HomeMy WebLinkAbout2007-261 Agrmt (DRAFT) - Mt. Ashland
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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.
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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.
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(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.
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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,
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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.
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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]
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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.
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Exhibit A
SKI AREA TERM SPECIAL USE PERMIT
Assignment%20and%20Assumption%20of%20Permit[l]
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Exhibit B
MT. ASHLAND SKI AREA LEASE
Assignment%20and%20A5sumption%20of'''Io20Pennit[ 1]
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Exhibit C
LEGAL DESCRIPTION OF SPECIAL USE PERMIT AREA
Assignment%20and%20Assumption%20of%20Pennit[ J]
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Assignment%20and%20Assumption%20of%20Permit[ I}
Exhibit D
ASSUMED )JABILITIES
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Assignment%20and%20Assumption%20of'/o20Permit{ I]
Exhibit E
PROMISSORY NOTE
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Exhibit F
SJ;<:DIMENT SOURCE CONTROL HANDBOOK
AssignmenfI/o20and%20Asswnption%20of%20Pennit[ I}