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HomeMy WebLinkAbout2011-0228 Documents Submitted at Mtg 7-1l-f' S'-~""'."I"'t.. (="(or +u ~ M. ~)l?IV~ CITY OF ASHLAND Memo TO: FROM: DATE: RE: Ashland City Council Martha Bennett, City Administrator February 23, 2011 Timeline of Major Events related to discussions with Mount Ashland Association in the past 8 years Recently, Councilor Slattery and Councilor Voisin asked for a general timeline of the major events that have taken place between the City and Mount Ashland Association. The following table is a general overview of the major actions (letters, motions, etc.) that the City has taken since 2003. My memory of these events, of course, only began in 2006, so I may have missed some things. Also, many City Council discussions took place in Executive Session while the litigation was going on, and those of course, are not represented in this timeline. Lastly, some of the conversations between the City and MAA took place either in mediation or pursuant to settlement of the litigation, and both parties agreed to . keep those conversations confidential, so the content of those discussions are also not illustrated here. For those of you who want to do more research, I have attached a link to Council agendas and minutes when I could easily find them so you can read the public comment (including by MAA, the Forest Service, the Sierra Club, and many other interested citizens) and the Council discussion. I have attempted not to editorialize about whether the City's action was "good" or "bad" (just the facts), and I hope you find it to be useful. Date ActIon Effect May 2000 City Comments on Draft City Public Works Director Paula Brown recommends Environmental Impact Statement to the City Council that the City comment on the proposed expansion of the ski area. Ms. Brown finds htto://www.ashland.or. usIFileslMtAshland that as long as proper construction protocols are EIS.Ddf followed, there would be no significant damage to the page # 1 City of Ashland's drinking water. June 2002 City Atlomey Paul Nolte Memo on Nolte concludes that MAA must hold the City hannless role of the City in the proposed and that MAA has the right to make changes and. Expansion improvements to the ski area without the consent of the htto:l/www .ashland.or. uslFiles/MtAshland City. EIS.Ddf Dage #29 July 2003 Revised Draft Environmental Impact MAA had revised and updated the proposed project. Statement issued by Forest Service The Forest Service updated the purpose and need statement. ADMINISTRATION 20 East Main Street Ashland. Oregon 97520 WWN.ashland.or.us Tel: 541-488-6002 Fax: 541-488.5311 TTY: 800-735-2900 r.l' September 22, 2003 City Council Study Session on City reviewed and commented on revision. City comments on Draft Environmental requested the creation of the Quality Assurance/ Qu~lity Impact Statement Control (QAlQc) process at that time City also discusses desire for special MOU with the htto:/lwww.ashland.or .lls/Paee.aso?NavID Forest Service for this project. City also questions ~]591 amount that will be required for restoration and whether MAA has sufficient funds and/or assets to cover restoration. October 2], 2003 City Council adopts resolution asking These were in addition to the comments offered in the Forest Service to consider the September community based alternative for expansion htto:/lwww.ashland.or.uslFilesIFEIS Ana chments.odf page ] 5 October 19,2004 City Council decides not to appeal the At that time, Council wanted the City to be a partner in Forest Service approval of the Final monitoring and directed staff to periodically report on Environmental Impact Statement and ways to ensure adequate monitoring of any construction the ski area expansion activity htto:/lwww .ashland.or .us/Pa!!e.aso?Nav ID ., -2551 and hun:1 /www.ashland.or.lls/Pae:e.asn?NavID ~2564 September 6, 2005 City Council Adopts Resolution 2005- Two resolutions had been proposed. The one adopted 35 requested: -That the forest service estimate the restoration sum for htto:/ /www.ashland.or.uslPae:e.aso?NavID after the expansion and adjust the amount in the SUP ~8805 -That MAA provide a business plan -That MAA and the City appoint a QAlQC team Several different organizations were involved in developing the resolution that was ultimately adopted December 2005 Gino Grimaldi writes to MAA This letter is buried somewhere in a large file box requesting compliance with the resolution August I, 2006 A large number of people show up to httn:/ /www.ashland.or.us/Files/2006- talk about the expansion during public 080] %20Publ ic%20F orum.odf forum September 6, 2006 The City Council holds a study httv:llwww .ashland.or.us/Pa!!e.aso?Nav 10=9653 session to discuss Resolution 2005-35 There was extensive' discussion by many parties of all three sections of the resolution City Council also directs an appraisal of assets to determine if assets meet Minimum Liquidation Value ADMINISTRATION 20 East Main Street Ashland, Oregon 97520 www.8shland.or.us Tel: 541488-6002 Fax: 541488-5311 TTY: 800-735-2900 r~' ) Sept 19, 2006 City Council Regular Session Staff requested formation of the QAlQC Team. Also htto:/ /www.ashland.or.us/Agendas.aso suggested an "Advisory Team." Council gave direction ?Disolav=M inutes&AMID=27 65 about the advisory team. Sept. 26 2006 Council Special Meeting MAA wrote a letter to Mayor Morison notifying the City that MAA planned to refrain from logging as pan htto://www.ashland.or.uslPal:!e.aso?NavID of the expansion until October 20, 2006. ~9691 Council directed staff to seek outside legal counsel to determine what the City could or couldn't do under the terms of the lease to affect the timber sale (slow or orevent) October 3, 2006 Council Meeting Council directed the City Administrator to send a letter to the USDA Forest Service requesting that the contracts http://www.ashland.or.us!Agendas.asp?Dis for the Ski Run Settlement Sale come to the City instead play=Minutes&AM I D~2780 ofMAA. They funher directed the City Administrator to send a letter to MAA Council also modified their previous direction on the QA/QC advisory committee Right after MAA Letter requesting that the City In this letter, MAA expresses its opinion that the City's repeal the direction to the forest letter violates the terms of the lease. service January II, 2007 Appraisal of Assets City receives a report on an appraisal. Appraisal identifies the liquidation value at $672,000. Also finds hun:/ /www.ashland.or.lls/Palle.aso?NavID the cost of deconstruction would be $1.165 million if ~9888 ordered. Staff states they think MAA has complied with the Minimum Liquidation Value in the lease, but some Councilors disagree because ofthe deconstruction estimate. No one comments on whether USDA Forest Service would require demolition. Feb through April MAA files suit against the City over Two mediation sessions are held. A third is scheduled 2007 the October 3, 2006 letter. MAA and but cancelled City enter mediation, Mediation is confidential. Feb,20,2007 City gets lots of public comment on htto:/Iwv..'w.ashland.or.us/Paee.a5o?NavID 10000 MAA and Exoansion June 19,2007 Staff requests Council direction on City was trying to form despite failure of mediation. QA/ QC Team, June 27, 2007 This was done because several Councilors wanted to htto:/lwww.ash land.or .lls/Pal!c.asn?NavID move ahead with resolution 2005-35 despite mediation ~10287 failure. AND htto:/Iwww.ash land. or. llslPaec.aso?NavID -10299 ADMINISTRATION 20 East Main Street Ashland, Oregon 97520 WVM'.ashland,or.us Tel: 541488.0002 Fax: 541488-5311 m: 800-735-2900 ~~, June 27, 2007 The New Letter Council directed the City Administrator to send a new huo:/ /www.ashland.or.us!Aecndas.aso?Dis letter saying that it was the City's intention to award olav=oMinutes&AM ID- 3084 MAA the Ski Run Settlement Sale but that we were still negotiating with them. July 18, 2007 The "Chapman Motion" Council adopted a motion directing the City huo:/lwww .ashland.or .usl Al!cndas.aso?Dis Administrator to negotiate with MAA. The motion olav-Minutes&AMID-3113 stated" Our objectives are: 1) Obtain a final agreement on the QA/QC technical team and its authority, 2) Obtain a USFS agreement to re- evaluate restoration and adjust the bonding requirement, 3) Review/Update MOU with USFS on watershed protection interests, 4) Form a MOU between the City and MAA on watershed protection interests, S) Form an agreement with MAA to hold each other harmless with respect to the past and 6) Transfer the SUP and dissolve the lease agreement between the Cltv of Ashland and MAA," September 4, 2007 Council Meeting Council discusses the SUP and Resolution 2005-35. A motion to rescind the July 18,2007 motion failed. httn:/lwww.ash land.or.us! A!!cndas.aso?Dis o]av=Minutes&AMID-3158 Sept 2007 through Council discusses MAA wastewater Councilor Navickas wanted a report on its status. I March 2008 treatment plant don't remember whether DEQ and MAA made a presentation. August 2007 through City Administrator and General Several agreements are reached at the staff level but July 2008 Manager meet several times to discuss none satisfy both the MAA Board and City Council. settlement. Settlement talks are Some are rejected by both bodies. confidential. October 2008 Schiveley Ruling - Judge Schiveley I'll send an electronic copy of the ruling separately. finds in favor of MAA after lawsuit. Ruling basically states that the Lease prevents the City Orders City to reverse October 3, from enforcing resolution 2005-35. States that if City 2006 letter. wants to change lease, it must renegotiate with MAA Oct. through Dec City settles legal fees and decides not Basis for decision not to appeal was that the grounds for 2008 to appeal Schiveley Ruling appeal were procedural. Council also concerned about expense. huo:/lwww.ashland.or.us/Paec.aso?NavID -11506 AND huo:/lwww.ashland.or.usl Al!cndas.aso?Dis ~ olav=Minutes&AM ID=3644 Since Then Periodic Discussions with MAA about MAA and other parties began to discuss whether SUP a variety of things, but no formal transfer was a good idea in the spring 20 I 0, but they did request for SUP until November 2010. not make a formal request until they appeared at the Council meeting. ADMINISTRATION 20 East Main Street Ashland, Oregon 97520 www.ashland.or.us Tel: 541-488-W02 Fax: 541-488-5311 TTY: 800-735-2900 ~~, ---- :J. I)J'- s:v.Io"",~A pc I <V' TO. (V' t) lV'\. (k",,,.:tt FS-2ivv-24 (6/89) OMB No. 0596-0103 Exnires 5/92 USDA - Forest S~rvice Holder No. Type Site Authority 1204/02 161 2 SKI AREA Auth. Type Issue Date Expir. Date TERM SPECIAL USE PERMIT 18 / / 07/04/17 Location Sequence No. Stat. Ref. Act of October 26, 1986 Latitude Longitude LOS Case (Ref. FSM 2710) - - - - City of Ashland (Holder Name) of City Hall (Billi~g Address 1) (Billing Address . 2) Ashland (City) Or. (State) 97520 (Zip Code) (hereafter called the holder) is hereby authorized to use National Forest System lands, on the Rogue River National Forest, for the purposes of constructing, operating, and maintaining a winter sports resort including food service, retail sales, and other ancillary facilities, described herein, known as the Mt. Ashland ski area and subject to the provisions of this term permit. This permit covers 1180 acres described here and as shown on the attached map dated May 10,1991 identified as Exhibit 1. The following improvements, whether on or off the site, are authorized: parking lots, buildings, ski runs, ski lifts & terminals, roads, paths & trails utilities (including, but not limited to sewage, electrical, water, telephone, & fuel tanks), nordic skiing trails, and snow play areas. Attached Clauses, This term permit is accepted subject to forth herein on pages 2 through 22 ,and to exhibits 1 attached or referenced hereto and made a part of this permit. the conditions set to 2 THIS PERMIT IS ACCEPTED S .CT Tp ALL OF ITS TERMS AND~NDIT~ONS. ACCEPTED: ~--;::Z;: - _~~ q._-<./.y4.Oo'~~ th Golden, Ma or; Nan Franklin, Cit Recorder SIGNATURE DATE James T. G a en, AUTHORIZED OFFICER'S NAME AND ervisor TITLE APPROVED: r;:::,."7~~-"':-~.2\ -, r .. '; o. \ ,... iC- IS D\ ,( :'; '.:: _ '..-'71_~... . ": 0 1992 TERMS AND CONDITIONS I, AUTHORITY AND USE AND TERM AUTHORIZED. A. Authority. This term permit is issued under the authority of the Act of October 26, 1986, (16' U.S.C. 497b) , and Title 36, Code of Federal Regulations, Sections 251.50-251.64. B. Authorized Officer, The authorized officer is the Forest Supervisor. The authorized officer may designate a representative for administration of specific portions of this authorization. C. Rules, Laws and Ordinances. The holder, in exercising the privileges granted by this term permit, shall comply with all present and future regulations of the Secretary of Agriculture and federal laws; and all present and future, state, county, and municipal laws, ordinances, or regulations which are applicable to the area or operations covered by this permit to the extent they are not in conflict with federal law, policy or regulation. The Forest Service assumes no responsibility for enforcing laws, regulations, ordinances and the like which are under the jurisdiction of other government bodies. D. in D1. in D.2) Term. (For existing areas with a Master Development Plan place N/A For new areas or areas without a Master Oevelopment Plan place N/A 1. This authorization is for a term of NA years to provide for the holder to prepare a Master Development Plan. Subject to acceptance of the Master Development Plan by the authorized officer, this authorization shall be extended for an additional NA years, for a total of NA years, to provide the holder sufficient time to construct facilities approved in the Master Development Plan within the schedule outlined in clause II.B. (Site Development Schedule), so that the area may be used by the public. Further Provided; This authorization shall be extended by its terms for an additional NA years, for a total of NA years, if it is in compliance with the site development schedule in the Master Development Plan and being in operation by the 10-year anniversary date of the issuance of this authorization. Failure of the holder to comply with all or any provisions of this clause shall cause the authorization to terminate under its terms. 2. Unless sooner terminated or revoked by the authorized officer, in accordance with the provisions of the authorization, this permit shall terminate on JULY 4, 2017 , but a new special-use authorization to occupy and use the same National Forest land may be granted provided the holder shall comply with the then-existing laws and regulations governing the occupancy and use of National Forest lands. The holder shall notify the authorized officer in writing not less than six (6) months prior to said date that such new authorization is desired. E. Nonexclusive Use. This permit is not exclusive. The Forest Service reserves the right to use or permit others to use any part of the permitted area for any purpose, provided such use does not materially interfere with the rights and privileges hereby authorized. F. Area Access. Except for any restrictions as the holder and the authorized officer may agree to be necessary to protect the installation and operation of authorized structures and developments, the lands and waters covered by this permit shall remain open to the public for all lawful purposes. To facilitate public use of this area, all existing roads or roads as may be constructed by the holder, shall remain open to the public, except for roads as may be closed by joint agreement of the holder and the authorized officer. G, Master Development Plan, In consideration of the privileges authorized by this permit, the holder agrees to prepare and submit changes in the Master Development Plan encompassing the entire winter sports resort presently envisioned for development in connection with the National Forest lands authorized by this permit, and in a form acceptable to the Forest Service. Additional construction beyond maintenance of existing improvements shall not be authorized until this plan has been amended. Planning should encompass all the area authorized for use by this permit. The accepted Master Development Plan shall become a part of this permit. For planning purposes, a capacity for the ski area in people-at-one time shall be established in the Master Development Plan and appropriate National Environmental Policy Act (NEPA) document. The overall development shall not exceed that capacity without further environmental analysis documentation through the appropriate NEPA process. H. Periodic Revision. 1, The terms and conditions of this authorization shall be subject to revision to reflect changing times and conditions so that land use allocation decisions made as a result of revision to Forest Land and Resource Management Plan may be incorporated. 2. At the sole discretion of the authorized officer this term permit may be amended to remove authorization to use any National Forest System lands not specifically covered in the Master Development Plan and/or needed for use and occupancy under this authorization. II, IMPROVEMENTS, A. Permission. Nothing in this permit shall be construed to imply permission to build or maintain any improvement not specifically named in the Master Development Plan and approved in the annual operating plan, or further authorized in writing by the authorized officer. B, Site Development Schedule. As part of this permit, a schedule for the progressive development of the permitted area and installation of facilities shall be prepared jointly by the holder and the Forest Service. Such a schedule shall be prepared by January 1, 1993 (Date), and shall set forth an itemized priority list of planned improvements and the due date for completion. This schedule shall be made a part of this permit. The holder may accelerate the scheduled date for installation of any improvement authorized, provided the other scheduled priorities are met; and provided further, that all priority installations authorized are completed to the satisfaction of the Forest Service and ready for public use prior to the scheduled due date. 1. All required plans and specifications for site improvements, and structures included in the development schedule shall be properly certified and submitted to the Forest Service at least forty-five (45) days before the construction date stipulated in the development schedule. 2. In the event there is agreement with the Forest Service to expand the facilities and services provided on the areas covered by this permit, the holder shall jointly prepare with the Forest Service a development schedule for the added facilities prior to any construction and meet requirements of paragraph 11.0 of this section. Such schedule shall be made a part of this permit, C. Plans. All plans for development, layout, construction, reconstruction or alteration of improvements on the site, as well as revisions of such plans, must be prepared by a licensed engineer, architect, and/or landscape architect (in those states in which such licensing is required) or other qualified individual acceptable to the authorized officer. Such plans must be accepted by the authorized officer before the commencement of any work. A holder may be required to furnish as-built plans, maps, or surveys upon the completion of construction. D. Amendment. This authorization may be amended to cover new, changed, or additional uses(s) or area not previously considered in the approved Master Development plan. In approving or denying changes or modifications, the authorize officer shall consider among other things, the findings or recommendations of other involved agencies and whether their terms and conditions of the existing authorization may be continued or revised, or a new authorization issued. E. Ski Lift Plans and Specifications. All plans for uphill equipment and systems shall be properly certified as being in accordance with the American National Standard Safety Requirements for Aerial Passenger Tramways (B77.1). A complete set of drawings, specifications, and records for each lift shall be maintained by the holder and made available to the Forest Service upon request. These documents shall be retained by the holder for a period of three (3) years after the removal of the system from National Forest land. III, OPERATIONS AND MAINTENANCE. A. Conditions of Operations, The holder shall maintain the improvements and premises to standards of repair, orderliness, neatness, sanitation, and safety acceptable to the authorized officer. Standards are subject to periodic change by the authorized officer. This use shall normally be exercised at least 30 days each year or season. Failure of the holder to exercise this minimum use may result in termination pursuant to VIII.B. B. Ski Lift, Holder Inspection. The holder shall have all passenger tramways inspected by a qualified engineer or tramway specialist. Inspections shall be made in accordance with the American National Standard Safety Requirements for Aerial Passenger Tramways (B77.l). A certificate of inspection, signed by an officer of the holder's company, attesting to the adequacy and safety of the installations and equipment for public use shall be received by the Forest Service prior to public operation stating as a minimum: "Pursuant to our special use permit, we have had an inspection to determine our compliance with the American National Standard B77.l. We have received the results of that inspection and have made corrections of all deficiencies noted. The facilities are ready for public use," C. OperatinR Plan. The holder or designated representative shall prepare and annually revise by October 1 (Month/Day) an Operating Plan, The plan shall be prepared in consultation with the authorized officer or designated representative and cover winter and summer operations as appropriate, The provisions of the Operating Plan and the annual revisions shall become a part of this permit and shall be submitted by the holder and approved by the authorized officer or their designated representatives, This plan shall consist of at least the following sections: 1. Ski patrol and first aid. 2. Communications. 3. Signs. 4. General safety and sanitation. 5. Erosion control. 6. Accident reporting. 7. Avalanche control. 8. Search and rescue. 9. Boundary management. 10. Vegetation management. 11. Designation of representatives. 12. Trail routes for nordic skiing. The authorized officer may require a joint annual business meeting agenda to; a. Update of Gross Fixed Assets and lift-line proration when fee is calculated by the Graduated Rate Fee System. b. Determine need for performance bond for construction projects and amount of bond. c. Provide annual use reports. D, Cutting of Trees. Trees or shrubbery on the permitted area may be removed or destroyed only after the authorized officer has approved and marked, or otherwise designated, that which may be removed or destroyed. Timber cut or destroyed shall be paid for by the holder at appraised value: Provided that the Forest Service reserves the right to dispose of the merchantable timber to others than the holder at no stumpage cost to the holder. E. Signs. Signs or advertising devices erected on National Forest lands, shall have prior approval by the Forest Service as to location, design, size, color, and message. Erected signs shall be maintained or renewed as necessary to neat and presentable standards, as determined by the Forest Service. F. Temporary Suspension. Immediate temporary suspension of the operation, in whole or in part, may be required when the authorized officer, or designated representative, determines it to be necessary to protect the public health or safety or the environment. The order for suspension may be given verbally or in writing. In any such case, the superior of the authorized officer, or designated representative. shall, within ten (10) days of request of the holder, arrange for an on-the-ground review of the adverse conditions with the holder. Following this review the superior shall take prompt action to affirm, modify or cancel the temporary suspension. IV. NONDISCRIMINATION. During the performance of this permit, the holder agrees: A. In connection with the performance of work under this permit, including construction, maintenance, and operation of the facility, the holder shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, or handicap. (Ref, Title VII of the Civil Rights Act of 1964 as amended). B. The holder and employees shall not discriminate by segregation or otherwise against any person on the basis of race, color, religion, sex, national origin, age or handicap, by curtailing or refusing to furnish accommodations, facilities, services, or use privileges offered to the public generally. (Ref. Title VI of the Civil Rights Act of 1964 as amended, Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments, and the .Age Discrimination Act of 1975). C. The holder shall include and require compliance with the above nondiscrimination provisions in any subcontract made with respect to the operations under this permit. D. Signs setting forth this policy of nondiscrimination to be furnished by the Forest Service will be conspicuously displayed at the public entrance to the premises, and at other exterior or interior locations as directed by the Forest Service. E, That the Forest Service shall have the right to enforce the foregoing nondiscrimination provisions by suit for specific performance or by any other available remedy under the laws .of the United States of the State in which the breach or violation occurs. V. LIABILITIES. A. rights liable Third Party Rights. This permit is subject to all valid existing and claims outstanding in third parties. The United States is not to the holder for the exercise of any such right or claim. B. Indemnification of the United States. The holder shall hold harmless the United States from any liability from damage to life or property arising from the holder's occupancy or use of National Forest lands under this permit. C. Damage to United States Property. The holder shall exercise diligence in protecting from damage the land and property of the United States covered by and used in connection with this permit. The holder shall pay the United States the full cost of any damage resulting from negligence or activities occurring under the terms of this permit or under any law or regulation applicable to the national forests, whether caused by the holder, or by any agents or employees of the holder. D. Risks. The holder assumes all risk of loss to the improvements resulting from natural or catastrophic events, including but not limited to, avalanches, rising waters, high winds, falling limbs or trees and other hazardous events. If the improvements authorized by this permit are destroyed or substantially damaged by natural or catastrophic events, the authorized officer shall conduct an analysis to determine whether the improvements can be safely occupied in the future and whether rebuilding should be allowed, The analysis shall be provided to the holder within 6 months of the event. E, Hazards. authorized for use which could affect individuals. The holder has the responsibility of inspecting the area under this permit for evidence of hazardous conditions the improvements or pose a risk of injury to F, Insurance, The holder shall have in force public liability insurance covering: (1) property damage in the amount of fifty thousand dollars ($ 50,000 ), and (2) damage to persons in the minimum amount of five hundred thousand dollars ($500,000 ) in the event of death or injury to one individual, and the minimum amount of one million dollars ($ 1,000,000 ) in the event of death or injury to more than one individual. These minimum amounts and terms are subject to change at the sole discretion of the authorized officer at five-year anniversary date of this authorization. The coverage shall extend to property damage, bodily injury, or death rising out of the holder's activities under the permit including, but not limited to, occupancy or use of the land and the construction, maintenance, and operation of the structures, facilities, or equipment aUthorized by this permit. Such insurance shall also name the United States as an additionally insured. The holder shall send an authenticated copy of its insurance policy to the Forest Service immediately upon issuance of the policy. The policy shall also contain a specific provision or rider to the effect that the policy shall not be cancelled or its provisions changed or deleted before thirty (30) days written notice to the Forest Supervisor, Rogue River National Forest, P.O. Box 520, Medford, OR 97501 (Address) by the insurance company, Rider Clause (for insurance companies) lilt is understood and agreed that the coverage provided under this policy shall not be cancelled or its provisions changed or deleted before thirty (30) days of receipt of written notice to the Forest Supervisor, Rogue River national Forest, P.O. Box 520, Medford, OR 97501 (Address) by the insurance company." VI. FEES. A. Holder to pay fair market value for the permitted use. The holder must pay fair market value for the use of National Forest System land. 1. The provisions of the Graduated Rate Fee System (GRFS) identified under this permit may be revised by the Forest Service to reflect changed times and conditions. Changes shall become effective when: a. Mutually agreed; or, b. Permit is amended for other purposes; or, c. A new permit is issued including reissue after termination. 2. The Graduated Rate Fee System may be replaced in its entirety by the Chief of the Forest Service if a new generally applicable fee system is imposed affecting all holders of authorizations under PL99-522. Replacement shall become effective on the beginning of the holder's business year following establishment. B. Fees - Graduated Rate Fee System. The annual fees due the United States for those activities authorized by this permit shall be calculated on sales according to the following schedule: Kind of Business Grocery Service, food Service. car Merchandise Liquor Service Outfitting/Guiding Rental and Services Lodging Lifts, Tows, and Ski Schools Break-even point (Sales to GFA) (Percentage) 70 70 70 70 60 50 30 40 20 Rate Base (Percentage) .75 1. 25 1. 30 1. 50 1.80 2,00 4,50 4,00 Balance of Sales rate (Percentage) 1.13 1. 88 1. 95 2.25 2.70 3.00 6.75 6.00 2.00 5.00 1. A weighted-average break-even point (called the break-even point) and a weighted-average rate base (called the rate base) shall be calculated and used when applying the schedule to mixed business. If the holder's business records do not clearly segregate the sales into the business categories authorized by this permit, they shall be placed in the most logical category. If sales with a different rate base are grouped, place them all in the rate category that shall yield the highest fee. Calculate the fee on sales below the break-even point using 50 percent of the rate base. Calculate the fee on sales between the break-even point and twice the break-even point using 150 percent of the rate base. Calculate the fee on sales above twice the break-even point using the balance of sales rate. 2. The m~n~mum annual fee for this use, which is due in advance and is not subject to refund, shall be equal to the fee that would result when sales are 40 percent of the break-even point. This fee shall be calculated and billed by the Forest Service during the final quarter of the holder's fiscal year, using the most recent GFA figure and previously reported sales data for the current year, plus, if the operating season is still active, estimated sales for the remainder of the year. C. Surcharge. [Use when there is a surcharge.] A surcharge of NA percent shall be applied to and added to the basic fee. The surcharge shall be applied for NA years beginning with the year that sales first occur under this operation. D, Definitions of Sales Categories and Gross Fixed Assets (GFA). 1. Sales categories. For purposes of recording and reporting sales, and sales-related information including the cost of sales, the activities of the concessioner are divided into: Grocery. Includes the sale of items usually associated with stores such as staple foods, meats, produce, household supplies. the sale of bottled soft drinks, beer and wine, when included in grocery operation. grocery Includes the Service, Food. Includes the serving of meals, sandwiches, and other items either consumed on the premises or prepared for carry out. Snack bars are included. Service, Cars. Includes servicing and the sale of fuels, lubricants, and all kinds of articles used in servicing and repairing autos, boats, snowmobiles, aircraft. Merchandise. Includes the sale of clothing, souvenirs, gifts, ski and other sporting equipment. Where a "Service, Carsll category of business is not established by this permit, the sale of auto accessories is included in this category. Service, Liquor, Includes the sale of alcoholic drinks for consumption on the premises and other sales ordinarily a part of a bar or cocktail- lounge business. Where a bar is operated in conjunction with a restaurant or overnight accommodations liquor, beer and wine sales shall be accounted for consistent with holder's normal business practice. The sale of a~coholic beverages for consumption off the premises is also included in this item, except as indicated in "Grocery". Outfitting, Guiding, Includes all activities or commercial guiding services involving back-country travel, regardless of mode of travel, when associated with a resort or dude ranch with a mixture of business. All fees charged are considered sales. Rentals and Services. Includes lodging where daily maid service is not furnished by the holder; the rental of camping space, ski equipment and other equipment rentals; fees for the use of cross-country ski trails. Also included are services such as barbershops. and amusements including video games. Lifts, Tows, and Ski Schools. Includes charges for use of ell types of uphill transportation facilities and for sports lessons and training. 2. Gross Fixed Assets. The capitalized cost of improvements, equipment, and fixtures necessary and used to generate sales and other revenue during the permit year on the permitted area or within the development boundary shown in this permit, GFA shall be established by and changed at the sole discretion of the authorized officer based on the current .interpretation of guidelines supporting the Graduated Rate Fee Syste~. a, Costs of the following items as presented by the holder and verified by a representative of the authorized officer to be in existence and in use are included: (1) Identifiable structures, major equipment, such as road maintenance equipment, or land improvements which pley a distinct role in the permitted activity. (2) Identifiable holder costs, to provide utility services to the area. Utility services that extend beyond the development boundary may be included in GFA to the extent they are necessary for the generation of sales and are paid by the holder, Costs for user surcharge or demand rates are not included as GFA. b. The following, and similar items, are not part of GFA: (1) Assets that ordinarily qualify for inclusion in GFA, but which are out of service for the full operating year for which fees are being determined. (2) Land, (3) Expendable or consumable supplies. (4) Intangible assets, such as goodwill, permit value, organization expense, and liquor licenses. (5) Improvements not related to the operation. (6) Luxury assets, to the extent their design and cost exceed functional need. (7) The prorata share of GFA assets used in off-site activities not directly associated with the authorized use. (8) Expensed assets. (9) Operating leases. As of the date of this permit, ( June 30. 1992 ) the initial GFA under this ownership has been determined to be $ 1.289.999 as shown in detail on attached exhibit 2 If an error is found in the GFA amount, it shall be changed to the correct amount retroactive to the date the error occurred and fees adjusted accordingly. E. Change of Gross Fixed Asset Amount Upon Sale or Change in Controlling Interest. Upon change of ownership, effective dominion or controlling interest or upon sale of assets or common stock which results in a change of ownership, effective dominion, or controlling interest, the value of Gross Fixed Assets shall be established applying Generally Accepted Accounting Principles (GAAP). F. Determining Sales and Other Revenue. Sales and Gross Fixed Assets shall be derived from all improvements and facilities, including those of sublessees, which constitute 'a logical single overall integrated busines~ operation regardless of the land ownership. A map shall be prepared designating the development boundary and may be augmented by narrative or table and shall becom~ a part of this permit. 1. Sales. Fees shall be assessed against all receipts from sales unless specifically exempted. Sales for the purpose of fee calculation include, (1) all revenue derived from goods and services sold which are related to operations under this permit and all revenue derived within the development boundary, unless otherwise excluded, (2) the value of goods and services traded-off for goods and services received (bartering) and (3) the value of gratuities. a. Definitions. (1) without owners, officers Gratuities. Goods, services or privileges that are provided charge or at deep discount to such individuals as employees, and officers or immediate families of employees, owners and and not available to the general public. (2) Acceptable Discounts. Transactions for goods or services below stated, listed or otherwise presented prices to the public at large. Included are.such things as group sales and organized programs. These are included in sales at the actual transaction price, (3) Discriminatory Pricing. Rates based solely on residence, race, color, or religion. Discounts based on age or disability are not discriminatory pricing. (4) Preferential Discounts. Discounts offered to certain classes or individuals based on their status, such as members of boards of directors, contractors, advertisers, doctors, and VIP'S. etc. (5) Market Price. The price generally available to an informed public excluding special promotions. It may not be the "window price". (6) Bartering or Trade Offs. The practice of exchanging goods or services between individuals or companies. (7) Commissions. Commissions are payments received by the holder for collecting revenue on behalf of others as an agent or providing services not directly associated with the operations, such as selling hunting and fishing licenses, bus or sightseeing tickets for trips off or predominantly off the permitted area, accommodating telephone toll calls, and so forth. (8) Franchise Receipts. These are payments made to specific permittees by sublessees solely for the opportunity to do business at a specific location. The permittee provides little, if anything, in the way of facilities or services. They may be the only fee paid to the permittee or, if some facilities or services are provided by the permittee, they may be made in addition to a rental fee, The franchise receipts may be in the form of fixed amounts of money or in reduced prices for the franchiserts product or service. b. Inclusions, The following items shall be included as gross receipts to arrive at sales: (1) Gratuities. Daily and season passes are valued at market price unless the permit holder has sufficient records of daily individual use to substantiate a "value of use1l. Value of use is the number of days the pass is used times the market price. Does not include employees. See (4) below. (2) Preferential Discounts. Include the amount that would have been received had the transaction been made at the market price. (3) Value of Discriminatory Pricing. disallowed, Include the amount that would transaction been made at the market price. Discriminatory pricing is have been received had the (4) Employee discounts in excess of 30 percent of market price. These discounts are exclusively given or provided to employees, owners, officers or immediate families of employees, owners or officers are gratuities and are included in sales at 70 percent of market price. Employee discounts less than 30 percent are recorded at transaction price. (5) Value of bartered goods and services (trade offs). (6) Gross sales of sublessees. Includes sales of State controlled liquor stores. (7) Fifty percent of franchise receipts. (8) All other revenue items not specifically excluded below shall be included as sales, c. Exclusions. The following items shall be excluded from gross receipts or revenue to arrive at sales: (1) Value of goods and services provided to employees, agents, contractors or officials to facilitate the accomplishment of their assigned duties or work-related obligation or to others for educational or technical competence related to the type of permitted use such as lift operation, ski patrol, water safety, avalanche control. etc. Similarly, local, state and federal government officials including Forest Service employees who in the course of their oversight responsibilities or otherwise on official business use goods or services. The holder is not required to report the value of such duty-related or official use as sales for fee calculation purposes. (2) The value of meals and lodging furnished by an employer to an employee for the employer's convenience is if, in the case of meals, they are furnished on the employer's business premises. The fact that the employer imposes a partial charge for or that the employee may accept or decline meals does not affect the exclusion if all other conditions are met. If employer imposes a charge for meals and lodging it shall be included at transaction price, The holder need not keep records of employee meals and lodging more detailed than those required by the Internal Revenue Service. (3) Refunds from returned merchandise and receipts from sales of real and nonrental personal property used in the operation. (4) Rents paid to the permittee by sublessees, even if based on sales. (5) Taxes collected on site from customers, accounted for as such in the holder's accounting records, and that were paid or are payable to taxing authorities. Taxes included in the purchase price of gasoline, tobacco and other products, but paid to the taxing authority by the manufacture or wholesaler are included in sales, and subject to the permit fee, (6) Amounts paid or payable to a Government licensing authority or recreation administering agency from sales of hunting or fishing licenses and recreation fee tickets. (7) Value of sales and commissions where the holder is serving as an agent for businesses not directly associated with the permitted operation. This includes such things as bus or sightseeing-ticket sales for trips not related to activities on the permitted area, telephone-toll charges, and accident-insurance sales. (8) Sales of operating equipment. Rental equipment, capitalized assets or other assets used in operations shall be excluded from gross receipts. Examples are such items as, used rental skis and boots, ski lifts, grooming equipment which are sold periodically and replaced. G. Concession Payment, Graduated Rate Fee System. Reports and deposits required as outlined above shall be tendered in accordance with the schedule below. They shall be sent or delivered to the Collection Officer, Forest Service, USDA, at the address furnished by the Forest Supervisor, Checks or money orders shall be payable to "Forest Service, USDA." 1. The holder shall report sales, calculate fees due and make payment each calendar MONTH (month, quarter, or year) except for periods in which no sales take place and the holder has notified the authorized officer that the operation has entered a seasonal shutdown for a specific period. Reports and payments shall be made by the 30th of the month following the end of each reportable period, 2. The authorized officer, prior to DECEMBER 1 ,shall furnish the holder with a tentative rate which shall be applied to sales in the fee calculation (item 1), such rate to be one that shall produce the expected fee based on past experience. The correct fee shall be determined at the end of the year and adjustment made as provided under item (5). Any balance that may exist shall be credited and applied against the next payment due. 3. During the final fiscal month, pay within 30 days of billing by the Forest Service, the annual minimum fee for the next year. 4, The holder must also provide within three (3) months after close of its operating year a balance sheet representing its financial condition at the close of its business year, an annual operating statement reporting the results of operations including yearend adjustments for itself and each sublessee for the same period, and a schedule of Gross Fixed Assets adjusted to comply with the terms of this permit in a format and manner prescribed by the authorized officer. If the holder fails to report all sales in the period they were made or misreports Gross Fixed Assets and the authorized officer determines that additional fees are owed, the holder shall pay the additional fee plus interest. Such interest shall be assessed at the rate specified in clause I and shall accrue from the date the sales or correct Gross Fixed Assets should have been reported and fee paid until the date of actual payment of the underpaid fee, 5. Within 30 days of receipt of a statement from the Forest Service, pay any additional fee required to correct fees paid for the past year's operation. 6, Payments shall be credited on the date received by the designated collection officer or deposit location. If the due date for the fee or fee calculation financial statement falls on a non-workday, the charges shall not apply until the close of business on the next workday. 7. All fee calculations and records of sales and Gross Fixed Assets are subject to periodic audit. Errors in calculation or payment shall be corrected as needed for conformance with those audits. Additional fees and interest due as a result of such audits shall be in accordance with item 4, paragraph 2. 8. Disputed fees must be paid in a timely manner. H. Interest and Penalties. 1. Pursuant to 31 USC 3717 and 7 CFR Part 3, Subpart B, or subsequent changes thereto, interest shall be charged on any fee not paid within 30 days from the date the fee or fee calculation financial statements specified in this permit was due. 2, Interest shall be assessed using the higher of (1) the most current rate prescribed by the United States Department of the Treasury Financial Manual (TFM-6-8025,40) or (2) the prompt payment rate prescribed by the United States Department of the Treasury under section 12 of the Contract Disputes Act of 1978 (41 use 611). Interest shall accrue from the date the fee or fee calculation financial statement is due. In the event the account becomes delinquent, administrative costs to cover processing and handling of the delinquent debt may be assessed. 3, A penalty of 6 percent per year shall be assessed on any fee overdue in excess of 90 days, and shall accrue from the due date of the first billing or the date the fee calculation financial statement was due. The penalty is in addition to interest and any other charges specified in item 2. 4, Delinquent fees and other charges shall be subject to all the rights and remedies afforded the United States pursuant to federal law and implementing regulations. (31 U.S.C. 3711 et ~). T. Nonpayment. Failure of the holder to make timely payments, pay interest charges or any other charges when due, constitutes breach and shall be grounds for termination of this authorization. This permit terminates for nonpayment of any monies owed the United States when more than 90 days in arrears. J. Access to Records. For the purpose of administering this permit (including ascertaining that fees paid were correct and evaluating the propriety of the fee base), the holder agrees to make all of the accounting books and supporting records to the business activities, as well as those of sub lessees operating within the authority of this permit, available for analysis by qualified representatives of the Forest Service or other Federal agencies authorized to review the Forest Service activities. Review of accounting books and supporting records shall be made at dates convenient to the holder and reviewers. Financial information so obtained shall be treated as confidential as provided in regulations issued by the Secretary of Agriculture . The holder shall retain the above records and keep them available for review for 5 years after the end of the year involved, unless disposition is otherwise approved by the authorized officer in writing. K. Accounting Records, The holder shall follow Generally Accepted Accounting Principles or Other Comprehensive Bases of Accounting acceptable to the Forest Service in recording -financial transactions and in reporting results to the authorized officer. When requested by the authorized officer, the holder at own expense, shall have the annual accounting reports audited] or prepared by a licensed independent accountant acceptable to the Forest Service, The holder shall require sublessees to comply with these same requirements. The minimum acceptable accounting system shall include: 1. Systematic internal controls and recording by kind of business the gross receipts derived from all sources of business conducted under this permit. Receipts should be recorded daily and, if possible, deposited into a bank account without reduction by disbursements. Receipt entries shall be supported by source documents such as cash-register tapes, sale invoices, rental records, and cash.accounts from other sources. 2. A permanent record of investments in facilities (depreciation schedule), current source documents for acquisition costs of capital items. 3. may be Preparation and maintenance of such special records and accounts as specified by the authorized officer. VII. TRANSFER AND SALE. A. Subleasing. The holder may sublease the use of land and improvements covered under this permit and the operation of concessions and facilities authorized upon prior written notice to the authorized officer. The Forest Service reserves the right to disapprove subleasees. In any circumstance, only those facilities and activities authorized by this permit may be supplied. The holder shall continue to be responsible for compliance with all conditions of this permit by persons to whom such premises may be sublet. The holder may not sublease direct management responsibility without prior written approval by the authorized officer. B. Notification of Sale. authorized officer when a sale improvements is planned. The holder shall immediately notify the and transfer in ownership of the permitted , C. Divestiture of Ownership. Upon change in ownership of the facilities authorized by this permit, the rights granted under this authorization may be transferred to the new owner upon application to and approval by the authorized officer, The new owner must qualify and agree to comply with and be bound by the terms and conditions of the authoriza- tion. In granting approval, the authorized officer 'may modify the terms, conditions, and special stipulations to reflect any new requirements imposed by current Federal and state land use plans, laws, regulations or other management decisions. VIII. TERMINATION. A. Termination for Hi~her Public Purpose. If, during the term of this permit or any extension thereof, the Secretary of Agriculture or any official of the Forest Service acting by or under his or her authority shall determine by his or her planning for the uses of the national forest that the public interest requires termination of this permit, this permit shall terminate upon one hundred-eighty (180) day's written notice to the holder of such determination, and the United States shall have the right thereupon, subject to Congressional authorization and appropriation, to purchase the holder's improvements, to remove them, or to require the holder to remove them, at the option of the United States, and the United States shall be obligated to pay an equitable consideration for the improvements or for removal of the improvements and damages to the improvements resulting from their~removal. The amount of the consideration shall be fixed by mutual agreement between the United States and the holder and shall be accepted by the holder in full satisfaction_of all claims against the United States under this clause: Provided, That if mutual agreement is not reached; the Forest Service shall determine the amount and if the holder is dissatisfied with the amount thus determined to be due him he may appeal the determination in accordance with the Appeal Regulations and the amount as determined on appeal shall be final and conclusive on the parties hereto; Provide further, that upon the payment to the holder of 75% of the amount fixed by the Forest Service, the right of the United States to remove or require the removal of the improvements shall not be stayed pending final decision on appeal. B. Termination, Revocation and Suspension. The authorized officer may suspend, revoke, or terminate this permit for (I) noncompliance with applicable statutes, regulations, or terms and conditions of the authorization; (2) for failure of the holder to exercise the rights and privileges granted; (3) with the consent of the holder; or (4) when, by its terms, a fixed agreed upon condition, event, or time occurs. Prior to suspension, revocation, or termination, the authorized officer shall give the holder written notice of the grounds for such action and reasonable time to correct cureable noncompliance. IX. RENEWAL. A. Renewal. The authorized use may be renewed. Renewal requires the following conditions.: (1) the land use allocation is compatible with the Forest Land and Resource Management Plan; (2) the site is being used for the purposes previously authorized and; (3) the enterprise is being continually operated and maintained in accordance with all the provisions of the permit. In making a renewal, the authorized officer may modify the terms, conditions, and special stipulations. X, RIGHTS AND RESPONSIBILITIES UPON TERMINATION OR NONRENEWAL. A, Removal of Improvements. Except as provided in Clause VIII.A, upon termination or revocation of this special use permit by the Forest Service, the holder shall remove within a reasonable time as established by the authorized officer, the structures and improvements and shall restore the site to a condition satisfactory to the authorized officer, unless otherwise waived in writing or in the authorization. If the holder fails to remove the structures or improvements within a reasonable period, as determined by the authorized officer, they shall become the property of the United States without compensation to the holder, but that shall not relieve the holder's liability for the removal and site restoration costs. XI. MISCELLANEOUS PROVISIONS. A. Members of Congress. No Member of or Delegate to Congress or Resident Commissioner shall be admitted to any share or part of this agreement or to any benefit that may arise herefrom unless it is made with a corporation for its general benefit. B. Inspection, Forest Service. The Forest Service shall monitor the holder's operations and reserves the right to inspect the permitted facilities and improvements at any time for compliance with the terms of this permit. Inspections by the Forest Service do not relieve the holder of responsibilities under other terms of this permit. C. Regulating Services and Rates. The Forest Service shall have the authority to check and regulate the adequacy and type of services provided the public and to require that such services conform to satisfactory standards. The holder may be required to furnish a schedule of prices for sales and services authorized by the permit. Such prices and services may be regulated by the Forest Service: Provided, that the holder shall not be required to charge prices significantly different than those charged by comparable or competing enterprises. D. Advertising. The holder, in advertisements, signs, circulars, brochures, letterheads, and like materials as well as orally, shall not misrepresent in any way, either the accommodations provided, the status of the permit, or the area covered by it or the vicinity. The fact that the permitted area is located on the National Forest shall be made readily apparent in all of the holder's brochures and print advertising regarding use and management of the area and facilities under permit. E. Bonding. The authorized officer may require the holder to furnish a bond or other security to secure all or any of the obligations imposed by the terms of the authorization or any applicable law, regulation, or order. Bonds, Performance. When bonding is called for the following shall be used: As a further guarantee of the faithful performance .of the provisions of terms and conditions OF THE RESTORATION ENVIRONMENTAL ANALYSIS IDENTIFIED IN THE OPERATION PLAN of this permit, the holder agrees to deliver and maintain a surety bond or other acceptable security in the amount of TWO HUNDRED THOUSAND DOLLARS ($200,000). Should the sureties or the bonds delivered under this permit become unsatisfactory to the Forest Service, the holder shall, within thirty (30) days of demand, furnish a new bond with surety, solvent and satisfactory to the Forest Service. In lieu of surety bond, the holder may deposit into a Federal depository, as directed by the Forest Service, and maintain therein, cash in the amounts provided for above, or negotiable securities of the United States having a market value at time of deposit of not less than the dollar amounts provided above. The holder's surety bond shall be released, or deposits in lieu of bond, shall be returned thirty (30) days after certification by the Forest Service that priority installations under the development plan are complete, and upon furnishing by the holder of proof satisfactory to the Forest Service that all claims for labor and material on said installations have been paid or released and satisfied. The holder agrees that all moneys deposited under this permit may, upon failure on his or her part to fulfill all and singular the requirements herein set forth or made a part hereof, be retained by the United States to be applied to satisfy obligations assumed hereunder, without prejudice whatever to any rights and remedies of the United States. Prior to undertaking additional construction or alteration work not provided for in the above terms and conditions or when the improvements are to be removed and the area restored, the holder shall deliver and maintain a surety bond in an amount set by the Forest Service, which amount shall not be in excess of the estimated loss which the Government would suffer upon default in performance of this work. F. Water Rights. water by the holder. This authorization confers no rights to the use of Such rights must be acquired under State Law. G. Current Addresses. The holder and the Forest Service shall keep each informed of current mailing addresses including those necessary for billing and payment of fees. H. Identification of Holder. Identification of the holder shall remain sufficient that the Forest Service shall know the true identity of the entity. Corporation Status Notification: 1. The holder shall notify the authorized officer within fifteen (15) days of the following changes: a. Names of officers appointed or terminated. b. Names of stockholders who acquire stock shares causing their ownership to exceed 50 percent of shares issued or otherwise acquired controlling interest in the corporation. 2. The holder shall furnish the authorized officer: a. A copy of the articles of incorporation and bylaws. b. An authenticated copy of a resolution of the board of directors specifically authorizing a certain individual or individuals to represent the holder in dealing with the Forest Service, c, A list of officers and directors of the corporation and their addresses. d. Upon request, a certified list of stockholders and amount of stock owned by each. e, The authorized officer may require the holder to furnish additional information as set forth in 36 eFR 25l.54(e)(1)(iv). Partnership Status Notification: The holder shall notify the following changes. with the notification. the authorized officer within fifteen (15) days of Names of the individuals involved shall be included 1. Partnership makeup changes due to death, withdrawal, or addition of a partner. 2, Party or parties assigned financed interest in the partnership by existing partner(s). 3. Termination, reformation, or revision of the. partnership agreement, 4. The acquisition of partnership interest, either through purchase of an interest from an existing partner or partners or contribution of assets, that exceeds 50 percent of the partnership permanent investment. I. ArchaeoloRical-Paleontological Discoveries, The holder shall immediately notify the authorized officer of any and all antiquities or other objects of historic or scientific interest. These include, but are not limited to, historic or prehistoric ruins, fossils, or artifacts discovered as the result of operations under this permit, and shall leave such discoveries intact until authorized to proceed by the authorized officer. Protective and mitigative measures specified by the authorized officer shall be the responsibility of the permit holder. J. Protection of Habitat of Endan~ered, Threatened, and Sensitive Species. Location of areas needing special measures for protection of plants or animals listed as threatened or endangered under the Endangered Species Act of 1973, as amended, or as sensitive by the Regional Forester under authority of FSM 2670, derived from ESA Section 7 consultation, may be shown on a separate map, hereby made a part of this permit, or identified on the ground. Protective and mitigative measures specified by the authorized officer shall be the responsibility of the permit holder. If protection measures prove inadequate, if other such areas are discovered, or if new species are listed as Federally threatened or endangered or as sensitive by the Regional Forester, the authorized officer may specify additional protection regardless of when such facts become known. Discovery of such areas by either party shall be promptly reported to the other party. K. Superior Clauses. In the event of any conflict between any of the preceding printed clauses or any provision thereof and any of the following clauses or any provision thereof, the preceding clauses shall control. L. Superseded Permit, This permit replaces a special use permit issued to: Ski Ashland, Inc. (Holder Name) on February 27 (Date) 1986 ( M. Disputes. Appeal of any provisions of this authorization or any requirements thereof shall be subject to the appeal regulations at 36 CFR 251, Subpart C, or revisions thereto. The procedures for these appeals are set forth in 36 CFR 251 (54 Fed. Reg. 3362, January 23, 1989). Public reporting burden for this collection of information is estimated to average 16 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Department of Agriculture, Clearance Officer, OIRM, Room 404-W, Washington D.C.20250; and to the Office of Management and Budget, Paperwork Reduction Project (OMB # 0596-0082), Washington, D.C. 20503. Note: Additional provlslons may be added by the authorized officer to reflect local conditions. I United States Department of Agriculture f- .''est lice Rogue River National Forest "-"land Ranger District ; Washington Street Ashland, OR 97520 503-482-3333 Reply To: 2720 Date: October 29, 1992 Ci ty of Ashland Attn: Brian Almquist Ci ty Hall Ashland, Or. 97520 Dear Mr Almquist: In accordance with Clause VII. Transfer and Sale, A. Subleasing, of the Ski Area Term Special Use Permit, you are granted permission to sublease the operation of concessions, facilities and direct management of the Mt Ashland Ski Area. . Sincerely, {),j' ' .4 (7 () l/(,r;i1/jl'i C)'/IQ'v':JL--. MARY L SMELCER District Ranger ~ / City of Ashland Gross Fbed;:Assets Value Estmated.Value \ of Total Value BUILDING: Main Lodge Ski ShopfMaint. Shop Lift Shop Mise. Buildings Sub Total $135,999 125;000 10,000 10,000 28D,999 10.46% 9.62\ 0.77% 0.77% 21.62% EQU 1 PMENTS : Chair Lifts: Ariel windsor COllier SOJUlet Night Light system Mobile: Old Spryte J . D 340 w/hoe DMC 3700 ute 3700C f3 lMC 3700C i5 lMC 3700C #6 Road & utility Veil. Sub Total . TOTAL ALL ASSJn'S 175.000 13.46' 200,000 15.38\ 160,000 12.31% 130.000 10.00t 50,000 3.85% It, 000 0.62% 6,000 o . 4 6% 15,000 1.15t 30,000 2.3U 35,000 2.69\ 35,000 2.69\ 10,000 0.77\ 854,000 65.69\ 18,88S" e.17~ 30,000 2.31% 65,000 !i. oot 25,000 .1.92\ 20,000 1.54\ 15,000 . 1_15\ 16S,S88 155,000 12.69\ 1 t!J9-~ 100.00\ $ 1', 289~ 999 IMPROVEMENTS: Ash 9ffiee eeM~ .. Main Lodge - contents Ski Shop - contents Maint. Shop - contents Lift Shop' - contenu Misc. Buildings - contents Sub Total " Ashland Office contents not allowed because they are outside the permit.area. c0'.d lBCl 88V 6 01 1S3~0~ l1~ ~3~1~ 3nDO~ W~~ 0S:~1 c661-6c-Nnf Q) <( {J}-- ffi ~ ~ ~ I'\\;~\\~I i: ,\,/J;;;'~\'~~ "-~ :-- ~Il~ ~ <(~g ~ ~ .. ~ L\t~~ \11, , , , "I! n u . , . ~ ~ " w W '7' " ,,)',.t'" ':' ';; leI ~'&. '~--1{" \ . 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'-", \.:',/\ 1\' \\'\1;')1'1'1/.'1' '~'o/':II"/ ")'!. ~,/ '...j;; d'o.o,,;.: ': :"';~~j' ~ // '/" III If;,. ~ ("Y I ' C, ' ~) ~ ,~/ "o'/. ,~~"j!(~ -,-, . ;!fl'i,,(~ -- - ~I! >'I~ ~)IJ~~(~I~~_.1 (1K~=~. I'<'~' . J~J..; '.7.\ ~y~~~~ .~~~~ 'r',"). /~ ',~ $,~111{'-, \ ~C\;,~9:~z.~, 0,~.,)lr~~ '-'-~~" ~ ~ u 'v i J i . . i'l!' II I I'! i ~ IJ 11 ;'j! ~ iii ~ ~! 1 0010'\;0.', ~. -~\ a~ '-" ?-J -w- $'-"''''''~<.l. f',/O"" t. I\--t} lh. ~,,~? 92- 100 'I --- -1:-\ ....,.- "."\0' , ~, MT. ASHLAND SKI AREA LEASE This Lease Agreement is made and entered into this !i1h... day of V 1992 (hereinafter the "effective date of this Agreement"), by and between ASHLAND ("Lassor") and the MT ASHLAND ASSOCIATION, an Oregon corporation ("Lessee"). In consideration of the mutual promises set forth herein, the Lessor and Lessee agree as follows: 1. Imm. The initial term of thls Lease shall begin on the.date indicated above and shall terminate on June 30,2017. At any time on or before June 30,2017, Lessee . shall have the right, if the Lease has not theretofore been terminated by either party and if Lessee is not then in default with respect to any obligation under this Agreement, to notify Lessor in writing that the term of the Lease shall be extended for . . . . an additional twenty-five (25) years, until June 30, 2042, in which case the Lea$e term shall be so extended. Notwithstanding the two preceding sentences, Lessee's leasehold rights under this Agreement shall terminate upon the expiration or other termination of Lessor's rights under the Permit. 2. Definitions: Description of Leased PropertY: Permit: and Lease Aareement. 2.1. Definitions: Description of Leased Property. As used in this Agreement, the following terms shall have the indicated meanings: 2.1.1. "Permit" shall mean and refer to that certain United States Department of Agriculture Forest Service Spacial Use Permit which is attached to this Agreement as Exhibit "A", and any subsequent permit which may be issued as a . replacement or renewal of the permit attached hereto as Exhibit " A". 2.1.2. "Permit Property" shall mean and refer to that certain real property located on Mt. Ashland, in Jackson COunty, Oregon which is described in and is subject to the Permit, together with all improvements owned by Lessor and now or hereafter constructed or existing thereon. 2.1.3. "Equipment" shall mean and refer to all personal property, fixtures, furnishings, inventory and items of equipment owned by Lessor which are now attached to or located on or about the Permit Property, including but not limited to the items of personal property identified on Exhibit "B" attached hereto. As soon as practicable after the execution of this Agreement, Lessor and Lessee shall cause to be taken a physical inventory of all personal property, fixtures, furnishings, inventory and items of equipment owned by Lessor which are now attached to or located on or about the Permit Property, and shall amend Exhibit "B" to conform with that physical inventory, it being the intention of the parties that this Agreement apply only to those items of personal property verified by the physical inventory and listed on Exhibit "B" as so amended. PAGE 1-MT. ASHLAND SKI AREA LEASE (p:dally\sklaah\maa-ffdJse) --- -- ~:-.. 1., '. .. . 2.1.4. 'Leased Property" shall mean and refer to the Permit Property and the Equipment. 2.1.5. 'Index' shall refer to the following index published by the Bureau of Labor Statistics of the United States Department of Labor: Consumer Price Index, Ail Urban Consumers (CPI-U), U.S. City Average, CPI--Allltems rstandard reference base period' 1982-84 = 100). "Base CPllndex Figure" shall refer to the Index number indicated for the month of January, 1992, and the "CPllndex FIgure" for any other month shall refer to the Index number for that month. If the "Index" is no longer being published as of a particular date, then the "CPI Index Rgure" for that date shall be the figure reported in the U.S. Department of Labor's most recent comprehensive official index then in use and most nearly answering the description of the Index (or, if the U.S. Department of Labor is not then publishing any such similar Index, shall be determined under another comparable, authoritative, generally recognized index to be selected by mutual agreement of Lessor and Lessee). If the Index is calcul~tes:l from a base different from the base 1982-84 = 100, then the figures to be used In caltulating any adjustment mandated under this Agreement first shall be converted (If possible, under a formula supplied by the Bureau of Labor Statistics of the U.S. Department of Labor) to account for that difference. ' 2.1.6. For purposes of this Agreement, the "Minimum UquldaUon Value" for the Laased Property with respect to any particular calendar year shall be determined as follows: 2.1.6.1. With respect to the 1992 calendar year, the "Minimum Uquidation Value" shall be $200,000.00. 2.1.6.2. With respect to the 1993 calendar year and each subsequent calendar year throughout the Lease term, the "Minimum Uquidation Value" for a particular calendar year shall be determined by multiplying $200,000.00 by a fraction, the numerator of which is the CPI Index Rgure for the month of January of that subject calendar year, and the denominator of which is the Base CPllndex Figure. To illustrate the preceding sentence, the "Mini!11um Uquidation Value" for the 1998 calendar year will be equal to the product determined by multiplying $200,000.00 by a fraction, the numerator of which is the CPI Index Rgure for the month of January, 1998, and the denominator of which is the Base CPllndex Figure. 2.1.6.3. Notwithstanding the provisions of Paragraph 2.1.6.2, the Minimum Uquidation Value of the Laased Property shall never decrease, regardless of any decline in the Index. 2.1.7. "Ski Area Trust Fund" shall mean and refer to a segregated trust fund which shall be held, invested and maintained by the City of Ashland, as trustee, and shall be administered and distributed for the benefit of the Lassee and the Lessor in accordance with the provisions of this Agreement. The initial principal of the Ski Area Trust Fund shall be contributed to the Fund by the City of Ashland on the PAGE 2-MT. ASHLAND SKI AREA LEASE (p:dally\IlIda8h\m.a-fld.lse) '- '-' " ~ effective date of this Agreement, and shall consist of those assets which are identified on Exhibit 'Coo attached to this Agreement. 2.2. Permit. The terms, covenants, provisions and conditions of the Permit are incorporated into this Lease and Lessee assumes responsibility for payment and performance of all obligations of the City of Ashland under the Permit. Lessee agrees to hold harmless, defend and indemnify Lessor from and against any loss, clai.m or liability suffered by or asserted against Lessor as a result of Lessee's failure to fully pay and perform the obligations of the Permit. 2.3. lease Agreement. Lessor hereby leases the Leased Property to Lessee, and lessee leases the Leased Property from Lessor, subject to all of the terms and conditions contained in this Agreement. 2.3.1. Lessee is thoroughly familiar with the Leased Property and its condition and state of repair, and agrees to take the leased Property in its preSent condition, and specifically agrees that all of the Leased Property is in an acceptable condition for the purpose for which leased. Lessor makes no warranty of merchantability or fitness of the leased Property for any purpose. Neither Lessor nor its agents have made any representations with respect to the Leased Property except , as expressly set forth in this Lease, and no rights are acquired by Lessee by implication In fact or In law, or otherwise, except as expressly set forth In this lease. Taking possession of the Leased Property shall be conclusive evidence that Lessee accepts the leased Property 'as Is' and 'with any and ail faults'. 3. Use of Leased Prooertv. lessee shall have sole and exclusive possession and use of the leased Property during the entire term of this Lease for the purpose of constructing, improving, maintaining and operating year-round educational and/or recreational facilities for the benefit of the general public Oncluding but not limited to a ski area and/or winter sports resort). 4. Consideration. Lessee is a not-for-profrt corporation, all assets of which will devolve to Lessor in the event of lessee'sdissolution and liquidation. In addition, lessee has assisted Lessor in Obtaining the funds necessary to purchase the Leased Property. Under these circumstances the parties have determined that a lease payment of $1.00 per year is full and adequate consideration for this Lease. 5. Trtle to Assets. Throughout the entire Lease term the Permit Property and the Equipment shall be and remain the property of the Lessor. . 5.1. All buildings, structures, facmties and improvements of whatever kind and nature erected upon or made to the Permit Property by Lessee during the term of this Lease, together with any and all additions or alterations thereto and any permanent fixtures now or hereafter affixed or attached thereto, shall upon termination of this Lease become the property of Lessor. PAGE 3-MT. ASHLAND SKI AREA LEASE (p:daIly\Bldash\maa.lId,lse) --- - <. ',. 5.2 Lessor shall not acquire any ownership, title or interest in any machinery, equipment, appurtenance or fixture hereinafter placed by Lessee in or upon the Permit Property which is not so affixed as to become an integral part of the buildings structures, facilities or improvements located on the Permit Property; provided, however, that if any machinery, equipment, appurtenance or fixture replaces a portion of the Permit Property or the Equipment or serves a similar function to the Permit Property or the Equipment, or is necessary to preserve the value specified in . Paragraph 7.1, then such machinery, equipment, appurtenance or fixture shall become and remain the property of the Lessor. 6. Alterations. Lessee shall have the right to make changes to and alterations of the Leased Property, subject to the following conditions: 6.1. Except as herein provided, Lessee may at Lessee's expense make such alterations, improvements, additions and changes to the Leased Property as it may deem necessary or expedient in the operation of the Leased Property, provldeCl that Lessee, without the written consent of Lessor (which consent shall not be unreasonably withheld) shall not tear down or materially demolish any of the improvements upon the Permit Property or make any material change or alteration in such Improvements, which, when completed, would substantially diminish the value or substantially alter the use of the Leas8d Property. 6.2. At all times when any change or alteration is in progress, there shall be maintained, at Lessee's expense, workers' compensation insurance in accordance with laws covering all persons employed in connection with the change or alteration, and general liability insurance in accordance with laws covering all persons employed in connection with the change or alteration, and general liability insurance for the mutual benefit of Lessee and Lessor expressly covering the additional hazards due to the change or alteration. 7. Repair and Maintenance. Lessee shall not cause or permit any waste, damage or injury to the Leased Property. Lessee, at its sole expense shall keep the Leased Property as now or hereafter constituted (with all improvements made thereto) clean and in good condition (reasonable wear and tear excepted) and shall make all repairs, including all structural repairs, necessary to maintain the Leased Property. All repairs, replacements, and renewals shall be at least equal in quality of materials and workmanship to that originally existing in the Leased Property. Lessor shall in no event be required to make any repair, alteration, or improvement to the Leased Property. Any fixture, equipment or materials replaced by Lessee shall belong to Lessor, and all proceeds from the disposition thereof shall belong to Lessor. Lessee shall indemnify Lessor against all costs, expenses, liabilities, losses, damages, suits, claims and demands because of Lessee's failure to comply with the requirements of . this Paragraph 7, and Lessee shall not call upon Lessor for any disbursement or outlay whatsoever in connection therewith, and hereby expressly releases and discharges Lessor of and from all liability therefor. . PAGE 4-MT. ASHLAND SKI AREA LEASE (p:dany\sklaah\maa.ffd.lse) '-- -- ~ 7.1. Lessee shall perform its obligations for maintenance and repair, shall make improvements to the Permit Property, and shall replace portions of the Equipment, as required to ensure that the actual liquidation value of the Leased Property is not less than the Minimum Uquidation Value of the Leased Property. 7.1.1. Lessee shall not be required under this Paragraph 7.1 to replace any portions of the Equipment which are not needed in Lessee's operations, except that this provision shall not operate as a waiver of Lessee's obligation to maintain the actual liquidation value of the Leased Property at a level not less than the Minimum Uquidation Value of the leased Property. If for any reason the actual liquidation value of the leased Property declinas below the Minimum Uquidation Value of the Leased Property, then lessee shall deposit into the Ski Area Trust Fund a sum of money ("the Restoration Sum') equal to the difference between the actual liquidation value of the Leased Property and the Minimum Uquidation Value of the Leased Property. The Restoration Sum shall . . be so deposited within ninety days after delivery to. Lessee from lessor 'Of written demand therefor. If Lessee disputes the lessor's determination of deficiency, then lessor shall proceed as provided in Paragraph 7.1.3. Except as provided in Paragraph 7.1.2 or as otherwise agreed in writing by Lessor and Lessee, amounts deposited by Lessee Into the Ski Area Trust Fund pursuant to this Paragraph shall be used only for costs of restoration of the Permit Property as required under the Permit, and the trustee shall not use or permit the use of the assets of the Ski Area Trust Fund for any other purpose. l. 7.1.2. In recognition and support of Lessee's intention to provide educational and recreational programs to residents of the City of Ashland and to operate the Leased Property in a manner which will stimulate the economy of the City, and in recognition of Lessee's inability to commence ski area operations for the 1992 . 1993 ski season without financial support from the City, Lessor authorizes the trustee to pay and distribute to Lessee, within 30 days after the effective date of this Agreement, the entire principal of the Ski Area Trust Fund. During 1993 and all subsequent years throughout the Lease term, the trustee shall distribute to Lessee, promptly upon demand from Lessee, all amounts of principal theretofore deposited by the Lessee to the Ski Area Trust Fund pursuant to F'aragraph 7.1.1, but only If and to the extent that the sum of the value of the assets remaining in the Ski Area Trust Fund (after making that withdrawal) plus the actual liquidation value of the Leased Property at that time exceeds the Minimum Uquidation Value of the Leased Property at that time. Lessee shall not under any circumstances be entitled to receive any Income earned with respect to the Ski Area Trust Fund. All income earned with resp~ to the Ski Area Trust Fund shall be credited to (and shall be deemed for all purposes to have been earned by) the City of Ashland, but shall be held and retained by the trustee in the Ski Area Trust Fund for use in connection with the eventual restoration of the Permit Property. All income and principal remaining in the Ski Area Trust Fund upon termination of the Lease shall be distributed by the trustee to the City of Ashland. PAGE 5-MT. ASHLAND SKI AREA LEASE (p:dally\sklash\maa.ffd.lse) '-' --- ',' 7.1.3. Whenever Lessor reasonably determines that the sum of the actual liquidation value of the Leased Property plus the amounts then held by the City of Ashland in the Ski Area Trust Fund is less than the Minimum Uquidation Value of the Leased Property, Lessor may request an appraisal of the Leased Property by an independent qualified appraiser chosen by Lessee from a list of not fewer than three submitted by Lessor in conjunction with the request. If Lessee does not make the choice within five days, Lessor may do so. The appraiser shall have access to all of Lessee's records as neCessary for the appraisal and shall take such steps as the appraiser deems necessary to make a competent appraisal. The appraiser shall report to the parties within 30 days after being chosen. The report shall be final and binding upon both parties. The cost of the appraisal shall be borne by the Lessee if the sum of the actual liquidation value of the Leased Property plus the amounts then held by the City of Ashland in the Ski Area Trust Fund is less than 110% of the Minimum Uquidation Value of the Leased Property. Otherwise the cost of the . . appraisal shall be bome by the Lessor. . 7.2. Lessee shall be solely responsible for any improvements, alterations or repairs to the Leased Property required pursuant to the Americans with Disabilities Act. 8. Utilities. Lessee shall be responsible for, and shall pay all charges for Janitorial services, garbage removal, gas, electricity, light, heat, power, telephone, sewage disposal and domestic water used, rendered or supplied upon or In connection with the Leased Property. 9. Fire and casualty insurance. Lessee covenants and agrees to keep the Leased Property Insured against loss by fire with extended coverage endorsement, including risk of loss resulting from collapse of the structures, lightning, vandalism and malicious mischief. Such Insurance policies shall at all times be maintained in force in an amount equal to the full insurable replacement value of the premises and properties insured. It is a condition of payment of such insurance premiums by Lessee that the proceeds of any such insurance shall be applied to the repairing or restoration of the property damaged whether the loss is partial or total. The City of Ashland shall be named as an additional insured on such policies. 10. Uability insurance.. Lessee shall procure, and during the term of this Lease shall continue in force, at Lessee's cost, public liability and property damage insurance, including ski operators liability coverage, issued by a responsible company with limits of not less than $500,000 per occurrence (combined single limit for bodily injury and property damage claims) or $500,000 per occurrence for bodily injury and $100,000 per occurre,!lce for property damage. Such insurance shall cover all risks arising directly or indirectly out of Lessee's activities on, or as a result of the condition of, the Leased Property and shall protect Lessor and Lessee against all claims of third persons. Certificates evidencing such insurance and bearing endorsements requiring 30 days written notice to Lessor prior to any change or cancellation shall be furnished to Lessor. It is agreed that the Lessor shall not be liable to any third persons as a result of the use of the Leased Property by the Lessee, its employees or agents, and PAGE 6-MT. ASHLAND SKI AREA LEASE (p:dally\Bklash\maa.lfd.lae) ...... --- " the Lessee covenants and agrees to save the Lessor harmless from the claims of said third persons by reason of the use of said premises by the Lessee herein. 11. Real prooerty taxes. In the event any property subject to this Lease shall be assessed for property taxes, such taxes shall be paid by the Lessee on or before the 15th day of November of the taxable year. 12. Default or breach. In the event the Lessee commits any default or breach of any of the terms or conditions of this Agreement and fails or neglects to correct the same within six months after notice thereof by the Lessor, then and in such event, the Lessor shall have the right to immediately expel the Lessee from the Leased Property and declare this Lease terminated. In the event the Lessee fails to operate the Leased Property as a ski area and/or winter recreation resort at any time during a period of twelve consecutive months, except for war, catastrophe, natural causes (lIlcludlng but not limited to' lack of sufficient snow for reasonably profitable operations), or other circumstances beyond the control of the Lessee, the Lessor shall have the iigl\t to immediately terminate this Lease. 13. Lessee Compliance with Environmental Laws. 13.1. Definition of 'hI'l7Art1nus material'. As used Is this Paragraph, the term 'hazardous material' means any hazardous or toxic substance, materlal, or waste, includ1ng, but not limited to, those substances, materials, and wastes listed in the United States Department of Transportation Hazardous Materials Table (49 C.F.R. fi 172.101) or by the United States Environmental Protection Agency as hazardous substances (40 C.F.R. Part 302) and any amendments, ORS 466.567, 466.205, 466.640 and 466.790 and regulations of the Oregon State Department of 'Environmental Quality, petroleum products and their derivatives, and such othar substances, materials and wastes as become regulated or subject to cleanup authority under any environmental laws. Environmental laws means those laws cited in this subparagraph. 13.2. Lessee's compliance with laws and oermits. Lessee shall cause the Leased Property and all operations conducted on the Leased Property Qncluding operations by any subtenants) to comply with all environmental laws. 13.3. . Umitation on uses of hazardous materials. Lessee shall not use or allow any agents, contractors or subtenants to use the Leased Property to generate, manufacture, refine, transport, treat, store, handle, recycle, release or dispose of any hazardous materials, other than as reasonably necessery for the operation of Lessee's activities as}Xlntemplated under this Agreement. 13.4. Lessor's Rights. Lessor shall have the right to conduct reasonable , inspectiOns and investigations of the Leased Property and the operations conducted / on the Leased Property at any time and from time to time, and Lessee shall cooperate fully with Lessor during such inspections and investigations. PAGE 7-MT. ASHLAND SKI AREA LEASE (p:daI1y\sklash\maa-lld....) --- ~ -~ , " 13.5. Indemnification. Lessee agrees to defend (with counsel approved by Lessor), fully indemnify, and hold entirely free and harmless Lessor from and against all claims, judgments, damages, penalties, fines, costs, liabilities, or losses Oncluding, without limitation, diminution in value of the Leased Property, damages for the loss or , restriction on the use of rentable or usable space or of any amenity of the Leased Property, damages arising from any adverse impact on marketing of space, sums paid in settlement of claims, attorney fees, consultant fees, and expert fees) which wise during or after the lease term and which are imposed on, or paid by or asserted against Lessor by reason or on account of, or in connection with, or arising out of Lessee's generation, manufacture, use. transportation. refinement, treatment, storage, or disposal of hazardous materials, or any release of hazardous materials as a result of Lessee's use or activities, or of Lessee's agents. contractors. or subtenants. 14. Umitatlon On Asslanment Or Sublease Bv Lessee. Lessee shall not assign this Lease or sublease any portion of the Leased Property without obtaining in each instance the written consent in advance of Lessor, which consent shall not be Withheld unreasonably, and which consent shall be deemed for ail purposes to have been given by Lessor if not expressly given or withheld within thirty (30) days after receipt by Lessor of Lessee's written request for that consent. In determining whether consent is reasonable, Lessor may consider any and all relevant factors, including, but not limited to, the financiai stability of the proposed sublessee or assignee and the extent to which the public Interest is affected by the sublease or the assignment. Consent by Lessor in anyone Instance shail not constitute a waiver or consent to any subsequent instance. 15. Miscellaneous. Nothing contained in this Agreement shall create between the parties hereto. or shall be relied upon by any other person as creating, any relationship of partnership, association, joint venture, principal and agent, or otherwise. The sole relationship ofthe parties hereto shail be that of landlord and tenant. 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. 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 court may judge to be reasonable attorney fees. Any notice required or permitted under this Agreement shall be deemed to have been given and delivered when personaily delivered or when deposited in the United States mail, as certified mail, postage prepaid, and addressed to the last-known address of the party being PAGE 8-MT. ASHLAND SKI AREA LEASE (p:dally\sklash\maa.lld.lse) ---" , . -- ~ provided with the notice. This Agreement shall inure to the benefit of and shall be binding upon the successors, assigns, heirs and personal representatives of Lessor and Lessee. This Lease 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 both of the parties. ,Wa'rver 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. 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 wa'rve or render unnecessary the consent to or approval of any subsequent similar act. This lease shall be govemed 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, ancIagrees that any legal procaedings with respect to this Agreement shall be filed and heard in the appropriate court in Jackson County, Oregon. . .' . 16. Nondiscrimination. In connection with any operations of Lessee under this lease, Lessee shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, or disability. Lessee shall not discriminate by segregation or otherwise against any person on the basis or race, color, religion, sex, national origin, age, or disability by curtailing or refusing to furnish accommodations, facilities, services, or use privileges offered to the public generally. Lessee: Lessor: MT. ASHLAND ASSOCIATION CITY OF ASHLAND :~L~~''''~- BY Its ~~ Mayor Cathy Golden B~-"J ~,,/~,_. ~... 1-- __ Nan Franklin, City Recorder PAGE 9-MT. ASHLAND SKI AREA LEASE (p:daily\8klash\maa-ffd.lse) ~ i .;~~~\~\,\~ i', :;f' '\L~"''''\ ,~ j ~~~~ ~ .....~g eJ@ -r:::~I;,~~tSJ,1 . ~"~", --'. ' -1"""~~\ rr;/(5 ~--r:~~ , ill, '\\'~( " " . h ,Yr" ~ 's;:: \-, 1 ~I \l.l~~ ct :E a:~ 1 1,,?!1UJ}[).:',' :'1 ~l~\\\~ \\\\ .' "~~ ... : I" .:" '\\,\\ \ i ''Ii,!:'.;,;; o;~ ~tll " ~\, \ .. 1.1. \ I) .., II' .. I" p . I \"\~ ~' " IN \ ' ~'~S;\\,)),))l"" '/ I, - :'1, '" ,~~: ~ .~.\\f" 1'\ /~'~ ~ \, . ",:'~~)~~ ~~ :;: ", ':I\~' ~)r ! / 1/ / ^" \ \ ";Il~' 0,,'.0,' ,I i1\a 1'--;+ II ,lIU~ "~ "'.~.'~\'Ij . 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'VV,-~............v J..- ) ').[- So-l:>t~;+\..J r r \cr to r-t) 'fV" ~~. 1 2 3 4 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR JACKSON COUNTY 5 6 7 MT_ ASHLAND ASSOCIATION, an Oregon non-profit corporation, Plaintiff{s), CASE NUMBER: 07-2744-E2(7) OPINION vs. 8 9 CITY OF ASIiLAND, Defcndant(s). 10 11 12 13 14 15 16 17 This matter came before the court for trial on October 16th and 17th 2008. The Court has reviewed the testimony of all of the witnesses presented at said trial, as well as all of the documentary evidence submitted by the parties, and further has considered the argument of counsel, Darrcl R. Jarvis on behalf of plaintiff and Jens Schmidt on behalf of defendant, and, being otherwise fully advised in the premises, the court setq forth the following Opinion. 18 O'PINlON 19 20 The c:ourt first makes the observation that the presentation of evidence and argwnent in 21 22 23 24 25 26 this case was clear and concise. The court always appreciates a well tried case. Regardless of any parties' view of the outcome of the matter, all parties should recognize that they were welI served by their legal representation throughout these proceedings. Plaintifl's First Claim for Reliefsccks a declaration and determination of the respective rights of the parties under their lease. After a lengthy history ofnoninvolvemcnt by the City of 27 Ashland (hereinafter "City") in the affairs and operations of the plaintiff's ski facility, things 28 changed fairly drastically after the issuance of the United States Forest Services' (hereinafter OPINION 1 10/23/08 THU 13:07 [TX/RX NO 64261 VVI L-V t-VVV\lllV/ IV.VI VCI............;.tVI1 .....V......I'-:1 V..........I....... ... I ",/..........., I'..... .'-'U, 1 "USFS") Record of Dc cis ion (hereinafter "ROD") in 2004. In September of2005, the Ashland 2 3 City Council (hereinafter "City CounCIl") passed Resolution 2005-35 (Exhibit 3). The Resolution set forth that the City Council would makc rellSonable efforts to estimate restoration 4 5 6 7 costs nnd reach mutual agreement with plaintiff regarding funding rcstoration; requested a business plan of plaintiff; and expressed a desire to cooperate with plaintiff in the appolnlment of a Quality Assurance/Quality Control team. to oversee ski expansion activities. The party's Leasc 8 (Exhibit I) does not provide the City thc right to require that plaintiff engage in the aetivities 9 'requested by the resolution. Despite the First Affirmative Defense found in thc original Answer 10 filed with thc court by the City, the City's Answer to the Amended Complaint(s) removes the 11 12 13 14 15 allegation that the plaintiffwas required to engage in these discussions and activities, and testimony of the City's witnesses indicates tile acknowledgement ofthe City that it has no authority to reouire the plaintiff to respond favorably to the issues raised by the resolution. As a result of City's admission, there is no justiciable controversy presently as to plaintift's 16 17 allegations 24 C, E, F, and G. Paragraph 24D is slightly different in that it alleges that the lease 18 docs not afford City the right to reauest a business plan, and City has not conceded this issue. 19 20 21 22 23 On October 3, 2006, the City Council instructed City Administrator Martha Bennett to inform the USFS that, for expansion issues only. thc USFS was to direct all future contracts and permits to thc City rather than to the plaintift; in the City's role as special use permit holder (Exhibit 6). This letter has been referred to as the "change in practice" letter. Somc tcstimony at 24 trial indicated that the City's pwpose in issuing this letter was to simply guarantee that the City 2S 26 27 28 would remain in the communication loop about expansion issues. Taking the testimony as a whole, however, the court is convinced that the practical effect of the change in practicc letter was greater than to merely assure that USFS communicated with the City on expansion iqsues. The letter had !he additionaJ effect ofrcquiring the City's signature on any timber settlement OPINION :2 10/23/08 THU 13:07 [TX/RX NO 84261 V..... I '-V'-tKJU'IIIV,/ IV'VI va..........,;:)vl I VV\..olI 1....:1 VV...... 1..,;:) \1 I..IJ'\/v-t" I I IV IVVI I. V""'-",""^"V 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2S 26 27 28 contract, which, once executed, would in tum trigger numerous required activities toward completion of the expansion project. The issue ofthe appropriate signatory on the timber settlement contr4ct was occasionally discussed between the parties subsequent to the is..~uance of the change in practice letter. As late as May 31, 2007, representatives of the City, the plaintiff, and USFS met to create a road map before possiblc expansion activities, all of which Was "pending City decision for who will be the 'buyer'" (Exhibit 22, emphosis in original). The City's position on that issue became evident on June 29, 2007, when City Administrator Bennett sent a letter to USFS District Ranger Linda Duffy which implied that the City agreed that the plaintiff would be the appropriate purchaser of the timber settlement sale. but that the City would continue to be the entity working directly with the USFS until the issues raised in Resolution 2005-35 have been resolved to the City's satisfaction (Exhibit 10). This position Was reiterated in a separate letter sent by City Administrator Bennett to plaintiff, IIlso dated June 29, 2007 (Exhibit 1 I). The City's actions in submitting the change ofpraeLiee Jetter to the USFS and the fullow up June 2007 letters, taken together, are based upon a requirement that plaintiff meet eertllin conditions imposed by the City, namely satisfactory resolution of the issues raised in Resolution 2005-35. While the City desires satisfactory resolution of those conditions, Ihe lease does Dot afford the City the legal authority to impose them, nor to act as though the City had imposed them. These actions, taken together, resulted in interferenCe with plaintiff's ability to fulfill its obligations and rights under Section 6.1 of the Lease. The City IlI'gucs that many 'obstacles remain prior to a time when a timber settlement contract can be signed by anyone. That may well be the reality of the sitQ8tion and, if true, the City argues it has not breached the contraet because no possible harm could be sutTered by plaintiffby the City's actions. However, in declaring the rights of the parties, a past or present breach is not necessarily required. See ORS 28.030 and Gqffi.'Y v. Sabb, 50 Or App 617. 621 OPIN (ON 3 10/23/08 THU 13:07 [TX/RX NO 8428] .........., ........ ..................., "'....." ,~......, ..................................,. ............... ''''J ..............., ........ '\. . u.".....-... .,..... ,.........., 23 24 25 26 27 28 1 (1981). The plaintiffhas c;onvinced the c;ourt that it needs to be in a position to act at its first 2 3 4 appropriate opportunity to begin the expansion process. and that the lease entitles it to do so. 5 Thus, to afford the plaintiff the right to fulfill rights and obligations under the lease, the City must rescind the change of practice Ictter of October 3, 2006 and the follow up c;onfirmation 6 letter of June 29,2007. 7 Thc c;ourt finds that there is a justiciable c;ontroversy between thc parties in regards to 8 9 10 11 thcir actions under thc lease, lIS set forth in Brown v. Oregon Stale Bar, 293 Or 446, 449 (1981) and SIDle Farm Fire & Cas. v. Relller, 294 OR 446, 449 (I 983), and as exemplified by the cases 12 cited by plaintiff on the topic. City points out that the c;ourt may refuse to render a decllU'l1tory judgment where such judglTlent would not tenninatc the uncertainty or c;ontroversy giving rise to 13 14 15 the proc:eeding, citing ORS 28.060. City argues that the federal c;ourt injunction currently in placc, and the numerous future actions that might lUrther stall plaintiff's expansion herpes once 16 the injunction is lifted, should convince this c;ourt to invoke this statutory discretion. However, 17 18 while the c;ourt's actions may have no bearing on the exDansion cnntrovasv. it certainly will tcnninate the c;ontroversy between these parties as to their respective rights under the lease, and 19 that is the onIy real issuc before this court. 20 21, The City also asserts affiITllativc defenses. The court finds that plaintitfhas no adequate remedy at law on these issues, and that thc issues dctcnnined by the c;ourt IIlC ripe for 22 adjudication, and are not'moot, except where indicated in the Opinion. The court further confirms and reiterates its previous finding that USPS i$ not a necessary party in this litigation. Plaintitfis thus entitled to a decllllation of its rights underthc lease as sct forth and alleged in paragraphs 24 A. 24 B and 24 D of its Second Amended Complaint. 'Plaintlffis . further entitled to an injunction requiring City to rescind its October 3, 2006 and June 29,2007 OPINION 4 10/23/08 THU 13:07 [TX/RX NO 6426] 1 lctters to USFS, and requiring City, as Special Use Permit holder, to designatc plaintiff as the 2 3 appropriate signatory on any future timber scttlement contracts under the lease. DATED this .;23 day of October, 2008. 4 jr-( c-..A. -IZ-c. . ' MARK SCHlVELEY Circuit Court Judgc 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cc: Darrel R. Jarvis Jens Schmidt OPIN ION 5 10/23/08 THU 13:07 [TX/RX NO 6426] s~;itc'''- ::h I J-.r!" Ss TO: The Ashland City Council R~C~ {(92 IV~D 8 lOll FROM: Elizabeth Cross 760 Clay Street Ashland, OR 97520 DATE: February 28,2011 The Give a Kid a Lift fund is a worthwhile endeavor to help a faction of the youth in the valley to participate in skiing on Mount Ashland. As well as the Medford Ski Education Foundation enables their high school ski teams to complete in racing on the mountain's slopes. I appreciate that the Mt.Ashland resort is nearby to enjoy. But, the positive aspects of recreation should not override the necessity to protect the existing Ashland Watershed as it now stands. The future of Ashland's Watershed is dependent on good Watershed management which puts health and safety first. The trees in the proposed expansion area are a good measure of the quality of the environment. These treeshold the soil in place; thereby they help to protect the steep slopes from further erosion arid drainage into the Ashland water supply system. Furthermore, the oxygen conversions; the wildlife habitats; the wetlands at the mouth of the streams from which water flows into our reservoirs; and the visual appeal combine to define our unique watershed. The Mount Ashland Association is not willing to consider less drastic expansion.plans. Expansion will not in itself, gUarantee more skiers to the mountain; nor can natural disasters be predicted, and snow levels controlled. These are hard economic times whereby lenders are less likely to fund endeavors that have not always proved to be fmancially sound. In addition, fundraising is equally difficult when jobs and job securities are at risk. Please do not transfer the City of Ashland's Ski Area Permit to the Mount Ashland Ski Association. The $85,000 in legal fees and other charges are costs well spent to protect the future and the benefits of our watershed. It has been stated and written in scientific literature that the 21 ST Century, will place the value of clean water on a par with oil. I want to be assured that the City of Ashland will continue to recognize the important link between the health and the safety of our watershed to our water supply and drainage protection. Thank you for the courage, the loyalty, and the time to adequately monitor the Ashland Watershed. Sincerely, lf5~ ~ )..J'l-f SS S\.~",.",;'t.<L 1<0, \I S"kthri Homeless Ad Hoc Committee Concept Dennis Slattery This plan is to address the formulation of the citizens ad,hoc committee proposed to deal with the long term issues regarding homelessness in Ashland. There are two major concerns I have for proposing a different approach to the ad hoc committee format. 1. The current format under consideration is going to bring a limited number of people from many perspectives under the same committee. This stands to get mired down in the differences and solutions may not gain wide approval because it is sure to leave out stakeholders on one side or another. 2. We have an "unofficial" language that is calling one set of decisions short term and the other long term. We have moved to set up a long term ad hoc committee. While I think it proper to have the committee address long term I believe the committee should be charged with assisting council on the short term issues as well. My proposal is simple - instead of having one ad hoc committee we have a number of ad hoc committees. For example the Chamber/business community would seat a committee; the faith committee already has something going by way of a task force, we would use that as another ad hoc committee; I am certain there are homeless advocates that would be willing to form a committee; and I think someone respected in the homeless community could form a committee of the homeless. There are other groups that might want to form their own committee. The important part will lay in meeting the charge and the timelines. Each committee will be given the same set of tasks upon which to make their recommendations. The first might be to identify the top five issues as they relate to the issue of homelessness. The report from each committee would require solution suggestions with the problems identified. There would then be created a central committee tasked with taking the groups' input and making it ready for delivery to the council for possible action. If I had it entirely my way I would seat this committee with a 2 - 3 people from agencies that deal with these issues, Linda Ried and two councilors. I am willing to put the time in but of course, if adopted, a plan like this would need discussion on whom and how. There are details yet to be decided, of course, but I wanted to put the idea out for comment to see if there is merit in moving forward. The biggest advantage I see to doing it this way is to have as comprehensive representation as possible. The second advantage is that the issues are dealt with in groups where the various stakeholders feel free to discuss openly. The product of that discussion will be open and shared with all. The purpose of the review ad hoc committee is to review the various inputs for action plans or to match ideas up with services already present, etc. I think one of the important parts of this idea is that the various ad hoc committees will start with the nearest term issues and then work their way to long term issues. I think there is broad based agreement throughout the community that people from all sides of the issues wish to see improvement. Additionally I think everyone wants us to get it right, not rushed, and look to create solutions that are sustainable. If the Council concurs I will work with the City Administrator and Mayor to fill in the details of this plan and the Mayor will propose members for the ad hoc committee for Council confirmation at our AprilS meeting. The stakeholders identified below are examples only. Official stakeholder contact would come after council adoption of the final version of this plan. Chamber of SOU League of Women Commerce Add any number of stakeholders Central Ad Hoc Committee Committee consists of 2 councilors, 3 - 5 experts on homelessness, 1 staff person. 4 ~ Purpose is to take the recommendations of the stakeholder groups, combine the issues/solutions and either forward to the council for action, or return to the stakeholder group for further development. 4 . Homeless Advocate Homeless Representatives City of Ashland