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HomeMy WebLinkAbout1997-10-28; City Council; 14409; APPROVAL OF AND AUTHORIZATION TO EXECUTE SOLID WASTE SERVICES AGREEMENT WITH COAST WASTE MANAGEMENT, INC.QI 3 c &. 2 .. z 0 F a 0 s 2 3 0 0 53 J:; * i $d * d bI I r LnnLaonu - nuriuu ILL AB#- TITLE: APPROVAL OF AND AUTHORIZ~~ION TO DEPT, MTG. IO128197 EXECUTE SOLID WASTE SERVICES AGREEMENT CITY 1 DEPT. CSD WITH COAST WASTE MANAGEMENT, INC. CITY I RECOMMENDED ACTION: Adopt Resolution No. Carlsbad and Coast Waste Management and authorizing its execution. qq-@ approving the Solid Waste Services Agreement between th ITEM EXPLANATION The current Refuse and Recyclables Collection Contract between the City of Carlsbad ai Waste Management was approved and executed in August 1991. The term of the cont expire annually on February 28 upon written notice of either party. The City Manager notice of termination to Coast Waste Management with the intent to renegotiate the terr agreement. Coast Waste has continued operation under a series of short-term contract e: until a successor agreement can be executed. The City and Coast Waste have enjoyed a good working relationship for many years, i informally resolved any issues which have arisen during the course of the contract. Hc was determined to be in the best interest of both parties to more clearly define the terms 01 The proposed document before you has been completely revised. Staff reviewed t boilerplate agreements and the existing agreement, and incorporated relevant sections frc documents. Staff also included standard language used in the solid waste field, and up( document to reflect current conditions. Staff also met with Coast Waste Management I addressed their concerns. Service provided under the agreement has not changed, and the customers will not experi changes as a result of the execution of this Agreement. This Agreement serves to foi number of informal arrangements, Le. Christmas tree recycling and franchise fee methodologies, etc. Also, the proposed agreement is a more comprehensive docume addresses rarely occurring conditions, i.e. events of default and hazardous waste indemi This agreement may expire annually on June 30, upon at least six months written notice party. Rates will continue to be established via City Council resolution. FISCAL IMPACT None. EXHIBITS 1. Resolution No. 97- dfb 1 f I 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 lP k) RESOLUTION NO. 97-655 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING THE SOLID WASTE - SERVICES AGREEMENT AND AUTHORKING ITS €X€CUTIOW WHEREAS, The City of Carisbad is responsible to provide for the safe coil transport, and disposal of solid waste, including designated recyclables, to ensure the health and general welfare of the community; and WHEREAS, The City of Carlsbad may contract for said services; and WHEREAS, The City of Carisbad has contracted with Coast Waste Management provision of said services within the City; and WHEREAS, Coast Waste Management can continue to provide said services; NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Carlsl follows: 1. The above recitations are true and correct. 2. The Solid Waste Services Agreement between the City of Carisbad and Waste Management attached hereto is hereby approved. 3. The Mayor is authorized to execute said Agreement on behalf of the City. PASSED, APPROVED AND ADOPTED by the City Council of the City of Carisba regular meeting held on the 28th day of October , 1997, by the following vote, tr AYES: Council Members Lewis, Finnila, Nygaard, Kulchin, and Hall NOES: None ABSENT: None ATTEST: (SEAL) 5 0 m a SOLID WASTE SERVICES AGREEMENT This Agreement is made and entered into this e day of lk, 1997, by an between the City of Carlsbad, a municipal corporation, hereinaft r referred to as Tity’’ an Coast Waste Manay ement, Inc., hereinafter referred to as “Contractor“. RECITALS WHEREAS, the Legislature of the State of California, by enactment of the Californ Integrated Waste Management Act of 1989, Division 30 of the California Public Resoura Code, commencing with Section 40000, declared that it is within the public interest to authorii and require local agencies to make adequate provisions for solid waste handling within thc jurisdictions; and WHEREAS, City has the authority to enter into an exclusive franchise or contract f such solid waste handling services through California Public Resources Code 40059 (a)(l); ar WHEREAS, City Council of the City of Carlsbad, having determined that Contractor, I demonstrated experience, reputation and capacity, is qualified to provide for the collection solid waste and recyclables within the corporate limits of the City of Carlsbad and tl transportation of such solid waste and recyclabies to solid waste facilities for processin disposal and/or recycling, desires that Contractor be engaged to perform such services on tl basis set forth in this Agreement. WHEREAS, City and Contractor agree that this Agreement supersedes and rescinds ti NOW, THEREFORE, in consideration of these recitals and the mutual covenar Refuse and Recyclables Collection Services Contract dated August 9, 1991. contained herein, City and Contractor agree as follows: SECTION 1. DEFINITIONS The definitions contained in Public Resources Code Section 40000 and Carlsb Municipal Code Section 6.08.010 shall apply to this Agreement, unless it is obvious from t context that another meaning is intended. Unless othetwise specified, “Solid Waste” st- include “Designated Recyclable Materials”. SECTION 2. 2.1 CorDorate Status - Contractor is a corporation duly organized, validly existing and good standing under the laws of the State of California. It is qualified to transact business in 1 State of California and has the corporate power to own its properties and to carry on business as now owned and operated and as required by this Agreement. 2.2 Corporate Authorization - Contractor has the authority to enter into and perform obligations under this Agreement. The Board of Directors of Contractor (or the shareholder necessary) have taken all actions required by law, its articles of incorporation, its bylaws REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR 4 0 otherwise to authorize the execution of this Agreement. The persons signing this Agreement or behalf of Contractor have authority to do so. 2.3 Other Permits and Licenses - Contractor warrants that it has all applicable state regional, and federal permits and licenses to perform its services under this Agreemenl including, but not limited to, local land use approvals, County of San Diego collector permits and truck operating permits. 2.4 Covenants Auainst Continuent Fees - Contractor warrants that their firm has nc employed or retained any company or person, other than a bona fide employee working fc Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed tl pay any company or person, other than a bona fide employee, any fee, commissior percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from the award or making of this agreement. For breach or violation of this warranty, City shall haw the right to annul this Agreement without liability, or, in its discretion, to deduct from tht agreement price or consideration, or otherwise recover, the full amount of such fee commission, percentage, brokerage fees, gift, or contingent fee. SECTION 3. TERM 3.1 June 30, 1998 unless extended by the City pursuant to Section 3.3. 3.2 Conditions to Effectiveness of Aareement - The obligation of City to permit thi Agreement to become effective and to perform its undertakings provided for in this Agreemer is subject to the satisfaction of each and all of the conditions set forth below, each of which ma be waived in whole or in part by City. Contractor in Article 2 of this Agreement are true and correct on and as of the effective date. Absence of Litigation. There is no litigation pending on the effective date in an court challenging the award or execution of this Agreement or seeking to restrain or enjoin it! performance. 3.3 Option to Extend - This Agreement shall automatically extend by one year increment: subject to the right of either party to terminate the Agreement for any reason on each June 31 upon written notice by or before the January 1 preceding the termination. SECTION 4. EXCLUSIVITY OF AGREEMENT 4.1 Exclusivitv - So long as this entire Agreement is in full force and effect, City shall nc enter into any agreement with any other agent for the purpose of performance of any c Contractor's obligations herein, unless City or Contractor has issued notice of termination. Term - The term of this Agreement shall commence upon execution and continue unt A. Accuracy of Representations. The representations and warranties made b B. 2 w w SECTION 5. WASTE COLLECTION SERVICES 5.1 General - The work to be done by Contractor pursuant to this Agreement shall includ the furnishing of all labor, supervision, equipment, materials, supplies, and all other item necessary to perform the services required. Contractor shall perform its work in a thorough an professional manner so that the residents and businesses within the City are provided reliablf courteous and high quality solid waste and recyclables collection services at all times. 5.2 Continaencv Plan - Contractor shall submit to City within ninety days of the execution ( this Agreement a written contingency plan demonstrating Contractor's arrangements to provid vehicles and personnel and to maintain uninterrupted service during mechanical breakdown: and in case of natural disaster, strikes, or other emergency. 5.3 Residential Solid Waste Collection Services - Contractor shall collect and dispose of i Solid Waste and Designated Recyclables generated at residential premises within the City ar placed for collection once per week. Solid Waste and Designated Recyclables shall t collected on the same day. Contractor shall make special arrangements with customers for tt collection of excess material or Bulky Waste in accordance with the provisions established the Municipal Code. 5.4 Commercial/lndustriaI Solid Waste Collection - Contractor shall collect and dispose all Solid Waste and Designated Recyclables generated at commercial, agricultural, ar industrial premises within the City and placed for collection not less than once per week Contractor shall make special arrangements for the provision of any additional services commercial, agricultural and industrial customers. 5.5 Collection of Citv Solid Waste - Contractor shall collect and dispose of all Solid Was at City facilities as specified by the City Manager or designee at no cost to City. 5.6 Holiday - The following are designated as holidays for the purposes of this Agreemen 0 New Year's Day 0 Memorial Day Independence Day LaborDay ChristmasDay Contractor shall notify all affected customers at least annually of the holiday schedule. 5.7 Additional Collection Services - Contractor shall provide the following additior services: A. 0 Thanksgiving Day Bulky Item Coilection Events. Contractor shall collect and dispose of bul waste from residential customers (one item per customer) one day each quarter appointment, at no charge. Any adjustments to the number of events each year shall 3 x I 0 0 negotiated between Contractor and City. B. Telephone Book Recycling. Contractor shall cooperate with organizations i directed by City for annual telephone book recycling campaigns. Contractor shall provid collect and recycle the contents thereof, temporary containers at locations and collectic intervals as determined by the City Manager or designee, at no charge. C. Christmas Tree Recycling. Contractor shall cooperate with organizations 1 directed by City for annual Christmas tree recycling campaigns. Contractor shall provid collect and recycle the contents thereof, temporary containers at locations and collectic intervals as determined by the City Manager or designee, at no charge. D. Special Events. Contractor shall provide, collect and dispose the conten thereof, temporary containers for City sponsored and conducted special events as determine by the City Manager or designee, at no charge. 5.8 TransRortation/DisDosal of Solid Waste - Contractor shall transport and deliver all Sol Waste collected pursuant to this Agreement to a permitted Solid Waste Facility (i.e. subject the approval of City). Contractor shall maintain accurate records of the quantities of solid was delivered to any and all approved disposal sites, and make available these records to City upc request. 5.9 City's Riaht to Select Solid Waste DisPosal Facility - Except as follows beloi Contractor is responsible for the disposal of Solid Waste collected pursuant to this Agreemenl However, City reserves its right to select disposal facilities to which the Solid Waste collecte pursuant to this Agreement is to be taken for disposal or processing. In the event City wishe to direct the Solid Waste to a particular facility (Selected Facility), it shall notify Contractor i writing. Within twenty days of its receipt of notice from City, Contractor shall complete a revie of the Selected Facility. Promptly upon completion of its review, Contractor shall advise City i writing of its findings, including but not limited to (i) a discussion regarding the environment; integrity of the Selected Facility (based upon its design, construction, operation, and th financial stability of the owner/operator) and (ii) any impacts on the cost of providing service. City shall consider Contractor's findings and determine the Selected Facility. Failure ( Contractor to submit written findings shall not invalidate City's determination. Thereafter, th rates to be paid Contractor pursuant to Section 8 herein shall be adjusted to reflect th increased or decreased cost of using the selected facility. In addition, in the event th environmental integrity of the Selected Facility is less adequate than that of the facility current1 being used by Contractor, Section 9.1.B shall not be applicable to Solid Waste disposed at th Selected Facility. 5.10 Hazardous Waste 4 0 0 A. General. If Contractor determines that waste placed in any container for collection or delivered to any facility of the Contractor is hazardous waste, infectious waste, 01 other waste which may not legally be disposed of at the approved disposal site, or presents E hazard to Contractor's employees, Contractor shall have the right to refuse to accept sucl waste. In such event, the generator will be contacted by Contractor and requested to arrange proper disposal. If the generator cannot be reached immediately, Contractor shall, prior tc leaving the premises, leave a bilingual (Spanish/English) tag at least 3" x 5" which lists thc phone number for the appropriate regulatory agency, indicating the reason for refusing tc collect the waste. If the waste could possibly result in imminent danger to people or property Contractor shall notify emergency personnel using the 911 emergency number as soon a: possible. B. Contingency. If the hazardous waste is delivered to the approved solid wastt facility before its presence is detected and the generator cannot be identified or fails to removc the hazardous waste after being requested to do so, Contractor shall arrange for its prope disposal pursuant to Municipal Code chapters 6.02, 6.03 or otherwise. Contractor shall make i good faith effort to recover the cost of disposal from the generator, and the cost of this effort, a well as the cost of disposal shall be chargeable to the generator. Contractor shall be entitled ti include the costs incurred, but not recovered, under this Section as an operating expense fc purposes of rate review. 5.1 1 Marketina of Recvclable Materials - Contractor shall market the recyclable material collected in accordance with this Agreement, securing the best available prices for th materials. Revenues from the sale of Designated Recyclable Materials shall be included as a offset to operating expenses for purposes of rate review. 5.12 Collection Standards A. Hours of Collection. Contractor shall make collections between 7:OO am an sunset. The City Manager or designee may grant exceptions for commercial and/or industri areas. B. Care of Private Property. Contractor shall exercise due care when handling sol waste containers. Containers shall be returned to the collection point upright with lids in tk proper place. City shall refer complaints about damage to private property to Contractor Contractor shall repair all damage to private property caused by its employees or equipment. Solid waste collection operations shall be conducted as quietly i possible and shall conform to applicable federal, state, county and City noise level regulations. Litter. Contractor shall exercise due care to prevent solid waste from beir spilled or scattered during the collection or transportation process. If any solid waste is spillt C. Noise. D. 5 i 0 0 during collection or transportation, Contractor shall promptly clean up any spilled materials. Each collection vehicle shall carry a broom and shovel at all times. Contractor shall cover al open loaded debris boxes during transport. 5.1 3 Vehicles A. General. Contractor shall provide a fleet of collection vehicles sufficient ir number and capacity to efficiently perform the work required by the Agreement in stric accordance with its terms. Contractor shall have available on collection days sufficient back-ui vehicles for each type of collection vehicle used (i.e. front loader, side loader and roll off> tc respond to complaints and emergencies. Contractor shall furnish City with a written list of a vehicles, and shall update the list annually. The inventory shall list all vehicles by manufacture1 model year, ID number, date of acquisition, type, and capacity. Specifications. All vehicles used by Contractor in providing solid waste collectio services shall comply with all federal, state, and local requirements for such vehicles as the now exist or may be amended to read in the future, and be registered with the Californi Department of Motor Vehicles. All such vehicles shall have watertight bodies designed t prevent leakage, spillage or overflow. Any leaking vehicles shall be taken out of service an repaired promptly. C. Vehicle Identification. Contractor's name, local telephone number, and a uniqu vehicle identification number designed by Contractor for each vehicle shall be prominent1 displayed on all service vehicles, in letters and numbers no less than 2% inches high. Cleaning and Maintenance. Contractor shall maintain all of its equipment use in providing service under this Agreement in a safe, neat, clean and operable condition at i times. Contractor shall inspect each vehicle daily to ensure that all equipment is operatir properly. Vehicles which are not operating properly shall be taken out of service and repaire promptly. Further, Contractor shall perform all scheduled maintenance functions in accordanc with the manufacturer's specifications and schedule. Contractor shall maintain accura B. D. records of all vehicle maintenance and repair, which shall include the datelmileage and natul of repair or maintenance, and shall make such records available to the City upon request. E. Operation. Vehicles shall be operated in compliance with the California Vehic Code, and all applicable safety and local ordinances. Contractor shall not load vehicles excess of the manufacturer's recommendations or limitations imposed by state or IOC restrictions. 5.14 Solid Waste and Recvclable Containers A. Residential. Solid waste containers for single-family residential customers sh be provided by the customer and in accordance with the standards established in Carlsbi 6 - Municipal Code. Recyclable containers shall be provided by Contractor under the approval of the City Manager or designee. Contractor shall repair or replace all containers damaged by collection operations. Non-residential. Contractor shall provide bins and debris boxes for storage of solid waste and recyclables which shall be designed and constructed to be watertight and prevent the leakage of liquids to the most practical extent possible. Contractor shall maintain all containers in a functional condition and so as to present a clean appearance at all times. Contractor shall repair or replace all containers damaged by collection operations. and disposal of City Solid Waste pursuant to Section 5.5, at no cost to City. 5.1 5 Personnel A. B. C. City. Contractor shall provide City with all containers necessary for the collection General. Contractor shall furnish such personnel as may be necessary to Nondiscrimination Clause. Contractor shall comply with the state and federal laws regarding nondiscrimination. C. Immigration Reform and Control Act. Contractor shall be aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that are included in this agreement. Driver Qualifications. All drivers shall be trained and qualified in the operation of waste collection vehicles and must have in effect a valid license, of the appropriate class, issued by the California Department of Motor Vehicles. Safety Training. Contractor shall provide all required operational and safety training for all of its employees who utilize or operate vehicles or equipment for collection of solid waste or who are otherwise directly involved in such collection. Contractor shall train its employees involved in solid waste collection to identify, and not collect hazardous waste or infectious waste. SECTION 6. OTHER SOLID WASTE COLLECTION RELATED SERVICES AND STANDARDS 6.1 Billing - City shall provide billing and collection services for solid waste services for those residential customers who are billed for sewer and/or water services by City. Contractor shall bill and collect from all other customers. City and Contractor shall use their best efforts tc obtain prompt and complete payment of all delinquent accounts by any remedy authorized b) law. Contractor shall print notices on bills or insert information in the bills at City's request. With 30 days written notice, City may elect to have either City or Contractor bill all customers. provide the services required by this Agreement in a safe and efficient manner. B. D. E. 7 a m 6.2 Reoortina Requirements A. General. Contractor shall maintain records required to conduct its operation and to support City in the conduct of City business. Contractor shall maintain such accountin statistical and other records related to its performance under this Agreement as shall t necessary to develop the financial statements and other reports required by this Agreemen Also, Contractor agrees to conduct data collection, information and record keeping, at reporting activities needed to comply with both current and future applicable laws ai regulations and to meet the reasonable and relevant reporting and solid waste progrz management needs of City. To this extent, such requirements set out in this and ott- Sections of this Agreement shall not be considered limiting or necessarily complete. Tt Section is intended only to highlight the general nature of records and reports and is not me: to define exactly what the record and reports are to be and their content. Adequate record security shall be maintained to preserve records from events that G be reasonably anticipated such as fire, theft and earthquake. Electronically maintaint data/records shall be protected and backed up. Contractor agrees to make available ( demand to City and its representatives the records of any and all companies conductii operations addressed in the Agreement, including related parties having financial transactio1 with Contractor. Records shall be maintained in forms and by methods that facilitate flexible use of ds contained in them to structure reports as needed. Contractor may propose report formats tt are responsive to the City’s needs for each report. The format of each report shall be approvl by the City Manager or designee. All reports shall be submitted to: Administrative ServiceslProjects Manager City of Carlsbad 405 Oak Avenue Carlsbad, CA 92008 B. Financial. Financial records shall be maintained and cost and reveni information segregated between: services provided inside the city limits and Contractor’s 0th operations; kind of service; and othewise as needed to meet the requirements of tt Agreement and generally accepted accounting principles. Where the allocation of costs revenues to various categories is required, Contractor shall segregate such costs a revenues. This information shall be audited and certified to by an independent certified pub accounting firm mutually approved by City and Contractor at the same time as the annual au required by the following paragraph. related statement of operations, and such additional financial or statistical data as may Contractor shall submit annual financial statements consisting of a balance she 8 0 0 prescribed by City. All such statements and reports shall be submitted not later than foi months following the end of Contractor‘s annual accounting period. Annual financial statemeni and reports submitted by Contractor shall be audited and certified to by an independent certifie public accounting firm mutually approved by City and Contractor. Contractor will bear tt expense of said audit, but audit fees are allowed as an operating expense for rate revie purposes. C. Solid Waste. Contractor shall maintain records for services provided inside tt city limits, separately from those of Contractor’s other operations, relating to: 0 Customer services and billing. Weight of waste (in tons) disposed, especially as related to reducing ar diverting waste. Information shall be separated by source, i.e. residenti: commercial, and roll-off. 0 Routes. Facilities, equipment and personnel used. 0 Facilities and equipment operations, maintenance and repair. 0 Processing and disposal of solid waste 0 Written complaints 0 Missed pickups Contractor shall maintain records of waste disposal site of all solid waste collectc inside the city limits for all preceding Agreements, to the extent these records exist, and for th duration of this Agreement and all extensions to this Agreement or Successor Agreements. I the event Contractor discontinues providing solid waste handling services to City, Contract( shall provide all records of waste disposal site of all waste collected within the city to City with thirty days of discontinuing service. Records shall be in chronological and organized form ar readily and easily interpreted. Contractor shall submit monthly reports with the quantities of solid waste collected ar disposed by source, i.e. residential, commercial, and roll-off. Monthly reports shall be deliver€ to City no later than the twenty-fifth day of the foliowing month. complaints, average number of customers per month, and average gross receipts per month This information shall be provided for each source, Le. residential, commercial, and roll-off Quarterly reports shall be delivered to City no later than the twenty-fifth day of the moni following the end of the quarter. Recyclables and Yard Waste. Contractor shall maintain records for servicc provided inside the city limits, separately from those of Contractor‘s other operations relating tc Contractor shall submit to City quarterly reports which include: the number and type D. 9 6 Records described in 6.2C above Recycling and yard waste program participation, especially as related determining participation rates and implementing programs to increaz existing recycling and to expand recycling (names, addresses, contac made, etc.) 0 Weight of materials by recycling and yard waste programs. 0 Sales - kind of material, quantity sold (in tons), value per ton, and net sales. Contractor shall submit to City monthly reports with the quantities of recyclables ar yard waste collected, by source, material type, price, and route day. Monthly reports shall t submitted to City not later than the twenty-fifth day of the following month. E. AB 939 Reports. To assist City in its planning to meet the requirements of F 939 (the Integrated Waste Management Act of 1989), Contractor shall record on a daily bas the quantities of solid waste and recyclables collected, by category of customer. Contract available to City for examination the records maintained pursuant to this paragraph as may I necessary to assist City in meeting its obligations under AB 939. 6.3 inspection bv City - The designated representatives of City shall have the right observe and review Contractor operations and enter premises for the purposes of su observation and review at all reasonable hours with reasonable notice. 6.4 PublidCustomer Service and Accessibility also agrees to cooperate with City on waste composition studies. Contractor shall mal A. Office Location. Contractor shall continue to maintain a business office in t city, or other such location as approved by City. 6. Office Hours. Contractor's office shall be open and representatives available the public from 8:OO a.m. to 500 p.m. Monday through Friday. The office may be closed Saturdays, Sundays, and holidays specified in Section 5.6. C. Telephone. Contractor shall maintain a telephone system sufficient to handle 1 volume of calls typically experienced on the busiest days in operation at its office duri business hours. if City determines that a significant number of customers are unable reasonably reach Contractor's office by phone, or are subject to a waiting time "on hold" excess of two minutes, City may require Contractor to install additional telephone lines or I- additional customer service representatives. Contractor shall train customer serv representatives to answer customer inquiries regarding solid waste and recyclables collect services. D. Customer Information. Contractor shall provide informational brochures wh describe each recyclables collection program. City may direct Contractor to develop additio public information materials, which shall be submitted to City for approval prior to printing i 10 e e distribution. customers upon request. Contractor shall be responsible for the prompt ar courteous attention to, and prompt and reasonable resolution of, all customer complaints Contractor shall record in a separate log all complaints, noting the name and address of tt complainant, date and time of complaint, nature of complaint, and nature and date of resolutio This record of complaints shall be retained by Contractor for the term of this Agreement. addition, Contractor shall compile a summary statistical table of the complaint log, satisfactc to City, and submit the table to City each quarter. Contractor shall respond to all complair Information materials shall be distributed to all new customers, and existir E. Customer Complaints. within 24 hours, weekends and holidays excluded, 6.5 Citv’s Riaht to Chanae ScoDe of Work - City may require new or additional servia and Contractor shall comply, provided that if such changes result in increased costs, Contracl shall have a right to apply for a rate review and adjustment. A Standard Amendment Agreement shall be prepared by City and approved by City according to the procedur described in Carlsbad Municipal Code Section 3.28.172. Such amendment to Agreement sh not render ineffective or invalidate unaffected portions of the Agreement. Should City and Contractor be unable to agree to the terms of the requested chan within 60 days after City’s request, City reserves the right to competitively bid said services. 6.6 Title to Solid Waste - Ownership and the right to possession of Solid Waste, includi Designated Recyclables, placed for collection shall transfer directly from the service recipient Contractor upon placement of materials into an approved Solid Waste or Recyclal Receptacle. At no time shall City obtain any right of ownership or possession of Solid Wal placed for collection. SECTION 7. 7.1 Franchise Aareement Fee Amount - In consideration of the exclusive right, duty i privilege to collect, remove, and dispose all Solid Waste (including Designated Recycla Materials) generated within the City provided for in Article 4 of this Agreement, Contractor st pay City 5%% of the gross receipts derived from the services provided in this Agreement, the term of this Agreement. Upon each annual extension (July l), if any, the franchise fee SI increase %%, to a maximum of 7%%. 7.2 Time and Method of Franchise Fee Payment - Franchise fees shall be computed ihe basis of cash received each quarter for services rendered in accordance with i Agreement. Contractor shall prepare and mail remittance each quarter not later than calendar days after the end of each quarter. Franchise fee payments remitted later than twentieth day after the end of the quarter shall be subject to a late penalty fee of 1% of FEES TO BE PAID TO CITY 11 W e entire amount due, per week, or prorated portion thereof. The remittance will be accompank by a report setting forth the basis, and calculations used for computing the amount due. Tt gross receipts number used to calculate the fee paid shall be the same number as contained the general books of the Contractor, 7.3 AB 939 Fee - In addition to the Franchise Fee, Contractor shall pay to City an AB 9: fee as established by resolution of the City Council, at the same time and in the same mann as the Franchise Fee. SECTION 8. SERVICE RATES AND REVIEW 8.1 Service Rates: General - City shall establish by resolution solid waste services rates 1 all categories of service and types of containers. Contractor agrees that City’s payment receipts from City-billed customers, and Contractor’s retention of receipts from Contractor-bill customers, pursuant to Section 6.1, constitutes full and complete compensation for the servicc rendered pursuant to this Agreement. 8.2 Extraordinarv Cost Increases - Periodically during the course of this Agreemer unforeseen circumstances beyond Contractor‘s control may arise which increase Contractoi costs. Should this occur, Contractor shall submit to City a written request for rate increases, t appropriate. City shall respond to this request within ten days. If City and Contractor mutua agree on the increase, a resolution shall be prepared and submitted to City Council I consideration, Should City and Contractor be unable to agree to the terms of this adjustme within 30 days after Contractor’s request, Contractor may terminate this Agreement upon 11 days written notice. 8.3 Hardship - City reserves the power, by appropriate ordinance or resolution, togett- with administrative regulation, to provide for the waiver or reduction of Solid Waste Servic fees to certain customers in hardship situations. City shall have sole authority to determine t circumstances which constitute hardship. SECTION 9. INDEMNITY, INSURANCE, BOND 9.1 Indemnification A. General. Contractor shall indemnify and hold harmless City, its office1 employees, agents and volunteers from and against any and all claims, damages, losses ai expenses including attorney fees arising out of the performance of the work described here caused in whole or in part by any willful misconduct or negligent act or omission of Contract( any subcontractor, anyone directly or indirectly employed by any of them or anyone for who acts any of them may be liable, except where caused by the active negligence, sole negligenc or willful misconduct of the City of Carlsbad. Contractor shall at its own expense, upon written request by City, defend any such s 12 W 0 or action brought against City, its officers, employees, agents and volunteers. Contractor indemnification of City shall not be limited by any prior or subsequent declaration by Contract0 B. Hazardous Materials Indemnification. Contractor shall indemnify, defend wi counsel to be agreed upon by both parties, protect and hold harmless City, its officer employees, agents and volunteers from and against any and all claims, damages (including b not limited to special and consequential damages), natural resources damages, punith damages, injuries, response, remediation and removal costs, losses, demands, debts, lien liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, chargc penalties and expenses (including but not limited to attorneys and expert witness fees ai costs incurred in connection with defending against any of the foregoing or in enforcing tt indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against, City or officers, officials, employees, agents and volunteers arising from or attributable to any repa cleanup or detoxification, or preparation and implementation of any removal, remedl response, closure or other plan (regardless of whether undertaken due to government actio concerning any hazardous substance or hazardous wastes at any Solid Waste Facility whe otherwise come to be located by Contractor or its activities pursuant to this Agreement resultii in a release of any hazardous substance into the environment. The foregoing indemnity intended to operate as an agreement pursuant to §107(e) of the Comprehensive Environmen Response, Compensation and Liability Act, “CERCLA”, also known as “Superfund”, 42 U.S. §9607(e), and California Health and Safety Code S25364, to defend, protect, hold harmless a indemnify City from all forms of liability under CERCLA, other statutes or common law for a and all matters addressed in this provision. This provision shall survive the expiration of t term of this Agreement. solid waste is or has been transported, transferred, processed, stored, disposed of or hi C. Repairs to Public Property. Contractor shall pay to City, on demand, the cost all repairs to public property made necessary by any operations of Contractor under tt Agreement. 9.2 Insurance A. General. Contractor shall obtain and maintain for the duration of the Agreeme and any and all amendments insurance against claims for injuries to persons or damage property which may arise out of or in connection with performance of the work hereunder Contractor, its agents, representatives, employees or subcontractors. Said insurance shall I obtained from an insurance carrier admitted and authorized to do business in the State California. The insurance carrier is required to have a current Best‘s Key Rating of not le than “A-:V” and shall meet City’s policy for insurance as stated in Resolution No. 91-403. 13 e a B. Coverages and Limits. Contractor shall maintain the types of coverages ar minimum limits indicated herein, unless a lower amount is approved by the City Attorney or ci Manager: 1. Comprehensive General Liability Insurance: $1,000,000 combine single-limit per occurrence for bodily injury, personal injury and property damage. If tt submitted policies contain aggregate limits, general aggregate limits shall apply separately . the work under this contract or the general aggregate shall be twice the required per occurrenc limit. Automobile Liability: $1,000,000 combined single-limit per accident fc 2. bodily injury and property damage. 3. Workers' Compensation and Employer's Liability. Worker Compensation limits as required by the Labor Code of the State of California and Employer Liability limits of $1,000,000 per accident for bodily injury. C. Deductibles and Self-Insured Retentions. Any deductibles or self-insurE retention must be declared to and approved by City. At the option of City, the insurer shs either reduce or eliminate such deductibles or self-insured retention as respects City, il officers, officials, employees, agents, or volunteers; or Contractor shall procure a letter of cred or bond guaranteeing payment of losses and related investigations, claim administration an defense expenses. Additional Provisions. Contractor shall ensure that the policies of insuranc required under this agreement contain, or are endorsed to contain, the following provisions. Workers' Compensation. D. 1. City shall be named as an additional insured on all policies excludin 2. Contractor shall furnish certificates of insurance to City befor 3. 4. commencement of work. Contractor shall obtain occurrence coverage. This insurance shall be in force during the life of this Agreement and an extension thereof and shall not be canceled without 30 days prior written notice to City sent b certified mail. 5. If Contractor fails to maintain any of the insurance coverages require herein, then City will have the option to declare Contractor in breach, or may purchasi replacement insurance or pay the premiums that are due on existing policies in order that thl required coverages may be maintained. Contractor is responsible for any payments made b City to obtain or maintain such insurance and City may collect the same from Contractor c deduct the amount paid from any sums due Contractor under this Agreement. 14 9.3 Faithful Performance Bond - Contractor shall file with City a bond, payable to Cit securing Contractor's faithful performance of its obligations under this Agreement. Tt principal sum of the bond shall be $1,000,000. The bond shall be executed as surety by corporation authorized to issue surety bonds in the State of California, with a financial conditic and record of service satisfactory to City. If Contractor fails to obtain such bond, City m( obtain such bond at Contractor's expense, and such expense shall not be allowed as l expense for rate purposes. SECTION IO. CITY'S RIGHT TO PERFORM SERVICE 10.1 General - In addition to any and all other legal or equitable remedies, in the event tt Contractor, for any reason whatsoever, fails, refuses or is unable to perfarm any of the servic required by this Agreement in the time and manner provided for in this Agreement, for a peri of more than 72 hours, and as a result thereof, solid waste, recyclables, or yard waste shot accumulate in the city to such an extent, in such a manner, or for such a time that the C Manager should find that such accumulation endangers or menaces the public health, safety welfare, then the City Manager shall have the right, but not the obligation, without payment Contractor upon 24 hours written notice to Contractor during the period of such emergency determined by the City Manager, (1) to cause to be performed, such service itself with its oi or other personnel without liability to Contractor; and/or (2) to take possession of any or all Contractor's land, or leasehold interests therein, equipment and other properly used or usefu the collection and transportation of solid waste, recyclables and yard waste and to use SL property to collect and transport any solid waste, recyclables and yard waste generated wit the city which Contractor would otherwise be obligated to collect and transport pursuant to t Agreement. Notice of Contractor's failure, refusal or neglect to perform the services pursuan and in accordance with this Agreement may be given orally by telephone to Contractor at principal office and shall be effective immediately. Written confirmation of such oral notificat shall be sent to Contractor within 24 hours of the oral notification. Contractor further agrees that in such event: A. It will fully cooperate with City to effect the transfer of possession of its propc to City for City's use. City shall assume responsibility for the proper and normal use of SI equipment and facilities while in its possession. B. It will, if City so requests, keep in good repair and condition all of such prope provide all motor vehicles with fuel, oil and other service, and provide such other service may be necessary to maintain said property in operational condition. C. City may immediately engage all or any personnel necessary or useful for collection and transportation of solid waste, recyclables, or yard waste, including, if City 15 e 0 desires, employees previously or then employed by Contractor for the purposes of fulfillit Contractor's obligations under this Agreement. Contractor further agrees, if City so requests, furnish City the services of any or all management or office personnel employed by Contract for the purposes of fulfilling Contractor's obligations under this Agreement, and whose servia are necessary or useful in City's performance of services. City's exercise of rights under this Article 10 (1) does not constitute a taking of privs property for which compensation must be paid; (2) will not create any liability on the part of C to Contractor; and (3) does not exempt Contractor from the indemnity provisions of Article which are meant to extend to circumstances arising under this Article, provided that Contraci is not required to indemnify City against claims and damages arising from the sole negligen of City, its officers, employees, agents or volunteers acting under this Article. 10.2 Duration of Citv's Possession - City has no obligation to maintain possession Contractor's property and/or continue its use in collecting and transporting solid was recyclables or yard waste for any period of time, and may, at any time, in its sole discretic relinquish possession to Contractor. City's right to retain temporary possession of Contractor's property, and to provide sc waste, recyclables or yard waste collection services, shall continue until Contractor c demonstrate to City's reasonable satisfaction that it is ready, willing and able to resume su services, which may include the award of an agreement to another waste hauling company. SECTION 11 DEFAULT AND REMEDIES 1 1.1 service or until other suitable arrangements can be made for the provision of solid wa! Events of Default - Each of the following shall constitute an event of default hereundt A. Failure to Perform. (1) Contractor fails to perform any of its obligations unc Article 5 of this Agreement, or future amendments to this Agreement, and the failure or refu to perform any obligations as required by this Agreement is not cured within 2 business d: after receiving notice from City specifying the breach; or (2) in the case of breach of any otl provision of this Agreement, the breach is not cured within 30 days after receiving writ notice from the City, provided that where such breach cannot be cured within 30 da Contractor shall not be in default of this Agreement if Contractor has commenced such act required to cure the particular breach within 10 days after such notice, and continues si performance diligently until completed. B. Misrepresentation. Contractor has made any representation or disclosure to ( in connection with or as an inducement to entering into this Agreement or any fut amendment to this Agreement which is false or misleading in any material respect as of time the representation or disclosure is made, whether or not such representation or disclos 16 0 e appears as part of this Agreement, prejudgment attachment) of, or levy affecting possession on, the operating equipment ar facilities of such proportion as to substantially impair Contractor's ability to perform under th C. Seizure or Attachment. There is a seizure or attachment (other than Agreement and which cannot be released, bonded, or otherwise lifted within 48 hour excluding weekends and holidays. Financial Insolvency. Contractor files a voluntary petition for debt relief und any applicable bankruptcy, insolvency, debtor relief, or other similar law or hereafter in effect, consents to the appointment of or taking of possession by a receiver, liquidator, assignee (0th than as a part of a transfer of equipment no longer useful to Contractor or necessary for tt Agreement), trustee (other than as security for an obligation under a deed of trust), custodia sequestrator (or similar official) for any part of Contractor's operating assets or any substant part of Contractor's property, or makes any general assignment for the benefit of Contractoi creditors, or fails generally to pay Contractor's debts as they become due or shall take ai action in furtherance of any of the foregoing. Court Decisions. Any court having jurisdiction enters a decree or order for reli in respect of Contractor, in any involuntary case brought under any bankruptcy, insolvenc debtor relief, or similar law now or hereafter in effect, or Contractor consents or fails to oppo any such proceeding, or any such court shall enter a decree or order appointing a receivt liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Contractor or for a part of Contractor's operating equipment or assets, or orders the winding up or liquidation affairs of Contractor. F. Reasonable Assurance of Performance. Contractor fails to provide reasonat assurances of performance as required under Section 11.6. 11.2 Ricrht to Terminate UDon Default - Upon a default by Contractor, the City Council sh have the right to terminate this Agreement without need for any hearing, suit, or legal action. 11.3 Possession of ProDerh, UDon Termination - In the event of termination for default, C D. E. shall have the right, in accordance with the provisions of Article 10 hereof, to take possession and use in the provision of services enumerated under this Agreement any and all Contractor's property as City deems necessary. 11.4 CiWs Remedies Cumulative: SDecific Performance - City's right to terminate tl Agreement under Section 1 1.2 and to take possession of Contractor's properties under Secti 11.3 are not exclusive, and City's termination of the Agreement shall not constitute an elect1 of remedies. Instead, they shall be in addition to any and all other legal and equitable rig' and remedies which City may have. 17 0 0 By virtue of the nature of this Agreement, the urgency of timely, continuous and hic quality service, the lead time required to effect alternative service, and the rights granted t City to Contractor, the remedy of damages for a breach hereof by Contractor is inadequate ar City shall be entitled to injunctive relief andlor specific performance if it so desires. 11.5 Excuse from Performance - The parties shall be excused from performing the respective obligations hereunder in the event they are prevented from so performing by reasc of floods, earthquakes, other "Acts of God", war, civil insurrection, riots, acts of any governmei (including judicial action), and other similar catastrophic events which are beyond the control 1 and not the fault of the party claiming excuse from performance hereunder. Labor unres including but not limited to strike, work stoppage or slow-down, sick-out, picketing, or othc concerted job action conducted by Contractor's employees or directed at Contractor is not i excuse from performance and Contractor shall be obligated to continue to provide servic notwithstanding the occurrence of any or all of such events; provided, that in the case of lab( unrest or job action directed at a third party over whom Contractor has no contrd, the inabilii of Contractor to provide service due to the unwillingness or failure of the third party to provid reasonable assurance of the safety of Contractor's employees while providing service or 1 make reasonable accommodations with respect to container placement and point of deliver time of collection or other operating circumstances to minimize any confrontation with pickets ( the number of persons necessary to provide service shall, to that limited extent, excus performance and provided further that the foregoing excuse shall be conditioned o Contractor's cooperation in providing service at different times and in different locations. The party claiming excuse from performance shall, within two days after such party ha notice of such cause, give the other party notice of the facts constituting such cause an asserting its claim to excuse under this Section. Notwithstanding, Contractor shall comply wit City's emergency preparedness plan in the event of a catastrophic event. In the event that either party validly exercises its rights under this Section, the partie hereby waive any claim against each other for any damages sustained thereby. The partial or complete interruption or discontinuance of Contractor's service caused b one or more of the events described in this Section shall not constitute a default by Contractc under this Agreement. Notwithstanding the foregoing, however, (1) the existence of an excus from performance will not affect City's rights under Article 10, and (2) if Contractor is excuse from performing its obligation hereunder for any of the causes listed in this Section for a perio of 30 days or more, other than as the results of third party labor disputes where service cannc be provided for reasons described earlier in this Section, City shall nevertheless have the righi in its sole discretion, to terminate this Agreement with 10 days written notice. 18 0 0 11.6 Riaht to Demand Assurances of Performance - If City believes in good faith th Contractor's ability to perform under this Agreement has been placed in jeopardy by event default or any other reason, City may, at its option and in addition to all other remedies Ci may have, demand from Contractor reasonable assurances of timely and proper performam of this Agreement, in such form and substance as City believes in good faith is reasonat necessary in the circumstances to evidence continued ability to perform under this Agreemen If Contractor fails or refuses to provide satisfactory assurances of timely and prop performance in the form and by the date required by City, such failure or refusal shall be i event of default for purposes of this Agreement. SECTION 12. GENERAL PROVISIONS 12.1 Status of the Contractor - Contractor shall perform the services provided for herein Contractor's own way as an independent contractor and in pursuit of Contractor's independc calling, and not as an employee of City. Contractor shall be under control of City only as to t result to be accomplished, but shall consult with City as necessary. The persons used Contractor to provide services under this Agreement shall not be considered employees of C for any purposes whatsoever. Contractor is an independent contractor of City. The payment made to Contrac pursuant to this Agreement shall be the full and complete compensation to which Contractor entitled. Contractor shall be solely responsible for the acts and omissions of its office employees, subcontractors and agents. City shall not make any federal or state 1 withholdings on behalf of Contractor or its employees or subcontractors. City shall not required to pay any workers' compensation insurance or unemployment contributions on beb of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within days for any tax, retirement contribution, social security, overtime payment, unemploymi payment or workers' compensation payment which City may be required to make on behall Contractor or any employee or subcontractor of Contractor for work done under this Agreemi or such indemnification amount may be deducted by City from any balance owing to Contract 12.2 Comoliance with Law - In providing the services required under this Agreemc Contractor shall at all times, at its sole cost, comply with all applicable laws, permits i licenses of the United States, the State of California and the City and with all applica regulations promulgated by federal, state, regional or local administrative and regulat agencies, now in force and as they may be enacted, issued or amended during the term. 12.3 Governincl Law - This Agreement shall be governed by, and construed and enforcec accordance with the laws of the State of California, 12.4 Jurisdiction - Any lawsuits between the parties arising out of this Agreement shall 19 0 e brought and concluded in the courts of the State of California, which shall have exclusi> jurisdiction over such lawsuits. With respect to venue, the parties agree that this Agreement made in and will be performed in San Diego County. 72.5 Assignment - Contractor shall not assign its rights nor delegate OF otherwise transfer obligations under this Agreement to any other persons without the prior written consent of Ci Any such assignment without the consent of City shall be void and the attempted assignmc shall constitute a material breach of this Agreement. For purposes of this Section, "assignment" shall include, but not be limited to (1) a sa exchange or other transfer of substantially all of Contractor's assets to a third party; (2) a sa exchange or other transfer of 10% or more of the outstanding common stock of Contractor; ( any reorganization, consolidation, merger, recapitalization, stock issuance or re-issuanc voting trust, pooling agreement, escrow arrangement, liquidation or other transaction Contractor or any of its shareholders is a party which results in a change of ownership control of 10% or more of the value or voting rights in the stock of Contractor; or (4) a combination of the foregoing (whether or not in related or contemporaneous transactions) wh has the effect of any such transfer or change of ownership. For purposes of this Section, 1 term "proposed assignee" shall refer to the proposed transferee(s) or other successor(s) in 1 interest pursuant to the assignment. 12.6 Subcontractinq - Contractor shall not enter into any agreement with another person perform any of the obligations under this Agreement without the prior written consent of City. Contractor shall subcontract any of the work to be performed under this Agreement Contractor, Contractor shall be fully responsible to City for the acts and omissions Contractor's subcontractor and of the persons either directly or indirectly employed by subcontractor, as Contractor is for the acts and omissions of persons directly employed Contractor. Nothing contained in this contract shall create any contractual relationship betwe any subcontractor of Contractor and City. Contractor shall bind every subcontractor and ev subcontractor of a subcontractor by the terms of this contract applicable to Contractor's w unless specifically noted to the contrary in the subcontract in question approved in writing City. 12.7 Bindina on Successors - The provisions of this Agreement shall inure to the benefi and be binding on the successors and permitted assigns of the parties. 12.8 Transition to Next Contractor - At the point of transition to a new contractor, Contrac will cooperate with City and subsequent contractor(s) to assist in an orderly transition which include Contractor providing route lists and billing information. Contractor will not be obliget sell collection vehicles, bins and containers to next contractor, but Contractor may at its opi 20 0 0 enter into negotiations with the next contractor to sell collection vehicles, bins and containers. 12.9 Parties in Interest - Nothing in this Agreement, whether express or implied, is intend( to confer any rights on any persons other than the parties to it and their representative successors and permitted assigns. 12-10 Waiver - The waiver by either party of any breach or violation of any provision(s) of tt Agreement shall not be deemed to be a waiver of any breach or violation of any other provisicl The subsequent acceptance by either party of any monies which become due hereunder shl not be deemed to be a waiver of any pre-existing or concurrent breach or violation by the 0th party of any provision of this Agreement. 12.1 I Contractor's lnvestiaation - Contractor has made an independent investigatic (satisfactory to it) of the conditions and circumstances surrounding this Agreement and tl work to be performed by it. 12.12 Notices - All notices, demands, requests, proposals, approvals, consents and 0th communications which this Agreement requires, authorizes or contemplates, except otherwise specifically provided, shall be in writing and shall either be personally delivered to representative of the parties at the address below or be deposited in the United States ma first class postage prepaid, addressed as follows: If to City: City Manager City of Carisbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 If to Contractor: President Coast Waste Management P.O. Box 947 Carlsbad, CA 92018-947 The addresses to which communications may be delivered may be changed from time to tin by written notice to other party. 12.1 3 ReDresentatives of the Parties - The City Council hereby designates the City Managl or designee as the City's representative and City Council delegee for all actions required of tt City Council pursuant to this Agreement except the setting of rates for all categories of servict and types of containers by resolution from time to time pursuant to Section 8.1. Contractor shall, upon execution of this Agreement, designate in writing a responsib offtcer who shall serve as the representative of Contractor in all matters related to tt Agreement and shall inform City in writing of such designation and of any limitations upon his ( her authority to bind Contractor. City may rely Upon actions taken by such designate representative as actions of Contractor unless they are outside the scope of the authori delegated to him/her by Contractor as communicated to City. 21 a 0 12.14. Claims and Lawsuits - Contractor agrees that any contract claim submitted to City mu! be asserted as part of the contract process as set forth in this Agreement and not in anticipatio of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim i submitted to City, it may be considered fraud and Contractor may be subject to crimin, prosecution. Contractor acknowledges that California Government Code sections 12650 j m., the False Claims Act, provides for civil penalties where a person knowingly submits false claim to a public entity. These provisions include false claims made with deliberai ignorance of the false information or in reckless disregard of the truth or falsity of information. City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover i litigation costs, including attorney’s fees. Contractor acknowledges that the filing of a false clai may subject Contractor to an administrative debarment proceeding wherein Contractor may t prevented to act as a contractor on any public improvement for a period of up to fij years. Contractor acknowledges debarment b her jurisdiction is grounds for City disqualify Contractor from the selection process. nitial) 3.32.028 pertaining to false claims are incorporated herein by reference. dit Initial) 12.15. Prohibited Interest - No official of City who is authorized in such capacity on behalf City to negotiate, make, accept, or approve, or take part in negotiating, making, accepting, approving of this Agreement, shall become directly or indirectly interested personally in tf contract or in any part thereof. No officer or employee of City who is authorized in su capacity and on behalf of City to exercise any executive, supervisory, or similar functions connection with the performance of this contract shall become directly or indirectly interest personally in this Agreement or any part thereof. 12.16. Verbal Aareement or Conversation - No verbal agreement or conversation with a officer, agent, or employee of City, either before, during or after the execution of tl Agreement, shall affect or modify any of the terms or obligations herein contained nor enti Contractor to any additional payment whatsoever under the terms of this contract. 12.17 Conflict of Interest - City has determined, using the guidelines of the Political Ref0 Act and the City’s conflict of interest code, that Contractor will not be required to file a conflict interest statement as a requirement of this Agreement. However, Contractor here acknowledges that Contractor has the legal responsibility for complying with the Politi Reform Act and nothing in this Agreement releases Contractor from this responsibility. 12.18 Business License - Contractor shall obtain and maintain a City of Carlsbad Businc License for the duration of this Agreement. 12.1 9 Entire Aareement - This Agreement, together with any other written document refer1 The provisions of Carlsbad Municipal Code sections 3.32.025, 3.3 , 3.32.027 ai 22 0 0 to or cantemplated herein, embody the entire agreement and understanding between ti parties relating to the subject matter hereof. Neither this Agreement nor any provision here may be amended, modified, waived or discharged except by an instrument in writing executi by the party against which enforcement of such amendment, waiver or discharge is sought. 12.20 Section Headincls - The section headings in this Agreement are for convenience a reference only and are not intended to be used in the construction of this Agreement nor to al, or affect any of its provisions. 12.21 References to Laws - All references in this Agreement to laws shall be understood include such laws as they may be subsequently amended or recodified, unless otherwi specifically provided. 12.22 Interpretation - This Agreement shall be interpreted and construed reasonably a neither for nor against ether party, regardless of the degree to which either party participated its drafting. 12.23 Severability - If any non-material provision of this Agreement is for any reason deem to be invalid and unenforceable, the invalidity or unenforceability of such provision shall r affect any of the remaining provisions of this Agreement which shall be enforced as if su invalid or unenforceable provision had not been contained herein. 12.24 Countemarts - This Agreement may be executed in counterparts each of which st- be considered an original. \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ \\\ 23 e 0 Executed by Contractor this 1 7th day of 0C-r , 1997. CONTRACTOR: Coast Waste Management ATTEST: ALETHA L. RAUTEhK City Clerk (print L?i;;~JL namekitle) UP By: q, 1997 DATE I (sign here) (print name/title) (Proper notarial acknowledgment of execution by Contractor must be attached.) (President or vice-president and secretary or assistant secretary must sign for corporations only one officer signs, the corporation must attach a resolution certified by the secretary assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL City Attorney BY 24 m 0 1 STATE OF CALIFORNIA }SS. On 1: i ,-; 153 COUNTY OF 969 (^e LL~KCC~A I 1 personal19 appeared yf<&+ ),t, -2 ’&Ah,- I .J e[ ‘I 1 ’R 4q, i-I‘k , before me ‘.I/,’ > i, &[ ,[ il&&W L /’adL4’[ + b. l.’J..c.l, / ’ , I personally know me (or proved to me on the basis of satisfactory evidence) tc the person(s) whose names(s) is/are subscribed to the wit instrument and acknowledged to me that he/she/they executed same in his/her/their authorized capacity(ies), and that his/her/their signature(s) on the instrument the person(s) or entity upon behalf of which the person(s) acted, executed instrument. WITNESS my hand and official seal. a e I ASSISTANT SECRETARY'S CERTIFICATE COAST WASTE MANAGEMENT, INC. I, Bryan J. Blankfield, Assistant Secretary of Coast Waste Management, Inc., a Califon corporation (the "Corporation"), do hereby certify that the following resolution was adopted the Board of Directors of the Corporation and that such resolution has not been amend6 modified or rescinded and is in full force and effect as of the date hereof: Resolved, that Robert B. Shaw, Vice President of the Corporation, or any other officer of this Corporation, and each of them, are hereby authorized, following compliance with appropriate corporate policies and procedures, to execute, bind and submit on behalf of the Corporation an agreement (the "Agreement") with the City of Carlsbad and to execute on behalf of the Corporation any and all documents required to be submitted by the Corporation in connection with the Agreement. Dated: October 17, 1997 Assistant Secretary - 0 0 -- - - continue unless and until Carlsbad shall have notified Sublessee writing that it has so elected to terminate this Sublease and Sublessee’s right to possession. Its rights under its Lease with County Airports. The-rights and remedies of Carlsbad set forth in this Paragraph (N) are in addition to the rights of County Airports under the Lease between County Airports an Carlsbad. 4. 0. Defaults by Carlsbad. If Carlsbad shall neglect or fail to perform or observe any of the terms, covenants, or conditions contained in this Sublease and/or in Exhibits A and B attach hereto to be performed on the part of Carlsbad and which are necessary in order to enable Coast to perform its obligations, upon notice thereof, in writing, from Coast to performance on its part. In the event that Carisbad fails or refuses to cure any such failure of performance on its part, such failure shall be deemed a material breach of t~ Sublease entitling Coast to the remedies provided at law and in equity, including but not limited to, the right to terminate the Sublease and cease paying rent. Carlsbad , Carlsbad shall within a reasonable time cure any such failure of P. Notices. Notices under this Sublease may be delivered, in writing, by mail or personal delivery to the following parties at the following addresses: City Manager City of Carlsbad Carlsbad, CA 92008 Coast Waste Management, Inc. 1200 Carlsbad Village Drive .. do County of San Diego Airports Division 1960 Joe Crosson Drive El Cajon, CA 92020 Any party may, by written notice, delivered pursuant to this provision, at any tin designate a different address and contact person to whom notices shall be sent. Draft 5 - CoastlCarlsbad Sublease ClTCAD7.324 Revised October 9,1997 8 - -- - e - 0 Q. Sublessee understands and acknowledges that Carlsbad has a right of first Waiver of Relocation Assistance Benefits. refusal to acquire the property under Exhibits A and B attached hereto, and that Carlsbad may, in the future, (but not during the term of the County AirportlCarlsbad Lease) undertake by eminent domain to acquire title to the property. By entering intc this Sublease and becoming a subtenant of Carlsbad, Sublessee may become entitle 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 intc 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/oi its right to pursue eminent domain, and Sublessee releases Carlsbad and County Airports from any liability for payment of such relocation benefits, provided, however, that Sublessee does not waive its rights to relocation benefits as to any entity other than Carlsbad and County Airports. this Sublease, Sublessee hereby waives any and all rights it may now have, or may R. Inteqration of Sublease with County/Carlsbad Lease and Settlemen Aqreement. The terms, conditions, and provisions of this Sublease shall be integrated with the County Airports/Carlsbad Lease (Exhibit A) and the Settlement Agreement (Exhib B). The fact that some provisions, but not all, of the County/Carlsbad Lease (Exhibit, and/or of the Settlement Agreement (Exhibit B) may be restated in this Sublease doe: not diminish the validity or importance of any of the other provisions. The provisions Exhibits A and B set the minimum requirernents,as supplemented by any additional provisions in this Sublease. Under all circumstances Coast shall, at minimum, be obligated to perform all of Carlsbad’s obligations to the County under Exhibit A. S. Expansion. The Premises shall be expanded, if at all, in conformance with the terms and provisions of Exhibits A and 8. In the event of expansion, Carlsbad and Sublessee agree to amend this Sublease as appropriate to incorporate any such expansion. No expansion of the Premises on the part of Sublessee shall occur except with the prior express written consent of Carlsbad and County Airports in a manner consistent with Exhibits ,A and 8. DraR 5 - CoasUCarlsbad Sublease CITCAD7.324 Revised October 9.1997 9 - -_ -- __ -- - - 0 - - 0 111. GENERAL PROVISIONS. A. Authority. Sublessee represents and warrants that it has full power and authority to execute and fully perform its obligations under this Sublease pursuant to its governinl instruments, without the need for any further action, and that the person(s) executing this Sublease on behalf of Sublessee is(are) the duly designated agent(s) of Sublesst and is(are) authorized to do so. B. Brokers. Sublessee warrants that it has had no dealings with any real estate broker or agent in connection with the negotiation andlor execution of this Sublease. In the event any broker other than the brokers acknowledged in writing by Carlsbad make claim for monies owed, Sublessee shall indemnify, defend and hold Carlsbad and‘ County Airports harmless therefrom. C. Captions. The captions, headings and index appearing in this Sublease are inserted for convenience only and in no way define, limit, construe, or describe the scope of inten of the provisions of this Sublease. D. Carisbad Approval. Except where stated herein to the contrary, the phrases “Carlsbad’s approval,” and “Carlsbad’s written approval’’ or such similar phrases shall mean approval of Carlsbad’s City Manager or said Manager’s deGgnee as authorized by said Manager writing. E. Any dispute or allegation of breach of this Sublease shall be handled in Alleqation of Breach: Notice: Riqht to Cure conformance with the dispute resolution and breach provisions of the Settlement Agreement and the County Airports/Carlsbad Lease. F. Cumulative Remedies. In the event of a defauk under this Sublease, each party’s remedies shall be limited to those remedies set forth in this Sublease; any such remedies are cumulativc and not exclusive of any other remedies under this Sublease to which the non- defaulting party may be entitled. - - Draft 5 - CoasUCarlsbad Sublease CITCAD7.324 Revised October 9,1997 10 _- -- - 0 - * - G, Entire Aareement. This Sublease, together with all addenda, exhibits and riders attached hereto, constitutes the entire agreement between the parties with respect to the subject matt hereof, and all prior or contemporaneous agreements, understandings and I‘epESentatiOnS, oral or written, are superseded. H, Estoppel Certificate. Sublessee shall at any time during the term of this Sublease, within five (5) business days of written notice from Carlsbad, execute and deliver to Carlsbad a statement in writing certifying that this Sublease is unmodified and in full force and effect or, if modified, stating the nature of such modification. Sublessee’s statement shall include other details requested by Carlsbad, such as the date to which rent and other charges are paid, Sublessee’s knowledge concerning any outstanding defaults with respect to Carlsbad’s obligations under this Sublease and the nature of such defaults if they are claims. Any such statement may be relied upon conclusively by ai prospective purchaser or encumbrancer of the Premises. Sublessee’s failure to deliv such statements within such time shall be conclusive upon Sublessee that this Sublease is in full force and effect, except to the extent any modification has been represented by County, and that there are no uncured defaults in Carlsbad’s performance, and that not more than one month’s rent has been paid in advance. 1. Exhibits. All exhibits referred to herein are attached hereto and incorporated by referenc J. Force Maieure. 4. In the event either party is prevented or delayed from performing any act or discharging any obligation hereunder, except for the payment of rent by Sublessee, because of any and all causes beyond either party’s reasonable control, including unusual delays in deliveries, abnormal adverse weather conditions, unavoidable casualties, strikes, labor disputes, inability to obtain labor, materials or equipment, act of God, governmental restrictions, regulations or controls, any hostile government actions, civil commotion and fire or other casualty, legal actions attacking the validity c this Sublease or Carlsbad’s occupancy of the Premises, or any other casualties beyon the reasonable control of either party except casualties resulting from Lessee’s negligent operation or maintenance of the Premises or the Property (“Force Majeure”), performance of such act shall be excused for the period of such delay, and the period for performance of such act shall be extended for a period equivalent to the period of such delay. I Force Majeure shall not include any bankruptcy, insolvency, or other financial inability on the part of either party hereto. c Draft 5 - CoastlCarIsbad Sublease ClTCAD7.324 Revised October 9.1997 - I1 - -- - 0 =. - K. Gouernina Law. This Sublease shall be governed, construed and enforced in accordance with the laws of the State of California. L. Interpretation. The parties have each agreed to the use of the particular language of the provisions of this Sublease, and any question of doubtful interpretation shall not be resolved by any rule of interpretation providing for interpretation against the parties who cause an uncertainty to exist or against the draftsperson. M. Joint and Several Liability. If more than one person or entity executes this Sublease as Sublessee, each c them is jointly and severally liable for all of the obligations of Sublessee hereunder. N. Sublessee’s Lease Administration. Sublessee confirms that Sublessee’s Lease Administrator has been given full operational responsibility for compliance with the terms of this Sublease. Sublessee shall provide Carlsbad with a written schedule of its normal hours of business operati on the Premises, and Sublessee’s Sublease Administrator or a representative designated thereby shall be (i) available to Carlsbad on a twenty-four (24) hour a dab seven (7) day a week, basis, and (ii) present on the Premises during Sublessee’s normal business hours, to resolve problems or answer questions pertaining to this Sublease and Sublessee’s operations on the Premises. ‘. 0. Modification. The provisions of this Sublease may not be modified, except by a written instrument signed by both parties and approved in writing by County Airports. P. Partial invalidity. If any provision of this Sublease is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Sublease shall not bc affected thereby. Each provision shall be valid and enforceable to the fullest extent permitted by law. Q. Payments. Except as may otherwise be expressly stated, each payment required to be made by Sublessee shall be in addition to and not in substitution for other payments ’ be made by Sublessee. Draft 5 - Coadkarlsbad Sublease ClTCAD7.324 Revised October 9,1997 12 - __ -_ ’I e, e 0 R. Successors & Assiqns. This Sublease shall be binding on and inure to the benefit of the parties and their successors and assigns, all of whom shall be jointly and severally liable hereunder, except as may otherwise be provided herein. S. Time of Essence. Time is of the essence of each and every provision of this Sublease. T. Waiver. No provision of this Sublease or the breach thereof shall be deemed waived, except by written consent of the party against whom the waiver is claimed. The waive by Carlsbad of any breach of any term, covenant or condition contained in this Sublease shall ‘not be deemed to be a waiver of such term, covenant or condition of any subsequent breach thereof, or of any other term, covenant or condition containec in this Sublease. Carlsbad’s, or County Airports’, subsequent acceptance of partial rent or performance by Sublessee shall not be deemed to be an accord and satisfactic or a waiver of any preceding breach by Sublessee of any term, covenant or condition this Sublease by reason of such breach, regardless of Carlsbad’s or County Airports’ knowledge of such preceding breach at the time of Carlsbad’s or County Airports’ acceptance. The failure on the part of Carlsbad to require exact or full and complete compliance with any of the covenants, conditions of agreements of this Sublease shal not be construed as in any manner changing or waiving the terms of this Sublease or as estopping Carlsbad from enforcing in full the provisions hereof. No custom or practice which may arise or grow up between the parties hereto in the course of administering this Sublease shall be construed to waive, estop or in any way lessen tt right of Carlsbad to insist upon the full performance of, or compliance with, any term, covenant or condition hereof by Sublessee, or construed to inhibit or prevent the right of Carlsbad to exercise its rights with respect to any default, dereliction or breach of this Sublease by Sublessee. IN WITNESS WHEREOF, Carlsbad and Sublessee have duly executed this Sublease as of the day and year first above written. SUBLESSOR: Dated: r./2q/?7 I. b Draft 5 - CoasVCarlsbad Sublease CITCAD7.324 Revised October 9.1997 - 13 -- - - 2 .* - w e= SUBLESSEE: COAST WASTE MANAGEMENT, INC. Dated: 747/$. By: n, * e& Eb:?%?$bw up APPROVED AS TO FORM: Dated: ‘b/ 7 /9? WORDEN, WILLIAMS, RICHMOND a ELL A Professional Corporation By: Counsel for City of Carlsbad Dated: I 0 /I7 1‘17 -- By : (? lLMd:*<dm -&ttee-1$wlite, E. LL’r LL I &\LM /-turn, Counsel for Coast Waste Management, Inc. .. NOTE: THIS SUBLEASE HAS BEEN REVIEWED AND APPROVED BY THE COUN OF SAN DlEGO AIRPORTS DIVISION, LANDOWNER AND MASTER LESSOR, AS SET FORTH IN THE ATTACHED CONSENT TO SUBLEASE. - Draft 5 - CoasffCarlsbad Sublease CITCAD7.324 Revised October 9,1997 14 - >- .. _I-. ----- - - .- - - .’ w 0 CONSENT TO SUBLEASE WHEREAS, the COUNTY OF SAN DIEGO, hereinafler referred to as “County”, has lea a portion of McClellan-Palomar Airport to the City of Carlsbad, hereinafter referred to as “Lesse by lease known as County Contract No.71987R, entered into between County and the City Carlsbad on October 28, 1997 and hereinafter referred to as “Industrial Lease”; and WHEREAS, Lessee desires to enter into the sublease attached hereto as Exhibit “A” w Coast Waste Management, Inc. as sublessee; and WHEREAS, said Industrial Lease provides that subleases shall not be effective UI consented to in writing by County. NOW, THEREFORE, County does hereby consent to said sublease on this &?I& d of October, 1997, with the stipulation that in the event there is any conflict between said suble: and said Industrial Lease, the terms and conditions of said Industrial Lease shall prevail. ., COUNTY OF SAN DIEGO BY fh J.?h\/ Clerk, Board of Supervisors .* m:\pts\consent2.sub JOR 102397 - o e- - - PALOMAR SOLID WASTE FACILITY SUBLEASE OWNEWLESSOR: COUNTY OF SAN DIEGO, AIRPORTS DIVISION LESSEE: CITY OF CARLSBAD S U BLES SEE; PARCELS: COAST WASTE MANAGEMENT, INC. This Sublease Agreement (“Sublease”) is made and entered into effective as o E$ 8 e. Lease between the County of San Diego Airports Division (“County Airports”) and the City of Carlsbad, a copy of which is attached hereto as Exhibit A. This Sublease is between the City of Carlsbad (“Carlsbad”), a municipal corporation and Lessee of the subject property from County Airports under the Lease attached as Exhibit A and Coa Waste Management, Inc. (“Coast” or “Sublessee”), a California corporation engaged i the solid waste business. I. RECITALS . , 1997, concurreht with, and contingent upon, entry of that certain A. Incident to the settlement of litigation between Coast, Carlsbad, and the County of San Diego (“the County”), Carlsbad and County Airports are entering into the Lease of the subject property attached hereto as Exhib A. It is the intent of the parties to this Sublease that Coast, under this Sublease will assume and perform all of Carlsbad’s obligations under its Lease with County Airports, including but not limited to, the obligations tl pay rent, to maintain and protect the property and to use the property on as authorized by the County AirportdCarlsbad Lease. Coast, Carisbad, and the County each also has certain rights under that certain Settlement Agreement, a copy of which Settlement Agreement is attached hereto as Exhibit B. It is the intent of the parties that, pursuant to this Sublease, Coast will perform all of Carlsbad’s operational and sitc related obligations under the settlement Agreement during the term of Coast’s Sublease. The parties to this Sublease recognize and acknowledge that Coast is currently the franchised solid waste collection provider for the City of Carlsbad on a month-to-month basis. Nothing in this Sublease shall be construed to alter that relationship or to extend the term thereof. 5. C. Dr@ 5 - CoasVCarlsbad Sublease CITCAD7.324 Re$& October 9,1997 -I - - - 0 0 - * .' .- - - 11. SUBLEASE. A. Premises. The premises subleased to Coast under this Sublease are the same Property and Premises which Carlsbad leases from County Airports under the Lease attached hereto as Exhibit A. The premises ("Premises") shall include any additional acreage added to the Carlsbad Lease, and shall exclude any acreage deleted, during the term of this Sublease. B. Effective Date. This Sublease shall become effective when all of the following have occurred: The Settlement Agreement attached as Exhibit B is signed by all the parties, approved by the Court, and entered as provided by law. [The Settlement Agreement was signed on August I1 , 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 to Carlsbad and County Airports as provided below. I. 2. 3. C. Terms and Provisions. The terms and provisions of the County Airports/Carlsbad 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 terms, provisions, and conditions of the Lease between County Airports and Carlsbad and the terms, provisions, and conditions of this Sublease, the terms, provisions, and conditions of the Lease between County Airports and Carlsbac shall controi, provided that it is understood that the County Airports/Carlsbad Lease sets the minimum requirements and any additional requirements imposed by this Sublease shall apply and shall not be deemed in conflict with the Lease. D* - Rent. The rent to be paid by Coast is as set out in the County Airports/Carlsbad Lea: and Settlement Agreement attached as Exhibits A and B, respectively. Coast shall p: rent in a timely manner directly to County Airports, with a copy of rent payment documentation to Carlsbad confirming that rent has in fact been paid. The rent to be Lease and Settlement Agreement, respectively, any adjustments in the rent, late paid by Coast shall include, as may be authorized by the County AirportslCarlsbad Draft 5 - CoasffGarlsbad Sublease CITCAD7.324 Revised October 9.1997 2 -- - -- .-- .+ 0 0 - - - payment penalties, and any other Lease related charges (“extra rent” pursuant to Section I .I I of the County AirportlCarlsbad Lease) due from Carlsbad to the County. is expressly understood and agreed by the parties to this Sublease that in no event is Carlsbad to bear any of the costs of rent or other Lease related charges. Rather, it is Coast’s obligation to make all of these payments. If a security deposit is required by County Airports under its Lease to Carlsbad, Coast shall make the required deposit. E. Pavment of Tip Fee Reductions to Carisbad Per settlement Aq ree m e n t. In addition to rent, Coast shall transmit to Carlsbad the amount of reduced tip fees called for by III(C)(6) of the Settlement Agreement attached hereto as Exhibit “B ($2.50 per ton for all waste disposed of in County facilities above Carlsbad’s trash up a total of 800 tons per day, and $3.25 per ton on all waste disposed of in County landfills between 800 and 1000 tons per day, minus Carlsbad’s trash, all as set forth more detail in the attached Settlement Agreement). Coast shall keep accurate recorc in order to comply with the provisions of the Settlement Agreement attached as Exhib “B” and with the provisions of this Sublease, and Coast shall, within 15 days of the er of each calendar month transmit to Carlsbad by check all amounts due pursuant to th subparagraph, together with an accounting of how the amount was computed. Any disputes concerning the manner, timeliness, or amount of such payments shall be subject to the dispute resolution provisions of this Sublease and of the Settlement Ag ree men t . F. Coast accepts the Premises subject to any and all existing easements and Acceptance of Premises by Coast, encumbrances. Coast further acknowledges that it has, in fact, been utilizing the site for some number of years and that in entering into this Sublease it does so having fu inspected the Premises to its satisfaction. In this regard, Coast accepts responsibilit: for the cost of mitigating any existing or future hazardous or toxic materials cleanup t may be required at the site by the County AirpodCarlsbad Lease or as a result of Coast’s presence at the site. Coast further certifies and warrants that in entering intc this Sublease it is not relying upon any representation as to the condition of the property or the Premises by Carlsbad or County Airports. Coast further accepts and acknowledges the obligations of the County AirporWCarlsbad Lease and of the Settlement Agreement attached as Exhibits A and B, respectively, and that it has reviewed the same to its satisfaction with its own independent attorneys and advisors fully understands the same, and undertakes to perform the obligations thereof as call for by this Sublease in full without reservation. G. Taxes, Assessments and Fees. Carlsbad shall not be obligated to pay any taxes or assessments accruing against Sublessee related to the Lease, the Sublease, or the Premises or any intere: Draft 5 - CoasVCadsbad Sublease CITCAD7.324 Revised October 9.1997 3 .+ . 0 0 - - - of Sublessee therein before, during or after the term, or any extension thereof. All su( payments shall be the sole responsibility of Sublessee. In addition, Sublessee shall t solely responsible for payment of any taxes or assessments levied upon any improvements, fixtures or personal property located on the Premises, to the extent th: such taxes or assessments result from the business or other activities of Sublessee upon, or in connection with, the Premises. lndemni tylH ol d Harm! ess. H. Coast shall indemnify, defend, and hold harmless the City of Carlsbad, County Airports, and their officers, employees, and agents from and against any and all claim demands, liability, judgments, awards, fines, mechanics’ liens or other liens, losses, damages, expenses, rents, charges or costs of any kind or character, including attorneys’ fees and court costs (hereinafter collectively referred to as “claims”), arisin! from or in connection with, or caused by, directly or indirectly (I) any breach or defau by Sublessee of its obligations under this Sublease; (2) any act, omission, or , negligence of Sublessee, active or passive, or of any sub-sub-tenant or sub-sub-lessl and/or their respective contractors, subcontractors, licensees, invitees, agents, servants, or employees; (3) any use of the Premises, or any accident, injury, death or damage to any person or property occurring in, on or about the Premises or any part thereof, or any service delivery facilities, or any other portions of the Premises used b Sublessee; and (4) any labor dispute involving Sublessee, its employees, contractors subcontractors, or agents, including without limitation, claims caused by the concurrei negligent act or omission, whether active or passive, of Carlsbad or its officers, agent and/or employees; provided, however, that Sublessee shall have no obligation to defend or indemnify Carlsbad or County Airports or their officers, agents, and employees from claims caused by the negligent, willful or criminal act of Carlsbad or County Airports or their officers, agents, and employees. .. The foregoing shall include the obligation on the part of Sublessee and its successors, assigns, and guarantors, if any, jointly and severally, to protect, indemnif defend (with counsel of Carlsbad’s choosing as to claims against Carlsbad and Coun‘ Airports’ choosing as to claims against County Airports), reimburse and hold Carlsbac and County Airports and their officers, agents, and employees harmless from any claims, judgments, damages, penalties, fines, costs or expenses, known or unknown, contingent or otherwise, liabilities (including sums paid in settlement of claims), personal injury (including wrongful death), property damage (real or personal), or losz including attorneys’ fees, consultants fees, and experts fees (consultants and experts to be selected by Carlsbad) which arise during or after the term of this Sublease from or in connection with the presence or suspected presence of hazardous or toxic materials as defined by applicable federal, state, and/or local law as a result of acts, t Sublessee, its contractors, employees, customers, and/or agents anywhere in or on tt Premises, including the soil, groundwater, or soil vapor on or under the property, unless the hazardous or toxic materials are present as the result of the gross negligence or willful misconduct of Carlsbad, its officers, agents or employees. Withc Draft 5 - CoasVCarlsbad Sublease CITCAD7.324 Revised October 9,1997 4 - -w e . .‘ . - - limiting the generality of the foregoing, the indemnification provided by this section shall specifically cover costs incurred in connection with investigation of site conditior for any cleanup, remediation, removal or restoration work required by any hazardous toxic materials laws because of the presence of hazardous materials in the soil, groundwater or soil vapor on the Premises resulting from the release or discharge of hazardous materials by Sublessee during the course of Sublessee’s alteration or improvement of the Premises, unless the hazardous materials are present as a resul of the gross negligence or willful misconduct of Carlsbad or County Airports or their officers, agents, or employees. In the event that Carlsbad shall exercise any of its rights under this Sublease t enter the Premises and/or the Property or to authorize others to do so, Sublessee an( their officers, employees, and agents shall not be liable for, and Carlsbad shall defen indemnify, protect and hold said parties harmless from any and all claims, demands, expenses, charges or costs of any kind or character, including actual attorneys’ fees and court costs (collectively referred to as “claims”), arising from or in connection witt or caused by, directly or indirectly, any such entry by Carlsbad or its agents resulting any accident, injury, death or damage to any person or property occurring in, on, or about the Premises or any part thereof, or any service delivery facilities or any other portions of the Property. I. Insurance. Without limiting Sublessee’s indemnification obligations to Carlsbad and Cour Airports as set out above, Sublessee shall provide and maintain, during the term of tt 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 AirporVCarlsbad Lease which shall name Carlsbad, the members of its City Counci1,’and its officers, agents, employees and volunteers, individually and collectively, as additional insureds. Coast shall provide Carlsbad with the appropriate certificates of insurance confirming Carlsbad’s status i an additional insured in the form and manner as called for by paragraph E of Exhibit to the County AirporVCarlsbad Lease. Coast expressly acknowledges and agrees th the rights, remedies, and benefits running in favor of County Airports under Exhibit E the County AirporVCarlsbad Lease with respect to insurance requirements also run tl the benefit of Carlsbad as sublessor, and are enforceable directly by Carlsbad. liability, judgments, awards, fines, mechanics’ liens or other liens, losses, damages, J. Inspection. Carlsbad and its designated agent or agents, and County Airports and its designated agent or agents representing the landowner, shall have the right at any ti and from time to time, on reasonable notice to Sublessee (except in the event of an emergency in which case no notice shall be required) to inspect the Premises to determine whether Sublessee is complying with Sublessee’s obligations set forth in t Draft 5 - CoasffCarisbad Sublease CITCAD7.324 Revised October 9,1997 5 - - e -- -@ 0 Sublease, and to perform environmental inspections and samplings during regular business hours (except in the event of an emergency) or during such other hours as Carlsbad and/or County Airports and Sublessee may agree. If Sublessee is not in compliance with its obligations in any respect, upon demand for correction and failure to cure in a reasonable time on the part of Sublessee, Carlsbad and/or County Airport: shall have the right, in addition to Carlsbad’s and County Airports’ other remedies available at law and in equity, or under the Settlement Agreement, to enter upon the Premises immediately and, at Sublessee’s expense, take such action as Carlsbad and/or County Airports in their sole judgment deems appropriate to remediate any actual or threatened violation caused by Sublessee and/or to protect Carlsbad’s interest in ensuring that its lease with County Airports is not violated. Carlsbad and County Airports will use reasonable efforts to minimize interference with Sublessee’s use of the Premises but will not be liable for any interference caused by Carlsbad’s or County Airports’ entry and remediation efforts. K. Operations Aqreement. In conformance with section IV( C)(3) of the Settlement Agreement attached hereto as Exhibit “B,” the Operating Agreement attached hereto and incorporated herein by this reference as Exhibit “C” shall govern day to day operations at the Facility. The Operations Agreement may be revised from time to time by an agreemen in writing signed by the Carlsbad City Manager and an authorized representative of Coast without the need for a formal amendment of this Sublease. Carlsbad shall, at a1 times, keep in its official files an up-to-date version of this Sublease together with an up-to-date version of the Operations Agreement. L. Assiqnment; Consent Required. Sublessee shall not voluntarily or involuntarily assign, sublease, mortgage, encumber, or otherwise transfer all or any portion of the Premises or its interest in this Sublease without Carlsbad’s and County Airport’s prior written consent. Carlsbad sha consider any requested assignment in conformance with the terms of the Settlement Agreement. Carlsbad’s consent shall not be unreasonably withheld. County Airports shall consider any request for assignment in conformance with the terms of the Lease between County Airports and Carlsbad. Any attempted assignment or transfer on the part of Sublessee without Carlsbad’s and County Airports’ prior written consent shall b void and shall constitute a breach of this Sublease. Carlsbad’s and County Airports’ consent to any assignment or Sublease will not be effective until a document in writing is signed memorializing Carlsbad’s and County Airports’ approval and the assignee or sub-sub-lessee has assumed all of the obligations of Sublessee and has agreed to perform all of Sublessee’s obligations. Draft 5 - CoasUCarlsbad Sublease CITCAD7.324 Revised October 9,1997 6 -- 0 - - e-- *. M. Events of Default. The occurrence of any of the following shall constitute a default by Sublessee and a breach of this Sublease: 1. Failure on the part of Sublessee to perform any material aspect o this Sublease, including Exhibits A and B referred to in this Sublease. Failing or refusing to pay any rent or other monetary obligation in 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 otherwise take corrective action as to any matter upon the demand of Carlsbad. 2. 3. 4. N. Carlsbad’s Riqht and Remedies. Should Sublessee fail to perform its obligations under this Sublease, Carlsbad may exercise any of the following rights: I. The right of Carlsbad to terminate this Sublease and Sublessee’s right to possession of the Premises and to reenter the Premises, take possession thereof and remove all persons therefrom, following which Sublessee shall have no further claim thereon or hereunder. The right of Carlsbad without terminating this Sublease and Sublessee’s right to possession of the Premises, to reenter the Premises and occupy the whole or any part thereof for and on account of Sublessee and to collect any unpaid rents and other charges which have become payable, or which thereafter becomt payable. 2. 3. The right of Carlsbad, even though it may have reentered the Premises, to elect thereafter to terminate this Sublease and Sublessee’s right to possession of the Premises. Should Carlsbs re-enter the Premises, Carlsbad shall not be deemed to have terminated this Sublease and the liability of Sublessee to pay ren and other charges thereafter accruing, and Sublessee’s liability fc damages under any of the provisions of this Sublease shall Draft 5 - CoasVCadsbad Sublease CITCAD7.324 Revised October 9,1997 - 7 -- -