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HomeMy WebLinkAbout1997-10-28; City Council; Resolution 97-653I/ 0 0 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RESOLUTION NO. 97-653 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING THE LEASE AND SUBLEASE FOR THE PALOMAR TRANSFER STATION AND AUTHORIZING EXECUTION WHEREAS, the City of Carlsbad, the County of San Diego, and Coast \r Management entered into a settlement agreement regarding the Palomar Transfer Station: WHEREAS, the settlement agreement stipulated the County of San Diego will leas Palomar Transfer Station to the City of Carlsbad; and WHEREAS, the settlement agreement stipulated the City of Carlsbad will subleas Palomar Transfer Station to Coast Waste Management; and WHEREAS, to that end, all parties have negotiated the attached lease and subleas NOW, THEREFORE, BE IT RESOLVED, BY THE City Council of the City of Car as follows: 1. The above recitations are true and correct. 2. The Lease for the Palomar Transfer Station between the County of San Diegc the City of Carlsbad attached hereto is hereby approved. 3. The Sublease for the Palomar Transfer Station between the City of Carlsbad Coast Waste Management attached hereto is hereby approved. 4. The Mayor is hereby authorized to execute said documents on behalf of the City PASSED, APPROVED AND ADOPTED by the City Council of the City of Carlsbad regular meeting held on the 28th day of. October , 1997, by the following vote, to AYES: Council Members Lewis, Finni NOES: None ABSENT: None 28 ALETI-IA L. WbtEN (SEAL) W L' m PALOMAR SOLID WASTE FACILITY SUBLEASE OWNEWLESSOR: COUNTY OF SAN DIEGO, AIRPORTS DIVISION LESSEE: CIW OF CARLSBAD SUBLESSEE: COAST WASTE MANAGEMENT, INC. PARCELS: This Sublease Agreement ("Sublease") is made and entered into effective as of ?h\lm b4f 3 , 1997, concurrent with, and contingent upon, entry of that certain Lease between the County of San Diego Airports Division ('County Airports") and the City of Carlsbad, a copy of which is attached hereto as Exhibit A. This Sublease is between the City of Carlsbad ("Carlsbad''), a municipal corporation and Lessee of the subject property from County Airports under the Lease attached as Exhibit A and Coast Waste Management, Inc. ("Coast" or 'Sublessee"), a California corporation engaged in the solid waste business. 1. RECITALS. A. Incident to the settlement of litigation between Coast, Carlsbad, and the County of San Diego ('the County"), Carlsbad and County Airports are entering into the Lease of the subject property attached hereto as Exhibit A. It is the intent of the parties to this Sublease that Coast, under this Sublease will assume and perform all of Carlsbads obligations under its Lease with County Airports, including but not limited to, the obligations to pay rent, to maintain and protect the property and to use the property only as authorized by the County AirportdCarlsbad Lease. B. Coast, Carlsbad, and the County each also has certain rights under that certain Settlement Agreement, a copy of which Settlement Agreement is attached hereto as Exhibit B. It is the intent of the parties that, pursuant to this Sublease, Coast will perform all of Carlsbad's operational and site related obligations under the Settlement Agreement during the term of Coast's Sublease. C. The parties to this Sublease recognize and acknowledge that Coast is currently the franchised solid waste collection provider for the City of Carlsbad on a month-to-month basis. Nothing in this Sublease shall be construed to alter that relationship Or to extend the term thereof. Draft5 -cca*~Su~ CiTCAD7.324 Revised October 9,1997 1 0 a # II. - SUBLEASE. A. Premises. The premises subleased to Coast under this Sublease are the same Property and Premises which Carlsbad leases from County Airports under the Lease attached hereto as Exhibit A. The premises ("Premises") shall include any additional acreage added to thie Carlsbad Lease, and shall exclude any acreage deleted, during the term of this Sublease. B. Effective Date. This Sublease shall become effective when all of the following have occurred: 1. The Settlement Agreement attached as Exhibit B is signed by all the parties, approved by the Court, and entered as provided by law. [The Settlement Agreement was signed on August 1 1, 1997, and this condition has been satisfied.] 2. County Airports and Carlsbad have executed the Lease attached as Exhibit A and the same has become effective. 3. Coast has provided the appropriate bonds and proof of insurance to Carlsbad and County Airports as provided below. C. Terms and Provisions. The terms and provisions of the County AirportdCarlsbad Lease attached as Exhibit A are incorporated herein by this reference as the terms, provisions, and conditions upon which the Premises are subleased to Coast. In the event there is any conflict between the terms, provisions, and conditions of the Lease between County Airports and Carlsbad and the terms, provisions, and conditions of this Sublease, the terms, provisions, and conditions of the Lease between County Airports and Carlsbad shall control, provided that it is understood that the County Airports/Carlsbad Lease sets the minimum requirements and any additional requirements imposed by this Sublease shall apply and shall not be deemed in conflict with the Lease. D. - Rent. The rent to be paid by Coast is as set out in the County AirportsKarlsbad Lease and settlement Agreement attached as Exhibits A and B, respectively. Coast shall pay rent in a timely manner directly to County Airports, with a copy of rent payment documentation to Carlsbad confirming that rent has in fact been paid. The rent to be paid by COi3St shall include, as may be authorized by the County Airports/Carlsbad Lease and Settlement Agreement, respectively, any adjustments in the rent, late Draft 5 - CoasUCadsbad Sublease ClTCAD7.324 Revised October 9,1997 2 0 0 . payment penalties, and any other Lease related charges (“extra rent” pursuant to Section 1.1 1 of the County AirpotVCarlsbad Lease) due from Carlsbad to the County. It is expressly understood and agreed by the parties to this Sublease that in no event is Carlsbad to bear any of the costs of rent or other Lease related charges. Rather, it is Coast‘s obligation to make all of these payments. If a security deposit is required by County Airports under its Lease to Carlsbad, Coast shall make the required deposit. E. Pavment of Tir, Fee Reductions to Carlsbad Per Settlement Aareement. In addition to rent, Coast shall transmit to Carlsbad the amount of reduced tip fees called for by lll(C)(6) of the Settlement Agreement attached hereto as Exhibit “B.” ($2.50 per ton for all waste disposed of in County facilities above Carlsbad’s trash up to a total of 800 tons per day, and $3.25 per ton on all waste disposed of in County landfills between 800 and 1000 tons per day, minus Carlsbad’s trash, all as set forth in more detail in the attached Settlement Agreement). Coast shall keep accurate records in order to comply with the provisions of the Settlement Agreement attached as Exhibit “B“ and with the provisions of this Sublease, and Coast shall, within 15 days of the end of each calendar month transmit to Carlsbad by check all amounts due pursuant to this subparagraph, together with an accounting of how the amount was computed. Any disputes corlcerning the manner, timeliness, or amount of such payments shall be subject to the dispute resolution provisions of this Sublease and of the Settlement Agreement. F. AcceDtance of Premises bv Coast. Coast accepts the Premises subject to any and all existing easements and encumbrances. Coast further acknowledges that it has, in fact, been utilizing the site for some number of years and that in entering into this Sublease it does so having fully inspected the Premises to its satisfaction. In this regard, Coast accepts responsibility for the cost of mitigating any existing or future hazardous or toxic materials cleanup that may be required at the site by the County AirporVCarlsbad Lease or as a result of Coast’s presence at the site. Coast further certifies and warrants that in entering into this Subleasle it is not relying upon any representation as to the condition of the property or the Premises by Carlsbad or County Airports. Coast further accepts and acknowledgcas the obligations of the County Airports/Carlsbad Lease and of the Settlement Agreement attached as Exhibits A and B, respectively, and that it has reviewed the same to its satisfaction with its own independent attorneys and advisors, fully understands the same, and undertakes to perform the obligations thereof as called for by this Slublease in full without reservation. G. Taxes, Assessments and Fees. Carlsbad shall not be obligated to pay any taxes or assessments accruing against Sublessee related to the Lease, the Sublease, or the Premises or any interest Draft 5 - CoastlCafirbad subleaso CITCAD7.324 Revised October 9, ’1997 3 0 0 I of Sublessee therein before, during or after the term, or any extension thereof. All such payments shall be the sole responsibility of Sublessee. In addition, Sublessee shall be solely responsible for payment of any taxes or assessments levied upon any improvements, fixtures or personal property located on the Premises, to the extent that such taxes or assessments result from the business or other activities of Sublessee upon, or in connection with, the Premises. H. Indemnitv/Hold Harmless. Coast shall indemnify, defend, and hold harmless the City of Carlsbad, County Airports, and their officers, employees, and agents from and against any and all claims, demands, liability, judgments, awards, fines, mechanics' liens or other liens, losses, damages, expenses, rents, charges or costs of any kind or character, including attorneys' tees and court costs (hereinafter collectively referred to as "claims"), arising from or in connection.with, or caused by, directly or indirectly (1) any breach or default by Sublessfee of its obligations under this Sublease; (2) any act, omission, or negligence of Sublessee, active or passive, or of any sub-sub-tenant or sub-sub-lessee and/or their respective contractors, subcontractors, licensees, invitees, agents, servants, 01' employees; (3) any use of the Premises, or any accident, injury, death or damage to ,any person or property occurring in, on or about the Premises or any part thereof, or any service delivery facilities, or any other portions of the Premises used by Sublessee; and (4) any labor dispute involving Sublessee, its employees, contractors, subcontradtors, or agents, including without limitation, claims caused by the concurrent negligent act or omission, whether active or passive, of Carlsbad or its officers, agents, and/or employees; provided, however, that Sublessee shall have no obligation to defend or indemnify Carlsbad or County Airports or their officers, agents, and employees from claims caused by the negligent, willful or criminal act of Carlsbad or County Airports or their officers, agents, and employees. The .foregoing shall include the obligation on the part of Sublessee and its successors, assigns, and guarantors, if any, jointly and severally, to protect, indemnify, defend (with counsel of Carlsbad's choosing as to claims against Carlsbad and County Airports' choosing as to claims against County Airports), reimburse and hold Carlsbad and County Airports and their officers, agents, and employees harmless from any claims, judgments, damages, penalties, fines, costs or expenses, known or unknown, contingent or otherwise, liabilities (including sums paid in settlement of claims), personal injiury (including wrongful death), property damage (real or personal), or loss including attorneys' fees, consultants fees, and experts fees (consultants and experts to be selected by Carlsbad) which arise during or after the term of this Sublease from or in connection with the presence or suspected presence of hazardous or toxic materials a!; defined by applicable federal, state, and/or local law as a result of acts, by Sublessee, its contractors, employees, customers, and/or agents anywhere in or on the Premises, including the soil, groundwater, or soil vapor on or under the property, unless the hazardous or toxic materials are present as the result of the gross negligence or willful misconduct of Carlsbad, its officers, agents or employees. Without Dren 5 - CoastK=arisbad sublease ClTCAD7.324 Revised October 9,1997 4 w 0 s limiting the glenerality of the foregoing, the indemnification provided by this section shall specifically cover costs incurred in connection with investigation of site conditions for any cleanup, remediation, removal or restoration work required by any hazardous or toxic materiails laws because of the presence of hazardous materials in the soil, groundwater or soil vapor on the Premises resulting from the release or discharge of hazardous materials by Sublessee during the course of Sublessee’s alteration or improvement of the Premises, unless the hazardous materials are present as a result of the gross negligence or willful misconduct of Carlsbad or County Airports or their officers, agents, or employees. In the event that Carlsbad shall exercise any of its rights under this Sublease to enter the Premises and/or the Property or to authorize others to do so, Sublessee and their officers, employees, and agents shall not be liable for, and Carlsbad shall defend, indemnify, protect and hold said parties harmless from 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 attarneys’ fees and court costs (collectively referred to as “claims”), arising from or in connection with, or caused by, directly or indirectly, any such entry by Carlsbad or its agents resulting in any accident, injury, death or damage to any person or property occurring in, on, or about the Premises or any part thereof, or any service delivery facilities or any other portions of the Property. 1. Insurance. Withcrut limiting Sublessee’s indemnification obligations to Carlsbad and County Airports as set out above, Sublessee shall provide and maintain, during the term of the Sublease and for such other period as may be required herein, including any holdover period, whether authorized or unauthorized, insurance in the amounts and forms specified in Exhibit E to the County AirporVCarlsbad Lease which shall name Carlsbad, the members of its City Council, and its officers, agents, employees and volunteers, individually and collectively, as additional insureds. Coast shall provide Carlsbad with the appropriate certificates of insurance confirming Carisbad’s status as an additional insured in the form and manner as called for by paragraph E of Exhibit E to the County AirporVCarlsbad Lease. Coast expressly acknowledges and agrees that the rights, remedies, and benefits running in favor of County Airports under Exhibit E to the County AirporVCarlsbad Lease with respect to insurance requirements also run to the benefit of Carlsbad as sublessor, and are enforceable directly by Carlsbad. J. Insoection. Carlsbad and its designated agent or agents, and County Airports and its designated ;agent or agents representing the landowner, shall have the right at any time and from time to time, on reasonable notice to Sublessee (except in the event of an emergency iin which case no notice shall be required) to inspect the Premises to determine whether Sublessee is complying with Sublessee’s obligations set forth in this Draft 5 - coastlcarlsbed Sum CITCAD7.324 Revised October 9,1997 5 0 e Sublease, and to perform environmental inspections and samplings during regular business hours (except in the event of an emergency) or during such other hours as Carlsbad and/or County Airports and Sublessee may agree. If Sublessee is not in compliance with its obligations in any respect, upon demand for correction and failure to cure in a reasonable time on the part of Sublessee, Carlsbad and/or County Airports shall have'the right, in addition to Carisbad's and County Airports' other remedies available at law and in equity, or under the Settlement Agreement, to enter upon the Premises irnmediately and, at Sublessee's expense, take such action as Carlsbad and/or County Airports in their sole judgment deems appropriate to remediate any actual or threatened violation caused by Sublessee andor to protect Carlsbad's interest in ensuring that its lease with County Airports is not violated. Carlsbad and County Airports will use reasonable efforts to minimize interference with Sublessee's use of the Premises but will not be liable for any interference caused by Carlsbad's or County Airports' entry and remediation efforts. K. Operations Azlreement. In conformance with section IV(C)(3) of the Settlement Agreement'attached hereto as Exhibit "B," the Operating Agreement attached hereto and incorporated herein by this reference as Exhibit "C" shall govern day to day operations at the Facility. The Operations Agreement may be revised from time to time by an agreement in writing signed by the Carlsbad City Manager and an authorized representative of Coast without the need for a formal amendment of this Sublease. Carlsbad shall, at all times, keep in its official files an up-todate version of this Sublease together with an up-todate version of the Operations Agreement. L. Assianment: Consent Reauired. Sublessee shall not voluntarily or involuntarily assign, sublease, mortgage, encumber, or otherwise transfer all or any portion of the Premises or its interest in this Sublease without Carlsbad's and County Airport's prior written consent. Carlsbad shall consider any requested assignment in conformance with the terms of the Settlement Agreement. Carlsbad's consent shall not be unreasonably withheld. County Airports shall consider any request for assignment in conformance with the terms of the Lease between County Airports and Carlsbad. Any attempted assignment or transfer on the part of Sublessee without Carlsbad's and County Airports' prior written consent shall be void and shall constitute a breach of this Sublease. Carlsbad's and County Airports' consent to any assignment or Sublease will not be effective until a document in writing is signed memorializing Carlsbad's and County Airports' approval and the assignee or sub-sub-lessee has assumed all of the obligations of Sublessee and has agreed to perform * all of Sublessee's obligations. Drafts -coa~rlstmdsu~ ClTcAo7.324 Revised Octobers, 1897 6 e M. Events of Default. The occurrence of any of the following shall constitute a default by Sublessee and a breach of this Sublease: 1. Failure on the part of Sublessee to perform any material aspect of this Sublease, including Exhibits A and B referred to in this Sublease. 2. Failing or refusing to pay any rent or other monetary obligation in a timely manner. 3. Maintaining, committing, or permitting on the Premises waste, a nuisance, or use of the Premises for an unlawful purpose, or assigning or subletting this Sublease in a manner contrary to the provisions of this Sublease. 4. Failure to remediate or otherwise take corrective action as to any matter upon the demand of Carlsbad. N. Carlsbad’s Ricrht and Remedies. Should Sublessee fail to perform its obligations under this Sublease, Carlsbad may exercise any of the following rights: 1. The right of Carlsbad to terminate this Sublease and Sublessee’s right to possession of the Premises and to reenter the Premises, take possession thereof and remove all persons therefrom, following which Sublessee shall have no further claim thereon or hereunder. 2. The right of Carlsbad without terminating this Sublease and Sublessee’s right to possession of the Premises, to reenter the Premises and occupy the whole or any part thereof for and on account of Sublessee and to collect any unpaid rents and other charges which have become payable, or which thereafter become payable. 3. The right of Carlsbad, even though it may have reentered the Premises, to elect thereafter to terminate this Sublease and Sublessee’s right to possession of the Premises. Should Carlsbad re-enter the Premises, Carlsbad shall not be deemed to have terminated this Sublease and the liability of Sublessee to.pay rent and other charges thereafter accruing, and Sublessee’s liability for damages under any of the provisions of this Sublease shall m 5 - coasucart!Ebad sublease CKCAD7.324 Revised Octobef 9, ‘1997 7 -0 0 continue unless and until Carlsbad shall have notified Sublessee in writing that it has so elected to terminate this Sublease and Sublessee’s right to possession. 4. Its rights under its Lease with County Airports. The rights and remedies of Carlsbad set forth in this Paragraph (N) are in addition to thle rights of County Airports under the Lease between County Airports and Carlsbad. 0. Defaults bv Carlsbad. If Carlsbad shall neglect or fail to perform or observe any of the terms, covenants, or conditions contained in this Sublease and/or in Exhibits A and B attached hereto to be performed on the part of Carlsbad and which are necessary in order to enable Coast to perform its obligations, upon notice thereof, in writing, from Coast to Carlsbad , Carlsbad shall within a reasonable time cure any such failure of performance on its part. In the event that Carlsbad fails or refuses to cure any such failure of performance on its part, such failure shall be deemed a material breach of this Sublease entitling Coast to the remedies provided at law and in equity, including but not limited to, the right to terminate the Sublease and cease paying rent. P. Notices. Notices under this Sublease may be delivered, in writing, by mail or personal delivery to the following parties at the following addresses: City Manager City clf Carlsbad 1200 Carlsbad Village Drive Carlslbad, CA 92008 Coast Waste Management, Inc. - do - County of San Diego Airports Division 1960 Joe Crosson Drive El Cajon, CA 92020 Any party may, by written notice, delivered pursuant to this provision, at any time designate a different address and contact person to whom notices shall be sent. Draft 5 - coast/carilsbad subiease CITCAD7.324 RevisedOctober9.1~7 8 m e A Q. Waiver of Relocation Assistance Benefits. Sublessee understands and acknowledges that Carlsbad has a right of first refusal to acquire the property under Exhibits A and B attached hereto, and that Carlsbad m,ay, in the future, (but not during the term of the County AirportlCarlsbad Lease) undertake by eminent domain to acquire title to the property. By entering into this Sublease and becoming a subtenant of Carlsbad, Sublessee may become entitled to receipt of "relocation assistance benefits" pursuant to the Federal Uniform Relocation Assistance Act and/or the California Relocation Assistance Law, should Carlsbad at some time make use of the Premises in such a way as to "displace" Sublessee from the Premises. In consideration of Carlsbad's agreement to enter into this Sublease, Sublessee hereby waives any and all rights it may now have, or may hereafter obtain, to relocation assistance benefits under federal, state, or local law arising out of Carlsbad's assertion or exercise of its rights under this Sublease andor its right to pursue eminent domain, and Sublessee releases Carlsbad and County Airports from any liability for payment of such relocation benefits, provided, however, that Sublessee does not waive its rights to relocation benefits as to any entity other than Carlsblad and County Airports. R. lntearation of Sublease with Countv/Carisbad Lease and Settlement Aareement. The terms, conditions, and provisions of this Sublease shall be integrated with the County Airports/Carlsbad Lease (Exhibit A) and the Settlement Agreement (Exhibit 6). The fad that some provisions, but not all, of the County/Carlsbad Lease (Exhibit A) and/or of the Settlement Agreement (Exhibit 6) may be restated in this Sublease does not diminish the validity or importance of any of the other provisions. The provisions of Exhibits A and B set the minimum requirements as supplemented by any additional provisions iin this Sublease. Under all circumstances Coast shall, at minimum, be obligated to perform all of Carlsbad's obligations to the County under Exhibit A. S. Exoansion. The Premises shall be expanded, if at all, in conformance with the terms and provisions of Exhibits A and B. In the event of expansion, Carlsbad and Sublessee agree to amend this Sublease as appropriate to incorporate any such expansion. No expansion of the Premises on the part of Sublessee shall occur except with the prior express written consent of Carlsbad and County Airports in a manner consistent with Exhibits A and 6. milt 5 - coasu~3rkM sublease CiTCAD7.324 RevisedOctober!3,1997 9 W 0 111. GENE3tAL PROVISIONS. A. Authoritv. Subletssee represents and warrants that it has full power and authority to execute and fully perform its obligations under this Sublease pursuant to its governing instruments, without the need for any further action, and that the person(s) executing this Subleasbe on behalf of Sublessee is(are) the duly designated agent(s) of Sublessee and is(are) authorized to do so. B. Brokers. Sublessee warrants that it has had no dealings with any real estate broker or agent in corlnection with the negotiation and/or execution of this Sublease. In the event any broker other than the brokers acknowledged in writing by Carlsbad make claim for monies owed, Sublessee shall indemnify, defend and hold Carlsbad and County Airplorts harmless therefrom. C. Captions. The captions, headings and index appearing in this Sublease are inserted for convenience only and in no way define, limit, construe, or describe the scope of intent of the provisions of this Sublease. D. Carlsbad ADDrOVal. Excqpt where stated herein to the contrary, the phrases "Carlsbad's approval," and "Carlsbad's written approval" or such similar phrases shall mean approval of Carlsbad's City Manager or said Manager's designee as authorized by said Manager in writing. E. Allecration of Breach: Notice: Riqht to Cure Any dispute or allegation of breach of this Sublease shall be handled in conformance with the dispute resolution and breach provisions of the Settlement Agreement 'and the County AirportdCarIsbad Lease. F. Cumulative Remedies. In the event of a default under this Sublease, each party's remedies shall be limited to th'ose remedies set forth in this Sublease; any such remedies are cumulative and not exclusive of any other remedies under this Sublease to which the non- defaulting party may be entitled. Draft 5 - CoasUCarlsbnd Sublease CITCAD7.324 Revised October% 1997 10 W 0 4 G. Entire Aareement. This ,Sublease, together with all addenda, exhibits and riders attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and all prior or contemporaneous agreements, understandings and representations, oral or written, are superseded. H. EStODDel Certificate. Sublessee shall at any time during the term of this Sublease, within five (5) business days of written notice from Carlsbad, execute and deliver to Carlsbad a statement in writing certifying that this Sublease is unmodified and in full force and effect or, if modified, stating the nature of such modification. Sublessee’s statement shall include other details requested by Carlsbad, such as the date to which rent and other charges are paid, sublessee’s knowledge concerning any outstanding defaults with respedt to Carlsbad’s obligations under this Sublease and the nature of such defaults if they are claims. Any such statement may be relied upon conclusively by any prospective purchaser or encumbrancer of the Premises. Sublessee’s failure to deliver such statements within such time shall be conclusive upon Sublessee that this Sublease is in full force and effect, except to the extent any modification has been represented by County, and that there are no uncured defaults in Carlsbad’s performancre, and that not more than one month’s rent has been paid in advance. 1. Exhibits. All exhibits referred to herein are attached hereto and incorporated by reference. J. Force Maieure. In the event either party is prevented or delayed from performing any act or discharging any obligation hereunder, except for the payment of rent by Sublessee, because of any and all causes beyond either party’s reasonable control, including unusual delays in deliveries, abnormal adverse weather conditions, unavoidable casualties, strikes, labor disputes, inability to obtain labor, materials or equipment, acts of God, governmental restrictions, regulations or controls, any hostile government actions, civiil commotion and fire or other casualty, legal actions attacking the validity of this Sublease or Carlsbads occupancy of the Premises, or any other casualties beyond the reasonabte control of either party except casualties resulting from Lessee’s negligent olperation or maintenance of the Premises or the Property (“Force Majeure”), performance of such act shall be excused for the period of such delay, and the period for performance of such act shall be extended for a period equivalent to the period of such delay. Force Majeure shall not include any.bankruptcy, insolvency, or other financial inability on the part of either party hereto. DraR5 -cowtlcalrbbadsublegse CKCAD7.324 Revised Odober Q,, 1997 11 0 A 0 K. Govemina Law. This Sublease shall be governed, construed and enforced in accordance with the laws of tlhe State of California. L. Interpretation. The parties have each agreed to the use of the particular language of the provisions OF this Sublease, and any question of doubtful interpretation shall not be resolved by any rule of interpretation providing for interpretation against the parties who cause an uncertainty to exist or against the draftsperson. M. Joint and Several Liability. If more than one person or entity executes this Sublease as Sublessee, each of them is jointly and severally liable for all of the obligations of Sublessee hereunder. N. Sublessee’s Lease Administration. Sublessee confirms that Sublessee’s Lease Administrator has been given full operational responsibility for compliance with the terms of this Sublease. Sublessee shall provide Carlsbad with a written schedule of its normal hours of business operation on the Premises, and Sublessee’s Sublease Administrator or a representative designated thereby shall be (i) available to Carlsbad on a twenty-four (24) hour a day, seven (7) daiy a week, basis, and (ii) present on the Premises during Sublessee’s normal business hours, to resolve problems or answer questions pertaining to this Sublease anld Sublessee’s operations on the Premises. 0. Modification. The provisions of this Sublease may not be modified, except by a written instrument signed by both parties and approved in writing by County Airports. P. Partial Invaliditv. If any provision of this Sublease is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Sublease shall not be affected thereby. Each provision shall be valid and enforceable to the fullest extent permitted by law. Q. Payments. Except as may othewise be expressly stated, each payment required to be made by Sublessee shall be in addition to and not in Witution for other payments to be made by Sublessee. Draft 5 - cOast/carkbRd SUMease crrcAD7.324 Revised October 0.1997 12 W 0 R. Successors 8 Assiclns. This Sublease shall be binding on and inure to the benefit of the parties and their successors and assigns, all of whom shall be jointly and severally liable hereunder, except as may otherwise be provided herein. S. Time of Essence. Time is of the essence of each and every provision of this Sublease. T. Waiver. No prlovision of this Sublease or the breach thereof shall be deemed waived, except by written consent of the party against whom the waiver is claimed. The waiver by Carlsbad of any breach of any term, covenant or condition contained in this Sublease shall not be deemed to be a waiver of such term, covenant or condition of any subsequent breach thereof, or of any other term, covenant or condition contained in this Sublease. Carlsbad’s, or County Airports’, subsequent acceptance of partial rent or performance by Sublessee shall not be deemed to be an accord and satisfaction or a waiver of any preceding breach by Sublessee of any term, covenant or condition of this Sublease by reason of such breach, regardless of Carlsbad‘s or County Airports’ knowledge aC such preceding breach at the time of Carlsbad‘s or County Airports’ acceptance. The failure on the part of Carlsbad to require exact or full and complete compliance with any of the covenants, conditions of agreements of this Sublease shall not be construed as in any manner changing or waiving the terms of this Sublease or as estopping Carlsbad from enforcing in full the provisions hereof. No custom or practice which may arise or grow up between the parties hereto in the course of administering this Sublease shall be construed to waive, estop or in any way lessen the right of Carlsbad to insist upon the full performance of, or compliance with, an.y term, covenant or condition hereof by Sublessee, or construed to inhibit or prevent the rights of Carlsbad to exercise its rights with respect to any default, dereliction or breach of this Sublease by Sublessee. IN WITNESS WHEREOF, Carlsbad and Sublessee have duly executed this Sublease as of the day and year first above written. SUBLESSOR: A Dated: November 3, 1997 - Draft 5 - coastlcIl&ibpd subleaso CITCAD7.324 Rovisedocdober9.1SS7 13 W e Dated: f0,47/F SUBLESSEE: COAST WASTE MANAGEMENT, INC. By: mw M? APPROVED AS TO FORM: Dated: lb/ 9 /9y Dated: I 0 / 1-1 197 WORDEN, WILLIAMS, RICHMOND & ELLIS A Professional Comoration By: Y. Dwigfi worden, Counsel for City of Carlsbad - By: co@&- -, €. LU1utqb- /"dm$ Counsel for Coast Waste Management, Inc. NOTE: THIS SUBLEASE HAS BEEN REVIEWED AND APPROVED BY THE COUNTY OF SAN DIEGO AIRPORTS DIVISION, LANDOWNER AND MASTER LESSOR, AS SET FORTH IN THE ATTACHED CONSENT TO SUBLEASE. Draft5 -cogstlcalkbadsublease ClTCAD7.324 RevkadodoberS, 1997 14