Form 2400-005 - Timber Sales Contract Template (Page 2 of 8) in pdf

5. PERFORMANCE; PERFORMANCE BOND; LIQUIDATED OR ACTUAL DAMAGES; FUTURE

CONTRACTS.

A performance bond in the Seller’s favor in the amount of $________________ , in cash, by surety bond,

or in any other form accepted by the Seller, shall be submitted by the Purchaser no later than _________ to

be retained by the Seller to assure full and complete performance of the Contract by the Purchaser to the

Seller's satisfaction. Failure to submit the bond will be considered a breach of this Contract and subject the

Purchaser to liability for damages. The Purchaser agrees that the bond shall be forfeited to the Seller as

liquidated damages upon the Seller's determination a condition or term of this Contract has been breached

by the Purchaser, unless the Seller chooses and can reasonably determine the actual damages suffered as a

result of the breach of the Contract. Damages assessed under this Contract are the responsibility of the

Purchaser and may be deducted from this performance bond and otherwise collected by the Seller.

b. The Purchaser agrees that the performance bond may be retained by the Seller until all performance under

this Contract has been completed to the Seller's satisfaction and the Seller determines the performance has

been so completed. If the Seller determines the performance has not been completed satisfactorily and in

conformance with this Contract, the performance bond may be retained by the Seller until the Seller can

determine damages caused by the lack of performance. If damages exceed the amount of the performance

bond, the Seller may retain any prepaid stumpage up to the amount of calculated damages, at the Seller’s

discretion. If damages exceed the amount of the performance bond, the Seller may bill and seek damages

from the Purchaser, in equity or in law, for the amount of calculated damages in excess of the performance

bond, at the Seller’s discretion. Only in the event the Purchaser provides written notice of sale completion

to the Seller shall the Seller have sixty (60) days to determine that performance has been completed as

required under this Contract.

If timber or other forest products not specifically described in this Contract or designated by the Seller for

cutting are cut, damaged or removed by the Purchaser, the Seller may pursue any and all remedies for the

unlawful use of the Seller's property and the cutting, damage or removal of property without consent,

including the seeking of criminal or civil charges for theft, timber theft or criminal damage to property in

addition to its Contract remedies for breach.

d. The Seller may, when it deems it reasonable and in the best interest of the Seller, allow the Purchaser to

continue performance under the Contract and the Purchaser shall pay as liquidated damages double the mill

value as determined by the Seller for the timber or other forest products cut, removed or damaged without

authorization under or in violation of this Contract. The Seller's permission to continue cutting shall not be

considered a waiver of breach nor prevent it from considering such breach for purposes of asserting any

other remedies available to it. It is agreed that the double mill scale sum is a reasonable estimate of the

probable damages suffered by the Seller and shall not be construed as or held to be in the nature of a

penalty.

The Purchaser agrees that if the timber identified in this Contract for cutting is to be resold due to a breach

of this Contract, as determined by the Seller, the Seller is not obligated to give oral or written notice to the

Purchaser of the resale.

The Seller's damages upon the Purchaser's failure to perform this Contract include, but are not limited to:

(1) The Purchaser's bid value of timber not cut and removed under this Contract.

(2) Double the mill value, as determined by the Seller, for timber cut, removed or damaged without

authorization under or in violation of this Contract.

(3) All costs of sale area cleanup, restoration or completion of performance not completed by the

Purchaser.

(4) All costs of resale of timber not cut and removed as required under this Contract.

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Form 2400-005 - Timber Sales Contract Template Page 2

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