HomeMy WebLinkAbout2012-02-14; City Council; 20810; AMENDMENT SUBLEASE PALOMAR TRANSFER COAST WASTECITY OF CARLSBAD - AGENDA BILL 14
CONSENTING TO AN AMENDMENT OF THE
SUBLEASE BETWEEN PALOMAR TRANSFER
STATION, INC. AND COAST WASTE
MANAGEMENT, INC.
DEPT. DIRECTOR
CITY ATTORNEY
CITY MANAGER
RECOMMENDED ACTION:
Adopt Resolution No. 2012-035 consenting to an amendment of the sublease between
Palomar Transfer Station, Inc. ("PTS") and Coast Waste Management, Inc. ("CWM") for a portion of
the Palomar Transfer Station Facility ("Property").
ITEM EXPLANATION:
PTS entered into a long term lease with the County of San Diego for the Property in 1997. On
May 31, 2000, PTS subleased a portion of the Property to CWM for use as a trucking terminal
(Sublease). On June 1, 2002, PTS assigned the long term lease to the City of Carlsbad ("City") but
retained its interest in the Sublease. The City currently has an agreement ("Agreement") with PTS for
transfer station and disposal services of the City's solid waste at the Property. The Sublease is due to
expire on May 31, 2012, unless otherwise extended or amended. Currently, CWM operates its waste
hauling operations forthe City of Carlsbad from the subleased portion ofthe Property.
Section 2.02.E of the Agreement titled "Assignment of the PTS Lease" states that the Sublease shall
not be amended without the prior written consent of the City. CWM would like to continue operating its
waste hauling services for the City of Carlsbad from the subleased portion of the Property to coincide
with the new 10-year solid waste contract being negotiated between the City and CWM. As such, PTS
and CWM have reached an agreement to extend the Sublease to expire on May 31, 2022, and to
amend the terms to increase the monthly rent to $60,000 per month plus an annual inflator (Exhibit
"2"). In order to meet the requirements set forth in Section 2.02.E of the Agreement, staff is requesting
the City Council approve the attached resolution (Exhibit "1") consenting to an amendment of the
Sublease.
ENVIRONMENTAL IMPACT:
Pursuant to Public Resources Code section 21065, this action does not constitute a "project" within
the meaning of CEQA in that it has no potential to cause either a direct physical change in the
environment, or a reasonably foreseeable indirect physical change in the environment, and therefore
does not require environmental review.
FISCAL IMPACT:
There is not a direct fiscal impact to the city, however as the monthly rent will increase annually, these
increases will be passed through to residential and commercial customers via the solid waste hauler.
Coast Waste Management, Inc.
DEPARTMENT CONTACT: Craig Schmollinger 760-602-7502 craiq.schmollinaer(5)carlsbadca.qov
FOR CITY CLERKS USE ONLY 4 COUNCIL ACTION: APPROVED 4 CONTINUED TO DATE SPECIFIC •
DENIED 4 CONTINUED TO DATE UNKNOWN •
CONTINUED • RETURNED TO STAFF •
WITHDRAWN • OTHER-SEE MINUTES •
AMENDED •
Page 2
EXHIBITS:
1. Resolution No. 2012-035 consenting to an amendment of the sublease between
Palomar Transfer Station, Inc. and Coast Waste Management, Inc.
2. First Amendment to Sublease and Disposal Agreement (attachments on file at the City Clerk's
Office)
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RESOLUTION NO. 2012-035
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
3 CARLSBAD, CALIFORNIA, CONSENTING TO AN AMENDMENT
OF THE SUBLEASE AGREEMENT BETWEEN PALOMAR
4 TRANSFER STATION, INC. AND COAST WASTE
MANAGEMENT, INC. FOR A PORTION OF THE PALOMAR
5 TRANSFER STATION.
6 WHEREAS, the City of Carlsbad ("City") leases the Palomar Facility to Palomar Transfer
7 Station, Inc. ("PTS"); and
8 WHEREAS, PTS has a sublease with Coast Waste Management, Inc. (CWM) for use as
9 a trucking terminal ("Sublease"); and
10 WHEREAS, the City and PTS have an agreement for transfer station and disposal
"I'l services ("Agreement"); and
12 WHEREAS, neither party to the Agreement shall enter into any further sublease of the
13 Palomar Transfer Station without the prior written consent of the other party.
"•4 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
1^ Catifornia, as follows:
1 ^ 1. That the above recitations are true and correct.
1^ 2. That the City Council of the City of Carlsbad hereby provides written approval for
PTS to amend the Sublease, effective June 1, 2012 as set forth in Exhibit "2"
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 14th day of February 2012, by the following vote to wit:
AYES: Council Members Hall, Kulchin, Blackburn, Douglas, Packard.
NOES: None.
ABSENT: None.
MATT HALL, Mayor
ATTEST:
LOPRAINE M. WOOD, City Clerk
(SEAL)
FIRST AMENDMENT TO SUBLEASE
AND DISPOSAL AGREEMENT
This First .Amciuinieiit to Sublease and Disposal .Agreement i.s entered into and effective as of
Noveniber 1. 201 I (the -First Amendmeni"). by and between PALOMAR TR.ANSFER ST.'VTION,
INC.. a California corporation ("Palomar") and ALLIED WASTE INDUSTRIES, INC. ("AWl'")
and COAST WASTE MANAGEMENT. INC.. a California corporation, a Waste Management
comparty, and its affiliates (collectively, "WMl") for the purpose ol'aniending that certain Siiblease
and Disposal Agreement, dated May 31. 2000, entered nUo between Palomar, AWI..Coast and Waste
Management. Inc. (the "WMl Sublease"), a copv of which WMI Sttblease ts attached hereto as iixhibil
A.
RECITALS
A. Faloiintr. pursuant to the terms of lhat certain Sublease Agreement dated June 1. 2002
(the "Transfer Station Sublease") between Palomar and the City ofCarlsbad (the "City"), subleases
that certain real property located in the City ofCarlsbad. County of San Diego. Califomia identified as
San Diego County Assessor's Parcel Number 9?"0085-,A I and known as the Palomar facility (the
"Property"), which consists, among other things, of a solid waste transfer station, ofllce space, parking
and maintenance facilities, all as more particularly described in the Transfer Station Sublease, a copy
of which Transfer Station Lease is attached hereto as Exhibit B.
B. fhe Transfer Station Sublea.se is subject to the tenns and conditions of thai certam
Palomar Transfer Station lease Agreenient, dated October 31,1997 (the "Master Lease"), between the
County of San Diego and the City {by Assignment of Lease dated June I. 2002 between Palomar and
the City), a copy of which Master Lease is attached hereto as Exhibit C.
C. Palomar and WMI have entered into that certain Transport and Disposal Agreement,
dated of even date herewith,
f) Palomar and \W1 aie in the pioces^ of negotiating a lenevval ofthat certain .igieement
entitled " \gieemeni iot I laiisfei Station and Disposal SetMces between the ( ity oi ( ailsbad and
I'ali^nui! liansfei Station, lin. " ('( aitsbad D!^posal \giceinent") u nh the C ily of Cai isbad, and ( (>ast
IS ill the pioeess oi uegotMtini' a ienc\\<il ot lh,it» eit.iin .tgieemeni eiilitlcd "< onltaet loi the Punisinn
ot Solul Waste Seivn.es" ( '{ ailstiad C olkxtion Kgieenient") wtth the ( it\ of CaHsbad Both Paitics
belie\c m gond faith that both agieements will be appiuxeil ami execuled puoi lo June 1. 2012
\:.. Landlcsrd and Tenant are desirous of entering into this First .Amendment for the purpose
of extending the Term, providing Ibr an adjustment in the rental rate to be paid during the Fxtended
Tenn (as defined herein), and to modify the addresses for purposes of notice.
NOW fUl'RLFORL'. fbr good and valuable consideration, the receipt of which is heieby
acknowiedged. Landlord and fenant asiree as Ibllows:
5
AC;R.EEMEN:r
1. CONDITION FRi-CLDLNT:
llris I'lrsl Amendrnent is expressly conditioned upon, and shall be of no Ibrce and
effect, unless WMI and lite City ofCarlsbad enter into a renewal ofthe Carlsbad
Collection Agreement that becomes elTective on or before June 1, 2012 WMI tnay
waive this condition precedent, upon written notice to Palomar and AWI.
This First .Amendment is further expressly conditioned upon, and shall be of no force
and efTcci, unless both ofthe Ibllowing occur: (a) Palomar, AWT and the City of
Carlsbad etncr into a renewal ol'the Carlsbad Disposal Agreement; and (b) Palomar.
AWT and WMI enter into a "fransportation and Disposal Agreement" regarding the
delivery by WM I of certain San Diego County waste streams to Palomar and AWL as
more particularly described in that agreement, Ptilomar and AWI may waive this
condition precedent, upon wniten notice to WMI.
2. TLRM:
I he Term of tlte WM) Sublease shall be extended ibr a len (10) year period beginning
on June t. 2f(12 and runmng tln-ough and including May 31, 2022 provided the Transfer
Station Sublease and the Master Lease are still validly existing (the "Kxtended 'ferm").
at which time Tenant shall vacate the Premises in accordance with thc terms and
conditions of the WM! Sublease, as amended by this f irst Amendment. Fhe W.MI
Sublease shall expire on June 1, 2022 unless otherwise extended by written agreemeni
ofthe parties hereto, or their successors or assigns, and there sliall be no requirement of
any wntten nofice of termination to be provided by Palomar. ,'\WL Coast or WMI to
effect such termination upon tlie expiration ofthe Extended Term,
3. RLNT;
The base monthly rent, effective June 1, 2012. and continuing ibr each and every month
during the Fxtended Tenn, shall be the mm of Sixty Thousand and 00/100 Dollars
{S60.000,()0) (fbr an annual rent equal to Sc\ en 1 lundred Twenty Thousand and 00/100
($720,000.00)) due and payable in accordance with the terms ofthe WMI Sublease. The
Rent hereunder shall be subject to a percentage increase only based on the annual
increases iii collection rates applied by ihe City ofCarlsbad pursuant lo Slie C'arlsbad
Collection .Agreemem. However, under no circumsiances shall thc Rent hereunder be
decreased ifthe rate applied by ihe City ofCarlsbad pursu;mt lo the Carlsbad Collection
Agreenient decreases, railier in that case there shall be no adjustmcnl fbr the year in
wliicli there was no increase.
4. WMLS OBLIGATIONS:
Section 3. Ita). lines 12 and 13 ofthe WMI Sublease are amended to delete "WMI may
also deli ver additional amounts of Acceptable Waste, other than the Carlsbad
Acceptable Waste, from time to time, in amounts to be determined by WML"
LIT-S:
Section 5.1 ofthe WAU Sublease is deleted in its entirety and replaced with the
fbilowing:
For the acceptance, transportation and disposal by Palomar and AWi of .Acceptable
W'asle generated in or collected in the City ofCarlsbad and delivered to the Palomar
Transfer StalK.ni pursuant lo section 3.1, WMI. Coast and their aftiliates wil! pay PTS
the per ton fee established in the Carlsbad Agreement, as such fee is adjusted from time
to time pursuant to ihe terms ofthe Carlsbad Disposal .Agreemeni. as it may be
amended tVom time to time.
Sections .5.2 and 5.3 ofthe W'Ml Sublease are deleted in their entirely.
Section 5.5, lines 1 and 2 ofthe WMI Sublease are amended to delete "Seclion 5.3 and
5.4" and substilule "Seclion 5.1."
NOTICES:
Notwithstanding anything to the contrary in the WMI Sublease, specifically including
bui not limited to the provision of Section 10.7, the address for notices to Palomar and
.AWI shall be as fbllows:
ar AWT: Palomai 1 lanslcr Statum, Inc to f-'afomar
Attn: James 1, Ambroso. Vice President
With a copy io; Republic Services, Inc.
1X500 North Allied Way
Phoenix, .Arizona 85054
.Attn: General Counsel
If to WMi; Coast Waste Management, inc.
5960 Ll Camino Real
Carlsbad, CA 92108-0947
Attn: District Manager
With a copy to: Waste Management Westem (Ji-oup
7025 N. Scotlsdale Road
Suite 200
Scollsdale, AZ 85253
Attention: Group Legal Counsel
PRLSLRV ATION OF TERMS:
Lxcejit as modifieti herem. all tenns and ct)nditions of tiic WMI Sublease shall remain
in full tbrce and effect. Capittdized terms noi defined herein shall have the meaning
ascribed to tliem ni the WMI Sublease.
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Signetl. sealed anil delivered as ofthe date below each signature:
PALOMAR:
Bv:
Na^ie: Jtip*es T, .Ambioso. \ ice Picstdcnt
Date;"":'; 3,*=> -//
AWI:
By: .Allied Waste Indusincs. Inc.,
a Delaware corporation
(ienera! Partner
Nai(ie:^..'^y^f.^,f^^^ /f^.)^f»jx>
Date:
WAII: h
\\ /I
"^C" Jas^i Rose, ^arket .Area Vice President
Dule .^iX^f'Kk^X
CONSENT TO SUBLEASE
WHfiRliAS. THE COUNTY OF SAN DiHGO. hereinafter rclerred to as "Counly". has leased
a portion ofihe McClellan-Palomar .Airport (the "Property") to the City ofCarlsbad. a municipal
corporation, hereinafter referred to as "C ity", by that certain Palomar Transfer Station Lease
.Agreement, dated October 31. 1997 (the "Master Lease") (by /Vssignmcni of Lease dated June 1, 2002
between Palomar Transfer Station. Inc. ("Palomar") and the City); and
WLU-RI; AS, Palomar. pursuanl to the terms ofthat certain Sublease Agreement dated June 1.
2002 (the "Transfer Station Sublease") between Palomar and the Cily ofCarlsbad (the "City"),
.subleases the Properly that is the subject ofthe Master Lease;
WIIHRE.AS. Palomar, by the tenns ofthat certain Sublease and Disposal .Agreement, dated
,May 31, 2000, entered into between Palomar, Allied Waste Industries, Inc., Coast Waste Management.
Inc. ("Coast"), and Waste Management. Inc., subleases a portion ofthe Propeity to Coast and the
parlies thereto desire to extend the lease term ofthe Sublease and Disposal Agreement;
WH1:::RL/\S- the Master Lease requires the consent ofthe County and the Transfer Station
Sublease requires the consent ofthe City fbr any sublease ofthe Pi-operty. including the Sublease and
Disposal Agreement:
WJIERL.AS. fhe Board of Supervisors ofthe County of San Diego has aulhorized the Director
of Genera! Services, on behalf of the County lo consent to such sublease;
WllLRi:.AS, The City Council ofthe City ofCarlsbad has auth(H-ized , on
behalf of the City to consent to such sublease;
NOW, TIIFREFORL, County, acting through thc Director of (ieneral Serv ices, does hereby
consent lo said sublease and the .Master Lease, the tenns and conditions of said Master Lease shall
prevail.
COUNTY OF SAN DIEGO
By:
Name:
Title:
(City Consent SiLniaiiire Follows On Next Page]
NOW, THEREFORE, City, acting through l:he City Manager
consent to said sublease.
. does hereby
CITY OF CARLSBAD
Name: fyiatt Hall
Title; Mayor
EXHIBIT A
SUBLEASE AND DISPOSAL AGREEMENT
i^^e!i^20^!ZlnTAm!^tl^fTJ^ ("Agrt^ienO w made and «t«d into « of
B«n*, toe uut xIBUtMs (eolltctively, "WMTJ.
wiuehl« beaiitfovid JIolSS.— ^' "Le««a « copy of
itt«ri»l«. ^ » TucHnj xenmnil for tbe eollectioB of »lid w«te and tecydibS
to th. rnmafcr Stoti^TiS AmJJiSi^lir " ^ «»« ClQr of CH^bU. CdifciS.
'^•«Aiaadtfeaawtoit»Mpoit«addifl»o»eof«uch^vwtefbrWML
a. ^oM^FivfrffpmT
AP^c«t,ibtp,^cs^^^J^ covenants and ag««BB«, conialnod iVS,
TERM
EO 'ted 0 dOiiHlNIII Aiinasiiid-oi 66BSSIB ^39 i-^'i
(the -Tenn"); provided, however, lhat the panics may. upon munial agrwinuit«« A. , .
fv^tl?^''^' of th. Tenn, the obUjaiiona c??uble»,or to »nble«Towi^^J ^Tufi^^
SSo^f iss*« of SuW..se. to sublease the P«n,i.,. fron, Subl^J^^'^SSTf
WMI and Alhed to deUver and accept. t«pecti-«ly. Acepubl. Wuse (as defln«i in IIHS? ?f
shaM tenmnate; provided, however, thai all oUi„ right. obUBetiom of V^}^
shjl «^v. .he temnnation of*,, A,re«ncnt ^.d^conn'^?. untflT.'^aSfc^a^Cy" a^Sj^
I
2. SUBLEASE PROVISION
in^»wo»«*ww IB* i-wnjuea. The parties acknowledge, however, that the subleu. U ...rf.
c«bj« f «d « aubordinate to all the term. ««| conditi^ ofthe l^J^^t^S^^^^^,
negouate m good faith and eater into a aepamtc .„ble«e th« iaco^or.^ to^^
pcnni».ibl« under tho Lftas., the folIoTdaj tein« and condition, and^S?tneo««l.^
t«nu «f Erfubit F to the Lease (McClellMi.palomar Aiipon: Th. CounV«f^;^i
515 000 p« m.»a^ in «lv«»»«, lhMb».*.^f tol. month
=ount.«l«m, existeneVof . dSStTS
WHtiTI. Sublessor shall maintain all nace^mrv etm^iA^ ... .-^ .
by sublessor. Sublusor shaD nav !dl «1« JL!T^^ t " ^ -nd evidence of payment
ptope^ taiS^SSLS^Vowt^iS ^Lf^^S^T^^^^If; r'*^* «y ne^or inercaaod
S»ible«f*s prior >mtSi«!^?l,SL^*^^ ffaosfer or eaemnber the Premi«« without
rhal WMI r^yZ^SsiZ;:^^'^'^,^' ^l^'^''^ unre«o«a,ly. p^vlded how^i^
O' ™* IO an sflUiate without the eoBfHit of SublMior or AlUwL
CB'd 2T2T26T6iCITS988 Oi 666S 9t6 EM t« OlfcftD SkCwsB-^^ad
n fed 0 dOiiHXNiM A)in6siiid-oi imm Z03 i-'-'v^'i ""Wia lo-sZ'UBr p*Ai*9i)i
ShaU iclL J^Si^^^^"^^ « t«nns of the attached Uas.
-«t,lV oSS^JS::,'"*^ P-"^ vehicle..
with *e'L«^SSSSSS?& ^" « « conzpjlanc.
take no action that ^ut^^l^ll^J^.L'^li^ "v«n«»t. that*^|t wS
for the Peimined Uses Sublessee * qu.et «.d p..e..bl. ettfoyaeni ofthe Preouae,
. L EnCHinbr^nsct Sublessor shall DOT oledee or enenin>.i.r »»..-- A
ngbt or interest in th. Premise, or nny t,f f^ iZVtll^LZW^^^^ ABr.enjeM. or any
interfere with Sublessee's Qviet \^ f.!r^ "^l"^.^
sublease, and ary pledge :r'«^;^:;7Sl „^^^ «h. te™ of this
to Suble..e..s H^ht orp
.hall not b. ^^^Z^^ShM^J'^^ written coo,«t ef SoMeMor. which
525.000 In cost. ^ "^"^ « i»prov«n««. of li4s tbtt
WMI shall have Ae ri,h?^to t«SLt ^ A •"^l""* Permitted ufes. notice to SublewcT A«r.«.ent without penalty upp„ go
3. mil's OBLIGATIONS
coUeedon a«Ktoh!St«f»«meBi wilh the CUv of r-rfA^IJrv ^ ^^f^ aoBd wast*
the aty «'CariS^c3SS.X xSSjiSSSl^^ Acreemcw") fhmi «wJin
esdmatea the «netait of Acccptile vS?t« ^7^^!^. ^ ^elusive basis. WMI
.p-.^^- rffttlM-lri^llli I • dehvered, based on « 5.3^ worfc Week, to b.
with the teStion or «piS^tii^':?5^'ctb^^^ '^'^ « concurrently
should the aty of Carlsbii reft«. to .t,5l^ !j if^*^"^^ about, or (ii)
«cfcis.its"flowcontmrri«hu^ dSJt^J^ X .!^ w^^/^^ ^""^^ by AlUed.
the Transfer Stadon Tu," i?p^«JlE|S!^^S''^!? Acc^^lable W.«eto afacilijothJft^
-n.on^ and di^sin, auch^ertahTSStf^-^^^^ -^.^^
ntxrt/sccL&r/ioooaMMum\92
t:«t«t6«t,S9e0 ox 666S 9T6 « Slb» a«4^ ^ ^,e, =0 NOT
SQ •scd 0 donHiMiM Asnasnid-oi
Section 5.1, subja«t te adjusimeat w provided in Section S. No action by th. City ofCarlsbad
which prevents or iinuts ihe deUvety ofCarlsbad Acceptable Waste to the Transfer Station or a
disposal fkeility selected by Allied shall constinne a hnaeh of diis Agreement on the part of
WMI. limit the terjn of this Agreement, or affect any of tha terms and conditions ofthe Sublease
pnvided in Section 2.
(b) WMI shall arrange, be reapeiuible fior, and bev the costs of delivving
Acceptable Waste to Allied at die Transfer Station. WMI shall oisure Out kll waste it deliveve te
Allied is Acceptable Waste. WVQ shall dcUver the Acceptable Wast, durias the Tnou&r
Sutlon's nonnai houn efopentioA. il ,'l
(e) Allied chiUl .t all times maistain pennitted capacity and epctst. the
Transfer Station in a manner so ea ta allow the prompt receipt of the Carlsbad Acceptable Waste
when and as delivered by WML VV^th respect to all Acceptable Waste delivwml by WML AIUKI
shall opnatc the Transfer Stetien in a manner such that the truck tutMretmd times si\m» he
minimized^ and in no event exceed flAeen (IS) minutes.
(d) WMI shall defend, indetnni^ and hold harmless Allied with respect to aay
notices of violation or othtf dtaa'ons related to WMI's eeeupancy end operation of the inmxftr
station, and will take reasonable corrective sedan in roepensc ihnetO'.ptinr to the ttansfbr ef
eeeopaBcy te Allied.
3-2 COmnosirilDp af Weat* Am^mA ;« thU Agreement^ "AeegprnhV W..r»'> -ij
sarbage, reftisa, ruhbish and other meteriala and substances iliscartied of rejected aa being spent,
useless, worthless, or in excess to the evyncn at the time ef such discard or r<iaeelion and which
are normaUy disposed of. ar colleeted &am residential (sin(le fkmily or maltx-femily),
cotnmczrial. industrial. Kovermnental and insdnidonal establishments, and whieh az. acceptable
for disposal st Class Ul landfills in California.
3-3 Deffnirion of Unaipcifpffble Waa^,
Waste" if: Waste shall be considered "Utucceptable
<a) it fuls to comply with the requiremmis of Section 3 Jt;
(b) it can now or hereafter be defined by any applicable fedonl, sUM or local
^SS^SS^^S^™*^ «««IatfoB^eid«vj«ifmen»; ptnnit or Jicens. relaiin«eo th.
^f"^^^^^^^^ *^^ '^f>«*'^'m of the IVensftr Statiqft or Iho tnasportatiaii. rMo^t.
MNiijnini'rW dUrikHd of waste materials CAnpUuble Laur) as'a haxardous wast*, a hazardous
substwcc or haaardous material, or if it is detennined by any sovcnunental agesey or unit
having or clajminf appropriate jurisdiedea to be harmfhl, toxic or daagvoue, or odierfvise
ineligible for disposal at AlUod'e disposal fariUiy; provided, heviwer. that Aceeptable Waste
may include de minimia amonou of hazardous substances commonly found in waste gesoated
*mn residences and eommerdaj premises that may be disposed of in Qas« m landfills is
'•KXAvsoeLEsr/i0ocM>4j^i im.ttt
Se-d eTZTZ6T6^£lTSSQe Qi AMe err
90 •ted a mm\k Asnssnid-oi itmt zo9 i-wji ^tsuo io-sMi«r P«A!»D»JI
pathological w2;e. b!o4ea1'^S!e^^^ "««iv. niaterids
n,«cri.l. asbc. foundry s^jj S^g .^Tc::^; sl d«'"^ *T J^*'*^-
human and animal remains motor veWei« • * "fl =wspool and other human wasie.
r-r ends, springs. ^d«. baTeri2 tn^'r^^^^^
agricultural and £mn mi^enT .^*. *^ ^ ^^^^ ««« «asoline lai^rt
major pans thereof InvTt^::T;J.':L\^^^^ ^-J**' P«»
marine vessels »r,A
sotid metallic objeetT such « c'.!.^! ''.^ "**=*^«'y or equipment, including thick wajVed^
insulation, closed meVcStXeTSSl/^iSSet « *fJ»on dnxms, aei^to^
plastic, Iar,e mil, of ca».t er ^l^T^ iV^^T^^^^^ blocks cf .^bb.^
cabJns or slings. L Sed ^coldt^'S "^'"^
procedure at its diepeaal faeiHrio tr..\hL ' accordmg to AUiad*. normal opcxadnc
goods such as '.^S^totTnoJj.J^V^ «J4^J
liquid waste, fncludiag liquid cheScV w«2 sil^iJj
materials or substancS and those m L^^^^T *^ «nd other highly diluted water-camS
^.hin th. -«Un. Ofthe AttlTfiS'erljr^fjS,-^^^ - by-product materii;
«,der then appSlble 1^^ X^ero^^T^ltT^^ ^^tlt ^ ~
pubUe health i^safetif w^X^S^f'*"?^ ^^'"^ P'^"" » substantial endangermeta te
violated by theno^L%::SlVo*M"t^^^^^^ st«u,ir?b':
coxnposirion cannot be di»os«d of .VASTJ-. "'^ because of hs sia.. durabiUty or
otherwise advereely affee^S. I *^'^*'«» « has a reasonable poswbiliS^ of
normal usage expZ^t^ fSST ot2Se\^
dispose^;? -nylSS^^^i?^,.^'^5^,?''obligation on AlUed to accept or
Jject deuvery of «,y ^te off^ forl^'^^Jby ^ f "
Waste. Allied nuiy rciecL in «/>i«il r . ^MI whieh does not constinite AcceotahU
dehvery vehicle i^Sin ^ .^JdSLr"^^^
A,l/«lendt«n^„5,orthS;^p2ro'/^;^^^^ Un.cc.pt.hle Waste rejecS^b;
to AJlI^'t xhir^^^i^i/^'*^' ^ by WML at it, exo««^
which shaa bn;lu^rut^JSVlS'i't""^
Applicable Uws. Such veSde. ahSS, ^'fP^'^^ "nvIyinT^ S
idenn-flcation PmcedSt'^t! TrSi^J^^^r s^J^ tS
«t»WICOtEST/HX»«4^,
£snoifiLsndJJsEasta» WMI *haU ac «ii times maintais in ftiil fane
pemuts. licenses and approvals neeeswo' w deliver w«te tTSSS Wvif^if^
deliver waste in compliance with aU AppU^abULaiJ ,
4. ALLIED'S OBLIGATIONS
^f^*"" '"^Ifflgn Prmrifrt, Allied or its desiene. shall be reeponMble tbr ri.-
Ju^3oS JSS"** mainte„«ace of improvement. afSx. Tr^t^^^^^oT
June ».200a AJhedacc.pt. the trmsferofthc right to occupy th.T,«»ifer5tati.«r
Tt«"»?»lTTiyni Alb'ed shaU pmvide suitable tnB«>nmw«>
nnT ^S""'* "^"^ by wiSto'AiilS.^'Se^ii SSTISS tTSS
ttid 3.5. Allied agrees to ace^t aU AixeptabJ. Waate tiered to it ^ »«1
a^^:^^^'!^'' AcceptableVaste to a .^^S'CSn^^.;^^,
Acceptabfe wS^d\?^VnSS„l^^ * dispoe.-of .1, Waste. AUied shall be solel^ ^^l^Jw/^'f' "P**'^* of accepting ft. Aee«iubfc
Applicable Laws. "o owpose of Aec.pt.hle Wast, in material complianee wifli .U
5;- COWPENSATTON FOR DISPOSAL S^^T^T^ '
Allied f fee P^on^of X:.^3r^:f « ;« fl'^ Jj! Agreement. WMI shall p.y a,
awisjwnation and disposal unZ^!! A '° « Tr«»s|«r Station for
rfteiSWttidr ftjSe teZ?^.^ Agreement (the "Disposal T^-) l««?f S
than W^thatiJnot ^i^J^Tm^-^^ If late charged by AUiXo ^ cuSr'/^2
Imposed tipon the handliBTf^J^ • «Ji taxes charees nr fr^
EffectiveD«° «««^mco„ and disposal of Acceptable W^in^^^S onIS •
D
^«-d eT?T26t6^tTS98« CU 666S 3t« CB9 Ptt OI«W BatXar^ or,oT *. ....
"•'^•^^'U'y^^^'S^^Jj^^^""'^^ munuuy .p.«,u p„,i^.„
•pceoiena <num| j^, ky Z^TSiT r"..S*" •*«•" <in>. lo lim. J^L"*^*
chai^«(he»«undftron'!^»,ft'^fcK*'v*^^ transmit an iteaia«l invoice to wiuix •.
mtetwt at a mte of the less«Tr ,2^ «»y amount remainin. J^JA^^^^
nttvwtomjum ooosu-s/i «3Tf.|«
aTet26t66CTXS98a Oi 666S 316 2t»
80 sBtd 0 donHium Asnesnid-ei "«91B ZO9 i-'w'i
Ko ftightt of $y?-ql£ The obligaeicns of WMI to make payments hereunder shall
not be subject to any setoff abatement, count««Wt». existence of i di«,ute or ^v7J^
kno«^ or unknown, foreseeable or unforeseeable, which might otherwise wnstioitT. iS^r
equitable defense or discharge ofthe liabrjtie. of WMI hereunder or limit recourse to WMI.
«. TITLE AND RISK OJr LOSS
, , AWCP»frk W.wln, In the case of Accepta^ble Wast. delivet«d to AUicd at the
Transfer Station, all dtl.. risk of lea. and all othv incidents of ownership of Aeecpuble WaTO
Shall transfer fiom WMI end vest in Allied upon the Acceptable Waste being aee^d by AllS
at Che Transfer Stanon.
yflf^^^frk Wgag> Title, risk of loss and .11 other incidents of ownershii» of Unacceptable Waste and my rejected Accepuble Waste shall at no time be transferred to AlKed. and shall at all ome remain in "WML 'ww.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS
"^•^ Allied Representations and W.5T"i^i Allied represents and Warrants to WMI
that.
(e) it is. or wlU be prior to providing service under this AereemcnL in material
comphance with all AppUc^Ie Laws affecti^Tthe^ces to be pmvided K^JTS S«
perfonn such servtees urfag industty accepted pranices; and « oy ,i, ana that it wjU
Laws. observe and comply, lo all material respects, with all Applicable
^ "^'g Rft^rr^CrtsrioM end Wmwi<«. WMI represents and w«nmts to Allied
to perfonn iu oSgatitJis^fe^ir" ^"'^
authorized by aJiecesX'-S'^i^iJjSof^^ ^
meterial complice. J^t^mJ^^u^'^r' P^«^J»» obligarion* under this Ag,cem«t. in.
itwillper^s^ehsrr^cSXlSS^ijrc^-^^^^
P>0(/WlCCl£ST/iQaaa4j/ii}T».i«a g
01 «td 0 dOJiHiNii Asnasnid-oi seessie i^i i-aojd mvn mi-m P'AIISII
Laws; and ""'•^^ ""'P^y- ^« material respects, with .U AppifcaWe
such Acceptah/e'U J'o^iS^." "^"^^ ^"^^^^^ P^-cion or title to
T*'"'-'^" '^'^S^^S^S^f^^ to^ '"•""'^ ^-^^ «o Alh-ad any thereof; pneient or may ZuZ a ISLr^J^f ««»«iwents or eompon^
diselosed prior to loitoTS ie^L^tirwi:*** * *-r^»«i=«t whfcn^^ tnuuip««arion««ldl,po,S. Acceptable Waste en Allied uaJi.,, or containen fer
«. D«PEMNIflCAT20N ' '
^« ^^bsidiSS'S^^Sfei^ . ^r^^^fy «d hoM harmless Allied
Alb-ed Indemnified CSS^? tSt,^J or death of any p-ron..lJcl«dh,g
undertaking he»ia of VwS (a^ti i \ v ^** "y ^ eovwiant. agreemSt or
clami or lose of or damaee to om»««l -IJ^^ • ' ™ «*paiaea, arising out of any
WMI Indcmnmed PSS. ^tSSTbT^thlTr^h "r"^ P«ans.lJeludii «J
undertakins herein of Affiri (^ A.-^ Zl ""^ «v«naw. agr««nitT
hereunderJorCiijbytLli^gCt^.^^lil'S^n?^^^^^ ^'-'^ of i^^^SSo^J
^WVUNATION AND REMEDIES
9.\ X2B&11IL
-default biCAlu^iS^^J^^^ E-l* ftUowfa, snau be an ev«nt of
si^emenr cootained Sethis i^el,^ o" t'ti: t'^T^ «ny material term, covenant or
faiJur. for . period of 30 days S.r^t^«"'l!^ i.rt,*'"^.**' contiouanee of such
and f^c^ it be remSied^V^ '^'^ spcci^g the n«ur« of «eh &iltt«
rHXnvs6eusT/iOBc«i4j/|
01-J aT2T26T6iCTTS?Wa OA 666S 9t6 209 « EII«4D SyoOsMSd AC^BT SB. SB
U md 0 dOJlHlNIM A»n8S11ld-0i 8869918 Z09 l-w^i mVLi IO-S2-u«r P«A!t3«j|
proceeding ^U^gTr^^^^^t^^ '"'^^^^^^^^
dissohaion or liquidation ^t o, !^^' '^/^'^^^^ *nangem.St S*u!S^*"?'
cr if there *haljlave be« ffliS i J^^ of «,y Jurisdiction whethi neS or "'^'^'bt.
which x«n.iM uiSis^tSrs^ f^,^^S'V,r;*^««. i» ^^•«* «o,S^ f^^ufir
to. approval of ox act,ui«c J« L'SJt,:! pe^Z"' ^
or rhe appointment of any eurtoS-T^^ • ^^'^'^ apphcation or pioceedina or oSi- v^
property or «,ff«. su.H.StSo^^/'^fL'"'' '^^^^fbe^^SroiTS^f
period of 60 day, or mo,.^ '^^^^"'MP or n«ste«hip to coSnu. SSjJS fc?
by WMI under Ss A^!^^"^"^^^
Each of the following shall be an event of r
a petttien in banbimtcy"! aJIS?' I^*" * S«n«nil assignment for the benefit «r
for any custotStjSj? msohrent or baniSmt PieSion?of eredito».
dissolution or UauSJJ! u ''«^*y. fwrganiaation. manaem^?*^; "«™a«now *ny
which remains -n.ii^'^.tliTf^r^'^' « « "^^SS^Jjiff^
to, approval of or -e^uicscen^ f/ ^ *«"• or if by aavartf B^.V f o'
or Ae •PPomt^eot S^'SSLS *»y «cb paridon. applieanon o^^JSLSn^t oM
property or suflfera su^l^^^^'^^^V t~stee for iiZ^y^bZ^f '^'^
period of do d.yao.„o„.'"^«^P-'*e«ver.hip or trusteeship to S^^^.'S jUt
andbecontim^,.^5;gSg^
«eps the effect of wi£h ^ISl''^*^ ^"^^ «S pi^^lf/:?^ J eunrf prfor
reasonable period oft^ ««ble AlL'od to can.'^ri%^o?^eS ^Sf^
10
tT-d eTeteat6^xII£^eB oi sees ?BO « r„w^ ^
u Q immh Asnasnid-oi 8B8S916 209 MoJd mvio la-n-m ptAtMtu
to the cxpiratioo of such ^o^>«/ -Z7 ! •««'»*«»wit unless Oie .vest of de&uti f. •
i«~<»aM.)ioiodaiinM;TO) ™° * •»«« of tok^ ^S^^,
s^o^fiird?"-^-"^^^^^ ^ ^--^
foucAhiu2Xp;«^:s;\o"c;::oTi!^^ - -^-^^ ^^^'^^^^v^ii^^
to any othar rights ^^Zilth^!^ "^.T *^*"«,-y. ^taSSih^
and all addanonal handling, tnmspomtii;^ jg^^^^/'' «.mb«r,ed lh,m AlliS any
10. MISCELLANEOUS
r^^'^^^'^yp^^^^^ « for rent and servica.
of: (iJ an oeeuirence be^ad the^Slen^u '^^^ by a party in th^iv^
ability of the p«y Sfo'SSi Sli^ijTo'"^ 7'*^'=?' «JvS?y*".£'orS: any governmental order oermfr f.k ***^o« or to comply wjih the r«aui«»,«-^ *
of any federal, state or loeal court ^d^J^H or (iir*) oide* «»d/or JudiMir^
if not the Ksult of viUfid or^.^u^^""'*^* °' fiovemmentii bedro/LC^??^
accordance with ^J^^:::^^^Z:'.^' P«y relying tCln or'^iS^S S^'
party of any such *>rA^ MTJ^* S^t^ howevw. that the eeateeting in goodSitti bv^,i?
wiJiiblorneghgant.ctionrrtX^f'SU^r "'"''^ " to'^nSl
aenon. ^-cSd^S^fe^^ «y acdon. or omit to tak,
pemut d,. Transfer^lSo? orli'aS^^ cJlsJL'StX^^
howevw^, thar WM2 shall have .»l!f^ . ecndiboaal use permit relatine th«*I«. -
wi^a usi orS^SJ'J?J2l'^ '••^^vef, a« BO issignmrat^S^rl^t',!::^:!*'*"
a— rcspecove succwson and
agrtenwfcll oC'TlIT'SL ^ Agreement (including the Leased « ,
AgreementmS^^h:^"^;,^* '^-t to th. object ^'^^''^^
"^^*'y*^°«"^«^'«i»nedbybothpOTef£S;*^
rM»wBe«iST/j«wtt«j[/,„„.,„
£1 md 0 6mim A«n8$nid-oi teesgis Z99 »«w-iB lo-si-uef psAiist^
^ 5«ycaJUiaSL in the event m-.
to one Jf ^e pSS^y'^r "Sf"^ "^"^ informadon or other document V' ^
r«dpr as p.„ of the sc^c^^j!^^'* '--i" -^S^^^Jc^vid^^
If to Allied;
With copy te:
Karen McConn.U,£,o.
pj?^^-^ Avome, Suite 2600 ^aocnos. Angona 85012 Faeahnile: (602)51^.3307
If to WMI:
"o"»yn. Tocas 77002
J^«rf«il.; (713)209.Si??r
With eopy to;
7^5rj^r*«'**'**-'^"«*«8«»n
ci'd steieste^xnwsB
n md fl dOBHlNIM AHn«nU-fll B88S919 209 "'W-IB lO-Sl-^f P«A!S3ij|
accordaic;'wirb^T^*J'*f's,^^^^ «hal] be governed by «rf construed in
attesting to thc^Sisiei^of STfdlo'Sl *f "P*« «*ecuticn. certtfic«e. the tema of this Agreement; '^"""^ iar«,ane«. to maintain the folloydng insmanSdSS
Coverage , '
Littifrs «f^.ff|rf|ftY
Workmen's Coa«,eosation g^.^^^^ ' I
Etnployer's Liability
Sl.OQO.OQa Each Oeeutreacc
Gemu'al liabih'ty, Zncludin.
Bodify Injury, ?rope,t)^DSiage Combined Single Limit,
And Centnwnwl Liability E*ch Oeeu«tw»c«
Automobile LlabUiry Includin*
Bodilylni„^„dPrJp,^I52L,e EISS^^S"^'^ ^imi^
to notiiy the p^sJty t^^hom^^^Tj^. "f.** °bli,.den
canceliadon of any policy cov^Ti^d^ ^ ^
subrogation. ">ar»unijer. TTie policy shall also contain a wLvcr of
f SICSNATORES APPEAR ON NEXT PAGE]
P>CVWE00I.EST/1000O4.a/M3„.,„
7fd CteT26t64CttS98e 01 666S STS 209 tm SIMO 3»«M>*«d t« atJOI «. 2B MTf
51 tied 0 dmim A»n8snid-oi eses9i8 109
flU-IG) LSWTE M3R7H »TER|c
r-t
IN WUNESfl WHEREOF tk. »«f« v y«ar £»( «rt„^ tt. pwfc, executed dd, A^««ot
«* of lh. day aad
'•^•'JTtJia 14
91 md a dOilHiNlM ASnSSnid-Oi 8B8S91B Z09 l-wii nf%'.iti |0-82-u«f ptAnatji
OS/02/ZOOO 14:30 F.'VZ 212 90B «aia K>^.».
TS WITNESS WHEREOF, the parties have executed tlds Agreement as ofthe day and
year fit«t above writtn.
ALXXCD:
Allied We«ta laduatriec, Ine.
By.
SUBIXSSOR:
ralemarTransfrr Station, Lie.
•y.
Its.
WMI:
Waste Manaeemcnt Inc.
SUBLE&SES: 'fcenwy
Coast Waste Managemm^
rnXAreaOLasmMe»M^i ure.tra 14
•* TOT«, FPm.es
1 EXHIBIT C
2 SUBLEASE AGREEMENT FOR PALOMAR TRANSFER STATION
3 BETWEEN THE CITY AND THE CONTRACTOR
70017373V1
EXHIBIT B
SUBLEASE AGREEMENT
FOR PALOMAR TRANSFER STATION
1. Parties. This Sublease Agreement ("Sublease" or "Agreement") is entered into
as of June 1,2002 by and between The City of Carlsbad, a municipal corporation of the State of
Califomia ("Sublessor"), and Palomar Transfer Station, Inc., a Califomia corporation
("Sublessee,") as a sublease under a certain Palomar Transfer Station Lease Agreement, APN #
97-0085-Al, with County of San Diego, dated October 31, 1997 (the "Master Lease").
Sublessor (as successor-in-interest by assigiunent ofthe Master Lease from Sublessee) is Lessee
and the County of San Diego is Lessor under said Master Lease (hereinafter "Master Lessor" or
the "County"). Capitalized terms not otherwise defined herein shall have the meanings given in
the Transfer Station Agreement (defined below).
2. Premises.
a. Lease of Premises. Sublessor leases to Sublessee and Sublessee hires the
following described premises (the "Premises") together with all appurtenances thereto, situated
in the Coimty of San Diego, State of Califomia and more particularly described as follows:
The real property commonly known as San Diego County Assessor's
Parcel Number 97-0085A1 as more particularly described and depicted on
the attached Exhibit A. comprising ttie entirety ofthe premises subject to
the Master Lease.
b. Condition of Premises. Sublessor shall assign to Sublessee all of
Sublessor's rights and remedies against and with respect to any prior tenant, subtenant or
occupant (collectively, a "Prior Tenant") of the Premises, to the extent such Prior Tenant is, or
may be, liable or otherwise responsible for, by act or omission, (i) any failure of the Premises to
comply with applicable law or regulation, including, without limitation, any conditional use
permit applicable to the use of the Premises as a refuse and waste transfer station, or (ii) any
material defect, latent or patent, in the Premises, in each case as of the commencement of the
term of this Sublease, Sublessor shall execute and deliver to Sublessee such additional
instruments and documentation, including assignments of claims and rights, as may be
reasonably required by Sublessee in order to effect the assignment of rights and remedies
contemplated hereunder.
3. Term. The term of this Sublease shall commence on Jime 1,2002 for a period of
time equal to the PTS Operating Period, provided the CTS Operating Period has not commenced,
as each such term is detmea m, andTubjetl td all the leftttS and proviSons of, that certain
Agreement for Transfer and Disposal Services, of even date herewith, by and between Sublessor
and Sublessee (the "Transfer Station Agreement"); provided, however, for avoidance of doubt,
the term of this Sublease shall continue for such period of time as Sublessee is permitted to
occupy the Premises as contemplated under the Transfer Station Agreement and shall be for a
term of not less than ten (10) years; provided further, that the term of this Sublease shall in no
event exceed the expiration of the Master Lease.
70017H3v2
4. Rental. Sublessee shdl pay to Sublessor as monthly rent for the Premises, in
advance on the first day of each calendar month ofthe term of this Sublease without deduction,
offset, prior notice or demand, m lawful money of the United States, the sum of One Dollar
($1.00). Ifthe commencement date is not the first day ofthe month, or ifthe Sublease
termination date is not the last day ofthe month, a prorated month installment shall be paid at the
then current rate for the fractional month during which the Sublease commences and/or
terminates. Receipt of $ 1.00 is hereby acknowledged for rental for the first month.
5. Use. Sublessee shall use the Premises for operation of a refuse and waste transfer
station and any other uses permitted under the Master Lease, and, if applicable, in compliance
with the terms and conditions ofthe conditional use permit issued by Sublessor for the Premises,
and for no other purposes without the prior written consent of Sublessor. Sublessee's business
shall be established and conducted throughout the term hereof m a first class manner.
6. Indemnification. Sublessee shall indenmify and save harmless the County and
Sublessor, as applicable, and their respective officers, agents, and employees fiom and against
any and all claims, demands, liabilities, or loss of any kind or nature which the County and
Sublessor, as applicable, and their respective officers, agents, or employees may sustain or incur,
or which may be imposed upon them or any of them for injury to, or death or, persons or damage
to property, as a result of, arising out of, or in any manner connected with this Sublease or with
occupancy and use ofthe Premises by Sublessee, its officers, agents, employees, licensees,
patrons or visitors except as attributable to an act or omission ofthe County or Sublessor, as
applicable. Sublessee fiirther agrees to pay any and all costs and expenses, including, but not
limited to, court costs and reasonable attomeys' fees, incurred by the County or Sublessor, as
applicable, on accoimt of any such claims, demands, or liabilities.
7- Provisions Constituting Suhletma This Sublease is subject to all ofthe terms and
conditions ofthe Master Lease. Sublessee shall assume and perform the obligations of Sublessor
and Lessee m said Master Lease, to the extent said terms and conditions are appUcable to the
Premises subleased pursuant to this Sublease. Sublessee shall not commit or permit to be
committed on the Premises any act or omission which shall violate any term or condition ofthe
Master Lease. In the event of the termination of Sublessor's interest as Lessee under the Master
Lease for any reason, then, except as otherwise consented to by the County, this Sublease shall
terminate concurrenUy therewith without any liability of Sublessor (except to the extent such
termination is due to Sublessor's default under the Master Lease not arising &om Sublessee's
failure to perform under this Sublease) and the County to Sublessee. Sublessee hereby
acknowledges and agrees that Sublessee waives all rights to any form of relocation assistance
provided for by local. State, or Federal law that Sublessee may be entitled to by reason of this
Sublease.
8- Federal Aviation Administration Requirements In the event there is any conflict
between the provisions in this clause and the other provisions in this Sublease, the provisions in
this clause shall take precedence.
a. Sublessee, for itself, its heirs, personal representatives, successors in
interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a
covenant running with the land that in the event facilities are constructed, maintained, or
700l7n3v2
otherwise operated on the said property described in this Sublease for a purpose for which a
DOT (Department of Transportation) program or activity is extended or for another ptirpose
involving the provision of similar services or benefits. Sublessee shall maintain and operate such
facilities and services in compliance with all other requirements imposed pursuant to Titie 49,
Code of Federal Regulations, DOT, Subtitie A, Office of tiie Secretary, Part 21,
Nondiscrimination in Federally-Assisted Programs of the Department of Transportation-
Efifectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be
amended.
b. Sublessee, for itself, its personal representatives, successors in interest,
and assigns, as a part ofthe consideration hereof, does hereby covenant and agree as a covenant
running with the land that: (1) no person on the grounds of race, color, or national origin shall be
excluded from participation in, denied the benefits of, or be otherwise subjected to
discrimination in the use of said facilities, (2) that in the construction of any improvements on,
over, or under such land and the fumishing of services thereon, no person on the grounds of race,
color, or national origin shall be excluded firom participation in, denied the benefits of, or
otherwise be subject to discrimination, (3) that Sublessee shall use the Premises in compliance
with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations,
Department of Transportation, Subtitie A, Office of the Secretary, Part 21, Nondiscrimination in
Federally-Assisted Programs of the Department of Transportation-Effectuation of Titie VI of the
Civil Rights Act of 1964, and as said Regulations may be amended.
c. That in the event of breach of any of the above nondiscrimination
covenants. Sublessor shall have the right to terminate this Sublease and to re-enter and repossess
said land and the facilities thereon, and hold the same as if said Sublease had never been made or
issued. This provision does not become effective until the procedures of 49 CFR Part 21 are
followed and completed including expkation of appeal rights.
d. Sublessee shall fumish its accommodations and/or services on a fair, equal
and not imjustly discriminatory basis to ali users thereof and it shall charge fair, reasonable and
not unjustly discriminatory prices for each unit or service; PROVIDED, THAT Sublessee may
be allowed to make reasonable and nondiscriminatory discoimts, rebates or other sunilar type of
price reductions to voltmie purchasers.
e. Non-compliance with provision (d) above shall constitute a material
breach thereof and in the event of such non-compliance Sublessor shall have the right to
terminate this Sublease and the estate hereby created without liability therefore, or at the election
of Sublessor, the County or the United States, any or all said entities shall have the right to
judicially enforce said provisions.
{. Sublessee agrees that it shall insert the above five (5) provisions in any
sub-sublease, contract or agreement by which said Sublessee grants a right or privilege to any
person, firm or corporation to render accommodations and/or services to the public on the
Premises herein subleased.
g. Sublessee assures that it will undertake an affirmative action program as
required by 14 CFR Part 152, Subpart E, to insure that no person shall, on the grounds of race.
70017U3v2
creed, color, natioiial origin, or sex be excluded firom participating in any employment activities
covered in 14 CFR Part 152, Subpart E. Sublessee assures that no person shall be excluded on
these grounds from participating in or receiving the services or benefits of any program or
activity covered by this subpart. Sublessee assures that it will require that its covered
suborganizations provide assurances to Sublessee that they similarly will undertake affirmative
action programs and that they will require assurance from their suborganizations, as required by
14 CFR Part 152, Subpart E, to tiie same effort.
h. The County reserves the right to further develop or improve the landing
area of the Airport (as defined in the Master Lease) as it sees fit, regardless ofthe desires or view
of Sublessee, and without interference or hindrance.
i. The Coimty reserves tiie right, but shall not be obligated to Sublessee, to
maintain and keep in repair tiie landing area of the Airport and all publicly owned facilities ofthe
Airport, together witii tiie right to direct and conti-ol all activities of Sublessee in tiiis regard.
j. This Sublease shall be subordinate to the provisions and requu-ements of
any existing or future agreement between the County and tiie United States, relative to tfie
development, operation or maintenance of the Airport.
k. There is hereby reserved to the Coimty, its successors and assigns, for the
use and benefit of tiie public, a right of flight for tfie passage of aircraft in tfie airspace above tfie
surface of the Premises herein subleased. This public right of flight shall include tiie right to
cause in said airspace any noise inherent in the operation of any aircraft used for navigation or
flight tiirough tfie said airspace or landing at, taking off from or operation on the Airport.
1. Sublessee agrees to comply with the notification and review requirements
covered in Part 77 ofthe Federal Aviation Regulations in the event future construction of a
building is planned for the subleased Premises, or in the event of any planned modification or
alteration of any present or future building or structure situated on tiie subleased Premises.
m. Sublessee by accepting this expressly agrees for itself, its successors and
assigns that it will not erect nor permit tiie erection of any structure or object nor pennit the
growtfi of any fa-ee on tiie land subleased hereunder tfiat conflicts witii Part 77 ofthe Federal
Aviation Regulations. In the event tiie aforesaid covenants are breached, tiie County and/or
Sublessor reserve the right to enter upon the land subleased hereunder and to remove the
offending structure or object and cut tfie offending tree, all of which shall be at the expense of
Sublessee.
n. Sublessee by accepting tfiis Sublease agrees for itself, its successors and
assigns that it will not make use of the subleased Premises in any manner which might interfere
witii the landing and taking off of aircraft from the Airport or otherwise constitute a hazard. In
the event the aforesaid covenant is breached, the County and/or Sublessor reserve the right to
enter upon tiie Premises hereby subleased and cause tiie abatement of such interference at tiie
expense of Sublessee.
70017n3v2
o. It is understood and agreed that nothing herein contained shall be
construed to grant or authorize tfie granting of an exclusive right witiiin tiie meaning of Section
308a ofthe Federal Aviation Act of 1958 (49 U.S.C. 1349a).
p. This Sublease and all tiie provisions hereof shall be subject to whatever
right title United States Govemment now has or in tiie future may have or acquire, affecting tiie
conti-ol, operation, regulation and taking over of said Airport or tiie exclusive or non-exclusive
use of tiie Airport by tiie United States during the time of war or national emergency.
9. Signs. Sublessee shall not erect nor cause to be erected any sign on the Premises
witiiout the prior written approval of tiie County. A written request for sign approval must
include tiie size, type, color and location of tiie proposed sign and said application must be
concurred in by Sublessor before submittal to the County.
10. Substance Abuse. Sublessee and its employees and agents shall not use or
knowingly allow tiie use ofthe subleased Premises for tfie purpose of unlawfiilly driving a motor
vehicle or aircraft under tiie influence of an alcoholic beverage or any drug or for the purpose of
unlawfully selling, serving, using, storing, ti-ansporting, keeping, manufacturing or giving away
alcoholic beverages or any controlled substance, precursor, or analog specified in Division 10 of
tfie Califomia Healtii and Safety Code, and violation of tiiis prohibition shall be grounds for
immediate termination of this Sublease.
11. Prime Lease. Sublessor, as Lessee under the Master Lease represents and
warrants to Sublessee that, to Sublessor's knowledge as of the date of tiie commencement of tfie
term of tiiis Sublease: (a) Sublessor has delivered to Sublessee fiill and complete copies of tiie
Master Lease and all otfier related agreements between Sublessor and Master Lessor; (b) tiie
Master Lease is in fiill force and effect; and (c) no event of default has occurred under tfie Master
Lease on tfie part of Sublessor or Master Lessor and, to Sublessor's knowledge, no event has
occurred and is continuing which would constitute an event of default but for tiie requirement of
tiie giving of notice and/or tiie expiration of tiie period of time to cure under, or witii respect to,
any of such agreements.
12. Quiet Eniovment. Sublessor has full power and authority to enter into tfiis
Sublease, subject to tfie consent of Master Lessor. So long as Sublessee is not in default in tiie
performMice of its covenants and agreements in tiiis Sublease, Sublessee's quiet and peaceable
enjoyment of tiie Premises shall not be disturbed or interfered witii by Sublessor, or by any
person cleuming by, through, or under Sublessor.
13. Further Provisions Regarding Sublease. Sublessee agrees that it will provide and
maintain tiie insurance coverage required of Sublessor pursuant to tfie Master Lease witfi respect
to tfie Premises. Each party agrees tfiat it will not, by its act or omission to act, cause a default
under tfie Master Lease. In fiirtherance of tiie foregoing, tfie parties hereby confirm and agree,
each to tiie otiier, tiiat it is not practical in tiiis Sublease to enumerate all of tfie rights and
obligations of tiie various parties under tiie Master Lease and specifically to allocate tiiose rights
and obligations in tiiis Sublease. Accordingly, in order to afford to Sublessee tiie benefits of tfiis
Sublease and of tfiose provisions of tiie Master Lease which by tiieur natiire are intended to
benefit tiie party in possession ofthe Premises, and in order to protect Sublessor against a default
70017113V2
by Sublessee which might cause a default or event of defauh by Sublessor under tiie Master
Lease:
a. Except as otiierwise expressly provided herein. Sublessor shall perform its
covenants and obligations under tfie Master Lease which do not require for tiieir performance
possession of tiie Premises and which are (i) not reasonably anticipated to be performed by
Sublessee or (u) not otiierwise to be performed hereunder by Sublessee on behalf of Sublessor.
b. Except as otiierwise expressly provided herein, Sublessee shall perfonn all
affinnative covenants and shall refrain from perfonning any act which is prohibited by tiie
negative covenants of tiie Master Lease; where tiie obligation to perfonn or refrain from
perfomung is by its natiire imposed upon tiie party in possession of tiie Premises.
c. Sublessor shall not agree to an amendment to tiie Master Lease which
might have an adverse effect on Sublessee's use or occupancy of tfie Premises, increase
Sublessee s costs under tiiis Sublease or have an adverse effect on tfie use of tfie Premises for
tiieu- intended purpose, unless Sublessor shall first obtain Sublessee's prior written approval
tfiereof, which approval by Sublessee shall not be uraeasonably witiiheld or delayed.
^4- Reversion to Sublg^see of Sublessor's Interest in Master Lease If tfiis Sublease is
ever tenninated or expires otfier tfian as a result of default by Sublessee, all right titie and
interest m the MastCT Lease shall revert to Sublessee; provided, however, tiiat Sublessor shall
cure any defaults and indemnify Sublessee for any liabUities arising during tfie period prior to
such reversion, otiier tiian such defaults and liabilities caused by Sublessee's own breach or
failure to perform.
15. Additional Provisions.
a. Governing Law. This Sublease shall be govemed by and consti-ued in
accordance witfi tfie laws of tfie State of Califomia.
b. Waivers. No waiver or breach ofany covenant or provision shall be deemed a waiver of any otfier consent or provision, and no waiver shall be valid unless in writing and executed by tfie waiving party. wxumg
t ^ ^.u-^' c u, ^°°^^<^faon Headings are used solely for tiie parties'convenience, are not a part of tins Sublease, and shall not be used to interpret tiiis Sublease. This Sublease shall not be conshiied as if it had been prepared by one of tfie parties, but ratfier as if botii parties have
prepared It. i'^v.vaiiavc
70017n3v2
This Sublease Agreement is entered as of the date first set forth above.
SUBLESSEE:
PALOMAR TRANSFER STATION, INC.
Address: 8364 Claremont Mesa Blvd.
San Diego, CA 92111
Attn: General Manager
SUBLESSOR:
CITY OF CARLSBAD, a municipal
corporation
By:_
Titie:.
By:__
Titie:
Address: 1200 Carlsbad Village Drive
Carlsbad, CA 92008
Atto: City Manager
70017!13v2
EXHIBIT A
DESCRIPTION AND PLAT OP THB PREMISES
Parcel No. 97-0085-Al
That portion of McClellan-Palomar Airport:, in the City of
Carlsbad, County of San Diego, State of Califomia, described in
deed to the County of San Diego, recorded January 18, 1974 as
Fxle/Page No. 74-014190 in the Office of the County Recorder of
said County, described as follows:
BEGINNING at the most Southerly corner of land described 'in deed
to the City of Carlsbad recorded June 30. 1982 at Pile/Page No
82-201566 in said County Recorder's Office; thence along .the
Southerly boundary of said Carlsbad land. North 78«'42'04" Wedt
* point on the Easterly line of a 48.00 foot road
and utility easement granted to said City of Carlsbad on said
1982 deed; thence along said Easterly line, South 11«17'56" West
519.92 feet CO the beginning of a tangent 326.00 foot radius
curve, concave Easterly; thence Southerly, along the arc of said
curve, through a central angle of 54«45'22", a distance of 3li 55
feet; thence tangent to said curve South 43•27'26" East 112 20
feet; thence leaving said Easterly line. North 5l«3l'08" East
235.72 feet; thence North 6l.»24'l9" Easfc^ 3SS;4«....fe«t; thence'-
cn^'S? 246.04.feet-l:oTJthe:*eg*nii±ng:>o£ a^
50.00 foot radius curve concave We»*e»lyKthtenc».«N6rthea»*«rly
- arc of said curve? througl»f a*ceBt«i*«,angie ofe^c
?f 31 "12 ' 50 - West . 51.72 f eetf thence NO»CiB35af*37' t3:Sr-^MtJf;
ol BEGT^S^Sr ^^^'^^^ North 4-55'29- East, 93.29^eet: to-rthe-POlNT
1J«.79S771.VJ a . 1
PLAT OF THS PREMISES
[SEE ATTACHED]
A-2 """^
PALCaiAR TRANSFER STATION LEASE AGREEMENT
MCCLELLAN-PALOMAR AIRPORT
CARLSBAD, CALIFORNIA
EXHIBIT 0
LESSOR: TBE COtXHTT OF SAN DIEGO
LESSEE: PALOMAR TRANSFER STATION, INC.
PARCELS: APN# 97-0085-Al
Allie J
CODNTY CCaiTRACT NO
1JS3-79S77I.V1
INDEX
ARTICLE 1 - StJMMARY OF BASIC LEASE • PROVISIONS i
1.1 Lessor ' •
1.2 Lessee . i
1.3 Premises and Property I
1.4 The County's and Lessee's Lease Administrators* ' ' 2
1.5 Term • * *
1.6 Effective Date ' ^
1.7 Intentionally Omitted ,
1.8 Rent t
1.9 General Description of Lessee's Use of Premises -J
1.10 Definitions ^remises . . 2
1.11 Exhibits To Lease .'i
1.12 Construction of Lease Provisions ......[. [ 3
ARTICLE 2 - LEASE OP PREMISES -
2.1 Description • . • ?
2.2 Mineral Rights 4
2.3 Reservations to the County/Easement Reservations* 4
2.4 Lease SiUsordinate to Conditions and Restrictions
In^josed by Public Agencies on Airport Operations . 4
ARTICLE 3 - TERM OF LEASE AND FIRST RIOIBEv TO,ACQUIRE THE-»
PREMISES _
3.1 Term; Definitions • • - |
3.2 Surrender of the Premises; Quitclaim of Lessee's'* * Interest l^on Tennination g
3.3 Early Termination by the County .... o
3.4 First Right to Acquire the Premises .......[ 6
ARTICLE 4 - RENT _
4.1 Prepaid Rent ] i
4.2 Base Rent for Option Periods 7
4.3 Payments of Monthly Base Rent ....!!!!!*.* 7
4.4 Rent Adjustment at Commencement of Each Option'
Period 7
4.5 cost of Living Adjustment ("COIAM to the Base*
Rent Payable Monthly During Option Periods . - a
4.S Consumer Price Index * g
ARTICLE 5 - CONDITIONS PRECEDENT TO EFFECTIVENESS OF LEASE
5-1 Conditions Precedent to Effectiveness of Lease . . 9
ARTICLE 6 - POSSESSION AND USE , «
6.1 Permitted Uses . iQ
6.2 Duties and Prohibited Conduct , . ! !no
6.3 Compliance with Laws .!!'*' 11
6.4 Substance Abuse i,
6.5 Control of Premises ]12
LA3-7«377l.v: ouitm
ARTICLE 7 - UrriLITIES 12
ARTICLE 8 - MECHANICS' LIENS 13
8.1 Mechanics' Liens 13
8.2 Contest of Lien 13
8.3 Right to Cure 13
8.4 Notice of Lien 13
8.5 Notice of Nonresponsibility 13
ARTICLE 9 . - SECURITY 14
ARTICLE 10 - IMPROVEMENTS; PERSONAL PROPERTY;
FIXTURES; MINOR ALTERATIONS 14
10.1 Intprovements 14
10.2 Construction Reguirements . 14
10.3 The County's Costs; Indemnity 15
10.4 Personal Property 15
10.5 Fixtures 15
10.6 Signs and Lighting . i6
10.7 Minor Alterations 16
ARTICLE 11 - TAXES, ASSESSMENTS AND FEES 16
11.1 Responsibility for Payment of Taxes and
Assessments 16
11.2 Definition of "Taxes" 16
11.3 Creation of Possessory Interest 17
ARTICLE 12 - REPAIRS; MAINTENANCE 17
12.1 Acceptance of Premises 17
12.2 Lessee's Repair and Maintenance Obligations .... i7
12.3 Lessee's Failure to Maintain 18
12.4 Right to Enter , la
12.5 County Not Obligated to Repair or Maintain;
Lessee's Waiver of Califomia Civil Code Section
1942 18
ARTICLE 13 - INDEMNITY AND INSURANCE 19
13.1 Indemnity 19
13.2 Insurance 19
13.3 Indemnity 19
ARTICLE 14 - CONTAMINANTS 20
14.1 Environmental Laws - Definition 20
14.2 Contaminants, Leachate and Landfill Gas -
Definitions 20
14.3 Lessee's Representations and Warranties 20
14.4 Indemnifications Regarding Contaminants, Leachate
and Landfill Gas 22
14.5 Remedies Cumulative; Survival 22
14.6 Inspection 22
ARTICLE IS - ASSIGNMENT, SUBLEASING AND ENCUMBRANCING .... 22
LA3-7«77j.vi ii av)tm
ARTICLE 16 DEFAULTS BY LESSEE; THE COUNTY'S REMEDIES .... 28
16.1 Events of Default 28
16.2 Notices . 29
16.3 The County's Rights and Remedies 29
16.4 The County's Damages 30
16.5 Fixtures and Personal Property 31
16.6 The County's Security Interest 32
16.7 Lessee's Waiver ,32
16.8 Interest 32
ARTICLE 17 - DEFAULTS BY THE COUNTY; REMEDIES 32
ARTICLE 18 - ABANDONMENT -a.3
• I
ARTICLE 19 - BANKRUTPTCY : . . 33
19.1 Right of Termination ti- 33
19.2 Request for Information . ' 34
ARTICLE 20 - DAMAGE OR DESTRUCTION 34
ARTICLE 21 - EMINENT DOMAIN 35
ARTICLE 22 - SALE OR MORTGAGE BY THE COUNTY 36
22.1 Sale or Mortgage 36
ARTICLE 23 - SUBORDINATION; ATTORNMBN«,; 36
23.1 Subordination 36
23.2 Attornment 36
ARTICLE 24 - COUNTY'S RIGHT OF ACCESS 36
24.1 Access 36
24.2 Lessee Waivers Regarding County Access 37
ARTICLE 25 - QUIET ENJOYMENT 37
ARTICLE 26 - HOLDING OVER 37
ARTICLE 27 - NOTICES 38
27.1 Notices 38
27.2 Default Notices 38
ARTICLE 28 - NONDISCRIMINATION 38
ARTICLE 29 - AFFIRMATIVE ACTION PROGRAM 38
ARTICLE 30 - WAIVER OF RELOCATION ASSISTANCE BENEFITS .... 39
30.1 Relocation Assistance Benefits 39
30.2 Lessee's Waiver and Release of Relocation
Benefits 39
ARTICLE 31 - RECORDS, ACCOUNTS AND AUDITS 40
LAJ-7M77t.VJ iii ou\tm
ARTICLE 32 - GENERAL PROVISIONS 40
32.1 Authority 40
32.2 Brokers 40
32.3 Captions 40
32.4 The County Approval 40
32.5 Cumulative'Remedies 41
32.6 Entire Agreement 41
32.7 Estoppel Certificate 41
32-8 Exhibits 41
32.9 Force Majeure 41
32.10 Goveming Law 42
32.11 Interpretation 42
32.12 Joint and Several Liability c • • 42
32.13 Lessee's Lease Administration i . . 42
32.14 Liquidated Damages 42
32.15 Modification i. . ,. 42
32.16 Partial Invalidity I • -i 42
32.17 Payments 43
32.18 Successors & Assigns 43
32.19 Time of Essence . 43
32.20 Waiver 43
EXHIBIT A
EXHIBIT B
EXHIBIT C
DESCRIPTION AND PLAT OF THE PREMISES
FAA REQUIREMENTS
MCCLELLAN-PALOMAR AIRPORT INDUSTRIAL AREAS
DEVELOPMENT STANDARDS
EXHIBIT D: MCCLELLAN-PALOMAR AIRPORT INDUSTRIAL AND AVIATION
AREAS PERFORMANCE STANDARDS
EXHIBIT E: INSURANCE REQUIREMENTS
A: Liability Insurance
Ad) : Collarehensive General Liability Insurance
A(2): Commercial General Liability Insurance
A(3): Required Liability Policy Coverage
A(4} : Additional Insured Endorsement
A(5): Primary Insurance Endorsement
A(6) : Form of Liability Insurance Policies
B: All Risk Fire Insurance
Bd) : Deductible
B(2): Rental Income Insurance
B{3): Loss Payee
B(4}: Proceeds of Insurance
C: Comprehensive Automobile/Aircraft /Watercraft
Liability Insurance
D: Statutory Workers' Compensation and Enqoloyer's
Lieibility Insurance
E: General Provisions
Ed) : Certificates of Insurance
E(2): Claims Made Coverage
1>3.7«J77I.V5 IV
E(3): Failure to Obtain or Maintain Insurance; the
County's Remedies
E(4): No Limitations of Obligations
E(5): Notice of Cancellation or Change of Coverage
B(6}: Qualifying Insurers
E(7): Review of Coverage
E(8): Self-Insurance
£(9): Sublessee's Insurance
EdO): Waiver of Subrogation
EXHIBIT F: THE COUNTY OF SAN DIEGO REQUIRED SUBLEASE PROVISIONS
1>3.7«377|.V5 V OI/IIMT
PALOMAR TRANSFER STATION LEASE AGREEMENT
TEIS PALOMAR TRANSFER STATION LEASE AGREEMENT ("Lease") is
made and enterjed into aJEJective as of October 31, 199T; i>y and
between the I^^Q^Htf;. Of' SAH DIEGO,- a political subdlvisj^nMOg^the
State of California (the "County"), and the fia^Oi^ T^Mnla'
STATlOlirIMe^^^^a Califomia corporation ("Lessee").
IN CONSIDERATION OF THE RENTS AND COVENANTS set forth in
this Lease, the County hereby leases to Lessee, and Lessee hereby
leases from the County, the Premises described in Article 1
(S17MMARY OF BASIC LEASE PROVISIONS) below, upon the following
terms and conditions:
ARTICLE 1 '
SUMMARY OP BASIC LEASE PROVISIONS
1.1 £i£fiAfiC; THB COUNTY OP SAN DIEGO, a political'
subdivision of the State of Califomia
Address for notice:
1.2 £tfia££A:
Director
Department of General Services
Building 2
5555 Overland Avenue
San Diego, Califomia 92123
with a copy to:
Assistant Deputy Director - Aviation
1960 Joe Crosson Drive
El Cajon, Califomia 92020
Palomar Transfer Station, Inc.
Address for notice: 8364 Clairmont Mesa Boulevard
San Diego, California 92111
Attention: Mr. Jim Ambroso
with a copy to:
Allied Waste Industries, Inc.
15880 N. Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
Attention: Jo Lynn White, Esq.
LAS-7917TI.V1 OViVfl
1.3 Pjrgmlaes and Property; The Premises means that
approximately 10.697 acres described on Exhibit A (DESCRIPTION
AND PLAT OF PREMISES) attached hereto and by this reference
incorporated in this Lease. The term "Property", as used herein,
includes the Premises, all buildings and improvements to the
Premises, the parking lots and any parking structures appurtenant
to the buildings, and such other facilities, structures and
improvements located thereon.
1.4 The County's and Leasee's Lease Adnlnlstrators; This
Lease shall be administered on behalf of the County by the
Director, Department of General Services, The County of San
Diego, or by such person's duly-authorized designee referred to
collectively in this Lease as "Tbe County's Lease '
Administrator"), and on behalf of Lessee by Mr. Jim Ambroso, or
by such other person as may be designated in writing by Lessee
referred to in this Lease as "Leasee's Lease Administrator").
1,5.. Zuai' - The term of this Lease shall be t^^g|^fd
yeaxfl^the "Initial Teza"), commencing on the Effective Date, and
ending on the twenty-fifth (25th) year anniversary of the '
Effective Date, as the same may be extended pursuant to Section
3.1, "Term; Definitions".
1.6 Effective Date: See Section 3.1, "Teza; Definitions".
1.7 lattPtiOMllY Offltt^d-
1.8 £sa£: The t^fpP^liifill^eW ftor the^£^
Three Million Eighty-Six Thousand Dollarsf^(jj^0i4^;,OOii># (the
"Prepaid Rent"), which amount will be prepaid by Lessee to the'
County at Closing (as defined in the Purchase Agreement (as
defined below)), pursuant to the terms thereof. If Lessee elects
to extend the term pursuant to Section 3.1, "Tem; Definitions",
the Base Rent for each month during the applics^ale Option Period
(as defined below) shall be determined pursuant to Section 4.4,
"Rent Adjustment at Conmiencement of Each Option Period" and
Section 4.5, "Cost of Living Adjustments ("COLA") to the Base
Monthly Rent During Option Periods" shall be payable on the first
calendar day of each month.
1-9 General Description of Leasee's Pse of Premises;
Lessee shall use the Premises solely for the uses specified in
this Lease, generally described as the office operations of a
solid -was.t
trash., trans.
trash.
l^^i^iffiitfng wid transferHSg
1.10 p^flnitiona; As used in this Lease, the following
terms shall have the meanings attached to them in this Section
unless otherwise apparent from their context:
LA3-793771.VJ 0t/lV97
a. "Airport" means McClellan-Palomar Airport.
Carlsbad. California.
b. "Assistant Deputy Director - Aviation" means the
Assistant Deputy Director - Aviation, of the
Department of Public Works, the County of San
Diego, or upon written notice to Lessee, such
other person as shall be designated from time-to-
time by the Board.
c. "Board" means the Board of Supervisors of the
County of San Diego.
d. "FAA" means the Federal Aviation Admini8tra|tion.
e. "Standards" means the McClellan-Palomar Airport
Industrial Areas Development Standards and i the',
McClellan-Palomar Airport Industrial and Aviation
Areas Performance Standards attached as Exhibit C
and Exhibit - D hereto.
f. "ALP" means the FAA-approved Airport Layout plan
for McClellan-Palomar Airport.
1.11 pyhlbits To Lease: The following drawings and special
provisions are attached hereto as exhibits and made a part of
this Lease:
PXHT^^'^ ^ - Description and Plat of the Premises.
gXHT^^T B • FAA Requirements.
KXPTBIT C - McClellan-Palomar Aiaqport Industrial Ar^as
Development Standards.
FiXHTBiT D - McClellan-Palomar Airport Industrial and
Aviation Areas Performance Standards.
R^^lffjBlT B - Insurance Requirements.
^ywTBiT F - The County of San Diego Required Sublease
Provisions
1.12 Construction of Lease Provisiong: The foregoing
provisions of this Article summarize for convenience only certain
key terms of the Lease delineated more fully in the Articles and
Sections referenced in this Article. In the event of a conflict
between the provisions of this Article and the balance of the
Lease, the latter shall control.
LA3.7S577..V7 3 «"«'^
ARTICLE 2
LEASE OF PREMISES
2.1 BfifiSSilLfelflfl. Subject to Article 5 (CONDITIONS
PRECEDENT TO EFPECTIVENBSfi OP LEASE), the County hereby leases to
Lessee and Lessee hereby leases from the County, for the rent and
upon the covenants and conditions set forth in this Lease, the
Premises described in Section 1.3, "Premises and Property" above.
2-2 Mj^Pertl Rjqhtt. Notwithstanding any provision of this
Lease to the contrary, the County hereby esqiressly reserves all
rights, title and interest in.and to any and all gas, oil,
mineral and water deposits located upon or beneath the surface of
the Premises. The County shall have the right to enter 'the
Premises at any time during the Term for the purpose of ooeratinci
or maintaining such drilling or other installations as may be
necessary or desirable for the development of any such gas oil
mineral or water deposits. ' '
2.3 H^otTy^ti.<9n9 to tbe Countv/Easenent llm»m^»fi^ng
Lessee accepts the Premises subject to any and all existing
easements and encumbrances. The County reserves the right to
establish, to grant or to use easements or rights-of-way over
under, along and across the Premises for access, underground '
sewers, utilities, thoroughfares or such other facilities as it
deems necessary for public health, convenience and welfare
whether or not such facilities directly or indirectly benefit the
Premises, and to enter the Premises for any such purpose;
provided, however, any such grant of rights by the County shall
require that the Premises be restored to their preexisting
condition; and, provAdert. lilttJlfix, however, that such grant does
not materially interfere with Lessee's continued operation of the
Premises.
Imposed by Wile Agencies oa Airport Operationi., This Lease
shall be subordinate and subject to the terms, conditions,
restrictions and other provisions of any existing or future
permit, lease and agreement between the County and any federal,
state or local agency goveming the County's control, operation
or maintenance of the Airport, or affecting the expenditure of
federal funds for the Airport. Lessee shall be bound by all such
terms and conditions, and shall, whenever the County may so
demand, execute, acknowledge or consent to any instrument
evidencing such terms, conditions, restrictions or provisions
Without limiting the generality of the foregoing, this Lease and
Lessee's occupancy of the Premises are expressly made subordinate
and subject to the terms, conditions, restrictions and other
provisions of those requirements of the Federal Aviation
Administration specifically set forth in Exhibit a and Lessee
shall be bound by all such requirements.
U3-7<»577I.VJ 4
ARTICLE 3
TSKJJ OF LEASE AND FIRST RIGHT TO ACQUIRE THE PREMISES
3.1 Term; Pefiftitioag.
a. Subject to Article 5 (CONDITIONS PRECEDENT TO
EFFECTIVENESS OP LEASE), this Lease shall be effective as of the
"Effective Date" as defined below and the term ("Term") of this
Lease shall commence on the "Effective Date" and shall continue
thereafter for the period specified in Article 1 (SUMMARY OP
BASIC LEASE PROVISIONS), unless sooner terminated as provided in
this Lease. As used in this Lease, the "IffectlT* Data" means
thirty (30) business days (or upon such eWitW'''6i€ii^'-iTTiMy be
mutually agreed upon) following the date on which the later of'
th* fbilowing occiif^'t coll actively, the ~" Carlsbad'Lease
Conditions*)::: (iTrthe eaqplration or eartier teriidnatlon of that
certalA Industrial Lease Agreement (Airports) dated as of October
21, 1997, by and between the County and the City of Carlsbad; and
(2) the surrender and vacation ol the Premises "by thebf
Carlsbad ahd''Cda8t wast~e >feha§^ Inc/ Within fifteen (15)
business days following the Effective Date, the County and Lessee
shall confirm the actual date of the Effective Date in writing.
Except as otherwise specifically stated in this Lease or in any
subsequent amendments hereof, the terms and conditions of this
Lease shall remain in effect following any extension, renewal or
holdover of the original Term.
b. Subject to the terms of this Section, ^P^^^ihall'
have fourteen (14) successive cations (each, an "Optlw^ftic^
extend" thirT^^rBiby if ive (S) years per C)ptl6 (each, an "Option
Period*); provided, however, that in no event shall the Term
exceed ninety-five (95) years in the aggregate. An Option shall
be exercisable by Lessee only if Lessee (i) •^•-aig'JiBgy:'UIT'daf rony
which Lessee exercises the Option and as of the commencement date
of the Option Period related to such Option, jyijfpBagt'tlg.gMBSP^
mate|^lA^'<mpllam^
AgxienSml^land Lessee agrees that, if Lessee has failed to make
any payment required under this Lease, after any applicable
notice and cure period provided in this Lease, it shall not be in
"material compliance*);(11) JHr«foie* th«r.pr«nl»e«^-prlTI««'I^^^^
solld^^B^t!Mg^||il^1BnB%l£i|^ and (111)
is, as of "theaateon which' Lessee exercises an Option and as of
the commencem^t da of the Option Period related to such
Option^, itijjijjlllll^ I M >>Tii th«'''Preiidise8'''prim'rll^'-'M^^^ wastii'
tfansferr^snnnKSiP In order to exercise an Option, Lessee must
notify the County of its irrevocable election to exercise the
Option no morerthan one'V**» *^ less tHa«^ slit (e^ liwh^
before the expiration of, with respect to the first Option, the
Initial Term or, with respect to all other Options, the then
applicable Option Period. Upon the proper and timely exercise of
an Option by Lessee in accordance with this Section, the Term
shall be extended for the applicable Option Period and the terms
LA3-7»S77I.Va wivrt
and provisions of this Lease shall remain in full force and
effect during such Option Period-
3.2 Surrender of the Pri>-mlflea« Ouitelaim of Leasee's
Interest; npon Tennination.
a. Lessee shall surrender possession of the Premises
to the County upon expiration of the Term or earlier termination
of this Lease. Upon termination of this Lease for any reason, .
including but not limited to termination because of default by
Lessee, Lessee shall execute, aclcnowledge and deliver to the
County, within thirty (30) days following receipt of written
demand therefor, a good and sufficient deed whereby Lessee
quitclaims all right, title and interest in the Premises to the
County. Should Lessee fail or refuse to deliver such quiticlaim
deed to the County, the County may prepare and record a hot ice
reciting the failure of Lessee to do so, and such notice shall be
conclusive evidence of the termination of this Lease euad of all
right of Lessee or those claiming under Lessee to the Premises.
b. Should the manner or method enployed by the County
to re-enter or take possession of the Premises following the
termination of this Lease give Lessee a cause of action for'
damages or in forcible entry and detainer, the total ajnoimt of
damages to which Lessee shall be entitled in any such action
shall be One Dollar ($1.00). This provision may be filed in any
action brought by Lessee against the County, and when so filed
shall constitute a stipulation by Lessee fixing the total damages
to which Lessee is entitled in such an action.
3.3 fi^xly Tennlpation^bY m Cpvatv-^liE1^piffii|>fei-i not have.ji»jgjsijaaL^.«^ wit^thls^asei
^Qvid^^y^^Hji^ shall limit the .
3.4 plrst Richt to Aeonire the Prenises. Subject and
subordinate to the first right of refusal granted to the City of
Carlsbad, its successors and assigns, pursuant to the Palomar
Transfer Station Settlement Agreement (as defined in the Purchase
Agreement) , if, during the term of this Lease, the County
proposes to sell the Premises, or any portion thereof, emd
provided Lessee is not in default under the terms of this Lease
at the time such proposal to sell is made by County and Lessee is
not in default at any time during the following negotiation
period. ?<*gMnBP;lH»taigraive Lessee first right (*Plr8t Right*) to
negotllJfi'^wlwJ'GB^ acqiilra. th*- Pr^femlses or that portion of
the Premises''County pfoposes to selli In no event shall the
First Right survive the expiration or earlier termination of this
Lease-
a. Lessee must exercise its First Right within thirty
(30) days after Lessee has received written notice from County of
County's intent to sell the Premises.
LA3.7<57Ti.vi 6 auitm
b. If the County receives written notice from Lessee
within thirty (30) days after Lessee has received written notice
from County of County's intent to sell, County and Lessee shall
enter negotiations for sale of the Premises, or that portion of
the Premises County intends to sell-
c. If the County and Lessee do not successfully
negotiate an agreement on the sale of the Premises to Lessee
within forty-five (45) days following the County's receipt from
Lessee of Lessee's exercise of its First Right, Lessee's First
Right shall terminate and the Cotmty may taJce any action it deems
necessary in the sale of the Premises. During said period of
negotiations. Lessee and County shall negotiate in good faith.
d. The negotiation of a sale of the Premises trom the
County to Lessee is subject to approval by the Federal Aviation
Administration and without such approval, the terms of this ',
Section 3.4 (FIRST RIGHT TO ACQUIRE TBE PREMISES) are null and
void.
ARTICLB 4
RENT
4.1 Prepaid Rent. The total prepaid Base Rent for the
Initial Term is the Prepaid Rent, which amount will be prepaid by
Lessee to the County at Closing (as defined in the Purchase
Agrieement (as defined below)), pursuant to the teraja-theieof.
4.2 Base Rent for Option Periods. ^ifLessee elects ttf*
extend the term of this Lease pursuant/to Section 3jl^„,,5»€xia8»
Definitions", during the applicable Option PejjjaT^rossee shal
pay to the County each month in advance, wicHout setoff,
deduction, prior notice or demand, the Base Rent, which monthly
payment must be made on or before the first calendar day of each
calendar month during the applicable Option Period. J^^BiUi* '
Rent for each Ctotion Period shall be' determined pursiHrar'tid^^^
Section 4:.''tT*^^ent Adjus^uu|t at Ccm^ntmm^^^^^y.'^^ii^^g^
Period*''liid^«i¥€X|a^^ Adjn8t»en'tl^(J^ec»JL*') to
the Base MontMy-l^ent Durlag^^
4.3 Payments of Monthlv Base Rent. The Base Rent payable
monthly during any Option Period shall be made payable to the
County of San Diego and shall be considered paid when delivered
to Controller Branch Office - Cashier, 5201 Ruffin Road, Suite H
(MS 0654). San Diego. Califomia 92123. The County may, at any
time, by written notice to Lessee, designate a different address
to which Lessee shall deliver the rent payments.
4.4 Rent Adiustment at Commencement of Each Option Period.
4.4.1 First Option Period- Base Rent payable
monthly for the first Option Period shall be adjusted to an
amount equal to the fair market rent for the Premises, which
1>3-7«S771.VZ 7 OWJim
amount shall, subject to the provisions of this Section 4.4.1,
"First Option Period", be determined by an appraisal performed by
a mutually acceptable appraiser pursuant to mutually acceptable
instructions. Such appraisal shall be performed no later than
six (6) months prior to the eaqpiration of the then-current Option
Period. If the parties are not able to agree on the designation
of the appraiser, the instructions to the appraiser or on the
appraiser's conclusions, the matter shall be submitted to binding
arbitration pursuant to the provisions of the Califomia Code of
Civil Procedure, or such successor codes or statutes.
Notwithstanding the foregoing provisions of this Section 4.4.1,
"First Option Period*, in no event shall the Base Rent payable
monthly for the first Option Period be less than an amount
determined by using the formula described in Section 4.5, "Cost
of Living Adjustments ("COLA") to the Base Rent During Option
Periods*, where (1) "A" equals $23,000; (11) "B" equals the
monthly Consumer Price Index, as hereinafter defined, for the
month of March immediately preceding the commencement of .the
first Option Period; and (111) "C" equals the monthly Consumer
Price Index, as hereinafter defined, for the month of March
immediately preceding the commencement of the Initial Term.
4.4.2 Other Option Periods. Except for the first
Option Period, which shall be govemed by Section 4.4.1, "First
Option Period", at the commencement of each Option Period, the
Base Rent shall be adjusted to an amount equal to the fair market
rent for the Premises; provided/ ho^'ever. that in no event shall
the Base Rent for any Option Period be less than three percent .
(3%) greater or more than seven percent (7%) percent greater than
the Base Rent for the month immediately preceding the
commencement of such Option Period (excluding any offset, free
rent or credit rights of Lessee). Subject to the preceding
sentence, fair market rent shall be determined by an appraisal
performed by a mutually acceptable appraiser pursuant to mutually
acceptable instmctions. Such appraisal shall be performed no
later than six (6) months prior to the expiration of the then-
current option Period. If the parties are not able to agree on
the designation of the appraiser, the instmctions to the
appraiser or on the appraiser's conclusions, the matter shall be
submitted to binding arbitration pursuant to the provisions of
the Califomia Code of Civil Procedure, or such successor codes
or statutes.
4.5 Cost of Living Adjustment ("COLA") to the Base Rent
Payable Monthly Purina Option Periods. The Base Rent payable
monthly during each Option Period shall be adjusted as of the
first (1st) anniversary of the commencement of each Option
Period, and thereafter every year on such date for the remainder
of the applicable Option Period (each such one-year period is
referred to herein as a "COLA Period"), to reflect any increase
in purchasing power by use of the following formula:
R - A(B/C)
LA3-7«77i.vj 8 auiim
>m#re1 n:
"R" equal* the monthly rent for the COLA Period beins calculated; BXfliadsMi, faflMXtg. in nu •vent ehall che awnthiy rent for any one-year COLA P.nojTbe than tyir«e percent (3%)
greater or sr^ire than •ev«n pmismnt t7l) greacar chan che monthly rent fo» the previoua one-year COLA Periods
• A" equals the Base Rent as of the cowmericement of the t^^n-current opcton Period:
•<»^*i« i^he monthly Conauner Price ineex, «a herei/i«£t:«x defined, for the ir,onth of Narett iamadiately preceding CA« ' conwencewent of the COLA Period for which turn rent ia being adjuacedi atvjj
I '] "C" equal* the monthly Consumer Price index, as hereinafter dsfincd, zor che month sr Kerch inweillately prtt««din« the
conunencement of t,he chen-c-urrcne Option Period.
4«< CoaauaBer txiam z^^mm. The cotieumer price InAex which
ahali be used as the acurae fer the Conaumer Price Index nuiAbers
•hall be f.hat published by the unitea states Department of Labor,
entitled Ualttd States Sepxvr.meat of Uabor, Bureau Of LabOt
eeatiatlci, Coneum»r Price index tor the Loe aoooles'AAahelA--Riveriide Area (1983-84 - 100). If such index is not publiahed for the Loe Angeles-AnaKeim-River«ide Area, then aoofther coirparabla index or source of such infermation generally
recoonlsed as euchoritatlve ehall be eubstitueed lay agratenent oC
the partiei. tt the parties should not agree, sucn source of
infonnation shall be detertnlned by erbltratlon pursuant to the
provislone ot the California Code o8 Civil Procedure.
AftTlCLB. 9
COKUXTZOHS PUCSPKHT YO SrPBCVtVSnKSS OF 1AA8«
S.i ao»41.tiDAi Fttcetitat fca IffenttYsaess-ct Lthilg. The ezraetiveness of this Ltaae and the occurrenee of tha setective
rate le excresely conditioned uper. the eatlefaction of the
following conditions<
a. Bach oe the cerisbad ueaee Conditions shall have
occurred;
b. The County shall have detemined. in its eole ami Ahsoiuee diacretion. chat the premises are ttot mfCMasary or
desirable for the speratlos of. or uses related to, the
McClellan-Palomar Airport (IncludiRg, without llmlcacion. the
IcyelopiMnt of ir.dustra.«l, business or cosmwrcial taclliciea
r.hereont * which determinatica shall bs m*de tay thc County en or
before thirty buslnsss (30) day* following che occurrence of each
of the Cax3ebad Lease Condlttcna; QUUlilsiii Howe ver. that in no
fi«e«ivtd Aor-ZB-OO 02:01M Froa-rSOSB 1*763 To-PIU$BURY $0 Pa„ 02
APR-ae-ee ea.as PM HCRBF p.^s
event shall the County ce entitled te Xeeee the Pretnleae to •mother entity for use as a trane£ar statleat and
c. AS of Che date on wnich ene a asn of the Carlsbad
Lease Conditions occurs, Leasee shell be in material con^liancw
with Che terme »nd previelont oc tne Purchase Agreement '«•
defined below) and Che document • executed in connect len cherswltK.
s.a railurs ot a.Conditiea. xC one or mors of the
conditions precedent set forth in feetion a.l« "CenAitleaa
Precedent be SKXectlveaess of Lease" are noc eatiefied or'waived by chS County in writing, (i) thle :<eaae shall be e£ no force and t<fi:enti (ii) r.eitber the County nor Leeeee shall ba bound hereby; (iii) Leeeee shall have no right or intsreat in and te chb
premisse, including, without limitation, the uee or occupancy
thereof; end <iv) the county shall be free to take any action
wisn r*pp«ee ro Premises it decans neeceaary or deei table i
pri-)Vltfed. however chat in Lessee shall be entitled to a refund of
the prepaid rent ee dvtsrmined pursuant te the Purchase
Agreement.
AMTZCUt f
POSSBSaZCDf MID OftB
«.i •rrm*''**^ "is* Leaaes shall us*, the Premises solely
tor the uses permitted Mfi4-^immQxi^a»A^J.ii WmM,hir». JT:z{mxijaajm^ ^
pai^OHAa AiaPOAT ZKbDStBIAftxAMAl pffVnOFNSHTsiTAaiSAasSISiiefrtached nereto and tos the purpoeee specified in Beel:ioa~X.lS, "aeaeraX Oeseriptioa of Letaee's CTse of tbe Prs»i«es". No one ether than Lessee, ite agents aad employeee, or any sublessee of Lessee
approvedi by the County ae proviced in Artlole IS (ASfX9RMBn,
SDSLBACZMO JUTO ncousiiAKcxva) Is psmlttea to uae the premises
fcr Che purpoaas described herein, and Leesee shall be fully
responsible cor ene aecivlcias of it* agent*, essployee* and
sublessees, it any, on the Premlees. Lsseee »eicnowiedgea that
the County reserves the right te permit others at the Airport to provide one cr more of the saryicee to be provided by Leesee on the Premises.
C.3 Bufejge »n«i y;rnfcn»i»ad rnaStoefc. Where Leeeee is
reasonably dotibt ae to tne propriety of any partieulat u*a. Lessee may regueat the written detamdnation cf th* County's
Lease AdminlBcrator that such use ie or ie nec permitted, and
Lessee will not be in breaeh or default under this Leas* if Lessee anioes by such detezmlitation. Wetewitnetending the
foregoing, however, Lcsaee ahall not use nor permic the use oc
the Premise* in any manner chat will tend to create waeae or s
nuisance. Leesee shall not uee, or permic any person or persona
CO une, the Vremieea for the sale or diep3ay of any goode or
service* which, in tha aol* discretion of the county, are
inconsistent with the permitted uee* ot the Premise* pursuant CO
cilia Leaaa. Lessee shall keep the Premisea. and every part
>
R.c.ivd Apr-28-00 02:01^. Fro.-7S0SBI47S3 To-P)US6U»Y SO p.„ 03
thereof, in a good, safe and sanitary condition, free from any
objectionaible noises or odors, except aw may be typically present
for the permitted uses specified above. Lessee shall deposit all
trash and znibbish of Lessee only within receptacles provided by
Lessee and located in the areas designated by the County. Lessee
shall not allow or permit installation of any billboards or
advertising signs, or aerials or antennas, upon the Premises
without first obtaining, in each instance, the written consent of
the County, which consent the Co\inty may give or withhold in the
County's sole discretion. Any such signs or antenna installed
without such written consent shall be subject to removal without
notice at any time, at Lessee's expense. Nothing In this Section
shall be deemed to preclude Lessee from erecting and maintaining
safety, waming or directional signs, of reasonable dimensions,
which are not used for advertisement of goods or services;
provided. however. all such signs must conform to applicable
statutes and ordinances. '
6.3 Comallanee with Laws.
a. Lessee, at Lessee's sole expense, shall procuife,
maintain and hold available for the County's inspection any
govemmental license or permit reguired for the proper and lawful
conduct of Lessee's business. Lessee shall not use the Premises
for any use or purpose in violation of the laws of the United
States of America, or the laws, ordinances, regulations and
reguirements of the State of Califomia, the County of San Diego
or the city where the Premises are situated, or of other lawful
authorities. Lessee shall, at Lessee's expense, comply promptly
with all applicable statutes, laws, ordinances, rules,
regulations, orders, covenants and restrictions of record, and
reguirements in effect during the Term, regulating the use by
Lessee of the Premises. The final judgment of any court of
con^etent jurisdiction, or the admission of Lessee or any
sublessee or permittee in any action or proceeding against them
or any of them, whether or not the County is a party to such
action or proceeding, that Lessee, or any such sublessee or
permittee, has violated any such ordinance, law, statute,
regulation, covenant, restriction or requirement pertaining to
the use of the Premises, shall be conclusive as to that fact as
between the County and Lessee.
b. Notwithstanding any other provision of this Lease
to the contrary. Lessee shall be responsible for payment of all
costs of con^lying with the requirements of the Americans with
Disabilities Act of 1990 ("ADA") (42 USCS §§ 12101-12213), Title
24 of the Califomia Code of Regulations ("Title 24") and
Califomia Ciyil Code § 54-1 as they may apply to the Premises.
Lessee's obligations under this Section shall include, without
limitation, all costs of bringing the Premises into coi^llance,
and thereafter maintaining such compliance, with the requirements
of Title III of the ADA ("Title III") (42 USCS §§ 12181 - 12189)
applicaJDle during the Term to public accommodations and
LA3-wn7i.v2 11 ot/tim
commercial facilities, irrespective of whether or not the
particular requirements of such compliance (i) are specifically
required by Lessee's intended use of the Premises, or (ii) may
also be required of the County under Title II of the ADA ("Title
II") (42 USCS SS 12131 - 12165).
c. Lessee shall, with regard to the Property, assume
all obligations placed on the Co\mty pursuant to any existing or
future industrial stormwater pemlt or existing or future
constmction permit including, but not limited to, preparation of
any required Notices of Intent or Stormwater Pollution Prevention
Plans for so long as this Lease is In effect.
6.4 substance Abuse. Lessee and its eiqployees and c^gents
shall not use or knowingly allow the use of the Premises, for the
purpose Of unlawfully driving a motor vehicle or aircraft under
the influence of an alcoholic beverage or any dmg, or fo± th^
purpose of unlawfully selling, serving, using, storing,
transporting, keeping, manufacturing or giving away alcoholic
beverages or any. "controlled sxjbstance," precursor or analog
specified in Division 10 of the Califomia Health and Safety
Code, and violation of this prohibition shall be grounds for
immediate termination of this Lease.
6.5 Control of Premiaeg. Failure of Lessee to exercise
control of the use of Premises to conform to the provisions of
this Article shall constitute a material- breach of tha<'Lease ^and
such shall be grounds for termination.
ARTICLB 7
UTILITIES
deposits and fees, and for aiTurafffWTOrsleli^^ .
for its use and occupancy of the Premises durlTO tHe Term)
including but not llmlted'to gas, water, electricity, trash,
sewer/septic tank charges and telephone; the County shall have no
responsibility to either provide or pay for such services. The
County will not be liable for any reason for any loss or damage
resulting from an intermption of any of these services. The
County shall have the right, at no charge from Lessee, to connect
to any water, sewer, electrical, gas and communications lines as
are now or may hereafter be installed on the Premises, and shall
have all necessary rights of access to constmct and service such
connections; pifividfifl, however. Lessee shall have no obligation
to pay any additional service fees or charges assessed by euiy
govemmental agency, or public or private utility company, for
the County's use of such connections; and, provid^4. further,
however, that such connection does not materially interfere with
Lessee's continued operation of the Premises.
iAi.mni.v7 12 oi/iim
ARTICLE 8
MECHANICS' LIENS
8.1 Mechanics' Liens. Lessee shall pay, or cause to be
paid, all costs for work done by it, or caused to be done by it,
on the Premises, and' for all materials furnished for or in
connection with any such work. If any lien is filed against the
Premises, Lessee shall cause the lien to be discharged of record
within ten (10) days after it is filed. Lessee shall indemnify,
defend and hold the Coxmty harmless from any and all liability,
loss, damage, costs, attorneys' fees and all other expenses on
account of claims of lien of laborers or materialmen or others
for work performed or materials or supplies fumished for Lessee
or persons claiming under Lessee.
I
8.2 Contest of Lien. If Lessee shall desire to contest any
lien filed against the Premises, it shall fumish the County,
within the ten-day period following filing of the lien, sdcurjfty
reasonably satisfactory to the County of at least one hundred
fif ty percent (150%) of the amount of the lien, plus estimated
costs and interest, or a bond of a responsible corporate surety
in such amount, conditioned on the discharge of the lien. If a
final judgment establishing the validity or existence of a lien
for any amount is entered. Lessee shall immediately pay and
satisfy the same.
8.3 Right to Cure. If Lessee shall be in default in paying
any charge for which a mechanics' lien claim and suit to
foreclose the lien have been filed, and shall not have given the
County security to protect the property and the Cotinty from
liability for such claim of lien, the County may (but shall not
be required to) pay said claim and any costs, and the amount so
paid, together with reasonatble attomeys' fees incurred in
connection therewith, shall be immediately due and owing from
Lessee to the County, and Lessee shall pay the same to the County
with interest at the rate sped'ified in Sectioa 16.8, "Interest"
from the date{s) of the Covinty's payments.
8.4 Notice of Lien. Should any claim of lien be filed
against the Premises or any action against the Premises or any
action affecting the title to such property be commenced, the
party receiving notice of such lien or action shall immediately
give the other party written notice thereof.
8.5 notice of Nonresponsibility. The County or its
representatives shall have the right to go upon and inspect the
Premises at all reasonable times and shall have the right to post
and keep posted thereon notices of nonresponsibility or such
other notices which the County may deem to be proper for the
protection of The County's interest in the Premises. Lessee
shall, before the commencement of any work which might result in
any such lien, give to the Co\mty written notice of its intention
to do so in sufficient time to enable posting of such notices.
LAJ-7*S77I.V5 13 ouitm
ARTICLE 9
SECURITY
Lessee shall be responsible for and shall provide for the
security of the Premises, and the County shall have no
responsibility therefor. Lessee shall constmct and maintain
fences, gates, walls and/or barriers on the Premises In a manner
designed, in the County's judgement, to prevent unauthorized
access to the Premises. All plans for such fences, gates, walls
and/or barriers must be submitted to and approved by the Coxinty
prior to constmction. In the event the northerly boundary of
the Premises is adjusted for the constmction of the easterly
prolongation of Faraday Road, Lessee shall move, at Lessee's sole
expense, said security fencing, gates, walls and/or barriers
within thirty (30) days following the completion of Fara<!lay Road
along the northerly boundary of the Premises.
ARTICLS 10 ' '
IMPROVEMENTS f fEStSOttXL PR0PBRT7}
FIXTURES I MINOR ALTERATIONS
10.1 ^taprov#!nent^. Lessee may, at Lessee's o%m expense,
from time to time make such nonstmctural (whether permanent or
temporary) alterations, replacements, additions, changes, or
iirprovements (collectively referred to in this Lease as
" laqprovements") to the Premises as Lessee may find necessary or
convenient for its purposes; provided. luswgscfix; the value of th*
Premi8e»><-l«^iii3iCft^ttreby^^dia4|iil||}^ and further provided that,
with respect; to. .axi3t..nate^^ non-structural-"'
Improvements, no such Improvements may be nade without obtaining
the prior wrlttep„ appr.QvaX«o£ the consent shall not
be unreasoziably withheld. In no event shall Lessee maike or cause
to be made any penetration into or through the roof or floor of
any stmcture on the Premises or make any other stmctural
changes in or on the Premises without obtaining the prior written
approval therefor of the County, which approval shall not be
unreasonably withheld. Lessee shall at all times conduct its
constmction operations so that such operations do not Interfere
with the normal operation and use of the Airport by the County,
the public and other persons and organizations entitled to use of
the same.
10.2 Constmction Requirements. All Inprovements to be made
to the Premises shall be made under the supervision of a
conpetent architect or licensed stmctural engineer and made in
conformity with any present or future ALP and Aviation Area
Development Stamdards which are or may be adopted by the Board
and the FAA, and with plans and specifications approved in
writing by the County before commencement of any work. In
connection therewith. Lessee shall provide a minimum of three (3)
sets of working drawings or plans showing the planned
Improvements, for the County's approval, prior to commencing
work. All work with respect to any Improvements must be done in
LA3-79S77I.VJ 14
a good and wor)cmanlike manner, commenced within ninety (90) days
following receipt of approval therefor from the County, and
diligently prosecuted to completion to the end that the Premises
shall at all times be a conplete unit except during the period of
work. Upon completion of such work. Lessee shall have recorded
in the office of the' San Diego the County Recorder a Notice of
Conpletion, as required or permitted by law, and Lessee shall
deliver to the County, within ten (10) days after conpletion of
said work, a copy of the Notice of Occupancy and the building
permit with respect thereto. Within sixty (60) days following
conpletion of an Inprovement, Lessee shall provide the County
with two (2) conplete sets of "as-buiit" plans of such
Inprovement. Upon the expiration or earlier termination of this
Lease, such Inprovements shall not be removed by Lessee but shall
become a part of the Premises. Any such Inprovements shall be
performed and done strictly in accordance with the laws and
ordinances relating thereto.
10.3 The Covmf.v*», rr^ffi* jjy^^yrff,\t^ Lessee shall reimburse
the County for all actual and docxomented reasonable out-of-pocket
costs and eaqpenses (including, without limitation, any architect
or engineer fees) incurred by the County in approving or
disapproving Lessee's plams for Inprovements. Lessee shall be
liable for and shall indemnify and defend the County from amy
claim, demand, lien, loss, damage or e^qiense, including
reasonable attomeys' fees and costs, arising from Lessee's
constmction or installation of any Inprovements permitted under
this Article.
10.4 Personal Property. Sxibject to the provisions of the
following Section 10.5, "FixtTires", all of Lessee's trade
fixtures, fumiture, fumishings' signs and other personal
property not permamently affixed to the Premises (collectively
referred to as "Personal Property" in this Lease) shall remain
the property of Lessee. Lessee shall, at its expense,
immediately repair any damage occasioned to the Premises by
reason of the removal of any such Personal Property.
10.5 Fixtures. All Inprovements constmcted by Lessee, or
existing on the Premises on the Effective Date, together with all
other fixtures, excepting Lessee's trade fixtures, permanently
attached to the Premises (collectively referred to in this Lease
as "Fixtures") shall become the property of the County upon
expiration or earlier termination of this Lease, Notwithst£uading
the foregoing, the County may require Lessee to remove any
Fixtures at Lessee's own expense upon termination of this Lease.
Any damage to the Premises occasioned thereby shall be repaired
by Lessee in a good and worikmanllke manner and the Premises shall
be left in as good order and condition as when Lessee took
possession thereof, reasonable wear and tear and damage by the
elements excepted. In the event Lessee does not remove any
Fixtures following direction by the County, the Cotmty may
remove, sell or destroy the same, and Lessee shall pay to the
U3-7WI.V2 15 OVIIrt?
County the reasonable cost of such removal, sale or destmction,
together with the reasonable cost of repair of damages to the
County's property or improvements or to the Premises resulting
therefrom. •
10.6 Signs and Liqhtln<y. Lessee shall not constmct nor
permit the erection of any signs on the Premises without the
prior written approval of the Coimty. Lessee shall submit
sketches of proposed signs to the County for approval showing
size, materials, colors and location. Such signs must conform to
the standards contained in Exhibit C (MCCLELLAN-PALOMAR AIRPORT
INDUSTRIAL AREAS DEVELOPMENT STANDARDS) and to any laws or
ordinances of governmental agencies having jurisdiction over the
Premises. All. exterior lighting on the Premises must conform to
the standards contained in Exhibit D (MCCLELLAN-PALOMAR 'AlIRPORT
INDUSTRIAL AND AVIATION AREAS PERFORMANCE STANDARDS) and tO any
laws or ordinances of govemmental agencies having jurisdiction
over the premises. ' ' I
10.7 Minor Alterationa. Notwithstanding the foregoing
provisions of this Article, Lessee may make, without obtaining
the prior approval of the County, minor alterations and
improvements ("Minor Alteration") to the Premises that do not
require a building permit, or which involve only the repair,
replacement, or reconfiguration of non-load bearing partition
walls or Fixtures, and which do not penetrate into or throu^ the
roof or floor of any stmcture on the Premises, and which do not
involve the constmction of any new stmctures on the Premises«v
The County shall be the sole judge of whether or not ajay
alteration or inprovement is a Minor Alteration.
ARTICLE 11
TAXES, ASSESSMENTS AND FEES
11.1 Responsibility for Payment of Taxes and Aeaeasinenf.
The County shall not be obligated to pay any taxes or assessments
accming against Lessee on the Premises or any Interest of Lessee
therein before, during or after the Term, or any extension
thereof; all such payments shall be the sole responsibility of
Lessee. In addition. Lessee shall be solely responsible for
payment of any taxes or assessments levied upon any Improvements,
Fixtures or Personal Property located on the Premises, to the
extent that such taxes or assessments result from the business or
other activities of Lessee upon, or in connection with, the
Premises.
11.2 Definition of "Taxes". As used herein, the term
"taxes" means all taxes, govemmental bonds, special assessments,
Mello-Roos assessments, charges, rent income or transfer taxes,
license and transaction fees, including, but not limited to,
(i) any state, local, federal, personal or corporate income tax,
or any real or personal property tax, (il) any estate inheritance
taxes, (iii) any franchise, succession or trsmsfer taxes.
LA3-7*S77l.V: 16 Duwn
(iv) interest on taxes or penalties resulting from Lessee's
failure to pay taxes, or (v) any increases in taxes attributable
to the sale of Lessee's leasehold interest in the Premises.
11.3 Creation of Poatimaeorv Interest. Pursuant to the
provisions of Revenue and Taxation Code Section 107.6, Lessee Is
hereby advised that the terms of this Lease may result in the
creation of a possessory interest. If such a possessory Interest
is vested in Lessee, Lessee may be subjected to the payment of
real property taxes levied on such interest. Lessee shall be
solely responsible for the payment of any such real property
taxBB. Lessee shall pay all such taxes when due, and shall not
allow any such taxes, assessments or fees to laecome a lien
against the Premises or any improvement thereon; provided.
however. nothing in. this Lease shall be deemed to prevent or
prohibit Lessee from contesting the validity of any such tax,
assessment or fee in a manner authorized by law. |
ARTICLB 12 ' I
REPAIRS I MAINTENANCE
12.1 Acceptance o£ Prenleee. Lessee acknowledges that
Lessee has made a thorough inspection of the Premises prior to
the Effective Date of this Lease, and that it accepts the '
Premises as of the Effective Date in their condition at that
time; provided, however, that the foregoing shall not be
constmed as the acceptance by Lessee of any liabilities for Pre-
Closing Leased Facilities Environmental Conditions (as defined in
the Purchase Agreement) . Lessee further ac)cnowledges that the
Coimty has made no oral or written representations or warranties
to Lessee regarding the condition of the Premises, and that
Lessee is relying solely on its inspection of the Premises with
respect thereto.
12.2 Lessee's Repair and Maintenance Oblioatlone, Lessee
shall at all times from and after the Effective Date, at its own
cost and expense, repair, maintain in good ajid tenantable
condition and replace, as necessary, the Premises and every part
thereof, including, without limitation, the following as
applicable: the roof; the heating, ventilation and air
conditioning system; mechanical and electrical systems; all
meters, pipes, conduits, equipment, conponents and facilities
(whether or not within the Premises) that supply the Premises
exclusively with utilities (except to the extent the appropriate
utility company has assumed these duties); all Fixtures and other
equipment installed in the Premises; all exterior and interior
glass installed in the Premises; all signs, locking and closing
devices; all interior window sashes, casements and frames; doors
and door frames (except for the painting of the exterior surfaces
thereof); floor coverings; and all such items of repair,
maintenance, alteration, inprovement or reconstmctlon as may be
required at any time or from time to time by a govemmental
agency having jurisdiction thereof. Lessee's obligations under
LAJ-7«T7I.V3 17 wivn
this Article shall apply regardless of whether the repairs,
restorations and replacements are ordinary or extraordinary,
foreseeable or unforeseeable, capital or noncapital, or the fault
or not the fault of Lessee, its agents, employees, invitees,
visitors, sublessees or contractors. All replacements made by
Lessee in accordance with this Section shall be of like size,
kind and quality to the items replaced and shall be subject to
prior written approval by the County. Upon surrender of the
Premises, Lessee shall deliver the Premises to the County In good
order, condition and state of repair, but shall not be
responsible for damages resulting from ordinary wear and tear.
Lessee shall provide for trash removal, at its esqiense, and shall
maintain all trash receptacles and trash areas in a clean,
orderly and first-class condition. The County shall have no
responsibility or liability for any of the obligations set forth
in this Section.
12.3 Leasee's Failure to Maintain. If Lessee refuses or
neglects to repair, replace, or maintain the Premises, or any
part thereof, in a maimer reasonably satisfactory to the County,
the County shall have the right, upon giving Lessee reasonable
written notice of its election to do so, to nake such repairs or
perform such malntenzmce on behalf of and for the account of
Lessee. If the County makes or causes any such repairs to be
made or performed. Lessee shall pay the cost thereof to the
County promptly upon receipt of an invoice therefor wit Interest
at the rate specified in Section 16.8, "Interest" front the
date(8) of the County's payments.
12.4 Right to Enter. Lessee shall permit the Coimty, or its
authorized representatives, to enter the Premises at all times
during usual business hours to inspect the same, and to perform
any work thereon (a) that may be necessary to cooply with any
laws, ordinances, mles or regulations of any public authority,
(b) that the County may deem necessary to prevent waste or
deterioration in connection with the Premises if Lessee does not
make, or cause to be made, such repairs or perform, or cause to
be performed, such work promptly after receipt of written demand
from the County, and (c) that the County may deem necessary in
conjiectlon with the expansion, reduction, remodeling, protection
or renovation of any the County-constmcted or owned facilities
on or off of the Premises, or at the Airport. Nothing contained
in this Section shall imply any duty on the part of the County to
do any such work which, under any provision of this Lease, Lessee
may be required to do, nor shall the County's performance of any
repairs on behalf of Lessee constitute a waiver of Lessee's
default in failing to do the same. No exercise by the County of
any rights reserved to it by this Section shall entitle Lessee to
any compensation, damages or abatement of rent from the County
for any injury or inconvenience occasioned thereby.
12.5 County Not Obligated to Repair or Maintaim Leasee's
Waiver of Califomia Civil Code Section 1942. To the extent that
LA),795771.V} 18 OUltm
any remedies specified in this Lease conflict or are inconsistent
with any provisions of California Civil Code Section 1942, or any
successor statute thereto ("CC S1942"), the provisions of this
Lease shall control. Lessee specifically waives any right it may
have pursuant to CC §1942 to effect maintenance or repairs to the
Premises and to abate the costs thereof from rent due to the
County under this Lease.
ARTICLB 13
Iin)EMNIT7 AND INSURANCS
13.1 Indemnity bv Leasee. Except for indemnification
related to Contaminants (as defined in the Purchase Agreement) ,
Leachate (as defined in the Purchase Agreement}* and Landfill Gas
(as defined in the Purchase Agreement), with respect to which the
provisions of the Purchase Agreement shall govem, the County
shall not be liedsle for, and Lessee (and if applicable, each of
its general partners) and its successors, assigns and guarantors
shall defend, indemnify, protect and hold harmless the Coimty,
its employees, representatives, agents, consultsmts, officers,
supervisors, successors and assigns from and against any and all
claims, demands, liability, judgments, awards, fines, mechanics'
liens or other liens, losses, damages, expenses, charges or costs
of any kind or character, including actual attorneys' fees and
court costs (collectively referred to as "Claixos"), arising from
or in connection with, or caused by, directly or Indirectly,
(1) any breach or default by Lessee of its obligations under this
Lease (excluding therefrom any Retained Liability (as defined in
the Purchase Agreement), (11) any act, omission or negligence of
Lessee or any subtenant of Lessee, or their respective
contractors, licensees, invitees, agents, servants or enployees,
(ill) any use of the Premises, or any accident, injury, death or
damage to any person or property occurring in, on or about the
Premises, or any part thereof, or any service delivery facilities
or any other portions of the Property used by Lessee, and
(iv) any labor dispute involving Lessee, its enployees,
contractors or agents, including, without limitation, Claims
caused by the concurrent negligent act or omission, whether
active or passive, of the County or its agents; providedr
however. Lessee shall have no obligation to defend or indemnify
the County from Claims caused solely by the gross negligence or
willful or criminal act of the County or its agents;
13.2 Insurance. Without limiting Lessee's indemnification
obligations to the County, Lessee shall provide and maintain,
during the Term and for such other period as may be required in
this Lease, at its sole expense, insurance in the amoimts and
form specified in Exhibit E (INSURANCE REQUIREMENTS) attached
hereto.
13.3 TT^»^«.^JJ4 bv the County. Except for indemnification
related to Contaminants (as defined in the Purchase Agreement),
Leachate (as defined in the Purchase Agreement) and Landfill Gas
LA3-7«J771.V1 19 oi/iim
(as defined in the Purchase Agreement), vlth respect to which the
provisions of the Purchase Agreement shall govem. Lessee shall
not be liaOsle for, and only to the extent pemiitted by applicable
law, the County shall defend, indemnify, protect and hold
harmless Lessee, its enployees, representatives, agents,
consultants, officers, supervisors, successors and permitted
assigns from emd against any and all Claims arising from or in
connection with, or caused by, directly or indirectly, (1) any
breach or default by the County of its obligations under this
Lease, excluding therefrom any Assumed Liabilities (as defined in
the Purchase Agreement) and any items with respect to which
Lessee or Allied (as defined below) is required under the
Purchase Agreement to assume or indemnify the County; and (11)
any gross negligence or willful or criminal act of the Coimty or
its agents; provided, however, the County shall have no i i
obligation to defend or indemnify Lessee from Claims caused
solely by the gross negligence or willful or criminal act of the
Lessee or its agents. 'I : 'i
ARTICLB 14
CONTAMINANTS, LEACHATB AND ZiANDPILL GAS
14.1 Environmental Laws - Definition. As used in this
Section, the term "Envirozunental Laws" has the meaning set forth
in the Purchase Agreement.
14.2 rontaminants. Leachate and Landfill Gae, - Definitlone.
As used in this Section, the terms "Contaminan.taili» "Leachate" and
"Landfill Gas" have the meanings set forth in ^he'fpuxcham^
Agreement,
14.3 Lessee's Representations and Warranties. Lessee
represents and warrants that, during the Term or any extension
thereof, or for such longer period as may be specified in this
Lease, Lessee^shalljcoiqgljfij^ltl^ thl8«
Section unIe8S^.tji*;cw«^ approved in writing by the
County's LeasaT Administrator:
a. Lessee:.mlSIS^%t^'cjM^ penidF a
Leachate or Landfill'; Gas'to l3« brought f kept or used In or about
the Premises by Lessee, its agents, enployees, sublessees,
assigns, contractors or invitees, except as permitted by
Environmental Laws and except as required by Lessee's permitted
use of the Premises, as described in Section 6.1 (PERMITTED
USES).
b. Any handling, transportation, storage, treatment
or usage by Leasee of Contaminants, Leachate or Landfill Gas that
is to occur on the Premises following the Effective Date shall be
in conpliance with all applicable Environmental Laws/^
c. Any leaks, spills, release, discharge, emission or
disposal of Contaminants, Leachate or Landfill Gas which may
LA3-7<S77I.V7 20 OVltm
occur on the Premises following the Effective Date shall be
promptly and thoroughly cleaned and removed from the Premises by
Lessee at its sole expense, and any such discharge shall be
promptly reported in writing to the County, and to any other
appropriate governmental regulatory authorities;
d. No friable asbestos shall be constmcted, placed
on, deposited, stored, disposed of, or located by Lessee in the
Premises or on the Property;
e. No underground inprovements, including but not
limited to treatment or storage tanks, or water, gas or oil wells
shall be located by Lessee, on the Premises or on the Property
without the County's prior written consent, which consent shall
not be unreasonahly withheld; '
I
f. Lessee shall conduct and conplete all J
investigations, studies, sanpling, and testing procedures; and all
remedial, removal, and other actions necessary to clean up ^xh
remove all Contaminants, Leachate and lAndfill Gas on, from, or
affecting the Premises in accordance with all applicable
Environmental Laws and to the satisfaction of the County, except
with respect to Pre-Closing Leased Facilities Environmental
Conditions;
g. Lessee shall pronptly supply the County with
copies of all notices, reports, correspondence, and submissions
made by Lessee to the United States Environmental Protection
Agency, the United Occupational Safety and Health Administration,
and any other local, state or federal authority which requires
submission of any information conceming environmental matters or
hazardous wastes or substemces pursusmt to applicable
Environmental Laws;
h. Lessee shall pronptly notify the County of any
liens threatened or attached against the Premises pursuant to any
Environmental Law. If such a lien is filed against the Premises,
then, within the earlier of (1) twenty (20) days following such
filing, or (ii) before any govemmental authority commences
proceedings to sell the Premises pursuant to the lien. Lessee
shall either: (a) pay the claim and remove the lien from the
Premises, or (b) fumish either (1) a bond or cash deposit
reasonably satisfactory to the County in an amount not less than
the claim from which the lien arises, or (11) other security
satisfactory to the County in an amount not less than that which
is sufficient to discharge the claim from which the lien arises;
and
1. At the end of this Lease, Lessee shall surrender
the Premises to the County free of any and all Contaminants,
Leachate and Landfill Gas and in conpliance with all
Environmental Laws affecting the Premises, except with respect to
Pre-Closing Leased Facilities Environmental Conditions.
LA3-79377I.V: 21 OUltm
14.4 Jy^t^f ficationa Regarding Contaminants. Leaehatf yTl4
Landfill Gas. The indemnification responsibilities of Lessee
and the County relating to Contaminants, Leachate and Landfill
Gas shall be as set forth in the Purchase Agreement.
14.5 Remedies Cuamlativei Survival. The provisions of this
Article shall be in addition to any and all obligations and
liabilities Lessee may have to the County at common law, and any
remedies and the environmental indemnities provided for in this
Article shall survive the expiration or termination of this
Lease, the transfer of all or any portion of the Premises or of
any interest in this Lease, and shall be govemed by the laws of
the State of Califomia.
14.6 Inspection• The County and the County's agents,
servants, and enployees including, without limitation, legal
counsel and environmental consultants and engineers retained by
the County, may (but without the obligation or duty so to do), at
any time and from time to time, on not less than ten (10)
business days' notice to Lessee (except in the event of an
emergency in which case no notice shall be required) , inspect the
Premises to determine whether Lessee is conplylng with Lessee's
obligations set forth in this Article, and to perform
environmental inspections and sanplings, during regular business
hours (except in the event of an emergency) or during such other
hours as the County and Lessee may agree. If Lessee is not in
conpliance, the Coimty shall have the right, in addition to the
County's other remedies available at law and in equity, to enter
upon the Premises immediately and take such action as the County
in its sole judgment deems appropriate to remediate any actual or
threatened contamination caused by Lessee's failure to comply.
The County will lise reasonable efforts to minimize interference
with Lessee's use of Premises but will not be liable for any
interference caused by the County's entry amd remediation
efforts. Upon conpletion of any sanpling or testing the County
will (at Lessee's expense if the County's actions are a result of
Lessee's default under this Section) restore the affected area of
the Premises from any damage caused by the County's sampling and
testing.
ARTICLB 15
ASSIGNMENT, SUBLEASING AND ENCUMBRANCING
15.1 The County's Consent to Transfer Reauired. Lessee
shall not voluntarily or involuntarily assign, sublease,
mortgage, encumber, or otherwise transfer (collectively, a
"Transfer") all or any portion of the Premises or its interest in
this Lease ^di.j^^'tfthi^ Co^invj^B pz'ior vrrltten consent, which
consent ahall not be unreasonably'wltfi^ however,
that Lessee ac]cnowledges and agrees that the County's denial of
consent for a reason listed in Section 15.2.2, "Denial of Consent
to Transfer" shall conclusively be deemed reasonable). The
County may withhold its consent until Lessee has complied with
LA3.79577I.V: 22 0t/|tff7
the provisions of the following Sections of this Article. Any
attempted Transfer without the County's consent shall be void and
shall constitute a material breach of this Lease. As used
herein, the term "Transfer" shall include (i) an arrangement
(including without limitation management agreements, concessions,
and licenses) that allows the use and occupancy of all or part of
the Premises by anyone other than Lessee, and (11) the transfer
of any stock or interest in Lessee as a corporation, partnership
or joint powers authority which, in the aggregate, exceeds forty-
nine percent (49%) of the total ownership interest in Lessee.
15.2 The County's Eleetion- Lessee's request for consent to
any Transfer shall be acconpanied by a written statement setting
forth the details of the proposed Transfer, includ'ing (1) .the
name, address, business, business history amd financial ^iondltion
of the proposed assignee or sublessee (collectively,
"Transferee") sufficient to enable the County to determine the
financial responsibility and character of the Transferee^ (llj a
copy of the proposed assignment or sublease and the financial
details of the proposed Transfer (including the duration, the
rent and any security deposit payable under an assignment or
sublease), (ill) the Transferee's proposed use of the Premlpes,
and (iv) any other related information which the County may
reasonably require. The County shall have the right: (a) to
withhold consent to the Transfer, if reasonable; (b) to grant
consent; or (c) to terminate this Lease for the portion of tha.
Premises affected by any proposed subleasa or assignment, in
which event the County may enter into a lease dlresely with thai;
proposed sublessee or assignee.
15.2.1 Consent to Transfer. The County's consent to
an assignment or sublease will not be effective until (1) a fully
executed copy of the instmment accomplishing a Transfer
("Transfer Instrument") has been delivered to the County,
including, without limitation, a copy of any tmst deed
encumbering Lessee's leasehold and the note secured thereby, (ii)
in the case of a siiblease, the County has received from Lessee an
original of the executed sublease (which sublease must contain
the provisions described in Exhibit F (MCCLELLAN-PALOMAR AIRPORT •
TEE COUNTY OF SAN DIEGO REQUIRED SUBLEASE PROVISIONS)) and.
(ill) in the case of am assignment, the Coimty has received a
written instrument in which the assignee has assumed and agreed
to perform all of Lessee's obligations under this Lease. Any
rights acquired by a Transferee pursuamt to any Transfer
Instrument shall be subject to each and every covenant, condition
and restriction set forth in this Lease amd to all of the rights
and interest of the County in this Lease, except as may be
otherwise herein specifically provided in this Article. In the
event of any conflict between the provisions of this Lease and
the provisions of any Transfer Instnmient, the provisions of this
Lease shall control.
LAJ.7*S771.VJ 23 OUItlV
15,2.2 Denial of Consent to Transfer. If the County
denies its consent to a proposed Transfer, and if Lessee shall so
request in writing, the County shall provide to Lessee a
statement of the basis on which the County denied its consent
within a reasonable time after the receipt of Lessee's notice.
Lessee shall have the burden of proving that the CountvVs consent
to the proposed Transfer was withheld unreasonably; atilalllnarden
may be satisfied If the County falls to provide a statement of a
reasonable basis for withholding'its consent within a reasonable
time after Lessee's reguest therefor. Notwithstanding amy of the
foregoing provisions of this Section to the contrary, the
following shall be deemed to be reasonable groimds for the County
to withhold consent to a Transfer for purposes of conpliance with
Califomia Civil Cooe Section 1951.4: '
I
(a) Lessee or any of its successors, assjigns or
sublessees are in default as to any term, covenant or condition
of this Lease, whether or not notice of default has been glveh by
the County.
(b) The prospective assignee or sublessee has not
agreed in writing to keep, perform and be bound by all of the
terms, covenants and conditions of this Xisase.
(c) The County reasonably objects to the
financial condition of the prospective assignee or sublessee.
(d) All of the terms, covenants amd conditions of
the assignment or sublease, including any consideration therefor,
have not been disclosed in writing to the County.
(e) Any constmction of inprovements commenced by
Lessee has not been completed to the satisfaction of the County
unless the assignee or sublessee assumes, to the reasonaQsle
satisfaction of the County, the obligation to complete such
constmction.
(f) Nonpayment of the Transfer Fee described
below.
If Lessee believes that the County has unreasonaUDly withheld its
consent to a Transfer, Ijessee's sole remedy will be to seek a
declaratory judgment that the County has unreasonaOjly withheld
its consent or an order of specific performance or mandatory
injunction requiring the County's consent. Lessee will not have
any right to recover damages or to terminate this Lease.
15.3 ^cumbering the Leasehold Estate with a Mortgage. Any
Transfer which consists of the grant of a deed of tmst or
similar encumbrance (such encumbrances are collectively referred
to herein as a "Mortgage") by Lessee to secure the beneficial
interest of a lender ("Beneficiary") in the Premises or Lessee's
interests under this Lease, shall be subject to all of the
LA3.7«S771 .VI 24 OI/lt/97
provisions of this Article pertaining to the conclusion smd
approval of other Transfers, and shall also be subject to the
additional terms and conditions set forth below:
(a) No Mortgage granted by Lessee shall encumber the
fee title to the Prenises at any time;
(b) Immediately following the recordation of any
Mortgage affecting the Premises or Lessee's interest in this
Lease, Lessee, at Lessee's expense, shall cause to be recorded in
the Office of the Recorder, San Diego the County, Califomia, a
written request for delivery to the County of a copy of any
notice of default and of any notice of sale under such Mortgage
as provided by the statutes of the State of Califomia pertaining
thereto.
15.3.1 Curable and Noncurable Defaults nnd^y ^^^^
Lease? the County's Covenant of Forbearance. Where the County
has consented to a Mortgage encumbering Lessee's leasehold as
required pursuant to this Article, then the County,
notwithstanding anything to the contrary in this Lease, shall not
exercise its remedies under this Lease for Lessee's default
during the periods specified in this Section so long as the
Beneficiary of such Mortgage taUces the following actions:
a. If a curaOsle breach of the Lease occurs, a,.
Beneficiary shall have the right to begin foredoswre ^proceedings
and to obtain possession of Lessee's Interest in "thN»i«peeml8ee/«~so
long as Beneficiary complies with the conditions set forth below:
(1) Cures Lessee's default within the saune time
period allotted to Lessee for cure of such default, plus am
additional thirty (30) days (except that only ten (10) additional
days shall be permitted in the case of a default in the payment
of money from Lessee to the County) .
(2) Notifies the County, within ten (10) days
following receipt of the County's notice of Lessee's default, of
its intention to effect this remedy;
(3) Institutes immediate steps or legal
proceedings to foreclose on or recover possession of the
leasehold, and thereafter prosecutes the remedy or legal
proceedings to conpletion with due diligence and continuity; and
(4) Keeps and performs, during the period until
the leasehold shall be either (1) sold upon foreclosure pursuamt
to the Mortgage, or (ii) released or reconveyed pursuant to the
Mortgage (such period being referred to hereinafter as the
"Foreclosure Period"), all of the covenants and conditions of
this Lease, including, without limitation, payment of all rent,
taxes, assessments, utility charges and insurance premiums
IA3.7^S77I.VJ 25 ouiim
required by this Lease to be paid by Lessee and which become due
during the Foreclosure Period.
b. If a noncurable breach of the Lease occurs, a
Beneficiary shall have the right to begin foreclosure proceedings
and to obtain possession of Lessee's interest in the Premises, so
long as Beneficiary conplies with the conditions set forth below:
(1) Notifies the County, within ten (10) days
after receipt of the County's notice of Lessee's default, of its
intention to effect this remedy;
(2) Institutes immediate steps or legal
proceedings to foreclose on or recover possession of the
leasehold, and thereafter prosecutes the remedy or legal
proceedings to completion with due diligence and continuity; and
(3) Keeps and performs, during the Foreclosure
Period, all of the covenants and conditions of this Lease
requiring the payment of money, including, without limitation,
payment of all rent, taoces, assessments, utility charges and
insurance premiums reguired by this Lease to be paid by Lessee
and which become due during the Foreclosure Period.
c. If Lessee falls to cure amy curable default
within the time period allowed for such cure in this Lease, no
cure by a Beneficiary of any such default in the manner allowed
under this Section shall reinstate Lessee in good stamding under
this Lease. If, following expiration of the cure period, if any,
applicable to Lessee, the Beneficiary shall fall or refuse to
con^ily with any or all of the conditions of this Section
applicable to Lessee's default, including falling to
expeditiously obtain title to Lessees'K leasehold, then the County
shall be released from its covenant cf forbearance hereunder, and
may immediately terminate this Lease.
15.3.2 Tranefer of Lcaachold Estatet the County's
Potion to Purchase. Any Beneficiary who acquires title to the
leasehold estate shall immediately provide the Coimty with
written notice of such transfer. Notwithstanding amy provision
of this Section to the contrary, following transfer of the
leasehold estate to a Beneficiary in any manner, the County shall
have the option to purchase all right, title and interest in and
to the leasehold directly from the Beneficiary. The purchase
price shall be equal to the unpaid principal balance due on the
note or notes formerly secured by such Mortgage, plus tmstee's
fees and costs of sale, if any, but excluding (1) amy fees,
penalties or late charges assessed by Beneficiary against Lessee,
and (ii) any rent or other payments made by Beneficiary under the
terms of the Lease. The County may exercise such option to
purchase by delivering written notification thereof to a
Beneficiary at any time within thirty (30) days following the
LA3-79J77I.VJ 26 OI/ltrt7
County's receipt of written notification of the Beneficiary's
acquisition of title to the leasehold.
a. Should the County elect to not exercise its
option to purchase the leasehold within the period described
above, then, subject" to the provisions of Sections 15.4,
"Transfer fee," 15.5, "No Release of Lessee," and 15.6, "No
Merger," below, and so long as the Beneficiary shall have
observed all of the conditions of Section 15.3.1, above, the
following breaches, if any, relating to the prior lessee shall be
deemed cured: (1) attachment, execution of or other judicial
levy upon the leasehold estate, (11) assignment of creditors of
Lessee, (lil) judicial appointment of a receiver or similar
officer to take possession of the leasehold estate or the
Premises or (iv) filing any petition by, for or against Lessee
under any chapter of the Federal Ban)cmptcy Code. Any further
transfer of the leasehold estate, however (whether by a i | , ,
Beneficiary or by a third-party bidder acquiring the estate at a
foreclosure sale), shall be subject to the following conditions:
(1) The provisions of Sections 15.1, "The
County's Consent to Assignment Required," and 15.2, "The County's
Election," above, shall apply to such further Transfer, and the
County's consent shall be required to such further Transfer; and
(2) By its acceptance of the leasehold estate,
the Transferee of such further Tramsfer assumes this Leaaavas to
the entire leasehold estate and covenants with-the Countt-y-^o be-e
bound hereby.
15.3.3 Article Controlling. In the event of any
conflict between the provisions of this Article and any other
provision of this Lease, this Article shall control.
15.3.4 Failure to Give Notlee. Except as expressly
set forth in this Article, the County shall have no obligation to
amy Beneficiary or to give any notice to any Beneficiary, and the
County's failure to provide any Beneficiary with any notice of
any default hereunder shall not create amy right or claim against
the County on behalf of Lessee or amy Beneficiary.
15.4 Transfer Fee. If the County is requested to consent to
a Transfer hereunder. Lessee shall pay all the County's
attorneys' fees, plus a nonrefundable fee of $750 ("Transfer
Fee") to reimburse the County or the County's agent for costs and
expenses Incurred in connection with such request. The Tramsfer
Fee shall be delivered to the County concurrently with Lessee's
request for consent.
15.5 No Release of Lessee. No permitted Transfer shall
release or change Lessee's primary liability to perform all
obligations of Lessee under this Lease, except to the extent the
Lease is tenninated as described above. The County's consent to
LA3.7V577I.V] 27 Ottltm
one Transfer shall not be deemed to inply the County's consent to
any subsequent Transfer. If Lessee's Transferee defaults vndex
this Lease, the County may proceed directly against Lessee
without pursuing remedies against the Tramsferee. The County may
consent to subsequent assignments or modifications of this Lease
by Lessee's Transferee, without notifying Lessee or obtaining its
consent, and such action shall not relieve Lessee's liaibllity
under this Lease.
15.6 No Merger. No merger shall result from a Tramsfer
pursuant to this Article, Lessee's surrender of this Lease, or a
mutual cancellation of this Lease in any other manner. In amy
such event, the County may either terminate any or all subleases
or succeed to the intt'rest of Lessee thereunder.
I
15.7 Approval of Temporary er Limited Activities bv, the
County. Notwithstanding any provision of this Article to the
contrary, the County, may, at his or her sole discretion,' anidi
without charging a Transfer Fee, give written authorization for
the following activities on the Premises: (1) activities of a
tenporary nature, not to exceed one hundred twenty (120) calendar
days, and (11) activities of a limited nature which do not exceed
ten (10) hours per week. Lessee shall maintain, on am approved
the County form, a listing of all such activities approved by the
County, stating the nature, duration amd other relevant matters
regarding such activities, and shall maike such form available to
the County for inspection upon request. Nothing herein shaU.1
relieve Lessee from its responsibilities under this Lease, and
Lessee shall be responsible for insuring that any such activity
approved by the County conplies with all of the provisions of
this Lease. Any such tenporary or limited activity shaill be
subject to immediate termination upon delivery of written
notification thereof from the County.
ARTICLB 16
DEFAULTS BY LESSBB} THB COUNTY'S REMEDIES
16.1 Events of Default. The occurrence Of any of the
following shall constitute a default by Lessee and a breach of
this Lease:
(a) Failing or refusing to pay any amount due to the..
County when due in accordamce with the provisions of this Lease;
(b) Falling or refusing to occupy and operate the
Premises in accordance with the provisions of this Lease;
(c) Falling or refusing to perform fully and pronptly
any covenant or condition of this Lease, other than those
specified in subparagraphs (a) and (b) aUbove, the breach of which
Lessee is capaible of curing after reasonable notice from the
County;
LA).7«5ni.Vl 2 8
(d) Maintaining, committing or permitting on the
Premises waste, a nuisance, or use of the Premises for an
unlawful purpose, or assigning or subletting this Lease in a
manner contrary to the provisions of this Lease;
^ - ' The occurrence of any of the events set forth in Section 19.1, "Right of Teimlnatlon," below.
16.2 HfiilsSfl, Following the occurrence of any of the
defaults specified in the preceding section, the County shall
give Lessee a written notice specifying the nature of the default
and the provisions of this Lease breached and demanding that
Lessee either fully cure each such default within the time period
specified in the subparagraphs below or quit the Premises and
surrender the same to the County: ~
(a) For nonpayment of any amount due to the County In
accordance with the provisions of this Lease, five (5) working
(b) For a curable default, a reasonable period not to
exceed ten (10) working days, provided> however, if such default
cannot be cured within said time period. Lessee shall be deemed
to have cured such default if Lessee so notifies the County In
writing, commences cure of the default within said time period
and thereafter diligently and in good faith continues with and'
actually conpletes said cure; amd
(c) For a noncurable default, the County, shall glve^K
Lessee a written notice specifying the nature of the default and
the provisions of this Lease breached and the County shall havew
the right to demand in said notice that Lessee, and any
subtenant, quit the Premises within five (S) working days.
To the extent permitted by applicable State law, the time periods
provided in this Section for cure of Lessee's defaults under this
Lease or for surrender of the Premises shall be in lieu of. amd
not in addition to, amy similar time periods described by
California law as a condition precedent to the commencement of
legal action against Lessee for possession of the Premises.
16.3 Tbe County's Riohta and Remediee. Should Lessee fail
to cure any such defaults within the time periods specified in
the immediately preceding Section, or fall to quit the Premises
as required thereby, the County may exercise any of the following
rights without further notice or demand of any kind to Lessee or
any other person, except as may otherwise be required by
applicable Califomia law:
(a) The right of the County to terminate thia Lease
and Lessee's right to possession of the Premises and to reenter
the Premises, take possession thereof and remove all persons
m3,7«577I.VJ 29 OUltm
therefrom, following which Lessee shall have no further claim on
the Premises under this Lease;
(b) The right of the County without terminating this
Lease and Lessee's right to possession of the Premises, to
reenter the Premises and occupy the whole or amy part thereof for
and on account of Lessee amd to collect any unpaid rents amd
other charges, which have become payadsle, or which may thereafter
become payable pursuamt to Civil Code Section 1951.4; or
(c) The right of the County, even though it may have
reentered the Premises in accordance with the immediately
preceding subparagraph (b) of this Section, to elect thereafter
to terminate this Lease and Lessee's right to possession'of the
Premises. '
Should the County have reentered the Premises under the '
provisions of subparagraph (b) of this Section, the County shkll
not be deemed to have terminated this Lease, the liability of
Lessee to pay rent or other charges thereafter accming, or
Lessee's liability for damages under any of the provisions
hereof, by amy such reentry or by any action, in unlawful
detainer or otherwise, to obtain possession of the Premises,
unless the County shall have notified Lessee in writing that it
has so elected to terminate this Lease and Lessee's right to
possession. Lessee further covenants that the service by the
County of any notice pursuamt to the unlawful detainer statutes
of the State of Califomia and the surrender of possession
pursuant to such notice shall not (unless the County elects to
the contrary at the time of, or at any time subsequent to, the
serving of such notice and such election is evidenced by a
written notice to Lessee) be deemed to be a termination of this
Lease. In the event of any reentry or taJting possession of the
Premises as aforesaid, the County shall have the right, but not
the obligation, at Lessee's expense, to remove therefrom (1) all
or any part of the buildings or stmctures placed on the Premises
by Lessee or its agents, and (11) any or all merchandise,
Fixtures or Personal Property located therein and to place the
same in storage at a public warehouse at the expense amd risk of
Lessee. The rights and remedies given to the County in this
Section shall be additional and supplemental to all other rights
or remedies which the County may have under laws in force when
the default occurs.
16.4 The CouptY'fl r^ffiBTfig Should the County terminate this
Lease and Lessee's right to possession of the Premises pursuant
to the provisions of subparagraph (a) or (c) of the immediately
preceding Section, the County may recover from Lessee as damages
any or all of the following:
(a) The worth at the time of award of any unpaid rent
that had been eamed at the time of such termination;
LAJ.7*3TTI.V1 30 OUltm
(b) The worth at the time of award of the amount by
which the unpaid rent that would have been eamed after
termination until the time of award exceeds the amount of such
rent loss Lessee proves could have been reasonaibly avoided;
(c) The worth at the time of award of the amount by
which the unpaid rent for the balance of the Term after the time
of award exceeds the amount of such rent loss that Lessee proves
could be reasonably avoided;
(d) Any other amount necessary to conpensate the.
County for all actual damages suffered by the County as a result
of Lessee's failure to perform its obligations under this Lease
or which in the ordinary course of things would be likely to
result therefrom, including, without limitation, amy costs or
expense incurred by the County in (1) retaking possession of the
Premises, Including reasonaQsle attomeys' fees therefor,
(11) maintaining or preserving the Premises after such default,
(ill) preparing the Premises for reletting to a new tenant,
including repairs or- alterations to the Premises for such
reletting, (iv) leasing commissions, amd (v) any other costs
necessary or appropriate to relet the Premises; and
(e) At the County's election, such other amounts In
addition to or in lieu of the foregoing as may be permitted from
time to time by the laws of the State of Califomia.
As used in subparagraphs (a) and (b) of tl^ls Seetlbn, the
"worth at the time of award" is conputed by allowing interest at
the maximum rate allowed by Califomia Law. As used in
subparagraph c of this Section, the "worth at the time of award*
is conputed by discounting such amoimt at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award
plus one percent (1%).
All rent, other than monthly Base Rent shall, for the
purposes of calculating any amount due under the provisions of
subparagraph c of this Section, be computed on the basis of the
average monthly amount thereof accming during the immediately
preceding sixty (60) month period, except that, if it becomes
necessary to compute such rent before such a sixty (60) month
period has occurred, then such rent shall be conputed on the
basis of the average monthly amount hereof accming during such
shorter period.
16.5 fixtures and Personal Property. In the event of
Lessee's default, all of Lessee's merchandise, Fixtures and
Personal Property shall remain on the Premises amd, continuing
during the length of said default, the County shall have the
right to take the exclusive possession of same and to use the
same free of rent or charge until all defaults have been cured
or, at its option, to require Lessee to remove same forthwith.
LA3-7»S77l.V2 31 Mtltm
16.6 Tbe County's s..^vT-|ty Interest. To secure Lessee's
perfOiHiance of any and all of Lessee's obligations under this
Lease, Lessee hereby grants the County an express first amd prior
contractual lien and security interest in Lessee's Fixtures and
Personal Property located on the Premises, and also upon all
proceeds of any insurance that may accme to Lessee by reason of
the destmction or damage such property. Lessee waives the
benefit of all exenption laws in favor of this lien and security
interest. This lien and security interest is given in addition
to the County's statutory lien and is cumulative with it. Upon
the occurrence of an event of default, these liens may be
foreclosed with or without court proceedings by public or private
sale, so long as the County gives Lessee at least fifteen (15)
days' notice of the time*amd place of the sale. The County shall
have the right to bfecome the purchaser if it is the highest
bidder at the sale. To perfect said security interest. Lessee
shall execute and deliver to the County such financing statements
required by the applicable Uniform Commercial Code as the County
may request.
16.7 Lessee'a Waiver. Notwithstanding anything to the
contrary contained in this Article, Lessee waives (to the fullest
extent permitted under law) any written notice (other than such
notice as this Article specifically requires) which amy statute
or law now or hereafter in force prescribes be given Lessee.
Lessee further waives any and all rights of redenption under amy
existing or future law in the event its eviction from, or
dispossession of, the Premises for any reason, or in the event
the County reenters and takes possession of the Premises in a
lawful manner.
16.8 Interest. Any amounts due from Lessee under the
provisions of this Lease which are not paid when due shall bear
interest at the rate of four percent (4%) per annum over the
discount rate charged from time to time by the Federal Reserve
Bank (San Francisco office), but not to exceed the maximum rate
which the County is permitted by law to charge.
ARTICLB 17
DEFAULTS BY THB COUNTYi REMEDIES
If the County shall neglect or fall to perform or observe
any of the terms, covenants, or conditions contained in this
Lease on its part to be performed or observed within thirty (30)
days after written notice of default or, when more than thirty
(30) days shall be required because of the nature of the default,
if the County shall fail to proceed diligently to cure such
default after written notice thereof, then the County shall be
liable to Lessee for any and all damages sustained by Lessee as a
result of the County's breach; provided, howevey. (a) except with
respect to the County's indemnification obligations and except if
the County defaults under this Lease by granting any interest in
the Premises to another party during the term hereof or by
1>J.7»S771.VJ 32 OUltm
entering the Premises, in either case in a manner not permitted
by this Lease (and in all of the foregoing situations described
in this ci'^"se (a), the "Net Income" limit described herein shall
not apply) , any money judgment resulting from amy default or
other claim arising under this Lease shall be satisfied only out
of Prepaid Rent, if during the Initial Term, amd, thereafter, out
of the Base Rent ("Net Income" for purposes of this Article
only), (b) no other real, personal or mixed property of the
County, wherever located, shall be subject to levy on any such
judgment obtained against the County, (c) if such Net Income is
insufficient to satisfy such judgment. Lessee will.not institute
any further action, suit, claim or demand, in law or in equity,
against the County for or on the account of such deficiency, and
(d) such neglect or failure shall not constitute consent by the
County for Lessee to perform or observe such terms, covenants or
conditions at the County's expense. Lessee hereby waives, to, the
extent permitted under law, amy right to satisfy said money • I
judgment against the County except from Net Income and agrees
that on any action for damages. Lessee is limited to recovering
its actual damages and may not recover any consequential or
punitive damages.
ARTICLB 18
ABANDONMENT
Lessee shall not vacate or abamdon the Premises at any time
during the term of this Lease. If Lessee shall.pbaaiilaway:. vaeaeaa
or surrender the Premises, or be dispossessed by process^'iolr'laarv
or otherwise, any Personal Property or Fixtures belonging.to
Lessee and left on the Premises shall, at the option of the
County, be deemed abandoned. In such case, the County may
dispose of said Personal Property and Fixtures in any manner
provided by Califomia law and is hereby relieved of all
liability for doing so. These provisions shall not apply if the
Premises should be closed and business temporarily discontinued
therein on account of strikes, lockouts, or similar causes beyond
the reasonable control of Lessee.
ARTICLE 19
BANKRUPTCY
19.1 Rjght of Termination. Should amy of the following
events occur, the County may terminate this Lease and any
interest of Lessee therein, effective with the commencement of
the event:
a. Proceedings are instituted whereby all, or
substantially all, of Lessee's assets are placed in the hands of
a receiver, tmstee or assignee for the benefit of Lessee's
creditors, and such proceedings continue for at least thirty (30)
days;
LA3-T»S771.V2 33 OUltm
b. Any creditor of Lessee institutes judicial or
administrative process to execute on, attach or otherwise seize
any of Lessee's merchandise. Fixtures or Personal Property,
located on the Premises and Lessee fails to discharge, set'aside
exonerate by posting a bond, or otherwise obtain a release of
such property within thirty (30) days; or
c. A petition is filed for an order of relief under
the Federal Bankmptcy Code or for an order or decree of
insolvency or reorganization or rearrangement under any state or
federal law, and is not dismissed within thirty (30) days.
Any assignee pursuamt to the provisions of any bankmptcy law
shall be deemed without further act to have assumed all of the
obligations of the Lessee under this Lease arisinef on or ifter
the date of such assignment. Any such assignee shall upon demand
execute amd deliver to the County an instrument confirming aixch
assunption. T '|
19*2 Rccmest for Information- Within ten (10) days after
the County's request therefor. Lessee shall provide the County
and any mortgagee or proposed mortgagee of the Coimty, as the
County shall specify, such financial, legal and business
information conceming any of the events described in this
Article as the County shall request.
ARTICLE 20
DAMAGE OR DESTRUCTION
20.1 fiajBUflltx. Should the Fixtures, Personal Property or
inprovements be damaged by flre, flood or any other peril, Lessee
shall restore such Fixtures, Personal Property or inprovements to
substantially the same condition as they were in immediately
preceding such damage or destmction. In the event of a total
destmction of the Premises so that the Premises are rendered
unusable, either party shall have the right to terminate this
Lease.
20.2 Constmction Provision^. In the event of amy
reconstmctlon of the Premises required of Lessee pursuant to
this Article, Lessee shall, to the extent of available insurance
proceeds, repair or rebuild such inprovements to substantially
the same condition they were in immediately preceding such damage
or destmction.
20.3 NO Abatepient yf Refit. Lessee shall not be entitled to
any conpensation or damages from thc County for loss of use of
the whole or any part of the Premises, Fixtures and Personal
Property, or any inconvenience or annoyance occasioned by such
damage, reconstmctlon or replacement. Lessee hereby waives amy
statutory rights of termination which may arise by reason of any
partial or total destmction of the Premises.
LA3.7*3m.V1 34
ARTICLE 21
EMINENT DOMAIN
21.1 C""l^f"^ If all of the Premises is taken under
eminent domain proceedings by a party other than the County, or.
If less than all of the- Premises is taUcen under such proceeding
and the part taken substantially impairs the ability of Lessee to
use the remainder of the Premises for the purposes permitted by
this Lease, then either the Coimty or Lessee may terminate this
Lease as of the date that the condemning authority takes
possession by delivery of written notice of such election within
twenty (20) days after such party has been notified of the talking
or, in the absence thereof, within twenty (20) days after the
condemning authority shall have tadcen possession.
21.2 Continuation of Lease Affcgt Cl'^'JfUPnatlon. If this
Lease is not terminated by the County or Lessee, it shall remain
in full force amd effect as to amy portion of the Premises
remaining, and:
(a) This Lease will end as of the date possession of
the part is taken by the public entity as to the part of the
Premises that is taken;
(b) Lessee is not entitled to the retum of any
prepaid rent; amd
(c) At its cost. Lessee shall restorsMso much^tjf-^he
remaining portion of the Premises as is required to create a site
substamtially suitad3le for the purposes for which it was used
immediately before the taking.
21.3 Lessee's Award. In connection with any taking. Lessee
may prosecute its own claim by separate proceedings against the
condemning authority for damages legally due to it (such as the
loss of Fixtures that Lessee was entitled to remove and moving
expenses) only so long as Lessee's award does not diminish or
otherwise adversely affect the County's award.
21.4 Allocation of CondeTtmaMon Award for a Total Takinor of
the Premises. All awards for the total taking of the Premises or
proceeds from the sale made under the threat of the exercise of
the power of eminent domain shall be the property of the County,
whether made as compensation for diminution of value of the
leasehold estate, for the taking of the fee, or as severance
damage; provided. however. Lessee shall be entitled to any award
for (i) the value of Lessee-constmcted Inprovements minus
depreciation by that percentage per year which is derived by
dividing 100 years by the length of the initial Term, and (11)
loss of or damage to Lessee's traide fixtures, and removaUale
personal property. Notwithstanding the foregoing, any amount of
condemnation compensation due to Lessee pursuant hereto shall go
first, to the County to satisfy (1) the County's attomeys' fees.
LA3-7»577I.W 35 Otflim
appraisal fees, and other costs incurred in prosecuting the claim
for the award, (ii) the value of the reversion as of the ending
date, and (iii) any financial obligations of Lessee to the County
pursuant to the provisions of this Lease, and second, to any
creditors of Lessee to satisfy the remaining balance of any due
to such creditor from any the County-approved loan encumbering
the Premises.
ARTICLE 22 .
SALE OR MORTGAGE BT TBB COUNTY
22.1 Sale or Mortgaoa. From and after the Effective Date,
the County may at any time, without the consent of Lessee, sell,
purchase, exchange, transfer, assign, lease, encumber on convey'
the County's' interest in whole or in part, in the Lease, the
Premises, the realty underlying the Premises or any portion of or
interest in the realty or improvements on the Property '
(collectively referred to in this Article as a "Sale"),
ARTICLB 23
SUBORDINATION! ATTORNMENT
23.1 Subordination. Without the necessity of amy other
document being executed amd delivered by Lessee, this Lease is
and shall be junior, subject and subordinate to any existing or
future permits or approvals issued by the United States of
America or any local. State or federal agency affecting the
control or operation of the Premises; Lessee shall be bound by
the terms and provisions of such permits or approvals. In
addition, this Lease is amd shall also be subject, subordinate
and junior to all ground leases, mortgages, deeds of tmst and
other security instruments of amy kind now covering the Premises
or any portion thereof. '
23.2 &fcio£smsaii. In the event any proceedings are brought
for foreclosure, or in the event of the exercise of the power of
sale under any mortgage or deed of tmst made by the County
covering the Premises, Lessee shall attom to the purchaser upon
any such foreclosure or sale and recognize such purchaser as
landlord under this Lease.
ARTICLE 24
COUNTY'S RIGHT OF ACCESS
24.1 AcecBfl. The County, its agents, enployees, and
contractors may enter the Premises at any time in response to an
emergency, and at reasonaOale hours to (a) inspect the Premises,
(b) exhibit the Premises to prospective purchasers or Lessees,
(c) determine whether Lessee is complying with its obligations in
this Lease (including its obligations with respect to compliance
with Environmental Laws), (d) supply cleaning service and any
other service that this Lease requires the County to provide,
(e) post notices of nonresponsibility or similar notices.
LA3.7«S77I.V3 36 OUltm
(f) make repairs that this Lease requires the County to make, or
make repairs to any adjoining space or utility services, or make
repairs, alterations, or improvements to any other portion of the
Property, (g) access any property owned or operated by the County
that is adjacent to or near the Premises, (h) test, inspect,
investigate, remediate or monitor the Premises, and any real
property adjacent to or near the Premises, for Contaminants,
Leachate or Landfill Gas, and (1) repair, maintain, install,
replace, investigate, inspect amd test any equipment or machinery
relating to Contaminants, Leachate or Landfill Gas remediation,
testing or monitoring of the Premises or amy real property
adjacent to or near the Premises; provided, however, all work
will be done as pronptly as reasonably possible and so as to
cause as little interference to Lessee as reasonaUsly possible.
24.2 Lessee Waivers Regarding Countv Aeeeae. Lessee waives
amy claim of injury or inconvenience to Lessee's business,|
interference with Lessee's business, loss of occupamcy or qui^t
enjoyment of the Premises, or any other loss occasioned by such
entry. If necessary,.Lessee shall provide the County with
keys-to unlock all of the doors in the Premises (excluding
Lessee's vaults, safes, and similar areas designated in writing
by Lessee in advamce). The County will have the right to use any
means that the County may deem proper to open doors in the
Premises and to the Premises in an emergency.
ARTICXJUZS,
QUIBT BNJOYMBMT
If Lessee is not in breach under the covenants made in
this Lease, the County covenamts that Lessee shall haye peaceful
and quiet enjoyment of the Premises without hindrance on the part
of the County. The County will defend Lessee in the peaceful emd
quiet enjoyment of the Premises against claims of all persons
claiming through or under the County.
ARTICLB 26
HOLDING OVBR
If Lessee remains in possession of the Premises, for
any reason, after the expiration of the term of this Lease
without executing a new Lease, or after the County has declared a
forfeiture by reason of a default by Lessee, then such holding
over shall be constmed as a tenancy from month to month, subject
to all the conditions, provisions and obligations of this Lease
insofar as they are applicable to a month-to-month tenamcy. The
Base Rent payaible during any period of holding over shall be
equal to Two Thousand Five Hundred Dollars ($2,500) (based upon
1997 dollars) per day, or amy portion thereof, as such number is
adjusted for inflation.
L*3-7*J77i.v: 37 OUltm
ARTICLE 27
NOTICES
27.1 Notices. Whenever in this Lease it shall be
required or permitted that notice or demand be given or served by
either party to this Lease to or on the other, such notice or
demand shall be in writing, mailed or delivered to the other
party at the addresses specified in Article 1 (SUMMARY OF BASIC
LEASE PROVISIONS). Mailed notices shall be sent by United States
Postal Service, certified or registered mail, postage prepaid and
shall be deemed to have been given, delivered and received three
(3) business days after the date such notice or other
communication is posted by the United States Postal Service. All
other such notices or other communications shall be deemed given,
delivered and received upon actual receipt. Either party pta-y, by
written notice delivered pursuant to this provision, at any time
designate a different address to which notices shall be sent.
I "l
27:2 Default Notices. Notwithstanding anything to the
contrary contained within this Article, any notices the County.is
required or authorized to deliver to Lessee in order to advise
Lessee of alleged violations of Lessee's covenants under this
Lease must be in writing but shall be deemed to have been duly
given or served upon Lessee by the County attenpting tb deliver
at the Premises during normal business hours a copy of such
notice to Lessee or its managing employee or by the County
mailing a copy of such notice to Lessee in the manner specified
in the preceding Section.
ARTICLB 28
NONDISCRIMINATION
Lessee hereby covenants by and for itself, its
successors, assigns and all persons claiming under or through it,
that-this Lease is made and accepted upon and subject to the
condition that there shall be no discrimination against, or
segregation of, amy person or group of persons on accoimt of
race, color, creed, religion, sex, marital status, national
origin or ancestry in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the Premises, nor shall.Lessee
itself, or any person claiming under or through it, estaiblish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, sublessees, subtenants or
vendees in the Premises.
ARTICLB 29
AFFIRMATIVE ACTION PROGRAM
Lessee, by maintaining a business location within San
Diego the County and by being, aible to use such business location
by virtue, in whole or in part, of this Lease, shall conply with
the Affirmative Action Program for Vendors as set forth in
1>3.7«77I.VJ 3 8 OUltm
Article III (commencing at Section 84) of the Sam Diego the
County Administrative Code, which program is incorporated in this
Lease by this reference. A copy of such Affirmative Action
Program for Vendors will be fumished to Lessee by the County's
Lease Administrator upon reG[uest.
ARTICLE 30
WAIVER OF RELOCATION ASSISTANCE BENEFITS
3 Relocation Assistance B^n^f;^^, Lessee is hereby
informed and ac)cnowledges the following:
a. By entering into this Lease and becoming a tenant
of the County, Lessee may become entitled to receipt of '
relocation assistance benefits ("Relocation Benefits") pursuant
to the Federal Uniform Relocation Assistamce Act (42 U.S C. SS
4601 et seq.) and the Califomia Relocation Assistance Law* (Cal
Gov. Code, SS 7260 et seq.), or either of them (collectively, the
"Relocation Statutes"), should: the County at some time make use
of the Premises in such a way as to "displace" Lessee from the
Premises. Pursuant to the Relocation Statutes, the County may
then become obligated to make such payments to Lessee even where
such displacement of Lessee does not otherwise constitute a
breach or default by the County of its obligations pursuant to
this Lease.
b. Under the Relocation Statutes la. effect as ^fof "tha-'
date hereof. Relocation Benefits may include payment to suoh a
"displaced person" of (1) the actuaa amd reasonable expense of
moving himself or herself and a family, business, or farm
operation, including personal property, (11) the actual direct
loss of reestablishing a business or farm operation, but not to
exceed Ten Thousand Dollars ($10,000), or (iii) payment in lieu
of moving expenses of not less than One Thousand Dollars ($1,000)
or more than Twenty Thousamd Dollars ($20,000).
30.2 Lepgee'p Waiver and Release ef Relo^^et-jan
Benefits. In consideration of the County's agreement to enter
into this Lease, Lessee hereby waives any and all rights it may
now have, or may hereafter obtain, to Relocation Benefits arising
out of the County's assertion or exercise of its contractual
rights to terminate this Lease pursuant to its terms, whether or
not such rights are contested by Lessee or any other entity, and
releases the County from any liability for payment of such
Relocation Benefits; provided, however. Lessee does not waive its
rights to Relocation Benefits to the extent that Lessee's
entitlement thereto may arise out of any condemnation or pre-
condemnation actions taken by the County or any other public
agency with respect to the Premises. Lessee shall in the future
execute any further documentation of the release and waiver
provided hereby as the County may reasonably require.
LA3-7»J77I.VJ 39 OUltm
ARTICLB 31
RECORDS, ACCOUNTS AND AUDITS
a. Lessee shall, at all times during the term of this
Lease, keep or cause to be-kept, tme and conplete books, records
and accounts of all financial transactions in the operation of
all business activities, of whatever nature, conducted pursuamt
to the rights granted in this Lease. Such records shall also
include the source and disposition of all trash collected amd
disposed of by Lessee in the operation of its business. Said
records must be supported by reasonable source documents.
b. All Lessee's books or accounts and records shall
be kept amd made available at one location within the lintits of
the County of San Diego. The County shall have the right at any
reasonable time to examine and perform audits of Lessee'E| records
pertaining to its operations on the Premises. The cost of saild
audits shall be home by the County; however, Lessee shall
provide to the County at Lessee's ea^ense, necessary data to
enaOile the County to fully cooply with each amd every requirement
of the State of Califomia or by the United States of America for
information or reports relating to this. Lease and to Lessee's use
of the Premises.
ARTICLB 32
GENERAL PROVISIONS
32.1 |>Luthoritv. Lessee represents amd warramts that it
has full power and authority to execute and fully perform its
obligations under this Lease pursuant to its goveming
instruments, without the need for any further action, and that
the person(s) executing this Lease on behalf of Lessee are the
duly designated agents of Lessee amd are authorized to do so.
32.2 Brokers. Lessee warramts that it has had no
dealings with any real estate broker or agent in connection with
the- negotiation or execution of this Lease. In the event any
broker other tham the brokers acknowledged in-writing by the
County make claim for monies owed. Lessee shall indemnify, defend
and hold the County harmless therefrom.
32.3 Captions. The captions, headings and index
appearing in this Lease are inserted for convenience only amd in
no way define, limit, constme, or describe the scope or intent
of the provisions of this Lease.
32.4 The County Approval. Except where stated in this
Lease to the contrary, the phrases "the County's approval," and
"the County's written approval" or such similar phrases shall
mean approval of the County's Lease Administrator or said
Administrator's representative as authorized by said
administrator in writing.
UO-7«J77I.W 40 OUltm
32.5 Cumula^j^e Remedies. In the event of a default
under this Lease, each party's remedies shall be limited to-those
remedies set forth in this Lease; any such remedies are
cumulative and not exclusive of any other remedies under this
Lease to which the non-defaulting party may be entitled.
32.6 Entire Agreement. This Lease, together with all
addenda, exhibits and riders attached hereto, constitutes the
entire agreement between the parties with respect to the subjett
matter hereof, and all prior or contenporaneous agreements,
understandings and representations, oral or witten, are
superseded.
32.7 Estoppel Certifieate. Lessee shall at any|time
during the term of this Lease, within five (5) business days of
written notice from the County, execute and deliver to the County
a statement in writing certifying that this Lease is unmodified
and in full force and effect or, if modified, stating the nature
of such modification. Lessee's statement shall include other
details requested by the County, such as the date to which rent
and other charges are paid, the current ownership amd name of
Lessee, Lessee's Imowledge conceming amy outstamdlng defaults
with respect to the County's obligations under this Lease and the
nature of such defaults if they are claims. Any such statement
may be relied upon conclusively by amy prospective purchaser or
encumbrancer of the Premises. Lessee's failure to deliver such
statements within such time shall be conclusive upon Lessee that
this Lease is in full force amd effect, except to tbe detente any
modification has been represented by the Coimty, amd that there
are no uncured defaults in the County's performance, emd that not
more than one month's rent has been paid in advance.
32.8 Exhibi ta. All exhibits referred to in this Lease
are attached hereto and incorporated by reference.
32.9 Force MaHeurg. In the event either party is
prevented or delayed from performing any act or discharging any
obligation under this Lease, except for the payment of rent by
Lessee, because of amy amd all causes beyond either party's
reasonable control, including unusual delays in deliveries,
aibnormal adverse weather conditions, unavoidable casualties,
strikes, labor disputes, inability to obtain labor, materials or
equipment, acts of God, govemmental restrictions, regulations or
controls, any hostile govemment actions, civil commotion and
fire or other casualty, legal actions attacking the validity of
this Lease or the County's occupancy of the Premises, or any
other casualties beyond the reasonable control of either party
except casualties resulting from Lessee's negligent operation or
maintenance of the Premises ("Force Majeure"), performance of
such act shall be excused for the period of such delay, amd the
period for performance of such act shall be extended for a period
equivalent to the period of such delay. Force Majeure shall not
LA3-7«S77t.Vl 41 OUltm
include any bankmptcy, insolvency, or other financial inability
on the part of either party hereto.
32.10 Goveming L»^- This Lease shall be govemed,
constmed and enforced in accordance with the laws of the State
of Califomia.
32.11 Intemretatlon. The parties have each agreed
to the use of the particular language of the provisions of this
Lease, and any question of doubtful interpretation shall not be
resolved by any mle of interpretation providing for
interpretation against the parties who cause an uncertainty to
exist or against the draftsperson.
32.12 -Joint and Several Liability. If more t^han
one person or entity executes this Lease as Lessee, each of them
is jointly and severally liable for all of the obligations of
Lessee under this Lease. I '{
32.13 Lessee's Lease Administration. Lessee
confirms that Lessee's Lease Administrator has been given full
operational responsibility for conpliance with the terms of this
Lease. Lessee shall provide the County with a written schedule
of its normal hours of business operation on the Premises, and
Lessee's Lease Administrator or a representative designated
thereby shall be (i) a-vailable to the County on a twenty-four
(24) hour a day, seven (7) days a week, basis, and (11) present
on the Premises during Lessee's normal business hours, to resolve
problems or answer question pertaining to this Lease amd Lessee's
operations on the Premises.
32.14 Liguidattfl P^^^TTg Any payments by Lessee
to the County under this Lease described as liquidated damages
represent the parties' reasonable estimate of the County's actual
damages under the described circumstances, such actual damages
being uncertain and difficult to ascertain in light of the
impossibility of foreseeing the state of the leasing market at
the time of the various deadlines set forth herein. The County
may, at its election, take any of the liquidated daimages assessed
in any portion of this Lease as direct monetary payments from
Lessee and/or as an increase of rent due from Lessee under this
Lease.
32.15 Modification. The provisions of this Lease
may not be modified, except by a written instrument signed by
both parties.
32.16 Partial Invalidity. If any provision of this
Lease is determined by a court of conpetent jurisdiction to be
invalid or unenforceable, the remainder of this Lease shall not
be affected thereby. Each provision shall be valid and
enforceable to the fullest extent permitted by law.
W3-7«J771.V3 42 OUltm
32.17 Pavmei^tg Except as may otherwise be
expressly stated, each payment required to be made by Lessee
shall be in addition to and not in substitution for other
payments to be made by Lessee.
32.18 Successors a Assigns. This Lease shall be
binding on an inure to the benefit of the parties and their
successors and assigns, except as may otherwise be provided in
this Lease.
32.19 Time of Essence. Time is of the essence of
each and every provision of this Lease.
32.20 ffftlvgy. No provision of this Lease or the
breach thereof shall be deemed waived, except by written consent
of the party against whom the waiver is claimed. The waiver by
the County of any breach of any term, covenant or condition •
contained in this Lease shall not be deemed to be a waiver of
such term, covenant or condition of any subsequent breach
thereof, or of any other term, covenamt or condition contained in
this Lease. The County's subsequent acceptance of partial rent
or performance by Lessee shall not be deemed to be an accord amd
satisfaction or a waiver of amy preceding breach by Lessee of amy
term, covenant or condition of this Lease or of any right of the
County to a forfeiture of the Lease by reason of such breach,
regardless of the County's knowledge of such preceding breach at
the time of the County's acceptance. The failure on.4:he"^part of
the County to require exact or full and conplete conpllamce w±th
any of the covenants, conditions of agreements of this Lease
shall not be constmed as in any manner changing or waiying the
terms of this Lease or as estopping the County from enforcing In
full the provisions hereof. No custom or practice which may
arise or grow up between the parties hereto in the couriie of
administering this Lease shall be constmed to waive, eiitop or in
any way lessen the right of the County to insist upon tlie full
perfonnance of, or conpliance with, amy term, covenant or
condition hereof by Lessee, or constmed to inhibit or prevent
the rights of the County to exercise its rights with reiipect to
any default, dereliction or breach of this Lease by Lessee.
contained 32.21 Purchase Agrgeman^. Nothing
this Lease shall limit, modify or reduce the covenants,
agreements or obligations of Lessee or Allied, or the
rights and remedies, under that certain Purchase and Sal
Agreement dated as of August 12, 1997 (as amended from
time, the "purchase Agreement"), by and between the
seller, and Allied Waste Industries, Inc., a Delaware
("Allied"), as purchaser (which Purchase Agreement has
assigned to, and assumed by. Lessee as it relates to.
things, the Premises), including, without limitation,
or Lessee indemnification obligations and any County
of representations and warranties set forth therein. Ir
in
Cc^unty s
" e
tilme to
as
cdrporatlon
peen
other
Allied
Couity
anong
ary
dlsjclaimers
the
LA3-7«177I.VJ 43 outim
event of a conflict between the terms of this Lease and the
Purchase Agreement, the Purchase Agreement shall control.
32.22 (7gtinterparta. This Lease may be executed in
any number of counterparts, each of which is deemed an original
and all of which, when taken together, constitute one and the
same instrument.
32.23 Approvals. All Coupty approvals under this
Lease must include the approval of the Assistant Deputy Director
- Aviation.
LA3-7»S77».VJ 44 OUltm
IN WITNESS WHEREOF, the County an
Lease as of the day and year fir
THE COUNTY:
executed this
THE COUNTY OF SAN DIEOQT
a politi^zaj. subdivision of. the State of Califomia
By;
Liti/zal subdivision oJL the St
Lawrence B. Prior III,'
Chief Administrative Officer
APPROVED AS TO FORM. AND LEGALITY
Chief Defifijfy lunsel
I I
LESSEEI PALOMAR
a Califo:
INC. ,
lelM^i,
Authorized Re|SFea«naaKtt9e
By:
Don Swlerenga,
President
LA3.7«5TJ|.VJ 45 OUltm
EXHIBIT A
DESCRIPTION AND PLAT OF TEE PREMISES
Parcel No. 97-008S-A1
That portion of McClellan-Palomar Airport, in the City of
Carlsbad, County of San Diego, State of Califomia, described in
deed to the County of San Diego, recorded January 18, 1974 as
File/Page No. 74-014190 in the Office of the County Recorder of
said County, described as follows:
BEGINNING at the most Southerly comer of land described' in deed
to the City of Carlsbad recorded June 30, 1982 at File/Page No.
82-201566 in said County Recorder's Office; thence alongj the
Southerly boundary of said Carlsbad land, North 78"42'04"i West,
635.35 feet to a point on the Easterly line of a 48.00 foot road
and utility easement granted to said City of Carlsbad on said
1982 deed; thence along said Easterly line. South 11"17'56" West,
519.92 feet to the beginning of a tangent 326.00 foot radius
curve, concave Easterly; thence Southerly, along the arc of said
curve, through a central angle of 54«»45'22", a distance of'311.55
feet; thence tangent to said curve South 43*27'26" East, 112.20
feet; thence leaving said Easterly line. North 5l"31'08" East,
235.72 feet; thence North 61«24'19" Bast, 355.40 feet; thence
North 57"22'14" East, 246.04 feet to the beginning of a timgent
50.00 foot radius curve concave Westerly; thence Northeasterly
along the arc of said curve, through a central angle of
e8<'35'04", a distance of 77.30 feet; thence tamgent to said curve
North 31'12'50" West, 51.72 feet; thence North 53"37'13" West.
169.04 feet; thence North 4"55'29" East, 93.29 feet to the POINT
OF BEGINNING.
tA3-7«yni.vi A-1 OUltm
PLAT OF THE PREMISES
ISEE ATTACHED]
LA3-7«ST7I.V2 A-2 OUltm
/f:Sr
EXHIBIT B
FEDERAL AVIATION ADMINISTRATION REQUIREMENTS
In the event there is any conflict between the provisions in
tills Exhibit and the other provisions in this Lease, the
provisions in this Exhibit shall take precedence.
a. Lessee for itself, its heirs, personal
representatives, successors in interest, amd assigns, as a part
of the consideration hereof, does hereby covenant amd agree as a
covenant mnning with the lamd tliat in the event facilities are
constmcted,, maintained, or otherwise operated on the said
property described in this Lease for a purpose for which lai DOT
program or activity is extended or for another purpose involving
the provision of similar services or benefits. Lessee shall
maintain and operate such facilities and services In con|>l'lancie
with all other requirements inposed pursuant to Title 49, Code of
Federal Regulations, DOT, Subtitle A, Office of the Secretary,
Part 21, Nondiscrimination in Federally-Assisted Programs of the
Department of Transportation-Effectuation of Title VI of the
Civil Rights Act of 1964, and as said Regulations may be amended.
b. Lessee for itself, its personal representatives,
successors in interest, and assigns, as a part of the
consideration hereof, does hereby covenant and agree as a
covenant mnning with the land that: (1) no person on:^h*»groun4s ~<
of race, color, or national origin- shall be exclude^^^ froa>«»
participation in, denied the benefits of, or be otherwise
subjected to discrimination in the use of said facilities, (2)
that in the constmction of any inprovements on, over, or under
such land and the fumishing of services thereon, no person on
the grounds of race, color, or national origin shall he excluded
from participation in, denied the benefits of, or otherwise be
subject to discrimination, (3) that Lessee shall use the Premises
in compliance with all other requirements inposed by or pursuant
to Title 49, Code of Federal Regulations, Department of
Transportation, Subtitle A, Office of the Secretary, Part 21,
Nondiscrimination in Federally-Assisted Programs of the
Department of Transportation-Effectuation of Title VI of the
Civil Rights Act of 1964, and as said Regulations may be amended.
c. That in the event of breach of any of the above
nondiscrimination covenamts, the County shall have the right to
terminate this Lease and to re-enter and repossess said land and
the facilities thereon, amd hold the same as if said Leiase had
never been made or issued. This provision does not become
effective until the procedures of 49 CFR Part 21 are followed and
completed including expiration of appeal rights.
d. Lessee shall fumish its accommodations and/or
services on a fair, equal and not unjustly discriminatory basis
to all users thereof and it shall charge fair, reasonable amd not
U3-7»J77I.V5 B-1 OUltm
unjustly discriminatory prices for each unit or service;
PROVIDED, THAT L.^ssee may be allowed to make reasonable and
nondiscriminatory discounts, rebates or other similar type of
price reductions to volume purchasers.
e. Non-conpllamce with Provision d above shall
constitute a material breach thereof emd in the event of such
nonconpliance the County shall have the right to terminate this
Lease and the estate hereby created without liability therefore
or at the election of the County or the United States either or
both said Govemments shall have the right to judicially enforce
said Provisions.
f. Lessee agrees that it shall insert the ab<i>ve five
(5) Provisions in ahy sublease, contract or agreement by which
said Lessee grants a right or privilege to any person, firm or
corporation to render accommodations and/or services to the '
public on the Premises herein leased*.
g. Lessee assures that it will undertake an
affirmative action program as required by 14 CPR Part 1S2,
Subpart B, to insure that no person shall on the grounds of race
creed, color, national origin, or sex be excluded from
participating in any enployment activities covered in 14 CFR Part
152, Subpart E. Lessee assures that no person shall be excluded
on these grounds from participating in or receiving the services
or benefits of any program or activity covered by this subpart.
Lessee assures that it will require that its covered
suborganizations provide assurances to Lessee that they similarly
will undertake affirmative action programs and that they will
require assurances fron their suborganizations, as required by 14
CFR Part 152, Subpart E, to the same effect.
h. The County reserves the right to further develop
or improve the landing area of the Airport as it sees fit,
regardless of the desires or view of Lessee and without
interference or hindrzmce.
i- The County reserves the right, but shall not be
obligated to Lessee, to maintain amd keep in repair the landing
area of the Airport and all publicly-owned facilities of the
Airport, together with the right to direct and control all
activities of Lessee in this regard.
j . This Lease shall be subordinate to the provisions
and requirements of any existing or future agreement between the
County and the United States, relative to the development,
operation or maintenance of the Airport.
k. There is hereby reserved to the County, its
successors and assigns, for the use and benefit of the public, a
right of flight for the passage of aircraft in the airspace above
the surface of the Premises herein leased. This public right of
LA3-7«m.v5 B-2 o»i.im
flight shall include the right to cause in said airspace amy
noise inherent in the operation of any aircraft used for
navigation or flight through the said airspace or landing at,
taking off from or operation on the Airport.
1. Lesseie agrees to conply with the notification and
review requirements covered in Part 77 of the Federal Aviation
Regulations in the event future constmction of a building is
planned for the leased Premises, or in the event of any planned
modification or alteration of any present or future building or
stmcture situated on the leased Premises.
m. Lessee, by accepting this, expressly agrees for
itself, its successors and assigns that it will not erect juor
permit the erection of any stmcture or object, nor permit the
growth of any tree on the lamd leased hereunder that conflicts
with Part 77 of the Federal Aviation Regulations. In thelevek^t
the aforesaid covenamts are breached, the County reserves the
right to enter upon the lamd leased hereunder and to remove the
offending stmcture or object and cut the offending tree, all of
which shall be at the esqpense of Lessee.
n. Lessee, by accepting this Lease, agrees for
itself, its successors and assigns that it will not make use of
the leased Premises in any manner which might interfere with the
lamding and taking off of aircraft from said Airport or otherwise
constitute a hazard. In the event the aforesaid covenamt is**
breached, the County reserves the right to enter upon the—
Premises hereby leased and cause the abatement of such
interference at the expense of Lessee.
o. It is understood amd agreed that nothing herelnm^<
contained shall be constmed to grant or authorize the gramting^-
of an exclusive right within the meaning of Section 308a of the -
Federal Aviation Act of 1958 (49 U.S.C. 1349a).
p. This Lease and all the provisions hereof shall be
subject to whatever right the United States Govemment now has or
in the future may have or acquire, affecting the control,
operation, regulation and taking over of said Airport or the
exclusive or non-exclusive use of the Airport by the United
States during the time of war or national emergency.
U3-7<5T7I.V5 B-3 OUltm
EXHIBIT C
MCCLELLAN-PALOMAR AIRPORT
INDUSTRIAL AREAS
DEVELOPMENT STANDARDS
TABLE OF CONTENTS
1. LAND USES
a. Accepted Uses I"
b. Prohibited Uses i
2. CONDUCT OF USE ..." i . . . 1
3. BUILDING SETBACKS |. '. . . 1
4. BUILDING CONSTRUCTION I •, ,
a. Coverage ] ,
b. Exterior Walls • ^ i 1
5. HEIGHT LIMIT 2
6. MINIMUM DISTANCE BETWEEN BUILDINGS 2
7. MULTIPLE-OCCUPANCY BUILDINGS 2
8- REQUIRED SCREENING 2
a. Parking Areas 5
b. Screening Types . . . ,2
c. Roof Tops 2
9. HEIGHT OF FENCES, WALLS, AND PLANT MATERIALS ... 3
a. Fences and Walls [ . . . , 3
b. Plant Materials 3
10. OFF-STREET PARKING AND LOADING 3
a. Parking 3
b. Loading Space 3
c. Dimensions 2
d. Location ' i !!!!!! 3
e. Inprovement of Parking Spaces and Parking Areas ' ' ' 3
f. Marking of Parking Spaces '3
g. Parking Restrictions 3
11. ON-SITE CIRCULATION 4
a. Ingress and Egress '..*.*.! 4
b. Driveway i^rons ! ! ! ! ! 4
c. Pedestrlam WaLkways 4
12. SIGNS 4
a. Identification Signs 5
b. Directional Signs 5
L>3.7.S77,,VJ C-1
c. Safety Signs 5
d. Real Estate Signs . 5
e. Sign Design 5
13. TRASH COLLECTION AREAS 5
14. LAMDSCAPING 5
a. Required Lamdscaped Areas 5
b. Landscaping Design 6
c. Irrigation 6
15. OTHER REGULATIONS 6
UAJ.7*S77I.VI c-2 OUltm
MCCLELLAN-PALOMAR AIRPORT
INDUSTRIAL AREAS
DEVELOPMENT STANDARDS
T.Mm USES
a. Accepted Uagg. The following primary uses will be
acceptable subject to approval of the County and conpliance with
these development standards and the performamce standards
specified for McClellam-Palomar Airport:
(1) Research and development uses.
(2) Industrial and manufactuz^lng uses.
(3) Warehousing, storage, amd wholesaling.
(4) Offices, services, sales activity, and other
necessary buildings and uses appurtenamt to permitted uses
specified in 1, 2, and 3 above.
(5) Signs pertaining only to the use conducted within
buildings or signs pertaining to the sale or lease of the
premises on which they are located in accordance with standards
contained herein.
(6) Off-street parking amd loading, vehicular amd
pedestrian circulation, amd landscaping in accordamce with
standards specified herein.
(7) On the same leasehold or building site with a
permitted industrial park use, one dwelling unit occupied
exclusively by a caretaLker or superintendent of such use and
his/her family may be permitted upon approval of the County.
(8) Finance, insurance, real estate and business
services, provided such services involve primary emphasis on
processing or production, to the exclusion of services rendered
to customers on the premises, to which end such offices shall be
called process offices.
b. Prohibited Uses. Uses not falling into the above
categories are not permitted unless specifically set forth in the
Lease.
2. CONDUCT op ugg. All manufacturing operations shall be
conducted within an enclosed building. All storage shall be
conducted within a totally enclosed building or enclosed by a six
(6) foot high or higher, view obscuring fence or wall. This
fence shall not encroach into any required exterior yard. No
storage shall exceed the height of the-wall or fence.
LA3-7«S77I.VJ C-3 OUltm
3. nnj^^DiKG SETBACKS- No building, stmcture (except a wall or
landscape feature--or fence) shall at any time be erected or
maintained on any site within twenty-five (25) feet from any site
boundary abutting any street.
4. PTTIPTT'Q CONSTRUCTION.
a. QsSSSSSA' All buildings, including accessory buildings
and stmctures, and all paved areas shall not cover more than
ninety percent (90%) of the net lot area.
b. ^terior Walls. Any building erected within the
industrial park shall conform to the following:
' I
(1) Exterior Walls shall be concrete or masonry except
where specific approval is given by the County for ,
architecturally acceptable altemate materials and design.' I
(2) Exterior walls shall be painted or treated in a mamner
acceptable to the County.
5. HEIGHT LIMIT. No building or stmcture shall exceed t%*o
stories or 35 feet in height, whichever is the lesser; provided.
however, buildings or stmctures located one hundred (100) feet
or more from amy property line and exceeding 35 feet in height
may be permitted upon approval by the County.
6. MTWTMOM DISTANCE BETWEEN BUILDINGS. ThSM' Shail .to»..a
minimum ten (10) feet between all buildings located on the sama
site.
7. Mnr.TTPLE OCCUPANCY BUILDINGS. Multiple occupancy of
buildings is permitted. In case of multiple occupancy,
off-street parking, off-street loading, outdoor trash facilities,
and on-site vehicular amd pedestriam circulation systems must be
shared in common; provided that separate such facilities may be
pemiitted by the County where justified and when such provision
does not otherwise deviate from the specifics amd intent of these
development standards.
8. RgQPIRgD SCREENINQ.
a. Parking Areas. Where parking space areas are located
so as to be visible from a street, there shall be a landscaped
screen at least five (5) feet in width, planted with trees,
shrubs, ground cover, or combination of landscaping and aggregate
materials that will significantly soften the view of such areas.
Such landscaping may be credited to the ten percent (10%)
requirement of Paragraph 14. .
b. ffGreening Types. Where screening is required herein It
shall consist of one, or any combination of the following types,
in an aesthetically designed configuration.
U*3.7»J77I.VJ C-4 OUltm
(1) Walls: A wall shall consist of concrete, stone, brick,
tile, or similar type of solid masonry material a minimum of four
inches thick.
(2) Berms: A berm shall consist of landscaped mounded earth
designed in such a way as to provide desired screening effect.
(3) Fences, solid: A solid fence shall be constmcted of
masonry.
(4) Fences, open: An open weave or mesh type fence shall be
combined with plamt materials or view obscuring slats to form an
opaque screen. ^
(5) Planting:' Plant materials, when used as a screein', shall
consist of conpact evergreen plamts. They shall be of a iklnd, or
used in such a manner, so as to provide screening having ai '
minimum thlc3aiess of two (2) feet within eighteen (18) months '
after initial installation.
c. Roof Tope- Roof top equipment such as HVAC units shall
be screened from view from both street level and above. To that
end, all duct work and electrical conduits are to be riin
undemeath the roof surface. In addition, the equipment should
be clustered and roof top color shall be considered during the
design of the buildings.
9. HEIGHT OP FENCES. WALLS. AND PLANTED MATERIA^^fl.
a. Fences and Walla. No decorative or screening fences or
walls shall exceed the following height limits above ground
ele-vatlon:
(1) Within required front or side yard setback abutting a
street: Forty-two (42) inches except within five (5) feet of the
intersection of a driveway and a street, a driveway and a
walkway, a driveway and parking area circulation aisle, or two
(2) driveways in which cases the height limit shall be thirty
(30) inches.
(2) All other areas: Eight (8) feet, unless otherwise
approved by the County.
b. Plant WatexAftLB- Except where used as am opaque
screen, plant materials may be permitted at any height not
constituting a hazard to operation of aircraft based on the
judgment of the County.
10. OFF-STREET PARKING AND LOADING SPACE.
a. Parking. All parking shall be designed to be provided
at the ratio of one (1) off street parking space per three
hundred (300) square feet of gross floor area If the proposed
LA3.nyn\.v7 C-5 f^,^
development of the Premises is recognized as a standard warehouse
or manufacturing use, paved parking may be provided at the ratio
of one space per six hundred (600) square feet. However, the
remainder of the land area necessary to provide an ultimate
parking ratio of one (i) space per three hundred (300) square
feet of gross floor must be available for future parking
expamsion. This area may be made a part of the lamdscaped area
of the Premises until such time as the additional parking is
needed, however it will not be considered as part of the required
10% landscaping coverage outlined in Clause 14. (LANDSCAPING)
below.
b. y^oading Space. All buildings with a gross floor area
greater than one 'thousand (1,000) square feet shall be served
with a loading area'with minimum dimension of twenty (20) feet by
twenty (20) feet. One (1) additional loading area shall be
provided for buildings with a gross floor area exceeding twelve
thousand (12,000) square feet. Loading areas shall not be placed
in any required yard areas or parking spaces.
c. pimeneions. Each parking space shall be a minimum of
nine (9) feet wide amd twenty (20) feet deep.
d. j;,ocation. All parking and loading spaces shall be on
the same leasehold Premises with the building or stmctures they
are to serve.
e. Improvement of Parking Spaces and »a»ki^^jtoaaa<>»
(1) All parking spaces or areas, loading berths,
approaches, and driveways shall be adequate for anticipated Mihmel^
loads, with a stmctural section designed by a,soils engineers
and constmcted of Portlamd Cement (concrete over a base course
of adequate stability,
(2) All parking spaces abutting the perimeter of the
property shall be provided with securely installed concretei wheel
barriers or concrete curbs not less than four (4) inches in
height.
f. tfarking of Parking Spaces. The location of each
parking space shall be identified and maintained by permament
surface markings.
g. parking Restrictions. On street parking within the
Industrial Park shall conform with the current City of Carlsbad
Code.
11. •^l^-glTg CIRCULATION.
a. Tncrress and Egress.
LA3-7«i77I.V3 C-6 OUltm
(1) On-site driveways shall be located so as to serve
multiple purposes such as parking and loading areas wherever
possible.
(2) On-site driveways shall have an unobstmcted paved
surface minimum width of not less than fifteen (15) feet per
one-way drive, or twenty-four (24) feet for two-way drive.
(3) Parking, loading areas, and driveways shall be arranged
to permit vehicular traffic to move into and out of parking and
loading areas, driveways, and ramps without the backing of any
vehicle onto a street.
(4) Unobstmcted amd adequate maneuvering aisles or
tum-around areas shall be provided as necessary to insure that
all vehicles shall enter the street or highway in a forward
mamner.
(5) Parking areas, driveways, maneuvering aisles, rautps,
and tum-ar.ound areas shall be kept free and clear of
obstmctions at all times.
h. PrlvffWfty Apargpg. AII driveway aprons will be installed
concurrently with individual site development and shall be
commercial driveways of Portlamd cement concrete, six (6) inches
thick from curb to right-of-way line with minimum width of
fifteen (iS) feet at the curb line for one-i*ay traffic and thirty
(30) feet for two-way traffic according to Standard Drawing G-16.
Where driveway aprons will serve semi-trailers, they shall be no
less tham twenty-four (24) feet and thirty-six (36) feet
respectively, and may be constmcted as alley aprons with
appropriate curb retums.
c. Pedestrian Walkwayg- Easily accessible and adequate
pedestrian walkways consisting of concrete, decorative gravel,
paving blocks, or other aesthetically pleasing materials shall be
provided.
12. £isas.
a. Ideatlgicatioa. Not more than two (2) signs
identifying the name and address of the occupamt and the
products, activities or facilities located on the Premises are
permitted for each Premises except as hereinafter specified.
(1) One (1) such sign may be a single-face sign mounted on
and parallel to a wall of the main building. Such sign shall be
proportional to the size of the building wall upon which it is
mounted but shall not exceed an area of forty-eight (48) square
feet. Such a sign may not extend above the top of the parapet
wall, the roof line at the wall, the eaves of the building, or
portion of the building to which attached, whichever is
applicable; nor shall the sign face protmde more than eighteen (
1>3.7«J77I.V1 c-7 OUltm
e. gion Desigy. Identification signs must be designed so
as to provide uniformity of layout, lettering, graphics; size,
shape, color, method of installation and constmction. The
location and design of all identification signs shall be subject
to the written approval of the County. No sign of any type shall
be installed without the prior written approval of the County.
13. TRASH COLLECTION AREAg, All trash collection areas shall,be
located outside of areas required to be devoted to landscaping
and shall be enclosed by a wall and hea-vy duty solid gates not
less than six (6) feet in height. Portland cement concrete .
floors and aprons are required in.trash collection areas.
14. TAMDfiCAPING. I
a. Required Landscaping Areas. Landscaping plans shall be
required amd submitted for approval of the Coimty. All ^terilor
yards, except for driveways shall be landscaped amd maintained,
however, in no event shall the total landscaped area be less than
ten percent (10%) of the gross lot area. All areas not in a
driveway or sidewalk between street curb and the property line
shall be landscaped and maintained by Lessee amd may be Included
in the above mentioned ten percent on-site requirement.
b. Landscaping Design.
(1) Coverage: At least seventy-five percent (7S-%)r.'i,ofc the
surface landscaped shall be planted with^a conpatlb£iHt:on±>lnatlon
of trees, shrubs, vines, flowers or omamental ground cover. Th»<>
remainder may include features such as pedestrian walkways, rock
groui)ings, sculptures, pools, fountains, outdoor seating areas,
decorative paving, amd gravel areas, interspersed with plamting
areas.
(2) spacing: Plamt material spacing shall conform to the
following standards: A minimum of twenty-five (25) feet from the
back of sidewalk at street intersections to the center of the
first tree or the center of the first large shrub ten feet in
height or more at maturity.
c. irrigation. Prior to commencing amy use of the
property, required lamdscaped areas shall be planted and a
permanent type sprinkler system or similar watering system or
device, adequate to provide water necessary to properly maintain
the particular plant materials used, shall be constmcted and
thereafter maintained in good working order.
15. Q'ng^ REGULATIONS. In addition to the provisions of these
Development Standards, all development on the Premises shall
conform to the standards specified by the applicable Federal
Aviation Administration Regulations, laws of the State of
Califomia, the Carlsbad Municipal Code and those ordinances and
policies promulgated by the Board of Supervisors which regulate
mi.nyni.vi C-9 OUltm
the administration, land use, constmction, and development of the County Airports.
In the event there is any conflict between these Development
Standards and the regulations, laws, and/or ordinances of the
above mentioned agencies, the most restrictive shall apply
LA3,7«JT7I.V3 C'lO n......
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EXHIBIT D
MCCLELLAN-PALOMAR AIRPORT
INDUSTRIAL AND AVIATION AREAS
PERPORMANCE STANDARDS
TABLE OF CONTENTS
PAGE
1. NOISE 1
a. standards 1
b. Method of Measurement 1
c. Sound Level 1
d. Aircraft Engine Runups , . . . 1
e. Exenptlons 1
2. GLARE J . y . 1
a. Standards 1
b. Prohibitions l
3. ELECTRC»4AGNETIC INTERFERENCE 2
a. Standards 2
b. Method of Measurement 2
4. VIBRATION 3
a. stamdards 3
b. Method of Measurement - . . 3
5. TOXIC MATTER 3
a. Standards 3
b. Method of Measurement 3
6. ODOR 4
7. SMOKE, PARTICULATE MATTER, AND OTHER AIR.XONTAMINANTS . . 4
8. LIQUID WASTES . 4
a. Standards 4
b. Prohibitions 4
9. FIRE AND EXPLOSIVE HAZARDS ".4
10. OTHER REGULATIONS 4
LA3-7»J77I.V2 D-1 ovitm
MCCLELLAW.P|ILQMAR AIRPORT
IWDUSTRIAlf AND AVIATION AREAS
PERPQRMAW^ .qTANDARD^
1. UQISS-
a. Standards. At no point on or beyond the boundary of
the leasehold Premises shall the maximum sound level resulting
from amy operation, activity or use exceed Leq(h) - 70 dB for
continuous noise. If the measured ambient level exceeds the
applicable limit noted above, the allowable one hour average
sound level shall be the ambient noise level. The ambient noise
level shall be measured when the alleged noise violation source
is not operating. i
b. Method of Meaauyem^t;, Noise Shall be measured| with a
sound level meter having an A-weighted filter constmcted in
accordamce with specifications of the Americam National Standards
Institute for type S-2A general purpose sound level meters.
(1) Inpact noise shall be measured using the fast
response of the sound level meter. Inpact noises are
intermittent sounds such as from a punch press or drop-forge
haunmer.
(2) Continuous noise shall be measured-using the slow
response of the sound level meter.
c. Sound Level (Noise Level). Sound level shall mean the
weighted sound pressure level obtained by the use of a sound
level meter and frequency weighting network as -specified in
American National Standards Institute specifications for sound
level meters (ANSI.4-1971, or the latest revision thereof). if
the frequency weighting enployed is not Indicated, the
A-weightlng is inplied.
Aircraft Engine Runupf. Lessee shall restrict aircraft
engine tests and maintenance runups performed on the leasehold
Premises to idle power settings. Lessee shall restrict aircraft
tests amd maintenance runups at greater than power settings to
locations on the Airport and during the time of day authorized in
writing by the County.
e. £2£BEiMsac- The following sources of noise are exempt
from the specified maximum sound level:
Lessee;
(1) Tramsportation vehicles not under the control of
(2) Occasionally used safety signals, waming devices,
and emergency pressure relief valves; and
LA3.7W77I.V2 D-2 OUltm
920 - 30,000 Megacycles 2000 Microvolt/Meter
Irrespective of the above standards, any electromagnetic
disturbance that causes interference with radio transmissions,
aircraft instruments, navigational aids, or other electromagnetic
receptors essential to aircraft operations shall be modified or
abated upon request of the County.
b. method of Measurement. The l«vel Of radiated
electromagnetic Interference shall be measured by using standard
field strength measuring techniques. The maximum -value of the
tabulation shall be considered as having been exceeded If at any
frequency in the section of the spectrum being measured, the
measured field strength exceeds the maximum value tabulatefi for
this spectrum section.
4. VIBRATION. I I
a. gtandards. At no point on or beyond the boundary of
the leasehold Premises shall the maximum particle velocity
resulting from amy operation, or activity or use exceed O.lO
inches per second for steady-rate vibrations and 0.20 inches per
second for inpact vibrations.
b. y<ethod of Measurement. Vibration shall be measured
with a seismograph or conplement of instruments capable of
recording vibration displacement and f recjuency or particle
velocity simultaneously in three mutually perpendicular/
directions. When particle velocity is conputed on the basis of 7
displacement and frequency, the following formula shall be usedta
p.V. - 6.28 F X D
P.V. - Particle velocity, inches per second
F . vibration frequency, cycles per second
D - Single anplitude displacement of the vibration, inches
The maximum particle velocity shall be the maximum vector
sum of the three mutually perpendicular conponents recorded
simultaneously.
(1) steady-rate vibrations are vibrations which are
continuous or vibrations in discrete impulses occurring 100 or
more times per minute.
(2) Inpact vibrations are vibrations in discrete impulses
occurring less than 100 times per minute.
5. T'^rir, MATTER.
a. standards. At no point on or beyond the boundary of
the leasehold Premises shall the release of any airborne toxic
matter resulting from any operation, activity or use exceed 3.0
percent of the Threshold Limit Value; provided. Imfivfii:, if a
n.d OUltm
toxic substance does not have an established Threshold Limit
Value, Lessee shall satisfy the County Department of P'jUlic
Health that the proposed levels will be safe to the general
population. ^
Method of Maa«t^|-ffn.^a^ The maximum concentration is
given as a fractional amount of the ACGIH Threshold Limit Value
which is the maximum concentration permitted an industrial worker
for eight hours exposure per day, five days a week, as adopted bV
the American Conference of Govemmental Industrial Hyqlenlsta '
(ACGIH). Toxic matter shall be measured at ground level or
habitable elevation using ACGIH or ASTM methods and shall be the
average of any 24-hour sanpling period.
6. OPOR. At no point on or beyond the boundary of the I
leasehold Premises shall amy odorous gases or other odorous
matter resulting from any operation, activity or use be
detectable. I
nA^r-^Mn^' r^T5???^P MATTER. ^ OTffBR MR CONTftMTNftNTfi. All operations, activities, and uses shall be conducted so as to
comply with the mles and regulations of the San Dlego the Countv Air Pollution Control District goveming smoke, particulate matter, and other air contaunlnamts.
8. LTQUXP WASTgg.
a. Standar<lg. All operations, activities, and uses shall
be conducted so as to conply with the mles and regulations of
the State of Califomia Water Quality Control Board - San Dlego
Region emd the County San Dlego.
b. PrPhi)?ittOM. The discharge of any toxic or waste
material onto the ground, into any drainage chamnel, or the discharge of any toxic material into any on-site leaching system
shall be prohibited. ^ jr^i-cui
S- PIRg m> EXPtOgyvB pmsga- AII operations, activities, and
uses shall be conducted so as to conply with the mles and
regulations of the applicable fire protection agency and the
Uniform Fire Code goveming fire and explosive hazards.
^0, OTPPR RggUTrfATTOWS. In addition to the provisions of these
Performance Standards, all operations on the Premises shall
conform to the standards specified by the applicable Federal
Aviation Administration Regulations, laws of the State of
Califomia and the applicable local ordinances which regulate
land use and operations. In the event of a conflict between
these Performance Standards and various applicable laws,
ordinances and regulations, the most restrictive shall apply
m3.7»i77i.vj n-5
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EXHIBIT E
INSURANCE REQUIREMENTS
Without limiting Lessee's indemnification obligations to the
County, Lessee shall provide and maintain, during the Term-and
for such other period as may be required by the provisions of
this exhibit ("Insurance Exhibit") or the Lease, at its sole
expense, insurance in the amounts and form specified in this
Insuramce Exhibit.
A. ^Al^^llity Insurance. Lessee shall procure either
Conprehensive General Liability insurance or Conmerclal General
Liability insurance applying to its use and occupancy of the
Premises, or any part thereof, or any areas adjacent thereto, amd
the business operated by Lessee or any other occupamt on the
Premises, in the amounts amd form set forth below: ^
(1) Comprehensive General Liabilitv Insurance. A policy of
Comprehensive General Liability Insurance which provides limits
of:
(a) Combined Single Limit per occurrence: $5,000,000
(b) Fire Damage Limit (Any One Fire): $ 500,000
(c) Medical Expense (Any One Person): $ 5,000
OR
(2) Commercial General Liability Inauranee.sa. A pg^Miiy^t
Commercial General Liability Insuramce which provldea'^liiittts of:
(a) Per Occurrence: $5,000,000
(b) Location ?.peeific Aggregate: $5,000,000
(c) Products/Conpleted Operations: $5,000,000
(d) . Personal & Advertising Injury limit: $5,000,000
(e) Fire Damage Limit (Any One Fire): $ 500,000
(f) Medical Esqpense Limit (Any One Person): $ 5,000
(3) Reouired Liabilitv Policy Coverage. Any liability
policy provided by Lessee under this Insuramce Exhibit shall
contain the following coverage:
(a) Premises and Operations
(b) Products/Conpleted Operations
(c) Contractual Liability esqjressly including
liability assumed under this Lease.
(d) Personal Injury Liability
(e) Independent Contractors' Liability
(f) Pollution liability with no exclusion for
operations at the Premises
(g) Severability of Interest clause providing that the
coverage applies separately to each insured, and
that an act or omission by one of the named
UA3-7»577I.VJ ouiam
insureds shall not reduce or avoid coverage to the other named insureds.
^^^^^^^''^'^ Tagvrff<T Fndorgen^enfe. Any general liability
policy provided by Lessee under this Insurance Exhibit shall
contain an endorsement which applies its coverage to the County,
the members of the Board of Supervisors of the County, and the
officers, agents, enployees and volunteers of the Countv
individually and collectively, as additional insureds.
^ v.^^^^^r^i"^nr ^"'^"'•^^gg gnd9rpeff>?nt. The coverage afforded
by the additional insured endorsement described above shall apolv
as primary insurance, and any other insurance maintained bv the
County, the members of the Board of Supervisors of the C'ouatv or
its officers, agents, enployees and volunteers, or any the County self-funded program, shall be excess only and not contributing with such coverage. ^-.—UAUS
,, FffCT Pf Liability Insurance PQllg4.« jQi liability
policies shall be written to apply to all bodily Injury
including death, property damage, personal injury and other
covered loss, however occasioned, occurring during the policy
term, and shall specifically insure the performance by Lessee of-
that part of the indemnity agreement contained in this Lease
relating to liability for injury to or death of persons and
damage to property. If the coverage contains one or more
aggregate lindts, a minimum of 50% of amy such aggregate limit
must remain available at all times; if over 50% of aSy aggregate
limit has been paid or reserved, the County may require
additional coverage to be purchased by Lessee to restore the
required limits. Lessee may combine primary, umbrella and as
broad as possible excess liability coverage to achieve the total
c:,?^. ^ above. Any umbrella or excess liability policy
shall include the Additional Insured Endorsement described below.
. Rlg?^ Pife Tpe\;rgngB. A standard flre policy including
P«J^ii8« in-an amount of ninety percent
90% of the full replacement cost of the Building and
improvements, without deduction for depreciation, including costs
of demolition and debris removal. Such policy or policies of
insurance shall include coverage for (1) Lessee's merchandise
(11) fixtures owned by Lessee, (iii) any items identified in this
Lease as improvements to the Premises constmcted or owned either
by the County or Lessee, and (iv) the personal property of
Lessee, its agents amd enployees.
(1) peductible. The deductible for the required flre
insurance policy shall not exceed $10,000 per occurrence and
shall be borne by Lessee.
<2) Pypceedg Tnqvrange. in the event of damage or
destmction to the Premises covered by the flre or physical
LA3-7^3771.VJ K.2
" * OUltm
hazard insurance required of Lessee under this Insurance Exhibit,
the proceeds of such insurance shall be allocated as follows:
(a) Proceeds from amy or all of said insurance
policies shall be payable, first, to the holder of any mortgage
or deed of tmst permitted under this Lease to the extent
required by said mortgage or deed of tmst;
(b) Any balance, remaining after application of
insurance proceeds in the manner indicated in subparagraph (a),
above, shall be credited to Lessee. If Lessee, or the County, is
required to rebuild or restore the Premises pursuant to the
provisions of this Lease, the amount of insurance proceeds
credited to Lessee shall -be impounded with an independent
depository acceptable to the County in accordance with a rider to
the insurance policy setting forth this procedure, to be
disbursed to pay, to the extent such portion of proceeds piay be
sufficient. Lessee's obligations to repair amd restore the
Premises pursuant to the provisions of this Lease;
(c) In the event that, after paying all of the costs
and expenses of repair and restoration referenced in subparagraph
(b), above, any balance of Insurance proceeds remains, it shall
be retained by Lessee. Should it be anticipated that the
proceeds of insurance to be received by Lessee will be
insufficient to repair or restore the Premises as required by
this Lease, Lessee shall have the option to either (1) terminate.^
this Lease and tum over all insurance proceeds from thevinpound'"
account to the County, or (11) repair or restore the Premises a*
required under this Lease using the a-vailable Insurance proceeds
with any shortfall in the amount necessary to repair or restore*
the Premises being contributed, in cash, by Lessee. (See,
Sectioa 20.5 (UNINSURED CASUALTY) under Article 20 (DAMAGB OR
DESTRUCTION).
(d) Notwithstanding any provision of the foregoing to the
contrary, upon any termination of this Lease all proceeds from
Lessee's insurance, but excluding such proceeds attributable to
damages sustained by Lessee's merchandise or personal property,
shall be disbursed and paid to the County.
C. roppr^fagPgi"*^* Automobile/Aircraft/Watercraft LiaJjllltv
Insurance. Lessee shall procure Comprehensive
Automobile/Alrcraft/Watercraft Liability Insurance, applying to
its use and occupancy of the Premises and the business operated
by Lessee or any other occupant on the Premises. Such policy
shall be written for bodily injury, including death, and property
damage, however occasioned, occurring during the policy term, in
the amount of not less than One Million Dollars ($1,000,000),
combined single limit per occurrence, applicable to all owned,
non-owned and hired vehicles/alrcraft/watercraft,
Notwithstanding any provision of the foregoing to the contrary.
u3-7,57T,.vj S-3
however, such coverage may be waived in writing by the Countv i
It determines there is no significant exposure to these risks.
?• PtatytorV workers' rompenaatlon and »vcr'a LiahO jfry.
Ipgnrangg. Lessee shall provide the statutory amount S woSers'
compensation insurance, with a broad form all-states endorsement
ii?'^^^*^^ coverage of no less than Thrir '
Million Dollars ($3,000,000) per occurrence for all enployees
engaged in services or operations under this Lease, Lessee shall
also provide U.S. Longshoremens' and Harbor Workers' Act
coverage, when applicable.
E. General Provl^^ong,
Lessee shall, as soon as
practicable following the placement of insurance required bv this
Insurance Exhibit, but in no event later than ten (lO) dJys brior
to the Effective Date, deliver to the County certified coJieSiof
the actual insurance policies specified by this Insurance
Exhibit, or certificates evidencing the same, together with
appropriate separate endorsements thereto, evidencing that Lessee
has obtained such coverage for the period of the Lease.
Thereafter, copies of renewal policies, or certificates and-
appropriate separate endorsements thereof, shall be delivered to
the County within thirty (30) days prior to the expiration of the
term of any policy required by this Insurance Exhibit. Lessee
shall permit the County at all reasonable times to inspect anv
policies of insurance of Lessee which Lessee has not delivered to
the'County.
, (2) C^yjLffg Made Cpverftqc. if coverage is written on a
"claims made" basis, the Certificate of Insurance shall clearly
state so. In addition to the coverage requirements specified
aUbove. such policy shaai provide that:
(a) The policy retroactive date coincides with or
precedes Lessee's possession of the Premises (including
subsequent policies purchased as renewals or replacements).
(b) Lessee will-make every effort to maintain similar
insurance during the required extended period of coverage
following ea^imtion of the Lease, including the requirement of
adding all additional insureds.
^ insurance is terminated for any reason. Lessee
shall purchase an extended reporting provision of at least two
years to report claims arising in connection with the Lease.
(d) The policy allows for reporting of circumstances
or incidents that might give rise to future claims.
(3)
Remedies. Failure to Obtain or Maintain Insurance: the r^ountv e
Lessee's failure to procure the insurance specified by
LA3.7»J77I.VJ 0.4
* ' OUltm
this Insurance Exhibit, or failure to deliver certified copies or
^ appropriate certificates of such insurance, or failure to make
(•^ the premium payments required by such insurance, shall constitute
a material breach of the Lease, and the County may, at its
option, terminate the Lease for any-such default by-Lessee.
(4) yo Limitation of Obligations. The foregoing
requirements as to the types-and limits of insurance coverage to
be maintained by Lessee, and any approval of said insuramce by
the County or its insurance consultant(s), are not intended to
and shall not in any manner limit or qualify the liabilities and
obligations otherwise assumed by Lessee pursuant to the
Agreement, including, but not limited to, the provisions
conceming indemnification.
(5) yotiee of'Cancellation or Change of Coverage. All
certificates of insurance provided by Lessee must evidence that
the insurer providing the policy will give-the County thirty (30)
days' written notice, at the address shown in the Section of this
Lease entitled "Notices" below, in advance of any camcellation,
lapse, reduction or other adverse change respecting such
Insurance.
(6) gualifving Insurers. All policies of insurance
reguired hereby shall be issued by companies which have been
approved to do business in the State of Califomia by the State
Department of Insurance, and which hold a current policy holder's
alphabetic and financial size category rating pf not lesa than JA,
VII according to the current Best's Key RiitingijRGtflde, oaa *
company of equal financial stability that is approved in writing-'
by the County's Risk Manager.
(7) geview of Coverage. The County shall retain the right*
at any time to review the coverage, form amd amount of insurance
required by this Insuramce Exhibit and may require Lessee to
obtain insurance reasonably sufficient in coverage, form and
amount to provide adequate protection against the kind and extent
of risk which exists at the time a change in insurance is
required.
(8) g^lf-Insurance. Lessee may, with the prior written
consent of the County's Risk Manager, fulfill some or all or the
insurance requirements contained in this Lease under a plan of
self-insurance. Lessee shall only be permitted to utilize such
self-insurance, however, if, in the opinion of the County's Risk
Manager, Lessee's (1) net worth, and (11) reserves for payment of
claims of liability against Lessee, are sufficient to adequately
compensate for the lack of other insurance coverage required by
this Lease. Lessee's utilization of self - insurance shall not in
any way limit liabilities assumed by Lessee under this Lease.
(9) sublessees' inaurance. Lessee shall require any
sublessee, and any sub-sublessee, of all or any portion of the
E-5 OUltm
tAJ-7«S77».VJ *• ^
Premises to Pfoyide the insurance coverage described in this
Insurance Exhibit prior to occupancy of the Premises.
<10J waiver of Suh^-nrry^j^,, Lessee and the County waive all
rights to f^^J^JJ^against each other or against any other tenant
or occupant of the building, or against the officers, directors
shareholders, partners, enployees, agents or invitees of each '
other or of any other occupant or tenant of the building, from
any Claims (as defined in the Article 12 (INDEMNITY AND
INSURANCE)) , against either of them and from any damages to the
fixtures, personal property. Lessee's inprovements, and
alterations of either the County or Lessee in or on the Premises
to the extent that the proceeds received from any insurance
carried by either the County or Lessee, other than proceeds from
any program of self-insurance, covers any such Claim or damage
Included in any policy or policies of insurance provided by
Lessee under this Insurance Exhibit shall be a standard waiver of
rights of subrogation against the County by the insurance Icomnanv
issuing sale, policy or policies- ^»kwiy
UAJ.7«3771.v: E-6
OUltm
EXHIBIT F
MCCLELLAN-PALOMAR AIRPORT
THE COUNTY OF SAN DIEGO REQUIRED SUBLEASE PROVISIONS
The following paragraphs must appear in each sublease of the
Premises. Paragraphs marked with an asterisk (*) must be used
exactly as written.
1. Parties. This Sublease is entered into by and between
hereinafter called "Sublessor", and
hereinafter.called "Sublessee", as a Sublease
under the Palomar Transfer Station Lease Agreement datedi
19 (the "Master Lease"), also known as the County
of Sam Diego Contract No. . Sublessor, under this
Sublease, is Lessee and the County of Sam Diego is Lesso'r under
said Master Lease.
2. Premise*. Sublessor leases to Sublessee and Sublessee
hires the following described Premises together with the
appurtenances, situated in the Coimty of San Diego, State of
Califomia:
Said Premises are shown on Exhibit A attaaaiatd hegsfeo^^
3. Term. The term of this Sublease Agreement shall be for'
commencing , 19 , aad
terminating , , unless sooner
terminated as provided herein. (Note: Termination date of
Sublease cannot exceed expiration date of Master Lease.)
4. Rental. Sublessee shall pay to Sublessor as rent for
the Premises in advamce on the first day of each calendar month
of the term of this Sublease without deduction, offset, prior
notice or demand, in lawful money of the United States, the sum
of Dollars and Cents
($ ) . If the commencement date is not the first day of
the month, or if the Sublease termination date is not the last
day of the month, a prorated month installment shall be paid at
the then current rate for the fractional month during which the
Sublease commences and/or terminates. Receipt of $_
is hereby aclcnowledged for rental for the first month, and the
additional amount of $ as non-interest bearing
security for performance under this Sublease. In the event
Sublessee has performed all the terms and conditions of this
Sublease throughout the term, upon Sublessee vacating the
Premises, the amount paid as a security deposit shall be retumed
to Sublessee after first deducting any sums owning to Sublessor.
LAJ-7«S77I.V? F-1 OUltm
5. SSfi. Sublessee shall use the Premises for uses
specified in the Master Lease, generally described as the office
operations of a solid waste collection business, a recycling
facility, and a trash transfer station, including office, repair
and storage facilities for equipment used in collecting and
transferring trash, and for no other purposes without prior
written consent of Sublessor. Sublessee's business shall be
established and conducted throughout the term hereof in a first
class manner. Sublessee shall not use the Premises for, or carry
on, or permit to be carried on, amy offensive, noisy or dangerous
trade, business, manufacture or occupation.
*6. Tr'1?^iffication. Sublessee shall indemnify and save
harmless the County of San Diego, it officers, agents, and
enployees from amd against any and all claims, demands,
liabilities, or loss of any kind or nature which the County, its
officers, agents, or enployees may sustain or incur, or Which may
be inposed upon them or any of them for injury to, or death or,
persons or damage to property, as a result of, arising out of. or
in any manner connected with this Sublease or with occupancy amd
use of the Subleased Premises by Sublessee, its officers, agents,
enployees, licensees, patrons or visitors except as attributaible
to am act or omission of the County. Sublessee further agrees to
pay any and all costs and expenses, including, but not limited
to, court costs and reasonable attorneys' fees, incurred by the
County on account of any such claims, demands, or liabilities.
*7. Provisiona Constituting Subleaae. This Sublease is
subject to all of the terms and conditions of the Master Lease.
Sublessee shall assume amd perform the obligations of Sublessor
and Lessee in said Master Lease, to the extent said terms and
conditions are applicable to the Premises subleased pursuant to
this Sublease. Sublessee shall not commit or permit to be
committed on the Premises any act or omission which shall violate
any term or condition of the Master Lease. In the event of the
termination of Sublessor's interest as Lessee under the Master
Lease for any reason, then this Sublease shall terminate
coincidentally therewith without any liability of Sublessor and
the County to Sublessee. Sublessee hereby aclcnowledge* and
agrees that Sublessee waives all rights to any form of Relocation
Assistance provided for by local. State, or Federal law that
Sublessee--may be entitled to by reason of this Sublease.
*8. Federal Aviation Admlniatration Requirmpic^t^y m the
event there is any conflict between the provisions in this Clause
and the other provisions in this Sublease, the provisions in this
Clause shall take precedence.
a. Sublessee, for itself, its heirs, personal
representatives, successors in interest, and assigns, as a part
of the consideration hereof, does hereby covenant and agree as a
covenant mnning with the land that in the event facilities are
constmcted, maintained, or otherwise operated on the said
LA3.7«»377I.V2 F-2 OUltm
property described in this Sublease for a purpose for which a DOT
program or activity is extended or for another purpose involving
the provision of similar services or benefits, Sublessee shall
maintain and operate such facilities and services in conpliance
with all other requirements inposed pursuant to Title 49, Code of
Federal Regulations,- DOT, Subtitle A, Office of the Secretary,
Part 21, Nondiscrimination in Federally-Assisted Programs of the
Department of Transportatlon-Effactuation of Title VI of the
Civil Rights Act of 1964, and as said Regulations may be amended.
b. Sublessee, for Itself, its personal
representatives, successors in interest, and assigns, as a part
of the consideration hereof, does hereby covenant and agree as a
covenant running with the land that: (1) no person on the grounds
of race, color, or national origin shall be excluded from'
participation in, denied the benefits of, or be otherwise
subjected to discrimination in the use of said facilities, (2)
that in the constmction of any inprovements on, over, or und^r
such land and the fumishing of services thereon, no person on
the grounds of race, color, or national origin shall be excluded
from participation in, denied the benefits of, or otherwise be
subject to discrimination, (3) that Sublessee shall use the
Premises in conpliance with all other requirements Imposed by or
pursuant to Title 49, Code of Federal Regulations, Department of
Transportation, Subtitle A, Office of the Secretary, part 21,
Nondiscrimination in Federally-Assisted Programs of the
Department of Transportation-Effectuation of Title VI of the
Civil Rights Act of 1964, and as said Regulations may bSMamended.
c. That in the event of breach of any of the above
nondiscrimination covenants. Sublessor shall have the right to
terminate this Sublease and to re-enter and repossess said land
and the facilities thereon, and hold the same as if said Sublease
had never been made or issued. This provision does not become
effective until the procedures of 49 CFR Part 21 are followed and
conpleted including expiration of appeal rights.
d. Sublessee . shall fumish its accommodations and/or
services on a fair, equal and not unjustly discriminatory basis
to all users thereof and It shall charge fair, reasonable and not
unjustly discriminatory prices for each unit or service;
PROVIDED, THAT Sublessee may be allowed to make reasonable and
nondiscriminatory discounts, rebates or other similar type of
price reductions to volume purchasers.
e. Non-compliance with Provision d above shall
constitute a material breach thereof and in the event of such
non-conpliance Sublessor shall have the right to terminate this
Sublease and the estate hereby created without liability
therefore, or at the election of Sublessor, the County or the
United States, any or all said entities shall have the right to
judicially enforce said Provisions.
LAJ-7*J77l.v: F-3 OUltm
f. Sublessee agrees that it shall insert the above
five (5) Provisions in any sub-sublease, contract or agreement by
which said Sublessee grants a right or privilege to any person,
firm or corporation to render accommodations and/or services to
the public on the Premises herein subleased.
g. Sublessee assures that it will undertake an
affirmative action program as required by 14 CFR Part 152,
Subpart E, to insure that no person shall, on the grounds of
race, creed, color, national origin, or sex be excluded from
participating in amy enployment activities covered in 14 CFR Part
152, Subpart E. Sublessee assures that no person shall be
excluded on these grounds from participating in or receiving the
services or benefits of any program or activity covered by this
subpart. Sublessee assures that it will require that its covered
I
suborganizations provide assuramces to Sublessee that they
similarly will undertaUce affirmative action programs amd that
they will require assurance from their suborganizations, ad
required by 14 CFR Part 152, Subpart E, to the same effort.
h. the Coimty reserves the right to further develop
or inprove the landing area of the Airport as it sees fit,
regardless of the desires or view of Sublessee, and without
interference or hindrance.
i. the County reserves the right, but shall not be
obligated to Sublessee, to maintain and keep in repair the
landing area of the Airport and all publicly-owned facilities of
the Airport, together with the right to direct and control all
activities of Sublessee in this regard.
j . This Sublease shall be subordinate to the
provisions and requirements of any existing or future agreement
between the County and the United States, relative to the
development, operation or maintenance of the Airport.
k. There is hereby reserved to the County, its
successors and assigns, for the use and benefit of the public, a
right of flight for the passage of aircraft in the airspace above
the surface of the Premises herein subleased. This public right
of flight shall include the right to cause in said airspace any
noise inherent in the operation of any aircraft used for
navigation or flight through the said airspace or landing at,
taking off from or operation on the Airport,
1. Sublessee agrees to comply with the notification
and review requirements covered in Part 77 of the Federal
Aviation Regulations in the event future constmction of a
building is planned for the subleased Premises, or in the event
of any planned modification or alteration of any present or
future building or stmcture situated on the subleased Premises.
U*J-7«77I.VI F-4 OUltm
m. Sublessee by accepting this expressly agrees for
itself, its successors and assigns that it will not erect nor
permit the erection of any stmcture or object nor permit the
growth of any tree on the land subleased hereunder that conflicts
with Part 77 of the Federal Aviation Regulations. In the event
the aforesaid covenants are breached, the County and/or Sublessor
reserve the right to enter upon the land subleased hereunder and
to remove the offending stmcture or object and cut the offending
tree, all of which shall be at the expense of Sublessee.
n. Sublessee by accepting this Sublease agrees for
itself, its successors and assigns that it will not maike use of
the subleased Premises in any maimer which might interfere with
the landing and taking off of aircraft from the Airport or
otherwise constitutfs a hazard. In the event the aforesaid
covenant is breached, the County and/or Sublessor reserve the
right to enter upon the Premises hereby subleased and cai^se tfhe
abatement of such interference at the expense of Sublessee.
o. It is understood and agreed that nothing herein
contained shall be constmed to grant or authorize the gramting
of an exclusive right within the meaning of Section 308a of the
Federal Aviation Act of 1958 (49 U.S.C. 1349a) .
p. This Sublease and all the provisions hereof shall
be subject to whatever right the United States Govemment now has
or in the future may have or acquire, affecting the control,
operation, regulation and taking over of said Airpoet or. the
exclusive or non-exclusive use of the Airport by the»^UB±te*
States during the time of war or national emergency.
*9. gjqns. Sublessee shall not erect nor cause to be
erected any sign on the Subleased Premises without the prior
written approval of the County. A written request for sign
approval must include the size, type, color and location of the
proposed sign and said application must be concurred in by
Sublessor before submittal to the County.
*10. gubetance Abuse. Sublessee and its employees and
agents shall not use or Jcnowingly allow the use of the subleased
Premises for the purpose of unlawfully driving a motor vehicle or
aircraft under the influence of am alcoholic beverage or any dmg
or for the purpose of unlawfully selling, serving, using,
storing, transporting, keeping, manufacturing or giving away
alcoholic beverages or any controlled substance, precursor, or-
analog specified in Division 10 of the Califomia Health and
Safety Code, and violation of this prohibition shall be grounds
for immediate termination of this Sublease.
LA3-7«J77I.V3 F-5 OUltm
This Sublease entered into this day of October 19
SUBLESSEE: SUBLESSOR:
(Title)
!By_
(Title)
By.
(Title) By.
(Title)
Address Address
LA3.7«i77l.v: S-l OUlU^l
1 EXHIBIT B
2 SUBLEASE AND DISPOSAL AGREEMENT BETWEEN ALLIED WASTE
3 INDUSTRIES, INC. AND WASTE MANAGEMENT, INC.
70017373VI