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HomeMy WebLinkAbout1992-013 Agrmt - Mt. A Ski AreaAGREEMENT RELATING TO ACQUISITION, OWNERSHIP AND OPERATION OF MT. ASHLAND SKI AREA THIS AGREEMENT is entered into by and between the CITY OF ASHLAND, OREGON (hereinafter the "City") and MT. ASHLAND SKI AREA, INC. (hereinafter "MASA"). RECITALS: On January 20, 1992 MASA (acting under its previous name of "Mt. Ashland Ski, Inc.") entered into an agreement to purchase from Ski Ashland, Inc. all of the tangible and intangible~assets of the Mt. Ashland Ski Area (hereinafter the "Ski Area") in Jackson County, Oregon. MASA is willing to assign to the City all of its rights and obligations with respect to the purchase of the Ski Area from Ski Ashland, Inc., and the City is willing to assume those rights and obligations. MASA presently is organized as an Oregon business corporation. Prior to the closing of the purchase of the Ski Area, MASA will be reorganized as a non-profit corporation having as its primary purpose the management and operation of the Ski Area for the benefit and welfare of the Southern Oregon community, and the furtherance of educational and charitable activities in connection therewith. Under no circumstances will any monies be transferred to or accrue to the benefit of the business corporation. NOW, THEREFORE, IN CONSIDERATION OF the mutual covenants and promises set forth herein, the parties agree as follows: I. PURPOSES. 1.1 Statement Of General Purposes. MASA and the City hereby declare that they share the following general purposes in entering into this Agreement: (a) The parties wish to ensure that the Ski Area will be operated and managed by MASA (as an independent, non-profit corporation), and that no burden will be placed upon the City of Ashland in connection with the operation and management of the Ski Area. (b) The parties wish to ensure that the City will not be obligated to commit any portion of the City's general revenue to the acquisition, operation, management or maintenance of the Ski Area. (c) The parties wish to ensure that all monies now or hereafter received by the City in connection with the acquisition or operation of the Ski Area will be set apart in one or more segregated accounts, and will be used only for the acquisition, maintenance, operation and improvement of the Ski Area. II. PURCHASE OF SKI AREA ASSETS 2.1 Assignment To City Of Purchase Rights With Respect To Ski Area Assets. MASA agrees to assign to the City all of its rights, interests and obligations under the Asset Purchase Agreement dated January 20, 1992 under which Ski Ashland Inc. has agreed to sell to MASA all of the tangible and intangible assets of the Ski Area (hereinafter the "Ski Area Assets"), and the City agrees to accept the assignment from MASA of all of those rights, interests and obligations. The assignment referred to in the preceding sentence shall be closed immediately prior to the closing of the purchase of the Ski Area Assets. 1/21/92 MASA'.10 1 2.2 MASA To Coordinate Acquisition Of Funds To Complete Purchase. (a) The City shall have no obligation to use any City funds in connection with the purchase of the Ski Area Assets. (b) MASA shall be responsible for coordinating all fund-raising activities which are required in order to obtain the monies necessary to complete the purchase of the Ski Area Assets. The City agrees to receive and account for all donations and grants from the public for the purpose of funding the purchase of the Ski Area Assets. If sufficient funds are obtained to close the purchase of the Ski Area Assets, then all of the donated monies held by the City will be used to acquire the Ski Area Assets and establish a reserve account to fund Ski Area operations and improvements. If sufficient funds are not received to complete the purchase of the Ski Area Assets, then all donations received and held by the City will be returned to the donors. (c) All monies received by the City in connection with the purchase of the Ski Area Assets shall be used and applied by the City solely for the purpose of completing the purchase of the Ski Area Assets and establishing a reserve account to fund future Ski Area operations and improvements. (d) If the purchase of the Ski Area Assets is not closed in due course, then the provisions of Articles III through VII of this Agreement shall be void and of no effect. III. RIGHTS AND OBLIGATIONS OF MASA 3.1 MASA To Manaqe And Operate Ski Area. MASA, acting as a lessee and independent contractor, shall have the sole and exclusive right, power, authority, responsibility and obligation to operate and manage the Ski Area. Without limiting the generality of the preceding sentence, MASA shall have the following specific rights and responsibilities with respect to the operation and management of the Ski Area: (a) MASA shall be responsible for establishing the annual operating budgets and capital improvement budgets for the Ski Area. (b) MASA shall employ all employees of the Ski Area. MASA shall have all rights and responsibilities inherent in its status as employer of the Ski Area employees, including but not limited to the right to hire and fire employees, determine employee compensation, and determine all aspects of employee working conditions. Employees of the Ski Area will not be deemed for any purpose to be employees of the City. (c) MASA shall be authorized to enter into independent contracts with third parties relating to the operation and management of the Ski Area. MASA shall have the right to determine whether any portion of the Ski Area operations (i.e. equipment rentals or food and beverage operations) shall be accomplished using independent contractors or MASA employees. (d) MASA shall have the right to collect and retain all monies derived from Ski Area operations. (e) MASA shall have the right to establish ticket prices, to sell discounted tickets or passes, and to engage in promotional activities which involve the distribution of discounted or free tickets or passes. 1/21/92 MASA'.10 ~) IV. RIGHTS AND OBLIGATIONS OF CITY 4.1 Ownemhip Of Assets. The City shall be the sole and exclusive owner of the Ski Area Assets. The City also shall be the sole and exclusive owner of all donations and other monies received from public or private sources with respect to the initial acquisition of the Ski Area (all of which donations and other monies shall hereinafter be referred to as the "Ski Area Funds"). 4.2 Restrictions On Use Of Ski Area Funds. The City shall be bound by the following restrictions with respect to Ski Area Funds. (a) All Ski Area Funds shall be segregated in one or more accounts which are separate from the general funds of the City. Ski Area Funds shall not be commingled for accounting purposes with the general funds of the City. The City shall invest surplus Ski Area Funds in accordance with prudent fiduciary standards, and shall credit to the Ski Area Funds all income so earned. (b) The City shall not under any circumstances spend, apply or otherwise use any portion of the Ski Area Funds for any purpose other than the purchase of the Ski Area Assets and/or the maintenance of a reserve account to fund further Ski Area operations or improvements. V. LEASE OF SKI AREA ASSETS 5.1 Lease Of Ski Area Assets. The City agrees to lease the Ski Area Assets to MASA upon terms and conditions agreeable to both parties, the intent being to model the lease in form and substance to the lease agreement between the City of Ashland and the Oregon Shakespearean Festival Association which was executed on August 29, 1969. MASA shall be obligated to pay to the City the sum of $1,00 per year as consideration for the lease of the Ski Area Assets. The following matters shall also be addressed in the lease: (a) Provision must be made as to lessee's compliance with environmental laws as well as the underlying obligations of the Forest Service Special Use Permit. (b) It must be recognized that all property, including equipment, furniture, structures and fixtures are leased "as is" with no warranties. (c) The fire and casualty provisions will have to be broader to include Ski Area hazards. (d) The liability insurance provisions must be increased to the tort claim limits. (e) Shakespeare lease. The City will not supply irrigation water as provided in paragraph 8 of the (f) There must be a requirement in the lease to maintain and replace the property to the extent that the value remains at a level to insure sufficient assets are available in case of closure and its consequent structure removal and site restoration. (g) Issues addressing auditing costs of the City shall also be addressed. VI. TERM AND ENFORCEMENT OF AGREEMENT 6.1 Term Of Agreement. The term of this Agreement will commence upon execution of this Agreement by both parties and shall terminate upon December 31,2017. 1/21/92 MASA'.10 3 6.2 Enfomement. In the event of any breach or threatened breach of any provision of this Agreement by either party, the non-breaching party shall have any and all rights and remedies with respect to that breach which are available at law and in equity, including but not limited to the right to seek and obtain an injunction which requires the breaching party to perform an action required under this Agreement or which prevents the breaching party from taking any action prohibited under this Agreement. Vii. MISCELLANEOUS 7.1 Miscellaneous. This Agreement shall be governed and performed in accordance with the laws of the state of Oregon. Each of the parties hereby irrevocably submits to the jurisdiction of the courts of Jackson County, Oregon, and agrees that any legal proceedings with respect to this Agreement shall be flied and heard in the appropriate court in Jackson County, Oregon. The paragraph headings set forth in this Agreement are set forth for convenience purposes only, and do not in any way define, limit or construe the contents of this Agreement. If any provision of this Agreement shall be determined to be void by any court of competent jurisdiction, then that determination shall not affect any other provisions of this Agreement, and all such other provisions shall remain in full force and effect. It is the intention of the parties that if any provision of this Agreement is capable of two constructions, only one of which would render the provision valid, then the provision shall have the meaning which renders it valid. If suit or action is instituted in connection with any controversy arising out of this Agreement, the prevailing party in that suit or action or any appeal therefrom shall be entitled to recover, in addition to any other relief, the sum which the trial court and any appellate court may judge to be reasonable attorney fees. This Agreement is being executed in two counterparts, each of which shall be an original, and both of which shall constitute a single instrument, when signed by the parties. Waiver by either party of strict performance of any of the provisions of this Agreement shall not be a waiver of, and shall not prejudice the party's right to subsequently require strict performance of, the same provision or any other provision, and no delay or omission to exercise any right or power accruing upon any breach shall impair any such right or power or shall be construed to be a waiver thereof. The consent or approval of either party to any act by the other party of a nature requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar act. There are no oral agreements or representations between the parties hereto which affect this Agreement, and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, warranties, representations and understandings, if any, between the parties. Neither party shall have the right to convey or assign its rights and obligations under this Agreement without the prior written consent of the other party, which consent may be withheld for any reason or no reason. No remedy conferred upon or reserved to either party under this Agreement is intended to be exclusive of any other remedy available to that party by reason of the other party's breach, but each and every remedy shall be cumulative and in addition to every other remedy given under this Agreement or existing at law or in equity. This Agreement may be amended only by a written document executed by both parties. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated below. CITY OF ASHLAND, OREGON (the "City) MT. ASHLAND SKI AREA, INC. ("MASA") BY'¢~~..~__~ / Dated Dated