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HomeMy WebLinkAbout1990-085 Agrmt - Superior Lumber AGREEMENT This Agreement made and entered into this ~o day of 1990 between Superior Lumber Company, hereinafter referred to as "Superior", and the City of Ashland, a municipal corporation of the State of Oregon, hereinafter referred to as "Ashland". WITNESSETH: RECITALS 1) Superior owns certain land more particularly described in Document No. 89-25700 of the deed records of Jackson County, Oregon. 2) Ashland owns certain land located southerly of the south city limits of Ashland, part of which is known as being the "Winburn Camp Site" and the balance shall be referred to as the "Glenview lands" which is land owned by Ashland and which is below Reeder Reservoir and northerly thereof. Such Ashland land is more particularly identified on the map that is attached hereto and incorporated herein as Exhibit IIBII , 3) Superior's land is visible to the City of Ashland and is also uphill from the City and this, the logging of it affects the aesthetics and environment with a potential adverse impact upon Ashland. 4) The primary purposes of this Agreement are to abate fire hazards as to Ashland lands, accomplish the logging of the Superior land by means which will minimize as much as possible adverse impacts on the environment, and also to provide for the post-logging fuel treatment of the area by appropriate slash treatment, and abatement requirements. Thus, the parties agree to minimize the disturbance of soils so as to minimize erosion. Accordingly, the logging is to be done entirely by helicopter with absolutely no roads to be built on the Superior property nor are there to be any wheeled or tracked vehicles used on the Superior property. All means of logging of the Superior property will be such as will minimize the disturbance of the soils. To reduce visual effects, this agreement will set forth certain requirements as to the amount of timber to be left undisturbed on the Superior Land which shall include the nondisturbance of small trees and bushes to'the extent practical with Superior to use all reasonable efforts to minimize damages and disturbance. (See attached Exhibit "D", Silviculture prescription) 5) To compensate Superior for logging the Superior Land as stated, Superior is to obtain an amount of timber off of Ashland land. 6) At the conclusion of the logging, Ashland will purchase the Superior land all as more fully set forth herein. NOW, THEREFORE, in consideration of the foregoing recitals, the truth of which is hereby acknowledged, and of the mutual covenants contained herein, it is agreed by and between the parties hereto as follows: SUPERIOR'S AGREEMENTS AND OBLIGATIONS: 1) To log the Superior land in accord with the purpose and provisions contained in the recitals. 2) It is understood that Ashland will mark Superior's land with respect to the trees to be left on the land. This will be done before any logging operations and if and when Superior proceeds with logging operations, that act shall signify its approval of the way in which the trees are marked. In marking the trees, Ashland will leave -2- aPproximately 3750 net board feet per acre of cruise volume of conifer trees of 10 inches or larger in diameter breast high and for all such trees to be healthy trees and as evenly distributed as possible. This requirement applies to the 120 acres of the Superior land that is substantially forested. On all other Superior land, it shall leave all other healthy trees, whether conifer or not. Superior will make every effort to protect undesignated trees from the Superior or Ashland lands, but both parties understand that during the course of logging some additional trees may have to be removed to facilitate logging, such as danger or damaged trees and safety hazards. On the Ashland land these trees will go toward the satisfaction of the 650,000 mbf guaranteed by the City. As to the Superior land, the stumps will be marked with an "X" cut into the stump, red paint and flags. They will then be cruised by Ashland's agent and the volume will be treated as a modification to the contract. The purchase price paid to Superior for the land will be adjusted as follows: Douglas Fir $100.00/MBF net scribner scale Pine's $150.00/MBF net scribner Scale Other conifers $100.00/MBF net scribner scale 3) Superior shall take trees designated by Ashland for harvest consisting of primarily dead or dying merchantable trees from both the Winburn Camp Site and the Glenview Lands Site in the aggregate amount of no more than 650,000 board feet of merchantable trees from these two sites. Ashland will sell to Superior the pine and douglas fir and other coniferous species of merchantable trees in excess of this amount with the douglas fir to be sold for $100 per thousand board -3- feet of merchantable timber and the pine to be sold at $150 per thousand board feet of merchantable timber. 4) With respect to both the Winburn Camp Site and the Glenview land site, Superior agrees to not create any new roads nor to use any vehicles or heavy equipment on these areas other than pick-up trucks or comparable vehicles with the exception of the land use site on the Glenview land. 5) To pay all costs of any type involved in the logging not otherwise expressly covered herein. 6) To treat slash as set forth in Exhibit "C" which is attached hereto and incorporated herein. 7) The removal of timber shall be entirely Superior's responsibility, however, it, at its election may employ independent contractors to assist therewith. 8) The hours of the logging operations shall be as follows: To prevent and not allow logging trucks, loaded or unloa4ed,~ ~o be on Granite Street except between the hours of ~A.M. and 5:00 P.M. Monday through Friday and on Tolman Creek Road only between the hours of 8:00 A.M. and 5:00 P.M. Monday through Friday. To prevent and not allow helicopter operations with respect to either the Superior site or the Glenview land site except between the hours of 8:00 A.M. and 6:00 P.M. Monday through Friday. The helicopter operations with respect to the Winburn Camp Site shall be unlimited as to time. 9) Superior shall secure at Superior's expense, and keep in effect during the term of this contract, the following insurance coverages in a policy or policies issued by an insurance company or -4- companies authorized to do business in the State of Oregon. The issuing company or companies shall indicate on the insurance certificate said Ashland will be given not less than 30 days notice of any cancellation or material change or intent not to renew such policy. The coverage shall be as follows: A) PI & PD. Commercial general liability insurance covering personal injury and property damage in amount not less than $1,000,000 combined single limit per occurrence with no more than $5,000 deductible with a contractual liability to include all contracts involving the work to be performed for the contract. B) Auto. Automobile liability insurance in an amount not less than $1,000,000 combined single limit per occurrence. This coverage can be provided by combining the automobile liability protection with the commercial general liability policy. C) Broad Form "B". Loggers Broad Form coverage in an amount not less than $1,000,000 with no more than $5,000 deductible for costs of fire control, losses or damage from fire, and other causes arising or resulting from'activities of Superior, employees, contractors and others working or acting for Superior. D) Additionally Insured. The insurance policy or policies required under this section shall name Ashland and Ashland's officers, agents and employees as additional insureds. E) Certificate of Insurance. As evidence of the insurance coverage required by this contract, Superior shall furnish a certificate or certificates of insurance including all of the foregoing coverages to Ashland. -5- 10) Superior agrees to the following payments, contributions and liens. Payments, Contributions, and Liens. Under the provisions of the laws of the State of Oregon, Superior shall: A) Prompt Payments. Make payments promptly as due to all persons supplying to Superior labor or material for the prosecution of the work provided for in this contract. B) SAIF. All contributions or amounts due the Industrial Accident Fund from Superior incurred in the performance of the contract to or at Superior's request. C) Liens. Not permit any lien or claim to be filed or prosecuted against Ashland on account of any labor or material furnished. D) Employee Withholdings. Superior to pay to the Department of Revenue all sums withheld from the employees. E) Prompt Payment of Claims. If Superior fails, neglects or refuses to make prompt payment of any claim for labor or services furnished to Superior in connection with work to be done under this contract as such claim becomes due, Ashland may pay such claim to the person furnishing the labor or services and obtain reimbursement from Superior. Payment of any claim in such manner shall not relieve Superior or surety from obligation with respect to any unpaid claims. 11) To do and complete all logging operations, slash treatment and disposal, and clean-up as soon as possible. The Glenview land site is to be completed by May ~5~ 15~0, and the Winburn Camp site and the Superior site by,Tu~, 1990; however, if weather did not permit the logging operations to be completed by that time, then the time -6- periods shall be extended by an amount of time equal to the amount of delay caused by the weather. 12) To sell to Ashland the Superior land for $38,900 with this purchase price to be paid by Ashland .to Superior in cash at the close of escrow and with escrow to close as soon as possible after Superior completed all work it is obligated to do pursuant to this agreement and said work has been approved by Ashland. In that regard, the parties hereto, incorporate and agree to the earnest money receipt that is attached hereto as Exhibit "A". 13) To use only the following transportation routes for the removal of timber and for all vehicle operations that involve larger than pick-up trucks: A) The Winburn site and its logging is to be by Forest Service roads and Tolman Creek Road with the Forest Services' roads to be USFS Road #2060.200, #2060.250, #2060 and #2080. B) The Glenview land site is to use Forest Service road #2060 and Granite Street. C) The Superior site is to use Forest Service Roads and Tolman Creek Road with the Forest Service roads to be USFS road #2060 and #2080. 14) It is understood that on the Ashland land, the timber that is marked is the timber to be taken and that on the Superior land, the timber that is marked is the timber to be left. Superior agrees to thoroughly caution its agents, contractors and employees with respect to this difference. -7- 15) With respect to Superior's land, the question of what timber and slash may be left on the Superior land will be covered in the slash treatment specifications. 16) With respect to timber to be removed from Ashland's land, the following shall control: A) Specifications. Any conifer log that conforms with grading rules for peeler or sawmill grades and meets or exceeds both of the following minimum requirements: 6 inches in gross scaling diameter, containing 50 board feet (net). B) Log Length. The maximum length of any log to be removed from Ashland land is 40 feet plus one foot for trim. C) Official Rules. Log grades are defined in the Official Log Scaling and Grading Rules published by the Northwest Log Rules Advisory Group in effect at the time the logs are scaled. D) Continuous Log Load Record Forms. Ashland will provide Superior with Continuous Log Load Record forms for the purpose of recording the load number, departure date and time, species, destination, log load receipt number, and trucker each time a load is removed from the sale. This form shall be filled out completely and the time recorded prior to a load departing from the landing. These forms will be completed for each pay period by the individual in charge of loading operations as authorized by Superior. These completed forms will be turned into ashland at the completion of each pay period. A pay period is a period either from the 1st through the 15th of the month or the period from the 16th through the last day of the month. -8- E) Log Load Receipts Books. Superior shall fill out a multipart, serially numbered log load receipt in the woods for each truck leaving the landing area. Superior shall require the truck driver of each load of logs to sign the woods receipt. Superior shall staple the load receipt and sCaler receipt parts to the load as directed by Ashland and agree to require the scaler to record the log load receipt number on the scale ticket that is signed by the scaler and to attach the scaler receipt part to a copy of the scale ticket and mail to Ashland on the date scaled. (1) Receipt Book Accounting. Ashland will issue Superior sufficient books of serially numbered log load receipts to cover not over 30 days of operation as determined by Ashland. Superior shall sign a receipt for each book of receipts and be fully accountable for all serially numbered woods and scaler receipts tickets. Superior shall retain all woods receipts in the book and return to Ashland as soon as all receipts in each book have been used. Unused books, or portions of books, shall be returned to Ashland during sale inactivity over 30 days, and at the completion of timber removal from the sale area. (2) Penalty for Loss. Superior shall account for each and every serially numbered log book receipt and shall pay damages to Ashland for all log load receipts not accounted for by proof of scaling. Damages shall consist of full stumpage rate for each missing receipt, on the basis of average volume of the 10 largest loads of logs scaled from the sale area, charged at the highest species rate. (3) Log Intermingling. Superior shall not intermingle Ashland timber or logs designated by this contract with any other -9- timber or logs before scaling occurs, unless otherwise approved by Ashland. F) Log Branding. Every log removed from the timber sale area by Superior shall be branded, unless otherwise approved in writing by Ashland. Ashland may issue Superior one or more branding hammers registered to Ashland's agent. Superior shall use only those brands issued or approved by Ashland for timber sold under this contract. (1) Option to Brand and Paint. When branding of all logs is impractical because of the small size of the logs and number per load, Ashland may give written authorization for use of a combination of brands and paint. In this case, at least half of the logs shall be branded, and all logs shall be painted with a color and in a manner specified by Ashland. (2) Failure to Return Branding Hammer. If a brand registered to Ashland is issued, Superior agrees to sign receipt for those branding hammers and to return them in good condition within 14 calendar days of completion of log hauling. Superior shall pay a fee of $50 to Ashland for each branding hammer returned to Ashland in damaged and unusable condition, or $100 for each branding hammer not returned within the time specified by Ashland. 17) To not allow and to prohibit loaded logging trucks from using Granite Street except when being piloted by a vehicle provided by Ashland. Further for the operators of such logging trucks to comply with all reasonable rules and directions given by the operator of the pilot car. 18) To have all of the timber removed from Ashland's land scaled by an independent contractor. Such scaler shall be one mutually agreed upon by the parties and the cost of which shall not be paid by Ashland. Prior to any of Ashland's logs being hauled from the landing sites, Superior shall give Ashland written notice of the destination of the timber. Further, Superior will instruct the scaler or the independent scaling bureau to send copies of all scaling tickets and scaling certificates to Ashland or its designated agent. 19) To pay any and all timber severance taxes and timber harvest taxes with respect to timber removed from Superior land. 20) To acquire and pay for any and all US Forest Service removal permits that are required with respect to the Superior land. 21) Superior agrees to leave the granite pit in substantially the same condition as it was in before it was used as a staging area and to at a minimum pile the slash and later burn the slash or to remove it and to back blade the area. To use as a staging area, with respect to the timber being removed from the Glenview land site, the granite pit owned by Ashland which is just west of the extension of the southerly end of Granite Street. 22) To require any subcontractors or other independent agencies that participate in this logging operation to comply with the terms stated herein. 23) Superior shall furnish ashland with a performance bond in the amount of $25,000 and which shall guarantee complete compliance by Superior with the terms and conditions of this contract and the faithful performance of all required obligations. Bonds may be in the -11- form of surety bonds, cash deposits, assignments of surety, irrevocable letters of credit or other securities determined acceptable by Ashland. Surety bonds must be written by a surety company authorized to do business in the State of Oregon on the form approved by Ashland. 24) Superior agrees to use all reasonable efforts and means to accomplish the objectives of this agreement in a manner so as to provide protection to all City improvements including, but not limited to, power lines, power plant, water filtration plant, and the like. ASHLAND'S AGREEMENTS AND OBLIGATIONS: 1) To mark all timber to remain on Superior's land and to mark all timber to be removed from Ashland's land, with such timber to be as set forth above. 2) To pay timber severance taxes and timber harvest taxes with respect to timber removed from its lands, if any such taxes are legally required. 3) To acquire and pay for the US Forest Service Removal permits with respect to timber removed from its lands. 4) Ashland does hereby approve and agree to the terms of the earnest money receipt for the purchase of Superior's lands with such earnest money receipt being attached hereto as Exhibit "A". 5) Ashland will pay all road use fees with respect to timber taken from City owned property. MISCELLANEOUS: 1) In case of a suit or action to enforce any rights or conditions of this agreement and upon any appeal to a higher court, it is mutually agreed that the prevailing party in such suit or action -12- shall be entitled to a reasonable attorney's fee as determined by the Court as against the losing party therein. 2) Ashland, by and through its officers, agents and employees, shall have the right to go upon Superior's land at reasonable times for the purpose of inspecting the progress of the performance of this contract. 3) Before any work is commenced on the ground to perform to this contract, there shall be a meeting between representatives of Superior and the City of Ashland all for the purpose of clarifying any questions and so as to avoid any misunderstandings. At that meeting, there will again be emphasis placed upon the fact that the timber marked on Superior's land is to be left and the timber marked on Ashland's land is to be taken. IN WITNESS WHEREOF the undersigned have hereunto set their hands and seals as of the day and year first above written. CITY OF ASHLAND Catherine Golden, Mayor Nan Franklin, City Recorder R LUMBER COMPANY ,Secretary -13- EXHIBIT "A" TO AGREEMENT BETWEEN CITY OF ASHLAND AND SUPERIOR LUMBER COMPANY EARNEST MONEY RECEIPT PURCHASER: Ashland hereby agrees to purchase the land described herein which is located in the County of Jackson, State of Oregon and more particularly described in instrument no. 89-25700, being approximately 160 acres of land owned by Superior Lumber Company. TOTAL PRICE, TERMS AND INTEREST RATE: The Seller has sold to the Purchaser for the sum of THIRTY-EIGHT THOUSAND NINE HUNDRED DOLLARS ($38,900.00) and other good and valuable consideration which is more fully described in an Agreement between the parties hereto and which relates to the logging of certain lands by Superior. This sale is to be for cash at the close of escrow. EVIDENCE OF TITLE: Seller agrees to furnish at its expense a title insurance policy in the amount of the purchase price, showing clear and merchantable title in Seller, except as to the acts of the Purchaser subsequent thereto, reservations in Federal Patents, zoning ordinances, comprehensive plans and easements, conditions and restrictions, and subject to approval by Purchaser, of a preliminary title insurance report, with said approval not to be unreasonably withheld and no others. If such title insurance policy or preliminary title report does not show clear and merchantable title, Seller is allowed thirty (30) days to make it so, after notice of such defect in writing from Purchaser. ESCROW: Seller and Purchaser agree that the subject sale will be closed in Escrow at Crater Title Insurance Company, the cost of which shall be paid by the Purchaser. POSSESSION: Possession of said premises shall be tendered to Purchaser on close of escrow which shall be as soon as possible after the lands are logged as set forth in the agreement between the parties hereto. CONVEYANCE: The property is to be conveyed by a good and sufficient Warranty Deed free and clear of all liens and encumbrances except as set forth above in reference to the Title Insurance Policy. PRO-RATE TAXES, INSURANCE, ETC.: Real property taxes shall be pro-rated between the Purchaser and Seller as of the close of escrow. RISK OF LOSS ASSUMED BY SELLER: The risk of loss or damage to said premises or property by fire or other casualty passes to the Purchaser at the close of escrow. LIMITATION ON ESCROW AGENT'S DUTIES: In the event any monies or documents are deposited in escrow with Ronald L. Salter, Attorney at Law, as Escrow Agent, said Escrow Agent shall not be required to determine any controversy arising between the parties hereto, or take any action in the premises, but may await the settlement of said controversy by final appropriate legal proceedings, or otherwise, and in no event shall he be liable for interest, damages or other loss, or for anything except gross negligence or willful misconduct. ZONING STATEMENT: THIS INSTRUMENT WILL NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE SIGNING AND ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES. ATTORNEY REPRESENTATION: It is understood that Ronald L. Salter is the attorney for Purchaser and that the other parties to this transaction have the right to consult with an attorney of their own choice before signing this Agreement, and with this to be at their own expense. ATTORNEY'S FEES: In case of suit or action to enforce any rights or conditions of this Agreement and upon any appeal to a higher Court, it is mutually agreed that the prevailing party in such suit or action shall be entitled to a reasonable attorney's fee as determined by the Court as against the losing party therein. EXHIBIT "' B" 47 2061 I line nei /I, :.,,, I\ W ! NBUI~N S I 'l"r--~ EXHIBIT "C" TO AGREEMENT BETWEEN SUPERIOR LUMBER COMPANY AND THE CITY OF ASHLAND SLASH TREATMENT AND STREAM CLEANING Superior is to perform and comply with the following: Watercourse Protection Zones. Superior shall perform all measures necessary to protect the springs, water pipes, stream banks, stream bed and vegetation within the water course protection zones marked on the ground. These zones are flagged on the ground with blue and white striped flagging and "watercourse and lake protection zones" printed no the flagging. These zones are shown on Exhibit "B" (A) Watercourse and Lake Zones Protection Measures. Necessary measure to protect the areas include but are not limited to the following: (1) Fall Trees Away from Zone. Fell adjacent trees and snags away from or parallel to the zones to prevent them from entered the buffer strip. (2) Fall Marked Trees Only. Fell only those trees inside the zone which are marked with paint. As much as is reasonably possible, fell trees shall not cross or enter the stream or lake. (B) Watercourse and Lake Cleaning. Superior shall comply with the following instructions for removal of debris that enters streams or the lake as result of Superior's operations: (1) Specifications. Debris shall be cleared up to the high water mark on all streams and the lake. All removed debris shall be placed in a stable location above the high water mark. (2) Daily Removal. Debris entered Class I streams shall be removed by the end of operations each day, unless an alternate practice is approved by Ashland. (3) Removal Specifications. Debris more than 6 inches in diameter on the small end and more than 10 feet in length shall be removed from Class II streams concurrently with yarding. Other debris shall be removed at the completion of yarding. Slash lreatment~. These provisions shall be the obligation of Superior and sha~l apply to both Ashland land and Superior land. Slash is defined as all debris resulting from logging operations, construction of roads or other improvements. All such work shall be completed by Superior to the reasonable satisfaction of the City of Ashland as determined by its Forestry Agent who shall make such judgments in the reasonable exercise of forestry rules and practices. (1) With respect to areas within 50 ~eet on either side of any forestry service roads or other public roads, Superior shall 100 percent hand pile all the slash debris within said 50 foot area on either side of the road and as measured on the slope of the ground. This shall apply only to debris created by Superior in the logging operation. (2) With respect to all other areas on Ashland or Superior land, Superior will lop and scatter with developed slash generally not over 30 inches above the ground. Exhibit "D" S.O.S.C. MOUNTAIN FIR PROPERTY (160 ACRES) SILVICULTURAL PRESCRIPTION: I. Description of Land: Property consists of 160 acres of forest land, of which approximately 120 acres is small merchantable mixed-conifer trees, and about 40 cres is non-merchantable conifer saplings and/or brush. Average slope of the hillside is 50%, and soils are moderately unstable. The land is about 1 mile south of the City of Ashland. II. Objectives: 1) Harvest merchantable conifers from the 120 forested acres, giving preference to Douglas Fir species. 2) Abate the existing forest fire hazard by thinning out the existing very dense pole stand. 3) Minimize adverse visual impact to City of Ashland residents and visitors. 4) Minimize disturbance of the moderately unstable soils. 5) Leave a healthy forest cover in areas of timber harvest. Land is to be purchased by City of Ashland when harvest is completed. III. Methods: 1) Make no entry or disturbance in 40 acres not containing merchantable conifer trees. 2) In the 120 acres of merchantable forest, leave all trees less than 10: DBH. Mark approximately 3,750 net board feet Scribner volume/acre of healthy conifer trees as "leave trees" under the standards of the U.S. Bureau of Land Management conifer specifications. Mark "leave trees" in a generally even distribution patter. 3) Make every effort to protect "leave trees" during falling operations. 4) Use helicopter to fly tree-length stems to central landing. Build no roads. 5) Treat slash to meet State guidelines. TREE MARKING GUIDELINES I. Objectives: 1) City of Ashland - To receive, after thinning, a healthy stand of timber, with reduced forest fire hazard, retained soil stability, and a moderate forest cover so viewed from the city. 2) Superior Lumber Co.- To harvest maximum amount of conifer trees suitable for production of Douglas Fir lumber, while still achieving the objectives of the city of Ashland. 3) General - Mark healthy conifers, at least 10" DBH, as "leave trees" to equal approximately 3,750 bf/acre of net Scribner (32') volume, in a generally even spacing scheme. Trees to be marked with paint above and below stump height. II. Leave Tree Selection Guidelines: 1) L~ave trees should be selected to approximate the required mbf/spacing indicated in the table below. Periodic sampling should be done during marking to verify the objective is being achieved. SPECIES D. FIR P. PINE ~P. PINE-BG iAVG. NET VOLUME ~ AVG. ~ #AVERAGE TREES/~ SPACING BETWEEN I PER TREE I DBH I ACRE TO MARK* Ii AVG. TREES* 62 bf I 14" I 60 T.P.H. 27' 540 Df I 27" I 7 T.P.H. I 79' 75 bf I 12" I 48 T.P.H. I 30' 71 bf I 15" I 53 T.P.H. I 29' 373 bf I~ 25" ~1 10 T.P.H. ~1 66' 2) Leave trees should be healthy, they should not show signs of obvious decay of the pole. They should not have brown or chlorotic crown foliage. They may be crooked, or bowed, or any shape in nature,.but they should not have any obvious openings in the bark through which decay has or will enter. 3) Leave tree composition should reflect a cross-section of the species and DBH-range present in the unthinned stand. 4) When given a choice of healthy trees to select from to approximate the same desired mbf/acre and spacing goals, use the following "Rules of Thumb": a) Mark trees that are less preferable for lumber production (i.e. trees with sweep, crook or oversized knots may be "leave trees", if not showing incipient decay). b) Mark pine "leave trees" before fire, though not exclusively. c) Mark trees over 22" DBH, when practical.