HomeMy WebLinkAbout09.a. Authorize lease agreement with County Quarry for District property at 5501 Imhoff Drive, MartinezCentral Contra Costa Sanitary District
' BOARD OF DIRECTORS
POSITION PAPER
Board Meeting Date: September 5, 2013
Subject. AUTHORIZE THE GENERAL MANAGER TO EXECUTE A NEW LEASE
AGREEMENT WITH COUNTY QUARRY PRODUCTS LLC FOR
CONTINUED OPERATION OF A CONCRETE AND ASPHALT
RECYCLING OPERATION (5501 IMHOFF DRIVE, MARTINEZ - APN
159- 140 -052)
Submitted By: Initiating Dept. /Div.:
Danea Gemmell Engineering/
Environmental Services Division Manager Environmental Services Division
REVIEWED AND RECOMMENDED FOR BOARD ACTION:
%A-
K. Alm R. Bailey
Counsel for the Distri t General Manager
ISSUE: Board authorization is required for execution of lease agreements.
RECOMMENDATION: Authorize the General Manager to execute a new lease
agreement with County Quarry Products LLC (County Quarry) for continued operation
of a concrete and asphalt recycling operation on the property located at 5501 Imhoff
Drive in Martinez (APN 159 -140 -052) beginning October 1, 2013 and potentially
extending to December 31, 2022.
FINANCIAL IMPACTS: The District will receive $19,811 per month, which is an 8
percent increase over the previous lease agreement with annual 3 percent increase
adjustments, until December 31, 2022.
ALTERNATIVES /CONSIDERATIONS: The Board of Directors may decline to
authorize a new lease agreement.
BACKGROUND: The District has leased the 7.58 -acre parcel at 5501 Imhoff Drive to
County Quarry for the past 27 years. County Quarry operates a concrete and asphalt
recycling operation on the property which recycles concrete and asphalt materials and
sells the recycled materials as well as new aggregate, concrete and asphalt on the site.
A ten -year lease agreement was executed with County Quarry in December 2000;
which was extended for one year in 2010 and for a second one -year term in 2011. The
one -year terms allowed the District to monitor concerns about pile height, dust, traffic,
and general housekeeping at the site. Staff monitored performance during this period
and believed that County Quarry achieved substantial compliance with the agreed -upon
performance standards.
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9.a.
POSITION PAPER
Board Meeting Date: September 5, 2013
Subject. AUTHORIZE THE GENERAL MANAGER TO EXECUTE A NEW LEASE
AGREEMENT WITH COUNTY QUARRY PRODUCTS LLC FOR
CONTINUED OPERATION OF A CONCRETE AND ASPHALT
RECYCLING OPERATION (5501 IMHOFF DRIVE, MARTINEZ - APN
159- 140 -052)
In the Fall of 2012, County Quarry approached the District with a request for a longer -
term lease extension. On December 20, 2012, a public hearing was held after which
the Board approved Resolution 2012 -102. In summary, this resolution:
• declared the property "currently un- needed" for a period not to exceed 10 years;
• authorized the extension of the current lease for six months to June 30, 2013
(the Fourth Amendment); and
• authorized the General Manager to negotiate a lease agreement with County
Quarry for a period not to exceed 10 years.
The Enterprise Committee (formerly the Real Estate Committee) requested a two -year
lease period at the February 11, 2013 meeting in order to continue to monitor County
Quarry's performance. Staff presented a two -year lease amendment to the full Board
at the April 18, 2013 meeting with a new provision that adds financial penalties for
failure to comply with mutually agreed upon housekeeping and safety issues. The
Board provided direction to allow a 7 -1/2 -year lease extension conditional upon County
Quarry's satisfactory performance during the initial two -year term.
On June 20, 2013, the Board authorized the extension of the current lease through a
Fifth Amendment for three more months, to September 30, 2013, to allow staff more
time to draft a new, updated lease agreement. District Counsel has drafted a new
lease agreement and updated the terms in accordance with the Board's direction.
County Quarry has agreed to the new terms and conditions.
Based on the previous public hearing on December 20, 2012 and consultation with
District Counsel, staff believes an additional public hearing is not required for execution
of the new lease agreement.
Staff has concluded that the proposed lease agreement and continuation of the
concrete and asphalt recycling operation are exempt from the requirements of the
California Environmental Quality Act (CEQA) under District CEQA Guidelines Section
15301, since it involves no expansion of existing facilities. Approval of this lease
agreement will establish the Board of Directors' independent finding that this approval is
exempt from CEQA.
COMMITTEE RECOMMENDATION: This matter was discussed and approved for
recommendation by the Enterprise Committee at its August 19, 2013 meeting.
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POSITION PAPER
Board Meeting Date: September 5, 2013
Subject. AUTHORIZE THE GENERAL MANAGER TO EXECUTE A NEW LEASE
AGREEMENT WITH COUNTY QUARRY PRODUCTS LLC FOR
CONTINUED OPERATION OF A CONCRETE AND ASPHALT
RECYCLING OPERATION (5501 IMHOFF DRIVE, MARTINEZ - APN
159- 140 -052)
RECOMMENDED BOARD ACTION: Authorize the General Manager to execute a new
lease agreement with County Quarry Products LLC commencing October 1, 2013, with
a potential term of nine years and three months, through December 31, 2022, for
continued operation of a concrete and asphalt recycling operation on the property
located at 5501 Imhoff Drive in Martinez (APN 159 - 140 -052).
Attached Supportinq Documents:
1. Draft Lease Agreement with County Quarry Products, LLC
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Attachment 1
PROPERTY LEASE AGREEMENT BETWEEN
CENTRAL CONTRA COSTA SANITARY DISTRICT s�
' O
and
COUNTY QUARRY PRODUCTS, LLC
THIS PROPERTY LEASE AGREEMENT ( "Agreement ") is made and entered into as of July 1,
2013, by and between CENTRAL CONTRA COSTA SANITARY DISTRICT ( "District "), as
Lessor, and COUNTY QUARRY PRODUCTS, LLC, a California limited liability company, as
Lessee ( "Lessee ").
RECITALS
A. Under Health & Safety Code Section 6514.1(e), the District can lease property not to
exceed ten (10) years without subjecting the lease of the property to a competitive bid process.
B. The property subject to this lease is required by the District to be used as a buffer
zone. Lessee's business activities at the site are heavy industrial activities, which the District
considers to be compatible with the use of the property as a buffer zone to the District's treatment
facility located at 5019 Imhoff Place, Martinez, California 94553.
C. Lessee's business use of the property for recycling of concrete and asphalt also aids
Contra Costa County and the cities within the central Contra Costa County area in their attempts to
comply with the waste reduction requirements of California Public Resources Code Section 41000,
et seq. The use of the property for recycling purposes thereby indirectly benefits the constituents of
the District within central Contra Costa County.
D. Due to both the beneficial recycling use of the property and the consistency of
Lessee's operation with the District's buffer zone requirements, the District seeks to retain Lessee as
the leaseholder of the subject property, and Lessee seeks to continue in enjoyment of its leasehold
interests in the property based on the property's suitability for Lessee's business activities.
ARTICLES
ARTICLE 1 PREMISES.
1.1 The District hereby leases to Lessee, on the terms and conditions hereinafter set forth,
for the purpose of operating (1) a recycling plant for asphalt and concrete, (2) a concrete batch plant,
and (3) a portable asphalt plant, that certain real property consisting of approximately seven (7) acres
of Parcel C.2, Assessor's No. 159- 140 -52, situated in the County of Contra Costa, State of
California, hereinafter called "the Premises" and described as shown in Exhibit A attached hereto
and made a part thereof.
1.2 The District makes NO EXPRESS OR IMPLIED WARRANTIES or representations
to Lessee concerning the suitability of the Premises for recycling plants, a concrete batch plant, or a
portable asphalt plant.
1.3 Lessee's acceptance of the Premises is subject to: All existing easements, servitudes,
licenses, and right -of -ways, ditches, levees, roads, highways, utility poles and lines, railroads, and
other purposes, whether recorded or not.
ARTICLE 2 INITIAL TERM, EXTENSION, TERMINATION.
2.1 The term of this Lease ( "Term ") shall be for two (2) years, commencing on
October 1, 2013. In addition, in the event that the District has not imposed liquidated damages more
than three (3) times for non - compliance as provided in Article 25 within either of the two (2) years
or more than four (4) times cumulatively by October 31, 2015, the Term will automatically extend
for an additional seven years and three months, through December 31, 2022.
2.2 If by the time the Term expires, the Parties have not reached agreement on terms for
another extension, Lessee will have a reasonable period, no less than one hundred eighty (180) days,
to vacate the Premises, unless otherwise agreed to by the Parties. Nothing herein shall be construed
to imply that the District waives any right to receive reasonable rent for the one hundred eighty (180)
day period and for any period that the Lessee might still occupy the Premises after said period.
Lessee shall not be entitled to any damages for diminished revenues, lost opportunity or lost profits
upon termination of this Lease.
2.3 Notwithstanding subparagraph 2. 1, the District will have the right to terminate this
Lease as to all or any portion of the Premises, if the District Board declares the same to be required
for public use. If such a determination of the need for public use of the Premises is made, the Lease
shall be subject to cancellation and termination by the District at any time thereafter by giving
Lessee notice in writing as soon as possible, but no later than one year prior to the date such
termination shall become effective. Any claim for damages by Lessee shall be limited to a pro -rata
refund of rental amounts paid in advance, but not earned.
2.4 At the date of termination of this Lease, or at the date of termination of any extension
or renewal of this Lease, Lessee will return the Premises to the District free of any Hazardous
Materials contamination, as that term is defined in Article 10 of this lease.
ARTICLE 3 RENTAL.
3.1 Lessee agrees to pay rent ( "Rent ") of Nineteen thousand eight hundred and eleven
Dollars ($19,811) per month through September 30, 2014. For the period beginning October 1,
2014, through October 31, 2015, and any other extension of the Term thereafter, Lessee hereby
agrees to an increase in its rent by three percent for the remainder of the extended Term. Rent will
be billed monthly and is due on the fifteenth day of each calendar month. The first payment of
$19,811 will be due on November 15th. The Monthly Rent shall be paid to:
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Central Contra Costa Sanitary District
ATTENTION: Accounting
5019 Imhoff Place
Martinez, CA 94553
ARTICLE 4 USE AND MAINTENANCE OF THE PREMISES.
4.1 The Premises are leased to Lessee upon the express condition that Lessee shall use
the Premises for the purpose of recycling and manufacturing asphalt and concrete and selling such
products to the public, and for general office use in connection with such activities, and for no other
purpose without the prior written consent of the District.
4.2 Lessee shall inform the District, when requested at reasonable intervals of time not to
exceed four (4) times in any twelve (12) month period, by the District, as to the pile height of both
unprocessed and processed materials being stockpiled on the Premises. At no time shall any pile
height exceed twenty -five (25) feet above Imhoff Drive.
4.3 Lessee shall keep and maintain all fences, gates, culverts and District -owned items on
the Premises in good condition and shall complete repair to the satisfaction of the District at Lessee's
expense. Photographs of all such items are attached to this Agreement as Exhibit C, and represent
the baseline and required condition of the items. Lessee hereby waives all rights to make repairs at
the District's expense under the provisions of Section 1942 of the Civil Code of the State of
California. No alterations or additions may be made except such as shall be first approved by the
District, which shall not be unreasonably withheld. In addition, any fence installed by Lessee must
be kept in good visual condition. Although the District generally hereby consents to existing fencing
and onsite improvements, a walk through shall be scheduled to identify and address any existing
maintenance or upkeep issues that should be addressed relating to existing improvements.
4.4 Lessee agrees that it will not carry on or permit upon the Premises any nuisance, or
any activity or condition that is against public policy or in conflict with public health and safety
regulations. Lessee shall maintain the Premises, including landscaping, fence and screening,
driveways and all facilities that can be viewed from the street in a kempt and orderly condition as
would be appropriate for similar, professionally operated facilities.
4.5 Lessee shall, at its own cost and expense, comply with all federal, state, county, and
District statutes, laws, ordinances, or regulations related to Lessee's use and occupancy of the
Premises, including, but not limited to, compliance with weed, rodent, and fire control programs, and
all pollution control requirements.
4.6 Lessee shall promptly remove non - operational, dilapidated, or abandoned equipment
or improvements.
4.7 Lessee shall use reasonable dust control measures on the Premises.
4.8 Lessee shall, at its own cost and expense, undertake street sweeping, at least one time
a day for each day of operation, on the street adjacent to the front of the Premises on Imhoff Drive.
If conditions warrant more frequent street sweeping to prohibit the accumulation of dust and debris
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attributable to Lessee's activities on the Premises, Lessee shall undertake street sweeping as needed.
Lessee shall take such other, reasonable actions as may be needed (e.g. truck wheel washing,
watering down dust) as may be required to minimize dust and debris on the Premises and the
adjacent roadway.
4.9 Lessee's operations shall comply with all California Air Resources Board and other
State and local regulations.
4.10 Lessee shall employ adequate practices with regard to traffic safety to ensure that
vehicles entering and leaving premises, as well as vehicles queuing up to enter Premises, do not
create a traffic obstruction or otherwise create an unsafe condition for vehicular traffic on Imhoff
Drive. Lessee agrees during high volume periods where a number of vehicles are queuing on
Imhoff, Lessee shall assign appropriate personnel to help manage the traffic in order to minimize
congestion which may impede vehicular safety related to Imhoff Drive and use of the site.
ARTICLE 5 ENTRY AND INSPECTION.
5.1 Lessee shall permit the District and its agents to enter onto the Premises at all
reasonable times upon reasonable prior notice, except in case of emergency, to view the state and
condition of the Premises or any District improvements thereon and for any other reasonable
purposes connected with this Lease.
5.2 Lessee shall, upon request, provide the District and its agents with copies of Lessee's
records of regulatory compliance, which include, but are not limited to, OSHA inspection reports,
environmental compliance records, permit and license documents, notices of violations issued by
governmental entities, and any other regulatory compliance documentary evidence.
5.3 Nothing herein is intended to imply the District has any control over Lessee's
operations. These inspections and information inquiries, if requested, will be used only for purposes
of protecting the District's interests under this Lease.
ARTICLE 6 UTILITIES.
6.1 Lessee agrees to arrange for and pay for all water, fuel, telephone, electric power,
materials, sanitation, and other property - related services obtained from third parties, and for the
removal of trash, garbage, rubbish, and other waste in and around the Premises. The District, upon
review and its written approval of the Lessee's utility plans, will grant the right to Lessee, at
Lessee's expense, to install applicable materials and equipment that are necessary to obtain utilities
on the Premises. The District hereby consents to Lessee's existing utility installations. Should any
utilities be existing on the site at the commencement of the Lease, Lessee shall be entitled to use said
facilities.
ARTICLE 7 IMPROVEMENTS.
7.1 The District, upon review and its written approval, which shall not be unreasonably
withheld, conditioned, or delayed, of the Lessee's plans, will grant the right to Lessee to make the
specified real property improvements upon the Premises that are necessary for operation of cement
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and asphalt recycling and manufacturing. All such improvements shall comply with all regulatory
authority requirements and be maintained in a safe condition. If Lessee vacates the property, either
during the Lease Term, or at its termination, Lessee, at its own cost and expense, shall return the
Premises to the same condition that the Premises were in at the time of execution of the initial Lease
in 1985, with the exception of fill materials brought to the Premises to create a solid surface thereon,
or upon approval by the District, turn over to the District, at no charge, all such improvements or the
acceptable parts thereof other than plant, equipment, and trade fixtures, which shall remain the
property of Lessee.
7.2 Lessee agrees to furnish, install, and properly maintain perimeter landscaping as
shown on the District's current master plan as of the date hereof, for landscaping of the Premises.
The District will supply reclaimed water to the Premises for Lessee to purchase at listed rates for
Lessee's use in maintaining the landscaping and in operating the site facilities. Due to possible
breakdowns or shutdown of the District's ability to produce reclaimed water to the Premises, no
guarantee as to the availability of reclaimed water is made by the District. Any costs of Lessee
applicable to or associated with the use of recycled water or an alternate water source, including
operation and maintenance costs, will be solely the responsibility of Lessee.
ARTICLE 8 PREMISES CLEAN -UP BOND.
8.1 On an annual basis, Lessee shall furnish to the District a bond or a deposit covering
the faithful performance of Lessee's Premises clean-up obligations upon expiration or other
termination of this Lease, as detailed in Articles 2.3 and 7. 1, in such form as the District may
prescribe, and with such sureties as the District may approve, in the exercise of reasonable judgment.
ARTICLE 9 INDEMNITY.
9.1 Lessee hereby indemnifies and shall defend, protect, and hold harmless the District,
and any successors, and all of its directors, officers, employees, or authorized agents or
representatives, and affiliates from and against any and all suits, actions, legal or administrative
proceedings, claims, demands, damages, losses, liabilities, recoveries, deficiencies, interest,
attorney's fees, costs, and expenses of whatsoever kind or nature, whether arising before or after
termination of the Lease, and in any manner directly or indirectly caused, occasioned, or contributed
to in whole or in part by reason of any act, omission, fault, or negligence, whether active or passive,
of Lessee, or of anyone acting under its direction or control, or on its behalf in connection with or
incident to the performance of this Lease. Lessee's aforesaid indemnity and hold - harmless
agreement shall not be applicable to any liability to the extent caused by the active negligence or
willful misconduct of the District or its representatives.
ARTICLE 10 HAZARDOUS MATERIALS.
10.1 Definition of Hazardous Materials. For purposes of this Lease, the term
"Hazardous Materials" means any hazardous or toxic substance, material, or waste that is or
becomes regulated by any local governmental authority, the State of California, or the United States
of America. Hazardous Materials include, without limitation, the following: (i) any pollutant, oil, or
hazardous substance, identified or listed pursuant to Sections 307, 311, or 502 of the Federal Water
Pollution Control Act (33 U.S.C. §§ 1317, 1321, and 1362); (ii) any element, compound, mixture,
solution, or substance designated pursuant to Section 102 of the Comprehensive Environmental
Response Compensation and Liability Act ( "CERCLA ") (42 U.S.C. § 9602); (iii) any substance or
material having the characteristics identified under or listed pursuant to Section 3001 of the
comprehensive Recovery Act ( "RCRA ") (42 U.S.C. § 6921); (iv) any petroleum, crude oil, or any
fraction of either compound that is not otherwise specifically listed or designated under items (i)
through (iii); and (v) any waste or material, including asbestos and lead, that is listed or meets any
identification or toxicity criterion under applicable laws.
10.2 Identification of Materials on the Premises. All Hazardous Materials Lessee uses
or stores on the Premises on a continuous basis in quantities greater than 50 gallons for liquids or
200 kilograms for solids are identified in Exhibit B. Additionally, if Lessee creates or produces any
waste stream containing Hazardous Materials in quantities greater than 100 kilograms per month,
such Hazardous Materials must be identified in Exhibit B.
If Lessee intends to use or store any Hazardous Materials on the Premises in quantities noted
herein not listed in Exhibit B, Lessee must inform the District of such intention in writing.
Furthermore, if Lessee creates or produces any waste stream containing Hazardous Materials in
quantities noted herein not listed in Exhibit B, Lessee must inform the District in writing of such
creation or production of waste stream containing Hazardous Materials.
If, as a result of the notice requirement as provided herein, the District determines Lessee has
changed or increased the number of Hazardous Materials on the Premises to suggest a change in
Lessee's operations, the District may, in its own discretion, require reasonable assurances designed
to provide additional protection to the District resulting from such changed operations. Such
reasonable assurances may include, but are not limited to, increased bonding, additional insurance
coverage, and other similar provisions.
10.3 Indemnification. Lessee hereby indemnifies and shall defend, protect, and hold
harmless the District, and any successors, and all of its directors, officers, employees, authorized
agents or representatives, and affiliates from and against any and all suits, actions, legal or
administrative proceedings, claims, demands, damages, losses, liabilities, recoveries, deficiencies,
interest, attorney's fees, costs, and expenses of whatsoever kind or nature to the extent arising out of
or related to the use, generation, storage, treatment, disposal, or transportation by Lessee of
Hazardous Materials on the Premises. However, this provision does not provide indemnification for
Hazardous Materials contamination that originates outside or migrates to the Premises through no act
of Lessee, including any of its directors, officers, partners, employees, authorized agents,
representatives, affiliates, or anyone working for, with, or on behalf of Lessee.
10.4 Interpretation. Nothing in this lease is intended to suggest that prior versions of the
leases between the District and Lessee did not provide indemnification for the District by Lessee of
any Hazardous Materials contamination of the Premises created by Lessee.
ARTICLE 11 INSURANCE.
11.1 Lessee, at its sole expense, shall maintain in effect at all times during the performance
of its obligations hereunder, Comprehensive General Liability Insurance coverages with limits not
less than those set forth below with insurers and under forms of policies satisfactory to the District.
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11.2 General Liability. Insurance, including contractual liability, independent
contractors, and broad form property damage coverages. This insurance shall be in a comprehensive
occurrence form with an endorsement naming the District as an additional insured and with a
standard cross - liability clause or endorsement. The limit amount for this insurance shall not be less
than $5,000,000 per occurrence combined single limit for bodily injury and property damage.
11.3 The insurance policy described above shall include the following provisions or have
them added by endorsement:
(a) The coverages shall be primary, and no other insurance or self - insurance such
as may be utilized by the District shall contribute to a loss under the policy.
(b) The policy shall not be canceled or materially altered without thirty (30) days
prior written notice to the District.
(c) The certificates and endorsements are to be signed by a person authorized by
the insurers to bind coverage on their behalf.
11.4 The insurer(s) utilized shall conform to the following terms:
Insurers shall have at least an "A" policyholder rating and a "VII" financial rating in
accordance with the most current Best's Key Rating Guide.
11.5
(a) Lessee shall furnish the District, no later than ten (10) days prior to the
expiration of the current insurance, with adequate certificates of insurance and with original
endorsements affecting coverage as will demonstrate that the provisions and/or requirements of this
section have been complied with.
(b) Lessee shall provide thirty (30) days' prior written notice to the District
before the policy is canceled or materially altered.
11.6 Lessee shall maintain Workers' Compensation and Employer's Liability coverages
per the statutory requirements at the location of work and to the extent included under the Workers'
Compensation Insurance Policy.
11.7 The District reserves the right to require receipt of complete copies of all required
insurance policies at any time, but not more than three (3) times during the Lease Term.
ARTICLE 12 SLUDGE ASH DISPOSAL.
12.1 The parties recognize that an agreement pursuant to which Lessee will take all or a
portion of the District's sludge ash which is generated by the District's sludge incinerators, may be
beneficial to each party. The parties agree to cooperate in good faith to explore this alternative as
may be appropriate during this Lease.
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12.2 The parties agree that to the extent Lessee can receive all or a portion of the District's
sludge ash, Lessee's Rent will be reduced in proportion to the number of tons of sludge ash Lessee
received in the prior month. The rate by which Lessee's Rent will be reduced shall equal one-
half ( %2) of the then current cost of transportation and disposal costs incurred by the District for
disposal of its sludge ash through its then existing disposal vendor multiplied by the number of tons
of sludge ash accepted by Lessee.
12.3 Lessee does not commit to taking all or any specific portion of the District's sludge
ash, nor does the District commit to deliver all or any specific portion of its sludge ash to Lessee.
ARTICLE 13 CONFLICT OF INTEREST.
13.1 Lessee hereby warrants and represents to the District that no officer or employee of
the District, nor any member of the District's Board of Directors, has or will have, directly or
indirectly, any interest whatsoever in this Lease.
ARTICLE 14 ASSIGNMENT.
14.1 This Lease is personal, is not assignable, and is not transferable. Any attempt by
Lessee at assignment without the prior written consent of the District , which shall not be
unreasonably withheld, shall constitute a breach of this Lease, and shall void such assignment.
Additionally, the District may opt to enlist any other remedies available to it, such as termination of
the Lease pursuant to Article 17. The District may engage appropriate professionals to analyze the
qualifications of a proposed assignee to ascertain the ability of such assignee to perform Lessee's
obligations under this Lease, Lessee shall pay the District's reasonable out -of- pocket expenses not to
exceed Two Thousand Five Hundred Dollars ($2,500.00) per analysis.
14.2 Assignment shall include, but shall not be limited to: (i) a sale, exchange, or other
transfer of substantially all of Lessee's assets dedicated to service under this Lease to a third party;
(ii) a sale, exchange, other transfer of more than 50 % of the limited liability company membership
interests of Lessee to a third party other than from one member to another or members of their
immediate families, if said sale, exchange, or transfer results in a change of control of Lessee;
(iii) any dissolution, reorganization, consolidation, merger, recapitalization, stock issuance or
reissuance, voting trust, pooling agreement, escrow arrangement, liquidation, subcontracting or
lease -back payments or other transactions which result in any change of ownership or control of
Lessee; (iv) any assignment by operation of law, including insolvency or bankruptcy, making
assignment for benefit of creditors, writ of attachment for an execution being levied against this
Lease, appointment of a receiver taking possession of Lessee's property, or transfer occurring in the
event of probate proceedings; and (v) any combination of the foregoing (whether or not in related or
contemporaneous transactions) that has the effect of any such transfer or change of ownership, or
change of control of Lessee.
ARTICLE 15 SUBLETTING.
15.1 Lessee shall not sublease the Premises or any portion thereof without the express,
written consent of the District, which consent shall not be unreasonably withheld, conditioned, or
delayed.
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15.2 If the District consents to a sublease, nothing in such consent shall be construed to
waive the requirements of Article 4, or any other provision in this lease. Thus, should a proposed
subtenant intend to use the Premises for purposes other those set forth in Section 4. 1, Lessee must
obtain the written consent of the District to expand the use of the Premises before or at the same time
as requesting the consent of the District for a sublease.
15.3 Any sublease shall incorporate by reference the following terms and provisions of this
lease, as fully set forth herein, and subtenant shall be bound by all terms and provisions: Article 5
(Entry and Inspection); Article 6 (Utilities); Article 9 (Indemnity); Article 10 (Hazardous Materials);
Article 11 (Insurance); Article 14 (Assignment); Article 15 (Subletting); Article 16 (Taxes and
Permits); Article 17 (Default and Termination); and Article 19 (Costs of Suit), Article 25 (Liquidated
Damages).
15.4 The District hereby consents to the sublease dated prior to this Lease with Lessee's
subtenant County Asphalt, LLC. The District also consents to the sublease dated prior to this lease
with Lessee's subtenant Right Away Readi -Mix. However, such subleases shall be subject to the
terms of this Lease including the Term.
ARTICLE 16 TAXES AND PERMITS.
16.1 Lessee agrees to be responsible for and pay all taxes and all necessary permits, if any,
that arise by virtue of the imposition of a possessory interest tax and all other taxes and necessary
permits that arise from Lessee's use of the property.
ARTICLE 17 DEFAULT AND TERMINATION.
17.1 Notwithstanding the District's ability to impose liquidated damages in cases of
specific breaches, as provided in Article 25, if Lessee fails, neglects, or refuses to perform, meet, or
observe any of Lessee's obligations hereunder and does not cure (or commence to cure such default,
where cure cannot reasonably be achieved within such time), after written notice from a District
manager with any authority over the administration of this Lease (Lease Manager) within five (5)
business days for all monetary defaults, or thirty (30) days for all other defaults, the District may
proceed to terminate the Lease upon providing a written notice of termination to Lessee in the
manner prescribed in Article 20 below. If Lessee shall abandon or vacate the Premises, the District,
at any time thereafter, without notice or demand, may lawfully re -enter the Premises as provided by
law, and expel, remove, and put out Lessee, and may remove all personal property therefrom, using
such force as may be necessary to repossess and again enjoy said the Premises as before this Lease,
without prejudice to any remedies which the District might otherwise have to recover for arrears for
Rent or for breach of covenant or condition or any other rights or remedies which the District may
have, and without liability to any person for damages sustained by reason of such removal.
17.2 If a claim of default pertains to an obligation of Lessee under Article 4 or 7, the
provisions of Article 25 shall be observed if applicable prior to providing a notice of termination.
Notwithstanding the notice and liquidated damage provisions of Article 25, if there are three (3) or
more impositions of liquidated damages in a one (1) year period at any time during the extended
term, the District may consider this a default and provide a notice of termination.
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ARTICLE 18 CALIFORNIA INTEGRATED WASTE MANAGEMENT ACT
RECYCLING AND DIVERSION REPORTING.
18.1 Lessee agrees to provide, upon request of one of the following cities or agencies,
made no more than once per lease year and upon not less than five (5) business days' prior notice,
such data as is available to Lessee concerning tonnage of concrete and asphalt recycled by Lessee, to
Contra Costa County and the cities within Contra Costa County, or to the Central Contra Costa Solid
Waste Authority on behalf of said cities and agencies, in order to facilitate the tracking by said
entities of the total tonnage of recycled and diverted asphalt and concrete materials generated
through Lessee's operations on the Premises. The data to be provided pursuant hereto shall include
information as to the tonnage of recycled asphalt and concrete and as to the community of origin of
said materials brought to the Premises for recycling by Lessee, to the extent such information is
provided by third parties who bring such materials to the Premises. Lessee shall not be responsible
for any errors in information reported to Lessee regarding the origin of asphalt and concrete
materials brought to the Premises by third parties for recycling.
ARTICLE 19 COSTS OF SUIT.
19.1 If legal action shall be brought by the District for unlawful detainer of the Premises,
or for the recovery of any rent due under the provisions of this Lease, or brought by either of the
parties for the breach of any term, covenant, or provision hereof, the party prevailing in said action
shall be entitled to recover from the party not prevailing costs of suit and a reasonable attorney's fee
which shall be fixed by the judge of the court.
ARTICLE 20 NOTICES.
20.1 Except as provided in Article 25 below, wherever this Lease provides for notices
between the parties, or wherever the law requires or give the right of serving a notice, the same shall
be sent by registered or certified mail, addressed as follows:
If to District:
Central Contra Costa Sanitary District
Environmental Services Division Manager
Purchasing and Materials Manager
5019 Imhoff Place
Martinez, CA 94553
with a copy to:
District Counsel
c/o Central Contra Costa Sanitary District
5019 Imhoff Place
Martinez, CA 94553
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If to Lessee:
County Quarry Products, LLC
ATTENTION: Charles A. McDowell and
Doug Foskett, Managers
5501 Imhoff Drive
Martinez, CA 94553
with copy to:
Wendel, Rosen, Black & Dean LLP
ATTENTION: Thomas A. Palmer and
Matthew E. Dambrov
1111 Broadway, 24th Floor
Oakland, CA 94607
ARTICLE 21 REPRESENTATIONS AND WARRANTIES OF DISTRICT.
21.1 The District represents and warrants that the District has full power and authority to
execute and deliver this Lease and to consummate the transactions contemplated herein.
ARTICLE 22 REPRESENTATIONS AND WARRANTIES OF LESSEE.
22.1 Lessee represents and warrants that Lessee has full power and authority to execute
and deliver this Lease and to consummate the transactions contemplated herein.
ARTICLE 23 COMPLETE AGREEMENT.
23.1 This Property Lease constitutes the entire agreement between the District and Lessee
with respect to the Premises. Any representation or promise of the parties relating to the subject
matter shall not be enforceable unless it is contained in this Lease or in a subsequent written
agreement executed by the parties.
ARTICLE 24 INTERPRETATION.
24.1 Both parties have had ample opportunity, with the benefit of counsel, to comment
upon the contents of this Property Lease; therefore the rule that ambiguities in contracts are to be
construed against the drafter, and any related rules, shall not apply.
The undersigned agree to all terms and conditions of this Lease, and the signatories hereto
certify and warrant that they are authorized to sign.
ARTICLE 25 LIQUIDATED DAMAGES.
25.1 The parties agree that it would be impractical or impossible to determine the extent of
damages that would be incurred by the District as a result of a breach by Lessee of any of the use and
maintenance provisions set forth in Articles 4 and 7 of this Lease, and that the amount of the
liquidated damages described below is a reasonable estimate of the actual damages that the District
would suffer if a breach were to occur.
If at any time, and from time to time during the Lease Term, Lessee does not comply, in the
reasonable determination of the District, with any one or more of the maintenance and compliance
provisions of Articles 4 and 7, Lessee shall pay the District the equivalent of one day's Rent for
every day of noncompliance as liquidated damages. Liquidated damages may be imposed as
follows:
The District will provide a notice of non - compliance from a Lease Manager to Lessee by a
telephone call to Chris Gray or Doug Foskett, followed by notice in writing sent by email to Chris
Gray at cgraycounty @aol.com and to Doug Foskett at dafoskett@icloud.com. If the District does
not receive an email response acknowledging receipt of its emailed notice, the District shall hand -
deliver the notice to Lessee at the Premises. Upon delivery of the notice, either by telephone call,
email, or hand - delivery, Lessee shall have 48 hours, excluding Sundays and holidays when the
Lessee's facilities are not operating, to comply with the District's request or use best efforts to
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commence compliance if it cannot be reasonably achieved in 48 hours. If compliance is so achieved,
no liquidated damages shall be imposed and the matter shall not be deemed to constitute a liquidated
damage event.
If a breach of the same compliance or maintenance provision occurs three (3) or more times
within twelve (12) months, liquidated damages will be imposed on the third or subsequent events as
provided for in the second paragraph of this Article 25, regardless of whether each breach is cured
within 48 hours as set forth in Article 17.
CENTRAL CONTRA COSTA SANITARY DISTRICT
By:
Name:
Title:
COUNTY QUARRY PRODUCTS, LLC
Charles A. McDowell
Partner
COUNTY QUARRY PRODUCTS, LLC
am
Doug Foskett
Partner
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Exhibits A — C
Exhibits A — C to the County Quarry Lease Agreement are available for review
at the below listed location.
We apologize for any inconvenience.
Central Contra Costa Sanitary District
4849 Imhoff Place, Martinez
Monday through Friday: 8:00 a.m. to 5:00 p.m.
Please contact Elaine R. Boehme, Secretary of the District, with any questions:
Telephone: (925) 229 -7303
Email: eboehme c.,centralsan.org