MEMORANDUM OF SPECIAL COMMISSIONER S TIMBER SALE

Transcription

1 MEMORANDUM OF SPECIAL COMMISSIONER S TIMBER SALE THIS MEMORANDUM OF SPECIAL COMMISSIONER S TIMBER SALE is made and entered into this 3 rd day of October, 2018, by and between ("Purchaser"), and RUSSELL O. SLAYTON, JR. ("Special Commissioner"). WITNESSETH: In execution of an Order entered in the Circuit Court for Charlotte County, Virginia ( Circuit Court ), by which Russell O. Slayton, Jr., was appointed Special Commissioner, and as such authorized to sell the subject timber, said Special Commissioner with full power to act did sell to Purchaser as high bidder at public auction on October 3, 2018, timber standing and growing on acres of real property designated as Parcel(s) on Exhibit A attached hereto ( Timber ), for the sum of $ ("Purchase Price"). In connection with such sale, Purchaser acknowledges and agrees to the following terms and conditions: 1. The Timber was sold in an "as is" condition with no representations or warranties of any kind whatsoever. 2. Special Commissioner will, by Timber Deed, convey the Timber to Purchaser. The form of the Timber Deed to be used to convey the Timber is attached hereto as Exhibit B. 3. Special Commissioner hereby acknowledges receiving a deposit from Purchaser on October 3, 2018, in the amount of $ ( Deposit ), which will be applied to the Purchase Price. 4. Purchaser hereby acknowledges that Purchaser must tender to Special Commissioner the balance of the Purchase Price, in the amount of $, and other costs due from Purchaser, on or before November 5, Both the Deposit and the remainder of the Purchase Price shall be deposited into the Special Commissioner s IOLTA trust account pending the confirmation of the sale by the Circuit Court. 6. A hearing seeking Circuit Court confirmation of the sale will be scheduled as soon as possible after October 3, Purchaser will be notified of the date, time and place of the confirmation hearing. 7. At the conclusion of the confirmation hearing, and assuming that the Circuit Court accepts the high bid, confirms the sale and authorizes Special Commissioner to convey the Timber, Special Commissioner will, contingent on receipt from Purchaser of all amounts due from Purchaser, provide Purchaser a Timber Deed which conveys the Timber to Purchaser or Purchaser s designee. Initials:

2 8. The risk of loss from casualty or otherwise and all liabilities of the ownership of the Timber shall pass to Purchaser at the conclusion of the bidding. 9. If after the sale has been conducted Special Commissioner is advised of a Court action filed prior to the time of the confirmation hearing which challenges the validity of the sale, Special Commissioner will advise Purchaser of that challenge. If by Court Order the sale is determined to be invalid, Special Commissioner will refund the Deposit to Purchaser, after which refund Special Commissioner shall have no further liability or responsibility to Purchaser. 10. In the event that the Circuit Court does not confirm the sale, then Purchaser acknowledges that the sale is void and Purchaser s bid is rejected. Should a Court Order be entered to that effect, Special Commissioner will refund the full Deposit to Purchaser, after which refund Special Commissioner shall have no further liability or responsibility to Purchaser. 11. If a suit challenging the sale is filed in a Court of competent jurisdiction, whether at law or in equity, prior to the Circuit Court s confirmation of the sale, Special Commissioner shall have the right to challenge such suit, in which event Purchaser s bid shall remain effective until a final Court Order is entered in such suit, or alternatively, declare the sale to be void and Purchaser s bid to be rejected, in which event Special Commissioner shall have no further liability or responsibility to Purchaser after return of the Deposit. 12. Purchaser acknowledges that time is of the essence in closing, and if Purchaser has not delivered the entire balance due to Special Commissioner by November 5, 2018, Purchaser shall be in default. 13. Special Commissioner will convey the Timber to Purchaser by Timber Deed after receipt of the entire balance due from Purchaser and after Circuit Court confirmation of the sale. 14. If Purchaser fails to remit to Special Commissioner the entire balance due from Purchaser, Purchaser shall be deemed in default and the Deposit shall be retained by Special Commissioner to offset costs incurred as a result of Purchaser s default. 15. Purchaser shall be liable for any costs or expenses incurred, above those costs or loss which would have been incurred had Purchaser not defaulted. 16. If, for any reason, Special Commissioner is unable to convey the Timber to Purchaser, Purchaser shall be entitled to a refund of the Deposit, without interest, but Purchaser shall have no other remedy or cause of action, and Special Commissioner shall have no obligation or liability to Purchaser after the Deposit is refunded to Purchaser. Initials: 2

3 WITNESS the following signatures and seals: DATE DATE: (SEAL) Purchaser (SEAL) Special Commissioner PURCHASER S CONTACT INFORMATION: Name: Physical Address: Mailing Address: Contact Numbers: (cell) (home) (work) Address: Initials: 3

4 EXHIBIT A Parcel 1 CU BC REE K Parcel 2 Cemetery SR SR mi. t 67 o 5 6 ³ # * 8 OP E N OP EN CUB CREEK Parcel 3 Cub Creek, LLC +/ Total Acres Charlotte County, VA Map by: Springbank Forestry, LLC Cub Creek, LLC Total Tract ( /- Acres) Parcel 1 Timber Sale Area (101+/- Acres) Parcel 2 Timber Sale Area (124+/- Acres) Parcel 3 Timber Sale Area (148+/- Acres) Wetland Access/Path 1 inch = 1,320 feet # * 8 Utility Line Cellular Tower Barn Total Property Boundary is recently surveyed and is marked with Paint, Chops, and/or Ribbon. Interal property lines between Parcels 1, 2, and 3 are indicated by a red line on the map. Copyright: 2013 National Geographic Society, i-cubed

5 EXHIBIT B TIMBER DEED Charlotte County, Virginia THIS TIMBER DEED ( DEED ) is made and entered into in duplicate this day of, 2018, by, having an address of, hereinafter called Seller, and, having an address of, hereinafter called Purchaser. WITNESSETH All merchantable trees and timber now growing or hereafter to grow, during the term hereof, on a acre portion of that certain tract or parcel of land situated in Roanoke Magisterial District of Charlotte County, Virginia, containing acres, formerly known as Poor House Farm, located on the waters of Cub Creek and recorded in the Clerk s office of the Circuit Court of Charlotte County, Virginia in Deed Book 101, Page 423 and as further described on the map attached hereto as Exhibit A. TERMS AND CONDITIONS 1. This transaction is a Lump Sum Payment of Purchase Price. Purchaser is paying upon the execution of this DEED the sum of. 2. The purchaser will have until in which to harvest and remove the trees and timber from subject property. 3. Seller and its agents shall have the right to inspect the timber harvesting operation periodically, either with or without notice, for compliance with this Agreement. Purchaser must notify Seller or Seller s agent at least 48 hours prior to the beginning of harvesting operation. Prior to commencement of timber harvest, Purchaser shall notify Virginia Department of Forestry (VDOF). Purchaser shall provide Seller the VDOF notification confirmation number. 4. Seller hereby grants to Purchaser, its successors and assigns, the right to enter upon said lands at any and all times during said term with tools, trucks, trailers, men and equipment that are necessary or convenient for the cutting and removal of said trees and timber. Purchaser agrees to cooperate with Seller or Seller s agent in the location of any needed new roads and logging decks. Access will be granted as shown on attached map (Exhibit A) and is guaranteed by the Seller. Page 1 of 4

6 5. It is the obligation of Seller, its successors in title and assigns, to pay before delinquent any and all taxes of every nature against the land and timber and to pay before delinquent any and all liens against said land and/or timber. Seller, for itself and its successors and assigns, hereby fully warrants the title to said trees and timber to be cut and will defend the same against the lawful claims of all persons whomsoever claiming by, through or under Seller. Seller expressly warrants and represents there are no mortgages, liens, tax liens, leases or other encumbrances against said timber which cannot be released. 6. The boundary lines of the Sale Area are sufficiently marked. All marked line monuments, all marked line trees and any Reserve Trees marked with Paint and/or Ribbon are to be left standing. 7. In cutting and removing said trees, Purchaser agrees to follow good and acceptable logging practices. All parties and parties agents agree to abide by BEST MANAGEMENT PRACTICES ( BMPs ) as promulgated by the VDOF. Purchaser is responsible for complying with VDOF BMP s for close-down for timber harvest operations. 8. Purchaser shall remove all laps and tops from streams and adjoining property immediately. After completion of Purchaser s logging operations, Purchaser shall be responsible for removing any trash, junk equipment, tires, oil drums, etc. from the property. 9. All existing roads and fire lanes used by the Purchaser shall be maintained by the Purchaser in a passable condition during the term of this Agreement, and upon completion of timber harvesting operations, all such roads and fire lanes shall be restored to a condition as good or better than they were prior to harvesting operations, by Purchaser or at his expense. Existing rolling dips and broad-based dips are to be restored to as good as or better condition. 10. Purchaser shall indemnify and hold harmless the Seller from any and all liability and any and all loss, including attorney fees and other reasonable expenses occurred arising from the operation, activities, or omissions of buyer incident, or related to this contract or upon the sale area, including such liability or loss caused by acts or omissions of buyers employees, contractors, sub-contractors, employees of contractors, or sub-contractors, and invites, and weather such liability or loss be to an adjoining landowner or to said employees, contractors, sub-contractors, employees of contractors, or licensee of buyer, or to any other for property damage, personal injury, death, or otherwise. Buyer shall provide Seller s agent a proof of Workman Compensation ($1,000,000 coverage required) and General Liability Insurance ($1,000,000 coverage required). 11. In the event of a dispute between the parties hereto described the matter shall be submitted to arbitration, with the SELLER selecting an arbitrator, the PURCHASER selecting an arbitrator, and the third arbitrator selected by the two arbitrators selected by the parties. The decision of the arbitrators shall be by majority vote. The cost of the Page 2 of 4

7 arbitration shall be divided between the two parties as follows: The SELLER shall pay the arbitrator that she chooses, the PURCHASER shall pay the arbitrator that they choose, and the costs for the third arbitrator shall be paid by the party whom the majority of the arbitrators consider to be the losing party. All arbitrators chosen shall be consulting foresters that have conducted one or more timber sales in the Commonwealth of Virginia in the last twelve months preceding the signing date on this timber sale contract and are also current members of the Society of American Foresters. 12. The Seller reserves the right to stop logging during extremely wet conditions if there is excessive rutting or soil damage. If the logging operation is stopped because of wet conditions, additional time equal to the halted period will be granted as an extension to the contract. 13. Skimming or removal of saturated soils from existing access roads shall be avoided. Upon start of timber harvest, roads to be promptly day-lighted by removal of trees from the sales area that shades timber harvest roads. 14. Reforestation shall be the responsibility of the Seller. 15. Upon completion of harvest, any topsoil removed in deck construction is to be spread back onto the deck site by Purchaser. 16. At the completion of the harvest, the Purchaser shall release the tract in writing so that it can be reforested as soon as possible. Page 3 of 4

8 IN WITNESS WHEREOF, the said parties have hereunto set their hands and seals the day and year above written. STATE OF CITY/COUNTY OF, to-wit SELLER: Sign: The forgoing Timber Deed dated, 2018 was acknowledged before me the day of, 2018, by. Notary Public PURCHASER: Sign: STATE OF CITY/COUNTY OF, to-wit The forgoing Timber Deed dated, 2018 was acknowledged before me the day of, 2018, by for Notary Public Page 4 of 4