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HomeMy WebLinkAbout2007-261 Agrmt (DRAFT) - Mt. Ashland DRAFT ASSET PURCHASE AND SALE AGREEMENT THIS ASSET PURCHASE AND SALE AGREEMENT ("Agreemenf'), is made as of December __' 2006 ("Execution Date"), by and between the City of Ashland, a municipal corporation of the State of Oregon ("Seller") and the Mt. Ashland Association, an Oregon not- for-profit corporation ("Buyer"). RECIT ALS A. Seller is holder of a certain Ski Area Term Special Use Permit, together with amendments thereto ("Permit"), a copy of which is attached hereto as Exhibit A, wherein Seller is authorized to usc National Forest lands for the purpose of operating and maintaining a winter sports resort and othcr ancillary facilities, described therein, known as the Mt. Ashland Ski Area (the "Ski Area"). B. On or about [date] Scller and Buyer entcred into a certain Mt. Ashland Ski Area Lease (the "Lease"), a copy of which is attached hereto as Exhibit B, whereby Seller leases to Buyer the Ski Area, facilities, improvements and all personal property owned by Seller that is attached to or located on or about the Ski Area (the "Leased Property" as that tenn is defined therein). C. Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, the Leased Property, as more specifically provided herein, subject to the terms and conditions of this Agreement. D. Seller also desires to transfer and convey to Buyer and Buyer desires to assume from Seller all of Seller's right, title and interest in and to the Permit. C. Buyer has further agreed to participate in an Erosion Control Plan in the manner described in this Agreement to assess and restore surface soils located within the area described on Exhibit C attached hereto (the "Special Use Permit Area"). AGREEMENT FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby acknowledged, Seller and Buyer hereby agree as follows: ARTICLE 1 PURCHASE AND SALE 1.1 Purchase and Sale. Subject to the terms and conditions of this Agreement, Seller agrees to sell, assign, convey, and transfer to Buyer, and Buyer agrees to purchase, accept and take title to, the Leased Property for the consideration specified in Section 1.4. Except as may be otherwise provided for in this Agreement, all conveyances and transfers of the Leased Property shall be on an "AS-IS - WHERE-IS" condition and basis, free of all liens, claims and encumbrances except as expressly agreed to in writing by the parties. ASSET PURCHASE AND SALE AGREEMENT - 1 12843557_1.DOC DRAFT 1.2 IAssumed Liabilities. Subject to the terms and conditions of this Agreement, in connection with the purchase of the Leased Property, Buyer shall assume and perform, pay and discharge those specific liabilities set forth on Exhibit D attached hereto (the "Assumed Liabilities").] 1.3 Excluded Liabilities. [Except as specifically assumed by Buyer pursuant to Section 1.2,] Buyer expressly shall not assume any other liabilities or obligations of Seller, including without limitation any taxes or debt obligations owed by Seller. 1.4 Purchase Price and Payments. Buyer shall pay the following: The purchase price for the Leased Property shall be $____00 (the "Purchase Price"), $___.00 of which shall be payable to Seller in immediately available funds upon execution of this Agreement. ARTICLE 2 REPRESENT A nONS AND WARRANTIES 2.1 Representations and Warranties of Seller. Seller hereby represents and warrants to Buyer as follows: (a) Seller has full authority to execute, deliver and perform this Agreement. (b) Seller has good and marketable title to the Leased Property. Seller warrants that as of the Effective Date, the Leased Property shall be free and clear of any claims, liens, and encumbrances of any nature. (c) Except for the Assumed Liabilities, Seller has not incurred any outstanding obligation, debt or liability, fixed or contingent, in relation to the Leased Property that will not be satisfied in full prior to or on the Closing Date. (d) Prior to the Closing Date, Seller shall have paid any and all taxes, and filed any and all tax returns required to be filed by it prior to the Closing Date in relation to the Leased Property, including but not limited to sales tax, federal and state income tax and withholding tax. To the extent that taxes on the Leased Property are due after the Closing Date for any of the time period preceding the Closing Date, Seller shall remain solely liable for such taxes and shall pay them on or before the dates mandated by the Internal Revenue Service and/or any state or local taxing authority. ( e) There is no suit, action, arbitration or similar proceeding pending or threatened against Seller in relation to the Leased Property. (f) Seller has not engaged any third persons to act as its broker in relation to the negotiations and consummation of this Agreement. ASSET PURCHASE AND SALE AGREEMENT - 2 12843557 JDOC DRAFT (g) No representation or warranty by Seller in this Agreement, or any statement or certificate furnished to Buyer pursuant hereto or in connection with the transactions contemplated hereby, contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary to make the statements contained therein not misleading. 2.2 Representations and Warranties of Buyer. Buyer hereby represents and warrants to Seller as follows: (a) Buyer has full authority to execute, deliver and perfonn this Agreement. (b) Buyer has not engaged any third persons to act as its broker in relation to the negotiations and consummation of this Agreement. (c) There is no suit, action, arbitration, or similar proceeding pending, or threatened against Buyer which seeks to restrain or enjoin Buyer's purchase of the Leased Property or would otherwise prohibit Buyer from consummating the transaction contemplated by this Agreement. ARTICLE 3 CLOSING DATE AND DELIVERIES A T CLOSING 3.1 Closinl! Date. The transaction contemplated by this Agreement shall be effective upon execution. The closing shall take place at the offices of at a time to be mutually agreed upon by the parties (the "Closing Dale"). 3.2 Deliveries. (a) Prior to or on the Closing Date, Seller shall deliver the following: (i) Bill of Sale; and (ii) Assignment and Assumption Agreement. (b) Prior to or on the Closing Date, Buyer shall deliver the following: (i) The Purchase Price; and (ii) Assignment and Assumption Agreement. ( c) Each party shall at any time after the Closing Date execute and deliver to the other party all such additional instruments of conveyance and assignment, certificates or documents as such other party may reasonably request in order to further perfect the intent of this Agreement. ASSET PURCHASE AND SALE AGREEMENT - 3 12843557_LDOC DRAFT ARTICLE 4 TRANSFER AND SALES TAXES Any sales or transfer taxes payable by reason of the sale of the Leased Property under this Agreement shall be paid equally by Buyer and Seller. Article 5 Indemnifications 5.] Indemnification bv Seller. From and after the Closing Date, Seller shall indemnify and hold Buyer harmless from and against any and all damages, losses, liabilities, actions, claims or expenses, including reasonable attorneys' fees and expenses, resulting from (a) any breach of a representation, warranty or covenant made by Seller hereunder, (b) any liability (including taxes) arising out of or in connection with or related to any of the Leased Property other than the Assumed Liabilities, (c) any taxes imposed on Buyer that are Seller's obligations, and (d) noncompliance by Seller prior to the Closing Date with any law applicable to the Ski Area and/or Leased Property. 5.2 Indemnification bv Buver. horn and after the Closing Date, Buyer shall indemnify and hold Seller harmless from and against any and all damages, losses, liabilities, actions, claims or expenses, including reasonable attorneys' fees and expenses, resulting from (a) any breach of a representation, warranty or covenant made by Buyer hereunder, (b) any liability (including taxes) arising out of or in connection with or related to any of the Leased Property, (c) any taxes imposed on Seller that are Buyer's obligations, and (d) noncompliance by Buyer prior to the Closing Date with any law applicable to the Ski Area and/or Leased Property. ARTICLE 6 TRANSFER AND ASSUMPTION OF PERMIT 6.] Transfer. [In consideration of the sum of $ .00 and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Seller,] Seller hereby agrees to transfer and convey to Buyer all right, title, interest and claim that Seller may have in and to the Permit. Seller hereby agrees to cooperate with Buyer in causing the aforementioned Permit to be formally transferred and/or conveyed to Buyer pursuant Section VII(C) of the Permit, and/or as may be required by the rules of the United States Department of Agriculture ("USDA") Forest Service. 6.2 Assumption. Buyer hereby accepts the transfer of the Permit and from and after the date of the acceptance and approval of the transfer by the USDA Forest Service (the "Effective Date") assumes and becomes responsible for and agrees to perform, discharge, fulfill and observe all of the obligations, covenants and conditions with respect to the Permit that accrue from and after the Effective Date and which benefit or pertain to the Special Use Permit Area. 6.3 Release. Buyer shall hold harmless, indemnify and defend Seller from and against any and all liabilities, obligations and claims arising under or in connection with the Permit relating to the period from and after the Effective Date. Seller shall hold harmless, ASSET PURCHASE AND SALE AGREEMENT - 4 12843557_1.DOC DRAFT indemnify and defend Buyer from and against any and all liabilities, obligations and claims arising under or in connection with the Permit relating to the period prior to the Effective Date. ARTICLE 7 EROStON CONTROL PLAN 7.1 Erosion Control Plan. Within [sixty (60)] days of the Effective Date, Seller and Buyer shall each appoint a [licensed or qualified] restoration specialist and the two thus selected shall select a third [licensed or qualified] restoration specialist (the "Restoration Team") who shall be responsible for developing a surface soil monitoring, maintenance and restoration plan (the "Erosion Control Plan"). 7.2 Costs and Expenses. The costs and expenses of the [licensed or qualified] restoration specialist selected by Seller or Buyer shall be borne by that party respectively. The cost of the third [licensed or qualified] restoration specialist shall be borne by _____ [the parties equally, Buyer or Seller]. 7.3 Goals and Obiectives. No latcr than 1180 days] after the Effective Date, the Restoration Team shall complete development of the Erosion Control Plan. The Erosion Control Plan will address monitoring of surface soils within the Special Use Permit Area and establish reasonable erosion control objectives. The framework for the Erosion Control Plan shall be based on the adaptive management model described in the Sediment Source Control Handhook attached hereto as Exhibit F. 7.4 Service. Approval. The Erosion Control plan must be approved by the USDA Forest 7.5 Term. The Erosion Control Plan will include a process for trend monitoring (erosion rate and other significant changes) and documentation at one-year intervals for a period of _ U years. Results of the monitoring will be reported in an annual report produced by the Restoration Team. 7.6 Baseline Monitorine. The Erosion Control Plan will use the [identify baseline information] as a baseline. In the event the Restoration Team determines that erosion rates are elevated over the baseline as a result of Buyer's activities in the Special Use Permit Area, the Restoration Team shall recommend mitigation measures, which shall include implementation and effectiveness monitoring (the "Statement of Work"). Buyer shall not be responsible to implement mitigation measures for, or be considered in default under this Agreement because of any unforeseeable cause beyond the control and without the negligence of Buyer, including, but not limited to acts of God, fire or explosion, flood, earthquake, volcanic activity, or unusually severe wind, drought or other acts of the elements. In preparing any Statement of Work, the Restoration Team shall evaluate reasonable mitigation alternatives and include an evaluation of the costs and benefits of various mitigation options. The Restoration Team shall submit the Statement of Work to USDA Forest Service for review and approval. Buyer shall be responsible for the cost of implementing the strategies set forth in the Statement of Work. Any contractors selected by Buyer to perform the Statement of Work shall be approved by USDA Forest Service in advance of initiating the work. ASSET PURCHASE AND SALE AGREEMENT - 5 \2843557 JDOC DRAFT 7.7 Provision of Financial Instrument. Buyer's obligations under this Agreement shall be secured by an "evergreen" letter of credit fyom an A-rated financial institution in the amount of $____ This amount will provide financial assurance for the success of the Erosion Control Plan. ARTICLE 8 MISCELLANEOUS 8.1 Entire Al!reement. The parties agree that this Agreement constitutes their entire agreement concerning the subject matter hereof and supersedes any and all written and/or oral prior agreements, negotiations, correspondence, understandings and communications. 8.2 Severability. If anyone or more of the provisions of this Agreement shall be held invalid or unenforceable, the validity and enforceability of all other provisions of this Agreement shall not be affected. 8.3 Assil!nment. Except as otherwise expressly provided herein, the rights and obligations of the parties pursuant to this Agreement may not be assigned without the express written consent of the other party. 8.4 Costs of Transaction. All costs or liabilities incurred by any party in connection with this Agreement, including but not limited to attorneys' fees, shall be borne by the party incurring such costs. 8.5 Attorney's Fees. In any action at law or in equity to enforce any of the provisions or rights under this Agreement, the prevailing party shall be entitled to all costs, expenses and reasonable attorneys' fees incurred by the prevailing party, including, without limitation, such costs, expenses and fees on any appeals. 8.6 Bindinl! Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their heirs, personal representatives, successors and assigns. 8.7 Captions. The captions and headings in this Agreement are for convenience only and are not to be used to interpret, defme or limit the provisions hereof. 8.8 Multiple Counterparts. counterparts each of which shall be an instrument. This Agreement may be executed in multiple original part, but all of which shall constitute one 8.9 Governinl! Law. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Oregon. [SIGNA TURES APPEAR ON THE FOLLOWING PAGE] ASSET PURCHASE AND SALE AGREEMENT - 6 12843557JDOC DRAFT IN WITNESS WHEREOF, Seller and Buyer have each executed this Assignment as of the date first above written. CITY OF ASHLAND, a municipal corporation of the State of Oregon By:____ Name: Its: MT. ASHLAND ASSOCIATION, an Oregon not-far-profit corporation By:__~___ Name: Its. ASSET PURCHASE AND SALE AGREEMENT - 7 12843557_I.DOC DRAFT Exhibit A SKI AREA TERM SPECIAL USE PERMIT Assignment%20and%20Assumption%20of%20Permit[l] DRAFT Exhibit B MT. ASHLAND SKI AREA LEASE Assignment%20and%20A5sumption%20of'''Io20Pennit[ 1] DRAFT Exhibit C LEGAL DESCRIPTION OF SPECIAL USE PERMIT AREA Assignment%20and%20Assumption%20of%20Pennit[ J] DRAFT Assignment%20and%20Assumption%20of%20Permit[ I} Exhibit D ASSUMED )JABILITIES DRAFT Assignment%20and%20Assumption%20of'/o20Permit{ I] Exhibit E PROMISSORY NOTE DRAFT Exhibit F SJ;<:DIMENT SOURCE CONTROL HANDBOOK AssignmenfI/o20and%20Asswnption%20of%20Pennit[ I}