CONTRACT CHANGES: EXTENSIONS, MODIFICATIONS, SUSPENSIONS, CANCELLATIONS, DELAYS, AND DEFAULT
PROVISION
Section 1510. Causes Beyond Control. Neither party of this Contract shall be held responsible for delay or default caused by fire, riot, acts of God, sovereign, public enemy, and/or war which is beyond that party's control. STATE may terminate this Contract upon written notice after determining such delay or default will reasonably prevent successful performance of the Contract.
In the event a cause or causes beyond the control of PURCHASER impact PURCHASER’s ability to continue to perform under this Contract, STATE may grant a reasonable extension of time but shall not additionally compensate PURCHASER.
Rev. 12/03
INTENT/EXPLANATION
The definition of "causes beyond control" of the Purchaser is contained in this section. These causes are recognized as factors which may prevent the Purchaser from performing certain obligations including the completion of the contract by the termination date.
This section gives State authority to terminate the contract if State determines the delay or default will prevent successful performance. State may grant an extension but will not be responsible for additional payment or damages to Purchaser.
POLICY REFERENCES
Directive 3-4-3-330 - Contract Duration and Extension.
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GUIDANCE FOR ADMINISTERING THE PROVISION
All requests for extensions of time must be made in writing by the Purchaser. If the District receives a written request from the Purchaser, it should immediately notify the Asset Management Unit and forward the request to them. The Contract Administrator should then work with the Unit Forester and Assistant District Forester or District Forester to determine the legitimacy of the extension request. The District provides their recommendation to the Asset Management Unit, who will then seek concurrence from the State Forest Division Chief. Contract Administrators may also need to consult with the Staff Biological Specialist to confirm that T&E survey coverage is sufficient to permit extension of operations when timber felling is part of the extension.
Unit Foresters should work with their assigned Contract Administrator to ensure that reasonable completion timelines are filled out and adhered to in the approved Operations Plan. This will help in reducing the likelihood of an extension request for reasons other than those beyond the control of the Purchaser.
The Contract Administrator should be familiar with the factors considered to be causes beyond the control of the Purchaser, and with the standards in the directive referenced above. These factors are clearly identified in Section1510. Poor market or economic conditions are not recognized as causes beyond control of Purchaser and are not considered as legitimate reasons for non-performance of the contract.
Extension requests should be considered very carefully and should only be granted for causes that are truly beyond the control of the Purchaser, or when there are compelling reasons why it is in the best interests of the State to grant the extension. If a Purchaser did not diligently work to complete the removal of designated timber or project work throughout the life of the contract and have left themselves an unreasonable amount of time to complete such work, then an extension should not be granted due to normal weather events (i.e. fall rains, average winter snowfall, etc.). Contract Administrators should be completing weekly inspectionreports that document the Purchaser’s progress in implementing the approved Operations Plan and overall progress towards completing the work required by the contract. These inspection reports will likely be referred to when considering an extension request.
The State has the discretion to determine whether or for how long to grant an extension. It may be a breach of the contract on the part of State not to consider a requested extension.
Causes beyond the control of the Purchaser should be thoroughly documented by the Contract Administrator for future reference in the event that an adjustment or extension of the contract is requested by the Purchaser.
The Asset Management Unit in Salem maintains a reference file of recent extension requests and the resulting denials or approvals, including the rationale for the decision. Contract Administrators should review this file periodically, or when a request is received from a Purchaser, to become familiar with recent decisions and interpretations of the terms “Causes beyond control of Purchaser” and “Best interest of State”. This file can be accessed with the following link:
(Insert web link to directory of recent extension request letters.)
APPROVAL AUTHORITIES
Chief of State Forests must sign any modifications, adjustments or extensions of contracts over $25,000 in value.
WHO TO CALL
Contracts Team Leader.
TRAINING METHODS
Classroom module with assistance from AG and Asset Management Unit staff.
PROVISION
Section 1520. Cooperation With Species Protection Efforts. STATE is engaged in an active threatened and endangered species (T&E) survey program. As part of the survey program, ODF surveys its lands on a continuing basis for land management, species protection, research and other reasons. Surveying efforts may take place in the Timber Sale Area any time during the term of the Contract. PURCHASER acknowledges that T&E survey work and/or the discovery of a threatened or endangered species within or in the vicinity of the Timber Sale Area may affect PURCHASER’s Operations under the Contract, and PURCHASER agrees to cooperate with STATE’s survey work and other activities designed to identify and protect threatened and endangered species. In the event a threatened or endangered species is found within or near the Area(s) of Operations, PURCHASER agrees that STATE may take steps necessary to protect the interests of the State, including restrictions on Operations due to T&E species considerations, Contract modification, suspension or termination. PURCHASER’s agreement under this Section is in addition to and shall not relieve PURCHASER of its obligation to comply with all federal and STATE laws, including the Endangered Species Act, governing threatened and endangered species.
Rev. 12/03
INTENT/EXPLANATION
This section gives State authority to survey for threatened and endangered species on the timber sale area and acknowledges that the discovery of any T&E species may affect the Purchaser’s operation. It further acknowledges that the Purchaser will cooperate with State’s survey and protection efforts.
POLICY REFERENCES
Northern Spotted Owl Operational Policies
State Forests Program Bulletin “Northern Spotted Owl Sighting in Vicinity of Sold Timber Sales” contains standards and guidance for addressing the situation where new NSO is discovered.
State Forests Program Marbled Murrelet Operational Policies
State Forests Program Bulletin “Marbled Murrelet Sighting in Vicinity of Sold Timber Sales” contains standards and guidance for addressing the situation where new MAMU is discovered.
GUIDANCE FOR ADMINISTERING THE PROVISION
If T&E species are discovered in or adjacent to sold sales (see the appropriate technical bulletin for the specified distances) then the Contract Administrator should work with the Unit Forester to notify the Purchaser in accordance with the appropriate bulletin referenced above.
There are usually a range of options in each situation where a new T&E species presence is established. If possible, prior to issuing a suspension of operations, available options should be explored with the Area Biologist and reviewed with the State Forests Program Staff Biologist to ensure compliance with Program T&E policies.
APPROVAL AUTHORITIES
The District Forester (or designee) must verbally notify the Purchaser that a T&E species has the potential to affect the sale. The District Forester must notify the Purchaser in writing to temporarily suspend operations.
The Asset Unit Manager will send a letter to the Purchaser confirming a temporary halt to operations while ODF assesses the new information, per Section 1570.
WHO TO CALL
Area Biologist (NWOA or SOA) and Contracts Team Leader.
TRAINING METHODS
Classroom module with assistance from Area and/or Program Biologist and Asset Management Unit.
PROVISION
Section 1530. Extension of Time. STATE may extend the time for performance of this Contract upon written request from PURCHASER or at STATE's discretion. A request for extension:
- shall be accompanied by the written consent to an extension of the security by PURCHASER's surety;
- shall state the date to which the extension is desired, the Area of Operations to be affected, and the reason(s) for the extension; and
- must be received by STATE no later than thirty (30) days prior to the expiration date of this Contract unless the need for extension occurred within the thirty (30) days prior to the expiration date, in which case the request must be received prior to the expiration date.
Requests for extension will not be granted solely due to changes in timber market conditions. STATE shall grant a request for an extension only when it determines that extension would be in the best interests of STATE [CSL: and consistent with STATE's fiduciary responsibility to the Common School Fund]. In no event shall an extension exceed one year.
When STATE grants a request for extension, it may condition that grant upon any condition it determines is necessary to protect the interests of the STATE. Such conditions may include, but may not be limited to, the following:
(a)Payment at time of extension of the full amount of the unpaid balance of the Total Purchase Price. In the case of scale or weight sales, such payment shall be an advance deposit, based on remaining volume, as estimated by STATE.
(b)If PURCHASER is not otherwise in arrears in required payments, STATE may grant additional time for payment of the unpaid balance on the condition that PURCHASER make installment payments based on removal of Designated Timber as required by Section1750, "Payment Schedule," of this Contract, plus interest on all payments received after the original expiration date.
(c)Completion of designated requirements of this Contract, such as fire trail construction, Snag felling, Slash preparation Operations on logged portions of the Timber Sale Area, and road construction or maintenance.
(d)Payment of an extension fee in an amount determined by STATE (not less than $50). Such fee shall be based upon the loss of production, extra reforestation costs, brush control costs, Slash disposal costs, or other costs which may be caused by the extension.
(e)Waiver of full payment, or payment of interest on the unpaid balance of the Total Purchase Price, if STATE determines that extenuating circumstances warrant waiver or waiver is otherwise in the best interests of STATE.
(f)PURCHASER-funded T&E species surveys by STATE-approved surveyors. STATE may require that Operations on the Timber Sale Area be suspended during the survey season until the completion of surveys, in order to ensure a valid survey. The survey season begins March 15 and ends August 31, or upon completion of survey visits, annually.
Rev. 10/04
INTENT/EXPLANATION
This section provides that an extension of time not to exceed one year may be granted when it is in the best interest of the State, and for any reason other than market conditions. The Purchaser must apply for an extension in writing not later than 30 days from expiration date stipulating the date to which the extension is desired.
State may attach conditions to the extension such as payment of the unpaid receivable, interest or other reasons.
POLICY REFERENCES
Directive 3-4-3-330 - Contract Duration and Extension.
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GUIDANCE FOR ADMINISTERING THE PROVISION
The language of Section 1510, Causes Beyond Control, is fundamental to proper administration of this provision. Prior to considering an extension request, both sections should be carefully reviewed.
Upon receipt of a written request from the Purchaser for an extension of time, the administrator should process the request as follows:
- Determine if the request was submitted within the specified time limit of not less than 30 days prior to the expiration date, unless the cause for delay occurred within the 30 days prior to expiration.
- Determine if the Purchaser's reasons for requesting the extension are valid. Refer to Directive 3-4-3-330 for guidance in determining valid and non-valid reasons for granting extensions.
- Determine if the additional time requested by the Purchaser is reasonable.
- Prepare a recommendation, using form 343-300, either for or against granting an extension based upon all the available information concerning the Purchaser's performance and any factors affecting their operations. If an extension is recommended, include appropriate extension conditions or penalty recommendations. Submit the recommendation through the appropriate channels to the Asset Management Unit. Extensions must be approved by the Chief of State Forests.
Causes beyond control of Purchaser are defined in Section 1510 of the contract and in Directive 3-4-3-330. Poor market conditions and bad economic periods, while not conditions the Purchaser can control, are not considered valid reasons for granting extensions. Under certain circumstances extensions may be granted which are considered to be in the best interest of the State. Examples might include the following:
- All logging has been completed except for a week or two of yarding and hauling.
- The best timber in a sale has been removed and it is doubtful that State could sell the remaining timber, at least not at the original sale price.
- The sale is priority salvage and time is of the essence in getting the timber removed.
- Inadvertently, less time was allowed for the timber sale than should have been.
- The sale considerably overruns the estimated volume and the Purchaser has made a reasonable effort to complete the sale on time.
Special consideration may be given for removal of decked logs after the expiration date of timber sale contracts. For cash sales which have been paid for but have expired, Purchasers may be issued a Special Use Permit which will allow removal of decked logs after the expiration date with no penalty or additional payment. Since the Purchaser has paid for the logs, they may be given a reasonable amount of time to remove them if they have been unable to haul them during the regular sale period. In the most frequent situation, the Purchaser has decked logs along dirt roads which cannot be removed because of adverse weather conditions.
For recovery sales, the above procedure may only be used if the decked logs have been scaled and paid for prior to the expiration date of the contract. Otherwise, the contract must be extended if the Purchaser is to be allowed to remove the decked logs past the termination date of the contract.
There is a difference between the granting of extensions for project work, within the term of the contract, and the granting of extensions of contract completion dates. Considerable latitude exists for extending the completion dates for project work, although Section 1540does define such extensions as a contract modification. The primary purpose for establishing project completion dates is to coordinate time schedules with other planned activities. If extensions of time for completion of project work will not affect other scheduled work, such extensions will be usually granted through a contract modification.
A contract modification to extend a project completion date should contain a provision that extending the project completion datewill not be considered as the basis for granting a contract extension at a later time.
Section 1120 indicates the Purchaser may be required to perform work after the expiration date. This work could be disposal of slash, site preparation, snag creation, stream clearance, road maintenance, etc. In order to allow this work to be conducted beyond the expiration date without a formal extension, the Contract Administrator shall:
- Prior to the expiration date of the contract, notify the Asset Management Unit with a Timber Sale Status Report, of the work remaining to be done and the date, or dates, by which the work is to be completed.
- The Asset Management Unit will notify the Purchaser of the work to be done and the completion dates by certified mail. Copies of the letter will be sent to the Purchaser's bonding company or surety, the Area office and the District office. If the work is not completed as required by the date specified in the certified letter, State may do the work or have it done and bill the Purchaser or collect costs from Purchaser's bond.
Under no circumstances should a Contract Administrator allow logging operations to continue after the termination date without a formal extension.
Contract Administrators need to recognize the importance of documenting information relative to timber sale operations. The basis for determining whether or not a Purchaser has made a reasonable effort to complete a timber sale on time will be the information contained in Inspection Reports, Important Notices, Status Reports, and the administrators log. Any significant activity should be recorded for future reference in the event a request for an extension is submitted by the Purchaser. Contract Administrators should regularly check the Purchaser’s progress against what was specified in their completion timeline on the timber sale Operations Plan.