Sample Contract
TIMBER SALE CONTRACT THIS AGREEMENT, made and entered into this______day of____________year_____, by and between_____________________________, hereinafter referred to as “Landowner” and JAMES H. REUSS, JR., residing in Kingston, New York, hereinafter referred to as “Contractor”.
WITNESSETH:
The landowner agrees to sell and convey to the contractor for a period of _____________( ) from the date hereof, all usable hardwood and softwood timber that is suitable for selective cutting and marked with blue paint on the land belonging to the landowner, comprising of ______acres, more or less, situate in the __________________________________, New York. ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ____________________________________________________________ FURTHER, the landowner and the contractor, in the execution of their obligations under this contract, agree to peaceably abide by and satisfy the following conditions and terms:
CONTRACT FOR HARVESTING:
1. The contractor agrees to undertake and carry out his timbering operations in a proper workmanlike manner according to the best standards of cutting timber. It is expressly agreed and understood by the parties hereto that this contract is a contract for harvesting of timber only and that nothing herein contained shall be construed to convey to the contractor any right, title or interest in the real property of the landowner.
INDEMNIFICATION:
2. Contractor shall indemnify and hold harmless landowner from all claims, damages, losses, expenses or liabilities, including reasonable attorney’s fees and court costs, asserted by the contractor, or other arising from or related to the activities and operations of the contractor connected with the contract. The contractor represents to the landowner that he is fully insured against any bodily injury and will hold the landowner harmless from any and all claims arising out of the Contractor’s performance of the work contemplated by this agreement. The contractor will also hold the landowner harmless for all claims against any bodily injury to any person or entity employed by the contractor.
DAMAGE TO CONTRACTOR’S PROPERTY:
3. The landowner shall not be held responsible for the acts of third parties, including trespass, theft, burglary, malicious mischief, arson or other destruction or damage, weather or natural causes, inevitable accident or human agency, to the contractor’s property or equipment; it is understood that the contractor is responsible for providing his own insurance coverage therefrom.
COMPLIANCE WITH LAWS:
4. The contractor agrees to comply with all federal, state, county and town laws regulating timber cutting, removal and transport operations. Contractor shall secure any and all permits required to conduct this operation.
DAMAGE TO IMPROVEMENTS AND FACILITIES:
5. Any damage to improvements or facilities including, but not limited to, utility lines, both public and private, roads, trails and the like caused by the contractor shall be the responsibility of the contractor and the obligation of restitution for repair of any such damage shall be understood to be wholly that of the contractor. Any damage to improvements or facilities not specifically stated herein, including, but not limited to, utility lines, both public and private, roads, trails and the like, traveling or adjacent to the property, caused by the use, accident, neglect or other act of misfeasance of the contractor, shall be the responsibility of the contractor, and if required and authorized by the damaged party, shall be immediately repaired and restored to the damaged party’s reasonable satisfaction.
SKIDDING:
6. No skidding shall be allowed on private or public lands adjacent to the sale area, but only on designated roadways on the landowner’s property.
TREES FELLED OVER PROPERTY LINE:
7. Timber unauthorizedly felled over the landowner’s property lines into adjacent property shall be pulled back to the landowner’s property by the contractor. Damage caused to the abutting property by such felling shall be rehabilitated by the contractor and all debris shall be removed by the contractor.
RELEASE OF CERTAIN CLAIMS:
8. The contractor hereby agrees to save harmless and to indemnify the landowner against any and all claims for injury to property and persons arising out of the operations of the contractor, and that this instrument will act as a release to the landowner from any and all such claims.
SUSPENSION OF OPERATIONS DUE TO WEATHER:
9. The landowner and/or contractor reserves the right to suspend cutting and skidding operations when the ground conditions are, in the landowner’s and/or contractor’s opinion, too soft. The terms of this agreement shall be extended for such a period of time equal to the period(s) of time of any such suspension.
TIMBER CUTTING AND SKIDDING:
10. Timber cutting and skidding shall be carried out by the contractor in a way and manner that minimizes damage to other timber, immature trees and timber reproduction.
ROADWAYS:
11. Upon completion of skidding operations and harvesting, the contractor shall level and backblade all skid roads, shale roads and other areas, including the landing or loading area, all storage areas and clearing that have been used by the contractor.
WORK AREAS:
12. On the completion of the contract between the landowner and the contractor, all work areas, including roads, storage areas, all trails, skidways and open areas shall be left in a neat and clean condition and clear of all debris.
DAMAGED OR BENT OVER TREES:
13. All trees three inches (3”) in diameter and over which are bent over or otherwise damaged beyond recovery must be felled or pushed down to the ground. The contractor shall use due care in felling, skidding and hauling so as to avoid unnecessary damage to young growth and other property of the landowner.
TITLE, BOUNDARY LINES AND ACCESS:
14. TITLE: The landowner warrants that the landowner has clear and unencumbered title to the stumpage subject to this contract.
BOUNDARY LINES: The landowner guarantees to have the boundaries marked with paint or other suitable means before any timber is harvested.
ACCESS: The landowner agrees to secure entry and right-of-way to the contractor on and across the area covered by this contract, including access via land owned by a third party, if necessary. The landowner shall be responsible for obtaining any easements and rights-ofway to the landowner’s property, if necessary.
WET WEATHER:
15. In the event of excessive wet weather, the landowner or the contractor may suspend the operations in order to avoid undue damage to the property. The length of the agreement shall be extended by a corresponding length of time.
SAW TIMBER:
16. If applicable, all saw timber is to be utilized to the smallest possible merchantable tip. Logging debris is to be lopped down at a height of _____________ feet. The contractor shall make the final determination.
STUMP HEIGHT:
17. Stump height shall be as low as possible; in no case shall they exceed greater than one and one half (1 ½) times the DBH (Diameter Breast Height) of the tree being harvested. In case of deep snow, stumps must be shoveled out to meet this requirement.
CARE TO BE TAKEN BY CONTRACTOR:
18. Care shall be taken by contractor in removal to prevent unnecessary damage from felling and logging market trees. All hanging or leaning trees shall be flattened or removed for firewood.
FIRE:
19. Care shall be taken at all times by the contractor and his employees against fire. Contractor must conform to all local, state and federal regulations in relation to fire precautions.
WORKMANLIKE MANNER:
20. Contractor will cause the timber to be cut in a good, workmanlike and proper manner. Contractor will comply with all local, state and federal laws and regulations regarding the handling of slash, tops, erosion, streams, power lines and roads.
NOTICE:
21. Contractor shall notify landowner or landowner’s representative at least one (1) week in advance of his intent to commence the timber harvesting operation.
LOCATION OF ACCESS ROADS AND TRAILS:
22. The contractor agrees to leave open and repair any damage to, all main access roads and major skid trails, existing or constructed, caused by contractor and to repair and maintain all roads utilized by the contractor to conduct his operation. Upon completion of the harvesting operation, leaving roads and major skid trails in good condition shall mean at minimum smoothing out of trails/roads to remove ruts and bumps and keeping roads free of any logging debris. Seeding of areas with high potential for erosion will be required. A rye grass or other soil erosion control mix shall be used with hay mulch, if necessary.
REMEDIES:
23. (a) If the landowner or contractor seek damages for breach of this contract through court proceedings, and if either party prevails in such proceeding, in whole or in part, then the nonprevailing party agrees to pay all of the prevailing party’s actual and reasonable expenses, including attorneys and expert witness fees.
(b) The landowner agrees to mitigate the damage for breach by offering the timber for resale, if the timber is saleable based upon its volume or quality.
LIABILITY AND INSURANCE:
24. It shall be understood that this contract does not create an employer-employee relationship, it being the intention and contemplation of the parties hereto that all acts performed by the contractor in carrying out the provisions hereof shall be those of an independent contractor. The contractor is an independent contractor for all purposes including Worker’ Compensation and is not an employee or agent of the landowner. The landowner agrees that the undersigned contractor, expect as otherwise specifically provided herein, shall have the sole control of the method, hours worked, time and manner of any timber cutting to be performed hereunder. The landowner reserves the right only to inspect the job site for the sole purpose of insuring that the cutting is progressing in compliance with the cutting practices established under this contract. The landowner takes no responsibility for supervision or direction of the performance of any of the harvesting to be performed by the undersigned contractor or his employees. The landowner further agrees to exercise no control over the selection and dismissal of the contractor’s employees.
REPRESENTATION BY LANDOWNER:
25. The landowner further agrees:
1. To guarantee title to the forest product covered by this contract and to defend it against all claims at his or her expense.
2. Non concurrent contract involving the area or period will be entered into by the landowner without written consent of the contractor.
3. The contractor and his employees shall have access to the area at all reasonable times and seasons for the purpose of carrying out the terms of this contract.
4. All designated trees must be cut but the contractor shall retain the right to leave felled such designated trees as he may consider not containing merchantable material worth removing from the area.
ASSIGNMENT
26. The contractor agrees not to assign this contract in whole or in part, without the written consent of the landowner, which shall not be unreasonably withheld or delayed.
MISCELLANEOUS:
27. (a) All prior understandings, agreements, representations and warrantees, oral or written, between Landowner and Contractor are merged in this contract; it completely expresses their full agreement and has been entered into after full investigation, neither party relying upon any statement made by anyone else that is not set forth in this contract.
(b) Neither this contract nor any provision thereof may be waived, changed or cancelled except in writing. This contract shall also apply to and bind the heirs, distributes, legal representatives, successors and permitted assigns of the respective parties. The parties hereby authorize their respective attorneys to agree in writing to any changes in dates and time periods provided for in this contract.
(c) Any singular word or terms herein shall also be read as in the plural and the neuter shall include the masculine and feminine gender, whenever the sense of this contract may require it.
(d) The captions in the contract are for convenience of reference only and in no way define, limit or describe the scope of the contract and shall not be considered in the interpretation of this contract or any provision hereof.
(e) This contract shall not be binding or effective until duly executed and delivered by Landowner to Contractor.
(f) Each party shall, at any time and from time to time, execute, acknowledge where appropriate and deliver such further instruments and take such other action as may be reasonable requested by the other in order to carry out the intent and purpose of this contract. This subparagraph shall survive closing.
IT IS FURTHER MUTUALLY UNDERSTOOD AND AGREED that this contract embodies the entire agreement between the parties hereto and there have not been any agreements, representations or warranties, oral or written, between the parties other than those set forth or provided for in this agreement. This agreement may not be modified or changed, in whole or part, except by written agreement signed by both parties hereto. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written.
______________________________________________________ LANDOWNER ______________________________________________________ CONTRACTOR
WITNESSETH:
The landowner agrees to sell and convey to the contractor for a period of _____________( ) from the date hereof, all usable hardwood and softwood timber that is suitable for selective cutting and marked with blue paint on the land belonging to the landowner, comprising of ______acres, more or less, situate in the __________________________________, New York. ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ____________________________________________________________ FURTHER, the landowner and the contractor, in the execution of their obligations under this contract, agree to peaceably abide by and satisfy the following conditions and terms:
CONTRACT FOR HARVESTING:
1. The contractor agrees to undertake and carry out his timbering operations in a proper workmanlike manner according to the best standards of cutting timber. It is expressly agreed and understood by the parties hereto that this contract is a contract for harvesting of timber only and that nothing herein contained shall be construed to convey to the contractor any right, title or interest in the real property of the landowner.
INDEMNIFICATION:
2. Contractor shall indemnify and hold harmless landowner from all claims, damages, losses, expenses or liabilities, including reasonable attorney’s fees and court costs, asserted by the contractor, or other arising from or related to the activities and operations of the contractor connected with the contract. The contractor represents to the landowner that he is fully insured against any bodily injury and will hold the landowner harmless from any and all claims arising out of the Contractor’s performance of the work contemplated by this agreement. The contractor will also hold the landowner harmless for all claims against any bodily injury to any person or entity employed by the contractor.
DAMAGE TO CONTRACTOR’S PROPERTY:
3. The landowner shall not be held responsible for the acts of third parties, including trespass, theft, burglary, malicious mischief, arson or other destruction or damage, weather or natural causes, inevitable accident or human agency, to the contractor’s property or equipment; it is understood that the contractor is responsible for providing his own insurance coverage therefrom.
COMPLIANCE WITH LAWS:
4. The contractor agrees to comply with all federal, state, county and town laws regulating timber cutting, removal and transport operations. Contractor shall secure any and all permits required to conduct this operation.
DAMAGE TO IMPROVEMENTS AND FACILITIES:
5. Any damage to improvements or facilities including, but not limited to, utility lines, both public and private, roads, trails and the like caused by the contractor shall be the responsibility of the contractor and the obligation of restitution for repair of any such damage shall be understood to be wholly that of the contractor. Any damage to improvements or facilities not specifically stated herein, including, but not limited to, utility lines, both public and private, roads, trails and the like, traveling or adjacent to the property, caused by the use, accident, neglect or other act of misfeasance of the contractor, shall be the responsibility of the contractor, and if required and authorized by the damaged party, shall be immediately repaired and restored to the damaged party’s reasonable satisfaction.
SKIDDING:
6. No skidding shall be allowed on private or public lands adjacent to the sale area, but only on designated roadways on the landowner’s property.
TREES FELLED OVER PROPERTY LINE:
7. Timber unauthorizedly felled over the landowner’s property lines into adjacent property shall be pulled back to the landowner’s property by the contractor. Damage caused to the abutting property by such felling shall be rehabilitated by the contractor and all debris shall be removed by the contractor.
RELEASE OF CERTAIN CLAIMS:
8. The contractor hereby agrees to save harmless and to indemnify the landowner against any and all claims for injury to property and persons arising out of the operations of the contractor, and that this instrument will act as a release to the landowner from any and all such claims.
SUSPENSION OF OPERATIONS DUE TO WEATHER:
9. The landowner and/or contractor reserves the right to suspend cutting and skidding operations when the ground conditions are, in the landowner’s and/or contractor’s opinion, too soft. The terms of this agreement shall be extended for such a period of time equal to the period(s) of time of any such suspension.
TIMBER CUTTING AND SKIDDING:
10. Timber cutting and skidding shall be carried out by the contractor in a way and manner that minimizes damage to other timber, immature trees and timber reproduction.
ROADWAYS:
11. Upon completion of skidding operations and harvesting, the contractor shall level and backblade all skid roads, shale roads and other areas, including the landing or loading area, all storage areas and clearing that have been used by the contractor.
WORK AREAS:
12. On the completion of the contract between the landowner and the contractor, all work areas, including roads, storage areas, all trails, skidways and open areas shall be left in a neat and clean condition and clear of all debris.
DAMAGED OR BENT OVER TREES:
13. All trees three inches (3”) in diameter and over which are bent over or otherwise damaged beyond recovery must be felled or pushed down to the ground. The contractor shall use due care in felling, skidding and hauling so as to avoid unnecessary damage to young growth and other property of the landowner.
TITLE, BOUNDARY LINES AND ACCESS:
14. TITLE: The landowner warrants that the landowner has clear and unencumbered title to the stumpage subject to this contract.
BOUNDARY LINES: The landowner guarantees to have the boundaries marked with paint or other suitable means before any timber is harvested.
ACCESS: The landowner agrees to secure entry and right-of-way to the contractor on and across the area covered by this contract, including access via land owned by a third party, if necessary. The landowner shall be responsible for obtaining any easements and rights-ofway to the landowner’s property, if necessary.
WET WEATHER:
15. In the event of excessive wet weather, the landowner or the contractor may suspend the operations in order to avoid undue damage to the property. The length of the agreement shall be extended by a corresponding length of time.
SAW TIMBER:
16. If applicable, all saw timber is to be utilized to the smallest possible merchantable tip. Logging debris is to be lopped down at a height of _____________ feet. The contractor shall make the final determination.
STUMP HEIGHT:
17. Stump height shall be as low as possible; in no case shall they exceed greater than one and one half (1 ½) times the DBH (Diameter Breast Height) of the tree being harvested. In case of deep snow, stumps must be shoveled out to meet this requirement.
CARE TO BE TAKEN BY CONTRACTOR:
18. Care shall be taken by contractor in removal to prevent unnecessary damage from felling and logging market trees. All hanging or leaning trees shall be flattened or removed for firewood.
FIRE:
19. Care shall be taken at all times by the contractor and his employees against fire. Contractor must conform to all local, state and federal regulations in relation to fire precautions.
WORKMANLIKE MANNER:
20. Contractor will cause the timber to be cut in a good, workmanlike and proper manner. Contractor will comply with all local, state and federal laws and regulations regarding the handling of slash, tops, erosion, streams, power lines and roads.
NOTICE:
21. Contractor shall notify landowner or landowner’s representative at least one (1) week in advance of his intent to commence the timber harvesting operation.
LOCATION OF ACCESS ROADS AND TRAILS:
22. The contractor agrees to leave open and repair any damage to, all main access roads and major skid trails, existing or constructed, caused by contractor and to repair and maintain all roads utilized by the contractor to conduct his operation. Upon completion of the harvesting operation, leaving roads and major skid trails in good condition shall mean at minimum smoothing out of trails/roads to remove ruts and bumps and keeping roads free of any logging debris. Seeding of areas with high potential for erosion will be required. A rye grass or other soil erosion control mix shall be used with hay mulch, if necessary.
REMEDIES:
23. (a) If the landowner or contractor seek damages for breach of this contract through court proceedings, and if either party prevails in such proceeding, in whole or in part, then the nonprevailing party agrees to pay all of the prevailing party’s actual and reasonable expenses, including attorneys and expert witness fees.
(b) The landowner agrees to mitigate the damage for breach by offering the timber for resale, if the timber is saleable based upon its volume or quality.
LIABILITY AND INSURANCE:
24. It shall be understood that this contract does not create an employer-employee relationship, it being the intention and contemplation of the parties hereto that all acts performed by the contractor in carrying out the provisions hereof shall be those of an independent contractor. The contractor is an independent contractor for all purposes including Worker’ Compensation and is not an employee or agent of the landowner. The landowner agrees that the undersigned contractor, expect as otherwise specifically provided herein, shall have the sole control of the method, hours worked, time and manner of any timber cutting to be performed hereunder. The landowner reserves the right only to inspect the job site for the sole purpose of insuring that the cutting is progressing in compliance with the cutting practices established under this contract. The landowner takes no responsibility for supervision or direction of the performance of any of the harvesting to be performed by the undersigned contractor or his employees. The landowner further agrees to exercise no control over the selection and dismissal of the contractor’s employees.
REPRESENTATION BY LANDOWNER:
25. The landowner further agrees:
1. To guarantee title to the forest product covered by this contract and to defend it against all claims at his or her expense.
2. Non concurrent contract involving the area or period will be entered into by the landowner without written consent of the contractor.
3. The contractor and his employees shall have access to the area at all reasonable times and seasons for the purpose of carrying out the terms of this contract.
4. All designated trees must be cut but the contractor shall retain the right to leave felled such designated trees as he may consider not containing merchantable material worth removing from the area.
ASSIGNMENT
26. The contractor agrees not to assign this contract in whole or in part, without the written consent of the landowner, which shall not be unreasonably withheld or delayed.
MISCELLANEOUS:
27. (a) All prior understandings, agreements, representations and warrantees, oral or written, between Landowner and Contractor are merged in this contract; it completely expresses their full agreement and has been entered into after full investigation, neither party relying upon any statement made by anyone else that is not set forth in this contract.
(b) Neither this contract nor any provision thereof may be waived, changed or cancelled except in writing. This contract shall also apply to and bind the heirs, distributes, legal representatives, successors and permitted assigns of the respective parties. The parties hereby authorize their respective attorneys to agree in writing to any changes in dates and time periods provided for in this contract.
(c) Any singular word or terms herein shall also be read as in the plural and the neuter shall include the masculine and feminine gender, whenever the sense of this contract may require it.
(d) The captions in the contract are for convenience of reference only and in no way define, limit or describe the scope of the contract and shall not be considered in the interpretation of this contract or any provision hereof.
(e) This contract shall not be binding or effective until duly executed and delivered by Landowner to Contractor.
(f) Each party shall, at any time and from time to time, execute, acknowledge where appropriate and deliver such further instruments and take such other action as may be reasonable requested by the other in order to carry out the intent and purpose of this contract. This subparagraph shall survive closing.
IT IS FURTHER MUTUALLY UNDERSTOOD AND AGREED that this contract embodies the entire agreement between the parties hereto and there have not been any agreements, representations or warranties, oral or written, between the parties other than those set forth or provided for in this agreement. This agreement may not be modified or changed, in whole or part, except by written agreement signed by both parties hereto. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written.
______________________________________________________ LANDOWNER ______________________________________________________ CONTRACTOR