Tri-State Asphalt v. McDonough County Supreme Court Case

FOREST PRODUCTS SALE CONTRACT

STATE OF WEST VIRGINIA

COUNTY OF

This contract made and entered into on this day by and BETWEEN or , a corporation, party of the first part, hereinafter called the "Seller(s)," whether one or more, and or , a corporation, party of the second part, hereinafter called the "Buyer(s)," whether one or more.

WITNESSETH:

Article I. For and in consideration of the sum of $ dollars, receipt of which is hereby acknowledged, the Seller hereby agrees to sell and the Buyer agrees to buy all forest products designated for removal by the Seller from property located in the County of , State of West Virginia, and being described as follows:

SEE ATTACHED DESCRIPTION

The Buyer agrees to pay at the signing of the contract for the forest products designated for removal.

All of the forest products covered by this contract, described below, have been marked or designated by the Seller in the following manner:

AIL MERCHANTABLE TREES IN CLEAR-CUT AREA WILL BE SOLD.

ALL TREES IN STREAMSIDE MANAGEMENT ZONES MARKED WITH BLUE PAINT WILL BE SOLD.

The Buyer represents that he has inspected the sale area and familiarized himself with the kind, amount and quality of all products marked or designated by the Seller and covered by this contract.

Part I - General Terms

Article II. The Seller warrants that he has merchantable title to the products covered by this contract, and that same, is free, of all liens and encumbrances.

The Seller grants to the Buyer the right of ingress and egress over the lands of the Seller as may be necessary for removal of products specified by this contract; provided, however, that no mechanized equipment not equipped with rubber treads shall be operated on or across any paved or blacktop surfaced roads on the property of the Seller without first laying planks on the road to prevent direct contact between the vehicle and the road.

Any additional easements will be the responsibility of the Buyer.

Article III. This contract shall not be assigned in whole or in part without the written consent of the Seller and in event of assignment, the terms of this contract shall apply.

Article IV. The Seller hereby designates as it’s technical agent and gives said agent the authority to stop all operations of the Buyer on the Seller’s property when it appears that terms of this contract are being violated.

Said Seller further grants the Agent, , the right to halt logging operation on day or days when grounds are so wet that logging would cause excessive damage to the land, thus causing extreme erosion, etc.

The Buyer agrees to notify the Agent not less than (5) days beginning operations under terms of this contract.

Article V. The terms of this contract shall be for a period of months from the date hereof. The Buyer will not be able to harvest timber during . Any other time period the Buyer may harvest and remove any and all products covered by this contract, and upon harvesting and removal title shall vest in the Buyer.

All severance taxes will be borne and paid by the Buyer.

Article VI. The Buyer agrees to take all reasonable steps to prevent fire to the timber on above described lands and agrees that he will use all available men and equipment to suppress any fires originating said lands while the Buyer’s operations are in process.

The Buyer further agrees to pay the Seller for any and all damage from fire to timber or other property, of the Seller originating through the negligent act or acts of the Buyer, his agents, or employees and that he will further pay the Seller for any expense incurred by the Seller in righting or suppressing said fires.

PART II - PERFORMANCE REQUIREMENTS

Article VII. Existing logging roads shall be utilized wherever practicable, and upon completion of logging must be repaired and left in original condition. Where new roads must be cleared, their location midst be approved in advance by the Seller or his agent. Any unmarked merchantable trees which must be cut to clear a road shall be marked by the Seller or his agent in advance or culling.

Said trees shall be purchased from the Seller by the Buyer and paid for at one-half the rates specified in this contract for trees unnecessarily damaged.

Damaged trees of desirable growing stock which arc unnecessarily damaged in the course of the Buyer’s operations will be marked for cutting by the Seller or his agent and shall be paid for at the following rates which are considered to be approximately double their stumpage value.

Pine Sawtimber $ Per 1000 Board Feet, Doyle Scale

Hardwood Sawtimber $ Per 1000 Board Feet, Doyle Scale

Pine Pulpwood $ Per Standard Cord

Hardwood Pulpwood $ Per Standard Cord

For purposes of this contract, unnecessary damage to a desirable tree shall be considered as breakage of the main stem, uprooting, or any abrasion which exposes wood on one quarter or more of the circumference of the main stem, which damage could have been avoided through the use or reasonable care.

Unmarked trees of desirable growing stock which are cut due to the Buyer’s negligence or error shall be paid for at the specified rate for trees unnecessarily damaged.

If any designed trees are cut by the Buyer prior to payment the total payment for the designated forest products will immediately become due and payable.

Article VIII. The buyer shall be responsible for the removal of any tree or bush or portion thereof which is felled in any stream or on any public highway, road, ditch draining the roadway or felled in a way which obstructs the same in any manner whatever.

Article IX. BUYER and subcontractors shall in all things, conform to the requirements of the Worker’s Compensation Act of the Laws of the State of West Virginia and qualify thereunder as a condition precedent to the performance of this contract. Acknowledge

He shall as required by the SELLER, submit satisfactory proof of qualification and conformity of himself and each subcontractor with said act.

Buyer shall maintain General Liability Insurance with minimum coverage of $ for bodily injury or property damage arising out of a single occurrence.

Article X. Endangered Species Clause - BUYER and SELLER take cognizance of the Federal Endangered Species Act. 16 U.S.C. Section 1531 et seq., and the regulations appearing at 50 C.F.R. Section 17, which list endangered and threatened fish, wildlife, and plants, including but not limited to the gopher tortoise, (Goperus Polyphemus). Red-Cockaded Woodpecker (Picoides), the West Virginia Black Bear, and such other species of wildlife, fish, and plants which may from time to time be listed as threatened or endangered.

SELLER and SELLER’s AGENT represents that there are no threatened or endangered species of first, wildlife, or plants, or habitat therefore on any of the land subject to this agreement to the best of SELLER’s knowledge.

SELLER and BUYER agree that should the presence of any threatened or endangered species or evidence of habitation thereof be found on any of the acreage and the thereon (as is determined by BUYER in consultation with applicable authorities of agencies) and BUYER shall be compensated or excused from payment as the case may be for the prorated portion of the purchase price which relates to the affected acreage.

Article XI. When the BUYER has completed his operations as authorized by this contract, he shall remove all equipment and other objects located on the property by himself, his agents, or his employees.

Fences when damaged by cutting operation will be restored to original condition. Roads, skid trails, and loading ramps, will be water barred as necessary to prevent erosion problems. Harvesting operations should comply with the Management Practices attached. As well as any Management Practices Codes, Rules and Regulations of the State of West Virginia, or any agency thereof, regarding Forest Products.

Upon completion of all terms of this contract the BUYER shall notify the SELLER who will make a final inspection.

Article XII. If any of the conditions of these Article are violated by the BUYER the SELLER may, upon giving the BUYER notice in writing, suspend all operations engaged in by the BUYER under this contract until the conditions and requirements of this contract have been complied with and if the BUYER refused to comply with each and every condition and requirement set forth in these Articles and persists therein after notice in writing then the SELLER may terminate this contract.

Article XIII. If Seller(s) or Buyer(s) is a corporation, the person(s) executing this contract agree that they have been authorized by such corporation to execute same.

INWITNESS WHEREOF the above contract has been executed on the day of , 20 , at , West Virginia.

Acknowledgment for Individual – Buyer(s)

STATE OF

COUNTY OF

The foregoing instrument was acknowledged before me this (date), by , Buyer(s).

(Seal)

Notary Public, State of

Printed Name:

My Commission Expires:

Acknowledgment for Corporation - Buyer

STATE OF

COUNTY OF

The foregoing instrument was acknowledged before me this (date), by (name and title) of (name of corporation), Buyer, a corporation, on behalf of the corporation.

(Seal)

Notary Public, State of

Printed Name:

My Commission Expires:

Acknowledgment for Individual – Seller(s)

STATE OF

COUNTY OF

The foregoing instrument was acknowledged before me this (date), by , Seller(s).

(Seal)

Notary Public, State of

Printed Name:

My Commission Expires:

Acknowledgment for Corporation - Seller

STATE OF

COUNTY OF

The foregoing instrument was acknowledged before me this (date), by (name and title) of (name of corporation), Seller, a corporation, on behalf of the corporation.

(Seal)

Notary Public, State of

Printed Name:

My Commission Expires: