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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended September 30, 1997 Commission File Number 0-18858
KAISER VENTURES INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 94-0594733
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3633 East Inland Empire Blvd., Suite 850
Ontario, California 91764
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(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (909) 483-8500
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
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Indicate by check mark whether registrant has filed all documents and reports
required to be filed by Sections 12, 13 or 15(d) of the Securities Exchange Act
of 1934 subsequent to the distribution of securities under a plan confirmed by a
court.
Yes X No
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On November 7, 1997, the Company had 10,613,315 shares of Common Stock, $.03 par
value, outstanding (including 136,919 shares deemed outstanding and held in
reserve by the Company for issuance to the former general unsecured creditors of
Kaiser Steel Corporation pursuant to its Plan of Reorganization).
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TABLE OF CONTENTS TO FORM 10-Q/1/
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PAGE
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INTRODUCTION
BUSINESS UPDATE........................................................... 1
PART I
Item 1. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS....................... 8
Item 2. FINANCIAL STATEMENTS....................................... 18
CONSOLIDATED BALANCE SHEETS................................ 18
CONSOLIDATED STATEMENTS OF INCOME.......................... 20
CONSOLIDATED STATEMENTS OF CASH FLOWS...................... 21
CONSOLIDATED STATEMENT OF CHANGES IN
STOCKHOLDERS' EQUITY...................................... 22
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS................. 23
PART II
Item 1. LEGAL PROCEEDINGS.......................................... 27
Item 2. CHANGES IN SECURITIES...................................... 28
Item 3. DEFAULTS UPON SENIOR SECURITIES............................ 28
Item 4. SUBMISSION OF MATTERS TO VOTE OF SECURITY HOLDERS.......... 28
Item 5. OTHER INFORMATION.......................................... 28
Item 6. EXHIBITS AND REPORTS ON FORM 8-K........................... 28
SIGNATURES................................................................... 30
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/1/ The pagination of this printed third quarter 10-Q Report does not
necessarily correspond with the pagination of the third quarter 10-Q Report as
filed with the Securities and Exchange Commission on EDGAR.
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AVAILABILITY OF PREVIOUS REPORTS
--------------------------------
THE COMPANY WILL FURNISH WITHOUT CHARGE, TO EACH STOCKHOLDER, UPON
WRITTEN REQUEST OF ANY SUCH PERSON, A COPY OF THE COMPANY'S ANNUAL REPORT ON
FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 1996 (THE "10-K REPORT") AS FILED WITH
THE SECURITIES EXCHANGE AND COMMISSION, INCLUDING THE FINANCIAL STATEMENT
SCHEDULES THERETO. THOSE REQUESTING A COPY OF THE 10-K REPORT THAT ARE NOT
CURRENTLY STOCKHOLDERS OF THE COMPANY MAY ALSO OBTAIN A COPY DIRECTLY FROM THE
COMPANY. REQUESTS FOR A COPY OF THE 10-K REPORT SHOULD BE DIRECTED TO VICE
PRESIDENT-CORPORATE RELATIONS, AT 3633 EAST INLAND EMPIRE BOULEVARD, SUITE 850,
ONTARIO, CALIFORNIA 91764.
THE READER IS ENCOURAGED TO READ THIS FORM 10-Q REPORT IN CONJUNCTION
WITH THE 10-K REPORT, THE 10-Q REPORT FOR THE QUARTER ENDING MARCH 31, 1997 AND
THE 10-Q REPORT FOR THE QUARTER ENDING JUNE 30, 1997, SINCE THE INFORMATION
CONTAINED HEREIN IS OFTEN AN UPDATE OF THE INFORMATION IN SUCH REPORTS.
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KAISER VENTURES INC. AND SUBSIDIARIES
FORWARD-LOOKING STATEMENTS
EXCEPT FOR THE HISTORICAL STATEMENTS AND DISCUSSIONS CONTAINED HEREIN,
STATEMENTS CONTAINED IN THIS 10-Q REPORT CONSTITUTE "FORWARD-LOOKING STATEMENTS"
WITHIN THE MEANING OF SECTION 27A OF THE SECURITIES ACT OF 1933, AS AMENDED, AND
SECTION 21E OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. ANY 10-K,
ANNUAL REPORT TO STOCKHOLDERS, 10-Q OR 8-K REPORT OF THE COMPANY MAY INCLUDE
FORWARD-LOOKING STATEMENTS. IN ADDITION, OTHER WRITTEN OR ORAL STATEMENTS WHICH
CONSTITUTE FORWARD-LOOKING STATEMENTS HAVE BEEN MADE AND MAY BE MADE IN THE
FUTURE BY THE COMPANY. WHEN USED OR INCORPORATED BY REFERENCE IN THIS 10-Q
REPORT OR IN OTHER WRITTEN OR ORAL STATEMENTS, THE WORDS "ANTICIPATE,"
"ESTIMATE," "PROJECT" AND SIMILAR EXPRESSIONS ARE INTENDED TO IDENTIFY FORWARD-
LOOKING STATEMENTS. SUCH STATEMENTS ARE SUBJECT TO CERTAIN RISKS, UNCERTAINTIES
AND ASSUMPTIONS. SHOULD ONE OR MORE OF THESE RISKS OR UNCERTAINTIES
MATERIALIZE, OR SHOULD UNDERLYING ASSUMPTIONS PROVE INCORRECT, ACTUAL RESULTS
MAY VARY MATERIALLY FROM THOSE ANTICIPATED, ESTIMATED, EXPECTED OR PROJECTED.
FOR EXAMPLE, ACTUAL RESULTS COULD MATERIALLY DIFFER FROM THOSE PROJECTED AS A
RESULT OF FACTORS SUCH AS, BUT NOT LIMITED TO, GENERAL ECONOMIC CONDITIONS IN
THE UNITED STATES AND SOUTHERN CALIFORNIA; THE IMPACT OF FEDERAL, STATE, AND
LOCAL LAWS AND REGULATIONS ON THE COMPANY'S DEVELOPMENT ACTIVITIES; THE IMPACT
OF WEATHER ON THE COMPANY'S CONSTRUCTION RELATED ACTIVITIES; THE DISCOVERY OF
UNANTICIPATED ENVIRONMENTAL CONDITIONS ON ANY OF THE COMPANY'S PROPERTIES; THE
FAILURE OF THE BANKRUPTCY DISCHARGE GRANTED TO THE COMPANY TO ADDRESS CLAIMS AND
LITIGATION THAT RELATE TO THE PRE-BANKRUPTCY ACTIVITIES OF KAISER STEEL
CORPORATION; OR THE FAILURE TO OBTAIN ANY REQUIRED APPROVAL OR PERMIT FOR THE
PROPOSED EAGLE MOUNTAIN LANDFILL PROJECT. READERS ARE CAUTIONED NOT TO PUT
UNDUE RELIANCE ON FORWARD-LOOKING STATEMENTS. THE COMPANY DISCLAIMS ANY
INTENTION TO UPDATE OR REVISE ANY FORWARD-LOOKING STATEMENTS, WHETHER AS A
RESULT OF NEW INFORMATION, FUTURE EVENTS OR OTHERWISE.
INTRODUCTION
BUSINESS UPDATE
GENERAL
Kaiser Ventures Inc. ("Kaiser" or the "Company" which shall be deemed to
include its wholly-owned subsidiaries unless otherwise provided herein)
continues to work on the development, as necessary, of its principal assets:
(i) a 50.88% interest in Fontana Union Water Company ("Fontana Union"), a mutual
water company which is leased to Cucamonga County Water District ("Cucamonga")
pursuant to a 102-year take-or-pay lease; (ii) an approximately 11.50% interest
in Penske Motorsports, Inc. ("PMI"), a publicly traded motorsports company;
(iii) approximately 668 acres (gross) of the former Kaiser Steel Corporation
("KSC") steel mill site (the "Mill Site Property"); (iv) an approximate 73%
interest in Mine Reclamation Corporation ("MRC"), the Company seeking to permit
a rail-haul municipal solid waste landfill in Riverside County (the "Landfill
Project"); and (v) the 11,350 acre idle iron ore mine in the California desert
(the "Eagle Mountain Site"), which includes the associated 460 acre town of
Eagle Mountain ("Eagle Mountain Townsite") and the land leased to MRC for the
Landfill Project. The Company also has approximately $112,900,000 of federal
net operating loss tax carryforwards as of December 31, 1996, which arose
primarily as a result of the bankruptcy reorganization of KSC. The Company is
the reorganized successor of KSC.
Since the filing of the 1996 Form 10-K Report and the first and second quarter
1997 10-Q Reports, there have been particularly significant developments with
regard to the Landfill Project, and the continued redevelopment of the Mill Site
Property. Specifically, the Landfill Project received approval by the
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KAISER VENTURES INC. AND SUBSIDIARIES
Riverside County Board of Supervisors and the United States Bureau of Land
Management ("BLM") announced its decision to approve the proposed Federal land
exchange. In addition, 15 acres of the Napa Lots sold for $4.30 per square foot.
See the more detailed discussion on these developments below. A reader of this
Form 10-Q Report is strongly encouraged to read the entire report, together with
the Company's 1996 Form 10-K Report and first and second quarter 10-Q Reports
for 1997 for background information and a complete understanding as to material
developments concerning the Company.
INVESTMENT IN FONTANA UNION WATER COMPANY
The Company, through a wholly-owned subsidiary, Fontana Water Resources, Inc.,
leases its 50.88% ownership of the capital stock of Fontana Union, a mutual
water company, to Cucamonga pursuant to a 102-year take-or-pay lease expiring in
2092 (the "Cucamonga Lease"). Under the terms of the Cucamonga Lease,
Cucamonga's payments to the Company are based upon established fixed quantities
of water for most of the applicable sources, multiplied by a fixed percentage of
the rate for untreated and non-interruptible water from the Metropolitan Water
District of Southern California ("MWD") as available through the Chino Basin
Municipal Water District as it may change from time-to-time (the "Lease Rate").
The Company is continuing with its litigation against Cucamonga in San
Bernardino County Superior Court to resolve a dispute over the interpretation of
the Cucamonga Lease and the Lease Rate. A trial on the matter is currently
scheduled to commence on December 8, 1997. There is no assurance that the trial
may not be delayed.
INVESTMENT IN PENSKE MOTORSPORTS, INC.
The Company currently owns 1,627,923 shares, or approximately 11.50% of the
outstanding common stock of PMI. PMI is traded on the NASDAQ National Market
under the symbol "SPWY". The Company's ownership interest in PMI was acquired
as a result of: (i) its contribution in November, 1995, to PMI of approximately
480 acres, as adjusted, of the Central Mill Site Property on which TCS has been
built; and (ii) the subsequent sale of the Speedway Business Park, totaling
approximately 54 acres to PMI in December, 1996 pursuant to which the Company
received PMI shares as partial payment for the property.
PMI is a leading promoter and marketer of professional motorsports in the
United States as well as an owner and operator of speedway facilities. During
the third quarter, PMI continued its acquisition of ownership interests in motor
sports facilities and/or operators. As of September 30, 1997, PMI owned: (i)
Michigan International Speedway, Inc. which owns and operates the Michigan
Speedway, in Brooklyn, Michigan; (ii) The California Speedway Corporation, which
owns and operates The California Speedway near Los Angeles, California; (iii)
Pennsylvania International Raceway, Inc. which owns and operates the Nazareth
Motor Speedway in Nazareth, Pennsylvania; (iv) approximately seventy percent
(70%) of the stock of North Carolina Motor Speedway, Inc. which owns and
operates the North Carolina Motor Speedway, Rockingham, North Carolina; (v) a
forty percent (40%) interest in Homestead-Miami Speedway, LLC, the operator of
the Metro-Dade Homestead Motorsports Complex in Dade County, Florida; (vi) a
seven percent (7%) interest in Grand Prix Association of Long Beach, Inc.
(NASDAQ:GPLB) the owner and operator of the Toyota Grand Prix of Long Beach, the
annual CART PPG Cup Race run on the streets of Long Beach, California and the
owner and operator of Gateway International Raceway in Madison, Illinois and
Memphis Motorsports Park in Millington, Tennessee; (vii) Motorsports
International Corp., a motorsports apparel and memorabilia company; and (viii)
Competition
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KAISER VENTURES INC. AND SUBSIDIARIES
Tire West, Inc. and Competition Tire South, Inc., distributors of Goodyear
racing tires in the mid-west and southern regions of the United States.
In addition to PMI's recent acquisitions, on August 12, 1997, PMI announced
that it had entered into an option agreement to acquire approximately 640 acres
in Adams County, Colorado near Denver International Airport for possible
construction of a motorsports complex.
For the third quarter of 1997, PMI announced an 84% increase in gross revenues
to a record $44.0 million and a 36% increase in net income to a record $8.8
million or $0.63 per share. For the first nine months of the year, PMI
announced net income of $18.3 million or $1.33 per share. Due to the seasonal
nature of racing, losses are generally anticipated in the first and fourth
quarters of the year while earnings are generally anticipated in the second and
third quarters. As a result, the Company's reported share of PMI's net
income/loss will reflect the seasonal nature of PMI's business. The Company
began accounting for its share of PMI's net income as of April 1, 1996. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
The following table sets forth the range of the low and high reported bid
price of PMI's common stock for the first, second and third quarter of 1997, as
reported on the NASDAQ National Market System.
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1997: LOW HIGH
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Third Quarter $32.50 $34.58
Second Quarter $27.25 $32.38
First Quarter $25.00 $30.75
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On November 10, 1997, the closing price of PMI's common stock was $27.31.
PROPERTY REDEVELOPMENT
Mill Site Redevelopment Plan. During the third quarter the Company continued
its efforts to redevelop the balance of its Mill Site Property.
The formal entitlement and permitting process for a substantial portion of the
Company's Mill Site property continued during the third quarter. The formal
entitlement and permitting commenced in April 1997, when the Company filed an
application for a Specific Plan with San Bernardino County for all of its
property except for approximately 26 acres within the City of Rancho Cucamonga
and approximately 135 acres known as the East Slag Pile property. Most
technical studies are complete and preparation of a draft environmental impact
report is underway by the County's independent consultant. The entire
entitlement and permitting process is currently anticipated to be substantially
completed by the end of the first quarter of 1998. However, there is no
assurance that there will be delays in the entitlement and permitting
process.
Finally, the Company continues to undertake the environmental remediation
activities necessary to develop the Mill Site.
WEST VALLEY MATERIALS RECOVERY FACILITY
The West Valley MRF, a materials recycling and waste transfer facility, is
owned by West Valley MRF, LLC, a limited liability company, equally owned by
subsidiaries of the Company and Burrtec Waste
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KAISER VENTURES INC. AND SUBSIDIARIES
Industries, Inc. ("Burrtec"), Burrtec is a privately-held municipal waste hauler
company. The West Valley MRF is located on property previously owned by the
Company. Construction of Phase 1 of the Mill Site MRF, which includes a 62,000
square foot building, sorting equipment, and related facilities for waste
transfer and recycling services, is nearing final completion. Construction of
Phase 1 was sufficiently complete in October so as to allow the commencement of
limited waste transfer operations. Final construction and equipment costs for
Phase 1 are still anticipated to be within the original $10,300,000 budget for
the project.
NAPA LOTS
On September 30, 1997, a newly formed company owned by the same individuals as
Budway Enterprises, Inc. ("Budway"), a distributor of steel and other products,
completed the purchase of 15.7 acres of the Napa Lots for approximately
$2,943,000, or approximately $4.30 a square foot. The sales price increased
from the originally announced sales price of $4.25 per square foot due to the
extension of the original closing date of the transaction until September 30,
1997. At closing, the Company received $1,500,000 in cash, less normal closing
adjustments. The balance of the purchase price of approximately $1,443,000 is
represented by buyer's promissory note. The note requires a payment of
approximately $554,000 in principal in nine equal monthly installments plus
interest at ten percent (10%) per annum with the remaining principal balance of
approximately $909,000 payable $25,000 per quarter plus interest at the same ten
percent (10%) rate. All remaining principal and interest are due and payable on
the seventh anniversary of the note. The note is secured by a lien on the
property sold and by the guarantee of Budway and one of its individual owners.
The Company will subordinate its note receivable to the construction and
permanent financing for a warehouse and distribution center to be built on the
property. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations."
WASTE MANAGEMENT
EAGLE MOUNTAIN LANDFILL PROJECT
In 1988, the Company entered into a 100-year lease agreement (the "MRC Lease")
with MRC. MRC is seeking to develop the Company's former iron ore mine near
Eagle Mountain, California into a large, regional rail-haul, municipal solid
waste landfill. MRC became a subsidiary of the Company when the Company's
subsidiary, Eagle Mountain Reclamation, Inc., acquired a 70% interest in MRC
during the first quarter of 1995 in exchange for the elimination of the minimum
monthly rent due the Company under the MRC Lease. The elimination of the
minimum monthly rent did not change the future royalty payments due the Company
once the landfill commences operations.
Financing. Since its initial acquisition of an equity interest in MRC, the
Company, through its wholly-owned subsidiary, Eagle Mountain Reclamation, Inc.,
has made additional equity investments in MRC through a series of private
placements with other MRC shareholders. Currently, the Company's ownership
interest in MRC is approximately 73%. Because additional funding was needed to
continue permitting activities, MRC completed a private placement for $2.4
million during the third quarter with the Company agreeing to provide MRC with
up to 75%, or approximately $1.8 million, of the $2.4 million. A separate $2.5
million private placement was previously completed in the First Quarter of 1997,
with the Company's portion being approximately $1.9 million. With the
acceleration of certain expenditures it is also currently anticipated that the
Company may make additional equity contributions to MRC of up to $3.0 million in
1998. Financing in addition to that noted above will be required to complete
the permitting of the Landfill Project and to ultimately construct the Landfill
Project.
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KAISER VENTURES INC. AND SUBSIDIARIES
Approval by Riverside County of the Landfill Project. After approval of the
Landfill Project by the Riverside Planning Commission and after a number of
public hearings held by the Riverside County Board of Supervisors, on August 26,
1997, the Board of Supervisors, by a four to one vote, approved the Landfill
Project. Final approval of the Development Agreement and environmental impact
report ("EIR") for the Landfill Project and related land use matters was made by
the Board of Supervisors on September 9, 1997 by a three to one vote, with one
supervisor that previously voted in favor of the Landfill Project absent from
the meeting. In the opinion of the Company's management, approval of the
Landfill Project is a major step forward in the continued development of the
Landfill Project. MRC's and the Company's focus will now be on obtaining the
necessary technical permits for the Landfill Project, defending pending and
anticipated litigation involving the Landfill Project and completing the
proposed federal land exchange.
The Landfill Project was approved to receive up to 20,000 tons per day (6
days a week) of non-hazardous municipal sold waste. However, MRC is limited
during the first ten years of operations to 10,000 tons per day of non-County
waste plus the waste generated from within the County. After ten years, MRC may
request an increase in daily tonnage up to the maximum of 20,000 tons, but such
increase must be reviewed by and receive the approval of an independent
scientific panel as discussed in more detail below.
The Development Agreement. As a part of the process of considering the
Landfill Project, the Company and MRC negotiated a Development Agreement with
Riverside County. The Development Agreement, while in final form, is not
effective until consummation of the federal land exchange discussed below. In
summary, the Development Agreement among Riverside County, MRC, the Company, and
two of the Company's subsidiaries, Kaiser Eagle Mountain, Inc. and Eagle
Mountain Reclamation, Inc., provides the mechanism by which MRC acquires long
term vested land use rights for a landfill, and generally governs the
relationship among the parties to the Agreement. The Development Agreement also
addresses such items as the duties and indemnification obligations to Riverside
County, the extensive financial assurances to be provided to Riverside County,
the reservation and availability of landfill space for waste generated within
Riverside County, events of default and remedies as well as a number of other
items.
In addition, the financial payments to or for the benefit of Riverside County
and others are detailed in the Development Agreement and in the Purchase and
Sale Agreement, which is a part of the Development Agreement. The Purchase and
Sale Agreement requires a per ton payment on non-County waste determined from a
base rate which is the greater of $2.70 per ton or ten percent (10%) of the
landfill tip fee up to 12,000 tons of non-County waste. The 10% number
increases to 12 1/2% for all non-County waste once non-County waste exceeds
12,000 tons per day. The per ton payment to the County also increases as volume
increases. The per ton payments on non-County Waste to Riverside County are
summarized as follows:
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AVERAGE TONS PER DAY OF
NON-COUNTY WASTE PAYMENT TO RIVERSIDE COUNTY
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0 - 7,000 greater of 10% (12.5% once volume exceeds 12,000
tpd) or $2.70 ("Base")
7,000 - 10,000 Base plus $.80
10,000 - 12,000 Base + $1.30
12,000 - 16,000 Base + $2.30
16,000 - 20,000 Base + $3.30
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KAISER VENTURES INC. AND SUBSIDIARIES
Other major payments include: (i) partial funding for up to four rail
crossings with $1 million due at the commencement of construction of the
landfill and an additional $1 million over the course of landfill operations;
(ii) financial assistance for the host community, Lake Tamarisk, comprised of
$500,000 due at the commencement of construction of the landfill plus an
additional approximately $1.5 million due over the course of landfill
operations; and (iii) funding for non-California Environmental Quality Act
reduction air emission programs of $600,000 over the course of operations.
The initial term of the Development Agreement is fifty years. However, the
term can be extended to November 30, 2088. In order to obtain an increase in
the initial 50-year term of the Development Agreement and/or an increase in the
initial 10,000 tons per day limit on out-of-County waste, an independent
scientific panel is convened to review such a request. The scientific panel is
to be made up of five independent scientists and engineers selected by the
University of Riverside, California (the "University") with the approval of the
Company and MRC. If the University and the Company/MRC are unable to agree on
the panel members, two members are to be selected by the University, two by
MRC/the Company and the fifth member is to be selected by the other four
members. There are procedures in place if the University does not participate
in the selection of the panel members for any reason. The panel is to conduct
its review within eight months of any request. The panel, in effect, is to
limit its review to confirming that MRC has substantially complied with all
development approvals, the environmental mitigation measures and all regulatory
permits and that the potential environmental impacts of the landfill are the
same as identified in the EIR. There are various appeal procedures depending
upon the initial and final findings of the panel.
Environmental Trust Fund. Pursuant to the terms of the Development Agreement
and other related documents, $.90 of the per ton payment made to Riverside
County by MRC on out-of-County municipal solid waste will be deposited into an
environmental trust. In addition, MRC directly pays $.90 per ton into the
environmental trust for in-County waste deposited into the landfill. Funds in
the environmental trust are to be used within Riverside County for: (a) the
protection, acquisition, preservation, and restoration of parks, open space,
biological habitat, scenic, cultural, and scientific resources; (b) the support
of environmental education and research; (c) the mitigation of the Project's
environmental impacts; and (d) the long term monitoring of the above mentioned
items.
Finally, MRC has agreed to pay $.10 per ton of municipal solid waste deposited
into the landfill to the National Parks Foundation for the benefit of the
National Park Service.
State Litigation-Return to Writ. The state litigation surrounding the
Landfill Project has two subparts: the "return to the writ" previously issued by
the San Diego Superior Court and a newly filed lawsuit which is discussed in
more detail below. In 1994, the San Diego Superior Court ruled that the EIR for
the Landfill Project approved by Riverside Court in November, 1992 was defective
in eight areas. This resulted in the issuance of a writ (a form of legal
document) ordering Riverside County to comply with the court's decisions and the
California Environmental Quality Act ("CEQA"), which is the statutory basis for
the preparation and evaluation of an EIR. The County and MRC have sought to
comply with the court's decisions and the writ by preparing a new EIR and going
through the entire evaluation and political process again. This culminated in
the final approval of the EIR and related land use approvals by Riverside County
on September 9, 1997. On September 19, 1997, Riverside County filed with the
San Diego Superior Court a return to the writ which detailed the reasons as to
how the eight defects in the former EIR were remedied by the new EIR.
On September 30, 1997, there was a hearing before Judge McConnell of the San
Diego Superior Court with regard to the return to the writ. At the hearing,
Judge McConnell established various filing and
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KAISER VENTURES INC. AND SUBSIDIARIES
briefing deadlines and tentatively scheduled a hearing date on any objections to
the writ being satisfied by the new EIR. Subsequently, objections to the return
to the writ were filed by all the previous parties to the litigation except for
Eagle Crest Energy Company ("ECEC"). On October 20, 1997, the San Diego Superior
Court entered an order discharging the original objections of ECEC. The
remaining original project opponents maintain that MRC and the Company failed to
correct in the new EIR any of the eight deficiencies found to exist in the 1992
approved EIR. On November 10, 1997, there was a second hearing before Judge
McConnell which resulted in a modified briefing schedule and a new scheduled
hearing date. A hearing on the return to writ is currently schedule for December
31, 1997. However, there is no assurance that there will not be delays in this
matter and that a hearing on the return to the writ will actually be held on
December 31, 1997.
State Litigation-New Lawsuit. Under CEQA, participants in the administrative
and political process have the ability to commence litigation with regard to an
EIR within thirty days after the approval of the EIR. Several project opponents
did file a new lawsuit in Riverside County on October 10, 1997. The plaintiffs
in this new litigation are generally the same plaintiffs as in the lawsuit
commenced in 1992 with a few exceptions. Notably, ECEC and the City of Coachella
are not plaintiffs in the new lawsuit. There is only one new plaintiff, the
Center for Community Action and Environmental Justice, a local environmental
group originally organized to address environmental issues associated with the
String Fellows acid pits located in Riverside County.
The claims made in the petition are fairly typical of a CEQA lawsuit. The
only non-CEQA claim is a claim that the Development Agreement with Riverside
County violates California Proposition 218, an amendment to California's
constitution. Proposition 218 generally requires a vote of taxpayers if a new
tax is levied by a governmental or quasi-governmental entity.
MRC and the Company believe they have various defenses to the new litigation.
There are also deadlines prescribed by statute for CEQA lawsuits which should
result in a trial on the new CEQA causes of action, if one is necessary, by no
later than the summer of 1998.
Approval of Federal Land Exchange. In conjunction with the landfill
permitting process, the Company proposed transferring to the U.S. Bureau of Land
Management ("BLM") approximately 2,800 acres of Kaiser-owned property along the
railroad right-of-way, which property has been identified as prime desert
tortoise habitat, in exchange for fee ownership of approximately 3,500 acres of
primarily disturbed land within the Landfill Project area. The BLM announced on
September 25, 1997, its decision to approve the proposed federal land exchange
with the Company. Formal notice of the land exchange was published on October
6, 1997, which commenced a 45-day protest period with respect to the proposed
land exchange. When the protest period is over, the BLM will consider and
respond to any protests and take final administrative action. A decision on the
requested rights-of-way is anticipated to be made by the BLM at about the same
time as it responds to any protests to the proposed land exchange.
Risks. As is discussed in more detail in the Company's 1996 Form 10-K
Report, there are numerous risks associated with MRC and the Landfill Project
which must be overcome to achieve the financing, permitting, construction and
operation of the Landfill Project. There are active opponents to the Landfill
Project. Given the legal challenges that have occurred to date and the
controversies that generally surround landfill projects, additional legal
challenges are likely. In addition, there is and will be substantial
competition with other rail-haul projects as well as other landfills for waste.
The current anticipated time schedule for the Landfill Project is based on
forward-looking information and as a result, the time schedule may not be
achieved, because of the risks associated with the Project as well as delays
inherent in the process.
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KAISER VENTURES INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
SECTION 1: OPERATING RESULTS
Kaiser Ventures Inc. ("Kaiser" or the "Company") is an emerging asset
development company pursuing project opportunities and investments in activities
related to water resources, motorsports, property redevelopment and solid waste
management. The Company's long-term emphasis is on the further development of
its principal assets: (i) a 50.88% interest in Fontana Union Water Company
("Fontana Union"), a mutual water company; (ii) a 11.50% interest in Penske
Motorsports, Inc. ("PMI"), a publicly-traded professional motorsports company
that has developed the California Speedway ("TCS") on land acquired from the
Company; (iii) approximately a 73% interest in Mine Reclamation Corporation
("MRC"), the developer of the Eagle Mountain Landfill Project (the "Landfill
Project"); (iv) approximately 668 acres of the former Kaiser Steel Corporation
("KSC") steel mill site (the "Mill Site Property"); and (v) the 11,350 acre idle
iron ore mine in the California desert (the "Eagle Mountain Site"), which
includes the associated 460 acre town of Eagle Mountain ("Eagle Mountain
Townsite") and the land leased to MRC for the Landfill Project. The Company is
also pursuing other related longer-term growth opportunities on the balance of
its Mill Site Property, including the development of a transfer station and
materials recovery facility ("Mill Site MRF") and the redevelopment of
industrial and commercial parcels of land near TCS and the Mill Site MRF.
PRIMARY REVENUE SOURCES
ONGOING OPERATIONS
The Company's revenues from ongoing operations are generally derived from the
development of the Company's long-term projects. Revenues from water resources
represent payments under the lease of the Company's interest in Fontana Union to
Cucamonga County Water District ("Cucamonga"). Property redevelopment revenues
primarily reflect revenues from long-term redevelopment activities at the Mill
Site property; housing rental income, aggregate rock sales and lease payments
for the minimum security prison at the Eagle Mountain Townsite; and royalty
revenues from iron ore shipments from the Company's iron ore mine in California
(the "Silver Lake Mine"). Income from equity method investments reflect Kaiser's
share of income related to those equity investments (primarily PMI) and joint
ventures which the Company accounts for under the equity method.
INTERIM ACTIVITIES
Revenues from interim activities are generated from various sources primarily
related to the Mill Site Property. Significant components of interim activities
include rentals under short-term tenant lease arrangements, royalty revenues
from the sale of slag and metallics to outside contractors, water and wastewater
treatment service revenues (through 1996), revenues from the sale of excess
equipment and assets and other miscellaneous short-term activities.
SUMMARY OF REVENUE SOURCES
Due to the development nature of certain Company projects and the Company's
continuing recognition of revenues from bankruptcy-related and other non-
recurring items, historical period-to-period comparisons of total revenues may
not be meaningful for developing an overall understanding of the Company.
Therefore, the Company believes it is important to evaluate the trends in the
components of its revenues as
8
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KAISER VENTURES INC. AND SUBSIDIARIES
well as the recent developments regarding its long-term ongoing and interim
revenue sources. See "Part I, Item 1. Business" for a discussion of recent
material events affecting the Company's revenue sources.
In addition, due to the concentration of motorsport racing events between
April and September, PMI's operations have been, and will continue to be, highly
seasonal. Except for a limited number of event weekends in October, 1997 at
TCS and PMI's recently acquired North Carolina Speedway, PMI has no current
plans to host events in the first and fourth quarters at its existing
facilities. As a result, the Company's reported share of undistributed equity
in the earnings of PMI will likely be positive (income) in the second and third
quarters and negative (loss) in the first and fourth quarters.
RESULTS OF OPERATIONS
ANALYSIS OF RESULTS FOR THE QUARTERS ENDED SEPTEMBER 30, 1997 AND 1996
An analysis of the significant components of the Company's resource revenues
for the Quarters ended September 30, 1997 and 1996 follows:
<TABLE>
<CAPTION>
1997 1996 % INC. (DEC)
---- ---- ------------
<S> <C> <C> <C>
ONGOING OPERATIONS
Water resource.......................... $1,165,000 $ 944,000 23%
Property redevelopment.................. 383,000 295,000 30%
Income from equity method investments... 1,000,000 642,000 56%
---------- ----------
TOTAL ONGOING OPERATIONS.............. 2,548,000 1,881,000 35%
INTERIM ACTIVITIES
Lease, service and other................ 429,000 442,000 (3%)
---------- ----------
TOTAL RESOURCE REVENUES............... $2,977,000 $2,323,000 28%
========== ==========
REVENUES AS A PERCENTAGE OF TOTAL
RESOURCE REVENUES:
Ongoing operations...................... 86% 81%
Interim activities...................... 14% 19%
---------- ----------
TOTAL RESOURCE REVENUES............... 100% 100%
========== ==========
</TABLE>
Resource Revenues. Total resource revenues for the third quarter of 1997 were
$2,977,000, compared to $2,323,000 for 1996. Revenues from ongoing operations
increased 35% during the quarter to $2,548,000 from $1,881,000 in 1996, while
revenues from interim activities decreased 3% to $429,000 from $442,000 in 1996.
Revenues from ongoing operations as a percentage of total revenues increased to
86% in 1997 from 81% in 1996.
Ongoing Operations. Water lease revenues under the Company's 102-year take-
or-pay lease with Cucamonga were $1,165,000 during the third quarter of 1997
compared to $944,000 for 1996. The 23% increase in water revenues during the
quarter primarily reflects: (a) an increase, as of February 1, 1997, in the
effective non-interruptible untreated water rate being paid by Cucamonga from
$346.00 to $351.00 per acre foot; and (b) a return to the maximum amount of
water that Cucamonga (through Fontana Union) can draw from the Colton/Rialto
Basin wells. As previously disclosed, the annual amount of water available to
Fontana Union from such wells was temporarily reduced during 1996 to 720 acre
feet from 3,000 acre feet due to low water levels detected in the Colton/Rialto
Basin wells.
9
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
In addition, as also previously disclosed, Metropolitan Water District of
Southern California ("MWD"), effective July 1, 1995, implemented changed rates
and a changed rate structure which resulted in the continuing lease
interpretation dispute with Cucamonga regarding the extent of the MWD rate
increases. Although the Company is continuing to bill Cucamonga at what it
believes is the correct MWD rate under the lease with Cucamonga, the Company has
elected to reserve the full amount in dispute and report revenues on the basis
of amounts actually received from Cucamonga. The total amount of lease payments
in dispute as of September 30, 1997 is approximately $1,165,000. MWD has stated
that it may further refine its rate structure in the future.
Property redevelopment revenues were $383,000 for 1997 compared to $295,000
for 1996. The 30% increase from 1996 is primarily a result of the
reclassification of the Mill Site sewer treatment plant service fees as property
redevelopment revenues as a result of the Company's renovation of the plant and
its renewed commitment to provide sewer services to PMI and future Mill Site
tenants ($78,000).
Income from equity method investments increased to $1,000,000 for the third
quarter of 1997 compared to $642,000 for 1996. The increase of $358,000 reflects
the Company's share of the reported third quarter net income of PMI, of which
the Company recorded its 11.50% share ($520,000) partially offset by the
elimination of the management fee which the Company received from PMI through
March 31, 1997, ($162,000). The Company is recording its investment in PMI on
the equity method and began recording its share of PMI's net income concurrent
with conversion of the Company's preferred stock into common stock at the end of
the first quarter of 1996.
Interim Activities. Revenues from interim activities for the third quarter of
1997 were $429,000 compared to $442,000 for 1996. The 3% decrease in revenues
from interim activities in 1997 is primarily attributable to lower revenues from
tenant services, from metallics and scrap sales ($30,000), and from the
reclassification of the sewer treatment plant service fees as property
redevelopment revenues ($54,000) being partially offset by increases in Mill
Site tenant revenue ($49,000) and slag revenue ($24,000).
Resource Operating Costs. Resource operating costs are those costs directly
related to the resource revenue sources. Total resource operating costs for the
third quarter of 1997 increased to $916,000 from $834,000 in 1996. Operations
and maintenance costs for 1997 were $341,000 compared to $303,000 for 1996. The
13% increase in 1997 operations and maintenance costs was primarily due to
higher property tax expense associated with the completed offsite improvements
for portions of the Mill Site property ($16,000) and increased maintenance and
supplies costs for buildings and equipment ($26,000). Administrative support
expenses for the third quarter of 1997 increased 8% to $575,000 from $531,000
for 1996. This increase was primarily due to higher outside professional costs
($11,000), increases in insurance expense relating to the addition of
environmental pollution insurance coverage for the Mill Site ($12,000) and
depreciation expense relating to the newly completed railroad and sewer plant
improvements at the Mill Site ($21,000).
Corporate General and Administrative Expenses. Corporate general and
administrative expenses for the third quarter of 1997 increased 12% to $912,000
from $812,000 for 1996. The increase is primarily due to higher payroll and
related expenses ($70,000) and higher professional and outside consulting
expenses ($25,000).
Net Interest Expense. Net interest expense for the third quarter of 1997 was
$276,000 compared to $156,000 in 1996. The increase was due primarily to the
interest expense ($92,000) associated with the $3,000,000 in additional
borrowings under the Union Bank of California ("Union Bank") credit facility.
10
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
Pre-Tax Income and Income Tax Provision. The Company recorded income
before income tax provision of $873,000 for the third quarter of 1997, a 68%
increase from the $521,000 recorded in 1996. An income tax expense of $380,000
was recorded in the third quarter of 1997 as compared with $225,000 in 1996.
Historically, over 90% of the tax provisions are not currently payable due
primarily to utilization of the Company's net operating loss carryforwards
("NOL's"). Consequently, pretax income is an important indicator of the
Company's performance.
Net Income. For third quarter of 1997, the Company reported net income of
$493,000, or $.05 per share, a 67% increase from the net income of $296,000, or
$.03 per share, reported for 1996.
Mill Site land sale. During the third quarter of 1997 the Company sold
approximately 15.7 acres of the Mill Site Property to McLeod Properties, Fontana
LLC for $2,943,000, or $4.30 per square foot, for use as a rail-truck intermodal
distribution facility for Budway Enterprises, Inc. The transaction closed on
September 30, 1997 at which time the Company received $1,500,000 in cash and a
note receivable for $1,443,000. The Company has agreed to subordinate its note
receivable to a construction / permanent loan in order to facilitate the
construction of a building on the property. Although the Company considers the
sale to have been fully consummated during the third quarter, generally accepted
accounting principles require the gain to be deferred and recognized under the
cost recovery method, once proceeds received from the buyer exceeds the
Company's basis in the property sold.
ANALYSIS OF RESULTS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1997 AND 1996
An analysis of the significant components of the Company's resource revenues
for the nine months ended September 30, 1997 and 1996 follows:
<TABLE>
<CAPTION>
1997 1996 % INC. (DEC)
---- ---- -------------
<S> <C> <C> <C>
ONGOING OPERATIONS
Water resource.......................... $3,462,000 $3,060,000 13%
Property redevelopment.................. 1,114,000 835,000 33%
Income from equity method investments... 2,227,000 1,526,000 46%
---------- ----------
TOTAL ONGOING OPERATIONS................ 6,803,000 5,421,000 25%
INTERIM ACTIVITIES
Lease, service and other................ 1,232,000 1,327,000 (7%)
---------- ----------
TOTAL RESOURCE REVENUES................. $8,035,000 $6,748,000 19%
========== ==========
REVENUES AS A PERCENTAGE OF TOTAL
RESOURCE REVENUES:
Ongoing operations...................... 85% 80%
Interim activities...................... 15% 20%
---------- ----------
TOTAL RESOURCE REVENUES................. 100% 100%
========== ==========
</TABLE>
Resource Revenues. Total resource revenues for the nine months of 1997 were
$8,035,000, compared to $6,748,000 for 1996. Revenues from ongoing operations
increased 25% during the nine months to $6,803,000 from $5,421,000 in 1996,
while revenues from interim activities declined 7% to $1,232,000 from $1,327,000
in 1996. Revenues from ongoing operations as a percentage of total revenues
increased to 85% in 1997 from 80% in 1996.
11
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
Ongoing Operations. Water lease revenues under the Company's 102-year take-
or-pay lease with Cucamonga were $3,462,000 during the nine months of 1997
compared to $3,060,000 for 1996. The 13% increase in water revenues during the
quarter primarily reflects: (a) an increase, as of February 1, 1997, in the
effective non-interruptible untreated water rate being paid by Cucamonga from
$346.00 to $351.00 per acre foot; and (b) a return to the maximum amount of
water that Cucamonga (through Fontana Union) can draw from the Colton/Rialto
Basin wells. As previously disclosed, the annual amount of water available to
Fontana Union from such wells was temporarily reduced during 1996 to 720 acre
feet from 3,000 acre feet due to low water levels detected in the Colton/Rialto
Basin wells.
In addition, as also previously disclosed, Metropolitan Water District of
Southern California ("MWD"), effective July 1, 1995, implemented changed rates
and a changed rate structure which resulted in the continuing lease
interpretation dispute with Cucamonga regarding the extent of the MWD rate
increases. Although the Company is continuing to bill Cucamonga at what it
believes is the correct MWD rate under the lease with Cucamonga, the Company has
elected to reserve the full amount in dispute and report revenues on the basis
of amounts actually received from Cucamonga. The total amount of lease payments
in dispute as of September 30, 1997 is approximately $1,165,000. MWD has stated
that it may further refine its rate structure in the future.
Property redevelopment revenues were $1,114,000 for 1997 compared to $835,000
for 1996. The 33% increase from 1996 is primarily a result of: (a) the
reclassification of the Mill Site sewer treatment plant service fees as property
redevelopment revenues as a result of the Company's renovation of the plant and
its renewed commitment to provide sewer services to PMI and future Mill Site
tenants ($214,000); and (b) higher iron ore and aggregate sales ($62,000).
Income from equity method investments increased to $2,227,000 for the nine
months of 1997 compared to $1,526,000 for 1996. The increase of $701,000
reflects the Company's share of the reported net income of PMI for the nine
months, of which the Company recorded its 11.91% share ($1,026,000) partially
offset by the elimination of the management fee which the Company received from
PMI through March 31, 1997, ($325,000). The Company's equity interest in PMI
declined, as of June 1, 1997, from 12.29% to 11.50% as a result of the
approximate 907,000 shares that PMI issued in connection with the acquisition of
a majority interest in North Carolina Motor Speedway, Inc. The Company is
recording its investment in PMI on the equity method and began recording its
share of PMI's net income concurrent with conversion of the Company's preferred
stock into common stock at the end of the first quarter of 1996.
Interim Activities. Revenues from interim activities for the nine months of
1997 were $1,232,000 compared to $1,327,000 for 1996. The 7% decrease in
revenues from interim activities in 1997 is primarily attributable to lower
revenues from tenant services, from metallics and scrap sales ($195,000), and
from the reclassification of the sewer treatment plant service fees as property
redevelopment revenues ($161,000); being partially offset by increases in tenant
rental revenue ($88,000), railroad switching revenue ($82,000), and slag revenue
($91,000).
Resource Operating Costs. Resource operating costs are those costs directly
related to the resource revenue sources. Total resource operating costs for the
nine months of 1997 increased to $2,623,000 from $2,388,000 in 1996. Operations
and maintenance costs for 1997 were $972,000 compared to $812,000 for 1996. The
20% increase in 1997 operations and maintenance costs was primarily due to
higher property tax expense associated with the completed offsite improvements
for portions of the Mill Site property ($72,000) and increased maintenance and
supplies costs for buildings and equipment ($76,000). Administrative support
expenses for the nine months of 1997 increased 5% to $1,651,000 from $1,576,000
for 1996. This
12
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
increase was primarily due to increases in insurance expense relating to the
addition of environmental pollution insurance coverage for the Mill Site
($63,000) and depreciation expense relating to the newly completed railroad and
sewer plant improvements at the Mill Site ($40,000), partially offset by lower
salaries and outside professional costs ($30,000).
Corporate General and Administrative Expenses. Corporate general and
administrative expenses for the nine months of 1997 increased 15% to $3,087,000
from $2,690,000 for 1996. The increase is due to higher salary and related
expenses ($144,000) and higher professional and outside consulting expenses
($252,000).
Net Interest Expense. Net interest expense for the nine months of 1997 was
$696,000 compared to $406,000 in 1996. The increase was due primarily to the
interest expense associated with the $3,000,000 in additional borrowings under
the Union Bank credit facility ($242,000).
Pre-Tax Income and Income Tax Provision. The Company recorded income before
income tax provision of $1,629,000 for the nine months of 1997, a 29% increase
from the $1,264,000 pretax income recorded in 1996. An income tax provision of
$706,000 was recorded in the nine months of 1997 as compared with $547,000 in
1996. Historically, over 90% of the tax provisions are not currently payable
due primarily to utilization of the Company's net operating loss carryforwards
("NOL's"). Consequently, pretax income is an important indicator of the
Company's performance.
Net Income. For the first nine months of 1997, the Company reported net
income of $923,000, or $.09 per share, a 29% increase from the $717,000, or $.07
per share, reported for 1996.
Mill Site land sale. During the third quarter of 1997 the Company sold
approximately 15.7 acres of the Mill Site Property to McLeod Properties, Fontana
LLC for $2,943,000, or $4.30 per square foot, for use as a rail-truck intermodal
distribution facility for Budway Enterprises, Inc. The transaction closed on
September 30, 1997 at which time the Company received $1,500,000 in cash and a
note receivable for $1,443,000. The Company has agreed to subordinate its note
receivable to a construction/permanent loan in order to facilitate the
construction of a building on the property. Although the Company considers the
sale to have been fully consummated during the third quarter, generally accepted
accounting principles require the gain to be deferred and recognized under the
cost recovery method, once proceeds received from the buyer exceeds the
Company's basis in the property sold.
SECTION 2: FINANCIAL POSITION
Cash, and Cash Equivalents. The Company defines cash equivalents as highly
liquid debt instruments with original maturities of 90 days or less. Cash and
cash equivalents decreased $2,196,000 to $6,286,000 at September 30, 1997 from
$8,482,000 at December 31, 1996. Included in cash and cash equivalents is
$3,246,000 and $1,766,000 held solely for the benefit of MRC at September 30,
1997 and December 31, 1996, respectively. The decrease in cash and cash
equivalents is due primarily to the funding of $5,387,000 in capital
expenditures and $1,494,000 in environmental remediation.
Working Capital. During the nine months of 1997, current assets decreased
$2,856,000 to $8,962,000 while current liabilities increased $4,561,000 to
$17,619,000. The decrease in current assets resulted primarily from the
$2,196,000 decrease in cash and cash equivalents, discussed above, and a
$1,280,000 decrease in accounts receivable, partially offset by a $584,000
increase in notes receivable. The increase in current liabilities resulted
primarily from the reclassification from long term to current liabilities of the
note payable issued as part of the purchase of the Lusk Joint Ventures
($4,900,000). The balance of this note
13
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
payable is due in July 1998. Also included in current liabilities at September
30, 1997 and December 31, 1996 is $6,286,000 and $5,757,000, respectively, for
environmental remediation expenditures expected to be incurred over the next 12
months. Finally, current liabilities at September 30, 1997, and December 31,
1996 include $1,566,000 and $1,616,000, respectively, in accounts payable and
accrued liabilities relating to MRC. As a result, working capital decreased
during the nine months of 1997 by $7,417,000 to a negative $8,657,000 at
September 30, 1997.
Real Estate. Real Estate decreased $3,487,000 during the first nine months
of 1997 due: (a) to the closing of the Company's restructured joint venture with
Burrtec Waste Industries for the West Valley MRF and the resulting contribution
of 23 acres of land into West Valley MRF, LLC ($2,199,000); and (b) the sale of
15.7 acres of land to McLeod Properties, Fontana, LLC ($2,225,000). These
reductions were partially offset by capital expenditures ($937,000) related to
continuing redevelopment of the Mill Site properties.
Investments. The increase in investment in PMI is related to: (a) the
Company's recording of an increase in its equity investment in PMI as a result
of PMI's issuance of 907,000 shares of common stock in order to increase its
investment in North Carolina Motor Speedway ("NCMS") from 4.5% to 70%
($3,128,000) and; (b) the Company's recording of its share of equity in PMI's
undistributed income during the first nine months of 1997 ($2,115,000). The
increase in investment in West Valley MRF LLC ($1,488,000) is due to Kaiser's
contribution of the land into the joint venture ($2,199,000) partially being
offset by net reimbursements from the joint venture ($711,000).
Other Assets. The increase in other assets ($5,184,000) is primarily
related to: a) capitalized landfill permitting and development costs incurred by
MRC ($3,400,000); b) the long term portion of the note receivable associated
with the Mill Site (Napa Lot) land sale ($860,000) and; c) railroad and sewer
plant improvements at the Mill Site ($1,120,000). These increases were partially
offset by an increase in accumulated depreciation of $271,000.
Environmental Remediation. As is discussed extensively in the Company's 1996
Form 10-K Report, the Company estimates, based upon current information, that
its future remediation and other environmental costs for the balance of its land
and related matters, including groundwater and other possible third party
claims, will be between approximately $20 million and $32 million, depending
both upon the ultimate extent of the environmental remediation and clean-up
effort involved and which approved remediation alternatives are eventually
selected. In addition, the Company elected, in 1996, to restate its balance
sheets to show as a separate liability rather than, as previously, an offset to
land, the amount of future environmental related costs reflected in its
financial statements. The restatement reflects the original $34.7 million
remediation adjustment to land; the $6.6 million groundwater remediation reserve
recorded in 1988 when the Company emerged from bankruptcy as the reorganized
successor of KSC; and the net $12.5 million in environmental insurance
litigation settlement proceeds received in 1995 being offset by approximately
$22.3 million in remediation and other environmental costs expended through
September 30, 1997.
As of September 30, 1997, the total short-term and long-term environmental
liabilities including remediation reflected on the Company's balance sheet was
approximately $30.9 million, the high end of the probable range of future
remediation and other environmental costs, which declined from the $32.2 million
as of December 31, 1996. The decrease is a result, primarily, of the $1.3
million in remediation and other environmental costs incurred on the Mill Site
property during the first nine months of 1997.
14
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
Although ongoing environmental investigations are being conducted on the Mill
Site Property and management believes it is currently in a position to estimate
with some reasonable certainty future investigation and remediation costs, there
can be no assurance that the actual amount of environmental remediation
expenditures to be incurred will not substantially exceed those currently
anticipated or that additional areas of contamination may not be identified.
Accordingly, future facts and circumstances could cause these estimates to
change significantly.
Long-term Debt. As of September 30, 1997, the Company had $4,000,000 in long-
term debt, comprised solely of borrowings under the $30,000,000 revolving-to-
term credit facility with Union Bank. The other debt related to the purchase of
properties from the Lusk Joint Ventures was reclassified to current liabilities
in July 1997 since the balance of the note is due in July 1998.
Long-term Liabilities. The decrease in other long-term liabilities is
primarily due to: a) the $1,265,000 in environmental remediation undertaken
during the first nine months of 1997; b) the reclassification of $527,000 from
long term into current environmental remediation; c) partially off set by the
deferral of $656,000 in gain on the sale of real estate; and d) the $191,000
increase in deferred tax liabilities associated with the increase in the
investment in PMI, from its purchase of NCMS with common stock.
Minority Interest. As of September 30, 1997, the Company has recorded
$2,878,000 of minority interest relating to MRC in which the Company had
approximately a 73% equity interest.
Contingent Liabilities. The Company has contingent liabilities more fully
described in the notes to the financial statements.
Stockholders' Equity. The $4,845,000 increase in stockholders' equity for the
nine months ended September 30, 1997 included: a) the write-up of the investment
in PMI due to the use of PMI common stock for an increase in its investment
in North Carolina Motor Speedway from 4.5% to 70% ($2,937,000); b) net income
($923,000); c) issuance of common stock ($330,000); and d) deferred tax expense
credited to equity due to the utilization of the Company's reorganization NOL
carryforwards ($655,000). (See Note 2).
SECTION 3: BUSINESS OUTLOOK
The statements contained in this Business Outlook are based upon current
expectations. In addition to the forward-looking statements and information
contained elsewhere in this Report and the Company's previously filed Form 10-K
and Form 10-Q Reports, these statements are forward-looking and, therefore,
actual results may differ materially.
On-Going Operations. As noted above, the Company's revenues from ongoing
operations are generally derived from the development of the Company's major
long-term projects and investments. The development of a number of these
projects and investments, such as the take-or-pay lease with Cucamonga and the
11.50% equity ownership in PMI, are essentially complete and the Company is
recognizing significant revenues and income from these investments. The Company
expects revenues from these projects and investments to increase moderately over
time as certain key economic factors impacting these projects and investments
increase.
In regard to the lease with Cucamonga, the most significant economic factor
affecting future water lease revenues is likely to be adjustments in the MWD
rate for untreated and non-interruptible water as available through the Chino
Basin Municipal Water District (the "Lease Rate") upon which the lease
15
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
payments are calculated. The MWD rate established for untreated, non-
interruptible water is based on a number of factors, including MWD's need for
funds to finance capital improvements and to cover large fixed overhead costs.
After increasing at an average of approximately 9.0% per year during the past 35
years, MWD is projecting that the MWD rate for untreated, non-interruptible
water, including all of the changed rates and charges implemented by MWD since
July 1, 1995, will likely increase at less than 5.0% per year for the next 3-5
years. This reduction is due to a reduced capital budget, lower overhead, lower
borrowing costs and reduced levels of inflation. Also affecting the Company's
future water lease revenues is the dispute with Cucamonga regarding the
calculation of the Lease Rate. A ruling in favor of the Company would result in
the receipt of all or a portion of the $1,165,000 of lease payments in dispute
as of September 30, 1997, which the Company has fully reserved.
In regard to the Company's 11.50% investment in PMI, the most significant
factors affecting the Company's future equity income from PMI will be the
increased revenues and net income generated by PMI from the expansion of its
professional motorsports operations. Critical to this expansion is the success
of TCS as well as PMI's ability to enhance the revenues and earnings from its
two recent major acquisitions: a 70% interest in North Carolina Motorspeedway,
Inc. and a 40% interest in Homestead-Miami Speedway, LLC. The success of the
events at TCS and at the newly acquired race tracks, coupled with the results of
the other major racing events schedule for PMI's MIS and Nazareth speedways and
PMI's other motorsports related operations, will determine the amount of income
from equity method investments the Company reports in the future.
The Company is also spending a significant amount of capital in the continued
development of its two other major project and investment opportunities: the
redevelopment of the remaining approximately 668 acres (gross) of the Company's
Mill Site Property and the re-permitting of the Eagle Mountain Landfill by MRC,
the Company's 73% owned subsidiary. If it is successful in completing the
development of these two projects as planned, the Company expects to generate
significant future revenues and net income from them. However, as is noted
elsewhere in this Report, there are also numerous risks associated with
completing the re-permitting of the Eagle Mountain Landfill and the
redevelopment of the remaining Mill Site Property that could materially impact
the Company's future revenues and net income from these projects.
In regard to the redevelopment of the remaining approximately 600 acres (net)
of the Mill Site Property, the Company is currently undertaking efforts to
obtain the entitlement and permits necessary to develop approximately 466 acres
(net) for a variety of possible commercial, industrial and recreational uses.
These efforts, which will continue throughout 1997 and into 1998, include the
approval of possible changes that would alter and improve the existing access to
portions of the Mill Site Property. In support of these efforts, the Company
expects to spend, in 1997, up to approximately $7.3 million for required
environmental remediation and approximately $4.4 million for real estate
entitlement and improvement expenditures. The $7.3 million to be spent in 1997
for required environmental remediation is a component of the $20-32 million
estimated to complete all future remediation and other environmental costs
relating to the Mill Site Property. In addition, substantial capital
expenditures beyond the $4.4 million projected for 1997 will be required to
complete the necessary on-site and off-site improvements for the redevelopment
of remaining Mill Site property.
The West Valley MRF, which the Company and Burrtec Waste Industries Inc.
jointly own, is under construction on 23 acres of the Mill Site property
adjacent to TCS. Financing for the construction of the West Valley MRF is in
place and the facility commenced limited operations in October 1997. The
ultimate success of West Valley MRF is dependent upon the ability of Burrtec
Waste Industries Inc. to negotiate
16
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
economically viable agreements with local communities and waste handlers to
bring their municipal and recyclable waste to the West Valley MRF.
In regard to the Eagle Mountain Landfill, MRC continues to pursue the
activities necessary to re-permit the Landfill Project. The final EIR/EIS was
completed and released in January 1997 and on May 7, 1997 the Riverside County
Planning Commission voted to approve the EIR and forward its recommendations to
the Riverside County Board of Supervisors. The Riverside County Board of
Supervisors gave final approval to the Landfill Project on September 9, 1997.
The Company is now involved in defending the EIR/EIS from litigation brought by
the opponents to the Landfill Project in an effort to block the Landfill
Project. The Company spent $3.7 million for support of MRC's landfill re-
permitting and litigation defense efforts in 1997 and expects to spend up to an
additional $3.0 million in 1998.
Capital Resources. The Company expects that its current cash balances and
short-term investments together with: (a) cash provided from operating
activities; (b) amounts available under its revolving-to-term credit facility
with Union Bank (less $4,850,000 reserved for financial assurances required by
the DTSC and relating to environmental remediation on the Mill Site Property)
will be sufficient to satisfy both the Company's near-term operating cash
requirements and to enable the Company to continue to fund the development of
its long-term projects and investments. As was discussed in more detail above,
the Company expects to commit, in 1997, a total of approximately $15.4 million
for capital projects and investments. To the extent that additional capital
resources are required, such capital will be raised through bank borrowings,
partnerships, joint venture arrangements, additional equity or the sales or
monetization of assets.
Improved Cash Flow from Use of Net Operating Loss Tax Carryforwards. Due to
the Company's status as the reorganized successor to KSC and its use of KSC-
related NOLs, income taxes actually paid by the Company are substantially less
than the income tax provision reported in its financial statements. The tax
benefit associated with the utilization of these NOLs is reflected as an
increase to stockholders' equity rather than as an increase to net income. The
Company expects that its use of these NOLs will substantially reduce the cash
paid for income taxes until these NOLs are fully utilized. The total NOLs at
December 31, 1997, are estimated to be approximately $112.9 million for federal
purposes and $10.3 million for California purposes. The federal NOLs expire in
varying amounts over a period from year 2000 to 2010 while the California NOLs
expire in year 1997 and 2000.
If within a three-year period, 50% or more of the stock of the Company changes
ownership, the future annual use of NOLs may be limited. The annual limitation
would be calculated as the product of: (i) the highest long-term tax-exempt
rate for a designated period prior to the ownership change; and (ii) the market
value of the Company at such time.
17
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
AS OF
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1997 1996
---- ----
<S> <C> <C>
(Unaudited)
ASSETS
Current Assets
Cash and cash equivalents.................................. $ 6,286,000 $ 8,482,000
Accounts receivable and other, net of allowance for
doubtful accounts of $1,478,000 and $1,034,000,
respectively........................................... 1,973,000 3,217,000
Insurance settlement receivable............................ 119,000 119,000
Note receivable............................................ 584,000 ---
------------ ------------
8,962,000 11,818,000
------------ ------------
Investment in common stock of Penske Motorsports, Inc.
(Fair market value of 1,627,923 shares equal to
$54,485,000 as of September 30, 1997)...................... 44,106,000 38,863,000
------------ ------------
Investment in Fontana Union Water Company..................... 16,108,000 16,108,000
------------ ------------
Investment in West Valley MRF................................. 2,512,000 1,024,000
------------ ------------
Real Estate
Land and improvements...................................... 55,180,000 52,274,000
Real estate under development.............................. --- 6,393,000
------------ ------------
55,180,000 58,667,000
------------ ------------
Other Assets
Note Receivable............................................ 860,000 ---
Landfill permitting and development........................ 9,030,000 5,645,000
Buildings and equipment (net).............................. 3,149,000 2,210,000
------------ ------------
13,039,000 7,855,000
------------ ------------
Total Assets.................................................. $139,907,000 $134,335,000
============ ============
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
18
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
AS OF
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1997 1996
---- ----
(Unaudited)
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Accounts payable.......................................... $ 1,680,000 $ 2,936,000
Accrued liabilities....................................... 4,491,000 4,125,000
Current portion of long-term debt......................... 5,162,000 240,000
Environmental remediation................................. 6,286,000 5,757,000
------------ ------------
17,619,000 13,058,000
------------ ------------
Long-term Liabilities
Deferred gain on sale of real estate...................... 656,000 ---
Accrued liabilities....................................... 1,638,000 1,685,000
Deferred tax liabilities.................................. 2,149,000 1,958,000
Long-term debt............................................ 4,000,000 8,102,000
Environmental remediation................................. 24,674,000 26,466,000
------------ ------------
33,117,000 38,211,000
------------ ------------
Total Liabilities............................................ 50,736,000 51,269,000
------------ ------------
Minority Interest............................................ 2,878,000 1,618,000
------------ ------------
Commitments and Contingencies
Stockholders' Equity
Common stock, par value $.03 per share, authorized
13,333,333 shares; issued and outstanding
10,584,760 and 10,488,114 respectively................ 318,000 315,000
Capital in excess of par value............................ 74,356,000 70,437,000
Retained earnings since November 15, 1988................. 11,619,000 10,696,000
------------ ------------
Total Stockholders' Equity................................... 86,293,000 81,448,000
------------ ------------
Total Liabilities and Stockholders' Equity................... $139,907,000 $134,335,000
============ ============
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
19
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1997 AND 1996
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30 SEPTEMBER 30
------------------------- --------------------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
RESOURCE REVENUES
Ongoing Operations
Water resource............................ $ 1,165,000 $ 944,000 $ 3,462,000 $ 3,060,000
Property redevelopment.................... 383,000 295,000 1,114,000 835,000
Income from equity method investments..... 1,000,000 642,000 2,227,000 1,526,000
----------- ----------- ----------- -----------
Total ongoing operations................ 2,548,000 1,881,000 6,803,000 5,421,000
----------- ----------- ----------- -----------
Interim Activities
Lease, service and other.................. 429,000 442,000 1,232,000 1,327,000
----------- ----------- ----------- -----------
Total resource revenues................. 2,977,000 2,323,000 8,035,000 6,748,000
----------- ----------- ----------- -----------
RESOURCE OPERATING COSTS
Operations and maintenance..................... 341,000 303,000 972,000 812,000
Administrative support expenses................ 575,000 531,000 1,651,000 1,576,000
----------- ----------- ----------- -----------
Total resource operating costs.......... 916,000 834,000 2,623,000 2,388,000
----------- ----------- ----------- -----------
INCOME FROM RESOURCES........................... 2,061,000 1,489,000 5,412,000 4,360,000
Corporate general and administrative
expenses...................................... 912,000 812,000 3,087,000 2,690,000
----------- ----------- ----------- -----------
INCOME FROM OPERATIONS.......................... 1,149,000 677,000 2,325,000 1,670,000
Net Interest expense (income).................. 276,000 156,000 696,000 406,000
----------- ----------- ----------- -----------
INCOME BEFORE INCOME TAX PROVISION.............. 873,000 521,000 1,629,000 1,264,000
Income tax provision
Currently payable........................ 28,000 16,000 51,000 39,000
Deferred tax expense credited to equity.. 352,000 209,000 655,000 508,000
----------- ----------- ----------- -----------
NET INCOME...................................... $ 493,000 $ 296,000 $ 923,000 $ 717,000
=========== =========== =========== ===========
EARNINGS PER SHARE.............................. $ .05 $ .03 $ .09 $ .07
=========== =========== =========== ===========
Weighted Average Number of Shares
Outstanding.................................... 10,793,000 10,708,000 10,762,000 10,722,000
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
20
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30
(UNAUDITED)
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income..................................................... $ 923,000 $ 717,000
Provision for income tax which is credited to equity........... 655,000 508,000
Equity income in Penske Motorsports Inc........................ (2,065,000) (1,039,000)
Depreciation and amortization.................................. 542,000 538,000
Allowance for doubtful accounts................................ 28,000 339,000
Changes in assets:
Accounts receivable and other.............................. 1,296,000 6,707,000
Changes in liabilities:
Current liabilities........................................ 516,000 (3,419,000)
----------- ------------
Net cash flows from operating activities....................... 1,895,000 4,351,000
----------- ------------
CASH FLOWS FROM INVESTING ACTIVITIES
Minority interest and other liabilities........................ 1,260,000 605,000
Proceeds from Mill Site land sale.............................. 1,500,000 ---
Investment in Penske Motorsports, Inc.......................... --- 236,000
Environmental remediation expenditures......................... (1,494,000) (5,223,000)
Capital expenditures........................................... (5,387,000) (6,858,000)
Other investments.............................................. (762,000) (219,000)
----------- ------------
Net cash flows from investing activities....................... (4,883,000) (11,459,000)
----------- ------------
CASH FLOWS FROM FINANCING ACTIVITIES
Issuance of common stock....................................... 147,000 121,000
Borrowings under revolver-to-term credit facility.............. 2,000,000 3,000,000
Payment of loan fees........................................... (175,000) ---
Principal payments on note payable............................. (1,180,000) (180,000)
----------- ------------
Net cash flows from financing activities....................... 792,000 2,941,000
----------- ------------
NET CHANGES IN CASH AND CASH EQUIVALENTS.......................... (2,196,000) (4,167,000)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR.................... 8,482,000 10,937,000
----------- ------------
CASH AND CASH EQUIVALENTS AT END OF THE PERIOD.................... $ 6,286,000 $ 6,770,000
=========== ============
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
21
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1997
(Unaudited)
<TABLE>
<CAPTION>
COMMON STOCK CAPITAL IN
------------------------- EXCESS OF RETAINED
SHARES AMOUNT PAR VALUE EARNINGS TOTAL
----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1996............ 10,488,114 $315,000 $70,437,000 $10,696,000 $81,448,000
Increase in investment in Penske
Motorsports, Inc.................... --- --- 2,937,000 --- 2,937,000
Issuance of shares of
Common stock........................ 96,646 3,000 327,000 --- 330,000
Provision for income tax
Credited to equity.................. --- --- 655,000 --- 655,000
Net Income........................... --- --- --- 923,000 923,000
---------- --------- ----------- ------------ -----------
Balance at September 30, 1997........... 10,584,760 $318,000 $74,356,000 $11,619,000 $86,293,000
========== ========= =========== ============ ===========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
22
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1. BASIS OF PRESENTATION
The unaudited, consolidated financial statements as of September 30, 1997, and
for the three and nine month periods ended September 30, 1997 and 1996, as well
as related notes should be read in conjunction with the audited consolidated
financial statements and related notes as of and for the year ended December 31,
1996. In the opinion of management, the accompanying unaudited financial
statements contain all adjustments necessary (all of which are normal and/or
recurring in nature) to present fairly the Company's financial position at
September 30, 1997, and results of operations and cash flows for the three and
nine month periods ended September 30, 1997 and 1996.
The Company has reclassified certain 1996 information to conform with the 1997
presentation.
NOTE 2. STOCKHOLDERS' EQUITY
During 1997 and 1996 the Company recorded transactions directly to
stockholders' equity other than changes resulting from net income or equity
transactions with shareholders. These transactions include deferred tax expense
credited to equity due to the utilization of the Company's reorganization NOL
carryforwards, and the increase in equity due to the Penske Motorsports, Inc.
("PMI"), Initial Public Offering in March 1996. PMI's purchase of North Carolina
Motorspeedway ("NCMS") in May 1997. These amounts for the three and nine months
ended September 30, 1997 and 1996 are as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30 SEPTEMBER 30
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Deferred tax expense credited to equity................ $352,000 $209,000 $ 655,000 $ 508,000
Investment increase in Penske Motorsports, Inc......... --- --- 2,937,000 6,116,000
-------- -------- ---------- ----------
$352,000 $209,000 $3,592,000 $6,624,000
======== ======== ========== ==========
</TABLE>
NOTE 3. CUCAMONGA LEASE
The Company, through a wholly-owned subsidiary, Fontana Water Resources, Inc.,
leases its 50.88% ownership of the capital stock of Fontana Union, a mutual
water company, to Cucamonga County Water District ("Cucamonga") pursuant to a
take-or-pay lease (the "Cucamonga Lease") that terminates in the year 2092. The
Company continues its litigation with Cucamonga in San Bernardino County
Superior Court to resolve a dispute over the interpretation of the Cucamonga
Lease. The dispute centers upon whether or not the Lease Rate in the Cucamonga
Lease should be interpreted as the Company asserts to include all the changed
rates and items implemented by Metropolitan Water District of Southern
California ("MWD") since July 1, 1995. Cucamonga continues to pay under the
terms of the Cucamonga Lease, but at a rate substantially less than the Lease
Rate that the Company maintains it is entitled to receive pursuant to the
Cucamonga Lease. Although the Company is continuing to bill Cucamonga at what
it believes is the correct Lease Rate, the Company has elected to reserve the
full amount in dispute and report revenues on
23
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
the basis of amounts received. The total amount of lease payments in dispute as
of September 30, 1997 is approximately $1,165,000.
NOTE 4. INVESTMENT IN WEST VALLEY MRF, LLC
The Company and Burrtec Waste Industries, Inc. ("Burrtec"), a privately-held
company, completed their revised agreement for the development, construction and
operation of the West Valley MRF, a municipal solid waste transfer and recovery
facility. Effective June 19, 1997, Kaiser Recycling Corporation ("KRC") and West
Valley Recycling & Transfer, Inc. ("WVRT"), Burrtec's wholly owned subsidiary,
which are the equal members of the newly created limited liability company, West
Valley MRF, LLC, entered into a Members Operating Agreement which is
substantially the equivalent of a joint venture agreement but for a limited
liability company. The West Valley MRF is under construction and is expected to
be completed during the fourth quarter of this year.
Pursuant to the terms of the Members Operating Agreement, KRC contributed an
approximately 23 acre parcel of the Mill Site on which the West Valley MRF is
being constructed while WVRT contributed all of the goodwill of Burrtec's
recycling business presently operated out of Riverside County, thereby,
entitling West Valley MRF, LLC to receive all revenues generated from this
business after the closing date.
Most of the financing for the projected cost of the West Valley MRF
approximately $10,300,000, including reimbursement of most of the previously
incurred development costs of Burrtec and the Company, was obtained through the
issuance and sale of $9,500,000 in California Pollution Control Financing
Authority (the "Authority") Variable Rate Demand Solid Waste Disposal Revenue
Bonds (West Valley MRF, LLC Project) Series 1997A (the "Bonds"). The Bonds are
secured by an irrevocable letter of credit issued by Union Bank of California,
N.A. ("Union Bank"). The Bonds have a stated maturity date of June 1, 2012,
although West Valley MRF, LLC is required, pursuant to its agreement with Union
Bank, to annually redeem a portion of the Bonds on a stated schedule. Pursuant
to a Guaranty Agreement with Union Bank the Company and KRC are each liable for
fifty percent (50%) of the principal and interest on the Bonds in the event of a
default by the West Valley MRF, LLC.
The Company will be accounting for its investment in West Valley MRF, LLC
under the equity method.
NOTE 5. INVESTMENT IN PENSKE MOTORSPORTS, INC.
The Company currently owns 1,627,923 shares, or approximately 11.50% of the
outstanding common stock of PMI. Effective May 19, 1997, PMI issued
approximately 907,000 shares of its common stock to acquire the majority
interest in NCMS, the owner and operator of an approximately 1 mile oval track
in Rockingham, North Carolina. That transaction resulted in the dilution of the
Company's percentage of ownership in PMI from 12.29% to 11.50%. NCMS hosts two
NASCAR Winston Cup series races, two NASCAR Busch Grand National Races and the
annual Unocal 76/Rockingham Pit Crew Championship. As a result of PMI's
increased investment in NCMS, the Company recorded an increase in its equity
investment in PMI of $3,128,000 and recorded a corresponding increase in capital
in excess of par value and deferred tax liabilities of $2,937,000 and $191,000,
respectively.
24
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
NOTE 6. SALE OF MILL SITE REAL ESTATE
During the third quarter of 1997 the Company sold approximately 15.7 acres of
its Mill Site Property to McLeod Properties, Fontana LLC for $2,943,000, or
$4.30 per square foot, for use as a rail-truck intermodal distribution facility
for Budway Trucking, Inc. The transaction closed on September 30, 1997 at which
time the Company received $1,500,000 in cash and a note receivable for
$1,443,000. The Company has agreed to subordinate its note receivable to a
construction / permanent loan in order to facilitate the construction of a
building on the property. Although the Company considers the sale to have been
fully consummated during the third quarter, generally accepted accounting
principles require the gain to be deferred and recognized under the cost
recovery method, once proceeds received from the buyer exceeds the Company's
basis in the property sold.
NOTE 7. SUPPLEMENTAL CASH FLOW INFORMATION
During the nine months ended September 30, 1997 the Company issued $305,000 of
common stock for payment of 1996 bonuses and 1997 compensation.
The Company has carried back a note receivable for $1,443,000 from
McLeod Properties, Fontana LLC from the sale of 15.7 acres of Mill Site real
estate.
NOTE 8. COMMITMENTS AND CONTINGENCIES
The Company guaranteed fifty percent (50%) of the principal and interest on
$9.5 million in tax exempt variable interest rate bonds issued in connection
with the construction of the West Valley MRF.
ENVIRONMENTAL CONTINGENCIES
The Company estimates, based upon current information, that its future
remediation and other environmental costs, including groundwater and other
possible third party claims, will be between approximately $20 million and $31.5
million, depending both upon the ultimate extent of the environmental
remediation and the cleanup effort involved and which approved remediation
alternatives are eventually selected.
Although ongoing environmental investigations are being conducted on the
Company's property and the Company has recorded a $31.5 million environmental
remediation liability that it believes is a reasonable estimate of future
remediation and other environmental costs, there can be no assurance that the
actual amount of environmental remediation expenditures incurred will not
substantially exceed those currently recorded or that additional areas of
contamination may not be identified. Accordingly, future facts and
circumstances could cause these estimated liabilities to change significantly.
The Company anticipates recovery of the remediation costs incurred through
redevelopment of the property, primarily in connection with specific
redevelopment projects or joint ventures. Further, the Company has provided
certain financial assurances to the DTSC in connection with the anticipated
remediation activities, the primary one being the dedication of approximately
$4.8 million of Kaiser's Union Bank Credit facility.
25
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
Finally, as disclosed in the Company's 1996 Form 10-K Report, the City of
Ontario, California commenced litigation against the Company alleging that the
Company has contaminated one of its municipal wells. The Company believes
sufficient amounts have been accrued for this contingency.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
26
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
PART II
ITEM 1. LEGAL PROCEEDINGS
As discussed in the Company's Form 10-K Report for 1996, the Company is
engaged in certain claims and litigation, which if resolved adverse to the
Company or the Company's interests, would have a material adverse impact on the
Company. Except as note below, there were no material developments in any legal
proceeding in the third quarter of 1997.
Landfill Project Environmental Impact Report Litigation. For a more complete
discussion of the Landfill Project EIR litigation described below, please see
the "Introduction-Waste Management-Landfill Project" section of this Report.
With the approval of a new EIR for the Landfill Project by the Riverside County
Supervisors on September 9, 1997, and the return to writ filed by Riverside
County on September 19, 1997, the three original legal actions to the EIR
approved in 1992 were effectively reactivated. On October 21, 1997, all the
parties to the original litigation, except for Eagle Crest Energy Company, filed
objections to the County's assertion that the new EIR remedied the deficiencies
previously found to have existed in the 1992 EIR. On October 30, 1997, the San
Diego Superior Court discharged the writ with respect to Eagle Crest Energy
Company. A hearing on the return writ is currently scheduled on December 31,
1997.
In connection with the new EIR for the Landfill Project, a new lawsuit was
filed in Riverside County Superior Court on October 10, 1997 by Center For
Community Action and Environmental Justice, Eagle Mountain Landfill Opposition
Coalition, National Parks and Conservation Association, Laurence and Donna J.
Charpied, Richard M. Marsh and Daniel S. Roman (Petitioners and Plaintiffs)
against County of Riverside, The Board of Supervisors of the County of Riverside
and the Individual Members Thereof (Respondents and Defendants), Kaiser Steel
Resources, Inc.(now known as Kaiser Ventures Inc.), Mine Reclamation Corporation
and Kaiser Eagle Mountain, Inc. (Real Parties In Interest and Defendants (Case
No. 663033).
MRC and the Company believe they have defenses with respect to the EIR
litigation and are vigorously defending such litigation.
Centennial Insurance Company. On November 5, 1997, the Company was served
with a complaint brought by Centennial Insurance Company in San Bernardino
County Superior Court seeking approximately $115,000 in damages from the Company
and other defendants related to the alleged theft of property from the Company's
Mill Site Property (Centennial Insurance Company, Plaintiff v. Kaiser Resources
Inc., et.al., San Bernardino County Superior Court - Rancho Cucamonga Division,
Case No. RCV 30545). Because this lawsuit was just initiated, the Company has
not had the opportunity to fully investigate the merits of the lawsuit.
However, based upon a preliminary investigation, the Company believes the
lawsuit is without merit and will vigorously defend against it.
Apollo Wood Recovery, Inc. On November 11, 1997, the Company and two
individual officers of the Company were served with a complaint brought by
Apollo Wood Recovery, Inc. in San Bernadino Superior Court seeking unspecified
damages, but which are estimated to exceed $100,000. The plaintiff is a tenant
on the Company's Mill Site Property. In summary the complaint alleges that the
Company, Lee Redmond and Terry L. Cook, officers of the Company, falsely
represented the status of the permitting of the property on which Plaintiff
operates its business, committed fraud, interfered with the plaintiff's
27
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
business, engaged in unfair trade practices and other similar causes of action.
The Company believes the lawsuit is without merit and will vigorously defend
against such lawsuit. (Apollo Wood Recovery, Inc. v. Kaiser Ventures Inc., Terry
L. Cook, Lee Redmond, Apollo Wood & Metal Recycling Ltd., Shirley Isom
Construction Company, Troy Isom and Does 1 through 40, San Bernardino Superior
Court, Case No. SCN 42863.)
ITEM 2. CHANGES IN SECURITIES
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
Not applicable.
ITEM 4. SUBMISSION OF MATTERS TO VOTE OF SECURITY HOLDERS
None.
ITEM 5. OTHER INFORMATION
See the "Introduction" Section of this Form 10-Q Report.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
A. Exhibits
--------
The following exhibits are filed as a part of this Report:
28
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
Exhibit 10.1 Indemnification Agreement dated September 9, 1997 among
Riverside County, Mine Reclamation Corporation, Kaiser Eagle
Mountain, Inc. Eagle Mountain Reclamation, Inc. and Kaiser
Ventures Inc.
Exhibit 10.2 Development Agreement to be executed upon consummation of
federal land exchange among Riverside County, Mine Reclamation
Corporation, Kaiser Eagle Mountain, Inc. Eagle Mountain
Reclamation, Inc. and Kaiser Ventures Inc.
Exhibit 10.3 Promissory Note of McLeod Properties, Fontana LLC, dated
September 30, 1997 payable to the order of Kaiser Ventures Inc.
Exhibit 10.3.1 Guaranty Agreement of Budway Enterprises, Inc. and V.M. McLeod
dated September 30, 1997.
Exhibit 10.3.2 Subordinated Deed of Trust, Assignment of Leases and Rents and
Security Agreement dated September 30, 1997 given by McLeod
Properties, Fontana LLC for the benefit of the Kaiser Ventures
Inc.
Exhibit 27 Financial Data Schedule for second quarter 10-Q.
B. Reports on Form 8-K.
--------------------
A Form 8-K report dated October 20, 1997 was filed on October
29, 1997, regarding the filing of an amended Schedule 13D by the New Kaiser
Voluntary Employees' Beneficiary Association ("VEBA") and the filing of an
amended Schedule 13D by Pacholder Associates, Inc. and reporting that the
investment advisors of VEBA and the Pension Benefit Guaranty Corporation entered
into a Cooperation Agreement. The 8-K Report was filed as an Item 1 matter.
29
<PAGE>
KAISER VENTURES INC. AND SUBSIDIARIES
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned thereunto duly authorized.
KAISER VENTURES INC.
Dated: November 13, 1997 /s/ James F. Verhey
-------------------
James F. Verhey
Principal Financial Officer
30
<PAGE>
AGREEMENT
=========
This AGREEMENT, made and entered into this 9th day September of 1997,
by and between COUNTY OF RIVERSIDE, a political subdivision of the State of
California (hereinafter referred to as "COUNTY"), and MINE RECLAMATION
CORPORATION, KAISER EAGLE MOUNTAIN, INC., EAGLE MOUNTAIN RECLAMATION, INC. and
KAISER VENTURES INC. (hereinafter collectively referred to herein as
"APPLICANT");
WITNESSETH:
-----------
WHEREAS, in recognition and consideration of the COUNTY's approval of
the Eagle Mountain Landfill & Recycling Project and related environmental impact
report prepared in accordance with the California Environmental Quality Act (the
"PROJECT"), the APPLICANT desires to indemnify the COUNTY from liability or loss
connected with the Project approvals as provided herein;
NOW, THEREFORE, it is mutually agreed between COUNTY and APPLICANT as
follows:
1. INDEMNIFICATION. The APPLICANT shall defend, indemnify and hold
harmless the COUNTY and its agents, officers and employees from any claim,
action, or proceeding brought or asserted by a third person or entity against
the COUNTY or its agents, officers or employees to attack, set aside, void, or
annul the Project or any prior or subsequent development approvals, or any other
action by the COUNTY in connection with the Project, or Project conditions
imposed by the COUNTY or any of its agencies, departments, commissions, agents,
officers or employees concerning the said Project, or to impose personal
liability against such agents, officers or employees resulting from their
involvement in the Project, which claim, action, or proceeding is brought within
the time period provided by law, including any claim for private attorney
general fees claimed by or awarded to any party from COUNTY to the extent that
such claim, action or proceeding does not arise from the COUNTY's default under
Development No. 64 or the COUNTY's violation of applicable law. To the extent
that COUNTY uses any of its resources responding to such claim, action, or
proceeding, APPLICANT will reimburse COUNTY within thirty (30) days of the
submission of an itemized statement for these resources. Such resources
include, but are not limited to the reasonable expenses and charges related to
staff time, court costs, County Counsel's time at their regular rate for
external or non-County agencies, or any other reasonable direct or indirect
costs associated with responding to the claim, , action or proceeding.
2. BINDING EFFECT. The APPLICANT'S obligations under this Agreement
shall apply regardless of whether any other permits or entitlements are issued.
These obligations shall be binding on successors and assigns of the real
property benefited by approval of the Project, and APPLICANT shall so obligate
all transferees and assigns.
3. DEFENSE AND INDEMNITY PROCEDURES. The COUNTY will promptly
notify APPLICANT in writing of any such claim, action, or proceeding. If the
COUNTY fails to
1
<PAGE>
cooperate in the defense as required by Section 4, below, then, the APPLICANT
shall not thereafter be responsible to defend, indemnify and hold harmless the
COUNTY or its agents, officers and employees pursuant to this Agreement. After
receipt from the County of notice of any claim, or the commencement of any
action or proceeding with respect to which indemnification is being sought under
this Agreement by County. Applicant will assume the defense of such claim,
action or proceeding, including the employment of counsel reasonably
satisfactory to the County and Applicant and the prompt payment of the fees and
disbursements of such counsel. In the event, however, the County reasonably
determines that having common counsel would present such counsel with a conflict
of interest, or if Applicant fails to assume the defense of the claim, action or
proceeding or to employ counsel reasonably satisfactory to the County, in either
case in a timely manner, then the County may employ separate counsel to
represent or defend it in any such claim, action or proceeding and Applicant
will promptly pay the fees and disbursements of such counsel.
4. DEFENSE PARTICIPATION. The COUNTY shall, within its unlimited
discretion in good faith, participate and cooperate in the defense of any such
claim, action, or proceeding.
5. NO SETTLEMENT WITHOUT APPROVAL OF APPLICANT. The APPLICANT shall
not be required to pay or perform any settlement of such claim, action or
proceeding unless the settlement is approved in writing by APPLICANT.
6. SECURITY FOR PERFORMANCE OF OBLIGATIONS. Performance of
Applicant's obligations pursuant to the Agreement shall be secured by a letter
of credit provided to the County substantially in the form attached as Exhibit
"J" to Development Agreement No. 64. The letter of credit furnished to COUNTY
may be the same letter of credit referred to in Section 9.9.1 of Development
Agreement No. 64 between COUNTY and APPLICANT. It is not the intent of the
parties that the Applicant furnish two separate letter of credit. If the County
believes that Applicant has not fulfilled its obligations as provided herein,
the County shall have the right to draw upon the letter of credit in an amount
necessary to satisfy the obligations Applicant has not timely performed upon
thirty (30) days advanced written notice to Applicant.
7. NOTICES. All notices to APPLICANT under this Agreement shall be
deemed valid and effective five (5) calendar days following deposit in the
United States mail, postage, prepaid, by certified and/or registered mail,
addressed to: Mine Reclamation Corporation, 43-645 Monterey Avenue, Suite A,
--------------------------------------------------------------
Palm Desert, California 92260, attention Richard A. Daniels, with a copy to
- ----------------------------------------------------------------------------
Kaiser Ventures Inc., 3633 E. Inland Empire Boulevard, Suite 850, Ontario,
- --------------------------------------------------------------------------
California 91764, attention Terry L. Cook.
- -------------------------------------------
All notices to COUNTY under this Agreement shall be deemed valid and
effective when personally served upon County Executive Officer or upon deposit
in the United States mail, postage prepaid, by certified and/or registered mail,
addressed to the County Executive Officer, 4080 Lemon Street, 12th Fl.,
riverside, CA. 92501-3651 with a copy to County Counsel, 3535 Tenth Street,
Suite 300, Riverside, CA. 92501.
8. COMPLETE AGREEMENT/GOVERNING LAW. This Agreement and the similar
provision in Development Agreement No. 64 represents the complete understanding
2
<PAGE>
between the parties with respect to matters set forth herein. This Agreement
shall be construed in accordance with the laws of the State of California.
9. TERMINATION. This Agreement shall terminate at start up of
operations as that term is defined in Development Agreement No. 64 between the
County and Applicant.
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement
be executed by their authorized representatives on the date hereinabove first
written.
"COUNTY"
"COUNTY OF RIVERSIDE"
By: /s/ Robert A. Buster
------------------------------------
Name
Chairman of the Board of Supervisors
------------------------------------
Title
APPROVED AS TO FORM:
OFFICE OF COUNTY COUNSEL
By: /s/ Jay Vickers
------------------------------------
Deputy
"APPLICANT"
MINE RECLAMATION CORPORATION
By: /s/ Gary W. Johnson
------------------------------------
Name
Vice President
------------------------------------
Title
KAISER EAGLE MOUNTAIN, INC.
By: /s/ Gerald A. Fawcett
------------------------------------
Name
President
------------------------------------
Title
EAGLE MOUNTAIN RECLAMATION, INC.
By: /s/ Gerald A. Fawcett
------------------------------------
Name
President
------------------------------------
Title
3
<PAGE>
KAISER VENTURES INC.
By: /s/ Gerald A. Fawcett
----------------------------------
Name
President & Chief Operating Officer
----------------------------------
Title
4
<PAGE>
Recorded at the request of:Recorded at the request of:
Clerk of the Board of Supervisors
County of Riverside
When recorded return to:
Clerk of the Board of Supervisors
4080 Lemon Street, 14/th/ Floor
Riverside, CA 92501
DEVELOPMENT AGREEMENT NO 64
A development agreement between
COUNTY OF RIVERSIDE
and
MINE RECLAMATION CORPORATION
and others
Specific Plan Nos. 305 - EAGLE MOUNTAIN
FINAL - BUT NOT EFFECTIVE UNTIL A LATER DATE
NO SIGNATURES HAVE BEEN OBTAINED
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
RECITALS.................................................................... 1
- --------
COVENANTS................................................................... 2
- ---------
1. DEFINITIONS AND EXHIBITS............................................... 2
------------------------
1.1 Definitions....................................................... 2
-----------
1.2 Exhibits.......................................................... 7
--------
2. GENERAL PROVISIONS..................................................... 8
------------------
2.1 Binding Effect of Agreement...................................... 8
---------------------------
2.2 Ownership of Property............................................ 8
---------------------
2.3 Term............................................................. 8
----
2.3.1 Development Agreement.................................... 8
---------------------
2.3.2 Specific Plan No. 305, Site Specific
------------------------------------
Plot Plans and Plot Plans................................ 12
-------------------------
2.4 Assignment....................................................... 12
----------
2.4.1 Right to Assign.......................................... 12
---------------
2.4.2 Release of Transferring Owner............................ 13
-----------------------------
2.4.3 Subsequent Assignment.................................... 14
---------------------
2.4.4 Partial Release of Purchaser, Transferee
----------------------------------------
or Assignee of Industrial or Commercial
---------------------------------------
Lot...................................................... 14
---
2.5 Amendment or Cancellation of Agreement........................... 14
--------------------------------------
2.6 Termination...................................................... 14
-----------
2.7 Disposal of Solid Waste.......................................... 15
-----------------------
2.8 Restriction on Importation....................................... 15
--------------------------
2.9 Notices.......................................................... 16
-------
3. DEVELOPMENT OF THE PROPERTY............................................ 18
---------------------------
3.1 Rights to Develop................................................ 18
-----------------
3.2 Effect of Agreement on Land Use Regulations...................... 18
-------------------------------------------
3.3 Timing of Development............................................ 19
---------------------
3.4 Changes and Amendments........................................... 19
----------------------
3.5 Site Specific Plot Plan(s)....................................... 20
--------------------------
3.6 Plot Plan(s)..................................................... 20
------------
3.7 Application Fees................................................. 20
----------------
3.8 Reservations of Authority........................................ 21
-------------------------
3.8.1 Limitations, Reservations and
-----------------------------
Exceptions............................................... 21
----------
3.8.2 Modification or Suspension by State or
--------------------------------------
Federal Law.............................................. 22
-----------
3.8.3 Intent................................................... 22
------
3.9 Public Works..................................................... 22
------------
3.10 Access and Rights of Way......................................... 23
------------------------
3.11 Regulation by other Public Agencies.............................. 23
-----------------------------------
3.12 Local Enforcement Agency Authority............................... 24
----------------------------------
3.13 Vesting Tentative Maps........................................... 26
----------------------
3.14 Staged Tonnage Increase.......................................... 27
-----------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
4. ECONOMIC BENEFITS...................................................... 30
-----------------
4.1 Intent........................................................... 30
------
4.2 Conveyance of Capacity of the Project............................ 30
-------------------------------------
4.3 Purchase of County Interest...................................... 30
---------------------------
4.4 Conveyance Documentation......................................... 31
------------------------
4.5 Default of Purchase and Sale Agreement........................... 31
--------------------------------------
4.6 Capacity Rights.................................................. 31
---------------
4.7 Additional Payments by OWNER..................................... 32
----------------------------
4.7.1 State and Federal Trust/Insurance
---------------------------------
Programs................................................. 32
--------
4.7.2 Insurance................................................ 32
---------
4.7.3 Park, Open Space, Habitat Mitigation,
-------------------------------------
Environmental Monitoring and Research.................... 32
-------------------------------------
4.7.4 Environmental Mitigation Trust........................... 33
------------------------------
4.7.5 Rail Safety Improvement Trust Fund....................... 33
----------------------------------
4.7.6 Air Emissions Offset Trust Fund.......................... 35
-------------------------------
4.7.7 Host Community Funding................................... 35
----------------------
4.7.8 UCR Endowment............................................ 36
-------------
4.7.9 Waiver of Credit for Consultant Services
----------------------------------------
Paid by MRC.............................................. 37
-----------
4.7.10 Entire Economic Benefits................................. 38
------------------------
5. FINANCING OF PUBLIC IMPROVEMENTS....................................... 39
--------------------------------
6. REVIEW FOR COMPLIANCE.................................................. 39
---------------------
6.1 Periodic Review.................................................. 39
---------------
6.2 Special Review................................................... 39
--------------
6.3 Procedure........................................................ 39
---------
6.4 Proceedings Upon Modification or Termination..................... 40
--------------------------------------------
6.5 Failure to Make Payment.......................................... 41
-----------------------
6.6 Hearing.......................................................... 41
-------
6.7 Certificate of Agreement Compliance.............................. 42
-----------------------------------
7. INCORPORATION AND ANNEXATION........................................... 42
----------------------------
7.1 Intent........................................................... 42
------
7.2 Incorporation.................................................... 42
-------------
7.3 Incorporation and Annexation..................................... 42
----------------------------
8. DEFAULT AND REMEDIES................................................... 43
--------------------
8.1. Remedies in General.............................................. 43
-------------------
8.2 Specific Performance............................................. 43
--------------------
8.3 Release.......................................................... 43
-------
8.4 Termination or Modification of Agreement for
--------------------------------------------
Default of OWNER................................................. 44
----------------
8.5 Termination of Agreement for Default of COUNTY................... 44
----------------------------------------------
9. THIRD PARTY LITIGATION, ENVIRONMENTAL IMPAIRMENT,
-------------------------------------------------
INDEMNITY AND FINANCIAL ASSURANCES..................................... 44
----------------------------------
9.1 General Plan Litigation.......................................... 44
-----------------------
9.2 Third Party Litigation........................................... 45
----------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
9.3 OWNER Indemnity................................................... 46
---------------
9.4 COUNTY Indemnity.................................................. 46
----------------
9.5 Additional OWNER Indemnity........................................ 47
--------------------------
9.6 Reservation of Rights............................................. 47
---------------------
9.7 Environmental Impairment and Damage to Natural
----------------------------------------------
Resources......................................................... 48
---------
9.8 Emergencies....................................................... 48
-----------
9.9 Financial Assurances.............................................. 49
--------------------
9.9.1 Letter of Credit........................................... 49
----------------
9.9.3 Comprehensive General Liability Insurance.................. 53
-------------------------------------------
9.9.4 Corporate Guarantee........................................ 54
-------------------
9.9.5 Financial Assurances Fund.................................. 56
-------------------------
9.9.6 Priority of Use of Financial Assurances.................... 58
---------------------------------------
9.9.7 Alternative or Substitute Financial
-----------------------------------
Assurances................................................. 59
----------
9.9.8 Wrongful or Improper Claim or Draw by
-------------------------------------
COUNTY..................................................... 60
------
9.10 Source Communities Indemnity Provisions........................... 60
---------------------------------------
9.11 Unforeseen Circumstances.......................................... 60
------------------------
9.12 Survival.......................................................... 61
--------
10. MORTGAGEE PROTECTION................................................... 62
--------------------
11. MISCELLANEOUS PROVISIONS............................................... 63
------------------------
11.1 Recordation of Agreement.......................................... 63
------------------------
11.2 Entire Agreement.................................................. 64
----------------
11.3 Severability...................................................... 64
------------
11.4 Interpretation and Governing Law.................................. 64
--------------------------------
11.5 Section Headings.................................................. 64
----------------
11.6 Singular and Plural............................................... 64
-------------------
11.7 Joint and Several Obligations..................................... 65
-----------------------------
11.8 Time of Essence................................................... 65
---------------
11.9 Waiver............................................................ 65
------
11.10 No Third Party Beneficiaries..................................... 65
----------------------------
11.11 Force Majeure.................................................... 65
-------------
11.12 Mutual Covenants................................................. 65
11.13 Successors in Interest.......................................... 65
-----------------------
11.14 Counterparts..................................................... 66
------------
11.15 Project as a Private Undertaking................................. 66
--------------------------------
11.16 Further Actions and Instruments.................................. 66
-------------------------------
11.17 Jurisdiction, Venue and Attorneys' Fees.......................... 66
---------------------------------------
11.18 Eminent Domain................................................... 67
--------------
11.19 County's Reserve for Unfunded County Liabilities
------------------------------------------------
on Other Landfills............................................... 67
------------------
11.20 Authority to Execute............................................. 67
--------------------
</TABLE>
DEVELOPMENT AGREEMENT NO. 64
----------------------------
This Development Agreement (hereinafter "AGREEMENT") is
<PAGE>
entered into effective on the Effective Date, as defined herein, by and between
the COUNTY OF RIVERSIDE (hereinafter "COUNTY"), MINE RECLAMATION CORPORATION, a
California corporation, KAISER EAGLE MOUNTAIN, INC., a Delaware corporation,
EAGLE MOUNTAIN RECLAMATION, INC., a Delaware corporation, and KAISER VENTURES
INC., a Delaware corporation (hereinafter collectively "OWNER").
RECITALS
--------
WHEREAS, the COUNTY is authorized to enter into binding development
agreements with persons having legal or equitable interests in real property for
the development of such property, pursuant to Section 65864, et seq. of the
-------
Government Code; and,
WHEREAS, the COUNTY has adopted rules and regulations for consideration of
development agreements, pursuant to Section 65865 of the Government Code; and,
WHEREAS, OWNER and COUNTY have determined that a development agreement is
the most appropriate means of meeting the needs of the parties and proceedings
have been taken in accordance with the rules and regulations of COUNTY; and,
WHEREAS, by electing to enter into this Agreement, COUNTY shall bind future
Boards of Supervisors of COUNTY by the obligations specified herein and limit
the future exercise of certain governmental and proprietary powers of COUNTY;
and,
WHEREAS, the terms and conditions of this Agreement have undergone
extensive negotiation and review by COUNTY and the Board of Supervisors and have
been found to be fair, just and reasonable; and,
WHEREAS, the best interests of the citizens of Riverside County and the
public health, safety and welfare will be served by entering into this
Agreement; and,
WHEREAS, the COUNTY has caused to be prepared an environmental impact
report in accordance with all of the procedures of the California Environmental
Quality Act [CEQA] with respect to the Project, Development Plan and the
Agreement; and,
WHEREAS, this Agreement and the Project are consistent with the Riverside
County Comprehensive General Plan and any Specific Plan applicable thereto; and,
09/04/97
5
<PAGE>
WHEREAS, all actions taken and approvals given by COUNTY have been duly
taken or approved in accordance with all applicable legal requirements for
notice, public hearings, findings, votes, and other procedural matters; and,
WHEREAS, the COUNTY has determined that there is a current and future need
for environmentally safe landfill space; and,
WHEREAS, development of the Property in accordance with this Agreement will
provide substantial benefits to COUNTY and will further important policies and
goals of COUNTY; and,
WHEREAS, this Agreement will eliminate uncertainty in planning and provide
for the orderly development of the Property, ensure progressive installation of
necessary improvements, provide for public services appropriate to the
development of the Project, assure vesting of legal rights to develop the
Property in accordance with this Agreement, and generally serve the purposes for
which development agreements under Sections 65864, et seq. of the Government
------
Code are intended; and,
WHEREAS, OWNER has incurred and will in the future incur substantial costs
in order to assure development of the Property in reliance upon and in
accordance with this Agreement; and,
WHEREAS, prior to the Effective Date of this Agreement, COUNTY has approved
a Specific Plan for the Property and its related Project;
COVENANTS
---------
NOW, THEREFORE, in consideration of the above recitals and of the mutual
covenants hereinafter contained and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. DEFINITIONS AND EXHIBITS.
------------------------
1.1 Definitions. The following terms when used in this Agreement and
-----------
Exhibits attached hereto or referred to herein shall be defined as follows:
1.1.1 "AGREEMENT" means this Development Agreement.
1.1.2 "COUNTY" means the County of Riverside, a political
subdivision of the State of California.
1.1.3 "COUNTY WASTE" means municipal solid waste
09/04/97
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<PAGE>
which was first collected for disposal, or was generated inside, the geographic
boundaries of Riverside County as set forth in Government Code Section 23133 and
including both incorporated and unincorporated territory within those
boundaries.
1.1.4 "DEVELOPMENT" means the improvement of the Property for the
purposes of completing the structures, improvements and facilities comprising
the Development Plan including, but not limited to: grading; the construction of
infrastructure and public facilities related to the Development Plan whether
located within or outside the Property; the construction of buildings and
structures; and the installation of landscaping as required. "Development" does
not include the maintenance, repair, reconstruction or redevelopment of any
building, structure, improvement or facility after the construction and
completion thereof.
1.1.5 "DEVELOPMENT APPROVALS" means all permits and other
entitlements for use subject to approval or issuance by COUNTY in connection
with development of the Property including, but not limited to:
(a) General plan amendment;
(b) Specific plans and specific plan amendments;
(c) Tentative and final subdivision and parcel maps;
(d) Conditional use permits, public use permits and site and
plot plans;
(e) Zoning changes;
(f) Grading and building permits;
(g) Landfill facility permits;
(h) Encroachment permits;
(i) Mine reclamation plan revisions;
(j) All such other and further COUNTY imposed discretionary
permits, approvals or authorizations other than any
ministerial permits or plans.
1.1.6 "DEVELOPMENT EXACTION" means any requirement of
09/04/97
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<PAGE>
COUNTY in connection with or pursuant to any Land Use Regulation or Development
Approval for the dedication of land, the construction of improvements or public
facilities, or the payment of fees in order to lessen, offset, mitigate or
compensate for the impacts of development on the environment or other public
interests.
1.1.7 "DEVELOPMENT PLAN" means the Existing Development Approvals
for the Landfill to be developed and utilized on Property as contemplated by the
Specific Plan No. 305 and the Specific Plan Zoning Ordinance for Specific Plan
No. 305 and the Existing Land Use Regulations applicable to development of the
Property. The "Development Plan" may be further defined, enhanced or modified
pursuant to the provisions of this Agreement. "Development Plan" also means the
development of the structures, improvements and facilities on the Property which
are complementary and necessary for the Start Up of Operations for which
approvals have been granted or may be granted in the future.
1.1.8 "EFFECTIVE DATE" means the date this Agreement is recorded
with the County Recorder; provided, however, that in no event shall this
Agreement become effective, even if recorded, until and unless Kaiser Eagle
Mountain, Inc., a wholly-owned subsidiary of Kaiser Ventures Inc., a Delaware
corporation, has acquired the fee interest in the property which is currently
owned by the United States of America and administered by the Bureau of Land
Management ("BLM"), as more particularly described in the Environmental Impact
Statement prepared by the BLM in conjunction with the Project, and the Lease
described in Section 2.2 hereof includes the Property.
1.1.9 "EXISTING DEVELOPMENT APPROVALS" means all COUNTY
Development Approvals approved or issued prior to the Effective Date and all
discretionary and administrative COUNTY approvals required to permit Start Up of
Operations of the Landfill. Existing Development Approvals includes the
Approvals incorporated herein as Exhibit "C" and all other Approvals which are a
matter of public record on the Effective Date.
1.1.10 "EXISTING LAND USE REGULATIONS" for the Landfill and the
Project as defined in (S)1.1.17(a)-(h) hereof shall mean all Land Use
Regulations in effect on the Effective Date. For the purpose of any other uses
of the Property, including, but not limited to those identified in (S)1.1.17(i)-
(v) hereof, "Existing Land Use Regulations" shall mean all Land Use Regulations
in effect on the date the application for such use is submitted to the COUNTY
and deemed complete. Existing Land Use Regulations includes the Regulations
incorporated herein as Exhibit "D" and all other regulations which are a matter
of public record.
09/04/97
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<PAGE>
1.1.11 "LANDFILL" means a Class III Nonhazardous solid waste
disposal, storage and management facility located at the Property.
1.1.12 "LAND USE REGULATIONS" means all ordinances, resolutions,
codes, rules, regulations and official policies of COUNTY governing the
development and use of land, including, without limitation, the permitted use of
land, the density or intensity of use, subdivision requirements, the maximum
height and size of proposed buildings, the provisions for reservation or
dedication of land for public purposes, and the design, improvement and
construction standards and specifications applicable to the development of the
Property. "Land Use Regulations" does not include any COUNTY ordinance,
resolution, code, rule, regulation or official policy, governing:
(a) The conduct of businesses, professions, and occupations;
(b) Taxes and assessments;
(c) The control and abatement of nuisances;
(d) The granting of encroachment permits and the conveyance of
rights and interests which provide for the use of or the
entry upon public property;
(e) The exercise of the power of eminent domain.
1.1.13 "MORTGAGEE" means a mortgagee under a mortgage, a
beneficiary under a deed of trust or any other security-device lender, and their
successors and assigns.
1.1.14 "NON-COUNTY WASTE" means municipal solid waste which is not
County Waste.
1.1.15 "NONHAZARDOUS SOLID WASTE" means all waste defined in Title
23 California Code of Regulations Section 2523 as it now exists or may be
amended, provided, however, that the following are not and shall not in the
future, either by amendment to Section 2523 or otherwise, be classified as
Nonhazardous solid waste: incineration ash, putrescrible and nonputrescrible
liquid waste, abandoned vehicles and parts thereof and sewage or water treatment
sludge, even if they have been dewatered.
1.1.16 "OWNER" means (i) Mine Reclamation Corporation,
09/04/97
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<PAGE>
a California corporation (the lessee of the Property), and its successors in
interest to all or any part of the Property, (ii) Kaiser Eagle Mountain, Inc., a
Delaware corporation (the owner of the Property), and its successors in interest
to all or any part of the Property, (iii) Eagle Mountain Reclamation, Inc., a
Delaware corporation (the current majority shareholder of Mine Reclamation
Corporation), and its successors in interest, and (iv) Kaiser Ventures Inc., a
Delaware corporation (the parent of Kaiser Eagle Mountain, Inc. and Eagle
Mountain Reclamation, Inc.), and its successors in interest. The obligations of
OWNER hereunder shall be performed by any one or more of the above described
entities.
1.1.17 "PROJECT" means the Landfill and complementary improvements
and facilities to be developed as contemplated by the Development Plan and for
which approvals have been or will be granted in order to achieve Start Up of
Operations. "Project" also means the development of facilities as contemplated
by the Specific Plan No. 305 and its zoning ordinance, for which approvals may
be applied for and granted in the future, subject to the applicable
environmental reviews. "Project" includes, but is not limited to, the
following:
(a) on-site, above-ground drop-off, storage, sorting and
processing facilities for recyclable materials;
(b) temporary storage of household hazardous waste;
(c) Methane or similar power-generating and landfill gas energy
recovery facilities;
(d) Administration, repair, maintenance and fueling facilities;
(e) Truck marshaling yards;
(f) Rail yards for loading and unloading waste containers;
(g) Environmental monitoring facilities;
(h) Such other compatible and ancillary uses necessary or
convenient to the operation of any of the above-mentioned
uses.
"Project" may include, subject to further environmental review, and
appropriate amendments to, Specific Plan No. 305 and/or
09/04/97
10
<PAGE>
its zoning ordinance, if necessary, the following:
(i) Sales facilities for recycled materials and fabricated
products;
(ii) Fabricating plants or facilities;
(iii) Mining facilities and operations;
(iv) Composting or co-composting of solid waste; and,
(v) Recycling facilities.
1.1.18 "PROPERTY" means the real property described on Exhibit "A"
and shown on Exhibit "B" to this Agreement.
1.1.19 "RESERVATIONS OF AUTHORITY" means the rights and authority
excepted from the assurances and rights provided to OWNER under this Agreement
and reserved to COUNTY under Section 3.8 of this Agreement.
1.1.20 "START UP OF OPERATIONS" means the first day that
Nonhazardous solid waste is disposed at the Property.
1.1.21 "SUBSEQUENT DEVELOPMENT APPROVALS" means all Development
Approvals applied for subsequent to the Effective Date of this Agreement.
"Subsequent Development Approvals" shall not include any continuation of the
term of this Agreement pursuant to Section 2.3.1, any Site Specific Plot Plans
as described in Section 3.5, or the staged tonnage provisions as described in
Section 3.14.
1.1.22 "SUBSEQUENT LAND USE REGULATIONS" means any Land Use
Regulations adopted and effective after the Effective Date of this Agreement.
1.1.23 "MRC" means Mine Reclamation Corporation, a California
corporation.
1.1.24 "LESSOR" means Kaiser Eagle Mountain, Inc., a Delaware
corporation.
1.2 Exhibits. The following documents are attached to, and by this
---------
reference made a part of, this Agreement:
Exhibit "A" -- Legal Description of the Property.
Exhibit "B" -- Map showing Property and its location.
09/04/97
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<PAGE>
Exhibit "C" -- Existing Development Approvals.
Exhibit "D" -- Existing Land Use Regulations.
Exhibit "E" -- Assignment of Leasehold Interest.
Exhibit "F" -- Purchase and Sale Agreement.
Exhibit "G" -- Assignment of County Interest.
Exhibit "H" -- Environmental Mitigation Trust.
Exhibit "I" -- Certificate of Agreement Compliance.
Exhibit "J" -- Letter of Credit.
Exhibit "K" -- Guarantee Agreement.
2. GENERAL PROVISIONS.
-------------------
2.1 Binding Effect of Agreement. The Property is hereby made subject to
----------------------------
this Agreement. Development of the Property is hereby authorized and shall be
carried out only in accordance with the terms of this Agreement and all
documents incorporated herein.
2.2 Ownership of Property. MRC represents and covenants that it is the
----------------------
lessee pursuant to that certain lease between Kaiser Eagle Mountain, Inc.
(Lessor) and MRC dated November 30, 1988, as amended (the "LEASE"), under which
MRC holds a one hundred (100) year leasehold interest in the Property. Kaiser
Eagle Mountain, Inc., represents that on the Effective Date it is the fee owner
of the Property.
2.3 Term.
-----
2.3.1 Development Agreement. COUNTY has determined that the
----------------------
Environmental Impact Statement/Environmental Impact Report ("EIS/EIR") for the
Project adequately analyzes the environmental impacts of the disposal of up to
20,000 tons per day of Non-hazardous municipal solid waste at the Landfill for a
period of over 100 years. COUNTY has approved a maximum of 20,000 tons per day,
and the parties have agreed to stage the average daily volume of disposal of
Non-County Waste as set forth in Section 3.14 below.
The County has further approved the term of this Agreement for the
period beginning on the Effective Date and continuing until November 30, 2088,
and the parties have agreed to
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stage the term. Specifically, the parties have agreed to an initial term of
fifty (50) years from the Effective Date, although there will be additional
Landfill capacity available at the expiration of the initial term of this
Agreement. Accordingly, at any time or times after thirty (30) years from the
Effective Date of this Agreement (and no earlier), and in accordance with the
requirements of this Section 2.3.1, OWNER shall have the option(s) to continue
the term of this Agreement for a period up to the then-expected remaining life
of the Landfill's capacity as set forth in Specific Plan No. 305 (including any
amendments thereto)("SPECIFIC PLAN"); provided, however, in no event shall the
term of this "Agreement be extended under this Section 2.3.1 beyond November 30,
2088.
If at any time or times after the thirtieth anniversary date of this
Agreement OWNER desires to continue the term of this Agreement beyond the fifty
(50)-year initial term, OWNER shall so notify the COUNTY's Chief Executive
Officer, in writing by certified mail, return receipt requested ("OWNER'S
CONTINUATION NOTICE"). The COUNTY's Chief Executive Officer shall cause OWNER's
Continuation Notice to be delivered to, and reviewed by, an independent panel of
five scientists and engineers who shall be selected by the Dean/Chairman of
Bourns College of Engineering Center for Environmental Research and Technology,
University of California at Riverside (UCR CE-CERT)(or other designee of the
Chancellor of UCR if CE-CERT is no longer part of UCR), with the concurrence of
OWNER. If OWNER and the Dean/Chairman of UCR CE-CERT are unable to agree upon
the selections to such panel within forty-five (45) days of the date of OWNER's
Continuation Notice, then the panel shall be selected as follows within thirty
(30) days thereafter: two (2) members shall be selected by the Dean/Chairman of
UCR CE-CERT (or other designee of the Chancellor of UCR if CE-CERT is no longer
part of UCR); two (2) members shall be selected by OWNER from a list of ten
qualified scientists and engineers provided to OWNER by the Dean/Chairman of UCR
CE-CERT (or other designee of the Chancellor of UCR if CE-CERT is no longer part
of UCR); and the fifth member shall be selected by the other four members.
If the Dean/Chairman of UCR CE-CERT (or other designee of the
Chancellor of UCR if CE-CERT is no longer part of UCR) is unable or unwilling to
perform in accordance with the foregoing paragraph, or if the Citizens Oversight
Committee established in the conditions of approval for the Specific Plan
determines that UCR or UCR CE-CERT has a conflict of interest arising from the
UCR Endowment (See Section 4.7.8), then, within forty-five (45) days of the date
of OWNER's Continuation Notice, the COUNTY's Chief Executive Officer shall
designate and cause a Chancellor/Dean from
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another university within the State of California to work with OWNER to make
such selections (or, in the event OWNER and such designee cannot agree, then to
make two selections each, pursuant to and within the time periods specified in
the foregoing paragraph).
The panel shall limit its review to confirming that OWNER has
substantially complied with all Existing Development Approvals, Subsequent
Development Approvals and regulatory permits related to the construction and
operation of the Landfill and confirming that the potential environmental
impacts of the Project would remain as identified in the EIS/EIR. Any action or
concurrence of a majority of the members of the panel shall be deemed to be the
action of the panel for purposes of this Agreement.
The panel shall conduct and complete its review within eight (8)
months of the date of OWNER's Continuation Notice, and shall consider the
EIS/EIR, the Existing and any Subsequent Development Approval documents and such
existing site-specific data and evidence as may be presented by OWNER and
appropriate regulatory agencies responsible for the issuance and enforcement of
regulatory permits for the Landfill.
a. If the panel confirms, based upon substantial evidence in the
record before it, that OWNER has substantially complied with
such approvals and permits and that the potential environmental
impacts of the Project would remain as identified in the EIS/EIR,
then this Agreement shall automatically be continued for the
period delineated in OWNER's Continuation Notice, which shall not
exceed the then-expected remaining life of the Landfill's
capacity as set forth in the Specific Plan and shall not extend
beyond November 30, 2088.
b. If the panel preliminarily determines, based upon substantial
evidence in the record before it, that OWNER has not
substantially compled with its approvals and permits, but
confirms that the potential environmental impacts of the Project
would remain as identified in the EIS/EIR, then the panel shall
provide to OWNER in writing all such reasons for its
determination, and promptly meet with OWNER. If the panel and
OWNER are able to reach agreement concerning OWNER's substantial
compliance, then this Agreement shall automatically be continued
for the period delineated in OWNER's
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<PAGE>
Continuation Notice, which shall not exceed the then-expected
remaining life of the Landfill's capacity as set forth in the
Specific Plan and shall not extend beyond November 30, 2088,
subject to the implementation of such agreement by OWNER.
In the event the panel and OWNER are unable to reach agreement
within ninety (90) days of commencement of discussions, then:
i. OWNER may terminate the process, in which case the then-
existing term of this Agreement shall not be continued
beyond its expiration date; or
ii. OWNER may request mediation of the matter by the Chief
Executive Officer of the COUNTY or his designee. Such
request shall be in writing, addressed to the Chief
Executive Officer and the panel (in care of the Dean of UCR
CE-CERT or his/her substitute as described in the fourth
paragraph above of this subsection 2.3.1) and be sent by
certified mail, return receipt requested. If at the
conclusion of the mediation process OWNER and the panel are
able to reach agreement, then this Agreement shall
automatically be continued for the period delineated in
OWNER's Continuation Notice, which shall not exceed the
then-expected remaining life of the Landfill's capacity as
set forth in the Specific Plan and shall not extend beyond
November 30, 2088, subject to the implementation of such
agreement by OWNER. In the event OWNER and the panel are
unable to reach agreement, OWNER may terminate the process,
and the then-existing term of this Agreement shall not be
continued beyond its expiration date.
c. If the panel determines, based upon substantial evidence in the
record before it, that it cannot confirm that the potential
environmental impacts of the Project would remain as identified
in the EIS/EIR, then the panel shall provide to OWNER in writing
all such reasons for its determination, the determination shall
be reported to the Board of Supervisors and the then-existing
term of this
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Agreement shall not at that time be continued beyond
its expiration date.
2.3.2 Specific Plan No. 305, Site Specific Plot Plans and Plot
--------------------------------------------------------
Plans. The term of Specific Plan No. 305 and any Site Specific Plot Plans (see
- ------
Section 3.5 below) or Plot Plans (see Section 3.6 below) shall be co-terminous
with the term of this Agreement (including any continuation beyond the 50-year
initial term pursuant to Section 2.3.1 above), subject to the following: (a) the
termination of this Agreement by reason of the default by COUNTY shall not cause
a termination of the Specific Plan or any Site Specific Plot Plans or Plot
Plans; and (b) in order to provide for closure and post-closure care and
maintenance of the Landfill as required by law, upon termination of this
Agreement (for reason other than COUNTY's default), the Specific Plan, Site
Specific Plot Plans and Plot Plans shall continue for a period of thirty (30)
years (subject to extension as provided below) after the termination of this
Agreement, solely for purposes of closure and post-closure care and maintenance
of the Landfill pursuant to the provisions of Federal Subtitle D regulations at
40 CFR Section 258.61 and California Code of Regulations at Title 27, Section
21180. The term of the Specific Plan, Site Specific Plot Plans and Plot Plans
may be extended beyond the term provided herein in the discretion of the COUNTY
Board of Supervisors, or in the event that the time required for post-closure
care exceeds 30 years, as determined by then applicable laws and regulations
governing landfill closure and post-closure care requirements.
2.4 Assignment.
-----------
2.4.1 Right to Assign. OWNER shall have the right to sell,
---------------
transfer or assign its interest in and to the Property or Project in whole or in
part (provided that no such partial transfer shall violate the Subdivision Map
Act, Government Code Section 66410 et seq., or Riverside County Ordinance No.
460) to any person, partnership, joint venture, firm, corporation, trust,
limited liability company, public agency, quasi-public agency, governmental
authority or any other person or entity at any time during the term of this
Agreement. Concurrent with any such sale, transfer or assignment, or within
fifteen (15) business days thereafter, OWNER shall notify COUNTY, in writing, of
such sale, transfer or assignment and shall provide COUNTY with an executed
agreement, in a form reasonably acceptable to COUNTY, by the purchaser,
transferee or assignee and providing therein that the purchaser, transferee or
assignee expressly and unconditionally assumes all the duties and obligations of
OWNER under this Agreement; provided, however, and notwithstanding the
foregoing, MRC shall not sell, transfer or assign its leasehold interest in
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<PAGE>
and to the Landfill without the prior written consent of the COUNTY which shall
not be unreasonably delayed, conditioned or withheld.
Notwithstanding the failure of any purchaser, transferee or assignee to
execute the agreement hereinabove, the burdens of this Agreement shall be
binding upon such purchaser, transferee or assignee, but the benefits of this
Agreement shall not inure to such purchaser, transferee or assignee until and
unless such agreement is executed.
The provisions of this Subsection are not intended to affect, and shall not
affect, OWNER's right to encumber the Property or any interest therein pursuant
to Section 10 below.
2.4.2 Release of Transferring Owner. Notwithstanding any sale,
-----------------------------
transfer or assignment, a transferring OWNER shall continue to be obligated
under this Agreement unless such transferring OWNER is given a release in
writing by COUNTY, which release shall be provided by COUNTY upon the full
satisfaction by such transferring OWNER of the following conditions:
(a) OWNER no longer has a legal or equitable interest in all or
any part of the Property or Project, except OWNER may be
permitted to be a mortgagee.
(b) OWNER is not then in material default under this Agreement.
(c) OWNER has provided COUNTY with the notice and agreement
executed in accordance with Subsection 2.4.1 above.
(d) The purchaser, transferee or assignee provides COUNTY with
financial assurances substantially equivalent to any
financial assurances previously provided by OWNER to secure
performance of its obligations hereunder.
The release of the transferring OWNER in accordance with this Section 2.4.2
(i) shall not be delayed upon the satisfaction of the conditions set forth
herein, and (ii) shall be canceled and of no force and effect should the
transferring OWNER re-acquire any legal or equitable interest in all or any part
of the Property or Project, except as permitted as a mortgagee.
2.4.3 Subsequent Assignment. Any subsequent sale, transfer or
---------------------
assignment after an initial sale, transfer or
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assignment shall be made only in accordance with and subject to the terms and
conditions of Section 2.4.1.
2.4.4 Partial Release of Purchaser, Transferee or Assignee of
-------------------------------------------------------
Industrial or Commercial Lot. A purchaser, transferee or assignee of a lot,
- ----------------------------
which has been finally subdivided and for which a commercial or industrial plot
plan for development of the lot, other than as a landfill of any type, has been
finally approved, may submit a request, in writing, to COUNTY to release said
lot from the obligations under this Agreement relating to all other portions of
the Property. Within sixty (60) days of such request, COUNTY shall review, and
if the above conditions specified in this Section 2.4.4 are satisfied (i.e., the
lot has been finally subdivided and a commercial or industrial plot plan for the
development of the lot has been finally approved), shall approve the request for
release and notify the purchaser, transferee or assignee in writing thereof. No
such release approved pursuant to this Subsection 2.4.4 shall cause, or
otherwise effect, a release of OWNER from its duties and obligations under this
Agreement.
2.5 Amendment or Cancellation of Agreement. This Agreement may be amended
---------------------------------------
or canceled in whole or in part only by written consent of all parties in the
manner provided for in Government Code Section 65868 or applicable provision.
This provision shall not limit any remedy of COUNTY or OWNER as provided by this
Agreement.
2.6 Termination. This Agreement shall be deemed terminated and of no
------------
further effect upon the occurrence of any of the following events:
(a) Expiration of the applicable term of this Agreement as set
forth in Section 2.3.1.
(b) Entry of a final judgment by a court of competent
jurisdiction (including the exhaustion of all appeals or, if
no appeals are made, the expiration of all applicable
appeals periods) setting aside, voiding or annulling this
Agreement and/or the adoption of the ordinance approving
this Agreement.
(c) The adoption of a referendum measure overriding or repealing
the ordinance approving this Agreement.
(d) Failure of the Landfill to commence Start Up of Operations
within ten (10) years of the
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Effective Date of this Agreement.
(e) Default of either party, pursuant to the provisions of
Sections 8.4 and 8.5 of this Agreement.
Upon the termination of this Agreement, no party shall have any further
right or obligation hereunder except with respect to any obligation to have been
performed prior to such termination or with respect to any default in the
performance of the provisions of this Agreement which has occurred prior to such
termination or with respect to any obligations which are specifically set forth
as surviving this Agreement.
2.7 Disposal of Solid Waste. No Non-County Waste shall be knowingly
-----------------------
delivered to or accepted on the Property from any person, firm, entity or agency
source determined by the California Integrated Waste Management Board to be out
of compliance with the then current household hazardous waste and recycling
regulations unless disposal of waste in the Landfill would be a part of such
source's proposed means to remedy any non-compliance. Except as otherwise
provided herein, all solid waste shall be screened and processed through a
transfer facility or materials recovery facility and meet the requirements for
disposal at a Class III Nonhazardous solid waste disposal facility. If the
Nonhazardous solid waste is County Waste, it shall be processed through
facilities approved in accordance with the Riverside County Integrated Waste
Management Plan (Waste Plan) if (i) the Waste Plan has been adopted; and (ii)
the provisions of the Waste Plan are being applied on a uniform and consistent
basis on all landfills within the COUNTY. Notwithstanding any provision of this
Section to the contrary, nothing shall prohibit the disposal of nonhazardous
solid County Waste from being deposited within the Landfill.
2.8 Restriction on Importation. No waste shall knowingly be delivered to
--------------------------
or accepted at the Property which was generated at a site outside of the
California counties of Los Angeles, Ventura, Santa Barbara, Riverside, Orange,
San Diego and San Bernardino without any further environmental review as
required by CEQA or other applicable law.
No waste generated outside the geographic boundaries of the State of
California shall knowingly be delivered to or accepted at the Property. The
restrictions of this paragraph of Section 2.8 represent a voluntary and
contractual agreement between OWNER and COUNTY.
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<PAGE>
2.9 Notices.
-------
(a) As used in this Agreement, "notice" includes, but is not limited
to, the communication of notice, request, demand, approval, statement, report,
acceptance, consent, waiver, appointment or other communication required or
permitted hereunder.
(b) All notices shall be in writing and shall be considered given
either: (i) when delivered in person to the recipient named below; or (ii) two
(2) business days after deposit in the United States mail in a sealed envelope
as either registered or certified mail with return receipt requested, and
postage and postal charges prepaid, and addressed to the recipient named below;
or (iii) on the date of delivery shown in the records of the telegraph company
after transmission by telegraph to the recipient named below; or (iv) upon
receipt of a facsimile (fax) transmission to the fax number listed below. All
notices shall be addressed as follows:
IF TO COUNTY:
Clerk of the Board of Supervisors
County of Riverside
4080 Lemon St., 14th Floor
P. O. Box 1147
Riverside, CA 92502-1147
Fax No.: 909-275-1071
WITH COPIES TO:
Chief Executive Officer
County of Riverside
4080 Lemon St., 12th Floor
Riverside, CA 92501
Fax No.: 909-275-1105
Director
Planning Department
County of Riverside
4080 Lemon St., 9th Floor
P.O. Box 1409
Riverside, CA 92502-1409
Fax No.: 909-275-3157
County Counsel
County of Riverside
3535 Tenth St., Suite 300
Riverside, CA 92501
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Fax No.: 909-275-6322
Chief Executive Officer
Riverside County Waste Resources Management District
1995 Market Street
Riverside, CA 92501
Fax No.: 909-275-1374
Director
Environmental Health
Health Administration Building
4065 County Circle Drive
Riverside, CA 92503
Fax No.: 909-358-5017
IF TO OWNER:
Mine Reclamation Corporation
43-645 Monterey Ave., Suite A
Palm Desert, CA 92260
Fax No.: 619-778-5891
WITH COPIES TO:
Mine Reclamation Corporation
Chief Executive Officer
43-645 Monterey Ave., Suite A
Palm Desert, CA 92260
Fax No.: 619-778-5891
Mine Reclamation Corporation
General Counsel
3633 E. Inland Empire Blvd., Suite 850
Ontario, CA 91764
Fax No.: 909-944-6605
IF TO KAISER EAGLE MOUNTAIN, INC., EAGLE MOUNTAIN RECLAMATION, INC. OR
KAISER VENTURES INC.:
Kaiser Eagle Mountain, Inc.
Eagle Mountain Reclamation, Inc.
Kaiser Ventures Inc.
Attn.: President
3633 E. Inland Empire Blvd., Suite 850
Ontario, CA 91764
Fax No.: 909-944-6605
(c) In the event notice is given by fax, a copy of the notice shall also
be mailed, by first-class mail, postage prepaid, to the
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recipients on the same day the fax notice is given.
(d) Either party may, by notice given at any time, require subsequent
notices to be given to another person or entity, whether a party or an officer
or representative of a party, or to a different address, or both. Notices given
before actual receipt of notice of change shall not be invalidated by the
change.
3. DEVELOPMENT OF THE PROPERTY.
---------------------------
3.1 Rights to Develop. Subject to the terms of this Agreement, including
-----------------
the Reservations of Authority, OWNER shall have a vested right to develop the
Property and operate the Landfill and other improvements constructed on the
Property in accordance with, and to the extent of, the Development Plan. This
vested right includes the right to obtain all approvals required for the Start
Up of Operations as contemplated by the Development Plan, including the
administrative approval of a Site Specific Plot Plan(s) consistent with and in
accordance with Specific Plan No. 305 and its zoning ordinance. Except as
otherwise provided in this Agreement, the permitted uses of the Property, the
density and intensity of use, the maximum height and size of proposed buildings,
and provisions for reservation and dedication of land for public purposes shall
be those set forth in the Development Plan.
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise
-------------------------------------------
provided under the terms of this Agreement (including the Reservations of
Authority), the rules, regulations and official policies governing permitted
uses of the Property, the intensity of use of the Property, the maximum height
and size of proposed buildings, and the design, improvement and construction
standards and specifications applicable to development of the Property with
respect to all required approvals for the Start Up of Operations shall be the
Existing Land Use Regulations. In connection with any Subsequent Development
Approval, COUNTY shall exercise its discretion in accordance with the
Development Plan, and as provided by this Agreement including, but not limited
to, the Reservations of Authority. COUNTY shall accept for processing, review
and action all applications for Subsequent Development Approvals. COUNTY agrees
to promptly commence and diligently proceed to complete the review of all of
OWNER's applications for Subsequent Development Approvals during the preparation
of all drawings, plans, and related documents. The staffs of COUNTY and OWNER
shall hold regular progress meetings as needed to coordinate the preparation and
review of such items. The staffs of COUNTY and OWNER shall communicate and
consult informally as frequently as is
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<PAGE>
necessary to insure that formal submittal of any documents to COUNTY can receive
prompt and speedy attention. COUNTY shall not unreasonably delay or withhold the
approval of any application for a Subsequent Development Approval. Any
disapproval by COUNTY shall state in writing all of the reasons for disapproval.
No plan, permit or approval required for the Development of the Project shall be
revoked or subsequently disapproved once issued by COUNTY provided that the
plan, permit or approval is consistent with the Project.
3.3 Timing of Development. The parties acknowledge that OWNER cannot at
---------------------
this time predict when or the rate at which phases of the Property will be
developed. Such decisions depend upon numerous factors which are not within the
control of OWNER, such as market orientation and demand, interest rates,
absorption, completion and other similar factors. Since the California Supreme
Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465,
--------------------------------------------
that the failure of the parties therein to provide for the timing of development
resulted in a later adopted initiative restricting the timing of development to
prevail over such parties' agreement, it is the parties' intent to cure that
deficiency by acknowledging and providing that OWNER shall have the right to
develop the Property in such order and at such rate and at such times as OWNER
deems appropriate within the exercise of its subjective business judgment,
subject only to any timing or phasing requirements set forth in the Development
Plan and Section 2.6(d) hereof.
3.4 Changes and Amendments. The parties acknowledge that refinement and
----------------------
further development of the Project will require Subsequent Development Approvals
and may demonstrate that changes are appropriate and mutually desirable in the
Existing Development Approvals. In the event OWNER finds that a change in the
Existing Development Approvals is necessary or appropriate, OWNER shall apply
for a Subsequent Development Approval to effectuate such change and COUNTY shall
process and act on such application in accordance with the Existing Land Use
Regulations, except as otherwise provided by this Agreement. If approved, any
such change in the Existing Development Approvals shall be incorporated herein
as an addendum to Exhibit "C," and may be further changed from time to time as
provided in this Section. Unless otherwise required by law, a change to the
Existing Development Approvals may be deemed "minor," as determined in COUNTY's
reasonable discretion, and not require an amendment to this Agreement.
3.5 Site Specific Plot Plan(s). The parties acknowledge that
--------------------------
implementation of the Landfill and Project as defined in (S)1.1.17(a)-(h) hereof
requires the approval of Site Specific Plot
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Plan(s)and that refinement and further development of the Landfill and Project
as defined in (S)1.1.17(a)-(h) hereof may require future amendments to the Site
Specific Plot Plan(s). The parties agree that, to the extent legally
permissible, Site Specific Plot Plan(s) (including any grading permit(s) and
building permit(s)) for the Landfill and Project as defined in (S) 1.1.17(a)-
(h), and any amendments thereto, shall be reviewed and approved by the COUNTY at
an administrative level to determine its compliance with Specific Plan No. 305
and the Specific Plan zoning ordinance in accordance with the COUNTY's
procedures for plot plans that are not subject to California Environmental
Quality Act review but are transmitted to one or more governmental agencies
other than the Riverside County Planning Department pursuant to Section 18.30 of
Riverside County Ordinance No. 348. The parties further agree that the
provisions of Section 18.30.d(3) and Section 18.30.e. of Riverside County
Ordinance No. 348 shall not apply to Site Specific Plot Plan(s) implementing or
refining the Landfill and Project as defined in (S)1.1.17(a)-(h) and that the
decision of the Planning Director on Site Specific Plot Plan(s) shall be final.
The term of any Site Specific Plot Plan shall not extend beyond the term of
Specific Plan No. 305 (see Section 2.3.2 above).
3.6 Plot Plan(s). Plot Plans(s) for any other use, including but not
------------
limited to uses defined in (S)1.1.17(i)-(v) hereof, and any amendments thereto,
shall be processed in accordance with the Existing Land Use Regulations except
as otherwise provided by this Agreement, including the Reservations of
Authority.
The term of any Plot Plan shall not extend beyond the term of Specific Plan
No. 305 (see Section 2.3.2 above).
3.7 Application Fees. In connection with the processing of any
----------------
discretionary or administrative approval required in order to achieve Start Up
of Operations, including, but not limited to, Specific Plan No. 305 and its
Zoning Ordinance, General Plan Amendment No. 402, Revised Permit to Reclamation
Plan No. 107, any Site Specific Plot Plan(s) and the approval of this Agreement,
OWNER shall (i) deposit in advance with COUNTY the entire amount of any fee set
forth in the then-current COUNTY fee schedule for the processing of such
approval, plus (ii) if the time actually and reasonably expended by COUNTY staff
in processing any such approval, multiplied by the hourly rate of such personnel
as set forth in Riverside County Ordinance Nos. 671 and 457, as they may be
amended from time to time, exceeds the amount of the funds previously deposited
by OWNER, upon written notice from COUNTY, OWNER shall deposit with COUNTY
additional funds so that the total fee paid equals COUNTY's actual, reasonable
processing costs.
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3.8 Reservations of Authority.
-------------------------
3.8.1 Limitations, Reservations and Exceptions. Notwithstanding
-----------------------------------------
any other provision of this Agreement, the following Subsequent Land Use
Regulations shall apply to the development of the Property.
(a) Standard processing fees and charges for processing Subsequent
Development Approvals (including without limitation all General
Plan Amendments, Specific Plan Amendments, Changes of Zone or
Subdivision Maps within the boundaries of the Project as
described in Exhibit "A"), and all Site Specific Plot Plans and
Plot Plans within the boundaries of the Project imposed by COUNTY
on a uniform COUNTY-wide basis at the time such fees are due, to
cover the actual costs incurred by COUNTY for processing
applications for such Subsequent Development Approvals, Site
Specific Plot Plans and Plot Plans unless such processing fees
and charges have been waived for any other privately owned or
operated landfill in the COUNTY.
(b) Except as provided in Section 3.5, procedural regulations
relating to hearing bodies, petitions, applications, notices,
findings, records, hearings, reports, recommendations, appeals
and any other matter of procedure.
(c) Regulations governing construction standards and specifications
including, without limitation, the COUNTY's Building Code,
Plumbing Code, Mechanical Code, Electrical Code, Fire Code and
Grading Code.
(d) Regulations imposing Development Exactions with respect to
Subsequent Development Approvals; provided, however, that no such
subsequently adopted Development Exaction shall be applicable to
development of the Property unless such Development Exaction is
applied uniformly to development, either throughout the COUNTY or
within a defined area of benefit which includes the Property. No
such subsequently adopted Development Exaction shall apply if its
application to the Property would prevent or substantially impair
development or operation of the Property for the uses and to the
density or intensity of development set forth
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<PAGE>
in the Development Plan.
(e) Except for the Landfill and the Project as defined in (S)
1.1.17(a)-(h) hereof, Land Use Regulations in effect on the date
the application is submitted to COUNTY and deemed complete.
Nothing in this Section is intended to exempt or otherwise relieve OWNER
from its obligations to pay ad valorem property taxes and assessments (including
any increases in same) in accordance with State law, or other taxes that may in
the future be imposed on a Statewide level.
3.8.2 Modification or Suspension by State or Federal Law. In the
--------------------------------------------------
event that State or Federal laws or regulations, enacted after the Effective
Date of this Agreement, prevent or preclude compliance with one or more of the
provisions of this Agreement, such provisions of this Agreement shall be
modified or suspended as may be necessary to comply with such State or Federal
laws or regulations, provided, however, that this Agreement shall remain in full
force and effect to the extent it is not inconsistent with such laws or
regulations and to the extent such laws or regulations do not render such
remaining provisions impractical to enforce.
3.8.3 Intent. The parties acknowledge and agree that COUNTY is
------
restricted in its authority to limit its police power by contract and that the
foregoing limitations, reservations and exceptions are intended to reserve to
COUNTY all of its police power which cannot be so limited. This Agreement shall
be construed, contrary to its stated terms if necessary, to reserve to COUNTY
all such power and authority which cannot legally be restricted by contract.
3.9 Public Works. If OWNER is required by this Agreement to construct any
------------
public works facilities which will be dedicated to COUNTY or any other public
agency upon completion, and if required by applicable laws to do so, OWNER shall
perform such work in the same manner and subject to the same requirements as
would be applicable to COUNTY or such other public agency should it have
undertaken such construction.
3.10 Access and Rights of Way. In addition to the right of access and use
------------------------
of all public rights-of-way, COUNTY and OWNER acknowledge and agree that certain
real property, together with improvements thereon, are required by OWNER for the
development and operation of the Project. COUNTY acknowledges that in the event
that OWNER has, after exercising reasonable efforts, been unable to
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acquire the real property interest necessary for such access and related
facilities required to service the Project, that in order to facilitate the
acquisition of such real property interest, COUNTY agrees to use its best
efforts to negotiate the purchase of such necessary real property interests in
order to allow OWNER to construct such access and related facilities as required
by this Agreement and if necessary, and in compliance with the procedures
established by law, use its power of eminent domain to acquire such required
real property interests. OWNER shall pay all costs associated with such
acquisition or condemnation proceedings. This Section 3.10 is not intended by
the parties to impose upon the OWNER an enforceable duty to acquire land or
construct any public improvements on land not owned by OWNER, except to the
extent that the OWNER elects to proceed with the development of the Project, and
then only in accordance with valid conditions imposed by the COUNTY upon the
development of the Project under the Subdivision Map Act or other legal
authority.
3.11 Regulation by other Public Agencies. It is acknowledged by the
-----------------------------------
parties that other public agencies, governmental authorities or public utilities
("public agencies") not within the direct or indirect control of COUNTY possess
authority to regulate aspects of the development of the Property separately from
or jointly with COUNTY, and this Agreement does not limit the authority of such
other public agencies. COUNTY agrees, in good faith, to use its best efforts to
assist OWNER or such other public agencies in the processing and/or review of
any and all permits or approvals which may be required for the development and
operation of the Project that are within the authority or otherwise issued or
granted by other public agencies with jurisdiction over the development and
operation of the Project. Any joint exercise of a regulatory authority between
COUNTY and any other public agency shall be exercised by COUNTY consistent with
the terms of this Agreement. This Agreement does not limit the authority, nor
expand the duties, of the COUNTY or the Local Enforcement Agency to enforce
applicable state and federal regulations.
3.12 Local Enforcement Agency Authority.
----------------------------------
3.12.1 OWNER and COUNTY agree that the Local Enforcement Agency
(LEA) designated by COUNTY and approved by the California Integrated Waste
Management Board shall have authority to regulate all disposal, processing
and/or transferring activities at the Project and shall have the right to make
reasonable inspections to determine compliance with applicable laws and
regulations.
3.12.2 OWNER and COUNTY further agree that inspection
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and monitoring of all solid waste facilities which are involved in the flow of
waste to the Project is necessary to assure themselves of compliance with the
Nonhazardous solid waste standards for all waste destined for the Project. OWNER
and COUNTY, therefore, agree to the following:
(a) The LEA may participate, subject to appropriate state
authority, in the regulation of all solid waste facilities
which are involved in the flow of waste to the Project;
(b) In the event the LEA authority cannot be extended outside
the boundaries of COUNTY, then OWNER agrees that COUNTY may
elect to direct its Department of Environmental Health staff
to perform such inspection and monitoring of all solid waste
facilities involved in the flow of waste to the Project;
(c) OWNER shall include a provision in each contract with a
supplier of Non-County Waste that:
(i) requires the waste supplier to operate under a valid
Solid Waste Facilities Permit for such operations;
(ii) requires the waste supplier to have and follow
documented inspection procedures which seek to ensure
that hazardous material and other prohibited materials
are not included in the Nonhazardous solid waste
delivered to the Project;
(iii) provides that the waste supplier shall not ship to the
Landfill Non-hazardous waste from a community which has
been found by a governmental agency or jurisdiction to
be in violation of the provisions of any applicable
state or federal law dealing with waste diversion to
the Landfill unless diversion of waste to the Landfill
through a state permitted recycling or transfer
facility is an approved step to remedy any non-
compliance;
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(iv) requires that the OWNER has the right to inspect,
without notice, any facility from which waste will be
delivered to the Project;
(v) provides that OWNER may terminate or suspend any
contract with any facility shipping waste to the
Project if OWNER determines that the facility is not
operating in substantial accordance with its permit, or
is not substantially implementing its documented
inspection procedure, or that the community served by
it is not meeting the provisions of any applicable
state or federal law dealing with waste diversion;
(vi) provides the LEA and/or COUNTY Department of
Environmental Health staff have the right to inspect,
without notice, from time-to-time, but no more than
once in any six-month period in the absence of a
violation of the terms of the facility permit, any
solid waste facility from which waste will be delivered
to the Project.
(d) OWNER shall, periodically on its own, and at any time
requested by the LEA and/or COUNTY Department of
Environmental Health, inspect all facilities from which
waste is shipped to the Project or from which waste is
delivered to the Project in order to verify proper
implementation of the waste suppliers' documented inspection
procedures and substantial compliance with all applicable
state and federal solid waste laws and regulations,
including but not limited to those dealing with waste
diversion requirements. In addition, OWNER shall give the
LEA and/or COUNTY Department of Environmental Health the
opportunity to accompany OWNER during any such inspections.
(e) Prior to the initial shipment of waste from a solid waste
facility, and from time to time thereafter, the LEA and/or
COUNTY Department of Environmental Health shall have the
right
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to verify that the solid waste facility (1) is
operating in substantial compliance with its permit, (2) has
a documented inspection procedure to ensure that hazardous
materials and other prohibited materials are not included in
waste shipped to the Project, and (3) is substantially
implementing its documented inspection procedures, and that
(4) the community it serves is in substantial compliance
with applicable state and federal laws dealing with waste
diversion. Shipments will not be made to or accepted at the
Project from any facility found not to be in compliance with
this section.
(f) The LEA and/or COUNTY Department of Environmental Health
shall have the unrestricted right to inspect at any time any
and all shipments of waste which are received at the Project
to insure that only Nonhazardous solid waste is disposed of
at the Landfill and is being delivered to the Project; such
inspections shall not unreasonably or without cause disrupt
or interfere with normal operations of the Landfill.
(g) OWNER shall reimburse the LEA and/or COUNTY Department of
Environmental Health, within thirty (30) days of billing,
for all reasonable costs the LEA and/or COUNTY Department of
Environmental Health incur in connection with the inspection
and monitoring requirements set forth herein.
3.13 Vesting Tentative Maps. If any tentative or final subdivision map, or
----------------------
tentative or final parcel map, hereafter approved in connection with development
of the Property, is a vesting map under the Subdivision Map Act (Government Code
Section 66410, et seq.) and Riverside County Ordinance No. 460, and if this
-------
Agreement is determined by a final judgment of a court of competent jurisdiction
(including the exhaustion of all appeals or, if no appeals are made, the
expiration of all applicable appeals periods) to be invalid or unenforceable
insofar as it grants a vested right to develop to OWNER, then and to that extent
the rights and protections afforded OWNER under the laws and ordinances
applicable to vesting maps shall supersede the provisions of this Agreement.
Except as set forth immediately above, development of the Property
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shall occur only as provided in this Agreement and other Development Approvals,
and the provisions of this Agreement shall be controlling over any conflicting
provision of law or ordinance concerning vesting maps.
3.14 Staged Tonnage Increase. The EIS/EIR for the Project adequately
-----------------------
analyzes the environmental impacts of disposing up to 20,000 tons per day of
non-hazardous municipal solid waste at the Landfill for a period of over 100
years and includes appropriate mitigation therefor. The COUNTY has approved a
maximum of 20,000 tons per day in total County Waste and Non-County Waste to be
disposed at the Landfill. The parties agree to stage the daily volume of
disposal of Non-County Waste as follows.
OWNER may dispose of an average of ten thousand (10,000) tons per day
(i.e., a maximum of 260,000 tons per month) of Non-County Waste.
OWNER may, at any time after ten (10) years from Start Up of
Operations (or earlier with the concurrence of COUNTY's Chief Executive Officer)
and up to five (5) times during the term of this Agreement, notify the COUNTY's
Chief Executive Officer of OWNER's intention to increase the daily tonnage of
County Waste plus Non-County Waste to be disposed at the site, up to a maximum
total of 20,000 tons per day (520,000 tons per month). Any such notification
("OWNER'S STAGED TONNAGE NOTICE") shall be in writing and submitted to the
COUNTY's Chief Executive Officer by certified mail, return receipt requested.
The COUNTY's Chief Executive Officer shall cause OWNER's Staged Tonnage Notice
to be delivered to, and reviewed by, an independent panel of five scientists and
engineers who shall be selected by the Dean/Chairman of Bourns College of
Engineering Center for Environmental Research and Technology, University of
California at Riverside (UCR CE-CERT)(or other designee of the Chancellor of UCR
if CE-CERT is no longer part of UCR), with the concurrence of OWNER. If OWNER
and the Dean/Chairman of UCR CE-CERT are unable to agree upon the selections to
such panel within forty-five (45) days of the date of OWNER's Notice, then the
panel shall be selected as follows within thirty (30) days thereafter: two (2)
members shall be selected by the Dean/Chairman of UCR CE-CERT (or other designee
of the Chancellor of UCR if CE-CERT is no longer part of UCR); two (2) members
shall be selected by OWNER from a list of ten qualified scientists and engineers
provided to OWNER by the Dean/Chairman of UCR CE-CERT (or other designee of the
Chancellor of UCR if CE-CERT is no longer part of UCR); and the fifth member
shall be selected by the other four (4) members.
If the Dean/Chairman of UCR CE-CERT (or other designee of
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the Chancellor of UCR if CE-CERT is no longer part of UCR) is unable or
unwilling to perform in accordance with the foregoing paragraph, or if the
Citizens Oversight Committee established in the conditions of approval for the
Specific Plan determines that UCR or UCR CE-CERT has a conflict of interest
arising from the UCR Endowment (See Section 4.7.8), then, within forty-five (45)
days of the date of OWNER's Staged Tonnage Notice, the COUNTY's Chief Executive
Officer shall designate and cause a Chancellor/Dean from another university
within the State of California to work with OWNER to make such selections (or,
in the event OWNER and such designee cannot agree, then to make two selections
each, pursuant to and within the time periods specified in the foregoing
paragraph).
The panel shall limit its review to confirming that OWNER has
substantially complied with all Existing Development Approvals, Subsequent
Development Approvals and regulatory permits related to the construction and
operation of the Landfill and confirming that the potential environmental
impacts of the Project would remain as identified in the EIS/EIR. Any action or
concurrence of a majority of the members of the panel shall be deemed to be the
action of the panel for purposes of this Agreement.
The panel shall conduct and complete its review within eight (8)
months of the date of OWNER's Staged Tonnage Notice, and shall consider the
EIS/EIR, the Existing and any Subsequent Development Approval documents and such
existing site-specific data and evidence as may be presented by OWNER and
appropriate regulatory agencies responsible for the issuance and enforcement of
regulatory permits for the Landfill.
a. If the panel confirms, based upon substantial evidence in the record
before it, that OWNER has substantially complied with such approvals
and permits and that the potential environmental impacts of the
Project would remain as identified in the EIS/EIR, then OWNER shall
automatically be allowed to increase the daily tonnage of Non-County
Waste to be disposed at the Landfill, up to the daily tonnage amount
indicated in OWNER's Staged Tonnage Notice, provided that the total
tonnage of County Waste plus Non-County Waste shall not exceed 20,000
tons per day.
b. If the panel preliminarily determines, based upon substantial evidence
in the record before it, that OWNER has not substantially complied
with its approvals and permits, but confirms that the potential
environmental impacts of the Project would remain as identified in the
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<PAGE>
EIS/EIR, then the panel shall provide to OWNER in writing all such
reasons for its determination, and promptly meet with OWNER. If the
panel and OWNER are able to reach agreement concerning OWNER's
substantial compliance, OWNER shall automatically be allowed to
increase the daily tonnage of Non-County Waste, up to the daily
tonnage amount indicated in OWNER's Staged Tonnage Notice, provided
that the total tonnage of County Waste plus Non-County Waste shall not
exceed 20,000 tons per day, subject to the implementation of such
agreement by OWNER.
In the event the panel and OWNER are unable to reach agreement within
ninety (90) days of commencement of discussions, then:
i. OWNER may terminate the process, in which case OWNER shall not be
allowed to increase its average daily tonnage of Non-County
Waste; or
ii. OWNER may request mediation of the matter by the Chief Executive
Officer of the COUNTY or his designee. Such request shall be in
writing, addressed to the Chief Executive Officer and the panel
(in care of the Dean of UCR CE-CERT or his/her substitute as
described in the fourth paragraph above of this Section 3.14) and
be sent by certified mail, return receipt requested. If at the
conclusion of the mediation process OWNER and the panel are able
to reach agreement, then OWNER shall automatically be allowed to
increase the daily tonnage of Non-County Waste, up to the daily
tonnage amount indicated in OWNER's Staged Tonnage Notice,
provided that the total tonnage of County Waste plus Non-County
Waste shall not exceed 20,000 tons per day, subject to the
implementation of such agreement by OWNER. In the event OWNER and
the panel are unable to reach agreement, OWNER may terminate the
process, and OWNER shall not be allowed to increase its daily
tonnage of Non-County Waste.
c. If the panel determines, based upon substantial evidence in the record
before it, that it cannot confirm that the potential environmental
impacts of the Project would remain as identified in the EIS/EIR, then
the panel shall provide to OWNER in writing all such reasons for its
determination, that determination shall be reported to
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<PAGE>
the Board of Supervisors, and OWNER shall not at that time be allowed
to increase its daily tonnage of Non-County Waste.
4. ECONOMIC BENEFITS.
-----------------
4.1 Intent. The parties acknowledge and agree that development of the
------
Property and operation of the Landfill will result in substantial public needs
which will not be fully met by the Development Plan and further acknowledge and
agree that this Agreement confers substantial private benefits on OWNER which
should be balanced by commensurate public benefits and mitigation. Accordingly,
the parties intend to provide consideration to the public to balance the private
benefits conferred on OWNER by providing more fully for the satisfaction of the
public needs and mitigating potential impacts resulting from the Project.
4.2 Conveyance of Capacity of the Project. MRC hereby grants COUNTY an
-------------------------------------
undivided eight percent (8%) interest in and to the air space of its leasehold
interest in the Property as of the Effective Date of this Agreement in order to
offset the diminution of future capacity within the COUNTY for the disposal of
waste generated by its residents. Conveyance of said eight percent (8%)
undivided interest (hereinafter "COUNTY INTEREST") will be effected by the
delivery by MRC to COUNTY of an assignment of MRC's leasehold interest
concurrently with the execution of this Agreement by MRC, which assignment shall
be effective as of the Effective Date of this Agreement. The assignment
documentation shall be in the same form as that attached hereto as Exhibit "E"
incorporated herein by reference and made a part hereof.
4.3 Purchase of County Interest. Because the COUNTY currently has more
---------------------------
geographically convenient and currently more cost effective disposal facilities
available to it, the capacity of which could accommodate waste generated within
Riverside County for at least the next decade, and because the COUNTY does not
wish to hold the County Interest for a long period of time given the potential
for liability and the removal of the value of the interest from the COUNTY tax
rolls, the COUNTY hereby accepts the County Interest only with the understanding
that the County Interest is declared by COUNTY to be surplus property of the
COUNTY and shall be immediately sold to MRC pursuant to the provisions of the
Purchase and Sale Agreement. The Board of Supervisors finds and determines that
MRC is the only party reasonably able to purchase the County Interest, and that
the solicitation of bids for the purchase of the County Interest is futile and
will not produce an advantage to the COUNTY. COUNTY's determination that the
County Interest will be sold to MRC without fulfilling the requirements of
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<PAGE>
Government Code Section 25520, et seq. is made pursuant to the provisions set
-------
forth in Meakin v. Steveland (1977) 68 Cal.App.3d 490.
-------------------
4.4 Conveyance Documentation. Title to the County Interest will be
------------------------
conveyed to MRC as of the effective date of the Purchase and Sale Agreement,
which shall be the Effective Date of this Agreement. The conveyance
documentation shall be in the same form as that attached hereto as Exhibit "G"
incorporated herein by reference and made a part hereof.
4.5 Default of Purchase and Sale Agreement. The parties agree that
--------------------------------------
default in the payment of the purchase price as set forth in the Purchase and
Sale Agreement shall be a default of this Development Agreement.
4.6 Capacity Rights. As further consideration for the vested development
---------------
rights being granted to OWNER under this Agreement, OWNER covenants and agrees
that from the Start Up of Operations and during the entire term of this
Agreement, the COUNTY or Riverside County Waste Resources Management District
("DISTRICT") or, with the concurrence of the COUNTY and District, cities or
other jurisdictions within the COUNTY, shall have the right to deliver to the
Project in the aggregate up to Two Thousand (2,000) tons per day of County Waste
at non-discriminatory rates which rates shall be determined after deducting the
Purchase Price payments (net of amounts to be set aside for Environmental
Mitigation Trust payments pursuant to Section 4.7.3 below) set forth in the
Purchase and Sale Agreement. To the extent that COUNTY, District and/or such
cities or other jurisdictions contract for and deliver in the aggregate more
that one thousand five hundred (1500) tons per day, there shall be a ten percent
(10%) discount from the basic price (i.e., from the non-discriminatory rate) set
forth in the disposal contract for all tonnage in excess of 1500 tons per day.
For purposes of this section, the "non-discriminatory rate" shall mean the
lowest rate being paid by any user at the time the rate is determined. The non-
discriminatory rate shall be subject to reduction from time to time during the
term of the disposal contract effective if and when any user pays a rate that is
lower than the initial non-discriminatory rate. Any such reductions in the non-
discriminatory rate shall not be retroactive or applicable to waste previously
disposed at the Project. The reservation of capacity rights set forth
hereinabove shall be non-cumulative, shall be used or lost on a daily basis, and
shall continue for the entire term of this Agreement. In addition, to the
extent that OWNER has permitted, but uncommitted daily capacity at the Project,
COUNTY or District or, with the concurrence of COUNTY and District, cities or
jurisdictions within the COUNTY, shall at any time during the term of this
Agreement have the first priority to contract for
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<PAGE>
and deliver County Waste to the Project. For purposes of this Section,
"permitted, but uncommitted daily capacity at the Project" shall mean the daily
capacity calculated in tons per day which the Project is legally permitted to
accept minus the number of tons per day which it is contractually committed to
accept from others, as of the date the COUNTY, District or city or jurisdiction
within the COUNTY enters into the contract with OWNER to deliver such waste.
4.7 Additional Payments by OWNER. In addition to the purchase price,
----------------------------
OWNER shall make the following payments:
4.7.1 State and Federal Trust/Insurance Programs. OWNER shall
------------------------------------------
maintain or cause to be maintained all trust funds and/or insurance programs and
pay all fees now required or which in the future may be required by State or
Federal law or regulatory programs for operation of a landfill including but not
limited to those established under the provisions of Federal Subtitle D
regulations at 40 CFR Section 258.61 and California Code of Regulations at Title
27, Section 21180 for closure and post-closure funds, corrective action funds
and general or environmental liability funds.
4.7.2 Insurance. OWNER shall procure and pay the premium for
---------
Comprehensive General Liability insurance for the Landfill which policy shall
name COUNTY as an additional insured in amounts and upon such terms as shall be
agreed upon by OWNER and the COUNTY. OWNER shall procure as necessary all other
insurance required by applicable law.
4.7.3 Park, Open Space, Habitat Mitigation, Environmental
---------------------------------------------------
Monitoring and Research. As a mitigation measure for the potential
- -----------------------
environmental impacts of the Project pursuant to the EIS/EIR for the Project,
and in accordance with the biological opinion issued by the U.S. Fish & Wildlife
Service pursuant to Section 7 of the federal Endangered Species Act, an
environmental mitigation trust payment equal to One Dollar ($1.00) per ton of
waste delivered to the Landfill shall be paid. The following sums shall be
deposited into an Environmental Mitigation Trust to be established by COUNTY as
provided in Section 4.7.4 below: (i) from the proceeds paid by OWNER to COUNTY
under the Purchase and Sale Agreement, the sum of Ninety Cents ($.90) per ton
for each ton of Non-County Waste actually disposed at the Landfill; and (ii)
from OWNER directly, the sum of Ninety Cents ($0.90) per ton for each ton of
County Waste actually disposed at the Landfill. The parties acknowledge that
OWNER has agreed to pay Ten Cents ($.10) per ton of the $1.00 per ton
environmental mitigation trust payment directly to National Park Foundation, a
Congressionally chartered private corporation, under a separate agreement
between OWNER and the National Park Service. The use of the funds in the
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<PAGE>
Environmental Mitigation Trust shall be dedicated to the protection,
acquisition, preservation, and restoration of parks, open space, biological
habitat, scenic, cultural, and scientific resources; to support environmental
education and research; mitigation of the Project's environmental impacts; and
long term monitoring of the above-mentioned items.
4.7.4 Environmental Mitigation Trust. Prior to the Effective
------------------------------
Date, the Board of Supervisors of COUNTY shall establish an Environmental
Mitigation Trust in the form of Exhibit "H" attached hereto and incorporated
herein by this reference. The funds deposited into the Environmental Mitigation
Trust shall be expended and administered in accordance with the provisions of
Exhibit "H."
To the extent that OWNER may advance or otherwise pre-pay funds to the
Environmental Mitigation Trust pursuant to an agreement between OWNER and
COUNTY, then OWNER shall receive credit therefor, without interest, against
payment required by OWNER pursuant to Section 4.7.3 (ii).
The Board of Supervisors of COUNTY may pledge or encumber the assets
(including the right to receive future income) of the Environmental Mitigation
Trust to accomplish the purposes of the trust.
4.7.5 Rail Safety Improvement Trust Fund. In order to assist the
----------------------------------
residents in the Banning-Beaumont Pass area (Calimesa, Beaumont, Banning and
Cabazon) and/or the Eastern Coachella Valley area of Riverside County in
achieving local rail safety upgrades for existing, at-grade, crossings along the
Union Pacific Rail Line through Riverside County, OWNER agrees that it will fund
95% of the local share, not to exceed $500,000.00 per crossing, of the cost to
construct four (4) grade separation crossings of the rail line, pursuant to the
funding schedule set forth below.
Four grade separations in the Banning-Beaumont Pass area and/or
Eastern Coachella Valley shall be selected by the COUNTY and implemented in
accordance with the priorities established by the Public Utilities Commission
(PUC) Grade Separation Program. OWNER shall fund 95% of the local share, not to
exceed Five Hundred Thousand Dollars ($500,000.00) per grade separation, for
each of the four grade separations.
The funding schedule for OWNER's contribution towards the local share
is as follows:
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<PAGE>
(a) First and Second Crossings. For the first and second grade
--------------------------
separations approved, funding will be provided within ninety (90)
days of OWNER receiving all of the necessary local, state and
federal permits and approvals for operation of the Landfill,
provided that such grade separations qualify for funding under
the PUC program or similar program. Funding of these first two
grade separations shall be provided so that no more than one (1)
grade separation from each of the two areas listed above
(Banning-Beaumont Pass and Eastern Coachella Valley) is funded.
If at the time Landfill construction is commenced none, or only
one, of the grade separations qualify for funding under the PUC
or similar program, OWNER shall deposit said funds into a Rail
Safety Improvement Trust Fund ("RAIL SAFETY IMPROVEMENT TRUST
FUND") to be administered by the COUNTY for similar improvements
along the Union Pacific Rail Line in the Banning-Beaumont Pass
area and/or the Eastern Coachella Valley area of Riverside
County. In any event, the funds for the first two crossings
shall be spent equally between the two areas.
(b) Third and Fourth Crossings. For the third grade separation
--------------------------
approved, funding will be provided by OWNER when the waste
transported to the Project by rail reaches an average of 11,000
tons per day (tpd) over a 30-day period.
For the fourth grade separation approved, funding will be
provided by OWNER when the waste transported to the Project by
rail reaches an average of 15,000 tpd over a 30-day period.
The funds for the third and fourth grade separations shall be
used for crossings in either the Banning-Beaumont Pass area or
the Eastern Coachella Valley area. If no at-grade crossings in
Riverside County qualify for funding under the PUC program or
similar program in effect at that time, then OWNER shall deposit
said funds into the Rail Safety Improvement Trust Fund to be
administered by the COUNTY for similar improvements along the
Union Pacific Rail line in the Banning-Beaumont Pass area and/or
Eastern Coachella Valley.
The foregoing obligations of OWNER under this Section
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<PAGE>
4.7.5 are contractual in nature and are not required mitigation under the
California Environmental Quality Act.
4.7.6 Air Emissions Offset Trust Fund. Pursuant to COUNTY's
-------------------------------
request that OWNER provide funding for air emission offsets in the Coachella
Valley, OWNER will provide funding in the amount of $150,000 when waste being
transported to the Project by rail first reaches a level of 3,000 tons per day
(tpd) over a 30-day period. Such funds will be used in reducing or offsetting
increases in air emissions from the Project in the Coachella Valley area of
Riverside County. OWNER will provide additional funding in the amount of
$150,000 when waste being transported to the Project by rail first reaches a
level of 7,000 tpd over a 30-day period, 11,000 tpd over a 30-day period, and
15,000 tpd over a 30-day period. (This results in a total of $600,000.00 being
funded by OWNER for air emissions offset under this provision.) The funds
described herein ("AIR EMISSIONS OFFSET TRUST FUND") shall be paid to COUNTY or
as designated by COUNTY when such funding is due. The COUNTY, after
consultation with the Coachella Valley Association of Governments (CVAG,) will
decide how the funding provided will be used to lower air emissions in the
Coachella Valley portion of Riverside County.
The foregoing obligations of OWNER under this Section 4.7.6 are
contractual in nature and are not required mitigation under the California
Environmental Quality Act.
4.7.7 Host Community Funding. As further consideration for the
----------------------
vested development rights granted to OWNER hereunder, OWNER agrees to make a
payment of five hundred thousand dollars ($500,000) to County Service Area 51,
within ten (10) days of the commencement of construction of the Landfill.
Thereafter, and until the total of all payments to County Service Area
51 under this Agreement (including the initial $500,000 payment) reaches two
million dollars ($2 million), OWNER shall make the following payments to County
Service Area 51 each year on July 1, based on the month with the highest average
daily tonnage of Nonhazardous solid waste (averaged over the number of operating
days in each subject month) delivered to the Landfill by rail over the previous
12-month period:
a. One hundred thousand dollars ($100,000), when the highest average
daily tonnage delivered to the Landfill by rail in any of the
previous twelve months is between 3,000 tons per day (tpd) and
7,000 tpd.
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<PAGE>
b. One hundred fifty thousand dollars ($150,000), when the highest
average daily tonnage delivered to the Landfill by rail in any of
the previous twelve months is between 7,000 tpd and 11,000 tpd.
c. Two hundred thousand dollars ($200,000), when the highest average
daily tonnage delivered to the Landfill by rail in any of the
previous twelve months is greater than 11,000 tpd.
After the aggregate amount of payments made by OWNER to County Service
Area 51 reaches two million dollars ($2 million), and until termination of this
Agreement, OWNER shall pay to County Service Area 51, fifty thousand dollars
($50,000) annually, on July 1. In no event shall any payments be required, or
made, after the cessation of waste disposal at the Landfill.
The foregoing obligations of OWNER under this Section 4.7.7 are
contractual in nature and are not required mitigation under the California
Environmental Quality Act.
4.7.8 UCR Endowment. OWNER and COUNTY acknowledge the continuing
-------------
need for research in the fields of landfill design and monitoring, waste
reduction, alternatives to landfilling, mitigation of PM10 and PM2.5 impacts and
other research relevant to landfill operations and waste disposal. To address
these long term needs of COUNTY and the region, OWNER and COUNTY concur in the
need to support long term research in these and related areas. To accomplish
this, OWNER and COUNTY are committed to work with the University of California
at Riverside to establish a program to create an endowment of ultimately not
less than Ten Million Dollars ($10,000,000.00) to support this need for long
term research ("UCR ENDOWMENT").
The UCR Endowment will provide funding in perpetuity for research and for
environmental educational programs in topics including, but not limited to:
a. Landfill liner system performance;
b. Groundwater modeling and monitoring;
c. Landfill gas and leachate generation;
d. Alternatives to landfill disposal, including conversion of trash
and landfill gas to energy;
e. Alternative transportation technologies and other useable
products;
f. Assistance of new environmental businesses and technologies in
the COUNTY; and
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<PAGE>
g. Assistance for small businesses in environmental compliance.
The vision of the research and educational program is to:
a. Protect the environment by developing technologies for improved
landfill operations and monitoring, and by focusing on the
attainment of ozone and particulate air quality standards in the
COUNTY;
b. Develop cleaner transportation systems for vehicles operating at
landfills;
c. Develop technologies that derive useful energy or by-products
from refuse; and
d. Improve the economic climate in the COUNTY by helping businesses
with environmental compliance and supporting the establishment of
new environmental businesses and technologies in the region.
OWNER's and COUNTY's obligations under this Section 4.7.8 shall be limited
to the negotiation in good faith with each other and with UCR to assist in
securing funding for the UCR Endowment in an amount not to exceed Ten Million
Dollars ($10,000,000.00) from potential sources such as California Environmental
Protection Agency, U.S. Environmental Protection Agency, California Air
Resources Board, South Coast Air Quality Management District, California
Integrated Waste Management Board, the Eagle Mountain Environmental Mitigation
Trust, and other businesses, organizations and individuals.
The foregoing obligations of OWNER and COUNTY under this Section 4.7.8 are
contractual in nature and are not required mitigation under the California
Environmental Quality Act.
4.7.9 Waiver of Credit for Consultant Services Paid by MRC. MRC
----------------------------------------------------
has advanced approximately $80,000 to DISTRICT for amounts actually paid by
DISTRICT to employ outside consultants, pursuant to an agreement between MRC,
COUNTY and DISTRICT approved by the DISTRICT's Board of Directors and COUNTY's
Board of Supervisors on November 14, 1995. MRC agrees to waive its rights under
said agreement to obtain a credit for such payments, and releases COUNTY and
DISTRICT from their obligations to provide any such credits.
4.7.10 Entire Economic Benefits. It is the intent of the parties
------------------------
that this Agreement specifically set forth all fees, exactions, taxes and other
payments to be imposed on OWNER by or paid by OWNER to COUNTY, and that no new
or additional fees, taxes,
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exactions, donations, or other payments be imposed by or paid to COUNTY except
as specifically provided for in this Agreement.
OWNER shall pay all ad valorem property taxes and assessments
(including any increases in same) in accordance with State law, and all other
taxes that may in the future be imposed on a statewide level ("PROPERTY AND
OTHER STATEWIDE TAXES").
OWNER shall also pay, to the extent permitted by applicable law, any
taxes or fees ("UNIFORM BUSINESS FEES") that are imposed by COUNTY on a uniform,
County-wide basis on all businesses, which are not specific to the Project or to
landfills and which are not based on acreage, gross revenue, tonnage of any
waste deposited, or other landfill operational criteria. "Uniform Business
Fees" shall include, by way of example, sales taxes or utility taxes that are
imposed on all businesses County-wide.
OWNER shall also pay all other payments, fees and exactions required
under the other terms and provisions of this Agreement, specifically: the
Purchase Price payments (Exhibit "F"); application and processing fees and
charges ((S)(S)3.7, 3.8.1(a)); development exactions for Subsequent Development
Approvals subject to the requirements of (S)3.8.1(d); condemnation costs
((S)3.10); LEA/Department of Environmental Health inspection and monitoring
costs ((S)3.12.2(g)); financial benefits to COUNTY under Section 4.6; payments
to be made under Sections 4.7.1 through 4.7.9 inclusive; and amounts to be paid
by OWNER pursuant to Section 9.9 and all subsections thereunder. It is
acknowledged by the parties that none of the fees, exactions or other payments
payable by OWNER pursuant to this Agreement are taxes.
Other than as described in the foregoing paragraphs of this Section
4.7.10, no other payments, taxes, fees, exactions or property donations shall be
required by COUNTY in connection with the Property or the Project during the
term of this Agreement. To the extent COUNTY, while this Agreement is in
effect, imposes any new or additional taxes, fees, exactions, donations, or
payments in connection with the Property or the Project other than as described
in the foregoing paragraphs of this Section 4.7.10 and OWNER makes such
payments, then OWNER shall be credited for such amounts against the payments
OWNER owes to COUNTY pursuant to the terms of the Purchase and Sale Agreement.
5. FINANCING OF PUBLIC IMPROVEMENTS.
--------------------------------
If deemed appropriate, COUNTY and OWNER will cooperate in the formation of
any special assessment district, community facilities district or alternate
financing mechanism to pay for the
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construction and/or maintenance and operation of public infrastructure
facilities required as part of the Development Plan. COUNTY also agrees that, to
the extent any such district or other financing entity is formed and sells bonds
in order to finance such reimbursements, OWNER may be reimbursed out of the
proceeds of said district to the extent that OWNER spends funds or dedicates
land for the establishment of public facilities. Notwithstanding the foregoing,
it is acknowledged and agreed by the parties that nothing contained in this
Agreement shall be construed as requiring COUNTY or the COUNTY Board of
Supervisors to form any such district or to issue and sell bonds nor to
reimburse OWNER out of the proceeds of COUNTY's sale of property to OWNER in
accordance with the Purchase and Sale Agreement.
6. REVIEW FOR COMPLIANCE.
---------------------
6.1 Periodic Review. The COUNTY Chief Executive Officer shall review this
---------------
Agreement annually, on or before the anniversary of the Effective Date, in order
to ascertain the good faith compliance by OWNER with the terms of the Agreement.
OWNER shall submit an Annual Monitoring Report, in a form acceptable to the
COUNTY Chief Executive Officer, within 30 days after written notice from the
COUNTY Chief Executive Officer. COUNTY hereby waives any annual or special
review administration fee.
6.2 Special Review. The Board of Supervisors may order a special review
--------------
of compliance with this Agreement at any time. OWNER shall be given written
notice prior to the commencement of any special review. The COUNTY Chief
Executive Officer, or other officer as may be directed by the Board, shall
conduct such special review.
6.3 Procedure.
---------
(a) During either a periodic review or a special review, OWNER shall
be required to demonstrate good faith compliance with the terms of this
Agreement. Failure of OWNER, subject to matters beyond its reasonable
control:
(1) to submit its application for approval of the Project to the
Colorado River Water Quality Control Board within ninety (90) days
after Certification of EIR No. 397; or,
(2) to submit its application for approval of the Project to the
South Coast Air Quality Management District within two (2) months
after Certification of EIR No. 397; or,
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(3) to submit its application for approval of the Project to the
Local Enforcement Agency within six (6) months after Certification of
EIR No. 397,
shall be considered as evidence that OWNER is not complying in good faith
with this Agreement.
(b) Upon completion of a periodic review or a special review, the
COUNTY Chief Executive Officer shall submit a report to the Board of
Supervisors setting forth the evidence concerning good faith compliance by
OWNER with the terms of this Agreement and his recommended finding on that
issue.
(c) If, after giving OWNER a reasonable opportunity to review and
respond to the COUNTY Chief Executive's report, the Board finds on the
basis of substantial evidence in the record before it that OWNER has
complied in good faith with the terms and conditions of this Agreement in
all material respects, the review shall be concluded.
(d) If, after giving OWNER a reasonable opportunity to review and
respond to the COUNTY Chief Executive's report, the Board makes a
preliminary finding on the basis of substantial evidence in the record
before it that OWNER has not complied in good faith with the terms and
conditions of this Agreement in all material respects, the Board may
proceed with modification or termination of this Agreement or other action
as provided in Section 6.4 and Section 6.6. Written notice as provided
under Section 8.4 of this Agreement shall be given to OWNER prior to or
concurrent with, proceedings under Section 6.4 and Section 6.6.
6.4 Proceedings Upon Modification or Termination. If the Board makes a
--------------------------------------------
preliminary finding of non-compliance in accordance with Section 6.3, then
COUNTY may proceed to consider the modification or termination of this Agreement
or other action, which shall be the subject of a hearing before the Board.
COUNTY shall give written notice to OWNER of its preliminary findings, a summary
of the substantial evidence in the current record which COUNTY asserts supports
its preliminary findings, and the scheduled hearing date. The notice shall be
given at least sixty (60) calendar days prior to the scheduled hearing and shall
contain:
(a) The time, date and place of the hearing;
(b) A statement as to whether COUNTY proposes to terminate or to
modify the Agreement or take any
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other action, together with a detailed description of any
proposed modifications or other proposed actions; and,
(c) Such other information as is reasonably necessary to inform OWNER
of the nature of the proceeding and give OWNER a reasonable
opportunity to respond and be heard.
6.5 Failure to Make Payment. If at any time, OWNER fails to make a
------------------------
payment as required by the Purchase and Sale Agreement, COUNTY shall give
written notice to OWNER of its intent to terminate, modify or take any other
action with regard to this Agreement. The notice shall comply with the
provisions of Section 6.4.
6.6 Hearing. At the time and place set for the hearing as noticed in
-------
accordance with Section 6.4, OWNER shall be given an opportunity to be heard.
OWNER shall be required to demonstrate good faith compliance with the terms and
conditions of this Agreement in all material respects. If the Board of
Supervisors finds, based upon substantial evidence in the record before it, that
OWNER has not complied in good faith with the terms and conditions of this
Agreement in all material respects, the Board shall require OWNER to take
specific actions, within one hundred and twenty (120) days of the Board's
decision, to cure such non-compliance. If OWNER fails to cure the non-
compliance within 120 days, the COUNTY may terminate or modify this Agreement
and take such other actions or impose such conditions as are reasonably
necessary to protect the interests of the COUNTY; provided, however, if the
nature of the non-compliance is such that it cannot reasonably be cured within
120 days and OWNER is proceeding in good faith and with due diligence to
prosecute said cure to completion, OWNER shall not be considered to be in
default. The decision of the Board of Supervisors to terminate or modify this
Agreement or take any other action shall be final, subject only to judicial
review pursuant to Section 1094.5 or similar provision of the Code of Civil
Procedure.
6.7 Certificate of Agreement Compliance. If, after a Periodic or Special
-----------------------------------
Review or upon any review that may be initiated at the request of OWNER, OWNER
is found to be in compliance with this Agreement in all material respects, or
has come into compliance with this Agreement by taking curative action within
the time specified, COUNTY shall, within ten (10) days of request by OWNER,
issue a Certificate of Agreement Compliance ("Certificate") to OWNER, in the
form of Exhibit "I" attached hereto and incorporated herein by this reference,
stating that after the most
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recent Periodic or Special Review and based upon the information known or made
known to the Board of Supervisors that (1) this Agreement remains in full force
and effect, and (2) OWNER is not in default. The Certificate shall be in
recordable form, shall contain information necessary to communicate constructive
record notice of the finding of compliance, shall state whether the Certificate
is issued after a Periodic or Special Review and shall state the anticipated
date of commencement of the next Periodic Review. OWNER may record the
Certificate with the County Recorder or file the Certificate with any other
public agency or governmental authority.
Whether or not the Certificate is relied upon by assignees or other
transferees or OWNER, COUNTY shall not be bound by a Certificate if a default
existed at the time of the Periodic or Special Review, but was concealed from or
otherwise not known to the COUNTY Chief Executive Officer or Board of
Supervisors.
7. INCORPORATION AND ANNEXATION.
----------------------------
7.1 Intent. If all or any portion of the Property is annexed to or
------
otherwise becomes a part of a city or another county, it is the intent of the
parties that this Agreement and its term shall survive and be binding upon such
other jurisdiction.
7.2 Incorporation. If at any time during the term of this Agreement, a
-------------
city is incorporated comprising all or any portion of the Property, the validity
and effect of this Agreement shall be governed by Section 65865.3 (or similar
provision) of the Government Code.
7.3 Incorporation and Annexation. OWNER and COUNTY shall oppose, in
----------------------------
accordance with the procedures provided by law, any incorporation of a city
comprising all or any portion of the Property, any annexation to any city of all
or any portion of the Property, and any formation of another county whose
territory includes all or any portion of the Property unless both OWNER and
COUNTY give written consent to such incorporation, annexation or formation.
8. DEFAULT AND REMEDIES.
--------------------
8.1. Remedies in General. It is acknowledged by the parties that COUNTY
--------------------
would not have entered into this Agreement if there were not some limitation on
COUNTY'S payment of damages that may be awarded to OWNER in a judgment for
damages under this Agreement, or with respect to this Agreement or the
application thereof.
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In general, each of the parties hereto may pursue any remedy at law or
equity available for the breach of any provision of this Agreement, except that
should COUNTY be liable in damages to OWNER, then OWNER covenants that
collection of said damages shall be limited as follows:
(a) In the year the judgment is final against COUNTY, OWNER shall not
collect more than OWNER actually paid COUNTY pursuant to the
Purchase and Sale Agreement (net of the amounts paid by COUNTY
from the Purchase Price proceeds into the Environmental
Mitigation Trust) during the immediately preceding calendar year;
(b) If the amount of the judgment exceeds the amount collected
pursuant to subparagraph (a) and if the Project remains in
operation, the balance of the judgment (including interest) shall
be collected at the rate of 50% of the amount actually paid by
OWNER to COUNTY pursuant to the Purchase and Sale Agreement (net
of the amounts paid by COUNTY from the Purchase Price proceeds
into the Environmental Mitigation Trust) during the calendar year
following finality of the judgment and every succeeding calendar
year until the entire judgment is paid.
8.2 Specific Performance. The parties acknowledge that money damages
---------------------
and remedies at law generally are inadequate, and specific performance and other
non-monetary relief are particularly appropriate and preferred remedies for the
enforcement of this Agreement and shall be available to all parties.
8.3 Release. Except for causes of action based on breach of the terms
-------
of this Agreement and causes of action for non-damage remedies, including the
remedies of specific performance (see Section 8.2) and judicial review (see
Section 6.6), OWNER, for itself, its successors and assignees, hereby releases
the COUNTY, its officers, agents and employees from any and all claims, demands,
actions, or suits of any kind or nature arising out of any liability, known or
unknown, present or future, including, but not limited to, any claim or
liability, based or asserted, pursuant to Article I, Section 19 of the
California Constitution, the Fifth Amendment of the United States Constitution,
or any other law or ordinance which seeks to impose any other liability or
damage, whatsoever, upon the COUNTY because it entered into this Agreement or
because of the terms of this Agreement.
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<PAGE>
8.4 Termination or Modification of Agreement for Default of
-------------------------------------------------------
OWNER. Subject to and upon compliance with the provisions contained in Section
- -----
6 herein, COUNTY may terminate or modify this Agreement or take other action for
any failure of OWNER to perform any material duty or obligation of OWNER under
this Agreement, or to comply in good faith with the terms of this Agreement in
all material respects.
8.5 Termination of Agreement for Default of COUNTY. OWNER
----------------------------------------------
may terminate this Agreement only in the event of a default by
COUNTY in the performance of a material term of this Agreement and only after
providing written notice to COUNTY of default, setting forth the nature of the
default and the actions, if any, required by COUNTY to cure such default and,
where the default can be cured, COUNTY has failed to take such actions and cure
such default within 120 days after the effective date of such notice or, in the
event that such default cannot be cured within such 120-day period but can be
cured within a longer time, has failed to commence the actions necessary to cure
such default within such 120-day period and to diligently proceed to complete
such actions and cure such default.
9. THIRD PARTY LITIGATION, ENVIRONMENTAL IMPAIRMENT, INDEMNITY AND FINANCIAL
-------------------------------------------------------------------------
ASSURANCES.
----------
9.1 General Plan Litigation. COUNTY has determined that this Agreement is
-----------------------
consistent with its Comprehensive General Plan, herein called General Plan, and
that the General Plan meets all requirements of law. OWNER has reviewed the
General Plan and concurs with COUNTY's determination. The parties acknowledge
that:
(a) Litigation is now pending challenging the legality, validity and
adequacy of certain provisions of the General Plan; and,
(b) In the future there may be other similar challenges to the
General Plan; and,
(c) If successful, such challenges could delay or prevent the
performance of this Agreement and the development of the Property.
COUNTY shall have no liability in damages under this Agreement for any
failure of COUNTY to perform under this Agreement or the inability of OWNER to
develop the Property as contemplated by the Development Plan of this Agreement
as the result of a judicial determination that on the Effective Date, or at any
time thereafter, the General Plan, or portions thereof, are invalid or
inadequate or not in compliance with law.
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9.2 Third Party Litigation. OWNER shall defend, at its expense (including
----------------------
COUNTY's reasonable attorneys' fees and attorneys' fees awarded by final
judgment of a court of competent jurisdiction to a prevailing party), indemnify,
and hold harmless COUNTY, its agents, officers and employees from any claim,
action or proceeding against COUNTY, its agents, officers, or employees to
attack, set aside, void, or annul the approval of this Agreement, the approval
of any permit granted pursuant to this Agreement, any challenge to Comprehensive
General Plan Amendment No. 402, Specific Plan No. 305, Change of Zone Case No.
6249, Environmental Impact Report No. 397, Revised Permit No. 158 to Reclamation
Plan No. 107 and/or any other Existing Development Approval, Subsequent
Development Approval, Site Specific Plot Plan (Section 3.5 above), Plot Plan
(Section 3.6 above) or any other action by COUNTY in connection with the
Project, to the extent that such claim, action or proceeding does not arise from
COUNTY's default under this Agreement or COUNTY's violation of applicable law.
COUNTY shall promptly notify OWNER of any such claim, action or proceeding, and
COUNTY shall assist in the defense of any actions where COUNTY is named as a
party and in which OWNER is obligated hereunder to defend COUNTY, including
appeals therefrom. If COUNTY fails to promptly notify OWNER of any such claim,
action or proceeding, or if COUNTY fails to assist in the defense, OWNER shall
not thereafter be responsible to defend, indemnify, or hold harmless COUNTY.
Should OWNER fail to perform or commence performing any of the
obligations or to take any action set forth above in this Section 9.2 within
sixty (60) days after OWNER becomes aware of such obligation, then COUNTY may
retain any legal counsel, consultant, contractor or other third party as may be
reasonably necessary to perform such obligation of OWNER. OWNER shall reimburse
COUNTY for the reasonable costs of such third party within thirty (30) days of
the date such costs are submitted by COUNTY to OWNER for payment. Should COUNTY
suffer any cost, damage or expense by reason of OWNER's failure to take action
as required above in this Section 9.2, OWNER shall reimburse COUNTY for the
amounts within thirty (30) days of the date that such costs, damages or expenses
are submitted by COUNTY to OWNER for payment.
9.3 OWNER Indemnity. OWNER shall indemnify and hold COUNTY, its officers,
---------------
agents, employees and independent contractors free and harmless from any
liability whatsoever, based or asserted upon any act or omission of OWNER, its
officers, agents, employees, subcontractors and independent contractors, for
property damage, bodily injury, or death (OWNER's employees included) or any
other element of damage of any kind or nature, relating to or in any way
connected with or arising from the activities contemplated
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<PAGE>
hereunder, including, but not limited to, the study, design, engineering,
construction, completion, failure and conveyance of the public improvements,
save and except claims for damages to the extent arising from the sole active
negligence or sole willful misconduct of COUNTY. OWNER shall defend, at its
expense, including attorneys' fees, COUNTY, its officers, agents, employees and
independent contractors in any legal action based upon such alleged acts or
omissions.
Should OWNER fail to perform or commence performing any of the
obligations or to take any action set forth above in this Section 9.3 within
sixty (60) days after OWNER becomes aware of such obligation, then COUNTY may
retain any legal counsel, consultant, contractor or other third party as may be
reasonably necessary to perform such obligation of OWNER. OWNER shall reimburse
COUNTY for the reasonable costs of such third party within thirty (30) days of
the date such costs are submitted by COUNTY to OWNER for payment. Should COUNTY
suffer any cost, damage or expense by reason of OWNER's failure to take action
as required above in this Section 9.3, OWNER shall reimburse COUNTY for the
amounts within thirty (30) days of the date that such costs, damages or expenses
are submitted by COUNTY to OWNER for payment.
9.4 COUNTY Indemnity. COUNTY shall indemnify and hold OWNER, its
----------------
officers, agents, employees and independent contractors free and harmless from
any liability based or asserted upon acts or omissions of COUNTY, its officers,
agents, employees, subcontractors and independent contractors, for property
damage, bodily injury, or death or any other element of damage of any kind or
nature arising from the sole active negligence or sole willful misconduct of
COUNTY. COUNTY shall defend, at its expense, including attorneys' fees, OWNER,
its officers, agents, employees and independent contractors in any legal action
based upon such alleged acts or omissions. If OWNER fails to promptly notify
COUNTY of any such claim, action or proceeding, or if OWNER fails to cooperate
in the defense, COUNTY shall not thereafter be responsible to defend, indemnify
or hold harmless OWNER.
OWNER reserves the right to approve the attorney(s) which COUNTY selects, hires
or otherwise engages to defend OWNER hereunder, which approval shall not be
unreasonably withheld. OWNER reserves the right, at its sole cost and expense,
to employ counsel of its own choosing to defend or assist in the defense of
OWNER in addition to the attorney(s) employed by COUNTY to defend OWNER.
9.5 Additional OWNER Indemnity. Notwithstanding any other provision of
--------------------------
this Agreement, OWNER shall indemnify and hold COUNTY, its officers, agents, and
employees free and harmless from any
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liability, based or asserted upon any act or omission of OWNER, its officers,
agents, employees, subcontractors, predecessors in interest (excluding COUNTY
predecessor in interest as it relates to the air space conveyed in accordance
with the Assignment of Leasehold Interest), successors, assigns and independent
contractors for any violation of any federal, state or local law, ordinance or
regulation relating to industrial hygiene or to environmental conditions on,
under or about the Property, including, but not limited to, remediation of soil
and groundwater conditions, and including COUNTY disposal of permitted waste at
the Landfill, and OWNER shall defend, at its expense, including attorneys' fees,
COUNTY, its officers, agents and employees in any action based or asserted upon
any such alleged act or omission. OWNER's indemnification of COUNTY hereunder is
also intended to include MRC's obligations for Landfill closure and post-closure
care and maintenance as required by Federal Subtitle D regulations at 40 CFR
Section 258.61 and California Code Regulations at Title 27, Section 21180 or
similar regulatory or statutory requirements.
Should OWNER fail to perform or commence performing any of the
obligations or to take any action set forth above in this Section 9.5 within
sixty (60) days after OWNER becomes aware of such obligation, then COUNTY may
retain any legal counsel, consultant, contractor or other third party as may be
reasonably necessary to perform such obligation of OWNER. OWNER shall reimburse
COUNTY for the reasonable costs of such third party within thirty (30) days of
the date such costs are submitted by COUNTY to OWNER for payment. Should COUNTY
suffer any cost, damage or expense by reason of OWNER's failure to take action
as required above in this Section 9.5, OWNER shall reimburse COUNTY for the
amounts within thirty (30) days of the date that such costs, damages or expenses
are submitted by COUNTY to OWNER for payment.
9.6 Reservation of Rights. With respect to Sections 9.2, 9.3 and 9.5
---------------------
herein, COUNTY reserves the right to approve the attorney(s) which OWNER
selects, hires or otherwise engages to defend COUNTY hereunder, which approval
shall not be unreasonably withheld. COUNTY reserves the right, at its sole cost
and expense, to employ counsel of its own choosing to defend or assist in the
defense of COUNTY in addition to the attorney(s) employed by OWNER to defend
COUNTY.
9.7 Environmental Impairment and Damage to Natural Resources. OWNER shall
--------------------------------------------------------
promptly comply with all final judgments and orders issued by a court of
competent jurisdiction as well as all orders, rules or regulations issued by any
county, state or federal regulatory agency having jurisdiction over the Project
which
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<PAGE>
require OWNER or COUNTY to remediate any environmental impairment or damage to
any natural resource or to pay monetary damages to any third party as a result
of any environmental impairment or damage to natural resources arising out of
the Project.
Should OWNER fail to perform or commence performing any of the
obligations or to take any action set forth above in this Section 9.7 within
sixty (60) days after OWNER becomes aware of such obligation, then COUNTY may
retain any legal counsel, consultant, contractor or other third party as may be
reasonably necessary to perform such obligation of OWNER. OWNER shall reimburse
COUNTY for the reasonable costs of such third party within thirty (30) days of
the date such costs are submitted by COUNTY to OWNER for payment. Should COUNTY
suffer any cost, damage or expense by reason of OWNER's failure to take action
as required above in this Section 9.7, OWNER shall reimburse COUNTY for the
amounts within thirty (30) days of the date that such costs, damages or expenses
are submitted by COUNTY to OWNER for payment.
9.8 Emergencies. In the event the Board of Supervisors of the COUNTY
-----------
determines by Resolution and in good faith, that an emergency exists:
(a) which, unless responded to immediately, would likely result in
serious and immediate adverse impacts upon the public health,
safety or welfare; and,
(b) which is a direct result of an accident arising out of or
connected with any aspect of the Project, including but not
limited to operations at the Project and transportation of waste
to the Project; and,
(c) which appears, in the good faith judgment of the Board of
Supervisors, to be the legal responsibility of the OWNER;
it may order OWNER to respond immediately to such emergency to commence and
complete such cleanup, remediation or such other action as the Board of
Supervisors determines necessary to reduce or eliminate the immediate threat to
the public health, safety, or welfare. In the event OWNER refuses or neglects
to immediately respond to the emergency, the COUNTY may undertake the cleanup,
remediation or other response and draw upon the financial assurances required to
be provided in and pursuant to the terms of Section 9.9 hereof to cover the cost
of such cleanup, remediation or other response. In the event it is later
determined, as a result of any lawsuit, negotiated settlement, arbitration or
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otherwise, that OWNER was not, but for the terms of this Agreement, legally
responsible to pay for the cleanup, remediation or other response, the COUNTY
shall immediately reimburse OWNER for all amounts drawn from the financial
assurances for which it is determined as a result of such negotiated settlement,
arbitration, lawsuit or otherwise not to have been legally responsible to pay
but for the terms of this Agreement.
Should OWNER fail to perform or commence performing any of the
obligations or to take any action set forth above in this Section 9.8 within
sixty (60) days after OWNER becomes aware of such obligation, then COUNTY may
retain any legal counsel, consultant, contractor or other third party as may be
reasonably necessary to perform such obligation of OWNER. OWNER shall reimburse
COUNTY for the reasonable costs of such third party within thirty (30) days of
the date such costs are submitted by COUNTY to OWNER for payment. Should COUNTY
suffer any cost, damage or expense by reason of OWNER's failure to take action
as required above in this Section 9.8, OWNER shall reimburse COUNTY for the
amounts within thirty (30) days of the date that such costs, damages or expenses
are submitted by COUNTY to OWNER for payment.
9.9 Financial Assurances.
--------------------
9.9.1 Letter of Credit.
----------------
(a) No later than five (5) business days after OWNER's receipt of all
the land use approvals from the COUNTY necessary for the
construction and operation of the Project, to secure OWNER's
obligations pursuant to Sections 9.2, 9.3 and 9.5 hereof, OWNER
shall deposit with COUNTY a letter of credit ("Letter of Credit")
in the amount of Five Hundred Thousand Dollars ($500,000.00).
(b) No later than the date of the execution of this Agreement by both
parties, to secure OWNER's obligations pursuant to Sections 9.2,
9.3 and 9.5 hereof, OWNER shall increase the amount of the Letter
of Credit to One Million Dollars ($1,000,000.00), or provide a
new letter of credit in the amount of One Million Dollars
($1,000,000.00), or deposit an additional letter of credit (or
cash equivalent) in the amount of Five Hundred Thousand Dollars
($500,000.00), so that the aggregate amount of the Letter(s) of
Credit equals One Million Dollars ($1,000,000.00).
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(c) Commencing on the date of Start Up of Operations of the Project
and continuing until terminated as provided in this Agreement, to
secure OWNER's obligations pursuant to Sections 9.2, 9.3, 9.5,
9.7 and 9.8 hereof, OWNER shall increase the amount of the Letter
of Credit to Two Million Dollars ($2,000,000.00), or provide a
new Letter of Credit in the amount of Two Million Dollars
($2,000,000.00), or deposit an additional Letter of Credit of an
additional One Million Dollars ($1,000,000.00), so that the
aggregate amount of the Letter(s) of Credit equals Two Million
Dollars ($2,000,000.00).
(d) The Letter of Credit shall be irrevocable and shall be in
substantially the form as Exhibit "J" attached hereto and
incorporated herein by this reference. The Letter of Credit
shall be payable in Riverside, California, or such other location
as is specified in writing by COUNTY. The Letter of Credit shall
allow for multiple draws. The Letter of Credit shall be issued
by a financial institution with a Standard & Poor's or Moody's
long-term senior unsecured debt rating ("credit rating") of B+ or
better. In the event the credit rating of the issuing financial
institution falls below B+, then OWNER shall obtain a replacement
letter of credit satisfying the requirements of this section
within ninety (90) days of being notified of the credit rating
change. The Letter of Credit shall not require COUNTY to state
or certify to the issuer that COUNTY has made any demand upon, or
taken any action against, OWNER, as a condition to draw down on
the Letter of Credit; provided, however, COUNTY shall comply with
Section 9.9.1(e) below.
Prior or subsequent to the issuance of the Letter of Credit,
COUNTY may require an opinion from the issuer's legal counsel
confirming that the Letter of Credit is an authorized and binding
obligation of the issuer.
At any time, and from time to time, OWNER may replace the Letter
of Credit, change the issuing institution or modify the terms of
the Letter of Credit, but only with the advance written consent
of the COUNTY, which shall not be unreasonably
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withheld or delayed. Subject to the terms of Section 9.9.7
(Alternative or Substitute Financial Assurances), in the event
OWNER desires to replace or modify the Letter of Credit or change
the issuing institution, then OWNER shall first or concurrently
obtain such replacement or new Letter of Credit in substantially
the form of Exhibit "J" or as otherwise approved by the advance
written consent of COUNTY.
(e) COUNTY shall have the right to draw upon the Letter of Credit for
any unpaid amount secured by the Letter of Credit (i) one hundred
twenty (120) days after the date that OWNER is required to pay
any such amount under this Agreement or (ii) sixty (60) days
after written demand by COUNTY upon OWNER specifying the nature
and amount of the obligation(s) due, whichever is earlier, except
for demand(s) arising out of those obligations described in
Section 9.8 of this Agreement ("Emergencies"), in which case five
(5) days written demand shall be provided. COUNTY's right to
draw upon the Letter of Credit shall be subject to Section 9.9.8
below (Wrongful or Improper Claim or Draw by COUNTY).
9.9.2 Environmental Liability Insurance.
---------------------------------
(a) No later than the date of the execution of this Agreement by both
parties, OWNER shall deposit with the COUNTY a certificate of
insurance evidencing the issuance of an environmental liability
insurance policy ("Environmental Liability Insurance") with
coverage in an amount not less than Five Million Dollars
($5,000,000.00), naming COUNTY as an additional insured and
containing emergency response and payment procedures that are
satisfactory to COUNTY, to secure OWNER's obligations pursuant to
Sections 9.3, 9.5, 9.7 and 9.8 hereof.
(b) Commencing on the date of Start Up of Operations and continuing
until terminated as provided in this Agreement, to secure OWNER's
obligations pursuant to Sections 9.3, 9.5, 9.7 and 9.8 hereof,
OWNER shall increase the amount of the Environmental Liability
Insurance coverage to Ten Million Dollars ($10,000,000.00).
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(c) The Environmental Liability Insurance shall be issued by an
insurance company with a Standard & Poor's, Moody's or AM Best
rating of B+ or better. The Environmental Liability Insurance
policy shall cover, without limitation, third party claims for
environmental resource damages arising from the transportation or
deposit of Nonhazardous municipal solid waste to or at the
Landfill.
(d) Prior to making any claim on the Environmental Liability
Insurance, the COUNTY shall first provide at least sixty (60)
days written demand on the OWNER, except for demand(s) arising
out of those obligations described in Section 9.8 of this
Agreement ("Emergencies"), in which case five (5) days written
demand and notice shall be provided. Each demand and notice
shall specify the nature and amount of the obligation(s) due.
Following the expiration of the demand and notice periods
described above, the COUNTY may proceed to present a claim on the
Environmental Liability Insurance to the extent that the
obligation(s) identified in the demand and notice have not been
satisfied by the OWNER.
COUNTY shall promptly provide OWNER with notice and a copy of any
claim, document or correspondence submitted to or provided by the
Environmental Liability Insurance carrier or it agent(s). COUNTY
and OWNER shall cooperate in good faith in the submission and
processing of any claim made on the Environmental Liability
Insurance.
COUNTY's right to make a claim upon the Environmental Liability
Insurance shall be subject to Section 9.9.8 below (Wrongful or
Improper Claim or Draw by COUNTY).
(e) At any time, and from time to time, OWNER may change the
Environmental Liability Insurance carrier, but only with the
advance written consent of the COUNTY, which shall not be
unreasonably withheld or delayed.
(f) If at any time during the term of this Agreement the requisite
Environmental Liability Insurance coverage is not available or is
not in place, then
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the amount of the Corporate Guarantee provided pursuant to
Section 9.9.4 below shall be increased accordingly, or other
substitute financial assurance shall be provided in accordance
with Section 9.9.7 below, or other financial assurance acceptable
to COUNTY shall be provided.
9.9.3 Comprehensive General Liability Insurance.
-----------------------------------------
(a) No later than the date of the execution of this Agreement by both
parties, and continuing throughout the term of this Agreement,
OWNER shall deposit with the COUNTY a certificate of insurance
evidencing the issuance of a comprehensive general liability
insurance policy ("General Liability Insurance") with coverage in
an amount not less than Ten Million Dollars ($10,000,000.00),
naming COUNTY as an additional insured and containing emergency
response and payment procedures that are satisfactory to COUNTY,
to secure OWNER's obligations pursuant to Sections 9.3, 9.5 and
9.8 hereof.
(b) The General Liability Insurance shall be issued by an insurance
company with a Standard & Poor's, Moody's or AM Best rating of B+
or better. The General Liability Insurance policy shall be
reasonably satisfactory to COUNTY.
(c) Prior to making any claim on the General Liability Insurance, the
COUNTY shall first provide at least sixty (60) days written
demand on the OWNER, except for demand(s) arising out of those
obligations described in Section 9.8 of this Agreement
("Emergencies"), in which case five (5) days written demand and
notice shall be provided. Each demand and notice shall specify
the nature and amount of the obligation(s) due. Following the
expiration of the demand and notice periods described above, the
COUNTY may proceed to present a claim on the General Liability
Insurance to the extent that the obligation(s) identified in the
demand and notice have not been satisfied by the OWNER.
COUNTY shall promptly provide OWNER with notice and a copy of any
claim, document or correspondence submitted to or provided by the
General Liability
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Insurance carrier or it agent(s). COUNTY and OWNER shall
cooperate in good faith in the submission and processing of any
claim made on the General Liability Insurance.
COUNTY's right to make a claim upon the General Liability
Insurance shall be subject to Section 9.9.8 below (Wrongful or
Improper Claim or Draw by COUNTY).
(d) At any time, and from time to time, OWNER may change the General
Liability Insurance carrier, but only with the advance written
consent of the COUNTY, which shall not be unreasonably withheld
or delayed.
9.9.4 Corporate Guarantee.
-------------------
(a) Commencing upon the date of Start Up of Operations OWNER shall
cause to be provided to COUNTY a guarantee agreement similar in
form to Exhibit "K" attached hereto and incorporated herein by
this reference ("Corporate Guarantee"), which absolutely and
unconditionally guarantees the full and complete payment of any
amounts payable by OWNER under Sections 9.2, 9.3, 9.5, 9.7 or 9.8
up to the maximum amount of Ten Million Dollars ($10,000,000.00)
per single guaranteed event thereunder. The Corporate Guarantee
shall be promptly reinstated to the full Ten Million Dollars
($10,000,000.00) after any payment in accordance with this
Section or the Corporate Guarantee and shall remain in effect
until and except to the extent it is terminated in whole or in
part as provided in or pursuant to Sections 9.9.5(c) or 9.9.7
below or the Guarantee Agreement, or until the COUNTY gives its
written consent to such termination.
(b) The Corporate Guarantee shall be executed by a party or entity
other than OWNER which has a Standard & Poor's or Moody's credit
rating of B+ or better or a tangible net worth equal to at least
One Hundred Million Dollars ($100,000,000.00). For purposes of
this requirement, the guarantor's "tangible net worth" shall be
calculated net of (i.e., excluding) the amount of the guarantor's
investment in OWNER or in the Project and net of the amount of
any
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other guarantee executed by the guarantor for OWNER's
financial obligations relating to the Project (i.e., other than
the guarantee required by this Section 9.9.4). At all times
during the term of the Corporate Guarantee, and regardless of
whether the amount of the Corporate Guarantee is reduced from
time to time pursuant to Sections 9.9.5(c), 9.9.7, the Guarantee
Agreement, or otherwise with the COUNTY's written consent, at
that time the guarantor must have either (i) a credit rating of
B+ or better, OR (ii) a tangible net worth equal to at least One
Hundred Million Dollars ($100,000,000.00). Accordingly, if at
any time during the term of the Corporate Guarantee, both (i) the
guarantor's credit rating is below B+ (or the guarantor is
unrated) AND (ii) the guarantor's tangible net worth is less than
$100,000,000.00, then within ninety (90) days of becoming aware
of such circumstance OWNER shall provide for adequate substitute
or additional financial assurance(s) pursuant to Section 9.9.7
below (Alternative or Substitute Financial Assurances) or as
otherwise agreed to in writing by COUNTY.
The Corporate Guarantee may be replaced in whole or in part with
adequate substitute financial assurance(s) pursuant to the
requirements of Section 9.9.7. If a portion of the Corporate
Guarantee is replaced by a substitute financial assurance
pursuant to Section 9.9.7, thus reducing the amount of the
Corporate Guarantee accordingly, or the amount of the Corporate
Guarantee is reduced pursuant to Section 9.9.5(c), then the
Corporate Guarantee shall remain in full force and effect as to
the remaining amount of the Guarantee (i.e., that portion not
replaced or reduced).
(c) The Corporate Guarantee shall be accompanied by a certified
resolution of the guarantor's board of directors (or other
governing body if the guarantor is not a corporation)
authorizing the guarantor to enter into and execute the
Guarantee Agreement. COUNTY may also require an opinion from
the guarantor's legal counsel confirming that the Corporate
Guarantee is an authorized and binding obligation of the
guarantor. Within one hundred twenty (120) days after the
end of each fiscal year
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of the guarantor during the term of the Corporate Guarantee, the
guarantor shall provide to COUNTY certification from a nationally
recognized public accounting firm that the guarantor has the
required level of tangible net worth (or required credit rating).
(d) Prior to making any claim on the Corporate Guarantee, the
COUNTY shall first provide at least sixty (60) days written
demand on the OWNER, except for demand(s) arising out of
those obligations described in Section 9.8 of this Agreement
("Emergencies"), in which case five (5) days written demand
and notice shall be provided. Each demand and notice shall
specify the nature and amount of the obligation(s) due.
Following the expiration of the demand and notice periods
described above, the COUNTY may proceed to present a claim
on the Corporate Guarantee to the extent that the
obligation(s) identified in the demand and notice have not
been satisfied by the OWNER.
(e) COUNTY's right to make a claim upon the Corporate Guarantee
shall be subject to Section 9.9.8 below.
(f) The obligations of OWNER imposed in Section 8 of Exhibit "K" are
incorporated herein by reference as if set forth in full.
9.9.5 Financial Assurances Fund.
-------------------------
(a) Commencing upon the date of Start Up of Operations, OWNER
and COUNTY shall contribute into a financial assurances fund
to be held by a trustee or other entity mutually selected by
OWNER and COUNTY ("Financial Assurances Fund") a total of
Ten Cents ($0.10) per each ton of waste deposited at the
Landfill, on a monthly basis until such time that the
Financial Assurances Fund equals and is maintained at a
minimum amount of Fifty Million Dollars ($50,000,000.00)(
the "Fund Cap"). OWNER and COUNTY shall each contribute one
half (i.e., Five Cents ($0.05) per ton) of the per tonnage
amount required to be deposited into the Fund. COUNTY's
allocated portion of the deposit may come from the Purchase
Price, or otherwise, in the discretion of the COUNTY. All
interest or other earnings from the Financial Assurances
Fund shall be deposited into and held in the Fund. After
the
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Fund Cap is reached, any amounts in the Financial
Assurances Fund in excess of the Fund Cap may be distributed
equally to OWNER and COUNTY if OWNER and COUNTY mutually
agree.
(b) The monies in the Financial Assurances Fund shall be held
and administered, pursuant to a separate agreement to be
entered into between COUNTY and OWNER, for the exclusive
purposes of securing OWNER'S obligations under Sections 9.2,
9.3, 9.5, 9.7 and 9.8 above, for securing COUNTY's
obligations to OWNER under this Agreement, and for
discharging any environmental liability of OWNER or COUNTY
in connection with the transportation or deposit of waste at
the Landfill (the "Financial Assurances Fund Agreement").
Although COUNTY and OWNER shall each own fifty percent (50%)
of the Financial Assurances Fund (assuming COUNTY and OWNER
have made equal deposits), the Financial Assurances Fund
Agreement shall structure the holding and administration of
the Financial Assurances Fund in such a manner so as to
reasonably minimize the risk to and/or loss of any monies in
the Financial Assurances Fund as a result of the bankruptcy
of or creditor's claims against either the COUNTY or OWNER
not arising from such party's obligations under this
Agreement.
(c) At any time that the balance of funds in the Financial
Assurances Fund is such that the aggregate amount of
financial assurances provided under Sections 9.9.1 (Letter
of Credit, up to a maximum of $2 million), 9.9.2
(Environmental Liability Insurance, up to a maximum of $10
million), 9.9.4 (Corporate Guarantee, up to a maximum of $10
million) and 9.9.5 (Financial Assurances Fund) exceeds
Thirty Million Dollars ($30,000,000.00), then OWNER shall
have the right to reduce, by the amount of such excess, the
amount of the (1) Letter of Credit, (2) Environmental
Liability Insurance, and (3) Corporate Guarantee, in that
order as (and if) the amount of each is respectively reduced
in full or as otherwise agreed to by COUNTY, provided that
the aggregate amount of financial assurances available
thereafter does not fall below Thirty Million Dollars
($30,000,000.00).
(d) Unless otherwise provided in the agreement between
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COUNTY and OWNER described in subsection (b) above, prior to
making any claim on the Financial Assurances Fund, the COUNTY
shall first provide at least sixty (60) days written demand on
the OWNER, except for demand(s) arising out of those obligations
described in Section 9.8 of this Agreement ("Emergencies"), in
which case five (5) days written demand and notice shall be
provided. Each demand and notice shall specify the nature and
amount of the obligation(s) due. Following the expiration of the
demand and notice periods described above, the COUNTY may proceed
to draw on the Financial Assurances Fund to the extent that the
obligation(s) identified in the demand and notice have not been
satisfied by the OWNER. COUNTY's right to make a claim or draw
upon the Financial Assurances Fund shall be subject to Section
9.9.8 below.
9.9.6 Priority of Use of Financial Assurances. Notwithstanding any
---------------------------------------
other provision of this Agreement, except in the event of an Emergency (see
Section 9.8 above), if OWNER does not pay any obligation of OWNER arising out of
Section 9.2, 9.3, 9.5, 9.7 or 9.8 hereinabove, COUNTY shall seek payment of
OWNER's obligations from the financial assurances provided in Section 9.9 and
subsections thereunder in the following order of priority unless OWNER shall
otherwise agree:
(a) First, a claim shall be made against the Environmental
Liability Insurance or General Liability Insurance, as
appropriate;
(b) Second, to the extent there is no insurance or if the
insurance claim has not been paid, compromised or is denied
within one hundred eighty (180) days of the submission of
the claim, a call or claim may be made on and only to the
extent of that portion, if any, of the Financial Assurances
Fund which then exceeds a Fund balance of Eight Million
Dollars ($8,000,000.00);
(c) Third, to the extent a claim or call is not satisfied by
insurance and/or the Financial Assurances Fund as provided
in subparagraphs (a) and (b) above, a call or claim may be
made on the Letter of Credit(s);
(d) Fourth, to the extent a claim or call is not
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satisfied by insurance, the Financial Assurances Fund and/or the
Letter(s) of Credit as provided in subparagraphs (a), (b) and (c)
above, a call or claim may be made on the Corporate Guarantee;
and
(e) Fifth, to the extent a claim or call is not satisfied by
insurance, the Financial Assurances Fund, the Letter(s) of
Credit and/or the Corporate Guarantee as provided in
subparagraphs (a), (b), (c) and (d) above, a call or claim
may be made on the balance of the Financial Assurances Fund.
COUNTY's right to make a claim or draw upon any financial assurance shall
be subject to Section 9.9.8 below. COUNTY and OWNER shall promptly each provide
the other with notice and copies of all claims, correspondence or other
documents submitted to or provided by any insurance carrier, trustee, financial
institution or other party in connection with any claim or call on any financial
assurance.
9.9.7 Alternative or Substitute Financial Assurances. With the
----------------------------------------------
COUNTY's consent, which shall not be unreasonably withheld or delayed, OWNER
shall have the right to replace in whole or in part any of the financial
assurances listed in Sections 9.9.1 through 9.9.5 with a substitute financial
assurance, provided that (i) the total dollar amount of the financial assurance
being replaced shall not be reduced from the dollar amount of such financial
assurance then in place (and required to be in place) at the time of the
substitution, (ii) insurance may not be used as a substitute financial assurance
without the COUNTY's advance written consent, and (iii) no portion of the
Financial Assurances Fund may be replaced by another financial assurance until
the aggregate amount of financial assurances exceeds Thirty Million Dollars
($30,000,000.00) and a minimum balance of Eight Million Dollars ($8,000,000.00)
is maintained in the Financial Assurances Fund after such substitution.
In the event OWNER substitutes a new or additional Letter of Credit
for all or any part of any financial assurance hereunder, then such new or
additional Letter of Credit shall be in substantially the form of Exhibit "J" or
as otherwise approved by the advance written consent of COUNTY.
9.9.8 Wrongful or Improper Claim or Draw by COUNTY. COUNTY agrees
---------------------------------------------
that in the event (i) COUNTY makes a claim or draw on any of the financial
assurances described above in Sections 9.9.1 (Letter of Credit), 9.9.2
(Environmental Liability Insurance), 9.9.3 (Comprehensive General Liability
Insurance), 9.9.4 (Corporate
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Guarantee)and 9.9.5 (Financial Assurances Fund) without just cause, i.e., OWNER
is not in breach of any of its obligations secured by such financial assurance
under this Agreement, or (ii) COUNTY makes a claim or draw on any financial
assurance in violation of the priority provisions of Section 9.9.7 above
(Priority of Use of Financial Assurances), then COUNTY shall immediately
reimburse to OWNER the principal amount, if any, wrongfully or improperly drawn
on such financial assurance and all of OWNER's reasonable costs, expenses and
fees (including without limitation attorneys' fees) incurred in connection with
such wrongful or improper claim or draw, together with interest on all such
amounts (including the principal amount of the draw) at the then highest lawful
rate.
9.10 Source Communities Indemnity Provisions. OWNER will request, and use
---------------------------------------
its reasonable, good faith efforts to require, that each contract (Contract)
entered into between OWNER and any entity, whether public or private, which
provides for the delivery of waste to or disposal of waste at the Project shall
contain a provision, enforceable by the COUNTY, and which survives the
termination of this Agreement and the Contract, which shall provide that such
entity shall defend, indemnify, save and hold COUNTY and District, their
respective officers, agents and employees harmless from any and all liabilities,
penalties, fines, demands, claims, causes of action, suits and costs and
expenses incidental thereto, including, without limitation costs of judgments,
orders, defense, settlement and reasonable attorneys fees, which COUNTY or
District may suffer, incur, be responsible for or pay out, of whatsoever nature
or kind, including without limitation costs associated with environmental
impairment and remediation, caused by the delivery by such entity or its agents
of any waste which is not Nonhazardous solid waste to the Project or disposal of
any waste which is not Nonhazardous solid waste in the Landfill. Such provision
shall not limit any other remedy or right available to COUNTY or District at law
or equity.
9.11 Unforeseen Circumstances. If an unforeseen circumstance or event
------------------------
resulting from the Project occurs and such unforeseen circumstance or event is
not otherwise within the regulatory jurisdiction of the COUNTY or another
agency, be it state, federal or local, then upon request of COUNTY, OWNER and
COUNTY shall negotiate, in good faith, for a mutually agreed upon plan of action
which shall be undertaken by OWNER to remedy, resolve or manage such unforeseen
circumstance or event. If OWNER and COUNTY fail to agree upon such a plan of
action within ninety (90) days, then COUNTY may request the appointment of an
arbitrator to resolve the dispute by binding arbitration. The arbitrator
appointed by COUNTY shall be a neutral arbitrator agreed to by OWNER. If COUNTY
and
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OWNER are unable to agree on an arbitrator, then COUNTY may petition the
Superior Court of Riverside County for the appointment of an arbitrator. The
decision to arbitrate the matter rests solely with the COUNTY. Unless otherwise
specified in this Section 9.11, the binding arbitration shall be governed by the
provisions of Title 9 of Part 3, commencing at (S)1280, of the California Code
of Civil Procedure, as amended, provided, however, that OWNER and COUNTY shall
each pay fifty percent (50%) of the cost of the arbitrator and each party shall
bear its own cost for presenting the issue to the arbitrator.
Arbitration under this Section 9.11 shall not be considered "legal action
or other proceedings" for the purpose of Section 11.17 of this Agreement.
For the purpose of this Section 9.11, an "unforeseen circumstance or event"
shall mean any circumstance, condition or situation resulting from the Project
which is not addressed or contemplated in this Agreement, Specific Plan No. 305,
the Conditions of Approval for Specific Plan No. 305, the Mitigation Monitoring
Program for Specific Plan No. 305, Section 17. of Ordinance No. 348 (Specific
Plan Zoning Ordinance) reflecting Change of Zone No. 6249, or other current and
future land use entitlements and requirements for the Project, as the same may
be amended or supplemented from time to time, or which is not analyzed and
considered in Draft or Final Environmental Impact Statement/Environmental Impact
Report No. 397 or any future environmental documentation for the Project. The
parties further agree that no plan of action shall be required to be undertaken
by OWNER under this Section 9.11 to remedy, resolve or manage any unforeseen
circumstance or event if the implementation of such action is commercially
infeasible.
9.12 Survival. The following provisions of this Agreement shall survive
--------
the termination of this Agreement for any reason: Section 2.3.2 (Specific Plan
No. 305); the Purchase and Sale Agreement (Exhibit "F"); Sections 4.7.3 (Park,
Open Space, Habitat Mitigation, Environmental Monitoring and Research) and 4.7.4
(Environmental Mitigation Trust) and Exhibit "H" (Environmental Mitigation
Trust); Section 8 and subsections thereunder (Default and Remedies); and
Sections 9.2 (Third Party Litigation Concerning Agreement), 9.3 (OWNER
Indemnity), 9.4 (COUNTY Indemnity), 9.5 (Additional OWNER Indemnity), 9.6
(Reservation of Rights), 9.7 (Environmental Impairment and Damage to Natural
Resources) and 9.8 (Emergencies).
The provisions of Section 9.9 (Financial Assurances) and all subsections
thereunder shall survive the termination of this
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Agreement until the expiration of five years from the cessation of the disposal
of waste at the Landfill; provided, however, in the event a claim is made by
COUNTY on the financial assurances at any time during that period (i.e., prior
to the expiration of five years from the cessation of the disposal of waste at
the Landfill), then an adequate reserve for such claim shall be established by
agreement of OWNER and COUNTY.
The provisions of Section 3.14 (Staged Tonnage Increase) and Section 4.7.7
(Host Community Funding) shall survive the termination of this Agreement only if
termination is by reason of COUNTY's default.
10. MORTGAGEE PROTECTION.
--------------------
The parties hereto agree that this Agreement shall not prevent or limit
OWNER, in any manner, at OWNER's sole discretion, from encumbering the Property
or any interest therein or portion thereof or any improvement thereon, or from
encumbering, selling or reserving air space associated with the Property by any
mortgage, deed of trust or other security device securing financing with respect
to the Property. COUNTY acknowledges that the lenders providing such financing
may require certain Agreement interpretations and modifications and agrees upon
request, from time to time, to meet with OWNER and representatives of such
lenders to negotiate in good faith any such request for interpretation or
modification. COUNTY will not unreasonably delay or withhold its consent to any
such requested interpretation or modification provided such interpretation or
modification is consistent with the intent and purposes of this Agreement. Any
Mortgagee of the Property shall be entitled to the following rights and
privileges:
(a) Neither entering into this Agreement nor a breach of this
Agreement shall defeat, render invalid, diminish or impair
the lien of any mortgage on the Property made in good faith
and for value, unless otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering
the Property, or any part thereof, which Mortgagee has
submitted a request in writing to the COUNTY in the manner
specified herein for giving notices, shall be entitled to
receive written notification from COUNTY of any default by
OWNER in the performance of OWNER's obligations under this
Agreement.
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(c) If COUNTY timely receives a request from a Mortgagee
requesting a copy of any notice of default given to OWNER
under the terms of this Agreement, COUNTY shall provide a
copy of that notice to the Mortgagee within ten (10) days of
sending the notice of default to OWNER. The Mortgagee shall
have the right, but not the obligation, to cure the default
during the remaining cure period allowed such party under
this Agreement.
(d) Any Mortgagee who comes into possession of the Property, or
any part thereof, pursuant to foreclosure of the mortgage or
deed of trust, or deed in lieu of such foreclosure, shall
take the Property, or part thereof, subject to the terms of
this Agreement. Notwithstanding any other provision of this
Agreement to the contrary, no Mortgagee shall have an
obligation or duty under this Agreement to perform any of
OWNER's obligations or other affirmative covenants of OWNER
hereunder, or to guarantee such performance; provided,
however, that should the Mortgagee operate the Landfill then
Mortgagee shall be subject to all of the provisions of this
Agreement and provided further that to the extent that any
covenant to be performed by OWNER is a condition precedent
to the performance of a covenant by COUNTY, the performance
thereof shall continue to be a condition precedent to
COUNTY's performance hereunder, and further provided that
any sale, transfer or assignment by any Mortgagee in
possession shall be subject to the provisions of Section 2.4
of this Agreement.
11. MISCELLANEOUS PROVISIONS.
------------------------
11.1 Recordation of Agreement. This Agreement and any amendment or
------------------------
cancellation thereof shall be recorded with the County Recorder by the Clerk of
the Board of Supervisors within the period required by Section 65868.5 of the
Government Code.
11.2 Entire Agreement. This Agreement sets forth and contains the entire
----------------
understanding and agreement of the parties, and there are no oral or written
representations, understandings or ancillary covenants, undertakings or
agreements which are not contained or expressly referred to herein. No
testimony or evidence of any such representations, understandings or covenants
shall be admissible in any proceeding of any kind or nature to interpret or
determine the
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terms or conditions of this Agreement.
11.3 Severability. If any term, provision, covenant or condition of this
------------
Agreement shall be determined invalid, void or unenforceable by a court of
competent jurisdiction, the remainder of this Agreement shall not be affected
thereby to the extent such remaining provisions are not rendered impractical to
perform taking into consideration the purposes of this Agreement.
Notwithstanding the foregoing, the provisions regarding Economic Benefits set
forth in Section 4 of this Agreement, the provisions regarding Indemnity and
Financial Assurances set forth in Section 9 of this Agreement, and the Purchase
and Sale Agreement are essential elements of this Agreement and COUNTY would not
have entered into this Agreement but for such provisions, and therefore in the
event any such provisions is/are determined to be invalid, void or
unenforceable, this entire Agreement shall be null and void and of no force and
effect whatsoever. In addition, if OWNER violates the terms of Section 2.8 of
this Agreement ("Restriction on Importation") and a court of competent
jurisdiction subsequently upholds any challenge by OWNER to the enforceability
of said Section 2.8 and declares the terms of Section 2.8 invalid, void or
unenforceable, then this entire Agreement shall be null and void and of no force
and effect whatsoever.
11.4 Interpretation and Governing Law. This Agreement and any dispute
--------------------------------
arising hereunder shall be governed and interpreted in accordance with the laws
of the State of California. This Agreement shall be construed as a whole
according to its fair language and common meaning to achieve the objectives and
purposes of the parties hereto, and the rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be employed
in interpreting this Agreement, all parties having been represented by counsel
in the negotiation and preparation hereof.
11.5 Section Headings. All section headings and subheadings are inserted
----------------
for convenience only and shall not affect any construction or interpretation of
this Agreement.
11.6 Singular and Plural. As used herein, the singular of any word
-------------------
includes the plural.
11.7 Joint and Several Obligations. If at any time during the term of this
-----------------------------
Agreement the Property or Project is owned, in whole or in part, by more than
one OWNER, all rights and obligations of such OWNERS under this Agreement shall
be joint and several, the default of any such OWNER shall be the default of all
such OWNERS, and any OWNER have the right to enforce the terms of this
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Agreement.
11.8 Time of Essence. Time is of the essence in the performance of the
---------------
provisions of this Agreement as to which time is an element.
11.9 Waiver. Failure by a party to insist upon the strict performance of
------
any of the provisions of this Agreement by the other party, or the failure by a
party to exercise its rights upon the default of the other party, shall not
constitute a waiver of such party's right to insist and demand strict compliance
by the other party with the terms of this Agreement thereafter.
11.10 No Third Party Beneficiaries. This Agreement is made and entered
----------------------------
into for the sole protection and benefit of the parties and their successors and
assigns. No other person shall have any right of action based upon any
provision of this Agreement.
11.11 Force Majeure. Neither party shall be deemed to be in default
-------------
where failure or delay in performance of any of its obligations under this
Agreement is caused by floods, earthquakes, other Acts of God, fires, wars,
riots or similar hostilities, strikes and other labor difficulties beyond the
party's control (including the party's employment force), government
regulations, court actions (such as restraining orders or injunctions),
referendum, substantially changed economic conditions or circumstances or other
causes beyond the party's control. If any such events shall occur, the time for
performance by either party of any of its obligations hereunder shall be
extended for the period of time that such events prevented such performance, but
in no event shall the time be extended beyond the term of this Agreement.
11.12 Mutual Covenants. The covenants contained herein are mutual
----------------
covenants and also constitute conditions to the concurrent or subsequent
performance by the party benefited thereby of the covenants to be performed
hereunder by such benefited party.
11.13 Successors in Interest. The burdens of this Agreement shall be
-----------------------
binding upon, and the benefits of this Agreement shall inure to, all successors
in interest to the parties to this Agreement. All provisions of this Agreement
shall be enforceable as equitable servitudes and constitute covenants running
with the land. Each covenant to do or refrain from doing some act hereunder
with regard to development of the Property: (a) is for the benefit of and is a
burden upon every portion of the Property; (b) runs with the Property and each
portion thereof; and (c) is binding upon each party and each successor in
interest during ownership of the
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<PAGE>
Property or any portion thereof.
11.14 Counterparts. This Agreement may be executed by the parties in
------------
counterparts, which counterparts shall be construed together and have the same
effect as if all of the parties had executed the same instrument.
11.15 Project as a Private Undertaking. It is specifically understood
--------------------------------
and agreed by and between the parties hereto that the development of the Project
is a private development, that neither party is acting as the agent of the other
in any respect hereunder, and that each party is an independent contracting
entity with respect to the terms, covenants and conditions contained in this
Agreement. No partnership, joint venture or other association of any kind is
formed by this Agreement. The only relationship between COUNTY and OWNER is
that of a government entity regulating the development of private property and
the owner of such property.
11.16 Further Actions and Instruments. Each of the parties shall
-------------------------------
cooperate with and provide reasonable assistance to the other to the extent
contemplated hereunder in the performance of all obligations under this
Agreement and the satisfaction of the conditions of this Agreement. Upon the
request of either party at any time, the other party shall promptly execute,
with acknowledgment or affidavit if reasonably required, and file or record such
required instruments and writings and take any actions as may be reasonably
necessary under the terms of this Agreement to carry out the intent and to
fulfill the provisions of this Agreement or to evidence or consummate the
transactions contemplated by this Agreement.
11.17 Jurisdiction, Venue and Attorneys' Fees. Any action at law or in
---------------------------------------
equity arising under this Agreement or brought by a party hereto for the purpose
of enforcing, construing or determining the validity of any provision of this
Agreement shall be filed and tried in the Superior Court of the County of
Riverside, State of California, and the parties hereto waive all provisions of
law providing for the filing, removal or change of venue to any other State
court provided, however, that the parties reserve the right to file in or remove
to Federal District Court. Should legal action or other proceedings be brought
by either party for breach of this Agreement or to enforce any provision, the
prevailing party in such action or proceeding shall be entitled to reasonable
attorneys' fees, court costs, and other litigation expenses, including without
limitation, expenses incurred for preparation and discovery.
11.18 Eminent Domain. No provision of this Agreement
--------------
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shall be construed to limit or restrict the exercise by COUNTY of its power of
eminent domain or, except to extent provided in Section 8.3 if applicable,
OWNER's right to just compensation in the event COUNTY exercises its power of
eminent domain.
11.19 County's Reserve for Unfunded County Liabilities on Other
---------------------------------------------------------
Landfills. The parties acknowledge that the COUNTY, through the establishment
- ----------
and operation of the Riverside County Waste Resources Management District, has
established a sinking fund reserve in order to fund certain currently unfunded
potential liabilities relating to the closure, post-closure and remediation of
landfills owned and operated by the COUNTY or the District. To date, the
District has used a portion of the tipping fees charged for County Waste at
these facilities to contribute to its closure, post-closure and remediation
reserve fund. In the event OWNER contracts with any party to accept County
Waste, OWNER will request and in good faith endeavor to require that such user
make a contribution to the District's closure/post-closure/remediation reserve
fund; this covenant is not intended, and shall not be interpreted to, put OWNER
in a less competitive position for County Waste contracts vis-a-vis other
landfills or waste disposal facilities.
11.20 Authority to Execute. The person or persons executing this
--------------------
Agreement or Exhibit attached hereto on behalf of OWNER or any other person or
business entity hereby warrants and represents that he/she has/have the
authority to execute this Agreement or Exhibit on behalf of his/her corporation,
partnership or business entity and warrants and represents that he/she has/have
the authority to bind OWNER or any other person or business entity to the
performance of its obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year set forth below.
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"COUNTY"
COUNTY OF RIVERSIDE
Dated:_______________ By:_____________________________
ATTEST:
GERALD A. MALONEY
Clerk of the Board
By:__________________
Deputy
(SEAL)
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<PAGE>
"OWNER"
MINE RECLAMATION CORPORATION,
A CALIFORNIA CORPORATION
Dated: _____________ By:____________________________
Title: ________________________
Dated: _____________ By:____________________________
Title:_________________________
[ALL SIGNATURES SHALL BE ACKNOWLEDGED BY A NOTARY PUBLIC. EXECUTION ON BEHALF
OF ANY CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.]
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<PAGE>
KAISER EAGLE MOUNTAIN, INC.,
A DELAWARE CORPORATION
Dated: _____________ By:____________________________
Title: _________________________
Dated: _____________ By:____________________________
Title:__________________________
[ALL SIGNATURES SHALL BE ACKNOWLEDGED BY A NOTARY PUBLIC. EXECUTION ON BEHALF
OF ANY CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.]
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<PAGE>
EAGLE MOUNTAIN RECLAMATION, INC.,
A DELAWARE CORPORATION
Dated: _____________ By:____________________________
Title: _________________________
Dated: _____________ By:____________________________
Title:__________________________
[ALL SIGNATURES SHALL BE ACKNOWLEDGED BY A NOTARY PUBLIC. EXECUTION ON BEHALF
OF ANY CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.]
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<PAGE>
KAISER VENTURES INC., A DELAWARE
CORPORATION
Dated: _____________ By:____________________________
Title: _________________________
Dated: _____________ By:____________________________
Title:__________________________
[ALL SIGNATURES SHALL BE ACKNOWLEDGED BY A NOTARY PUBLIC. EXECUTION ON BEHALF
OF ANY CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.]
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<PAGE>
Development Agreement No. 64
EXHIBIT "A"
LEGAL DESCRIPTION OF EAGLE MOUNTAIN
-----------------------------------
LANDFILL SPECIFIC PLAN BOUNDARY
-------------------------------
[legal description follows]
1
<PAGE>
Development Agreement No. 64
EXHIBIT "B"
MAP SHOWING PROPERTY AND ITS LOCATION
-------------------------------------
DUE TO THE SIZE OF THE MAP EXHIBIT "B" MENTIONED ABOVE IS ON FILE IN THE
RIVERSIDE COUNTY PLANNING DEPARTMENT AND IS INCORPORATED HEREIN BY REFERENCE.
1
<PAGE>
Development Agreement No. 64
EXHIBIT "C"
EXISTING DEVELOPMENT APPROVALS
------------------------------
GENERAL PLAN AMENDMENT
- ----------------------
General Plan Amendment No. 402
SPECIFIC PLAN
- -------------
Specific Plan No. 305
ZONING
- ------
Ordinance No. 348.1355
(Zone Change No. 1621)
Ordinance No. 348.3477
(Zone Change No. 6249)
LAND DIVISIONS
- --------------
None
OTHER DEVELOPMENT APPROVALS
- ---------------------------
Revised Permit No. 158 to Reclamation Plan No. 107
The development approvals listed above include the approved maps and all
conditions of approval.
COPIES OF THE EXISTING DEVELOPMENT APPROVALS LISTED ABOVE ARE ON FILE IN THE
RIVERSIDE COUNTY PLANNING DEPARTMENT AND ARE INCORPORATED HEREIN BY REFERENCE.
<PAGE>
Development Agreement No. 64
EXHIBIT "D"
EXISTING LAND USE REGULATIONS
-----------------------------
1. Riverside County Comprehensive General Plan as amended through Resolution
No. 97-097.
2. Ordinance No. 348 as amended through Ordinance No. 3793.
3. Ordinance No. 448 as amended through Ordinance No. a.
4. Ordinance No. 457 as amended through Ordinance No. 88.
5. Ordinance No. 458 as amended through Ordinance No. 12.
6. Ordinance No. 460 as amended through Ordinance No. 137.
7. Ordinance No. 461 as amended through Ordinance No. 8.
8. Ordinance No. 509 as amended through Ordinance No. 2.
9. Ordinance No. 546 as amended through Ordinance No. 15.
10. Ordinance No. 547 as amended through Ordinance No. 7.
11. Ordinance No. 555 as amended through Ordinance No. 18.
12. Ordinance No. 617 as amended through Ordinance No. 4.
13. Ordinance No. 650 as amended through Ordinance No. 4.
14. Ordinance No. 659 as amended through Ordinance No. 5.
15. Ordinance No. 663 as amended through Ordinance No. 10.
16. Ordinance No. 671 as amended through Ordinance No. 13.
17. Ordinance No. 682 as amended through Ordinance No. 3.
18. Resolution No. 87-525a Establishing Procedures and Requirements for the
Consideration of Development Agreements, as amended by Resolution No. 88-
39, Resolution No. 88-119 and Resolution 91-233.
COPIES OF THE EXISTING LAND USE REGULATIONS LISTED ABOVE ARE ON FILE IN THE
RIVERSIDE COUNTY PLANNING DEPARTMENT AND ARE INCORPORATED HEREIN BY REFERENCE.
<PAGE>
Development Agreement No. 64
EXHIBIT "E"
ASSIGNMENT OF LEASEHOLD INTEREST
--------------------------------
THIS AGREEMENT is this _____ day of _______, 19__, by and between MINE
RECLAMATION CORPORATION, a California corporation, hereinafter called
"Assignor," and the COUNTY OF RIVERSIDE, a political subdivision of the State of
California, hereinafter called "COUNTY."
RECITALS
--------
A. KAISER EAGLE MOUNTAIN, INC., as Landlord, KAISER VENTURES INC., as
Landlord's guarantor, and Assignor as Tenant executed a Lease on November 30,
1988, and subsequently recorded a Memorandum of Lease on December 1, 1988, as
Instrument No. 351814, of the County Recorder of Riverside County, California.
Said lease, as amended, is herein referred to as the "Lease." By the terms of
the Memorandum of Lease, the real property described in the Lease was leased to
Assignor as Tenant for a term of One Hundred (100) years, commencing on November
30, 1988, and ending on November 30, 2088, subject to earlier termination as
therein provided ("Leasehold Interest").
B. Assignor now desires to assign to COUNTY a eight percent (8%)
undivided interest in the air space of that portion of Assignor's Leasehold
Interest which is subject to Specific Plan No. 305, as more particularly
described in Exhibit "A" attached to Development Agreement No. 64, as tenants-
in-common, and COUNTY desires to accept the assignment thereof.
THEREFORE, Assignor and COUNTY agree as follows:
ASSIGNMENT
----------
FOR VALUE RECEIVED, Assignor hereby assigns and transfers to COUNTY, a
eight Percent (8%) undivided interest, as tenants-in-common, of all of its
right, title and interest in and to the air space of that portion of the
Leasehold Interest hereinbefore described, and COUNTY hereby agrees to and does
accept the assignment.
Executed at _____________________, California, on the day and
1
<PAGE>
year first written above.
ASSIGNOR:
MINE RECLAMATION CORPORATION, a California
corporation
By: ___________________________
Title: ________________________
By: ___________________________
Title: ________________________
CONSENT OF LANDLORD
-------------------
The undersigned are the Landlord and guarantor of Landlord in the Lease
described in the foregoing Assignment and hereby consents to the Assignment of
that air space of that portion of the Lease hereinbefore described to the COUNTY
OF RIVERSIDE.
LANDLORD:
KAISER EAGLE MOUNTAIN, INC.
By: ___________________________
Title: ________________________
By: ___________________________
Title: ________________________
KAISER VENTURES INC.
By: ___________________________
Title: ________________________
By: ___________________________
Title: ________________________
(ALL SIGNATURES SHALL BE ACKNOWLEDGED BEFORE A NOTARY PUBLIC. EXECUTION ON
BEHALF OF ANY CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.)
2
<PAGE>
ASSIGNEE:
COUNTY OF RIVERSIDE
By:___________________________
Chairman, Board of
Supervisors
ATTEST:
GERALD A. MALONEY
Clerk of the Board
By:____________________
Deputy
(SEAL)
3
<PAGE>
Development Agreement No. 64
EXHIBIT "F"
PURCHASE AND SALE AGREEMENT
---------------------------
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made this _____ day
of ____________, 19__, by and between the COUNTY OF RIVERSIDE, a political
subdivision of the State of California ("COUNTY") and MINE RECLAMATION
CORPORATION, a California corporation ("Buyer").
R E C I T A L S
---------------
WHEREAS, COUNTY is the owner of an eight percent (8%) undivided
interest in the air space of that portion of a Leasehold Interest which is
subject to Specific Plan No. 305 pursuant to an Assignment of Leasehold Interest
(the "County Interest"); and
WHEREAS, COUNTY has determined that the County Interest is surplus
property pursuant to Section 4.3 of Development Agreement No. 64, which by this
reference is incorporated herein and made a part hereof; and
WHEREAS, COUNTY desires to sell and Buyer desires to purchase the County
Interest; and
WHEREAS, Buyer and COUNTY intend that the consideration to be paid
pursuant to this Purchase and Sale Agreement will derive from monies generated
from Buyer's Eagle Mountain Landfill Project ("Project").
NOW, THEREFORE, it is agreed as follows:
1. RECITALS INCORPORATED.
---------------------
The above-stated Recitals are hereby expressly made a part of this
Purchase and Sale Agreement.
2. PURCHASE AND SALE; CONSIDERATION.
--------------------------------
2.1 Purchase and Sale. COUNTY hereby agrees
-----------------
to sell and Buyer hereby agrees to purchase the County Interest.
2.2 COUNTY's Rights and Obligations. Concurrent with the execution
-------------------------------
of this Agreement, COUNTY agrees to execute and deliver to Buyer an Assignment
of Leasehold Interest.
2.3 Consideration. As consideration for the transfer of the County
-------------
Interest to Buyer, Buyer shall pay to COUNTY the following sums of money
("Purchase Price") based solely and exclusively upon the volume of Non-County
Waste actually disposed
1
<PAGE>
of at the Landfill, and as illustrated in Table F-1 attached hereto and
incorporated herein by this reference; for purposes of calculating the Purchase
Price payments, the term "PERCENTAGE BASE RATE" as used below shall mean (a) Ten
Percent (10%)of the lowest price per ton then being charged for County or Non-
County Waste, if the amount of Non-County Waste disposed of at the Landfill in
the subject calendar month is 310,000 tons or less, and (b) Twelve and One-Half
Percent (12.5%) of the lowest price per ton then being charged for County or
Non-County Waste, if the amount of Non-County Waste disposed of at the Landfill
in the subject calendar month is more than 310,000 tons:
2.3.1 The greater of (i) the Percentage Base Rate or (ii) $2.70 per
ton, for each ton of Non-County Waste disposed of at the Landfill in any
calendar month;
2.3.2 An additional $0.80 per ton for additional Non-County Waste
disposed of at the Landfill in any calendar month, after 180,000 tons and until
260,000 tons of Non-County Waste have been disposed of at the Landfill in that
month;
2.3.3 An additional $0.50 per ton for additional Non-County Waste
disposed of at the Landfill in any calendar month, after 260,000 tons and until
310,000 tons of Non-County Waste have been disposed of at the Landfill in that
month;
2.3.4 An additional $1.00 per ton for additional Non-County Waste
disposed of at the Landfill in any calendar month, after 310,000 tons and until
410,000 tons of Non-County Waste have been disposed of at the Landfill in that
month; and
2.3.5 An additional $1.00 per ton for additional Non-County Waste
disposed of at the Landfill in any calendar month, after 410,000 tons of Non-
County Waste have been disposed of at the Landfill in that month.
2.4 Environmental Mitigation Trust Payments. From the amounts
---------------------------------------
received pursuant to Section 2.3 of this Agreement, COUNTY shall deposit $0.90
per ton into the Environmental Mitigation Trust established pursuant to Sections
4.7.3 and 4.7.4 of Development Agreement No. 64 and Exhibit "H" thereto.
2.5 Environmental Mitigation Trust COLA Payments. The Environmental
--------------------------------------------
Mitigation Trust established pursuant to Sections 4.7.3 and 4.7.4 of Development
Agreement No. 64 and Exhibit "H" thereto provides for a cost of living increase
in the $0.90 per ton Environmental Mitigation Trust payment upon the occurrence
of certain events ("COLA INCREASE"). The COLA Increase shall be calculated as
follows:
Commencing on January 1 of the tenth (10th) year after that
2
<PAGE>
year in which total non-hazardous municipal solid waste disposed of at the
Landfill reaches the maximum annual amount (6,240,000 tons) of non-
hazardous municipal solid waste permitted by the COUNTY ("Base Year") that
can be disposed of at the Landfill, and on January 1 of every tenth (10th)
year thereafter ("Tenth Anniversary Year"), the Environmental Mitigation
Trust payment (EMT Payment) shall be modified to an amount calculated as
follows: The then current EMT Payment multiplied by a fraction, the
numerator of which is the COLA Index amount on January 1 of the then
current Tenth Anniversary Year and the denominator of which is the COLA
Index amount on January 1, ten years prior thereto; provided however, that
in no event shall the adjusted EMT Payment be less than ninety cents
($0.90) per ton; and provided further that the increase for the next
succeeding ten year period shall not exceed fifty percent (50%) of the EMT
Payment in effect immediately prior to the increase as calculated pursuant
to this paragraph. The COLA Index shall be the Consumer Price Index for all
Urban Consumers in the Los Angeles-Anaheim-Riverside Areas (1982-1984 =
100), published by the United State Bureau of Labor Statistics. If the COLA
Index specified herein is discontinued or revised during the term of this
Agreement, such other governmental index or computation with which it is
replaced shall be used in order to obtain substantially the same result as
would have been obtained if the COLA Index had not been discontinued.
The Purchase Price payments to be made by Buyer to COUNTY under Section 2.3.1
hereof shall be increased by the amount of any COLA Increase which is required
for the EMT Payment under the foregoing paragraph (i.e., the amount in excess of
$0.90 per ton).
2.6 Payment Adjustment; Payment Terms.
---------------------------------
2.6.1 Payment to the COUNTY of the Purchase Price shall be
made on a monthly basis within one hundred twenty (120) days after the actual
disposal of waste within the Landfill; provided, however, that commencing on the
tenth anniversary date of this Agreement, in the event amounts actually owed the
COUNTY pursuant hereto do not equal Fifty Thousand Dollars ($50,000.00) per
month (Minimum Monthly Payment), Buyer shall nevertheless pay to COUNTY at least
the Minimum Monthly Payment which shall be credited against future amounts due
hereunder. Commencing on the fifteenth anniversary date of this Agreement and
as of each anniversary date thereafter, and continuing until January 1, 2015,
the Minimum Monthly Payment shall increase by Ten Thousand Dollars ($10,000.00).
2.6.2 In the event Buyer receives an advance payment of
tipping fees from any Landfill contract user (including, but not limited to,
money paid to Buyer from the sale of capacity
3
<PAGE>
rights, options to reserve capacity or options to secure a fixed or reduced
future tipping fee meeting the requirements of this Section 2.6.2), which
payment is to be credited against amounts which would otherwise be due to the
COUNTY pursuant to Section 2.3 hereof, Buyer shall pay to COUNTY Eight Percent
(8%) of the amount of such advance payment. The full amount of any money paid to
COUNTY pursuant hereto shall be credited against future payments next due to
COUNTY as a result of Non-County Waste actually deposited in the Landfill by the
contract user making the advance payment, or its assigns, until credited in
full.
2.6.3 Provided that the documentation effecting each of the following
types of transactions contain an express acknowledgment of the obligation of any
person, firm or entity depositing Non-County Waste in the Landfill to make the
payments provided in Section 2.3 hereof, no Purchase Price payment shall be
payable to COUNTY as a result of:
2.6.3.1 The sale of the stock of Buyer.
2.6.3.2 The sale of any asset of Buyer involved in the Project,
except for any asset on which a payment would be due to
COUNTY pursuant to the provisions of Section 2.6.2.
2.6.3.3 The sale of an option to purchase the stock of Buyer or
any asset of Buyer involved in the Project, except for
any asset on which a payment would be due to COUNTY
pursuant to the provisions of Section 2.6.2, provided,
however, that no advance payment will be payable to
COUNTY under Section 2.6.2 unless the option is
exercised and the option price is actually credited
against the purchase price of such asset.
2.6.3.4 The reimbursement to Buyer of any expenses, costs, fees
or other charges incurred by it in the development,
permitting, licensing, construction or operation of the
Project.
2.6.3.5 Any other payment to Buyer of whatsoever kind or nature
arising out of or in connection with the Project.
2.6.4 Notwithstanding the foregoing with respect to the
payment of the Purchase Price, each party acknowledges that:
4
<PAGE>
(a) At the present time the projected tipping fee to users of the
Landfill may exceed alternative tipping fees charged by many competitors. In
the event Buyer meets with significant resistance to the tipping fee it proposes
to charge a user, it may request COUNTY to consider a reduction, on a contract
by contract basis, of the Purchase Price payment. In such event, the parties
will meet within thirty (30) days of written notice from Buyer to COUNTY and
negotiate in good faith with respect to a reduction of the Purchase Price
payment, provided, however, the parties hereto recognize that there is no
obligation on the part of COUNTY to agree to any such reduction while at the
same time recognizing that failure to reduce the Purchase Price payment may
result in a diminution of the use and stream of income to both the COUNTY and
Buyer. In the event Buyer requests a reduction of the Purchase Price payment,
it shall allow the COUNTY reasonable access to its proprietary financial
information, subject to the COUNTY's agreement to maintain the confidentiality
of such information.
(b) The Purchase Price set forth herein has been negotiated and agreed
to based upon, among other things, the provisions of Section 7 of Development
Agreement No. 64. In the event all of the property described in Exhibit "A" of
Development Agreement No. 64 ("Property") becomes part of a single city as the
result of incorporation or annexation and the city legally imposes any fee,
charge, tax or other imposition which would be a credit if imposed by the COUNTY
pursuant to Section 4.7.9 of Development Agreement No. 64, the parties will meet
within thirty (30) days of written notice from Buyer to COUNTY and negotiate in
good faith with respect to a reduction of the Purchase Price payment. In the
event Buyer requests a reduction of the Purchase Price payment, it shall allow
COUNTY reasonable access to its proprietary financial information.
2.6.5 Buyer shall maintain complete, accurate and correct written
records of waste volumes at or with respect to the Landfill which would give
rise to payment to COUNTY, as provided in this Agreement. Such records shall be
open for inspection by COUNTY and its authorized agents and representatives at
all reasonable times, but, only after at least five (5) business day's notice,
at COUNTY'S sole cost and expense; provided, however, that, if any inspection by
COUNTY results in an adjustment to Buyer's records which has the effect of
increasing any payment by more than three percent (3%) of the amount paid by
Buyer, then the cost of such inspection shall be borne solely by Buyer. Without
limiting the effect of the foregoing, Buyer shall provide and maintain proper
books, records and accounts in which shall be kept correct records of the type
and quantity of the wastes which are deposited to the Landfill, as provided in
this Agreement. In addition, Buyer shall provide and maintain, at each point of
determination of tonnages of the wastes which are deposited at the Landfill,
irrespective of whether such points are located at or outside of the Landfill,
certified scales or other devices which
5
<PAGE>
are suitable for accurately determining quantity of the wastes which are
deposited at the Landfill. The weight in tons of the wastes which are deposited
at the Landfill shall be determined by deducting the tare weight of the vehicle
or container in which they are transported from the loaded weight of such
vehicle or container. COUNTY shall have the right, at its sole cost and expense,
to test the accuracy of such scales or other devices, at any time, with or
without notice; provided, however, that, if any testing by COUNTY necessitates
the recalibration of such scales or other devices, then the cost of such testing
shall be borne solely by Buyer. If any inspection or testing by COUNTY, as
provided in this Section results in an adjustment in any payment, or if any
adjustment between Buyer and any customer of Buyer requires an adjustment in any
payment, then COUNTY and Buyer shall cooperate with one another in retroactively
correcting all such payments.
2.7 No Increase in Purchase Price for Staged Tonnage Increase or
------------------------------------------------------------
Extension of Term. In the event an independent scientific panel is established
- -----------------
in accordance with the requirements of Section 3.14 (Staged Tonnage Increase) or
Section 2.3 (Term) of Development Agreement No. 64, the panel shall not be
authorized to request an increase in the Purchase Price payments above those set
forth in this Agreement.
2.8 Breach. Any breach of either party's obligations under any of
------
the provisions of Section 2 and sub-sections thereunder shall be deemed to be a
breach of such party's obligations under Development Agreement No. 64.
3. TIMELY PERFORMANCE.
------------------
Time is of the essence of this Agreement and failure to comply with
this provision shall be a material breach of this Agreement.
4. ATTORNEY'S FEES.
---------------
If either party files any action or brings any proceeding against the
other arising out of this Agreement, then the prevailing party shall be entitled
to recover as an element of its costs of suit, and not as damages, reasonable
attorney's fees to be fixed by the court. The "prevailing party" shall be the
party who is entitled to recover its costs of suit, whether or not suit proceeds
to final judgment. A party not entitled to recover its costs shall not recover
attorney's fees. No sum for attorney's fees shall be counted in calculating the
amount of a judgment for purposes of determining whether a party is entitled to
its costs or attorney's fees.
5. EFFECT OF WAIVER OF PROVISION OR REMEDY.
---------------------------------------
No waiver by a party of any provision of this Agreement shall be
considered a waiver of any other provision or any
6
<PAGE>
subsequent breach of the same or any other provision, including the time for
performance of any such provision. The exercise by a party of any remedy
provided in this Agreement or at law shall not prevent the exercise by that
party of any other remedy provided in this Agreement or at law.
6. AMENDMENT.
---------
This Agreement may be amended, in whole or in part, only upon written
agreement duly executed by the parties hereto.
7. COUNTERPARTS.
------------
This Agreement and all amendments and supplements to it may be
executed in counterparts, and all counterparts together shall be construed as
one document.
8. BINDING ON SUCCESSORS AND ON OWNERS UNDER DEVELOPMENT AGREEMENT.
---------------------------------------------------------------
This Agreement inures to the benefit of, and is binding on, the Buyer,
its heirs, personal representatives, assigns, successors, and the COUNTY.
By their signatures below, Kaiser Eagle Mountain, Inc., Eagle Mountain
Reclamation, Inc. and Kaiser Ventures Inc., which are all defined as "Owners"
under Development Agreement No. 64, hereby agree to be bound by the obligations
of Buyer hereunder, and each of such parties shall be entitled to enforce
Buyer's rights under this Agreement.
9. CAPTIONS, JOINT AND SEVERAL LIABILITY, CONTROLLING LAW.
------------------------------------------------------
The captions heading the various paragraphs of this Agreement are for
convenience and shall not be considered to limit, expand or define the contents
of the respective paragraphs.
Masculine, feminine or neuter gender and the singular and the plural
number, shall each be considered to include the other whenever the context so
requires. If either party consists of more than one person, each such person
shall be jointly and severally liable.
This Agreement shall be interpreted under the California law and
according to its fair meaning, and not in favor of or against any party.
10. SURVIVAL.
--------
This Agreement is independent of and separate and apart from any and
all other or additional agreements between the parties hereto of whatsoever
kind, nature or sort, concerning or in any
7
<PAGE>
manner related to the subject matter hereof, and shall survive the termination
or expiration of any and all such agreements, including, but not by way of
limitation, Development Agreement No. 64, between said parties.
11. NOTICES.
-------
All notices shall be in writing and shall be considered given either: (i)
when delivered in person to the recipient named below; or (ii) two (2) business
days after deposit in the United States mail in a sealed envelope as either
registered or certified mail with return receipt requested, and postage and
postal charges prepaid, and addressed to the recipient named below; or (iii) on
the date of delivery shown in the records of the telegraph company after
transmission by telegraph to the recipient named below; or (iv) upon receipt of
a facsimile (fax) transmission to the fax number listed below. All notices
shall be addressed as follows:
IF TO COUNTY:
Clerk of the Board of Supervisors
County of Riverside
P.O. Box 1147
Riverside, CA 92502-1147
Fax No.: 909-275-1071
WITH COPIES TO:
Chief Executive Officer
County of Riverside
4080 Lemon St., 12th Floor
Riverside, CA 92501
Fax No.: 909-275-1105
Director
Planning Department
County of Riverside
P.O. Box 1409
Riverside, CA 92502-1409
Fax No.: 909-275-3157
County Counsel
County of Riverside
3535 Tenth St., Suite 300
Riverside, CA 92501
Fax No.: 909-275-6322
Chief Executive Officer
Riverside County Waste Resources Management District
1995 Market Street
Riverside, CA 92501
Fax No.: 909-275-1374
8
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Director
Environmental Health
Health Administration Building
4065 County Circle Drive
Riverside, CA 92503
Fax No.: 909-358-5017
IF TO BUYER:
Mine Reclamation Corporation
43-645 Monterey Ave., Suite A
Palm Desert, CA 92260
Fax No.: 619-778-5891
WITH A COPY TO:
Mine Reclamation Corporation
Chief Executive Officer
43-645 Monterey Ave., Suite A
Palm Desert, CA 92260
Fax No.: 619-778-5891
Mine Reclamation Corporation
General Counsel
3633 E. Inland Empire Blvd., Suite 850
Ontario, CA 91764
Fax No.: 909-944-6605
IF TO KAISER EAGLE MOUNTAIN, INC., EAGLE MOUNTAIN RECLAMATION, INC. OR
KAISER VENTURES INC.:
Kaiser Eagle Mountain, Inc.
Eagle Mountain Reclamation, Inc.
Kaiser Ventures Inc.
Attn.: President
3633 E. Inland Empire Blvd., Suite 850
Ontario, CA 91764
Fax No.: 909-944-6605
In the event notice is given by fax, a copy of the notice shall also
be mailed, first-class mail, postage prepaid, to the recipients on the same day
the fax notice is given. Either party may, by notice given at any time, require
subsequent notices to be given to another person or entity, whether a party or
an officer or representative of a party, or to a different address, or both.
Notices given before actual receipt of notice of change shall not be invalidated
by the change.
Executed on the day and year first above written.
9
<PAGE>
COUNTY: COUNTY OF RIVERSIDE, a political
- ------ subdivision of the State of
California
By:________________________
Chairman, Board of Supervisors
ATTEST:
GERALD A. MALONEY, Clerk of the Board
By:_________________________
Deputy
(SEAL)
BUYER: MINE RECLAMATION CORPORATION,
- ------
a California corporation
By: ___________________________
Title: ________________________
By: ___________________________
Title: ________________________
(ALL SIGNATURES SHALL BE ACKNOWLEDGED BEFORE A NOTARY PUBLIC. EXECUTION ON
BEHALF OF ANY CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.)
KAISER EAGLE MOUNTAIN, INC.,
a Delaware corporation
By: ___________________________
Title: ________________________
By: ___________________________
Title: ________________________
10
<PAGE>
(ALL SIGNATURES SHALL BE ACKNOWLEDGED BEFORE A NOTARY PUBLIC. EXECUTION ON
BEHALF OF ANY CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.)
EAGLE MOUNTAIN RECLAMATION, INC.,
a Delaware corporation
By: ___________________________
Title: ________________________
By: ___________________________
Title: ________________________
(ALL SIGNATURES SHALL BE ACKNOWLEDGED BEFORE A NOTARY PUBLIC. EXECUTION ON
BEHALF OF ANY CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.)
11
<PAGE>
KAISER VENTURES INC.,
a Delaware corporation
By: ________________________
Title: ________________________
By: ________________________
Title: ________________________
(ALL SIGNATURES SHALL BE ACKNOWLEDGED BEFORE A NOTARY PUBLIC. EXECUTION ON
BEHALF OF ANY CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.)
14
<PAGE>
EAGLE MOUNTAIN RECLAMATION, INC.,
a Delaware corporation
By: ___________________________
Title: ________________________
By: ___________________________
Title: ________________________
(ALL SIGNATURES SHALL BE ACKNOWLEDGED BEFORE A NOTARY PUBLIC. EXECUTION ON
BEHALF OF ANY CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.)
13
<PAGE>
KAISER EAGLE MOUNTAIN, INC.,
a Delaware corporation
By: ___________________________
Title: ________________________
By: ___________________________
Title: ________________________
(ALL SIGNATURES SHALL BE ACKNOWLEDGED BEFORE A NOTARY PUBLIC. EXECUTION ON
BEHALF OF ANY CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.)
12
<PAGE>
KAISER VENTURES INC.,
a Delaware corporation
By: _______________________________
Title: ____________________________
By: _______________________________
Title: ____________________________
(ALL SIGNATURES SHALL BE ACKNOWLEDGED BEFORE A NOTARY PUBLIC. EXECUTION ON
BEHALF OF ANY CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.)
14
<PAGE>
COUNTY: COUNTY OF RIVERSIDE, a political
- ------ subdivision of the state of
California
By: ____________________
Chairman, Board of Supervisors
ATTEST:
GERALD A. MALONEY, Clerk of the Board
By:_________________________
Deputy
(SEAL)
10
<PAGE>
Development Agreement No. 64
EXHIBIT "G"
Recorded at request of and return to:
County Counsel
3535 Tenth Street, Room 300
Riverside, California 92501
FREE RECORDING
This instrument is for the benefit of
the County of Riverside, and is
entitled to be recorded without fee.
(Govt. Code 6103)
Project: EAGLE MOUNTAIN LANDFILL
QUITCLAIM DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the
COUNTY OF RIVERSIDE, a political subdivision, hereby REMISES, RELEASES AND
QUITCLAIMS to MINE RECLAMATION CORPORATION, a California corporation, the
airspace above the real property in the County of Riverside, State of
California, described in Exhibit "A" attached to Development Agreement No. 64, a
copy of which exhibit is attached hereto as Exhibit "A" and made a part hereof.
Dated:
COUNTY OF RIVERSIDE
By: __________________________________
Chairman, Board of Supervisors
ATTESTED:
GERALD A. MALONEY
Clerk, Board of Supervisors
By:___________________________
Deputy
<PAGE>
Development Agreement No. 64
Exhibit "H"
Board of Supervisors County of Riverside
- -------------------- -------------------
RESOLUTION NO. 97-
---------------------
ENVIRONMENTAL MITIGATION TRUST
------------------------------
EAGLE MOUNTAIN LANDFILL
-----------------------
(Development Agreement No. 64)
------------------------------
WHEREAS, Section 4.7.4 of Development Agreement No. 64 requires that the
Board of Supervisors of the County of Riverside establish an Environmental
Mitigation Trust prior to the Effective Date of Development Agreement No. 64;
WHEREAS, Section 4.7.3 of Development Agreement No. 64 provides for
environmental mitigation trust payments to be used for the protection,
acquisition, preservation, and restoration of parks, open space, biological
habitat, scenic, cultural, and scientific resources; to support environmental
education and research; mitigation of the Project's environmental impacts; and
long term monitoring of the above-mentioned items; and
WHEREAS, EIS/EIR No. 397 discusses an Environmental Mitigation Trust, and the
biological opinion issued by the U.S. Fish & Wildlife Service pursuant to the
Section 7 of the federal Endangered Species Act refers to an Environmental
Mitigation Trust;
NOW THEREFORE;
There is herewith established an Environmental Mitigation Trust. All monies
received by the COUNTY pursuant to Section 4.7.3 of Development Agreement No. 64
shall be administered pursuant to the provisions of this Resolution, which shall
be known as the "Environmental Mitigation Trust -- Eagle Mountain Landfill."
The term "Trust" when used in this Resolution shall mean the "Environmental
Mitigation Trust -- Eagle Mountain Landfill."
1. This Trust is established pursuant to the provisions of Sections 4.7.3
and 4.7.4 of Development Agreement No. 64. Funds deposited into this Trust are
being paid to the COUNTY pursuant to the provisions of Sections 4.7.3 and 4.7.4
of Development Agreement No. 64 as a partial mitigation measure for the
potential environmental consequences of the Project impacts. Funds deposited in
the Trust shall be dedicated to the protection, acquisition, preservation, and
restoration of parks, open space, biological
1
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habitat, scenic, cultural, and scientific resources; to support environmental
education and research; mitigation of the Project's environmental impacts; and
long term monitoring of above-mentioned items.
2. Pursuant to the provisions of Section 4.7.3 of Development Agreement
No. 64, County shall hold in trust the sum of ninety cents ($0.90) per ton for
each ton of waste actually deposited at the Landfill. In addition, commencing
on January 1 of the tenth (10th) year after that year in which total non-
hazardous municipal solid waste disposed at the Landfill reaches the maximum
annual amount of non-hazardous municipal solid waste permitted by the County of
Riverside ("Base Year") to be disposed at the Landfill (6,240,000 tons), and on
January 1 of every tenth (10th) year thereafter ("Tenth Anniversary Year"), the
payments set forth herein shall be modified to an amount calculated as follows:
The then current Payment multiplied by a fraction, the numerator of which is the
COLA Index amount on January 1 of the then current Tenth Anniversary Year and
the denominator of which is the COLA Index amount on January 1, ten years prior
thereto; provided however, that in no event shall the Payment be less than
ninety cents ($0.90) per ton; and provided further that the increase for the
next succeeding ten year period shall not exceed fifty percent (50%) of the
Payment in effect immediately prior to the increase as calculated pursuant to
this paragraph. The COLA Index shall be the Consumer Price Index for all Urban
Consumers in the Los Angeles-Anaheim-Riverside Areas (1982-1984 = 100),
published by the United State Bureau of Labor Statistics. If the COLA Index
specified herein is discontinued or revised during the term of the Trust, such
other governmental index or computation with which it is replaced shall be used
in order to obtain substantially the same result as would have been obtained if
the COLA Index had not been discontinued.
3. In order to accomplish the goals of the Trust, at least eighty (80%) of
the funds deposited in the Trust shall be used in the following areas:
(i) Joshua Tree National Park Inholdings and Buffers. This area
------------------------------------------------
consists of private Inholdings located within Joshua Tree National Park.
Notwithstanding the foregoing, the payments by OWNER to the National Park
Foundation pursuant to the agreement between OWNER and the National Park
Service is intended to be utilized for this purpose, among others, and
therefore, only in extraordinary circumstances should funds be allocated from
this Trust for such purposes.
(ii) Chuckwalla Bench/Desert Tortoise Habitat Area. This area is
---------------------------------------------
generally bounded on the west by the Orocopia Mountains, on the north by the
Eagle Mountains, on the south by the Chocolate Mountains, and on the east by
the Chuckwalla
2
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Mountains.
(iii) Northwest Foothills of the San Jacinto Mountains. This area is
------------------------------------------------
generally bounded on the west by Highway 79, on the north by Toe of Slope and
on the east by the San Bernardino National Forest boundary.
(iv) Snow Creek Habitat Area and Wildlife Corridor. This area is
---------------------------------------------
generally bounded on the west by the Santa Rosa Mountains National Scenic
Area boundary, on the south by the San Bernardino National Forest boundary,
on the north by the Whitewater Wilderness Study area, and on the east by the
Windy Point area.
(v) Whitewater River and Mission Creek. This area is generally
----------------------------------
bounded on the west by the San Bernardino National Forest, on the south by
Interstate Highway 10, on the north by Big Morongo Creek, and on the east by
Highway 62.
(vi) Morongo Canyons. This area is generally bounded on the west by
---------------
Highway 62 and Big Morongo Canyon, on the north by Little Morongo Canyon, on
the south by Toe of Slope, and on the east by Joshua Tree National Park.
(vii) Santa Rosa Mountains National Scenic Area. This area is
-----------------------------------------
generally bounded on the west by the San Bernardino National Forest boundary,
on the south by the ridge line, on the north by Toe of Slope, and on the east
by the County line.
(viii) Indio Hills. This area generally consists of the Coachella
-----------
Valley, Willow Hole and Edom Hill Preserves and one or more wildlife and sand
transport corridors linking the Indio Hills with the Little San Bernardino
Mountains.
(ix) Mecca Hills. This area is generally bounded on the west and
-----------
south by the Coachella Canal, on the north by Interstate Highway 10, and on
the east by Meccacopia Road (between Box Canyon and the Orocopia Mountains).
(x) Orocopia Mountains. This area is generally bounded on the west by
------------------
Meccacopia Road, on the north by Interstate Highway 10, on the south by the
Coachella Canal and Salt Creek, and on the east by the Chuckwalla
Bench/Desert Tortoise Habitat Area.
(xi) Chuckwalla Mountains. This area is generally bounded on the west
--------------------
by the Chuckwalla Bench/Desert Tortoise Habitat Project Area, on the north by
Interstate Highway 10, on the south by the Chocolate Mountains Aerials
Gunnery Range, and on the east by the Little Chuckwalla Mountains.
3
<PAGE>
(xii) Whitewater River Delta. This area encompasses the mouth of the
----------------------
Whitewater River where it empties into the Salton Sea.
(xiii) Salt Creek/Dos Palmas Springs. This area is generally bounded
-----------------------------
on the west by the Salton Sea, on the north by the Coachella Canal, on the
south by the limits of the Salt Creek watershed, and on the east by the
Chocolate Mountains.
(xiv) Multiple Species Habitat Conservation Plan. Areas designated for
------------------------------------------
protection, acquisition and preservation pursuant to any Multiple Species
Habitat Conservation Plan adopted and approved by the Board of Supervisors of
Riverside County.
(xv) Anza Borrego Desert State Park. This area consists of areas
-------------------------------
within the exterior boundaries of the Park, located within Riverside County.
(xvi) Wilderness Areas. Areas within Riverside County designated as
----------------
Wilderness Areas by the Bureau of Land Management, pursuant to the laws of
the United States.
(xvii) Other Projects. The areas listed as items (i) through (xvi)
--------------
shall have the highest priority, provided, however, the Board of Supervisors
may, after consultation with the Advisory Committee, on four-fifths (4/5)
vote of the Board of Supervisors, spend funds in the Trust held pursuant to
this Section 3 on other projects not specifically listed but which are for
the protection, acquisition, preservation, and restoration of parks, open
space, biological habitat, scenic, cultural, and scientific resources and to
support environmental education and research.
4. Accomplishing the goals of the Trust also recognizes that not more than
twenty percent (20%) of the funds deposited in the Trust will be used for other
expenses and costs, including but not limited to: administrative and operational
costs of the Trust and grants or awards to other entities related to the conduct
or development of plans, studies, research (including landfill design and
operation), environmental resource management and education.
5. To assist it in implementing and carrying out the goals of the Trust,
the Board of Supervisors hereby establishes a Trust Advisory Committee for the
purpose of preparing recommendations to the Board of Supervisors on the
expenditure of funds administered pursuant to this Resolution. Within the
funding policies and guidelines as shall be developed by the Board of
Supervisors, the Trust Advisory Committee may develop and implement a grant or
award application procedure for purposes of soliciting, evaluating and
establishing priorities among land acquisition proposals and other
4
<PAGE>
funding and loan requests, and shall then report such recommendations to the
Board of Supervisors. The Trust Advisory Committee shall also make
recommendations regarding annual expenditures and long term funding priorities
from time to time as requested by the Board of Supervisors.
6. The Trust Advisory Committee shall be appointed by the Board of
Supervisors every four years and shall consist of the following individuals,
all of whom shall be residents of Riverside County:
(1) Two (2) members of the Board of Supervisors of Riverside County,
California;
(2) Two (2) citizens appointed by the Board of Supervisors one of whom
shall be a Native American;
(3) One (1) citizen nominated by The Nature Conservancy;
(4) One (1) citizen nominated by The Sierra Club;
(5) One (1) citizen nominated by The Coachella Valley Mountains
Conservancy; and
(6) One (1) citizen nominated by The Desert Protective Council.
In addition, each of the following organizations shall be entitled to the
appointment of one representative to the Trust Advisory Committee: The
California Department of Fish and Game; The United States Department of the
Interior, Fish and Wildlife Service; The United States Department of the
Interior, Bureau of Land Management; The United States Department of the
Interior, National Park Service; and the University of California Natural
Reserve System. Representatives or citizens to be appointed by entities,
including the Board of Supervisors, shall be selected by such entities in their
discretion, but each person must nevertheless be appointed by the Board of
Supervisors.
Vacancies on the Trust Advisory Committee shall be filled for the unexpired
portion of the term in the same manner as provided in the case of original
appointment.
7. The Trust Advisory Committee shall meet at least annually and more
frequently as shall be determined by such Committee within those directives,
rules and regulations as the Board of Supervisors may adopt from time to time.
The Board of Supervisors shall also designate the quorum and voting requirements
for the Advisory Committee with respect to those matters, which come before such
Committee. To the extent feasible, the Committee shall endeavor to operate by
consensus.
5
<PAGE>
8. The day to day operations and administration of this Trust shall be
with the County Executive Officer. All expenditures from this Trust must be
approved by the County Executive Officer and the County Executive Officer shall
annually file a report on all income and expenditures to the Board of
Supervisors.
9. The Board of Supervisors may, at any time, amend this Resolution so
long as the amendment[s] is [are] consistent with the provisions of Section
4.7.3 of Development Agreement No. 64.
6
<PAGE>
Development Agreement No. 64
EXHIBIT "I"
CERTIFICATE OF AGREEMENT COMPLIANCE
-----------------------------------
RECORDING REQUESTED BY
CLERK, BOARD OF SUPERVISORS,
RIVERSIDE COUNTY
WHEN RECORDED RETURN
TO:
General Counsel
Mine Reclamation Corporation
__________________________
__________________________
- --------------------------------------------------------------------------------
CERTIFICATE OF AGREEMENT COMPLIANCE
-----------------------------------
THIS CERTIFICATE OF AGREEMENT COMPLIANCE is executed this _____ day of
__________, ____, by the COUNTY OF RIVERSIDE, a political subdivision of the
State of California, hereinafter called "COUNTY," pursuant to Section 6.7 of
that certain Development Agreement No. 64 ("Development Agreement") entered into
by and between COUNTY, MINE RECLAMATION CORPORATION, a California corporation,
and KAISER EAGLE MOUNTAIN, INC., a Delaware corporation, who, together with its
assignees and successors-in-interest under the Development Agreement is
hereinafter referred to as "OWNER."
1. COUNTY, MINE RECLAMATION CORPORATION and KAISER EAGLE MOUNTAIN, INC.
previously entered into Development Agreement No. 64, which was approved by the
COUNTY on ___________, 19__.
2. Pursuant to Section 6.7 of the Development Agreement, COUNTY hereby
certifies as follows, as of the date of this Certificate:
a. A _____ Review [STATE WHETHER PERIODIC OR SPECIAL] has been
undertaken by COUNTY pursuant to Section 6 of the Development Agreement. As a
result of such review, and based upon the information known by or made known to
the COUNTY Board of Supervisors, the COUNTY hereby finds, determines and
certifies that:
(1) The Development Agreement is in full force and effect.
1
<PAGE>
(2) OWNER is not in default under the Development Agreement, and
OWNER is in compliance with the Development Agreement in all
material respects.
(3) It is anticipated that the next Periodic Review under the
Development Agreement will be commenced on or about
________.
(4) This Certificate may be recorded, and may be relied upon by
OWNER or any party or entity.
COUNTY OF RIVERSIDE
By:___________________________
Chairman, Board of
Supervisors
ATTEST:
GERALD A. MALONEY
Clerk of the Board
By:____________________
Deputy
(SEAL)
2
<PAGE>
Development Agreement No. 64
EXHIBIT "J"
MRC LETTER OF CREDIT
--------------------
_________________________
[date]
County of Riverside
4080 Lemon Street
Riverside, CA 92501
Gentlemen:
We hereby open our Irrevocable Standby Letter of Credit No. ("LETTER OF
CREDIT") in your favor for the account or benefit of Mine Reclamation
Corporation, Kaiser Eagle Mountain, Inc., Kaiser Reclamation, Inc. and Kaiser
Ventures, Inc., Attention: Mr. James F. Verhey, 3633 E. Inland Empire Blvd.,
Suite 850, Ontario, California, 91764, for the sum not exceeding
__________________ U.S. Dollars (U.S. _____________) available by your sight
draft on [BANK NAME] and accompanied by all documents specified below:
1. A certified statement signed by a duly authorized official of the
County of Riverside stating that:
"I, a duly authorized official of the County of Riverside
("THE COUNTY"), certify that the draft which accompanies this statement has
been prepared and is presented in accordance with the Indemnification
Agreement among the County of Riverside, Mine Reclamation Corporation, Kaiser
Eagle Mountain, Inc., Kaiser Reclamation, Inc. and Kaiser Ventures, Inc.,
dated _____________ ("THE AGREEMENT").
2. For any draft which in itself or in combination with previous drafts,
consumes the remaining balance of the Letter of Credit, the original Letter of
Credit.
All drafts must bear the clause "Drawn under [BANK NAME] Letter of Credit
No. _______ dated ___________________."
We hereby engage with drawers, endorsers, and bona fide holders that all
drafts drawn in compliance with the terms of this credit shall be duly honored
upon presentation and delivery of the documents at our offices located at
[ADDRESS] on or before [EXPIRATION DATE] or any other expiration date provided
herein, whichever comes first. If a draft is presented that does not conform in
its entirety to the terms and conditions of this Letter of Credit, we shall
notify you promptly, state
1
<PAGE>
the reasons the draft does not conform and you may attempt to correct any such
nonconforming draft to the extent you are entitled and able to do so. This
Letter of Credit shall remain in full force and effect for a period of one (1)
year from the date hereof and shall automatically renew itself from year-to-year
for one (1) year periods thereafter unless and until [BANK NAME] shall give at
least one hundred twenty (120) days prior written notice to the County of
Riverside and Mine Reclamation Corporation, by certified mail, return receipt
requested, that it elects not to renew Letter of Credit No. ___________ at the
end of the one-year term then in effect. During said one hundred twenty (120)
days notice period, this Letter of Credit shall remain in full force and effect.
If we elect not to renew this Letter of Credit for any subsequent year and so
notify you at least one hundred twenty (120) days prior to such expiration, and
you determine that this Letter of Credit has not been replaced with a Letter of
Credit from another financial institution or other acceptable financial
assurance; then during the last thirty (30) days while the Letter of Credit is
in full force and effect, you may draw up to the full amount of the Letter of
Credit, less any prior drafts presented by you and paid by us, when accomplished
by a certified statement signed by a duly authorized official of the County of
Riverside stating that:
"I, a duly authorized official of the County of Riverside, certify that (1)
a reasonably acceptable substitute Irrevocable Standby Letter of Credit or
other reasonably acceptable financial assurance has not been provided at
least thirty (30) days prior to the current expiration date, and (2) the
monies will be held for the sole purpose of securing the obligations of
Mine Reclamation Corporation, Kaiser Eagle Mountain, Inc., Kaiser
Reclamation, Inc. and Kaiser Ventures, Inc. under the terms of
Indemnification Agreement Between the County of Riverside dated
____________.
This Irrevocable Standby Letter of Credit is effective as of [DATE].
If at any time during the term of this Letter of Credit the credit rating
of [BANK NAME] falls below B+, as determined by Standard & Poor's or Moody's
rating service, then [BANK NAME] shall immediately notify the County of
Riverside, Mine Reclamation Corporation, Kaiser Eagle Mountain, Inc., Kaiser
Reclamation, Inc. and Kaiser Ventures, Inc. of such change, by certified mail,
return receipt requested.
This Letter of Credit shall be governed by the laws of the State of
California, and any litigation involving this Letter of Credit shall be brought
in the courts of that State. Except so far as otherwise expressly stated, this
Letter of Credit is subject to Publication No. 500 of the Uniform Customs and
Practices for Documentary Credits (1993 Revision), International Chamber of
Commerce (Publication No. 500).
Very truly yours,
_______________________________
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<PAGE>
Development Agreement No. 64
EXHIBIT "K"
GUARANTEE AGREEMENT
-------------------
THIS GUARANTEE AGREEMENT ("GUARANTEE") is made by __________________ a
______________ ("GUARANTOR"), to the County of Riverside, a political
subdivision of the State of California ("COUNTY"), with reference to the
following facts:
RECITALS:
A. County and Mine Reclamation Corporation, a California corporation,
Kaiser Eagle Mountain, Inc., a Delaware corporation, Eagle Mountain Reclamation,
Inc., a Delaware corporation, and Kaiser Ventures Inc., a Delaware corporation
(collectively, "OWNER"), have entered into that certain Development Agreement
No. 64 ("DEVELOPMENT AGREEMENT"), providing for the development by the Owner of
the Property described therein, and having an effective date as set forth
therein.
B. Owner has agreed under the terms of the Development Agreement to cause
Guarantor effective as of the Start Up of Operations (as that term is defined in
the Development Agreement), which date is also the effective date hereof, to
enter into and provide this Guarantee to assure the full payment of amounts
recoverable by the County pursuant to Sections 9.2 (Third Party Litigation
Concerning Agreement), 9.3 (Owner Indemnity), 9.5 (Additional Owner Indemnity),
9.7 (Environmental Impairment and Damage), and 9.8 (Emergencies) of the
Development Agreement.
NOW, THEREFORE, to induce the County to enter into the Development
Agreement, and for other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. GUARANTEE. Guarantor hereby absolutely and unconditionally guarantees
to the County, the full and complete payment, as and when the same becomes due,
of any amounts payable in accordance with and pursuant to Sections 9.2, 9.3,
9.5, 9.7 and 9.8 (each a "guaranteed event," as defined in Section 2 below) of
the Development Agreement, subject only to the terms and conditions contained
herein and the Development Agreement.
2. PER OCCURRENCE AMOUNT OF GUARANTEE. Notwithstanding anything in this
Guarantee to the contrary, the maximum amount guaranteed by Guarantor under this
Guarantee shall not, in the aggregate, commencing on the effective date hereof
[Start Up of Operations], exceed the maximum amount of ten million dollars
($10,000,000) for any single guaranteed event (as defined herein below) at any
one time. The guarantee shall remain in effect until terminated as provided in
the Development Agreement.
This Guarantee is intended to be continuing, but the aggregate amount of
the Guarantee available to be drawn against or claimed in connection with each
guaranteed event or occurrence giving rise to Guarantor's obligations shall be
limited to the maximum amount ($10 million), which maximum amount is subject to
adjustment pursuant to Section 9.9.7 of the Development
1
<PAGE>
Agreement (Alternative or Substitute Financial Assurances). As used in this
Guarantee, the terms "guaranteed event" and "occurrence" (and the consequences
of such guaranteed event or occurrence) are intended to have the same meaning as
is customarily used in the insurance industry to determine and limit the scope
of coverage for any particular claim arising from a covered event or occurrence.
Notwithstanding anything herein to the contrary, the maximum amount of the
Guarantee shall be promptly reinstated to the full maximum amount hereunder ($10
million) upon payment for any guaranteed events as set forth herein.
3. OTHER FINANCIAL ASSURANCES. To the extent that the obligations of
Owner arise out of its failure to perform any act or to do any thing, the
performance of which is secured by any financial assurance held by the County
under the Development Agreement, such financial assurances shall be utilized in
the priority established in Section 9.9.6 of the Development Agreement and
otherwise in accordance with Section 9.9 of the Development Agreement (Financial
Assurances) unless the County, Owner and Guarantor (to the extent this Guarantee
is affected) should otherwise agree in writing, and the obligations of Guarantor
under this Guarantee shall not arise until all such financial assurances have
been utilized or pursued in the priority established in the Development
Agreement or the person or entity holding such financial assurance has failed or
refused to respond in accordance with the terms of the Development Agreement.
4. NOTICE OF ENVIRONMENTAL REMEDIAL ACTION. Except in the case of
emergency where delay would have a substantial adverse impact upon the health,
safety or welfare, in the event the County intends to take any environmental
remedial action for which it intends to seek recovery or payment from Guarantor
pursuant to this Guarantee, the County shall first give at least sixty (60) days
written notice to Guarantor of its intention to take an environmental remedial
action, the entity or contractor which shall be responsible for the remedial
action, the estimated cost of the remedial action, and the likely duration of
such remedial action. Guarantor may, at its sole option, agree to undertake the
remedial action so described by notifying the County in writing before the
expiration of the 60 day notice period. In the event Guarantor elects to
undertake the environmental remedial action, that action must be undertaken
within a reasonable period of time and must not increase the danger to public
health, safety and welfare, and Guarantor must provide reasonable assurances
that its environmental remedial action will accomplish the same goals which were
to be accomplished by the environmental remedial action of the County. Provided
that the undertaking and performance of the remedial action by Guarantor is
reasonable under the circumstances, or such undertaking is approved in advance
by the County, then the costs expended by Guarantor for such remediation shall
be applied against and reduce the amount of the Guarantee available for the
guaranteed event or occurrence (as defined in Section 2 above) which gave rise
to the need for such remediation; however, it shall not reduce or limit
Guarantor's obligations under this Guarantee for other unrelated events or
occurrences.
5. NOTICE OF CLAIM; WRONGFUL OR IMPROPER CLAIM OR DRAW ON GUARANTEE BY
COUNTY. No action shall be commenced to collect any sums becoming due under
this Guarantee until the County has given Guarantor sixty (60) days written
notice of the amount due hereunder, specifying the nature and amount of the
obligation.
County agrees that in the event (i) County makes a claim or draw on this
Guarantee without just cause, i.e., Owner is not in breach of any of its
obligations secured by this Guarantee
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under the Development Agreement, or (ii) County makes a claim or draw on this
Guarantee in violation of the priority provisions of Section 9.9.7 of the
Development Agreement (Priority of Use of Financial Assurances), then County
shall immediately reimburse to Guarantor the principal amount, if any,
wrongfully or improperly drawn on this Guarantee and immediately reimburse to
Owner and Guarantor all of Owner's and Guarantor's reasonable costs, expenses
and fees (including without limitation attorneys' fees) incurred in connection
with such wrongful or improper claim or draw, together with interest on all such
amounts (including the principal amount of the draw) at the then highest lawful
rate.
6. WAIVERS BY GUARANTOR/NO IMPAIRMENT. Unless otherwise agreed by
Guarantor and County, Guarantor hereby expressly waives notice of acceptance of
this Guarantee, presentment, protest, dishonor, nonpayment and the creation,
renewal, extension, modification or accrual of any of the obligations guaranteed
as well as notice and diligence in collection, and further agrees that its
liability hereunder shall not be diminished, released, impaired, reduced or
affected by:
6.1 TAKING OF OTHER SECURITY. The taking or accepting by the County
of any other security or guarantee for any or all of the obligations of Owner
covered by this Guarantee;
6.2 RELEASE OF OTHER SECURITY. The release, withdrawal, waiver,
surrender, exchange, substitution, subordination, loss or other modification of
any other security or guarantee existing in connection with any or all the
obligations of Owner covered by this Guarantee;
6.3 MODIFICATION OF OBLIGATIONS. The extension, modification, or
consolidation of the payment of any or all the obligations of Owner covered by
this Guarantee, or any adjustment, indulgence, forbearance or compromise that
may be granted or given by the County to Owner with respect to such obligations;
6.4 ACTION AGAINST OWNER. The negligence, delay, omission, failure
or refusal of County to take or prosecute any action for the collection of any
obligation covered by this Guarantee against Owner or Guarantor.
It being specifically agreed, however, the obligations of Guarantor
hereunder shall not be increased without the prior written consent of Guarantor.
The obligations of Guarantor hereunder are independent of the obligation of
Owner. Upon any failure of Owner to pay the amounts guaranteed by this
Guarantee, the County may, at its option and subject to and in compliance with
Sections 3 and 5 of this Guarantee, proceed directly and at once against
Guarantor to collect and recover the full amount hereby guaranteed, or any
portion thereof, without first proceeding against Owner. Guarantor hereby
waives any right other than as set forth in Section 3 of this Guarantee to
require County to proceed against Owner or any other person, or to pursue any
other remedy. Suit on this Guarantee may be joined with suit on the obligation
against Owner, or may be brought prior to, concurrently with or subsequent to
any such suit, or without the bringing of any such suite.
Guarantor hereby assumes sole responsibility for keeping fully informed of
the financial condition of Owner and all other circumstances concerning Owner's
performance or ability to perform its obligations to County, and agrees that
County will have no duty to report to Guarantor
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any information that the County may receive about Owner's financial condition or
performance or ability to perform under this Guarantee.
Guarantor hereby waives all rights and benefits under California Civil Code
Sections 2819, 2810, 2809, 2845, 2847, 2848, 2849 and 2850.
The foregoing provisions of this Section 6 shall not, and are not intended
to be interpreted to, waive or otherwise affect the County's obligations under
Section 9.9 of the Development Agreement pertaining to notice, priority of use
of financial assurances, alternative or substitute financial assurances, or
wrongful claims or draws or the County's obligations pursuant to this Guarantee.
7. TERM. This Guarantee shall remain in full force and effect until
terminated as provided in the Development Agreement or until the County gives
its written consent to such termination.
8. FINANCIAL STATUS OF GUARANTOR. At all times during the term of this
Guarantee, and regardless of whether the amount of this Guarantee is reduced
from time to time pursuant to Sections 9.9.5(c) or 9.9.7 of the Development
Agreement, this Guarantee Agreement, or otherwise with the County's written
consent, at that time Guarantor must have either (i) a long-term senior
unsecured debt rating of B+ or better as determined by Standard and Poor's
Corporation ("S&P") or Moody's Investors Service ("MOODYS"), OR (ii) a tangible
net worth (as defined in Section 9.9.4(b) of the Development Agreement) equal to
at least One Hundred Million Dollars ($100,000,000.00). Accordingly, if at any
time during the term of this Guarantee, both (i) Guarantor's credit rating is
below B+ (or Guarantor is unrated) AND (ii) Guarantor's tangible net worth is
less than $100,000,000.00, then, as provided in Section 9.9.4(b) of the
Development Agreement, within ninety (90) days of becoming aware of such
circumstance OWNER shall provide for adequate substitute or additional financial
assurance(s) pursuant to Section 9.9.7 of the Development Agreement or as
otherwise agreed to in writing by County.
Within one hundred twenty (120) days after the end of each fiscal year of
Guarantor during the term of this Guarantee, Guarantor shall provide to the
County certification from a nationally recognized public accounting firm that
Guarantor has the required level of tangible net worth (or required debt
rating).
9. SUBSTITUTION OF OTHER FINANCIAL ASSURANCES. Guarantor or Owner may,
at any time during the term of this Guarantee, and with the consent of the
County, which consent shall not be unreasonably withheld, substitute a different
financial assurance for all or a portion of this Guarantee subject to the terms
and restrictions specified in Section 9.9.7 (Alternative or Substitute
Financial Assurances) of the Development Agreement. If a portion of this
Guarantee is replaced by a substitute financial assurance pursuant to Section
9.9.7, thus reducing the amount of this Guarantee accordingly, or the amount of
this Guarantee is reduced pursuant to Section 9.9.5(c) of the Development
Agreement (Financial Assurances Fund), then this Guarantee shall remain in full
force and effect as to the remaining amount of the Guarantee (i.e., that portion
not replaced or reduced).
10. SALE OF OWNERSHIP INTEREST IN OWNER. The sale, exchange, modification
of an ownership position, or other disposition of its ownership interest in
Owner shall
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not diminish, reduce, impair, release or in any other way affect the guarantee
obligations of Guarantor under this Guarantee, unless and until the County has
specifically and in writing released Guarantor from its obligations hereunder.
11. NOTICES. Any and all notices between the parties hereto provided for
or permitted hereunder shall be in writing and shall be deemed duly served when
personally delivered to the recipient named below, or in lieu of such personal
service, on the date of delivery shown on the return receipt, after deposit in
the United States mail in a sealed envelope as wither registered or certified
mail with return receipt requested, and postage and postal charges prepaid, and
addressed to the recipient named below, or on the date of delivery shown in the
records of the telegraph company after transmission by telegraph to the
recipient named below. All notices shall be addressed as follows:
TO THE COUNTY: Clerk of the Board of Supervisors
County of Riverside
P.O. Box 1147
Riverside, California 92502-1147
WITH COPY TO: County Counsel, County of Riverside
3535 Tenth Street, Suite 300
Riverside, California 92501
TO GUARANTOR: ----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
WITH COPY TO: Mine Reclamation Corporation
43-645 Monterey Avenue, Suite A
Palm Desert, CA 92260
Kaiser Eagle Mountain, Inc.
Eagle Mountain Reclamation, Inc.
Kaiser Ventures Inc.
3633 E. Inland Empire Blvd., Suite 850
Ontario CA 91764
12. MISCELLANEOUS PROVISIONS.
12.1 INCORPORATION OF DEVELOPMENT AGREEMENT; INTEGRATION. This
Guarantee was prepared as an exhibit to the Development Agreement, and the terms
of that Development Agreement are incorporated herein by reference. In the
event of a conflict between the terms of this Guarantee and the Development
Agreement, the Development Agreement shall control. Together with the
Development Agreement, this Guarantee embodies the entire agreement among the
parties hereto with respect to any matter, and supersedes any and all prior
agreements among the parties, if any, with respect to any matter. No course of
prior dealing among the parties, no usage of trade, and no parol or extrinsic
evidence of any nature shall be used to supplement, modify or vary any of the
terms hereof. There are no conditions to the full effectiveness (i.e.,
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binding nature) of this Guarantee.
12.2 GOVERNING LAW. This Guarantee and any dispute arising hereunder
shall be governed and interpreted in accordance with the laws of the State of
California, and any litigation involving this Guarantee shall be brought in the
courts of that State.
12.3 SECTION HEADINGS. All section headings and subheadings are
inserted for convenience only and shall not affect any construction or
interpretation of this Guarantee.
12.4 NO THIRD PARTY BENEFICIARIES. This Guarantee is made and entered
into for the sole protection and benefit of the parties and their successors and
assigns, and no other person shall have any right of action based upon any
provision of this Guarantee.
12.5 ATTORNEYS' FEES. Should legal action or other proceedings be
brought by either party for breach of this Guarantee or to enforce or interpret
an provision hereof, the prevailing party in such action or proceeding shall be
entitled to reasonable attorneys fees, court costs, and other litigation
expenses, including without limitation, expenses incurred for preparation and
discovery.
12.6 AMENDMENT. Except as otherwise provided in Sections 9.9.5(c) and
9.9.7 of the Development Agreement, this Guarantee may be waived, modified or
amended only by writing signed by both of the parties.
IN WITNESS WHEREOF, ______________________ has executed this Guarantee and
made it effective, and the County has accepted this Guarantee, on the effective
date as herein above set forth.
[signatures on next page]
"GUARANTOR"
a ______________________________________
By: ____________________________________
Its:____________________________________
"COUNTY"
COUNTY OF RIVERSIDE
a political subdivision of the State of California
By: ____________________________________
Its:____________________________________
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PROMISSORY NOTE
$1,443,094.00 September 30, 1997
For value received, MCLEOD PROPERTIES, FONTANA LLC, A CALIFORNIA LIMITED
LIABILITY COMPANY (the "BORROWER"), hereby promises to pay to the order of
Kaiser Ventures Inc., a Delaware corporation (the "LENDER"), at 3633 E. Inland
Empire Blvd., Suite 850, Ontario, California 91764 or at such other place as
Lender may designate from time to time in writing, the principal amount of ONE
MILLION FOUR HUNDRED FORTY-THREE THOUSAND, NINETY-FOUR DOLLARS together with
interest as specified herein on the outstanding principal amount on the dates
and in the amounts as specified below. The within Note is secured by that
certain Subordinated Deed of Trust, Assignment of Leases and Rents and Security
Agreement dated concurrently herewith by and between Borrower, Lender and
Chicago Title Insurance Company as Beneficiary (the "DEED OF TRUST"). Terms
defined in the Deed of Trust and not otherwise defined herein are used herein as
therein defined.
The Borrower promises to pay interest at the rate of ten percent (10%) per
annum on the unpaid principal amount of this Note from the date hereof until
such principal amount is paid in full. If and so long as an Event of Default
has occurred and is continuing, Borrower will pay interest, on demand, on the
unpaid principal amount from the date on which the Event of Default first
occurred, until such Default is cured at a rate of fifteen percent (15%) per
annum.
Both principal and interest hereunder are payable to the Lender in lawful
money of the United States of America and in immediately available funds, as
follows:
(a) Interest on the first Five Hundred Thirty-Three Thousand Seven
Hundred Sixty Dollars ($533,760.00) of the principal amount shall be paid
monthly in arrears, beginning thirty days from the date hereof.
(b) Principal on the first Five Hundred Thirty-Three Thousand Seven
Hundred Sixty Dollars ($533,760.00) of the principal amount shall, at a minimum,
be paid in nine equal monthly installments of Fifty-Nine Thousand Three Hundred
Seven Dollars ($59,307.00), beginning thirty days from the date hereof.
(c) Interest on the remaining Nine Hundred Nine Thousand, Three Hundred
and Thirty-Four Dollars ($909,334.00) of the principal amount shall be paid
quarterly in arrears, except that interest shall not accrue and be payable
during the first seven months from the date hereof except upon the occurrence of
any Except of Default.
(d) Principal on the remaining Nine Hundred Nine Thousand, Three Hundred
Thirty-Four Dollars ($909,334.00) of the principal amount shall be paid Twenty-
Five Thousand Dollars ($25,000.00) quarterly except that the first principal
payment shall be due seven months from the date hereof.
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<PAGE>
(e) All remaining principal and interest shall be due seven years from
the date hereof. Borrower may prepay at any time prior to maturity, without
penalty, all or any portion of the principal.
This Note is the "Note" referred to in, and is entitled to the benefits of
the Deed of Trust. The Deed of Trust contains, among other things, provisions
for acceleration of the maturity hereof upon the happening of certain stated
events, including the failure to timely pay this note in accordance with its
terms, and also for prepayments of principal hereof before the maturity hereof,
upon the terms and conditions specified therein.
The Deed of Trust provides in part as follows:
"Restrictions Upon Transfer. In the event that the interest of Trustor in
------- --
the Property, or any part thereof, or any interest therein, is sold, agreed
to be sold, conveyed, encumbered, alienated or otherwise transferred by
Trustor whether by operation of law or otherwise, the Note, irrespective of
the maturity dates expressed therein, at the option of Beneficiary, and
without demand or notice, shall immediately become due and payable. In the
event that Beneficiary does not elect to declare the Note immediately due
and payable, then, unless indicated otherwise in writing by Beneficiary,
Trustor shall nevertheless remain primarily liable for the obligations
hereunder and under the Note and any other instrument securing the Note.
This provision shall apply to each and every sale, transfer, encumbrance or
conveyance, regardless whether or not Beneficiary has consented to, or
waived, Beneficiary's rights hereunder, whether by action or nonaction in
connection with any previous sale, transfer or conveyance. For the purposes
hereof, any change in the identity, structure, management, nature or
control of Trustor, whether by way of a change in the identity of any
shareholder of Trustor or a change in the ownership or control of Trustor
or any shareholder of Trustor, by merger or otherwise, shall be deemed a
sale hereunder."
The Deed of Trust contains a Subordination provision, pursuant to which the
Deed of Trust may become subject to and of lower priority than other security
instruments.
The Borrower, any and all guarantors and sureties of this Note and all
other Persons liable or to become liable on this Note severally waive
presentment for payment, demand, notice of demand and of dishonor and nonpayment
of this Note, notice of intention to accelerate the maturity of this Note,
protest and notice of protest, diligence in collecting, and the bringing of suit
against any other party, and agree to all renewals, extensions, modifications,
partial payments, releases and substitutions of security, in whole or in part,
with or without notice, before or after maturity. The pleading of any statute
of limitations as a defense to any demand against the makers, guarantors and
sureties hereof is expressly waived by all such parties to the extent permitted
by law.
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The term "BORROWER" and "LENDER" shall be construed to include their
respective successors, subsequent holders and assignees.
This Note shall be enforceable in accordance with the laws of the State of
California and shall be construed in accordance therewith.
MCLEOD PROPERTIES, FONTANA LLC,
A CALIFORNIA LIMITED LIABILITY
COMPANY
By: /s/ Vincent M. McLeod, Jr.
--------------------------
Its: Manager
--------------------------
<PAGE>
JOINT AND SEVERAL GUARANTY
OF
V. M. MCLEOD AND BUDWAY ENTERPRISES, INC.
This JOINT AND SEVERAL GUARANTY AGREEMENT ("GUARANTY") is made
effective as of the 30/TH/ day of September, 1997 by V.M. McLeod and Budway
Enterprises, Inc. (collectively "GUARANTOR") in favor of Kaiser Ventures Inc.
("KAISER").
RECITALS
A. McLEOD PROPERTIES, FONTANA LLC, a California limited liability
company ("BUYER") desires to enter into a Purchase Agreement and Escrow
Instructions with Kaiser dated effective April 9, 1997, (the "AGREEMENT")
pursuant to which Buyer will purchase certain real property from Kaiser. As
part of the Agreement, Kaiser has agreed to finance part of the purchase price
in a promissory note secured by a subordinated deed of trust ("PURCHASE
FINANCING").
B. Guarantor has a direct or indirect financial interest in Buyer.
C. As a condition precedent to Kaiser entering into the Agreement,
Kaiser has required Buyer obtain the execution of this Guaranty by each
Guarantor and each Guarantor is willing to execute this Guaranty upon the term
and conditions set forth herein.
NOW, THEREFORE, in order to induce Kaiser to enter into the Agreement
with Buyer, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Guarantor hereby
unconditionally guarantees and agrees as follows:
1. GUARANTY. Guarantor irrevocably, unconditionally and absolutely
warrants and guarantees that Buyer shall fully, promptly and faithfully perform
and discharge of all obligations, covenants, agreements and duties of Buyer to
Kaiser, pursuant or with respect to the Agreement, any note, deed of trust,
security agreement and any other agreement or instrument given by Buyer to
Kaiser as they shall be amended and supplemented from time to time, including
the payment of all sums now or hereafter to become payable to Kaiser under the
Purchase Financing and the full, prompt and faithful performance of all other
obligations, covenants, agreements and duties of Buyer to Kaiser (collectively
referred to herein as the "GUARANTEED OBLIGATIONS"). This Guaranty is a
continuing guaranty which may not be revoked or terminated by Guarantor. All
Obligations of the Guarantors hereunder shall be joint and several.
2. UNCONDITIONAL GUARANTY. The obligations, covenants, agreements
and duties of Guarantor under this Guaranty shall not be released or impaired in
any manner whatsoever, without the written consent of Kaiser, including, but not
limited to, on account of any or all of the following: (a) any assignment,
endorsement or transfer, in whole or in part, of the Guaranteed Obligations; (b)
any waiver by Kaiser of the performance or observance by Buyer of any of the
agreements, covenants, terms or conditions contained in the Agreement; (c) any
extension of the time for payment or performance of all or any portion of the
Guaranteed Obligations; (d) the renewal, rearrangement, modification or
amendment (whether material or otherwise) of any duty, agreement, covenant or
obligation of Buyer set forth in the Agreement
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or any other provision of the Agreement; (e) the voluntary or involuntary
liquidation, sale or other disposition of all or substantially all of the assets
of Buyer or Guarantor; (f) any receivership, insolvency, bankruptcy,
reorganization or other similar proceedings affecting Buyer or Guarantor or any
of their assets; (g) any release, withdrawal, surrender, exchange, substitution,
subordination or loss of any security or other guaranty at any time existing in
connection with all or any portion of the Guaranteed Obligations, or the
acceptance of additional or substitute property as security therefor; (h) the
release or discharge of Buyer from the observance or performance of any
agreement, covenant, term or condition contained in the Agreement; (i) any
action which Kaiser may take or omit to take pursuant or with respect to the
Agreement or through any course of dealing with Buyer; (j) the addition of a new
guarantor or guarantors; (k) the operation of law or any other cause, whether
similar or dissimilar to the foregoing; (l) any adjustment, indulgence,
forbearance or compromise that may be granted or given by Kaiser to any person;
(m) the failure by Kaiser to file or enforce a claim against the estate (either
in administration, bankruptcy or other proceeding) of Buyer or any other person
or entity; (n) the addition of a new guarantor or guarantees; (o) recovery from
Buyer or any other person or entity becomes barred by any statute of limitations
or is otherwise prevented; (p) any defenses, set-offs or counterclaims which may
be available to Buyer or any other person or entity; (q) any impairment,
modification, change, release or limitation of liability of, or stay of actions
in lien enforcement proceedings against Buyer, its property, or its estate in
bankruptcy resulting from the operation of any present or future provisions of
the Bankruptcy Code or any other similar federal or state statute, or from the
decisions of any court; (r) any neglect, delay, omission, failure or refusal of
Kaiser to take or prosecute any action for the perfection of collateral or the
collection of any of the Guaranteed Obligations or to foreclose or take or
prosecute any action in connection with any lien, right of security for, any of
the Guaranteed Obligations, it being the intention hereof that Guarantor shall
remain fully liable as principal on the Guaranteed Obligations, notwithstanding
any act, omission or thing which might, but for the provisions hereof, otherwise
operate as a legal or equitable discharge of Guarantor; (s) any defense that may
arise by reason of the incapacity or lack of authority hereof, by Buyer or
others; (t) demand, protest and notice of any other kind, including, without
limiting the generality of the foregoing, notice of any action or non-action on
the part of Buyer or Kaiser; (u) any defense asked upon an election of remedies
by Kaiser, including, without limitation, an election to proceed by non-judicial
rather than judicial foreclosure, which destroys or otherwise impairs the
subrogation rights of the Guarantor or the right of the Guarantor to proceed
against Buyer for reimbursement, or both; and (v) any duty on the part of Kaiser
to disclose to the Guarantor any facts it may now or hereafter know about Buyer,
regardless of whether Kaiser has reason to believe that any such facts
materially increase the risk beyond which the Guarantor is obligated or whether
Kaiser has a reasonable opportunity to communicate such facts to the Guarantor,
it being understood and agreed that the Guarantor is fully responsible for being
and keeping informed of the financial condition of Buyer and of all
circumstances bearing on the risk of non-payment or non-performance of the
Guaranteed Obligations.
Guarantor further agrees that nothing contained in this Guaranty shall
prevent Kaiser from suing on the Note or from exercising any rights available to
it thereunder or under any of the Loan Documents, and that the exercise of any
of the aforesaid rights shall not constitute a legal or equitable discharge of
Guarantor. Guarantor understands that the exercise by Kaiser of certain rights
and remedies contained in the Loan Documents may affect or eliminate Guarantor's
right of subrogation against Borrower and that Guarantor may therefore succeed
to
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a partially or totally nonreimbursable liability hereunder; nevertheless,
Guarantor hereby authorizes and empowers Kaiser to exercise, in its sole
discretion, any rights and remedies, or any combination thereof, which may then
be available, since it is the intent and purpose of Guarantor that the
obligations hereunder shall be absolute, independent, and unconditional under
any and all circumstances. Without limiting the generality of the foregoing,
Guarantor expressly waives any and all benefits under California Civil Code
sections 2809, 2810, 2819, 2845, 2849, 2850, and 2855, and California Code of
Civil Procedure sections 580a, 580b, and 580d. Notwithstanding any foreclosure
of the lien of any deed of trust or security agreement with respect to any or
all of any real or personal property secured thereby, whether by the exercise of
the power of sale contained therein, by an action for judicial foreclosure, or
by an acceptance of a deed in lieu of foreclosure, Guarantor shall remain bound
under this Guaranty.
3. REMEDIES AGAINST GUARANTOR. In the event of default by Buyer in
the full, prompt or faithful payment or performance of the Guaranteed
Obligations, or any part thereof, Guarantor shall, upon receipt of notice or
demand, and without any notice having been given to Guarantor of the acceptance
by Kaiser of this Guaranty and without any notice having been given to Guarantor
of the creating or incurring of any indebtedness or the failure of performance,
pay the amount due to Kaiser, at such place as may be designated in writing by
Kaiser, or to cause the performance of the other agreement, condition, covenant
or duty of Buyer. It shall not be necessary for Kaiser, in order to enforce
such payment or performance by Guarantor, first, to institute suit or exhaust
its remedies against Buyer or others that may be liable on or for the Guaranteed
Obligations, or to enforce its rights against any security which shall ever have
been given to secure the Guaranteed Obligations. Guarantor hereby waives any
and all legal requirements that Kaiser institute any action or proceeding at law
or in equity or exhaust its rights, remedies and recourse against any collateral
or the security, Buyer or anyone else with respect to the Guaranteed Obligations
as a condition precedent to bringing an action against Guarantor upon this
Guaranty.
4. SUBORDINATION. Guarantor also hereby waives any claim, right or
remedy which it may now have or hereafter acquire against the Buyer that arises
hereunder and or from the performance by any guarantor hereunder including,
without limitation, any claim, remedy or rights of subrogation, reimbursement,
exoneration, contribution, indemnification, or participation in any claim, right
or remedy of Guarantor against Buyer or any security which Kaiser now has or
hereafter acquires, whether or not such claim, right or remedy arises in equity,
under contract, by statute, under common law or otherwise. Any debt owed to
Guarantor from Buyer or distribution from Buyer to Guarantor are hereby
subordinated to the Guaranteed Obligations.
5. WARRANTIES OF GUARANTOR. Guarantor hereby represents and warrants
to Kaiser that: (a) any and all balance sheets, net worth statements and other
financial data that have heretofore been given to Kaiser with respect to
Guarantor fairly and accurately present the financial condition of Guarantor as
of the date thereof and, since the date thereof, there has been no material
adverse change in the financial condition of Guarantor; (b) there are no
material legal proceedings, claims or demands pending against or, to the
knowledge of such Guarantor, threatened against, Guarantor or any of Guarantor's
assets, or, if there is any such material proceeding, claim or demand, it has
been disclosed in writing to Kaiser and does not and shall not have any material
adverse effect upon the ability of Guarantor to perform any of
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Guarantor's obligations hereunder; (c) Guarantor is not in breach or default of
any legal requirement, contract or commitment, which would have a material
adverse effect on Guarantor or the Guaranteed Obligations; and (d) no event
(including specifically Guarantor's execution and delivery of this Guaranty) has
occurred which, with the lapse of time or the giving of notice or both, could
result in Guarantor's breach or default under any legal requirement, contract or
commitment which would have a material adverse effect on Guarantor or the
Guaranteed Obligations. Guarantor hereby agrees to furnish Kaiser from time-to-
time, promptly upon request therefor, current financial reports and statements
setting forth in reasonable detail the financial condition of Guarantor at the
time of such request, containing such information as Kaiser may reasonably
request, prepared in accordance with generally accepted accounting principles
consistently applied or in other form reasonably acceptable to Kaiser. In
addition, Guarantor shall to Kaiser his most recent Federal income tax returns
with all supporting schedules upon Kaiser's request. Such information shall
remain confidential except as may be necessary to enforce the terms of the
Guarantee.
6. NO NOTICE OF ACCEPTANCE REQUIRED. Notice to Guarantor of the
acceptance of this Guaranty and of the making, renewing, assignment,
modification or amendment of the Guaranteed Obligations and each item thereof,
are hereby expressly waived by Guarantor.
7. PAYMENTS. Any payment on the Guaranteed Obligations shall be
deemed to have been made by Buyer unless express written notice is given to
Kaiser at the time of such payment that such payment is made by Guarantor as
specified in such notice.
8. CHANGES IN SECURITY FOR GUARANTEED OBLIGATIONS. If all or any
part of the Guaranteed Obligations at any time be secured, Guarantor agrees that
Kaiser may at any time and from time to time, at its discretion and with or
without valuable consideration, allow substitution or withdrawal of collateral
or other security and release collateral or other security without impairing or
diminishing the obligations of Guarantor hereunder. Guarantor further agrees
that if Buyer executes in favor of Kaiser any collateral agreement, deed of
trust, mortgage or other security instrument, the exercise by Kaiser of any
right or remedy thereby conferred on Kaiser shall be wholly discretionary with
Kaiser, and that the exercise or failure to exercise any such right or remedy
shall in no way impair this Guaranty. Guarantor further agrees that Kaiser
shall not be liable for its failure to use diligence in the collection or
performance of the Guaranteed Obligations or in preserving the liability of any
person liable on the Guaranteed Obligations, and Guarantor hereby waives
presentment for payment, notice of nonpayment, protest and notice thereof,
notice of acceleration, and diligence in bringing suits against any person
liable on or for the Guaranteed Obligations, or any part thereof.
9. GUARANTOR LIABLE EVEN IF BUYER IS NOT LIABLE. If Buyer is not
liable because in the act of creating the Guaranteed Obligations it acted in
excess of its authority or for any other reason, and for these reasons the
Guaranteed Obligations which Guarantor agrees to pay and/or perform cannot be
enforced against Buyer, such fact shall in no manner affect Guarantor's
liability hereunder, but Guarantor shall be liable under this Guaranty
notwithstanding that Buyer is not liable for the Guaranteed Obligations, and to
the same extent Guarantor would have been liable if the guaranteed Obligations
had been fully enforceable against Buyer.
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10. SUCCESSORS AND ASSIGNS OF KAISER. This Guaranty is for the
benefit of Kaiser, its successors and assigns, and in the event of an assignment
by Kaiser, its successors or assigns, of the Guaranteed Obligations, or any part
thereof, as represented by the Agreement or an interest therein, the rights and
benefits hereunder, to the extent applicable to the Guaranteed Obligations so
assigned, may be transferred with such Guaranteed Obligations.
11. TERMINATION OF GUARANTY. This Guaranty shall be released and
terminated thirteen (13) months after performance and/or payment in full of all
amounts payable pursuant to the terms of the Guaranteed Obligations and on
condition that Buyer has not filed a petition nor been the subject of an
involuntary petition seeking relief under federal bankruptcy laws. In the event
such a petition is filed, this Guaranty shall continue in full force and effect.
If Kaiser is required to disgorge any payment received from Buyer as a
preference, Guarantor shall remain liable for repayment to Kaiser of such
amounts. In the event the Guarantor files a petition in or is the subject of an
involuntary petition seeking relief under federal bankruptcy laws, the aggregate
amount payable by the Guarantor is limited to the largest amount which would not
render this obligation subject to avoidance.
12. PAYMENT OF EXPENSES ASSOCIATED WITH THE AGREEMENT. The Guarantor
agrees to pay to Kaiser, without demand, reasonable attorneys' fees and all
costs and other expenses which it expends or incurs in collecting or
compromising or enforcing the Guaranteed Obligations whether or not suit is
filed.
13. CONSIDERATION. Guarantor acknowledges and warrants that it
derived or expects to derive financial and other advantage and benefit, directly
or indirectly, from the Agreement and accordingly the Guaranteed Obligations and
from each and every renewal extension or other modification. The Guaranteed
Obligations shall conclusively be deemed to have been assumed; contracted or
incurred, as applicable, in reliance on this Guaranty.
14. COSTS OF ENFORCEMENT AND LOCATION OF PROCEEDINGS. If Guarantor
should breach or fail to perform any provision of this Guaranty, Guarantor
agrees to pay Kaiser all costs and expenses (including court costs and
reasonable attorneys' fees) incurred by Kaiser in the enforcement hereof. This
Guaranty is performable in Ontario, California, and Guarantor consents and
agrees that in any suit to enforce his Guaranty, Kaiser may maintain such action
in the courts of the State of California, and Guarantor waives any right to
otherwise object to such jurisdiction.
15. ACKNOWLEDGMENT OF RECEIPT OF AGREEMENT. Guarantor acknowledges
receipt of a true and complete copy of the Agreement. Guarantor acknowledges
and agrees that Kaiser shall not be required to furnish any future modification
or amendment to the Agreement.
16. MISCELLANEOUS. No modification, consent, amendment or waiver of
any provision of this Guaranty, nor consent to any departure by any Guarantor
therefore, shall be effective unless the same shall be in writing and signed by
an officer of Kaiser, and then shall be effective only in the specific instance
and for the purpose for which given. No notice to or demand on Guarantor in any
case shall, of itself, entitle Guarantor to any other or further notice or
demand, in similar or other circumstances. No delay or omission by Kaiser in
exercising any power or right hereunder shall impair any such right or power or
be construed as a waiver
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thereof or any acquiescence therein, nor shall any single or partial exercise of
any such power preclude other or further exercise thereof, or the exercise of
any other right or power hereunder. All rights and remedies of Kaiser hereunder
are cumulative of each other and of every other right or remedy which Kaiser may
otherwise have at law or in equity or under any other contract or document, and
the exercise of one or more rights or remedies shall not prejudice or impair the
concurrent or subsequent exercise of other rights or remedies. In this Guaranty,
whenever the text so requires, the singular shall include the plural and
conversely. This Guaranty shall be governed by and construed in accordance with
the laws of California. This Guaranty shall constitute the entire agreement of
the Guarantor with Kaiser with respect to the subject matter hereof and no
representation, understanding, promise or condition concerning the subject
matter hereof shall be binding upon Kaiser unless expressed herein. This
Guaranty is effective upon delivery to Kaiser without condition.
"GUARANTOR" "KAISER"
BUDWAY ENTERPRISES, INC. KAISER VENTURES INC.
a California corporation
By: /s/ Vincent M. McLeod By: /s/ Lee R. Redmond
------------------------ --------------------------
Its: Manager Its: Sr. Vice President - Real Estate
----------------------- ----------------------------------
V. M. McLeod, Jr.
- -----------------------------
V. M. McLEOD
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Kaiser Ventures Inc.
3633 E. Inland Empire Blvd., Suite 850
Ontario, CA 91764
Attn: Terry L. Cook, Esq.
SUBORDINATED DEED OF TRUST, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT
This SUBORDINATED DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND
SECURITY AGREEMENT ("DEED OF TRUST") is made as of September 30, 1997, by McLEOD
PROPERTIES, FONTANA LLC, a California limited liability company ("TRUSTOR"), to
Chicago Title Insurance Company ("TRUSTEE"), for the benefit of Kaiser Ventures
Inc., a Delaware corporation ("BENEFICIARY").
NOTICE: THIS SUBORDINATED DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS AND
SECURITY AGREEMENT CONTAINS A SUBORDINATION CLAUSE WHICH MAY RESULT IN YOUR
SECURITY INTEREST BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF
SOME OTHER OR LATER SECURITY INSTRUMENT.
ARTICLE 1 - GRANTS AND OBLIGATIONS SECURED
1.1 GRANTS. For good and valuable consideration and to secure the
obligations described below, Trustor hereby irrevocably grants, transfers and
assigns to Trustee, in trust, with power of sale and right of entry and
possession, all right, title and interest of Trustor, now owned or hereafter
acquired, in and to the following property:
(a) Parcel 3 of Parcel Map 14757, as per map recorded in Book 183,
Pages 24 and 25, inclusive, of Maps in the office of the County Recorder of San
Bernardino County, State of California, together with any and all buildings and
other improvements now existing or to be built thereon and other rights now or
hereafter made appurtenant thereto, including, but not limited to, all right,
title and interest in and to all streets, roads, and public places, opened or
proposed and all easements and rights-of-way, public or private, now or
hereafter used in connection with the property (collectively the "REAL
PROPERTY");
(b) any and all fixtures, fittings, furnishings, furniture,
appliances, apparatus, plumbing, heating and air conditioning items, equipment
and machinery of any nature or kind, now or hereafter attached to, a part of,
located on or used in connection with the Real Property together with all
renewals or replacements thereof or articles in substitution thereto;
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(c) any and all rentals, earnings, income, receipts, royalties, revenues,
issues and profits, and accounts receivable, contract rights, other
intangibles and proceeds thereof, generated from the use activities related
to or ownership of the Real Property, which, after the date hereof, and
while any portion of the indebtedness secured hereby remains unpaid, may
accrue from the foregoing and any part thereof, subject, however, to the
rights, powers and authority described in Article 3 below;
(d) any judgments, awards of damages and settlements hereafter made
as a result of or in lieu of any taking of the Real Property or any part thereof
or interest therein under the power of eminent domain, or any damage (whether
caused by such taking or otherwise) to the Real Property;
(e) all interest which Trustor has or may hereafter have in the
proceeds of insurance in effect with respect to any of the Property (as
hereafter defined);
(f) all proceeds of the conversion, voluntary or involuntary of any
of the Property (as defined below) foregoing into cash or liquidated claims;
(g) all other or greater rights or interests of every nature in the
Real Property and in the possession or use thereof and in the income therefrom,
whether now owned or subsequently acquired by Trustor.
Any of the foregoing arising or acquired by Trustor after the date hereof
and the property described in paragraphs (a) through (g) of this Section 1.1 are
collectively defined herein as the "PROPERTY."
1.2 OBLIGATIONS SECURED. The grants, assignments and transfers made in
Section 1.1 are given for the purpose of securing, in such order of priority as
Beneficiary may determine:
(a) Payment of the indebtedness evidenced by a promissory note of
even date herewith and any renewals, extensions, modifications, changes or
amendments thereof, in the original principal amount of One Million Four Hundred
Forty-Three Thousand, Ninety-Four Dollars ($1,443,094.00) executed by Trustor
and payable to Beneficiary (the "NOTE"), together with interest thereon and late
charges as provided by the Note, which is made a part hereof by reference;
(b) Payment of such further sums as Trustor, any guarantor, or any
successor in ownership hereafter may borrow from Beneficiary or that may be
advanced or provided by Beneficiary for the benefit of Trustor or the Property
whether or not evidenced by another note or notes, reciting it is so secured,
and all renewals, extensions, modifications, changes or amendments of such
indebtedness;
(c) Payment of all other moneys agreed or provided to be paid by
Trustor herein and performance of all other obligations of Trustor contained
herein or in the Declaration of Construction Covenants, Use Restrictions, Lien
Rights and Repurchase Option of even date herewith and recorded concurrently
herewith (the "DECLARATION"); and any amendments, modifications or changes
hereto or thereto; and
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(d) Performance of each agreement of Trustor contained the Note or
in any other agreement given by Trustor to Beneficiary which is for the purpose
of further securing any indebtedness or obligation secured hereby and any
amendments, modifications or changes thereto.
ARTICLE 2 - COVENANTS REPRESENTATIONS AND WARRANTIES OF TRUSTOR
A. CONDITION AND MAINTENANCE OF PROPERTY.
2.1 MAINTENANCE AND PRESERVATION. Trustor agrees (i) to preserve
Trustor's rights in the Property and to defend such rights against all competing
claims; and (ii) represents and warrants that the lien on each item of Property
is and shall remain a valid and enforceable first lien (subject only to the
subordination provisions hereof) and that Trustor will not permit any other
liens to be placed on the Property or any matter of record affecting the
Property, except as permitted by the subordination provisions hereof.
2.2 NO VIOLATION. Trustor shall not commit, permit or allow to exist
any violation of any law, ordinance, rule, regulation or order of any
governmental authority having jurisdiction over the Property or of any matter of
record affecting the Property.
2.3 MAINTENANCE AND REPAIR. Trustor shall keep the Property, as
applicable, in good operating order, repair and condition and shall not commit
or permit any waste thereof. Trustor shall make all repairs, replacements,
renewals, additions and improvements and complete and restore promptly and in
good workman like manner any buildings or improvements which are built,
upgraded, damaged or destroyed thereon and pay when due all costs incurred in
connection therewith. Trustor shall not, without Beneficiary's prior written
consent, remove any item from the Real Property after construction or demolish
or materially alter any of the Real Property.
B. PAYMENTS.
2.4 LOAN PAYMENTS. Trustor shall pay the principal, interest and other
charges due under the Note this Deed of Trust and the Declaration according to
their terms.
2.5 LIENS. Trustor shall pay or cause to be paid:
(a) Prior to the assessment of any penalty or delinquency, all
taxes, assessments and other governmental or public charges affecting the
Property and any accrued interest, cost and/or penalty thereon (individually, an
"IMPOSITION" and collectively, "IMPOSITIONS." If permitted by law, Trustor may
pay the Imposition in installments (together with any accrued interest). Trustor
shall not be required to pay any Imposition so long as (i) its validity is being
actively contested in good faith and by appropriate proceedings, (ii) Trustor
has demonstrated to Beneficiary's reasonable satisfaction that leaving such
Imposition unpaid pending the outcome of such proceedings could not result in
conveyance of the Property in satisfaction of such Imposition or otherwise
impair Beneficiary's interest under this Deed of Trust and (iii) Trustor has
furnished Beneficiary with a bond or other security satisfactory to Beneficiary
in an amount not less than 125% of the applicable claim. Upon demand by
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Beneficiary from time to time, Trustor shall deliver to Beneficiary, within 30
days following the due date of any Imposition, evidence of payment reasonably
satisfactory to Beneficiary.
(b) When due, all encumbrances (including any debt secured by deed
of trust) , ground rents, liens, and/or charges, with interest, on the Property
or any part thereof, and all costs, fees and expenses related thereto.
2.6 REIMBURSEMENT. Trustor shall pay immediately, without demand, after
expenditure, all reasonable sums expended or expenses incurred by Trustee and/or
Beneficiary in acting under any of the terms of this Deed of Trust, including,
without limitation, any fees and expenses (including reasonable attorneys, fees)
incurred in connection with any reconveyance of the Property or any portion
thereof, or to compel payment of the Note or any portion of the indebtedness
evidenced thereby or in connection with any default thereunder, including
without limitation attorneys, fees incurred in any bankruptcy or judicial or
nonjudicial foreclosure proceeding, with interest from date of expenditure at
the Default Rate provided for in the Note (and applicable to monetary defaults
thereunder) and said sums shall be secured hereby.
C. CONDEMNATION.
2.7 CONDEMNATION. If the Property, or any part thereof, is taken or
damaged by reason of any public improvement or condemnation proceeding, or in
any other manner, Beneficiary shall be entitled to all compensation, awards and
other payments or relief therefor to which Trustor shall be entitled, and shall
be entitled at its option to commence, appear in and prosecute in its own name
any action or proceeding or to make any compromise or settlement in connection
with such taking or damage to the extent of the interests of Trustor therein,
but Beneficiary shall not be responsible for any failure to collect any claim or
award, regardless of the cause of the failure. Trustor hereby absolutely and
unconditionally assigns to Beneficiary all such compensation, awards, damages,
rights of action and proceeds to which Trustor shall be entitled (the
"PROCEEDS"), and Beneficiary shall, after deducting therefrom all its reasonable
expenses, including reasonable attorneys' fees, apply or release the Proceeds as
follows: Beneficiary shall have the option to either apply the Proceeds upon any
indebtedness secured hereby in such order as Beneficiary may determine or
release such proceeds to Trustor without such release being deemed a payment of
any indebtedness secured hereby. Such application or release shall not cure or
waive any default or notice of default hereunder or invalidate any act done
pursuant to such notice. Trustor agrees to execute such further assignments of
the Proceeds as Beneficiary or Trustee may require. Nothing herein contained
shall prevent the accrual of interest as provided in the Note on any portion of
the Proceeds to be applied to the principal balance due under the Note until the
Proceeds are received by Beneficiary.
D. RENTS AND LEASES.
2.8 LEASE COVENANTS. Trustor shall submit to Beneficiary for its prior
written approval any lease of the Property or any portion thereof. Trustor
shall provide Beneficiary with true, correct and complete copies of all leases,
together with such other information relating to such leases as Beneficiary
shall reasonably request. Trustor shall not accept prepayments of rent under
any lease of the Property for any period in excess of three months
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and shall perform all covenants of the lessor any such leases. Leases, as used
herein, includes any leases of the Property, any extensions or renewals thereof
and any amendments thereto consented to by Beneficiary. Trustor shall perform
and carry out all of the provisions of the leases to be performed by Trustor and
shall appear in and defend any action in which the validity of any lease is at
issue and shall commence and maintain any action or proceeding necessary to
establish or maintain the validity of any lease and to enforce the provisions
thereof. Trustor shall immediately give notice to Beneficiary of any default
under any of the leases it receives or delivers. Beneficiary shall have the
right, but not the obligation, to cure any default of Trustor under any of the
leases and all amounts disbursed in connection with said cure shall be deemed to
be disbursements under the Note.
2.9 SUBORDINATION OF LEASES AND ATTORNMENT. Each lease of any portion
of the Property shall be absolutely subordinate to the lien of this Deed of
Trust, but shall contain a provision satisfactory to Beneficiary, and in any
event, each lessee thereunder, by virtue of executing a lease covering the
Property or any portion thereof, hereby agrees, that in the event of the
exercise of the private power of sale or a judicial foreclosure hereunder, such
lease, at the option of the purchaser at such sale, shall not be terminated and
the lessee thereunder shall attorn to such purchaser and, if requested to do so,
shall enter into a new lease for the balance of the term of such lease then
remaining upon the same terms and conditions. Each such lease shall, at the
request of Beneficiary, be assigned to Beneficiary upon Beneficiary's approved
form, and each such assignment shall be recorded and acknowledged by the lessee
thereunder. Concurrently with the execution of any and all leases executed after
the date hereof, Trustor shall cause the lessees thereunder to execute an
attornment agreement in favor of Beneficiary in form and substance satisfactory
to Beneficiary and immediately thereafter deliver such agreement to Beneficiary.
E. OTHER RIGHTS AND OBLIGATIONS.
2.10 INSURANCE.
(a) Trustor shall insure the Property and shall maintain, (i) fire
and extended coverage insurance (including loss from windstorm and hail) in an
amount of not less than the full replacement cost of the Property, with not less
than ninety percent (90%) co-insurance, and with no more than Twenty-Five
Thousand Dollars ($25,000) per loss deductible, which policy shall be written by
a stock or non-assessable mutual company or companies domiciled in the United
States, and licensed to transact business in the State of California, having a
Best's Key Rating for Property - Liability of A - or better; and (ii) liability
insurance in the amount of at least One Million Dollars ($1,000,000) combined
single limit for personal injury and property damage including bodily injury.
(b) All policies of insurance to be furnished hereunder shall be in
forms, companies and amounts satisfactory to Beneficiary with Standard Mortgage
Clauses attached to all policies in favor of and in form satisfactory to
Beneficiary, including a provision requiring that the coverage evidenced thereby
shall not be terminated or materially modified without thirty (3) days prior
written notice to the account of the indebtedness secured hereby or paid to
Grantor. No prepayment premium shall be due as a result of such prepayment.
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2.11 ASSIGNMENT OF CONTRACTS. In addition to any other grant, transfer
or assignment effectuated hereby, without in any manner limiting the generality
of the grants in Article 1 hereof, Trustor shall assign to Beneficiary, as
security for the indebtedness secured hereby, Trustor's interest in all
agreements, contracts, leases, licenses and permits affecting the Property in
any manner whatsoever, such assignments to be made, if so requested by
Beneficiary, by instruments in form satisfactory to Beneficiary; but no such
assignment shall be construed as a consent by Beneficiary to any agreement,
contract, license or permit so assigned, or to impose upon Beneficiary any
obligations with respect thereto.
2.12 MORTGAGE TAX. In the event of the passage, after the date of this
Deed of Trust, of any law deducting from the value of the Property for the
purpose of taxation any lien thereon, or changing in any way the laws now in
force for the taxation of deeds of trust or debts secured by deeds of trust, or
the manner of the collection of any such taxes, so as to affect this Deed of
Trust, or imposing payment of the whole or any portion of any taxes, assessments
or other similar charges against the Property upon Beneficiary, the indebtedness
secured hereby shall immediately become due and payable at the option of
Beneficiary; provided, however, that such election by Beneficiary shall be
ineffective if such law either (a) shall not impose a tax upon Beneficiary nor
increase any tax now payable by Beneficiary, or (b) shall impose a tax upon
Beneficiary or increase any tax now payable by Beneficiary and prior to the due
date: (i) Trustor is permitted by law and can become legally obligated to pay
such tax or the increased portion thereof (in addition to all interest,
additional interest and other charges payable hereunder and under the Note
without exceeding the applicable limits imposed by the usury laws of the State
of California) ; (ii) Trustor does pay such tax or increased portion; and (iii)
Trustor agrees with Beneficiary in writing to pay, or reimburse Beneficiary for
the payment of, any such tax or increased portion thereof when thereafter levied
or assessed against the Property or any portion thereof. The obligations of
Trustor under such agreement shall be secured hereby.
2.13 PRESERVATION OF PROPERTY. Trustor shall do any and all acts which,
from the character or use of the Property, may be reasonably necessary to
protect and preserve the lien, the priority of the lien and the security of
Beneficiary granted herein, the specific enumerations herein not excluding the
general.
2.14 COMPLIANCE WITH PROPERTY RESTRICTIONS. Trustor will faithfully
perform each and every covenant to be performed by Trustor under any agreement
affecting the Property, including, without limiting the generality hereof, deeds
of trust, leases and other loan agreements which affect the Property, in law or
in equity. A breach of or a default under any such agreement shall constitute a
default under this Deed of Trust.
2.15 ATTORNEYS' FEES. Upon election of either Beneficiary or Trustee to
do so, employment of an attorney is authorized, and payment by Trustor of all
reasonable attorneys' fees, costs and expenses in connection with any action
and/or actions (including the cost of evidence or search of title) which may be
brought for the foreclosure of this Deed of Trust, and/or for possession of the
Property covered hereby, and/or for the appointment of a receiver, and/or for
the enforcement of any covenant or right in this Deed of Trust contained as
hereinafter provided, shall be secured hereby.
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2.16 RESTRICTIONS UPON TRANSFER. Except as otherwise permitted herein
(including but not limited to the provisions on subordination set forth in
Article 6 hereof), in the event that the interest of Trustor in the Property, or
any part thereof, or any interest therein, is sold, agreed to be sold, conveyed,
encumbered, alienated or otherwise transferred by Trustor, whether by operation
of law or otherwise, the Note, irrespective of the maturity dates expressed
therein, at the option of Beneficiary, and without demand or notice, shall
immediately become due and payable. In the event that Beneficiary does not
elect to declare the Note immediately due and payable, then, unless indicated
otherwise in writing by Beneficiary, Trustor shall nevertheless remain primarily
liable for the obligations hereunder and under the Note and any other instrument
securing the Note. This provision shall apply to each and every sale, transfer,
encumbrance or conveyance, regardless of whether or not Beneficiary has
consented to, or waived, Beneficiary's rights hereunder, whether by action or
non-action in connection with any previous sale, transfer or conveyance. For
the purposes hereof, any change in the identity, structure, management, nature
or control of Trustor, whether by way of a change in the identity of any
shareholder of Trustor or a change in the ownership or control of Trustor or any
shareholder of Trustor, by merger or otherwise, shall be deemed a sale
hereunder. Trustor may transfer the Property to a McLeod family trust,
partnership, or limited liability company so long as Trustor remains liable for
the obligations hereunder and under the Note and any other instrument securing
the Note.
2.17 FURTHER ASSURANCES. Trustor agrees to execute such documents and
take such action as Beneficiary shall determine to be necessary or desireable to
further evidence, perfect or continue the perfection and/or the priority of the
lien and security interest granted by Trustor herein.
2.18 PROTECTION OF SECURITY. At the time and in the manner herein
provided, Beneficiary, or Trustee upon written instructions from Beneficiary
(the legality thereof to be determined solely by Beneficiary), may, without
notice to or demand upon Trustor, without releasing Trustor from any obligation
hereunder and without waiving its right to declare a default as herein provided
or impairing any declaration of default or election to cause the Property to be
sold or any sale proceeding predicated thereon:
(a) Take action in such manner and to such extent as either may
deem necessary to protect the security hereof;
(b) Commence, appear in and/or defend any action or proceedings
purporting to affect the security hereof, and/or any additional or other
security therefor, the interests, rights, powers and/or duties of Trustee and/or
Beneficiary hereunder, whether brought by or against Trustor, Trustee,
Beneficiary or otherwise;
(c) Pay, purchase, contest or compromise any claim, debt, lien,
charge or encumbrance which in the judgment of either may affect or appear to
affect the security and/or priority of this Deed of Trust, the interest of
Beneficiary or the rights, powers and/or duties of Trustee and/or Beneficiary
hereunder; and
(d) Beneficiary is authorized, either by itself or by its agents to
be appointed by it for that purpose or by a receiver appointed by a court of
competent jurisdiction, to manage the Property and rent and lease the same,
perform such reasonable acts of protection as may be
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reasonably necessary or proper to conserve the value of the Property, and
collect any and all income, rents, issues, profits and proceeds therefrom, the
same being hereby assigned and transferred to Beneficiary for the benefit and
protection of Beneficiary; and from time to time apply and/or accumulate such
income, rents, issues, profits and proceeds in such order and manner as
Beneficiary or such receiver in its sole discretion shall consider advisable, to
or upon the following: the expense of receivership, if any; the repayment of any
sums theretofore or thereafter advanced pursuant to the terms of this Deed of
Trust upon the indebtedness secured hereby; the taxes and assessments upon the
Property then due or next to become due; and/or upon the unpaid principal of
such indebtedness and/or interest thereon. The collection and/or receipt of
income, rents, issues, profits and/or proceeds by Beneficiary, its agent or
receiver, after declaration of default and election to cause the Property to be
sold under and pursuant to the terms of this Deed of Trust, shall not affect or
impair such default or declaration of default or election to cause the Property
to be sold or any sale proceedings predicated thereon, but such proceedings may
be conducted and sale effected notwithstanding the receipt and/or collection of
any such income, rents, issues, profits and,/or proceeds. Any such income,
rents, issues, profits and/or proceeds in the possession of Beneficiary, its
agent or receiver, at the time of sale and not theretofore applied as herein
provided, shall be applied in the same manner and for the same purposes as the
proceeds of the sale. Neither Trustee nor Beneficiary shall be under any
obligation to make any of the payments or do any of the acts referred to in this
Section and any of the actions referred to in this Section may be taken by
Beneficiary irrespective of whether any notice of default or election to sell
has been given hereunder and without regard to the adequacy of the security for
the indebtedness secured hereby. Beneficiary agrees to notify Trustor promptly
of any action or proceeding that Beneficiary commences, appears in or defends
pursuant to Section 2.18(b) above; provided, however, that the failure to give
such notice shall not affect any of Beneficiary's rights and remedies under this
Deed of Trust or otherwise.
2.19 INDEMNITY. Trustor agrees to indemnify, protect, hold harmless and
defend Trustee and Beneficiary from and against any and all losses, liabilities,
suits, obligations, fines, damages, judgments, penalties, claims, charges, costs
and expenses (including reasonable attorneys' fees and disbursements) which may
be imposed on, incurred or paid by or asserted against Trustee and/or
Beneficiary by reason or on account of, or in connection with the Property,
including (i) any willful misconduct of Trustor or any default or Event of
Default by Trustor hereunder and (ii) any negligence of Trustor or any
negligence or willful misconduct of any lessee or sublessee of the Property, or
any of their respective agents, servants, employees, licensees or invitees. Any
amount payable to Trustee or Beneficiary under this Section shall be due and
payable within ten (10) days after demand therefor and receipt by Trustor of a
statement from Trustee and/or Beneficiary setting forth in reasonable detail the
amount claimed and the basis therefor. Trustor's obligations under this Section
shall survive the repayment or any other satisfaction of the Note and shall not
be affected by the absence or unavailability of insurance covering the same or
by the failure or refusal of any insurance carrier to perform any obligation on
its part under any such policy of insurance. If any claim, action or proceeding
is made or brought against Trustee and/or Beneficiary which is subject to the
indemnity set forth in this Section, Trustor shall resist or defend against the
same, if necessary in the name of Trustee and/or Beneficiary, by attorneys for
Trustor's insurance carrier (if the same is covered by insurance) approved by
Trustee and/or Beneficiary (as applicable) or otherwise by attorneys retained by
Trustor and approved by Trustee and/or Beneficiary (as applicable).
Notwithstanding the foregoing, Trustee and Beneficiary, in their
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<PAGE>
discretion, if either or both of them disapprove of the attorneys provided by
Trustor or Trustor's insurance carrier, may engage their own attorneys to resist
or defend, or assist therein, and Trustor shall pay, or, on demand, shall
reimburse, Trustee and Beneficiary for the payment of the reasonable fees and
disbursements of said attorneys.
2.20 HAZARDOUS MATERIALS.
(a) INDEMNIFICATION. Trustor shall be solely responsible for,
---------------
and shall indemnify and hold harmless Beneficiary, its directors, officers,
employees, agents, successors and assigns from and against, any loss, damage,
demand, claim, cause of action, judgment, action, assessment, penalty, cost,
expense or liability directly or indirectly incurred thereby and arising out of
or attributable to the existence of Hazardous Materials on the Property, except
for Hazardous Materials reported in the Phase 1 study done in connection with
Trustor's purchase of the Real Property or otherwise shown within seven years of
the date hereof by clear and convincing evidence to have been present on the
Real Property before the date hereof.
HAZARDOUS MATERIALS shall mean and refer to any material or
substance which is (i) defined or listed as a "hazardous waste", "extremely
hazardous waste", "restrictive hazardous waste", "hazardous substance",
"hazardous material", "hazardous chemical", "extremely hazardous substance",
"toxic substance", "toxic pollutant", "pollutant", "pollution", "regulated
substance", "pesticide", "contaminant", "hazardous air pollutant", or words of
similar import, or considered a waste, condition of pollution, or nuisance,
pursuant to the laws of California and/or the United States, (ii) gasoline,
diesel fuel, oil, used oil, petroleum, or a petroleum product or fraction
thereof, (iii) asbestos and asbestos-containing construction materials as
defined by federal or state law, by weight, of asbestos, (iv) substances known
by the State of California or the United States to cause cancer and/or
reproductive toxicity, (v) toxic, corrosive, flammable, infectious, radioactive,
mutagenic, explosive or otherwise hazardous substances which are or become
regulated by any governmental agency or instrumentality of the United States, or
any state or any political subdivision thereof, (vi) polychlorinated biphenyls
(PCBs), (vii) urea formaldehyde foam insulation, (viii) all hazardous air
pollutants or materials known to cause serious health effects (including,
without limitation, volatile hydrocarbons, pesticides, herbicides and industrial
solvents) and/or (ix) substances which constitute a material health, safety or
environmental risk to any Person or property. It is the intent of the Parties
hereto to construe the term "Hazardous Materials" in its broadest sense.
(b) Notice to Beneficiary. Trustor shall immediately advise
Beneficiary in writing of (i) any and all enforcement, clean up, mitigation or
other governmental or regulatory actions instituted, contemplated or threatened
pursuant to any Hazardous Materials Laws affecting the Property; and (ii) all
claims made or threatened by any third party with respect to the Property
relating to damage, contribution, cost recovery, compensation, loss or injury
resulting from any Hazardous Materials (the matters set forth in clauses (i) and
(ii) above are hereinafter referred to as "Hazardous Materials Claims").
Beneficiary shall have the right to join and participate in, as a party if it so
elects, any settlements, remedial actions, legal proceedings or actions
initiated in connection with any Hazardous Materials Claims and to have its
reasonable attorneys, fees in connection therewith paid by Trustor.
(c) MISCELLANEOUS. Notwithstanding Section 2941 of the
-------------
California Civil Code, Trustor waives its rights to any damages resulting from a
delayed reconveyance of this
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<PAGE>
Deed of Trust pending the identification and liquidation of Trustor's
liabilities under this Section. The indemnities provided in this Section 2.18
shall survive the repayment or any other satisfaction of the Note. Further,
Trustor agrees that the foregoing indemnities are separate, independent of, and
in addition to its undertakings pursuant to this Deed of Trust and any and all
other documents, agreements and undertakings executed by Trustor in favor of
Beneficiary pursuant hereto. Trustor agrees that a separate action may be
brought to enforce the provisions of this indemnification, which shall in no way
be deemed to be an action on the Note, whether or not Beneficiary would be
entitled to a deficiency judgment following a judicial or non-judicial
foreclosure.
2.21 TRUSTOR WARRANTIES. Trustor hereby warrants and represents to
Beneficiary as follows:
(a) The execution and delivery of this Deed of Trust and
performance by Trustor of the obligations contained herein will not to the
knowledge of Trustor violate, be in conflict with, result in a breach of or
constitute (with notice or lapse of time or both) a default under any judicial
decision, statute, rule, regulation, ordinance or permit applicable to Trustor
or any agreement, covenant, condition or restriction applicable to Grantor or to
which Trustor is a party or may be bound.
(b) The Note, this Deed of Trust and all related documents (i)
have been duly and validly executed and delivered by Trustor to Beneficiary, and
(ii) are enforceable against Trustor in all material respects in accordance with
their terms.
(c) There are no actions, suits or proceedings of a material
nature pending or, to the knowledge of Trustor, threatened against Trustor or
the Property, except as have been disclosed in writing to Beneficiary.
(d) To the best of Trustor's knowledge, all financial statements
and related information presented by Trustor to Beneficiary in connection with
the transaction evidenced by this Deed of Trust are correct and complete in all
material respects.
2.22 FINANCIAL STATEMENTS. Trustor, and any subsequent owner of the Real
Property, shall deliver to Beneficiary, within sixty (60) days after the end of
each Trustor's calendar quarter, a balance sheet and statement of income
(receipts) and expenditures. Within ninety (90) days after the end of Trustor's
calendar year it shall submit to Beneficiary certified financial statements
consisting of a balance sheet, income and expense statement and a statement of
changes in financial condition. Seller agrees not to disclose any information
contained in the financial statements to competitors of Trustor.
2.23 INSPECTIONS. Beneficiary and its agents, representatives and
workmen are authorized to enter at any reasonable time and in a reasonable
manner upon or on any part of the Real Property for the purposes of inspecting
the same and for the purpose of performing any of the acts it or Trustor is
authorized to perform under the terms of this Deed of Trust, the Declaration or
any other instrument which secures the Note secured hereby.
2.24 ESTOPPEL CERTIFICATES. Trustor and Beneficiary within ten (10) days
after written request from the other shall furnish a duly acknowledged written
statement setting forth the
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<PAGE>
amount of the debt secured by this Deed of Trust, and stating, in the case of
Trustor, either that no setoffs or defenses exist against the debt or, if such
setoffs or defenses are alleged to exist, the nature thereof, and in the case of
Beneficiary, that no defaults exist under the Note or hereunder or, if such
defaults exist, the nature thereof.
ARTICLE 3 - ASSIGNMENT OF LEASES AND RENTS
Trustor hereby absolutely and unconditionally assigns and transfers to
Beneficiary (and has not heretofore otherwise so assigned or transferred) all
its right, title and interest in and to any and all leases (and including all
security deposits, guarantees and other security at any time given as security
for the performance of the obligations of the lessees thereunder), income,
rents, issues, deposits, profits and proceeds of the Property to which Trustor
may be entitled, whether now due, past due or to become due, and hereby gives to
and confers upon Beneficiary the right, power and authority to collect such
income, rents, issues, deposits, profits and proceeds. This assignment of the
leases, income, rents, issues, deposits, profits and proceeds constitutes an
irrevocable direction and authorization of all lessees under the leases to pay
all rent, income and profits to Beneficiary upon demand and without further
consent or other action by Trustor. This is an absolute assignment, not an
assignment for security only, and Beneficiary's right to rents, issues and
profits is not contingent on Beneficiary's possession of all or any portion of
the Property. Trustor irrevocably appoints Beneficiary its true and lawful
attorney, at the option of Beneficiary at any time, to demand, receive and
enforce payment, to give receipts, releases and satisfactions, and to sue,
either in the name of Trustor or in the name of Beneficiary, for all such
income, rents, issues, deposits, profits and proceeds and apply the same to the
indebtedness secured hereby. It is understood and agreed that neither the
foregoing assignment of leases, income, rents, issues, deposits, profits and
proceeds to Beneficiary nor the exercise by Beneficiary of any of its rights or
remedies under this Section or under Sections 2.7 or 2.16 hereof shall be deemed
to make Beneficiary a "mortgagee-in-possession" or otherwise obligated,
responsible or liable in any manner with respect to the Property or the use or
enjoyment of all or any portion thereof. Notwithstanding anything to the
contrary contained herein or in the Note, so long as no event which is, or with
notice or passage of time or both would constitute, an Event of Default shall
have occurred, Trustor shall have a license to collect all income, rents,
issues, profits and proceeds from the Property as trustee for the benefit of
Beneficiary and Trustor and Trustor shall apply the funds so collected first to
the payment of the indebtedness secured pursuant to Section 1.2 above then due
and payable in such manner as Beneficiary elects and thereafter to the account
of Trustor. Upon the occurrence of such event, such license shall be deemed
revoked and any rents received thereafter by Trustor shall be delivered in kind
to Beneficiary. Upon the occurrence of such event, Trustor agrees to deliver
the original copies of all leases to Beneficiary. Trustor hereby irrevocably
constitutes and appoints Beneficiary its true and lawful attorney-in-fact to
enforce, in Trustor's name or in Beneficiary's name or otherwise, all rights of
Trustor in the instruments, including without limitation checks and money
orders, tendered as payments of rents and to do any and all things necessary and
proper to carry out the purposes hereof.
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<PAGE>
ARTICLE 4 - GRANT OF SECURTIY
This instrument is and shall be construed as a deed of trust, assignment of
lease and rents and as a Security Agreement. The Trustor hereby assigns and
pledges to Beneficiary, and hereby grants to the Beneficiary a security interest
in all of the Trustor's right, title and interest in and to any and all
intangible and personal property of any nature or kind, including, but not
limited to, all equipment, machines, tools, accounts receivable, contracts,
rights, other intangibles and other items used on the property described in
Article 1.1(a), whether now owned or hereafter acquired, with the exception of
equipment purchased with a purchase money note or a lease/purchase.
Notwithstanding anything to the contrary contained herein or in the Note, so
long as no event which is, or with notice or passage of time or both would
constitute, an Event of Default shall have occurred, Trustor shall have a
license to use all such personal property as trustee for the benefit of
Beneficiary and Trustor. Upon the occurrence of such event, such license shall
be deemed revoked Beneficiary may exercise all rights granted to it under the
Uniform Commencement Code or any other applicable law and any such personal
property shall be delivered to Beneficiary.
ARTICLE 5 - DEFAULTS AND REMEDIES
A. DEFAULTS.
5.1 EVENT OF DEFAULT. Trustor shall be in default hereunder if any of
the following occurs ("EVENT OF DEFAULT"):
(i) FAILURE TO PAY INTEREST, PRINCIPAL OR OTHER AMOUNTS. If
---------------------------------------------------
Trustor fails to pay any payment of interest or principal, or any other amount
due under the provisions herein or of the Note or Declaration, when due and such
failure continues for five (5) days after written notice thereof from Lender to
Trustor.
(ii) VIOLATION OF OTHER TERMS. If Trustor breaches or fails to
------------------------
comply with any other agreement, term, covenant, or condition in this Deed of
Trust, the Note or the Declaration which is applicable to Trustor and such
breach or failure to comply continues for a period of ten (10) days after
written notice thereof from Lender to Trustor or if such breach or failure to
comply cannot reasonably be cured within such ten (10) day period, if Trustor
shall not commence to cure such breach or failure to comply within such ten (10)
day period and thereafter proceed therewith in good faith to completion.
(iii) BANKRUPTCY AND RELATED PROCEEDINGS. Without limiting the
----------------------------------
generality of this Section, if Trustor or Guarantor files a petition in
bankruptcy or for relief, reorganization or arrangement under the bankruptcy
laws of the United States of America or any similar federal, state or local law
or if involuntary proceedings under any such federal, state or local law are
instituted against Trustor or Guarantor and not dismissed within thirty (30)
days after the filing of the petition therefor.
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<PAGE>
B. REMEDIES.
5.2 ACCELERATION AND FORECLOSURE. Upon the occurrence of an
Event of Default hereunder, then and in each such event, Beneficiary may declare
all sums secured hereby immediately due and payable either by commencing an
action to foreclose this Deed of Trust as a mortgage, or by the delivery to
Trustee of a written declaration of default and demand for sale and of written
notice of default and of election to cause the Property to be sold, which notice
Trustee shall cause to be duly filed for record in case of foreclosure by
exercise of the power of sale herein. Should Beneficiary elect to foreclose by
exercise of the power of sale herein, Beneficiary shall also deposit with
Trustee this Deed of Trust, the Note and such receipts and evidence of
expenditures made and secured hereby as Trustee may require, and notice of sale
having been given as then required by law and after lapse of such time as may
then be required by law after recordation of such notice of default, Trustee,
without demand on Trustor, shall sell the Property at the time and place of sale
fixed by Beneficiary in said notice of sale, either as a whole or in separate
parcels, and in such order as Beneficiary may determine, at public auction to
the highest bidder for cash in lawful money of the United States, payable at
time of sale. Neither Trustor nor any other person or entity other than the
Beneficiary shall have the right to direct the order in which the Property is
sold. Trustee may postpone sale of all or any portion of the Property by public
announcement at such time and place of sale, and from time to time thereafter
may postpone such sale by public announcement at the time fixed by the preceding
postponement. Trustee shall deliver to such purchaser its deed or deeds
conveying the Property, or any portion thereof, so sold, but without any
covenant or warranty, express or implied. The recitals in such deed or deeds of
any matters or facts shall be conclusive proof of the truthfulness thereof. Any
person, including Trustor, Trustee or Beneficiary, may purchase at such sale.
5.3 RESCISSION OF NOTICE. Beneficiary, from time to time before
Trustee's sale, may rescind any such notice of breach or default and of election
to cause the Property to be sold by executing and delivering to Trustee a
written notice of such rescission, which notice, when recorded, shall also
constitute a cancellation of any prior declaration of default and demand for
sale. The exercise by Beneficiary of such right of rescission shall not
constitute a waiver of any breach or default then existing or subsequently
occurring, or impair the right of Beneficiary to execute and deliver to Trustee,
as above provided, other declarations of default and demand for sale, and
notices of breach or default, and of election to cause the Property to be sold
to satisfy the obligations hereof, nor otherwise affect any provision,
agreement, covenant or condition of the Note, the Declaration and/or of this
Deed of Trust, or any of the rights, obligations or remedies of the parties
hereunder.
5.4 PROCEEDS OF SALE. After deducting all costs, fees and expenses of
Trustee and of this trust, including the cost of appraisal and evidence of title
in connection with sale and attorneys' fees, Trustee shall apply the proceeds of
sale to payment of: all sums expended under the terms hereof, not then repaid,
with accrued interest at the Default Rate as defined in the Note (and applicable
to monetary defaults thereunder); all other sums then secured hereby; and the
remainder, if any, to the person or persons legally entitled thereto.
5.5 OTHER SECURITY. If Beneficiary at any time holds additional
security for any obligations secured hereby, it may enforce the terms hereof or
otherwise realize upon the same, at its option, either before or concurrently
herewith or after a sale is made hereunder, and may
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<PAGE>
apply the proceeds upon the indebtedness secured hereby without affecting the
status of or waiving any right to exhaust all or any other security, including
the security hereunder, and without waiving any breach or default or any right
or power whether exercised hereunder or contained herein or in any such other
security.
5.6 REMEDIES CUMULATIVE. No remedy herein conferred upon or reserved to
Trustee or Beneficiary is intended to be exclusive of any other remedy herein or
by law provided or permitted, but each shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute. Every power or remedy given by this instrument
to Trustee or Beneficiary or to which either of them may be otherwise entitled
may be exercised concurrently or independently, from time to time and as often
as may be deemed expedient by Trustee or Beneficiary, and either of them may
pursue inconsistent remedies.
5.7 APPOINTMENT OF RECEIVER. Upon the occurrence of an Event of Default
hereunder, Beneficiary, as a matter of right and without regard to the then
value of the Property or the interest of Trustor therein, shall have the right
to apply to any court having jurisdiction to appoint a receiver or receivers of
the Property or any portion thereof. Any such receiver or receivers shall have
all the usual powers and duties of receivers in like or similar cases and all
the powers and duties of Beneficiary in case of entry as provided herein and
shall continue as such and exercise all such powers until the date of
confirmation of sale of the Property unless such receivership is sooner
terminated.
ARTICLE 6 - SUBORDINATION PROVISIONS
Subject to the following provisions, and provided no unrescinded
notice of default under the terms of this Subordinated Deed of Trust then
appears of record, this Subordinated Deed of Trust shall, upon recordation of
the Notice of Subordination described below, be subordinate to the following:
1. A first priority deed of trust, to be hereafter executed by Trustor,
or his or her successor in interest, covering the property, and to be recorded
in the Office of the County Recorder of San Bernardino County, to secure a loan
(hereafter called the "CONSTRUCTION LOAN") from Bank of America Community
Development Bank (hereafter called "LENDER") for the purpose of constructing
improvements on the property, provided:
(a) The total principal amount of the Construction Loan shall not
exceed $5,000,000;
(b) Any funds derived from the Construction Loan shall be used
only for the construction on the property of a facility for warehouse and
materials handling purposes (the "Improvements"), and to the extent permitted in
this Deed of Trust, for the loan fees, interest, or other charges directly
connected with the construction of the Improvements;
(c) No portion of the Construction Loan shall be used to pay loan
fees, interest, or other charges not directly connected with the construction of
the Improvements;
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<PAGE>
(d) The Construction Loan shall not bear interest, exclusive of
late charges, penalties, or fees payable in case of default, greater than prime
plus two percent (p+2%) per annum.
(e) The Construction Loan shall accrue interest, and shall be all
due and payable not sooner than six (6) months from the date of the Construction
Loan (absent a default), nor later than fourteen (14) months from the date of
the Construction Loan.
(f) The proceeds of the Construction Loan shall be disbursed by
the Lender either through its own offices or through a bonded disbursement
control agency only after inspection of the work completed on the property and
presentation of vouchers (or other similar documentation) signed by the Trustor
or his or her successors in interest for the cost of work, labor, or materials
actually performed or used in the construction of improvements on the property.
(g) Trustor has delivered to the Trustee or Beneficiary a binding
written commitment from an institutional lender to make a permanent loan on the
property, further described below, on completion of the Improvements.
(h) The remaining terms and provisions of the Construction Loan
shall be as required by the Lender.
Within 10 days after receipt of a written request therefor from Trustor,
Beneficiary shall execute a separate Notice of Subordination, in recordable
form, in favor of the Construction Loan to which this Deed of Trust is hereby
subordinated, and deliver the Notice of Subordination to the Lender or Lender's
title company designated by Trustor. To the extent of any discrepancy, the
terms of any such Notice of Subordination shall prevail over the subordination
provisions provided for in this Deed of Trust.
2. Permanent financing, as more fully described below:
(a) A first priority deed of trust, to be hereafter executed by
Trustor, or his or her successor in interest, covering the property, and to be
recorded in the Office of the County Recorder of San Bernardino County, to
secure a loan (hereafter called "BofA Loan") from Bank of America Community
Development Bank (hereafter called "Lender") for the purpose of paying a portion
of the Construction Loan, provided:
(i) The total principal amount of the BofA Loan shall not
exceed $4,000,000;
(ii) Any funds derived from the BofA Loan shall be used only
for the payment of the Construction Loan, and to the extent permitted in this
Deed of Trust, for the loan fees, interest, or other charges directly connected
with the construction of the Improvements;
(iii) No portion of the BofA Loan shall be used to pay loan
fees, interest, or other charges not directly connected with the payment of the
Construction Loan;
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<PAGE>
(iv) The BofA Loan shall not bear interest, exclusive of
late charges, penalties, or fees payable in case of default, greater than prime
plus one percent (p+ 1%) per annum.
(v) The BofA Loan shall be payable in equal monthly
installments of principal and interest amortized over a period of time of not
less than twenty five (25) years from the date of the BofA Loan, with the total
unpaid balance all due and payable not sooner than ten (10) years from the date
of the BofA Loan.
(vi) The remaining terms and provisions of the BofA Loan
shall be as required by the Lender.
Within 10 days after receipt of a written request therefor from Trustor,
Beneficiary shall execute a separate Notice of Subordination, in recordable
form, in favor of the BofA Loan to which this Deed of Trust is hereby
subordinated, and deliver the Notice of Subordination to the Lender or Lender's
title company designated by Trustor. To the extent of any discrepancy, the
terms of any such Notice of Subordination shall prevail over the subordination
provisions provided for in this Deed of Trust.
(b) A second priority deed of trust (junior in priority to the
BofA Loan), to be hereafter executed by Trustor, or his or her successor in
interest, covering the property, and to be recorded in the Office of the County
Recorder of San Bernardino County, to secure a loan (hereafter called "SBA
LOAN") from the Small Business Administration (hereafter called "SBA") for the
purpose of paying a portion of the Construction Loan, provided:
(i) The total principal amount of the SBA Loan shall not
exceed $1,000,000;
(ii) Any funds derived from the SBA Loan shall be used only
for the payment of the Construction Loan, and to the extent permitted in this
Deed of Trust, for the loan fees, interest, or other charges directly connected
with the construction of the Improvements;
(iii) No portion of the SBA Loan shall be used to pay loan
fees, interest, or other charges not directly connected with the payment of the
Construction Loan;
(iv) The SBA Loan shall not bear interest, exclusive of late
charges, penalties, or fees payable in case of default, greater than twelve
percent (12%) per annum.
(v) The SBA Loan shall be payable in equal monthly
installments of principal and interest amortized over a period of time of not
less than twenty (20) years from the date of the SBA Loan, with the total unpaid
balance all due and payable not sooner than ten (10) years from the date of the
SBA Loan.
(vi) The remaining terms and provisions of the SBA Loan
shall be as required by the Lender.
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<PAGE>
Within 10 days after receipt of a written request therefor from Trustor,
Beneficiary shall execute a separate Notice of Subordination, in recordable
form, in favor of the SBA Loan to which this Deed of Trust is hereby
subordinated, and deliver the Notice of Subordination to the SBA or SBA's title
company designated by Trustor. To the extent of any discrepancy, the terms of
any such Notice of Subordination shall prevail over the subordination provisions
provided for in this Deed of Trust.
ARTICLE 7 - MISCELLANEOUS PROVISIONS
7.1 NO WAIVER. By accepting payment of any sum secured hereby after its
due date or in an amount less than the sum due, Beneficiary does not waive its
rights either to require prompt payment when due of all other sums so secured or
to declare a default as herein provided for failure to pay the total sum due.
7.2 TRUSTEE'S POWERS. At any time, or from time to time, without
liability therefor and without notice, upon written request of Beneficiary and
presentation of this Deed of Trust and the Note for endorsement, and without
affecting the personal liability of any person for payment of all or any portion
of the indebtedness secured hereby or the effect of this Deed of Trust upon the
remainder of the Property, Trustee may reconvey any part of the Property or join
in any extension agreement or any agreement subordinating the lien or charge
hereof.
7.3 SUBROGATION. Beneficiary shall be subrogated for further security
to the lien, although released of record, of any and all encumbrances paid out
of the proceeds of any loan secured by this Deed of Trust.
7.4 SUCCESSORS IN INTEREST AND INTERPRETATION. Subject to the
provisions of Section 2.14 hereof this Deed of Trust applies to, inures to the
benefit of, and binds all parties hereto, their heirs, legatees, devisees,
administrators, executors, successors and assigns. The term "BENEFICIARY" shall
mean the owner and holder, including pledgees, of the Note, now or hereafter and
whether or not named as Beneficiary herein. In this Deed of Trust, whenever the
context so requires, the masculine gender includes the feminine and/or neuter,
and the singular number includes the plural. The word "person" shall include
corporation, partnership or other form of association. Any reference in this
Deed of Trust to any document, instrument or agreement creating or evidencing an
obligation secured hereby shall include such document, instrument or agreement
both as originally executed and as it may from time to time be modified.
7.5 AFFIDAVIT TO TRUSTEE. Trustee, upon presentation to it of an
affidavit signed by or on behalf of Beneficiary, setting forth any fact or facts
showing a default by Trustor under any of the terms or conditions of this Deed
of Trust, is authorized to accept as true and conclusive all facts and
statements in such affidavit and to act hereunder in complete reliance thereon.
7.6 SEVERABILITY. If any provision hereof should be held unenforceable
or void, then such provision shall be deemed separable from the remaining
provisions and shall in no way affect the validity of this Deed of Trust.
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7.7 TRUSTEE'S ACCEPTANCE. Trustee accepts this trust when this Deed of
Trust, duly executed and acknowledged, is made a public record as provided by
law. The trust created hereby is irrevocable by Trustor.
7.8 NO OBLIGATION TO NOTIFY. Trustee shall be under no obligation to
notify any party hereto of any action or proceeding of any kind in which
Trustor, Beneficiary and/or Trustee shall be a party, unless brought by Trustee,
or of any pending sale under any other deed of trust.
7.9 SUBSTITUTION OF TRUSTEE. Beneficiary may, from time to time, by a
written instrument executed and acknowledged by Beneficiary and recorded in the
county or counties where the Property is located, substitute a successor or
successors for the Trustee named herein or acting hereunder.
7.10 WAIVER OF STATUTE OF LIMITATIONS. The right to plead any and all
statutes of limitation as a defense to any demand secured by this Deed of Trust
is hereby waived to the full extent permitted by law.
7.11 NOTICES. All notices and demands expressly provided hereunder to be
given by Beneficiary to Trustor and all notices, demands and other
communications of any kind or nature whatever which Trustor may be required or
may desire to give to or serve on Beneficiary shall be in writing and shall be
(i) hand-delivered, effective upon receipt, (ii) sent by United States Express
Mail or by private overnight courier, effective upon receipt, or (iii) served by
certified mail, effective as provided below, to the appropriate address set
forth in this Section, or at such other place as Trustor, Beneficiary or
Trustee, as the case may be, may from time to time designate in writing by ten
(10) days prior written notice thereof. Any such notice, demand or other
communication served by certified mail, return receipt requested, shall be
deposited in the United States mail, with postage thereon fully prepaid and
addressed to the party so to be served at its address above stated or at such
other address of which said party shall have theretofore notified in writing, as
provided above, the party giving such notice. Service by certified mail of any
such notice or demand shall be deemed effective on the day of actual delivery as
shown by the addressee's return receipt or the expiration of three (3) business
days after the date of mailing, whichever is the earlier in time. The parties
addresses are as follows:
<TABLE>
<CAPTION>
TO TRUSTOR: McLEOD PROPERTIES, FONTANA LLC,
<S> <C>
4700 Gregg Road
Pico Rivera, CA 90660
ATTN.: Rick McLeod
TO BENEFICIARY: Kaiser Ventures Inc..
3633 Inland Empire blvd., Suite 850
Ontario, CA 91764
ATTN.: Lee Redmond
WITH A COPY TO: Kaiser Ventures Inc.
3633 Inland Empire blvd., Suite 850
Ontario, CA 91764
ATTN: Terry Cook
</TABLE>
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<PAGE>
7.12 NOTICE TO TRUSTOR. Trustor requests that a copy of any notice of
default and of any notice of sale hereunder be mailed to Trustor at the address
set forth above.
7.13 RECONVEYANCE. Upon written request of Beneficiary stating that all
sums secured hereby have been paid and upon surrender to Trustee of this Deed of
Trust and the Note for cancellation and retention and upon payment of its fees,
Trustee shall reconvey, without warranty, the Property then held hereunder. The
recitals in such reconveyance of any matters or facts shall be conclusive proof
of the truthfulness thereof. The grantee in such reconveyance may be described
as "the person or persons legally entitled thereto."
7.14 RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY.
Without affecting the liability or obligations of any person, including Trustor,
for the performance of any obligations secured hereby (excepting only any person
or property otherwise expressly released in writing by Beneficiary), Beneficiary
may, from time to time and without notice, release any person liable for payment
of any of said indebtedness or the performance of any of said obligations,
extend the time of payment or otherwise alter the terms of any of said
obligations, accept additional security therefor of any kind, including trust
deeds or mortgages, or alter, substitute or release any property securing said
obligations.
7.15 HEADINGS. The headings of each paragraph are for convenience only
and shall be disregarded in construing this Deed of Trust.
7.16 ASSIGNMENTS. Beneficiary may assign or otherwise transfer all or
any portion of its rights and obligations under this Deed of Trust to any other
person or entity, and such other person or entity shall thereupon become vested
with all of the benefits in respect thereof granted to Beneficiary herein or
otherwise.
7.17 GOVERNING LAW. This Deed of Trust shall be construed and enforced
in accordance with the laws of the State of California. This Deed of Trust is
delivered pursuant to, and is subject to the terms of, the Declaration.
SIGNATURE PAGE FOLLOWS
Page 19 of 20
<PAGE>
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust and Assignment of
Leases and Rents as of the day first written above.
McLEOD PROPERTIES, FONTANA LLC,
a California limited liability company
By: /s/ Vincent M. McLeod
---------------------
Its: Manager
-------
KAISER VENTURES, INC.,
a Delaware corporation
By: /s/ Lee R. Redmond
------------------
Lee R. Redmond, III
Its: Senior Vice President - Real Estate
-----------------------------------
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
consolidated balance sheets and consolidated statements of income from the
September 30, 1997 Form 10-Q Report and is qualified in its entirety by
reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<CASH> 6,286,000
<SECURITIES> 0
<RECEIVABLES> 2,676,000
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 8,962,000
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 139,907,000
<CURRENT-LIABILITIES> 17,619,000
<BONDS> 9,162,000
0
0
<COMMON> 318,000
<OTHER-SE> 85,975,000
<TOTAL-LIABILITY-AND-EQUITY> 139,907,000
<SALES> 0
<TOTAL-REVENUES> 8,035,000
<CGS> 0
<TOTAL-COSTS> 2,623,000
<OTHER-EXPENSES> 3,087,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 696,000
<INCOME-PRETAX> 1,629,000
<INCOME-TAX> 706,000
<INCOME-CONTINUING> 923,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 923,000
<EPS-PRIMARY> .09
<EPS-DILUTED> .09
</TABLE>
