Free Motion for Partial Summary Judgment - District Court of Federal Claims - federal

Case 1:87-cv-00435-EGB

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CULVERTS
i EST;MATE'D COST

DRAINAGE ACCESSORIES

AND

SPAN

i AI

Fa

NSTALL

IN

..... ~ NL,

~1 ~E

None

A13 - Scaling instructions

and Speci~icatians~ applicable to B6.8 Instractions: FSM 2443.7

Name and Date of Governing

- Thicd Party Scaling, (and R-6

Supplement to FSH 2409.11 for West Side Log Scaling

through September 1978)

SCALING SPECIFICATIONS

LENGTH RANGE

All species

logs

40

6+

8-40

12 + 2 for each I0' over 40'

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Repl To: 24~0 Y Date= DEC19 1985
Gateway Lumber Company 1206 North Shore Drive Camano Islande WAo 98292 Re= Eldred Creek Timber Sale Contract No, 062090 --

a partlclpon¢ .in the ~Slde class ~¢[on sul¢~ ~e should have glven th~s c~ntrac¢ a conditional extension to keep Che contract In forc~ until t~e suit ~as sealed, Therefore~ Chis conCr~t Is hereby conditionally e~ended from l¢s p~esent termination date until dissolved, ~ felling or re~val of ¢l~er Is under~ondl~lona! ~tenslon. This condltlonal exCenslon Augus~ 18~ 1985, You sh~be advised Cha¢ Che. ~h Side tn~unc¢lo~as dissolved o~ ~ve~er and

Please con¢~¢ this office forms,

or the Darrlngfon Ranger DlsfPl¢f

for ]nfor~e¢lon

~ntracf lng Officer

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United States Department of Agriculture

Forest Service

Mr, Baker-Snoqualmle National Forest

1022 First Avenue Seattle, WA 98104

Reply To= 2430 Date= Aprll |8, 19~6 Oateuay Lumber Company 1206 North Shore Drive OamanoIsland~ WA, 98292 Gentlemen= This Is to ~v|se you that the North Side InJunctlo~ dissolved Novembe~ 29, 1985, Your Eldf'ed Creek Timber Sale, Contract No. 062090, awarded November 1979 was under a conditional extension that e×plrad when you failed to file Multi-Sale Extension Plan by December 29= 196~. Since this sale was not completed before defaulted sale, It explredw I consider It to be a

I do not plan to resell the sale. ThQrefore, d~ages will be based on an appraisal pursuant to B904, as of August 17~ 196~. When I have completed my determination of damages~ you ulll be notlfledo copy of thts S Incerel y, letter Is being .sent to your surety,

BRUCEA'T'F
BRUCE MATEER Contracting Officer c¢= Darrlngton RD Company

St. Paul Fire & Marine Insurance 1800 Park Place Seattle, ~A, 9810!

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United States Department of Agriculture

Forest Service

~ RO

2430 Resaleof Defaulted Contract, GatewayLumberCompany, #062090 (Your]tr.3/14) ForestSupervisor, Baker-Snoqualmie Mr. NF

Aprilg, 1986

Enclosed. a copy of the Regional is Attorney's advlce.After verification of the company's statusyou may proceed~o advisethe purchaser that the sale wl]] not be resold,and that therefore damageswill be basedon an appraisal of its termination as date pursuant C9.4. to If you have alreadymade the apprasial of termination as date you should send the calculation damagesalong with a bill for the amountowed,if of any, after reducing damagesby the amountof earnedeffective purchaser credlt, cash,not used. or

Q"

~~ENDA,, ,. of JoNEs Director TimberManagement
Enc]osures

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(a) tf remedying such breach requires on-the-ground action by Purchaser, Purchaser shall have 30 practicable operating days during Normal Operating Season to do so, except under emergency conditions not be delayed to prevent major damage. (b) If such breach does not require on-the-ground action by Purchaser, such breach shall be remedied within 30 calendar days. B9.4 Failure to Cut. In event of (a) termination for breach or (b) Purchaser's failure to cut designated timber on portions of Sale Area by Termination date, Forest Service shall appraise remaining Included Timber, unless termination is under B8.22. Such appraisal shall be made with the standard Forest Service method in use at time of termination. Damages due the United States for Purchaser's failure to cut and remove such timber meeting Utilization Standards shall be the amount by which Current Contract Value plus the cost of resale, less any effective Purchaser Credit remaining at time of termination, exceeds the resale value at new Bid Rates. If there is no resale, damages due shall be determined by subtracting the value established by said appraisal from the difference betnveen Current Contract Value and Effective Purchaser Credit.

If Purchaser has failed to cut individual trees in the portions of Sale Area cutover and there is no resale of such indlv~duaI trees, Purchaser shall pay Forest Service for cost of felling and removal or otherwise eliminating such uncut trees in addition to payment of damages described above, except for trees not cut for reasons stated in B6.4. B9.5 Settleraent If obligations of Purchaser have not been fully discharged by Termination Date, any money advanced or de~ositsd hereunder shall be retained to be applied toward unfulfilled obligations of Purchaser without prejudice to any other rights or remedies of Forest Service, Such funds may be treated as cooperative deposits under B4.225 for uncompleted work 30 calendar days after receipt of vcri~ten notice from Forest Service to Purchaser of work to be done and Purchaser's failure to deny the obligation or to do the world. B9.6 Contract Closure. The Forest Serv/ce officer si~nins this contract, his successor or superior officer shall give appropriate written notice to Purchaser when Purchaser has complied with the terms of this contract. Purchaser shall be paid refunds due from Timber Sale Account under B4.24 and excess cooperative deposits under B4.225.

DIVISION C Special Provisions In accordance with A23, the Sections, Subsections, and Items therein listed are attached and madea part hereof. This material is indexed by the numbering system used in Division B. The numbers after the C (whlch identifies material in this Division) indicate the Part, Section, Subsection, or Item of Division B, which is being supplemented or modified by each particular provision included in this Division.

128

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TIf<~ER SALE P.EPORT ~.~D AF.m~J~ISAL MT. BAX.ER-SNC,~UALMiE NATIONAL

DATE

DATE

DATE

DATE ~EV I E',CED ~Y: DATE

APF I%OV-EDBY:

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:--- CAIRO--TYPE 7 .............................................. CAh~DT'fPE6 ..........................................................

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ELDRED CREEKDAMAGE APPRAISAL The Eldred Creek Timber Sale expired Con,tar, No. 062090 ~ Purchaser - Gateway Lumber Company uncompleted Augus, 17.1985.

All specified roads have been compie,ed and accepted. All rlgh,-of-way volume has been removed. Cash on hand $0,00 PerformanC:e Bond $144,000.00 Damages-~rlll be calcula,ed based on ,he difference In 1:he raise of ,he original Sale and ,he appraised value a, termlna, lon since ,his sa~e Is nor planned ~e reef fared. C9.4 does no, apply. 1. Con+r~, Value and Uncu, Volume~, Termlna, lon Da,e All specles cedar 1267mbf x $410.00 = $519~470.00 Douglas-fir " 197mbf x $250.08 = $ 49,265.76 ~s~ern heml~k and o,her 3589mbf x $~30.0~ = $82~.470,00 ~'~n I ferous spec les ~92mbf X $ 0.50 = $ 196.00 P~ 5445mbf , $1,394,401.76 AppralsedYalue at Termlna,lon All species cedar Doug as-f 1 r I Wes,ern hemlock and o~rher con I ferous spec les PA~4 1267mbf x $177.13 = $224,425.71 197mbf x $201.61 = $ 59,717.17 558gmbf x $ 52.75 = $189,247.97

_~3~gZmb~x $ 19.45 = ~ 5445mbf $461,015.25 Transaction Evidence ' 5445mbf x $ 6.70 = $ 36~481,50 $497,494.75 New South awarded 8/12/85 (only sale sold around ,hls time) Bid Premium $15.92 on cedar (4000mbf) = $65,680.00 Other species fixed 9500mbf Average overbid $65,680.O0/9500mbf = $6.70/mbf Damage Appraisal Report Forma, - FSM 24~.54--5,6 Appralsa! Prepared by Carol GladsJo, April 1~,1986

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ELDRED CREEK DAMAGE APPRAISAL Ca I Cu I at Ion of Potent I al Damages 1. Volume and Contract Value of Remaining Timber a. On Area Not Cut Over (Item 4) b. On Area Cut Over (1) Designated (a) Cut, But Not Removed (Item (b) Not Cut (Item (2) Not Designated, Cut, But Not Removed Item 1 ( (3) Material ~a~tedz(J÷em3) i Total RemaI n Ing Timber ~' ~ 2. 3. 4. 5. LiquidatedDamages - None Provided for Cost of Resale - Not Reoffered Less Effective Purchaser Credits - None Maximum Potential Damages

~ ~F 5445 0 0 0 L 5445

$ 1,394,401.76 0.00 0.00 0.00 0.00 1,394, 401.76 0.00 0.00 0.00' 1,'394,401.76

Appraised Value at Termination Date Is: $497,494.75 Less Than Maximum Potential Demag~ Timber Not Reoffered B. Calculatiod of Resale Value I~F 497,494.75

AppraisedValue at Termination: .a. Original Terms b. New Terms 2. 3. 4. Adjustmentfor C~anged Conditions Re~ele Bid Value Line (B2) + (B3)

5445

5. Resale Value
Co

497.494.75

Calculatlonof Damage~ i. Maximum PotentlaI Damage (AS) 2. 3. 4. 5. Resale Value (BS) Damages(A5) less (B5) Unobl tgated Cash on Ha_nd Additional Due From PurChase .. :'~_. ~ ,394,40! .76 497.494.75 896,907.01 0.00 . 896~907.01

" 6. Refund Due Purchaser

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¯ !:.'

~

United States __ Departmentof AgricuIture ~ I,~(

Forest Mt. Baker-Snoqualmie1022 First Avenue Service National Forest Seattle,WA. 98104

.

I.

CERTIFIED MAIL- RE~3JRN. RECEIPT. REOUESTED ReplyTo: 2450

/..~(~,.~

~ll.l~

" ~.-'

Date: August 13, 1986

~t~.b~l~ Jim Hammer c/o Smokey Point Lumber, t~ ¯ 19129 Smokey Point Blvd. Arlington,WA. 98223 /~

~i
~ .4~

GentIemen : 'On December 29, 1985 your Eldred Creek Timber Sale, Contract #062090 expired uncompletedwhen you failed to submit a Multi-SaleExtension Plan. Accordingly,I have determineddamages due the United States pursuantto Provision B9.4 - Failure to Cut. Enclosed is a Bill for Collection, due August 25, 1986. for such damages. I have consideredyour failure to complete the contractand the resultant Governmentclaim under the ContractDisputes Act of 1978.

I. You were awarded the Eldred Creek Timber Sale on November 19, 1979, on contractForm 2400-6 (9/73), with a terminationdate of March 31, 1983. 2. The contract was subsequentlyextendedfor two years to August 17, 1985 under the Chief, Forest Service, waiver of extensionpolicy. Since your ~ompany was a party to the North Side Lumber Company lawsuit (Civil No. 83-490-BU),the contract was given a conditionalextension until 30 days after the February 15, 1984 injunctionwas dissolved. The North Side injunctionwas dissolved on November 29, 1985. When you failed to submit a Multi-SaleExtension Plan by December29, 1985, the contract expired. No timber had been removed by TerminationDate. A decision was made by the ContractingOfficer not to reoffer the remainingtimber because of the presenceof critical S-8 soils on the sale area. B9.4 Failure to.C~, specifies the meana of determining damages due the United States for Purchaser'sfailure to cut and remove such timber meeting UtilizationStandards as subtractingthe value establishedby appraisal at TerminationDate from the difference between Current ContractValue and EffectivePurchaser.

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Gateway Lumber Company Pursuantto B9.4, damages were calculatedas follows: Effective PurchaserCredit Current Contract Value of uncut timber Appraisedvalue at Termination Total damages Less cash on hand Amount owed by purchaser Decis io__n __

Page 2

5.

None $1,394,401.76 497.494.75 $896,907.01 None $896,907.01

It is my decisionthat damages are owed the United States and ~he determinationof such damages is corr~ct and in accordancewith Standard Provision B9.4 - Failure to Cut. Therefore,Gateway Lumber Company is liable to, and must pay the United States the sum of $896,907.01. This is the final decision of the ContractFSg Officer. This decision may be appealed to the AgricultureBoard of Contract Appeals. If you decide to make such an appeal, you must mail, or otherwisefurnish written notice thereof, to the AgricultureBoard of Contract Appeals, within 90 days from the date you receive this decision. A copy thereof shall be furnished to the ContractingOfficer from whose decision the appeal is taken. The notice shall indicatethat an appeal is intended,should reference this decision, and identify the contract by number. In lieu of appealing to the AgricultureBoard of Contract Appeals,you may bring action directly in the U.S. Claims Court, within 12 months of the date you receive this decision. Sincerely,

BRUCE MATEER ContEactingOfficer Enclosure cc: ~arringtonRD St. Paul Fire & Marine Insurance Company 1800 Park Place, Seattle,WA. 98101 F~A w/Bill for Collection

Case 1:87-cv-00435-EGB
U. So DEPARTMENT AGRICULTURE OF FORESTSERVICE ~

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PLACEOF ISSUE

~LL

FOR COLLECTION

Seattle,
DATE OFISSUE

8106186
Xt.Baker-Snoqualale )i.F. Gateway Ltm~er C~pany 1206 Noah Shore Drtve Cama.oIslaed, t~A 98292 10~2 Firs~81~. Seattle,

DESCRiPTiON

AMOUNT

Eldred CreekTlmberSale, Contract 8062090 Bill for Collection for damages
$896,907.0l

TS05

062090

8/25/86

$896,907.01

TRANS, CODE

APPROPRIATION (F,S,)

PRC~ECT AMOUNT

I

I

I

I

I

I

I

I

I

I I I

7052

$896,907.Ol

TOTAL