Free Response to Motion - District Court of Federal Claims - federal

Case 1:98-cv-00720-GWM

Document 332-6

Filed 04/28/2005

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BRN
United States Depm'tment of Agricnlture Forest Service I(aibab Natioual Forest 800 S. 6th Street \Villiams, AZ 86046 520/635-8200

File Code: 2,t50 Date: May 16, 1997

MR LORIN D POI[TER PRECISION PINE & TIMBER INC P0 BOX 70 }IEBER AZ 85928

Dear Mr. Porter: t am in receipt of a request from Purchaser Representative John Smith for a One 3'ear Contract Term Extension for the Brann Timber Sale, Contract No. 006577, under the "Substantial Overriding Public Interest Extension" authority granted by the Chief in a letter dated July 3L 1996. The Brann sale does qualify for the requested One year cxtcnsiou. The revised termination date for the Brann Timber Sale (previously modified to August 13, 1997)wilt now be August 13, 1998. The revised termination da,te for the contract triggers a change in the dates of the ;:Initial" and ':Additional" payments contained in CT4.264#- Periodic Payment Schedule (10/91). Since you have already met the require~ payment amount for the initial paymcm (as a result of volume removed and paid for) I bare adjusted the due date for ONLY Additional Payment. The the revised due date for the Additional payment is now MARCH 1998. 15, Enclosed is an FS-2400-9 Agreement to Mod.f) Contract which contains the revised clause CT4.26:1~- Periodic PaymentSchedule and includes a revised Page 1 of the contract to reflect the rerised termination date. I have also enclosed the Release pf Liability Statement for the Brann sale which must be signed by you as a condition of granting the extension. The copy previously ~igned by Purchaser Representative John Smith is not valid as it must be signed by Ihe W.':son who entered into the contract originally or by their successor.

Case 1:98-cv-00720-GWM

Document 332-6

Filed 04/28/2005

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Mr. I,mqn D. Porter Pleuse sign and return the '2,101)-9 and the Release from Liabilikv Stalemcnt to this omccat your earliest convenienceand I will expedite e_,gecution from this end. As always, pleasefell free to contact me, if you have any questions. Sinccrely~

"~2

DAVID IIAI~!].IS P. Contracting Ol~cer

aohu Smith PO Drawer W Wi~slow, AZ 86047 ,John llohnes, "~yi~liams/ghalender

Case 1:98-cv-00720-GWM

Document 332-6

Filed 04/28/2005

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downpayment amount listed in CT4.220#. The funds released may be refunded or transferred to other sales. If the dog, payment was being covered by Effective Purchaser Credit, the credit may be released. Upon receipt of written notification by the Contracting Officer that operations may resume, Purchaser shall have 30 calendar days excluding the day notice is received to return the downpayment to the full amount. Harvesting operations on the contract shall not be allowed until the do%.rnpay~ent amount is restored to the full ~Dunt. Failure to provide the full dow~payment amount will be considered a material breach of contract. Purchaser will have 30"calendar days to remedy the breach or the contract shall terminate. Forest Service will charge Purchaser interest at the rate prescribed in CT4.41, on the amount Purchaser is required to return, if it is not received by the Forest Service by the prescribed date.

WO-CT4.224 CT4.224 - Deposit When Payment Guaranteed. (6/87) To the extent payment guarantee is provided under BT4.3, requirements for advance cash deposits under BT4.221 or .CT4.221, shall be waived for the value of timber on Sale Area ~hich has been Released for Cutting but not removed, and for the estimated value-~of species and products removed from Sale Area for ~ot more than a monthly billing period {ubject to the provisions of CT4.4. i

WO-CT4.23 CT4.2~-:Refund of Excess Cash. (7/91) If at any time the credit balance

Timber Sale Account exceeds the charges for timber within Payment Units Released for Cutting and for designated material not included in AT2 expected to be cut within the next 60 calendar days, any portion of such excess that is due to cash in the account shall be refunded if requested by Purchaser unless deposited under CT4.220# - Dow~payment, CT4.254 - Extension Deposits, or CT4.264# - Periodic Payment Schedule. If no cutting is planned within the next 60 calendar days, refund of the entire %u~encumbered cash balance, except as provided above, may be made. However, said credit balance shall not be reduced below the total value of partially cut Payment Units and designated material not included in AT2 which is cut before operations cease. After a refund for a shutdown, deposits shall be made to meet the requirements of CT4.221 - Advance D~posits, before additional timber may be cut.

WO-CT4.26~# CT4.264~ payments - Periodic Payment for stumpage value Schedule. as follows: Purchaser Periodic Payment Determination Date March 15, 1996 $109,200.00 MARCH 15, 1998 shall make periodic

Amount Initial Additional

Case 1:98-cv-00720-GWM

Document 332-6

Filed 04/28/2005

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~elease from Liability Statement Appendix _I_ to Contract ~;o. 006577 .The execution of the contract extension modification is contingent upon the execution of this release statement by the Purchaser and the United States. The terTns and conditions of this agreement are fully incorporated into contract no. _0~6577__ and supersede any conflicting provisions in the contract (e.g., C(CT) 9.5). In consideration for the Government's modification of this co~tract, no. _006577__, by changing the termination date in~ - Tez~mination Date and periodic payment determination date(s) in ~ Pe riodic Pa ~ent ~chedul~, Purchaser agrees to limit the contractual liability of the Government, as set forth below. Purchaser, Precision Pine & Timber~ Inc. hereby releases the Government from any and all liability arising from the suspension, modification, or cancellation (in whole or in part) of contract no. _006577__ in order protect sensitive, threatened, or endangered species, or for other environmental reasons. ~n the event the United states is com_D~lled to suspend, modify, or cancel (in whole or in part) contract no. 006577 for environmental reasons, Purchaser, Precision Pine a Timber, Inc. , and United States agree that the compensation to the Purchaser shall be limited to the following: I. In the event.of suspension, a contract term adjustment out-of-pocket expenses in accordance with the contract. 2. In the event of a modification, a rate redeterTnination cut-of-pocket expenses in accordance with the contract. and

and

3. In the event of a cancellation (in whole or in part), out-of-pocket expenses; value of unused P~rchaser Credit; and estimated expenditures for felling, bucking, lopping,-skidding, and decking any products so processed, but not removed from Sale ~ea because of termination action. Compensation does ~OT include the cost of replacement tin%bet. Out-of-pocket expenses do not include attorney's fees, lost profits, replacement timber, or any other anticipatory losses by the Purchaser. The undersigned agree to the terms and conditions of the Release from Liability Statement as set forth above and a~ree that the above.terms supersede any other compensationand/or liability provisions in this contract. UNITEDSTATES: PURCH~.SER:

Signature Contracting

Date Officer

signature Title

Date

TWO WITNESSES: Signature Signature

Name

Name