Ramona, Borrego, or Sycamore landfill, or any I operated Rural Container Station Whole tires for recycling are accepted only at the Otay I Homogenous loads of tires will be charged by the ton. 1. Standard car and truck tires S 3.00/tire or up to and including 16.5" inside S3 00.0 O/t on tire diameter Inside tire diameter 17"- 24.5" (highway/cargo type tires) Mixed load of car & truck tires with highway/cargo type tires S 9.00ftire or S3 0 0.0 O/t o n S 7.00ftire or S3 0 O.OO/ton 2. 3. 4. Inside tire diameter > 24.5" S200.00/tire or (industriaVconstructiodoE road) S100.00/ton 5. VOLUME REDUCED TIRE FEES; a. Passenger vehicles, pickup trucks, and towins vehicle and srnd combinations, whose loaded weight is @eater thvl6ooo pounds, and is cor approved by the California Integrated Waste Management Board, will be I at County landfills for S16/TON. All other vehicles w4l be charged the standard disposal fee. - of 100% tires that have been reduced in volume by shredding or other n b. H. HAZARDOUSWASTE Customers who dispose of hazardous or other unacceptable waste shall upon notifica required to retrieve the waste, if appropriate, within 48 hours and manse for subsequent disposal. In addition, an Administrative Fee will be charged: The Administrative Fees below pertain to incidents occurring within a single calendar ye First occurrence ..................................................... I Secondoccurrence ................................................... 9 Additional occurrences ............................................... q 4 - - - - 0 0 -. - Fee Scfiedule Page 16 June 24, 19! If, for any reason, the waste cannot be released to the customer, or the customer dc voluntarily remove the waste, proper disposal of the waste will be arranged. In additiol ahve fees, wstomers shall be subject to the payment of 100% of all costs incurred by the for labor, supplies, packapg, transportation, and disposal of the waste. Payment of the fees specified in this section shall not prohibit the referral of case appropriate agency for possible civil and/or criminal actions. - L LATE UNLOADING Vehicles unloading on the Solid Waste Facility in excess of 30 minutes after the posted times will be charged the Administrative Fee of $50.00 per hour with a minimum 1 (on charge. rv. PAMMENT OF FEES Section 68.515 of the San Diego County Code of Regulatory Ordinances sets the County's d payment account policy, as well as a cash payment system. At the discretion of the Director, p or business checks, point of sale transactions (automated account debit transactions) and credit ca also be accepted at the landiill for payment of fees. To ensure the County's receipt of funds, the 1 may implement a check guarantee system at the landfills as well as a pint of de and credit card The method of payment for fees accepted at the rural container stations will be cash only. - The Director, at hidher discretion, may waive the liquidated damages assessed for late paym governmental agencies and in cases of the County's administrative error. A. DEFERRED PAYMENTS: Any person desiig to establish a deferred payment account for use at County Solid Facilities will be able to do so upon it being established, to the satisfaction of the Direct such applicant's credit rafing is Satisfictory and that sufficient security is posted. The requ to post a security is waived for local, state and federal governmental agencies as well a utilities. The Director has determined that the "dcient security" requirement referred to in this : may be met by posting a security whose value is at least three times the average monthly f of the deferred payment account customer, as determined by County personnel. Deferred payment accounts shall be invoiced monthly and are due and payable upon re$ statement. Payments not received prior to the next statement date which is the first day c month, will be considered delinquent. - -- - - - 0 - 0 - Fee Schedule Page 17 June 24, 195 - B. DELINQUENCY AND RELATED CHARGES: Monthly late charge for delinquent Deferred Payment accounts will be equal to $50.00 p per month of the principal unpaid balance as liquidated damages. Ea County Solid Waste Facility customer is delinquent in payments for any reason, the 1 may require that cuStorner to pay cash far subsequent transactions. Enecessary, at the dis of the Director, a customer who is delinquent in payments for any reason may be denied to the County landfills or bin sites. Examples of delinquent accounts include: 1. 2. 3. 4. deferred payment accounts not paid in full prior to the next statement date, whic fkst day of every month; checks that are returned unpaid for any reason; nondefened billing customers whose suspended transactions are not paid in full w days of the transaction date; mandatory recycling ordinance administrative fee surcharges not paid in full wj days. C. PROCESSING FEES: 1. Processing fee for checks .................................... S 25.0 Pro accepted in payment at any Solid Waste Facility which are returned by the bank unpaid for any reason. Processing fee for uncollected ................................ S 25.1 suspended transactions which have tran not been paid in full within 30 days after the transaction date. This fee applies to non-deferred billing customers. Processing for duplicating .................................... $ 5.( - 2. 3. ticket or dol v. plA NDATOR Y RECYCLING IN EFFECT AT COUN TY DISPOSAL FACKmS Mandatory recycling shall be in effect at all County disposal facilities. The disposal of de: recyclable materials from residential, commercial, and industrial sources is prohibited. A recyclir ;S available from the fee collectors. < - -- - - -e - e- - Fee Schedule Page 18 June 24, 19' A. CITIZEN HAULED WASTES Citizens hauling their own ref%= in cars, vans and pick-up trucks are prohibited from di: of designated residential recyclable items and yard waste with refuse. At aU disposal f: collection bins are available for designated recyclable items and drop-off locations are PI for yard waste. Citizens hauhg their own re& to County disposal facilities who fail to p separate and deposit their recyclable materials in accordance with the Solid Waste Ordim the rules and regulations of the receiving facility, will be subject to a $15 administrative B. COMMERCIAL HAULERS Commercial haulers disposing of waste at County landills are prohibited from dispc designated residential, commercial, and industrial recyclable items. C. COLLECTION AND SEPARATION REQUIREMENTS Waste haulers operating in the unincorporated areas of the county are required to provi customers with containers and collection service for designated recyclable items, in accc with the regional implementation schedule. Waste generators are responsible for sei designated recyclable items from refkse prior to refuse colleaion. D. DESIGNATED RECYCLABLE MATERIALS - 1. STnENTT-41 I w,cycLw m,MS; Aluminum, glass bottles and jars, newspaper, plastic beverage bottles, tin and t cans, White Goods, and yard wastes. 2. COMMERCIAL RECYCLAl3LE ITEMS; a. From office buildings of more than 20,000 quare feet used for corn governmental, or educational purposes: aluminum, cormgated car newspaper, and office paper. From hospitality facilities which includes all restaurants and taverns, and ho motels with eating and drinking establishments: aluminum, corrugated car glass jars and bottles, plastic beverage bottIes, tin and bi-metal cans, an goods. b. 3. JNDUSTRIAL RECYCLABLE ITEMS; Industrial loads consisting of Wh or more of any one of the following materials: concrete, dirt, land clearing brush, sand, or rock. -- - - .- - m - Fee Schedule Page 19 June 24, 195 E. MANDATORY RECYCLING IMPLEMENTATION Esposal of designated recyclables is prohibited. In the event that citizens or commercid mix designated recydables with solid waste for disposal, the following administrat surcharges may be imposed in accordance with County Code. Citizen hauled: $15.00 Admin. Fee Commercial haulers: $100.00 Admin. Fee m. - A. COUNTY CODE Ab3 CALXFORNUA VEHlCLE CODE Section 68.505, Chapter 5 of the County Code and Sections 23 114 and 23 115 of the Ca Vehicle Code are incorporated by this reference. B. OFFENSIVE LKKGUAGE OR BEKAWOR Any person using obscene, offensive or threatening Ianguase or behavior toward dispo personnel in the performance of their duties may be denied entrance to or use of a Solid Facility for a period of time as determined by the Site Manaser. w. DEFINITIONS A, CLEANFILL: Clean earthen fill material quaMymg for use as cover soil must consist ody of soil andor r less than 6" in any dimension. I€ accepted, clean iill disposal exemptions require from on five (5) days pre-approval by the Solid Waste Office depending on the quantity and I materials to be delivered. Soil analysis may be requested of the owner or transporter determine the appropriateness of the soil for use as cover material. B. CLEANGREEN: Any load containing "green" materials only. Greens include all leaves, grass clippings, shr brush, tree trunks, limbs, and branches that are appropriate for mulching and composting cactus and some succulents are not suitable for mulching. _- -- - 0 -- -- -0 - Fee Schedule Page 20 June 24, 195 C. CLEAN WOOD WASTE: Any load containing wood waste only. Wood waste indudes lumber, pallets, wood blocks, f ad shavings, that are appropnae for mulching and cumposting Wood waste excludes ire painted wood and shingles. D. DEMOLITION MATERIAL (Rural Container Stations Only): Any load con. 26% or more heavy, bulky, dense, non-compressible or Siar materi: be classified as demolition waste. This includes but is not limited to: concrete, masonry, I all land clearing materials, cobblestone, metal, plumbing fixtures and pipe, electrical f materials used in the construction or razing of structures (including fences, patios, storage or decking), gravel, sand, clay products. E. VEEIICLE DEFINITIONS: The final determination of fees for all vehicles will be made by the fee collector at the d facility when visually inspecting the load. Any vehicle, or combination of vehicles, whose weight exceeds 6,000 pounds for General Xehse and 5,000 pounds for Clem Green matei be charged by weight. Vehicles weiz&in,o less will be assessed the set rate by vehicle catei 1. PASSENGER VEHICLE. (include but are not limited to): Passenger Car, Wagon, Utility Vehicle or bfkhan. Loads must be entirely contained with the or the vehicle will be charged the set rate for a Pickup. PICK-UP TRUCK: (include but are not limited to): Standard bed pickup truck size van. SWILL TRAILER; A trailer measuring AO more than 8' long X 5' wide X 3' hig MODIFIED PICKUP TRUCK/ 0 VERSZZED TOAD; A pickup truck that h altered or modified in any way that increases the load carrying capacity of the 7 including, but not limited to: sideboards, tool boxes, lumber racks, camper shell? makeup of the load itself. MODEIED TRAILER/ OVERSIZED LOAD; Any trailer with a bed measurer load larger than 8' long X 5' wide X 3' high. - 2. 3. 4. 5. 6. AGER 'S DISCRETION : In the event that any vehicle or trailer does not cc with the description or intent of vehicles qu-g for set rate fees, the Site Mana designee, has the authority to charge that vehicle by weight. - -4 - .+ - e- - Fee Schedulepage 21 June 24, 19 7. TRANS FER TRUCK; A vehicle used to perform a re-haul function by haulir volumes of refhe that has been transferred to the vehicle from muItipIe collection T for economic hauling. To quw for the Tra.ns€er Truck rates established herein, the vehicle must c( minimum of 15 tons of refuse, and employ a mechanical unloading system. Transfer Trucks must be permitted and carry a current, unrevoked decal issuec Director. In general, roll-off transporters or roll-off transporters with tandem trailers included in this defition. Such vehicles used for transport of waste processed th permitted transfer station may be decaled as a transfer truck at the discretioi Director. F. WHITEGOODS: Any of the following household appliances: dish washers, stoves, refigerators, freezers, washers, dryers, and hot water heaters. m. COLLECTQR Ah% TRANSPORT PEWm FEES The following fees are established for Collector Permits and Transponer Permits. A. COLLECTOR PERMIT FEES - Fed 1. NEW PERMITS (Class "A" or Class "B") Initial Filing Fee ................................................ Collector Permit Area Fee (each permit area) .......................... Decal Fee (each truck) .......................................... RENEWAL PERMITS (Class "A" or Class "B") 2. FilingFee .................................................... Collector Permit Fee (each permit area) .............................. Decal Fee (each truck) .......................................... B. TRANSPORTER PERMIT FEES Feei 1. NEWPERMITS FilingFee ................................................... Transporter Permit Fee .......................................... Decal Fee (each truck) ................................... : ...... - e eL - *, Fee Schedule Page 22 June 24; 195 2. W,WAT, PERmS .................................................... FilingFee 4 u Transporter Pennit Fee ................................... , , , , , , 8 Dech Fee (each truck) .......................................... $ i C. MANDATORY DECALING: To facilitate the charge-by-weight system and customer processing at County land€ilis, all c boxes and all commercial vehicles and trailers normally charged by weight, shall be decal may be retared at the discretion of the Director. The Director may at Mer discretion, waive the requirements for decaiing for those haule frequent the County landfills four or fewer times a calendar year. The Director may at hidher discretion, re& entry to haulers who do not comply with the d proyam. Lx, SWNCE rnQum33;KENTS Every permittee shall maintain and keep in force the following insurarice coverages and limits: COVERAGE LMTS Worker's Compensation Statutory - - General Liability 1. S 500,000 bodily injury per person 2. 3. $1,000,000 bodily injury per occurrence S 250,000 property damage or in lieu of 1, 2, 3 combined singe limit bodily injury and property ( coverage of $1,000,000. Each policy of insurance shall contain the following clauses: A. "Certificate Holder (County of San Diego) shall be named Additional Insured solely as r operations performed by or on behalf of the Named Insured". "It is agreed that these policies shall not be canceled, altered or coverage reduced until thi days after the Certificate Holder shall have rkeived written notice of such cancellation, ali or reduction. The notice shall be deemed effective on the date delivered to said Certificate 1 as evidenced by properly validated return receipt." B. - 0- -- -m - . II ;' - Fee Schedule Page 23 - June 24, IS * ., BE IT FUR"EER~~sOL~ that th;s Resolution rephces that certain Resolution adopted by th of Supervisors, and amended last on which last said Resolution is hereby res( BE IT FllRTHER RESOLVED that this Resolution shall take effect on PASSED AND ADOPTED by the Board of Supervisors of the County of San Diego, State of C: this 24th day of Ju-e by the following vote: 4/29/97 3- 6/24/97 mS: Cox, Jacob, Slater, Roberts, Horn (STATE OF CALIFORNIA) (COUNTY OF SAN DIEGO) I, Thomas Pastuszka, Clerk of the Board of Supervisors of the County of San Dieso, State of Cz hereby certify that I have compared the foregoing copy with the ori_&ul ResoIution passed and by said Board, at a regular meeting thereof, at the tie and by the vote therein stated, which Resolution is now on file in my office; that the Same contains a full, true and correct transcript th and of the whoIe thereof Witness my hand and the seal of said Board of Supervisors this ~CL:~ day of .Ti?nP Thomas J. Pastuszka Clerk of the Board of Supervisors By vk2&!&. ' 4- - Deputy brzion 3a-T ' ...,,-.>-::;4.: :E:. -::? . ' ..a,,; rT ?% n %.. .-: .pT;.,.:. &! \ :?:. ::. 6/24/97 (77) i& ; " .x. ..C'S%.!.- L---. .q! +e - -d .~ *. . ? e- e.. - - -~ ES~IT "C" TO SETTLEhIENT AGREE~IENT .- PROJECT EhXQ'CEhIEKT'S The fo!iowing projjec; ?.'lhP;ICem2.2:Ij 2-2 included in the projsci descrip;ioz 2nd zre to b &nded by the County Solid JI'SSI~ Di~sioii .. 21.~0 cos1 to Coaj:, Ca;ljbnd, or couny -&rporLs: ("Czrlsbad"), at no COST XZ 'C i:=t of 21: !;ens s~d ?>::umbrai;cej: FE:E?~~ avenue 21onS the proj5,c si:? from i;?e ~v'e~ierfi edg? ofihe COECL:. o~.:.TJrj>ip agd e~:ep.a:?g .. ?=: the vy.2y io thz e:jr e~cz ;hi2 Cot!nr? OL~T~IS~;~). Th> IOD shzli Lt ccr 23 ~d roo? Righi ofjiiEy c i~~~~~~~~ slope 2nd erzir e?sernen:j. X.l:o inprovexen;: sk!! be i29cictC hrn the Cotiny - cr.its: ;he couriry snjx;rj p~e Fi~ed?y jb.211 COXIPIY Wlil?. '* LL? * Ciry'S C!2.S;?2 SZnd2rds for 2 jeco;;<p?; 2X2:jnl. The IOD jhz!! t;, 1: is r=cas:iz,od e?.? 2z-tt~ 7, i2p.p~ 2 -2:sr::: pari ~fihe ssT=tT.tT.; tc? e3;.p2ys -2!LLLb -r, L:;is Rig51 VI,'.\, - v.L.;-> vL:.LI. IS ' OV~T~~ by CCK:.;~. .&:ZSZS. ::.?I .. 1x2 o:i?tr ropz ix.-c:..,,t:;s StC cGI jt!07bi. v..Lii :~ ?.E.: !zjTF-!i?< TO CZ~ s~<::?r!; ~.r C,::::::; .~.~::czs prog=;;i. 2: 7.:: cz-; ;a coax?.. -~i~~~~~, 2.1 have revitl.ve5 +;e relErive vnizts 0: -. r~st i~7rs:ie~~enis 3p.d co?,;,j:j;r;s snd e.cri=e :kiE; :kc OvtT: d 1. Faizdav D~~~cPI~oc. The Councy ~h2!1 EE~? EZ Iirel;.ccnb!z OESY to Dedicere 10 1~2 Ciq of ~2rlsjae - ,. 17. io dtve!oj: these propmits 2Z.2 Ifi? iZFiC\.tZ??:s Ere no1 ?!F??s;; IF. :iec=. Dejign ~nd ~li~n~,;= ormred IO CailSb2d no kt?: ih2 ihr?? (3) T!:O;IhS 2%r the &re c~on which the CiF suPp!iej rk ..__ the I!ic.n:e.n: 52: jhe ~ara<e;~ R~~< esrer,s - I CoLInty \%/i:h ihe ntcesszm ersin?er!ng .* ~p:: s?.~vi~nn I. - - I 2- .. .,. . ., -- - . . 7. -. :-;.c~c . - .. . ,C.. .. . I. , .. . fnrly In :.zmon, Czri jb,?d !,:;ili ;t.;.ie.l:; a:,: c-:j:",t: 12 500s :c.,:., :--. r-,- I .__- A I7~~~'S :;opt-+. +? c7-2 55 SsF;;C?Z z-: .'z'-T;.:E:,.Ej +dic2z?e ,,-;-- -1;- .I.- _I L.. . -_ L*i:LdLl@?: fC d?T;.?!c\o c.2: L..LZ. ;...1 -Asr25.?.2.2:. ?;?e CY: ..*-. ~ ._ - _I. - - b?ne:l:~s c iccning io COU~> .ALi::c\~s ij 2(:':i:;tit~;: io or Ere?:?: y-27 7-=. .:.I.. .:.- v:.lue ofi'ze IOD rqll:: by 1nlS ,' Ag.tene2;. - ,. 3 - 1 he CoEflq; Si?z!i r:.k? 27: ~~~~\~0c;~~~ *, Ober -,. 10 D=r.r---. - -. L.-!L~.u cpproxin:._r=!>r 2!00 fzE length, ai RO COST 2nd fie? ofE!i liens 2~2 27;ci!g;lbr;.nces, in fzvor of cgrljb2d for 2 4s fooi ~i~3. LYay coverin2 [he public esexn'_/2ccesS ix? ihn; jen;ej the Trzcjf?: s;zrion. 9 -1 -1 1 ne County jhn]!. if rqca--=.: -1~- C) CEi!Sb?.d, enter k;;o s j;E.ndpd public v;orks 3. contrxt wiih Czr1Sbad to ~-Cq!Lirt ZI~ nec?sjq Risht of LVey, 2nd S?~Z!! impro\re, or cause to b? improved 2nd p")' for, modificsrtons to the in;t:j=c;ion ofF?.r&y a~cl, E1 Camin0 R~~! to provi, two lei5 turn lanes out ofF'are.&y O~KI E1 Cmino RtsI, one through lnne, and one ri,oht tym isn wiih i! mediddivider, 211 25 shovy?I on the amc'ned plan. 4. The County ShEll enier inro 2 sxndard public works conir2ct with CarIsb2-J to instal!, or caused to be ins:z!Ied 2nd p2id for, i! deceleration .. lane EPpiosimately 300 fzet in 1enT improved to prime arterial siead~rds on El Cmino Real 2s set fozh on rhe attzched shest. .. 5 The County shz!l, X its OpiiOn, eiih,?r enter into 2 s$n&;d sublic ,. woiks contract wit& CarIsbad or make a~~fiQ=~~~iS 10 do the work itself, or to hzvt CoF-ji do the work, to impr - the interior access road to fori); (4.0) feet of pavemmt, industrial sections, with a/~ berms. The qu\p!^$ c- I ~ . L : =: !pkcl - p. *. I .- 1 - F.TL~MS:CrrC.~CO.~~~~S'~~~E~~f iiC.JLX.3 I!, - .. - - -- o ~-~ - e- .. . -. .. ,. - .. .. (. i 1. .I p?-c!zj jn.11 coop<2rrie in ?.~~!YZ:TI~ th? CO2:2!TiOn Oftht ex!jting FZVCT.?~~ ~nc ucins bzse E?,< svbbaz?) on sit?,, znd, bzje? O; jouF.6 ~ng;~.etr;n~ practice, those ~OK;~OCS of ii.le ps!s~jng ECC=S~ V>..,y I~S; 2:t ip. sood ~0n~::icn ZIC I~.TIIC~ CP~ r=z.soi..?-'ol>; bt e~2scied ic sep,jce ;ks lire 0; tn!s projecr, sh.11 be widened: 2~6 XIY zre2j Of The ?s!sm$ xccss \Y?-T; ihn~ 2:s not in good cop,dirio: s;7sll be rezoved 2nd replx23 2j need26 50 1h2~ th? end resu!i \vi11 k.3 2 good qc~iiiy, 40 fooi pz 2nd berme: indusIiiz! sizfiGz:ds ZCC~S~ \vSy L:;T.ICE cx serv-e the r=Zjsn.'r;\e lift ofrhis projtci 2; least cosi to the Counry. c c c ,. t. . , ,f. .. ?' 1 .. 6. The COLI^;:^^ shzll, foi 2 KI:~ICQT. of60 d2ys providt j:tc?lemsntai si~~or G+ii conrracc c.orkers to (I) be 07: sire durinc; u vi'2tkz.Ci~ io fzciliis;e s?!fhn.l uszrs, 2njlv2r quesT;ons: Fedorn re!E~ed ps~s du:ii.:g i:i.eekend jt!fk:G! hoiLrs to ensure +L-- --I- . -. r, 3 . .. 2nd L!ndec;zke comrnuniry rs!z<ions aciii'::!t~ 10 ensure tha1 ss!r p,z:; qtpriofis 2;e condecr2.j szfely, c!e?r,iy, and e%citn:iv; (1) to pick L? L!??:, airec: ti?-:iIC, ~~rr~i ~zd police th? Erec, ErL2 .. .. - L!!&: ><:: r?Xl oper?.:io?s z:? 1 r- , conduct5d safely, ciemly, E?.C ?ZiC!CXC!y; ZZ.2 (?) 03 en "?.j p.ce<?i'' E.,? "2s r?qp=sr?d" b!; C2.r-s .. .- .,. b2jij 2:jisi ~n the C~~ZEE? CT !;!S~ZI ~LLT~Y~~C .- 2s ?. rtsulr ofo~e:~iio~s 2: p2!ori?~ 2nd the C',ojir.s .. ,.. y tiit S7-n &Clz:cos IandfiIl. This I~.CIILCI~S t~i? CT~T:~< cle~n~ip ofa~y i!!?~:! - ~~lmpi~g 2nd renoi2i c IiTTtr to egjure th.1 CZT!:~:? eoej ROC e~?~ris~c? s j!oniiic:~:: & ir.c:?y? in !!cTer or il!egZ! GET~~~: .. . .- &j i- resuli ofthis projeci. - " ,. I. .A.S ~00~. ~2 r;c,:zi5j' :-52: i:7t 2x5: gp. ot [.".IS iqgr2--:F.: (-0s.; %>;FJ! Di=Sen, I>5 cc: - .. , I". i.\-i;h reC?$ij ,.s:d :?coi~s i;: ~-;Lo\'cs~.":I~ Z:!? $,t sc~!?~ ?-Ted i5j~It; ~>,-~i~i~~ V;T!lc-. ccS_.r gyi: fCr prior LO c9.5 ~;~~L~p~~ of-'..;- L:::' . Lr-aava-7 .*.--...L... L,*- i'.-. i- ::. ---.-. .:.::.-:2?.::@3 0: y!? ::g:.::.z .T=':t3: ?&arc; !?. q-=??F---,- ' ?. .. ^, . . . . .. .. . - -. u-L.L.LL.: .. -- r 1 ., 1- -. -- L. s;2,;, rcy,S 7;. --.. ---- -.. -.-.- c7372:> -k2 rc<-;1--. 27 j~~~,~~:~qaia-~ *,~*lI4b41:, or C!SgtxS 2.Y LC ~-. L;I; LL:: ..... =..L:..z \k:x 1 A: !SST. r=r-,q;c c' FZ-:!-- If i 7.5 CoV:!:,' S.-?-:! ~:o--.::,.. L..i .. .~ --,I.* e...- A -b.iI:b 7.. 'I r~!~;D~rs~ CO~~I for th? s:.~.? j: & zqt: - r;-<.-,- -kc:. --- t:.z CC~K~ disgcrs_; E-.:: !:?z for v\.~:;?. CO:~; re:::=: :?z??.t?l; >y cQ:.s:, rI.5 y-&5 SiiZil TT.25: :-+ CzX:! r- rood f~ir? iz F-.. e:ro.;r 10 c?:...? ~;:?tr.?r,; c:: :).: r.2~5:. 11 cofifsr, then rht Cir). of CzrIsk2-f si?.!!. . ~i 71- ...- -- ~:S...ZL. ..--- 01 ?:in - - ; F-7, OQlSICt. i-,?ErT;j plT). *I 1. 7 I ,. . kr,ow[edg&le in he subjecr ZZ:?~ V;:C SF:::: ~t~i.52 (p.2 ~2~5r ZY,~ i';:~:2 c.ec;sioz ~hg!] b? fin:! z- binding. In rhe exr.: +::I ihe io~i ECF.::! ccjc io tht Count , b.;?< 0" pI?-qs ?-?;e sp~c[pc~;~cr:~ .r . S. ?-?proved by the PETiitj, for ih~ iKprovmsx Aize fcr by p:r:grep?:s 7.. j,~, ~._..d j above, sh3.1 tor?-: '1 '1 m.ore thm SjOO,OOO, the p:~-ri?s sna!l ~2t: LF:~ COZ~Z: in good fzi~'g ic cc~s;~~; rzdgji=q options to reduce thz tod cosi to the Coc:ry be!ow S500,OOG. .. .. . .. .. -3 - l-n I . ., ,<<, ' .- - F TL~~n\CTiC.~~COXS~.~S~~~C~~~~~C X.CG.3 i9 2 .- _- --