HomeMy WebLinkAbout2012-12-11; City Council; 21073; Amendment Sublease Palomar Transfer Coast WasteCITY OF CARLSBAD - AGENDA BILL
AB# 21.073 CONSENTING TO AN AMENDMENT OF
THE SUBLEASE BETWEEN PALOMAR
TRANSFER STATION, INC. AND
COAST WASTE MANAGEMENT, INC.
DEPT. DIRECTO^^^'t^^^
MTG. 12/11/12
CONSENTING TO AN AMENDMENT OF
THE SUBLEASE BETWEEN PALOMAR
TRANSFER STATION, INC. AND
COAST WASTE MANAGEMENT, INC.
CITY ATTORNEY
DEPT. UTIL
CONSENTING TO AN AMENDMENT OF
THE SUBLEASE BETWEEN PALOMAR
TRANSFER STATION, INC. AND
COAST WASTE MANAGEMENT, INC. CITY MANAGER ^^g^
RECOMMENDED ACTION:
Adopt Resolution No. 2012-275 consenting to an amendment of the sublease between
Palomar Transfer Station, Inc. ("PTS") and Coast Waste Management, Inc. ("CWM") for a portion of
the Palomar Facility ("Property").
ITEM EXPLANATION:
On February 14, 2012, the City Council of the City of Carlsbad adopted Resolution No. 2012-035
consenting to an amendment of the sublease between PTS and CWM for a portion of the Property.
Subsequently, the County of San Diego ("County") has requested some changes to the sublease and
these changes were implemented and approved by CWM, PTS and the County. All of the changes
were administrative in nature, and staff is recommending approval of the new sublease ("Exhibit 2").
The major changes are as follows:
• Consistency of Terms Used - Terms used throughout the sublease agreement were
changed slightly for consistency purposes (for example. Sublessee was replaced with
CWM, etc.).
• Exhibit C "Countv of San Diego Required Sublease Provisions" - Exhibit C was added
to the sublease as a provision laid out in the Transfer Station Master Lease Agreement
for the Property (dated October 31,1997, on file with the City Clerk's office).
Background
PTS entered into a long term lease with the County of San Diego for the Property in 1997. On May 31,
2000, PTS subleased a portion of the Property to CWM for use as a trucking terminal ("WMI
Sublease"). On June 1, 2002, PTS assigned the long term lease to the City of Carisbad ("City") but
retained its interest in the WMI Sublease. The City currently has an agreement titled "Agreement for
Transfer Station and Disposal Services" ("Agreement", on file with the City Clerk's office) with PTS to
dispose of the City's solid waste at the Property. Currently CWM operates its waste hauling
operations for the City of Carisbad from the subleased portion of the Property.
Section 2.02.E of the Agreement titled "Assignment of the PTS Lease" states that the WMI Sublease
shall not be amended without the prior written consent of the City. In order to meet this requirement,
staff is recommending that the City Council approve the attached resolution ("Exhibit 1") therefore
consenting to an amendment to the sublease.
DEPARTMENT CONTACT: Craig Schmollinger 760-602-7502 craig.schmollinger(g)xarisbadca.qov
FOR CITY CLERKS USE ONLY M COUNCIL ACTION: APPROVED M 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 no fiscal impact.
EXHIBITS:
1. Resolution No. 2012-275
2. Proposed WMI Sublease (Exhibits to the sublease and attachments are on file with the City
Clerk's office)
3. Previously Approved WMI Sublease
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RESOLUTION NO. 2012-275
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, CONSENTING TO AN AMENDMENT
OF THE SUBLEASE AGREEMENT BETWEEN PALOMAR
TRANSFER STATION, INC. AND COAST WASTE
MANAGEMENT, INC. FOR A PORTION OF THE PALOMAR
TRANSFER STATION.
WHEREAS, the City of Carisbad ("City") leases the Palomar Facility to Palomar Transfer
Station, Inc. ("PTS"); and
WHEREAS, PTS has a sublease with Coast Waste Management, Inc. (CWM) for a
portion of the Palomar Facility for use as a trucking terminal ("WMI Sublease"); and
WHEREAS, the City and PTS have an agreement to dispose of solid waste through the
Palomar Facility; and
WHEREAS, under Section 2.02.E of the agreement, the WMI Sublease shall not be
amended without the prior written consent of the City; and
WHEREAS, on February 14, 2012 the City Council of the City of Carlsbad consented to
an amendment of the sublease between PTS and CWM for a portion of the Property; and
WHEREAS, subsequent changes were made to the sublease approved on
February 14, 2012 and changes were administrative in nature; and
WHEREAS, the proposed WMI Sublease was approved by CWM, PTS and the County.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carisbad,
California, as follows:
1. That the above recitations are true and correct.
2. That the City Council hereby provides this written approval for PTS to amend
the WMI Sublease, retroactively effective June 1, 2012 as set forth in "Exhibit 2."
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 11th day of Decennber 2012, by the following vote to wit:
AYES:
NOES:
Council Members Hall, Kulchin, Blackburn, Douglas, Packard.
None.
ABSENT: None.
MATT HALL, Mayor
ATTEST:
(SEAL)
, I "7
SUB-SUBLEASE AND DISPOSAL AGREEMENT
This Sub-Sublease and Disposal Agreement ("Agreement") is made and entered into as
of April 20, 2012, among PALOMAR TRANSFER STATION, INC. ("Palomar") and
ALLIED WASTE INDUSTRIES, INC. and its affiliates ("AiUed"), and COAST WASTE
MANAGEMENT, INC., a Califomia corporation, a Waste Management Company, and its
affiliates (collectively "CWM").
RECITALS
A. The County of San Diego, a political subdivision of the State of Califomia (the
"County"), as lessor, and Palomar, as lessee, entered into that certain Palomar Transfer Station
Lease Agreement dated October 31, 1997 (the "Transfer Station Master Lease") for that
certain real property located in the City of Carisbad, County of San Diego, Califomia identified
as San Diego County Assessor's Parcel Number 97-0085-Al and known as the Palomar Facility
(the "Property"), which consists, among other things, of a solid waste transfer station, office
space, parking and maintenance facilities, all as more particularly described in the Transfer
Station Master Lease, a copy of which Transfer Station Master Lease is attached hereto and
incorporated herein as Exhibit A.
B. Allied and CWM are parties to that certain Purchase Agreement dated
November 5, 1999, as amended from time to time (the "Purchase Agreement"), which provides
for the purchase by Allied of CWM's landfill and a landfill operating agreement in the Yuma,
Arizona area. The execution of this Agreement is a condition to the consummation of the
transactions contemplated by the Purchase Agreement.
C. Palomar assigned all of its rights, title and interests as lessee in, under and to the
Transfer Station Master Lease to the City of Carlsbad, a municipal corporation of the State of
Califomia (the "City") pursuant to that certain Assignment of Lease dated June 1,2002.
D. Palomar, pursuant to the terms of that certain Sublease Agreement for Palomar
Transfer Station dated June 1, 2002 (the "Transfer Station Sublease") between Palomar, as
sublessee, and the City, as sublessor, subleases the Property, a copy of which Transfer Station
Sublease is attached hereto as Exhibit B.
E. Commencing on the Effective Date hereof (as hereinafter defined), Palomar desires to
sublease to CWM, and CWM desires to sublease fi-om Palomar, the portion of the Property
consistmg generally of office space, parking and maintenance facilities for use as a tmcking
temiinal for the collection of solid waste and recyclable materials (the "Sublease Premises").
F. During the Term (as defined in Section 1), CWM desires to deliver Acceptable Waste
(as defined in Section 3.2) collected by it from and in the City of Carlsbad, Califomia to the
transfer station located on the Property (the 'Transfer Station"), and Palomar desires to
transport and dispose of such waste for CWM.
G. Palomar, Allied and CWM entered into that certain Transport and Disposal
Agreement, dated November, 2011.
H. Palomar and Allied have entered into a renewal of that certain agreement entitled
"Agreement for Transfer Station and Disposal Services between the City of Carlsbad and
Palomar Transfer Station, Inc." ("Carlsbad Disposal Agreement") with the City, and CWM has
entered into a renewal of that certain agreement entitled "Contract for the Provision of Solid
Waste Services" ("Carlsbad Collection Agreement") with the City.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and for the covenants and agreements contained in this
Agreement, the parties agree as follows:
1. TERM
Unless sooner terminated in accordance with the terms hereof, this Agreement shall
become effective on the date first written above (the "Effective Date") and shall remain in effect
until May 31, 2022 unless otherwise extended by written agreement of the parties hereto, or their
successors or assigns; provided the Transfer Station Sublease and the Transfer Station Master
Lease are still validly existing (the "Term"), at which time CWM shall vacate the Sublease
Premises in accordance with the terms and conditions of this Agreement. If the Transfer Station
Sublease and the Transfer Station Master Lease are not still validly existing, then CWM shall
vacate the Sublease Premises in accordance with the terms and conditions of this Agreement on
or before May 31,2022. Upon expiration of the Term or as otherwise explicitly provided in this
Agreement, the obligations of Palomar to sublease the Sublease Premises to CWM, the
obligations of CWM to sublease the Sublease Premises from Palomar and the obligations of
CWM and Allied to deliver and accept Acceptable Waste shall terminate; provided, however,
that all other obligations of the parties hereunder shall survive the termination of this Agreement
and continue until the same are fully satisfied or waived.
2. SUBLEASE PROVISION
2.1 Sublease Premises. Palomar hereby subleases to CWM and CWM hereby
subleases from Palomar the Sublease Premises upon the following terms and conditions. This
Agreement is made subject to and is subordinate to all the terms and conditions of the Transfer
Station Master Lease, including the provisions of Exhibit F to the Transfer Station Master Lease
(McClellan-Palomar Airport: The County of San Diego Required Sublease Provisions) (the
"Required Sublease Provisions"). The required provisions of the Required Sublease Provisions
are attached hereto as Exhibit C and made a part of this Agreement by this reference. The
effectiveness of the Transfer Station Master Lease shall be an express and continuing condition
precedent to the effectiveness of this Agreement. The parties further acknowledge that this
Agreement is subject to the County's prior written consent, which consent is attached hereto and
made a part hereof as Exhibit D. Palomar will use its best efforts to obtain the Coimty's consent
on or prior to June 1, 2012. Palomar covenants not to cause any default under the Transfer
Station Sublease that results in the termination of the Transfer Station Sublease or the Transfer
Station Master Lease and not to take any other intentional action to cause the termination of the
Transfer Station Sublease.
2.2 Rent. CWM shall pay to Palomar as rent for the Sublease Premises the sum of
Fifteen Thousand and 00/100 Dollars ($15,000.00) per month, in advance, on the first day of
each month durmg the Term from the Effective Date to May 31, 2012. The base monthly rent,
effective June 1,2012, and continuing for each and every month during the Term thereafter, shall
be the sum of Sbcty Thousand and 00/100 Dollars ($60,000.00) (for an annual rent equal to
Seven Hundred Twenty Thousand and 00/100 Dollars ($720,000.00)) due and payable in
accordance with the terms hereof From and after June 1, 2013, the rent hereunder shall be
subject to a percentage increase only based on the annual increases in collection rates applied by
the City pursuant to the Carlsbad Collection Agreement. However, under no circumstances shall
the rent hereunder be decreased if the rate applied by ttie City pursuant to the Carlsbad
Collection Agreement decreases, rather in that case there shall be no adjustment for the year in
which there was no increase. In the event CWM fails to make payment when due, any amount
remaining unpaid shall bear interest at the lesser of the rate of 1% per month or the highest rate
of interest allowed under Applicable Laws (as defined ui Section 3.3(b)), from such time to the
actual date of payment.
2.3 Taxes and Utilities. Palomar shall maintain all necessary electric, gas and water
and sewer service for the operation of the Property, and shall provide the same to CWM with
respect to the Sublease Premises. CWM shall reimburse Palomar one-half (1/2) of Palomar's
utility costs, payable upon receipt by CWM of a copy of the utility invoice and evidence o
payment by Palomar. Palomar shall pay all property taxes relating to the Property. CWM shall
reimburse Palomar one-half (1/2) of all property taxes paid, except for any new or increased
property taxes assessed solely with respect to property or improvements other than the Sublease
Premises, payable upon receipt of the tax bill and evidence of payment by Palomar. CWM shall
be solely responsible for any personal property taxes imposed with respect to its trade fixtures,
furnishings and equipment located on the Sublease Premises.
2.4 Assignment and Subletting. CWM shall not voluntarily or by operation of law
assign, transfer, sublet, mortgage or otherwise transfer or encumber the Sublease Premises
without Palomar's prior written consent, which shall not be withheld unreasonably; provided
however, that CWM may assign this Agreement to an affiliate of CWM without the consent of
Palomar or Allied.
2.5 Transfer Station Master Lease is Incoroorated. This Agreement is made subject
to and is subordinate to the terms of the Transfer Station Master Lease, including Exhibit F
thereto, which shall govern this Agreement.
2.6 Permitted Uses. CWM may utilize the Sublease Premises for parking of vehicles,
maintenance, office facilities, and ancillary uses related to the operation of a solid waste and
recyclable materials collection tmck terminal (collectively the "Permitted Uses").
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2.7 Covenant of Quiet Enjoyment. Provided that CWM is in compliance with the
terms and conditions of this Agreement, Palomar covenants that it will take no action that will
interfere with CWM's quiet and peaceable enjoyment of the Sublease Premises for the Permitted
Uses.
2.8 Encumbrances. Palomar shall not pledge or encumber this Agreement, or any
right or interest in the Sublease Premises or any of the improvements thereon, in any manner that
would interfere with CWM's quiet and peaceable enjoyment thereof during the Term of this
Agreement, and any pledge or encumbrance of any kuid or nature shall be made expressly
subject to this Agreement and CWM's right of possession of the Sublease Premises during the
Term of this Agreement.
2.9 Improvements. If and to the extent permitted by the terms and conditions and
approval requirements of the Transfer Station Master Lease, which are in addition to the
approval rights of Palomar, CWM shall have the right to make legally permitted improvements
to the Sublease Premises upon the written consent of Palomar, which shall not be withheld
unreasonably nor required in the event of improvements of less than $25,000 in cost.
2.10 Eminent Domain. If all or any portion of the Sublease Premises is taken in fee by
a governmental entity and such taking interferes with the conduct of CWM's Permitted Uses,
CWM shall have the right to terminate this Agreement without penalty upon sixty (60) days'
written notice to Palomar.
3. CWM's OBLIGATIONS
3.1 Exclusivity.
(a) During the Term hereof, CWM shall deliver to Palomar and Palomar shall
accept at the Transfer Station all Acceptable Waste collected by CWM for disposal pursuant to
the Carlsbad Collection Agreement (the "Carlsbad Acceptable Waste"). CWM estimates the
amount of Carisbad Acceptable Waste to be delivered, based on a 5.5-day work week, to be
approximately 350 tons per day. Notwithstanding the above, CWM's obligation to deliver the
Carlsbad Acceptable Waste exclusively to the Transfer Station shall terminate (i) concurrently
with the termination or expiration of the Carlsbad Collection Agreement, however brought about,
or (ii) should the City refuse to approve of the disposal facility selected by Palomar, or exercise
its "flow control" rights to direct the Carlsbad Acceptable Waste to a facility other than the
Transfer Station or to a disposal facility other than a disposal facility selected by Palomar. For
handling, transporting and disposing of such Acceptable Waste, CWM shall pay Palomar the fee
set forth in Section 5.1, subject to adjustment as provided in Section 5. No action by the City or
other governmental entity that prevents or limits the delivery of Carlsbad Acceptable Waste to
the Transfer Station or a disposal facility selected by Palomar shall constitute a breach of this
Agreement by either party, limit the Term, or affect any of the terms and conditions of the
Sublease provided in Section 2.
(b) CWM shall arrange, be responsible for, and bear the costs of delivering
Acceptable Waste to Allied at the Transfer Station, CWM shall ensure that all waste it delivers
to Allied is Acceptable Waste. CWM shall deliver the Acceptable Waste during the Transfer
Station's normal hours of operation.
(c) Allied shall at all times maintain permitted capacity and operate the
Transfer Station in a manner so as to allow the prompt receipt of the Carlsbad Acceptable Waste
when and as delivered by CWM. With respect to all Acceptable Waste delivered by CWM,
Palomar shall operate the Transfer Station in a manner such that the tmck turnaround times shall
be minimized, and in no event exceed fifteen (15) minutes,
(d) CWM shall defend, indemnify and hold harmless Allied with respect to
any notices of violation or other citations related to CWM's occupancy and operation of the
Sublease Premises during the Term, and will take reasonable corrective action in response
thereto prior to the transfer of occupancy to Allied.
3.2 Composition of Waste. As used in this Agreement, "Acceptable Waste" means
all garbage, refiise, mbbish and other materials and substances discarded or rejected as being
spent, useless, worthless, or in excess to the owners at the time of such discard or rejection and
which are normally disposed of, or collected from residential (single family or multi-family),
commercial, industrial, governmental and institutional establishments, and which are acceptable
for disposal at Class 111 landfills in Califomia.
3.3 Definition of Unacceptable Waste. Waste shall be considered "Unacceptable
Waste" if:
(a) it fails to comply with the requirements of Section 3.2;
(b) it can now or hereafter be defined by any applicable federal, state or local
statute, law, ordinance, code, mle, regulation, order, judgment, permit or license relating to the
operation, maintenance and constmction of the Transfer Station or the transportation, receipt,
acceptance or disposal of waste materials ("Applicable Law") as a hazardous waste, a hazardous
substance or hazardous material, or if it is determined by any governmental agency or unit
having or claiming appropriate jurisdiction to be harmful, toxic or dangerous, or otherwise
ineligible for disposal at Allied's disposal facility; provided, however, that Acceptable Waste
may include de minimis amounts of hazardous substances commonly foimd in waste generated
from residences and commercial premises that may be disposed of in Class III landfills in
Califomia;
(c) it is agricultural waste, explosive materials, corrosive materials,
pathological waste, biological waste, offel (entrails, etc., of butchered animals), radioactive
materials, ashes, foundry sand, mining waste, sewage sludge, cesspool and other human waste,
human and animal remains, motor vehicles, major motor vehicle parts (including transmissions,
rear ends, springs, fenders, batteries, battery cables, exhaust systems and gasoline tanks),
agricultural and farm machinery and equipment and major parts thereof, marine vessels and
major parts thereof, any other large type of machinery or equipment, including thick walled or
solid metallic objects such as castings, forgings, gas cyluiders, 55 gallon dmms, asbestos
insulation, closed metal containers, barrels, buckets, or large motors, solid blocks of mbber or
plastic, large rolls of carpet or fencing over 12 inches in diameter, steel or nylon rope, chains,
cables or slings, logs larger than usually accepted according to Allied's normal operating
procedure at its disposal fecilities, tree stumps, more than an incidental amount of tires, white
goods such as refrigerators, stoves and washing machines that have not been properly evacuated,
liquid waste, including liquid chemical wastes, sewage and other highly diluted water-carried
materials or substances and those in gaseous form, or special nuclear or by-product materials
within the meaning of the Atomic Energy Act of 1954, as amended;
(d) it is constmction materials and/or demolition debris which is not permitted
under then Applicable Law to be disposed of at Class UI landfills in Califomia; or
(e) it is any other material which may present a substantial endangerment to
public healtii or safety, would cause applicable air quality or water effluent standards to be
violated by the normal operation of Allied's disposal facilities or because of its size, durability or
composition cannot be disposed of at Allied's disposal facilities or has a reasonable possibility of
otherwise adversely affecting the operation or useful life of Allied's disposal facilities outside
the normal usage expected for such facilities.
3.4 Rejection of Waste. This Agreement creates no obligation on Palomar or Allied
to accept or dispose of any Unacceptable Waste. Palomar or Allied shall have the right in its
reasonable discretion to reject delivery of any waste offered for acceptance by CWM that does
not constitute Acceptable Waste. Palomar or Allied may reject, in whole or in part, any load
containing Unacceptable Waste. CWM's delivery vehicle in question shall immediately remove
any Unacceptable Waste rejected by Palomar or Allied and transport it to another lawful place of
disposition.
3.5 Delivery Vehicles. Acceptable Waste shall be delivered by CWM, at its expense,
to Allied at the Transfer Station in enclosed container vehicles or enclosed compactor vehicles
which shall include, but not be limited to, properly covered roll-offs, complying with all
Applicable Laws. Such vehicles shall be enclosed and self-unloading and shall comply with the
identification procedures at the Transfer Station.
3.6 Weighing of Acceptable Waste. Allied shall operate and maintain, or cause to be
operated and maintained, a scale facility at the Transfer Station. Upon arrival of a CWM
delivery vehicle at a Transfer Station, Allied shall weigh each load of Acceptable Waste
delivered to Allied for transportation and disposal. Allied shall keep daily records of the weight
of each load of Acceptable Waste, and shall deliver a report of weights to CWM by electronic or
other approved means prior to the close of business on the day the loads are delivered. CWM
reserves the right to use its own or other scales to verify the weight of each load, and to dispute
the weight of, and payment of fees on, any load whose weight is materially different from that
indicated on Allied's report.
3.7 Access to Sublease Premises. Allied shall grant or cause to be granted to CWM,
its agents and employees, during the Term of this Agreement, access to the Transfer Station for
purposes of fulfilling its obligations under this Agreement.
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3.8 Permits and Licenses. CWM shall at all times maintain in full force and effect all
existing permits, licenses and approvals necessary to deliver waste to Allied. CWM shall collect
and deliver waste in compliance with all Applicable Law.
4. PALOMAR'S AND ALLIED'S OBLIGATIONS
4.1 Transfer Station Premises. Allied or its designee shall be responsible for the
operation and maintenance of all improvements at the Transfer Station. Allied accepts the
transfer of the right to occupy the Transfer Station.
4.2 Transportation. Allied shall provide suitable transportation equipment to
transport Acceptable Waste tendered by CWM to Allied's disposal sites. Subject to Sections 3.1
and 3,4, Palomar agrees to accept all Acceptable Waste tendered to it by CWM under this
Agreement and to transport such Acceptable Waste to a permitted landfill capable of accepting
the Acceptable Waste.
4.3 Disposal. Subject to Sections 3.1 and 3.4, Allied agrees to dispose of all
Acceptable Waste tendered by CWM at a permitted landfill capable of accepting the Acceptable
Waste. Allied shall be solely responsible for determining the appropriate disposal sites, times,
techniques and methods for disposal of the Acceptable Waste; except that Allied shall comply
with any orders or directives from a local governmental entity regarding the disposal site utilized
made pursuant to contract or through the exercise of that entity's "flow control" powers.
4.4 Permits and Licenses. Palomar and Allied shall at all times maintain in full force
and effect all existing permits, licenses and approvals necessary to operate the Transfer Station
and transport and dispose of Acceptable Waste delivered to Palomar at the Transfer Station.
Palomar and Allied shall operate the Transfer Station and transport and dispose of Acceptable
Waste in material compliance with all Applicable Law.
5. COMPENSATION FOR DISPOSAL SERVICES
5.1 Fees. For the acceptance, transportation and disposal by Palomar and Allied o
Acceptable Waste generated in or collected in the City of Carlsbad and delivered to the Transfer
Station pursuant to Section 3.1, CWM will pay Palomar the per ton fee established in the
Carlsbad Disposal Agreement (the "Disposal Fee"), as such Disposal Fee is adjusted from time
to time pursuant to the terms of the Carlsbad Disposal Agreement, as it may be amended from
time to time.
5.2 Taxes. Subject to Section 5.3, CWM shall reimburse Allied for any new or
increased taxes, tariffs, fees, surcharges or other charges imposed by legislation or regulations
enacted or promulgated after the date of this Agreement (collectively, "Taxes") and levied upon
the transportation and disposal of the Acceptable Waste upon 90 days written notice of such
change in legislation and upon submission by Palomar or Allied of evidence that such Taxes
have been levied or paid; provided, however, that CWM shall have no obligation to reimburse
Allied with respect to any increase in host fees on Carlsbad Acceptable Waste. Any sales, use,
or other taxes imposed by any federal, state or local law on any goods and/or services required to
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be procured or furnished by a party under this Agreement shall be duly paid by such party. Each
party shall pay, at its own expense, all payroll taxes or contributions, unemployment insurance or
other similar taxes, assessments or charges, as now or hereinafter may be in effect which are to
be paid relating to any employee or agent of the party. Notwithstanding the foregoing, the price
adjustments provided for in this Section 5.2 shall not apply to the extent such Taxes are included
in and paid through the Disposal Fee.
5.3 Exceptions to Adjustments, Notwithstanding the provisions of Section 5.2, m the
event CWM is unable to pass through any rate adjustment on Carlsbad Acceptable Waste related
to a change in Applicable Laws or new or increased taxes or fees to the City pursuant to the
Carlsbad Collection Agreement, and provided that CWM has made a good faitii effort to obtain
such pass through, the rate adjustment requested or imposed by Palomar or Allied shall be of no
further force and effect and the rate for services shall be the same as if such adjustment had not
been requested or imposed.
5.4 Payment. Palomar shall transmit an itemized invoice to CWM of all disposal
charges hereunder on a monthly basis. CWM shall pay all invoices within thirty (30) days after
receipt. In the event CWM fails to make payment when due, any amount remaining unpaid shall
bear interest at a rate of the lesser of 1% per month or the highest rate of interest allowed under
Applicable Laws from such time to the actual date of payment.
5.5 No Rights of Set-off, The obligations of CWM to make payments under this
Agreement shall not be subject to any set-off abatement, counterclaim, existence of a dispute or
any reason, known or unknown, foreseeable or unforeseeable, which might otherwise constitute
a legal or equitable defense or discharge of the liabilities of CWM hereunder or limit recourse to
CWM.
6. TITLE AND RISK OF LOSS
6.1 Acceptable Waste, In the case of Acceptable Waste delivered to Palomar at the
Transfer Station, all title, risk of loss and all other incidents of ownership of Acceptable Waste
shall transfer from CWM and vest in Palomar and Allied upon the Acceptable Waste being
accepted by Palomar at the Transfer Station.
6.2 Unacceptable Waste. Titie, risk of loss and all other incidents of ownership of
Unacceptable Waste and any rejected Acceptable Waste tendered by CWM for disposal at the
Transfer Station shall at no time be transferred to Palomar or Allied, and shall at all times remain
in CWM.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1 Palomar's and Allied's Representations and Warranties. Palomar and Allied
represent and warrant to CWM that:
(a) it has full power and authority to execute and deliver this Agreement and
to perform its obligations hereunder;
(b) the execution, delivery and performance of this Agreement have been duly
authorized by all necessary action on the part of Palomar and Allied;
(c) it is, or will be prior to providing service under this Agreement, in material
compliance with all Applicable Laws affecting the services to be provided by it, and it will
perform such services using industry accepted practices; and
(d) it will observe and comply, in all material respects, with all Applicable
Laws.
7.2 CWM's Representations and Warranties. CWM represents and warrants to
Palomar and Allied that:
(a) it has full power and authority to execute and deliver this Agreement and
to perform its obligations hereunder;
(b) the execution, delivery and performance of this Agreement have been duly
authorized by all necessary action on the part of CWM;
(c) it is, or will be prior to performing its obligations under this Agreement, in
material compliance with all Applicable Laws affecting the services to be provided by it, and it
will perform such services using industry accepted practices;
(d) it will observe and comply, in all material respects, with all Applicable
Laws;
(e) is under no restraint which prohibits the transfer of possession or titie to
such Acceptable Waste to Palomar or Allied.
7.3 Additional Covenants of CWM. CWM shall promptly report to Palomar any
information that the Acceptable Waste tendered to Palomar, or some constituents or components
thereof, present or may present a threat to human health or the environment which was not
disclosed prior to loading of the Acceptable Waste on Palomar trailers or containers for
transportation and disposal.
8. INDEMNIFICATION
8.1 Indemnification by CWM. CWM agrees to indemnify and hold harmless Palomar
and Allied and its subsidiaries and affiliates, and their respective directors, officers, agents and
employees (the "Allied Indemnified Parties") from and against any and all liabilities, losses,
damages, costs, expenses and disbursements, including reasonable legal fees and expenses,
arising out of any claun or loss of or damage to property and injuries to or death of any persons,
including any Allied Indenmified Parties, caused (i) by the breach of any term, covenant,
agreement or undertaking herein of CWM (other than a breach caused by Palomar's or Allied's
breach of its obligations hereunder) or (ii) by the negligence or willful misconduct of CWM.
8,2 Indenmification bv Palomar and Allied. Palomar and Allied agree to indemnify
and hold harmless CWM and its subsidiaries and affiliates, and their respective directors,
officers, agents and employees (the "CWM Indemnified Parties") from and against any and all
liabilities, losses, damages, costs, expenses and disbursements, including reasonable legal fees
and expenses, arising out of any claim or loss of or damage to property and injuries to or death of
any persons, including any CWM Indenmified Parties, caused (i) by the breach of any term,
covenant, agreement or undertaking herein of Palomar or Allied (other than a breach caused by
CWM's breach of its obligations hereunder) or (ii) by the negligence or willful misconduct of
Palomar or Allied.
9. TERMINATION AND REMEDIES
9.1 Default.
(a) Events of Default of Palomar or Allied. Each of the following shall be an
event of default by Palomar or Allied under this Agreement:
(i) Palomar or Allied fail to observe and perform any material term,
covenant or agreement contained in this Agreement on its part to be performed and continues
such failure for a period of thirty (30) days after written notice to Palomar or Allied specifying
the nature of such failure and requesting that it be remedied; or
(ii) Palomar or Allied make a general assignment for the benefit of
creditors, files a petition in bankmptcy, is adjudicated insolvent or bankmpt, petitions or applies
to any tribunal for any custodian, receiver or tmstee for it or any substantial part of its property,
commences any proceeding relating to it under bankmptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any jurisdiction whether now or
hereinafter in effect, or if there shall have been filed any such proceeding, in which an order for
relief is entered or which remains undismissed for a period of sixty (60) days or more or if by
any act indicates its consent to, approval of or acquiescence in any such petition, application or
proceeding or order for relief or the appointment of any custodian, receiver of or any tmstee for
it or any substantial part of its property or suffers such custodianship, receivership or tmsteeship
to continue undismissed for a period of sixfy (60) days or more.
(b) Events of Default CWM. Each of the following shall be an event of
default by CWM under this Agreement:
(i) CWM fails to pay any amounts, including without limitation any
rent or Disposal Fee, which become due hereunder, within thirty (30) days notice of delinquency
from Palomar or Allied;
(ii) CWM fails to observe and perform any other material term,
covenant or agreement contained in this Agreement on its part to be performed and continues
such failure for a period of thirty (30) days after written notice to CWM specifying the nature of
such failure and requesting that it be remedied; or
10
(iii) CWM makes a general assignment for the benefit of creditors, files
a petition in bankmptcy, is adjudicated insolvent or bankmpt, petitions or applies to any tribunal
for any custodian, receiver or tmstee for it or any substantial part of its property, commences any
proceedings relating to it under bankmptcy, reorganization, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction whether now or hereinafter in effect,
or if there shall have been filed any such proceeding, in which an order for relief is entered or
which remains undismissed for a period of sixty (60) days or more or if by any act indicates its
consent to, approval of or acquiescence in any such petition, application or proceeding or order
for relief or the appointment of any custodian, receiver of or any tmstee for it or any substantial
part of its property or suffers such custodianship, receivership or tmsteeship to continue
undismissed for a period of sixty (60) days or more.
(c) Remedies on Default. Whenever any event of default shall have occurred
and be continuing, the nondefaulting party shall have the following rights and remedies:
(i) Upon thirty (30) days' written notice to Palomar or Allied if
Palomar or Allied is then in default, CWM shall have the option to terminate this Agreement
unless the event of default is cured prior to the expiration of such 30-day period or unless during
such period Palomar or Allied has taken remedial steps the effect of which would be to enable
Palomar or Allied to cure such event of default within a reasonable period of time;
(ii) Upon thirty (30) days' written notice to CWM, if CWM is then in
default, Palomar or Allied shall have the option to terminate this Agreement unless the event of
default is cured prior to the expiration of such 30-day period or unless during such period CWM
has taken remedial steps the effect of which would be to enable CWM to cure such event of
default within a reasonable period to time; and
(iii) In the event Palomar or Allied is in default of its obligation to
handle, transport or dispose of Acceptable Waste delivered by CWM to the Transfer Station
pursuant to Sections 3,1(c) and 4.3, except where arising as a result of an event of Force
Majeure, and following notice and opportunity to cure of not more tiian one (1) business day,
CWM, in addition to any other rights and remedies provided herein, shall have the right to
deliver Acceptable Waste dkectly to a disposal facility selected by CWM and to have reimbursed
from Palomar or Allied any and all additional handling, transportation, or disposal costs.
10. MISCELLANEOUS
10.1 Force Majeure. Except for CWM's obligation to pay for rent and services
rendered, any party's obligations under this Agreement may be suspended by a party in the event
of: (i) an occurrence beyond the reasonable control of tiiat party which adversely affects the
ability of the party to perform its obligations hereunder or to comply with the requirements of
any governmental order, permit or other approval; (ii) acts of God, landslides, lightning,
earthquakes, hurricanes, tomadoes, severe weather, fires, explosions, floods, acts of public
enemy, war, blockades, insurrections, riots or civil disturbances; or (iii) orders and/or judgments
of any federal, state or local court, administrative agency or governmental body, or other entity,
11
if not the result of willful or negligent action of the party relying thereon or failure to act in
accordance with tiiis Agreement (provided, however, that tiie contesting in good faith by such
party of any such order and/or judgment shall not constitute or be constmed to constitute a
willful or negligent action or inaction of such party),
10.2 No Opposition bv CWM. CWM shall not take any action, or omit to take any
action, that would oppose Allied's efforts to re-negotiate the City of Carlsbad host fees, to
repermit the Transfer Station or expand the conditional use permit relating thereto; provided,
however, that CWM shall have all rights under Applicable Laws to comment on any application.
Environmental Impact Report, or other related filing.
10.3 Assignment: Binding Effect. Neither party shall assign tiiis Agreement without
the consent of the other, which shall not be withheld unreasonably nor required in the event of an
assignment to an affiliate; provided, however, that no assignment by Palomar or Allied shall
interfere with CWM's use of the subleased Sublease Premises during tiie Term of tiiis
Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties
and their respective successors and assigns.
10.4 Entire Agreement, This Agreement (including tiie Transfer Station Master Lease)
supersedes all prior agreements, written or oral, with respect to the subject matter of this
Agreement, This Agreement may be changed only by a written instmment signed by both
parties hereto.
10.5 Severability. In the event that any one or more of the provisions contained in this
Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement,
and all other provisions shall remain in full force and effect,
10.6 Waiver. No delay or omission by a party in exercising any right under this
Agreement will operate as a waiver of that or any other right. A waiver or consent given by a
party on any occasion is effective only in that instance and will not be constmed as a bar to or
waiver of any right on any other occasion.
10.7 Notice. Any notice, request, information or other document to be given hereunder
to one of the parties by the otiier party shall be in writing and shall be given by hand delivery,
facsimile, certified or registered U.S. mail or a private courier service which provides evidence
of receipt as part of the service, as follows:
If to Palomar/AUied: Palomar Transfer Station, Inc.
Allied Waste Services San Diego
8364 Claremont Mesa Boulevard
San Diego, CA 92111
Attn: James T. Ambroso, Vice President
12
Witii a copy to: Republic Services, Inc.
18500 North Allied Way
Phoenix, AZ 85054
Attn: General Counsel
If to CWM: Coast Waste Management, Inc.
5960 El Camino Real
Carlsbad, CA 92108-0947
Attn: District Manager
With a copy to: Waste Management - Westem Group
7025 N. Scottsdale Road
Suite 200
Scottsdale, AZ 85253
Attention: Group Legal Counsel
10.8 Goveming Law. This Agreement shall be govemed by and constmed in
accordance with the laws of the State of Califomia.
10.9 Insurance.
(a) Both parties agree to fumish to the other, upon execution, certificates
attesting to the existence of the following insurance and to maintain the following insurance
during the term of this Agreement:
Coverages Limits of Liability
Workmen's Compensation Statutory
Employer's Liability $1,000,000 Each Occurrence
General Liability, Including $5,000,000 Combined Single Limit,
Bodily Injury, Property Damage Each Occurrence
And Contractual Liability
Automobile Liability, Including $5,000,000 Combined Single Limit,
Bodily Injury and Property Damage Each Occurrence
(b) Each such certificate shall contain a statement of the insurer's obligation
to notify the party to whom the certificate is addressed at least thirty (30) days prior to
cancellation of any policy covered thereunder. The policy shall also contain a waiver of
subrogation.
13
II
IN WITNESS WHEREOF, tiie parties have executed fliis Agreement as of tiie day and
year first above written.
ALLIED:
Allied Waste Industri^Inc.
Its Vice President
PALOMAR:
Palomar Transfer Statior
es T. Ambroso
Its Vice President
CWM:
Coast Waste Management, Inc.
17I33IM rOOC
14
EXHIBIT A
TRANSFER STATION MASTER LEASE
[See attached]
PALOMAJl TRANSFER STATIOH ZiSA5B AGR£0(ENT
MCCLELLAN-PALOMAR AZKPORT
CARLSBAD, CALIPORKIX
EXHIBIT C
LESSORS T8E CODMTT OF SAK DIBOO
LESSEE t PALOMAR TRANSFER STATIOV, XNC.
PARCELS: APH#. 97-0085-XI
A///e J
COUNTY CONTRACT NO. ^/^^ ^ J
LA3.7W7I.V5
^0
INDEX
ARTICLE 1 - SUMMARY OF BASIC LEASE • PROVISIONS . i
1.1 Lessor *
1.2 Lessee ! J"
1.3 Premises and Property ....!.!!.'!,*''"* 2
1.4 The County's and Lessee's Lease Administrators' * ' 2
1.5 Term ' * *
1.6 Effective Date [ ' 5
1.7 Intentionally Omitted ?
1.8 Rent 2
1.9 General Description of Lessee's Use of Premises ' 5
1.10 Definitions , i
1.11 Exhibits To Lease t
1.12 Construction of Lease Provisions 3
ARTICLE 2 - LEASE OP PREMISES 4
2.1 Description . . • ?
2.2 Mineral Rights ....!!!!!.*.'' 4
2.3 Reservations to the County/Easement Reservations* ' 4
2.4 Lease Subordinate to Conditioxis and Restrictions
Iii5>osed by Public Agencies on Airport Operations . 4
ARTICLE 3 - TERM OF LEASE AND FIRST RIOKS. TO .ACQUIRE THB^.
PREMISES 5
3.1 Term; Definitions 5
3.2 Surrender of the Premises; Quitclaim of Lessee^sW Interest Upon Termination g
3.3 Early Termination by the County ' ' c
3.4 First Right to Acquire the Premises [ [ g
ARTICLE 4 - RENT -
4.1 Prepaid Rent 7
4.2 Base Rent for Option Periods 7
4.3 Payments of Monthly Base Rent 7
4.4 Rent Adjustment at Commencement of Each Option
Period 7
4.5 cost of Living Adjustment ("COLA") to the Base*
Rent Payable Monthly During Option Periods . , a
4.6 Consiimer Price Index . * * 9
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 , . . !nn
6.3 Conqpliance with Laws n
6.4 Substance Abuse 12
6.5 Control of Premises \2.2 U5-7W7I.VJ
ARTICLE 7 - UTILITIES 12
ARTICLE 8 - MECHANICS' LIENS 13
8.1 Mechanics' Liens 13
8.2 Contest of Lien 13
8.3 Right to Cure 13
8.4 Notice of Lien 13
8.5 Notice of Nonresponsibility 13
ARTICLE 9 . - SECURITY 14
ARTICLE 10 - IMPROVEMENTS; PERSONAL PROPERTY;
FIXTURES; MINOR ALTERATIONS 14
10.1 improvements 14
10.2 Construction Reguirements « 14
10.3 The County's Costs; Indemnity 15
10.4 Personal Property 15
10.5 Fixtures 15
10.6 Signs and Lighting . ig
10.7 Minor Alterations 16
ARTICLE 11 - TAXES, ASSESSMENTS AND FEES 16
11.1 Responsibility for Payment of Taxes and
Assessments ..... 16
11.2 Definition of "Taxes" 16
11.3 Creation of Possessory Interest 17
ARTICLE 12 - REPAIRS; MAINTENANCE 17
12.1 Acceptance of Premises 17
12.2 Lessee's Repair and Maintenance Obligations . . . . 17
12.3 Lessee's Failure to Maintain 18
12.4 Right to Enter 18
12.5 County Not Obligated to Repair or Maintain;
Lessee's Waiver of Califomia Civil Code Section
1942 18
ARTICLE 13 - INDEMNITY AND INSURANCE 19
13.1 Indemnity 19
13.2 Insurance 19
13.3 indemnity 19
ARTICLE 14 - CONTAMINANTS 20
14.1 Environmental Laws - Definition 20
14.2 Contaminants, Leachate and Landfill Gas -
Definitions 20
14.3 Lessee's Representations and Warranties 20
14.4 Indemnifications Regarding Contaminants, Leachate
and Landfill Gas 22
14.5 Remedies Cumulative; Survival 22
14.6 Inspection 22
ARTICLE IS - ASSIGNMENT, SUBLEASING AND ENCUMBRANCING .... 22
ii
ARTICLE 16 DEFAULTS BY LESSEE; THE COUNTY'S REMEDIES .... 28
16.1 Events of Default 28
16.2 Notices [ 29
16.3 The County's Rights and Remedies 29
16.4 The County's Damages 30
16.5 Fixtures and Personal Property .* 31
16.6 The County's Security Interest 32
16.7 Lessee's Waiver . 32
16.8 Interest ! 32
ARTICLE 17 - DEFAULTS BY THE COUNTY; REMEDIES 32
ARTICLE 18 - ABANDONMENT 3.3
M'
ARTICLE 19 - BANKRUPTCY : . , 33
19.1 Right of Termination ti- 33
19.2 Request for Information , '. ^ 34
ARTICLE 20 - DAMAGE OR DESTRUCTION 34
ARTICLE 21 - EMINENT DOMAIN 35
ARTICLE 22 - SALE OR MORTGAGE BY THE COUNTY 36
22.1 Sale or Mortgage 36
ARTICLE 23 - SUBORDINATION; ATTORNMlMr: 36
23.1 Subordination 36
23.2 Attornment 36
ARTICLE 24 - COUNTY'S RIGHT OF ACCESS 36
24.1 Access 36
24.2 Lessee Waivers Regarding County Access 37
ARTICLE 25 - QUIET ENJOYMENT 37
ARTICLE 26 - HOLDING OVER 37
ARTICLE 27 - NOTICES 38
27.1 Notices 39
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
iAi-msTi\.yn iii auitm
ARTICLE 32 - GENERAL PROVISIONS 40
32.1 Authority 40
32.2 Brokers 40
32.3 Captions 40
32.4 The County Approval 40
32.5 Cumulative'Remedies 41
32.6 Entire Agreement 41
32.7 Estoppel Certificate 41
32.8 Exhibits 41
32.9 Force Majeure 41
32.10 Goveming Law 42
32.11 Interpretation 42
32.12 Joint and Several Liab.ility i* • •
32.13 Lessee's Lease Administration , . . 42
32.14 Liquidated Damages 42
32.15 Modification i. . .. 42
32.16 Partial Invalidity . .1 . '.| 42
32.17 Payments 43
32.18 Successors & Assigns 43
32.19 Time of Essence '. . 43
32.20 Waiver 43
EXHIBIT A: DESCRIPTION AND PLAT OF THE PREMISES
EXHIBIT B: FAA REQUIREMENTS
EXHIBIT C: 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(l) : Coiqprehensive General Liability Insurance
A(2}: Comnercial General Liability Insurance
A(3): Required Liability Policy Coverage
A(4) : Additional Insured Endorsement
A(5) : Primary Insurance Endorsement
A<6): Form of Liability Insurance Policies
B: All Risk Fire Insurance
B(l): Deductible
B(2): Rental Income Insurance
B(3): Loss Payee
B(4}: Proceeds of Insurance
C: Comprehensive Automobile/Aircraft /Watercraft
Liability Insurance
D: Statutory Workers' Compensation and Enqployer's
Liability Insurance
E: General Provisions
E(l): Certificates of Insurance
E(2): Claims Made Coverage
l>J.7Vni.V2 iv
E(3}: Failure to Obtain or Maintain Insurance; the
County's Remedies
E(4); No Limitations of Obligations
B(S): Notice of Cancellation or Change of Coverage
B(6): Qualifying Insurers
E(7): Review of Coverage
BCe): Self*Insurance
£(9): Sublessee's Insurance
E(IO): Waiver of Subrogation
EXHIBIT F: THE COUNTY OF SAN DIEGO REQUIRED SUBLEASE PROVISIONS
PALOMAR TRANSFER STATION LEASE AGRISEKENT
THIS PALOMAR TRANSFER STATION LEASE AGREEMENT ("Lease") is
made and entered ^ into. 9^j9tCtiv as of October 31, 199T; *y and
between the Of- SAN DZEQO,' a political gn^H4 «jjMrjrfh'*
State of California (the "County"), and the FAiXN^-TipHraT
STATiOIIV" IMCaS^a Califomia corporation ("Lessee").
IN CONSIDERATION OF TBS RENTS AND COVENANTS set forth in
this Lease, the County hereby leases to Lessee, and Lessee hereby
leases from the County, the Premises described in Article 1
(SUMMARY OF BASIC LEASE PROVISIONS) below, upon the following
terms and conditions:
ARTICLE 1 '
SUMMARY OF BASIC LEASE PROVISIONS
1.1 lififiJUC: THE COUNTY OF SAN DIEGO, a political'
subdivision of the State of Califomia
Address for notice:
Director
Department of General Services
Building 2
5555 Overland Avenue
San Diego, Califomia 92123
with a copy to:
Assistant Deputy Director - Aviation
1960 Joe Crosson Drive
El Cajon, Califomia 92020
1.2 Xtfifljlfili: Palomar Transfer Station, Inc,
Address for notice: 8364 Clairmont Mesa Boulevard
San Diego. Califomia 92111
Attention: Mr. Jim Ambroso
with a copy to:
Allied Waste Industries, Inc.
15880 N. Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
Attention: Jo Lynn White, Esq
1-3 Premises and Prepnyty The Premises means that
approximately 10.697 acres described on Exhibit A (DESCRIPTION
AND PLAT OF PREMISES) attached hereto and by this reference
incorporated in this Lease. The term "Property", as used herein,
includes the Premises, all buildings and in^rovements to the
Premises, the parking lots and any parking structures appurtenant
to the buildings, and such other facilities, structures and
iirprovements located thereon.
1.4 The County's and Lessee^s Lease Kdminimtr^i^c^^^. This
Lease shall be administered on behalf of the County by the
Director, Department of General Semrices, The County of San
Diego, or by such person's duly-authorized designee referred to
collectively in this Lease as "The County's Lease '
Administrator"), and on behalf of Lessee by Mr. Jim Ambroso, or
by such other per$on as may be designated in writing by tiessee
referred to in this Lease as "Lessee's Lease Administrator").
, iwai. - The term of this Lease shall be .^Mj^nnMLi i
yeazflBlthie •Initial Term"), commencing on the Effective Date and
ending on the twenty-fifth (2Sth) year anniversary of the '
Effective Date, as the same may be extended pursuant to Section
3.1, "Teza; Definitions".
1.6 EfftCtiYt P»tt: See Section 3.1, "Tezai Definitions".
1.7 iBtcntiweXlY Offittid.
1.8 Reat: The dnffiBBI^^
Three Million Eighty^Six Thousand Dollari^^K|^j9l&P0C^ (the
"Prepaid Rent"), which amount will be prepaid Hy Lessee to the«
County at Closing (as defined in the Purchase Agreement (as
defined below)), pursuant to the terms thereof. If Lessee elects
to extend the term pursuant to Section 3.1« "Terni 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 Commencement of Each Option Period" and
Section 4.5, "Cost of Living Adjustments ("COLA") t^o the Base
Monthly Rent During Option Periods" shall be payable on the first
calendar day of each month.
1.9 General Description of Laaace'a Use of Prmm±»m^.
Lessee shall use the Premises solely for the uses specified in
this Lease, generallv described as the office operatioxis of a '
solid :wa[iti^jgSi33|g^^ a recyclinafacilityr'anira
fai^lFitiei^'f'^'^lpSaWiS^^
trash. ' "
1.10 Definitions! As used in this Lease, the following
terms shall have the meanings attached to them in this Section
unless otherwise apparent from their context:
LA3.7»S77l.Va 2 ot/WTt
a. "Airport* means McClellan-Palomar Airport,
Carlsbad, Califomia.
b. "Assistant Deputy Director - Aviation" means the
Assistant Deputy Director - Aviation, of the
Department of Public Works, the County of San
Diego, or upon written notice to Lessee, such
other person as shall be designated from time-to-
time by the Board.
c. "Board" means the Board of Supervisors of the
County of San Diego.
d. "FAA" means the Federal Aviation Administraytion.
e. "Standards" means the McClellan-Palomar Airport
Industrial Areas Development Standards and (the'.
McClellan-Palomar Airport Industrial and Aviation
Areas Performance Standards attached as Exhibit C
and Exhibit-D hereto.
f. "ALP" means the FAA-approved Airport Layout plan
for McClellan-Palomar Airport.
1.11 ||!«hibits To Lease; The following drawings and special
provisions are attached hereto as exhibits and made a part of
this Lease:
p^HjBTT A - Description and Plat of the Premises.
EXFTB^T B - FAA Requirements.
f:;XT^TBiT _C - McClellan-Palomar Airport Industrial Areas
Development Standards.
BYHTBTT n - McClellan-Palomar Airport Industrial and
Aviation Areas Performance Standards.
l?XH;rBiT E • Insurance Requirements.
jB|y^jpiT P - The County of San Diego Required Sublease
Provisions
1.12 c^'^atruetion ef Lease Provlsiong; The foregoing
provisions of this Article summarize for convenience only certain
kev terms of the Lease delineated more fully in the Articles and
Sections referenced in this Article. In the event of a conflict
between the provisions of this Article and the balance of the
Lease, the latter shall control.
LA3,WT7I.V1 ^
ARTICLE 2
LEASE OF PREMISES
2.1 Ptgffiriptioa. Subject to Article 5 (CONDITIONS
PRECEDENT TO EFFECTIVENESS OF LEASE), the County hereby leases to
Lessee and Lessee hereby leases from the County, for the rent and
upon the covenants and conditions set forth in this Lease, the
Premises described in Section 1.3, "Premises and Property" above,
2.2 MAPffTtt Riqbtg. Notwithstanding any provision of this
Lease to the contrary, the County hereby expressly reserves all
rights, title and interest in.and to any and all gas, oil,
mineral and water deposits located upon or beneath the surface of
the Premises. The County shall have the right to enter the
Premises at any time during the Term for the purpose of ooeratina
or maintaining such drilling or other installations as may be
necessary or desirable for the development of any such qas oil
mineral or water deposits. 3 # »
2.3 Restrvations to the Coimt^Y/?*
Lessee accepts the Premises subject to any and all existing
easements and encumbrances. The County reserves the right to
establish, to grant or to use easements or rights-of-way over
under, along and across the Premises for access, underground
sewers, utilities, thoroughfares or such other facilities as it
deems necessary for public health, convenience and welfare,
whether or not such facilities directly or indirectly benefit the
Premises, and to enter the Premises for any such purpose;
provided, however, any such grant of rights by the County shall
require that the Premises be restored to their preexisting
condition; and, prgvjdftdi further, however, that such grant does
not materially interfere with Lessee's continued operation of the
Premises.
2.4 t^yse gy^rdinate to Conditions and aafitrict:^5>^g
Imposed by gwlic AgeacAes on Airport operations- This Lease
shall be subordinate and subject to the terms, conditions,
restrictions and other provisions of any existing or future
permit, lease and agreement between the County and any federal,
state or local agency goveming the County's control, operation
or maintenance of the Airport, or affecting the expenditure of
federal funds for the Airport. Lessee shall be bound by all such
terms and conditions, and shall, whenever the County may so
demand, execute, ac)cnowledge or consent to any instrument
evidencing such terms, conditions, restrictions or provisions.
Without limiting the generality of the foregoing, this Lease and
Lessee's occupancy of the Premises are expressly made subordinate
and subject to the terms, conditions, restrictions and other
provisions of those requirements of the Federal Aviation
Administration specifically set forth in Exhibit a and Lessee
shall be bound by all such requirements.
LA3-7«»5T7I.Va 4
ARTICLE 3
TEK^ OF LEASE AND FIRST RIGHT TO ACQUIRE THE PREMISES
3.1 Tera? PeXiaitioag.
a. Subject to Article 5 (CONDITIONS PRECEDENT TO
EFFECTIVENESS OF LEASE), this Lease shall be effective as of the
"Effective Date" as defined below and the term ("Teza") of this
Lease shall commence on the "Effective Date" and shall continue
thereafter for the period specified in Article 1 (SUMMARY OF
BASIC LEASE PROVISIONS), unless sooner terminated as provided in
this Lease. As used in this Lease, the "EffeetlTe I>ete" means
thirty (30) business days (or upon such'e¥fi^F dier <rmay be
mutually agreed upon) following the date on which the latejr ot
the fbllowing occur^^'tcoll^ctively, thvl^CarXsbi^
Conditioas*^!':;. (tTrthe expiration or eariief'^ tezMnaiElcm of that
certaia Indu8tri>l Lease Agreement (Airports) dated as of October
21, 1997, by and 'feetween the County and the; Cit^ 6f Ciurlsbadi. a^
(2) the surrender and vacatid;^, of the iPremises by"the City df
Carlsbad lihd'Cbilit' Wiisee Ma^^ Inc/ within fifteen (15)
business days following the Effective Date, the County and Lessee
shall confirm the actual date of the Effective Date in writing.
Except as otherwise specifically stated in this Lease or in any
subsequent amendments hereof, the terms and conditions of this
Lease shall remain in effect following any extension, renewal or
holdover of the original Tem.
b.
have fourteen
Subject to the terms of this Section,
(14) successive options (each, an *Opti
extend*thr'T€£«"by ifive (5) yiaft'per Op^ (each, an "Option
Period") ; provided. hfiHfiEfiXi that in no event shall the Term
exceed ninety-five (95) years in the aggregate. An Option shall
be exercisable by Lessee only if Lessee (i) ^^M^WrUiiP'daWr'oni^
which Lessee exercises the Option and as of the cooinencement date
of the Option Period related t<^_sMCh Option, jdMWie<WiJ!1ilff.'g>g^*^
materiagypiiyliagce^^^
Agrienm^and Lesisee agrees that, if Lessee has failed to make
any payment required under this Lease, after any applicable
notice and cure period provided in this Lease, it shall not be in
"material compliance"); (ii) Jlim^ied? thvr^remisev^pri^^
solid^Aft^;i^&rjU|iil^lQ^ and (iii)
is, as of'tne date on which"^ Lessee exercises an Option and as of
the commencement date of the Option Period related to such i
Option. C^MMQ^^ th«^-PreMses'-'prim^liy-'ae^^ \
tfansfei^sc^^mP In order to exercise an Option, Lessee must
notify the County of its irrevocable election to exercise the
Option no more^than on* yea^ and n<6 less thalS^ elk (S)-likm^
before the expiration of, with respect to the first Option, the
Initial Term or, with respect to all other Options, the then
applicable Option Period. Upon the proper and timely exercise of
an Option by Lessee in accordance with this Section, the Term
shall be extended for the applicable Option Period and the terms
LA»-t«S77I.VS Qtnvn
30
and provisions of this Lease shall remain in full force and
effect during such Option Period.
3.2 Surrender cf the Pr#miggg» Ouitelaim of Leeaee's
Intereet TTpon Teminetioii.
a. Lessee shall surrender possession of the Premises
to the County upon expiration of the Term or earlier termination
of this Lease. Upon termination of this Lease for any reason,.
including but not limited to termination because of default by
Lessee, Lessee shall execute, aclcnowledge and deliver to the
County, within thirty (30) days following receipt of written
demand therefor, a good and sufficient deed whereby Lessee
quitclaims all right, title and interest in the Premises to the
County. Should Lessee fail or refuse to deliver such quiddaim
deed to the County, the County may prepare and record a hot ice
reciting the failure of Lessee to do so, and such notice shall be
conclusive evidence of the termination of this Lease and of all
right of Lessee or those claiming under Lessee to the Premises.
b. Should the manner or method enqployed 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
shall constitute a stipulation by Lessee fixing the total damages
to which Lessee is entitled in such an action.
have
3.3
it.la,gQPneetIon with thxm LeaSe?
tf nothigyc^tayned-herein shall limit the
County/i^'|^9lftiO«i^eiMii^
. 3.4 rirst Right to ^ggvire the Frewigti. subject and
siobordinate to the first right of refusal granted to the City of
Carlsbad, its successors and assigns, pursuant to the Palomar
Transfer Station Settlement Agreement (as defined in the Purchase
Agreement), if, during the term of this Lease, the County
proposes to sell the Premises, or any portion thereof, and
provided Lessee is not in default under the terms of this Ijease
at the time such proposal to sell is made by County and Lessee is
not in default at any time during the following negotiation
period. ^!^gBMf?Wbi^|^«?flive Lessee first right ("First Right") to
negotfal!i^^P^^%!QQBC^ or that portion of
the Premisee^'Countyiifoposes 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
(30) days after Lessee has received written notice frc»n County of
County's intent to sell the Premises.
U3-7<577|.V1 oi/iim
b. If the County receives written notice from Lessee
within thirty (30) days after Lessee has received written notice
from County of County's intent to sell. County and Lessee shall
enter negotiations for sale of the Premises, or that portion of
the Premises County intends to sell.
c. If the County and Lessee do not successfully
negotiate an agreement on the sale of the Premises to Lessee
within forty-five (45) days following the County's receipt from
Lessee of Lessee's exercise of its First Right, Lessee's First
Right shall terminate and the County may take any action it .deems
necessary in the sale of the Prendses. During said period of
negotiations, Lessee and Co\inty shall negotiate in good faith.
d. The negotiation of a sale of the Premises fcrom the
County to Lessee is subject to approval by the Federal Aviation
Administration and without such approval, the terms of this ',
Section 3.4 (FIRST RI6ET TO ACQUIRE TBB PREMISES) are null anid
void.
ARTICLE 4
RENT
4.1 Prepaid Rent. The total prepaid Base Rent for the J-IL WI'II
Initial Term is the Prepaid Rent, which amount will be prepaid by xO"'*'*
Lessee to the Coxmty at Closing (as defined in the Purchase
Agrieement (as defined below)), pursuant to the te
4.2 pase Rent fey Option Periods,
extend the term of this Lease pursuant
Definitions", during the applicable Option Pe£l»r*t^Bee shalJs^'
pay to the County each month in advance, wxtfiout setoff,
deduction, prior notice or demand, the Base Rent, vrhich monthly
payment must be made on or before the first calendar day of each
calendar month during the applicable Option Period. J|ri^|Miie ^
Rent for each Opticm Period' shall bcT determined pursuasr^nr
Section 4rfr"^%nt Adju8tog|t at ^ Period "--''iiitf'WSireifjl^ te
the Base Monthly'R:eiit'boring Optictt^
4.3 Payments of Monthly Base Rent. The Base Rent payable
monthly during any Option Period shall be made payable to the
County of San Diego and shall be considered paid when delivered
to Controller Branch Office - Cashier, 5201 Ruffin Road, Suite H
(MS 0654}, San Diego, Califomia 92123. The County may, at any
time, by written notice to Lessee, designate a different address
to which Lessee shall deliver the rent payments.
4.4 Rent Adjustment at Conmencement of Each Option Period.
4.4.1 Piret Option Period. Base Rent payable
monthly for the first Option Period shall be adjusted to an
amount equal to the fair market rent for the Premises, which
"^c^—
amount shall, stibject to the provisions of this Section 4.4.1,
•First Option Period", be determined by an appraisal performed by
a mutually acceptable appraiser pursuant to mutually acceptable
instmctions. Such appraisal shall be performed no later than
six (6) months prior to the expiration of the then-current Option
Period. If the parties are not able to agree on the designation
of the appraiser, the instructions to the appraiser or on the
appraiser's conclusions, the matter shall be submitted to binding
arbitration pursuant to the provisions bf the Califomia Code of
Civil Procedure, or such successor codes or statutes.
Notwithstanding the foregoing provisions of this Section 4.4.1,
"First Option Period", in no event shall the Base Rent payable
monthly for the first Option Period be less than an amount
determined by using the formula described in Section A,S, "Cost
of Living Adjustments ("COLA") to the Base Rent During Option
Periods", where (i) "A" equals $23,000; (ii) "B" equals the
monthly Consumer Price tndex, as hereinafter defined, fbr the
month of March immediately 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.
4.4,2 Other Qptioa Ptriode. Except for the first
(Dption Period, which shall be govemed by Section 4.4.1, "First
Option Period", at the commencement of each Option Period, the
Base Rent shall be adjusted to an amount equal to the fair market
rent for the Premises; provided, t^pwever. that in no event shall
the Base Rent for any Option Period be less than three percent .
(3%) greater or more than seven percent (7%) percent greater than^
the Base Rent for the month immediately preceding the
commencement of such Option Period (excluding any offset, free
rent or credit rights of Lessee). Sxibject 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
the designation of the appraiser, the instructions to the
appraiser or on the appraiser's conclusions, the matter shall be
submitted to binding arbitration pursuant to the provisions of
the Califomia Code of Civil Procedure, or such successor codes
or statutes.
4.5 coat of Living Adiuatment («COLA"> to the Beee Rent
Payable Monthly Purina Potion Periods. The Base Rent payable
monthly during each Option Period shall be adjusted as of the
first (1st) anniversary of the commencement of each Option
Period, and thereafter every year on such date for the remainder
of the applicable Option Period (each such one-year period is
referred to herein as a "COLA Period"), to reflect any increase
in purchasing power by use of the following formula:
R - A{B/C)
uo-7«j77i.v3 8 ovtvn
xn«re1nt
..^t^, CJI-!!''"!!^* monthly rent for the COLA Period being cAiculatedi Bxastidefli b&i£ji^< in •vent shall the aMW-tBiy rent for ttny one-year COLA Pmtxc^hm l^mm than thrte percent I3%f
r«nt for tht previous one-year CDLA Period J
••A" equals the sass Rent aa of the cowmencement ef ths then-currtnt opclon verXod:
^ "J" «he tncmthly CoBauner P«lee laeex, «• herein«£i:«r defined, for the ff.onth ef NSTeb iantdlately preceding the ^ conmencement of the cotA Period for which the rent la being adjuitedt afvjl ' I •
"C" equals the monthly Consumer Price index, as here Inefr.cir
defined, sor the month sr iurcb iimdiately preceding the
commencement of the Chen-current Option Period.
4*4 ConaiMfter Sriaa ^^j^- The conoumer price Index which
ehali be used as the emiree for the Consumer Price Index numbers
shall be that published by the unitee ataeco Department of Leber,
entitled Usited Spates Separr.meat: of Labor, Bureau Of LabOt
etatlftiei, eoaeam*r Price index tor the Loe angele«*AAahelm--
Rivereide Area (X9t3-I4 - loo). If such index le net publiehed
for the LOS JUigelea-An«h«im-llivec*ide Area, thea another
cotnparable index or source ot tueh Infenoation generally
recognised as euthoritative ehell be eubati^uceo by agreement oC
the partiei, tt the partite ahculd not agree, suen source of
information ehall be determined by arbitration pursuant to the
provisions of the California Cod*) oS Civil Procedure*
AMTICLI. 1
coNuxTzoiia yucspKMT TO syrBGYXvaiBst OF LSASB
5.1 CnnAitieiiiM »nfi^fltB^ |f fBflfclYf"^"* Ml^Bt- The
esroetlveness of this Lease and the octusyenee of the tefeetive
Date is expreselv conditioned upon the eatisfaction of the
following conditiens<
a. Beeh OC the Cerisbad Lease Conditions shall hava
occurred;
b. The County shall have determlBed, in its sole ami AheoXuea diecretlon, that tbe Framiaae ere not ni^e«a««ry or deeirable for the sptrstioa of, or uses related to, the
MeClellan-Palomar Airport (including, without limicacion. the :Sov«lopin«nt of induetra.«l. buaineea ot coovMerelal facilities thereon^ > which detevminatica ehall be made, by ths County en or
before thirty buiiness (301 days tolXowiag tme oeourrenee of each of Che CacSabad Lease Conditicns; aUBCideii. Kpwevr> that in no
Raeaivid Aor-ll-00 02:01M Fro«.760BBU7B9 To-PIUSBURY $0 ?tf QZ
.^PR-ae-ee ea.ea PM HCRRP 7*ee*i^T*e p...
•vent shall the County be entitled te Xaaee the Promisee to another entity tor uee aa a transfer atatieaf and
c. AS of Che date on wnich the }ast of the Carlsbad lease Conditione occurs. Leaaee shall be in material compliance
with the teme and prcvieioni ot tne Purchase Agreement -as
dellned below) and the document a executed in connection
cherawitK.
I .a Failura. of a^onditiae. U one or more of the
conditions precedent set forth ta saatioa "Condltioaa
vreeedent to tfCectiveness ef tease" are not satisfied er'waived
by the County lo writing, ti) this Mease shall be of no force and
tff^enki (ii) neither the county nor Lessee shall be bound hereby;
(ill) Lessee shall have no right or interest in and to rhb
rramiaes, including, without: limitation, the uee or occupancy
thereof; and (iv) the county shall be free to take any action
wish respeoe ro th« Prenises it deems neoaeeary or deal tablet
pri->vided. najcmr chat in Lessee shall be entitled to a refund of
the prepaid rent es debannined pursuant te the Purenaee
AgreenMMit.
aSTZCOJE fl POSIBSSZQtf MD Oil
s.i a^^ti^^^M ffm^f Lefsee shall use-^ the Premises eolely tor the usee permitted SAd-^eacribedf^i-tt'-MeMbM JCT^CM^^ PALOKJka aiasOAT l«DDftTlXAft«'A]lBAl pfVBLOfmrraiTniaABBeiibattached nereto and tor the purposes apecified in Seeeiom 1,1S« •eeaereX
Oeseriptiea of Lessee's Vse of the frsaases". Wo oae other than
Lessee, its agents and employees, or any subleseee ef Lessee approved by the County as provided in Article IS (ASf aosbSASSlie AMP SsteoicsuJicxvO) is psnnittea te use the Premises for Che purposes described hereini and Leasee shall be tuliy respenslblQ for cne aecivitiee of its agenda, esqileyees and
subleeseei, if any, on the Premises. Leeeee aeknowiadgea that the county reserves the right te permit others at the Airport to . provide one cr more of the services to be provided by Leeaee on the Premiees.
C.2 hyfeiee yy»ti<i>4»a<i raaSYiete. whors Lessee ie r«asonably in doubt as to the propriety oC any partieular use, Leeeee may request the written determination Gf ths County's Lease AdmlAistratar that such use is or is not permitted, and
Lessee will not be in breaeh or default under this Ltase if
Lessee aniaes by such determination. )re twit he tending the foregoing, however. Lesflse •hall not use nor pemic the use ot Che Premises in any nanner chat will tend to create waaae or a nuisance, Lessse shall'net use, or permit any person or persona CO use, the Premises for the sale or display of any goede or
services which, in the eole discretion of the county, are ineonjiscant with the permitted uses of the Premises pursuant CO this Lease, Lessoo shall Vcesp the Premises, and every part
»
l)Mi)y«d Av-21-00 OKOlpa Pr0.-7688814713 To-PILL$BUHY $D PM. OS
thereof, in a good, safe and sanitary condition, free from any
objectionable noises or odors, except a.^ may be typically present
for the permitted uses specified above. Lessee shall deposit all
trash and rubbish of Lessee only within receptacles provided by
Lessee and located in the areas designated by the County. Lessee
shall not allow or permit installation of any billboards or
advertising signs, or aerials or antennas, upon the Premises
without first obtaining, in each instance, the written consent of
the County, which consent the County may give or withhold in the
County's sole discretion. Any such signs or antenna installed
without such written consent shall be subject to removal without
notice at any time, at Lessee's expense. Nothing in this Section
shall be deemed to preclude Lessee from erecting and maintaining
safety, waming or directional signs, of ireasonable dimensions,
which are not used for advertisement of goods or services;
provided, however, all such signs must conform to applicable
statutes and ordinances. : .
6.3 Cgroliapgf >f4th X^ifg*
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 Califomia, the Co\mty of San Diego
or the city where the Premises are situated, or of other lawful
authorities. Lessee shall, at Lessee's expense, comply pronptly
with all applicable statutes, laws, ordinances, rules,
regulations, orders, covenants and restrictions of record, and
requirements in effect during the Term, regulating the use by
Lessee of the Premises. The final judgment of any court of
coR^etent jurisdiction, or the admission of Lessee or any
sublessee or permittee in any action or proceeding against them
or any of them, whether or not the County is a party to such
action or proceeding, that Lessee, or any such sublessee or
permittee, has violated any such ordinance, law, statute,
regulation, covenant, restriction or requirement pertaining to
the use of the Premises, shall be conclusive as to that fact as
between the County and Lessee.
b. Notwithstanding any other provision of this Lease
to the contrary. Lessee shall be responsible for payment of all
costs of complying with the requirements of the Americans with
Disabilities Act of 1990 ("ADA") (42 USCS SS 12101-12213), Title
24 of the Califomia Code of Regulations ("Title 24") and
Califomia Civil Code S 54.1 as they may apply to the Premises.
Lessee's obligations under this Section shall include, without
limitation, all costs of bringing the Premises into con^jliance,
and thereafter maintaining such compliance, with the requirements
of Title III of the ADA ("Title III") (42 USCS S§ 12181 - 12189)
applicable during the Term to public accommodations and
11 (s/iim
I
commercial facilities, irrespective of whether or not the
particular requirements of such conqpliance (i) are specifically
required by Lessee's intended use of the Premises, or (ii) may
also be required of the County under Title II of the ADA ("Title
II") (42 users SS 12131 . 12165).
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 sabstance Abuse- Lessee and its employees and agents
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 lot the
purpose of unlawfully selling, serving, using, storing,
transporting, keeping, manufacturing or giving away alcoholic
beverages or any. "controlled substance," precursor or analog
specified in Division 10 of the Califomia Health and Safety
Code, and violation of this prohibition shall be grounds for
immediate termination of this Lease.
6-5 Control of Preniaef. Failure of Lessee to exercise
control of the use of Premises to conform to the provisions of
this Article shall constitute a material breach of the»Leaee ^and
such shall be grounds for termination.
ARTICLE 7
UTILITIES
for its use and occupancy of the Premiees during^ the Term,
including but not limlted'tp gas, \*ater, electricity, trash,
sewer/septic tank charges and telephone; the County shall have no
responsibility to either provide or pay for such services. The
County will not be liable for any reason for any loss or damage
resulting from an interruption of any of these services. The
County shall have the right, at no charge from Lessee, to connect
to any water, sewer, electrical, gas and conmuni cat ions 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
connections; provided* however: Lessee shall have no obligation
to pay any additional service fees or charges assessed by any
governmental agency, or public or private utility conqpany, for
the County's use of such connections; and, providedr further,
however, that such connection does not materially interfere with
Lessee's continued operation of the Premises.
ARTICLE 8
KECEAKICS' LIENS
8.1 Mechaniea* Liens. Lessee shall pay, or cause to be
paid, all costs for work done by it, or caused to be done by it,
on the Premises, and' for all materials furnished for or in
connection with any such work. If any lien is filed against the
Premises, Lessee shall cause the lien to be discharged of record
within ten (10) days after it is filed. Lessee shall indemnify,
defend and hold the Co\mty harmless from any and all liability,
loss, damage, costs, attomeys' fees and all other expenses .on
account of claims of lien of laborers or materialmen or others
for work performed or materials or supplies fumished for Lessee
or persons claiming under Lessee.
I
8.2 Contest of Lien. If Lessee shall desire to contest any
lien filed against the Premises, it shall fumish the County,
within the ten-day period following filing of the lien, sdcufJfty
reasonably satisfactory to the County of at least one hundred
fifty percent (150%) of the amount of the lien, plus estimated
costs and interest, or a bond of a responsible corporate surety
in such amount, conditioned on the discharge of the lien. If a
final judgment establishing the validity or existence of a lien
for any amount is entered. Lessee shall immediately pay and
satisfy the same.
8.3 Rioht to Cure. If Lessee shall be in default in paying
any charge for which a mechanics' lien claim and suit to
foreclose the lien have been filed, and shall not have given the
County security to protect the property and the County f rem
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 attomeys' fees incurred in
connection therewith, shall be immediately due and owing from
Lessee to the County, and Lessee shall pay the same to the County
with interest at the rate spedified in Section 16.8, "interest"
from the date(s} of the County's payments.
8.4 Notice of Lien. Should any claim of lien be filed
against the Premises or any action against the Premises or any
action affecting the title to such property be coimnenced, the
party receiving notice of such lien or action shall immediately
give the other party written notice thereof.
8.5 yotiee of Wonreaponsibilitv. The County or its
representatives shall have the right to go upon and inspect the
Premises at all reasonable times and shall have the right to post
and keep posted thereon notices of nonresponsibility or such
other notices which the County may deem to lae proper for the
protection of The County's interest in the Premises. Lessee
shall, before the commencement of any work which might result in
any such lien, give to the County written notice of its intention
to do so in sufficient time to enable posting of such notices.
uJ-TWTi.va 13 oi/iim
ARTICLE 9
SECURITY
Lessee shall be responsible for and shall provide for the
security of the Premises, and the County shall have no
responsibility therefor. Lessee shall construct 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, walla
and/or barriers must be submitted to and approved by the County
prior to construction. In the event the northerly boundary of
the Premises is adjusted for the construction of the easterly
prolongation of Faraday Road, Lessee shall move, at Lessee's sole
expense, said security fencing, gates, walls and/or barriers
within thirty (30) days following the completion of Farac^y Road
along the northerly boundary of the Premises.
ARTICLE 10
IMPROVEMENTS! PERSONAL PROPBRTTf
FIXTURES I MINOR ALTERATIONS
iO.l SMBXSSimSASJL* Lessee may, at Lessee's own expense,
from time to time make such nonstructural (whether permanent or
temporary) alterations, replacements, additions, changes, or
inqprovements (collectively referred to in this Lease as
"Improvements") to the Premises as Lessee may find necessary or
convenient for its purposes; prpvidedf hflwjBXiM; the value of the
. ^^-^^^^.^^ further provided that. ^. ^-jjeinaanent noa-etructural^
, no such iB^rovements may be. made irithout obtaining^
the prior wrlttt^y. approvalUgf the Coimtyf consent shall not
be unreasonably withheld, in no event shall Lessee make or cause
to be made any penetration into or through the roof or floor of
2uay stmcture 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
constmction operations so that such operations do not interfere
with the normal operation and use of the Airport by the County,
the public and other persons and organirations entitled to use of
the same.
10.2 Construction Requirements. All liqprovements to be made
to the Premises shall be made under the supervision of a
con^etent architect or licensed stmctural 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
connection therewith, Lessee shall provide a minimum of three (3)
sets of working drawings or plans showing the planned
In^rovements, for the County's approval, prior to coimnencing
work. All work with respect to any Improvements must be done in
uo-TWJi.va 14
a good and workmanlike manner, coimnenced within ninety (90) days
following receipt of approval therefor from the County, and
diligently prosecuted to couplet ion to the end that the Premises
shall at all times be a con^lete unit except during the period of
work. Upon con5)letion of such work. Lessee shall have recorded
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
said work, a copy of the Notice of Occupancy and the building
permit with respect thereto. Within sixty (60) days following
conpletion of an In^rovement, Lessee shall provide the County
with two (2) cooqplete. sets of "as-built" plans of such
Inprovement. Vpaa the expiration or earlier termination of this
Lease, such Inprovements shall not be removed by Lessee but shall
become a part of the Premises. Any such Improvements shall be
performed and done strictly in accordance with' the laws and
ordinances relating thereto.
10.3 The Countv*a Coat^^ IvHtmritY Lessee shall reindburse
the Coiinty for all actual and documented reasonable out-of-pocket
costs and expenses (including, without limitation, any architect
or engineer fees) incurred hy the County in approving or
disapproving Lessee's plans for Inprovements. Lessee shall be
liable for and shall indemnify and defend the County from any
claim, demand, lien, loss, damage or esqsense, including
reasonabls attomeys' fees and costs, arising from Lessee's
constmction or installation of any Is^rovements permitted under
this Article.
10.4 Personal Property. Subject to the provisions of the
following Section 10.5, "Fixtures", all of Lessee's trade
fixtures, fumiture, fumishings' signs and other personal
property not permanently affixed to the Premises (collectively
referred to as "Personal Property" in this Lease) shall remain
the property of Lessee. Lessee shall, at its expense,
imnediately repair any damage occasioned to the Premises by
reason of the removal of any such Personal Property.
10.5 Fixtures. All In^rovements constmcted by Lessee, or
existing on the Premises on the Effective Date, together with all
other fixtures, excepting Lessee's trade fixtures, permanently
attached to the Premises (collectively referred to in this Lease
as "Fixtures") shall become the property of the County upon
expiration or earlier termination of this Lease. Notwithstanding
the foregoing, the County may require Lessee to remove any
Fixtures at Lessee's own expense upon termination of this Lease.
Any damage to the Premises occasioned thereby shall be repaired
by Lessee in a good and worJcmanlike manner and the Premises shall
be left in as good order amd 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
U3-7^I.V3 IS oi/iim
County the reasonable cost of such removal, sale or destmction,
together with the reasonable cost of repair of damages to the
County's property or in^rovements or to the Premises resulting
therefrom. •
10.6 sions and Liohtino. Lessee shall not constmct nor
pennit 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 (MCCLELLAN-PALOMAR AIRPORT
INDUSTRIAL AREAS DEVELOPMENT STANDARDS) and to any laws or
ordinances of governmental agencies having jurisdiction over the
Premises. All. exterior lighting on the Premises must conform to
the standards contained in Exhibit D (MCCLELLAN-PALOMAR 'AURFORT
INDUSTRIAL AND AVIATION AREAS PERFORMANCE STANDARDS) and tO any
laws or ordinances of governmental agencies having juri^d^ictrion
over the premises. ' t
10.7 Minor Alterations. Notwithstanding the foregoing
provisions of this Article, Lessee may make, without obtaining
the prior approval of the Coiuity, minor alterations and
improvements ("Minor Alteration") to the Premises that do not
require a building pennit, 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 sLxiy stmcture on the Premises, and which do not
involve the constmction of any new stmctures on the PremdLeee^
The County shall be the sole judge of whether or not any
alteration or improvement is a Minor Alteration.
ARTICLE 11
TAXES, ASSESSMENTS AND FEES
11.1 ycsponaibilitv for Payment of Taxes aad Assessments.
The County shall not be obligated to pay any taxes or assessments
accming against Lessee on the Premises or any interest of Lessee
therein before, during or after the Term, or any extension
thereof; all such payments shall be the sole responsibility of
Lessee. In addition. Lessee shall be solely responsible for
payment of any taxes or assessments levied upon any Improvements,
Fixtures or Personal Property located on the Premises, to the
extent that such taxes or assessments result from the tmsiness or
other activities of Lessee upon, or in connection with, the
Premises.
11.2 pefinition 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.
LA3-WS771.V3 16 ouivn
(iv) interest on taxes or penalties resulting from Lessee's
failure to pay taxes, or (v) any increases in taxes attributable
to the sale of Lessee's leasehold interest in the Premises.
11.3 Creation of Pofinmmmory 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, l^essee may be subjected to the payment of
real property taxes levied on such interest. Lessee shall
solely responsible for the payment of any such real property
taxes. Lessee shall pay all such taxes when due, and shall-not
allow any such taxes, assessments or fees to become a lien
against the Premises or any in^roveroent thereon; provided.
however, nothing in. this Lease shall be deemed to prevent, or
prohibit Lessee from contesting the validity of any such tax,
assessment or fee in a manner authorized by law. j
ARTICLE 12 ' '
REPAIRSi MAINTENANCE
12.1 acceptance of Preniaes. Lessee acknowledges that
Lessee has made a thorough inspection of the Premises prior to
the Effective Date of this Lease, and that it accepts the '
Premises as of the Effective Date in their condition at that
time; provided, however, that the foregoing shall not hm
constmed as the acceptance by Lessee of any liabilities for Pre-
Closing Leased Facilities Environmental Conditions (as defined in
the Purchase Agreement). Lessee further adcnowledges tlutt the
County has made no oml or written representations or warranties
to Lessee regarding the condition of the Premises, and that
Lessee is relying solely on its inspection of the Premises with
respect thereto.
12.2 Lessee*s Repair and Maintenance Oblioatione. Lessee
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
conditioning system; mechanical and electrical systems; all
meters, pipes, conduits, equipment, components and facilities
(whether or not within the Premises) that supply the Premises
exclusively with utilities (except to the extent the appropriate
utility company has assumed these duties); all Fixtures and other
equipment installed in the Premises; all exterior and interior
glass installed in the Premises; all signs, locking and closing
devices; all interior window sashes, casements and frames; doors
and door frames (except for the painting of the exterior surfaces
thereof); floor coverings; and all such items of repair,
maintenance, alteration, in^rovement or reconstmction as may be
required at any time or from time to time by a governmental
agency having jurisdiction thereof. Lessee's obligations under
LAJ.MSTTI.Va 17 ovitm
this Article shall apply regardless of whether the repairs,
restorations and replacements are ordinary or extraordinary,
fore8ee203le or unforeseeable, capital or noncapital, or the fault
or not the fault of Lessee, its agents, employees, invitees,
visitors, sublessees or contractors. All replacements made by
Lessee in accordance with this Section shall be of like size,
kind and quality to the items replaced and shall be subject to
prior written approval by the County. Upon surrender of the
Premises, Lessee shall deliver the Premises to the County in good
order, condition and state of repair, but shall not be
responsible for damages resulting from ordinary wear and tear.
Lessee shall provide for trash removal, at its esqpense, and shall
maintain all trash receptacles and trash areas in a clean,
orderly and first-class condition. The County shall have no
responsibility or liability for any of the obligations set forth
in this Section.
12.3 Lessee's Failure to Maintain. If Lessee refuses or
neglects to repair, replace, or maintain the Premises, or any
part thereof, in a manner reasonably satisfactory to the County,
the County shall have the right, upon giving Lessee reaaonable
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 Coiinty 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" froob the
date(s) of the County's payments.
12.4 Right to Entiy. 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
la%irs, ordinances, mles or regulations of any public authority,
(b) that the County may deem necessary to prevent waste or
deterioration in connection with the Premises if Lessee does not
make, or cause to be made, such repairs or psrform, or cause to
be performed, such work promptly after receipt of %n:itten demand
from the County, and (c) that the County may deem necessary in
connection with the expansion, reduction, remodeling, protection
or renovation of any the County-constmcted or owned facilities
on or off of the Premises, or at the Airport. Nothing contained
in this Section shall iitply 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 inraiver of Lessee's
default in failing to do the same. No exercise Jay the County of
any rights reserved to it by this Section shall entitle Lessee to
any condensation, damages or abatement of rent from the County
for any injury or inconvenience occasioned thereby,
12.5 eountv Not obligated to Ret^air or Maintaim Leeeee'a
Waiver of ralifomia Civil Code Section 1942. To the extent that
LA)*79fni.v} 18 ouitm
any remedies specified in this Lease conflict or are inconsistent
with any provisions of Califomia Civil Code Section 1942, or any
successor statute thereto ("CC S1942"), the provisions of this
Lease shall control. Lessee specifically waives any right it may
have pursuant to CC §1942 to effect maintenance or repairs to the
Premises and to abate the costs thereof from rent due to the
County under this Lease.
ARTICLE 13
INDEMNITY AND INSURANCE
13.1 Indeamitv bv Leea^^. Except for indemnification
related to Contaminants (as defined in the Purchase Agreement),
Leachate (as defined in the Purchase Agreement)* and Landfill Gas
(as defined in the Purchase Agreement), with respect to which the
provisions of the Purchase Agreement shall 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'
liens or other liens, losses, damages, expenses, charges or costs
of any kind or character, including actual attorneys' fees and
court costs (collectively referred to as "Claims"), arising from
or in connection with, or caused by, directly or indirectly,
(i) any breach or default by Lessee of its obligations \inder this
Lease (excluding therefron any Retained Liability (as defined in
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
Premises, or any part thereof, or any service delivery facilities
or any other portions of the Property used by Lessee, and
(iv) any labor dispute involving Lessee, its employees,
contractors or agents, including, without limitation, Claims
caused by the concurrent negligent act or omission, whether
active or passive, of the County or its agents; provided^
howevei^. Lessee shall have no obligation to defend or indemnify
the County from Claims caused solely by the gross negligence or
willful or criminal act of the County or its agents;
13*2 lasazaasfi. without limiting Lessee's indemnification
obligations to the Coiinty, Lessee shall provide and maintain,
during the Term and for such other period as may be required in
this Lease, at its sole expense, insurance in the amounts aind
form specified in Exhibit E (INSURANCE REQUIREMENTS) attached
hereto.
13.3 r^1?rm)ltY by the County. Except for indemnification
related to Contaminants (as defined in the Purchase Agreement),
Leachate (as defined in the Purchase Agreement) and Landfill Gas
LA3.7*sni,vi 19 oi/iim
(as defined in the Purchase Agreement), with respect to which the
provisions of the Purchase Agreement shall govern. Lessee shall
not be liable for, and only to the extent permitted by applicable
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 hy the County of its obligations under this
Lease, excluding therefrom any Assumed Liabilities (as defined in
the Purchase Agreement) and any items with respect to which
Lessee or Allied (as defined below) is required under the
Purchase Agreement to assume or indemnify the County; and (ii)
any gross negligence or willful or criminal act of the County or
its agents; provided, however, the County shall have no t i
obligation to defend or indemnify Lessee from Claims caused
solely by the gross negligence or willful or criminal act of the
Lessee or its agents. 'I :'i
ARTICLE 14
CONTAMINANTS, LEACBATB AND X«ANDFILL GAS
14.1 gayiroffffitatal hm. .i.Pefiaitioa- As used in this
Section, the term "Environmental Laws" has the meaning set forth
in the Purchase Agreement.
14.2 rontaminants. Leaehate and Landfill gee, » Definition^.
As used in this Section, the terms "Contaminants^tt "Leachate" and
"Landfill Gas" have the meauaings set forth in theiv^ucchas*^.
Agreement.
14.3 y,es8ee'B Representations and Warranties. Lessee
represents and warrants that, during the Term or any extension
thereof, or for such longer period as may be specified in this
Lease, Lessee^shall comply with_tlMi-Xolli3Mina. prnvlBipa^ of this*
Section unle8S~>.t^«;iji^^ approved in %n:iting by the
County's LeaserAdmihistrator:
a. Lessee vSiSffiEfTlliel^^u peirM€^a^ Contaminanti,
Leachate or Landfll'l^ <3ai^ to be brought f kept or used in or about
the Premised by Lessee, its agents, en^loyees, sxxblessees,
assigns, contractors or invitees, except as permitted hy
Environmental Laws and except as required by Lessee's permitted
use of the Premises, as described in Section 6.1 (PEPM2TTED
USES) .
b. Any handling, transportation, storage, treatment
or usage by Lessee of Contaminauits, Leachate or Landfill Gas that
is to occur on the Premises following the Effective Date shall be
in compliance with all applicable Environmental Lawe/^
c. Any leaks, spills, release, discharge, emission or
disposal of Contaminants, Leachate or Landfill Gas which may
LAj'-nsni.Yi 20 ot/itm
occur on the Premises following the Effective Date shall be
promptly and thoroughly cleaned and removed from the Premises by
Lessee at its sole expense, and any such discharge shall be
promptly reported in writing to the County, and to any other
appropriate governmental regulatory authorities;
d. No friable asbestos shall be constmcted, placed
on, deposited, stored, disposed of, or located by Lessee in the
Premises or on the Property;
e. No underground inprovements, including but not
limited to treatment or storage tanlcs, 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; <
1
f. Lessee shall conduct and complete all :
investigations, studies, sanqpling, and testing procedures! *nd all
remedial, removal, and other actions necessary to clean up anb
rexnove all Contaminants, Leachate and Landfill Gas on, from, or
affecting the Premises in accordance with all applicable
Environmental La«rs 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
copies of all notices, reports, correspondence, and stibmissions
made by Lessee to the United States Environmental Protection
Agency, the United Occupational Safety and Health Administration,
and any other local, state or federal authority which requires
submission of any information conceming environmental matters or
hazardous wastes or substances pursuant to applicable
EnviroDmental Laws;
h. Lessee shall promptly notify the County of any
liens threatened or attached against the Premises pursuant to any
Environmental Law. If such a lien is filed against the Premises,
then, within the earlier of (i) twenty (20) days following such
filing, or (ii) before any governmental authority commences
proceedings to sell the Premises pursuant to the lien. Lessee
shall either: (a) pay the claim and remove the lien from the
Premises, or (b) fumish either (i) a bond or cash deposit
reasonably satisfactory to the County in an amount not less than
the claim from which the lien arises, or (ii) other security
satisfactory to the County in an amoimt not less than that which
is sufficient to discharge the claim from which the lien arises;
and
i. At the end of this Lease, Xiessee shall surrender
the Premises to the County free of any and all Contaminants,
Leachate and Landfill Gas and in cospliance with all
Environmental Laws affecting the Premises, except with respect to
Pre-Closing Leased Facilities Environmental Conditions.
LA3-7«JT7I.VJ 21 auitm
14.4 Tndpumlficatioos Reoardino Contaminants. Leaehate and
Landfill Sas. The indemnification responsibilities of Lessee
and the County relating to Contaminants, Leachate and Landfill
Gas shall be as set forth in the Purchase Agreement.
14.5 Remedies Cunnilativet Survival. The provisions of this
Article shall be in addition to any and all obligations and
liabilities Lessee may have to the County at common law, and any
remedies and the environmental indemnities provided for in this
Article shall survive the expiration or termination of this
Lease, the transfer of all or any portion of the Premises or of
any interest in this Lease, and shall be govemed by the laws of
the State of C^alifomia.
14.6 inspection. The County and the County's agents,
servants, and enqployees including, without limitation, legal
counsel and environmental consultants and engineers retained by
the County, may (but without the obligation or duty so to do), at
any time and from time to time, on not less than ten (10)
business days' notice to Lessee (except in the event of an
emergency in which case no notice shall be required), inspect the
Premises to determine whether Lessee is complying with Lessee's
obligations set forth in this Article, and to perform
environmental inspections and san^lings, during regular business
hours (except in the event of an emergency) or during such other
hours as the County and Lessee may agree. If Lessee is not in
compliance, the County shall have the right, in addition to the
County's other remedies available at law and in equity, to enter
upon the Premises immediately and take such action as the County
in its sole judgment deems appropriate to remediate any actual or
threatened contamination caused by Lessee's failure to comply.
The County will use reasonable efforts to minimize interference
with Lessee's use of Premises but will not be liable for any
interference caused by the Coimty's entry and remediation
efforts. Upon completion of any sampling or testing the Cbunty
will (at Lessee's expense if the Coimty'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 ENCUMBRANCINO
15.1 The County's Consent to Transfer Required. Lessee
shall not voluntarily or involuntarily assign, sublease,
mortgage, encumber, or otherwise transfer (collectively, a
"Transfer") all or any portion of the Premises or its interest in
this Lease wijp^^PI? the^ Cbimt;^s iprior written consent, %ffaich
consent shall not be' unreasonably*wr£KKeYd/(provided, however,
that Lessee ac)cnowledges and agrees that the Coimty's denial of
consent for a reason listed in Section 15.2.2, "Denial of Consent
to Transfer" shall conclusively be deemed reasonable). The
County may witlihold its consent until Lessee has complied with
lAi-nrnuvi 22 witm
HI
the provisions of the following Sections of this Article. Any
atten5>ted Transfer without the County's consent shall be void and
shall constitute a material breach of this Lease. As used
herein, the term "Transfer" shall include (i) an arrangement
(including without limitation management agreements, concessions,
and licenses) that allows the use and occupancy of all or part of
the Premises by anyone other than Lessee, and (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 Election. Lessee's request for consent to
any Transfer shall be accompanied by a written statement setting
forth the details of the proposed Transfer, includ'ing (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 the
finencial responsibility and character of the Transferee; (ii) a
copy of the proposed assignment or sublease and the financial
details of the proposed Transfer (including the duration, the
rent and any security deposit payable under an assignment or
sublease), (iii) the Transferee's proposed use of the Premiees,
and (iv) any other related information which the County may
reasonably require. The County shall have the right: (a) to
withhold consent to the Transfer, if reasonable; (b) to grant
consent; or (c) to terminate this Lease for the portion of the.
Premises affected by any proposed sublease or assignment, in
which event the Coimty may enter into a lease direeely with thm
proposed sublessee or assignee.
15.2.1 Consent to Transfer. The County's consent to
an assigzmient or sixblease will not be effective until (i) a fully
executed copy of the instrument: accomplishing a Transfer
("Transfer Instrument") has been delivered to the County,
including, without limitation, a copy of any trust deed
encumbering Lessee's leasehold and the note secured thereby, (ii)
in the case of a sublease, the County has received from Lessee an
original of the executed sublease (which sublease must contain
the provisions described in Exhibit F (MCCLELLAN-PALOMAR AIRPORT •
TEE COOMTy OF SAN DIEGO REQUIRED SUBLEASE PROVISIONS)) and.
(iii) in the case of an assignment, the County has received a
written instrument in which the assignee has assumed and agreed
to perform all of Lessee's obligations under this Lease. Any
rights acquired by a Transferee pursuant to any Tramsfer
Instrument shall be subject to each and every covenant, condition
and restriction set forth in this Lease and to all of the rights
and interest of the County in this Lease, except as may be
otherwise herein specifically provided in this Article. In the
event of any conflict between the provisions of this Lease and
the provisions of any Transfer Instrument, the provisions of this
Lease shall control.
LAJ.7*J771.VJ 23
15.2.2 Denial of Consent to Tranafeg. If the County
denies its consent to a proposed Tramsfer, and if Lessee shall so
request in writing, the County shall provide to Lessee a
statement of the basis on which the County denied its consent
within a reasonable time after the receipt of Lessee's notice.
Lessee shall have the burden of proving that the Coun^^ consent
to the proposed Transfer was withheld unreasonably; clraB^^rden
may bm satisfied if the County fails to provide a statement of a
reasonable Idasis for withholding^'^ itr 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
to withhold consent to a Transfer for purposes of compliance with
Califomia Civil Code Section 1951.4: »
I
(a) Lessee or any of its successors, assigns or
sublessees are in default as to any term, covenant or condition
of this Lease, whether or not notice of default has been given by
the County.
(b) The prospective assignee or sublessee has not
agreed in writing to keep, perform and be bound hy all of the
terms, covenants and conditions of this Xiease.
(c) The County reasonably objects to the
financial condition of the prospective assignee or sublessee.
(d) All of the terms, covenants and conditions of
the assignment or sublease, including any considemtion therefor,
have not been disclosed in writing to the County.
(e) Any constmction of inprovements cotranenced 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
constmction.
(f) Nonpayment of the Transfer Fee described
below.
If Lessee believes that the County has unreasonably withheld its
consent to a Transfer, Lessee's sole remedy will be to seek a
declaratory judgment that the County has unreasonably withheld
its consent or an order of spiecific performance or mandatory
injunction requiring the County's consent. Lessee will not have
any right to recover damages or to terminate this Lease.
15,3 EF^^rrfrtripQ ^he Leasehold Estate with a Mortoaoe. Any
Transfer which consists of the grant of a deed of tmst or
similar encumbrance (such encumbrances are collectively referred
to herein as a "Mortgage") by Lessee to secure the beneficial
interest of a lender ("Beneficiary") in the Premises or Lessee's
interests under this Lease, shall be subject to all of the
LAi.rtim .V2 24 auitm
provisions of this Article pertaining to the conclusion and
approval of other Transfers, and shall also be subject to the
additional terms and conditions set forth below:
(a) No Mortgage granted by Lessee shall enciuiber the
fee title to the Preinises at any time;
(b) Immediately following the recordation of any
Mortgage affecting the Premises or Lessee's interest in this
Lease, Lessee, at Lessee's expense, shall cause to be recorded in
the Office of the Recorder, San Diego the County, Califomia, a
written request for delivery to the County of a copy of any
notice of default and of any notice of sale under such Mortgage,
as provided by the statutes of the State of Califomia pertaining
thereto.
15.3.1 Curable and Noncurable Defaults thider
Lease» the Countv'a Covenant of Forbearance. Where the County
has consented to a Mortgage encumbering Lessee's leasehold as
required pursuant to this Article, then the County,
notwithstanding anything to the contrary in this Lease, shall not
exercise its remedies under this Lease for Lessee's default
during the periods specified in this Section so long as the
Beneficiary of such Mortgage takes the following actions:
a. If a curable breach of the Lease occurs, a^.
Beneficiary shall have the right to begin foredosiure .proceedings
and to obtain possession of Lessee's interest in'thiMwpceBdsee^BO
long as Beneficiary complies with the conditions set forth below:
(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 Coimty's notice of Lessee's default, of
its intention to effect this remedy;
(3) Institutes immediate steps or legal
proceedings to foreclose on or recover possession of the
leasehold, and thereafter prosecutes the remedy or legal
proceedings to con^letion with due diligence and continuity; and
(4) Keeps and performs, during the period until
the leasehold shall be either (i) sold upon foreclosure pursuant
to the Mortgage, or (ii) released or reconveyed pursuant to the
Mortgage (such period being referred to hereinafter as the
"Foreclosure Period"), all of the covenants and conditions of
this Lease, including, without limitation, payment of all rent,
taxes, assessments, utility charges and insuramce premiums
S 0
required by this Lease to be paid hy 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 con^lies with the conditions set forth below:
(1) Notifies the County, within ten (10) days
after receipt of the Coimty's notice of Lessee's default, of its
intention to effect this remedy;
(2) Institutes immediate steps or legal
proceedings to foreclose on or recover possession of the
leasehold, and thereafter prosecutes the remedy or legal
proceedings to conpletion with due dili>gence and continuity; and
(3) Keeps and performs, during the Foreclosure
Period, all of the covenants and conditions of this Lease
requiring the payment of money, including, without limitation,
payment of all rent, taxes, assessments, utility charges and
insurance premiums required hy this Lease to be paid by Lessee
and which become due during the Foreclosure Period.
c. If Lessee fails to cure any curable default
within the time period allowed for such cure in this Lease, no
cure by a Beneficiary of any such default in the manner allowed
under this Section shall reinstate Lessee in good standing under
this Iiease. If, following expiration of the cure period, if any,
applicable to Lessee, the Beneficiary shall fail or refuse to
conq^ly with any or all of the conditions of this Section
applicable to Lessee's default, including failing to
expeditiously obtain title to Lessees'if> leasehold, then the Coimty
shall be released from its covenant cf forbearance hereunder, and
may immediately terminate this Lease.
15.3.2 Tranafcr of Lcaachold Estatet the County's
Option PVTghflfft Any Beneficiary who acquires title to the
leasehold estate shall immediately provide the County with
%n:itten 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 tmstee'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
terms of the Lease. The County may exercise such option to
purchase by delivering written notification thereof to a
Beneficiary at any time within thirty (30) days following the
U3-WT7I.V2 26 Qi/iim
County's receipt of written notification of the Beneficiary's
acquisition of title to the leasehold.
a. Should the County elect to not exercise its
option to purchase the leasehold within the period described
above, then, subject' to the provisions of Sections 15.4,
"Transfer fee," 15.5, "No Release of Lessee," and 15.6, "No
Merger," below, and so long as the Beneficiary shall have
observed all of the conditions of Section 15.3.1, above, the
following breaches, if any, relating to the prior lessee shall be
deemed cured: (i) attachment, execution of or other judicial
levy upon the leasehold estate, (ii) assignment of creditors of
Lessee, (iii) judicial appointment of a receiver or similar
officer to take possession of the leasehold estate or the ,
Premises or (iv) filing any petition by, for or against Lessee
under any chapter of the Federal Banlcmptcy Code. Any further
transfer of the leasehold estate, however (whether lay a i i ,
Beneficiary or by a third-party bidder acquiring the estate at a
foreclosure sale), shall be subject to the following conditions:
(1) The provisions of Sections 15.1, "The
County's Consent to Assignment Required," and 15.2, "The County's
Election," above, shall apply to such further Transfer, and- the
County's consent shall be required to such further Transfer; and
(2) By its acceptance of the leasehold estate,
the Transferee of such further Transfer assumes this Lease "AS to
the entire leasehold estate and covenants with'the Coune3pr<o be
bound hereby.
15.3.3 Article ControUiaff» m the event of any
conflict between the provisions of this Article and any other
provision of this Lease, this Article shall control.
15.3.4 Fii?,wrt to gjyg Notioi. Except as expressly
set forth in this Article, the County shall have no obligation to
amy Beneficiary or to give any notice to any Beneficiary, and the
County's failure to provide any Beneficiary with any notice of
any default hereunder shall not create any right or claim against
the County on behalf of Lessee or amy Beneficiary.
15.4 Transfer Fee. If the County is requested to consent to
a Transfer hereunder. Lessee shall pay all the County's
attorneys' fees, plus a nonrefundable fee of $750 ("Transfer
Fee") to reimburse the County or the County's agent for costs and
expenses incurred in connection with such request. The Transfer
Pee shall be delivered to the County concurrently with Lessee's
request for consent.
15.5 No Release of Lessee. No permitted Transfer shall
release or change Lessee's primary liability to perform all
obligations of Lessee under this Lease, except to the extent the
Lease is terminated as described above. The County's consent to
LAS-TWTi.v: 27 oc/iim
one Transfer shall not be deemed to imply the County's consent to
any subsequent Transfer. If Lessee's Transferee defaults uader
this Lease, the County may proceed directly against Lessee
without pursuing remedies against the Transferee. The County may
consent to subsequent assignments or modifications of this Lease
by Lessee's Transferee, without notifying Lessee or obtaining its
consent, and such action shall not relieve Lessee's liability
under this Lease.
15.6 Ho Wffrqtg. No merger shall result from a Tramsfer
pursuant to this Article, Lessee's surrender of this Lease, or a
mutual cancellation of this Lease in any other manner. In any
such event, the County may either terminate any or all subleases
or succeed to the int«:rest of Lessee thereunder.
15.7 APPrpyil of Temporary er Limited Aetivitiee hy.
SsimSSH' Notwithstanding any provision of this Article to the
contrary, the Coimty, may, at his or her sole discretion,' andi
without charging a Transfer Pee, give written authorization for
the following activities on the Premises: (i) .activities of a
temporary nature, not to exceed one hundred twenty (120) calendar
days, and (ii) activities of a limited nature which do not exceed
ten (10) hours per week. Lessee shall maintain, on am approved
the County form, a listing of all such activities approved by the
County, stating the nature, duration and other relevant matters
regarding such activities, and shall make such form available to
the County for inspection upon request. Nothing herein shaill
relieve Lessee from its responsibilities under this Lease, and
Lessee shall be responsible for insuring that any such activity
approved by the County complies with all of the provisions of
this Lease. Any such temporary or limited activity shall be
subject to immediate termination upon delivery of written
notification thereof from the County.
ARTICLE 16
DEFAULTS BY LESSEE| THE COUNTY'S REMEDIES
16.1 Events of Defanl^. The occurrence of any of the
following shall constitute a default by Lessee and a breach of
this Lease:
(a) Failing or refusing to pay any amount due to the
County when due in accordance with the provisions of this Lease;
(b) Failing or refusing to occupy and operate the
Premises in accordance with the provisions of this Lease;
(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
County;
LAyivni.vi 28 <M/\Vf7
^3
(d) Maintaining, committing or permitting on the
Premises waste, a nuisance, or use of the Premises for an
unlawful purpose, or assigning or subletting this Lease in a
manner contrary to the provisions of this Lease;
(e) The ofccurrence of any of the events set forth in Section 19.1, "Right of Termination," below.
16^.2 ypticei. Following the occurrence of any of the
defaults specified in the preceding section, the County shall
give Lessee a written notice specifying the nature of the default
and the provisions of this Lease breached and demanding that
Lessee either fully cure each such default within the time period
specified in the sulsparagraphs below or quit the Premises and
surrender the same to the Coimty: ~
(a) For nonpayment of any amount due to the County in accordance with the provisions of this Lease, five (5) wor)cing days;
(b) For a curable default, a reasonable period not to
exceed ten (10) working days, provldedi however, if such default
cannot be cured within said time period. Lessee shall be deemed
to have cured such default if Lessee so notifies the County in
writing, commences cure of the default within said time period,
and thereafter diligently and in good faith continues with and
actually con^letes said cure; amd
(c) For a noncurable default, the County shall givei^
Lessee a written notice specifying the nature of the default and
the provisions of this Lease breached and the County shall have^r.
the right to demand in said notice that Lessee, and any -
subtenant, quit the Premises within five • (5) working days.
To the extent permitted by applicable State law, the time periods
provided in this Section for cure of Lessee's defaults under this
Lease or for surrender of the Premises shall be in lieu of, and
not in addition to, any similar time periods described hy
Califomia law as a condition precedent to the comoiencement of
legal action against Lessee for possession of the Premises.
16.3 The County'a Rights and Remediee. Should Lessee fail
to cure any such defaults within the time periods specified in
the immediately 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 )cind to Lessee or
any other person, except as may otherwise be required by
applicaLble Califomia law:
(a) The right of the Cbunty to terminate this Lease
and Lessee's right to possession of the Premises and to reenter
the Premises, take possession thereof and remove all persons
otuitm
Si
therefrom, following which Lessee shall have no further claim on
the Premises under this Lease;
(b) The right of the County without terminating this
Lease and Lessee's right to possession of the Premises, to
reenter the Premises and occupy the whole or amy part thereof for
and on accoimt of Lessee and to collect any unpaid rents and
other charges, which have become payable,, or which may thereafter
become payable pursuant to Civil Code Section 1951.4; or
(c) The right of the County, even though it may have
reentered the Premises in accordance with the immediately
preceding subparagraph (b) of this Section, to elect thereafter
to terminate this Lease and Lessee's right to possession* of the
Premises. '
Should the County have reentered the Premises under the .
provisions of subparagraph (b) of this Section, the County shiall
not be deemed to have terminated this Lease, the liability of
Lessee to pay rent or other charges thereafter accming, or
Lessee's liability for damages under any of the provisions
hereof, by 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 hy the
County of any notice pursuant to the unlawful detainer statutes
of the State of Califomia and the surrender of possession
pursuant to such notice shall not (unless the County electe 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 taUting possession of the
Premises as aforesaid, the County shall have the right, but not
the obligation, at Lessee's expense, to remove therefrom (i) all
or any part- of the buildings or stmctures placed on the Premises
by Lessee or its agents, and (ii) any or all merchandise.
Fixtures or Personal Propearty located therein and to place the
same in storage at a public warehouse at the expense and risk of
Lessee. The rights and remedies given to the Coimty in this
Section shall be additional and supplemental to all other rights
or remedies which the County may have under laws in force when
the default occurs.
X6.4 The County'B PftBflTttg Should the County terminate this
Lease and Lessee's right to possession of the Premises pursuant
to the provisions of subparagraph (a) or (c) of the imonediately
preceding Section, the County may recover from Lessee as damages
any or all of the following:
(a) The worth at the time of award of any unpaid rent
that had been earned at the time of such termination;
LA3.r«377l.Vl 30 Ot/lt/«T
(b) The worth at the time of award of the amount by
which the unpaid rent that would have been earned after
termiziation until the time of award exceed! the amount of such
rent loss Lessee proves could have been reaaonad>ly avoided;
(c) The worth at the time of award of the amount by
which the unpaid rent for the balance of the Term after the time
of award exceeds the amount pf such rent loss that Lessee proves
could be reasonably avoided;
(d) Any other amount necessary to condensate the.
County for all actual damages suffered by the County as a result
of Lessee's failure to perform its obligations under this Lease
or which in the ordinary course of things would be likely to
result therefrom, including, without limitation, any costs or
esqpense incurred by the County in (i) retadting possession of the
Premises, including reasonable attomeys' 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 commissions, 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 Califomia.
As used in subparagraphs (a) and (b) of tl^is Seetlbn, the
"worth at the time of award" is counted by allowing interest at
the maximum rate allowed by Califomia Law. As used in
subphragmph c of this Section, the "worth at the time of award
is computed by discounting such amoimt at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award
plus one percent (1%).
All rent, other tham monthly Base Rent shall, for the
purposes of calculating any amount due under the provisions of
subparagraph c of this Section, be confuted on the basis of the
average monthly amount thereof accming during the insnediately
preceding sixty (60) month period, except that, if it Idecomes
necessary to compute such rent before such a sixty (60) month
period has occurred, then such rent shall be confuted on the
basis of the average monthly amount hereof accming during such
shorter period.
16.5 Fixtures and Personal Property. In the event of
Lessee's default, all of Lessee's merchandise. Fixtures and
Personal Property shall remain on the Premises and, continuing
during the length of said default, the Coimty 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.
LA).7«s77i.v} 31 mtivn
1^-^ Thg^Comty*9 Seo;»rity,.Taterest. To secure Lessee's
perfoimance of any and all of Lessee's obligations under this
Lease, Lessee hereby grants the County an express first amd prior
contractual lien and security interest in Lessee's Fixtures and
Personal Property located on the Premises, and also upon all
proceeds of any insurance that may accme to Lessee by reason of
the destmction or damage such property. Lessee vraives the
benefit of all exenption laws in favor of this lien and security
interest. This lien and security interest is given in addition
to the County's statutory lien and is cumulative with it. Upon
the occurrence of an event of default, these liens may be
foreclosed with or without court proceedings by public or private
sale, so long as the County gives Lessee at least fifteen (15)
days' notice of the time'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
required by the applicable Uniform Commercial Code as the County
may request.
16.7 Lessee's Waiver. Notwithstanding anything to the
contrary contained in this Article, Lessee waives (to the fullest
extent permitted under law) any written notice (other than such
notice as this Article specifically requires) which amy statute
or law now or hereafter in force prescribes be given Lessee.
Lessee further waives any and all rights of redemption under any
existing or future law in the event its eviction from, or
dispossession of, the Premises for any reason, or in the event
the County reenters and takes possession of the Premises in a
lawful manner.
16.8 Interest. Any amoimts due from Lessee under the
provisions of this Lease which are not paid when due shaill bear
interest at the rate of four percent (4%) per annum over the
discount rate charged from time to time by the Federal Reserve
Bank (San Framcisco office), but not to exceed the maximum rate
which the Coimty is permitted by law to charge.
ARTICLE 17
DEFAULTS BY TBB COUNTYi REMEDIES
If the County shall neglect or fail to perform or observe
any of the terms, covenants, or conditions contained in this
Lease on its part to be performed or observed within thirty (30)
days after *rritten notice of default or, when more than thirty
(30) days shall be required because of the nature of the default,
if the County shall fail to proceed diligently to cure such
default after written notice thereof, then the County shall be
liable to Lessee for any and all damages sustained by Lessee as a
result of the County's breach; provided. hcS2fi2ax* <a) except with
respect to the County's indemnification obligations and except if
the County defaults under this Lease by granting any interest in
the Premises to another party during the term hereof or by
W3-7»S77I.V3 32
^9
entering the Premises, in either case in a manner not permitted
by this Lease (and in all of the foregoing situations described
in this ^j^f^yise (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 during the Initial Term, and, thereafter, out
of the Base Rent ("Net Income" for purposes of this Article
only), (b) no other real, personal or mixed property of the
County, wherever located, shall be subject to levy on any such
judgment obtained against the County, (c) if such Net Income is
insufficient to satisfy such judgment. Lessee will, not institute
any further action, suit, claim or demand, in law or in equity,
against the County for or on the accoimt of such deficiency, and
(d) such neglect or failure shall not constitute consent by the
County for Lessee to perform or observe such terms, covenants or
conditions at the County's expense. Lessee hereby waives, to. the
extent permitted under law, any right to satisfy said moaleJr '• t
judgment against the County except from Net Income and agrees
that on any action for damages. Lessee is limited to recovering
its actuad damages and may not recover any consequential or
punitive damages.
ARTICLE 18
ABANDONMENT
Lessee shall not vacate or aljandon the Premises at amy time
during the term of this Lease. If Lessee slrnll..iibsndesn..vaee^e >i>
or surrender the Premises, or be dispossessed by proceee^f 'laefi
or otherwise, any Personal Property or Fixtures belonging .to
Lessee and left on the Premises shall, at the option of the
County, be deemed abandoned. In such case, the County may
dispose of said Personal Property and Fixtures in any maimer
provided by Califomia law and is hereby • relieved of all
liability for doing so. These provisions shall not apply if the
Premises should be closed and business temporarily discontinued
therein on account of strikes, lockouts, or similar causes beyond
the reasonable control of Lessee.
ARTICLE 19
BANKRUPTCY
IS.l pight of Termination. Should any of the following
events occur, the County may terminate this Lease and any
interest of Lessee therein, effective with the commencement of
the event:
a. Proceedings are instituted whereby all, or
substantially all, of Lessee's assets are placed in the hands of
a receiver, tmstee or assignee for the benefit of Lessee's
creditors, and such proceedings continue for at least thirty (30)
days;
LA3.7^n7I.VJ -^J
5^
b. Any creditor of Lessee institutes judicial or
administrative process to execute on, attach or otherwise seize
any of Lessee's merchamdise, Fixtures or Personal Property,
located on the Premises and Lessee fails to discharge, set aside,
exonerate by posting a bond, or otherwise obtain a release of
such property within thirty (30) days; or
c. A petition is filed for an order of relief under
the Federal Bankmptcy Code or for an order or decree of
insolvency or reorganization or rearrangement under any state or
federal law, amd is not dismissed within thirty (30) days.
Any assignee pursuamt to the provisions of amy bankmptcy law
shall be deemed without further act to have assumed all of the
obligations of the Lessee under this Lease arising on or dfter
the date of such assignment. Any such assignee shall upon demand
execute amd deliver to the Coimty an instnunent confirming sUch
assun^tioh. 'I
19*2 Be west fQir lafonastioa. within ten (lO) days after
the County's request therefor. Lessee shall provide the County
and any mortgagee or proposed mortgagee of the County, as the
County shall specify, such financial, legad and business
information conceming any of the events described in this
Article as the County shall request.
ARTICLE 20
DAMAGE OR DESTRUCTION
20.1 gfffyaltg» Should the Fixtures, Personal Property or
inpi^bvements be damaged by fire, flood or any other peril, Lessee
shall restore such Fixtures, Personal Property or io^rovements to
substantially the same condition as they were in Immediately
preceding such daxnage or destmction. In the event of a total
destmction of the Premises so that the Premises are rendered
unusable, either party shall have the right to terminate this
Lease.
20.2 Constmction Proviaiena. In the event of any
reconstmction of the Premises required of Lessee pursuant to
this Article, Lessee shall, to the extent of available insurance
proceeds, repair or rebuild such improvements to substamtially
the same condition they were in immediately preceding such damage
or destmction.
20.3 NO Abatement of Rent. Lessee shall not be entitled to
any compensation or damages from the Coimty for loss of. use of
the whole or any part of the Premises, Fixtures and Personal
Property, or any inconvenience or annoyance occasioned by such
damage, reconstmction or replacement. Lessee hereby waives amy -
statutory rights of terTsiination which may arise l^y reason of any
partial or total destmction of the Premises.
LA3.7«Tr?.V» 34
ARTICLE 21
lailNENT DOMAIN
21.1 ^""'^rr^g^f ?r if all of the Premises is taken under
eminent domain proceedings by a party other than the County, or,
if less than all of the- Premises is taken under such proceeding
and the part taken substamtially impairs the ability of Lessee to
use the remainder of the Premises for the purposes permitted by
this Lease, then either the County or Lessee may terminate this
Lease as of the date that the condemning authority takes
possession by delivery of written notice of such election within
twenty (20) days after such party has been notified of the taUcing
or, in the absence thereof, within twenty (20) days after the
condemning authority shall have taken possession.
21.2 Continuation of Lease After CCTl?fagHtiTrjl If this
Lease is not terminated by the County or Lessee, it shall remain
in full force and effect as to any portion of the Premises
remaining, and:
(a) This Lease will end as of the date possession of
the part is taken by the public entity as to the part of the
Premises that is taJcen;
(b) Lessee is not entitled to the retum of any
prepaid rent; and
(c) At its cost, Lessee shall restoremeo muchr^f^^he
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 cozmection with any taking. Lessee
may prosecute its own claim by separate proceedings against the
condemning authority for damages legally due to it (such as the
loss of Fixtures that Lessee was entitled to remove and moving
expenses) only so long as Lessee's award does not diminish or
otherwise adversely affect the County's award.
21.4 Allocation of CondenmaMon Award for a Tgtal Taklner of
the Preinises. All awards for the total taking of the Premises or
proceeds from the sale made under the threat of the exercise of
the power of eminent domain sliall be the property of the County,
whether made as compensation for diminution of value of the
leasehold estate, for the taking of the fee, or as severance
damage; provided, however. Lessee shall be entitled to any award
for (i) the value of Lessee-constmcted improvements minus
depreciation by that percentage per year which is derived by
dividing 100 years by the length of the initial Term, and (ii)
loss of or damage to Lessee's traide fixtures, and removable
personal property. Notwithstanding the foregoing, any amount of
condemnation condensation due to Lessee pursuant hereto shall go
first, to the County to satisfy (i) the County's attomeys' fees.
LAS.7tS7Tl.V3 35 Ql/ltm
4 ^
appraisal fees, and other costs incurred in prosecuting the claim
for the award, (ii) the value of the reversion as of the ending
date, and (iii) any financial obligations of Lessee to the County
pursuant to the provisions of this Lease, and second, to any
creditors of Lessee to satisfy the remaining balance of any due
to such creditor frcan any the County• approved loam encumberino
the Premises. ^
ARTICLE 22
SALE OR MORTGAGE BY TBB COUNTY
22.1 gdle or wortqagg. From and after the Effective Date,
the County may at any time, without the consent of Lessee, sell,
purchase, exchange, transfer, assign, lease, encumber on convey
the County's' interest in whole or in part, in the Lease, the
Premises, the realty underlying the Premises or any portion of or
interest in the realty or indrovements on the Property '
(collectively referred to in this Jlrticle as a "Sale").
ARTICLE 23
SUBORDINATION^ ATTORNMENT
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
future permits or approvals issued by the United States of
America or any local. State or federal agency affecting the
control or operation of the Premises; Lessee shall be bound by
the terms and provisions of such permits or approvals. In
addition, this Lease is and shadl also be subject, subordinate
and junior to all ground leases, mortgages, deeds of tmst and
other security instruments of any kind now covering the Premises,
or any portion thereof.
23.2 AttQn*mgat« In the event any proceedings are brought
for foreclosure, or in the event of the exercise of the power of
sale under any mortgage or deed of tmst made by the County
covering the Premises, Lessee shall attom to the purchaser upon
any such foreclosure or sale and recognize such purchaser as
landlord under this Lease.
ARTIOiE 24
COUNTY'S RIGHT OF ACCESS
24.1 Accgss. The County, its agents, enployees, and
contractors may enter the Premises at amy time in response to an
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 comliance
with Environmental Laws), (d) supply cleaning service and any
other service that this Lease requires the County to provide,
(e) post notices of nonresponsibility or similar notices,
LAJ.7«577I.VJ 36
^1
(f) make repairs that this Lease requires the County to make, or
make repairs to any adjoining space or utility services, or make
repairs, alterations, or iziprovements to amy other portion of the
Property, (g) access any property owned or operated lay the County
that is adjacent to or near the Premises, (h) test, inspect,
investigate, remediate or monitor the Premises, amd any real
property adjacent to or near the Premises, for Contaminants,
Leachate or Landfill Gas, and (i) repair, maintain, install,
replace, investigate, inspect amd test amy equipment or machinery
relating to Contaminants, Leachate or Lamdfill (3as remediation,
testing or monitoring of the Premises or any real property
adjacent to or near the Premises; provided, however, all work
will be done as pron^tly as reasonably possible and so as to
cause as little interference to Lessee as reasonably possible.
24.2 Lessee Waivera Regarding Countv Access. Lessee waives
amy claim of injury or inconvenience to Lessee's business,|
interference with Lessee's business, loss of occupancy or quielt
enjoyment of the Premises, or any other loss occasioned by such
entry. If necessary,. Lessee shall provide the County with
keys-to unlock all of the doors in the Premises (excluding
Lessee's vaults, safes, and similar areas designated in writing
by Lessee in advance). The County will have the right to use any
means that the County may deem proper to open doors in the
Premises and to the Premises in an emergency.
QUIST jyiJIiUMU
If Lessee is not in breach under the covenants made in
this Lease, the County covenants that Lessee shall have peaceful
amd quiet enjoyment of the Premises without hindrance on the part
of the County. The County will defend Lessee in the peaceful amd
quiet enjoyment of the Premises against claims of all persons
claiming through or under the County.
ARTICLE 26
BOLDIKG OVER
If Lessee remains in possession of the Premises, for
any reason, after the expiration of the term of this Lease
without executing a new Lease, or after the County has declared a
forfeiture by reason of a default by Lessee, then such holding
over shall be constmed as a tenancy from month to month, subject
to all the conditions, provisions and obligations of this Lease
insofar as they are applicable to a month-to-month tenamcy. The
Base Rent payable during amy period of holding over shall be
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.
u3-7*377i.v: 37 ouitm
ARTICLE 27
NOTICES
27.1 Notices. Whenever in this Lease it shall be
required or permitted that notice or demand be given or served by
either party to this Lease to or on the other, such notice or
demand shall be in writing, mailed or delivered to the other
party at the addresses specified in Article 1 (SUMMARY OF BASIC
LEASE PROVISIONS). Mailed notices shall be sent hy United States
Postal Service, certified or registered mail, postage prepaid and
shall be deemed to have been given, delivered and received three
(3) business days after the date such notice or other
communication is posted hy the United States Postal Service. All
other such notices or other communications shall he deemed given,
delivered and received upon actual receipt. Either party pay, by
written notice delivered pursuant to this provision, at any time
designate a different address to which notices shall be sent.
27:2 Default Notices. Notwithstanding anything to the
contrary contained within this Article, any notices 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 h\it shall be deemed to have h^en 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 mamaging en^loyee or by the County
mailing a copy of such notice to Lessee in the manner specified
in the preceding Section.
ARTICLE 28
NONDISCRIMINATION
Lessee hereby covenants by amd.for itself, its
successors, assigns and all persons claiming under or through it,
that-this Lease is made amd 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 shall. Lessee
itself, or any person claiming under or through it, establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, sublessees, subtenants or
vendees in the Premises.
ARTICLE 29
AFFIRMATIVE 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 coitply with
the Affirmative Action Prograun for Vendors as set forth in
LA3.7«am.vj 38 oi/iim
a2™fni-?^^?*=^°S 2^ Section 84) of th. San Diego the
f HJ!*"^ program is incorporated in thie
p™f^«m^,^r v.«S5^*°f?; v.* Affinaative Action
ARTICLE 30
WAIVER OF RELOCATION ASSISTANCE BENEFITS
^r,^«^-^ ^^'LSf^'^?^^'^*^" Afffflfftaace Pengf4ti. Lessee is hereby informed amd ac)cnowledges the following:
^ ^ entering into this Lease and becoming a tenant
of the County, Lessee may become entitled to receipt of •
relocation assistance benefits ("Relocation Benefits") pursuant
to the Federal Uniform Relocation Assistance Act (42 U S C if
4601 et seq.) and the Califomia Relocation Assistance'Law* (Cal
GOV. Code. SS 7260 et seq.), or either of them (collectively the
"Relocation Statutes"), should: the County at some tiS makJ'use
of the Premises in such a way as to "displace" Lessee from the
Premises. Pursuant to the Relocation Statutes, the County may
then become obligated to make such payments to Lessee even where
such displacement of Lessee does not otherwise constitute a
breach or default by the County of its obligations pursuant to
this Lease *
5' « Under the Relocation Statutes in.effect asi90frthe-r
date hereof. Relocation Benefits may include payment to sueh a
"displaced person* of (i) the actual amd 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) paiyment in lieu
of moving eacpenses of not less than One Thousamd Dollars ($1,000)
or more than Twenty Thousamd Dollars ($20,000).
^ , 3;-2 t'eSflee's Waiver and Releaae off R^lg^n^j^p
BfPtfita. 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 Coimty from amy 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 amy condemnation or pre-
condemnation actions taken hy the County or amy 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.
UU-7W7I.V3 39
ARTICLE 31
RECORDS, ACCOUNTS AND AUDITS
a. Lessee shall, at all times during the term of this
Lease, keep or cause to be-kept, tme and conplete boolts, records
and accounts of all f inamcial 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 amd disposition of all trash collected amd
disposed of by Lessee in the operation of its business. Said
records must be supported l3y reasonable source documents.
b. All Lessee's ]x)o)cs or accounts and records shall
be kept and made available at one location within the liidits of
the Coimty of San Diego. The County shall liave the right at any
reasonable time to examine and perform audits of Lessee'ij records
pertaining to its operations on the Premises. The cost of salid
audits shall be home by the County; however. Lessee shall
provide to the County at Lessee's expense, necessary data to
enable the County to fully comply with each and every requirement
of the State of Califomia or by the United States of America for
information or reports relating to this. Lease amd to Lessee's use
of the Premises.
ARTICU 32
GENERAL PROVISIONS
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 goveming
instruments, without the need for any further action, and that
the person(s) executing this Lease on behalf of Lessee are the
duly designated agents of Lessee amd are authorized to do so.
32.2 Brokers. Lessee %rarrants that it has had no
dealings with amy real estate broker or agent in connection with
the- negotiation or execution of this Lease. In the event amy
broker other tham the brokers aclcnowledged in-iinriting by the
County maike claim for monies owed. Lessee shall Indemnify, defend
and hold the Coimty harmless therefrom.
32.3 Captions. The captions, headings amd index
appearing in this Lease are inserted for convenience only amd in
no way define, limit, constme, or describe the scope or intent
of the provisions of this lisase.
32.4 The Countv Approval. Except where stated in this
Lease to the contrary, the phrases "the County's approval," and
"the County's written approval* or such similar phrases shall
mean approval of the County's Lease Administrator or said
Administrator's representative as authorized by said
administrator in writing.
LA3.7«5T7l.Va 40 0WH/f7
32.5 Pwii^t^i ReatdAfi- in the event of a default
under this Lease, each party's remedies shall be limited to-those
remedies set forth in this Lease; any such remedies are
cumulative and not exclusive of any other remedied under this
Lease to which the non-defaulting party may he entitled.
32.6 Entire Aore«nfn^ This Lease, together with all
addenda, exhibits and riders attached hereto, constitutes the
entire agreement between the parties with respect to the subject
matter hereof, and all prior or contemporaneous agreements,
understandings and representations, oral or written, are
superseded.
32.7 Estoppel Certifieat:^. Lessee shell at anyitime
during the term of this Lease, within five (5) business days of
written notice from the County, execute and deliver to the County
a statement in writing certifying that this Lease is unmodified
and in full force and effect or, if modified, stating the nature
of such modification. Lessee's statement shall include other
details requested by the County., such as the date to which rent
and other charges are paid, the current ovmership amd name of
Lessee, Lessee's )cnowledge conceming any outstamding defaults
with reapedt to the County's obligations under this Lease and the
nature of such defaults if they are claims. Any such statement
may be relied upon conclusively by any prospective purchaser or
encumbrancer of the Premises. Lessee's failure to deliver such
statements within such time shall he conclusive, upon Lessee that-
this Lease is in full force and effect, except to the ^leene any
modification has been represented hy the County, and that there ^
are no uncured defaults in the County's performance, and that not'
more than one month's rent has been paid in advance.
32.8 Exhibitff. All exhibits referred to in this Lease
are attached hereto and incorporated by reference.
32.9 forot Wftjfvri. in the event either party is
prevented or delayed from performing any act or discharging any
obligation under this Lease, except for the payment of rent by
Lessee, because of amy 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 laibor, materials or
equipment, acts of God, governmental restrictions, regulations or
controls, any hostile govemment actions, civil commotion and
fire or other casualty, legal actions attacking the validity of
this Lease or the County's occupancy of the Premises, or any
other casualties beyond the reasonable control of either party
except casualties resulting from Lessee's negligent operation or
maintenance of the Premises ("Force Majeure"), performance of
such act shall be excused for the period of such delay, 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
UU-7W7t.Vl 41 oc/iim
include any bankmptcy, insolvency, or other financial inability
on the part of either party hereto.
32.10 Goveming ^aw. This Lease shall be govemed,
constmed and enforced in accordance with the laws of the State
of Califomia.
32.11 Interpretation. The parties have each agreed
to the use of the particular language of the provisions of this
Lease, and any question of doubtful interpretation shall not be
resolved by any mle of interpretation providing for
interpretation against the parties who cause an uncertainty to
exist or against the draftsperson.
32.12 Joiat »Pd Si^rml J^i^iliXY- if more t^han
one person or entity executes this Lease as Lessee, each of them
is jointly and severally liable for all of the obligations of
Lessee under this Lease. I i
32.13 Lessee's ^ftffft ^^iniatration. Lessee
confirms that Lessee's Lease Administrator has been given full
operational responsibility for conpliance with the terms of this
Lease. Lessee shall provide the County with a %n:itten schedule
of its normal hours of business operation on the Premises, and
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 amd Lessee's
operations on the Premises.
32.14 Lioruidatefl gtl Any payments by Lessee
to the County under this Lease described as liquidated damages
represent the parties' reasonable estimate of the County's actual
damages under the described circumstances, such actual damages
being uncertain and difficult to ascertain in light of the
impossibility of foreseeing the state of the leasing market at
the time of the various deadlines set forth herein. The County
may, at its election, take any of the liquidated damages assessed
in amy portion of this Lease as direct monetary payments from
Lessee and/or as an increase of rent due from Lessee under this
Lease.
32.15 Modification. The provisions of this Lease
may not be modified, except by a written instrument signed by
both parties.
32.16 Partial Invalidity. If any provision of this
Lease is determined hy a court of con^etent jurisdiction to be
invalid or unenforceable, the remainder of this Lease shall not
be affected thereby. Each provision shall be valid and
enforceable to the fullest extent permitted by law.
iA3.T*mi.v3 42 outvn
32.17 Egymeata. Except as may otherwise be
expressly stated, each payment required to be made by Lessee
shall be in addition to and not in substitution for other
payments to be made by Lessee.
32.18 gttoctggorg » Aggiqai- This Lease shall be
binding on an inure to the benefit of the parties and their
successors and assigns, except as may otherwise be provided in
this Lease.
32.19 Tiae Of gggeact. Time is of the essence of each amd every provision of this Lease.
32.20 HfilZlZ- 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, ihe waiver by
the Coimty of. any breach of any term, covenant or condition '•
contained in this Lease shall not be deemed to be a waiver of
such term, covenamt or condition of any subsequent breach
thereof, or of any other term, covenant or condition contained in
this Lease. The Coimty's subsequent acceptance of partial rent
or performance by Lessee shall not be deemed to be an accord amd
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«;;the'!ipart of
the County to require exact or full amd complete compliance wi<th
amy of the covenamts, conditions of agreements of this Lease
shall not be constmed as in amy manner changing or waiting the
terms of tliis Lease or as estopping the County from enforcing in
full the provisions hereof. No custom or practice which may
arise or grow up between the parties hereto in the course of
administering this Lease s3mll be constmed to waive, eiitop or in
any way lessen the right of the County to insist upon the full
performance of, or compliance with, any term, covenant or
condition hereof by Lessee, or constmed to inhibit or prevent
the rights of the County to exercise its rights with reitpect to
any default, dereliction or breach of this Lease by Lessee.
32.21 Purchaae Aorgeaent. Nothing COntaixied in
this Lease shall limit, modify or reduce the covenamts,
agreements or obligations of Lessee or Allied, or the C(iunty's
rights and remedies, under that certain Purchase and Saj
Agreement dated as of August 12, 1997 (as amended from
time, the "purchase Agreement"), by and between the
seller, and Allied Waste Industries, Inc., a Delaware
("Allied"), as purchaser (which Purchase Agreement has
assigned to, and assumed by. Lessee as it relates to,
things, the Premises), including, without limitation,
or Lessee indemnification obligations and any County
of representations and warranties set forth therein. 14 the
LA3-7ti771.V3 43
e
tiime to
as
cdrporation
l>een
other
Allied
Courty
axiiong
aiy
di£ claimers
os/tim
event of a conflict between the terms of this Lease amd the
Purchase Agreement, the Purchase Agreement shall control.
32.22 q^un^erparts. This Lease may be executed in
any number of counterparts, each of which is deemed an original
and all of which, when taken together, constitute one and the
same instrument.
32.23 Approvals. All CouTity approvals under this
Lease must include the approval of the Assistant Deputy Director
- Aviation.
i
LA3*7«5m.V2 44 (K/iim
IN WITNESS WHEREOF, the County an
Lease as of the day and year fir executed this
THE COUNTY: THE COUNTY OF SAN
a politieal sut)division of. the State of Califomia
By:
iwrence B. Prior
Chief Administrative Officer
APPROVED AS TO FORM. AND LEGALITY
LESSEEI STATION, INC.,
corpor^A^on
telA#»
Authorized Repveeeneettse
By:
Don Swierenga,
President
I I
45 ooiim
90
EXBIBIT A
DESCRIPTION AND PLAT OF TBB PREMISES
Parcel No. 97-0085-Al
That portion of McClellan-Palomar Airport, in the City of
Carlsbad, Coimty of Sam Diego, State of Califomia. described in
deed to the County of San Diego, recorded January 18, 1974 as
File/Page No. 74-014190 in the Office of the County Recorder of
said County, described as follows:
BEGINNING at the most Southerly comer of land described' in deed
to the City of Carlsbad recorded June 30, 1982 at File/Pa^e No.
82-201566 in said County Recorder's Office; thence alongj the
Southerly boundary of said Carlsl^ad land. North 78*42'04"| West,
635.35 feet to a point on the Easterly line of a 48.00 foot road
and utility easconent granted to said City of Carlsbad on said
1982 deed; thence along said Easterly line. South 11*17'56" West,
519.92 feet to the beginning of a tangent 326.00 foot radius
curve, concave Easterly; thence Southerly, along the arc of said
curve, through a central angle of 54*45'22", a distance of'311.55
feet; thence tangent to said curve South 43*27'26" East, 112.20
feet; thence leaving said Easterly line. North 51*31'08" East,
235.72 feet; thence North 61*24'19" East, 355.40 feet; thence
North 57*22'14" Bast, 246.04 feet to the beginning of a tangent
50.00 foot radius curve concave Westerly; thence Northeasterly
along the arc of said curve, through a central angle of
88*35'04*, a distance of 77.30 feet; thence tangent to said curve
North 31*12'50" West, 51.72 feet; thence North 53*37'13" West,
169.04 feet; thence North 4"55'29" East, 93.29 feet to the POINT
OF BEGINNING.
LA3-WS77I.VJ A- 1 OUiam
PLAT OF TBS* PREKISJSS
tSEB ATTACKED]
uo.'wnt.va A-2 oviim
1^
PALCTMAP..
I I • I "*
03
EXHIBIT B
FEDERAL AVIATION ADMINISTRATION REQUIREMENTS
In the event there is any conflict between the provisions in
this Exhibit amd the' other provisions in this Lease, the
provisions in this Exhibit shall take precedence.
a. Lessee for itself, its heirs, personal
representatives, successors in interest, amd assigns, as a part
of the consideration hereof, does hereJsy covenant amd agree as a
covenant mnning with the land that in the event facilities are
constmcted,, maintained, or otherwise operated on the said
property described in this Lease for a purpose for ^ich tai DOT
program or activity is extended or for another purpose involving
the provision of similar services or benefits. Lessee shall
maintain and opemte such facilities and services in coQqpl'iance
with all Other requirements incosed 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 he amended.
b. Lessee for itself, its personal representatives,
successors in interest, amd assigns, as a part of the
consideration hereof, does hereby covenant amd agree as a
I covenant running with the land that: (1) na person on«tbe».grounds
\^ of race, color, or national origin- shall be exclude* f«oai«^
participation in, denied the benefits of, or be otherwise
subjected to discrimination in the use of said facilities, (2)
that' in the constmction of any improvements on, over, or under
such land and the fumishing of services thereon, no person on
the grounds of race, color, or national origin shall he excluded
from participation in, denied the benefits of, or otherwise be
subject to discrimination, (3) that Lessee shall use the Premises
in con^liamce 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, the County shall have the right to
terminate this Lease and to re-enter and repossess said lamd 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 fumish its accommodations and/or
services on a fair, equal and not unjustly discriminatory hesi.a
to all users thereof and it shall charge fair, reasonable amd not
lAi'-nsni.vi B-l oi/iim
unjustly discriminatory prices for each unit or service;
PROVIDED, THAT Lr^ssee may be allowed to make reasonable amd
nondiscriminatory discounts, rebates or other similar type of
price reductions to volume purchasers.
e. Non-cbmpliamce with Provision d above shall
constitute a material breach thereof and in the event of such
noncon^liance the County shall have the right to terminate this
Lease and the estate hereby created vrithout liability therefore
or at the election of the County or the United States either or
both said Governments shall have the right tq judiciaaiy enforce
said Provisions.
f. Lessee agrees that it shall insert the abdve five
(5) Provisions in amy sublease, contract or agreement by which
said Lessee grants a right or privilege to any person, f^rm or
corporation to render accommodations amd/or services to the '
public on the Premises herein leased.
9. 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,
creed, color, national origin, or sex be excluded from
participating in any employment activities covered in 14 CFR Part
152, Subpart E. Lessee assures that no person shall he excluded
on these grounds from participating in or receiving the services
or benefits of any program or activity covered by this subpart.
Lessee assures that it will require that its covered
suborganizations provide assurances to Lessee that they similarly
will undertake affirmative action program* and that they will
require assurances from their suborgamizations, as required by 14
CFR Part 152, Subpart B, to the same effect.
h. The County reserves the right to further develop
or improve the landing area of the Airport as it sees fit,
regardless of the desires or view of Xjessee and without
intierference or hindrance.
i. The County reserves the right, but shall not he
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 amd control all
activities of Lessee in this regard.
j. This Lease shall be subordinate to the provisions
and requirements of any existing or future agreement between the
County and the United States, relative to the development,
operation or maintenance of the Airport.
k. There is herelay reserved to the County, its
successors and assigns, for the use amd benefit of the public, a
right of flight for the passage of aircraft in the airspace above
the surface of the Premises herein leased. This public right of
LA3.7nTn.V3 B-2 ot/itm
0*^
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 fr<xn or operation on the Airport.
1. Lessee agrees to con^ly with the notification and
review requirements covercMi in Part 77 of the Federal Aviation
Regulations in the event future constmction of a building is
planned for the leased Premises, or in the event of any plamned
modification or alteration of any present or future building or
stmcture situated on the leased Premises.
m. Lessee, by accepting this, esqpressly agrees for
itself , its successors and assigns that it will not erect juor
permit the erection of any stmcture or object, nor permit the
groitfth of any tree on the land leased hereunder that conflicts
with Part 77 of the Federal Aviation Regulations. In thelevek^t
the aforesaid covenamts are breached, the County reserves the
right to enter upon the lamd leased hereunder amd to remove the
offending stmcture or object and cut the offending tree, all of
which shall be at the esqpense of Lessee.
n. Lessee, by accepting this Lease, agrees for
itself, its successors and assigns that it will not maike use of
the leased Premises in any manner which might interfere with the
landing and taking off of aircraft from said Airport or otherwise
constitute a hazard. In the event the aforesaid covenant is^*^
breached, the County reserves the right to enter upon the*^
Premises hereby leased and cause the abatement of such
interference at the expense of Lessee.
o. It is understood and agreed that nothing hereis^i
contained shall be constmed to grant or authorize the granting--
of an exclusive right within the meaming of Section 308a of the "
Federal Aviation Act of 1958 (49 U.S.C. 1349a).
p. This Lease amd all the provisions hereof shall be
subject to whatever right the United States Govemment now has or
in the future may have or acquire, affecting the control,
operation, regulation and taking over of said Airport or the
exclusive or non-exclusive use of the Airport by the United
States during the time of war or national emergency.
U3.7«JT»|.V3 B»3 otfitm
1^
EXBIBIT C
MCCLELLAN-PALOMAR AIRPORT
INDUSTRIAL AREAS
DEVELOPMENT STANDARDS
TABLE OF CONTENTS
1. LAND USES ; 3^
a. Accepted Uses , ' i
b. Prohibited Uses ! ! l
2. CONDUCT OP USB . i . . . 1
3. BUILDING SETBACKS 1
4. BUILDING CONSTRUCTION I. .'l. 1
a. Coverage 3^
b. Exterior Walls ! . ! ! 1
5. HEIGHT LIMIT 2
6. MINIMUM DISTANCE BETWEEN BUILDINQS 2
7. MULTIPLE-OCCUPANCY BUILDINGS 2
8. REQUIRED SCREENING 2
a. Parking Areas 2
b. screening Types 2
c. Roof Tops .2
9. HEIGHT OF FENCES, WALLS, AND PLANT MATERIALS 3
a. Fences and Walls 3
b. Plant Materials 3
10. OFF-STREET PARKING AND LOADING 3
a. Parking 3
b. Loading Space 3
c. Dimensions 3
d. Location 3
e. Improvement of Parking Spaces and Parking Areas . . . ! 3
f. Marking of Parking Spaces 3
g. parking Restrictions 3
11. ON-SITE CIRCULATION 4
a. Ingress amd Egress 4
b. Drive%*ay Aprons 4
c. Pedes triam WaLkways 4
12. SIGNS 4
a. Identification Signs 5
b. Directional Signs 5
IA3.7<S77I.V3 C-1
V
c. Safety Signs ' ' I
d. Real Estate Signs ^
e. Sign Design 5
13. TRASH CX)LLECTION AREAS 5
14. LANDSCAPINQ 5
a. Required Lamdscaped Areas . . . * 5
b. Landscaping Design 6
c. Irrigation 6
15. OTHER RECSULATIONS ^
tAJ.7W7l.VJ ^ *
MCCLELLAN-PALOMAR AIRPORT
. INI>USTRIAL AREAS
DEVELOPMENT STANDARDS
1. USBS
a. Accented Ua^f. The following primary uses will be
acceptable subject to approval of the County amd cosqpliamce with
these development standards and the performamce stamdards
specified for McClellan-Palomar Airport:
(1) Research and development uses.
(2) Industrial and manufactur^ing uses.
(3) Warehousing, storage, and wholesaling.
(4) Offices, services, sales activity, and other
necessary buildings amd uses appurtenamt to permitted uses
specified in 1, 2, and 3 above.
(5) Signs pertaining only to the use conducted within
buildings or signs pertaining to the sale or lease of the
premises on which they are located in accordamce with standards
contained herein.
(6) Off-street parking amd loading, vehicular and
pedestrian circulation, amd landscaping in accordance with
standards specified herein.
(7) On the same leasehold or building site with a
permitted industrial park use, one dwelling unit occupied
exclusively by a caretaiker or superintendent of such use amd
his/her family may be permitted upon approval of the County.
(8) Finance, insurance, real estate and business
services, provided such services involve primary emphasis on
processing or production, to the exclusion of services rendered
to customers on the premises, to which end such offices shall be
called process offices.
b. Prohibited Uses. Uses not falling into the above
categories are not permitted unless specifically set forth in the
Lease.
2. ^qrmxscT OF USE. All manufacturing operations shall be
conducted within am enclosed building. All storage shall be
conducted within a totally enclosed building or enclosed by a six
(6) foot high or higher, view obscuring fence or wall. This
fence shall not encroach into any required exterior yard. No
storage shall exceed the height of the*wall or fence.
LA3.7«S77I.V1 C-3 ot/iim
3. fUITfP^^^ SETBACTg. No building, stmcture (except a wall or
lamdscape feature--or fence) sliall at any time be erected or
maintained on any site within twenty-five (25) feet from any' site
boundary abutting any street.
4. fmir^-^a CQNSTRUCTTnM.
a. ^qveraoe. All buildings, including accessory )3uildings '
amd stmctures, amd all paved areas shall not cover more than
ninety percent (90%) of the net lot area.
b. ^terior Walla. Any building erected within the
industrial park shall conform to the following:
• I
(1) Exterior Walls shall he concrete or masonry except
where specific approval is given by the County for ,
architecturally acceptable alternate materials and design.' ' I
(2) Exterior walls shall be painted or treated in a mamner
acceptable to the County.
5. fffj^HT LIMIT. No building or stmcture shall exceed two
stories or 35 feet in height, whichever is the lesser; provided.
however, buildings or stmctures located one hundred (100) feet
or more from amy property line and exceeding 35 feet in height
may be permitted upon approval by the County.
6. MTWIMOM DISTANCE BETWEEN BUILDINGS. These-Shaia-^MK^S
minimum ten (10) feet between all buildings located on the sasie
site.
7. Mm^TTPLE OCCUPANCY BUILDINGS. Multiple occupancy of
buildings is permitted. In case of multiple occupancy,
off-street parking, off-street loading, outdoor trash facilities,
and on-site vehicular and pedestrian circulation systems must be
shared in common; provided that separate such facilities may be
perinitted hy the County where justified and when such prevision
does not otherwise deviate from the specifics and intent of these
development stamdards.
8. ^OUTRgP SCREBNINQ-
a. |»arkina Areas. Where parking space areas are located
so as to be visible from a street, there shall be a landscaped
screen at least five (5) feet in width, planted with trees,
shrubs, ground cover, or combination of landscaping and aggregate
materials that will significantly soften the view of such areas.
Such landscaping may be credited to the ten percent (10%)
requirement of Paragraph 14. .
b. gfireenino Types. Where screening is required herein it
shall consist of one, or any combination of the following types,
in an aesthetically designed configuration.
LAJ.79377I.V2 C-4 QVlim
go
(1) Walls: A wall shall consist of concrete, stone, brick,
tile, or similar type of solid masonry material a minimum of four inches thick.
(2) Berms: A berm shall consist of landscaped mounded earth
designed in such a way as to provide desired screening effect.
(3) Fences, solid: A solid fence shall be constmcted of masonry.
(4) Fences, open: An open weave or mesh type fence shall be
combined with plant materials or view obscuring slats to form an opaque screen.
(5) Planting: * Plant materials, when used as a screen' shall
consist of compact evergreen plants. They shall be of a iJcind, or
used in such a manner, so as to provide screening having av '
minimum thicJcness of two (2) feet within eighteen (18) months '
after initial installation.
c. Roof TOPS. Roof top equipment such as HVAC units shall
be screened from view from both street level amd above. To that
end, all duct work and electrical conduits are to be rim
undemeath the roof surface. In addition, the equipment should
be clustered amd roof top color shall be considered during the
design of the buildings.
9. HEIGHT or FENCES, WALLS. AND PLANTED MATERIXl.^.
a. Fences and Walla. No decorative or screening fences or wall's shall exceed the following height limits above ground
elevation:
(1) Within required front or side yard setback abutting a
street: Forty-two (42) inches except within five (5) feet of the
intersection of a drive%ray and a street, a driveway and a
walkway, a driveway and parking area circulation aisle, or two
(2) driveways in which cases the height limit shall be thirty
(30) inches. '
(2) All other areas: Eight (8) feet, unless otherwise
approved by the County.
b. Plaat Matcriftlg. Except where used as am opaque
screen, plant materials may be permitted at any height not
constituting a hazard to operation of aircraft based on the
judgment of the County.
10. OFF-STREET PARRINC AMD LOADING SPACE.
a. parking. All parking shall be designed to be provided
at the ratio of one (1) off street parking space per three
hundred (300) square feet of gross floor area If the proposed
UJ.713771.V3 C-5 f^ty^
development of the Premises is recognized as a standard warehouse
or manufacturing use, paved parking may be provided at the ratio
of one space per six hundred (600) square feet. However, the
remainder of the land area necessary to provide an ultimate
parking ratio of one (l) space per three hundred (300) square
feet of gross floor must be available for future parking
expamsion. This area may be made a part of the lamdscaped area
of the Premises until such time as the additional parking is
needed, however it will not be considered as part of the required
10% landscaping coverage outlined in Clause 14. (LANDSCAPINQ)
below.
b. goading Space. All buildings With a gmss floor area
greater than one 'thousand (1,000) square feet shall he served
with a loading area* %d.th minimum dimension of twenty (20) feet by
twenty (20) feet. One (1) additional loading area shall be
provided for buildings with a gross floor area exceeding twelve
thousand (12,000) square feet. Loading areas shall not be placed
in any required yard areas or parlcing spaces.
c. p^mensions. Each parking space shall be a minimum of
nine (9) feet wide and twenty (20) feet deep.
d. location. All parking amd loading spaces shall be on
the same leasehold Premises with the building or stmctures they
are to serve.
e. improvement of Parking Spaces Uttd ff^gK
(1) All parking spaces or areas, loading berths,
approaches, and drivewys shall be adequate for anticipated wlweh^
loads, with a stmcturaa section designed by a.soils engineer^
and constmcted of Portland Cement (concrete over a base course
of adequate stability.
(2) All parking spaces abutting the perimeter of the
property shall be provided with securely installed concrete wheel
Ijarriers or concrete curbs not less than four (4) inches in
height.
t. parking of Parklno Spaces. The location of each
parking space shall be identified and maintained by permanent
surface markings.
g. parking Restrictions. On street P^f^ing within the
Industrial Park shall conform with the current City of Carlsbad
Code.
11. '^H'glT? CIRCULATION.
a. m^^^' *nd Egress.
LA3-7«S77I.V3 "
(1) On-site driveways shall be located so as to serve
multiple purposes such as parking and loading areas wherever
possible.
(2) On-site driveways shall have an unobstmcted paved
surface minimum width of not less than fifteen (15) feet per
one-way drive, or twenty-four (24) feet for two-way drive.
(3) Parking, loading areas, amd driveways shall he arramged
to permit vehicular traffic to move into and out of par]cing and
loading areas, driveways, and rampa without the backing of any
vehicle onto a street.
(4) Unobstmcted amd adequate maneuvering aisles or
tum-around areas shall be provided as necessary to insure that
all vehicles shall enter the street or highway in a forward
mamner.
(5) Parking areas, driveways, maneuvering aisles, ramps,
and tum-around areas shall be kept free amd clear of
obstmctions at all times.
b. PriYgwfty.. Aproai. AII 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-vray line with minimum width of
fifteen (15) feet at the curb line for one-way traffic and thirty
(30) feet for two-way traffic according to Standard Drawing G-16.
Where driveway aprons will serve semi-trailers, they shaai be no
less than twenty-four (24) feet and thirty-six (36) feet
respectively, and may be constmcted as ailley aprons with
appropriate curb returns.
e. pedestrian Walkwava. Easily accessible and adequate
pedestrian wallcways consisting of concrete, decorative gravel,
paving bloc)cs, or other aesthetically pleasing materials shaQl be
provided.
12. 22SNS.
a. i^dentifieation. Not more tham two (2) signs
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.
(1) One (1) such sign may be a single-face sign mounted on
and parallel to a wall of the main building. Such sign siiaill be
proportional to the size of the building wall upon which it is
mounted hut shall not exceed an area of forty-eight (48) square
feet. Such a sign may not extend above the top of the parapet
wall, the roof line at the wall, the eaves of the building, or
portion of the building to which attached, whichever is
applicable; nor shall the sign face protmde more tham eighteen (
LA3.7W7I.VJ C-7 ouitm
e giqn Desi^. Identification signs must be designed so
as to provide uniformity of layout, lettering, graphics; size,
shape, color, method of installation and constmction. The
lollVion and design of all identification signs shall ^e 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. TTMn ^nT,T.BCTTQir AREAS. All trash collection "^^^^«
located outside of areas requi to be devoted to landscaping
aSd shall be enclosed by a Sail and heavy duty solid gates not
iSss than six (6) feet in height. Portland cement concrete,
floors knd aprons are required in.trash collection areas.
14. r-«>wp,^eAPlNG. ! '
required and submitted for approval of the County. ^11 isiterior
va?d8 except for driveways shall be landscaped and maintained,
h^^erTlnno event shall the total landscaped area be less than
tSS^ercent (10%) of the gross lot area. All areas not in a
dSvSS^y or sidewalk between street curb and the property line
siXllhl landscaped and maintained by Lessee and may be included
in the above mentioned ten percent on-site requirement.
b. j.ypdgeapino Design.
(1) coverage: At least seventy-five P^ff^J, <2!ii;SM«S?io«
m,rface landscaped shall be planted with*m con?»tib»l-t:oBtoination
of trees shmbi? vines, floSers or ornamental ground cover. The^v
fenlinlli: ^Iclude teatures such as pedestrian ^l^^^yj'J^^l^
g^lings, sculptures, pools, fountains, outdoor seating areas,
de?orativ4 paving, and gravel areas, interspersed with planting
areas.
(2) spacing: Plant material spacing shall conform $0 the
following standards: A minimum of twenty-five (25) feet from the
back of sidewalk at street intersections to the center of the
first trSe or the center of the first large shrub ten feet in
height or more at maturity,
c wioation. Prior to commencing any use of the
r>^ooertv reouired landscaped areas shall be planted and a
Silent t^ sprinkler system or similar watering system or
ISJTcS adeSate to^ovid^ water necessary to properly maintain
the partt^Sr plant^materials used, shall be constmcted and
thereafter maintained in good working order.
15. ^TTT? ^gPt^TIONS. In addition to the provisdons oj^these
policiM promulgated by the Board of Supervisora which regulate
l>3.7f57n.Vl ^
the administration, land use, constmction, and development of the County Airports.
In the event there is any conflict between these Development
Standards and the regulations, la%w, and/or ordinamces of the
above mentioned agencies, the most restrictive shall apply.
LA3.7W7I.VJ C-10 oi/iim
EXBIBIT D
MCCLELLaN>Pai.QMAR AIRPORT
INDUSTRIAL Alfp AVIATION AREAS
PERFPRMMTCB STAMPWS
TAPLB or CQwrmg
PAGE
1. NOISE 1
a. standards . 1
b. Method of Measurement 1
c. Sound Ijevel 1
d. Aircraft Engine Runups , . . . l
a. Exemptions ,. 1
2. GLARE J . y . 1
a. Standards l
b. Prohibitions ........ 1
3. ELECTRC^AGNETIC INTERFERENCE 2
a. Standards 2
b. Method of Measurement 2
4. VIBRATION 3
a. Standards 3
b. Method of Measurement - . . 3
5. TOXIC MATTER 3
a. Standards ....... 3
b. Method of Measurement • - 3
6. ODOR *
7. SMOKE, PARTICULATE MATTER, AND OTHER AIRv^CONTAMtNANTS . . 4
8. LIQUID WASTES . 4
a. standards 4
b. Prohibitions 4
9. FIRE AND EXPLOSIVE HAZARDS 4
10. OTHER REGULATIONS 4
LA3-7*S77I.V2 D-1 ovivn
MCCLELLAN-P|ILQMAR AIRPORT
INDUSTRIAL AND AVIATION AREAS
PSRFORMANCB gTAWPWg
1. KQXfiS.
a. Stgadsrdg* At no point on or beyond the boundairy of
the leasehold Premises shall the maximum sound level resulting
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
sound level shall be the ambient noise level. The ambient noise
level shall be measured when the alleged noise violation source
is not operating. i
b. Method of Meaaurenent; - Noise Shall be measured with a
sound level meter having an A-weighted filter constmcted in '
accordamce with specifications of the American Nationail Standards
Institute for type S-2A general purpose sound level meters.
(1) In^ct noise shall l>e measured using the fast
response of the sound level meter. Iiqpact noises are •
intermittent sounds such as from a punch press or drop-forge
haunmer.
(2) Continuous noise shall be measured-using the slow response of the sound level meter.
c. Sound Level (Noise Levell. Sound level shall mean the
weighted soimd pressure level obtained by the use of a sound
level meter amd frequency %reighting network as -specified in
American National Standards Institute specifications for sound
level meters (ANSI.4-1971, or the latest revision thereof). If
the frequency weighting easployed is not indicated, the
A*weighting is implied.
d. Aircraft Engine ^^\ip^. Lessee shall restrict aircraft
engine tests amd maintenance runups performed on the leasehold
Premises to idle power settings. Lessee shall restrict aircmft
tests amd maintenance runups at greater than power settings to
locations on the Airport and during the time of day authorized in
writing by the County.
e. Exenptioi^n. The following sources of noise are exenpt
from the specified maocimum sound level:
Lessee;
(1) Tramsportation vehicles not under the control of
(2) Occasionally used safety signals, waming devices,
and emergency pressure relief valves; and
LA3.7«mi.v3 D-2 <tt/itm
920 - 30,000 Megacycles 2000 Microvolt/Meter
irrespective of the above standards, any electromagnetic
disturSSci that causes interference with radio transmissions,
aimmfTinstruments, navigational aids, or other^electromagnetic
receptors essential to aircraft operations shall be modified or
abated upon request of the County.
H ^^f^^i^A Maaaurement. The level of radiated
electmmagSSticiSLrfSmSS shall be measured by using standard
lield s??Ingth measuring techniques. The maximum ^J-^-.J^^^^^
tabulation shall be considered as having been exceeded if at any
f mSutnc? in the section of the spectrum being measured, the
meaSlmd field strength exceeds the maximum value tabulatefi for
this spectrum section.
4. mMTlQW* ' '
a. SiBaflialR. At no point <'^„^«y??$^X%SSSi?7
fVi- 1 easehold Premises shall the maxiimam particle velocity
reciting ?rom any operation, or activity or use exceed 0.10 inches plr second fo? steady-rate vibrations and 0,20 inches per second for impact vibrations.
b. iflrtho^t of He^gvremeat; ^y^^StiSLSw^^^Trir'"^ with a seismograph or coDE5)lement o«,i;«truments ca^Die or
p V. « 6.28 F X D . .
p'v. . Particle velocity, inches per second
F'- Vibration frequency, cycles P«^,s??^^fincKee
D - Single aii«>litude displacement of the vibration, inches
The maximum particle velocity shall be the maximum vector
sum oTlhT^h^ Ltually perpendicular components recorded
s imultaneously.
l^\ qreadv-rate vibrations are vibrations which are
continuous " vLStlons in discrete in^ml.e- occurring 100 or
more times per minute.
(2) impact vibrations are vibrations in discrete impulses
occurring less than 100 times per minute.
5. 791^K MATTBB>
ei-andards At no point on or beyond the boundary of
K^fno^SSies shall the release of any airborne toxic
^^ifresSuiS^r^ a^y^^^^ activity or use exceed 3.0
^rcent oftSe Thre^ol^^^ Value; prjaOdfid, Imfivfit, if a
U3-7Vni.VJ D.4 ^'^•^
•it '
va^if l^f««S ""^J ^^""^ *° established Threshold Limit Value, Lessee shall satisfy the County Department of P»jblic Health that the proposed levels will be safe to the general population. ^
. b- Method of Mea^t|r^>|^^n^> The maximum concentration is
^vY®? a fractional amount of the ACGIH Threshold Limit Value
which is the maximum concentration permitted an industrial worker
for eight hours exposure per day, five days a week, as adopted by
Conference of Governmental Industrial Hygieniits *
l^^^^l: ^f""^^ matter shall be measured at ground li?el or habitable elevation using ACGIH or ASIM methods and shall be the
average of any 24-hour san^jling period. *
f • fiB2£. At no point on or beyond the boundary of the I
leasehold Premises shall any odorous gases or other odorous
matter resulting from any operation, activity or use be
detectable. ' "'l
operations, activities, and uses shall be conducted so as to
comply with the mles and regulations of the San Diego the County
Air Pollution Control District goveming smoke, particulate
matter, and other air contaminants.
8. LIQUIP ^ASTgg.
a. Staftdarflg. All operations, activities, and uses shall
be conducted so as to conply with the mles and regulations of
the State of Califomia Water Quality Control Board - San Diego
Region amd the County San Diego. ^
b« Prohibitioag. The discharge of any toxic or waste
material onto the ground, into any dminage channel, or the
discharge ot any toxic material into any on-site leaching system
shauLi be prohibited.
^- riRg AWP mLQgyvg BA7ABBa> All operations, activities, and
uses shall be conducted so as to caaply with the mles and
regulations of the applicable fire protection agency and the Uniform Fire Code goveming fire and explosive hazards.
10. 9TSER RggPLATIOKS. In addition to the provisions of these
Perf ormamce Standards, all operations on the Premises shall
conform to the standards specified by the applicable Federal
Aviation Administration Regulations, laws of the State of
Califomia and the applicable local ordinances which regulate
land use and operations. In the event of a conflict between
these Performance Standards and various applicable laws,
ordinances and regulations, the most restrictive shall apply
U3.7tm,.v, D-5
EXHIBIT E
INSURANCE REQUIREMENTS
Without limiting Lessee's indemnification obligations to the
County. Lessee shall provide and maintain, during the Term-and
for such other period as may be required by the provisions^ of
this exhibit ("Insurance Exhibit") or the Lease, at its sole
expense, insurance in the amounts and form specified in this
Insursmce Exhibit.
A T.4»vt4iity Insurance. Lessee shall procure either
C^mprSheSiveGiSS^^ insurance or COBinercial 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: ^
(1) r«"rehensive General LdffbiUtV ^gf^^^' A^f^jTy-"^^ Con^rehensive General Liability Insurance which provides limits
of:
(a) Coxnbined Single Limit per occurrence: 55,000,000
(b) Fire Damage Limit (Any One Fire): $ 500,000
(c) Medical Expense (Any One Person): $ 5,000
OR
Commercial General Liability Insurance which provide»^l»lts ofr:
(a) Per Occurrence: !I'222'2S2
(b) T,or?ir1on f^T?ftCiric Aggregate: !|'222'S2S
(c) Products/Completed Operations: !!'2S2'222 (d) . Personal & Advertising Injury limit: f^,000,000 (e) Fire Damage Limit (Any One Fire) : $ 500,000
(f) Medical Ea^ense Limit (Any One Person): $ 5,000
(3) Reonired LiablHtV PoTiCY CQveraqf. J;J^^iJi^y
policy provided by Lessee under this Insurance Exhibit shall
contain the following coverage:
(a) Premises and Operations
(b) Products/Completed Operations
(c) Contractual Liability eaqiressly including
liability assumed under this Lease.
(d) Personal Injury Liability
(e) Independent Contractors' Liability
(f) Pollution liability with no exclusion for
operations at the Premises
(q) Severability of Interest clause providing that the
coverage applies separately to each insured, and
that an act or omission by one of the named
LA3-7tS77I.V3 E-1
^0
insureds shall not reduce or avoid coveraqe to the other named insureds.
r.oi Tflg^ygtf fin^^fg^qtntM 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, aad the
?5'',?Sf«°ts, employees and volunteers of the County
individually and collectively, as additional insureds.
^V1i^iHHff^!!Sfy jBg^rffBCC Endorff^^nt. The coverage afforded
by the additional insured endorsement described above shall aoolv
as primary insurance, and any other insurance maintained by the County, the members of the Board of Supervisors of the <?oSity or its officers, agents, en^loyees and volunteers, or any the County
self-funded program, shall be excess only and iot contributing
with such coverage.
r^r.^<Jll Jitif Zl laffygftacfl Po^jglti. AII liability policies shall be written to apply to all bodily injury.
i^Si^fi^Lfr^^A P'^^Perty damage, personal injury and bther covered loss, however occasioned, occurring during the policy
l^ll »P«S^^i«lly insure the performance by Lessee of
h« iJ-S^i??*^^*'^-*?''®*^^ contained in this Lease relating to liability for injury to or death of persons and damage to property. If the coverage contains one or more aggregate limits, a minimum of 50% of any such aggregate limit
available at all times; if over 50% Sf aSy aggregate
limit has been paid or reserved, the County may require
additional coverage to be purchased by Lessee to restore the
required limits. Lessee may combine primary, umbrella and as
broad as possible excess liability coverage to achieve the total
limits indicated above. Any umbrella or excess liability policy
shall include the Additional Insured Endorsement described below.
. Ali R^ffK F^jre TagaraaOf. A standard fire policy including
perils, in-an amount of ninety percent
90% of the full replacement cost of the Building and
Improvements, without deduction for depreciation, including coats
of demolition and debris removal. Such policy or policies of
insurance shall include coverage for (i) Lessee's merchandise,
(ii) fixtures owned by Lessee, (iii) any items identified in this
Lease as iB5>rovements to the Premises constmcted or owned either
by the County or Lessee, and (iv) the personal property of
Lessee, its agents and employees. *- «- J
(1) Ped^Ctiblg. The deductible for the required fire insurance policy shall not exceed $10,000 per occurrence and shall be home by Lessee.
Proceeds of ipgi^yfi^^g. in the event of damage or
destmction to the Premises covered by the fire or physical
LA3-7W7l.yj E.2
^1
hazard insurance required of Lessee under this Insuramce Exhibit,
the proceeds of .such insurance shall be allocated as follows:
(a) Proceeds from any or all of said insurance
policies shall be payable, first, to the holder of any mortgage
or deed of tmst permitted under this Lease to the extent
required by said mortgage or deed of 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 proceeds
credited to Lessee shall -be in^ounded with an independent
depository acceptable to the County in accordemce with a rider to
the insurance policy setting forth this procedure, to be
disbursed to pay, to the extent such portion of proceeds ^y be
sufficient. Lessee's obligations to repair and restore the
Premises pursuant to the provisions of this Lease;
(c) In the event that, after paying all of the costs
and expenses of repair and restoration referenced in subparagraph
(b), above, amy laalance of insurance proceeds remains, it shall
be retained by Lessee. Should it be amticipated that the
proceeds of insuramce to be received hy Lessee will be
insufficient to repair or restore the Premises as required by
this Lease, Lessee shall have the option to either (1) terminate,^
this Lease and tum over all insurance proceeds from thev.impound
account to the County, or (ii) repair or restore the Premise*
reouired under this Lease using the available insurance proceedsr
with any shortfall in the amount necessary to repair or restore**
the Premises being contributed, in cash, by Lessee. (See,
Section 20.5 (UNINSURED CASUALTT) under Article 20 (DAMAGE OR
DESTRUCTION) .
(d) Notwithstanding any provision of the foregoing to the
contrary, upon any termination of this Lease all proceeds from
Lessee's insurance, but excluding such proceeds attributable to
damages sustained by Lessee's merchandise or personal property,
shall be disbursed and paid to the County.
C. t^i^^r^henai-v^ Automobile/Aircraft/Wstercraft LigfrilitY
Tnaiiranee. Lessee shall procure Comprehensive
Automobile/Aircraft/Watercraft Liability Insurance, applying to
its use and occupancy of the Premises and the business operated
by Lessee or any other occupant on the Premises. Such policy
shall be written for bodily injury, including death, and property
damage, however occasioned, occurring during the policy term, in
the amount of not less than One Million Dollars ($1,000,000),
combined single limit per occurrence, applicable to all owned,
non-owned and hired vehicles/aircraft/watercraft.
Notwithstanding any provision of the foregoing to the contrary.
01/11/97
U3-7W71.V3 * •*
however, such coverage may be waived in writing by the Countv if
it determines there is no"^significant exposure to theSe riSkJ.
?• gtatVtOrV Workers' Compenaatton an«j ]f^lover'a Lltbllj^y
JpgyrtPOe; Lessee shall provide the statutory amount 5fw^
compensation insurance, with a broad form all^states endorsement
and with e«5>loyer's liability coverage of no lew tSaS 5^22^ '
Million Dollars ($3,000,000) per occurrence for all esDloyees
engaged in services or operations under this Lease. Lassie shall
also provide U.S. Longshoremens' and Harbor Workers' Act
coverage, when applicable.
E. General Provialo^^,
(1) Certifioytes of lagargacg. Lessee shall, as soon as
practicable following the placement of insurance required by this
Insurance Exhibit, but in no event later than ten (lO) dSys tirior
to the Effective Date, deliver to the County certified coaieSiof
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 e^imtiS^ lie
term of any policy required by this Insurance Exhibit. Lessee
shall permit the County at all reasonable times to inspect any
policies of insurance of Lessee which Lessee has not dilivered to
the' County.
^ , . <2) C^eiffi Made CoYgrtqt. If coverage is written on a
"claims made" basis, the Certificate of Insurance shall clearly
state so. In addition to the coverage requirements specified
above, such policy shaai provide that:
(a) The policy retroactive date coincides with or
precedes Lessee's possession of the Premises (including
subsequent policies purchased as rene%^ls or replacements).
(b) Lessee will-make every effort to maintain similar insurance during the required extended period of coverage following esipiration of the Lease, including the requirement of
adding all additional insureds. H«*t«nent or
t. 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.
. policy allows for reporting of circumstances or incidents that might give rise to future claims,
^ J3) nilMTt to Qbt^ip or Maintain Insuraneet th^ CffimtY^B
Remeqifg. Lessee's failure to procure the insurance specified by
LA3.Tt5T7I.V2 E-4 ^
this Insurance Exhibit, or failure to deliver certified copies or
appropriate certificates of such insurance, or failure to make
the premium payments required hy such insurance, shall constitute
a material breach of the Lease, and the County may, at its
option, terminate the Lease for any-such default by-Lessee.
(4) Wo Uaitfttloa.of Qbliqitioaf> The foregoing
requirements as to the types-and limits of insurance coverage to
be maintained by Lessee, and any approval of said insurance by
the County or its insurance consultant (s), are not intended to
and shall not in amy manner limit or qualify the liabilities auid
obligations otherwise assumed by Lessee pursuant to the
Agreement, including, but not limited to, the provisions
conceming indemnification.
(5) iTotice of' Cancellation or Change of Coverage. All
certificates of insurance provided by Lessee must evidence that
the insurer providing the policy will give-the County thirty (30)
days' written notice, at the address shown in the Section of this
Ijease entitled "Notices" below, in advance of any cancellation,
lapse, reduction or other adverse change respecting such
insurance.
(6) Qtialifving Insurers. All policies of insurance
required hereby shall be issued by companies which have been
approved to do business in the State of Califomia by the State
Department of Insurance, and which hold a current policy holder's
alphabetic and fixiancial size category rating ^f not less* than A,
VII according to the current Best's Key IRMtin^tGXtide, o»« »
company of equal financial stability that is approved in writing-^
by the County's Risk Manager.
(7) gyview of Coverage. The Coimty shall retain the righic*'
at any time to review the coverage, form and amount of insurance
reouired by this Insurance Exhibit and may require Lessee to
obtain insurance reasonably sufficient in coverage, form and
amount to provide adequate protection against the kind and extent
of risk which exists at the time a change in insurance is
required.
<a) Sslf-lBPUraaCf> Lessee may, with the prior written
consent of the County's Risk Manager, fulfill some or all or the
insurance requirements contained in this Lease under a plan of
self-insurance. Lessee shall only be permitted to utilize such
self-insurance, however, if, in the opinion of the County's Risk
Manager, Lessee's (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
thi^ Lease. Lessee's utilization of self-insurance shall not in
any way limit liabilities assumed by Lessee under this Lease.
(9) f^^leasees' Insurance. Lessee shall require any
sublessee, and any sub-sublessee, of all or any portion of the
_ E-5 owiim
1Y
Premises to Pfovide the insurance coverage described in this Insurance Exhibit prior to occupancy of the Premises.
<10} Waiver of Snhy^^y^^^p Lessee and the County waive 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 '
other or of any other occupant or tenant of the building, from any Claims (as defined in the Article 12 (INDEMNITY AMD
INSURANCB)) , against either of them and from amy 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 insurance
carried by either the County or Lessee, other than proceedtf from
any program of self-insurance, covers any such Claim or damage
Included in any policy or policies of insuramce provided by Lessee under this Insurance Exhibit shall be a standard %faiver of
rights of subrogation against the County by the insurance Iconmany
issuing said policy or policies.
i^.7W7i.v: • E-6 oviim
EXBIBIT F
MCCLELLAN-PALOMAR AIRPORT
THE COUNTy OF SAN DIEGO REQUIRED SUBLEASE PROVISIONS
The following paragraphs must appear in each sublease of the
Premises. Paragraphs marked with an asterisk (*) must be used
exactly as written,
1. -Forties. This Sublease is entered into by and between
hereinafter called "Sublessor", and
, hereinafter-called "Sublessee", as a Sublease
under the Palomar Transfer Station Lease Agreement datedi
, 19 (the "Master Lease"), also Icnown as the County
of San Diego Contract No. > Sublessor, under this
Sublease, is Lessee and the County of San Diego is Lessor under
said Master Lease.
2. ExmiMStA' Sublessor leases to Sublessee arid Sublessee
hires the following described Premises together with the
appurtenances, situated in the County of San Diego, State of
Califomia:
Said p.,.^*"-* are ahown on Exhibit A attaefaed hewseo;^
3. Tfra. The term of this Sublease Agreement shall be for"
, commencing « 15 » aad
rArminatinq . > unless sooner
terminated as provided herein. (Note: Termination date of
Sublease cannot exceed expiration date of Master Lease.)
4. Rental. Sublessee shall pay to Sublessor as rent for
the Premises in advance on the first day 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
Qf Dollars and Cents
(S ). If the commencement date is not the first day of
the month, or if the Sublease termination date is not the last
day of the month, a prorated month installment shall be paid at
the then current rate for the fractional month during which the
Sublease commences and/or terminates. Receipt of $ —^
is hereby acknowledged for rental for the first month, and the
additional amount of $ as non-interest bearing
security for performance under this Sublease. In the event
Sublessee has performed all the terms and conditions of this
Sublease throughout the term, upon Sublessee vacating the
Premises, the amount paid as a security deposit shall be retumed
to Sublessee after first deducting any sums owning to Sublessor.
LAj-wni.vi p.X OI/tSMT
5. SflH. Sublessee shall use the Premises for uees
specified in the Master Lease, generally described as the office
operations of a solid waste collection business, a recycling
facility, and a trash transfer station, including office, repair
and storage facilities for equipment used in collecting and
transferring trash, and for no other purposes without prior
written consent of Sublessor. Sublessee's business shall be
established and conducted throughout the term hereof in a first
class manner. Sublessee shall not use the Premises for, or carry
on, or permit to be carried on, amy offensive, noisy or dangerous
trade, business, manufacture or occupation.
lademiflgAfclsm. sublessee shall indeimify and save
harmless the County of San Diego, it officers, agents, and
ezrqployees from and against any and all' claims, demands,
liabilities, or loss of any kind or nature which the County, its
officers, agents, or employees may sustain or incur, or Which may
be imposed upon them or amy of them for injury to, or death or,
persons or damage to property, as a result of, arising out of, or
in any manner connected with this Sublease or with occupancy amd
use of the Subleased Premises by Sublessee, its officers, agents,
employees, licensees, patrons or visitors except as attributable
to am act or omission of the County. Sublessee further agrees to
pay amy and all costs and expenses, including, but not limited
to, court costs amd reasonaOsle attorneys' fees, incurred by the
County on account of any such claims, demands, or liabilities.
*7. Provisions Constituting Subleaae. This Sublease is
subject to all of the terms amd conditions of the Master Lease.
Sublessee shall assume amd perform the obligations of Sublessor
and Lessee in said Master Lease, to the extent said terms and
conditions are applicable to the Premises subleased pursuamt to
this Sublease. Sublessee shall not coxnnit or permit to be
committed on the Premises any act or omission which shall violate
amy 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, thsn this Sublease shadl terminate
coincidental'ly therewith without any liability of Sublessor and
the County to Sublessee. Sublessee hereby ac)cnowledges and
agrees that Sublessee %raives all rights to amy form of Relocation
Assistance provided for by locaa. State, or Federal law that
Sublessee--may be entitled to by reason of this Sublease.
•8. Federal Aviation Administration Reouir«|^g^tg 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 amd agree as a
covenant mnning with the land that in the event facilities are
constmcted, maintained, or otherwise operated on the said
UA3-WS77I.V3 F-2 OI/lt/fT
Cj9
property described in this Sublease for a purpose for which a DOT
program or activity is extended or for another purpose involving
the provision of similar services or benefits, Sublessee shall
maintain and operate such facilities and services in compliance
with all other requirements in^osed 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 Transporta^tion-Effectuation of Title VI of the
Civil Rights Act of 1964, and as said Regulations may be aunended.
b. Sublessee, for itself, its personal
representatives, successors in interest, and assigns, as a pairt
of the consideration hereof, does hereby covenant and agree as a
covenamt running with the lamd that: (i) no person on the grounds
of race, color, or national origin shall be excluded from'
participation in, denied the benefits of, or be otherwise
subjected to discrimination in the use of said facilities. (2)
that in the constmction of amy inprovements on, over, or under
such land and the fumishing of services thereon, no person on
the grounds of race, color, or national origin shall be excluded
from participation in, denied the benefits of, or otherwise be
subject to discrimination, (3) that Sublessee sliall use the
Premises in compliance with all other requirements inqposed by or
pursuant to Title 49, Code of Federal Regulations, Department of
Transportation, Subtitle A, Office of the Secretary, Pairt 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 beaamended.
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 lamd
and the facilities thereon, amd 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
coixpleted including expimtion of appeal rights.
d. Sublessee .shall fumish its accommodations amd/or
services on a fair, equal and not unjustly discriminatory basis
to all users thereof and it shall cliarge fair, reasonable and not
unjustly discriminatory prices for each unit or service;
PROVIDED, THAT Sublessee may be allowed to make reasonadDle 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-con^Jliance Sublessor shall have the right to terminate this
Sublease and the estate hereby created without liability
therefore, or at the election of Sublessor, the County or the
United States, any or all said entities shall have the right to
judicially enforce said Provisions.
LAJ.W77I.V2 F-3 ouitm
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 amd/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 1S2,
Subpart E, to insure that no person shall, on the grounds of
race, creed, color, national origin, or sex be excluded from
participating in amy 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 undertaUce affirmative action programs and that
they will require assurance from their suborgamizations, ai i
required by 14 CFR Part 152, Subpart B, to the same effort.
h. the County reserves ths 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
obligated to Sublessee, to maintain and keep in repair the
landing area of the Airport amd all publicly-owned facilities of
the Airport, together with the right to direct amd control all
activities of Sublessee in this regard.
j. This Subleass shall be subordinate to the
provisions and requirements of amy 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 lamding at,
taking off from or operation on the Airport.
1, Sublessee agrees to comply with the notification
and review requirements covered in Part 77 of the Federal
Aviation Regulations in the event future constmction of a
building is planned for the subleased Premises, or in the event
of any planned modification or alteration of amy present or
future building or stmcture situated on the subleased Premises.
LAJ.W77I.V1 F-4
m. Sublessee by accepting this expressly agrees for
itself, its successors and assigns that it will not erect nor
permit the erection of any stmcture or object nor peannit 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 amd
to remove the offending stmcture or object and cut the offending
tree, all of which shall be at the expense of Sublessee.
n. Sublessee by accepting this Sublease agrees for
itself, its successors and assigns that it will not 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 hazasnl. In the event the aforesaid
covenant is breached, the County and/or Sublessor reserve the
right to enter upon the Premises hereby subleased and caifse t^he
aibatement of such interference at the expense of Sublessee.
o. It is understood and agreed that nothing herein
contained shall be constmed to grant or authorize the 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 Govemment now has
or in the future may have or acquire, affecting the control,
operation, regulation and taking over of said Airp9»t^or...the
exclusive or non-exclusive use of the Airport by the*^n±te*'
States during the time of war or national emergency,
*9. &iaaR. Sublessee shall not erect nor cause to be
erected any sign on the Subleased Premises without the prior
written approval of the County. A written request for sign
approval must include the size, type, color and location of the
proposed sign and said application must be concurred in by
Sublessor before submittal to the County.
*10. gt^stanee Abuse. Sublessee and its ea?)loyees and
agents shall not use or knowingly allow the use of the subleased
plemises for the purpose of unlawfully driving a motor vehicle or
aircraft under the influence of an alcoholic bevemge or any dmg
or for the purpose of unlawfully selling, serving, using,
storing, transporting, keeping, manufacturing or giving avray
alcoholic beverages or any controlled substance, precursor, or-
analog specified in Division 10 of the Califomia Health and
Safety Code, and violation of this prohibition shall be grounds
for immediate termination of this Sublease.
LA3-7*377I.V2 *^ ^
OO
This Sublease entered into this
SUBLESSEE: SUBLESSOR:
day of October 19 .
By. (Title)
'By.
(Title)
By. (Title) By.
(Title)
Address Address
LA3.7«J77l.v: S-l
1 EXHIBIT B
2 SUBLEASE AND DISPOSAL AGREEMENT BETWEEN ALLIED WASTE
3 INDUSTRIES, INC. AND WASTE MANAGEMENT, INC.
70017373VI 10^
EXHIBIT B
TRANSFER STATION SUBLEASE
[See attached]
(o3
EXHIBIT B
SUBLEASE AGREEMENT
FOR PALOMAR TRANSFER STATION
1. Parties. This Sublease Agreement ("Sublease" or "Agreement**) is entered into
as of June 1,2002 by and between The City of Carlsbad, a municipal corporation of the State of
Califomia ("Sublessor'*), and Palomar Transfer Station, Inc., a Califomia corporation
("Sublessee,**) as a sublease under a certain Palomar Transfer Station Lease Agreemeiit, APN #
97-0085-Al, 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 qjpurtenances thereto, situated
in the Coimty of San Diego, State of Califomia and more particularly described as follows:
The real property commonly known as San Diego County Assessor's
Parcel Number 97-0085A1 as more particularly described and depicted on
the attached Exhibit A. comprising tiie 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 ^plicable law or regulation, mcluding. without limitation, any conditional use
permit applicable to the use of the Premises as a reftise 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 eflfect the assignment of rights and remedies
contemplated hereunder.
3. Term. The term of this Sublease shall conmiencc 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 terai is detliied m, ancTsubjeCC to all the wimu and liiOViTions of, that certain
Agreement for Transfer and Disposal Services, of even date herewith, by and between Sublessor
and Sublessee (the 'Transfer Station Agreement**); provided, however, for avoidance of doubt,
the term of this Sublease shall continue for such period of time as Sublessee is permitted to
occupy the Premises as contemplated under the Transfer Station Agreement and shall be for a
term of not less than ten (10) yean?; provided fitftfaer. that the term of this Sublease shall in no
event exceed the expiration of the Master Lease.
700l7n3v2
4. Rental. Sublessee shdl 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 lawfiil money of the United States, the sum of One Dollar
($1.00). 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 instalbnent shall be paid at the
then current rate for the firactional month during which the Sublease commences and/or
terminates. Receipt of $ 1.00 is hereby acknowledged for rental for the first month.
5. U§g. Sublessee shall use the Premises for operation of a rcfiise and waste transfer
station and any other uses peimitted under the Master Lease, and, if ^plicable, in compliance
with the terms and conditions of ihe 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. Indemnifiratinn 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 y/bich the County and
Sublessor, as applicable, and their respective oflRcers, 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.
., Provisions Constj^urinff ^y^lf 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 mterest 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 die extent such
tennination 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 fonn of relocation assistance
provided for by local. State, or Federal law that Sublessee may be entitled to by reason of this
Sublease.
^* Fe4eral Aviation Administration Requirements In the event there is any conflict
between the provisions in this clause and the other provisions in this Sublease, the provisions in
this clause shall take precedence.
a. Sublessee, for itself, its heirs, personal representatives, successors in
interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a
covenant running with the land that m the event facilities are constructed, maintained, or
700l7n3v2 I
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 Titie 49,
Code of Federal Regulations, DOT, Subtitie A, Office of the Secretary, Part 21,
Nondiscrimination in Federally- Assisted Programs of the Department of Transportation-
Effectuation of Titie VI of tiie 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 witii the land that: (I) no person on the grounds of race, color, or national origin shall be
excluded fmm participation in, denied the benefits of, or be otherwise subjected to
discrimination in tiie use of said facilities, (2) that in the construction of any improvements on,
over, or under such land and the fumishing of services thereon, no person on the grounds of race,
color, or national origin shall be excluded from participation in, denied the benefits of, or
otiierwisc be subject to discrimination, (3) tiiat Sublessee shall use tiie Premises m compliance
with all other requirements imposed by or pursuant to Titie 49, Code of Federal Regulations,
Department of Transportation, Subtitie A, Office of tiie Secretary, Part 21, Nondiscrimination in
Feder^dly-Assisted Programs of tiie Department of Transportation-Effectuation of Titie VI of tiie
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 tiie right to terminate tiiis Sublease and to re-enter and repossess
said land and tiie facilities tiiereon, and hold tiie 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 fumish its accommodations and/or services on a fair, equal
and not unjustiy discriminatory basis to all users thereof and it shall charge fair, reasonable and
not unjustiy 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 purehasers.
e. Non-compliance with provision (d) above shall constitute a material
breach thereof and m the event of such non-compliance Sublessor shall have the right to
terminate this Sublease and the estate hereby created without liability tiierefore, 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 tiiat 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 tiiat no person shall, on tiie grounds of race.
700l7U3v2
creed, color, natior*al 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 firom 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 tiiey similarly will undertake affirmative
action programs and that they will require assurance from their suborganizations, as required by
14 CFR Part 152, Subpart E, to tiie same effort.
h. The County reserves the right to fiirther develop or improve the landing
area of the Airport (as defined in tiie Master Lease) as it sees fit, regardless of the desires or view
of Sublessee, and without interference or hmdrance.
i. The County reserves the right, but shall not be obligated to Sublessee, to
maintain and keep in repair tiie landing area of the Airport and all publicly owned facilities of the
Airport, together with the right to direct and control all activities of Sublessee m 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 tiie passage of aircraft in tiie airspace above tiie
surfiice 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 ofif from or operation on the Airport.
1. Sublessee agrees to comply with tiie 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 m the event of any planned modification or
alteration of any present or future building or structure situated on tiie subleased Premises.
m. Sublessee by accepting this expressly agrees for itself, its successors and
assigns that it will not erect nor permit the erection of any structure or object nor pennit the
growtii of any tree on the land subleased hereunder that conflicts with Part 77 of the Federal
Aviation Regulations. In the event the aforesaid covenants are breached, the County and/or
Sublessor reserve the right to enter upon the land subleased hereunder and to remove the
offending stmcture or object and cut the offending tree, all of \^ch shall be at the expense of
Sublessee.
n. Sublessee by accepting tiiis 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 landmg and taking off of aircraft from the Airport or otherwise constitute a hazard. In
the event the aforesaid covenant is breached, the County and/or Sublessor reserve the right to
enter upon tiie Premises hereby subleased and cause tiie abatement of such interference at tiie
expense of Sublessee.
70017U3v2 10^
o. It is understood and agreed tiiat nothing herein contained shall be
construed to grant or autiiorize tiie granting of an exclusive right witiiin tiie meaning of Section
308a of tiie Federal Aviation Act of 1958 (49 U.S.C. 1349a).
p. This Sublease and all tiie provisions hereof shall be subject to whatever
right tiie United States Government now has or in tiie future may have or acquire, affecting tiie
control, operation, regulation and taking over of said Airport or tiie exclusive or non-exclusive
use of tiie Airport by tiie United States during tiie time of war or national emergency.
9. Signs. Sublessee shall not erect nor cause to be erected any sign on the Premises
witiiout tiie prior written approval of tiie County. A written request for sign approval must
include tiie size, type, color and location of tiie proposed sign and said application must be
concurred in by Sublessor before submittal to the County.
10. Substance Abuse. Sublessee and its employees and agents shall not use or
knowingly allow tiie use of tiie subleased Premises for tfie purpose of unlawfuUy driving a motor
vehicle or aircraft under tiie influence of an alcoholic beverage or any drug or for tiie purpose of
unlawfiilly selUng, serving, using, storing, transporting, keeping, manufacturing or giviiig away
alcoholic beverages or any controlled substance, precursor, or analog specified in Division 10 of
tiie Califomia Healtii and Safety Code, and violation of tiiis prohibition shall be grounds for
inunediate tennination of this Sublease.
11. Prime Lease. Sublessor, as Lessee under tiie Master Lease represents and
warrants to Sublessee tiiat, to Sublessor's knowledge as of tiie date of tiie commencement of tiie
term of tiiis Sublease: (a) Sublessor has deUvered to Sublessee Ml and complete copies of tiie
Master Lease and all otiier related agreements between Sublessor and Master Lessor; (b) tiie
Master Lease is in fiill force and effect and (c) no event of default has occuned under tiie Master
Lease on tiie part of Sublessor or Master Lessor and, to Sublessor's knowledge, no event has
occuired and is continuing which would constitute an event of default but for tiie requirement of
tiie giving of notice and/or tiie expiration of tiie period of time to cure under, or witii respect to,
any of such agreements.
12 Q^ietEniovment. Sublessor has fiill power and autiiority to enter into tiiis
Sublease subject to tiie consent of Master Lessor. So long as Sublessee is not in default m tiie
perfomiance of its covenants and agreements in tiiis Sublease, Sublessee's quiet and peaceable
wijoyment of tiie Premises shall not be disturbed or mtcrfered witii by Sublessor, or by any
person claiming by, through, or under Sublessor.
13. Further Provisiom Regarding Sublease. Sublessee agrees tiiat it will provide and
maintain tiie insurance coverage reqmred of Sublessor pursuant to tiie Master Lease witii respect
to tiie Premises. Each party agrees tiiat it will not, by its act or omission to act, cause a default
under tiie Master Lease. In fiirtfierance of tiie foregoing, tiie parties hereby confirm and agree,
each to tiie otiier, tiiat it is not practical in tiiis Sublease to enumerate all of tiie rights and
obligations of tiie various parties under tiie Master Lease and specificaUy to allocate tiiose nghts
and obligations in tiiis Sublease. Accordingly, in order to afford to Sublessee tiie benefits of tins
Sublease and of tiiosc provisions of tiie Master Lease which by tiiehr nature are mtended to
benefit tiie party in possession of tiie Premises, and in order to protect Sublessor against a default
[ 0^
70017U3V2
by Sublessee which might cause a default or event of default by Sublessor under tiie Master
Lease:
a. Except as otiierwise expressly provided herein. Sublessor shall perform its
covenants and obligations under tfie Master Lease which do not require for tiieir perfomiance
possession of tiie Premises and which are (i) not reasonably anticipated to be performed by
Sublessee or (ii) not otiierwise to be performed hereunder by Sublessee on behalf of Sublessor.
b. Except as otiierwise expressly provided herein. Sublessee shall perform all
affirmative covenants and shall refirain from performing any act is prohibited by tiie
negative covenants of tiie Master Lease; where tiie obligation to perfonn or refrain from
performmg is by its nature imposed upon tiie party in possession of tiie Premises.
c. Sublessor shall not agree to an amendment to tiie Master Lease which
might have an adverse effect on Sublessee's use or occupancy of tfie Premises, increase
Sublessee's costs under this Sublease or have an adverse effect on tiie use of tiie Premises for
tiieir intended purpose, unless Sublessor shall first obtain Sublessee's prior written approval
tiicreof, y/bich approval by Sublessee shall not be unreasonably witiiheld or delayed.
Reversion to Sublessee of Sublesso^'j^ Interest in Master If tiiis Sublease is
ever terminated or expires otiier tiian as a result of default by Sublessee, all right, titie and
interest in tiie Master Lease shall revert to Sublessee; provided, however, tiiat Sublessor shall
cure any defaults and mdemnify Sublessee for any liabilities arising during tiie period prior to
such reveraon, otiier tiian such defaults and liabilities caused by Sublessee's own breach or
failure to perform.
15. Additional Provisions.
a^ Governing t^w. This Sublease shall be governed by and constmed in
accordance witfi tiie laws of tiie State of California.
h. Wajvgrs. No waiver or breach of any covenant or provision shall be
deemed a waiver of any otiier 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 tiie parties'convenience, are
not a part of tiiis Sublease, and shall not be used to interpret tiiis Sublease. This Sublease shall
not be constmed as ifit had been prepared by one of tiie parties, but rather as if botii parties have
prepared it
70017J13V2 (0^
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
Address: 8364 Claremont Mesa Blvd.
San Diego, CA 92111
Attn: General Manager
By:_
Titie:
By:^
Titie:
Address: 1200 Carlsbad Village Drive
Carlsbad, CA 92008
Atta: City Manager
70017!13v2 110
EXHIBIT C
COUNTY OF SAN DIEGO REQUIRED SUBLEASE PROVISIONS
1. Indemnity. County shall not be liable for, and CWM, as sublessee, shall defend and
indemnify County and tiie employees and agents of County (collectively "County Parties"),
against any and all claims, demands, liability, judgments, awards, fines, mechanics' liens or
other liens, labor disputes, losses, damages, expenses, charges or costs of any kind or character,
including attomeys' fees and court costs (hereinafter collectively referred to as "Claims"),
related to this Agreement or CWM's use or occupancy of the Sublease Premises and arising
either directly or indirectly from any act, error, omission or negligence of CWM or its
sublessees, licensees, agents, servants or employees, including, without limitation. Claims caused
by the concurrent negligent act, error or omission, whether active or passive, of County Parties.
CWM shall have no obligation, however, to defend or indemnify County Parties from a Claim if
it is determined by a court of competent jurisdiction that such Claim was caused by the sole
negligence or willfiil misconduct of County Parties.
2. Provisions Constituting Sublease. This Agreement is subject to all of the terms and
conditions of the Transfer Station Master Lease. CWM shall assume and perform the obligations
of Palomar and Lessee in the Transfer Station Master Lease, to the extent such terms and
conditions are applicable to the Sublease Premises subleased pursuant to this Agreement. CWM
shall not commit or permit to be committed on the Sublease Premises any act or omission which
shall violate any term or condition of the Transfer Station Master Lease. In the event of the
termination of the City's interest as Lessee under the Transfer Station Master Lease or Palomar's
interest as Sublessee under the Transfer Station Sublease for any reason, then this Agreement
shall terminate coincidentally therewith without any liability of Palomar, County or City to
CWM.
3. CWM's Waiver and Release of Relocation Benefits. In consideration of Ckjunty's
consent to this Agreement, CWM hereby waives any and all rights it may now have, or may
hereafter obtain, to relocation benefits ("Relocation Benefits") under the Federal Uniform
Relocation Assistance Act (42 U.S.C. §§ 4601 et seq.) and/or the Califomia Relocation
Assistance Law (Cal. Gov. Code, §§ 7260 et seq.), arising out of the County's assertion or
exercise of its contractual rights to terminate the Lease or this Agreement pursuant to its terms,
whether or not such rights are contested by CWM or any other entity, and releases County from
any liability for payment of such Relocation Benefits. CWM shall in the fiiture execute any
fiutiier documentation of the release and waiver provided hereby as County may reasonably
require.
4. Federal Aviation Administration Requirements. In tiie event there is any conflict
between the provisions in this Clause and the otiier provisions in this Agreement, the provisions
in this Clause shall take precedence.
a. CWM, for itself, its heirs, personal representatives, successors in interest, and
assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant
mnning with the land that in the event fecilities are constmcted, maintained, or otherwise
operated on the said property described in this Agreement for a purpose for which a DOT
program or activity is extended or for another purpose involving the provision of similar services
or benefits, CWM 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 Titie VI of tiie Civil Rights Act of 1964, and as
said Regulations may be amended.
b. CWM, 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 ranning with
the land that: (1) no person on the grounds of race, color, or national origin shall be excluded
from participation in, denied the benefits of, or be otherwise subjected to discrimination in the
use of said facilities, (2) that in the constmction of any improvements on, over, or under such
land and the fumishing of services thereon, no person on the grounds of race, color, or national
origin shall be excluded from participation in, denied the benefits of, or otherwise be subject to
discrimination, (3) that CWM shall use the Sublease 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-Effecmation 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,
Palomar shall have the right to terminate this Agreement and to re-enter and repossess said land
and the facilities thereon, and hold the same as if said Agreement 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. CWM shall fumish its accommodations and/or services on a fair, equal and not
unjustly discriminatory basis to all users thereof and it shall charge fair, reasonable and not
unjustiy discriminatory prices for each unit or service; provided, that CWM 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 Palomar shall have the right to terminate this
Agreement and the estate hereby created without liability therefore, or at the election of Palomar,
County or the United States, any or all said entities shall have tiie right to judicially enforce said
Provisions.
£ CWM agrees that it shall insert the above five Provisions in any sub-sublease by
which said CWM grants a right or privilege to any person, firm or corporation to render
accommodations and/or services to the public on the Sublease Premises herein subleased.
C-2
11^
g. CWM 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 tiie 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. CWM assures tiiat no person shall be excluded on these grounds
from participating in or receiving tiie services or benefits of any program or activity covered by
this subpart. CWM assures tiiat it will require that its covered sub-organizations provide
assurances to CWM that they similarly will undertake affirmative action programs and tiiat they
will require assurance from their sub-organizations, as required by 14 CFR Part 152, Subpart E,
to the same effort.
h. 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 CWM, and without interference or
hindrance.
i. County reserves the right, but shall not be obligated to CWM, 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 CWM in this regard.
j. This Agreement shall be subordinate to the provisions and requirements of any
existing or fumre agreement between County and tiie United States, relative to the development,
operation or maintenance of the Airport.
k. There is hereby reserved to County, its successors and assigns, for the use and
benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface
of the Sublease 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.
I. CWM agrees to comply with the notification and review requirements covered in
Part 77 of the Federal Aviation Regulations in the event fumre constmction of a building is
planned for the Sublease Premises, or in the event of any planned modification or alteration of
any present or fiitare building or structure situated on the Sublease Premises.
m. CWM by accepting this expressly agrees for itself, its successors and assigns that
it will not erect nor pennit the erection of any stracmre or object nor permit the growth of any
tree on the land subleased hereunder tiiat conflicts with Part 77 of the Federal Aviation
Regulations. In the event the aforesaid covenants are breached, County and/or Palomar reserve
the right to enter upon the land subleased hereunder and to remove the offending stmcture or
object and cut the offending tree, all of which shall be at tiie expense of CWM.
n. CWM by accepting this Agreement agrees for itself, its successors and assigns that
it will not make use of the subleased Sublease Premises in any manner which might interfere
with the landing and taking off of aircraft from the Airport or otherwise constitate a hazard. In
the event the aforesaid covenant is breached. County and/or Palomar reserve the right to enter
upon the Sublease Premises hereby subleased and cause the abatement of such interference at the
expense of CWM.
C-3
\ 13
o. It is understood and agreed that nothing herein contained shall be constmed 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 Agreement and all the provisions hereof shall be subject to whatever right the
United States Govemment now has or in the future may have or acquire, affecting the control,
operation, regulation and taking over of said Airport or the exclusive or non-exclusive use of the
Airport by the United States during the time of war or national emergency.
5. Signs. CWM shall not erect nor cause to be erected any sign on the Sublease Premises
without the prior written approval of the County Airports Director. 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 Palomar before submittal to County Airports Director.
6. Substance Abuse. CWM and its employees and agents shall not use or knowingly
allow the use of the Sublease Premises for the purpose of unlawfully driving a motor vehicle or
aircraft under the influence of an alcoholic beverage or any drag or for the purpose of unlawfully
selling, serving, using, storing, transporting, keeping, manufacmring or giving away alcoholic
beverages or any controlled substance, precursor, or analog specified in Division 10 of the
Califomia Health and Safety Code, and violation of this prohibition shall be grounds for
immediate termination of this Agreement.
7. County's Right of Access.
a. County's Right to Enter the Premises. County, its agents, employees, and
contractors may enter the Premises at any time in response to an emergency, and at reasonable
hours to (a) inspect the Sublease Premises, (b) exhibit the Sublease Premises to prospective
purchasers or lessees, (c) determine whether City is complymg with its obligations under tiie
Transfer Station Master Lease (including its obligations with respect to compliance with
Hazardous Materials Laws), (d) supply cleaning service and any other service that the Transfer
Station Master Lease requires (Iloimty to provide, (e) post notices of nonresponsibility or similar
notices, or (f) make repairs that the Transfer Station Master Lease requires County to make, or
make repaks to any adjoining space or utility services, or make repairs, alterations, or
improvements to any other portion of the Sublease Premises; provided, however, that all work
will be done as promptly as reasonably possible and so as to cause as little interference to CWM
as reasonably possible.
b CWM's Waiver of Damages Claims. Sublessee waives any claim of injury or
inconvenience to CWM's business, interference with CWM's business, loss of occupancy or
quiet enjoyment of the Sublease Premises, or any other loss occasioned by such entry. If
necessary, CWM shall provide County with keys to unlock all of tiie doors in the Sublease
Premises (excluding CWM's vaults, safes, and similar areas designated in writing by CWM in
advance). County will have tiie right to use any means that County may deem proper to open
doors in the Sublease Premises and to the Sublease Premises in an emergency. No entry to the
Sublease Premises by County by any means will be a forcible or unlawful entry into the Sublease
C-4
Premises or a detainer of the Sublease Premises or an eviction, actual or constractive, of CWM
from the Sublease Premises, or any part of the Sublease Premises, nor will the entry entitle
CWM to damages or an abatement of rent or other charges that this Agreement requires CWM to
pay.
C-5
EXHIBIT D
COUNTY OF SAN DIEGO
CONSENT TO SUB-SUBLEASE
WHEREAS, tiie COUNTY OF SAN DIEGO, hereinafter referred to as "County," has leased
a portion of McClellan-Palomar Airport (the "Property") to PALOMAR TRANSFER STATION,
INC., a Califomia corporation, by lease known as PALOMAR TRANSFER STATION LEASE
AGREEMENT, APN # 97-0085-Al, entered into between County and Palomar Transfer Station, hic.
on October 31,1997 and hereinafter referred to as "Master Lease"; and
WHEREAS, said Master Lease was assigned on June 1,2002 to CITY OF CARLSBAD, a
municipal corporation, hereinafter referred to as "Lessee"; and
WHEREAS, Lessee has subleased tiie Property to PALOMAR TRANSFER STATION,
INC., a Califomia corporation, hereinafter referred to as "Sublessee", by sublease known as
SUBLEASE AGREEMENT FOR PALOMAR TRANSFER STATION, entered into between Lessee
and Sublessee on June 1,2002 and consented to by County on May 31, 2002; and
WHEREAS, Sublessee desires to enter into that certain Sub-sublease and Disposal
Agreement, to which this County of San Diego Consent to Sub-Sublease is attached as Exhibit "D",
hereinafter referred to as "Sub-Sublease", with COAST WASTE MANAGEMENT, INC. a
Califomia corporation, hereinafter referred to as "Sub-Sublessee", for a portion of the Property as
more particularly described in the Sub-Sublease; and
WHEREAS, said Master Lease provides that subleases shall not be effective until consented
to in writing by County; and
WHEREAS, the San Diego County Code of Administrative Ordinances, per Section 455.1
(AIRPORT OPERATIONS), autiiorizes the Director of the Department of Public Works, on behalf
of the County as Lessor, to consent to such subleases; and
WHEREAS, the Director of the Department of Public Works has delegated this authority to
the Director of Airports, Department of Public Works of the County of San Diego.
NOW, THEREFORE, County, acting through the Director of Airports, does hereby consent
to said sub-sublease on this 9^ day of July 2012, witii the stipulation that in the event there is any
conflict betweai said Sub-sublease and said Master Lease, the terms and conditions of said Master
Lease shall prevail.
COUNTY OF SAN DIEGO
PETER DRINK^^ER, Director of Airports
Department of Public Works
\\(o
sU3
FIRST AMENDMENT TO SUBLEASE
AND DISPOSAL AGREEMENT
This First Amendment to Sublease and Disposal Agreement is entered into and effective as of
November 1, 2011 (the "First Amendment"), by and between PALOMAR TRANSFER STATION,
INC., a Califomia corporation C'Palomar") and ALLIED WASTE INDUSTRIES, INC. ("AWI")
and COAST WASTE MANAGEMENT, INC., a Califomia corporation, a Waste Management
company, and its affiliates (collectively, "WMI") for the purpose of amending that certain Sublease
and Disposal Agreement, dated May 31, 2000, entered into between Palomar, AWI, Coast and Waste
Management, Inc. (the "WMI Sublease"), a copy of which WMI Sublease is attached hereto as Exhibit
A.
RECITALS
A. Palomar, pursuant to the terms of that certain Sublease Agreement dated June 1,2002
(the "Transfer Station Sublease") between Palomar and the City of Carlsbad (the "City"), subleases
that certain real property located in the City of Carlsbad, County of San Diego, Califomia identified as
San Diego County Assessor's Parcel Number 97-0085-Al and known as the Palomar Facility (the
"Property"), which consists, among other things, of a solid waste transfer station, office space, parking
and maintenance facilities, all as more particularly described in the Transfer Station Sublease, a copy
of which Transfer Station Lease is attached hereto as Exhibit B.
B. The Transfer Station Sublease is subject to the terms and conditions of that certain
Palomar Transfer Station Lease Agreement, dated October 31, 1997 (the "Master Lease"), between the
County of San Diego and the City (by Assignment of Lease dated June 1,2002 between Palomar and
the City), a copy of which Master Lease is attached hereto as Exhibit C.
C. Palomar and WMI have entered into that certain Transport and Disposal Agreement,
dated of even date herewith.
D. Palomar and AWI are in the process of negotiating a renewal of that certain agreement
entitled "Agreement for Transfer Station and Disposal Services between the City of Carlsbad and
Palomar Transfer Station, Inc." ("Carlsbad Disposal Agreement") with the City of Carlsbad, and Coast
is in the process of negotiating a renewal of that certain agreement entitled "Contract for the Provision
of Solid Waste Services" ("Carlsbad Collection Agreement") with the City of Carlsbad. Both Parties
believe in good faith that both agreements will be approved and executed prior to June 1, 2012.
E. Landlord and Tenant are desirous of entering into this First Amendment for the purpose
of extending the Term, providing for an adjustment in the rental rate to be paid during the Extended
Term (as defined herein), and to modify the addresses for purposes of notice.
NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged. Landlord and Tenant agree as follows:
wn
AGREEM.ENT
1. CONDITION PRECEDENT:
This First Amendment is expressly conditioned upon, and shall be of no force and
effect, unless WMI and the City of Carlsbad enter into a renewal of the Carlsbad
Collection Agreement that becomes effective on or before June 1,2012 WMI may
waive this condition precedent, upon written notice to Palomar and A WL
This First Amendment is tlirther expressly conditioned upon, and shall be of no force
and effect, unless both of the following occur: (a) Palomar, AWI and the City of
Carlsbad enter into a renewal of the Carlsbad Disposal Agreement; and (b) Palomar,
AWI and WMI enter into a "Transportation and Disposal Agreemenf regarding the
delivery by WMI of certain San Diego County waste streams to Palomar and AWI, as
more particularly described in that agreement. Palomar and AWI may waive this
condition precedent, upon written notice to WMI.
2. TERM:
The Tenn of the WMI Sublease shall be extended for a ten (10) year period beginning
on June I, 2012 and mnning through and including May 31, 2022 provided the Transfer
Station Sublease and the Master Lease are still validly existing (the "Extended Tenn"),
at which time Tenant shall vacate the Premises in accordance with the terms and
conditions of the WMI Sublease, as amended by this First Amendment. The WM I
Sublease shall expire on June 1,2022 unless otherwise extended by written agreement
of the parties hereto, or their successors or assigns, and there shall be no requirement of
any written notice of termination to be provided by Palomar, AWI, Coast or WMI to
effect such termination upon the expiration of the Extended Tenn.
3. RENT:
The base monthly rent, effective June 1, 2012, and continuing for each and every month
during the Extended Term, shall be the sum of Sixty Thousand and 00/100 Dollars
($60,000.00) (for an annual rent equal to Seven Hundred Twenty Thousand and 00/100
($720,000.00)) due and payable in accordance with the tenns of the WMI Sublease. The
Rent hereunder shall be subject to a percentage increase only based on the annual
increases in collection rates applied by the City of Carlsbad pursuant to the Carlsbad
Collection Agreement. However, under no circumstances shall the Rent hereunder be
decreased if the rate applied by the City of Carlsbad pursuant to the Carlsbad Collection
Agreement decreases, rather in that case there shall be no adjustment for the year in
which there was no increase.
4. WMFS OBLIGATIONS:
Section 3.1(a), lines 12 and 13 of the WMI Sublease are amended to delete "WMI may
also deli ver additional amounts of Acceptable Waste, other than the Carlsbad
Acceptable Waste, from time to time, in amounts to be detemiined by WMf
3* .F*]^]^S^*
Section 5.1 of the WMI Sublease is deleted in its entirety and replaced with the
following:
For the acceptance, transportation and disposal by Palomar and AWI of Acceptable
Waste generated in or collected in the City of Carlsbad and delivered to the Palomar
Transfer Station pursuant to section 3.1, WMI, Coast and their affiliates will pay PTS
the per ton fee established in the Carlsbad Agreement, as such fee is adjusted from time
to time pursuant to the tenns of the Carlsbad Disposal Agreement, as it may be
amended from time to time.
Sections 5.2 and 5.3 of the WMI Sublease are deleted in their entirety.
Section 5.5, lines 1 and 2 of the WMI Sublease are amended to delete "Section 5.3 and
5.4" and substitute "Section 5.1."
6. NOTICES:
Notwithstanding anything to the contrary in the WMI Sublease, specifically including
but not limited to the provision of Section 10.7, the address for notices to Palomar and
AWI shall be as follows:
If to Palomar/A WI: Palomar Transfer Station, Inc.
Aliict! W aste Sen ices San Dioiio
S.>b4 ( huvinoiii Mesa Houle\urd
San Diciso. t'A ^)2ni
Attn: James T. Ambroso, Vice President
With a copy to: Republic Services, Inc.
l8500North Allied Way
Phoenix, Arizona 85054
Attn: General Counsel
If to WMI: Coast Waste Management, Inc.
5960 El Camino Real
Carlsbad, CA 92108-0947
Attn: District Manager
With a copy to: Waste Management - Western Group
7025 N. Scottsdale Road
Suite 200
Scottsdale, AZ 85253
Attention: Group Legal Counsel
7. PRESERVATION OF TERMS:
Except as modified herein, all tenns and conditions of the WM I Sublease shall remain
in full force and effect. Capitalized tenns not defined herein shall have the meaning
ascribed to them in the WMI Sublease.
3
Signed, sealed and delivered as of the date below each signature:
PALOMAR:
By
Na
Date
IBS T. Ambroso, Vice President
AWI:
By: Allied Waste Industries, Inc.,
a Delaware corporation
General Partner
By:
Nai
I "/'^^^
Date: W^zt-U
WMI:
Rose, Market Area Vice President
l«>nj%7 4 (XX'