J - Malibu

City Council Meeting
02-08-10
Item
3.B.4.
Council Agenda Report
To:
Mayor Barovsky and Honorable Members of the City Council
Prepared by:
Reva Feldman, Administrative Services Director/Assistant City Manage~
Approved by:
Jim Thorsen, City Manager@)
Date prepared:
January 25, 2010
Subject:
Lease Agreement for 23661 Pacific Coast Highway
Meeting date:
February 8, 2010
RECOMMENDED ACTION:
Approve the Lease Agreement for 3,000 square feet of the
vacant commercial property located at 23661 Pacific Coast Highway with Super Care
Drugs, Inc.
FISCAL IMPACT: The Lease Agreement will provide a rental income stream to the City
beginning upon the Rent Commencement Date and continuing for the term of the Lease.
The Rent Commencement Date will be the date Super Care Drugs, Inc. opens for business
or six months after the execution of the Lease, but in any event, not later than August 8,
2010. The term of the Lease will be ten (10) years from the Rent Commencement Date,
subject to one ten (10) year extension for a total of twenty (20) years. The Fixed Minimum
Rent during the term of the Lease will initially commence at $144,000 per year. Minimum
Rent will be increased by three percent (3%) as of the third (3rd) lease year and every year
thereafter during the Term of the Lease.
Lease Years
1-2
3
4
5
6
7
8
9
10
11
12
Page 1 of 2
Lease Amount
$144,000
$148,320
$152,770
$157,353
$162,073
$166,935
$171,944
$177,102
$182,415
$187,887
$193,524
Agenda Item 3.8.4.
13
14
15
16
17
18
19
20
$199,330
$205,310
$211,469
$217,813
$224,347
$231,078
$238,010
$245,150
DISCUSSION:
In addition to the rent provisions summarized above, the other material
provisions of the Lease Agreement are:
•
Tenant will be required to maintain a security deposit equal to one month rent
($12,000) during the Term of the Lease.
•
Tenant will be required to provide interior and exterior improvements to the site.
•
Tenant will be responsible for an amount equal to 62% of the actual cost of common
area and exterior maintenance for the Property.
•
Tenant shall be responsible for a pro rata share of all real property
assessments and insurance costs.
taxes,
The total square footage of the 23661 Pacific Coast Highway site is 4,848 square feet. The
City is continuing to seek a tenant for the remaining 1,848 square feet and will return to
Council for final approval once a tenant is secured.
ATTACHMENTS:
Lease Agreement with Super Care Drugs, Inc.
Page 2 of 2
Agenda Item 3.8.4.
LEASE
to~
This Lease, executed as of this
day of TI\\J. 20 I 0 by and between the City of Malibu,
hereinafter called "LANDLORD," and Super Care Drugs, Inc. hereinafter called "TENANT."
WITNESSETH:
In consideration of the rent to be paid and the conditions, covenants and agreements hereinafter set
forth to be kept and performed by Tenant, Landlord hereby leases to Tenant and Tenant does hereby take,
accept and hire from Landlord the "Leased Premises" hereinafter described, for the period, and at the rental,
subject to, and upon the terms and conditions herein set forth as follows:
1.
LEASED PREMISES. The premises leased hereunder ("LEASED PREMISES") consist of
3,000 square feet of the interior space of the building, together with the common areas on the property
located in the City of Malibu, County of Los Angeles, State of California, at an address commonly referred to
as 23661 Pacific Coast Highway, as indicated on the plan attached hereto as Exhibit "A." The building and
the common areas shown on Exhibit A are together referred to as the "Property."
The premises are leased in their present "as is" condition except for the "Landlord's Improvements"
to be performed by Landlord pursuant to Paragraph 21. Landlord hereby expressly reserves for itself such
licenses or easements in, under or over the Leased Premises or any portion or portions thereof as shall be
reasonably required for the installation or maintenance of mains, conduits, pipes or other facilities to serve the
Landlord's adjacent premises, or any parry thereof, provided, however, that Landlord's use of such license or
easements will not unreasonably interfere, with Tenant's use of the Leased Premises.
Landlord and its agents shall have free access upon reasonable notice to Tenant to the Leased
Premises during all reasonable hours for the purpose of examining the same and to ascertain if Tenant is in
compliance with the terms of this Lease, to exhibit the same to prospective purchasers or tenants and to post
such notices as may be desirable or necessary in Landlord's sale judgment. Notwithstanding the foregoing,
Landlord agrees not to display a "For Lease" sign or similar such sign dealing with the expiration or
termination of Tenant's leasehold except during the last six months of the term of this Lease and subject to
Tenant's reasonable right of approval of the location of such signs.
2.
TERM. The term of this Lease (the "TERM") shall be for a period of ten years commencing
on the date of execution.
.
In the event the Term would expire on the day other than the last day of a calendar month, the Term
shall extend to the end of the calendar rnonrh during which the Lease would otherwise expire.
3.
PAYMENT OF RENT. Tenant hereby covenants and agrees to pay rent to Landlord in the
form of "Fixed Minimum Rent," and "Additional Rent" (collectively refe~red to herein as "RENT"). The
payment of Rent and any other amounts required to be paid hereunder shall begin on the earlier of the date
Tenant opens for business or six months after the execution of this Lease, whichever is earlier (the "Rent
Commencement Date.") Rent and all other sums payable by Tenant under this Lease shall be paid when due
without prior notice or demand herefor (unless such prior notice or demand is expressly provided for in this
Lease), shall be payable without any deductions or setoffs or counterclaims whatsoever, and shall be paid by
Tenant to Landlord at the office address of Landlord in accordance with Paragraph 20, or to such payee
and/or such other place as may be designated from time to time by notice from Landlord to Tenant. All Rent
shall be paid in lawful currency of the United States of America. Time is of the essence in the payment of Rent
and all other slims payable hereunder.
4.
RENT. Commencing on the Rent Commencement Date, Tenant shall pay to Landlord, as
rental hereunder, the aggregate of the following:
A. "FIXED MINIMUM RENT" payable in equal monthly installments of Twelve Thousand
Dollars ($12,000) during the first year of the initial Lease term.
There shall be no increase 111 Fixed
Minimum Rent for the first two years of the initial Lease term. Commencing at the start of year three of the
initial Lease term, the Fixed Minimum Rent shall increase on an annual basis during the initial Lease term by
three percent.
In no event shall the Fixed Minimum Rest be adjusted downward in any period. Should the
Rent Commencement Date commence on a day other than the first day of the month, the first monthly
installment of Fixed Minimum Rent shall be prorated on the basis of a thirty (30) day month.
B. "ADDITIONAL RENT" in advance (monthly or quarterly or otherwise as Landlord shall
designate) the aggregate of the following: (0 annual "Taxes and Assessments" as defined in Paragraph 9; (i0
annual premiums for insurance carried by Landlord pursuant to Paragraph 10; (iii) "Repairs" and other
charges as described in Paragraph 7 incurred or to be incurred in connection with the operation of the Leased
Premises; (iv) common area and exterior maintenance costs as specified in subparagraph (C); and (v) all other
sums of money or other charges to be paid by Tenant to Landlord pursuant to this Lease. It is understood
that this is a net, net, net lease and Tenant is responsible for its proportional share of all expenses of
occupying and operating the Premises during the term of this lease except only as specifically provided
otherwise herein.
C.
COMMON AREA AND EXTERIOR MAINTENANCE COSTS. Tenant shall pay to
Landlord an amount equal to 62% of the actual cost of common area and exterior maintenance for the
Property. Common area and exterior maintenance' are defined as all areas and facilities outside the Leased
Premises described in .Exhibir "A"and on the Property that are for the general nonexclusive use of Landlord,
Tenant, and other Tenants of the shopping center and their respective 'employees, suppliers, customers, and
invitees, including but not limited to exterior surfaces of the buildings, common entrances, lobbies, corridors,
stairwells, public restrooms, parking areas, loading and unloading areas, trash areas, roadways, sidewalks,
landscaped areas, and the cost of operating, managing, insuring, equipping, lighting, repairing, replacing and
maintaining, and fire protection for the same. Tenant has the non-exclusive right to use the common areas.
The foregoing charges shall be paid in estimated amounts which shall be determined periodically by
Landlord, except as otherwise provided herein. When the actual amount of such charges is determined, an
appropriate lump sum adjustment shall be made between Landlord and Tenant, with any excess payments
made by Tenant credited to Tenant's next pavmentof such charges, and any deficiency to be paid by Tenant
within ten days thereafter.
USE. Tenant shall occupy and use the Leased Premises only for the operation of a pharmacy and general
goods retail store carrying such items as: home health care goods, sports and nutrition products, greeting
cards, small toys, sundries, gifts, packaged food and dtink items (including off-sale beer and wine) and park
visitor supplies under the trade name of Super Care Drugs, Inc. Super Care Drugs, Inc. shall be open for
business from 9:00 a.m. to 7:00 p.m. Monday through Friday and Saturday from 9:00 a.m. to 5:00 p.m. Super
Care Drugs, Inc. may be closed on Sundays and legal holidays.
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5.
Tenant shall not use or permit the Leased Premises to be used for any other use or purpose or
purposes whatsoever, or for any use that is not compliant with the City of Malibu Municipal Code and the
Local Coastal Program. Tenant use has been selected in accordance with a tenant mix and balance developed
by Landlord including exclusive rights that may have been granted to certain neighboring tenants. Tenant's
use of the Leased Premises shall in no way conflict with any such exclusive rights. Landlord represents that the
pharmacy and general goods retail store use does not conflict with any exclusive rights which have been given
to neighboring tenants, and for the purpose of this Lease, the phrase "neighboring tenants" is defined as the
present and future tenants of the following property: The approximately IS-acre parcel of land located
bounded by Civic Center Way to the north, Pacific Coast Highway to the south, Webb Way to the west and
Cross Creek Road to the east. Tenant agrees that if Tenant, its permitted successors, assigns or subtenants use
the Leased Premises fot any other use, it shall be deemed a material breach of this Lease, and, in addition to
any other remedies available to Landlord, Tenant shall indemnify, hold harmless, defend and protect
Landlord for any loss (including reasonable attorneys' fees) resulting from such use.
A. Tenant shall not:
(i)
Use or permit the Leased Premises to be used for any purpose other than that set forth
above in this Paragraph S, and further covenants and agrees, at Tenant's sole cost and expense, to comply
promptly with all statutes, ordinances, rules, orders, guidelines, judgments or regulations of any governmental
authority regulating the use or occupation of the Leased Premises. Tenant shall, at its expense, procure any
and all governmental licenses and permits, including, without limitation, sign permits, required for the
conduct of Tenant's business on the Leased Premises and shall, at all times, comply with the requirements of
each such license and permit. Landlord does not represent or warrant the fitness of the premises for the
purpose or use contemplated under this Lease, not that it will obtain for Tenant (or that Tenant will be able to
obtain) any such license or permit. Tenant shall not permit live or amplified entertainment on the Leased
Premises.
(il)
Use or permit the use of the Leased Premises [including without limitation any display
windows(s)J for use which is obnoxious to or out of harmony with the operation of a first-class prescription
pharmacy and general goods retail establishment, including, without limitation: (a) any public or private
nuisance; (b) any noise or sound that is objectionable due to intermittence, beat, frequency, shrillness or
loudness; (c) any obnoxious odor; (d) any noxious, toxic, caustic or corrosive fuel or gas; (e) any dust, dirt or fly
ash in excessive quantities; (f)any fire, explosion or other damaging or dangerous hazard, including the
storage, display or sale of explosives or fireworks; (g) any drilling for and/or removal of subsurface substances;
or (h) any dumping of garbage or refuse, and/or other use which will tend to create a nuisance or disturb
other tenants or occupants of the adjacent premises ..
(iii) Conduct or permit to be conducted on the Leased Premises any fire sale, auction,
bankruptcy sale, secondhand sale or going-our-of-business sale or similar type of sale, or utilize any unethical
method of business, provided that this provision shall not restrict Tenant's freedom to determine its own
selling prices, nor preclude any periodic sales in the normal course of business.
(iv) Allow any activity to be conducted on the Leased Premises or store any material on the
Leased Premises which will increase premiums for or violate the terms of any insurance policy maintained by
or for the benefit of Tenant or Landlord. In no event shall any explosive, radioactive, flammable or dangerous
material or substances be stored at the Leased Premises.
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(v)
Use or allow the Leased Premises to be used for sleeping quarters, dwelling rooms or
for any unlawful purpose, or permit any cooking on the Leased Premises or the sale or serving or alcoholic
beverages without Landlord's prior written consent.
(vi) Solicit business, distribute advertising, obstruct, place any merchandise, vending or
amusement machines on, or otherwise use in the conduct of its business, any part of the outside area,
including the sidewalks in front of the Leased Premises.
(vii) Erect or install any exterior signs or window or door signs, advertising media, or
window or door lettering or placards, install any exterior lighting, plumbing fixtures, shades or awnings, make
any exterior decoration or painting, build any fences, walls, barricades or other obstructions, install any radio,
television, phonograph, antennas, loudspeakers, sound amplifier, flashing or revolving lights, or similar devices
on the roof, exterior walls or in the windows of the Leased Premises, or make any changes to the storefront
without Landlord's prior written consent. Any signs, lights, advertising material, loudspeakers or anything
installed by Tenant on the Leased Premises which may be seen, heard or experienced outside the Leased
Premises must be approved in advance by Landlord in writing.
(viii) Cause or permit any waste on the Leased Premises.
B. Tenant shall comply with the following provisions:
(i)
Tenant shall keep the Leased Premises open for business from 9:00 a.m. to 7:00 p.ru.
Monday through Friday and Saturday from 9:00 a.rn, to 5:00 p.m, The Leased Premises may be closed on
Sundays and legal holidays.
(ii)
Keep the Leased Premises' entrances thereto, walkways adjacent thereto, loading
platforms, service areas, garbage and refuse storage areas free from obstruction and clean and neat, and
arrange for the prompt and frequent pickup or rubbish at such intervals as Landlord may direct.
(iii) Except for customary office supplies, office cleaning supplies, materials,
pharmaceuticals, inventory and waste used, stored, produced, dispensed or collected in the ordinary course of
~the operation of a prescription pharmacy, Tenant shall not use, generate, manufacture; produce, store, treat or
dispose of on, under or about the Leased Premises, or any part thereof, any pesticides, fungicides, solvents,
herbicides, flammable explosives, asbestos, radioactive materials, hazardous wastes, toxic substances or related
injurious materials, whether injurious by themselves or in combination with other materials (collectively,
"Hazardous Materials.") As used in this Paragraph 5.B, Hazardous Materials shall include but not be limited
to substances defined as "hazardous substances," "hazardous materials," or "toxic substances" in the
Comprehensive Environmental Response, Compensation and Liability Actof 1980, as amended; 42 U.S.c.
Section 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.c. Section 1801, et seq., the
Resource Conservation arid Recovery Act, 42 U.S.c. Section 6901 et seq.; and those substances defined as
"hazardous wastes" in Section 25117 of the California Health &Safety Code or as "hazardous substances" in
Section 20316 of the California Health & Safety Code; and in the regulations adopted and publications
promulgated pursuant to said laws.
(iv) Tenant shall indemnify, defend (with counsel selected by Landlord), protect, and hold
Landlord, and each of Landlord's officials, officers, employees, agents, successors ~nd assigns, free and
harmless from and against any and all claims, liabilities, penalties, forfeitures, losses or expenses (including
attorneys' fees) or death of or injury to any person or damage to any property whatsoever, arising from or
4
caused in whole or in part, directly or indirectly by (a) the presence in, on, under or about the Leased Premises
or discharge in or from the Leased Premises of any Hazardous Materials occurring as a result of the actions of
Tenant or Tenant's use, analysis, storage, transportation, disposal release, threatened release, discharge or
generation of Hazardous Materials to, in, on, under, about or from the Leased premises, or (b) Tenant's failure
to-comply with any Federal, State, County, Municipal, local or other law, rule, ordinance and regulation now
or hereafter in effect relating to the industrial hygiene, environmental protection, use, analysis, generation,
manufacture, purchase, transportation, storage and disposal of hazardous, toxic, contaminated, polluting and
radioactive matter, substance and wastes. Tenant's obligations hereunder shall include, without limitation,
and whether foreseeable or unforeseeable, all costs of any required or necessary repair, cleanup, detoxification
or decontamination of the Leased Premises, and the preparation and implementation of any closure, remedial
action or other required plans in connection therewith, and Tenant's obligations and indemnity hereunder
shall survive the expiration or earlier termination of this Lease. For purposes of the release and indemnity
provisions hereof, any acts or omissions of Tenant, or by employees, agents contractors or subcontractors of
Tenant or others acting for or on behalf of Tenant (whether or not they are negligent, intentional, willful or
unlawful) shall be strictly attributable to Tenant.
(v) Tenant herein covenants by and for itself, its heirs, executors, administrators and
assigns and all persons claiming under or though it that this Lease is made and accepted upon and subject to
the following conditions: 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, ancestry or national origin in the
leasing, subleasing, transferring, use, occupancy, lease or enjoyment of the premise herein' leased, nor shall
Tenant itself, or any person claiming under Q1; though it, establish or permit any such practice or practices or
discrimination or segregation with reference to the selection, location, number use or occupancy or tenants,
lessees, sublessee, subtenants or vendees in the premises leased under this Lease.
6.
UTILITIES.
Tenant agrees to pay before delinquency all charges for gas, heat,
septic/wastewater treatment, power, electricity, telephone, storm drain, water service, and water meter charges
and all other utility charges, including any hook up or connection fees or charges which may accrue with
respect to the Leased Premises during the term of this Lease, whether the same be charged or assessed at flat
rates, measured by separate meters or prorated by the utility company or Landlord. Tenant shall pay its pro
rata share of the operating expenses, taxes, maintenance,' repairs and any other expenses associated with the
privately- operated wastewater treatment system servicing the Leased Premises. Tenant's pro rata share shall be
equal to 62% of the aforementioned costs and expenses of the wastewater treatment system that are
attributable to the Leased Premises pursuant to the Wastewater Agreement' referenced in Paragraph 23.
Landlord shall in no event be liable to Tenant for any interruption in the service of any such utilities to the
'Leased Premises, howsoever such interruption may be caused; and this Lease shall continue in full force and
effect despite any such interruptions.
7.
REPAIRS. Tenant agrees that its acceptance of the Leased Premises evidenced by Tenant's
continuance in possession thereof constitutes unqualified proof that the Leased Premises are, as of the date of
delivery of possession, in a tenantable and good condition and that Tenant will take good care thereof.
Tenant hereby waives the right to make repairs at Landlord's expense under the provisions of Sections 1941
and 1942 of the Civil Code of California. Any partial destruction of the Leased Premises which Landlord is
obligated to repair or may repair under any of the provisions of Section 1932, subdivision 2 and Section 1933,
Subdivision 4 of the Civil Code of California-Is hereby waived by Tenant. As used herein throughout the
provisions of this Lease, the terms "repair" and "repairs" include repairs, replacements, restorations, renewals
and maintenance.
5
Except for Landlord's maintenance and repair responsibilities set forth in the next following
paragraph, Tenant covenants and, agrees, at Tenant's own cost and expense, to keep the Leased Premises, and
each and every part thereof,including
without limitation, all plumbing and electrical conduits, wiring,
fixtures, and pipes and all floors, flooring, vents, lighting, store fronts, plate glass and glazing, air-conditioning
and heating systems, ceilings and all other parts of the building in good condition and repair at all times
during the Term and to make promptly any and all repairs, renewals and replacements which may at any time
be necessary or proper to put and keep the Leased Premises in good condition and repair, and to keep the
Leased Premises and all appurtenances thereto in a good, clean, safe and wholesome condition at all times
during the Term. Tenant expressly agrees to pay promptly for any and all labor done or material furnished for
any work or repair, maintenance, improvements, alteration or addition done by the Tenant in connection
with these items.
The Landlord at its expense shall maintain, repair or replace the roof, foundation, and structural
portions of the Landlord's Building andall underground and overhead utilities and service lines and drops
located outside the Leased Premises, at such intervals as Landlord shall determine.
Tenant shall promptly notify Landlord-in writing of the need for any of the foregoing repairs to be
performed by Landlord and Landlord upon reasonable notice to Tenant shall have the right to enter the
Leased Premises at any time with workers and equipment as may be deemed necessary by Landlord to make
such Repairs, provided that Landlord shall perform such repairs as expeditiously as reasonably possible with
the least reasonably possible interference with Tenant's business conducted at the Leased Premises. Except for
the negligence or intentional misconduct of Landlord, in no event shall Landlord be liable to any person,
including Tenant, its agents or employees or subtenants for any loss, damage (including water damage), theft,
Or destruction of or to any merchandise, fixtures, money or other property belonging to any person as a result
of-Landlord's failure promptly or correctly to perform ·any of the foregoing Repairs or occasioned by acts of
Landlord or its agents or employees while making such Repairs. In no event shall Tenant be entitled to any
offset, abatement or reduction ill Rent during periods of.such Repairs, unless the Leased Premises cannot be
used for their intended purposes under this Lease as a result of a substantial interference due to such Landlord
Repairs, in which case Fixed Minimum Rent payable under this Lease shall abate on a daily basis to the extent
that the Premises are unusable due to such interference after the first three consecutive business days of any
such interference until such interference ceases. Landlord shall not be responsible for the cost of any repairs
occasioned by Tenant's negligence or misuse or by any unauthorized alterations or improvements to the
Leased Premises. Landlord shall not be responsible fo~ any special, indirect or consequential damages or lost
profits.
In the event Tenant fails, or refuses to perform any maintenance or repairs or to pay for any
maintenance or repair.services required of it hereunder, in addition to all other remedies available hereunder
or at law for Tenant's default, Landlord may after reasonable nonce to Tenant, but shall not be obligated to,
enter the Leased Premises with workers arid equipment and perform such maintenance and repairs or make
such payments on behalfof and ~nhe expense of Tenant, which expenses shall be repaid within ten days after
demand together with interest at the Default Rate. Following reasonable notice by Landlord to Tenant if time
and circumstances permit, Landlord may undertake on behalf of and at the expense of Tenant such etnergency
repairs as Landlord deems reasonably necessary.vwhich expenses shall be repaid concurrently with the next
subsequent Rent payment.
8.
ALTERATIONS. Tenant shall not make any alterations additions, modification or changes
("ALTERATIONS") to the Leased Premises without first procuring Landlord's prior written consent, which
consent shall not be unreasonably withheld or delayed. In the event the Landlord's written consent has not
6
been provided within 10 days after the receipt thereof, Tenant may proceed with required City planning
approval and permitting processes for requested alterations, additions, modifications or changes. All
alterations, additions, modifications or changes must comply with City codes and regulations. In the event
Tenant is permitted to make any Alternations under this Paragraph 8, such work will be subject to the
provisions of Paragraph 22 relating to approval of plans and construction requirements. All Alterations shall
be performed promptly, in: a workmanlike manner, in a manner not to disturb other persons and in
compliance with all required municipal approvals and final plans approved by Landlord.
Except as otherwise provided herein, any Alterations to the Leased Premises or the building of which
they are a part which are required by reason of any present or future law, ordinance, rule, regulation or order
of any governmental authority having jurisdiction over the Leased Premises or of any insurance company
insuring the Leased Premises, and regardless of whether or not such Alteration pertains to the nature,
construction or structure or the building or to the use made thereofby Tenant, shall be at the sole cost of
Tenant regardless of whether the work is performed by Landlord or Tenant. All Alterations to or upon the
Leased Premises, except removable. trade fixtures, shall at once when made or installed be deemed to have
attached.to the freehold and to have become the property of Landlord at the option of Landlord.
9.
TAXES AND ASSESSMENTS. Tenant shall be responsible for, and shall pay to Landlord,
Tenant's pro rata share of all real property taxes and assessments (whether special or general) levied and
assessed against the tax parcel upon which the Leased Premises is situated, including and without limitation,
fees, installments on bonded indebtedness, city business license or surcharges, including without limitation,
any tax, excise on rent, or levy for parking privileges or in any way relating to environmental protection, or any
other tax, levy, assessment or other charge of any nature whatsoever imposed by any governmental authority
having jurisdiction over the Leased Premises and/or the Property and levied upon or payable in connection
with the Leased Premises or the Property, the operation thereof or business conducted therein, including any
such tax, fee or assessment levied or assessed in lieu of such real property taxes (all of which are herein referred
to as "TAXES AND ASSESSMENTS.") Tenant acknowledges that Proposition 13 was adopted by thevoters
of the State of California in the June 1978 election and that taxes,assessmenrs, fees, levies and charges may be
imposed by governmental agencies for certain services including but not limited to, fire protection, street,
sidewalk and road maintenance, refuse removal and other governmental services. Landlord and Tenant hereby
agree that the Tenant shall be responsible, without limitation, for its proportional share ~f all such taxes,
assessments, fees, levies and charges for such services, including but not limited to bond installments on the
Special AssessmentNo. 1904H for the Malibu Regional Sewer Project, County Improvement No. 2640R and
Integrated Financing District No. 1. For purposes of this Paragraph 9, the denominator for computing
Tenant's pro rata share shall be the total floor area of such buildings as are included in the same tax parcel as
the Leas~d Premises. In the event any Taxes and Assessment are not timely paid by Tenant in accordance with
Paragraph 4, Landlord may, in addition to all other remedies permitted in this Lease, add an additional charge
of $100 in order to reimburse Landlord for its administrative costs incurred as a result of Tenant's failure to
timely pay and may, in addition thereto, charge Tenant interest upon the unpaid Taxes and Assessments from
the due date thereof to the date of payment at the maximum lawful rate [or if there shall be no prescribed
maximum rate, then ten percent (10%) per annum]."
Tenant shall pay, before delinquency, all property taxes and assessments on the furniture, fixtures,
equipment, merchandise and other property of Tenant at any time situated or installed in the Leased Premises
and, in addition, on improvements in the Leased' Premises made or installed by Tenant subsequent to the
date of execution. If at any time during the Term any of the foregoing are assessed as a part of the real.
property of which the Leased Premises are a part, Tenant shall pay to Landlord upon demand the amount of
such additional taxes as may be levied against said real property by reason thereof. For the purpose of
7
determining said amount, figures supplied by the Los Angeles County Assessor as to the amount so assessed
. shall be conclusive.
10.
INSURANCE.
A. At all times during the term of this Lease, Landlord shall maintain in full force and effect
with insurance companies licensed to do business in the State of California and otherwise satisfactory to
Landlord in its sole discretion one or more policies, including the following Coverages:
1.
General public liability and property damage insurance against claims for bodily injury,
death or property damage occurring in or upon the Leased Premises with limits of coverage of not less than
$2,000,000.00 combined single limit. Notwithstanding the foregoing, Landlord may carry additional
insurance increasing the foregoing limits in reasonable amounts if it deems such increases desirable to protect
Landlord and Tenant.
2.
Fire and extended coverage, or all-risk casualty insurance, including vandalism,
malicious mischief, (earthquake, flood and rising waters insurance at commercially reasonable rates at the
option of Landlord), loss of rental income, and sprinkler leakage (if Leased Premises contain sprinklers)
insurance in such form and with such covered perils as Landlord deems appropriate in its sole discretion
insuring the Leased Premises and improvements made by Landlord on the Leased Premises in an amount
equal-to the full replacement value thereof. All proceeds shall belong to and be the sole property of Landlord,
and Tenant hereby assigns to Landlord or its nominee all of Tenant's right, title and interest thereto.
Landlord shall have the right to maintain blanket policies with the foregoing limits. Tenant
shall pay its allocable share of such premiums based upon the insurance company's allocation of premiums or
property values, or if no allocation is stated in the blanket policy or is not forthcoming from the insurance
carrier, then Tenant shall pay its Pro Rata Share of such premiums. Tenant's "PRO RATA SHARE" shall be a
fraction, the numerator of which is the total of square feet of ground floor area in the Leased Premises and the
denominator of which is the total number of square feet of ground floor area of all buildings covered by the
blanket policy.
B. At all times after delivery of possession of the Leased Premises to Tenant, Tenant shall
maintain in full force and effect one or more policies evidencing the following coverages:
1.
Comprehensive general public liability and property damage insurance insuring all
premises, operations, independent contractors, products liability and completed operations an:d contractual
liability arising from Tenant's operations, and its possession, maintenance or use of the Leased Premises, and
ways immediately adjacent thereto, with limits of liability of not ·less than $1,000,000.00 for each person,
$1,000,000.00 for each occurrence for property damage, or a combined single limit of $3,000,000. Tenant
shall increase the foregoing limits if Landlord reasonably deems such increase desirable to protect Tenant and
Landlord. The insurance coverage under this subparagraph 1 shall, in addition, extend to any liabilities of
Tenant arising out of the indemnities contained in Paragraph 5 and 17.
2.
Comprehensive automobile liability and property damage insurance insuring all
owned, nonowned and hired vehicles used in the conduct of the Tenant's business and operated upon or
parked upon the Leased Premises with limits of liability of not less than $3,000,000.00 combined single limit
for death or injury to one or more persons in a common accident or occurrence, and $150,000.00 for each
8
occurrence for property damage. Tenant shall increase the foregoing limits if Landlord reasonably deems such
increase desirable to protect Tenant and Landlord.
3.
Standard form workers' compensation and employer's liability insurance covering all
Tenant's employees for injury or illness suffered in the course of or arising out of their employment, providing
statutory workers' compensation benefits and employer's liability limits of liability of not less than
$1,000,00.00.
5.
Fire and extended coverage, vandalism and malicious mischief, and other perils at
Landlord's discretion, insurance in an amount equal to the full actual cash value of all furniture, fixtures,
stock "and equipment, including fixtures and improvements and betterments installed by Tenant in the Leased
Premises, any deductible provisions of which are solely for the account of Tenant. All proceeds of such
property insurance shall be paid to Tenant and used for the repair and replacement of the furniture, fixtures,
stock, equipment, improvements and betterments so insured unless this Lease is terminated due to such
damage and destruction.
6.
At all times during which Tenant is doing construction work in the Leased Premises,
"All Risk" builders risk insurance with limits of coverage not less than 100% of full replacement cost of
Tenant's improvements and owners' and contractor's protective insurance and independent contractor's
insurance with coverage of at least $3,000,000.00 for a single occurrence and for property damage.
7.
All insurance provided by Tenant shall name Landlord, its -officials, officers,
employees and agents and such other persons or entities as Landlord may from time to time designate, as
named insureds, as their respective interests may appear. No such policy may contain a deductible amount
greater than $25,000.00 unless approved by Landlord in writing. Tenant will self insure up to said $25,000.00
deductible. Prior to Tenant accepting possession of the Leased Premises or undertaking any work in the
Leased Premises, and at least twenty days prior to the expiration date of any such insurance policy, Tenant
shall provide Landlord with a certification of such insurance coverage. Each such insurer shall be licensed to
do business within the State of California and shall be rated "A" or better as to policyholder rating and "X" or
better asto financial rating in Best's Key Rating Guide and shall be otherwise satisfactory to Landlord in its
sole and absolute discretion. Tenant shall procure policies for all such insurance at least thirty days before the
expiration of prior policies. All such insurance policies shall contain the following provisions: (0 the
agreement of the insurer to give Landlord and each imortgagee of Landlord at least thirty days' notice by
Certified mail prior to cancellation, change in coverage, termination, lapse or any other material change in
said policies or and of them (ii) waiver of subrogation rights against Landlord and Tenant, (iii) agreement that
"said policies are primary and noncontributing with any insurance that may be carried by Landlord, (iv) a
statement that the insurance shall not be invalidatedshould any insured waive in "writingprior to a loss any or
"all right of recovery against any party of loss accruing to the property described in the insurance policy, (v) a
cross-liability endorsement and (vi) a statement that no act or omission of Tenant shall affect or limit the
obligation of the insurance company to pay the amount of any loss sustained. Tenant's insurance may be in
the form of a general coverage or blanket policy covering the Leased Premises and other premises, provided
that landlord, its officials, officers, employees and agents, and such other persons or entities as Landlord may
from time to time designate, are specifically named herein: as additional insureds and provided, further, that
the requirements of this Paragraph 1O.Bare otherwise met.
8.
All proceeds of such property insurance except for Tenant's property insurance on its
property set forth in Paragraph B.5 above shall be paid to Landlord and may be used for the repair or
replacement of the Building, the Leased Premises, the plate glass and the improvements so insured. In the
9
event this Lease shall terminate for any cause while such proceeds are held by Landlord, Landlord shall have
the right to apply such funds for the redevelopment of the Leased Premises. A duplicate original of all such
'policies shall be delivered to Landlord at least fifteen days prior to the time such insurance is first required to
be carried by Tenant and thereafter at least fifteen days prior to the expiration or cancellation of any such
policy. In the event Tenant fails at any time during the Term to obtain such insurance or to provide such
evidence thereof Landlord shall have the right bur not the duty to procure such insurance and Tenant shall
pay to Landlord the costs and expenses thereof plus interest at the Default Rate within ten days after demand
therefor. Tenant and Landlord hereby waive any right of subrogation against the other party hereto, subject to
approval of their respective insurance carriers.
11.
DAMAGE AND DESTRUCTION~ In the event the Leased Premises, or any party thereof,
shall be damaged by any casualty, this Lease shall remain in full force and effect, without abatement of Rent or
any other charges (except as expressly set forth in this Paragraph 11) and Landlord shall repair such damages to
the extent of the repairs to be performed by Landlord under the third paragraph of Paragraph 7 of this Lease,
as rapidly as reasonably possible and Tenant shall be responsible for the repair, restoration and replacement of
the repairs to be performed by Tenant under Paragraph 7 of this Lease, its stock in trade, trade fixtures,
furnishings, furniture, equipment and other personal property. In such event, Fixed Minimum Rent shall
abate to the extent Landlord receives rental loss insurance proceeds attributable to the Leased Premises; In no
event shall Additional Rent under this Lease abate. Tenant hereby waives the provisions or California Civil
Code Section 1932 and 1933(4) and elects to have damage or destruction of the Leased Premises governed by
this Paragraph.
Notwithstanding any other provision of this Paragraph 11 to the contrary, if the Leased
Premises shall be damaged by an event that is not covered by Landlord's property insurance,' and such
uninsured damage shall be to the extent of more than fifty percent of the replacement value of the Leased
Premises at the time of such damage, then Landlord may at its election upon notice to Tenant, within ninety
days after such damage, terminate this Lease as of the date of such damage.
12.
EMINENT DOMAIN. If there is anytaking of or damage to all or any part of the Leased
Premises or any interest therein because of the exercise of the power of eminent domain, whether by
condemnation proceedings or otherwise, ot any transfer of any part of the Leased Premises or any interest
therein made in avoidance of the exercise of the power of eminent domain (all of the foregoing being
hereinafter referred to as a ~'TAKING") prior to or during the Term, the rights and obligations of Landlord
and Tenant with respect to such Taking shall be as foHows:
A. If there is a Taking of all of the Leased Premises, this Lease shall terminate as of the date of
such Taking.
B. If ten percent (10%) or more of the ground floor area of the Leased Premises shall be Taken,
then, in that event, Tenant or Landlord shall be entitled to elect either to terminate this Lease within thirty
days after the date Landlord receives notice that possession or title to the portion of the Leased Premises
subject to such Taking has vested in the condemner. 'If neither parry elects to terminate the Lease, Landlord
may rebuild the remainder of the Leased Premises at its option.
C. If this Lease is terminated in accordance with the provisions of Paragraph 12A, such
termination shall become effective as of the date physical possession of the particular portion is Taken or
immediate possession is ordered. The parties shall be released from all further liability. hereunder after such
date. If this Lease is not terminated as provided in this Paragraph 12, or if less than ten (10%) of the ground
10
floor area of the Leased Premises shall be Taken, the annual Fixed Minimum Rent set forth in Paragraph 4 for
the remainder of rhe Term shall be reduced by the proportion which the number of square feet of ground
floor area of the Leased Premises taken bears to the total ground floor area of the Leased Premises immediately
before the Taken, and Tenant's Pro Rata Share shall be recalculated as of the date physical possession of the
particular portion is Taken.
D. The entire award or compensation in such proceedings, whether for a total or partial Taking or for
diminution in the value of the leasehold or for the fee shall belong to and be the property of Landlord, and
Tenant hereby assigns to Landlord all of Tenant's interest in any award. However, Tenant shall have the right
to recover from the condemning authority, but not from Landlord, such compensation as may be separately
awarded or unrecoverable by Tenant in Tenant's own right on account of any and all loss of Tenant's
merchandise, furniture, trade fixtures, and any leasehold improvements paid for by Tenant, and for reasonable
relocation costs. Tenant waives and releases any recovery for loss of good will or profits, value of this leasehold
and any other relief as Tenant may be entitled to under then current law."
13.
ASSIGNMENT AND SUBLEASE. Landlord has entered into this Lease in order to obtain
the benefit of Tenant's business for the preservation of the health, safety, welfare and general convenience of
the City's residents and visitors, and the following prohibitions are expressly agreed toby Tenant in
consideration or such fact. Tenant shall not assign this Lease or any interest therein, whether voluntarily, by
operation of law, or otherwise, and shall not sublet the Leased Premises or any part thereof (collectively
referred to herein as "TRANSFER"), except by written permission and consent of Landlord being first had and
obtained, which consent shall not be unreasonably withheld. The consent of Landlord to any Transfer shall
not he unreasonably withheld if: (a) at the time of the Transfer Tenant is not in default in the performance.
and observance of any of the covenants and conditions of this Lease or such default is cured by the transferee
concurrently with the Transfer; (b) the transferee or Tenant shall expressly assume in writing all of Tenant's
obligations hereunder; (c) Tenant shall provide proof to Landlord that the transferee has a financial condition
which is reasonably satisfactory to Landlord and Landlord lender; and (d) the Leased Premises continue to be
used solely for the purposes set forth in Paragraph 5 and the transferee is, in Landlord's reasonable opinion,
capable of operating such business. The parties hereto agree that it shall not be unreasonable for Landlord to
consider the following criteria in determining whether or not to consent to a proposed Transfer: (i) net worth
of the proposed transferee; (ii) the experience of the proposed transferee in its business; (iii) the business
reputation, experience and past business success of the key personnel of the proposed transferee.
In
connection with any Transfer requested by Tenant, Tenant or the transferee shall pay to Landlord
concurrently with the request for the Transfer a fee of $1,500 to defray Landlord's costs in evaluating the
request for a Transfer, whether or not Landlord's consent is ultimately given.
Except in the case of an assignment, a Transfer shall. not relieve Tenant from liability for payment of
all Rent and other charges payable hereunder or from the obligations to keep and be bound by the terms,
conditions and covenants of this Lease. Upon the effective date of acceptance of an assignment by Landlord
and assignee, all references to Tenant herein shall cease to refer to Super Care Drugs, Inc. and shall refer to
the assignee.
The acceptance of Rent from any person other than Tenant shall not be deemed to be a waiver of any of the
provisions of this Lease, or a consent to the transfer. Consent to any transfer shall not be deemed a consent to
any future Transfer. Any merger, consolidation or transfer of corporate shares of Tenant (excluding transfers
between shareholders of Tenant existing as of the date of execution of this Lease) so as to result in a change in
the present voting control of the Tenant by the person or persons owning a majority of said corporate shares
onthe date of this Lease, shall constitute a Transfer and be subject to the conditions of this Paragraph. In the
11
event of any such Transfer, Landlord shall be entitled to one hundred percent (100%) of any sublease rental in
excess of the herein rent fairly allocable to the subleased or assigned premises payable during the term of the
sublease or assignment, after appropriate adjustments have been made to assure that all other payments,
specified in the Lease are appropriately taken into account during the term of the sublease or assignment. No
credit or deduction shall be allowed Tenant forrental paid by Tenant during any period of time the premises
remain vacant prior to commencement of the sublease or assignment. In determining the excess rent received
by Tenant in connection with any sublease or assignment, Tenant shall be entitled to deduct the following: all
reasonable and customary costs and expenses actually incurred in connection with the sublease or assignment,
including but not limited to brokers commissions, tenant improvement allowance,' free rent or other
incentives paid by Tenant to obtain the sublease or assignment. In the event Tenant sublets a portion of the
Premises. but remains as the primary tenant of the Premises, Landlord shall be entitled to ninety percent
(90%) of any sublease rental in excess of the rent herein allocable to the subleased portion of the Premises and
any other profits from said subletting; and Tenant shall be entitled to retain ten percent (10%) of any sublease
rental amount in excess of the rent herein allocable to the subleased portion of the Premise.
Any attempt or purported assignment, transfer, sublease, mortgage or other encumbrance of Ten ant's
leasehold interest hereunder or any part of such interest, whether voluntary or by operation of law, without
the prior written consent of Landlord first had and obtained in accordance with the provisions of this
Paragraph, shall be void and shall constitute a default hereunder and confer no rights whatsoever on third
parties.
14.
TENANTS DEFAULT.
The following shall be deemed to be acts of default under this
Lease:
.
A. Tenant shall fail, neglect or refuse to pay any installment of Fixed Minimum Rent, Additional
Rent or and other payment or charge, Including, without limitation, penalty charges, required to be paid by
Tenant hereunder at the time and in the amountas herein provided, or pay any moneys agreed by it to be
paid promptly when and as the same shall become due and payable during the Term, and such default shall
continue for a period of more than five days after, notice thereof in writing given to Tenant by Landlord
(which notice shall be lieu of and not in additional to any notice required under applicable law).
B. The failure of Tenant to commence its Tenant Improvements promptly after execution of this
Lease.
C. The occurrence of a Transfer,without Landlord's prior written consent.
D. Tenant shall fail, neglect or refuse to keep and perform any of the other covenants,
conditions, stipulations or agreements herein contained and covenanted and agreed to be kept al~d performed
by Tenant and such default shall continue for a period of more than thirty days after notice in writing given to
Tenant by Landlord (which notice shall be in lieu of not in addition to any notice required under applicable
law); provided, however, that if the cause for giving such notice involves the making or repairs or other matters
reasonably requiring a longer period of time than the period of such notice, Tenant shall be deemed to have
. complied with such notice if Tenant has commenced to cure such default within said thirty day period and is
diligently prosecuting such cure of completion.
'
E. Any attachment or levy or execution or similar seizure of the Leased Premises or Tenant's
merchandise, fixtures or other propertyat the Leased Premises or any foreclosure, repossession or sale under
any chattel mortgage, security agreement or conditional sales contact covering Tenant's merchandise, fixtures
12
or other property at the Leased Premises, or the filing of any petition by or against Tenant or and guarantor of
this Lease under any Chapter of the Bankruptcy Act, or the adjudication of Tenant or any guarantor of this
Lease as a bankrupt or insolvent, or the appointment of a receiver or trustee to take possession of all or
substantially all of the assets of Tenant or any guarantor of this Lease, or a general assignment by Tenant or
any guarantor of this Lease for the benefit of creditors, or any other action taken or suffered by Tenant or any
guarantor of this Lease under any state or federal insolvency or bankruptcy act and the continuation thereof
for more than twenty days.
F.
In the event of an act of default by Tenant, Landlord may, at its option:
(a)
Terminate Tenant's right to possession of the Leased Premises because of such breach
and recover from Tenant, in addition to its other remedies, all damages allowed under Section 1951.2 of the
California Civil Code, including, without limitation, (i) the worth, at the time of award of any unpaid Rent
which has been earned at the time of such teri1~inationj'(ii) the worth at the time of award of the amount by
, which any unpaid Rent which would have been earned after termination until the time of award exceeds the
amount of such rental loss that Tenant proves could have been reasonably avoided; (iii) 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 awardexceeds
the amount of such rental loss that Tenant proves could be reasonably avoidedj(iv) any other amount
necessary to compensate Landlord for all the detriment proximately caused by Tenant'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, the cost of repairing the Leased Premises and reasonable attorney's fees; and (v)
at Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from
time to rime by applicable California Law. Damages shall be due and payable from the date of termination.
For the purposes of clauses (i) and (ii) above, the "worth at the time of award" shall be computed by adding
interest at the Default Rate (which is the discount rate of the Federal Reserve Bank of San Francisco plus five
percent (5%) per annum) to the past due Rent. Forrhe purpose of clause (iii) above, the "worth at the time of
award" shall be computed by discounting the amount of the excess unpaid rent at the discount rate of the
Federal Reserve Bank of San Francisco at the time of the award plus one percent (I %). For the purposes of
clauses (i) through (v) above, annual "Rent" for the remainder of the unexpired Term shall be the Rent
(including Fixed Minimum Rent and Additional Rent) plus any other amounts payable under this Lease
during the preceding year, or, if the default occurs less than one year from the execution of this Lease, an
amount equal to one and one-half (1.5) times the average Fixed Minimum Rent for the Term; or
(b)
Not terminate Tenant's right to possession because of such breach, but continue this
Leasejn full force and effect, and in that event (i) Landlord may enforce all rights and remedies under tl~is
Lease, including the right to recovery Rent and-all other charges due hereunder as Rent and all other charges
as shall become due, and (ii) Tenant may assign' its interest in this Lease with Landlord's prior written consent,
which consent shall not be unreasonably withheld, in accordance with Paragraph 13; or;
(c)
with such forfeiture.
Declare a forfeiture of this Lease and terminate all of Tenant's tights in accordance
In the event of any reentry, Landlord may remove all persons from the Leased Premises and
all property and signs located in or about the Leased Premises and place such property in storage in a public
warehouse at the cost and risk of Tenant in accordance with applicable State and Federal laws regarding
access, storage or transfer of restricted drugs, controlled substances, dangerous drugs or dangerous devices.
Landlord shall have at all times a valid lien for all rental and other sums of money becoming due hereunder
. from Tenant upon all equipment, fixtures and furnitilreofTenant situated on the Leased Premises. Landlord
13
expressly agrees that the aforesaid lien shall be subject and subordinate to the existing or any future bank liens
on such items in connection with Tenant's working capital line of credit. Subject thereto, upon the
occurrence of an act of default by Tenant as described in Paragraph 14, Landlord shall have the option, in
addition to any other remedies provided herein or by law, to enter upon the Leased Premises with or without
permission of Tenant and take possession of any and all equipment, fixtures and furniture of Tenant situated
on the Leased Premises without liability for trespass or conversion to sell the same without notice at private or
public sale, with or without having such property at the sale, at which Landlord or its assigns may purchase
and to apply the proceeds thereof, less any and all expenses connected with the taking of possession and sale
of property as a credit against any sums due to Landlord by Tenant. Any surplus shall be paid to Tenant and
Tenant agrees to pay any deficiency forthwith. Alternatively, the lien hereby granted may be enforced by
Landlord in any manner provided by law for foreclosure of chattel mortgages. Any statutory lien for rent is
not hereby waived, the express contractual lien herein granted being in addition and supplementary thereto.
Tenant agrees to execute all documents, including ueC1 Statements, necessary to perfect this lien, the within
provision being deemed a Security Agreement upon which such perfected lien shall attach.
No reentry or reletting of the Leased Premises of any nature served under unlawful detainer action or
the filing of any unlawful detainer or similar action shall be construed as an election by Landlord to terminate
this Lease unless a written notice of such intention is given by Landlord to Tenant, and notwithstanding any
such reletting without such termination, Landlord may at anytime thereafter elect to terminate this Lease.
Except in the case of Landlord's willful misconduct, Tenant hereby waives all claims or demands for
damages that may be caused by Landlord in reentering and taking possession of the Leased Premises as
hereinabove provided and all claims or demands which may result from the destruction of or injury to the
Leased Premises and all claims or demands for damages or loss of property belonging to Tenant or to any
other person or firm that may be in or about the Leased Premises at the time of such reentry.
Nothing contained in this Lease shall limit Landlord to the remedies set forth in this Paragraph and
upon Tenant's default Landlord shall be entitled to exercise any right or remedy then provided by law or
equity, including but without limitation, the right to obtain injunctive relief and the right to recover all
damages caused by Tenant's default in the performance of any of its obligations under this Lease.
Neither this Lease nor any interest herein nor any estate created hereby shall pass by operation of law
under any state or federal insolvency or bankruptcy act to any trustee, receiver, assignee for the benefit of
creditors or any other person whatsoever without then prior written' consent of Landlord.
In addition to Landlord's rights of self-help set-forth elsewhere in this Lease, if Tenant at any time fails'
to perform any obligations under this Lease in a manner reasonably satisfactory to Landlord, Landlord shall
have the right, but not the obligation, upon giving Tenant at least three days' prior notice of its election to do
so (but in the event of an emergency, no prior notice shall be required), to perform such obligations on behalf
of and for the account of Tenant and to take all such action to perform such obligations. In such event,
Landlord's costs and expenses incurred therein shall be paid for by Tenant forthwith upon demand therefor,
with interest thereon from the date Landlord performs such work at the Default Rate. The performance by
Landlord of any such obligation shall not constitute a waiver thereof or a release ofT~nant therefrom.
If any payment of Rent or other payment hereunder is not paid when due, and if such payment is not
received on or before the seventh calendar day of the month for Fixed Minimum Rent and Additional Rent
(or within five days of the due date for any other payments due hereunder), Tenant shall pay to Landlord a
late charge equal to the greater of Ia) One Hundred and No/lOO Dollars ($100.00), or (b) five percent (5%) of
14
the Rent then payable under Paragraph 4 for such month. This provision shall not be construed to relieve
Tenant from any default hereunder arising through the failure on the part of Tenant to make any payment at
the time and in the manner specified. In addition, any sum accruing to Landlord under the terms and
provisions of this Lease which shall not be paid when due shall bear interest at the Default Rate (as defined in
Paragraph 6 above) from the date the same becomes due and payable by the terms and provisions of this Lease
until paid.
Tenant acknowledges that late or insufficient payment of Rent or other sums payable by Tenant
hereunder, or Tenant's failure to comply with the requirements of Paragraphs 5.B (i) and/or 5.B (ii) will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of such costs being extremely
difficult and impracticable to ascertain. Such costs include, without limitation, administrative costs and
expenses, late charges that may be imposed on Landlord by reason of its debt obligations and lost good will.
Therefore, certain provisions of this Lease require payment of late charges and other damages. The parties
agree that such late charges and damages represent fair and reasonable estimates of the cost and/or damages
that Landlord will endure by reason of Tenant's failure to comply with such provisions. Acceptance of any
such late charge or damages shall not constitutes waiver of Tenant's default, nor prevent Landlord from
exercising any of its other rights and remedies.
15.
DEFAULT BY LANDLORD. Landlord shall in no event be charged with default in the
performance of any of its obligation hereunder unless and until Landlord shall have failed to perform such
obligations within thirty days (or such additional time as is reasonably required to correct any such defaults)
after written notice by Tenant has been received by Landlord properly specifying wherein Landlord has failed
to perform any such obligation. This agreement is executed by an authorized officer or official of Landlord
solely as such authorized officer or official of the same and not in their own individual capacities. No official,
officer, employee, volunteer or agent of Landlord whatsoever shall be personally liable in any manner or to
any extent under or in connection with this Lease, ,and Tenant and its successors and assigns, and, without
limitation, all other persons, partnerships, corporations and entities shall not seek any damages against any of
Landlord's officials, officers,~mployees, volunteers or agents. The limitation of liability provided in this
Paragraph 15 is in addition to, and not in limitation of, any limitation of liability applicable to Landlord or
such officials, officers, employees, volunteers or agents of Landlord provided by law or by any other contract,
lease, agreement or instrument. No default by Landlord under this Lease shall give Tenant the right to
terminate this Lease.
16.
SURRENDER OF PREMISES. At the expiration or sooner termination of the tenancy
hereby created, Tenant shall surrender the Leased Premises in the same condition as the Leased Premises was
in after completion of the Tenant Improvements as provided in Paragraph 22 of this Lease, and including any
alterations or additions which Landlord elects to keep pursuant to Paragraph 8, reasonable wear and tear
excepted. Tenant shall surrender all keys for the Leased Premises to Landlord at the place then fixed for the
payment of Rent and shall inform Landlord of all c~mbinations on locks, safes and vaults, if any, in the
Leased Premises. No act or conduct of Landlord, except a written acknowledgment of acceptance of surrender
signed by Landlord, shall be deemed to be or constitute an acceptance of the surrender of the Leased Premises
by Tenant prior to the expiration of the Term. If any evidence of this Lease has been recorded, then Tenant,
upon surrender of the Leased Premises, shall execute, acknowledge and deliver, in recordable form, a
memorandum of termination of this Lease.
If at the time of installation of any of Tenant's alterations or improvements to the Leased Premises
(excluding the initial Tenant Improvements as defined in Paragraph 22), Landlord elects, by written notice to
'Tenallt, to require the removal of any of Tenant's improvements from the Leased Premises at the expiration of
15
this Lease, Tenant shall promptly upon the expiration of this Lease remove such additional improvements,
fixtures, trade fixtures and installations which are designated in said notice, and shall repair any damage
occasioned by such removal and restore the premises to its condition immediately prior to the installation of
such items, arid in default thereof, Landlord may effect said removals, restorations and repairs at Tenant's
expense. The covenants of Tenant contained herein shall survive the expiration or termination of the Term.
If Tenant or any party claiming under Tenant remains in possession of the Leased Premises, or any
part thereof after any termination of this Lease, no tenancy or interest in the Leased Premises shall result
therefrom, but such holding over shall be an unlawful detainer and all such parties shall be subject to
immediate eviction and removal and Tenant shall pay upon demand to Landlord during any period of which'
Tenant shall hold the Leased premises after the Term has expired, as damages, Rent at .the rate of One
Hundred Fifty Percent (150%) of all Fixed Minimum Rent, Additional Rent and other sums to be paid by
Tenant pursuant to this Lease, applicable to the period immediately preceding the expiration or earlier
termination of the Term.
17.
. INDEMNIFICATION, RELEASE AND LIENS.
Except for the sale negligence or
intentional misconduct of Landlord, Tenant agrees and this Lease is made upon the express condition that
Landlord shall not be liable, responsible, or in any way accountable to Tenant, Tenant's agents, employees,
servants, customers, patients, clients or invitees, or to any person whomever for any loss, theft, or destruction
of or damage (including, but not limited to, any damage caused by rainstorm or other water damage) to any
goods, wares, merchandise, fixtures or other property stored, kept, maintained or displayed in; on or about the
Leased Premises or in, on or about the facilities, the use of which Tenant may have in conjunction with this
Lease, nor for injury to or death or any person or persons who mayat any time be using, occupying or visiting
the Leased Premises or thereabouts regardless of the nature or cause of such injury, damage or destruction.
Tenant agrees to indemnify, defend, hold harmless and protect Landlord, its officials, officers,
employees, agents, volunteers, successors and assigns from any and all costs and expenses, liability and claims
for damages to or loss of property (including Tenant's property) or injury to or death of persons (including
Tenant, its agents, employees, customers, patients, clients, visitors or invitees) directly or indirectly resulting
from anything occurring from any cause on or about the Leased Premises, in connection with the
maintenance or operation of Tenant's business or Tenant's occupation or use of the Leased Premises and
including without limitation Tenant's obligations arid indemnification set forth in Paragraph 5.B above.
Tenant shall discharge any judgment or compromiserendered against or suffered by Landlord as a result of
anything indemnified against hereunder and shall reimburse Landlord as a result of anything indemnified
against hereunder and shall reimburse Landlord for any reasonable costs, fees or expenses incurred or paid by
Landlord (including, without limitation, reasonable attorneys' fees), in connection with the defense of any
action or claim.
Tenant agrees that it will payor cause to be paid all costs for work done by it or cased to be done by it
on the Leased Premises, and Tenant will keep the Leased Premises free and clear of all mechanics' liens and
other liens on account or work done for Tenant or persons claiming under it. Tenant agrees to and shall
indemnify, defend and save Landlord free and harmless against any and all liability, loss, damage, costs, work
performed or materials or supplies furnished to Tenant or persons claiming under it. In addition, Tenant shall
keep Tenant's leasehold interest and any of those improvements to the Leased Premises which are or become
property of Landlord pursuant to this Lease free and clear of all liens of attachment of judgment liens. If
Tenant shall desire to contest ariyclaimof lien, it shall furnish Landlord adequate security of the value or in
the amount of the claim, plus estimated costs, penalties al~d interest, or a lien release bond of a responsible
corporate surety in such amount conditioned on the discharge of the lien, and such contestshall be permitted
16
only for so long as Tenant diligently maintains such contest, if a final judgment establishing the validity or
existence of a lien for any amount is entered, Tenant shall immediately pay and satisfy the same. If Tenant
shall be in default in paying any charge for which a mechanics' lien claim and suit for foreclosure the lien have
been filed and shall not have given Landlord security to protect the Leased Premises and Landlord against
such claim of lien, Landlord may (but shall not be required to) pay the said claim and any costs, and the
amount so paid, together with reasonable attorneys' fees incurred in connection therewith, shall be
immediately due and owing from Tenant to Landlord, and Tenant shall pay the same to Landlord with
interest at the Default Rate from the dates of Landlord's payment. Nothing herein shall be deemed to subject
Landlord's interest in the Leased Premises to any lien or liability under any law relating to liens. Tenant shall
indemnify Landlord from and against all liabilities, damages, losses, costs and expenses including reasonable
attorneys' fees resulting from any lien filled against the Leased Premises claimed to have resulted from
Tenant's actions.
Tenant's obligations and indemnity hereunder shall sl~rvivethe expiration or earlier termination of
this Lease.
18.
SUBORDINATION AND FINANCING. This Lease shall in all respects be junior and
subordinate to any ground lease, mortgage, deed of trust or other matters of record and all of the provisions
contained therein; including but not limited to the Site Lease dated as of March 1, 2006 by and between
Landlord and the Malibu Public Financing Corporation and the Lease/Purchase Agreement dated as of
March 1, 2006 by and between Landlord and the Malibu Public Financing Corporation relating to the
$12,425,000 City of Malibu Certificates of Participation, 2006A (Taxable) (Integrated Water Quality
Management Project - Phase 1) and the $5,155,000 City of Malibu Certificates of Participation, 2006B (TaxExempt) (Integrated Water Quality Management' Project - Phase 1) and the $5,155,000 and any subsequent
refunding or refinancing thereof. Subject to the foregoing, and upon payment by Tenant of all of the rents
herein provided and upon the observation and performance of all the covenants, terms and conditions of
Tenant's part to be observed and performed, Tenant shall quietly hold and enjoy the Leased Premises for the
Term without hindrance or interruption by Landlord or any other person or persons lawfully or equitably
claiming by, through or under Landlord, subject nevertheless to the terms and conditions of this Lease.
Tenant covenants and agrees that upon written request of the Landlord, Tenant will make, execute,
acknowledge and deliver any and all instruments requested by Landlord which are necessary or proper to
effect the subordination of this Lease to any mortgage; -deed of trust, indenture or other encumbrance and
hereby irrevocably appoints Landlord as Tenant's attorney in fact to make, execute, acknowledge and deliver
any such instruments in the name and on behalf of the Tenant if tenant unreasonably fails or refuses to
execute such instrument within 10 days of request thereof. The party to whom this Lease is subordinated, after
acquisition of Landlord's interest, may elect to continue this Lease in full force and effect in the same manner
and with like effect as if such person had been named as Landlord herein, and in the event of such election
this Lease shall continue in full force and effect, as foresaid, and Tenant hereby attorns and agrees to attorn to
such person.
At any time and from time to time, upon request in writing from the other party, Tenant and
Landlord agree to execute, acknowledge and deliver to the other party a statement in writing certifying that
this Lease is unmodified and in full force and effect(or if there have been modifications, that the same is in
full force and effect as modified and stating and modifications)and the dates to which Fixed Minimum Rent,
Additional Rent and all other payments and charges required hereunder have been paid. It is understood and
agreed that any such statement may be relied- upon by any prospective purchaser of the leasehold or the
mortgage, beneficiary or grantee or any security or interest, or any assignee of any thereof, under any mortgage
17
or deed of trust now or hereafter made covering any leasehold interest in the Leased Premises or the real
property covered by this Lease.
Upon Tenant's written request made during the term of this lease accompanied by Tenant's check
covering the estimated costs required by Landlord's mortgage, Landlord shall make best efforts to secure and
deliver to the Tenant a non-disturbance agreement executed by Landlord's mortgagee for the benefit of
Tenant with respect to any mortgages entered into by Landlord. A final accounting of the costs for securing
such agreement shall be given to Tenant when completed and Tenant shall payor be refunded any difference.
Tenant agrees to furnish with ten days after Landlord's request, but not more than once in any sixmonth period, such financial statements, balance sheets or operating statements as may. be required by any
lender or lenders in connection with any refinancing or sale of the building in which the leased Premises are
located. Landlord is authorized to use such financial statements only for such purposes and agrees to maintain
the confidentiality of such financial statements by not disclosing them to anyone other than such Lenders.
Any financial statements submitted to Landlord by Tenant prior to or after execution of this Lease are
warranted by Tenant to be true and correct.
If during the term, Landlord sells its interest in the Leased Premises, or this Lease, then all rights and
obligations of Tenant hereunder shall remain in full force and effect as though there had been no such sale or
transfer, except that Tenant shall thereafter attorn to the purchaser of Landlord's interest. Upon such transfer
and conveyance Landlord shall be unconditionally absolved and released of all obligations of Landlord
accruing hereunder from the date of such sale of transfer.
Tenant shall have the right to prepare and record a short form of this Lease, provided Tenant pays all
the costs and expenses of such preparation and recording including Landlord's attorney fees for reviewing and
approving said document prior to Landlord's execution. If Landlord so requests, Tenanr agrees to execute and
deliver a short form of this Lease for recordation by Landlord.
19.
ATTORNEY'S FEES. In case suit shall be brought for any breach of this Lease, including
without limitation, unlawful detainer of the Leased Premises,or for the recovery of any Rent or other amounts
due under the provisions of this Lease, or because or the breach of any covenant herein contained on the part
of Tenant to be kept or performed; the prevailing party shall be entitled to reasonable attorneys' fees, which
shall be fixed by the court or in any compromise or settlement, such attorneys' fees shall be deemed to have
accrued on the commencement of such action and shall be paid whether or not such action is prosecuted to
judgment. The provisions contained in this ParagraphIv shall survive the expiration or earlier termination of
this Lease, and, in the event any action or proceeding is instituted to recover possession of the Premises
following the expiration or earlier termination Of this Lease, the provisions contained in this Paragraph 19
shall apply.
20.
NOTICES. Whenever under this Lease a provrsion is made for any demand, notice or
declaration of any kind or where it as deemed desirable or necessary by either party to give or serve any such
notice, demand or declaration to the other, it shall be in writing delivered personally or by certified mail with
postage prepaid, return receipt requested, or by overnight courier or delivery service, addressed to Tenant at
the Leased Premises, or to Landlord or Tenant at the address appearing opposite their signatures at the end of
this lease or by facsimile to the fax numbers appearing opposite Landlord's and Tenant's signatures at the end
of this lease;' Either party may, by like notice, at any time and from time to time designate a different address
to which or a different person to whom or in care of whom notices shall be sent. Notices delivered by mail
shall be deemed delivered 48 hours after deposit thereof in:a U.S. Mail Post Box located in California, postage
18
prepaid, return receipt requested, and addressed as required herein, and 24 hours if sent by overnight courier
or delivery service. Tenant shall furnish Landlord which an emergency telephone number where Tenant or
Tenant's management personnel may be reached after business hours.
21.
LANDLORD'S IMPROVEMENTS. If at any time during the original and any extended
term of this Lease, the existing HVAC system becomes non-functioning and inoperable and it cannot be
repaired as a commercially reasonable cost and" has to be replaced, Landlord shall replace the HVAC
equipment. If the air conditioning system is repairable at a commercially reasonable cost, it shall be repaired
by Tenant as provided, in Paragraph 7 of this lease. However, inefficiency of operation of this existing air
conditioning system is not grounds for the replacement of the system by Landlord under his provision. The
installation cost of the new HVAC equipment shall be amortized over fifteen years and Tenant shall
reimburse Landlord periodically as billed for the portion of the amortized cost applicable to the lease period
over which Tenant will receive the benefit of the new equipment.
During the term of this lease including any extensions, Landlord shall solely be responsible for the
cost of installation of fire sprinklers if required by law. Such installation shall be performed only after regular
business hours or on weekends.
In the event any asbestos or hazardous wastes are found on the Premises which have not been caused
by Tenant, Landlord represents that it will be encapsulated, removed or otherwise abated in accordance with
the law at Landlord's sole cost and expense.
22.
CONSTRUCTION
OF
TENANT'S
IMPROVEMENTS.
NO
LANDLORD'S
ALLOWANCE.
Landlord will not contribute any funds towards the planning, design, permitting,
engin,eering, or construction of Tenant Improvements ro be installed by Tenant in accordance with the final
plans and specifications approved by Landlord and Tenant ("Tenant Improvements"). Tenant shall be
responsible for all costs associated the TenantfInprovements.
Tenant will have prepared by a licensed architect or space planner plans and specifications for the
Tenant Improvements andshall'deliver
a full set of plans to Landlord. Landlord shall have the right to
reasonably approve, disapprove or' require modification of said plans and specifications, which changes shall
be made by Tenant and revised submitted promptly to Landlord for approval. It is understood by Tenant that
the discretion afforded Landlord under this paragraph to approve, disapprove or require modification of said
plans and specifications is broader than the discretion that may be exercised by Landlord in its capacity as the
regulatory agency responsible for evaluating development permit and building permit 'applications and is
circumscribed only by the rule of reason. The foregoing procedures shall be followed until an approved set of
plans and specifications has been prepared. Within thirty days after completion of said Construction of the
Leased Premises, Tenant shall deliver to Landlord a set of "as built" drawings.
Tenant shall, at its sole' cost and expense, employ a licensed, reputable contractor (subject to
Landlord's prior written reasonable approval) to diligently and continuously complete any and all items of
work. Any alterations and/or additions and reinforcements to Landlord's structure required to accommodate
Tenant's Work shall be Tenant's responsibility but shall be performed by Landlord's contractor at Tenant's
sole cost and expense and shall be subject to Landlord's prior written approval.
In conjunction with Tenant's improvements, and prior to the date that Tenant opens for business,
Tenant shall, at its,own expense, complete the interior partitioning, exterior building maintenance, and site
landscaping improvements as shown and described in Exhibit B.
19
All work to be performed by Tenant shall be done in accordance with plans and specifications to be
approved by Landlord and in accordance with all applicable building codes and regulations governing said
construction. Landlord shall have the right to inspect Tenant's work to insure compliance with the approved
plans and specifications from time to time as the work progresses. All such improvements shall at once
become the property of Landlord at option of Landlord.
Any changes in the work or the plans and specifications shall be subject to Landlord's reasonable
approval. Any changes including any changes requested by Tenant or required by any governmental authority,
. including Landlord, shall be at Tenant's sole cost and expense. Tenant acknowledges that incorporation of
any materials containing asbestos or other toxic or hazardous substances into the Leased Premises, or any
portion of Tenant's Work, is absolutely prohibited. Tenant agrees and represents and warrants that it shall
not incorporate or permit or suffer to be incorporated, knowingly or unknowingly, any material containing
asbestos or other toxic or hazardous substances into the Leased Premises or Tenant's Work. All signage shall
conform to the City of Malibu Municipal Code and the City of Malibu Local Coastal Program.
Tenant shall perform or cause Tenant's contractor to perform all work in the making and/or
Installation of any repairs, alterations or improvements in' a manner so as to avoid any labor dispute which
causes or is likely to cause stoppage or impairment of work or delivery services or and other services. In the
event there shall be any such stoppage or impairment as the result of any such labor dispute or potential labor
dispute, Tenant shall immediately undertake such action as may be necessary to eliminate such dispute or
potential dispute.
Tenant, at its sole cost and expense, shall be responsible for the removal of all of Tenant's trash and
debris during the construction of the Leased Premises and for connections to temporary power, including all
temporary power lines, transformers and electrical distribution.
Prior to permitting Tenant's contractorts) to commence work on the Leased Premises, Tenant shall
provide Landlord with written notice of the date Tenant anticipates the commencement of construction and
shall obtain from Landlord a completed "Notice of Nonresponslbility," which notice Tenant shall then post
on the exterior storefront of the Leased Premises prior to the commencement of actual construction. The
NOtice of Nonresponsibility shall advise all 'persons performing labor or supplying material for Tenant's
improvements thai: they have no rights to place Iiens upon Landlord's property.
23.
TREATMENT AND DISPERSAL OF WASTEWATER GENERATED ON LEASED
PREMISES.
A.
The Leased Premises currently contains certain septic/holding tanks,pipelines, lift/pump
station and other related improvements for the collection of the domestic and kitchen wastewater generated
on the premises and the pumping thereof directly to a treatment and dispersal facility (the "Treatment
Facility") located in Winter Canyon on Civic Center Wayin Malibu (the "Facility Property"). The Treatment
Facility also provides treatment and dispersal for wastewater generated by the MBC Colony Plaza, commonly
known as the "Malibu Colony Shopping Center" located at 23705-23841 Malibu Road as well as the shopping
center property located at 23648-23670 Pacific. Coast Highway. The Treatment Facility is designed for a
Maximum Daily Flow of up to 45,000 gallons per day.
B.
Definitions.
20
"Average Daily Flow" means the average total flow in gallons per day of effluent generated on
the Leased Premises for transport to the Facility Property measured over such time period as used by the
RWQCB to determine compliance with the average daily flow limitations imposed by the RWQCB.
transport
"Effluent" means wastewater from any source that is discharged from the Leased Premises for
to the Facility Property.
, "Maximum Daily Flow" means the total flow in gallons during any 24 hour period of effluent
generated on the Leased Premises for transport to the Facility Property.
C.
Landlord is party to a Wastewater Services and Easement Agreement ("Wastewater
Agreement") with MBC Colony Plaza, LLC governing use of the Treatment Facility. The Wastewater
Agreement is attached hereto as Exhibit "c." Any act or failure to act on the part of Tenant or any of its
subtenants or assignees that results in a violation, however temporary, of any duty or obligation applicable to
the Coldwell Banker Property in said Wastewater Agreement shall be considered a material breach of this
Lease. In the .event of such breach, Landlord may exercise any of the options provided for in Paragraph 14.F.
effluent
of 1,316
measure
working
repair.
D.
Limitations on Volume of Effluent Generated on the Leased Premises. The volume of
generated on the Leased Premises from all sources combined shall not exceed an Average Daily Flow
gallons or a Maximum Daily Flow of 1,692 gallons. The Leased Premises is equipped with a meter to
the amount of effluent generated on the Leased Premises. The meter must be maintained in good
order at all times and Tenant agrees to notify Landlord immediately if the meter fails or is in need of
E.
Restrictions on Content of Effluent. Tenant
responsible for all associated costs) necessary to ensure that:
is responsible
for taking all actions (and is
(i)
the effluent generated on the Leased. Premises is from resrroorns, wash basins and
those uses commonly associated with the usets) allowed on the premises only;
(ii)
the effluent generated, on the Leased Premises complies with all chemical,
bacteriological, toxicity, temperature, and other content requirements under applicable laws regulating the
effluent that may be generated on the Leased Premises for transport to the Facility Property including, without
limitation, the current applicable Waste Discharge Requirements,
(iii)
there shall be no material change to the chemical, bacteriological,
toxicity,
temperature or other content, pressure or consistency of the effluent transported to the Facility Property that'
has a material adverse effect upon, and/or increases the cost of, the operation, maintenance or repair of the
Facility or the disposal by the Facility owner of the effluent, sludge, sewage or other solid wastes generated
there from, or that necessitates an alternative to, or upgrade of, the Facility;
(iv)
any kitchen effluent containing oil or grease shall first enter a grease interceptor and
receive pretreatment consisting of oil/water separation and filtration prior to entering any pipeline to a septic
tank or other transport, and
(v)
the Leased Premised maintains strict compliance with all reasonable rules and
regulations as may be adopted by the Facility owner from time to time to maximize the functioning and
performance of the Facility or of any wastewater facilities located on the Leased Premises, including without
21
limitation, provisions pertaining to proper management and 'use standards as to the substances discharged
from the Leased Premises, and periodic inspection and maintenance standards for toilets, fixture units and
other facilities.
F.
Noncompliant Effluent. If effluent from the Leased Premises does not comply with any of
the limitations, standards or requirements regarding such effluent set forth in this Paragraph, Tenant may be
required to immediately suspend, cease or terminate any and all operations or activities that result in the
generation of wastewater on the Leased Premises and its transport to the Facility Property. Landlord shall not
be liable for any loss or damage to Tenant (whether direct, indirect, or consequential) incurred as a result of
the exercise by Landlord or the Facility owner of the right to curtail or restrict the flow of influent to the
Facility that does not comply with the Wastewater Agreement.
Tenant further acknowledges that
noncompliant effluent may, in addition to any other rights or remedies of Landlord hereunder, result in
increased costs to the Facility owner for the acceptance, treatment, processing, storage, pumping, dispersal,
discharge or other handling of the noncompliant effluent including, without limitation, any damage to, or
additional wear and tear on, the Facility incurred in connection with such noncompliant effluent, plus an
administrative charge of ten percent of such additional costs and expenses. Tenant shall be solely responsible
for all such additional costs and expenses which shall be passed along to Tenant as Additional Rent.
G.
Landlord, or its designated agents, shall have the right of entry and access to the Leased
Premises at any' time for the purpose of inspecting, testing, or monitoring the premises and any equipment,
fixtures, or appurtenances thereon to ensure compliance with this Paragraph.
H.
Compliance with Waste Discharge Requirements. Tenant acknowledges that the Facility
owner is obligated to comply with Waste Discharge Requirements imposed by the Regional Water Quality
Control Board (RWQCB) and that compliance with RWQCB standards may require, from time to time,
costly upgrades, modifications, improvements or repairs to the Facility. Tenant shall be responsible for the
proportionate cost of any and all such upgrades, modifications, improvements or repairs whether mandated by
a regulatory agency or not, attributable to the Leased Premises per the Wastewater Agreement. These
additional costs shall be passed through to Tenant as Additional Rent. If the proportionate share of the cost
of any upgrades or improvements exceeds $5,000, the cost shill be amortized over fifteen years and Tenant
shall reimburse Landlord periodically as billed for the portion of the amortized cost applicable to the lease
period over which tenant will receive the benefit of the upgraded Facility. In no event shall the dollar
amount of Tenant's monthly responsibility under this subparagraph exceed 15% of the monthly Fixed
Minimum Rent.
L
Landlord shall be responsible for the physical connection to any City-owned centralized
wastewater system. Tenant shall be responsible for all ongoing charges or assessments associated with a Cityowned centralized wastewater system used in-lieu of the existing centralized wastewater system referenced in
Section 23.
J.
If the ability of the Facility to treat or dispose of wastewater generated on the Leased Premises
is inhibited by an action of any regulatory agency or by any action beyond the control of Landlord (including,
but not limited to, acts of God), Tenant may be required to suspend, cease or terminate all operations that
result in the generation of wastewater on the Leased Premises. Should it become necessary for Tenant to
suspend, cease or terminate its operations pursuantto this subparagraph, Landlord shall not be liable to
Tenant for any loss or damage (whether direct, indirect, or consequential) incurred as a result of the required
suspension, cessation or termination of operations.
22
K.
On November 5, 2009, the RWQCB adopted Resolution No. R4-2009-Cl07("Amendment to
the Water Quality Control Plan for the Coastal Watersheds of Ventura and Los Angeles Counties to Prohibit
On-Site Wastewater Disposal Systems in the Malibu Civic Center Area.") The Amendment 'NiH require the
Treatment Facility to cease operation by November 5, 2015. Tenant understands and acknowledges that the
Amendment will require Tenant to cease operations no later than November 5, 2015 unless there is a
replacement wastewater treatment and disposal facility constructed, operating and serving the Lease Premises
by such time, and that Landlord shall not be liable to Tenant for any loss or damage (whether direct, indirect,
or consequential) incurred as a result of the required suspension, cessation or .rerminarion of operations.
Tenant further understands and acknowledges that Landlord has no obligation to secure or arrange for a
replacement wastewater treatment and disposal system to serve the Leased Premises.
24.
SECURITI DEPOSIT. Tenant, contemporaneously with the execution of this Lease, will
deposit with Landlord the sum of Twelve Thousand dollars ($12,000.00).
Said deposits shall be held by
Landlord, without interest, and deposited with other funds of Landlord, as security for the faithful
performance by Tenant of all of the terms, covenants and conditions of this Lease to be kept and performed
by Tenant during the Term hereof.
In the event of the failure of Ten ant to keep and perform any of the terms, covenants and conditions
of this Lease to be kept and performed by Tenant, then Landlord, at its option, may, with or without
terminating this Lease, appropriate and apply said entire deposit, or so much thereof as may be necessary to
compensate Landlord for all loss or damage sustained or suffered by Landlord due to such breach on the part
of the Tenant. Should the entire deposit, or any portion thereof, be appropriated and applied by Landlord for
the payment of overdue rent or other sums due and payable to Landlord by Tenant hereunder, then Tenant
shall, upon the written demand of Landlord, forthwith remit to Landlord in cash an amount sufficient to
restore said security to the original sum deposited, and Tenant's failure to do so within ten days after receipt of
such demand shall constitute a breach of this Lease. Should Tenant comply with all of said terms, covenants
and conditions and promptly pay all the Rent herein provided for as it falls due, and all other sums payable by
Tenant hereunder, the deposit or so "much thereof as may remain shall be returned in full to Tenant at the
expiration of the Term of this Lease, or upon the earlier termination of this Lease. Landlord may deliver the
security deposit to the purchaser of Landlord's interest in the Leased Premises and Landlord shall then be
discharged from any further liability with respect to the security deposit. This provision shall also apply to any
subsequent transfers of Landlord's interest in the Leased Premises.
25.
OPTION TO EXTEND." Tenant shall have the option to extend the term of this Lease
subject to all the terms; covenants and conditions hereof (except for the amount of Fixed Minimum Rent as
set forth herein) for one additional ten year period. This option to extend shall be exercised by giving written
notice to Landlord at least twelve months before the termination of the original term.
The monthly Fixed Minimum Rent for the first year of the extended term shall be equal to the
monthly fixed minimum rent payable for the last month of the initial lease term as increased by three percent.
The monthly Fixed Minimum Rent shall be increased by three percent in each succeeding year of the
extended term,
"
In no event shall the annual Fixed Minimum Rent for the extended term be less that the Fixed
Minimum Rent charged for the Premises during the twelve months immediately preceding the extended term.
Additional Rent shall also be payable under this Lease during the extended term.
23
The term of this lease shall be extended then as provided in this Paragraph without the necessity for
any further documentation to be executed by the parties hereto. Notwithstanding, the Parties hereto shall
immediately enter into an Addendum confirming the extension of this Lease at the new Fixed Minimum
Rent.
Tenant may exercise this Option to Extend only if at the time of the exercise of the option and at the
commencement of the extended term, Tenant is not in default under the terms, covenants and conditions of
this Lease and the Lease is in full force and effect. The word "term" as used in this lease shall include any
extension of the term when appropriate to the COntext.
.
Time is of the essence of this Option to Extend. This Option to Extend is personal to Tenant and
may not be transferred or assigned to any other person.
26.
LEGACY PARK-PROJECT DISCLOSURE/WAlVER. Tenant acknowledges that it has
had the opportunity to review detailed construction and other plans for the Legacy Park Project, including the
Environmental Impact Report, and understands the scope, breadth and nature of work contemplated thereby
on Landlord's adjacent and surrounding property. Tenant hereby waives any claim that the construction or
operation of the Legacy Park Project interferes with any right or expectation of Tenant under this Lease,
including the right of quiet enjoyment of the Leased Premises. Tenant further agrees that Landlord shall not
be liable for any loss or damage to Tenant (whether direct, indirect, or consequential) incurred as a result of
the development, construction at operation of Legacy Park.
27.
FORCE MAJEURE. In the event that either parry hereto shall be delayed or hindered in or
prevented from the performance of any act required hereunder by reason of strikes, lockouts, inability to
procure labor or materials, failure of power, riots, insurrection, war, fire or other casualty or other reason: of a
similar or dissimilar nature beyond the reasonable control of the party delayed in performing work or doing
acts required under the terms ofthis Lease, then performance of such act shall be excused for the period of
-the delay, and the period for the performance of any such act shall be exten-ded for the period of the delay.
After the date of execution, the provisions of this Paragraph shall not operate to excuse Tenant from prompt
payment of Rent or and other payments required by the terms of this Lease and shall not extend the Term.
Delays or failures to perform resulting from lack offunds shall not be deemed delays beyond the reasonable
control of a party. Notwithstandinganyrhing
to the contrary contained herein, in the event any work
performed by Tenant or Tenant's contractor results ill a strike, lockout and/or labor dispute, such strike,
lockout and/or labor dispute shall not excuse the performance by Tenant as provided herein.
28.
MISCELLANEOUS. The unenforceability or invalidity of anyone or more provisions hereof
shall not render any other provisions herein contained unenforceable or invalid.
As used in this Lease and whenever required by the context thereof, each number, both singular or
plural, shall include all numbers, and each gender shall include all genders. Landlord and Tenant as used in
this Lease or in any other instrument referred to in or made a part of this Lease shall likewise include both the
singular and plural a corporation, co-partnership, individual or person acting in any fiduciary capacity as
executor, administrator, trustee, or in any other representative capacity. All covenants herein contained on
the part of Tenant shall be joint and several. All references herein contained to statutes shall be deemed to
such statutes as they may be amended from time to time and to any successor statutes thereto.
All of the terms hereof shall apply to, run in a favor of and shall be binding upon and inure to the
benefit of, as the case may require, the parties hereto, and their respective heirs, executors, administrators,
24
personal representatives and assigns and successors-m-mteresr, subject at all times nevertheless to the
provisions of Paragraph 13 of this Lease relating to restrictions upon the Transfer of this Lease or the Leased
Premises.
One or more waivers of any covenant, term or condition of this Lease by either party shall not be
construed by the other party as a waiver of a subsequent breach of the same or any other covenant, term or
condition. The consent, approval or waiver of either party to or of any act by the other party must be in
writing to be effective, and shall not be deemed to waive or render unnecessary consent to or approval of any
subsequent act.
Nothing contained in this Lease shall be deemed or construed by the parties hereto or by any third
party to create the relationship of principal and agent or of partnership or of joint venture or of any
association whatsoever between Landlord and Tenant, it being expressly understood and agreed that neither
the method of computation of Rent nor any other provisions contained in this Lease nor any acts of the
parties hereto shall be deemed to create any relationship between Landlord and Tenant other than the
relationship of landlord and tenant.
The laws of the State of California shall govern the validity, construction, performance and
enforcement of this Lease. The exclusive venue for all disputes relating to this agreement shall be the Superior
Court for the County of Los Angeles.
Each of the parties represents and warrants that it has not engaged any broker" broker's agent, broker's
salesperson, or finder and that no claims for brokerage commissions, or finder's fees will arise in connection
with the execution of this Lease, and each of the parties agrees to indemnify the other against, hold it harmless
from, all liabilities arising from any such claim (includirig, without limitation the cost of attorneys' fees in
connection therewith).
The submission of this Lease for examination does not constitute a reservation of or option for the
Leased Premises and this Lease becomes effective as a Lease only upon execution thereof by Landlord and
Tenant.
This Lease Agreement constitutes the whole and entire agreement between the parties with respect to
the lease of the premises demised herein. This Lease may onlybe amended or modified in writing signed by
both parties, It is understood that there are no oral agreements between the parties affecting this Lease, and
this Lease supersedes and cancels any and aU:previous negotiations, arrangements, brochures, requests' for
proposals, agreements, representations and understandings; if any, between the parties hereto or displayed by
Landlord to Tenant with respect to the subject matter thereof, and none thereof shall be used to modify,
interpret or construe this Lease.
If a corporation executes this Lease .as Tenant, Tenant shall promptly furnish Landlord certified
corporate resolutions attesting to the authority of the officers to execute the Lease on behalf of such
corporation. hi the even Tenant (or a general partner of Tenant) is a corporation, the persons executing this
Lease on behalf of Tenant (or such general partner) hereby covenant and represent and warrant that: Tenant
(or such general partner) is a duly constituted corporation ingoodsranding and qualified to do business in: the
State of California and all Tenant's (or such general partner's) franchise and corporate taxes have been paid to
date;, all future forms, reports, fees and other documents necessary for Tenant (or such general partner) to
comply with applicable laws will be filed by Tenant (or such general partner) when due; and such persons are
25
duly authorized by the governing body of such corporation to execute and deliver this Lease on behalf of the
partnership.
The Paragraph titles herein are for convenience only and do not define, limit or construe the contents
of such Paragraph.
.
Whenever consent shall be required by either Landlord or Tenant, it shall be understood that neither
party shall unreasonably withhold or delay the giving of such consent.
29.
SECURITY OF PHARMACEUTICALS/ENTRY
ON PREMISES.
Tenant's
Improvements shall be designed and constructed in such a manner as to ensure that all areas wherein
controlled substances or dangerous drugs or dangerous devices are stored, possessed, prepared, manufactured,
derived, compounded, dispensed, or repackaged are segregated and secured in such a marmet as to ensure that
unauthorized individuals may not gain access to the area. Notwithstanding any other provision of this Lease,
neither Landlord nor any agent of Landlord may enter or remain on any area wherein controlled substances or
dangerous drugs or dangerous devices are stored, possessed, prepared, manufactured, derived, compounded,
dispensed, or repackaged unless a registered pharmacist is at all time present. Possession of a key to the
secured area where dangerous drugs and controlled substances are stored shall be restricted to a pharmacist.
Nothing contained herein shall be construed as an impediment preventing Landlord from taking such action
as may be reasonable and necessary to protect Landlord and Landlord's rights under this Lease.
THIS LEASE AGREEMENT WILL NOT BECOME EFFECTIVE OR A BINDING AGREEMENT
BETWEEN THE PARTIES UNTIL IT HAS BEEN COUNTERSIGNED BY LANDLORD AND A
COPY EXECUTED BY ALL THE PARTIES HERETO HAS BEEN RETURNED TO TENANT.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and year first
above written.
LANDLORD'S ADDRESS:
City of Malibu
Attn: City Manager
23815 Stuart Ranch Road
Malibu, CA 90265
Fax No. (310) 456-3356
TENANT'S ADDRESS:
Super Care Drugs, Inc.
Attn: Thomas Park
TENANT:
26
Super Care Drugs, Inc., a Calt'fornia Cor
By:
-
,L/l
ThomasS. Park
Its President and Secretary
LANDLORD:
THE CITY OF MALIBU,
a municipal corporation
By:
Its:
ATTEST:
~'-B~_
CHRISTI HOG IN ..
City Attorney
~
27
SUPERCARE LEASE
EXHIBIT A
INTERIOR PLANS (TO BE PROVIDED SEPARATELy)
SUPERCARE LEASE
EXHIBITB
/
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SUPERCARE LEASE
EXHIBITC
This page is part of your docwnent
- DO NOT DISCARD
05 1571219
RECORDED/FILED IN OFFICIAL RECORDS
RECORDER'S OFFICE
LOS ANGELES COUNTY
CALIFORNIA
07/05/05 Ar 08:00arn
- •......
'.1.,· .. ·:·
TITLE(S) :
.• At·:
.. ,.... :1:;
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.
1111111111111:
l
FEE
EA
O'
SHE
E T
'FES$
OAF$'
0.1.1:
CODE
2.0
CODe
19
. CODE
9-.,-..
.
.
. Assessor's
Identification NU01ber CAIN)
To be completed by Examiner OR Title Company in black ink.
••••-'.
".~
.
tHIS FORM IS NOT TO BE DUPLICATED
Number otA-IN's Shown
STE\i\H\RT TITLE
05 1571219
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
rW~[)OcJg~2o~~ed
Malibu Bay Company
23705 West Malibu Road
SuiteD-2
Malibu, CA 90265-4658
Attention: David Reznick
~as nOTbeen cnmnared with or15!l1al.
(Jr'~':inz!iwiH be returned when
pr .,,:~:~s:nghas been completed.
;.•..~~~
lO':\ilj{GEL£S COUNTy... ~:£GISTHP,R·
RECORDER/COIJi,
,J:.:W ~
..
,..
--_
WASTEWATER
SERVICES
ANU EASEMENT
-
-'._
--'~
AGREEMENT
This WASTEWATER SERVICES AND EASEMENT AGREEMENT (this
"Agreement") is entered into as of June ~g', 2004 ("Effective Date") by and between MALmU
BAY COMPANY, a Nevada corporation ("MBC") and MBC COLONY PLAZA, LLC, a
Delaware limited liability company ("MBC ColoJJ.YPlaza"),
RECITALS
A.
MBC Colony Plaza is the fee owner of that certain real property described
..on.Exhibit A attached hereto and incorporated hereiaby tbis reference, commonlyknown as the
"Malibu Colony Plaza SlJ,opping Center" and located at 23705-23841 MalibuRoad, Malibu.
California, together with allimprovements
located thereon (collectively, the "ShoppingCenter
Property"), the Shopping Center Property currently consists of a mixture of retail and
. commercial business\{s,jncluding
a supermarketdrugstore,
bank" restaurants.medical
office, .
drycleaner and post office.
B.MBC
is the fee owner of thai certain real property described on Exhibit B
attached hereto and incorporated hereiq,by' this reference, located at23648~23670 PacificCoast'
Highway, Malibu, California, together with aU improvements located thereon (coll~tively,the
.
"East Shopping Center Property''). The East Shopping Cenier Property currently includes anUrgent care center; a gasoline/service.center
and a distribution postahservice center,
,
C.
MBC is the owner of that certain real property described on Exhibit C
•attached hereto and incorporated herein by1:bisrefe~nce,located
at 23661 Pacific Coast
Highway, Ma;li~u, Califbmia, together with all improvements located thereon (collectively, the
"Coldwell Banker Property"). The Coldwell Banker Property currently ip.cluQ:eSan office
building.
...
-.
D~
MBC Colony Plaza is the fee owner of that certain real property described
on ExhibitD attached hereto andincorporated
herein by this reference located in WmterCaliyon
on Civic Center Way, Malibu, California, together with all improvements located thereon (the
.''FacilityPropel1y'').·
E.
1012017.8,
.
.
.MBC and MBC Colony are parties to that certain Septic Services
1
Agreement, dated as of January 13, 2000, and recorded on January 24, 2000, as instrument no.
00·0102268 of the official records ofthe County of Los Angeles, CaIifomia (the "Septic
Services Agreement"), which permits the Shopping Center Property to utilize certain piping,
.pretreatment devises, grease interceptors, septic tanks, effluent filters and certain other
components located on and under the ShOpping Center Property and the Facility Property.
F.
The Shopping Center Property CUITentlycontains certain septiclholding
tank, grease interceptor, pipeline, lift station and other related improvements for the collection
andpumping to the Facility Property of the domestic and kitchen Wastewater generated on the
Shopping Center Property.
G.
The East Shopping Center Property currently contains certain
septiclholding 1:ank, pipeline and other related improvements for the collection 'of the domestic
and kitchen wastewater ;generatedon such property and the gravity transponthereof to the
pipelin:e~d lift station facilities onthe Shopping Center Property for further PU:IDpingto the
Facility Property with the wastewater from the Shopping Center Property.
H.
The Coldwell Banker Pr<>petty currently contains certain septiclholding
tank, pipeline,liftlpliIilp station and other related improvements for the collection of the
domestic and kitchen wastewater generated on SUchproperty and the pumPing thereof directly to
.the Facility Property.
.
I~
The Facility Property currently contains .certain pipeime, septic/h01!ling
improvements: for theacceptance~ treatment
~ddisposal
of the wastewa~r receiVed-from.the Shoppillg Center ProPertY; East SboPl'ing
Center Property andCoIdweU Banker Property (qoll~tively; the "~UserP,rop'er~es'1~ The
influent flow reeeivedby the F~cility Property from the User Properties is currently pUIllpedto
additional septic!holdingltrea1ment tanks 'on the Facility Property. From there the Wastewater
flows to adistributioil box On the ,Facility Property for disehalge into forty-nine (49) eXiSting
seepage·pits.()n tbeFacilityProperty;
·Wastt1. slmge 1$~uloo offSite.hy Facility Owner to a leg!l1
disposal site. AE. of the date of this. Agree.menttheFaCilitY ProPertycuirently @ceptB an
Average D~y Flow ofinflucnt from the User PropeJ1ies of approximately 35~OOOg~ops per
day,
day; The. Facility. is designed for a MaXDmlJl1 Daily Flow ofirifluent oflW to 4S~OOOgallons
. . pet
tank, distribution box, seepage pjfand'otherr:elate4
.
to
J;
The Parties desire to enter into this Agreement
dOCllIg:entthe-1:eJ::ms
and
conditions for the pontinued. generation and·tiansport totli~facility PrOperty of wastewater tQm
the User Properties, and the continued acceptance ••treatinentand diSposa,1of such wastewater by
.Facility Owner.
. .
.
AGREEMENT
NOW, 1HEREFORE,forgood
sufficieiicyofwhich
are be,reby aCknowl~ed,
andva1uableconsidtmlti~
the receipt aad
the parties agree as follows:
1.
. nefiilitjons~Forpurposes
ofthisAgreemerit,
Shallhave the@eanU1gs set fbrtbbelow:
1012017.8
the following capitali?ed. terms
"AAA" has the meaning given such term in Section 15.1 of this Agreement.
"Agreement"
Agreement.
"Amended
Agreement.
has the meaning given to such term in the preamble to this
TSO" has the meaning given to such term in Section 3.1 of this
"Applicable Laws" means all federal, state or local governmental statutes, rules,
regulations, codes, ordinances, orders and other laws applicable to the Property or any
portion thereof, including without limitation, all orders 'and/or wastewater discharge
requirements issued by the RWQCB or other governmental agency with appropriate
jurisdiction.
"
"Average Daily Flow" meanstheaverage'total
flow ingalhms, per day of influent
generated by a User Property for transport to the Facility Property (whether directlyor
indirectly by way oftheShopping-Center
Property) measured over Sllch timeperiod as
USedby the RWQ~ to determine compliance-with average daily flow limitations
imposed by the RWQCB.
"Capital ]J}xpense" bas the meaning given to such term in Section 9.1.1 of this
Agreement.
"Capital E:x:penseAInortization
in Section 9.1.5 of this Agreement.
"Claim,s"hasthe
m~,
Amounts"
given to
has the meaning given to such term
'
such term. in Article
"Coldwell Banker Property" has, them~g
this.Agreement.
6 of this Agreement.
given to such term in RecitalD of
"ColdweU lWIker T~port
Pipelbie" means aU'pipelbIes, mains, connection,
v~ves"ineters orotJierflow measurement devices, and other related equipment, faciliti~.
SYstenIs orimprovenientsnow
or ~ereattertocated alQng'1:hepipeline between the
'Coldwell BaDkerPrqpertY,al1d the Facility Property tbatate used iaconneenon with the
pipeliile transport ofintlu~nt: fi'omth~ COldwell B;:uil(ef;Pt~
to the Facility Property,
anqall easements ;md othQI'tights pertaining; to .the use of such implovements~
''DefaUlt" has ~'meaning
given to ~ch term 'iil Section 10.1 ,of this Agreement
''Der~ult Rate" means the Interest Rate plus tbtee percent (3%), but in no event
greater than the highest rateperini~dby
law.
'
,
'·East ShoppingCentel"
Property" has the meaning ,given te such
B of this Agreement
wnn in Recital
.r:
"etlluenf' means wastewater disposed of from the Facility after any treatment or
processing thereof at thePacility.
IOl~017.B
3
"Emergency Self-Help Notice" has the meaning given to such term in Section
10.4 of this Agreement.
"Estimated
this Agreement.
Facility
Costs" has the meaning given to such term in Section 9.2 of
''Expense Year" has the meaning given to such term in Section 9,1.2 of'this
Agreement.
''Facility'' means all (i) pipelines, mains, connections, valves, meters .or other
flow measurement devices, septic, holding or other tanks, PllIDPS, distribution boxes,
seepage pits and other related-equipment, facilities, systems or improvements now or
hereafter located on the Facility Property from time to time, and used in connection With
. the wastewater services to. be provided by Facility Owner pursuant to this Agreement, (ii)
the Shopping Center Transport Pipeline, and (iii) the Coldwell Banker Transport
Pipeline.
"Faeility Costs" has the meaning given to Stich term in Section 9.1.3 of this
Agreement.
''Facility Owner"
means the fee owner from time to time of the Facility Property.
''Facility Property"
Agreement.
has the meaning given to such-term in RecitalE of this
''Facility Upgrade"
Agreement.
..
has, the meaniaggiven
"FacilityUpgrad~
AmQrtizittioil Amounts"
in Section 3.2 of this Agreement.
"Facility Upgra:4e Costs" hasthemeaning
this Agleem~~
"Facility 'Upgrade Cost Amor~agonPeriodr'
term in Section 3.2 of thiS Agreement.
to such term in Section 3.2 of this
.
has the meaning ·given to such term
given to 8llch;tetpl in Section 3.2 of
has the meaning' given
'
...
to such
"Governmental ~uthoriti.t:S" means all federal, state, rmmicipalor other local
governmental or quasi-govemmental authorities or agencieswithjudsdiction
over the
Property.
"Gross·Leaseabl~
"inbnenf'
Area" has the meaning given to suchterm in Section 9.1.4.
means wastewater received,
"Interest Rate"
means
by the Facility from the UserPreperties,
the prime or reference rate announced from time to time
by Bank of America N. T. & SA" or its successor, plus two percent (2%).
1012017.8
4,
"Maximum Daily Flow" means the total flow in gallons during any 24 hour
period of influent generated by a User Property for transport to the Facility Property
(whether directly or indirectly by. way ofthe Shopping Center Property)
"Mortgage"
means a deed of trust or mortgage recorded against the Property or
any portion thereof.
.
"Mortgagee"
means a beneficiary under, ora holder of, aMortgage.
"New Waste Discharge
Requirements"
has the meaning given to such term in
Section 3.1 of this Agreement.
"Operating
Expenses"
this Agreement.
has the meaning given to such term in Section 9.1.5 of
.
meaning given to such term in Section 3.1 of this
"Original TSO~'.hasthe
Agreement
"Owner User" and "Owiler Users" individually and collectively mean each of
the fee owners from time to time of the S40pping CeJ1ter Property, East Shopping Center
Property and Coldwell Banker Property.
"Party"
and "Parnes"
.
.
mean and refer to each or all of the Own,er Users and the
Facility Owner.
'
"PotentialTerminatiQn
Event"has
the meaning givento such.teI".lIlinSectioil
13.1oft;his Agreement.
'Totcntlal
Terminatioll" J!tvent Notice" has the meaning given'to such tennin
Section 1~.2Oftbis Agreement
..
"Prop~l1Y" lIleansthe l"acility Pr9Perty and the User P'ro~;rties.
"Proportionate$hare"
has themeanin;g given to such term in Section 9.1.7 of
this AgreeII1ent.
"Rules" has the meaning given snchterm in Section 15.1 of this Agr~ment.
. "RWQCB"
"Shopping
the ShoppmgCenter
means the California Regional Water Quality Con,trolBoard.
Cent~:r· OWner'; means the fee owner OIowners frQID,time to time of
PrOperty.
"S1)opping CenterProp~I1Y"has
the meaning given
to such term
in Recital A of
. this Agreement.
.
~'Shopping.Cen1er Transport Pipeline" means all pipelines,JllaWs. connection,
valves. meters or other flow measurement devices, and other related eqUipment, facilities,
e
~stemsor improvem~nts now or hereafter located along the pipeliIle,betweenth
5
1012017.8
Shopping Center Property and the Facility Property that are used in connection with the
pipeline transport of influent from the Shopping Center Property to the Facility Property,
, and all easements and other rights pertaining to the use of such improvements.
"Tax Expenses" has the meaning given to such term in-Section 9.1.6 of this
Agreement.
"Term" has the meaning given to such term in Article 13 of this Agreement.
"Termination
Agreement.
Date" has the meaning given to such term in Section'13.2 of this
"Temlination
Agreement.
Notice" has the meaning given-to such term in Section 13.2 of this
'
"Transfer
Agreement,
Notlce" has the meaning given to such term in Section13.6
of this
"User Facilities" means all pipelines, mains, connections, valves, meters or other
flow measurement devices, septic, holding or other tanks, grease interceptors, pumps, lift'
,stations and other relatedequipment, ,faci;lities, systems orfmprovemems :&lOW
or
hereafte),"located on the User Properties or in any easemenrarea between.aUser Property
and another User Property, and used in connection with the collection, treatment, holding'
and transport of influe:llt to the Facility.
"User F3eilities,Upgt~des"hasthe
this Agr~ement.'
meaning given to such term in.Section 3.3 of
'" ,
'
"User ,Facilities UpgradeCosts" has the meaning-given to such term.in Section
3.3 oftbis Agreement.
'
''User Properti~"·has
A~ent.
the m~g
given to such term in Recital H of this ,
2. ,
Wastewater Services. Subjectto and in accordance with the termsand
conditions of this AgreelIlent,durlng the Term. of this Agre~ent Facility Owner agrees-to
accept the wastewater influent generated from the User Properties and treat and dispose thereof
in accordance Withthe t~
and provisions oftbis Agrecrilent Facility Owner shall perf orin the
wastewaterservices to be perrottned'by Facili:tYOwner under this Agree;me:ilt in complianeewith
all'Applioab!e Laws, including, withoutJ.i:rhitatiollo lUlordeISandlorwastewater
discharge
requirements issued by the R'YQCBand the City of Malibu with~ectto
t)le Facility. Owner
Users acki1owledg~ and agreetbat the obligation of Faciljty Owner to acceptwa$tewater from
the User Propertiesand perfennthe services set forth in this Agreewent is subject to the
continued right of Facility Owner, and aayrestdctions
placed'thereerr, Under Applicable Law to '
, operate the Facility. Subjectto the terms and provisionsofthis
Agreelllent, FacilityOWner
agr;ees to use its 1jesteffortdo obtain and keep in force all permits and approvals froD;l
Govemm~ntal Authoritiestbat are required ·fIJI the continued operation of the Facility and the
1012017.8
6,
provision by Facility Owner of the wastewater services to be provided by Facility Owner under
this Agreement.
2.1
Limitations on Volume onnfluent.
The obligation of Facility Owner to
accept, treat and dispose of influent generated by the User Properties shall be limited to the
following maximum Average Daily Flow and Maximum Daily Flow amounts ofinflueQ:t
generated from each User Property, and each Owner User hereby covenants and agrees for the
benefit. of Facility Owner not to exceed such limits with respect to the influent generated from its
User Property:
..
Property Owner
Shopping Center Property
East Shopping Center
Prop~tty
Gallons of Average Daily
Flow
Gallons of Maximum Daily
Flow
30,919
39,753
2,495
3;208
1,316
1,692
-.
Coldwell BankerProperty
....
-r-
Facility Owner shall have the right to require each OWner User to install and maintain at such
Owner User's solecostandexpease
a meter or other flow measurement device on the User
. Property owned by such Owner User to measure the volume of influent generated from such
User Property for transportto the Facility Property. In addition, Facility Owner shallhavethe
right to require each Owner User to install and rtiaint~inatsuch Owner User's sale cost and
expense a valve or s~Iar system to permit the regulation of influent flow fromtheUser
Prop:erty owned by such OWp.erUser. Each' Owner Uses-shall maintain, repair and replace any
~ch flow measurement 'device and/or valve system in good working order and condition.
.
Facility Owner-shall have a right of access to each User Property toperform, at its election, any
orall ofthe installation, maintenaace or repair' work described in thisparagrap~tazead and
lnQn.:itor~y flow measuremeat.deviees,
and/or tooperilte.any valve system to enforce the .
il;rfluentflQw limitations and restrictions set forthiJJ. this S~on2.1
and Section 2.2 below. No
Owner User sh.aU.tal,ce~y action wi@.:reSpecttQthe operation ofanyva}vesystem
that is .
inconsistent with or otherwise modifles anY acti.on,taken by, ot direCtive frOm. Facility OWner to
enforce the influent flow limitations and restrictions set forth in,tblsArticle '2~Each Owner User
;shaD reimbutse FacilitY 6wA~ :t~r all c~ and e~n~es incurred by I?~ty O~er in . . .
connection, with anyjnsta11ation, repair or maintenance work under this P~gtap~petforme4
by
Facility Owner pertaining to the User Fa<::ilities Qwried llY such Owner Uses; together with an
administrative charge of tenpercent (10%) of such.costs and expenses.
. .
2.2
Restrictions oil Content of Influent. The obligation QfFacilityOWJier
to accept inf11.1,ent
frolpeachUser
Ptrip6ny shaIlbe.subject to compliance by eacJi'Own,er Uset of
the requirements setf~rth in this Section 2.2 wlth respect to its User Pro-penr and User Facilities;
and the influent generatedtherefrQm..;Ea,ch OwnerUser shalLinstall, operate, maintain, repair,
upgrade and. replace the User Facilities and'improvementsloeated
on its.User Rropertysuch·that:
22.1 the influep.t generated, from such User Property is-from domestic
and kitchen usesonly;
...
I
1012017.8
7
I
2.2.2 the influent generated from such User Property complies with all
chemical, bacteriological, toxicity, temperature and other content requirements under
Applicable Laws regulating the influent that may be generated by such UserProperty
for transport to the Facility Property, including without limitation, the New Waste
Discharge Requirements applicable to the Property, as amended from time to time;
2.2.3 there shall no material change to the. chemical, bacteriological,
toxicity, temperature or other content, pressure or consistency of'the influent
transported to the Facility Property that has a material adverse effect upon, and/or
increases the cost of, the operation, maintenance or repair of the Facility or the
disposal by Facility.Owner of the effluent, sludge, sewage or othersolid wastes
generated therefrom, or that necessitates an alteration to, or upgrade of, the Faeility
(except as expressly provided in. Article 3 below);
2.2.4 any kitchen influent containing oil or grease shall first enter a
grease interceptor and receive pretreatment consisting ofoillvvatetseparation
and
filtration prior to entering any pipeline to a septic tank or other transport; and
2.2.5 each OWner User shallcomply (andcause each of its tenants to
comply) with such other reasonable rules and regulations as may be adopted by
Facility Owner from time to time to maximize the functioningand performance of the
User Facilities and the Facility, mCluding witholltlimitation,provisionspertainingto
proper management and use standards as to the subSfllnces discharged into the USer
Facilities and/or F~,
and periodic inspection and maintenance standards for
toilets', fixture units and User Facilities.
2.3
Intertuption of Sernces. Notwithstandingap.y contnp:y provision.of'this
Agr~e01ent, .Facility Owner ~.
nQt~, in breach of its:obIigatioIis 'under this Agreement, nor
shall FacilitY OWIierha'Ve any"liability to ally other Party, for any mterruption, cUrtailnient, delay
or failure in the. Wastewater or other services to be provided by Faciiity Owner underthis .'.
AgJ:e(fIIlentwhensnch iatermpticn, curtaihnent, delay or failure is caused by any breakage,
. malfunction or necessaJ)' ;repmto the Faciljty:. any intetiUPtion in utilities. any alteratiqn·or
modificatio.Il to ~e Facility teqWredtQ comply with. App1icaQle,taw~ or. aiy other cause set forth
in Section 10.3 oftbis Agrecinent. 'Facility Owner agrees touse.its diligent efforts to re~re.any
.
such service as soon as commercially practicable under theclrcumstances.
2A' NoncompliantInfiuent.
If influent generate<i:froina User Property does
not comply With any of the Iin1itatiQIl$, stancl~
or tequiremen~ ICgardingS1Jchilitllient set
forth in Sections 2.1 and 2.~ above, then Facility Owner-shall have the right to rej~t or restrict'
the flow of such influent to t1ieFa'cility by. curtailing or restl;ictin.g such flow from the offending
User PropeFty. Facility Owner.shall not be liable to any Owner User :fot any damage to User . .
Facilities or for any other losses or damages (Whether direct, indirec.tor cOnSequentia!)in.curred,
by an Owner User as a result of the exercise by Facility Owner 6fitS rightto curlaiI: or.restdct th~
flow (jfinfllle~t that.does :tJ.Qt cQ~ply With thereqniremenQi Qfthis A.greement. If Facility
Owner receives any influent from a User~erty
that does not comply with the linU~tions,
standards ~drequiIements'set
forth in. Sections 2.1 and 2.2 above, then in addi~ion to any other
tights or remedies that Facility Owner IJl3.yhave under this Agreement, the Owner User that
1012017.8
8
.J
owns the User Property from which the noncompliant influent is generated shall be required to
reimburse Facility Owner for all additional costs and expenses incurred by Facility Owner in
connection with the acceptance, treatment, processing, storage, pumping, disposal, discharge or
other handling of the noncompliant influent, including, without limitation, any damage to, or
additional wear and tear on, the Facility incurred in connection with such noncompliant. influent,
plus an administrative charge of ten percent (10%) of such additional costs and expenses. The
influent flow limitations and restrictions set forth in Sections 2.1 and 2.2 above shall be for the
sole benefit of Facility Owner, and Facility Ownershall have the right.to waive or agree to a
modification of such influent flow limitations or restrictions with an OWner User in the sole and
absolute discretion of Facility Owner. No such waiver or modification shall-be effective unless
expressly setforth in a written agreement between Facility Owner and the subject Owner User.
2.5
Reporting. Each Party agrees to perform such inspections, tests and
monitoring with respect to the User Facilitiesand the Facility as required under Applicable
Laws, and to prepare and file with applicable Governmental Auiliorities all reports and
Information.respecting the User Facilities and Facility as required under Applicable. Laws.
Facility Owner shalllx: provided with a·copy or all such reports. EachParty shall deliver to the
other Parties to this Agreement all information required by any such other Party in order for such
other Party to, comply vnthits reporting obligations under Applicable Laws. To the extent that
any reporting is required on ajoint basis the Parties shall cooperate with one another to complete
SUch joint reporting."
2.6
Non ..Exclusive Rights. Owner Users hereby expresslyacknowledgeand
agree that Facility Owner sltaJ.1have the right to use ,the Facility and Facility Property (alto
.provide wastewater services to otherproperties iti.addition to the User Properries, andlor(b) for
()therplllPQlies, that do not interfere with the, wastewater services to be provided by Faeility
.
-Ownerunder this Agreement. If Facility Owner hereafter elects to use the Facility to provide'
wastewater services'to .pro-perty other 1:han the User Properties, then in accordance with Section
9.1.7ofthis AgreemtmtFacijity OWn,er shall reasonably adjust theProPQrtionate Share of each
U~erlToperty to reflect a fait allocation to such otl,ierproperty 'ofllie additional<Facility Costs
incurred (or the services provided by Facility Owner to such other property.
3.
C~inpHanceWithN",wWaste Discharge Rs.tuii'e.Dl,e~~.
.
.
.
3.1
New Wastewater DiseJiarge Requirements.
On December 7,2000, the
ItWQCB issued the following to Facility OwnerincoiineCtion with the" adoption by RWQGa .of
new wastedischarge ~ementli
,for the-User Properties and the Facility (collectively, the
"New Waste Discharge Requlrements");
(a) :eoa:rd'~der No. OO-lS2;(b}Moqitonng
and
Reporting PrograD;l CI 8'158; (c) Standard.,Pi'ovisiQllS,Applicable to WllSte Discharge
Requirem,enti;; and (d) Time SchedQle Order:'NQ.Oo-1'83. A copy of the New Waste Discharge'
ltequirern.eiits is atlachedhereto as Exhibit E and incorporated lJ,erein by reference. Currently the
wastewater receives only primary treatmenttbro~
a series of~ease interceptors oJ,lthe
Shopping Center Property and septic tanks priorto disposal into seepage. pits
the Facility
Property. The New Waste Discb3fgeRequir~ent~dmpose
additional reqUirem~t'$ with respect
to the treatment and. ~'llalofeft1uentftom
the Facility. inclu~without 1iD1itation,.the
instalIa:tjpl) of'a ~tmentsysterilto
provide for disinfection, of the effluent.prior to its discharge
intotheseepage pits. At the time of the issuance of the New Waste Discha.rge Requirements,
on
lOl:l017~8
9
,
I
1
i
I
Facility Owner was not capable of achieving compliance with the New Waste Discharge
Requirements utilizing the existing Facility. As a result, the RWQCB issuedTime Schedule
Order No. 00-183 (the "Original TS01i) to permit Facility Owner to achieve compliance with
the New Waste Discharge Requirements, through the installation of upgrades to the Facility in
accordance with the time schedule set forth in the Original TSO. On March 28, 2003, the
RWQCB issued Order No. R4-2003-0060 amending the time schedule set forth in the Original
TSO for compliance by Facility Owner with the New Waste Discharge Requirements (the
"Amended TSO"). A copy of the Amended TSOis also attached hereto as a part of ExhibifE.
SUbject to the terms and provisions of this Agreement, Facility Owner agrees to comply with the
New Waste Discharge Requirements, as amended or modified by the RWQCB from time to time
in accordance with the schedule set forth in the AmendedTSO, as such schedule maybe
extended or otherwise modified; by the RWQCB.
3.2
F~c~tv Upgrade Costs. For purposes of this Agreement, "Facility
, Upgrade Costs" means all costs, fees and other expenses incurred by Facility Owner in .
connection. with the purchase, acquisition, design, construction, permitting andlorinstallation of
new or additicnalimprovearents,
equipment, systems orfacilities, or upgrades.modifications
or
alterations to or of the existing Facility, to c:omplywitb. the.New Waste Discharge Requirements
(the "Facility Upg~ade"), including, without limitation, a construction managementfee equal to
ten percent (10%) of all other Facility Upgrade Costs to compensate Facility Ownerfor '
performing lJIe Facility Upgrade. Each Owner User shall be required to reimburse Facility
Owner-for its Proportionate Sllare of the Facility Upgrade Costs. Fer.purposes of such
reimbursement, the Facility Upgrade Costs shall-be amortized'over a fifteen (15}year period "
commencing upon the fiIst ~y of the calendar :mQntb,follciwing the date of the substantial
completion of the FacilityUpgrade (the "FaciUty'Upgra(,1e Cost AlnoJ:Dz.ation Period"), with
intetest on. the remainiilg uaamordzed balance' of the Facility Upgrade Costs at a 'fixed annual
rate of interest equal to the Interest-Rate in effect as of the date of the commencement byFacility
Owner of the ,Facility tJpgJ;'B(le. On or before the first day of each calendar,month-during the
FaciJity'Upgrade Cost. AmQitiziUjon. Period, each Owner User-shall pay to Facility Owner a·
constant mlllltbJiy ~oUIltsuffi~ent
to fWl1 amortize its Proportionate Share J)fthe Facility
Upgrade Costsover the Facility Qpgrade CostAmortizationferiodwith
interestas specified in
'.the i.mm.e4iately precetijng sentence (the "Facility Up~adeAmortizationAIDonntS"l
3.3
Required Modifications to User Facilides.The
New Wl;I.Stewater .
D~charge RequirementS in effect as of the date, oftbis Agreement a1~orequire certain ~4.diti.onal
i1l1ProvemeIrts"upgrade$ or other modifioatiens to the User Facilities, including without
1iniitatio~ cettam work pertaining "to the grease interceptors located on the Shopping Center
Property and the inStallation oftiow meters with. respect to theUser Facilities (collectively, the
"User Faciliti~Upgradesj.
F'acilityOwnetshall
perform all User Facilip.~~ Upgrades .
requirc:ldto comply with. the New Wastewater. Discharge Requirements in effect as of the date of
Uris,Agreemenl Each Owner User ~mill reimburse FacilityOviiler for the costs, fees and-ether
.expenses (together with an adnilitistrattve cham~ often percent (10%) oftsuchcosts, fees and
expeus¢s) incurred by Facility Owner inpetfoIIIiingUser Facilities Upgrades work with respect
to theUser Facilities located on the USer Property owned by such Owner User (the "User
Facilities Upgrade Costs"), ~otwithstanding the foregoing. the Shopping Center Owner shall
have the righUo ,have tile User Facilities (IpgradeCosts for which if isresponsible under this
Section 3.3amoUize4 (with interest) and paid by Shopping CenterOwnerto
Facility Owner on
1012017.8
. 10
the same basis as the amortization and payment of its share of the Facility Upgrade Costs
pursuant to Section 32 above. Each ofthe other Owner Users shall reimburse Facility Owner
for the User Facilities UpgradeCosts for which it is responsible hereunder within thirty (30) days
after receipt of a written request from Facility Owner for such reimbursement
If after the date of this Agreement fhere are any future changes to the New
Wastewater Discharge Requirements that require additional improvements, upgrades or other
modifications to the User Facilities, then each Owner User shall be responsible, atits cost, to
make such required additional improvements, upgrades and other modifications with respect to
the User Facilities located on its User Property.
4.
Maintenance and Repair.
4.1
Obligations of Owner Users. Each Owner User shall maintain, repair
and, as-necessary, replace, at such OwD.eIUser'ssole'cost
and expense, the User Facilities
located on its User Property in good operatingcondition and repair in accordance with customary
industry practices, and in a condition such that such User Facilities and the influentgenerated
',
'from such U serProperty are incompliance with all Applicable Laws. Each OwnerUser shan
enter into and maintain a service contraotwith.a.thirdparty
maintenance provider for the,
periodic inspection and maintenance of the User Facilities located Oil the User Propertyof'suoh
OWner User (including, without limitation, any and all ]ift or pumping, statiQus andgrease
,interceptors). Facility Owner shall have the right to ~rove the jdenuty of thetbird.party
maintenance provider and>the terms and conditions of the contract. which apprqval shallnetbe
unreasonably Withheld, conditioned' or delayed Such maintenance contract shallpro\lide for
emergency contact information to be provided, to Facility Owner for usedn the ,evep.tof any
emergency or other circumstance pertaining to the lJser Faci1itiesthat requires immediate
attention. Facility Owner shall have a·rightofentryon
to the User Properties to iIispectthe User
Facilities frolll titne to time,
4.2 Lift Station Maintenance and Repair Costs. Notwithstandingthe
provisions of Section 4.1 above, thea~
r.easOriable out-of-pOcketeostS and~em;es incurred
by the Shopping Cente, Owner for the repair, maintenaJ1,ceatJ,~,if necessary, replacement, of the
"existing lift station located on t1J:eShopping Cellter P!operty,uSed,to})umpinillI@ttoth
Facility
Property shallbe shared.between the 'Owner Users ofth~ Shoppjng'CenterPr'opeity
andtlie East
Shopping Center propertY
th~ same proportion as the relative Proportionate Share of each such
OwnerUser.(exc!udiIig the OWiier User of the CQldweD B~
Property); The OWllerUset' of
the Bast Shopping Center Property ~allteimburse the Shopping Center Owner: for its share of
, any such expenses pertaining' to the lift station ~,tlmtY{30~
days after receipt of written
.demand for such'reimbursem,ent from the ShoppUi.g center Owner, which dellland,$ill be
accompanied by third partyiIivoices and.other reasonable evidence of such costs. In the event
,that any-expense under this Section 4.2 exceeds.One Hundred Thousand Dollars ($ 100,000.00),
then prior to incurring.such expense, the Shopping Center Owner sh,allnotify tJiIe Owner User of
'the East Shopping&:fiter Propertyin Writing of'the projecfud.expenditure, and such Owner User
shall havethe right to approve theamount{)f such exp¢Jldi~,which
approval slIaJl not be
unreasonably Witbheld;conditioned' or delayed, The Shopping Center Owner shall Include in its
written notice a statement in bold letters 'that if any Owner' User s~ fail to respond to such
written notice withinthirty (30) days, then such OwnerUser shall.be deemedto have approved
e
m
1012017.8
11
such expenditure. If following receipt of such notice all Owner User fails to notify the Shopping
Center Owner of its reasonable; disapproval of the expenditure within the foregoing thirty (30)
day period. then such Owner User shall.be deemed to have approved the expenditure.
Notwithstandingthe
foregoing, the Shopping Center Owner shall not be required to obtain the
prior consent of the other Owner Users to expenses reasonably incurred to remedy an emergency
situation requiring immediate attention, but in such case the Shopping Center Owner shall
promptly notify the other Owner Users of the emergency via telephone confirmed-by written
facsimile, and shall take such action as reasonably required-to remedy the situation.
4.3
Obligations of Facility Owner. Facility Owner shall maintain, repair
and, as necessary. replace the Facility, or portions thereof, in good operating condition and repair
in accordance with customary industry practices, and in a condition such that the Facility and the
effluent generated therefrom is in compliance with allApplicable taws; provided, however, that
Facility Owner shall not be responsible for any noncompliance of effluent With Applicable Laws
that is-caused by influent from the User Properties that does notccmply with the requirements of
this Agreement. Facility Owner shall perform its obligations under this Section 4.1 at the cost of
Facility Owner, subject to reimbursement of such cost by Owner Users in accordance with the
provisions of'Article 9 below. Except as providedinSectiolllO.4above,
eachOwnerUser
waives any right to perform the Facility Owner's obligations under this Section 4.3onbehaIf of
the Facility Owner.
.'
.
5.
Insurance.
5.1
CasnaItylnsurance.
Facility OWner $J:Iall carry-all-risk physical damage
insurance on. the Facility; including, wilhout liprltation, fire and extended coverage, and
.vandalism and malicious mischiefelldbrsements.Each
~er
US.er shall cam' a11~phySical
damageinsurance on the UserfaciUties located on the User Property of such Owner U$ef;.
'
including" Without limitation, fire and extended coverage ..•and "M9alj~
and malicious mischief
eadorsements. The fQregoingins~ce
sh~ beinan amountequaI tothe'then-co.rrent fbIl
.
rep~aceJnent cost (new; without deduction for depnriation, hut exclusive of foundations, footings
and excavations) of the insured improvenien:tS, sUbj.¢ctonlyt6 commercially-reasonable
deduetibles custOD:1arilycarried by other prudent ()~S
of comparable properti~. Facility
Owner shall have the right, bulpotthe obligation, to catty ea.rtbquake CQverage with respect to
t1:l,eFacility.
5,2 ,Liability In$nr~ce.
Each Party' shall cattycOll)Il1eroialg«merafliability.
msurance coveragecovering the insured agaiIlst claims of bodily injuty~ persQ~ injury and,
property damage atisiJig out 9ftb,e use of the Propertyowned by $Uch p~; includhlg, Without:
limitation, the Facility and the User Fa~el)~
as applicable, in
amonnt.ofnot less than Five _
Ml:llioIi llonars($S,OOO,OOO.OO) each oecurrenca.annualaggregate,
subject only to meb;
commercially reasonable: deductible as is customarily carried byother.prudent owners of
comparable properties. Such: commercial geneialliabUity coverage shall include abroad form
commercial general liability endorsement covering the insmfugproviSi()DS of this, Agreement and
the performance by such Party. of its indemnity rilJligations set forth in this Agf~nieQ.t
an
.
"-'
5.3
Employers~ Lia~Uityand WorkerstCollleensation
Insurance.
Each
Party shall keep and maintain workers' compensation insuranceand employers; liability
1012017.8
12
coverage covering all persons employed in connection with any work or services under this
Agreement and with respect to whom death or bodily injury claims could be asserted against
another Party.
5.4
Forms of Policies. The minimum limits of the policies of insurance
required under this Agreement-shall in no event limit the liability of a Party under this
Agreement. The insurance described in this Article 5 shall (a) with respect to the coverage
required under Sections 5.1 and5.2 name the other Parties .(and upon written request, their
Mortgagees) as additional insureds; (b)be issued by aninsurance company having a rating of not
less than A- vm in Best's' Insurance Guide and licensed to do business in the, State of Califomia;
(c) be primary insurance as to aU claims thereunder and provide that any insurance carried by
another Party is excess and non-contributory; and (d) provide that suchinsurance.eannot be
cancelled or coverage changed unless.thirty (30) days; prior written notice shall have been given
to the other Parties-land upon wri.ttenrequest,their
Mortgagees). Each Party shall, on the written
request of another Party, p;romptly famish the requesting Party with a certificate evidencing its
compliance with 1:lle insurance coverage requirements of this Article 5. Ea¢hParty may satisfy
its obligations under tbisArticle 5, in whole or in part, by means of a. so-eafled blanket policy or
policies of insurance which are in conformitywithtbe
requirements of this Article 5 and provide
the coverage required hereunder. If any·Parly fails ,to obtain or maintain the insurance requited
. hereunder and does not cure such failure within. ten (10) days after written notice from another
Party, the. non-breaching Party shall-have the right to procure the required insurance on behalf of
the breaching Party, in which case the breachingParty shall reimburse the non-breaching Party
for the cost of such insurance upon Written demand from the non-breac.hip.g Party.
"
55
Waiverof Subrogation.
Each Party agrees to have its insurance
company issuing propertydampgeinsurance
waive any rights of subrogation that such company
mayhave againshhe otb.erP~es,
so long as such insurance is not invalidatedth~reby~ Each
party: hereby waives any Jigh~,that eithet may have apst
another party QD account o£an.Y loss
or damage to its Property" tQ tb.ee~ent such, loss or damage is insurable under the coverage
desqnbed in Section 5.1 above.
.
5.6
"Cost of Insurance. Eae;:p"pa:J:ty
~ll be responsible forthe cost and
insuranCe coverage required to he carried by-such PartY under this Agreetnent,
except that Facility Owner ~Ji811'be entitled to reimbursement for the cost and expense of the
insutancecarriedbyFaoility
Owner with respect to the Facility Property and Facility in
accordance withthetennsand
provisi~of
Article 9 below.
e~eoftbe
6.
Inde~cati~n.
Subject to the provisiollS of Section 5500oye, each'Party
sball indemnify, defen.d'lJPd poid the other ,party and its affiliates, officers; directors, employees,'
agents, shareholders and partners harmless from.and a~taU
cl~,liabilities,
damages,
causes of action, lesses, costs an<;lexpenses, including Without limitation, attorneys' fees
(collectively, ",Claims") which. they may sustain or suffer, or to which they may become sUbject;
as a,result of (a) the death of, or bodi.1yinjury to,anY',p¢rgori, ordain age to the prQpeIty of ot1l,e~,
which oCctn'Sin,oI"Olltheportion of the PropertyQWiied by such'irid~Party
during Such
P~'s
period of ownership, or whichoccurs iit connection ,with the use by the indemiUfying
Party of an easemen~graD.tedt9 such indemnifying Party under this Agreement, in each "case
•except to the extent suchClaim arises from the. negligent act or omission or willful misconduct
.
1012017.8
13
of another Party, its agents, contractors or employees and is 110tcovered by proceeds from ..
insurance carried (or required to have been carried under Article 5 of this Agreement) by the
indemnified Party; (b) the negligent act or omission or willful misconduct of the indemnifying
Party, its agents, contractors or employees, except to the extent the Claim is covered by proceeds
from insurance carried (or required to have been carried under Article 5 of this Agreement) by
the indemnified Party; or {c) the nonperformance or breach of any covenant or agreement made
Of undertaken by the Indemnifying Party under this Agreement, The indemnifiedPartyshall
give the indemnifying Party prompt notice of any Claim entitling such Pertyto.indemnification
pursuant to the provisions of this Article-S and the indemnifying Party shall defend the
indemnified Party with respect to such Claim with counsel reasonably satisfactory to the
indemnified Party. Notwithstanding any contraxyprovisionofthisAgreement,
no Party shall be
liable to another Party under this Agreement for any losses or damages incurred by another party
in the nature of consequential damages, lost profits or diminution in value.
7.
Damag~and Destruction.
7.1
Facility. In the event that the Facility', or any portion thereof, is damaged
or destroyed, Facility Owner shall repair and restore the affected portions of the Facility in a ..
diligent manner. Aiiy cost of'therepairor
restoration in excessefthejnsuranceproceeds
received by Facility Owner for such restoration or repair (Qot including rental interruption or
additional expenseinsuranceproceeds)
shall-be reimbursed by Owner-Users to Facility Owner in
accordance with the provisions of Article 9 below, No ~ge
to orde&tfuctionoftheFacility
shall relieve any Owner User Qfitsobligation to reimburse Facility Owner for lacillty Costs
incurred by Facility Owner d~g
the period of'such daInageor destnictionpursuaat to Article 9
below, nor relieve any OwnerUser of its obligatiQutocontinue
to make any monthly Facility
.Upgrade Amortization Payment$ and Capital· Expense Amortizatier» Payments required to be
made pursuant to Section 32 above and Section 9.1.5 below, iespectively,during the period of
such damage or destmction, In addition, no damage to or destruction of the FacilitYshaU' relieve
Shopping Center Owner afits obligation to reimburse Facility Owner fOf ~Y monthly
arUoJ:ti?ationpaynlen~ of User Facilities Upgrade Costs that may be amortized pursuant to
Section 3.3 above, During any period of repair and restoration, Facility Owner ~all. have ·tb,e
right to limit the v9111meof influent accepted at theFacility'andlor to utilize offsltedisposal
. services or other means as reasonably necessary to facilitate the repair and restotatio~ aild·all
costs and expenses inctri;re41>YFacility Q-wner laeeaneetion' therewith. shall.be ~iwt~4 as an
Operating
UllderArticle 9 below .. No dalnage to or destmctien of the' Facility or any portion
thereof,shall permit anyPaIty to termiliate this Agtee1tJ.ent,andeach Party hereby waives .
.Sections 1932(2) and 1933(4) of theCalifoD,rla Civil Cede' or any other provil>ioIl oflaw to the
contrary ..
cost
7.2
User Facilities. In iheeyent any User Facilities; are damaged or
destroyed, the owner lJseron whose User Propenysuch damaged tJ:ser Facilities are located
shall, at such OWner User's sale cost andexpen&e, ~air errestore.theaffected
User Facilitiesin
a diligent manner. Nodan;tage to or destruction of any User Facilities shall relieve any OWner
User of its obligation to comply with the infl1JentsbU1~
~ctionsan,d
li,nitatiQPS
forth
in theSection Z,2.and2.j of this Agreement, In ad9itio~ 00 damagete. or destruction
user
Facilities shall relieve any Owner User 6fitsobligation. toreimburse Facility Owner for Facility
.Costsincurred by Facility Q.wner during the periodof such damage or destruction.pursuant to .
set
or
IOl2017.&
14
Article 9 below, nor relieve any Owner Userofits obligation to continue to make any monthly
Facility Upgrade Amortization Payments and Capital Expense Amortization Payments required
to be made pursuant to Section 3.2 above and Section 9.1.5 below, respectively, during the
period of such damage or destruction. Moreover, no damage to or destruction of User Facilities
shall relieve Shopping Center Owner of its obligation to reimburse Facility Owner for any
monthly amortization.payments of User Facilities. Upgrade Costs that may be amortized pursuant
to Section 3.3 above. No damage to or destruction of any User Facilities or of any other
improvements on any User Property shall provide any Party with the right to terminate this
Agreement, and each Party hereby waives Sections 1932(2}and 1933(4}oftheCalifomia
Civil
·Code or any other provision of law to the contrary.
8.
CondeDlllation.
In the event oftbe. acquisition of anyportion of the Property or
the Facility pya Govemmirital Authority pursuant to condemnation or the exercise of its power
of eminent domain, the owner of the portion oftlIe Propertyor. Facility that is condemned or
taken by eminent domain. shill have the rigl,lt to receive the entire award or payment in
cenneetion therewith, except that if the taking pertains to the Facility or the User Facilities, or
any portion thereof, and the condemning authority terminates this Agreement with respect to' the
portion of the Facility or Usef'Facilities~o taken, !hell the other Parties to this Agteemeilt (i.e.,
those Parties who, do not own thetaken Facility or User Facilities, but who were served thereby)
shall have a right to make a separate claim against the taking al.lthority {or the termination of
such servicec.Bxoept to the extent that-the taking authority terminates this AgreeDlent with.
respect to any portionofthe:Facility
or User Facilities taken-by such takingauth.ority, no
condemnation or eminent domain proceeding affecting the Property or the Facility,
any
portion th~eo~ $hall terminate this Agreement andeach Pintyhereby waives any and all rights it
. niightotheiwise have to ternrlnate thisAgr~IIlentpursuantto
Sectio:t:l1265.130 oftheCalifQnlla
Code of'Civil' Procedure or any other provision oflaw •. For purposes
this Section 8 a .Wdng
by c9ndernnationQ1" the exercise of the .pewer ojfeminent domain shall also include a conveyance
in lieu of sueh taking.
or
or
9.
.Facility (:;osts.
9.1
Definiti1ms.
defined as set: forth below:
For purposes oftlns ~meilt,
the followIng terms shaD be
9.1.1 "Capital Expense" means;my expenditure which. under generally
accepteda~oun,1il);g principles, consistently ~ppJied, is required to be capi~.
9.1 ~~ '"Expense Year"· means each calendar year" or portion thereof,
during the Tel'In,oftb1$ Agreement; provided, however, thafFaciIity'(hv:nersbaU
have the right, upon Written notice to OwnerUsersto ,change the ~ense
Year :&0J9.
time to time to any other twelve (12) Coru;~month
period, ail~ in the event of
any such change, each OwnerUsers.shase of Facility Costs shall be equitably
a(ljusted for any Expe~ Year involved in thecbange.
9.1.3'TacjJity Costs" meansthesum of Operating Expenses and Tax
Expew;es.
1012017.8
15
9.1.4 "Gross LeaseableArea"
means the square foot area of any
improvement available for lease or occupancy, as measured from the exterior face of
any exterior walls of the subject space.
9.1.5 "Operating Expenses" means all expenses, expenditures and other
costs of every kind and nature that Facility Owner incurs during any Expense Year in
connection with the ownership, operation, management, maintenance, repair,
replacement or restoration of the Facility and/or the Facility Property. Operating
Expenses shall.include, without limitation, (a) the cost of all utilities and the cost of
operating, managing, maintaining, repairing, renovating, replacing or restoring any
utility systems serving or constituting a part of the Facility; (b) the cost of-licenses,
certificates, permits and inspections, and other fees incurred in connection with the
operation of the Facility and providing the wastewater services described in this .
Agreemel1ct,togetlierwiththe cost of contesting the Validity or applicability of ~y
govemmental actions Pe$lining to 'the Facility; (e) the cost of insurance carried by
Facility Owner witll respect to the Facility andlorthe Facility Property; (d) the cost of
all supplies, tools, equipment and materials used in the operation; repairand
maintenance of the Facility and/or the Facility Property; (e) fees, charges and other
costs. mcludittg .eensulting, legal.' and accounting fees, of alleoatraetors or consultants
engaged by Facility Owner or otherwise reasonably incurred by Facility OWner in
connection with the operation, management, maintenance or repairof'the Facility
andlorthe Facility Property; (f) any costs incurred under any eqgipmentrental or
management agreements, including a commerciallyreasoaable
JP8.Il8:gellleIJ,tfee;(g)
wages, salaries and other compensation and benefits.of all persons engaged in the
opeJ;3.tio~ management, maintenance or repair of the Facility8l1d/or Facility.
PrQpetty~ including; without limjtation" social security taxes, unemployment taxes or
.·~ce,
and anY other taxes which may be levied on such wages, salaries,
compensation and/orbenefits; provided, however, tbatif any employee ofFl;lCility
. Owner provides services for more than the Fa.cility and tbe Facility Property, then
.only a prorated pottlo,llC)fsucqemployee's
wages~ benefits and taxes shall be
includf;d inOperating-Expenses, which portion.shall be based on 'the relative working
time devoted to the Facility and the FaCility Property; (h) anycosts, eJqlenses or
payments incurredby Facility, Owner under any easement, license or similar .
. agreernem p.ertaining to the.use or operation of the Facility or thes~rvipes provided
·l1y Facility Owner Widet this Agreement; (i) the cost of ~ecurity; (j) any and all
iDspeetion, testing and!ormQnitormg costsiacurred by Facility oWner in conneetien
with the operation of the user Faeilities or the Facility. including without limitation
any groundwater OJ;' surface water monitolingandlor testing; (k) any cost of the repair
or restoratien of the Facility arising from a.damage to or desttuetiontb.ereof: to the
'extent not reimburaed 1:>Y insuraace proceeds; (l) all costs incurred
connection with.
the QPeration, maintenance, repair, alteration, relocation or expansion of any seepage
pit located on the Facility Property or otherwise used to dispose of discharge
the
.Facility; (m) all costs incurred by Facility Owner for the pumping"trcmsport, storage
or disposal ofeffiuent or sludge, sewage or other discha;fge :froXfitheFacility;' (n) aU
costs incurred by Facility Owner which are intended as a labor-saving device or to
affect other economies in the operation or.maintenanee of'the Facility; (0) all costs
incurred by Facility Owner to comply with any Applicable Law that pertains W the
m
from
. lQI2017.8
16
Facility or to the processing, treatment, disposal or discharge of wastewater, influent,
effluent or other material from the User Properties served by the Facility, including
without limitation the alteration, modification or upgrade of the Facility and/or the
preparation of all reports required to be filed by Facility Owner pertaining to the
operation of the Facility; (p) the cost of the repair and/or replacement of broken or
obsolete equipment or systems; (q) the repair, maintenance or cleaning of pipelines or
other components ofthe Facility, Includingwithoutlimitation,
any hydro jetting; and
(r) any other costs or expenses incurred.by Facility Owner in conneetion with the
performance by Facility Owner of the terms and provisions of this Agreement.
All Operating Expenses which are Capital Expenses shall be amortized OVerthe
useful life of the expenditure as reasonably determined by Facility Owner, With
. interest on the unamortized portion of'such expenditure at the Interest Rate in effect
as of the datI} suchexpenditure.is
incurred, and included in Facility Costs on such
amortizedbasis,
The amortized portion (includingintet'el'lt) of Capital Expenses to be
included in Facility .Costs during any particular Expense Yel:q"is referred to herein as
the "Capital Expense·All'lortizationAmounts."
9.1~6 "Tax Expenses" means all :federal, state, county or local
governmentalor municipal taxes; fees; charges or other impositions of every kind and
nature, whether general, special, ordinary or extraordinary (including; without
.
limitation, real estate taxes, general aadspecial.assessments, taxes basedupon the
receipt of rent, gross receipts or sales 1m(es, personal property taxes and business.
license taxes); which Facility Owner pays d~g
any E,xpenseYear because of' or in
connection wi'$the ownership or operation of the Facility or theF8cility :Property,
TaX Ex.p~sesshal~ Includeany assessment, tax, fee, levy or charge jn addition to, or
in substitution, partially or totally; of any assessment, tax, fee, levy Or charge
.
previously .inclUdedwithin the defiriition of Tax EXpenses. Tax Expenses Shall also
include ~Y expenses inturredby Facility Owner in ~ttemPtingto p:J,:otest,reduce or
minimize T~ Expenses .. Notwithstandiilgthef(u'egoing,
TaJI'; Expenses, shall not
inoludedncome, gift, estate, ftanchise;inheritancepl" succession taxes.
9.1.7
~Tr(Jportionate Slutl"e" means with respect to each·~
User
the number of Square feet of gross Ieaseable area' of itnproveIl1~ts located on the
User Pr{)pe,rtyowned by such Owner traer, divided by the total nmnber of square feet
of gross leaseable area. of all 'improvements located on all of the User Properties. The
Parties hereby stipulate and agree thatthe square footage of gross leaseable area of
improvements on each of the User Properties as of the date pfthiS Agreement and the
Initial Proportionate Share applicable to each Owner User are as follows:
Currellt Gross
Leaseable Area
Shopping CeIJ.tcr Property
H5~152
..East Shopping Center
. Property .
1012017.8
Proportionate
Share
8834%
7.13%·
17
I
Coldwell Banker Property
4,900
3.76%
Notwithstanding any contrary provision hereof, in no event shall the Proportionate
Share of any User Property be calculated based upon a gross leaseable area of
improvements that is less than the current grossleaseable area of improvements on
such particular User Property as stipulated above, even if due to demolition,
alteration, damage or destruction, or other cause the gross Ieaseable area of such
improvements is in fact reduced, and notwithstanding that such improvements, or
portions thereof, might not be occupied from time to time. If the gross .leaseable area
of the improvements on any User Property is hereafter increased, then each Owner
User's Proportionate Share shall be adjusted to reflect such increase.
Notwithstanding each Party's Proportionate Share as set forth above, (a) all Facility
Costs pertaining to the Shopping Ce~ier Transport Pipelineshallbe shared by the
Owner Users of the"Shopping Center Property andEast Shopping Center Property in
proportion to their relative Proportienate Shares, and the Owner User of the Coldwell
Banker Property shall not be responsible for any such costs, and (b) the OwnerUser
of'the Coldwell Banker Property shall be responsible for all Facility Costs pertaining
to the Coldwell Banker Transport Pipeline and the Owner Users of the Shopping
Center Property and Past Shopping Center Property shall notbe responsible for any.
such costs,
..
If Facility Owner hereafter elects to use the Facility to provide wastewaterservices to
property other than the UsetProperties;then
Facility Owner shall re~onab~y adjust
.the Proportionate Shar~ of eaehUser Property to reflect a fait allocation to ~ch()ther
.property of the additional Facility CQsts incurred for theservices provided byFacility
Owner to such other property.
Notwithstanding any ~ontrMY provision of this Agr~~lI1ent,tl?eb,.OwnerUser's
Proportionate Share With respect to Facility Upgrade Amortizatioil An:i,ounts and
Capital Ex;pense Amortizllti(:m Amounts shall b~calculatedas of the date the .
underlying Facility Upgrade Costs and Capital Expenses (as applicable) were
. incurred (or irrevocaplyconimitted tobe incurred if a Tetmin8tionNotice is delivered
by an Owner User after an irrevocable commitJilentby Facill"tYOwner to jneur such
expenses but.prior to the date sueJ? expenses.are actually incurred1;}y Facility OWner),
and each such Propottienate Share shall not be sUbject ro··futUre ~dj~ttqenl
If'pursuant to Article 13 below this Agreement is,ternrinated wjth respect to one or
more, but tiot all, of the OWner U~erS, then Facility Owner shall reasenably adjlJSt
each remainingOwner UserS, PrQP9ftionate Share to reflect the~tion,ofthis
,AgreeIl1~ntwiili. respect tathe ~ted
Owner User(s);provided t&at .suelr .
adjustment shall'net affect each .Owner User's PJoportionate $.hare (including the
Proportionate
of any·tenninated Owner User) ·ofFacility Upgrade Amortization
Amounts .and Capital.Expense AmortizatiOn AmoUnts for Facility Upgrade Costs and
. Capiml Expenses tbatwereincurred
(or as towbich,Faciijty Owner.was then
irrevocably committed to incur) prior to the Termjnatioll Notice pertaining to the
S.
t0l201H
18
terminated Owner User.
9.2
Pavment of Facilitv Costs. Prior to the commencement of each Expense
Year, Facility Owner shall endeavor to provide each Owner User with an estimate of the Facility
Costs projected to be incurred by Facility Owner for the ensuing Expense Year (the "Estimated
Facility Costs"). On or before the first day of each calendar month during each Expense Year,
each Owner User shall pay to Facility OWner one-twelfth (1l12~ of such Owner Users
Proportionate Share of the Estimated Facility Costs for such Expense Year. If Facility Owner
fails to provide the foregoing estimate of Facility Costs prior to the commencement of any
ExpenseYear, then each Owner User shall continue to pay monthlyinstallments of Estimated
Facility Costs based upon the estimate for the previous Expense Year until such time as Facility
Owner delivers its estimate statement for the current Expense Year. FacilityOwnershall
endeavor to deliver to each OWner User within ninety (90)da.ys after the end of each Expense
Year a statement that sets forth Qie actual Facility CostS incurred. during the previous Expense
Year. If an Owner User's Proportionate Share of the actual Facility Costs for an Expense Year
exceeds the total estinlatedFa.cility Costspreviously paid by such Owner Useffor such Expense
Year, theiiWithin thirty (30) days after the delivery by Facility Owner of the statement of actual
Facility Costs, such Owner User shalldeliverto Facility Owner the amount of the 1:indetpaylnent.
Iran Qw:netUser'sProportionate
Sbare of the actual FadlityC:ostsfor
an Bxpense Year isless
than the total estimated.Facility Costs previously paid by such Owner User fOr such,Expense
Year, then such Owner User shallbe entitled to a credit against the next payments4ue by such
Owner User to Facility Owner.underthisAgr~m~nt
until such time, as the overpaynientis fully
applied; provided, that ifth~re is any overpayment at the end of the Term qftbis Agreement and
such' Owner User has fully paid aU aDlou1ltSrequiiedto,.be.paid by OwnerUser under tbifr
,Agre~ent,theJ:l. Facility Owner Shallrettnn'Sl,lch oVerpaYIneI1t tosuch OW;J;ler Userwitllinthirty
(30) daysa~t the. daliveryby Facility OWner of its statement of'actual Facility Costs. On not
more~an two (2) occasions during any Expense. Year. Facility Qwnershall have ~erigb.t to
adjustthe estimated Facility Costs projected by Facility' Owner to 'be incurred forsuc::hExpense
Year a,nd t4 m,onthly estimated payments to be made byeachOwner
qsershallithereafterbe.
adjusted to reflect any change in the attioUIitof such estiniatedFacilityCosts.
No tenirlna_on of
this AgJ:et:mtent sh@ relieve-an OWner User of its obliga~li to pay its ~OP()niQl}ate Share of
Fa6Uity Costs. for any E1cpense Year; or portion th~of,· prior to the termination oftm&
.
.Agteement, and the Facility Costs for any pR{tial EXpense Year at the end o:ftheTenn oftbis .
A~n;li~nt shall beprorat~d ona per diem basis.
.
e
10.
DefanltsIRemedies.
HUDefault.For purposes of this Agteemen~~'Default"means.a;breach by a .
Party 'of any covenant,resmetion,
term or pmvi~ion of'this Agreement aIldthe failure of such .
Party to cure such breach withul thirty (30) days fono~
written notice from an. aggrieved·
Party ~ecifyfug the breach; provided. however. if the nature of ~e particulatbreacll reasonably
requires more than thirty (30) da.ysto cure, then the breaching p~
shall not be eonsidered to be
inDefault of this Agreement if such Party commencesthe cure of the breach within the'.
foregoingtbiN
(30)dayperiQd and Jhereafter diligently prosecutes such cure tocmnpletion.
10.2 . General Remedies.
Articles 13 and. 14below, in the
1012017.8
evell,t
Subject to the provisions of thi~ Section 10:2 and
of any,Defaultof this Agreeni"":lt bya Party hereto, any
19
.
aggrieved Party shall have all remedies at law or in equity for such Default, including, without
limitation, an action for damages and/or injunctive relief. If an Owner User is in Default under
this Agreement, Facility Owner shall also shall have the right, but.not the obligation, to suspend
performance of all or any portion of Facility Owner's obligations hereunder until such time as
Owner User cures suchdefault. All rights or remedies of an aggrieved Party under this
Agreement in connection with a Default under this Agreementby another Party shall be
cumulative and non-exclusive. The failure of any aggrieved Party to enforce any covenant,
condition, restriction or 'provision contained in this Agreement shall in no event be deemed to be
a waiver of the right thereafter to do SQ, nor of the right to enforce any other covenant, condition,
restriction or provision set forth in this Agreement, A Party shall be considered to have waived
any rights hereunder only to the extent that such waiver is in writing. Notwithstanding any
contrary provision of this Section 10.2, no Party shall have the right to terminate this Agreement
as a result of a Default hereunder and each Party waives any right under law, equity or otherwise
to terminate this' Agreelllent or to terminate any of the easements set forth herein.
10.3, ForceMajeure~
Each Party shall be excused from performing any
obligation provided 4I this Agreement, except any obligation to pay money (unless' such payment
is conditioned upon performance of an obligation or undertaking excused by this Section 10.3),
during any period during which the performance of such obligation is prevented or delayed, by
(a) an act of God, fire, earthquake, flood, explosion, .action of thl,e elements; war; invasion,
insurrection, riot, mob violence, sabotage, orinability to procure or general shortageof labor,
equipment, facilities, materials or supplies in the ()r~ary course onthe open market; {b}failure
of'normal transportation, strike.Jockeut, or actionof Iaber unions; (c) condemnation, requisition
or order of govemment;.:dor ciyjl or II1iJitary autltoritie~; or (d) any other siJTliJarcause not: within
the, reasonable cOIJ.f;rolof such Party (finaneial abilityOr negIigenceexcepred).
AParty shall give
notice of any such delay to the other-Partypromptlyupon
obtainingactual knowlegge of the
.occurrence of the event with respect to which such Party intends to claim such a permitted delay
.hereunder. Notwithstanding,any contrary provision hereof, Facility OWner shall baveno
obligation to acceptibfluent from th~ User Properties tlUitdoesnot'coinply with:the r~e1l1,ei:1ts
Sections 2.1 and 2'.2 oftb,is Agreemenh'eg~dless
of the cause of suchnon-eomplianee
(mcludin~any cause descnoed In this Section i0.3) 'and the proViSions ofSectianZ.4 of this
Agreemep.t.sha.llbeapplicable
to such J:!,oncompliant influent regardless of the cause of the
• noncompliance (including any cause described ill this 'Seetionl 0.3).
of
10.4 SeH.•Helij Bi2hts.· If(a) a party tQ t4iS Ag:teement commitS a·'DefauTtof
its ob1igati~ns under Articles 2; 3; 401'7 oft:his Agreemen~ and (b) such Default bas a material
adverse effect onth(3 operation of any other porti()D.of the Property, User Facilities or.F'a,cility
-owned by the aggrieved Party, or otherwise endangers health or the environment, then in
addition to any other rights or remedies that an aggrieved party has under thi~ Agreement, such
aggrieved Party sbaU:have the 'right toexercise theJle1f~heJp rights set foith in this Section Ubt
·wlt1l respecttosuch Default. If after satiSfaction Of the conditlens set forth in clauses (a) and (b)
above an aggrieved 'Party intellds to extrciSeitsseif-help
rightsunder tbisSectionlO.4, then··
such Party shall first notify the, breaching Party.and other Patties .to this Agreement in writing of
sUch intent. If withiil five (5)"businesS'days after such written. notice the breaching party fails to
·commence the cure o:fthe Default and to thereafter @.igen.tIy prosecute such cure to completion,
·then the aggrieved Party shall have the right (but not the ,obligation) to take such action as is
1012017.8
20
reasonably necessary and appropriate under the circumstances
obligations.
to perform the breaching Party's
Notwithstanding the foregoing provisions of this Section 10.4, if (i) an emergency circumstance
or condition arises that constitutes a breach by a Party of its obligations under Articles 2, 3, 4 or
7 of this Agreement, (ii) such emergency circumstance or condition would satisfy the
requirements of clauses (a) and (b) of'thisSectioa
lOA if the breach was not cured after written
notice to the breaching Party and the expiration of the cure period set forth in Section 10.1
above, and (iii) such emergency circumstance or condition is then causing material harm, or
threatens to cause imminent material harm, to an aggrieved Party's Property or the operation
..thereof, then the aggrieved Party sball have the right to exercise the self-help rights Set forth in
t1;lisSection 10.4 with respect to such emergency circumstance or condition in accordance with
the provisions of this paragraph notwithstanding that the circumstance or conditioIidoes not then
constitute a DefaUIt under this Agreement. Asac()ndition to the exercise of self-help rights
under this: paragraph in the event of such an emergency; the aggrieved Party sball fust be
required to notify the breaching Party of the emergen,qyby telephonic commlplication and
written facsimile confirmation (an "Emergency Self-Belp Notice"). An Emergency Self-Help
Notice shall inform the aggrieved Party of the circumstance or condition requiringjmmediate
action by the breachingParty and the aggrievedP&ny's intent to exercise its self-help rights
under thiss;ectioll, 10.4 if the breaching Party fails to take immediate action. to commence the
cure of the breach. If the breaching Party fails to take action tocoJl]I)leneeth~ cqr~ of the breach
withiil 2,4.hours .after the Emergency Self-Help Notice, ..then t1).eaggrieved' Pa{ty ~haIl thereafteI:
have theright to exercise its self-rights under this Section lOA with respect to such emergency
circumstance or condition.
.
.
.An.y acti()~ taken or work p,eITorm~d,by an:aggrieve~rparty onbehalf of a bx:ea;cmng,party under
this Section 1O,Ashall be performed in a good and worlcnianlllCe manner, incOilfonnance with
~dllStry stan~ds, and-in.eorapliance with all Applicable Laws. No Party s1ulU have the rigllt to.
take any action or perf'onn any work on a breaching Party's behalf if such action or work-is
J;'easonaP1y·eipected to have' amateijaI adverse' effect on tIle rights orProperty {)f anY other nonbreacbing ;Party.·
..
..
....
..
....
.
..
.
If a Party Ulkes action
pesfonns work on.behalf'of a breaching PartyputSuant to this Section
" 10,4Md sUcn,actiC)nor workwas in fact req~to
be Peno:Ql\edby the breaclting Party, then
the breaohing party ~Teinlburse
the aggrieve4 party for~e reasonable out-Qf-pQcket costs
and exi;ensesincurred by tbeaggrie-ve4'PartY it! taking' such action otperfonning such work. If
the breacbjng;party fails ~ reimburse anaggn~ved'PartY for-such costs and eX.penS~witbin
thirty (30) days after receipt-of a reasonably particularized invoice from such aggrieved Party,
tben,theaggrieved PartY ~
be entitled to offset the amount owed by the bfeaching'Party
against; the next payments requjred to be made by b~cbing party to the aggrieved )?,artyUJldet
this.Agreement.until tOe1,lU.paiciamount is fully applied or otherwise paid It; however~ within
. .thirty (SO) daysatIet receipt of suCh IDvQieea breacmngparty in goodfaithdeliveI$ to such
aggrieved-Party a,written objectiontothe;paymen~
of suCh'in.voic~, setiUJ,gfo:J;t1;L
with reasonable
.partiCularity the reasons for its claim that, the subjmaction
was not required to be taken'bytbe.'
breaching Party pursuant to the terms oftlris A~ent
and/or thatthe charges are excessive (in
which case.the breaching Pluty shall pay the amount it contends is not eir-cesrive), then, the
aggrieved Party shall not be entitled tot1J.eforegQingoffse~ but as the aggrieved Party'ssole
1012017.&
Of
21
remedy, the aggrieved Party may institute a legal proceeding against the breaching Party to
collect the subject amount. This Section lOA shall not limit or restrictthe exercise by Facility
Owner of any other rights of access to the User Properties that Facility Owner may have under
other provisions of this Agreement to make inspections, perform work or take other action in
accordance with the terms of this Agreement.
11.
Easements.
11.1
Owner User Easements. . Facility Owner grants to each Owner User a
non-exclusive easement appurtenant and right of en,try in, on, over, under, acrossandthrough
the
Facility Property during the Term of this Agreement for the benefit of each User Property for the
purpose of the exercise by each such Owner User ofitsself-help rights under Section 10.4 above.
Each such easement shall be an. interest in real property !pat is enforceable separate 'and apart
from the executory obligations of Facility Owner under this Agreement.
"
11.2 Facility Owner.Basements,
Each. Owner User grants to Facility Owner
non-exclusive easements aplnntenmitand a right of entry in, on, over, under., across and tbrou:gh
each User Property during the Term oftbi.s Agreement for the ~e:J]:efitof the Facility Propertji for
the-purpose ()fthe exercise by Facility Owner of its self~help rights under Section 1004 above and
f{)f the exercise by Facilfty Owner, of any other rights ofFaciljty Owner under this Agreement
'that require access to the User Properties. Such easements shall be interests in teal property that
are' enforceable separate and, apart from the executory Qbligationsof each Owner User under-this
Agreement.
.
.
11.3 Other Owner User Easements. ,Any Owner User that.owasaUser
Propelty on.whieh User Facilities are located tbatsersecther-User
Properties (e.g., the User
Facilities located on the ShQPping Center Property that serve the East'Shopping'Centei Property)
grants
each such other Owner User a IiQn-:cxelusive easement appurtenant and righ~ of ephy
.in, 01;1, .over, under, across an4 t;Ju-oughthe grantor's User Property dlrring the Tenn -,ofthis
Agreement for the benefit of the grantee User Property for the flow of influent ~om the-grantee
User Property~ and for the purpose of the exercise by each such granteeOwnetUseI'o.fits
self~
, help rights under Section 1Q.4 above. Each such easement shall be an interest in real prOperty
tmit is enforceable separate arid apart frOI;nthe executorY obUgations QftheParties 'under this
Agreement. Each Owner Usershall have the rigb.~to relocate the easements andassociated User
Facilities described DUbis Seetion 11.3 and Section B.2 above that arelotatoo on its User
Property, provided that (a) any sucIj,reiocatiQn shall be at.the sole costend-expease of'such
. .'Owner User; (b) no such relocation shallresult in any curtailment or interruption in service under
this Agreement, except for anytempoTal¥ interruption that does not have 3, :JllateriIUadverse
effect upon the othel:'Parties to thiS Agreement; and (alD.o Such relocation shall (i) have.a
material adverse :effectupont1l.e operation of the User Fapilitiesor the Facility,
the rights.or
.'obligatio AS of the other Parties to this Agretnnent, Of (ii) increase the costs or expenses of any
other Partyunder this Agreement
to
or
.
12.
Right of Facilig OWner to Modify or Relocate the Facility. At-the option of
, Facility Owner, Faeiiity' Owner shalIbave the right: (bUt not'the obligation) during the Term of
thiS Agreement to moqify~ expand 'or relocate the F~ility~or portions thereof Any such
. relocation may be to other areas of the, property on which the Facility is located andior to other
1I1l2017.8
22
property located outside of the Facility Property. If any such modification or relocation is
necessary in order to comply with Applicable Laws, accommodate the volume of influent
received by the Facility Property from the User Properties" or otherwise comply with the terms
and provisions of this Agreement, then alkcosts.and expenses incurred by Facility Owner in
connection with such modification, expansion or relocation shall' be included as a Facility Cost
(subject to amortization in accordance with the provisions of Section 9.1.5 to the extent anysuch
cost is a Capital Expense). If such modification, expansion or relocation is not necessary to
comply with Applicable Laws, accommodate the volume of influent received by the Facility
Property from the User Properties, or otherwisecQmply with the terms and provisions of this
Agreement (e.g., an election by Facility Owner to relocate the Facility in order to use the Facility
Property for another purpose), then Facility Owner shall be responsible for all costs and expenses
to perform such modification, expansion or relocation, which costs and expenses shall not be
included as a Facility Cost. Any modification, expansion or relocation of the Facility .pursuant to
. this Article 12 shall be performed in such a manner so as to minimize any interruption Or
curtailment in the wastewater services to be provided by Facility Owner under this Agreement,
13.
Term C)f Agreement. The term of this Agreement(the i~Term"}shalh:ommence
on the EffectiveDate and shall continue until this Agreement is terminated in accordance with
the provisions oftbis Article 13.
'l'ermin~tion
13~1 Potential Te~~tionEvents.
The following shallconstitute
''Potential
Events":
n.l.i if at anytiinethe right of the Facility to continue.to perfQrrn.the
wastewater services described.in this A~emeut
in accordance With Applioable Law
is terminated due ro the expirationottermination
of the required permits orauthotity
under Appljca.ple Law anc,i'sllch,peinrlts or amborityqannotreasonably
b~ renewed,'
replaced or otherwise restored within ninety (90) days after the expiration or
termination t;J1ereof;.or
.
.
.
.
13.,1.2 if at any time an. Applicable Law is enacted ot otherwise imposed
upon the Facility th,atwill require the eXpenditure by Facility OWner of'Capital
. EJ(penses ofl1lore than One Million Dollars ($I,OOO,OOO~OO) for new or additional
Unlirovements, al~rations,or upgrades to the :FacilitY in order to comply with the
requirementa of Such .App1icableLaw~ uuIess'theOwn,er Users: ( or one ·or'mQre.of
them) agree to fund the entireamQunt of S1;lcij,capital Expenses in excess of One
Million Dollars ($1 ,OOO~OQ();OO)prior to the fuild.iJlgby Facility Owner of any such
Capital Expenses; or
13.1.3 .'if at ~y time public sewer or other public Wa8tewatertteatment
services becomeavailable for use ,by a User Property to replace tl1,ewastewater
.services to be provided' by.'FaciIity OWner under this Agreement.
13.2 Exercise ofTerniination Rights Based on Section!].!.1. AnyPmty
Shall have the right to terminate this Agreemenfbased on' aPoteatial Tenrunanon Event
described in Section 13. L 1, subjectto and in accordance withjheprovisions
of tbjs Section 13.2.
AB acondition to the exercise of any right oftennination
I0120J,7.8
23
based on
a:Potential
Termination Event
'-
described in Section 13.1.1, one of the Parties must first deliver to the other Parties a written
notice (a ''Potential Termination Event Notiee") of the occurrence of such Potential
Termination Event. After delivery of a Potential Termination Event Notice based on Section
13. I. I, any Party shall have the right to terminate this Agreement by delivery of a notice of
termination (a ''Termination Notice'') within sixty (60)days after receipt of the foregoing
Potential1ermination
Event Notice. Ifno Party delivers a Termination Notice within such sixty
(60) day period, then no Party shall have the right to terminate this Agreement with respect to the
Potential Termination Event described in the Potential Termination Event Notice. If a
Termination Notice is delivered by Facility Owner or all Owner Users, then the Agreement shall
terminate as to.all'Parties and the entire Property. If Facility Owner does not deliver a
Termination Notice, and one or more, but notall, of the Owner Users deliver a Tennination
Notice, then this Agreement shall terminate as to each Owner User that delivered a Termination
Notice, If this .,AgreemeIit.is terminated as to one Ormore, but not alI, of the Owner Users, then
for an additional thirty (30). day period after the foregoing sixty (60) day.periQd, any remaining
Party (including, without Jimitatiott;Facility Owner) shall have the right, but not.the obligation,
to deliver a Termination Notice. No Party shall have any further right to deliver a Termination
Notice after SucI1.additional thitty (30) day period. If Facility Owner does not deliver a
Termination Notice and the Agreement is terminated withr~ect
to only one or more, but not
all, of the Owner Users, then the Agreement shall: remllin in effect between. Facility Owner and
the re~g>OwnerUser(s).
The effective date of ate~atio~
(the "Terminatlon Date")
.under this.Sectton 13.2 shallbe onehundred twenty (120) days after the date of'thefirst
Termination Noticeissued in connection with a particular Potential Termination Event.
·13.3:Exercise
of Termination Rights Based on Section 13.1.2. facility
.Owner shall be the.omy P~ 'With the right to terminate this Agreeni.entb~ed on a Potential
Termination' EveJitdeSCn"bed in Section '13.1.2. If'at any ~e an Applicable Law is enacted or .
otherwise nnposed·upontheFl:!Cillty that will requirethe expenditure by Facility Owner ofmore
than: One Million Dollars ($l,OOO~OOO)ofCapitali Expenses for new or additional iinprovelllents.
alterations onlpgradeSto·t1le'Facility
in order to comply with the~ts
of$Qch
Applicable Law, tb\3n facility Owner shall n~ve tile right to deliver a written request to the
.bwnerUs.ers to furip.theamount,of S1.icl1requiredC3.pital Expenses in excess of'One M.'illion
Dollars. ($l;OOO~O()(M)O)(the "Exte~ Capital EXpenses") prior to the funding by Facility Owner
or any such Capital Expenses. if within. thirty (30) days of such request Facility Owner.does not
receive the Written meement fh'>:Ql one or 1l;I.0reofthe owner Users to collectively fun.dall of
.the Excess capital Expens~ (ot after receipt of such Written agreement an Owner User breac@s
its obligation to {UIlJ:l SuchEx~s CapitalExpeIises and. such breach is not cured by $Uch Owner
User Of anotherOwnen User within thirty (30) days aftctwritten notice to all Owner USen! of
Such breach), then withiI1 sixty (60) days aftertheend'ofsuchtbirty
(30) day perio~,Facility
Owner s~have
the·right,but not the' obligation; to deliver a Termil1ation Notice. If Facility
Ownex delivers a Termination NotiCe, then this Agieement shall tenninateWith respectto all
Partieseffective as Qf a Termination Datetbat is ninety (90) &18 after the date of Facility
Owner's Tennination Notice. If this .Agreement is not tenninated and the ~xces~ ~pitaJ
Expenses, or.anyportion thereof, are funded by the Owner Useraon a dispropom~e
basis
(i.e., on:other than a troporti~
Share basis )~then any Owner User fiulding more.than its
Proportionate Share ofthe ExCeSS CapitalExpenses shall be entitled to reimbursement of such
disproportionate share from the Owner Users funding less than their PrQportion1tteShare, such
thatall Owner Users shaTethe Excess Capital.Bxpenses :ti:indedby the Owner Users ona
1012011.8
24
.
~
Proportionate Share basis. Any amounts required to be reimbursed by one Owner User to
another Owner User under this Section 13.3 may, at the election of the reimbursing Owner User,
be paid on an amortized basis in the same manner.as Capital Expenses are amortized under
Section 9 J.5 of this Agreement
.
13.4 Exercise of Termination Rights Based on Section 13.1.3. The only
Parties who have aright of termination with respect to a Potential 'Termination Event described
in Section 13.1.3 shall be the Facility Owneror an Owner User of a User Property as to which
Section 13.1.3 is applicable. Any termination by anysuch Owner User shall beappIicable only
to the User Property of the terminating Owner User, and any termination by Facility Owner, shall
be applicable only to those User Properties as to which Section 13.13 Is applicable. As a
condition to the exercise of any right of termination baseden a Potential Tenninatien Event
described ill Section 13.1.3, one of the Parties must fuSt deliver to the other Parties a Potential
Terminatioa EventNotice. After-deliverY of.a Potential Tennina,tioJ;l.Event Notice, any Party
with a tenniriationright underSection
13. t3 shall have the right to terminate this Agreement by
delivery of a Termination Notice. Such Tertninat;ion Notice may be delivered-at ~y time after
the Potential Termination Event Notice, without limitation as to time of delivery, If a
termination based on-Section 13.1.3 is applicable to only one or more, but not all, of:fbe User
Properties~then the AgreemeJ;l.tshall remain in effect between.Facjlity Owner and:.the remaining
Owner User(s). The Termination Date under this Section 13.4 shall be ninety (90) days .aftet the
Termination Notice.
..
....
13.5 Effe~tof Terl))matio~. If this Agreement is terminated pursuant to tb,e
provisions of this ArticleB, then effective OJ) the Ten:nination pate the party orParties as to
wb,oni this Agreementi$~:oi!jiJated .shall have no further rights or obligations tinder this.
Agreem~nt accruing after the Termination Date, except that:
...
13..5.1 a Party as to whom tbisAgreein:ent is tenninated shall be
responsible for'theperfonnance
of all obljgatiQ~ and liabilities of such Party under
this Agreement that arise during or otherWise pertaintoperiodsprior
to the .
Terini:llation'D~e;
.
as 'to whom
1'3.5.2 a termination of this Agreement shall not release or relieve a Part:y
this Agreement is terminated
any obligation OJ; liability qnderthis
from
Agreement that e~ressly'
..
survives
the termination·Oftllis Agreement;
.
l3.5.3 if the termination is applicable to one or more, put, not all, of the
User Properties, and any of the tetn:liJ1atedUser Properties contain
Facilities that
serve a nOll-termiriatedUser ProPertY (e.g., if the ~ent
is terminated With
respectto the Shopping CeIitetPt<>PertY but not terminated as to the East Shoppmg
Center ProPl4o/),.thentheeasementgtantedby
the OWner User of the tern:Jmated
User Ptoperty under Section lL3 abovefortb:e flow of the Iafluenrof'the non.
tenninatedUser Property over such te~~
User;:Pioperty ~
continue in full
force and effect fur so long as the nOD::'temriDatedUser Propertyconti.:nues to USethe
affected User Fa,cili1;i~~;an4 tlI~~pe of~
easement shall the~l:lfter include the
iightof the' OWner User of the non-tetminatedl,JserProperty
to operate, maintain;
repair,teplaceand up~de the assO(tiated User FacilitieS on.theterminated User
user
10~2017.8
25
Property as necessary for the continued use by the non-terminated Owner User of
such User Facilities for the purposes described in this Agreement; the terminated
Owner User shall have the same rights to thereafter relocate such easement and the
associated User Facilities as set forth in Section 11.3 above; and
13.5.4 'tb:etermination of'this Agreement shall not relieve (a) a
terminated Owner User of the obligation to pay Facility Owner its Proportionate
Share of the then outstanding unamortized balances, of Facility Upgrade Costs and
Capital Expenses that were incurred (or irrevocably committed to be incurred) prior
to the Tertnination Notice pertaining to the terminated Owner User. or (b) Shopping
Center.Owner of its obligation to -pay Facility Owner the then outstanding
unamortized balance ofthe User Facilities Upgrade Costs for which it is liable under
Section 3.3 above. Each terminated OwnerUser'sProportionate
Share ofsucb
outstanding unamortized balances of Facility Upgrade Costs and Capital Expenses
shall be due and payable in full by each suchtertnlnated Owner User on or before the
TenninatiQn Date. and. at the election of Facility Owner, the. full payment there .Qfby
aten;ninated Owner User shall be a condition to the effectiveness of the termination
of this Agreement as to such Owner User. The obligation of a terminated Owner
User under this Section 13.5.4 shall survive thetermination Qfthi$Agreem.ent
No:twithst~ding the foregoing provisio~ ofthis Sectif)Il.13.5.4. iftbis Agreement is
. terIIrinatedasto an:Owner User pursuant to a Terminatkm Notiee (}elivered by
Facmty owner based On Section 13.1.3 and the use of the public facilities described
in Section 13.1.3 'by such terminated OwnerUser would have been elective (as
opposed to required) under Applicable Law, then such terminated Owner User shall
have the right to o:ffi;etagainstthe rem.~g
,amouu1;sofFlicility Upgrade Cost,
CapiWExpebse and'User Facility Upgrade Costs required to be paid .by such Owner
User the amounr of My sew~ hook-up feepayable by ~
Owner User (orits User
Property to initiate the Bllblic services, that were the basis for the tenntaatlon,
13.6
'l:'ransfer o:rFac~!yPropertyand
Facility to Shopping
Center
OwDe~;
At anytime during the Term of this Agreement, .Facility OWnet'sbaD have the' ri8h~ to elect to
transfer the Facility Property and Fa9i1ity to Shoppixlg Center Owner on sixty (60) 4ays prior .
Written noticeto Shopping' Center Owner (a~'Transf.erNotice") .. If Facility Owner,e~erCiseS its .
right to ti'ansferthe Facility Property and tp.e Facility to Shopping Center-~t
to this Section
13.6, then Stich trab$fer shall be consumitiatedsWy (60) days foUpwUlg the, date of the Transfer .
. No~ce. Such _rer
stuUl be consummated by Ca) a gtlmt deed to.t!ie Facility Propeityand
facility~ executed ,and delivered by Facility Owner in favor ofShoppingcen.ter
Owner. (b) ~(Qi1,I
of sale for any portion of the Fa<tility th~t constitutes personal property,e~ecutedand
delivered
'by'Facility Owner in favor of Shopping Center Owner, (c) anassigmnent andassumption ofall
. licenses, permits, contracts' and other intangible property pertainirtg tQ.the oWnership or operation
of the Facility Prope:tty' and Facility, .ex,ectited and delivered·by FaCility Owner and Sh,opping
Center Owner, and (d) '8IlY such additional ~fer
documents as nm,y be J;easpnably neeessary to
effectuate the transfer-of tlleFacility Property and FacilitY to ShoppingCentet Owner and ~
assumption by Shopping Center Owner of all obligati()I)S and Iiabilities'pettainin.g to the .
.
.ownership and eperation.of'the Facility Properly and Facility8risingfitnn
and ·after the date of
such traasfer,
.
. 10.12017.8
26
!
·i
The Facility Property and Facility shall be transferred to Shopping Center Owner
pursuant to this Section 13.6 in their then "as-is" condition, with all faults, provided that the
foregoing shall not relieve Facility Owner of its obligation to comply With the terms and
provision of this Agreement applicable to Facility Owner for periods prior. to the date of the
transfer. The Facility Property and Facility shall be transferred to Shopping Center Owner free
'of any and all monetary liens (other than nondelinquent real estate taxes) and free of any
obligation on the part of the Facility Owner to provide wastewater or other services to any
-Persons or other property, other than the portions oftIle Property that are then subject to this
Agreement. Upon such transfer, the transfereeshall'be deemed to have assumed all obligations
of the Facility Owner under this Agreement arising from and after the date of the transfer, and
the transferor shall be relieved and released from all further obligations, duties and liabilities
under this Agreement accruing after the date of such transfer, all in accordance with the
provision of Section 16 of this Agreement. The transferor shall retain alllialJility pertaining to
the period of its ownershipandopera.ubD
of tile Facili!:yProperty and Facility prior to,the date of
the transfer, including the Facility Owner's obligatiens under this Agreement for such period,
If Facility Owner elects to transfer the Facility Property and Facility to Shopping
Center Owner pursuantto this, Section 13.6, then the payment by Shopping Center Owner of any
then remaining unamortized balance of Shopping Center Owner's share of Facility Upgrade
,Costs" Capital Expenses and User facilities Upgrade Costs shall be modified in accordance with
the following: (a) concurrent with the transfer of the Facility PropertY and Facility to Shopping
Center Owner, Shopping Center Owner shal] pay to Facility Owner the then rem$iIlg
,
unamortized balance of the Shopping Center Owner's share of Facility Upgrade Costs, Capital ,
Expenses and User Facilities Upgrade Costs on Ii lump sum.basis, m> to $250,,000, aad (b }.any
.remaiIiingunamQrtiZedbalanceoftheShoppingCenterOWn.et~s
Share of Facility Upgrade
Costs, Capital Expep.ses and.User Facilities Upgrade Costs iIi excess of $250~OOOshall.ceatinue
'to be paid by Shopping Center Owner on an aniortiZedbasis m.accordaace Witbthe'ptoviSjolis Of
Section3.2,' 3.3 and 9. 1 {with no change in the amount of the monthly payment)" except that if,
theremaining period of amortization is more-than four (4}years, then the amortizationscheduIe
for the remaining balance s:hall be adjUSted sucll,that the remaining balance is fully amortized
over a four (4) y~ period from. the date of the tratlsfer.
.
.~
The immediately preceding paragni,phshall not be applicable to the Owner Users
of the Coldwell Banker Property or East Shopping ~r
Property, each of whom shall continue
,to pay the' transferor the Facility UpgJ:ade:AJp()~tion Amoimts an4 'Capital EXpense
Amortization Amounts required to bepA;id by aUch Parties.under thisAgre~ent
for Facility
Upgrade Costs and Capital Expen.sesincurred by the fraDsferoiprioi to thetransfer, ,The
tranSferee shall have no int~~ in such retQ~in,ng.FacilitylJpgradeAmortiza~()n
Amounts and,
Gapital Expense Amortization AmoUnts required to be paid by the Owner Users Of the Coldwell
Banker Property and East Shopping Center Property, but the transferee shall cooperate Wit:b,the
ttanSferor'seff'orts tocollects1;lch aD1oUnt$. Notwithstanding the foregoing, 'if the OwnerUser of '
the ShQPping Center Property. and the,East Shopping Center 'Property are the same entity or
'
affilia~dentities,
then the ~ediate~y
preceding paragraph shall be applicable to the OWner'
User of the East Shopping Center PtQperty in the same manneras it is applicable to the Sh,opping
.Ceater Owner, except that the $750,000 tI1reshbldset forth above shallbe calculatedon an
aggregate basis as to .the ShoppingCenter'Ptoperty
and the East Shopping Center Property
lOl2,Ol7:S
27
Notwithstanding' any contrary provisionheteof, Facility Owner shall have no right
to deliver a Transfer Notice to Shopping Center Owner at any time after either Facility Owner or
Shopping Center-Owner has delivered a Termination Notice pursuant to this Article 13 that will
result in the termination ofthis Agreement as to the Shopping Center. Moreover, no delivery by
any Party of'a Termination Notice under this Article 13 after the delivery by Facility OWner of a
Transfer Notice under this Section 13.6 shall affect the consummation of the transfer of the
Facility Property and Facility to Shopping Center Owner pursuant to such Transfer Notice. The
parties rights and obligations underthis Section 13.6 shall survive the termination of this
Agreement.
14.
Rights of Lenders.
·14.1
Priority
of Lien of Mortgage.
This Agreement shall be and.remain
seniorin priority to all Mortgages hereafter executed Upon the Property or.anyportion thereof;
provided, however, that no breach ofthe covenants, 'conditions or restrictions herein contained
shall affect, impair, defeat or render invalid the lien, charge or priority of any Mortgage made in
good faith and for value which encumbers any portion of the PropertY~ Any Mortgagee Or other
future owner whose title to any portion of'theProperty is derivedthrough foreclosure, trustee's
sale, or deed in lieu of foreclosure, ..shall take titleto such portion of the Property subject to, and
shall be bound by, all the covenants, c,onditions and restrictions set (orthiIfthis ,Agreement.
14.2:i\{oticeof
Default. Each Mortgagee, upon delivery of a written request
for such notification to theQther'Parti~,shall
be entitled:to'written notifiQationofany breach in
the performance of the obligationS Under this Agreement of the Partywithrespeet to which such
Mortgagee holds a Mortgage. Such Mortg~~sb.a1l,thereafter
have the right to cl,lte such default
on behalf of the.Party who is the owner of the portion of the Property encumbered by the
Mortgage during the samecure period as applicable to: such Party" but such cure period ShaHin
lJ.O event be less than ~
(30) days after delivery of such notice of breach to the Mortgagee.
143CilringDefaults.
Exceptas otJ,.erwiseptovidedherem,aMortgag~
or
the inunediate transferee of such Mortga.gee, who acquires title, by judicial fO~9IoSuJ;e, a deed in
lieu of'foreclosure, tn.:.I$tee sale, or otbeiwise, shall not beobligated to cure any breach of the
provisions oftbis Agreelllentwhich occurredbefore such ~Qrtgagee or transferee ~~
title
.if (a) such breach is J1.qll¢urableox of.a type which is.uot feasible to cure, and (b) such Mortgagee
did not have notice ofSuQh a breach at the time itacqUrred'its lien or seCllPtJ inter~t in the .
Property.
14.4 Conflicts. In the event of any conflict between any of the provisions of
thisArticle 14 and any of the other provisions of this Agreement, the provisions of this Article
14 shall control.
.
1012017.8
28
IS.
Arbitration.
15.1 Agreement to Arbitrate. Any controversy or claim-arising out of or
relating to this Agreement, Of-the breach or alleged breach hereof> shall upon demand of any
Party be submitted to arbitration in the manner hereinafter provided. The Parties shall make
every reasonable effort to resolve any such controversy orclaim without resort to arbitration. In
the event the Parties are unable to effect a satisfactory resolution, such controversy shall be
submitted to arbitration in accordance with theterms and provisions of this Article 15 and in
accordance with the then current Commercial Arbitration Rules (the "Rnles") of the American
Arbitration Association (or any successor organization) (the "AAA"). Any such arbitration shall'
take place in Los Angeles, California and shallbe administered by the AAA.. In the event of any
conflict betweeri the terms and provisions of this Article 15 and the Rules, the-terms and
provisions of this Article '15 shall prevail.
15.2 SubDlission t1),Ar,bitratioJi. A Party desiring to submit toarbitration any
such controversyshallsend
a Written arbitration demand to the AAA and to the opposing Party
or Parties. The demand shall set forth a clear and complete statementofthe nature
the claim,
its basis, and the remedy sought, Including the: amount of damages, ifany. Any opposingParty
may, within thirty days of receiving the arhitratien demand, assert a counterclaim and/or set-oft
The counterclaim or set-off; which shallbe sent to the AA.A and the opposing Party, shall
include .a clearand complete statement of the nature of the c01W-terclaiInor set-Q~ its basis, 'and
the remedy sought; including the amount of damages, if any,
'
or
15.3 Selection of Arbitration PaneL The~:;pute~llJe
decided bya'panel
of three neutral arbitratQn;seleriteaas follows; The MA shall submitto th.eparties,within tan
(10) days ~r receipt of any arbitration demand, a I'ist of II potential arbitrators consisting ()f.
retired federal or state courtjudges; provided that none of'thepotential arbitrators shall have (or'
have ever had). $y material affiliation of any k;ind with either PartY., Each Party shall, wit;biiJ.
five days, stJ;ikefour,thi-ee, two, one or' none of the arbitriltots. rank-the renuUning arbitrators in
order of prefe~nce(with "1" designating' themQst prefeITe~ .~ ••the next most pi¢fel1"ed and so
f011h)andso advise the AM in Writing. The AAA sbaU appoint tb,~arbitratorsWith the best
combined preference I'3Iilcil:lgonboth lists and -d~gtUlte the most preferred arbitrator:as
presiding officer' (in each case, selecting bylot, if necessaIy,'in the event ofa tie).
1504 Prehaaring Discoven. There. shall be Jio,p:rehe~g c;1iscoveIYexcept as
set forth in this Section 1504. Subject to the amhority of the ,presiding officer ofthearbitratiQij.
panel to modifY the provisiQ]j,softhis Sectiqn 1';.4 b~fore the arbiQ,1itionhearing upon a showing
.-of exceptional ciroumstaaeeaeacl» Party (a) .shall propound:tothe other no ,n10retIum twenty
(~O) requests for production of docUineIlts, including ~QpaJ1s" and (b) ~1iaIitake no mote than.
two discovery depositions. Such discovery shall be conducted in aceerdance wi1h:the provisions
and procedures of theIfedera} Rll1~()f o-n Procedure; 'No interrogatories or requests for
admission shall be p~ed..
Disputes concerning dlscoverY obligationsor protection of
discovery materialssb.a1lbedete~ed
by the presiding of;ficeror the In"bimitioIlpanel. The
foregoiIlglimitatioDs shall notbe deemed to limit a Part¥'s right toS1ibppena w,it;n.essesor the
preduetio» o-fdOCllmeJ,1~ at the arbitration heartng, .norto limit a Party's right. to depose
witn,essei;'thatare' not sUbject to subpoenaro teStify in person.at theaibitration heating; provided,
however, that the 'presidiDgofficer of the arbjtration panel may, upon motioa, place reasonable
1012017.8
29
limits upon the number and length of such testimonial depositions.
15.5 Arbitration Hearing. The presiding officer of the arbitration panel shall
designate the place and time of the hearing. The hearing shall be scheduled to begin within
ninety (90) days after the filing of the arbitration demand (unless extended by the arbitration
panel on a showing of exceptional circumstances) and shall be conducted as expeditiously as
possible. In all events, the issues being arbitrated, which shall be limited to thoseIssues
identified in the initial. claim andcounterclaiIn submitted to the arbitration panel pursuant to
Section 15.2, shall be submitted fordecisionwithin
thirty (30) days after the beginning of the
arbitration hearing, At least thirty (30) days prior to the beginning of the arbitrationhearing,
. each; Party shall provide the other Party and the arbitration panel with written notice of the
identity of each witness (other than rebuttal witnesses) it intends to call to testify at:the hearing,
together with a detailed written outline of the substance of the anticipated testimony of each such
witness, The arbitration panel shallnot permit any witness to testify that was not so identified
prior to the hearing mid sballlimit the testimony of each S1.JchWitness to the matters disclosed in
such outline. Subject to the foregoing. the Parties shall have the right to attend the hearing. to be
represented by counsel, to present doctnnentiiry evidence and witnesses. to cross-examine
opposing Witnesses and to SUbpoena witnesses. The Federal Rules of Evidence shalhpply lind
the panel shall determine the competency, relevance, and materiality of evidence as apprppna4:.
The panel shan recognize privileges available ~derapplicableLaw.
,A. stenographic record.shall
be made of the arbitration proceedings.
. .
.. .
15.6 Award. The panel's award shall be made by majority vote of the, panel.
An award in Writing signed by at Ieast.two of the panel's arbitrators ~U set forth tOe panel's
findings of fact and conclusions' of law. The award shallbefiled With the AAA and mailedto
the Parties no later-than lhiJ;ty (30) days after tb,e last day of testimony at the arbi4ation hearing.
The.paneIsh,aIlhave authority to issue any lawful relief that is just and equitable, except punitive ,
.damages. The award shall state that it dissolves and supersedes~y provisioaal.remedies entered
~tto
Section 15.7.
15.7 ProVisional Remedies. ~end,irig the selection of th~ arbitration panel,
upon request ofaParty,the
AAA may appoint a retitedjudgetoserve
as a provisional arbitrator
·io:rtJ1e on any motion for pre1ijnjnfl'Y relief. Any preli.mii4u:yrelief ordered by the provisional
aibitmtormay be .immediately entered in any federillor mate coUltha\TingjlIrisdicti,QP' tli~reof
eventlJ,ough the decisi~n on theun~lyingd.ispute
triay Still be pending. Once cQnstitute~the
arbitration panel may, upon request of a ,Party~ issue a superseding order to modify or reverse
-snob. preliminary relief or may itseJfor4erpreJirninary relief pending afuIl hearing on the merits
oftb.e-undetlying dispute. Any such initiaIorsuperseding
order of preliminary relief may be
ttmneqiatelyentere(Hnany
federal or'state court havingjurisdietion.tbeteofeven
though the
. decision an the undedyirig dispute may still be pending .. Such'reliefmay"be granted by ,the .
appointed arbjtratoror the arbitration panel only after liqtice to and opportunity to be heard by
the opposing Party. Such awards of preliminary relief shaiI be in writing and, if ordered by 8' .
panel of three arbitratonl)must be signeil by at least two {)f the panel raembers,
15.8 Entry OfAward by Court. Themtiitrationpanel'sarbitration
award shall
be final. The Patties agree ~
thatjudgmeIlt~n
the arbitration award.may-be entered
in apy federal Or sta~e court havingjurisdiction'thereof.
'
co~~t
1012017.8
30
15.9 Costs and Attorney's Fees. The prevailing party shall be entitled to
recover its costs and reasonable attorneys' fees, and the Party losing the arbitration shall pay all
expenses and fees of the AAA, all costs of the stenographic record, all expenses of witnesses or
proofs that may have been produced at the direction of the arbitrators, and the fees, costs, and
expenses of the arbitrators. The arbitration panel shall designate the prevailing Party for these
purposes,
16.
Run with Land. Each and (ill of the easements.covenants, conditions and
restrictions set forth in this A.greement shall run with and bind the Property. A.llcovenants,
conditions and restrictions set forth in this Agreement shall be equitable servitudes. All of the
easements, covenants, conditions and restrictions set forth in this Agreement shall benefit and be
binding upon each Party and their respective heirasuccessors
and assigns and shall create
reciprocal rights and obligations, and privity of contract and estate between andamong; the,
Parties and their respective heirs, successors and assigns. Upon the recordation in the Official
Recosdsof'Los Angel~ County of the conveyance of'fee title-to a portion of the Property, the
transferor of such portion of the Property shall thereafter be relieved from allfurther obligations,
dunes and liabilities under this Agreement accruing after the date of such transfer with respect-to
the portion of the Property conveyed, and its transferee shall tbereaftet",be a Party hereunder· as
the transferor's successor and assign withrespect to the Property conveyed and shall be deemed
to have-assumed the obligations underthis Agreemearapplicable
to the Owner User of such
Property. The transferorParty shall provide to all-then current Property owners written notice, of
thetransfer, No lessee, licensee, concessionaire or other person ()J;' entity with any right to.
, occupy any portion of the Property through a PartY shall( a) acquire any rights of a party
hereunder. or (b) .have any right to consent to.or approve anyameadment, modification or
termination of this Agreement.'
,
17.
'Miseellaneous
ProviSiOns. '
17.1 Tenn:ina!ionof8epticSeryices Aw;eement. MBCan~ MaC Coloily
§erVjces~meri.t is hereby tertnfuated and shall be withpu,1:
hereby agree thatthe Septic
further effect
',
17.2 PayJlleJits. ,Sxcept for any;mnounts· reqnired'to be paid by a ~e~:fdue
date .expressly set forth in dris·Awelllent
(e.g., mQntbly inSta.11I;l,l.- ofF~tY Upgrade Costs
or FacilityCos1:s are due and payable on Orbefore the first day of eachcalendal" ltl()nth)~a,ny
amounts required to be paid or reimbursed by one Party to another undertbis A,greement sha1l be
due~tfpayable
within"tbirty (30) days following receipt of'a.written demamlfrom the P;uty
entitled to payment, Any payment-due under this Agreemen1 that is not made by the due date
under this Agreement slWl accrue interest at the Default Rate until-paid, In addition, if a'party
failS to make 'any payitltmtwithin: five ($) tlays after tbe dnedate tlJ.ercof, then, in ~<iditiQnto any
other rights and remedies that-the pay~ may have in connection with such la.tepayment, such '
l!itepayment shall be Slibject toa late fee of five percent (5%) of the amount due; pr-ovided,
however, that such late fee shall not be 'applicagleto thcifii'st late payment by it party during any ,
, twelve (12) month period as ,lpng as 'suchPartymakes the payment within five "(5) days after
written notice from the payee that such paymeiJ.tWilS not'paid.when due.
.1012017.8
3,1
17.3 Constructive Notice and Acceptance. Every person or entity who now
or hereafter owns or acquires any right, title or interest in or to any portion of the Property is and
shall, be conclusively deemed to have consented and agreed to every covenant, condition,
restriction andprovisioncontained
in this Agreement; whether or not any reference to this
Agreement is containedin'the instrument by which such interest is acquired.
17.4 Notices. Except as otherwise expressly provided in this Agreement or
required by law, all notices, consents, requests, demands, approvals, authorizations and :other
communications provided for herein shall. be in writiIigand sbaIl be sentby (a)persona:l delivery,
(b) certified mail, return receipt requested, (c) recognized overnight courier, service, or (d)
facsimile (confirmed by service by one of the other means of service in (a) through (c)·above) to
the intended Party at such Party's address set forth below. AU such notices such be deemed to
have been duly given and to have become effective{i) upon receipt if delivered in person; (ii)
one (1) business day after having been delivered to an ~ courier for overnight dellVery;(iii)
three (3) business days after ha~g been deposited in the United States inailascertified or '
registered m&iJ"returnre,ceipt requested, all fees prepaid, addressed to the ~pplicableaddress(es)
set forth below, Or (iv} upon electronicconfinnationoffacsimiIereceipt
Each Party's address
for notices shall be as follows (subject to change by notice in accordance with the provisions of
this Section 17.4):
If to Facility Owner:
If to OwnetUserof
ShoppingCeilter
Property:
Malibu Bay Company
23705 WestMah)uRoad,SuiteD
:MaJibu, CA 902654658
Attention: David Reznick
Facsimile No:. (jiO)4S~9462
•.2
Ma411u Bay Company
23705 W~tMahl)uRo~d"
Suitep~~
Malib14 CA, 902654658'
Atte~tion: David ~ck
Faesimile No.: (310) 4S6 9462
R
If to Owner: User of
East Shopping
Center Property::
Malibu Bay Company
23705W~ Malih~Road, SuiteD~2
Malibu; CA 90265-4658,
Mention: .Davld Reznick
Fac~imil~·No.: (310) 456-9462
If to Owner User of
1£00 Owner User of
0'
Coldwell Banker
IQl2Q17.&
/
32
Property:
Malibu Bay Company
23705 West Malibu Road, Suite D-2
Malibu, CA 90265-4658
Attention: David:R.eznick
Facsimile No.: (310)456-9462
175
Headingso Articleand section headings used in this Agreement are
inserted for convenience only and are not intended to be a part hereof or in any way to define,
limit or describe the scope and .intent of the particular provisions to which they refer.
17.6 Effect oflnvalidati0llo
Each covenant, eondition.andrestriction
of this
Agreement is intended tobe,an.dshatI be construed as, independent and severable from each
other covenant, condition aadrestriction,
If any' covenant; condition or restriction of this
Agreement isheld tobe ~va1idbya.nycourt,the
invalidity of such covenant, condition or
'restriction shall not affect the validity of'the reJllaiDing covenants, conditions and restrictions
hereof.
17.7 Estoppels. Within thirty (30) <iaYS;following a request in writing by a
Party, the other Party shall execute and deliver to any prospective purchaser or Mortgagee of the
'requesting Party's Property an estoppel certificate cOnfinning, that (i) this Agreem.ent is in full
force and effect, and 1Jas,notbeenrnodifiedof
amended (or Stating any such modificationS or
amenCh:oents),and (ii), to the best knowledge of the certi.:fying Party, there are no.existing uncured
defaults by any Party under this Agreement (or if any defaulteJdsts, a description of the default),
"
l7;8Cum'il1ativeRelDedies.
Each remedy provided for ~ thi$Agreement
shall be cumulative' aadnot exclusive. The failure. to exercise any remedy provided for in this
Agreement shall not constitute a waiver of such remedy or of any oilier remedy provided-herein
or therein.
17.9 Attorneys' Feesl:lndCosts~ Subjectto the ptovisiOIl$ of Article 15, if any
Party shaUbring an action or proceediag [including, without limitatio~ any ctOss-GOIliphUnt,
counter-claim, tbll,-d-party claim otarbitration proceeding) against another Party by reason of'the
alleged breach or violation of any provision hereof: or for the'enfo{CCIXleJ1t
of!1riy provision,
, 'heteof, or to interpret any provision~heteof, or otherwiSe arising out oftbiS: Agreement, the
prevailing Party insucl1 actionl;\f proceeding shall be entitled to its costs and expenses of such
a~Qno:r proceeding, including but not limited to-its actuakreasonable attorneys' fees, wbich
shall be payable by the non-prevailing Party whether Ornot suchacti9n or proCee~g'i$
preseeutedto judgment or award;
.
,
,
to
17.10 AAprovals. In the event tbata Party shan be reqtIeStedin writing
, provide its aPPrQval or eonsenrto a matter described in this Agreeme~ and such Party shall fail'
to respond to such request in writing within thirtY(30J days following any ~chreClUest which
makes. reference to the provisions of this Section 17.1O~then such OWner shalkbe deemed to
have 3ppIoved, or consented to, the matteras tp which,jf$ approval or conseatwas requested, .
.
'17 .11 Amendments."A11y ameiidmellt$ or modifications oftbiS Agr~ent
be made only in a writing.exectrted by allParties;
1012017.8
33
shall
17;12 Construction. The language in aU parts of this Agreement shall in all
cases be construed as a whole and in accordance with.its fair meaning, and shall not be construed
strictly for or against any of the Parties.
17.13 GoverningLaw. This Agreement shall be interpreted and construed
under and pursuant to the laws of the State of California.
17.14 Exhibits. All exhibits attached to this Agreement are incorporated herein
by this reference.
17.15 Third Party Beneficiaries. Except as otherwise expressly setforth
herein, this Agreement is not mfe:nded to henefitany third party.
17.16 Further Assurances. Each Party agreestha; it will, at any tiJ;neand from
time to time, upon the wri:tt~ •.equest of the other Party, 'execute and deliver such further
documents (in recordable form, if appropriate under the circumstances) and do such further acts
and things, as the requesting Party may reasonably request in-order to effect the purposes of this
Agreement,
i012017.8
34
IN WI1NESS
WHEREOF,
the Parties have entered into this Agreement as of the
Effective Date.
MALIBU BAY COMPANY, a Nevada
co~r~on
/J. /Ji'//fD ....
By:r~tt~p-
Name:Ilr'I.((HAetA . E~8JbHT
Its:~l{£ PgBIOEtJI ..
II .
MBC COLONY PLAZA, LLC, a Delaware
limited liability company
By: MBC· Properties, LLC, a Delaware limited .
liability company, its sole member
By: Malibu Bay Company, a Nevada
~menlber
Naml::M1~.
Its: \/IcEfF§tDgllJT
101201"1.8
35
STATE OF CALIFORNIA
)
)
COUNTY OF LOS ANGELES
S8
)
On JIM,UL "2 ~.
, 2005, before me, Etl E"Ut1JAS
, a
Notary Public in and for said State, personally appeared A1id\,{oQ A.' f"lYl'1ttr
,
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument, and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument the person, or the
entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
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Notary Public
EXHIBIT
LEGAL DESCRIPTION
A
OF SHOPPING
CENTER PROPERTY
A PARCEL OF LAND BEING A PART OF THE RANCHO TOPANGA MALIBU SEQUIT,
AS CONFIRMED TPMATtF!EW
KELLER BY PATENT RECORDBDJN BOOK 1PAGE
407, ET SEQ., OF PATENTS, IN THE CITY OF MALIBU, COUNTY OF LOS ANGELES,
StATE OF CALIFORNIA, RECORDS OF SAID COUNTY, PARTICtJl,ARL Y DESClllBED
AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF THE LAND DESCRIBED IN DEEl)
FROM GEORGE E. BARRETt TOLORRAlNE
BUSCH, RJ3CORDED AUGUST 9, 1947, AS
DOCUMENT NO. 799, ll'l BOOK 24850 PAGE 383, IN THE OFFICE OF-THE COUNTY
RECORDER OF SAID COUNTY, SAID SOUTHWEST CORNER BEiNG A POINT IN THE
NORTI:1'ERLY LINE OF THE. 10 FOOT STRIP OF ~
·DESCRIBED IN 'TIlE DEEP
. FROM MARBLEHEAD LAND COMPANY to TIlE STATE OF.CALWORNIA,
RECORDED IN BOQK 16845 PAGE 253, OFFICIALRECORDS
OF SAID COUNTY, 'l'HAT
IS NORTH 6:DEGREES 48,' 45" WEST 50 FEET AND SOUTH 83 DEGREES 11' 15" WEST
1125.00 FEET FROM ENGINEER'S CENTERLINE' STATION 926 PLUS 33.41 ATTHE
EASTERL YEXTREMITY OF THAT CERTAIN CENTER1.lNECOURSE IN THE 80 FOdT
STRIP OF LAND DESCRIBED AS NORTH 83 DEGREES 11' 15" EAST 3983.81 FEET IN
THE DEED FROM T; R. CA])W ALAnE:&, ET AL.;
THE: STATE OF CALIFORNIA.
RECORDED IN BOOK 15228 PAGE 342, OFFICIAL ':RECORDS OF SAID cOiTNTY;
'i'B:E:NCEMONO
WESTERLYLINE
OF THELAND1)EScRmEP
IN SAJD D~DtO
LORRAINE BUSCH, NORTH 6 DEGREES 48' 45" WEST 14L26 FEET; MORE' OR LESS,
TO TIIEWORTHWEsrERL Y CORJ'lEaOFS.tW> l.AST MENnONEQLAND;,TImNCE
·lU\S1BRLY ALONG TEtlRNORTHERLY LINE OF TIm LAlID DBSCRlBED IN sAm·
nEEDtd
LORR.AJ.NEBl:JSCH ANI) ALONG THE BOUNDARY OF THE LAND .
. DESCRmEDIN
DEED TO GEORGE E~ BARRETr, RECORDED .JUNE8~ 1944,·AS
DOCUMEN'tNO. 48 IN BOOK 20892 ,PAGE 395" ,OFFICIAL RECORDS OF aAlD
TO
urn
coUNTY, BBJ:NG THE ARC OF A cuRVE CONCAVE NciR1'HERLY wrra A RADWS
OF 2860 FEET1 A DISTANCE OF 'go FEET, MORE ORLESS, TO AN ANGLE POlNT IN
THBWTBRL
YBOUNIMRYOF
l'IiEI..AND :DESCRIBED iN SAID,DEEI> TO' GEORGE
E: BARRETT· THENCE ALONG SAID EASTERLY BOUNDARY NORm 6 DEGREES 48'
45" WEST 236.49 FEET, MORE ORLESS~ TO THE SOUTHEASTERLY CO~
QFl1IE
PARCEL OF LAND DESCJUBED IN A DEED FROM:MAl(BLEHEAl) LAND COMPANY .
to MYRON I. STUART, RECORDEOINBOOK.20718
PAGE 272, OmOALRECORDS'
OF SAID COUNTY; THENCE SQUTH88 DEGREES'OJ' 03" WEST 580.02 FE~T ALONG
mE SOtiTHERLYLlNE OF ssm LAST MENTIONED PARCELTOi'HE
.
,
SOlJ1HWESTERL Y CORNER THEREOF, S:AJ1) POINT BEING ALSO THE
SOUTHEASTERLY CORNER OF i:lm PARCEL OF ~
DESCRIBED iN A DEED
FROM,MARBLEFlEAD COMPANY TO FRANKR. LYONS, 1S1 AL. RECORDED ~ ~OK
20058 PAGE 215, OFFICIAL ~QORDSOFSAIDCOUNTY;'I'llBNCE FOILOWJNG tHE
SOutHERLY LINE OF' SAID LAsT:MENTIQ!'ffiD,PARCEL, 'NORm 82 DEGREES 53' 05"
WEST, 77133 FEBTTO THESOlJTHWESTERL
Y CORNER THEREOF; THENcE NORTH
i3 'DEGREES 52' 051' WEST 147.98 FEET, MORE ortLESS, ALONG tHEWESTElU. Y
LlNEOF SAID J"AST MENTIoNED PARCEL TOmE SOUTHEASTERLX CORNER OF
.
."
1012017.8
.
:
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,....
_
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37
.~
_.
..
:
.
THE PARCEL OF LAND DESCRIBED IN A DEED FROM MARBLEHEAD LAND
COMPANY TO RAPHAEL W. PUMPELLY, RECORDED IN BOOK 20737 PAGE 227,
OFFICIAL RECORDS OF SAlD COUNTY; THENCE SOUTH 75 DEGREES 41' 35" WEST
656.36 FEET ALONG THE SOUTHERLY. LINE OF SAID LAST MENTIONEP PARCEL
AND THE SOUTHERLY LINE OF THE PARCEL OF LAND DESCRIBED IN A DEED
'
FROM MARBLEHEAD LAND COMPANY TO YETTA C. MANOIL, INC., A
CORPORATION, RECORDED IN BOOK 20688 PAGE 254, OFFICIJ\L RECORDS OF SAID
COUNTY, TO THE BEGINNiNG OF A TANGENT CURVE CONCAVE SOUTHEASTERLY
WITH A RADIDS OF 605.04 FEET; THENCE SOUTIIWESTERLY ALONG TIIE ARC OF
SAID CURVE 256.92FEET; mENCETANGENT
SOUTH 51 DEGREES 21' 4?" WEST
248.94 FEET, MORE OR LESS, TO APOINT IN THE CENTERLINE OF THE 100 FOOT
STRIP OF LAND DESCRIBED AS PARCEL NO. lIN THE DEED FROM MARBLEHEAD
.
LAND COMPANY TO THE STATE.OF CALIFORNIA, RECORDEIJlN BOOK 20743 PAGE
271, OFFICIAL RECORDS OF SAID COUNTY, SAID LASt MENtIoN"EPPOlNf.
BEING
SOUTH 82DBGREES 39'45" EAST 549.85:FEETALONG.g.f\.IDCE~RLINEFROM
ENGINEER'S CEN1'ERLINE STATION 902 PLUS 18.35AT THE NORTHWESTERLY
EXTREMITY OF THE COURSE DESCRIBED IN SAID DEED AS S0U11!'82 DEGREES 36'
10" EAST 2243.93 FEET;TIrnNCE NORTH 82 DEG1{EES 39' 45" WEST 549.85 FEET
ALONG SAlL> cENTERLINE TO THE BEG:INNING OF A TANGENT CURVE 'C01:'JC1\,VE
SOUTHERLYWITIIA
RADWS OF 3000:FEET; tHE:NCENORTHWES~RLY
ALONG
TIfE ARC OF SAID CURVE 100.01 FEET; THENCE SOUTH 27 DEGREES 41' 26" "\\TEST
54.10 FEET,.MORE OR LESS, TO APOlN"t INTHESOlITlIERLY
LINE OF THE 100
FOOT STRlP OF LAND HEREINBEFORE MENTIONED, SAID POINfBEING
nIB MOST
EASTERLY CORNERoF taB PARCEL OF LAND DESCRIBED INDEED TO GEQRGEE ..
BA;RRETT,,:R,ECORDEQ QCTOllER 13, 1944,ASDOCti.MEN'rN6.183clNBQOK.21307
PAGE 326,'OPFICIAL RECORDS OF sf\JP· COUNTY; 'mENCE WESTBRL Y ALONG 'tHE
SOUTHERLY L~
OF SAID 100 FOOT STRW, BEING'I'HE ARC O~"ACURVE
CONCAVE SOU'l'HERLvWITH
A RADIUSOF 2950 FEET IN A RADIAL LINE TO sAID
LAST MENTIONED POOO.BEAlUNGNQRm
5 DEGREES oi:' 46" EAST, A DISTANCE
OF 540.49 )fEEt; 'rllENCE TANG:ijNT SQUTH 84 DEGRBES31' 55'.'WEST4(l.85'WBE1,
.
MORE OR LESS, TO A POINT IN TIm EAsTERLY LINE: OF THE PARCEL OF'LAND
DESCRIBED:iN A DEED FROM MARBLEHEAD LAND·'COMPANY
cLICER!O
.
MlNOR.J:NI AND' W1FE,RECORDEDINBOOI<.199!5PAG;B
301" OFFICIAL RECOlUJS'OF
SAID COUNtY; TImNCE
32 DEGREES 40' 10" EAST 751.23 FEET ALONG TIlE
EASTERLYLINE·OF
SAIDMlNORlNI:PARCEL
TO A POINT 'IN THE NOR'tHERL Y LINI!
OF SAIi)l'OFOOt
STRIP FlRSTABOVEMBNriONED;
ALONG tHE
NORTHERr.Y r.i:NEOFSAID 10 FOOT stlUP AS FOLLOWS: NORTHEASTERLY 374.89'
FEET ON 'ir.tEARC OF ACURVE. CQNCAVE.gOtrI'HEASTERLY
WImARADIUS
OF
.
1550 FEET AND TANGENT NOR.TH .83 DEGREES u: 15" EAsT 2912.SDFEET, MORE OR
LESS" TOTHEPOINr
OF BEGINNING.
.'
".
to
sourn
TImNCE
EXCEPT THAT PORTION OF' SAID LAND. t,TING wrnnN l'HELlNES OF ~
LAN})
DESCRIBED IN DEED TOGBORGB A.BARREr'r RJ3CORDEOON OCTOBER 13, 1944
. AS INSTRUMENT NO. 183 'IN BOOK 2i3()7; PAGE 326,OmcMI:. RECORDS OFSA,ID .
COUNTY.
.
1012017.8
38
ALSO EXCEPT THAT PORTION OF SAID LAND LYING EASTERLY OF THE
WESTERLY LINES, OF THE LAND DESCRIBED IN PARCEL 2 OF THE FINAL DECREE
OF CONDEMNATION IN SUPERIOR COURT LOS ANGELES COUNTY CASE NO.
648120, A CERTIFIED COpy OF WInCH WAS RECORDED JANUARY 20, 1958 AS
INSTRUMENT NO. 3626, IN BOOK 56412, PAGE 3, OFFICIAL RECORDS.
ALSO EXCEPT THAT ~ORTION OF SAID LAND LYING NORTHERLY OF THE
CENTERLINE OF PACIFIC COAST HIGHWAY (VARIES IN WIDTH) AS DESCRIBED IN
DEED TO THE STATE OF CALIFORNIA RECORDED ON MARCH 22, 1944 AS .
INSTRUMENT NO. 1279, IN BOOK 20743 PAGE271,OFFICIAL
RECORDS OF SAID
COUNTY.
ALSO EXCEPTING l'HEREFROM ALL MINERALS,QlL, PETROLEUM. ASPHALTUM,
GAS, COAL, AND OTHER HYDROCARBON SUBSTANCES, lN, ON, W1TIJl:N AND.
UNDER SAID LANDS, AND EVERY PART THEREOF, BUT WlTHOUTTH:!! RIGHT OF
ENTRY AS EXECUTED BY MARBLEHEAD LAND COMPANY ]NDREDS RECORDED
IN BOOK 20892 PAGE 395 AN)) IN BOOK 21307 PAGE 326, BOTH OF OFFICIAL
RECORDS OF SAID COUNTY.
SAID LAND IS SHOWN ON CONDITIONAL CERTIFICJ\TE,OF COMPLIANCE .
RECORDED SEPTEMBER 4, .1990, AS INS1'RUMENtNo.
90-1520113, OFFICIAL
RECORDS.
1012017.8
39
I
EXIHBITB
LEGAL DESCRIPTION
OF EAST SHOPPING
CENTER PROPERTY
A PARCEL OF LAND BEING APART OF THE JUNellO TOPANGA MALffiU SEQUIT,
AS CONFIRMED TOMATIHEW
KELLER BYPATENT RECORDED IN BOOK 1 PAGE
407, ET SEQ., OFPATENTS,~
TIIE CITY OF MALffiU, COUNTYOFLOS ANGELES,
STATE OF CALIFORNIA, RECORDS OF SAIl) COUN'l'Y, PARTICULARLY DESCRIBED
AS FOLLOWS:
'
BEGINNlNGAT THE SOUTHWEST CORNER OF THE.LAND DESCRIBEP IN DEBD
FROM GEORGE E. BARRETT TO LORRAINE BUSC:a.~CORDEP
AUGUST 9, 1947, AS
DOCUMENTNO. 799, IN BOOK 24850 PAGE 383, IN lHEOFFICE OF 11IE COUNTY
RECORDER OF SAID COUNTY, SAIDSOUTHWESl' CORNERBEJNG APOlNT IN THE
NORtHERLYLINE
OF THE 10 FOOT STRIP OELANDDESCRIBED
IN TIlE DEED
FROM MARllLEHEAD LAND COMPANY TO THE STATE OF Cl\LIFO~
RECORDED IN BOOK 16845 PAGE 253, OFFICIAL RECORDS OF sAID COUNTY, THAT
IS NORTH 6 DEGREES 48' 45" WEST 50 FEET ANJ:)sounI83
DEGREES 1 V IS" WEST
1125.00 FEET FROM ENGINEER'S CE'NTERLINE STATION 926 PLUS 33.41 AT,:THE'
EASTERLY EXTREMITY OF THAT CERTAThl CENTE1UJNECOURSE IN nIH 8()FOOT
STRIP OF LAND DESCRIBED AS NORTH 83 mEGREES 11' 15" EAST 3983.81:FEET IN
THEDEBD>FR.OM T.R. CADWALADER, ETAL.~ To·mSTATEOF
CALIFORNIA.,
RECORDEDlN BOOK 15228 PAGE 342,. OFFiCIAL RECORDS OF SAlp COUNTY;
TItENCE ALON:G THE WESTERL Y LINE OF THE LAND DESCRIBED rNSAIDDEED. TO
LORRAINE BUSCH;·NQRTIJ 6 DEQREE$·48' 45" WEST 141.26 FEET.,MORB OR LESS, .
TO nrn NQR'I'HWESTERLY CORNERQF SAID LAST :MENno NED LAND;. THENCE
EASTERLY ALONG THE NORTHERLY LJNEOF THE LAND DEScRIBED IN ssm
DEED TO LORRAINE BUSCHANDALONGTHB
BOUNPARY OF TIIELAND
DEStruBED INDEEI> TO GEORGE ~. BMtREIT, R,f:CORDED JtJNE:8, 1944, AS
.DOCUMENT NO. 48lN BOOK 208.92 PAGE 3951 OFFICIAL RECORDS OF SAID
coPNtY,BEiNG THE ARC OF A CUR.~ CONCAVE NORTHERLY WITH A RADIUS
OF 2860 FEET, A DISrANCE OF 80 FEET, MORE ORLBSS, TO AN ANGLE'POlNT IN
TIlE EASTERI.. Y BOUNDARY OF THE LAND DEScRIBED INSAlD DEED TO GEORGE
E. BAIUmIT; THENCE ALONG SAID EASn:~ y':aOmq>AR;Y,NORTH 6 DEGR1?ES 48'
45" WESt 236.49 FEET. MORE OR LESS, 1'0 TIlE SOU'IHBASTERL Y CO;RNER OF THE
PARCEL OF LAND DESCRlBlID IN A DEED FROM MARl3tElIEAD LAND COMPANY
·TO MYRON J. SmART,ltECORDED
IN BOOK 2D718 PAGE 272, OFFICIAL IUtCQWS
OF sAIP COUNTY; THENCE SOUTH 88DBG:RJ;m$ 01' O~"WEST 580.02 ~T
ALONG
sOU!lffiRLY LINE OFSAJl) LAST MENTIONED PARCEL TO'rIIE
SOU'THWESTERLY CORNERTHERBOF,·SAiDPOINT
BEING ALSQ THE
SOUTHEASTERLY CORNER OF THE PARCEL OF LANDDEScRmED IN A PEED
FROM'MARBLEHEAD COMPANYTQ~
RLVONs,E'T'AL.!mCORDEJ;> lNBOOK
20058 PAGE 215, OFFICIAl/RECORDS OF SAID COUNTY; T.HENcE FOLLOWING nIB
SOUTHERLY LINE OF SAID LAST MENTIONED PARCEL, NORTH 82 DEGREES 53 J 05"
· WEST 771.33 FEET TO TIIE SOUTHWESTERLY CORbl'ERTHEREOF; THENCE NORTH
13 DEGREES 5~' OS" WEST 147.98:FEET,MOREOR
LESS, ALONG THE WESTERLY
LINE
PARCEL TO THE SOUTHEASTERLY
CORNER OF
~ OFSAID LASTMENTIO$D
.
·ras
.
H)-121m,S
.
.40
.
THE PARCEL OF LAND DESCRIBED IN A DEED FROM MARBLEHEAD LAND
COMPANY TO RAPHAEL W. PUMPELLY, RECORDED IN BOOK 20737 PAGE 227,
OFFICIAL :RECORDS OF SAID COUNTY; THENCE SOUTH 75 DEGREES 41' 35" WEST
656.36 FEET ALONG THE SOUTHERLY LINE OF SAID LAST MENTIONED PARCEL
AND THE SOUTHERLY LINE OF THE PARCEt OF LAND DESCRIBED INA DEED
FROM MARBLEHEAD LAND COMPANY TO YETTA C.MANOIL, me., A
CORPORATION, RECORDED IN BOOK20688 PAGE 254, OFFICIAL RECORDS OF SAID
COUNTY, TO THE BEGINNINn OF A TANGENT CURVE CONCA VB SOUTHEASTERLY
WITH A RADIUS OF 605.04 FEET; THENCE sOutHWESTERLY
ALONG THE ARC OF
SAID CURVE 256.92 FEET; THENCE TANGENT SOUTH 51 DEGJtEES 21' 45" WEST
248.94 FEET, MORE OR LESS, TO A POINT IN THE CENTERLINE OPTHE 100 FOOT
STRIP OF LAND DESCRIBED AS PARCEt NO.1 IN tHE DEED FROM MARBLEHEAD
LAND COMPANY TOTIW STATE OF CALIFORNIA, RECORDED IN BOOK 20143 PAGE
211, OFFICIAL RECORDS OF SAID COl.JNTY,SAID LAST MENTIONED POINT BEING
SOUTH 82 DEGREES 39' 45" EAST 549.85FEETALONOSAID cBNTEiU-INE FROM:
ENGINEER'S CENTERLINE STATION 902 PLUS 18.35 AT TIm NORTHWESTERL Y
'EXTREMITY OF THE COURSE DEsCJinmD IN SAID DEED AS SOUTl!82 DEGREES 36'
10"EA81 2243.93 FEET; THENCE NORTH 82 DEGREES 39' 45" WE,:ST549.85 FEET
ALONG SAID CENTERLINE TO THE BEGINNING OF A TANGI3NT CURVE CONCA VB
SOUTHERL YWITH A RADIDS'OF 30()O FEET; THENCE NORTHWEST:ERL Y ALONG
TIIE ARC OF SAID CURVE ieo.ot FEET; TIIENCE sorrra 27DEGRBES41'
26" WEST
54. H) FEET, MORE OR L.ESS, TO APOINT lNTHE SOU1lIERLY LINE OF THE 100 '
FOOT. STRIP QF LAND lIEREINBEFOREMEN'fIONED,
SAIDPOIN'l; ~EINO THE MOST
,EASTERLY CORNER OF THE PARCEL OF LAND DESCRIBED IN DEED TO, GEORGE E.
BARRETI', RECOItl:>ED OCTOBER' 13, 1944, AS poetJ1v1l3NtN,O. 183 IN llOO~213Q7
PAGE 326; OFFICIAL RECORDS OF SAID COUNTY; THENCE WBs1:'ER.t y ALONOTHE
, sOunmRLYLINEOF SAID 100 FOOi' STRIP,B~~G'nm
ARC OF A ~VB
CONcAVE SOUTIIERL Y WITlI A RADWS OF 2950 FBEtIN' A'RAnIAL LtNE TO S~,
'LAST MENnONBDPOJNT BEAiUNcl NORTH 5 DEGREES or 46" EAST, A DISTANCE
OF 540.49 FEET; TIIENCE l'ANGijNT sourn 84 DEGREES 31' 55'" WEST 46.85 FEBT,
Mon OR LESS, TO A POINT IN THE; EA1?TERLY J;,lNJi!,OF lllE PARCEL OF i..A:ND
DESCRIBED INA DEED 'FROM MARBLEHEAriLANDCQMPAlqYTQ'CUCBlUO
'
MINoRiNI ANDWJli'E~':R.ECORDEDIN BOOK 1~075P M.E 3(j.l~OFFICIAL RECORDS, OF
SAlD COUNTY; 'I1lBNCE sourn 32 DEGREES 40' '10" EAST 7S1.2~ FIm1' ALONG THE
EASTERLY LiNE OF ssm MlNORlNI PARCEL TO A POINT IN THBNORTImRLy;LiNE
OF SAID .10 ,FOOT STRIP. FIRST ABOvEMENnONED·mENCE
ALdNGTHB
,. -'.
..
....
NORTHERLY LlNEOF SAID 10 FOOT' STRIP AS FOLLOWS: NORTHEASTERLY 374.89 '
, FEET ON1'HB ARC OF A CURvE CONCAVE SOUTHEAsTERLY WITH A RADIUS OF
, 1550 FEET AND T.AN(3ENJ'NORTa 83 DEGREES 11' 15" EAST 2912.50 FEET, MORE OR
LESS ,TO THE POINT
OF BEGINNING.
,
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SAiD LAND LYlNGwrFHIN" THE LINES OF THE LAND
DESCRIBED IN DEED TO GEORGE A l3ARRETI RECOlU'ED ON OCrOBER 13.1944
AS IN$TRlJMENTNO. 183 IN BOOK 21307, PAGE 326, OFFICIAL )tECQRDS OF sAID
COUNTY;
, EXCEPTtaATPORTION9F
1012017.8
41
ALSO EXCEPT THAT PORTION OF SAID LAND LYING WESTERLY OF THE
EASTERLY LINES, OF THE LAND DESCRIBED IN PARCEL 2 OF TIIE FINAL DECREE
OF CONDEMNATION IN SUPERIOR COURT LOS ANGELES COUNTY CASE NO.
·648120, A CERTIFIED COpy OF WIllCR WAS RECORDED JANUARY 20, 1958 AS
INSTRUMENT NO. 3626, IN BOOK 56412; PAGE· 3, OFFICIAL
RECORDS.
.
.
ALSO EXCEPT THEREFROM THAT PORTION OF SAID LAND DESCRlBEOIN THE
DEED TQCHEVRON U.S.A. me., A PENNSYLVANIA CORPORATION RECORDED
JUNE 11, 1999 AS INSTRUMENT NO. 99-1078541, OF OFFICIAL RECORDS AND MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
THAT PORTION OF tHE RANCIiO TQPANGAMALlBU SEQUIT, IN TIIE CITY OF
MALIBU, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS .
CONFIRMED ToMAITHEW KELLER BY PATENT RECORDED IN BOOK Il?AGES 407
ET SEQ., OF PATENTS, IN THE OFFICE OF THE· RECORDER OF SAID COUNTY.
DESCRI:aBD AS FoLLOWS:
BEGINNlNG ATTIIE POINTDISTANT~5.00
FEET NOR1'HERLY AT RIGHT ANGLES .
FROM THE CENTERLINEoF THE 80.00 FOOT STRIP OF LAND DESCRIBEDlNnm
DEED TO THE STATE OF CALIFORNIA, RECORJ)ED IN BOOK IS228 PJ\HE 342, .
OFjn;CIAL ltECORDS OF SAID COUNTY, FROM A, POINT IN SAID CENrnRtlNE,
DISTANT SDUTHWESTERL Y2021.28 FEET FROM ENGINEER'S Cm-crERLINE
STATION 926 PLUS 33.41; 'FRENCE cON'1I'lNulNGNolinlERL
YAT'RJGHT ANGLES
TO.SAID CENTERLINE, 33.4:8:F.EET; 1l:IENC$ NORTI:!WESTERLY ALONG THE· ..
SOU1'HWESTERL Y LINE OF THE LAND DESCRIBEiJ INrnE DEED TO THE STATE OF
CALIFORNIA,RECQRnED IN BOOK20743;.PAGE 271, OFFICIAL lffiCORDS OF SAID
COUNlY, 300.00 FEET; THENCE soUTHVJESTERLY At RIGHT ANGLES 10 SAID
sot.JilI.WEstERLY LINE, SQUTH 7 ~0'16" WEST, i1$.32 FEET
A POINT DNA
.LI$ THAT IS 35.00 FEET NOR.THWESTERLY OFAND PARALLEL TO THE·
AFOREMENTIONED~RLINE
OF THE~O.Qi}FOOT s'I'R.ir QFLAND DESCRIBED
!N. OFFICIAL RECOlIDS BOOK 15228,pAGE342;THENCENQRTH
8:?o11' 1~'EAST
319.09,FEETTOTH::E POThlT OF BEGINNING.
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to
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.
.
ALSO EXCEPT THAT PORTION OFSAlP J:.A:Np LYlNGNORTHItRLy
OF THE
CENTERLlNE OF PAGlFIC C9AST lllGl{WAv (VAlUES IN wID1H) AS DEsCRiBfID·1N
DEED TO THE STATE OF CAIJFO:RNIARECORDIID 6N~CII
2~, 1944 AS
INSTRl1MENT NO. 1279~ IN BOOK 20743-PA6E271, QFFICIAI.:RECORDSOF SAID
.COUNTY.
..
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.AI.SOEXCEPT!l"fG 11IEREFROM ALL MlNERALS~ OIL~ 'PETROLEUM, ASPHALTUM,
GAS, COAL, AND OTaER'HYDROCARBONSU3STANCES~, IN~ ON, WITHIN AND
UNDER SAID LANbS;ANDEVERY
PART TIIEREOF, BUW WITHOUT THE RIGHT OF
ENTRY.AS EXECUTEUBYMARBLEHEAD
LANJ) 'COMPANY IN DEEDS RECORDED
IN BOOK 20892 PAGE. 395 A1ID IN :1300:[(21307 PAG1$326~BOTH OF OPFICIAL
;ReCORDS OF sAID COUNTY.
...
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lOl~017~8
42 .
I
I
1
EXIllBITC
LEGAL DESCRIPTION OF COLDWELL BANKER PROPERTY
ONE PARCEL OF LAND IN THE: COUNTY OF LOS ANGELES, STATE OF CALlFORNIA
MORE PARTICULARL Y DESCRIBED AS FOLLOWS:
PARCEL 1 OF PARCEL MAP.NO. 3206lmCORDED JULY 24, 1974 AS BOOK 53, PAGE
75 OF OFFICIAL RECORDS OF SAID COUNTY.
1012017.8
43
I
I
EXIllBITD
LEGAL DESCRIPTION OF FACILITY PROPERTY
TWO PARCELS OF LAND IN THE COUNTYOF LOS ANGELES, STATE OF
CALIFO~
BEING PART OF THE RANCHO TOPANGA MALIBU SEQUIT, AS
CONFIRMED TO MATTHEW KELLER BY PATENT, RECORDED INBOOK 1 PAG~
407, ET SEQ:, OF PATENTS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, PARTICULARLY DESCRIBED AS FOLLOWS:
PARCEL A:
BEGINNING AT A POINT IN THE NORTHERL Y LINE OF THE 100 FOOT STRIP OF
LAND DESCRlBED AS PARCEL NO.1, IN TIlE DEOOFR.OM: MARBLEHEAD LAND
COMPANY, TO THE STATE OF CALIFORNIA, RECORDED IN BOOK 20743 PAGE 271,
OFFIC!ALRECORDS OF THE COUNTY; SAID POINT ,HEJNG NORTH 5 DEGREES ,IS
MlNUTES 35 SECONDS WEST 50 FEETFROMENGINEER'S
CENTER. LINE STATION
895 PLUS 47.85 ATniE NORTHEASTERi Y EXTREMITY OF THE CENTER LINE '
COURSE DESCRlBEDIN.SAID DEED AS NORTH 84 DEGREES 35 MINIJTEs 30 .
SECONDS EAST 522t78 FEET, EQUALS NORTIl84 DEGREES 44~S
~15
. SECONDS EAST TO BASE QF,BEARlNGS USED IN THIS DEED; TIIBNCE NORTHERLY
126.09 FEET ALONG THE NORTIIBR:Ly LINE OF SAID 100 FOOT srare QNTHE ARC '
A CURVE CONCAVE SOUTHBRL Y WITH ARADIUS OF 3050 FEET:
SOurHWESTERL Y CORNER OF PARCEL NO, ~ OF 'SAW D~,REG()RDED
IN BOOK
20743 PAGE 271,OFFICfA!.RECORD;
Tl{ENCENORTH 2 DEGREES 53 MINuTES 28
SECONDS WEST 51.32 mtrOTIfJ! NORTHwESTERLY
CORNER OF SAID PARCEL
' NO.3, SAID LAST MENTIONED POlNT BEING ALSO IN TIm solrmWESTERLY LINE
, OF THE 80 FOOT SnUP OF LAND SHOViNON COUNTY SURVEYOR'S MAP 8.,.16Q4..1,
ASPltQPOSED MALmU CANYON'ROA"D;TImNCEFOLLOwlNGTHE
'
,
SOUTHWEStERLy
LmE OF$,AIfi,8-QFOOT$T:R.IP. NORTH 39DEG~
',18MINUTEs
, 35 SECONDS WEST 1.22 FEET TO TIlE BEGlN'NING OF A TANGENT cuRVE
'
, CONCA
SOU'tHWESwU:Y wrt'HA RAnIUS OF 960, FEEt; TImNe~,"
NORTHWESTERLY 340~08 FEETALON6 tHE ARC OF SAID CURVE; T1IRNCE
TANGENrNORTH
59 DEGREES 36 MINUTES2S SECONDS'WEST 524.39'FEET;
THENCE LEAVING SAID sollTHWESTBRLY Li:NBOF SAID 80 FOOtsl'R,lP, SOtJTH 4
PEGREES 52 M.lN"U1E$ 20 SECQNDS EAST ·169.88 l:"EET; 'l:'HENcE,SOUTH29 DEGREES,
36 MINVI'ES 27 SECONDS BAST 46553 FEET, MORE O;RLESS, TO A POINT WHIca
BEARS SOUTHS? DEGREES 28 MINuTEs 45'SBCONDS15.65 FEET FROMTHE
NORTHWESTERLY CORNER OF THE PARCEL
LANJ)'DESCRlBED IN A DEED
OF
TO rna '
"
vB
,OF
FROM MARBLEBEADtAND
CQJy;(PANY, TO CLICERID MlNDRlNI A;NDWIFE,
RECOR1>ED IN BOOK 19075,PAGE 301; OFFICIALR.ECORDS OF SAID COlJNfY;
'fIfENCE NORm 57 DEGREES 28'MlNUTEs 45 SECONDS EAST 21053 FEET TO THE
NORTiIEASTERL Y CORNBROF SAD>MINDRINI PARCEL; TRENCEFOLLOWING
THE
BouNDARY OF sAit> p.AJ,.CEL,SOU'nIEASTERLY
119.80 FEE'F,MO:RB OR.-LESS;
ALONG 'IlIE ARCOF A CURVE CONCAVE sol,1tHWEBl'ERL Y WrrHA RADIUS OF
2460 FBETTQ A POINT IN TfIENORTHERL Y I.JNg OF'tfIB 109 FOOT STRIP
, 1012017.8
44
HERETOFORE MENTIONED; THENCE NORTH 84 DEGREES 44 MINUTES 213
SECONDS EAST 99.80 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
EXCEPT THAT PORTION OF SAID LAND LYmG NORTHEASTERLY OF THE CENTER
LINE" OF MALffiU CANYON ROAD, 80 FEET WIDE, ~GRANTED
TOTRE COUNTy
OF LOS ANGELES, BY DEED RECORDED SEPTEMBER 18, 1941 IN BOOK 18752 PAGE
205, OFFICIAL RECORDS, INSTRUMENT NO. 1096 OF SAID COUNTY.
PARCELB:
THE SMALL PARCEL BOUNDED AS FOLLOWS: ON THE SOUTH BY THE
NORTHERLY LINE OF THE "100 FOOT ffiGHWAY RIGm OF WAY, ASDESCRIBEDIN
TIlE DEED RECORDED IN BOOK ~0743 PAGE 271,OFFlC~
RECORDS; ON THE
EAST BY THE WES'TERL Y LINE OF SAID MINDRINIPARcEL; ON11IE NORm BY
THE BOUNDARY COURSE DESCRIBED ABOVE IN PARCEL "A.", AS NORTH 57
DEGREES28 MINUTES 45 SECONDS EAST 210.53 FEET AND ON TIm WEST BY THE
SOUTHERLY PROLONGATION OF TIm WESTERLY BOUNDARY COURSE OF
PARCEL "A" ABOvE, DESCRI13EDASSOUTH29
DEGREES 36 MINUTEs 27 SECONDS
EAST 46~.53 FEET.
EXCEPTING TIIEREFROM ALL MINERALS; OIL~,PETROLEUM, ASPHALTUM, GAS,
COAL AND011HER HYDROCARBON SUBSTANCES lN, ON, WITHIN .AN:oUNDER
SAID LANDS AND EVERY PART 'tHEREOF
w.I11:IOUTRI(fflT OF ENTRY, AS
RESE~~DBY
MAiR]3LEHEJ.\DJJ.AND COMPANY, 'IN THE DEED RECOIDED iUL Y 25.
1945lN BOOK 22187 PAGE 124, OFfICIAL RECORDS.
.snr
1012017.8"
45
EXHIBITE
NEW WASTE DISCHARGE REQUIREMENTS
1012017:8
46
AND AMENDED TSO
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I
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¥~~ '~nal w'ater~~aJ;';~YI
.Los Angeles Re~OJ:J...
~alll~rm""
~
-,
nston
R ~dt(JJ:
3~
w. 4th SttCet, Soia: 200. Los ~ck:s,
C:lIif~a
'
--atroI Board
.
90013
'l'hol1c(2~3}S76.66(JO .FAx (213) 516-6640
.fntcml:t. A~.
http://www.swreh.CLgovl-rwqcb4.M
SeaefaryjOr
"'qvU-OlUllJmlal
Proteclion
.'
O·R..fG-' N" A'l
Gray Davis
GoVU1l.O~
r
December 22, 2000
¥So Karl
Kramer
Malibu Bay Company
.
23705 West-Malibu Road. Suite D-2
'Malibu,: CA 90265
CERilFJEO MAIL
RErURN.:gECEIPT.REQUE$TEP
,
. ,~NO.
7099 3~20 0004 2781 9205
"
$W WAS"t.EDISCHARG-E REQllIREMENTS
,~MALtBU-~AY,Co.MPANY;MAt,mu'coLONY
AND'l'1:ME SCHEDl.iLE
oRnER.
.
PLAZA., 237(l5-23841WEsT MALIBU
orne N(t~,OO-065)
" RO~, MALIBU;CALWORNIA
"The Calif~
Watec Code. SectiQ~13263(~.provides~~
~e R~gional Bo~ after any ~~sary
r~uirements as to the .nalin;e .of any proposed or f}xisting. di.s9harge.. In,
. .aceQId;mce wit\l administJ:ati:ve'~
this Board at.a public h~g
held"pn Decetu.ber7? 4000,
CopSideroo tentative Waste Disc~e
~nt8
an4 a Ten~ve ~e SchCdule 9rde, and
cOnunents !b,~of. ~d. adopted the enclosed W~ P1scb;n'ge Requirepiet1ts 0r4e.r No. oO-i82. and
.hearing: ~han prescdbe
' 'IlmeSchednIeOrderNo: 00-183. .
..
. . ".'t. Waste DiSc:hatge ~ements'consisting
'".
.'
a;
.
.
, b,
of:
BoaidotderNo. ~i82
.
M;onitori'!lg.andReporting Prog:rBrQ. CI 8158
Standafil:&ovisio~ Ai?piieapl¢ toW'aste Discharge Req~lllents{a~seeonly)
c.
P- . Time
.•
SChedule Ordet
Ng. 00,.183
..
'
: Pqmuantm CalifomUiWater Code Se;¢tiOQ tS320., any fI,gglievedpatty may seek review of this Order
, .:by fiJinga ~on
WiChth~ State Boai:d.. A petitiQP.~tbe,
~ to tb.e state. 'Water :Resotuees.
, ~ .. CoD:tIOl\l~o~ ::r~~:
Box l:6o~S3C1:aDlepto95812; Within' 3(l da~,Of a4Qp~Cm..StanQaid PJ:'oyi$i~ ,
" .: wbichare part sf these: tBquirenlents. are c:mc~oSed.foll the' a4dl:~
only. Howevet,'these .a!re01l,file
':. ,in ourofi;ice. and a copy..wiUbe sent to you upon'~
,
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'. "If yotihave anyqoestions
or
need
additional
infoonationplease
call1U~ yergets at {:213}$76-6788.
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RECEIVED
"FEa (} 7 2U02 .
Dennis A. Dickerson.
PlANtJfNG O~P7:'
,.Ex~utiveOfficer
"
'California EmoirQlUllentill p'rotedul4 AgeB9 '
.
OIir/llU$i04 ina presme tmd
".
~'tk
.~'
',W
,43,.
... '. '
ReCjekd'PDJlef
quality tJjCDIifornia"swat~
•
ru.aun:a for 1M ~
ofprt;tt:m t11Ul/ilJlIre ~t:nUi.
Attachment 3
. Malibu Bay COmpany
-7-
December 22. 2000
Enclosures
cc:
Mr..John.Youngenilan. Divisio~~fWa~
QWdity. :State Wa,ter ~esoUrcesControl BO~d
Mr, JQr.geI.eori, Office of Chief Counsel. State.Water Resources Control Board .
Mr~Bill TIppets2 Dep~nf:ofFish
and Game . .
.,
Mr.H.eaIthServiees
Gaty Yamanwto.
.~
0.:
Drinking Wai:~ FieldOperaaons
:.
'.
Statet>epartm~t of
Br'-czI1~
.
Mr" Brim HQopef •.D~nt
ofPUblic.W-ow •.County of Los AIigeless .
'·Mr. Jack Petralia, Department ofIlealthS¢rvIces. Ceunty ofLos'Allgeles
-MiT. CarlSjobetg.:D¢parf;ment of Public Woib.·Environmen.tal Program Di$ion.
.. . County oflSos Angeles.
.
.
.Mr. Vic P~OIl~,Ciqr. ofMahlJu
. Mr. ~
Glld.Het:tJ~1hC Bay .
, M.t.Patnck Rbgail.;SQtmderIb~ti()n
.'M.r. $teve.FieisChli. SaatitMOniea B3:jikeepet"
. Mi 'Teny Tanunine~BnyirO.Dmetit Now .
M.t; Steven Brab~.njaSolutions.Jnc.
Mr,;Richatd So~ Mai~on·:QeY'ille'F!o~wnec·s ~QCiatlon
Mi: Dean Iss3.CSQtt Cluttteau De'Ville .
.
Mr:
Alan Robert Blo~ Law•. Offices·
of A1~Block
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STATEOFCAI.JFoRNiA:
CALIFORNIA REGIONAL WATER, QUALITY.CONTROL
.
LOS ANGELES REGION OWERNO~ 00482
WA:STED1s<:!HARGER13Q~'
"FOR,
MALlBVllA-Y COMP.ANY
(Malib& Colony P~)
, , ',(Fil~No.OO(065)
'I·
.,
'Pre
Cilifoi:nia
...
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nOARD
.
J,{egibnaiWmer QualitY· COntrol Boopt Los Angeles Region ~gionai
'.
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Bonrd}finds:
.
~bui3ayCoDlpany
(heteinafteF Discharger) .oWI1Sth~Malibu Cdlcmy PI~a:.locat¢at
,~705-'2384AWest ~bnRoat\
,M.alib~~Omia.
Th~ ¥aJibu Col.ony Pl~(i?laza)
(Fi~
1) 18 comp*eti 'of a ~,of
retail ap.d COIDInercial bilsine~~'inclll<Jing a
' ,dmgs~
a suPerinarlc:et:o a"bask. ·seVeral food ~
facilities. a dry cleaner. a
' " ~o~e1secvice ·ten~ a ~em offiCe,~d 'a one--hour photo 'l?!OCeasi~g.bus1n~s.
.
These ,b\fsines~es.witb:th:ee~cepti.onof the.OI;le-nourphQtQfacility.discharge waste~ater
" :tq the, I>i~charger"sseptic s}'$tem1• . According to the Disc~r.the,
on~our photo
·.facili.ty.fio~not ~harge any waste to the Gept\p s:YStclnand the facility does nofhave a
' restrQo.mor sink,
" 2.
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the ~laza'i8 in ~ ~wered ~in
'the City ofMaJibu{al;y)~ The Cit,y ~
not provide
any wastewater collecti.on and treatment utilitieS; ~.
it ~lies upon s,tibsurface disposal
"Systeins fo( disposal o.~dQ~estic. CfiliuneroiaI~ anq 'iU~aI,w,~tewater..
. ,
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. 3-. . •, .On I¥cember 12; 19.99~'MaIilm Bay CO:tI:lp~yfiled a :rePort of Viaste .mschatgepursuant
, ..
to ;a·,lJP'ective;from this R¢gional iBo~
~
~iichaIger' diSCII3Fges ~aver.age of :jS"OOO
' . . : millcmS per day ~
of ptiIna:o- treated septil'} system. offluent to forty-nine seepage pi~
..-, -',
in WlIltCr Canyon. 'The dispos8.1 area js owned by the Discharger 8$ shown :on Attaclmient
'
,.
'. ~ The
~tJ4? system and'~l;JgepitdispOsal ~
is desigi.tedfQI=:,fl m~tn:n
.
.: '~dmlYflow of'up to 45 QOO gpd.
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Th~ Diseharg~ ii1stailed the, ~~.-septic
System ~ ~
pit disposal ~t@i in
- 1989 dQring the conStruction of the ~buCQloDY
Plaza as approved by lhe Cotro.tyof,
Los ,Angeles. . TheMa40u COlony PJ.aia diSposes of all demestic and, Commerci~:
. wastewater tb.t.ou~tbe septic tankfseepage pit dispo~ $}'Sten:t.The discharge from this
. ...
....
.•.
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.
;1 n.e teem ~l;t systeulis~in
~ docoincm:toCQfi~ that~
•.fhc:-*~
rc<;"(:ivcsogly prl~
'~t1;ltthrough'a
$Qj~ of gteasein~
and·sepnctaDJcs, prior di?'Sal into ~ge
pits. Thel)isQbarga: '
~~iD$lla~sjstelnthatwillp~a,~and~Ddar:y,~efiIUent:
" "
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to
'.
Noveniber20 .,. soee
..
ReVised:
December
7.
2000
.
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The Malibu Bay Company
- Malibu 'Colony Plaza,
·QrderN."o.00-182
"
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complex is repr~entatiye of aCOillmercial wastewater w3S!b stream and th6 majority of
constituents would differ frora thatOf;;t. residential septic tank, The commercial strength
_effluent i~ a resUlt"gt -eleviltedBop
an:doiland
grease Ioadirig fro.m- resta~ts.
Wastewater froni. thi-eerestauian~entei:S ~e·.interceptors and receives pretreatment
-prior to entering the main. ,gravity "line leading to the septic ~
~ent
consist$ of
oil/water separation and passive filtrit.tion .through a commercially sized p~ive
filter
. device. The prima,ry. components (Jf-6J.eseptic-tank ttea~nt
sy;tem copsist of a 45.000
.' . gallon septi~tank, a8eCond 4,5POgaDon septic t:q.nk.and thteegrease intercepters with
"efflUentfiItm (located at eachr#t:lUn:ant site). WastewciterliPm tb~e septic taJiks fJ.o\y
to a lift staf.j.onvihexe it is· ptrfuped fa-an adlliaonal 'five septi~tanb," -8nd()~e""d$tri.DlltiQn
box prior'to disch~e iqto the" fatty nine seepage ~pi!'S';
-On Fe~ruary 18.20QQ. Regional B-qard staff ~1e4MaIi~1l
BayCompaqy's wastewater
disch~es fmm'ifs<;listributio~ JxJ:X:Prlor ta~diSdhluge-.into the-~page.pits •. Volilfile
orgmri~ coqJo1lI)ds (vOCs) W.~e detected in ~B~Y.CoJ;XipaIiY's·"¢ffluent.
The.
"following table shoW$ ilie'Concentrationa- of the volatile organic coii:J.p~upds det~ted:
Chelllical
. "ConcentrationS
I
ChlorofotnI .
-,-
Bromodich1oromethane·
"
.
1'~fCiethep~'(PCE}
.
. Djhrotp,ocblorometbane
"
1.3~Dichlpro~e
tJ;i.~o~ene
(rcE). -Tolueae"
•
_.
_
••
<fJL8JL .
<:1p.gfL.
161..'P-S'6-J
.;.ir
<lp.~
12p.gIL
-3S6"/.'gIL
, 81JLg/L ..
......
',6.
... .
.'9n ApriI-I0~.2000. tlie R.egipnal BolP.'4~veOffice£
issued a 'Noti~ of'VIQla#QD:
, -, .. (NOV}:toMalijiu Bay CoUlpanyfot discliargfugdomestiC}v~atereoDmiirlng
yolatile .• .
·Qi'g~e CoinpoUnds :to .~~ s~
pit disposal .sjIltem itt viol~on ofLos Ang~es
.' ':: -' .. : -, -R.~gionalWater QnalitY~troJ.Bom;d·aasin Plan gtoDndWaterquautyobject:ives
and in
excess of State. and ~
~
~tJw1jD1),Jltt.eve~(MCL) .. The- JiIDV.rilqnired
the Disthargerto:cease ~g
vohltile~g;mic e<>mpouiJ.&.
to its, se.epag~(pit-dispos~
System. '~aijhu" Bay "CQmpanynolified
Og&m DIy Clean~ yro.,ich di~~es
into ~
"
bischarg¢!'s septiC&~
tQ.' imm.ediatelystop
using <hy cleaning soIvents:to comply
witb~"R.egi01UU:e()ard's requirem~
.
" .
_
- , . : 7.,
The wasteWater· "receives'
·tre.atment 'in -the septic system- before being
discbaried tnthe soopage pits., The effiUentquaiityfrom.:tilesepnc 81_ ~snot currently
mo~tored on ~"Iegu1.arbasis: as a tesl.1lt the effIuerii "quality· ffolU. t:h~ seplictank is not
- . "knoWn. On Febnuirr 18;<2000~,Regional Bomrl- staff di4 sample ~tJeIlt·fn:?m~e. septic
omyprlmmy
I
...The Malibu
Bay"<;oinpany
Mallbu Coloqy Plaza .
-. Page 3
:'OrcIerNo" 00:"'182 "
'..
8.
.' .
. system.h.owevei-. The existing.septicsysrem
is nor capa6ie of disinfecting
FeID.9vmg nutrients that ~ diSchaiged to the,s~p3ge pits .
wastewater or
. :Pis~baEge$ from the existing ~ptic tank system iBfilp:ilte groundwater through the
"s~e
pit disposal.syStt?m. The botiQni of the Seepage pits and the ~ater table maY.11.6t
have a" J;D.iJ"ilinum required In-fo~t vemcal separation.' .I:q addition" the seepa~ pit
disposel systcllfdischarges i~ closepr-oXirnlly (approximately 05 mile) to the -Pacific
Ocean, GIVundwa~ monitoting is being reqrQred sm,ce groundwilter at lhe'disposalsire
.
-maybe in hydraulic CQIUIeCticin With'the Pacffic O~
The ~hargec
must upgdl(fe the. "
septic system; and ·install' disinfudion ~t
to ~ect
the"effluent to ·Jev.eIs -of body
. contac,trecreation pxiorto disc~
to th~ seepage pit diBposal System:
'.
'.
'.
«;
. :9.,
"
tbe~onaI
:aoard.cnco~estb,eDiscbargetto.
conSider·up~.that
wonld enable.
:the ~eiit
systym to. meefw.a!MreclainatiOIl.~
ana provide.greatetfiexibility
.
.·for .disposaJIrew;c of thetteat:ed~imewateJ: fromihertreatm.ent ·sy$tem. The Dischatger
has indicated tb~ 'they. are eVal~ting·.¢Qsteffect:ive·ways te.reuse tleatedeffluent from the .
." ti-e~#nent SY~tn:
. . .
'.
',.'
.
:":'. iii.":
'lbefacility:inclllding the ~
pit diB~ ~
is l~
in Seclion31, TO~p
lS;~ge'17W
(~an Bernardino Base &. Meridian). and is at a latitude 34° 02' 05" N in4
a lonm,tI::1(fe:of '1.18° ,41'-20;" W •. See' Figure 1. for. SOme Qf th.edeveJopm~nts
-aad .
hyd,rologicf~aturesn~
t1)e'faCility
wbichiQ,61ud~
.
.
"..
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...
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1'he~u
Water Pollution
Ceriter Way; "
Control :Pl~t (M\vpc:p)~Iecated north of Civic
.. .
'.
.
·WjnterCanyon ~ag~.loCated
east. of. the MaiibnBaY Com~an1s seepage p~ts;
.The pacific Ocean; located aw~ly.O~
miIeto the so'!-th of the ,~eepage .:
.. . pits; and,
. '.
".
,Malibu l..agc:lon,located .xiinately
1.-0~~ souiheast.,~ the seepage pits.
....
'.
.,....
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: ,11: ,.', 1'IJP l»isehaiger. dees not CUIl"ently~onitof··~\V~
in ord.et mia!natc any impacts .:
frcunit"$ ~obargeof water. however. the RegiOlial Boord is DOW requi.riUg the ;Discharger
.to dd~o.. Additiomtlly~ otli~ neathy ~~.~
m9~toring8l"oundw~.
. . , .....•
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,
.
to
11.
w~w_
The Winter Pmyon area is also .~for
disposal' by o.tber dischargers:
"The Regional Board is concetned !bat" groundw~ in Winter-Canyon·may Dotre "able to
.' assi¢late Wastewater loading from the e~fingMa1:ib!l Water Po!Jution .Conkol Phult,
.~)th~rnea.mysubsw:face d(sposal systemst~ Bud from· tWlMah"bU Bay <:gmpany di"sch~ -.
.:Futtherm.ore.tP.e City of MJI1ib~·is ,in the. process 'of deVeloping 3 CiVic Center Sp~c
.t'l~f which~.pe~g approval of~~ City C01lll~,(may in(;Ju~a centIalized, wastewater
cbUection au4 treatment program for the Civic Cellter arsa.. Howevei; tbesb:ltttsofthe
.
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. The Malibu Bay Company
Malibu Colony Plaza
Page 4
Order No: 00 ..182
Civic Center specific Plan is unclear. Bach developer has initiated:a 'grotfudwater
. monitoring program in the Wmter' Canyon area. Bycoordi.nating efforta, ·theDischarger.
developers • and City could benefit from .~ m0l"ecost-effective assessments af t!le'quality
and.·qtl3l;luty of gioundwa,t~Pl Winter Canyen..
'..
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.
. 13.
. 'The septic tanks ·and seepa.ge pit disposalsY8tems for the'MaIibuColotiy
Plaza are l~ted.
!It the Mahon Creek HydFologic Subarea qnd. ov~e.the:Malibu V~y GroU1}4water
Basin.
·14.,
15.
..
.
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The,ltegioXFilBoard ~pted
a ~~ed
Water Q~t.Y Cotitrol"Polan for. the Los- Angeies .
Region on June 13, 1994, The water QuaJity ContIbl.Plan- COiitabls '{jeiieficialuses and
water quality objectives, for grt)~ndwater· Within. theNWibu··ValIey· Ground-water Basin.
The req~tS
COl)tained..in this.·O¢~.as'~ey~
~ will be in confotInance wi~
the ·goals and objectives of the Water QuSlity Cpntmi P_ .
' ,
. Di~chaxges'~
the seepage pi~ infiltrlite g:rO.tU:ldwater. . &jst:@g bent?nclaI USes
, ~igJiated for groUndwater include~gricglti~l SU;pplyaiidpoteilti~ mUtJicipa:J.., dQmestic
and indusf!:i~supply. With regard to the Use ofgrawulwaterfur
municipal and" d~~tic
,·supply, the Discharger hasstated' there ~ no public water wellsd9WIlmdientof
the
. seep~e pits:. ratable ~
cp~Ctt$
in die .area receive amy impm-ted'wate£ atld this. is
. from fue. Los. Angeles CritiuJ;y" W~rw~Di.i~~
No. 29. 'The .i..(J~ Ang~ COUIity
. W41terWQJ'ks
. Djsfrlct No. 29 receiveswater:fromtheMetroPQlibui·
Water :Dis.trict of
'Sf)uthemC~fo~
:vi, the WestBBsinM~niciI»d WaterD~since
iI96l..
seepage .,11:8may be.inhydtaWic connection With.n:eatby
waters, snch as thePaei1ic"()~
~enqficial USC$ designatedJortbesesurface
". . w~.··· mc1ud!ng'.Malib~ Canyoa' Creek,; Mat.bu..' ~uu
!..
goon, and ·Ute Pacific ~
.include.
... ,. '.
- ,:ai.iiong 'Qthers: COJ:itact ~4 ·1lOQ.~ontac~ water· tecntation; ~ne habitat;· ·shellfish
,~ .:.
. ':.' -.haFVestlng (potential); wildlife habimt;and spawning- (POt$tiaJ:). :A.W~r·QUaIity
': " .' '. ' .Assessment; a~'
by this Regional Board on May ;18~·!998. idfmtifi~ ~'be'l.a1Allg .
:: . "
.: -the Santa Monica :ijay(mcluding the M.ah~ are~) as inipaired by .patho~ fqr contact
water:~tion.
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groundwater tinded~g_the
, 'S1idace
o
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The teql1ir6merits jn..thiS Oroerare 'in confonnance with .f!1e goals and objectives of the
Coul:J;ol Plan; .The ))ischalgerJllus~' up~'the existing treatment' s,ystem:to
Mddisinfectibn capabiliti~
.
.
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W~tec Q~
.
.
18~ The 'pischarger $. not ~le to quantify -potentialiritpacts, it: 1ltlY. that may result from th~
·discharge.togroun4w.iter or to nearoy SUIface.wateISsQIce there is no·ewrentp>undwater
.
er s1:lrface,waier monitQring data C()nducmdOtb.erpatential impactsJneluile tl1e discharge
·tof nutnents an&bacreqa to ~ace water. and the coa:espOndina. "water :imb;flanq:"
50
the MaiibuBayOlmpany
. Malibu ~olonyPlaza .
Order No. 00-182
.
Page 5
. Whereby the high volume ~f waste,water drncnarged1:Q gr~undwil.ter. can- Cause an .iIJcreased
" .discharge of gro~lB.d'Yaterto.s~a.ee water, The Discharger shaH lWgrnne the eJdsting .sepfi9 .
..
&ysteiD. t9 ~
the propesed limits in this Order for. total and fecal. co~orm and'
'. ~ en~
The Discharger shall. upgnide .the exjsting septic system to a wastewater
.. ' ~e~nt
system ~ ~
pr-oduce a ..disinfeCled~d
secondary treated wastewater..' The
.Discharger :will:be required tomoaltor for total colifo~
fecal· colifonn and enterococcus
". ~a·iii
accordance with ·Monitoring and Reportipg Program' No. CI 8158. In addition.
,'the Discharger .Sh3H.monitor for nitrogen CO:Dipq~ds'(nitJ:ate, ~trite._ arnmoqia and 'organic
'. nitrogen): phosphotus mid' 8llIfuCUuits in accordance with Monitoring and'Report4tg
. 1'.rQgramN'q ..er 8~8.· If moJ;litoiingindiCates thatn~~
are inipaeting .the wateJr qUality •
. nU~eJit~movaI wilI:oorequircxl
,I
... .
'A '~und_F
.mQnit~rlng
pm~
a
and Burf~ water~torin.g
pP,lgr.,wJ aie',neqessaty
frooi the' ~harieof
waste te gtocirJdwa~ quality.-and to
~e
the 'mj~n
poten~
of waste discha!-gedto groundvvater.andn~
~nrface .
" and ocean w'ater.. .~ ~ufulwatei
~d a' $Qr,face water' monitoring program, shall"'~
'establish~
so that: groUndwater and s1irfaCe.wau?t (if'pr6sent in ~the.W"mt.er ~yon
. "~e).
IP3.Y be sampled' and anaI~
to detennine ir'discbarges tro:lI1 the septic ~m
'~ae.t
~81e('q~ty.
'
to evaluate 'MY jn).p~
20.
~~~,s~h.
. This projyct invqlvesJln e:ll:iSting facility
is exeIIipt'from.theprovjSi~.of
.the Califomia Envirqumental Q-qa,ijiy Act (PUblic Re$oqrc::e:;
seCtion 2100 et seq.);
: in aeeordan.¢;\t;ith ~fOmi.a Godeof Regti};iuons. Title 14;Chaptef~. S~tiOfl; ~153Ql. ' .
cci4e.
'. The' R.egionai Board has.ll~tifi~
the DiscJiamer ax;d,intetested agencies and' persons of its intent
.. ~o prescribe Waste Disc~e
RequirementS ~or this 'disc~.
and has provided them 'With
, oppottupity to $.Jibmit their written vie.wsand reco~etrdatiOIisfOr
the 1'~CU1e)lt$ •.
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Bo__et ip
a public meeting. hearc:J and COnsi~'
and to the JeqUjreInents.
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.orne ~gi911aJ,
: '~sch~~
'an '~cmts
.
p~g·,tOthe,.
'
..: " 'rr'IS llEimBy ORDERED -th~·The.Mahon Bay CoIQPafiY (Discharger) 8~aII COIllply·With the
,following:
A.
"..
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,
-
. lNFLUENTUMlTAnONS
..
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.
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1.
Waste dischargedsban be lliniied to domestic and !<:itchen wastewater 'on1Y~No,
water softener regeneration brines or ~al
WaSte. wate.w shallbe" discharged lo
sewers. that flQW to the ~eplic sjrsteIiL.
51
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.1
The MaliQll Bay Company,
Malibu Colony Plaza - .
.Order No. 00-182
Page 6
maximum daily flow. pf infiuent to the cd1lection 'syStem. 'sIUtn not exceed the
design qtpacit¥" of 457000 gpd: 'llii$ flow limitation also applies to effluent
2.
~e
discha,rg~to the see~e
Pits. "
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3.
No v.!>I~e org;uu¢compounds
system.
..,
".
are to bp'~~ged
,
.Into .the sewage' ~PQsal'
.
..
E.
'. 1. ,The
.'
.~.
:'
'pH of 'Yastes disch.arged Shall at aJl~~
~
BOPS
·S·~soHds
TW:bidity
'
.•.•.• ,.,Ir.
. ;;;U~
.'
'Qn and' grease
~.
'.~gf.L,
mgfL
~"':"COIifo'
,.OIl. (a)
.
•<
•
.
-,
"
. 'tnayoom
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•
,
.M,mn00J;nL
:lv.IPN{l~
.I,.~
. ,
. 'Maximum.
30
45
.30
10
45
.is
15
2,.000·
mgIL
- Sulfate
Chloride'
.En~(b)
Average
'FJlfVL
-'iDs
.
.-:.:""
~6.5tpS:5pH units..
Die wastewa.ter'Wscha,ged into the Seepage' pits ~all not coiltain.·constituentsin
' ~cess'ofthefollowing:limits:
'.'
," ,MQndiJy
Poicititttent
'}
between
500
500
200
. 104
'a'
The. ~I:•••...
=. fur·.••••
,~
. nrt t&~i"t4-_-"Of..i._~tinto
thC~--pits
. . .
,'I
appIY"r-91
. -Ii""
.~
.
~~_~-q~ .
. : h)' The~
ljmit ~basettOg ~c
~
or_feastS equalLy spaced samples many
...
3(I."""1Iirio<t:'
.
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ft ••••
".
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.~i>UCfAI
3.'. ': The:~~
mtbe ~
pim-stiaII.1l<ll CODIl!in sails, ~V}' 1IIelaI>;'
. 'or qrganiC'pon~tS at; leveIstbat wonl4 ~.groundw.t OJ; gmundw-. ~
hydt'anlic coDnection with·8U.lfilce waters designat.ed':for marine ~ua~c
life OJ: body cOrttaci~on.
..'
'fie
4.
AilyWaste8 !b~ do'~ot meet
f~gomg reqwrements sJi.all beheJdia~OlIS
COntpnersf and diScharged at al~ pointof!:JisP.osa1
_.
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The·MalibuBay.conip-aIiy
Malibu Colony Plaza
. ·OrderNO.00-182
._. . c.
P~OBJBlTION.s
,"
~.
1.
there 'shall be no sanitary se",e.t oVerflows or. disc"harge ~f wastes to, waters of the
State' (mclmJ4ig storm drains) at any time.
.
,
2.
• No p;m of the septic system'and the seepage pit$ shall be closer than 150 feet to any"
'water well No part Of the septic ~J;I1
and -disposal system shaD 00 closer t1la:Ji.
l~ feet to atJys~
channel or other.w3tercOtitSe. .
:
'"
..
N()'PatiOf~"3Cj)tiC
,~ysttm1.and tIi~.seqJage pits -shall extepdto flo £Jepth wliem' ,
wastes may deletedouslY afJEctan ~erihat
is l.lSabl~for domestic pw:pOses.mno
. , •
, cas~.tila.y .!J1e'septic;~
. an~.theseq;age lJitsextend to'within IO:feet af th~zone ' ' .
. of -bistorfc or anticiput;ed. high ground water level ~ Discharger mUst aub~t.
c~cation
~ the septic system lUlc;l the 'seepage pits 'm~ this xeqUiremen~
H~weY~j .tJEOn ·~atieilof
-diSipfection ~nt'
and, compWmce 'Wit1.J'fecal
~9lifon:nreq~ents
.Ia ,tJli~ Qrder~ as :'wc;ll
~mpli~ce
With
other
fuqQiiements indUs, Ordei-~ the :aiscQ~ger:may no~ need' (t) romply, ~
this
teqWreillent for a Illinjinmn Vertical ~aration between the' septic system and -the .
~t"able"'
'"
.
as
.0. ,
..-
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.
4cilities shan be prP"Yided to divert
..~ ~. '." 'A~
th~~seP~G~,seepage
pits,: ;litd ~~
~
.-
or so as to, cause ~
waSteS discli~ed Shan, not impart ~~~ ·~calor.
pljjecti~nable;chapu:tedsticsto th~rec:eivingw$r~-
5.
.. .. :
an
. W 3stes shall n:ot be dispcise4 of in geOlogically IlD$lble~ai
movet:Df:rit.
. 4~
.-
,
.
s~.
_.
~~
'fo~g
or,01;lJ,~
Sbmuwater away noxn
~~ypotenti~
pPlIutantsare .
.
_
.
, .
,'. . 7.
.8.
"
.
. .The septic tanJ{s; se-weroonectiQll syste,m ~d QIe seepage pit dispoSal'~Jl4 sh~iI
be protected from Gaulage by storm flaws er rimof.(gen¢catcrl by.a lOO-yem;st:mm.
Th~ sh,aU 'be no
ons~~clispoW of sludge. Any 'offsite dispoSal of. SC}wage~
~ludge $aIl be ma4e oglyjo a le¢ point ()f~,.
FOE putposes of this Order. a
l~aaI _4ispoS~.Site is one for wbi~ "~~
'have been.estabHShedbY a
~CaJifotniaRegional ,Water Qualiiy Olntiol'~
and~wbjcl;t i$ in -fun compliance
-'.therewitfi Anysew.m¢ or sIud,ge ,han.dlingsbalJ.be in ~h>a ~
as to-Prev~t
~ts~bing~
waters or~
.
The MalibuBayComP~Y
Malibu'·Co19ny Plaza
Order No, QO=-l82
9.
10.
p_
Wastes discharged $all at no' time contain any substance in concentrations
iil,1lllan.~al,
or aqQatic ~e..
.'
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-13.
Tbedirect or in~
disclmrge of any wastewater tosurfa~~.Or
daiinage courses is prohibited.'
.:
'
cont:amiiJ~()n,
or
sm:face water
.
II
of ~,
The DiSchaxger $all ~"au¢
the capaaity
dispOsal system is
'a~tortlIe'~f¢gC!lDd
that ~
Steps ate taken to ~od8t,e
.
.sYstemfaj)~~orto4eal,~loss
0
of-~~~of-soi~
.-,
b}
The Piscbatger shaU'~1ish
I:weline nwrienUovd.s il;1 theefflQent~om
. the' sq>tic ,~,by.
mo~t~ringnuttientS iIi ~water
pri~ to disch2rg~"
. into the seepage ,pitSand gmun~
,
c)
A iD:omtorlng ProgJ;im.l f~r groundwater shall be esiab~ed .S()' that the
gr:Owidwater~ately
~gmdient
'2md npgradient from the disCharge
area. can' be, measured, s~Jed. and ~mYLed ,tQ detemtine if discharges
.
.
of waste shall ,not aeate 3COI1,dition
to2tic to
The Pischarger' shall .IDeW;ith ,the Region~ :e~aid techIiical: .reporta on selfmonitorb;tg work performed ,aCcoidin,g with the, speCm9aUQIlS' contained in
MohiroJing, and ReponmgPtOgmm zlfo"~I;S8. as diiected by tlieEXeciltiveO.ffi.cer.
The ~,
of any in~Oring do~mqre,1ieqll~tly ,~, req~",;p: the Ibpa'tion
3JldlQrtimes· ~edin
the Uonitorlitg andReponmg PCQgraJn shaIlbe rej;lo!1e<lto
:ihe ~gioruanoaro... Moni.toiiDg and' ~orting 'PrQ~
No.8is8 contains
.JequU-enienfs. atIIQng-otheI&~speCif.yjng die fonoWing:
.
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of pollution.
The~~e
nuisance. .
os)
•
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12.
1.
'.
. Sewage odors shallnot be de.tectalile,
p~·PROWsIONS.
•
.:
The sep.tic llyStell1; including the sewers 'tIl3.t·area Part 'of the septic system and the
. 'seepage pit disposal' system, shall beinaintaOied in 'such' a Pl3:i1ner that at no' tinie
will sewage be: p.ettmttefl to surface or ovetf!owat any location.
'
11.
'
PageS
. from the 'Seepage ,pit' ~
.~,
h~v~impaore.d.. Or '~ iIP-:p~eting,.
'Water quality. Jn 9.ddiiiQ14 the ~Discharger ~Us~ 'coinplete a, .study 10
Oet:enninethe degre.eof anYhydnuWc.conilectionbetween,
surface W~r
and the seepage pits. SubJ,pittArof a .plan for moQitorlng ground~atei. '
54'
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. ". -ThE;MahouBay Gompany
.' Malibu Colony Plaza '
Page 9
Order 1':1'0..OO-f82
WIDch is subject tri 1he appro-viil 'of the
30.·2001.
".
Exeautive Officer. is due bY~ch
,
.
A 'sut:face w:~ter-'mo¢td$g, proW:-am sii~, be .~lishe:d sothar stnface
. water;ifp~ent.. in,Wmter.Canyon cim..be mlfaSur~ s~I~
~ analyzed,
to ~ne
if discParges from tb.e·PI~ have iinpacted or ar~ impacting
'. ~ter. qwility. Submittal of ap~' for,monitoring SUI'fiu;e ~
•. ~Gh is
. subjem to theapproval.of the &'ecutive Officer. is due oyMarch 30. 2001
. .•
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d) "
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Tbe):).iS~aigershaJl provide a~rt
hY~bIlU1£y28~~~l.
.'
. ·2.'.
'.
~
,..
-
;
"
water eOnse.rVatiQ11~d W'aterreuse
,
"
-. Th.e:DiaGha1:ger~·up~
feeal ~onn and~6Il~
to'include ditiinfection'to meet the
liliUt Containea in.B,2 above.ptio.r to'discharge'into
the Seepage pit dispoSalsy6tem, m aceotdance'with Tme Sc~ediII.e O:rd« N()~ 00-
3.
tbe~tis:; ·s~
183. '
4.
The.Di~ehargershan cause'.ihe 1reatQ:lCni:,sy~ to U¢;,~
DOless toon twice .
. .d.w:iJ;tg the life ,ot~e ~
by an Dmpector t~·be :re~ed and ~g~ested by the
" ]).i$ch'iugerhui:subject·to the8:PP£9vaf, of ~e EXec1:ltive ,Offi~~
, '
.~.
.$.
."~
-:...
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: " 1D tbenext~nitorlngrepqrt.
..-.
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...
.,'
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incJ*~ereasonS
rnadQili91i;1ti~~9rt.Bhall-:"a1BQ
. fot· th~ .violationS oJt'a4\r~e CQilditiQns. the steps;oemg; f8bm to. 'con-eet.the
.probleD;J. (inclUding dariJs thereof).- and the steps beiiig taken !D preveUt &
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to
. The;Piicha:r.ger·sIiallnotify thisR~OnaIBoard' within 24 hours of any adv~e
condiu<)Q-38 a resIJ1t ~
the disch~
of ~~water from this faciJ.if3'; 'Written '
cQnfinnation. ahaU folloWwitbin one week. This -itifotmation shalibe CQilfinned
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I>ischarger sluill.cor.Q.ply With alI 3pplieal>Ie teq~inentS with n:spect
No. 8S5. "
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~bJy'Bijl
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,by t¥lephone. of
JlOUfy tbe;RegiQDaJ B.ofu.q~thin ~ h~.
,,atiyb~as~,;-oc suffiicmg:ot \,V_ Written cOnfinnafi~ ~aIJ to!1QWwi~n O!le'
week and shal1.incltId¢ infotmafio'n :relative ip.the. loc::anon{s), estimated 'Volume;
.' . date'aQdtime. dtnation. ;~,
aad measures ~
to',eff'eet ,cl.ean~ ~d measures
...
,1aken·~;jn,veittaIJ.Y~·
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This Order ooes. not atle~~ aim·,~1lSlODity of the" Discll3tger to 9btBin othe;r ,.'
~.
local." ~~, ~' federal ~peonjts tQ ~
,facilities necessaty for
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JlieMallou.Bay Company
M:aIibn Colony Plaza
. Page 10
. Order No. 00-182
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Cdmpli~~. w,ith'this Order; nor does this d:rder prevent ~sition
of additional, .
srandards. requirements. or conW"lions by llnyotherreguIatory agency. '
.
Any dischazge. of W~water from the septic system.· (inclndingtbe' yvitstew.ate~
..cOl1~on. system)" at ;my, pOint Qth~than 'specifically deScribed in tlrls. Order is .
probibited, and C9~titutes a violatiOn of the 0rQer.
9.
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Afternotiee and oppo~i:y fora~pg.
for causes ineluQiI.:lg•.but ~otlimited. to:
..b)
Obtaiping 'this Oriier
facts· im.d
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11.
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Order may be terminated or modified'
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.
by misre,presentatloll, or failure to' disclqse,au reJWant
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11
A change in ~,
in~e.:r.eduhtion
~ditiolI that reqUires; ~t\1~ a ~~
or'~J;manent
elimiitation: of the ~orized discharge.
or
.
. The ci.s¢~er shall furnish, withiIla, reasonabfu
~any.infomiiition the
Regional Board may ieq~
to~e
whether eanse exists, foc J;D.odif.ying,
reyokilig,~d reiMuing. or tCirinins(ing this Order.. The :b~charger spall ~o furnish
' to the RegiOnal'BOiJrd.~npQn ~
copieS, Q~ICcoirls requUea'to be ~
by thiS
~I
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this
Order.'
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. . 12., " TheJil~charger shall fil~'a;wHtteJi:repoi:t witll tIiis Regionalll€liitd iI! such tiPJ~:~
~e" dally w~~, flow has reached or exCeeded 40_000. gpd, The:. report sball detail .
. p~viaioiJs ~ .cope w,ith excess fl9WS. pro.vid¢do, hQwever.tbBk the fOt:egoing sf»ill
".
..- :~()tbe?COIiSttUed'ro.alIovifiow ~ excess Qf 45J)OO'gpd.
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SbolJl<imoiJit"m,g do!aindicaleimpaclsiO~ornead;lyilllfl\ee.~
IIie
Disch. shaIlsubniit, witlja"'9() days. demnnination of Ihe P1VlJIelll, plans
" , ' for measures tliatwill OOta1ceIi. or have been taken; Jo mitigatC any long4etDleffects
:that may r;esult frointhe subsurface disposal.ofw~. Any wateJ; quality impaCt to
' .suiface sad grounllw~-such.asl
btifnot'lfulited.to,
Iisksr.o human health. from
pathogens. and' accclerated t;UfiQphj~on bfsUrface watenfftoni nutIieUi:$in 'wast€?
~3teIs'shall be rqyorted . .
.
14~ "., This Order inclu~
l<St3ndard ~ons
Applicable to ~Waste l)~arge
Requi.retnents (Nove~ber 7.!99!l-).,/t .If ~fhere. i$ any conflict ',between, pr0visio~
s~
herem and the tfStandareJ, ~visions. Ihose proVisiaQ8- stated herem Will
II
-'preyail.
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The Mafibu·lJay CompailyMalibu Colan:y. Plaza
:~No.
OO~182.
15.
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Page 11
The Discharger shan· .~mi.t. to ~ RegioIi~lBoard,' within i8U days of the adoption
'of ·thisO~r,
procedures" that win be, or have. "been, ·takento ensure that no
.dischaIie or recycling. of .any'~ed
or partially.treated sewage, will result from .
. the ireatm~ fiiciJity" in th~ eventof,equi~ent'failwe~
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Th~e Waste discharge re9UUements CQntain~jn tbis Ordet will remain i~ effect lor
a pedod of 'fiw (5) years after~·
to a Pischargeriiy
the -n.egional Board
&ect1tiVt Ofiicer.
Should: the ])iscluu;ger Wish to continue discJ:im;gingthe
'. . gl'Ot!ildwat:er nnelet' the tenns alid-cooditlQps GQJltained in thiS Ordei:- for a pedoc;l of
. - . J:!me"in excess ·of five YeatS,· the Discharge!: lllust· file ~. "up~ted~rt
of Waste .
J¥sCharge With. this: RegiQIl81 B~
nola~
tIlil:ri'l80 CaY$ in advaoce"Qf the "
expiration date of tile -Qrder, fqr COQ~idetafiOn of ~SWl1lceof new orreYised waste
. 'd\s~
.requirements."" Any iIi~'of
waste. five y~ .a{ter the~··of-·
" .issuarice, Without obtaining new; WijStc DisCharge ~ti;ftoni
the RegionuI
" Board~ a violatiOn'of Califomi,aWl\ter Code SeqtiOJi 13264. The Jlegjonal Bbal;4
: .... .....••ate':"'-I;
... .... ":t..~ n'on A'-/rany
.f;,..
non ~mp.
. .' lim·
. "is" authorized; " to take
"
appropn"
_0J;Cen1e.n:
... ce, With
.. .
thisp;:ov}$on incln~·~;ofpena;lties.
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with WaterCo4e Section i~263(g).these requirements shall ,not
vesreqiight to edntinut1>.to discluuge. .A1l~~
Qfwast~ bito the waters
: of the state ate prlvile.ges, ·n.otrlgh~ and'are-subj~ tdrescission or modificatien.
~
.. ~ Demns ;(..DiC~n, ~veOfficer,
do heteby eerluytJi'at the fOU?go~"iS a :fulL true, and
~• CQJ,l:eCtcopy of an QpJ¢r .pted by t1:ie ~o.mia&giOii;il WaterQua'iity.Contro1 :Board.·Los
;.... A1lgdes&gi~·on DeCember 7,2000.' ..'
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. :- . DemiisLDicketSon
. . ExecutiVe Officer
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aOARD
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LOS,ANCELES
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RSGIONALWATEiR.
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,QUAWi'(CONTROL,
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.015 Miles
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. 'MaH~uWater , .,
Po.uution
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PROVISIONS' "
STANDARD
.APPLICABLE
1.
TO WASTE
DISCI-IARGE REQUIREMENTS
dl1rY TO COMPLY
., ~
cgscha;ger must ~mpry With all Conditi~ns .~fth~e wast~ disCha~ge-feqUir~ments_
. A resl?en~ibfep'arty.h?s ~
etesiQliated in ftte .0000~Jar~project. and isfegaUy bound
.' . 'to' mail1fairi'1he rnonif~rfng program. a~d Pemul Violafia~ may re~
iO enforcement
-:- actio"!? Ir~ucfmg ,RegiC?ilal B9alif'orclers"or: ~it
OIUEirs requiring corr¢dive ~c;fion Or .
.•' irilPOSR1g,.ciVilIllonetary If~ifif:y•.or m~cfdicafi9n -orre\l'Oq:lti,on,dffh~e waste d'rsCharge
re"quirements byihe RegiatJaf BO;;ifd.[ewe Se~
1326.1. 13~1 132f9. 132os. 13300.
133.01. 13304.1.3340, 1~J
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. :GENERAL
PROl:ilBmON
:N~er the treatm~nt nor the d"~e
of'Waste shaH creaie S' poHUfiGtl.contamination
or nuisance. 'as d$fin'~by
SecU:ciri ,13950 of fhe' C!afifOrqfa Water Code (CWC).' [",&~.C·
,$edJon ·5.411,ewe S~ction'13263]
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'3.
.
~ VAILAEUlfTY
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, "A.capy of ffiese waste c:rr$.Pl'iarge r~.uire:men~ ~aJ1:()e ma,infqjned,afU1e .9i'scharge faa1ity
~d be aV~i1abl~ at aUtimes,t~,()Peratin~ pe(SqnAe~ [ewe S~~n.13263J
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CHANGEIN'OyYNERS.HIP
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The discharger must nQtify the :Execum,e "Offic"eJ:.,inWfiting C)t 'easta:o d~Ysm advance
pi-o~~
~nsfer of this' O~e,:"s respoi1Si~Iily'aOd CQ\t~rageto a ,new d;scharg~r.
Th~ notic?, must incltide !!l WiItten agr~em~ntbelween
1I:!eexisUilg ~!ld new ,disr:;h.atg~
~ntainjhg ,a. specific date 'f~t 'fbe ,transfer of".-a-.rs '()rde~s responsibmtY C)nd. CQV'erage '
,'- 'fjelweell-:fhe cu{£'en~dis~er
a~J(;Uhe,new olSChatger. 1lUs ag~em~J~D
inClude an
act.mow(edgement
'tEte, E!Xfsting QlScharger isJi~e for violations up.;to,fheitansfer
crate
.... ; -.and that die flew t:(1$¢ha"!Jeris'Ii$b.lefrom Ute 1nmsfer date 00. -[eWe ~ons-13267 !lfld
13i6S)
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".of ~
that
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-, In ,1be'everil,of~ material'Gbang~ifJtti~
'-' SedlOR 13~{c)~A
.(a)·
.,
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d.iaracter: locatiOn. ~ vokime
of a.dischatge.tbe
a. ~ ,RepOrt of Waste Discharge...··[CWC· ..,
m)teri~ cfJcl!'ge Includ~;bUtis ~6t limited to, ft)e folfowiOO;
. , ,diSChetu9~rshaUfire:~With.
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·~5.·
ftiis, R~gionaf~
Additionof' a major iridusbiatwaste (flSChatge to a 'discharge-of. ess~ally
doi.1e,stic ~Wage.,or ~e·'a.ddifl~of a llew prQCes$ ~Product by..an industrial
faetlity resulting in a.~~
in tile char;a~'of the Waste_ .
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'Noyemtief 7"199Q '
WDR:
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. _ Standard 'Provi$ions Applicable 'to .
" - W~ste Ois~rge Reql!irem~
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Si9nifjca~t-'charig,~ .in'.dispoSaI· method •. e.g;.cl1ang~ from a land -<f~prisaI1c? a
, " dir~cl'd'"lS~e
Y.tateF. or i:::hange -in tf:te method of. treatment' which wo.uld
., .. " significantly ,att~r'1he Characteristics of1he waste.
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" ~ignificanl,~aiig,~.in -the disposaf'ar'*t,
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:(c)
'e.g,. mOYi('lg. the" discharge'to "~lf1other_ .
to'? 5.~nage area;:I:. a different waler bQdy.' ~r to' a, 'atsposal .area significaJ.1ttY, , .:": .l..ktloVei'i frb~.lite -oPmnai .~rea poleritiallycaus.ing" different wat~r quality <;>f
.
, ,', nu.isa~ce problems.·
,
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[nerease ,in Row' beyon~, that specified, in. the wa~
fncrease'UJ~aor~p~
in:1hewaSfe t1i~a~
, ".: '-6:'
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d"1S~rge requirements_
to',~ used for ~o1idWasje'~ISPQ$al
bey~nd thiit s~ecified,
~uiretnents. IGOR Tlfle 23 SeCtion~1OI
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1'hes~~~te, disdlarge 'reqUirements are subject~o rfPtl1"ew anq revisipR by the Rt;!iQional' •
,. 'Bo1;ird.. lOOR Seqion 13263}
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.. ',7 •• ~ :ri:~MINAnON.:
-. Y\Ih~e (h~d"IS~fgea: ~or;nes,awate·that
it fail~t()"submit anyre(evant fa$'in a.R~ort
,()f~e~c~aqje
er s~bini~t~d'incorrect i~farri1atlonin a Report C?fWast~,Dis~arse or
",in ~ny report to the R~9ional
it,s~l1all promptly stibr11it suchfa6ts;'or information:
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[eWC; S,~ctiOIis13260 .ancl1326!l"
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\fESTED'RIGHrS'
~.
•This" O('der dOe$ Oo.~~vey
"imy. property.
rights"
o.f ~ny$or1'-O(any ~dtisive
-
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privileges;.
.'11le r~qUire(ll~ts.p~d
~i-ein.dc> n~t autf:tqjize~"g3nvri~an!J.f. any: ad. Causing
, iFijurYJo persons gr pro~~, do nof proted the d"fScharger from his Iiabil"atyund~rF~liralt
..
'Stafe 'orlQeaJ ~aws. nOr do 1I1,ey~te.
a vest~, rJ,ght for the disChargeJ:to' bontinue the"
." ." " '~,dis~e..;[CW;::·S"~
1~{g))
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.' _".~9~-, ~EVER!}BtUTY
'.
prOVJsionsoi'·iteeseWaste~$etmm.~,requirein~fS ares~erabl~~"it~ prQvisi~
~ith~e
. ~j~are
fo~nd' Invtdid;ffie .remainder'of theserequiremenfsshaU not be aff~eted;
, [Cwcse~iJn.921r
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Sfanq;;ird ProvisiOO.$ Applicable to
W~ste Discharge
10.
Requirements
OPERATIONAND MAINTENANCE.
s
· Tile d! 9harger s~au. at aU·tirij~. prope~1); op~r:cite'and maintain aUfaarltieS ancl systems:
... 9f tJ"ea!ment C!O~..oont~1 (and related ~PPUfJehances) wh~ch areoinsfalled Qfusecl by tHe
. di~atger
leii a~ie.ve cqmpti'ance With·ttJncfrfiQosot this Order: 'P~er operation and
rnaiJ:lt~
indu- :.:i- ~rr;:}(::tivepe.rfon.r.ance. adequaf~ furicfif!9,adequate ?perafor ~afflqg
and ;lfaining._ and~d:-"'-i.'!~te .l.abofC!lory arid progess ..controls indl,lc;fr':lgapPFOPo~te quality
assuta~
proce,dures:'
Thi~ provision I"eQl4res the. -operation·
backup or auxiliary
faciflties ~simiiar
syste:ms -only when lle~ssary to ?Chiev~, ·Compr~n~ With the
·· conCfiqons
.0
. of Ulis Order. [~WC Seetioh132~(0J
or
'.
011.. '. HAZAROOtJs
RElEASES
."
Is
-.-'
. - ~p.~for
a-:dischafge v!hich in c:ompJiance.with these ~ste[li$Charge r~qqiremeitts.
~ . '. a:,i1y' p.erson wh?: :without regard f~ int$lt o.r.negligence •. cati_~J'S·or permits, arjy hazi!n:JQus
. ~ub~~
or sewage ~oJ;1e dlsch~rgOOin·~ on' ~y waters of !h~.stat~,or.iD~arg.eFf .or .
·
" ~.~osited where. it is. or' pr:ob~ry.Wifr:b~. di~ebargea it:J or Oil ~
wakr~ of the· ~tate.
°
. sharI. as· soon
as fa)· thafp~l;SOn haskqowledge
of ·the cfrscl'iarge:(b) nofifi~til)n
. pos~(bl~i ~nC{ ·(c) i)o.fi~n
can ,be.prbvided\Yfthout.substan(fal'y im'pecrlng:Cf~ntlP or:
Otl1er'JI~m~rgellCYt.neasur~. imO)edi~efy' nbtif;Ylhe Olfi~ of Emetgency' S.ervices Qf the
· : !ft~ctiarg~·.
in ~rd:ariC;e. Wl1h the. sphl reportirlg provisiB~· ~f ihe "Suite toXic di~t;lsler
.. contingency plan' qdop1ecJpurstJ?tit .fq Arfr,de 8.7 (i:Qmmehann with $ecfion' 857 •••.
_7:).p.f
Chapter ;7 of Dii~iC)n 1 of T:ltle ~. ofth~ Gov~lT\en[ ·Code. ~d irnmed~eIY n.cUtY ~e
Stale' Soard orille appropnaie Regicinat f!o.{l~ oltha. dischi,uge.. .~. provision, 06es· net.
requir~re..Portingof
any ·discharge of Ies,s than a,rePortal:!~ quantity as providec:1 for" under
. sUbdivisions (t)antl (g) ofSeCUoh 13271·ofth~ W::ateF~~e unfes!t.the trlScharget'is in'
.
o· viOlation' of a .prohibition 0in 1he aPplicable Waf~.r QualitY Confrol platt. [ewe 0S~n
••
1.3271 (a)}
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reg~ernenls.
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. "Extept for:a OtSc{iarge Which.is in ~prUiln~ "!ifh .Chase~~.~ar9~·
• Cilt;1Y perSon who ~w.fthout~.d(o_ in~f
or ne9Jl'genQe.eaus~~ Qr·~.
any ~iI er
: .peimr(fUtn product to be crsimargediA"Or on allY waters (If fhe S1a~. or:discha.rg~Dr
"gfjP<?sit~dwltere it" is, or. P.fQIlably .~", b,. dtSC'hargeci in Or. On any Wafers £Jf Ute State.
. osh~li as $oon as(~ such P.~QJl has°t:n~edae: ~f:the:cr~~~.".(b}_flotifica~0!l--i~
'., . .possjl;lte•.a~~ eel 110iifjc:afiOO. -esabe~i;f~
witft0lll Sub~jf~~1InpecfIQg
d~anup or
'other emergency measures" fmm~at~1y. notify the Office MEmemency
i;>f.fhe
diseharge!naCcordan~ with. the spili repQr1ingprovisiOnoffhe ~at~.OiI ~iilcontiRg~·ncy
plan adop~ ptU'$uant to,°Ar1!cle 3.5 (tonltnenq"g with S~~n 8574-.1} (!).fChapter 7 of
.. Pivi;sion 10f Title 2 of the GovemmC!lt 00de. ..1bi~ .proViSiondoes not require reporting
· .df ~ny. dischClQl~ of ~s ChaR 42 aaJlaos: .\QlIe5$ tfle cfl$Charge is mso required .to,be
•
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reported' pursuant to Seeuon311.ot tfJeCfean Wafer Ac::tOr the ~aJYe
is in. vieTa1i~n
of a. prohibition in ·ih~ applica~fe Water Quaflfy-Control.plan. {ewe Section .13272] ..
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.' Stan"daro prqYi$1ons Applicable. to
, ' Waste OiSchargeR~guire~ents
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ENTRY AND INSPECTION
'-
The di~cJiarg~ ~h~rall~ the_RegiO~aJa~
ora~ ~~Orized cel'resentativ~ uilO~'·th~
.presentation t;'lf ~deritiafs .and Other d(JcUm~hts as may be requ!red by layI•.to:
the ~c;ha"_.:'''';:•.l'reiiuses V41etea~'~fiUlaJed:faCliity er acti\dtyis
or
r~cordsmuslbe
ic~pt Ul\der file conditions of this
Enter'l1pori
lo~~ or-~iiduCf.e4.
Om~ .
:th~e
.
to.and QOPy~. ~t reasonab~ JUnes. any:reCon:ls
un£ferthe
crinartions
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.
.
. of .thiS Order;
-..
-0
, 'Ha11~access
that must be kepf
'
In~:e~ at reaScmabl~ times any faClTdi~. equipment ,r~d"lIlg mQ~itOrin9 ~rid
~ofitrol<eqqipment}&-pra6iiee$i 'or operationS regulated of mqtiired under this Order;
and ':.
,.
.. .
•
..
.
..
'..
.
~r:f1!.Orijfo.t a1 reas~~bf~ ti(neStfo;-Qie :pt.Ir.pqseso(asSurin~ compliam:e
wit.hthis .Ordet.~:oras. ~erWise~utliariz~c! by .tha c;81ifQmiaW~rCbde.
~ny
Cd) "S'ampl£!
. ~ubstarices
.
.
14~' 'MQMrr'O~G
or.parameters ~lanylocatiQf;L [Cwe'$~ction·~32671:
.
.,
'.
' .
·PROG~M AND Dat'f.CES
shan" f..,rne.-h~ under eena;ty qf p~'rfury.'tecbnical monitoM9 program
rep9rts;~ChJ:epOr1.Ssh~1l ~ ~mitted inaecordance·wifh
speeiijcalions prep,ared by,
,l;:Xe~~ -Officer, v41icb' sf~~~!ions ~re subject tl3. period)o.revisiROS as, mSY:'pe
Th~ dis~arger
.ne
. ..~..
"~warranted.1CWC Seqtion1~
.
....
."'
,"
.
..
.:
_.
.
..
,.: AU monitsOngAnstniments ,and deVices uSecf,.bY the cn~rgEir
to fU~lf' the ,pi-e$~~e~
mon'itonngprogram,shall ·IJ~p[ope;rI)! ma~nlfi;lin~
~d ·~Iilmlt~"s as ,ne~;;uy 'tQ ~JtSUre
-,fheir coiltinued ;;ICCQraoy. AII.flOw meastirerolftlt deVU;es ShaD. be Calibrated at iciaSt. once
.
, '.. per.yEiar.ormorefrequently.~tq .enS~ confltnle~ a~(::y
of thedevi~.·
Annually. ·1J.le
.;.r: .':
"disChaf9et~haHs~J1litl\i)ltieEx~e·OfJieer;;lwrittenSUitemet1t.sigriedby
a regl~~red
.
.' " '~f~iQnar
engineer. 'eertifYing 1Ilat~1 fl~ m~a~lIrement ~evtees have been·eaUbrated·
,-: .: ,: . and'wit[ re1iablg acl1i'eve the aCcpIaCY require<l , ,.'
,.
~
".
0,'
."
~uiedby
the~~Oilal8oard
Exe~~
officer. aU;maly$ess~aJl be''" -eonOqCted at ,a1abora~:'~ed
:fo{ stich analyses byth~State Q~padrilef;ll'of H~91ih'
a~"The
Region'at Bo~ ExeQ:Jli.ve
Oftic;ermav allQw use qf anf:Jn~rtified' labo~tory
. . :" ..",'iJlilesso~~e
<
~der ~ceptiortat cir:cumstances ••,sUdT!is~E9) 1be clOsest JabotatOiy'1o the'i'nt?Jlitoring"
outside ihe ~
bour)daiies an(l therefore nQt, subject' to certif(q:ltion. AU
~es
.shan be reqWted. to be· con4~cte.d·iil. accOrdanoe iMQl··1he latest-edition bf
.' lo¢i;iJQn is
,"
"
'
!'Guidelines I;stabRShing TE}Si procedures- f~ AnatY~{Jt PpRub.mts- (40 ·CFR..P.C!t1 136)
'p'!"Omt}lg3ted by tIie u.s..EtMronmental Pro~on
AQency.: [ccRTrUe23.:Section" 22$0)
.-
I.
63
..
.'
~tandard Provisions Applicable. to _
. WaSte DisCharge Requirements
_
15.
,TREATMENTFAILURE
.
Iri.~i1 enfoi:cement .acfion."ilshalfl'!ot
tie a def~f$ fQI.: the .discI:1arserthat it would have
been n~ssary.
to Halt or to ~uce
fh~ penniUed ~div!tY in order·tt;) maintain compliance
·with this Otder. Upon reducfioq,,:~s.· or failr:n ofilie, fr~lment facili!Y. tha arscharger .
"~shaJl:,to 'P:tl? exten.l ~~ry
lB..maintain 'COr. )r:-!-n~ wilh1his Order. comrolproduction
'
or"all discharges,
cir~jhi
Until jJJefacilily'i$ ~~d.
Or an altemative method of tre~fment
is Pr.0videct This provision cwprteS;'"(ar exam.pre;Y4ten the primary SQ~rce of power ofthe
!rea.tment faClTIf,y' fails. is reducet:t. or is lest. [CWe Seclibi113263{t;)] ~
.
.
. ~ . 'j6.
.·D1SCHARGES-:rONAVIGABLEWAfERS
. Ai,y person
~chaf!1lin9 or proposingt~~~argete
navigabl~·wai:e~rrOm a.poinlsour~
{exCQpt·(or clisbharge oldredge.d or fiI',material' $~Iect W,Sec;tion 404of·th~ Clean Water
'cr~ch~fge sl:IbjeC:t.fh !! g~ei:ai NPDES.permit) m~st file an NPDE~ ~rmjt
application with ~. Re.9i(JnEll·~ard. ·leeR TdI~ 2 secti.Qn 22357]
.
. '.
" Ad.~d
•
'17.
'.
••
•
ENDANGERMENT
. ..
-.
-
.0
'.
•
•
<
T.O- HEAL.THAND
'ENViRONMENT
-.-."
-
.
-
.
e
-Th~ disch1'lfQ r '~alt repqrf mw n(m~~Ji~~
••
•
,"
, .
Y4ltctimay enf;fa.nger heai~ or:th~
,.. -"e
t1r-~s'UchinfGttnafiOnshali
be'
.~nvlrol1m
ru1r..
., '..
.
p'tovided
'.
. velbalil.
,. Y. to the
....•.. Executive .. Officer
·wi:JhTIi24 'hours frOm th-e Urtie·fhe. dischar.ger be~mes aware of the QFCUmstaltces. A
.written s~bri1ission Sh~n afso- be ,p.ravjded· within liye days Qf the time :the discllaf;Qer
pecomes .aw;:ue o{ the cirl;tI('ftStan~. The Written sUbmis!!iPQ,Sha!' coQtain a<te!icription.
" 0[. fhje ngnQamPliaj\ce andjt'S' cause; the' pelieXi of noncofflP~~1
inolucrmgex~ct dates
.?nd ,timesi' anc(,,if th~ no'Q.~rnPicin'efif 'lias .nof been COJTed,~; tb.~a"ficipa.ed· .time it ;is
· ~xpe<;:ted' to continue .cU1d:'~
faken,-or planned to reduce. eliminate: and prevent.
· reCurrence of the 'rioncoinpliariCe..-1'TIe exeCutive oft,i~. or an a~Qrn;ed;represBntatiy'e •
.may.waive theWlitten·~on,~EHJy.-.case
basis:if ..theoralrepoft.has
been reeeIvf*J.
' wiU1in·24 hE!t#$. lhe foHQWing occ;u~s}
must.be,. fepE)rted to 1he .Exec:ufiv;e, Officer.
: within 24 hOurs:
•
':l
.
:
",'"
(.
"
·
..
'
'. ~ ~ ~cb)-. '. ~
" .:.".. .~..
.:.'
~.
;
(C)
18.
EfI$CJ1arge
qf~ft:d
'..
resulting ft~sewet
Ol'"~treatEl("'~er
obstrudio,\ sUrdt~rgem.: any ~iher~n~":
.
..
.;
.
.
line breaks •.
~
Any freaUpent plant upset wI1ich'cau~$ the efflue~t:~tati;m pf·ihis
·~xe¢eCl~d.(CWCSedions-13263 and 1a267]
•.
~~(
1o,
bf'
MAINTENANCE OFRECOROS
dis~argei shah 'r~latri r:ec:oro~ 9f aD nwnUoring inf~alion
inCI",cfing aU .~Iibration
: .and mainten~:te<;ords.
alIOriginat stdp Chart ie¢tdings,forcontmlJbus
,momtoririg
. instfUmenlaU9~·copies
of
au
repons.·reqpired
by·thiS
Order.
and
~rds.
of"'lU
daJ~ used,'
.
..'
.
.~
.. ",. The
.
w-s
'.
(i4
r
':Sfa04a~oProvisions
to
Appfrcable
..
.'
. Waste Discharge ~equifements
of
. to"C9mpl~te the application ftirtrn$ Ofder •. R.econ:Ts so'all 'be mai~f,ained for a ~inimum
~fh~e years f~1he' date oftti'e ~.P~. trteasutement-. report. or ~pli~fiqn. This penod
';' maY be ·eXlende.d.dgriog: the coursepfai)yunreSolVed
rltigaJion reg3tding this alS¢harge
" •or:~enirequest:d·tii1he
(a)
.
.•
'(b)
=me ¢.rte;
R.egiClflCd~Boa~-Exee.utive
Off!cer.·
•. : ..,.
place; .Md:'time
~
...:
.
.
of sampfmg or riJeas~r~ments;
..
The inc:fIViCfuaf(sj·whopenoffi:iedtheSE;tmpling or meaSlirements;
"
. (~_
The-cfa.te{~)9ftafys.es. ~
.
-pertC?mied;
0;
e.
(ti). ,ibe'in~M~~I(S) whci.peIfO~~CHh~anatys~s;
'. .
TheanatYucafte'qhniqueS
mefhod·~tf;
~Ad
or
fer
"
(fJ
,Th~'resultsef
(a)
Idl.,applfcafion··reports.Or-·infon1la.fi~nto' be submitt~d' t{): the 'exeCUtive"Officershali
be sign'ed andcetfified·=:ts klUe.Ws:
.
,
. ,
s~; analySes.
..
(1)
.•
-
•
."
eo
Fora corporation -:-bya.prfncipal exe-cufive offi~r or al'epsllhe.level
~iCePresld~
."
0
..(2)
For
,
.'
'0
'.
°
:{3)
'.:
"
a partnership or ;.sofe ·prop·ri~tOl'$hiP--:
. pn,p~.
respectively.
".
•••••
:
by a og~neriU paitner
'.
.
.'
•
"
:..
••
1
.:
'I": ..
'
• F~: a mliniCipr,Wty. state.fe4erai, or ~tl1erpt;lblicag~oey ...; 'by either a
ptint:j)al e.x~e
'Offi~.0f1'anl<ing· ef~tlffic;ia{.·
':.."
,
• "
.
II)
.
. 1l1lt·~"~InWri~~~a~~lil~(..)
·Q(:fhisp~n;
".
-. @l
°
'.'
.
.
.
.
.
Th~ written authoriZatioflis
"subn1itIed la;fhe Executiveomcer,;
-.
.
°
'.
.
.',
.....
'Ant ~n
signlfl9 a Qocumenf'~nder thisSdon
~rtiticaQon:.
00
"
'0
....
.
and
.:.
..
.
The .auUtQ.riZafiorf. ~~es
. eith~M '.individual or:;iosifittq havifl!;J
responsibirrty. for the DvemU op'etation' of fh.e reiJuJated faCilitY Qr .activity;
(2)
..
or the ."
"
0
•.
•
of
•
0
". ~:.~~i
"A:4~ly~~~.~ent,~.of~~~and~"at~in'~~~Ph(a)c)fft1i~""·
..- . :.~ . . ",".proVision may'slgn documents If;
f
.
.
65
..,..
~hali' ~
.
.
~
fonowing
'
..
. ~ta_Adard- Provi~ions Applicable to
Waste "Discharge Requirements
-
'" ~
under. pen<:2lty.oL'1aW that
fcurnTaar-~ the irif~nn~tiQn
~~~
-.
are
20.
.'
..
OPERA TO'R CERTlACATfON
St,r~e:.rV!sors
.andopera~Ol'S Cff mun~
~stewat:::r ~atmen! plqn~ ~nd' p~feJi
~e~
faalifles regur~ed,by ·the P.UC.~eC;f"1Othe. freatm~flt or 'reclamat,on 0{ S~ge and
industrial waste. s,hal(poS$~s a certirJCaie o(appioPiiu{e grade, in acc:o~ee
'WithTItt~.
.23. bauforrii~ ~d~ of-Regujafiofls Sect~on 36"80. StateQpaidSmaya~pt,~rien(;~
...
ill. lieu Ofq~~f;iCl!'l.traiOing.
In lieu(jf ~.-P.fOperfY, .,ceifified·wastewater ~lJt
PJ~nt
operiltor."1he 31ale Soafd in·ay approv~ use of a ~\;Wlfer ~fte!ibnent plant' tJperator
~ppropriaie
grade ceJ1!fied.l>y 1heState Departn:\f;mt .QfJ.,feaiihServl¢es.where reclamation:is inv:olvect
.'
..
.
exarriiD~d and, am
m..thi.{;documeQtand a~ atiadlments
- an~that. b~~ pOrtly inq~iJyQf:fh9S~inalVidyalS iriimeQlately re$pon~ible
for obt<:tiaio9Jb~ ih(0fl1U!ti0rl.·1 ber.cvefh!lt the information.is troe.act:urale~
.- .a~cr.COI'!1Pl~le•..1a~~rethatttiere
significant peiv!!fi,"'";i for submitting "
false in16~on.
inotllding the PO§Sif;Jilityof fine and Jill;· "' :",i!,leli£ [eWe
. 'Section~' 13263.-1~267. ~nd'13268]a
....
.
_
-r _
.""
-.
--
~ havepersbnally
".'
of_
..
. :Ea01lJlJantshalf
be
.'
';peimoo
on<l mainlained In ••••• r;I;mce.wmi lb. Operation -••••• _
'. m11infenan'ce .rnaQual ~prepared .. by the municipality t~rough 'llie Clean Water Grant
. Prog.ram. [~WC rifle 23. Se(:liqn m3(i:ij] . •
Aoprr.oNAL
puaUCLYOWNED
" ". '21.
.
~
~i"!bidy ~~.
I
PROVlSl0NS·A.PPuCAari.To
TREAl1IIf6NT WOfil<s'· AOEQUA'1E CAPACITY
~~~_,,;;ic
Wast~
reach-~
.,.,;q,tR,~.
tha QisChargershaU notifY the Regional Bearo. A copy of such notification shall. be .
s~nt to appll;Ip~te JoCal elet;t~~fflCials. ~l' p.ennitting ~e.nci@$.and 'tit¢. p~s$.' The .
d"~af9ermust
den1pri$!rat~, ~a;dequate
stepS'are I)emgt8Jcerilo i\j:fdres$ ~ p;ap2£ity
. :llrobJem. .ihe·dischalller.shaD
subhU'l a teChrrical ~ort t<l·~ Re~ionalaoa!Jf !ihOWinr;
. flow' ~QrLlJ'11es will· be. priWented ·from ~
CilIpacily.or hOw capacity wiD be
yE!~
'.
~aysafter.proViding:nolificatioo·tothe RegiQ.naJJ30artlIOJ;wi~i;t1~.
receipt of notifj~Qn fl'Oq1"the Re~ronal.6oqitf. of a finding: that the treatment
-. prant WIllreach capac:if1.~in·roury~1'$.
The' fim~'for filIngthe Il!qtiire<f ~ec:utepOl't
. - ¥icreased,Within120
.
.'
.d~s
after
"may b~ extendecl by Ihe-Regfonal Beard. A.r ~eosioiJ ~f 30 days ~
be granted bY the
Executiv~ Officer.and lon~ ext~i6ns may" be 9fanted by the' Regio~aJ Board itself~
. . [CC~Tdte 23. Sediora2232j
,
:..
.• ··0 .••
.
.
..
I
i
66
.' :ST.A.TE OF cA.lJ:FoRNIA.·
.
J
'.
.
REGIONAL WATER QU~ITY CONTROL -BOARD
. . ' ··CALIFORNIA
.'
•
.,LOSANGE~
•
REGION...
. -
.
AND'JU3PQ~l~i~GPRoGR.AM NO. CI 8158.
·M0m.r0RING
MALlBUBAYcOWANY.
. (Malibtt.COIOIlY"Plaza)
. (FileNo. 00..(65)
......
}4alibi:l.B~y ComPany (hereinafter Dischm:ger) shall implenientthismoo~t~rlng prograni for the
Malibn ColonYPlazaJio ]afer(han March 31, 2001. MofiitoDitgreports shallbe submitte4:by.the
. dateS in th~f61l0wmgschedule: .
. •
".
.
.
'..
"
'The
.
Report due.
Rer;oIting PeRm
JlJliuaiy- Mittch
A.pril-june .
July ~ Septem~ .
. Ocb?'ber-~e~ber
April 15
July 15
Oct~ber.15'
r~ttary 15
fuStm6irl~g
shall
.0- ... repott under this
•. program
''': _'.
. . '~y J~
~. subrilitted
•
'.-
by Aprll.
15, ~ooi.
30 !k'of each year, 'begjIurlng J~wuy
3(}, 2004. 'tb~D"~ger
sh.aII~bmi~' an annual
·The report sha:l1 contain S~es
of tb.e monitoring data obtafned during
. ...~the-pre.viou$c~en(}ar Year. In addittoD,1!te ~Sha1l.~
the coIPPU~~rc:coId and" .'
. tbecoirecti;~e aCtions taken or planned. which. may·be neededi'to bring ,f.lle discharge into. full .
~ .... compli~ce Withth~ Wastel)ischa(ge;Requirem.erLts.
.
'.
.
;repart to the.l3oard
I·.
•
•
.'
.A. InflUent Moriitoring
...:·::·)~TJi~·~.~.th~
~y~
lIlJd· ~'~Y~'fI~
~the
. . ·•..···coIlecji.on S¥~~:fo .the septic tank: sjrsrem. ~
Discltar~r.shal1 pi;Qvitie names of any' new.
. . ": dis9~1Jlgets that diBchar&~moo.the- ~tic 'sJ'litem ~ogetb,er with. the' flow and chata.cteriStiC?8 of the,
,.
waste.stf~
.
:So J!ffiuentMonitoririg
~ .. •
=: . •'.' . ...
.
.':
.
.
~
~ed.q6Ierwise:
a ,~Iingstation
''snall; beesblbnSh~ 'at a.l~~on. where .
saD;IPles;Of ~tic syshm 1 effluent
.be ob~ed· poQr to 'disChar~ to the:
.:Beepage Pit disJ>osat;SYSU,m. -.This~QnitoriBg BlidrqK;»rtillg pro&nmi shall also ~pply to th;e
. Unless
can
~....re~tative
-
.,
.
. up~ded~ent
...
-
'I .'.
I·
:;
'-..
sys,tpm.
pmp.ain:
.
.'~e followmgshallcoiIstitute
..
-. the effluent monitoring
.
,
..
.
.
.'
.
.
IThe,tenn~'8YsteIn~~~~
thisd~i~¥eftec;;ttbas;cUmnrly.
the.wastCw_~VesotilYpri~
.
tr~t
tbr.a~of.gi'e3Bei~rs·an&~tk~prior:to<~
iqt&~
pits. 'FheDischar$~
StWJ ~'a
keabnentsystem.tbat'WilJ pr~a
disinfected and seconcJarx1R;ited effl!Ient.
. .
.
"
.
..
..
.
.
67
.
November 20. 2000 .
Revf$ecf December.7; 2000 .
......
Malibu Bay·Company·.
. Monitoring·andRc:poItip.g
.
Program No.
. Constituent
,"Total flow
p~.
$uspende(i SE)lids'
Units·
iaVday
mgIL
.nlgfI.
~idity
.
Total and fecal
~lifonn
:Enter~us.
.NTO
.Tweof
Sample
Minimtim
Frequency
" .of Anal:tsis
recorder
continual
:hIfP.NI1OOmL. gJ:llb'
MPNll00x.DL
tngIL'
'J'otal4i~olved
.
'
mgIL
mgIL
rrigIL
mgfL.
mgIL
.Boron
-. s.ulfate
. .NitIate7N.
. . Nitrlte;;N
weelCly
•.. III,QIlthJY
Qrgarrl.c-nittog~n
'mgIL
. ~b;osphoI1JS ~.
MBAS
.volatile otgimios*
PJ:ioq.ty;po)I~ ~*
iIi!llithly
:!AQPtb!y
. monthly
J:J:l~t:lliy
"monthly
monthly
8ftb
grab
grab
.~
gpW:
graQ.
gtab
•.
.- 1
m,ontbly
JilOntlily .,
mOnthly
monthly'
grab
grab
.
ngIL
s ,
~qntb1y
gab
nigIL
oiIJ:.
. Vplattleand~selPi-
.
gl;ab
mgIL
.mg!L
mgIL
Aminotiii-N.
. weekly
weeIdy
weekly
w~y
".gGib
niglLgJ:ab
.ChlQride
-ChIoclne**
Wecld~ .
:w~y
goili
solids .
.
: Mallbu C«;llo'nyPlaza
....
. grab- .
..gta'b :
grab .
grab -
. 'pHUljits
BODS200c.
- ·000~q'~
.:
'.
cr 8158'
. gtab
,.' , * see pageST..gan~T•.7,far PriOt1tyPqlIqtants
:.
" :1=*If chlorination
disinfection
. .. is ilsedfor
.
.'
..
.
-~
'
.
.
.
.
.
.;,
c. Ground.WatetMomi6Ii~g
A groap,dwateI: mooitrJrlng p{Ogriun shall be d¢Si~ed to ·evaluate. ,~aets' of wastewat~
disCbatg¢ tbtough. the .Seepage pit ~sal
tystetn· on .gi:ouQdwatel:. qtJalitf. In aQd!tiOIlt. the
Discharger JD.~ 'complete a study'to deteimine' the hydtau'lipCQnneqtionbetween
groUil4W~1Q:
i2~
'FQnII ir.ms.cquin>l ~-.t~
-k.
.lhc~ojoaII";"~jp<Iho~
This 12
$u.;.,.
·to.ibe~"",
~•
...J.
d;'-D;NoI....-.
'.'1'
DSl~CQ
--l'penYY-oU!.';> ~6"'~YP
Of?as e; tdtbe,
,
Ex¢CUtive Offieec:tor apProval.-a redUction in S8I0pHng :rre:queUCy.~wetliy ~.JDOntbfy for:~ch of die
paratnetCts. .Any reduction inmoiiitoring frequency m~ llc·support.edby prop(:n)peiaIi~noftb~ wastewater
1reaI:mMtsystem;dUfiogfhe $.1rtllp peri.QcL
'
"
'-~,,,,,s
•.••••••.••••
pen~
,1l~ueut
"""bdWillbed>'
pen.
'.
·~'::""";~the~.;,i.h';"'''·
T-2·
".
68
.'
.. Malibu BayiCompany
....
. 'MQnitorj:n~and Re~gProgrnm
. Malibu. Colony Plaza
No, 8158
nn!ler ·~~ .:disposiJ. system, ;md surface water,
snbmitted to f:hi.$~gi4JJ13lltoard for review hy
Poor to
A groundwater momtoring wOI:l-plan must be
30. 2001 and is subject to approval by the
~i
implementation.. The worlcpta;n shaiI inclUde, at a minimllttl, an
'e~t13tion of the adequacy of1hepropo$ed groondw~ mQDitoring wells to aehieve obj~tives of
.::m~tOcing,J:tconnnendatioQS for ·adaitional 8ro.Undwate}:' mcmltorlng wells. if warranted and the
;ExCQ.UUv¢. 0fflCet;
monitonng ~ells.
;"COrtstiuctioIi. anddevelopIB.ent of groondw~
. 1jbe~rt
must be prepared
~EngindeinJg Geologist, or a
.·hydrogeology.
or
under die diIed:i.o~ of ~ QUifomia Registered Geologist, Certified
Ca1ifomia Registered. Civil Engineer with ~ppropriateexpeiience in
.
grou~dwaiermoni~oringPtO~
:.'Th~fonowing.shaD ~~the
Mimm.umFl"!MJUency,
:Constitu.ent
I:1nits
~.
pHunim
PH
fecal
'Enteroco¢u:;
. ~9D5200C.
"
Anl1D.o~~-N
': Nitmte-N
," :1'otlll ~
C(jIifolll1
Quarterly
MPNllOO~
Quarterly
:MPNf1~mL
Qu~y
'mgIL, '
~~,
.•.•.••••.
l(
~.~
t::;
Q~y
,mgtL
Otganic' tjtr9gen·
tiuanedy
myJL
Q~Y
',-
., P-IWs-l'horaS
MBAS
'. ,.. 'OJD~croQd"4issolved
.In'l/L
.' mWL
solidS)
, "J30iOn
" . . :"
Cbloiide
: , .': ',Chlotin.e~
.. ", .,.,,"
'of Anal iBis·
N"Itrite-N
..'.
.
, Qpartedy'
"~
'Surette
:Prlority poDl;lbmf~
I!1gII..
Quarterly
Quartedy
'. Quarterly'
mgIL
Quarterly
• .....,;,-)f'
Qtiarteriy
.~~.~
*' ,
.mgtt
ug/L
QDa$dy;
Quai(edy
"
" ~Seep~
T-6 and 7'-7 fOr :Priority Pollutants- .
'~*Jf'cblOrinatlOB is ustdf-or disfufection
."
'"
69
.
"
.Malibu Bay Cominm.i
~onito~g'3nd'Repprting Pro~No.
_.
cr 8158
BaSic: mfonnation
the following:'
-.
that must be included with
".
aIi groundwater'lIl61litOring
WeIr identificatio~ &lte and time of samPling;
Sampleridentification. laboratory idt:ntificanon;anc!
Water·teInperatm-e (in field)i'
.
.
'C.
-d,
e.
A ~ce
..
..
_
.
'.
water momtorlnKProgram:i:i1Dst be ir:npl~
·at W"m~ canyon area to ·defuct ana
unpagtS f'i:om wastewater diach.atges through the Seepage pit disposal system. If Lmrtace
eVal~
.
,}yater is presep.fin the Wmter CaQ,yon~ge
do~t·from
·theseepag-e pits, it mtaII De
cb~ectedandanaI}'ied. The foDowiIig: shall CQ~fitute the surface ~ater m~IiitO.ringprogQJJ:ll:
M!nutmm.Frt:queDCTf
Constituent
TQtalandfecaI colifonn
l3nteroqoccus
-T'Qtal Nitrogen
.
.
Surface. warermoiutorlng
. -.. .
.. .. - . .
,".
.. a.
b.
-, ,.-c.
.d.
':
..
'
"
. " ....'
.'
.
.
..
e'
~
",
ot'.Au:dxsis
.MpnthIy
Monthly
Monthly
.! •••
'.
.
chitin of custody; .
Quartedyobservaiic;ms of gcoundwater Ip-vels. recorded to .01 feet mean Sea level;.
", and
.
"_
.,...
'.
' Verti~separation. of the:; water table from tbebottom of the seepage pif4.
D~Surface Watecl\ifomtoting
,
and"ceportingincludes
. .
_
.
"
a.
. ."b.
Malibu Colony Plaza
.
must':incl.u~e the tonOWingiIlfonnati.o~:
Sample; l~on; inclUdiItg ~res' and time'saxQPled;
·[email protected],
14bQr.ttoty ~
Wliterfempenlture;·
and ~
.
Qfcusto(1y; .
W~terel~vaiiqp<tide);and.
Direction- of CU1;.tent.
. , leGend ltmvlsiODS ~orSanipIin,and AnaIY§is
.
.'
;All cbellliad>; ·bacterl.oiogi~) and toXicitY' ahlllysis' W be con~cte<;l· at ~ l~ratoty certified
.f~r "such ~y.s~
by the S~te Dep~t
.of Health. setvices &vironU:lcl:ltaJ Labotat<:try
.Accreditation PrOgram. or approved by the Executi-ve Officer. laboratory analySis J!U.l8t follow .:
methods' approv¢' by the Unlted··Statcs EnviJ;onmental Protect!on AgeIlf;y <USEPA) .•.and the
laboratory must meet USEP~ QtJa1ity.Atss\!I'atlceiQnaU:ty Contiol cri~a.· 4Dalyti~
data
. r~port«las "less than" or below thedeted;ion 1imi~for the~wpose·of repqrting ctJmpliance with
. ?
T-4·
Malibu.Colony
.
.
Plaza
.•~
."
'linrl.tiuions, shan bereported ~ "less than" ~ iuunetical value-or "below,the detection '1itDit" for
that particular analyticalmethod (also giving the numerical detection.limit)~
.
,
..".
.
.
.
.
,
. m.. GeneralPcovisions
fbrRepo~ng
.
. '. :I1ii.Disc~£er shall .identifyaJ.l.jilstances of non-compliance ~d shall'subnrlt a statement af the
actions Undertaken, or proposep.. that. will bring tlie discharge ipto full compliance with
,'. 'requirements' at the ~lieist,tiine and submi,t a t:iIiletable for correction.. The quart;erly 'reports
" . shaU contain the following info~on;
".
.
a.
.
.•
A ~ten:i.ent relative ~o complianCe 'witll. .discliarge, ~catiohs
.repo~g period; and
.
during
.
' Res~lis -of dally. obs~rvlili~ns ~ the disposal:~
for:my.ovetflQW or ~acing
'. W~tes, JU.ldlorother visib!eeffeots Qf:the. w~ dischar~.·.
.
,b.
.
the
of
"
: .IV.Was~ I!aufuJ.gRen.dbing.
:' ·1l;ifu~·~ventthat
waste slndg~.~~t:4lg~.Or otIiei' Wa$teS
are hauredoffsite. tile' name aildaddress.
, of the·hauler SWill be.repoIte;d.. along with type$ .ana ijuantit;ies hawed du$.g'the repw:ting p'~o4
. and the lci<:ation:offirial :Pohit:'()f e;tispoSa1..In theevem: that no wastes. ate hauled dtidng the
~n.g'peljQf:l:
a ~taWuienttQ that ~e¢t s\1a1l IJesilbnntted
'.
..
.
'V~.Ope@tion ~f1,lYfiiintemmceReI!Qrt
, ':.. ":theDischarger slWlIDe a ~cai
a~
n~t Iater.tI!an3~ days after~pt-of
. ~,.: .thes~ Wilap?'Dischaigp R~~ts.
relat:ive tQ the operation an~J?Jaintenancep1'ogram
fortbis
.. ". facilitY. The .hifomumon to De contained in the report sluill inclu~ at· a minim~
the
"fono\Ving:'.'
,
reportWit;h.: tbis
.
.
.:
.. . . .'
.'
~
.'
~$.()f
tIle pmon'oroom~y
lCSPonsiblefor the OPeration.;m.d
.mQintehance,ofthe facility; .
.
.
'.
..
Type ofmaintenan~Wnw~ve.or. cofl'etnve~Qn pen~;
FmquenCY<JfImin~ancel ifpi'eventive;~
.
~eii.odic p.~g
out of the septic ~
' ..
. The'n8Dl~~d
. .'
b.
"
c,
.
.-
. d. '
.'
. VI Certification statement
:'
,.
"
.&eli"report
shail contain die- following compl~rleclaration; .
•.
-
-'
.
. . :;'i certifyun&r
"
.
FnaltY ofIiw that this dpcument, ~iuding'3Jlattachment$ and; sllpplemerital
illfop:na,tiQ~ w~1prepared,under
m.y directfuIi or Sti.Pemsion in accordance .witli a system. .
'1'...5
-.
-I
71
.
..
Malibu Bay Conipany.
..
.
¥0I!itoring and Repomng Pmgtani
No. CI8158.
Malibu Colony Plaza
properlY gatheiedandevaluated the infoIlIllitian
submitted. :i3~eidon ~lIlYinquiry of the person or-persons who manage. the system, orthose
persons directly responsible'for gatheririg the inionnatio~ theinfo~tion
submitted is. to' the
best Of my I9wwledge and belief. true, a~.
and (fOmplete.I am awaxe that $ere are '
.:. si~cantPena1tie.slor ~nb.mitt:iIlg·t"alse information. including the possibility of a fine and
:iInprisomnellt.
'.
.
.
.ck:Siinedto a~surethat ~d"l>eE>Qnnel
,
.Executed. on the _... day of..."...__
--'l' 20_...•
at';,..
.. --._~_
~_
.
"
..
...•.•...'-_~
.•
'.
.'
,
,(SignaRn:e)
' ••••
r '~;"""'------"'-"-
..
..:.,...;....~---"'-"-..•..•....
--..;;...,-.,...--.".---.,..---,......(TItle J" .
": "'ii.- ~
"'l'
;..n -.w.n
and repqi(s
pabIic o:loc.umlmts
be maae" avOuaiu. for ins~on
during nor:tlUU .bnsiri~· hQurS at the -office.,ot the California R,egional"Water Quality Control
" ';BQm'~;LOs Angeles R.~gion.
.
....
'.
..
'.
.
.
. -: ·'·0
·:··rd···'.···d~b
..·~···
.::>. ~~)~
..
,
.. ~e ~by.~
.....
Dennis A.. Dicketson-
¢' ,
..
Date:
December -7. 2000
)3xecu~veOfficer
.
,
.
.
..-
:
-.
.
-.-
:.' .
'", ,;
..
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T-6
72
I
t
.-
MaUb~fBay Co;mpany
"
M~ni,toring and R.eportingP~gram No~815~
Malibu Colony'Plaza
I
PRIORITY POLLUTANTS'
s>,
-,
'.
.
Metals
Acid Extractibles
." Antimony
Acepaphtb~
:Benzidiile .
"Arsenic
.
Bet;yIlium
.CadIQimn.
~OIDipm.
l;2.4-Tncl,dorobenzenf}
.
~or.oeu.ane
Bis(2-chloroethyl}
'
. .
·l.2 •.Dich1omb~e
.
Ij..
DicblOI:O~e
1.4-DichtOfOOenzene
. . . ,3,3'-DlCbloJl)bet;lZidi.ti¢
· :4+lAnitrotoiueiie
..
2,()"'Dw.Uoto~_ne" '.
l.2-DipheJi.yIliydIaZin~
:ThaUium
Zinc:: •.
.
ether
#-Qil~t6~ene
SelenilUll
-'Silver
T'
I
2.4.~Tri.chlofophenol'
· ·P..chIOJ:Q-m.qeSol
2-cblQ:fQphen,of .-.
2;4;.Dicblotop~nol
'~4-~imetbylp~ol
.'
2-~heiIoI
.
4-Nip;ophenoI
· .2.,¢'Dinitr~pbenol
· 476-Dim.tr~ol
Pe-.hl,orQphenm
." Phenol
HexaoblCii:obenzene ' .
. Copper
Lead:
-, :
M!3t1mlY
NICkel
,
~uo~ene
,
.
'.
.
V0Ia61eOmyncs
= ..
Acrolein
4-qdorophenylphen;y1 ether
4-BnnnophenyJ.:phenyl etb.~
Bis{~1UoroisopfopJil) ..ether .
Bis(2-chlOIQclhoxy)methane'
~~hlq.rOb~c:Ii~
; ....
-Cyanide
. hbeStos(on!yjf
. .$peoifically .
~requrred)~
AcryJOtJitrlle
Benzene
eatbon tetrachloride
....
·.Gbiomb.enzeI),e.
i..2k;.~chItJroethane· .
1.•1.1- TrichIoraetbane
'
He:icaChlOl:"OCyclopen'tadiene
.
..
'. ,
.
"I
.
·lsophOrone·
~~e
J.)ieldlm
•...
.
4A'-DPT
4,,4'';.000
~~4'-DDD
'.
: Alpha-end~suIf~
Beta~dosuJf:a:o,
'. Di~d
··-""'~"J"P htbalate
...
.: .EndosUlfan sulfate -
·Dieth:f1 phthalate ,
Dimethyl phthalate
Bndrin
,
Enckin aldehyde
Benzq(a) an~e
. Hepbwihlpr; .
IIeptacblot epo}dde
;AJ.Ph~-l3HC
' ... :'.
l'{aphtbalene ','
.
Nilro~e
.
-N-niti:~IhyJ8Itiine',
J(-ni~pdi-~~opy1~
.N-mtrosodip~~e
.
. Dis (2-ethylb~yl) ·.,hthaI~
ButyJ benzyl 'phthalate·" . .
· Pi-n-lXUYl plitlialate .
••••
~Aidnn .:
'
•
.
T-7
;,
. 17l-DiclJl~
.
1~1,2-'triChloroethane
· 171~-T~oJ;Oet:b.ane
·Chl~oetlJ.an~
. "CblorQfonn
1.1-l;)icb1oCQ¢tbylene
.1,2:1Xans4CbloiOetny1etle
·.1:i~DlehIoroprOpane
·l.z;.:t>iChlOJ;OprOPJ1ene
£thyIbenzelle . lvtethyJ«me chloride , -
M~J"l cl1loride .
·.J.
••.~""""lIlni'
.LY.l,Cl.l.1J~
.. ~
BeiJzo{~lp~~ .
B¢~):tluorantbene ;
.:BenZo(t) ~uorantlien~.
...
.
.
ide
'. Bromoform.'
B~o~odicbloromethane
DibrombCb1otQmeth~e
.
Malibu Bay CtJmpany
_.
Monitoring a,ndR,eporting.Pl'O~No.
Cr8158
•
#
Beta-SHC
Ganuua •.BlIC
'Malibu COlony Plaza
.
.~
.Chcysene
AcenaphthyIene
Aniliracene
1,12:..Bflnzoperylene
Delta-BRe
.·Toxaphene
" P.cB 1016
TetraChl.or-oetItylene
Toluen.e
TrichloroeihYlene
-PCB 1221.
FJilorene '.
Phenantln"ene
1232
_;PCB 1242'PcB 1248
l~,5.6:Dibenzant:hracene
oJ:n.denp (1~.3-cd)pyrene
.eca
~e·
.PCBft54.
- . °:PcB 1260 .
o'
Vinylchloricle
.
2-chlQroethyl yinyl. ether
.
TCDl? .
. ".
. .. .
0
0
"'
-,
-.
o•
.
."'
.
....
.0
. -.
-
-. •.
... . .
•
1L.
.
. -.
'
_.
.•.
0
0
1
74
.'
STAn; OFCALfFORNIA
.. .
., .CALIFQRNIA. Rl!:GiONA.L WATER QUALITY.·CONTROI=. BOARb
:-' 'LOSANGELESREGIO~
.
.
ORDERNb. ~183
rsSUANCROF A 1JME.$CHEDUlE
..
:onmcnNG
.:
MAllBUBAY'COMPANY
TO·CO~LYWlTH·T.HElffiQ~PREsCRIBEP
ORDER:NO 00,,182
IN
.(File ~o. 00..(65)
.~
CallfOliIia
Malibt;!
Regional W~.Q~t;y
ContrOl B~
Loa Angeles Region (Region~ .I;loo.rd).finds:
Bat eofup3ny'(h~einafteI'J)isch'arger)owns th~ M~bli
CQiony Pl~~
Iocated -~.
2;37()5-~841 W~t M-ah"bu Road, Malibu, camorni~ TheMalibu COlony P]aa,;a(pIaza} .
(FigUre.!) Is calpprlSed of a :r:ilPm.n'eOf ~
aud cottuni3roialJ>usinesses in:clWiing a.
,dnlgsto~ a ~eG
a 'bank. sevez:u food. service faci1iti~.·il dry cleaner, a
.' mmoliiielseIvice·· CCBttn". a ~~
office,· and a one;.honrphoto processing business,
These ~esses,
Wltb.tb~ exception of the"~e-hoUI'photo facility, disch~e wastewater
·tothe J)iscbat~s $epti~ syst~l_ A~
to the Discharger, the one- hour photo
facility qges not~1.targe any.waste to the sepii<.;syst~m and the facility does ·nothave a
:restrOOl1l. ()j\$iI:dC. .'
2.'
.
"
. .
The piaza is:in .an~yvered~ea
hi·the 'Cit;ynfMidibu (City). TJie City does, not provide.
.~y Wasteviatetl::6D.ectiOu.·ari.d.tieatm~t utilities; r;nber •.it relies upon.subsurface ·disposal·
~~..
for disposaloftlomestic.
commercial, andfudusttilil
~•.
.... w~re.wa:ter_
.
3,; ..
._
.'
':'.
On~~
1Z.~,1999,.Tb.e
Maitou."B~y COInp~y filed
a Rep9rt qfWasteDi:scharge
ptmuanttq.a directive tfum~s.,itegiOn3I Board, The Malibu Colo~y Pl~li'dischargesan
.a:V~
Of 35,000 gaUQnsper. da.y'(gpd) of ·primary 1Xe{lted· septic System:' e(fIuent to .
.. ' . S"~~e piis:fu Wmter·~n
.. The ~liilg;.se.Ptic s~·
and s¥epage pit dispo~al
. -. '~lD i$ ~gnedfot a;~
daily~owoftll?~o45~poo&>4.: ...
". " 4,;
..
l'he waS,te~ater .~ves
~y ~
~e.nt
in· the septic s~~'\Jefo£e
.be1n~.
diScharged tSlthe seepage pit di~
SyMem. .1heefflnentltrOIn.' the septic tank:sy$~iilif;
the effluent q~
from·tJie~tic taiik is nOt bowD. The'
.~. not mo~toredt 8s'~ ~.
NQvemer 2.0. 2000
R.evised: December 7. 2000
"
>
75
•
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.-
The Malibu Bay Comp~y
Malibu Colon; Plaza ..
exiB!ing seplie s}>tom is ""'Cl!P3bIe <>f disinf~
P.iI>. .
'.
..
~
~
to the seepage
.
l
~
.6um.1hO ~
septic lank" system fuliIb:arc giDu.ndwDter throi.lgh'lIre
iieopagoP.it-disposai"l!"tem. 11,,;~
o[theSOCpago pitdisppsaI ~
llIldllre waer
tableJilay not have' a mhUmwn J;"equ1red l(}.:foot Vertical. SepalatiQIl. .In addition. the
-seepage pit·diSposaJ· system discharges ~clQSe proximity (approximately 05 mile) to. the .
~c
l.Jcea". ~~g
is &,;~.requimd as ~uiuIor!ldng
tho .
-, ~
pit d/sposal sysb:;m,is in IJY<ltaqi;c~
with the ~
Ocean. 'li>orefore,
the DiscIlltrger must UPgraA;Je the~tic
syStem and ipstaD, t.li$infection eqolPlllefU in
:~inft!Cting- tIie eftll;lQlt to leve18 Of bOdycoIWlct 'r~0IJ:
prioi to discharge to the
.~¢pp~iJit disposal8~.
..
.
.. .
.
5.
'
...
6,
.00000No.!!lI-l8'.l·~
~
..~
~
of waste··ffpI,l1th~ septic tarik"cffitnmt
~g
"~sc~
~tride thefoIlowingeffItientiumtations:
--.-...
. tituts .
.BO])s
. ,.
~"
~.
~
.'
"
.,
.
.
ing(t
mtiL·
mgIL
~
~~))J)
. 30
10..
. 45
IS
15
500
SOb
~OOmL
~
~mn
45
2"poQ
nwL
colifoi;m(a)
ZOO
~IoQmL
'. '. '.0)'
1boBmll;; lbr<olilboo>_ .'-1ll<lis<ha.,.,
.
. b}.. 30l"he~"1imit
is based'
m~•.
da.yPed!xL
".... oilg~c
7..
3{)
."-NltJ
'inS
. .
~!eJ1!ge
mglL.
~spended~
:turbidity
Oiland~
m
:. .
..... '"
. :. MnWbly'
~tn.ent
torMll!iW 1Iay-Comp lY .
s~
These r~inents
.
Of""'n!atJea$ts
,164,
Pits
.: .
&fqIf:ll1lYSP:u:edsamp~in
~
..
ink.u,;,~
MiIibn Bay ~
~ not·be aI>Ie 10 oclJieve ~
CQIIlpIlo1¥» with ft.t, abc>v<>-.
listed CQnsli!Uents (Specmcat1y fecal' colifoanJmdenterocQc¢.us).
.The ~hatger .has
in4i~that
'it ~ not imIUitdiaiely Comply wi.th·~ ~tsContained
in.the Waste
Di3cliargeRegui~'~
the septic ~
~
to be~·
·In.6* forth~.
~
1IQl' to.~·iU.~
vi~·of
~.
iiI~. Waste ~
. Reqti!rerilents •.the Regional BO~hilsincIw1e4 this Tiffle:,SCheduie. Order-(TS,O)" that Will
,.
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••••••
76
.,.
...
.
. The Malibu Bay Comp~y
.' Malib.!1.ColoiJ.:yPlaza
:Page 3
.
...
-iillow the Discharger to complete-all need¢d up~
1'80.
.8.
Within'a ~e~e
.
..
..
Specified in the
Th.e Califomia Water Code ~ection 13300.~:
a re!iElJlal oom-d: finds that .ac!isCharge of·~te
'is taking place or .
take·plaCe ~ "9iola~ OJ; wijI violaterequ.Ue.inents P~~by,the
RegiOlml l3ootd:. or 1heSbiteBQ~
or 1IW: the waste CQUecii{)11, .~nt~:
or
~
facilities of a DisclUttger are aPproaching cap3clty.•the 'B98I-d'BlaYrequUe
. .
$e Discharger to submit fer approval
file B6~ 'wi1h such modificau-ons as it
.
.. may,geeIIl n~.
a detanedtimesChedgl~ qf specifi.C.actiOllS the Pisch*l!er
~bmltarrein, o,:derto CQn:ect orprevent avioIatioil of .requirements." . .
'~enevei
~gto
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of
9•.
is being, .t:a}{Cri 'f-or the protection of h~
health and the .
.euvn-onment, 'arid as suCh. is eXenlpt frQm the-proviSions of .the 'caIifmnia, EnviioDIDentaI
. Quauty hct (Pu.blic ~ources~Code. Section .21100. et Seq;), in ~Ordance .with California .
. . -COdeofRegWatiens. Title 14.,Chapter.3.Section.1530L
.
"''PUs ·enfoic~action.
.The Resianlll 'Board.ha$ ,notifieci the Discharger ~d'interested agencies and persons' of its mtent -to.
\
'.
.. . ..
- . ;iss~ a Tupe Schedule Order fortfiis diScb~
and "has pmvi(j~'th~rp, With an opportunity to.
.. . ·,$ilia
their wtitt:eDviews aild;:recomprenda~1JtlS for thc'tentativeTune ~b.eaweOrd6i.
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.-.'..'neke~o~ BoaItt In 8 public lQeeHngi.heard and ~~~,
anco~erits
p~g
.tO~e
..... leP;taUv~,T"nmSCh~
Order. Thi$ T'uneSchedule Order Provi4es,the MahlJu,Bay 90mpany to
". - insta1l1,1p~ n~'iQ
bring the ~g
septic ~into
COInpJimce.w1th the ~ments
. . ·i;ontainedinO.rder~1_8~ . .
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'q'IS llEnEBY ORDERED tb.at"Malibu Bay 9>rnp~y <PisChargei)
f~
':
2."
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shall coftlplY with the
.
' ...
'Ib:e.D~atger,~ sabmitby ~
28,2001, a ~IhnUuny,pr~
d~Uh.g how the.
Jimitati
" .. ·· .•.....
:-00 m.
- . Q...I',.",:,
Ni . "nii'i82
" TIle 'Jan',
.
.
. fJnB coP~.
:L~',O.
vv- '. will'· be- ~.....
p
.shalt"·
. IllC Ide'
tli .. an
~~g
analysiS ofefflUCl¢'wateI: 1.jpaIity~. coUected, along With an idei1ti:fi?tioo of
..the. type. of" SOUIte redUction .pl. and an ev~JUltiQ1l' Qf ·~t
tnetbQds or' o~er
.correctjve aetiQ~ to,be'iaken itt order toiJteei theilXluiJ:eIDents ..of Order No. OO"lS2~ .
.•.
. ...
·The'p'laq.~b~ be'coinp~
A.
to:d.ei:IUje,3S foRows:
~g
Submitby March 30., 2001,. f9r approval by the Re~nmgoar;d~ecntive
~Orlq>lanfQr a surfaCeand ~dwatermoni~pr~grarn..
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Officer, a
'.
- .
~e Malibu ;Bay Co~paxi'y
Malibu C:olony Plaza
B.
-c..
Submit by'JJI1y·31. 2OO1~"for ·appmval by the Re~onaI Boarct"Executive Officer;":i
Piopos~ for upgrading the eXisting "5eptic syste~· to' pre!iuee '3Il effluent tl1~ will
,'meet1herequired e.ffItlentlimitations ," - '.
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Page 4
Implement by June~O~ '20.01. the sUrf~ and gtciUnd~IilomtQringpf9grnm.
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By July 31. 2~. ;coJPPlete CQnstluetion. and testmg:to ·~evefulJ.COIDP.liance
wi~all reqi1kemen~· contain~ in Ofder~o. 00-182.
•
.~In 1Dec;vem.' thatCalliQini~:au~ental
Qualiq-, Act (CBQA) reqtliiements Or project'
, 'funding· :requirements .de14y CQ~on
start-up., ~, ExecJ1tiv-e Officer' may.' at JUs .
diScietion, eAtend the :time schedule; by a period not to ex<:e6d,9 J;IlondlS; to, acbi¢~ full
r;:OmpIiance WitIr~
requirerrients~
,
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.3..
Reoozgng:
The Ili.sc.Wirtet shall sQ,btnit ~
~~ annual pro~
repOrts
P~bs'land
2aho\l'~ i:4'~Ction
with self:.monit~~llilderMoBitoriilg~dRep()iQngPmgramNO.
81S8.:
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C9mpliance
for tile J;l£oJ~acliVities~IJt1ined"'in
a
$C)pid, ,Mahon J3.ay. COtnP3;RY tail to eomplyv4tlt
an!' pIQvisiQn ··of thjs Ott:l¢. the
~ecutive Office:rmayissue. ml A~veCivil'Liab~ty
Cojrq)l3iJit:p.urBtJant to the
' .-.CaJifemia Water Co~.S~tj;on
13323~, The,RqpOIialBo$"d.~ay
alSo·ider the case to the
:- ':Attorney Gener:al for in.flmction :and ciVil· IJionetaiy fCniedies, PUISUat:J.t ~ appropriate
.' Califomia Water Code'Sectio.ns 13331 and 13385.
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,,1.Dennis A. DiCkemo~~ve
Ofii¢er~do beJ:eby certify~~ the .fo.rt}gPing
is' a:fult true.~d:
-,: . .' ~ciomct cQpy of an OIder adQpted by the CaJifacilia Re8lQI18l 'Water Quality C6n~1 Board. 'Los
~
Region. onDecember7.
2000.
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:C
:DenUis A. DicJremon
, -,Ex~ye
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California Regional Water Quality Control Board
Los Angeles Region
Muston H. ffickox
Secrelaiy for
Over 50 Years Serving CoastalLcJs A.ng~I~;lDd Ventura. Counties
Reclpient ~.rtQe 2001 EnvUonmentalLeader.sJrip
Envirtnimantfl[
Protection
AW4lI'4
from Ke~lI GaJifDrnia Beautiful
32Q w. 4th Street, Suite 200. Los .t\ngllTes, California 90013
Phone: (213) 57~600
FAX (213) 576-6640 - Intcinet Addtess; hltp:lIwww.5\'loTCb.ca.govlrwqcb4
Gray Davis
Governor
JUly 29, 2002
,
Ms. Kari Kramer
Malibu. Bay Company
23705 West Malibu Road, Suite 0-2
MalibU, CA 90265
CERTIFIED MAIL
RETURN RECEIPT
REQUESTED
CLAIM NO. 7001 2510 0003 6055 9631
bear Ms. Kramer:
AMENDED MONITORING ~D
REPORTING PROGRAM, MAI,.IBU SAY COMPANY,
MAUBU
COLONY PlAZA, 237{J5.23841 WEST MALIBU R0Atl,MAUBI,I..... CAliFORNIA ( CI-81513. FllJ:': NO. DO:.
065),
.You requested a reduction in the monitoring frequency for your waste discharge under Order No. 00-182. '.
lhe request was to mocflfy those parameters Which require weekly testing in Monitoring and Reporting . .,
Program lMRP) 01-8-1'58.' A minor modiflcaUonof MRP CI-8158 Is necessary to grant your request
FOotnote· on page T-2 of the MRP has been '!I0dified as follows:
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2
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.For all. Items requ!R!d tQ be IasIec:l Wll;eIdY.the Discharger shaDiest weeIdy for lheflrst 12 weeks after the frealmenfqfant Is
ThIS 12 _k
periOd wIU be COflSIderad Ute-SIar1Up petiod"~SUbl;eqtJentlo the slatiuPPmKlij,
Die Ol$ch~er .may
PI"OpQ$e, tQ.~ ~
Offlcer for appi'oval; .S redut:t!oo.!n,·satnpllng,
frequency from Weekly t(l monthly for each of the
pararneteB.
'1VrYredui:lldilln
mtm/klrlilg hqllerq
mu~ be suppoitect by,prop!lt
system'
durint;llhe,sIart-up
perlod.·
.
.'QPElliMJn of the . wa$tewaterlreatntent
.
.
Your request to reduce them,onJtorlng fre<p.lency fromwel3klyto mOnfhlycin thoseparametm;requiring
weekly testing is grantedqntl1 Apnl 30. 200~. when the treatrnentpJa.rrt Is scheduled to befullyopef"C!tional.
J!U:tha st:ut:-up Of the Wa$iewater tl'eabnent plant, you mu~t resUl'(1eWeSklytnorlitorilig
for ~ Illiolrnum
.periOd of 12 weeks-. After. the 12 Weekstart"'llp
PElnad. any re~:h,lcIlon In monitoring frequenCy' must be.
SUPported by di;lta'verlfyil'lg prQp~ Of)Br9~onoftl1e wastewater treatment ~tem.
arnj is subject to the
Execuuve Officers approvah
If you have
Callaway
at
any
questiOns coricernlrig
(213)
6211-'2271.
fhls l(ltt~. please
.
cali
Dr. Kwangillee
at (213) 62~2269 or Ms. Toni.
Sincerely,
'. ...,(~. 't::
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Dennis· Dickerson
l:xecutfve'offlcer
ce:
Mr.GQroonlnnes. Oivjslon afWater QUality. State- WatercResources Control Board
MT.MlchCief ~uffer, OffIce of Chief Counsel~State Water ResourC8$ Contrqt· Board
. Mr. Robert Sams, Office. of Chief COunsel. ~
Water R:SSources Colitrol Board
Mr.Vic Peterson. City of Malibu ."
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Mr. steve Braband, 'BiosotUtions, Inc.
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. .CRlifernJa
Envir011i1ttmlaJProtet;t/on Agency
.~
~clia1lengtt/fu:i;zg 0zlifp1'lfiJl~rear. EflelyCtllf(l~
1IUi4. fdellrutretlrat.lIdioll
to reduce,6n4rp COI1S1UrIptlon**'"
***FDr -118tlifslmpk-w1iys tDr~tftUlUl!iil qzui t:ilty_ energycosts,seetM tP f1/: 6ttp:I~cb.Cl£gtiv/lJeiiii(e.dta!l~e.1IliIrlr.t*
..
w·
.
. ,i:1i1et:ydedPllJlF
. .Our missioll is 19PI$f!11lemut enluuu:e.tJze tpUIiliyofOzl!jQrniiL"s: watv~esfor
"
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t1ul ben~:fi(o/~
Il1ldjilturs gsrreratiou.
I
I
STATE'OF'CALlFORNIA
CALIFORNIA REGfONAL WATER QUALITY CONTROL BOARD
LOS ANGELES REGION
MONITO:RlNG AND REPORTING
PROGRAM
NO. CI8158
FOR
MALIBU BAY COMPANY
(Malibu Colo~yPlaza)
(pile No; 00-:-065)
Malibu Bay Company (here.inaft~rDi.scharger) shall iInplementthis' monitoring program for the
Malibu COlony Plaza no bl1erthanMarch 31, 2001. Monitoring,reports shall-be submitted by the
dates ill the following schedule:
,~ewrting.Period
Repoitdue
April 15
JuJy15
October 15
January 15
1anuary - Mwch
April-June
July., Septeraber
October- December
Th~firstnioIlitQrln~ report under this pto~
slIalI be stib.mitte~by April ,IS, 2001.
By J~
30 1J;! of eachYe~. beginninglanuary.30~ 2002, the Discharger shall submit an annual
report to tlIe8Qard. The report sball'contain Sl.Unl:naries of the mQ;nitoring.data obtajpe(tduring
,the previoUs ~eJ;1.(Ja:t,year. ,'In addition; the Dischargei: shall' diis'cussthe compliance -reeoxdartd
tb,~ con;ectiveactions.take.n or pla.nn.ect which may be needed to. br;qlg 1he discharge Intofull:
coinpliance with the Waste Discharge Req~~J,ltS.
.
L WaterQuaIitv
Moriitoring
A. .JDfluentl\tl0llitorin~
The Discmwger shall, m~
the mon:di1y average' and PJ,aXimu.ni ~y waste 'flow from the
collectiOI1sYsrem'fu ~ septic'taplc 'SY$1em. The Discharger shali provide nam..~ of 'anY new
diSc~,1qat
~ge
iliti),the septicsys1:¢ni tOgether with the flow and charaeteristicsQfthe
wastestream.
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Unless sp¢¢i:fied otherwise~a ~plh.ag$tation
shall be established at a l~on
where
.repres~~ve
~8nlpleSof septic syStem 1 eftllWnt can be .oJ';tained prior to discharge to the
'seepage pft ~aI.S}'8teuJ..
Tbi~ monitoring and reporting progtani ,l3ball' also apply to the
upg(~dedtrea:f:(Qent systeJiL The foU~wing shall consQtUte 1l;i.e ~ff1uentD10nitQringprogram:
1. The tenn septic .systemis used.in this doetimem to-i"eflect tlJat c:iutr~, ~ wastewater receives only primaty
trea1milnttbrongh a series, of grease in1:er~tors and sqrtic tanks. prior w disposal into·seepagepits. The Discharger
shan install a ~tsystem.·thatwill
ptOd!1tfl a disinfected and secondary treated.efiluent
.
November 20. 2000
Revised:
July 29, 2002
MiliDuB~Compmy
.
Monitoring and Reporting Program No. CI8158
Constituent
Totaltlow
Units
gayday
pH
Suspended solids
BOD520°CTurbidity
Total and fecal
plItinits
recorder
mgIL.
grab
grab
grab
NlU
grab
mg/L .
colifon:n
enterococcus
Oil-and grease
Type of,
Sample
MPNII00mL grab
MPNnoOmL grab
'. mgIL
grab
Total dissolved
solids
mW!-
grab
'Chloride
.mgIL
Chlorine*'"
Boron .
, Sulfate
Nitliate-N
Nitrite,.;N
A.mn1onia·N
Organic nitrdgen
.g:t;aQ
grab
m"'"
.. Elf.-'
8rab
mg/L
gnlQ
nig(L
grab
mgIL
grnb
mgIL
. gn;rb
grab
.mg!L .
Phosph,otuS.
mglt
MB:AS
grab
mglI,.
mgIL
Volatile lin4~ugit
.vol~~ orgamcs*
Prloritjr poUutao,f scan*1igIL
grab
. grab
waQ.
Malibu Colony Plaza
Minimum
Frequency
of Analysis
continual'
weekly2
weekly
weekly
weekly
weekly
w~k1y
weeIQy
monthly
:plonth!y
monthly
:n:Ionthly
moritlJIy
fil(;m,tb,ly
monthly
mmrthly
monthly
monthly
xnontbly
monthly
annual
.
~.
iii seeP'fges T -6 and T-7 fqr Priority Pollutants .
·'lfch1otifultion is used for disinfection
C.GroUtldwater,MonitOtipg
be desi~ed to evaluate impacts ·of wastewater
discllarged through the$eepage'Pit
disposal Sistem on groundwaterqwllity. In add.iti~ the
iJiscbargeJt must complete study 1(;).deienpjne the·hydraulic conneeden between groundwaternirder ~~~
system ;:mn SlJ:tfaee water. .A :grOUJl~'
IQ.ODitQring workplan must be
submitted to thiS Regionat Board fQJ.' review PY.~ch
3Gt 2001 8nd is sIlbject
approval by the
A groUndwater monitoring ~gram'.~.
a
to
.l
2 For Jill '~Tequired, ..to be tested'weekly, the Dis,' ~ger
sball.test week1yfor1henm l"i wec;b, after the treatment
... plant is instalIe~ ~
l~ weekpaiod will be cQnsideredthe '~period."
Subsequent to 1he startup period,
.
tbe Di$!.iliargerl!1aypropo$~~ toflj.e :exeCutive Offlcer fcit approval. a tOdUeti~in samp~~ fh:qtJ~ from ",eeldy
~_montb1yfor ~
oftbe p~etera~
Any'reductiQJ;1 inmOlrltoring 1irequency ~
be suppOrted 1\Iyprop« .
operation of the ~~
~ent
system during the sbutupperiod.·
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Malibu Bay Comp~y
Monitoring and Reporting Program No. 8158
Malibu Colony Plaza
Officer. prior to implementation. The Workplan shall include, at a minimum, an
evaluation ef'the adequacy of 'the proposed. grounclwater monitoring wells to achieve objectives of
. monitoring, reCCllllIIlendations fOr additional groundwater monitoring. wells, if warranted and the
construetionBIlddeve!opment of groundwatermQnitoring wells.
Executive
The report must be. prepared uader the direction ofa caIifODlia Registered Geologist, or. Certi:&ed
Engineering Geologist, or a .California Registered Civil Engineer with .appropriate experience in
hydrogeology.
.
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The followingsbalI coilstitutethe
Constituent
groundwater monitoring program:
,Units
pH'Ullits
--.
PH
to~ and fecalcolifonn
mt¢roc()ccus
BODS 200C
Anttnonia ••N
Nitrate-N
~cni1rogen
TDS(Total dissolved
QuatteX'ly
Quarterly
mgIL
Quarterly
ingIL
~ly
mgIL
Quarterly
Quarterly
Quarterly
mulL
PhoSphorus
MBAS
mgIL
solids)
:aaron
Chlor,ide.
C;WoriJ:ie**
Sulfate
Prioiity poHutantscan"
Quarterly
mgIL.
Quarterly
:tng{L
~rly
'rilgIL
m&JL
.
Quarterly
MPN/I00mL
MPNJlQOmL
m.@:.
Nitrite-;N
Minimum FreCJ!lency
ofAngdysiS ..'. .. .. .
m•.•.
n·.
~....,
mgIL
ugIL
Qua:rteltly
Quarterly'
n..~_Iy .
,<w:lu~ ..
Quarterly
. Quarterly'
. ~. See pages T-6-tqld T-7 fur Priority .pollutants
''''*IfchlorinationiS'~
for ~infectio.n
.Basic inforrnati,onthat must beh)ch,uied with all ground~.monitQring
. thefollQwU1g:
~
b,
c.
. d.
and reporting includes
WelIidentffieation, date and time ot sampling;
Sam.pledclentifieatioll; laboratory identification.; I:lOd phaio, of custody;
Water~e
(m field);
. Quarterly o.b~tions· ofgroundwa~r leveIs.:recm-ded to .01 feet mean
8l1d
sea: level;
Malibu Bay CompaIlY
Monitoring and Reporting Program No. CI8158
e.
Malibu Colony Plaza
Vertical separation of the water table from the bottom of the seepage pits.
D~ Surface Water Monitoring
A surface
water monitoring program must be implemented at Wm~rCanyon
area to' detect and
evaluate impacts from wastewater discharges tbrough the seepage pit disposal system. If surface
water is present in the ~mter Canyon ,drainage downgradient nOli1,',the 'seepage pits, it shall be
collected and analyzed. The following shall, censtitute the surface water monitQrlng program:
-
Constituellt ,
'
Total and fecal colifonn~,
Units
MPI-lIlOOmL
MPN/lOOmL
EnterococCn$
Total N'ItrOg~Il
MgtL
MiJiimum Frequency
of AnaJvsis
Monthly
Monthly
MQ~t1::l1y
Surface,water monitoring reports mU$tincluclethe'follo:Wi.nginfoimation;
'Sample 19cation" int}l~gdates
and time sampled;
id~cation,
laborat()ry.used and chain of custody;
C.Water
,t~pej:ature;
a
b.Sampler
d.
Water,elev~on(~de);find
e.
Directi.onofcunent
11 Gener~..- Pr0VisionsforSampling and Analvsis
..
All$~.mica1, bacteriolQgi~$,I1d toxicity analysis shallbe conducted at a laboratory <:ertified
for such anaIy~by'tb.e':~
:Dep;;ntme:Qt of H~th ServiCes, BnVir~:Laboratl;>ry
AccreditatlQnP1:o~
or appfaved by the ExecWive Officer. ,taP9I'$fY analysis must fanow
IIiethocls approved by the IJnitea StatesijnvirQnmental' Protection Agency (USEP A), and the
IBboratory~
meet U~A·
~ty
AssurancelQUEi1ity ,Congol criteria.· Analytical 4ata
repqrt¢q as "1¢f!$ tb.an~lorbe1Qw the ",letectiOI1~
for the purpose. of reporting compliance with .
.]irDitatio~~ ~all l1erep9lfe4 W!"nl~ than" anUIii~eaIva1Ue Ot "below the detection limit" for
that partiCular ~yticalliletbod
(also giVing the numedClJldet~ofilimit)~
.
m. General
Provisions for
R.~orti:ntt
The ~ba.rger shaq idenUiY atlin$ances of non...complliulce and shall. submit a statement of the
aetio~
t1Jl.~
requirementS
at the
Qtproposed, that will ,bring the discJuigc into :fulI eompliance with
earliest time and submit a timetable for cerrection, The q1Wterly r¢p(>rts
. shall contain tbefoUowmg information:
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T4
.
Malibu Bay Company
Monitoring and Reporting Program No. 8158 "
Malibu Colony Plaza
a
A statement relative
reporting period; and
to compliance with discharge
b.
Resu1~of daily observatiollS in. the disposal area for any overflow or surfacing of
wastes •.and/or other visible effects ofthe waste discharge.
"
IV. Waste Hauling
specifications
"
during the
Reporting
In the event that waste" sludge.septage. or other wastes are hauled offsite, the name and" address
of:the hauler shallbe reported. '~ong Witli types and quantities hauled during the reporting period
"and1he location of fUtal POint of diSposal. In the event 1:1latno wastes are hauled dwing the
reporting period, Astatementto
that effect shall be
v. Operation
summ~ci
and MaintenanceR:eport
The Discharger shall"fil,e a tecbn:ica1 ;report with tbis Board, not later than 30 days after receipt of
these Waste Discbatge Requirements. relative to the operation and maintenance program for this
,,f~ility.The
follo~g:
be' ccntained
infoimationto
in the report shall Iaclude,
at a minimum, the
c.
of the person or company responsible .for the operation and
facility;
Type Qf~tenance
(preventiye or cortectiveaction.pel'formed);
Frequency ofmain1:lman.ce; if prevQltive; aad.
"
d
Periodic~ing
a,
b.
the mu;ne and ~~
maintenan6eof1he
out of the" septic tanks.
VI. Certification 'Statement.
Bach report shalJ.Contahith~
fono~g completed decl~tipu:
"1 cert:i1y under penalty oflawthat tliis dOcument;iileludiJilg JUlattacbrnents and supplementaI
, infqpna1io~ werepI¥~'1,lJlder my~ctionorsupervision
in accotdancevvitha syStem
de$j.gn~ to assurethatquaIified persormeI PJ:operly~th~4~evaluate41he
mfoI11lation
' submitted. Based on my inquiry of the,pet$On or persons whQ IIUUlage the sYstem. orthQse
persons directly responsible for ~erliig
tbe'in:formatio~the infOn:n~Qn. suproitt¢d Is, to the
best of my J9i0wIe4ge 8lld ,belie~jrue,llCClU:ate~ and complete. .~am ~e
that there are
significant penalties f-orsuh~fa1se
informa:tiQ~ iJ:lciUdingthe possibiliiyof afirle and
,iroprlsomnent.
" Executed
Oil
"
the_
,
dayof_ •.•......
'"'""--J, 20--,
,
Malibu Bay Company
Monitoring and R~orting
Program No. CI 8158
Malibu Colony Plaza
-~~~~--,..",,_~_~~_(Signature)
--------
(Title)"
These records ~d reports are public documents and shall be made available for inspection
during normal. business hours. at the office of the CalifOtIrla Regional' Water Quality Control
Board, Los Angeles Region.
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Ordered by
.1fI
·Dermis A Dickerson.
&ectttive Officer
t...
..
>:I
. T-6
Date: '1uly 29,2002
Malibu Bay Company
Monitoring and Reporting Program No. 8158
Malibu Colony Plaza
PRIORITY POLLUTANTS
Metals.
BaseJNentral Extractibles
Antimony
Acenaphthene
, Arsenic
Benzidine,
1,Z,+ Trichlorobenzene
Hexachlorobenzene
Beryllium
'Cadmium
Chromium
'Copper
Lead
Hexach1oroe~e
1;lis(2-cbIoroethyl) ether
2.,.ChlorODaphtbale
1,7-DichIo~()bel).zene
1~3"Dich1otobenzene
1,4-Dic~orobenZen<!
3,3 i•.Dich1orobenzidine
2,4.,.D.initro~IUene
ne
Mercury
Nickel
Selenium
Silver
ThalliQm
Zinc
2,6.;.J)nutrotolue:pe
Cyanide
, Asbestos(only
, specifically
if
'required)
Pesticidt$ & PCBs
Aldrm
,,Cb1ordane
, , Dieldrin
4,4~-DDT
'4,.4'-,oDE
, 4,.41••1JDD
'Alpha~ndosuIf;,m.
Beta.,.endosulfan
EndosulfaD. sulfute
Endtin
",
Endrin~<t~hyde
Heptachlor
'
, ,Heptachlor epoxide
Alpha;.BHC
l~-Dipl;1(myIhY~e
Fll1OI'8ntheIle
4-Cb!orophenyl' :ph~ylether
4~roII:lop~yl phenyl ether
BiS(2-cJ,1Joroisopropyl) ~er
Bis(2-chtproethmty) methane
Hexaph1oro!>utat¥~
Hexl¢h}orocycl.,ptmtadielie
Isophorone
Acid Extractibles
2,4,6- Tricblorophenol
P-Ch1or(}.Ill-cre~l
2-ChlorophetioI
2,4-])ichIorophenoI
2A-Dimethylphe.nQl
'2-Nitrophenol
4-NiirophenoI
2,4-"DinitroplIenol
4,6-Dinifm-o.-cresol
Pentachlot()phenol,
Phenol
Volatile, Organics
Acrolein.
ACfYloriitrile
Benzene
CarbQn tetracbloride
ChIoI'<;>'benzene
1~2;'])i¢hloroetbane
1,l,l-Trlcblofgethane
l"l-Dicbloroetbane
Naphthalene
,Nitrobenzene
N-nltrosOCumethY1amb:J;e
'N.,.nitrosodi.;n.-piopylaniine
~~osodipmmYlamine
Bis (2~ethY1llexyl)ph~
Butyl ~enzylphtha1ate
Di-n..putyl Phthalate
Di~n-QctyIphthalate
Diethyl phthalate
~ethYl phthalate
BeDio(a}~e
Be~o(a) pyrene
B~{b)fIuoramhene,
Benzo(k) fluoranth,ene
T-7
1,1,2-T+ieh1oroethane ,
l~l,2,2-Tetmehloroeth1me
Ch1()r~e
Chloroform
l,.l ..Dicb!oroethylene "
1~2-trans.,.dich1OIoetliylene
l,2-DichIoropI()p;:me
1,2,;.Dichloro;pr9PYlene,
Ethylb~e
Methylene' chloride
Methyl ~hloride
Methyl,bromide
:Bromofonn
'Btomodichloromethane,
DI'bromocliloromethane
Malibu Bay Company
Monitoring andReporting
Beta-BHC
Gamma •.BHC
D,elta-eBHc
Toxaphene
PCB 1016
PCB 1221
PCB 1232
PCB 1242
PCB 1248
PCB 1254
PC131260
Program No. CI 8158
Chrysene
Acenaphthylene
Anthracene
1,12-Bem:operylene
Fluorene'
Phenanthrene
1,2,5,6-Dibenzantbracene
Indeno (1.2:3-cd) pyreoe
Pyrene
tenD
Malibu, Colony Plaza
TetracliIoroethylen.e
Toluene
Trichloroethylene
Vmyl cblori~e
2-ChloroothylvinyJ
ether