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

FS-2400-NEW

OMB 0596-NEW

Expires (XX/20XX)

Pre-award Waiver, Release, and Limitation of Liability Agreement

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 ______________, the Forest Service declared Purchaser to be the apparent high-bidder on the contract to operate the ______________ Timber Sale, located on ___________ National Forest;

Whereas, the Parties recognize that the _____________ 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;

Now Therefore, the Parties agree as follows:

Terms and Conditions

1. Contract Award. After the Parties’ execution of this Agreement, the Contracting Officer shall promptly award the contract for the ________ Timber Sale to Purchaser, if Purchaser has met all the eligibility requirements for contract award.

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 contract for the _________ Timber Sale because of Litigation. Purchaser agrees that the foregoing waiver and 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 B8.342, unless the duration of the delay or suspension exceeds either six months of Normal Operating Season time or one calendar year.

5. Merger. Upon the Parties’ execution of the contract for the ___________ Timber Sale, 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, contained herein. Should Purchaser 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.

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: ____[Purchaser]____

By: By:

Title: Contracting Officer Title:

I, __________________________, certify that I have full authority to represent the interests of ___[Purchaser}___, and that my signature above binds ___[Purchaser]___ to this agreement.

_________________ Corporate Seal

(If one exists)