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HomeMy WebLinkAbout2012-02-14; City Council; 20811; AMENDMENT 3 DISPOSAL SERVICES PALOMAR TRANSFERCITY OF CARLSBAD - AGENDA BILL 20,811 AB# MTG. 2/14/12 DEPT. UTIL APPROVAL OF AMENDMENT NO. 3 TO EXTEND AND AMEND THE AGREEMENT FOR TRANSFER STATION AND DISPOSAL SERVICES BETWEEN THE CITY OF CARLSBAD AND PALOMAR TRANSFER STATION, INC. DEPT. DIRECTOR CITY ATTORNEY CITY MANAGER RECOMMENDED ACTION: Adopt Resolution No. 2012-036 approving Amendment No. 3 to extend and amend the Agreement for Transfer Station and Disposal Services between the City of Carisbad and Palomar Transfer Station, Inc. ITEM EXPLANATION: The Palomar Transfer Station (PTS) operated by Palomar Transfer Station, Inc. ("Contractor") has served as the City's solid waste transfer station for over seventeen years. On June 1, 2002, Contractor acquired a twenty-five year lease with options for 14 five-year extensions on the PTS. In 2002, the City and Contractor entered into an agreement ("Agreement") where Contractor assigned its lease with the County of San Diego to the City and Contractor maintained its right to operate the PTS in order to realize a return on its $3 million advance lease payment to San Diego County. As part of this agreement the City committed to dispose of all solid waste generated in the City at the PTS for ten years (the Initial Operating Period). The Initial Operating Period will expire on May 31, 2012. The City benefits from a most favored customer provision of the Agreement, which guaranteed the City the lowest disposal fee at the PTS. On March 29, 2011, at a City Council workshop, city staff presented the City Council with options related to solid waste services, including the use ofthe PTS. Staff received direction at the workshop to work with the solid waste hauler and the Contractor to discuss options for solid waste services that included directing the city's solid waste to the PTS. On June 14, 2011, at a City Council workshop, city staff presented proposals from the Contractor related to transfer station and disposal services at the PTS and from the solid waste hauler related to solid waste services. Staff received direction at the workshop to prepare an amendment for the transfer station and disposal services work with the Contractor and to prepare a contract for solid waste services with the solid waste hauler. The proposed amendment will not substantially change the services provided under the Agreement, however the amendment will: 1.) extend the Agreement by 10 years and 1 month to coincide with the term of the proposed solid waste agreement, 2.) revise the annual rate increase methodology to reduce the percentage increase for the base component of the fees from 100 percent of Consumer Price Index or "CPI" All Urban Customers, San Diego All Items to 90 percent of CPI, 3.) add a fuel component of the fees for the elements of Contractor's costs relative to the purchase of fuel for transportation services that will increase based on a fuel index, and 4.) add new fee options to reflect new disposal alternatives for the composting of organics and construction and demolition materials. DEPARTMENT CONTACT: Christine Ruess 760-438-2722 christine.ruess(S)carisbadca.qov FOR CITY CLERKS USE ONLY COUNCIL ACTION: APPROVED CONTINUED TO DATE SPECIFIC • DENIED • CONTINUED TO DATE UNKNOWN • CONTINUED • RETURNED TO STAFF • WITHDRAWN • OTHER-SEE MINUTES • AMENDED • Page 2 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 rates adjust, the new rates will be passed through to residential and commercial customers via the solid waste hauler. Coast Waste Management, Inc. EXHIBITS: Resolution No. 2012-036 approving Amendment No. 3 to extend and amend the Agreement for Transfer Station and Disposal Services between the City of Carisbad and Palomar Transfer Station, Inc. Amendment No. 3 to the Agreement to extend and amend the Agreement for Transfer Station and Disposal Services between the City of Carisbad and Palomar Transfer Station, Inc. Agreement for Transfer Station and Disposal Services between the City of Carisbad and Palomar Transfer Station, Inc., dated June 1, 2002. a • 1 RESOLUTION NO. 2012-036 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, TO EXTEND AND AMMEND THE 3 AGREEMENT WITH THE PALOMAR TRANSFER STATION, INC FOR TRANSFER STATION AND DISPOSAL SERVICES. 4 " 5 WHEREAS, the City of Carlsbad has an Agreement with Palomar Transfer Station, Inc. 6 for Transfer Station and Disposal Services; and 7 WHEREAS, the City is required by the Agreement to deliver all solid waste generated in 8 the City of Carlsbad for ten years ending on May 31, 2012, which is defined as the "Initial 9 Operating Period"; and 10 WHEREAS, the City and Contractor have determined that it is in their mutual interests to 11 extend the Initial PTS Operating Period for ten (10) years and one (1) month with one three (3) 12 year extension option at the City's sole discretion; and 13 WHEREAS, the referenced Initial PTS Operating Period extension will terminate on June 30, 2022 at 5 p.m. unless otherwise extended or amended by the City Council; and 15 WHEREAS, the terms and conditions of Amendment No. 3 to the Agreement are ^ ^ mutually agreed upon by the City and Contractor. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 18 California, as follows: 1Q 1. That the above recitations are true and correct. 2. That the City Council authorizes the extension of the Initial PTS Operating Period of the Agreement for ten (10) years and one (1) month with one three (3) year extension option at the City's sole discretion. 3. That the City Council authorizes the terms and conditions of Amendment No. 3 to the Agreement. 20 21 22 23 24 25 26 27 28 3 1 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council 2 of the City of Carisbad on the 14th day of February 2012, by the following vote to wit: 3 4 5 6 7 8 9 10 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AYES: Council Members Hall, Kulchin, Blackburn, Douglas, Packard. NOES: None. ABSENT: None. 11 MATT'HALL, Mayor 12 ATTEST: LORRAINE M. WOOD, City Clerk (SEAL) ,<^B;'^'>. AMENDMENT NO. 3 TO THE AGREEMENT FOR TRANSFER STATION AND DISPOSAL SERVICES (PALOMAR TRANSFER STATION, INC.) This Amendment No. 3 is entered into effective as of the /6 day of <::^JLJbjLAAUiUtAi 20 / <5L , amending the agreement dated June 1, 2002, (the agreement) is entered into by ant between the City of Carlsbad, a municipal corporation ("City"), and Palomar Transfer Station, Inc., a California corporation ("Contractor") (collectively, the "Parties") for transfer station and disposal services. RECITALS A. WHEREAS, on May 30, 2011, the Parties executed Amendment No. 1 to the Agreement to extend the deadline for the City to deliver written notice to Contractor of the City's election to send some or all of the City's waste to the Palomar Transfer Station (PTS) during the Subsequent Operating Period pursuant to Section 6.03; and B. WHEREAS, on November 8, 2011, the Parties executed Amendment No. 2 to the Agreement to further extend the deadline for the City to deliver written notice to Contractor of the City's election to send some or all of the City's waste to the PTS during the Subsequent Operating Period pursuant to Section 6.03; and C. WHEREAS, Section 2.04 of the Agreement allows the City to extend the Initial PTS Operating Period in periods of three (3) year increments; and D. WHEREAS, the City and Contractor have determined it is in their mutual interests to extend the Initial PTS Operating Period for ten (10) years and one (1) month with one (1) three (3) year extension option at the mutual agreement of the Parties; and E. WHEREAS, the Parties have negotiated and agreed to City-Regulated Service Fees, effective July 1, 2012, which are attached to and incorporated by this reference as Exhibit "A". NOW, THEREFORE, in consideration of the foregoing Recitals and for the receipt of other good and valuable consideration, which both Parties hereby acknowledge, the Parties agree as follows: 1. The following shall be added after the current paragraph in section 2.04: The Initial PTS Operating Period shall be extended for ten (10) years and one (1) month, beginning June 1, 2012, with one (1) three (3) year extension option at the mutual agreement ofthe Parties. 2. The following terms shall be added under Article 1, "Definitions" of the agreement: "Fuel Baseline" is the amount that the Contractor and City have agreed upon and will be the value of the Fuel Component as of July 1, 2012. This amount has been determined to be $8.46 per ton of acceptable waste delivered to the PTS by the City or Designated Hauler. "Fuel Component" is the portion of the PTS Solid Waste Fee that contains the elements of Contractor's costs relative to the purchase of fuel for transportation services. "PTS Organic Fee - Alternative Daily Cover" is the fee charged for organic materials other than earthen material placed on the surface of the active face of a municipal solid City Attorney Approved Version 5/12/11 6 waste landfill at the end of each operating day to control vectors, fires, odors, blowing litter, and scavenging. "PTS Organic Fee - Compost" is a fee charged for organic materials other than earthen material that is transformed into a stable, humus-like product resulting from the biological decomposition of organic matter under controlled conditions. "PTS Construction & Demolition Fee" is a fee charged for used or discarded materials resulting from construction, remodeling, repair, or demolition operations on any pavement, house, commercial building, or other structure and such other materials as may be removed during the normal cleanup process of such construction, remodeling, repair, or demolition operations. The PTS Construction and Demolition Fee is comprised in total of the Base Component, the Fuel Component and Governmental Fee Component. The PTS Construction and Demolition Fee shall only be owed by the City's Designated Hauler to Contractor, and Contractor shall only be obligated to process Construction and Demolition Debris generated within the City and delivered to the PTS by the City or its Designated Hauler, when and if the City delivers written notice of the City's request that Contractor process such PTS Construction and Demolition Debris. The Contractor obligation to perform such services, and the City's Designated Hauler's obligation to pay Contractor for such services, shall commence on the date requested in the City's written notice, but this date shall not be less than ninety days after the date the City delivers its written notice to Contractor. Prior to the effective date of such written notice, all PTS Construction and Demolition Debris shall be deemed to be PTS Solid Waste within the meaning of this Agreement. Contractor's obligation to process any PTS Construction and Demolition Debris shall cease if the City's Designated Hauler does not pay the PTS Construction and Demolition Fee to Contractor. "Weekly Retail On-Highway Diesel Prices, California Index" is the index produced by the U.S. Energy Information Administration that reflects the price of diesel fuel in California. 3. The following terms shall be deleted from Article 1, "Definitions" of the Agreement: PTS Organic Processing Fee, PTS Organic Transfer Fee, and PTS Organic Transport Fee. 4. The term "PTS Organic Transfer Fee" shall be changed to "PTS Organic Fees" throughout the Agreement. 5. The following terms in Article 1, "Definitions" have been revised to read as follows: a. "Base Component" means that portion of a Service Fee that is periodically adjusted throughout the Term by CPI. This does not include any portion ofthe Fuel Component. b. "PTS Organic Fee(s)" are the per-Ton compensation due to the Contractor from the designated Hauler(s) for the Acceptance of City Source Separated Organic Material during the Initial PTS Operating Period. The PTS Organic Fee(s) are the PTS Organic Fee - Alternative Daily Cover, applicable to organics used as alternative daily cover, and the PTS Organic Fee - Compost applicable to organics that are composted. The PTS Organic Fees also include the Base Component, the Fuel Component, and the Governmental Fee Component. c. "PTS Solid Waste Fee" is the per-Ton compensation due to the Contractor from the Designated Hauler(s) for Acceptance of City Waste during the Initial PTS Operating Period. The PTS Solid Waste Fee is comprised in total ofthe Base Component, the Fuel Component and Governmental Fee Component. City Attorney Approved Version 5/12/11 6. Section 3.05.D, 3.05.E and 3.05.F shall revised to read as follows: D. Recovering Recyclable Materials, Organic Materials and Construction & Demolition Materials (if requested) from City Waste; E. Transferring Solid Waste, Recyclable Materials, Organic Materials and Construction & Demolition Materials (if requested) into large-capacity Transport trailers or containers; F. Processing, marketing and Transferring Recyclable Materials, Organic Materials and Construction & Demolition Materials (if requested); 7. The final three sentences of paragraph three under Section 4.01 shall be removed. These sentences reference requirements for the Contractor to secure new proposals and bids for the purpose of selection of the Designated Organics Processing Facility. 8. Section 8.03 A shall be revised as follows: General. The PTS Solid Waste Fee includes compensation for Transfer Station services. Transportation of City Waste to Designated landfills. Disposal Services, and all applicable Governmental Fees. The PTS Solid Waste Fee shall be effective during the Initial PTS Operating Period. The PTS Solid Waste Fee is separated into three components: The Base Component, the Fuel Component and Governmental Fee Component. The adjustment process for the PTS Solid Waste Fee is presented in Section 8.04. The rates, which will be effective on July 1, 2012, are included in Exhibit "B". 9. Section 8.03B shall be revised as follows: Base Component. The initial Base Component is that portion of the PTS Solid Waste Fee comprised of the Contractor's fixed and variable costs, excluding the Fuel Component. The Base Component shall be adjusted annually during the Initial Operating Period to reflect 90% of the change in the CPI values as specified in Section 8.04B, but will not othenwise be adjusted except as the result of a modification to the scope of services as provided in Section 16.15. The initial Base Component, which will be effective on July 1, 2012, is included in Exhibit "B". 10. Section 8.03 shall be revised to include the following: D. Fuel Component. The "Fuel Component" is the portion of the PTS Solid Waste Fee that contains the elements of the Contractor's costs relative to the purchase of fuel for transportation services. The initial Fuel Component, which will be effective on July 1, 2012, is included in Exhibit "B". 11. Section 8.04B shall be revised as follows: Base Component Annual Adjustment. The annual change to the Base Component of the PTS Solid Fee shall be calculated using 90% of the percentage change in the value of the CPI. If the Base Component Annual Adjustment calculation exceeds five (5) percent, the adjustment of the Base Component will be limited to five (5) percent. The specific adjustments shall be rounded to the nearest cent per ton. The adjustments to the Base component shall be made as shown in Exhibit "C". City Attorney Approved Version 5/12/11 1 12. Section 8.04 D shall be replaced with the following: D. Fuel Adjustment. The Contractor (PTS) shall have the right to an adjustment of those portions of the PTS Solid Waste Fee which contain the elements of the Contractor's costs relative to the purchase of fuel for transportation services. As of the date of this agreement, the Contractor has determined and the City has agreed that the portion of the PTS Solid Waste Fee which is sensitive to cost of diesel fuel to be $8.46 (hereafter referred to as "Fuel Baseline"). Contractor and City agree to annually adjust (increase or decrease) the Fuel Baseline portion of the PTS Solid Waste Fee by the 12-month trailing change in the Weekly Retail On-Highway Diesel Prices, California Index provided by the U.S. Energy Information Administration. If for practical business reasons, the Contractor or its provider of transportation services were to change its vehicles from diesel to some other form of energy, the Contractor and City will meet and mutually agree on a new index to replace the Weekly Retail on-Highway Diesel Prices Index and a new Fuel Baseline. The first adjustment to the Fuel Baseline shall be made on July 1, 2013. The Contractor shall prepare and submit to the City its calculation of the adjusted Fuel Baseline component in accordance with the provisions of Section 8.04.E titled "Adjustment Schedule". The 12-month trailing change will be based on the 12-months in the calendar year preceding the proposed July 1 rate adjustment (January-December). 13. Section 8.04 shall be revised to include the following: F. Adjusted PTS Solid Waste Fee. The Adjusted Solid Waste Fee shall be calculated as shown in Exhibit "C". 14. Section 8.05 shall be revised as follows: 8.05 PTS Organic Fees (Alternative Daily Cover and Compost) A. General. The initial PTS Organic Fees include compensation for Transfer Station services. Transportation of City Waste to Designated landfills. Processing of organic materials for use as alternative daily cover or to produce compost, Disposal Services, and all applicable Governmental Fees. The PTS Organic Fees shall be effective during the Initial PTS Operating Period. The PTS Organic Fees are separated into three components: The Base Component, the Fuel Component and Govemmental Fee Component. The adjustment process for the PTS Organic Fees is presented in Section 8.06. The initial rates, which will be effective on July 1, 2012, are included in Exhibit "A". B. Base Component. The initial Base Component is that portion of the PTS Organic Fees comprised of the Contractor's fixed and variable costs, excluding the Fuel Component. The Base Component shall be adjusted annually during the Initial Operating Period to reflect 90% of the change in the CPI values as specified in Section 8.06B, but will not otherwise be adjusted except as the result of a modification to the scope of services as provided in Section 16.15. The initial Base Component, which will be effective on July 1, 2012, is included in Exhibit "B". C. Governmental Fee Component. The Governmental Fee Component is that portion of the PTS Organic Fees comprised of the Contractor's Governmental Fees. The Governmental Fee Component is subject to adjustment only as necessary to reflect changes in Governmental Fees required by third parties as provided in Section 8.06C. The initial Governmental Fee Component, which will be effective on July 1, 2012, is included in Exhibit "B". City Attorney Approved Version 5/12/11 D. Fuel Component. The Fuel Component is the portion of the PTS Solid Waste Fee that contains the elements of the Contractor's costs relative to the purchase of fuel for transportation services. The initial Fuel Component, which will be effective on July 1, 2012, is included in Exhibit "B". 15. Section 8.06B shall be revised as follows: Base Component Annual Adjustment. The annual change to the Base Component of the PTS Organic Fee shall be calculated using 90% of the percentage change in the value of the CPI. If the Base Component Annual Adjustment calculation exceeds five (5) percent, the adjustment of the Base Component will be limited to five (5) percent. The specific adjustments shall be rounded to the nearest cent per Ton. The adjustments to the Base component shall be made as shown in Exhibit "C". 16. Section 8.06D shall be replaced with the following: D. Fuel Component Adjustment. The Contractor (PTS) shall have the right to an adjustment of those portions of the PTS Solid Waste Fee which contain the elements of the Contractor's costs relative to the purchase of fuel for transportation services. As of the date of this agreement, the Contractor has determined and the City has agreed that the portion of the PTS Solid Waste Fee which is sensitive to cost of diesel fuel to be $8.46 (hereafter referred to as "Fuel Baseline"). Contractor and City agree to annually adjust (increase or decrease) the Fuel Baseline portion of the PTS Solid Waste Fee by the 12-month trailing change in the Weekly Retail On-Highway Diesel Prices, California Index provided by the U.S. Energy Information Administration. If for practical business reasons, the Contractor or its provider of transportation services were to change its vehicles from diesel to some other form of energy, the Contractor and City will meet and mutually agree on a new index to replace the Weekly Retail on-Highway Diesel Prices Index and a new Fuel Baseline. The first adjustment to the Fuel Baseline shall be made on July 1,2013. The Contractor shall prepare and submit to the City its calculation of the adjusted Fuel Baseline component in accordance with the provisions of Section 8.04.E titled "Adjustment Schedule". The 12-month trailing change will be based on the 12-months in the calendar year preceding the proposed July 1 rate adjustment (January-December). 17. Section 8.06 shall be revised to include the following: F. Adjusted PTS Organic Fees. The Adjusted PTS Organic Fees shall be calculated as shown in Exhibit "C". 18. The following sections shall be included in the agreement as section 8.06.1 and 8.06.2 and shall be inserted after section 8.06 in its entirety, and before section 8.07: 8.06.1 PTS Construction and Demolition Fee A. General. The PTS Construction and Demolition Fee includes compensation for Transfer Station services. Transportation of PTS Construction and Demolition Debris to the Otay Landfill for processing using the current equipment and processing methods and operations employed at the Otay Landfill for construction and demolition debris. Disposal Services, and all applicable Government Fees. The Construction and Demolition materials currently processed at the Otay Landfill include the following: cardboard, metal, wood, concrete, plastic, and gypsum board. The minimum diversion rate shall be 50%. The PTS Construction & Demolition Fee shall be effective during the Initial PTS City Attorney Approved Version 5/12/11 Operating Period. The PTS Construction & Demolition Fee is separated into three components: The Base Component, the Fuel Component and Government Fee Component. The initial rates, which will be effective on July 1, 2012, are included in Exhibit "B". Should the City request changes to the current processing equipment, methods or operations for construction and demolition debris at the Otay landfill, the parties shall negotiate in good faith a revised scope of services and revised PTS Construction and Demolition Fee applicable to PTS Construction and Demolition Debris; but neither party shall be bound by this provision to agree on any revised services or fees. B. Base Component. The initial Base Component is that portion of the PTS Construction and Demolition Fee comprised of the Contractor's fixed and variable costs, excluding the Fuel Component. The Base Component shall be adjusted annually during the Initial Operating Period to reflect 90% of the change in the CPI values as specified in Section 8.06.2B, but will not othenA/ise be adjusted except as the result of a modification to the scope of services as provided in Section 16.15. The initial Base Component, which will be effective on July 1, 2012, is included in Exhibit "B". C. Governmental Fee Component. The Governmental Fee Component is that portion of the PTS Construction and Demolition Fee comprised of the Contractor's Governmental Fees. The Governmental Fee Component is subject to adjustment only as necessary to reflect changes in Governmental Fees required by third parties as provided in Section 8.06,2.C. The initial Governmental Fee Component, which will be effective on July 1, 2012, is included in Exhibit "B". D. Fuel Component. The Fuel Component is the portion of the PTS Construction and Demolition Fee that contains the elements of the Contractor's costs relative to the purchase of fuel for transportation services. The initial Fuel Component, which will be effective on July 1, 2012, is included in Exhibit "B". 8.06.2 Adjustment of PTS Construction and Demolition Fee A. General. The intent of this Agreement is to provide for an annual adjustment to the PTS Construction and Demolition Fee during the Initial PTS Operating Period. The first annual adjustment to the Base Component and the Fuel Component of the PTS Construction and Demolition Fee will be effective July 1, 2013. B. Base Component Annual Adjustment. The annual change to the Base Component of the PTS Construction and Demolition Fee shall be calculated using 90% of the percentage change in the value of the CPI. If the Base Component Annual Adjustment calculation exceeds five (5) percent, the adjustment of the Base Component will be limited to five (5) percent. The specific adjustments shall be rounded to the nearest cent per Ton. The adjustments to the Base component shall be made as shown in Exhibit "C". C. Governmental Fee Component Annual Adjustment. The PTS Construction and Demolition Fee includes all applicable Governmental Fees as of the Effective Date. The Governmental Fee Component of the PTS Construction and Demolition Fee shall be adjusted in the same manner described in Section 8.06.2C. D. Fuel Component Adjustment. The Contractor (PTS) shall have the right to an adjustment of those portions of the PTS Construction and Demolition Fee which contain the elements of the Contractor's costs relative to the purchase of fuel for transportation services. As of the date of this agreement, the Contractor has determined and the City has agreed that the portion of the PTS Solid Waste Fee which is sensitive to cost of City Attorney Approved Version 5/12/11 16 diesel fuel to be $8.46 (hereafter referred to as "Fuel Baseline"). Contractor and City agree to annually adjust (increase or decrease) the Fuel Baseline portion of the PTS Construction and Demolition Fee by the 12-month trailing change in the Weekly Retail On-Highway Diesel Prices, California Index provided by the U.S. Energy Information Administration. If for practical business reasons, the Contractor or its provider of transportation services were to change its vehicles from diesel to some other form of energy, the Contractor and City will meet and mutually agree on a new index to replace the Weekly Retail on-Highway Diesel Prices Index and a new Fuel Baseline. The first adjustment to the Fuel Baseline shall be made on July 1, 2013. The Contractor shall prepare and submit to the City its calculation of the adjusted Fuel Component in accordance with the provisions of Section 8.06.2E titled "Adjustment Schedule". The 12-month trailing change will be based on the 12-months in the calendar year preceding the proposed July 1 rate adjustment (January-December). E. Adjustment Schedule. The adjustment schedule shall be made in a manner equivalent to the procedures described in Section 8.04.E. F. Adjusted PTS Construction and Demolition Fees. The Adjusted PTS Construction and Demolition Fees shall be calculated as shown in Exhibit "C". 19. The final two sentences of Section 8.07 shall be removed. These sentences reference PTS reducing rates to the City of San Diego, and implications of such an event occurring to the City of Carlsbad. 20. The attached Exhibit "A" shall serve as the initial fee schedule at the commencement of the Initial PTS Operating Period extension. 21. The attached Exhibit "B" shall serve as the initial detailed fee schedule for each component of the PTS Solid Waste Fee, PTS Organic Fee - Alternative Daily Cover, PTS Organic Fee - Compost, and PTS Construction & Demolition Fee. 22. The attached Exhibit "C" shall serve as an example of how the PTS fees will be adjusted annually. 23. All referenced amendments to the agreement shall be effective starting on June 1, 2012, with the City-Regulated Service Fees described in Exhibits "A" and "B" going into effect on July 1, 2012. 24. All future adjustments of the PTS Solid Waste fee shall occur on July 1 of each year. 25. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 26. All requisite insurance policies to be maintained by Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. /// /// City Attorney Approved Version 5/12/11 27. The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR PALOMAR TRANSFER STATION, INC., a California corporation CITY OF CARLSBAD, a municipal corporation of the State of California (print name/title) By: Mayor ATTEST: By: (sign here) lORRAINE M. "^t^k^^^p^^ City Clerk - •• (print name/title) ^ <<- If required by City, proper notarial acknowledgment of executi^ ^^p^witr^tor must be attached. If a corporation. Agreement must be signed by one corpora1fe'<g)^(p^ofrom each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: Assistant City Attonhey City Attorney Approved Version 5/12/11 /2. EXHIBIT "A" CITY-REGULATED SERVICE FEES EFFECTIVE JULY 1,2012 City-Regulated Service Fees Commodity Price Per Ton (1) PTS Solid Waste Fee $39.00 PTS Organic Fee - Alternative Daily Cover $36.00 PTS Organic Fee - Compost (2) $40.00 PTS Construction & Demolition Fee (3) $55.00 (1) PTS responsible for transfer transport and disposal of all tons delivered to PTS. (2) Fee effective if the City and Contractor agree for future use of green waste as compost rather than Alternative Daily Cover (ADC). (3) PTS staff will be responsible for load inspection to ensure loads are sufficiently free of trash to warrant C&D classification /3 EXHIBIT "B" CITY-REGULATED SERVICE FEES DETAILED FEE SCHEDULE The PTS Solid Waste Fee, PTS Organic Fee - Alternative Daily Cover, PTS Organic Fee - Compost, and PTS Construction & Demolition Fee are each comprised of a Base Component, a Fuel Component, and Government Fees. Following are the initial rates for each component that become effective on July 1, 2012. Component Per Ton Charges Component PTS Solid Waste Fee PTS Organic Fee - Alternative Daily Cover PTS Organic Fee - Compost PTS Construction & Demolition Fee Base $26.48 $23.48 $27.48 $42.48 Fuel $8.46 $8.46 $8.46 $8.46 Government Fees $4.06 $4.06 $4.06 $4.06 Total Per Ton Charge $39.00 $36.00 $40.00 $55.00 1^ EXHIBIT "C" ADJUSTED CITY-REGULATED SERVICE FEES Base Component Adjustments Using the PTS Solid Waste Fee as an example, below is methodology for how the annual Base Component adjustment for all City-Regulated Service Fees shall be calculated. Adjusted PTS Solid Waste Fee Base Component = Base Component of the PTS Solid Waste Fee X 90% of (the most recent CPI value/previous 12-month CPI value): For example, assume: 1. Date of first annual adjustment is July 1, 2013 2. Then-current Base Component of the PTS Solid Waste Fee = $26.48 3. Most recent CPI value (February 2012) =245.464 4. Previous 12-month CPI value (February 2011) = 242.270 The Base Component calculated as follows: Adjusted PTS Solid Waste Fee Base Component = $26.48 x (((245.464/242.270)-1)*.9)+1) = $26.79 per ton If the Adjusted PTS Solid Waste Fee Base Component Annual Adjustment calculation exceeds five (5) percent, the adjustment of the Base Component will be limited to five (5) percent. Fuel Component Adjustments The annual Fuel Component adjustment (increase or decrease) shall follow the below example. The 12-month trailing change will be based on the 12-months in the calendar year preceding the proposed July 1 rate adjustment (January-December). For example, assume: Retail On-Highway Diesel Price, California Index (California No 2 Diesel Retail Prices) as of July 1, 2012:4.000 Prices Per Index - 2012 January 4.05 February 4.10 March 4.12 April 4.10 May 4.10 June 4.07 July 4.00 August 4.04 September 4.05 October 4.00 November 4.00 December 4.00 Weighted average 4.0525 Change in rate 1.31% (from 4.000) Rate adjustment $8.46x1.0131 =$8.57 l6 Government Fee Adjustments The annual net change to the Governmental Fees shall be made to reflect any adjustment (either increase or decrease) in Governmental Fees subsequent to the Effective Date. The current Government Fees as of January 1, 2012 are: City of Carisbad (Host Fee): $2.50/ton State Board of Equalization Fees: $1.40/ton Countv of San Dieqo (Local Enforcement Agencv Fee): $0.16/ton Total Government fees: $4.06/ton Adjusted PTS Solid Waste Fee Example: Component PTS Solid Waste Fee (Per Ton) Component June 1,2012 July 1,2013 Base $26.48 $26.79 Fuel $8.46 $8.57 Government Fees $4.06 $4.06 Total Per Ton Charge $39.00 $39.42 /6 c3 PILLSBURY WINTHROPLLP 11682 EL CAMINO REAL SUITE 200 SAN DIEGO. CA 92130-2092 619.234.5000 F: 858.509.4010 June 19,2002 Ronald Ball, Esq. City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Re: Palomar Transfer Station - Carlsbad, CA Our File No. 044084-0000012 Dear Ron: Phone: 858.509.4058 Carmela D. Nicholas cnicholas@pillsburywinthrop.com With reference to that certain Agreement for Transfer Station and Disposal Services dated as of June 1,2002 by and between the City of Carlsbad and Palomar Transfer Station, Inc., enclosed is an original executed Secretary’s Certificate dated May 24,2002 attaching resolutions adopted by the Board of Directors of Allied Waste North America, InC. If you have any questions, please do not hesitate to call me. la D. Nicholas Enclosure cc: Jo Lynn White, Esq. (w/o encl.) Mr. James Ambroso (w/o encl.) Mr. Dick “Bud” F. Chase, Jr. (w/o encl.) Eric A. Kremer, Esq. (w/o encl.) CERTIFICATE The undersigned certifies that she is the duly elected, qualified and acting Assistant Secretary of ALLIED WASTE NORTH AMERICA, INC., a Delaware corporation (the "Corporation") and that attached hereto as Schedule A is a true and correct copy of resolutions duly adopted by the Board of Directors of the Corporation, and that such resolutions have not been amended or rescinded and are in full force and effect on the date hereof. Dated: May 24,2002. SCHEDULE A WHEREAS, Palomar Transfer Station, Inc., a California corporation (“PTS”), is a wholly-owned subsidiary of the Company; WHEREAS, PTS desires to enter into certain transactions whereby PTS would (i) assign to the City of Carlsbad, California (the “City”) all rights, title and interests of PTS in a certain lease with the County of San Diego, California, whereby PTS will lease a transfer station commonly known as the Palomar Transfer Station, located in Carlsbad, California, and (ii) sublease said transfer station from the City and operate same pursuant to a certain Agreement for Transfer Station and Disposal Services (the “Transfer Station Agreement”) between PTS and the City; WHEREAS, the Transfer Station Agreement requires that the Company shall unconditionally guarantee the performance of PTS’s obligations under the Transfer Station Agreement (the “Obligations”); WHEREAS, the Board believes it is in the best interests of the Company to enter into a certain guarantee whereby the Company shall unconditionally guarantee the Obligations in order to permit PTS to enter into the Transfer Station Agreement with the City; and WHEREAS, the Board has reviewed proposed drafts of, or otherwise been provided with detailed information with respect to a Guarantee made by the Company in favor of the City (the “Guarantee”). NOW, THEREFORE, BE IT RESOLVED, that the Guarantee, in the form presented to the Board, is hereby approved, and the chairman, president, vice president and secretary, assistant secretary, chief financial officer, and assistant treasurer of the Company are authorized and instructed, for and in the name of the Company, to execute and deliver the Guarantee in substantially the form that was presented to the Board, with such changes in such Guarantee as the person executing the same shall approve, such approval to be conclusively evidenced by the execution and delivery thereof. Omnibus RESOLVED, that the officers of the Company are, and each acting alone is, hereby authorized, empowered and directed, for and on behalf of the Company, to take or cause to be taken any and all actions, including, without limitation, the execution, acknowledgment, filing, amendment and delivery of any and all papers, agreements, documents, instruments and certificates, and the payment of such sums, as such officers may deem necessary or advisable to carry out and perform the obligations of the Company under the foregoing resolutions and to consummate the transactions contemplated therein and otherwise carry out the purposes and intent of the foregoing resolutions; and the performance of any such acts and the execution, acknowledgment, filing and delivery by such officers of any such papers, agreements, documents, instruments and certificates shall conclusively evidence their authority therefor. Q PILLSBURY WINTHROPLL~ 11682 EL CAMtNO REAL SUITE 200 SAN DIEGO, CA 92130-2092 619.234.5000 F: 858.509.4010 June 13.2002 Ronald Ball, Esq. City of Carlsbad 1200 Cwlsbad Village Drive Carlsbad, CA 92008 Re: Carlsbad Transfer Station Agreement Our File No. 014279-0000012 Dear Ron: Phone: 858.509.4058 Carmela D. Nicholas cnicholas@pillsburywinthrop.com Enclosed for your files is an original fully-executed Assignment of Lease - County Contract with Palomar Transfer Station, APN No. 97-0085-A1 dated June 1,2002 by Palomar Transfer Station, Inc., as Assignor, City of Carlsbad, as Assignee, and the County of San Diego, as a consenting party. Enclosure cc: Mr. Frank Mannen (w/o end) Jo Lynn White, Esq. (w/o encl.) Mr. James Ambroso (w/o encl.) Mr. Dick "Bud" F. Chase, Jr. (w/o encl.) Eric A. Kremer, Esq. (w/o encl.) 70020737~1 ASSIGNMENT OF LEASE COUNTY CONTRACT WITH PALOMAR TRANSFER STATION APN NO. 97-0085-A1 For a valuable consideration, receipt of which is hereby acknowledged, Palomar Transfer Station, Inc., a California corporation, as ASSIGNOR, hereby assigns and transfers to City of Carlsbad, a municipal corporation, as ASSIGNEE, all right, title, and interest of the undersigned as Lessee in and under that certain Lease known as the Palomar Transfer Station Lease Agreement, APN # 97-0085-A1 with County of San Diego, Dated October 31, 1997 between the County of San Diego, a political subdivision of the State of California, as Lessor, and Palomar Transfer Station, Inc., a California corporation, as Lessee. SFER STATION, INC., a California corporation Dated: June 1, 2002 Dated: June 1, 2002 ACCEPTANCE OF ASSIGNMENT The undersigned Assignee hereby accepts the foregoing assignment and hereby agrees to keep, perform and be bound by all the terms, covenants, and conditions in said Lease on the part of the Lessee therein to be kept and performed as though the undersigned Assignee was the original Lessee thereunder. ASSIGNEE: CITY OF CARLSBAD. a municiDal coruoration CONSENT TO ASSIGNMENT (BIS Auth. 7/30/85 (8)) The COUNTY OF SAN DIEGO does hereby consent to the above assignment. In the event the assignment of this leasehold is not legally consummated within 60 days from the date upon which the COUNTY OF SAN DIEGO took action consenting to the assignment, this consent shall become automatically void and of no further effect. Dated Il&..q 5-1, 2002 I County Lease Administrator AGREEMENT FOR TRANSFER STATION AND DISPOSAL SERVICES BETWEEN THE CITY OF CARLSBAD AND PALOMAR TRANSFER STATION, INC. 70017373V1 TABLE OF CONTENTS ARTICLE 1 DEFINITIONS ............................................................................................................ 2 ARTICLE 2 TERM AND OPERATING PERIODS OF AGREEMENT ..................................... 17 2.02 CONDITIONS TO EFFECTIVENESS OF AGREEMENT ................................ 17 2.04 2.05 PTS OPERATING PERIOD 18 CTS CONTRACTOR OPERATING PERIOD .................................................... 19 2.06 CTS MARKETING PERIOD ............................................................................... 20 ARTICLE 3 TRANSFER STATION SERVICES ........................................................................ 21 2.01 EFFECTIVE DATE .............................................................................................. 17 2.03 TERM ................................................................................................................... 18 ................................................................................. 3.01 3.02 3.03 3.04 3.05 3.06 3.07 3.08 3.09 3.10 3.11 3.12 3.13 3.14 3.15 3.16 3.17 3.18 3.19 3.20 3.21 3.22 3.23 3.24 3.25 3.26 3.27 3.28 3.29 3.30 3.31 3.32 GENEFUL ............................................................................................................ 21 PALOMAR TRANSFER STATION CAPITAL IMPROVEMENTS ................. 21 CITY TRANSFER STATION DEVELOPMENT ............................................... 22 OPERATIONS AND MAINTENANCE STANDARDS ..................................... 23 GENERAL DESCRIPTION OF OPERATING REQUIREMENTS ................... 23 RECEIPT OF PERMITTED MATERIALS ......................................................... 24 TRANSFER STATION THROUGHPUT GUARANTEE AND WASTE ACCEPTANCE PRIORITY ................................................................................. 24 OPERATING DAYS AND HOURS .................................................................... 25 PERMITS .............................................................................................................. 26 EQUIPMENT. REPAIR. AND MAINTENANCE .............................................. 27 LITTER AND VECTORS 28 SAFETY 28 MEETINGS .......................................................................................................... 29 COMPLAINTS ABOUT TRANSFER STATION OPERATION ....................... 29 SIGNAGE .................................... i ........................................................................ 29 ACCOMMODATING TRANSFER STATION USERS ..................................... 29 REJECTION OF UNPERMITTED MATERIAL ................................................ 30 CITY RIGHT TO ACCESS TRANSFER STATION .......................................... 31 TREATMENT OF CUSTOMERS ....................................................................... 31 PROFESSIONALISM .......................................................................................... 31 COOPERATION AND DISPUTES ..................................................................... 31 PERSONNEL ....................................................................................................... 31 SCALE OPERATION .......................................................................................... 33 COLLECTION OF SERVICE FEES ................................................................... 34 VEHICLE TURNAROUND TIME ...................................................................... 34 BUYBACKDROP-OFF CENTER ...................................................................... 35 RECEIPT AND TRANSFER OF SOURCE SEPARATED RECYCLABLE MATERIALS ........................................................................................................ 35 MATERIALS RECOVERY ACTIVITIES .......................................................... 35 MARKETING OF RECOVERED MATERIALS ................................................ 36 WASTE REQUIRING DISPOSAL ...................................................................... 37 ............................................................................................................... .................................................................................... OPERATIONS AND MAINTENANCE MANUAL ........................................... 28 PROVISION OF EMERGENCY SERVICES ..................................................... 30 1 70017373V1 3.33 SECURITY ........................................................................................................... 37 3.34 OWNERSHIP OF PERMITTED MATERIALS .................................................. 37 3.35 CONTRACTOR OPERATIONAL AREA .......................................................... 37 ............................................................. 3.36 STANDARD INDUSTRY PRACTICES 38 ARTICLE 4 TRANSPORTATION SERVICES ........................................................................... 38 4.02 4.03 TRANSPORT EQUIPMENT 39 MODE OF TRANSPORT .................................................................................... 39 4.04 PROHIBITION OF DISPOSAL OF RECOVERED MATERIALS .................... 39 4.06 HIGHWAY ROLLING STOCK LOADING STANDARD ................................ 39 4.08 VEHICLE PARKING, FUELING AND MAINTENANCE ............................... 40 4.10 STANDARD INDUSTRY PRACTICES ............................................................. 40 ARTICLE 5 DISPOSAL SERVICES ............................................................................................ 40 5.01 ............................................................................................................ 5.02 RESPONSIBILITIES OF THE CONTRACTOR ................................................ 40 GENERAL 40 5.03 RECEIVING AND OPERATING HOURS ......................................................... 41 5.04 SCALE OPERATION .......................................................................................... 41 5.05 RIGHT TO ENTER FACILITY AND OBSERVE OPERATIONS .................... 42 5.06 RECORD KEEPING ............................................................................................ 42 5.07 MEETINGS .......................................................................................................... 42 5.08 CONTRACTOR LANDFILL CAPACITY GUARANTEE AND WASTE 5.09 ACCEPTANCE PRIORITY 42 5.10 CONTRACTOR REPRESENTATIVE 42 STANDARD-INDUSTRY PRACTICES .............................................. ; .............. 42 ARTICLE 6 SUESEQUENT PTS OPERATING PERIOD .......................................................... 43 6.01 GENERAL ............................................................................................................ 43 6.02 TRANSFER STATION SERVICES .................................................................... 43 6.03 CITY RIGHT TO TRANSFER (CITY USE PERIOD) ....................................... 43 6.04 RECEIPT OF PERMITTED MATERIALS ......................................................... 43 6.05 TRANSFER STATION THROUGHPUT GUARANTEE AND WASTE 6.06 RECEIVING PRIORITY 44 6.07 MATERIALS RECOVERY ACTIVITIES 44 TRANSPORTATION, DISPOSAL, AND PROCESSING SERVICES .............. 44 6.08 CONTRACTOR'S RIGHT OF FIRST OFFER ................................................... 44 ARTICLE 7 CTS MARKETING PERIOD ................................................................................... 44 7.01 GENERAL ............................................................................................................ 44 7.02 TRANSFER STATION SERVICES .................................................................... 45 7.03 CTS MARKETING PERIOD ............................................................................... 45 7.04 RECEIPT OF PERMITTED MATERIALS ......................................................... 45 7.05 PROFESSIONALISM .......................................................................................... 45 4.01 GENERAL ............................................................................................................ 38 ............................................................................... 4.05 TRANSPORT ROUTES ....................................................................................... 39 4.07 LITTER PREVENTION ....................................................................................... 39 4.09 TRANSPORT PERMIT ........................................................................................ 40 ................................................................................. ................................................................ ...................................................................................... .......................................................... 11 70017373V1 7.06 COOPERATION AND DISPUTES ..................................................................... 45 ARTICLE 8 CONTRACTORS COMPENSATION DURING INITIAL PTS OPERATING ................................................................................................................. 8.01 PERIOD 46 8.02 GENERAL 46 8.03 SERVICE FEES 46 8.04 PTS SOLID WASTE FEE 47 ADJUSTMENT OF PTS SOLID WASTE FEE ................................................... 47 8.05 PTS ORGANIC TRANSFER FEE ....................................................................... 49 8.06 ADJUSTMENT OF PTS ORGANIC TRANSFER FEE ..................................... 50 8.07 CITY IS MOST FAVORED CUSTOMER .......................................................... 51 8.08 8.09 LIQUIDATED DAMAGES 51 8.10 RECOVERED MATERIALS REVENUE 52 PAYMENT OF GOVERNMENTAL FEES AND PROCESSING COSTS ......... 52 8.1 1 PAYMENT OF TAXES ....................................................................................... 52 ............................................................................................................ .................................................................................................... .................................................................................... ................................................................................. ........................................................... ARTICLE 9 CONTRACTOR'S COMPENSATION DURING SUsSEQUENT PTS OPERATING PERIOD ......................................................................................... 52 9.01 GENERAL ............................................................................................................ 52 9.02 SERVICE FEES .................................................................................................... 53 9.04 INITIAL ADJUSTMENT OF CITY USE FEE .................................................... 54 9.05 ANNUAL ADJUSTMENT OF CITY USE FEE ................................................. 55 9.06 CITY IS MOST FAVORED CUSTOMER .......................................................... 56 9.07 LIQUIDATED DAMAGES ................................................................................. 57 9.08 RECOVERED MATERIALS REVENUE ........................................................... 57 9.09 PAYMENT OF GOVERNMENTAL FEES ........................................................ 57 9.10 PAYMENT OF TAXES ....................................................................................... 57 9.03 CITY USE FEE ..................................................................................................... 53 ARTICLE 10 CONTRACTOR'S COMPENSATION DURING CTS CONTRACTOR ......................................................................................... 10.01 OPERATING PERIOD 57 GENERAL ............................................................................................................ 57 ARTICLE 11 CONTRACTOR PAYMENT TO CITY DURING CTS MARKETING PERIOD57 11.01 GENERAL ............................................................................................................ 57 ARTICLE 12 PAYMENTS TO THE CITY .................................................................................. 58 12.01 ............................................................................................................ 12.02 MONTHLY PAYMENT DUE TO THE CITY 58 GENERAL 58 12.03 WASTE PROCESSING FEE ............................................................................... 58 12.04 FRANCHISE FEE ................................................................................................ 58 12.05 TRANSFER STATION LEASE PAYMENT ...................................................... 59 12.06 LIQUIDATED DAMAGES ................................................................................. 59 12.07 AVOIDED DISPOSAL COSTS ........................................................................... 59 ARTICLE 13 CONTRACTOR RECORD KEEPING AND REPORTING ................................. 59 13.01 GENERAL ............................................................................................................ 59 .................................................... 7M)I7373Vl iii 13.02 REPORT FORMAT AND SUBMITTAL REQUIREMENTS ............................ 60 13.03 CITY REVIEW AND INSPECTION OF RECORDS ......................................... 61 13.04 ....................................................................................... 13.05 QUARTERLY REPORT REQUIREMENTS 62 RECORD RETENTION 61 13.06 ANNUAL REPORT REQUIREMENTS ............................................................. 62 13.07 CERCLA DEFENSE RECORDS ......................................................................... 63 13.08 OTHER RECORDS .............................................................................................. 63 13.09 ADVERSE INFORMATION ............................................................................... 63 13.10 CITY’S RIGHT TO LOCAL ENFORCEMENT AGENCY REPORTS ............. 64 13.11 MEET AND CONFER WITH CITY ................................................................... 64 ARTICLE 14 INDEMNITY, INSURANCE AND BOND ........................................................... 64 14.01 INDEMNIFICATION ........................................................................................... 64 14.02 INSURANCE ........................................................................................................ 65 14.03 FAITHFUL PERFORMANCE BOND ................................................................ 68 14.04 SECURITY INTEREST IN LIEU OF BOND ..................................................... 68 14.05 EXTENT OF COVERAGE .................................................................................. 69 14.06 EXCLUSION FROM INDEMNITY OBLIGATION .......................................... 69 ARTICLE 15 DEFAULT BY CONTRACTOR ............................................................................ 70 15.01 EVENTS OF DEFAULT ...................................................................................... 70 15.02 RIGHT TO CURE ................................................................................................ 71 15.03 RIGHT TO TERMINATE UPON DEFAULT ..................................................... 71 1 5.04 LIQUIDATED DAMAGES ................................................................................. 72 15.05 EXCUSE FROM PERFORMANCE .................................................................... 74 15.06 RIGHT TO PERFORM ........................................................................................ 74 15.07 CITY’S REMEDIES CUMULATIVE, SPECIFIC PERFORMANCE ................ 74 15.08 DEFAULT BY DESIGNATED HAULER .......................................................... 75 15.09 DEFAULT BY CITY ....................... : ................................................................... 75 ARTICLE 16 OTHER AGREEMENTS OF THE PARTIES ....................................................... 75 16.01 RELATIONSHIP OF PARTIES ........................................................................... 75 16.02 COMPLIANCE WITH LAW AND CITY CODES ............................................. 75 16.03 GOVERNING LAW ............................................................................................. 76 16.04 16.05 JURISDICTION 76 16.06 CONTRACTOR REQUEST FOR ASSIGNMENT 77 ASSIGNMENT BY CONTRACTOR 76 16.07 BINDING ON SUCCESSORS ............................................................................. 78 16.08 PARTIES IN INTEREST ..................................................................................... 78 16.09 WAIVER ............................................................................................................... 78 16.10 NOTICES .............................................................................................................. 78 16.11 REPRESENTATIVES OF THE PARTIES .......................................................... 78 16.12 COMPILATION OF INFORMATION FOR STATE LAW PURPOSES ........... 79 16.13 GUARANTY OF CONTRACTOR‘S PERFORMANCE .................................... 79 16.14 DISPUTE RESOLUTION .................................................................................... 79 16.15 MODIFICATIONS TO SCOPE OF SERVICE ................................................... 79 ...................................................... ................................................................................................... .................................................................. ............................................. 10017313V1 iv 16.16 16.17 16.18 16.19 16.20 16.21 16.22 16.23 16.24 16.25 16.26 16.27 16.28 16.29 MEANS AND METHODS OF SOLID WASTE MANAGEMENT PRACTICES MAINTENANCE OF SEPARATE ACCOUNTING RECORDS 81 81 SUBCONTRACTING .......................................................................................... 81 TRANSITION TO NEXT CONTRACTOR ........................................................ 81 CONTRACTOR'S INVESTIGATION ................................................................. 81 CITY FREE TO NEGOTIATE WITH THIRD PARTIES ................................... 81 PRIVACY ............................................................................................................. 82 CITY TRANSFER STATION FINANCING ASSUMPTION ............................ 82 INTEGRATED CONTRACT ............................................................................... 82 INSERTED PROVISIONS ................................................................................... 82 AGREEMENT IN FULL EFFECT ...................................................................... 82 NO COMPETITION ............................................................................................. 82 COMPLIANCE WITH AGREEMENT ............................................................... 83 EFFECT ON CONDITIONAL USE PERMIT ..................................................... 83 ............................................................................................................................... ....................... ARTICLE 17 MISCELLANEOUS PROVISIONS ....................................................................... 83 17.01 EXHIBITS ............................................................................................................ 83 17.02 SECTION HEADINGS ................................. : ...................................................... 83 17.03 INTERPRETATION ............................................................................................. 83 17.04 AMENDMENT ..................................................................................................... 83 17.05 SEVERABILITY .................................................................................................. 83 17.06 REFERENCES TO LAWS ................................................................................... 83 17.07 DEFINITIONS ...................................................................................................... 83 17.08 COUNTERPARTS ............................................................................................... 83 ARTICLE 18 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR ............ 84 18.01 CORPORATE STATUS ....................................................................................... 84 ..................... ............................................... 18.02 CORPORATE AUTHORIZATION : 84 18.03 AGREEMENT WILL NOT CAUSE BREACH .................................................. 84 18.04 NO LITIGATION ................................................................................................. 84 18.05 ABILITY TO PERFORM ..................................................................................... 84 ARTICLE 19 REPRESENTATIONS AND WARRANTIES OF CITY ...................................... 84 19.01 ............................................................................................................... 19.02 CITY AUTHORIZATION 84 STATUS 84 19.03 AGREEMENT WILL NOT CAUSE BREACH .................................................. 85 19.04 NO WARRANTY ................................................................................................. 85 19.05 NO CONFLICTS .................................................................................................. 85 19.06 NO APPROVALS ................................................................................................ 85 19.07 NO LITIGATION ................................................................................................. 85 19.08 PUBLIC WORKS ................................................................................................. 85 ................................................................................... 70017373V1 V EXHIBITS A PALOMAR TRANSFER STATION LEASE AGREEMENT B SUBLEASE AND DISPOSAL AGREEMENT BETWEEN ALLIED WASTE INDUSTRIES, INC. AND WASTE MANAGEMENT, INC. C SUBLEASE AGREEMENT FOR PALOMAR TRANSFER STATION BETWEEN THE CITY AND THE CONTRACTOR D GUARANTY AGREEMENT E CAPITAL IMPROVEMENT PROJECTS AND COMPLETION SCHEDULE FOR PALOMAR TRANSFER STATION SCHEDULE 2.04 CTS DEVELOPMENT MILESTONES SCHEDULE 14.04 FORM OF UCC FINANCING STATEMENT 1 AGREEMENT FOR TRANSFER STATION AND DISPOSAL SERVICES 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 T~S AGREEMENT FOR TRANSFER STATION AND DISPOSAL SERVICES is made as of June 1,2002, by and between the City of Carlsbad (the “City”), a municipal corporation of the State of California, and Palomar Transfer Station, Inc. (the “Contractor”). a California corporation (collectively “Parties”). RECITALS Whereas, the State of California through enactment of the California Integrated Waste Management Act of 1989, has directed all local agencies, to promote Recycling and to maximize the use of feasible source reduction, Recycling and composting options in order to reduce the amount of municipal solid waste that must be disposed of by land disposal and to plan for disposal of municipal solid waste generated in the City and this Agreement will assist the City in meeting these requirements; and Whereas, the City needs a facility to Accept and Transfer City Waste and wishes to ensure the long-term viability of such a facility by securing capacity at a Transfer Station owned by others or by owning a Transfer Station itself; and Whereas, the Contractor h& entered into a certain Palomar Transfer Station Lease Agreement, dated as of October 3 1, 1997 (the “County Lease”) with the County of San Diego for the Palomar Transfer Station for a term of (25) years commencing June 1,2002, with the right to fourteen (14) five (5) year extensions, a copy of which is attached hereto as Exhibit A, and, Whereas, as of the Effective Date the Contractor shall assign its interest in the County Lease to the City and the City shall become lessee under the County Lease; and Whereas, the Contractor shall retain its interest under a certain Sublease and Disposal Agreement dated May 3 1,2000 (the “WI Sublease”) between Allied Waste Industries, Inc., and Waste Management, Inc., for the sublease of the Palomar Transfer Station, a copy of which is attached hereto as Exhibit B; and Whereas, in the future the City may, but is not required to, develop and/or own a new Transfer Station in the City; and Whereas, the Contractor has the qualifications and experience to operate the Palomar Transfer Station and/or City Transfer Station and can do so in a manner and on terms contemplated herein, and Whereas, the City needs to secure Disposal capacity at one or more landfills to serve as the place of safe, legal, and permitted Disposal for City Waste that is not otherwise Diverted through source reduction, reuse, or Recycling efforts; and Whereas,’the City acknowledges that the Contractor’s assignment of the County Lease to the City reduces the Contractor’s ability to provide Transfer and Disposal services to communities and waste collection companies; therefore, the City agrees to enter into a sublease agreement (the “PTS Sublease”) with the Contractor, in the form attached hereto as Exhibit C 7W17373VI 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 38 37 whereby the City shall sublease the PTS to the Contractor, and to provide the Contractor with the right to Transfer the remaining available capacity of the Palomar Transfer Station or City Transfer Station afler first fully providing for City Waste and the right to use an operational area for twenty-five (25) years commencing June 1,2002, in exchange for the Contractor’s payment for such Transfer right in accordance with this Agreement; and Whereas, the Contractor and/or its Affiliates are the owners and operators of several landfill sites in the County of San Diego that can fulfill the City’s needs with regards to securing Disposal capacity as provided herein; and Whereas, the City has the right to secure the services herein from the Contractor through negotiations and has the authority to enter into this Agreement; and Whereas, the City wishes to engage the Contractor to provide the services specified within this Agreement, in accordance with the terms and conditions negotiated between the Parties and documented in this Agreement; NOW, THEREFORE, in consideration of the mutual promises, covenants, and conditions contained in this Agreement and for other good and valuable consideration, the Parties agree as follows: ARTICLE 1 DEFINITIONS Unless the context otherwise requires, capitalized terms used in this Agreement will have the meanings specified in this Article. “Accept” (or “Acceptance” or other variations thereof) is the transfer of ownership of Delivered Waste, Recyclable Materials, or Organic Materials to the Contractor from the Person Delivering the materials, as provided in Section 3.34. Materials will be deemed Accepted unless the Contractor rejects the materials within 24 hours of receipt. ‘‘Affiliate” means all businesses (including corporations, limited and general partnerships and sole proprietorships) which are directly or indirectly related to the Contractor by virtue of direct or indirect Ownership interest or common management shall be deemed to be ”Affiliated with” the Contractor and included within the term ”Affiliates” as used herein. An Affiliate shall include a business in which the Contractor has a direct or indirect Ownership interest, a business, which has a direct or indirect Ownership interest in the Contractor and/or a business, which is also Owned, controlled or managed by any business or individual which has a direct or indirect Ownership interest in the Contractor. “Agreement” means this Agreement for Transfer Station and Disposal Services between the City and the Contractor. “Alternative Daily Cover” means landfill cover material other than at least six (6) inches of earthen material, placed on the surface of the active face of the refuse fill area at the end of each operating day to control vectors, fires, odor, blowing litter, and scavenging as defined in Section 20164 of the California Code of Regulations. 70017373v1 2 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 “Applicable Law” means all statues, rules, regulations, Permits, orders, or requirements of the United States, State, County, City and local government authorities and agencies having applicable jurisdiction, that apply to or govern the Facilities, the Site or the performance ofthe Parties’ respective obligations hereunder in effect as of the Execution Date and as amended and/or enacted hereinafter including, but not limited to, Environmental Laws. “Article” refers to the articles of this Agreement unless otherwise specified. “Base Component” means that portion of a Service Fee that is periodically adjusted throughout the Term by CPI. “Brown Goods” means electronic equipment and other small appliances including, but not limited to, audio equipment, televisions, computers, and microwave ovens. “Bulky Goods” means discarded materials that require special handling due to their size including, but not limited to, White Goods, Brown Goods, furniture, tires, carpets, mattresses, fencing, cabinetry, household fixtures, tree trunks, and similar large items discarded as refuse, but excluding automobiles. “BuybacWDrop-Off Center” means an area located at the Transfer Station where the Contractor provides Self Haulers the opportunity to Divert Source Separated Recyclable Materials from Disposal for free or for a price paid by the Contractor to Self Hauler when market prices exist for the Recyclable Materials. “California Integrated Waste Management Act” means California Public’ Resources Code, §40000 et seq., as may be amended from time to time. “California Integrated Waste Management Board means the State entity which oversees and enforces all waste management provisions of Division 30 of the California Public Resources Code and the regulations adopted thereto. The powers adduties of the California Integrated Waste Management Board are described in California Public Resources Code $43300 to $43310, as may be amended from time to time. “Change in Law” means the occurrence of any event or change in Applicable Law as follows: (1) The adoption, promulgation, amendment, modification, rescission, revision or revocation of any Applicable Law or change in judicial or administrative interpretation thereof occurring after the date hereof; or (2) Any order or judgment of any federal, state or local court, administrative agency or governmental body issued after the date hereof if: (a) Such order or judgment is not also the result of the willful misconduct or negligent action or inaction of the Party relying thereon or of any third party for whom the Party relying thereon is directly responsible; and (b) The Party relying thereon, unless excused in writing from so doing by the other Party, shall make or have made, or shall cause or have caused to be 7W17373Vl 3 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 made, Reasonable Business Efforts in good faith to contest such order or judgment (it being understood that the contesting in good faith of such an order or judgment shall not constitute or be construed as a willful misconduct or grossly negligent action of such Party); or (3) The imposition by a governmental authority or agency of any new or different material conditions in connection with the issuance, renewal, or modification of any Permit after the Execution Date; or (4) The failure of a governmental authority or agency to issue, or the suspension or termination of, any Permit after the date hereof. “City” means the City of Carlsbad, State of California. “City Council” means the duly elected representative council, or its successor municipal governing body, of the City. “City Party(ies)” means the City, its officers, directors, employees, volunteers and agents and the Designated Haulers (only for such periods where such .Designated Haulers are under contract with the City as such). “City’s Fiscal Year” means the period commencing July 1 and concluding June 30 of the following year. “City Source Separated Organic Materials” means Organic Materials generated in the City which have been Source Separated. “City Transfer Station (or CTS)” means the Transfer Station owned and constructed by the City, which as of the Execution Date of this Agreement, has not been sited, acquired, designed, Permitted or constructed. “City Use Fee” is the compensation due to the Contractor from the Designated Hauler(s) for Acceptance of City Waste for Transfer during the City Use Period of the Subsequent PTS Operating Period. “City Use Period is that portion of the Subsequent PTS Operating Period when the Contractor operates and maintains the Transfer Station and the City exercises its right to use the Transfer Station as described in Section 2.04.C. “City Waste” means Solid Waste originally generated in the City or first collected for Disposal in the City that is Delivered to the Transfer Station by the City, Designated Hauler@) or Self Haulers. “Claim” means any claim by third parties against the Contractor including, but not limited to, injury, death of any person, damage to private property, any and all loss, liability, penalty, forfeiture, claim, demand, action, proceeding or suit of any and every kind and description, whether judicial, quasi-judicial or administrative in nature, arising out of or occasioned in any way by, directly or indirectly, the Contractor’s performance of or its failure to perform its 70017373v1 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 obligations under this Agreement, including the Contractor’s failure to comply with all Applicable Law or the Contractor’s breach of its representation and warranties under this Agreement. “Closure” means all activities and related costs involved in closure of the Designated Landfills or portions of the Designated Landfills in accordance with Applicable Law and Permits. “Conditional Use Permit” is defined in Section 3.15.C. “Contractor” means Palomar Transfer Station, Inc. (a wholly-owned subsidiary of Allied Waste North America, Inc.), a corporation organized and operating under the laws of California. “Contractor Capacity Fee” is the compensation due to the City from the Contractor for the portion of the Transfer Capacity Guarantee that is not used by the Contractor or the Contractor’s Haulers during the CTS Marketing Period. “Contractor’s Compensation” means the payment received by the Contractor in return for providing services in accordance with this Agreement. “Contractor’s Fiscal Year” means the period commencing January 1 and concluding December 3 1 of the same year. “Contractor’s Hauler@)” means the entity or entities that, separate from this Agreement, are designated by the Contractor to Deliver Solid Waste to the City Transfer Station for Transfer purposes and that use some or all of the Contractor’s Transfer Capacity Guarantee during the CTS Marketing Period. “Contractor Use Fee” is the compensation due to the City from the Contractor for Acceptance of Solid Waste Delivered to the City Transfer Station by the Contractor or the Contractor’s Haulers for Transfer during the CTS Marketing Period. “County” means the County of San Diego, California. “County Lease” is defined in the Recitals to this Agreement. “CPI” means the All Urban Consumers San Diego, CA Index (All Urban Consumers; where 1982-84 = 100) compiled and published by the United States Department of Labor, Bureau of Labor Statistics. If such index is no longer published, such other index published by the Department of Labor, Bureau of Labor Statistics or its successor agency, for the geographic area corresponding to San Diego County generally or the City specifically, shall be the index used, subject to mutual approval of the parties. “CTS (or City Transfer Station)” means the Transfer Station owned and constructed by, or for, the City, which as of the Execution Date of this Agreement, has not been sited, acquired, designed, Permitted or constructed. “CTS Contractor Operating Period means the period when the Contractor operates the City Transfer Station. The duration of such period is described in Section 2.05. 70017373V1 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 “CTS Marketing Period means the period when the Contractor shall have the right to market Transfer services to other parties. “CTS Operations Date” means the date that the City Transfer Station is ready for full operations on which date the Contractor shall commence operations of the City Transfer Station pursuant to this Agreement. “CTS Third Party Operating Period means the period when a party, other than the Contractor, that is designated by the City operates the City Transfer Station. “Deliver (Delivers or Delivery or other variations thereof)” means arrival of Permitted Materials in vehicles at the Transfer Station entrance during Facility receiving hours for the purposes of Acceptance. “Designated Hauler(s)” means the entity or entities that, separate from this Agreement, are contracted, licensed, permitted, or otherwise designated by the City to collect Permitted Materials within the City. As of the Effective Date, the Designated Hauler is Coast Waste Management, Inc. “Designated Landfill(s)” means the Solid Waste handling facilities utilized for the Disposal of City Waste received at Transfer Station by the Contractor. As of the Effective Date, the Borrego Landfill, Otay Landfill, Ramona Landfill and Sycamore Landfill, which are owned by the Contractor or its Affiliates, shall be the Designated Landfills. “Designated Organics Processing Facility” means a Permitted facility where Source Separated Organic Materials Delivered by the Designated Hauler(s) are sorted, ground, mulched or separated for the purposes of land application, Alternate Daily Cover, reuse or composting, so long as that purpose complies with the California Integrated Waste Management Act. “Direct Costs’’ means costs directly related to the implementation of this Agreement and all obligations that include any and all of the following: Payroll costs directly related to the performance or management or supervision of any obligation pursuant to the provisions hereof, comprised of compensation and fringe benefits, including vacation, sick leave, holidays, retirement, workers’ compensation insurance, federal and State unemployment taxes and all medical and health insurance benefits; plus The costs of materials, services, direct rental costs and supplies; plus Travel and subsistence costs; plus The reasonable costs of any payments to subcontractors necessary to and in connection with the performance hereunder; plus Any other cost or expense which is directly or normally associated with the task performed; which Direct Costs are substantiated by: 70017373v1 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 (a) A certificate signed by the principal financial officer of the Contractor setting forth the amount of such cost and the reason why such cost is properly chargeable to the City, as the case may be, and stating that such cost is an “m’s length” and competitive price, if there are competitive prices, for the service or materials supplied, and (b) If the City requests, such additional back-up documentation as may be available to reasonably substantiate any such Direct Cost, including invoices from suppliers and subcontractors. “Disposal (or Dispose or other variations thereof)” means the ultimate disposition of Solid Waste at a Landfill in Full Regulatory Compliance. “Disposal Fee” means the per-Ton compensation due to the Contractor for provision of Disposal services as described in Article 5. The Disposal Fee is part of the Contractor’s Compensation under this Agreement. “Diversion Guarantee” means the requirement of the Contractor to use Reasonable Business Efforts to Recover and Divert a specific percentage by weight of Recyclable Materials and Organic Materials from the City Waste Delivered to the Transfer Station as specified in Section 3.30.A. “Divert (or Diversion)” means to prevent Recyclable Materials or Organic Materials hm Disposal at landfill or transformation facilities (including facilities using incineration, pyrolysis, distillation, gasification or biological conversion methods) through source reduction, reuse, Recycling and composting, as provided in Section 41780 of the California Integrated Waste Management Act, as such California Integrated Waste Management Act may be hereafter amended or superseded. Diversion is a broad concept that is to be inclusive of material handling and Processing changes that may occur over the Term including, but not limited to, implementation of innovative (but not necessarily hlly proven) techniques or technology that reduce Disposal risk, decrease costs andor are for other reasons deemed desirable by the City. City requested changes in the Diversion programs described in this Agreement are subject to 3.30.A. below. “Effective Date” means June 1,2002, as specified in Section 2.01. “Environmental Laws” means all federal and State statutes, county, and local ordinances concerning public health, safety and the environment including, by way of example, the Comprehensive Environmental Response, Compensation and Liability Act of 1980,42 USC $9601 et seq.; the Resource Conservation and Recovery Act, 42 USC $6902 et seq.; the Federal Clean Water Act, 33 USC $1251 et seq.; the Toxic Substances Control Act, 15 USC $1601 et seq.; the Occupational Safety and Health Act, 29 USC $651 et seq.; the California Hazardous Waste Control Act, California Health and Safety Code $25100 et seq.; the California Toxic Substances Control Act, California Health and Safety Code $25300 et seq.; the Porter-Cologne Water Quality Control Act, California Water Code $ 13000 et seq.; the Safe Drinking Water and Toxic Enforcement Act, California Health and Safety Code $25249.5 et seq.; the California 7W17373Vl 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Integrated Waste Management Act, California Public Resources Code $40000 et seq., as currently in force or as hereafter amended, and all rules and regulations promulgated thereunder. “Execution Date” means the date when the final signature of the Parties is provided to this Agreement authorizing the Agreement. “Extension (or Extend)” means to cause the end date of the CTS Contractor Operating Period to be beyond the fifth (5th) anniversary of the CTS Operations Date through an amendment of this Agreement as provided for in Section 2.05. “Facilities” means the plants or sites, owned or leased and maintained, operated, and/or used by the Contractor for purposes of performing under this Agreement including the Transfer Station and Designated Landfills. “Force Majeure” events include and are limited to floods, earthquakes, other extraordinary acts of nature, war, terrorism or insurrection, riots, or other similar catastrophic events, not caused or maintained by the Contractor, which event is not reasonably within the ability of the Contractor to intervene in or control, to the extent that such event has a material adverse effect on the ability of the Contractor to perform its obligations under this Agreement. No event, the effects of which could have been prevented by reasonable precautions, including compliance with Applicable Law and Standard Industry Practices shall be a Force Majeure event. No failure of performance by any subcontractor of the Contractor shall be a Force Majeure event unless such failure is itself caused by a Force Majeure event directly affecting the subcontractor. “Franchise Fee” means the fee paid by the Contractor to the City for the right to hold the exclusive fianchise granted by this Agreement as further described in Section 12.04. “Full Regulatory Compliance” means compliance with all applicable Permits for a Transfer Station or a Designated Landfill such that the Contractor shall at all times maintain the ability to comply fully with its obligations under this Agreement. “Governmental Fee Component” is that portion of a Service Fee comprised of Governmental Fees which are applicable on or before the Execution Date as well as new costs incurred during the Term adjusted as provided in Articles 8 and 9. “Governmental Fees” means governmental and regulatory fees, surcharges, and other costs, that are directly assessed against the Contractor by governmental entities and that the Contractor remits to such entities, or any of the foregoing which are included in fees paid by the Contractor to owners or operators of facilities not owned by the Contractor, such as organic processing facilities, which are necessary for provision of the services by the Contractor under this Agreement. The Governmental Fees are limited to City verified costs incurred by the Contractor as a direct or indirect result of mandatory federal, state, regional and local governmental andor regulator fees, surcharges, assessments or other governmental payments related to Facility operation and the services to be provided by the Contractor to City under this Agreement except costs related to judgments, settlements, fines, or liquidated damages. Governmental Fees are costs to which no element of overhead, administrative expense, profit, or other cost is added nor with respect to which any other amount is credited, such that the specific amount of such cost is included in the Contractor’s compensation without modification in the calculations. 70017373v1 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 “Guarantor” means Allied Waste North America, Inc., a Delaware corporation. ‘‘Guaranty Agreement” is the agreement attached as Exhibit D that is executed by the Guarantor guaranteeing the timely and full performance of the Contractor’s obligations. “Hazardous Substance” shall mean any of the following: (a) any substances defined, regulated or listed (directly or by reference) as ”Hazardous Substances,” “hazardous materials,” “Hazardous Wastes,“ “toxic waste,” ”pollutant” or “toxic substances” or similarly identified as hazardous to human health or the environment, in or pursuant to (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980,42 USC $9601 et seq. (CERCLA); (ii) the Hazardous Materials Transportation Act, 49 USC $1802, et seq.; (iii) the Resource Conservation and Recovery Act, 42 USC $6901 et seq.; (iv) the Clean Water Act, 33 USC $1251 et seq.; (v) CalifomiaHealth and Safety Code $525115-25117,25249.8,25281, and 25316; (vi) the Clean Air Act, 42 USC $7901 et seq.; and (vii) California Water Code 513050; @) any amendments, rules or regulations promulgated thereunder to such enumerated statutes or acts currently existing or hereafter enacted; and (c) any other hazardous or toxic substance, material, chemical, waste or pollutant identified as hazardous or toxic or regulated under any other applicable federal, state or local environmental laws currently existing or hereinafter enacted, including, without limitation, friable asbestos, polychlorinated biphenyls, petroleum, natural gas and synthetic fuel products, and by-products. “Hazardous Waste” means all substances defined as Hazardous Waste, acutely Hazardous Waste, or extremely Hazardous Waste by the State of California in Health and Safety Code $251 10.02, $251 15, and $251 17 or in the future amendments to or recodifications of such statutes or identified and listed as Hazardous Waste by the US. Environmental Protection Agency (EPA), pursuant to the Federal Resource Conservation and Recovery Act (42 USC $6901 et seq.), all future amendments thereto, and all rules and regulations promulgated thereunder. “Holidays” are defined as New Year’s Day, Memorial Day, Independence Day (July 4), Labor Day, Thanksgiving Day, and Christmas Day. “Initial PTS Operating Period is the portion of the PTS Operating Period when the Contractor operates and maintains the Transfer Station and the City guarantees Delivery of City Waste and City Source Separated Organic Materials Delivered by, or on behalf of the City, and its Designated Hauler(s) to the Transfer Station as described in Section 2.04.A. “Landfill” means a facility where Solid Waste is placed for Disposal. “LEA is defined in Section 13.10. “Maximum Vehicle Turnaround Time” shall be, on average, fifteen (1 5) minutes measured f?om the time a vehicle Delivering Permitted Materials leaves the scale house unloads Permitted Material in the Transfer Station, and exits the Transfer Station, all in the normal course of business. “Means and Methods (or Means or Methods)” refers to the technologies and/or techniques used in all aspects of Solid Waste management. This term is used in relation to Section 16.16 in 70017373v1 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 recognition of the fact that technologies and techniques may well change over the Term. This change in Means and Methods may be the result of the availability of new technologies and/or techniques, or the availability to the Parties of new technologies and/or techniques that were not available to them as of the Execution Date. “Means and Methods” encompasses the full possible or potential range of changes in management practices for Transfer, Transport, and Disposal, material Recovery and Diversion, including the use of innovative but not necessarily filly proven technology and/or techniques. Changes in Means and Methods may include, but are not limited to, technologies and/or techniques that reduce Transfer, Transport, or Disposal volume, risk, or costs and/or are for other reasons deemed desirable by the City. “Operations and Maintenance Manual” is a document detailing all procedures associated with operations and maintenance of the Transfer Station as defined in Section 3.13. “Organic Materials” means a subset of Recyclable Materials consisting of grass cuttings, weeds, leaves, prunings, branches, dead plants, brush, tree trimmings, dead trees (not more than six [6] inches in diameter), and similar organic materials generated at residential commercial, industrial and institutional properties. Materials not normally produced from gardens or landscapes, such as, but not limited to, palm fronds, brick, rock, gravel, large quantities of dirt, concrete, sod, non-organic wastes and oil shall be excluded from Organic Materials. Diseased plants and trees are also excluded from Organic Materials. “Ownership (or Own or other variations thereof)” means ownership as defined in the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date here, provided that ten (10) percent shall be substituted for fifty (50) percent in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and Section 318(a)(5)(C) shall be disregarded. For purposes of determining ownership under this paragraph and constructive or indirect ownership under Section 318(a), ownership interest of less than ten (10) percent shall be disregarded and percentage interests shall be determined on the basis of the percentage of voting interest of value which the ownership interest represents, whichever is greater. “Palomar Transfer Station (or PTS)” means the existing Transfer Station at the McClellan- Palomar Airport in the City, which is situated on land owned by the County of San Diego, Airports Division, and leased by the City. “Party” and “Parties” refers to the City and the Contractor, individually or together. “Permits (or Permitting or other variations thereof)” means all federal, State and local, statutory or regulatory approvals, or other measures or mechanisms necessary for the Contractor to be in Full Regulatory Compliance in the performance of all the Contractor’s obligations, as renewed or amended from time to time. “Permitted Materials” means Solid Wastes or other materials that the Facilities may receive under their Permits and Applicable Law, including nonhazardous Solid Wastes, Recyclable Materials, construction and demolition waste, Organic Materials, and other materials that may be Accepted and safely handled, Recycled, or Disposed. 7CQ17373VI 10 1 2 3 9 10 11 12 13 14 15’ 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 31 “Person” means any individual, firm, association, organization, partnership, corporation, business trust, joint venture, the United States, the State of California, the County, towns, cities, and special purpose districts, excluding the City. “Post-Closure” pertains to all activities and related costs during the Post-Closure period of the Designated Landfills or portions of the Designated Landfills in accordance with Applicable Law and Permits. “Premises” means any land or building in the City where solid Waste is generated or accumulated. “Processing” means to prepare, treat, consolidate, or convert materials through some special method such as baling, crushing, shredding, chipping, grinding, extracting, mechanical or hand classification. “PTS (or Palomar Transfer Station)” means the existing Transfer Station at the McClellan- Palomar Airport in the City, which is situated on land owned by the County of San Diego, Airports Division, and leased to the City. “PTS Operating Period means the period the Contractor operates the Palomar Transfer Station as described in Section 2.04. The PTS Operating Period includes the Initial PTS Operating Period, Subsequent PTS Operating Period, and City Use Period, as applicable. “PTS Organic Fee” is the per-Ton compensation due to the Contractor from the Designated Hauler(s) for Acceptance of City Source Separated Organic Materials during the Initial PTS Operating Period. The PTS Organic Fee is comprised in total of the PTS Organic Transfer Component, PTS Organic Transport Component, PTS Organic Processing Component, and Governmental Fee Component. “PTS Organic Processing Fee” means the portion of a PTS Organic Fee that is the per-Ton compensation due to the Contractor for Processing costs charged at the Designated Organics Processing Facility. “PTS Organic Transfer Fee” means the portion of a PTS Organic Fee that is the per-Ton compensation due to the Contractor for providing Transfer Station services for City Organic Materials. “PTS Organic Transport Fee” means the portion of the PTS Organic Fee that is the per-Ton compensation due to the Contractor for providing Transport services for City Organic Materials as described in Article 4 during the PTS Operating Period. “PTS Other Fees” means the Service Fees that the Contractor collects at the Palomar Transfer Station from Transfer Station Users other than the PTS Solid Waste Fee, PTS Organic Fee and City Use Fee. “PTS Service Fees” means all Service Fees collected by the Contractor from Palomar Transfer Station Users including PTS Other Fees, PTS Solid Waste Fee, PTS Organic Fee, and City Use Fee. 7W17373V1 11 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 “PTS Solid Waste Fee” is the per-Ton compensation due to the Contractor fiom the Designated Hauler(s) for Acceptance of City Waste during the Initial PTS Operating Period. The PTS Solid Waste Fee is comprised in total of the Base Component and Governmental Fee Component. “PTS Sublease” means the sublease agreement between the City and the Contractor for the sublease by the Contractor of the Palomar Transfer Station in the form attached in Exhibit C. “Reasonable Business Efforts” means those efforts a reasonably prudent business Person in the solid waste industry in Southern California would expend under the same or similar circumstances in the exercise of such Person’s business judgment, intending in good faith to take steps calculated to satisfy the obligation that such Person has undertaken to satisfy in compliance with Applicable Laws, applicable Permits and safe operating procedures. “Recovered Materials” means Recyclable Materials or Organic Materials Recovered at the Transfer Station fiom Permitted Materials. “Recovery (or Recover, Recovered or other variations thereof)” means the picking, pulling, sorting, separating, classifymg and recovery of Recyclable Materials or Organic Materials fkom Permitted Materials whether by manual or mechanical means,.at the Transfer Station, after Acceptance of Permitted Materials and before marketing of Recovered Materials. “Recyclable Materials” means materials having a potential for reuse or reprocessing or other materials declared as Recyclable Materials by the City. “Recycling (or Recycle or other variations thereof)” means the process of separating for collection, collecting, treating andor reconstituting Recyclable Materials, which would otherwise be discarded, and returning them to the economy in the form of raw materials for new, reused, or reconstituted products or reuse. The collection, Transportation or Disposal of Solid Waste, not intended for or capable of reuse, is not Recycling. “Rolling Stock” means the mobile equipment used at the Facilities and on the highway to meet the Contractor’s obligations. “Section” refers to the sections of this Agreement unless otherwise specified. “Self Haulers (or Self Haul or other variations thereof)” means Persons who Deliver Permitted Materials, on their own behalf, and not as a commercial enterprise or on behalf of a municipality. “Service Fees” means all charges and fees collected from Transfer Station Users for Delivery of Permitted Materials to the Transfer Station including the PTS Service Fees, CTS Service Fees, Contractor Use Fee, and Contractor Capacity Fee. “Significant (cost or event)” means that the cumulative annual financial impact to the City or the Contractor exceeds fifty thousand dollars ($50,000). Such amount shall be adjusted to reflect CPI changes over the Term in the same manner that liquidated damages are adjusted in accordance with Section 8.09. “Site” means the parcel(s) of land on which the Transfer Station is situated. 70017373Vl 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 “Small Self Haul (or Small Self Haulers)” means Self Haulers arriving in passenger cars, pick- up trucks with beds less than or equal to eight (8) feet in length, and vehicles hauling trailers with beds less than or equal to eight (8) feet in length. “Solid Waste (or Waste)” means and includes all putrescible and nonputrescible solid, semisolid, and liquid wastes, including garbage, trash, refuse, rubbish, ashes, industrial wastes, demolition and construction wastes, discarded home and industrial appliances, manure, vegetable or animal solid and semisolid wastes, and other discarded solid and semisolid wastes, as defined in California Public Resources Code $40191, as that section may be amended from time to time. For the purposes of this Agreement, “Solid Waste” does not include abandoned vehicles and parts thereof, Hazardous Waste or low-level radioactive waste, medical waste, Recyclable Materials, or Organic Materials. “Source Separation (or Source Separate or other variations thereof)” means the segregation into separate containers by the generator of individual components of material which otherwise would become Solid Waste such as Recyclable Materials or Organic Materials for the sole purpose of reuse, Recycling, or composting. “Standard Industry Practice@“ means reasonable diligence and prudence on part of the Contractor in employing, at a minimum, the then-current development, operations, management, and business practices and standards of the Southern California solid waste management industry in meeting the Contractor’s obligations hereunder for Transfer Station and Transport services, and means reasonable diligence and prudence on part of the Contractor in employing, at a minimum, the then-current development, operations, management, and business practices and Solid Waste Association of North America Manager of Landfill Operations standards, or standards of successor organization, in meeting the Contractor’s obligations hereunder for Disposal services. “State” means the State of California. “Subsequent PTS Operating Period” is the portion of the PTS Operating Period when the Contractor operates and maintains the Transfer Station and the City is not obligated to deliver any Solid Waste or Source Separated Organic Materials to the Palomar Transfer Station but has the right to Deliver, or cause to be Delivered some or all City Waste or Source Separated Organic Materials collected by the City or its Designated Hauler(s) to the Transfer Station for the purposes of Transfer as described in Section 2.04.B. “Term” of this Agreement means the twenty-five (25) year period that this Agreement shall be effective as described in Article 2. “Ton (or Tonnage or other variations thereof)” means a unit of measure for weight equivalent to two thousand (2,000) standard pounds (where each pound contains sixteen [ 161 ounces). “Transfer (or Transferring or other variations thereof)” means transferring Solid Waste, Recyclable Materials, or Organic Materials at the Transfer Station lkom collection vehicles into Transport containers or vehicles for the purposes of Transporting the material to a Disposal Facility, Designated Organics Processing Facility, other Processing facility, or end-user. 70017373Vl 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Transfer does not include Transport, Processing or Disposal, as each such term is further defined in this Agreement. “Transfer Capacity” means the quantity of materials that the City Transfer Station can Accept for the purpose of Transfening such material as specified in the CTS Permits. “Transfer Capacity Guarantee” means the quantity of Transfer Capacity the City guarantees to make available to the Contractor at the City Transfer Station during the CTS Marketing Period in accordance with Section 7.01. “Transfer Station” means a facility used primarily for the purpose of Transferring Solid Waste, Recyclable Materials, and Organic Materials from collection vehicles to Transport containers or vehicles to more eficiently Transport said material to a Disposal facility or Processing facility, and a facility at which Recyclable Materials and Organic Materials may be recovered from the Solid Waste and Diverted from Landfill Disposal. For the purposes of this Agreement, Palomar Transfer Station shall be the designated Transfer Station during the PTS Operating Period and the City’Transfer Station shall be the designated Transfer Station during the CTS Contractor Operating Period and CTS Marketing Period. “Transfer Station Lease Payment” means the amount the Contractor shall pay the City as specified in Section 12.05 “Transfer Station Throughput Guarantee” means the requirement of the Contractor to Accept, loadout for Transfer Solid Waste and Organic Materials Delivered to the Transfer Station as specified in Section 3.07.A. The requirements of the Transfer Station Throughput Guarantee do not in any way obligate or guarantee the City to Deliver or cause to be Delivered a minimum amount of Solid Waste or Permitted Materials to the Transfer Station during the Term, but do obligate the City to Deliver or cause to be Delivered all City waste collected by Designated Hauler(s) to the Contractor. “Transfer Station Users” means the Persons Delivering Permitted Materials to the Transfer Station including, but not limited to, the City, Designated Hauler(s), and Self Haulers. “Transport” means the transportation of Solid Waste to a Disposal facility or Source Separated Organic Materials and Recyclable Materials to Processing facilities or end-users. “Uncontrollable Circumstance” means any act, event, or condition, which could not reasonably have been anticipated and prevented, outside either Party’s control and not the result of willful or negligent action or inaction on the part of such Party, whether affecting the Facilities or either Party, which materially and adversely Affects the ability of either Party to perform any of its obligations hereunder, including: (1) The failure of any appropriate federal, State, City or local public agency or private utility having operational jurisdiction in the area in which the Facilities are located, to provide and maintain utilities, services, sewer or power transmission lines to the Facilities which are required for Facility operation or capital improvements; 70017373v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 (2) A Change in Law other than a Change in Law excluded under subsection (a) of this definition; (3) A Force Majeure event that temporarily or permanently interrupts Facility operations or capital improvements; but excluding: (a) Adverse changes in the financialcondition of either Party or any change in law with respect to any taxes based on or measured by net income, or any unincorporated business, payroll, franchise or employment taxes; The consequences of grossly negligent errors in Facility operation or capital improvements on the part of the Contractor, its employees, agents, subcontractor or Affiliates, including grossly negligent errors in plans and specifications for capital improvements that should reasonably have been identified by the Contractor, or the Operations and Maintenance Manual or failure to comply therewith; The failure of the Contractor to secure Permits, patents, technical licenses, trademarks, and the like necessary for Facility operations or capital improvements; Labor actions of the Contractor’s employees or subcontractors, including, but not limited to, labor dispute or labor unrest such as a strike, work stoppage or slowdown, sick-out, picketing, or other concerted job action. “Unpermitted Material@)” means wastes or other materials that the Facilities may not receive under their Permits, including: Unpermitted Landfill wastes, including all materials that the Designated Landfills are not permitted to Accept excluding White Goods with chlorinated fluorocarbons and capacitors removed, and other materials that the Contractor Accepts and safely handles, Recycles, or Disposes; Asbestos, including friable materials that can be crumbled with pressure and are therefore likely to emit fibers, being a naturally occurring family of carcinogenic fibrous mineral substances, which may be a Hazardous Waste if it contains more than one percent (1%) asbestos; Ash residue from the incineration of solid wastes, including Solid Waste; infectious waste described in Item 8 below, wood waste, sludge, and agricultural wastes; Auto shredder “fluff consisting of upholstery, paint, plastics, and other non- metallic substances, which remain after the shredding of automobiles; Dead animals larger than one hundred (1 00) pounds; 70017373V1 15 1 (6) 2 (7) 3 4 (8) 5 6 7 8 9 10 11 (9) 12 13 14 15 16 (10) 17 18 19 20 (11) 21 22 Hazardous Substances; Industrial solid or semi-solid wastes that pose a danger to the operation of the Facilities, including cement kiln dust, or process residues; Infectious wastes that have disease transmission potential and are classified as Hazardous Wastes by the State Department of Health Services, including pathological and surgical wastes, medical clinic wastes, wastes from biological laboratories, syringes, needles, blades, tubing, bottles, drugs, patient care items such as linen or personal or food service items from contaminated areas, chemicals, personal hygiene wastes, and carcasses used for medical purposes or with hown infectious diseases; Liquid wastes that are not spadeable, usually containing less than fifty percent (50%) solids, including cannery and food processing wastes, landfill leachate and gas condensate, boiler blowdown water, grease trap pumpings, oil and geothermal field wastes, septic tank pumpings, rendering plant byproducts, sewage sludge, and those liquid wastes that may be Hazardous Wastes; Radioactive wastes under Chapter 7.6 (commencing with Section 25800) of Division 20 of the State Health and Safety Code, and any waste that contains a radioactive material, the storage or disposal of which is subject to any other state or federal regulation andor; Sewage sludge comprised of human (not industrial) residue, excluding grit or screenings, removed from a wastewater treatment facility or septic tank, whether in a dry or semi-dry form. 23 24 25 26 27 28 29 30 31 32 33 34 The Parties shall during the Term promptly amend this definition of “Unpermitted Material” to reflect any applicable changes in Permits or Applicable Law. “Waste” means Solid Waste. “Waste Processing Fee” means a fee collected by the Contractor on each Ton of Permitted Material Accepted at the Palomar Transfer Station from any source as further described in Section 12.03. “White Goods” means used appliances including, but not limited to, refrigerators, freezers, dishwashers, washers and dryers, and hot water heaters. “WMI Sublease” is defined in the Recitals to this Agreement. “Working Days (or Work Day or other variations thereof)” means days during which City offices are open to do business with the public, but not in any event Saturdays, Sundays or Holidays. 7W17373VI 16 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 ARTICLE 2 TERM AND OPERATING PERIODS OF AGREEMENT 2.01 Effective Date. The Effective Date of this Agreement shall be June 1,2002 (“Effective Date”). 2.02 Conditions to Effectiveness of Agreement. The effectiveness of this Agreement and the obligations of each of the City and the Contractor to perform their respective undertakings provided for in this Agreement are subject to the satisfaction of each and all of the conditions set out below, each of which may be waived in whole or in part by the Party for whose benefit the condition is being satisfied. A. Accuracy of Representations. The representations and warranties made by each of the Contractor and the City in this Agreement shall be true and correct in all material respects on and as of the Effective Date of the Agreement as if made on such date, as certified in writing by an authorized oficer or representative of each of the Contractor and the City, in form and substance satisfactory to the other Party. .B. Absence of Litigation. There shall be no litigation pending or threatened in any court challenging the award of the Agreement to the Contractor, the execution of this Agreement or the Effective Date of this Agreement or seeking to restrain or enjoin its performance. Each of the parties shall furnish to the other an estoppel certificate certifying as to the foregoing absence of litigation. C. Furnishing of Insurance and Bonds. The Contractor shall have furnished evidence of the insurance and bonds required by Article 14, or, at the Contractor’s election in lieu of the bond required under Section 14.03 below, shall have furnished the UCC financing statement required under Section 14.04 below, which financing statement shall be substantially in the form of the attached Schedule 14.04. D. Effectiveness of City Council Action. A Resolution of the City Council approving this Agreement shall have become effective pursuant to California law on or before the Effective Date. E. Assignment of the PTS Lease. The Contractor shall have received all necessary approvals to assign, and shall have assigned, and all required Parties shall have consented to the assignment of, the County Lease to the City, including the consent thereto by the County, as of the Effective Date. The WMI Sublease shall not have been amended from the form thereof attached hereto as Exhibit B without the prior written consent of the City except an amendment to confirm its continued effectiveness following the assignment of the County Lease to the City as contemplated hereunder. As long as the Contractor is operating the Palomar Transfer Station, neither party to this Agreement shall enter into any further sublease of the Palomar Transfer Station without the prior written consent of the other Party. F. Operations and Maintenance Manual. The Contractor shall have submitted its Operations and Maintenance Manual in accordance with the provisions of Section 3.13. 70017373v1 17 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 2.03 Term. The Term of this Agreement shall be twenty-five (25) years commencing on the Effective Date and ending midnight, May 3 1, 2027, unless terminated earlier in accordance with Section 15.03. The Term shall include the PTS Operating Period described in Section 2.04 and may include the CTS Contractor Operating Period and CTS Marketing Period described in Sections 2.05 and 2.06, respectively. 2.04 PTS Operating Period. The PTS Operating Period is the portion of the Term when the Contractor shall be responsible for operating and maintaining the Palomar Transfer Station in a manner consistent with the terms and conditions of this Agreement. The PTS Operating Period shall commence on the Effective Date and end on the final day of the Term, with the exception that if the City develops the City Transfer Station, the PTS Operating Period shall expire at midnight the day prior to the CTS Operations Date. All the Contractor's rights to operate the Palomar Transfer Station or access the Palomar Transfer Station Site shall cease at the end of the PTS Operating Period and the Palomar Transfer Station Site shall thereafter be subject to the use restriction described in Section 16.27 below. A. Initial PTS Operating Period. The Initial PTS Operating Period is the portion of the PTS Operating Period when the Contractor operates and maintains the Transfer Station and the City guarantees Delivery of City Waste and City Source Separated organic Materials Delivered by or on behalf of the City and its Designated Hauler(s) to the Transfer Station. The Initial PTS Operating Period shall commence on the Effective Date and shall continue for ten (10) years from the date of commencement unless the City Transfer Station is developed, in which case the Initial PTS Operating Period shall end at midnight the day prior to the CTS Operations Date. In the event the City has not developed the City Transfer Station or the CTS Operations Date has not occurred on or before the tenth (IOth) anniversary of the Effective Date, the City shall have the right to extend the Initial PTS Operating Period in periods of three (3) years each; provided, however, the parties shall have re-calculated and re-established the Contractor's Compensation , as described in Section 8.01.A below, for each such extension of the Initial PTS Operating Period past the tenth (10th) anniversary of the Effective Date. In no case shall the Initial PTS Operating Period extend beyond the expiration date of the Term of this Agreement. In the event the CTS Operations Date has not occurred on or before the ninth (9th) anniversary of the Effective Date, but the City contemplates in good faith that it will occur not later than the twelfth (12") anniversary of the Effective Date in a period of less than two (2) years, the City shall have the right, by written notice delivered to the Contractor not less than sixty (60) days prior to the ninth (9Ih) anniversary of the Effective Date, to extend the Initial PTS Operating Period for up to two (2) years on all the same terms and conditions under this Agreement as are then effective. In the event the City delivers said notice regarding the commencement of the CTS Operations Date and the CTS Operations Date does not occur at any time prior to or on the twelfth (12") anniversary of the Effective Date due to an abandonment by the City of development of the CTS, or a failure by the City to meet the milestone events described on Schedule 2.04(A) hereto with respect to development of the CTS, the parties will effect the re-calculation of the Contractor's Compensation as contemplated under Section 8.01.A below to take immediate effect for the duration of the extension; provided, however, in all events, the Contractor's Compensation shall be re-calculated not later than the twelfth (12") anniversary of the Effective Date to the extent the Initial PTS Operating Period shall extend past such date. 7m17373v1 18 1 2 3 4 5 6 7 S 9 10 11 12 13 14 15 16 17 1s 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 B. Subsequent PTS Operating Period. The Subsequent PTS Operating Period is the portion of the PTS Operating Period when the Contractor operates and maintains the Palomar Transfer Station and the City is not obligated to deliver any Solid Waste or Source Separated Organic Materials to the Palomar Transfer Station but has the right to Deliver, or cause to be Delivered some or all City Waste or Source Separated Organic Materials collected by the City or its Designated Hauler(s) to the Transfer Station for the purposes of Transfer under provisions of this Agreement in accordance with Article 6. The Subsequent PTS Operating Period shall commence on the day following the end of the initial PTS Operating Period and shall end on the last day of the Term or at midnight the day prior to the CTS Operations Date. C. City Use Period. The City Use Period is the portion of the Subsequent PTS Operating Period when the Contractor operates and maintains the Palomar Transfer Station and the City exercises its right to use the Transfer Station by Delivering or arranging for Delivery of Solid Waste or Source Separated Organic Materials to the Palomar Transfer Station. The terms and conditions associated with the City Use Period are described in Article 6. 2.05 CTS Contractor Operating Period. The CTS Contractor Operating Period is the portion of the Term when the Contractor operates and maintains the City Transfer Station in a manner consistent with the terms and conditions of this Agreement. A. General. The CTS Contractor Operating Period shall occur only in the event the City develops the City Transfer Station, and in such case the CTS Contractor Operating Period shall begin on the CTS Operations Date. The CTS Operations Date may occur on any date during the Term provided that such date shall occur no later than the twentieth (20th) anniversary of the Effective Date. The Contractor shall operate and maintain the City Transfer Station for a period of five (5) years commencing on the CTS Operations Date, unless the CTS Operations Date occurs prior to fifth (5") anniversary of the Effective Date. In such case the CTS Contractor Operating Period shall commence on the CTS Operations Date and end on the tenth (10") anniversary of the Effective Date. Thecity shall direct the Delivery of City Waste and City Source Separated Organic Materials Delivered by, or on behalf of the City and its Designated Hauler(s) to the City Transfer Station during the CTS Contractor Operating Period. The City shall notify the Contractor of its intent to commence operations of the City Transfer Station no later than one (1) year prior to the CTS Operations Date (e.g., if the CTS Operations Date is April 1,2004, the City shall notify the Contractor of such date and its plans to commence CTS operations in accordance with this provision no later than March 3 1,2003). B. Extension of CTS Contractor Operating Period. The City may, in its sole discretion, Extend the CTS Contractor Operating Period beyond the fifth (5") anniversary of the CTS Operations Date for up to five (5) periods of three (3) years each for a CTS Contractor Operating Period that may total but not exceed twenty (20) years provided that in no case shall the end of the CTS Contractor Operating Period Extend beyond the expiration date of the Term of this Agreement. The City shall notify the Contractor of its intent to exercise this Extension provision not later than six (6) months prior to the end of the CTS Contractor Operating Period or then- current Extension. The City's guarantee to Deliver City Waste and City Source Separated Organic Materials Delivered by, or on behalf of the City and its Designated Hauler(s) to the City Transfer Station shall remain in effect through any Extensions. The Contractor's Compensation shall be mutually agreed to by the Parties for each such extension. ~~ 70017373v1 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 The CTS Contractor Operating Period may be Extended, conditioned on the City’s confirmation that the preconditions below are satisfied, each of which may be waived in whole or in part by the City Council. 1. Since the Execution Date, there shall not have occurred any material change, financial or otherwise, that would adversely effect the ability of the Guarantor to perform its obligations under the Guaranty Agreement or the ability of the Contractor to perform its obligations hereunder or its obligations under any other agreement, contract or instrument entered into or to be entered into by the Contractor in connection with Facilities operation, the Contractor’s obligations hereunder, the services hereunder and the transactions contemplated hereby. 2. The representations and warranties made by the Contractor in Article 18 shall be true and correct in all material respects on and as of the date of the commencement of the Extension as if made on such date, as certified in writing by an authorized officer of the Contractor, in form and substance satisfactory to the City. 3. The Contractor shall not have been assessed in any single year by City liquidated damages in excess of one-half percent (0.5%) of the annual Contractor’s Compensation as established in accordance with Articles 8,9, and 10. 4. The Contractor shall not have been delinquent by more than thirty (30) calendar days in any payment to the City. 5. The Contractor shall not have had officials, with supervisory, management, or administrative responsibility for the performance of services under this Agreement, found guilty of a felony or liable for a civil penalty in excess of twenty-five thousand dollars ($25,000) related to their duties under this Agreement or any agreement with a municipal agency in the United States. C. Contractor’s Right of First Offer. In the event the City does not Extend the CTS Contractor Operating Period under the provisions of subsection B above and the City intends to negotiate with or solicit proposals from third parties to operate and maintain the City Transfer Station, the City shall first provide the Contractor with an opportunity to present an offer to continue operations and maintenance of the City Transfer Station. The Contractor’s offer for continued operations and maintenance of the City Transfer Station shall be provided within thirty (30) calendar days of the City’s request. The City shall review the Contractor’s offer and the Parties shall negotiate in good faith to reach an agreement for the Contractor’s continued operations and maintenance of the City Transfer Station. In the event the Parties do not reach an agreement within sixty (60) calendar days of the City’s receipt of the Contractor’s offer, the City shall have the right to enter into negotiations with other parties or to solicit proposals for the operations and maintenance of the City Transfer Station at the expiration of the CTS Contractor Operating Period. In the event the City solicits proposals fiom other parties for CTS operations and maintenance, the Contractor shall have the opportunity to participate in the proposal process and submit a proposal. 2.06 CTS Marketing Period. The CTS Marketing Period is the portion of the Term when the Contractor shall have the right to market Transfer Station services to other parties and to Deliver 70017373V1 20 1 to the City Transfer all Solid Waste in excess of the amount of City Solid Waste delivered up to, 2 but not to exceed the Permitted capacity of the CTS. The CTS Marketing Period shall 3 commence on the CTS Operations Date and shall terminate on the expiration date of the Term. 4 The terms and conditions associated with the CTS Marketing Period are described in Article 7. 5 6 ARTICLE 3 TRANSFER STATION SERVICES 7 3.01 General. The Contractor shall provide, in accordance with Standard Industry Practices, 8 Transfer Station Services described in this Section during the Initial PTS Operating Period and 9 CTS Contractor Operating Period. The Contractor’s obligations with regard to Transfer Station 10 services during the Initial PTS Operating Period and CTS Contractor Operating Period shall be 11 the same unless otherwise noted in this Article or elsewhere in this Agreement or unless required 12 by a Permit including any Permit issued by the City associated with its land use regulatory 13 responsibilities. The Contractor shall lease the Transfer Station fkom the City. 14 The Contractor shall be responsible for managing the WMI Sublease. The Contractor shall 15 retain all payments from Waste Management, Inc., under the WMI Sublease. 16 3.02 Palomar Transfer Station Capital Improvements. 17 A. Contractor Responsibilities. The Contractor shall be responsible for, or shall arrange 18 for, the execution of the capital improvement projects listed in Exhibit E. The Contractor’s 19 responsibilities related to the capital improvements include, but are not limited to, design, 20 engineering, permitting, financing, construction, and any other services as may be required to 21 accomplish the capital improvements. All costs associated with the capital improvements shall 22 be the Contractor’s responsibility. Capital improvements other than those listed in Exhibit E 23 shall be handled as a modification of the scope of service pursuant to Section 16.15. 24 25 26 27 28 29 30 31 32 33 34 35 36 37 B. Schedule for Completion. The City requires certain capital improvement projects to the PTS be completed to insure that the Transfer Station can adequately serve the City. Exhibit E includes a completion date for each capital improvement project. The Contractor shall use its good faith best efforts to complete the capital improvement projects in accordance with the completion date(s) provided in Exhibit E. To secure timely completion of such capital improvements, at such time as all permits and approvals required for the construction of the capital improvement projects have been obtained by the Contractor, the Contractor shall cause to be issued in favor of the City a completion bond in the estimated amount of the full construction cost of the capital improvement projects to be completed by the Contractor. In the event the Contractor does not complete the capital improvement projects within twenty-four (24) months following the Contractor’s obtaining of all permits and approvals for such construction, as the same may be extended due to the occurrence of any Uncontrollable Circumstance, the City shall be entitled to draw down on said completion bond and complete the capital improvement projects with the proceeds thereof. 38 C. Monthly Progress Report. Following the Effective Date and until all capital 39 improvement projects are completed, the Contractor shall provide a written progress report as 40 requested by the City describing commenced, on-going, and completed capital improvement 70017373V1 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 projects since any previous report; and compare such progress with the completion dates provided in Exhibit E. Upon the City’s request, the Contractor shall meet with the City to discuss the status of the capital improvement projects. D. Professional Liability Insurance. If any professional services (i.e., services for which applicable State licensing laws would apply), are provided by employees of the Contractor in connection with the capital improvement projects described in Section 3.02.A above, the Contractor shall maintain during said project, and for a period of ten (10) years thereafter, professional liability insurance in an amount equal to not less than five million dollars ($5,000,000) per occurrence and five million dollars ($5,000,000) annual aggregate. If such professional services are to be provided by a design professional under contract to the Contractor, then the Contractor shall require the same insurance from the design professional to the extent available at commercially reasonable rates. 3.03 City Transfer Station Development. A. City Responsibilities. In the event the City decides, at its sole discretion, to develop the City Transfer Station, the City shall be responsible for siting, Permitting, land acquisition, design, engineering, financing, and construction of a City Transfer Station. B. Contractor Responsibilities. In the event the City decides to develop the City Transfer Station, then the Contractor shall be responsible for the following: 1. Design and Construction Input. The Contractor shall review the City Transfer Station plans and specifications in the draft, final, and “as built” stages to verify that the facility design allows the Contractor to safely and efficiently fulfill its obligations under this Agreement in accordance with Applicable Law and Permit requirements. AAer review of the final plans and specifications, the Contractor shall certify in writing that if the City Transfer Station is built in accordance with such plans and specifications that the Contractor can operate the City Transfer Station in such a way as to meet its obligations contained in this Agreement. The professional liability insurance requirements described under Section 3.01.D above shall apply to any professional services provided by the Contractor in connection with this Section. 2. Permitting Assistance. The Contractor’s responsibilities are described in Section 3.09.B. 3. Costs. The actual necessary and reasonable Direct Costs incurred by the Contractor for the Contractor’s responsibilities listed in this Section shall be borne by the Contractor. 4. Contractor Cooperation. The Contractor shall participate in any meetings held with regard to the City Transfer Station development at the request of the City and shall use Reasonable Business Efforts to cooperate with the City and its agents during the siting, Permitting, land acquisition, design, engineering, financing, and construction of the City Transfer Station. lW17313Vl 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 3.04 Operations and Maintenance Standards. A. General. Beginning on the Effective Date, the Contractor warrants to comply with the Transfer Station Throughput Guarantee in Section 3.07.A and, on a Reasonable Business Efforts basis taking into consideration compliance with prudent safety requirements, the Diversion Guarantee in Section 3.30.A during the Initial PTS Operating Period and CTS Contractor Operating Period and to perform the Contractor’s obligations with respect to Transfer Station services hereunder in accordance with sound management and operations practice, its Operations and Maintenance Manual, regulatory and Permit requirements, Applicable Law, the provisions hereof, and covenants, conditions and restrictions pertaining to the Transfer Station. B. Compliance with Palomar Transfer Station Lease. The Contractor shall comply with requirements of the County Lease including requirements listed in Exhibits B, C, and D of the County Lease, which include operations and performance standards and Federal Aviation Administration (FAA) requirements. 3.05 General Description of Operating Requirements. The Contractor shall be responsible for all operations, maintenance, monitoring, and reporting requirements associated with the Transfer Station operations, including, but not limited to, the following: A. Operating scale house and scale system; B. Directing on-Site traffic to appropriate unloading areas and providing a safe working environment for Transfer Station Users, visitors and employees; C. Managing Permitted Materials Accepted at the Transfer Station; D. Recovering Recyclable Materials and Organic Materials from City Waste; E. Transferring Solid Waste,’ Recyclable Materials and Organic Materials into large-capacity Transport trailers or containers; F. Processing, marketing, and Transferring Recyclable Materials and Organic Materials; G. Providing, operating, and maintaining all equipment, Rolling Stock and supplies necessary for managing and Transferring Permitted Materials and for performing all other aspects of Transfer Station operations; H. Properly managing dust, odors, litter, vectors, and other potential nuisances; I. Complying with all Permits and Applicable Law. J. Segregating City Waste and Organic Materials Delivered by the City and Designated Haulers from materials Delivered by Other Transfer Station Users, and separately Transfemng such City Waste and City Organic Materials in the event a portion of the Solid Waste Transferred from the Transfer Station is Disposed at a non-Designated Landfill. 70017373Vl 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 3.06 Receipt of Permitted Materials. Commencing on the Effective Date and continuing through the Initial PTS Operating Period and CTS Contractor Operating Period, the Contractor shall receive and Accept at the Transfer Station: A. All Acceptable City Waste and City Source Separated Organic Materials Delivered by, or on behalf of the City and its Designated Hauler(s). B. All Acceptable City Waste Delivered by Self Haulers. C. All Recyclable Materials Delivered by Self Haulers to the BuybacklDrbp-Off Center. D. All Recyclable Materials Delivered by, or on behalf of, the City and its Designated Hauler(s) for the purpose of consolidating such material and Transfening it to a Processing facility during the CTS Contractor Operating Period. 3.07 Transfer Station Throughput Guarantee and Waste Acceptance Priority. A. Transfer Station Throughput Guarantee. Subject to applicable Permit restriction which ffom time to time may be in effect: 1. Initial PTS Operating Period and CTS Contractor Operating Period. During the Initial PTS Operating Period and CTS Contractor Operating Period, the Contractor shall guarantee its ability to Accept, Transfer, Transport, and Dispose of all Solid Waste Delivered by the City or its Designated Hauler(s) and all Solid Waste generated in the City and Delivered to the Transfer Station by Self Haulers, and the Contractor shall guarantee its ability to Accept, Transfer and Transport all City Source Separated Organic Material Delivered to the Transfer Station by the City or its Designated Hauler(s). 2. City Use Period during the Subsequent PTS Operating Period. In the event the City exercises its right to Deliver, or cause to be Delivered, City Waste or Source Separated Organic Materials to the Palomar Transfer Station during the City Use Period, the Contractor shall guarantee its ability to Accept and Transfer all Solid Waste or Source Separated Organic Materials Delivered by the City or its Designated Hauler(s) during the City Use Period in the amounts estimated by the City annually in good faith as verified and adjusted based on actual Delivered amounts on a half yearly basis, as more fully provided below. The City shall annually provide a non-binding estimate of the amount of Solid Waste to be Delivered during the next twelve (12) calendar month period. The City shall submit the estimate to the Contractor ninety (90) days prior to the commencement of the City Use Period and in subsequent years prior to the anniversary thereof. The City shall use its best efforts to apportion the annual estimate on a monthly basis. Six (6) months after the annual estimate has become effective, the Parties shall adjust the estimate for the next six (6) months based on the actual amounts Delivered during the immediately preceding 6 month period. 70017373v1 24 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 B. Waste Acceptance Priority. Acceptance of Permitted Materials Delivered by the City or its Designated Hauler(s) shall have priority at the Transfer Station as follows: 1. Commitment of All Solid Wastes during City Use Period. During the City Use Period, the City or its Designated Hauler(s) shall have priority use of Permitted capacity at the Palomar Transfer Station provided the City commits all City Solid Waste to the Palomar Transfer Station. 2. Partial Commitment of Solid Waste during City Use Period. In the event the City commits only a portion of its Solid Waste to the Palomar Transfer Station, the Contractor is only required to provide priority use for the amount committed. C. Contractor Agreements with Transfer Station Users. The Contractor has the right to enter into agreements with Transfer Station Users other than the City and its Designated Hauler(s) for Transfer, Transport and Disposal services for Permitted Materials provided that the term of any such agreement(.?.) does not extend beyond the end of the Term of this Agreement and provided that any such agreement includes provisions related to the potential shift of operations from the Palomar Transfer Station to the City Transfer Station at the commencement of the CTS Contractor Operating Period. Upon City request, the Contractor shall provide the City with a copy of any and all agreements with other Transfer Station Users. D. No Representation by City. The City makes no representation, and is under no obligation, regarding the quantity or composition of the Solid Waste, Recyclable Materials, or Organic Materials Delivered to the Transfer Station by the City, Designated Haulers, Self Haulers, or other Transfer Station Users. 3.08 Operating Days and Hours. The Contractor shall have the right to use and operate the Transfer Station every day of the year during the Initial PTS Operating Period and CTS Contractor Operating Period of the Agreement subject to applicable Permit restriction. The Contractor shall operate the Transfer Station continuously and uninterruptedly every day of the year, except Holidays, during the Initial PTS Operating Period and CTS Contractor Operating Period of the Agreement except when the Contractor is prevented from doing so by an Uncontrollable Circumstance. At a minimum, the Transfer Station shall Accept Permitted Materials seven (7) days per week from 5:30 a.m. to 5:OO p.m. from City and Designated Haulers. In addition, the Transfer Station shall, at a minimum, Accept Permitted Materials from Self Haulers from 7:30 a.m. to 4:OO p.m. on Saturday and Sundays, except Holidays other than during any week in which the normal Waste pickup schedule of the Designated Hauler has been altered due to the occurrence of a Holiday, in which event, the Contractor shall not be obligated to hold open the Transfer Station for Self Haulers on Saturday of said week. The Contractor may Accept Permitted Materials and operate the Transfer Station beyond the hours set forth above, provided that it complies with Transfer Station Permits. The City and the Contractor shall meet and confer on the modifications to the facility receiving hours and days. 7W17373V1 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 3.09 Permits. A. Palomar Transfer Station Permits. The Contractor shall make best efforts to obtain all Permits, which are necessary during the PTS Operating Period for the Contractor to fulfill its obligations hereunder with regards to the operation of the Palomar Transfer Station. The Contractor shall submit a draft of all applications for Permits to the City for its review and approval prior to filing an application with the permitting agency. The Contractor shall keep the City fully informed at all times of the status of all Permit applications. The Contractor shall not agree to Permit terms and conditions without the prior written consent of the City which consent shall not be unreasonably withheld. Copies of all Permits shall be delivered to the City within ten (10) working days of their receipt by the Contractor. When appropriate and practical, City shall assist the Contractor in securing the necessary Conditional Use Permit(s) and amendments to such provided that the City shall in no way act in a manner that compromises its duties with regard to reviewing, approving, and issuing such permits. B. City Transfer Station Permits. City shall be responsible for obtaining all Permits required for the operation of the City Transfer Station including the conditional use permit issued by the City and solid waste facilities permit issued by the local enforcement agency/Califomia Integrated Waste Management Board. Furthermore, the City shall be responsible for the renewal and amendment of the operating Permits and any new Permits, which may become necessary during the Term for the City Transfer Station. All Permits shall be in the name of the City. the Contractor shall take direction fr0.m the City with regards to the City’s request for assistance in securing necessary Permits, providing information and documentation required in support of Permit applications, preparing Permit applications, and other related activities. The City shall seek the Contractor’s review of draft Permit applications prior to filing an application with the permitting agency so that the Contractor can provide its input. The City shall deliver copies of all Permits to the Contractor within five (5) working days of their receipt by City. C. Contractor Compliance with Permits. The Contractor shall comply with all Permits and terms and conditions of such Permits as they may be amended or superseded (including any mitigation measures related to the operation and maintenance of the Transfer Station which were adopted by the City when the Transfer Station’s environmental impact report was certified as well as the requirements of the California Integrated Waste Management Board); provided, however, in the event of any conflict between the terms and provisions of this Agreement and any such Permits, the terms and provisions of such Permits shall control as to the Contractor’s performance of its obligations under this Agreement. The Contractor shall be solely responsible for paying any fines or penalties imposed by governmental agencies for the Contractor’s noncompliance with Permit terms for the Transfer Station or the Contractor’s failure to obtain necessary Permits for the Palomar Transfer Station. In the event of any necessary increased expenses net of any increased revenues to the Contractor as a result of any City-initiated Permits or amendments thereto, or conditions imposed by the City, the Contractor shall be reimbursed for such necessary increased expenses net of any increased revenues, which shall be handled as a modification of the scope of services pursuant to Section 16.15 below. If such events or conditions impact all Transfer Station Users, the 70017373Vl 26 1 Contractor’s reimbursement for increased expenses net of any increased revenues shall be 2 apportioned to all Transfer Station Users. 3 3.10 Equipment, Repair, and Maintenance. 4 A. General. The Contractor shall purchase, lease, or otherwise procure, operate, and 5 maintain the Rolling Stock, equipment, supplies, and materials necessary for safe and efficient 6 Transfer Station operations, while meeting all Permit requirements and complying with 7 Applicable Law. 8 9 10 11 12 13 14 15 16 17 The Contractor shall maintain the Transfer Station structures, Processing equipment, Rolling Stock, and the Site in good working order and repair. The Contractor shall maintain a spare parts inventory and perform periodic maintenance in accordance with the Operations and Maintenance Manual. If maintenance and repair activities must be performed during Facility receiving hours, the activities shall be performed in a manner that does not impede the Contractor’s ability to fulfill the Contractor’s obligations and does not jeopardize safety of Transfer Station Users, visitors or employees. The Contractor shall maintain the aesthetic appearance of the Transfer Station and Site in a clean and neat manner in accordance with the Facility plans and specifications and the Operations and Maintenance Manual with due regard for reasonable control of odors, dust and noise. 18 B. Maintenance. The Contractor shall perform all necessary preventive and ongoing 19 maintenance functions for the Transfer Station to keep it in good working order, including but 20 not limited to conforming with warranties and guidelines for the use of equipment and 21 complying with all necessary and required inspections and reporting as required under 22 Applicable Law and regulations. 23 C. Offices. Building office areas shall be kept clean and orderly. Work areas within 24 buildings and structures shall be routinely swept or vacuumed and washed or dusted. 25 D. Transfer Building. The building loadout areas, and access ramps shall be cleaned and 26 swept at the end of each operation day. 27 E. Interior Surfaces. Interior surfaces of buildings and structures shall be repainted or 28 refurbished as needed by the Contractor so that they present an acceptable appearance. The type 29 of paint, color, and method of application shall match existing and be of equal quality and shall 30 conform to the conditions, covenants and restrictions for the Transfer Station Site. 3 1 F. Exterior Surfaces. Exterior surfaces of buildings and structures shall be repainted or 32 refurbished by the Contractor as needed so that they present an acceptable appearance. The type 33 of paint, color, and method of application shall match existing and be of equal quality and shall 34 conform to the conditions, covenants and restrictions for the Transfer Station Site. 35 G. Safe Condition and Repair. The Contractor shall maintain in good condition the roofs, 36 structural portions and exterior walls (including plate glass, glass windows, window frames, 37 doors and door frames), paved exterior areas and scales. The Contractor shall keep and maintain 38 in good, safe condition and repair the Transfer Station, appurtenances and every part thereof, 39 including without limitation the stationary equipment; plumbing and sewage facilities, 70017373v1 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 , 34 35 36 37 38 39 40 mechanical, electrical, lighting, heating, ventilating and air conditioning systems; fire and dust suppression systems; fuel storage and dispensing facilities; and all personal property furnished by the Contractor including vehicles. H. Periodic Maintenance. The Contractor shall perform periodic maintenance on all equipment and Rolling Stock as specified in the Operations and Maintenance Manual and in accordance with manufacturer’s specifications and recommendations. I. Repair of Damage. The Contractor shall also repair any damage to the Transfer Station caused by the actions of its employees, subcontractors, or other Contractor agents or by Transfer Station Users and visitors. 3.11 Safety. A. Tramc Flow. The Contractor shall direct traffic upon entry to the Transfer Station Site so that vehicles travel, queue, unload and exit in a safe manner. The Contractor shall ensure that no vehicles queue on public streets in the normal course of business. B. Fire Protection. The Contractor shall provide and maintain all necessary and appropriate fire control equipment, as provided in the Operations and Maintenance Manual and in accordance with the City Fire Department requirements. C. Safety Training. The Contractor shall perform regular safety training for all Transfer Station employees and safety training for its subcontractors as appropriate. 3.12 Litter and Vectors. The Contractor shall maintain the Transfer Station Site in a neat and orderly condition that minimizes the potential attraction of birds, rodents and insects, and shall, on a daily basis, remove litter and debris on Site and litter and debris along major access roads as specified in the conditional use permit. In the event of apparent vector activity, the Contractor shall implement reasonable additional vector control measures within twenty-four (24) hours. The Contractor shall implement and maintain a litter control program and diligently monitor and enforce the vehicle tarp requirements for all vehicles including Self Haul vehicles included in the litter control program. 3.13 Operations and Maintenance Manual. On the Effective Date, the Contractor shall submit to the City its Operations and Maintenance Manual. The Operations and Maintenance Manual shall contain sufficient detail to allow a third party reasonably experienced in Transfer Station operations to operate and maintain the Transfer Station, its equipment, and Rolling Stock, and to handle emergencies at the Facility. On or before June 1 of each year following the Effective Date during the PTS Operating Period or CTS Contractor Operating Period, the Contractor shall review the Operations and Maintenance Manual, revise it to reflect any changes in Transfer Station operation procedures during the previous calendar year, describe anticipated changes and scheduled Facility downtime during the upcoming calendar year, and submit a copy of the updated Operations and Maintenance Manual and written information regarding scheduled facility downtime to the City. The updated Operations and Maintenance Manual shall conform to the requirements of this Agreement. The City may, but need not comment on the original submittal or the annual updates to the Operations and Maintenance Manual. Neither the annual review nor comment upon, nor the failure of the City to comment upon the Operations and 7W17373Vl 28 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Maintenance Manual shall (1) relieve the Contractor of any of the Contractor’s obligations and responsibilities hereunder or impose any liability upon the City, nor (2) be deemed to be a representation by the City that the Contractor’s Transfer Station operation is in accordance with the Operations and Maintenance Manual or signifies that the Contractor has complied with all the Contractor’s obligations with respect to Transfer Station operation or with Applicable Law. 3.14 Meetings. Upon the request of either Party, the City and the Contractor shall meet to discuss Transfer Station operations and any related matters raised by either Party. 3.15 Complaints about Transfer Station Operation. A. General. The Contractor shall take all reasonable steps to minimize complaints. All complaints about the operation and maintenance of the Transfer Station shall be directed to the Person designated as Transfer Station general manager by the Contractor. The Contractor shall promptly and politely respond to complaints, including complaints from Designated Hauler(s)’s drivers, Self Haulers, other Transfer Station Users, City staff and its representatives, and the public at large, related to the Transfer Station Operations. The Contractor shall use Reasonable Business Efforts to resolve such complaints within thirty (30) calendar days of receipt thereof. Such complaints shall not be directed by the Contractor to the City with the exception of those that pertain to the City’s obligations. The Transfer Station manager shall compile a log of all complaints brought to the attention of the Contractor in a form that can be readily audited, and that indicates the date and time the complaint was received; the name, address and telephone number of the Person making the complaint; the corrective action taken in response to the complaint; and the date the corrective action was taken. B. Complaint Log. Each calendar quarter the Contractor shall send the City a copy of the complaint log for the previous quarter in accordance with Section 13.05.A. In the event more than fifty (50) complaints were received during a given month from a reasonable number of unrelated Persons, the Contractor shall pay liquidated. damages in accordance with Section 15.03.B.5. C. Litter Complaints. If the Contractor receives a complaint regarding litter problems on Site or along major access roads as specified in any conditional use permit for the Transfer Station (“Conditional Use Permit”), the Contractor shall promptly clean up litter within the same Working Day if the complaint was received before noon and by the end of the following Working Day if the complaint was received after noon. 3.16 Signage. The Contractor shall post easily-readable signs approved by the City at the entrance to the Transfer Station: detailing the regulations that must be followed by vehicles entering the Site; indicating the Transfer Station receiving hours; describing the types of Permitted Materials Accepted kom Transfer Station Users; stating Service Fees charged; and listing a local telephone number to call for information and assistance in case of emergency. All signage shall, at a minimum, be provided in English and Spanish and shall be consistent with conditional use permit requirements. 3.17 Accommodating Transfer Station Users. The Contractor shall provide a parking area for Transfer Station User vehicles adjacent to the Site exit where the Contractor will permit 70017373V1 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Transfer Station Users, including, but not limited to, Designated Hauler drivers, to park their vehicles and use bathroom facilities or make telephone calls on a public telephone provided by the Contractor. The Contractor shall allow Designated Hauler drivers to call their supervisors without charge. 3.18 Rejection of Unpermitted Material. A. Inspection. The Contractor shall use Standard Industry Practices to detect and discover Unpermitted Material and shall not knowingly Accept Unpermitted Material. The Contractor shall comply with the inspection procedures contained in the Operations and Maintenance Manual. The Contractor shall promptly modify such procedure to reflect any changes in Permits or Applicable Law. B: Unpermitted Materials Handling and Costs. The Contractor shall arrange for or provide transportation and delivery to an appropriately permitted recycling, incineration, or disposal facility of all Unpermitted Material that are encountered at the Transfer Station and which cannot be Accepted at a Designated Landfill. The Contractor is solely responsible for handling and arranging transport and disposition of any Unpermitted Material that is contained in or with Solid Waste, Recyclable Materials, or Organic Materials Accepted by the Contractor, and for all related costs. The Contractor has the right to pursue any remedies against the Person(s) generating or Delivering the Unpermitted Materials to the Transfer Station excluding the City. C. Remedies for Rejected Materials. If the Contractor rejects material Delivered to the Transfer Station at the time of Delivery because it contains Unpermitted Material including Hazardous Waste, the Contractor shall direct the Person(s) who Delivered the Unpermitted Material to cause removal and disposal of it in a safe and lawful manner, at the sole expense of the Person(s). In the event that Unpermitted Material is Delivered to the Transfer Station or Site, the Contractor shall be entitled to pursue whatever remedies, if any, it may have against Person(s) bringing such Unpermitted Material to the Transfer Station provided that in no case shall the City be considered the Person bringing such Unpermitted Material to the Transfer Station. In the event a City Designated Hauler Delivers Unpermitted Materials on a frequent or continuous basis and the Designated Hauler refuses to provide for the proper handling and Disposition of such Unpermitted Material, the Contractor shall provide written notice to the City of such refusal by Designated Hauler. Nothing herein shall excuse the Contractor from the responsibility of handling such Unpermitted Materials in a lawful manner and to arrange for the proper disposition of such materials. D. Notification. In the event the Contractor provides notice to the LEA or to the County of San Diego Department of Environmental Health of the Contractor’s rejection of any Delivered Materials, the Contractor shall promptly provide a copy of any such notice to the City. 3.19 Provision of Emergency Services. The Contractor shall provide emergency services at the City’s request in the event of major accidents, disruptions, or natural calamities subject to applicable Permit restrictions. The Contractor shall be capable of providing emergency services within twenty-four (24) hours of notification by the City or as soon thereafter as is reasonably practical in light of the circumstances. Emergency services, which exceed the Contractor’s obligations under this Agreement including, but not limited to, obligations related to facility 70017373Vl 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 receiving hours, the types and quantities of Permitted Materials Accepted, the nature of material Recovery activities, and Transfer requirements, shall be compensated through a modification to the scope of services using procedures described in Section 16.15. 3.20 City Right to Access Transfer Station. City and its designated representative@) shall have the right to enter, observe and inspect the Transfer Station at any time during Transfer Station operations; conduct studies or surveys of the Transfer Station; meet with the Transfer Station manager or his or her representatives at any time during normal operating hours; and meet with other employees upon request, which request shall not be unreasonably denied by the Contractor, provided that upon arrival at the Premises the City or its designated representative shall immediately contact the FacilityISite manager or hidher designee, and provided that the City and its representatives comply with the Contractor’s reasonable safety and security rules and shall not interfere with the work of the Contractor or its subcontractors. Upon City request, the Contractor shall make personnel available to accompany City employees on inspections. The Contractor shall ensure that its employees cooperate with the City and respond to the City’s reasonable inquiries. Upon City request, the Contractor shall make operational and business records available to the City or its agent during Transfer Station receiving hours described in Section 3.08 and shall provide the City copies of such records at the City’s request. 3.21 Treatment of Customers. In performing this Agreement, the Contractor shall be attentive to customer needs and shall not discriminate against customers or potential customers because of race, color, religion, gender, sexual orientation, marital status, physical or mental disability or national origin. 3.22 Professionalism. The Contractor, its employees, subcontractors, or other agents shall act in a professional and courteous manner at all times including times when such Persons are interacting with the Designated Hauler(s), its employees, subcontractors, or other agents. The Contractor, its employees, subcontractors, or other agents shall follow all operating procedures established for the Transfer Station including, but not limited to, those related to health and safety, traffic, gate house operations, Solid Waste unloading, load checking operations and procedures in the Operating and Maintenance Manual. 3.23 Cooperation and Disputes. The Contractor shall fully comply with its obligations and cooperate to its fullest extent with the Designated Hauler(s), and other Transfer Station Users. In the event of disputes between the Contractor and Designated Hauler(s), the Contractor shall attempt to resolve the dispute directly with the Designated Hauler(s). As a last resort, the Contractor may request assistance kom the City in resolving the dispute. In the event of a dispute, the Contractor shall continue performance of the Contractor’s obligations under this Agreement and shall attempt to continue to resolve such dispute in a cooperative manner, including but not limited to negotiating in good faith. 3.24 Personnel. A. Initial Hiring Practices. The Contractor shall use Reasonable Business Efforts to include, where relevant, such Transfer Station operating skills and Palomar Transfer Station knowledge among criteria for employment at the Transfer Station. Subject to Applicable Laws, the Contractor agrees to inform and offer employment to the employees presently employed at 70017373Vl 31 1 2 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 the Palomar Transfer Station who may become unemployed as a result of the City’s commitment to enter into this Agreement, for as many positions as the Contractor has available at the Transfer Station provided that such persons file an application for said jobs and meet all performance criteria required of other candidates for the same position. B. Equal Employment Opportunity. During performance of the Contractor’s obligations hereunder, the Contractor agrees, for itself, its assignees and successor in interest, as follows: 1. Compliance with Regulations. The Contractor shall comply with the Executive Order 11246 entitled ‘‘Equal Opportunity in Federal Employment,” as amended by Executive Orders 11375 and 12086 and as supplemented in Department of Labor regulations (41 CFR Chapter 60) (for purposes of this Section 3.24, “Regulations”). 2. Nondiscrimination. The Contractor hereby agrees that it will not discriminate against any employee or applicant for employment because of race, color, religion, gender, sexual orientation, marital status or national origin as provided under Applicable Laws. 3. Solicitations for Subcontractors, Including Procurements of Materials and Equipment. In all solicitations made by the Contractor for work to be performed under any subcontract, including procurements of materials or equipment, each potential subcontractor or supplier shall be notified by the Contractor of the Contractor’s obligation under the Regulations relative to nondiscrimination on the ground of race, color, religion, gender, national origin, age, marital status, physical handicap or sexual orientation. 4. Information and Reports. The Contractor shall provide all information and reports required by the Regulations, or by any orders or by any order or instructions issued pursuant thereto, and will permit access to its books, records, accounts, other sources of information and the Transfer Station as may be determined by the City to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of the Contractor is in the exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certify to the City, and shall set forth what efforts it has made to obtain the information. 5. Incorporation of Provisions. The Contractor shall include the provisions of paragraphs (1) through (4) of this Section in every subcontract, including procurements of materials and leases of equipment, unless exempted by the Regulations or by any order or instructions issued pursuant thereto. The Contractor shall take such action with respect to any subcontract or procurement as the City may reasonably direct as a means of enforcing such provisions, including sanctions for noncompliance; provided that if the Contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the Contractor may request City to enter such litigation to protect the interests of City. C. Qualifications and Performance. The Contractor shall engage and train qualified and competent employees, including managerial, supervisory, clerical, maintenance, and operating personnel, in numbers necessary and sufficient for Transfer Station operation and to perform the Contractor’s obligations. The Contractor shall train such staff to perform their work in a safe and efficient manner in accordance with the health and safety plan in the Operation and 32 70017373V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Maintenance Manual and shall ensure that each staff person treats Transfer Station Users, City employees and its representatives, and other members of the public with courtesy. 3.25 Scale Operation. A. Maintenance and Operation. The Contractor shall maintain at least two (2) State certified motor vehicle scales in accordance with Applicable Law and in a manner that allows for Designated Hauler(s)’ Delivery vehicles with unloaded (“tare”) weights to bypass the weighing operation when exiting the Transfer Station after unloading Permitted Materials. All scales shall be linked to a centralized computer recording and billing system which shall be compatible with the Contractor’s systems and account for tracking all incoming and outgoing materials. The Contractor shall operate such scales during facility receiving hours established in Section 3.08, provided that the Contractor shall provide City with visual access to weighing information at all times and copies thereof on the next Working Day on which the scale house is open. B. Vehicle Tare Weights. When new vehicles are placed into service by the City or its Designated Hauler(s), the Contractor shall promptly weigh such additional and replacement vehicles and determine the tare weight(s) of each vehicle. In measuring the vehicle tare weight, the Contractor shall record tare weight, hauler name, and vehicle identification number and within ten (10) Working Days of weighmg, the Contractor shall provide the City and Designated Hauler(s) with a report listing vehicle tare weight information. The Contractor shall have the right to request re-taring of vehicles two (2) times per year, unless there is reasonable suspicion or evidence that tare weights are not accurate, in which case, tare weights may be updated more frequently to ensure accuracy. In no case shall tare weights be updated more than four (4) times per year. C. Substitute Scales. To the extent practicable, if any scales in inoperable, being tested or otherwise unavailable, all vehicles shall be weighed on the remaining operating scales. To the extent that all the scales are inoperable, being tested, or otherwise unavailable, the Contractor shall substitute portable scales until the permanent scales are replaced or repaired. The Contractor shall arrange for any inoperable scale to be repaired as soon as possible and, in any event, within seventy-two (72) hours (excluding Holidays) of the failure of the permanent scale. The Contractor shall arrange to immediately obtain a temporary substitute scales(s) should the repair of the permanent scale require more than twelve (12) hours. D. Estimates. Pending substitution of portable scales or during power outages, the Contractor shall estimate the quantity of Solid Waste Delivered to the Transfer Station and Transported from the Transfer Station Site, on the basis of delivery vehicle and Transport trailer volumes, tare weight, Designated Landfill andor Processing facility weight records, and data obtained through historical information from the Transfer Station. These estimates shall take the place of actual weighing and shall be the basis for records while scales are inoperable. If the City and the Contractor cannot agree on the estimated quantities, the Parties shall handle the matter in accordance with the dispute resolution procedures in Section 16.14. The Contractor shall not estimate the weight of Recovered Materials but shall weigh Recovered Materials when scales are operable. 33 70017373Vl 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 E. Testing. The Contractor shall test and calibrate all scales in accordance with Applicable Law, but at least every twelve (12) months. Upon City request, the Contractor shall provide the City with copies of test results. The Contractor shall further test and calibrate any or all scales upon written request therefore by the City, within three (3) Working Days of such request. If such test results indicate that the scale or scales complied with Applicable Law, the City will reimburse the Contractor the Direct Costs of such tests. If such test results indicate that the scale or scales did not comply with Applicable Law, the Contractor will bear the costs thereof and the Contractor shall at its own cost adjust and correct, consistent with the results of such test, all weight measurements recorded and Service Fees calculated, charged and paid, as the case may be, from the date of such request. F. Weighing Standards and Procedures. The Transfer Station scale house(s) at the Site entrance serve as the location for weighmg vehicles and collecting Service Fees. The Contractor scale house personnel shall be responsible for inspecting the Permitted Materials Delivered to the Transfer Station. All City, Designated Hauler, and other large-capacity Delivery vehicles shall be charged Service Fees based on the Tonnage of Permitted Materials Delivered to the Transfer Station. Thus, the Contractor shall weigh and record inbound weights of all City, Designated Hauler, and other large-capacity Delivery vehicles when the vehicles arrive at the Site. In addition, the Contractor shall weigh and record outbound weights of such vehicles for which the Contractor does not maintain tare weight information. Small Self Haul vehicles may be charged Service Fees based on the volume of Permitted Materials Delivered to the Transfer Station. Thus, the Contractor may estimate the volume of Permitted Materials Delivered by Small Self Haul vehicles rather than weighing such vehicles. When appropriate, the Contractor shall collect payment of Service Fees from Transfer Station Users or shall charge the Transfer Station User’s account. The Contractor shall provide each Transfer Station User a receipt showing the date, time, quantity and type of Permitted Materials Delivered to the Transfer Station and the Service Fee charged for such material. The scale house computer system shall compile information into various reports in which a typical transaction includes documentation of the Service Fee charged, weight of vehicle, vehicle identification number, customer account, material type, route number, vehicle type and origin of Permitted Materials. 30 G. Records. In accordance with Article 13, the Contractor shall maintain scale records that 3 1 provide information such as, but not limited to, inbound and outbound weights of vehicles, 32 vehicle identification number, jurisdiction of origin of materials received, type of material, 33 hauler identification and/or classification, type, weight, and destination of outbound materials. 34 3.26 Collection of Service Fees. The Contractor shall collect Service Fees from all Persons 35 Delivering Permitted Materials to the Transfer Station with the exception of Self Haulers 36 Delivering Recyclable Materials to the BuybacWDrop-Off Center. The Contractor shall keep 37 complete and accurate records of all Service Fees collected, shall keep safe all monies and 38 negotiables collected, and shall make certain payments to the City as provided in Article 12. 39 3.27 Vehicle Turnaround Time. The Contractor shall operate the Transfer Station so that all 40 City and Designated Hauler Delivery vehicles Delivering Permitted Materials are processed from 41 the scale house weighing operation, unloaded and exited fiom the facility in no more than fifteen 42 (15) minutes on average in the normal course of business, from leaving the scale house 70017373V1 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 (Maximum Vehicle Turnaround Time). Should the Contractor fail to meet the Maximum Vehicle Turnaround Time, it shall pay liquidated damages stated in Section 15.04.B.1. 3.28 BuybacWDrop-Off Center. The Contractor shall Accept and, if appropriate, purchase at a Buyback/Drop-Off Center Recyclable Materials that are separated and Delivered to the Transfer Station by Self Haulers. The Contractor shall Process and market the Recyclable Materials received and retain any revenues from the sale of such materials. The BuybackiDrop- Off Center shall be opened and staffed to receive Recyclable Materials from Self Haulers 8:OO a.m. to 4:OO p.m., Tuesday through Saturday. At a minimum the BuybackiDrop-Off Center shall Accept California Redemption Value beverage containers, mixed paper, corrugated cardboard, newspaper, white ledger paper, and nonredemption value glass containers. 3.29 Receipt and Transfer of Source Separated Recyclable Materials. The City reserves the right to Deliver, or cause to be Delivered, Source Separated Recyclable Materials, which are collected from City residents or businesses by Designated Hauler(s), to the Transfer Station for consolidation and Transfer and Transport to a Processing location or off-Site location designated by the City, to the extent that space for this operation is reasonably available without otherwise impairing Transfer Station operations. If the City exercises such right, a change in the Contractor’s scope of work and determination of the Contractor’s Compensation for such services shall be determined through the process described in Section 16.15. The City shall provide notice to the Contractor thirty (30) days prior to the date the City intends to commence Delivery of Recyclable Materials to the Transfer Station. 3.30 Materials Recovery Activities. A. Diversion Guarantee. The Contractor recognizes and acknowledges that the City is required by Applicable Law to Divert at least fifty percent (50%) of its Solid Waste from Disposal. The Contractor further acknowledges that material recovery activities performed at the Transfer Station may assist the City in meeting its Diversion objective and, to the extent consistent with safe and prudent operating conditions in the Transfer Station facilities, commits to Diverting on a Reasonable Business Efforts basis two (2) percent of the City Waste Delivered by the City, Designated Haulers, and Self Haulers through the material recovery activities described in this Section. B. White Goods. The Contractor shall Accept and Divert White Goods Delivered to the Transfer Station using Reasonable Business Efforts. The Contractor shall handle, Recover, Process, and market such White Goods in accordance with Applicable Law. The Contractor may seek reimbursement from the Transfer Station Users Delivering White Goods by establishing Service Fees for Acceptance of White Goods. C. Brown Goods. The Contractor shall use Reasonable Business Efforts to Recover and Divert Brown Goods from City Waste by Processing and marketing the Recovered Brown Goods. D. Bulky Goods. The Contractor shall use Reasonable Business Efforts to Divert Bulky Goods hm the Solid Waste by sorting the Solid Waste on the floor of the Transfer Station. The 70017373v1 35 1 2 3 4 5 6 I 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Contractor shall use Reasonable Business Efforts to arrange for the reuse or Recycling of the Bulky Goods. E. Other Recyclable Materials. The Contractor shall use Reasonable Business Efforts to operate the Transfer Station for Recovery and Processing of additional materials such as construction and demolition waste and Organic Materials. F. Measurement of Diversion. The Contractor shall document the quantity of White Goods, Brown Goods, Bulky Goods, and other Recyclable Materials or Organic Materials removed from the Solid Waste Accepted at the Transfer Station and the quantity of such Diverted material from Disposal. The Contractor will calculate and measure compliance with the Diversion Guarantee on a monthly basis using a methodology acceptable to the City and shall report thereon in accordance with reporting requirements in Article 13. G. City Requested Material Recovery Operations. The Contractor recognizes that the City is committed to Recycling Solid Waste that has in the past been Disposed of in Landfills. For that reason, the Contractor, if directed by the City, shall submit a proposal to provide material Recovery operations that may include activities designed to Recover and Divert reuseable and Recyclable Materials from residential, commercial, or Self Haul Waste through a combination of mechanical and manual techniques. Any change in the Contractor’s scope of work and determination of the Contractor’s Compensation for such services shall be determined through the process described in Section 16.15. 3.31 Marketing of Recovered Materials. A. General. The Contractor shall use Standard Industry Practices to market Recovered Materials. B. End Use Certificate. To the extent practicable, the Contractor shall obtain a certification of end use from the Person that purchased or took possession of the Recovered Materials establishing that the Recovered Materials have been, in fact, Recycled, re-used or otherwise Diverted from Disposal. The Contractor shall not permit Recovered Materials to be incinerated, pyrolized, distilled, gasified, biologically converted other than being composted, or otherwise subjected to transformation as defined in Section 0201 of the California Integrated Waste Management Act except to the extent permitted by Applicable Law with respect to Waste Diversion. C. Marketing Records. The Contractor shall maintain complete, accurate, and detailed marketing records, including Tonnage of material marketed, purchaser, and end use in accordance with Article 13. The Contractor shall supply the City with additional information and documentation within fifteen (15) calendar days of the City’s request, describing the information requested with reasonable specificity. D. Recovered Materials Revenues. The Contractor shall retain all Recovered Materials Revenues. E. Avoided Disposal Costs. As an incentive to Divert materials Accepted at the Transfer Station, the Contractor shall benefit from any Disposal costs which are avoided through the 70017373V1 36 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Contractor’s Recovery, Processing, marketing, and Diversion of Recovered Materials; however, when the quantity of Diverted City Waste equals more than ten (10) percent of the City Waste Accepted, the Contractor shall share equally with the City in any benefits of Disposal costs which are avoided as described in Section 12.07. 3.32 Waste Requiring Disposal. All Solid Waste remaining after the material Recovery activities shall be Transported to and Disposed of at a Designated Landfill in accordance with provisions of Articles 4 and 5. 3.33 Security. The Contractor shall maintain adequate security at the Transfer Station Site during the PTS Operating Period and CTS Contractor Operating Period, as determined by the Contractor. 3.34 Ownership of Permitted Materials. Once Solid Waste, Recyclable Materials, or Organic Materials are Delivered to the Transfer Station, ownership and the right to possession of such material shall transfer directly from the Person Delivering such material to the Contractor. the Contractor is hereby granted the right to retain, Recycle, Process, Dispose of and otherwise use such Permitted Materials, or any part thereof, in any lawful fashion or for any lawful purpose desired by the Contractor with the exception that City Source Separated Organic Material shall be delivered by the Contractor to the Designated Organics Processing Facility. This right is subject to: A. The Contractor’s objective to meet the Diversion Guarantee and to assist the City in meeting its Diversion goals; and B. City’s right to direct the Contractor to Process Organic and Recyclable Materials at a particular licensed facility, if and only if City exercises such right by providing specific written direction to the Contractor. Subject to the provisions of this Agreement, the Contractor shall have the right to retain any benefit resulting from its right to retain, Recycle, Process, Dispose of, or reuse the Solid Waste, Recyclable Materials, or Organic Materials which it receives subject to the provision of this Agreement. Solid Waste, or any part thereof, which is Disposed of at a Disposal site or sites (whether landfill or transformation facility) shall become the property of the owner or operator of the Disposal site(s) once deposited there by the Contractor. During the City Use Period, City may obtain ownership or possession of City Waste upon written notice of its intent to do so, however, nothing in this Agreement shall be construed as giving rise to any inference that City has such ownership or possession unless such written notice has been given to the Contractor. 3.35 Contractor Operational Area. Throughout the Term, Contractor shall have exclusive rights to an operational area at the Transfer Station Site equivalent to the area being used as of the Effective Date of this Agreement for the purpose of providing parking sufficient for at least seventy (70) collection trucks and maintenance facilities for use as a trucking terminal to support Solid Waste and Recyclable Materials collection operations, for storage space and for other uses associated with the Contractor’s business operations or its Affiliates’ operations. The right to use the designated operational area shall be free of charge to the Contractor. 7CQ17373Vl 37 1 2 3 4 5 6 I 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 3.36 Standard Industry Practices. The Contractor shall employ Standard Industry Practices in conducting all activities specified in this Article. ARTICLE 4 TRANSPORTATION SERVICES 4.01 General. The Contractor shall provide, in accordance with Standard Industry Practices, Transportation services described in this Section during the Initial PTS Operating Period and CTS Contractor Operating Period. During the Subsequent PTS Operating Period and CTS Third Party Operation Period, the Contractor shall not be obligated to provide Transportation services to the City or its Designated Hauler@). During the Initial PTS Operating Period and the CTS Contractor Operating Period, the Contractor shall Transport and deliver to a Designated Landfill for Disposal as specified in Article 5 all City Waste Accepted at the Transfer Station that is not Recycled, reused, or otherwise Diverted. No City Waste may be Disposed of at any location other than a Designated Landfill except in cases of Uncontrollable Circumstances, the Contractor shall have the right to deliver Waste to another Permitted Solid Waste Disposal Facility with notice and approval of the City, not to be unreasonably withheld, conditioned or delayed. Delivery of City Waste to the Designated Landfill shall occur during the receiving hours of the Designated Landfill. The date, time, vehicle identification number, and weight of all vehicles Transporting City Waste shall be recorded when the vehicle leaves the Transfer Station Site. During the Initial PTS Operating Period and CTS Contractor Operating Period, the Contractor shall Transport and deliver to the Designated Organics Processing Facility all City Source Separated Organic Materials Accepted at the Transfer Station. Delivery of City Source Separated Organic Materials to the Designated Organics Processing Facility shall occur during the receiving hours of the Designated Organics Processing Facility. The date, time, vehicle identification number, and weight of all vehicles Transporting City Source Separated Organic Materials shall be recorded when the vehicle leaves the Transfer Station Site. The Contractor shall secure proposals and bids for purposes of selection of the Designated Organics Processing Facility and submit the same to the City. The City shall select the Designated Organics Processing Facility based on such proposals and bids. In the event the Governmental Fees charged by the Designated Organics Processing Facility increase at any time, the City shall have the right to direct the Contractor to obtain new proposals and bids and the City may elect to select a new Designated Organics Processing Facility based on such new proposals and bids. The Contractor agrees to move all Solid Waste off the Transfer Station tipping floor and to Transport all Solid Waste off-Site within forty-eight (48) hours of receipt thereof, and to conduct Transfer and Transport services in accordance with Transfer Station Permits and Applicable Law. The Contractor shall Transport Solid Waste, Recyclable Materials, and Organic Materials in accordance with the protocol included in the Operations and Maintenance Manual. The Contractor shall Transport Solid Waste, Recyclable Materials, and Organic Materials with sufficient regularity and frequency to minimize storage of Solid Waste, Recyclable Materials, and Organic Materials at the Transfer Station, avoid creation of nuisance, and to minimize the amount of Solid Waste, Recyclable Materials, and Organic Materials stored in the Transfer Station to create a safe, efficient operating environment in the Transfer Station. 38 7W17373Vl 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 4.02 Transport Equipment. The Contractor shall be responsible for acquisition, supply, operation, repair, and replacement of all Rolling Stock, storage and/or Transport containers, loading equipment, and other necessary equipment for Transportation of Solid Waste to a Designated Landfill and Transportation of City Source Separated Organic Material to the Designated Organics Processing Facility. Tractors and transfer trailers shall be kept clean, shall be thoroughly washed on the exterior at least once every week, and shall be thoroughly cleaned with pressurized hot water at least once per year. The tractors and trailers shall be repainted and/or refurbished so that they present a reasonably acceptable appearance to the City. the Contractor’s name and truck identification number shall be clearly marked on all vehicles that travel off the Transfer Station Site. All Transport vehicles shall be inspected by the driver prior to leaving the Transfer Station at the start of the day. The driver shall use a standard inspection checklist designed by the Contractor. Each driver is required to maintain a driver’s daily log. 4.03 Mode of Transport. A. Initial Mode of Transport. The initial mode of Transporting Solid Waste and City Source Separated Organic Materials shall be by large volume highway Transfer truck and trailer. B. Alternative Modes of Transport. During the Initial PTS Operating Period and CTS Contractor Operating Period, the use of rail haul or another alternative mode of Transport may be of potential interest to the City or the Contractor. Alternative modes of Transport may be considered a change in the Contractor’s obligation and shall be addressed as a modification to scope of services in accordance with Section 16.15. 4.04 Prohibition of Disposal of Recovered Materials. The Contractor shall not Transport Recovered Materials, Source Separated Recyclable Materials or Source Separated Organic Materials, to a Designated Landfill or any other disposal facility for the purpose of Disposal, without the prior consent of the City. 4.05 Transport Routes. The Contractor shall select routes from the Transfer Station to Disposal facilities and Processing facilities, which minimize inconvenience and disturbance to the public and comply with Permits and Applicable Law. The Contractor shall provide City with prompt notice of such selection and any change in routes that affect area(s) within the City limits within a two (2) mile radius of the Transfer Station. 4.06 Highway Rolling Stock Loading Standard. The Contractor shall load Solid Waste, Recyclable Materials, and Organic Materials into the highway Rolling Stock in a manner, which minimizes vehicle waiting time and maximizes the weight of materials in each vehicle, without exceeding legal limits. Each vehicle shall be efficiently loaded by combining materials of varying densities, distributing materials with respect to axle weights, tamping down or compacting the materials in the vehicles, or by other suitable means. 4.07 Litter Prevention. The Contractor shall not spill or scatter Solid Waste, Organic Materials or Recovered Materials during Transfer or Transportation thereof. The Contractor shall enclose or cover all vehicles Transporting Solid Waste, Organic Materials or Recovered Materials from the Transfer Station in a manner approved by the City. If any Solid Waste, 70017373V1 39 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Organic Materials or Recovered Materials are spilled or scattered, whether on private or public property, the Contractor shall immediately clean them up. 4.08 Vehicle Parking, Fueling and Maintenance. The Contractor may park, fuel, maintain, and repair vehicles for Transportation of Solid Waste, Organic Materials, or Recovered Materials at the designated area of the Transfer Station; provided the Contractor shall ensure that such vehicles do not interfere with or pose any hazard to the Transfer Station Users Delivering Permitted Materials to the Transfer Station. 4.09 Transport Permit. The Contractor shall secure and maintain all Permits required for Transporting Solid Waste, Organic Materials, and Recovered Materials by Applicable Law. The Contractor shall supply the City with copies of any such Permits (including prior Permits, current Permits, or renewals thereof) promptly upon request. 4.10 Standard Industry Practices. the Contractor shall employ Standard Industry Practices in conducting all activities specified in this Article. ARTICLE 5 DISPOSAL SERVICES 5.01 General. the Contractor shall provide, in accordance with Standard Industry Practices, Disposal services described in this Section during the Initial PTS Operating Period and CTS Contractor Operating Period at Designated Landfills. During the Subsequent PTS Operating Period and CTS Third Party Operating Period, the Contractor shall not be obligated to provide Disposal services to the City or its Designated Hauler(s). 5.02 Responsibilities of the Contractor. During the Initial PTS Operating Period and CTS Operating Period, the Contractor or, as applicable, its Affiliates owning and/or operating the Designated Landfills shall be responsible for the following Disposal activities, (All references to “Affiliates” in this Article 5 shall mean and refer to those Affiliates of the Contractor who own and/or operate the Designated Landfills). A. Accept Waste. The Contractor’s Affiliate shall Accept and Dispose of Solid Waste delivered from the Transfer Station, and weigh all delivery vehicles at the time of entry at a Designated Landfill site using the Contractor’s scales. If appropriate, the Contractor’s Affiliate shall provide and operate Transport trailer tippers for the purposes of unloading Transport vehicle trailers. B. Operations. The Contractor or its Affiliate(s), at its cost and expense, shall at all times operate one or more of the Designated Landfill(s). The responsibilities of the Contractor or its Affiliate(s), as applicable, for the Designated Landfill shall include, but are not limited to: 1. Operation, management, and maintenance of the refuse fill areas; 2. Provision, operation, and maintenance of all equipment, and supplies necessary for operations, Closure, Post-Closure, and environmental monitoring; 7cm17373VI 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 3. Operation, management and maintenance of leachate and landfill gas management systems, groundwater monitoring and management systems, storm water drainage and control systems, treatment facilities, buildings, on-site roadways, utilities, and any other required facility elements. C. Equipment and Supplies. The Contractor’s Affiliate shall provide all equipment, and consumables necessary to operate Designated Landfills. D. Traffic Control and Direction. The Contractor’s Affiliate shall be responsible for the construction and maintenance of all roads required at the Designated Landfills. The Contractor’s Affiliate shall direct on-site traffic to appropriate unloading areas and provide a safe working environment. E. Hazardous Substances. The Contractor’s Affiliate shall maintain an effective monitoring system to prevent Hazardous Substances from being Accepted at a Designated Landfill as required by Applicable Law, and shall ensure the capability to manage Hazardous Substances following inappropriate Acceptance of a Hazardous Substance. F. Permits. The Contractor’s Affiliate shall obtain and maintain all Permits required for operation of the Designated Landfills and for the performance of its obligations thereunder. G. Invoicing. The Contractor’s Affiliate shall invoice the Transfer Station operations on a monthly basis requesting payment of the Disposal Fee corresponding to the Tonnages of Waste delivered from the Transfer Station during the previous month. H. Closure and Post-Closure. The Contractor’s Affiliate shall safely manage the Designated Landfills and Designated Landfills properties in Full Regulatory Compliance during Closure and Post-Closure period(s) including fulfillment of State funding requirements. The Contractor acknowledges that it, through the Performance of its Affiliate, is solely responsible in relation to the City for (i) the appropriate Closure and Post-Closure activities of the Designated Landfills and (ii) the establishment and funding of any reserve funds required by Applicable Law for the purposes of providing funds for the payment of costs of Closure of the Designated Landfills (or any cell within the Designated Landfill) or Post-Closure activities relating to the Designated Landfills. Without limitation, in no event shall the City or its Designated Hauler(s) be responsible for paying any deficiencies in such required reserves. In addition, the City or its Designated Hauler(s) shall have no responsibility to make any payments in the event that actual Closure and Post-Closure costs relating to the Designated Landfills exceed the amounts reserved by the Contractor for such purposes. 5.03 Receiving and Operating Hours. Beginning on the Effective Date, the Contractor’s Affiliates shall keep open and operate one or more Designated Landfills continuously and uninterruptedly during facility receiving hours, except as limited by applicable Permits restrictions, throughout the Initial PTS Operating Period and CTS Contractor Operating Period, except when the Contractor is prevented from doing so by an Uncontrollable Circumstance. 5.04 Scale Operation. Scale operation shall be performed consistent with the procedures set forth in Section 3.25 or Standard Industry Practice. 70017373v1 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 5.05 Right to Enter Facility and Observe Operations. The Right to Access provisions of Section 3.20 shall apply except 48 hours notice by the City will be required to enter and observe the Designated Landfills. 5.06 Record Keeping. The Contractor shall keep daily records of Solid Waste delivered from the Transfer Station sufficient to determine compliance with all provisions of this Agreement. At a minimum, such record keeping shall consist of the date, time of weighing, and weight for each incoming vehicle; invoices submitted by the Contractor to the Transfer Station operator, including all background data used in generating the invoices. the Contractor shall maintain records so as to be available to the City upon City request, and shall within five (5) Working Days provide the City copies of such records. All such records shall be preserved and retained for a period no less than seven (7) years including retention of records beyond the expiration or termination date of the Agreement. 5.07 Meetings. Upon five (5) Working Days notice of a request by either Party to meet with the other Party, the Parties shall meet to discuss operations of Designated Landfills and any related matters raised by either Party. 5.08 Contractor Landfill Capacity Guarantee and Waste Acceptance Priority. A. Landfill Capacity Guarantee. During the Initial PTS Operating Period and CTS Contractor Operating Period, the Contractor shall guarantee its ability to Accept and Dispose of all City Waste Transported &om the Palomar Transfer Station to a Designated Landfill including all Solid Waste Delivered to the Palomar Transfer Station by the City, Designated Hauler(s), and Self Haulers. The Contractor shall have the right to select one or more Designated Landfills where Solid Waste from the Transfer Station will be Disposed. B. No Representation by City. The City makes no representation, and is under no obligation, regarding the quantity or composition of the Solid Waste delivered to the Designated Landfills by the City, Designated Haulers, Self Haulers, or other Transfer Station Users. 5.09 Contractor Representative. A representative of the Contractor or its Affiliate shall be present at the Designated Landfill(s) at all times that any operations are being conducted thereon with respect to Disposal of Waste as is the Contractor’s responsibility under this Agreement. The representative shall be available during the Contractor’s or Affiliate’s office hours for telephone communications with the City Manager or bisiher designee. The Contractor shall file with the City Manager the name, address and telephone number of a representative who can be contacted at any time during normal business hours. The representative must be fully authorized and equipped to respond to reasonable requests of the City Manager or hisher designee. 5.10 Standard Industry Practices. The Contractor shall employ Standard Industry Practices in conducting all activities specified in this Article. 70017373Vl 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 ARTICLE 6 SUBSEQUENT PTS OPERATING PERIOD 6.01 General. The Contractor’s and the City’s rights and responsibilities during the Subsequent PTS Operating Period are described in this Article. The Contractor’s Compensation during the Subsequent PTS Operating Period is described in Article 9. 6.02 Transfer Station Services. During the Subsequent PTS Operating Period, the Contractor and the City shall comply with Transfer Station requirements for the Palomar Transfer Station in accordance with requirements of Article 3 with the exception of services described in Sections 3.03 (City Transfer Station Development), 3.06 (Receipt of Permitted Materials), 3.07 (Transfer Station Throughput Guarantee and Waste Acceptance Priority), 3.30 (Materials Recovery Activities), 3.31 (Marketing of Recovered Materials), and 3.32 (Waste Requiring Disposal), which shall not be required under this Agreement during the Subsequent PTS Operating Period. To the extent practical, the Contractor shall segregate City Waste fkom materials delivered by other Transfer Station Users and shall separately transfer such materials in the event different landfills are utilized for disposal. 6.03 City Right to Transfer (City Use Period). City shall have the right to arrange for Delivery of all or a portion of City Waste and Source Separated Organic Materials collected by the City or its Designated Hauler to the Palomar Transfer Station for Transfer. In the event the City chooses to exercise its right to use the Palomar Transfer Station, the City shall provide one (1) year written notice to the Contractor of the date such Deliveries shall commence, the type and estimated daily Tonnage of material to be Delivered to the Palomar Transfer Station, and the date such Deliveries shall cease, the name(s) of the Designated Hauler(s) to Deliver such material, and a statement of the City’s commitment to Direct its Designated Hauler(s) to Deliver all or a portion of such material collected in the City. During the City Use Period, the City shall be responsible for arranging Transportation, Disposal, and Processing services for such materials. The Contractor shall be obligated to receive and Accept City Waste and Source Separate Organic Materials Delivered by City or its Designated Hauler(s) and Transfer such materials into containers or vehicles designated by the City. City or its Designated Hauler(s) shall compensate the Contractor for use of the Transfer Station during the City Use Period in accordance with Article 9. 6.04 Receipt of Permitted Materials. During the Subsequent PTS Operating Period, the Contractor shall receive and Accept at the Palomar Transfer Station all City Waste Delivered by Self Haulers and all Recyclable Materials Delivered by Self Haulers to the Buyback/Drop-Off Center. During the City Use Period, the Contractor shall receive and Accept at the Palomar Transfer Station all City Waste and City Source Separated Organic Materials Delivered by, or on behalf of the City and its Designated Hauler(s). During the City Use Period, the Contractor comply with Waste acceptance priorities stated in Section 3.07.B. The City makes no representation, and is under no obligation, regarding the quantity or composition of the Solid Waste, Recyclable Materials, or Organic Materials Delivered to the Transfer Station by the City, Designated Haulers, or Self Haulers. 7W17373V1 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 ‘3 6 37 38 39 40 41 42 6.05 Transfer Station Throughput Guarantee and Waste Receiving Priority. The Contractor shall not be responsible for providing a Transfer Station Throughput Guarantee except during the City Use Period when the Contractor shall guarantee its.ability to Accept and Transfer all Solid Waste Delivered by the City or its Designated Hauler(s), and the Contractor shall guarantee its ability to Accept and Transfer all City Source Separated Organic Material Delivered to the Transfer Station by the City or its Designated Hauler@). 6.06 Materials Recovery Activities. The Contractor shall not be obligated to perform any material Recovery activities; however, in the event the Contractor Recovers Recyclable Materials, the Contractor shall use Reasonable Business Efforts to market Recovered Materials and the Contractor shall retain all Recovered Materials Revenues. 6.07 Transportation, Disposal, and Processing Services. The Contractor shall be solely responsible for providing or arranging for Transportation and Disposal or Processing services for Solid Waste, Recyclable Materials and Organic Materials Accepted at the Palomar Transfer Station from Transfer Station Users other than the City and its Designated Hauler(s) and may select the Disposal and Processing facilities where materials shall be delivered. When providing Transport services during the Subsequent PTS Operating Period for Transfer Station Users, the Contractor shall comply with requirements specified in Article 4 with the exception of Section 4.01. 6.08 Contractor’s Right of First Offer. The City shall be responsible for arranging Transportation and Disposal or Processing services for Solid Waste and Source Separated Organic Materials Accepted at the Palomar Transfer Station from the City or its Designated Haulers during the City Use Period. The City shall provide the Contractor with an opportunity to present an offer for Disposal services prior to the City seeking offers from other Disposal providers. The Contractor’s offer for Disposal services shall be provided within thirty (30) calendar days of the City’s request. The City shall review the Contractor’s offer and the Parties shall negotiate in good faith to reach an agreement for the Contractor’s provision of Transportation, Processing, and/or Disposal services. In the event the Parties do not reach an agreement within sixty (60) calendar days of the City’s receipt of the Contractor’s offer, the City shall have the right to enter into negotiations with other parties or to solicit proposals for Transportation, Processing, and/or Disposal services for City Waste Delivered to the Palomar Transfer Station by the City or its Designated Haulers during the City Use Period. In the event the City solicits proposals from other parties for Disposal services, the Contractor shall have the opportunity to participate in the proposal process and submit a proposal. ARTICLE 7 CTS MARKETING PERIOD 7.01 General. During the CTS Marketing Period, the City shall guarantee Transfer Capacity to the Contractor. The Contractor shall have the right, and the corresponding obligation to pay for the right, to use capacity up to but not exceeding the Transfer Capacity Guarantee, which shall be equal to one thousand two hundred (1,200) Tons of Solid Waste per day (Monday through Friday) and eight hundred (800) Tons of Solid Waste each Saturday and Sunday and the right to Deliver to the City Transfer Station Solid Waste up to but not exceeding the Transfer Capacity Guarantee. City and the Contractor shall meet and confer to discuss pricing for such 7W17373VI 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 use and the terms and conditions of any additional capacity to be provided the Contractor in addition to the amount of the Transfer Capacity Guarantee. 7.02 Transfer Station Services. The City shall provide or arrange for Transfer Station services at the City Transfer Station which, at a minimum, shall be similar in nature to those required by the Contractor in Section 3.05 except requirements of Sections 3.05.D and 3.05.F. To the extent practical, the City or its designated Transfer Station operator shall segregate Solid Waste Delivered by the Contractor or the Contractor’s Haulers from materials Delivered by other transfer station users and shall separately Transfer such materials. 7.03 CTS Marketing Period. The Contractor shall have the right to market Transfer Station services at the City Transfer Station and Deliver, or arrange for Delivery of Solid Waste, Recyclable Materials, and Organic Materials collected by the Contractor or other parties up to but not exceeding the Transfer Capacity Guarantee specified in Section 7.01. 7.04 Receipt of Permitted Materials. During the CTS Third Party Operating Period, City or its designated Transfer Station operator shall receive and Accept at the City Transfer Station Solid Waste, Recyclable Materials, or Organic Materials Delivered by the Contractor or the Contractor’s Haulers through agreements between such parties and the Contractor provided that quantities of such materials do not exceed maximum the Transfer Capacity Guarantee stated in Section 7.01. 7.05 Professionalism. The Contractor and the Contractor’s Haulers shall act in a professional and courteous manner at all times including times when such Persons are interacting with the City, its employees, subcontractors, designated Transfer Station operator, or other agents. The Contractor, its employees, subcontractors, or other agents and the Contractor’s Haulers shall follow all operating procedures established by the Transfer Station including, but not limited to, those related to health and safety, traffic, gate house operations, Solid Waste unloading, load checking operations and procedures in the Operating and Maintenance Manual. 7.06 Cooperation and Disputes. During the CTS Third Party Operating Period, the Contractor and the Contractor’s Haulers shall cooperate to the fullest extent with the City, its designated Transfer Station operator, and other Transfer Station Users. In the event of disputes between the Contractor and the City’s designated Transfer Station operator, the Contractor shall attempt to resolve the dispute directly with the City’s designated Transfer Station operator. The Contractor may request assistance from the City in resolving the dispute. In the event of an unresolved dispute, the dispute shall be finally resolved between the Contractor and the City pursuant to the provisions of Section 16.14 below, during which time the Contractor shall continue performance of the Contractor’s obligations under this Agreement. The Contractor’s cooperation with the City’s designated Transfer Station operator shall include, but not be limited to, the Contractor’s responsibility to arrange for loading of its Transportation vehicles at times during normal business hours which are convenient with the City’s designated Transfer Station operator. 7017373V1 45 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39, ARTICLE 8 CONTRACTOR’S COMPENSATION DURING INITIAL, PTS OPERATING PERIOD 8.01 General. During the Initial PTS Operating Period, the Contractor’s Compensation provided for in this Article shall be the full, entire, and complete compensation due to the Contractor pursuant to this Agreement for all labor, equipment, materials and supplies, taxes, insurance, bonds, overhead, profit, and all other things necessary to perform all the services required by this Agreement. A. Re-Calculation of Contractor’s Compensation. It is the intention of the parties that the Contractor’s Compensation shall be re-calculated and re-established by the parties in the event that the Initial PTS Operating Period extends beyond the tenth (10”) anniversary of the Effective Date (the “Re-Adjustment Date”) for any reason. In the event the City elects to extend the Initial PTS Operating Period under Section 2.04 (A) above (except where the CTS Operations Date is expected to occur by the twelfth (12”) year of the Term, or upon commencement of the Subsequent PTS Operating Period),’the Contractor shall deliver to the City, not later than ninety (90) days prior to the Re-Adjustment Date, the Contractor’s calculation of the Contractor’s Compensation for the portion of the Term extending past the Re-Adjustment Date. 8.02 Service Fees. Service Fees are the per-Ton charges or per-item charges the Designated Hauler(s), Self Haulers, and other Transfer Station Users pay the Contractor for Delivery of Permitted Materials to the Transfer Station. A. City-Regulated Service Fee. During the Initial PTS Operating period, the City through its contract with Designated Hauler(s), shall set and maintain residential, commercial, and other relevant collection rates levied by Designated Hauler(s) at levels and at appropriate times to adequately allow the Designated Hauler(s) to pay the Contractor the PTS Solid Waste Fees and PTS Organic Fee set by this Agreement. The City’s obligation to set and maintain the PTS Solid Waste Fee and PTS Organic Fee described in this Section shall also apply in the event the City, at some future date, should decide to perform collection services itself for all or part of the City Waste or City Source Separated Organic Materials. B. Contractor-Regulated Service Fees. The Contractor shall be solely responsible for setting, adjusting, and regulating PTS Other Fees for Permitted Materials Delivered to the Palomar Transfer Station generated outside the City provided that such Service Fees are set to provide for payments to City as required in Article 12 and recognize the City as a most favored customer in accordance with Section 8.07. Fees for self-hauled solid waste generated within the City shall be approved by the City Manager. C. Collection of Service Fees. The Contractor is responsible for collection of all PTS Service Fees. Service Fees may be collected fkom Designated Hauler(s) and other Transfer Station Users at the Transfer Station scale house at the time of Delivery of Permitted Materials or the Contractor may submit monthly invoices to Transfer Station Users requesting payment for Service Fees. The Contractor shall be liable for all delinquent payments and bad debt. 70017373V1 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 D. Only Compensation Due by City or its Designated Hauler(s). The PTS Solid Waste Fee and PTS Organic Fee collected from the Designated Hauler(s) during the Initial PTS Operating Period are the only compensation due the Contractor from the Designated Hauler(s) for service provided during the Initial PTS Operating Period unless otherwise provided in this Agreement or agreed to by the Parties. The Contractor shall not charge City for Permitted Materials, equal to or less than 100 Tons annually, generated in the City and Delivered to the Transfer Station in City owned and operated vehicles. 8.03 PTS Solid Waste Fee. A. General. The initial PTS Solid Waste Fee (thirty-six dollars [$36.00] per Ton) includes compensation for Transfer Station services, Transportation of City Waste to Designated Landfills, Disposal Services, and all applicable Governmental Fees. The PTS Solid Waste Fee shall be effective during the Initial PTS Operating Period. The PTS Solid Waste Fee is separated into two components: the Base Component and Governmental Fee Component. The adjustment process for the PTS Solid Waste Fee is presented in Section 8.04. B. Base Component. The initial Base Component is that portion of the PTS Solid Waste Fee comprised of the Contractor’s fixed and variable costs and equals thirty-two dollars ($32) per Ton. The Base Component shall be adjusted annually during the Initial PTS Operating Period to reflect the change in the CPI values as specified in Section 8.04.B, but will not otherwise be adjusted except as the result of a modification to the scope of services as provided in Section 16.15. C. Governmental Fee Component. The Governmental Fee Component is that portion of PTS Solid Waste Fee comprised of the Contractor’s Governmental Fees. The Governmental Fee Component is subject to adjustment only as necessary to reflect changes in Governmental Fees required by third parties as provided in Section 8.04.C. 8.04 Adjustment of PTS Solid Waste Fee. A. General. The intent of this Agreement is to provide for an annual adjustment to the PTS Solid Waste Fee during the Initial PTS Operating Period. The first annual adjustment to the Base Component of the PTS Solid Waste Fee will be effective June 1,2003. The annual adjustment will reflect the annual change in the CPI and the effect of such change on the Base Component of the PTS Solid Waste Fee and changes in Governmental Fees. A change in any fees shall.be effective in accordance with the provisions of this section. B. Base Component Annual Adjustment. The annual change to the Base Component of the PTS Solid Waste Fee shall be calculated using the value of the most recently published CPI and the value of the CPI twelve (12) months prior to the most recently published CPI (previous 12-month CPI value). The specific adjustments shall be rounded to the nearest cent per Ton. The adjustment to the Base Component shall be made as follows: Adjusted PTS Solid Waste Fee Base Component = Base Component of the PTS Solid Waste Fee x (most recent CPI value/previous 12-month CPI value) 7W17373Vl 47 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 For example, assume: 1. Date of first annual adjustment is June 1,2003 2. Then-current Base Component of the PTS Solid Waste Fee = $32.00 per Ton 3. Most recent CPI value (February 2003) = 126.1 4. Previous 12-month CPI value (February 2002) = 124.2 The Adjusted Variable Components are calculated as follows: Adjusted PTS Solid Waste Fee Base Component = $32.00 x (126.1h24.2) = $32.48 per Ton If during an annual adjustment, the CPI change for the annual period exceeds five (5) percent, the City will adjust the Base Component of the PTS Solid Waste Fee by five (5) percent. C. Governmental Fee Component Annual Adjustment. The initial PTS Solid Waste Fee (thirty six [$36.00] per Ton) includes all applicable Governmental Fees as of the Effective Date (that equals four dollars [$4.00] per Ton). The annual net change to the Governmental Fees shall be made to reflect any adjustment (either increase or decrease) in Governmental Fees subsequent to the Effective Date. The following steps shall be used to determine if an adjustment in Governmental Fee Component should be made: 1. No later than March 1, the Contractor shall provide written verification and documentation of the specific Governmental Fees to be included in the PTS Solid Waste Fee (listed separately) comprising the then-current Governmental Fee Component and present the amount by which they have increased, decreased, or remained the same by comparing Governmental Fees to those included in the PTS Solid Waste Fee on the Effective Date. 2. Based on the information submitted by the Contractor, and any additional information the City may reasonably request and/or separately collect for its independent verification, the City shall adjust the Governmental Fee Component to reflect any verified net increases or decreases. The specific adjustments shall be rounded to the nearest cent per Ton. 3. The annual adjustment provided for in this Section shall not occur until the City has, to its reasonable satisfaction, verified the then-current Governmental Fees, except that the City shall not unreasonably delay an adjustment of the PTS Solid Waste Fee. 4. In the event any Governmental Fee, or increase therein, becomes effective at a time other than the time for the annual adjustment in the Governmental Fee Component, the Contractor shall provide not less than ninety (90) days prior written notice thereof to the City and, subject to the City’s verification thereof, an adjustment for such new or increased Governmental Fee shall become effective as of the expiration of such 90-day period. 70017373Vl 48 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 D. Adjusted PTS Solid Waste Fee. The adjusted PTS Solid Waste Fee shall be calculated as follows: Adjusted PTS Solid Waste Fee = (PTS Solid Waste Fee Adjusted Base Component + Adjusted Governmental Fee Component) For example, assume: 1. Date of annual adjustment is June 1,2003 2. Adjusted PTS Solid Waste Fee Base Component = $32.48 per Ton 3. Net change in Governmental Fee Component = $0.25 per Ton 4. Adjusted Governmental Fee Component = $4.25 per Ton The Adjusted PTS Solid Waste Fee is calculated as follows: Adjusted PTS Solid Waste Fee = $32.48 + $4.25 per Ton Adjusted PTS Solid Waste Fee = $36.73 per Ton. E. Adjustment Schedule. The Contractor shall prepare and submit to the City its calculation of the adjusted PTS Solid Waste Fee on or before March 1 of each year during the Initial PTS Operating Period. The Contractor’s submittal shall present the calculation of the adjusted PTS Solid Waste Fee and all supporting documentation needed to verify the calculation, CPI indices, and Governmental Fees. City staff will review the Contractor’s submittal within fourteen (14) calendar days of receipt and acknowledge the City’s acceptance of the adjusted PTS Solid Waste Fee or shall provide comments describing any exceptions to the Contractor’s calculations. If the City staff does not accept the Contractor’s calculation of the PTS Solid Waste Fee, the Contractor and the City shall meet within seven (7) calendar days of the Contractor’s receipt of the City’s comments to resolve outstanding issues. In the event the City and the Contractor cannot agree on the adjusted PTS Solid Waste Fee within sixty (60) calendar days of the Contractor’s submittal of its calculation of the adjusted PTS Solid Waste Fee, the matter shall be resolved through the dispute resolution procedures described in Section 16.14. The City will give notice to the Contractor of any change in the PTS Solid Waste Fee no later than thirty (30) calendar days prior to the effective date of the new PTS Solid Waste Fee. 8.05 PTS Organic Transfer Fee. A. General. The initial PTS Organic Transfer Fee (six dollars per Ton) includes compensation for Transfer Station services and applicable Governmental Fees. The PTS Organic Transfer Fee is separated into two components: the Base Component, and the Governmental Fee Component such that the PTS Organic Transfer Fee equals the sum of the two components. The adjustment process for the PTS Organic Transfer Fee is presented in Section 8.06. 70017373Vl 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 B. Base Component. The initial Base Component is that portion of the PTS Organic Transfer Fee comprised of the Contractor’s fixed and variable costs and equals six dollars ($6.00) per Ton. The Base Component shall be adjusted annually during the initial PTS Operating Period to reflect the change in the CPI values as specified in Section 8.04.B., but will not otherwise be adjusted except as the result of a modification to the scope of services as provided in Section 16.15. C. Governmental Fee Component. The Governmental Fee Component is that portion of PTS Organic Transfer Fee comprised of the Contractor’s Governmental Fees. The Governmental Fee Component is subject to adjustment only as necessary to reflect changes in Governmental Fees required by third parties as provided in Section 8.06.C. 8.06 Adjustment of PTS Organic Transfer Fee. A. General. The intent of this Agreement is to provide for an annual adjustment to the PTS Organic Transfer Fee during the Initial PTS Operating Period. The first annual adjustment to the Base Component of the PTS Organic Transfer Fee will be effective June 1,2003. The annual adjustment will reflect the change in the CPI and the effect of such change on the Base Component of the PTS Organic Transfer Fee and changes in Governmental Fees. B. Base Component Annual Adjustment. The annual change to the Base Component of the PTS Organic Transfer Fee will be calculated using the value of the most recently published CPI and the value of the CPI which is twelve (12) months prior to the most recently published value of CPI brevious 12-month CPI value). The specific adjustments shall be rounded to the nearest cent per Ton. The adjustment to the Base Component shall be made as follows: Adjusted PTS Organic Transfer Fee Base Component = Base Component of the PTS Organic Transfer Fee x (most recent CPI value/previous 12-month CPI value) For example, assume: 1. Date of annual adjustment is June 1,2003 2. Then-current Base Component of the PTS Organic Transfer Fee = $6.00 per Ton 3. Most recent CPI value (February 2003) = 126.1 4. Previous 12-month CPI value (February 2002) = 124.2 The Adjusted Variable Components are calculated as follows: Adjusted PTS Organic Transfer Fee Base Component = $6.00 x (126.11124.2) = $6.09 per Ton C. Governmental Fee Component Annual Adjustment. The initial PTS Organic Transfer Fee (six dollars [$6.00]) per Ton) includes all applicable Governmental Fees as of the Effective Date and equals no dollars ($0.00) per Ton. The Governmental Fee Component of the PTS Organic Transfer Fee shall be adjusted in the same manner described in Section 8.04.C., except 7W17373VI 50 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 that no Governmental Fees are included in the initial PTS Organic Transfer Fee, and only Governmental Fees applied specifically to the Transfer of Organic Materials after the Effective Date will be considered. D. Adjusted PTS Organic Transfer Fee. The adjusted PTS Organic Transfer Fee shall be calculated as follows: Adjusted PTS Organic Transfer Fee = PTS Organic Transfer Fee Adjusted Base Component + Adjusted Governmental Fee Component For example, assume: 1. Date of annual adjustment is June 1,2003 2. Adjusted PTS Organic Transfer Fee Component = $6.09 per Ton 3. Net Change in Governmental Fee Component = $0.25 per Ton 4. Adjusted Governmental Fee Component = $0.25 per Ton The Adjusted PTS Organic Transfer Fee is calculated as follows: Adjusted PTS Organic Transfer Fee = $6.09 + $0.25 per Ton Adjusted PTS Organic Transfer Fee = $6.34 per Ton. E. Adjustment Schedule. The adjustment schedule shall be made in a manner equivalent to the procedures described in Section 8.04.E. 8.07 City is Most Favored Customer. The Contractor shall not charge PTS Other Fees for services substantially similar to the City’s, which are less (giving effect to any payment of any rebates revenue share or other fees of any kind to other users) than the PTS Solid Waste Fee or PTS Organic Fee regardless of the duration of the contract and waste quantities associated with the other Transfer Station Users. Furthermore, in the event Allied Waste Industries, Inc., reduces its Disposal charges to the City of Sari Diego subsequent to June 1,2001, the Contractor shall reduce the PTS Solid Waste Fee by the same amount that Allied Waste Industries, Inc., reduced its Disposal charges to the City of San Diego. In such case, the PTS Solid Waste Fee shall be adjusted by reducing the Base Component of the PTS Solid Waste Fee. 8.08 Liquidated Damages. A. Adjustment. The amount of the liquidated damages specified in Section 15.04 for specific events of the Contractor nonperformance shall be adjusted on an annual basis at the same time the PTS Solid Waste Fee is adjusted. If during an annual adjustment, the CPI changes for the annual period exceeds five (5) percent, the City will adjust the amount by five (5) percent. The first annual increase will be effective June 1,2003. Liquidated damages amounts will be adjusted to reflect one hundred (100) percent of the change in CPI using the method presented below: 70017373Vl 51 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Adjusted liquidated damage amount = Then-current liquidated damage amount x (most recent CPI value/previous 12-month CPI value) For example, assume: 1. Date of annual adjustment is June 1,2003 2. Then-current liquidated damage for vehicle turnaround reliability = $100.00 per event 3. Most recent CPI value (February 2003) = 126.1 4. Previous 12-month CPI value (February 2002) = 124.2 The adjusted liquidated damage amount is calculated as follows: Adjusted liquidated damage for vehicle turnaround reliability = $100.00 x (126.1424.2) = $101.53 per event B. Payment of Liquidated Damages. the Contractor shall pay the City liquidated damages due pursuant to procedures described in Section 12.06. 8.09 Recovered Materials Revenue. As provided in Section 3.31.D, the Contractor shall retain all revenues earned from the sale of Recovered Materials. 8.10 Payment of Governmental Fees and Processing Costs. The Contractor shall pay, when and as due, any and all Governmental Fees to the appropriate federal, State, regional, or local governmental entities which levied the fees and shall provide City with proof of such payments promptly upon request. The Contractor shall pay, when and as due, the owner of the Designated Organics Processing Facility the Processing cost due for delivery of City Source Separated Organic Materials. The obligation of the Contractor to pay the owner of the Designated Organic Processing Facility, shall be conditioned upon the Contractor receiving timely payment from the City’s Designated Solid Waste Hauler. 8.11 Payment of Taxes. The Contractor shall pay, when and as due, any and all federal, State, local fees, assessments, or taxes incurred as a result of the Contractor’s Compensation hereunder, including estimated taxes, and shall provide the City with proof of such payments promptly upon request. ARTICLE 9 CONTRACTOR’S COMPENSATION DURING SUBSEQUENT PTS OPERATING PERIOD 9.01 General. The Contractor’s Compensation for the Subsequent PTS Operating Period shall be determined in the manner set forth in this article with reference to the right of first offer provisions set forth in Section 6.08 above. During the Subsequent PTS Operating Period, the Contractor’s Compensation provided for in this Article shall be the full, entire, and complete compensation due to the Contractor pursuant to this Agreement for all labor, equipment, 7WJl7373VI 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 materials and supplies, taxes, insurance, bonds, overhead, profit, and all other things necessary to perform all the services required by this Agreement. 9.02 Service Fees. Service Fees are the per-Ton charges or per-item charges the Designated Hauler(s), Self Haulers, and other Transfer Station Users pay the Contractor for Delivery of Permitted Materials to the Transfer Station. A. City-Regulated Use Fee. During the City Use Period, the City through its contract with Designated Hauler(s), shall set and maintain residential, commercial, and other relevant collection rates levied by Designated Hauler(s) at levels and at appropriate times to adequately allow the Designated Hauler@) to pay the Contractor the City Use Fee set by this Agreement. The City’s obligation to set and maintain the City Use Fee described in this Section shall also apply in the event the City, at some future date, should decide to perform collection services itself for all or part of the City Waste. B. Contractor-Regulated Service Fees. The Contractor shall be solely responsible for setting, periodically adjusting, and regulating PTS Other Fees for Permitted Materials Delivered to the Palomar Transfer Station by Self Haulers and Persons Delivering Permitted Materials generated outside the City provided that such Service Fees are set to provide for payments to City as required in Article 12 and recognize the City as a most favored customer in accordance with Section 9.06. C. Collection of Service Fees. The Contractor is responsible for collection of all PTS Service Fees. Service Fees may be collected from Designated Hauler(s) and other Transfer Station Users at the Transfer Station scale house at the time of Delivery of Permitted Materials or the Contractor may submit monthly invoices to Transfer Station Users requesting payment for Service Fees. The Contractor shall be liable for all delinquent payments and bad debt. D. Only Compensation Due by City. City Use Fees collected from .the Designated Hauler(s) during the City Use Period are the only compensation due the Contractor from the City or its Designated Hauler@) for service provided during the Subsequent PTS Operating Period unless otherwise provided in this Agreement or agreed to by the Parties. The Contractor shall not charge City for Permitted Materials, equal to or less than 100 Tons annually, generated in the City and Delivered to the Transfer Station in City owned and operated vehicles. 9.03 City Use Fee. A. General. The initial City Use Fee includes compensation for Transfer Station services. The City Use Fee is divided into two components: the Base Component and Governmental Fee Component. The elements of the City Use Fee are described below. The City Use Fee shall be effective during the City Use Period during the Subsequent PTS Operating Period. The periodic adjustment process for the City Use Fee is presented in Sections 9.04 and 9.05. B. Base Component. The initial Base Component is that portion of City Use Fee comprised of the Contractor’s fixed and variable costs and equals six dollars ($6.00) per Ton. The Base Component shall be adjusted annually during the Subsequent PTS Operating Period to reflect the change in the CPI values as specified in Sections 9.04.B and 9.05.B, but will not 70017373v1 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 otherwise be adjusted except as the result of a modification to the scope of services as provided in Section 16.15. C. Governmental Fee Component. The Governmental Fee Component is that portion of the City Use Fee comprised of the Contractor’s Governmental Fees. The Governmental Fee Component is subject to adjustment only as necessary to reflect changes in Governmental Fees required by third parties as provided in Sections 9.04.C and 9.05.C. 9.04 Initial Adjustment of City Use Fee. A. General. The intent of this Agreement is to provide for an initial adjustment to the City Use Fee (the use fee that will be in effect at the beginning of the City Use Period) in accordance with this Section and an annual adjustment of the City Use Fee thereafter in accordance with Section 9.05. The initial adjustment will reflect changes in the value of CPI from the Effective Date of the Agreement to the commencement date of the City Use Period and the effect of such changes on the Base Component of the City Use Fee and changes in Governmental Fees. B. Base Component Initial Adjustment. The initial change to the Base Component of the City Use Fee will be calculated using the value of the then most recently published CPI and the value of the CPI when the Effective Date occurred. The specific adjustments shall be rounded to the nearest cent per Ton. The adjustment to the Base Component shall be made as follows: Adjusted City Use Fee Base Component = Base Component of the City Use Fee x (then most recent CPI valudthe value of the CPI when the Effective Date occurred). For example, assume: 1. The commencement date ofthe City Use Period is June 1,2015 2. The Effective Date is June 1,2002 3. The Base Component of the City Use Fee as previously adjusted for CPI from the Effective Date to the City Use Period commencement date = $6.00 per Ton 4. Most recent CPI (February 2015) = 172.6 5. CPI for the month when the Effective Date occurred (June 2002) = 124.2 The Adjusted Base Component of the City Use Fee is calculated as follows: Adjusted City Use Fee Base Component = $6.00 x (172.6A24.2) = $8.34 per Ton For any year in which the average annual CPI change during the period between the Effective Date and the commencement date of the City Use Period exceeds five (5) percent, the City will adjust the Base Component of the City Use Fee five (5) percent annually. 70017373v1 54 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 29 30 31 C. Governmental Fee Component Adjustment. The Governmental Fee Component of the City Use Fee shall be adjusted in the same manner described in Section 8.04.C to reflect all changes to the applicable Governmental Fees since the Effective Date. D. Adjusted City Use Fee. The adjusted City Use Fee shall be calculated as follows: Adjusted City Use Fee = (Adjusted Base Component + Adjusted Governmental Fee Component) For example, assume: 1. Date of commencement of the City Use Period is June 1,2015 2. Effective Date is June 1,2002 3. Adjusted City Use Fee Base = $8.34per Ton 4. The then-current Governmental Fee Component = $0.25 per Ton The Adjusted City Use Fee is calculated as follows: Adjusted City Use Fee = $8.34+ $0.25 Adjusted City Use Fee = $8.59 per Ton. E. Adjustment Schedule. The adjustment schedule shall be made in a manner equivalent to the procedures described in Section 8.04.E with the exception that the Contractor shall submit to the City its calculation of the adjusted City Use Fee no later than ninety (90) calendar days prior to the anniversary date of the City Use Period. 9.05 Annual Adjustment of City Use Fee. A. General. The intent of this Agreement is to provide for an annual adjustment to the City Use Fee during the City Use Period. The annual adjustment of the City Use Fee shall be effective on the annual anniversary date of the commencement date of the City Use Period. The annual adjustment will reflect changes in the value of the CPI and the effect of such changes on the Base Component of the City Use Fee and changes in Governmental Fees. B. Base Component Annual Adjustment. The annual change to the Base Component of the City Use Fee will be calculated using the value of the then most recently published CPI and the value of the CPI which is twelve (12) months prior to the most recently published CPI (previous 12-month CPI value). The specific adjustments shall be rounded to the nearest cent per Ton. The adjustment to the Base Component shall be made as follows: Adjusted City Use Fee Base Component = Base Component of the City Use Fee x (then most recent CPI valudprevious 12-month CPI value) 70017373Vl 55 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 For example, assume: 1. The commencement date of the City Use Period is June 1,201 5 2. The first annual adjustment shall occur on the first anniversary date =June 1,2016 3. The then-current Base Component of the City Use Fee = $8.34 per Ton 4. Most recent CPI value (February 2016) = 177.8 5. Previous 12-month CPI value (February 2015) = 172.6 The Adjusted Base Component is calculated as follows: Adjusted City Use Fee Base Component = $8.34 x (177.8/172.6) = $8.59 per Ton If during the annual adjustment, the CPI change for the annual period exceeds five (5) percent, the City will adjust the Base Component of the City Use Fee five (5) percent. C. Governmental Fee Component Annual Adjustment. Adjustments to the Governmental Fee Component shall be made following the procedures described in Section 8.04.C., except that no Governmental Fees are included in the initial City Use Fee and only Governmental Fees applied specifically to the Transfer of Solid Waste after the Effective Date will be considered. D. Adjusted City Use Fee. The adjusted City Use Fee shall be calculated as follows: Adjusted City Use Fee = Adjusted City Use Fee Base Component + Adjusted Governmental Fee Component E. Adjustment Schedule. The adjustment schedule shall be made in a manner equivalent to the procedures described in Section 8.04.E with the exception that the Contractor shall submit to the City its calculation of the adjusted City Use Fee no later than ninety (90) calendar days prior to the anniversary date of the City Use Period. 9.06 City is Most Favored Customer. The Contractor shall not charge PTS User Service Fees for services substantially similar to the City’s relating to the Acceptance, Transfer and Disposal of Solid Waste, which are less (giving effect to the payment of any rebates, revenue share or other fees of any kind to the other users) than the City Use Fee (which the Contractor shall have the right to reduce in order to effect compliance with this Section at any time and from time to time) regardless of the duration of the contract and waste quantities associated with the other Palomar Transfer Station Users. Provided, City shall be entitled to the “most favored customer” benefit hereunder only so long as Waste is directed by City to be disposed in a Designated Landfill owned by the Contractor or its Affiliates. 70017373v1 56 1 9.07 Liquidated Damages. A. Adjustment. The amount of the liquidated damages specified in Section 15.03 for specific events of Contractor nonperformance shall be adjusted at the same time the City Use Fee is adjusted. Liquidated damages amounts will be adjusted to reflect one hundred (100) percent of the change in the value of the CPI (except as otherwise provided below) using the method presented below: Initial adjustment to liquidated damages = Liquidated damage amount Effective June 1, 2002 x (most recent value of the CPVthe value of the CPI when the Effective Date occurred) Annual adjustment to liquidated damages = Then-current liquidated damage x (most recent CPI value/previous 12-month CPI value) If during an annual adjustment, the CPI change for an annual period exceeds five (5) percent, the City shall adjust the amount by only five (5) percent. B. Payment of Liquidated Damages. The Contractor shall pay the City liquidated damages due pursuant to procedures described in Section 12.06. 9.08 Recovered Materials Revenue. As provided in Section 3.31.D, the Contractor shall retain all revenues earned from the sale of Recovered Materials. 9.09 Payment of Governmental Fees. The Contractor shall pay, when and as due, any and all Governmental Fees to the appropriate federal, State, regional, or local governmental entities which levied the fees and shall provide City with proof of such payments promptly upon request. 9.10 Payment of Taxes. The Contractor shall pay, when and as due, any and all federal, State, local fees, assessments, or taxes incurred as a result of the Contractor’s Compensation hereunder, including estimated taxes, and shall provide City with proof of such payments promptly upon request. ARTICLE 10 CONTRACTOR’S COMPENSATION DURING CTS CONTRACTOR OPERATING PERIOD 10.01 General. The Contractor’s compensation during the CTS Operating period shall be subject to negotiation, if and when the City, at its sole discretion, elects to develop the CTS. ARTICLE 11 CONTRACTOR PAYMENT TO CITY DURING CTS MARKETING PERIOD 11.01 General. The Contractor’s payment to the City during CTS Marketing Period shall be subject to negotiation, if and when City, at its sole discretion, elects to develop the CTS. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 ~~ 57 70017373Vl ARTICLE 12 PAYMENTS TO THE CITY 12.01 General. It is the intent of this Article to specify all payments the Contractor shall make to the City including the Waste Processing Fee, Franchise Fee, Transfer Station Lease Payment, liquidated damages, and avoided Disposal costs with the exception of Contractor Use Fee and Contractor Capacity Fee payments which are described in Article 11. 12.02 Monthly Payment Due to the City. A. Amount Due to City during the PTS Operating Period and CTS Contractor Operating Period. The Contractor shall pay the City monthly the sum of the Waste Processing Fee, Franchise Fee, Transfer Station Lease Payment, liquidated damages, and avoided disposal costs. Calculation of such amount due to City shall be clearly presented to City following procedures described in Sections 12.03 through 12.07, and shall be supported with appropriate documentation. B. Contractor Remittance Requirements. The Contractor shall remit to the City monthly via wire transfer all monies due to the City for the previous monthly period as calculated in accordance with this Section. Payments shall be due on or before the last day of each month. In the event the Contractor fails to pay the City in a timely manner, the Contractor will be required to pay a late payment for each day the payment is due in the amount of two tenths percent (0.2%) of the amount due. The remittance shall be accompanied by a monthly report. The monthly report shall itemize the amount due to the City separately for Waste Processing Fees, Franchise Fees, Transfer Station Lease Payment, and liquidated damages, and shall provide supporting documentation to allow the City to verify the validity and accuracy of the fees. 12.03 Waste Processing Fee. A Waste Processing Fee for each Ton of Permided Material accepted at the Transfer Station shall be due the City monthly during the PTS Operating Period and CTS Contractor Operating Period. As of the Execution Date, the Waste Processing Fee shall be equal to two dollars and fifty cents ($2.50) per Ton. The Contractor’s monthly remittance report to the City shall document the calculation of the Waste Processing Fees due to the City based on the Tonnage of material Accepted at the Transfer Station from Persons Delivering Solid Waste, Recyclable Materials, and Organic Materials. The City reserves the right to adjust the amount of the Waste Processing Fee during the Term of this Agreement provided that in such event, the City shall give Notice to the Contractor of any change in the Waste Processing Fee no later than thirty (90) calendar days prior to the effective date of the new Waste Processing Fee and shall adjust the PTS Service Fees and CTS Service Fees, if appropriate to reflect a change in the Waste Processing Fee. 12.04 Franchise Fee. As an alternative to the Waste Processing Fee, the City may, upon not less than ninety (90) days prior written notice to the Contractor, establish a Franchise Fee. The Franchise Fee shall be the amount due the City by the Contractor on all PTS Service Fees or CTS Service Fees collected during the PTS Operating Period and CTS Contractor Operating Period and shall be the basis for an adjustment to the applicable Service Fees to the extent the full 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 70017373V1 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 amount of the Franchise Fee is greater than the then-existing Waste Processing Fee. As of the Execution Date, the Franchise Fee shall be zero percent (OYO) of the PTS Services Fees or CTS Service Fees. The Contractor’s monthly remittance report to the City shall document the calculation of the Franchise Fee due to the City. The calculation of the Franchise Fee shall be based on the PTS Services Fees or CTS Service Fees collected during the monthly period. The City reserves the right to change the amount of the Franchise Fee at any time over the Term provided that in such event, the City shall give Notice to the Contractor of any change in the Franchise Fee no later than thirty (90) calendar days prior to the effective date of the new Franchise Fee and shall adjust the PTS Service Fees and CTS Service Fees, if appropriate to reflect a change in the Franchise Fee. 12.05 Transfer Station Lease Payment. The Contractor shall pay the City monthly the Transfer Station Lease Payment for its use of the Palomar Transfer Station during the PTS Operating Period and for use of the City Transfer Station during the CTS Contractor Operating Period. During the PTS Operating Period, the monthly Transfer Station lease payment shall be equal to one dollar ($1.00). During the CTS Contractor Operating Period, the monthly Transfer Station lease payment shall be equal to one dollar ($1.00). In the event the Contractor occupies both the Palomar Transfer Station and the City Transfer Station during the same monthly period, the Transfer Station lease payment shall be the sum of the Palomar Transfer Station lease payment and the City Transfer Station lease payment. In the event the Contractor’s lease of either the Palomar Transfer Station or City Transfer Station is in effect for a portion of the monthly period, the Transfer Station lease payment shall be calculated as the monthly lease payment multiplied by the number of days in the monthly period for which the lease is in effect divided by the total days in the monthly period. 24 12.06 Liquidated Damages. The Contractor shall submit to the City any liquidated damages 25 assessed pursuant to the Agreement. If the Contractor disputes any amount of liquidated damages 26 pursuant hereto, it shall nevertheless pay the undisputed amount and the disputed amount shall 27 be addressed through the dispute resolution procedure of Section 16.14. The Contractor’s 28 monthly remittance report to the City shall clearly identify the number and nature of the 29 liquidated damages assessed during the monthly period and the amount of damages due to the 30 City. 31 32 33 34 35 36 37 38 39 40 12.07 Avoided Disposal Costs. The Contractor shall pay the City fifty percent (50%) of any Disposal costs avoided if the monthly Tonnage of City Waste Diverted exceeds ten (10) percent of the monthly Tonnage of City Waste Accepted. The avoided Disposal costs due to the City shall be calculated as follows: Disposal Fee multiplied by one half (0.50) multiplied by monthly Tons of City Waste Diverted minus (one tenth (0.1) multiplied by monthly Tons of City Waste Accepted)). The Contractor’s remittance report to the City shall document the calculation of the avoided Disposal costs based on the Tonnage of Solid Waste Accepted at the Transfer Station and Diverted. ARTICLE 13 CONTRACTOR RECORD KEEPING AND REPORTING 41 13.01 General. As required in this Section, the Contractor shall be responsible for 42 documenting specific information related to Transfer Station, Transport, and Disposal services 70017373Vl 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 and preparing and submitting reports to the City on a quarterly and annual basis. The Contractor’s failure to provide reports shall result in liquidated damages described in Section 15.04. The City reserves the right to modify or delete any of the reporting requirements outlined in this Article, or to require that the Contractor supply other data and reports as are reasonably requested by the City; provide, however, the City shall exercise such rights in a manner consistent with the intent of the existing provisions of this Article 13. The receipt of this information by the City does not reduce or amend in any way the Contractor’s obligations and liabilities under this Agreement or assigned the Contractor under Applicable Law. Records shall be maintained in forms and by methods that facilitate flexible use of data contained in them to structure reports, as needed. Reports are intended to compile recorded data into useful forms of information that can be used to, among other things: A. Determine PTS and CTS Service Fees and evaluate the financial efficiency of operations; B. Evaluate past and expected progress towards achieving AB 939 and City goals and objectives; C. Determine needs for program adjustments; D. Evaluate customer service and complaints; and. E. Determine Contractor compliance with its obligations under this Agreement. 13.02 Report Format and Submittal Requirements. A. Format. Either the City or the Contractor may propose report formats that are responsive to the objectives of and audiences for each report. The format of each report shall be approved by the City. City agrees to approve as to format Tonnage-related information contained in reports to regulatory agencies. The Contractor agrees to submit all reports on computer discs or by modem in a format compatible with the City’s software and computers at no additional charge, if requested by the City. The Contractor will provide a certification statement, under penalty or perjury, by the responsible Contractor official, that the report being submitted is true and correct to the best knowledge of such official. B. Submittal Schedule. Quarterly reports shall be submitted no later than fifteen (15) calendar days after the end of the calendar quarter. Annual reports shall be submitted no later than forty-five (45) calendar days after the end of the calendar year. C. Submittal Addresses. All reports shall be submitted to: If to the City: City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 lM)11373VI 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 If to the Contractor: General Manager Palomar Transfer Station, Inc. 8364 Clairemont Mesa Blvd. San Diego, CA 921 11 13.03 City Review and Inspection of Records. Upon twenty-four (24) hours’ prior written notice, the City, and its agents, shall have the right, during regular business hours, to conduct on- site inspections of the records and accounting systems of the Contractor and to make copies of documents relevant to this Agreement, provided that upon arrival at the Premises, the City or its designated representative shall immediately contact the Facility/Site manager or hidher designee. The City reserves the right to request an independent review of the Contractor’s operational and financial records solely with respect to calculation of Waste Processing Fees or Franchise Fees if applicable, and to verify the Contractor’s compliance with Sections 3.30.F piversion), 3.31.C (Marketing Records), and 8.07 and 9.06 above (Most Favored Customer), provided that the City or its agents use Reasonable Business Efforts to hold information obtained or reviewed as confidential. The Contractor shall reimburse the City for any expenses incurred in performing the independent review except costs associated with City staff time, unless each such review does not result in an adjustment favorable to the City and/or a reduction in fees paid by City, in each case, equal to or greater than $10,000. In the event the City submits a written request to the Contractor for certain records, the Contractor shall deliver requested records to the City within fourteen (14) calendar days of receipt of such request. In the event the Contractor discontinues providing services to the City, the Contractor shall provide all records of all services requested to the City within thirty (30) days of discontinuing service. Any and all records provided to the City shall be in a chronological and organized form, and readily and easily interpreted. 13.04 Record Retention. The Contractor shall maintain records of all Solid Waste, Recyclable Materials and Organic Materials for the Term of this Agreement for each year of the Term and for three (3) years beyond the expiration or termination of this Agreement. At the end of the required retention period, City reserves the right to obtain copies reproduced, at the Contractor’s expense, of records including, but not limited to, the following: Records and data required to be maintained that are specifically directed to be retained shall be retrieved by the Contractor and made available to the City. Records and data required to be maintained that are not specifically directed to be retained that are, in the sole opinion of the City, material to the rate review or to a determination of the Contractor’s performance under this Agreement, shall be retrieved by the Contractor and made available to the City. Records and data required to be maintained that are not specifically directed to be retained and that are not material to a rate review and/or not required for the determination of Contractor’s performance do not need to be retrieved by the Contractor. In such a case, however, the City lW11373V1 61 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 may make reasonable assumptions regarding what information is contained in such records and data, and such assumption shall be conclusive in whatever action the City takes. 13.05 Quarterly Report Requirements. The information listed in this Section shall be the minimum information reported by the Contractor to City on a calendar quarterly basis. A. Transfer Station Services. 1. Solid Waste Accepted at the Transfer Station, in Tons listed by City, Designated Hauler (by type of vehicle), Self Haulers, and other Transfer Station Users. 2. Solid Waste Transported and Disposed at Designated Landfill(s) or other disposal facilities, in Tons listed separately for each Designated Landfill or disposal facility. 3. Verification of the Contractor’s compliance with the “most favored customer” provisions of Sections 8.07 and 9.06 above, as applicable. 4. Other information or reports that the City may reasonably request or require not inconsistent with the provisions of Section 13.03 above. B. Recyclable Materials and Organic Materials Services. 1. Recyclable Materials and Organic Materials (listed separately) Accepted at the Transfer Station, in Tons listed by City, Designated Hauler (by type of vehicle), Self Haulers, and other Transfer Station Users. 2. Calculation of the percentage of Recyclable Materials and Organic Materials Diverted from the total quantity of Solid Waste Accepted at the Transfer Station. C. Other Programs. For other programs, if any, provide activity-related and narrative reports on goals, milestones, and accomplishments. The Contractor shall describe problems encountered, actions taken and any recommendations to facilitate progress. 13.06 Annual Report Requirements. A. Report Submittals. The Contractor shall submit the following reports annually: 1. A summary report in the form of the quarterly reports and shall provide the same type of information as required pursuant to Section 13.05, summarized for the preceding four quarters. 2. If the Contractor has at any time during the previous year failed to comply with the Contractor obligations resulting in liquidated damages, the annual report shall also include the amount of any damage calculated pursuant to Section 15.04 and previously paid to the City, or owed by the Contractor to the City. B. Accounting Records. The Contractor shall maintain accurate and complete accounting records for purposes of compliance with the requirements of Section 13.03 above. The accounting records shall be prepared in accordance with the Contractor’s usual and customary 70017373Vl 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 policies and practices for same. The Contractor shall make such information available to the City or its agent to review in accordance with Section 13.03. 13.07 CERCLA Defense Records. The City views the ability to defend against CERCLA and related litigation as a matter of great importance. For this reason, the City regards the ability to prove where Solid Waste Collected in the City was taken for Transfer or Disposal, as well as where it was not taken, to be matters of significant importance. Therefore, the Contractor shall maintain data retention and preservation systems that can establish where Solid Waste was Transferred and Disposed of (and therefore establish where it was not landfilled). This provision shall survive the expiration of the Term of this Agreement for ten (10) years; such records shall be provided upon request of the City in a chronological and organized form and indexed manner and then tumed over to the City ten (10) years after the expiration of the Term of this Agreement or termination of this Agreement. 13.08’ Other Records. In addition to the reports and records required under Sections 13.01 through 13.07, at a minimum, the Contractor shall maintain records whose format and content have been approved by the City relating to: Character, weight and volume of Solid Waste, Recyclable Materials (by type) and Organic Materials separately for City, Designated Haulers, Self Haulers, and other Transfer Station Users either through a direct or allocated method approved by the City. A. Facilities, equipment and personnel used; B. Facilities and equipment operations, maintenance and repair performed, C. Processing and Disposal of Solid Waste, Processing and Marketing of Recyclable Materials; and Processing and Marketing of Organic Materials; D. Incidence of accidents involving either employees or patrons of the Facilities; E. Documentation of Hazardous Substance quantities handled and method of disposition and the number and nature of any Hazardous Substance spills; and, F. Customer complaints including the date of complaint, nature of complaint, resolution of complaint. 13.09 Adverse Information. A. Reporting Adverse Information. The Contractor shall provide the City two (2) copies (one to the City Manager, one to the City Attorney) of all reports, pleadings, applications, notifications, Notices of Violation, communications or other material relating specifically to the Contractor’s failure to meet the requirements of this Agreement as the same relates to the Contractor’s of performance of services pursuant to this Agreement, submitted by the Contractor to, or received by the Contractor from, the United States or California Environmental Protection Agency, the California Integrated Waste Management Board, the Securities and Exchange Commission or any other federal, state or local agency, including any federal or state court. The Contractor shall also notify the City of any criminal charges for violation of any federal or state 7W17373VI 63 1 environmental law or antitrust law or for fraud or similar matters initiated hereafter against any 2 management employee of the Contractor or its Affiliates, that have direct or indirect 3 responsibility for administration of the Contractor’s performance of services under this 4 Agreement. Copies shall be submitted to the City simultaneously with the Contractor’s filing or 5 submission of such matters with said agencies. The Contractor’s routine correspondence to said 6 agencies need not be routinely submitted to the City, but shall be made available to the City 7 promptly upon the City’s written request. 8 B. Failure to Report. The refusal or unexcused failure of the Contractor to file any 9 required reports, or to provide required information to the City, or the inclusion of any materially 10 false or misleading statement or representation by the Contractor in such report shall be deemed 11 a material breach of this Agreement, and shall subject the Contractor to all remedies available to 12 the City, after sixty (60) days and notification to the Contractor by the City of the selected 13 remedy, under this Agreement or otherwise. 14 15 16 17 18 19 20 21 22 23 13.10 City’s Right to Local Enforcement Agency Reports. The Parties acknowledge that the Contractor must generate and deliver to the Local Enforcement Agency (“LEA”), periodic reports pertaining to the Recycling, Diversion, and Disposal of Solid Waste related to the Transfer Station operation and Designated Landfill operations and may correspond with the LEA from time to time. The Contractor waives any restrictions, which may prevent the City from obtaining copies of such reports and correspondence directly from the LEA and shall not object to any request by the City to obtain such reports and correspondence. Furthermore, the Contractor shall provide the City with a copy of each report, including any reports of the Contractor’s rejection of delivered material, submitted to the LEA at the same time the report is submitted to the LEA. 24 13.11 Meet and Confer with City. Beginning on the Effective Date of the Agreement, and 25 then on a quarterly basis thereafter, City may meet with the Contractor to discuss the 26 Contractor’s performance of Transfer Station; Transport and Disposal services and any Diversion 27 programs. 28 29 30 14.01 Indemnification. ARTICLE 14 INDEMNITY, INSURANCE AND BOND 31 32 33 34 35 36 37 38 A. General Indemnification. The Contractor shall defend, with counsel reasonably acceptable to City, indemnify, and hold harmless, at the Contractor’s sole cost and expense, the City Parties from and against any Claim arising out of or occasioned in any way by, directly or indirectly, the Contractor’s performance of, or its failure to perform, its obligations under the Agreement, including the Contractor’s failure to comply with Applicable Law or the Contractor’s breach of its representation and warranties in this Agreement. This provision is in addition to all other provisions in this Agreement and is intended to survive early termination or expiration of this Agreement. 39 B. Hazardous Substance Indemnification. The Contractor shall defend, with counsel 40 reasonably acceptable to City, indemnify, protect and hold harmless the City from and against all 70017373V1 64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 Claims, damages (including but not limited to special, consequential, natural resources and punitive damages), injuries, costs (including without limit any and all response, remediation and removal costs), losses, demands, debts, liens, liabilities, causes of action, suits, legal or administrative proceedings, interest, fines, charges, penalties, and expenses (including without limit attorneys’ expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity), (collectively, “Damages”) of any kind whatsoever paid, incurred or suffered by, or asserted against, City Parties arising from or attributable to the acts or omissions of the Contractor, its officers, directors, employees, companies or agents, whether or not negligent or otherwise culpable, in connection with or related to the performance of this Agreement, including without limit damages arising from or attributable to any operations, repair, clean-up or detoxification, or preparation and implementation of any removal, remedial action, response, Closure, Post-Closure or other plan (regardless of whether undertaken due to governmental action) concerning any Hazardous Substance, Hazardous Waste, andor construction and street debris, or other waste handled under this Agreement. This indemnity afforded a particular City Party, shall only be limited to exclude coverage for intentional wrongful acts and negligence of that City Party, delivery of Solid Waste, Recyclable Materials, or Organic Materials by one or more City Party which does not conform to the descriptions of materials to be provided to the Contractor under this Agreement (unless such non-conforming waste is received in an intentional or negligent manner) and as provided below. The forgoing indemnity is intended to operate as an agreement recognizing the provisions of § 107(e) of the Comprehensive Environmental Response, Compensation and Liability Act, CERCLA, 42 USC. §9607(e) and California Health and Safety Code Provisions, and establishing the Contractor’s contractual obligations to defend, protect, hold harmless, and indemnify City Parties from Claims, damages and losses. This provision is in addition to all other provisions in this Agreement and is intended to survive the early termination or expiration of this Agreement. Nothing in this paragraph shall prevent the Contractor from seeking indemnification or contribution from persons or entities other than indemnities, for any liabilities incurred by the Contractor, or the City Parties. As appropriate, Guarantor’s Guaranty Agreement shall extend to the indemnification obligation hereunder. 14.02 Insurance. A. Types and Amounts of Coverage. The Contractor shall procure from an insurance company or companies, which shall conform to the qualification described in Section 14.02.B, and maintain in force at all time during the Term the following types and amounts of insurance: 1. Workers’ Compensation. The Contractor shall maintain workers’ compensation insurance covering its employees in statutory amounts and otherwise in compliance with the laws of the State of California. 2. Employer’s Liability. The Contractor shall maintain employer’s liability insurance in an amount not less than one million dollars ($1,000,000) per accident or disease. 3. Commercial General Liability; Automobile Liability. The Contractor shall maintain policies of commercial general liability insurance and automobile liability insurance with a combined single limit of not less than ten million dollars ($10,000,000) per occurrence covering all Claims and all legal liability for personal injury, bodily injury, death and property damage, 70017373v1 65 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 including the loss of use thereof, arising out of, or occasioned in any way by, directly or indirectly, the Contractor’s performance of, or its failure to perform, services under this Agreement. The insurance required by this subsection shall include: a. Premises operations; b. Independent Contractor’s protective; c. Products and completed operations; d. Broad form blanket contractual with no exclusions for bodily injury, personal injury or property damage; e. Broad form property damage, including completed operations. 4. Environmental Impairment Liability. The Contractor shall maintain environmental ihpairment liability insurance in the amount of Ten Million Dollars ($10,000,000) covering bodily injury, property damage and cleanup coverage, on and off-site arising from pollution or contamination or both conditions at, on or emanating from the Transfer Station. Such policy shall be on a site specific form and include non-owned disposal site coverage for the Designated Landfills. Unless such coverage is not provided under other policies required to be maintained by the Contractor under this Article 14, the Contractor shall maintain a policy of Contractor’s Pollution Liability, including coverage for bodily injury, property damage and cleanup arising from the transportation of Waste on the Contractor’s vehicles. The City shall be named as an additional insured on such policy. B. Acceptability of Insurers. The insurance policies required by this Section shall be issued by an insurance company or companies admitted to do business in the State of California subject to the authority of the California Insurance Commission and with a rating in the most recent edition of Best’s Insurance Reports of size category VI1 or larger and a rating classification of A or better. C. Other Insurance Provisions. The policies specified below are to contain, or be endorsed to contain, the following provisions: 1. Workers’ Compensation and Employer’s Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its officials, employees and volunteers for losses arising from work performed by the Contractor for the City. 2. Commercial General Liability; Automobile Liability Coverage. a. The City, its officers, Directors, employees, volunteers, and agents are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of the Contractor; completed operations of the Contractor; premises leased or used by the Contractor; and automobiles owned, leased, hired, or borrowed by the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officials, employees, or agents. b. The Contractor’s insurance coverage shall be primary insurance as respects; the City, officials, employees, and agents. Any insurance or self-insurance maintained by the City, its officials, employees or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it. c. Any failure to comply with the reporting provisions of the policies shall not affect coverage provided to the City, officials, employees and agents. d. Coverage shall state that the Contractor’s insurance shall apply separately to each insured against whom Claim is made or suit is brought except with respect to the limits of the insurer’s liability. D. Required Endorsements. The policies shall contain endorsements in substantially the following form: 1. Workers’ Compensation and Employer’s Liability: a. “Thirty (30) days’ written notice shall be given to the Assistant City Manager of the City in the event of cancellation.” b. “Insurer waives all right of subrogation against the City, and its officials, employees, volunteers, and agents for losses arising from work performed by the Contractor for the City. 2. Commercial General Liability (Including Automobile Liability). a. “Thirty (30) days’ written notice shall be given by certified mail; return receipt requested, to the Assistant City Manager of the City in the event of cancellation, reduction in coverage, or non-renewal of this policy.” b. “The City, its officers, employees, volunteers and agents are additional insureds on this policy.” c. “This policy shall be considered primary insurance as respects any other valid and collective insurance maintained by the City, including any self-insured retention or program of self-insurance, and any other such insurance shall be considered excess insurance only.” d. “Inclusion of the City as an additional insured shall not affect the City’s rights as respects any Claim, demand, suit or judgment brought or recovered against the Contractor. This policy shall protect the Contractor and the City in the same manner as though a separate policy had been issued to each, but this policy shall not operate to increase the insurance company’s liability as set forth in the policy beyond the amount shown or to which the insurance company would have been liable if only one party had been name as an insured.” 70017373V1 67 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 E. Delivery of Proof of Coverage. Prior to the Effective Date, the Contractor shall furnish the City with certificates of each policy of insurance required hereunder. Such certificates shall show the type and amount of coverage, effective dates, and dates of expiration of policies, and shall be accompanied by copies of all required endorsements. The certificates and endorsements for each policy are to be signed by a person authorized by the insurer to bind coverage on its behalf. The Contractor shall periodically fiunish renewal certificates to the Assistant City Manager of the City to demonstrate maintenance of the required coverage throughout the Term. F. Other Insurance Requirements. 1. In the event any services required by this Agreement are delegated to a subcontractor, insurance required by the Contractor in Section 14.02 shall cover all subcontractors or the subcontractors must furnish evidence that its insurance meets the requirements of Section 14.02. 2. The Contractor shall comply with all requirements of the insurers policies. The carrying of insurance shall not relieve the Contractor from any obligation under this Agreement, including those imposed by Section 14.01. If any Claim is made by any third party against the Contractor or a subcontractor on account of any occurrence related to this Agreement, the Contractor shall promptly report the facts.in writing to the insurance carrier. 3. If the Contractor fails to procure and maintain any insurance required by this Agreement, the City may take out and maintain, at the Contractor’s expense, such insurance as the Contractor has failed to maintain in accordance with the limits set forth herein. The Contractor shall reimburse the City for the cost of such insurance within thirty (30) days of being invoiced by the City for such costs. 4. The Commercial General Liability insurance required by Section 14.02.A.3 shall be written on an occurrence rather than a “Claims made” basis. If it is not obtainable, the Contractor shall notify the City and arrange for “tail coverage” to protect the City from Claims filed during the three (3) years immediately following the expiration or termination of this Agreement relating to incidents that occurred prior to such expiration or termination. 14.03 Faithful Performance Bond. Subject to Section 14.04 below, the Contractor shall file with the City a bond securing the Co.ntractor’s faithful performance of its obligations under this Agreement and shall maintain such bond on an annual basis throughout the Term of this Agreement as evidenced by a continuation certificate. The form of the bond shall be reasonably acceptable to the City. The principal sum of the bond shall be $2,500,000. The performance bond required by this Section shall be issued by a bonding company or companies authorized to do business in the State of California and with a rating in the most recent edition of Best’s Insurance Reports of size category VI1 or larger and a rating classification of A or better. 14.04 Security Interest in Lieu of Bond. In lieu of filing the performance bond with the City under Section 14.03 above, the Contractor may grant the City a first-priority security interest in all of the Contractor’s accounts, chattel paper, inventory, equipment, instruments (including promissory notes), investment property, documents, deposit accounts, letter-of-credit rights, general intangibles, supporting 7CQ17373Vl 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26- 27 28 29 30 31 32 33 34 35 36 37 38 obligations, and proceeds and products of the foregoing (collectively referred to as “Collateral”) to secure performance of the Contractor’s obligations under this Agreement. The Contractor authorizes the City to file a financing statement, substantially in the form of the attached Schedule 14.04, with the appropriate government offices describing the Collateral. Prior to this Agreement taking effect, the Contractor will provide the City with a certified report from the Secretary of State of California and the Secretary of State of the State in which the Contractor is incorporated, if different than California, indicating the City’s security interest granted hereunder as and when properly filed is senior in priority to all other security interests or other interests in the Collateral as reflected in the report. The Contractor will further assist the City as necessary during the Term of this Agreement in obtaining such control with respect to Collateral consisting of deposit accounts, investment property, letter-of-credit rights and electronic chattel paper as is reasonable required under the California Commercial Code to perfect the City’s interest in the Collateral. In addition, the Contractor will not create any chattel paper without placing a legend on the chattel paper acceptable to the City indicating the City has a secured interest in the chattel paper as contemplated under this Agreement. Upon the Contractor’s default on any of the terms and conditions of agreement der expiration of applicable cure periods, City has the right, in addition to any other rights and remedies available under the law, to take possession of the Collateral without demand and without legal process and to operate and maintain the City Transfer Station (or engage the services of another Person to operate and maintain it). Upon the City’s demand, the Contractor will assemble within the geographical boundaries of the City of Carlsbad and make the Collateral available to the City as the City directs. The Contractor grants the City the right, for this purpose, to enter into or on any Premises where the Collateral may be located. Upon termination or expiration of this Agreement, provided the Contractor has fully performed and satisfied all outstanding obligations owed to the City under this Agreement, the City shall promptly upon request of the Contractor execute and deliver a release of the security interests granted hereunder in a form legally sufficient to remove and relinquish such security interest in the Collateral. 14.05 Extent of Coverage. The Contractor’s indemnification and insurance coverage provided for in this Article shall address all the Contractor’s obligations under this Agreement including those obligations related to Transfer Station, Transport and Designated Landfill services. 14.06 Exclusion from Indemnity Obligation. Notwithstanding anything contained in this Agreement to the contrary (including, but not limited to, this Article 14), in no event shall the Contractor be obligated to indemnify, defend, insure or hold the City or the City Parties harmless for any Claims or other liability to the extent resulting from the sole negligence or intentional misconduct of the City or the City Parties. The exclusions set forth in this Section 14.05 shall apply with equal force to the insurance requirements set forth in Sections 14.02.A and 14.02.C set forth above. 70017373v1 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 ARTICLE 15 DEFAULT BY CONTRACTOR 15.01 Events of Default. All provisions of this Agreement to be performed by the Contractor are considered material. Notwithstanding anythmg to the contrary herein, to the extent an event of default under this Agreement arises from the actions of any employee or agent of the Contractor in contravention of stated policies and procedures of the Contractor, the Contractor may cure such default by termination or reassignment of such employee or agent from any duties of performance under this Agreement and provided contractor promptly undertakes, and prosecutes to completion, remediation, to the City's reasonable satisfaction, of all damages arising from such actions of such employees or agents. A. Fraud or Deceit. The Contractor practices, or attempts to practice, any fraud or deceit upon the City. B. [Intentionally Omitted] C. Failure to Maintain Coverage. The Contractor fails to provide or maintain in full force and affect the Workers' Compensation, liability, indemnification coverage or faithful performance bond as required by this Agreement. D. Violations of Regulation. The Contractor violates any material orders or filings of any regulatory body having authority over the Contractor relative to this Agreement, provided that the Contractor may contest any such orders or filings by appropriate proceedings conducted in good faith, in which case no default of the Agreement shall be deemed to have occurred. E. . Failure to Perform. The Contractor ceases to provide Transfer, Transport or Disposal services as required under this Agreement for a period of two (2) consecutive days or more, for any reason within the control of the Contractor, including, but not limited to, labor dispute or labor unrest including strike, work stoppage or slowdown, sick-out, picketing, or other concerted job action; the Contractor fails to complete capital improvement projects in accordance with the capital improvement project schedule; or the Contractor fails to perform any of its obligations in accordance with provisions of this Agreement. F. Acts or Omissions. Any other act or omission by the Contractor which violates the terms, conditions, or requirements of this Agreement, the California Integrated Waste Management Act, as it may be amended from time to time, or any law, statute, ordinance, order, directive, rule, or regulation issued thereunder and which is not corrected or remedied within thirty (30) calendar days of the written notice of the violation or, if the Contractor cannot reasonably correct or remedy the breach within the time set forth in such notice, if the Contractor should fail to commence to correct or remedy such violation within the time set forth in such notice and diligently effect such correction or remedy thereafter. G. False or Misleading Statements. Any material representation or disclosure made to the City by the Contractor in connection with or as an inducement to entering into this Agreement, or any future amendment to this Agreement, which proves to be intentionally false or misleading in any material respect as of the time such representation or disclosure is made, whether or not any such representation or disclosure appears as part of this Agreement. 70 70017373Vl 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 €I. Failure to Provide City Most Favored Customer Status. The Contractor charges other Transfer Station Users Service Fees which are less that the PTS Solid Waste Fee for services substantially similar to the City. Upon notice by City, the Contractor shall immediately reduce the City’s service fee and shall have thirty (30) days to refund over payment of service fees by City or its Designated Hauler plus interest at the rate of ten (loo/) percent. 15.02 Right To Cure. The Contractor shall be given five (5) Working Days from time of notification by the City to cure any monetary default arising under Section 15.01 and thirty (30) days from the time of notification to cure any non-monetary default under Section 15.01 provided, however, that the City shall not be obligated to provide the Contractor with a notice and cure opportunity if the Contractor has committed the same or similar breach within a twenty- four (24) month period. The Contractor shall not be entitled to a cure period for default arising under subsections A or G. The City, at its sole discretion may waive any of the material events of default in section 15.01. 15.03 Right to Terminate Upon Default. In the event of an event of default following the expiration of all cure periods described above and provided the Contractor has not successfully challenged in an appropriate forum the City’s conclusion that such failure or rehsal to perform has occurred or constitutes a material breach of this Agreement, the City has the unilateral right to terminate this Agreement. Within ten (10) calendar days’ of City’s issuance of notice to the Contractor of the Contractor’s default if the public health or safety is threatened, or otherwise within thirty (30) calendar days of City’s issuance of notice to the Contractor of the Contractor’s default, the City will determine if a termination hearing must be held. The termination hearing shall be held before the City Council and shall be open to all Persons. In the event the City decides to terminate this Agreement based on the findings of the termination hearing, the City shall provide notice to the Contractor of the termination date thirty (30) calendar days in advance of such date, and the Contractor shall thereafter be relieved on a going-forward basis of all liabilities and obligations hereunder, provided however, that the provisions of Sections 13.07 and 14.01 and the following paragraph shall survive termination. In the event the City exercises its right to terminate this Agreement, the City may, at its option, directly undertake performance of the services described in this Agreement or arrange with other persons to perform the services described within this Agreement with or without a written agreement from other persons. This right of termination is in addition to any other rights of the City upon a failure of the Contractor to perform its obligations under this Agreement. The City’s right to terminate this Agreement and to retain possession of the Palomar Transfer Station are not exclusive, and the City’s termination of this Agreement shall not constitute an election of remedies. Instead, they shall be in addition to any and all other legal and equitable rights and remedies which the City may have. By virtue of the nature of this Agreement, the urgency of timely continuous and high-quality service, the time required to effect alternative service, and the rights granted by the City to the Contractor, the remedy of damages for a default hereof by the Contractor may be inadequate, and the City may seek injunctive relief. 70017373V1 71 1 15.04 Liquidated Damages. A. General. The City finds, and the Contractor agrees, that as of the time of the Execution Date of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by the City or its Designated Hauler(s) as a result of a breach by the Contractor of its obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, hstration, and deprivation of the benefits of the Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement for such breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches. B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The Parties further acknowledge that consistent, reliable Transfer Station, Transport and Disposal services are of utmost importance to the City and that the City has considered and relied on the Contractor’s representations as to its quality of service commitment in awarding this Agreement to the Contractor. The Parties further recognize that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and performance. The Parties further recognize that if the Contractor fails to achieve the performance standards, or fails to submit required documents in a timely manner, the City and its residents will suffer damages, and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages that the City will suffer. Therefore, without prejudice to the City’s right to treat such non-performance as an event of default under this Article, the Parties agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages considering all of the circumstances existing on the Execution Date of this Agreement, including the relationship of the sums to the range of harm to the City that reasonably could be anticipated and the anticipation that proof of actual damages would be costly or impractical. Notwithstanding the foregoing, to the extent the Contractor is assessed liquidated damages for events of default described under items 1,2,3 and 5 of this subsection, the payment of such liquidated damages by the Contractor to the City shall be deemed to have cured such default or event of default, and such act or violation by the Contractor shall no longer be deemed a default hereunder. In placing their initials at the places provided, each Party specifically confirms the accuracy of the statements made above and the fact that each Party has had ample opportunity to consult with legal counsel and obtain an explanation of the liquidated damage provisions at the time that the Agreement was made. Contractor City Initial Here Initial Here 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 7W17373Vl 72 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 The Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set forth below which shall be subject to annual adjustment as described in Sections 8.08 and 9.07: 1. Vehicle Turnaround Reliability. For each Designated Hauler vehicle, which is unable to depart from the Transfer Station within Maximum Vehicle Turnaround Time due to conditions at or within the Transfer Station: $100;00. 2. Timeliness of Report Submittals to City. Any report shall be considered late until such time as a correct and complete report is received by the City. For each calendar day a report is late, after the seventh (7th) late day, the daily liquidated damage amount shall be: $500 per day for annual reports and $100 per day for quarterly reports or other reports. 3. Diversion Guarantee. For each month that the Contractor fails to meet the Diversion Guarantee stated in Section 3.30.A for Diversion of City Waste at the Transfer Station: Amount equal to Disposal Fee multiplied by the shortfall of Diverted Tons. 4. Transfer Station Maintenance. For each month that the Contractor is in violation of standard maintenance requirements under the Operations and Maintenance Manual: $1,000. 5. Excessive Complaints. In the event mare than fifty (50) complaints were received during a given month from a reasonable number of unrelated Persons: $150 for each complaint received above fifty (50) complaints. C. City Determination of Events. The City Manager may determine the occurrence of events giving rise to liquidated damages through the observation of its own employees or representative or investigation of customer complaints. D. Notice of Intent. Prior to assessing liquidated damages, the City shall give the Contractor written notice of its intent to do so. The notice will include a brief description of the incident(s)/non-performance. The Contractor may review (and make copies at its own expense) all information in the possession of the City relating to incident(s)/non-performance. The Contractor may, within ten (10) days after receiving the notice, request a meeting with the City Manager or his/her designee. The Contractor may present evidence in writing and through testimony of its employees and others relevant to the incident(s)/non-performance. The City will provide the Contractor with a written explanation of his or her determination on each incident(s)/non-performance prior to authorizing the assessment of liquidated damages. The decision of the City shall be final but the Contractor may make such payment under protest and reserve its right to contest the City’s determination of such assessment pursuant to the dispute resolution provisions of Section 16.14. E. Amount. The City may assess liquidated damages for each calendar day or event, as appropriate, that the Contractor is determined to be liable in accordance with this Agreement. F. Timing of Payment. The Contractor shall pay any liquidated damages assessed by the City after they are assessed in accordance with the Contractor’s monthly remittance process described in Article 13. If the liquidated damages are not paid in accordance with Article 12, the City may proceed to collect monies through the performance bond required by this Agreement, 70017373Vl 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 order the termination of this Agreement, or both, the City shall give notice to the Contractor and the Contractor shall have five (5) business days to pay and thereafter, 15.05 Excuse from Performance. The Parties shall be excused from performing their respective obligations hereunder in the event they are prevented from so performing by reason of floods, earthquakes, other natural disasters, war, terrorist attack, civil insurrection, riots, acts of any government (including judicial action), and other similar catastrophic events which are beyond the control of and not the fault of the party claiming excuse from performance hereunder. Labor unrest, including, but not limited to, strike, work stoppage or slowdown, sick-out, picketing, or other concerted job action conducted by the Contractor's employees or directed at the Contractor is not an excuse from performance and the Contractor shall be obligated to continue to provide service notwithstanding the occurrence of any or all of such events. The Party claiming excuse from performance shall, within two (2) days after such Party has notice of such cause, give the other Party notice of the facts constituting such cause and asserting its Claim to excuse under this Section. The interruption or discontinuance of the Contractor's services caused by one or more of the events excused shall not constitute a default by the Contractor under this Agreement. Notwithstanding the foregoing, however, if the Contractor is excused from performing its obligations to Accept, Transfer, Transport or Dispose City Waste under this Agreement hereunder for any of the causes listed in this Section for a period of ten (10) or more consecutive calendar days, the City shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten (10) days notice, in which case the provisions relative to taking possession of the Transfer Station, equipment and other property and engaging the Contractor's personnel in Section 15.06 will apply, but not any requirement to pay any amounts of reimbursement to the City thereunder. 15.06 Right to Perform. If this Agreement is suspended andor terminated due to a Contractor default, the City shall have the right to perform and complete, by contract or otherwise, the services herein or such part thereof as it may deem necessary to procure labor, equipment, and materials and incur all other expenses necessary for completion of the services, including, but not limited to, Transfer, Transport, or Disposal of City Waste andor Transfer and Transport of Recyclable Materials and Organic Materials at alternate facilities. If such expenses (including, but not limited to, the costs of transportation to alternative facilities and the actual fees charged for Transfer, Transport, and Disposal) exceed the amounts which would have been payable to the Contractor under this Agreement, if it had been fully performed by the Contractor, then the Contractor shall pay the amount of such excess for one (1) year to the City within thirty (30) days of the Contractor's receipt of a Claim for reimbursement, and evidence of costs incurred, from the City. The City's right to perform shall include its ability to operate the Transfer Station and to use the Contractor's labor, supplies, and equipment to conduct the Transfer Station operations and Transport of City Waste to a Disposal facility. 15.07 City's Remedies Cumulative, Specific Performance. The City's rights to suspend or terminate this Agreement under Section 15.02 or to perform under Section 15.05 are not mutually exclusive, and the City's exercise of one such right shall not constitute a selection of 1 remedies. Instead, they shall be in addition to any and all other legal and equitable rights and 2 remedies which the City may have. 3 4 5 6 7 8 9 10 11 12 15.08 Default by Designated Hauler. If the performance or failure to perform of the Designated Hauler results in a breach of any material obligation under this Agreement and such breach remains uncured following thirty (30) days’ prior written notice to City and Designated Hauler, then the Contractor may pursue all rights and remedies against the Designated Hauler with respect thereto and the City hereby assigns to the Contractor all rights and remedies accruing to the City for enforcement by the Contractor in connection therewith. City shall take Reasonable Business Efforts to direct Designated Hauler to perform its obligations under this Agreement. City shall make a good faith effort to include in all Solid Waste collection agreements a provision whereby a default of a material obligation of the Designated Hauler under this Agreement will also be a default under the Solid Waste collection agreement. 13 15.09 Default by City. If the City breaches any material obligation under this Agreement and 14 such breach remains uncured following thirty (30) days’ prior written notice to City, the 15 Contractor shall file a Claim with the City in accordance with the Government Claims Act, Div. 16 3.6, of the California Government Code. Upon final action on the Contractor’s Claim by the 17 City, the Contractor shall have the right to take any action at law or in equity it may have to 18 enforce the payment of amounts due from the City (as distinct from the Designated Hauler) 19 andor the performance of any obligations of the City hereunder. 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 ARTICLE 16 OTHER AGREEMENTS OF THE PARTIES 16.01 Relationship of Parties. The Parties intend that the Contractor shall perform the services required by this Agreement as an independent Contractor engaged by the City and not as an agent of the City, an officer or employee of the City or as a partner of or joint venturer with the City. No employee or agent of the Contractor shall be or shall be deemed to be an employee or agent of the City. Except as expressly provided herein, the Contractor shall have the exclusive control over the manner and means of conducting the Solid Waste Transfer, Transport, and Disposal services and, if applicable, of conducting Recyclable Materials and Organic Materials Transfer and Transport services performed under this Agreement, and all persons performing such services. The Contractor shall be solely responsible for the acts and omissions of its officers, employees, subcontractors, and agents. Neither the Contractor nor its officers, employees, subcontractors, and agents shall obtain any rights to retirement benefits, survivors compensation benefits, or any other benefits which accrue to the City employees by virtue of their employment with the City. 35 16.02 Compliance with Law and City Codes. 36 A. Compliance with Law. In providing the services required under this Agreement, the 37 Contractor shall at all times comply with Applicable Law (including, hut not limited to, the 38 “Environmental Laws”) of the United States, the State of California, the County of San Diego, 39 the City and with all applicable regulations promulgated by federal, state, regional, or local 40 administrative and regulatory agencies, now in force and as they may be enacted, issued, or 41 amended during the Term). In the event of any conflict between this Agreement and Applicable 7m17373v1 75 1 Law, the requirements of the Applicable Law shall govern, and the Contractor shall not be in 2 breach of this Agreement if the Contractor complies with the Applicable Law in contravention of 3 this Agreement, provided that nothing in this Section is intended to limit or enlarge the 4 Contractor’s obligations or diminish its right to satisfy its obligation to provide Transfer Station 5 services, Transport, and Disposal Solid Waste and, if applicable, Transfer and Transport 6 Recyclable Materials and Organic Materials by arranging for it to be accepted and disposed of at 7 other facilities. 8 B. Compliance with City Codes. The Contractor shall comply with those provisions of the 9 ordinances and municipal codes of the City which are applicable, including, but not limited to, 10 the requirement to obtain business licenses, and with any and all amendments to such applicable 1 1 provisions during the Term of this Agreement provided; however, that if a change in any such 12 municipal code materially affects the Contractor’s annual cost of operations, the Contractor shall 13 be entitled to an interim compensation adjustment. 14 16.03 Governing Law. This Agreement shall be governed by, and construed and enforced in 15 accordance with, the laws of the State of California. 16 16.04 Jurisdiction. Any lawsuits between the Parties arising out of this Agreement shall be 17 brought and concluded in the courts of the State of California, in North San Diego County or the 18 Federal District court for southern California, which shall have exclusive jurisdiction over such 19 lawsuits. With respect to venue, the Parties agree that this Agreement is made in and will be 20 performed in the County of San Diego, California. 21 16.05 Assignment by Contractor. 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 A. Permitted Assignments. The Contractor shall have the right to assign this Agreement to any other company which is owned and controlled by Allied Waste Industries, Inc., provided that, (i) such company is qualified to do business in California, and assumes in writing all of the Contractor’s obligations under this Agreement prior to or concurrently with such assignment, (ii) such company provides the performance bond required under Section 14.03, and (iii) the Guaranty Agreement remains in full force and effect. The Contractor shall not otherwise assign its rights nor delegate or otherwise transfer its obligations under this Agreement to any other Person. B. Assignment Defined. For the purpose of this Section when used in reference to the Contractor, “assignment” shall include, but not be limited to (1) a sale, exchange or other transfer of substantially all of the Contractor’s assets dedicated to service under this Agreement to a third party; (ii) a sale, exchange or other transfer of outstanding common stock of the Contractor to a third party provided said sale, exchange or transfer may result in a change of control of contractor; (iii) any dissolution, organization, consolidation, merger, re-capitalization, stock issuance or re-issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction to which results in a change of Ownership or control of the Contractor; (iv) any assignment by operation of law, including insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment for an execution being levied against this Agreement, appointment of a receiver taking possession of the Contractor’s property, or transfer occurring in the event of a probate proceeding; and (v) any combination of the foregoing (whether or not in 70017373V1 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 related or contemporaneous transactions) which has the effect of any such transfer or change of Ownership, or change of control of the Contractor. The Contractor acknowledges that this Agreement involves rendering a vital service to the City’s residents and business, and that the City has selected the Contractor to perform the services specified herein based on (1) the Contractor’s experience, skill and reputation for conducting its operations in a safe, effective and responsible fashion, at all times in keeping with Applicable Law, regulations, and best management practices, and (2) the Contractor’s obligations to the City under this Agreement. The City has relied on each of these factors, among others, in choosing the Contractor to perform the services to be rendered by the Contractor under this Agreement. 16.06 Contractor Request for Assignment. If the Contractor requests the City’s consideration of and consent to an assignment, the City may reasonably deny or approve such request. No request by the Contractor for consent to any assignment need be considered by the City unless and until the Contractor has met the following requirements: The Contractor shall pay the City up to $25,000 (which shall be adjusted annually using the same procedures described in Section 8.04.B above), its expenses necessary to investigate the suitability of any proposed assignee, and to review and finalize any documentation required as a condition for approving any such assignment; The Contractor shall furnish City with audited financial statements of the proposed assignee’s operations for the immediately preceding three (3) operating years; The Contractor shall finish City with satisfactory proof (i) that the proposed assignee has at least ten (10) years of Solid Waste management experience on a scale equal to or exceeding the scale of operations conducted by the Contractor under this Agreement; (ii) that in the last five (5) years, the proposed assignee has not suffered any significant citations or other censure from any federal, state or local agency having jurisdiction over its Solid Waste management operations due to any significant failure to comply with state, federal or local Applicable Law and that the assignee has provided City with a complete list of such citations and censures; (iii) that the proposed assignee has at all times conducted its operations in an environmentally safe and conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste management practices in accordance with sound Solid Waste management practices in full compliance with all federal, state and local laws regulating the Transfer, Transportation, and Disposal of Solid Waste including Hazardous Substances; (v) that the proposed assignee’s financial status, as demonstrated by audited financial statements, is sufficient to perform all the Contractor’s obligations, (vi) that the Guaranty Agreement provided by the proposed assignee is satisfactory to the City and is binding and enforceable upon the guarantor, and (vii) of any other information required by City to ensure the proposed assignee can fulfill the terms of this Agreement in a timely, safe and effective manner. Under no circumstances shall the City be obligated to consider any proposed assignment by the Contractor if the Contractor is in default under this Agreement at any time during the period of consideration. In considering the assignment, the City may, if the City has financial concern, it may reconsider the amount of the performance bond requirements as a requirement of the assignment to provide the City additional financial assurances. 7W17373Vl 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 16.07 Binding on Successors. The provisions of this Agreement shall inure to the benefit of and be binding on the successors and permitted assigns of the Parties. 16.08 Parties in Interest. Nothing in this Agreement, whether expressed or implied, is intended to confer any rights on any Persons other than the Parties to it and their representatives, successors and permitted assigns. 16.09 Waiver. The waiver by either Party of any breach or violation of any provisions of this Agreement shall not be deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach or violation of the same or any other provision. The subsequent acceptance by either Party of any monies which become due hereunder shall not be deemed to be a waiver of any pre-existing, concurrent or subsequent breach or violation by the other Party of any provision of this Agreement. 16.10 Notices. All notices, demands, requests, proposals, approvals, consents, and other communications which this Agreement requires, authorizes or contemplates shall be in writing, except where specifically provided otherwise, and shall be personally delivered to a representative of the Parties at the address below or shall be deposited in the United States mail, first class postage prepaid, (certified or registered mail, return receipt requested) addressed as follows: If to the City: City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 If to Contractor: General Manager Palomar Transfer Station, Inc. 8364 Clairemont.Mesa Blvd. San Diego, CA 921 11 copy to: Palomar Transfer Station, Inc. 15880 N Greenway-Hayden Loop, Suite 100 Scottsdale, AZ Attention: Corporate Secretary The address to which communications shall be delivered may change from time to time by a notice to either Party given in accordance with this Section. Notices shall be deemed delivered only upon receipt. 16.11 Representatives of the Parties. A. Representative of the City. On or before the Effective Date, the City Council shall delegate, in writing, authority to a City official, and may permit such official, in turn, to delegate in writing some or all of such authority to subordinate officers. The Contractor may rely upon actions taken by such delegates with respect to the City's respective rights and obligations under this Agreement. 70017373Vl 78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 B. Representatives of Contractor. The Contractor shall, on or before the Effective Date, designate in writing a responsible officer who shall serve as the representative of the Contractor in all matters related to this Agreement and shall inform the City in writing of such designation and of any limitations upon his or her authority to bind the Contractor. The City may rely upon action taken by such designated representative as actions of the Contractor unless the actions are outside the scope of authority delegated to himher by the Contractor as communicated to the City. The Contractor reserves the right to designate at any time a new representative of the Contractor upon at least ten(l0) days prior written notice to the City. 16.12 Compilation of Information for State Law Purposes. The Contractor shall compile information on amounts of Solid Waste, Recyclable Materials, and Organic Materials delivered to the Transfer Station and Designated Landfills and other information, which the City may reasonably request. 16.13 Guaranty of Contractor’s Performance. Pursuant to a Guaranty Agreement in substantially the form attached as Exhibit D, the Guarantor has agreed to guaranty the Contractor’s performance of this Agreement including the Contractor’s indemnification obligation hereunder. The Guaranty Agreement is being provided concurrently with the Contractor’s execution of this Agreement. 16.14 Dispute Resolution. If a dispute should arise regarding the Contractor’s performance of its obligations under this Agreement, the following procedure shall be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the Parties. A representative of aggrieved Party shall prepare a notice of dispute that includes a written description of its dispute and its recommended method of resolution and shall submit such written notice to the other Party. The Party receiving the notice of dispute shall reply to the notice within ten (10) Working Days. If the resolution thus obtained is unsatisfactory to the aggrieved Party, a letter outlining the disputes shall be forwarded to City Council through the Office of the City Manager. The City Council may then opt to consider a directed solution to the problem. In such cases, the action of the City Council shall be the final administrative remedy available to the Parties involved. If the City Council takes no action to direct a solution to problem within (60) days of receipt of the letter by the City Manager, such failure to act shall be deemed the final administrative remedy available to the parties. Although nothing in this procedure shall prohibit the Parties from seeking remedies available to them at law. 16.15 Modifications to Scope of Service. A. General. City may direct the Contractor in writing to perform additional services (including, but not limited to, Acceptance and Transfer of Source Separated Recyclable Materials and performance of additional material Recovery activities) or modify the manner in which the Contractor performs existing services (including, but not limited to, the modifications to or elimination of services). The Contractor’s Compensation shall be increased or decreased, as appropriate, to give effect to these adjustments. B. Proposal for Modification of Services. Within thirty (30) days of City request for a proposal, the Contractor shall present its proposal to modify existing services. At a minimum, the proposal shall contain a completed description of the following: 7W17373VI 79 1 1. Methodology to be employed (changes to equipment, manpower, staffing, etc.). 2 2. Equipment to be utilized (equipment number, types, capacity, age, etc.). 3 3. Labor requirements (changes in number of employees by classification). 4 4. Provision for program publicity/educatiodmarketing (if appropriate). 5 5. Estimate of the impact of the service modification (increased diversion tonnage, reduced 6 costs, increased public service, etc.). 7 6. Five (5) year projection of the financial results of the program’s operations in a balance 8 sheet and operating statement format including documentation of the key assumption underlying 9 the projections and the support for those assumptions, giving full effect to the savings or costs to 10 existing services. 11 C. City’s Review. Within ninety (90) calendar days of receiving the Contractor’s proposal, 12 the City shall review and comment on, and approve or disapprove of the modification to the 13 scope of services. The City and the Contractor may mutually agree to extend the time period for 14 review due to the complexity of the scope of service modification under consideration, the time 15 needed for the review or approval, or for other reasonable reasons. 16 The City may request the assistance of an independent third party, reasonably acceptable to the 17 Contractor, to review the proposal. The reasonable costs of such review shall be paid by the 18 Contractor if the modification to the scope of services is initiated by the Contractor or by the 19 City if the modification to the scope of services is initiated by the City. The cost of such review 20 shall be estimated in advance of the work, and provided to the Contractor for comment and 21 agreement to pay. The Contractor’s refusal to pay the reasonable cost of review of a Contractor- 22 initiated proposal shall be gounds for City rejection of such proposal. 23 The City may request from the Contractor operating and business records reasonably required to 24 verify the reasonableness and accuracy of the impacts associated with a modification to the scope 25 of services. The Contractor shall fully cooperate with the City’s request and provide City and its 26 agent(s) copies of or access to the Contractor’s records. 27 28 29 30 31 32 33 34 D. Approval of Modification to Scope of Services. Upon City approval or determination, the City will issue a notice approving the modification to the scope of service and documenting any change to the Contractor’s Compensation and Service Fees, and approved change to the Contractor’s obligations hereunder. The Parties shall prepare a written amendment to this Agreement documenting any and all changes resulting from the modification to the scope of services. No adjustment in the Contractor’s Compensation, change in the Contractor’s obligations, or change in scope of services shall become effective absent such City approval or determination. 35 E. City’s Right to Permit Others to Provide Services. The Contractor acknowledges and 36 agrees that City may permit other Persons besides the Contractor to provide additional services 37 not otherwise contemplated under this Agreement. If the Contractor and City cannot agree on 38 terms and conditions of such services in thirty (30) calendar days from the end of the City’s 7W17373V1 80 1 review period described in Section C above, the Contractor acknowledges and agrees that the 2 City may permit Persons other than the Contractor to provide such services. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 16.16 Means and Methods of Solid Waste Management Practices. A. Initial Means and Methods. The initial Means and Methods of Solid Waste management practices including, but not limited to, Acceptance, Delivery, Transfer, Transport, Recovery, Diversion and Disposal, are as specified in this Agreement. B. Alternative Means and Methods. The Parties recognize that the Means and Methods of Solid Waste management practices including, but not limited to, Acceptance, Delivery, Transfer, Transport, Recovery, Diversion or Disposal may change over the Term. Either Party may request that the other Party consider use of an alternative Means or Method(s) of Solid Waste management practices including, but not limited to, Acceptance, Delivery, Transfer, Transport, Recovery, Diversion or Disposal. Should either Party do so, the terms and conditions governing use of an alternative Means and Methods of Solid Waste management practices including, but not limited to, Acceptance, Delivery, Transfer, Transport, Recovery, Diversion or Disposal shall be considered a change in the Contractor's obligation and shall be addressed as a modification to scope of services in accordance with Section 16.15. 16.17 Maintenance of Separate Accounting Records. The Contractor shall maintain the accounting records and financial statements required to be provided to the City under this Agreement separately from operations in other locations, as if the Contractor were an independent entity providing service only to the City. For purposes of the Agreement, the costs and revenues associated with providing service. to the City shall not be combined, consolidated or in any other way incorporated with those of other operations conducted by the Contractor in other locations, or with those of an Affiliate. 16.18 Subcontracting. The Contractor may engage subcontractors for Transfer, Transportation, Recovery, Diversion or Disposal of City Waste; however, such subcontracting shall in no way amend the Contractor's obligations to the City including, but not limited to, those described in Articles 14 and 15 of this Agreement. 16.19 Transition to Next Contractor. If the transition of services to another contractor occurs at the end of the CTS Contractor Operating Period or as a result of expiration of Term, default and termination, or otherwise, the Contractor will take direction from the City and subsequent contractor(s) to assist in an orderly transition. Depending on the Contractor's circumstances at the point of transition, the Contractor at its option may enter into negotiations with the next contractor to sell (in part or all) its vehicles and equipment, as appropriate. 16.20 Contractor's Investigation. The Contractor has made an independent investigation of the conditions and circumstances surrounding this Agreement and the work to be performed by the Contractor as part of this Agreement. The Contractor's execution of this Agreement constitutes the Contractor's acceptance of the results of such investigation as satisfactory. 16.21 City Free to Negotiate with Third Parties. The City may at any time investigate all options for the Transfer, Transportation, and Disposal services for City Waste to be implemented after the expiration of the Initial PTS Operating Period, CTS Contractor Operating Period, or 1 2 3 4 5 6 I 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Term. Without limiting the generality of the foregoing, the City may solicit proposals from the Contractor and from third parties for the provision of services, and any combination thereof, and may negotiate and execute agreements for such services which will take effect at the end of the Initial PTS Operating Period, subject to the right of the Contractor to operate PTS as provided in Section 2.04, or CTS Contractor Operating Period or upon the expiration or earlier termination of this Agreement under Section 15.03. 16.22 Privacy. The Contractor shall strictly observe and protect the rights of privacy of customers. Information identifymg individual customers or the composition or contents of a customer's waste stream shall not be revealed to any Person, governmental unit, private agency, or the Contractor, unless upon the authority of a court of law, by statute, in response to a valid third party request under the Public Information Act or upon valid authorization of the customer. This provision shall not be construed to preclude the Contractor from preparing, participating in, or assisting in the preparation of waste characterization studies or waste stream analyses, which may be required by the City or California Integrated Waste Management Act. 16.23 City Transfer Station Financing Assumption. The Parties acknowledge that the City prepared this Agreement assuming that tax-exempt financing would be secured to finance the development of the City Transfer Station. If changes in tax law or the use of an alternative financing mechanism require provisions of this Agreement to be modified, the Parties agree to discuss required modifications and mutually agree on changes. In the event of the City and the Contractor can not agree on modifications to the Agreement, the Parties shall handle the matter in accordance with the disputeresolution procedures in Section 16.14. 16.24 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both the City and the Contractor. 16.25 Inserted Provisions. Each provision and clause required by law to be inserted into this Agreement shall be deemed to be enacted herein, and this Agreement shall be read and enforced as though each were included herein. If through mistake or otherwise, any such provision is not inserted or is not correctly inserted, this Agreement shall be amended to make such insertion on application by either party. 16.26 Agreement in Full Effect. All provisions of this Agreement shall remain in effect during the Term. 16.27 No Competition. During the Term, each Party agrees not to compete with the other Party in connection with the provision of Transfer services for Solid Waste. The City shall not use, or allow to be used, the Palomar Transfer Station for purposes of Transfening Solid Waste during the CTS Marketing Period; however, the City reserves the right to use, or allow the use of, the Palomar Transfer Station for other purposes including, but not limited to, the purposes of storage, maintenance and repair, administration and Refuse Collection operations. 7w17373v1 82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 16.28 Compliance with Agreement. In the event requirements of this Agreement conflict with Standard Business Practices or Reasonable Business Efforts, the Contractor shall comply with requirements of this Agreement (except where the Contractor’s compliance with Standard Business Practices or Reasonable Business Efforts is expressly provided herein). 16.29 Effect on Conditional Use Permit. In no event shall this Agreement constitute, vary, or alter the terms of, any conditional use permit required for operation of the Palomar Transfer Station. ARTICLE 17 MISCELLANEOUS PROVISIONS 17.01 Exhibits. Each of the exhibits, identified as Exhibits A through E, and Schedule 2.04.A attached hereto is incorporated herein and made a part hereof by this reference. 17.02 Section Headings. The Article headings and Section headings in this Agreement are for convenience of reference only and are not intended to be used in the construction of this Agreement nor to alter or affect any of its provisions. 17.03 Interpretation. This Agreement, including the exhibits attached hereto, shall be interpreted and construed reasonably and neither for nor against either Party, regardless of the degree to which either Party participated in its drafling. Any conflict between the body of the Agreement and the exhibits shall be resolved in favor of the Agreement. 17.04 Amendment. This Agreement may not be modified or amended in any respect except in writing signed by the Parties. 17.05 Severability. If any provision of this Agreement is for any reason deemed to be invalid, and unenforceable, the invalidity or unenforceability of such provision shall not affect any of the remaining provisions of this Agreement which shall be enforced as if such invalid or unenforceable provision had not been contained herein. In the event any material provision of this Agreement is for any reason deemed to be invalid, and unenforceable, the City reserves the right to terminate this Agreement. 17.06 References to Laws. All references in this Agreement to laws and regulations shall be understood to include such laws and regulations as they may be subsequently amended or recodified, unless otherwise specifically provided in this Agreement. In addition, references to specific governmental agencies shall be understood to include agencies which succeed to or assume the fimctions they are currently performing. 17.07 Definitions. Capitalized terms used in this Agreement without definition immediately following use of such term shall have the meanings specified in Article 1, unless the context clearly requires otherwise. 17.08 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original. 37 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 ARTICLE 18 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR 18.01 Corporate Status. The Contractor represents and warrants that it is a corporation duly organized, validly existing and in good standing under the laws of the State of California and authorized to do business in the State of California. It has the corporate power to own its properties and to carry on its business as now owned and operated and as required by this Agreement. 18.02 Corporate Authorization. The Contractor represents and warrants that it has the authority to enter into and perform its obligations under this Agreement. The Board of Directors of the Contractor (or the shareholders, if necessary) have taken all actions required by law, its articles of incorporation, its bylaws, or othenvise, to authorize the execution of this Agreement. The person signing this Agreement on behalf of the Contractor has authority to do so. 18.03 Agreement Will Not Cause Breach. To the best of the Contractor's knowledge, after reasonable investigation, neither the execution or delivery of this Agreement nor the Performance of this Agreement: (i) conflicts with, violates, or results in a breach of any Applicable Law; or (ii) conflicts with, violates or results in a breach of any term or condition of any judgment, order or decree of any court, administrative agency or other governmental authority, or any agreement or instrument to which the Contractor is a party or by which the Contractor or any of its properties or assets are bound, or constitutes a default thereunder. 18.04 No Litigation. To the best of the Contractor's knowledge, after reasonable investigation, there is no action, suit, proceeding or investigation, at law or in equity, before or by any court or governmental authority, commission, board, agency or instrumentality decided, pending or threatened against the Contractor wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, would materially adversely affect the performance by the Contractor of its obligations hereunder or which, in any way, would adversely affect the validity or enforceability of this Agreement or which would have a material adverse effect on the financial condition of the Contractor or any surety guaranteeing the Contractor's performance under this Agreement, which has not been waived by the City in writing. 18.05 Ability to Perform. The Contractor possesses the business, professional, and technical expertise to manage, handle, treat, store, Transfer, Transport, and Dispose of the Solid Waste, and possesses the equipment and employee resources required to perform this Agreement. ARTICLE 19 REPRESENTATIONS AND WARRANTIES OF CITY 19.01 Status. The City is a municipal corporation of the State, duly organized and validly existing under the Constitution and laws of the State. 19.02 City Authorization. The City has the authority to enter into and perform its obligations under this Agreement. The City has taken all actions required by law or otherwise to authorize the execution of this Agreement. The persons signing this Agreement on behalf of the City have the authority to do so. The City has complied with Applicable Law in entering into the Agreement. 7W17373Vl 84 1 2 3 4 5 6 I 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 29 30 31 32 33 34 3s 36 31 38 19.03 Agreement Will Not Cause Breach. To the best of the City’s knowledge, after reasonable investigation, neither the execution or delivery of this Agreement nor the performance of this Agreement: (i) conflicts with, violates, or results in a breach of any Applicable Law; or (ii) conflicts with, violates or results in a breach of any term or condition of any judgment, order or decree of any court, administrative agency or other governmental authority, or any agreement or instrument to which City is a party or by which City or any of its properties or assets are bound, or constitutes a default thereunder. 19.04 No Warranty. City makes no warranties with respect to waste quantity or characterization data contained in its request for proposal, or subsequently distributed to the Contractor. The City expressly disclaims any warranties, either express or implied, as to the quantity or composition for any particular purpose of Permitted Material Delivered to the Facility. 19.05 No Conflicts. Neither the Execution or delivery by the City of this Agreement, the performance by the City of City’s obligations hereunder, nor the fulfillment by the City of the terms and conditions hereoE (1) conflicts with, violates or results in a breach of Applicable Law; or (2) conflicts with, violates or results in a breach of any term or condition of any judgment, order or decree of any court, administrative agency or other governmental authority, or any agreement or instrument to which the City is a party or by which the City or any of its properties or assets are bound, or constitutes a default thereunder. 19.06 No Approvals. No approval, authorization, license, permit, order or consent of, or declaration, registration or filing with any governmental or administrative authority, commission, board, agency or instrumentality is required for the valid execution and delivery of this Agreement by the City, except such as have been duly obtained from the City Council. 19.07 No Litigation. To the best of the City’s knowledge, after reasonable investigation, there is no action, suit, proceeding or-investigation, at law or in equity, before or by any court or governmental authority, commission, board, agency or instrumentality pending or, to the best of the City’s knowledge, threatened, against the City wherein an unfavorable decision, ruling or finding, in any single case or in the aggregate, would materially adversely affect the performance by the City of City’s Obligations hereunder or in connection with the transactions contemplated hereby, or which, in any way, would adversely affect the validity of, or the ability to enforce this Agreement or any other agreement or instrument entered into by the City in connection with the transactions contemplated hereby. 19.08 Public Works. The services provided by the Contractor do not constitute a “public work” and are not subject to any of the provisions of the Public Works law, Labor Code Sections 1720-1901, nor of the regulations promulgated thereunder. IN WITNESS WHEREOF, the City and the Contractor have executed this Agreement as of the day and year first above written. Remainder of page intentionally left blank. 7W17373V1 85 1 2 3 4 5 6 I 8 9 10 11 12 CONTRACTOR: CITY: PALOMAR TRANSFER STATION, INC., a California corporation Title: (Proper notarial acknowledgment of execution by the Contractor must be attached. Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL, City Attorney h 70017373v1 86 STATE OF CALIFORNIA 1 On 2003 before me, Lh,*7eLec the State of California, personally appeared , personally known to me (- whose name is subscribed to the within instrument, and acknowledged to me that he & executed the same in his erker authorized capacity and that, by his orker-signature on the instrument, the person or the entity upon behalf of which he ex" acted, executed the instrument. (Notarial Seal) STATE OF CALIFORNIA ) COUNTYOF ) ss. ) T&k/ib On %L 28 ,200z before me, , a Notar~r P;bi;so c, for the State of California, personally appeared 34~0s p 5 , -proved to me on the basis of satisfactory evidencekto be the person whose name is subscribed to the within instrument, and acknowledged to me that he -executed the same in hise-k authorized capacity and that, by his &signature on the instrument, the person or the entity upon behalf of which he e" acted, executed the instrument. * - U (Notarial Seal) STATE OF CALIFORNIA COUNTY OF , 4yL P rm_7 ) ss. - On fl;; 2 8 ,2002, before me, and for the State of , proved to me on the basis of satisfactory evidencej-to be the person whose name is subscribed to the within instrument, and acknowledged to me that he ef4fre executed the same in his ar*er authorized capacity and that, by his whm signature on the instrument, the person or the entity upon behalf of which he orshe acted, executed the instrument. S my hand and official seal. (Notarial Seal) W ASSIGNMENT OF LEASE THIS ASSIGNMENT OF LEASE (this “Assignment”), is made as of June 1,2002, by and between Palomar Transfer Station, Inc., a California corporation (“Assignor”), and the City of Carlsbad, a municipal corporation (“Assignee”). WITNESSETH: For valuable consideration, receipt of which is acknowledged, Assignor and Assignee agree as follows: 1. Assignment and Assumution. (a) Effective as of the Effective Date (as defined below), Assignor hereby assigns and transfers to Assignee all right, title and interest of Assignor in, to and under that certain Palomar Transfer Station Lease Agreement, dated as of October 31, 1997, between the County of San Diego, as lessor (“County”), and Assignor, as lessee (the “Lease Agreement”), a full and complete copy of which is attached hereto as Exhibit A. (b) Effective as of the Effective Date (as defined below), Assignee hereby accepts the foregoing assignment, assumes and agrees to fully and timely perform all of the covenants and agreements in the Lease Agreement to be performed by the lessee thereunder that arise or accrue from and after the Effective Date of this Assignment and shall indemnify, defend and hold Assignor harmless from any breach by Assignee of the terms and provisions of the Lease Agreement except to the extent caused by Assignor. (c) The effective date of this Assignment shall be June 1, 2002 (the “Effective Date”), provided that tbe following conditions have been satisfied on or before the Effective Date: (i) That certain Agreement for Transfer Station Disposal Services of even date herewith between Assignee and Assignor (the “Transfer Station Agreement”) shall have been fully and duly executed and authorized on behalf of Assignor and Assignee, respectively, and shall be in full force and effect; (ii) Assignor and Assignee shall have entered into a certain sublease agreement whereby Assignor shall have subleased for a term of not less than ten (10) years the entirety of the premises leased under the Lease Agreement; and (iii) County shall have given its written consent to this Assignment. (d) Following the parties’ execution of this Assignment, Assignor shall promptly seek County’s consent to this Assignment. 2. Prepaid Rent. Assignor represents that it has prepaid to County the amount of Three Million Eighty-six Thousand Dollars ($3,086,000.00) in rent under the Lease Agreement. In the event County shall ever refund, rebate or return any such prepaid amounts for any reason during the term of the Lease Agreement, or upon the expiration or earlier termination of the Lease Agreement, Assignee shall promptly tender such amounts to Assignor without offset or deduction. 3. Reversion. Assignee’s interest in the Lease Agreement shall automatically revert to Assignor in the event of any default by Assignee under the Master Lease, which would give County the right to terminate the Master Lease, except to the extent such default arises from the acts or omissions of Assignor, provided Assignee fails to timely cure such default and Assignor elects to effect such cure. 4. Further Assurances. Assignor and Assignee agree to execute such other documents and perfom such other acts as may be reasonably necessary or proper and usual to effect this Assignment, including, without limitation, those agreements described in Section l(c) above. I 5. Governing Law. This Assignment shall he governed by and, construed in accordance with the laws of the State of California. I 6. Successors and Assigns. This Assignment shall be binding upon and shall inure to the benefit of Assignor and Assignee and their successors and assigns. 7. Countemarts. This Assignment may be signed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement. IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment of Lease as of the date first hereinabove written. Assignor: Assignee: PALOMAR TRANSFER STATION, INC., a California corporation Title: Vi ~e ?re sided CITY OF CARLSBAD, a municipal coToration /7 By: Name: Title: 50157086V3 2 Assignment of Lease ~~ ASSIGNMENT OF COUNTY CONTRACT Wl"I PALOMAR TRANSFER STATION ' APN NO. 97-0085-A1 For a valuable considdion, receipt of which is hereby acknowledged, Palomar Transfar Station, Inc., a California corporation, as ASSIGNOR, hereby assigns and transfers to City of Carlsbad, a municipal corporation, ASSIGNEE, ,dl right, title, and interest of the undersigned as.Lessee in and under that ccrtdn Lease known =.the Palomar Transfer Station Lease Agreement, APN # 97-0085-A1 with county of San Diego, Datcd October 3.1, 1997 between the County of Sa Diego, a poli6cd subdivision oftbe State of California, as Lessor,'and Palomar Transfer Station, Inc., a California corporation, as Lessee. ON, INC., a California corporation Dated: June 1,. 2002 Datcd June 1'; 2003 The undersigned Assignee hereby accepts the foregoing assignment and hereby agrees to keep, perform and bc bound by all the terms, covenants, and conditions in said Lease on the part of the Lessee therein to be kept and performed as though the undersigncd Assignee was the original Lessee thereunder. ASSIGNEE: CITY 0 AD, a municipal corporation Dated:' I)UW I! Title: ' MPY or (B/S Auth. 7/30/85 (8)) The COUNTY OF S,AN DIEGO does hcrcby consent 'to tho above assignment. In the event the assignment of this leasehold is not legally consummated within 60 days from thc date upm which the COUNTY OF SAN DIEGO took action consenting to the assignment, this consent shall become automatically void and of no further effect. Dated %,-I, 2002 CATHERME J. County Lease Administrator Recelved May-31-02 DI:l7pm From-6188564801 To-PILLSBURY CAREL VLY PaOe 02 OFFICERS CERTIFICATE PALOMAR TRANSFER STATION, INC. Pursuant to Section 2.02.A. of that certain Agreement for Transfer Station and Disposal Services dated as of June 1, 2002 (the “Agreement”) by and between the City of Carlsbad, a municipal corporation of the State of California, and Palomar Transfer Station, Inc., a California corporation (the “Company”), the undersigned hereby certifies as follows: 1. I am the duly appointed Vice President of the Company. 2. The representations and warranties made by the Company in the Agreement were true and correct as of the date of the Agreement and are true and correct in all material respects on and as of the date hereof as if made on and as of the date hereof. IN WITNESS WHEREOF, the undersigned has executed this Officer’s Certificate as of June 1,2002. rn broso, Vice President ESTOPPEL CERTIFICATE RE: ABSENCE OF LITIGATION City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Re: Palomar Transfer Station, Carlsbad, California Our File No. 014279-0000012 Ladies and Gentlemen: With reference to Section 2.02.B. of that certain Agreement for Transfer Station and Disposal Services dated as of June 1,2002 (the "Agreement") by and between the City of Carlsbad, a municipal corporation of the State of California, and Palomar Transfer Station, Inc., a California corporation, the undersigned does hereby state, declare, represent and warrant, to the best of its knowledge, to, and for the benefit of, the City of Cwlsbad, that there is no litigation pending or threatened in any court which 1. Challenges the award of the Agreement to the undersigned; 2. Challenges the execution of the Agreement; 3. Challenges the Effective Date (as defined in the Agreement) of the Agreement; or 4. Seeks to restrain or enjoin the performance of the Agreement. IN WITNESS WHEREOF, the undersigned has executed this Estoppel Certificate as of June 1,2002. PALOMAR TRANSFER STATION, INC., a California corporation By: Title: 1 70018539V3 Ng3hvilJe '0,: Sogan Baraich COMPANY: 5/30/02 6:39 PAGE 2/4 RightFAX *I.. ' ACORD, CERTIFICATE OF LIABILITY INSURANCE.,,, of I DATE 05/30/2002 PRODUCER 877-559-6769 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 11201 N. TatYn Boulevard Suite 300 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR willi. -rill, -, - ugional ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE INSURERSAFFORDINGCOVERAGE Phoenix, A2 85028 lNSURED Llli-d Nut- Tbtrie., In-. 15880 N. Geeenway-IIlyden (N-d 1-d. cont. Below) Loop, Suit. 100 Soottadale, Ire 85260 INSURERA: American Homr Asmru-oe CO-Y 19380-004 INSURERB: Illimi. NatiDrul b. CO. 1NSURERC:Nrtionrl Union B'im In.. CO. Of Pittmbrug 19445-001 23817-002 INSURERD: In.. Co. of the State of PA 19429-004 THE POLlClESOF INSURANCE LISTED BELOW HAVE BEEN ISSUEDTOTHE INSURED NNAEDABOVEFORTHE POLICYPERIOD INDICATED.NOTWKHSTANDlNG ANY REQUIREMEM. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THlS.CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALLTHE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH P0LICIES.AGGREGATE LlMTS SHOWN MAY HAVE BELV REDUCED BY PAID CLAIMS. I CA5348976 CAS348977 CAS349054 WILY INJURY GARAGEUABIUN 16 AUTOONLY -EAACCIDEM ANYAm OTHERTHAN AUrOONLY: c =CESS u*uLm AGG $ BE1392800 3 OCWR 0 CMMSMADE 1/1/2002 t 5,000,000 t 5,000,000 EACHOCWRRENCE 1/1/2003 AGGREGATE DEWCTIBLE 5 6 B WC5277858 1/1/2002 1/1/2003 E.L.EAW*CL~€NT It 1,000,000 A EL~DlSEAE-EAEMROYEEIS 1,000,000 1/1/2003 1/1/2002 WC5274778 D 1/1/2003 1/1/2002 -277860 OTHER E.LDISEASE-POLICYLIMIT IS 1.000.000 THIS VOIDS AND REPLACES PREVIOUSLY ISSUED CERTIFICATE DATED: 5/23/2002 WITH ID: 1827951 OESCRlPllONOFOPERATlOKSLOCATlOWlVMICLE6mCL~CL~lONSADOED8VMDORSOUEMlSPEUALPROYI~IOHS Named Insured - Pal-r Transfer Station Inc. CERTIFICATEHOLDER I I AODITIONALINSURED: INSURER LElTER: CANCELLATIONN"P.F.- st.tue- SHOULOANVOFTHEAEOVEDESCRl8EOPOUUES BECANCELLED BEFORETHEEXPlRAllON NOllCETOTHECERTIRCAlEHOLDERN*MEOTOTHELEFI.E~F*ILURETODOSOSHALL IMPOSE NO OBLIGATION OR UAEILW OF ANI KINO UPON WE INSURER, ITS AGENTS OR DATE THEREOF, THE !SUING INSURER wu MOEAVOR TO WL X DAYS WRITEN The City of Carlsbad Carlbad, CA 92008 1200 carlsbad Village Drive REPRESEMAllVES. n ACORD 25-S (7/97) Coll:465219 Tpl:56996 Cc 0 ACORD CORPORATION 1988 NashvilJe 'Q:Sogan Baraich COMPANY: 5/30/02 6:39 PAGE 3/4 RightFAX I Workers Compensation - AddifiOMl Policies : I Insurance company Policy X Eff./Exp. Dates Ikmerican E- Assurance WC5277859 01/01/02 - 01/01/03 Employers Liability (Stop Gap) coverage for Monopolistic States is included: $1,000,000 Each Rocident $1,000,000 Dimrase - Policy Linit $1,000,000 Disrasr - Linit Each =plop- IRE: All operations of thc Nancd Insured I The Cit it officers, Direetors, -10 ees volunteers, and agents are additional insured, except for Worfkrs' Conpensation, if required & "kitten contract. IWaiver of subrogation rights apply if required by written contract I any other insurance to the additional insured shall apply as non-contributory insurance. If rrquired by written contract, thr general liability policy will apply as primary insurance and Workers' C-nsation poli has ken endorsedto provide Thirty (30) days' written notice to the AEEisfant City Manager of ze City in the event of cancellation. Ten (10) days' notice for non-payment of prdum. Gene:al Liability and Automobile Liability policies have ken endorsed to provide Thirty (30) the City in event of cancellation, reduction in coverage, or non-rrnewal of the policies. Ten (10 days written notice by certified mail, return receipt requested, to the Assistant City Manager of days' notice for non-payment of premium. Col1:465219 Tpl:56996 Cert:1839480 *..C ~WllllS CERTIFICATE OF LIABILITYlNSURANCEPage z of 3 I 05/30/2002 DATE PRODUCER 877-559-6769 INSURERSAFFORDINGCOVERAGE Ph-ir, AZ 85028 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. suite 300 11201 N. Tat- Boulevard ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR willi. Nor+h TILE, - mgiond mrt -,,tar THIS CERTIFICATE IS ISSUED AS A MATER OF INFORMATION lNSURED Allied warn+- 1nduu.tri-m, TILE. (N-d Tnmd. Con+. Ed-) 15880 N. cr-way-Rayden Scottsdrle, AZ 85260 INSURERA. mrican KDmr Assurance Comp.ny 19380-004 INSURERB. Illinoim National In.. CO. 23811-002 Loop, suit- 100 INSURERD'I~.. CO. of th state of pa 19429-004 1NSURERC:Nationrl Union 85- In.. CD. Of Pittmburg 19445-001 I INSURERE: OESCRlPTlONOFOPERITlONSlLOUTlONUVMlCLESmCLUSlONSlDDEDBYMOORSEMMTRPECIALPROVlSlONS 1) - Nashville 5/30/02 6:39 PAGE 414 RightFAX ‘0.: sog’an Baraich COMPANY : ,. . 1 !?age 3 of 3 IMPORTANT on this certificate does not confer rights to the cetiiicate holder in lieu of such endorsement(s). If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the cetiicate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. KORD 25-S (7/97) Coll:465219 Tpl:56996 Cert:1839480 1 : 5 0.ll t - , 2h COMPANY: Na . - 5/23/02 3:36 PAGE 2/3 RightFAX ACORD, CERTIFICATE OF LIABILITY INSURANCE.,, 1 of 1 04TE PRODUCER 05/23/2002 011-559-6169 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 11201 N. Tat- BOul-ard ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR Willis North Tnc, - Regional ra* antsr THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION o__i" 3"" I -"" Phoenix, AZ 85028 I INSURERSAFFORDINGCOVERAGE ~1 INSURED Allied Wamte Industria., I-. (N-d Inad. Cont. &lox) 15880 N. oeaulway-Haydeo laop, Suit. 100 Scottsdale, le 85260 I I INSURERE: COVERAGES THE POLlClESOF INSURANCE LISTED BELOW HAVE BEEN ISSUEDTOTHEINSURED NAMEDABOYEFDRTHEPOLICY PERIOD INDICATED.NOTWTTHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMEM WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUEJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.AGGREGATELIMITSSH0WNhW.Y HAVEBEEN REDUCED BY PAIDCLAIMS INSR NPEOFINSUR4NCE POLICYNUMB lNSUREo Allied Wamte Industria., I-. - 1NSURERA:National union =ire 1na. co. of Pittmhg 19445-0~1 INSURERB: INSURERC: INSURERD: I INSURERE: 15880 N. oeaulway-Haydeo (N-d Inad. Cont. &lox) laop, Suit. 100 Scottsdale, le 85260 COVERAGES S CERTIFICATE MAY BE ISSUED OR MERC!ALGENER4LU,WLm' 4GGREGATELlMlTWPLlESPER LOWNEOAUTOS SCHEDUCEDAUTOS HIREDAUTOS NONOWEDAUTOS I I NOTICE TO THE CERTIRC4TE HOLDER WE0 TO THE LEFT, BUT FAILURE TO 00 SO SHALL IMPOSE NO OBLlOITlON OR U48lLllT OF 4NY UNO UPON THE INSURER, ITS 4GEMS OR The City of Carl-bad REPRESENT4nVES. n Carlsbad, UL 92008 1200 C-lrbad Village Drive I ACORD 25-S (7/97) Coll:461550 Tpl:94462 Cea&.Z%21947 W 0 ACORD CORPORATION 1988 Na . 3 : Soha -b .Ch COMPANY: 5/23/02 3:36 PAGE 3/3 RightFAX '+- I I IMPORTANT on this certiiicate does not confer rights to the certificate holder in lieu of such endonement(s). If the certificate holder is an ADDITIONAL INSURED, the policy(iis) must be endorsed. A statement If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this cetificate does not confer rights to the certificate holder in lieu of such endorsement@). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a mntract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. PERFORMANCE BOND Bond No. 929237572 KNOW ALL MEN BY THESE PRESENTS, That we, Palornar Transfer Station, Inc. as principal, and the National Fire Insurance Company of Hartford 5960 El Carnino Real Carlsbad, CA 92008 Performance Bond, are firmly bound unto Citv of Carlsbad hereinafter referred to as the Obligee, for such monetary amount as incurred by the Obligee, not to exceed 1200 Carlsbad Villaae Drive Carlsbad, CA 92008 the pnal sum of Two Million Five Hundred Thousand Dollars and 00/100 as may be required to remedy any contractual default by the Principal in the performance of that certak ($2,500,000.00 written contrect between Principal and OMigee dated June 1,2002 for Transfer Station hereiMfter refemd to as the Contract; for the payment hereof, we bind ourselves, our hein, executors, Operation administrators and suctxssors, jointly and severally. CONDITIONS The obligation of this Performance Bond shall be null and void unless: (1) the above Contract is In writing, and has been fully executed by both the Principal and the Obligee; (2) the Principal is actually in default under the above Contract, and is declared by the Obligee thereafter to be in default; (3) the Obliges has written notice of the default to the Surety as promptly as possible, and in any event, within ten (10) days performed all of the obligations of the Obligee under the above Contract; and (4) the Obliiee has provided after wch default. LIMITATIONS AND EXCLUSIONS The Surety, as the sole election and discretion of the Surety, may take any ofthe fullowing actions: a CT corporation, 88 Surely, subject to the Conditions, Limitations and Exclusions ofthis (1) With notice to the OWiee, provide financial assistance to the Principal to remedy any contractual default by the Principal; or, (2) Undertake the completlon of the above Contract by the Surety, through its agents or through independent contractors; or, (3) Determine the amount for which the Surety may be liable to the Obligee, and as soon Bs a practicable thereaffer, tender payment thereof to the Obligee; or, (4) Pay the full amount of the above penal sum in complete discharge and exoneration Of this above penal sum and In reduction of the limit of llabiuty of the Surety. If the Surety so elects to act, all payments and expendturn by the Sum shall k applied against the Performance Bond, and of all liebilities of the Surely relating themto. -2- The obligation of this Performance Bond Shall not include liability for loss. cost, damage, fines, penalties or expense (Including attorney’s fees) from personal injury (including death), or from property damage (including environmental impairment or cleanup), or from any crtminal or tortious act arlsing out of the maintain any polky or undertaking of liability insurance performance, default or completion of the above Contract, nor shall the Surety obligated to provide or This bond Is fw a one year term beginning 1.7002 , In the event of default by the Principal In the pertormMce of the contract during the term of thk bond, the Surety shall be UaMS only for the direct loss to the Obligee due to actual excess costs of performance of the contract up to the termination of thb term of this bond. No suit shall be brought on thb bond after one year folbwing its termination. Neither non-rertewal by the Surety, nor failure or inabiUty of the Principal to file a replacunent bond, shall constitula loss of the Obligee recoverable under thls bond. The bond may be extended for additional terms at the option of the Surety, by continuation certlhte executed by the Surety. The Obligation of thls Performance bond inures solely to the benefit of the obliiee. No right of action shall entity other than the obllgee. In the event that the Obligee is comprised of m than one person, firm acuue under thls Performance Bond to or for the use of any person, firm, corporation, public or private corporation, publk or private entity, the conditions, limitations and exclusions of this Performance Bond shall apply jointly and severally to each and all constituents of the Obligee, and the aggregate liability of the Surety to the Obliee shall in no event exceed the above penal sum. The consent of the Surety shall be required with regard to any changes or alterations in the above Contract Including, but not limited to, where the cost thereof, added to prior changes or altsrstions, causes the aggregate cost of aU changes and alterations to exceed 10 percent of the original contract prk% or whsro the completion thereof is extended by more than 80 days. No tight of action shall acme under this Performance bond unleur demand in brought by suit action or other legal -ding commended against the Surety within one year after the day that the Prindpel laat perfod bbor or supplied material for the above Contract. Any and ell chime and caum of action (including warranty requirement or the remedy of latent defects) not 80 commended shall be deemed exthguiabd and forever barred from action under this Performance Bond. in the event of conNct or inconsistency between the provlrions of this Perfonnonce Bond and the provisions of the above Contract, the provhlons of this Performance Bond $hall control, or the obligation of the surety be deemed null and void to the extent of any enlargement or augmtatbn to the llabilitba Of the Surety prescribed by thi Performance Bond. Signed, Sealed and Dated this 1 st day of June . 2002 Palomar Transfer Station, Inc. National Fire Insurance Company of Hartford At&mey-ln-Fact NOTARIAL ACKNOWLEDGEMENT-PRINCIPAL STATE OF ILLINOIS COUNTY OF DUPAGE On the 1st day of June, 2002, before me, Patricia Kenis, a Notary Public of the State and County aforesaid, residing therein, duly commissioned and sworn, personally came Laura E. Fish, to me known, who being by me duly sworn according to law, did depose and say that she subsidiaries, and that she executed and delivered such instrument on behalf of said corporation resides in Illinois; that she is an Attorney-in-Fact for Allied Waste Industries, Inc. and its as its voluntary act and deed for the uses and purposes therein mentioned. Notary Public PATRICIA KENIS NOTARIAL ACKNOWLEDGMENT - SURETY STATE OF ILLINOIS COUNTY OF DUPAGE On this 1st day of June, 2002, before me, Patricia Kenis, a Notary Public of the State and County aforesaid, residing therein, duly commissioned and sworn, personally came Melissa Newman, to me known, who being by me duly sworn according to law, did depose and say that she resides in Illinois: that she is an Attorney-in-Fact for National Fire Insurance Company of Hartford, the corporation described in and which executed the foregoing instrument: that she knows the seal of said corporation: that it was so affixed by order of The Board of Directors of said corporation and that she signed this name thereto by like order: that she executed and delivered such instrument on behalf of said corporation as its voluntan/ act and deed for the uses and ur oses therein m ntioned. /ep 7, /ti!iiiw 7 ALLIED WASTE A INDUSTRIES, I N C. POWER OF ATTORNEY Allied Waste Industries, Inc., incorporated under the laws of the State of Delaware, and having its chief place of business at 15880 N. Greenway-Hayden Loop, Suite 100, Scottsdale. Arizona, 85260, hereby makes, constitutes and appoints Weible, Cahill & Forker, LLC acting through and by William P.. Weible , William F. Cahill. Molly Moran, Esther C. Jimenez, Patricia J. Kenis. Phyllis Boyd. Laura E. Fish, Kimberley K. Libers or Melissa Newman, its true and lawful attorney and aftix its corporate seal to and deliver for and on behalf as surety thereon or otherwise, bonds of any of the following classes, to wit: 1. Surety bonds and/or bid bonds to the United States of America or agency thereof, including those required or permitted under the laws or regulations relating to Customs or Internal Revenue; license and permit bonds or other indemnity bonds under the laws, ordinances of regulations of any state, city, town, village, board, other body organization, public or private; bonds to transportation companies; lost instrument bonds; lease bonds, worker‘s compensation bonds; miscellaneous Surety bonds; and bonds on behalf of notaries public; sheriffs, deputy sheriffs and similar public ofticials. 2. Surety bonds andlor bid bonds on behalf of Allied Waste Industries. Inc. and its subsidiaries, included, but not limited to, Allied Services, LLC, Allied Waste Systems, Inc. , Allied Waste Transportation, Inc.. American Disposal Services of Missouri, Inc. and BFI Waste Systems of North America, Inc.. BFI Waste Services, LLC in connection with bonds, proposals, or contracts. To sign and seal all bid bonds and surety bonds on behalf of Allied Waste Industries, Inc. and its subsidiaries, relating to the provision of solid waste collection, transportation, recycling, or disposal services by Allied Waste Industries, Inc. and its subsidiaries. Allied Waste Industries, Inc. hereby agrees to ratify and confirm whatsoever Weible, Cahill & Forker, LLC shall lawfully do pursuant to this power of attorney and the procedural guidelines set forth to Weible, Cahill & Company, LLC. and until notice or revocation has been given by Allied Waste Industries, Inc. the acts of the said attorney shall be binding on the undersigned. IN WITNESS WHEREOF this POWER OF ATTORNEY has been signed this 2b+?iay of pthtuoY , on behalf of Allied Waste industries, Inc. by its Vice President, Legal, Mr. Steven M. Helm. 15880 N. Greenway-Hayden loop, Ste 200 I Scottsdale, AZ 85260 / 480.627.2700 , . , . POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-FACT Hartford. a Connecticut corporation, and American Casualty Company of Reading, Pennsylvania. a PennSylVania corporation (herein called ”the CNA Companies”), are duly organized and existing corporations having their principal offices in the City of Chicago, and State of Illinois, and that they do by virtue of thesignatures and seals herein affixed hereby make, constitute and appoint Know &I Men By These Presents, That Continental Casualty Company, an Illinois corporation, National Fire Insurance Company of William P. Weible, Molly M. Moran. William Cahill, Kimberly Sawicki, Deborah Buss, Esther C. Jimenez, Amy E. Callahan. Patricia J. Kenis. Phyllis Boyd. Kimberly K. Libers. Melissa Newman. Laura E. Fish, Individually of their true and lawful Attorney(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute for and on their behalf West Cbicago, Illinois bonds, underiakings and other obligatoly instruments of similar nature - In Unlimited Amounts - and to bind them thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of their corporations and all the acts of said Attorney. pursuant to the authority hereby given is hereby ratified and confirmed. I This Power of Attorney is made and executed pursuant to and by authority of the By-Law and Resolutions. printed on the reverse In Witness Whereof. the CNA Companies have caused these presents to be signed by their Vice President and their corporate seals to hereof, duly adopted, as indicated. by the Boards of Directors of the corporations. be hereto affixed on this 12th day of Februaw, 2002. Continental Casualty Company American Casualty Company of Reading, Pennsylvania National Fire Insurance Company of Harlford .*. Michael Gengler State of Illinois, County of Cook, ss: On this 12th day of FebNaly, 2002, before me personally came Michael Gengler to me known, who, being by me duly sworn, did depose and say: that he resides in the City of Chicago, State of. Illinois: that he is a Group Vice President of Continental Casualty Company. an Illinois corporation, National Fire Insurance Company of Harlford, a Connecticut corporation, and American Casualty Company of Reading, that the seais affixed to the said instrument are such corporate seals; that they were so affixed pursuant to authority given by the Boards of Pennsylvania, a Pennsylvania corporation described in and which executed the above instrument; that he krows the seals of said corporations; said corporations. Directors of said corporations and that he signed his name thereto pursuant to like authority. and acknowledges same to be the act and deed of Group Vice President + DIANE FAULKNER ‘OFFICIAL SEAL’ My Commission Expires Vl17lOS Notory Public, St& of Illinois + + My Commission Expires September 17,2005 Diane Faulkner Nobly Public I, Mary A. Ribikawskis. Assistant Secretary of Continental Casualty Company, an Illinois corporation. National Fire Insurance Company of that the Power of Attorney herein above set forth is still in force, and further certify that the By-Law and Resolution of the Board of Directos of Harlford, a Connecticut corporation. and American Casualty Company of Reading. Pennsylvania. a Pennsylvania corporation do hereby ceriify the corporations printed on the reverse hereof is still in force. In testimony whereof I hav e.&jynto subscribed my name and affixed the seal of the said corporations this 1 t day of ~~lnp. -. CERTIFICATE ~ ~ ~~~ t Continental Casualty Company American Casualty Company of Reading, Pennsylvania National Fire Insurance Company of Harlford Mary A. Ribikawskis Assistant Secretaly (Rev. lO/ll/Ol) 1 2 EXHIBIT A PALOMAR TRANSFER STATION LEASE AGREEMENT ~ 7cQ17373Vl 1 Authorizing By-Laws and Resolutions .. , ADOPTED BY THE BOARD OF DIRECTORS OF CONTINENTAL CASUALTY COMPANY: This Power of Attorney is made and executed pursuant to and by authority of the following By-Law duly adopted by the Board of Directors of the Company. "Article 1X"Execution of Documents Section 3. Appointment of Attorney-in-fact. The Chairman of the Board of Directors. the President or any Executive, Senior or Group Vice President may. from time to time, appoint by written certificates attorneys-in-fact to act in behalf of the Company in the the limitations set forth in their respective certificates of authority, shall have full power to bind the Company by their signature and execution of policies of insurance, bonds, undertakings and other obligatory instruments of like nature. Such attorneys-in-fact, subject to execution of any such instruments and tu attach the seal of the Company thereto. The Chairman of the Board of Directors, the President or any Executive, Senior or Group Vice President or the Board of Directors, may. at any time, revoke all power and authority previously given to any attorney-in-fact." This Power of Attorney is signed and sealed by facsimile under and by the authority of the foliowing Resolution adopted by the Board of Directors of the Company at a meeting duly called and held on the 17th day of February, 1993. be affixed by facsimile on any power of attorney granted pursuant to Section 3 of Article IX of the By-Laws, and the signature of the 'Resolved. that the signature of the President or any Executive, Senior or Group Vice President and the seal of the Company may Secretary or an Assistant Secretary and the seal of the Company may be affixed by facsimile to any certificate of any such power and any power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certified by certificate so executed and sealed shall, with respect to any bond or undertaking to which it is # attached, Continue to be valid and binding on the Company." ADOPTED BY THE BOARD OF DIRECTORS OF AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA This Power of Attorney is made and executed pursuant to and by authority of the following By-Law duly adopted by the Board of Directors of the Company. "Article VC-Execution of Obligations and Appointment of Attorney-in-Fact Section 2. Appointment of Attorney-in-fact. The Chairman of the Board of Directors. the President or any Executive, Senior or Group Vice President may. from time to time, appoint by written certificates attorneys-in-fact to act in behalf of the Company in the execution of policies of insurance, bonds, undertakings and other obligatory instruments of like nature. Such attorneys-in-fact. subject to the limitations set forth in their respective certificates of authority, shall have full power to bind the Company by their signature and execution of any such instruments and to attach the seal of the Company thereto. The President or any Executive, Senior or Group Vice President may at any time revoke all power and authority previously given to any attorney-in-fact." This Power of Attorney is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of the Company at a meeting duly called and held on the 17th day of February. 1993. 'Resolved, that the signature of the President or any Executive, Senior or Group Vice President and the seal of the Company may be affixed by facsimile on any power of attorney granted pursuant to Section 2 of Article VI of the By-Laws, and the signature of the any power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so Secretary or an Assistant Secretary and the seal of the Company may be affixed by facsimile to any certificate of any such power and executed and sealed and certified by certificate so executed and sealed shall. with respect to any bond or undertaking to which it is attached, continue to be valid and binding on the Company." ADOPTED BY THE BOARD OF DIRECTORS OF NATIONAL FIRE INSURANCE COMPANY OF HARTFORD: This Power of Attorney is made and executed pursuant to and by authority of the following Resolution duly adopted on February 17, 1993 by the Board of Directos of the Company. "RESOLVED: That the President, an Executive Vice President, or any Senior or Group Vice President of the Corporation may. from time to time, appoint. by written certificates, Attorneys-in-Fact to act in behalf of the Corporation in the execution of policies of insurance. bonds, Undertakings and other obligatory instruments of like nature. Such Attorney-in-Fact, subject to the limitations set forth in their respective certificates of authority, shall have full power to bind the Corporation by their signature and execution of any such inStNment and to attach the seal of the Corporation thereto. The President, an Executive Vice President, any Senior or Group Vice President or the Board of Directors may at any time revoke all power and authority previously given to any Attorney-in-Fact." @ This Power of Attorney is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of the Company at a meeting duly called and heid on the 17th day of Februaly, 1993. "RESOLVED: That the signature of the President, an Executive Vice President or any Senior or Group Vice President and the seal of the Corporation may be affixed by facsimile on any power of attorney granted pursuant to the Resolution adopted by this Board of affixed by facsimile to any certificate of any such power. and any power or certificate bearing such facsimile signature and seal shall be Directors on February 17. 1993 and the signature of a Secretary or an Assistant Secretary and the seal of the Corporation may be with respect to any bond or undertaking to which it is attached, continue to be valid and binding on the Corporation." valid and binding on the Corporation. Any such power so executed and sealed and certified by certificate so executed and sealed, shaii EXHIBIT A LEASE AGREEMENT [Attached] PAL- .TRREISFER STATION LEASE AGREEMENT MCCLELLAN-PAL- AIRPORT CARLSBAD , CALIFORNIA I LESSOR: THE COUNTY OF SAN DIEGO LESSEE: PAL- TRANSFER STATION, INC. PARCELS: APN1, 97-0085-Al COUNTY COEPPRACT NO. 0 INDEX ARTICLE 1 . SUMMARY OF BASIC LEASE.PROVIS1ONS ........ 1 1.1 Lessor ....................... 1.2 Lessee 1 1 1.3 Premises and Property ............... 2 1.4 The County's and Lessee's Lease Administrators . . ' 2 1.5 Term ....................... 2 1.6 Effective Date ................... 2 1.7 Intentionally Omitted ............... 2 1.8 Rent ....................... 2 1.9 General Description of Lessee's Use of Premises . . 2 1.10 Definitions ................. #. .. 2 1.11 Exhibits To Lease .............. 1.12 Construction of Lease Provisions ........ i .... L 3 3 2.1 Description ..................... 4 2.2 Mineral Rights .................. 4 2.4 Lease Subordinate to Conditions and Restrictions 2.3 Reservations to the County/Easement Reservations' . 4 Imposed by public Agencies onAirport Operations . 4 ...................... ARTICLE 2 . WE OF PRFKCSES ................ 4 ARTICLE 3 . TERM OF LEASE AND FIRST RIGBZ...M. ACQUIRE TH&- ........................ ................... 0. PREMISES 5 3.2 surrender of the Premises; Quitclaim of lessee.‘.^ .*. 1 3.3. Term; Definitions 5 3.3 Early Termination by the County 6 Interest Upon Termination 6 3.4 First Right to Acquire the Premises ........ 6 ARTICLE 4 . RENT ...................... 7 ............. .......... 4.1 Prepaid Rent ................... 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 ("COLA") to the Base Rent Payable Monthly During Option Periods .... 8 4.6 Consumer Price Index ............... 9 4.2 Base Rent for Option Periods ........... 7 ARTICLE 5 . CONDITIONS PRECEDENT TO EFFECTIVENESS OF LEASE 5.1 Conditions Precedent to Effectiveness of Lease . . 9 ARTICLE 6 . POSSESSION AND USE ................ 10 6.1 Permitted Uses ................... 10 6.2 Duties and Prohibited Conduct ........... 10 6.3 Compliance with Laws ............... 11 6.4 Substance Abuse .................. 12 6.5 Control of Premises ................ 12 ARTICLE 8 . ~CHANIcs' LIENS ................ 8.1 Mechanics' Liens ................. 8.2 Contest of Lien .................. 8.3 Right to Cure ................... 8.4 Notice of Lien ................... 0.5 Notice of Nonresponsibility ............ 12 13 13 13 13 13 13 ARTICLE 9 .. SECURITY .................... 14 ARTICLE 10 . IMPROVEMENTS; PERSONAL PROPERTY; FIXTUTUlS; MINOR ALTERATIONS ........ 10.1 Improvements .................. 10.2 Construction Requirements .. ' .......... 10.3 The County's Costs; Indemnity .......... 10.4 Personal Property ................ 10.7 Minor Alterations ................ ARTICLB.11 . TAXES. ASSESSMENTS AND FEES ......... 10.5 Fixtures .................... 10.6 Signs and Lighting ................ 11.1 Responsibility for Payment of Taxes and 11.2 Definition of .Taxesw ................... ............... Assessments 11.3 .Creation of Possessory Interest ......... 12.1 Acceptance of Premises ............. 12.2 Lessee's Repair and Maintenance Obligations ... 0 ARTICLE 12 . REPAIRS; MAINTENANCE ............. .......... 12.4 Right to Enter 12.3 Lessee's Failure to Maintain 12.5 County Not Obligated to Repair or Maintain; .................. Lessee's Waiver of California Civil Code Section 1942 ...................... ARTICLE 13 . INDEMNITY AND INSURMCE ........... 13.1 Indemnity .................... 13.2 Insurance .................... 13.3 Indemnity .................... ARTICLE 14 . CONTAMI!XANTS ................. 14.1 Environmental Laws . Definition ......... 14.2 Contaminants, Leachate and Landfill Gas . Definitions ................... 14.4 Indemnifications Regarding Contaminants, Leachate 14.5 Remedies Cumulative; Survival 14.6 Inspection ................... 14.3 Lessee's Representations and Warranties ..... ................ and Landfill Gas .......... . 14 . 14 . 14 . 15 . 15 . 15 . 16 . 16 . 16 . 16 . 16 . 17 . 17 . 17 . 17 . 18 . 18 . 18 . 19 . 19 . 19 . 19 . 20 . 20 . 20 . 20 . 22 . 22 . 22 ARTICLE 15 . ASSIGNMENT. SUBLEASING AND ENCUMBRANCING .... 22 0 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 16.6 The County's security Interest 32 16.5 Fixtures ahd Personal Property 31 16.7 Lessee's Waiver ................... 32' 16.8 Interest ..................... 32 .......... .......... ARTICLE 17 . DEFAULTS BY THE COUNTY; REMEDIES ........ 32 ARTICLE 18 . ABANDONMENT .................. 33 (1 ARTICLE 19 . BANKRUhCY ................ : .. 33 19.2 Request for Information 1 34 ARTICLE 20 - DAMAGE OR DESTRUCTION .............. 34 ARTICLE 21 . EMINENT DOMAIN ................. 35 ARTICLE 22 . SALE OR MORTGAGE BY THE COUNTY ......... 36 . 19.1 Right of Termination ............ , , . y. 33 .............. 22.1 Sale or Mortgage ................. 36 ARTICLE 23 . SUBORDINATION: A'I1TO-Z ........... 36 23.1 Subordination 36 23.2 Attornment .................... 36 ARTICLE 24 . COUNTY'S RIGHT OF ACCESS. ............ 36 24.2 Lessee Waivers Regarding County Access ...... 37 0 .................... 24.1Accesa ...................... 36 ARTICLE 25 . QUIET ENJOYMENT ................. 37 ARTICLE 26 . HOLDING OVER .................. 37 ARTICLE 27 . NOTICES .................... 38 27.1Notices ...................... 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 ~3.795771.~~ iii WlU4 ARTICLE 32 . GENERAG PROVISIONS ............... 40 32.1 Authority 40 32.2 Brokers ...................... 40 ..................... 32.3 Captions 40 32.4 The County Approval ................ 40 32.5 Cumulative.Rmedies ................ 41 32.6 Entire Agrement ................. 41 32.7 Estoppel Certificate ............... 41 32.8 Exhibits ..................... 41 32.9 Force Majeure ...... ............. 41 32.10 Governing Law .................. 42 32.11 Interpretation .................. 42 32.13 Lessee's Lease Administration ....... .I . . 42 32.15 Modification I. 42 32.14 Liquidated Damages ,. 42 32.16 Partial Invalidity ............. .I . ":, 42 32.17 Payments ..................... 43 32.18 Successors & Assigns ............... 43 32.19 Time of Essence .................. 43 32.20 Waiver ...................... 43 . " ..................... ....... 32.12 Joint and Several Liability . ,. .. 42 ............. .. ................ ... EXHIBIT A: DESCRIPTION AND PLAT OF THE PREMISES EXHIBIT B: 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 A(1) : Comprehensive General Liability Insurance A(3) : Required Liability Policy Coverage A(2): Commercial General Liability Insurance A(4) : Additional Insured Endorsement A(5) : Primary Insurance Endorsement A(6): Form of Liability Insurance Policies B: All Risk Fire Insurance B(2): Rental Income Insurance B (1) : Deductible B(3) : Loss Payee B (4) : Proceeds of Insurance C: Comprehensive Autornobile/Aircraft /Watercraft D: Statutory Workers' Compensation and Employer's E: General Provisions ~(1) : Certificates of Insurance E (2) : Claims Made Coverage Liability Insurance Liability Insurance iv E(3): Failure to Obtain or Maintain Insurance; the E(5): Notice of Cancellation or Change of Coverage E(4): No Limitations of Obligations E (7) : Review of Coverage E (6) : Qualifying Insurers E(9) : Sublessee's Insurance E (6) : Self -Insurance E(10) : Waiver of Subrogation County' s Remedies EXHIBIT F: THE COUNTY OF SAN DIEGO REQUIRED SUBLEASE PROVISIONS V PALOMAR TRANSFER STATION LEASE AGREPdENT made and enterL-d...into e$.fective as of October 31, 19.97.; by and THIS PALOMAR TRANSFER STATION LEASE AGREEMENT ("Lease") is between theL-..OI: SAI( DIEM,' a political subdivisl&+a the State of California (the "County"), STATI~~:,-IN&?-~ California corporation ("Lessee") . and the pM dg& . . .. IN CONSIDERATION OF THE RENTS AND COVENANTS set forth in, leases from the County, the Premises described in Article 1 this Lease, the County hereby leases to Lessee, and Lessee hereby terms and conditions: (SUMMARY OF BASIC LEASE PROVISIONS) below, upon the following ARTICLE 1 SVMMARY OF BASIC LEASE PROVISIONS I 1.1 LessOK: THE COUNTY OF SAN DIEGO, a politlical' subdivision of the State of California Address for notice: Director Department of General Services Building 2 5555 Overland Avenue San Diego, California 92123 with a copy to: Assistant Deputy Director - Aviation 1960 Joe Crosson Drive El Cajon, California 92020 1.2 Lessee: Palomar Transfer Station, Inc. Address for notice: ., i San Diego, California 92111 8364 Clairmont Mesa Boulevard Attention: Mr. Jim Ambroso with a copy to: Allied Waste Industries, Inc. Suite 100 15880 N. Greenway-Hayden Loop Scottsdale, Arizona 85260 Attention: Jo Lynn White, Esq. 1 WIWJ approximately 10.697 acres described on Exhibit A (DESCRIPTION 1.3 Premises and Prouertv: The Premises means that incorporated in this Lease. The term "Property", as used herein, premises, the parking lots and any parking structures appurtenant includes the Premises, all buildings and improvements to the to the buildings, and such other facilities, structures and improvements located thereon. AND PLAT OF PREMISES) attached hereto and by this reference 1.4 The COUXltv's and Lessee's Lease Administrat0 Lease shall be administered on behalf of the County by the r&: This Director, Department of General Services, The County of San Diego, or by such person's duly-authorized designee refeyred to Administrator"), and on behalf of Lessee by Mr. Jim Ambroso, or collectively in this Lease as vhe County's Lease by such other person as may be designated in writing by Ipessee referred to in this Lease as "Lessee's Lease Administratorn); 1.5.. m- ,..- The term ,of this Lease shall be &\@&-f s%F<j5 Y!; yeax@tha "Initial' Term"), . comnencing on the Bffec lve- 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 Datr: See Section 3.1, 'Term; Definitionam. 1.7 Intentioaallv OmittQd. 1.8 &at: The Three Million Eighty-six Thousand "Prepaid Rent"), which amount will 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, 'Term; Definitions., the Base Rent for each month during the applicable Option Period (as defined below) shall be determined pursuant to Section 4.4, "Rent Adjustment at Conrmencement of Each Option Period" and Monthly Rent During Option Periods" shall be payable on the first Section 4.5, 'Cost of Living Adjustments ("COW") to the Base calendar day Of each month. 1.9 General Descriution of Lessee's Use of Premisra: Lessee shall use the Premises solely for th.e,uses specified in this Lease, generally described as the offke aerations of a terms shall have the meanings attached to them in this Section unless otherwise apparent from their context: 1.10 Definitiona: As used in this Lease, the following 0 w-mm1.n 2 OWlm9l a. b. C. d. e. f. Carlsbad, California. "Airport" means McClellan-Palomar Airport, "Assistant Deputy Director - Aviation" means the Assistant Deputy Director - Aviation, of the Diego, or upon written notice to Lessee, such Department of Public Works, the County of San other person as shall be designated from time-to- time by the Board. "Board" means the Board of Supervisors of the County of San Diego. "FAA" means the Federal Aviation Administrqtion. Industrial Areas Development Standards andithe,, "Standarda means the MCClellan-Palomar Airport McClellan-Palomar Airport Industrial and Aviatlon Areas Performance Standards attached as mibit C and Wablt ' p .hereto. "ALP" means the FAA-approved Airport Layout plan for McClellan-Palomar Airport. .. provisions are attached hereto as exhibits and made a part of 1.11 Exhibits To Lease: The following drawings and special 0 this Lease: EXHIBIT 4 - Description and Plat of the Premises. EXHIBIT B - FAA Requirements EXHIBIT C - McClellan-Palomar Airport Industrial Areas Development Standards. EXHIBIT- McClellan-Palomar Airport Industrial and Aviation Areas Performance Standards. EXHIBIT E - Insurance Requirements. EXHIBIT F - The County of San Diego Required Sublease Provisions 1.12 constru ction of Lease Provisioqa: 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. Ul.79Jlll.W 3 Dllllrn ARTICLE 2 LEASE OF PREMISES PRECEDENT TO EFFECTIVENESS 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 Propertym above. 2.1 Descrintion. Subject to Article 5 (CONDITIONS Lease to the contrary, the County hereby expressly reserves all mineral and water deposits located upon or beneath the surface of rights, title and interest in.and to any and,all gas, oil, premises at any time during the Term for the purpose of operating the Premises. The County shall have the right to enter Ithe or maintaining such drilling or other.installations as npy be mineral or water deposits. necessary or desirable for the development of any such gas, !oil, 2.2 Mineral Riuhtg. Notwithstanding any provision of this 2.3 Reservations to the Co Lessee accepts the Premises subject to any and all existing untv/Easement Reservatk. easements ana 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 0 whether or not such facilities directly or indirectly benefit th-e deems necessary for public health, convenience and welfare, premises, and to enter the Premises for any such purpose; :equire that the Premises be restored to their preexisting condition; and, pro not materially interfere with Lessee's continued operation of the vided, further, however, that such grant does Premises. rovided, howevex, any such grant of rights by the County shall 2 .I 8- Lea Imnosed bv Public Auencies on Aimort &eratioM. 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 governing 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 and subject to the terms, conditions, restrictions and other Lessee's occupancy of the Premises are expressly made subordinate Administration specifically set forth in Exhibit B and Lessee provisions of those requirements of the Federal Aviation shall be bound by all such reauirements. TEFS OF LEASE AND FIRST RIGHT TO ACQUIRE TEE PREMISES ARTICLE 3 3.1 Term; Definitioa. EFFECTIVENESS OF LEASE), this Lease shall be effective as of the Lease shall commence on the "Effective Date" and shall continue "Effective Date" as defined below and the term ("Term.) of this BASIC LEASE PROVISIONS), unless sooner terminated as provided in thereafter for the period specified in Articlo 1 (SUXMRY OF this Lease. As used in this Lease, the nR22a~tiyo.D8toa means mutually agreed upon) following the date,on which the laref 06 thd following oCcur~-7collectively,' the".C~rSab.d~~Lc,~8.o Conditionsg):~::.' (fT:thO expiration or eariier'termination f that certain Industrial Lease Agreement (Airports) dated as o e October 21, 1997, by and between the County and"'tbe: CiEz'of'' Carlsbad;. and; Carlsbad (2) the surrender. a,ndcbdEit.. .and was~re vacatioq Manag.ement., of ... the Premises.-by-~~e~"City of Incy Within fifteen (15) business days following the Effective Date, the County and Lessee Except as otherwise specifically stated in this Lease or in any shall confirm the actual date of the Effective Date in writing. Lease shall remain in effect following any extension, renewal or subsequent amendments hereof, the terms and conditions of this holdover of the original Term. a. Subject to Article 5 (CONDITIONS PRECEDENT TO thirty (30) business days (or upon such :e~~~~e~~~~.dat.~s~y be . . . ," ..., have fourteen (14) successive oEtions (each, an b. Subject to the terms of this exten&~tlf?"TEi%"by five (5)""yiarii"per"dptlo~ (each, an "Option Period.) ; pro exceed ninety-five (95) years in the aggregate. An Option shall vided, howevex, that in no event shall the Term be exercisable by Lessee only if Lessee (i):?8WeS"dawyonY which Lessee exercises the Option and as of the commencement date I Acj?eemW'(and Lessee agrees that, if Lessee has failed to make I ,,uddi& any payment required under this Lease, after any applicable notice and cure period provided in this Lease, it shall not be in 57 is. as of t e ate on which Lessee exer'cises an Option and as of solid~aa~~f~~~~~:~nc~~,,the,~Bffhc€i~~ si-; and (iii) "material compliance") ; (ii) ~~r~-fh~~Pramise~~~~~~yae- a- the Option Period relateh to such tfie",Premise~,,.~r~~r~~~y;.a~ :a..solld.wast& option no morctlla:o& 'year 'and.no lese~. th~:*'dijl. (6:)~. &nth# notify the County of its irrevocable election to exercise the before the expiration of, with respect to the first Option, the applicable Option Period. Upon the proper and timely exercise of Initial Term or, with respect to all other Options, the then an Option by Lessee in accordance with this Section, the Term shall be extended for the applicable Option Period and the terms 0 and provisions Of this Lease shall remain in full force and effect during such Option Period. 3.2 ' Furrender of the Premises: Ouitclaim of Lessee's Interest vvon Termination. a. Lessee shall surrender possession of the Premises of this Lease. Upon termination of this Lease for any reason, to the County upon expiration of the Term or earlier termination including but not limited to termination because of default by Lessee, Lessee shall execute, acknowledge 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 quidclaim deed to the County, the County may prepare and record a dotice reciting the failure of Lessee to do so, and such notice hall be conclusive evidence of the termination of this Lease and %f all right of Lessee or those claiming under Lessee to the Premises. b. Should the manner or method employed 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 amount 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 to which Lessee is entitled in such an action. 0 shall constitute a stipulation by Lessee fixing .the total damages 3.4 First Riuht to Acauire the Premise@. Subject and subordinate to the first right of refusal granted to the City of Transfer Station Settlement Agreement (as defined in the Purchase Carlsbad, its successors and assigns, pursuant to the Palomar Agreement), if, during the term of this Lease, the County proposes to sell the Premises, or any portion thereof, and provided Lessee is not in default under the tenns of this Lease not in default at an time during the following negotiation at the time such proposal to sell is made by County and Lessee is see first right (-Pirat Right-) to' ire..the.Premises or that portion of the ~PrdseW'COUnt~: proposes to sell. 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 County's intent to sell the Premises. (30) days after Lessee has received written notice from County of 0 within thirty (30) days after Lessee has received written notice b. If the County receives written notice from Lessee 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 frqm Lessee of Lessee's exercise of its First Right, Lessee's First Right shall terminate and the County may take any action it.deems necessary in the sale of the Premises. During said period of negotiations, Lessee and County shall nFgotiate in good faith. I d. The negotiation of a sale of the Premises krom the county to Lessee is subject to appronl by the Federal +Viation Administration and without such approval, the terms of tkjis :, Section 3.4 (FIRST RIGHT TO ACQUIRE THE PREMISES) are null an& void. ARTICLE 4 RENT 4.1 peDaid 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 payment must be made on or before the first calendar day of each Rent for each option' Period. shall' k& determined purs&T'f_8 calendar month during the applicable Option Period. Period... '.wr Section .-4:4, 'Rent, Ad ustment at .,C~enc.~~,~~-~~~~~~,~~~ e?%&~E~o$,..Liring : .,...'F Adjastment8--.(~*~OL&~~) to -. **>*~-,- the Bane Monthly' liekt &i&g optido..PUi~g.i... :. 4.3 PaVments 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, California 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 Oution Period. 4.4.1 pirat oution Period. Base Rent payable monthlv for the first Oution Period shall be adjusted to an amount shall, subject to the provisions of this Section 4.4.1, "First Option Period., be determined by an appraisal performed by six (6) months prior to the expiration of the then-current Option instructions. Such appraisal shall be performed no later than of the appraiser, the instructions to the appraiser or on the Period. If the part.ies are not able to agree on the designat,ion appraiser's conclusions, the matter shall be submitted to binding arbitration pursuant to the provisions of the California Code of Notwithstanding the foregoing provisions of this Section 4.4.1, Civil Procedure, or such 8uccessor codes or statutes. "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 (.COLAn) to the Base Rent During Option monthly Consumer Price Index, as hereinafter defined, for the Periods", where (i) "An equals $23,000; (ii) "Bn equals the month of arch hediately preceding the commencement of.the first Option Period; and (iii) "C" equals the monthly Consumer Price Index, .as hereinafter defined, for the month of March immediately preceding the commencement of the Initial Term. a mutually acceptable appraiser pursuant to mutually acceptable 4.4.2 Option Period, which shall be governed by Section 4.4.1, 'Pirat -aPcrioda. Except for the first Option Period., at the comaencement of each Option Period, the Base Rent shall be adjusted to an amount equal to the fair market rent for the Premises; , however, that in no event shall (32) greater or more than'seven percent (72) percent greater than the Base Rent for 'the month immediately preceding the conmiencement 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 instructions. 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 appraiser or on the appraiser's conclusions, the matter shall be the designation of the appraiser, the instructions to the submitted to binding arbitration pursuant to the provisions of the California Code of Civil Procedure, or such successor codes or statutes. 0 , the Base Rent for any ggE&iod be less than three percent: . Payable Monthly Durinu On 4.5 Cost of Livinu Adiustment ("COLA") to the Base Rent monthly during each Option Period shall be adjusted as of the tion Periods. The Base Rent payable first (1st) anniversary of the commencement of each Option of the applicable Option Period (each such one-year period is Period, and thereafter every year on such date for the remainder referred to herein as a 'COLA Period.), to reflect any increase in purchasing power by use of the following fOrmUh: a OUlM P. 91 ".* eWniS che monr.hly Ccnoumer Price Inawx, I8 heralpzcar dcCi3ed. far che utonth of Itarch imodiatmly prccading ma adjumcedt an4 cmanccmenc of chc COLA Drriod far which tna rcnt Is 5dng JPflnCd, :or the month zr mrch immediately prooudlng tha cOmmcncemenC of the chen-current. Option Period. ahall be ueed am thc anurce for the Conowner Price Indrx numbers ohall be that publlshcd by the UnlLOO Scacen Dnpartmsnt of Labor, Entitled Waited btatea %pacement of Labor, Buraau of Labor staciaflcm, Convurnrr Prieo Index cor ch. LOW AU rlcm-&nnaheim-- Rlvarwida Area (1982-84 - loo). If such index H not published for tho Low nngelee-nnahelm-Rivcr.ide Araa, then anDthW comparable index or source at ouch infanmeion gmaraliy rccopniowQ am ruchoritacivo mhall b. oubwtisuced by rgrmesnenc at the parrier. IT. the prticu ahould not agreo, mucn mourcw of provision3 3s rhe California COne 0: Civil Prcccdur.. information ohall be detarminod by arblrratlm pursuunc to tha "C" fiqunle the monthly Conauner Price Index, am hwrulorfr.or I ", 4.6 pd Om Inda. The COnWUNr PXiC. indPX whish - ., 9 P. ea ". wwnt shall the county ne entitled to lwaao Ch+ 2rwnlmrm LO another cnclry for uee as a tranafmr mt8tion; and c. Ae of rho date en wnich cne lamc of the Carlobad Lease Cor.ditionm OCCurm. Lem.mm shall be in mataria1 ComplianC* with ctla term6 and prcvisicnm or rnm ourchaaw Agreement !am ds;ined bmLow1 and che tlocinca executed ia ccnnwction cncrwwich. thereof, in a good, safe and sanitary condition, free from any for the permitted uses specified above. Lessee shall deposit all objectionable noises or odors, except as may be typically present Lessee and located in the areas designated by the County. Lessee trash and rubbish of Lessee only within receptacles provided by 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 County's sole discretion. Any such signs or antenna installed the County, which consent the County may give or withhold in the without such written consent shall be subject to removal without notice at any time, at Lessee's expense. Nothing in this Section shall be deemed to preclude Lessee from erecting and maintaining safety, warning or directional signs, of ireasonable dimensions, which are not used for advertisement of goods or services; statutes and ordinances. provided, however, all such signs must 'conform to appliyble 6.3 Comoliancc with Lave. a. Lessee, at Lessee's sole expense, shall procure, maintain and hold available for the County's inspection any governmental license or permit required for the proper and lawful . conduct of Lessee's business. Lessee shall not use the Premises for any use or purpose in violation of the laws of the United States of America, or the laws, ordinances, regulations and requirements of the State of California, the County of San Diego authorities. Lessee shall, at Lessee's expense, comply promptly with all applicable statutes, laws, ordinances, rules, regu'lations, orders, covenants and restrictions of record, and Lessee of the Premises. The final judgment of any court of requirements in effect during the Term, regulating the use by competent jurisdiction, or the admission of Lessee or any sublessee or permittee in any action or proceeding against them or any of them, whether or not.the County is a party to such act'ion 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 ronclusive as to that fact as between the County and Lessee. 0 or the city where the Premises are situated, or of other lawful b. Notwithstanding any other provision of this Lease to the contrary, Lessee shall be responsible for payment of all Disabilities Act of 1990 ("ADA") (42 USCS §§ 12101-12213), Title costs of complying with the requirements of the Americans with 24 of the California Code of Regulations ("Title 24") and California Civil Code § 54.1 as they may apply to the Premises. Lessee's obligations under this Section shall include, without and thereafter maintaining such compliance, with the requirements limitation, all costs of bringing the Premises into compliance, of Title I11 of the ADA ("Title 111") (42 USCS §§ 12181 - 12189) applicable during the Term to public accomodations and UI-)ernl.y? 11. Wlvn commercial facilities, irrespective of whether or not the particular requirements of such compliance (i) are specifically also be required of the County under Title I1 of the ADA ("Title 11") (42 USCS 50 12131 - 12165). 0 required by Lessee's intended use of the Premises, or (ii) may c. Lessee shall, with regard to the Property, assume all obligations placed on the County pursuant to any existing or future industrial stormwater permit or existing or future construction permit including, but not limited to, preparation of any required Notices of Intent or Stormwater Pollution Prevention plans for so long as this Lease is in effect. 6.4 ssbstance Abuse. Lessee and its employees and *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 drug, or folt tEq beverages or any. "controlled substance," precursor or analog transporting, keeping, manufacturing or giving away alcoholic specified in Division 10 of the California Health and Safety Code, and violation of this prohibition shall be grounds for immediate termination of this Lease. . purpose of unlawfully selling, serving, using, storing, 6.5 Control of Premises. Failure of Lessee to exercise control of the use of Premises to conform to the provisions of this Article shall constitute a material. breach of tkeM&ea -...ad such shall be grounds for termination. ARTICLE 7 UTILITIES fo; its. use and occupancy of. the. Premises durciiy-. tlie Tenti; " including but not 1imited"fo gas, water, electricity, trash, sewtr/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 County shall have the right, at no charge from Lessee, to connect resulting from an interruption of any of these services. The 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 construct and service such to pay any additional service fees or charges assessed by any governmental agency, or public or private utility company, for the County's use of such connections; and, provided, further, however, that such connection does not materially interfere with Lessee's continued operation of the Premises. ' connections; prw ided, howevey; Lessee shall have no obligation 0 12 ARTICLE 8 XECRANICS' 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 Premises, Lessee shall cause the lien to be discharged of record connection with any such work. If any lien is filed against the within ten (10) days after it is filed. Lessee shall indemnify, defend and hold the County harmless from any and all liability, account of claims of lien of laborers or materialmen or others loss, damage, costs, attorneys' fees and all other expenses,on or persons claiming under Lessee. for work performed or materials or supplies furnished for Lessee 8.2 Contest of Lien. If Lessee shall desire to codest any lien filed against the Premises,.it shall furnish the County, within the ten-day period following filing of the lien, sdcur4ty reasonably satisfactory to the County of at least one hundred fifty.percent (150%) of the mount of the lien, plus estimated costs and interest, or a bond of a responsible corporate surety in such mount, conditioned on the discharge of the lien. If a final judgment establishing the validity or existence of a lien for any mount is entered, Lessee shall immediately pay and satisfy the same. 8.3 Riaht to Cure. If Lessee shall be in default in paying 0 any charge for which a mechanics' lien claim and suit to County security to protect the property and the County from foreclose the lien have been filed, and shall not have given the 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 reasonable attorneys' fees incurred in connection therewith, shall be immediately due and owing frm with interest at the rate specified in Section 16.8, .Intereat" Lessee to the County, and Lessee shall pay the same to the County from. the date(s) of the County's payments. against the Premises or any action against the Premises or any party receiving notice of such lien or action shall immediately action affecting the title to such property be commenced, the give the other party written notice thereof. 8.4 potice of Lien. Should any claim of lien be filed 8.5 p-y representatives shall have the right to go upon and inspect the and keep posted thereon notices of nonresponsibility or such Premises at all reasonable times and shall have the right to post protection of The County's interest in the Premises. Lessee other notices which the County may deem to be proper for the shall, before the commencement of any work which might result in any such lien, give to the County written notice of its intention . The County or' its 0 to do so in sufficient time to enable posting of such notices. , security of the Premises, and the County shall have no' Lessee shall be responsible for and shall provide for the responsibility therefor. Lessee shall constxuct 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 County prior to construction. In the event the northerly boundary of prolongation of Faraday Road, Lessee shall move, at Lessee's sole the Premises is adjusted for the construction of the easterly within thirty (30) days following the completion of Faraday Road expense, said security fencing, gates, walls and/or barriers along the northerly boundary of the Premises. ARTICLE 10 PIPROVEkENTS; PERSONAL PROPERTY; FIXTURES; MINOR ALTgRATIONS I 10.1 Iwrovements. Lessee may, at Lessee's own expense, from time to time make such nonstructural (whether permanent or , temporary) alterations, replacements, additions, changes, or improvements (collectively referred to in this Lease as "Improvements") to the Premises as Lessee may find necessary or convenient for its purposes; w; Premises~:~I~~~~~~ther~-d.~~hed, and further provided that, vef, ths value of-. tb Improvements, no such^ Improvements may &.made without obtaining, be unreasonably withheld. tn no event shall Lessee make or cause the. prior ,%I tten ... appxo~va&qt the'Couaty$' which consent shall not to be made any penetration into or through the roof or floor of any structure on the Premises or make any other structural 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 with the normal operation and use of the Airport by the County, construction operations so that such operations do not interfere the public and other persons and organizations entitled to use of the same. with respect. .t..o...any.~t~~~:~~-~non.st~c~u~~.~ 10.2 -I. All Improvements to be made to the Premises shall be made under the supervision of a competent architect or licensed structural engineer and made in conformity with any present or future ALP and Aviation Area Development Standards which are or may be adopted by the Board and the FAA, and with plans and specifications approved in writing by the County before commencement of any work. In sets of working drawings or plans showing the planned connection therewith, Lessee shall provide a minimum of three (3) Improvements, for the County's approval, prior to comencing work. All work with respect to any Improvements must be done in w-7Prnl.W 14 WIu07 a good and workmanlike manner, comenced within ninety (90) days following receipt Of approval therefor from the County, and 0 diligently prosecuted to completion to the end that the Premises work. Upon completion of such work, Lessee shall have recorded shall at all times be a complete unit except during the period of in the office of the. San Diego the County Recorder a Notice of Completion, as required or permitted by law, and Lessee shall deliver to the County, within ten (10) days after completion of permit with respect thereto. Within sixty (60) days following said work, a copy of the Notice of Occupancy and the building completion of an Improvement, Lessee shall provide the County with two (2) complete.sets of "as-built. plans of such Improvement. Upon the expiration or earlier termination of this Lease, such Improvements shall not be removed by Lessee but shall become a part of the Premises. Any such Improvements shall be performed and done strictly in accordance with'the laws and ordinances relating thereto. the County for all actual and documented reasonable out-of-pocket 10.3 The Countv's Costs: Indenmi-. Lessee shall reimburse costs and expenses (including, without limitation, any architect or engineer fees) incurred by the County in approving or disapproving Lessee's plans for Improvements. Lessee shall be liable for and shall indemnify and defend the County from any claim, demand, lien, loss, damage or expense, including reasonable attorneys' fees and costs, arising from Lessee's construction or installation of any Improvements pernitted under 0 this Article. - following Section 10.5, .Fixtures., all of Lessee's trade property not permanently affixed to the Premises (collectively fixtures, furniture, furnishings' signs and other personal referred to as "Personal Property" in this Lease) shall remain the property of Lessee. Lessee shall, at its expense, imediately repair any damage occasioned to the Premises by reason of the removal of any such Personal Property. 10.4 Personal Prouertu. Subject to the provisions of-the 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 Co'unty upon expiration or earlier termination of this Lease. Notwithstanding Fixtures at Lessee's own expense upon termination of this Lease. the foregoing;the County may require Lessee to remove any Any.damage to the Premises occasioned thereby shall be repaired by Lessee in a good and worbnlike 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 County may remove, sell or destroy the same, and Lessee shall pay to the 10.5 Fixture@. All Improvements constructed by Lessee, or UI.~W~I.V? 15 (IUIVOI County the reasonable cost of such removal. sale or destruction, together with the reasonable cost of repair of damages to the therefrom. . County’s property or improvements or to the Premises resulting 10.6 Si-8 and Lishtinq. Lessee shall not constnxt nor permit the erection of any signs on the Premises without the prior written approval of the County. 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 (MCCLELWLN-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 (XCCLELUN-PALOMAR ‘MRPORT INDUSTRIAL AND AVIATION U PERPORMANCE STAIJDARDS) and to any laws or ordinances of governmental agencies having juriqdict$on Over the Premises. ‘ ‘I 10.7 Minor Alterations. 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 through the roof or floor of any structure on the Premises, and which do not 0 The County shall be the sole judge of whether or not any involve the construction of any new structures on the Premises;ia. alteration or improvement is a Minor Alteration. ARTICLE 11 TAXFS, ASSESSMENTS AND PEES , 11.1 pesuonsibilitv for Payment of Taxes and As sessmenu. The County shall not be obligated to pay any taxes or assessments accruing against Lessee on the Premises or any interest of Lessee therein before, during or after the Term, or any extension thereof; all such payments shall be the sole responsibility of payment of any taxes or assessments levied upon any Improvements, Lessee. In addition, Lessee shall be solely responsible for extent that such taxes or assessments result from the business or Fixtures or Personal Property located on the Premises, to the 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, governmental bonds, special assessments, Mello-Roos assessments, charges, rent .income or transfer taxes, license and transaction fees, including, but not limited to, (i) any state, local, federal, personal or corporate income tax, or any real or personal property tax, (ii) any estate inheritance taxes, (iii) any franchise, succession or transfer taxes, a (iv) interest on taxes or,penalties resulting from Lessee's 0 to the sale Of Lessee's leasehold interest in the Premises. failure to pay taxes, or (v) any increases in taxes attributable 11.3 Creation of Possessom 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 taxes. Lessee shall pay all such taxes when due, and shal1,not allow any such taxes, assessments or fees to become a lien against the Premises or any improvement thereon; prohibit Lessee from contesting the validity of any such kax. assessment or fee in a manner authorized by law. I howevell;, nothing in.this Lease shall be deemed JiRTICLE 12 REPAIRS; MAINTENANCE I "( 12.1 Scceotance of Premia-. 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; rovided, howevs, that the foregoing shall not be constged as the acceptance by Lessee of any liabilities for Pre- Closing Leased Facilities Environmental Conditions (as defined in county 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. 0 the Purchase Agreement). Lessee further acknowledges that the shall at all times from and after the Effective Date, at its own cost and expense, repair, maintain in good and tenantable condition and replace, as necessary, the Premises and every part thereof, including, without limitation, the following as applicable: the roof; the heating, ventilation and air meters, pipes, conduits, equipment, components and facilities conditioning system; ,mechanical and electrical systems; all (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 maintenance, alteration, improvement or reconstruction as may be thereof); floor coverings; and all such items of repair, required at any time or from time to time by a governmental agency having jurisdiction thereof. Lessee's obligations under 12.2 Gessee's Repair and Maintenance Obliaatioqa. Lessee 17 this Article shall apply regardless Of whether the repairs, restorations and replacements are ordinary or extraordinary, 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 order, condition and state of repair, but shall not be Premises, Lessee shall deliver the Premises to the County in good responsible for damages resulting from ordinary wear and tear. Lessee shall provide for trash removal, at its expense, and'shall maintain all trash receptacles and trash areas in a clean, orderly and first-class condition. The County shall have no responsibility or liability for any of t,he obligations set forth in this Section. foreseeable or unforeseeable, capital or noncapital, or the fault 12.3 Lessee's Failure to Maintab. If Lessee refuses or neglects to repair, replace, or maintain the Premises. or any part thereof, in a manner reasonably satisfactory to the County, the County shall have the right, upon giving Lessee reasonable written notice of its election to do so, to make such repairs or perform such maintenance on behalf of and for the account of 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- frora the I) date(s) of the County's payments. 12.4 Right to mter. Lessee shall permit the County, or its authorized representatives, to enter the Premises at all times during usual business hours to inspect the same, and to perform any work thereon (a) that may be necessary to comply with any laws, ordinances, rules or regulations of any public authority, deterioration in connection with the Premises if Lessee does not (b) that the .County may deem necessary to prevent waste or 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 or renovation of any the County-constructed or owned facilities connection with the expansion, reduction, remodeling, protection 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 f.or any injury or inconvenience occasioned thereby. 12.5 countv Not Oblisated to Repair or Maintain: Leaaee'q I) To the extent that U3-l9S77l.W 18 OUIU97 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 §1942"), the provisions of this Lease shall control. Lessee specifically waives any right it may have pursuant to CC 51942 to effect maintenance or repairs to the Premises and to abate the costs thereof from rent due to the County under this Lease. INDEMNITY AND INSURANCE ARTICLE 13 Lesser. Except for indemnification 13.1 Indemnitv bv 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 govern, the County shall not be liable 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 County, its employees, representatives, agents, consultants, officers, supervisors. successors and assigns from and against any and all claims, demands, liability, judgments, awards, fines, mechanics' of any kind or character, including actual attorneys' fees and liens or other liens, losses, damages, expenses, charges or costs , or in connection with, or caused by, directly or indirectly, court costs (collectively referred to as "Claimsn), arising from Lease (excluding therefrom any Retained Liability (as defined in (i) any breach or default by Lessee of its obligations under this the. Purchase Agreement), (ii) any act, omission or negligence of Lessee or any subtenant of Lessee, or their respective contractors, licensees, invitees, agents, servants or employees, (iii).any use of the Premises, or any accident, injury, death or damage to any person or property occurring in;on or about the or any other portions of the Property used by Lessee, and Premises, or any part thereof, or any service delivery facilities contractors or agents, including, without limitation, Claims (iv) any labor dispute involving Lessee, its employees, caused by the concurrent negligent act or omission, whether active or passive, of the County or its agents; Qrwided, however, Lessee shall have no obligation to defend or indemnify willful or criminal act of the County or its agents; the County from Claims caused solely by the gross negligence or obligations to the County, Lessee shall provide and maintain, 13.2 Insurance. Without limiting Lessee's indemnification during the Term and for such other period as may be required in this Lease, at its sole expense, insurance in the amounts and form specified in Exhibit E (INSURANCE REQU1,REXENTS) attached hereto. 13.3 Indemnitv bv the County. Except for indemnification 0 related to Contaminants (as defined in the Purchase Agreement), Leachate (as defined in the Purchase Agreement) and Landfill Gas 1.~3mn1.m 19 Wlvn (as defined in the Purchase Agreement), with respect to which the not be liable for, and only to the extent permitted by,applicable provisions of the Purchase Agreement shall govern, Lessee shall law, the County shall defend, indemnify, protect and hold harmless Lessee, its employees, representatives, agents, consultants, officers, supervisors, successors and permitted assigns from and against any and all Claims arising from or in connection with, or caused by, directly or indirectly, (i) any breach or default by the County of its obligations under this Lease, excluding therefrom any Assumed Liabilities (as defined in Lessee or Allied (as defined below) is required under the ' the Purchase Agreement) and any items with respect to which any gross negligznce or willful or criminal act of the County or Purchase Agreement to assume or indemnify the County; and (ii) obligation to defend or indemnify Lessee from Claims caused its agents; provided, however, the County shall have no I I Lessee or its agents. solely by the gross negligence or willful or criminal act of the ' I !'( CONTAMINANTS, LEACHATE AND IhDPILL GAS ARTICLE 14 Section, the term "Environmental Laws" has the mqaning set forth 14.1 Environmental Laws - Definition. As used in this in the Purchase Agreement. ~s used in this Sectik,Lthe terms nContami-:z.k; %ea=t?kd Agreement. 14.2 Contaminant eachate and Landfill - Def "Landfill Gas. have the meanings set forth in theRuechassr represents and warrants that, during the Term or any extension 14.3 pessee's Revresentations and Warranties. Lessee thereof, or for such longer period as may be specified in this Lease. Lessee shall c~.witp__t~_bn~~~.~~~~~~!'of this' Section ~I~~~o~h~~,~~~e?ciffcallp apprwed in writing. by the Coimty's Lease- Admin%atr&d: a. Lessee .,#myq&?3cau*e.> or: pc.dt' any. cmtdnant-@', . ~ .. ~. --.:... ._F Leachate. or Landf %TlY&a.~'to> be broughtr kept or used in or about assigns, contractors or invitees, except as permitted by the Premises by Lessee, its agents, employees, sublessees, Environmental Laws and except as required by Lessee's permitted use of the Premises, as described in Section 6.1 (PERWITTED USES) . -.-y_.* or usage by Lessee of Contaminants, Leachate or Landfill Gas that is to occur on the Premises following the Effective Date shall be in compliance with all applicable Environmentaf' Laws-) b. Any handling, transportation, storage, treatment c. Any leaks, spills, release, discharge, emission or disposal of Contaminants, Leachate or Landfill Gas which may LA3-79ITIl.vI 20 WIrn 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 appropriate governmental regulatory authorities; 0 promptly reported in writing to the County, and to any'other d. No friable asbestos shall be constructed, placed on, deposited, stored, disposed of, or located by Lessee in the Premises or on the Property; e. No underground improvements, including but not limited to treatment or storage tanks, or water, gas or oil-wells shall be located by Lessee. on the Premises or on the Property without the County's prior written consent, which consent shall not be unreasonably. withheld; I I f. Lessee shall conduct and complete all remedial, removal, and other actions necessary to clean up anh investigations, studies, sampling, and testing procedures, and all 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 promptly supply the County with made by Lessee to the United States Environmental Protection copies of all notices, reports, correspondence, and submissions 0 Agency, the United Occupational Safety and Health Administration, and any other local, state or federal authority which requires hazardous wastes or substances pursuant to applicable submission of any information concerning environmental matters or Environmental Laws; 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 (i) twenty (20) days following such filing, or (ii) before any governmental authority conunences proceedings to sell the Premises pursuant to the lien, Lessee shall either: (a) pay the claim and remove the lien from the premises, or (b) furnish either (i) a bond or cash deposit reasonably satisfactory to the County in an amount not less than satisfactory to the County in an amount not less than that which the claim from which the lien arises, or (ii) other security is sufficient to discharge the claim from which the lien arises; and h. Lessee shall prorqtly notify the County of any the premises to the County free of any and all Contaminants, Leachate.and Landfill Gas and in compliance with all Environmental Laws affecting the Premises, except with respect to Pre-Closing Leased Facilities Environmental Conditions. i. At the end of this Lease, Lessee shall surrender u3.79rn1.w 21 WlMl Landfill Gas. The indemnification responsibilities of Lessee and the County relating to Contaminants, Leachate and Landfill 14.4 Inden~nifications Regarding Contaminants. Leachate and 0 Gas shall be as set forth in the Purchase Agreement. 14.5 Remedies Cumulative': Survival. The provisions of this Article shall be in addition to any and all obligations and liabilities Lessee may have to the County at common law, and any. Article shall survive the expiration or'termination of this remedies and the environmental indemnities provided for in this Lease, the transfer of all or any portion of the Premises or of any interest in this Lease, and shall be governed by the laws of the State of California. 14.6 Ins~ection.. The County and the County's agents, servants, and employees including, without limitation, legal counsel and environmental consultants abd 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 obligations set forth in this Article, and to perform Premises to determine whether Lessee is complying with Lessee's hours (except in the event of an emergency) or during such other environmental inspections and samplings, during regular business .. hours as the County and Lessee may agree. If Lessee is not in compliance, the County shall have the right, in addition to the 0 upon the Premises inmediately and take such action as the County county's other remedies available at law and in equity, to enter in its sole judgment de- appropriate to remediate any actual or The County will use reasonable efforts to minimize interference threatened contamination caused by Lessee's failure to comply. with Lessee's use of Premises but will not be liable for any interference caused by the County's entry and remediation efforts. Upon completion of any sampling 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. ARTICLE 15 ASSIGNMENT, SUBLEASING AND EWCOMBRANCING 15.1 The Countv's Consent to Transfer Rewired. 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 interes! in this Lease witl@&? th$ Corn= (I prior written consent, which that Lessee acknowledges and agrees that the County's denial of consent for a reason listed in Section 15.2.2, "Denial of Consent County may withhold its consent until Lessee has complied with to ~ransfer" shall conclusively be deemed reasonable). The consent shall not be- unre-a~on~3j;ry~..w~~~e~~~,( v, ..~~. ., ded, howevey, u3-79m1.m 22 oVIU97 attempted Transfer without the County's consent shall, be void and the provisions Of the following Sections of this Article. Any shall constitute a material breach of this Lease. As used herein, the term "Transfer" shall include (i) an arrangement and licenses) that allows the use and occupancy of all or part of (including without limitation management agreements, concessions, the Premises by anyone other than Lessee, and (ii) 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 Countv's Electioq. Lessee's request for consent to any Transfer shall be accompanied by a written sta-tement setting forth the details of the proposed Transfer, including (i) ,the name, address, business, business history and financial condition of the proposed assignee or sublessee (collectively, "Transferee") sufficient to enable the County to determine th financial responsibility and character of the Transferee, (iif 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 and (iv) any other related information which the County may sublease), (iii) the Transferee's proposed use of the Premiges, withhold consent to the Transfer, if reasonable: (b) to grant reasonably require. The County shall have the right: (a) to consent; or (c) to terminate this Lease for the portion of the, premises affected by any proposed sublease or assignment, in proposed sublessee or assignee. 0 which event the County may enter into a lease dirsatly with the 15.2.1 Consent to Transfer. The County's consent to an assignment or sublease will not be effective until (i) a fully executed copy of the instrument accomplishing a Transfer ("Transfer Instrument") has been delivered to the County, encumbering Lessee's leasehold and the note secured thereby, (ii) including, without limitation, a copy of any trust deed original of the executed sublease (which sublease must' contain in the case of a sublease, the County has received from Lessee an the provisions described in Exhibit F (MCCLSLLAN-PAL- AIRPORT - TBE COUNTY OF SAN DIEGO REQUIRED SUBWE PROVISIONS)) and, written instrument in which the assignee has assumed and agreed (iii) in the case of an assignment, the County has received a to perform all of Lessee's obligations under this Lease. Any rights acquired by a Transferee pursuant to any Transfer and restriction set forth in this Lease and to all of the rights Instrument shall be subject to each and every covenant, condition 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 Instrument, the provisions of this Lease shall Control. u~.nml.v~ 23 Wlvn @ denies its consent to a proposed Transfer, and if Lessee shall so 15.2.2 Denial of Consent to Transfer. If the County 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 County's consent may be satisfied if the County fails to prwide a statement of a to the proposed Transfer was withheld unreasonably; &&@:Liurdcn reasonable basis for withholding.-its' consent within a reasonable time after-Lessee's request therefor. Notwithstanding any of the foregoing provisions of this Section to the contrary, the following shall be deemed to be reasonable grounds for the County California civil code Section 1951.4: to withhold consent to a Transfer for purposes of compliance with sublessees are in default as to any term, covenant or of this Lease, whether or not notice of default has the County. I (a) Lessee or any of its successors, asspus or I (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 Lease. financial condition of the prospective assignee or sublessee. (c) The County reasonably objects to the (d) All of the terms, covenants and conditions of the assignment or sublease, including any consideration therefor, have not been disclosed in writing to the County. (e) Any construction of improvements commenced by Lessee has not been completed to the satisfaction of the County unless the assignee or sublessee assumes, to the reasonable satisfaction of the County, the obligation to complete such construction. below. If Lessee believes that the County has unreasonably withheld its declaratory judgment that the County has unreasonably withheld consent to a Transfer, Lessee's sole remedy will be to seek a its consent or an order of specific performance or mandatory any right to recover damages or to terminate this Lease. injunction requiring the County's consent. Lessee will not have (f) Nonpayment of the Transfer Fee described Transfer which consists of the grant of a deed of trust or 15.3 Encumberina the Leasehold Estate with a Mortaaae. Any 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 ul.7oml.Y: 24 DulU97 ..... provisions Of this Article pertaining to the conclusion and approval of other Transfers, and shall also be subject to the 0 additional termS and conditions set forth below: (a) NO Mortgage granted by Lessee shall encumber the fee title to the Preinises at any time; (b) Inmediately 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 written request for delivery to the County of a copy of any the Office of the Recorder, San Diego the County, California, a notice of default and of any notice of sale under such Mortgage, as provided by the statutes of the State of California pertaining thereto. 15.3.1 Curable and Noncurable Defaults Under the has consented to a Mortgage encumbering Lessee's leasehold as Lease; the Countv's Covenant of Forbearance. Where the County 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 Beneficiary Of such Mortgage takes the following actions: during the periods specified in this Section so long as the Beneficiary shall have the right to begiwforeclosvsaiproceedings and to obtain possession of Lessee's interest in'thcrsramises+.so long as Beneficiary complies with the conditions set forth below: a. If a curable breach of the Lease occurs, a,", (1) Cures Lessee's default within the same time period allotted to Lessee for cure of such default, plus an 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; proceedings to foreclose on or recover possession of the proceedings to completion with due diligence and continuity; and leasehold, and thereafter prosecutes the .remedy or legal (3) Institutes immediate steps or legal the leasehold shall be either (i) sold upon foreclosure pursuant (4) Keeps and performs, during the period until Mortgage (such period being referred to hereinafter as the to the Mortgage, or (ii) released or reconveyed pursuant to 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 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 complies with the conditions set forth below: after receipt of the County‘s notice of Lessee’s default, of its intention to effect this remedy; (1) Notifies the County, within ten (10) days (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 payment of all rent, taxes, assessments, utility charges and requiring the payment of money, including, without limitation, and which become due during the Foreclosure Period. insurance premiums required by this Lease to be paid by Lessee within the time period allowed for such cure in this Lease, no c. If Lessee fails to cure any curable default 0 under this Section shall reinstate Lessee in good standing under cure by a Beneficiary of any such default in the manner allowed applicable to Lessee, the Beneficiary shall fail or refuse to this Lease. If, following expiration of the cure period, if any, conqjly with any or all of the conditions of this Section applicable to Lessee’s default, including failing to expeditiously obtain title to Less&’s: leasehold, then the County shall be released from its covez.zzit cf,forbearance hereunder, and may immediately terminate this Lease. Ootion to Purchase. Any Beneficiary who acquires title to the leasehold estate shall inunediately provide the County with written notice of such transfer. Notwithstanding any 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 trustee‘s fees and costs of sale, if any, but excluding (i) any fees, penalties or late charges assessed by Beneficiary against Lessee, and (ii) any rent or other payments made by Beneficiary under the purchase by delivering written notification thereof to a tern of the Lease. The County may exercise such option to Beneficiary at any time within thirty (30) days following the 15.3.2 Transfer of Leasehold Estate: the Countv8s Ul-~J77l.VI 26 WlM7 r) acquisition of title to the leasehold. County's receipt of written notification of the Beneficiary's option to purchase the leasehold within the period described above, then, subject'to the provisions of Sections 15.4, Merger," below, and so long as the Beneficiary shall have "Transfer fee," 15.5, "No Release of Lessee,. and 15.6, 'No 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: (i) attachment, execution of or other judicial Lessee, (iii) judicial appointment of a receiver or similar levy upon the leasehold estate, (ii) assignment of creditors of officer to take possession of the leasehold estate 02 th? , under any chapter of the Federal Bankruptcy Code. ?my further Premises or (iv) filing any petition by, for or against Lessee transfer of the leasehold estate, however (whether by a I 1 ;I, Beneficiary or by a third-party bidder acquiring the estate at a foreclosure sale), shall be subject to the following conditions: a. Should the County elect to not exercise its (1) The provisions of Section6 15.1, "The County's Consent to Assignment Required," and 15.2, The Coputy.6 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, 0 the entire leasehold estate and covenants with'the Countzyreo be the Transferee of such further Transfer assumes this Leasr:.as to' bound hereby. 15.3.3. Prticle Controllinq. In the event of any provision of this Lease, this Article shall control. conflict between the provisions of this Article and any.other set forth in this Article, the County shall have no obligation to any'.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 any right or claim against the County on behalf of Lessee or any Beneficiary. 15.3.4 Failure to Give Notice. Except as expressly 15.4 Transfer Pee. 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 Transfer Fee shall be delivered to the County concurrently with Lessee's request for consent. release or change Lessee's primary liability to perform all 15.5 No Release of Lessee. No permitted Transfer shall obligations of Lessee under this Lease, except to the extent the 0 Lease is terminated as described above. The County's consent to any subsequent Transfer. If Lessee's Transferee defaults under one Transfer shall not be deemed to imply the County's consent to this Lease, the County may proceed directly against Lessee without pursuing remedies against the Transferee. The County may by Lessee's Transferee, without notifying Lessee or obtaining its consent to subsequent assignments or modifications of this Lease under this Lease. consent, and such action shall not relieve Lessee's liability 15.6 No Mereef. No merger shall result from a Transfer pursuant to this Article, Lessee's surrender of this Lease,.or a mutual cancellation of,this Lease in any other manner. In any such event, the County may either terminate any or all subleases or succeed to the intt'rest of Lessee thereunder. 15.7 Aooroval of Temuorarv or Lhited Activities bv -. Notwithstanding any provision of this Article to the without charging a Transfer Fee, give written authorization for contrary, the County, may, at his or her sole discretion.Iand1 the following activities on the Premises: (i) .activities of a temporary nature, not to exceed one hundred twenty (120) calendar days, and (ii) activities of a limited nature which do not exceed ten (10) hours per week. Lessee shall maintain, on aq appcwed the County form, a listing of all such activities approved by the County, stating the nature, duration and other relevant matters regarding such activities, and shall make such form available to the County for inspection upon request. Nothing herein shall Lessee shall be responsible for insuring that any such activity approved by the County complies with all of the provisions of this Lease. Fmy such temporary or limited activity shall be notification thereof from the County. subject to imediate termination upon delivery of written I ' the relieve Lessee from its responsibilities under this Lease, and DEFAULTS BY LESSEE8 THE COUNTY'S RBKEDIES ARTICLE 16 .. following shall constitute a default by Lessee and a breach of 16.1 Events of Default. The occurrence of any of the this Lease: (a) Failing or refusing to pay any amount due to the.. County when due in accordance with the provisions of this Lease; premises in accordance with the provisions of this Lease; (b) Failing or refusing to occupy and operate the .. (c) Failing or refusing to perform fully and promptly any covenant or condition of this Lease, other than those specified in subparagraphs (a) and (b) above, the breach of which Lessee is capable of curing after reasonable notice from the (dl Maintaining, codtting or permitting on the @ unlawful purpose, or assigning or subletting this Lease in a Premises waste, a nuisance, or use of the Premises for an manner contrary to the provisions of this Lease; (e) The occurrence of any of the events set forth in Section 19.1, "Right of Termination," below. 16.2 Noticce. Following the occurrence of any of the defaults specified in the preceding section, the County shall and the provisions of this Lease breached and demanding that give Lessee a written notice specifying the nature of the default specified in the subparagraphs below or quit the Premiseq and Lessee either fully cure each such default within the time period 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 days ; (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 writing, commences cure of the default within said time period, to have cured such default if Lessee so notifies the County in actually completes said cure; and and thereafter diligently and in good faith continues with and 0 Lessee a written notice specifying the nature .of..the default and the provisions. of this Lease breached and the County shall have:,?:. subtenant, quit the Premises within five.!S) working days. the right to demand in said notice that Lessee, and any . . To the extent permitted by applicable State law, the time periods provided in this Section for cure of Lessee's defaults under this Lease or for surrender of the Premises shall be in lieu of, and not in addition to, any similar time periods described by California law as a condition precedent to the comencement of legal action against Lessee for possession of the Premises. (c) For a noncurable default, the County. shall give% 16.3 Tbc Countv's Riahts and Remedies. Should Lessee fail to cure any such defaults within the time periods specified in the inmediately preceding Section, or fail 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 California law: and Lessee's right to possession of the Premises and to reenter the Premises, take possession thereof and remove all persons (a) The right of the County to terminate this Lease @ the Premises under this Lease; therefrom, following which Lessee shall have no further claim on (b) The right of the County without terminating this Lease and Lessee's right to possession of the Premises, to and on account of Lessee and to collect any unpaid rents and reenter the Premises' and occupy the whole or any part thereof for other charges, which have become payable,. or which may thereafter become payable pursuant to Civil Code Section 1951.4; or (c) The right of the County, even though it may have preceding subparagraph (b) of this Section, to elect thereafter reentered the Premises in accordance with the immediately to terminate this Lease and Lessee's right to possession'of the Premises. I Should the County have reentered the Premises under the provisions of subparagraph (b) of this Section, the Countb ,&all not be deemed to have terminated this Lease, the liability of Lessee to pay rent or other charges thereafter accruing, or Lessee's liability for damages under any of the provisions hereof, by any such reentry or by any action, in unlawful detainer or otherwise, to obtain possession of .the Premises, unless 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 pursuant to the unlawful detaioer statutes 0 of the State of California 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 taking possession of the Premises as aforesaid, the County shall have the right, but not or any part.of the buildings or structures placed on the Premises the obligation, at Lessee's expense, to remove therefrom ti) all by Lessee. or its agents, and (ii) any or all merchandise, Fixtures or Personal Property located therein and to place the Lessee. The rights and remedies given to the County in this same in storage at a public warehouse at the expense and risk of 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. 1 16.4 The~ountv.8. Should the County terminate this Lease and Lessee's right to possession of the Premises pursuant preceding Section, the County may recover from Lessee as damages to the provisions of subparagraph (a) or (c) of the immediately any or all of the following: that had been earned at the time of such termination; (a) The worth at the time of award of any unpaid rent 0 which the unpaid rent that would have been earned after (b) The worth at the time of award of the amount by termination until the time of award exceeds the amount of such rent loss Lessee proves could have been reasonably avoided; 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; (C) The worth at the time of award of the amount by (dl Any other amount necessary to compensate 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 likeiy to result therefrom, including, without limitation, any costs or expense incurred by the County in (i) retaking possession of the premises, including reasonable attorneys' fees therefor, (ii) maintaining or preserving the Premises after such default, (iii) preparing the Premises for reletting to a new tenant, including repairs or.alterations to the Premises for such reletting, (iv) leasing cdssions, and (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 California. 0 As used in subparagraphs (a) and (b) of tdis Sectlon, the "worth at the time of award' .is computed by allowing interest at " the maximum rate allowed by California Law.. As used in subparagraph c of this Section, the "worth at the time of award..^''' the Federal Reserve Bank of San Francisco at the time of award is computed by discounting such amount at the discount rate.of plus one percent (1%). purposes of calculating any amount due under the provisions of All rent, other than monthly Base Rent shall, for the subparagraph c of this Section, be computed on the basis of the average monthly amount thereof accruing during the inmediately preceding sixty (60) month period, except that, if it becomes period has occurred, then such rent shall be computed on the necessary to compute such rent before such a sixty (60) month basis of the average monthly amount hereof accruing .during such shorter period. Lessee's default, all of Lessee's merchandise, Fixtures and 16.5 Fixtures and Personal Prouerty. In the event of personal Property shall remain on the Premises and, 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. 0 performance of any and all of Lessee's obligations under this 16.6 The County's Security Interest;. To secure Lessee's Lease, Lessee hereby grants the County an express first and 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 accrue to Lessee by reason of the destruction or damage such property. Lessee waives the' benefit of all exemption 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'and place of the sale. The County shall have the right to become 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 may request. required by the applicable Uniform Comercial Code as the County 16.7 Lessee's Waiver. Notwithstanding anything to the extent permitted under law) any written notice (other than such . contrary contained in this Article, Lessee waives (to the fullest notice as this Article specifically requires) which any statute or law now or hereafter in force prescribes be given Lessee. Lessee further waives any and all rights of redemption under any existing or future law in the event its eviction from, or the County reenters and takes possession of the Premises in a lawful manner. dispossession of, the Premises for any reason, or in the event provisions of this Lease which are not paid when due shall bear 16.8 Interest. Any amounts due from Lessee under the discount rate charged from time to time by the Federal Reserve interest at the rate of four percent (4%) per annum over the Bank (San Francisco office), but not to exceed the maximum rate which the County is permitted by law to charge. ARTICLE 17 DEFAULTS BY TEE COUNTY; REXXDIES any of the terms, covenants, or conditions contained in this . If the County shall neglect or fail to perfom or observe 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, default after written notice thereof, then the County shall be if the County shall fail to proceed diligently to cure such liable to Lessee for any and all damages sustained by Lessee as a result of the County's breach; grwided, howeveg, (a) except with respect to the County's indemnification obligations and except if the County defaults under this Lease by granting any interest in 0 the Premises to another party during the term hereof or by entering the Premises, in either case in a manner not permitted 0 by this Lease (and in all of the foregoing situations described in this clause (a), the "Net Income" limit described herein shall not apply), any money judgment resulting from any default or other claim arising under this Lease shall be satisfied only out of Prepaid Rent, if auring the Initial Term, and, thereafter, out of the Base Rent ("Net Income" f.or 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 any further action, suit, claim or demand, in law or in equity, insufficient to satisfy such judgment, Lessee will.not instltute agai.nst 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 obsenre such terms, covenants or extent permitted under law, any right to satisfy said modeb ~ I conditions at the County's expense. Lessee hereby waives, to,,the judgment against the County except from Net Income and agrees that on any action for damages, Lessee is limited to recovering punitive damages. its actual damages.and may not recover any consequential or ARTICLE 18 ABANDONKENT 0 during the term of this Lease. If Lessee shall;- Lessee shall not vacate or abandon the Premises at any time . .." ?h or surrender the Premises, or be dispossessed by.procesw.mS.'lau; or otherwise, any Personal Property or Fixtures belonging.to Lessee and left on the Premises shall, at the option of the dispose of said Personal Property and Fixtures in any manner County, be deemed abandoned. In such case, the County may provided by California law and is hereby-relieved of all liability for doing so. These provisions shall not apply if the premises should be closed and business temporarily discontinued therein on account of strikes, lockouts, or similar causes beyond the reasonable control of Lessee. ARTICLE 19 BANKRUPTCY 19.1 Riaht of Terminatioq. Should any of the following events occur, the County may terminate this Lease and any interest of Lessee therein, effective with the comencement of the event: a. Proceedings are instituted whereby all, or substantially all, of Lessee's assets are placed in the hands of " a receiver, trustee or assignee for the benefit of Lessee's creditors, and such proceedings continue for at least thirty (30) days ; UI.V~I.VI 33 administrative process to execute on, attach or otherwise seize b. hy creditor of Lessee institutes judicial or 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 Bankruptcy Code or for an order or decree of insolvency or reorganization or rearrangement under any state or federal law, and is not dismissed within thirty (30) days. my assignee pursuant to the prwisions of any bankruptcy law shall be deemed without further act to have assumed all Qf the obligations of the Lessee under this Lease arising on or dfter the date of such assignment. Auy such assignee shall upyn demand execute and deliver to the County an instrument confirminq such assumption. I 19.2 -forInformation. Within ten (10) days after the County's request therefor, Lessee shall provide the County and any mortgagee or proposed mortgagee of the County, as the information concerning any of the events described in this County shall specify, such financial, legal and business I Article as the County shall request. DAMAGE OR DESTRUCTION ARTICLE 20 improvements be damaged by fire, flood or any other peril, Lessee shall restore such Fixtures, Personal Property or improvements to substantially the same condition as they were in %!mediately preceding such damage or destruction. In the event of a total destruction of the Premises so that the Premises are rendered unusable, either party shall have the right to tenninate this. Lease. 20.1 Casualty. Should the Fixtures, Personal Property or reconstruction of the Premises reauired of Lessee pursuant to 20.2 Construction Provisions. In the event of &y this Article, Lessee shall, to th; extent of avail-able insurance proceeds, repair or rebuild such improvements to substantially or destruction. the same condition they were in 'immediately preceding such damage 20.3 . ... f Rent. Lessee shall not be entitled to any compensation or damages frcm the County for loss of use of property, or any inconvenience or annoyance occasioned by such the whole or any part of the Premises, Fixtures and Personal damage, reconstruction or replacement. Lessee hereby waives any statutoxy rights of termination which may arise by reason of any a partial or total destruction of the Premises. LAJ.l9J77l.YI 34 Dulyn ARTICLE 21 EMINENT DOXAIN eminent domain proceedings by a party other than the County, or; 21.1 Condemnation. If all of the Premises is taken under and the part taken substantially impairs the ability of Lessee to if less than all of the.Premises is taken under such proceeding use the remainder of the Premises for the purposes permitted by this Lease, then either the County or Lessee may terminate this possession by delivery of written notice of such election within Lease as of the date that the condemning authority takes twenty (20) days after such party has been notified of the taking or, in the absence thereof, within twenty (20) days after the condemning authority shall have taken possession. 21.2 2. If this Lease is not terminated by the County or Lessee, it shall remain remaining, and : in full force and effect as to any portion of the Premises the part is taken by the public entity as to the part of the premises that is taken; .. (a) This Lease will end as of the date possession of 0 (b) Lessee is not entitled to the return of any prepaid rent; and (c) At its cost, Lessee shall resfor.mao much.%ef-Ythe remaining portion of the Premises as is required to create a site substantially suitable 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 loss of Fixtures that Lessee was entitled to remove and moving condemning authority for damages legally due to it (such as the expenses) only so long as Lessee's award does not diminish or otherwise adversely affect the County's award. 21.4 pllocation of Condemnation Award for a Total Takinu of proceeds from the sale made under the threat of the exercise of the Premises. All awards for the total taking of the Premises or whether made as compensation for diminution of value of the the power of eminent domain shall be the property of the County, damage; provided, howevpr, Lessee shall be entitled to any award leasehold estate, for the taking of the fee, or as severance for (i) the value of Lessee-constructed improvements minus depreciation by that percentage per year which is derived by dividing 100 years by the length of the initial Term, and (ii) personal property. Notwithstanding the foregoing, any amount of loss of or damage to Lessee's trade fixtures, and removable condemnation compensation due to Lessee pursuant hereto shall go 0 first, to the County to satisfy (i) the County's attorneys' fees, UJ-79S77I.Vl 35 WIrn appraisal fees, and other costs incurred in prosecuting the claim 0 date, and (iii) any financial obligations of Lessee to the County for the award, (iil the value of the reversion as of the ending 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. SALE OR MORTGAGE BY TEE COUNTY ARTICLE 22 , 22.1 Sale or Mortuaue. From and after the Effective Date, purchase, exchange, transfe2, assign, lease, encumber orlconvey the County may at any time, without the consent of Lessee, sell, 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"). ARTICLE 23 SUBORDINATION; ATTORIJMENT 23.1 Subordination. Without the necessity of any other document being executed and delivered by Lessee, this Lease is and shall be junior, subject and subordinate to any existing or America or any local, State or federal agency affecting the future permits or appronls issued by the United States of control or operation of the Premises; Lessee shall be bound by the terms and provisions of such permits or appronls. In addition, this Lease is and shall also be subject, subordinate and .juni.or to all ground leases, mortgages, deeds of trust and other security instruments of any kind now covering the Premises, or any portion thereof. 23.2 Attornment. In the event any proceedings are brought sale under any mortgage or deed of trust made by the County for foreclosure, or in the event of the exercise of the power of covering the Premises, Lessee shall attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as landlord under this Lease. ARTICLE 24 COUNTY'S RIGHT OF ACCESS contractors may enter the Premises at any time in response to an 24.1 ACCesQ. The County, its agents, employees, and emergency, and at reasonable 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), (dl supply cleaning service and any other service that this Lease requires the County to provide, (e) post notices of nonresponsibility or similar notices, u~.%m~.vr 36 w11ffl make repairs to any adjoining space or utility services, or make (f) make repairs that this Lease requires the County to make, or 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, property adjacent to or near the Premises, for Contaminants, investigate, remediate or monitor the Premises, and any real Leachate or Landfill Gas, and (i) repair, maintain, install, relating to Contaminants, Leachate or Landfill Gas remediation, replace, investigate, inspect and test any equipment or machinery testing or monitoring of the Premises or any real property adjacent to or near the Premises; grovided, howevex, all work will be done as promptly as reasonably possible and so as to . cause as little interference to Lessee as reasonably possi le. P 24.2 Lessee Waivers Reaardina Countv AcCeas. Lessee waives any claim of injury or inconvenience to Lessee's business,, ', interference with Lessee's business, loss of occupancy or quie't enjoyment of the Premises, or any other loss occasioned by such keys-to unlock all of the doors in the Premises (excluding entry. If necessary,.Lessee shall provide the County with by Lessee in advance).. The County will have the right to use any Lessee's vaults, safes, and similar areas designated in writing means that the County may deem proper to open doors in the Premises and to the Premises in an emergency. 0. If Lessee is not in breach under the covenants made in this Lease, the County covenants that Lessee shall have peaceful and quiet enjoyment of the Premises without hindrance on the part of the County. The County will defend Lessee in the peaceful and quiet enjoyment of the Premises against claims of all persons claiming through or under the County. ARTICLE 26 HOLDING OVER If Lessee remains in possession of the Premises, for without executing a new Lease, or after the County has declared a any reason, after the expiration of the term of this Lease over shall be construed as a tenancy from month to month, subject forfeiture by reason of a default by Lessee, then such holding to all the conditions, provisions and obligations of this Lease Base Rent payable during any period of holding over shall be insofar as they are applicable to a month-to-month tenancy. The equal to Two Thousand Five Hundred Dollars ($2,500) (based upon 1997 dollars) per day, or any portion thereof, as such number is adjusted for inflation. 37 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 demand shall be in writing, mailed or delivered.to the other either party to this Lease to or on the other, such notice or party at the addresses specified in Article 1 (SUMMARY OF BASIC LEASE PROVISIONS). Mailed notices shall be sent by United States' shall be deemed to have been given, delivered and received three Postal Service, certified or registered mail, postage prepaid and (3) business days after the date such notice or other other such notices or other communications shall be deemed given, communication is posted by the United States Postal Service. All written notice delivered pursuant to this provision, at any time delivered and received upon actual receipt. Either party pay, by designate a different address to which notices shall be sent. 27;2 pefault Notices. Notwithstanding anything to the I ", 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 attempting to 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 0 in the preceding Section. ARTICLE 2a. NONDISCRIMINATION successors, assigns and all persons claiming under or through it, Lessee hereby covenants by and.for itself, its that-this Lease is made and accepted upon and subject to the condition that there shall be no discrimination against, or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the Premises. nor shal1,Lessee permit any such practice or practices of discrimination or itself, or any person claiming under or through it, establish or segregation with'reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the Premises. ... .. ARTICLE 29 AFPIRMATrVE ACTION PROGRAM .. Lessee, by maintaining a business location within San Diego the county and by being,able to use such business location by virtue, in whole or in part, of this Lease, shall comply with the Affirmative Action Program for Vendors as set forth in 0 U3.79S77l.Yl 30 WlYn County Administrative Code, which program is incorporated in this Article I11 (Commencing at Section 84) of the San Diego the Lease by this reference. A copy of such Affirmative Action Program for Vendors will be furnished to Lessee by the County's Lease Administrator upon request. WAIVER OF RELOCATION ASSISTANCE BENEFITS ARTICLE 30 30.1 Relocation Assistance Benefits. Lessee is hereby informed and acknowledges the following: of the county, Lessee may become entitled to receipt of I relocation assistance benefits ("Relocation Benefits") pursuant to the Federal Uniform Relocation Assistance Act (42 U.S,C. §§ Gov. Code, 55 7260 et seq.), or either of them (collectively, the 4601 et seq.) and the California Relocation Assistance Law (tal. of the Premises in such a way as to "displace" Lessee from the "Relocation Statutes"), should: the County at some time make use Premises. Pursuant to the Relocation Statutes, the County may such displacement of Lessee does not otherwise constitute a then become obligated to make such payments to Lessee even where breach or default by the County of its obligations pursuant to this Lease. a. By entering into this Lease and becoming a tenant . , b. Under the Relocation Statutes in.effee:t as,mf.:-the .... 10 date hereof, Relocation Benefits may include payment to sua a "displaced person' of (i) the actual and reasonable expense of moving himself or herself and a family, business, or farm operation, including personal property, (ii) the actual direct loss of reestablishing a business or farm operation, but not to exceed Ten Thousand Dollars ($10,000). or (iii) payment in lieu of moving expenses of not less than One Thousand Dollars ($1.000) or more than Twenty Thousand Dollars ($20,000). .. 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. 30.2 Lessee's Waiver and Release of Relocation RECORDS, ACCOUNTS AND AUDITS ARTICLE 31 a. Lessee shall. at all times during the term of this Lease, keep or cause to be-kept, true and complete books, records and accounts of all financial transactions in the operation of all business activities, of whatever nature, conducted pursuant to the rights granted in this Lease. Such records shall also include the source and disposition of all trash collected and disposed of by Lessee in the operation of its business. Said records must be supported by reasonable source documents. be kept and made available at one location within the lirrlits of b. All Lessee's books or accounts and records shall reasonable time to examine and perform audits of Lessee'q records the County of San Diego. The County shall have the right at any pertaining to its operations on the Premises. The cost of said provide to the County at Lessee's expense, necessary data to audits shall be borne by the County; however, Lessee shall enable the County 'to fully comply with each and every requirement of the State of California or by the United States of America for of the Premises. information or reports relating to this. Lease and to Lessee's use ARTICLE 32 GENERAG PROVISIONS . .. 0 32.1 Authority. Lessee represents and warrants that it has full power and authority to execute and fully perform its obligations under this Lease pursuant to its governing instruments, without the need for any further action, and that duly designated agents of Lessee and are euthorized to do so. the person(s) executing this Lease on behalf of Lessee are the 32.2 Broker@. Lessee warrants that it has had no dealings with any real estate broker or agent in connection with the.negotiation or execution of this Lease. In the event any broker other than the brokers acknowledged in-writing by the and hold the County harmless therefrom. County make claim for monies owed, Lessee shall indemnify, defend 32.3. Cautione. The captions, headings and index appearing in this Lease are inserted for convenience only and in no way define, limit, construe, or describe the scope or intent of the provisions of this Lease. Lease to the contrary, the phrases 'the County's approval," and mean approval of the County's Lease Administrator or said "the county's written approval" or such similar phrases shall Administrator's representative as authorized by said administrator in writing. 32.4 The Countv AuurovaL. Except 'where stated in this w.lqml.vI 40 WIWl 0 under this Lease, each party's remedies shall be limited to-those 32.5 Cumulative RemedieR. In the event of a default remedies set forth in this Lease; any such remedies are Lease to which the non-defaulting party may be entitled. cumulative and not exclusive of any other remedies under this 32.6 Entire Aareement. This Lease, together with all addenda, exhibits and riders attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and all prior or contemporaneous agreements, understandings and representations, oral or written, are . superseded. 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 unmodifi'gd 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 and name of with respect to the County's.obligations under this Lease and the Lessee, Lessee's knowledge concerning any outstanding defaults may be relied upon conclusively by any prospective purchaser or nature of such defaults if they are claims. Any such statement encumbrancer of the Premises. Lessee's failure to deliver such 0 this Lease is in full force and effect, except 'to the emnt.., any statements within such time shall be conclusive upon Lessee. ..that. modification has been represented by the County, and that there" more than one month's rent has been paid in advance. are no uncured defaults in the County's performance, and that not: ' 32.7 Fstouuel Certificate; Lessee shall at anyltime 32.8 Exhibits. All exhibits referred to in this Lease are attached hereto and incorporated by reference. prevented or delayed from performing any act or discharging any obligation under this Lease, except for the payment of rent by Lessee, because of any and all causes beyond either party's reasonable control, including unusual delays in deliveries, abnormal adverse weather conditions, unavoidable casualties, strikes, labor disputes, inability to obtain labor, materials or equipment, acts of God, governmental restrictions, regulations or controls, any hostile government actions, civil commotion and fire or other casualty, legal actions attacking the validity of this Lease or the County's occupancy of the Premises, or any other casualties beyond the reasonable control of either party maintenance of the Premises ("Force Majeure"), performance of except casualties resulting from Lessee's negligent operation or such act shall be excused for the period of such delay, and the period for performance of such act shall be extended for a period equivalent to the period of such delay. Force Majeure shall not 32.9 Force Maleure. In the event either party is include any bankruptcy, insolvency, or other financial inability on the part Of either party hereto. 0 32.10 Governinu Law. This Lease shall be governed, construed and enforced in accordance with the laws of the State of California. to the use of the particular language of the provisions of this Lease, and any question of doubtful interpretation shall not be' resolved by any rule of interpretation providing for interpretation against the parties who cause an uncertainty to exist or against the draftsperson. 32.11 Intemretatioq. The parties have each agreed 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 -12 'Joint and Several Liability. If more phan 32.13 Lessee's Lease Administratigp confirms that Lessee's Lease Administrator has been given full operational responsibility for compliance with the terms of this of its normal hours of business operation on the Premises, and Lease. Lessee shall provide the County with a written ,schedule Lessee's Lease Administrator or a representative designated thereby shall be (i) available to the County on a twenty-four (24) hour a day, seven (7) days a week, basis, and (ii) present on the Premises during Lessee's normal business hours, to resolve problems or answer question pertaining to this Lease and Lessee's operations on the Premises. . Lessee 32.14 Liauidated DamaueQ. Any payments by Lessee represent the parties' reasonable estimate of the County's actual to the County under this Lease described as liquidated damages 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 damages assessed Lessee and/or as an increase of rent due from Lessee under this in any portion of this Lease as direct monetary payments from Lease. may not be modified, except by a written instrument signed by both parties. 32.15 Modification. The provisions of this Lease 32.16 Partial Invaliditv. If any provision of this Lease is determined by a court of competent jurisdiction to be be affected thereby. Each provision shall be valid and invalid or unenforceable, the remainder of this Lease shall not enforceable to the fullest extent permitted by law. LA3.7*rnl.Vl 42 32 .I7 -8. Except as may otherwise be payments to be made by Lessee. shall be in addition to and not in substitution for other expressly stated, each payment required to be made by Lessee 32 -18 binding oran inure to the benefit of the parties and their Successors 5 Assicma. This Lease shall be successors and assigns, except as may otherwise be provided in this Lease. each and every provision of this Lease. 32 -19 Time of Essencr. Time is of the essence of 32.20 Waiver. No provision of this Lease or the breach thereof shall be deemed waived, except by written consent of the party against whom the waiver is claimed. The waiver by the County 0f.any breach of any term, covenant or condition I such term, covenant or condition of any subsequent breach contained in this Lease shall not be deemed to be a waiver of thereof, or of any other term, covenant or condition contained in or performance by Lessee shall not be deemed to be an accord and this Lease. The County's subsequent acceptance of partial rent satisfaction or a waiver of any preceding breach by Lessee of any . 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&he-part of 0 the County to require exact or full and complete compliance wiah any of the covenants, conditions of agreements of this Lease shall not be construed as in any manner changing or terms of this Lease or as estopping the County from arise or grow up between the parties hereto in the c full the provisions hereof. No custom or practice administering this Lease shall be construed to wai any way lessen the right of the County to insist u performance of, or compliance with, any term, cov condition hereof by'lessee, or construed to inhib any default, dereliction or breach of this Lease the rights of the County to exercise its rights 32.21 Purchase Aureement. Nothing agreements or obligations of Lessee or Allieb, o this Lease shall limit, modify or reduce the c Agreement dated as of August 12, 1997 (as amende rights and remedies, under that certain Purchase time, the "Purchase Agreement"), by and between seller, and Allied Waste Industries, Inc., a Del assigned to, and assumed by, Lessee as it relates to, ("Allied"), as purchaser (which Purchase Agreeme things, the Premises), including, without limitation, or Lessee indemnification obligations and any C of representations and warranties set forth the 0 43 I . Wlvn event of a conflict between the terms of this Lease and the Purchase Agreement, the Purchase Agreement shall control. 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 -22 Countemarts. This Lease may be executed in 32.23 Lease must include the approval of the Assistant Deputy Director - Aviation. Auorovala. All County approvals under this 44 Wlwl Lease as of the IN WITNESS h'HE executed this THE COUNTY: Lawrence B. Prior III, .' Chief Administrative Officer APPROVED AS TO FORM. AND LEGALITY BY LESSEE: President u3.mn1.v~ 45 WlVIll EXHIBIT A DESCRIPTION AND PLAT OF THE PREMISES Parcel No. 97-0085-Al That portion of McClellan-Palomar Airport, in the City of deed to the County of San Diego, recorded January 18, 1974 as Carlsbad, county of San Diego, State of California, described 'in said County, described as follows: File/Page No. 74-014190 in the Office of the County Recorder of BEGINNING at the moet Southerly corner of land described' n deed to the City of Carlsbad recorded June 30, 1982 at File/Pa 6 e No. 82-201566 in said County Recorder's Office; thence along; the, Southerly boundary of said Carlsbad land, North 78°42'04mlWest, and utility easement granted to said City of Carlsbad on said 635.35 feet to a point on the Easterly line of a 48.00 foot rbad 1982 deed; thence along said Easterly line, South 11°17'56n 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°45'22m, a distance of'311.55 ' feet; thence tangent to said curve South 43O27'26. East, 112.20 feet; thence leaving said Easterly line, North 51°31'08" East, 235.72 feet; thence North 61°24'19m East, 355.40 feet; thence 0 North 57O22'14" East, 246.04 feet to the beginning of a tangent along the arc of said curve, through a central angle of 50.00 foot radius curve concave Westerly; thence Northeasterly 88*3.5'04", a distance of 77.30 feet; thence tangent to said curve North 31O12'50" West, 51.72 feet; thence North 53°37813n West, 169.04 feet; thence North 4O55'29" East, 93.29 feet to the POINT OF BEGINNING. A- 1 PLAT OF TEE' PREMISES [SEE ATTACHED1 A- 2 EXEIBIT B PEDERAG AVIATION ADMINISTRATION REQUIREMENTS In the event there is any conflict between the provisions in this Exhibit and the other provisions in this Lease, the provisions in this Exhibit shall take precedence. a. Lessee for itself, its heirs, personal representatives, successors in interest, and assigns, as a part covenant running with the land that in the event facilities are of the consideration hereof, does hereby covenant and agree.as a constructed,-maintained, or otherwise operated on.the said property described in this Lease for a purpose for whichtal DOT program or activity'is extended or for another purpose involving maintain and operate such facilities and services in co&ia&e the provision of similar services or benefits, Lessee shall with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, DOT, Subtitle A, Office of the Secretary, Department of Transportation-Effectuation of Title VI of the Part 21, Nondiscrimination in Federally-Assisted Programs of the Civil Rights Act of 1964, and as said Regulations may be amended. 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: (11 no- person oamth.ugrounbs .*. participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) such land and the furnishing of services thereon, no person on that'in the construction of any improvements on, over, or under 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 Lessee shall use the Premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-Assisted Programa 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, 0 of race, color, or national origin- shall be excluded 'ff-v c. That in the event of breach of any of the above nondiscrimination covenants, the County shall have the right to the facilities thereon, and hold the same as if said Lease had.. terminate this' Lease and to re-enter and repossess said land and never been made or issued. This provision does not become effective until the procedures of 49 CFR Part 21 are followed and completed including expiration of appeal rights. d. Lessee shall furnish its accomodations 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, ~T Lessee may be allowed to make reasonable and price reductlons to volume purchasers. 0 nondiscriminatory discounts, rebates or other similar type of e. Non-compliance with Provision d above shall constitute a material breach thereof and in the event of such noncompliance 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 Governments shall have the right to judicially enforce said Provisions. (5) Provisions in any sublease, contract or agreement by which said Lessee grants a right or privilege to any person, f+rm or public on the Premises herein leased. corporation to render accommodations. and/or services to the f. Lessee agrees that it shall insert the abbe five affirmative action program as required by 14 CFR Part 152, g. Lessee assures that it will undertake an Subpart E, to insure that no person shall on the grounds of race, creed, color, national .origin, or sex be excluded from participating in any employment activities covered in 14 CPR 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. will undertake affirmative action programB and that they will suborganizations provide assurances to Lessee that they similarly require assurances from their suborganizations, as required by 14 CFR Part 152, Subpart E, to the same effect. a Lessee assures that it wi1.l require that its covered or improve the landing area of the Airport as it sees fit, regardless of the desires or view of Lessee and without interference or hindrance. h. The County reserves the right to further develop obligated to Lessee, to maintain and keep in repair the landing area of the Airport and all publicly-owned facilities of the Airport, together wi,th the right to direct and control all activities of Lessee in this regard. i. The County resenes the right, but shall not be 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. 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 k. There is hereby reserved to the County, its flight shall include the right to cause in said airspace any noise inherent in the operation of any aircraft used for taking off from or operation on the Airport. 0 navigation or flight through the said airspace or landing at, 1. Lessee agrees to comply with the notification and review requirements covered in Part 77 of the Federal Aviation Regulations in the event future construction of a building is modification or alteration of any present or future building or planned for the leased Premises, or in the event of any planned structure situated on the leased Premises. rn. Lessee, by accepting this, expressly agrees for permit the erection of any structure or object, nor permit the itself, its successors and assigns that it will not erect ,nor growth of any tree on the land leased hereunder that conflicts with Part 77 of the Federal Aviation Regulations. In thelevept the aforesaid covenants are breached, the County reserves the right to enter upon the land leased hereunder and to remove the offending structure or object and cut the offending tree, all of which shall be at the expense of Lessee. n. Lessee, by accepting this Lease, agrees for itself, its successors and assigns that it will not make use of the leased Premises in any manner which might interfere with the landing and taking off.of aircraft from said Airport or otherwise constitute a hazard. In the event the aforesaid covenant is- premises hereby leased and cause the abatement of such interference at the expense of Lessee. 0 breached, the County resenes the right to enter upon the..% *. contained shall be construed to grant or authorize the grantiwy., of an exclusive right within the meaning of Section 308a of the.- Federal Aviation Act of 1958 (49 U.S.C. 1349a). 0. It is understood and agreed that nothing herein& subject to whatever right the United States Government now has or in the future may have or acquire, affecting the control, operation, regulation and taking over of said Airport or the States during the time of war or national emergency. exclusive or non-exclusive use of the Airport by the United p. This Lease and all the provisions hereof shall be B-3 EXHIBIT C MCCLELLAN-PALOMAR AIRPORT DEVELOPMWT STANDARDS INDUSTRIAL AREAS TABLE OF CONTENTS 1 . LAND USES ............ a . Accepted Uses ........ b . Prohibited Uses ....... 2 . CONDUCT OF USE ......... 3 . BUILDING SETBACKS ........ 4 . BUILDING CONSTRUCTION ...... . ........... b Exterior Walls a Coverage . ....... 5 . HEIGHT LIMIT ........... 6 . MINIMUM DISTANCE BETWEEN BUILDINGS ............. 1 .............. 1 ............. 1 ......... 1 ... 1 ...r. ..l .I. .I. '. 1 I ...... ......... ............. 1 ............. 1 ............. 2 ............. 2 7; MULTIPLE-OCCUPANCY BUILDINGS ................. 2 0 8 . =QUI- SCREENING ..................... 2 . ..................... . .................... b ScreeningTypes 2 a ParkingAreas 2 'c . Roof Tops ....................... 2 9 . HEIGHT OF FENCES. WALLS. AND PLANT MATERIALS .... a . Fences and Walls ............... b . Plant Materials ................ 10 . OFF-STREET PARKING AND LOADING .......... a . Parking .................... b . Loading Space ................. c . Dimensions .................. d.Location ................... e . Improvement of Parking Spaces and Parking Areas g Parking Restrictions f Marking of Parking Spaces . ........... . ............. .... 3 .... 3 .... 3 3 3 .... 3 .... 3 .... 3 .... 3 .... 3 .... 3 .... .... 11 . ON-SITE CIRCULATION .................... 4 b Driveway Aprons 4 a Ingress and Egress 4 c . Pedestrian WaLkvays .................. 4 . .................. . .................... . ........................... . ................. 0 12 SIGNS 4 a Identification Signs 5 b . Directional Signs ................... 5 . ...... d Real Estate Signs c Safety Signs e . Sign Design ....... 13 . TRASH COLLECTION AREAS ... 14 . LANDSCAPI~ ......... . .... b . Landscaping Design ... a . Required Landscaped Areas c . Irrigation ....... 15 . OTHER REGULATIONS ...... ............... 5 ............... -5 ................ 5 ............... 5 ............... 5 ............... 5 ................ 6 ............... 6 ............... 6 c-2 Wlvn MCCL~-~ALOMAR AIRPORT INDUSTRIAL AREAS DEVELOPMENT STANDARDS a. Acceoted Uses. The following primary uses will be acceptable subject to approval of the County and compliance with these development standards and the performance standards specified for McClellan-Palomar Airport: (1) Research and development uses. (2) Industrial and manufactufing uses. (3) Warehousing, storage, and wholesaling. ' (4) Offices, services, sales activity, and other necessary buildings and uses appurtenant to permitted uses specified in 1, 2, and 3 &we. buildings or signs pertaining to the sale or lease of the premises on which they are located in accordance with standards contained herein. (5) Signs pertaining only to the use conducted within (6) Off-street parking and loading, vehicular and 0 pedestrian circulation,, and landscaping in accordance with standards specified herein. permitted industrial park use, one dwelling unit occupied (7) On the same leasehold or ,building site with a exclusively by'a caretaker or superintendent of such use and his/her family may be permitted upon approval of the County. (8) Finance, insurance, real estate ind business seivices, 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. categories are not permitted unless specifically set forth in the Lease. 2. CONDUCT OF USE. All manufacturing operations shall be conducted within an enclosed building. All storage shall be conducted within a totally enclosed building or enclosed by a six (6) foot high or higher, view obscuring fence or wall. This fence shall not encroach into any required exterior yard. No storage shall exceed the height of the,wall or fence. b. Prohibited Use@. Uses not falling into the above 3. BUILDING SETBACKS. No building, structure (except a wall or landscape feature--or fence) shall at any time be erected or maintained on any site within twenty-five (25) feet from any'site boundary abutting any street. 4. BUILDING CONSTRUCTION. a. Coverauc. All buildings, including accessory buildin9s ' and structures, and all paved areas shall not cover more than ninety percent (90%) of the net lot area. b. Exterior Walls. Any building erected within the industrial park shall conform to the following: (1) Exterior walls shall be concrete or masonry except 'I where specific approval is given by the County for architecturally acceptable alternate materials and desigd.' I ,' , acceptable to the County. 5. HEIGHT LIMIT. No building or structure shall exceed two stories or 35 feet in height, whichever is the lesser; provided, or more from any property line and exceeding 35 feet in height boweva, buildings or structures located one hundred (100) feet may be permitted upon approMl by the County. (2) Exterior walls shall be painted or treated in a manner 0 '6. minim ten (10) feet between all buildings located on the same MINI" DISTANCE BE!TWEEN BUILDING^. TheEa.eh&l.~b-b.~a site,. .". .. ., .. 7. MULTIPLE OCCUPANCY BUILDINGS. Multiple OCCUpanCy Of buildings is permitted. In case of multiple occupancy, and on-site vehicular and pedestrian circulation systems must be off-street parking, off-street loading, outdoor trash-facilities, perniitted by the County where justified and when such provision shared in comn; provided that separate such facilities may be does not otherwise deviate from the specifics and intent of these development standards. 8. ReouIRED SCREENINQ. a, Parkinu 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, materials that will significantly soften the view of such areas. shrubs, ground cover, or combination of landscaping and aggregate Such landscaping may be credited to the ten percent (10%) requirement of Paragraph 14. . b. Screenina "m es. Where screening is required herein it shall consist of one, or any combination of the following types, 0 in an aesthetically designed configuration. u3.nm1.v~ c-4 WIW7 tile, or similar type of solid masonry material a min+ of four (1) Walls: A wall shall consist Of concrete, stone, brick, inches thick. designed in such a way as to provide desired screening effect. (2) Be&: A berm shall consist of landscaped mounded earth masonry. (3) Fences, solid: A solid. fence shall be constructed of , combined with plant materials or view obscuring slats to form an opaque screen. I (4) Fences, open: An open weave or mesh type fence shall'be (5) Planting:' Plant materials, when used as a screqn, shall consist of compact evergreen plants. They shall be of a lkind, or minimum thickness of two (2) feet within eighteen (18) months used in such a manner, so as to provide screening having ai 'mI after initial installation. I be screened from view from both street level and above. To,that end, all duct work and electrical conduits are to be nin underneath the roof surface. In addition, the equipment should be clustered and roof top color shall be considered during the design of the buildings. c. Roof Too@. Roof top equipment such as WAC units shall 0 9. HEIGBP OP FENCES, WALLS, A?JD PLANTED MATERIALS. walls shall exceed the following height limits above ground elevation: a. Fences and Walls. NO decorative or screening fences or street: Forty-two (42) inches except within five (5) feet of the walkway, a driveway and parking area circulation aisle, or two intersection of a driveway and a street, a driveway and a (2) driveways in which cases the height limit shall be thirty (30) inches. (1) Within required front or side yard setback abutting a approved by the County. (2) All other areas: Eight (8) feet, unless otherwise screen, plant materials may be permitted at any height not b. Plant Materiala. Except where used as an opaque constituting a hazard to operation of aircraft based on the judgment of the County. 10. OFF-STREET PARKING AND LOADING SPA-. a. parkinq. 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 or manufacturing use, paved parking may be provided at the ratio development Of the Premises is recognized as a standard warehouse of one space per six hundred (600) square feet. However, the parking ratio of one, (1) space per three hundred (300) square remainder of the land area necessary to provide an ultimate expansion. This area may be made a part of the landscaped area feet of gross floor must be available for future parking 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. greater than one 'thousand (1,000) square feet shall be served with a loading area'with minimum dimension of twenty (20) feet by provided for buildings with a gross floor area exceeding twelve twenty (20) feet. One (1) additional loading area shall be thousand (12,000) square feet. Loading areas shall not be placed in any required yard areas or parking spaces. b. Loadina Space. All buildings with a gross floor area nine (9) feet wide and twenty (20) feet deep. c. Dimensions. Each parking space shall be a minimum of the same leasehold Premises with the building or structures they d. Location. All parking and loading spaces shall be on 0 are to seme. e. Iwrovement of Parkina Spaces and *asJc%h%J?mmam approaches, and driveways shall be adequate for anticipated wheel% loads, with a structural section designed by a.soils engineer;. and constructed of Portland Cement (concrete Over a base couruc. of adequate stability. (I) All parking spaces or areas, loading berths, (2) All parking spaces abutting the perimeter of the property shall be provided with securely installed concrete wheel barriers or concrete curbs not less than four (4) inches in height. f. . &kina of Parkina Spaces. The location of each parking space shall be identified and maintained by permanent surface markings. g. Parkina Restrictiona. On street parking within the Code. Industrial Park shall conform with the current City of Carlsbad 11. ON-SITE CIRCOWLTION- a. Inures6 and Earess. u3.nsn1.n C- 6 WlW (1) On-site driveways shall be located so as to serve multiple purposes such as parking and loading areas wherever 0 possible. (2) On-site driveways shall have an unobstructed paved surface minimum widtB 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 mwe into and out of parking and loading areas, driveways, and ramps without the backing of +ny vehicle onto a street. (4) Unobstructed and adequate maneuvering aisles or turn-around areas shall be provided as necessary to insure that all vehicles shall enter the street or highway in a forward manner. (5) Parking areas, driveways, maneuvering aisles, ramps, and turn-ar.ound areas shall be kept free and clear of obstructions at all times. concurrently with individual site development and shall be commercial driveways of Portland cement concrete, six (6) inches thick from curb to right-of-way line with minimum width of fifteen (15) feet at the curb line for one-way traffic and thirty Where driveway aprons will serve semi-trailers, they shall be no (30) feet for two-way traffic according to Standard Drawing 0-16. less than twenty-four (24) feet and thirty-six (36) feet respectively, and may be constructed as alley aprons with appropriate curb returns. b. privewav Aurona. All driveway aprons will be installed . E. Pedestrian Walkways. Easily accessible and adequate pedestrian walkways consisting of concrete, decorative gravel, paving blocks, or other aesthetically pleasing materials shall be provided. 12. a. identifying the name and address of the occupant and the products, activities or facilities located on the Premises are permitted for each Premises except as hereinafter specified. a. Identification. Not more than two (2) signs (1) One (1) such sign may be a single-face sign mounted on and parallel to a wall of the main building. Such sign shall be proportional to the size of the building wall upon which it is mounted but shall not exceed an area of forty-eight (48) square feet. Such a sign may not extend above the top of the parapet wall, the roof line at the wall, the eaves of the building, or portion of the building to which attached, whichever is applicable; nor shall the sign face protrude more than eighteen ( 0. ~3.vm1.n c-7 WIW e. ian Desian. Identification signs must be designed so as to provTde uniformity of layout, lettering, graphics, size, shape, color, method of installation and construction. The location and design of all identification signs shall be subject to the written approval of the County. No sign of any type shall be installed without'the prior written approval of the County. 13. TRASH COLLEmION AREAS. All trash collection areas shal1,be located outside of areas required to be devoted to landscaping and shall be enclosed by a wall and heavy duty solid gates not less than six (6) feet in height. Portland cement concrete. floors and aprons are required in.trash collection areas. I' required and submitted for approval of the County. All dterfor yards, except for driveways shall be landscaped and maintained, however, in no event shall the total landscaped area be less than driveway or sidewalk between street curb and the property line ten percent (10%) of the gross lot area. All areas not in a, shall be landscaped and maintained by Lessee and may be included in the above mentioned ten percent on-site requirement. a. Reouired Landscauinu Areas. Landscaping plans hall be b. Landscauina Desiun. (1) Coverage: At least seventy-,five percent (79'4~$r.okthe of trees, shrubs, vines, flowers or ornamental ground cover. "IC., remainder may include features such as pedestrian walkways, rock groupings, sculptures, pools, fountains, outdoor seating areas, areas. decorative paving, and gravel areas, interspersed with planting surface landscaped shall be planted with*a compatibWcombination (2) Spacing: Plant material spacing shall conform to the back of sidewalk at street intersections to the center of the following standards: A minimum of twenty-five (25) feet from the height or more at maturity. first tree or the center of the first large shrub ten feet in c. Irriuation. Prior to commencing any use of the property, required landscaped areas shall be planted and a permanent type sprinkler system or similar watering system or device, adequate to provide water necessary to properly maintain the particular plant materials used, shall be constructed and thereafter maintained in good working order. 15. OTHER REGULATIONS. In addition to the provisions of these Development Standards, all development on the Premises shall conform to the standards specified by the applicable Federal Aviation Administration Regulations, laws of the State of policies promulgated by the Board of Supervisors which regulate California, the Carlsbad Municipal Code and those ordinances and the County Airports. the administration, land use, construction, and development of 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. I I ", u~.nrn~.n c-10 EXHIBIT D 1 . 2 . 3 . 4 . 0 5 . 6 . 7 . 0 . 9 . 10 . INDUSTRIAL AWD MCCLELLAN-PALOMAR AIRPORT PERFORMANCE STAUDARDS AVIATION AREAS TABLE OF CONTENTS PAGE NOISE .......................... 1 a . Standards ....................... 1 b . Method of Measurement ................ 1 c . sound Level ..................... 1 d . Aircraft Engine Runups ........... ., ... 1 e . Exemptions ......... , ............ 1 GLARE ...................... J.,.1 a . standards ...................... 1 b . Prohibitions .................... 1 ELECTROMAGNETIC INTERFERENCE ............... 2 a . Standards ...................... 2 b . Method of Measurement ................. 2 . VIBRATION ........................ 3 a . standards ...................... 3 b . Method of Measurement ................. 3 TOXIC MATrER ........................ 3 a . Standards ...................... 3 b . Method of Measurement ................ 3 ODOR ............................ 4 SMOKE. PARTICULATE MATPER. AND OTHER AULXBNT~ANTS . . 4 LIQUID WASTES ...................... 4 a . Standards ...................... 4 b . Prohibitions .................... 4 FIRE AND EXPw)sIVE HAZARDS ................. 4 OTHER REGULATIONS .................... 4 D-1 INDUSTRIAL AND A VIATION AREAS WCCLELLAN-PALOMAR AIRPORT PERFORMANCE STANDARDS 1. m. the leasehold Premises shall the maxinun sound level resulting a. standards. At no point on or beyond the boundary of from any operation, activity or use exceed Leq(h) - 70 dB for continuous noise. If the measured ambient level exceeds the applicable limit noted above, the allowable one hour average level shall be measured when the alleged noise violation source sound level shall be the ambient noise level. The ambient noise is not operating. I b. Method of Measurement. Noise shall be measure4 with a sound level meter having an A-weighted filter constructed in accordance with specifications of the American National Standards Institute for type S-2A general purpose sound level meters. response of the sound level meter. Impact noises are . (1) Impact noise shall be measured using the fast hammer. intermittent sounds such as from a punch press or drop-forge (2) Continuous noise shall be measured-using .the slow response of the sound level meter. C. 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 A-weighting is implied. the frequency weighting employed is not indicated, the Sound Level (Noise Level). Sound level shall mean the engine tests and maintenance runups performed on the leasehold Premises to idle power settings. Lessee shall restrict aircraft locations on the Airport and during the time of day authorized in tests and maintenance runups at greater than power settings to writing by the County. d. Aircraft Ermine ~kuga. Lessee shall restrict aircraft e. Exemntions. The following sources of noise are exempt .. ,' from the specified maximurn sound level: (1) Transportation vehicles not under the control of Lessee; and emergency pressure relief valves; and (2) Occasionally used safety signals, warning devices, 0 920 - 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 Cokty. b. Method of Measurement. The level of radiated electromagnetic interference shall be measured by using standard field strength measuring techniques. The maximum value of the tabulation shall be considered as having been exceeded if at any measured field strength exceeds the maximum value tabulate6 for frequency in the section of the spectrum being measured, the this spectrum section. a. Btandarda. At no point on or beyond the boundary of the leasehold Premises shall the maximum particle velocity resulting from any operation, or activity or use exceed 0.10 inches per second for steady-rate vibrations and 0.20 inches per second for impact vibrations. b. Method of Measurement. Vibration shall be measured with a seismograph or complement of instruments capable of recording vibration displacement and frequency or particle directions. When particle velocity is computed on the basis. ..of': displacement and frequency, the following formula shall be used:$. 0 velocity simultaneously in three mutually perpendicular:: P.V. - 6.28 F X D P.V. E Particle velocity, inches per second F - vibration frequency, cycles per second D Single amplitude displacement of the vibration, inches The maxim particle velocity shall be the maxi- vector sum of the three mutually perpendicular components recorded simultaneously. continuous or vibrations in discrete impulses occurring 100 or (1) Steady-rate vibrations are vibrations which are more times per minute. occurring less than 100 times per minute. (2) Impact vibrations are vibrations in discrete impulses the leasehold Premises shall the release of any airborne toxic a. Standards. At no point on or beyond the boundary of matter resulting from any operation, activity or use exceed 3.0 percent of the Threshold Limit Value; pro vided, however, if a 0 Value, Lessee shall satisfy the County Department of Public toxic substance does not have an established Threshold Limit population. Health that the proposed levels will be safe to the general b. Method of Measurement.. The maximum concentration is .which is the maximum concentration permitted an industrial worker given as a fractional amount of the ACGIH Threshold Limit Value for eight hours exposure per day, five days a week, as adopted by the American Conference of Governmental Industrial Hygienists habitable elevation using ACGIII or ASTM methods and shall be the (ACGIH). Toxic matter shall be measured at ground level or, average of any 24-hour sampling period. leasehold Premises shall any odorous gases or other odorous 6. ODOR. At no point on or beyond the boundary' of the I matter resulting from any operation, activity or use be detectable. I "( 7. SMOKE. PARTICULATE MATTER. AND OTHER AIR COW AXINANTS. All operations, activities, and uses shall be conducted so as to comply with the rules and regulations of the San Diego the County Air Pollution Control District governing smoke, particulate matter, and other air contaminants. 8. LIQUID WASTES. 0 a. Standards. All operations, activities, ziid uses shall be conducted so as to comply with the rules and regulations of the State of California Water Quality Control Board - San Diego Region and the County San Diego. b. Prohibitiona. The discharge of any toxic or waste material onto the ground, into any drainage channel, or the discharge of any toxic material into any on-site leaching system shall be prohibited. 9. FIRE AND EXPLOSIVE BAZ uses shall be conducted so as to comply with the rules and ARDQ. All operations, activibies, and regulations of the applicable fire protection agency and the Uniform Fire Code governing fire and explosive hazards. 10. OTHER ReCiFTLATIONQ. 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 California and the applicable local ordinances which regulate land use and operations. In the event of a conflict between ordinances and regulations, the most restrictive shall apply. these Performance Standards and various applicable laws, D-5 Wlyn INSURANCE REQUIRPIENTS EXHIBIT E Without limiting Lessee's indemnification obligations to the County, Lessee shall provide and maintain, during the Term-and this exhibit ("Insurance Exhibit") or the Lease, at its sole for such other period as may be required by the provisions of expense, insurance in the amounts and form specified in this Insurance Exhibit. A. Liabilitv Insurance. Lessee shall procure either Liability insurance applying to its use and occupancy of the Comprehensive General Liability insurance or Conunercial General Premises, or any part thereof, or any areas adjacent thereto, ad Premises, in the amounts and form set forth below: the business operated by Lessee or any other occupant on the I (1) Conturehensive 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) : (c) Medical Expense (Any One Person) : $ 500,000 . s . 5,000 0 OR (2) 1.J Commercial General Liability Insurance which provides9S%ts..:of.: abilitv In *@ A St@*y*pf (a) Per Occurrence: $5,000,000 (b) Location " %ecific Agg'regate: (c) Products/Completed Operations: $5,000,000 (dl, Personal & Advertising Injury limit: $5,000,000 $5,000,000 (e) Fire Damage Limit (Any One Fire) : $ 500,000 (f) Medical Expense Limit (Any One Person) : $ 5,000 policy provided by Lessee under this Insurance Exhibit shall (3) Remired Liabilitv Policv Coverage. Any liability contain the following coverage: (b) Products/Ccmpleted Operations (a) Premises and Operations (c) Contractual Liability expressly including (d) Personal Injury Liability (e) Independent Contractors' Liability (f) Pollution liability with no exclusion for (g) Severability of Interest clause providing that the liability assumed under this Lease. operations at the Premises coverage applies separately to each insured, and that an act or omission by one of the named U3-79rnl.Va E-1 insureds shall not reduce or avoid coverage to the other named insureds. policy provided by Lessee under this Insurance Exhibit shall ' (4) Additional Insured Endorsement. Any general liability contain an endorsement which applies its coverage to the County, the members of the Board of Supervisors of the County, and the officers, agents, employees and volunteers of the County, individually and collectively, as additional insureds'. by the additional insured endorsement described above shall apply (5) Prima- Insurance Endorsement. The coverage afforded as primary insurance, and any other insurance maintained by the County, the members of the Board of Supervisors of the &unty, or its officers, agents, employees and volunteers, or any the County with such coverage. self-funded program, shall be excess only and not contributing (6) Form of Liabilitv Insurance Policiea. All liability policies shall be written to apply to all bodily injury, including death, property damage, personal injury and other covered loss, however occasioned, occurring during the policy term, and shall specifically insure the performance by Lessee of' . that part of the indemnity agreement contained in this Lease relating to liability for injury to or.death of persons and damage to property. If the coverage contains one or more 0 must remain available at all times; if over 50% of any aggregate aggregate limits, a minimum of 50% of any such aggregate limit additional coverage to be purchased by Lessee to restore the limit has been paid or reserved, the County may require requ'ired limits. . Lessee may combine primary, umbrella and as . limits indicated above. Any umbrella or excess liability policy broad as possible excess 1iability.coverage to achieve the total shall include the Additional Insured Endorsement described below. B. All Risk Fire Insurance. A standard fire policy including all-risk or.specia1 form perils, in-an amount of ninety percent 90% of the full replacement cost of the Building and of demolition and debris removal. Such policy or policies of Improvements, without deduction for depreciation, including costs insurance shall include coverage for (i) Lessee's merchandise, (ii) fixtures owned by Lessee, (iii) any items identified in this by the County or Lessee, and (iv) the personal property of Lease as improvements to the Premises constructed or owned either Lessee, its agents and employees. (1) Deductible. The deductible for the required fire shall be borne by Lessee. insurance policy shall not exceed $10,000 per occurrence and (2) Proceeds of Insurance. In the event of damage or destruction to the Premises covered by the fire or physical the proceeds Of such insurance shall be allocated as follows: hazard insurance required of Lessee under this Insurance Exhibit, (a) Proceeds from any or all of said insurance policies shall be payable, first, to the holder of any mortgage or deed of tNSt permitted under this Lease to the extent required by said mortgage or deed of trust; (b) Any balance. remaining after application of above, shall be credited to Lessee. If Lessee, or the County, is insurance proceeds in the mer indicated in subparagraph (a), required to rebuild or restore the Premises pursuant to the' provisions of this Lease, the amount of insurance proceeds credited to Lessee shallae impounded with an independent depository acceptable to the County in accordance with a hider to the insurance policy setting forth this procedure, to be' disbursed to pay, to the extent such portion of proceeds py ,pe sufficient, Lessee's obligations to repair and restore the Premises pursuant to the provisions of this Lease; and expenses of repair and restoration referenced in subparagraph be retained by Lessee. Should it be anticipated that the (b), above, any balance of insurance proceeds remains, it shall , proceeds of insurance to be received by Lessee will be insufficient to repair or restore the Premises as required by this Lease, Lessee shall have the option to either (i) terminate,., account to the County, or (ii) repair or restore the Premisem..a.r., required under this Lease using the available insurance proceedsp with any shortfall in the amount necessary to repair or restore+#, the Premises being contributed, in cash, by Lessee. (See, DESTRUCTION). Section 20.5 (UNINSURED CASUALTY) under Article 20 (DAMAGE OR (c) In the event that, after paying ali of the costs 0 this Lease and turn over all insurance proceeds from tha-dmpoundy+ (d) Notwithstanding any provision of the foregoing to the Lessee's insurance, but excluding such proceeds attributable to contrary, upon any termination of this Lease all proceeds from damages sustained by Lessee's merchandise or personal property, shall be disbursed and paid to the County. C. Cornrehenaive Automobile/Aircraft/Watercraft Liability Automobile/Aircraft/Watercraft Liability Insurance, applying to Insurance. Lessee shall procure Comprehensive by Lessee or any other occupant on the Premises. Such policy its use and occupancy of the Premises and the business operated damage, however occasioned, occurring during the policy term, in shall be written for bodily injury, including death, and property combined single limit per occurrence, applicable to all owned, the amount of not less than One Million Dollars ($1,000,000); non-owned and hired vehicles/aircraft/watercraft. Notwithstanding any provision of the foregoing to the contrary, it determines there is no significant exposure to these risks. however, Such coverage may be waived in writing by the County if D. Statutorv Workers' Cowensation and -1 Insurance. Lessee shall provide the statutory amount of workers' and with employer's liability coverage of no less than Three compensation insurance, with a broad form all-states endorsement, Million Dollars ($3,000,000) per occurrence for all employees also provide U.S. Longshoremens' and Harbor Workers' Act engaged in services or operations under this Lease. Lessee shall coverage, when applicable. E. General PrOViSiOnt%. over's LiabilFty I practicable following the placement of insurance requireq by this Insurance Exhibit, but in no event later than, ten (10) da s prior to the Effective Date, deliver to the County certified cogies lof 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 pennit the County at all reasonable times to iospect any policies of insurance of Lessee which Lessee has not delivered to the,County. (1) certificates of Insurance. Lessee shall, as sodn as "claims made" basis, the Certificate of Insurance shall clearly (2) Claims Made Coveraae. If coverage is written on a above, such policy shall provide that: state so. In addition to the coverage requirements specified precedes Lessee's possession of the Premises (including subsequent policies purchased as renewals or replacements). (a) The policy retroactive date coincides with or (b) Lessee will-make every effort to maintain similar insurance during the required extended period of coverage 'following expiration of the Lease, including the requirement of adding all additional insureds. shall purchase an extended reporting provision of at least two years to report claims arising in connection with the Lease. (c) If insurance is terminated for any reason, Lessee (dl The policy allows for reporting of circumstances or incidents that might give rise to future claims. Remedieg. Lessee's failure to procure the insurance specified by (3) Failure to Obtain or Maintain Insurance: the Countya@ 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 option, terminate the Lease for any-such default by-Lessee. (4) No Limitation of Obliaatioqg. The foregoing a material breach of the Lease, and the County may, at its be maintained by Lessee, and any approval of said insurance by requirements as to the types-and limits of insurance coverage to the County Or its insurance consultant(s), are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by Lessee pursuant to the Agreement, including, but not limited to, the,provisions concerning indemnification. (5) Notice of Cancellation or Chanae of Covrraua. 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 cancellation, lapse, reduction or other adverse change respecting such insurance. (6) pualifvinu Insurers. All policies of insurance approved to do business in the State of California by the State required he'reby shall be issued by companies which have been Department of Insurance, and which hold a current policy holder's alphabetic and,financial size categoxy rating .@f not lesa than a, company of equal financial stability that is approved in writing-* by the County's Risk Manager. @ vII according to the current Best's Key R&ting&aide, oma (7) Review Of Coveraue. The County shall retain the righe at any time to review the coverage, form and amount of insur- obtain insurance reasonably sufficient in coverage, form and required by this Insurance Exhibit and may require Lessee to amount to provide adequate protection against the kind and extent of risk which exists at the time a change in insurance is required. (8) Self-Insurance. Lessee may, with the prior written consent of the County's Risk Manager, fulfill some or all or the self-insurance. Lessee shall only be permitted to utilize such insurance requirements contained in this Lease under a plan of self-insurance, however, if, in the opinion of the County's Risk Manager, Lessee's (i) net worth, and (ii) reserves for payment of claims of liability against Lessee, are sufficient to adequately compensate for the lack of other insurance coverage required by this Lease. Lessee's utilization of self-insurance shall not in any way limit liabilities assumed by Lessee under this Lease. (9) sublessees' Insurance. Lessee shall require any sublessee, and any sub-sublessee, of all or any portion of the E-5 Wlvn premises to provide the insurance coverage described in this Insurance Exhibit Prior to occupancy of the Premises. (10) Waiver of Saroaation. Lessee and the County wqive all rights to recover against each other or against any other tenant or occupant of the building, or against the officers, directors, shareholders, Partners, employees, agents or invitees of each any Claims (as defined in the Article 12 (IND~ITY AECO other or of any other occupant or tenant of the building, from fixtures, personal property, Lessee's improvements, and INSURANCE)), against either of them and from any damages to the 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. Lessee under this Insurance Exhibit shall be a standard waiver of Included in any policy or policies of insurance provided 'by rights of subrogation against the County by the insurance kom&ny issuing SZ.:~ ?olicY or policies. E-6 EXHIBIT F MCCLELM- PntcwAIl AIRPORT THE COUNTY OF SAN DIEGO REQUIRED SUBLEASE PROVISIONS Premises. Paragraphs marked with an asterisk (*) must be used exactly as written. The following paragraphs must appear in each sublease of the 1. 'Partie@. This Sublease is entered into by and between , hereinafter-called "Sublessee", as a Sublease , hereinafter called "Sublessor", and , 19- (the "Master Lease"), also known as the County under the Palomar Transfer Station Lease Agreement datedl of san Diego Contract No. . Sublessor, under this Sublease, is Lessee and the County of San Diego is Lessok under said Master Lease. 2. Premises. Sublessor leases to Sublessee ahd Sublessee hires the following described Premises together with the appurtenances, situated in the County of San Diego, State of California.: attaehed hbato;"; i, 0 Said Premises are shown on 3. Term. The term of this Sublease AsreGent shall be for*^ - ~ ~.~ :erminating terminated as provided herein. (Note: Termination date of Sublease cannot exceed expiration date of Master Lease.) , cmencing * 19-n aad , unless sooner 4. Rentaa. Sublessee shall pay to Sublessor as rent for of the term of this Sublease without deduction, offset, prior the Premises in advance on the first day of each calendar month notice or demand, in lawful money of the United States, the sum of Dollars and Cents ($ ). If the comencement date is not the first day of day of the month, a prorated month installment shall be paid at the month, or if the Sublease termination date is not the last the then current rate for the fractional month during which the Sublease commences and/or terminates. Receipt of 5 additional amount of $ is hereby acknowledged for rental for the first month, and the security for performance under this Sublease. In the event Sublessee has performed all the terms and conditions of this Sublease throughout the term, upon Sublessee vacating the Premises, the amount paid as a security deposit shall be returned to sublessee after first deducting any sums owning to Sublessor. as non-interest bearing 0 LAJ-79JzII.vI F-1 oVlUp7 5. 9a+. Sublessee shall use the Premises for uses 0 operations Of a solid waste collection business, a recycling specified in the Master Lease, generally described as the office facility. and a trash transfer station, including office, repair and storage facilities for equipment used in collecting and written consent of Sublessor. Sublessee's business shall be transferring trash, .and for no other purposes without prior established and conducted throughout the term hereof in a first class manner. Sublessee shall not use the Premises for, or carry on, or permit to be carried on, any offensive, noisy or dangerous trade, business, manufacture or occupation. *6. Jndemnificatioq. Sublessee shall indemnify and save . harmless the Countyof San Diego, it officers, agents, apd employees from and against any and all' claims, demands, liabilities, or loss of any kind or nature which the County, its be imposed upon them or any of them for inju'ry to, or death or, officers, agents, or employees may sustain or incur, or iuhich may persons or damage to property, as a result of, arising out of, or in any manner connected with this Sublease or with occupancy and use of the Subleased Premises by Sublessee, its officers, agents, employees, licensees, patrons or visitors except as attributable pay any and all costs and expenses, including, but not limited to an act or omission of the County. Sublessee further agrees to . to, court costs and reasonable attorneys' fees, incurred by the county on account of any such claims, demands, or liabilities. 0 subject to all of the terms and conditions of the Master Lease. and .Lessee in said Master Lease, to the extent said term6 and Sublessee shall assume and perform the obligations of Sublessor conditions are applicable to the Premises subleased pursuant to this Sublease. Sublessee shall not conunit 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 Lease for any reason, then this Sublease shall terminate termination of Sublessor's interest as Lessee under the Master coincidental'ly therewith without any liability of Sublessor and agrees that Sublessee waives all rights to any form of Relocation the County to Sublessee. Sublessee hereby acknowledges and Assistance provided for by local, State, or Federal law that Sublessee--may be entitled to by reason of this Sublease. '7. Provisions Conetitutins Sublease. This Sublease is -8. Federal Aviation Administration Recruirementa. 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 of the consideration hereof, does hereby covenant and agree as a representatives, successors in interest, and assigns, as a part covenant running with the land that in the event facilities are constructed, maintained, or otherwise operated on the said ~~3.195nl.v1 F-2 Wlvcl 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 with all other requirements imposed 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. maintain and operate such facilities and sexvices in compliance 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 of race, color. or national origin shall be excluded from 1 covenant mn+ing with the land that: (1) no person on the grounds 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, wer, or und& such land and the furnishing of services thereon, no person on the grounds of race, color, or national origin shall be excluded subject to discrimination, (3) that Sublessee shall use the from participation in, denied the benefits of, or otherwise be Premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation. Subtitle A, Office of the Secretary, Part 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 beweaed. nondiscrimination covenants, Sublessor shall have the right to c. That in the event of breach of any of the above and the facilities thereon, and hold the same as if said Sublease terminate this Sublease and to re-enter and repossess said lad had never been made or issued. This provision does not become effective until the procedures of 49 CFR Part 21 are followed and completed including expiration of appeal rights. d. Sublessee.shal1 furnish its accommodations and/or services on a fair, equal and not unjustly discriminatory basis to all users thereof and it shall charge fair; reasonable and not unjustly,discriminatory prices for each unit or service; PROVIDED, THAT Sublessee may be allowed to make reasonable and price reductions to volume purchasers. nondiscriminatory discounts, rebates or other similar type of e. Non-compliance with Provision d above shall non-compliance Sublessor shall have the right to terminate this constitute a material breach thereof and in the event of such 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. F-3 five (5) Provisions in any sub-sublease, contract or agreement by @ which said Sublessee grants a right or privilege to any ,person, the public on the Premises herein subleased.. firm or corporation to render accommodations and/or services to f. Sublessee agrees that it shall insert the above g. Sublessee assures that it will undertake an affirmative action program as required by 14 CFR Part 152, Subpart E, to insure that no person shall, on the grounds of race, creed, color, national origin, or sex be excluded from ' participating in any employment activities covered in 14 CFR Part 152, Subpart E. Sublessee assures that no person shall be services.or benefits of any program or activity covered by this excluded on these grounds from participating in or receiving the subpart. Sublessee assures that it will require that its qovered suborganizations provide assurances to Sublessee that they similarly will undertake affirmative action programs and that required by 14 CFR Part 152, Subpart E, to the same effort. they will require assurance from their suborganizations, ad ''1 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 Sublessee, and without , interference or hindrance. i. the County reserves the right, but shall not be 0 the Airport, together with the right to direct. and control all obligated to Sublessee, to maintain and keep in repair the landing area of the Airport and all publicly-owned facilities of activities of Sublessee in this regard. j. This Sublease shall be subordinate to the between the County and the United States, relative to the provisions and requirements of any existing or future agreement development, operation or maintenance of the Airport. k. There is hereby reserved to the County, its right of flight for the passage of aircraft in the airspace &we successors and assigns, for the use and benefit of the public, a the surface of the Premises herein subleased. This public right noise inherent in the operation of any aircraft used for of flight shall include the right to cause in said airspace any navigation or flight through the said airspace or landing at, taking off from or operation on the Airport. and review requirements covered in Part 77 of the Federal Aviation Regulations in the event future construction of a building is planned for the subleased Premises, or in the event of any planned modification or alteration of any present or future building or structure situated on the subleased Premises. 1. Sublessee agrees to comply with the notification F- 4 itself, its successors and assigns that it will not erect nor permit the erection of any structure or object nor permit the growth of any tree on the land subleased hereunder that conflicts with Part 77 of the Federal Aviation Regulations. In the event the aforesaid Covenants are breached, the County and/or Sublessor reserve the right to enter upon the land subleased hereunder and tree, all of which shall be at the expense of Sublessee. to remove the offending structure or object and cut the offending rn. Sublessee by accepting this expressly agrees for n. Sublessee by accepting this Sublease agrees for itself, its successors and assigns that it will not make use of the subleased Premises in any manner which might interfere with the landing and taking off of aircraft from the Airport or otherwise constitute a hazard. In the event the aforesaid covenant is breached, the County and/or Sublessor resene the right to enter upon the Premises hereby subleased and caqse t+he abatement of such interference ar the expense of Sublessee. 0. It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of Sectian 308a of the Federal Aviation Act of 1958 (49 U:S.C. 1349a). p. This Sublease and all the provisions hereof shall be subject to whatever right the United States Government now has or in the future may have or acquire, affecting the control, operation, regulation and taking over of said Airp-2 :or.,.thc I) exclusive or non-exclusive use of the Airport by theb-Unl.ted States during the time of war or national emergency. -9. m. 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. *lo. Substance Abuse. Sublessee and its employees and agents shall not use or knowingly allow the use of the subleased aircraft under the influence of an alcoholic beverage or any drug Premises for the purpose of unlawfully driving a motor vehicle or or for the purpose of unlawfully selling, serving, using, alcoholic beverages or any controlled substance, precursor, or- storing, transporting, keeping, manufacturing or giving away analog specified in Division 10 of the California Health and Safety Code, and violation of this prohibition shall be grounds for immediate termination of this Sublease. F-5 This Sublease entered into this - day of October 19-. SUBLESSEE : SUBLESSOR: BY (Title) !By (Title) BY BY (Title) (Title) Address Address s-1 EXHIBIT A DESCRIPTION AND PLAT OF TEE PREMISES Parcel NO. 97-0085-A1 That portion of McClellan-Palomar Airport, in the City of Carlsbad, County of San Diego, state of California, described in deed to the County of San Diego, recorded January 18, 1974 as said County, described as follows: File/Page No. 74-014190 in the 0.ffice of the County Recorder of BEGINNING at the most Southerly corner of land described'ih deed to the City of Carlsbad recorded June 30, 1982 at File/Page No. 82-201566 in said County Recorder's Office; thence alonglFhe;, Southerly boundary of said Carlsbad.land; North 78O42'04" West!, and utility easement granted to said City of Carlsbad on'said 635.35 feet to a point on the Easterly line of a 48.00 foot road 519.92 feet to the beginning of a tangent 326.00 foot radius 1982 deed; thence along said Easterly line, South 11O17'56" West, 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 51O31'08" East, 235.72 feet; thence North 61024'19" East, 355.40 feet; thence along the arc of said cuxve, through a central angle of 50.00 foot radius cuxve concave Westerlyyi thenwrNortheas@erlT North 31O12'50" West, 51.72 feet; thence North 53O37'13" West; 88°35'04n, a distance of 77.30 feet; thence tangent to said cu~e OF BEGINNING. 169.04 feet; thence North 4°55'29" East, 93.29 feet to the POINT 0 North 57O22'14" East, 246.04 feet to che beginning of..a-Etragent j. A- 1 w11m 0 PLAT OF THE PREMISES [SEE ATTACHED] A- 2 EXHIBIT B PEDE= AVIATION ADMINISTRATION REQtJI-S In the event there is any conflict between the provisions in provisions in this Exhibit shall take precedence. this Exhibit and the other provisions in this Lease, the a. Lessee for itself, its heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this 'Lease for a purpose for which a DOT program or activity is extended or for another purpose involving maintain and operate such facilities and services in compliance the provision of. similar services or benefits, Lessee shall with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, DOT, Subtitle A, Office of the Secretary,' Department of Transportation-Effectuation of Title VI of the Part 21, Nondiscrimination'in Federally-Assisted Programs of the Civil Rights Act of 1964, and as said Regulations may be amended. successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant Nnning with the land that: (1) no person on the grounds participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) such land and the furnishing of services thereon, no person on that in the COnSt?XCtiOn of any improvements on, over, or under the grounds of race, color, or national origin shall be excluded subject to discrimination, (3) that Lessee shall use the Premises from participation in, denied the benefits of, or otherwise be to Title 49, Code of Federal Regulations, Department of in compliance with all other requirements imposed by or pursuant 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. b. Lessee for itself, its personal representatives, 0 of race, color, or national origin- shall be excluded from c. That in the event of breach of any of the above nondiscrimination covenants, the County shall have the right to terminate this Lease and to re-enter and repossess said land and the facilities thereon, and hold the same as if said Lease had never been made or issued. This provision does not become effective until the procedures of 49 CFR Part 21 are followed and completed including expiration of appeal rights. d. Lessee shall furnish its accommodations and/or services on a fair, equal and not unjustly discriminatory basis 0 to all users thereof and it shall charge fair, reasonable and not unjustly discriminatory prices for each unit or service; PROVIDED, THAT Lessee may be allowed to make reasonable’and nondiscriminatory discounts, rebates or other similar fype of price reductions to volume purchasers. constitute a material breach thereof and in the event of such noncompliance the County shall have the right to terminate this Lease and the estate hereby created without liability therefore both said Governments shall have the right to judicially enforce or at the election of the County or the United States either or said Provisions. f. Lessee agrees that it shall insert the ab& five e. Non-compliance with Provision d above shall said Lessee grants a right or privilege to any person, f$qm 07 (5) Provisions in any sublease, contract or agreement by which public on the Premises herein leased. corporation to render accommodations and/or services to the g. Lessee 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, participating in any employment activisres covered in 14 CFR Part creed, color. national origin, or sex be excluded from 152, Subpart E. Lessee assures that x person shall be excluded 0 or benefits Of any program or activity covereQby :+hial.subpa4t &, on these grounds from participating in cr receiving the servic- Lessee assures that it will require that -its.bcoverad :” will undertake affirmative action programs and that they will suborganizations provide assurances to Lessee that they similarly require assurances from their suborganizations, as required by44 /., cFR Part 152. Subpart E, to the same effect. or improve the landing area of the Airport as it sees fit, regardless of the desires or view of Lessee and without interference or hindrance. h. The County reserves the right to further develop obligated to Lessee, to maintain and keep in repair the landing area of the Airport and all publicly-owned facilities of the Airport, together with the right to direct and control all activities of Lessee in this regard. i. The County reserves the right, but’shall not be 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 the surface of the Premises herein leased. This public right of right of flight for the passage of aircraft in the airspace above flight shall include the right to cause in said airspace any noise inherent in the operation of any aircraft used for taking off from Or operation on the Airport. 0 navigation or flight through the said airspace or landihg at, 1. Lessee agrees to comply with the notification and review requirements covered in Part I1 of the Federal Aviation Regulations in the event future construction of a building is . , planned for the leased Premises, or in the event of any planned modification or alteration of any present or future building or structure situated on the leased Premises. m. Lessee. by accepting this, expressly agrees for itself, its successors and assigns that it will not erect nor permit the erection of any structure or object, nor permid the with Part 77 Of the Federal Aviation Regulations. In the leveyt growth of any tree on the land leased hereunder that conilicts right to enter upon the land leased hereunder and to remove the the aforesaid covenants are breached, the County reserves the offending structure or object and cut the offending tree, all of which shall be at the expense of Lessee. n. Lessee, by accepting this Lease, agrees'for ' ,itself, its SUcceSsors and assigns that it will not make use of the leased Premises in any manner which might interfere with the landing and taking off of aircraft from said Airport or otherwise constitute a hazard. In the event the aforesaid covenant is Premises hereby leased and cause the'abatement of such interference at the expense of Lessee. breached, the County resemes the right to enter upon the 0. It is understood and agreed that nothing herein of an exclusive right within the meaning of Section 308a of the contained shall be construed to grant or authorize the granting Federal Aviation Act of 1958 (49 U.S.C. 1349a). , subject to whatever right the United States Government 'now has or operation, regulation and taking over of said Airport or the in the future may have or acquire, affecting the control, exclusive or non-exclusive use of the Airport by the United States during the time of war or national emergency. p. This Lease and all the provisions hereof shall be u3.mrn1.m B-3 EXHIBIT C MCCLELLAN-PALOMAR AIRPORT DeVELOPbIENT STANDARDS INDUSTRIAL AREAS TABLE OF CONTENTS 1 . LAND USES ......................... 1 a . Accepted Uses ..................... 1 b . prohibited Uses .................... 1 2 . CONDUCT OF USE ....................... 1 3 . BUILDING SETBACKS ..................... 1 4 . BUILDING CONSTRUCTION ................... 1 ' b Exterior Walls 1 a coverage ........................ 1 . . .................... 5 . HEIGHT LIMIT ........................ 2 6 . MINIMUM DISTANCE BETWEEN BUILDINGS ............. 2 7 . MULTIPLE-OCCUPANCYBUILDINGS ................ 2 8 . REQUIRED SCREENING ..................... 2 a . ParkingAreas ..................... 2 b . screeningwes .................... 2 c . Roof Tops ....................... 2 9 . HEIGHT OF FENCES. WALLS. AND PLANT MATERIALS ........ '3 a . Fences and Walls ................... ~ 7 .. ... b . Plant Materials ..................... 3 a . Parking ........................ .....- 10 . OFF-STREET PARKING AND LOADING .............. 3 ................. e . Improvement of Parking Spaces and Parking Areas .... 3 f . Marking Of Parking SDaces ............... 7 . " .........- g . Parking Restrictions ................. 3 a . Ingress and Egress .................. 4 b . Driveway Aprons ................... ; 4 c . Pedestrian WaLkways .................. 4 11 . ON-SITE CIRCULATION .................... 4 ............................ 12.SIGNS 4 0 .................. .a. Identification .Signs 5 b . Directional Signs ................... 5 uwern~vl c-1 WIv07 . ..................... . ................... d Real Estate Signs 5 c safety Signs 5 e . sign Design . , ..................... 5 13 . TRASH COLLECTION AREAS .................. 5 14 . LANDSCAPING ........................ 5 a . Required Landscaped Areas ............... 5 b . Landscaping Design ................... 6 c . Irrigation ....................... 6 15 . OTHER REGULATIONS ..................... 6 I u3.79m1.vl c-2 I MCCLELLAN-PALObULR AIRPORT INDUSTRIAL AREAS DEVELOPMENT STANDARDS 1. USES a. Accented Use@. The following primary uses will be acceptable subject to approval of the County and compliance with these development standards and the performance standards specified for McClellan-Palomar Airport: (1) Research and development uses. (2) Industrial and manufacturing uses. I (3) warehousing, storage, and wholesaling. (4) Offices, services, sales activity, and other I ", necessary buildings and uses appurtenant to permitted uses specified in 1, 2, and 3 above. buildings or signs pertaining to the sale or lease of the premises on which they are located in accordance with standards contained herein. (5) Signs pertaining only to the use conducted dithin 0 pedestrian circulation, and landscaping in accordancewwkh.. (6) Off-street parking and loading, vekicuLamsand standards specified herein. (7) On the same leasehold or building site with:aw permitted industrial park use, one dwelling unit occupied his/her family may be permitted upon approval of the County. exclusively by a caretaker or superintendent of such use and 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. (8) Finance, insurance, real estate and business b. Prohibited Usee. Uses not falling into the above Lease. categories are not permitted unless specifically set forth in the 2. CONDUCT OF USE. All manufacturing operations shall be conducted'within an enclosed building. All storage shall be conducted within a totally enclosed building or enclosed by a six (6) foot high or higher, view obscuring fence or wall. This storage shall exceed the height of the wall or fence. fence shall not encroach into any required exterior yard. No 3. BUILDING SETBACKS. NO building, structure (except a wall or landscape featUre--Or fence) shall at any time be erected or maintained on any site within twenty-five (25) feet from any site boundary abutting any street. 4. BUILDING CONSTRUCTION. a. Coveraas. All buildings, including accessory buildings and structures, and all paved areas shall not cover more than, ninety percent (90%) of the net lot area. industrial park shall conform to the following: b. Exterior Walls. Any building erected within the (1) Exterior walls shall be concrete or masonry excdpt where specific approval is given by the County for architecturally acceptable alternate materials and design, ., I acceptable to the County. stories or 35 feet in height, whichever is the lesser;, 5. HEIGHT LIMIT. No building or structure shall exceed two bowever, buildings or structures located one hundred (100) feet e, may be permitted upon approval by the County. or more from any property line and exceeding 35 feet in height (2) Exterior walls shall be painted or treated in a manner 6. . MINI DISTANCE BETWEEN BUILDINGS. There shall be a minimum tz(10) feet between all buildings located on the same site. 7. m IP buildings is permitted. In case of multiple occupancy, off-street parking, off-street loading, outdoor trash facilities, and on-site vehicular and pedestrian circulation systems must be permitted by the County where justified and when. such provision shared in common; provided that separate such facilities may be does not.othewise deviate from the specifics and intent of these development standards. ING . Multiple occupancy of 8. REWIRED SCREWINQ. 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 (101)' requirement of Paragraph 14. a. Parkina Areag. Where parking space areas are located shall consist of'one, or any combination of the following types, b. Screenina kea. Where screening is required herein it in an aesthetically designed configuration. (1) Walls: A wall shall consist of concrete, stone, brick, tile, or similar type of solid masonry material a minimum of four 0 inches thick. designed in such a way as to provide desired screening effect. (3) Fences, solid: A solid fence shall be constructed of (2) Berms: A berm shall consist of landscaped mounded earth masonry. combined with plant materials or view obscuring slats to form an , ' opaque screen. (4) Fences, open: An open weave or mesh type fence shall be (5) Planting: Plant materials, when used as a screen, shall used in such a manner, so as to provide screening having a ' consist of compact evergreen plants. They shall be of a,kind, or minimum thickness of two (2) feet within eighteen (18) months after initial installation. E. Roof Tovs. Roof top equipment such as WAC units shall be screened from view from both street level and above. To that end, all duct work and electrical conduits.are to be run underneath the roof surface. In addition, the equipment should be clustered and roof top color shall be considered during the design of the buildings. 0 9. HEIGBT OF FENCES. WALLS, AND PLANTED MATERI-. a. Penceer and Walls. NO decorative or screening fences or walls shall exceed the following height limits above ground elevation: 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. (I) Within required front or side yard setback abutting a (2) All other areas: Eight (8) feet, unless otherwise approved by the County. b. Plant Material@. Except where used as an opaque screen, plant materials may be permitted at any height not constituting a hazard to operation of aircraft based on the judgment of the County. 10. >g. a. arkinq. All parking shall be designed to be provided at the rat!o of one (1) off street parking space per three hundred (300) square feet of gross floor area If the proposed development of the Premises is recognized as a standard warehouse or manufacturing use, paved parking may be provided at the ratio 0 of one space per six hundred (600) square feet. However, the parking ratio of one (1) space per three hundred (300) square remainder of the land area necessary to provide an ultimate feet of gross floor must be available for future parking expansion. This area may be made a part of the landscaped area of the Premises until such time as the additional parking is needed, however it will not be considerekl as part of the required 101 landscaping coverage outlined in Clause 14. (LANDSCAPING) below. greater than one thousand (1,000) square'feet shall be served with a loading area with minimum dimensi,on of twenty (20) feet by twenty (20) feet. One (1) additional loading area shalllbe I provided for buildings with a gross floor area exceeding tweive thousand (12,000) square feet. Loading areas shall not be placed' in any required yard areas or parking spaces. b. Loadina SDacc. All buildings with a gross flogr area c. Dimension@. Each parking space shall be a minimum of nine (9) feet wide and twenty (20) feet deep. the same leasehold Premises with the building or structures they are to serve. d. 5ocatioq. All parking and loading spaces shall be on 0 e. : kinu Areas. (1) All parking spaces or areas, loading berths, approaches, and driveways shall be adequate for anticipated wheel loads, with a structural section designed by a soils engineer, and constructed of Portland Cement (concrete over a base course of adequate Stability. property shall be provided with securely installed concrete wheel barriers or concrete Curb8 not lees than four (4) inches in height. (2) All parking spaces abutting the perimeter of the f. xarkina of Parkina Suacee. The location of each parking space shall be identified and maintained by permanent surface markings. Industrial Park shall conform with the current City of Carlsbad Code. g. Parkina Restrictions. On street parking within the 11. ON-SITE CIRCQLATION. a. Jnaress and Earcsa. C-6 CWIW 0 multiple purposes such as parking and loading areas wherever (1) On-site driveways shall be located so as to serve possible. surface minimum width of not less than fifteen (15) feet per (2) On-Site driveways shall have an unobstructed paved 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. turn-around areas shall be provided as necessary to insure that (4) Unobstructed and adequate maneuvering aisles or' all vehicles shall enter the street or highway in a forwaFd '( manner. I (5) parking areas, driveways, maneuvering aisles, ramps, and turn-around areas shall be kept free and clear of obstructions at all times. b. DriveWw Aprons. All driveway aprons will be installed concurrently with individual site development and shall be commercial driveways of Portland cement concrete, six (6) .inches., thick from curb to right-of-way line with minimum width of 0 fifteen (15) feet at the curb line for one-wyr.trafffsE and. thinrfr;, ,Where driveway aprons will serve semi-trailers, they shall be no.,:!; (30) feet for two-way traffic according to Standard Dr&ng G-.16i&ie' less than twenty-four (24) feet and thirty-six (36) feet appropriate curb returns. respectively, and may be constructed as alley aprons with c. Pedestrian Walkwavq. Easily accessible and adequate pedestrian walkways consisting of concrete, decorative gravel, paving blocks, or other aesthetically pleasing materials shall be provided. identifying the name and address of the occupant and the products, activities or facilities located on the Premises are permitted for each Premises except as hereinafter specified. a. Ideatificatiw. Not more than two (2) signs (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 wall, the roof line at the wall, the eaves of the building, or feet. Such a Sign. may not extend above the top of the parapet portion of the building to which attached, whichever is 0 applicable; nor shall the sign face protrude more than eighteen ( One such sign may be a single- or double-faced monument or 18) inches from the face of the wall upon which it is mounted. free-standing sign, integrated with a landscape arrangement and The size of such sign shall be proportional to the building site located not closer than ten (10) feet to'the front property line. frontage but not exceeding an area of sixty (60) square feet per ground elevation directly beneath the sign. face nor an overall height of eight (8) feet above the average (2) Roof-mounted and pole signs are not pewtted,. except that a sloping roof, the slope of which varies no more than considered wall space for the purpose of placement of wall signs. , ' forty-five (45) degrees from a vertical plane, -shall be (3) More than one wall sign may be permitted only under the following circumstances: one wall sign may be allowed facing each street, provided the combined area of all such Signs shall not exceed seventy-two (72) square feet. (a1 Where a building site abuts more than one street, (b) In the case of multiple occupancy of the same Premises consisting of four or fewer establishments, each may have one (I) single- faced wall sign not exceeding an area of thirty (30) square feet; for five (5) or more establishments, each may have one (1) single-faced wall sign not exceeding an area of twenty-five (25) square feet. Said signs shall be in lieu of, not in addition to, the single wall sign per Premise otherwise specified herein. b. Directional Si-@. Directional signs may be single or double face and are limited. to informational signs identifying eight (8) square feet per face or overall height of eight (8) facilities by category and/or function only. They may not exceed feet above grade. C. Fafetv Si- site to potential dangers and include Stop, Slow, Curve, Danger, . Safety signs alert the passersby on the High Voltage, etc. The shape and color of safety signs shall be of the same size shape and color a8 contained in the current edition of the Manual on Uniform Traffic Control Devices for Streets and Highways as printed by the Bureau of Public Roads, u.S. Department of Commerce. estate sign not exceeding twelve (12) square feet per face giving d. Real Estate Si-. One single or double-faced real information on the construction, sale or lease of the buildiags. permitted. No such sign shall be permitted more than nhety (90) property or premises upon which it is displayed shall be days prior to nor ten (10) days after such. space is available for e. S-. Identification signs must be designed so 0 as to provide uniformity of layout, lettering, graphicsi size, shape, color, method of installation.and construction. The location and design of all identification signs shall be subject be installed without the prior written approval of the County. to the written approval of the County. No sign of any type shall 13. TRASH COLLECTION AREAS. All trash collection areas shall ,be ' and shall be enclosed by a wall and heavy duty solid gates not located outside of areas required to be devoted to landscaping less than six (6) feet in height. Portland cement concrete floors and aprons are required in trash collection areas. 14. -. I l a. Remired Landscadnu Arcaa. Landscaping plans IS L1 be required and submitted for approval of the County. All ex I? eribr yards, except for driveways shall be landscaped and maintained, . however, in no event shall the total landscaped area be less than driveway or sidewalk between street curb and,the property line ten percent (10%) of the gross lot area. All areas not in a, shall be landscaped and maintained by Lessee and may be incl'uded in the above mentioned ten percent on-site requirement. b. Landscauina Dcsiqg. (1) Coverage: At least seventy-five pem3&8tici(753.). of the surface landscaped shall be planted with a compatpble .combinae&on '-3 of trees, shrubs, vines, flowers or ornamental ground cover. THe, groupings, sculptures, pools, fountains, outdoor seating areas, remainder may include features such as pedestrian walkways, rock.. . decorative paving. and gravel areas, interspersed with planting areas. (2) Spacing: Plant material spacing shall conform to the following standards: A mini- 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. Irriuatica?. Prior to commencing any use of the property, required landscaped areas shall be planted and a permanent type sprinkler system or similar watering system or device, adequate to provide water necessary to properly maintain thereafter maintained in good working order. the particular plant materials'used, shall be constructed and Development Standards, all development on the Premises shall 15. OTEER REGULATIONS. In addition to the provisions of'these Aviation Administration Regulations, laws of the State of conform to the standards specified by the applicable Federal California, the Carlsbad Municipal Code and those ordinances and policies promulgated by the Board of Supervisors which regulate EXHIBIT 0 MCCLELW-PALOMAR AIRPORT PERFORMANCE STANDARDS INDUSTRIAL AND AVIATION 0 1 . 2 . 3 . 4 . 5 . 6 . 7 . 8 . 9 . 10 . TABLE OF CONTENTS PAGE NOISE .......................... 1 a . standards ...................... 1 b . Method of Measurement ................ 1 c . sound Level ............. .,. .. .,. .. 1 d . Aircraft Engine Runups ........... ! .... 1 e . Exemptions ..................... 1 GLARE ........... b Prohibitions a standards ELECTROMAGNETIC INTERFERENCE a . Standards ....... b . Method of Measurement . VIBRATION ......... a . Standards ....... b . Method of Measurement . . ....... . ..... I I " .............. '.I. 1 ............... 1 ............... 1 . .............,.. L ............... . 2 ................ 2 ............... 3 . ................ ................. TOXIC MATTER ....................... 3 b Method of Measurement 3 a Standards 3 . ...................... . ................ ODOR ........................... 4 SMOKE. PARTICULATE MATTER. AND OTHER AIR CONTAMINANTS . . 4 a standards 4 LIQUID WASTES 4 b . Prohibitions .................... 4 FIRE AND EXPLOSIVE HAZARDS ................ 4 OTHER REGULATIONS .................... 4 ...................... . ...................... . UI.~S~I.YI D-1 w1u4 a the County Airports. the administration, land use, construction, and development of In the event there is any conflict between these Development above mentioned agencies, the most restrictive shall apply. Standards and the regulations, laws, and/or ordinances of the c-10 DvlWl INDUSTRIAL AND AVIATION ARET@ XCCLELLAN-PAL- AIRPOqT PERFORMANCE STANDARDS 1. a. a. Standarda. At no point on or beyond the boundary of the leasehold Premises shall the maximum sound level resulting continuous noise. If the measured ambient level exceeds the from any Operation, activity or use exce'ed Leq(h) = 70 dB for applicable limit noted above, the allowable one hour average sound level shall be the ambient noise level. The ambient noise level shall be measured when the alleged noise violation,source is not operating. b. Method of Measur ernent. Noise shall be measured with a sound level meter having an A-weighted filter constructed in' accordance with specifications of the American National Standards Institute for type S-2A general purpose sound level meters. (1) Impact noise shall be measured using the fast response of the sound level meter. Impact noises are intermittent sounds such as from a punch press or drop-forge hanuner. (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 (ANS1.4-1971, or the latest revision thereof). If A-weighting is implied. the frequency weighting employed Is not indicated, the d. Aircraft Ensine R~SIUDR. Lessee shall restrict aircraft engine tests and maintenance runups performed on the leasehold Premises to idle power settings. Lessee shall restrict aircraft tests and maintenance runups at greater than power settings to locations on the Airport and during the time of day authorized in writing by the County. e. Exmtioqa. The following sources of noise are exempt from the specified maximum sound level: (1) Transportation vehicles not under the control of Lessee; (2) Occasionally used safety signals, warning devices, and emergency pressure relief valves; and and 7:OO p.m. (3) Temporary construction activity between 7:OO a.m. a. Stand arda. All light fixtures or light sources shall be installed or used so as to comply with,the rules and regulations of the Federal Aviation Administration or any successor agencies and other governmental agencies governing height, type and placement of lights as they may affect the safety of aircraft operations into, from and around the Airport, In addition: pressure sodium lamps and be shielded from above in such'a manner (1) All outdoor lighting 'installed shall utilize' low that the edge of the shield shall be level with or below t,he', center of the light source. I so as to reflect light dohward, away from any other premises. (2) All light fixtures shal.1 be designed and adjusted glare shall be conducted within an enclosed or screened area in (3) Any operation, activity, or use producing intense any point on or beyond the boundary of the 1easehol.d Premises. such a manner that the glare emitted will not be discernible at b. prohibi tione. The use o~~.i,loo~~~g~.s.uoB;,~~cal -oz ., horizontal surfaces, searchlights, and.'re&: blue;. orgresa li*Ea shall be prohibited; provided lights are permitted where required by FAA regulations as , however, red, green and blue necessary for the safety of aircraft operations. 3. ELECTROMAGNETIC INTERPEREN-. a. Btandarda. At &point on or beyond the boundary of the leasehold Premises shall the electromagnetic inte'rference licensed by the Federal Coimunications Commission for resulting from any operation, activity or use of equipment not permitted values tabulated below: communications or navigational purposes exceed the maximum Section of f rom- to Contalnlnu Interference Sour= Electromagnetic Spectrum Maximum Field Strength at Edge of Premises *. 30 - 100 Kilocycles 100 - 535 535 - 1605 Kilocycles 1605 KC.- 44 Megacycles 44 - 88 200 Microvolt/Meter Megacycles 150 Microvolt/Meter 88 - 174 Megacycles 200 Microvolt/Meter 174 - 216 216 - 580 Megacycles 150 Microvolt/Meter Megacycles 580 - 920 Megacycles 250 Microvolt/Meter 300 Microvolt/Meter 500 Microvolt/Meter Kilocycles 200 Microvolt/Meter 300 Microvolt/Meter 920 - 30,000 Megacycles 2000 Microvolt/Meter Irrespective of the above sSandards, any electromagnetic disturbance that causes interference with radio transmissions. aircraft instruments, navigational aids, or other electromagnetic abated upon request of the County. receptors essential to aircraft operations shall be modified or ~ ~~~~~~ """" b. Method of Measurement. The level of radiated electromagnetic interference shall be measured by using standard field strength measuring techniques. The maximum value of the tabulation shall be considered as having been exceeded if at any frequency in the section of the spectrum being measured, the measured field'strength exceeds the maxim value tabulatep for this spectrum section. 4. VIBRATIQPI. I ", the leasehold Premises shall the maxim particle velocity resulting from any operation, or activity or use exceed.0.10 inches per second for steady-rate vibrations and 0.20 incheq per second for impact vibrations. a. Standara. At no point on or beyond the boundary of b. Method of Measurement; Vibration shall be measured with a seismograph or complement of instruments capable of recording vibration displacement and frequency or particle velocity simultaneously in three mutually perpendicular directions. When particle velocity is computed on the basis of displacement and frequency, the following formula shall be used: P.V. = 6.28 F X D P.V. = Particle velocity, inches per second D = Single amplitude displacement of the vibration, inches F - vibration frequency, cycles per second The maximum particle velocity shall be the maximum vector sum of the three mutually perpendicular components recarded simultaneously. (1) steady-rate vibrations are vibrations which are continuous or vibrations in discrete impulses occurring 100 or more times per minute. (2) Impact vibrations are vibrations in discrete impulses occurring less'than 100 times per minute. 5. TOXIC MATTE&. the leasehold Premises shall the release of any airborne toxic a. Ftandar-. At no point on or beyond the boundary of matter resulting from any operation, activity or use exceed 3.0 I) percent of the Threshold Limit Value; pyovided, bowever, if a toxic substance does not have an. established Threshold Limit 0 Value, Lessee shall satisfy the County Department of Public Health that the proposed levels will be safe to the general population. given as a fractional amount of the ACGIH Threshold Limit Value which is the maximum concentration permitted an industrial worker the American Conference of Governmental Industrial Hygienists. for eight hours exposure per day, five days a week, as adopted by (ACGIH). Toxic matter shall be measured at ground level or average of any 24-hour sampling period. habitable elevation using ACGIH or ASTM methods and shall be the b. Method of Measuremenf. The maximum concentration is leasehold Premises shall any odorous gases or other odorgus 6. -* ODOR At no point on or beyond the 'boundaj of the matter resulting from any operation, activity or use be detectable. 7. SMOKE. PARTICULATE MATTER. AND OTHER AIR CONTAMINAyTs. All operations, activities, and uses shall be conducted so as to comply with the rules and regulations of.the San Diego the County Air Pollution Control District governing smoke, particulate , matter, and other air contaminants. a. Standards. All operations, activitiee:Q'a~~sccr.sha.~€ be conducted SO as to comply with the rules and regulations of the State of California Water Quality Control Board - San Diego Region and the County San Diego. b. prohibitioaa. The discharge of any toxic or waste material onto the ground, into any drainage channel, or the discharge of any toxic material into any on-site leaching system shall be prohibited. 9. FIRE AND EXPLOSIVE HAZARDS. All operations, activities, and uses shall be conducted so as to comply with the rules and Uniform Fire Code governing fire and explosive hazards. regulations of the applicable fire protection agency and the 10. OTHER FSGUWTIOXS. 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 California and the applicable local ordinances which regulate land use and operations, In the event of a conflict between ordinances and regulations, the most restrictive shall apply. these Performance Standards and various applicable laws, u3-loml.vY D-5 EXHIBIT' E INSWCE REQUIRPIENTS 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 fqrm specified in this Insurance Exhibit. A. LiabilitV Insurance. Lessee shall procure either Comprehensive General Liability insurance or Comnercial General Liability insurance applying to its use and occupancy of,the Premises, or any part thereof, or any areas adjacent thereto, and the business operated by Lessee or any other occupant on the Premises, in the amounts and form set forth below: I (1) Camrehenaive General Liabilitv Insurance. A policy 0~ of : comprehensive General Liability Insurance which provides limits (b) Fire Damage Limit (Any One Fire): (a) Combined Single Limit per occurrence: ' $5,Ooo,ooo . $ 500,000 (c) Medical Expense (Any One Person) : $ 5,000 0 OR Commercial General Liability Insurance which provides limits of: (2) Commercial General Lisbilitv Ineurancr. A policy of (a) Per Occurrence: (b) Location SDecu (c) Products/Completed Operations: Aggregate: $5,000,000 (dl Personal & Advertising Injury limit: $5,000,000 (e) Fire Damage Limit (Any One Fire) : $ 500,000 (f) Medical Expense Limit (Any One Person): $ 5,000 $5,000,000 $5,000,000 policy provided by Lessee under this Insurance Exhibit shall contain the following coverage: (3) 3Q cov . Any liability (a) Premises and Operations (b) Products/Completed Operations (c) Contractual Liability expressly including (e) Independent Contractors' Liability (dl Personal Injury Liability (f) Pollution liability with no exclusion for (g) Severability of Interest clause providing that the 1iability.assumed under this Lease. operations at the Premises coverage applies separately to each insured, and that an act or omission by one of the named U3-7957fl.W E-1 WIW other named insureds. insureds shall not reduce or avoid coverage to the (4) Additional Insured Endorsement. Any general liability policy provided by Lessee under this Insurance Exhibit shall contain an endorsement which applies its coverage to the County, the members Of the Board of Supervisors of the County, and the officers, agents, employees and volunteers of the County, individually and collectiyely, as additional insureds. by the additional insured endorsement described above shall apply (5) Prima- Insurance Endorsema. The coverage afforded as primary insurance, and any other insurance maintained b;v the county, the members of the Board of Supervisors of the County, or its officers, agents, employees and volunteec?, or any the County with such coverage. self-funded program, shall be excess only and not contribqtinv 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 damage to property. If the coverage contains one or more relating to liability for injury to or.death of persons and aggregate limits, a minimum of 508 of any such ,aggregate lid.. must remain available at all times; if over 508"ot any aggregurre additional coverage to be purchased by Lessee to restore the limit has been paid or reserved, the County may require broad as possible excess liability coverage to achieve the total required limits. Lessee may combine primary, umbrella and as limits indicated above. Any umbrella or excess liability policy shall include the Additional Insured Endorsement described below. B. All Risk Fire Ineuranca. A standard fire policy including all-risk or special form perils, in-an amount of ninety percent 90% of the full replacement cost of the Building and of demolition and debris removal. Such policy or policies of. Improvements, without deduction for depreciation, including costs insurance shall include coverage for (i) Lessee's merchandise, (iil fixture8 owned by Lessee, (iii) any items identified in this Lease as improvements to the Premises constructed or owned either by the County or Lessee, and (iv) the personal property of Lessee, its agents and employees. (6) Porn of Liability Ineurance Policia. All liability (1) Deductible. The deductible for the required fire insurance policy shall not exceed $10.000 per occurrence and shall be borne by Lessee. destruction to the Premises covered by the fire or physical (2) Proceeds of Insurance. In the event of damage or 0 the proceeds Of such insurance shall be allocated as follows: hazard insurance required of Lessee under this Insurance Exhibit, policies shall be payable, first, to the holder of any mortgage (a) Proceeds from any or all of said insurance or deed of tNst permitted under this Lease to the extent required by said mortgage or deed of trust; (b) Any balance remaining after application of insurance proceeds in the manner indicated in subparagraph (a), above, shall be credited to Lessee. If Lessee, or the County, is required to rebuild or restore the Premises pursuant to the provisions of this Lease, the amount of insurance proceqds credited to Lessee shall be impounded with an independent depository acceptable to the County in accordance'with a kider to disbursed to pay, to the extent such portion of proceeds pap,be the insurance policy setting forth this procedure, to be' , sufficient, Lessee's obligations to repair and restore the I Premises pursuant to the provisions of this Lease; and expenses of repair and restoration referenced in subparagraph (b) , above, any balance of insurance proceeds remains; it s'hall be retained by Lessee. Should it be anticipated that the proceeds of insurance to be received by Lessee will be this Lease, Lessee shall have the option to either (i) terminate insufficient to repair or restore the Premises as required by 0 this Lease and turn over all insurance proceeds from the impound account to the County, or (ii) repair or restore the Premises as required under this Lease using the available insurance proceeds, with any shortfall in the amount necessary to repair or restore Section 20.5 (UNINSURED CASUALTY) under Article 20 (DAMAGE OIL the Premises being contributed, in cash, by Lessee. (See, DESTRUCTION). (c) In the event that, after paying all of the costs . contrary, upon any termination of this Lease all proceeds from (d) Notwithstanding any provision of the foregoing to the 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. ~ Co eh Insurance. Lessee shall procure Comprehensive Libbi Automobile/Aircraft/Watercraft. Liability Insurance, applying to by Lessee or any other occupant on the Premises. Such policy its use and occupancy of the Premises and the business operated damage, however occasioned, occurring during the policy term, in shall be written for bodily injury, including death, and property 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/aircraft/watercraft. Notwithstanding any provision of the foregoing to the contrary, LA1.79JnI.vI E-3 OUIW it determines there is no significant exposure to these risks. however, such coverage may be waived in writing by the County if D. Statuto- Insurance. Lessee shall provide the statutory amount of workers' Workera' Comuensation and Famlover'a Liabilie compensation insurance, with a broad form all-states endorsement, Million Dollars ($3,000,000) per occurrence for all employees and with employer's liability coverage of no less than Three engaged in services or operations under this Lease. Lessee shall also provide U.S. Longshoremens' and Harbor Workers' Act coverage, when applicable. E. General Provia-. (1) Certificatea o.f Insurance. Lessee shall, as soon as practicable following the placement of insurance required by this Insurance Exhibit, but in no event later than ten (10) days prior to the Effective Date, deliver to the County certified copies of 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,. Les.sse 0 policies of insurance of Lessee which Lessee has not delivered*< to shall permit the County at all reasonable timen.-totinup*ct any, the County. "clainis made" basis, the Certificate of Insurance shall clearly state so. In addition to the coverage requirements specified above, such policy shall provide that: . the actual insurance policies specified by this Insurance (2) Claims Made Co veracae. If coverage is written on a precedes Lessee's possession of the Premises (including subsequent policies purchased as renewals or replacements). (a) The policy retroactive date coincides with or (b) Lessee will-make every effort to maintain similar insurance during the required extended period of coverage following expiration of the Lease, including the requirement of adding all additional insureds. (c) If insurance is terminated for any reason, Lessee shall purchase an extended reporting provision of at least two years to report claims arising in connection with the Lease. or incidents that might give rise to future claims. (d) The policy allows for reporting of circumstances 'Remedies. Lessee! 8 failure to procure the insuranc~h~p~~~~~~by (3) Failure to Obtain or Maintain Insurance: this Insurance Exhibit, or failure to deliver certified copies or 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. appropriate certificates of such insurance, or failure to make (4) No Limitation of Obliaatia . The foregoing requirements as to the types-and limits of insurance coverage to be maintained by Lessee, and any approval of said insurance by and shall not in any manner limit or qualify the liabilities and the County or its insurance consultant(s), are not intended to obligations otherwise assumed by Lessee pursuant to the Agreement, including, but not limited to, the provisions concerning indemnification. (5) Notice of Cancel1 ation or Chanuo of Coveraue. All certificates Of insurance provided by Lessee must evidence that the insurer providing the policy wili give-the County thirty (30) days' written notice, at the address shown in the Section of this Lease entitled "Noticean below, in advance of any cancellation, lapse, reduction or other adverse change respecting such insurance. ~- (6) pualifvinu Insurere. All policies of insurance . ' approved to do business in the State of California by the State required hereby shall be issued by companies which have been Department of Insurance, and which hold a current policy holder's 0 alphabetic and financial size category rating of not less than. A, VI1 according to the current Best's Key Rating Guide, or a by the County's Risk Manager. company of equal financial stability that is approved in writing (7) Review of C at any time to review the coverage, form and amount of insurance overaay. The County shall retain the right obtain insurance reasonably sufficient in coverage, form and required by this Insurance Exhibit and may require Lessee.to amount to provide adequate protection against the kind and extent of risk which exists at the time a change in insurance-is required. (8) Sel f-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 Manager, Lessee's (i) net worth, and (ii) reserves for payment of self-insurance. however, if, in the opinion of the County's Risk claims of liability against Lessee, are sufficient to adequately compensate for the. 1ack.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. 0 sublessee, and any sub-sublessee, of all or any portion of the (9) sublesseea' Insurance. Lessee shall require any @ Insurance Exhibit prior to occupancy of the Premises.. Premises to provide the insurance coverage described in this (10) Waiver of Subrouatioq. Lessee and the County waive all or occupant of the building, or against the officers, directors, rights to recover against each other or against any other tenant shareholders, partners, employees, agents or invitee8 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 improvements, and alterations of either the County or Lessee in or on the Premises, to the extent that the proceeds received from any ,insuraq e carried by either the County or Leisee. other than procee 2 s from any program of self-insurance, covers any such Claim or damage. Lessee under this Insurance Exhibit shall be a standard waiver of Included in any policy or policies of insurance prwided~Qy ,'#, rights of subrogation against the County by the insurance company issuing said policy or policies. 8-6 ' EXRIBIT F MCCLELWLN-PALOMFIR AIRPORT THE COUNTY OF SAN DIEGO REQUIRED SUBLEASE PROVISIONS The following paragraphs must appear i'n each sublease of the$, exactly as written. Premises. Paragraphs marked with an asterisk (f) must be used, 1. Partiel. This Sublease is entered into by and between , hereinafter called nSublessorn, and , hereinafter called "Sublessee", as a Sub1 ase , 19- (the "Master Lease"), also known as the County under the Palomar Transfer Station Lease Agreement dated of San Diego Contract NO. . Sublessor, under ,thi Sublease, is Lessee and the County of San Diego is Lessor und 3 r said Master Lease. 7 2. Pr-isea. Sublessor leases to Sublessee and Sublessee hires the following described Premises together with the appurtenances, situated in the County of San Diego, State or California: 0 Said Premises are shown on mibit 4 attached hereto. 3. B. The term of this Sublease Agreement shall be for - , connnencing terminating terminated as Provided herein. [Note: Termination date nf , 19:. and , unless sooner . ~~ ~ "" " Sublease cannoi exceed expiration date of Master Lease.) 4. Rental. Sublessee shall pay to Sublessor as rent for the Premises in advance on the first day of each calendar month of the term of this Sublease without deduction, offset, prior notice or demand, in lawful money of the United States, the sum of Dollars and the month, or if the Sublease termination date is not the last day of the month, a prorated month installment shall be paid at Sublease commences and/or terminates. Receipt of $ the then current rate for the fractional month during which the additional amount of $ is hereby acknowledged for rental for the first month, and the security for performance under this Sublease. In the event Sublease throughout the term, upon Sublessee vacating the Sublessee has performed all the terms and conditions of this Premises, the amount paid as a security deposit shall be returned ($. ). If the connnencement date is not the first day of Cents as non-interest bearing to Sublessee after first deducting any sums owning to Sublessor. specified in the Master Lease, generally described as the office and storage facilities for equipment used in collecting and facility, and a trash transfer station, including office, repair transferring trash, and for no other purposes without prior written consent of Sublessor. Sublessee’s business shall be established and conducted throughout the,teq hereof in a first class manner. Sublessee shall not use the Premises for, or carry on, or permit to be c.arried on, any offensive, noisy or dangerous trade, business, manufacture or occupation. 5. 03. Sublessee shall use the Premises for uses operations of a solid waste collection business, a recycling *6. IndemnificatiQg . Sublessee shall indemnify and save harmless the County of San Diego, it officers, agents, arid employees from and against any and all claims, demands, liabilities, or loss of any kind or nature which the Courfty, its be imposed upon them or any Df them for injury to, or death or, officers, agents, or employees may sustain or incur, or which may persons or damage to property, as a result of, arising out of, or use of the Subleased Premises by Sublessee, its officers, agents, in any manner connected with.this Sublease or with occupancy and employees, licensees, patrons or visitors except as attributable to an 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. e *7. q n .w Tkkei#J” is.,,. subject to all of the.terms and conditions of the Master Leases.. and Lessee in said Master Lease, to the extent said terms and Sublessee shall assume and perform the obligations of Sublessor conditions are applicable to the Premises subleased pursuant to this Sublease. Sublessee shall not cornnit or permit to be conanitted on the Premises any act or omission which shall violate any termor 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 agrees that Sublessee waives all rights to any form of Relocation the County to Sublessee. Sublessee hereby acknowledges and’ Assistance provided for by local, State, or Federal law that Sublessee--may be entitled to by reason of this Sublease. 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. *0. Federal Aviation Administration Reauircmm~. In the a. Sublessee, for itself,, its heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that in the event facilities are constructed, maintained, or otherwise operated on the said 0 program or activity is extended or for another purpose involving property described in this Sublease for a purpose for which a WT the provision Of similar services or benefits, Sublessee shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code 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. Sublessee, for itself, its personal of the consideration hereof, does hereby covenant and agr,ee as a , ' ' representatives, successors in interest, and assigns, as a part of race, color. or national origin shal1,be excluded from covenant runding with the land that: (1) 'no person on the grounds participation in. denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race. color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subject to discrimination, (3) that Sublessee shall use the Premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Nondiscrimination in Federally-Assisted Programs of the Transportation, Subtitle A, Office of the Secretary, Part 21, 0 Civil Rights Act Of 1964, and as said Regulations may be amended. Department of Transportation-Effectuation of Title VI of the .. nondiscrimination covenants, Sublessor shall have the right to c. That in the event of breach of any of the above terminate this Sublease and to re-enter and repossess said land and the facilities thereon, and hold the same as if said Sublease had never been made or issued. This provision does not become effective until the procedures of 49 CFR Part 21 are followed and completed including expiration of appeal rights. d. Sublessee shall furnish its acconmodations and/or services on a fair, equal and not unjustly discriminatory basis to all users thereof and it shall charge fair, reasonable and not unjustly discriminatory prices for each unit or service; PROVIDED, THAT Sublessee may be allowed to make reasonable and nondiscriminatory discounts, rebates or other similar type of price reductions to volume purchasers. e. Non-compliance with Provision d above shall constitute a material breach thereof and in the event of such non-compliance Sublessor shall have the right to terminate this Sublease and the estate hereby created without liability United States, any or all said entities shall have the riqht to therefore, or at the election of Sublessor, the County or the 0 judicially enforce said Provisions. five (5) Provisions in any sub-sublease, contract or agreement by f. Sublessee agrees that it shall insert the above 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. affirmative action program as required by 14 CFR Part 152, g. Sublessee assures that it will undertake an Subpart E, to insure that no person shall, on the grounds of race, creed, color, national origin, or sex be excluded from participating in any employment activities covered in 14 CFR Part 152, Subpart E. Sublessee assures that no person shall be excluded on these grounds from participating in or receivifg 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 they1 ',, similarly will undertake affirmative action programs and that they will require aesurance from their suborganizations, as required by 14 CFR Part 152, Subpart E, to the same effort. 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 Sublessee, and without interference or hindrance. i. the County reserves the right, but shall noL~ be a 0 obligated to Sublessee, to maintain an&.keapprrixbsepai.rahe landing area of the Airport and all publicly-owned'"faWP3.ities 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. 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 noise lnherent in the operation of any aircraft used for of flight shall include the right to cause in said airspace any navigation or flight through the said airspace or landing at, taking off from or operation on the Airport. k. There is hereby reserved to the County, its 1. Sublessee agrees to comply with the notification Aviation Regulations in.the event future construction of a and review requirements covered in Part 77 of the Federal building is planned for the subleased Premises, or in the event of any planned modification or alteration of any present or future building or structure situated on the subleased Premisea, u3.nm1.v~ F-4 OVI~ itself, its successors and assigns that it will not erect nor 0 permit the erection of any structure or object nor permit the growth of any tree on the land subleased hereunder that conflicts with Part 77 Of the Federal Aviation Regulations. In the event the aforesaid covenants are breached, the County and/or Sublessor to remove the offending structure or object and cut the offending reserve the right to enter upon the land subleased hereunder and tree, all of which shall be at the expense of Sublessee. m. Sublessee by accepting this expressly agrees for n. Sublessee by accepting this Sublease agrees for itself, its successors and assigns that it will not make use of the subleased Premises in any manner which might interfere with the landing and taking off of aircraft from the Airport or otherwise constitute a hazard. In the event the aforesaid covenant is breached, the County and/or Sublessor resenre the right to enter upon the Premises hereby. subleased and cause the abatement of such interference at the expense of Sublessee. 0. It is understood and agreed that nothing herein of an exclusive right within the meaning of Section 308a of the contained shall be construed to grant or authorize the granting Federal Aviation Act of 1958 (49 U.S.C. 1349a). p. This Sublease and all the provisions hereof shall be subject to whatever right the United States Government now has or in the future may have or acquire, affecting the control, operation, regulation and taking over of said Airport or the States during the time of war or national emergency. exclusive or non-exclusive use of the Airport by the United 09. W. Sublessee shall not erect nor cause to be written approval of the County. A written request for sign erected any sign on the Subleased Premises without the prior proposed sign and said application must be concurred in by approval must include the size, type, color and location of the Sublessor before submittal to the County. agents shall not use or knowingly allow the use of the subleased *lo. Subetance AbueQ. Sublessee and its employees and aircraft under the influence of an alcoholic beverage or any drug Premises for the purpose of unlawful1.y driving a motor vehicle or or for the purpose of unlawfully selling, serving, using, storing, transporting, keeping, manufacturing or giving away alcoholic beverages or any controlled substance, precursor, or- analog specified in Division 10 of the California Health and Safety Code, and violation of this prohibition shall be grounds for immediate termination of this Sublease. F- 5 Wlyn This Sublease entered into this __ day of October 19-. SUBLESSEE: SUBLESSOR: Address Address ''I S-1 " 1 EXHIBIT B 2 SUBLEASE AND DISPOSAL AGREEMENT BETWEEN ALLIED WASTE 3 INDUSTRIES, INC. AND WASTE MANAGEMENT, INC. ~ ~~ 1 70017373V1 3.3 pcnnitian of Wur” if: Unacceutrble Wute, Wade shall be considd ”Vaacccptabk .- 0 7. REPRESEMATIONS. WARRAh'TES nND COVENAMS 0 0 .- .. . - .." . .- P.L BY xu 14 1 EXHIBIT C 2 SUBLEASE AGREEMENT FOR PALOMAR TRANSFER STATION 3 BETWEEN THE CITY AND THE CONTRACTOR 10011313V1 1 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 California (“Sublessor”), and Palomar Transfer Station, Inc., a California corporation (“Sublessee,”) as a sublease under a certain Palomar Transfer Station Lease Agreement, APN # 97-0085-A1, with County of San Diego, dated October 31, 1997 (the “Master Lease”). Sublessor (as successor-in-interest by assignment of the 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 County of San Diego, State of California 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 the entirety of the 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. m. The term of this Sublease shall commence on June 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 defined in, and subject to all the terms and provisions 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 ofnot less than ten (10) years; provided further, that the term of this Sublease shall in no event exceed the expiration of the Master Lease. lW17113v2 1 4. u. Sublessee shall pay to Sublessor as monthly rent for the Premises, in advance on the first day of each calendar month of the term of this Sublease without deduction, offset, prior notice or demand, in lawful money of the United States, the s& of One Dollar ($1 .OO). 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 andor terminates. Receipt of $1 .OO 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 in a first class manner. - 6. Indemnification. Sublessee shall indemnify and save harmless the County and Sublessor, as applicable, and their respective officers, agents, and employees from 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 of the Premises by Sublessee, its officers, agents, employees, licensees, patrons or visitors except as attributable to an act or omission of the County or Sublessor, as applicable. 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 or Sublessor, as applicable, on account of any such claims, demands, or liabilities. 7. Provisions Constituting Sublease. This Sublease is subject to all of the terms and conditions of the Master Lease. Sublessee shall assume and perform the obligations of Sublessor and Lessee in said Master Lease, to the extent said terms and conditions are applicable to the Premises subleased pursuant to this Sublease. Sublessee shall not commit or permit to be committed on the Premises any act or omission which shall violate any term or condition of the Master Lease. In the event of the termination of Sublessor’s interest as Lessee under the Master Lease for any reason, then, except as otherwise consented to by the County, this Sublease shall terminate concurrently therewith without any liability of Sublessor (except to the extent such termination is due to Sublessor’s default under the Master Lease not arising from 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 Reauirements. 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 70017113~2 2 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 purpose involving the provision of similar services or benefits, Sublessee shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code 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. Sublessee, for itself, its personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that: (1) no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subject to discrimination, (3) that Sublessee shall use the Premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, 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 covenants, Sublessor shall have the right to terminate this Sublease and to re-enter and repossess said land and the facilities thereon, and hold the same as if said Sublease had never been made or issued. This provision does not become effective until the procedures of 49 CFR Part 21 are followed and completed including expiration of appeal rights. d. Sublessee shall furnish its accommodations andor services on a fair, equal and not unjustly discriminatory basis to all users thereof and it shall charge fair, reasonable and not unjustly discriminatory prices for each unit or service; PROVIDED, THAT Sublessee may be allowed to make reasonable and nondiscriminatory discounts, rebates or other similar type of price reductions to volume purchasers. e. Non-compliance with provision (d) above shall constitute a material breach thereof and in the event of such non-compliance Sublessor shall have the right to terminate this Sublease and the estate hereby created without liability therefore, or at the election of Sublessor, the County or the United States, any or all said entities shall have the right to judicially enforce said provisions. f. Sublessee agrees that it shall insert the above five (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, 7W17113VZ 3 creed, color, national origin, or sex be excluded from participating in any employment activities covered in 14 CFR Part 152, Subpart E. Sublessee assures that no person shall be excluded on these grounds from participating in or receiving the services or benefits of any program or activity covered by this subpart. Sublessee assures that it will require that its covered suborganizations provide assurances to Sublessee that they similarly will undertake affirmative action programs and that they will require assurance from their suborganizations, as required by 14 CFR Part 152, Subpart E, to the same effort. h. The County reserves the right to Mer develop or improve the landing area of the Airport (as defined in the Master Lease) as it sees fit, regardless of the desires or view of Sublessee, and without interference or hindrance. 1. 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 construction of a building is planned for the subleased Premises, or in the event of any planned modification or alteration of any present or future building or structure situated on the subleased Premises. m. Sublessee by accepting this expressly agrees for itself, its successors and assigns that it will not erect nor permit the erection of any structure or object nor permit the growth of any tree on the land subleased hereunder that conflicts with Part 77 of the Federal Aviation Regulations. In the event the aforesaid covenants are breached, the County and/or Sublessor reserve the right to enter upon the land subleased hereunder and to remove the offending structure or object and cut the offending tree, all of which shall be at the expense of Sublessee. n. Sublessee by accepting this Sublease agrees for itself, its successors and assigns that it will not make use of the subleased Premises in any manner which might interfere with the landing and taking off of aircraft from the Airport or otherwise constitute a hazard. In the event the aforesaid covenant is breached, the County andor Sublessor reserve the right to enter upon the Premises hereby subleased and cause the abatement of such interference at the expense of Sublessee. 7W17113V2 4 0. It is understood and agTeed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of Section 308a of the Federal Aviation Act of 1958 (49 U.S.C. 1349a). p. This Sublease and all the provisions hereof shall be subject to whatever right the United States Government now has or in the future may have or acquire, affecting the control, operation, regulation and taking over of said Airport or the exclusive or non-exclusive use of the Airport by the United States during the time of war or national emergency. 9. m. Sublessee shall not erect nor cause to be erected any sign on the 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. Substance Abuse. Sublessee and its employees and agents shall not use or knowingly allow the use of the subleased Premises for the purpose of unlawfully driving a motor vehicle or aircraft under the influence of an alcoholic beverage or any drug or for the purpose of unlawfully selling, serving, using, storing, transporting, keeping, manufacturing or giving away alcoholic beverages or any controlled substance, precursor, or analog specified in Division 10 of the California Health and Safety Code, and violation of this prohibition shall be grounds for immediate termination of this Sublease. 1 1. Prime Lease. Sublessor, as Lessee under the Master Lease represents and warrants to Sublessee that, to Sublessor’s knowledge as of the date of the commencement of the term of this Sublease: (a) Sublessor has delivered to Sublessee full and complete copies of the Master Lease and all other related agreements between Sublessor and Master Lessor; (b) the Master Lease is in full force and effect; and (c) no event of default has occurred under the Master Lease on the 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 the requirement of the giving of notice andor the expiration of the period of time to cure under, or with respect to, any of such agreements. 12. Ouiet Eniovment. Sublessor has full power and authority to enter into this Sublease, subject to the consent of Master Lessor. So long as Sublessee is not in default in the performance of its covenants and agreements in this Sublease, Sublessee’s quiet and peaceable enjoyment of the Premises shall not be disturbed or interfered with by Sublessor, or by any person claiming by, through, or under Sublessor. 13. Further Provisions Regarding Sublease. Sublessee agrees that it will provide and maintain the insurance coverage required of Sublessor pursuant to the Master Lease with respect to the Premises. Each party agrees that it will not, by its act or omission to act, cause a default under the Master Lease. In fiutherance of the foregoing, the parties hereby contii and agree, each to the other, that it is not practical in this Sublease to enumerate all of the rights and obligations of the various parties under the Master Lease and specifically to allocate those rights and obligations in this Sublease. Accordingly, in order to afford to Sublessee the benefits of this Sublease and of those provisions of the Master Lease which by their nature are intended to benefit the party in possession of the Premises, and in order to protect Sublessor against a default 70017113v2 5 by Sublessee which might cause a default or event of default by Sublessor under the Master Lease: a. Except as otherwise expressly provided herein, Sublessor shall perform its covenants and obligations under the Master Lease which do not require for their performance possession of the Premises and which are (i) not reasonably anticipated to be performed by Sublessee or (ii) not otherwise to be performed hereunder by Sublessee on behalf of Sublessor. b. Except as otherwise expressly provided herein, Sublessee shall perform all affirmative covenants and shall refrain from performing any act which is prohibited by the negative covenants of the Master Lease; where the obligation to perform or refrain from performing is by its nature imposed upon the party in possession of the Premises. c. Sublessor shall not agree to an amendment to the Master Lease which might have an adverse effect on Sublessee’s use or occupancy of the Premises, increase Sublessee’s costs under this Sublease or have an adverse effect on the use of the Premises for their intended purpose, unless Sublessor shall first obtain Sublessee’s prior written approval thereof, which approval by Sublessee shall not be unreasonably withheld or delayed. 14. Reversion to Sublessee of Sublessor’s Interest in Master Lease. If this Sublease is ever terminated or expires other than as a result of default by Sublessee, all right, title and interest in the Master Lease shall revert to Sublessee; provided, however, that Sublessor shall cure any defaults and indemnify Sublessee for any liabilities arising during the period prior to such reversion, other than such defaults and liabilities caused by Sublessee’s own breach or failure to perform. 15. Additional Provisions. a. Governing Law. This Sublease shall be governed by and construed in accordance with the laws of the State of California. b. Waivers. No waiver or breach of any covenant or provision shall be deemed a waiver of any other consent or provision, and no waiver shall be valid unless in writing and executed by the waiving party. c. Construction. Headings are used solely for the parties’ convenience, are not a part of this Sublease, and shall not be used to interpret this Sublease. This Sublease shall not be construed as if it had been prepared by one of the parties, but rather as if both parties have prepared it. 70017113v2 6 This.Sublease Agreement is entered as of the date first set forth above. SUBLESSEE: SUBLESSOR PALOMAR TRANSFER STATION, INC. CITY OF CARLSBAD, a municipal corporation By: Title: By: Title: Address: 8364 Claremont Mesa Blvd. Address: 1200 Carlsbad Village Drive San Diego, CA 921 11 Carlsbad, CA 92008 Am: General Manager Attn: City Manager 70017113~2 7 EXEIBIT A DESCRIPTION AND PLAT OF TEE PREMISES Parcel No. 97-0085-A1 That portion of McClellan-Palomar Airport, in the City of deed to the County of San Diego, recorded January 18, 1974 as Carlsbad, County of San Diego, State of California, described in File/Page No. 74-014190 in the 0.ffice of the County Recorder of said County, described as follows: BEGINNING at the most Southerly corner of land described'in deed to the City of Carlsbad recorded June 30, 1982 at File/Page No. Southerly boundary of said Carlsbad-land; North 78O42'04" Weat, 82-201566 in said County Recorder's office; t,hence alongithe, 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 11O17'56" 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°45'22n, a distance of 311.55 feet; thence tangent to said curve South 43O27'26" East, 112.20 235.72 feet; thence North 610.24'19" E-.. 315;4fLfeet; thence : feet; thence leaving said Easterly line, North 51°31'08" East, 0 North 57O22'14" East, 246.04..-feet..~o-~he.?~t€:,a.~~angent along the arc of said cume,; throug@.:ayz-angde o*:i 50. 00 foot radius cume concave .Wedypr tHenCer.rNo'rt-heaerly North 31°12'50" West; 51:72' feet.; thence .N~%3%37'X3;?=WesOr; 88035'04m, a distance ..0€"17;'30 Ye-.: thessee-~anga~~:t~~s~..~~ume OF BEGINNING. 169.04 feet; thence N0rth'4~S5'29~ Eas+, 93 .'29dsfeat. tcrzthePOIN'T u3.nm1.w A- 1 PLAT OF TEE PRpdISEs [SEE ATTACHED] I 'I . . . " -. .. . .. . A-2 Wlvn I PALOPI A I2 i 1 2 EXHIBIT D GUARANTY AGREEMENT 70017373V1 1 GUARANTEE THIS GUARANTEE (this “Guarantee”) is made and entered into as of June 1, 2002, by ALLIED WASTE NORTH AMERICA, INC., a Delaware corporation (“Gyarantor”) in favor of the City of Carlsbad, a municipal corporation of the State of California (thVGuaranteed Party”). Recitals A. Palomar Transfer Station, Inc. (“PTS” or the “Contractor”), a wholly-owned subsidiary of Guarantor, and the Guaranteed Party are parties to an Agreement for Transfer Station and Disposal Services, dated as of June 1,2002 (the “Agreement”). B. The guarantee by Guarantor of the performance by PTS of its obligations under the Agreement is a requirement under the Agreement and a condition to the entering into the Agreeme it by the Guaranteed Party, and Guarantor has agreed to unconditionally guarantee the perf0rmat.w of PTS’s Obligations under the Agreement. In consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: Agreement 1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Agreement. 2. Guarantee. Guarantor irrevocably and unconditionally guarantees to the Guaranteed Party the complete and timely performance of, satisfaction of and payment of each and every financial obligation (the “Obligations”) of PTS contained in the Agreement in accordance with its terms and conditions. Guarantor agrees that if PTS shall fail to perform any of its Obligations under the Agreement when due in accordance with the terms thereof, it shall, upon demand made by the Guaranteed Party, immediately and fully perform, or cause to be performed, each Obligation under the Agreement. Guarantor agrees that its Obligations under this Guarantee shall remain unaffected and Guarantor shall perform PTS’s Obligations as if it were primarily liable for such performance notwithstanding that the Obligations of PTS under the Agreement are void, voidable or unenforceable for any reason. 3. Absolute Nature of Guarantor’s Obligations. The Obligations of the Guarantor hereunder are direct, immediate, absolute, continuing, unconditional and unlimited, and with respect to any Obligation of PTS under the Agreement, shall constitute a guarantee of payment and not a collection, and are not conditioned upon the genuineness, validity, regularity or enforceability of the Agreement. Guarantor further agrees that the Obligations of Guarantor pursuant to this Guarantee shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by any circumstance or condition (whether or not Guarantor shall have any knowledge thereof), including without limitation: (a) any lack of validity or enforceability of the Agreement; (b) any termination, amendment, modification or other change in the Agreement; (c) any failure, omission or delay on the part of PTS, Guarantor, or the Guaranteed Party to conform or comply with any material term of the Agreement or any failure of the Guaranteed Party to give notice of any event of default by PTS under the Agreement; (d) any waiver, compromise, release, settlement or extension of time of performance or observance of any of the Obligations or agreements contained in the Agreement; (e) any action or inaction by the Guaranteed Party under or in respect of the Agreement, any failure, lack of diligence, omission or delay on the part of the Guaranteed Party to enforce, assert or exercise any right, power or remedy conferred on it in the Agreement, or any other action or inaction by the Guaranteed Party; (Q any change in the ownership of the capital stock of PTS or Guarantor or any change in the relationship between PTS and Guarantor or any termination of any such relationship; (g) any release or discharge by operation of law of PTS or Guarantor from any obligation or agreement contained in the Agreement or any agreement executed in connection therewith; (h) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against PTS or Guarantor, or any of the property of either of them, or any allegation or contest of the validity of this Guarantee in any such proceeding (it is specifically understood, consented and agreed to that, to the extent permitted by law, this Guarantee shall remain and continue in full force and effect as if any such proceeding had not been instituted), it being the intent and purpose of this Guarantee that Guarantor shall and does hereby waive all rights and defenses to the Guarantee which might accrue to it by reason of any such proceeding; (i) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against PTS or Guarantor. Should any money due or owing under this Guarantee not be recoverable from Guarantor due to any of the matters specified in Section 2 above, then, in any such case, such money, together with all additional sums due hereunder, shall nevertheless be recoverable from Guarantor as though Guarantor were principal obligor in place of PTS pursuant to the terms of the Agreement ind not merely a guarantor and shall be paid by Guarantor forthwith subject to the terms of this Guarantee. 4. Reuresentations and Warranties. Guarantor represents and warrants to the Guaranteed Party that this Guarantee has been duly executed and delivered by Guarantor and 2 constitutes the legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms. 5. Waivers by Guarantor. Guarantor hereby unconditionally and irrevocably waives: (a) notice from the City of its acceptance of this Guarantee; (b) notice of any of the events referred to in Section 2 hereof except to the extent that notice is required to be given as a condition to the enforcement of the Obligations; (c) to the fullest extent lawfully possible, all notices which may be required by statute, rule of law or otherwise to preserve intact any rights against Guarantor, except any notice to PTS required pursuant to the Agreement or applicable law as a condition to the performance of any Obligation; (d) to the fullest extent lawfully possible, any statute of limitations defense based on a statute of limitations period which may be applicable to guarantors (or parties in similar relationships) which would be shorter than the applicable statute of limitations period for the underlying claim, provided in no event shall this Guarantee extend more than four (4) years beyond the term of the Agreement, or the earlier termination thereof; (e) any right to require a proceeding first against PTS; (0 any requirement that PTS be joined as a party to any proceeding for the enforcement of any term of the Agreement; (g) the requirement of, or the notice of, the filing of claims by the City in the event of the receivership or bankruptcy of PTS; (h) all demands upon PTS or any other person and all other formalities the omission of any of which, or delay in performance of which, might, but for the provisions of this Section 4, by rule of law or otherwise, constitute grounds for relieving or discharging Guarantor in whole or in part fiom its absolute, present, irrevocable, unconditional and continuing Obligations hereunder; (i) the right to terminate this Guarantee or to be released, relieved, exonerated or discharged from its Obligations under this Guarantee for any reason whatsoever, including, without limitation: (a) the insolvency, bankruptcy, reorganization or cessation of existence of the Contractor; (b) the actual or purported rejection by a trustee in bankruptcy of the Agreement, or any limitation on any claim in bankruptcy resulting from the actual or purported termination of the Agreement; (c ) any waiver with respect to any of the Obligations of the Agreement guaranteed hereunder or the impairment or suspension of any of the Guaranteed Party’s rights or remedies against the Contractor; or (d) any merger or consolidation of the Contractor with any other corporation, or any sale, lease or transfer of any or all the assets of the Contractor. Without limiting the generality of the foregoing, Guarantor hereby waives the rights and benefits under California Civil Code Section 2810; 3 (j) any and all benefits and defenses under California Civil Code Sections 2846, 2849 and 2850 as may be amended from time to time, including without limitation, the right to require the Guaranteed Party to (a) proceed against the Contractor, (b) proceed against or exhaust any security or collateral the Guaranteed Party may hold now or hereafter hold, or (c) pursue any other right or remedy for Guarantor’s benefit, and agrees that the Guaranteed Party may proceed against Guarantor for the obligations guaranteed herein without taking any action against the Contractor or any other guarantor or pledgor and without proceeding against or exhausting any security or collateral the City may hold now or hereafter hold. The Guaranteed Party may unqualifiedly exercise in its sole discretion any or all rights and remedies available to it against the Contractor or any other guarantor or pledgor without impairing the Guaranteed Party’s rights and remedies in enforcing this Guarantee; (k) to the extent permitted by applicable law, any and all rights which the Guarantor may have or which at any time hereafter may be conferred upon it, by statute, regulation or otherwise, to avoid any of its Obligations under or to terminate, cancel, quit or surrender this Guarantee. Without limiting the generality of the foregoing, it is agreed that if any of the following events occurs, such occurrence shall not affect the liability of the Guarantor hereunder: (a) at any time or from time to time, without notice to Guarantor, performance hereunder or compliance herewith is waived; (b) any security for the Contractor’s obligations under the Agreement is released or exchanged in whole or in part or otherwise dealt with; or (c ) any assignment of the Agreement is effected which does not require the Guaranteed Party’s approval; and (1) diligence, presentment, demand for payment or performance, protest and all notices whatsoever, including, but not limited to, notices of non-payment or non-performance, notices of protest, notices of any breach or default, and notices of acceptance of this Guarantee. If all or any portion of the Obligations guaranteed hereunder are paid or performed, Guarantor’s Obligations hereunder shall continue and remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from the City as a preference, fraudulent transfer or otherwise, irrespective of (a) any notice of revocation given by Guarantor or the Contractor prior to such avoidance or recovery, and (b) payment in full of any Obligations then outstanding. 6. Maintenance of Comorate Existence. (a) Consolidation, Merger, Sale or Transfer. Guarantor covenants that during the term of this Guarantee it will maintain its corporate existence, will not dissolve or otherwise dispose of all or substantially all of its assets and will not consolidate with or merge into another entity or permit one or more other entities to consolidate with or merge into it unless the successor is Guarantor; provided, however, that Guarantor may consolidate with or merge into another entity, or permit one or more other entities to consolidate with or merge into it, or sell or otherwise transfer to another entity all or substantially all of its assets as an entirety and thereafter dissolve if the successor entity (if other than Guarantor) (x) assumes in writing all the Obligations of Guarantor hereunder and, if required by law, is duly qualified to do business in the State of California, and (y) delivers to the City an opinion of counsel to the effect that its Obligations under this Guarantee are legal, valid, binding and enforceable subject to applicable bankruptcy and similar insolvency or moratorium laws, and (z) the net worth of the successor 4 entity upon such consolidation, merger, sale or other transfer calculated in accordance with generally accepted accounting principles, is not less than the net worth of Guarantor immediately prior to such consolidation, merger, sale or other transfer. (b) Continuance of Obligations. If a consolidation, merger or sale or other transfer is made as permitted by Subsection (a), the provisions of Subsection (a) shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of Subsection (a). No such consolidation, merger or sale or other transfer shall have the effect of releasing the initial Guarantor from its liability hereunder unless a successor has assumed responsibility for this Guarantee as provided in Subsection (a). (c) Payment of Costs and Exuenses. Guarantor agrees to pay the Guaranteed Party on demand all reasonable costs and expenses, legal or otherwise (including counsel fees), to the extent incurred by or on behalf of the Guaranteed Party in successfully enforcing by a legal proceeding observance of the covenants, agreements and Obligations contained in this Guarantee against Guarantor, other than the costs and expenses that the Guaranteed Party incurs in performing any of its Obligations under the Agreement. (d) b. This Guarantee is not limited to any period of time, but shall continue in full force and effect until all of the terms and conditions of the Agreement have been fully performed or otherwise discharged and Guarantor shall remain fully responsible under this Guarantee without regard to the acceptance by the Guaranteed Party of any performance bond or other collateral to assure the performance of the Contractor’s Obligations under the Agreement. Guarantor shall not be released of its Obligations hereunder so long as there is any claim by the Guaranteed Party against PTS arising out of the Agreement based on PTS’s failure to perform which has not been settled or discharged. (e) No Waivers. No delay on the part of the Guaranteed Party in exercising any rights under this Guarantee or failure to exercise such rights shall operate as a waiver of such rights. No notice or demand on Guarantor shall be a waiver of any Obligation of Guarantor or right of the Guaranteed Party to take other or further action without notice or demand. No modification or waiver of any of the provisions of this Guarantee shall be effective unless it is in writing and signed by the Guaranteed Party and by Guarantor, nor shall any waiver be effective except in the specific instance or matter for which it is given. (0 Attorney’s Fees. In addition to the amounts guaranteed under this Guarantee, Guarantor agrees in the event of a breach of its Obligations to pay reasonable attorney’s fees and all other reasonable costs and expenses incurred by the Guaranteed Party in enforcing this Guarantee or in any action or proceeding arising out of or relating to this Guarantee, including any action instituted to determine the respective rights and obligations of the parties thereunder. 7. Miscellaneous. (a) Consent to Jurisdiction. Guarantor irrevocably: (1) agrees that any legal proceeding arising out of this Guarantee shall be brought in the state or federal courts in San 5 Diego County, California having appropriate jurisdiction; (2) consents to the jurisdiction of such court in any such legal proceeding; (3) waives any objection which it may have to the laying of the jurisdiction of any such legal proceeding in any of such courts; and (4) waives its right to a trial by jury in any legal proceeding in any of such courts. (b) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to the choice of law principles thereof; and any legal action, suit or proceeding arising out of or relating to this Guarantee shall be instituted exclusively in the state or federal courts of the State of California. (c) No Third Party Beneficiaries. Nothing in this Guarantee is intended, and it shall not be construed, to confer any rights or benefits upon any person other than the Guaranteed Party and no other third party shall have any rights or remedies hereunder. (d) Authority: Counterparts. Guarantor represents and warrants that it has the requisite corporate power and authority to enter into this Guarantee, that its execution of this Guarantee has been authorized by all necessary corporate action, and that the person signing this Guarantee on its behalf is authorized to do so. This Guarantee may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same binding agreement. (e) Severability. If any provision of this Guarantee is held to be illegal, invalid or unenforceable in whole or in part, the validity and enforceability of the remaining provisions, or portions thereof, will not be affected and will continue in full force and effect. (0 Notices. All notices and other communications to Guarantor hereunder shall be sufficiently given for all purposes hereunder if in writing and (i) delivered personally; (ii) sent by documented overnight delivery service; or (iii) sent by telecopier (with confirmation of receipt), in each case, to the following: Palomar Transfer Station, Inc. 8364 Clairemont Mesa Boulevard San Diego, CA 921 11 Attn: Mr. James Ambroso Fax: (858) 278-7528 and Allied Waste Industries, Inc. 15880 N. Greenway-Hayden Loop, Suite 100 Scottsdale, AZ 85260 Attn: Corporate Secretary Fax: (602) 423-9424 6 70012768~6 with a copy to: Eric A. Kremer, Esq. Pillsbury Winthrop LLP 101 W. Broadway, Suite 1800 San Diego, CA 92101 Fax: (619) 236-1995 or to such other address andor to the attention of such other person as Guarantor may designate by written notice to the Guaranteed Party. (8) Binding Effect: Assignment. This Guarantee shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that no party hereto may assign its rights or delegate its Obligations under this Guarantee without the express written consent of the other party hereto. (h) Headings. The headings contained in this Guarantee are inserted for convenience only and will not affect the meaning or interpretation of this Guarantee. (i) Amendment: No Waiver. This Guarantee may not be modified or amended except by an instrument in writing signed by the party against whom enforcement of any such modification or amendment is sought. Any party hereto may, only by an instrument in writing, waive compliance by the other party hereto with any term or provision of this Guarantee. The waiver by any party hereto of a breach of any term or provision of this Guarantee shall not be construed as a waiver of any subsequent breach. 6) No Modification of Ameement. Nothing herein shall in any event amend, or in any other respect modify, the rights and obligation of the Guaranteed Party, on the one hand, and PTS, on the other, under the Agreement or any other agreements executed between the parties hereto. 7 IN WITNESS WHEREOF, Guarantor has executed this Guarantee as of the date first above written. ALLIED WASTE NORTH AMERICA, INC., a Delaware corporation Name: Its: CITY OF CARLSBAD, a municipal corporation of the State of California CLAUDE A. “BUD” LEWIS, Mayor ATTEST: LORRAINE WOOD, City Clerk APPROVED AS TO FORM: RONALD R. BALL, City Attorney ., (Proper notarial acknowledgment of execution by Guarantor must be attached.) (Chairman, president or vice-president and secretary, assistant secretary CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer(s) signing to bind the corporation.) 8 IN WITNESS WHEREOF, Guarantor has executed this Guarantee as of the date first above written. ALLIED WASTE NORTH AMERICA, INC., a Delaware corporation Name: Its: ATTEST: h&RAb&!"OO~City Clerk 0 APPROVED AS TO FORM: n LJ"a(2L RONALD R. BALL, City Attorney (Proper notarial acknowledgment of execution by Guarantor must be attached.) (Chairman, president or vice-president and secretary, assistant secretary CFO or assistant treasurer must sign for corporations. Othenvise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that offcer(s) signing to bind the corporation.) 8 STATE OF ARIZONA 1 COUNTY OF MARICOPA ) ) ss. I, Susanne A. Webb, a Notary Public in and for said County in said State, hereby certify that Thomas P. Martin, whose name as Treasurer of Allied Waste North America, Inc., a corporation, is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of said instrument, that he, as such officer and with full authority, executed the same voluntarily for and as the act of said corporation. ZY Given under my hand and seal, thisdL day of May, 2002. (SEAL) A". SUSANNEA. CEB STATE OF CALIFORNIA ) j SS. COUNTY 0 1 n On 20abefore me, a Notary Public in and for the State of California, personally appeared CL&’DE $. Wb L#i 5 , personally known to me -e) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he&uxh%xecuted the same in his & authorized capacity and that, by his eFker signature on the instrument, the person or the entity upon behalf of which he acted, executed the instrument. (Notarial Seal) STATE OF CALIFORNIA ) COUNTY OF ) ss. ) On ,200, before me, a Notary Public in and for the State of California, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he or she executed the same in his or her authorized capacity and that, by his or her signature on the instrument, the person or the entity upon behalf of which he or she acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State (Notarial Seal) 1 EXHIBIT E 2 3 No. 1. 2. 3. 4. 5. CAPITAL IMPROVEMENT PROJECTS AND COMPLETION SCHEDULE FOR PALOMAR TRANSFER STATION Project costs of Project Name Estimated Description Exterior Improvements $324,000. Repair Wall at eastern end of facility Correction of structural $50,000. Paint exteriors of facility problem Facility Entry Roadways $400,000. Shed Roof $288,000. Construct 8,000 square foot shed roof at eastern end of facility. Top Loading Addition $138,000. Load Out Chute s Estimated Total Costs: $1.2 Million s Completion date for all projects listed is expected to be 24 months after all permits and necessary approvals are received. 7W17373V1 1 1 7 8 9 10 11 12 13 SCHEDULE 2.04 CTS DEVELOPMENT MILESTONES Milestone 1: City delivery of notice as described in, and in accordance with, the provisions of Section 2.04.A. Milestone 2: The City Council's, or other entity responsible therefor, selection of a CTS site and entry into a purchase agreement or option agreement for acquisition thereof, and the award of the bid for design of the CTS, the foregoing to have occurred not later than the tenth (10") anniversary of the Effective Date. Milestone 3: The City Council, or other entity responsible therefor, to have awarded the bid for construction of the CTS not later than the eleventh (1 lth) anniversary of the Effective Date. 1 SCHEDULE 14.04 FORM OF UCC FINANCING STATEMENT 1 70017373v1 UCC FINANCING STATEMENT LLOW INSTRUCTIONS (hoM and bd) CAREFULLY ,. NAME 6 WONE OF CONTACT AT FILER (OpuOMIl E 1 PILLSBURY WINTHROP LLP 11682 El Camino Real, Suite 200 L San Diego, CA 92130 J I I THE ABOVE SPACE IS FOR UUW OFFICE USE OWLV 1. DEBTOR'SEX/\CTFULLLEGMN~E-iraanmly~~rum.(Ina~b)-O~sMls~laor~Mn*. la. ORGANIZATION'S NAME PALOMAR TRANSFER STATION, INC. OR SUFFIX MIDDLE WE FIRST ME Ib. INDNIDUMS LAST NAME 15. MAILING MDRESS 15880 N. Greenway-Hayden Loop, Suite 100 Scottsdale USA 85260 Ai! CITY WSTM CODE STATE COUNTRY ld. TAX l.O* SSN OR EIN w ,wow 10. ORGANIUTIONM I.D.#. nw 11. JURISDICTION OF ORGANIZATION le. TYPE OF ORGAN-TION noN Corporation 0 NONE 2. ADDlTlONALDEBTOR'SEXACTFULLLEGALNAME-inaamr,~~alumI2~amI-W~~~U~~~~ 2% ORGANIZATIONS ME OR SUFFIX MIDDLE NAME FIRST ME 2b. INDIVIDUAL'S LAST NAME 2s. MAILING WDRESS WSTM CODE STATE CITY COUNTRY 26. TAX 1.01: SSN OR EIN 20. ORGANUATIONU I.D.U. n any a JURISDICTION OF ORGANIZATION ze. TYPE OF ORGANIZATION 0 NONE 3. SECUREDPARNSNAME(aNAMEdTOTM*SSIGIIEEof*SSIGIK)OYP)~h~~0.Ku~~~m.(3~a3QI ITY OF CARLSBAD 3b. INDNIDUIL'S UST NAME MIDDLE NAME FIRST NAME rm SUFFIX I I 3c. WAILING MDRESS CITY 1200 Carlsbad Village Drive STATE WSTU CWE Carlsbad COUNTRY CA 92008 SA 1. Thb FINANCING STATEMENT - Ihs WMg SOHBl~l: 5. ALTERNATIVE DESIGNATION PapO*.bUI: u LESSEEJLESSOR CONSIGNEEICONSIGNOR BAlLEEf0AlLOR u SELLEWWER AG. LIEN u NOKUCC P 8. OPTIONAL FILER REFERENCE DATA FILING OFFICE COPY - NATIONAL UCC FINANCING STATEMENT (FORM UCCI) (REV. 07129198) 70017007v1 11682 EL CAMINO REAL SUITE 200 SAN DIEGO, CA y2130-2593 619.234.5000 F: 858.5og.ralu June 3,2002 Phone: 858.509.4058 Carmela D. Nicholas cnicholas@pillsburywinthrop.com VIA OVERNITE EXPRESS Ronald Ball, Esq. City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Re: Palomar Transfer Station, Carlsbad, CA Our File No.: 014279-0000012 Dear Ron: With reference to that certain Agreement for Transfer Station and Disposal Services dated as of June 1,2002 by and between the City of Carlsbad (the “City”) and Palomar Transfer Station, Inc. (“PTS”), enclosed for the records of the City is an original executed Certificate of the Secretary of PTS dated May 23,2002 which certifies as to the accuracy of the resolutions adopted by the Board of Directors of PTS attached thereto as Schedule A. Thank you for your continued courtesy and cooperation. Please give me a call if you have any questions. b Enclosures cc: Mr. Frank Mannen (w/o encl.) Mr. Dick “Bud” F. Chase, Jr. (w/o encl.) Jo Lynn White, Esq. (w/o encl.) Ms. Cathy Childress (w/o encl.) Mr. James Ambroso (w/o encl.) Eric A. Kremer, Esq. (w/encl.) 70019769~1 CERTIFICATE The undersigned certifies that she is the duly elected, qualified and acting Secretary of PALOMAR TRANSFER STATION, INC., a California corporation (the "Corporation") and that attached hereto as Schedule A is a true and correct copy of resolutions duly adopted by the Board of Directors of the Corporation, and that such resolutions have not been amended or rescinded and are in full force and effect on the date hereof. Dated: May 23, 2002. SCHEDULE A UNANIMOUS WRITTEN CONSENT TO ACTION OF BOARD OF DIRECTORS OF THE CORPORATION UNANIMOUS WRITTEN CONSENT TO ACTION OF BOARD OF DIRECTORS OF PALOMAR TRANSFER STATION, INC. TAKEN WITHOUT A MEE’MNG Pursuant to Section 307(b) of the California Corporations Code and the Bylaws of Palomar Transfer Station> hc., a California corporation (the “Company”), the undersigned, constituting all ofthe members ofthc Board of Directors of the Company (the “Board”), hereby adopr rhe following recitals and resolutions: V Station. Carlsbad, California WHEREAS, the Board believes it is in the bcst intcrests of thc ‘Transaction’‘) whereby rhe Company would (i) assign to the City of Compmy to cntcr into ccrtain transmtiom (collectively, rhe Carlsbad, Califomia (“City”) all rights, title and interests of the Company in a certain lease with the County of San Diego, California, whereby the Company will lease a iraxasfer station commonly known ss the Palomar Transfer Station, located in Carlsbad, California, and (ii) sublease said transfcr station hm thc City and operarc: same pursuant to a separate agreement between the Company and the City; WHEREAS, the Board has reviewed proposed drafts of, or otherwise been provided with detailed information with respect to, the following documents to be entered into or delivered as part of the Transaction (all such documents, together with the Transfer Station Agreement, being collecuvely referred to herein as the “Tramaction D0CUmfXlts”): (i) Agreement for Transfer Station and Disposal Services betwean the Company and the City: (ii) Sublease Agreement by and between the Company and the City; (iii) Assignment of Lease by between the Company and the Ciry; and (iv) Assignment of Lease - County Contract with Palomar Transfer Station, APN No. 97-0085, by and between the Company and the City with Consent to Assignment executed by the County. 7001937ov2 Received Jun-03-01 01 :55m From- To-PILLSBURV CARKL VLV Pam 02 UOIUJILUUL IJ:OI tM NOW, THEREFORE, BE IT RESOLVED, that the Transaction and the Transaction Documents, in the forms presented to the Board. are cach hereby approved, ad James Ambroso, Vice President of the Company, and Dick F. "Bud" Chase, Jr., Business Development Manager of Allied Waste Industries, hc., an affiliate of the Company, are authorized and instructed. for and in tbe name of the Company, to execute and deliver the Transaction Documents in substantially the forms that were presented to the Board, with such changes in such Transacrion Documcnts as the person mecudng rhe same shall approve, such approval TO be conclusively evidenced by the execution and delivery thereof. Omnibus RESOLVED, that the officers of the Company are, and each acting alone is, hereby authorized, empowered and direoted, for and on bchalf of the Company, to take or cause to be taken any and all actions, including, without limitation, the execmion, acknowledgment, filing, amendment and delivery of any and all papers, agreements, documents, instruments and certificates, and the payment of such sums, as such officers may deem necessary or advisable to carry our and perform the obligations of the Company under the foregoing resolutions and to consummote the transsctions contemplated theroin and otherwise carry out the purposes ad intent of the foregoing resoluuons; and the performance of any such acm and the execution, acknowledgment, filing and delivery by such officers of any such papers, agreements, documents, instruments and certificates shall conclusively evidence their authoriw therefor. This Unanimous Written Consent to Action may be executed in counterparts and shall bc effective for all purposes as ofMay 24,2001. Director Thomas P. Martin, Director 70019370~2 Rrcrivrd Jun-03-02 01 :55m F rum- 2 Tu-PILLSBURY CARKL VLY Parr 03 ALLIED WASTE Southern California Districi PALOMAR TRANSFER STATION CARLSBAD, CALIFORNIA Trans fer Station OPERATIONS MANUAL 8364 Clairemont Mesa Blvd. /Son Diego. CA 921 11 1858-637-5610 1858-278-7528 FAX Facility Rules Each Facility Manager shall prepare a list of policies and site specific information for distribution to its customers. Each facility shall post policies and site specific information at the scale office or customer service office and make copies available for anyone who uses the facility. Review the sample facility information sheet on the next page and make site-specific changes applicable to your facility (i.e., #l. Operating Hours, #19. EPA). Rules marked with a star (*) on the sample facility information sheet are mandatory. F I Dear Customer: As a valued customer of our facility, your safety is of the utmost concern to all of us. To provide the safest environment possible, our facility will adhere to some basic operational guidelines and safety precautions. Attached is a copy of our Facility Rules. Review them carefully and be prepared to follow them when using our facility. These rules are effective immediately. If you have any questions, please contact us at [Phone Number] and we will be happy to answer them. Your cooperation in this matter is greatly appreciated. Sincerely, SAMPLE - FACIlITY 1ETTERHEAb Facility Manager These rules are designed to improve facility safety and operating efficiency. The rules are to be followed and enforced by management. The District Manager or Facility Manager is responsible for ensuring that all facility employees read and understand these policies and take an active role in educating those who are on the site and enforcing the rules if they are not followed. Employees must adhere to posted policies to set an example and to maintain credibility with customers. When you prepare and implement your Facility Rules for the kst time, a cover letter and copy of the Facility Rules must be sent to all account customers. 1 SAMPLE OF FACILITY/SITE RULES: This is an example. Use it to develop site specific rules for each facility. A11 items marked with an asterisk (*) are mandatory and must be included. SAMPLE FAClLlTYBlTE NAME - Site Phone No: (555) 555-5555 Allpersons entering this lacif@, including employees. cY6lomerB. and visitors, must folloo* mese rvles. These rules have been implemented IoryOurSafelyand the safely OfOlhers. 6:30 am - 5:OO pm Monday - Friday 1 Last Truck 4:45 pm 6:30 am - 1200 pm Saturday / Last Truck 11:45 am OPERATING HOURS + I.' Gates va not be opened until 630 a.m. No one except Iaclliy penonoelvill be allowed In he gate until6:SO am 2. Do notpark on roads in frontof or around he facility. Anyone parked On me road viU lose faclliv priulieges. 3. Trucks aniving firs1 thing in lhe morning must bave.1 at leas1 huo truck lengths wan "+ 4.' Do notexceed me posted speed limits. Only one warning will be given la speed limit vbIa10rs. 5. Upon rnny into the laclsly. proceed up he scale ramp. Pull onto me scale, go into the scalehours and tell me scale personnel your name. mck number. and compmy. If your empty truck weight lo On file. you will receive your load 1cht It il h not on lik. yw (ou~t~eigh back in suer dumping your load in wdec 10 wehe your eket. Alter checking orweighing in. proceed as directed by facility personnel. + 6.' Only one person per vehicle is allowed in the active dumping area. Any penon leaving a vehule musfwear e hardhat and hard-soled shoes. 7. Onvindydsyrr~llbackyourtaipaneryougetlometippingfacaareabeloreyoubackin. D0natrollback Iarps on the rcak or on he scale mad. (Descrbe your facXilyb procedures) -+ 6: Personal ~mtecris Equipment: Haldhsto must be worn at all times on tacifiv pqerty. Regular customets Should bring their own hardhalr. A feu loaner hats wiil be kept et the scale oniir. Any person leaving their vehicle nust rearhard-soled shoes. No tennk shoes. opcn4oad shoes. sandals. or bare IeetvUl be &wed. "3 9.' AUdrIvers mustiatch roil-ofl doors OPEN belore beginning dumping procedures. 10. All opewtop uucks and open-top uaikm must be sweptoul atlhe lipping area belare leaving me facility. "+ 11.' Come lo a COMPLETE STOP before exiring me facllily. resultin s~~pensl~n olfaciliyprivitegea. 12. All brdr must be mrped. Driven vim bad larps will be given One warning only. Unacceptable terps may j 13.' Facili personnel wlliperiodicaliy inspect he COnlenU oluuck~ and trailers. All driven ale expected 10 cooperate with the sile Inspector IO as not to delay OpevaIons in me work area. Any part 01 a toad that is rejected will be reloaded into he vehicle hatbrought itin and hansporled off fecniy propeny. + 14; No Specialor Regulated Waster. including but not lhnnedto: car bauerier.lquidr,ordrummed wastes olany kind (sleet 01 libor) are allowed. These raster YS be lebaded into the Yehxle thatb~oughtthem and banspone6 Qlf the laciliiy. + 15.' Customer is rerponsble lor his equipment while on sne. Company assumes no responsibuy lor damage 10 Customerr'epuipment while using the faciliv. + 16.' AInoIime*lIUscavenging be pennilled. 4 17.' Smoking is not permnted. exceptin me designated smoking area 2 Facility Sign Requirements Entrance Signs At a minimum the following items must appear at the entrance of each Company facility: 1. Permit number; if applicable. 2. Hours of operation. 3. Name, address, phone number, and emergency phone number of the company operating the transfer station or MRF. 4. Text reading: Disposal of Hazardous Waste Prohibited. 5. Text reading: Scavenging Prohibited. 6. An emergency number should be available to allow for appropriate communication when the facility is closed. A 24-hour, live answering service is one option. The service should be provided with a list of contacts in the event of possible fire, accident, trespassing, vandalism, unauthorized dumping, or general information requests. Geographic areas with a significant Spanish-speaking customer base should post signs in English and Spanish. It will be required in these areas: San Diego, Texas, Arizona, Chicago, Boston, and Detroit. All others should be reviewed and implemented as needed. Additional Signs The following or similar signs must appear at the appropriate locations within the faciiy: 1. Speed limit (not greater than 15 mph) should be posted at least twice going in and out of e- the facility. 2. Text reading: Hardhat Required. 3. Text reading: Eye Protection Required. 4. Stop sign (at exit). 5. Direction signs to the disposal area. 6. Visitor parking. 7. As part of the security of the site, all-weather "no trespassing" signs should be posted at a minjmum of every 150 feet to 200 feet around the entire perimeter of the facility. Remember: check local and state regulations for additional signage requirements. .- 3 Facility Aesthetics Landscaping It is the desire of the Company to have all of their facilities designed, constructed and operated with a landscaping program that, to the fullest extent possible, enables each facility to project a professional and appealing appearance to the general public. Due to the varying size and nature of individual facilities, the type of landscaping that can be effectively instituted will be the responsibility of District management. Special emphasis should be.given to the public entrance of each facility to portray a professional image. It is the responsibility of facility management, regardless of District management's decision on landscaping, to ensure that every facility is maintained in a clean and orderly manner. In general, it is highly recommended that each facility use fencing, berms and/or vegetation to screen all areas of operation ffom public view. Odor and Dust Control Facility management is responsible for managing dust and odor to prevent them from becoming a health risk, safety risk or nuisance to customrs, employees or the general public. Depending on the size and type of facility involved, the procedures to accomplish this will vary. The following is a list of applications that can be used at facilities. If the following examples are not applicable in your situation, contact your District Manager or your Regional Engineer for guidance and assistance. a) Transfer Station or MRF Dust Control Dust typically becomes a concern when there is extended dry weather. This, combined with any type of wind, will cause dust to become airborne and become a nuisance as well as'reduce visibility and possibly create a health hazard. The most common method of dust control is to spray water on the affected areas. The amount of water and the type of vehicle ded to do this will depend on your facility's size and the facility's equipment traffic pattern. For small applications, a small agricultural tank can be mounted on the back of a site pickup or other type of truck and gravity sprayed through a spreader bar. The use of tanks mounted on agricultural trailers and pulled by farm or industrial tractors with gravity fed spreader bars is also acceptable. If gravity spreading is not providing adequate distribution, a small two or three inch pump can be mounted between the control valve of the tank and the spreader bar to provide pressure to better distniute the water. For larger facilities, tank mounted straight trucks or water wagon scraper-type vehicles may need to be employed. Before beginning any water distribution, check with your Regional or consulting engineer for any regulatory or permit requirements that may exist. Facilities accepting Construction and Demolition debris should consider using a permanently mounted spray system to wet C&D material when on the tipping floor to control dust. .. -. 'L 4 b) Street Sweeper, Mechanical or Manual Brooms - Facility management may contract with a service or acquire a mechanical broom that can be mounted in kont of or behind a tractor or street sweeper to clean access and exit roads in and around the facility. This equipment should have a triangular “SLOW MOVING VEHICLE emblem on the rear of the vehicle as well as an amber strobe light mounted on top of the vehicle. If, due to size, mechanical broom andlor street sweepers are not feasible, facility management will be required to use facility personnel or temporary service workers to use hand brooms and hand scrapers to clean the respective access or exit roads. Facility management must ensure that cleaning personnel wear florescent reflective vests while performing this task. Portable ‘“EN WORKLNGKAUTION’’ signs are also encouraged to be positioned one-quarter mile in each direction on the stretch of road that is being worked on. Any signs should meet local state requirements and should be sandbagged at the base to prevent them from being blown over by passing vehicles. c) Transfer Station and MRF Odor Control The proper staging and a “first-idfirst-out” procedure of material handling should greatly .minimize odor at transfer stations and MRF facilities. Facility management will be responsible to ensure that recyclables or refuse are staged and processed in order to eliminate the possibility of refuse or recyclables sitting on the tipping floors or the processing areas for extended periods of time. Facility management should use all efforts to clear the facility of recyclables or refuse that have been in the facility the longest. Some site permits require daily or regular clearing of refuse. It is recommended, if feasible, to clear and wash down tipping floors a minimum of weekly. This will sigdicantly reduce odor problems. Waste may also build up behind push walls and should be addressed in regular housekeeping procedures. Consult with your Regional Engineer and District Safety Coordinator for the commercial odor control system best suited or required by permit for your facility. c d) Litter Control and High Wind Operations Company policy requires that facility management make every effort to clean the entire site, access and entrance roads as well as the geographic area around the site, of any windblown litter by sundown of each operating day. If this is not possible, litter pickup should begin immediately the following day and continue until the geographic area and the facility have been completely cleared of litter. Always make sure plastic bags that are filled with litter are picked up and properly disposed of at the end of the day. Do not allow bags of litter to sit on or around the facility overnight. Facility management may contract with a temporary service company to provide litter pickers if additional workers are ever needed to address a high wind situation. When selecting a temporary service company, review their entire contract but pay particular attention to insurance coverage for the temporary personnel. Make sure any personnel provided are covered under the temporary service company’s policy. AU temporary personnel must be hired through a temporary service agency. L 5 Temporary service workers should be managed and directed by facility personnel. Always keep temporary service workers far away from the active tipping floor and high traffic areas. Never let -3 - temporary workers operate Company equipment (even pickup trucks). Work the temporary service workers in one section of the facility at a time. When that section has been adequately cleaned, move them to a second section. Do not disburse temporary service workers across the facility on their own. Remember: We should always be looking for better ways to control these problems and communicate to each other the newest and most innovative measures of control. Customers and Visitors Site Access It is mandatory that facility management use locked gates, fences, berms or ditches to prevent access to the facility during non-operating hours. Under no circumstances should non-facility personnel be allowed on the facility during non-operating hours unless Company personnel accompany them. prior to opening or after closing, gates should be locked. It is also strongly suggested that only one entrance and exit be used by the facility. Under no circumstances should non-Company personnel be issued keys to an operating facility. Under no circumstances should customers be allowed to access the site prior to or after normal operating hours unless it is an emergency situation. Emergency situations will be the determination of District management. If emergency situations become frequent, District management and the Director of Compliance will determine procedures and policies. As part of the security of the site, all-weather “no trespassing” signs must be posted at a minimum of every 150 feet to 200 feet around the entire perimeter of the facihty. - Visitor Registration All non-customers must sign in and out on a visitor’s register. These registers are available at most office supply or stationery stores and should be in a bound book form Loose-leaf visitor sheets are not permitted. The visitor register should be kept at the entrance of the facility (Le. scale or ticket house). At a minimum, each visitor should provide the following information: The date. The person’s name. The company or agency the person is representing. The reason for the person’s visit. The time the person arrives and leaves (i.e. the person must sign in and sign out). -. 6 It is strongly suggested that non-company personnel and non-customers not be allowed on the facility unless accompanied by a Company representative. r Facility Tours Any time a transfer station or materials recycling facility conduct tours, certain releases must be signed. For school age children, a Visitor Access Agreement must be signed by each child's parent or guardian and fled with site management. In addition, a representative of the school or group must complete and sign a corresponding agreement. Non-company owned vehicles are not allowed beyond the designated parking area without a Certiiicate of Insurance showing the site as an Additional Insured. All paperwork needs to be received before any group goes on company property. It is recommended that management allow two weeks lead time prior to any planned tour to complete this process. Following are samples of Visitor Access Agreements. FACILW NAME V1sit-x Awes Agreement (to be execulfd 4, parent m-legd gumdmn) FAClLllY NAME WsitorAceenAgreement Po be executed by kgal wmsentstbe of shml m- civic gmw) Community Drop Off Areas a) Community Bin Areas Community drop-off areas may be utilized to accommodate the general public. The drop-off bins should be located away from the main traffic flow, be well maintained, and clearly marked and defined. Where feasible the Company prefers a Citizens' Disposal Area constructed near the scale house or gatehouse to allow monitoring of customers. Under all designs and permits, Company policy requires daily maintenance of these areas. AU refuse must be dumped out prior to closing at night or the box tarped prior to closing. Tipping areas around citizen drop off areas must be maintained.'Litter should be removed, at a minimum, by the close of each operating day. " '% b) Alternate Citizens' Tipping Face Area If the facikty does not have a separate community bin area, citiins' access to the tipping floor may be controlled by use of a designated tipping area for non-commercial vehicles. Cones or markers should be utilized to cleady identify the area. Fiieen to twenty feet should be allowed between commercial and citizen unloading areas. See diagram below. COMMERCIAL TIPPING AREA AA AA A A A A AREA A CITIZENS' TIPPING c) ' Access to Tipping Floor It is mandatory that facility management limit personnel on the tipping floor. Under no circumstances should any person or vehicle be allowed on or at the tipping floor unless Company personnel are present. Never leave the tipping face unmanned by Company personnel during operating hours. Only the driver of the vehicle and an authorized helper (an authorized helper is a person who accompanies the driver for the specific purpose of unloading the vehicle and is wearing all required personal protective equipment) are allowed on the tipping floor or past the scale house or ticket office. No on under the age of eighteen will be allowed out of the vehicle. Passengers in customer vehicles mst remain in the vehicle while loads are being discharged. The only 8 exception to this rule is a passenger accompanying the driver for training purposes. If this is the must inform Company tipping face personnel of the presence of an authorized passenger prior to arrival at the tipping face. Vehicle Fires and Hot Loads Truck fires related to solid waste collection and disposal are not uncommon. Drivers and designated facility employees must be prepared and trained to respond appropriately to a hot load situation. A site-specific plan including emergency procedures, designated hot load area, and notification protocols must be prepared for all locations. Vehicle fires must be reported in writing to the Regional WSafety Manager and Director of Safety and Loss Control. In the event a fire is detected in an incoming vehicle, all effort must be made to safeguard human life, protect company property, and contain the fire in an area away from access roads and the working face. A vehicle containing a hot load should be directed to a predetermined location to dump its load. If it can be done without risk of personal injury, the battery disconnect switch should be turned to the off position. Dirt can be used to build a berm around the load to prevent the fire from spreading. If the fire is small enough, it may be possible to put it out with a fire extinguisher or by shoveling dirt on the source. A water truck can also be used to put out small fires, if there is no danger to anyone involved. If you intend to use a water truck for fire-fighting purposes it must be emergency fire procedures should attempt to extinguish a fire. If there is any doubt a fire can be controlled safely, the fire department must be called to handle the situation. Public Relations and Inquiries Facility management should limit the number of employees who deal with the public on a daily basis, including such tasks as answering the phone. Personnel who are permitted to deal with the public on a daily basis should limit their response to any type of inquiry. As a general rule, unless specifically trained to deal with an issue, personnel should be permitted to give only the following information to the general public in person, in writing or over the telephone or facsimile: ,- case, the customer must give two days prior notice to the Company. In addition, the customer - equipped with properly mounted hoses designed for that purpose. Only employees trained in The operating hours of the facility. The gate rate of the facility. Due to the factors in industry competition as well as an industry opposition, any other information requests should be directed to the facility management. Facility management can then determine the proper response to the request. Facility management shall be the only personnel authorized to provide site-specific or Company information to the public or other company personnel. - Under no circumstances should facility management respond to any request for information on Allied Waste Industries, Inc. without first consulting the Regional Vice President or the Legal 9 Department at the corporate office. Under no circumstances should facility managemnt respond to any regulatory agency or the media, either verbally or in writing, without first consulting the ’ “ta Director of Compliance and Landfill Developmnt. Use of Corporate Name Under no circumstances is a subsidmy permitted to use the Corporate name (Allied Waste Industries, Inc.) on its equipment, letterhead or any other type of advertising. If a subsidiary wishes to use the corporate name for identification purposes, it should use the following example: “Duckett’s Disposal, Inc., an Allied Waste Company.” Call Corporate Communications in Scottsdale regarding the proper procedures for use of logos. Third party vendors or brokers (such as truckers for hired transportation) are not permitted to use the Corporate name or the subsidmy name on their equipment or vehicles. Third party truck brokers should not even have “leased to . . .” or “contracted to ...” on their equipment or vehicles. External Consultants and Construction Before contacting an outside consultant to prepare documents for the Company, a proposed scope of service must be defined. Consultants must provide proposals, including a detailed scope of work and cost estimate(s). Draft documents prepared by the consultant must he provided to the Regional Engineer or Environmental Manager for review and approval. The staff engineers will be actively involved with all phases of the permit applications. In most cases they will be providing direction as to how the outside consultants are to proceed in the best interest of the company. If problem are encountered during the facility construction that may affect the integrity of the facility, the Regional Engineer or Environmental Manager and the Director of Engineering must be notilied. Notification must be made within 24 hours after the problem is discovered or incurred. In all cases, the Director of Compliance and Landfill Development or the Director of Engineeriug must be contacted prior to any notification to a regulatory agency, unless the District Manager has determined it is an emergency situation. Site Recordkeeping Site recordkeeping must be maintained as required by any zoning or operating permits. Recordkeeping requirements may include: - - Daily Waste Records Regulatory Inspections DOTIOSHA Training Documntation Pest Control Records Monitoring or Other Analytical Data National Pollutant Discharge Elimination Permits (NPDES) Stormwater Pollution Prevention Plan (SWPPP) Spill Prevention Control and Countermeasures Plan (SPCC) Any Appropriate Permits or Licenses IO Daily Equipment Reports Daily Log It is mandatory that every facility keeps a daily log on site. This log can be a simple dated journal, available at any stationery or office supply store, where at a minimum the following information should be kept: r Hours of operation for the operating day. Weather for the operating day. (Le. temperature, wind speed, precipitation, sun up, sun down, etc.) Number of tons or yards received for disposal or processing for the operating day. Any citizen or customer complaints, comments or compliments which were received by the facility for the operating day. Who made them, what time they cam in, the nature of the complaints, comment or compliment and the facility's response to the complaint, comment or compliment. Any unusual circumstances that took place that day. (Le. accidents, incidents, occurrences in construction, production or operation of the facility.) - This log should be filled out every day and kept on file at the facility for the life of the facility. Upon closure of any facility, all daily logs should be forwarded to the District office. This log and documentation, although very simple, is very important for several different operational and liability reasons. This log should be kept confidential, secure and only viewed and prepared by Company management. Entries should include concise, factual data only, and avoid any personal opinions or evaluations. Daily Inspections The manager or designated person must inspect the property each morning using the Daily Checklist found at the end of this section to document site conditions. The inspector will initial, date and time each report. This log must be kept at the landfill for its entire operating life. Items to be inspected are discussed below. a) AST's Inspected AU above ground tanks must be visually inspected for signs of spills, leaks, and corrosion. Any deficiencies must be addressed and corrected immediately to prevent employee exposure or environmental impact. Standing water inside of the containment structure should be inspected for an oily sheen, indicating fuel or oil contamination. The oil must be removed before the water is removed from the containment. Ensure that the drain valve, if so equipped, is in the closed position. ,"- 11 b) Litter Picked Up Wind scattered litter must be picked up from facility grounds and from all neighboring property as soon as possible. Major cleanups due to high winds will require additional paper pickers (temporary work service) to collect wind blown litter. Cleanup must begin the day the problem begins. c) Safety The safety of our customers and employees is of utmost importance. In our materials recycling facilities the daily work environment includes equipment such as scales, balers, compactors, and conveyors, machinery such as pallet jacks and forklifts, and of course regular traffic from recycling trucks, rolloffs, and in some locations non-commercial customer’s pickup trucks and personal vehicles. It is important that we protect them from potential hazards inherent to the MRF environment. One of the easiest ways to assist our customers and employees is with our directions to them. Signs are useful tools for directing and protecting our customers. A clear flow of traffic must be established. Signs should indicate directions of travel. The entrance and exit must be clearly marked. Speed limit signs (5 mph) should be posted. If the public must actually drive into the facility entrance, exit and direction of travel must be very clear. If the customer must walk inside of the facility, signs can be used to direct them. Consider using painted yellow lines on the floor or roped/chained off areas. Customers must be kept clear of moving equipment, pits, stacked material, conveyor belts, and balers. Areas you should pay particular attention to are: Housekeeping - - Make sure all aisles are clean and free of debris. - Ensure waste is removed from behind push walls. - Store material properly and in an orderly fashion. - Ensure washrooms are well stocked and clean. - Pedestrian traffic areas (when applicable) must be well-defined and free of debris. - Keep the floor clean to prevent slips, trips, and falls. .. - Mumnun width for aisleways must be 36 inches. , - Dispose of waste properly. Fire Prevention - Fire extinguishers must be accessible and well marked. - Au exits must be marked. - Smoking restrictions should be posted and enforced. - Evacuation routes should be posted. - Ensure the building or facility meets all federal, state, and local buil : regulations. Material Handling Equipment (forklifts, etc.) 12 - Daily vehicle inspections should be performed. - Seatbelts must be worn. - Must have properly working backup alm. - Must have properly working brakes. - Must have properly working horn. - Should be parked when not in use with forks at the down position. - Operators must be trained and certified to operate a forklift, bobcat, skid loader, etc. .- Balers, Grinders, and Conveyor Belts - Pre-operation equipment checks should be prepared daily. - Must have all protective guards in place and working properly. - Must have a written lockouthagout plan on site. Lockout/tagout procedures must always be used when performing tasks such as clearing jammed equipment, maintenance or other operations requiring temporary removal of guards or safety devices, and during maintenance or equipment adjustnent. - Balers, conveyors, and other equipment common to IvlRFs have moving parts that could cause injury, Do not climb on, in. over, stand under, or allow non-authorized employees or customers around any operating piece of equipment at your facility. - Clearly mark where it is safe to walk. Personal Protective Equipment - Eye protection is required in all MRFs. - Hearing protection may be required if the equipment or machinery noise exceeds OSHA - Hardhats are necessary if there are elevated working levels that people can walk or work - Gloves are required for any sorting, picking, or other type of manual materials handling. - Dust masks are usually optional, but should be offered all employees in areas where - Warning signs should be posted at all entrances to the working floor designating it as a - permissible limits for exposure. beneath. airborne particulate may be present. hearing protection, eye protection, foot protection and hardhat zone. Ergonomics - Work processes should be developed and ergonomically correct procedures should be implemented for all job tasks requiring lifting, sorting, bending, stretching, etc. Yard and Parking Areas - Roads and parkjng areas should be free of holes and broken pavement. - Parking and no parking areas must be well defined and posted. - Speed limit signs must be clearly posted. shipping Bales should be square and solid. They should be able to be moved with a forklift without falling apart. There should be the correct number of ties on each bale, and should all be of - uniform size. 13 Bales should meet proper density standards for the materials being baled. If the bales are not heavy enough or fall apart easily, it will be difficult to get enough weight in a shipping trailer or rail car, and the mill (who normally pays the freight) will charge you a penalty for light loading or difficult handling. Chock trailer wheels before loading or unloading. Secure and anchor dock plates. Drive in and-out of trailers slowly. If you ship in Gaylord boxes, the boxes should be clean, solid, iilled to the correct level and closed with an undamaged lid or top. They should be banded and sealed as appropriate. Each bale and box should be clearly marked with a local shipping label. It should indicate the net material weight, the date the bale or box was made, and what the commodity is. Bales should use wire tie labels, and boxes should have glue-on labels. “79 “. Equipment Daily Report Before starting any piece of equipment, Company personnel must perfom a routine inspection and start a Daily Report for that particular machine. (See Forms Section) Any unusual noises, changes in the way the equipment performs (i.e., hard to turn, brake clutches have to be pushed farther than previously, hydraulics slow), fluid leaks, or fueYoil added must be noted on the report. At the end of the day, the ending hours on the hour meter and the finish time (real time), fuels or oils added, and the operator’s signature must be noted on the report. The site mechanic or facility manager should review the reports for completeness and any repairs needed for the machine. A maintenance record must be kept for each piece of equipment, including all rental machines. Daily reports and records must be maintained for all Balers, Compactors, Loaders, Sweepers, Tractors, Water Pumps, Generators, Forklifts, and Watering Trucks. Equipment Operators Evaluation The Facility Manager will periodically (at least annually) evaluate each equipment operator’s performance in the areas of he-inspection, Operation, Speeds, General Work Habits, and Post Use Inspection. ,, & The evaluations are designed to increase the manager’s awareness of his employees’ skills, areas in need of development, and evaluation for training on other equipment. The majority of this evaluation is an observation of the employee’s performance and should be completed by the site manager without the employee being aware of the evaluation. Mer slling out the form as completely as possible, inform the operator you are conducting an evaluation, and have the A operator perform the required procedures to demonstrate their knowledge and ability. After 14 completing the evaluation, review it with the operator, correcting any areas not found satisfactory. This is an instructional as well as an employee evaluation tool. The evaluation forms should be completed for all equipment operators and kept in their personnel tile. Guidelines for Heavy Equipment Safety All equipment must be checked and operational BEFORE any employee uses the machine. As a manager for a transfer station or MRF, you may receive or inherit mobile equipment for your operations. The guidelines below contain the items that must be checked prior to the equipment being used. Machinery in this category include haul trucks, loaders, skid steers, and forklifts. ,- 0 Seat belts - must be installed in all equipment and be operable. 0 Roll over protection structure (ROPS) - required on all equipment except street sweepers. . Back up alarm (on all equipment except pickup trucks) - a minimum 85-dB alarm must sound whenever the machine is in reverse. 0 Horn must be working. Gages and alanns - for oil, hydraulic, air pressure and coolant temperature must be - functioning and accurate. Hand holds, ladder or steps &act - operator must be able to ascend into the cab or check fluid levels and be able to maintain three points of contact at all times (ie. two hand holds and one foot hold); missing steps, ladder rungs, or platforms must be repairedreplaced. Walking surfaces free of slipping hazards - smooth steps or walking surfaces must be made slip resistant. This may man using extruded metal steps where appropriate or placing adhesive safety treads on walk areas. Portable fire extinguishers must be charged and certified - all equipment will have a 10-lb. ABC extinguisher at a minimum. It is also recommended that an additional 20-lb. extinguisher be mounted on the machine where it is accessible from ground level. Work lights on front and rear - two lights front and re.= are highly recommended. 0 CB or two-way radio working. Window glass in good condition - cracked glass should be replaced as soon as possible. Window glass that has been broken leaving an exposed jagged edge must be removed from the machine immediately. -0 Windshield wipers working properly. 0 Equipment Daily Report - a pre-operational inspection must be done each shift, any fuel or oil added must be noted, any probledstrange noises reported. See the Operations Section '3 of this manual section for more details. 0 Brakes - service brakes on all vehicles must be in working order. If there is any malfunction, the unit must be removed from service and repaired before it is used again. e Emergency Brakes - must be operational and adjusted as needed. 0 Amber strobe - the strobe light is required on all equipment used inside a transfer station or MRF and also on street sweepers. The light must be on whenever the machine is operating. Scavenging It is Company policy that any material or waste stream arriving at any of the Company's MRFs or transfer stations is the property of the Company. Therefore, the removal of any material from these facilities without written approval from the Director of Compliance and Landfill Development (with three weeks notice) is considered theft. Facility management should instruct their personnel and make known to their customers that scavenging absolutely is not permitted without facility management permission. Facility managers must submit a request, in writing, to the Director of Compliance and Landfill Development and get an approval in writing prior to any scavenging at any of the Company's facilities. Third Party Disposal Sites It is the policy of the Company not to utilize solid waste disposal facilities that expose the Company to higher than necessary risk of remedial liabilities. The following procedures and controls will be followed for non-AWI facility use. Initial Evaluation Thirty days before any non-AWI solid waste disposal facility is utilized for the first time, the Director of Engineering in Scottsdale shall be contacted in writing using the Third Party Disposal Request Form found in the Forms Section of this manual. The Engineering and Compliance Department shall determine if use of the proposed disposal facility will expose the company to higher than normal risk of remedial liabilities. If the assessed risk is within normal expectations, then the requesting operation will be informed in writing that utilization is authorized. If the assessed risk is high, then the disposal facility shall not be utilized unless approval in writing is received from the Vice President of Operations. Re-Evaluation Every two years, any AWI operation utilizing non-AWI disposal faciities shall contact the Director of Engineering to request reauthorization for use of the non-AWI disposal facility. If the assessed risk continues to be within normal expectations, the AWI operation will be informed that 16 utilization is acceptable. If the assessed risk is high, then the disposal facility shall no longer be utilized unless approval is received in writing from the Vice President of Operations. Evaluation Process r The Director of Engineering shall investigate State and Federal published listings to determine if the disposal facility is identilied as requiring remedial investigation. If merited, the Environmental Department shall visit the disposal facility to perform an environmental audit. From this information the department shall define an opinion on the level of risk of remediation and AWI's potential liability. Environmental Monitoring Environmental monitoring actitities are based on site-specific conditions such as the geology, hydrogeology, operating permit requirements, etc. Each facility will have a site-specific environmental monitoring plan. Radiation (Transfer Stations) To monitor waste vehicles for radioactive materials, a radioactive material detection system should be installed at each facility in the area of vehicle check-in or at the scale house. Detectors should be checked daily to assure they are functioning properly and re-calibrated no less than the procedures for responding to an alarm Site specific procedures should be posted at transfer statioas with radioactive material detection systems and should include the telephone numbers for the state radiation control office, the US nuclear Regulatory Commission regional office, and the local or state police. If a vehicle passing the detector triggers the alarm, the following alarm response procedures are recommended: - yearly. At least one individual per shift should be trained in the operation of the equipment and Reset the monitor and survey the vehicle or container a second time to venfy radioactive material detection. If the alarm is triggered a second time, move the vehicle from the monitoring zone to a location where the vehicle may be kept indefinitely. No materials are to be removed f?om the vehicle nor should any employee sort through any waste until trained personnel arrive. No truck trailers or roll-off containers are to be dropped from the power unit that transported it to the facility. The vehicle that brought the load in must remain in tact until given authority to detach from the load or leave the property by a State or Federal agency. The driver should then be monitored separately by the detection system to verify that hekhe has not caused the alarm to sound. This may be the case if the driver has received radioactive pharmaceuticals as part of prescribed medical treatment. 17 If the radioactive material is traced to the waste, the waste cannot be accepted by the facility. Notification to the proper authorities should proceed in the following order 1. Regional Engineer- the engineer will then contact their Regional Vice President 2. District Manager 3. Director of Engineering, who will then contact the Director of Landfill Development 4. Director of Safety .- .. 4 The site manager will notify the appropriate state radiation control office. (Appendix B of this section) The State will be the coordinator for storing and final disposal of the waste. Leachate Management Leachate collection system shall be managed and maintained in accordance with all local, State, and Federal regulations, permits and agreements. The Site Manager is responsible for maintaining the leachate collection systems. Leachate management includes removal and proper disposal. Storage systems must be designed according to applicable regulations. Should a spill or leak occur, the procedures outlined in the Spill Prevention, Control and Countenneasures Plan should be utilized. All local, state and federal permits, approvals, and agreements must be obtained prior to utiliziig i a treatment facility or method. Each facility should have both a primary and secondary (backup) facility permitted. Any company vehicles or third party haulers should have all applicable and up to-date permits for hauling of leachate. Leachate dischaxged to sanitary sewer systems must be in accordance with facility seer permits and periodic testing requirements must be maintained. Any and all quantities of leachate removed for disposal shall be logged on the day of disposal. The Site Manager must be on site at the time of leachate removal. The Site Manager must sign the leachate disposal log when the leachate is removed to document that the manager has approved the disposal method. If an employee is assigned by the Site Manager to perform any of the disposal tasks, the employee must also sign the log sheet. Copies of the daily log sheets shall be.maintained on file at the site and reports sent to the state agency as required. Leachate analysis should be performed in accordance with permits and agreements. Contact your District Engineer or, where appropriate your consulting engineer for assistance with leachate management practices and design features. Storm Water Management If applicable, a Storm Water Pollution Prevention Plan should be written and on file at each facility. Associated storm water discharge permits should be applied for and obtained. One-time or periodic sampling shall be conducted in accordance with local, state and federal permits. Contact your Regional Engineer for assistance with storm water mapagemnt. 18 Surface Water Diversion 7 Surface water or storm water run-off should be diverted away from the tipping area and loading bays. Contact your Regional Engineer for assistance with surface water diversion. Wash Water Management Truck and equipment wash water shall be collected or discharged so as not to impact the surrounding environment and storm water. Solids and residues that result &om washing shall be collected and disposed of properly. On-site washing shall be conducted on a wash pad and wash water collected to prevent direct off- site discharge. Washing should be done utilizing a high pressure and low volume wash unit. Wash water shall be managed by one of the following methods: Discharged to an on-site recirculation / recycling system. Discharged to an on-site waste water treatment system (does not include septic system unless allowed by permit and design). Discharged to a sanitary sewer or directly hauled to an off-site treatment facility. Discharged through sedimentation pond or catch basin I grease trap. Collected in holding pond or tank for evaporation. Other method approved by the Compliance Department. - AB local state and federal permits shall be obtained prior to implementation. Each method is subject to applicable regulations and is site specific. Contact your Regional Engineer for assistance. Regulatory Inspections, Meetings and Correspondence Any time a regulatory agency inspection occurs at the facility, a brief memo must be transmitted to the Director of Compliance and Landfdl Development with a copy to the Director of Engineering no later than 5:OO PM the following day. When your office receives the regulatory report, it should be faxed to the Director of Compliance and Landtill Development and the Director of Engineering the same day. Ifa written response is necessary, all written responses must be.approved by the Compliance Department no less than five days prior to the response due date. A copy of written correspondence &om an agency must be sent to the Compliance Department the day of receipt. Any correspondence to an agency that discusses any type of permit violation etc. must be reviewed by the Compliance Department prior to mailing. 7 19 The Director of Engineering must be notified as soon as possible of a scheduled meeting or conference call with regulatory officials to discuss permitting or compliance related issues. Mer h discussion with the District Manager or his appointed personnel, the Company will decide what role, if any, the Compliance Department will play in the meeting. The following table defines the distribution requirements and approval procedures regarding regulatory inspections, communications, and meetings. Whenever a facility undergoes an inspection by any regulatory agency, a brief mmo should be prepared and distributed. The memo should include the following: a) type of inspection, ie. inspecting agency, b) date of inspection, c) name of inspector, d) reason for the inspection, and e) a summary of the outcome Type of inspection Distribution EPA (state, county, or federal) Memo to Director of Safety CC: Director of Engineering, Regional Engineer, District Safety Manager, District Manager, and any others at District Manager's discretion I OSHA, I Same as EPA, plus corporate Director of Human Resources and Director of Safety and Loss Control I- DOT Director of Safety and Loss Control, Regional WSafety Manager, District Safety Coordinator, District Manager County or Municipal Health Dept. Same as EPA ~ ~~ Depending on the type of correspondence, the following copies will be required Type of Correspondence Distribution Normal PennittingDaily Operations CC. Director of Engineering, Regional Engineer, District Manager Special Waste (including notification of special legislation) Coordinator waste legislation or changes in special waste CC: Regional Engineer, Special Waste Notice of Violations AU drafts of responses to NOV's will be Director of Safety. Director of I On day received, fax copy of the violation to: reviewed by Jk Vanweelden and Doug Bono. Concerns and revisions will be returned Engineering, and your Regional Engineer - -. 20 in Writing. The final draft Will be faxed back Fax the proposed response at least 5 days and markd "Approved". If no written I urior to its due date: I - correspondence for revision is received please call Maria Beele two days before the submission due date to verify approval. Director of Safety Director of Engineering OSHA, MSHA, DOT CC Director Safety & Audits, Region HWSafety Notification of any meetings or conference calls with regulatory officials involving permitting, compliance-related issues or notices of violations will be communicated as soon as the meeting is contemplated or scheduled. After consulting with the respective Regional Vice Presidents and District Managers or their appointee, the subject matter of the meeting will determine the level of involvement by the Compliance and Landfill Development Department. In many cases, District personnel will handle the meeting exclusively. Communication Required Distribution Initial notification of meeting Fax immediately to: Director of Safety Director of Engineering Within two days following the conference call District Manager summariziig the results of the meeting or call. Director of Engineering Senior Manager should prepare a brief memo Director of Safety or meeting the Regional Engineer or attending Copies to: Regional Vice President (if meeting involves landfill development include a copy to Director of Landfill Development) It is necessary to keep us apprised of all meetings with landowners, consulting engineers, attorneys, political officials, public meetings, or public hearings regarding siting of new facilities or expansions of existing facilities. As in the case of other regulatory meetings, the District personnel will handle their own siting and expansion. History has proven that local relationships are the key to landfill development. Communication Required Distribution Prior to meeting send a brief memo explaining the reason for and content of the meeting. To: Director of Landfill Development CC Director of Safety, Director of Engineering or Senior Engineer Following the meeting send a brief memo CC: Director of Safety, Director of Engineering or highlighting any pertinent outcomes or key - To: Director of Landfill Development 21 I points. Senior Engineer 3% Any construction contracts (i.e. dirt, liner, etc.), consulting engineering contracts or environmental senice contracts must be approved in writing prior to entering into said contracts. Communication Required Distribution Prior to entering into a contract. Submit proposed contract to Director of Engineering or Senior Engineer for approval Information regarding occupational illnesses (i.e. needle sticks, exposure to toxic fumeslgases), serious injuries or fatalities must be communicated immediately. I Communication Required Immediate notification by telephone. Accident or injury report as soon as it is available. Distribution To: Director Safety & Loss Control, Director Human Resources, your District Manager and District Safety Coordinator, Regional WSafety Manager -i Fax: Director Safety & Loss Control, Director Human Resources, District Manager, District Safety Coordinator, Regional HWSafety Manager - 22 Load Checking Program .- Purpose State and Federal law requires that owners and operators of all solid waste management facilities implement a program for detecting and preventing the acceptance or disposal of regulated hazardous wastes and TSCA regulated polychlorinated biphenyl (PCB) wastes. In part, this program is aimed at addressing commercial or industrial sources of PCB wastes, such as: Mineral oil and dielectric fluids containing PCBs. Contaminated soil, dredged material, sewage sludge, and other debris from a release of PCBs. Transformers and other electrical equipment containing dielectric fluids. Hydraulic machines. Other unacceptable wastes include asbestos containing material (unless pre-approved and permitted), liquid waste, prohiiited vegetative wastes, and those wastes prohiiited and otherwise recycled. Suspicious wastes may be. indicated by hazardous placards or markings, powder or dusts, sludge, bright or unusual colors, drums or commercial size containers, chemical odors; red bagged material and potentially infectious medical waste. General - A designated inspector will inspect at least five random loads (or more if required by permit) of solid waste delivered to the facility on a random day each week. Typically, two of the five loads will be bulk loads and the other three will be packer trucks. The Inspector will fill out a Waste Inspection Report and Load Checking Log Sheet entry for each load. (See Forms Section) All forms must be med out completely and kept in the facility Operating Record. Loads that are rejected will be documented on the "Rejected Load form The inspector may be the chief operator, site manager, foreman, equipment operator, or the gate attendant. Employees who perform load inspections and all operators who work at the tipping face will receive training to identlfy unacceptable, hazardous, and PCB wastes within 30 days of being &signed to work in a tipping area. Handling of hazardous and PCB wastes are described in the written program found at the end of this document. Training must be documented and placed in the Operating Record. Warning Signs Signs posted that read: "No Hazardous Waste Accepted" and "Non-Hazardous Special Waste (Drums, Sludge, and Liquids) Must Be Accompanied By A Waste Manifest". 23 Training The on-site personnel assigned as load checkers or inspectors will be trained to identify potentially regulated hazardous waste and PCB wastes. Training will include safety meetings, guidance documents and on the job training. The training emphasizes methods to identify containers and labels typical for hazardous wastes and PCB wastes. It shall address hazardous waste handling procedures, safety precautions, and recordkeeping requirements. The local operations manager will assure that properly trained contractors will only perform any hazardous waste sampling or handling. At a minimum, contractors must have received certification for the 40-Hour Hazardous Waste Operators (HAZWOPER) training course. Documentation of training for all employees and contractors who sample and handle hazardous wastes will be placed into the Operating Record. Inspection Process Inspection priority will be given to commercial, industrial or medical sources, haulers with unknown service areas, to loads brought to the facity in vehicles not typically used for municipal solid waste, and to loads transported by previous would-be offenders. Vehicles will enter the site and stop at the gatehouse next to the scale. The gate attendant will collect the appropriate tipping fee and provide an unloading ticket to the transporter. The vehicle will then travel to the front of the transfer station and back up to the tipping floor area. The inspector will inform the driver that his vehicle has been selected for an inspection, and that the process will only take few additional minutes to complete. The inspector will record the transporters name, drivers name, license plate number, truck unit number, date and time. The loader operator (load inspector) will visually scan the load as it discharges from the truck and as it is spread on the tip floor. The driver is to remain present during the inspection. Once all the waste has been deposited and spread out, the inspector will document whether or not unacceptable waste was encountered. If none was found, the driver of the truck will be allowed to leave the tipping area. The form is considered to be part of the Operating Record for the facility and is to be kept on site for one year. 2% " Notification of Authorities If regulated amounts of hazardous waste or PCB wastes are detected, site personnel are to contact the general manager, District Manager and or the Regional Engineer immediately. If the wastes are confirmed hazardous by the management, the General Manager will notify the appropriate agencies and assure that the. waste is handled properly. The appropriate agencies will be notified the first business day after a holiday or weekend period if such wastes are found after regular business hours. Agency phone numbers and contacts are listed at the end of this section. 24 Management of Hazardous or PCB Wastes It is the responsibility of the transporter to contact a hazardous waste contractor to handle and manage hazardous or PCB waste found during normal operations or during a detailed random inspection. I If the site manager is unable to identify the transporter who brought the hazardous waste, the manager will ensure that the waste is managed in accordance with all applicable Federal and State regulations. Management shall retain a qualified contractor to handle hazardous wastes inadvertently received by the facility. Hazardous waste will not be stored at the facility on a regular basis. If hazardous waste must be temporarily stored at the facility the following procedures will be followed: The waste is placed in tanks or containers. The date of receipt of the waste is clearly marked and visible on each container. An employee is designated as the emergency coordinator, who is responsible for coordinating all emergency response measures. The name and telephone number of the emergency coordinator, hazardous waste contractor, and the number of the fre department will be posted next to the facility phone. - The following procedures are to be followed if the Company contracts to have any hazardous wastes transported off site: The contractor must have an EPA identification number. Package the waste in accordance with Department of Transportation (DOT) regulations under 49 CFR Parts 173, 178 and 179. (The container must be labeled, marked, and display a placard in accordance with DOT regulations on hazardous wastes under 49 CFR Part 172.) Properly manifest the waste, designating a permitted facility to treat, store, or dispose of the hazardous waste. The following procedures are to be followed if the facility contracts to dispose of PCB wastes: The contractor must have an EPA PCB identification number. The PCB waste must be properly stored. The containers or items must be clearly marked with the words "Caution - Contains PCB's". Manifest the PCB waste for shipment to a permitted incinerator, chemical waste landfiu, or high efficiency boiler (depending on the nature of the PCB waste) for proper disposal. .- . 25 Disposal of Dead Animals Accepting Dead Animals No transfer station will accept dead animals unless the proper certification is received prior to disposal. Diseased animals will never be accepted at any company owned or operated transfer station. Under no circumstances shall a live animal be brought into the transfer station and subsequently euthanized or "put down." The transfer station can only accept a dead animal accompanied by the appropriate RCRA certification. In most instances, the disposal of dead animals is acceptable as a solid waste. It will be necessary to complete the "Animal Carcass Waste Certification" form for each load or partial load of dead animals. This certification must be signed by the generator and kept on f3e at the transfer station as part of the facility recordkeeping. Dead animals should be contained in plastic bags to control vectors. They may be bagged individually or in groups depending on the sk and type of carcasses. The manager shall notify operations personnel as soon as possible so that disposal can be handled properly. Operations personnel will assure the carcasses are put on the first available transport from the transfer station. If large quantities are received at one time, special handling may be necessary as determined by site management. Large animals, Le. horse, cows, etc. may be too big for bagging. However, the animal shall be covered with a tarp to reduce public visibility. To avoid difficulty unloading larger animals, a " rope, harness, or other means to aid in extracting the carcass from the customer's vehicle should be employed prior to arrival at the transfer station. Disposal Alternatives Sending large animals to a rendering plant is an alternative to landfill disposal. Most cities and towns have one or more animal by-product processors listed in the local yellow pages. If a diseased animal carcass is brought to the facility, the County Health Department or appropriate regulatory agency shall be notified immediately. The vehicle containing the carcass shall be directed to a location so as not to interrupt traffic or impede operations. Facility management shall iusure that the Health Department finds an alternate disposal method. Information regarding the rejected load shall be entered into the daily log. The appropriate disposal method is incineration or mass burial with approved infection controls. Incineration or mass burial of diseased animals is not to be performed at any company owned or operated Iandj3.l. Personnel Orientation and Training The Manager will conduct an orientation program to familiarize employees with the organization and to train employees for their new position. The Manager is responsible for the overall development and coordination of the orientation program and for implementing the portions of it that cover policies, benefits, and new employee - files and documentation. Each supervisor is responsible for orientation as it applies to introducing the new employee to the job and the department and may select a coworker to serve as a sponsor to facilitate the new employee’s transition. The Manager wiU maintain records of all training programs completed by each employee. r Refer to the following for specific OSHA and company training requirements. Facility Safety and Training Manual Special Waste Manual Training Curriculum - MRFs and Transfer Stations 27 Personal Protective Equipment The following list of safety equipment should be used as appropriate for Company personnel, Company subcontractors, and Company customers: Hardhats Any person, including customers, personnel, and subcontractors who are on Transfer Station or MRF property that is owned by the Company or its subsidiary must wear an approved hardhat (approved hardhats must meet the ANSI 286 9.1 1986 Standard for Industrial Protective Helmets) when they are not in the confines of their equipment, a building or vehicle. At a minhm, six (6) clean hardhats should be kept at the facility office for visitors or customers who do not have their own haidhats. Customers who are issued Company hardhats during their visits to the facilities should sign them out and in and leave their drivers license at the office facility to ensure the return of the hardhat. Letters should be ded to all regular customers or subcontractors explaining the hardhat rules and other safety or facility rules or procedures that the facility plans to enforce prior to instituting said rules. The mailing of these letters should be documented in each customer or subcontractor file so no question exists as to when and where facility rules were mailed. In addition, several copies of site-specific facility rules should be kept at the office and be given to any non-regular customers to read prior to letting the customer enter the facility. In geographic 4 areas where Spanish Americans are common, these safety or facility rules should also be printed in Spanish. If facility management deoides against handing out rule sheets to non-regular customers, they may choose to have the rules written on a billboard-type sign and posted in the area of the scale house or ticket gate. Maintenance Facilities. As the scope of work will vary considerably depending on the requirements of the respective job tasks at these facilities, it will be the responsibility of District Management and District Compliance personnel to delineate when and where hardhats should be Used. Safety Glasses Safety glasses should be at all times when the risk of eye injury exists. District Management and District Compliance Personnel will decide on this application, except for the following situations where safety glasses will be mandatory: Anyone on the tipping floor of the transfer station. 0 Anyone in the sorting, baling, compacting or tipping areas of a MRF. 0 Any maintenance personnel working in, on, or around equipment or when using took or machinev requiring eye protection. 30 Respirators - The use of respirators is required anytime Company personnel are exposed to any waste streams that have a tendency to contain high concentrations of particles which can become airborne (i.e. fly ash, blast furnace residue, etc.) when disposal operations are in progress. Gloves As the scope of work where gloves are required will vary, it will be the decision of District management and District compliance personnel when gloves will be necessary for Company personnel. Any employee sorting or handling recyclables must wear gloves. Florescent Vests The use of florescent vests will be mandatory anytime Company personnel are used in any of the following capacities: 0 Spotters 0 Paper or litter pickers. Hearing Protection Disposable earplugs will be made available to all employees. A wall dispenser containing - individually wrapped earplugs will be mounted in each shop for employee use. Regional WSafety and District Safety Personnel will work with facility management to determine whether or not hearing protection is mandatory or optional. Consult the Facilit-y and Safety Training Manual for specific guidelines regarding Hearing Protection. USTRIES, INC. 15580 N. GREENWAY-HAYDEN LOOP. SUITE lOO*SCOTTSDALE.AZ 85260.TEL (480) 627-2700 FAX: (480) 627-2107 DISTRIBUTION REFERENCE ~G~~~~~~~~~~~~~~~~~~~~~~~~~ ~~~~~~H~~E.~~~~~~~~~ :~~~~~~~~~~~~~~~~~~~~ ............................ ...... .: .......... ... .. ....... .. ..~ ...,..,.. ~ ...,.,,...... .... .... ,... . .. . . . .. .. .. .... . . . . . . . . . , ,, "a. ...... ....I.. I .....;.,.. .................... ,, Doug Borro Director of Engineering Becky Stein Special Waste Coordinator Cheryl Anderson Director of Human Resources Garry Mosier Director of Safety Don Haufe Director of Risk Management Mark Johnson Auditor Manager 15880 N. Greenway-Hayden Loop Suite 100 Scottsdale, AZ 85260 15880 N. Greenway-Hayden Loop Suite 100 Scottsdale, AZ 85260 15880 N. Greenway-Hayden Loop Suite 100 Scottsdale, AZ 85260 15880 N. Greenway-Hayden Loop Suite 100 Scottsdale, AZ 85260 15880 N. Greenway-Hayden Loop Suite 100 Scottsdale. AZ 85260 15880 N. Greenway-Hayden Loop Suite 100 Scottsdale. AZ 85260 . . . . . . . . . . . . . . Tel: 480-627-2787 Fax: 480-627-2707 Tel: 480-627-2700 x217 Fax: 480-627-8703 Tel: 480-627-2700 x515 Fax: 480-627-2718 Tel: 480-627-2744 Fax: 480-627-2707 Tel: 480-627-2716 Fax 480-627-2707 Tel: 480-627-2731 Fax 480-627-2707 I I I Dave Hildreth Director of Landfill Development Fort Worth, TX 76108 7797 Confederate Park Road Tel: 817-237-4178 x19 Fax: 817-238-9676 Shawn McCash N. Greenway-Hayden Loop Tel: 480627-7081 Fax: 413-828-8562 Suite 100 Eric Ballenger 26 W. 580 Schick Road Hydrogeologist Hanover Park, II 60103 Tel: 630-894-9095 Fax: 630-894-3089 Victoria Warren Senior Hydrogeologist McCordsville, IN 46055 Fax: 317-335-9899 Revised 61281W 33 APPENDIX B State Agencies Alabama Land Division Department of Environmental Management PO Box 301463 Montgomery, Alabama 36130-1463 3341271-7700 Alaska Department of Environmental Conservation Division of Environmental Health Solid Waste Section 555 Cordova Street Anchorage, Alaska 99501 9071269-7500 ArizOM Department of Environmental Quality Waste Programs Division 3033 N. Central Avenue Phoenix, Arizona 85012 602207-2381 Arkansas Department of Pollution Control and Ecology POBox 8913 Hazardous Waste Division Little Rock, Arkansas 72219-8913 5011570-2872 Wiomia California Integrated Waste Management Board 8800 CaI Center Drive Sacramento, California 95826 916/255-2182 (~2200) Department of Public Health and Environment Colorado Hazardous Materials and Waste Management Division 4300 Cherry Creek Drive S. Denver, Colorado 80222-1530 3031692-3300 Connecticut Department of Environmental Protection Bureau of Waste Management 79 Elm Street Hartford, Connecticut 06106-5127 2031424-3021 - ,”- Delaware Environmental Control Department of Natural Resources and Division of Air and Waste Management Hazardous Waste Branch PO Box 1401 89 Kings Highway Dover, Delaware 19903 302J739-3689 PO Box 455 Delaware Solid Waste Authority Dover, Delaware 19903-0455 302/739-5361 District of Columbia Solid Waste Management Administration 2750 South Capitol St., SE Washington, District of Columbia 20032 202l645-7044 Florida Waste Management Division, Twin Towers Bldg. Department of Environmental Protection Tallahassee, Florida 32399-2400 2600 Blairstone Road 9041487-3299 Georgia Environmental Protection Division Department of Natural Resources Land Protection Branch 4244 International Parkway, Suite 104 Atlanta, Georgia 30354 4041362-2537 Hawaii Department of Health Solid and Hazardous Waste Branch 919 Ala Moana Boulevard Room 212 Honolulu, Hawaii 96814 8081586422.5 Idaho Department of Health and Welfare Division of Environmental Quality 1410 N. Hilton Boise, Idaho 83706 2081334-5860 34 Illinois Environmental Protection Agency PO Box 19276 Solid Waste Management Springfield, Illinois 62794-9276 217I782-6761 Department of Environmental Management Indiana Office of Solid and Hazardous Waste Room 1154 317/232-3210 100 N. Senate, POB 6015 Iowa Department of Natural Resources Waste Management Authority Wallace State mce Building 502 E. 9* Street Des Moines, Iowa 50319-0034 - Land Pollution Control Dlvision 5151281-8941 Kansas Bureau of Waste Management Building 740, Forbes Field Topeka, Kansas 66620 9131296-1600 Kenhrcky Department for Environmental Protection Division of Waste M'anagement Ft. Boone Plaza 14 Reilly Road Frankfort, Kentucky 40601 - 5OZ564-6716 Louisiana Department of Environmental Quality PO Box 82178 Solid and Hazardous Waste Baton Rouge, Louisiana 70884-2178 ~04n65-0249 Maine Department of Environmental Protection Bureau of Remediation and Waste Management State House, Station 17 Augusta, Maine 04333-0017 2071287-2651 Department of the Environment Maryland Waste Management Administration Baltimore, Maryland 21224 2500 Broening Highway 410/631-3304 Massachusetts Bureau of Resource Protection Department of Environmental Protection Solid and Hazardous Waste Section Boston, Massachusetts 02108 1 Winter Street 6111292-5960 Department of Natural Resources Michigan Waste Management Division Lansing, Michigan 48909-7741 106 W. Allegan 5171373-2730 Minnesota Minnesota Pollution Control Agency Ground Water and Solid Waste Division 520 Lafayette Road St. Paul, Minnesota 55155-4194 612296-7333 Mississippi Department of Environmental Quality Office of Pollution Control Solid Waste Management Branch Jackson, Mississippi 39204 2380 Highway 80 West 601B61-5171 Missouri Department of Natural Resources Division of Environmental Quality Hazardous Waste Program PO Box 176 Jefferson City, Missouri 65102 573n51-5401 Montana Department of Environmental Quality Waste Management Division PO Box 200901 Helena, Montana 59620-0901 406/444-1430 35 Nebraska Department of Environmental Quality 1200 N Street, Suite 400 Lincoln, Nebraska 68508 402471-2186 Nevada Department of Conservation and Natural Resources Division of Environmental Protection 333 W. Nyt Lane Carson City, Nevada 89710 7026874670 New Hampshire Waste Management Division Department of Environmental Services 6 Hazen Drive Concord, New Hampshire 03301 6031271-2925 New Jersey Department of Environmental Protection Division of Solid and Hazardous Waste Trenton, New Jersey 08625 120 South Stockton Street, CN 421 New Mexico POBox26110 Santa Fe, New Mexico 87502 5051827-0169 New York Department of Environmental Conservation Division of Solid Waste Albany, New York 122334010 50 Wolf Road 51814576603 North Carolina Department of Environmental, Health and Natural Resources Waste Management Division PO Box 27687 Raleigh, Noah Carolina 2761 1 919fl33-4996 - -. Environmental Department North Dakota Department of Health and Consolidated Laboratories Waste Management Division PO Box 5520 Bismarck, North Dakota 58506-5520 7011326-5166 Ohio Ohio Environmental Protection Agency PO Box 1049 Division of Solid and Infectious Waste Management Columbus, Ohio 43228-1049 6141644-2621 Department of Environmental Quality Oklahoma Solid Waste Management loo0 NE lo* street 4051745-7100 OklahomaCity, Oklahoma73117-1212 Department of Environmental Quality Oregon Division of Hazardous and Solid Waste 81 1 SW 6& Avenue Portland, Oregon 97204 5031229-5913 Pennrylvania Department of Environmental Protection Bureau of Waste Management Rachel Carson State Office Building 400 Market Street Harrisburg, Pennsylvania 17101-2063 717I787-9870 Puerto Rim Environmental Quality Board PO Box 11488 santurce, Puerto Rico 00910 809fl25-5140 &ode Island Department of Environmental Management Division of Waste Management 235 Promenade Street 4011277-2797 Providence, Bode Island 02908 36 South Carolina Department of Health and Environmental Control 2600 Bull Street Columbia, South Carolina 29201 803i740-1590 South Dakota Department of Environmental and Natural Resources Environmental Regulation Division Waste Management Program Pierre, South Dakota 57501-3181 523 Fast Capitol Avenue 605fl73-3153 Tennesee Department of Environment and Conservation Solid Waste Management Division 401 Church Street 5" Floor, L&C Tower Nashville, Tennessee 37243-1535 - 615/532-0780 TearaS TNRCC Austin, Texas 7871 1 121OOPark 35 Circle 5121239-1000 Utah Department of Environmental Quality Division of Solid and Hazardous Waste PO Box 144880 Salt Lake City, Utah 841144880 801/538-6170 Vermont Agency of Natural Resources Solid Waste Management Division 103 Swth Main Street Laundry Building Watertiury, Vermont 05671404 802/241-3444 Virginia Department of Environmental Quality 629 E. Main Street Richmond, Virginia 23219 804/698-4000 _- Washington Department of Ecology Hazardous Waste and Toxics Reduction Program '1 PO Box 47600 Olympia, Washington 98504-7600 3601407-6702 West Virginia 'Office of Waste Management Division of Environmental Protection Charleston, West Virginia 25301 1356 Hansford Street 304/558-5935 Wisconsin Department of Natural Resources Bureau of Waste Management - WAJ3 PO Box 7921 Madison, Wisconsin 53707 608/266-1327 Wyoming Department of Environmental QuaIity Solid and Hazardous Waste Management Division Cheyenne, Wyoming 82002 122 West 25" Street 307n71-7752 37 'OSSIBLE )RIGINS APPENDIX C Examples inherently Radioactive Scrap DOSSIBLE SCRAP FORMS POSSIBLE SCRAP METAL US Department of Energy (DOE) facilities Nuclear reactor/electricity generating facility Research laboratories using an accelerator Radiopharmaceutical facilities using an accelerator Fabricators using thoriated tungsten welding wire Specialty glass manufacturers Aircraft manufacturers Military munitions manufacturers Aircraft engine parts Concrete Countelweights (aircraft, missiles, projectiles) Electronics Gas mantle, incandescent Glassware, glass enamel, glass brick, glass enamel frit Piezo ceramic Lamps (electrical, germicidal, sun) Lens, finished optical Metal foil Metal liners Military armor plating Munitions Tools Welding rods Aluminum Copper Ferrous metal Glass Lead Magnesium Mixed metal turnings Nickel Stainless steel Thorium alloys 38 APPENDIX D STATE AGENCIES ARK RADIATION CONTROL Radiation Regulatov Agency 4814 South 40 Street Phoenix, AZ 85040 Tel: (602) 2554845 ". Fax: (602) 437-0705 CALIF County of San Diego Department of Occupational Radiological Health 9325 Hazard Way San Diego, CA 92123 Tel: (619) 694-2169 COLC Department of Health Radiation Control Division 4300 Cherry Creek Drive South Tel: (303) 692-3030 Fax: (303) 782-5083 GEO Department of Natural Resources Radioactive Materials Program 4244 International Pkwy Ste 114 Atlanta, GA 30354 Tel: (404) 362-2675 Fax: (404) 362-2653 ILL11 Department of Nuclear Safety 1035 Outer Park Drive Springfield, IL 62704 Tel: (217) 785-0600 Fax: (217) 786-7223 ~ INDI State Board of Health Radiological Health Section PO Box 19641330 W. Michigan Street Indianapolis, IN 46206-1964 rel: (317) 633-0150 Fax: (317) 633-0154 3NA PUBLIC SAFETY Department of Public Safety Highway Patrol Bureau -Motor Control Hmat Response PO Box 6638 Phoenix, AZ 85005 Tel: (602) 223-2212 Fax: (602) 223-2508 )RNIA PO Box 942898 California Highway Patrol Tel: (916) 445221 1 Sacramento, CA 94298-0001 Fax: (916) 446-4870 iADO Colorado State Patrol 700 Kipling Street Operational Selvices Branch Tel: (303) 239-4546 Denver, CO 80215 Fax: (303) 2394577 lGlA Department of P ublic Safety Sate Patrol Division PO Box 1456 Tel: (706) 5355428 Fax: DIS lllinois State Police Hazardous Materials Section PO Box 19461 Springfield, IL 62794-9461 Tel: (217) 782-7762 Fax: (217) 524-2391 Indiana State Police Government Center North 100 N. Senate Avenue Tel: (317) 232-8248 Indianapolis, IN 46204 Fax: (317) 232-0652 39 Radiation Control Program 305 South Street Jamaica Plain, MA 02130 Tel: (617) 727-9710 Fax: (617) 727-2098 906 Elm Street Concord, MA 01742 Tel: (617) 566-4500 Fax: (508) 727-1808 I MICHIGAN Demrtment of Public Health I Deoartment of State Poke DiGision of Radioloqicar Health 3423 N. Logan Street Lansing, MI 48909 Tel: (517) 335-8200 Fax: (517) 335-8706 714 S. HarrisonRoad E. Lansing, MI 48823 Tel: (517) 336-6100 Fax: (517) 336-6257 I MISSOURI DeDartment of Health I Missouri Hiahwav Patrol Bureau of Radiological Health 1730 E. Elm Street Jefferson City, MO 65102 Tel: (314) 751-6160 Fax: (314) 751-6010 PO Box 56i Tel: (314) 751-3313 Jefferson City, MO 65102 Fax: (314) 751-9419 I NEBRASKA Department of Health Division of Radiological Health 301 Centennial Mall S Lincoln, NE 68509 lek (402) 471-0105 Tel: (402) 471-2168 Nebraska State Police PO Box 94907 Lincoln, NE 68509-4907 Fa: (402) 471-0169 Fax: (402) 471-3295 NEW YORK Department of Environmental Conservation New York Sate Police 50 Wolf Road, Room 442 Bureau of Radiation Sate Office Campus Albany, NY 12233-7255 Albany, NY Tel: (518) 457-2200 NY City (718) 643-7967 Tel: (518) 457-6811 Fax: (518) 4586434 NY City (718) 643-4616 Fax: (518) 457-9620 Public Security Building #22 NORTH CAROLINA North Carolina Highway Patrol PO Box 27687 Tel: (919) 733-3861 Raleigh, NC 2761 1-7687 Fax: (919) 733-6593 40 OHIO RADIATION CONTROL I Department of Health PUBLIC SAFETY I Department of Hiahwav Safetv I Bureau of Radiological Health I Diiision of State hiahkav Pairol 35 E. Chestnut Street Tel: (614) 64.4-2727 Columbus, OH 43266-0118 Fax: (614) 644-1909 660 E. Main Street Columbus, OH 43266-0562 Tel: (614) 466-2660 -I Fa: (614) 752-3040 I OKLAHOMA Department of Environmental Quality 1 Department of Public Safetv Radiation Management Section 1000 Northeast 10th Street Tel: (800) 522-0206 Oklahoma City, OK 73117-1212 Fax: (405) 271-8425 PO Box 11415 Tel: (405) 425-2043 Oklahoma City, OK 73136 Fa: (405) 521-6227 I SOUTH CAROLINA Department of Health and Environmental Control I Department of Public Safetv Bureau of Radiological Health 2500 Bull Street Tel: (803) 734-4629 Columbia, SC 29201 .Fax: (803) 734-4590 State Highway Patrol 5420 Broad River Road Tel: (803) 737-1030 Columbia, SC 29210 Fax: (803) 737-1785 TEXAS Department of Heaffh I Texas Sate Police Bureau of Radiation Control Austin, TX 78756-3189 1100 W. 49th Street Tel: (512) 458-7460 Fax: (512) 834-6690 Ul Department of Environmental Quality Division of Radiation Control 168 North 1950 West Tel: (801) 536-4123 Salt lake City, UT 841 14-4850 Fa: (801) 533-4097 , ~ . _" 5805 N. Lamar Blvd. Tel: (512) 4652116 Austin, TX 78752 Fax: (512) 4652176 2H 4501 S. 2700 W. Utah Highway Patrol Salt Lake City, UT 841 19 Tel: (801) 965-4505 Fax: (801) 965-4716 I VIRGINIA Department of Health 1 Viminia State Police - Motor Gamer Safetv Bureau of Radiological Health Main Street Station 1500 E. Main Room 104A Richmond, VA 23219 Tel: (804) 674-2400 Fax: (804) 786-6979 and Hmat Enforcement PO Box 27472 Richmond, VA 23261-7472 Tel: (804) 674-2000 Fa: (804) 674-2267 41 APPENDIX E UNITED STATES NUCLEAR REGULATORY COMMISSION OPERATIONS CENTER (24 HOURS) Tel: (301) 816-5100 Bethesda, Maryland Fax: (301) 492-8187 REGION I Connecticut. Delaware, District of Columbia, 475 Allendaie Road Tel: (215) 337-5000 Maine, Maryland, Massachusetts, New King of Prussia, PA 19406-1415 Hampshire, New Jersey, Pennsylvania, Rhode Fax: (215) 337-5324 Island, Vermont REGION II Alabama, Florida, Georgia, Kentucky, 101 Marietta Street, NW Ste 2900 Tel: (404) 331-4503 Mississippi, North Carolina, Puerto Rico, South Atlanta, GA 30323 Carolina, Tennessee, Virginia, Virgin Islands, Fax: (404) 331-4479 West Virginia REGION 111 Illinois, Indiana, Iowa, Michigan, Minnesota, 799 Rwsevelt Road Missouri, Ohio, Wisconsin Tei: (708) 790-5500 Glen Ellyn, IL 60137 Fax: (708) 790-5665 REGION IV Fax: (817) 860-8210 Wvomina Arlington, TX 7601 1-8064 Montana, Nebraska, New Mexico, North Tel: (817) 860-8100 Dakota, Oklahoma, South Dakota, Texas, Utah, 611 Ryan Plaza Drive Ste 400 Arkansas, Colorado, Idaho, Kansas, Louisiana, Parkway Central Plaza Building I I .. REGION V Fax: (51 0) 975-0350 possessions in the Pacific Tel: (51 0) 975-0200 Oregon, Washington, and US territories and Walnut Creek, CA 94596-0200 Alaska, Arizona, California, Hawaii, Nevada, 1450 Maria Lane ADDITIONAL INFORMATION POSTER "Hazardous Scrap Beware" US Nuclear Regulatory Commission US Government Printing Office . Tel: (202) 51 2-2249 Order Number: NUREG/BR-0108, August 1986 BOOKLET "Caution! It Could Be Radioactive Scrap" Institute of Scrap Recycling Industries Washington, DC Tel: (202) 737-1770 Order Number: FIADIOA DIRECTORY: State Agencies Involved with the Transportation of Radioactive Material Tel: (502) 227-4543 (updated annually) Conference of Radiation Control Program Directors Order Number: CRCPD Publication 91-4 42 APPENDIX F RADIOACTIVE WASTE DISPOSAL SERVICES' ,"- BROKERS STATE TELEPHONE CITY Environcare of US Ecolwv KY (502) 426-7160 Los Alamos Nat'l NM (505) 665-2712 NEUTRON CONTAMINATED DIFFUSE WILL HANDLE FAX SOURCES EQUIPMENT NORM^ I I I (301) 498-3017 Vf!S VeS YeS (615) 376-8481 Ye Yes Yes (201) 664-5586 no yes ~YeS (714) 997-3561 Ye YeS no VeS yes Yes (505) 667-1 139 PU239 Yes no Emples of Diffuse Nm: Pipe Scale, Contaminated Sdl ' lnfmation provided by Conference of Radiation Control Program Directon, June 1992 43 ,- FORMS 44 TRANSFER STATIONlMATERlALS RECYCLING FACILITY Roof Water System Wash Down System Plumbing Daily comments on operation and maintenance needs are to be listed on the reverse side of this form in the space provided. Inspected by (Print Name) Date Signature I I I I - 45 TRANSFER STATIONIMATERIALS RECYCLING FACILITY I DAILY CHECKLIST - Page Two DATE: DATE: DATE: DATE: DATE DATE 46 WASTE INSPECTION REPORT LOAD INSPECTION .DESCRIPTION Date of Name of Hauling Company: Name of Inspector: Random 0 ~nspection: Inspection: Inspection: Daily 0 Type of Time of ,-- Vehicle License Plate Number: I I Vehicle Identification Number: 1 ., 'SOURCE IDENTIFICATION LOW RISK SOURCES MEDIUM RISK SOURCES HIGH RISK SOURCES Large Manufacturing Doctor's Office - Residential - Dry Cleaners Office Buildings - Auto Body Repair - Schools - Small Manufacturing - Hospitals - Farms Apartments - - Other - Print Shops Restaurants - Waste Brokers - Department Stores - Other - - - Nursing Homes - - Paint Manufacturers - - POWS - Other ...... ... .. ... ..,. . ' : .... ' : ::::LOAD.CONTEMS'.. ,: . , ' ': . , . .. Household Wastes Yes 0 No TransformedCapacitors Yeso Nom - Metal Yes0 Nom Batteries Yes0 Nom Paper, Cardboard Yeso Nom Heat, Excessive Smoke? Yes0 Nom I Unusual Odors? yes NO I Unusual colors? Yes0 Nom DOES WASTE MATCH THE HAULER'S DESCRIPTION? Yes0 Nom Other Yes0 No0 Powders, Dusts Yesn Nom Soil Yes0 Nom Bulk Liquids Yeso Nom Radioactive Yes0 Nom Containers Yes Nom Medical Yes0 Nom Yard Waste, Brush, Stumps Yesn NOD Oil Yes0 Nom The load was discharged within a separate area of the facility and unloading of the contents was observed. Wood Yes 0 No Labeled Hazardous Waste Yes0 No0 .... ' "' . INSPECTOR VERIFICATION' .:. '::. .. .. Yes0 Nom There is no evidence of regulated hazardous wastes 0.e. dNmS containing hazardous waste labels, PCB wastes, sludges, other industrial precess wastes) or evidence of other yes No I7 unacceptable materials, i.e. asbestos. no evidence of Potentially Infectious Medical Waste (i.e., red bagged material, Yes0 No0 1 NOTE: If there is NO evidence of unacceptable waste materials w%hh the bad, fii this form. If UMCceptable waste is found, prepare Load Rejection Form, contact .Sits Manager, and document action taken below. .. ..... .. ... .. .ADDIJlONALACTJONT~TAKEN' ;:'. ." . ' ..... .. ... .. .. ... ... . : ... Signature of Inspector: Signatureof Driver: 51 1. 2. 3. 4. 5. 6. 7. 8. Waste Authorization Number: Waste Name: Generator Name: Generator Address: Transporter Name: Vehicle License No: Driver's Name: Reason(s) for Rejection: ATTACH A COPY OF ANY ONSITE TEST RESULTS (IF APPLICABLE) AND A COPY OF THE NON- HAZARDOUS SPECIAL WASTE MANIFEST. Signature of Site Inspector Date Print Name of Site lnspedor 53 ANIMAL CARCASS WASTE CERTIFICATION GENERAL INFORMATION 1. Source Name: 2. Source Address: County: City: State: Zip: 3. Contact Name: 4. Contact Telephone Number: TRANSPORTER INFORMATION 1. Transporter Name: 2. Transporter Telephone Number: 3. Contact Name: I hereby certw under penatty of law that the animal carcasses are not infectious and that the transpoder and source listed above will not deliver for disposal or attempt to deliver for disposal any infectious carcases defined by the Resource Conservation and Recovery Act and State and local regulations. To the best of my knowledge and belief the information contained herein is true and accurate. Authorized Representative Signature Date Authorized Representative Name (Type or Print) Title 54