Fertilizer Contract - British Columbia



|[pic] [pic] |Ministry of |Stand Tending |

| |Forests, Lands and |Fertilization |

| |Natural Resource Operations |Schedule A |

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ARTICLE 1: GENERAL TERMS AND CONDITIONS

Definitions

1.01 In this Schedule, the following words shall have the following meanings:

"Helispot" A cleared area allowing temporary landing for helicoptors to be safely reloaded;

"No-Treatment Zone" or buffer zone means an area within which no fertilizing takes place;

"Prescription" means a document for describing actions to be carried out on a free growing site to: ensure that stand management activities are planned and implemented to maintain or enhance the inherent productivity of the site; ensure resource values including biological diversity are identified and accommodated; and set out a series of stand management activities to produce a stand capable of meeting the stated management objectives;

“Treatment Type” means the particular method(s) of fertilizer treatments that the Contractor is obligated to carry out under this Agreement; and

“Treatment Unit” means the delineated area on any attached map wherein one or more Treatment Types may be prescribed to be carried out.

Amendments and Supplements

1.02 The specifications in this Schedule may be amended or further supplemented in other Schedules to this Agreement or in the Work Progress Plan.

Equipment: Compliance with Laws and Regulations, and Inspection

1.03 The Contractor will secure and maintain in good standing all necessary approvals and certificates for the aircraft and specialty services as described in this Agreement. The Contractor will equip and operate said aircraft in accordance with the laws and regulations of Canada and the Province of British Columbia.

1.04 Aircraft carrying persons employed by or acting as agents of the Province must have the appropriate approvals as determined by the aircraft’s flight manual and certificate of airworthiness.

1.05 The equipment, including vehicles for hauling the fertilizer(s), must be capable of meeting the requirements contained herein without causing unacceptable levels and/or kinds of site disturbances to the Work Area, Treatment Units and/or roads.

1.06 All equipment intended for use during the Term of this Agreement may be inspected by the Ministry Representative. Should equipment not approved by the Ministry Representative be used, the Province may terminate this Agreement forthwith.

1.07 Should the Ministry Representative, upon inspecting the equipment, determine that it is unsuitable for the required Work, this Agreement may be terminated forthwith.

Provision of Treatment Units, Photographs and Maps

1.08 Subject to this Agreement, the Province shall permit the Contractor to conduct specified Treatment Types in the Treatment Units.

1.09 The Province shall provide the Contractor with the applicable operational photographs and/or maps of the Treatment Unit(s) and Treatment Type(s). The treatment boundaries shall be clearly marked by the Province on said photographs and maps.

Project Cancellation or Delays

1.10 In the event that the project is cancelled/postponed after the Contractor is notified to commence Work, the Contractor may submit a claim for expenditures to date up to a maximum of five percent (5%) of the amount by which the reduction of the total bid price in Schedule B (herein called the “shortfall”) exceeds ten percent (10%) of the total bid price before the reduction was made.

Records to be kept

1.11 The Contractor will provide the Province with a fertilization operations record for the project including non-dispensing activities in a form satisfactory to the Province. The payment process may not be initiated until the completed form has been received by the Ministry Representative.

Assessments

1.12 Any assessments made against the Contractor by the Province under this Agreement shall be collected by deducting the amount of the assessment from either the basic payment or from the performance security held by the Province prior to the returning of the performance security to the Contractor.

Interpretation

1.13 Any reference in the Agreement to a manual or a form means a manual or form published by or for the Ministry of Forests, Lands and Natural Resource Operations and includes every amendment to them and any manual or form published from time to time in substitution for them or replacement of them.

1.14 The powers in this Schedule for the Province to enforce the Contractor’s compliance with the terms and conditions of this Agreement may be exercised separately, concurrently or cumulatively with those powers of the Province set out elsewhere in the Agreement.

ARTICLE 2: PERSONNEL

Specially-Trained Personnel

2.01 The pilot doing the pre-treatment reconnaissance flight with employees or agents of the Province must be approved in writing by the Regional Air Operations Section.

2.02 The pilot designated to perform the operational fertilizer application must either pilot or be present on a pre-treatment reconnaissance flight in order to familiarize him/herself with the Treatment Unit(s).

2.03 The Contractor shall, for the fertilizer application, supply pilot(s) who, in addition to holding a valid Commercial Pilot’s Licence and any required federal/provincial licences and certificates, have demonstrated ability and experience in applying fertilizer in forest situations. No pilot may make an operational flight without direct supervision unless he has successfully made an application to a minimum of one thousand (1,000) hectares of forest land under the supervision of experienced pilots.

2.04 In the event that a substitution of a pilot is required, the substitute must meet the requirements of this Agreement. The substitute pilot shall be required, at the Contractor’s expense, to carry out a reconnaissance flight of the Treatment Unit(s) prior to the commencement of fertilization application.

2.05 The Contractor shall provide a minimum of one trained worker at each active loading area to supervise aircraft fuelling and the loading of fertilizers. A minimum of two workers must be provided at an active loading area.

2.06 The project supervisor shall not be the pilot who is to be used for the operation.

2.07 The Contractor, its employees, and agents shall be adequately equipped and trained to take remedial action in the event of an equipment malfunction and/or spill of fertilizer. The Ministry Representative may require from time to time proof that the Contractor, its employees, and agents have an emergency plan in effect.

ARTICLE 3: MATERIALS AND EQUIPMENT

Helispots

3.01 The Province and Contractor shall mutually agree on the location and suitability of Helispots required for the Work under this Agreement.

3.02 The Province and the Contractor shall, prior to the commencement of fertilizer application, determine the safety of Helispots to be used by the fertilizer application aircraft and support equipment. Any improvements before or after commencement of fertilizer application shall be at the Contractor’s expense.

3.03 The selection, operation and maintenance of Helispots will be the responsibility of the Contractor. The selection must include consultations with local resource road users in order to accommodate local traffic. The Contractor will need to notify licensees on Road Permit roads and have authority to use Forest Service Roads by Road Use Permit or exemption. Helispots will be inspected by the Province during use and at the completion of the Work. The Contractor will be responsible for cleanup of any spills of fertilizer, fuel or oil that occur while undertaking the Work..

Public Information Signs

3.04 The Contractor shall post the Public Information Signs along public access routes and, where necessary, supply flag people to coordinate traffic. Road delays must not exceed five (5) minutes.

Equipment - General

3.05 The Contractor must supply all of the equipment required for the Treatment Types specified in the schedules attached hereto.

3.06 The required safety equipment for all persons engaged in this Agreement shall be provided at the Contractor’s expense.

3.07 The Contractor shall obtain the Ministry Representative’s approval for the loading equipment to be used for each operating aircraft.

3.08 The Contractor shall supply all of the equipment necessary to establish suitable ground-to-air radio communication during all flights. All ground-based vehicles must be equipped with the radio frequencies as approved in writing by the Ministry Representative. The Contractor shall be responsible for maintaining the radio communications throughout the fertilization application and for flight watch purposes during any flights with employees of the Province on board.

3.09 The Contractor shall notify the Ministry Representative immediately if areas outside of the designated Treatment Units were treated. This shall be followed by written notice.

3.10 In the event of a breakdown in ground-based communications the Contractor shall cease operations until such time as communications can be resumed.

3.11 The Contractor shall correct all deficiencies of his aircraft and support equipment so that the equipment at all times complies with all manufacturer’s standards and federal/provincial regulations.

3.12 In the event of an equipment breakdown, replacement equipment must be provided within seventy-two (72) hours.

3.13 Substitute equipment shall be approved by the Ministry Representative in writing prior to use.

Fertilizer Application Apparatus Specifications

3.14 The fertilizer application system shall include the following specific equipment features:

(a) aircraft electronic guidance instruments capable of ensuring even and accurate application of fertilizer over the Treatment Unit(s) and the avoidance of non-target areas;

(b) loading equipment with accurate metering device, or aircraft tank/hopper or bucket with a calibration so as to provide an accurate measure of the fertilizer;

(c) a spreader capable of functioning according to the manufacturer’s specifications and calibrated to ensure the required fertilizer application rate;

(d) where a bucket is used, it must be mounted according to the manufacturer’s specifications;

(e) a leak-proof system with a positive shut-off device; and

(f) a functional quick-dump system.

ARTICLE 4: THE FERTILIZER(S)

Transport, Handling and Storage of Fertilizers

4.01 The Province shall arrange for supply of the fertilizer(s) at the place of manufacture or at designated area(s) specified by the Province.

4.02 The Contractor shall be responsible for both the ordering of fertilizer from the Province selected supplier and scheduling the entire transport of fertilizer from the place of manufacture or designated area(s) specified by the Province, to the worksite. The cost of unloading and transportation from the designated area (s) is the responsibility of the Contractor.

4.03 The Contractor is responsible for the safe and secure transport of the fertilizer(s) in the Contractor's possession and shall act in accordance with all of the applicable federal and provincial statutes and regulations.

4.04 The Contractor shall provide a means of securing equipment and supplies at the Treatment Unit or loading site, to prevent unauthorized access to the fertilizer(s).

4.05 The number and capacity of trucks for delivering fertilizer to work sites must be detailed and able to meet the fertilizer off-loading requirements.

4.06 The loading of fertilizer into the dispensing equipment shall be done in location(s) mutually agreed upon by the Contractor and the Ministry Representative, such that any spilled fertilizer shall not enter any water source or other non-target area.

4.07 Tanks, buckets and other dispensing equipment shall not be washed in or near streams, rivers or lakes.

Quantity/Type of Fertilizer(s)

4.08 The quantities of the fertilizer(s) to be applied to the Treatment Unit(s) shall be as stated in Schedule B attached hereto. Any changes in the amount or type of fertilizer to be applied must be authorized in writing by the Ministry Representative prior to application.

Leakage, Spills and Accidents

4.09 Prior to the commencement of Work, the Contractor will submit to the Ministry Representative for approval a copy of a contingency plan of action in the event of fertilizer spills and/or accidents.

4.10 Any leaks and/or spills of chemicals (such as fertilizers, oils and fuel) are the responsibility of the Contractor and shall be cleaned up and disposed of in accordance with provincial laws and regulations, and to the satisfaction of the Ministry Representative, prior to the resumption of fertilizer application.

4.11 Fertilizer spilled at the loading or worksite shall be cleaned up the same day by the Contractor.

4.12 In the event of a fertilizer spill or misapplication into non-target areas (e.g. water sources), the Contractor shall immediately notify the Ministry Representative and other emergency contacts specified in the contingency plan. Written notice must promptly follow the verbal notice.

4.13 Where an aircraft is involved in an accident or incident, the Contractor shall immediately notify the Ministry Representative and Transport Canada.

Empty Containers

4.14 The Contractor shall remove fertilizer containers or bags from forest land and disposed of in accordance with provincial laws and regulations.

4.15 Despite any other actions by the Contractor, the obligation of the Contractor under this Agreement is not fulfilled until the proper disposal of all waste materials has been completed.

Site Clean-up

4.16 Upon the Contractor vacating the work, storage, loading, landing and Treatment Unit areas, the Ministry Representative may inspect such areas to determine whether or not the areas have been left in an acceptable condition.

4.17 Should the Ministry Representative determine that the Contractor left such areas in an unacceptable condition, and upon failure of the Contractor to correct the condition to the satisfaction of the Ministry Representative, the Province will repair the areas(s) and charge the entire cost of the repairs to the Contractor.

4.18 Any determination of the Ministry Representative under paragraphs 4.16 and 4.17 are final and binding on the parties hereto.

ARTICLE 5: APPLYING THE FERTILIZER

5.01 Fertilizer application operations shall be stopped by the Contractor when:

(a) there is inadequate daylight for safe application; and

(b) weather conditions arise which could adversely affect normal application patterns, or safety of application or treatment effectiveness.

5.02 Fertilization on snow will be allowed only as directed by the Ministry Representative.

5.03 The Contractor and the Ministry Representative shall, prior to the commencement of the operation, mutually agree upon a visual signal system for emergencies ( e.g. smoke bombs, vehicles, lights and flags). This will be detailed in the Work Progress Plan.

5.04 The Contractor shall carefully note all No-treatment or buffer zones marked on the maps and photographs and shall restrict the application of fertilizer to the Treatment Unit(s) specified in Schedule B. The Contractor may be required to reimburse the Province for fertilizer misapplied at cost not to exceed the price from the supplier.

5.05 The Contractor shall mark boundaries of the Treatment Unit(s) in advance of flying, including any buffer strips around watercourses or other specified areas to be avoided, to the satisfaction of the Ministry Representative.

5.06 The pilot(s) shall make a pre-fertilize reconnaissance flight with the Ministry Representative to orient them to the Treatment Unit boundaries, buffer zones and sensitive areas. If sub-contracting has been allowed under this Agreement, then the Contractor shall make a pre-fertilize reconnaissance flight with the sub-contractor.

5.07 The Contractor and the Ministry Representative shall mutually agree upon the number and direction of flights, and swath overlap to be done on each Treatment Unit.

5.08 The Contractor shall plan aircraft ferrying routes between the staging areas and the Treatment Unit(s) so as to minimize flights over major aquatic systems and to avoid human residences.

5.09 The Ministry Representative shall check the calibration of the application system with the Contractor at the start of operations, and may check during operations as well. The delivery rates shall be as specified by the manufacturer of the application system. If sub-contracting has been allowed under this agreement, then the Contractor shall check the calibration with the sub-contractor.

5.10 The Contractor shall calibrate the equipment to attain the desired application rate specified in Schedule B. If sub-contracting has been allowed under this agreement, then the Contractor shall test the fertilizer application pattern with the sub-contractor.

5.11 Research installations, water bodies and other sensitive areas will be protected as follows:

(a) Adequate buffer strips will be required to protect these areas as directed by the Ministry Representative and stated in the Work Progress Plan. Such areas may be required to be flagged by the Contractor under the direction of the Ministry Representative before application of fertilizer; and

(b) Flying adjacent to all research plots, water bodies and other sensitive areas will be parallel.

5.12 The Contractor shall not permit the employees or agents of the Province to be in the Contractor's aircraft during fertilizing operations.

ARTICLE 6: STANDARDS OF PERFORMANCE AND WORK PROGRESS

Work Progress Plan

6.01 The actual date that the Work may start is dependent upon the weather and/or plan development. Once commenced, Work shall be continuous except as provided for in paragraph 6.03.

6.02 Despite the suspension of Work provisions contained in the NRS1000 form attached hereto, the Province may, at its discretion, direct the Contractor to suspend Work for either a specified or an indefinite period, in accordance with the provisions of paragraphs 6.04 and 6.05 where the Ministry Representative or agent determines that the weather or other conditions are unsuitable.

6.03 If the Province, having suspended Work pursuant to paragraph 6.02, does not permit Work to resume within five (5) Work Days, the Contractor may, by giving written notice to the Province, terminate this Contract without penalty. There shall be no claim by either party for compensation of any kind arising out of the suspension of operations. Payment shall be made for areas satisfactorily treated prior to the suspension of Work.

6.04 Where the Contract is terminated by the Contractor pursuant to paragraph 6.03 or by the mutual consent pursuant to this Agreement, the Contractor shall deliver at the expense of the Province, any fertilizer in his possession or control to a location specified by the Ministry Representative. The delivery costs shall be mutually agreed upon by the parties hereto prior to undertaking this action.

6.05 As part of a pre-work conference, a Work Progress Plan shall include:

(a) the location of the Helispots and loading sites;

(b) the number and capacity of fertilizer delivery trucks and their fertilizer off-loading requirements;

(c) a schedule of fertilizer application to the Treatment Unit(s) as listed in Schedule B;

(d) the location of buffer zones around watercourses, waterbodies, No-Treatment Zones, or other specified areas to avoid, sufficient to ensure fertilizer does not enter them;

(e) the human resources to be utilized to complete this Agreement; and

(f) radio frequencies to be used during operations;

(g) the visual signal system to be used for emergencies; (e.g. smoke bombs, vehicles lights, and flags)

(h) method of controlling public access;

(i) a contingency plan in the event of fertilizer spill and/or accident which shall include, but is not limited to:

(i) a description of the types of spill or events requiring immediate action,

(ii) the names and telephone numbers of emergency contacts,

(iii) a water quality monitoring plan for spills or misapplication in or near a water body,

(iv) the accident clean up procedures, and

(v) disposal of spill materials;

(j) other scheduling requirements and conditions as deemed necessary by the Ministry Representative.

Additional information is contained in the current Fertilization Guidebook

6.06 The Work Progress Plan shall be subject to modification by mutual consent when required by development of unforeseen conditions beyond the Contractor’s control, such as weather, fire conditions, etc.

Progressive Treatment

6.07 Unless otherwise authorized in writing by the Ministry Representative, the Contractor shall complete the Treatment Units in the order set out in the Work Progress Plan.

6.08 Unless otherwise authorized in writing by the Ministry Representative, each Treatment Unit must be completed to the satisfaction of the Ministry Representative before the Contractor may commence Work on the next Treatment Unit.

6.09 The Ministry Representative will periodically inspect each unit or parts thereof during active operations for the purposes of determining the quality of work and the amount of payment due.

Detailed Standards

6.10 The Contractor must have on site at all times:

(a) a copy of this Agreement and work plan;

(b) Material Safety Data Sheet (MSDS) of the fertilizer(s) being applied; and

(c) a copy of the contingency and safety plan;

6.11 In addition to the conditions specified in this Schedule, the Contractor shall comply with the standards of performance (if any) by Treatment Type and Treatment Unit stipulated in the Schedules attached hereto, and in the Work Progress Plan.

6.12 Schedule B shows the total hectares to be treated and includes all of the hectares that are possible to treat to allow for the substitution of units in the event that the access to the proposed staging sites is not available, for the reason of the access being affected by weather or closure.

ARTICLE 7: MEASUREMENT AND PAYMENT

7.01 Satisfactory distribution of solid fertilizers may be assessed by a method approved by the Province.

7.02 Where a liquid fertilizer is used, deposition of liquid fertilizer spray may be assessed by analyzing the size, number and distribution of the fertilizer droplets on assessment cards or samplers.

7.03 The hectares satisfactorily treated and therefore eligible for payment will be determined on the basis of fertilizer formulation placed on the Treatment Unit(s) (using the rate per hectare of application as the converting factor), provided that the application is made in accordance with the specifications stated in Schedule B.

7.04 The basic payment for each Treatment Unit, part of a Treatment Unit or for the Agreement as a whole shall be subject to such charges, if any, as set out in paragraphs 7.05 to 7.08 and elsewhere in this Contract.

7.05 No payment will be made on the basis of fertilizer that is lost, misapplied or negligently spilled by the Contractor. The Contractor shall pay for such fertilizers at a cost not to exceed the price from the supplier.

7.06 The Ministry Representative may direct that any remaining fertilizer resulting from metering errors will be applied to the Treatment Unit(s) at the Contractor’s expense.

7.07 If the Contractor applies the fertilizer to an area outside of the designated Treatment Unit(s), the Contractor will be penalized by subtracting the amount of area that was fertilized without authorization from the area satisfactorily fertilized with the Treatment Unit(s). The Contractor will be charged for the cost of any fertilizer used on unauthorized areas.

7.08 If the Contractor is unable or unwilling to treat all or part of any Treatment Unit(s) listed in Schedule B, which the Ministry Representative considers treatable, the basic payment may be reduced by an amount equal to the product of the untreated area (in hectares) multiplied by the rate of one thousand dollars ($1,000) per hectare. No payment reduction will be made if the untreated area is less than one-tenth (1/10) of a hectare.

7.09 The assessments provided for in paragraphs 7.05 to 7.08 shall be without prejudice to any other remedies that the Province may have, in law or equity, as a result of the acts or omissions giving rise to the assessments.

ARTICLE 8: NON-COMPLIANCE AND TERMINATION

Unacceptable Quality

8.01 Despite the foregoing provisions regarding the calculation of payments, whenever an inspection indicates that the Work quality is less than the applicable minimum standard for the Treatment Type(s) in the Treatment Unit(s) the Province shall consider the Contractor’s performance to be unsatisfactory, and shall notify the Contractor accordingly.

8.02 Any notice given to the Contractor for unsatisfactory performance shall specify whether or not the Province wishes to exercise its option to require the Contractor to rework the substandard areas within the Treatment Unit(s). If the areas are to be reworked, the notice shall specify a deadline by which time the Contractor must have, at his own expense, improved the quality of Work within the Treatment Unit(s) to at least the minimum acceptable standard.

8.03 Should the Contractor fail to comply with the requirements of a notice from the Province that demands that the quality of Work in the Treatment Unit(s) be raised to an acceptable standard by a specified deadline, the Province shall make no payment for the portions of the Treatment Unit(s) which, in the opinion of the Ministry Representative, have not been treated satisfactorily.

8.04 If, after giving notice under paragraph, 8.01 an inspection of further Work indicates that the quality of Work remains below the minimum acceptable standard, the Province shall make no payment for the Treatment Unit and may terminate this Agreement forthwith.

8.05 Despite any paragraph in this Contract, where the Ministry Representative determines that the conduct of the Contractor is such that the quality of the environment in and around the work area, camp or rest area which the Contractor has occupied or worked has been degraded, after having issued a written notice stating that such conduct is unacceptable, the Province may, at its sole discretion and without further warning to the Contractor, terminate this Agreement forthwith.

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