Fs-2400-0076 Pre-award Waiver, Release, And Limitation Of Liability A

Pre-Award Waiver, Release, and Limitation of Liability Agreement
(Timber Sales or Stewardship Contract)
Ref FSM 2432.31b
Purchaser

FS-2400-0076 (REV. 04/2013)
OMB 0596-0225 (EXP. 05/2014)

Contractor

This PRE-AWARD WAIVER, RELEASE, AND LIMITATION OF LIABILITY AGREEMENT ("Agreement") is entered into as of
this
day of
,
between the U.S. Forest Service ("Forest Service") and
(" Purchaser ") (together sometimes referred to herein as the "Parties").
Recitals
WHEREAS, on or about
contract to operate the
WHEREAS, the Parties recognize that the

, the Forest Service declared Purchaser to be the apparent high-bidder on the
Timber Sale , located on

National Forest;

Timber Sale may be affected by existing and/or threatened

litigation ("Litigation") and that, due to such Litigation, the Contracting Officer may instruct Purchaser to delay or suspend
operations, and/or modify or terminate the contract for the
Timber Sale ; and
WHEREAS, Purchaser desires the Forest Service to proceed with the award of the contract, despite the possibility that the
Forest Service might delay or suspend operations, and/or modify or terminate the contract;
Terms and Conditions
1. Contract Award. After the Parties' execution of this Agreement, the Contracting Officer shall promptly award the contract
Timber Sale to Purchaser, if Purchaser has met all the eligibility requirements for contract award.
for the
2. Release of Claims. Except as provided in Paragraph Three, Purchaser agrees to waive and release any and all claims
against the Forest Service, Department of Agriculture, and/or United States (collectively the "Government") based in whole or
in part upon any instruction issued by the Contracting Officer to delay or suspend operations, and/or modify or terminate the
Timber Sale because of Litigation. Purchaser agrees that the foregoing waiver and
contract for the
release includes, but is not limited to, any claim based in whole or in part upon (a) any finding that the Forest Service failed to
comply with environmental laws, regulations, rules, and/or policy; (b) any express or implied contractual warranty regarding the
availability of timber for harvest; or (c) any express or implied contractual duty to cooperate and not to hinder Purchaser's
performance.
3. Purchaser's Remedies. In the event that the Contracting Officer instructs Purchaser to delay or suspend operations,
and/or modify or terminate the contract because of Litigation, Purchaser shall be entitled to the remedies set forth in the
Timber Sale contract, except as provided in Paragraph Four.
4. Limitation of Liability. In the event that the Contracting Officer instructs Purchaser to delay or suspend operations, and/
or modify or terminate the contract because of Litigation, Purchaser shall not be entitled to any kind of breach damages,
reliance damages, restitution damages, consequential damages, or special damages, except as specifically allowed in the
contract. Moreover, Purchaser shall not be entitled to the following contract remedies set forth in provisions B/BT8.341 and
B/BT8.342: 1) replacement volume, and 2) liquidated damages. Nor shall Purchaser have the right to unilaterally terminate
the contract under provision B/BT8.341,unless the duration of the delay or suspension exceeds either six months of Normal
Operating Season time or one calendar year.
Timber Sale,
5. Merger. Upon the Parties' execution of the contract for the
this Agreement
shall become part of such contract as an addendum thereto. Should there be a conflict between the terms of this Agreement
and the terms of the original contract, the terms of this Agreement shall govern. The Parties' subsequent execution of the
contract for the
Timber Sale shall not in any way affect the waiver, release, and limitation of liability,
Purchaser
contained herein. Should
assign or otherwise transfer contract-performance duties to a third-party, this Agreement
shall be binding on the subsequent contract holder and/or operator.
6. Purchaser's Affirmation. By executing this Agreement, Purchaser affirms that it has freely and knowingly agreed to the
foregoing waiver, release, and limitation of liability. Moreover, Purchaser affirms that the Timber Sale contract award by the
Forest Service, which might have been delayed or withheld, constitutes adequate consideration for the foregoing waiver,
release, and limitation of liability.
7. Choice of law. This agreement shall be governed by the laws of the United States and federal common law without
regard to conflicts of laws.
8. Severability. In the event that a tribunal of competent jurisdiction invalidates any part of this Agreement, the Parties
agree that such part shall be severed and that the remaining parts shall continue in full force and effect.
File Code: 2450

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FS-2400-0076 (REV. 04/2013)
OMB 0596-0225 (EXP. 05/2014)

Terms and Conditions Continued
9. Jurisdiction. The Parties expressly agree that the United States Court of Federal Claims and the U.S. Civilian Board of
Contract Appeals shall have jurisdiction over this Agreement and hereby consent to the jurisdiction of such bodies. The
foregoing agreement and consent shall not be construed to interfere with or defeat the proper jurisdiction of other courts.
IN WITNESS WHEREOF, the Parties hereto have executed this agreement.
USDA, Forest Service
Contracting Officer

By:
Name of Approving Official

I,

Signature of Approving Official

Title of Approving Official

, certify that I have full authority to represent the interests of

, and that my signature above binds

Purchaser

to this agreement.
Purchaser

By:
Purchaser Representative

Duly authorized

Signature of Purchaser Representative

Title

Title of Purchaser Representative

Date

CORPORATE
SEAL

If the corporation has no corporate seal that fact shall be stated, in which case a scroll or
adhesive seal shall follow the corporate name.

FS-2400-0076: Public burden for this collection is estimated to be 0.5 hours per response, including time for reviewing
instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the
collection of information. Under the Paperwork Reduction Act of 1995, an agency shall not conduct or sponsor, and no
persons are required to respond to, a collection of information unless it displays a valid OMB control number.
File Code: 2450

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