APPENDIX C-2
DOCUMENT 11

PERMIT OF OCCUPATION FOR
WATERWORKS
 
 

        THIS AGREEMENT made this day of , 199
 

BETWEEN:
 

        NISGA'A NATION
        of                                     

        (the "Owner")
 
 
AND:
 
 
        The Holder of British Columbia Conditional Water Licence             ,
        being as of the date of this Agreement                                             
        of                                                                                                       
        ("the Permittee")
 

WHEREAS the Owner has agreed to grant to the Permittee a permit in respect of that parcel of Nisga'a Lands ("the Land") described in the attached Schedule "A", entitled Legal Description Schedule;

NOW THEREFORE in consideration of the fee to be paid by, and the covenants of, the Permittee, the Owner and the Permittee agree as follows:
 
 

ARTICLE 1 - GRANT OF PERMIT

1.1        The Owner, on the terms set forth therein, hereby grants to the Permittee a permit to occupy the Land for the purpose of constructing, reconstructing, replacing, maintaining and operating thereon works necessary for the conveyance of water from (watercourse) to (legal description) ("the Appurtenant Property"), in accordance with British Columbia Conditional Water Licence ("the Water Licence") and for the purposes specified in the Water Licence on the date of this Agreement (the "Commencement Date").
 
 

ARTICLE 2 - THE LAND

2.1        The Land that is authorized to be occupied under this permit is described in the Schedule attached and entitled "Legal Description".
 
 

ARTICLE 3 - TIMBER CUTTING

3.1        The Permittee may cut and remove from the Land any timber, shrubs or foliage necessary to permit the construction, reconstruction, replacement, maintenance and operation of the works referred to in section 1.1, provided that prior to the cutting or removal of any timber, the Permittee will apply for and obtain from the Owner a timber licence under which the Owner, acting reasonably, may determine the amount of compensation which the Permittee will pay to the Owner in respect of trees that are cut, removed, damaged, or destroyed by the Permittee.
 
 

ARTICLE 4 - PERMIT FEE

4.1        On the Commencement Date and on each anniversary of the Commencement Date, the Permittee shall pay to the Owner a permit fee ("the Annual Permit Fee") in accordance with this Article.

4.2        On the Commencement Date, the Annual Permit Fee is $6.00.

4.3        The Owner may at any time and in its discretion revise the Annual Permit Fee by giving notice to the Permittee in accordance with Article 8, but the Owner shall not at any time increase the Annual Permit Fee above the rental charged by British Columbia at that time for a similar permit to occupy Crown land.
 
 

ARTICLE 5 - COVENANTS OF THE PERMITTEE

5.1        The Permittee covenants with the Owner:

    1. to pay the Annual Permit Fee due at the address of the Owner set out above or at such other place as the Owner may specify from time to time by giving notice to the Permittee in accordance with Article 8;
     
    1. to pay and discharge when due all applicable taxes, levies, charges and assessments now or hereafter assessed, levied or charged which relate to the Land or any improvements of the Permittee thereon (the "Realty Taxes") which the Permittee is liable to pay;
     
    1. to observe, abide by and comply with all applicable laws, bylaws, orders, directions, ordinances and regulations of any competent government authority in any way affecting the Land or improvements situate thereon, or their use and occupation;
     
    1. not to commit or suffer any wilful or voluntary waste, spoil or destruction on the Land, or do or suffer to be done thereon by the Permittee's employees, contractors, agents, invitees or anyone for whom the Permittee is responsible at law anything that may be or become a nuisance to the Owner or to the occupiers of adjoining land;
     
    1. to deliver to the Owner from time to time, upon demand, receipts or other evidence of payment of Realty Taxes, and other monetary obligations of the Permittee required to be observed by the Permittee pursuant to this permit;
     
    1. to indemnify and save the Owner harmless against all losses, damages, costs and liabilities, including fees of solicitors and other professional advisors, arising out of:
     
      1. any breach, violation or non-performance of any covenant, condition or agreement in this permit by the Permittee, or
       
      1. any personal injury, death or property damage arising out of the Permittee's use and occupation of the Land,
and the Owner may add the amount of such losses, damages, costs and liabilities to the permit fee and the amount so added shall be payable to the Owner immediately;
    1. with respect to the Permittee's use and occupation of the Land, to keep the Land in a safe, clean and sanitary condition satisfactory to the Owner acting reasonably, and with respect to the Permittee's use and occupation of the Land, to make clean and sanitary any portion of the Land or any improvement thereon that the Owner, acting reasonably, may direct by notice in writing to the Permittee;
     
    1. on the termination or cancellation of this permit:
      1. to quit peaceably and deliver possession of the Land to the Owner,
       
      1. to remove from the Land all above-ground works and other improvements to or things on the Land erected or placed on the Land by the Permittee, and
       
      1. to restore the surface of the Land to a condition satisfactory to the Owner, acting reasonably,
and to the extent necessary, this covenant shall survive the termination or cancellation of this permit; and
    1. not to interfere with the activities, works or other improvements of any other person who enters on, uses or occupies the Land under a subsequent right or interest granted by the Owner, or who is otherwise authorized by the Owner to enter on or use or occupy the Land, in accordance with Article 9.
 
ARTICLE 6 - APPURTENANCE AND ASSIGNMENT

6.1        This permit is appurtenant to the Appurtenant Property and passes with a conveyance or other disposition of the estate in fee simple to the Appurtenant Property.

6.2        The Permittee shall give written notice to the Owner of any conveyance or other disposition of the estate in fee simple to the Appurtenant Property within 60 days after that conveyance or other disposition.

6.3        Subject to section 6.1, the Permittee shall not assign this permit or grant a subpermit in respect of any part of the Land without the prior written consent of the Owner.

6.4        This permit burdens the Land.
 
 

ARTICLE 7 - TERMINATION AND CANCELLATION

7.1        This permit terminates if the Water Licence terminates, is abandoned or cancelled, or is amended so as to render this permit unnecessary.

7.2        If the Permittee fails to observe or perform any of the covenants, agreements, provisions or conditions contained herein, and such failure continues for a period of 60 days after the giving of the written notice by the Owner to the Permittee of the nature of the failure, the Owner may cancel this permit and the rights herein granted.

7.3        If the Owner requires a portion of the Land for a public purpose, the Owner may, in accordance with section 7.4 and on 180 days written notice to the Permittee, cancel this permit and the rights granted herein with respect to no more than 5% of the whole of the Land.

7.4        Concurrently with the notice referred to in section 7.3, the Owner will give the Permittee written notice that the Owner will, at its cost, relocate the Permittee's works that are materially affected by cancellation under section 7.3 to a different location on the Land or to a location on other land immediately adjacent to the Land ("the New Location"). The New Location must, in the reasonable opinion of the Permittee, be of sufficient size to accommodate the Permittee's works and be equally suitable for the purposes of the Permittee. The Owner will pay for any reasonable costs of moving the Permittee's works to the New Location. If the Permittee's works cannot be moved to the New Location, the Owner will pay to the Permittee the reasonable costs of constructing new works on the New Location. As full compensation for any costs, expenses or damages which the Permittee may incur in connection with the relocation, including disruption and loss of business, the Owner and the Permittee will agree on a lump sum payment and failing agreement, the matter will be referred to arbitration pursuant to Article 10. All other terms and conditions of this permit will apply to the New Location.

7.5        Notwithstanding subsection 5.1 (h), any works or other improvements to the Land that remain unremoved from the Land upon the termination of this permit pursuant to section 7.1 or upon the cancellation of this permit pursuant to section 7.2 shall, at the discretion of the Owner, be forfeited to and become the property of the Owner.

7.6        If the Owner elects to assume ownership of any above-ground works or other improvements pursuant to section 7.5, the Owner may remove them from the Land and the Permittee shall, on demand, compensate the Owner for all costs incurred by the Owner respecting their removal.

7.7        The rights of the Owner and the obligations of the Permittee under section 7.5 and section 7.6 shall, to the extent necessary, survive the expiration or cancellation of this permit.
 
 

ARTICLE 8 - NOTICE

8.1        Whenever service of a notice or a document is required under this permit, the notice or documents shall be in writing and shall be deemed to have been served if delivered to, or if sent by prepaid registered mail addressed to, the Owner or the Permittee, as the case may be, at the addresses specified for each on the first page of this permit, and where service is by registered mail the notice or document shall be conclusively deemed to have been served on the eighth day after its deposit in a Canada Post office at any place in Canada.

8.2        Either party may, by notice in writing to the other, specify another address for service of notices under this permit and after another address has been specified under this section, notices shall be mailed to that address in accordance with this Article.

8.3        Notwithstanding section 8.1, any written notice to be served or given by the Owner to the Permittee under this permit shall be effectively given or served by posting the same in a conspicuous place on the Land.
 
 

ARTICLE 9 - MISCELLANEOUS

9.1        No term, condition, covenant or other provision herein shall be considered to have been waived by the Owner unless such waiver is expressed in writing by the Owner. Any such waiver of any term, condition, covenant or other provision herein shall not be construed as or constitute a waiver of any further or other breach of the same or any other term, condition, covenant, or other provision and the consent or approval of the Owner to any act by the Permittee requiring the consent or approval of the Owner shall not be considered to waive or render unnecessary such consents or approvals to any subsequent similar act by the Permittee.

9.2        No remedy conferred upon or reserved to the Owner is exclusive of any other remedy herein or provided by law, but such remedy shall be cumulative and shall be in addition to any other remedy herein or hereafter existing at law, in equity, or by statute.

9.3        This permit shall not entitle the Permittee to exclusive use or possession of the Land and the Owner may for any purpose grant to other persons interests in the Land or rights to enter on, use or occupy the Land, or may otherwise authorize other persons to enter on, use or occupy the land, so long as the grant or authorization does not materially affect the exercise of the Permittee's rights hereunder. The question of whether a grant materially affects the exercise of the Permittee's rights hereunder shall be determined by the Owner acting reasonably.

9.4        The terms and provisions of this permit shall extend to, be binding upon and enure to the benefit of the Owner and the Permittee and their successors and permitted assigns.

9.5        The Permittee who conveys or otherwise disposes of the estate in fee simple to the Appurtenant Property (the "Transferor"):

    1. remains liable for any breach of or non-observance or non-performance of the covenants, agreements, provisions or conditions contained herein that occur before that conveyance or other disposition; but
     
    1. if the Transferor obtains and delivers to the Owner within 60 days of the conveyance or other disposition an agreement in the form set out in Schedule "B" and entitled "Acknowledgement of Assignment and Assumption", signed by the Transferor and by the Permittee to whom the estate has been conveyed or otherwise disposed of (the "Transferee"), the Transferor is not liable for any breaches of or non-observance of or non-performance of the covenants, agreements, provisions or conditions contained herein that occur after that delivery.
9.6        Time is of the essence in this agreement.
 
 
ARTICLE 10 - DISPUTE RESOLUTION

10.1        In this Article, "dispute" means any dispute arising out of or in connection with this permit or in respect of any defined legal relationship associated with it or derived from it.

10.2        The parties agree to attempt to resolve all disputes by negotiations conducted in good faith and to provide timely disclosure of all relevant facts, information and documents to further those negotiations.

10.3        If a dispute is not settled through direct negotiations either party may request the British Columbia International Commercial Arbitration Centre (BCICAC) to appoint a mediator to conduct a mediation under its mediation rules of procedure.

10.4        If a dispute is not settled within 15 days of the appointment of the mediator or any further period of time agreed to by the parties, the dispute shall be referred to and finally resolved by arbitration before a single arbitrator under the arbitration rules of procedure of the BCICAC.

10.5        If the BCICAC is unavailable or unable to administer the mediation or arbitration of a dispute under its rules of procedure, the parties will select the rules of another institution.
 
 

ARTICLE 11 - INTERPRETATION

11.1        In this permit, unless the context otherwise requires, the singular includes the plural and the masculine includes the feminine gender and a corporation.

11.2        The captions and headings contained in this permit are for convenience only and are not to be construed as defining or in any way limiting the scope or intent of the provisions herein.

11.3        If any section of this permit or any part of a section is found to be illegal or unenforceable, that part and section of this permit shall be considered separate and severable and the remaining parts or sections, as the case may be, shall not be affected thereby and shall be enforceable to the fullest extent permitted by law.

 
IN WITNESS WHEREOF, the parties have executed this permit as of the day and year first above written.
 
 
SIGNED by a duly authorized signatory of 

in the presence of:
 



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SIGNED by a duly authorized signatory of 

in the presence of:
 



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SCHEDULE "A"
Legal Description
 
 
 
SCHEDULE "B"
Acknowledgement of Assignment and Assumption
 
 

THIS AGREEMENT dated for reference this              day of                                 .
 
 

BETWEEN:
 

        NISGA'A NATION
                                       
        (the "Owner")

 
AND:
 

                                       
        (the "Transferor")
 

AND:
 

                                                   
        (the "Transferee")
 

WHEREAS the Transferor has held a permit (the "Permit of Occupation") granted by the Owner for the occupation of a certain parcel of Nisga'a Lands (the "Land");

AND WHEREAS the Permit of Occupation is appurtenant to certain property (the "Appurtenant Property") and passes with the estate in fee simple to the Appurtenant Property;

AND WHEREAS the Transferor has conveyed or otherwise disposed of to the Transferee the estate in fee simple to the Appurtenant Property;

NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the sums of $1.00, now paid by each party to each of the others, the receipt of sufficiency of which each party hereby acknowledges, and in further consideration of the mutual covenants and agreements herein set out, the parties covenant and agree as follows:
 

1.    In this Agreement:

        "Appurtenant Property" means (legal description)                               
                                                                                                              ;

        "Land" means (description from permit)                                               

        "Permit of Occupation" means the permit to occupy the Land granted
        by the Owner on
                (effective date of Treaty)         , to the holder of British
        Columbia Conditional Water Licence                     ;

        "Permittee" means the holder of the Permit of Occupation;

        "Transfer" means the conveyance or other disposition by the
        Transferor to the Transferee of the estate in fee simple to the
        Appurtenant Property on (date of transfer) ,                                     .
 
2.     The Transferor hereby acknowledges and agrees that by the
        Transfer and from and after the date of the Transfer, the Transferor
        has absolutely assigned to the Transferee all of the Transferor's right
        to occupy the Land as the Permittee pursuant to the Permit of
        Occupation, a copy of which is attached hereto.

3.     The Transferee hereby acknowledges and agrees that by the
        Transfer and from and after the date of the Transfer, the Transferee
        has assumed from the Transferor all of the obligations of the
        Permittee pursuant to the Permit of Occupation and is bound by all of
        the covenants, agreements, provisions or conditions contained therein.

4.    The Owner hereby acknowledges and agrees that, by the Transfer
       and from and after the date of the Transfer, the Transferee has the
       right to occupy the Land as the Permittee pursuant to the Permit of
       Occupation.
 

IN WITNESS WHEREOF each of the Owner, the Transferor and the Transferee has executed this Agreement as of the date and year first above written.
 
 
SIGNED by a duly authorized signatory of 

in the presence of:
 



Name



Address



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SIGNED by a duly authorized signatory of 

in the presence of:
 



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SIGNED by a duly authorized signatory of 

in the presence of:
 



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