APPENDIX C-2
DOCUMENT 12

SPECIAL USE PERMIT FOR
FORESTRY OPERATIONS
 
 

        THIS AGREEMENT made this ________ day of _____________, 199
 

BETWEEN:
 

        NISGA'A NATION,
        of                                 

        (the "Owner")
 

AND:
 

                                            , of

        (the "Permittee")
 

Whereas the Owner has agreed to grant to the Permittee a permit to enter on and use that parcel of land (the "Land") located generally in the vicinity of ________________ and described in the schedule attached and entitled "Legal Description";

Now therefore in consideration of the fee to be paid by, and the covenants of, the Permittee, the parties agree as follows:
 
 

ARTICLE 1 - GRANT OF PERMIT

1.1        The Owner, on the terms set forth herein, hereby grants to the Permittee a permit to enter on and use the Land for the purpose of .
 
 

ARTICLE 2 - DURATION

2.1        The duration of the permit and the rights herein granted shall be for a term of five years commencing on the day of , 199 (the "Commencement Date") unless cancelled in accordance with Article 6.
 
 

ARTICLE 3 - PERMIT FEE

3.1        On the Commencement Date, and on each annual anniversary of the Commencement Date over the term of this permit, the Permittee shall pay to the Owner a permit fee in the amount of $100.
 
 

ARTICLE 4 - COVENANTS OF THE PERMITTEE

4.1        The Permittee covenants with the Owner:

    1. to pay the 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 the giving of 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 that relate to the Land or any of the Permittee's improvements thereon (the "Realty Taxes") that 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 and 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 its 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 occupiers of adjoining land;
     
    1. to deliver to the Owner from time to time, upon demand, proof of insurance provided for in subsection (j), receipts or other evidence of payment of Realty Taxes, insurance premiums 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. to keep the Land in a safe, clean and sanitary condition satisfactory to the Owner acting reasonably, and to make safe, 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. to permit the Owner or its authorized representative to enter upon the Land at any time to examine its condition;
    1. on the expiration or at the earlier 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 buildings, machinery, plant equipment and apparatus and all other improvements to or things on the Land erected or placed on the Land by the Permittee, whether before or after the Commencement Date,
     
      1. if reasonably required by the Owner, to cause an independent site assessment of the Land to be performed by a qualified environmental consultant acceptable to the Owner, and
     
      1. to restore the Land to a safe, clean, sanitary and environmentally sound condition, including by revegetation where required to prevent erosion, satisfactory to the Owner, acting reasonably
and to the extent necessary, this covenant shall survive the expiration or cancellation of this permit;
    1. to effect, and keep in force during the term, insurance protecting the Owner and the Permittee (without any rights of cross-claim or subrogation against the Owner) against claims for personal injury, death, property damage or third party or public liability claims arising from any accident or occurrence on the Land to an amount not less than $1,000,000.00; except that the Owner may, in its sole discretion, waive the requirements of this subsection on the delivery to the Owner of evidence that the Permittee is self insured;
     
    1. notwithstanding subsection (j), the Owner may from time to time notify the Permittee that the amount of insurance posted by the Permittee pursuant to that subsection be changed and the Permittee shall, within 60 days of receiving such notice, cause the amount of insurance posted, pursuant to subsection (j) to be changed to the amount specified by the Owner, acting reasonably, in the notice and deliver to the Owner written confirmation of the change, except that when the Permittee is self-insuring this section shall not apply;
     
    1. not to interfere with the activities, works or other improvements of any other person who enters on or 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 section 9.3;
     
    1. to erect such fences or gates on the Land that the Owner, acting reasonably, may direct by notice in writing to the Permittee;
     
    1. to undertake fire prevention and fire suppression measures as if the Land were within the Permittee's "area of operation" and the activities permitted herein were "industrial activities" under the Forest Practices Code of British Columbia Act, RSBC 1996;
     
    1. not to deposit or permit to be deposited on the Land any slash or refuse, unless the Permittee has first obtained from the Owner a permit specifying the conditions of such deposit;
     
    1. before cutting any timber, erecting any building or other structure, or making any other improvement to the Land, to submit to the Owner a plan showing the location of the cutting or the location and specifications of the building, structure or other improvement proposed for the Land; and
     
    1. not to:
      1. cut any timber on the Land,
       
      1. erect any building or other improvement on the Land, or
       
      1. sell, lease or otherwise dispose of, except bona fide by way of security, any building or other improvement on the Land
without the prior written consent of the Owner.
 
ARTICLE 5 - ASSIGNMENT

5.1        The Permittee shall not assign this permit or grant a subpermit of any part of the Land without the prior written consent of the Owner.
 
 

ARTICLE 6 - CANCELLATION

6.1        If the Permittee fails to observe or perform any term contained herein, and such failure continues for a period of 60 days after the giving of written notice by the Owner to the Permittee of the nature of the failure, the Owner may cancel this permit.

6.2        If this permit is taken in execution or attachment by any person or the Permittee commits an act of bankruptcy, becomes insolvent, is petitioned into bankruptcy or voluntarily enters into an arrangement with its creditors, the Owner may, on 90 days written notice to the Permittee, cancel this permit and the rights herein granted.

6.3        If the Permittee ceases to use the Land for the purposes permitted herein and the Permittee does not recommence its use of the Land within 180 days of receipt of written notice from the Owner, the Owner may immediately cancel this permit and the rights herein granted.

6.4        The Permittee may deliver a written notice to the Owner cancelling this permit and thereafter the permit and the rights herein granted will terminate 180 days after the date of receipt by the Owner of such written notice.

6.5        Notwithstanding subsection 4.1 (i), any building, machinery, plant equipment, apparatus, or other improvements to the Land that remain unremoved from the Land:

    1. upon the cancellation of this permit pursuant to section 6.1 or section 6.4; or
     
    1. thirty days after the expiration of this permit or the cancellation of this permit pursuant to section 6.2 or section 6.3;
shall, at the discretion of the Owner, be forfeited to and become the property of the Owner.

6.6        If the Owner elects to assume ownership of any above-ground building, machinery, plant equipment, apparatus or other improvements to the Land pursuant to section 6.5, 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.

6.7        The rights of the Owner and the obligations of the Permittee under section 6.5 and section 6.6 shall, to the extent necessary, survive the expiration or cancellation of this permit.
 
 

ARTICLE 7 - SECURITY

7.1        The security in the sum of $n and all rights, privileges, benefits and interests accruing thereto delivered by the Permittee to the Owner (herein called the "Security") to guarantee the performance of the Permittee's obligations under this permit shall be maintained in effect until such time as the Owner certifies in writing that such obligations have been fully performed. The Owner may, in its sole discretion, waive the requirements of this section.

7.2        In the event the Permittee defaults in the performance of any of its obligations hereunder, the Owner may, in its sole discretion, sell, call in and convert the Security, or any part of it, and such Security shall be deemed to have been absolutely forfeited to the Owner.

7.3        The rights of the Owner under this Article shall be deemed to continue in full force and effect notwithstanding the expiration or earlier cancellation of this permit.

7.4        Notwithstanding any amount of Security stated to be required under section 7.1 the Owner may, acting reasonably, from time to time by notice to the Permittee, demand the amount to be changed to that specified in a notice and the Permittee shall, within 60 days of such notice, change the Security to that specified and provide the Owner with evidence of the change, except that while Security is waived under section 7.1, this section shall not apply.
 
 

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. If there is a disruption in mail service caused by labour dispute, civil unrest or other events beyond the control of the parties, between mailing and actual receipt of such notice, the party sending such notice will re-send by courier, fax or other electronic means and such notice will only be effective if actually received.

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.
 
 

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 possession of the Land and the Owner may for any purpose grant to others interests in the Land or rights to enter on or use or occupy the Land, or may otherwise authorize other persons to enter on or 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 parties hereto and their successors and permitted assigns.

9.5        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 license 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 or section, as the case may be, shall be considered separate and severable and the remaining parts and sections of this permit, 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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LEGAL DESCRIPTION SCHEDULE
 
  1. Legal Description
  1. Sketch Plan