 |
|||||
 |
 |
 |
 |
 |
|
|
|||||
|
|
|||||
|
|
|
|
|
|
|
|||||
|
|
Ministry |
Forest Seedling |
______________________________________________________________________________
FOREST SEEDLING PRODUCTION CONTRACT
Contract: _________
THIS AGREEMENT made as of the ____ day of ________________.
BETWEEN: HER MAJESTY THE QUEEN in Right of the Province of British Columbia
represented by the Director of Forest Enterprises Branch, Ministry of Forests
(the "Ministry"), Victoria, British Columbia (the "Director, Forest Enterprises
Branch")
OF THE FIRST PART
AND:
(the "Contractor")
OF THE SECOND PART
WHEREAS the Contractor has agreed with the Director, Forest Enterprises Branch to culture,
maintain and grow forest tree seedlings from the seed owned by the Ministry of Forests
in accordance with this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of mutual
exchange by the parties, including that for payments to be made by the Director, Forest
Enterprises Branch to the Contractor the parties agree as follows:
DEFINITIONS
1. In this Agreement:
(a) "Ministry Officer" means the person designated by the Director, Forest
Enterprises Branch for the purpose of administering this Agreement;
(b) "Number of Trees Allotted" means the number of seedlings requested as specified
in Schedule A;
(c) "Price per Seedling" means the "Unit Price" specified in Schedule A;
(d) "Seedlings" means forest tree seedlings;
(e) "Seedlot" means a unique identifier of a pool of genetic material;
(f) "Sowing" means sowing seed to produce seedlings;
(g) "Sowing Date" means the latest date specified in the Schedule A by which the
crop must be sown.
(h) "Transplant Date" means the latest date specified in the Schedule A by which the
crop must be transplanted;
(i) "First Crop Year" means the calendar year in which the Sowing Date Occurs;
(j) "Second Crop Year" means the calendar year following the First Crop Year;
(k) "Seedling Request Key" means a unique identifier of a seedling order;
(l) "Specifications" means the specifications to which crops must be grown listed in Schedule A;
(m) "Period of Delivery" means the "Period of Delivery" specified in
Schedule A;
(n) "Lifting Window" means when seedlings are in a physiological state for
planting or cold storage as determined by the Director, Forest Enterprises Branch; and
(o) "Delivery" means removal of seedlings from the Nursery property, nursery
grounds and or nursery gate.
TERM OF CONTRACT
2. The Term of this agreement shall commence on the date first above written and expires
on the latter of the following dates (the "Term"): the date that Ministry takes delivery of
and accepts the contracted Seedlings; or the date that all obligations are fulfilled by the
contractor to the satisfaction of the Director, Forest Enterprises Branch.
DESCRIPTION OF WORK
3. The Contractor shall complete the contract in accordance with the quantities, species,
stock types and age classes specified in the Schedule A and deliver the required number
of Seedlings to the Director, Forest Enterprises Branch in accordance with the Period
of Delivery and the provisions of this Agreement.
LOCATION OF WORK
4. The Contractor's obligations under this Agreement shall be carried out at the nursery
commonly known as ________________________________
SPECIES AND STOCK TYPE AND CONTRACT VOLUME
5. Contract amendments in respect of species, stock-type and volume, or any one or more of
those specifications are subject to section 27 of this contract.
SCHEDULES
6(1) The Director, Forest Enterprises Branch shall deliver to the Contractor a Schedule A,
substantially in the form attached to this Agreement as Schedule A, specifying the
following information by species, stock type and age class:
(a) the Number of Trees Allotted;
(b) the Period of Delivery;
(c) the Latest Sowing Date;
(d) the Stock Type Designation;
(e) the Transplant Date
(f) the Seedling Stock Specifications;
(g) the Price per Seedling; and
(h) notwithstanding section 27, such other specifications, terms and conditions as may
be determined by the Director, Forest Enterprises Branch.
(2) Schedules A and B form part of this Agreement as if set out at length in the body of this
Agreement.
GROWING, PACKAGING, AND DELIVERY
7(1) The Director, Forest Enterprises Branch shall supply the necessary seeds of the specified
provenance to produce the number of Seedlings specified in section 3 and Schedule A.
(2) Except as expressly provided in this Agreement, title to and property in all
Seedlings referred to in this Agreement shall remain that of the Ministry.
8. The Contractor at its own expense shall:
(a) complete the sowing not later than the Sowing Dates noted in Schedule A;
(b) provide all necessary materials for and carry out all aspects of the culture,
maintenance and growing the Seedlings;
(c) lift and package the Seedlings in packaging materials as specified by the Director,
Forest Enterprises Branch, with equipment and in a manner specified by the Director,
Forest Enterprises Branch, as suitable for maintaining the Specifications;
(d) mark shipping containers with the species, stock type, age class, seedlot number,
Request Key number, number of Seedlings in the shipping container, and
pesticide use notification specified in Schedule B;
(e) maintain the lifted and packaged seedlings in a dry, cool environment acceptable
to the Director, Forest Enterprises Branch until such time as the Director,
Forest Enterprises Branch takes delivery of them; and
(f) provide the Director, Forest Enterprises Branch with those services necessary to
fulfill its obligations under this Agreement.
9. The Contractor shall, by the Period of Delivery, deliver to the Director, Forest Enterprises
Branch Seedlings that:
(a) match the quantities, species, stock types and age classes specified in Schedule A;
(b) are free of any diseases, pests, chlorosis, contaminants or mechanical damage;
(c) are in a morphological and physiological condition which is acceptable to the
Director, Forest Enterprises Branch;
(d) are of a size which is not less than the minimum or greater than the maximum
specified in Schedule A; and
(e) are treated only with pesticides approved for use on Seedlings in British
Columbia as specified in Schedule B.
10. The Contractor shall deliver the Seedlings meeting the Specifications, f.o.b. the nursery gate.
The Ministry shall incur all shipping costs from the nursery gate.
11. Risk
(1) The Contractor shall be responsible for damage to Seed and Seedlings
until the Director, Forest Enterprises Branch takes delivery of them.
(2) The Nursery is responsible, until delivery, to maintain the quality and the viability
of Seed and Seedlings (including packaged Seedlings) on the Nursery grounds.
(3) If, at any time prior to delivery under section 10, pests, disease or contaminants
which, in the sole discretion of the Director, Forest Enterprises Branch, pose a
threat to the integrity, viability or utility of the Seedlings or
accompanying planting medium are reported to the Director, Forest Enterprises
Branch or Agriculture Canada, or if Agriculture Canada makes an order with
respect to the transportation or disposition of the Seedlings, the Contractor
will comply with the terms of the Director, Forest Enterprises Branch or
Agriculture Canada's directions or orders concerning treatment, transportation
or disposition of the Seedlings and any costs associated with such compliance
shall be borne solely by the Contractor without right of compensation from the
Director, Forest Enterprises Branch.
(4) Where, following delivery, it is discovered that the Seedlings were damaged
or their utility impaired in any manner, including through mispackaging, the
Director, Forest Enterprises Branch may exercise any or all powers to reject the
Seedlings or to adjust the price paid, that he possessed prior to such delivery.
REPORTING
12. The Contractor shall, upon request, submit to the Director, Forest Enterprises Branch:
(a) Seedling samples, labelled and identified as required by the Director, Forest
Enterprises Branch, of up to one-half of one percent of the species, and quantities
specified in Schedule A; and
(b) reports, electronic files or both setting forth details and information required by
the Director, Forest Enterprises Branch regarding the quality and the quantities of
the Seedlings.
13. At the Period of Delivery, the Contractor shall provide the Director, Forest Enterprises
Branch with a complete and itemized record of pesticide applications, including
chemicals, rates and dates of application.
14(1) The Contractor shall complete and submit to the Director, Forest Enterprises Branch,
Seedling inventories acceptable to the Ministry Officer on:
(a) May 31 of the First Crop Year, where applicable; (b) July 31 of the First Crop Year, where applicable; (c) September 30 of the First Crop Year, where applicable; or (d) October 31 of the First Crop Year, for Vancouver region requests, where (e) May 31 of the Second Crop Year, where applicable; and (f) September 30 of the Second Crop Year, where applicable.
applicable
(2) The Contractor shall complete the Seedling inventories during the 15 days preceding the
dates specified in section 14(1).
15. With each shipment of Seedlings, the Contractor shall provide the Director,
Forest Enterprises Branch, in a format specified by the Director, Forest Enterprises
Branch, invoices showing numbers of Seedlings by Seedling Request Key, species, stock
type, container type, age class and request agency.
ADMINISTRATION
16. The Contractor shall perform its obligations under this Agreement to the satisfaction of
the Ministry Officer.
17. The Ministry officer shall be given reasonable access to the premises of the Contractor
to carry out inspections, including verification of sowing, seedling inventories,
inspections and audits at the time of lifting and packaging of the Seedlings.
STORAGE AND TRANSPORTATION
18. The Contractor shall not lift, package, store or transport any of the Seedlings until
the Contractor has received authorization from the Ministry Officer.
19. The Director, Forest Enterprises Branch shall:
(a) place lifting and packaging orders with the Contractor not less than 5 days prior
to delivery of Seedlings except in exceptional circumstances; and
(b) arrange for all Seedling transportation unless other arrangements have been
agreed to by the Contractor and the Director, Forest Enterprises Branch.
PAYMENT FOR SERVICES
20 (1) In accordance with the provisions of this section, the Director, Forest Enterprises
Branch shall pay to the Contractor the Contracted Price per Seedling for each Seedling
delivered to the Director, Forest Enterprises Branch during the Period of Delivery that
meets the Specifications to the amount in Schedule A.
(2) Upon receipt of written accounts submitted by the Contractor in accordance with the
provisions of section 20(3), the Director, Forest Enterprises Branch shall make
payments to the Contractor as an advance against the contracted price due to the
Contractor upon delivery of Seedlings meeting the Specifications during the
Period of Delivery.
(3) The Contractor shall submit written accounts to the Director, Forest Enterprises Branch
as follows:
(a) One year old seedlings
(i) upon completion of sowing satisfactory to the Ministry Officer, in an amount
equal to the product of the number of Seedlings sown; and 35% of the Price per
Seedling;
(ii) upon completion of the May 31 Seedling Inventory for summer plant Seedlings
(Period of Delivery between June 15 and September 14);
or upon completion of the July 31 Seedling Inventory for fall plant Seedlings
(Period of Delivery between Sept. 15 and Oct. 31);
or upon completion of the September 30 Seedling Inventory for spring/winter plant
Seedlings,
in an amount equal to the product of the number of Seedlings which the inventory
indicates will meet the Specifications during the Period of Delivery to the requested
volume; and 25% of the Price per Seedling;
(b) Two year old seedlings:
(i) upon completion of sowing satisfactory to the Ministry Officer, in an amount
equal to the product of the number of Seedlings sown; and 35% of the Price per
Seedling;
(ii) upon completion of the September 30 Seedling Inventory in the First Crop Year,
in an amount equal to the product of the number of Seedlings which the inventory
indicates will meet the Specifications during the Period of Delivery to the requested
volume; and 20% of the Price per Seedling;
(iii) upon completion of the May 31 Seedling Inventory in the Second Crop Year, in
an amount equal to the product of the number of Seedlings which the inventory
indicates will meet the Specifications during the Period of Delivery to the requested
volume; and 15% of the Price per Seedling;
(4) Subject to section 20(5) and upon receipt by the Director, Forest Enterprises Branch of:
(a) a written statement from the Contractor specifying the number of Seedlings delivered that
meet the Specifications; and
(b) an audit report by the Ministry officer;
the Director, Forest Enterprises Branch shall make a final payment to the Contractor for
the Seedlings delivered in an amount equal to the product of the Price per Seedling and
the number of Seedlings delivered less any advance payments made to the Contractor
under section 20(3) plus penalties resulting from audit.
(5) Notwithstanding any other terms of this Agreement, if at any time the total of the
payments per Seedling Request Key made to the Contractor under sections 20(3) and
(4) exceed the product of the Price per Seedling and
(a) the number of Seedlings which the seedling inventories indicate will meet the
Specifications by the Time of Delivery; or
(b) the number of Seedlings delivered minus the rejected Seedlings resulting from
audit and Seedlings pursuant to section 11(4);
the Contractor shall immediately reimburse the Director, Forest Enterprises Branch the
amount of the excess payment.
21. The Director, Forest Enterprises Branch is under no obligation to pay the Contractor for
the services provided by it under the terms of this Agreement in respect of Seedlings
which do not meet the Specifications during the Period of Delivery or for Seedlings
which have been lifted, packaged, stored or transported without prior authorization as
stated in section 18.
22 (1) The Director, Forest Enterprises Branch may, in his sole discretion, pay the Contractor
for services provided by it under the terms of this Agreement in respect of Seedlings not
meeting the Specifications during the Period of Delivery if:
(a) the Seedlings meet the Specifications through continued growth, culture and
maintenance by the Contractor at its expense;
(b) the Seedling height exceeds the maximum specified in Schedule 'A' the root
collar diameter must be greater than the target root collar diameter specified in
Schedule 'A';
(c) the Seedlings are separated into different size classes through resorting at the
Contractor's expense; or
(d) the Seedlings are accepted by the Director, Forest Enterprises Branch as
transplant stock.
(2) If the Director, Forest Enterprises Branch takes delivery of any of the Seedlings
described in sections 22(1)(a) (b) and (c), the Director, Forest Enterprises Branch shall
pay to the Contractor the Contract Price in respect of each Seedling delivered equal to:
(a) Fee = the Price per Seedling multiplied by the lesser of:
(i) the new minimum height specified by the Director, Forest Enterprises
Branch divided by the minimum height specified in Schedule A; and
(ii) the new minimum root collar diameter specified by the Director,
Forest Enterprises Branch divided by the minimum root collar
diameter specified in Schedule A;
for Seedlings below the standards specified in the Schedule A; or
(b) the price per seedling for Seedlings above the standards specified in the
Schedule A, but not greater than the new maximum height and the new root
collar diameter specified by the Director, Forest Enterprises Branch.
(3) If the Director, Forest Enterprises Branch takes delivery of any of the Seedlings
described in section 22(1)(d), the Director, Forest Enterprises Branch shall pay to the
Contractor a fee for service in respect of each Seedling delivered in an amount agreed to
by the parties.
(4) If within 30 days of the Period of Delivery, the Director, Forest Enterprises Branch
chooses not to pay for services provided in respect of the Seedlings referred to in section
22(1), upon notification by the Directory, Forest Enterprises Branch, the title to and
property in those Seedlings shall vest in the Contractor and the Contractor may dispose
of the Seedlings in its sole discretion.
(5) If the Director, Forest Enterprises Branch is unable to take delivery of Seedlings
meeting the quantities, species, stock types, age classes, and Specifications specified in
the Schedule A during the Period of Delivery, the Director, Forest Enterprises Branch
shall pay to the Contractor a fee per seedling equal to 5% of the Price per Seedling for
each month, or part there of, for the time period between the Period of Delivery and the
time the Contractor receives authorization to lift as stated in section 18.
23 (1) The Director, Forest Enterprises Branch is under no obligation to pay the Contractor for
the services provided by it under the terms of this Agreement in respect of Seedlings in
excess of the Number of Trees Allotted. If the Contractor delivers the quantities of
Seedlings by species, stock type and age class as specified in Schedule A and has excess
Seedlings of that species, stock type and age class meeting the Specifications during the
Period of Delivery, the Contractor shall at the time of delivery notify the Director,
Forest Enterprises Branch of the excess and the Director, Forest Enterprises Branch
may, in his sole discretion, within 30 days after the acceptance of delivery notify the
Contractor of acceptance of the excess Seedlings and pay in accordance with section
20(4).
(2) If the Director, Forest Enterprises Branch does not, within 30 days after the acceptance
of delivery, agree to pay a fee for services provided by the Contractor in respect of the
Seedlings referred to in section 23(1), upon notification by the Director, Forest
Enterprises Branch, the title to and property in those Seedlings shall vest in the
Contractor and the Contractor may dispose of the Seedlings in its sole discretion.
MISCELLANEOUS
24. If the Director, Forest Enterprises Branch, in his sole discretion which shall be exercised
reasonably, determines that the Contractor has failed to meet the requirements of this
Agreement, he may in writing notify the Contractor of the default and require it to
correct the default within a reasonable time, as determined by the Director, Forest
Enterprises Branch in his sole discretion which shall be exercised reasonably having
regard to the particular default alleged. If the Contractor fails to correct the default
within the time so fixed, the Director, Forest Enterprises Branch may terminate this
Agreement on written notice to the Contractor, and therefore, the only obligation of the
Director, Forest Enterprises Branch to the Contractor shall be to pay for Seedlings
delivered before the notice of termination which meet the Specifications.
25. Subject to 11(3), neither party shall be responsible for loss or damage caused by its
delay or failure to perform its obligations under this Agreement when the delay or
failure is due to strikes, floods, acts of God or the Queen's enemies, lawful acts of public
authorities or delays or defaults caused by common carriers which cannot be reasonably
foreseen or provided against.
26. This Agreement shall be construed in accordance with the laws of the Province of
British Columbia.
27. The Term of this Agreement and the Schedules attached to it may be amended by
the written agreement of the parties.
28. This Agreement shall not be assigned, subcontracted or transferred in whole or in part
without the written consent of the Director, Forest Enterprises Branch, except that
nothing herein will operate to prohibit the Contractor from pledging moneys due or
accruing due under this Agreement as security for borrowings pursuant to a general
assignment of book accounts, or assignment of a specific debt or otherwise.
29. Notwithstanding any other provision of this Agreement the payments of money by the
Director, Forest Enterprises Branch to the Contractor pursuant to this Agreement are
subject to:
(a) there being sufficient moneys available in an appropriation, as defined in the
Financial Administration Act, S.B.C. 1981, c.15 (the "Act"), to enable the
Province, in any fiscal year or part thereof when any payment of money by the
Director, Forest Enterprises Branch to the Contractor falls due pursuant to this
Agreement, to make that payment; and
(b) Treasury Board, as defined in the Act, not having controlled or limited, pursuant
to the Act, expenditure under any appropriation referred to in paragraph (a).
30. If any provision of this Agreement or the application of it to any person or circumstance
is invalid or unenforceable to any extent, the remainder of this Agreement and the
application of it to any other person or circumstance will not be affected or impaired
thereby and will be valid and enforceable to the extent permitted by law.
31. This Agreement constitutes the entire agreement between the parties with respect to the
subject matter of this Agreement and there are no representations or warranties, express
or implied, statutory or otherwise and no agreements collateral to this Agreement other
than as expressly set forth or referred to in this Agreement.
32. Each of the parties will, upon the reasonable request of the other, make, do, execute or
cause to be made, done or executed all further and other lawful acts, deeds, things,
devices, documents, instruments and assurances whatever for the better or more perfect
and absolute performance of the terms and conditions of this Agreement.
33. Wherever the singular or masculine is used in this Agreement it shall be construed as
the plural or feminine or neuter, as the case may be, and vice versa where the context or
the parties so require.
IN WITNESS WHEREOF the Parties have executed this Agreement and this Agreement is made
as of the day and year first above written.
SIGNED, SEALED And DELIVERED
by the Director, Forest Enterprises Branch on behalf of
Her Majesty the Queen in the Right of
the Province of British Columbia
in the presence of:
| __________________________________ | ) | ||
| Witness | ) | ||
| __________________________________ | ) | _________________________________ | |
| Address | ) | Director, Forest Enterprises Branch | |
| ) | Ministry of Forests | ||
| The COMMON SEAL OF | ) | ||
| ) | |||
| __________________________________ | ) | ||
| was hereunto affixed in the presence of: | ) | ||
| ) | |||
| ) | |||
| __________________________________ | ) | ||
| Authorized Signatory | ) | ||
| __________________________________ | ) | ||
| Authorized Signatory ) | ) | ||
| ) | |||
| __________________________________ | ) | ||
| Witness | ) | ||
| ) | |||
| __________________________________ | ) | ||
| Address | ) |
