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

Case 1:87-cv-00435-EGB

Document 17-3

Filed 12/23/2005

Page 1 of 12

.....................

CARD

TYPF

5

...........................

38.15

38.18

38.15 "

25.32 0.00 11.70 15.33 (7.87) 15.33 0.00 0.00 0.25 0.25 0.00 ( 0.00) 0.00 52.69 0.00 52.69 0.00 126.29 178.98 "28.86 15.80 28.36 0.50 0.50 0.50 0.00 0.50 13.03 49-52 .28 53-56

0.30 0.30 0.30 13.42 13.42 13.42 17.72 17.72 17.72 ( 8.79)( 8.79)(8.79) 17.72 17.72 17.72 7.63 7.03 7.63 0.98 0.98 0.98 0.28 0.28 0.28 8.88 8.89 8.89 1.40 1.40 1.40 ( 0.00)( 0.00)( 0.00) 1.40 1.40 1.40 31-35 79.58 79.58 79.58 39.50 39.50 39.50 119.08 119.08 119.08 36-40 0.00 190.70 309.78 292.13 17.00 81.55 210.58 250.08 0.00 126.29 245.37 278.91 14.00 59.63 219.28 258.78 0.00 119.58 238.66 135.30 17.00 48.50 86.80 126.30

" "

7.09 .91 .oo .28

61-64 65-68 69-72 73-76

1.30 77-80 ! .00) 77.68 36.68 114.38 .00 238.52

....

9.62 8.82 8.62 0.00 0.00 0.00 250.08 258.78 128.30

853940.00 152.49 8.08 .00 152.49

0.00

Case 1:87-cv-00435-EGB

Document 17-3

Filed 12/23/2005

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Case 1:87-cv-00435-EGB

Document 17-3

Filed 12/23/2005

Page 3 of 12

GATh~qAY LUMBER COMPANY TIMBER SALE CONTRACT (Applicable to Sales to be Scaled After Felling) NATIONAL FOREST SALE NAME ELD~D C~EK FLANGER DISTRICT REGI~N [CONTRACTNO. 19023 47th AV NE ARLINGTON WA 98223

~ SUBREGION ~ ~WARD DATE TE~AT{~ DATE , Douglas-fir ~I-19-79 M~ch 31,1983

The parties thiscontract [o a~e The United Statesof Ame~cs, ~ct~n~ throu£h the ForestService, United S[a£esDepar{mentor A£r~cu~ure, hereinafter called Forest Service, and Gatewa~~any~ 19023 47th AV ~: ~Arlington WA 98223~

a corporation organized and existing under the laws of the State of Washinqtonr hereinafter called Purchaser. 2 Forest Service having advertised~-a sale at which either (1) Purchaser, whose required bid deposit is now held by Forest Service as an initial deposit, was the successful bidder, or (2) no bids were received and Purchaser having snbsequently offered at least the minimumadvertised price and made an initial deposit in the same amount as the bid deposit specified in the sale advertisement; and the parties hereto desiring to record their agreement; now. therefore, In consideration of the premises and the promises hereinaEter contafi;ed, unless provided otherwise herein, Forest Service agrees to sell and permit Purchaser to cut and remove end Purchaser agrees to purchase, cut and remove Included Timber. This contract censists of three Divisions: A - Specific Conditions, B - Standard Provisions, and C - Special Provisions, together with Saie Area Map, Drawings and specifications for developments (if any) and such attachments may be provided for in Division C. Specific Conditions are numbered and apply tc lhe P~rt, Section, Subsection, or hem of the SIandard Pmvisians, as indicated hereunder. Other conditions of this contraci are stated in Division C Special Pro-isions. iN WITNESS WHEREOF, parties the hereto have executed this contract as of ti~e award date.

UNITED ST~.TES

OF AMERICA

":FL ~ DUN ll~ CAMPBELL FOREST SUPERVISOR Two Witnesses: GATEWAY LL~4BER COMPANY

19023

47th

AV NE WA 98223

Arlington

Secretary

o~ the co~oration

named as Purchaser herein;

that

said corporation; saidcontract dulysigned that was fg~ and in behalf said@orporati~n authority its governof by of ing body, and is withinthe scopeof its co.oratepow6d__

2400-6 Pete 101 (9/73)

Case 1:87-cv-00435-EGB

Document 17-3

Filed 12/23/2005

Page 4 of 12

The following conditions apply to the indicated AI - Location and Area, applicable to BI,I This Sale Area of 138

portions

of Division

B - Standard

Provisions

issued Sept. 1973 (Mo.th-Y~)

acres 24, To30No, Ro9Eo¢

more orlessislocatedin: W.Mo, surveyed, Snohomish County,

Section 23, NE~ section Washington°

A2 - VolumeEstimateand Utilization Standards, applicableto B2.1,B2.2, B2.4 and B6.4
MINIMUM TREE SPECIFICATIONS INCLUDE ONE MINIMUM PIECE DIAMETER BREAST HIGH

MINIMUM PIECE SPECIFICATIONS

SPECIES

AND PRODUCT

ESTIMATED QUANTITY AND UNIT OF MEASURE

i/ Pieces subject Pricing: Douglas-Fir

to Per M M Board Feet 9.0 9.0 9°0 8 8 6 6 33 1/3 33 1/3 33 1/3 200 3700 1300 Acres

Western Hemlock and Other Coniferous Species All Species Cedar

Material Subject to Per Acre Pricing: (That which does not meet the above specifications.) Utility (Pulp) and Special Cull i__/ A PIECE IS ONE OR MOP~E AI3
TOTAL

RODUCTS

109 9°0 12 6 N/A (ONE OR MORE SCALING SE(4ENTS) C( ~TAINING AT LEAST

5200 MBF 109 ACP~ES applicable to B2.3; acres are approximate: Number Acres 104 5 (170 M BD FT)

A3 - Timber Designations,

Clearcutting Units (B2.31) Specified Road Clearing (B2.32) OverstoD,-Removal Units (B2.33) Understory-Removal Units (B2.34) Individual Trees (B2.35) Incompletely-Marked Timber (B2.36) A4 - Dead Trees Required to be Felled, Size Requirements: 15 applicable

2

to B2.12, B2.3 and B6.4 12 inches d.b.h.

feet high and

Dead trees to be cut as part of Road Construction will be described in Sec. 201o Number Limitations: Applicable only if Sale Area Map indicates there are subdivisions where timber is to be designated after date of sale advertisement, In addition to dead trees felled within Clearcutting Units, construction clearings and other authorized development clearings, no more than N/A dead trees must be felled within subdivisions, or those portions thereof, where timber is designated after date of sale advertisement. Number limitation does ~ or portions thereof, designated at time of sale advertisement.

Case 1:87-cv-00435-EGB

Document 17-3

Filed 12/23/2005

Page 5 of 12

A5 - Timber PaymentRates, applicable Aba - For Species and Products

to B3.1 end B4.0 under B3.2
OF MEASURE REQUIRED DEPOSITS SLASH DISPOSAL S BASE iNDEX

to be Paid for at Rates Escalated
RATES

PER UNIT

SPECIES

AND

PRODUCT

UNIT OF MEASURE

ADVERTISED S

BID PREMIUM $

NONE

Abb - For Species

and Products to be Paid for at Flat Rates
RATES PER UNIT OF MEASURE REQUIRED DEPOSITS SLASH DISPOSAL $

SPECIES

AND

PRODUCT

UNiT OF MEASURE

BASE $

ADVERTISED $

BID PREMIUM $

i/

Pieces Subject Per M Pricing: Douglas-Fir

to M BD FT 9°62 250.08 250.08 6.38

Western Hemlock and Other Coniferous Species All Species Cedar ACRES Material Sub2ect to Per Acre Pricing: (That which does not meet the above specifications,)

8,62 8.62

126,30 258~78

103o70 151~22

230.00 410~00

6.38 6.38

Utility (Pulp) and Special Cull 1o83 1.83 1o83 A PIECE IS ONE OR MOR AI3 PRO )UCTS (C ~E OR MORE S 2ALING S ~;MENTS) CO ~TAINING AT LEASq NET CC For purposes "of convenience in collection and bookkeeping, Bid Rates stated in A5 include payment of deposits for sale area betterment required pursuant to 16 U.S.C. Required Deposits 2400.6, Page103 (9/73)

Case 1:87-cv-00435-EGB

Document 17-3

Filed 12/23/2005

Page 6 of 12

National

Forest

First Avenue Seattle, WA 98104 2450

Ray Hurlbert Gateway Lumber, inc. 27408 72nd Ave. Stanwood, VIA 98292

RE:

Eldred Creek Timber Sale Contract No. 062090

Dear Sir: Your letter of March 29, 1982, requested 153 days of Contrac~ Term Adjustment for time lost during the 1981 field seaso~. This is for tl~e entire ~ormal OperatingSeason which runs ,From June ] to October 31, (A20). I have reviewedyour plan of operation (Cf,.3)and the anr~ualsche.~|ule planned activities{B 6,3i) and ,~a~.foundtim follov~ing: Plan of Operations(C6.3) - this indicat~;s~hat :;our plans ~ere to begin loggingUnit No. 2 in June 1981 to be follo;.~eo Unit i~o. ] in by September1981. Annual Schedule of Najor Activities (~ 6.31). This indicated a change from your plan of operations. This revised schedule indicated that Unit No. i would be logged first, followed by Unit No. 2 in October, 1981. However,this schedule was not submitted to the DistrictRanger until October 6, 1981, or 25 days prior to the end of the Normal Operating Season. B6.31 requires that this schedule be submitted annually prior to commencing operations.Therefore, my decision ~ill be based on your ulan ef operationssubmitted ~n 19~0, since that is the only plan we had when you lost time. ~' Roao,:a. 305Ganc:~'.ODa~,'~~ were]].~.~e,. both {~,ys]~,p~. Repairs uotnroads zo were completed SepLe~Der b~ 24, l%~Jl,so access~.o the E~n~i['_e sale availableat tI~L ti~e.

Case 1:87-cv-00435-EGB

Document 17-3

Filed 12/23/2005

Page 7 of 12

tinder the 1980 plan of operations,you lost 24 days from September1 to September 2g, 19~l. However, since an estimated 40 percent of Unit No. l could have been logged at any time from September l, I am granting only half the time lost. Therefore,pursuant to ~8.21, the TerminationDate on Al9 is adjusted to June 12, 1983. This covers y~ur loss of time of 12 days between September l, 1981 na September24, 1981, Sincerely,

BRUCE MATEEI~
B~UCEMATEER Timber Staff Officer cc: Monte Cristo

' '~'~'~. 0611cVMELCHER/j 5/82 c/04/I

, ~.~..-, ~/_...~,

Case 1:87-cv-00435-EGB

Document 17-3

Filed 12/23/2005

Page 8 of 12

Mt. Baker-Snoqualmie National Forest

1022 First Avenue Seattle, Washington 98104 2450

GatewayLumberCo. 19023 47th Ave. N.E. Arlington, Washington 98223

Re: ELDRED CREEK Timber Sale Contract No. 06209-0 Wehave received your recent letter in which you request mutual cancellation of your ELDRED CREEK Sale Contract or Contract Term Adjustment for the 1982 operating season. I have reviewed your sale on the ground, and am not willing to consider mutual cancellation as you suggest. Immediately prior to your commencing operations, we will repair the road damageso that you may operate on your sale and complete your contract obligations. In regard to Contract Term Adjustment, I find thatyou are eligible 66 days as follows: Days in 1983 operating season Percent of sale area not available in 1982 operating season due to road damage Days of Contract Term Adjustment 153 43% 66 for

Therefore, pursuant to B8,21, the termination date in AI9 is adjusted to August 17, 1983. This covers your loss of 66 days by adding these days to your previous termination date of June 12, 1983. Your request for Contract Term Extension dated January I0, 1983 is being processed and the contract modification will be dent to you for s!.g~ature shortly. A condition of this extension is that you must submit Plan of Operations (C6.3) for our approval. Please send this to the Darrington District Ranger as soon as possible. A form for this..purpose.T.:~T:is at-tached for your use.

BRUCE MATEER Contracting Officer

Case 1:87-cv-00435-EGB
Forest

Document 17-3
(Timber Sale)

Filed 12/23/2005

Page 9 of 12 Contract No.
062090 Eldred

AGREEMEF:, TO MODIFY CONTRACT
1. It is mutually agreed-that the above designated timber ~e contract~ signed by

Gateway Lumber Company of thepurchaser and by DonR. Campbell Arl inqton , Wash i nqton , Forest Supervisor (Title) hereinafter for

(N=me)

19th dayof November,1979 ~/~~X~ the Un|tedStates of Amerlca of the as ~~R be extended to the 17th day of September, 1983 and be modified as follows: Pursuant B8.3 purchaser seeks conditional extension for the purpose of .... consideringthe conditionsoffered pursuant to B8.23 - Contract Term Extension,Forest Service hereby grants a 30 day conditionalextension during which period of time purchaser agrees not to cut or remove Included Timber from the sale area.

2. Pursuant to this mutuM agreement, the purchaser hereby agrees to cut and remove timber In strict the terms and provisions of the aforesaid contract a~ herein modified. IN WITNESSWHEREOF, the parties hereto have executed STATES thla modification of contract

accordance with all and siagulax 16th day

a~ of the 1/

of

August
By:

:

19~L.
UNITED OF AMERICA [-P "L~ ~''~-'k~ /

¯ ~ ,,,.
~

Bruce Mateer

Gateway Lumber Company

Title :

/'~'

~ WA98292

)

Camano Island,

~cret~ of t~e corporation named aa purch~r here n; that~I $,:~ ~ ~ ~v~ ~: ~ _ who si~ed this contract on behaH of the purcha~r w~ the~ - '~ t"~.:2 ~. ~ : of said co~oration; that said contract w~ duly signed for ~d ~ behalf of ~d corporation by authont'~-~f within the scope of i~ co~ora~ ~wera.

i~ governing

body, and

[CORPOR~T~sEAL S/ ~o

2400-9

Case 1:87-cv-00435-EGB

Document 17-3

Filed 12/23/2005

Page 10 of 12
ELDI~D CRERK

TO EXTEND MODI~ AND TIMBER SAtECONTRACT

1. It is mutually agreed, that the contract period of the ~bove designated timber sale contract~ signed by. W.J. Hammer, President of 19023 47th Ave. N.E. ~ Arlinqton, Washin_o~-on 98223 ~ hereinafter called ~]aepurchaser by and Bruce Mateer for Don R. Campbell, Forest Supervisor for the UnitedStateso£ America as of th 19th day of November 1979as heretofore modified, be extended to~85 >~x~ogg~X~>D~mx~te~i~x: and in addition be modified as follows: a. The rates to be paid for stumpage and required deposits, for all timber cut which is scaled on or after August 1 , 1983 are shown in A5b, revised

b. By revising A13, revised 2-15-8--3, which is attached hereto and made a part hereof. c. Add the following to A22 - Inapplicable Standard Provisions: Advance Deposits B4. 221 B4.23 Refund of Excess Cash (Continued on page 2 which is attached hereto and made a part hereof) . 2. Pursuant to this mutual agreement, the purchaser agrees to cut and remove timber in strict accordance with all "! and singular the terms and provisions of the aforesaid contract as herein modified. ¯ 3. IN W~TNESS WHEREOF, parties, the hereto have executed this agreenmnt to extend and modify contract as of of Y~' #~'/~/,'~ /~.~ : UN~ED STATES OF AMERICA ~ flae~day Contracting // -~" ~7~: ~- ";-~" Two Witn~ses := ~ ~-~y Bruce~ateer TitleOfficer GATEWAY L~IBER CO~P~

;,- -~ who si~ed this a~eement to of said corporation; " Z" ~: ~at said agreement to extend and modify contract was duly si~ed for and in behalf of said corporation by au~ofity of ~e gover~g body~ and is within the scope of its corporate powers. Corporate Seal~ Consent of Surety corporadOhnamedas purchaser herein: tha~ ~:",,, ~ ~~, ~:~ :, extend and modify contract on behalf of the puretiaser was then (surety) ~) hereby join in this agreement to extend the contract period and a~ee that our bond shall bind us, our heirs, executors, adm~istrators, successors and assi~s, and each and every one of us and tbe~ jointly and severally, in the same
manner as if said extended period had been ~eluded ~ the ori~nal period of contact to insure eomp~ance

W%

St.

Paul Fire

a Marine

Insurance

Co.

which our bond was given. Dated a~ RF'~TTI F, W~IIlNGTON In presence of: Witness

, this

20TH Surety

day of SEPTEMB____E_P.~ ,~85

Individual

(Seal)' (Seal)

St. Paul Fire ~ Marine Insurance Co.
t]usiness address

1700 FOURTH BLANCHARD & BUILDII'IG ~O1

Case 1:87-cv-00435-EGB

Document 17-3

Filed 12/23/2005

Page 11 of 12

i ~greement

to Extend

and

M~dif~

cdntraCt

(continued)

Page 2

C.

Add the following

to A23 - List of Special

Provisions:

C4.221 (Option C4.23 (Option C4.231# C4.251# C4.252# C4.4 C5.12 C6.24# C6.25# C6.313# C6.341 C8.641 C9.2 C9.5

2) 2)

Advance Deposits (4/82) Refund of Excess Cash (4/82) Refund of Excess Extension Deposits (11/82) Deferral of Extension Deposits (i1/82) Extension Deposits (4/82) Payments Not Received (6/81) Use of Roads by Purchaser (2/82) Protection of Cultural Resources (6/81) Protection of Habitat of Endangered, Threatened and Sensitive Species (11/80) Special Cutting Schedule (3/71) Prevention of Oil Spills (6/81) Use of Timber (6/81) Disputes (7/80) Settlement (10/77) from A23: Protection of Cultural Resources (5/76)

Delete the following C6.24# c4.4 C5.12 C6.25# C6.341 C8.641 C9.2 C9.5 Add sale

Payments Not Received (2/76) Use of Roads by Purchaser (12/76) Protection of Habitat of Endangered Prevention of Oil Spills (6/78) Use of Timber (6/78) Disputes (11/75) Settlement (10/77) ~ea ahd Slash Disposal C5.411# Maps, revised Deposit 3/83. Schedule,

Species

(6/78)

By revising

- Road Maintenance

revised

1/27/83. and

And add the provision made a part hereof.

pages from the above which

are attached

hereto

Case 1:87-cv-00435-EGB

Document 17-3

Filed 12/23/2005

Page 12 of 12

A5 - Timber Payment R~es, applicable B3.1 and B4.0 to

UNIT OF MEASURE

BASE INDEX

None

Redetermined
UNIT OF MEASURE

SPECIES

AND

PRODUCT

BASE

s

SUBJECT PI IR M PRICNG: TO I_/ PIECES iM Bd Ft 9.62 Douglas-fir 8.62 Western hemlock andM Bd Ft other coniferous species 8,62 All species cedar M Bd Ft MATERIAL SUBJECT PERACRE TO PRIIING: (That which does not meet the above %-pecifications Utility (pulp) and Acre 1.83 special cull

250.08 126.30 258.78

103.70 151.22

250.08 230.00 410.00

15.54 15.54 15.54

I

1.83

---

1.83

N/A

I/ A piece is one or more Al3!produ~--(.one or m( -e Scal segments containing ~ , at least 30 board feet net scM~e. .~
m &5 ~-h~d~ ~yme~" oi de~t~ ~ sale ~e ~6 li~ C ~:'~614. ~ea betterment r~uired SUCh DeW'sits pursuit

~sed 2-15-83 .....