2023-18 Wild trout Timber Sale Contract - sample clean.pdf

CLACKAMAS COUNTY

Timber Sale Contract

This Timber Sale Contract (this “Contract”) is entered into between [_____________] (“Purchaser” or “Contractor”), and Clackamas County, a political subdivisions of the State of Oregon (“County”), and is for the sale of approximately 1.748 million board feet (“MMBF”) of timber as part of the Wild Trout Timber Sale.

I. TERM

This Contract shall become effective upon issuance of a Notice-To-Proceed (“NTP”) and shall remain in effect until [insert timeframe]. Contractor shall complete the harvest of the timber described in Exhibit A (the “Timber”), attached hereto and incorporated by this reference herein, by [insert date].

II. SALE OF TIMBER

County hereby sells to Purchaser, and Purchaser buys from County, the Timber in accordance with the terms and conditions of this Contract including, but not limited to, the supplemental conditions set forth in Exhibit A.

The Federal Forest Resources Conservation and Shortage Relief Act of 1990 prohibits the export of unprocessed timber originating from County lands. Violations of said Act or of the Clackamas County Log Export Chapter may result in termination of this contract, assessment of damages, disqualification from bidding on or purchasing County timber for up to five years, or federal or state legal action. In any legal action brought by the County to enforce this provision of this contract, the County, if it prevails, shall be awarded its reasonable costs and attorney fees.

The sale of the Timber constitutes the sale of timber from “public lands,” as defined by ORS 526.801(5), and may not be exported. Purchaser must comply with the provisions of all applicable laws governing use of the Timber including, but not limited to, the Forest Resources Conservation Amendments Act of 1993, ORS Chapter 275, ORS 526.801-831, ORS 526.992, and Clackamas County Code Chapter 2.06.

The sale of the Timber is “as-is.” County makes no representations or warranty, express or implied, as to

(1) the quality of the Timber or its fitness for a particular use by Purchaser; or (2) the site condition of the Timber Harvest Area, as defined in Exhibit A, or any adjacent real property that may be needed to access the Timber Harvest Area. Purchaser is solely responsible for all risks associated with the harvest of the Timber from the Timber Harvest Area and any subsequent use or sale of the same.

III. COMPENSATION

1. PAYMENT. Purchaser shall pay County for the Timber in accordance with the prices set forth in Exhibit A. Purchaser shall make its first payment for the Timber in the amount of $__________ (20% of the bide price) immediately upon execution of this Contract.

2. TRAVEL EXPENSE REIMBURSEMENT. Authorized: Yes No

IV. CONTRACT PROVISIONS

1. ACCESS TO RECORDS. Contractor shall maintain books, records, documents, and other evidence and accounting procedures and practices sufficient to reflect properly all costs of whatever nature claimed to have been incurred and anticipated to be incurred in the performance of this Contract. County and their duly authorized representatives shall have access to the books, documents, papers, and records of Contractor which are directly pertinent to this Contract for the purpose of making audit, examination, excerpts, and transcripts. Such books and records shall be maintained by Contractor for a minimum of three (3) years, or such longer period as may be required by applicable law, following final payment and termination of this Contract, or until the conclusion of any audit, controversy or litigation arising out of or related to this Contract, whichever date is later.

2. CAPTIONS. The captions or headings in this Contract are for convenience only and in no way define, limit, or describe the scope or intent of any provisions of this Contract.

3. COMPLIANCE WITH APPLICABLE LAW. Contractor shall comply with all federal, state, county, and local laws, ordinances, and regulations applicable to the work to be done under this Contract. Contractor specifically agrees to comply with all applicable requirements of federal and state civil rights and rehabilitation statutes, rules, and regulations. Contractor shall also comply with the Americans with Disabilities Act of 1990 (Pub. L. No. 101-336), Title VI of the Civil Rights Act of 1964, Section V of the Rehabilitation Act of 1973, ORS 659A.142, and all regulations and administrative rules established pursuant to those laws. Contractor further agrees to make payments promptly when due, to all persons supplying to such Contractor, labor or materials for the prosecution of the work provided in this Contract; pay all contributions or amounts due the Industrial Accident Funds from such Contractor responsibilities incurred in the performance of this Contract; not permit any lien or claim to be filed or prosecuted against the County on account of any labor or material furnished; pay to the Department of Revenue all sums withheld from employees pursuant to ORS 316.167. If Contractor fails or refuses to make any such payments required herein, the appropriate County official may pay such claim. Any payment of a claim in the manner authorized in this section shall not relieve the Contractor or Contractor’s surety from obligation with respect to unpaid claims. Contractor shall promptly pay any person or entity that furnishes medical care to Contractor’s employees those sums which Contractor agreed to pay for such services and all money Contractor collected or deducted from employee’s wages to provide such services.

4. EXECUTION AND COUNTERPARTS. This Contract may be executed in several counterparts, each of which shall be an original, all of which shall constitute but one and the same instrument.

5. GOVERNING LAW. This Contract shall be governed and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law. Any claim, action, or suit between County and Contractor that arises out of or relates to the performance of this Contract shall be brought and conducted solely and exclusively within the Circuit Court for Clackamas County, for the State of Oregon. Provided, however, that if any such claim, action, or suit may be brought in a federal forum, it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon.

6. HAZARD COMMUNICATION. Contractor shall notify County prior to using products containing hazardous chemicals to which County employees may be exposed, which includes any hazardous, toxic, or dangerous substance, waste, or material that is the subject of environmental protection legal requirements or that becomes regulated under any applicable local, state or federal law, including but not limited to the items listed in the United States Department of Transportation Hazardous Materials Table (49 CFR §172.101) or designated as hazardous substances by Oregon Administrative Rules, Chapter 437, or the United States Environmental Protection Agency (40 CFR Part 302), and any amendments thereto. Upon County’s request, Contractor shall immediately provide Safety Data Sheets for the products subject to this provision.

7. ASSUMPTION OF RISK, INDEMNITY, RESPONSIBILITY FOR DAMAGES.

a. Release. Contractor hereby releases and discharges County from any and all claims, actions, lawsuits, costs, expenses, or damages of any kind, whether known or unknown, arising out of or related to this Contract.

b. Assumption of Risk. Contractor is aware that potentially dangerous conditions may exist with respect to harvesting the Timber, including within the Timber Harvest Area. Contractor has satisfied itself that the risk of harm from harvesting the Timber is acceptable, and hereby assumes those risks, whether or not specified herein, and understands County is not a guarantor of Contractor’s safety.

c. Indemnification/Responsibility for Damages. Contractor shall be responsible for all damage to property, injury to persons, and loss, expense, inconvenience, and delay which may be caused by, or result from, the conduct of work, or from any act, omission, or neglect of Contractor, its subcontractors, agents, or employees. The Contractor agrees to indemnify and defend the County, and its officers, elected officials, agents, and employees, from and against all claims, actions, losses, liabilities, including reasonable attorney and accounting fees, and all expenses incidental to the investigation and defense thereof, arising out of or based upon Contractor’s acts or omissions in performing under this Contract.

However, neither Contractor nor any attorney engaged by Contractor shall defend the claim in the name of County, purport to act as legal representative of County, or settle any claim on behalf of County, without the approval of the Clackamas County Counsel’s Office.

County may assume its own defense and settlement at its election and expense.

8. INDEPENDENT CONTRACTOR STATUS. The service(s) to be rendered under this Contract are those of an independent contractor. Although the County reserves the right to determine (and modify) the delivery schedule for the Work to be performed and to evaluate the quality of the completed performance, County cannot and will not control the means or manner of Contractor’s performance. Contractor is responsible for determining the appropriate means and manner of performing the work. Contractor is not to be considered an agent or employee of County for any purpose, including, but not limited to: (A) The Contractor will be solely responsible for payment of any Federal or State taxes required as a result of this Contract; (B) This Contract is not intended to entitle the Contractor to any benefits generally granted to the County employees, including, but not limited to, vacation, holiday and sick leave, other leaves with pay, tenure, medical and dental coverage, life and disability insurance, overtime, Social Security, Workers' Compensation, unemployment compensation, or retirement; and (C) If the Contractor has the assistance of other persons in the performance of this Contract, and the Contractor is a subject employer, the Contractor shall qualify and remain qualified for the term of this Contract as an insured employer under ORS Chapter 656.

9. INSURANCE. Contractor shall secure at its own expense and keep in effect during the term of the performance under this Contract the insurance required and minimum coverage indicated below. The insurance requirement outlined below do not in any way limit the amount of scope of liability of Contractor under this Contract. Contractor shall provide proof of said insurance and name the County as an additional insured on all required liability policies. Proof of insurance and notice of any material change should be submitted to the following address: Clackamas County Procurement Division, 2051 Kaen Road, Oregon City, OR 97045 or procurement@clackamas.us.

Required - Workers Compensation: Contractor shall comply with the statutory workers’ compensation requirements in ORS 656.017, unless exempt under ORS 656.027 or 656.126.

Required – Commercial General Liability: combined single limit, or the equivalent, of not less than $1,000,000 per occurrence, with an annual aggregate limit of $2,000,000 for Bodily Injury and Property Damage.

Required – Professional Liability: combined single limit, or the equivalent, of not less than $1,000,000 per claim, with an annual aggregate limit of $2,000,000 for damages caused by error, omission or negligent acts.

Required – Automobile Liability: combined single limit, or the equivalent, of not less than $1,000,000 per accident for Bodily Injury and Property Damage.

The policies shall be primary insurance as respects to the County. Any insurance or self-insurance maintained by the County shall be excess and shall not contribute to it. Any obligation that County agree to a waiver of subrogation is hereby stricken.

10. LIMITATION OF LIABILITIES. This Contract is expressly subject to the debt limitation of Oregon counties set forth in Article XI, Section 10, of the Oregon Constitution, and is contingent upon funds being appropriated therefore. Any provisions herein which would conflict with law are deemed inoperative to that extent. Neither party shall be liable for (i) any indirect, incidental, consequential or special damages under this Contract or (ii) any damages of any sort arising solely from the termination of this Contact in accordance with its terms.

11. NOTICES. Except as otherwise expressly provided in this Contract, any communications between the parties hereto or notices to be given hereunder shall be given in writing by personal delivery, facsimile, or mailing the same, postage prepaid, to Contractor or County at the address or number set forth on the signature page of this Contract, or to such other addresses or numbers as either party may hereafter indicate. Any communication or notice so addressed and mailed shall be deemed to be given five (5) days after mailing. Any such communication or notice delivered by facsimile shall be deemed to be given when receipt of transmission is generated by the transmitting machine. To be effective against County, such facsimile transmission must be confirmed by telephone notice to County’s supervising representative. Any communication or notice by personal delivery shall be deemed to be given when actually delivered.

12. REPRESENTATIONS AND WARRANTIES. Contractor represents and warrants to County that (1) Contractor has the power and authority to enter into and perform this Contract; (2) this Contract, when executed and delivered, shall be a valid and binding obligation of Contractor enforceable in accordance with its terms; (3) the harvest of the Timber under this Contract shall be performed in a good and workmanlike manner and in accordance with the highest professional standards; and (4) Contractor shall at all times during the term of this Contract, be qualified, professionally competent, and duly licensed to harvest the Timber. The warranties set forth in this section are in addition to, and not in lieu of, any other warranties provided.

13. SURVIVAL. All rights and obligations shall cease upon termination or expiration of this

Contract, except for the rights and obligations set forth in Article IV, Sections 1, 6, 8, 11, 13, 14, 15, and 21.

14. SEVERABILITY. If any term or provision of this Contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Contract did not contain the particular term or provision held to be invalid.

15. SUBCONTRACTS AND ASSIGNMENTS. Contractor shall not enter into any subcontracts for any of the work required by this Contract, or assign or transfer any of its interest in this Contract by operation of law or otherwise, without obtaining prior written approval from the County. In addition to any provisions the County may require, Contractor shall include in any permitted subcontract under this Contract a requirement that the subcontractor be bound by this section and Article IV, Sections 1, 8, 13, 15, and 27 as if the subcontractor were the Contractor. County’s consent to any subcontract shall not relieve Contractor of any of its duties or obligations under this Contract.

16. SUCCESSORS IN INTEREST. The provisions of this Contract shall be binding upon and shall inure to the benefit of the parties hereto, and their respective authorized successors and assigns.

17. TAX COMPLIANCE CERTIFICATION. Contractor shall comply with all federal, state and local laws, regulation, executive orders and ordinances applicable to this Contract. Contractor represents and warrants that it has complied, and will continue to comply throughout the duration of this Contract and any extensions, with all tax laws of this state or any political subdivision of this state, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318. Any violation of this section shall constitute a material breach of this Contract and shall entitle County to terminate this Contract, to pursue and recover any and all damages that arise from the breach and the termination of this Contract, and to pursue any or all of the remedies available under this Contract or applicable law.

18. TERMINATION. This Contract may be terminated for the following reasons: (A) by mutual agreement of the parties or by the County (i) for convenience upon thirty (30) days written notice to Contractor, or (ii) at any time the County fails to receive funding, appropriations, or other expenditure authority as solely determined by the County; or (B) if Contractor breaches any Contract provision or is declared insolvent, County may terminate after thirty (30) days written notice with an opportunity to cure.

Upon receipt of written notice of termination from the County, Contractor shall immediately stop harvest of the Timber, remove all of Contractor’s property from County property, including the Timber Harvest Area, and restore the County’s property in accordance with Exhibit A.

19. REMEDIES. If terminated by the County due to a breach by the Contractor, then the County shall have any remedy available to it at law, in equity, or under this Contract.

20. NO THIRD PARTY BENEFICIARIES. County and Contractor are the only parties to this Contract and are the only parties entitled to enforce its terms. Nothing in this Contract gives, is intended to give, or shall be construed to give or provide any benefit or right, whether directly, indirectly or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Contract.

21. TIME IS OF THE ESSENCE. Contractor agrees that time is of the essence under this Contract.

22. FOREIGN CONTRACTOR. If the Contractor is not domiciled in or registered to do business in the State of Oregon, Contractor shall promptly provide to the Oregon Department of Revenue and the Secretary of State, Corporate Division, all information required by those agencies relative to this Contract. The Contractor shall demonstrate its legal capacity to perform these services in the State of Oregon prior to entering into this Contract.

23. FORCE MAJEURE. Neither County nor Contractor shall be held responsible for delay or default caused by fire, terrorism, riot, acts of God, or war where such cause was beyond, respectively, County’s or Contractor’s reasonable control. Contractor shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall upon the cessation of the cause, diligently pursue performance of its obligations under this Contract.

24. WAIVER. The failure of County to enforce any provision of this Contract shall not constitute a waiver by County of that or any other provision.

25. NO ATTORNEY FEES. Except for a violation of the timber export prohibitions set forth in Article II, above, in the event any arbitration, action or proceeding, including any bankruptcy proceeding, is instituted to enforce any term of this Contract, each party shall be responsible for its own attorneys’ fees and expenses.

26. PUBLIC CONTRACTING REQUIREMENTS. To the extent the provisions of ORS Chapter

279B are applicable, Contractor shall:

a. Make payments promptly, as due, to all persons supplying to Contractor labor or materials for the prosecution of the work provided for in the Contract.

b. Pay all contributions or amounts due the Industrial Accident Fund from such Contractor or subcontractor incurred in the performance of the Contract.

c. Not permit any lien or claim to be filed or prosecuted against County on account of any labor or material furnished.

d. Pay the Department of Revenue all sums withheld from employees pursuant to ORS

316.167.

e. As applicable, the Contractor shall pay employees for work in accordance with ORS

279B.235, which is incorporated herein by this reference. The Contractor shall comply with the prohibitions set forth in ORS 652.220, compliance of which is a material element of this Contract, and failure to comply is a breach entitling County to terminate this Contract for cause.

f. If the Work involves lawn and landscape maintenance, Contractor shall salvage, recycle, compost, or mulch yard waste material at an approved site, if feasible and cost effective.

27. MERGER. THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT

BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER

REFERENCED THEREIN. THERE ARE NO UNDERSTANDINGS, AGREEMENTS,

OR REPRESENTATIONS, ORAL OR WRITTEN, NOT SPECIFIED HEREIN

REGARDING THIS CONTRACT. NO AMENDMENT, CONSENT, OR WAIVER OF

TERMS OF THIS CONTRACT SHALL BIND EITHER PARTY UNLESS IN WRITING

AND SIGNED BY ALL PARTIES. ANY SUCH AMENDMENT, CONSENT, OR

WAIVER SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR

THE SPECIFIC PURPOSE GIVEN. CONTRACTOR, BY THE SIGNATURE HERETO

OF ITS AUTHORIZED REPRESENTATIVE, ACKNOWLEDGES HAVING READ AND

UNDERSTOOD THIS CONTRACT AND CONTRACTOR AGREES TO BE BOUND BY

ITS TERMS AND CONDITIONS.

By their signatures below, the parties to this Contract agree to the terms, conditions, and content expressed herein.

[insert]

Authorized Signature Date

Name / Title (Printed)

Oregon Business Registry #

Entity Type / State of Formation

Clackamas County

Chair Date

Recording Secretary

Approved as to Form:

County Counsel Date

Exhibit A Contract Special Conditions

Performance Bond